The Queen v Yucel [2018] VSC 506

2 The maximum penalty for manslaughter is 20 years' imprisonment.

3 The series of events that led you and Mr Khan to meet in the street outside your brother's Broadmeadows house in the gloaming of that July night are as complex as they are tragic.

4 You had, for a little more than 12 months, been living in fear of a man named Farshad Rasooli. In May 2015, you and Mr Rasooli had a public confrontation at the Hume Islamic Youth Centre over a debt he alleged you owed him. An associate of yours intervened by shooting Mr Rasooli in the leg. Mr Rasooli declined to involve police. Rather, he made it known that he sought revenge and money from you.

5 Your fear of Mr Rasooli was ongoing, genuine and reasonable. I accept that documents within the control of Victoria Police demonstrate their knowledge of Mr Rasooli's threatening behaviour and record police concern that you might be shot by him or his associates. Indeed, on 22 May 2015 police informed you of their concerns for your safety. One of Mr Rasooli's associates was Mr Khan, although, at the time, you knew him only as 'Hamza'.

6 People within your own circle, including your Imam, note that your general, subsisting fear was, at the core, a specific fear of being shot.

7 In the year leading to 12 July 2016, you took a number of steps to avoid Mr Rasooli and his associates, shield yourself and your family from the danger posed and even attempted to resolve the issues.

8 After receiving the police warning in May 2015, you fled to Turkey where you remained for about four months. Shortly after your return to Melbourne in September 2015, Mr Rasooli, together with a large number of his associates, attended the Hume Islamic Youth Centre searching for you. You made yourself difficult to find. You lived peripatetically, staying in different houses. You avoided parking your car immediately outside the address of any house where you stayed.

9 In early 2016, your brother was subject to telephone threats. In response, you spent some of February 2016 in Turkey. You again travelled to Turkey in April 2016. At the time of the incident you were planning once more on travelling to Turkey.

10 In 2016, Ramadan, the ninth month of the Islamic calendar, fell between early June and early July. During that holy month you had attempted, unsuccessfully, to resolve your differences with Mr Rasooli through the offices of your Imam. You feared that the end of that celebration might presage a reinvigoration of Mr Rasooli's desire to seek his revenge. Your ticket for departure on 20 July 2016 had been booked prior to 12 July 2016.

11 Fatefully, you had taken one further step in response to your fear of Mr Rasooli. At some stage in the year after the May 2015 incident, you acquired a firearm.

12 On 12 July 2016, Mr Khan and another man, Mr Rawani, drove together from Dandenong to Broadmeadows. They went first to 'MyCentre', a mosque with which you had some association, and then a kebab shop, just streets away from your brother's home. You were, at the time, living with your mother in a bungalow at the rear of your brother's property. Your brother, sister-in-law and their children lived in the main house.

13 Evidence shows that at 5.06 pm, a telephone number used by Mr Rasooli made a telephone call to the number used by Mr Khan. That fact was, of course, unknown and unknowable to you. But shortly thereafter, Mr Khan and Mr Rawani left the kebab shop and drove to the street in which your brother lived. Their vehicle was then parked about 50 metres away from your brother's house. Mr Khan and Mr Rawani walked towards, and on the opposite side of the street from, that house.

14 You arrived in the street at about 5.25 pm, parking your car in the driveway of a neighbouring house. Upon alighting from your vehicle, you were approached by Mr Khan and Mr Rawani as they crossed the street. You recognised Mr Khan as 'Hamza' and addressed him as such.

15 What happened next was observed by two witnesses and captured by CCTV footage.

16 A heated exchange occurred between you and Mr Khan. In amongst the angry yelling, you were heard to say words to the effect of, 'get away from here', 'I don't have any', 'get lost', 'don't make me angry just walk away' and 'I'll shoot you'.

17 You produced a gun. Mr Rawani tried to pull Mr Khan away. You fired two shots in rapid succession. At the time you fired that gun, Mr Khan was moving forward. Both shots were angled in a downwards trajectory. The first hit Mr Khan's leg. The second, fatal shot hit Mr Khan in the chest. It appears that Mr Khan was bending forward, 'lunging' or 'lurching' when that second shot hit.

