DPP v Mirik & Mirik [2007] VSCA 150

Court of Appeal (Vic)|2007-08-06|Before: ASHLEY and KELLAM JJA, and KAYE AJA

CRIMINAL LAW - Sentence - Crown appeal - First and second respondents plea of guilty to one count of intentionally causing serious injury - First respondent plea of guilty to count of rape - Second respondent plea made on agreed basis that serious internal injuries sustained by victim as a consequence of the rape constituted part of the serious injury for which second respondent responsible - Such basis untenable at law - On appeal sentences assessed on basis that internal injuries sustained by victim were the consequence of the rape - Sentences on both respondents for intentionally causing serious injury held not manifestly inadequate - Sentence of four years' imprisonment on first respondent for rape held manifestly inadequate - First respondent re-sentenced.

2 I agree in the disposition of this matter as proposed by Kaye AJA and I do so for the reasons advanced by him in his judgment.

**3 The respondents, Cetin Mirik and Metin Mirik, are twin brothers, having been born on 14 January 1954. On 11 October 2005 they were each committed at the Melbourne Magistrates' Court to stand trial in the Supreme Court on five charges arising from an incident which occurred at Fitzroy North on 13 April 2005. On 31 January 2006, at a preliminary directions hearing before the Court, a presentment was filed containing four counts against each respondent, namely attempted murder, intentionally causing serious injury, recklessly causing serious injury and rape. On 16 November 2006 the matter was listed for hearing before a judge of the Trial Division. On that date, as a result of negotiations between the parties, a further presentment was filed over. That presentment preferred, against each respondent, one count of intentionally causing serious injury to a named individual, to whom I shall refer as "RK", on 13 April 2005 at North Fitzroy. It preferred a second count against the first respondent, Cetin Mirik, that at North Fitzroy on the same date he raped RK by intentionally sexually penetrating him by introducing plant material into his anus without his consent.

4 After the respondents pleaded guilty to those charges, counsel for each respondent made submissions in relation to sentence. At the conclusion of those submissions the judge reserved his sentence, and remanded the respondents in custody. On 24 November 2006, and at the request of the prosecutor, his Honour held a mention hearing for the purpose of enabling the prosecutor to clarify the**

agreed factual basis relating to the actions of both respondents in the respect of count 1. On 21 February 2007 his Honour pronounced sentence on each respondent. His Honour sentenced Cetin Mirik on count 1, intentionally causing serious injury, to a term of seven years' imprisonment, and on count 2, the count of rape, to a term of four years' imprisonment. His Honour ordered that two years of the sentence imposed in respect of count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of nine years' imprisonment. His Honour fixed a non-parole period of six years and six months and made a declaration as to pre-sentence detention of 679 days. His Honour sentenced the second respondent, Metin Mirik, to a term of imprisonment of six years and six months on the count 1, intentionally causing serious injury, with a non-parole period of four years and six months, and made a declaration as to pre-sentence detention of 279 days.

**5 On 16 March 2007 the appellant, the Director of Public Prosecutions, gave notice of appeal in respect of the sentences passed on both respondents. In each case the appellant relies on one ground of appeal, namely that the sentences are each manifestly inadequate.

6 The facts concerning the commission of the offences may be summarised quite briefly.

7 The two respondents had known the victim RK for approximately 30 years. About 15 to 20 years before the offence, both accused had had a falling out with RK, and they did not socialise with each other for some time.

8 Metin Mirik commenced to socialise with RK again approximately 18 months before the date of the offences. On the morning of 12 April 2005 Metin Mirik met RK at a mutual friend's house in Broadmeadows. They commenced drinking alcohol at those premises, and continued to drink alcohol throughout that day and the following night and morning.

9 In the early evening of 12 April 2005, Metin Mirik and RK left Broadmeadows and drove to another friend's flat in Coburg. At that time they were observed to be drunk but they were each in a happy frame of mind. They departed from the Coburg premises shortly after 8pm, and travelled to Cetin Mirik's flat in North Fitzroy. At some stage during the evening the three men then went to a nearby hotel, where they drank and played pool for approximately two hours. They then returned to Cetin Mirik's flat and continued drinking there.

10 RK has no real memory of the events which occurred after he arrived at Cetin Mirik's flat. However, at approximately 7.30am on the next morning, 13 April 2005, neighbours heard yelling and banging noises coming from the flat. It appears that an argument had commenced inside the flat between RK and the two respondents. The argument became physical, and during it the three men moved outside to the courtyard area of the block of flats. At that time various parts of the incident were witnessed by neighbours.

