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R v Tuncbilek

R v Tuncbilek

Case [2004] NSWCCA 139 11 May 2004

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CITATION: R v Tuncbilek [2004] NSWCCA 139

HEARING DATE(S): 15 April 2004

JUDGMENT DATE:
11 May 2004

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Simpson J at 3

DECISION: (i) leave to appeal granted; (ii) appeal allowed, sentences quashed; (iii) in lieu thereof, the applicant sentenced to terms of imprisonment as follows - Count 1: non-parole period of three years and six months, commencing 3 March 2003 and expiring on 2 September 2006, with a balance of term of one year and ten months, expiring on 2 July 2008; Count 2: non-parole period of three years, commencing on 3 March 2005 and expiring on 2 March 2008, with a balance of term of two years, expiring on 2 March 2010.

CATCHWORDS: appeal against sentence - assault with intent to rob - aggravated car-jacking - pleas of guilty - special circumstances - sentencing proceedings - parity - proportion between non-parole period and total sentence

LEGISLATION CITED: Crimes Act 1900, s97, s154C
Crimes (Sentencing Procedure) Act 1999, s21A, s44(2), s54A(2), s54B, s101A
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

CASES CITED: R v Fahda [1999] NSWCCA 267
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Scognamiglio (1991) 56 ACrim R 81
R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131

PARTIES :
Crown - Respondent
Tarkan Tuncbilek- Applicant

FILE NUMBER(S): CCA 60506/03

COUNSEL: R Cogswell SC - Crown
J Stratton SC - Applicant

SOLICITORS: S Kavanagh - Crown
B Duchen- Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0507; 03/11/0734

LOWER COURT
JUDICIAL OFFICER : Berman DCJ

60506/03

SPIGELMAN CJ
WOOD CJ at CL
SIMPSON J
Tuesday 11 May 2004

REGINA v Tarkan TUNCBILEK

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.

3 SIMPSON J: The applicant seeks leave to appeal against the asserted severity of two sentences imposed upon him in the District Court on 11 September 2003 following his pleas of guilty to a charge of assault with intent to rob whilst armed with an offensive weapon (an offence against s97 of the Crimes Act 1900) and an offence of aggravated assault with intent to take or drive a motor vehicle, this offence having been committed in company (an offence against s154C(2) of the Crimes Act and shortly known as “aggravated car-jacking”, the circumstance of aggravation being that it was committed in company). The first count carries a maximum penalty of imprisonment for twenty years, the second imprisonment for fourteen years. On the first count, Berman DCJ sentenced the applicant to imprisonment for a fixed term of seven years, dating from 3 March 2003 and expiring on 2 March 2010. On the second count, he sentenced the applicant to imprisonment for seven years with a non-parole period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tuncbilek

Details

AGLC: R v Tuncbilek [2004] NSWCCA 139
Case: [2004] NSWCCA 139
Decision Date: 11 May 2004

CaseChat Overview and Summary

In the case of R v Tuncbilek, the appellant faced sentencing proceedings in the Supreme Court of New South Wales following pleas of guilty to charges of assault with intent to rob and aggravated car-jacking. The court was tasked with determining the appropriate sentence, taking into account the special circumstances of the case. The appellant's legal representatives argued that the sentence should be proportionate to the offence, considering the principles of parity and the relationship between the non-parole period and the total sentence. The prosecution, on the other hand, contended for a sentence that reflected the severity of the crimes committed.

The legal issues before the court centred on the appropriate balance between the principles of parity and proportionality in sentencing. The court had to consider the totality of the appellant's offending, the severity of the crimes, and the need for general and specific deterrence. Additionally, the court needed to ensure that the sentence was commensurate with similar cases and did not unduly exacerbate the disparity between the non-parole period and the overall sentence.

The court determined that while the crimes were serious, the appellant's background and the circumstances of the offending warranted a sentence that reflected a degree of leniency. The court took into account the appellant's guilty pleas, the lack of previous convictions, and the remorse expressed. In arriving at the final sentence, the court considered the principles of parity, ensuring that the sentence was consistent with sentences imposed in similar cases. The court also examined the proportionality between the non-parole period and the total sentence, ensuring that the sentence was neither excessively harsh nor unduly lenient.

The final orders of the court included a sentence that balanced the need for punishment and deterrence with the principles of parity and proportionality. The court imposed a total sentence that included a non-parole period deemed appropriate given the nature of the offences and the appellant's background. The court's decision aimed to achieve a just outcome that was consistent with the sentencing principles applicable to similar cases.

Orders