NSWNSWSC

R v Batak

[2026] NSWSC 595

Supreme Court of NSW|2026-05-29|Before: Sweeney J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-29

Before

Sweeney J

Catchwords

SENTENCING — Sentence after re-trial — Constructive murder — Relevant factors on sentence — Victim impact statement — Hardship to family members — Delay — Quasi-custody — Where the offender has achieved substantial rehabilitation and maturation and is unlikely to reoffend — Whether the offender is at a “cross-roads” — Whether the ceiling principle applies — Parity with co-offender — Facilitation of the administration of justice

Source

Original judgment source is linked above.

Catchwords

SENTENCING — Sentence after re-trial — Constructive murder — Relevant factors on sentence — Victim impact statement — Hardship to family members — Delay — Quasi-custody — Where the offender has achieved substantial rehabilitation and maturation and is unlikely to reoffend — Whether the offender is at a “cross-roads” — Whether the ceiling principle applies — Parity with co-offender — Facilitation of the administration of justice

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v Batak [2026] NSWSC 595

Hearing dates: 8 May 2026

Date of orders: 29 May 2026

Decision date: 29 May 2026

Jurisdiction: Common Law

Before: Sweeney J

Decision: Sentence of 12 years imprisonment with a non-parole period of 9 years, to date from 29 August 2020.

Catchwords: SENTENCING — Sentence after re-trial — Constructive murder — Relevant factors on sentence — Victim impact statement — Hardship to family members — Delay — Quasi-custody — Where the offender has achieved substantial rehabilitation and maturation and is unlikely to reoffend — Whether the offender is at a “cross-roads” — Whether the ceiling principle applies — Parity with co-offender — Facilitation of the administration of justice

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30E(1),(3)

Cases Cited: Armstrong v R [2015] NSWCCA 273
Dukagjini v R [2023] NSWCCA 210
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Gilmore (1979) 1 A Crim R 416
R v Halloun [2014] NSWSC 1705
R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452
R v JB [1999] NSWCCA 93
R v Mills NSWCCA 3 April 1995
R v Osenkowski (1982) 5 A Crim R 394 R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253 R v Stanley [2025] NSWSC 735 R v Todd [1982] 2 NSWLR 517 Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425

R v Batak [2026] NSWSC 595 | Case summary | Zoe

Mr Batak was arrested and charged on 21 August 2019, and remained in custody from then until 19 December 2024, when he was granted bail by Rigg J, in circumstances which I will come to.
His first trial commenced on 6 April 2022. The charges were accessory before the fact to constructive murder and accessory before the fact to attempted armed robbery. On 8 April, the jury was discharged, two jurors having already been discharged early in the trial.
Mr Batak’s second trial commenced on 19 April 2022. On 19 May 2022 the jury returned guilty verdicts in respect of both offences.
On 16 September 2022 Mr Batak was sentenced by R A Hulme J, the trial judge.
Mr Batak appealed to the Court of Criminal Appeal in respect of his convictions. The Court of Criminal Appeal heard that appeal on 4 December 2023, and delivered judgment on 10 May 2024. The Court quashed Mr Batak’s conviction on the murder related offence and ordered a new trial for that offence, deciding that liability as an accessory before the fact cannot work coherently with liability for constructive murder, and that it was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability.
Mr Batak’s retrial was listed for February 2025. That trial date was vacated because of proceedings in the High Court commenced on 7 June 2024 when the Director of Public Prosecutions (‘DPP’) sought special leave to appeal against the decision of the Court of Criminal Appeal. The High Court granted special leave to the Crown on 7 November 2024. Mr Batak filed his own application for special leave on 5 November 2024 but he was refused special leave.
Mr Batak was granted bail by Rigg J on 19 December 2024.
On 8 April 2025 the High Court commenced hearing the Crown's appeal and by majority revoked the Crown's special leave that day.
In June 2025 Yehia J ordered that Mr Batak’s trial should proceed by judge alone.
That trial commenced on 1 December 2025, the start delayed by Mr Batak’s solicitor’s involvement in another trial. The trial finished in February 2026, after a break during the Christmas court vacation.
On 27 February 2026, after Mr Batak was found guilty, his bail was revoked and he was returned to custody, where he has remained since.

