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Tuncbilek v R

Tuncbilek v R

Case [2020] NSWCCA 30 4 March 2020

Appeal

Sentencing

Mental Health

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tuncbilek v R [2020] NSWCCA 30
Hearing dates: 24 February 2020
Date of orders: 04 March 2020
Decision date: 04 March 2020
Before: Meagher JA at [1]
Johnson J at [2]
Hamill J at [90]
Decision:
1. Time for the Applicant to seek leave to appeal against sentence extended to 29 November 2019.
2. Grant the Applicant leave to appeal against sentence.
3. Appeal against sentence imposed on 13 August 2018 is allowed and the sentence is quashed.
4. For the offence of assault with intent to rob whilst armed with an offensive weapon, the Applicant is sentenced to imprisonment for three years comprising a non-parole period of two years and three months commencing on 24 December 2017 and expiring on 23 March 2020, with a balance of term of nine months commencing on 24 March 2020 and expiring on 23 December 2020.
5. The Applicant will be entitled to release on parole on 24 March 2020.

Catchwords: APPEAL – application to seek leave to appeal against sentence – offence of assault with intent to rob whilst armed with an offensive weapon – applicant threatened service station attendant with butter knife and demanded money and then asked victim to call police – whether error in assessment of objective seriousness of the offence – where applicant had a mental illness and his motivation was to be arrested – where sentencing Judge delivered ex tempore remarks on sentence – where no conclusion expressed with regard to objective seriousness and no reference to moral culpability – error established – whether error in failure to consider the role of the applicant’s mental health – error established – whether new evidence of DVD depicting the offence was admissible on appeal in light of Crown concession clarifying ambiguous factual issue - DVD not admitted – lesser sentence warranted – applicant resentenced
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Aslan v R [2014] NSWCCA 114
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Vic) v Arvanitidis (2008) 202 A Crim R 300; [2008] VSCA 189
Hazell v R [2015] NSWCCA 26
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jinnette v R [2012] NSWCCA 217
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Mulato v R [2016] NSWCCA 2
R v Gagalowicz [2005] NSWCCA 452
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
Zreika v R (2012) 223 A…

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 Tuncbilek v R

Details

AGLC: Tuncbilek v R [2020] NSWCCA 30
Case: [2020] NSWCCA 30
Decision Date: 04 March 2020

CaseChat Overview and Summary

The case involved Tuncbilek, the appellant, who was appealing against a sentence imposed by a lower court for an assault with intent to rob while armed with an offensive weapon. The incident occurred at a service station, where the appellant threatened the attendant with a butter knife and demanded money, subsequently asking the victim to call the police. The appellant argued that the sentencing judge had made an error in assessing the objective seriousness of the offence, particularly considering his mental illness and his motivation to be arrested. The appellant further contended that the judge did not properly address his mental health or his moral culpability during sentencing.

The legal issues before the court were whether there was an error in the assessment of the objective seriousness of the offence, whether the judge failed to consider the appellant’s mental health, and whether a DVD depicting the offence should be admitted as new evidence given the Crown's concession on an ambiguous factual issue. The court found that the sentencing judge indeed erred by not adequately addressing the objective seriousness and moral culpability of the offence. Additionally, it was established that the judge's failure to consider the appellant's mental health was also an error. However, the court ruled that the DVD evidence was not admissible on appeal as it did not resolve any significant ambiguity in the facts.

Consequently, the court decided that the appellant warranted a lesser sentence due to the errors identified. The appellant was resentenced, with the court taking into account the previously unconsidered factors of the objective seriousness, the appellant’s mental health, and his moral culpability. The final orders were made to reflect the resentence, ensuring that the errors identified were properly addressed in the new sentencing determination.

Orders