DPP v Kilic

[2015] VCC 392

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00026

DIRECTOR OF PUBLIC PROSECUTIONS

v

YAVAZ KILIC

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2015
CASE MAY BE CITED AS:	DPP v Kilic
MEDIUM NEUTRAL CITATION:	[2015] VCC 392

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Parkes
For the Accused	Mr A. Lewin

HIS HONOUR: 

1Yavaz Kilic, you have pleaded guilty to one charge of causing serious injury intentionally and two summary charges.  One of possessing a prohibited weapon, namely a samurai sword and secondly, possessing property, namely some credit cards, suspected of being the proceeds of crime.

2You have admitted your criminal history, which contains numerous offending, beginning in 2009 and includes a number of prior convictions in relation to weapons, drug convictions.  It does not contain any convictions for offences of violence.

3At the time of this offending, you were on bail and also on a community corrections order.  The details of the offending are set out in the prosecution opening, which is Exhibit 1 on the plea.  I will not now in any detail go into the facts of the case.  They are not disputed by your counsel and any reader of these reasons can refer to Exhibit 1 to place the sentence in its factual context.

4In it, the victim, in describing your relationship with her, said that, "His paranoia ruled our relationship and controlled me.  I always seemed to be doing something wrong.  He always thought I was cheating.  This behaviour kind of became normal to me.  I did not know how to get out of it."  In any event, she made a decision to get out of the relationship and that resulted in the events that you have pleaded guilty to.

5On that day, the victim and Mr Bond arrived at your address.  When Mr Bond went to open the door to get out of his car, he observed you running across the road in an aggressive manner holding a samurai sword above your shoulders pointing it at him.  You thrust the sword through the open driver's side window and it went towards the steering wheel.  You walked away from the car and verbally abused Bond and the other person, Scott, and the victim.  You yelled at the victim saying, "You’re just a fucking slut."

6Bond followed you into the front yard of the house and told you to calm down.  You filled a plastic bottle with water and then swung the sword at the bottle, which flew off into a bush and you said, "This would take some cunt's head off."  You went inside the house and Bond followed you.  Bond hid the sword inside the house.  He went to the toilet and whilst there, you went outside and walked up to Bond's car.  The victim was sitting in the back seat of the car on the right hand side at the time.  She locked the door, fearing for her safety.  You attempted to open the door, she was frightened, she said you had a terrifying look on your face.  You went to the left hand side of the car and opened the other rear door.  You sat in the back seat next to the victim.

7There was a struggle between you and the victim, in which she was trying to fight you off.  You then picked up the fuel container, which had been acquired previously, and poured petrol all over the victim.  You got out of the car, leaving her covered with petrol on the backseat.  She was crying.  A few minutes later, you returned to the car, attempted to pull her outside by grabbing her jumper.  She attempted to get out of the car backwards, you grabbed her by the jumper and pulled her back into the car.  You then said, "You want to make my heart burn, now you can burn, bitch."  You held the cigarette lighter to her chest, igniting the petrol.  Her hair, face and clothing immediately became engulfed with flames.

8On a subsequent search of the property, the police found the three credit cards, the subject of the proceeds of crime charge.

9The victim was taken to the Alfred Hospital in a critical condition.  She was placed in an induced coma for five days.  She was placed on a ventilator during this period in order to breathe.  She remained in intensive care for nine days.

10The report of Dr Jason Schreiber, a forensic clinician, in the prosecution opening.  It sets out in some detail the severity of the injuries to the victim.  It states at Paragraph 8, "There is no doubt that the victim would have died without the treatments in the hospital.  The injuries were life endangering.  The entity of inflicted injuries and wounds from a necessary medical and surgical procedures involve a vast body area, leaving only a small skin area unhurt.

11"Multiple complex lifesaving and urgent assessments, investigations and treatments were involved to stabilise the patient."  The report sets out inherent side effects, resulting from the burning and the medical procedures that the victim had to undergo.  The burn injuries were deep.  That is, partial and full thickness skin burns requiring complex surgery and skin grafting with skin harvesting from the patient's own body rendering it necessary to therapeutically wound more areas of skin that were initially not non-involved.

12Complications of the injuries themselves and the necessary treatments occurred, requiring more interventions.  The doctor said the protracted risk of future thrombosis, infections, immobility and of decreased immunological defence system is high.  She will remain scarred possibly to large areas of her body, including in sensitive areas such as the face, breasts and hands with protracted cosmetic and social implications.  The future functionality of her hands and limbs will be diminished.  Her future quality of life will be diminished.  She will require ongoing care in different mental and medical health areas.

13In Paragraph 7 of the opening, the doctor concluded that due to the nature and seriousness of her injuries and her long-term prognosis, the victim terminated her pregnancy.  Since discharged from hospital, she's had numerous outpatient appointments for rehabilitation and physiotherapy.  There is no victim impact statement.

14On your behalf, your counsel, Mr Lewin, provided written submissions and supplemented them with oral submissions.  He pointed to your age, your plea of guilty which was made at committal, after witnesses had been called for, but prior to them being called.  He submitted that you had expressed remorse and that you had favourable prospects of rehabilitation.  Although acknowledging that the offending was serious, he submitted that it could be distinguished from other offending in that it was spontaneous and not premeditated.

15He submitted the gasoline used was not purchased and available for the purpose for the infliction of serious injury, but was used opportunistically.

16I accept that submission in relation to the offending insofar as it refers to spontaneity and opportunism.  He drew my attention to the authorities in relation to sentencing youthful offenders.  He outlined your background.  You are 22 now, as you were at the time of the offending.  You have an older sister, who is aged 28.  Your parents separated when you were eight and you went to live with your mother.  You did not have much contact with your father until you were 20.  You grew up in the Carlton area and left school in Year 9.  You did two years as a bricklayer's labourer.

