Uzun v The Queen [2015] VSCA 292

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 I will invite Priest JA to deliver the first judgment.

2 Following a trial in the County Court, the applicant was found guilty by a jury of aggravated burglary (charge 1); making a threat to kill (three charges - charges 2, 3 and 4); common assault (charge 5); contravening a family violence intervention order (charge 11); and reckless conduct endangering a person (two charges - charges 12 and 13). Acquittals were directed by the judge on two charges of common assault (charges 6 and 7), and the jury found the applicant not guilty of three charges of false imprisonment (charges 8, 9 and 10).

3 On 21 October 2014, the applicant was sentenced to a total effective sentence of 10 years' imprisonment, upon which the judge fixed a non-parole period of eight (8) years.

4 The applicant seeks leave to appeal against both conviction and sentence.

5 In my opinion, for the reasons that follow, both applications must be refused.

6 Before turning to a consideration of the applicant's grounds, it is necessary to outline the evidence at the trial.

At the time of the offending, 3 December 2013, the applicant and his wife, Sevgi Uzun, had been married for about 24 years, but had separated in November 2007. They have three children - a son, Cesim, who was aged 16 years at the time of the offences, who lived at home with his mother; a daughter, Aydan, who was aged 19 years, and returned home during the offences; and another daughter, Kadriye, aged in her early 20s, who lived elsewhere. A family violence intervention order prohibited the applicant from visiting Mrs Uzun's home.

7 Despite the existence of the intervention order, in the late afternoon of 3 December 2013 the applicant went to Mrs Uzun's home, and there committed a number of offences, including aggravated burglary, breach of a family violence intervention order, threatening to kill and common assault. Later, when trying to evade police capture, the applicant drove in such a way as to recklessly endanger persons.

8 Upon going to his wife's home (charge 11 - breaching a family violence intervention order), the applicant forced entry into the house and threatened his wife with a knife which he held against her throat (charge 1 - aggravated burglary). In his pocket was an imitation revolver which appeared genuine. When the applicant forced entry, only his wife and their youngest child, Cesim, were in the house. Aydan, their middle child, arrived home at a later stage. Mrs Uzun and Aydan tried to calm the applicant, who, according to the evidence of Mrs Uzun, was saying things like:

You can't escape from me. Even if you try I will find you and kill you and the kids one by one. I'm a leader and you should all listen to me. I want all control and I want you to be scared of me 24/7. You can't live in peace. I will then move onto your extended family and anyone who gets in my way. I will happily stop them. I have got all the strength that I need and everything will go by me. You will do what I tell you to do. The only way I will start killing people will be by killing you first. Nothing can stop me. The only law you have to listen to is my law and what I say. If you repeat any of what has been said tonight, I will kill you and then make my way through the kids.

9 The prosecution alleged that when he uttered these words, the applicant intended that Mrs Uzun would fear that he would carry out those threats against her, and against Aydan and Cesim (charges 2, 3 and 4 - threat to kill).

10 Later, Cesim woke up and came into the lounge room. Mrs Uzun had suggested that they go for a drive. The applicant then took out the imitation firearm and said:

You say we're going for a drive, if you think of going to a police station and having me caught again this is what I will do to you.

11 The applicant then indicated where the bullets go into the revolver, and demonstrated how he would kill them by pulling the trigger (charge 5 - common assault on Mrs Uzun). The imitation firearm was later found in the applicant's car with the hammer cocked.

12 They then went for a drive. Mrs Uzun drove with Cesim and Aydan in one car, while the applicant followed in another. (This incident founded the false imprisonment charges - charges 8, 9 and 10 - of which the applicant was acquitted.)

13 Whilst driving, Mrs Uzun asked Aydan to call her sister, Kadriye, and to tell her to call the police. When they returned home, the police arrived. The police saw the applicant driving very slowly. Sergeant Darren Ball and Acting Sergeant Bernie Jenkins pulled up next to the applicant's car in a police vehicle with the lights and siren activated. Another uniformed police officer ran to the applicant's car and banged on the rear passenger window. The applicant then accelerated away and turned left into Warrigal Road without stopping.

