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[2006] VSC 447
Supreme Court of Victoria
2006-11-29
Hollingworth J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Intentionally causing serious injury - Affray - Vicious, unprovoked attack with baseball bat on frail victim at tram stop - Guilty plea - One prior conviction - Total effective sentence of imprisonment of 6 years 6 months
1 Altaman Selcuk you have pleaded guilty to one count of intentionally causing serious injury and one count of affray.
2 The person you seriously injured was Ali Duran, your uncle and former father-in-law. In 1999, you married his daughter, your cousin, Sezgin Duran. It was your second marriage, her first.
3 Sezgin left you in January 2005 and moved back home with her parents. From when Sezgin moved out until the day of the offences, 19 February 2005, you made continual attempts to reconcile with Sezgin by contacting her and her family. A week before the offences were committed, on 12 February 2005, you met with Ali Duran in your car near his home. You discussed the breakdown of the marriage.
4 You continued to try to persuade Sezgin to return. You threatened to show her parents photographs of her with another man. She knew such photographs did not exist. On the day of the offences, you made 44 mobile telephone calls to Sezgin's phone. During one of them, she called your bluff and told you if you wanted to show her father the photographs, you should go to "the café", and he would be there.
5 Some hours after that call, you telephoned your brother, Asim Selcuk, and asked him to come around to your place, because you had drunk too much to drive. You told police in your record of interview that you had in the previous 24 hours taken about 6 or 7 Panadeine Forte tablets and about 4 "No-Doze" tablets. Given the alcohol and other substances in your system, combined with your feelings about your failed marriage, I accept that you were in a highly agitated state.
6 Your brother drove from his home in Flemington to your home in Brunswick. He parked his car at your place, and drove you in your car to a Turkish café in Sydney Road, which Ali Duran attended regularly. This was at around 6:30pm.
7 Asim double-parked outside the café and kept the motor running. You got out of the front passenger door and walked into the café, carrying a wooden baseball bat. You walked to the back of the café, turned around and walked back to the front door. You told patrons that you were looking for "Sydney Ali". Ali Duran was known as "Sydney Ali", because when he first arrived in Australia he lived in Sydney. One patron recalled you saying "I am going to kill him, cut him limb by limb". Another patron recalled you saying words which loosely translated as "I am going to fuck him". You were speaking in Turkish.
8 You left the café and got back in the car. Your brother drove down Sydney Road, towards the city. A short time later, you saw Ali Duran near the intersection of Sydney Road and Edwards/Reynard Street, Coburg. He was on the footpath, waiting at the tram stop. Although only 61 years old, Mr Duran used a walking stick and moved slowly, as a result of previous strokes and ongoing health problems.
9 Asim parked the car near Ali Duran, partially in the intersection, obstructing traffic and a tram. You got out of the car and attacked Mr Duran with the baseball bat. The first blow hit him on the right hand, fracturing his right index finger and knocking him to the ground. You continued your attack, hitting him with extreme force approximately 15 times to the legs, arms, back and head. You were violently abusing him as you did so. Mr Duran tried to protect himself by putting his hands up and curling into a foetal position. The attack took place in broad daylight, in front of many bystanders.
10 You and Asim left the scene hastily, Asim driving the car south down Sydney Road. Witnesses reported the loud revving of an engine and screeching tyres.
11 Mr Duran was attended to by bystanders. A short time later an ambulance arrived and he was taken to hospital. Mr Duran sustained a 15cm laceration to the back of his head that required more than 20 staples. He also suffered a cerebral contusion to that area of his head, fractures to the right shin bone and right index finger, and extreme bruising to his legs, back, buttocks, arms, head, hands and face.
12 Mr Duran died a few days later, on 24 February 2005. The post-mortem revealed the cause of death to be acute cerebral infarction and cerebrovascular disease. The mechanism of death was the swelling of the brain as a consequence of infarct, resulting in internal herniation. You are not legally responsible for Mr Duran's death, because of his pre-existing health problems and the doctors' inability to quantify the extent to which your attack may have contributed to his death. I am therefore not sentencing you in respect of Mr Duran's death.
13 When interviewed by the police, you gave a version of events which was, with a few exceptions, a complete fabrication. In essence, you alleged that you had gone there unarmed and at Mr Duran's request. You said Mr Duran produced a knife, so you went to the car and obtained a club-lock to use as a weapon in self-defence. The false versions which you and your brother gave to police resembled each other to such a degree that you must have colluded in at least the key elements of them.
14 Seven victim impact statements were filed by the Crown: one of them is from Muradiye Duran, Mr Duran's wife, and the rest are from his children: Deniz Duran, Zubeyde Duran, Ugur Duran, Sezgin Duran, Tulay Daniskan and Nuray Ilanli.
15 Even though you are not legally responsible for it, Mr Duran's family members have suffered from his death, for which they quite understandably blame you. They miss him greatly and have lost much enjoyment of life. Some feel particularly sad at being deprived of the opportunity to say a proper farewell, because Mr Duran was in a coma before he passed away. Mr Duran's wife is now severely depressed and anxious and takes anti-depressant medication. Sezgin blames herself for what happened, even though what happened to her father is not her fault.
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.
[1] DPP v Zullo [2004] VSCA 153; DPP v Ross [2006] VSCA 223; DPP v Giffen [2006] VSCA 219.
R
Selcuk [2006] VSC 447