The Queen v Turgay Aksu - [2000] QCA 337

[2000] QCA 337
COURT OF APPEAL

DAVIES JA
AMBROSE J
CHESTERMAN J

CA No 142 of 2000

THE QUEEN

TURGAY AKSU Applicant

BRISBANE

..DATE 17/08/2000

JUDGMENT

DAVIES JA: On 5 March 1998 the applicant pleaded guilty to one count of robbery with actual violence, one of stealing, two of fraud, one of receiving and one of entering a dwelling with intent.

The offences of robbery with violence and entering a dwelling house with intent were committed on 5 September 1996 and were quite serious in nature. The applicant entered the dwelling house of another man. After engaging in a sexual act with him he demanded money from that man. When his demand was refused he tied the man to the toilet and stole various items of his property.

The other offences were committed at various times in 1996 and 1997. They consisted of failing to return four rented videos, failing to pay for fuel that he had put in his motor vehicle at a service station and receiving a stolen Bartercard which he unlawfully used to purchase goods.

For all of these offences the applicant was sentenced to an effective term of imprisonment of two years wholly suspended for an operational period of three years. He was ordered to pay compensation totalling $2,481 in default six months imprisonment.

At the time this sentence was imposed the applicant was 34 years of age having been born on 4 January 1964. He had a number of prior convictions dating from 1982. Two of these were for breaking, entering and stealing, one was for stealing and two were for possession of prohibited drugs and supply of a prohibited drug.

On each of the convictions for drug offences which occurred in 1990 and 1992 the applicant was sentenced to short terms of imprisonment. In the circumstances he was perhaps fortunate not to be obliged to serve a term of actual imprisonment upon his conviction for the offences to which I have just referred.

On 6 March this year the applicant was found by police asleep in his car. His car was searched and in consequence he was convicted the same day in the Magistrates Court of two counts of possession of cannabis and amphetamines, one of unlicensed driving, one of possession of two knives in a public place without reasonable excuse and one of failing to properly dispose of a syringe. For these offences he was sentenced to an effective term of three months imprisonment.

More importantly for present purposes because these offences were committed during the operational period of the suspended sentence imposed in respect of the earlier offences the District Court was obliged to make an order that the applicant serve the whole of the suspended term of imprisonment unless it was of opinion that it would be unjust to do so. The learned District Court Judge made such an order and it is against that order that the applicant seeks leave to appeal.

In deciding whether it would be unjust…

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.

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Details

Case: [2000] QCA 337
Decision Date: 17/08/2000

CaseChat Overview and Summary

In the matter of The Queen v. Turgay Aksu, the applicant, Turgay Aksu, appealed against a District Court order that he serve the entirety of a suspended sentence previously imposed by the Magistrates Court. The applicant had been convicted of various offences including robbery with actual violence, stealing, fraud, receiving, and entering a dwelling with intent. The sentencing judge had imposed a suspended sentence of two years, to be wholly suspended for three years, along with a requirement to pay compensation of $2,481, with a default of six months imprisonment if the compensation was not paid. During the operational period of this suspended sentence, the applicant was found committing further offences, leading to a District Court order that the suspended sentence be served in full.

The legal issue before the Court of Appeal was whether the District Court judge was correct in ordering the applicant to serve the entire suspended sentence, or whether it would be unjust to do so. The court was required to consider the triviality of the subsequent offences, the seriousness of the original offence, and any special circumstances since the original sentence was imposed, as stipulated in section 147(3) of the Penalties and Sentences Act.

The Court of Appeal found that while the subsequent offences were not trivial in the ordinary sense, the length of time the applicant had been of good behaviour, and the disproportion between his culpability for the activating offences and the consequence of activating the whole of the suspended imprisonment, justified an opinion that it would be unjust to order the full suspended sentence to be served. Consequently, the Court of Appeal granted the application, allowed the appeal, set aside the activated term of two years imprisonment, and ordered that the applicant serve a term of 12 months, to be served concurrently with the terms imposed for the failure to pay compensation and the breach offences.

Orders