CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal - Murder of infant daughter by father - Plea of guilty - Sentence of life imprisonment with non-parole period of 33 years - Whether head sentence and non-parole period manifestly excessive - Whether judge erred in failing to find causal connection between offending and personality disorder - Application refused

1 The applicant, Ramazan Acar, pleaded guilty to the murder of his daughter, Yazmina. She was, at the time, just six days short of her third birthday. The applicant was sentenced to life imprisonment. A non-parole period of 33 years was fixed. He now seeks leave to appeal against sentence.

2 The applicant contends that both the head sentence and minimum term are manifestly excessive. He further contends that the sentencing judge erred in her application of the principles in R v Verdins[1] by failing to find a causal connection between a personality disorder from which he was then suffering, and his offending.

3 The background facts were as follows. The applicant met the child's mother, Rachelle D'Argent, when they were both in their mid-teens. Their relationship lasted some eight years. It had been a difficult one, marked by the applicant's jealousy, possessiveness, violence and, it appears, drug use.

4 Yazmina was born in November 2007. The applicant and Ms D'Argent were then both aged 20. They finally separated in September 2010. Shortly afterwards, Ms D'Argent obtained an intervention order against the applicant. There was evidence that he had threatened her, and that she was frightened that he would harm both her and their daughter.

5 Within a week or so, the applicant began telephoning Ms D'Argent, in clear breach of the intervention order. When spoken to by police, he told them that he was motivated by a desire to see Yazmina.

6 Further breaches of the order were then said to have occurred. Ms D'Argent reported these to the police. She subsequently denied the applicant access to their daughter. Nonetheless, he continued to harass her. He told her, at one point, that he believed that he was going to be imprisoned for some traffic offences, and that he

wanted to see Yazmina before that occurred. Ms D'Argent indicated that he could see her, but only on a fortnightly basis.

7 In November 2010, Ms D'Argent allowed the applicant to have Yazmina stay with him overnight at the family home, where he was then living with his parents. Apparently, the visit went well, and Yazmina was returned the following afternoon.

8 Thereafter, the applicant recommenced telephoning Ms D'Argent repeatedly. She asked him to desist.

9 A few days later, on the morning of 17 November 2010, the applicant resigned from his job as a labourer. At 1:00pm, he sent a text to Ms D'Argent, effectively telling her that he proposed to kill himself. About an hour later, he sent another message along the same lines.

10 Then, at about 3:30pm that day, the applicant was seen driving erratically along the Monash Freeway, some three kilometres or so from where Ms D'Argent lived. It seems that he made threatening gestures to the driver of another vehicle. These were reported to the police. Moments later he sent another text to Ms D'Argent, this time asking to speak to Yazmina. Ms D'Argent replied that Yazmina was still at crèche, but that she would be home in about 20 minutes.

11 The applicant then drove to the front of Ms D'Argent's house. He told her that he wanted to see his daughter. He produced a large knife, described as about 30 centimetres long. He said that he had had enough of life, and indicated where he had earlier slashed his abdomen and his arms.

12 Ms D'Argent and a friend then collected Yazmina from crèche. Ms D'Argent told that friend that she thought the applicant was intoxicated. By the time Yazmina arrived home, the applicant had gone. For whatever reason, Ms D'Argent contacted him and he returned. Yazmina immediately ran to him, and he put her on his lap. He played with her for about 20 minutes.

13 At about 6:15pm, Ms D'Argent asked the applicant to leave. He indicated that he would like to take Yazmina to a milk bar close by, in order to buy her a chocolate treat. Ms D'Argent, somewhat reluctantly, agreed. That was the last time she saw her daughter alive.

14 There then followed a series of texts and telephone calls between the applicant and Ms D'Argent. In summary, these reflected escalating anger on his part. To take but one example, at one stage the applicant spoke of 'pay back'. He asked Ms D'Argent whether she would prefer that he kill Yazmina by driving into an oncoming vehicle, or that he cut her throat with the knife he had earlier shown her.

15 At 7:23pm, the applicant posted on his Facebook page, 'Bout 2 kill ma kid'. At 7:32pm, he posted another message, 'It's ova I did it'.

