DPP v Kunduraci [2015] VSC 707

4 At 10.41 pm on Sunday, 8 December 2013, Korinne Aylward sent a text message to Kaitlyn Tucker wishing her good night. The family had celebrated the christening of their youngest child, Grace, the day before and were planning a birthday celebration for her the next day. The children had been put to bed when Korinne had sent the message. She was probably watching television downstairs in her night attire and Gregory Tucker was likely upstairs getting ready for bed. That was the last communication from the family home prior to your intrusion, when you entered the house as a trespasser at around 11 pm.

5 You had parked your trade vehicle in a street at the rear of the premises.

6 You entered the house through the glass bi-fold doors which led into the lounge from the rear yard.

7 You had with you a knife and an imitation pistol, as well as a black backpack.

8 It is likely that your unwelcome intrusion caught Ms Aylward off guard and led to the violent confrontation in which you stabbed her to death whilst she was unarmed and vulnerable.

9 Ms Aylward suffered 10 distinct stab wounds, including defensive wounds on her arms and legs, with one significant knife wound passing through the sternum and the heart which would, on its own, have proved fatal.

10 She died close to where the stabbing occurred in the vicinity of the rear bi-fold doors where you entered the premises.

11 It is probable that upon hearing a violent confrontation, Mr Tucker came downstairs to her rescue, but was then also attacked and stabbed by you near the stairs, where his blood was detected, but also near the bi-fold doors where cast off bloodstains were detected.

12 Mr Tucker was stabbed 13 times, with many wounds to his vital organs and a wound through the sternum and heart similar to that inflicted on his wife.

13 Mr Tucker's blood had also pooled outside in the rear courtyard, suggesting that he may have moved outside briefly whilst bleeding, before ultimately collapsing in close proximity to Ms Aylward.

14 Blood stains suggest that you left the premises after entering the downstairs bathroom, walking down the hall to the front door which was internally deadlocked, then returning to the rear bi-fold doors, exiting through the garage stairs and out the garage door leading onto the driveway, where you then walked south on Darling Street to Eglinton Street and then Bowen Street before returning to the premises.

15 You were seen by witnesses, covered in blood and walking quickly past them, on Eglinton Street. There was another sighting of you by further witnesses at the corner of Holmes Street and Darling Street at 11.15 pm.

16 You sent a phone text to your flat mate, Mr Hakan Kayar, at 11.18 pm, stating that:

I messed up my situation and your situation too. I tried to fix it but I couldn't. Don't call me, don't message me. The car is at the roundabout on the left side on Darling Street. When you're available come and get it.[3]

17 After you left the premises, you phoned '000' at 11.19 pm and told the operator you had gone to the house to get money and been involved in a fight and that you were bleeding from your hand. You did not specifically mention the stabbings to the operator, although you implied that something serious had occurred and that police were needed.[4]

18 Police attended at 11.35 pm and saw you sitting out the front of the house covered in blood.

19 They quickly entered the home through the back door and found both of the deceased already dead and lying on the floor near the rear doors.

21 The murder weapon, a bloodied Arcosteel kitchen knife, was found discarded in the rear yard and a broken plastic imitation pistol was found at the base of the stairs inside.

22 The backpack was found discarded in the hallway near the children's bedrooms. When it was recovered by police, the backpack was found to contain a can of energy drink, an invoice book for the plastering company that you worked for, a roll of duct tape, a packet of cable ties, two sets of cable ties linked in a fashion similar to handcuffs, two plastic bags labelled 'patient' clothing, a trigger spray bottle pre-filled with petrol and a set of keys with a remote plate.

23 Police officers rescued the children, taking care to shield them from what had taken place.

24 A further text message was sent by you to Mr Kayar at 11.27 pm stating: 'Hi to everyone that knows me and tell them to forgive me.'[5]

25 Mr Kayar phoned you in response and you told him: 'I messed up, I couldn't fix it. I came to Greg's house to ask my money [sic], they tried to fight me .... I had to kill them.'[6]

26 I do not accept that you were invited to the home to discuss an outstanding plastering dispute. The dispute was over as far as Mr Tucker and Ms Aylward were concerned.[7]

27 Attempts by mutual associates to mediate the dispute had failed and you developed a serious grudge against the deceased.[8]

28 In reality you had gone to the premises uninvited, with the premeditated intention to engage in armed and violent confrontation.

