R v Afacan - [2015] VSC 755

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0044
S CR 2015 0043
S CR 2015 0080

Between:

THE QUEEN
and
TUGAY AFACAN	First Accused
and
SANAR GHANIM	Second Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2015
DATE OF SENTENCE:	18 December 2015
CASE MAY BE CITED AS:	R v Afacan & Ghanim
MEDIUM NEUTRAL CITATION:	[2015] VSC 755

---

CRIMINAL LAW – Sentence – Intentionally causing serious injury – Possessing firearm whilst prohibited – Reckless conduct endangering life – Cultivation of narcotic plants – A and K in dispute over remarks A’s sister made to others about K – K threatened to snap A’s sister’s neck – A, in possession of a sawn-off shot-gun while prohibited, fired the gun at K, causing him serious injury – G encouraged A to fire again, which A did, the shot striking K’s car as he fled – G grew ten cannabis plants for friend – Pleas of guilty – Remorse – Prior convictions – Good or very good prospects of rehabilitation – A committed offences while on parole – A serving balance of parole sentence at time of sentence – G served 41-day sentence for another matter while awaiting trial for present offences – Totality – A sentenced as “serious offender” on intentionally causing serious injury – Sentencing purposes of general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation all relevant – A sentenced to total effective sentence of five years’ imprisonment with non-parole period of three years – G sentenced to total effective sentence of two years and ten months’ imprisonment with non-parole period of 17 months – Crimes Act 1958 (Vic), ss 15, 16 & 22; Firearms Act 1996 (Vic), ss 3(1) & 5(1); Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 72B; Sentencing Act 1991 (Vic), ss 5, 6D(a), 6E, 15 & 16(3B).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Hassan	Office of Public Prosecutions
For Mr Afacan	Mr S Tyrrell	Stephen Andrianakis & Associates
For Mr Ghanim	Mr J McQuillan (plea) Mr S Parker (further plea)	Theo Magazis & Associates

HIS HONOUR:

Overview

It is sometimes said that violence begets violence. Perhaps it has always been so. But, if this case is anything to go by, it seems to be getting worse. Had either one of main protagonists in these events been prepared to turn the other cheek, nothing too serious would have occurred. Would it were so.

And so it was that a warning by Tucge Afacan to her friends about the bad character of Serkan Kala caused great offence and led him to utter gravely threatening words about Ms Afacan to her brother Tugay Afacan, which in turn caused Mr Afacan even greater offence and ultimately led to actual violence by him and dangerous behaviour by another towards Mr Kala.

In particular, on 3 November 2014, Mr Afacan took a sawn-off shot-gun to a public street…

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 Afacan

Details

AGLC: R v Afacan [2015] VSC 755
Case: [2015] VSC 755
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of R v Afacan involved two defendants, A and G, who pleaded guilty to various charges including recklessly causing serious injury, possessing a firearm while prohibited, and cultivating narcotic plants. The incident stemmed from a dispute between A and K, where K threatened A's sister, prompting A to fire a sawn-off shot-gun at K while prohibited from possessing firearms, causing serious injury. G, who was present, encouraged A to fire again, resulting in a shot striking K's car as he fled. Additionally, G admitted to cultivating ten cannabis plants for a friend. The court was tasked with determining an appropriate sentence for both defendants considering their respective roles in the offences and their prior criminal histories.

The primary legal issues the court addressed were the appropriate sentencing principles to apply, given the serious nature of the offences and the defendants' criminal backgrounds. The court had to balance the principles of general and specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation in determining the sentences. The court also had to consider the totality principle, ensuring that the sentences were proportionate and did not unjustly overlap with any sentences the defendants were already serving. The prior convictions of both defendants, their prospects of rehabilitation, and the fact that A committed the offences while on parole were significant factors in the sentencing process.

In delivering its judgment, the court considered the gravity of the offences and the significant risk posed to public safety. A was sentenced as a serious offender due to the intentional nature of causing serious injury. The court acknowledged A's remorse and good prospects of rehabilitation but also emphasised the need for specific deterrence and denunciation. A was sentenced to a total effective term of five years' imprisonment with a non-parole period of three years. G, who played a lesser role in the offences, was sentenced to a total effective term of two years and ten months’ imprisonment with a non-parole period of 17 months. The court applied the totality principle by considering the sentences already served by G and the ongoing parole sentence for A. The court concluded that the sentences appropriately reflected the seriousness of the offences and served the broader purposes of the criminal justice system.

The final orders of the court included the sentences for A and G as outlined above, ensuring that the sentences reflected the principles of sentencing and the totality of the defendants' criminal conduct.

Orders