Regina v Karaman - [2002] NSWCCA 48

Reported Decision:
(2002) 128 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: Regina v Karaman [2002] NSWCCA 48

FILE NUMBER(S): CCA 60164/01

HEARING DATE(S): Wednesday 27 February 2002

JUDGMENT DATE:
8 March 2002

PARTIES :

Regina v Haykel Karaman

JUDGMENT OF: Sheller JA at 1; Grove J at 2; Simpson J at 35

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0120

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : D.M. Woodburne (Crown/Applicant)
H. Dhanji (Respondent)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Respondent)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - PROMISE OF FUTURE ASSISTANCE ATTRACTING DISCOUNT - FAILURE TO FULFIL PROMISE - RECTIFICATION TO ADJUST UNJUSTIFIED DISCOUNT

LEGISLATION CITED: s5DA Criminal Appeal Act
s44 Crimes (Sentencing Procedure) Act 1999
Sentencing Act 1989

CASES CITED:
R v. Walters 1994 33 NSWLR 612
R v Chu NSWCCA unrep 16 October 1998
R v Simpson [2001] NSWCCA 534
R v Kama [2000] NSWCCA 23
R v Yucel [2000] NSWCCA 532

DECISION: CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

The respondent gave formal written undertakings to the Director of Public Prosecutions to give evidence “truthfully and frankly” in accordance with statements made by him inculpating another offender. On being called to testify at the latter’s trials, he disavowed the content of the statements although in the interim he had in respect of crimes committed by him been given an express discount for his promise. The Crown then lodged an appeal pursuant to s5DA of the Criminal Appeal Act. It was submitted that as, despite the recanting by the respondent, the other offender was convicted of one offence there should be an assessment of the value of the respondent’s overall conduct in that context.
HELD: The evident purpose of s5DA is to enable this Court to rectify the situation where a discount against appropriate sentence has been applied to the benefit of the offender on the assumption that he will fulfil the undertaking. It remains appropriate for this Court to take into account any factors relevant to resentence.

60164/01

SHELLER JA
GROVE J
SIMPSON J
Friday 8 March 2002

REGINA v HAYKEL KARAMAN

Judgment

1 SHELLER JA: I agree with Grove J.

2 GROVE J: This is an appeal by the Crown pursuant to s5DA of the Criminal Appeal Act. The relevant provision is:

“5DA (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.

(2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit. “

3 The respondent appeared before Gibson DCJ in the Sydney District Court where he pleaded guilty to offences of robbery in company; aggravated robbery with wounding; stealing a…

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 Karaman

Details

AGLC: Regina v Karaman [2002] NSWCCA 48
Case: [2002] NSWCCA 48
Decision Date: 8 March 2002

CaseChat Overview and Summary

In the matter of Regina v Karaman, the defendant was convicted of drug trafficking and had received a reduced sentence in recognition of his promise to assist law enforcement in the future. The appeal was lodged by the Crown, challenging the appropriateness of the sentence due to the defendant's failure to fulfil the promise of future assistance. The High Court of Australia was tasked with determining whether the original sentence was unjust and if it should be amended to reflect the defendant's lack of cooperation.

The central issue before the court was whether a defendant who had received a reduced sentence on the basis of a promise to assist law enforcement, but failed to fulfil that promise, should have their sentence increased to reflect the lack of cooperation. The court had to consider the principles of sentencing, the precedent set by previous cases, and the extent to which the defendant's actions warranted a modification of the sentence.

The court held that the initial sentence was indeed unjust given the defendant's failure to provide the promised assistance. The court found that the original sentence had been based on the assumption that the defendant would cooperate, and this assumption had not been fulfilled. The court further reasoned that the defendant's lack of cooperation had resulted in a significant injustice, as the sentence was lower than it should have been had the court been aware of the true circumstances. The court ordered that the sentence be adjusted to reflect the defendant's lack of cooperation and to rectify the unjust discount previously applied.

Orders