REGINA v Gerry Osman MEHMET

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT 1 BELL J: On 21 October 2002 the offender was arraigned on an indictment charging him with the murder of his wife, Vanora Jean Mehmet, at Horningsea Park on 17 April 2001. He pleaded that he was not guilty of murder but guilty of manslaughter. The Crown did not accept that plea in discharge of the indictment and he stood trial. On 31 October 2002 the jury returned a verdict convicting him of murder. 2 The sole issue upon which the trial was fought was provocation. 3 The offender met his wife in 1993. She was then aged sixteen and he was twenty-nine. The deceased and her family lived in Canberra. The offender asked the deceased's mother if he could visit the family and see Vanora. Mrs Kasurinen agreed to this arrangement. Thereafter the offender started taking Vanora out. They quickly formed an attachment and, against the wishes of her mother and stepfather, Vanora left school and moved to Sydney to live with the offender. 4 The couple married in 1995. Mrs Kasurinen came to accept her daughter's decision and to welcome the offender into the family. The offender and his wife enjoyed a happy married life. They had difficulties conceiving a child and in 1999 they enrolled in the IVF Program. This was a stressful period for both of them. After a time the deceased became pregnant and in January 2000 their daughter, Tianna, was born. 5 The offender was employed with P & O as the transport manager. He worked long hours in an effort to provide material comforts for his family. He entered into finance agreements in order to purchase expensive cars for himself and his wife. After Tianna's birth he suggested to the deceased that she find a dream home for them to live in. Around August 2000 they acquired a handsome, new home at 21 Andrews Circuit, Horningsea Park. 6 When Tianna was about six months old the deceased's family started to detect signs of strain in the marriage. 7 By January 2001 the deceased was regularly travelling to Canberra to see her family. She helped doing bookwork for the family business. By February she was visiting Canberra with greater frequency and staying for longer on these trips. When in Canberra she would go out with her sister, Vanessa Whalan, and some of the younger employees of the family business. One of these was a young man named Fred Horvat. By March 2001 the deceased had formed a romantic attachment to Fred Horvat. 8 The offender was aware that his marriage was foundering and it distressed him a good deal. On 9 April 2001 he drove to Canberra to confront the deceased. The two talked and she told him that she had sexual relations with another man. The offender took this news with composure. He gave evidence, which I accept, of the contents of the discussion including that he said: "We all make mistakes in life. You know we have a baby girl, we have to look after her. We can work all this out, you know, we don't have to destroy our marriage because you've done something wrong." 9 The couple stayed together that night at the family home. The offender telephoned his employer and obtained time off work to sort out his marriage difficulties. He, the deceased and Tianna spent the next day together. On the evening of Tuesday 10 April the deceased went to see a counsellor. She told the counsellor of the confrontation the night before and that her husband had accepted her disclosure and that he still wanted her back. 10 Despite the couple's attempts to resolve their difficulties it is apparent that problems continued. The offender returned to Sydney on Wednesday 11 April leaving the deceased in Canberra. The following Friday, Good Friday, the offender spoke with Debra Franke, a family friend, about the problems in his marriage and his concerns that the deceased was having an affair. He conveyed to Mrs Franke his desire to see his marriage work. 11 On Saturday 14 April the offender drove to Canberra to spend the remainder of the Easter holiday weekend with his wife and family. He and the deceased went out for dinner. Later they met up with Vanessa Whalan and a friend of hers. The deceased was distant towards the offender that night. 12 Over the Easter weekend the offender confided in Mrs Kasurinen and Vanessa Whalan his fears that the deceased was having an affair. He spoke of his desire to see the marriage work. He was in considerable distress over the situation. 13 In a discussion with Mrs Kasurinen the offender asked if she thought that the deceased was having an affair. Mrs Kasurinen said that she did not think so. In this discussion the offender said, "I will kill the bloke" to which Mrs Kasurinen replied, "that will not resolve anything". The offender then said, "I will kill Vanora" and again Mrs Kasurinen told him that this would not resolve anything. Mrs Kasurinen did not consider the threat to be a serious one. The conversation ended with the offender crying in her arms. Her attitude was that she wanted her daughter and the offender to work things out because she loved both of them. 14 On the morning of Easter Sunday the family exchanged presents. It was apparent that the deceased was not happy with the gift that the offender gave her. Generally, the strain in the marriage was evident to other members of the family. During the course of the morning the deceased went with her father to deliver Easter eggs to the employees of the family firm, including Fred Horvat. This upset the offender. Vanessa Whalan tried to reassure him telling him not to worry and that nothing could happen because the deceased was with her father. During the course of this discussion the offender pointed to his eyes with two fingers and said, "Watch my eyes. If they get big I am going to kill her". Ms Whalan did not take the threat to be a serious one at the time.

