DPP v Bulut; DPP v Terzi

[2007] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS
	No 440 of 2006
v
MOHAMMED BULUT
DIRECTOR OF PUBLIC PROSECUTIONS	No 439 of 2006
v
TARIK TERZI

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JUDGES:	BUCHANAN, VINCENT and EAMES JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2007
DATE OF JUDGMENT:	17 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 69

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Criminal law – Crown appeal – Intentionally causing serious injury – Manifest inadequacy – Crown concession that sentence of immediate incarceration should not be substituted – Sentence egregiously inadequate – Appeal allowed – Respondents re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent Bulut	Mr M J Croucher	Galbally Rolfe
For the Respondent Terzi	Mr D P Sheales	Galbally Rolfe

BUCHANAN JA:

1. I invite Vincent JA to deliver the first judgment.

VINCENT JA: 

1. The respondents, Mohammed Bulut and Tarik Terzi, each pleaded guilty in the County Court at Melbourne, on 28 October 2005, to one count of intentionally causing serious injury. 

1. After hearing a plea in mitigation of penalty, the learned sentencing judge, on 24 November 2006, imposed a sentence of imprisonment of six months upon each respondent, the service of the whole of which was suspended for a period of 18 months. 

1. The Director of Public Prosecutions has appealed against the sentence imposed on each of the respondents on the single ground that it is manifestly inadequate.  The particulars advanced in support of this contention assert that the learned sentencing judge:

(a)failed to adequately reflect the gravity of the offence generally and in this case in particular; 

(b)failed to specifically take into account the aspect of specific deterrence; 

(c)failed to sufficiently take into account the aspect of general deterrence; 

(d)gave too much weight to factors going to mitigation; 

(e)gave insufficient weight to the maximum penalty applicable to this offence;  and

(f)gave insufficient weight to the effect of the offending upon the victim.

The Background

1. In the early hours of 6 July 2003, the victim, Farooq Muhammed, was at a night club in the Crown Casino complex with a friend.  The respondents were also present with another individual.  A verbal dispute, the genesis of which I understand is disputed, ensued between the two groups and developed into a physical altercation, in the course of which, the victim was struck to the right side of his head, causing him to fall to the floor.  Whilst there, he sustained further blows and pushes.  During the incident, he lost a necklace that had been pulled from his neck.  The establishment's crowd controllers intervened and ejected all of those involved from the night club. 

1. The victim then descended one level of the complex via the escalator and moved towards a food court located there.  He went to a men's washroom and, in a mirror, observed swelling, a red mark near his right temple and red marks around his neck, apparently caused when the necklace was pulled from him.  He also experienced pain in his right foot that had twisted as he was knocked to the ground. 

1. Mr Muhammed was still in the vicinity of the food court when he was again approached by the respondents.  He had been observed on the escalator and, it would seem clear, that unsatisfied at the outcome of their earlier encounter, they wanted to pursue the matter.  In any event, another fight ensued.  The commencement of this part of the incident was not recorded, but some of what transpired was captured on closed circuit television and revealed Terzi wrestling on the floor with the victim.  The two were separated and, whilst Muhammed was still kneeling or crouched on the floor, Terzi approached and suddenly lashed out with his foot, kicking him with very considerable force to the head.  Unsurprisingly, this caused Muhammed to fall to the floor.  Security staff intervened to control Terzi.  As Muhammed was raising himself to his knees following this assault, Bulut rushed forward from a position behind him and also kicked him savagely to the head, causing him to collapse once more. 

1. As a result of these attacks, the victim was seriously injured, sustaining two fractures of the mandible that required surgery, a chipped tooth, grazing, bruising and swelling to his head and face, bleeding from his mouth, concussion, and pain. 

1. When later interviewed by investigating police, Bulut agreed that he had been involved in the altercations at the nightclub and then at the food court.  He said that he became caught up in the former when he went to separate the protagonists in fights that had already commenced.  With respect to his attack upon Muhammed in the food court, he admitted to kicking him before he was able to get to his feet and stated that his intention at that time was to “get him as much as I can and then run off”.  He agreed that he had delivered a “hard kick” and that Terzi and he were “bashing” the victim. 

1. Terzi, in his interview, also agreed that he was involved in the altercation at the nightclub.  He stated that he participated when he saw a friend being punched.  He claimed that he had become involved in a wrestle with Muhammed in the food court, but did not think that he threw any punches and could not say if any were thrown.  At that stage, he denied kicking him.

The Appeal

1. There is no need to recite the principles upon which this Court must proceed when considering a Crown appeal against sentence.  They are well known and regularly applied and are set out in such cases as R v Clarke[1], DPP v Johnson[2], DPP v Bulfin[3] and DPP v Bright[4]. 

   [1][1996] 2 VR 520.

   [2](2004) 10 VR 85.

   [3][1998] 4 VR 114.

   [4](2006) 163 A Crim R 538.

