R v Yavuz
[2018] SASCFC 24
•13 April 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YAVUZ; R v SOYLER; R v BAYRAKTAR
[2018] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)
13 April 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
Appeal against sentence.
Each of the appellants pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984. In addition, Mr Yavuz pleaded guilty to one count of cultivating controlled plants for sale contrary to s 33B(3) of the same Act.
The offending was detected by police investigations using telephone intercepts indicating that the appellants, together with others, were involved in, or connected to, a cannabis trafficking enterprise.
On 31 July 2017, the following sentences were imposed:
• Mr Yavuz - imprisonment for six years and six months (reduced from an implied starting point of nine years and six months) with a non-parole period of three years and six months.
• Mr Soyler - imprisonment for six years and nine months (reduced from an implied starting point of eight years) with a non-parole period of three years.
• Mr Bayraktar – imprisonment for seven years, two months and 12 days (reduced from an implied starting point of eight years) with a non-parole period of three years.
All three appellants were granted permission to appeal on the ground that the sentences imposed were manifestly excessive. Mr Soyler and Mr Bayraktar were also granted permission to appeal on the ground that the sentencing Judge failed to adequately take into account the principle of parity. In addition the question whether the sentencing Judge erred in declining to suspend Mr Yavuz’s and Mr Bayraktar’s sentences under s 38 of the Criminal Law (Sentencing) Act 1988 (Sentencing Act) and whether the sentencing Judge erred in declining to suspend each of the appellants’ sentences and order that they be served on home detention under to s 33BB of the same Act were referred to the Court of Criminal Appeal.
Held by the Court (Kourakis CJ, Blue and Hinton JJ):
In relation to Mr Yavuz:
1. Mr Yavuz intended to traffic in significant quantities of cannabis for no other reason than financial gain. He played a central role in the sourcing of cannabis in South Australia and its onward transportation to and sale in Western Australia. The offending for which he pleaded guilty occurred against a background of dealing in cannabis. He willingly involved himself in the offending, persisted even after the apprehension of one of his customers in Western Australia and was intending to traffic in large commercial quantities on an ongoing basis. In the circumstances a starting point of nine and a half years for all three offences was not plainly unjust.
2. Mr Yavuz’s circumstances do not amount to exceptional circumstances such as to warrant an order that the sentence be suspended under s 38(2ba) of the Sentencing Act.
3. Whilst exceptional circumstances need not be shown for the purposes of s 33BB of the Sentencing Act a relevant factor in the exercise of the discretion contained in s 33BB(1) is the punitive experience contemplated by s 38(2), namely that ordinarily the sentence of imprisonment imposed will be served in prison. The punitive experience manifest in home detention would not achieve the punitive and deterrent purposes of the sentence in Mr Yavuz’s circumstances.
4. Permission to appeal on grounds 2, 3 and 4 of the amended Notice of Appeal is refused.
5. The appeal is dismissed.
In relation to Mr Soyler:
1. Mr Soyler’s offending was confined to participation in the transportation of two consignments from South Australia to Western Australia, his participation in the sale of those consignments in Western Australia, and his collection of the proceeds of the same. His motive in participating was solely financial. In the circumstances a starting point of four years for each offence to which he pleaded, or an overall starting point of eight years imprisonment, was not plainly unjust.
2. Mr Yavuz’s culpability was of a higher order than Mr Soyler’s. Nothing in Mr Yavuz’s personal circumstances explained why the starting point nominated for his trafficking offences equalled that applied to Mr Soyler whose culpability was considerably less. The sentences imposed upon Mr Soyler give rise to a justifiable sense of grievance and the appearance of injustice.
3. The sentence imposed on 31 July 2017 is set aside.
4. Pursuant to s 18A of the Sentencing Act the appellant is sentenced to imprisonment for five years and 11 months. A non-parole period of two years and 11 months is fixed. That sentence is to commence from 31 July 2017.
In relation to Mr Bayraktar:
1. Aware of Mr Yavuz’s interest in purchasing cannabis, Mr Bayraktar took the opportunity to sell to him when the supplier from whom his father obtained cannabis for personal use had an excess supply. Mr Bayraktar largely facilitated his father’s arrangements and the profit he stood to gain was to be shared with his father. There is nothing to suggest that Mr Bayraktar knew of any plans to supply cannabis to Western Australia. The sales made to Mr Yavuz were not part of a regular arrangement. There was no suggestion of any activity in between, and no involvement with the other supplies made to Mr Yavuz. Mr Bayraktar did commit the two counts of trafficking against a background of having been involved in a similar transaction and an admitted preparedness, prior to detection, to do so again. In all the circumstances, the starting point of four years for both offences to which Mr Bayraktar pleaded guilty, and the resultant overall starting point of eight years, was unreasonable and plainly unjust.
2. The appeal is allowed.
3. The sentence imposed on 31 July 2017 is set aside.
4. Pursuant to s 18A of the Sentencing Act the appellant is sentenced to imprisonment for five years and five months. A non-parole period of two years and eight months is fixed. That sentence is to commence from 31 July 2017.
Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, s 18A; Controlled Substances Act 1984 (SA) s 32(1), s 33B(3), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Green v The Queen (2011) 244 CLR 462; Hili v The Queen (2010) 242 CLR 520; R v Dell; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Kong (2013) 115 SASR 425; R v Lyberopoulos [2017] SASC 139; R v Mangelsdorf (2013) 115 SASR 425; R v Palmer [2016] SASCFC 34; R v Skinner (2016) 126 SASR 120 ; R v Young (2016) 126 SASR 41, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Hucks [2016] SASCFC 92; R v Kite (1971) 2 SASR 94; R v Lagana [2012] SASCFC 135; R v Mustac (2013) 115 SASR 461; R v Standley [2016] SASCFC 141; The Queen v Robinson (1979) 22 SASR 367, considered.
R v YAVUZ; R v SOYLER; R v BAYRAKTAR
[2018] SASCFC 24Court of Criminal Appeal: Kourakis CJ, Blue and Hinton JJ
THE COURT.
