DPP v Torun [2015] VSCA 15

Court of Appeal (Vic)|2015-02-17|Before: Ashley JA

CRIMINAL LAW - Sentencing - Director's appeal - Manslaughter by unlawful and dangerous act - Unintended discharge of firearm - Sentence of 8 years' imprisonment with non-parole period of 5 years - Not manifestly inadequate - No point of principle.

**1 I have had the advantage of reading in draft the joint judgment of Whelan and Beach JJA. I respectfully agree with their Honours that this appeal should be dismissed. I do so very substantially for the reasons which they give.

2 I desire to add a little about the prosecution of this matter by the Crown on the plea, and by the Director of Public Prosecutions in this Court. I consider that it does much to explain why an appeal which, in my view, lacked merit, was instituted and pursued.

3 As the joint judgment records, the respondent was originally charged with murder. Submissions made on the plea show that, before the committal hearing, the respondent offered to plead guilty to manslaughter. The plea was not then accepted, but it was accepted after that hearing.

4 The prosecutor relied at the plea upon a summary of prosecution opening. The summary, dated 13 March 2014, is part of the material before this Court.

5 13 March 2014 was only a few days before the first day of the plea hearing. But it was about five weeks after the Crown had decided to accept the respondent's plea of guilty to manslaughter.

6 That plea was founded upon the agreed facts recounted at paragraph 26 in the joint judgment, supplemented by the judge's findings that the respondent deliberately pointed the gun at the victim, Kara Doyle, and deliberately pulled the trigger. In all, the agreed and the additional facts made this a killing by a drug-affected man who had no intention of killing or injuring the victim, but was rather a killing in the course of play-acting gone terribly wrong.

7 But notwithstanding the circumstances of offending as they were confined by agreement between the Crown and the defence, the summary to which I have referred was devoted in large part to a description of the respondent's volatile relationship with Ms Doyle over a period of months, to his and her use of illegal drugs, to his erratic and threatening conduct towards a considerable number of people over that period of months (in particular, threats to kill or injure), to his desire to obtain and then retain a firearm and ammunition in the day or so before the killing, to a threat to kill the victim made on the day of the killing, and to arguments between the respondent and Ms Doyle in the course of that day. This recitation occupied six of the eleven pages of the summary.

8 Much might have been made of aspects of that material had the respondent gone to trial on a charge of murder. To me, it seems inescapable that the material was marshalled for that purpose. Indeed, the material was set out in the summary under the heading 'Relationship evidence and events preceding the murder'.

9 But when the Crown accepted the respondent's plea of guilty to manslaughter on the factual basis which I have described, any purpose which that material served was largely removed. Thus, for example, the Crown could no longer ask the jury to infer, from things done and said by the respondent particularly in the several days leading up to the killing, that the shot was fired with murderous intent.

10 Respondent's counsel did not contest, before the judge, that there was material in the depositions to the effect stated in the summary. But he did, at the outset, challenge the relevance of a good deal of that material.

11 This challenge led to an exchange between counsel and the judge, in which the latter suggested that the evidence could be used to render the respondent's 'modest' criminal record less mitigatory than it otherwise would have been because the respondent was shown to be a man of some violence; and that the material might also be used to show that the respondent was, in a general sense, 'out of control'. Albeit that he was not charged with murder, although the killing was neither intentional nor done with intent to cause really serious injury, yet this was 'an incredibly dangerous and stupid thing to do and a young girl is now dead'.

12 The response of respondent's counsel was to say 'I accept that if that's the way your Honour intends to use it, then there is some relevance there'.

13 Notwithstanding counsel's assent to the possible uses propounded by his Honour, it can be safely concluded that those possible uses were remote from the uses for which the material had been originally designed.

14 In the event, notwithstanding the plea of guilty on the agreed factual basis, there was lurking in the material before the judge a statement of facts which had been designed to support the original charge of murder. This meant that his Honour had to be acutely aware of the limited uses to which the material might be put, and not permit it to colour his consideration of sentence so as to lead to him sentencing the respondent as if for murder.

