Citation: R v Halacoglu [2019] NSWDC 384
Court: District Court of New South Wales
Date: 7 May 2019
Judge: M L Williams SC DCJ
Background
The offender, born in 1984, had come to Australia in 2010 on a student visa sponsored by the victim, with whom he was in a relationship. By early 2016, the relationship had deteriorated after the victim began seeing someone else. The offender had been living with the victim and her two children from a previous relationship.
On 14 July 2016, the parties exchanged a series of text messages during which the offender sent a message in Turkish that translated as: "If I'm not going to live, you are not going to live either." The exchange continued for approximately two hours. The victim reported feeling threatened and police subsequently interviewed the offender, who acknowledged sending the words but disputed their meaning.
The offender was charged with this and other more serious offences. On the day his trial was due to commence, he entered a guilty plea to one count of using a carriage service to menace, contrary to s 474(17)(1) of the Criminal Code (Cth). The Crown did not oppose an outcome under s 19B of the Crimes Act 1914 (Cth), which allows a court to dismiss a charge without proceeding to conviction in appropriate circumstances.
Legal Issues
- Whether the offence was at the low end of the scale of objective seriousness
- Whether the offender's character, antecedents, and conduct on bail made him suitable for disposal under s 19B of the Crimes Act 1914 (Cth), resulting in a finding that the offence was proved but dismissal of the charge without conviction
Decision
The District Court found the offence to be at the very low end of the objective seriousness scale. The text message, while menacing in translation, arose in the context of a relationship breakdown and the offender contested the intended meaning of the words used.
The court considered the offender's subjective circumstances: he had no prior criminal record, had entered a guilty plea on the first day of trial, and had remained on bail with strict conditions for almost three years without reoffending. A friend's testimonial and earlier documentation from the victim herself described what had previously been a positive relationship.
His Honour noted that the offender's immigration status (he was on a bridging visa after his student visa had expired) was irrelevant to the sentencing exercise, consistent with established authority. Taking into account the low objective seriousness of the offence and the offender's good character and antecedents, the court concluded that s 19B of the Crimes Act 1914 (Cth) was the appropriate vehicle for disposal.
Orders Made
- The offence was found proved.
- Without proceeding to conviction, the charge was dismissed pursuant to s 19B(1)(c) of the Crimes Act 1914 (Cth).
Key Takeaways
- The District Court applied s 19B of the Crimes Act 1914 (Cth) to dismiss a Commonwealth charge without recording a conviction, finding the provision appropriate where the offence was at the lowest end of seriousness and the offender demonstrated good character and a clean record.
- A guilty plea entered on the first day of trial, combined with an extended period on bail without reoffending, were treated as significant mitigating factors weighing in favour of a non-conviction outcome.
- Under established sentencing principles applied here, an offender's immigration status and the potential visa consequences of a conviction are not relevant considerations on sentence.
- Where the Crown does not oppose a s 19B outcome, the court retains its own discretion and must still be independently satisfied that the offender's character, antecedents, and the nature of the offence justify that course.
- A single threatening text message sent during a relationship breakdown, while sufficient to found a charge under s 474(17)(1) of the Criminal Code (Cth), was assessed here as occupying the lowest range of objective seriousness for that offence.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 474(17)(1) (using a carriage service to menace; maximum penalty three years imprisonment)
- Crimes Act 1914 (Cth), s 19B (dismissal of charge and discharge of offender without conviction)
Cases
- No cases were cited in the judgment.