Introduction
As a consequence of their involvement in, or connection to, a cross-state cannabis trafficking enterprise, each of the three appellants was charged with, and pleaded guilty to, two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (the Controlled Substances Act). In addition, Mr Yavuz pleaded guilty to one count of cultivating controlled plants for sale, contrary to s 33B(3) of the same Act. In the case of each appellant, the sentencing Judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act), those penalties being:
·Mr Yavuz – imprisonment for six years and six months (reduced from an implied starting point of nine years and six months) with a non-parole period of three years and six months.
·Mr Soyler – imprisonment for six years and nine months (reduced from an implied starting point of eight years) with a non-parole period of three years.
·Mr Bayraktar – imprisonment for seven years, two months and 12 days (reduced from an implied starting point of eight years) with a non-parole period of three years.
Each of Messrs Yavuz, Soyler and Bayraktar now appeals against his sentence.
Mr Yavuz sought and was granted permission to appeal on the ground that the sentence imposed upon him was manifestly excessive. In addition, the following grounds raised by Mr Yavuz were referred to the Full Court. That the sentencing Judge erred:
2.in finding “there are no good grounds to suspend the sentence of imprisonment and sentences of home detention are not appropriate for this serious offending”;
3.in concluding that “I do not think exceptional circumstances have been made out in the cases of any of you”;
4.in declining to suspend the sentence and order that it be served on home detention pursuant to s 33BB of the Sentencing Act.
Mr Soyler sought permission to appeal against his sentence on the grounds that:
1.the head sentence and non-parole period are manifestly excessive;
2.the sentencing Judge failed to adequately take into account the principle of parity;
3.the sentencing Judge erred in declining to suspend the sentence and order that it be served on home detention pursuant to s 33BB of the Sentencing Act.
Mr Soyler was granted permission to appeal on grounds one and two and ground three was referred to the Full Court.
Mr Bayraktar sought permission to appeal against his sentence on the same grounds as Mr Soyler save that he also contended that the sentencing Judge erred in declining to suspend his sentence under to s 38(2ba) of the Sentencing Act.
A Judge of this Court granted Mr Bayraktar permission to appeal on the grounds that the sentence was manifestly excessive and that the sentencing Judge failed to adequately take into account the principle of parity. The Judge referred the remaining grounds to the Full Court.
The circumstances of the offending and the gravity of the conduct
The sentencing Judge summarised the appellants’ offending conduct as follows:
Ibrahim Yavuz, Fatih Soyler and Ugur Bayraktar, in 2014 police investigations – initially by way of telephone intercepts, showed that the three of you, together with others, were dealing in cannabis and in your case, Yavuz, that you had been growing it. Each of you was in one way or another involved in shipping large amounts of cannabis to Western Australia where the drug fetches a handsome price, some $4,000 per kg, significantly more than it fetches here in South Australia.
In addition to growing cannabis, you, Yavuz, were a dealer in the drug. Your main business was to arrange for its purchase here in South Australia and its subsequent sale in Western Australia. In the course of your dealings you committed a number of offences but not all of them are the subject of charges. I sentence you only for the three offences to which you have pleaded guilty, but I do so against a background of dealing in cannabis.
The Judge referred to others involved in the wider enterprise, some of whom had been charged and sentenced. In acknowledgement of the importance of parity, the Judge stated that he had read the sentencing remarks of the judges who had sentenced the other participants and considered that the roles of those other participants were different to the roles undertaken by the appellants.
The Judge then continued:
Between March and May 2015,[1] you, Yavuz, arranged to purchase two pounds of cannabis from Bayraktar at $2,300 per pound so that a man named … [AK] …, who is yet to be tried, could on-sell it on behalf of you and him. That conduct is uncharged against each of you, Yavuz and Bayraktar.
Again, in your case, Bayraktar, I sentence you only for the two offences to which you have pleaded guilty, but I do so against the background of your having dealt in the drug.
In the same period you, Yavuz, arranged to purchase from Bayraktar 10 pounds of cannabis at $2,200 per pound and … [AK] … attempted to sell that cannabis on behalf of himself and of you. That conduct is not the subject of any charge against you, Yavuz, but it is the conduct the subject of the first count of trafficking charged against you, Bayraktar.
In August 2014, you, Yavuz, bought 10 pounds of cannabis from Bayraktar for $2,200 per pound. Soyler, you took that cannabis to Western Australia where you saw to its sale and you collected the proceeds. That conduct is the subject of the second charge of trafficking against you, Bayraktar, and the first count of trafficking against you, Soyler. It is uncharged against you, Yavuz.
In September 2014, you, Yavuz, arranged shipment of 22 pounds of cannabis to Western Australia where it was to be sold. Soyler, you took the drug to Western Australia where you again saw to its sale and collected the proceeds. In respect of that conduct, Yavuz, you pleaded guilty in the Magistrates Court to a count of trafficking in a large commercial quantity of cannabis and were committed to this court for sentence. It is the conduct the subject of the second occasion of your committing such an offence. Soyler, it is count 3 on the Information against you.
In late August and into September, Yavuz, you arranged for a shipment of some 17 pounds of cannabis to Western Australia. Soyler and Bayraktar, you were not involved in that shipment. In respect of that shipment, you, Yavuz, pleaded guilty again in the Magistrates Court and were committed for sentence.
In October 2014, police officers discovered the remains of a cannabis crop at your family-owned property at Ryan Road at Waterloo Corner, Yavuz. I sentence you on the basis that 14 plants had been growing there. They had been harvested by the time police attended. A man named Parisi (sic) has also pleaded guilty to cultivating that crop. He was acting on your instructions. You pleaded guilty in this court to growing those plants.
In October 2014, police officers found some five-and-a-half kilograms of dry cannabis material at premises at 83 Kings Road, Virginia. That is your house, Yavuz. That cannabis is not the subject of any charge against you. It is uncharged conduct and part of (sic) general background of your offending.
[1] The sentencing Judge erroneously referred to the offending occurring in 2015 rather than 2014 as charged.
