Bayram v R

Case [2012] VSCA 6


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0024  

OMER BAYRAM Appellant
v
THE QUEEN Respondent

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JUDGES WARREN CJ, ASHLEY and HARPER JJA
WHERE HELD MELBOURNE
DATE OF HEARING 27 October 2011
DATE OF JUDGMENT 31 January 2012
MEDIUM NEUTRAL CITATION [2012] VSCA 6 (Revision 1, 9 February 2012)
JUDGMENT APPEALED FROM R v Bayram [2011] VSC 10

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CRIMINAL LAW – Sentencing – Appeal – Appellant confessed to murdering wife during dispute – Appellant sentenced to 19 years’ imprisonment with non-parole period of 16 years – Whether sentencing judge erred by characterising murder as ‘a relatively serious form of murder’ – Counsel failed to properly raise appellant’s motivation for killing wife – Sentence imposed excessive – Appeal allowed – Appellant re-sentenced to 16 years and 6 months’ imprisonment with non-parole period of 13 years and 6 months

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APPEARANCES: COUNSEL SOLICITORS
For the Appellant Mr P J Matthews Andrew George
For the Crown Mr J D McArdle QC with
Mr P J Doyle
Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

  1. The appellant entered a plea of guilty to one count of murder of his wife. He was sentenced to nineteen years’ imprisonment with a non-parole period of sixteen years’ imprisonment. The learned sentencing judge indicated pursuant to s 6AAA of the Sentencing Act 1991 that but for the appellant’s plea of guilty she would have imposed a sentence of twenty two years’ imprisonment with a non-parole period of eighteen years’ imprisonment.

  1. The appellant appeals on two grounds, first, manifest excess, secondly, mischaracterisation of the offence.  I would allow the appeal.  My reasons follow.

Background

  1. The appellant murdered the deceased on 1 February 2010.  At that time the deceased was 50 years old and the appellant was 61 years old.  They had been married for about 27 years but were living separately in the same family home with their two adult children who were in their early twenties.  From February 2009, the appellant and the deceased had lived in separate bedrooms, prepared separate meals, watched television in separate rooms, rarely spoke, and when they did speak, there was unpleasantness.

  1. The appellant was born in Cyprus and emigrated to Australia in 1972.  He returned to Cyprus in 1976 and then came back to Australia in 1982.   He married the deceased in about 1983 following a family arrangement.  He commenced work with a tyre manufacturer and stayed working there for 26 years until he was retrenched.

  1. In April 2009, the appellant went overseas.  Before he did so, the deceased informed him that she wished for a divorce.  The appellant offered her a sum of $250,000 in full settlement of her potential entitlement under the Family Law Act 1975 (Cth), which she rejected. Family Court proceedings commenced in consequence of which the appellant undertook not to dispose of the family assets.

The offending

  1. On the morning of 1 February 2010, sometime after 7.30 am, an argument occurred between the appellant and the deceased at their home in the…

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Bayram v R [2012] VSCA 6
Case
[2012] VSCA 6
Decision Date

CaseChat Overview and Summary

The appellant, Bayram, appealed against his sentence for the murder of his wife, arguing that the sentencing judge had erred in characterising the murder as a relatively serious form of murder and that his counsel had failed to properly raise his motivation for killing his wife. The case was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge had erred in the characterisation of the murder and if the sentence imposed was excessive.

The court found that the sentencing judge had indeed erred in characterising the murder as a relatively serious form of murder. The court held that the appellant's motivation for killing his wife, which was not adequately presented to the sentencing judge, played a significant role in the circumstances of the murder. The court found that the appellant’s actions were influenced by a temporary loss of self-control due to a severe and protracted dispute with his wife, which mitigated the severity of the crime. Consequently, the court held that the sentence imposed was excessive and allowed the appeal. The court re-sentenced the appellant to 16 years and 6 months’ imprisonment, with a non-parole period of 13 years and 6 months.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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