R v Acikoglu [2001] VSC 163

Supreme Court of Victoria|2001-05-24|Before: Bongiorno J

Criminal Law Sentencing - Plea of guilty - Time at which plea entered - Sentencing Act 1991 Section 5 (2)(e).

Mustafa Acikoglu you have pleaded guilty to the charge that at Reservoir on 31 August 1999 you murdered Adalet Demir. It is now my function to sentence you according to law.

You were born in Turkey on 18 December 1959 and are accordingly now 41 years of age. You migrated to Australia in 1992 with your wife. Your parents remain in Turkey and you have some siblings there and some here.

According to the history which you gave to Mr Ian Joblin, the forensic psychologist called on your behalf, you had 11 years of schooling in Turkey following which you undertook compulsory military service and then established a retail clothing shop. Upon arrival in Australia you engaged in various forms of manual work, both rural and industrial, until your arrest in respect of the offence with which I am now concerned in September 1999.

Although you had known your wife as a child in the area of Turkey where you grew up you met her again in 1990 and were married in the same year.

Your relationship with your wife appeared to deteriorate relatively soon after your arrival in Australia, perhaps because of your disenchantment with working as a fruit picker in the Shepparton area and the lack of income it generated. There were separations, during which time she stayed in Shepparton and you searched for work in Melbourne. It was whilst you were in Melbourne and your wife was in Shepparton that you began to see the deceased regularly, having first made her acquaintance very shortly after you came to Australia. Mr Joblin considered that the development of your relationship with the deceased was directly related to problems you had in your relationship with your wife. I have no reason not to accept this opinion.

As you got to know her you became aware that the deceased had had considerable difficulties with her husband and would at times take the children and go to a refuge to get away from him. You told Mr Joblin that you and the deceased made plans to live together even before she left her husband and that those plans involved borrowing money and going to live with her and her children as far away from Melbourne as possible. It appears you began to execute this plan at least to the extent of seeking a bank personal loan. You were unsuccessful in this attempt as was the deceased when she made a similar application.

In the course of your record of interview, conducted by members of the Homicide Squad investigating the deceased's death, you told the police officers that you lived with the deceased at Miranda Road, Reservoir for a period of some months which period ended about one month before her death. You told them you moved out of the house to give the impression that you had left the deceased as you were concerned at her husband's attitude to your relationship with her. The matter was further complicated by your working for the same employer as the deceased's husband.

Notwithstanding your ceasing to cohabit with the deceased as I have described you continued to visit her at the Miranda Road house almost daily. You picked up her children from school and did her shopping. You exchanged frequent telephone calls with her.

Despite the frequency of your visits and the apparent intimacy of your relationship with the deceased that relationship was less than harmonious. You suspected her of infidelity and believed, rightly or wrongly, that she was seeking to disgrace or humiliate you in ways which you found particularly offensive; a response which may be related, at least in part, to your cultural background. Further, the deceased apparently smoked marijuana on a regular basis during your relationship with her of which habit you claim to disapprove. In this regard I note that there is a considerable body of evidence which suggests that you in fact supplied her with the marijuana she smoked. I know that you deny this but it is unnecessary for me to investigate this matter further: it has no bearing on the task of sentencing which I must undertake.

According to your history as reported by Mr Joblin, on the day before the shooting your relationship with the deceased suddenly deteriorated. She was very upset, possibly because of some difficulty she was having with her husband, causing you to question her as to whether she regretted leaving him. You left her home on that day, but told Mr Joblin that some hours later she contacted you indicating that she was simply testing your resolve in the relationship.

On the day of the shooting, after working night shift, you telephoned the deceased to arrange the picking up of her children. As there was no reply you went to her home. You gave her some money and cigarettes and the two of you began talking about her husband. An argument followed; which argument would only end when she was dead.

You told the police that during the argument you had with the deceased you told her that if her husband really wanted her back that she should go back to him and that you would be happy if she did so. However, you claimed the deceased continued to argue with you and attempted to humiliate and belittle you to the point where you left the house and went to the motor vehicle you were driving which was parked in the street and retrieved a hand gun which was in the glove box. You claim to have carried this gun as a means of protection against the deceased's husband of whom you were afraid.

You told the police that you returned to the house carrying the gun, at which point the deceased began to calm down but then "changed her mind". You accused her of making you ". . . honourless, a man without honour - because of her actions and behaviour . . . "At about this point you fired the first shot which, according to the pathologist, was probably into the deceased's upper body. After she was shot the deceased pleaded with you in words which you repeated to the police and which were translated from Turkish as: -

After some time, perhaps up to 30 seconds, you shot her a second time; this time in the head at very close range.

You told the police that you subsequently disposed of the gun, its magazine and the remaining ammunition by throwing them out of your car window as you drove along a road. Some hours later you were arrested in a Shepparton street as you approached your wife's home for the purpose, as you said, of seeing your children before the inevitable happened and you were apprehended.

Mr Joblin assessed you as being of reasonable intelligence and able to give a coherent account of this dreadful episode. He noted that you described neither your wife nor the deceased in negative terms and that you claimed to have loved the deceased right up until the time that you shot her.