Thus the conduct with which Mr Yavuz was not charged revealed that on three occasions he purchased a total quantity of 22 pounds of cannabis, 10 pounds of which was on-sold to the Western Australian market. The three offences to which he pleaded guilty related to his arranging for the supply of a further 39 pounds of cannabis to Western Australia in addition to being involved in the cultivation of 14 plants at an address at Waterloo Corner. The sentencing Judge also referred to “some five and a half kilograms of cannabis” [2] being found at Mr Yavuz’s house at Virginia. That was incorrect. The house at Virginia was the home address of Mr Bayraktar’s parents. In all the conduct engaged in by Mr Yavuz spanned a period commencing in May 2014 and concluding in September 2014. At $4,000 per kilogram, the total wholesale value of the cannabis the subject of the charged conduct was $156,000.
[2] The prosecution factual summary provided to the sentencing Judge suggests that the amount of cannabis found was 5.66 kg.
Mr Yavuz’s counsel informed the sentencing Judge that Mr Yavuz was introduced to the illicit cannabis trade by way of his befriending AK. Mr Yavuz met AK through a mutual friend. In time he understood AK to be involved in the cannabis trade. Despite their friendship Mr Yavuz did not immediately become involved in the cannabis trade with AK. However, AK learnt that Mr Yavuz was living on a property at Virginia on which there was facilities suitable for growing cannabis. Initially Mr Yavuz resisted AK’s overtures to vacate the property and allow AK to use it; however, in 2014 the offer was repeated and this time accepted by Mr Yavuz with the consent of his wife. Thereafter Mr Yavuz and his young family moved into premises owned by AK whilst AK used the property at Virginia to establish a cannabis crop.
The cultivation of the crop on Mr Yavuz’s property at Virginia came to an abrupt end when his father discovered what was occurring. However, it did not bring to an end Mr Yavuz’s involvement with the cannabis trade.
Subsequently, Mr Yavuz sold his meat wholesale business to Mr Soyler. Mr Soyler had an employee, Mr Kessler, who Mr Yavuz learnt had connections in the illicit cannabis trade in Western Australia where the price payable for cannabis was higher than in South Australia. Mr Yavuz’s third child was due. He was in debt. He knew from his friendship with AK the sort of money that could be made from the illicit cannabis trade. He decided to work with Mr Kessler to transport cannabis to Western Australia. His motivation was financial. As part of the plan Mr Kessler and another man, Mr Parise, grew a second cannabis crop on Mr Yavuz’s property with his knowledge.
The telephone intercept material reveals an intention on the part of Mr Yavuz and Mr Kessler to become regular suppliers, at least fortnightly, of significant quantities of cannabis to the Western Australian market. But for police intervention they would have continued to pursue that plan. The intercept material also shows that Mr Yavuz was aware of the risk of detection. Not only did he and the others to whom he spoke use a code, but after a purchaser in Western Australia was arrested, having not long before purchased two pounds of the second Western Australian consignment from Mr Kessler, the men were instructed to use different phones. At this point in time the second consignment had not yet been fully sold. Despite the arrest of the purchaser, about which Mr Soyler was aware, Mr Soyler and Mr Kessler continued to pursue the sale of the balance of the consignment with Mr Yavuz’s knowledge and consent.
There is no suggestion that Mr Soyler was involved in trafficking in cannabis beyond his transportation of the two consignments to Western Australia, his participation in the sale of those consignments, and his collection of the proceeds of the same. Those two consignments, totalling 32 pounds and with a wholesale value in the region of $128,000, were transported to Western Australia in August and September 2014. Mr Soyler was not party to arranging either consignment. The link between Mr Soyler and the wider enterprise was confined to his friendship with Mr Yavuz. The telephone intercept material reveals, however, a preparedness on Mr Soyler’s part to assist Mr Yavuz in his effort to establish himself in the Western Australian illicit cannabis market.
Before the sentencing Judge Mr Soyler submitted through his counsel that he did not know upon leaving Adelaide on the first trip to Western Australia that there was cannabis in the vehicle in which he and Mr Kessler were travelling. He said that he became aware of this later and decided to proceed. The prosecution challenged this. The sentencing Judge determined:
On one occasion you drove to Western Australia with a friend of your son’s, a man named Justin Kessler. You say that you found out during the drive to Western Australia that Kessler was transporting cannabis in the car. You deny that you had prior knowledge of that fact. The Crown disputes that submission. In my view, it does not matter. You have admitted that once you became aware there was cannabis in the vehicle you arranged for its sale in Western Australia. On a second trip you knew full well you were transporting cannabis. You did so and again you sold it there.
Mr Soyler took part in the transportation and sale of the second consignment for purely commercial reasons. His business was in financial difficulty and he looked to his share of the proceeds of the sale of the consignment to help him get through a difficult time. As mentioned above, Mr Soyler continued to involve himself in the second consignment to Western Australia notwithstanding the salient reminder of the risk of being caught manifest in the arrest of the customer who, a short time before, had purchased two pounds from him and Mr Kessler.
In Mr Bayraktar’s case, his charged conduct concerned the sale of 20 pounds of cannabis to Mr Yavuz for a total price of around $44,000; 10 pounds in the period March to May 2014 and 10 more in August 2014. The sentencing Judge sentenced Mr Bayraktar against the background of his having sold a further two pounds of cannabis to Mr Yavuz in the same period March to May 2014.
Before the sentencing Judge counsel for Mr Bayraktar explained that his client became involved in trafficking in cannabis as a consequence of his father’s longstanding use of the drug for relief from back pain and other medical issues. In consequence of his regular use of the drug, Mr Bayraktar’s father, Zeki Bayraktar, came to know cannabis traffickers. The Bayraktars also knew Mr Yavuz and learnt of his interest in sourcing cannabis. Knowing this they supplied him with excess cannabis that Zeki Bayraktar’s supplier had available. The Bayraktars did not know anyone else involved in the wider enterprise other than Mr Yavuz. They did not know of the intention to on-sell the cannabis in Western Australia. Zeki Bayraktar sourced the cannabis and his son became the conduit for its on-sale to Mr Yavuz. Both Bayraktars shared in the proceeds of the sales, those proceeds being in the region of $1,000 to $2,000 per 10 pound consignment. To the extent that Mr Bayraktar was prepared to continue in his role of conduit between his father and Mr Yavuz, it was conceded that he should be sentenced on the basis of an ongoing course of conduct. In this regard, in particular, it is to be noted that Mr Bayraktar admitted an intention to sell at some point, or be involved in the sale of, the 5.66 kg of cannabis located in his parents’ home.
