R v Din

[2001] QCA 265

[2001] QCA 265

COURT OF APPEAL

McMURDO P
DAVIES JA
THOMAS JA

CA No 84 of 2001

THE QUEEN

v.

BILAL DIN  Applicant

BRISBANE

..DATE 13/07/2001

JUDGMENT

THE PRESIDENT:  On 28 February 2001 the applicant pleaded guilty to two counts of doing grievous bodily harm with intent on 1 December 1999.  On 19 March 2001 he was sentenced to six years concurrent imprisonment on each count and 474 days spent in pre-sentence custody was deemed to be time already served under that sentence.

The applicant, who is represented by Mr Devlin, claims the sentence was manifestly excessive, specifically noting that no recommendation was made for consideration for early release on parole.  During his submissions this morning
Mr Devlin also contended that there should not have been distinction between this applicant and his co-offender Tayfun Ekinci, at least as to the recommendation for parole.

The applicant was jointly charged with Ozhan Ekinci and Tayfun Ekinci on both counts.  Tayfun Ekinci was sentenced to five years' imprisonment with a recommendation for early release on parole after two years with 474 days of pre-sentence custody deemed to be time already served under the sentence.  Ozhan Ekinci was sentenced to three years' probation with a special condition that she undertake medical, psychiatric and psychological treatment; convictions were recorded.

All offenders were members of the Australian Turkish community.  Mrs Ozhan Ekinci's husband died about three weeks before the commission of these offences.  In accordance with Moslem Turkish tradition, we are told, there was a 40 day mourning period. 

The three offenders came to the Gold Coast towards the end of that period where Mrs Ekinci's daughter lived.  A week earlier the offenders had been evicted from their unit for non-payment of rent.  Mrs Ekinci's daughter organised accommodation at the Captain Cook Motel nearby.

Tension developed between the managers of the motel units and the three offenders.  The tension climaxed when Tayfun Ekinci's clothes were stolen from a clothes line and he confronted the managers, the complainant's parents, requesting further accommodation as compensation for the loss of these items.

The managers refused compensation and Tayfun Ekinci threw some brochures around the managers' office.  The female manager rang the police.  She then saw the applicant and Tayfun Ekinci throwing plastic outdoor furniture around the car park.  Tayfun Ekinci held up a broken stick of furniture in a manner the managers described as threatening. 
Mrs Ozhan Ekinci was in the general vicinity.  She returned to her unit and the two males carried property from the unit towards the beach.  One of the males yelled, "We are going to get you.  We are going to kill you".

The managers telephoned their son, the complainant, who was employed elsewhere as a security guard.  Unknown to the managers, Mrs Ekinci was suffering from chronic bi-polar disorder previously known as manic depression, which had worsened since her husband's death.  On the day of these offences she was not taking her medication.

The complainant arrived at the scene where Mrs Ekinci was being abusive.  The complainant said he thought that
Mrs Ekinci was going to hit his mother and so pushed her to intervene.  An independent eye-witness saw the complainant hit Mrs Ekinci with considerable force on the side of the face and was outraged by the complainant's conduct.

Mrs Ekinci then became more verbally abusive and said she would get her sons; she walked up the street.  The applicant, though not the natural son of Mrs Ekinci, was regarded by her as a son in Moslem Turkish cultural terms as he and Tayfun are blood brothers.  Mrs Ekinci complained to the males that she had been slapped across the face and the males then took knives from the kitchen of a nearby unit. 
The occupant of the unit tried to discourage them but the applicant said, "No, we are Turks.  This is what we do", slapping his upper leg in a stabbing motion. 

The males ran out of the unit towards the complainant of the motel.  The complainant saw them and armed himself with an extendable baton and provided his father with a wooden bat.  The complainant raised his hands and told them to put the knives down saying, "You're going to gaol."  Mrs Ekinci was also present and all three offenders were screaming abusively.

The males were swinging their knives in a lunging motion and the complainant hit Tayfun Ekinci on the left thigh with his baton.  The males continued to lunge at the complainant with the knives.  As the complainant backed away, the applicant lunged again with a knife.  The complainant hit him in the arm with the baton using such force that the baton was damaged.  The applicant again swung the knife, this time slashing the complainant in the stomach.  Tayfun Ekinci was also trying to stab the complainant during this fracas. 

The complainant lay on the ground and felt part of his intestines protruding through the wound into his hand.  He heard someone say, "Stab him again."  He heard Mrs Ekinci say, "Stab him."  The applicant again stabbed him in the upper part of the right leg.  Mrs Ekinci, who was present throughout the incident, yelled encouragement to the younger males.

