Enver Mehmet v The Queen

[2019] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0226

ENVER MEHMET	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA and TINNEY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2019
DATE OF JUDGMENT:	25 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 211
JUDGMENT APPEALED FROM:	DPP v Mehmet [2018] VCC 1535 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Unprovoked and ongoing attack on defenceless victim – Plea of guilty – Sentence of 2 years and 6 months’ imprisonment with non-parole period of 1 year and 6 months – Whether sentence manifestly excessive – ‘Situational’ offending – Concession from prosecutor that combination sentence of less than 12 months’ imprisonment and Community Correction Order appropriate – Evidence of remorse – ‘Fair to good’ prospects of rehabilitation – Severe and sustained impact on victim – Sentencing judge not bound by prosecutor’s concession – Sentence within range – Leave to appeal refused – Barbaro v The Queen (2014) 253 CLR 58.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Tony Hannebery Lawyers
For the Respondent	Mr P L Bourke	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
TINNEY AJA:

1. On 31 May 2018, the applicant, now aged 29, pleaded guilty to one charge of recklessly causing serious injury, an offence which carries a maximum sentence of 15 years’ imprisonment.

1. The applicant was sentenced on 18 September 2018 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing serious injury [s 17 of the Crimes Act 1958]	15 years	2 years and 6 months	N/A
Total Effective Sentence			2 years and 6 months’ imprisonment
Non-Parole Period:			1 year and 6 months
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:			4 days
6AAA Statement: 3 years and 3 months with a non-parole period of 2 years.

1. The applicant now seeks leave to appeal against sentence.  He relies upon a single ground:

The sentence imposed on charge 1, and the non-parole period, was [sic] manifestly excessive.

Particulars:

Insufficient weight was given to:

a)        The age of the applicant and his limited prior history;

b)        The circumstances in which the offending occurred;

c)        The application of the Verdins principles;

d)        Personal and mitigating factors;

e)        The applicant’s prospects for rehabilitation;

f)The evidence given by the applicant during the plea and remorse.

Background facts

1. The applicant lived with his father, Suleyman Mehmet, and his step-mother, Sergul Mehmet, in Lalor, a suburb in the north of Melbourne.  The victim of the offence, Husnu Huseyin, a member of the local Turkish community, was known to the applicant’s family.  He would attend the applicant’s family home on a regular basis, and do paid gardening maintenance work.

1. On 23 March 2017, Huseyin had done some mowing and gardening at the applicant’s family home.  He spoke with the applicant for about 20 minutes while he was packing up.  The applicant helped him to pack away his things.  Thereafter, Huseyin spoke with the applicant’s father in the lounge room of the home.  The applicant’s father indicated that Huseyin owed him some money for work that had been paid for in the previous month, but was not completed.  Huseyin denied that this was the case.

1. The applicant’s father then told Huseyin that he would pay him this time, but that Huseyin was not to come back to the family home.  Huseyin was upset as he walked out towards his car.

1. At about 6.40 pm, the applicant’s step-mother stepped out onto the front veranda, walking towards Huseyin’s car, and asked him if he had change for a $100 note.  He replied that he did not.  She then went back inside to get some cash in smaller notes in order to be able to pay him.

1. At that point, the applicant called out ‘Dad, Dad.’  Both Huseyin and the applicant’s step-mother ran toward the house.  The applicant’s father was lying on the ground, just inside the rear door.  He was unconscious.

1. There was evidence, including CCTV footage, which suggested that the applicant’s father had fallen from his mobility scooter, and that the applicant may have seen that happen.  Huseyin was out in front of the house when the fall occurred.  As indicated, Huseyin ran back into the house, entering through the back door.

1. At that stage, the applicant was not in the room where his father had fallen.  The CCTV footage indicated that he had left his distressed father, and gone through the house to the front veranda.  He had then gone around the driveway, and come back into the house from the rear.

