R v Bayram [2011] VSC 10

Supreme Court of Victoria|2011-02-04|Before: KING J

MURDER - plea of guilty - prisoner aged 61 - no prior convictions - murder of wife - family law dispute over property - 19 years with 16 years minimum.

1 Omer Bayram you have pleaded guilty to one count of murder on 1 February 2010, in that you did murder your wife, Sirin Bayram, at your family home in Greenvale in Victoria.

3 This murder was brought about by separation and planned divorce. The circumstances that led to the marriage and ultimately the seeking of the divorce and the consequences that flowed from that, require some background explanation.

4 As stated you were born in Cyprus, the son of a shepherd you were predominantly under educated and migrated to Australia in May of 1972 when you were aged about 23. You sponsored your brother Sevket to come to Australia in 1973, you returned to Cyprus for a period of some years between 1976 and 1982 but then returned to Australia permanently in 1982. It was in 1983 that Sirin was introduced to you through correspondence via arrangements made between your families. In December 1984 you went to Cyprus, you met and married Sirin within two weeks and immediately returned to Australia and in June of 1985. Sirin arrived in Australia to reside with you, she was pregnant with your first child and thereafter in October Emine was born. You both worked hard, purchased a home, paid it off, extended the house, had another child and lived what appeared to be a normal married life. You worked predominantly nightshift at Dunlop rubber and your wife worked during the day at Ericson's, it would appear your paths crossed only to a small extent during most of that time.

5 In August of 2008, you were retrenched when the Dunlop tyre plant in Broadmeadows closed. You received a payout of some $220,000 which you used at least in part to purchase a Sydney Taxi Licence. You attended to looking after the premises as your wife still worked. Shortly after that, in approximately February 2009, you and your wife moved into separate bedrooms in your home in Greenvale. In April 2009 you went overseas. Prior to going overseas, your wife had informed you that she wished to have a divorce. It would appear that you offered her a sum of $250,000 as being full settlement in respect of the marriage. Not surprisingly, your wife wanted what she was entitled to, which was at least half of the assets acquired during the marriage. That included the Sydney Taxi Licence, the house at Greenvale which was of a relatively significant value, and cash, of which I understand, there was a significant amount in a bank account. You and your wife continued to reside in the one house. The children resided there also, although they both spent time at their respective partner's homes - at that time increasingly so, due to the unpleasant atmosphere existing in the house. You each prepared separate meals, watched television in separate rooms, rarely talked and when you did talk those discussions were unpleasant, according to the children.

6 In October 2009 this matter was first mentioned in Family Court proceedings and you were required to, and did give, undertakings relating to not disposing of the assets of the marriage. You were unrepresented and had not acquired a lawyer at the time of this incident. You confided to your brother on New Years Eve that you were aware your marriage was over.

7 Your wife had told her brother that she had started packing as she had found an apartment in Epping that she wished to purchase. The sum involved was some $380,000, this occurred on 30 January 2010.

8 Your son, Ediz Bayram, was at home on Sunday, 31 January through to Monday 1 February. He woke up at 7am and had left the house by about 7.30, having spoken to his mother briefly in the kitchen. What occurred after that time is a matter known only really to you and to your late wife. What the Crown stated in their opening was as follows:

An argument occurred between the accused and the deceased in the kitchen area of the home. During that argument, which involved some discussion as to the sale of the property as part of the divorce settlement, the accused grabbed hold of a knife off the kitchen bench and stabbed the deceased multiple times. According to the forensic pathologist Dr Baker who provided the autopsy report in respect of an autopsy carried out in February 2010, on 2 February, the deceased suffered five stab wounds which included the stab wound to the anterior chest which penetrated the heart and that caused major problems. There were stab wounds to the left lateral chest and one stab wound to the left lateral thigh. The deceased also had multiple incised injuries to the right hand, typical of defence-type injuries. The cause of the death was said to be as a result of multiple stab wounds that led to acute blood loss.

9 At some stage after you had stabbed your wife to death, you went and sat on the front step of your house. You were observed in this position at 8.30am by a neighbour named Ali Kamon but it was not until 9.01am that in fact you rang triple 000 to say that you thought you had killed your wife, that you had stabbed her.

10 Your counsel informed the court that the argument was over your wife's desire that the house be sold and your insistence that the house not be sold. It is quite clear that that is the basis of the argument that resulted in your killing your wife. It is mentioned in a number of the victim impact statements and although I cannot use what is written in those documents as being material capable of being relied upon in respect of this fact-finding, the references to the discussions and the arguments between you and your wife about the financial settlement are clearly supportive of what is being put forward as being the major reason for this killing. I therefore am prepared to act on the basis that that was the reason why your wife was killed, not that it was planned or premeditated but that you severely overreacted to her desire for a fair and equitable sharing of the joint assets.

