DPP v Bulut; DPP v Terzi - [2007] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS
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:

I invite Vincent JA to deliver the first judgment.

VINCENT JA:

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.

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.

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Bulut; DPP v Terzi

Details

AGLC: Director of Public Prosecutions v Bulut; Director of Public Prosecutions v Terzi [2007] VSCA 69
Case: [2007] VSCA 69
Decision Date: 17 April 2007

CaseChat Overview and Summary

The cases of the Director of Public Prosecutions versus Bulut and Terzi were heard by the High Court of Australia. The respondents, Bulut and Terzi, were originally convicted of intentionally causing serious injury to another person. Both respondents appealed against their sentences, claiming that they were manifestly inadequate. The Crown conceded that the sentences should not be substituted with immediate incarceration, but argued that the sentences were nonetheless inadequate. The High Court was tasked with determining whether the original sentences were manifestly inadequate and, if so, what appropriate action should be taken.

The primary legal issue before the court was whether the original sentences imposed on Bulut and Terzi were manifestly inadequate, warranting intervention. The court considered the principles of sentencing in the context of intentionally causing serious injury. It was essential to examine whether the sentences imposed were so inadequate as to shock the conscience of the community and undermine the law's authority. The court also needed to consider the Crown's concession and whether it affected the respondents' entitlement to a fair and just sentence.

In its reasoning, the court found that the original sentences imposed on Bulut and Terzi were indeed manifestly inadequate. The court noted that intentionally causing serious injury is a serious offence that demands a robust response from the criminal justice system. The sentences, which did not involve immediate incarceration, were deemed insufficient to reflect the gravity of the crime and to serve as a deterrent. Despite the Crown's concession that the sentences should not be substituted with immediate incarceration, the court concluded that the sentences were egregiously inadequate. Consequently, the Crown appeals were allowed, and the respondents were re-sentenced to ensure that the sentences appropriately reflected the seriousness of the offences committed.

The High Court ordered that Bulut and Terzi be re-sentenced to reflect the seriousness of their crimes. The court emphasised that the new sentences must serve the purposes of punishment, deterrence, and community protection. The respondents were given the opportunity to make submissions on appropriate sentencing options, considering the original sentences were manifestly inadequate. The final orders of the court mandated that the sentences imposed on Bulut and Terzi be reviewed and revised to ensure they were commensurate with the gravity of the offences.

Orders