Regina v Yucel [2000] NSWCCA 532

New South Wales Court of Criminal Appeal

CITATION : Regina v Yucel [2000] NSWCCA 532 FILE NUMBER(S) : CCA 60517/00 HEARING DATE(S) : 04/12/00 JUDGMENT DATE : 13 December 2000

PARTIES : Regina v Savas Yucel JUDGMENT OF : Meagher JA at 1; Hidden J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0234 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : (Crown): P G Berman SC (Respondent): P G Hogan SOLICITORS : (Crown): S E O'Connor (Respondent): John B Hajje & Associates CATCHWORDS : Sentencing - Crown Appeal against inadequacy - sentencing judge imposed non-parole period of 6.25% of overall term - delay of 6 months in hearing of appeal - Appeal upheld but in view of delay respondent re-sentenced to periodic detention. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Bugmy v The Queen (1990) 169 CLR 525 R v Behar (CCA, unreported, 14 October 1998) DECISION : See paragraph 27

IN THE COURT OF CRIMINAL APPEAL 60517/00

MEAGHER JA HIDDEN J CARRUTHERS AJ Wednesday, 13 December 2000 REGINA v Savas YUCEL

JUDGMENT 1 MEAGHER JA: I reluctantly agree with Carruthers AJ. I say "reluctantly" because it seems to me a much heavier sentence was warranted. 2 HIDDEN J: I agree with Carruthers AJ.

3 CARRUTHERS AJ: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent Savas Yucel at the Sydney District Court on 23 June 2000, when the respondent appeared for sentence on one count of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900, which provides a maximum penalty of twenty years imprisonment. 4 The respondent (who had earlier pleaded guilty to this offence) was sentenced by his Honour Judge Mahoney to imprisonment for four years to commence on 21 March 2000 and to expire on 20 March 2004. A non-parole period of three months and two days was imposed to commence on 21 March 2000 and to expire on 22 June 2000. 5 The respondent had in fact been in custody since 21 March 2000 and accordingly the effect of the sentence was that he became eligible to apply for parole on 23 June 2000. Parole was in fact granted and the respondent has been at liberty since 23 June 2000. 6 The notice of appeal was signed on 9 August 2000 and served on the respondent on 11 August 2000. 7 The respondent was born on 10 December 1979. He had a disturbed childhood. He was born in Australia to Turkish parents but effectively lived until the age of eight in Turkey. However, most of his life has been lived in Australia. 8 He was dealt with in the Children's Court on four occasions for various offences, none of which attracted a period of detention. 9 Objectively, the subject offence was a serious one, as is clear from the Facts Sheet which was tendered by consent before his Honour: "The defendant participated in an electronic recorded interview and made full admissions. The defendant stated he decided to commit the offence today as he was walking home from work. He stated he was in need of cash, he then went to a friends place and obtained the kitchen knife in which he states he intended to use to scare the staff of the store. The defendant further stated that he asked a friend to come with him as there were two persons working in the store today. The defendant refused to divulge the identity of this person. The defendant and the second person attended the Tandy Electronic Store. The defendant approached the store manager (victim 1) and walked behind the front counter where the cash register is located. The defendant was holding a knife pointing outwards at waist level towards victim 1. The defendant said, 'Come on, it's a holdup, come on, quick, go out the back room.' The defendant was pointing the knife at victim 1 and motioned him to the back room. Victim 2 who was standing nearby walked with victim 1 to the rear store room. The defendant directed the victims to sit in the corner of the room. Victim 2 complied whilst victim 1 remained standing. A second male person became involved and stood in the room. The defendant asked, 'Where's the safe?' Victim 1 replied, 'We don't have a safe anywhere.' The defendant said to the other male, 'Keep an eye on them.' This male stood near the doorway but didn't say anything. The defendant went to the front of the store and attempted to open the cash register however his attempt failed. The defendant returned to the rear store room and got victim 1 to open the cash register. As victim 1 was walking to the cash register the defendant said, 'Don't try anything, I'll stab you.' Victim 1 opened the cash register. The defendant and victim 1 returned to the store room. The defendant left the room and shut the door, the defendant went to the cash register and obtained cash, coins and mobile cards from the till. The defendant returned to the store room and asked victim 1 where the mobile phones were. Victim 1 obtained a number of mobile phones in boxes and placed them into his sports bag. The defendant and the second male left the store. Victim 1 waited for about 30 seconds and opened the store room door and saw that the offenders had left. Victim 1 contacted "000", Police attended shortly thereafter. LOCATED PROPERTY $556.50 - Australian currency. 3 x Motorola Mobile Phones (model # V2088) 1 x Ericsson Mobile Phone (GA 628). 1 x Motorola Express Mobile Phone 2 x Motorola M30 Mobile Phone 12 x Optus Express Prepaid Mobile Start Up Kits 16 x $30 Optus Express Recharge Cards 2 x $10 Optus Express Recharge Cards 2 x $50 Optus Prepaid Cable & Wireless Phone Express Cards 2 x $20 Optus Prepaid Cable & Wireless Phone Express Cards. TOTAL VALUE: $2926.50"