Ozan v R [2021] NSWCCA 231

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ozan v R [2021] NSWCCA 231 Hearing dates: 9 July 2021 Decision date: 29 September 2021 Before: McCallum JA at [1]; Rothman J at [2]; Ierace J at [21] Decision: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court. In lieu, sentence the applicant to an aggregate term of imprisonment of 4 years commencing on 25 February 2021 and expiring on 24 February 2025, with a non-parole period of 1 year, expiring on 24 February 2022. Catchwords: CRIME – Appeals – Appeal against sentence – Where applicant sentenced in New South Wales for supply prohibited drug and recklessly deal with proceeds of crime – Where applicant was serving lengthy sentence in Western Australia for supply and attempted supply of prohibited drug – Where Sentencing Act 1995 (WA) mandated an unusually high ratio of the non-parole period to the total sentence – Where the sentencing judge partially accumulated the non-parole period resulting in an increase by 6 months – Where the applicant had made good rehabilitative progress in prison – Whether the sentencing judge erred in partially accumulating the non-parole period in circumstances in which the statutory ratio had already been exceeded and the applicant had made good rehabilitative progress – Principle of totality – Application of Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Legislation Cited: Crimes Act 1900 (NSW), s 193B Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44, Pt 4, Div 1A Drug Misuse and Trafficking Act 1985 (NSW), s 25 Misuse of Drugs Act 1981 (WA), ss 6, 33 Sentencing Act 1995 (WA), s 93 Cases Cited: Arnold v R [2011] NSWCCA 150 Attorney-General v Tichy (1982) 30 SASR 84 Dunn v R [2007] NSWCCA 312 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v R [2010] NSWCCA 162 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Ozan v The State of Western Australia [2013] WASCA 27 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Ibrahim [2005] NSWCCA 43 R v LWP [2003] NSWCCA 215 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Todd [1982] 2 NSWLR 517 Warwick v R [2016] NSWCCA 183 Category: Principal judgment Parties: Yavuz Ozan (Applicant) Regina Representation: Counsel: In person (Applicant) E Wilkins SC (Respondent)