16 You are now 34 years old. You were born in Turkey and moved to Australia with your family as a young child in 1974. You have 4 brothers.
17 You finished school at year 11. You have been hard-working throughout your life, starting with part time jobs selling newspapers and takeaway food whilst still at school. After leaving school you worked in various jobs, as a hospital cleaner, selling souvenirs and at a paper factory. You worked at the paper factory until you were 29, at which time you married Sezgin Duran. You then worked for a security firm for a number of years, including as head of security at the Melbourne Markets.
18 In about 2001, you bought a 7-11 franchise and set up a store in Newport. In order to do so, you sold the two properties you owned and borrowed additional money from the bank. You ran the 7-11 store with your wife until about 8 months before the offences occurred. Because Sezgin was charged with the unauthorised use of a customer's credit card, under the franchise arrangements she was no longer allowed to work in the store. This caused you hardship, as you had to work very long days to keep the business going. Your counsel says that this was the catalyst for the breakdown of your marriage, and that before this happened you and Sezgin had been living together relatively happily. You subsequently became concerned about what you regarded as excessive expenditure by her.
19 Some 15 or more years ago, before your marriage to Sezgin, there was an incident in which her father stabbed your father about 25 times. Your father survived, although following the incident your elder brother became mentally disturbed, having to be hospitalised many times. One of your younger brothers suffered from renal disease, following which he received a kidney transplant. I accept that you have been supportive of your family in relation to such problems and generally, and that at least some of them are still supportive of you.
20 Because it was a condition of the franchise agreement that you be personally present at the store, the business had to be sold on a "fire sale" basis after you went into custody for these offences. This has caused you substantial financial loss.
21 You informed Dr Lester Walton, the psychiatrist who prepared a report for your plea, that you have never had any difficulties with alcohol abuse or illegal drug use. That is not true. Your counsel informed me that your previous conviction occurred when you were intoxicated. I also note that the sentence for that offence included a requirement that you submit to drug and alcohol testing and attend an anger management program.
22 In his report, Dr Walton concludes that he suspects that you are now suffering from a diagnosable depressive disorder, but it is reactive to recent circumstances and not an explanation for your offending. You have no other psychiatric history and are of normal intelligence. He suggests you would benefit from psychological counselling.
Other sentencing considerations
23 The maximum penalty for intentionally causing serious injury is 20 years' imprisonment. The maximum penalty for affray is 5 years' imprisonment.
24 This is a serious example of the offence of intentionally causing serious injury. You arranged for your brother to come over to your house in order to drive you to where you thought Ali Duran would be. You went into the café, armed with a baseball bat, looking for Mr Duran, making threats of violence against him. When you found he was not there, you got back in the car and went looking for him. As soon as you saw him a little way down the street, you got out and engaged in a vicious and unprovoked attack with the bat on a frail, unarmed victim, who was minding his own business, waiting at a tram stop. You hit him about 15 times, causing serious injury.
25 The attack occurred in broad daylight, on a busy road, in full view of pedestrians, motorists and people on the tram. I have no doubt from the various witness descriptions that it must have been a shocking spectacle, such that a bystander of reasonable firmness and courage might reasonably be expected to be terrified. One witness described the scene as like a war zone. Another said she had never seen anyone hit so hard. Not only could bystanders see what you were doing, but they could hear your violent abuse and the sickening noise as your bat made contact with your victim. It is a serious example of the offence of affray.
26 Because you lied to police about what happened, I have no personal explanation from you as to why you attacked Mr Duran.
27 Your counsel referred me to some evidence of past violence by Mr Duran towards his own family, as well as his very old attack on your father. He said this placed you in some fear of Mr Duran. Even if I accepted that you were generally afraid of Mr Duran (about which there was contradictory evidence), that would not justify or adequately explain your actions in seeking him out and attacking him that day.
28 The only other explanation offered by your counsel for your conduct is that you felt depressed, rejected and frustrated that your father-in-law could not or would not persuade his daughter to reconcile with you. That may be so, but your behaviour was a completely inappropriate response to what was, no doubt, an emotionally difficult period of your life.
29 There are a number of mitigating factors. First, you were initially charged with the more serious charge of attempted murder. When that charge was dropped shortly prior to trial, you offered to plead guilty to the charges of intentionally causing serious injury and affray. You are entitled to have that fact fully taken into account in your favour and I do so.
30 Although you initially lied to police and sought to blame Mr Duran for what happened, I accept that you now feel some remorse for your actions. At your plea, your brother, Tamer, gave evidence that you felt very sorry for what happened and wish it hadn't occurred. According to Dr Walton's report, you have displayed "appropriate remorse" for the offences you committed, and have accepted responsibility for your actions. However, at the same time, I note that the account of the incident which you appear to have given to Dr Walton significantly understated your culpability in the offence and sought to blame the victim.
31 You have one prior conviction, involving a threat to kill. Your counsel informed me that this occurred after a close friend had been stabbed; he ultimately died from the injuries. You felt that the police had not done enough and had let the assailant go free. In a state of intoxication, you telephoned the police and made threats to kill them. It is evident that the sentencing magistrate took the circumstances of the offence into account in sentencing you to a community based order and fine. I accept that you have otherwise been a law-abiding citizen.
32 There is one criminal matter outstanding. You have recently been charged with the theft of 119 mobile phones, valued at $35,000, from a factory. It is alleged that you committed the theft six years ago, whilst employed by the security firm which patrolled the factory. The committal mention is at the end of the year. I am told that you intend to contest the charge, so have no regard to it for sentencing purposes.
33 Based on your personal history and the report of Dr Walton, I accept that your prospects of rehabilitation are good.
34 Nevertheless, there are other matters which I am required to take into account. Unfortunately, violence inflicted in circumstances where a person is incapable of coping with the breakdown of a relationship is all too common. Like-minded people must understand that if they inflict violence in those circumstances, then serious consequences will follow. I am also required to denounce your conduct and impose a just punishment.
Sentence
35 I have had regard to the range of sentences handed down in this court over recent years for the crimes of intentionally causing serious injury and affray, bearing in mind that they can only provide general guidance and that each case must be assessed having regard to the individual circumstances of the offence and the offender. I have also had regard to recent statements of principle by the Court of Appeal in relation to intentionally causing serious injury.[1]
36 In respect of count 1, being the count of affray, I sentence you to imprisonment of 12 months.
37 In respect of count 2, being the count of intentionally causing serious injury, I sentence you to imprisonment of 6 years.
38 The final question which arises is the extent to which I should order that your two sentences be served concurrently or cumulatively. It is true that a single incident has given rise to both offences. But affray is a discrete offence, committed irrespective of whether injury also occurs. Its genesis is in the unlawful fighting of such a degree that a bystander of reasonable firmness and courage might be expected to be terrified. It follows that there ought to be some degree of cumulation to reflect that fact. I order that 6 months of the sentence imposed on count 1 is to be served concurrently with the sentence imposed on count 2.
39 This makes a total effective sentence of 6 years and 6 months. I fix a period of 4 years as the period you must serve before becoming eligible for parole.
40 I declare that the period to be reckoned as already served under the sentence is 648 days inclusive of today's date and I direct that there be noted in the court's records the fact that the declaration has been made and its details.