R v Alioglu - [2013] VSC 179

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 125 of 2012

THE QUEEN

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.

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…

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.

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Details

Case: [2013] VSC 179
Decision Date: 24 April 2013

CaseChat Overview and Summary

The case of R v Alioglu involved the defendant who had attacked his estranged partner, causing serious injuries to her and her child. The child had intervened in the attack to protect her mother, who was the defendant’s former spouse. The dispute came before the court to determine the appropriate sentence for the defendant who had a prior conviction for murder. The defendant was previously sentenced to death for the murder of his wife, but this sentence was commuted to life imprisonment. The case required the court to decide on the appropriate sentence for the new offence, considering the nature of the crime, the defendant's history, and the definition of a serious violent offender under the Sentencing Act 1991.

The primary legal issue before the court was whether the defendant should be classified as a serious violent offender under section 6D of the Sentencing Act 1991. This classification would have significant implications on the sentence imposed, potentially increasing the minimum term of imprisonment. The court had to consider the principles established in R v Bariska, which provides guidance on determining whether an offender is a serious violent offender. The court also needed to balance the severity of the current offence with the defendant’s criminal history and the circumstances of the attack, including the intervention of the child.

In delivering its judgment, the court found that the defendant did not meet the criteria to be classified as a serious violent offender for the purposes of sentencing under section 6D of the Sentencing Act 1991. The court reasoned that while the attack was violent and resulted in serious injuries, the defendant's prior conviction did not necessarily imply that he would habitually engage in violent conduct. The intervention of the child, who was protecting her mother, was also considered in determining the appropriate sentence. The court imposed a total sentence of 14 years, with a minimum non-parole period of 11 years and 6 months. This sentence reflected the gravity of the offence and the need to protect society while also taking into account the unique circumstances of the case.

The court made clear that the defendant was not to be classified as a serious violent offender, thus avoiding the harsher sentencing provisions. The decision underscores the importance of context and individual circumstances in sentencing, particularly when prior convictions are involved. The final orders of the court were that the defendant would serve a total of 14 years in prison, with a non-parole period of 11 years and 6 months.

Orders