Toksoz v The Queen - [2019] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Toksoz v R [2019] NSWCCA 10
Hearing dates: 26 November 2018
Date of orders: 13 February 2019
Decision date: 13 February 2019
Before: Hoeben CJ at CL [1]
Bellew J [2]
Campbell J [42]
Decision:
(1)   Leave to appeal granted.

(2)   Appeal dismissed.

(3)   The sentence imposed by the sentencing judge is confirmed.

(4)   The applicant is to be returned to custody forthwith.

(5)   The applicant is to be released at the expiration of his non-parole period on 12 September 2019.
(6)   The applicant’s sentence will expire on 12 September 2020.
Catchwords: CRIMINAL LAW – Sentence – Appeal - Application for leave to appeal – Offences of being an accessory after the fact – Whether sentencing judge erred in the assessment of the objective seriousness of the offending – Whether sentence was manifestly excessive – Whether the principle in R v De Simoni was breached by the sentencing judge
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: JM v R [2014] NSWCCA 297
R v De Simoni [1981] 147 CLR 383; [1981] HCA 31
R v Palu [2002] NSWCCA 381
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 164
Turkmani v R [2014] NSWCCA 186
Category: Principal judgment
Parties: Ahmet Toksov - Applicant
Regina - Crown
Representation:
Counsel:
A Francis – Applicant
C Curtis – Crown
Solicitors:
Bannisters – Applicant
Solicitor for Public Prosecutions NSW – Crown

File Number(s): 2014/373454 - 018
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 February 2018

Before:

Judge Wilson SC

File Number(s):

2014/00373454

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
BELLEW J: On 15 November 2017 Ahmet Toksoz (“the applicant”) appeared before his Honour Judge Wilson SC in the District Court of NSW and pleaded guilty to an indictment containing the following counts:

On 11 December 2014, in Prestons in the State of New South Wales, Hasan Goktas (“Goktas”) did wound Timothy Venesjarvi, within intent to cause grievous bodily harm to him, and Ahmet Toksoz, knowing the said Hasan Goktas to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, between 11 and 19 December 2014 in the State, did receive, harbour, maintain and assist the said Hasan Goktas (contrary to the Crimes Act 1900 (NSW) ss 33(1)(a) and 350) (count 1);

On 11 December 2014, in Prestons in the State of New South Wales, Hasan Goktas did wound Kelsey Coakes and was reckless as to causing actual bodily harm to him, and Ahmet Toksoz, knowing the said Hasan Goktas to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, between 11 and 19 December 2014 in the said State, did receive, harbour, maintain and assist the said Hasan Goktas (contrary to the Crimes…

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 Toksoz v The Queen

Details

AGLC: Toksoz v The Queen [2019] NSWCCA 10
Case: [2019] NSWCCA 10
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the case of Toksoz v The Queen, the appellant, a convicted accessory after the fact, appealed against his sentence. The trial judge had imposed a custodial sentence, which the appellant argued was excessive. The High Court of Australia was tasked with determining whether the sentencing judge had erred in assessing the objective seriousness of the offending, whether the sentence was manifestly excessive, and whether the principle in R v De Simoni had been breached.

The court was required to examine the circumstances of the case to determine if the trial judge had appropriately assessed the objective seriousness of the offence. This involved reviewing the facts and circumstances that led to the appellant's conviction. The court also considered whether the sentence imposed was manifestly excessive, which required a detailed analysis of the principles of sentencing and the specific circumstances of the offence. Finally, the court assessed whether the principle in R v De Simoni, which concerns the appropriate balance between punishment and rehabilitation, had been breached by the sentencing judge.

The court concluded that the sentencing judge had not erred in assessing the objective seriousness of the offending. The sentence imposed was considered appropriate in light of the circumstances of the case. The court found that the sentence was not manifestly excessive, as it was proportionate to the gravity of the offence. Furthermore, the court determined that the principle in R v De Simoni had not been breached, as the sentence reflected a proper balance between punishment and rehabilitation.

The appeal was dismissed, and the original sentence was upheld. The court did not grant leave to appeal, finding that the sentence imposed was appropriate and that the appellant had not demonstrated any grounds for an appeal.

Orders