Director of Public Prosecutions v Gurkan

[2025] VCC 404

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR-21-00441

DIRECTOR OF PUBLIC PROSECUTIONS

v

HALIS GURKAN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2024, 11 February & 2 April 2025
DATE OF SENTENCE:	2 April 2025
CASE MAY BE CITED AS:	DPP v Gurkan
MEDIUM NEUTRAL CITATION:	[2025] VCC 404

REASONS FOR SENTENCE

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Subject:Trial - sentencing

Catchwords:      Causing serious injury recklessly

Legislation Cited:    

Cases Cited:Booker v The Queen [2022] VSCA 150
DPP v Booker & Anor [2021] VCC 1957

Sentence:8 years' imprisonment, non-parole period 5 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Barron	Office of Public Prosecutions
For the Accused	Mr J. Lavery	KPT Defence Lawyers

HIS HONOUR: 

1Halis Gurkan, on 10 November 2023 you were found guilty by a jury in this court of recklessly causing serious injury to your victim outside his home in Sunbury in the early hours of 8 February 2020.  The maximum penalty for that offence is imprisonment for 15 years.

2You have admitted a prior criminal history recording convictions for some motoring offences of little or no relevance to sentencing for this matter.  Your only prior conviction that I treat as having any relevance to the determination of your sentence is for an offence of using a prohibited weapon without exemption or approval, for which you were convicted at the Melbourne Magistrates Court on 2 July 2014 and fined $750.

3At the time of this offending you were aged 31 years and living in Donnybrook on the northern outskirts of Melbourne.  You are now aged 36.

4The prosecution case against you at trial relied substantially upon the testimony one of your accomplices, a female friend of yours named Lee Haitsma, otherwise known as Lee Underwood.

5The essence of the account she gave to the jury, interspersed with evidence from other sources, was as follows.

6Haitsma met you in 2016 when she was living near Echuca.  She knew you as Alex.

7In early 2020 Haitsma, who was then aged 40 years, was living in Long Gully in Bendigo.  In late January 2020 she met up with you at a restaurant in Bendigo.  You asked her if she knew anyone who could help you with some jobs you needed done.  You told her at that time that you needed someone who had some guts and would be willing to be aggressive to someone if necessary.  She told you she would ask around.

8On 6 February 2020 between 10.25 am and 11.12 am you and Haitsma exchanged mobile phone messages about you coming to visit Haitsma and she sent you her address in Long Gully.

9That day you travelled to Bendigo to see her.

10At 11.12 am Haitsma sent a message to someone else stating, 'Alex is coming up.  He just called'.

11When you arrived at Haitsma's home a man by the name of Ronald Booker, then aged 39 years, was there.  Haitsma testified that Booker had recently been released from gaol and that she had heard that he was violent and 'a little crazy'.  She introduced you to Booker and told you that, 'Maybe [Booker] could help you with the jobs you wanted done', and she then left you alone with Booker. 

7 February 2022

12On the following day, 7 February 2020, Haitsma got a call from you looking for Booker.  You told her you needed one of your jobs done that day because there was a wedding on that night and it would be the best day to go ahead.  You said if it was done at the wedding in the car park while everyone was exiting, you would have an alibi and no one would think it was done by the family.  Haitsma told Booker that you wanted them to go to Melbourne that night and Booker agreed.

13In text messages later recovered by police that had been exchanged between you and Haitsma shortly after 2 pm on 7 February 2020 Haitsma and you discussed Booker doing the job for you and payment terms of $5,000 each or a 'box of tomatoes', which was understood between the two of you to be a reference to an ounce of methylamphetamine.  The text messages included:

'[Haitsma:] I spoke to the first guy I introduced u to and he is keen as to do.

[She went on] need a car to get there tho and other details ok.

[You responded] train it.  Will pick up.

[Haitsma went on to say] he wants to know what payment will he ... get

[You responded] U no The payments ... You know all the details.

[She responded to you saying] so 5 G each and a box of tomatoes each?

[And you said] 5 k each ... that's it ... or can pay ... with tomatoes'.

14Booker later told Haitsma he would split what he got with Haitsma if she drove him down there.  She agreed.  She borrowed a Mitsubishi Outlander wagon from a friend in Bendigo.

15Text messages between you and Haitsma continued later that day as follows:

'[At 6.21 pm you texted] Use ready

[At 8.39 pm Haitsma responded] We about to leave

[At 9.41pm Haitsma texted] Im on the road hun.  Were should i head to see u

[At 9.45 pm you responded] English Street Donnybrook'.

16As the messages suggest, Haitsma and Booker left Bendigo with Haitsma driving towards Melbourne.  She took her dog along with her.  On the way Booker told her that he had been instructed that he had to injure someone.

17Throughout the evening Haitsma and you exchanged SMS messages about your respective locations and where you were to meet them, including:

'[At 9.51 pm] How far are you

[Haitsma at 10.02 pm saying] Were just left Bendigo

[You responded at a minute later] Omg [and then] Really

[She said at 10.16 pm] Couldnt help itgps says im 76 min away

[You responded] 512 High Street Epping

[She said at 10.28 pm] U want me to go there

[You replied immediately] Yes waiting for u

[Then at 10.29pm she responded] Ok'.

18I note in passing that 512 High Street, Epping is very close to the venue where your victim, his wife and family and you were attending a wedding reception that evening.

19You later told Haitsma and Booker to go to Sunbury instead.

'[At 11.19 pm you texted] Don't speed [and then at 11.20] Meet me a bit out [and] Send me location ... Send location pls'.

20Haitsma drove to Sunbury where the presence of the Mitsubishi was captured on CCTV cameras in that area.

21At 11.44 pm Haitsma had a 24-second mobile phone conversation with you.  By then she had just arrived in Sunbury.  Haitsma's phone was also by then connecting to towers in the Sunbury area.  It is to be inferred that during that phone conversation between you and Haitsma you agreed to meet her and Booker at a particular dog park in Sunbury.

22Near midnight Haitsma and Booker stopped at a dog park in Sunbury and Haitsma took her dog for a walk.  A car pulled up nearby, you got out, gave Booker a bag and then left.

23The bag contained a sawn-off 12-gauge double‑barrelled under and over shotgun, ammunition for that gun and a rubber mask depicting the face of Freddy Krueger, clearly provided by you to be worn by Booker as a disguise when he carried out the intended shooting.  Haitsma asked Booker what he was intending to do with the shotgun.  He responded that you had told him to shoot the intended victim in the leg, that you did not want him killed but you just wanted to injure him.  The intended victim had been described by you to Haitsma and Booker as 'an old man'.

24Your intended victim was a person who was well known to you and who had previously lived in the same village in Turkey as members of your family prior to relocating to Australia.  It was as a result of that family connection that you and your victim's family members had been attending the same wedding in High Street, Epping to which you had referred in earlier communications with Haitsma as being your preferred location for the intended shooting and which would provide you with a convenient alibi.

25You then headed back towards your home address in Donnybrook.  Haitsma drove off towards your victim's home.

26Evidence given at your trial by your victim, his wife and other family members confirmed that they had indeed attended a wedding and reception at the venue on High Street, Epping which you had originally selected as the preferred location for the intended shooting.  They left that venue at about 11.30 pm.  On the way home your victim and his wife stopped to socialise with friends in Taylors Lakes whilst other family members returned to the family home in Sunbury ahead of them.

27Around midnight Haitsma and Booker arrived as directed by you at the victim's home address in Sunbury.  They pulled up next door.  Booker put on the Freddy Krueger mask you had supplied and handed Haitsma a beanie to wear.  She covered her face with the beanie and a singlet that was in the vehicle.  They made a makeshift silencer for the gun out of a plastic bottle they found in the car.

28They then waited for the intended victim to arrive home.

29Whilst they were waiting the following text messages were exchanged between your mobile phone and Haitsma's mobile:

'[At one minute past midnight you texted] Delete all and that beanie Burn it

[Shortly afterwards Haitsma said] Is he home csuse there are a few cars here

[Then at 27 minutes past midnight you texted] how many cars

[At half-past midnight you texted] They still on way ... No way they beat us there'.

30At 12.55 am a neighbour of the victim noticed the Mitsubishi parked in the street with the engine running and headlights off.  He noted that the driver was female and the passenger a male.  When he approached the vehicle Haitsma did a U-turn and moved the car.  They waited for your victim to pull up to his house.

31By 1.10 am your victim still had not arrived home.  Further text messages were exchanged between you and Haitsma:

'[You texted] Must of stopped some were for visit

[Then a few seconds later Haitsma responded] No nothing and there is no lights on at the place either

[You went on to say] No way they beat us ... Ok so not home yet'.

Shooting

32Very soon after that message exchange between you and Haitsma your intended victim and his wife arrived home.  They parked in the driveway and walked to the front door.  Haitsma drove the Mitsubishi up to the victim's address.  Booker, who was still wearing the Freddy Krueger mask, got out carrying the loaded sawn-off shot gun.  Haitsma remained in the driver's seat with her face covered.

33Booker approached your victim and his wife as your victim was trying to unlock the front door.  His wife, seeing Booker approaching, said, 'Somebody is trying to rob us'.  Your victim pushed his wife behind him, yelled at Booker to get off the property and tried to kick him away.  Booker aimed and fired a shot into his lower right leg at close range causing muscle and other tissue from his leg to spray around the area.  He fell to the ground bleeding heavily from his wound.

34His wife started screaming.  Booker ran back towards the car but dropped the gun on the ground and turned to pick it up.  Your victim's son, who had arrived back at the home well before his parents, ran out from the house, bravely tackled Booker to the ground and started punching him.  The two of them wrestled in the driveway and out onto the street.  The young man tried to stop Booker getting to the car.  Booker's mask came off and fell to the ground.  He shouted for help and Haitsma got out of the vehicle carrying a screwdriver.  Thinking that Haitsma had a firearm, the young man let Booker go.  Haitsma and Booker hastily got back in the car and fled the scene.

35Family members came to your victim's assistance, administered first aid to his leg in an attempt to stop the bleeding and at 1.13 am rang emergency services.  Your victim's daughter-in-law and her children were in the house and were all woken by the commotion.

36At 1.28 am the first police unit attended and assisted with first aid.  Armed Crime Squad police attended and the scene was later processed by the Major Crime Scene unit and Ballistics unit.

37Paramedics arrived at 1.45 am.  Your victim was noted to have falling blood pressure and was estimated to have lost between 500 and 1000 millilitres of blood.  Haemostatic dressings were applied to the wound and an arterial tourniquet applied below the knee to reduce the blood loss.

38Your victim was given pain relief and transported to Royal Melbourne Hospital, where his systolic blood pressure was 80, which was too low to adequately perfuse vital organs and indicated that he was in haemodynamic shock.  He was noted to have suffered a significant injury to the lower right leg and suffered a large loss of tissue.  Initial management included intravenous antibiotics and fluids.

39Police located the following items at the scene:

(a)a Boito brand under and over double-barrel shot gun which had been shortened to a point where it fitted the legal definition of a handgun;

(b)a fired cartridge case was found, consistent with a solid shell which was still inside the shotgun;

(c)a live cartridge was in the other barrel of the shotgun;

(d)the previously described Freddy Krueger-style rubber mask was found on the ground; as well as

(e)a plastic bottle wrapped in duct tape, which had been used as the intended makeshift silencer.

40Haitsma and Booker drove back to Long Gully.  On the way Haitsma disposed of the beanie and singlet that had covered her face.  They stopped in Harcourt, where Booker was then living, and burned some things.  The following morning Haitsma washed and cleaned the Mitsubishi before returning it to her friend.

41Forensic examination of various items later showed a match between Booker's DNA and the firearm on the grip and foregrip, on the inside of the mask that had been left behind and in blood on the road.  Haitsma's DNA matched samples from the grip and trigger of the firearm and on tape used to attach the plastic bottle to the firearm.

42In the early hours of 9 February 2020, Haitsma contacted you about payment.  She sent messages to you saying 'call me' and 'U need to sort us out hun my m8 is becoming impatient'.

43The two of you later met up and you gave Haitsma $5,000 in cash.  You argued with her about you giving her methamphetamine as well.  She described in her testimony how you made her pay $2,500 of the $5,000 for two quarter bags of methylamphetamine, that is two lots of 7 grams of ice, and you only gave her one bag initially.

44Haitsma also testified at your trial that she asked you why you wanted your victim hurt.  She testified that you replied that your victim had been planning to leave the country and you didn't want him to go at that point because you claimed he was taking a lot of family money with him, so you did not want him to be in a state to be able to fly at that time.

45At 3.50 pm that day Haitsma sent a message to Booker saying, 'We have been paid hun come see me'.  She gave $2,500 to Booker, who bought the bag of ice from her for $1,250.  A couple of hours later you turned up at her house and gave her the other quarter bag.

46Haitsma and Booker were not happy with the quality of the ice you supplied them.  She tried to contact you about their concerns without success.

Arrests

47On 13 February 2020 Haitsma was arrested at her home and a search warrant executed.  Her mobile phone was seized.  On 14 February 2020 Booker was arrested.

48On 3 August 2020 you were arrested as you left your home in Beveridge.  You had leased that property and had been living there for a short while with two cousins.  Two phones in your possession were seized, including one containing a SIM card used for a phone service which had been used to communicate with Haitsma about the offending.

49A search warrant was executed at the Beveridge address, during which police found various items, including four firearms located in parts of the house used by you.  They also found:

(a)a Black iPhone which had also been used to communicate with Haitsma about the offending hidden in a printer in the study next to your bedroom;

(b)a .22 rifle in the study cupboard;

(c)a loaded Boito double-barrelled 410 gauge sawn-off shotgun in the TV cabinet in the lounge room;

(d)a double-barrelled Miroku 12-gauge sawn-off shotgun in the study cupboard;

(e)a double-barrelled Akkar 12-gauge sawn-off shotgun in the same study cupboard;

(f)an imitation handgun in that same cupboard;

(g)a box of assorted live ammunition in that same cupboard; and

(h)410-gauge Remington ammunition in the sports bag on the desk in the study.

50After you were convicted at trial for this offence in November 2023 you were tried before a separate jury in September 2024 on an indictment charging you with offences alleging your unlawful possession of those firearms.  You were acquitted on all charges.  I refer to those matters to make it clear to you that I do not sentence you for the offence before this court on the basis that you were guilty of any of the offences relating to those firearms upon which you were acquitted by that second jury.

51I also note that all of the evidence relating to your alleged possession of those firearms was excluded from evidence placed before the jury that convicted you of the offence for which I pass sentence upon you today.

Serious Injury

52Dealing with the serious injury to your victim, on 8 February 2020 your victim underwent a procedure carried out by a plastic surgery team at Royal Melbourne Hospital to debride and wash out the wound.  Findings included:

·Extensive soft tissue loss;

·Skin loss to approximately 4 per cent of the body's surface area;

·Loss of muscle and tendon in your right leg, lower-right leg;

·Loss of approximately 25 per cent of one of those muscle;

·The superficial peroneal nerve was, to quote the report, 'obliterated';

·A fracture of the fibula bone with minimal displacement was discovered and that was managed conservatively.

53On 13 February 2020, he had further surgery to reconstruct the outer compartment of the right-lower leg using a flap made of skin and muscle from the right side of the mid back.  A split skin graft was used to close the wound.  The flap healed without complication, with the exception of some skin on the right foot becoming necrotic.

54On 1 March 2020, he underwent further surgery to debride the dead skin from his right foot and a split skin graft, that is taking a layer of skin from the thigh was applied to the area.  This healed without further issue.

55On 6 March 2020, he was discharged after nearly a month in hospital.  Although the fractured fibula did not require surgery, he was advised not to fully weight-bear on it until later in March, about six weeks after the date of the injury.

56On 12 March 2020, he was seen in the out-patient clinic and, with the exception of small areas of skin graft that had scabbed, his right lower leg was healing well.

57Muscle and nerve loss and damage is permanent.  The muscle and nerves affected by your crime are involved in maintaining balance, turning the foot and flexing toes.  The forensic medical evidence is that muscle flap taken from his back will 'fill in' the defect created by the lost muscle but will not restore function.  As a result your victim may have permanent difficulties with walking, running and balancing on his right leg.

58Victim impact statements from your victim and his wife, both dated 2 July 2021, were tendered by the prosecution at the plea hearing.  Unsurprisingly, they speak of serious ongoing adverse physical and psychological effects upon them that have markedly reduced their quality of life.

Personal matters

59Turning to matters personal to you, your counsel provided me with a written outline of submissions dated 4 November 2024, which is Exhibit 1.  He provided me with a psychological report dated 17 February 2024 from Carla Ferrari, psychologist, which became Exhibit 2.  I was given letters dated 8 April 2022 and 25 November 2022 from Dr Sam Asadi, consultant psychiatrist, which became Exhibit 3; a letter dated 16 August 2020 from Michelle Sciberras, treating psychologist with the Relate Treatment Group, which became Exhibit 4.  

60The letter of Ms Sciberras indicates that you sought 'Support and strategies to assist in understanding and managing' what you apparently then described as your 'prolonged experience of stress, anxiety and anger'.  The letter speaks of you having participated in nine psychology sessions between December 2019 and June 2020 with Relate Group and three earlier sessions with another psychologist.  I regard that letter as particularly relevant in that it provides the only contemporaneous professional insight into your mental state immediately prior to, during and immediately after your offending.  I shall refer to the letter in more detail shortly.

61Next is a letter dated 6 July 2022 from George Tsironis, psychologist, Exhibit 5; and there was a treatment order dated 3 January 2024 signed by Robyn Mills on behalf of the Mental Health Tribunal, which became Exhibit 6.

62Since the last hearing of this matter, as I have mentioned this morning and pursuant to my order in this court, prompted as it was by further defence submissions, a Forensicare psychiatric report dated 21 March 2025 has been provided.  Although that report was ordered by the court, it was so ordered following an indication of difficulties faced by the defence in obtaining a psychiatric report and as a result of my desire for assistance in evaluating your mental state at relevant times, including the present. I shall mark that report for convenience as Exhibit 7.

63I have also been provided with two character references which have not yet been formally marked as exhibits.  They have now.  They are collectively Exhibit 8.  They are, firstly, from Yusuf Demir dated 24 October 2024, which speaks of his, that is Mr Demir's, 15-year friendship with you and what he assesses as your 'outstanding character and integrity'.  He goes on to speak of many admirable personal qualities he had observed in you, including empathy and understanding, but mentions nothing in his letter of observing any mental health issues suffered by you during the time he had known you.  

64The second reference is a joint letter dated 9 October 2024 from Mr Hasan Bozkurt and Mrs Munise Hussein-Bozkurt, in which they speak of knowing you since 2010 and having remained in close contact with you since.  They also speak of your good character and integrity, assessing you as 'a trustworthy and honourable person'.  The letter states that you were a regular visitor to their pharmacy in Dallas to which you went regularly 'for medication or medical advice'.  Again, there is nothing in their letter which even hints that you exhibited symptoms of mental impairment or that you otherwise disclosed such symptoms to them during the 14 years of knowing you.

65The totality of that material assists me to evaluate the various submissions relied upon both orally and in writing by your counsel.  Today, counsel for each party have had the opportunity to address me further in the light of the further material.

66Dealing in more detail with the information those exhibits and the plea submissions supply, I note that you provided Ms Ferrari with an extensive background history about your upbringing, education, relationships and drug and alcohol abuse history, which is set out in detail in her report.  I do not propose to refer to much of that background detail save to acknowledge that you had a difficult, disrupted and to some extent deprived upbringing and education.

67From about your late teens you had what seems to have been a prolonged and at times successful work history in a fruit picking business with your father which became successful for several years until 2020, when COVID-19 intervened to make it more difficult to find workers.  I note that this offence was committed before the first of many restrictions arising from that pandemic.

68You have had various personal relationships as detailed in Ms Ferrari's report.  From one such relationship you have a son aged 18, with whom you have little contact.  More recently you have been in your current relationship, with a woman I shall not name for privacy reasons, for about 18 months or more and with whom you have a child who is now about 9 or 10 months old.  She also has two older children from a previous relationship aged about 11 and 13 with whom you apparently have a good relationship.

69In his plea submissions Mr Lavery stressed the need to take into account the delay between your offending and your sentencing.  This matter has been hanging over your head for more than five years since the offending.  I take into account in your favour the stress that this lengthy delay has caused you, as well as giving you credit for treatments and other rehabilitative measures you have sought out and availed yourself of in the intervening period.

70Likewise, I take into account in your favour that you have a limited criminal history with no prior convictions for violence.

71I accept that since the offending you have demonstrated signs of motivation toward furthering your rehabilitation and addressing mental health issues.  You also have the benefit of the current support of your partner and new parental responsibilities in prospect.  However, it is too early to assess your long-term prospects of rehabilitation as more than guarded.  In the short‑to‑medium term at least those prospects need to be assessed in light of your continuing unwillingness to accept criminal responsibility for your crime and your deplorable lack of remorse. 

72I have also been supplied with prosecution written submissions on sentence dated 7 November 2024, which became Exhibit A, and they have been supplemented by oral submissions at the various plea hearings.

73In part the submissions of both parties addressed the facts which, it was submitted, I should find for the purposes of determining a just sentence.  To that end I proceed on the basis that I am entitled and required to find and impose sentence founded on facts relevant to your offending which I am satisfied beyond reasonable doubt are properly supported by the whole of the evidence placed before the jury and which are consistent with the verdict of the jury.  You did not give evidence at your trial and nor was any evidence led on your behalf.

74I reject the proposition in the plea submissions of your counsel that:

'The jury verdict is only consistent with the jury having entertained a reasonable doubt as to the honesty, reliability and accuracy of [Haitsma's] evidence'.

75Likewise, I reject the plea submission that 'The jury verdict must have been based on a different interpretation of the evidence' than that relied on by the prosecution in the presentation of its case.

76In finding facts relevant to sentence I have approached the testimony of Haitsma with due caution, on the basis that she is a witness who on her own admission was criminally concerned in the commission of the offence.  I had the opportunity of observing her throughout her testimony.  That included cross‑examination by your very experienced counsel, Mr John Lavery, over a substantial part of two sitting days, which is recorded on 85 pages of court transcript.  

77In addition her testimony was corroborated relevantly in important respects by the whole of the independent evidence, including contemporaneous phone records of communications between you and her providing compellingly incriminating evidence of discussions concerning the movements and intentions of each you and of Booker and your respective geographical locations at key times in the lead-up to and aftermath of the shooting.  That material was consistent with and supportive of the prosecution case as to each element of the offence upon which the jury found you guilty.

78Fortified by that independent evidence, I am more than satisfied beyond reasonable doubt that in her testimony at your trial Haitsma gave a substantially truthful account about your role in planning and directing the shooting which Booker carried out with her assistance.  The evidence shows clearly that Haitsma and Booker carried out that shooting in accordance with your directions using a sawn-off shotgun and ammunition which you handed to Booker very shortly before the shooting.  I have no hesitation in finding beyond reasonable doubt that you were the architect, instigator and facilitator of this callous and wicked crime.

79You had ample opportunity in the planning of your offending conduct to consider, reconsider and reconsider again whether or not to proceed with your dastardly scheme.  You had ample opportunity on the day and hours before the offence was committed to abandon your plan.  You chose to see it through in the knowledge that your victim would probably suffer a serious and disabling injury in an utterly terrifying and merciless attack by a masked thug in the dead of night outside his own home, likely in the presence of his wife, whilst you were lurking in the safety of your home as others did your dirty work and took the upfront risks of detection and apprehension.

80Although the jury at your trial found you not guilty on Charge 1 of intentionally causing serious injury, the role you played in this joint criminal enterprise was in every other respect significantly more reprehensible than that of either Haitsma or Booker.

81I am satisfied beyond reasonable doubt that whatever injury short of 'serious' you intended would be inflicted upon your victim, your purpose was that an injury would be inflicted of a kind sufficient to delay his expected and apparently imminent departure from Australia.  The risk that, in carrying out your plan with the shotgun and ammunition you had given him to achieve that outcome, Booker would probably cause a 'serious' injury was clearly of a very high order.

82In the event, your victim did suffer a serious injury and will carry significant long-term adverse psychological and physical consequences likely for the rest of his life.  Also his wife, who predictably was standing beside her husband when he was shot, describes in her victim impact statement lingering mental scars that you inflicted upon her.  I have no doubt that the traumatic images of the attack by a masked gunman will have been burnt into their memories and the physical and psychological injuries you have inflicted upon them will have substantially and permanently reduced the quality of both their lives.  You have shown a callous indifference of a high order to the inevitable consequences to them and their family of your crime.

83Indeed, your original preferred plan was to carry out the shooting in a more public place, namely the car park at the wedding venue in Epping, potentially at risk of terrifying a much greater number potential witnesses to your crime.  Had Haitsma and Booker not left Bendigo later than you intended, that yet more horrific outcome may have become the reality.

84Both Haitsma and Booker were arrested, charged and pleaded guilty to the more serious offence of causing serious injury to your victim intentionally.  They were sentenced in this court as long ago as 17 November 2021.  In Booker's case, upon his unsuccessful appeal against the severity of his sentence, the nature of his offending was considered by the Court of Appeal in its judgement in that case, reported with media neutral citation Booker v The Queen [2022] VSCA 150, wherein at paragraph 27 the court described his offending as 'a very serious example of a very serious offence'.

85Noting as I do that Booker had been sentenced to imprisonment for 10 years for his plea of guilty to the more serious charge of intentionally causing serious injury, thereby admitting that he had that intention in fulfilling his role as the shooter, that offence carries a maximum term of imprisonment of 20 years as distinct from the maximum of 15 years for your crime.  The Court of Appeal went on in the same paragraph of its judgement dismissing the appeal to say:

'Taking full account of all of [Booker's] circumstances (including his appalling criminal record) the sentence imposed upon him was well deserved'.

86I also note that Haitsma was sentenced in the County Court at the same time as Booker to imprisonment for five years following her guilty plea to the same offence as Booker. Their sentences in the County Court are reported with the citation reference [2021] VCC 1957[1].  However, as His Honour Judge McInerney made clear in his sentencing remarks, she received very substantial credit, and what His Honour described as a 'merciful' sentence, because of her plea of guilty and, significantly, because she had given undertaking to His Honour to testify against you at your trial, which undertaking she fulfilled.

[1]DPP v Booker & Anor [2021] VCC 1957

87In passing sentence upon Booker, His Honour sentenced him in this court as a serious violent offender for the shooting and also sentenced him to imprisonment for one year for being a prohibited person in possession of a firearm, of which His Honour ordered six months to be served cumulatively upon the sentence of 10 years for intentionally causing serious injury to your victim, which His Honour described as 'quite horrific'.  His Honour fixed a non‑parole period of eight years for the total effective sentence of 10 years six months.  It is clear from his sentencing remarks that His Honour gave Booker substantial credit for his pleas of guilty, indicating that but for his pleas of guilty he would have sentenced him to a total effective sentence of imprisonment for 14 years and three months.

88It is necessary for me carefully to ensure that the sentence I impose upon you is consistent with the need to achieve parity of sentence between co-offenders for the same or similar crimes.  To that end I have read carefully the references in His Honour Judge McInerney's sentencing remarks to matters personal to Booker and his prior criminal record, as well as to His Honour's findings as to Booker's role in the offending.  I note the observations of His Honour concerning the requirement in the Sentencing Act to treat protection of the community as a primary purpose of sentencing in Booker's case.  That legislative requirement does not apply in your case.

89I must also have regard to the maximum sentence of 15 years for the offence of which you were found guilty, as distinct from the maximum of 20 years for the offences to which Haitsma and Booker pleaded guilty.  However, although you were successful at your trial in being found not guilty by the jury to the more serious charge, unlike Haitsma and Booker I am unable to give you credit for a plea of guilty, albeit to the lesser charge. 

90I find beyond reasonable doubt that you selected Booker partly on Haitsma's recommendation and partly from your own discussion with Booker as a suitable person to carry out the shooting because you believed, rightly as it transpired, that he had the necessary character and experience successfully to fulfil the role in the offending for which you engaged him.

91Neither Haitsma nor Booker had any prior knowledge of your victim.  You on the other hand had a long‑standing family connection with your victim.  At your trial your defence was put on the basis that you engaged in a criminal enterprise with Haitsma and Booker to rob your victim of drugs, which it was suggested he was expected to be carrying when he was ambushed by Booker outside his home in the early hours of 8 February 2020.

92You are not to be sentenced for running a dishonest defence at your trial, nor are you to be sentenced for besmirching your victim's name by suggesting through your counsel that he was known or believed by you to be a drug dealer in possession of drugs of a quantity and quality that in your mind warranted the commission of a robbery upon him outside his home.  However, your resort to that kind of desperate defence leads me to conclude beyond reasonable doubt that you have not a skerrick of remorse for the crime of which you were found guilty and of which you know you are guilty.  Indeed, you have shown a considered and sustained willingness to add further pain to your victims by inventing and publicly airing serious allegations against them in an discreditable and desperate endeavour to save your own skin.

93This crime and your role in it was, to coin His Honour Judge McInerney's description in sentencing your co-offenders, 'quite horrific'.  Your moral culpability for this serious offence is very high and in my judgement is not reduced significantly by any factors arising from your personal history or prior or concurrent mental health issues.  I am not satisfied on a balance of probabilities that you were immediately before or in early 2020, prior to and during your offending conduct, suffering from any mental or physical illness or condition that was causally related to or otherwise capable of reducing your moral culpability.  

94To the extent that your mental health may have suffered following the death in 2009 of a sibling, the history you gave Ms Ferrari suggests it was following that event that you began drinking heavily and abusing illicit drugs.  The known facts suggest that it is much more likely substance abuse of those kinds influenced your behaviours.

95Your more recent and current mental health issues are, however, relevant in a more general sense and in support of the conclusion that they are likely to make it harder for you to cope with serving your sentence than if you did not have impaired mental health.  That hardship factor is also supplemented by the knowledge that you now have a relatively new domestic partner and a young child from both of whom you will be separated whilst you remain incarcerated.  Those facts are to be given appropriate weight in reduction of sentence that might otherwise have been required for this heinous crime.

96The only reliable contemporaneous information beyond your own self-report to others, particularly to Ms Ferrari and to Dr Trainor, as to your mental health at times relevant to your offending is to be found in the letter of Ms Sciberras dated 16 August 2020, Exhibit 4, which I briefly summarised earlier in these reasons.  That letter informs that shortly prior to, at the time of and immediately after this offending, you had sought and obtained psychological treatment, firstly involving three sessions with a psychologist by the name of Carol Schmidt and secondly from Relate Treatment Group in nine sessions between December 2019 and June 2020,

'… seeking support and strategies to assist in understanding and managing [your] prolonged experience of stress, anxiety and anger.’ 

The letter goes on to say that you:

‘demonstrated insight into [your] stress and anger and the use of alcohol to regulate your emotional response or until [you] “black out”.’  

The letter states that when you commenced treatment you reported:

‘ceasing alcohol use and commencing antidepressant medication in efforts to improve [your] emotional and psychological wellbeing'.

97Under the heading 'Treatment focus and progress' the letter reads relevantly:

'Halis was engaged in the treatment episode and utilised his sessions appropriately.  He demonstrated consistent motivation to improve his wellbeing and lifestyle.  Halis reported frequently reflecting on dialogue from sessions and effectively implementing strategies between sessions.  Halis reported and demonstrated improved awareness and insight into his internal and interpersonal experiences, and enhanced capacity to manage emotional and psychological experiences.

'During the treatment episode Halis reported ongoing turbulent interpersonal experiences which perpetuated significant distress and stress, despite his attempts to regulate his contribution.  Halis reported no intention to cease these relationships due to his pervasive sense of responsibility to look after others.

'Halis reported a successful increase in antidepressant medication in March 2020 and reported reduced anxiety symptoms and stress, reporting feeling "slower" and "calmer".’   

98Then under the 'Treatment recommendations' the letter reads relevantly:

'Halis demonstrated sound capacity for insight and reflection into his behaviours, emotions and psychological experiences.  He demonstrated motivation to improve his wellbeing and engage in recommended resources/strategies/programs'.

99None of the content of that letter, in my judgement, provides a proper basis for the application of any of the Verdins principles, nor does your self‑reporting of matters occurring prior to or during the offending.  To the extent that the content of Ms Sciberras's letter may seem to suggest you were referencing personal relationships relevant to your offending, I do not regard such references as sufficiently clear safely to support such an inference.

100The balance of the evidence relied on by your counsel does not persuade me that any of the Verdins principles apply beyond principle No. 5, to which I have already referred.

101To the extent that contrary to my judgement there is a proper basis for concluding that you were suffering from relevant mental impairments immediately prior to or during the planning and execution of this offence, it is plain that you were a source of supply of drugs to Haitsma at those times and actually supplied methamphetamine to Haitsma as part payment shortly after the successful shooting of your victim in conformity with your instructions.  You were vague in the history of your own substance abuse at or before the time of the offence in your consultation with Dr Trainor.  At paragraph 42 of his report Dr Trainor writes, referring to you:

'He said that he began using cocaine and methamphetamine (smoked) aged 17 but had only used them "a few times" after that.  He was vague when answering further questions about his use but didn't think he had used after 2020'.

102However, you clearly had access to methylamphetamine at that time and it is probable that you were abusing that substance.  Whether or not that was so, according to what you told Ms Ferrari at paragraph 82 of her report you -

'continued to abuse alcohol preceding, during and post the period of the offending, stating [you were] drinking copious amounts on a daily basis'.

103Given that information, the question of identifying, much less establishing, a link between any mental impairment and your offending conduct becomes significantly more problematic.  Apart from somewhat vague hearsay references in Ms Ferrari's Report at paragraph 80, there does not appear to be any basis in her report or in any of the other plea material for concluding that there was any mental impairment relevant to the application of Verdins principles 1 to 4 that were present at a time proximate to the offending.  Indeed, today your counsel has conceded that there is no sufficient basis for reaching a different conclusion.

104I note that there is real tension between the existence of any relevant mental impairment at the time of the offending and the two character references to which I have referred as Exhibit 8.

105It is true that the letter of Dr Asadi dated April 2022, Exhibit 3, states in part, 'Halis has been suffering from psychosis for several years'.  But with respect to the author, that bald statement seems to have been based substantially on your self-report after you had been arrested and charged with this offence and the letter goes on to acknowledge that:

'Halis's psychiatric condition also is complicated by alcohol abuse.  He has been drinking excessively, about one bottle of whiskey a day since 2009'.

106I am also not persuaded that the information self‑reported to Ms Ferrari or to Dr Trainor or otherwise emerging from the information relied on during the plea hearings concerning your disrupted and difficult upbringing provides an adequate basis for triggering the application of the Bugmy principles.  That is not to say that the information relied upon by your counsel in support of his submission in that regard is irrelevant.  Far from it, it is very much part of the information which informs the instinctive synthesis required in my sentencing considerations.

107In their plea submissions the prosecution identified at paragraph 53 aggravating features of your offending conduct.  I agree with those submissions and with the prosecution response to the submission of Mr Lavery that a sentence of imprisonment coupled with a community correction order upon release was both available and an appropriate disposition.  To be clear, I have no hesitation in agreeing with the prosecution submission that such a sentence would be wholly outside the available range.

108I have searched for past reported cases concerning sentencing for offences of recklessly causing serious injury and intentionally causing serious injury in an endeavour to find even one sentencing decision, either at first instance or on appeal, that is reasonably comparable by reference to the facts and seriousness of your offending on this charge.  I have found none that come close.  Indeed, your offending must fall squarely into the upper range of seriousness for offences of recklessly causing serious injury.  

109The only decision that I have found helpful in assessing current sentencing practice with any accuracy is the decision of the Victorian Court of Appeal in Booker's appeal against the severity of his sentence to which I have already referred.  I note of course that the maximum sentence for your offence is 25 per cent lower than the maximum for the offence upon which Booker was sentenced.  I have already indicated that I regard your role in the criminal scheme as significantly more serious than that of either of your co-offenders.  I balance that finding against other important considerations including Booker's 'appalling criminal record', his plea of guilty and that Verdins principle No. 5 also applied in his case.  In striving to ensure parity between your sentence and that of your co-offenders I have taken all those matters into account.

110Taking into account all of the submissions made on your behalf and materials provided by the parties and giving what I regard as proper value to principles of just punishment, denunciation, general and specific deterrence, as well as parity, prospects of rehabilitation and proportionality, I sentence you as follows.

111Halis Gurkan, for the offence of recklessly causing serious injury you are convicted and sentenced to imprisonment for eight years.  I fix a non-parole period of five years and three months.

112I declare 646 days' pre-sentence detention as time to be reckoned as served on the sentence I have imposed and I order that those facts be entered into the records of the court.

113Any other matters, counsel?

114MR BARRON:  No, thank you, Your Honour.

115MR LAVERY:  No, Your Honour.

116HIS HONOUR:  Thank you.

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