Director of Public Prosecutions v Kuru
[2024] VCC 349
•20 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-22-02109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADEM KURU |
---
JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28, 29 September, 2, 3, 4 October 2023 for trial | |
DATE OF SENTENCE: | 20 March 2024 | |
CASE MAY BE CITED AS: | DPP v Kuru | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 349 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Intentionally causing serious injury in circumstances of gross violence; guilty verdict
Legislation Cited: Sentencing Act 1991
Cases Cited:Lukudu v The Queen [2019] VSCA 248, Weatherburn v The King [2023] VSCA 283
Sentence: 8 years imprisonment with a NPP of 5 years 4 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr. J. Harkess | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr. L. Howson at trial Ms. S. Wendtland at plea | Ajak Associates |
HER HONOUR:
1Adem Kuru, on 4 October 2023 you were found guilty by jury verdict of a single charge of intentionally causing serious injury in circumstances of gross violence, the maximum penalty for which is 20 years imprisonment. There is a minimum non-parole period of 4 years, the requirement for which I will return to shortly.
2You later pleaded guilty to a related summary charge of committing an indictable offence while on bail as a consequence of your conviction on charge 1. The penalty for this offence is 3 months imprisonment or 30 penalty units.
Circumstances of the offending
3I will now outline the circumstances of the offending for which you are to be sentenced.
4At about 6.30pm on 12 March 2022, Adam Alega and Nicole Lewis were walking along Paisley Street, Footscray, outside the Commonwealth Bank. They came upon you and an argument ensued, allegedly about tablets. In the course of the argument, Mr. Alega punched you to the jaw.
5Mr. Alega and Ms. Lewis continued walking along Paisley Street. You went to the Coles supermarket located in the plaza on the corner of Albert and Paisley Streets.
6You entered the store and obtained a knife for the sole purpose of attacking Mr. Alega.
7A compilation of CCTV footage showed you walk out of Coles and crouch beside a parked car. You took the knife from a shopping bag and removed it from the packaging.
8Armed with the knife, you walked quickly along Paisley Street to catch up to Mr. Alega and Ms. Lewis from behind. This was clear on the CCTV, however a bus then passed between you and the camera, obscuring the next few seconds.
9You used the knife to stab Mr. Alega in the side of his torso, causing a serious penetrating injury, before walking away, still holding the knife, in the direction of Barkly Street.
10Your counsel, Ms. Wendlandt, submitted that it was ‘a stretch’ to find Mr. Alega was stabbed from behind. Given the way the prosecution case was put and the jury verdict, it must have been accepted that you were behind or beside Mr. Alega, not in front of him, when you stabbed him.
11Mr. Alega was taken to hospital and found to have a large volume of blood accumulating within his abdominal cavity. Without emergency surgery it is highly likely that he would have died as a result of his wound.
12You gave evidence at your trial that you went to Coles to get a knife because you were trying to scare Mr. Alega into giving you your money back and didn’t mean to stab him. By its verdict, the jury rejected this evidence.
13By its verdict, the jury must have been satisfied beyond reasonable doubt that not only did you intend to cause a serious injury to Mr. Alega, but you planned to do so and obtained the knife with the intention of stabbing him. It is this planning which forms the circumstance of gross violence.
Objective gravity
14Intentionally causing serious injury in circumstances of gross violence is an inherently serious offence, as indicated by its 20-year maximum penalty and the minimum four year non-parole period that I must impose in the absence of special reasons.
15Your offending involved planning and a determined focus on obtaining a weapon with which to cause serious injury to your victim. You could have walked away but you did not, instead formulating a plan to retaliate against the punch inflicted upon you by Mr. Alega.
16It was submitted by your counsel that this a lower end example of this offence. I accept that you inflicted only one stab wound, however the degree of planning you exhibited is concerning and elevates the offending. You were fixated on executing that plan and it took some time to do so, time in which you could have, and indeed should have, desisted.
Personal circumstances
17I will now turn to your personal circumstances.
18You were born in Turkey in January 1961 and you are now 63 years of age. You are the second eldest of five boys and three girls.
19Your family moved to Australia when you were approximately 7 years old. Your parents separated and you lived with your father and stepmother while your mother returned to Turkey.
20By the age of 13 you were living on the streets to escape your violent homelife. You attended one year of secondary school and have since experienced long-term homelessness. You occasionally reside in a bungalow at your sister’s property.
21You began to use heroin at the age of thirteen with a friend of your father. You now receive buprenorphine injections. You have also used up to a gram a day of methylamphetamine and have abused prescription drugs long term.
22You have had a couple of long-term relationships and have been with a woman called Rose on and off for the last 30 years. You are in receipt of the disability support pension.