14 Sergeant Ball gave chase in the police vehicle, but had to wait for other vehicles to stop before turning. There were no cars between the applicant's car and the police car, but, despite the fact that the police vehicle was travelling in excess of 100 kilometres per hour, they were not gaining on the applicant. At the corner of Warrigal Road and Centre Road the applicant did not stop for a red light. His vehicle collided with a car travelling with the green light. Police did not observe brake lights on the applicant's car prior to the collision. The driver of the other car, Matthew Larson, tried to brake but was unable to avoid the collision. There were, fortunately, no serious injuries caused (charges 12, 13 and 14 - reckless conduct endangering persons, the police and Mr Larson).

15 The defence called no evidence at trial, but put the prosecution to its proof.

16 There is a single ground of appeal against conviction, which asserts that the trial judge 'erred in admitting tendency evidence sought to be adduced by the prosecution'.

17 As part of its case at trial, the prosecution sought to introduce tendency evidence. Following argument, the judge permitted the prosecution to do so. I will shortly return to the judge's ruling, but the following evidence was permitted to be adduced as a result.

18 Mrs Uzun gave evidence of three previous incidents involving the applicant. The first related to 5 February 2000, when the applicant got out of bed in an extremely angry state. Without explanation, he hit Mrs Uzun with a cushion and was abusive to the children. He also hit Mrs Uzun to the arms and legs with a wooden bar, pulled her hair, bashed her head against a wall and threatened to kill her. Some years later, on 11 November 2007, after the applicant and Mrs Uzun had argued, the applicant - in the presence of the children - threatened to kill Mrs Uzun with a fishing knife whilst holding her by her hair. Further, he tied her arms with dressing gown cord, tied her feet with electrical cord and bound her mouth with a nightie. The applicant then struck Mrs Uzun with an open fist so as to cause her injury. Mrs Uzun was tied up for approximately two hours. Finally, on 12 January 2012, the applicant knocked on the door of Mrs Uzun's house and threatened to break it down. He was in breach of an intervention order that prevented him coming within 200 metres of the house. When Mrs Uzun opened the door, the applicant pushed past her and climbed into the roof space. Due to their fear, Mrs Uzun and the children left the house.

19 Over objection, this evidence was introduced as tendency evidence. By a notice dated 26 September 2014, the prosecution had, pursuant to s 97(1) of the Evidence Act 2008 ('the Act'), given notice that it sought to lead evidence of tendency. As originally formulated, the notice set out that:

The tendency sought to be proved is the tendency of Tamer Uzun to act in a particular way, namely (i) to engage in conduct recklessly endangering police members; (ii) to make threats to kill family members; (iii) to assault family members; (iv) to falsely imprison family members; and (v) to contravene family violence orders.

20 In the course of debate, the prosecution conceded that it could not seek to rely on the tendency 'to engage in conduct recklessly endangering police members'.[1] Given the objection maintained by the defence, however, the judge was required to rule on the other evidence[2] embraced by the notice.[3]

21 Significantly, counsel for the applicant at trial conceded that the evidence possessed 'significant probative value to the point of being strikingly similar'. He maintained, however, that the probative value of the evidence was outweighed by its prejudicial effect.

22 Having looked to Velkoski[4] for guidance, the trial judge permitted evidence of the incidents of 5 February 2000, 11 November 2007 and 12 January 2012, to be introduced by the prosecution as tendency evidence. His Honour concluded that the evidence was tendency evidence within the meaning of s 97 of the Act; and, consistently with s 101(2), considered that the probative value of the evidence substantially outweighed any prejudicial effect that it might have on the applicant.

23 In this Court it was conceded - as it was before the trial judge - that the evidence sought to be introduced as tendency evidence bore relevant similarities to the charged conduct, but nonetheless it was contended that it was not relevant to any issue in the trial. Alternatively, it was submitted that its probative value was outweighed by its prejudicial effect.

