Director of Public Prosecutions v Gorgulu

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0100

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
UMIT GORGULU	Respondent

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JUDGES:	NIALL, T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2023
DATE OF JUDGMENT:	9 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 140
JUDGMENT APPEALED FROM:	[2022] VSC 391 (Fox J)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Respondent set victim alight – Respondent and victim friends – Whether aggravating feature of violence in intimate relationship extends to close friendship – Friendship a broad concept without clearly defined boundaries – Extending category of trust risks diluting significance attaching to other clearly established relationships.

CRIMINAL LAW – Appeal – Sentence – Manifest inadequacy – Intentionally causing serious injury – 10 years’ imprisonment with non-parole period of 7 years – Whether individual sentence and non-parole period manifestly inadequate – Objective gravity of offending extremely serious – Moral culpability extremely high – Factors in mitigation far from compelling – Comparison with comparable cases shows very substantial period of imprisonment required – Instance towards upper end of range of seriousness for this offence – Appeal allowed – Resentenced to 13 years’ imprisonment with non-parole period of 10 years.

R v Kilic (2016) 259 CLR 256; Gencev v The Queen [2021] VSCA 188, considered.

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Counsel
Appellant:		Mr B Kissane KC with Mr G Buchhorn
Respondent:		Mr DA Dann KC with Mr M McGrath
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Marshall Jovanovska Ralph

NIALL JA
T FORREST JA
OSBORN JA:

Following a trial before Fox J and a jury, the respondent was convicted of a single charge of intentionally causing serious injury.[1] Following a plea in mitigation of sentence, the respondent was sentenced to a term of imprisonment of 10 years and a non-parole period of 7 years was set. From that sentence, the Director of Public Prosecutions appeals.
[1]The respondent was acquitted of an alternative charge of attempted murder.
Although it will be necessary to refer to the details of the offence and the circumstances of the respondent, the barest outline of the offence shows immediately that this was very grave offending. The respondent and the victim, Kevin Taplin, were friends. Mr Taplin drove with the respondent from Portland to Hamilton in Mr Taplin’s utility vehicle, and during the trip the respondent became enraged. Mr Taplin pulled over and the respondent left the vehicle. Mr Taplin drove on to complete his trip but later returned to collect the respondent but the respondent refused to get in the vehicle and instead secured a ride from a passing motorist to Hamilton. Sometime later the respondent and Mr Taplin reunited in Hamilton. The respondent threatened to kill the victim and repeatedly punched him to the head. When it was time to leave and Mr Taplin attempted to drive off, the respondent tried to prevent him. With the vehicle moving at walking pace, the respondent hung onto the driver’s side of the vehicle which had the door open. When the vehicle came to a stop, the respondent grabbed a full five litre tin of petrol from the rear tray of the utility, doused Mr Taplin and the interior of the vehicle with approximately two litres of its contents as Mr Taplin was sitting defenceless in the driver’s seat, produced a cigarette lighter and set fire to the fuel and Mr Taplin. Mr Taplin suffered horrendous burns.
The Director appeals on two grounds. The first contends that the sentence is manifestly inadequate. The second contends that the judge erred in not treating the friendship between the applicant and Mr Taplin as giving rise to a relationship of trust, the breach of which was an aggravating feature.
The judge’s comprehensive reasons for sentence are exemplary. The reasons recite all of the relevant matters traversed on the plea, explain the path of reasoning and contain no error. We are however driven to the conclusion that the sentence imposed is manifestly inadequate given the gravity of the offending, and for that reason, the appeal must be allowed with respect to ground one and the respondent resentenced.