The males decamped, the applicant buried the knife in a pot plant where it was later located by police.  Police dogs located the male offenders hiding outside the units in bushes. 

The complainant suffered a 15 centimetre horizontal laceration to the epigastric region of his abdomen with an evisceration of the small intestine.  He also suffered a small laceration to his thigh.  He was taken to theatre and the wound cleaned and closed.  Had he not received medical treatment death would have ensued.  The injury to the thigh was later found to have partially divided the right sciatic nerve and on 21 December 1999 the applicant underwent surgery to repair the damage.

The applicant was interviewed on 1 December and was unable to actually remember the commission of the offence.  He did not, however, dispute his involvement in the offence.  The other co-offenders admitted their involvement but attempted to justify their conduct.

A victim impact statement tendered on behalf of the complainant, who was 28 years old, indicated that he was in great pain after the attack and believed he was dying.  He was hospitalised on two separate occasions.  He had
16 staples in his stomach and six in his leg.  Surgery was necessary to repair the sciatic nerve and resulted in 26 staples in his thigh and an ugly scar.  His leg was in a cast and he was on crutches over the Christmas/New Year period.  Nine months after the incident he said he had not recovered full feeling or strength in his leg.  He has not been able to work in the security industry or to maintain his involvement in the sport of Karate in which he had won some Queensland and South Pacific titles.  He has suffered considerable emotional trauma since the incident.

The applicant is the second of five children in a family of Turkish cultural background.  He has no prior convictions.  His family members, including his extended family, came from Sydney to support him at his sentence.  He was treated by
Mr and Mrs Ekinci as a second son and played a recognised role in his cultural grieving process for Mr Ekinci. 

In the background of tension between the offenders and the managers of the motel he understood the complainant had slapped Mrs Ekinci's face, a very significant affront to a married woman of Moslem extraction, and the applicant and Tayfun Ekinci acted to preserve their mother's honour.

The applicant was armed with a vegetable knife, 14 centimetres in length from handle to tip.  The applicant's counsel submitted at sentence that the applicant was hit on the head by the complainant with a baton which dazed him, especially as earlier in the day he had taken some Mogadon for a strong headache.  He became dizzy, snapped and lost control committing the offences.

The applicant had a good work history having completed three years of a fitter and turner's apprenticeship.  The Court was told his job would be open to him when he was released from prison.  He was 18 at the time of the offences and 20 at the time of sentence. 

References were tendered on his behalf by members and organisations within the Turkish community which emphasised that the offence of violence was out of character and suggested that his rehabilitative prospects, because of his good family and work history, were substantial.  Whilst on remand in prison he completed a number of rehabilitative
courses.

Tayfun Ekinci was also 18 at the time of the offence and at sentence was the father of twin daughters six months of age.  A psychiatric report was tendered on his behalf together with character references, work references and certificates of courses completed whilst in custody. 

I should also mention that Mrs Ekinci had spent 245 days in pre-sentence custody. 

Despite the urgings of the Prosecutor at sentence, the learned primary Judge declined to make a declaration under part 9A of the Penalties and Sentences Act 1992. For that reason he also declined to make a recommendation for early parole in the applicant's case.

Mr Devlin, in his written submissions, stresses that the applicant acted without premeditation in the heat of the moment defending the honour of a mother figure.  The applicant immediately acknowledged his involvement in the commission of the offence, expressed remorse and pleaded guilty at an early stage.  He is a young man with no prior criminal history, an excellent work history and good prospects of rehabilitation.

Mr Devlin also emphasises that there should have been greater parity between the sentence imposed on Tayfun Ekinci and this offender in terms of the recommendation for parole.

A number of comparative sentences were mentioned by
Mr Devlin in his written outline but most of these are not comparable for they do not relate to the offence of doing grievous bodily harm with intent.

In R v. Major 136 of 2000, [2000] QCA 293, Major, a 27 year old woman with no prior criminal history pleaded guilty to doing grievous bodily harm with intent and was sentenced to six years' imprisonment with eligibility for parole after
18 months.  The complainant was a male with whom she had had a sexual relationship.  She believed he had transmitted a sexual disease to her and stabbed him three times to the abdomen, twice to the left upper thigh and once to his penis and scrotum.  Surgery was necessary to save his life.  The Court noted there was premeditation and lack of remorse involved in the crime.  The Judge declined to declare the applicant guilty of having committed a serious violent offence.  The Chief Justice, in his reasons, noted that the sentence was in "no degree manifestly excessive" and that the recommendation could be seen as "generous".  Pincus JA, with whom Williams J, as he then was, agreed, saw the recommendation, if anything, as "too lenient".

