R v Turkmani - [2002] NSWCCA 388

Reported Decision:
(2002) 133 A Crim R 328

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bassam Turkmani [2002] NSWCCA 388

FILE NUMBER(S): CCA 60197/2002

HEARING DATE(S): 23/09/2002

JUDGMENT DATE:
23 September 2002

PARTIES :

Regina
Bassam Turkmani

JUDGMENT OF: Buddin J at 1; Smart AJ at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0621
97/11/1085

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : P Barrett (Crown)
J Doris (Applicant)

SOLICITORS: SE O'Connor (Crown)
Neil J O'Connor & Associates (Applicant)

CATCHWORDS: Sentence - appeal against severity - pleas of guilty to two counts of knowingly take part in the manufacture of amphetamines - matters taken into account on Form 1 documents - second offence committed whilst on bail for the first offence - need to properly assess applicant's role in offences - whether principles in De Simoni offended - applicant aged 18 at time of first offence - harsher than normal circumstances of incarceration including an assault upon the applicant by prison officers - pleas of guilty at first reasonable opportunity to lesser offences than originally charged - error demonstrated.

LEGISLATION CITED: Corrections Act 1952
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CASES CITED:
Cameron v R (2002) 187 ALR 65
Pearce v The Queen (1998) 194 CLR 610
R v Fabian (1992) 64 A Crim R 365
R v Laurentiu and Becheru (1992) 63 A Crim R 402
R v Le Cerf (1975) 13 SASR 237
R v Morgan (1993) 70 A Crim R 368
R v Olbrich (1999) 199 CLR 270
R v Readman (1990) 47 A Crim R 181
R v Solomons (2000) 114 A Crim R 89
R v Thomson & Houlton (2000) 49 NSWLR 383
The Queen v De Simoni (1981) 147 CLR 383

DECISION: Leave to appeal granted. Appeal allowed (in part). In relation to the sentence imposed in respect of the Dural matter the sentence passed in the District Court is quashed. In lieu thereof the applicant is sentenced to imprisonment for six years to date from 5 September 2000 and to expire on 4 September 2006. A non-parole period of three and a half years to date from 5 September 2000 and to expire on 4 March 2004. The sentence in relation to the Brookvale matter is confirmed.

60197/02

BUDDIN J
SMART AJ
MONDAY 23 SEPTEMBER 2002

REGINA v BASSAM TURKMANI

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two separate offences on 21 March 2001. In respect of each matter he pleaded guilty to “knowingly take part in the manufacture of a prohibited drug” contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. On each occasion the prohibited drug was methylenedioxymethylamphetamine (MDMA). The maximum penalty for that offence is imprisonment for fifteen years and/or a fine of 2000 penalty units.…

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 Turkmani

Details

AGLC: R v Turkmani [2002] NSWCCA 388
Case: [2002] NSWCCA 388
Decision Date: 23 September 2002

CaseChat Overview and Summary

The appellant, Turkmani, appealed against the severity of the sentence imposed by the court. Turkmani had entered pleas of guilty to two counts of knowingly taking part in the manufacture of amphetamines. The court was required to decide whether the sentence imposed was appropriate, taking into account the Form 1 documents which detailed the matters considered during sentencing. An important issue was whether Turkmani's second offence, committed while on bail for the first offence, should have influenced the assessment of his role in the offences. Additionally, the court needed to determine if the principles in De Simoni were properly applied in this case.

The court considered the nature and circumstances of the offences, Turkmani's age at the time of the first offence, and the fact that he had pleaded guilty at the first reasonable opportunity to lesser offences than originally charged. It was noted that Turkmani had faced harsher than normal circumstances of incarceration, including an assault by prison officers. The court found that the principles in De Simoni had not been properly applied, as the need to properly assess Turkmani's role in the offences was not adequately addressed. The court concluded that the sentence imposed was too severe and granted the appeal.

The court ordered a resentencing hearing to be conducted, where the proper assessment of Turkmani's role in the offences would be taken into account. The court emphasised the importance of adhering to the principles in De Simoni to ensure that sentences are proportionate and appropriate in each case. Turkmani's age and the error demonstrated in the original sentencing process were also considered in the resentencing hearing. The final orders of the court were not provided in the text.

Orders