The offending

On 18 April 2019, Mr Taplin and the respondent drove to Hamilton to collect a motorbike belonging to Mr Taplin. Mr Taplin drove and the respondent sat in the front passenger seat of Mr Taplin’s utility vehicle. About 10 km before reaching Hamilton, the respondent threw his own phone out the window and became enraged. Mr Taplin pulled over, the respondent alighted and Mr Taplin resumed his journey. When he got to Hamilton, a friend, Fiona Dunn, who was to assist with collecting the motorbike, was not ready so Mr Taplin drove back to see if he could collect the respondent. When he got there, the respondent abused him and attempted unsuccessfully to grab the car keys. Mr Taplin again drove off.
The respondent hitchhiked to Hamilton and was picked up by a passing motorist, Ms Hughes. During that trip, the respondent became angry, upset and agitated and told her that he would burn Mr Taplin’s bike and ‘fuck him up’. Ms Hughes left the respondent near the KFC restaurant (‘KFC’) in Hamilton and Mr Taplin and Ms Dunn came to collect him in Ms Dunn’s car. The respondent got in the back seat and was yelling and screaming at Mr Taplin who was seated in the passenger seat. The respondent threatened to kill Mr Taplin and repeatedly punched him in the head. They returned to Ms Dunn’s house in Hamilton.
Once they were back at Ms Dunn’s house, Mr Taplin wanted to leave and got into his utility. As he tried to drive away the respondent took steps to stop him while yelling abuse. Mr Taplin drove off at a walking pace while the respondent hung on to the driver’s side door, which was open.
Mr Taplin’s vehicle came to a stop at a reserve at the end of the street. The respondent grabbed a full five litre tin of petrol from the rear tray of the utility, which happened to be there by chance, and threw approximately two litres of fuel over Mr Taplin and the interior of the cabin. The respondent then produced a cigarette lighter and ignited the flame of the lighter, setting fire to both the fuel and Mr Taplin.
The judge noted that, having regard to the verdict, the jury must have rejected the respondent’s explanation that the fire was an accident and that he produced the lighter to scare Mr Taplin but did not intend to ignite the fuel.[2]
[2]An issue at trial was whether the respondent had thrown fuel deliberately at Mr Taplin or on the roof of the utility, with the result that some fuel also spilled onto the victim. See R v Gorgulu [2022] VSC 391, [6]–[7] (Fox J) (‘Reasons’).
Mr Taplin was taken to the Hamilton Hospital and then airlifted to the Alfred Hospital. He spent two or three weeks in an induced coma. He experienced multiple burns to his head and neck region, chest, right upper limb and left hand. There was also damage to his lungs and eyes. He had prolonged respiratory failure requiring intubation for almost three weeks. He underwent numerous treatments, skin grafts, surgeries and rehabilitation. Mr Taplin was moved from the Alfred Hospital to the Caulfield Rehabilitation Hospital. He was hospitalised from 19 April 2019 to 6 June 2019. Physically, he has been left with scarring and residual lung damage.
The judge described Mr Taplin’s injuries as ‘horrific and life-threatening’. As the judge noted, ‘fortunately he has made a good recovery, and the long-term effects are not as severe as they might have been’.[3]
[3]Ibid [36].

