R v Alioglu
[2013] VSC 179
•24 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 125 of 2012
| THE QUEEN |
| v |
| RESSIT ALIOGLU |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2013 | |
DATE OF SENTENCE: | 24 April 2013 | |
CASE MAY BE CITED AS: | R v Alioglu | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 179 | |
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CRIMINAL LAW – Intentionally cause serious injury – Recklessly cause serious injury - Attack on partner – Child injured defending her mother from attack – estranged partners – intervention order in place – Previously convicted for murder of wife and sentenced to death.
Sentence: Total 14 years – Minimum 11 years 6 months.
Definition of serious violent offender in this situation – Not a serious violent offender for purposes of sentence – S 6D of the Sentencing Act 1991 considered – R v Bariska [1989] VR 425 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams S.C. | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr G Hughan | Robert Stary Lawyers |
HER HONOUR:
Ressit Alioglu you have pleaded guilty to one count of intentionally causing serious injury to Mulyani Chodir and one count of recklessly causing serious injury to Daniela Krasser, her daughter. At the time of this offending you were aged 55, Mulyani Chodir was aged 42 and Daniela Krasser was aged 9.
The maximum penalties for these offences are 20 years imprisonment for intentionally cause serious injury and 15 years imprisonment for recklessly cause serious injury.
You have a number of prior convictions, three of which are of particular relevance. On 19 September 1981 you were fined $75 on two counts of stealing at the Perth Court of Petty Sessions, which is not a particularly relevant prior offence. At the Perth Supreme Court of West Australia on 12 July 1984 you were convicted of wilful murder and sentenced to death. At the Sale Magistrates Court on 9 January 2001 you were convicted of unlawful assault and without conviction you were fined $500. At Dandenong Magistrates Court on 9 September 2004 you were convicted of knowingly dealing with the proceeds of crime, using an unregistered motor vehicle, fraudulent use of registration label and driving a motor vehicle without a licence, you were fined $950 as an aggregate fine and suspended from driving for a month. At Dandenong Magistrates Court on 22 May 2008 you were convicted of one count of theft and placed on a good behaviour bond. At Dandenong Magistrates Court on 8 September 2009 you were convicted of recklessly causing injury and unlawful assault and sentenced to an aggregate term of one months imprisonment, wholly suspended for 12 months. The matters of significance are the wilful murder in 1984, the unlawful assault in 2001 and the recklessly causing injury in 2009. Each of those offences related to injuries inflicted upon your then partner or more particular your then estranged partner. I shall deal with the particulars of those offences shortly.
You met Mulyani Chodir in approximately 2008. She is an Indonesian woman, aged 42, who was born in Indonesia. You are a Turkish man who was born in Greece to a Turkish family near the border with Turkey. You met when she caught the train to English classes, and although English was your only common language and a language in which you both have limited ability, you became involved with each other romantically, over a period of time, and on 18 June 2009 Mulyani Chodir gave birth to a daughter Naura. At no point did you actually live with Mulyani Chodir, although it is clear that you would spent a great deal of time at her premises, but you stayed with friends in different locations. Mulyani Chodir lived at Unit 1, 53 William Avenue, Dandenong South. Initially before the birth of Naura she lived there with just her daughter Daniela Krasser. Mulyani Chodir had been married to Daniela’s father and they moved to Australia in January of 2007, he died only three weeks later.
Your relationship with Mulyani Chodir, who appears to be an observant Muslim woman, was initially good and promising, but shortly after she became pregnant the relationship deteriorated. Your problems with alcohol resurfaced, as well as your gambling issues and you started to hit Mulyani, on occasions, this was in late 2008 and early 2009. A particular example of this can be given that relates to one of your prior convictions, being the assault in September of 2009, that offence occurred on 28 January 2009 in the following circumstances. Mulyani Chodir, then approximately four months pregnant, and her daughter Daniela, who was aged approximately six years at that time, went shopping at Parkmore Shopping Centre, Mulyani rang you to come and pick them up, you did not appear and they commenced walking home. You arrived a short time later, picking them up. When they got in the car you started screaming and swearing at Ms Chodir asking where she had been. You were described as being very, very angry. You stopped the car and you punched Ms Chodir in the mouth and slapped her across the face. The child Daniela was trying to stop you from hitting her mother and she got between you. She was also yelling at you to stop, you then hit her in the face. As I said she was six years old. They both got out of the car and ran away. They were helped by passers by and they were taken to the Springvale Police Station. Mulyani Chodir received injuries to her lip and her nose and you pleaded guilty to the assaults, being one related to each of Mulyani Chodir and Daniela Krasser on 8 September 2009.
