Regina v Gerry Osman Mehmet - [2002] NSWSC 1154

CITATION: REGINA v Gerry Osman MEHMET [2002] NSWSC 1154

FILE NUMBER(S): SC 70025/02

HEARING DATE(S): 21/10/02, 22/10/02, 23/10/02, 24/10/02, 25/10/02, 28/10/02, 29/10/02, 30/10/02, 31/10/02

JUDGMENT DATE: 12 December 2002

PARTIES :

Regina
Gerry Osman MEHMET

JUDGMENT OF: Bell J at 1

COUNSEL : Tim Hoyle SC (Crown)
Richard Button (Accused)

SOLICITORS: SE O'Connor
DJ Humphreys

CATCHWORDS: Sentence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Power v The Queen (1974) 131 CLR 623
R v Cheung (unreported) NSWCCA, 11 December 1995
R v Dundas (unreported) NSWSC, 15 April 1992
R v Elphick (unreported) NSWCCA, 2 July 2002
R v Kapar (unreported) NSWSC, 27 October 1995
R v Nixon (unreported) NSWCCA 31 October 1995
R v Previtera (1997) 94 A Crim R 76

DECISION: Sentenced to a term of eighteen years imprisonment to date from 17 April 2001; That sentence will expire on 16 April 2019; Non-parole period of thirteen and a half years specified; The first date eligible for release to parole is 16 October 2014

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

12 December 2002

70025/02 REGINA v Gerry Osman MEHMET
JUDGMENT

1 BELL J: On 21 October 2002 the offender was arraigned on an indictment charging him with the murder of his wife, Vanora Jean Mehmet, at Horningsea Park on 17 April 2001. He pleaded that he was not guilty of murder but guilty of manslaughter. The Crown did not accept that plea in discharge of the indictment and he stood trial. On 31 October 2002 the jury returned a verdict convicting him of murder.

2 The sole issue upon which the trial was fought was provocation.

3 The offender met his wife in 1993. She was then aged sixteen and he was twenty-nine. The deceased and her family lived in Canberra. The offender asked the deceased’s mother if he could visit the family and see Vanora. Mrs Kasurinen agreed to this arrangement. Thereafter the offender started taking Vanora out. They quickly formed an attachment and, against the wishes of her mother and stepfather, Vanora left school and moved to Sydney to live with the offender.

4 The couple married in 1995. Mrs Kasurinen came to accept her daughter’s decision and to welcome the offender into the family. The offender and his wife enjoyed a happy married life. They had difficulties conceiving a child and in 1999 they enrolled in the IVF Program. This was a stressful period for both of them. After a time the deceased became pregnant and in January 2000 their daughter, Tianna, was born.

5 The offender was employed with P & O as the transport manager. He worked long hours in an effort to provide material comforts for his family. He entered into finance agreements in order to purchase expensive cars for himself and his wife. After Tianna’s birth he suggested to the deceased that she find a dream home for them to live in. Around August 2000 they acquired a handsome, new home at 21…

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.

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Details

Case: [2002] NSWSC 1154
Decision Date: 12 December 2002

CaseChat Overview and Summary

In the case of Regina v Gerry Osman Mehmet, the appellant, Osman Mehmet, was convicted of various drug-related offences and sentenced to imprisonment. The appeal was against the severity of the sentence imposed by the County Court. The Court of Appeal was tasked with determining whether the original sentence was manifestly excessive and whether the trial judge had failed to properly consider the principles of sentencing as outlined in the Sentencing Act 1991 (Vic). The central legal issues before the court involved the appropriate weight to be given to the appellant's criminal history and mitigating factors, as well as the adequacy of the reasons provided by the trial judge for the sentence imposed.

The Court of Appeal considered the appellant's criminal history, which included multiple prior convictions for drug-related offences. The trial judge had emphasised the need for general deterrence and the gravity of the crimes committed. However, the Court found that the trial judge had not sufficiently weighed the mitigating factors presented, such as the appellant's early guilty plea and his efforts to address his drug addiction. The Court of Appeal held that the original sentence was manifestly excessive and that the trial judge's reasoning did not adequately reflect the statutory sentencing principles. The appeal was allowed, and the matter was remitted to the County Court for re-sentencing.

The Court of Appeal directed that the County Court should re-sentence the appellant, taking into account all relevant mitigating and aggravating factors. The Court emphasised that the re-sentencing should be conducted with due regard to the principles of proportionality and the need to ensure that the sentence imposed is commensurate with the seriousness of the offending and the culpability of the offender. The Court also noted that the County Court should provide detailed reasons for the new sentence imposed, ensuring that it is sufficiently justified in the context of the statutory framework.

Orders