11 RK was observed to be lying naked on concrete in the courtyard and barely moving while he was attacked by both respondents. Metin Mirik repeatedly struck RK with a brick to his head and his body. At the same time Cetin Mirik struck RK with a bicycle frame. At some stage during the incident, the respondents rolled RK on to his stomach and continued to hit him. Cetin Mirik put down the bicycle frame and continued to hit RK with the brick. Both respondents were also observed to stomp on RK and kick him in the head several times. During that incident a witness heard one of the respondents yell out in Turkish "We will kill you, we will finish you off. "

12 When the respondents ceased attacking RK, they attempted to conceal him from view by pushing his body into a 50 centimetre gap between the concrete floor of the veranda of the flats and the garden bed underneath it. They were unsuccessful in that effort and after a while gave up. They then went to an outside laundry nearby and washed themselves.

13 The neighbours who had witnessed the attack on RK contacted the police. When the police arrived, they located RK in an unconscious state in the courtyard where he had been attacked. He had six branches from a nearby tree protruding from his anus. Those branches had been forced into his anus, during the attack, by Cetin Mirik.

14 RK was conveyed to the Royal Melbourne Hospital for emergency treatment. He was found to have multiple facial fractures, and a sub-dural haematoma. He had sustained multiple and severe bruising to the head and body. He was also found to have suffered multiple perforations to the rectum and the anal canal. The six sticks inserted into his anus had each breached the rectal mucosa and ended up in the area of the pelvis, stomach, liver and heart. The sticks caused serious internal injuries which required immediate surgery. The rectum was beyond repair. RK will need to have a colostomy bag for the rest of his life. It is clear that the injuries sustained by RK were particularly serious and life-threatening. He spent six days connected to a ventilator. On the ninth day of his hospitalisation his condition deteriorated and he needed to return to theatre. He remained in hospital until 6 May 2005.

15 Both respondents were interviewed by the police. Cetin Mirik initially claimed to have no recall of the events. However, on further questioning, he told the police he could remember Metin and RK pushing each other. He then told the police he could recall punching RK twice. He stated that he did so because RK was responsible for an earlier assault upon his brother, some twenty or more years previously, and that he was angry with RK. He admitted throwing the bicycle frame at RK, but said that the frame did not hit him. He could not remember how RK became naked, or how the branches became inserted into his anus. He agreed that after RK ended up on the ground, neither he nor his brother attempted to give him any help.

16 Metin Mirik told the police that RK and he commenced to argue inside Cetin's flat. The argument related to past assaults upon Metin, in which he believed RK had been involved. He also stated that he had told RK not to leave used syringes around his house. He claimed that RK punched him in the face and that as a result they traded blows. Cetin joined in the altercation and it moved outside. Metin told the police that his brother and he punched and kicked RK, but neither of them struck him with a brick. When asked what RK was doing during that fight, he replied no that RK could not do much "Cos there was two of us". Metin said that Cetin threw a bicycle frame at RK, but he could not remember how the branches came to be inserted in the victim's anus. He also told the police that he kicked and punched RK four or five times, and that he kicked RK hard on the face.

17 At the hearing of sentencing submissions, the prosecutor opened the facts of the case to his Honour substantially along the lines I have summarised above. The prosecutor then stated as follows:**

"The Crown's position is that both accused were acting in concert and so are both jointly responsible for all the injuries suffered by the victim. However, Cetin Mirik alone is presented on the count of rape as it is accepted that he is the offender who inserted the branches in the victim's anus, and Metin Mirik was not directly involved in that part of the assault. So whilst the infliction of serious injury was within the scope of a common understanding ... the precise means by which Cetin would inflict those injuries were not. And that is why it's only Cetin who is presented on the count of rape."

**18 Counsel for Cetin Mirik then made a plea in mitigation of sentence, following which a plea was made by counsel for Metin Mirik. In the course of the latter plea, counsel for Metin Mirik pointed out that his client had not been charged with the rape constituted by the insertion of the sticks into the anus of the victim. Counsel agreed with the proposition put to him by the judge that Metin Mirik was not responsible for the "consequences of extreme injury" which flowed from that action, but was only responsible for the consequences of the serious injury - the injuries around the head and face - which flowed from the attack upon the victim for which Metin Mirik was responsible.

19 As a result of that exchange between his Honour and counsel, the prosecutor requested the mention before his Honour on 24 November 2006. At that hearing, the prosecutor told the judge that it was the position of the Crown that both accused were acting in concert and therefore both were guilty and responsible for " all the injuries suffered by the victim". The prosecutor stated:**

"The matter was settled on the basis that that would be the case. I wasn't privy to the settlement. My learned friend (counsel for Metin Mirik) was, and if I state anything that is incorrect, I am sure he'll correct me, but it was settled on the basis that the internal injuries, they were of severity and fell within the scope of the understanding between the two accused and therefore, because they were acting in concert, he was legally responsible for those injuries. What wasn't within the scope of the understanding was the fact that those injuries would be inflicted by way of a sexual assault, and that is why he wasn't presented on count 2, so whilst it's conceded that it wasn't within the understanding between the accused that the injuries would be inflicted by way of sexual assault, the severity of the injuries are within the scope, and therefore it was accepted and settled on the basis that Mr Metin Mirik would be responsible for all the injuries, both, if you like, the head and body injuries from the brick and the bike, and also the internal injuries from the insertion of the sticks, but not the method by which those injuries were inflicted."

