R v Cavus - [2003] VSC 288

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1482 of 2002

THE QUEEN

GULBEY CAVUS

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 JULY 2003
DATE OF SENTENCE:	30 JULY 2003
CASE MAY BE CITED AS:	R v GULBEY CAVUS
MEDIUM NEUTRAL CITATION:	[2003] VSC 288

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Sentence – Attempted murder (s.321N Crimes Act 1958) - Intentionally cause injury (s.18 Crimes Act 1958) – Offender punched estranged wife in mouth and on a later occasion stabbed her six times – Stab wounds were not life threatening only by reason of luck, resistance by the victim and the intervention of others - Breach of intervention order – Degree to which the offender’s personality disorder should be taken into account – Offender of normal intelligence and cognitively intact - History of aggression towards wife – Previous breach of intervention order – Elements of denunciation and general and specific deterrence relevant – Sentenced to a total of 11 ½ years' imprisonment with a minimum of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr J. Montgomery	Clarebrough Pica

HIS HONOUR:

Gulbey Cavus, you have been found guilty of one count of intentionally causing injury and one count of attempted murder. The two incidents out of which the charges arise occurred a week apart on, respectively, 25 October 2001 and the following 1 November.

Parliament has by legislation set out the only purposes for which sentence may be imposed. They are: to punish the offender to an extent and in a manner which is just in all the circumstances; to deter the offender or other persons from committing offences of the same or a similar character; to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; to manifest the denunciation by the court of the type of conduct in which the offender engaged; to protect the community from the offender; or, finally, a combination of two or more of those purposes. Parliament has also by legislation provided that in sentencing an offender a court must have regard to a number of numbers. These include the maximum penalty prescribed for the offence, current sentencing practices, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the personal circumstances of any victim and injury resulting directly from the offence, the offender's previous character and the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

I have taken these matters into account in determining the sentence which, in my opinion, is appropriate in your case. I begin with the fact that the victim on each occasion was your wife. You have been married to her now for some 20 years. You have three children by her. But you have been separated from her since about 18 months before the events which resulted in…

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 Cavus

Details

AGLC: R v Cavus [2003] VSC 288
Case: [2003] VSC 288
Decision Date: 30 July 2003

CaseChat Overview and Summary

The defendant, Cavus, was charged with attempted murder and intentionally causing injury to his estranged wife under the Crimes Act 1958. The incidents in question involved the defendant punching his wife in the mouth and, on another occasion, stabbing her six times. These actions occurred despite the existence of an intervention order prohibiting the defendant from contacting his wife. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included determining the appropriate sentence for the defendant, considering the severity of the attacks and the mitigating factors such as the defendant's personality disorder. The court had to weigh the elements of denunciation, general deterrence, and specific deterrence in light of the defendant's history of aggression towards his wife and previous breaches of the intervention order. The court also needed to assess the extent to which the defendant's personality disorder should influence the sentence.

The court concluded that the stab wounds were not life-threatening only due to luck, the victim's resistance, and the intervention of others. Despite the defendant being of normal intelligence and cognitively intact, the court found that his history of aggression and previous breaches of the intervention order were significant aggravating factors. The court considered that the defendant's personality disorder did not fully excuse his actions but recognised it as a mitigating factor. Balancing the need for denunciation, general deterrence, and specific deterrence, the court sentenced the defendant to a total of 11 ½ years' imprisonment with a non-parole period of 8 years.

The final orders of the court were that the defendant be imprisoned for a total of 11 ½ years, with a minimum non-parole period of 8 years. This sentence aimed to adequately reflect the seriousness of the offences while also considering the mitigating factors presented.

Orders