16 The police were then called. About an hour later, the applicant again telephoned Ms D'Argent. On this occasion he asked her whether she had any last words for her child. At that point, Yazmina came on the line. She said to her mother, 'I love you'. Two minutes later, the applicant texted, 'Too lat cya'.

17 At 8:47pm, the applicant telephoned Ms D'Argent and said:

I've killed her. She's just lying there next to me in her leggings her top covered in blood and her guts are hanging out.

18 Ms D'Argent responded by telling the applicant not to be stupid, and asked him to tell her where Yazmina was. He replied:

It doesn't matter anymore. All I need to know is should I dump the body somewhere and how much time do you think I'm going to get for this? I killed my daughter, man, I killed her. I killed her to get back at you. I don't care. Even if I go behind bars, I know that you are suffering. I've killed her. I swear to God, I killed her. You know those shows on Foxtel that you watch on the crime channel with the psycho people? I feel like one of them now. Seriously, I'm sorry.

19 There were several subsequent communications between the applicant and Ms D'Argent, but I need not set them out. It is sufficient for present purposes to note simply that the applicant turned himself in to the police, and confessed to what he had done. He also took them to where he had put Yazmina's body and disposed of the knife.

20 When asked why he had killed his daughter, the applicant replied:

Just put me in a room to rot. That dog's psycho, you should put me in there with them. I deserve a belting. Can you give me a belting? Can you guys give me a hiding please, and I want to die now, I've always wanted to do it.

No, I want to live so I could suffer the pain for it. ... Ah, this is scary, what the fuck did I do? Why?

22 Yazmina's body was found in scrubland at the Greenvale Reservoir Reserve. She was lying on her right side, fully clothed. She had multiple stabs wounds to her chest and abdomen. The wounds were so severe that her organs were exposed.

23 At the time of sentence, the applicant was aged 24. It was said on his behalf that he was one of five children, born of Turkish parents. His father came to this country as a very young boy. At the age of 17, he returned to Turkey and married the applicant's mother who was aged only 16 at the time. It was said that both parents were decent, hard working and respectable people.

24 The applicant was educated to Year 9. He left school at 15 and went to work at a local panel beater. He then did some house painting and roof tiling.

25 It seems that there was an incident involving the applicant and Ms D'Argent in January 2006 in the course of which he stabbed himself with a steak knife, and threatened her by holding a knife to her throat. The police were called and capsicum spray was used to subdue him.

26 In February 2007, the applicant was convicted of assault, threat to kill, threat to cause serious injury and criminal damage. He was given a three month suspended sentence. He breached that suspended sentence in June 2008, and was imprisoned as a consequence.

27 The applicant at some point underwent counselling in order to deal with his propensity towards family violence. Plainly, that counselling was unsuccessful. In November 2009, he was again convicted of violence towards Ms D'Argent. On that occasion he was sentenced to two months' imprisonment, wholly suspended.

28 In dealing with the proposed grounds of appeal, it is convenient to deal first with the Verdins point. Counsel for the applicant submitted that the sentencing judge had erred in failing to find evidence of a causal link between what was said to be a significant personality disorder, and the offence in question. He referred in particular to what had been said by a clinical psychiatrist, Dr Danny Sullivan, in a report to the Court, and what Dr Sullivan said on the plea.

29 It is necessary, in order to deal with this ground, to set out in some detail precisely what Dr Sullivan did say in his report. He said:

[52] Mr Acar appears to have a mixed personality disorder with borderline, antisocial and narcissistic traits. He describes longstanding emotional volatility and difficulty constraining his anger. He has resorted to substance use to deal with mood problems. He has a propensity to self-harm. He described a preoccupation with 'thug life'. He has struggled to maintain a relationship and witness statements describe him in the relationship as domineering, aggressive and entitled.[2]

30 Counsel for the applicant relied heavily upon that passage in support of his Verdins submission. It should be noted, however, that Dr Sullivan went on in his report to say:

[53] There is no sign of significant cognitive impairment. There is no indication of psychotic illness or psychotic symptoms apparent at the time of the alleged offence. He may have had some depressive symptoms although it is difficult to disentangle these from his substance use and intoxication. It is more likely that these reflect difficulties in emotional regulation apparent in someone with a personality disorder.