29 The carriage of deadly weapons and the items in your backpack were evidence of your plan.

30 Regardless of whether or not you planned in advance of the visit to kill both of your victims, which is a matter about which I cannot be certain, you were nevertheless obsessed with a desire to avenge a perceived wrong. Even if your original plan did not involve killing your victims, the evidence establishes that you gave no quarter to either of your victims from the moment you entered their home.

31 It appears that your actions were the product of obsessive brooding over the plastering debt. Whatever your anterior plan was, it was quickly overtaken by irrational and violent anger the moment you entered the home. Thereafter, any antecedent planning was abandoned.

32 The couple were murdered a short distance from the bedrooms occupied by their small children.

33 The eldest child, Callum, could easily have walked into the scene of carnage. As it happened, Callum was found by police sitting in his bed, and did not appear to know what had happened.[9]

34 Nevertheless, the presence of the children nearby aggravates the seriousness of your offending.

35 Your counsel accepted on your behalf that your terrible and grave crimes gave rise to tragic and devastating consequences. This was undoubtedly true.

36 The deliberate murder of two parents within the haven of their family home, whilst their three children were nearby in their beds was criminal conduct of utmost gravity.

37 The number and location of wounds on both deceased bespeak a determination by you to ensure they would die at your hands once the attack began. Unarmed and vulnerable, they stood no chance of escaping your cruel attack.

38 Your actions orphaned three young children: Callum, aged five; Ryan, aged three; and Grace, who was only two years old.

39 Gregory Tucker's three adult children, Megan, Brenton and Kaitlyn, have also lost their father and stepmother by your actions.

40 Unfathomable grief and anguish has been wrought upon the entire extended family of Korinne and Gregory. That family must now strive to provide the love and care that Korinne and Gregory would have otherwise given to Callum, Ryan and Grace.

41 The Court has received Victim Impact Statements from the adult children and step children of Gregory Tucker and Korinne Aylward, including Kaitlyn Tucker, Megan Tucker, Brenton Tucker, and also from the partners of the children, Christopher Jones and Maya Kalinowski. The siblings of Gregory and Korinne, Jan Coventry (sister of Gregory), Maria Aylward and Katelyn Dolman (sisters of Korinne), and Katelyn's husband, Matt Dolman, also provided Victim Impact Statements. In addition, the surviving parents of Gregory and Korinne provided Victim Impact Statements: Beverly Taylor (mother of Gregory) and Gavin Aylward (father of Korinne). Lynne Nunan, Gregory Tucker's former wife, who is helping raise the three children, also provided a Victim Impact Statement.[10]

42 A powerful message was conveyed through these statements that the lives of those left behind by the deaths of Gregory Tucker and Korinne Aylward have been changed forever. Family members provided a picture of Gregory and Korinne as a happy and vibrant couple. Gregory was a respected businessman running a business which gave employment to his son, Brenton. He was a good father to all his children. Korinne was described as a strong, hard working and fun-loving person.

43 The Victim Impact Statements portrayed the shock experienced in the aftermath of the murders and the grievous sadness of those lamenting the loss experienced by the three small children, as well as the personal loss experienced by each of the family members who provided statements. The statements spoke of the ripple effect of your actions, which have impacted all of the family in so many different ways.

44 Your actions have also dramatically affected their sense of personal safety. There was a fear that your actions would overshadow their lives forever.

45 The family spoke of striving to keep the memory of Gregory and Korinne alive to the children and of needing to reassure the children that they were and are loved. The extended family have made every possible sacrifice to ensure that objective.

46 You have one previous conviction for a serious violent offence.

47 In February 2010, you violently attacked and threatened to kill your former partner, including hitting her several times with a belt, kicking her and causing her to fall to the ground.[11] You were sentenced to 6 months' imprisonment, suspended for 12 months.

48 As a result of your prior conviction and imprisonment for threat to kill, you must be sentenced for these murders as a serious violent offender under Pt 2A of the Sentencing Act 1991 (Vic) (the 'Act').[12]

49 You are 46 years of age, Turkish born, and arrived in Australia in 1996.

50 You had an unfortunate childhood, suffering severe physical abuse from your father up to the age of 9. You then left home to live with a cousin.