Your behaviour was sporadic but it did not improve during the period 2009 to 2011, with Ms Chodir ringing the police on numerous occasions as you became drunk, started yelling at her, pulling her hair, slapping her and behaving in an inappropriate manner. You have previously threatened to kill all of them, including yourself, when you have been alcohol affected.
An incident occurred on 29 October 2011, when you had turned up at the house of Ms Chodir so that you could see your daughter Naura, you had been drinking alcohol and you continued to do so, becoming more intoxicated and more abusive. Fortunately, only in a verbal manner at that stage. It was the nine year old child Daniela who became scared of your behaviour and rang Triple 000. Police came, removed you and took you to your own premises in Noble Park, but, as a result, an intervention order was taken out against you on 31 October 2011. That intervention order prohibited you from drinking alcohol, or being drunk at Mulyani Chodir’s house, and from abusing Ms Chodir or either of the children.
On 9 December 2011 and the 10 December 2011, you breached the intervention orders by attending where Mulyani was, in an abusive and intoxicated condition. As a result, on 19 December 2011 the intervention order was varied. It ordered you to stay away from Mulyani Chodir and to not commit any family violence upon her.
Initially it seems you did comply with the order, but over time you started to ignore the intervention order. You would come to her house every day, bang on her door and threaten her, if she didn’t let you in. People in the area were more than willing to attest to your behaviour during that time, being March to April 2012.
The circumstances of your offending are that on 10 April 2012 you went to the home of Mulyani Chodir, the only person there was the child Daniela Krasser who was then aged nine. Ms Chodir and your daughter Naura had gone to the nearby milk-bar to get some chips. Daniela was frightened and did not wish to open the door, so she told you where her mother was and you walked to the milk-bar and found them. You followed them home and into the house, immediately making yourself at home, you sat down and commenced eating chips with the children. Within a short time, you commenced talking very unpleasantly about Daniela Krasser’s father and she became quite upset and yelled at you not to do so. When she did this, you grabbed her by the arms, and threw her into a cupboard. Mulyani Chodir went and stood in front of Daniela, to protect her, all the time yelling at you to get out and threatening to call the police. All three of you were in the kitchen area, just near the sink. Your daughter Naura was a couple of metres away in front of the coffee table.
There is a dispute as to whether you obtained a knife from the drawer and stabbed Ms Chodir, prior to Daniela Krasser stabbing you with a different knife, or if you stabbed Ms Chodir with a knife that you pulled out of your back and did not obtain a separate knife. Your counsel submitted that you were not the person that produced the knife, and you stabbed Ms Chodir with the knife that Daniela had used already to stab you, for which he relied upon the statement of the child Daniela.
I have read the materials including the statements and depositions of Ms Chodir and the child Daniela Krasser and examined the other materials contained within the depositions, including the fact that two knives belonging to the premises of Ms Chodir were located on the nature strip of the premises, the location of blood within the premises, particularly at the sink area and near the drawers containing the knives, the different nature of the wounds inflicted upon the two victims to that of the wound inflicted upon you, and the lack of blood and DNA on one of the weapons in particular.
I am satisfied to the required standard that you first obtained a knife from the kitchen drawer and used it to stab Ms Chodir while she was near the kitchen sink; that is clearly demonstrated by the blood located in that area, together with the statement of Ms Chodir. That blood and its location cannot be explained by other injuries sustained by Ms Chodir. The fact that the child did not see that or was unaware of her mother being stabbed is not surprising, the amount of trauma inflicted on this child at that time, particularly her stabbing you in defence of her mother’s life, must have been horrific, not to mention her own injury that she sustained.
