Yildiz v R [2020] NSWCCA 69

Yildiz v R [2020] NSWCCA 69

The sentence was affected by material error because the sentencing judge treated youth as already built into the Henry guideline without meaningfully assessing the applicant's relative youth and immaturity, made a finding about expected violence that was not open on and was inconsistent with the Agreed Facts, and rejected genuine remorse on the basis of an incomplete answer without regard to the whole of the evidence. Those errors affected the assessment of objective seriousness and subjective mitigation. The appeal was therefore allowed and the applicant was resentenced to a head sentence of 28 months with a non-parole period of 14 months, after allowing a 25% discount for the early...

Jurisdiction
Australia
Judgment Date
09 April 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.
Legal Topics
['robbery in Company' 'joint Criminal Enterprise' 'youthful Offender' 'guideline Judgment' 'remorse' 'objective Seriousness' 'parity Principle' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['robbery in Company' 'joint Criminal Enterprise' 'youthful Offender' 'guideline Judgment' 'remorse' 'objective Seriousness' 'parity Principle' 'resentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to give meaningful consideration to the applicant's youth and relative immaturity when applying R v Henry (1999) 46 NSWLR 346; [1999] NSWCA 111." 'Whether the sentencing judge erred in finding that the applicant was aware that violence was at least on the cards, contrary to the Agreed Facts.' "Whether the sentencing judge erred in rejecting the applicant's genuine remorse based on an incomplete and interrupted answer." 'Whether the sentence was manifestly excessive.' 'What sentence should be imposed on resentencing, including consideration of parity with co-offender ADP.']

Ratio Decidendi

The sentence was affected by material error because the sentencing judge treated youth as already built into the Henry guideline without meaningfully assessing the applicant's relative youth and immaturity, made a finding about expected violence that was not open on and was inconsistent with the Agreed Facts, and rejected genuine remorse on the basis of an incomplete answer without regard to the whole of the evidence. Those errors affected the assessment of objective seriousness and subjective mitigation. The appeal was therefore allowed and the applicant was resentenced to a head sentence of 28 months with a non-parole period of 14 months, after allowing a 25% discount for the early...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The sentence imposed by the District Court on 10 July 2019 on the applicant is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 14 months, commencing on 10 February 2019 and expiring on 9 April 2020, with the remainder of term of a...