Personal circumstances
Before considering the grounds of appeal we outline the personal circumstances of each of the appellants.
Mr Yavuz
Mr Yavuz is 30 years old. He was born in Adelaide and has lived in South Australia all his life. His parents migrated to Australia almost forty years ago. They have worked hard and been successful in providing for a family of seven children. Mr Yavuz is their eldest son. His parents and brothers and sisters are aware of his offending. They remain supportive of him.
Mr Yavuz left school before completing year 11. Since then he has always been in employment. Initially he worked on the family’s market garden at Virginia, then in his father’s butcher shop. For eight years he then operated a wholesale meat business. That business failed leaving him with a debt of $150,000. The reason for the business failing lies in Mr Yavuz’s co-workers lacking the skills to operate it effectively in his absence. As to his absence, that was the product of his grieving after the tragic death of his youngest brother who was only 11.
In time Mr Yavuz returned to the family’s market garden where he was unsuccessful in growing a capsicum crop. His debt grew. He then purchased, restored and sold a classic car at a profit which, along with a loan of $30,000, he used to build a cool-room and freezer on the family market garden. He then began afresh in the wholesale meat industry. In time, through hard work, he managed to pay off his debt. However, the business came to an end after his delivery vans and cool-room were sabotaged leaving him with a repair cost that he could not afford.
To his credit Mr Yavuz turned his hand to working in the building industry and quickly learnt the skills necessary to undertake gyprock work. In time he became confident enough to start his own business in this area. That business became successful.
Mr Yavuz married when he was 19. He and his wife have three young children. Mrs Yavuz is aware of the offences with which her husband has been charged. She remains supportive of him.
Mrs Yavuz has Crohn’s disease and is under the care of a gastroenterologist at the Lyell McEwin Hospital. She takes medication to control the disease, but it has nonetheless a significant affect on her day to day functioning. At those times when the disease is most active she suffers abdominal pain and tiredness. It also results in iron deficiency and weight loss. A report provided by Mrs Yavuz’s general practitioner dated 19 May 2017 stated that Mrs Yavuz weighed only 49 kg. Doubtless when the disease is active, caring for the children is hard and she is most reliant upon her husband. She has no other support beyond her husband and his family.
In the last 18 months Mr Yavuz purchased a two and a half acre property at Virginia. On that property sits a dilapidated house which, as at the time of his being sentenced, he was in the process of renovating. The mortgage is $350,000. Mr Yavuz hopes to dedicate the proceeds of selling a second classic car that he is restoring to reducing that mortgage. The sentencing Judge was informed that should Mr Yavuz be imprisoned his family would need to sell the property and move into rental accommodation.
The sentencing Judge was provided with a number of references from members of Mr Yavuz’s family, friends and business associates. They tell of a reliable, industrious and hard-working man; a good husband, son, brother and father, dedicated to his immediate and wider family.
The sentencing Judge received a psychological report prepared by Mr R Balfour, a forensic psychologist, in relation to Mr Yavuz. In it Mr Balfour opines:
Mr Yavuz possesses few of the traditional static (historical) and dynamic (acute) criminogenic risk factors that have been identified by researchers as predisposing an individual towards offending behaviour. He exhibited evidence of low-grade conduct disorder during his adolescence. He does not have any antiauthoritarian attitude. He has only socialised with negative peers during the last five years. He does not suffer from pathological boredom in the community. He has a limited juvenile and adult offending history consisting mainly of driving offences. He has never experimented with cannabis, or other types of illegal drugs. He has never consumed alcohol. His temper has twice brought him into legal conflict. He does not have a history of generalised impulse control problems in the community. He does not engage in reckless, thrill-seeking offending behaviours. I would rate his general criminogenic profile as being in the low range of risk (i.e., on a risk severity rating scale of low, moderate, and high) for coming into further legal conflict during the next twelve months.
In his report Mr Balfour records that Mr Yavuz is remorseful. He adds that Mr Yavuz found imprisonment on remand aversive, punitive and frightening. Mr Balfour believes that Mr Yavuz’s “fear of incarceration could be used as an effective personal deterrent against further offending behaviour”.
Mr Balfour also reveals that financial stressors in Mr Yavuz’s life and the influence of negative peers led him to commit the offences subject of this appeal.
Mr Yavuz has a number of convictions for driving related offences. One such conviction related to his driving whilst disqualified for which he was sentenced to a suspended sentence of 21 days imprisonment. He has three convictions for common assault. He has never been convicted of any offence related to the illicit drug trade. Until now he has never served a period of imprisonment.
Mr Soyler
Mr Soyler is 46. He was born in Turkey. At about the age of 20, having completed his secondary schooling, he migrated to Australia to marry his wife who was the daughter of Turkish migrants living in Melbourne.
A psychological report prepared by Dr Lim and provided to the sentencing Judge reveals that until his arrest Mr Soyler and his wife worked hard building a life together. Theirs is an arranged marriage that has endured. They have six children between the ages of 17 and 25. Three of the children continue to live at home with their parents.
Mr Soyler and his family moved to Adelaide in 2012. Previously they had lived in Melbourne for 18 years. In that time the Soylers worked hard in businesses of their own. Eventually they established a meat wholesale business in addition to owning and operating two kebab shops. Financial difficulties resulted in insolvency and the loss of much of the Soylers’ accumulated wealth to the payment of debt. The family moved to Adelaide to start afresh.