The factual findings are contained in my verdict judgment (R v Batak [2026] NSWSC 3) and I will not repeat all of them.
Mr Batak was found guilty of the constructive murder of John Odisho on the basis that he agreed with Cengiz Coskun to rob two people in an apartment proposed by Mr Coskun who were, on Mr Coskun’s account, involved in supplying drugs. That agreement was formed when Mr Coskun visited Mr Batak at his home around 12:30 - 1 AM on 2 April 2019. During that visit, on Mr Batak’s recorded statements, Mr Coskun told Mr Batak that they would enter the apartment by way of a balcony and open door, and be "in and out nice and quick" because the two occupants of the flat were "smacking out", "shooting up" and "just crashing". Mr Batak agreed to participate in the robbery because he needed money.
Pursuant to the agreement with Mr Coskun, Mr Batak gave Mr Coskun a loaded Glock pistol, described by Mr Batak as a “mini Glock” with an “extended clip”, that is, on the evidence, at least a 10 shot magazine, for use in the robbery. Mr Batak also gave Mr Coskun two high visibility work shirts, at Mr Coskun’s request. Mr Coskun wore such a shirt during the attempted armed robbery which subsequently occurred.
Mr Batak, having agreed and prepared to accompany Mr Coskun in the robbery, was struck by an urgent need to go to the toilet, and did not accompany Mr Coskun, who arranged for another person to accompany him while at Mr Batak’s home and in his presence. Mr Batak did not, however, withdraw from the agreement, and did not ask for the return of the Glock or his shirts. Mr Coskun offered to bring Mr Batak a share of the proceeds of the robbery.
At around 3:40 AM on 2 April 2019 Mr Coskun and another, unidentified, man entered the apartment of John Odisho and Sargon Odisho. Sargon Odisho had drugs and cash in the apartment. Mr Coskun was armed with the loaded Glock given to him by Mr Batak. During the attempted armed robbery of the occupants of the apartment Sargon Odisho resisted handing over his drugs and money and fired a firearm in his possession, wounding Cengiz Coskun. Cengiz Coskun fired 10 rounds from the Glock in the apartment. One 40 calibre bullet so fired entered John Odisho’s head and caused his death.
Mr Batak entered an agreement with Cengiz Coskun to commit the foundational offence of robbery, armed with a dangerous weapon. He knew Cengiz Coskun had that weapon because he had provided it. He knew that Cengiz Coskun intended to rob the intended targets by a threat of force while armed with the gun he provided.
Mr Batak was not present at or during the robbery. He did not discharge the gun. He had no control over Cengiz Coskun firing the gun. He had no intention that the gun would be fired or anyone would be shot or that John Odisho would be killed or caused grievous bodily harm.
It was not an element of the offence of which Mr Batak was found guilty that he had foresight the gun would or would possibly be discharged. Nor am I satisfied that he had such foresight. In fact, the evidence, which comes from his statements in recorded conversations, is to the contrary. He said in those conversations he was told by Mr Coskun that the robbery would be easy, "in and out nice and quick" as the proposed targets of the robbery were understood to be incapacitated by their drug use. That is confirmed by his statement that the next morning when he heard on the radio about the shooting he "pulled over", "had a cigarette and thought about it", how close he was to the shooting which occurred. Those statements are evidence that he was taken aback by the report of the shooting having occurred.
There was some planning of the robbery by Cengiz Coskun, and some information obtained by him about the apartment and its occupants, but there is no evidence of any planning by Mr Batak until he joined in the agreement with Mr Coskun when Mr Coskun visited his house in the early hours of 2 April and told him about the robbery proposal and the "scenario".
That Mr Batak attempted to call Mr Coskun at 11:37 AM on 1 April and called him at 11:38 AM that day, and at 5:26 PM on that day sent his wife a message that he had to see "a few boys" "tonight" permits a finding that he knew he was going to see Mr Coskun, but does not permit a finding to the requisite standard that he knew precisely why he was meeting with Cengiz Coskun before Mr Coskun arrived. His message to Mr Coskun to park on the street, not in the driveway, permits a finding that he knew Mr Coskun was visiting for a purpose other than a social call.
There was no evidence that Mr Batak knew the quantity and value of the drugs or the quantity of money in the apartment.
The Crown submitted that Mr Batak’s motive to commit the offence was financial gain. Mr Batak’s motive for the agreed robbery was financial gain, to obtain a share of the proceeds of the intended robbery, although he did not do so, but that is different from his having a motive for the murder. He did not have a motive for the murder of John Odisho because he did not intend a murder to occur.
That the offence occurred in John Odisho’s home is a statutory aggravating factor.
Counsel for both parties relied on the statement of Wood CJ at CL in R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 that constructive murder is not to be regarded as less serious than other forms of murder. Wood CJ at CL said at [332]:

There is a dispute between the Crown and Mr Batak about the extent of his rehabilitation to date and his prospects of rehabilitation.
Mr Batak’s subjective material demonstrates that he is not the man who committed the crime in 2019, or even the man sentenced by R A Hulme J in September 2022. From the subjective material I take into account the following.
Mr Batak is now 33 years old. He was 26 in April 2019 at the time of the offence for sentence.
He has the close support of his sister Seval Cekicioglu, who wrote a long letter about him, his older sister Suzan Wills, and his father Faruk Batak. Mr Faruk Batak is 79 years old. His age and some health issues weigh on his son's mind.
Mr Batak’s mother passed away in July 2023 when he was in custody. He was not permitted to attend her funeral in person. He watched her funeral online. That experience, and his having to grieve his mother's loss alone in custody, are in addition to the deprivation of liberty which is the punishment involved in a custodial sentence.
Mr Batak has a son, aged 14, who was born when Mr Batak was a teenager. His son has been diagnosed with autism spectrum disorder. While Mr Batak was on bail from December 2024 he and his son built a positive relationship. His return to custody after his retrial has been difficult for both of them.
Mr Batak has formed a new and positive relationship with Ms Taylor Anani. They have married in a religious ceremony but their further plans to marry and care for Mr Batak’s son have been deferred pending his retrial and resentencing.
Mr Batak and his family say that he has matured and changed since he committed the offence, and I am satisfied that that is so.
Mr Batak said in his letter to the court that:
He has come a long way from the immature boy heard in the recorded conversations from 2019 which featured in evidence in his trial.
He used his time in custody to better himself and to be ready to return to the "outside world".
His court proceedings, including the uncertain outcome of the appeals, have been difficult for him to comprehend. However he respects the court's verdict.
He acknowledged his offending actions have affected John Odisho’s father and family. He expressed his sorrow and regret for the experience of John Odisho’s family.
He has used his time to reflect and knew he had to better himself and change, to be a better and more responsible person.
On bail he developed a strong work ethic and worked almost every day, and he had the opportunity to re-bond with his son.
His relationship with Ms Anani has helped him to become a better person.
He has distanced himself from "everything that had no positive impact" in his life and has made new friends. He has taken every positive step available to him in custody to be a better person on his release. He has worked hard to create a healthy bubble of support around him.
His custodial records show he has worked in custody.
A letter from Muslim Chaplain Ahmed Kilani, dated June 2022, said that Mr Batak had expressed remorse and contrition and taken responsibility for his offending behaviour. Chaplain Kilani said Mr Batak worked diligently and was entrusted and respected to act as a delegate on behalf of other inmates. That role was confirmed by Mr Batak’s custodial records.
Muslim Chaplain Mohamad Halloum, in a letter dated May 2026, said that among other attributes Mr Batak has been a positive older influence for younger Muslim inmates. He said Mr Batak’s "attitude, outlook and the way he has conducted himself in gaol" give him confidence in Mr Batak’s ability to rebuild his life.
Mr Batak also has positive references from his employers when he was on bail and the manager of the gym he attended during that time.
The Crown submitted that one of Mr Batak’s employers on bail, Mr Akdeniz and his relative, were previous associates of Mr Batak, so he had not discarded all his former associates. The Crown referred to Mr Erhan Akdeniz being party to a conversation with Mr Batak, recorded in Mr Batak’s house on 2 August 2019, which was played in the trial, and in which Mr Batak made admissions about having given his gun to Cengiz Coskun. I have re-read that conversation. Mr Batak had the greater speaking role and Mr Akdeniz did not say a great deal. There is no evidence in that conversation or elsewhere that Mr Batak and Mr Akdeniz were involved in criminal activity together. Mr Akdeniz employing Mr Batak in a family business while he was on bail is not to the discredit of either of them.
Other material showed Mr Batak was assaulted in custody in October 2024. He also relied on the impacts of Covid-19 on his custodial experience, causing many lock-ins during 2021 and 2022. He tendered material to show that since then, Covid and corrections staffing issues have given rise to lock-ins during 2023, 2024 and 2026. The Crown objected to that material, submitting that it did not identify when Mr Batak had been locked in. Mr Batak’s solicitor accepted that that was so, except when lockdowns affected all prisoners in a gaol. There were a small number of such lockdowns. I take them into account, in addition to the 2021 and 2022 Covid related lockdowns, as making Mr Batak’s experience of custody more restrictive and therefore more onerous.
Mr Batak’s custodial record shows two disciplinary infractions, being in possession of drugs, both in late 2022. Mr Batak told forensic psychologist Ms Alison Cullen that he relapsed to drug use after being sentenced, but upon being transferred to Hunter Correctional Centre he found positive routines and people and stopped using drugs again. He said he has remained abstinent from drug use since. There is no behaviour indicating the contrary.
I take into account that during his 14 months on bail Mr Batak did not commit any offence. The only conviction on his record is for the attempted armed robbery which occurred in the same incident and is the foundational offence for his constructive murder offence.
His record shows that in 2010, when he was 18, he committed two offences, of trespassing and receiving stolen property, for which he was placed on two six month good behaviour bonds without conviction, which demonstrates how the court regarded the seriousness of the offences. They have little bearing in sentencing Mr Batak now, except to reinforce that he has matured.
The wealth of positive material adduced in these sentence proceedings has convinced me that Mr Batak is a different man than the one who committed the offence for sentence. Since he was sentenced by R A Hulme J, and particularly during his period on bail, Mr Batak has taken many positive steps on the path to rehabilitating himself, both in his conduct and in his attitudes. I am persuaded by the material, which was not before R A Hulme J, that Mr Batak has partially rehabilitated himself since his offence and has good prospects of future rehabilitation. That is a more favourable finding than R A Hulme J made on the evidence before him, although he did note Mr Batak’s progress in custody until then and his potential. To his credit, Mr Batak has manifested that potential since then, despite some personal hardships and disappointments in his court processes.
Alison Cullen, forensic psychologist, expressed the opinion, after interviewing and assessing Mr Batak, that he has a low risk of reoffending. That opinion is, in my view, supported by his lack of convictions prior to those relating to the Five Dock events, and none since, his maturation and positive changes recently, and the likely personal deterrent effect of his time in custody. I am prepared to find that Mr Batak is unlikely to reoffend. I also find that due to the extent of his maturation and rehabilitation to date, specific deterrence has less impact on sentencing Mr Batak now than it would have had earlier in the proceedings.