In my view all of the evidence points to you attacking Ms Chodir, her then stumbling away towards the front door area where you attacked her again. The location of the blood in the house belies any other explanation, particular the explanation that the only stabbings occurred at the front door and that you, Ms Chodir and the child Daniela ran out into the street after the infliction of the injuries. Whether you used one or two knives to stab Ms Chodir or Daniela is not relevant, nor is it relevant that blood was not found on both knives. It is not uncommon in my experience for the scientific analysis to produce no results, when it is undisputed that certain things have occurred. Equally, it is in my view of limited relevance whether you produced the knife or the child produced it to save, as she, or anyone else observing your behaviour would have viewed it, her mother’s life. On any view, it was you who used it aggressively, after that, on both Ms Chodir and her daughter.
Having made that finding, I will now return to the recitation of what occurred on this day.
After Ms Chodir stood in front of Daniela in the kitchen, to try to protect her, you have become exceedingly angry, unlocked the child safety lock on the kitchen drawer, which contained the sharp knives and withdrawn a kitchen knife. Daniela Krasser has yelled out to her mother ‘be carefully Mumma, Baba try to open the drawer to take the knife and kill you’. You also at that stage picked up the detachable handle of a frypan, which was near the kitchen sink, and you struck Ms Chodir to the top of her head numerous times. You punched her in the face and smashed her face into the cupboard and tiled floor, by grasping her hair and moving her head into contact with these objects. The child Daniela tried to protect her mother by pushing at you, you grasped her hair as well, holding the hair of Ms Chodir and Daniela Krasser in your one hand and hitting their heads on the tiled kitchen floor. They were attempting to stop you getting a knife from the drawer. Ms Chodir lay on the floor in the kitchen somewhat dazed as a result of your assault upon her and she was begging you to stop. You removed your tee-shirt, you grabbed her around the throat with one hand, choking her, and punching her in the face with the other hand. She managed to struggle away from you, out of your grasp and tried to stand up. She then saw you holding a large knife, you stabbed her in the left thigh, which caused a serious laceration, and she was stabbed again, in her left wrist and just above her left knee.
Ms Chodir said she was unable to stand at that point and started to try to crawl towards the door to escape. The continuous flow of blood drops from her wounds, between the kitchen and the door, are evident in the photographs. She managed to reach the door and was trying to grab the doorhandle, when she became aware that you were behind her. You have chocked her and stabbed her in the back area. Daniela Krasser has meanwhile taken a knife from the drawer and stabbed you in the back, to try and protect her mother from your assault. You have pulled the knife out of your back and then held Daniela Krasser by her right arm and using a knife sliced her arm from the elbow to the wrist. You yelled out in pain when you were stabbed and, after injuring Daniela Krasser, you then stood up, opened the front door, stepped over Ms Chodir, handing her one of the knives that you had used and then went seeking treatment for your injuries.
A second knife was also found on the front lawn. You went to the next door neighbour to seek help and the child, Daniela Krasser, collected her younger sister and helped her mother, guiding them up the street and eventually flagging down a passing car. You were all taken to hospital. Daniela Krasser to the Royal Children’s Hospital, where she was treated for a substantial laceration to her arm, and bruising and swelling to her left eye. Ms Chodir sustained four stab wounds, which required surgery , bruising and soreness to most parts of her body. You had a stab wound to your back, which included a punctured lung and also required surgery. Clearly the child, Daniela Krasser, believed that she and her mother were both going to die, which was not surprising in light of your previous threats to kill her and her mother, as well as the violence that you exhibited on this day.
You had been, in the last two months, in constant breach of the intervention order relating to Ms Chodir. You consistently called her, harassed her and she unfortunately was too afraid to deny you access to the house and your child, whenever you demanded it.
You were not interviewed until 18 April, as you remained in hospital until the 17th, due to you being quite severely injured at that time. You were interviewed with the assistance of a Turkish interpreter and gave a number of false responses, including that you were at the house as a result of the invitation of Ms Chodir; that she had in fact called you, asked you to come over, which is demonstrably untrue from the records of the telephone. You told the police that you thought it was the child who stabbed both you and her mother, and that it must have been the mother, who in fact, stabbed the child Daniela. You said they had tried to kill you and that your wife had become crazy and said, ‘where is the knife I’m going to kill you’.
