R v Deniz [2003] VSCA 23

15. The applicant was charged with murder of the deceased arising from the events of 5 October 1999. After a nine day trial, the jury acquitted the applicant of murder and convicted him of manslaughter. In sentencing, the learned sentencing judge found that the type of manslaughter committed by the applicant was by unlawful and dangerous act.

18. Initially the applicant filed notices of application for leave to appeal against both conviction and sentence. However prior to the hearing the applicant filed notice of intention to abandon the application against conviction. To that end, at the outset of the hearing, the Court granted leave for that withdrawal. Accordingly, the application proceeded as against sentence only.

21. The applicant killed the deceased in the following circumstances.

24. 7 The applicant, a male of Turkish origin and aged 52 years, on the afternoon of Tuesday 5 October 1999 went to a small coffee lounge in Sydney Road, Coburg to associate with other men of Turkish origin and to play cards for small sums of money. One of the men was the deceased, then aged 37 years. The deceased, as well as being 15 years younger than the applicant, was a considerably larger man physically than the applicant. At about 7.00 pm an argument occurred at the card table over which suit was trumps in the card game, a Turkish game called Batak. The deceased then swore at the applicant in Turkish (the conversations all were in Turkish) in a most insulting way, saying "I'll fuck your mother and your wife", threw his cards into the applicant's face, punched the applicant a number of times and held him around the throat. The applicant's spectacles were thereby pushed into his nose, cutting it, and he fell to the floor against a nearby wall heater. The two men were then separated by their companions and the applicant (not the deceased) was taken outside by them.

27. The applicant suffered no physical injury in the altercation other than a cut nose. There was evidence that the insult by the deceased to the applicant at the table within the coffee shop was culturally intensified by the circumstance that the insult was to an older man and in public in the presence of other men.

30. It is clear on the evidence that the deceased, a younger and more powerful man, attacked the applicant, an older and smaller man, physically and verbally inside the coffee lounge. The attack was of a very brief duration.

33. The applicant thus was outside the coffee lounge, on the street. The deceased resumed his seat at the card table with a number of the other men and continued playing cards. A friend of the applicant, on the street, offered to drive the applicant home but the applicant declined. The applicant said to one of the men outside "I'm going to fix him up" or "I'm going to fix things up".

36. The applicant then, from the street immediately outside the coffee lounge, said "After fifty years am I going to get bashed up?" and then shouted a grievous insult to the deceased ("I'm going to fuck your mother and your wife") who immediately left the card game, went outside and commenced physically to remonstrate with the applicant. The applicant stabbed the deceased with a knife, three times, twice in the chest and once in the back. The knife was in the applicant's right hand. The deceased fell to the roadway and there died within minutes. The applicant left the scene, retaining the knife in his possession. The cause of death was a stab wound to the heart.

39. At the time the applicant (outside the coffee lounge) shouted the insult to the deceased (inside the coffee lounge) the applicant was seen to have his right arm behind his back with his hand obscured from view. Witnesses saw the knife in the right hand of the applicant after the stabbing. It is clear that at all times the applicant had the knife on his person, but hidden. The knife was a pocket knife which required two hands to open it. It is clear that at some time before the second incident the applicant had opened the knife to expose the blade. There was a period of some three to four minutes between the two incidents.

42. It was the prosecution contention at trial that the applicant engineered the second incident by luring the deceased outside by shouting the insult at the deceased, in order to kill him or cause him serious bodily injury in revenge for the insult the applicant suffered in the first incident. By its verdict of acquittal on the count of murder, it is plain the jury was not satisfied of that prosecution hypothesis.

45. The applicant having fled the scene, gave himself up to police four days later, having first obtained legal advice. He provided to police a brief one page typed statement which stated that he acted in self defence and did not intend to kill the deceased. He declined to answer police questions and remained mute at trial. The knife with which the applicant had stabbed the deceased was provided to the police by the applicant's solicitors two days after the arrest of the applicant. At trial, where the applicant was represented by counsel, his defence was that he acted in self defence and was guilty neither of murder nor of manslaughter. He was, as I have said, convicted of manslaughter.

48. The learned sentencing judge in his reasons for sentence concluded that the proper characterisation of the jury's verdict was not provocation manslaughter but was unlawful and dangerous act manslaughter, and thus he characterised the stabbing as lacking intent to kill or do really serious bodily injury. This was a merciful view of the facts but entirely supportable.

51. The primary grounds of the application are that the learned sentencing judge gave no or insufficient weight to the pre-offence conduct by the deceased as mitigating the offence, and that the sentence imposed was manifestly excessive.

54. As to the ground that no or insufficient weight was given to the pre-offence conduct by the deceased as mitigating the offence, there is some material in the reasons for sentence which in isolation would appear to support the ground. That is the following passage:

"When considering the nature and gravity of the offence for which you are being sentenced, I take into account the trivial nature of the dispute which led to the deceased's death and the circumstances surrounding that death generally, which lead me to a conclusion that within the range of appropriate sentences for manslaughter caused by an unlawful and dangerous act, this offence is towards the graver or more serious end. Having regard to the jury's rejection of your plea of self defence, your culpability and degree of responsibility for the offence is also high, notwithstanding the actions of the deceased. In reaching this conclusion, I considered the submissions of your counsel to the effect that there are still elements of self defence present which in some way diminished your responsibility. I disagree. On any view, arming yourself with a lethal weapon and using it as you did indicates significant criminality within the wide range of criminality encompassed by the offence of manslaughter."

