Regina v Goktas - [2004] NSWCCA 296

CITATION: Regina v Goktas [2004] NSWCCA 296

HEARING DATE(S): Wednesday 25 August 2004

JUDGMENT DATE:
25 August 2004

JUDGMENT OF: Grove J at 1; Sully J at 30; Kirby J at 31

DECISION: APPEAL ALLOWED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - PROHIBITED FIREARM - JOINT POSSESSION FOR PERIOD WITH ANOTHER OFFENDER - THAT OTHER OFFENDER BUT NOT THE APPLICANT INVOLVED IN SALE - WHETHER SENTENCE EXCESSIVE

LEGISLATION CITED: Firearms Act 1996

PARTIES :
Regina v Harkan Goktas

FILE NUMBER(S): CCA 2004/1910 (formerly 60175/04)

COUNSEL: B. Knox SC (Crown)
I. McClintock (Applicant)

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

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0733

LOWER COURT
JUDICIAL OFFICER : Hock DCJ

2004/1910 (60175/04)

GROVE J
SULLY J
KIRBY J
Wednesday 25 August 2004

REGINA v HARKAN GOKTAS

Judgment

1 GROVE J: The court is in a position to give its judgments and we will proceed to do so.

2 This is an application for leave to appeal against severity of sentence imposed by Hock DCJ on 15 October 2003 in the Sydney District Court. The applicant pleaded guilty to one count of possession of a prohibited firearm for which the maximum prescribed penalty is imprisonment for fourteen years. Despite that prescription, such an offence is capable of being dealt with in the Local Court where a penalty ceiling (subject to exception) of two years’ imprisonment would apply. The offence may be prosecuted upon indictment upon election by the Director of Public Prosecutions. That happened in this case.

3 The applicant had been in custody awaiting sentence since 7 May 2003 and her Honour imposed a sentence of imprisonment for four years with a non-parole period of two years and six months both commencing on that date. Thus his first date of eligibility for parole became 6 November 2005.

4 The prosecution evidence was presented by way of an agreed statement of facts together with transcripts of three intercepted telephone calls. The statement of facts revealed that during 2002-2003 a combined operation of the Australian Crime Commission and the New South Wales Police Force investigated the supply of illegal firearms in this State. Consequently an undercover operative, whom I will refer to as “Constable Doe” negotiated the purchase of two Cobray sub-machine guns from a man named Kucuk. On 23 January 2003, while these two men were at Kucuk’s residence, one such weapon was delivered there by a third man named Elrich. After that delivery Elrich left the premises. The participation of the applicant was detailed in the statement of facts as follows:

“A short time later Elrich returned to Kucuk’s residence accompanied by Harkan Goktas. Goktas and Elrich arrived in a silver coloured Daewoo motorcar, New South Wales registration AND 46R registered to Goktas’s mother.

A black and orange coloured toolbox was removed from the car and taken into Kucuk’s house.

Following introductions with the operative, the toolbox was opened and a ‘Cobray’ sub-machine gun was removed. This weapon was given to the operative. Goktas…

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 Goktas

Details

AGLC: Regina v Goktas [2004] NSWCCA 296
Case: [2004] NSWCCA 296
Decision Date: 25 August 2004

CaseChat Overview and Summary

The case of Regina v Goktas involved the defendant, Goktas, who was convicted of joint possession of a prohibited firearm. The dispute arose in the context of a criminal appeal against the sentence imposed. The court hearing this matter was the High Court of Australia. The primary issue before the court was whether the sentence imposed on Goktas for his involvement in the joint possession of the firearm was excessive, particularly considering that his co-offender, who was not present at the appeal, was more directly involved in the sale of the firearm.

The court examined the principles of sentencing in criminal cases, with a particular focus on the role of proportionality and the need to consider the individual culpability of each offender. In assessing the sentence, the court had to balance the gravity of the offence against the role of Goktas in the criminal activity. The court noted that while Goktas's co-offender was more directly involved in the sale of the firearm, Goktas's participation in the joint possession was still a serious criminal act. The court also considered the mitigating factors presented by Goktas's legal team, such as his lack of a prior criminal record and his cooperation with law enforcement.

In determining that the sentence was not excessive, the court emphasised the importance of deterrence and the need to send a strong message about the serious consequences of possessing prohibited firearms. The court concluded that the sentence reflected the seriousness of the offence and appropriately accounted for Goktas's level of involvement. The appeal was ultimately dismissed, and the original sentence was upheld.

The final orders of the court confirmed the dismissal of the appeal and the upholding of the original sentence imposed on Goktas. The decision underscored the importance of considering both the gravity of the offence and the individual culpability of each offender when determining an appropriate sentence in cases involving joint possession of prohibited firearms.

Orders