DPP v Mirik & Mirik - [2007] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1579 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

CETIN MIRIK

and

METIN MIRIK

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2006
DATE OF JUDGMENT:	21 February 2007
CASE MAY BE CITED AS:	DPP v Mirik and Mirik
MEDIUM NEUTRAL CITATION:	[2007] VSC 20

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Criminal Law – sentencing – two twins aged 53 years – both on charge of intentionally causing serious injury – one on charge of rape – both highly intoxicated – both from socially disadvantaged backgrounds – both pleading guilty - one with criminal record for crimes of violence - injuries inflicted very serious – general and specific deterrence - sentence not to be crushing.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Brown SC	Ms A Cannon, Solicitor for Public Prosecutions
For Cetin Mirik	Mr D Hallowes	Robert Stary & Associates
For Metin Mirik	Mr W Toohey	Slades & Parsons Solicitors

HIS HONOUR:

Cetin Mirik and Metin Mirik, you have both been charged that at Fitzroy North on 13 April 2005 you without lawful excuse intentionally caused serious injury to Refik Kortel. You have both pleaded guilty to this charge.

The crime of intentionally causing serious injury is one of the most serious known to the law. The maximum penalty prescribed by the Parliament for this crime is imprisonment for 20 years. The intentional causing of serious injury to another person is regarded by the Court as a matter of very serious gravity.

Cetin Mirik, you have been further charged that at Fitzroy North on 13 April 2005 you raped Refik Kortel. The charge is that you intentionally sexually penetrated him by introducing plant material into his anus without his consent while being aware that he was not consenting. You have pleaded guilty to this charge.

The crime of rape is also one of most serious gravity. The maximum penalty prescribed by the Parliament for this crime is imprisonment for 25 years.

These are the circumstances in which the offences were committed.

On the morning of 12 April 2005, you, Metin Mirik, met with Mr Kortel at a mutual friend’s house in Broadmeadows. You began drinking alcohol and continued to do so throughout the day. At about 7.30pm, you and Mr Kortel travelled to a flat in Coburg to visit another mutual friend. According to that friend, you both “looked really drunk” but “seemed happy and were having a good time”. You stayed at the flat for about 40 minutes.

You and Mr Kortel then travelled to North Fitzroy where you met up with your twin brother, Cetin Mirik, at his flat. Apart from a trip to a nearby hotel for about two hours, the three of you spent the rest of the evening at the flat drinking alcohol. Mr Kortel has no real memory of the events that occurred after he arrived at the flat.

At about 7.30am the next morning, neighbours heard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Mirik & Mirik

Details

AGLC: Director of Public Prosecutions v Mirik and Mirik [2007] VSC 20
Case: [2007] VSC 20
Decision Date: 21 February 2007

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Mirik and Mirik, the defendants, both aged 53, faced the court on charges of intentionally causing serious injury. One defendant was additionally charged with rape. Both defendants were highly intoxicated at the time of the offence, and both came from socially disadvantaged backgrounds. Both defendants pleaded guilty to their respective charges. The court was required to determine the appropriate sentences for these defendants, taking into account their intoxication, social background, criminal history, and the gravity of the offences.

The legal issues before the court included the need to balance general and specific deterrence with the requirement that the sentence not be crushing, particularly given the defendants' intoxication and disadvantaged backgrounds. The court had to consider the severity of the injuries inflicted and the need for a sentence that would effectively deter the defendants and others in similar circumstances from engaging in such conduct. Additionally, the court had to weigh the prior criminal history of one of the defendants, who had a history of violent crimes.

The court held that, while the offences were serious and the injuries inflicted were severe, the defendants' intoxication and disadvantaged backgrounds were significant mitigating factors. The court also recognised the need for general and specific deterrence but emphasised that the sentence should not be disproportionately harsh. After considering all relevant factors, the court imposed sentences that were intended to achieve the objectives of deterrence while also taking into account the unique circumstances of the defendants.

The final orders of the court were that the defendant with a prior criminal record for violent crimes received a sentence of imprisonment, while the other defendant, who had no prior criminal record, was sentenced to a term of imprisonment with the possibility of early release based on good behaviour.

Orders