1. The Registrar’s Neutral Summary describes what next occurred:

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

Mr Huseyin recalled that he was kicked during the assault but recalled little else until he woke up in hospital.  The CCTV footage indicated that the assault commenced at around 6.41 pm.

That assault commenced inside the back door.  The room was not under CCTV surveillance, however the applicant was seen throwing punches, entering the room from the outside.  Shortly after Mr Huseyin crawled out of that room to the back porch area while he was being pursued by the applicant who continued to kick and punch Mr Huseyin.

The applicant’s mother witnessed the assault and recalled that the applicant was punching Mr Huseyin.  Mrs Mehmet confirmed that when she arrived in the back room her husband was on the floor and appeared unconscious.  A short time later Mr Huseyin had attended at the back room to assist the applicant’s father and stepmother.

Mrs Mehmet, in evidence, stated the applicant came into the back room and immediately started assaulting Mr Huseyin.  Mrs Mehmet yelled at the applicant to stop.  While his father was on the floor, the applicant ‘thought he would die’, and continued to assault Mr Huseyin.  He followed Mr Huseyin out of the back room as he was crawling and scrambling to get away.

The applicant pursued Mr Huseyin, kicking and punching him.  Mr Huseyin held his hands up in a position of surrender.  The applicant continued with his assault.  Mr Huseyin then got up and escaped out the rear doorway into the driveway.  The applicant pursued him and chased him onto the front veranda.

The applicant again assaulted Mr Huseyin by punching and kicking him.  Mr Huseyin was either on the ground or crouched down, offering no resistance.  It was not until a neighbour intervened by standing between the applicant and Mr Huseyin that the assault ceased.

1. After the applicant had ended his attack, the neighbour accompanied Huseyin back to his car.  Somehow, Huseyin was able to drive away.  He drove for about two kilometres, getting about halfway home, when he suddenly pulled over, and sounded his horn.  A woman came to his aid.  She could see that he was sitting in the front seat with a bloodied face, and was screaming.  She switched off the ignition, and called an ambulance.  Huseyin was taken to the Northern Hospital.

1. At about 8.25 pm, the applicant, on the advice of his brother, went to the Epping Police Station and turned himself in.  Police subsequently obtained the CCTV footage from the family, and noted that it had captured the incident.

1. When interviewed, the applicant said that he saw his father and Huseyin arguing about the payment for the gardening work that had been done.  Huseyin walked off towards his vehicle, but soon returned to the house.  The applicant then saw his father lying on the ground, with Huseyin standing nearby.

1. The applicant told police that he thought that his father was in danger and that he had to protect him.  He said that he ‘… just hit [Huseyin] a few times’, after which he told him to leave.  He agreed that he had struck Huseyin with a closed fist to the face, but insisted that he had only hit him ‘two or three times.’  He acknowledged that Huseyin had, at no stage, fought back when the applicant had struck him.

1. Huseyin was treated at the Northern Hospital for various injuries.  He spent 12 days in hospital, seven of them in intensive care.  On 30 March 2017, seven days after the assault, a forensic medical examination concluded that Huseyin had sustained the following injuries:

·tenderness and bruising to the head and neck;

·a laceration to the left-side of the inner upper lip;

·multiple abrasions to the left-side of the chest;

·bruising to the back and buttocks;

·bruising to the left and right upper arms; and

·bruising to the lower-left leg, behind the knee.

1. When Huseyin was admitted to hospital, his blood pressure and heart rate were merely mildly elevated.  His right cheek was swollen, and he complained of significant pain.  He had blood on his face and right nostril, as well as pain to the ribs.  He had general bruising to the nose, and across the chest.

1. On the day after his admission to hospital, Huseyin became hypoxic (a condition involving shortage of oxygen), and suffered from tachypnoea (rapid breathing) and tachycardia (fast heart rate).  He was admitted to the intensive care unit.  Further investigations revealed that he was suffering from a right clavicle fracture and right anterior rib fractures.  He was ultimately intubated and ventilated.  Further investigations revealed that his lungs had collapsed and that he had sustained acute kidney injury and blood loss.  It was not until five days later that he began to breathe on his own.