In terms of the injuries suffered, firstly by Mulyani Chodir, there are two reports from the Royal Melbourne Hospital and one from the Victorian Institute of Forensic Medicine. The report from the Victorian Institute of Forensic Medicine attests to grazes, scratches, numerous bruises over the head, neck, back, buttocks, hand, forearm, thigh but was unable to make comment in respect of the stab injuries for which she had been treated. They were described in a report from Dr Anthony Barker, from the Royal Melbourne Hospital. He said physical examination revealed abrasions to the scalp and stab wounds to the left wrist, left posterior thigh, left anterior thigh and back at level of T2 to T4. Diagnosis was multiple deep stab wounds requiring explorative surgery in operating theatre. The opinion was, that the reported mechanism of injury was consistent with the injuries sustained, which were potentially life threatening injuries. In respect of Daniela Krasser, a report from Dr Adam O’Brien dated 29 June 2012, said on examination he found four areas of bruising on the head and face, a superficial abrasion on the neck, two diagonal red linear abrasions on the chest and on the volar surface of the right forearm, an 11cm superficial incised wound was present which appeared to have been made at an angle to the skin with the wound extending under the skin on the medial edge. Daniela was also examined by the Victorian Forensic Paediatric Medical Service on 12 April, two days after the offence, in respect of the injury to the forearm it was described as being on the flexor surface of the right proximal forearm, a 130mm linear laceration/incision which ended by changing into a continuous linear abrasion. The injury was curved medially at its distal point and was deeper in the distal area than at the more proximal point.
I have read the victim impact statements of Ms Chodir and Daniela Krasser and take their contents into account. None of the contents are surprising, they are if anything moderate and restrained, compared to many similar documents tendered in his court.
I do not have any statements as to your injuries suffered on the night, apart from your discharge summary which was tendered but contained very little information, but I accept that you received a serious injury, a deep penetrating stab wound to the back, which caused a punctured lung and that you were a number of days in hospital, with residual affects of some pain in the area of the wound and some numbness around the site of the wound.
In respect of your prior conviction in Seymour in 2001, that related to you punching your ex-girlfriend in the face when you were angry.
In relation to the sentence of death that was imposed for the murder in West Australia in 1984, the circumstances of the offending are chilling. You were married to the victim in that case. You had not been married a long time, approximately four years, and had separated as a result of there being misbehaviour on your part at a family function. You were working in restaurant in the city of Perth, you were upset about the breakdown of your marriage and had arranged to speak to your wife, arranging that she visit you at the restaurant where you worked at 6 o’clock that evening. She arrived, the two of you started talking in the kitchen area, which was at the end of a long passageway that led down from the restaurant. The weapon that was used by you was a weapon that was commonly left in the kitchen; it was a meat chopper. You argued with your wife whilst you were in the kitchen area and attacked your wife, she fled from you down the hallway, an empty hallway, with you in close pursuit chopping at her. There was massive blood spatter along the hallway area and her fingers, which you had chopped off during your pursuit of her, were found at various places within the hallway. She collapsed eventually, behind the counter in the restaurant and you were observed to be hacking at her, with this weapon, prior to her hitting the ground. When she was on the ground, you continued to attack her. A bystander grappled with you and pulled you off your wife and asked you what did you think you were doing. You said that you were going to kill her and returned to chopping at her, whilst she lay on the ground. The injuries that you inflicted on your ex-wife were, gross head injuries, an enormous gaping wound to the back of the neck, an even more enormous gaping wound on the shoulder, further wounds to the arms with literally the severing of a number of fingers from each of her hands, and a large gaping wound across the back of her thigh, all of which required extreme force to inflict them.
You fled the scene, went to the home of a friend and eventually told her what you had done. When arrested by the police, you also told them what you had done.
During the trial you gave evidence. You told the jury that your wife walked in and said to you that she was living with another man ‘on the bed, everywhere’. You said you lost control, you didn’t know what you were doing at that time, you didn’t know if you were chopping meat or cutting your wife. You told them you loved your wife, you couldn’t do things like that, you couldn’t kill your wife. You also told the jury that you couldn’t remember if you actually hurt her, you couldn’t remember anything after that, just remembered that she told you that she was living with another man and that you lost control.
