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[2006] VSC 264
General information, not legal advice.
Supreme Court of Victoria
2006-07-21
HABERSBERGER J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Murder - Intentionally causing serious injury - Stabbings at nightclub.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 Orhan Akkus, you have been found guilty by a jury of the murder of Mark Russo at Moorabbin on 20 November 2004 and guilty of without lawful excuse intentionally causing serious injury to Carl Russo at the same place and time. Section 3 of the Crimes Act 1958 provides that the maximum penalty for murder is life imprisonment and s.16 of the same Act provides that the maximum penalty for intentionally causing serious injury is 20 years' imprisonment.
2 The senseless stabbings of Mark Russo and his cousin Carl Russo occurred at the Wax nightclub in the early hours of 20 November 2004. What should have been a relaxing and enjoyable social occasion for the young people present at the nightclub was by your actions turned into one of trauma and grief.
3 Mark and Carl Russo were part of a group of friends who went regularly to the Wax nightclub on Friday nights. Mark was there with his girlfriend Cara Hawkhead and her friend Megan Carroll. Carl was there with his brother John Russo, John's then girlfriend Sherrie Miles, Sherrie's sister Julie, and Carl's friend, John Sacco.
4 You arrived at the nightclub after 2.00 o'clock in the morning, having previously attended with your wife and young daughter a family circumcision party at a reception centre in the northern suburbs. After taking your wife and young daughter home to your flat you set off for the nightclub. There you met up with a group of male friends including cousins Raed and Tarek Dimachki.
5 Towards the end of the evening you and Tarek walked through the nightclub and stood near a group which included Mark and Carl Russo. When Carl Russo went to move past you, he bumped you in the shoulder and words were exchanged. Given Carl Russo's aggressive behaviour earlier in the evening towards the inoffensive Joshua Tonta, I accept that probably he acted aggressively towards you. You pushed him, causing him to step back, but he then took a step towards you.
6 As he did so, you pulled out the large carving knife, which you had been carrying hidden underneath your jacket, and stabbed Carl Russo in the stomach with sufficient force to cut the renal artery at the back of his body. Initially, he thought he had been merely punched in the stomach. Mark Russo then ran in between you and Carl in an attempt to break up the scuffle and to calm everyone down. He was then stabbed three times, the third time with such force that the knife almost penetrated through his whole body and remained lodged in his torso as you made your escape. The nightclub security camera footage showed you calmly walking away from the scene.
7 Before leaving the nightclub you removed your distinctive jacket and handed it to Raed Dimachki, asking him to take it outside for you. It was significant that you had kept this jacket on all evening despite the other patrons wearing only light shirts. Once outside the Wax nightclub you met up again with your friends and suggested moving to another nightclub. When that idea was rejected you and two friends went to a local McDonald's store for a meal. As a result of one of them receiving a call on his mobile telephone during that meal, you learned that one of the two people you had stabbed had died.
8 You had consumed some alcohol over the course of the night but were sufficiently sober to change a tyre on your car and to drive a considerable distance to and from the nightclub.
9 Later that day you visited friends and with their assistance booked a flight that evening to Dubai and then on to Turkey. Due to efficient investigative work by the police, your intention to flee became known and although the police were not in time to stop your plane leaving Melbourne, it was diverted to Perth where you were arrested.
10 Mr Grant of counsel, who appeared on your behalf, submitted that I should not sentence you on the above factual basis. He referred to the well established principle that findings of fact made against, or adverse to the interest of, an offender by a sentencing judge must be arrived at beyond reasonable doubt.[1] Mr Grant referred to your evidence that after you pushed Carl Russo you were attacked by him and Mark Russo and at least three other men who pushed you, punched you, kicked you and grabbed you. You said that during the course of this attack one or more of these persons yelled that you were going to be killed and that you saw a knife in the hand of one of your attackers. Subsequently you saw the knife on the floor, you picked it up and held it by your side to avoid anyone being hurt. You said that you then attempted to ward off your attackers and thus probably accidentally stabbed Carl and Mark Russo and that as you attempted to escape Mark Russo lunged at you and impaled himself on the knife.
11 Mr Grant submitted that the jury verdict was consistent with it accepting this evidence but nevertheless being satisfied beyond reasonable doubt that the force used by you in responding to the attack on you was disproportionate to the threat you faced and therefore that it was satisfied that you did not have any lawful justification or excuse, such as self-defence, for the stabbings. Mr Grant further submitted that I could not safely conclude that the jury had accepted the critical parts of the Crown case, in particular that it was you who had brought the knife to the nightclub.