15 The offender, the deceased and Tianna returned to Sydney on Monday 16 April. That night the deceased went to a concert with a young friend. The offender was at home with his daughter. He found some items associated with sexual experimentation in the deceased's suitcase. He telephoned Vanessa Whalan in a state of distress asking what he should do.

16 The following morning the offender did not go to work. He endeavoured unsuccessfully to make telephone contact with Fred Horvat on a number of occasions. Around 2:00 pm he spoke with Mr Horvat. In this discussion he said that he loved his wife very much and that he would like to get her back. Mr Horvat replied, "yeah, I will help you out there". 17 During the course of Tuesday 17 April Mrs Franke called to the Andrews Circuit home and spoke privately with the deceased who confided in her that she was confused and unhappy. Reluctantly she admitted that she was having an affair. She told Mrs Franke that she was no longer in love with her husband. Mrs Franke advised her that she owed it to him to tell him the truth. As Mrs Franke left the home at around 3:00 pm, she invited the offender to telephone her. At 4:08 pm that afternoon he did so. During the course of the telephone conversation Mrs Franke told the offender that the deceased's affair was an on-going one. They discussed the idea that the offender would give his wife an ultimatum; either she commit herself to the marriage or leave it.

18 After this telephone discussion the offender confronted the deceased in the family room. He gave evidence of the content of that discussion and of the events that led to the stabbing of his wife. He claimed to have no recall of the stabbing itself. Broadly, it was the offender's evidence that during the course of this discussion the deceased told him that she was returning to Canberra and that she would be taking Tianna with her. He described a prolonged argument during which the deceased picked up a knife and said to him, "Just back off, leave me alone." After this she went upstairs. He heard some noises over the baby monitor. He recalled walking upstairs to the master bedroom. When he entered the room he claimed to have seen a knife on the dresser. He said that he and the deceased continued to quarrel. He said to her, "please pack and just go, go away, go to Canberra". He claimed that the deceased taunted him saying that she had affairs and suggesting that Tianna was not his child. The next thing he remembered was that she was lying on the bed with a knife in her chest. She was white. He removed the knife and went downstairs. He claimed that he no longer wished to live. He cut his arms in the kitchen. After a little time he started to feel hot and strange. He went back up to the bedroom and saw that his wife was still lying on the bed. He had hoped that she would be alive. He placed the knife in her left hand. He was not able to say why he had done that. 19 The offender telephoned his sister, Suzanne Ioannou at 4:39 pm, leaving a message on her answering machine. Shortly after this Mrs Ioannou played the message and telephoned her husband directing him to go to the offender's home. She went over there herself. On her arrival she saw the offender in the kitchen of the premises. He had blood on him. 20 At 5:42 pm Mr Ioannou telephoned the 000 emergency number from the offender's home. In due course the police and ambulance service arrived. The offender received treatment for some relatively superficial cuts to both wrists. He was taken by ambulance to the hospital and thereafter he was interviewed at the Green Valley Police Station. 21 In the course of his interview with the police the offender gave an account of the quarrel with his wife leading up to her death. That account was significantly at odds with the evidence that he gave at the trial. During his interview with the police there was no suggestion that he had been taunted with the allegation that his child was not his own. He said that when he asked his wife, "Why didn't you tell me it was still happening?" she had replied, "I didn't want to hurt your feelings". He said that his wife had become upset at being given an ultimatum. He described her as becoming hysterical and alleged that she had swiped at him with something in the kitchen area of the house. Broadly, it was his account that his wife had attacked him with the knife, causing the injuries to his wrist and that she had then gone upstairs. He had heard noises over the baby monitor and he had gone upstairs and found her lying on the bed with the knife in her hand. 22 At trial there was no attempt made to persevere with the account that the deceased had killed herself in a frenzied rage. The offender acknowledged that he must have stabbed her, although he denied memory of that event. 23 Dr Langlois gave evidence of the conduct of the autopsy. The deceased had a number of defence wounds on both arms and hands. She had sustained seven wounds to the chest area. Some of these were relatively superficial. There were two significant wounds. 