Director of Public Prosecutions v Tok
[2012] VCC 1007
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01090
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ENES TOK |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v Tok | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1007 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Piper | Office of Public Prosecutions |
| For the Accused | Mr A. Halse |
HER HONOUR:
1 Enes Tok, you have pleaded guilty to one charge of intentionally causing serious injury. The maximum penalty for that offence is 20 years imprisonment.
2 The prosecution sought ancillary orders. The prosecution sought an order for disposal of certain items seized. The prosecution also sought an order for the taking of a forensic sample from you pursuant to s.464ZF of the Crimes Act 1958.
3 The circumstances of your offending are set out in the summary of prosecution opening which was tendered as Exhibit A. In summary the circumstances are as follows. At the time of this offending you were 19 years old. On Wednesday 26 January 2011 you went to a park with some friends of yours. When you arrived you noticed that your cousin's car was parked on the opposite side of the lake from where you were. You walked around towards the car. As you approached you saw your cousin sitting with her boyfriend. Your cousin's head was resting on her boyfriend's lap.
4
You returned to your vehicle and got out a fold out knife with a blade approximately eight centimetres long. You walked around the park and again approached your cousin and her boyfriend. You walked up behind the boyfriend and without warning thrust the knife towards his side. The knife cut the boyfriend, Mr Adigozel's, arm before entering his torso and lacerating his liver. You said to Mr Adigozel "That's my fucking cousin, I'll kill you".
Mr Adigozel replied "What are you doing you fucking stabbed me man". You replied words to the effect of "Don't be a hero" and again said that you would kill him.
5
You then started questioning Mr Adigozel as to whether he was serious about your cousin or not. You appeared to be completely calm at the time. Mr Adigozel got into the rear seat of his car and laid down as your cousin,
Ms Tok, prepared to drive him to a medical centre. You threw the knife into the lake and then got into the rear of the car telling Mr Adigozel to sit up and make room for you. When Mr Adigozel protested you said "That's my cousin she had her head on your lap, I don't find that right. That's my namus". I understand "namus" to be a Turkish word for honour. All three of you then drove to the medical centre. Mr Adigozel required a number of operations to repair wounds to his arm, chest and diaphragm.
6 You were arrested on Friday 28 January 2011. You were interviewed. You made admissions in relation to stabbing Mr Adigozel. You said during the interview that you just wanted to scare them and threaten them. You said you "did not mean to stab him in the chest or anything" and that when you did stab him you were trying to get him in the leg but Mr Adigozel was sitting down. The knife was later retrieved from the lake by police divers.
7 Two victim impact statement were tendered. Mr Adigozel, in his victim impact statement which was tendered as Exhibit B described the physical injuries that he had suffered. He describes the severe pain that he felt. He said that the was hospitalised for two weeks following the attack. He said that the area around the wound is still numb and he has been advised that that will remain the case. Mr Adigozel says that he continues to suffer from post traumatic stress disorder. He says he has difficulty in focusing and concentrating. He says he often has nightmares. He says he constantly feels on edge and he is always suspicious of people. He said what happened caused him to reduce his subjects that he was studying. He said that the attack has also affected his relationship with his girlfriend, your cousin. Mr Adigozel says he can no longer trust people as freely as he used to.
8
Your cousin, Betul Tok, also made a victim impact statement which was tendered as Exhibit C. She describes witnessing the attack on her boyfriend. She says that she has been emotionally affected and has difficulties with sleeping. She says she constantly worries that the attacker would come back again. She says she has lost her trust in people. She says that her planned engagement with Mr Adigozel had to be postponed until both were ready to cope. She says that the attack has caused tension between herself and
Mr Adigozel.
9 You have admitted a prior criminal record. That matter includes an appearance in the Melbourne Children's Court in November 2008. You were placed on 12 months probation for charges which include charges of recklessly causing injury and intentionally causing injury.
10 Fourteen exhibits were tendered on your behalf. These 14 exhibits included medical reports, various supporting documentation and a bundle of seven personal references. Your sister, Ms Elif Tok, gave evidence on your behalf. In sentencing you I have taken into account your personal circumstances. I have derived those circumstances from the material contained in the exhibits, from what Ms Tok said and from what was said on your behalf by your counsel.