The issue that went before the jury was whether you were provoked and whether you intended to kill your wife, as compared to the alternative of intended serious injury. The jury rejected provocation and rejected that your only intent was serious injury and they convicted you of wilful murder.
Your history, together with your behaviour on this occasion, demonstrates an attitude towards women that is unacceptable in our society. You have attacked three of your partners over your lifetime. One you have killed in a most despicable manner, displaying a complete loss of temper, inflicting injuries demonstrating an uncontrollable fury with her. In respect of Ms Chodir, you have over the time of your relationship with her been consistently violent and aggressive, when intoxicated. It is clear from the statements and evidence of Ms Chodir and her daughter Daniela that when sober these problems do not seem to be apparent. The offence in 2009 was against Ms Chodir and Daniele Krasser when she was aged only six years. She has clearly lived a life in fear of you, particularly in fear of what you would do to her mother. You appear to be self-centred and interested only in your own gratification and thoughts. You stabbed Ms Chodir four times, in the presence of your two-and-a-half year old daughter, and in the presence of Daniela Krasser a nine year old child. Your behaviour towards her mother by choking, punching and stabbing her, has caused this child to have to react in such a way that she stabbed you; a matter that will undoubtedly haunt her for a long time to come. When she did that to save the life of her mother, you grabbed her hand, held her arm and cut from her elbow to her wrist, a vindictive act. You are fortunate it was not a deeper wound. Despite that, she has a significant scar that causes her great discomfort, as it is often the subject of curiosity amongst her friends and playmates at school. She does not wish to discuss it and it causes her to withdraw. What you did to this child is unspeakable. What you did to her mother was evil.
Whilst I accept that you have pleaded guilty to intentionally causing serious injury, I am satisfied that Daniela’s brave actions stopped you from potentially causing even more serious damage to her mother. It is appalling that you, with your history of offending, resulting in the death of your first wife, have attacked your ex partner and your step-daughter in such a vicious manner, reminiscent of the attack upon your first wife. Equally your explanation blaming Ms Chodir and her daughter Daniela, as being the persons responsible for stabbing each other, as well as stabbing you, demonstrates a considered lack of remorse. Your crimes on this occasion are at the high end of offences of their nature.
I do have to take into account your personal circumstances. Your counsel submitted that the injuries inflicted, although serious injuries were not life-threatening or catastrophic in nature, which means the offences do not rate at the higher range of sentences for intentionally causing serious injury in relation to Ms Chodir. The injuries were indeed serious, they were not catastrophic and non-recoverable as neither Ms Chodir or her daughter ended up in a wheelchair or brain dead; as worst type of examples put to me. But that does not mean that the injuries were not truly significant injuries, they were, and that of course is only one of the factors that determines where the offending belongs, in terms of seriousness of the offence. In this case it is the circumstances surrounding the injuries, the manner in which they were caused, the presence of the children, the attack upon and the involvement of a nine year old, that elevate these to serious examples of the offences.
Your counsel submitted also that your time in custody will be more difficult for a number of reasons, including that you have a limited friendship group outside the prison and as a result, since you have been in custody no friends or family have been to visit you. Your family, as I understand it, are located in Turkey, so to a large degree that does not surprise, but I do accept that it will make your time in prison lonely ,which will always make the time that you are serving more difficult to endure. Equally, you have been assaulted whilst in prison and as a result have sought to be placed in protection, which the authorities have done. Protection has not caused you any difficulties, in that you have been able to access all matters that you would normally be able to access, and your counsel did not rely upon that matter as making your time in custody more onerous.
Further, your counsel submitted that as a result of these assaults upon your ex-partner and her daughter, you no longer get to see your child, Naura, that you had with Ms Chodir, which is far from surprising. That your counsel described as a hardship that will make prison more difficult. I will take it into account as a factor contributing towards the difficulty that you may have in serving your time in prison but I do not consider it to be a strongly mitigating factor, as it was your criminal behaviour, for which you stand to be sentenced, that has caused you to lose contact with your child.