51 You learned the trade of tiling from your cousin, followed by a brief period undertaking compulsory military service. At that time, your fragile personality features surfaced when you became involved in an altercation with a superior officer, attempted suicide and were ultimately discharged on medical grounds with a diagnosis of depression.

52 Thereafter, you gained some employment as a graphic designer with an older brother and continued in that field until you arrived in Australia in 1996, having apparently been invited here by your sister. You ceased contact with her in 1997.

53 In Australia, you commenced to learn the trade of plastering and at some stage set up your own business known as Plastering King. That business was bankrupted in 2005.

55 You then set up a new business, Australian 1st Class Constructions Pty Ltd, which was a company ultimately owned by your friend and flat-mate, Mr Kayar.

56 You have been married in the past and have had a number of failed relationships. You also have children in Turkey and in Australia.

57 You have two adult daughters in Turkey from a four-year relationship there. You are said to have last seen them in 2013 on a visit to Turkey.

58 You married a Turkish Australian woman in 1997, but the marriage lasted a very short time.

59 You formed another relationship which led to a son, now aged 13, with whom you have kept in contact. There was a further relationship which led to a daughter, aged 11, who lives in Queensland with her mother.

60 At the time of your offending, you had a female companion, Ms Oksuz.

61 You had the day-to-day running of the business, Australian 1st Class Constructions Pty Ltd, although it was not registered in your name.

62 On 23 October 2009, you were the victim of criminal violence. You were threatened with a knife and shotgun, and your car was shot at while you were walking towards it. The perpetrators of the violence were convicted of the offences in the County Court.[13]

63 This event seems to have significantly destabilised you and caused a Post-Traumatic Stress Disorder ('PTSD') which persisted into 2013. It was as a result of that diagnosis of PTSD that you were declared unfit for work by your General Practitioner and put on a Disability Support Pension in 2013, with Ms Oksuz commencing on the Carer Payment in May 2013.

64 The evidence about your functioning in the years since the 2009 incident is mixed.

65 Despite some ongoing distress related to the 2009 incident, you were able to obtain plastering work, and conduct onsite jobs, as described by Mr Kayar.[14] You maintained an intimate relationship with Ms Oksuz and saved money from your work to fund your travel to Turkey with Ms Oksuz in the middle of the year of the murders.[15]

66 However, both Mr Kayar and Ms Oksuz referred to your low mood and anxiety over the plastering dispute, and your apparent loss of motivation in the month or so before the murders.

67 Documents obtained from Centrelink, and tendered at the plea hearing, in relation to your application for the Disability Support Pension in December 2012 recorded a diagnosis of PTSD persisting since 2009 and anxiety and depression.[16] Perhaps most significantly, the Centrelink documents, in documenting your psychiatric state in the period before the murders, contain no reference to psychotic symptoms or delusional beliefs.

68 Your counsel, Mr Dann SC, also tendered some extracts from the Justice Health file which indicated variance of views as to whether you were correctly diagnosed with psychosis in custody.[17]

69 After you were charged with these offences, your legal advisors arranged to have you assessed by three different psychiatrists: Dr Nick Owens, Dr Lester Walton, and Dr Adam Deacon.

70 All three psychiatrists opined that you suffer from PTSD as a result of the 2009 shooting incident. Dr Owens also diagnosed a personality disorder and allowed that individuals with personality disorders were more prone to develop lasting and pathological PTSD responses, which was a relevant consideration in your case.

71 Dr Deacon considered that you exhibited traits of narcissistic, anti-social and borderline personality disorders.

72 Dr Owens and Dr Walton did not consider that you suffered from a psychotic disorder, such as schizophrenia, at the time you committed the murders.

73 None of the three psychiatrists considered that you suffered from a mental disorder at the time of the offending which could be relied on to explain the offending or to reduce your moral culpability. Only Dr Deacon was prepared to diagnose you as suffering from schizophrenia, although he, too, reached a conclusion that your mental disorders, assuming they were present at the time you committed the murders, did not contribute to your actions towards Mr Tucker and Ms Aylward.

74 All three psychiatrists did allow that incarceration would be more onerous for you than for a prisoner of normal psychological functioning.