**20 In his reasons for sentence, the judge outlined the circumstances in which the offences were committed. He noted that it was difficult to understand why the two respondents had attacked RK. His Honour considered that a significant part of the explanation for the commission of the offences was that both accused were highly intoxicated after a prolonged period of drinking, and had lost control of themselves when an argument had erupted between them and RK. His Honour accepted that both respondents were genuinely remorseful for their actions. His Honour then outlined the personal circumstances of the two respondents. In determining the sentence to be imposed, he noted that a significant sentencing consideration must be the gravity of the offences for which the respondents had pleaded guilty. He stated that there was nothing to distinguish between the level of responsibility of the two respondents for the commission of the offence of intentionally causing serious injury. His Honour stated that the sentence for that offence must reflect its "very serious gravity." His Honour noted that Cetin Mirik alone had pleaded guilty to the crime of rape, but stated that as the rape and the intentional causing of serious injury were committed during the course of the single criminal episode, that should be reflected in a reduced head sentence and a measure of concurrency in the sentence for the crime.

21 His Honour stated that both general and specific deterrence must be significant sentencing considerations. His Honour took into account the fact that the offences were not pre-planned, but were committed spontaneously when both accused were in a drunken state. His Honour considered that the most significant mitigating factor was the guilty plea entered on behalf of the two respondents. In addition, his Honour took into account the fact that both the respondents had disadvantaged personal backgrounds. His Honour then stated that as both respondents were 53 years age, he should not impose a sentence which would crush the genuine hopes of rehabilitation for each respondent. Based on those considerations, his Honour imposed the sentences to which we have already referred.

22 On the appeal before us, the principal submission made on behalf of the Director of Public Prosecutions was that the sentences imposed on both respondents on count 1 were manifestly inadequate, since they failed properly to reflect the seriousness of the internal injuries sustained by RK to the rectum and to his other internal organs. Counsel for the Director submitted that on the case presented to him, the sentencing judge was obliged to take those injuries into account as part of the consequences of the offence of intentionally causing serious injury to which both respondents had pleaded guilty. He submitted that the sentences of 7 years, and 6 years and 6 months, respectively imposed on Cetin and Metin Mirik manifestly failed to take into account that circumstance.

23 Counsel conceded that, if contrary to the foregoing submission, the internal injuries sustained by RK were not to be taken into account in determining the sentence to be imposed on count 1, then he could not maintain that the sentences imposed on the respondents on that count were manifestly inadequate. He therefore accepted that, if this Court were to reach the conclusion that the internal injuries should not be taken into account in determining the sentence on count 1, the appeal of the Director against the sentence imposed on Metin Mirik must fail. However, in such a circumstance he submitted that, as an alternative, the sentence imposed on Cetin Mirik on count 2, the charge of rape, was manifestly inadequate, because it failed to take into account the gravity of the injuries occasioned to the victim as a consequence of that offence.

24 In response, senior counsel for the first respondent, Cetin Mirik, submitted that it would have been inappropriate for the sentencing judge to have taken into account the internal injuries suffered by RK in determining the sentence to be imposed on count 1. He contended that in the factual circumstances of this case, there is a clear delineation between the injuries which are the subject of count 1, and the injuries which were the subject of the offence charged in count 2. Thus, he submitted that in determining the appropriate sentence to be imposed on count 2, the sentencing judge was obliged to take into account the internal injuries sustained by RK as a consequence of the insertion of the branches into his anus by Cetin Mirik. He submitted that, in that light, the sentence imposed on his client on count 1 was not manifestly inadequate. Counsel did not present any argument against the proposition that, in that light, the sentence of 4 years' imprisonment imposed on Cetin Mirik on count 2 was manifestly inadequate, although he did not concede that to be the case. His primary submission was that the total sentence imposed on his client of 9 years' imprisonment, with a non-parole period of 6 years and 6 months, adequately reflected the gravity of the offending by his client when taken as a whole. Thus, he submitted that the total sentence imposed on his client was not manifestly inadequate.