In Adelaide Mr Soyler took over Mr Yavuz’s meat wholesale business. Subsequently some of his remaining creditors learnt of his having done so and pursued him for payment of money owed. His new business soon began to suffer financial difficulties. Equipment and machinery were seized and sold to pay debt. Against this background Mr Yavuz and Mr Soyler decided to explore the possibility of opening a similar meat wholesale business in Western Australia.
Mr Yavuz and Mr Soyler travelled to Western Australia together for the purpose of finding suitable premises and beginning the process of securing customers. It was on his second trip, this time without Mr Yavuz and with Mr Kessler, that Mr Soyler committed the first of the offences to which he pleaded guilty.
Since his arrest Mr Soyler has been chronically depressed. He has lost his business and his home. He, his wife and three of their daughters currently live in rental accommodation. Interpersonal relationship problems with his family have arisen. In particular, he and his wife have experienced problems in their marriage which he attributes to his becoming socially isolated, his commencing to drink and gamble contrary to their faith, and his depression. He has feelings of hopelessness regarding his future. He informed Dr Lim that he drinks beer regularly because he becomes “pissed off about life and I stop caring about anything. That’s why I gamble too … when you lose confidence, you do bad things”.
In her report Dr Lim considers Mr Soyler to have taken up drinking and gambling as a means of managing his depression regarding the trajectory that his life has taken in recent times. Testing undertaken by Dr Lim revealed Mr Soyler to be experiencing a severe level of depression, a normal level of anxiety and moderate stress. Dr Lim considered Mr Soyler to be presenting with symptoms of an “Adjustment Disorder with Depression and Anxiety, Gambling Disorder (mild), and Alcohol Use Disorder (moderate severity)”, all developed since his arrest and largely reflective of maladaptive attempts to cope with his circumstances.
Mrs Soyler suffers from a degenerative back condition that results in her experiencing significant pain most days. Mr Soyler assumed the role of her carer and as a consequence was unemployed and in receipt of the carer’s pension.
With respect to his offending, Mr Soyler reported to Dr Lim:
… that he had always disapproved of drugs because it went against the teachings of his Islamic faith. Consequently, he had been upset when he learnt that an individual who was like a son to him was using his vehicle to transport cannabis. Mr Soyler subsequently made the misguided decision not to go to the police as he was trying to protect this individual from harm, in the same way that he would protect any other member of his family. Unfortunately, he failed to realise that he would only be facilitating the prevalence of cannabis in the community in doing so, especially after he contacted another friend (the co-accused) to help with the sale of the drugs.
Dr Lim did not consider it likely that Mr Soyler would re-offend in a similar manner, although she did consider him to be at moderate risk of general recidivism.
Mr Soyler has numerous convictions for driving and driving related offences. He has been convicted of reckless conduct and assault police. In each case sentences of imprisonment were suspended. He has never been imprisoned. He has never been convicted of any offence related to the illicit drug trade.
Mr Bayraktar
Mr Bayraktar was born in Australia in July 1987. He is currently 30 years of age, married with two children aged five and two. Mr Bayraktar and his family live in a transportable home situated on a 2 ½ acre block owned by his parents and upon which their home is also to be found.
Mr Bayraktar’s parents migrated to Australia from Turkey in the 1970s. They moved to Adelaide from Victoria in 1994. In this State Mr Bayraktar completed his primary and secondary schooling. His schooling and his working life was and is regularly interrupted on account of his suffering a recurrent illness, Familial Mediterranean Fever. The sentencing Judge received a report from Mr Bayraktar’s doctor who advised that Mediterranean Familial Fever is a chronic relapsing disease inherited genetically that causes “severe chronic recurrent intermittent peritonitis (inflammation of the peritoneum in the abdomen) resulting in acute and chronic abdominal pain which can be severely disabling and cause significant incapacity and loss of function”. An added consequence of the disease is that often sufferers are depressed. This is true in Mr Bayraktar’s case. He suffers anxiety and depression for which he has been prescribed medication and which have worsened since his arrest.
The consequence of having Mediterranean Familial Fever is that Mr Bayraktar regularly suffers bouts of the disease resulting in his becoming bedridden for days and unfit for work and study. Thus whilst he finished year 12, he did not matriculate, and whilst he was accepted by TAFE to undertake a course in small business management, he was unable to complete that course. It also resulted in his being unable to work for a day or two every two to six weeks in the family business.
Despite his inability to complete his studies and his recurrent illness, Mr Bayraktar has always been in employment since leaving school. Initially he worked for a tomato wholesaler in Virginia, then a number of vegetable wholesalers before starting Bayraktar Produce in 2008. Bayraktar Produce operates from a shed at the rear of Mr Bayraktar’s parents’ property. The business produces tomatoes, capsicums and cucumbers in greenhouses on the property. In addition to growing produce the business buys produce from other market-gardeners and sells the same. One aspect of the business involves the sale of peeled and bagged raw carrots which required investment in special machinery.
The nature of the business is such that Mr Bayraktar worked seven days a week, invariably starting early in the morning. The business is labour intensive. At those times when afflicted by a bout of Mediterranean Familial Fever his wife and parents temporarily stepped in to keep the business operating. His parents are, however, in their senior years and cannot operate the business for a lengthy period.
It is through the business that the Bayraktars renewed their acquaintance with Mr Yavuz. Whilst Zeki Bayraktar knew Mr Yavuz previously through their common membership of the Turkish community in South Australia, it was as a consequence of Mr Yavuz purchasing shredded lettuce for on-sale to a business selling yiros that they came into contact once more.
The sentencing Judge received references provided by Mr Bayraktar’s mother, wife and a former employer. The former employer speaks of Mr Bayraktar as an “outstanding person to deal with professionally and an all-round great friend”. Mr Bayraktar’s mother tells of being angry at her husband for getting their only son involved with cannabis traffickers. She also tells of the pivotal role that her son plays in the conduct of his parents’ affairs, how she and her husband look after their grandchildren whilst Mr Bayraktar and his wife work in the business, and how, if Mr Bayraktar is imprisoned, life without him will be particularly difficult for her and her husband. Imprisonment, she says, will mean the end of the business and will ruin Mr Bayraktar financially.
