DPP v Aslan [2010] VSC 518

Supreme Court of Victoria|2010-11-16|Before: WHELAN J

CRIMINAL LAW - Sentence - Recklessly causing serious injury - "Glassing" - 2 years 6 months' imprisonment with a non-parole period of 12 months.

1 Baran Aslan, in the early hours of the morning on 10 May 2009, in the course of an argument at a Turkish restaurant where you had been drinking, you slashed the right side of the neck of a male waiter with a broken glass, causing a deep wound and damage to underlying tissues (including blood vessels and nerves) which required hospitalisation and surgical repair.

2 The incident was a typical example of a particular kind of offence often referred to as "glassing". I refer to it as typical because it had these characteristics. It occurred in licensed premises. It was a consequence of alcohol fuelled aggression in disproportionate response to a perceived slight. It involved striking the victim's head with a bottle or a glass. It caused severe lacerations.[1]

3 On 14 May 2009 you left Australia and went to Turkey. You did not return until 19 August 2009. Upon your return, you were arrested by police and interviewed. You were charged with attempted murder. From an early point after your return to Australia you indicated a willingness to plead guilty to a charge of recklessly causing serious injury. On 28 July of this year the prosecution determined to accept that plea. On 18 August 2010 you pleaded guilty to that charge. I heard a plea on your behalf on 12 November 2010.

4 The maximum penalty for the offence to which you have pleaded guilty is 15 years imprisonment.

5 The blow which you struck the waiter that night was a blow with a broken glass. On your plea counsel for the prosecution stated that it was accepted that the glass had been accidentally broken, and that it was not contended by the prosecution that you were aware the glass was broken when you struck the blow. I proceed on that basis. You did know you had a glass in your hand. You did know when you struck the blow that it would probably cause serious injury.

6 You are now 28 years of age. Your parents came to Australia from Turkey in 1975 and in Australia they had four children. You are the youngest. In 1984, when you were two years old, the family returned to Turkey. You and your siblings came back to Australia in 2000. You were then aged 17 years. You had undertaken all of your schooling in Turkey and you could not speak English. Your inability to speak English created difficulties for you in Australia and, in particular, significantly limited your capacity to obtain employment. You have since worked in a Turkish retail outlet, in a factory, and as a labourer.

7 You spent approximately three months in custody on remand after your return to Australia from Turkey in August 2009. You were granted bail on 20 November 2009.

8 On the night of the incident you were with a woman with whom you were then in a relationship. You were not living with her then. You are now living with her and you and she have a baby daughter who is two weeks old. She also has an older daughter from an earlier relationship. The two of you and the two children live together in a rented house in Reservoir.

9 On 4 July 2005 you were convicted at the Melbourne Magistrates' Court of the offence of recklessly causing injury and the offence of being drunk in a public place. For the recklessly causing injury offence you were fined the sum of $600. Both your counsel and counsel for the prosecution gave me an account of the incident which led to those convictions. Those accounts were not the same, but both accounts indicated that the convictions arose out of a late night alcohol related confrontation between you and security personnel at licensed premises.

10 On the plea a psychological report prepared in April 2010 by a psychologist, Hatice Kurtoglu, and four personal references were tendered. The references are from your aunt, from a family friend, and from two employers. They are positive in relation to your general character. The report from the psychologist suggests that you have expressed sadness and remorse about what occurred and also expresses the opinion that incarceration is likely to lead to a deterioration in your emotional, cognitive and social functioning.

11 No victim impact statement has been filed. I was told by counsel for the prosecution that the victim was aware of his right to make a statement but that he did not want to do so. It was submitted by your counsel that whilst it is conceded that the injury caused was serious, there is no evidentiary basis for a conclusion that any long term disability or deficit was suffered. I accept that.

12 On your behalf it was submitted that the particular incident was not in the worst category for this kind of offence. Your counsel emphasised the spontaneous nature of your action and the fact that you had not taken up the glass in order to use it as a weapon but that you had had it in your hand when the altercation began and that, as a result of physical confrontation between you and the waiter, the glass accidentally broke before you swung it at the waiter cutting his neck.