In addition to the impacts on Mr Batak’s custodial conditions from Covid related restrictions, I also take into account that of the approximately five years and six months that Mr Batak has been in custody, he spent all but one year and two months of that time in remand conditions. It was submitted on Mr Batak’s behalf that in remand he was classified A2U (the ‘U’ denoting that he was unsentenced) and that that was, according to an extract from a Corrective Services Inmate Classification document, the third highest security rating. The Crown did not dispute that Mr Batak was in remand until he was sentenced by R A Hulme J and after his appeal was allowed by the Court of Criminal Appeal until he was granted bail by Rigg J. The Crown submitted that it is difficult to understand from the A2 classification what restrictions Mr Batak experienced. The Crown tendered a longer extract from the Corrective Services Inmate Classification document. It did not throw any light on the meaning or effect of the A2 classification, except to indicate that a person's offence is a factor in the determination of a security rating.
It is well known by sentencing judges and others involved in the criminal justice process that remand prisoners generally have less access to programs and employment opportunities than sentenced prisoners. However, Mr Batak’s custodial records tendered in the sentence proceedings showed that he had some employment opportunities while on remand. Those records also confirmed that in March 2022 Mr Batak was recorded as having assisted staff during the period of extended Covid lock-ins by acting as a delegate, which involved cleaning of common areas, assisting with the distribution of meals and other items required by locked-in inmates, and liaising with locked-in inmates and working with staff to ensure that inmates did not become stressed or aggressive. Mr Batak’s inmate profile document records that on 21 December 2023 he was classified "B medium security”, but on 20 May 2024 (that is, shortly after the Court of Criminal Appeal’s decision in his appeal) he returned to an A2 unsentenced classification.
The precise effect of Mr Batak’s remand and A2 maximum security classification are difficult to discern, except that maximum security restrictions are, according to the inmate classification document tendered on behalf of Mr Batak, more secure than medium and minimum security restrictions. I infer that a maximum security environment is likely to have a greater impact on the psychological well-being of inmates so confined, including Mr Batak. I take that into account.