25 Senior counsel for the second respondent, Metin Mirik, submitted that it was not open to the sentencing judge to sentence his client on count 1 by taking into account the internal injuries to the rectum and other organs. He submitted that, in the absence of a finding or plea of guilty by his client to a charge of rape, his client could not be sentenced on the basis of being responsible for the injuries which were the consequence of that crime. Accordingly, he submitted that the sentence imposed on his client was not manifestly inadequate as a reflection of the injuries intentionally inflicted to the victim's head, skull and upper torso. He sensibly conceded that if the sentencing judge took into account, or was obliged to take into account, all of the injuries sustained by RK, including the injuries to the rectum, then the sentence imposed on his client on the charge of intentionally causing serious injury was manifestly inadequate.

26 The submissions and concessions of counsel, to which I have just referred, raise two issues which are of central importance to the determination of this appeal, namely:**

Did the judge, in sentencing the two respondents on count 1, take into account the internal injuries sustained by RK as a consequence of the insertion of the tree branches into his anus?
Was the sentencing judge obliged to take those injuries into account when determining the appropriate sentence to be imposed on count 1?

27 The answer to the first question is not entirely clear cut. At the mention hearing on 24 November 2006, his Honour did not respond to the position put to him by the prosecutor and acquiesced in by counsel for Metin Mirik. His Honour's reasons do not expressly refer to that matter. However, in my view, on a proper analysis of those reasons, it is sufficiently clear that his Honour did not sentence either respondent on the basis that the injuries, sustained by RK as a result of the penetration of his anus by the sticks, were taken into account in determining the sentence imposed on count 1, the charge of intentionally causing serious injury. Towards the conclusion of the reasons for sentence, his Honour stated that both respondents had committed the offence of intentionally causing serious injury. His Honour stated that the two respondents beat RK, and that a brick and old bicycle frame were used as a weapon. His Honour expressed the view that there was nothing to distinguish between the level of responsibility of either respondent to the commission of that crime. In the next paragraph the judge addressed Cetin Mirik, and stated that he went further and committed the crime of rape on RK, "who suffered very grave injuries as a result". He told RK that he alone bore criminal responsibility for committing that offence, additional to his responsibility for the crime of intentionally causing serious injury. His Honour concluded:

"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."

**28 The sections of the reasons for sentence, to which I have just referred, suggest that it is probable that, in determining the sentence to be imposed on count 1, the judge did not take into account the injury sustained by RK as a consequence of the forceful penetration of his anus. On the appeal before us counsel did not submit to the contrary.

29 The second question which I have posited above is whether, in determining the appropriate sentence to be imposed on count 1, the judge was obliged to take into account the severe internal injuries sustained by RK. Counsel for the appellant submitted that, on the case presented to the judge, those injuries fell within the common purpose of the two respondents to intentionally cause serious injury to RK, notwithstanding that the manner of infliction of those injuries did not. He submitted that the two respondents had pleaded guilty to count 1 on the basis that their agreed common purpose was to cause serious injury to RK using any objects which were at hand, such as a brick, a bicycle frame or sticks. Thus, he submitted that the use of sticks to inflict injury fell within the agreed purpose undertaken by the respondents. However, the infliction of those injuries by a sexual assault did not come within the ambit of the agreed common purpose. Nonetheless, because it was part of the agreed common purpose that objects such as a stick be used to inflict serious injury on the victim, the consequences flowing from the penetration of the victim's anus with those sticks fell within the ambit of the common purpose undertaken by the two respondents. In support of that proposition, counsel relied on the following passage from the joint judgment of the High Court in McAuliffe v R:[1]**

"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. ... [T]he complicity of a secondary party may ... be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose."

**30 In my view, the passage in McAuliffe, to which counsel referred, does not support the proposition advanced by him. The principles in McAuliffe's case, and in other cases such as Johns v R,[2] make it plain that an accused is only criminally liable for the acts of another if those acts fall within the scope of the joint common purpose undertaken by the parties. Thus, the critical question is, what acts fell within the scope of the common purpose constituted by the commission by the two respondents of the charge in count 1, intentionally causing serious injury? Certainly, it was within the scope of that common purpose that the two respondents used whatever weapons were available with which to beat their victim. However, it was acknowledged by the prosecutor - and indeed evidenced by the fact that Metin Mirik was not charged with the offence of rape on the presentment to which he pleaded guilty - that the act of rape perpetrated by Cetin Mirik did not fall within the common purpose of the two respondents. So much was made plain by the prosecutor, both at the initial plea hearing, and at the subsequent mention, before his Honour. On each occasion, the prosecutor conceded that the act of rape by Cetin Mirik on the victim did not fall within the common understanding of the two parties.