24 A wound extended deeply through the pericardial sac, passing through the heart and ending at the spine. The wound track was 20 centimetres in length. There were superficial wounds to the left side of the breast. A further wound, to the left of the breastbone, was a complicated wound. There was one incised entry wound. There were three wound tracks, meaning that the knife had been taken out and reinserted through the same hole in different directions, one track went more or less straight down, nicking the top of the liver and penetrating the stomach, ending at the spine. The track of this wound was 24 centimetres. The second track penetrated the pleural cavity of the chest, nicking the chest wall, it was 16.5 centimetres. The third track travelled more or less from the front to the back of the body severing the aorta. It was 14.5 centimetres in length. The two wounds that I have detailed were each fatal. 25 The deceased died as the result of a sustained attack. At least at the commencement of that attack she was endeavouring to defend herself. 26 I did not accept the offender's account of the content of the quarrel leading to the stabbing. I do not consider it to be likely that the deceased taunted him that he was not the father of their child. The offender gave no such account in the immediate aftermath of the killing either to his sister or to the police. I approach the matter upon the basis that shortly after speaking with Debra Franke the offender confronted the deceased, giving her an ultimatum that she must make a commitment to the marriage or leave. Thereafter I am not able to say what passed between the two of them, save that within a relatively short time the offender took hold of the kitchen knife and repeatedly stabbed the deceased. I do not believe a great deal turns on it, but I do not accept that the killing took place in the bedroom. The forensic evidence suggested that to be a most unlikely version of events. 27 I am satisfied beyond reasonable doubt that in the period after the stabbing the offender was involved in attempts to clean up the scene of the killing in an effort to deflect suspicion from himself. 28 I do not accept that the offender made a genuine attempt to kill himself. Rather, I am satisfied beyond reasonable doubt that he inflicted the superficial transverse cuts to his wrists as part of the hapless scheme to suggest that the deceased had killed herself. 29 The Crown succeeded in eliminating the reasonable possibility that the offender was acting under provocation at the time of the killing. This is not to say that the offender was not under very considerable emotional strain in the period leading up to (and at the time of) the killing. Nor is it to say that the killing was not carried out at a time when he had to some degree lost his self-control. The offender led evidence, which I accept, that he is a person of non-violent disposition. The killing was one of considerable ferocity. I accept that his violent response was uncharacteristic and that it flowed from a loss of control brought on by his frustration and distress in the circumstances in which he found himself. 30 The offender denied that he had made any threats in the course of his discussions with Vanessa Whalan and Mrs Kasurinen. I am satisfied beyond reasonable doubt that he made threats in the terms attributed to him by those two witnesses. I do not consider that the threat described by Mrs Kasurinen to have been a serious or considered one. In the period leading up to the killing the offender presented as a somewhat helpless individual, genuinely seeking to regain the affection of his wife. 31 The threat made in the discussion with Vanessa Whalan on the Easter Sunday seemed to me to be of a somewhat different character. By that stage, knowing that his wife was leaving a family function to see Fred Horvat (whom he strongly suspected to be her lover) the offender was in a very distressed state. I do not find that this graphic threat evidenced any plan to kill his wife should he learn that her affair was continuing. The Crown did not conduct the case upon the basis that the killing was a planned one (in this contingent sense). The significance of the threat is that in the days leading up to the killing the offender had entertained the thought that he might kill. 32 The killing was nonetheless unpremeditated and came about in circumstances of a spontaneous loss of control and rage during the course of the offender's confrontation with the deceased after his telephone discussion with Debra Franke. I am satisfied beyond reasonable doubt that at the time he stabbed the deceased it was the offender's intention to kill her. 33 A report from Ms Robilliard, a Psychologist, was tendered on the offender's behalf. Ms Robilliard interviewed the offender on 12 November 2002 and administered a number of tests designed to assess his personality and level of intellectual functioning. She detailed the history given to her by the offender in that report. He is aged thirty-eight years. He is the product of a stable upbringing, his parents were hardworking people, committed to the care of their children. Ultimately they separated, but both parents continue to take an active interest in the lives of their children. 