Regina v Sahin Ugur

[2001] NSWCCA 346

CITATION:	Regina v Sahin Ugur [2001] NSWCCA 346
FILE NUMBER(S):	CCA 60137/01
HEARING DATE(S):	17 August 2001
JUDGMENT DATE:	17 August 2001
PARTIES :	Regina Sahin Ugur
JUDGMENT OF:	Sully J at 1; Smart AJ at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/1039
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	G. Smith - Crown H. Dhanji - Appellant
SOLICITORS:	S. E. O'Connor - Crown Legal Aid Commission - Appellant
LEGISLATION CITED:	Crimes Act Criminal Appeals Act
DECISION:	Extension of time granted to appeal; Leave to appeal against sentence; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL 60137/01 SULLY J

SMART AJ

Friday 17 August 2001

REGINA v SAHIN UGUR
JUDGMENT

1 SULLY J: On 31 October 2000 and in the Penrith District Court the present applicant for leave to appeal, Mr Ugur, pleaded guilty before Gibson QC DCJ to three related matters.

2 The first of them involved an offence of malicious wounding with intent to do grievous bodily harm. Such an offence contravenes s 33 of the Crimes Act and attracts, upon conviction, a statutory maximum penalty of imprisonment for twenty-five years.

3 The second of the three matters involved an offence of malicious wounding, a contravention of s 35(a) of the Crimes Act and attracting, upon conviction, a statutory maximum period of imprisonment of seven years.

4 The third and final of the three matters was an offence of common assault, contravening s 61 of the Crimes Act and attracting upon conviction a statutory maximum period of imprisonment of two years.

5 The victim in the first matter was the applicant's wife. The victims in the second and third matters were his step-children. Gibson QC DCJ sentenced the applicant in connection with the first matter to imprisonment for six years, setting a non-parole period of four and a half years. In respect of each of counts 2 and 3, his Honour fixed a term of eighteen months' imprisonment dating them so as to run concurrently with the sentence imposed in respect of the first matter.

6 The material facts are set out in all necessary detail in the remarks on sentence. It is not necessary to canvas them in any detail. It suffices to observe that the essence of the malicious wounding offence was an attack by the applicant upon his wife with what the sentencing Judge described as "a small axe/tomahawk type weapon". The applicant inflicted with that weapon a number of blows to the victim's head and wrist. She had to undergo some not insignificant surgical work in order to repair the injuries thus caused.

7 The injuries inflicted upon the two children were not of the same severity, although they were not simply trivial.

8 It is not contended, in connection with the present application, that the learned sentencing Judge made any error in his understanding of the nature and purport of the facts as found. Nor is it objected that the head sentence proposed in respect of the first matter is appellably excessive. What is contended is that his Honour fell into appellable error in the way he approached the fixing of a non-parole period.

9 His Honour in the remarks on sentence canvassed a number of matters which are normally described as subjective matters. It is not contended that his Honour did not correctly identify them, or correctly discuss and make findings in connection with them. The essence of what is put is that either some or all of those matters were capable of amounting to "special circumstances" in the relevant statutory sense, that his Honour did not discuss them at all in that particular context, and that his Honour thereby and without more fell into appellable error; and that the proper correction by this Court of that error would entail the setting aside of the non-parole period and the substitution of another and more lenient non-parole period.

10 It can be said at once that his Honour did not in so many words refer to special circumstances. I do not, myself, subscribe to the view, and I am not aware that there is any authority that entails as a necessary consequence, that when a sentencing Judge, in particular a sentencing Judge of the experience of the present primary Judge, does not actually mention the words "special circumstances" it is thereupon to be assumed as some kind of absolute that the Judge has simply overlooked the need to consider that aspect of affairs, and has thereupon fallen into appellable error.

11 Circumstances vary with particular cases, and it is necessary in every particular case to have a level-headed regard to the total structure of what is said in the particular remarks on sentence in the particular case.

12 I would, for myself, not be persuaded to draw the inference that the learned primary Judge in the present case quite simply overlooked the need to consider at all the question of special circumstances. Even were the contrary conclusion to be reached, that would not necessarily determine the present application in the applicant's favour, for it would then be necessary for this Court to consider whether, upon a reasonable view of the available material, a different and more lenient sentence was, as the Criminal Appeals Act put it, "warranted in law".

13 In the present case it seems to me sufficient to say that I have not been persuaded that if the proper way of approaching the application is to consider that latter question, that a case has been shown for the conclusion that a different and more lenient sentence should be imposed. It is not necessary to dilate upon the objective and subjective circumstances, and things of that kind, beyond saying this: that when every allowance is made for the matters peculiar to the individual offender, when every allowance is made for special circumstances correctly identified and properly understood, and when those matters are brought into a level-headed balance with the objective criminality of what was done, as in my view that criminality is rightly to be denominated, then on a fair view overall it could not reasonably be found that the sentence imposed required correction in this Court.

14 I would favour the following orders:

1. Grant the necessary extension of time to permit the hearing of an application for leave to appeal against sentence.

2. Grant leave to appeal against sentence.

3. Appeal against sentence dismissed.

15 SMART AJ: I agree. In my opinion the criminality revealed by the circumstances in this case is such that a lesser non-parole than that imposed was just not open to the judge.

16 SULLY J: The orders of the Court will be as I have proposed them.

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