In R v. Beer, [2000] QCA 193, Beer was convicted after a three day trial of doing grievous bodily harm with intent but acquitted of attempted murder. He was sentenced to eight years' imprisonment with a declaration that he was convicted of a serious violent offence. Beer's son had lived with the complainant's stepdaughter who wished to end the relationship. She returned to the flat where she had lived with the applicant with her stepfather to collect her possessions. The complainant was a 39 year old security officer. The applicant was 60 years old and of smaller stature than the complainant. A fracas resulted in which Beer stabbed the complainant in the abdomen. The complainant was hospitalised for six days and required surgery. He suffered three wounds which left a 13 centimetre long scar to his throat and two scars of
16 centimetres and 17 centimetres to his abdomen.  As a result he had a hollow in the left side of his throat and a lump on the right side of his throat caused by damaged muscle.  He was off work for five weeks and at the time of sentence continued to experience difficulty in swallowing, but had otherwise physically recovered from his life-threatening injuries, although he and his family had undertaken counselling.  After considering the sentences imposed in Brown, CA 155 of 1996, 26 July 1996, and Thompson, CA 575 of 1996, 16 April 1997, the Court set aside the sentence and instead imposed a sentence of seven years imprisonment with no declaration.  Beer had some prior convictions for violence almost 25 years earlier, was 60 years old and did not have the mitigating benefit of an early plea of guilty or remorse.

Beer and Major are, in my view, offences of comparable violence to these.  Unlike Major this applicant was only 18 at the time of the offence and unlike Beer this applicant pleaded guilty and was much younger with apparently significant rehabilitative prospects. 

Whilst a heavier sentence than that imposed upon Tayfun Ekinci was warranted in this case because the applicant actually caused the injuries to the complainant, Tayfun Ekinci's conduct could just have easily caused the same injuries.  The mitigating factors that applied in Tayfun Ekinci's case applied equally in this offender's case.

Whilst the offence had extremely serious aspects and this Court and the community will not tolerate the resort to knives to settle disputes, I am persuaded that the learned sentencing Judge did not give sufficient recognition to the mitigating factors in this case, especially the rehabilitative prospects of a young first offender who has pleaded guilty. 

In my view, whilst the head sentence was plainly within range, the learned sentencing Judge erred in not granting a recommendation for eligibility for parole after two years. I would grant the application for leave to appeal against sentence and vary the sentence imposed by adding a recommendation for eligibility for parole after two years.

DAVIES JA:  I agree.

THOMAS JA:  I am of a different view.  I will refer to the applicant as Din and to his co-offender as Ekinci. 
Mr Devlin argued two points.  The first is that there was a lack of parity between the sentence imposed on Ekinci which was five years with a recommendation for parole after two years.

Each had been armed with a knife and had made lunging motions. However, it was the applicant who did the harm and landed the blows.  The difference cannot be explained as fortuitous.  The applicant had a degree of control in the situation as I will shortly indicate and his criminal responsibility so far as sentence is concerned is, I think, greater than that of the co-offender in that he was the active person who caused the actual harm.

In these circumstances I do not think that one can discern any true lack of parity or cause for a sense of grievance in the differential that has been made between the two sentences. 

As to the question whether a sentence of six years is excessive in the circumstances of this case, the salient factor is that this was a deliberate stabbing against a background of previous acts of aggression by the applicant and Ekinci towards the parents of the complainant.  The attack was preceded by a threat to kill the complainant's father.  Ekinci and Din then deliberately armed themselves with knives and in due course proceeded to attack the complainant after being told to put the knives down.

Din succeeded in inflicting a slash wound that exposed the complainant's intestines.  When urged by Ozhan Ekinci to stab him again he did so, stabbing the complainant in the right leg. 

I am particularly concerned not to set too low a tariff for grievous bodily harm cases where a knife is deliberately used as a weapon.  I think that the utmost deterrence is necessary and that there is also a strong element of personal deterrence that is necessary in the present case.

A sentence of six to eight years as contended by the counsel for the Crown in this matter was, I think, reasonably open, even for a young person with no previous convictions and with reasonable antecedents.  I do not think it is open to think that the plea of guilty was not properly taken into account by the learned sentencing Judge.

Accordingly I am unable to bring myself to the view that the sentence was manifestly excessive and I would refuse the application.

THE PRESIDENT:  The order is as I have proposed earlier.

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