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[2007] VSC 20
Supreme Court of Victoria
2007-02-21
Bell J
Original judgment source is linked above.
CRIMINAL LAW - sentencing - two twins aged 53 years - both on charge of intentionally causing serious injury - one on charge of rape - both highly intoxicated - both from socially disadvantaged backgrounds - both pleading guilty - one with criminal record for crimes of violence - injuries inflicted very serious - general and specific deterrence - sentence not to be crushing.
1 Cetin Mirik and Metin Mirik, you have both been charged that at Fitzroy North on 13 April 2005 you without lawful excuse intentionally caused serious injury to Refik Kortel. You have both pleaded guilty to this charge.
2 The crime of intentionally causing serious injury is one of the most serious known to the law. The maximum penalty prescribed by the Parliament for this crime is imprisonment for 20 years. The intentional causing of serious injury to another person is regarded by the Court as a matter of very serious gravity.
3 Cetin Mirik, you have been further charged that at Fitzroy North on 13 April 2005 you raped Refik Kortel. The charge is that you intentionally sexually penetrated him by introducing plant material into his anus without his consent while being aware that he was not consenting. You have pleaded guilty to this charge.
4 The crime of rape is also one of most serious gravity. The maximum penalty prescribed by the Parliament for this crime is imprisonment for 25 years.
5 These are the circumstances in which the offences were committed.
6 On the morning of 12 April 2005, you, Metin Mirik, met with Mr Kortel at a mutual friend's house in Broadmeadows. You began drinking alcohol and continued to do so throughout the day. At about 7.30pm, you and Mr Kortel travelled to a flat in Coburg to visit another mutual friend. According to that friend, you both "looked really drunk" but "seemed happy and were having a good time". You stayed at the flat for about 40 minutes.
7 You and Mr Kortel then travelled to North Fitzroy where you met up with your twin brother, Cetin Mirik, at his flat. Apart from a trip to a nearby hotel for about two hours, the three of you spent the rest of the evening at the flat drinking alcohol. Mr Kortel has no real memory of the events that occurred after he arrived at the flat.
8 At about 7.30am the next morning, neighbours heard shouting and banging noises coming from the flat. It appeared an argument had commenced which had developed into a physical attack. At some point, the three of you moved outside where parts of the attack were witnessed by neighbours.
9 They observed Mr Kortel lying naked on the concrete in the courtyard. He was barely moving while you both were attacking him. He was not fighting back. Metin Mirik, you repeatedly struck Mr Kortel with a brick to his head and his body. Cetin Mirik, you struck Mr Kortel with a bicycle frame. At some stage, you both rolled Mr Kortel over onto his stomach and continued to hit him. Cetin Mirik, you dropped the bicycle frame at this point and began to strike Mr Kortel repeatedly with a brick. You were both observed to stomp on Mr Kortel several times.
10 When you had both finished attacking Mr Kortel, you unsuccessfully attempted to conceal him from view by pushing his body underneath the verandah of the flats. You both then went to a nearby outside laundry and washed yourselves before returning to the flat.
11 During the attack, neighbours called the police. When they arrived, they found Mr Kortel in an unconscious state in the courtyard. He had six branches from a nearby tree protruding from his anus. The branches were inserted into his anus by you, Cetin Mirik. Metin Mirik, you were not directly involved in this part of the assault upon Mr Kortel.
12 Mr Kortel was taken to hospital. You were both arrested shortly thereafter.
13 The injuries that Mr Kortel suffered as a result of the attack were extremely severe. He had massive amounts of bruising and swelling over his head and body. He was treated for a subdural haematoma and multiple facial factures. He also suffered multiple perforations to the rectum and required immediate surgery for his abdominal injuries. After six days connected to a ventilator and further surgery, he was discharged from hospital on 6 May 2005, some 23 days after the attack.
14 It is difficult to understand why you attacked Mr Kortel. You have both known him for some 30 years.
15 Cetin Mirik, you have little memory of the incident. You told your forensic psychologist, Pamela Matthews, that your behaviour was impulsive and "it just happened". You admitted assaulting Mr Kortel to the police. You said you did it because he hit your brother a long time ago. You said your actions were wrong.
16 Metin Mirik, you too have little memory of the incident. You admitted to the police assaulting Mr Kortel. You told your forensic psychologist, Ian Joblin, you and Mr Kortel were friends and would drink and smoke cannabis together. While there was also history of conflict between you and Mr Kortel, you told Mr Joblin it was not serious enough to have any effect on your behaviour on the night of the attack. You too admitted your actions were wrong.