1. As at 18 October 2017, Huseyin was described as still being ‘mentally traumatised’, and as suffering from anxiety and panic attacks.  He was also suffering significant chest pain, rib pain, and right shoulder pain.  He required constant painkillers.  An update on his condition in 2018 noted that he continued to suffer pain around the area of the rib fractures and the left shoulder.  He also required ongoing management of anxiety and depression.  That involved psychological and psychiatric referrals.  He had difficulty in sleeping as he suffered from bad dreams and panic attacks.  He also had problems managing pain from the injuries.  In short, the applicant’s assault upon Huseyin had a significant and lasting impact on his wellbeing.

The plea hearing

1. Counsel who appeared on behalf of the applicant on the plea referred to various psychiatric and psychological reports tendered in support of the submission that he should receive the full benefit of a Verdins[1] discount.  It was said that at the time of the offending, his ability to exercise reasonable judgment and control had been compromised.  It was also said that the applicant’s own post-traumatic stress disorder symptoms would likely be aggravated as a result of incarceration.

   [1]R v Verdins (2007) 16 VR 269 (‘Verdins’).

1. It was submitted that the applicant had shown remorse, and that he should be given the benefit of an early plea.  In relation to rehabilitation, it was submitted that the applicant had responded well to treatment, and was unlikely to reoffend.  The applicant’s mother gave evidence on his behalf, as did his older brother.  It was submitted that both specific and general deterrence should be moderated by reason of the applicant’s lack of prior offending, and what was said to be the ‘unique situation’ of his background.

1. The reference to the applicant’s ‘unique situation’ involved his having been physically abused by his mother as a young child.  As a result, he had suffered from major depressive disorder and post-traumatic stress disorder.  He had been treated by a psychologist.  That psychologist’s opinion was that, at the time of the commission of this offence, the applicant had been ‘overwhelmed by [his] childhood experiences.’  In addition, a psychiatrist had diagnosed the applicant with separation anxiety disorder, generalised anxiety disorder and social anxiety disorder.

1. Finally, it was submitted that, having regard to the applicant’s low risk of reoffending, a Community Correction Order (‘CCO’), without any term of imprisonment, would be the appropriate disposition.

1. The Crown accepted that a combination sentence of a period of imprisonment, followed by a CCO, ‘would be appropriate’ in the circumstances.  Self-evidently, that concession meant that a term of no more than 12 months’ imprisonment, coupled with a CCO, would be sufficient.

1. In relation to Verdins, the Crown conceded that although any sentence of imprisonment could be moderated on the basis of reduced moral culpability, the fact that the offending had been protracted, and involved the infliction of very serious injuries, suggested that comparatively little weight should be accorded to those considerations.

1. Finally, the Crown did not accept that the plea had been offered at the earliest opportunity.  It did, however, accept that it had utilitarian value.  Nonetheless, it was submitted that community protection and denunciation of the applicant’s conduct remained important sentencing factors.

Submissions before this Court

1. On behalf of the applicant, it was submitted that a sentence of 2 years and 6 months’ imprisonment for a young man who had no relevant prior convictions was manifestly excessive.  The offending was said to have been entirely ‘situational’, and therefore, the circumstances that gave rise to it were highly unlikely to arise again in the future.  It did not involve the use of alcohol or drugs.  The assault upon Huseyin was not, in any way, premeditated.  It was simply that the applicant’s father had collapsed shortly after an argument with Huseyin, and as a result, the applicant became angry and violent.  In his own mind, he believed that Huseyin was responsible for what he thought, at the time, to be a fatal heart attack suffered by his father.

