Tuncbilek v R [2020] NSWCCA 30

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tuncbilek v R [2020] NSWCCA 30 Hearing dates: 24 February 2020 Date of orders: 04 March 2020 Decision date: 04 March 2020 Before: Meagher JA at [1] Johnson J at [2] Hamill J at [90] Decision: 1. Time for the Applicant to seek leave to appeal against sentence extended to 29 November 2019. 2. Grant the Applicant leave to appeal against sentence. 3. Appeal against sentence imposed on 13 August 2018 is allowed and the sentence is quashed. 4. For the offence of assault with intent to rob whilst armed with an offensive weapon, the Applicant is sentenced to imprisonment for three years comprising a non-parole period of two years and three months commencing on 24 December 2017 and expiring on 23 March 2020, with a balance of term of nine months commencing on 24 March 2020 and expiring on 23 December 2020. 5. The Applicant will be entitled to release on parole on 24 March 2020. Catchwords: APPEAL – application to seek leave to appeal against sentence – offence of assault with intent to rob whilst armed with an offensive weapon – applicant threatened service station attendant with butter knife and demanded money and then asked victim to call police – whether error in assessment of objective seriousness of the offence – where applicant had a mental illness and his motivation was to be arrested – where sentencing Judge delivered ex tempore remarks on sentence – where no conclusion expressed with regard to objective seriousness and no reference to moral culpability – error established – whether error in failure to consider the role of the applicant's mental health – error established – whether new evidence of DVD depicting the offence was admissible on appeal in light of Crown concession clarifying ambiguous factual issue - DVD not admitted – lesser sentence warranted – applicant resentenced Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Aslan v R [2014] NSWCCA 114 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Vic) v Arvanitidis (2008) 202 A Crim R 300; [2008] VSCA 189 Hazell v R [2015] NSWCCA 26 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 Mulato v R [2016] NSWCCA 2 R v Gagalowicz [2005] NSWCCA 452 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Texts Cited: --- Category: Principal judgment Parties: Engin Tuncbilek (Applicant) Regina (Respondent) Representation: Counsel: Mr A Evers (Applicant) Ms M Millward (Respondent)