Crown v Accused

1 Murat Davsanoglu, on 27 November 2018, you were arraigned and pleaded not guilty to a charge of the murder of Ozlem Karakoc. A trial then commenced before a jury.

2 In the course of the trial, you gave sworn evidence. Your defence to the charge of murder was based on your claim that there was a suicide pact existing between you and the deceased at the time of her death. However, whilst being cross-examined by the Senior Crown Prosecutor on 6 December 2018, you gave answers which indicated a change in your position and your acceptance of your guilt of the charge of murder.

3 On 7 December 2018, at the your counsel's request, you were re-arraigned on the charge of murder and you then pleaded guilty. On 1 May 2019, after some delay and a change of counsel, I heard submissions on behalf of the prosecution and from your counsel on the appropriate sentence to be imposed on you.

4 The maximum penalty for murder is life imprisonment. It is now my responsibility to sentence you in relation to this very serious offence.

5 This is yet another case of a man inflicting his will on a woman by the use of fatal violence in her home. Whilst the circumstances of this case are unusual to a degree, in other respects, they are all too familiar. Violence by men against women remains of epidemic proportions, and it simply must be stemmed.

6 At the time of her death on 14 July 2017, Ozlem Karakoc was 34 years of age and you were 42 years of age.

7 From her late teens onwards, she maintained a relationship with you that fluctuated in its intensity. Your relationship with her ultimately ended as her family did not approve; however, the two of you remained in contact. She then began a relationship with another man, which led to marriage and a child.

8 In 2016, the deceased woman was living alone with her child at Wilma Avenue, Dandenong. You re-established the relationship with her, but it was marked by periods of instability. In 2017, you purchased a wedding dress for the deceased and indicated your desire to marry her but, of course, that never eventuated. There was conflicting evidence about the deceased's feelings towards you and the prospect of marriage between you at that time.

9 In February 2017, she commenced a relationship with Ozden Gonullu. In late May or early June of 2017, the deceased and Mr Gonullu apparently decided that they would marry. The deceased was observed by people with whom she associated to be happy about the prospect of marriage to Mr Gonullu. Some three weeks before her death, the deceased and Mr Gonullu became engaged. She informed you of her intention to marry him.

10 On Thursday, 13 July 2017, you went to the deceased's residence at Wilma Avenue, where she and her child were present. Around midnight, the child fell asleep in the bedroom of the deceased. A short time later, you and the deceased apparently had a sexual encounter in the child's bedroom. You and the deceased then moved into the bathroom and, after filling the bathtub with water, you entered the bath with the deceased. Once in the bath, you used force to hold the deceased underwater; preventing her from surfacing until such time as you were satisfied she had died by drowning.

11 It is difficult to know with any certainty when you made the decision to kill the deceased. I sentence you on the basis that, whether or not you considered the possibility of killing her before, you made a spontaneous decision that night; not long before you caused her death.

12 Having killed her, you then removed the naked body of the deceased from the bath and partially dressed her in a pair of grey tracksuit pants. You wrapped her body in a dressing gown and blanket, and placed the body in the boot of your Ford Falcon sedan. You then embarked on a very substantial drive in your car towards the Nullarbor in South Australia because, as you later told police, you intended to dispose of the deceased's body into the ocean. You claimed this was in accordance with the deceased's wishes.

13 In the meantime, you drove with the deceased's body in your vehicle from Melbourne to South Australia. From closed-circuit television installations, your vehicle was observed at various points along the way. On Saturday, 15 July, you were recorded on the Murray Bridge Bunning's closed-circuit television purchasing two knives. You later used one of those knives to inflict two superficial incisions to your left wrist. You treated this self-inflicted injury with tissue paper and covered it with band aids purchased from a local service station.

14 In my view, the injuries you inflicted on yourself did not represent a genuine attempt to kill yourself but, rather, a means for you to explain your involvement in the killing of the deceased by reference to a so-called suicide pact.

15 Later on Monday, 17 July, you changed your mind about the trip to the Nullabor. With the body of the deceased still in the boot of your car, you were observed travelling back towards the Victorian border. After you returned to Melbourne, you deposited the deceased's body in the garage of an unoccupied property that you had previously leased.

16 That evening, you contacted an associate and arranged to meet him in Coburg North. During that meeting, you discussed your involvement in the killing of the deceased. Your associate advised you to talk to a lawyer and turn yourself into the police.

17 You later met with members of your family and friends, and again confessed to killing the deceased. You told them that the deceased had told you to kill her and that you had "lost it". You also claimed that you had endeavoured to kill yourself "but it didn't work". Your family observed the bandage on your left wrist.

18 Around 11.00pm on 17 July 2017, you attended the Fawkner Police Station together with a legal advisor and met with homicide investigators. You were formally interviewed the following day and, in the course of the interview, described the fact that you and the deceased had been in a sexual relationship for about 18 years. You said that you and she were "just boyfriend and girlfriend", and that the relationship continued even when she was married. You told police that the deceased then started a relationship with a male she worked with, Salih Gonullu and with his son, Ozden. You gave conflicting evidence on your feelings towards the deceased's relationships with other men; at times saying you were "flipping out" or, conversely, that "all was good."

