R v Cavus
[2003] VSC 288
•30 July 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1482 of 2002
| THE QUEEN |
| v |
| GULBEY CAVUS |
---
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 | |
---
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.
---
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 your convictions. Whatever your feelings about your wife may now be, you had not in the latter months of 2001 accepted that the separation was to continue. You wanted to return to the matrimonial home and to resume family life with your wife, your son and your two daughters. Perhaps as an alternative to being allowed to resume your former relationship with your wife, you also demanded money from her. When you were refused, you attacked her. I am concerned with two of those attacks. On 25 October, you punched your wife in the mouth, causing damage to at least one of her front teeth, and bleeding to her lip or gums or both. In the incident which occurred a week later, on 1 November, your wife suffered six stab wounds, together with bruising and abrasions. Hence the two convictions for which I must now sentence you.
You were born in Turkey on 13 December 1959. You arrived in Australia approximately ten years later. You have had limited education and since leaving school have been employed as a labourer in a variety of jobs including three years as a leading hand with General Motors Holden.
You were first married in 1975. It was an arranged marriage. You separated in 1978. You then formed a relationship with Sharon Hashem and had a daughter, now aged 23, by her. Since you and your present wife separated, you have entered another relationship. This also has resulted in the birth of a child. I accept that you are able to form, and have formed, close relationships with your children. I also accept that those relationships are important to you, as they are to them. Each of your children, including your 23 year old daughter, visits you in prison.
You are now 43 years old and well beyond the necessity of support from your parents or siblings. Nevertheless, I take into account the fact that your mother's death from cancer in 1992 and your brother's death from a heroin overdose in 1995 made it more difficult than otherwise to cope with the problems which life and your personality have placed in your path. I also note that your father has returned to Turkey to live. This is doubtless a factor in the poor social supports about which your psychiatrist, Dr Weissman, spoke in his report dated 29 March 2002. Dr Weissman also referred in that report to your anti-social and borderline personality disorder and your disturbed developmental history. Dr Weissman added that you had "a strong family history of psychiatric illness" and a number of psychiatric admissions during the 1990s. According to Dr Weissman, the development of your personality disorder, your poly-substance abuse and your tendency towards both paranoia and depression can in large part be understood in terms of your past history.
As against this, Dr Weissman pointed out what he described as some of your "ego-strengths". According to him, you often "came across as a personable, polite and gentle person, who loved all of his children" and who "was shattered by the breakdown in the family unit". Dr Weissman recorded that you were pleased whenever you had favourable contact with your wife.
Another psychiatric report was put in evidence on your plea. This second report, which is dated 24 April 2003, was prepared by Dr Lester Walton. You were not then on medication, but did have what Dr Walton describes as "reasonably regular contact with the prison-based psychiatric nurses". Dr Walton refers to an episode of myocardial infarction which you suffered in August 2002. This resulted in cardiac surgery. Problems associated with your heart condition are, apparently, ongoing.
Dr Walton described you, at interview, as pleasant and cooperative and as not appearing especially despondent although you stated that you "feel so low". While acknowledging that you have abused drugs in the past, Dr Walton doubts that you can properly be described as alcohol or drug dependent. You are, according to Dr Walton, a man of normal intelligence who "remains thoroughly cognitively intact". I accept this evidence.
Dr Walton's diagnosis matches that of Dr Weissman. Having read their reports, I accept that you have a borderline personality disorder with recurrent episodes when you are seemingly irrational and paranoid. A diagnosis of schizophrenia has not, however, been confirmed. When calm, you have no difficulty appreciating the implications of a breach of such things as intervention orders but during episodes of paranoid rage this ability is (to adapt the words of Dr Walton) likely to be lost on you. Dr Walton sees this as the principal explanation for your repeated offending involving your wife. There are times, according to Dr Walton, when you are barely able to contain aggressive urges due to factors largely beyond your self-control.
Whatever the explanation, the evidence is that your wife suffered physical abuse at your hands even before the terrible events of 1 November. Whether for this or other reasons, on 20 November 2000 the Magistrates' Court at Melbourne made what is known as an "intervention order" in which not only your wife but also each of your three children by her were named as "aggrieved family members". The Magistrates' Court then ordered that you be prohibited from assaulting, harassing, molesting, threatening or intimidating any of those relatives. You were further prohibited from approaching, telephoning or contacting any of them except in certain limited circumstances. In addition the court prohibited you from knowingly being at or within 200 metres of any premises at which an aggrieved family member lives or works. Again, very limited exceptions were set out in the order, which was to remain in force until 20 November 2002 unless amended, revoked or extended.