75 Your counsel submitted that I should moderate general and specific deterrence in the sentence that I impose in reliance on Verdins[18] principles because of your unstable mental health, even if some of your symptoms only arose after your arrest. He also submitted that I should accept the evidence of Dr Deacon's diagnosis of schizophrenic psychosis.

76 Mr Gibson argued that the psychiatric evidence did not support a nexus between the offending and any mental disturbance affecting you at the time. Nor did it support any sufficient basis for moderation of specific or general deterrence.

77 Having canvassed the extensive psychological and psychiatric opinion put forward in this case, I am not satisfied of the diagnosis of schizophrenia on the balance of probabilities. I expect that it will require a longitudinal assessment over some years for concluded views to be reached about any such diagnosis.

78 I am not persuaded of the basis for reliance on Verdins principles to reduce moral culpability or to diminish the weight to be accorded to general deterrence in your case.[19]

79 The Court of Appeal in DPP (Vic) v O'Neill[20] has recently considered the potential relevance to sentencing of personality or psychological disorders which do not rise to the level of engaging Verdins principles. In that case, Warren CJ, Redlich and Kaye JJA said that '[the offender's] complex personality matrix was not, however, irrelevant to the sentencing synthesis.'[21]

Given the relative lack of seriousness of your condition and the grave seriousness of the offending, I have given weight to your condition, but not significant weight as it relates to moral culpability, denunciation and general deterrence.[23]

81 I am satisfied that you have experienced a PTSD with accompanying symptoms of anxiety and depression, and that your experience of those symptoms was exacerbated by your pre-existing fragile personality.[24] It appears that your misplaced grievance over the plastering dispute led you to contemplate seeking retaliation. Your girlfriend harboured concerns about what you might do and sought to dissuade you.[25] However, none of the symptoms experienced by you and affecting your mood and state of mind at the time of the offending impaired you to the extent that your moral culpability is significantly reduced. Indeed, none of the three psychiatrists suggested otherwise.

82 For reasons I will refer to later, specific deterrence may not carry much weight in the sentence I impose.

83 Nevertheless, I am persuaded that imprisonment will be more burdensome for you than for a person of normal mental functioning. This is a result of the effects of the PTSD superimposed on your particular personality, which has caused you to decompensate to some degree. Therefore, I have given modest consideration to this as a factor relevant to your ultimate sentence. It is possible that your mental functioning will decline further as a result of your imprisonment. However, reports of your progress in custody, according to extracts tendered from Justice Health,[26] indicate that most recently you are relatively stable and without psychotic symptoms.

84 Your counsel submitted that another mitigating factor is that you risk being deported at the conclusion of your sentence, and you have an uncertain future because of your visa status, which will add to the burden of your imprisonment.[27]

85 Whilst I accept that there is a risk that your visa may be cancelled as a result of your sentence, or that other related effects may flow, I cannot speculate about those effects. Your counsel relies on hardship to you from the uncertainty of these potential outcomes. There is bound to be a degree of uncertainty, experienced by you, attaching to your future at the end of the non-parole period or at the end of your sentence. These matters are of little weight in the overall sentence I impose.[28]

86 You entered your pleas of guilty to the charges on 26 August 2015 before me.[29] You had indicated your intention to plead guilty on 10 August 2015. It has now been two years since the murders. This was not an early plea. There was a lengthy period over which your previous solicitors explored a defence of mental impairment and a committal proceeding occurred in that context.

87 This delay has been unfortunate for the relatives of the deceased who have been hoping for finality. Whilst you are not to be held to blame for the delay, you cannot rely on an early resolution as additional mitigation. However, I accept that resolution of legal responsibility was complicated by consideration by your legal advisers of psychiatric defences and the consequent need for psychiatric examination of you which occurred over many months.

88 It was submitted on your behalf that your pleas of guilty were deserving of significant weight as a result of the utilitarian benefits flowing from the avoidance of a trial.[30] The Crown case was very strong, but I nevertheless accept the defence submission as to the mitigating weight to be accorded to your pleas of guilty.[31]

89 Although your counsel was unable to point to much evidence of remorse, your pleas of guilty and your demeanour in Court show an acceptance of responsibility for your crimes.[32] In pleading guilty to your crimes, justice has been facilitated in a way which would not otherwise have occurred. However, it is concerning that you have consistently dissembled in your account of what led to your crimes.