Mr Batak submitted that his strict bail conditions from 19 December 2024 until his bail was revoked on 27 February 2026 amounted to quasi-custody which should result in a quantified deduction from his sentence.
The Crown submitted that, to the contrary, Mr Batak had a high degree of freedom of movement and association while on bail, permitting him to work, live with his sister, see his father and other members of his family, get married and attend the gym. Therefore, the Crown submitted that Mr Batak’s conditions of bail did not amount to quasi-custody and should not be counted as such.
Whether bail conditions are so harsh or restrictive that they amount to "quasi-custody" is a matter of fact, to be determined on the evidence: R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253 at [87-88], and the cases cited therein.
Mr Batak’s bail conditions differed in two periods. When he was released to bail on 19 December 2024 his bail conditions included, most relevantly, a "home detention" condition, which required him to not leave his home address except in the company of one of his sisters or an aunt, for the purposes of reporting daily to police, to attend court or legal conferences with his legal representatives, to attend health related appointments or medical emergencies, or to take his child to activities, health related appointments or emergencies. The balance of the conditions limited his travel and phone use but were not particularly restrictive. On 21 March 2025 the home detention condition was varied, to broaden the group of people with whom Mr Batak could leave his home, and to permit him to engage in one hour of exercise/gym per day at specified gyms, and to engage in lawful employment, provided he gave written notice to the officer in charge. Thereafter the material before me shows that Mr Batak did attend his employment and gym frequently and regularly, and the family's references indicate that he spent time with his father, son, his sisters’ families and with Ms Anani, his now wife. On that basis I do not consider that Mr Batak’s bail conditions from 21 March 2025 until February 2026 were equivalent to quasi-custody. The restrictive home detention condition from 19 December 2024 until 21 March 2025 I do consider to be so restrictive as to amount to quasi-custody. I will give Mr Batak credit for that period by backdating his sentence for two thirds of the period, that is, two months.