Mr Bayraktar’s wife tells of how she met her husband in 2010 whilst he was on holiday in Turkey. They were married the following year in Istanbul before Mrs Bayraktar emigrated to Australia. She says that he is a good and loving father. She confirms that she leaves her two children with her husband’s parents whilst she and her husband work in the business. She says that if her husband is imprisoned she would not be able to run the business on her own particularly because her command of the English language is so poor. In fact, she is largely reliant upon him to function in the community generally due to her not being able to communicate effectively. She says that Mr Bayraktar’s imprisonment will mean significant hardship for his family. In this regard it is added that it appears that one of the children also has Mediterranean Familial Fever.
Mr Bayraktar has not previously come into contact with the criminal justice system.
The sentences imposed
The sentencing Judge accepted that in the case of each appellant specific deterrence was of less importance, but considered that general deterrence remained “extremely important in offences of interstate trafficking in large quantities of a controlled drug”. He considered that in the case of each appellant a longer period on parole was appropriate.
In sentencing Mr Yavuz the Judge reminded himself that Mr Yavuz was entitled to a discount in sentence of up to 30 per cent for his pleas to the two trafficking offences and up to 10 per cent for the offence of cultivation, in addition to credit for 23 days already spent in custody and some discount for 15 months and 26 days spent on home detention bail. The Judge said:
Had I fixed separate sentences, having allowed for the relevant discount, I would have sentenced you for each of the offences of trafficking to imprisonment for 33 months and 18 days and for the offence of cultivation to imprisonment for 16 months and two days. I would have ordered that those sentences be served cumulatively.
I give you credit of 23 days for time in custody and I give you credit in the order of six months for time spent on home detention bail. Accordingly, the sentence of the court is that you be imprisoned for six years and six months. I fix a non-parole period of three years and six months.
It appears that the Judge arrived at the conclusion that the appropriate starting point for each of the trafficking offences was four years imprisonment and for the cultivation offence 18 months imprisonment, or a total period of imprisonment of nine and a half years. The Judge then reduced the notional sentences to account for Mr Yavuz’s pleas of guilty, time spent in custody, and time spent on home detention bail.
In relation to Mr Soyler the Judge said:
Soyler, you, too, are entitled to a discount of 10% for each of the offences to which you have pleaded guilty. You are also entitled to a credit of three days for time spent in custody and I shall give you some credit for the 11 months and 26 days you spent on home detention bail. Had I fixed separate sentences, I would have ordered that they be served cumulatively. In your case, the sentence of the court is that you be imprisoned for six years and nine months. In your case, even though you do have a prior record, I see no reason to distinguish between you and Bayraktar with respect to the non-parole period and, again, I fix a non-parole period of three years.
Again the sentencing Judge appears to have considered a sentence of four years imprisonment in relation to each charge appropriate before discounting the same to take into account Mr Soyler’s pleas of guilty, time spent in custody, and time spent on home detention bail.
As to Mr Bayraktar, the Judge said:
Bayraktar, you are entitled to a discount of 10% for the sentences that I would have fixed for each of the offences of trafficking in a large commercial quantity of a controlled drug. Had I fixed separate sentences, after allowing for the discount, I would have sentenced you for each offence to imprisonment for 43 months and six days and ordered that they be served cumulatively. You did not spend any time in custody and have not been on home detention bail. Accordingly, the sentence of the court is that you be imprisoned for seven years, two months and 12 days.
You are a man with no prior convictions and with good prospects. I fix a non-parole period of three years.
Here again, the sentencing Judge appears to have arrived at the conclusion that the appropriate sentence for the trafficking offences was four years imprisonment before reducing that sentence to account for Mr Bayraktar’s pleas of guilty.
The sentencing Judge declined to suspend the sentences of imprisonment imposed on each appellant under s 38 of the Sentencing Act and further declined to suspend the sentences and order that they be served on home detention under s 33BB of that same Act.
Sentencing and Cannabis
The Controlled Substances Act creates a quantity-based penalty regime for trafficking in cannabis and for the cultivation of cannabis for sale. As much is evident in the maximum penalties applicable to each of the three tiers of trafficking and cultivation for sale offences.
The offences and related quantity-based penalty regimes are based on the recommendations of the Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General (MCCOC).[3] On this topic, in R v Young, Kourakis CJ, with whom Vanstone and Stanley JJ agreed, said:[4]
[3] Parliament of South Australia, House of Assembly, Hansard, 21 September 2005 at 3504.
[4] (2016) 126 SASR 41 at [46]-[47], [49].
The MCCOC identified, relevantly, three principles on which the model offences were founded:
Principle 3: The central objective of trafficking legislation is to strike at conduct undertaken for profit
Principle 4: Since commercial trafficking is undertaken for profit, offences and penalties should be geared to the anticipated profit from the illicit transaction
Principle 5: Trafficking legislation, which is directed against commercial exploitation of the black market, should not discriminate between different drugs in the formulation of prohibitions and penalties. The grade of the offence should be determined by the magnitude of the anticipated return from the illicit transaction.
With respect to principle 4, the MCCOC report stipulated that the “central measure of comparative liability is the quantity of the controlled drug involved in the offence”.It added:
The Code distinguishes three grades of trafficking offences. They correspond, with rough equivalence, to the hierarchical structure of the illicit drug supply system. Grade I trafficking (section 6.2.2 Trafficking in large commercial quantity of a controlled drug) will be used for major dealers and their immediate associates and accomplices, who are close to the source of supply. Grade II trafficking (section 6.2.3 Trafficking in commercial quantity of controlled drug) catches ‘ounce dealers’ and others who occupy the middle ranks of the hierarchy, while user-dealers, who deal in relatively small quantities to support their own habitual use, fall within the Grade III category (section 6.2.4 Trafficking in controlled drug).
(Citations omitted.)