15 His Honour was very evidently alert to the problem. Whilst in his sentencing remarks he summarised most of the material to which I have been referring, he carefully deployed it only to limit the weight which he would otherwise have given the mitigatory circumstance that the respondent was a relatively young man with a modest criminal history.

16 It was necessary for a reader of his Honour's sentencing remarks - most importantly, for present purposes, the Director of Public Prosecutions - to apprehend the limited relevance of the material and the use which could be permissibly made of it when determining whether to institute an appeal against sentence.

17 In his notice of appeal, contending that the sentence passed was manifestly inadequate, the Director identified eight circumstances to which the judge had allegedly failed to attach any or sufficient importance. The sixth of them was that the judge -**

failed to have sufficient or any regard to the fact that the offence was committed against a background of domestic violence directed by a male towards a female sexual partner.

**18 So far as the factual basis for the matter raised by this particular emerged at all in the material placed before the judge, it was to be found as part of the recitation of circumstances in the summary which might have supported a charge of murder. There, what was described was a volatile relationship characterised by arguments and reconciliations, by controlling and jealous behaviour on the part of the respondent, and by brief and disputed accounts whether the respondent had ever inflicted physical violence on Ms Doyle.

19 On the plea, Senior Counsel for the Crown did not mention the term 'domestic violence' at all. He did not submit that the judge should have regard to the offence having been committed 'against a background of domestic violence'. And yet, by the notice of appeal, and in both written and oral submissions, the Director emphasised the alleged error of the judge either failing to consider or giving inadequate consideration to that alleged circumstance. Thus, for instance, counsel orally submitted that the fact that the respondent had pointed the gun in the direction of Ms Doyle and not at someone else in the room showed that domestic violence was relevant. Counsel referred also to the 'intricate nature' of domestic violence, a matter which was not raised below and concerning which no evidence at all was placed before his Honour. Again, counsel characterised the respondent's conduct towards Ms Doyle earlier on the day of the killing as violence.

20 It was not only with respect to what came to be characterised as 'domestic violence' that the Director referred to the body of material which I have earlier described. For example, counsel submitted that earlier violent conduct, mostly directed to persons other than the victim, made the dangerousness of what the respondent did in pointing the gun at Ms Doyle and then pulling the trigger more profound. That submission was made despite earlier described threats of violence having been intended, whereas the facts upon which the judge was called upon to sentence the respondent involved no deliberate act of violence at all.

21 It appears to me, in the event, that on the appeal the Director sought not only in part to advance a case which was not advanced below, but also to make use of material to advance the appeal which had somehow survived the transition from a charge of murder to acceptance of a plea of manslaughter, and in the latter context was of very diminished relevance. Particularly so far as the appeal had those**

characteristics, it was neither soundly framed nor soundly pursued.

**22 On 17 March 2014 the respondent, Mehmet Torun, pleaded guilty to the offence of manslaughter. After a plea hearing on 17 March and 2 April 2014 he was sentenced on 4 April 2014 to a term of imprisonment of 8 years with a non-parole period of 5 years.[1] The judge indicated that but for the plea of guilty he would have been sentenced to a term of imprisonment of 11 years with a non-parole period of 8 years and 6 months.

23 The Director of Public Prosecutions has appealed the sentence. The ground of appeal is that the sentence imposed is manifestly inadequate.

24 The offence occurred on 17 April 2013. Mr Torun killed his girlfriend, Kara Doyle. They had been in a relationship for about six months, since meeting the previous October in Queensland. They were each 24 years of age. Mr Torun shot her with a 12 gauge sawn-off shotgun.

25 Mr Torun was originally charged with murder. On 7 February 2014 the prosecution agreed to accept a plea of guilty to manslaughter by unlawful and dangerous act.

26 The prosecution case as to the immediate circumstances in which the offence occurred, as set out by his Honour, was as follows:**

(a) First, in the moments before the gun discharged, Mr Torun was waving the gun around and telling a story.

(b) Secondly, immediately before the gun discharged, he said something like, 'And I told you, man, the gun had no bullets in it'.