The reasons for sentence

In sentencing the respondent, the judge took into account the respondent’s personal circumstances. He was born in Turkey. His father physically abused his mother, and that marriage ended in divorce. The respondent followed his father to Australia in 2000, when he was 18 years old. The respondent married when he was 22, and the marriage produced one child, a daughter who was 16 years old at the time of sentence. The marriage ended after the respondent’s wife left him for another relationship leaving the respondent struggling with depression, anxiety and shame as a result. He hadn’t seen his daughter in ten years due to a family violence intervention order.[4]
[4]Ibid [13]–[15].
The respondent completed high school in Turkey. He has no formal training qualifications or higher education. Initially, he worked in a kebab shop, then received on-the-job training as a bricklayer. He worked in the construction industry until the breakdown of his marriage in 2010 and has worked very little since. At that time, he started using cannabis, and became a regulate consumer of methylamphetamine.[5]
[5]Ibid [14], [16].
As the judge’s reasons record, a psychological report tendered on the plea and the respondent’s criminal record both reveal the respondent’s ‘ongoing and unresolved problem with anger and anger management’:[6]
(a)As to the former, the judge noted the psychologist’s opinion that the respondent has a low average IQ, impaired capacity for generally good judgment, lacked insight into his general psychological functioning and offending behaviour including ‘anger issues’, and met the DSM-5 criteria for moderate stimulant use disorder (in remission) and anti-social personality disorder;[7]
(b)As to his criminal record, the respondent has a criminal history commencing in 2004 with charges of theft. Between 2004 and 2012 there were number of court appearances for driving whilst suspended, breaching a suspended sentence and an intensive correction order, contravening a family violence intervention order, making a threat to kill and other driving offences. Between 2012 and 2017 there were four further court appearances for charges including possessing drugs of dependence, possessing a controlled weapon, contravening a family violence intervention order, contravening a community correction order, criminal damage, unlawful assault and threatening to destroy or damage property. The sentences imposed on the respondent included two short periods of imprisonment in 2012 (3 months) and 2016 (1 month).[8]
[6]Ibid [20].
[7]Ibid [17].
[8]Ibid [21].
In respect of the offending the subject of the appeal, at the arraignment the respondent pleaded not guilty to two charges being attempted murder and causing serious injury intentionally. He had previously indicated he was prepared to plead guilty to recklessly causing serious injury but did not do so at the arraignment. The judge noted that the fact that he offered to plead to a lesser offence, and that he was acquitted on the more serious charge of attempted murder, did not alter or reduce his moral culpability.[9] Although the judge accepted that the respondent ‘was immediately and sincerely contrite and apologetic for the harm [he] had caused’, this was not an expression of genuine remorse but was nevertheless taken into account in favour of the respondent.[10]
[9]Ibid [19].
[10]Ibid [20].
The judge regarded the respondent’s prospects of rehabilitation as ‘somewhere between reasonable and good’.[11] In making that assessment, the judge took into account steps taken by the respondent to engage in rehabilitative programs in prison, some familial support, and a willingness to engage in treatment including for anger management.[12] Notwithstanding this favourable assessment, the judge considered that specific deterrence still had relevance to the respondent given his criminal history.[13]
[11]Ibid [26].
[12]Ibid [25].
[13]Ibid [26].
The judge also took into account the effects of the pandemic and delay in finalising the charges.[14]
[14]Ibid [22]–[23].
An important aspect of the sentence concerned the judge’s assessment of the objective gravity of the offending. The judge concluded that ‘[d]deliberately setting fire to an innocent person is a serious example of intentionally causing serious injury’.[15]
[15]Ibid [36].
The judge accepted that the offending was spontaneous and unplanned.[16] The earlier violence and threats made by the respondent before the offence were uncharged acts which the judge considered were part of the overall circumstances and aggravating to some small extent.[17]
[16]Ibid [32].
[17]Ibid [34].
There was some debate on the plea about the relevance of the decision of the High Court in R v Kilic.[18] The parties disagreed on the similarities between this case and Kilic: the prosecutor said the two had a number of similarities and the outcome was relevant, the respondent submitted that this was a less serious example of offending than in Kilic. The judge was of the view that the offending in Kilic was objectively more serious: it arose in the setting of an intimate relationship and involved pouring fuel over a pregnant partner and setting her on fire.[19] We shall return to Kilic later in these reasons.
[18](2016) 259 CLR 256; [2016] HCA 48 (‘Kilic’).
[19]Reasons, [33].
The prosecutor had submitted that the friendship between the respondent and Mr Taplin placed the respondent in a relationship of trust and that the breach of this trust was an aggravating feature of the offending. The judge rejected that submission. Her Honour said that the relationship was not an aggravating feature, observing that not every fact relevant to sentence is either aggravating or mitigating.[20] The judge concluded that the prior friendship formed part of the overall circumstances of the offending, and explained why one of the impacts on Mr Taplin is a loss of the ability to trust people, because he had trusted the respondent as a friend.[21]
[20]Ibid [35], citing Weininger v The Queen (2003) 212 CLR 629, 637 [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2003] HCA 14.
[21]Reasons, [35].

