R v Acikoglu [2002] VSCA 104

5. Pursuant to leave granted by this Court in February of this year, the appellant has appealed against the sentence imposed on a variety of grounds which assert error on behalf of the sentencing judge in the exercise of his discretion. Before turning to those grounds it is desirable to recite - briefly - the circumstances which surrounded the murder.

8. The appellant and the deceased are each of Turkish origin. They had apparently known each other since the early 1990s when the appellant came to this country with his wife to live. His wife's parents apparently lived and worked in the district of Shepparton and that is where the appellant and his wife had first settled. It seems that the appellant was unhappy in that arena and took himself to Melbourne where, in his view, there were better opportunities and facilities for making an income. It was during this absence from his wife that a relationship was formed between him and the deceased, who, although separated from her husband, was still married and had four young children. Despite the emergence of the relationship, it would seem that the appellant remained attached to his wife, who ultimately came from Shepparton to join him in Melbourne. By the time of the murder there were two young children of the appellant's union with his wife. It would seem, however, that notwithstanding that reunion, the appellant remained attached to the deceased, with whom he continued to maintain a relationship notwithstanding her (the deceased's) husband's opposition to it. The consequence of the "double lives" and the duplicity which it involved ultimately proved disastrous. It would seem that the deceased asserted her commitment to the appellant but, for a variety of understandable reasons, was not prepared to terminate her own marriage or to follow through with the arrangements which the appellant clearly had in mind for them. This led to what might be described as the "fatal blow-up" between them, many of the circumstances of which are shrouded in mystery, but in the course of which the appellant walked from the deceased's house to his car; retrieved from it a loaded handgun; returned to the house and - in front of the four-year-old child - shot the deceased once in the chest and - following a plea by her to him which is translated as, "Don't do it, my heart, don't do it" - shot her again through the head. Thereafter the appellant left the deceased in the house, no doubt with the distraught children, returned to his car and drove towards Shepparton, disposing of the gun on the way. That gun he appears to have had for some time, although precisely for how long the evidence does not clearly disclose. He drove to Shepparton, where his wife was then living. He told the police that he wished to see his own children before what was inevitably going to be his arrest.

11. During the course of the plea before his Honour, it was submitted by the appellant's counsel (who was not the counsel who appeared in this Court) that the crime was not a "cold-blooded execution" but one which "grew out of an immature and inadequate response to a relationship which was beset with difficulties". It was contended that the appellant, having humiliated himself - at the deceased's instance - before the Turkish community, was incapable of tolerating the pressure and was accordingly - to use my own term - "pushed over the edge" into committing not a cold-blooded execution but a crime of desperate passion, following which he became deeply remorseful - as evidenced by his quick confession to the police and his subsequent (although somewhat tardy) plea of guilty before the judge.

14. His Honour, during the course of his sentencing remarks, characterised his view of the crime in this way:

"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 handgun from the motor vehicle parked in the street which necessitated your 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."

His Honour, however, had accepted that the appellant's long-term prospects of rehabilitation were good and that specific deterrence and protection of the community generally were not purposes of punishment apt in the circumstances of the case. Nevertheless, in fixing the penalty which he did, his Honour regarded general deterrence and denunciation as being of relevance to that task.

19. Pursuant to leave granted by the Registrar, the appellant has filed a notice in which he asserts seven grounds of appeal, the last of which is that the judge erred in imposing a sentence which is "manifestly excessive in all the circumstances". There are six other grounds of appeal which are all pursued by Mr Boyce in this Court save the last. They are, in abbreviated form, as follows:

* first, that the judge erred in failing to place sufficient weight on the appellant's remorse; and, indeed, in failing to resolve what degree of remorse the appellant had in fact demonstrated;

* secondly, that the judge was in error in failing to properly assess the level of premeditation which accompanied the crime and in determining when it was that the appellant formed the intention to kill;

* thirdly, that the judge failed to sufficiently take into account the appellant's plea of guilty.

(Although it was a ground of appeal taken that the judge had suggested that it was an aggravating factor of the murder in the present case that the offence could be characterised as a "domestic killing", that ground was not pursued in the long run by counsel.)