31 What was put to the judge at the plea hearing, and on the mention, was that notwithstanding that the act of rape did not fall within the common understanding between the two respondents, nonetheless Metin Mirik was responsible, under count 1, for the consequences of that act. Thus stated, the position put to the sentencing judge by the Crown, and acquiesced in by counsel for the respondents, was legally and logically untenable. Both as an exercise of logic, and as a matter of fundamental legal principle, an accused cannot be criminally liable for the consequences of an act if he is not criminally liable also for the act which has caused those consequences. In particular, in the circumstances of this case, the perforations to the rectum, and the consequential internal injuries to the victim, resulted solely from the act of rape perpetrated by Cetin Mirik. If Metin Mirik was not liable, at law, for that criminal act, then he could not be responsible for the consequences of it, and thus could not be liable to punishment in respect of those consequences.

32 It is well established that an accused may only be punished for a criminal offence of which he has been convicted, or to which he has pleaded guilty. While it is also a principle of sentencing that the punishment imposed on an offender should take into account all the circumstances of the offence, nonetheless that principle is subject to the more fundamental and important principle that no one should be punished for an offence of which he has not been convicted.[3] Thus the injuries to the victim's rectum, and the injuries to his internal organs, may not be taken into account against Metin Mirik, on the basis that, somehow, the infliction of those injuries was part of the circumstances of the offence to which Metin Mirik had pleaded guilty. However, and in any event, I consider that on the correct analysis of the case, it could not properly be said that those injuries formed part of the "circumstances" of the offending of Metin Mirik. Put simply, and at the risk of repetition, the Crown accepted that Metin Mirik was not criminally liable for the act of rape perpetrated by Cetin Mirik. On no view could he be held criminally liable for, nor punished in respect of, the injuries sustained by RK as a consequence of that crime.

33 It follows that, on count 1, the proper sentence to be imposed on Metin Mirik could only take into account the consequences of the assault for which he was responsible, namely, the injuries to the victim's face, head and torso. For a different reason, I also consider that, in respect of count 1, the sentence imposed on Cetin Mirik could only lawfully take into account the same injuries. In my view, such a conclusion is dictated by the decision of the Court of Appeal in R v Sessions.[4] In that case, the accused pleaded guilty to one count of rape and one count of recklessly causing serious injury. The accused had penetrated the vagina of an 8 month old baby with his finger, causing her serious injury. He was sentenced to a term of imprisonment of 3 years on the rape, and 5 years for the charge of recklessly causing serious injury. With cumulation the sentencing judge imposed a sentence of 6 years. The judge sentenced the accused on the basis that the rape was constituted by the insertion by the accused of his finger to the slightest extent into the victim's vagina, and the offence of recklessly causing serious injury was constituted by the continued forceful penetration. The Court of Appeal unanimously held that the accused could not be lawfully convicted of, nor sentenced for, both offences. In the circumstances of the case, the Court held that there was a single act by the accused in penetrating the victim. The distinction by the trial judge between the act of penetration, and the consequences, was illusory and erroneous. The Court held that the accused's conduct could not be divided in the manner undertaken by the sentencing judge. In reaching that conclusion, Hayne JA (with whom Batt JA and Eames AJA agreed) also held that the serious injury to the victim was a matter which the sentencing judge was entitled, and indeed obliged, to take into account in determining the appropriate sentence for the charge of rape.[5]

34 In my view, it follows from the decision in Sessions that the injuries sustained by RK to his rectum and internal organs are matters which could only properly be taken into account in determining and evaluating the sentence imposed on Cetin Mirik in respect of count 2 (rape), but not count 1 (intentionally causing serious injury). Any attempted distinction between the act of penetration constituting the rape, and the consequences of that act, would be illusory. Accordingly, in considering the adequacy of the sentences imposed by the sentencing judge on both respondents in respect of count 1, the injuries to the internal organs of the victim may not be taken into account.

35 As I have stated, it was acknowledged by counsel for the Director, and in my view correctly so, that if the sentencing judge was not required to take into account the internal injury sustained by the victim, then he could not maintain the appeal in respect of the sentences imposed on count 1. Accordingly, it follows that the appeal by the Director in respect of the sentence imposed on Metin Mirik must fail. I turn, therefore, to the appeal in respect of the sentence imposed on Cetin Mirik in respect of the count of rape, count 2, and in respect of the total sentence imposed by his Honour on Cetin Mirik.

