Regina v Yucel - [2000] NSWCCA 532

CITATION: Regina v Yucel [2000] NSWCCA 532

FILE NUMBER(S): CCA 60517/00

HEARING DATE(S): 04/12/00

JUDGMENT DATE:
13 December 2000

PARTIES :

Regina v Savas Yucel

JUDGMENT OF: Meagher JA at 1; Hidden J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0234

LOWER COURT JUDICIAL
OFFICER : Mahoney DCJ

COUNSEL : (Crown): P G Berman SC
(Respondent): P G Hogan

SOLICITORS: (Crown): S E O'Connor
(Respondent): John B Hajje & Associates

CATCHWORDS: Sentencing - Crown Appeal against inadequacy - sentencing judge imposed non-parole period of 6.25% of overall term - delay of 6 months in hearing of appeal - Appeal upheld but in view of delay respondent re-sentenced to periodic detention.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Bugmy v The Queen (1990) 169 CLR 525
R v Behar (CCA, unreported, 14 October 1998)

DECISION: See paragraph 27

IN THE COURT OF
CRIMINAL APPEAL

60517/00

MEAGHER JA

HIDDEN J

CARRUTHERS AJ

Wednesday, 13 December 2000

REGINA v Savas YUCEL
JUDGMENT
1    MEAGHER JA: I reluctantly agree with Carruthers AJ. I say “reluctantly” because it seems to me a much heavier sentence was warranted.
2    HIDDEN J: I agree with Carruthers AJ.
3    CARRUTHERS AJ: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent Savas Yucel at the Sydney District Court on 23 June 2000, when the respondent appeared for sentence on one count of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the CrimesAct 1900, which provides a maximum penalty of twenty years imprisonment.
4    The respondent (who had earlier pleaded guilty to this offence) was sentenced by his Honour Judge Mahoney to imprisonment for four years to commence on 21 March 2000 and to expire on 20 March 2004. A non-parole period of three months and two days was imposed to commence on 21 March 2000 and to expire on 22 June 2000.
5    The respondent had in fact been in custody since 21 March 2000 and accordingly the effect of the sentence was that he became eligible to apply for parole on 23 June 2000. Parole was in fact granted and the respondent has been at liberty since 23 June 2000.
6    The notice of appeal was signed on 9 August 2000 and served on the respondent on 11 August 2000.
7    The respondent was born on 10 December 1979. He had a disturbed childhood. He was born in Australia to Turkish parents but effectively lived until the age of eight in Turkey. However, most of his life has been lived in Australia.
8    He was dealt with in the Children’s Court on four occasions for various offences, none of which attracted a period of detention.
9    Objectively, the subject offence was a serious one, as is clear from the Facts Sheet which was tendered by consent before his Honour:

“The defendant participated in an electronic recorded interview and made…

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 Yucel

Details

AGLC: Regina v Yucel [2000] NSWCCA 532
Case: [2000] NSWCCA 532
Decision Date: 13 December 2000

CaseChat Overview and Summary

The appeal before the court involved the Crown seeking to challenge the adequacy of a sentence imposed on Yucel, the respondent, who had been convicted of a serious offence. The matter was heard in the High Court of Australia. The Crown argued that the sentencing judge's imposition of a non-parole period amounting to 6.25% of the overall term was insufficient, given the gravity of the offence. The Crown's appeal was initially successful, but due to a six-month delay in hearing the appeal, the High Court reconsidered the appropriate sentence.

The primary legal issue before the court was whether the original sentence was inadequate, and if so, what sentence should be imposed in light of the delay. The court needed to balance the principle that delay may affect the availability of the original sentencing options against the need to ensure that sentences reflect the gravity of the offence. The Crown submitted that the delay should not excuse the inadequacy of the original sentence, while the respondent argued that the delay had made the original sentencing options unavailable.

The court acknowledged the importance of ensuring that sentences appropriately reflect the seriousness of the crime. However, it also recognised the impact of delay on the sentencing process. The court held that while the original sentence was inadequate, the delay in hearing the appeal meant that the original sentencing options were no longer available. As a result, the court imposed a sentence of periodic detention, which was considered appropriate under the circumstances. This sentence balanced the need to reflect the gravity of the offence with the impact of the delay on the sentencing options.

The court ordered that Yucel be re-sentenced to periodic detention, reflecting the court's determination that the original sentence was inadequate and that the delay in hearing the appeal necessitated a new sentencing approach. The precise terms of the periodic detention sentence were to be determined by the sentencing court, ensuring that it met the requirements of the case and the principles of sentencing.

Orders