The Queen v Riza Yilmaz - [2003] ACTCA 20

THE QUEEN v RIZA YILMAZ [2003] ACTCA 20 (31 OCTOBER 2003)

CRIMINAL APPEAL – sentencing – appeal by Crown against sentence – constraints on Crown appeal against sentence – manifest inadequacy – timing of plea – parity principle – whether respondent’s role expressly drawn to the attention of the sentencing judge – whether any distinction was made between the offenders as to their culpability.
CRIMINAL LAW – sentence – plea of guilty to count of trespass with intent to assault occasioning actual bodily harm – respondent previously acquitted of related count of murder – basis of fact upon which sentencing judge ought pass sentence.

Everett and Phillips v The Queen (1994) 181 CLR 295

The Queen v Griggs (1999) 95 FCR 490

The Queen v Hill [1979] VR 311

R v Delphin (2001) 79 SASR 429

R v Olbrich (1999) 199 CLR 270

Postiglione v The Queen (1997) 189 CLR 295

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 - 2003
No. SCC 262 of 1999

Judges: Gray, Cooper and Weinberg JJ
Court of Appeal of the Australian Capital Territory
Date: 31 October 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 – 2003
  )          No. SCC 262 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN
Appellant

AND: RIZA YILMAZ
Respondent

ORDER

Judges:  Gray, Cooper and Weinberg JJ
Date:  31 October 2003
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 – 2003
  )          No. SCC 262 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN
Appellant

AND: RIZA YILMAZ
Respondent

Judges:  Gray, Cooper and Weinberg JJ
Date:  31 October 2003
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent. The respondent pleaded guilty to a charge that, together with Mutlu Yildiz, he committed an offence of trespass with intent to assault occasioning actual bodily harm. Also charged was the respondent’s wife, Melissa Yilmaz, and she pleaded guilty to a charge of conspiracy to commit an assault occasioning actual bodily harm in respect of the same incident. On 19 December 2002, sentences were imposed on each of these participants. The prosecution has only appealed in respect of the sentence imposed upon the respondent.

The statement of facts

The “case statement” upon which the prosecution relied, and which the respondent accepted as constituting the facts upon which he was to be sentenced, set out the following in respect of the circumstances of the offence -

The background to the incident is that Melissa Yilmaz was for some months in a relationship with the deceased which ended in the weeks prior to 13…

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.

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Details

Case: [2003] ACTCA 20
Decision Date: 31 OCTOBER 2003

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on Riza Yilmaz by the sentencing judge, following Yilmaz's plea of guilty to the offence of trespass with intent to assault occasioning actual bodily harm. The appeal concerned the constraints on the Crown's ability to appeal a sentence on the grounds of manifest inadequacy, and the application of the parity principle in sentencing.

The central legal issues before the appellate court were whether the sentence imposed was so manifestly inadequate as to be unjust, and whether the sentencing judge had properly considered the basis of fact upon which sentence ought to be passed, particularly in light of Yilmaz's prior acquittal on a related charge of murder. The court was also required to determine whether Yilmaz's specific role in the offending conduct had been adequately drawn to the attention of the sentencing judge and whether any distinction had been made between him and other offenders regarding their respective culpability.

The appellate court dismissed the Crown's appeal. It reasoned that the sentencing judge had properly considered the available material and the basis of fact for sentencing. The court found no error in the sentencing judge's approach to the parity principle, noting that the sentencing judge had implicitly or explicitly considered the distinctions in culpability between the offenders. The court concluded that the sentence imposed was not demonstrably or manifestly inadequate, and therefore, the appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

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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