17You began using drugs, he told me, at around the age of 13 and that substantially increased when you became homeless at the age of 18.  Your drug of choice was the drug known as ice and at the time of this offending, he told me that you were using a gram a day.  You had gone to live with your father at the age of 20, following release from custody for previous offending.

18He submitted that you had shown remorse.  He referred to your plea of guilty.  He referred me to the statement of the victim.  He referred me to your attempts at the hospital to contact the victim or to find out how she was going.  In the references tendered to me, you have expressed remorse for your actions.  You suffered extensive burns to your arms and wrists.  You provided a letter to the court, detailing your remorse.  I accept on the basis of that material, that you have shown remorse.

19Mr Lewin submitted that you were acting under the influence of drugs at the time and you were acting irrationally.  He asked me to take into account the principles of totality and proportionality and submitted that in relation to the summary offences, I should consider concurrency.  He submitted that because of your age and the other factors that he put to me that I should impose a lower than usual non-parole period.

20In relation to rehabilitation, he pointed to your age, the large body of people in court, from your family and friends who are supporting you, and the fact that you have no prior convictions for violence.

21Sentencing reasons.  In sentencing you, I have to take into account a number of different factors.  First of all, I have to be of the view that imprisonment is the only sentencing option available in this case.  Your counsel did not submit otherwise and I agree.  Because of the seriousness of the offending, you must serve a sentence of imprisonment.

22I have to take into account the principle of general deterrence, that is, I have to impose a sentence that will deter other people from committing similar type offences.  As I expressed during the course of the plea, I find it hard to recall a more serious example of this type of offending in my 38 years in the criminal law.

23The courts have to send a message to the community that violence against women will not be tolerated under any circumstances.  The problems of differences in a relationship and the use of drugs such as ice in no way excuse the horrific violence that you inflicted on someone you supposedly cared for.  Can we open the newspapers on any day without an account of some man inflicting violence on a woman in a minor or major way?

24I made the comment before that it leads me to a conclusion that for some men, it seems like there is a war on women.  So I have to impose a sentence that sends a message to the community that this just will not be tolerated.

25Secondly, I have to take into account what is called specific deterrence.  That is, to deter you from doing it again.  You have numerous convictions, admittedly none for violence, but at the time, you were on bail and on a community corrections order.  Seemingly that was imposed to assist you to overcome your drug use.  It does not seem to have had any effect.  So although you are young, in my view, specific deterrence still has a role to play because of those factors.

26In addition, you have a number of convictions in relation to possession of weapons.  You seemingly have taken no notice of previous court appearances for it and armed yourself with a samurai sword here.  I have to express my denunciation.  That is, my opinion of your offending and I think I have done that.  I also have to consider the protection for the community.  Clearly, someone who has acted in the way that you did poses a risk to the community.  I have been provided with no psychiatric or psychological reports to explain your offending.

27On the other hand, I have to balance your age.  You are 22.  Your plea of guilty, has saved the witnesses from the trauma of a committal and a hearing before a jury, and as also it shows acceptance of responsibility by you for your actions.  As I have said, I have taken into account your remorse and you will be given the appropriate discount in respect of your plea of guilty.

28Your age is a factor that has weighed heavily on my mind, upon my first reading the depositions in this matter.  However, there must come a time when the circumstances of the offending push the age of the offending into the background.  In my view, this is such a case.  I would have imposed a heavier sentence than what I am about to if you had been older, but the sentence I am imposing is a substantial one, in any event.

29It is difficult to assess your prospects of rehabilitation.  As I have commented, you have been given chances before and do not seem to have accepted them.  This is your first instance of acting violently, but it is an horrific example of it.

30I have taken into account all of the matters that your counsel has put to me.  It was not a planned offence, it is something that occurred, but for you to act in such a way is incomprehensible.  As I said, I accept that you have remorse now and that at the time afterwards, you apparently tried to do something about stopping the fire.

31As you say in your own letter to me, "I feel the pain and shame in every bone in my body.  I feel that my punishment will be a lifetime for acting in such a cowardly manner.  If I could change time and go back to that night, I would not react the way I did but the damage is done."  The word cowardly is the correct word.

32Weighing up all those factors, including the matters I have to take into account under s.5 of the Sentencing Act and all the submissions made, including any I may not have referred to in these reasons. I have taken note of the different cases that were handed up to me. I sentence you as follows.

33On the charge of causing serious injury intentionally, I sentence you to a period of imprisonment of 14 years.  On Charge 8, the summary offence, I sentence you to a period of imprisonment of 12 months, six months of it to be served cumulatively with the Charge 1.  On summary Charge 9, 12 months, six months of that to be served cumulatively with Charge 8 and Charge 1 which makes a total of 15 years and I set a non-parole period of 11 years.

34I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment, always difficult to say what would happen after a jury trial, what was presented, but doing the best I can, of 18 years with a non-parole period of 15 years.

35MS PARKES:  Pre-sentence detention, Your Honour.

36HIS HONOUR:  .  Is it 241?

37MS PARKES:  It is 242, Your Honour.

38Pursuant to s.18 of the Sentencing Act, I declare that the time you have already served of 242 days be declared as part of the term of imprisonment that I have just imposed.

39Are there any other matters?

40MS PARKES:  No, Your Honour.

41MR LEWIN:  If Your Honour pleases, nothing further.

42HIS HONOUR:  Take him out please.

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