36 The sole ground of appeal relied upon by the Director in each case is that the sentence imposed on each respondent was manifestly inadequate. In the notice of appeal, the Director has provided particulars of that ground. This being an appeal by the Director, in order that the Court disturb the sentence imposed on count 2, it must reveal such manifest inadequacy as to constitute an error in principle, or, alternatively, the sentence must be so disproportionate to the gravity of the crime as to shock the public conscience.[6]

37 The function of a trial judge in imposing sentence involves the exercise of a judicial discretion. In order to succeed, the appellant, in accordance with the principles to which I have just referred, must establish that the judge committed an error in law in exercising his discretion. Where, as in this case, the Director has relied on the ground of manifest inadequacy, it must be demonstrated that the sentence is so unreasonable or unjust that the appellate court can conclude that the trial judge failed to exercise his discretion properly.[7] Ordinarily, the question of the manifest inadequacy (or manifest excess) of a sentence does not admit of much amplification.[8]

38 The question, then, is whether the sentence imposed on count 2 was so "unreasonable or plainly unjust"[9] as to bespeak an error, otherwise not identified, in the exercise by the learned judge of his sentencing discretion. In addressing that question, it is appropriate first to outline Cetin Mirik's personal circumstances as they were described at the plea hearing.

39 Cetin Mirik was born in Turkey, and migrated to Australia with his parents in 1969, at the age of 15. He attended school for a short period of time, but left because he was bullied due to his migrant background. During the ensuing years he had at least 15 different employers, working in manufacturing, catering, maintenance, and gardening. During that period he was unemployed on a number of occasions. Ultimately in 1994, or 1995, he was placed on a disability pension after he had been diagnosed with angina. For two years before the offence he had been working for a period of two or three hours per day, twice a week, carrying out maintenance duties for a hotel and set of units in Carlton.

40 Cetin Mirik was married in Turkey in the early 1980s. There was one son from that relationship. The marriage broke down in 1985, and Cetin Mirik last saw his son approximately four years before the offence. Subsequently Cetin had had a 10 to 12 year relationship with another woman. The relationship was turbulent and unstable.

41 Cetin Mirik had a history of heavy drinking. He commenced drinking at a very early age, and commenced binge drinking during his teenage years. After his marriage broke down, he drank alcohol every day for a period of two years. Before the attack on RK he had been drinking alcohol two days each week. In addition, he used marijuana on the weekends to relax, to assist with his sleep and to manage his pain. He had also experimented with heroin and amphetamines but had not used either of those substances consistently.

42 A report of Ms Pamela Matthews, a forensic psychologist, was tendered on behalf of Cetin Mirik. The report indicated that he had an overall IQ of 54, placing his functioning in the moderate level of intellectual disability. Testing and history taking suggested that he always cognitively functioned in the moderate to borderline range of intellectual ability. He also exhibited symptoms of a borderline personality disorder, which reflected in unstable interpersonal relationships, impulsivity in substance use and behaviour, chronic feelings of loneliness and boredom, and inappropriate intense anger. Ms Matthews considered that there were three relevant aspects to Cetin Mirik's history, namely, the borderline personality disorder, a post traumatic emotional trigger of physiological and psychological responsiveness to being bullied during his childhood and adult years, and a highly ambivalent relationship with his twin brother Metin. She considered that on the day of the offences those three emotional aspects had coalesced, and, in combination with low cognitive functioning and disinhibition associated with alcohol abuse, had resulted in the violent offences for which he was then charged. Ms Matthews expressed the view that given Cetin Mirik's low level of cognitive functioning, his rehabilitative needs would be best addressed in programs specifically targeted at low functioning offenders. She was of the opinion that Cetin Mirik would be vulnerable to being intimidated and manipulated whilst in custody.

43 Cetin Mirik had a substantial number of convictions between 1989 and 2001. A number of those convictions concerned alcohol and drug related offences, and offences involving dishonesty. He had been also convicted of offences involving violence on five previous occasions. Those offences included 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, he was convicted on 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 the danger of a person. Cetin Mirik had spent at least two periods of time in prison, totalling some seven months.

44 I turn then to the sentence imposed by the sentencing judge on Cetin Mirik on count 2, the charge of rape. As I have stated, in my view, and consistent with the Sessions case, the sentencing judge was not only entitled, but indeed required, to take into account the consequences of the act of rape to which Cetin Mirik pleaded guilty, namely, the very grave injuries to the victim's rectum and his internal organs. As I have stated, all 6 sticks were inserted with such force as to breach the rectal mucosa. Two of the sticks ended up in the victim's pelvis and one in the right iliac fossa. Two sticks penetrated the retro-peritoneal space and the duodenum. One stick ended up in the victim's liver, and another between his right lobe. The injuries were life threatening. On RK's admission to hospital his life was, to a real extent, in the balance. The injuries could only have resulted from an invasion of the victim's body, perpetrated with substantial force, and in total disregard of his well-being, safety and dignity. The conduct of Cetin Mirik in committing the rape was utterly cruel, vicious and disgusting. He clearly intended his behaviour to be a display of arrant contempt for his victim, in order to degrade and humiliate him. Not content with what he had done to RK, he compounded his wrongdoing by callously seeking to conceal RK's body.[10]