18 In the moment there was nothing to indicate to you that Mr Khan had been seriously injured. Both he and Mr Rawani fled on foot to their parked vehicle before driving away. Indeed, it was only whilst in the car that Mr Rawani realised Mr Khan had been shot in the chest, observing a spot of blood. Having so realised, but being unfamiliar with the area, Mr Rawani drove around attempting to find a hospital. He could not. Instead he stopped at the Dallas shopping centre where nearby workers gave assistance. An ambulance was called, but the attending paramedics were unable to save Mr Khan's life.

19 Meanwhile, you told the neighbour who had witnessed the altercation, 'don't tell the police' before you entered your brother's house. Five minutes later your brother and his family left their home in their car. You, too, then drove away. You again passed your neighbour and reiterated your injunction to not tell the police.

20 Police who attended the vicinity of the shooting on 12 July 2016 found a single .25 calibre cartridge case in the gutter.

21 An autopsy of Mr Khan performed the following day established the cause of his death to be acute internal blood loss as a result of a gunshot wound to the chest. The pathologist extracted two .25 calibre rounds from Mr Khan's body: one from the left leg and the other from the lower right abdominal wall. The first projectile had entered the left knee and split the bone. The second had traversed the chest and abdomen, causing perforations to the heart, lung, stomach and small bowel.

22 On 13 July 2016, you and two associates entered the reception area of the Quest Melbourne Airport Hotel. A single room was booked from that date to 20 July 2016, the date upon which you had previously booked to travel to Turkey. You were there arrested on 15 July 2016.

23 At the hearing of your plea, Senior Counsel on your behalf submitted that your offending fell at the lower end of the range for the offence of manslaughter. Queen's Counsel for the Crown took issue with that description, submitting that your feud with Mr Rasooli was conducted outside the law and you over-reacted to the situation you faced on 12 July 2016 by firing the gun you habitually carried.

24 While such descriptors as 'lower end' or 'mid-range' are often a convenient short hand, the choice of one classification over another does not then automatically compute an established sentencing band or range for an offence of that characterisation. The sentencing exercise is at once more complex and nuanced than that. And, as is often noted, the offence of manslaughter by dangerous and unlawful act encompasses a broad spectrum of offending. In the circumstances of this case, I do not find it necessary to assign any such descriptor. Rather, I prefer to analyse the various issues which impact upon the assessment of the objective gravity of your offending and your moral culpability for it.

25 The factors may be summarised as follows. First, your perception of the threat posed to you (and your family) by Mr Rasooli and his associates. Second, your general response to that perception. Third, particularly, your acquisition of a firearm. Fourth, your response to 12 July 2016 situation. Fifth, your instruction to your neighbour not to tell the police. Sixth, your planned departure from Australia.

27 As I have already stated, I accept that your fear of Mr Rasooli was ongoing, genuine and reasonable. While the learned prosecutor is correct that you were not privy to the content of police intelligence reports concerning the danger you faced, the real issue was the objective basis of your perception.

28 You were keenly aware that Mr Rasooli blamed you for his shooting, as well as insisted that you owed him a monetary debt. The reality of your situation was made crystal clear when, in the same month as Mr Rasooli was shot, police officers warned you of the danger he posed. There was nothing that occurred between then and July 2016 that could or should have indicated to you that Mr Rasooli's animus had waned. Indeed, just the opposite. One example, as noted above, was his attendance at your mosque with a large number of associates shortly after you had returned to Melbourne in September 2015. Another is the 2016 telephone threat to your brother. Yet another was threats received by social media in June and July 2016. And, throughout the period, you repeatedly stated to your friends and your Imam that you feared being shot.

29 I accept that your response to the threat may generally be described as taking evasive action. You sought no confrontation. You spent a large amount of time away from Melbourne. You moved house. And you sought the intervention of your Imam in an attempt to quell the feud.

30 But, you did arm yourself with a gun. While that action may be 'defensive in nature', to use the phrase of your counsel, it was nonetheless illegal. By so doing, you made a choice that should you face a confrontational situation engineered by Mr Rasooli, you could engage on the terms established by him. That is, you chose to act outside the law and not within it.

31 Having said that, I accept that both that decision and your decision to use the gun on 12 July 2016 must be understood through the prism of your belief that you yourself faced a genuine, significant threat of being shot by Mr Rasooli and/or one of his associates.