90 I refer to the accounts given by you to the three psychiatrists and the account given to police about why you went to the premises and about what happened when you went inside.[33]

91 Mr Dann SC submitted that your '000' call and your willingness to cooperate with police at the scene and at the hospital were relevant in demonstrating an awareness of your wrongdoing and an acceptance of what would inevitably follow. I accept that this conduct is distinguishable from those cases where extreme steps are taken to avoid detection of the crimes or ultimate responsibility.[34]

92 It was submitted on your behalf that, although your prior conviction evokes Pt 2A of the Act, you do not have any other convictions for crimes of violence and that this sets you apart from many other declared 'serious violent offenders'. This is true, although it is disturbing that your previous conviction included violence against a female victim and, again, in this case, the grudge that you carried was largely focused on Ms Aylward.[35]

93 It was also submitted on your behalf that there were features of your personal background that were deserving of recognition in the overall sentencing discretion, including your troubled childhood and the impact of the 2009 shooting episode on you. I accept that this is so, and I take into account those factors personal to you.

94 In conclusion, your counsel submitted that your pleas of guilty, together with factors personal to you, comparison with like cases, and consideration of current sentencing practice, should lead to the imposition of a fixed term of imprisonment in each case. It was then submitted that, after selecting an appropriate term in each case, I should make orders for cumulation reflecting the gravity of each crime but also taking account of the principle of totality. It was also put that, in accordance with s 11(1) of the Act, I should fix a non-parole period in your case, and in doing so reflect the principle of totality.

95 Mr Dann SC argued that, because of your current age, I must take into account that the sentence that I impose is likely to represent a significant portion of the rest of your life. I do take into account that fact and the principle of totality.

96 Submissions by the prosecutor emphasised the stark contrast between your explanation of how you came to attend the premises and of what occurred there, and the circumstantial evidence which refuted much of that account.

97 I am persuaded that your account of your actions to police and to the psychiatric experts was unreliable. Your most recent account to Dr Deacon about why you took the black backpack was far-fetched and illogical.[36] Mr Dann SC conceded that gaps in your memory made it difficult to rely on parts of your account.

98 The Crown focused attention on the objective gravity of your crimes and the profound grief they have engendered. It was submitted that under s 6D(a) of the Act, protection of the community was to be regarded as the principal purpose for which the sentence is imposed. In addition, it was submitted that there were other factors suggesting that the community needed to be protected from you. In particular, the carrying out of the killings in response to frustration over a commonplace grievance arising from a domestic building dispute. I accept this submission. However, I note that the Crown did not argue for a disproportionate sentence.

99 I also accept the Crown's submission that the unwelcome intrusion into the victims' family home late on a Sunday night, when their children were likely to be asleep nearby, was an aggravating feature of the offences.

100 I am required to have regard to current sentencing practice for the crime of murder and for the more unusual sentencing circumstance where two lives have been taken.

101 The Court of Appeal has recently emphasised the importance of having regard to comparable cases when dealing with very serious criminality in order to achieve consistency of outcome.

102 In Reid (a Pseudonym) v The Queen,[37] Maxwell P and Whelan JA, when dealing with an appeal alleging manifestly excessive sentence regarding a very serious example of a serious crime, said:

... It is precisely because conduct of this kind is so abhorrent - and because it is therefore so difficult to determine an appropriate term of imprisonment - that guidance must be sought from sentences imposed in comparable cases. That consideration necessarily extends to sentences imposed in cases where the offending is even more serious.

Only by this means is it possible to ensure that like cases are treated alike, and that there is appropriate differentiation between cases which are materially different. Justice and fairness require nothing less.[38]

103 In Hudson v The Queen,[39] Ashley, Redlich and Harper JJA said:

The selection of a sentence involves the exercise of a judicial discretion which is formed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. ...