19 Ultimately, what you sought to establish in the interview with police was that you and the deceased had entered into a suicide pact. You claimed that the deceased first proposed the suicide pact in February 2017. You assented because you "were always in love...[and] were always there for each other." You told police that the deceased asked you to obtain a firearm to effect the suicide pact. After you were unable to do so, you said the plan changed and you were to drown the deceased, with which you claimed she agreed.

20 You admitted to investigators that you used your body weight to hold the deceased under water even whilst she began to kick and struggle. You also claimed that you later tried to cut yourself with a box cutter, but not in any way to sufficiently cause fatal injuries to yourself.

21 From the post-mortem carried out on the deceased, the pathologist, Dr Lynch, concluded that the cause of death was undetermined. However, Dr Lynch added comments indicating that the autopsy findings were consistent with, but not specific for, death as a consequence of drowning. He observed that the deceased also had bruising to her face, on both arms and legs, the back of her right hand and fingers, and across her shoulder blades. The injuries to her shoulder blades were consistent with an individual being forcefully held down in the bathtub. Further, fingernail scrapings taken from the hands of the deceased were analysed. You were a contributor to the DNA extracted from those scrapings; simply indicating that there had been a struggle.

22 Pursuant to s 6B of the Crimes Act 1958 (Vic), if the jury had been satisfied that your acts, which caused the death of the deceased, were done pursuant to a suicide pact, then a verdict of manslaughter might have been returned. That was the basis on which you conducted the trial until you were cross-examined by the prosecutor near the end of your trial and, at which point, you abandoned this claim.

23 There is, of course, no question that the offence is serious. As I discussed with your counsel during the course of the plea, what makes this offence so serious is that it represented your endeavour, through the use of fatal violence, to control the movements of the deceased, and to overpower her rejection of you and your relationship. As the Court of Appeal said in Felicite:

[19] Allowance has sometimes been made for the fact that a murder committed on the spur of the moment in a domestic environment as a consequence of a volatile mixture of emotions, whether or not in response to what was previously recognised as provocation in law, may attract a lesser sentence. The existence of great emotional strain within a domestic or spousal relationship which plays upon the offender's emotional susceptibilities and results in a spontaneous act may bear upon the offender's degree of criminality. But murders that occur in such circumstances are not to be approached as though they fall into a discrete and less serious category of the offence.

[20] The taking of a domestic partner's life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies' abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course.[1]

24 The Court went on to note that the sentencing principles of general deterrence, denunciation and just punishment would usually be given primacy in such a sentence.

25 In this case, you killed the deceased in circumstances where she intended to cease her relationship with you and pursue another with Ozden Gonullu, whom she had decided to marry. You were aware of her vulnerabilities and the trust she had placed in you. The means by which you caused her death must have been terrifying for her and required a significant degree of force, given that it appears she struggled against your efforts. Although there was no history of violence in your relationship with the deceased, the principles outlined in Felicite remain significant.

26 Further, your offending is aggravated by the fact that this killing occurred in the deceased's home whilst a child was sleeping in a nearby room. That was of no consequence for you in deciding to kill the deceased. Then, having done that, you abandoned the child when, placing the body of the deceased in your vehicle, you drove off to South Australia. It was actually on this topic that you decided to abandon your defence of a suicide pact as follows:

You obviously weren't thinking of [the child], were you?---I was thinking of [the child], yes, but not at that time.

You were? So you were prepared to kill [the child]'s mother?---No.

You weren't thinking of [the child] at all, were you?---No. Miss, you don't need to go any further? I just snapped that night, okay, that's it.

Pardon?---I just snapped that night and that's it.

You killed her?---Yes.[2]

27 The nature and gravity of your offending therefore requires the imposition of significant punishment.

28 On the hearing of your plea, I received a number of victim impact statements. They were from Ozden Gonullu, Anne Heslop, Mehmet Incekli, Samim Ozerkan and Sinem Ozerkan.

29 Each of these people had a strong link to the deceased woman. Each of them has described the dramatic effect of her death, and each described severe emotional impacts that will be with them for some considerable time as a result of what you have done.

30 I have taken these victim impact statements into account in determining the sentence that should be imposed on you.

31 Your plea of guilty in this matter was made in the most unusual of circumstances. As I have already described, at your trial you elected to give sworn evidence from the witness box in support of your claim that you and the deceased had made a suicide pact. However, as you were being cross-examined by the prosecutor, you appeared to abandon this explanation for your involvement in the death of the deceased, and accept that you "snapped" and kill the deceased. Following that confession, proceedings concluded for the day. The following day, your counsel asked that you be re-arraigned, and you pleaded guilty to murder.