58. It could be said that the learned judge there appeared to focus upon the initial dispute about the cards rather than the aggressive and humiliating conduct of the deceased to the applicant. However, properly construed I consider his Honour did not fall into the error contended by the applicant. Prior to the quoted passage, his Honour had reviewed generally the evidence and concluded that the proper characterisation of the jury's verdict was not provocation manslaughter but unlawful and dangerous act manslaughter. As I have said, this was a merciful conclusion. Having so concluded, it does not appear that his Honour regarded the relevance on sentence of the aggressive and humiliating conduct by the deceased as spent. That is evident by his Honour's statement "notwithstanding the actions of the deceased". His Honour plainly had regard to the actions of the deceased. Throughout the conduct of the trial his Honour demonstrated a clear appreciation of the cultural dimension of the case including of mitigatory facts. It is not to be supposed that that appreciation deserted his Honour in consideration of sentence. I consider that he did not fail to take such matter into account. Having taken it into account, this Court is slow to interfere on a matter of weight, the sentencing judge having seen the witnesses at the trial and having a living understanding of the facts. As Callaway, J.A. stated in R. v. Bernath[1] (in whose judgment Winneke, P. and Brooking, J.A. agreed):

"A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error. The underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law. It is well established. See, for example, Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513 at 533. The same caution is appropriate when it is said that a sentence is manifestly excessive. In all three cases the question is whether the sentencing discretion was soundly exercised, not how we should have exercised it ourselves."

62. I consider that there is no substance in the ground that his Honour gave no or insufficient weight to the pre-offence conduct by the deceased as mitigating the offence. This ground fails.

65. In the notice of application for leave to appeal against sentence, there were many detailed grounds and particulars set out, but Mr Boyce in a helpful and considered submission on behalf of the applicant proceeded upon the sensible basis that they were, essentially, particulars of manifest excess. To that ground I now turn.

68. The applicant, as I have said, was 52 years of age at the time of the offence and 54 years at the time of sentence. He was born in Turkey and came to Australia when he was 27 years of age. He was naturalised. He was married, with five children. At the time of the offence he was living apart from his wife and family. He had a gambling problem and some convictions, to which I shall come. On the plea, evidence was called that the applicant was profoundly distressed by the fatal events and their consequences.

71. The sentence imposed was towards the higher end of sentences imposed for unlawful and dangerous act manslaughter. And that was so in a case where the applicant was assaulted by and grievously insulted by the deceased, a much younger, larger and stronger man. However, the deceased had no weapon. The assault caused no injury of any consequence to the applicant. The two men were in the company of numerous others. There was no objective risk of serious injury to the applicant. And his Honour rightly identified the pivotal exacerbating factor: the applicant had with him, and used to fatal effect, a knife. That of itself, and for general deterrence, was a central and significant factor in sentencing. The use of knives to solve or remedy real or perceived problems must be discouraged by appropriate sentences.

74. Further, the applicant had prior convictions of some relevance. Apart from inconsequential or irrelevant prior convictions, he was convicted in the Magistrates' Court in 1994 of being in possession of a dangerous article (contrary to s. 7(1) of the Control of Weapons Act 1990) and fined $600.00. The article was a knife, found on his person at midnight on a public street. He was convicted in the Magistrates' Court in 1995 of causing injury intentionally or recklessly and of assault by kicking and fined a total of $750.00. Those offences were on a 17 year old female and 16 year old male whose affectionate public conduct the applicant disapproved of. He was convicted in the Magistrates' Court in 1996 of unlawful assault and fined $500.00. That offence occurred in a café in Sydney Road, Coburg. His Honour properly and in a circumscribed manner took those prior convictions into account on the matter of specific deterrence.

77. The deceased was a married man living with his wife and 10 year old daughter, who are grievously afflicted by his loss. He was 37 years of age at the time of his death.

80. Thus this was a case in which the applicant killed the deceased by stabbing, in response to a serious insult and minor assault in which there was no risk of serious harm or injury to the applicant. The deceased had no weapon. The applicant killed the deceased with a knife the applicant was carrying on his person. The Court must seek to deter the use of knives to solve or remedy real or perceived problems, by appropriate sentences. Plainly the learned sentencing judge in imposing sentence acted upon those considerations, while having regard to relevant mitigating factors. No error has been shown in his Honour's reasons or in the sentence he imposed. It cannot be said that the sentence imposed was manifestly excessive. This ground fails.

83. Accordingly, I consider that the application for leave to appeal against sentence should be dismissed.

[1] (1997) 1 V.R. 271 at 277. See also R. v. Feretzanis (2003) VSCA 8 at paras. 44 and 45.