23You suffered head injuries as a child and you were involved in a serious motor vehicle accident in 1982. You were reportedly assaulted with a baseball bat to the head in 2007-08. In 2013 you were again assaulted to the head and torso.
24I have received a psychological report from Dr. Aaron Cunningham dated 19 December 2023, Exhibit 2, and an ARBIAS neuropsychological report authored by Mr. Wilbur Koh and Dr. Melissa Slayo dated 10 December 2018, Exhibit 3.
25Your psychiatric history reveals an acquired brain injury. You are often confused, have poor memory and have demonstrated difficulties with planning and communicating. This is compounded by your drug use. You were nevertheless able to formulate and carry out your plan to stab Mr. Alega.
26Dr. Cunningham found that your “methylamphetamine abuse presents as the main contributor to [your] offence behaviour.” In his opinion, “methylamphetamine caused a disinhibiting effect on [your] thinking and increases in [your] aggression.”
Sentencing factors and considerations
27Mr. Kuru, you had the opportunity to walk away from Mr. Alega but you instead went to get a knife and followed him with that weapon before intentionally stabbing him. There is no excuse for such actions.
28Mr. Alega did not wish to participate in the court proceedings and has thus not provided a victim impact statement. It takes little imagination however, to appreciate the physical and psychological impact your offending must have had on him.
29You ran a trial, as was your right, however you have demonstrated no remorse for your offending.
30Intentionally causing serious injury in circumstances of gross violence is a Category 1 offence, meaning I must impose a custodial order pursuant to s.5(2G) of the Sentencing Act 1991 (‘the Act’).
31Pursuant to s.10(1) of the Act, I must impose a mandatory minimum non-parole period of not less than four years imprisonment, unless I find that a special reason within the meaning of s.10A of the Act exists.
32It was not submitted by Ms. Wendtland, on your behalf, that any special reasons apply in your case. Accordingly, the minimum non-parole period of 4 years is applicable.
33Under s.11(3) of the Act, the non-parole period I impose must be at least 6 months less than the term of the sentence.
34I was referred to several cases including Lukudu v The Queen [2019] VSCA 248in which the complainant was intentionally stabbed 11 times, causing serious injury but not in circumstances of gross violence and Weatherburn v The King [2023] VSCA 283 in which the complainant was seriously assaulted, including once he was unconscious, being in circumstances of gross violence. While both cases have some parallels, they are in many ways very different to your offending.
35You are a recidivist offender and the instant offending demonstrates an escalation in the seriousness of your crimes. I note that you have prior convictions for relevant offences including recklessly causing serious injury, intentionally causing injury and assault with a weapon.
36It is impossible to separate the impact of your acquired brain injury from that of your consumption of methylamphetamine on the offending. I accept the opinion of Dr Cunningham, that while drug use would have aggravated your impairment, the offending may not have happened at all had you not consumed ice.
37I do take your ABI into account, particularly insofar as it will make prison more onerous for you than for someone without such an affliction.
38In further written submissions, your counsel submitted that the court can make some adjustment for moral culpability on the basis that your methylamphetamine use occurred in the context of having an ABI. I find this a difficult submission to accept. I do not consider the R v Verdins (2007) 16 VR 240 principles to be engaged so as to moderate your moral culpability. It remains high. Nevertheless, I do take your acquired brain injury into account as part of your general circumstances and I moderate the sentence accordingly.
39I do accept there is some reduction in moral culpability as per the principles in Bugmy v The Queen [2013] 249 CLR 571. Those principles have general rather than specific application and reflect the childhood deprivation you suffered.
40General deterrence must play a role in the sentencing exercise. Despite your brain injury, you were able to form a plan and maintain focus to carry out that plan. Others must be deterred from acting in such a fashion.
41Specific deterrence is also relevant given your prior convictions and the nature of your offending. Your prospects of rehabilitation must however, be considered to be poor given your homelessness, drug addiction, prior criminal history and mental health.
42You were found to be at high risk of future violent offending. This, together with the nature of your offending, indicates a clear need for community protection. Violence such as this makes people fearful to be on the streets.
43Just punishment and denunciation are also relevant considerations when it comes to offending of this nature.
Disposition
44On charge 1, intentionally causing serious injury in circumstances of gross violence, you are sentenced to 8 years imprisonment.
45On the summary charge of committing an indictable offence whilst on bail I sentence you to 1 month imprisonment. This is to be served concurrently with the sentence on charge one, making a total effective sentence of 8 years imprisonment.
46I direct that you serve a minimum non-parole period of 5 years and 4 months before being eligible for release on parole.
47I declare that pursuant to s.18 of the Sentencing Act 1991, you have served 740 days by way of pre-sentence detention, including today.
48Pursuant to s.6F of the Sentencing Act 1991, you are to be declared a serious violent offender. I will have this noted on the record.
3
0