12 I agree, however, with the submission of the Crown prosecutor, Mr Trapnell, that having heard you give your account of what occurred on that night and taking into account all of the other evidence, I could be satisfied beyond reasonable doubt that the jury had accepted that the Crown had excluded all reasonable hypotheses consistent with the proposition that the knife was not taken by you to the nightclub and that it had rejected your account of how the stabbings occurred. I am certainly satisfied beyond reasonable doubt that my summary set out above accurately records what happened on that night.
13 Mr Grant no doubt argued this matter strenuously because he perceived that the factual basis he sought to put forward involved less culpability on your part than the one on which I am proceeding. Whilst this may be correct, it did not seem to me to be relevant that, as Mr Grant put it, if the events had occurred after November 2005 then a verdict of manslaughter by excessive self-defence would have been available to you. As I have said, I am satisfied that even if this had been the law the jury would not have brought in a verdict of manslaughter in respect of the death of Mark Russo.
14 I turn then to your personal circumstances. You are now aged 29, having been born in Australia of Turkish parents on 1 December 1976. When you were six years old your family returned to Turkey with the intention of living there permanently. However, after two years your mother returned to Australia with you, your parents having separated. You did not go to school whilst living in Turkey because of your difficulties with the Turkish language. Your early schooling was in the Brunswick area. After you moved with your mother and her third husband to Huntingdale you attended Huntingdale Technical School. You left school part of the way through year 10, when you were 16 years of age.
15 Despite this unpropitious start, you commenced and successfully completed a four year shop fitting and cabinet-making apprenticeship. It would seem, however, that by then you were involved with drugs. Between May 1996 and September 1999 you appeared in court on eight separate occasions for a range of offences, generally consistent with "a person battling the scourge of drugs", as your counsel put it. Going by your prior convictions it would seem that you had graduated from cannabis to heroin.
16 I was told that following your last group of convictions, your family decided, with your agreement, to send you to Turkey in an attempt to beat your addiction to drugs. Whilst in Turkey you were called up for national service and spent 18 months in the Turkish Army. On 28 April 2001 you married your wife Gamze in Turkey. You returned to Australia with your wife in 2002. It was said that by then you were drug free and this would seem to be supported by your lack of any subsequent convictions. Your daughter, Miray, was born on 16 August 2002. You had been in constant employment since your return to Australia and you and your wife had purchased a flat. The evidence of one of the co-owners of the business where you had worked for about two years prior to these events indicated that you were a good worker in your trade of cabinet making.
17 It was submitted on your behalf that you had a strong family support network as evidenced by those who attended the trial. I note, however, that your responsibilities as a husband and father did not stop you from leaving home to visit the Wax nightclub in the early hours of 20 November 2004 even though, on your own evidence, your wife initially asked you not to go. As previously stated, your employment record since returning from Turkey was good. It was therefore submitted that you had good prospects of rehabilitation, and that this was particularly relevant to the minimum term to be set.
18 Whilst one would like to think that you will have learned your lesson about the need to act within the law, your lack of expression of any remorse does not encourage me to treat your prospects of rehabilitation as good. Your conduct in leaving the nightclub immediately after the incident may well have been due to panic, but your subsequent conduct in attempting to flee to Turkey indicates a lack of acceptance of your wrongdoing. I do not consider that the fact that you purchased a return ticket in any way alleviates this conduct. Further, whatever conclusions are drawn from the jury's verdict, it is clear that the jury did not accept your account that the stabbings were accidental. That is, the jury was satisfied beyond reasonable doubt that much of your account was false. In R v Asad Buchanan JA said:
"It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender in his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related."[2]
19 I have read and taken into account the moving victim impact statements. The role of victim impact statements was described by Vincent J, as his Honour then was, in R v Beckett as follows:
"They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it."[3]
20 As the Crown prosecutor said, in this case the victim impact statements fall into three separate categories. First, there are those concerning the impact of the death of Mark Russo. The irreplaceable loss suffered by his parents, siblings, other relatives and friends is eloquently described. He was a much loved 23 year old man with his whole life ahead of him. In just a few violent seconds all of the joyful hopes of those close to Mark were destroyed forever. Secondly, there are statements concerning the impact of the severe injuries suffered by Carl Russo. The evidence clearly established that he was lucky to have survived the stabbing. His recovery has been long and painful and as a result of the loss of a kidney he will be left with at least one permanent outcome of the assault. Needless to say, the battle by Carl Russo to recover from his injuries and consequent side effects has had a traumatic effect on his family and friends. Finally, there are statements concerning the impact of the attacks on the social life of the young relatives and friends of Mark and Carl Russo due to their anxiety and lack of confidence in venturing out into crowded public areas. Together, the statements are a salutary reminder of the trauma, grief and anguish your actions have caused, and will continue to cause for the indefinite future, to the family and friends of Mark and Carl Russo, particularly to those struggling with the senseless manner of death of their loved one.