…
An important aspect of the MCCOC report is its quantitative approach to sentencing. The object of the approach is to link the seriousness of the offence to its potential financial rewards.The MCCOC report proposed “indicative” quantities. It made recommendations as to the policy that should be applied uniformly by all Australian governments in setting quantity levels for their respective jurisdictions. That policy approach was as follows:
The Committee has identified the following three factors as central to the grade of criminality of the offence:
• the profit expected from illegal activity,
• the damage to the community, including:
—financial impact through the functioning of a black market and the diversion of funds from legitimate to illegal business enterprises,
—flow on crime such as property crime to finance use, and crimes of violence resulting from market competition and disputes;
• the damage done to the individual user,
it is possible to take these factors into account in setting the quantities which will draw heavier penalties for trafficking in commercial and large commercial quantities. Anticipated profits from trafficking can be calculated from the street price of the drugs. Calculating the number of doses of a drug contained in a ‘deal’ gives some approximation of the number of people at street level likely to use the drug contained in that lot. Consideration of the volume of trade at street level, coupled with profit derived from sales to consumers, allows comparisons to be made of the harm done to the community by sales of particular quantities of different drugs.
[footnotes omitted.]
The MCCOC approach also finds expression in s 44(1) of the Controlled Substances Act, which deals specifically with the determination of penalty for offences committed contrary to that Act, and in particular in s 44(1)(b) and (d). Section 44(1) provides:
44—Matters to be considered when court fixes penalty
(1)In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a) subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b) the quantity of the substance or goods involved in the commission of the offence; and
(c) the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d) in the case of an offence against Part 5 Division 2 or 3—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
(da) in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and
(e) any other relevant factor.
Section 44(2) provides:
(2)In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
With the exception of offences involving cannabis, cannabis resin and cannabis oil, the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration because the measure of seriousness is the quantity of the drug and not the harmfulness.[5] Put slightly differently, a comparison of the harmfulness of the drug trafficked by an offender with other illicit drugs trafficked is not to be undertaken as that task has been performed by the executive in determining the quantities of the various prescribed drugs that fall within the offence categories.
[5] R v Young (2016) 126 SASR 41 at [210]-[213] (Blue J) and the authorities referred to therein.
In R v Young Blue J made the following observations regarding sentencing an offender who has committed trafficking offences:[6]
The features relevant to assessing the seriousness of a defendant’s trafficking offending and the extent of proportionate punishment include the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature’s prescription of relevant factors in s 44 of the Act.
These features tend to overlap or be complementary. For example, a person who is higher in the drug trafficking hierarchy might be expected to be trafficking in drugs of a higher purity than someone lower in the hierarchy; at the level of the retailer, defendants are usually sole traders, whereas at the level of a distributor defendants are often couriers, handlers, assistants etc; and the higher a person’s level in the drug trafficking hierarchy, the greater will be the quantities and rewards that may be expected.
The quantity of drugs the subject of the trafficking offence involved does not only dictate whether the offence is trafficking, trafficking in a commercial quantity or trafficking in a large commercial quantity and hence whether the maximum penalty by way of imprisonment is imprisonment for ten years, 25 years or life imprisonment. The relative quantity within each of those three brackets is also important for two reasons. First, s 44(1)(b) explicitly requires a sentencing court to have regard to the quantity involved in the commission of the offence. Second, it would be irrational to treat quantity as critical to the identification of the seriousness of the offence as between the three levels but then to ignore it when assessing the seriousness of the offence within one of those levels. It would lead to anomalies if the appropriate penalty for just over a commercial quantity was of a different order to the appropriate penalty for just under a commercial quantity.
…
Section 44(1)(c) and (d) require a sentencing court to have regard to the circumstances relating to the defendant’s use (if at all) of the drug or drugs in question, the commercial or other motives of the defendant and the financial gain likely to have accrued. It is therefore relevant to consider the extent to which the purpose and effect of the trafficking offence was financial or other gain and the extent to which it was to pay for the defendant’s use of drugs to which he or she was addicted. It is relevant to consider the defendant’s position in the drug trafficking hierarchy and the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc).
All other things being equal, a defendant who does not use drugs and undertakes trafficking purely for profit is likely to attract a higher sentence than a defendant who is addicted to drugs and undertakes trafficking purely to pay for his or her own use. There are various intermediate situations. …
[6] R v Young (2016) 126 SASR 41 at [217]-[218], [221]-[222].
We agree.
In R v Lyberopoulos Hinton J explained why an exception is made in s 44(2) of the Controlled Substances Act for cannabis, cannabis oil and cannabis resin.[7] The reason is to be found in the MCCOC report. That report observed that the illicit traffic in cannabis is associated with the same evils of corruption, violence and the financial derelictions of the black market economy as the illicit traffic in heroin or amphetamine. However the report cautioned:[8]
[7] [2017] SASC 139.
[8] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, MCCOC Report Chapter 6, Serious Drug Offences (October 1998) at 283-285.
Commercial and Large Commercial Quantities of Cannabis
Determination of the distinctions between minor and more serious grades of trafficking in cannabis is both difficult and contentious:
● Cannabis is by far the most commonly trafficked drug in Australia. Whilst major cannabis dealers are comparable with major heroin dealers in terms of the evils associated with their criminal activity, trafficking in small quantities of the drug is widespread among a large population of generally law abiding people. There are significant social costs in stigmatising these individuals as drug traffickers. The need to minimise the harms resulting from enforcement of prohibitions against trafficking is particularly compelling when minor criminality involving cannabis is in question.
● Though realistic distinctions between major and minor dealers are essential, quantitative measures of guilt provide a very rough guide indeed to the level of criminality of cannabis dealers. A substantial proportion of Australian cannabis consumption is supported by locally grown material, cultivated in some cases for personal use and in others for commercial sale. Substantial quantities are also imported. There is an enormous range in the quantity, quality and cost of street deals – everything from basic leaf at about $50 an ounce to good head at $650 an ounce – and it is sold in varying amounts: from cones, at about a third of a gram, to multiple ounces.
Trafficking in cannabis extends from the activities of individuals who cultivate commercially to those who peddle small quantities of dried plant material, or cannabis extracts and preparations at the end of the distribution chain. When liability is imposed for cultivation, grades of criminality can be determined by the number of plants involved in the activity. Once the drug has entered commerce, however, measures of weight are necessary to determine grades of criminality and to provide a basis for the presumption of intention to traffic in the drug from possession of a trafficable quantity.
