R v Alipek - [2006] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 164 of 2004

THE QUEEN
	v.
HASSAN HUSEYIN ALIPEK

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JUDGES:	WARREN, C.J., BUCHANAN, and VINCENT JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2006
DATE OF JUDGMENT:	6 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 66

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Criminal law – Kidnapping – Attempted murder – Whether verdict was unsafe and unsatisfactory – Whether sentence was manifestly excessive – Whether sufficient weight was given to matters of mitigation - Misstatement of maximum penalty for offence

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for the Office of Public Prosecutions
For the Applicant	In person

WARREN, C.J.:

The applicant, Hassan Huseyin Alipek, was convicted of the kidnapping and attempted murder of Hulya Cavus and sentenced to a term of 14 years’ imprisonment with a non-parole period of 11 years. The applicant’s co-offender, Jason Maxwell Saltmarsh, was acquitted on counts of kidnapping and attempted murder and convicted of intentionally causing serious injury to Cavus. The applicant now applies for leave to appeal against his conviction and sentence.

The kidnapping and attack on Cavus occurred on 6 October 2002. For about the past two years the applicant and Cavus had been friends. The applicant and Cavus met through a work connection. They are both Turkish. They shared an interest in Turkish culture and they mixed in the same circle of friends. Cavus described their relationship as platonic but observed that about six to 12 months before the attack the behaviour and attitude of the applicant had changed. Cavus was married but separated and had three teenage children. She recounted at trial episodes at trial when at the home of a mutual friend the applicant had tried to kiss her. Cavus also said that, more than once, the applicant had asked her to marry him. Cavus rejected the applicant’s approaches and proposals. On one occasion, she became upset and the applicant was displeased with her response to him. However, Cavus said that, notwithstanding her rejections, she and the applicant remained friends.

Cavus gave evidence at the joint trial of the applicant and Saltmarsh that the applicant began to monitor her movements and accused her of seeing another man. On one occasion, a few months before the attack, when Cavus was driving out of the driveway of her home, she saw the co-accused Saltmarsh standing on the street corner. Cavus said her eyes locked with those of Saltmarsh and then he turned and walked the other way. Cavus did not believe Saltmarsh had ever been to her home, or for that matter, knew where she lived. A few days after this incident, Cavus and a friend went to meet the applicant at a car park. Saltmarsh was there with the applicant. When Cavus asked Saltmarsh why she had seen him at the street corner previously, the applicant interrupted and told Saltmarsh not to answer the question and to go away.

On 1 October 2002, five days before the…

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 Alipek

Details

AGLC: R v Alipek [2006] VSCA 66
Case: [2006] VSCA 66
Decision Date: 6 April 2006

CaseChat Overview and Summary

The case of R v Alipek involved a defendant who was convicted of kidnapping and attempted murder. The defendant appealed against both the safety of his conviction and the excessiveness of his sentence, as well as the weight given to mitigating factors. The appeal was heard by the Court of Criminal Appeal in Australia. The central issue before the court was whether the conviction was so unsafe and unsatisfactory that it should be quashed, whether the sentence was manifestly excessive, and whether the trial judge failed to give sufficient weight to the defendant's mitigating circumstances, including a misstatement of the maximum penalty for the offence.

The court first examined the sufficiency of the evidence to support the conviction. The trial judge had considered the evidence thoroughly and concluded that the defendant's actions amounted to kidnapping and attempted murder. The appellate court found no basis to interfere with the trial judge's assessment of the evidence, holding that the conviction was safe and satisfactory. The court also reviewed the sentence, which was deemed within the appropriate range given the gravity of the offences. Regarding the misstatement of the maximum penalty, the court noted it as an error but found it did not influence the sentence or the trial judge's consideration of mitigating factors. The court concluded that the trial judge had properly considered the mitigating circumstances, and the sentence was not manifestly excessive.

The appeal was ultimately dismissed, and the conviction and sentence were upheld. The court's final orders confirmed the defendant's conviction for kidnapping and attempted murder and maintained the original sentence imposed by the trial court. The appellate court did not find any grounds to alter the trial judge's decision on the matters appealed.

Orders