45 Plainly, the actions constituting the rape, and the appalling injuries sustained by the victim which were a necessary consequence of those actions, necessitated that the sentencing judge proceed on the basis that this was a particularly serious instance of the crime of rape. The sentence imposed, being less than one sixth of the maximum sentence of 25 years prescribed by statute, on its face fell well short of what could be described, on any view, as adequate to reflect the nature and gravity of the offending to which Cetin Mirik pleaded guilty. Taking into account all of the mitigating circumstances to which I have referred, and indeed taking a generous view as to the palliating effect of those circumstances, nonetheless the conclusion inevitably follows that the sentence of four years' imprisonment for the rape perpetrated by Cetin Mirik was extraordinarily light, and fell significantly short of a sentence which could be described as adequate. In particular, the sentence does not, in any meaningful way, adequately express the Court's abhorrence and condemnation of the actions of Cetin Mirik. Nor is it sufficient, on any view, to act as a general deterrent, or even to be an appropriate specific deterrent to Cetin Mirik himself.

46 It therefore follows that I am of the view that the appeal of the Director against Cetin Mirik on count 2 should succeed. In those circumstances, it falls to this Court to re-sentence Cetin Mirik on that count.

47 In the case of each accused, the learned judge found mitigating circumstances including the plea of guilty, the existence of remorse, the disadvantaged background of each respondent, and the fact that each respondent was of low intelligence. In respect of the last factor the sentencing judge, and counsel who appeared before him, did not expressly refer to the principles stated in cases such as R v Anderson[11] and R v Tsiaras.[12] In the case of Cetin Mirik, the report of Ms Matthews would justify some "sensible moderation" of the sentence which might otherwise be appropriate in the circumstances of the offence.[13] However, on a proper analysis, the evidence would, at most, only justify a limited degree of moderation of the otherwise appropriate sentence in his case. The report of Ms Matthews only suggested that Cetin's low intellect was one of a number of factors which played a role in the offending. She did not suggest that Mirik lacked appropriate insight into and understanding of his offending. The report of Ms Matthews also suggested that Cetin Mirik would be vulnerable to being intimidated and manipulated while in custody. However, she did not state that he is, to any real degree, at risk. As I have stated, each of those circumstances would justify a limited degree of moderation of the sentence.

48 On the other hand, there is the circumstance that Cetin Mirik had a long history of previous offences, including offences involving violence. He had already twice served terms of imprisonment in respect of those offences.

49 The sentencing judge also took into account the fact that the two respondents were then 53 years age, and that he ought not to impose a sentence which might be "crushing" on them. However, the authorities have emphasised that the age of an offender cannot be allowed to justify the imposition of an unacceptably inappropriate sentence.[14] In this case, the age of the two respondents, and their state of health, were not such as could justify the imposition of a less than adequate sentence.

50 In re-sentencing Cetin Mirik on count 2, the principle of double jeopardy requires that this Court impose a sentence on that count which would be less severe than the sentence which I consider should have been imposed on count 2 by the primary judge. In addition, the principles of totality and proportionality require some moderation of the sentence, to allow for some cumulation with the sentence imposed on count 1. Taking into account, and giving full effect to, those principles, and to the mitigating circumstances to which I have adverted, I consider that it is appropriate to re-sentence Cetin Mirik on count 2 to a term of imprisonment of 8 years. I emphasise that in specifying that sentence in respect of count 2, the term of imprisonment imposed by way of re-sentencing is substantially less than what I consider ought to have been imposed on Cetin Mirik for the offending constituted by the rape, notwithstanding his limited intellect, and notwithstanding the other mitigating circumstances found by the primary judge. Nonetheless, this Court must proceed by way of re-sentence, and in doing so must give full faith to the principles of double jeopardy.

51 The question which was the subject of the main submissions put by counsel for Cetin Mirik concerned the issue of totality. In particular, he submitted that the total sentence imposed on both counts, namely 9 years' imprisonment with a minimum of 6 years and 6 months, could not be said to be manifestly inadequate as punishment for the criminality of Cetin Mirik comprised by both counts.

52 As I have already stated, the offending constituting the rape, charged in count 2, was a particularly serious instance of that offence. However, at the same time, it should not be overlooked that the offending in count 1 was also particularly serious, both in terms of it constituting an instance of a very serious criminal offence, and also in terms of the circumstances involving the commission of the offence in this particular case.