Sentences imposed in "like" cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the "instinctive reaction" when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of "current sentencing practices" which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

"Like" cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that "comparable cases" can only provide limited assistance to this court. They may however be used in search of unifying principles. ...[40]

104 In DPP v Adajian,[41] Callaway JA said:

Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the Court is to do justice in individual cases.[42]

105 I have reviewed sentences imposed in comparable cases to establish sentencing range.[43], [44]

106 The Crown did not seek to persuade me that life imprisonment must be imposed in this case, or life imprisonment without parole, as this disposition is reserved for the very worst category of murders.[45]

107 Close review of comparable cases focused attention on DPP v Nguyen,[46] DPP v Hettiarachchi,[47] and DPP v Kabo.[48], [49]

108 Nguyen and Hettiarachchi are referred to because, in each of those cases, young children were present at the time of the carrying out of the murders.

109 In the case of Hettiarachchi, the offending appeared to have been fairly spontaneous. The accused was convicted after a trial in which he blamed his wife, who was the daughter of the two deceased, for the killings. The offences were described by King J as bad examples of murder carried out in a domestic setting calling for condign punishment.[50] Another aspect to that case was that a child was sitting on the knee of one of the deceased at the time he was killed.

110 In Nguyen, the offending also appeared to have been relatively spontaneous,[51] but it was followed by a robbery and the accused took steps to evade detection for several years, ultimately pleading guilty on the second day of trial. In that case, the offence was carried out in the physical presence of four children, and the accused also threatened the children and confined them in a room for a prolonged period.

111 In Hettiarachchi and Nguyen, the children actually witnessed and were physically present during the murders.

112 The case of Kabo did not involve a killing in the vicinity of children, but did involve the deliberate killing of a young married couple in their own home. There was evidence of pre-planning, involving the accused purchasing the murder weapons in advance, and telling a co-worker of his intent. The killing was followed by extensive steps taken to clean up and avoid responsibility. The accused in that case was found guilty after a trial in which the defence of mental impairment was relied on but rejected by the jury. There was conflicting expert evidence as to the nature of the accused's mental health problems, although he was found to have had somewhat unstable mental health.

113 My review of comparative cases and current sentencing practice for the crime of murder[52] indicates that sentences at the lower end of the range have been imposed where:

(b) there was an absence of premeditation and planning towards a specific motive; and

(c) remorse was found to be present after the crime and at the time of sentence.[53]

114 As I have already indicated, I regard the objective gravity of your offending as high, even when viewed within the prism of other cases involving the murder of more than one victim in a single episode.

115 However, a consideration of the range of sentences imposed for murder of more than one victim in a single episode fortifies my view that it is appropriate to select a fixed term of years for each charge, and a head sentence of less than life imprisonment. This is a reflection of the matters put in mitigation, but also a reflection of your current age which means that you will be an elderly person by the time you are first able to be considered for parole eligibility.

116 In fixing your sentence, I must apply s 5(1) of the Act, which provides that the only purposes for which sentences may be imposed are: just punishment, specific and general deterrence, rehabilitation, denunciation, and protection of the community. I have also considered the factors set out in s 5(2) of the Act.

117 Whilst I regard just punishment, denunciation and deterrence as important principles in your case, you are nevertheless entitled to rely on the sentencing benefit arising from your pleas of guilty to these abhorrent crimes. There is utilitarian value to your pleas of guilty.[54] Witnesses and family members of the deceased were spared the trauma of participating in a public trial, and the risk of exposing them to extensive media coverage over several weeks was also mitigated.[55]

118 It was observed in Nguyen, by reference to Hall v The Queen,[56] that 'the more serious the crimes, the greater the weight to be given to a plea of guilty'.[57]

119 I must also give weight to s 6D(a) of the Act and the importance of protection of the community from you.

120 I have given only modest weight to specific deterrence because I consider that that objective will be achieved as a result of the focus on protection of the community from you in the future. The objective of specific deterrence is also achieved by reason of the combined consequence of your current age and the objective gravity of your crimes which necessarily call for the imposition of a very lengthy sentence. The result of those factors means that the risk that you will re-offend upon release is reduced.

121 Whilst I am bound to give effect to ss 6D(a) and 6E of the Act and the importance of community protection by applying the presumption of cumulation rather than concurrency, I must also balance the orders for cumulation with the principle of totality.

