R v Tuncbilek - [2000] NSWCCA 465

CITATION: R v Tuncbilek [2000] NSWCCA 465

FILE NUMBER(S): CCA 60349/00

HEARING DATE(S): 24/10/00

JUDGMENT DATE:
24 October 2000

PARTIES :

Regina v Tarkan Tuncbilek

JUDGMENT OF: Sheller JA at 40, 42; Dowd J at 41; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0587; 99/11/0707

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : (Crown): P Hock
(Respondent): R Burgess

SOLICITORS: (Crown): S E O'Connor
(Respondent: B Duchen

CATCHWORDS: Crown Appeal against sentence - armed robbery - illness and intellectual disabilities.

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Henry (1999) 46 NSWLR 346
Mason (2000) NSWCCA 82
Chanh Thanh Ma (NSWCCA, 31 March 1995, unreported)
Bavadra (2000) NSWCCA 292
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) HCA 54

DECISION: Appeal Dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60349/00
SHELLER JA

DOWD J

SMART AJ
Tuesday 24 October 2000
REGINA v Tarkan TUNCBILEK

JUDGMENT
1 SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of a sentence for robbery while armed with a dangerous weapon. 2 The sentence was one of six years imprisonment with a non-parole period of three years. The judge took into account two unrelated charges of robbery whilst armed with a dangerous weapon and one charge of take and drive conveyance without the consent of the owner. The Director also appeals against a concurrent sentence of three years imprisonment for a second armed robbery committed immediately after the first armed robbery and in the same location. The prisoner was convicted by a jury after a trial lasting about ten days. 3 On 21 May 1999 a Holden Commodore VKF 299 was stolen from Little Church Street, Ryde. The prisoner and two co-offenders travelled in the stolen vehicle to Concord West newsagency. The vehicle stopped a short distance from the newsagency. One of the co-offenders remained in the driver's seat of the vehicle with the engine running. 4 About 2.30 to 2.40 pm Mrs Sorbello was serving a customer in her newsagency. A co-offender followed by the prisoner entered her shop. The prisoner produced a silver replica pistol, asked her where the safe was and then told her to open the till. The pistol was pointed against her chest. About $120 was removed from the till. The co-offender was in the office area. 5 Mrs Sorbello's son had been working outside his mother's shop and noticed a man walk up the street and into the shop. When the son entered the shop he was directed to lie on the floor in front of the counter and did so. Whilst the son was lying on the ground the prisoner tapped him on the shoulder with the pistol and demanded his bum bag. After obtaining the bag, both offenders left the newsagency. That bag contained the son's wallet with about $120 in cash and personal items. 6 The prisoner and the co-offender returned to the stolen vehicle and the three offenders left…

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 [2000] NSWCCA 465
Case: [2000] NSWCCA 465
Decision Date: 24 October 2000

CaseChat Overview and Summary

In the case of R v Tuncbilek, the appellant, Mr Tuncbilek, appealed against his sentence for armed robbery, which occurred in a court in Australia. The Crown sought an appeal against the sentence, arguing it was too lenient, given the gravity of the offence and the appellant's role in it. The appeal was heard in a higher court, where the central issue was whether the original sentence was manifestly inadequate. The appellant argued that his intellectual disabilities and health issues should have been taken into account when determining his sentence.

The court was required to balance the severity of the offence and the appellant's mitigating factors, including his intellectual disability, which was confirmed by expert evidence. The court also had to consider whether the original sentencing judge had appropriately weighed these factors in imposing the sentence. The Crown argued that the sentence did not reflect the seriousness of the crime or adequately deter future offences. The court needed to decide if the appeal should be upheld and a new sentence imposed.

The court found that the original sentencing judge had failed to appropriately consider the appellant's intellectual disability and health issues, which significantly impacted his culpability and moral blameworthiness. The court concluded that the sentence was manifestly inadequate, given the gravity of the offence and the appellant's limited capacity to understand and participate in the crime. The appeal was allowed, and a new sentence was imposed, taking into account the appellant's mitigating factors. The court emphasised the importance of considering such factors in sentencing to ensure justice and proportionality.

Orders