53 In a general sense the offence of intentionally causing serious injury is, of itself, a very serious offence. As pointed out by Batt JA in DPP v Lawrence,[15] the offence is one of the "most serious of non-homicidal injury offences", as it is constituted by "the concurrence of serious injury with the intention to cause it". The maximum sentence prescribed for the offence is 20 years' imprisonment. In DPP v Zullo,[16] Nettle JA (with whom Winneke P and Batt JA agreed) expressed the view that "the top of the range" sentence for the offence of intentionally causing serious injury should be "upwards of 15 years".[17]

54 Specifically, the circumstances of this case constitute it as a particularly serious instance of the crime charged. The injuries sustained by RK as a result of the offence were themselves particularly grave. Those injuries, and in particular the head and facial injuries, resulted from a sustained, vicious and cowardly attack by Cetin Mirik and his brother. Most of those injuries appear to have been inflicted on RK while he was lying helpless and defenceless on the ground, and at the mercy of both respondents. The injuries were inflicted by the use of weapons including a brick and a bicycle frame. He was stomped on and kicked several times in the head. The sub-dural haematoma was potentially life threatening. The facial injuries were extensive and there were multiple bruises to the victim's body. Those circumstances, in my view, necessitate, on a proper exercise of the sentencing discretion, the view that the case before the sentencing judge was a particularly serious instance of the crime of intentionally causing serious injury.

55 On the present appeals counsel for the Crown and for Cetin Mirik both referred to sentencing statistics. In general, sentencing statistics are of limited value since the sentence imposed in each case is necessarily the result of an intuitive synthesis of a whole host of sentencing factors, many of which are particular and peculiar to the case at hand. The statistics produced by both parties do not, in the present case, lend much assistance to the proper characterisation of the offence. As I have stated, on the plain facts agreed by the parties, the Court could only proceed on the basis that the offence comprised in count 1 was particularly serious.

56 The principles of moderation and totality are well established in the context of an accused person who is to be sentenced on a number of counts. However, they do not justify the imposition of artificially inadequate sentences in order to accommodate the rules relating to cumulation.[18] Nor do they justify the imposition of concurrent sentences in such a way as to disproportionately diminish the proper role of each individual sentence.[19]

57 In this case, the circumstances of the offending in counts 1 and 2 call for a moderate measure of concurrency. Such concurrency must allow for the fact that the two offences arose as part of the one incident. Further, it is necessary to exercise a degree of concurrency in order to properly cater for the principles of moderation and totality. Nonetheless, the sentencing principles require that there be a measure of cumulation which reflects adequately the circumstance that the offending constituted by the rape (count 2) was offending over and above the conduct constituted by the offence of intentionally causing serious injury (count 1).

58 Taking all those considerations into account, and in particular allowing for the principles of double jeopardy, I would therefore propose the following disposition by way of re-sentence. First, the sentence of 7 years' imprisonment on count 1 should be confirmed. Secondly, on count 2, Cetin Mirik should be re-sentenced to a term of 8 years' imprisonment. It should be ordered that 3 years of the term of imprisonment to be imposed on count 1 be served cumulatively with the sentence imposed on count 2, making a total effective sentence of 11 years' imprisonment. I would fix a minimum non-parole period of 8 years' imprisonment.**

[3] R v. De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389, 392 (Gibbs CJ, with whom Mason and Murphy JJ agreed); R v Newman & Turnbull [1997] 1 VR 146, 150 (Winneke P, with whom Hayne JA and Crockett AJA agreed).

[4] [1998] 2 VR 304; see also R v McMutrie [2002] SASC 253; (2002) 83 SASR 261, [10]-[11] (Gray J, with whom Perry and Williams JJ concurred); cf R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546, [44] (Vincent JA); R v Bekhazi [2001] VSCA 178; (2001) 3 VR 321, [10]-[15] (Winneke P).

[6] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA); DPP v Johnston [2004] VSCA 150, [27]; GAS v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198, 204.

[7] House v R [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon Evatt and McTiernan JJ); R v Langdon [2004] VSCA 205; (2004) 11 VR 18, [71]-[75] (Gillard AJA); DPP v Low [2004] VSCA 250, [20] (Winneke P).

[8] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 326; R v Monardo [2005] VSCA 115, [28] (Batt JA).

[9] House v R [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon Evatt and McTiernan JJ).

[13] R v Yaldiz [1998] 2 VR 376, 381 (Batt JA); R v Verdins, Buckley; R v Vo [2007] VSCA 102, [17].

[14] R v Bazley (1993) 65A Crim R 154, 158; R v Whyte [2004] VSCA 5, [29] (Winneke P); R v Gregory [2000] VSCA 212, [21] (Winneke P).

[17] See also R v Huynh [2004] VSCA 156, [24] (Nettle JA); R v Tafa Sa [2004] VSCA 182, [21]-[22] (Eames JA).

[18] R v Lomax [1998] 1 VR 551, 564 (Ormiston JA).

[19] R v O'Rourke [1997] 1 VR 246, 252.

At a glance

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Judgment (84 paragraphs)

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Cases Cited (11)