32 On 12 July 2016 you were confronted outside your brother's house by two men. At least one, Mr Khan, the man you knew only as Hamza and only in the context of his association with Rasooli, was aggressive towards you. The evidence demonstrates that the heated altercation was initially verbal. I accept that the words reportedly heard by the witnesses are consistent with you telling those men to leave. The evidence also demonstrates that at the moment you fired your gun, Mr Khan was moving towards you.

33 There is no suggestion that either Mr Khan or Mr Rawani were armed. Having said that, your perception of immediate threat at that instant was steeped in the atmosphere of the preceding 12 months. You are a fit and strong man and, it was said on your behalf, not afraid of a physical fight. But you feared being shot, not beaten. Your use of the gun was both unlawful and dangerous, but I accept that you were aiming at the ground.

34 I also accept that you could not have known that you had seriously injured Mr Khan. You observed him, along with Mr Rawani, run, about 50 metres, to a parked car. And, as I have said, Mr Rawani himself did not realise that Mr Khan had been shot in the chest until he saw a spot of blood as he drove away.

35 Your counsel submitted that your ignorance of the seriousness of Mr Khan's injury gives colour to your adjuration to a witness not to tell the police. It was a comment occurring in the immediate aftermath of a very stressful situation and of a piece with Mr Rasooli's conduct in not reporting his own wounding to police. In short, part of the climate of fear in which you had lived. The prosecutor submitted that it demonstrated an ongoing willingness on your part to engage with Mr Rasooli outside the law.

36 Both are true. You did choose to conduct yourself without regard to the law with respect to the issues between you and Mr Rasooli. At the same time, I accept that it was a genuine, ongoing and reasonable fear that led you to make that choice. It was a regrettable decision and one that had tragic consequences for Rahat Khan and for you. But I accept that your injunction to your neighbour to not involve the police was not an attempt on your part to minimise what you had done.

37 You did lay low after the incident. But, given the history, that was not surprising. As I have already said, your planned departure for Turkey on 20 July 2016 predated the 12 July 2016 incident.

38 By your plea of guilty to manslaughter you accept that you killed Rahat Khan and you had no lawful justification for doing so. And, by acceptance of that plea, the Crown acknowledge that at the time you fired the weapon, you had no intention to kill or do really serious injury to Mr Khan, nor were you reckless as to that issue.

39 This is a most unusual case. I find that the circumstances outlined dictate that both the objective gravity of your offending and your moral culpability for it are reduced.

40 I have received Victim Impact Statements from the father, mother, sisters and brothers of Rahat Khan. The depth of sadness of his family is evident from the opening words of his father, '[m]y heart has been taken away from me.' The eloquence of their pain is affecting.

41 Mr Khan Senior speaks of his son who dreamed of playing in the AFL, but whose ambitions never clouded his respect, care and love for his parents and siblings. He speaks of a malaise that has settled over his family and a feeling of despair that he cannot make things right again. Mrs Khan speaks of the heaviness in her heart that her son, who tried hard to please his parents before anything and tried, always, to make her smile, is gone. Just thinking about him is devastating. And she is now constantly fearful and anxious about her other children.

42 The young lives of Rahat Khan's siblings now bear the scar of his death. One sister, just finished year 12, has no motivation for further study in the absence of her brother who was a role model and protector. She struggles to find the joy in moments of celebration. The other sister, just 12 years of age, is confused and upset, given to secret crying. Two brothers, aged 10 years and 9 years, miss the big brother that played with and looked after them.

43 In short, the family of Rahat Khan is shattered.

44 I turn to a consideration of your personal circumstances.

45 You were born on 24 April 1988. You were 28 at the time of the offence. You are now 30 years of age.

46 You are the younger of two sons born to your parents. Your father, the sole breadwinner of your family, was killed in a car accident when you were aged 10 years. Your mother then worked in a factory. She retired 10 years ago.

47 You attended school to the age of 15, but did not complete year 10. Immediately upon leaving school, you commenced working as a brickie's labourer for your older brother, who was then employed as a bricklayer. Within about a year your brother opened his own business and you worked for him as a bricklayer until you were about 20 to 21 years old. Work in a supermarket warehouse followed before you travelled to Turkey, where you stayed with relatives for about 18 months.

48 Aged 23, you returned to work for your brother. You did so until you were 26 years old, whereupon you became your mother's carer. That role ceased following the May 2016 shooting of Mr Rasooli as a result of you spending significant time overseas and your otherwise peripatetic lifestyle.

