Soylemez v The Queen

[2014] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0199

AYHAN SOYLEMEZ	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 February 2014
DATE OF JUDGMENT	5 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 23
JUDGMENT APPEALED FROM	DPP v Soylemez (Unreported, Country Court of Victoria, Judge Stuart, 30 August 2013).

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CRIMINAL LAW – Application for leave to appeal – Sentencing – Misconduct in public office – Possession of a drug of dependence – Supplying drugs (heroin) into a prison where applicant was serving as a prison officer – Sentence of two years and three months with a non-parole period of 15 months not manifestly excessive – Leave to appeal refused – Crimes Act 1958 ss 73 and 320 – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Turner	Stephen Andrianakis & Associates
For the Respondent	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. I would refuse the application for leave to appeal.

BONGIORNO JA:

1. On 12 June 2013 the applicant, Ayhan Soylemez, pleaded guilty in the County Court to one charge of misconduct in a public office and two charges of possession of a drug of dependence.  He was sentenced by a judge in the County Court to two years and three months’ imprisonment on the misconduct charge, which carries a ten year maximum, and convicted and discharged on the possession charges.  His Honour fixed a 15 month non-parole period.

1. In July 2010, the applicant, a prison officer at the Dame Phyllis Frost Correctional Facility, smuggled heroin into the prison for the use of a prisoner.  He obtained the heroin from an associate of the prisoner who, in return, he expected to provide him with drugs for his own use at a discount price.  In sentencing the applicant, the trial judge referred to the circumstances of the offence, its seriousness, the modus operandi of the applicant and the fact that some planning was engaged to effect the result.  He noted the effect on prison discipline such conduct was liable to engender and the consequent seriousness of the offence.

1. His Honour also noted the long period of time which had elapsed between the applicant's offending and sentence and specifically absolved the applicant of blame for this delay by treating the situation as equivalent to his having pleaded guilty at the earliest possible date.  The applicant had no prior convictions and the judge assessed his rehabilitation prospects as good.  He also specifically took into account the harsh effect a prison sentence would probably have on a prison officer compared to an ordinary prisoner.

1. The applicant now seeks leave to appeal his sentence on the sole ground of manifest excess.  He referred in his argument to a number of the usual sentencing

considerations and submitted that the trial judge had given too much weight to the aggravating factors and insufficient weight to some mitigating factors.

1. To establish manifest excess, an appellant must establish that no reasonable judge could have imposed the sentence.  The excess must be manifest.  It must be able to be described as plain, clear, obvious, apparent, unmistakable or some such synonymous adjective.  In this case, the sentence of two years and three months, with a one‑year three month period to serve as a non‑parole period, is not even arguably excessive, much less obviously so.

1. Counsel for the applicant argued that the trial judge did not take into account, or gave insufficient weight to, the fact that the applicant had hitherto been a person of good character.  This argument must be rejected for two reasons.  Firstly, the trial judge did take into account the applicant's previous good character.  This is set out in paragraph 18 of his Honour’s sentencing remarks.  Secondly, the trial judge referred to the fact that the applicant obtained his job as a prison officer because he was a person of good character and that the abuse of trust was only possible because of this.  Counsel's submission was to the effect that the sentencing judge ought not to have discounted the applicant’s previous good character by reason of the fact that he was in a position of trust and that that enabled him to commit the offence.  

1. Even if there was something in the submission made by counsel on behalf of the applicant, in the circumstances of this case, there is no reason to hold that the two years and three months sentence, or the non‑parole period, were in any sense excessive, and certainly not manifestly so.

1. Accordingly, I would refuse leave to appeal in this case.

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