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Sayin v R

Sayin v R

Case [2008] NSWCCA 307 16 December 2008

Criminal Liability

Sentencing

Maliciously cause grievous bodily harm

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Sayin v R [2008] NSWCCA 307

HEARING DATE(S): 5 December 2008

JUDGMENT DATE:
16 December 2008

JUDGMENT 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 383

PARTIES: Okan SAYIN - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/5682

COUNSEL: G K Walsh - Applicant
V Lydiard - Respondent/Crown

SOLICITORS: Phillip Gibson - Applicant
S Kavanagh - Public Prosecutions

LOWER 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

McCLELLAN CJ at CL
GROVE J
HOWIE J
16 December 2008

Okan SAYIN v REGINA

Judgment

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…

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 Sayin v R

Details

AGLC: Sayin v R [2008] NSWCCA 307
Case: [2008] NSWCCA 307
Decision Date: 16 December 2008

CaseChat Overview and Summary

The appellant, Sayin, was convicted of inflicting grievous bodily harm with intent, a crime carrying a maximum penalty of 15 years' imprisonment. The victim, who was severely injured, was hospitalised for an extended period and suffered long-term physical and psychological consequences. The Crown sought to elevate the crime to one attracting greater punishment by proving intent, which would increase the maximum penalty to life imprisonment. The trial judge accepted the Crown's case on intent and sentenced the appellant to the maximum penalty for the actual offence of which he was convicted. The appellant appealed against the severity of the sentence, arguing that it was excessive and that the Crown had failed to discharge its obligation to provide relevant background information.

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