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

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…

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 R v Din

Details

AGLC: R v Din [2001] QCA 265
Case: [2001] QCA 265
Decision Date: 13 July 2001

CaseChat Overview and Summary

The case of R v Din involved the applicant, Bilal Din, who pleaded guilty to two counts of grievous bodily harm with intent. The Court of Appeal was asked to consider whether the sentence imposed by the trial judge was manifestly excessive. Din was jointly charged with Ozhan Ekinci and Tayfun Ekinci. Tayfun Ekinci was sentenced to five years' imprisonment with a recommendation for early release on parole after two years, while Ozhan Ekinci was sentenced to three years' probation with a special condition that she undertake medical, psychiatric, and psychological treatment. Din was sentenced to six years' imprisonment with 474 days of pre-sentence custody deemed to be time already served under the sentence, with no recommendation for early release on parole. The appeal centred on whether the sentence was manifestly excessive, particularly in light of the sentencing of Tayfun Ekinci.

The legal issues before the court were whether the sentence imposed on Din was manifestly excessive and whether there should have been greater parity between the sentence imposed on Din and that of Tayfun Ekinci in terms of the recommendation for parole. The court considered the nature and circumstances of the offence, the culpability of the offender, and the mitigating factors, such as Din's age, lack of prior convictions, and good work history. The court also examined the sentences imposed in other cases of grievous bodily harm with intent to determine if the sentence in this case was within the appropriate range.

The Court of Appeal held that the sentence imposed on Din was not manifestly excessive, but there was an error in not granting a recommendation for eligibility for parole after two years. President McMurdo JA and Davies JA held that the sentence was within the appropriate range, but the sentencing judge did not give sufficient recognition to the mitigating factors in this case, especially the rehabilitative prospects of a young first offender who had pleaded guilty. Thomas JA dissented, stating that the sentence was reasonably open for a young person with no previous convictions and that the plea of guilty was properly taken into account by the learned sentencing Judge.

Ultimately, the Court of Appeal granted leave to appeal against sentence and varied the sentence imposed by adding a recommendation for eligibility for parole after two years. The order was as proposed by President McMurdo JA.

Orders