24 Counsel for the respondent submitted that the issue of probative value, and therefore relevance, was conceded by the applicant's counsel before the trial judge. He clearly had conceded that the evidence had 'significant probative value to the point of being strikingly similar'. It was submitted that the applicant's counsel in this Court continued to concede 'significant probative value', but argued that the evidence is not 'relevant'. These two submissions, the respondent submitted, cannot stand together. The primary issue was whether the applicant had acted in the way alleged. Given that the question for the jury was conduct, the respondent submitted that the evidence of the applicant's tendency to behave in the manner alleged, especially against the same complainants, was highly relevant. The probative value of the evidence clearly outweighed any risk of unfair prejudice.

25 In my view, the respondent's submissions must be accepted.

26 Principles governing the admissibility of tendency reasoning under s 97 of the Act were formulated in Velkoski:[5]

In relation to tendency evidence, it remains necessary to identify and assess the strength of the features of the acts relied upon as supporting tendency reasoning. Odgers, in his Uniform Evidence Law in Victoria[6] sets out a list of features which include the following:

(i) the number of occasions upon which the particular conduct relied upon is said to have occurred;[7]

(ii) the time gap between those occasions;[8]

(iii) the degree of similarity between the conduct on those occasions;[9]

(iv) the degree of similarity of the circumstances in which that conduct took place;[10]

(v) whether the tendency evidence is disputed,[11] and

(vi) the issue to which the evidence is relevant.[12]

As to the last matter, it has been suggested that tendency evidence may have greater probative value in proving conduct than in identifying an offender.[13]

We have not included the relationship between offender and victims amongst the relevant operative features. Save where all the tendency evidence and charged acts relate to the same victim, the circumstance will be most unusual in which the relationship between the offender and the victims could by itself be sufficient to amount to tendency evidence. The exception may be where the nature of the relationship between the offender and the victims is so entirely remarkable and out of the ordinary (in which case the evidence would also support coincidence reasoning). But in the not so uncommon situations of parent and child or teacher and pupil, some other features of similarity must be present. Commonality of relationship between offender and victim will not ordinarily be sufficient.[14]

Neither tendency nor coincidence evidence requires proof, as a condition of admissibility, of 'striking similarity'. Nor should a trial judge ask whether it would be 'an affront to common sense' to withhold evidence of that kind from the jury. Such expressions, taken from the common law, are unduly restrictive when it comes to the construction of the relevant provisions of the Evidence Act.

Nonetheless, some cases may meet even that higher threshold test. In that event, the task for the trial judge is likely to be relatively straightforward. The evidence will certainly satisfy the requirements of ss 97 and 98. It will almost certainly also satisfy the requirements of s 101.

The features relied upon must in combination possess significant probative value which requires far more than 'mere relevance'. In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal 'underlying unity', a 'pattern of conduct', 'modus operandi', or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength.

27 Consistently with the principles laid down in Velkoski, the evidence impugned by the applicant met the necessary high threshold of admissibility.[15] Indeed, the conduct revealed by the tendency evidence was, as I have mentioned, conceded to be strikingly similar to the charged conduct. Given that the live issue for the jury was whether the charged conduct occurred, the evidence introduced as tendency evidence had the potential to shed considerable light on that issue, in circumstances where it could hardly be realistically contended that the probative value of the evidence did not substantially outweigh its prejudicial effect. Although it might be acknowledged that there will be some tendency evidence - particularly evidence concerning conduct of an unnatural character, or of conduct that arouses strong emotions or excites revulsion - which will not readily be amenable to judicial direction calculated to avoid its misuse, it may usually be assumed that a jury will comply with a trial judge's directions as to the proper use - and non-misuse - of such evidence.[16] Beyond its capacity to bear on the likelihood of the charged conduct having occurred, there was nothing in the tendency evidence in this case which was likely to provoke illegitimate prejudice in the mind of the jury. Plainly, the tendency evidence was amenable to judicial direction preventing the jury from misusing it.

