Ocek v R [2023] NSWCCA 308

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ocek v R [2023] NSWCCA 308 Hearing dates: 7 July 2023 Date of orders: 6 December 2023 Decision date: 06 December 2023 Before: Ward P at [1]; Stern JA at [2]; N Adams J at [3]. Decision: 1. An extension of time to bring this appeal is granted. 2. Leave to bring this appeal is granted. 3. The appeal is dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge's discretion CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant's knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant's lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), s 12C Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW), ss 66C(1)(3), 66EA (1), 66EB(2), 61J(1), 249K(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, s 53A Criminal Appeal Act 1912 (NSW), s 6(1) Mutual Assistance in Criminal Matters Act 1987 (Cth) Cases Cited: AB v R [2014] NSWCCA 339 Ahmu v R [2014] NSWCCA 312 Azzopardi v R [2019] NSWCCA 306 Benn v R [2023] NSWCCA 24 Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 Clarke v R [2015] NSWCCA 232 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Elchiekh v R [2016] NSWCCA 225 Hitchen v R [2010] NSWCCA 77 Hordern v R [2019] NSWCCA 138 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Kees Langelaar v R [2016] NSWCCA 143 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Matthews v R [2013] NSWCCA 187 Melville v R [2023] NSWCCA 284 Merheb v R [2021] NSWCCA 224 Newman (a pseudonym) v R [2019] NSWCCA 157 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Ocek v R [2009] NSWCCA 42 R v Barbros Ocek [2018] NSWDC 349 R v O'Donoghue (1988) 34 A Crim R 397 R v Wright [2017] NSWCCA 102 Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 Tsiakas v R [2015] NSWCCA 187 Vella v R [2015] NSWCCA 148 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Barbaros Ocek (Applicant) Crown (Respondent) Representation: Counsel: Self (Applicant) M England and M Swift (Respondent)