(c) Thirdly, at that moment, Mr Torun, whilst standing, held the gun with

both hands and pointed it at Ms Doyle at very close range.

(d) Fourthly, Mr Torun then pulled the trigger deliberately, which caused the gun to discharge.

(e) Fifthly, the shot discharged into Ms Doyle's groin whilst she was seated on the couch holding a 'crack pipe'.

(f) Sixthly, Mr Torun had loaded the gun earlier. His DNA was found on a cartridge inside the barrel of the gun.

(g) Seventhly, however, the prosecution accepts that, because of Mr Torun's drug-addled state at the time of the shooting, he failed to recall that the gun was loaded. [Senior Counsel for the Crown] advised that that concession was the basis on which the Director was prepared to settle the matter as a charge of manslaughter.[2]

27 The defence contested two aspects of the prosecution's case as to the circumstances of the shooting. The defence submitted that the sentencing judge ought not to conclude that Mr Torun deliberately pointed the gun at Ms Doyle and ought not to conclude that he deliberately pressed the trigger. After carefully considering the material and the submissions made, including submissions at a second plea hearing convened by his Honour to address this specific issue, the sentencing judge found beyond reasonable doubt that the immediate circumstances of the offence were as follows:

Accordingly, I am satisfied beyond reasonable doubt, and will sentence on the basis, of the following facts: (1) In the moments before the gun discharged, Mr Torun was waving the gun around and telling a story. (2) Immediately before the gun discharged, he said something like, 'And I told you, man, the gun had no bullets in it'. (3) At that moment, Mr Torun, whilst standing, held the gun with both hands and pointed it at Ms Doyle at very close range. (4) Mr Torun then pulled the trigger deliberately, which caused the gun to discharge. (5) The shot discharged into Ms Doyle's groin whilst she was seated on the couch holding a 'crack pipe'. (6) Mr Torun had loaded the gun earlier.

I also accept the Director's concession that, because of Mr Torun's drug-addled state leading up to the shooting, he failed to recall that it was loaded. Absent that concession, it would be difficult to say that this was anything but a murder. But the concession is open on the evidence and I shall act on it.[3]

Other relevant factual matters/the offender's personal background

**28 Mr Torun was born on 5 August 1988. As indicated, he was 24 years' old at the time of the offence. He was 25 at the time of sentence and he is now 26. According to a psychological report tendered on his behalf at the plea hearing, he grew up in a settled family situation in regional Victoria. He had no exposure as a child to domestic violence or substance abuse. He apparently had a happy childhood. He comes from a good family. The account of his own history which he gave to the psychologist was that he suffered from depression in high school and that he began using illicit drugs at 14-15 years of age. He left school at around 16 and began work with an electrical contractor, initially whilst undertaking a pre-apprenticeship course and then as a labourer. According to the psychological report, he has a history of driving offences beginning in 2007. These early offences do not form part of the criminal record which was before the sentencing judge.

29 On 22 November 2010 Mr Torun was convicted and sentenced at the Shepparton Magistrates' Court to one month's imprisonment, which was wholly suspended, for an offence of driving whilst disqualified, and was also convicted of using an unregistered motor vehicle on the highway. The apparent severity of that sentence, which was commented on by the sentencing judge,[4] is, we infer, a consequence of the fact that he had a number of prior driving convictions, being those referred to in the psychological report but not in the criminal record before the judge.

30 On 29 May 2012 Mr Torun was again before the Shepparton Magistrates' Court. He was charged with dishonestly receiving stolen goods, possession by a non-prohibited person of a category A unlicensed longarm (a .22 calibre rifle) and ammunition without licences or a permit, possession of a prohibited weapon (a slingshot) and possession of anabolic steroids. He was fined without conviction, other than on the drugs possession charge where he was convicted and discharged.