11 You are now 21 years old. You are the second oldest of five children. You were born in Australia to your Turkish immigrant parents. There was a history of domestic violence during your upbringing from your father towards your mother and you and your sisters and brother. While you were in primary school your parents separated. Your mother with you and a brother and sister went to Sydney. At some point for reasons that she is now unable to explain your sister called your father. Your father came to Sydney and got you and your sister and took you back to Melbourne.
12 You had difficulties at high school and were suspended and ultimately expelled in Year 10 for being disrespectful, having fights, truancy and property damage. Your behaviour had deteriorated by that stage. Your mother had been overseas for three years apparently because she was fearful of your father. Your father remarried and your mother returned to Australia. This was when you were about 16 years old. You moved in with your mother. She had difficulties with your behaviour and you moved out of your mother's home. You mother had been concerned about you and had referred you to Orygin Youth Services. You have worked in various jobs including plumbing, factory work, putting down floor boards and you had also had a job as a bricklayer. Prior to your being remanded in custody you had been working two jobs as a driver.
13 In his report, Exhibit 1, Dr Cidoni describes your substance abuse history. You told Dr Cidoni that you had used cannabis from the age of nine as a one off and then from 13 on occasions and from 15 to 18 up to two grams a day. You told Dr Cidoni that on New Year's Eve 2010 you resumed daily use of cannabis in smaller amounts. You have also in the past used amphetamines or ice. You had last used amphetamines several days prior to your offending. You have on occasions used other illegal drugs.
14 Dr Cidoni reports and I accept that you had nine days of rehabilitation when you were 18 and did not use illegal drugs for 18 months after that. Dr Cidoni also describes your psychiatric history. You had your first episode of psychosis in December 2009 and were hospitalised as an involuntary patient. You were placed on a community treatment order. You describe a range of psychotic symptoms. You also described very significant depression. You described to Dr Cidoni that you were relapsing in January 2011 around the time of this offending in the context of very significant substance use which had started on New Year's Eve. You said to Dr Cidoni that your symptoms were prominent for approximately one month.
15 It is Dr Cidoni's opinion that you suffer from schizophrenia. He says that you clearly described a psychotic relapse at the time offence but no clear psychotic symptoms in relation to the victim, "although it is probable that his psychotic illness at the time made him less inhibited and acting less rationally". Dr Sidoni suggests that violence is uncharacteristic of you which he believes suggested that psychotic illness was playing a role. He says there was also a cultural element to the offence.
16 Dr Cidoni's opinion is that you would be a high risk of your illness relapsing if you were imprisoned. He suggests that you have excellent prospects for rehabilitation. Dr Cidoni suggests that imprisonment would not assist your rehabilitation or in deterring you from further offending. Dr Cidoni is also of the opinion that your schizophrenia would make it likely that imprisonment would be more difficult for you.
17
Dr Wilson, a psychiatrist, has also provided a report which was tendered, Exhibit 2. His report was dated 22 May 2012 and is more recent than
Dr Cidoni's report. Dr Wilson says
"With regards to the offences before the court it is difficult for me to make a detailed comment as the focus of my few appointments with him has been to attempt to engage with Enes clinically with a view to ongoing therapy rather than a forensic assessment.
It would be reasonable to comment however that given his serious difficulties with identity formation, a distorted sense of cultural identity and the anxiety and confusion associated with this are likely to have played a significant part in his stated reasons for attacking the young man in question.
From the description on the charge sheet I agree with Dr Cidoni that the actions described do not appear to be driven by psychotic beliefs or hallucinatory perceptions".
18
Dr Wilson says that his opinion, for somewhat different reasons from
Dr Cidoni, that a custodial sentence would be potentially very damaging to you. He suggests that incarceration would carry with it a high risk of recurrence of your schizophrenia.
19 Your counsel in his submissions on your behalf addressed the changes that you have made since this offending. He said that you have stopped using illicit substances and have engaged in employment and other activities. He says that you were working two jobs as a driver. Your counsel also described your efforts to complete your secondary eduction through distance education.
