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Turkmani v R

Turkmani v R

Case [2014] NSWCCA 186 17 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turkmani v R [2014] NSWCCA 186
Hearing dates: 30 July 2014
Decision date: 17 September 2014
Before: Hoeben CJ at CL at [1]
Beech-Jones J at [2]
Hamill J at [94]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: SENTENCING - sentencing procedure - destroying items knowing they would be used in judicial proceedings - possession of drug manufacturing apparatus - whether sentencing judge erred in sentencing the applicant on facts that gave rise to a more serious offence - application of De Simoni principle - not inaccurate to describe elements of offence as designed to "frustrate" judicial proceedings - applicant did not possess mental element beyond that specified in first offence charged - whether sentence imposed for second offence was "too severe" - level of criminality correctly characterised - sentence for second offence not unreasonable or unjust - leave sought to adduce further medical evidence - threshold for admission of material met - whether material justifies any reduction of the applicant's non-parole period - concerns raised by evidence before Court do not warrant reduction in sentence - appeal dismissed.
Legislation Cited: - Crimes Act 1900 (NSW), s 311, s 312, s 315, s 317, s 319
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code (WA), s 391, s 393
- Drug Misuse and Trafficking Act 1985 (NSW), s 24A, s 33AB
Cases Cited: - Bailey v R (1988) 35 A Crim R 458
- R v BD [2001] NSWCCA 184; 122 A Crim R 28
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Iglesias v R [2006] NSWCCA 261
- R v Kertebani; Kertebani v R [2010] NSWCCA 221
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
- R v De Simoni [1981] HCA 31; 147 CLR 383
- R v Ehrenburg (Supreme Court (NSW), 14 December 1990, unrep)
- R v Keir [2004] NSWCCA 106
- R v Mobbs [2005] NSWCCA 371
- R v Smith (1987) 44 SASR 587
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13
Category: Principal judgment
Parties: Bassam Turkmani (Applicant)
Crown (Respondent)
Representation: Solicitors:
Bannisters Lawyers (Applicant)
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/333915
Decision under appeal

Date of Decision:

2013-04-12 00:00:00

Before:

Zahra DCJ

File Number(s):

10/333915

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J.

BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court on the applicant…

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 Turkmani v R

Details

AGLC: Turkmani v R [2014] NSWCCA 186
Case: [2014] NSWCCA 186
Decision Date: 17 September 2014

CaseChat Overview and Summary

The case of Turkmani v R involved the sentencing of the appellant, who had been found guilty of two separate offences: destroying items knowing they would be used in judicial proceedings and possession of drug manufacturing apparatus. The case was heard in the High Court of Australia, which was asked to determine whether the sentencing judge had erred in his assessment of the appropriate sentence for the appellant. The central issue was whether the sentence imposed for the second offence was "too severe" given the level of criminality involved and whether the court should have considered additional medical evidence in determining the sentence.

The court held that the sentencing judge did not err in his assessment of the appropriate sentence for the appellant. The elements of the offence of destroying items knowing they would be used in judicial proceedings were designed to "frustrate" judicial proceedings and the appellant had clearly engaged in conduct that fell within these elements. The court also found that the appellant did not possess the mental element beyond that specified in the first offence charged. The court held that the level of criminality correctly characterised the appellant's conduct and that the sentence for the second offence was not unreasonable or unjust.

The court also considered the appellant's application to adduce further medical evidence. The court found that the threshold for admission of material had been met and that the material did raise concerns about the appellant's mental health. However, the court held that the evidence did not justify any reduction of the appellant's non-parole period. The court found that the concerns raised by the evidence before the Court did not warrant a reduction in sentence and dismissed the appeal.

In conclusion, the High Court of Australia held that the sentencing judge did not err in his assessment of the appropriate sentence for the appellant and that the sentence for the second offence was not unreasonable or unjust. The court also found that the concerns raised by the medical evidence did not warrant any reduction in sentence and dismissed the appellant's appeal.

Orders