31 On 3 December 2012 he again appeared at the Shepparton Magistrates' Court charged this time with careless driving, two counts of failing a drug test within three hours of driving, possession of a controlled weapon without excuse (a hunting knife), possession of a drug of dependence (Xanax), and using amphetamines. Amongst other non-custodial dispositions, he was placed on a community correction order for a period of six months. One condition of that order was that he undergo assessment and treatment for drug abuse. The offence which is the subject of this proceeding was committed whilst that community correction order was on foot.

32 In October 2012 Mr Torun was in Queensland working. He met Ms Doyle who was there on a holiday. They commenced a relationship. Mr Torun returned to Victoria. He stayed with his parents in regional Victoria during the week and stayed at a flat that Ms Doyle shared with her sister on the weekends.

33 Both Ms Doyle and Mr Torun were using illegal drugs. Ms Doyle at that time was employed as a bookkeeper at an accountancy firm. Mr Torun began exhibiting abusive and threatening behaviour from time to time whilst under the influence of drugs from early on in their relationship. Because of his presence, Ms Doyle's sister moved out of the shared flat. In early January 2013 Mr Torun moved in.

34 In December 2012/January 2013 Mr Torun committed further offences for which he was eventually dealt with in the Shepparton Magistrates' Court on 2 September 2013. By then he was on remand after being charged with Ms Doyle's murder. The offences were driving whilst disqualified, exceeding the speed limit, driving an unregistered vehicle, use of amphetamine, two counts of possession of a drug of dependence, possession of methylamphetamine, careless driving and two counts of failing a drug test within three hours of driving. He was also found to have contravened the community correction order. As indicated, by then he was in custody. He was fined and his licence was cancelled.

35 Mr Torun was easily angered when drug affected and exercised a significant degree of control over Ms Doyle. By early 2013 Mr Torun's drug use was a significant problem. Drug use had also become a significant problem for Ms Doyle. In February 2013 she resigned her position at the accountancy firm. Her changed work ethic and lack of attendance had caused her employer to contact her stepfather.

36 The life Ms Doyle and Mr Torun lived between that time and the time of the offence was one characterised by drug abuse, particularly the drug known as 'ice', and violent arguing. Mr Torun made threats directed at Ms Doyle and others. On one occasion Ms Doyle left and spent the night in a hotel. On a number of occasions she sought help from friends to extract her from the situation in which she was living.

37 In March or April 2013 Mr Torun began making enquiries about obtaining a firearm.

38 On 16 April 2013 an associate of Mr Torun named Dylan Corish moved into the flat. He had with him a 12 gauge sawn-off shotgun. Mr Torun took possession of that gun and of some ammunition that Mr Corish had hidden in his car. Over that day and the next Mr Torun threatened people with that gun. Mr Corish was so concerned about Mr Torun's behaviour that he twice hid the gun and once attempted to disable it. In addition to threatening various people with the gun, he argued violently with Ms Doyle, smashed plates against his head, and punched a hole in the wall with his fist. Mr Corish tried to defuse the situation at one stage by taking Ms Doyle for a drive. Ms Doyle made various requests to friends to be picked up and at one point left the flat with two backpacks and a pillow. She was waiting at a bus stop nearby when she was persuaded to return by Mr Torun.

39 It was in that context that the shooting, the circumstances of which we have previously set out, occurred.

40 After the shooting Mr Torun and Mr Corish attempted to assist Ms Doyle and did their best to get her to the hospital. In the course of trying to get her to a hospital they went to a service station next to a police station and spoke to police. Mr Torun lied about the circumstances in which the shooting had occurred. His lies were directed towards persuading the police he was not responsible for the shooting.**

**41 The sentencing judge referred to some of the factual matters to which we have referred. He set the facts out in greater detail than we have.[5] On the appeal it was accepted that his recitation of the facts was accurate. We will not repeat that recitation.

42 The sentencing judge then referred to victim impact statements which had been filed by Ms Doyle's mother and her stepfather.[6] As the sentencing judge observed, they are moving documents. He indicated that he took their contents into account.

