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Yavuz v The Queen

Yavuz v The Queen

Case [2022] ACTCA 5 14 February 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Yavuz v The Queen
Citation:	[2022] ACTCA 5
Hearing Date:	11 November 2021
DecisionDate:	14 February 2022
Before:	Elkaim ACJ, Mossop and Banks-Smith JJ
Decision:	Appeal dismissed
Catchwords:	APPEAL - CRIMINAL LAW - Sentence appeal - drug offences - importing border controlled drug - whether sentence manifestly excessive - parity principle - where appellant in custody during commission of offence - appeal dismissed
Legislation Cited:	Crimes Act 1914 (Cth), s 16A Criminal Code 1995 (Cth), ss 11.2A, 307
Cases Cited:	Apps v The Queen [2020] ACTCA 53 Butters v The Queen [2010] NSWCCA 1 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions (Cth) v Englisch [2009] VSCA 71 R v Ng [2012] WASCA 180 R v Pham [2015] HCA 39; 256 CLR 550 R v Poulakis [2020] ACTSC 247 R v Yavuz [2015] ACTSC 329 Shahbazi v The Queen [2016] VSCA 270 Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169
Parties:	Emin Oguz Yavuz ( Appellant) The Queen ( Respondent)
Representation:	Counsel Mr A Norrie ( Appellant) Mr C O'Donnell SC with Mr T Jones ( Respondent)
Solicitors Sydney Criminal Law Specialists ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 37 of 2020
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 21 September 2020 Case Title: R v Yavuz (No 2) Citation: [2020] ACTSC 248

THE COURT:

Introduction

The appellant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug, namely 1,771 grams of pure MDMA, contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and by virtue of s 11.2A of the Criminal Code.

The sentencing judge imposed a sentence of 8 years and 6 months’ imprisonment, commencing on 15 August 2018 and expiring on 14 February 2027, with a fixed non‑parole period of 5 years and 1 month, commencing on 15 August 2018 and concluding on 14 September 2023.

The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.

The appellant contended on appeal that the sentence was manifestly excessive in that it failed to adequately reflect parity principles. Parity was not raised in the notice of appeal as a specific error, but counsel for the appellant accepted during the hearing that it was the key argument, and the ground that the sentence was otherwise manifestly excessive was not pursued.

The point of reference for parity was the sentences imposed on three co-offenders, who were all sentenced by the same sentencing judge. Relevantly, the focus was on the sentence of the co-offender Peter Poulakis. Mr Poulakis was sentenced to a total sentence of 5 years and 9 months with a non-parole period of 2 years and 9 months, and was also sentenced for an additional offence: R v Poulakis [2020] ACTSC 247. It was agreed that the roles of the other co-offenders, Bilal…

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 Yavuz v The Queen

Details

AGLC: Yavuz v The Queen [2022] ACTCA 5
Case: [2022] ACTCA 5
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Elkaim ACJ, Mossop and Banks-Smith JJ, heard an appeal by Emin Oguz Yavuz against a sentence imposed by Loukas-Karlsson J of the Supreme Court of the ACT. The appellant had pleaded guilty to importing a commercial quantity of a border-controlled drug, specifically 1,771 grams of pure MDMA. The sentencing judge had imposed a total term of imprisonment of 8 years and 6 months, with a fixed non-parole period of 5 years and 1 month. The appeal was brought on the sole ground that the sentence was manifestly excessive, primarily due to a failure to adequately reflect the parity principle.

The central legal issue before the Court of Appeal was whether the sentence imposed on the appellant was demonstrably excessive when compared to the sentences received by his co-offenders, particularly Peter Poulakis, who received a total sentence of 5 years and 9 months with a non-parole period of 2 years and 9 months for the same importation offence, as well as an additional trafficking offence. The appellant argued that his role in the joint criminal enterprise warranted a sentence that was more closely aligned with that of Mr Poulakis, given their comparable levels of culpability.

The Court of Appeal considered the sentencing judge's findings regarding the appellant's role, which included directing activities, sourcing drugs, arranging finance, and liaising with co-offenders. It was noted that the sentencing judge had accepted that the appellant and Mr Poulakis were equivalent in their moral culpability and at the "top" of the joint enterprise. However, the Court also acknowledged significant aggravating factors identified by the sentencing judge, including the fact that the offence was committed while the appellant was already in custody serving a sentence for previous importation convictions, and the appellant's extensive criminal history for similar offences. The Court found that the sentencing judge had carefully considered the parity principle and the differences in the subjective circumstances of the appellant and Mr Poulakis, including the appellant's prior convictions and the fact he offended while incarcerated.

The appeal was dismissed. The Court concluded that the sentencing judge had not erred in her assessment of the objective seriousness of the appellant's offending or his subjective circumstances. The Court found that the sentencing judge had properly applied the parity principle, but that the differences in the objective and subjective factors, particularly the appellant's prior convictions and the commission of the offence whilst in custody, justified the disparity in the sentences imposed on the appellant and Mr Poulakis.

Orders