[54] There were a number of suicidal statements made by Mr Acar in the days preceding the alleged offence. However these were not persistent or pervasive, and although he spoke of killing himself he made no significant attempt at harming himself. Furthermore there were limited associations of expressed suicidal ideation with the killing of his daughter, and there were repeated vengeful statements targeted at his ex-partner, the mother of Yazmina.

[55] I have considered the availability of a mental impairment defence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At the time of the alleged offence Mr Acar appears to have been consumed with hatred of his ex-partner and a desire to punish her for restricting him from access to his daughter despite his violence towards her. There were no psychotic elements to his behaviour at the time although he was clearly intoxicated with alcohol. I believe that Mr Acar was able to reason sensibly about the nature and quality of his conduct, as he texted and sent Facebook messages threatening his partner and indicating that he would kill his daughter. I believe at the time that he was able to reason about the wrongfulness of his conduct as he took a number of measures to evade police contact, to deceive his partner and to taunt her with what he intended to do. I do not believe that a mental impairment defence is available.

31 When Dr Sullivan was questioned on the plea about these aspects of his report, and asked specifically whether he could discern any connection between the applicant's personality disorder and his actions on the day in question, he replied:

Your Honour, I have not been able to distinguish, in simple terms, which aspects of his conduct were simply attributable to his personality and which to substance use and intoxication. I would consider that he was significantly intoxicated and consequently disinhibited, I would consider that his judgment was impaired, and I would attribute that to both personality and to substance use, and I believe that his significant anger at the time was associated with an impairment in his appreciation of the wrongfulness of the conduct, but once more, that is mixed with the effects of substance abuse.

Is there a connection or inter-relationship between substance abuse and the underlying personality disorder or disorders?---Yes, there is. People with personality disorders of some type are more prone to substance abuse, and in particular people with borderline personalities are prone to using substances to modulate their moods, they are prone to using substances to ameliorate the effects of negative mood states and they are perhaps more prone to becoming dependent on or abusing substances chaotically.

And do you see that with respect to Mr Acar?---Yes. Mr Acar gave a history of some limited efforts to address his substance abuse, but it was clear from the witness statements that in the days preceding the events, he had engaged in disordered behaviour while intoxicated, at times he had fled from the scene and returned to further substance abuse and the impression was that when distressed, his response was to access substances and to look at those to address his distress.

In terms of the personality disorder or disorders that you have diagnosed, is one of the traits of those a difficulty with emotional regulation?---Yes. Some people would argue that in borderline personality, that's one of the core deficits, difficulties in handling anger, difficulties in handling feelings of being alone, prevailing feelings of sadness and, at times, the sense that emotions change rapidly without reflecting upon external circumstances.

And do you see that deficit contributing to his offending behaviour here?---I certainly think that anger was a significant part of the offending behaviour,

and I think that his inability to find more constructive ways of manifesting his anger or of addressing his anger were germane to the offence.

32 When asked again whether there was, in his opinion, a causal link between the applicant's underlying personality disorder and the commission of the offence, Dr Sullivan replied:

Yes, I think that causal chain is mediated through his inability to manage his anger, so that is difficulties in anger control were a critical part of the offence and underlying the difficulties in emotional control were both his personality disorder and substance use.

33 For the sake of completeness, it should be noted that, under cross-examination, Dr Sullivan's evidence was as follows:

Dr Sullivan, do you say that this man had no sign of significant cognitive impairment?---Yes, that's correct.

And there was no indication of psychotic illness or psychotic symptoms apparent at the time of the alleged offence?---Yes, that's correct.

And this man was capable of understanding that to stab his child multiple times was wrong?---Yes.

His situation was that he was consumed, was he not, with a hatred for his ex-partner?---Yes, it would appear so.

You say in paragraphs 54, 5 and 6 there were repeated vengeful statements targeted at the ex-partner?---Yes.

