PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274

New South Wales Court of Criminal Appeal

CITATION: PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 March 2007

JUDGMENT DATE: 12 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 4; Hoeben J at 198

DECISION: See paragraph 199

Regina PARTIES: Christovalantis PAPADOPOULOS Bulent TOPCU

FILE NUMBER(S): CCA 2006/5461; 2006/4824

Crown: Mr D Arnott SC COUNSEL: Applicant Papadopoulos: Mr H Dhanji Applicant Topcu: Mr B Walker SC with Ms G Bashir

SOLICITORS: Crown: S Kavanagh Applicants: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0577

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

- 62 - IN THE COURT OF CRIMINAL APPEAL 2006/5461 2006/4824

McCLELLAN CJ AT CL HULME J HOEBEN J

Wednesday, 12 September 2007 PAPADOPOULOS, Christovalantis v R TOPCU, Bulent v R

Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hulme J in these appeals. But for one matter I agree with the orders which his Honour proposes and with his Honour's reasons. 2 In relation to the sentence which his Honour proposes for the offence involving vaginal intercourse committed by Papadopoulos I would have imposed a non-parole period of three years commencing on 17 December 2006 with a balance of term of 18 months. In my opinion, notwithstanding the fact that both Topcu and Papadopoulos became caught up in events for which they were not initially responsible, the circumstances of this offence require a sentence which adequately marks its seriousness. Although Papadopoulos, no doubt, reacted to the violent and destructive actions of Eken the act of intercourse took place in the bedroom in circumstances where I am satisfied he had a real choice as to whether or not to penetrate the complainant. Hulme J discusses the available Judicial Commission statistics in relation to the relevant offence in [191] of his judgment. The statistics do not reveal the factual circumstances of each case and whether or not vaginal intercourse occurred. However, the sentence which I propose would not be out of line with the range of sentences revealed by the Commission's statistics. 3 The primary judge sentenced Papadopoulos to a term of 7 years and 4 months with a non-parole period of 5½ years for this offence. His Honour had the benefit of hearing the evidence and observing the relevant witnesses. This gave his Honour the advantage of being able to appreciate the atmosphere in which the offence occurred which no doubt influenced his Honour's sentence. 4 HULME J: On 16 January 2006 Bulent Topcu was arraigned on charges that:- 1A. While in company with CD (he) did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her. 1B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting. 5 On the same occasion Chris Ovalantis Papadopoulos was arraigned on charges:- 2A. While in company with CD (he) did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her. 2B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of the said CD (sic), knowing that she was not consenting. 3A. While in company with CD (he) did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting and immediately before the time of the sexual intercourse did maliciously inflict actual bodily harm on her. 3B. In the alternative… while in company with CD did have sexual intercourse with AB, without the consent of the said AB, knowing that she was not consenting. 6 On 6 February 2006 the jury returned with the following verdicts: 1. Guilty to the first charge against Topcu. (Count 1A) 2. Not guilty to the second charge in the indictment against Papadopoulos. (Count 2A) 3. Guilty to the alternative charge against Papadopoulos. (Count 2B) 4. Not guilty to the third charge against Papadopoulos. (Count 3A) 5. Guilty to the alternative charge against Papadopoulos. (Count 3B) 7 In the indictment only the first of each pair of charges was numbered and the addition of the "A's" and "B's" is mine in order to facilitate reference later in these reasons. The information in parenthesis in the immediately preceding paragraph is my understanding of the charges to which the jury verdicts relate. 8 On 27 April 2006 Judge Puckeridge sentenced Topcu to imprisonment for 10 years, including a non-parole period of 7 years, commencing on 6 February 2006. His Honour sentenced Papadopoulos on count 2B to imprisonment for 6 years, including a non-parole period of 4½ years, commencing on 30 March 2006 and on count 3B, to imprisonment for 7 years and 4 months, including a non-parole period of 5½ years, commencing on 30 June 2006. (In so stating the sentences, I have ignored, in the case of Topcu 14 days, and in the case of Papadopoulos 13 days, pre-sentence custody which led his Honour to vary the end dates of the sentences and which do not affect the substance of the sentences stated.) 9 Topcu has appealed against his conviction upon the following grounds:- 1. As the case relied on by the prosecutor to prove the s.61JA count could never satisfy the elements of that offence, the trial judge erred in failing to direct a verdict of acquittal on the s.61JA count. 2. The trial miscarried as a result of the element of malicious infliction of actual bodily harm being left to the jury on a basis not run at trial. 3. The trial judge erred in not directing the jury that duress on the appellant could be based on his fear of AB being at risk of being injured as well as his fears for himself. 4. The trial judge erred in failing to direct the jury that "the third question" was one of whether the appellant could have withdrawn without risk of harm to himself and/or AB either remaining or being increased. 5. The trial miscarried as a result of the jury being told by the prosecutor that all of the elements of the offence had been proved and the trial judge not correcting this. 6. The verdict is unreasonable. 10 During the hearing of the appeal, Topcu sought leave to add a further ground of appeal against conviction and 2 further grounds of appeal against sentence and the Court heard argument on these although, it would seem without formally giving leave or an extension of time. The further ground of appeal against conviction was:-