1. Counsel for the Crown, in support of his application, however, conceded that there were a number of common or similar matters that each of the respondents can call in aid as militating in favour of mitigation of penalty in their separate cases, including that:  

·the assault was spontaneous, of short duration and did not involve the use of weapons.  Further, it took place only shortly after the earlier confrontation and at a time before emotions had settled;

·the absence of prior convictions in each case and, in Bulut's situation, the provision of considerable support to his family, both financially and personally;

·their previous good character, as demonstrated by excellent work histories;

·their separate reputations and the voluntary work performed by both for the Muslim community and through organisations promoting understanding between different religions, and their involvement with a soccer club;

·the possession by each of at least good, if not excellent, prospects for rehabilitation;

·both were affected by alcohol at the time and both had abstained from drinking since 2004;

·the fact that each had demonstrated the presence of remorse;

·the youth of each of the respondents at the time of the commission of the offence (Terzi was aged 21 years and 24 at the time of sentencing while Bulut was only a few months older); and

·the substantial period of time that had elapsed between the happening of the incident and the imposition of sentence. 

However, counsel for the Director contended, the seriousness of the conduct in which they engaged on this occasion, and the importance of general deterrence in cases of this kind, required the imposition of a substantially greater sentence in each case than that handed down.  He stated, however, that when regard was had to the principles upon which this Court must proceed when considering Crown appeals, the Director of Public Prosecutions had formed the view that it would be inappropriate to submit that a sentence requiring immediate incarceration should be substituted.  As I indicated in the course of discussion, the Court is not restricted by this concession, and it has been only after considerable thought concerning the matter that I have come to the view that it should be accepted and acted upon. 

1. The sentences imposed in this case were, in my view, clearly inadequate, but as Redlich JA stated in Bright[5]:

“…manifest inadequacy alone will not be sufficient to warrant appellate intervention.  Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. … The inadequacy of the sentence must be ‘clear and egregious’,… the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience … and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.”

[5](2006) 163 A Crim R 538 at 542.

1. There is no need to emphasise, by the inclusion of any of the many adjectives that would readily come to the minds of most members of the community when looking at the seriousness of the conduct of the respondents in this case, or to set out any of the many statements of this Court regarding the importance of general deterrence as a sentencing consideration in cases of this kind.  Each of the respondents cowardly and viciously kicked the head of a person who was in a defenceless and vulnerable position on the floor.  They did so with the admitted intention of causing him serious injury.  They succeeded in that endeavour, and he now suffers some permanent disability in his jaw area.  In one sense, both the respondents and he were extremely fortunate that the consequences were not worse.  Notwithstanding the presence of powerful mitigatory factors in each case, the sentence imposed on each of them in the court below was, in my view, egregiously inadequate to the extent that the intervention of this Court is required.  Specifically, the sentences do not reflect these considerations.  I would allow these appeals, set aside the sentences imposed in the court below and in lieu thereof, upon each of the respondents, impose a sentence of imprisonment of two years and six months, the service of the whole of which is to be suspended for a period of two years and six months from today's date.

BUCHANAN JA: 

1. I agree.

EAMES JA: 

1. I agree with the orders proposed by Vincent JA and with his Honour's reasons.

1. I add only this.  The viciousness and cowardice of the assaults delivered by the respondents to the defenceless victim are manifest.  It is no surprise that the victim suffered serious and long lasting consequences from the assaults.  The respondents intended that he would suffer serious injury.  That conduct would normally necessitate the imposition of significant sentences of imprisonment to be immediately served, notwithstanding the factors that both respondents were able to call in aid in mitigation of sentence.  The respondents were, however, sentenced to manifestly inadequate sentences, which were then wholly suspended.  Some five months have passed since the sentences were imposed and the respondents have remained within the community and have taken positive steps towards their rehabilitation.  In attending court for this appeal they had the assurance that the Director was not seeking to have them serve a period of actual imprisonment.  Whilst the attitude of the Director in that respect cannot inhibit the discretion of the members of this Court, it would be unduly harsh in the circumstances for the Court to now impose a sentence of immediate imprisonment.  That is a merciful outcome which results only by virtue of the special considerations that attend a Director's appeal.  The respondents showed no equivalent mercy for their victim at the time of the assaults and they could expect no further mercy from the courts were they to breach their suspended sentences.

BUCHANAN JA:

1. Mr Bulut and Mr Terzi, I am required to explain the purpose and effect of the orders this Court proposes to make and the consequences that may follow if you commit another offence.  You will only serve this sentence if you are ordered to do so.  Such an order may be made if, during the next two years and six months, you commit, whether inside Victoria or outside, another offence punishable by imprisonment.  In that event, you will be ordered to serve the sentence unless the Court is of the opinion that it would be unjust to do so in the light of exceptional circumstances that have arisen since the order of suspension was made.  In short, if you commit another offence punishable by imprisonment, you will probably serve two-and-a-half years in prison.

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