Canan EKEN v R [2007] NSWCCA 320

Canan EKEN v R [2007] NSWCCA 320

The original sentences were manifestly excessive both individually and in their totality. The applicant did not establish on the evidence that any psychosis causally influenced his criminal conduct so as to diminish culpability or require mitigation of general or specific deterrence. Hardship to the applicant's family was not exceptional. The Court allowed the appeal, quashed the District Court sentences, and re-sentenced the applicant to an aggregate of 14 years and 3 months' imprisonment with a non-parole period of 10 years and 3 months, having regard to proper relativity with sentences imposed on co-offenders, the nature and seriousness of the offences, the applicant's pleas, and...

Parties
Applicant: Canan Eken; Respondent: Regina
Jurisdiction
Australia
Judgment Date
13 December 2007
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced.
Legal Topics
Appeal Against Sentence, Aggravated Sexual Assault, Assault Occasioning Actual Bodily Harm, Common Assault, Mental Illness and Sentencing, Family Hardship and Sentencing, Manifestly Excessive Sentence
Criminal Law Appeal Against Sentence Aggravated Sexual Assault Assault Occasioning Actual Bodily Harm Common Assault Mental Illness and Sentencing Family Hardship and Sentencing Manifestly Excessive Sentence

Case Brief

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Parties

Canan Eken

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether the applicant's sentence was manifestly excessive
  2. 2 Whether the applicant's mental illness or intoxication reduced his moral culpability or should affect sentence
  3. 3 Whether hardship to the applicant's family justified reduction in sentence

Ratio Decidendi

The original sentences were manifestly excessive both individually and in their totality. The applicant did not establish on the evidence that any psychosis causally influenced his criminal conduct so as to diminish culpability or require mitigation of general or specific deterrence. Hardship to the applicant's family was not exceptional. The Court allowed the appeal, quashed the District Court sentences, and re-sentenced the applicant to an aggregate of 14 years and 3 months' imprisonment with a non-parole period of 10 years and 3 months, having regard to proper relativity with sentences imposed on co-offenders, the nature and seriousness of the offences, the applicant's pleas, and...

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced.

Orders

  • On the first count, imprisonment for a fixed term of 2.5 years, commencing 30 July 2004 and expiring 29 January 2007.
  • On the third count, fixed term of imprisonment for 9 months, commencing 30 October 2004 and expiring 29 July 2005.