11 This is a very tragic situation as can be seen from the five victim impact statements that have been tendered before the court, comprising statements from Sirin's mother, her brother, her niece, and more importantly even her son and her daughter. The son and the daughter have lost their mother but they have also, to a large degree, lost their father. You will be incarcerated for a lengthy period of time and they have ceased contact with you which means that their suffering is related to the loss really of both parents.

12 Your wife was a much loved woman, held in great affection by those who knew her. Her killing was senseless and a complete waste of a life that she was looking forward to leading. One in which she may well have been far more her own person. You have deprived her of that, you have deprived her mother of her daughter, her niece of her aunt, her brother of his sister, and most importantly, your children of their mother. For someone to lose their life over a sum of money is a despicable thing to occur and whilst I accept that people can get very upset over money, it is replaceable, human life isn't. Accordingly, whilst this is not at the highest end of crimes of murder, neither is it at the lowest, and it must be treated as a relatively serious form of murder.

13 Sirin was an important person in our community, every life is important and valued, hers was as important as every other member of our community. The parliament legislates for the highest possible penalty, that of life imprisonment to be available for the worst examples of offences of this type. The fact that the penalty I am going to impose is not life imprisonment does not reflect the worth or value of her life. Her life was totally invaluable to all members of her family and her friends. The sentence I impose does no more than reflect the legal principles that I am obliged to consider.

14 What I hope for her family, is that they do not always look at Sirin through the darkness of how she died, but through the light of how she lived. The joy that she brought to all of their lives. I hope that one day they can celebrate and enjoy that she lived and brought that sun into each of their lives. There is nothing a court can do to ease the pain of loss that all of them feel, and as I said the sentence imposed is not a reflection of her worth to this community.

15 Factors that need to be taken into account in your favour are that you pleaded guilty and that plea was indicated and entered at the earliest possible stage. I take it as being an indication of a level of remorse, not a high level of remorse, but a level of remorse in respect to the killing of your wife.

16 You were 61 at the time of the offending and you had no prior convictions, you had never been in trouble with the law and you've had nothing subsequent. That is a factor that is to be weighed in your favour in assessing the appropriate penalty to be imposed.

17 Your health records were supplied to the court, Exhibit 3, which records that you are a non-insulin dependent diabetic and you suffer from hypertension as a result. That was diagnosed in 2006 and 2007 and your blood sugar levels have been stabilised. Although your health is a factor that needs to be considered it is not such that it becomes an issue in relation to the time that you will serve in custody being more difficult or considered more onerous than other persons. The issue of diabetes and hypertension can quite successfully be managed in a prison environment as it can in the community. I do accept that you suffer this ill health, but you suffered it at the time of the commission of this crime, and it did not prevent the commission of the crime, it is not of such consequence that it would prevent the appropriate penalty being imposed. I will take it into account, but I accord it little weight.

18 I also have to take into account your personal circumstances. As indicated, you were born in Cyprus, you were one of seven children, you were educated to a low level in Cyprus and at the age of 14 commenced work in the British Army Camp first as a cleaner and then in the canteen. You went from there to the Nafi canteen and in 1969 you travelled with the British Army and served in Lybia. In May of 1972 you came to Melbourne and commenced work at Goodrich Tyres. You had very little English but you were seeking a better life. In 1973 your brother Sevket came to this country, sponsored by you, and you both lived together and worked at Goodrich Tyres.

19 Your brother Sevket met Fahri Kiamil, the brother of Sirin, and they became friends. It was through this friendship that you ultimately became aware of Sirin and it was a traditional arranged marriage that occurred between you. You were some 10 years older than Sirin. As indicated earlier, you and Sirin met and married in December 1984. Sirin clearly becoming pregnant on the honeymoon with the child Emine being born on October 26 some four months after Sirin arrived in Australia. Together with your wife you bought a house in Westmeadows in 1986 and then in 1987 your son Ediz was born. He is now aged 24 and Emine is aged 26.

20 In 1988 your wife went to work at Ericsson and you changed to the night shift; that meant that you worked from 11pm to 7am and you continued to do that until the time that Dunlop closed down in August 2008. You worked five days a week for that time. In 1990 your wife's mother and father came to Australia as permanent residents. In 1993 you and your wife did a house extension. On your 10th anniversary you had a holiday with your wife and in 1997 you and your wife purchased land in Hervey Bay. You and your son travelled to Turkey for a holiday in that same year.

21 You became involved with the Attwood Art Group, originally in about 1996 and then joined up with the Craigieburn Art Group which met every Monday night. You became most involved with that art group and two members of the group came and gave character evidence on your behalf in this court.

