R v Terkmani

Case [2009] NSWCCA 142


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Terkmani [2009] NSWCCA 142

FILE NUMBER(S):
2007/14794

HEARING DATE(S):
29 April 2009

JUDGMENT DATE:
11 May 2009

PARTIES:
Crown (Applicant)
Abdullah Terkmani (Respondent)

JUDGMENT OF:
Grove J Buddin J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/14794

LOWER COURT JUDICIAL OFFICER:
Cogswell SC DCJ

LOWER COURT DATE OF DECISION:
14 November 2008

COUNSEL:
P Miller (Crown)
M Ramage QC (Respondent)

SOLICITORS:

CATCHWORDS:
CRIMINAL LAW
SENTENCING
CROWN APPEAL
whether sentence manifestly inadequate
whether correct maximum penalty taken into account
offence contrary to s 112(2) of Crimes Act
whether error in characterisation of objective seriousness of offence
whether general deterrence taken into account
whether threatened use of a weapon taken into account as an aggravating factor

LEGISLATION CITED:
Crimes Act 1900 s 112(2)
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)(c), s 9

CATEGORY:
Principal judgment

CASES CITED:
House v King (1936) 55 CLR 499
Markarian v The Queen (2005) 79 ALJR 1048
MLP v Regina [2006] NSWCCA 271
R v Johnson [2004] NSWCCA 140
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 166
Regina v Joel Tory; Regina v Luke Tory [2006] NSWCCA 18
Regina v Millar [2005] NSWCCA 202
Regina v Price [2005] NSWCCA 285
Regina v Shankley [2003] NSWCCA 253

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/1479

GROVE J
BUDDIN J
PRICE J

11 May 2009

R v TERKMANI

Judgment

  1. GROVE J:  I agree with Price J. 

  2. BUDDIN J:  I agree with Price J.

  3. PRICE J:  This is an appeal by the Crown against what is said to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court at Parramatta on 14 November 2008.

  4. The respondent had pleaded not guilty to a single count on an indictment that [he] on 15 December 2004 at Oxley Park did break and enter a dwelling house situated at 71 Canberra Street, and did commit a serious indictable offence therein, namely, assault Dean Phillips, thereby occasioning to him actual bodily harm, in circumstances of aggravation namely, at the time the said Abdullah Terkmani was in company with an unknown male. This was an offence contrary to s 112(2) of the Crimes Act 1900. On 25 August 2008, the jury returned a verdict of guilty.

  5. The Judge sentenced the respondent to a term  of imprisonment consisting of a non-parole period of 2 years commencing on 27 August 2008 and expiring on 26 August 2010 with a balance of term of 2 years commencing on 27 August 2010 and expiring on 26 August 2012.

  6. An offence contrary to s 112(2) is punishable by 20 years imprisonment. A standard non-parole period of 5 years imprisonment applies.

  7. There is one ground of appeal which is that the sentence is manifestly inadequate.  The Crown submitted that there were a number of discrete errors by the Judge which provide some explanation for the manifest inadequacy of the sentence.…

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Details
AGLC
R v Terkmani [2009] NSWCCA 142
Case
[2009] NSWCCA 142
Decision Date

CaseChat Overview and Summary

The appeal by the Crown concerns the sentencing of Abdullah Terkmani, who was found guilty of an offence contrary to section 112(2) of the Crimes Act. The central issue is whether the sentence imposed by the trial judge was manifestly inadequate. The Crown argues that the trial judge erred in several respects, leading to a sentence that was insufficient. The errors identified by the Crown include the misapplication of the maximum penalty, an incorrect assessment of the objective seriousness of the offence, failure to consider the threatened use of a weapon as an aggravating factor, a lack of consideration for general deterrence, and an overemphasis on the respondent's youth and rehabilitation prospects. These points were not presented as separate grounds of appeal but were grouped together to argue for an inadequate sentence.

The trial judge found that Terkmani, along with an accomplice, had violently attacked Dean Phillips at his home. The attack involved the use of a brick and a knife, resulting in significant physical injuries to Phillips. The Crown contends that these factors warranted a harsher sentence, yet the trial judge's decision did not adequately account for them. The Crown's arguments aim to highlight the perceived deficiencies in the sentencing process, arguing that they cumulatively resulted in a manifestly inadequate sentence.

In assessing the Crown's appeal, the court examined the trial judge's sentencing approach and the factors considered. The court noted the trial judge's characterisation of the offence's seriousness, the application of the maximum penalty, and the weight given to aggravating and mitigating factors. The court found that while the trial judge did not err in every respect, the overall sentence did not sufficiently reflect the gravity of the offence and the need for general deterrence. The court determined that the sentence was indeed manifestly inadequate and allowed the appeal. The matter was remitted to the trial judge for re-sentencing.

The final orders of the court included the allowance of the Crown's appeal on the ground of manifest inadequacy of the sentence, and the matter was remitted to the trial judge for a new sentencing hearing that appropriately considers the relevant factors and ensures that the sentence reflects the seriousness of the offence and the need for general deterrence.

Orders

Orders of the court

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Background

Background to the litigation

There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown submitted that there were a number of discrete errors by the Judge which provide some explanation for the manifest inadequacy of the sentence. The Crown argued that:(i)His Honour was in error as to the applicable maximum penalty. (ii)His Honour was in error in finding that this offence did not fall within the middle of the range of objective seriousness but fell below it and thus was in error in departing from the standard non-parole period on that basis.(iii)His Honour was in error in not taking into account as an aggravating factor the threatened use of a weapon. (iv)His Honour failed to reflect general deterrence in the sentence.(v)His Honour placed too much emphasis on the respondent’s youth and prospects of rehabilitation. None of these matters were advanced by the Crown as separate grounds of appeal. FACTS When sentencing the respondent, the Judge found the following facts (ROS 1-2): “It was about 7.30 on the night of 15 December 2004. Dean Phillips was at home with a friend, Kristina Wren. Mr Philips’ house mate, Anthony Halliwell was away for the weekend. Mr Phillips heard the front door bell ring. He ignored it. It kept ringing. Mr Phillips looked through the front window and saw a man – the jury found beyond reasonable doubt that it was Abdullah Terkmani – standing outside the house. He was standing there with somebody else. Mr Phillips recognised neither of them. The men were demanding to know where Tony Halliwell was. Mr Phillips told them to go away and that he was going to call the police. What happened then must have been a shocking experience for both Mr Phillips and Ms Wren. It is a householder’s nightmare. Mr Terkmani went next and got a brick from a pile of bricks. He threw it through the front window of Mr Phillips’ home. He then produced a knife. He tried to get into the house through the broken window. The other man stayed on the porch while this was happening. Mr Phillips tried to resist Mr Terkmani getting in. The other man helped by pulling the curtain back. Mr Terkmani got in. He demanded that Mr Phillips open the door for his accomplice. Mr Phillips did so, opening the back door. The other man came in. Then they both started punching Mr Phillips with their fists. Mr Phillips fell to the ground and they continued to assault him.The result of the assault was that Mr Phillips ended up with a black eye, a bleeding nose and a tooth that went through his top lip. This left him with blurred vision and a sore jaw. The men kept looking for Anthony Halliwell. The other man produced a syringe. He demanded that Mr Phillips and Ms Wren remove their shirts but they refused. Mr Terkmani who was in another part of the house came back at that time and suggested that they leave. The other man threatened the two with the syringe but then left with Mr Terkmani. A neighbour called the police who arrived a short time afterwards. Mr Terkmani got away but was detected to be the offender because he had left DNA on the brick.”Respondent’s subjective case

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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