17 A significant part of the explanation for you committing the crimes is that you were both highly intoxicated after a prolonged period of drinking and lost control of yourselves when some kind of argument occurred between you and Mr Kortel.
18 Mr Kortel supplied a victim impact statement in which he described the devastating impacts of the crime upon him. He explained how he will need to carry a colostomy bag for the rest of his life. He feels weak and needs assistance with everyday living tasks and with managing his epilepsy. He has on-going medical costs which impact considerably on the financial welfare of his family. He is physically unable to work and relies on a disability support pension. Mr Kortel will never be able to return to his previous employment as a storeman due to his physical injuries.
19 On an emotional level, Mr Kortel explained he has not been the same since the attack and has been "emotionally wrecked". A psychologist diagnosed him as suffering from chronic post-traumatic stress disorder and major depressive disorder. He has difficulty sleeping and concentrating. He has low energy, has less interest in almost all activities and has lost his appetite. The crime has also had an impact on the health of Mr Kortel's family who are scared for their safety. Their lives have never been the same since the attack.
20 Let me now turn to your personal circumstances.
21 You were born as twin brothers in Turkey on 14 January 1954. You are currently aged 53 years and were aged 52 years at the time of these offences.
22 Cetin Mirik, you went to live with your grandparents in Istanbul from the age of three years. There you attended primary and secondary school but failed grades five and six. You were teased by other children at school because you lived with your grandparents. You saw your parents and siblings irregularly during this time. You were a socially isolated child, your main company being your grandparents and an uncle. You may have been sexually abused as a child. On occasions you would run away from your grandparents to visit your parents and siblings who would insist on your return to Istanbul.
23 You felt bullied by your twin brother, Metin. Your relationship with him is an ambivalent one. You feel you have never really got on with him but that you are still close.
24 In 1969, at the age of 15, you migrated to Australia with your parents and three brothers. You attended school for about one month but were unable to cope with being bullied for your lack of English and migrant background. You then joined the workforce and have had at least 15 different employers over the years. You have worked in manufacturing, catering, maintenance and as a gardener. There have been times when you have been unemployed.
25 In 1979, you returned to Turkey for National Service. On your return to Australia, you sustained a back injury which has impacted on your capacity to maintain employment. You were placed on a disability pension in 1994 or 1995 after being diagnosed with angina. At the time of the attack on Mr Kortel, you were working two-three hours a day twice a week carrying out maintenance duties for a motel and set of units in Carlton.
26 You were married in Turkey in 1980 or 1981 and have one son from that relationship. The relationship broke down in 1985 and you have not seen your son for some years. After the marriage broke down, you were in another relationship for about a decade which was turbulent and inconsistent.
27 Cetin Mirik, you have a history of heavy drinking. You started binge drinking at the age of 17 years. After your marriage broke down, you drank alcohol every day for two years. Before the attack on Mr Kortel, you were drinking alcohol on two days a week. You have used marijuana on the weekends with friends since the age of 20. You also smoke it to relax, to aid sleep and to manage pain. You have experimented with heroin and amphetamines but have never consistently used these substances. You currently take prescribed medication for angina.
28 I was given a report prepared on your behalf by Ms Matthews. These were her main findings:
• You are a cognitively low functioning man with a moderate level of intellectual disability.
• You exhibit symptoms of Borderline Personality Disorder reflected in unstable interpersonal relationships, an impaired sense of self, impulsivity in substance use and behaviour, chronic feelings of loneliness and boredom and inappropriate intense anger.
• You have a history of being bullied, manipulated and denigrated by peers and exhibit a post-traumatic emotional trigger of psychological and physiological responsiveness to being bullied.
• You have a highly ambivalent relationship with your twin brother Metin in which you will act to please him but resent doing so.
• On the day of the attack on Mr Kortel, these aspects combined with disinhibition arising from alcohol abuse and possibly other substances.
• The rape was an extension of the violence rather than being sexually motivated and the offending was impulsive rather than planned.