Insofar as an event such as this can be explained in human terms at all, Mr Joblin suggested that its origins might be found in the psychological conflict generated by your having left your wife for a relationship with a woman which was itself not delivering the comfort which you sought and expected. The strength of your emotional and psychological investment in your relationship with the deceased meant that even a relatively minor event caused you to react in a homicidal way. Although somewhat irrational, that response was not in any legal sense even partly excusable as it might have been had you been genuinely provoked as that term is understood in the criminal law. Mr Joblin's professional assessment may provide some insight into your conduct on 31 August 1999. It does nothing to excuse it. Whilst your moral culpability for what you did must remain a matter between you and your conscience your legal culpability is undoubted and absolute.

There was some debate upon the hearing of your plea as to the vexed question of remorse. Mr Joblin notes that you are remorseful but seems to place that remorse in the context of your concern about your children and the deceased's children. Your counsel urges me to accept that you are remorseful, although Mr Horgan SC for the Crown does not concede this and submits that there is no material from which I should draw the inference that you are remorseful in the sense in which that term is usually used.

It seems to me to be sufficient for present purposes to accept that you are sorry for what you did even if, as Mr Horgan SC submits, such sorrow stems from your concern for the children to whom I have referred rather than a conscious articulated appreciation that you have taken a human life. I shall proceed on the basis of your contrition as expressed by your plea of guilty and your explanation to Mr Joblin and assume, for the purposes of fixing your sentence, that you have demonstrated a measure of remorse entitling you to some mitigation.

So far as your plea of guilty is concerned s 5(2)(e) Sentencing Act 1991 requires me to take it into account as well as taking into account the time at which it was made. Your counsel accepts that your plea of guilty was late but proffers reasons to temper that lateness and distinguish your case from that of ". . . the cynic who was just trying his luck out." You are entitled to the ameliorating benefit which flows from even a late plea of guilty. The plea itself has obviated the need for a trial and has saved the relatives of the deceased much distress. In this case it also bespeaks a degree of remorse as I have already noted.

You have no prior convictions and there are apparently no aspects of your past life which would detract from an otherwise good character manifested in a relatively steady employment record and a demonstrated care for your family, at least whilst it was intact.

For sentencing purposes I characterise this murder as one carried out with a degree of anger and with only such premeditation as is necessarily implied in your deliberate retrieval of your hand gun from the motor vehicle parked in the street which necessitated you leaving the scene of your argument with the deceased, going to the car and returning. It is thus distinguished, if only to a minor degree, from a cold blooded execution. After obtaining the gun your actions in shooting the deceased twice in the presence of her four year old son and in circumstances where, after the first shot, she pleaded for her life, are horrendous indeed.

The murder was committed with a weapon, your possession of which was itself illegal. You had no licence to possess a hand gun and it can be safely assumed that no circumstances existed in your case which would have entitled you to such a licence. Your counsel urged me to accept a view of the facts which meant that you had not formed an intention to kill the deceased at the time you retrieved the gun from your motor vehicle. I find that difficult to accept having regard to what you subsequently did, but if it was true then had you not had ready access to the hand gun it follows that the deceased may have been still alive today.

Your case is yet another illustration of the dangers inherent in firearms of any type, but perhaps particularly hand guns, being in circulation in the community. The opportunistic use of such weapons by people such as yourself is the cause of otherwise preventable deaths. If such guns did not exist murders would be undoubtedly fewer.

The effect of this crime upon the four children of the deceased will be far reaching. They will carry the memory of the way in which their mother died with them for the rest of their lives. In the case of the little boy who actually saw his mother murdered the consequences will almost certainly be even more drastic. Further, victim impact statements which I have read attest to the effects of the crime on other relatives of the deceased.

Your counsel, Mr Morrissey, submitted that your chances of rehabilitation in the long term are extremely good. I accept that submission. Experience shows that murderers such as you are seldom recidivists. Accordingly, questions of rehabilitation and, for that matter, specific deterrence do not loom large in the fixing of an appropriate sentence in your case. Nor does the necessity to protect the community. I consider it unlikely that you would be a danger to anyone other than someone with whom you were emotionally involved. The sentence I am about to impose will prevent your forming any potentially dangerous relationships for a long time into the future.

On the other hand general deterrence, the necessity to manifest the denunciation by the Court of the type of conduct in which you engaged and the necessity to punish you in respect of this offence are factors which inevitably dictate a long period of incarceration as being the only appropriate sentence. Other men and women who are minded to attempt to solve their relationship problems in the way you did must be made aware of the dreadful consequences of doing so.

The maximum penalty prescribed by law for murder is life imprisonment. That this is so reflects the law's concern for the sanctity of human life. However, in your case, having regard to the matters which I have discussed and the general principles of sentencing a somewhat lesser sentence can, I believe, be lawfully imposed. It will see you released when you are still of an age when your children may benefit from you being their father if you are ever able to form any meaningful relationship with them.

It is the sentence of the Court that you be imprisoned for 18 years and it is further ordered that you serve a minimum of 14 years before being eligible for parole. I declare the period of 632 days inclusive of today as being the period you have already served under this sentence and I direct that this declaration be entered in the records of the Court.

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Judgment (31 paragraphs)

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