Counsel for Mr Batak relied on the approval of the Gilmore ceiling principle by the Justices of the High Court in McL v The Queen (2000) 203 CLR 452; [2000] HCA 46, albeit obiter, to emphasise that an offender should not be perceived to have been punished for having successfully appealed against his conviction, by a higher sentence after his retrial, nor should the prospect of such deter offenders from exercising their appeal rights. Counsel also relied on the decision of Armstrong v R [2015] NSWCCA 273, particularly the emphasis by Beech-Jones J at [66] that the application of the principle should avoid a person "effectively being punished for mounting a successful appeal".
Counsel for Mr Batak submitted that, in the application of this principle, Mr Batak should receive a more lenient sentence than imposed after his first trial, taking account of the procedural history of his prosecution, which I have described, the time he has already served in custody and his demonstrated substantial rehabilitation, including when he was on bail, and that he has completely served his sentence for the foundational offence. Counsel also submitted that as well as the public policy in successful appellants not seeming to be punished for such, there was a public policy benefit in Mr Batak’s appeal to the Court of Criminal Appeal having clarified the law in respect of the interrelationship between accessorial liability and constructive murder.
Counsel submitted that although the pathway to his liability for constructive murder in the second completed trial was different from that pursued by the Crown in the first completed trial, Mr Batak’s guilt was established by the same acts of participation in the joint criminal enterprise attempted armed robbery. Therefore, counsel for Mr Batak disputed the Crown's submission that Mr Batak’s conviction for constructive murder on the basis of his being a party to a joint criminal enterprise was a more serious offence than his being an accessory before the fact to constructive murder.
The Crown acknowledged the existence of the ceiling principle but submitted that it did not apply inflexibly and should not apply in the sentencing of Mr Batak now for a number of reasons. They were, the Crown submitted, that Mr Batak is being sentenced for murder on a different basis of liability than he was tried for and sentenced on in 2022. The Crown submitted "given the Court of Criminal Appeal found the offence for which Mr Batak was sentenced was not known to law, it is difficult to see how this sentence could now validly operate to impose an upper limit." The Crown submitted that although the factual basis of Mr Batak’s trial was "nearly the same", there are "some key differences in sentencing that arise from the basis of liability and how the case was framed." They were that Mr Batak was a participant in the joint criminal enterprise to commit the foundational offence of armed robbery leading to the constructive murder as opposed to an accessory. Therefore he is criminally responsible for the same acts as his co-offender Mr Coskun. The Crown submitted that Mr Batak’s offending conduct and participation is more serious than if confined to an accessory, and that his participation in the joint criminal enterprise gives rise to a greater level of criminality.
The Crown submitted that the sentence imposed on Mr Coskun requires more weight in consideration of the principle of parity, now that Mr Batak is not being sentenced as an accessory.
The Crown submitted that when R A Hulme J sentenced Mr Batak as an accessory before the fact to murder he did not apply the standard non-parole period because he was dealing with an accessory offence but that the standard non-parole period applies to the offence for which Mr Batak is now to be sentenced. The Crown submitted that if the standard non-parole period applies to the offence for which Mr Batak is now being sentenced that that could lead to a sentence greater than that imposed by Justice R A Hulme, which had a non-parole period of 10 years imprisonment, half the prescribed standard non-parole period, even though his Honour found Mr Batak’s offence to be above the mid-range in terms of its seriousness.
The Crown submitted that whereas Justice R A Hulme sentenced Mr Batak on the basis that he was not satisfied beyond reasonable doubt that Mr Batak stood to gain anything, Mr Batak was found in this trial to have been motivated by financial gain, to receive a share of the proceeds of the planned robbery. The Crown submitted that in light of those changed circumstances the sentence imposed on Mr Batak now should be higher than that imposed by R A Hulme J.
The Crown relied on Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425 as an example of a case in which after Ms Tarrant’s second trial the sentencing judge made different factual findings about Ms Tarrant’s role in the offence and imposed a higher sentence than imposed after the first trial. The Court of Criminal Appeal considered it appropriate that the "conscientiously made" factual findings of the second trial judge of the offender’s culpability being greater than found by the first trial judge warranted a heavier sentence than passed after the first trial.
The Crown submitted that Mr Batak cannot be rewarded for having clarified the law in his appeal, as was submitted on his behalf.
The Crown's submission that the sentence imposed after Mr Batak’s first completed trial does not validly operate to impose an upper limit because the Court of Criminal Appeal found the offence for which he was sentenced was not known to law is, I think, not quite an accurate reflection of the Court of Criminal Appeal’s decision, but in any event it is contrary to the principle that a person should not be punished or appear to be punished by a higher sentence for having successfully appealed against his conviction, and it strikes me as unfair that the Crown seeks to take advantage of it having been held to have conducted Mr Batak’s first trial on an incorrect basis to now seek for him to be subject to a higher sentence.
The Crown argues that the offence of which Mr Batak has now been convicted is a more serious offence than his previous accessory offence, based on his having agreed with Mr Coskun to commit the foundational offence. However, the offence of murder has the same maximum penalty as the offence of accessory before the fact to murder. Mr Batak has to be sentenced for the same acts; there are no additional acts by him to be taken into account. R A Hulme J sentenced Mr Batak on the basis that he provided the loaded mini Glock with extended clip and the high visibility work shirts to Mr Coskun to be used in the proposed armed robbery. There is a legal difference in Mr Batak’s liability now but if there is a factual difference in his being considered to have participated in the joint criminal enterprise it is a very fine distinction. Moreover, R A Hulme J found that Mr Batak foresaw the possibility of the gun being discharged in the course of the robbery of someone who would not willingly surrender drugs or money without resistance. That was not an element of the offence with which Mr Batak was tried before me and that was not a finding I made. Indeed, I found to the contrary. In that respect, the conduct of Mr Batak to be considered for sentencing now is less serious than when he was sentenced by R A Hulme J.
The standard non-parole period applies to the offence for sentence, but while it is a legislative guidepost, on the facts I have found I assessed Mr Batak’s offence as below the mid-range of seriousness. Therefore the legislative guidepost of the standard non-parole period assumes less significance in sentencing Mr Batak now.
I have found that Mr Batak’s motive for agreeing to engage in the armed robbery was financial, but not that he had such a motive for the murder which occurred.
Next, I must consider the issue of parity with the sentence imposed on Mr Coskun and Mr Coskun’s offending and personal circumstances.