29 Cetin Mirik, you have come before the courts for various criminal matters on nine previous occasions between 1989 and 2001. These include minor alcohol and drug-related offences, charges of theft and two charges of breaching the terms of an intervention order. But you have also been convicted of offences involving violence on five previous occasions. These offences include assault by kicking and unlawful assault in 1982, causing injury intentionally in 1986, assault with a weapon in 1989, and two charges of unlawful assault and one charge of causing injury intentionally in 1990. In 1995, you were convicted of one charge of assault by kicking, three charges of assault with a weapon, one charge of making a threat to kill, two charges of unlawful assault and one charge of discharging a missile to danger a person. You have spent at least two periods of time in prison totalling some seven months.
30 I accept you are genuinely remorseful for your actions. This is reflected in your plea of guilty to both charges. You told your psychologist that you felt "no good" about your behaviour and that you were "sorry cause he got hurt". You also seemed to be aware that Mr Kortel had been very ill and you indicated a wish that his health would improve.
31 You and your brother were supported in court during the hearing of your pleas on sentence by your elderly mother and father.
32 Metin Mirik, let me now turn to your personal circumstances.
33 You were raised in a city in Turkey. When you were six, your family moved to the country for a brief period but returned to the city in 1967. You attended school to the equivalent of year eight and can read and write Turkish and basic English.
34 You came to Australia with your parents and your three brothers in 1969 when you were aged 15. You first lived with them in migrant accommodation in Broadmeadows. You spent only a few days in school because of difficulties with English. Since leaving school, you have had a number of different jobs. You have worked in a laminating factory, for a car company and for a rubber factory. You have worked in Tasmania drilling tunnels, as a storeman, a baker and a labourer on building sites. Your most recent job was a part-time cleaner. There have been times when you have been unemployed. You also spent some time in Turkey completing your national service.
35 You were married at the age of 27 and have a very strong, positive relationship with your wife. You have a son, daughter and another son, who are currently aged 24, 20 and 14. At the time of this offence, you resided with them in a Ministry of Housing home in Broadmeadows where you had lived for the previous 15 years.
36 You have an ambivalent relationship with your brother Cetin Mirik. On the one hand, you feel that you should support him because you are twins. On the other hand, you do not always agree with him and are not very close. You told Mr Joblin problems arise between you, especially when you are drinking.
37 You too have a history of heavy drinking. You started drinking when you were 15. There have been periods where you have stopped drinking. However, on the whole, your abuse of alcohol has created problems in your employment and your marriage. When drinking, you have a tendency to disappear from home for some considerable time. You have sought professional attention for drug and alcohol abuse over the years.
38 You have smoked cannabis since the age of 14 and regularly smoke a gram or more a day. You also have a history of abuse of heroin, amphetamines, prescriptive pills and LSD, but have not used these drugs since leaving the Turkish army and returning to Australia.
39 You were stabbed in 1998 by a person after leaving a party at a house in Broadmeadows. The stabbing had a significant effect on you. Since then, you have attempted to deal with the stress from the assault by using alcohol and cannabis.
40 Ian Joblin assessed your psychological condition. These were his main findings:
• While no formal intelligence testing had been conducted, you are not average in intellect but not retarded.
• Your life has been one of instability. You have been searching for and found your own reference and identity in drugs, alcohol and people similarly disposed. You have formed relationships with others who do not condemn you for your drinking and cannabis use.
• You are a somewhat unsophisticated and uncomplicated individual. You have a good deal of social inadequacy which may have developed as a result of limited intellect and limited education. You are concerned about your inability to be an appropriate father and provider.
• You are impulsive.
• There is an obvious link between your depression and alcohol and drug use.
• Alcohol and prescriptive drugs played a role in the offence for which you are charged. These events do not reflect any on-going disposition to aggression.
41 Besides your parents, you were supported in court by your wife and your son. Your son Kavir Mirik gave evidence on your behalf. He is aged 24 years and is the eldest of your three children. He told me he and your family visit you in prison. The family has been devastated by your offending, especially your two youngest children. When you are told of how your family feel about your behaviour, you break down sobbing. Your son confirmed your history and alcohol and cannabis abuse. He told me you were a good father and the family would continue to stand by you.
42 Metin Mirik you have been before the courts on 17 previous occasions between 1974 and 1996. This is more than your brother, but the offences have been relatively minor, at least when compared to intentionally causing serious injury, and you received quite small fines on most occasions. Alcohol and drug abuse obviously lies behind your history of offending. Your history does not indicate you are a violent person. It is not alleged that, before now, you have served any sentence of imprisonment. You were on bail for over 12 months, abiding by its conditions, until you attended court on the hearing of your plea on sentence, ready to volunteer yourself into custody, which you did. I accept you too are sincerely remorseful for your actions. This is reflected in the plea of guilty you have entered and the evidence of your family and Mr Joblin.