43 The sentencing judge addressed the nature and gravity of the offence.[7] He said there had been an assault constituted by pointing the gun at Ms Doyle and then pulling the trigger, an act which was both unlawful and dangerous. He said that Mr Torun's behaviour did not involve any intended or foreseen violence or injury to Ms Doyle, but that his behaviour was extremely careless, very dangerous and profoundly stupid. He observed that Mr Torun's culpability was very high. The sentencing judge said he assessed the offence as 'falling between the mid-range and serious range of manslaughter'.[8]

44 The sentencing judge referred to a number of mitigating factors.[9]

45 Mr Torun had pleaded guilty at the earliest practical opportunity.

46 The sentencing judge was satisfied that Mr Torun was genuinely remorseful and he gave detailed reasons as to why.

47 In relation to Mr Torun's prior convictions, the sentencing judge made the observation that they were of 'very modest proportions'. He went on to observe that Mr Torun's behaviour in the period leading up to the offence, which he described as 'volatile, threatening and erratic', had to be taken into account alongside his otherwise 'modest' criminal history. The judge observed that the illegal drugs he was taking had contributed to this behaviour. The judge considered that this behaviour limited the weight that might otherwise be given to the fact that he is a relatively young person with only a very modest criminal history. In relation to the role of illegal drugs in the offending, the sentencing judge observed that whilst in custody Mr Torun has been tested for illegal drugs and all of those tests have been negative.

48 The judge referred to Mr Torun's relative youth, to references tendered on his behalf, and to the support he had from his family.

49 The sentencing judge concluded that Mr Torun had good prospects of rehabilitation. He gave reasons why he had reached that conclusion. In summary they were his plea of guilty, his remorse, his modest criminal history, his good family background and continuing family support, his relative youth, the fact that he had demonstrated in the past the capacity to work, the fact that work will be available to him when he is released, the character references tendered on his behalf, and his willingness to accept drug related treatment whilst in custody.

50 The judge observed that general deterrence, denunciation and just punishment had a significant role to play in this case.[10] He said that specific deterrence needed to be given some weight but that he considered it very unlikely that Mr Torun would reoffend in this way.[11]

51 The judge referred to current sentencing practices without descending to specific cases.[12]**

**52 This is not a case where it is suggested that the sentencing judge made some specific error. It is not suggested that he misapprehended some factual matter, that he had regard to some irrelevant consideration, or that he failed to have regard to a relevant consideration. In substance, what is put is that, given all of the relevant matters, the sentence imposed is manifestly inadequate.

53 The matters particularly emphasised in the Director's written submissions were: the seriousness of the offending behaviour; what is described as a background of 'domestic violence'; and the impact upon the victims. It was submitted the judge had failed to temper his conclusions as to remorse and rehabilitation by virtue of matters that ought to have given rise to greater concern than they did, and, in particular: Mr Torun's lies to the police; his prior convictions, particularly those on 29 May 2012; the fact that the offence was committed whilst on a community correction order; and the fact that he had been abusing drugs in contravention of that order for some time prior to the commission of the offence.

54 In oral submissions it was submitted by counsel on behalf of the Director that what was described as a 'backdrop of domestic violence' and threats had not been given sufficient weight by the sentencing judge in his characterisation of the offence as falling between the mid-range and the serious range. It was submitted that the sentencing judge ought to have treated the offence as being within the serious range. It was also submitted orally that the judge had been correct to temper the significance of Mr Torun's modest criminal history by reference to his threatening and erratic behaviour leading up to the offence but that the sentence then imposed had not adequately reflected that conclusion. Counsel conceded that the prior offending history was modest, but submitted that the history was still relevant as it involved drug use and possession of a firearm.

55 On behalf of the respondent it was submitted, in substance, that the sentencing judge had taken into account all of the relevant matters and that there was no basis for appellate intervention. Reliance was placed upon the need to demonstrate that the sentence was outside the range of sentences open to the sentencing judge and upon this Court's residual discretion to dismiss a Crown appeal even if the Court is satisfied that a different sentence ought to have been passed.[13]**

56 The relevant legal principles on a Director's appeal were set out by this Court recently in DPP v Chatterton.[14] This is not a case where specific error is said to have been made. What is contended here is that the outcome is so inadequate as to require appellate intervention. In such a case the inadequacy in the sentence must be clear and egregious.