28 There is nothing in the ground touching conviction.

29 The application for leave to appeal against conviction should be refused.

Sentence: a manifestly excessive or 'crushing' sentence?

30 With respect to sentence, the applicant's grounds are:

1. The sentence is manifestly excessive; and
2. The sentencing judge erred in failing to take into account the crushing effect of the sentence.

31 The applicant was sentenced to be imprisoned for six years on the charge of aggravated burglary[17] (charge 1); for three years on each charge of making a threat to kill[18] (charges 2, 3 and 4); for two years for common assault[19] (charge 5); for 18 months on the charge of contravening a family violence intervention order[20] (charge 11); and for one year and two years respectively on each charge of reckless conduct endangering a person[21] (charges 12 and 13). The sentence on charge 1 was the base sentence. Eight months each of the sentences on charges 2, 3, 4 and 13; six months on each of the sentences on charges 5 and 11; and four months of the sentence on charge 12; were ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of 10 years, upon which a non-parole period of eight years was fixed.

32 At first blush, the total effective sentence and non-parole period may appear to be stern. That first impression, however, dissipates when regard is had to the applicant's prior criminal history. That history reveals that the applicant has not been deterred by previous sanctions imposed upon him designed to curb his criminal behaviour. Thus, his antecedents include convictions in the Melbourne Magistrates' Court on 16 September 1994, on three charges of intentionally or recklessly causing injury, two charges of making a threat to kill and one charge of assault, for which he was sentenced to be imprisoned for six months. Next, in the County Court, on 15 September 1998, he was sentenced to be imprisoned for two years and three months on charges of reckless conduct endangering life, recklessly causing injury and assaulting police in the execution of duty. Two and a half years later, in the County Court on 25 January 2001, the applicant was sentenced to a total of five years and six months' imprisonment, with a non-parole period of three years and six months, on charges of recklessly causing serious injury, two charges of recklessly causing injury, two charges of making a threat to kill and one charge of unlawful assault. Further again, at the Melbourne Magistrates' Court on 3 May 2004, he was sentenced to an aggregate period of 180 days' imprisonment for making a threat to kill, four charges of unlawful assault and two charges of breaching an intervention order. Later still, on 13 March 2009, in the County Court, on charges of making a threat to kill, false imprisonment, intentionally causing injury and common assault, the applicant was sentenced to a total effective sentence of four years and four months' imprisonment, with a non-parole period of three years. Finally, on 8 June 2012, at the Melbourne Magistrates' Court, on two charges of breaching a family violence intervention order and criminal damage, he was sentenced to an aggregate sentence of four months' imprisonment. Hence, on at least five occasions, the applicant has been sentenced to imprisonment for crimes involving violence or breaches of intervention orders. I need not set out the circumstances of the prior convictions in any detail. It is fair to say, however, that most of the applicant's persistent prior offending involved serious violence perpetrated against his wife and children.

33 Of course, the applicant is not to be punished again for his previous offences, but he does not attract the leniency that might be afforded to a first offender. Further, his prior convictions, and responses to previous sentences, cast light on his prospects of rehabilitation. His failure to respond to previous sanctions demonstrates a marked need for specific deterrence to be given prominence, in an endeavour to curb the applicant's dangerous and anti-social propensities. The sentence imposed upon him was required to satisfy a need to protect the community.

34 In O'Brien and Gloster,[22] Charles JA observed:[23]

It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.

35 The applicant's moral culpability was high. As Batt JA said in Fuller-Cust:[24]

... Here, the applicant's antecedent criminal history shows that the instant offences were not uncharacteristic aberrations but rather that the applicant manifested in committing them a continuing attitude of disobedience to the law, so that retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Again, the antecedent criminal history illuminates the applicant's moral culpability in the instant case and shows dangerous propensity on his part and a need to impose condign punishment upon him.