43 I turn now to an assessment of the relevant sentencing considerations.
44 A very significant sentencing consideration must be the gravity of the offences you have committed.
45 You have both committed the offence of intentionally causing serious injury to Mr Kortel, who has suffered greatly in consequence of your criminal actions. The two of you brutally beat Mr Kortel. A brick and old bicycle frame were used as a weapon. There is nothing to distinguish between your level of responsibility for committing this crime, the sentence for which must reflect its very serious gravity.
46 Cetin Mirik, you went further and committed the crime of rape upon Mr Kortel, who suffered very grave injuries as a result. The nature of the rape - you forced six tree branches into Mr Kortel's body through his anus - was horrifically violent. Although it was you and your brother's common purpose to inflict serious injuries on Mr Kortel, your brother was not a party to this rape and you alone bear criminal responsibility for committing it, additional to the criminal responsibility your bear for committing the crime of intentionally causing serious injury. However, the rape and the intentional causing of serious injury were committed during the course of a single criminal episode, and did not have separate motivations. This should be reflected in a reduced head sentence and a measure of concurrency in the sentence for this crime.
47 Both general and specific deterrence must also be significant sentencing considerations. Those who would commit such crimes and each of you must be made to appreciate there will be serious criminal consequences.
48 For these reasons, the crimes must attract immediate sentences of substantial periods of imprisonment.
49 I do not take into account against either of you that the offences were pre-planned. The circumstances show the offences were committed spontaneously when you were both in a very drunken state.
50 The most significant mitigating consideration is the guilty plea you have both entered. This entitles you to a significant discount in the sentences I must impose, for two reasons. First, the guilty pleas have saved the community the trouble and expense of a trial, and saved Mr Kortel the trauma of having to give evidence. Second, your pleas, and other circumstances, are strongly indicative that you are suffering from genuine remorse for your criminal actions, which suggests you have prospects of rehabilitation.
51 You both have disadvantaged personal backgrounds. You had a displaced upbringing and have received limited education. You have both battled with alcohol and drug addiction. Cetin Mirik, you exhibit symptoms of a Borderline Personality Disorder. Metin Mirik, your intelligence is limited. The contents of your psychologists' reports provided further details of these and other matters. I will take these matters into account in both of your cases when assessing the degree of your moral culpability for having committed the crimes but, given their gravity, the effect on the overall sentences must be limited.
52 Cetin Mirik, your criminal record, which I have described, is a very poor one. Therefore you get no benefit for having previously been free of convictions for serious crimes of violence. Metin Mirik, you do get some benefit for having not previously appeared before the courts for such crimes, but again, this must be limited, given the gravity of your crime.
53 Both of you are aged 53. I am conscious that, when you serve your sentence, you will be released into the community. I accept the submission of your counsel that the sentences I impose must not crush your genuine hopes of rehabilitation, which will be enhanced by the possibility of an appropriate period of parole.
54 Cetin Mirik and Metin Mirik, I will now announce your sentences.
55 Cetin Mirik, for the crime of intentionally causing serious injury to Refik Kortel at Fitzroy North on 13 April 2005, you will be sentenced to imprisonment for 7 years. For the crime of raping Mr Kortel you will be sentenced to imprisonment for 4 years. I order that 2 years of the sentence of imprisonment imposed for the crime of rape shall be served cumulatively upon the sentence of imprisonment imposed for the crime of intentionally causing serious injury. The remaining part of the sentence of imprisonment imposed for the crime of rape shall be served concurrently. Accordingly the total effective sentence is imprisonment for 9 years. You will serve a minimum term of 6 years and 6 months before being eligible for parole. You have served a period of pre-sentence detention of 679 days exclusive of today and I direct that this be reckoned in the calculation of the period of your imprisonment.
56 Metin Mirik, for the crime of intentionally causing serious injury to Refik Kortel at Fitzroy North on 13 April 2005, you will be sentenced to imprisonment for 6 years and 6 months. You will serve a minimum term of 4 years and 6 months before being eligible for parole. You have served a period of pre-sentence detention of 279 days exclusive of today and I direct that this be reckoned in the calculation of the period of your imprisonment.
DPP
Mirik & Mirik [2007] VSC 20