**57 The offence of manslaughter encompasses a very wide range of offending behaviour. Many cases were referred to in submissions. The range of sentences is also very wide. We have particularly reviewed a number of sentences involving the discharge of firearms where there was a manslaughter conviction.[15] Two of those cases are of some assistance. They are Phillips[16] and Stratton.[17]

58 The judgments of this Court in Phillips and Stratton emphasise that the issue of whether the discharge of the firearm was intentional is significant. Comparison of specific fact situations is not helpful, but, as was noted by this Court in Stratton, there does not seem to be any case where a sentence over 10 years was imposed in a circumstance where it was found that there had been no intention to harm the victim.[18] The sentence in Phillips, which was increased on appeal, and the sentence in Stratton, which was reduced on appeal (with Neave JA dissenting), were both 9 years' imprisonment with a non-parole period of 7 years. It seems to us that the relevant offending conduct in each of those cases was more serious than the conduct here. In Phillips the offender intentionally pointed and fired the firearm at the victim, with whom he had been fighting earlier the same night, at a range of approximately 30 metres. The jury verdict was only consistent with the conclusion that he had not intended to kill or cause really serious injury. In Stratton the offender was in the course of committing an aggravated burglary, armed with the firearm, when it was accidentally discharged, killing the owner of a cannabis crop which the offender was in the process of stealing. In each case the offender fled the scene without endeavouring to render any assistance.

59 Like comparable cases, there are limitations on the use which can be made of statistics. It is nevertheless noteworthy that the sentence imposed here is the median both in terms of the sentence of imprisonment and the non-parole period as revealed by the current statistics for manslaughter.[19]**

**60 Mr Torun's extraordinarily irresponsible behaviour has led to a tragedy, for Ms Doyle and for her family. There can be no doubt that drug abuse, and particularly abuse of the drug 'ice', played a very significant role in this tragic killing. Mr Torun's drug abuse resulted in a pattern of increasingly erratic, irresponsible, and criminal behaviour culminating in the death of his girlfriend, a person who he maintains he loved. Ms Doyle's drug abuse seems to have been a significant factor in her inability to escape from Mr Torun's increasingly erratic, threatening and dangerous behaviour.

61 At times the prosecution submissions on the appeal appeared to traverse the factual basis of the manslaughter plea. The prior conduct of Mr Torun towards Ms Doyle may have been centrally relevant to the case when the charge was murder, but once the manslaughter plea was accepted its relevance was much more limited. The sentencing judge specifically found that Mr Torun's behaviour did not involve any intended or foreseen violence or injury to Ms Doyle. That finding is not challenged on appeal. It was a conclusion which inevitably followed from the Director's acceptance of the manslaughter plea and the Director's concession as to Mr Torun's state of mind, in the circumstances of this case.

62 Given that this case must be approached on the basis that there was no intention to harm the victim, because of the plea agreement which was made, the sentence imposed is not outside the range of sentencing dispositions which was open to the sentencing judge. There is no clear and egregious inadequacy in this sentence, given the circumstances.

[1] R v Torun [2014] VSC 146 ('Reasons').

[13] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658.

[14] [2014] VSCA 1 [80]-[95].

[15] DPP v Phillips [2009] VSCA 68 ('Phillips'); R v Stratton [2008] VSCA 130; (2008) 20 VR 539 ('Stratton'); DPP v Sypott [2004] VSCA 9; R v Pashalay [1998] VSCA 18; R v Cox (Unreported, Supreme Court of Victoria, Brooking and Hayne JJA and Ashley AJA, 24 June 1997); R v Reynolds (Unreported, Supreme Court of Victoria, Winneke P, Brooking JA and Ashley AJA, 28 May 1997). Whilst it was not an unlawful and dangerous act manslaughter we also had regard to the sentence in R v Nguyen [2010] VSC 528.

[19] Sentencing Advisory Council, Sentencing Snapshot No 141 (May 2013).

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