Acar v The Queen - [2012] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0163

RAMAZAN ACAR	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 January 2012
DATE OF JUDGMENT	2 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 8
JUDGMENT APPEALED FROM	R v Acar [2011] VSC 310 (Curtain J)

APPLICATION FOR LEAVE TO APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal – Murder of infant daughter by father – Plea of guilty – Sentence of life imprisonment with non-parole period of 33 years – Whether head sentence and non-parole period manifestly excessive – Whether judge erred in failing to find causal connection between offending and personality disorder – Application refused

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr GF Meredith	Leanne Warren & Associates
For the Crown	Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The applicant, Ramazan Acar, pleaded guilty to the murder of his daughter, Yazmina. She was, at the time, just six days short of her third birthday. The applicant was sentenced to life imprisonment. A non-parole period of 33 years was fixed. He now seeks leave to appeal against sentence.

The applicant contends that both the head sentence and minimum term are manifestly excessive. He further contends that the sentencing judge erred in her application of the principles in R v Verdins[1] by failing to find a causal connection between a personality disorder from which he was then suffering, and his offending.
[1](2007) 16 VR 269 (‘Verdins’).

The background facts were as follows. The applicant met the child’s mother, Rachelle D’Argent, when they were both in their mid-teens. Their relationship lasted some eight years. It had been a difficult one, marked by the applicant’s jealousy, possessiveness, violence and, it appears, drug use.

Yazmina was born in November 2007. The applicant and Ms D’Argent were then both aged 20. They finally separated in September 2010. Shortly afterwards, Ms D’Argent obtained an intervention order against the applicant. There was evidence that he had threatened her, and that she was frightened that he would harm both her and their daughter.

Within a week or so, the applicant began telephoning Ms D’Argent, in clear breach of the intervention order. When spoken to by police, he told them that he was motivated by a desire to see Yazmina.

Further breaches of the order were then said to have occurred. Ms D’Argent reported these to the police. She subsequently denied the applicant access to their daughter. Nonetheless, he continued to harass her. He told her, at one point, that he believed that he was going to be imprisoned for some traffic offences, and that he

wanted to see Yazmina before that occurred. Ms D’Argent indicated that he could see her, but only on a fortnightly basis.

In November 2010, Ms D’Argent allowed the applicant to have Yazmina stay with him overnight at the family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acar v The Queen

Details

AGLC: Acar v The Queen [2012] VSCA 8
Case: [2012] VSCA 8
Decision Date: 2 February 2012

CaseChat Overview and Summary

The appellant, Acar, appealed against the sentence imposed for the murder of his infant daughter, for which he had entered a plea of guilty. The High Court of Australia was tasked with determining whether the sentence of life imprisonment with a non-parole period of 33 years was manifestly excessive and whether the trial judge erred in failing to find a causal connection between the offending and the appellant’s personality disorder. The appellant argued that the sentence was manifestly excessive and that the trial judge failed to consider the causal link between his personality disorder and the commission of the offence, which should have resulted in a reduced sentence.

The court examined whether the sentence imposed was manifestly excessive, considering the gravity of the offence and the need for general deterrence and denunciation. It also assessed whether the trial judge erred by not recognising the causal connection between the appellant’s personality disorder and the offence. The court noted that while the appellant had a personality disorder, it did not consider this factor as significantly mitigating the severity of the crime. The court emphasised the importance of the trial judge’s discretion in sentencing and the need to balance the circumstances of the offender and the nature of the crime.

In dismissing the appeal, the court found that the sentence was not manifestly excessive, given the heinous nature of the crime and the need to uphold public confidence in the criminal justice system. It also determined that the trial judge did not err in failing to find a causal connection between the offending and the appellant’s personality disorder, as this did not sufficiently mitigate the gravity of the offence. The court concluded that the sentence was appropriate and that the appeal should be refused. Consequently, the appellant's application for leave to appeal was denied, and the original sentence was upheld.

Orders