36 Counsel for the applicant submitted that the sentence imposed is outside the available range because the sentencing judge gave undue emphasis to the applicant's prior offending. Further, it was submitted that the judge failed properly to consider the objective gravity of the offending. But for the aggravated burglary, so it was argued, the offences would have been dealt with in the Magistrates' Court. It was contended that there were no physical injuries; the offending took place over a short period of time on one day; and the applicant still has the support of his family.

37 It was further submitted that the sentencing judge failed properly to apply the principle of totality, and imposed a crushing sentence on the applicant. The applicant, so it was argued, is an 'older offender' and 'the sentences could result in the destruction of any reasonable expectation of a useful life after release'.

38 In my opinion, these submissions should be rejected.

39 The sentencing judge was correct to assess the applicant's risk of re-offending as being 'in the high if not extremely high range'. Insofar as his Honour thought the applicant to be 'insightless' and a 'recidivist' with 'no remorse whatsoever', and assessed his prospects of rehabilitation to be 'negligible', plainly these findings were open. Stern punishment was required to deter the applicant from further offending; and, quite obviously, his conduct merited very strong denunciation. Furthermore,

general deterrence is important in cases such as this of violence against domestic partners, so as to deter other like-minded individuals from similar offending.[25]

40 As I have observed, the applicant perpetrated the instant offending in disobedience of an intervention order which was designed to protect his wife and family. Those in the position of the applicant must understand that such conduct is wholly unacceptable. This Court's observations in Marrah[26] are apt:

The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakable message that male partners have no right to subject their female partners to threats of violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.

41 The applicant was born on 15 March 1965, and is now aged 50 years. It cannot realistically be advanced that the sentence passed upon him is 'crushing', in the sense that it extinguishes any reasonable prospect of a useful life after release.

42 In my opinion, the individual sentences on each charge, the orders for cumulation, the resulting total effective sentence and non-parole period were all well open in the proper exercise of the sentencing discretion.

43 Leave to appeal against sentence must be refused.

44 For the reasons given by Priest JA, I too would refuse each application for leave. I wish to add some brief additional comments of my own.

45 The first point is specific to Mr Uzun. I am addressing you directly, Mr Uzun. It is important that you understand, having listened to the hearing and heard your

counsel's arguments, why the sentence imposed on you is so heavy and why your challenge to the sentence has failed. Put simply, it is because of your repetition of violent offending against your family and your disobedience of an order of the court requiring you not to approach them. As you have heard here today, the more you persist with offending and the more often you disobey court orders, the higher the sentences will be. You can rest assured that, were you ever to offend again in the future, the sentences would be higher still.

46 As Priest JA has explained, you have been given a long sentence because your risk of reoffending is high and because you have been - and, as demonstrated by this offending, continue to be - a danger to your family and a person who has no regard for the law of Victoria.

47 But we are told by your counsel that your family want you back, despite all of the violence you have perpetrated against them. So far as that is concerned, your future is in your own hands. The persistence of your offending suggests that you will need advice, support, counselling and treatment of some kind, if you are going to be able to reach a point where you can resume a useful life with your family. I express the hope that the corrections system will give you access to such services, so that you can make a realistic effort to come to terms with what has occurred and will eventually be able to assure the parole authorities, and your family, that this will never happen again.

48 The second point is more general. Priest JA has referred to the importance of general deterrence and this Court's repeated statements that sentences imposed for family violence should be set at a level which will send a message to those - predominantly men - who might offend violently against domestic partners or former partners or family members.

49 Plainly enough, the sentences which the courts impose will not serve that purpose unless the sentences and the reasons for them are properly publicised. As

the Court said last year in DPP v Russell[27] (in relation to sentences for random street violence):

Obviously enough, ... a prison sentence can only have that wider deterrent effect if it is publicised across the community, especially amongst those ... who are at risk of offending in this way. Courts have neither the expertise nor the resources to engage in the kind of sustained community education which is necessary if general deterrence is to be a reality. That is a task for government.

