Medium Neutral Citation: Yaman v R [2020] NSWCCA 239
Hearing dates: 9 July 2020
Date of orders: 25 September 2020
Decision date: 25 September 2020
Before: Fullerton J at [1];
Wilson J at [12];
Ierace J at [140].
Decision:
1. Leave to appeal on grounds 1, 2 and 4 granted;
2. Leave to appeal on ground 3 refused;
3. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – domestic violence offences – offences of aggravated break enter commit assault occasioning actual bodily harm and contravention of an apprehended domestic violence order – history of domestic violence offences against same victim – use made on sentence of applicant’s criminal record – assessment of objective seriousness – question of manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Cherry v R [2017] NSWCCA 150
Faehringer v R [2017] NSWCCA 248
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kerr v R [2016] NSWCCA 218
Mulato v R [2006] NSWCCA 282
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v CTG [2017] NSWCCA 163
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Van Der Baan v R [2012] NSWCCA 5
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Hakan Yaman (Applicant)
The Crown (Respondent)
Representation:
Counsel:
G Lewer (Applicant)
D Patch (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/57009
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Wollongong District Court

Jurisdiction:

Criminal

Date of Decision:

21 October 2019

Before:

Frearson ADCJ SC

File Number(s):

2019/57009

Judgment

FULLERTON J: I agree with Wilson J that the appeal against sentence be dismissed.
I also agree with her Honour, and for the reasons her Honour has expressed, that leave to appeal on ground 3 should be refused and that leave to appeal on ground 4 should be granted but that both grounds be dismissed.
While I also agree that grounds 1 and 2 should be dismissed, I would have granted leave to allow those grounds to be advanced.

Ground 1: The sentencing judge was in error in finding that the aggravated break and enter involved “some significant planning”.

To the extent that the applicant’s submissions in support of this ground of appeal are to be understood as suggesting that the sentencing judge was in error in treating his finding that there was a significant degree of planning involved in the commission of the aggravated break, enter and steal offence as a statutory feature of aggravation in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I agree with Wilson J that when the sentencing judge’s remarks are read in context,…

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 Yaman v R

Details

AGLC: Yaman v The Queen [2020] NSWCCA 239
Case: [2020] NSWCCA 239
Decision Date: 25 September 2020

CaseChat Overview and Summary

In the case of Yaman v R, the applicant appealed against his sentence for domestic violence offences, including aggravated break and enter to commit an assault occasioning actual bodily harm and contravention of an apprehended domestic violence order. The matter was heard by the Supreme Court of New South Wales, Court of Criminal Appeal. The applicant had a history of domestic violence offences against the same victim and had breached an apprehended domestic violence order. The Crown relied on the applicant's criminal record to argue for a higher sentence, and the primary judge assessed the objective seriousness of the offences.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the primary judge had appropriately considered the objective seriousness of the offences and the applicant's criminal history. The applicant argued that the sentence was manifestly excessive, and the Crown contended that the sentence was appropriate given the circumstances. The court had to determine whether the sentence imposed was manifestly excessive and whether the primary judge had appropriately exercised their discretion in sentencing the applicant.

The court held that the sentence was not manifestly excessive and that the primary judge had appropriately considered the objective seriousness of the offences and the applicant's criminal history. The court found that the primary judge had correctly assessed the objective seriousness of the offences and had appropriately considered the applicant's criminal history. The court also found that the sentence imposed was within the range of sentences that could be considered appropriate for the offences committed. The appeal was dismissed.

No further orders were made by the court. The applicant's appeal against his sentence was dismissed, and the original sentence remains in place.

Orders