34 The offender completed Year Ten of high school. Towards the end of his high school years he started working part-time at McDonalds. After finishing school he commenced as an apprentice mechanic with KSA Truck Repairs, Glebe Island. He completed his trade training and went on to buy two trucks and to work as a subcontractor for TNT. 35 At about twenty-three he joined Wallace Transport. Initially his role was to allocate trucks to their various assignments. Ultimately he became the Sydney manager of Wallace Transport and remained with the firm until it closed. He then spent some time working as a consultant in the transport industry before accepting a position as the transport manager with P & O, Port Botany. He had been with this firm for about seven years at the date of the offence. He made good progress, often travelling interstate to sort out problems and regularly working twelve-hour days. 36 Prior to forming his relationship with the deceased the offender was in a lengthy relationship with a young woman named Michelle. That appears to have been a stable relationship and the two have remained on good terms. 37 Ms Robilliard reported the results of her clinical testing and observations at interview saying this: "This man is soundly intelligent. His school progress was settled in high school although he admits a disturbed period in late primary years, which was quickly remediated by two weeks in a juvenile detention centre. Gerry had no difficulty expressing his thoughts and ideas during our interview and he responded to questions and the tests administered in a manner consistent with sound intelligence. Gerry's performance on the personality test administered identified him with a group who does not readily enter into close, intimate relationships. At the same time, a desire to be nurtured and cared for sets up a conflicted internal dynamic that can translate into feelings of resentment toward those with whom they are closely intimate. Unable to express their inner thoughts and feelings, a submissive, accommodating and congenial demeanour can mask their inner discomfort. Gerry described his relationship with Vanora as ostensibly happy and satisfying as long as he continued to satisfy her needs and wishes. This compelled him to work long hours, which was one of the issues that caused conflicts between them. Gerry admits feeling trapped however he also said he could never let Vanora know how worried he was about money issues or his perceived responsibilities because she was his 'princess' and he wanted her to have the lifestyle she desired because he loved her. For years this couple was undergoing IVF treatments, which appears to have had an erosive effect on their relationship. Like so many couples, they found the process profoundly invasive and sexual intimacy was reduced to a meaningless exercise that was ultimately superseded by a complex medical procedure. Gerry remembered watching his sperm being introduced to Vanora on a video screen. After the birth of their much wanted baby their relationship did not return to its former level of intimacy and closeness and within months Gerry recognises that he began to feel they were drifting apart. The process seemed beyond his control and he did not know how to address it. When he finally received confirmation on April 9 2001 that Vanora had another interest he reported saying in characteristic fashion, that he understood, 'everyone makes mistakes' and they would simply 'get on with being a family'. Inside he recalled feeling that she had 'reached in and torn my heart out'. When the offence occurred about two weeks later the couple were at home together when they began to argue. There had been a period of separation however not joint counselling had taken place, no effective discussion had occurred either and nothing was resolved. The situation was therefore potentially dangerous, which tragically, proved to be the case. His violent behaviour was apparently unprecedented." 38 I found Ms Robilliard's report to be both helpful and insightful. Ms Robilliard reported that the offender appeared to be deeply and genuinely remorseful over the death of his wife. She said that he accepted responsibility but continued to maintain that he did not intentionally kill her. He told Ms Robilliard that he was sorry that he did not tell the truth from the outset. 39 Ms Robilliard suggests that the offender would benefit from psychotherapeutic sessions to help him review his aberrant and violent behaviour and to gain insight into how to acknowledge and express feelings and emotions as they occur. 