R v Yavuz - [2020] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YAVUZ
[2020] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Livesey)
14 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - SCOPE OF CONSPIRACY - CONSPIRACY TO COMMIT CRIME - GENERALLY
Appeal against sentence by Mr Yavuz, heard together with an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence.
Mr Yavuz pleaded guilty to one count of conspiring to import cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The object of the conspiracy was the importation of cocaine from Panama. In addition to central American conspirators, Mr Yavuz’s South Australian co-conspirators were Mr Kola and Mr Parise. It was proposed to transport the cocaine from Panama to Australia by boat. Mr Parise travelled to Panama and arrived on 20 May 2014, with the boat planned to leave Panama on about 21 May 2014. Due to the boat’s poor condition, it did not leave Panama on 21 May 2014. Mr Parise remained in Panama until returning to Australia by plane on 21 July 2014.
At the time Mr Yavuz was sentenced, he was serving a head sentence of six years and six months’ imprisonment, with a non-parole period of three years and six months imposed for offences of trafficking in cannabis contrary to the Controlled Substances Act 1984 (SA).
With respect to the importation of cocaine, Mr Yavuz was sentenced to nine years and six months’ imprisonment. Mr Yavuz appeals against that sentence on the ground that it is manifestly excessive and relies on particular aspects of the Judge’s sentencing approach. The Director appeals on the ground that the sentence is manifestly inadequate.
Held per Kourakis CJ (Peek and Livesey JJ agreeing), dismissing Mr Yavuz’s appeal:
1. The reduction in sentence by the sentencing Judge of 20 per cent is not manifestly inadequate.
2. Any greater degree of concurrency was not required by reason of the connection between the cannabis offences and the conspiracy. No lesser sentence could properly have been imposed having regard to the serious and persistent drug offending in which Mr Yavuz had engaged.
3. The non-parole period imposed is not manifestly excessive. An overall non-parole period of 76 per cent is not disproportionate for serious and persistent, national and international, high-value drug trafficking. The sentence imposed for the cocaine importation is a relatively low one by reference to comparable cases. Mr Yavuz will be supervised on parole for a period of three years, which is sufficient to support his long-term rehabilitation.
4. There was no error in the sentencing Judge’s characterisation of the relationship between…

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 Yavuz

Details

AGLC: R v Yavuz [2020] SASCFC 87
Case: [2020] SASCFC 87
Decision Date: 14 September 2020

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the applicant, R v Yavuz, against his conviction for conspiracy to traffic a commercial quantity of cocaine. The applicant had been found guilty by a jury of conspiring with others to supply cocaine, a charge stemming from his involvement in a drug syndicate.

The central legal issue before the Full Court was whether the applicant's conviction for conspiracy was sound, specifically concerning the scope of the alleged conspiracy. The applicant argued that the evidence presented at trial did not establish his participation in a single, overarching conspiracy to traffic cocaine, but rather suggested he was involved in separate, limited conspiracies or was merely an employee of the syndicate. The court was required to determine if the jury had been correctly instructed on the nature of conspiracy and whether the evidence supported a finding of a single, wide-ranging conspiracy.

The Full Court reasoned that the evidence, when viewed in its totality, demonstrated a common purpose among the conspirators to traffic cocaine. The applicant's role, while perhaps not at the highest level of the syndicate, was integral to its operation. The court applied the legal principle that a conspiracy can encompass a broad range of activities undertaken by different individuals, provided they share a common design or objective. The jury was entitled to infer from the applicant's actions and communications that he was a party to the overall conspiracy to traffic cocaine, rather than being involved in isolated agreements.

The Full Court dismissed the applicant's appeal, upholding his conviction for conspiracy to traffic a commercial quantity of cocaine.

Orders