Since extracts of cannabis commonly contain a higher proportion of THC and fetch higher prices on the illicit market, separate tables of quantities are required for more concentrated forms of the drug. In jurisdictions which distinguish among grades of commercial trading, most designate two or more different quantitative measures for cannabis plant material or ‘leaf’, ‘resin’ and ‘oil’. Almost all specify trafficable and commercial quantities for THC as well. The nature of the distinction between THC and other cannabis extracts is uncertain, since there are no specifications of THC levels for extracts.
...
The Committee has adopted a middle course between these extremes. Cannabis is divided into two categories for the purposes of setting commercial, large commercial and trafficable quantities. The object of the Committee’s recommendations is (sic) displace existing distinctions between cannabis in leaf form and cannabis resin or oil by specifying two grades of cannabis, distinguished by their THC content. The two grades are intended to reflect fair average estimates of the THC content of illicit commercial cannabis in vegetable form and illicit commercial cannabis in resin form.
In R v Lyberopoulos Hinton J noted:[9]
In South Australia the MCCOC resolution to the difficulties associated with imposing quantitative measures of culpability for cannabis trafficking was not adopted. Not only did Parliament not divide cannabis into two categories, but cannabis, cannabis resin and cannabis oil as defined in the Controlled Substances Act 1984 are so broad as to include a drug range that is all the more highly variable in quantity, quality (narcotic concentration), and commercial value. Section 44(2) overcomes the difficulty by allowing for the amelioration of the application of the quantity based penalty regime for the tiered trafficking offences created in relation to cannabis, cannabis oil and cannabis resin. The result is that in each case a sentencing court confronted by a trafficker in cannabis, cannabis resin or cannabis oil must consider the quality of the cannabis, cannabis oil or cannabis resin, the quantity in which it is traded, and commercial value. Having done so the court will then be in a position to determine the comparative harm that the cannabis, cannabis oil and cannabis resin could potentially cause by comparison to other drugs and by comparison to other sentences involving drugs falling within the definitions of cannabis, cannabis oil and cannabis resin.
In R v Faehrmann; R v Moore; R v Price-Austin this Court said:
Section 44(2) of the Controlled Substances Act 1984 (SA) requires a court to determine penalty on the basis that controlled drugs, other than cannabis, are all categorised equally as very harmful. While this subsection renders sentences for different types of drugs such as heroin and methamphetamine comparable if all other things are equal, it does not affect the established proposition that, all other things being equal, a sentence for trafficking in cannabis is likely to be less than a sentence for trafficking in other drugs. Accordingly, sentences imposed for trafficking in drugs other than cannabis are of limited assistance in considering whether the sentences in the present case are manifestly excessive (although appropriate relativities between sentences for trafficking in cannabis and sentences for trafficking in drugs such as heroin and methamphetamine need to be maintained).
[footnotes omitted.]
[9] [2017] SASCFC 139 at [29]-[30].
In R v Lyberopoulos Hinton J considered that as a general proposition the Court’s statement in R v Faehrmann; R v Moore; R v Price-Austin[10] may be accepted. The MCCOC observations referred to in the passage quoted above provide further justification. However, it does not follow that a sentence imposed for trafficking in cannabis, cannabis oil or cannabis resin will invariably be lower than for trafficking in other drugs. Much will depend on the particular variant of cannabis, cannabis oil or cannabis resin the subject of the charge, the quantity, quality and commercial value and, indeed, the nature of the enterprise in which the offender is involved and his or her knowledge of the operations of that enterprise. In R v Lyberopoulos Hinton J added:[11]
It follows that weight in relation to cannabis, cannabis oil and cannabis resin is not as strong an indicator of the gravity of the offending generally and the harm the drug poses to the community more particularly.
The benefit that an offender stands to gain from his or her involvement in a drug trafficking enterprise is ordinarily relevant to the assessment of the offender’s culpability and the weight to be afforded to the deterrent, rehabilitative and retributive purposes of any sentence imposed. The commercial value of the quantity of the drug trafficked determined by the number of street level deals into which it may be divided, and the market price of such deals, is also relevant. That value reflects the profit incentive motivating the enterprise and the illicit trade more generally whilst the number of street level deals reflects the danger to the community posed by the enterprise in which the offender participates. The preparedness of the individual to involve him or herself in an enterprise of a particular scale is also relevant to the assessment of the individual’s culpability and the deterrent and retributive purposes of any sentence imposed. Thus, an offender’s culpability is not measured simply by what he or she stood to gain, or simply by a consideration of the role he or she played in the enterprise. These things are most important, but so too is the offender’s knowledge of the nature of the enterprise in which they willingly involve themselves and the threat that the enterprise in which they participate poses to the community.
It should be borne in mind that drug trafficking enterprises cannot succeed without the involvement of a number of people undertaking particular roles. Where a court sentences a subordinate role player in an enterprise, whatever the immediate benefit that that person sought to obtain, the deterrent purposes of the sentence must aim to deter other would-be subordinates from involving themselves in such enterprises.
[10] (2014) 118 SASR 549 at [40].
[11] [2017] SASCFC 139 at [32]-[34].
In relation to Mr Yavuz, the orders of the Court are:
1.Permission to appeal on grounds 2, 3 and 4 of the amended Notice of Appeal is refused.
2.The appeal is dismissed.
In relation to Mr Soyler, the orders of the Court are:
1.The appeal is allowed.
2.The sentence imposed on 31 July 2017 is set aside.
3.Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the appellant is sentenced to imprisonment for five years and 11 months. A non-parole period of two years and 11 months is fixed. That sentence is to commence from 31 July 2017.
In relation to Mr Bayraktar, the orders of the Court are:
1.The appeal is allowed.
2.The sentence imposed on 31 July 2017 is set aside.
3.Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the appellant is sentenced to imprisonment for five years and five months. A non-parole period of two years and eight months is fixed. That sentence is to commence from 31 July 2017.
25
4
1