13 Your counsel also particularly emphasised your early willingness to plead guilty to the offence of recklessly causing serious injury, and to the admissions which you made in the record of interview. There are admissions in your record of interview. They are not full and clear admissions, but that may be a consequence of language difficulties. I accept that you indicated a willingness to plead guilty to the charge of recklessly causing serious injury from an early point after your return to Australia and your interview by the police.

14 Your counsel submitted that I should take into account the fact that the much more serious offence of attempted murder was "hanging over your head" until July this year when the prosecution indicated that it was willing to accept your offered plea. I accept that.

15 As to your prior conviction, it was put on your behalf that the circumstances and seriousness of that offending differ substantially from the present offence. I accept that this offence is much more serious than that, but in my view there are features of the earlier offending which are a cause for concern. This is the second time that you have committed a violent offence whilst intoxicated. The consequences on this occasion could have been even more serious than they were.

16 It was submitted on your behalf that you have shown genuine remorse. In this respect your counsel relied upon your voluntary return to Australia, the admissions you made in your record of interview, your early indication of a willingness to plead guilty to the charge of recklessly causing serious injury, and the material in the psychological report and the references which he tendered. I accept that you are remorseful for what occurred.

17 Your counsel submitted that you are now in full time employment and in a stable relationship with a new baby. He told me that you have no other matters presently pending.

18 Your counsel submitted that given your remorse, your current situation, and the family support which you have, your prospects of rehabilitation are excellent. I would not describe your prospects of rehabilitation as excellent. I accept that your prospects of rehabilitation are good.

19 Your counsel conceded that general deterrence is a significant sentencing factor and that, given recent Court of Appeal authority, I must impose a sentence of immediate incarceration. He submitted that a non-parole period not greatly in excess of the period in custody which you served between the time of your return from Turkey and the time when you were granted bail would be appropriate.

20 On behalf of the prosecution it was submitted that the appropriate range of sentence would be a head sentence of between two and three years with a non-parole period of between twelve and fifteen months.

21 The Court of Appeal has recently made it very clear that the seriousness and prevalence of this type of offence mean that general deterrence and, where necessary, specific deterrence must be given primacy in the sentencing synthesis.[2] General deterrence is very important here. At the risk of oversimplification, the courts must strive to send this message: glassing means jail.

22 In your case, in my view specific deterrence is also a factor. This is not the first time you have engaged in alcohol related violence.

23 It is of course important that you pleaded guilty and that you indicated a willingness to plead guilty at an early stage. You are entitled to a significant discount for that. I also take into account the other matters put on your behalf by your counsel, subject to the observations I have already made.

24 I have carefully considered sentencing practice in relation to similar offences.[3]

25 For the offence of recklessly causing serious injury I sentence you to 2 years 6 months' imprisonment and I fix a non-parole period of 12 months.

27 Pursuant to s 6AAA of the Sentencing Act I state that the sentence that would have been imposed but for the plea of guilty is a sentence of 4 years with a non-parole period of 2½ years.

[1] Offences of this type have been recently comprehensively dealt with by the Court of Appeal: Winch v The Queen [2010] VSCA 141 ("Winch").

[3] Winch is an obvious and appropriate benchmark in this case. The two incidents were relevantly similar. In both cases the offender has come from a difficult and disadvantaged background. The offender in Winch did not have any prior convictions for violence although he did have an alcohol related prior conviction. Generally the factors in mitigation in Winch seem to me to have been more compelling than the factors here. In particular, the evidence of remorse appears to have been stronger, the prospects of rehabilitation were described as "very good", the steps taken towards reformation there appear to have been more compelling and the references in relation to that offender were exceptional. On the other hand, the impact of the offence on the victim in Winch was very significant, involving potential permanent psychological and physical disability. There is no evidence of an impact of that kind here. Balancing up the factors and addressing also the sentences collated in Winch, it seems to me that a sentence a little under the sentence in Winch properly reflects current sentencing practice. Whilst the mitigating factors in Winch are more compelling than the mitigating factors here, the impact on the victim in Winch was far more significant than the evidence before me suggests that the impact was here.

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