Ground 2

Ground 2 is as follows:
The learned sentencing judge erred by not treating the breach of trust stemming from the close relationship between the respondent and the victim as aggravating.
As formulated, ground 2 alleges a specific error, however on the hearing of the appeal, it was principally argued as an aspect of manifest inadequacy. The Director submits that the principle that violence committed in an intimate relationship involves an aggravating breach of trust should be extended to ‘close friends’. The Director refers to a passage in Suleman v The Queen[22] as summarising the principle that a position of trust may exist depending on the nature of the relationship between an offender and victim:
This aggravating factor is not made out simply because the victim trusted the offender for some reason or other, such as because of the offender’s standing in the community or he appeared to be a successful businessman. Nor is it made out because the persons with whom the offender dealt were ‘commercially naïve people’. The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to ‘a position of trust’. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. The position of trust may reside in only one of the persons, such as between parent and child. But there may be situations where each stands in a position of trust to the other. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.[23]
[22][2009] NSWCCA 70.
[23]Ibid [22] (Howie J, McClellan CJ at CL and Hislop J agreeing).
The ground cannot be upheld and the judge’s treatment of the relationship was correct. The central thrust of the submission is that a close friendship per se is a relationship of trust and, when breached by violent offending, is a specific aggravating feature. Friendship is not a relationship that the common law treats as giving rise to obligations and mutual duties. Friendship is a broad concept that does not have clearly defined boundaries. Nor is it possible to identify duties that are imposed by the law on one party to look after, care or assume responsibility for the other. No doubt the mutual bonds of affection and goodwill that inhere in a friendship often give rise to feelings of obligation and care but the nature of friendships are so diverse and the features infinitely variable that it is simply not possible to impose any categorical rule in relation to them.
Further, extending the category of trust for the purpose of sentencing to friendships risks diluting the significance that attaches to other clearly established relationships such as that of parent, carer, employer or teacher.
The judge did not ignore the subsisting relationship. From the perspective of Mr Taplin the fact that he was so horribly injured by a person he regarded as a friend was significant because it resulted in him losing trust in people. This was an aspect of the impact of the offending and plainly a matter to be taken into account.[24] The judge did so.[25]
[24]Sentencing Act1991, s 5(2)(daa).
[25]Reasons, [12], [35].
Equally, the fact of the relationship was an important factor in explaining how the offending came about. It was because of the friendship that Mr Taplin returned to collect the respondent from the side of the road, and to pick him up from the KFC. Mr Taplin approached the respondent, and put himself in harm’s way, because of his friendship. Someone without that relationship would have avoided the respondent given his aggression and demeanour. The relationship made Mr Taplin vulnerable and explained how he came to be assaulted.
It was an important part of the backdrop to what the judge regarded as the most aggravating feature of the applicant’s conduct in the lead up to the offence namely preventing ‘Mr Taplin from leaving, in circumstances where he had not responded to [the respondent’s] violence, was in his own vehicle and just wanted to get away’.[26] The friendship between the two men also highlighted that Mr Taplin was entirely innocent and acting favourably towards the respondent.
[26]Ibid [34].
In our view, the judge did not misunderstand the significance of their relationship. Her Honour observed correctly that it formed part of the overall circumstances of this offending.[27]
[27]Ibid [35].
There is no error and ground 2 must fail.

Ground 1: manifest inadequacy

Ground one is as follows:
The individual sentence and the non-parole period imposed are manifestly inadequate.

The parties’ submissions

The Director submits that the respondent’s offending unquestionably represents a very serious example of this kind of offence. Factors on which the Director relies for this submission include the offending being unprovoked and committed in public; the offending involving several deliberate steps; the respondent’s weapon of choice being fire; and Mr Taplin being in a vulnerable position during the offending.
The Director submits that the respondent’s moral culpability is high, having deliberately employed particularly abhorrent means with the specific intent to inflict serious injury.
Even accounting for matters advanced in mitigation, the Director submits that the individual sentence of 10 years’ imprisonment and the non-parole period of 7 years fell egregiously short of the range of sentences reasonably available in all the circumstances of this case.
The respondent submits that the judge was alive to each of the factors that could legitimately be said to aggravate the seriousness of the respondent’s offending. The respondent submits that there were a number of mitigating factors, including the respondent demonstrating genuine sorrow and contrition, the respondent’s pre-sentence detention coinciding with the COVID-19 pandemic and the delay of over three years between the respondent’s arrest and sentence, for most of which the respondent had a charge of attempted murder hanging over his head, and during which the respondent had taken steps towards his rehabilitation.

The respondent submits that the judge was entitled to find that the offending in Kilic was an objectively more serious example of the offence and that a number of seriously aggravating features in Kilic were absent in the respondent’s case.
The respondent submits that the judge engaged in a careful and thorough exercise in balancing all the relevant sentencing factors in this case, having regard to which it cannot be said the sentence imposed was wholly outside the permissible range of sentences reasonably available in the particular circumstances of this case.