That he was consumed with hatred of his ex-partner and desired to punish her for restricting him from access to his daughter, despite his violence towards her?---Yes.

And that he was consumed with hatred for his ex-partner and sought to punish her, all of those are statements you made?---Yes.

And that's the overwhelming picture here, isn't it, a man who had just become so consumed with punishing his ex-partner, that everything else falls by the wayside?---Yes, that's my perception.

Notwithstanding that he is capable of understanding that to kill the child was wrong?---As I said, I believed that there was an impairment of his appreciation of the wrongfulness but not to the level that he did not understand that it was wrong.

Did he indicate to you, Doctor, any insight into the fear or, to use his words, worriedness of his child, the effect of - - -?---Sorry, can you repeat the question with the microphone.

Sorry, I will start again. I put that badly. In paragraph 46 of your history, you say, 'When he determined to kill his daughter, he stated that she was playing outside the car and he exited the car with the knife. He said it felt slomo. He stated he remembered a feeling of rage and noted a worried look in her eyes, but was unable to describe more', that's the history he gave you, isn't it?---Yes, that's correct.

Did he indicate any insight into the feelings or effect on his child of him coming towards her with a knife?---Mr Acar was able to express at that stage that he knew he was doing something dreadfully wrong and he was able to express - he clearly had difficulty talking about the event and I took that as an indication of his awareness of how egregiously wrong his conduct was at that time.

34 When the sentencing judge came to deal with the Verdins issue, her Honour had this to say:

I have had due regard to the principles of Verdins and Tsiaras' case and have come to the view that they are not here applicable so as to reduce your moral culpability for the offending or to effect a moderation in specific and general deterrence. The law allows that a disorder falling short of serious psychiatric illness may operate to reduce the moral culpability for the offending and consequently considerations of general and specific deterrence may be moderated or eliminated in the appropriate case. In order to attract the application of the principles, there must be a causal connection between the offending conduct and the disorder.

Dr Sullivan cannot say whether your anger, which, he said, was a critical part of your offending, was due to your intoxication or your personality, and in those circumstances I am satisfied that a causal connection has not been established. In Dr Sullivan's opinion, your judgment was impaired by reason of your intoxication, you knew what you were doing and, although consumed by hatred, you knew it was wrong. I am satisfied that what was impairing your judgment at the time was your hatred and your desire for revenge in the context of you having consumed alcohol. As such, considerations which may apply to reduce your moral culpability are here absent. It follows then that you remain an appropriate vehicle for general and specific deterrence. There is nothing in your presentation, that is, in the nature and the severity of your personality disorder, which would lead to a moderation of specific and general deterrence. Indeed, in the circumstances before the Court, those two sentencing considerations carry very considerable weight. Further, there was no evidence or submission made that by reason of your personality disorder, a sentence of imprisonment would weigh more heavily upon you or would have an adverse effect upon your mental health. Accordingly, I am satisfied that the principles of Verdins and Tsiaras are not here applicable to either reduce the seriousness of your offending, your moral culpability in respect of it or to moderate considerations of general and specific deterrence.

Certainly, I accept the evidence that you are an immature young man with very fixed views. You have had problems with anger and, indeed, you seek emotional release from self-harming and I accept that in the days leading up to this offence you had been drinking heavily, at times smoking cannabis, and appeared to be suffering a degree of emotional turmoil and I take into account all of those matters.[3]

35 In R v Zander,[4] this Court observed that:

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she had suffered or is suffering from an mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.[5]

36 It is trite law that the onus of establishing a causal link between the offending, and any personality disorder or other mental condition from which an offender may have been suffering at the time of the relevant offending, rests squarely upon the defence.

37 If one focuses carefully upon Dr Sullivan's report, together with his evidence on the plea, it is apparent that he was somewhat ambivalent as to whether the applicant's personality disorder had contributed to his actions on the day in question, and if it had, the extent to which it had done so. His immediate response to the question whether there was any such link was to say that he could not distinguish between those aspects of the applicant's conduct which could be attributed to his personality, and those which were the product of substance use and intoxication.

