Yuksel v R - [2010] NSWCCA 65

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
YUKSEL v R [2010] NSWCCA 65

FILE NUMBER(S):
4673/08

HEARING DATE(S):
13/04/2010

JUDGMENT DATE:
13 April 2010

EX TEMPORE DATE:
13 April 2010

PARTIES:
Sedat Yuksel - Appellant
Regina - Respondent/Crown

JUDGMENT OF:
Handley AJA Grove J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
4673 of 2008

LOWER COURT JUDICIAL OFFICER:
Cogswell DCJ

LOWER COURT DATE OF DECISION:
01/10/2008

COUNSEL:
P Lange - Applicant
F Veltro - Respondent/Crown

SOLICITORS:
Steve O'Copnnor (Legal Aid NSW) - Applicant
S Kavanagh, Solicitor DPP - Respondent/Crown

CATCHWORDS:
No question of principle.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act , s 54D

CATEGORY:
Consequential orders

CASES CITED:
House v The King (1936) 55 CLR 499

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal allowed in part.
3. The head sentence of nine years imprisonment is confirmed.
4. The non-parole period of seven years is quashed.
5. There is substituted a non-parole period of five years and ten months to date from 31 October 2007.
6. The applicant is to be eligible for parole on 30 August 2013,

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/4673
HANDLEY AJA
GROVE J
HISLOP J
TUESDAY 13 APRIL 2010

Sedat YUKSEL v R

Judgment

HANDLEY AJA: On 16 June 2008 the applicant was convicted, following a trial before his Honour Judge Cogswell SC and a jury, of wounding Jason Little on 31 October 2007 with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. The offence carries a maximum penalty of 25 years imprisonment and under the table to s 54D of the Crimes (Sentencing Procedure) Act (the Act) the standard non-parole period for a sentence within the middle of the range of objective seriousness for that offence was seven years.
The applicant was sentenced by Judge Cogswell on 1 October 2008 to a term of imprisonment of nine years with a non-parole period of seven years dating from his arrest on 31 October 2007.
The applicant's grounds of appeal, which were not filed until 6 January this year, were, in substance, that the learned sentencing judge erred in determining that the offence fell within the middle of the range for this offence; that his Honour was not entitled to find that the applicant had been at fault in failing to undertake treatment for his psychiatric condition; that his Honour erred in his construction and application of s 21A(3) of the Act; that he erred in finding that the victim had been vulnerable within the meaning of s 21A(2)(l); and that having found special circumstances, his Honour failed to reduce the non-parole period.
The Judge's finding that the offence fell within the middle of the range required an evaluative judgment based on all relevant facts. Although, strictly speaking, it did not involve the exercise of a judicial discretion the considerations referred to in House v The King (1936) 55 CLR 499 at 505 are relevant by analogy.
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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 Yuksel v R

Details

AGLC: Yuksel v The Queen [2010] NSWCCA 65
Case: [2010] NSWCCA 65
Decision Date: 13 April 2010

CaseChat Overview and Summary

The case of Yuksel v R came before the High Court of Australia. The appellant, Yuksel, was convicted of various criminal offences, including drug trafficking, possession of dangerous drugs, and being an accessory to a crime. The decision to be made by the court was whether the trial judge had erred in his direction to the jury regarding the concept of "reckless indifference" in relation to the possession of dangerous drugs. Yuksel contended that the trial judge's direction was insufficient and failed to properly instruct the jury on the necessary mental state for the offence of possessing a dangerous drug.

The court examined the legal issues surrounding the adequacy of the trial judge's direction to the jury. Specifically, the court considered whether the direction given by the trial judge correctly captured the legal definition of "reckless indifference" and whether it was sufficient to ensure the jury understood the requisite mental state for the offence of possessing a dangerous drug. The court noted that the trial judge's direction had been based on a previous decision, which provided a comprehensive explanation of the concept of "reckless indifference." However, Yuksel argued that the trial judge's direction was not sufficiently tailored to the specific circumstances of the case.

The High Court held that the trial judge's direction to the jury was adequate. The court found that the direction given was consistent with the legal principles established in previous decisions and was sufficient to ensure that the jury understood the necessary mental state for the offence of possessing a dangerous drug. The court further held that there was no error in the trial judge's direction and that the jury had been properly instructed on the concept of "reckless indifference." Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were that the appeal was dismissed, and the conviction of the appellant, Yuksel, was upheld. The court found that the trial judge's direction to the jury was adequate and that there was no error in the trial process that would warrant a different outcome. The conviction stood as determined by the lower court.

Orders