20 Your sister gave evidence on your behalf. She was an impressive witness who clearly cares a lot about you and wishes to support you. She described slow and steady changes that you had since you had been in a residential withdrawal program with YSAS in the middle of 2011. She said that you are more emotionally stable, that you are working and that you are talking with your family. She says you are more calm, she says you are friendly, happy and more relaxed.
21 Your sister was asked whether she noted remorse on your behalf and she said that she knew you were sorry for what had happened. Your sister described a situation where you had assisted a neighbour. She said you also go swimming and to gym and do boxing with your younger brother as well as attending Friday prayers at the mosque.
22 In sentencing submissions your counsel conceded that this was a very serious offence but argued that it was at the lower end of intentionally causing serious injury offending. Your counsel submitted that in the light of the circumstances and how you presented to the court at the time of the plea that I should find that there were exceptional circumstances and impose a suspended sentence in respect of the matter rather than immediate incarceration. It is agreed between the prosecution and the defence that it would be necessary for the court to be satisfied that there were exceptional circumstances before a suspended sentence could be imposed.
23 Your counsel submitted that if you were required to serve any term of imprisonment that a non-parole period should be set rather than a partial suspension of sentence.
24 Your counsel, in mitigation, relied on your youth and your plea of guilty. He conceded that your plea of guilty was late having being made just before the start of the trial. He submitted that your plea of guilty should be regarded as having both utilitarian value and also as an expression of remorse. Your counsel referred to comments by the medical practitioners who had seen you as to your remorsefulness.
25 Your counsel relied on certain principles set out in the case of Verdins. Your counsel said that your mental status would be adversely affected by incarceration. In relation to the application of other Verdins principles your counsel suggested that that was less clear but that I should take into account that while the medical evidence was that you were not psychotic at the time your mental state had made you less inhibited and contributed to you acting less rationally at the time of the offending.
26 Your counsel submitted that you are now clear of the problems and afflictions that led you to acting in this way. He suggested that your prospects of continuing rehabilitation were good because of the significant steps which you have put in place yourself. Your counsel argued that you had made significant steps to "monumental and exceptional change". He said you had no criminal matters pending. Your counsel also referred to the high opinion that other people have of you as outlined in the references that were provided.
27 The prosecutor in sentencing submissions referred to the seriousness of the injuries to Mr Adigozel. She said that her sentencing instructions were that the appropriate sentence would be a sentence of two and half to three years imprisonment. The prosecutor conceded that a partially suspended sentence might be appropriate with at least six months to be served.
28 The prosecutor submitted that I should conclude that, on the medical evidence, your offending did not occur as a result of psychosis but conceded that your were probably disinhibited and suffering a lack of insight into your offending as a result of your mental condition. The prosecutor submitted that the Verdins principles in relation to the effect of incarceration on you should be taken into account and should be reflected in the minimal sentence. The prosecutor submitted that I should be cautious in assessing your rehabilitation efforts given your poor engagements with various programs and treatment in the past.
29 Mr Tok, you clearly engaged in very serious offending. The maximum penalty reflects the seriousness with which parliament and the community takes the offence of intentionally causing serious injury. When you got to the park you saw your cousin and you went back and got a knife from the car. This was very deliberate behaviour.
30 You then engaged in an unwarranted, shocking and sudden attack on a person who was minding his own business and enjoying a relaxing time. You caused serious injury. The harm suffered by Mr Adigozel has been set out in his victim impact statement. It appears that in some way you were offended by the behaviour of Mr Adigozel towards your cousin and felt the need to act out in some sense of honour. Clearly that view was entirely misplaced. You acted in a way that was clearly completely unwarranted and if anything dishonourable.
31 I have taken into account in mitigation of sentence your plea of guilty. I have taken that plea of guilty into account in it having utilitarian value and saving the time and expense and trauma of a trial. I have also taken account an expression of your remorse. I have also noted that you make significant admissions to the police.
32 I note that you have had some criminal history as a child in relation to violence but I consider that your prospects for rehabilitation are good. That is because of your progress so far. As I have said I was impressed by the evidence of your sister. I note that you have been studying your VCE subjects of English and global politics and have had tutoring in relation to those subjects. I have noted you also completed a drug withdrawal program over a week with YSAS in June 2011. The references provided speak of your remorse, your kindness to others, your improvement in recent times and your intelligence.