122 I must also apply the principle of parsimony encompassed in s 5(3) of the Act, by not imposing a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

123 In accordance with s 11(1) of the Act, I consider that I should fix a non-parole period as part of your sentence. I have arrived at this conclusion after consideration of all the relevant sentencing factors and principles of law.

124 The fixing of a non-parole period does not mean that you will necessarily be released at the end of your non-parole period. It means that the matter is left to the discretion of the Parole Board.

125 In the fixing of your non-parole period, I am conscious of the principles discussed in CCR v The Queen[58] as to the relevance of age and mature years to higher end sentences.

126 Before indicating the term I propose to impose in this case, I wish to record the Court's gratitude for the efforts of prosecution and defence counsel, who have conducted this difficult case with tact and courtesy. I also acknowledge the composed and respectful presence of the family and friends of Gregory Tucker and Korinne Aylward, for whom the plea and sentencing process has been extremely difficult.

127 On the first charge of murder of Korinne Aylward, you are sentenced to be imprisoned for 23 years.

128 On the second charge of murder of Gregory Tucker, you are sentenced to be imprisoned for 23 years. I order that 12 years of this sentence is to be served cumulatively on the sentence I have imposed on charge one.

129 The total effective sentence is 35 years. I fix a non-parole period of 28 years.

130 Pursuant to s 18 of the Act, I declare that, including today, you have served 733 days by way of pre-sentence detention, and I direct that the period already served under the sentence be noted in the records of the Court.

131 Pursuant to Pt 2A of the Act, I declare that I have sentenced you as a serious violent offender.

132 Pursuant to s 6AAA of the Act, I declare that, but for your plea of guilty to each charge, I would have imposed a total effective sentence of life imprisonment and a non-parole period of 35 years.

[1] Crimes Act 1958 (Vic) s 3(1).

[4] Recording of '000' call on 8 December 2013.

[7] A mutal friend, Mr Ozan Girgin, said that the issue of the plastering dispute was not raised or discussed in the weeks leading up to their deaths: Depositions, 305

[8] Mr Girgin had tried to mediate the dispute between March and October 2013. You told Mr Girgin, 'One day I am going to fuck them up.': Depositions, 302-4.

[10] Plea Hearing Prosecution Exhibit 3.

[11] Plea Hearing Prosecution Exhibit 2.

[12] Part 2A of the Sentencing Act 1991 (Vic) requires that an offender sentenced for murder who has previously been sentenced to imprisonment for a serious violent offence - which includes threat to kill - must be sentenced as a 'serious offender'.

[13] Plea Hearing Defence Exhibits 1, 7, 8 and 9.

[16] Ms Atakan, psychologist, noted that you had been diagnosed with narcissistic personality disorder and that personality issues complicated your treatment: Plea Hearing Defence Exhibit 12.

[18] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[19] DPP (Vic) v O'Neill [2015] VSCA 325.

[22] [2011] VSC 139.

[24] See Plea Hearing Defence Exhibit 2, 8-9.

[25] Ms Oksun sent a text message in which she tried to dissuade you from doing 'that thing' by saying that she did not want to lose you. In response,you warned her,'Don't write': Depositions, 371.

[27] DPP v Zhuang [2015] VSCA 96 [54] (Redlich, Priest and Beach JJA); Migration Act 1958 (Vic) s 501(3A).

[28] Indeed, your counsel conceded that deportation, in your case, would not carry with it any risk of danger to safety, extreme hardship or persecution.

[29] Sentencing Act 1991 (Vic) s 5(2): 'In sentencing an offender a court must have regard to ... (e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so'.

[30] Phillips v The Queen [2012] VSCA 140; (2012) 222 A Crim R 149 [64] (Redlich JA and Curtain AJA, Maxwell P concurring).

[31] R v Duncan [1998] 3 VR 208.

[32] R v Tasker [2003] VSCA 190; (2003) 7 VR 128 [24] (Eames JA, Winneke P and Charles JA concurring).

[33] In your accounts, you lied about the following: that you caught a taxi from Pascoe Vale Road to 22a Darling Street, Moonee Ponds; that you had been invited by Mr Tucker to the house to discuss the debt issue; that you were at the premises to discuss payment for the plastering; that Mr Tucker was prepared to pay you but Ms Aylward was not; that you acted in self-defence; and that you lacked a memory of the events.