Your personal circumstances are that you are now 56 years of age, you came from a Turkish family who lived in a region that was common to Bulgaria, Greece and Turkey. Your father died many years ago and your mother in the late 2000s. You had an older brother, who died quite young and a younger brother and sister, who both reside in Turkey. You have a limited educational background having been to school only between the ages of 7 and 9. You had a fairly poor upbringing financially as well as educationally. You family lived with your paternal grandparents, who worked on a tobacco farm and they kept a small number of animals, in a form of subsistence farming. From the time you left school at the age of nine, you were expected to be involved in helping around the family farm. All ploughing, planting and picking, in respect of any crops or animals that were kept was done by hand, without the benefit of any machinery.
At the age of 15 you signed on as a deckhand and commenced working on container ships and tankers, which you did for the next four years until you jumped ship in Adelaide. You met a Greek gentleman in Adelaide and you travelled to Melbourne with him where he lived and stayed here for about four to five years. You met a Greek Cypriot girl and became engaged, but you wished to travel to West Australia for employment opportunities, she didn’t wish to accompany you and that engagement ended. You travelled to Perth in about 1980 and it was a short time after you arrived there, a matter of months, that you met Genia your first wife and the victim in your murder case. You became engaged and ultimately married, at the time of the murder you and Genia had been separated approximately a month. The reason for the separation was, as I indicated earlier, you had attended a community wedding at which you had become very intoxicated and disgraced yourself and your wife, as a result you were assaulted by a family member of your wife and she left you shortly after that.
In terms of your alcohol intake, your counsel stated that you had been drinking all your life, from the time as a young person in Greece with your friends and that continued up until the time of these particular offences for which you stand to be sentenced. After you were charged and convicted in Perth, you spent just over 10 years in prison, where you worked as a gardener and cleaner. You were then paroled and your parole was transferred to Victoria, when you moved interstate.
In terms of your employment, you worked fairly consistently in your time in Perth, but since your return to Melbourne your work has been intermittent. Amongst the jobs you have had was a sawmill machine operator for about 12 to 18 months, working at a foundry, a packer at a meat abattoir for about three months, and at a company called Aussie trolleys, making steel products for about a year.
In respect of your relationship with Ms Chodir, you did not reside at the premises with her but you did spend quite a deal of your time there. She helped you to save money and she also saved money, so together, there was money being saved for the preparation for the birth of your child. You took that money and gambled it, which has apparently been a problem for you over a period of time, as well as your alcohol intake.
Your counsel submitted that you have some insight into your offending, in that you now realise that the alcohol and gambling was a problem for your relationships, and that it caused your relationships to go off the rails. He submitted that you have some hope for your eventual rehabilitation, as that demonstrated that you had some insight into your problems. I cannot agree. The report from Dr Lester Walton, dated 10 April 2013, Exhibit 5 stated in terms of the history:
Mr Alioglu claimed to have substantial memory gaps in relation to the incidence of violence which brings him before the court. His initial account consisted only of him being the victim of stabbing and then being hospitalised. Later he did elaborate that he had been involved in an argument with his wife but ‘I can’t remember who stabbed me, maybe my wife, maybe the daughter’. Mr Alioglu stated, ‘I self-defended myself, I thought I was dying, I can’t remember much, I wake up in hospital’.
Given that he indicated that he would plead to his outstanding charges, I questioned Mr Alioglu as to whether or not he regarded himself as having been involved in any wrongdoing and he responded ‘a little bit’. He indicated that he was aware that he had stabbed his partner.
In relation to your prior conviction for murder Dr Walton at page 2 notes:
Specifically in relation to the killing of his former spouse in 1984, Mr Alioglu stated, ‘I can’t remember much. That was my first wife. She died.’
In relation to your mental status, Dr Walton said,
At interview Mr Alioglu was only partly dependent upon the interpreter. He is literate in Turkish despite his limited education.
His arithmetical skills are certainly underdeveloped. He was correctly oriented in time and place. He complained ‘my mentality wanders away. I lose it and get confused, I forget everything very quickly.’ But my impression was that his seeming patchy memory loss did not readily conform to any medical or psychiatric phenomenon. Mr Alioglu described his mood at the time as ‘very down. I can't see my wife or my daughters’. But that statement was not accompanied by any readily observable sorrow or depression. Mr Alioglu stated that he had entertained suicidal thoughts on one occasion after the offending. He stated, ‘I don’t want to die I want to see my children’.
