Regina v Ilbay [2000] NSWCCA 251

New South Wales Court of Criminal Appeal

CITATION : Regina v Ilbay [2000] NSWCCA 251 FILE NUMBER(S) : CCA 60084/99 HEARING DATE(S) : Wednesday 21 June 2000 JUDGMENT DATE : 21 June 2000

PARTIES : Regina v Osman Ilbay JUDGMENT OF : Grove J at 1; Newman J at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0229; 97/21/0230 LOWER COURT JUDICIAL Grogan DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) R.J. Button (Applicant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Co-offender - Parity - Discrimination in Overall Criminality - Different Multiple Offences - No Special Matter of Principle DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60084/99

GROVE J NEWMAN J

Wednesday 21 June 2000

REGINA v OSMAN ILBAY

JUDGMENT

1 GROVE J : This is an application for leave to appeal against severity of sentence imposed by Grogan DCJ in the District Court in Parramatta on 26 February 1999. On that occasion, the applicant was sentenced in respect of an offence that on 22 August 1984 at Dulwich Hill he supplied a quantity of the drug commonly referred to as heroin. 2 His Honour took into account on a Form 1 under the Criminal Procedure Act, five further offences of supply of that drug. The sentence imposed by his Honour was a minimum term of imprisonment of two years and six months with an additional term of one year. 3 The plea of guilty offered by the applicant to the indicted charge was offered after a voir dire hearing which had extended over the previous days. The plea was, in fact, offered on 11 November 1998. 4 It should be observed that the delay arose out of the circumstance that the applicant had, after being charged, absconded from Australia. He returned to Australia voluntarily many years later. 5 This application is centrally based upon an assertion that the applicant can have a justifiable sense of grievance arising out of the sentence which he received from Grogan DCJ when compared with that imposed upon a co-offender Zeki Oygur, who was dealt with by Madgwick DCJ (as he then was) on 17 December 1987. 6 The principles to be applied where an argument asserting disparity is raised are not in doubt. What needs to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved but that a reasonable man looking overall at what has happened will see that the offender's grievance is justified. See R v Doggett CCA 24 March 1997 per Sully and Newman JJ. 7 At the time that the applicant appeared for sentence before Grogan DCJ the remarks of Madgwick DCJ made in connection with the sentencing of Oygur as long ago as 1987 were not available. They have since become available and it has been common ground that they may be referred to in this hearing. 8 The initial question to be determined is whether or not sentences imposed on the co-offender were in fact matters which can be used for genuine comparison and subsidiary to that whether therefore, they can give rise to a sense of grievance which is justifiable. It is necessary to look at the proceedings in the earlier case. 9 Oygur appeared for sentence before Madgwick DCJ not only in respect of an offence of supplying heroin which was co-ordinate with the offence of the present applicant, but also in respect of a conspiracy to import a drug into this country. That charge was brought against Oygur pursuant to Commonwealth legislation. The prisoner Oygur had pleaded not guilty to what might conveniently be described as the State offence but was convicted, and he pleaded guilty to the matter charged under Federal legislation. 10 His Honour's remarks show that he was concerned with the overlap of jurisdiction. When he came to sentence Oygur in respect of the State matter he made this remark: