Director of Public Prosecutions v Mehmet

[2018] VCC 1525

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02112

DIRECTOR OF PUBLIC PROSECUTIONS

v

ENVER MEHMET

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2018
DATE OF SENTENCE:	18 September 2018
CASE MAY BE CITED AS:	DPP v Mehmet
MEDIUM NEUTRAL CITATION:	[2018] VCC 1525

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Roodeburg
For the Accused	Mr D. Gray

HIS HONOUR:

1On 14 September 2018, Enver Mehmet, you pleaded guilty to one charge on the indictment number H10957475.2.  Charge 1 is recklessly cause serious injury of Husnu Huseyin on 23 March 2017.  This charge has a maximum penalty of 15 years' imprisonment.

2You also admitted a prior criminal history of appearing at the Heidelberg Children's Court on 31 October 2008, charged with recklessly cause injury.  You were placed on a good behaviour bond on that occasion.

3You have been in custody for four days awaiting sentence.  I have had you assessed for a community corrections order in the intervening period.

Circumstances of Your Offending

4I turn to the circumstances of your offending.  At the time of the offence you were 27 years old and you are now 28.  You live with your father and stepmother at 128 Curtain Avenue, Lalor.  Mr Husnu Huseyin was well known to you family and part of the local Turkish community.

5Mr Huseyin would attend at your family home to do paid gardening maintenance work.  On the day of your offending Mr Huseyin had attended at the family home to do the garden maintenance work.  There was a verbal dispute between your father and Mr Huseyin about payment for the gardening work.

6It was after this argument that the offending occurred.  On that day Mr Huseyin attended at the home to do the lawn mowing and the gardening.  After completing his work he was speaking to Suleyman Mehmet.

7He spoke with you for around 20 minutes while he was packing up.  You have then helped him to pack his things.  When Mr Huseyin had finished packing up Mr Huseyin spoke with your father in the lounge room of the home.  Your father indicated Mr Huseyin owed him some money from last month for work that had not been completed.  Mr Huseyin replied that he did not know that.

8Your father then says he told Mr Huseyin he would pay him this time but not to come again.  Mr Huseyin was upset and was crying as he walked towards his car.  At around 6.40 pm your stepmother, Sergul Mehmet, walked out of the house after Mr Huseyin and asked him if he had change for $100.

9Mr Huseyin replied that he did not.  Mrs Mehmet then returned to her house to get him some money.  At that point you have yelled out, "Dad, dad", and both Mr Huseyin and Mrs Mehmet ran toward the house.  Your father was lying on the ground inside the back door part of the house and was unconscious.

10The evidence, including the CCTV footage, suggests that your father fell off his mobility scooter and that you were there and you saw that happen.  Mr Huseyin was out the front of the house when that fall occurred.  When Mr Huseyin had come in the back of the house you approached him immediately.

11You have said, "What the fuck are you doing here you fucking cunt?  Do you want to fucking kill my fucking dad, do you?"  You have then punched
Mr Huseyin to the face and continued to hit him 10 to 20 times as you have yelled, "I want to fucking kill you, you cunt.  You have come in here and killed my father.  I am going to kill you."

12Mr Huseyin recalls that he was kicked during the assault but recalls little else until he woke up in hospital.  That is a very brief summary of the assault and I am going to continue.  The CCTV footage indicates that the assault commenced at around 6.41.  This is based on the clock on the CCTV.

13That assault occurred inside the back door.  The inside room is not under the CCTV surveillance, however you can be seen throwing punches as you enter the room from the outside.  Shortly after Mr Huseyin crawls out of that room to the back porch area while he was being pursued by you and you continued to kick and punch him.

14The assault continued at the side and the front of the house until a neighbour attended the house and pulled you off Mr Huseyin.  Your mother witnessed the assault and recalls that you were punching Mr Huseyin.  The CCTV footage was shown in court during the plea hearing.

15Your stepmother, Mrs Sergul Mehmet, gave evidence at the plea.  Mrs Mehmet confirmed that when she arrived in the back room her husband, your father,
Mr Suleyman Mehmet, was on the floor and appeared unconscious.  A short time later Mr Huseyin who had attended at the back room to assist your father and stepmother.

16At that stage you were not in the room.  The CCTV clearly shows that you had left your distressed father in the back room and gone through the house to the front veranda and around the driveway to come back into the rear part of the house.

17You go into the back room.  The CCTV does not show what happened in the back room.  Mrs Mehmet in her evidence stated you came into the back room and immediately started assaulting Mr Huseyin.  She yelled at you to stop.  While your father is on the floor and in your words, "You thought he would die", you continued to assault Mr Huseyin.  You followed Mr Huseyin out of the back room as he was crawling and scrambling to get away from you.

18You pursued him by kicking and punching him.  Mr Huseyin’s hands can be seen held up in a position of surrender.  You continue with your assault. 
Mr Huseyin then gets up and escapes out the rear doorway into the driveway.  You pursue him and chase him onto the front veranda.

19You again assault him by punching and kicking him.  Mr Huseyin is either on the ground or crouched down, offering no resistance to your vicious attack.  It is not until a neighbour intervenes by standing between you and Mr Huseyin that your assault ceases.

20There were three separate physical areas around the house that you have attacked Mr Huseyin.  You could have stopped at any one of them.  You did not.  You were set on a vicious and cowardly attack on Mr Huseyin.  After your attack was stopped, the neighbour, walked Mr Huseyin back to his car and Mr Huseyin drove away.

21Mr Huseyin only drove approximately 2 kilometres, getting half way home, when he pulled over and was beeping his horn.  A neighbour to that area, a
Mrs Margaret McDougall, came to his aid.  She saw that Mr Huseyin was sitting in the front seat with a bloodied face and was screaming.

22She turned the car off and called an ambulance.  During the 000 call which was made at 6.44 or thereabouts Mrs McDougall described Mr Huseyin as being, "Just awake, just with me, looks beaten up", and tells the operator that he was "belted up".  Mr Huseyin was taken to the Northern Hospital by ambulance.

23At approximately 8.25 pm you turned yourself into the Epping Police Station after your brother had told you to do so.  Police later obtained the CCTV footage from your family home and noted that it had captured the incident.  The CCTV footage is Exhibit C.

24On that day at the time you attended at the Epping Police Station to hand yourself in you were spoken to by Sergeant Sage and noted that you had a small scratch on your right ring finger which was bleeding slightly.  She took photographs of this injury.

25You were then interviewed that evening and you made the following comments: 

·    You said that your dad and Mr Huseyin were arguing about the payment for lawn mowing;

·    That Mr Huseyin walked off to the front and he came back through the back and found your dad on the ground;

·    That you thought you were protecting your dad;

·    "I started attacking him and I just - I just hit him a few times.  I told him to leave and he left"; 

·    The incident occurred around 5 pm;

·    That you heard the argument between your dad and Mr Huseyin and it lasted for about five minutes;

·    That you went in and saw your dad on the ground shaking;

·    "I hit him and then told him just to get out of here”; 

·    “I hit him with a closed fist to the face”’; 

·    “I hit him two to three times";

·    That you were just trying to protect your dad; and

·    That Mr Huseyin did not fight back when you hit him.

26You were then charged on 23 March 2017 with injury and unlawful assault charges.  You were later charged on 31 July 2017 with intentionally cause serious injury and recklessly cause serious injury which you have now pleaded guilty to when further medical material was provided to the police.

27The committal case conference was listed for 4 and 18 October 2017.  The matter proceeded by way of straight hand up brief to the County Court with a plea of not guilty on 18 October 2017.  At the initial directions hearing on 19 October 2017 you sought a sentence indication hearing.  This was consented to by the prosecution at a further directions hearing on 9 November 2017.

28A sentence indication hearing took place on 14 February 2018 in relation to the one charge of recklessly cause serious injury.  Following the sentencing indication the matter did not resolve and it was listed for trial.  A number of directions hearing were listed and the matter did ultimately resolve to a plea of guilty.

29You then were arraigned on 31 May 2018 and entered a plea of guilty to the one charge of recklessly cause serious injury.

Victim Impact Statement

30I now turn to the impact on your victim, Mr Huseyin.  Mr Huseyin swore a victim impact statement on 14 September 2018.  He did not want it read out in open court.  He did attend the plea hearing but left the courtroom when the CCTV of the assault was shown.  He again left the courtroom when you gave evidence.

31In his victim impact statement he attested to thinking he was lucky to be alive.  He says his sleep is constantly disturbed and he is in constant fear.  He says his depression and anxiety are worse due to your offending.  In respect of his physical injuries I rely on what the agreed prosecution summary sets out and I will repeat it in full.

32This is from the summary.  On 23 March 2017 Mr Huseyin was taken to the Northern Hospital.  He was treated for various injuries as set out below and spent 12 days in hospital with some of that period in intensive care.  In fact he was in intensive care for seven days.

33On 30 March 2017, seven days after the assault, Dr Lucy Bransom undertook a forensic medical examination of Mr Huseyin.  At that time he was in the intensive care unit in the Northern Hospital and he had sustained the following injuries:

·    There was tenderness and bruising to his head and neck;

·    A healing laceration to the left side of his inner upper lip, multiple abrasions to the left side of his chest and tenderness generally;

·    Bruising to the back and buttocks region;

·    bruising to the left and right upper limbs, that is hand, forearm and arms; and

·    Bruising to the lower left limb behind the knee.

34A number of photographs were taken of Mr Huseyin and they became, or some of those photographs are part of an exhibit in the plea.  Dr Angela Williams of the Victorian Institute of Forensic Medicine also provided a forensic medical report following a review of Mr Huseyin’s ambulance and medical records, radiological findings and intensive care admission discharge summaries.

35In her report she sets out that upon the attendance of the ambulance it was noted that Mr Huseyin had the following injuries:

·    His blood pressure and heart rate was mildly elevated;

·    His right cheek was swollen and he complained of significant pain; 

·    He had blood on his face and right nostril, pain in his ribs;

·    A 5 millimetre laceration of his left inner upper lip;

·    Bruising to the nose and tenderness; and

·    Bruising across the chest. 

36On 24 March 2017 Mr Huseyin became hypoxic, tachypnoea and tachycardia, (essentially low oxygen, increasing breathing and increased heart rate) and was admitted to the intensive care unit.

37Further investigations revealed that Mr Huseyin was suffering from a right clavicle fracture, that is a broken collarbone and right anterior rib fractures.  He was put on CPAP, a device which delivers oxygen under positive pressure to assist breathing and was ultimately incubated and ventilated.

38Further investigations revealed that the bases of Mr Huseyin’s lungs had collapsed and that he had acute kidney injury, which commonly occurs after shock, injury, blood loss and other conditions.

39Five days later on 29 March 2017 Mr Huseyin was extubated and began to breathe on his own.  He was discharged from Northern Hospital on 3 April 2017.

40A report from Dr Jim Romas, of Rochdale Medical Centre notes that Mr Huseyin had the following ongoing symptoms as at 18 October 2017:

a)    "Mr Huseyin remains mentally traumatised, anxious and has panic attacks and nightmares; and

b)    He still has significant chest pain, rib pain and right shoulder pain requiring constant analgesics". 

41A further report was sought from Dr Angela Williams in 2018 to obtain an update on Mr Huseyin’s injuries.  Dr Williams reviewed Mr Huseyin’s medical records and reported as follows:

a)    Mr Huseyin continued to suffer pain secondary to rib fractures for four to five months post the assault;

b)    Mr Huseyin continued to suffer pain secondary to an injury to his left shoulder that improved over the months following the assault;

c)    He required ongoing management of anxiety and depression following the assault, including referral to a psychologist and psychiatrist.

42A mental health plan was prepared in July 2017 and described post-traumatic stress symptoms after the assault, including difficulty sleeping, difficulty managing pain, panic attacks, fear and bad dreams.  Your assault on
Mr Huseyin had a significant and long lasting impact on his wellbeing.

Your Personal Circumstances

43I turn to your personal circumstances.  At the time of the offending you were
27 years old and you are now 28.  You live with your father and your stepmother in the family home at Lalor.  You completed Year 10 at high school.  You are currently enrolled in a construction course in order to obtain a building licence.

44You have worked as a concreter mainly working with family members who are also concreters.  I note your brother's evidence that you have not been working since this assault.  Your early life was troubled.  When you were one year old your parents separated.  Your mother was a gambling addict.

45You lived with her in the Flemington flats.  You told psychologists and psychiatrists that you were beaten and physically abused by your mother when you were young.  You commenced living with your father when you were approximately 12 to 14 years old.  At that time you were referred to Semra Durmaz, a psychologist.

46You attended her for two years.  You did not return to see her until after you had committed this offence.  Ms Durmaz prepared a report dated 24 July 2017 and that was Exhibit 4 on the plea.  In that report she does not rely on your treatment as a teenager to make an assessment.  Instead Ms Durmaz relied upon your information to her, psychological testing and her clinical impressions of you at the time of your assessment.

47Ms Durmaz diagnoses you as suffering from major depressive disorder and PTSD, which is post-traumatic stress disorder.  In her opinion you were overwhelmed by your childhood experiences.  You are currently treated by
Dr Veda Chang, a psychiatrist.  Dr Chang prepared a report dated 6 September 2018.  That was Exhibit 2 on the plea.

48Dr Chang has diagnosed the following conditions which are in remission; separation anxiety disorder, generalised anxiety disorder and social anxiety disorder.  Dr Chang also diagnosed you as mostly in remission with the following conditions; a major depressive disorder and ADHD.

49Your only ongoing diagnosis by Dr Chang was post-traumatic stress disorder.  You are currently medicated with two drugs.  One is Escitalopram and Vyvanse.  Dr Chang was of the opinion that your PTSD symptoms would worsen whilst you were in custody.

50You have also been assessed by Dr Adam Deacon, a psychiatrist, for the purposes of assessing the defence of mental impairment according to your counsel.  Dr Deacon prepared a report dated 7 May 2018.  Dr Deacon took a history that you were studying and on Centrelink benefits at that time.