Under the heading the ‘Opinion’ at page 4, Dr Walton stated:
There is no suggestion that this man has any mental state defence available to him and therefore his intention to plead to the charges certainly can proceed from a psychiatric perspective. Precisely why Mr Alioglu was given to behaving in such a violent fashion is not readily apparent from a clinical perspective. Fortunately he does seem to act in that fashion infrequently.
Mr Alioglu does not express comprehensive remorse, his expression of sorrow centring on himself. This phenomenon is not attributable to any psychiatric disturbance.
I agree with Dr Walton, there is nothing to indicate that you actually have no memory of what occurred in relation to the death of your first wife and nothing to indicate you having no real recollection of what happened on this occasion. In fact in the trial for the murder of your first wife you gave evidence on oath and provided a version of what occurred. Like Dr Walton, I find that in respect of sorrow and remorse for your actions, your remorse does seem to centre very much upon your feelings of self-pity and that you, to a large degree, consider yourself the victim in this particular case. I do not find you remorseful and I do not find that you have any reasonable prospects of rehabilitation. In fact I think your prospects of rehabilitation are exceedingly poor.
I do have to take into account in your favour your plea of guilty, which although I do not find it to be an indication of remorse, is a plea of value in that neither the child Daniela nor her mother Ms Chodir will have to go through the ordeal of giving evidence, together with the fact that such a result saves the community a great deal of time and money. As indicated, I accept that your time in prison will be harder than the average person and I will take that into account in determining the appropriate sentence. I also need to take into account and deal with specific deterrence, which in your case is high, general deterrence which is equally important in this case, denunciation of offences of this nature, protection of members of the community from you, the need to impose a just and appropriate sentence whilst ensuring that the sentence is not crushing.
In relation to the issue of whether you are a serious, violent offender, I find that you are not for the purposes of sentencing to be declared a serious, violent offender. It is clearly a lacuna in the legislation in that a sentence of death later commuted to life imprisonment is, as a matter of law, not a sentence of imprisonment. It is a conditional pardon and does not fit within the legislation. Whilst the legislation is differently worded in West Australia, I agree with the submissions put forward by Mr G Hughan, your counsel, that it is not sufficient to alter the interpretation that has been established in Victoria by the authorities[1]. As I indicated, it is clearly a lacuna and one which the authorities should turn their mind to, although there are fewer persons coming before the court with prior convictions in which sentences of death have been imposed. Further, I am of the opinion I do not need to declare you a violent offender to consider that the protection of the community from you is still an important factor to be taken into account in imposing sentence.
[1]R v Bariska [1989] VR 425
Taking into account all of the matters to which I have referred, including your plea of guilty, for which you will receive an appropriate modification of your sentence, your personal circumstances, and the circumstances under which you will serve your sentence, as well as specific and general deterrence, denunciation, protection of the community and the victims, the high level of the offending, your prior criminal history, the age and circumstances of the victims and ensure that I impose a just and appropriate sentence and one that is not, under all of the circumstances and in totality, crushing.
You are convicted and sentenced to be imprisoned for 12 years for the charge of intentionally causing serious injury, and five years for the charge of recklessly cause serious injury. I direct that two years of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, making a total sentence of 14 years.
I direct that you are to serve a minimum of 11 years and six months before becoming eligible for parole.
Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been 13 years on Charge 1 and six years on Charge 2, with cumulation of two years and three months, making an effective sentence of 15 years and three months with a minimum term of 12 years and nine months.
I declare that you have spent 372 days in pre-sentence detention (not including today) and such be entered in the records of the court.
I grant the application for a disposal order.
Application for forensic sample retention order pursuant to S 464ZFB (1) is granted.
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CERTIFICATE
I certify that this and the 16 preceding pages are a true copy of the reasons for Sentence of King J of the Supreme Court of Victoria delivered on 24 April 2013.
DATED this 24th day of April 2013
Associate to Justice King
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