After all, it is the responsibility of government to ensure public safety. And government must therefore take responsibility for communicating the deterrent message to those who need to hear it. That requires sustained effort and the commitment of substantial resources. Without that, the community simply will not derive the benefit - in greater public safety - which should flow from the painstaking work of sentencing judges and magistrates in this State. Self-evidently, if the message is not getting through no change in sentencing law can make the difference.

50 In view of the community concern about domestic violence and the importance of deterring it, those considerations are particularly pertinent in this area. A copy of the Court's decision in this matter will be forwarded to the Royal Commission on Family Violence for its consideration.

51 I agree with the reasons and conclusions of Priest JA and with the additional observations of the President.

[1] It should be noted that, because of the sense of horror that the evidence would likely engender in the jury, the prosecution did not seek to lead evidence of another event on 5 February 2000, during which the applicant hit and kicked his grandmother - in her own bedroom - while threatening to kill her. He then pulled the bed covers over his grandmother's head and slashed at them with a machete. Then, whilst threatening to kill his wife, he beat her with a piece of wood, before again punching and kicking his grandmother. After then throttling his grandmother, the applicant bound her feet with wire.

[2] The judge left in abeyance ruling on particular (v), that is, the applicant's tendency 'to contravene family violence orders'.

[3] By the time he came to charge the jury, the judge had refined the issue. He directed the jury that the evidence was led 'for the purpose of establishing that the accused had a tendency to act in a controlling, threatening and physically violent way towards his wife in the presence of his children using weapons to assault her, restraining her and threatening to kill her'.

[4] Velkoski v The Queen [2014] VSCA 121, [168]-[171] ('Velkoski').

[5] Velkoski, [166]-[171] (emphasis added; citation as in original).

[6] Odgers, [(Lawbook, 2nd ed, 2013)], 466-7.

[7] RHB [2011] VSCA 295, [20]. Cf GBF [2010] VSCA 135, [34].

[8] Cf Doyle [2014] NSWCCA 4, [92], where the offences were said to have been committed many years apart.

[9] Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, 321 [57], 324 [68].

[10] Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308; PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BP [2010] NSWCCA 303, [112]; GBF [2010] VSCA 135, [27].

[11] AE [2008] NSWCCA 52, [44].

[12] Bryant v The Queen [(2011) [2011] NSWCCA 26; 205 A Crim R 531, 545] [79].

[13] Odgers, [(Lawbook, 2nd ed, 2013)], 467.

[14] NAM [2010] VSCA 95, [8]. See also CGL [2010] VSCA 26; (2010) 24 VR 486; PNJ [2010] VSCA 88; (2010) 27 VR 146.

[15] See Semaan v The Queen (2013) 39 VR 503, [39]-[40] 511; Bauer (a pseudonym) v The Queen [2015] VSCA 55, [116].

[16] R v TJB [1998] 4 VR 621, 630-31 (Callaway JA).

[17] Crimes Act 1958, s 77. The maximum penalty is imprisonment for 25 years.

[18] Crimes Act 1958, s 20. The maximum penalty is imprisonment for 10 years.

[19] Common law. By s 320 of the Crimes Act 1958, the maximum penalty is imprisonment for 5 years.

[20] Family Violence Protection Act 2008, s 123A(2). Although in his reasons for sentence the sentencing judge indicated that the maximum penalty was two years' imprisonment - that is, the maximum penalty for a charge under s 123 - the applicant was in fact charged with an offence under s 123A(2), which attracts a maximum penalty of five years' imprisonment. Nothing, however, turns on this.

[21] Crimes Act 1958, s 23. The maximum penalty is imprisonment for 5 years.

[22] R v O'Brien and Gloster [1997] 2 VR 714.

[24] R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496, [58] 513-14.

[25] Filiz v The Queen [2014] VSCA 212, [21], [23] (Maxwell P and Redlich JA); DPP v Meyers [2014] VSCA 314, [45]-[46] (Maxwell P, Redlich and Osborn JJA).

[26] Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA).

[27] [2014] VSCA 308 [5]-[6].