Mr Coskun was sentenced by R A Hulme J to an aggregate term of imprisonment of 34 years with a non-parole period of 25 years and six months. The sentence indicated for the murder offence was 32 years imprisonment with a non-parole period of 24 years, and the sentence indicated for the attempted armed robbery was five years imprisonment. Mr Coskun was sentenced after trial. In sentencing Mr Coskun, R A Hulme J found that there must have been planning and premeditation which involved the selection of the home of a "significant drug dealer" as the target. His Honour found there was a degree of planning demonstrated by Mr Coskun and the man who accompanied him into the apartment arriving in separate vehicles, parking them well away from the apartment, meeting up and approaching on foot and scaling the fire hydrant housing to access the balcony by which they gained entry to the apartment.
In assessing the objective seriousness of Mr Coskun’s offences his Honour found that Mr Coskun and the unknown intruder carried out a home invasion, intent on robbing the occupants of something illegal and of significant value, being drugs, money or both. His Honour found they each came armed because it was obvious that the drugs and or money would not be surrendered willingly and it was likely that the person in possession of them would be armed. His Honour found that Mr Coskun discharged 10 rounds from the Glock including the shots that struck Sargon Odisho in the arm and the fatal shot that struck John Odisho. His Honour took into account as an aggravating factor that the attempted armed robbery was committed by two offenders in company, both of them armed, and there were three victims who were confronted in the flat. That Mr Coskun was armed and clothed and gloved to conceal his appearance indicated some degree of forethought and planning by him. His Honour found that at the time of firing his gun Mr Coskun at least intended to cause really serious bodily harm. His Honour also found there must have been a high degree of recklessness as to the possibility of death being caused. His Honour found that the attempted robbery offence was aggravated by the fact that in pursuit of the robbery Mr Coskun twice wounded Sargon Odisho with gunfire. His Honour found both offences were above the mid-range of objective seriousness.
Mr Coskun had a criminal record which commenced in the Children's Court when he was aged 17. He had been sentenced at the end of 2014 to five years imprisonment for six robberies of Subway stores in 2013 while armed with a knife, and in some of which he wore a high visibility shirt. He had just completed his parole in early January 2019, about three months before his arrest for the subject offences.
Mr Coskun had been diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder with anxious distress. His Honour found that Mr Coskun’s subjective case involved early life disadvantage and physical and sexual abuse. His Honour accepted that they provided a context for Mr Coskun’s offending. His Honour was not asked to and did not find that Mr Coskun’s mental conditions were causative of the offending and thereby reduced his moral culpability. His Honour was not satisfied that Mr Coskun was remorseful. His Honour took into account the effects of Covid related isolation and deprivation while Mr Coskun was in custody.
His Honour found there was additional criminality in the attempted robbery offence, primarily by virtue of Sargon Odisho being shot twice in the arm, but accepted there should be a high degree of concurrency in the sentences for the two offences. His Honour took into account that he had to avoid double punishment for the foundational offence of the constructive murder, and stated that he had complied with that requirement and the requirements of Pearce v T**he Queen (1998) 194 CLR 610; [1998] HCA 57 by assessing a sentence less than would have been appropriate had he been sentencing Mr Coskun for that offence alone.
It will be apparent from the above that Mr Coskun’s conduct in his offences, his presence at the attempted armed robbery, his firing of the Glock, with the states of mind his Honour found him to have, and his extra conduct in the attempted armed robbery of shooting Sargon Odisho, meant that his offending was significantly more serious than Mr Batak’s in the same enterprise. Furthermore, Mr Coskun’s prior criminal record, including for recent armed robbery offences, distinguished his circumstances from Mr Batak’s, even though Mr Coskun had a more disadvantaged subjective case.
In Lowe v T**he Queen (1984) 154 CLR 606; [1984] HCA 46 Gibbs CJ stated at [609]:

Mr Batak, in reliance on s 22A of the Act, submitted that the court should impose a lesser penalty because he facilitated the administration of justice by the conduct of his most recent trial, specifically by agreeing to the tender of exhibits and evidence of some witnesses from the first trial.
Section 22A provides that a sentencing court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence, including during the trial. A lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
The Crown submitted that the application of that provision should not lead to a lesser sentence for Mr Batak. The Crown relied on the decision of the Court of Criminal Appeal in Dukagjini v R [2023] NSWCCA 210 in which the members of the Court (Harrison J, Wilson J and N Adams J) all emphasised the discretionary nature of the provision, which was not necessarily enlivened simply by an election to proceed to trial by judge alone (although that was not the basis of the submission made on behalf of Mr Batak). The Crown relied on the statement by Harrison J that the fact and degree of the facilitation of the administration of justice by the defence in a trial is the relevant factor. The Crown relied on a statement of Wilson J that it is not any level of efficiency in the conduct of the trial by an accused person which will attract a lesser sentence pursuant to s 22A. The Crown relied on the statement of N Adams J that s 22A is a discretionary provision, so that even if an accused person’s counsel has run a trial in an efficient way which has facilitated the administration of justice the trial judge is not required to impose a lesser penalty if there is a proper discretionary basis to decline to do so.
The Crown submitted that since the course of justice began in Mr Batak’s case there have been two trials and that a question arises whether the court should have regard to Mr Batak’s conduct of his previous trial. The Crown submitted that although in his recent trial Mr Batak agreed to the tender of evidence of the witnesses who were neighbours of Mr Odisho’s apartment, that evidence was not controversial and did not take a long time to adduce in the first trial. The Crown submitted that the court was required to read all the evidence in any event so that any savings in time was limited in terms of days rather than weeks.
The court was provided with three court books during the trial, which contained the evidence of the neighbour witnesses as to their hearing conduct consistent with an armed robbery, or attempt at such, and also included medical evidence. In addition there were tendered transcripts of recorded conversations, and Mr Batak did not dispute that he was a speaker in those conversations and put the Crown to proof of that fact. In agreeing to that evidence being adduced in that way, and not challenging the evidence of recorded conversations, which were a significant plank of the Crown case, except as to some disputes as to what was said, Mr Batak did facilitate the administration of justice to some extent. Although there were issues in the trial which meant that it did not run efficiently, they do not detract from Mr Batak’s intention to facilitate the administration of justice in the ways described. Therefore I will take into account that to an extent, at the lesser end of the scale, he did so and his sentence should be accordingly reduced, not by a quantified discount but in the instinctive synthesis process.

His Honour made the sentence for the robbery offence wholly concurrent with the sentence for the then accessory before the fact to murder offence.
The Court of Criminal Appeal, at [236] said of Justice R A Hulme’s [128]: “As that paragraph illustrates, sentencing for the foundational offence could not have been, and was not, separated from sentencing for the murder charge”.
I consider that that is the correct approach, as the attempted robbery offence was the foundational offence for the constructive murder offence, and there was no additional criminality, so there should not be any additional punishment. Therefore this sentence will be wholly concurrent with the sentence for the attempted robbery imposed by R A Hulme J.
I have to take into account the following:
The total period of custody Mr Batak has served to date, being 5 years and almost 4 months (less 2 days), between his arrest on 21 August 2019, from which his sentence commenced, until 19 December 2024, when he was released to bail, and the period since his bail was revoked on 27 February 2026 until today which is 3 months and 2 days. That is a total of 5 years and 7 months, as of today 29 May 2026.
The 14 months and 8 days he was on bail.
An allowance of two months for quasi-custodial conditions in his initial bail period.
Backdating from now for the total period of pre-sentence custody, and then backdating by a further 2 months for quasi-custody, I reached a commencement date of 29 August 2020. I reached the same date by adding the period on bail to the date Mr Batak went into custody, then backdating by two months for quasi-custody.
The Crown had nominated a commencement date of June 2020 by deducting the period on bail from the 2 year sentence for the armed robbery related offence. Counsel for Mr Batak protested that that still involved double punishment. However I consider that the correct approach is to deduct all the pre-sentence custody and quasi-custody from now, and the date I have reached to be appropriate.
Taking all the above matters into account, the sentence will be 12 years imprisonment with a non-parole period of 9 years, to date from 29 August 2020. The sentence will expire on 28 August 2032 and the non-parole period will expire on 28 August 2029.

R v Batak

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Procedural history summarised

Findings of fact

Victim impact statement

Subjective circumstances

Conditions of custody

Hardship to family members

Delay

The crossroads

Quasi-custody

The ceiling principle

Parity with the sentence imposed on Mr Coskun

Range of sentences for constructive murder

Facilitating the administration of justice

Special circumstances

Commencement of sentence

Amendments

01 June 2026

Parties

Legislation Cited (1)

Cases Cited (15)