49 You commenced kickboxing aged 15. It was a sport in which you excelled. You have fought in professional bouts and, in 2014, rose to become the Victorian champion. Your interest in the sport led you to run fitness and training classes at the Hume Islamic Youth Centre. It also led you into contact people who operate within a criminal milieu, including Mr Rasooli.

50 You have a limited, but relevant prior criminal history for assault, affray and causing injury. It spans the period of your life when you were aged 21 to 25 years. It was submitted on your behalf that those Magistrates' Court appearances coincided with a time of youthful immaturity and when you regularly drank alcohol and occasionally used cannabis. Since the age of 25 you have abstained totally from alcohol and illicit drugs. You are still fit and continue to train in custody.

51 You have had one serious relationship in your life. You have hopes, upon release, of marrying and having children. You are seemingly close to your brother and his children. Upon release, your brother, now an established and successful builder, will employ you. You hope to re-engage in sport and encourage young people in your community towards fitness.

52 Your time in custody has been spent productively. You have attained a Certificate II in cleaning operations. You are currently engaged in a Learning, Literacy and Numeracy course and have applied to commence further courses, including in anger management and youth work. I note that your first year in custody was spent in protection which limited your access to such courses.

53 I have received a great many character references on your behalf. They speak of your generosity and kindness. They demonstrate a willingness on the part of many people in your community to support you upon your release.

54 There are a number of matters that are significantly mitigating of the sentence that I must pass.

55 The first is your plea of guilty. You were initially charged with murder. Had that charge remained you had some realistic prospect of acquittal. It is unnecessary to detail the history of those criminal proceedings, but I note that, through no fault of yours, they were lengthy and attended by an unusual degree of complexity. The matter resolved with your plea of guilty to manslaughter on 3 July 2018. I take into account the delay in the criminal process reaching that point.

56 In all the circumstances, I accept the submissions of both counsel that your plea should be construed as being early. Your plea has facilitated the course of justice, prevented community expense and avoided the trauma of a trial for both witnesses and Mr Khan's family. Your plea has great utilitarian value. And, given your legal position vis-à-vis the charge of murder, I accept that your plea is hugely demonstrative of your remorse and your prospects for rehabilitation.

57 I accept that you are genuinely remorseful for your actions. In response to reading the Victim Impact Statements of Mr Khan's parents, you have written a letter to them, apologising for your actions. At the same time you recognise that your apology will never return their son to them. And, with some degree of maturity, you express the hope that whatever schism exists in your community, your plea of guilty to the manslaughter of Rahat Khan will be one step towards peace and healing.

58 That maturity also leads me to conclude that your limited, but relevant prior criminal history, is not the most telling feature of your character nor the most important predictor of your prospects for rehabilitation. Those prior offences, whilst serious, were committed by a younger version of the man you are now; an immature young man lacking connection to his faith. I find your prospects for rehabilitation to be good and, accordingly, the weight I need to give to specific deterrence is reduced.

59 But, I must also consider general deterrence, denunciation and just punishment. The community should understand that your actions in discharging a firearm in close proximity to another person is denounced by the courts and will result in a substantial term of imprisonment. That penalty reflects that your unlawful and dangerous act took the life of another human being. And it recognises that the family of Rahat Khan will forever bear the sadness of his death at your hand.

60 I have been referred to a number of authorities to assist me with the range of sentences for a manslaughter such as this.[1] In so far as the offence of manslaughter permits, I have had regard to current sentencing practice.[2]

62 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 ('the Act') and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for 5 years. You must serve a minimum of 3 years before being eligible for parole.

63 I declare that you have already served 782 days of that sentence by way of pre-sentence detention.

64 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a sentence of 8 years with a non-parole period of 5 years.

65 I also make a disposal order in the terms sought by the Crown and an order under s 464ZF(2) of the Crimes Act 1958 with respect to the taking of a forensic sample.

[1] R v Cicekdag [2017] VSC 781; R v Walker & Maybus [2016] VSC 116; Maybus v The Queen [2017] VSCA 125; DPP v Power [2016] VSC 498; VA v The Queen [2011] VSCA 426.

[2] Sentencing Council, Sentencing Snapshot No. 199 - Manslaughter.