21 As part of the Crown's case on your plea, there was tendered a statement dated 9 May 2006 by Detective Inspector Bernard Rankin of the Victoria Police Homicide Squad. Inspector Rankin stated that, between 1 December 2003 and 9 May 2006, the Homicide Squad had investigated 137 incidents of homicide, of which 57 victims had died as a result of a stab wound or wounds inflicted by an offender armed with an edged weapon, such as a knife. Of the 57 incidents, 31 had been located at a house or dwelling, 19 in a street or car park, three at licensed premises, two at business premises, one at a railway station and one in a prison. Mr Grant submitted that this evidence simply suggested that it was easier to access knives rather than guns, and emphasised that only three of the 57 stabbings had occurred in licensed premises.
22 Whatever this evidence showed about the prevalence of fatal stabbings, and to my mind it was rather equivocal, it is quite clear that the Court and the community which it represents cannot accept the carrying, and use, of knives in public places. Knives can be dangerous weapons. Resort to the use of the knife being carried brings with it a real risk of the infliction of serious injury. There are, therefore, significant questions of general deterrence and protection of the community to consider when fixing appropriate sentences for your crimes. It is necessary for the Court to say to you, and others like you, that in the event that a knife is used in circumstances such as those which resulted in the death of Mark Russo, then a penalty must be imposed, consistent with other principles such as totality and parsimony, to condemn the carrying and use of a knife and to deter the future carrying and use of knives as offensive weapons. Just why you took the knife to the nightclub on that night remains a mystery.
23 It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. The Court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence take away such life. There must never be any doubt about the commitment of the community and the Court, through which it speaks, to reflect the importance of human life through the imposition of substantial penalties, where an offender has killed another member of the community with murderous intent and without lawful justification or excuse.
24 Orhan Akkus, having regard to the above matters and to the purposes set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 19 years' imprisonment for the murder of Mark Russo (being count 4) and to a term of 8 years' imprisonment for intentionally causing serious injury to Carl Russo (being count 2). As conceded by your counsel, there must be partial cumulation to reflect the fact that although the two offences occurred at the same time and place, two separate assaults occurred, resulting in the death of one victim and serious injury to the other. Accordingly, I order that 3 years of count 2 be served cumulatively upon the sentence of count 4, making a total effective sentence of 22 years' imprisonment. I fix a non-parole period of 17 years. I declare that pursuant to s.18(4) of the Sentencing Act you have already served a period of 609 days in custody and I direct that this declaration and its details be entered into the Court record.
25 Pursuant to s.78(1) of the Confiscation Act 1997 I order the forfeiture to the State of the black handled knife used in the stabbing of Mark Russo, and I further direct that the knife be placed in the custody of the Chief Commissioner of Police and be held by her until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed by her.
26 Further, pursuant to s.464ZF(1) of the Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by you, Orhan Akkus, on 24 November 2004 be retained for placement on the database. I am satisfied that, in all the circumstances, the making of the order is justified having regard to the seriousness of the circumstances of the offending, the fact that the granting of the order is in the public interest and the fact that the order is consented to by Mr Akkus.
[1] See R v Storey (1998) 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell AJA and at 380 per Callaway JA; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281 per Gleeson CJ, Gaudron, Hayne and Callinan JJ; and R v Cheung [2001] HCA 67; (2001) 209 CLR 1 at 12-13 per Gleeson CJ, Gummow and Hayne JJ.
[2] [2003] VSCA 3 at [14 footnote 8]
R
Akkus [2006] VSC 264
(1998) 1 VR 359
(1999) 199 CLR 270
(2001) 209 CLR 1