Elturk v R [2014] NSWCCA 61

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elturk v R [2014] NSWCCA 61 Hearing dates: 4 March 2014 Decision date: 17 April 2014 Before: Beazley P at [1]; R A Hulme J at [49]; Schmidt J at [50] Decision: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court on 5 October 2012 is quashed. 4. The applicant is sentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of the term of the sentence of 3 years. The sentence is to date from 3 January 2011. The earliest day the applicant will be eligible for release on parole is 2 July 2014. The total term expires on 2 July 2017. Catchwords: CRIMINAL LAW - sentence - objective seriousness of offence - moral culpability - mentally ill offender - where defence of mental illness not relied upon

CRIMINAL LAW - sentence - purpose of sentence - proportionality - mentally ill offender

CRIMINAL LAW - sentence - purpose of sentence - protection of community - mentally ill offender Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Bugmy v The Queen [1990] HCA 18 McLaren v Regina [2012] NSWCCA 284 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Muldrock v The Queen [2012] NSWCCA 108 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Engert (1995) 84 A Crim R 67 The Queen v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported) Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: John Elturk (Applicant) Regina (Respondent) Representation: Counsel: R Mathur (Applicant) R Herps (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2011/1234 Decision under appeal Jurisdiction: 9101 Citation: R v John Elturk Date of Decision: 2012-10-05 00:00:00 Before: Nicholson DCJ File Number(s): 2011/1234