38 Of course Dr Sullivan went on to say, shortly thereafter, that in his opinion the applicant's judgment had been impaired. He said that this could be attributed to 'both personality and to substance use'. However, he was not asked, and he did not say, to what extent each of these factors had contributed to what took place.

39 Subsequently, Dr Sullivan was again asked about the existence of any such link. He largely repeated what he had said earlier, namely that the applicant's inability to control his anger was a critical part of the offence, and that both his personality disorder and substance use had some role to play in his anger management problem. However, the evidence went no further than that.

40 The sentencing judge carefully considered Dr Sullivan's evidence as a whole. She referred specifically to both Verdins and R v Tsiaris.[6] It is plain that she stated the principles laid down in those cases impeccably.

41 Her Honour considered that Dr Sullivan's evidence fell short of establishing that the applicant's anger towards Ms D'Argent was brought about by his personality disorder, as distinct from other factors such as his intoxication and substance abuse. That finding was open to her. She had the advantage of both seeing and hearing Dr Sullivan give evidence, and be cross-examined. Her Honour was in a better position than this Court to determine what weight to accord to that evidence. As she rightly observed, Dr Sullivan's opinion was that the applicant's judgment had been impaired by reason of his intoxication, but that he knew full well what he was doing and, although consumed by hatred, knew that it was wrong.

42 It is also important to note that the applicant did not contend, on the plea, that the second limb of Verdins had any application to his case. In other words, it was not submitted that his time in prison would be made more burdensome by reason of his disorder.

43 That is not to say that the sentencing judge was oblivious to the fact that, in the days leading up to the offence, the applicant had been drinking heavily, smoking cannabis, and was suffering from a degree of emotional turmoil. She referred specifically to these matters, and said that she took them into account. She also referred to the applicant's history of self-harming, and his continual problems with anger and self-control. There is nothing to suggest that she failed to give these matters appropriate weight.

44 Accordingly, I reject the contention that the sentence imposed is vitiated by a failure to pay proper regard to the principles laid down in Verdins.

45 Even if I were wrong in so holding, I would refuse leave to appeal on this Verdins ground. That is because even if that ground were made good, it would be of marginal significance in this case given the extraordinary gravity of this offending. In my opinion, there is no reasonable prospect that the Court of Appeal would impose a less severe sentence upon this applicant than that fixed by the sentencing judge.[7]

46 I turn then to the submission that both the head sentence and the non-parole period were manifestly excessive. In my opinion, that contention cannot reasonably be maintained.

47 This was a brutal and callous murder which, in my view, should be characterised as one of the worst cases of its kind. It was aggravated by the applicant's behaviour towards Ms D'Argent, which was both cruel and sadistic. On any view, the applicant's moral culpability was great, and merited severe punishment.

48 There were some mitigating factors. I accept, as her Honour did, that the applicant was in a state of 'emotional turmoil' shortly before, and at the time, he murdered his daughter. To the extent that it may be relevant, it is also clear that he had consumed a considerable amount of alcohol, and was probably also under the influence of drugs. In addition, he pleaded guilty at an early stage, and was entitled to some credit for having done so.

49 However, all these matters were specifically addressed by her Honour in her sentencing remarks. She indicated, by her s 6AAA declaration,[8] that the plea of guilty had been given some weight. I cannot see any error in the manner in which her Honour dealt with any of the mitigating factors that were present.

50 In my view, it cannot reasonably be contended that a sentence of life imprisonment was not open to be imposed upon the applicant. Nor can it reasonably be contended that a non-parole period of 33 years was beyond the range available to her Honour, stern though such a period may have been. The utterly appalling nature of this crime warranted punishment of that order.

[1] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[3] R v Acar [2011] VSC 310, [58]-[60].

[4] [2009] VSCA 10.

[5] Ibid [29] (Dodds-Streeton JA with whom Nettle JA agreed).

[6] [1996] VicRp 26; [1996] 1 VR 398.

[7] Criminal Procedure Act 2009 s 280(2).

[8] Her Honour declared that, but for the plea of guilty, the Court would have otherwise imposed a sentence of life imprisonment with a non-parole period of 38 years, rather than the 33 years that was ultimately fixed.