32 At the time that you entered that plea, it appeared to be a recognition of your responsibility for what had occurred and acceptance of your guilt on the charge of murder. The submissions made on your behalf in the course of the plea hearing were that your confession was indicative of a degree of remorse.

33 However, the submissions made by the prosecution on that topic raise some doubt as to whether that remains your state of mind. Whether or not your plea of guilty was a sign of your remorse over the death of the deceased is extremely difficult for me to determine.

34 It may have been as a result of some element of remorse at the time that you made that plea, but it appears that may not have continued. As such, and unusually, your plea of guilty renders less sentencing benefit to you than it would have if you had pleaded at a much earlier time or if I was satisfied it was a sign of your continuing remorse.

35 You are now 44 years of age, having been born in Turkey on 20 June 1975, and are one of four children. When you were a young child, your parents came to Australia while you remained in Turkey. Until the age of 11, when you finally moved to Australia, you were parented by your grandmother. Once in Australia, your home life was described as unhappy and marred by domestic violence. You were sent back to Turkey at age 13, but returned to Australia shortly after .You lived in foster homes and, generally, as a ward of the State until your late teens.

36 You did not receive any formal education in Australia as a result of interruptions caused by your father or relocations to different fosters homes. Despite having no formal or vocational education, you began working at age 18 and, until your arrest in relation to this matter, you have been employed throughout that time.

37 You have largely led a law-abiding life. I am told that you have one prior matter, which, it was argued, was dated and of little relevance to this matter. You have no prior convictions for violence.

38 Bearing in mind that you are to be sentenced on the basis that your offending was more spontaneous than planned, I have no reason to believe that your prospects for rehabilitation are anything other than positive. In addition, your lack of prior criminal history of any consequence and your steady employment throughout your adult life both militate in favour of your prospects being satisfactory.

39 The offence of murder is an extremely serious offence; particularly when it is committed in circumstances such as these. You breached the trust of this young woman by murdering her in her home in circumstances of an emotional situation and where she was vulnerable. You did it for the purpose of preventing her from ending a relationship with you and pursuing a relationship that she was anxious to pursue. You used violence as a means to control a woman that you were in a romantic relationship with. Therefore, just punishment and denunciation of your conduct are important considerations.[3] It is also important that the sentence imposed on you be one that will have the effect of deterring other people from committing offences of the same or similar character. As I have already indicated, your prospects of rehabilitation are positive. Given the circumstances of this offence and your prior history, in my opinion, the community will be unlikely to require protection from you on your eventual release. However, it is important that you understand the consequences of what you have done as a means of deterring you from ever contemplating such action in the future.

40 As I have already stated, I have taken into account the impact of your offending on those who have filed victim impact statements in determining the sentence that should be imposed on you. I have also taken into account your personal circumstances and your previous character.

41 I note that the amendments to the Sentencing Act 1991 (Vic) (the 'Act') creating a regime of standard sentences do not apply to this case; the offence being committed in July 2017.[4]

42 In all the circumstances, I have come to the conclusion that the sentence that I should impose on you for this offence of murder is a sentence of 23 years' imprisonment. I fix a period of 18 years' imprisonment that must be served by you before you would become eligible to apply for release on parole.

Sentence 6AAA of the Sentencing Act

43 Section 5(2AC)(e) of the Act requires me to have regard to, among other things, whether you pleaded guilty to this offence and the stage at which you did so. Section 6AAA of the Act contemplates that an offender will receive a discount for a plea of guilty. It does not qualify the availability of that discount dependent upon the stage at which the plea is entered. As a matter of policy, pleas of guilty are to be encouraged, even at the late stage at which you entered your plea.

44 In the unusual circumstances of this offence, though I have not imposed a significantly less severe sentence on you because you pleaded guilty to the offence, I nonetheless propose that you receive some discount for your plea. The extent of that discount is affected by the fact that you pleaded guilty following what was effectively a confession by you in the course of being cross-examined at your trial. Also, I am not satisfied that your plea of guilty reflects significant remorse or even significant acceptance of responsibility for your conduct. Therefore, in the circumstances, the sentence that I have imposed on you is only slightly less than the sentence that I would have imposed had the matter proceeded to verdict.

45 Had you not pleaded guilty, I would have sentenced you to 24 years' imprisonment and ordered that you serve a minimum of 19 years' imprisonment before you would have become eligible to apply for release on parole.

46 Pursuant to s 18 of the Act, I declare that the period of your pre-sentence is 677 days, including today. That period is to be reckoned as time already served.

[1] Ron Felicite v The Queen [2011] VSCA 274 (citations omitted).

[2] Transcript of Proceedings, The Queen v Davsanoglu (Supreme Court of Victoria, Lasry J, 6 December 2019) 515.

[3] Ron Felicite v The Queen [2011] VSCA 274, [21].

[4] Sentencing Act 1991 (Vic) s 162(2).