Oncu v R [2020] NSWCCA 260

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Oncu v R [2020] NSWCCA 260 Hearing dates: 13 July 2020, supplementary written submissions received 26 August 2020 Date of orders: 07 October 2020 Decision date: 07 October 2020 Before: Price J at [1]; Garling J at [2]; Wright J at [3] Decision: (1) The time for filing the notice of application for leave to appeal is extended to 10 February 2020. (2) The applicant has leave to rely on the further ground of appeal identified in his supplementary submissions dated 17 August 2020. (3) The applicant has leave to appeal against sentence. (4) The appeal against sentence is allowed. (5) The aggregate sentence imposed by the District Court on 27 April 2018 is quashed. (6) The applicant is sentenced to imprisonment as follows:

(a) In respect of count 1, a non-parole period of 5 years commencing on 30 January 2018 expiring on 29 January 2023 with the balance of the term being 3 years expiring on 29 January 2026.

(b) In respect of count 2, taking into account the offence on the Form 1, a non-parole period of 1 year 6 months commencing on 30 January 2017 and expiring on 29 July 2018 with the balance of the term being 1 year and 6 months expiring on 29 January 2020. Catchwords: CRIMINAL LAW – Sentencing – Appeal against sentence – Incorrect standard non-parole period referred to in sentencing – Error established – Applicant required to be resentenced – Lesser sentenced warranted in law in the circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Cases Cited: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Greentree v R [2018] NSWCCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kliendienst v R [2020] NSWCCA 98 Maxwell v R [2020] NSWCCA 94 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163 R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee [2018] NSWDC 106 Vaughan v R [2020] NSWCCA 3 Category: Principal judgment Parties: Emrah Oncu (Applicant) Regina (Crown) Representation: Counsel: P Lange (Applicant) B Baker (Crown)