R v Acikoglu - [2002] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 134 of 2001

THE QUEEN
	v.
MUSTAPHA ACIKOGLU

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JUDGES:	WINNEKE, P., BUCHANAN, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 July 2002
DATE OF JUDGMENT:	15 July 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 104

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Criminal law - Sentence - Murder - Plea of guilty - Sentence of 18 years with non-parole period of 14 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	V. Caltabiano

WINNEKE, P.:

On 2 April 2001 the appellant Acikoglu was arraigned before the Supreme Court on one count of having murdered Adalet Demir on 31 August 1999. The murder occurred in the deceased's house in Reservoir. The appellant, who has no previous convictions, was sentenced on 24 May 2001 to a term of 18 years' imprisonment, and was ordered to serve a minimum term of 14 years before becoming eligible for parole. At the date of the murder, the appellant was approximately 40 years of age.

Pursuant to leave granted by this Court in February of this year, the appellant has appealed against the sentence imposed on a variety of grounds which assert error on behalf of the sentencing judge in the exercise of his discretion. Before turning to those grounds it is desirable to recite - briefly - the circumstances which surrounded the murder.

The appellant and the deceased are each of Turkish origin. They had apparently known each other since the early 1990s when the appellant came to this country with his wife to live. His wife's parents apparently lived and worked in the district of Shepparton and that is where the appellant and his wife had first settled. It seems that the appellant was unhappy in that arena and took himself to Melbourne where, in his view, there were better opportunities and facilities for making an income. It was during this absence from his wife that a relationship was formed between him and the deceased, who, although separated from her husband, was still married and had four young children. Despite the emergence of the relationship, it would seem that the appellant remained attached to his wife, who ultimately came from Shepparton to join him in Melbourne. By the time of the murder there were two young children of the appellant's union with his wife. It would seem, however, that notwithstanding that reunion, the appellant remained attached to the deceased, with whom he continued to maintain a relationship notwithstanding her (the deceased's) husband's opposition to it. The consequence of the "double lives" and the duplicity which it involved ultimately proved disastrous. It would seem that the deceased asserted her commitment to the appellant but, for a variety of understandable reasons, was not prepared to terminate her own marriage or to follow through with the arrangements which the appellant clearly had in mind for them. This led to what might be described as…

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 R v Acikoglu

Details

AGLC: R v Acikoglu [2002] VSCA 104
Case: [2002] VSCA 104
Decision Date: 15 July 2002

CaseChat Overview and Summary

The appellant was convicted of the murder of his wife and was sentenced to 18 years imprisonment with a non-parole period of 14 years. The appellant appealed against the length of his sentence. The primary judge considered the appellant's guilty plea, the brutality of the murder, and the appellant's lack of remorse. The legal issues for the court were whether the sentence was manifestly excessive and whether the primary judge erred in failing to give sufficient weight to the appellant's guilty plea.

The court noted that the appellant had pleaded guilty to the murder of his wife, which was a significant mitigating factor. However, the court also noted that the murder was brutal and that the appellant had shown a lack of remorse. The court held that the primary judge had given appropriate weight to the appellant's guilty plea and had not erred in the length of the sentence. The court held that the sentence was not manifestly excessive and dismissed the appeal.

The court's reasoning was that the primary judge had considered all relevant factors in determining the sentence and had given appropriate weight to the appellant's guilty plea. The court held that the primary judge had not erred in failing to give greater weight to the appellant's guilty plea and that the sentence was not manifestly excessive. The court dismissed the appeal and upheld the sentence of 18 years imprisonment with a non-parole period of 14 years.

Orders