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Court of Criminal Appeal 6 December 1999

Regina v Korkmazer

[1999] NSWCCA 454

Assault & violence
ACTS CITED : CRIMES ACT 1900

Citation: Regina v Korkmazer [1999] NSWCCA 454
Court: New South Wales Court of Criminal Appeal
Date: 6 December 1999
Judge(s): Fitzgerald JA, Newman J, Greg James J

Background

The appellant, Yilmaz Korkmazer, had entered a guilty plea in committal proceedings before a magistrate. The matter proceeded through the Local Court and was ultimately dealt with in the District Court before Woods DCJ.

The dispute centred on which offence the appellant had actually pleaded guilty to. The prosecution ultimately conceded that the proceedings had not been handled with sufficient care at either court level.

  • Whether the appellant was convicted and sentenced for an offence under s 33 of the Crimes Act 1900 when his guilty plea had, at most, been entered in relation to the lesser offence under s 35 of the same Act
  • Whether the conviction and sentence should be quashed in those circumstances

Decision

Fitzgerald JA delivered brief reasons, noting that the prosecution's frank concessions themselves illustrated that the proceedings had miscarried in both the Local Court and the District Court. The central problem was straightforward: the appellant had been convicted and sentenced under s 33 of the Crimes Act 1900, a more serious provision, when his guilty plea extended only to a s 35 offence (or, at the very least, that was an arguable position).

Because the prosecution agreed with that characterisation, all parties were in accord that the only appropriate course was to grant leave to appeal, uphold the appeal, and quash both the conviction and sentence. The matter was remitted so that the proceedings in which the appellant originally pleaded guilty could continue before the relevant magistrate.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Conviction and sentence quashed
  • The proceedings before the magistrate at which the appellant pleaded guilty to be continued at a time and place specified by the magistrate who conducted the committal on 25 February 1998, or, failing that, by the Chief Magistrate

Key Takeaways

  • A conviction and sentence imposed for an offence under s 33 of the Crimes Act 1900 cannot stand where the defendant's guilty plea extended, at most, to the lesser offence under s 35 of that Act.
  • The Court of Criminal Appeal confirmed that prosecutorial concessions, freely and frankly made, can be decisive in establishing that a criminal proceeding has miscarried at multiple levels.
  • Insufficient care taken in both the Local Court and the District Court contributed to the miscarriage identified in this case.
  • Where a guilty plea has been entered to a particular offence, any subsequent conviction and sentence must correspond to that plea; a mismatch between the plea and the offence of conviction is a fundamental error.
  • Upon quashing the conviction, the Court remitted the matter to resume from the point at which the guilty plea was originally entered, rather than ordering a fresh trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33 and 35

Cases cited: None identified in the provided text or metadata.