Regina v Aslan - [2005] NSWCCA 121

CITATION:
Regina v Aslan [2005] NSWCCA 121

HEARING DATE(S): 4 April 2005

JUDGMENT DATE:

4 April 2005

JUDGMENT OF:
Hunt AJA at 26; Grove J at 1; Hall J at 27

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - ONGOING SUPPLY OF DRUGS - ONGOING SUPPLY OF PISTOLS - FURTHER OFFENCE OF SUPPLY OF LARGE COMMERCIAL QUANTITY OF PROHIBITED DRUG - TOTAL CRIMINALITY REQUIRED SUBSTANTIAL SENTENCE - NO ERROR BY TRIAL JUDGE IN ASSESSMENTS INCLUDING APPELLANT'S SUBJECTIVE CASE

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Way 2004 60 NSWLR 168

PARTIES:
Regina v Tarek Aslan

FILE NUMBER(S):
CCA 2005/62

COUNSEL:
D. Arnott (Crown)
M. Ramage QC (Applicant)

SOLICITORS:
S.Kavanagh (DPP)
Macquarie Lawyers (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3106

LOWER COURT JUDICIAL OFFICER:
Sides DCJ

2005/62

HUNT AJA
GROVE J
HALL J
Monday 4 April 2005

REGINA v TAREK ASLAN

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed upon the applicant by Sides DCJ at the Campbelltown District Court. The applicant pleaded guilty to three counts in an indictment but it was noted that he had earlier made appropriate pleas of guilty before a magistrate and it was for procedural reasons only that an indictment was presented. His Honour applied a “discount” of 25 percent for early pleas.

2 The offence in count 1 charged supply a prohibited drug on an ongoing basis for which the prescribed maximum penalty is 20 years' imprisonment. Count 2 charged selling firearms on an ongoing basis contrary to section 51B of the Firearms Act which also carries a maximum prescribed penalty of 20 years' imprisonment. Count 3 charged supplying a large commercial quantity of a prohibited drug for which the prescribed maximum penalty is imprisonment for life. Also taken into account pursuant to the Form 1 procedure were six further offences.

3 The applicant was sentenced on count 1 to imprisonment for six years and six months with a non-parole period of three years and six months. On count 2, to imprisonment for eight years with a non-parole period of three years and six months, and on count 3, to imprisonment for seven years and six months with a non-parole period of four years and six months. The Form 1 matters were taken into account in the sentence imposed in relation to count 1. The dates specified for commencement and conclusion of the various sentences and non-parole periods had effect that the applicant would be in custody from 28 May 2002 and become eligible for parole from 27 May 2009, thus, there was an effective sentence of 11 years and six months with a non-parole period of seven years.

4 The offences all occurred as a result of activity by undercover police officers authorised pursuant to the appropriate statute. The commencement of the applicant's criminality can be dated from 6 March 2002 when an undercover officer referred to…

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 Regina v Aslan

Details

AGLC: Regina v Aslan [2005] NSWCCA 121
Case: [2005] NSWCCA 121
Decision Date: 4 April 2005

CaseChat Overview and Summary

The case of Regina v Aslan involved the defendant, Aslan, who was found guilty of supplying drugs and pistols over an extended period, as well as the supply of a large commercial quantity of a prohibited drug. Aslan appealed against the sentence imposed by the trial judge, contending that the court erred in its assessment of the total criminality of his actions and in the resultant sentence. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the trial judge correctly assessed the totality of Aslan's criminal conduct, and if the sentence imposed was commensurate with the severity of his crimes. The court had to consider the various elements of Aslan's criminal activities, including the ongoing supply of drugs and pistols, and the additional offence of supplying a large commercial quantity of a prohibited drug. The defence argued that the trial judge's assessment of the appellant's subjective case was flawed, and that this affected the overall sentence.

The court determined that the trial judge's assessment of Aslan's criminal conduct was accurate, and that there was no error in the judge's approach to the sentencing. The court found that the total criminality of Aslan's actions warranted a substantial sentence, and that the sentence imposed reflected the severity of his crimes. The court rejected the appeal, affirming that the trial judge had appropriately considered all relevant factors in reaching the sentence. The decision underscored the importance of a comprehensive assessment of an offender's total criminality in determining an appropriate sentence.

The final orders of the court were to dismiss Aslan's appeal against his sentence, upholding the trial judge's assessment and the sentence imposed. The court's decision highlighted the need for a careful consideration of the totality of an offender's criminal conduct when determining an appropriate penalty.

Orders