26. In support of these grounds Mr Boyce - who appeared in this Court for the appellant - submitted that the judge ought to have formed, in the presence of contrary submissions by counsel for the Crown and counsel for the appellant before his Honour, a view as to when it was that the appellant had formed the intention to kill. Mr Boyce submitted that, whenever an issue is raised as to relevant sentencing issues, there is an obligation upon the sentencing judge to resolve those issues one way or the other so that the accused person and the public may know the basis upon which the sentence has been imposed. Likewise Mr Boyce said that the judge in this case was obliged to determine the issue of "remorse" beyond the point at which he did. Again, it was submitted, the judge was obliged to determine that issue to the point where the sentence imposed could be seen to be properly based. However, as Mr Boyce pointed out to this Court, the "real point" in the case, as he suggested, was that it was clear that insufficient weight had been given to the appellant's plea of guilty, which, in murder cases, must be regarded as a significant factor in mitigation of penalty. In this regard counsel placed emphasis on the decision of this Court in the case of R. v. Donnelly[1]. To the contrary of Mr Boyce's submission, Ms Judd, who appeared for the respondent, submitted that none of the grounds had been made out; that there was nothing about his Honour's sentencing remarks which suggested that he had inadequately resolved or failed to properly take into account all the factors which properly bore upon the exercise of his sentencing discretion.

29. Notwithstanding the capable submissions made by Mr Boyce, there is, in my view, nothing in any of the grounds of appeal to suggest that the judge erred in imposing sentence. This was not a case where the material before his Honour easily enabled him to discern the degree of remorse which the appellant demonstrated, but his Honour was prepared to accept in the appellant's favour that the appellant was "sorry for what he did" and that he should proceed on the basis of the appellant's contrition, as expressed both in his plea of guilty and in his explanation given to the forensic psychologist, Mr Joblin, who was called on the plea and whose evidence his Honour had before him. In concluding that the appellant had demonstrated to his Honour's satisfaction what his Honour described as "a measure of remorse", and also in concluding that the appellant was entitled to "some mitigation" of penalty for that remorse, I can see no error in his Honour's sentencing discretion, having regard to the limited - and, in some respects, conflicting - material from which his Honour had to work. Nor, in my view, is there anything in the proposition that the sentencing judge was in error in determining what was described as the "level of premeditation" attending this crime or in failing to determine the point at which the appellant had formed an intention to kill. The very nature of these grounds appears to require a degree of certitude on the part of the sentencing judge which - in many cases of which this was one - simply cannot be achieved. That the appellant formed the relevant intention cannot be doubted. Just when he did so was, in this case, impossible to determine; although his Honour's characterisation of the crime to which I have already referred was, in my opinion, quite appropriate in the circumstances.

32. 9 In the end, I can find no error in the sentencing process engaged in by his Honour; nor in the sentence which his Honour passed. It is put that the sentence is manifestly excessive, and that the errors in the process to which counsel has referred contributed to the excess. It is put that the level of sentence reflects a failure to have proper regard to the plea of guilty. Whilst it is true that a plea of guilty to murder is clearly a significant factor in mitigation which an accused person is entitled to expect will be reflected in the penalty imposed, it is not apparent to me that there is anything in the sentence which his Honour has imposed which indicates that it is manifestly excessive in all the circumstances, or that it demonstrates that a lack of weight or insufficient weight has been attributed to the plea of guilty. Counsel contends that the penalty imposed was the sort of penalty which would have been appropriate to impose if, having faced trial, the accused had been convicted and been sentenced in those circumstances. These submissions seem to me to lose sight of the significance which the law attributes, or ought to attribute, to the sanctity of life. However one describes this killing, it was the deliberate taking of the life of a young woman who had much to live for; and carried out by a man who believed that he had been inappropriately humiliated and slighted. Those who take the law into their own hands and commit the ultimate crime of murder must expect to receive punishment commensurate with that crime. I agree with counsel for the respondent that there is nothing in the penalty imposed which suggests that it was beyond the range available to the judge in the circumstances with which he was confronted. Indeed, there was much about this crime which made it a bad example of the crime of murder - particularly the fact that the deceased was executed in full view of her four-year-old son. Even if I was satisfied that there was some error, which I am not, in his Honour's sentencing discretion, I would not be satisfied that any sentence other than the one imposed ought to have been imposed.

47. The formal order of the Court is that the appeal against sentence is dismissed.

[1] [1998] 1 V.R. 645.