New South Wales
Court of Criminal Appeal
CITATION: Sayin v R [2008] NSWCCA 307 HEARING DATE(S): 5 December 2008
JUDGMENT DATE:
16 December 2008JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Howie J at 46 DECISION: Appeal allowed.
Appellant resentenced.CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Maliciously cause grievous bodily harm - Finding of intent which would elevate crime to one attracting greater punishment - Assessment close to available maximum for actual offence of which offender convicted - Resentence required - Discussion of extent of Crown obligation to tender material touching on prior record - Serious objective facts but sentence must take into account statutory maximum CATEGORY: Principal judgment CASES CITED: Courtney v R [2007] 172 A Crim R 371
Ibbs v The Queen (1987) 163 CLR 447
R v Engert [1995] 84 A Crim R 67
R v George [2004] 149 A Crim R 38
R v Israil [2002] NSWCCA 255
R v Mitchell, unreported, FCA 9 December 1997
R v Scognamiglio [1991] 56 A Crim R 81
R v Shankley [2003] NSWCCA 253
R v Thomson & anor (2000) NSWLR 383
R v Walker [2005] NSWCCA 109
R v Way (2004) 60 (NSWLR) 168
R v Wickham [2004] NSWCCA 193
The Queen v De Simoni (1981) 147 CLR 383PARTIES: Okan SAYIN - Applicant
REGINA - Respondent/CrownFILE NUMBER(S): CCA 2007/5682 COUNSEL: G K Walsh - Applicant
V Lydiard - Respondent/CrownSOLICITORS: Phillip Gibson - Applicant
S Kavanagh - Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0226 LOWER COURT JUDICIAL OFFICER: Hosking DCJ LOWER COURT DATE OF DECISION: 30/11/07
CCA 2007/5682
16 December 2008McCLELLAN CJ at CL
GROVE J
HOWIE J
1 McCLELLAN CJ at CL: I agree with Grove J and with the additional remarks of Howie J.
2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hosking DCJ in the Sydney District Court. In circumstances which are detailed in documentation to which I will refer the applicant pleaded guilty to a count of maliciously inflicting grievous bodily harm for which the prescribed maximum penalty is imprisonment for 7 years. His Honour sentenced the applicant to a total term of 5 years imprisonment in respect of which he specified a non-parole period of 3 years. He stated that, without the plea of guilty, the overall sentence should have been approximately 5 years 9 months imprisonment. The sentence hearing proceeded upon an agreed statement of facts bearing the signatures of the solicitors for the applicant and the prosecution, the police officer in charge of the investigation, the victim and the applicant. The content of this document was:
- “1. At about 9.00pm on Thursday 29 June 2006, the offender attended the Peppermint Lounge at the Crest Hotel, Darlinghurst, with his then fiancée Victoria Berton to watch various live comedy acts.
- 2. Shortly after, the victim Clinton O’Grady and his friends arrived at…
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- AGLC
- Sayin v R [2008] NSWCCA 307
- Case
- [2008] NSWCCA 307
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentence was excessive and whether the Crown had properly discharged its obligation to provide information relevant to the appellant's criminal history. The court considered the seriousness of the crime and the appellant's criminal history, but also noted that the sentence was close to the maximum penalty for the actual offence of which the appellant was convicted. The court also considered the extent of the Crown's obligation to provide information about the appellant's prior record, noting that while the Crown had a duty to disclose relevant information, it was not required to provide every detail of the appellant's criminal history.
The court found that the sentence was not excessive, given the seriousness of the crime and the appellant's criminal history. The court also found that the Crown had discharged its obligation to provide relevant information, as the material provided was sufficient to enable the appellant to challenge the Crown's case on intent. The court noted that while the appellant's criminal history was relevant to the sentence, it was not the sole consideration, and the court was required to take into account the statutory maximum penalty for the offence of which the appellant was convicted. The court held that the sentence was appropriate, given the objective facts of the case, and dismissed the appeal.
The court did not make any orders in relation to the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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