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Court of Criminal Appeal 7 December 2018

Kocyigit v R

[2018] NSWCCA 279

Assault & violenceTheft & property
CRIMINAL LAW OFFENCES SENTENCE APPEAL ROBBERY INFLICTING ACTUAL BODILY HARM WHERE APPLICANT AND CO

Citation: Kocyigit v R [2018] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judge(s): Hoeben CJ at CL, Bellew J, Campbell J

Background

The applicant pleaded guilty in the Local Court to robbery inflicting actual bodily harm, contrary to s 95(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence occurred in the early hours of 7 February 2017 in Auburn, when the applicant and a co-offender approached a lone pedestrian on a suburban street. The applicant had suggested the robbery beforehand, wanting money for his brother's rent, and the two had agreed on their respective roles before leaving the applicant's home.

The co-offender punched the victim multiple times to the head and face while the applicant attempted to seize the victim's mobile phone. The attack continued after the victim fell to the ground and called for help. The victim sustained serious injuries including a comminuted nasal fracture, subcutaneous emphysema, gas locules in both orbital spaces, and extensive bruising and abrasions to his face.

In the District Court, Judge Herbert sentenced the applicant to a non-parole period of 1 year and 7 months, with an additional term of 1 year, for a total sentence of 2 years and 7 months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentencing judge gave appropriate weight to the applicant's subjective case, including his mental state and youth
  • Whether the sentence was manifestly excessive having regard to the objective seriousness of the offending
  • Whether sentencing statistics supported a conclusion that the sentence fell outside the proper range

Decision

The Court of Criminal Appeal unanimously dismissed the application for leave to appeal, with Bellew J delivering the leading judgment and Hoeben CJ at CL and Campbell J agreeing.

The Court accepted the sentencing judge's finding that the offending fell at the mid-range of objective seriousness. The offence was planned, committed in company, and involved sustained violence against a defenceless victim in a public street. The injuries sustained were relatively serious. General deterrence was a relevant consideration, though the sentencing judge had appropriately given it lesser weight in light of the applicant's psychological condition.

On the question of manifest excess, Bellew J held that the applicant's submissions amounted largely to a complaint that insufficient weight had been given to his subjective case. The Court confirmed that matters of weight are within the province of the sentencing judge, and that appellate intervention on this basis is narrowly confined. A strong subjective case cannot be permitted to produce a sentence disproportionate to the seriousness of the offending.

The Court reinforced that sentencing statistics did not support a conclusion of manifest excess. The sentence was within the proper range of sentencing discretion, and the applicant had not demonstrated that it was unreasonable or plainly unjust as required by Dinsdale v R.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • To establish manifest excess on appeal, an applicant must demonstrate the sentence was unreasonable or plainly unjust, as confirmed in Dinsdale v R (2000) 202 CLR 321; a submission that the sentencing judge gave insufficient weight to subjective matters will not, of itself, satisfy that threshold.
  • The Court of Criminal Appeal reaffirmed that matters of weight in sentencing are the province of the sentencing judge, and the circumstances in which those matters justify appellate intervention are narrowly confined.
  • A compelling subjective case, including mental health considerations and youth, cannot produce a sentence that is disproportionate to the objective seriousness of the offending.
  • Offences of violent robbery committed in company, by prior agreement, against a defenceless member of the public in a public place attract significant weight on general deterrence grounds, even where that factor may be moderated by an offender's psychological condition.
  • The Court of Criminal Appeal again affirmed the principle, repeated across multiple decisions, that members of the public have a fundamental right to go about their business without fear of violent attack, and that stern sentences follow when that right is violated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (robbery inflicting actual bodily harm)

Cases
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Vaiusu v R [2017] NSWCCA 71
- Zhao v R [2016] NSWCCA 179
- Vaeila v R [2010] NSWCCA 113
- R v Woods [1990] NSWCCA (9 October 1990, unreported)
- R v Tuuta [2014] NSWCCA 40
- Mansour v R; Hughes v R [2013] NSWCCA 35
- Alkanaan v R [2017] NSWCCA 56
- Azzi v R [2008] NSWCCA 169
- Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v R; Jones v R [2010] HCA 45
- JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- McDonald v R [2015] NSWCCA 280
- R v Henry (1999) 46 NSWLR 346