Decision

In order to succeed the Director must establish that the sentence imposed is manifestly inadequate. In a regularly cited passage, this Court in Director of Public Prosecutions v Karazisis explained the position this way:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[28]
[28](2010) 31 VR 634; [2010] VSCA 350, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (citations omitted).
It is convenient to start with an examination of the objective gravity of the offending.
In his reasons for sentence in R v Alipek, Nettle J said that ‘[i]t is difficult to imagine harm more serious than that which might be caused by tipping petrol over a human being and setting it alight’.[29] In Gencev v The Queen, this Court described ‘actually pouring petrol over someone, then setting them alight and then pouring more petrol over them’ as an ‘evil and cruel act’.[30]
[29][2004] VSC 206, [31] (Nettle J).
[30][2021] VSCA 188, [41] (Maxwell P and Sifris JA) (‘Gencev’).
Where an offence involves pouring petrol over a person and setting them alight, both the nature of the act and the consequences will inevitably be serious. Pouring petrol over a person places them in a situation of the most horrendous vulnerability and terror: the risk of ignition is obvious and the person has little opportunity to protect themselves. Given the risk of igniting vapour, even keeping some physical distance from the assailant may not ameliorate the risk. In this case, there was no opportunity to escape; Mr Taplin was trapped in the driver’s seat as the petrol was thrown onto him.
Importantly, as it did in this case, the act of ignition will often, perhaps usually, involve a separate and discrete act. Although no doubt the duration of the gap between dousing Mr Taplin with petrol and the reaching for and striking the lighter was short, nevertheless it provided some time for pause. The respondent was plainly angry and not in control of his temper but there was no reason for him to attack his friend in this grievous way and no reason for him to continue when he knew that Mr Taplin was drenched with fuel.
The consequences of the offending were also extremely grave. They involved extensive burns that were extremely painful, life threatening and scarring. They have left Mr Taplin with residual lung damage and ongoing respiratory issues. There was a protracted period of hospitalisation. The psychological impact has been, and continues to be, significant.
It is plain that the objective gravity of the offending was extremely serious.
The moral culpability of the respondent was also extremely high. He was angry and has a history of anger management issues but his judgment was not impaired. His inability to deal with his anger had manifested itself before in criminal behaviour and would or ought to have been understood by the respondent, but he had taken inadequate steps to address it. The entirely unprovoked attack was inflicted on a person who had attempted to assist the respondent and bore him no ill will.
The respondent’s blameworthiness was not moderated to any degree by any impairment, he exhibited no genuine remorse and having regard to his criminal history, specific deterrence remained relevant. The judge took into account some degree of regret at the harm caused though there has been no acceptance of responsibility by the respondent. Delay and the pandemic were also moderating factors.
Overall, the factors in mitigation were far from compelling.
In the circumstances, it was necessary to give substantial weight to denunciation, just punishment, general and specific deterrence and protection of the community. In our view, the sentence imposed is manifestly inadequate to achieve these objectives.
A comparison with comparable cases also shows that a very substantial period of imprisonment was required.
In Kilic, the High Court reinstated a sentence imposed at first instance after a plea of guilty of 14 years’ imprisonment for intentionally causing serious injury by throwing flammable liquid over and then igniting a pregnant intimate partner. In the course of its reasons, the High Court deprecated the use of the phrase ‘worst category’ of the offence on the basis that it is ‘potentially confusing… and likely to lead to error’, cautioned that its use should be avoided, and observed that where it is used it describes an instance of the offence that is so grave that it warrants the imposition of the maximum prescribed term.[31]
[31]Kilic (2016) 259 CLR 256, 270 [17]–[30] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.
The Court made two points of present relevance. First, there were to that point too few cases of intentionally causing serious injury by fire to discern any pattern.[32] Since then there have been few other examples. Second, an offence of intentionally causing serious injury which is towards the upper end of the range of seriousness is liable to attract a sentence upwards of 15 years’ imprisonment.[33] In our opinion, this offending is aptly described as being towards the upper end of the range of seriousness.
[32]Ibid [25].
[33]Ibid [31].
In Gencev,[34] this Court reduced a sentence of 13 years’ imprisonment for an offence involving setting a person on fire using petrol. There were two co-offenders. The appellant Gencev stood guard while the other offender, Newman, poured fuel over the victim and set him alight.[35] The appeal brought by Gencev succeeded on the ground of parity. Newman, who was not a party to the appeal, had been sentenced to 14 years’ imprisonment. There is nothing in the reasons of this Court that suggested that the sentence on Newman, who had poured the fuel, was excessive and it remained a point of reference on the resentence of Gencev.
[34][2021] VSCA 188.
[35]Both Gencev and Newman pleaded guilty.
Kilic and Gencev provide some context for considering this appeal. Neither provides a benchmark or precedent and it is unnecessary to attempt a ledger of differences and similarities. We do not disagree with the judge’s assessment that Kilic was an objectively more serious example of the crime. That said, the present case remains a grave example of the offence, and Kilic and Gencev provide some support for the Director’s appeal.
Balancing these matters, we are of the view that the sentence imposed failed adequately to reflect the gravity of the offending and ground 1 is made out.
The appeal must be allowed and the respondent re-sentenced. The respondent will be sentenced to a term of imprisonment of 13 years, with a non-parole period of 10 years.
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[2023] VSCA 140

9 June 2023