The evidence is that you were well aware of the existence of the intervention order and its general effect. Indeed, any reminder of it tended to enrage you. Yet there is no evidence to suggest that in your calmer moments you were unable to anticipate the problems this might cause and take steps to avoid them. On the contrary. Given that you are of normal intelligence and remain thoroughly cognitively intact, you ought to have foreseen that trouble would very likely follow any breach of the intervention order. Equally, you ought to have foreseen that that trouble would probably develop into violence were you then intent upon raising with your wife the contentious subjects of your relationship and her money. It had happened before. You had had plenty of time, on several occasions in the months leading up to October 2001, to think about your tendency to inexcusable violence as your reaction to arguments with your wife. Even so, on 25 October it happened again. You so far lost control of yourself as to punch your wife, a defenseless woman, in the mouth with such force as to loosen at least one tooth and cause her mouth to bleed. You did so in the presence of her father and one of her friends. It was a callous act which demonstrated your utter disrespect, at least when angry, for the dignity and physical integrity even of those close to you. To be in possession of a knife a week later, on an occasion when you were determined to reopen your argument with your wife, was an invitation to disaster. In my opinion, you must take full responsibility for what followed
Your counsel, Mr Montgomery, has put on your behalf every argument reasonably open to him. I accept his submission that what happened on 1 November was not premeditated. I proceed on the footing that your intention to kill your wife was first formed at some time after the beginning of an argument between you. I also, of course, accept that the wounds you inflicted upon your wife were not life threatening, did not penetrate much below the skin and did not require sutures.
Every other aspect of your behaviour must, however, be regarded as extremely serious. Your very presence at the Macsuds car wash in the carpark of the Jam Factory was a flagrant breach of the intervention order. It was a breach which you twice committed in the space of a week. In this context, I note that on 23 February 2001 you were sentenced without conviction on three charges of breaching the terms and conditions of the intervention order. You were released upon entering into an adjourned undertaking to be of good behaviour for a period of 12 months with a special condition to continue to seek treatment from Dr Weissman. Although you did continue under Dr Weissman's care, by the events of 25 October and 1 November that year, you otherwise breached that undertaking.
I therefore come to the events of 1 November on the basis that your being anywhere near your wife on that day was itself a grave breach of the law as well as your own solemn pledge. For the reasons I have already endeavoured to state, your possession of a knife in those circumstances was utterly irresponsible even if, when you first took possession of it, you did not intend to use it. You then launched a vicious attack upon your wife, intending to kill her. You did this in a public place in front of her sister and her sister's infant child, your niece. A struggle followed, as it was bound to do; and in such circumstances the fact that your intention to kill was not followed by your wife's death can only be ascribed to a combination of luck, her resistance and the intervention of others
You have a number of prior convictions. One of these, for which you were convicted on 10 July 1978, was for unlawful assault, for which you were sentenced to pay a fine in the amount of $100 and in default of payment to be imprisoned for a period of 10 days. There is also a conviction for an assault, which conviction was recorded on 24 January 1994, which involved your wife. You were then sentenced to pay a fine in an amount of $400. These convictions I take into account in determining your character. I have not had regard to your other convictions because in my opinion they are of insufficient relevance
Mr Montgomery has submitted on your behalf that I should take into account the fact that the trial was one in which the only issue in dispute was that of your intention at the time you stabbed your wife. I accept that submission. Its force is however reduced by the consideration that the case against you on the other issues was almost overwhelming.
In my opinion, your case is not comparable to that of an offender whose mental illness contributed to the offence or under the influence of which the offence was committed. Your borderline personality disorder may have affected your capacity to control yourself once the confrontation with your wife began. It did not affect your capacity to ensure that the problematic circumstances never arose in the first place. In those circumstances, it seems to me that considerations of both general and specific deterrence apply to you as they would to an offender who was free of the psychiatric disabilities and personality disorders which I accept you have.
In coming to my decision about the appropriate sentences to impose in your case, I have taken into account the victim impact statement which has been tendered on the plea. It supports the conclusion, which in any event was almost inevitable, that the attack upon your wife had a profoundly adverse psychological, as well as a seriously adverse physical, effect on her. Behaviour of the kind you evidenced on 1 November is absolutely unacceptable. It must be vigorously denounced by the courts. That is especially so when such behaviour violates not only every precept of decency but also specific court orders and your own undertaking.
In my opinion, the appropriate sentence on the charge of attempted murder is 11 years' imprisonment. On the charge of intentionally causing injury, it seems to me that the appropriate sentence is eight months' imprisonment. I direct that two months of the latter sentence be served concurrently with the first. The result is a total effective term of imprisonment of 11 and a half years. I direct that you serve eight years before becoming eligible for parole
For the purposes of s.18 of the Sentencing Act, I declare that the period to be reckoned as already served under the sentence is 637 days. I direct that there be noted in the records of the court the fact that the declaration has been made and its details.
---
0
0