1. It was further submitted that the sentencing judge had plainly given insufficient weight to Verdins principles 5 and 6.  In particular, it could be inferred that imprisonment would be especially onerous for the applicant and there was clearly a real risk that his condition would deteriorate in custody.  It was submitted that the evidence concerning Verdins ought to have led to a significantly lower sentence than that imposed in this case.  A combined sentence of some months’ imprisonment, with a CCO, would have been appropriate and within range.  It was noted that even the Crown had accepted that this was so.

1. Finally, it was submitted that there was powerful evidence before the sentencing judge of remorse.  The applicant had taken the unusual step of giving evidence during the plea.  He explained that his father had undergone heart surgery only a week or so before the day of the incident.  He said that he had not been in his right state of mind when he launched his attack upon Huseyin.  He added that he was sorry for what had happened, and apologised for it.

1. The sentencing judge had concluded, despite this evidence, that the applicant had ‘little empathy’ for Huseyin.  He found that the applicant’s level of remorse was limited.  It was submitted before this Court that this finding was unduly harsh, and certainly ought not to have been made.

1. The Crown, in its written case, submitted that both the sentence and non-parole period were within range.  The attack upon Huseyin was a serious example of recklessly causing serious injury.  The assault was vicious and cowardly.  It persisted for some time, and took place within three separate areas around the house.  The victim was clearly unable to defend himself, and had offered no resistance.  Yet, he was punched and/or kicked between 10 or 20 times.  The attack only came to an end when, fortunately, a neighbour intervened.  The effects upon Huseyin were significant and ongoing.

1. As regards Verdins, the Crown submitted that the sentencing judge took into account all of the matters raised on behalf of the applicant.  The assessment that his prospects of rehabilitation were ‘fair to good’ had been well open.

1. As regards remorse (and the separate, but cognate, concept of regret), it was submitted that much of the applicant’s evidence regarding these matters came as a response to leading questions.  The sentencing judge was fully entitled to form the view that there was limited evidence of remorse, and that the applicant displayed little genuine empathy for the victim.

1. With regard to the concession made by the prosecutor on the plea that a CCO combined with a term of imprisonment of 12 months or less would be ‘appropriate’, it was submitted that the sentencing judge was in no way bound to give effect to that submission.

1. In short, it was submitted that this was a significant, unprovoked and cowardly attack upon a non-resisting and highly vulnerable victim.  All relevant mitigating factors had been given appropriate weight.  The sentence was reasonably open, and appropriate in the circumstances.  Accordingly, leave to appeal should be refused.

Conclusion

1. In our opinion, the Crown’s submissions should be accepted.  The applicant inflicted a terrible beating upon the victim, with ongoing consequences.  This was an unprovoked and cowardly attack upon an older man, who was defenceless and vulnerable.

1. The sentencing judge was entitled to conclude that there was only limited evidence of remorse, and that the applicant displayed little real empathy for his victim.

1. It may have been preferable had the prosecutor on the plea not submitted that a sentence of 12 months or less, coupled with a CCO, would be ‘appropriate.’  A submission couched in those terms comes perilously close to violating the rule laid down by the High Court in Barbaro v The Queen,[2] to the effect that the prosecution should not be permitted to make a submission to a sentencing judge, on a plea, as to the bounds of the available sentencing range.  In effect, the prosecutor on the plea had urged a sentence of imprisonment of less than 12 months’ duration, coupled with a CCO.

   [2](2014) 253 CLR 58.

1. It is one thing to assist a sentencing judge to avoid error by indicating that a particular disposition would not be reasonably open.  It is quite another to nominate a range, or a particular figure, and describe that as ‘appropriate.’  The sentencing judge correctly understood that this submission in no way bound him in the exercise of his sentencing discretion.  He decided that a period of 12 months’ imprisonment would not serve the needs of just punishment and denunciation.  He was perfectly entitled to come to that conclusion.

1. In our view, the sentence imposed was moderate, and clearly within range.  All relevant mitigating factors were taken into account and given due weight.  We would accordingly refuse leave to appeal.

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