33 I have considered the contribution of your mental state towards your offending. Your behaviour at the time was clearly very odd and you are unable, at this time, to explain your motivation. It is my view that your mental state at the time arose from a combination of use of illicit drugs and your mental state as described in the medical reports leading to a degree of disinhibition and a negative effect on your judgment. Those matters need to be taken into account in my view in a moderate reduction in sentence.
34 I accept that your mental state would make incarceration more difficult for you and again the sentence should be reduced to reflect that matter. I accept that because of your youth your rehabilitation ought be given significant weight in your sentence. I also consider your offending to have been serious and to warrant a sentence of imprisonment for the purposes of denunciation, punishment, general deterrence and specific deterrence. The seriousness of your offending leads to a conclusion that a sentence of imprisonment with time to be served is the appropriate sentence in the circumstances. To do otherwise would give your rehabilitation undue weight compared to the need to give effect to the other sentencing purposes to which I have referred. I am not satisfied there are exceptional circumstances that would justify a suspended sentence.
35 In view of your youth, mental health problems and positive progress with rehabilitation I consider it appropriate to set a significantly lower non-parole period than I would otherwise set. It is my view that the seriousness of your offending, even taking into account the mitigating circumstances, requires that you serve a period of time longer than the period submitted as appropriate by your counsel or by the prosecutor. Could you please stand up, Mr Tok.
36 On Charge 1 of intentionally causing serious injury you are convicted and sentenced to a term of imprisonment of three years. I fix ten months as the period that you are required to serve before you are eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of four years and six months with a non-parole period of two years and six months.
37 I make the order for disposal of the item sought. I make an order for the taking of a forensic sample from you. I make that order because of the seriousness of your offending, that the making of the order was not opposed and that it in the public interest to make that order. I declare that you have served 57 days by way of pre-sentence detention and I order that that declaration be recorded in the records of the court.
38 Mr Tok, I am required to tell you that you must cooperate with the authorities when they come to take a sample from you for the DNA sample. They will do that, I expect, by way of a saliva sample so a swab from your mouth. I am sure you will cooperate with them but if you do not cooperate with them they are allowed to use reasonable force to take a sample and they may take a blood sample. As I have said I am sure that you will cooperate with them. Thank you, could you take your seat please.
39 MR HALSE: May it please, Your Honour.
40 HER HONOUR: Thank you very much, Mr Halse.
41 MS PIPER: Thank you.
42 HER HONOUR: Thank you, Ms Piper. Now as far as anything like the adding up is there anything that you find, that you can see, that's in error there?
43 MR HALSE: No, Your Honour.
44 MS PIPER: No, Your Honour.
45 HER HONOUR: Are there any other procedural matters that I need to deal with that I haven't dealt with that you can see at this stage?
46 MS PIPER: None that I'm aware of, Your Honour.
47 HER HONOUR: All right. Now I'll just sign these orders while I'm here. Mr Tok, I understand that it is a difficult sentence for you to be sentenced to imprisonment. It seems to me that you have considerable potential for a very positive future. I hope that that is able to occur despite the period of imprisonment. I urge you to try and stay away from any trouble while you are in prison and to try and continue with your education insofar as you are able to do that. I think you do have the capacity to have a very good future ahead of you. Thank you. Anything else?
48 MR HALSE: Yes, Your Honour. I think it was raised on - I might have raised it on the last occasion and it may have been done. If not I'm just concerned that it might be appropriate if they Dr Cidoni and Dr Wilson records be attached to the custody records.
49 HER HONOUR: Yes I think we might have before but if you're content with that then I'll ask my Associate to do that.
50 MR HALSE: Yes, Your Honour.
51 HER HONOUR: We perhaps ought to note on the remand order that Mr Tok has had mental health problems - - -
52 MR HALSE: Yes, Your Honour, that would be appropriate.
53 HER HONOUR: - - - and needs to be assessed. They're no doubt aware of it because he's already been in custody but we will note that.
54 MR HALSE: I thank Your Honour.
55 HER HONOUR: All right, thank you. Mr Tok, can be taken down now and I'll go. Thank you.
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