[34] Other examples are cases involving defilement or destruction of the bodies of deceased persons after commission of murder.

[36] For example, the suggestion that the cable ties were to be used for gathering small bundles of grass and the petrol spray bottle was to be used to set fire to the cable tied grassed bundles as part of some planned 'gardening activities'.

[39] (2010) 30 VR 610.

[40] Ibid [27]-[29]. See also DPP v Zhuang [2015] VSCA 96 [29]-[37] (Redlich, Priest and Beach JJA).

[41] [1999] VSCA 105.

[42] Ibid [28] (Callaway JA, Phillips CJ and Chernov JA concurring).

[43] Review of sentences imposed for murders involving more than one victim varies from the worst category of case where life without parole is imposed, to cases in which it was determined to impose a fixed term as the head sentence ranging from 25 years to 35 years. See, including, R v Beckett [1998] VSCA 148; DPP v Adajian [1999] VSCA 105; R v Pickford [2000] VSCA 179; (2000) 2 VR 15; R v Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106; R v Wales [2003] VSC 115; R v Crosbie [2003] VSC 69; R v Spina [2005] VSCA 319; R v Sharpe [2005] VSC 276; R v Russo [2005] VSC 348; R v Guthrie [2006] VSCA 192; DPP v Kabo [2006] VSC 340; DPP v Hettiarachchi [2009] VSCA 270; DPP v Nguyen [2010] VSCA 31; R v Fitchett [2010] VSC 393; CCR v The Queen [2012] VSCA 163; R v Mihayo [2014] VSC 652; R v Streeter [2014] VSC 100. Plea Hearing Defence Exhibit 11 referred to.

[44] R v Wales [2003] VSC 115 [114] (Coldrey J): 'An examination of the relatively few cases involving double murders indicates a wide variation in the sentences imposed. This is to be expected given their widely differing factual and personal situations.'

[45] R v DJH [1998] VSCA 108 [13] (Brooking JA, Phillips and Charles JJA concurring): 'The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration.'; See also R v Hettiarachchi [2007] VSC 541 [52] (King J).

[46] [2010] VSCA 31 ('Nguyen'). Appeal against sentence dismissed. Sentence imposed of 19 years' imprisonment on each count of murder. Total effective sentence was 25 years' imprisonment, with non-parole period of 20 years.

[47] [2009] VSCA 270 ('Hettiarachchi'). Appeal against sentence dismissed. Sentence imposed of 22 years' imprisonment on each count of murder. Total effective sentence of 27 years' imprisonment, with non-parole period of 22 years.

[48] [2006] VSC 340 ('Kabo'). Sentence imposed of 18 years' imprisonment on each count of murder. Total effective sentence of 25 years' imprisonment, with non-parole period of 20 years.

[49] In each of the three cases, the killings occurred in the family home of the deceased.

[50] [2009] VSCA 270 [23].

[51] [2010] VSCA 31 [10]-[11].

[52] Statistics compiled by the Sentencing Advisory Council for murder sentences in the five year period from 2009-10 to 2013-14 show that the median total effective length of non-life imprisonment sentences was 20 years, and the median non-parole period was 16 years: Sentencing Advisory Council, Snapshot 171: Sentencing Trends for Murder in the Higher Courts of Victoria, 2009-10 to 2013-14 (May 2015), 2-3.

[53] See, also, discussion in Meade v The Queen [2015] VSCA 171 [235]-[240] (Maxwell P, Redlich and Whelan JJA).

[54] See discussion in Sentencing Advisory Council, Guilty Pleas in the Higher Courts: Rates, Timing, and Discounts (August 2015), xvi: 'The data revealed very different plea rates for different offences. For example, the offence of murder had the lowest proportion of guilty pleas (48.0% of proven murder charges), while attempted armed robbery had one of the highest plea rates (96.8% of proven charges).'

[55] R v Donnelly [1998] 1 VR 645, 649 (Charles JA, Winneke P and Hedigan AJA concurring).

[56] (1994) 76 A Crim R 454.

[57] DPP v Nguyen [2010] VSCA 31 [28] (Maxwell P, Bongiorno JA and Ross AJA).

[58] [2012] VSCA 163 [65]-[74] (Hansen JA, Warren CJ and Redlich JA concurring).