51The history given by you to Dr Deacon about the lead up events to your assault is focussed on a money dispute between your father and Mr Huseyin.  The history of the assault itself given by you to Dr Deacon was not accurate.  It minimised your involvement.

52Dr Deacon diagnosed you as suffering from post-traumatic stress disorder. Dr Deacon stated as follows in his report.  "Whilst Mr Mehmet's mental state was compromised due to panic it is difficult to support consideration of a mental impairment defence as there are additional personality based variables germane, including self-regulation and impulse control".

53Mr Gray, your counsel, submitted that Verdins' case was applicable in your sentencing process in regard to a reduced moral culpability and general deterrence considerations.  Further, he submitted that limbs five and six of Verdins' principles are applicable to you.

54I accept that limbs five and six of Verdins' principles are applicable to your sentencing considerations.  Mr Gray relied on the following statement by
Dr Deacon to support the proposition that there was a nexus between your mental state and your offending which would enliven limbs one to four of Verdins' principles.

55He said as follows:  "Mr Mehmet's aggressive response appear to have represented the state of panic and associated catastrophic thinking combined with poor self-regulation and impulse control.  His capacity to exercise reasonable judgment was compromised to the extent that he immediately assaulted Mr Huseyin without purpose purportedly having conscious awareness as to the extent of the assault as it was occurring".

56Mr Mehmet, your report to Dr Deacon was not an accurate portrayal of what actually occurred in this vicious assault.  Dr Deacon's opinion however leads me to take into account your PTSD as a mitigating factor in respect to moral culpability and a matter appropriate to moderate the application of general deterrence in your sentence.

57Nevertheless, your condition of PTSD and your so-called panic response does not extinguish other sentencing considerations and as I say, it only moderates and mitigates the other factors.

Sentencing Considerations

58I turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factor such as the seriousness of your offending, your culpability for it and your personal circumstances.

59I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

60I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and statistics for those sentences at the time.

61I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

62I am also mindful that provisions of the Sentencing Act, in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

63I have reviewed the case of Bolton in considering if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order.  You have been assessed as being suitable for a corrections order.  That is not the end of the matter.

64The prosecution submitted that a combination sentence involving a term of imprisonment to be served followed by a lengthy CCO was the appropriate sentence.  Your counsel submitted the appropriate sentence was a CCO with unpaid community work as the punishment factor.

65You have pleaded guilty to this charge.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

66Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates some remorse on your behalf.

67Your plea also avoids the necessity of Mr Huseyin having to give evidence about your vicious and unprovoked attack upon him.  The objective seriousness of your offence is informed by the following factors:

a)    The attack was unprovoked;

b)    Mr Huseyin had answered your call or plea for help and you attacked him;

c)    The assault was sustained initially in the back room where your father was unconscious, and then in the back porch area and then you pursued him around to the front veranda area;

d)    The assaults involved repeated punching and kicking;

e)    Mr Huseyin never resisted your attack and assumed a surrender stance and you continued with your attack;

f)     The attack went on for four minutes and was only stopped by the intervention of a neighbour;

g)    The injuries sustained by Mr Huseyin included head injuries, a broken collarbone and ribs resulting in 12 days hospitalisation, seven of them spent in the intensive care unit; and

h)    This assault was cowardly and vicious.

68I have previously dealt with the Verdins' principles applicable to your sentencing considerations in the personal circumstances section of these reasons for sentence and I will not repeat them here.

69I regard your prospects of rehabilitation as fair to good.  You will need to overcome your anger response which was evident on the day of your offence and you have engaged with a psychiatrist for that purpose.

70Taking into account the considerations of specific and general deterrence, even when they are moderated for your condition of PTSD, the considerations of just punishment, denunciation of your conduct, the only appropriate sentencing disposition is a term of imprisonment.

71The appropriate length of that term of imprisonment makes an imposition of a community corrections order a legislative impossibility.  You have expressed remorse of your offending to your psychiatrist and psychologist.  I have listened very carefully to your evidence and I have assessed that you had little empathy for Mr Huseyin and that your level of remorse is limited.

72I have set a non-parole period in the hope that you will earn parole and then be assisted by the Adult Parole Board in addressing your anger management to further reduce the risk of your re-offending.  Whilst your one previous court appearance was nearly ten years ago and then in the Children's Court jurisdiction it was an offence of recklessly cause injury.  It is clear you need to address your anger problems.

73Would you stand please?  On Charge 1, recklessly cause serious injury, you are convicted and sentenced to 30 months' imprisonment.  I set a non-parole period of 18 months' imprisonment and I declare that you have served four days of pre-sentence detention.  Is there anything else?

74MS ROODEBURG:  6AAA declaration.

75HIS HONOUR:  Yes, the s.6AAA declaration is but for your plea of guilty I would have sentenced you to three years and three months' imprisonment with a minimum parole of two years.  Thank you.  If you could remove the prisoner?

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