22 In 2007 you and your wife built a new house at Greenvale, having purchased the land some time earlier. It was this house that was the cause of the arguments. It was submitted that during the 20 years that you worked at Dunlop, whilst your wife worked initially as a factory worker at Ericsson and then as a clerk, it was that you would, on return that morning, prepare the children's lunches, get them dressed, take them to school, go home, have a sleep, pick the children up from school, organise the evening meal and have the house ready by the time your wife came home and it was after that that you would go to work. There is no material to dispute that, so I accept that that was the manner in which you lived. Your counsel described the fact that you two really had lived in two separate worlds or two separate parts of the day for 20-odd years, apart from your holidays and weekends and that would appear to be the situation.

23 You have been working in the kitchens in the prison since you have been on remand and you now occupy a senior position at the MRC. You have done the usual food handling and occupational health and safety courses to enable you to do that. You were remanded in custody after this offence occurred and your children continued to visit you until August of 2010 when at some stage they ceased to visit or have contact with you. Reading the victim impact statements of the children and listening to what your counsel submitted, there would appear to be some financial issue between you and the children that has caused the cessation of contact - to do with assets being frozen or moved. Both children now have to maintain what is a large home on two relatively modest incomes and they have found that quite difficult.

24 Two witnesses gave character evidence on your behalf, being Betty Ann Maher, and Margaret Ann Benny, both of whom know you through the Craigieburn Art Group. They described you as a gentlemen, considerate and kind with a strong interest in art. Both of them have in fact maintained contact and correspond with you whilst you have been on remand. I also received a number of written references attesting to your previous good character.

25 Your brother Sevket Bayram also gave evidence on your behalf and he confirmed how you met your wife was through his friendship with your wife's brother. He also stated that initially after the murder had occurred he and your wife's brother no longer spoke but they have of recent time resumed their friendship. He said that in your discussions you told him you didn't remember how it happened. All you remember is falling on your knees and after that being on the steps and ringing triple 000. That you told him, is all you can remember. In relation to the issue of remorse, he was asked this question:

Q: Has he said anything about how he feels about what happened, whether he's sorry or not or what the situation is?

A: Yeah. He is very angry, he's very angry with himself for his wife, for the kids, for the family, for us, for his wife's family, he's very upset about it.

Then in relation to the issue of money and how he felt about the resolution of the financial settlement, he was asked a series of questions first by Mr Rose in cross-examination:

Q: When you became aware your brother and his wife were going to get a divorce, did your brother ever discuss property settlements with you?

A: No we never discussed what the property settlement. We always talked about he wants a divorce and we actually we did talk about it 'So how you going to do it'. He said to me 'My wife wants to sell the house but the kids always angry, they don't want to sell the house'.

Q: Did he discuss with you how much he'd give his wife?

A: He didn't want to give her 50/50.

Q: He didn't want to.

A: Want to give her 50/50, yes we did discuss that.

Q: So he did or he did not want to give 50/50?

A: He did not.

When re-examined by Ms Stephanides, junior counsel. He was asked:

Q: just on that issue about 50/50, was it a situation about that he wanted to keep the house for the children?

HH: You ought not lead.

Q: Sorry your Honour. Did he indicate who he wanted the house for when he indicated?

A: The reason he didn't want to give her 50, he said I don't want to sell the house.

Q: Right.

A: I will give her whatever the court, actually he said I will give her whatever the court decided. He's say that but the house I don't want to sell it. I want to keep the house for the kids. This was the talking between us.[1]

26 There is some evidence of remorse on your part, but relatively limited evidence. You have however accepted your guilt and responsibility immediately for this matter, and not exacerbated the situation by running a trial. As indicated I take your plea as at least an indication of some remorse.

27 Your children no longer have any form of contact with you, which is a change from the initial stages of your incarceration. The children used to accompany your brother to visit you on remand but have ceased that activity due, as I ascertain it, to certain financial circumstances that have arisen and their view of your involvement in those problems. As there is no evidence before me relating to those matters or the details of them, I will not act upon that in any way that could aggravate your sentence. The fact that you have lost the company of your two children ought not be surprising to a degree as you have murdered their mother, who they both loved a great deal.

28 I must take into account your age and ensure that the sentence I impose upon you is not a crushing sentence, and gives due weight to the factors to which I have referred in mitigation. I also have to balance those matters personal to you with the matters of both general and specific deterrence, with general deterrence being of true significance, and personal deterrence being a lesser requirement in your case. I bear in mind the principles contained in the Sentencing Act in determining the appropriate sentence.

29 Accordingly, on the count of murder, I sentence you to be imprisoned for a term of 19 years. I direct that you are to serve a minimum of 16 years before becoming eligible for parole.

30 I declare that you have served 368 days pre sentence detention and such should be noted in the records of the court.

31 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for the plea of guilty the sentence that would have been imposed was 22 years with a minimum of 18 years.

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