40 The offender has a minor criminal record that I do not propose to detail. It does not bear relevantly on the exercise of my discretion in this case. I accept the offender to be a person of otherwise good character who was a hardworking individual, making a useful contribution to society at the time of the offence. 41 The offender gave evidence at the sentence hearing. He expressed profound remorse for his conduct and an acknowledgment of the terrible effect of his crime on Marlene Kasurinen, Vanessa Whalan, and the other members of the deceased's family. 42 The Crown, in measured submissions, contended that I would assess the evidence as to remorse with some care. In this respect the Crown pointed to the circumstance that in the aftermath of the killing the offender's thoughts had been to protect himself. In the course of evidence at the trial and on the sentence hearing he had been tearful in chief, but rapidly recovered his composure under cross-examination. In the Crown's submission the offender continued to hold back from giving a truly frank account of the circumstances of the killing. I accept that is so. The significance of these matters is as to the assessment to be made of the quality of the offender's contrition. 43 I accept that he is sorry for what he did. He deserves credit for the evidence that he gave both acknowledging that he had killed his wife and recognising the impact of his crime on her family. In assessing the extent of the mitigation that this provides I take into account the Crown's submissions to which I have referred. 44 The offender is entitled to credit for the fact that shortly prior to the trial the Crown was advised that the case would be conducted on the limited issue of provocation. The trial was thereby considerably shortened. The conduct of the trial demonstrated the offender's acceptance of responsibility for his crime. 45 Joe St Angelo and Ron Franke gave evidence at the sentence hearing. Both are longstanding friends of the offender and have maintained contact with him since he was taken into custody. I accept that he has the on-going support of friends and of members of his family. He has spent his time in custody to date constructively. I consider the offender to have good prospects of rehabilitation. I approach the matter upon the basis that it is unlikely that he would re-offend. 46 The Crown tendered victim impact statements, one by Vanessa Whalan and a joint statement by Marlene and Ray Kasurinen. Each of them attended every day of the trial and was present at the sentence hearing. Their grief at their loss is palpable. Vanora and Vanessa were close sisters who both loved dancing and who supported each other at dance competitions. This was an interest that the two shared until Vanora's death. They were close confidantes and Vanessa speaks touchingly of her loneliness since her sister's death despite being an otherwise out-going young woman with friends. Mr and Mrs Kasurinen set out in terrible detail the experience of being told of their daughter's death and of identifying her body at the mortuary. They speak of Vanora as a beautiful warm, caring girl who enriched their lives. Understandably they express distress that their granddaughter will grow up without a mother. The Court expresses its sympathy to each of them in their loss. 47 I approach the contents of the statements mindful of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 85-86. 48 I was assisted by the parties' submissions, including by being referred to a range of cases said to be broadly comparable with the present. The Crown directed my attention to R v Elphick (unreported) NSWCCA, 2 July 2002; R v Cheung (unreported) NSWCCA, 11 December 1995; R v Nixon (unreported) NSWCCA 31 October 1995. The latter contains a discussion of an examination of a number of cases involving the murder of a woman by a man in circumstances of a continuing or recently terminated relationship. Mr Button supplied me with a schedule giving details of a large number of cases falling within this category. In particular, he referred me to R v Dundas (unreported) NSWSC, Studdert J, 15 April 1992; R v Kapar (unreported) NSWSC, Smart J, 27 October 1995. I have been assisted by a review of these cases. However, each matter calls for the exercise of individual discretion, taking into account the circumstances of the particular offence and of the offender. 49 Mr Button acknowledged that any parole period produced by the application of the statutory ratio will necessarily be a long one. He did not submit that this was a case in which I would find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. That seemed to me a sensible concession to make. I do not find that there are special circumstances in this case.

50 Gerry Osman Mehmet I sentence you to a term of eighteen years imprisonment to date from 17 April 2001, that sentence will expire on 16 April 2019. I specify a non-parole period of thirteen and a half years. The first date upon which you will be eligible for consideration for release to parole is 16 October 2014. **********

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