R v Cicekdag
[2017] VSC 781
•21 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0033
Between:
| THE QUEEN | |
| -and- | |
| OMER CICEKDAG | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2017 | |
DATE OF SENTENCE: | 21 December 2017 | |
CASE MAY BE CITED AS: | R v Cicekdag | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 781 | |
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CRIMINAL LAW – Sentence – Manslaughter – Accused and another confronted victim knowing loaded .22 calibre gun would be presented to reinforce demand of victim over drug debt or transfer of car – As victim moved forwards, gun discharged and projectile struck his shoulder, killing him – Accused thereby assisted or encouraged another in commission of unlawful and dangerous act – Victim was accused’s cousin – Director accepts accused to be sentenced as assisting or encouraging offence because unable to prove who was holding gun when discharged – Offence committed while on bail, albeit for comparatively minor matter – Plea of guilty – Remorse – Limited criminal history – Evidence of positively good character – Imprisonment more burdensome for accused knowing (a) killed own cousin and (b) cannot care for his (unwell) wife and family – Accused relatively young (aged 25 at time of offence; 27 now) – Very strong prospects of rehabilitation – Additional punishment in forfeiture of vehicle used in connection with offence – Appropriate case for shorter non-parole period – Sentence of nine years’ imprisonment with non-parole period of five years – But for plea of guilty, sentence of eleven years’ imprisonment with non-parole period of seven-and-a-half years – Crimes Act 1958 (Vic), ss 323, 324 & 324B; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; Confiscation Act 1997 (Vic), ss 3, 32 & 33.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC with Mr D. Hannan | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Richter QC with Mr M. Gumbleton | Haines & Polites |
HIS HONOUR:
Overview[1]
[1]The following summary is a precis of the contents of the Summary of Prosecution Opening for Plea (dated 11 October 2017) (Exhibit 1), as supplemented by the evidence received and the information provided by counsel on the plea.
On 10 June 2015, Omer Cicekdag, along with another man, was involved in the shooting of his cousin Ali Ishan Duyar with a .22 calibre handgun. The bullet struck Mr Duyar in the shoulder and travelled into his chest, causing serious internal injuries. Tragically, he died as a result. Inevitably, Mr Duyar’s family were devastated at the loss of their loved one, and always will be.
Initially, Mr Cicekdag was charged with murder. Ultimately, however, the Director of Public Prosecutions indicted Mr Cicekdag on a charge of manslaughter instead, to which he pleaded guilty.
That charge is put against Mr Cicekdag, not on the basis that he shot Mr Duyar, but on the basis that he was “involved in the commission of” an unlawful and dangerous act that caused death. This means that he intentionally assisted or encouraged the one who produced the gun, which discharged and killed Mr Duyar (or what, at common law, is called aiding and abetting).[2]
[2]See ss 323, 324 & 324B of the Crimes Act 1958 (Vic).
Mr Cicekdag is now to be sentenced for that offence. There is no dispute that he must receive a term of imprisonment. The ultimate issue that I must determine concerns the duration of that prison sentence and the associated non-parole period.
Before passing sentence, I shall summarize the events surrounding the death of Mr Duyar; assess the nature and gravity of the offending; outline the victim impact statements, the factors in mitigation and various sentencing purposes and principles; and then deal with some ancillary orders for forfeiture or disposal of items connected with the offence.
Summary of events
So, first, to a summary of the events surrounding Mr Duyar’s death.
Mr Duyar
Mr Duyar was aged 35 when he died. He is survived by his wife Emel Hassan, his three young children (aged ten, seven and four), and his parents Selcuk and Saadat Duyar.
At the time of his death, Mr Duyar had been living at a Recovery Oz rehabilitation facility in Doncaster, and was in the process of transferring to another such facility. For some time, he had been heavily involved in the illicit drug culture.
Mr Cicekdag
Mr Cicekdag was aged 25 at that time, and is now 27. He was living in Noble Park with his two younger sisters at their mother’s unit, while his mother was overseas. His wife (of five years) was living with his elder sister in Doncaster East.
Lead-up to offence
In the early hours of 10 June 2015, Mr Cicekdag woke one of his sisters and expressed concern that people were watching their house. Later, he showed his sister two guns. One was a .45 calibre pistol subsequently handed to police by a relative. The other was a small black one that has not been recovered. (Neither gun was the weapon that killed Mr Duyar.)
At about 11:26 a.m., Mr Cicekdag texted his sister requesting that she drive past their aunt’s house in Bloomfield Road, Keysborough, to see who and what cars were there. She did so, and then told him that there was a blue Range Rover and a black Mercedes at the house.
At about 4:03 p.m. on 10 June 2015, Mr Cicekdag drove his white Jeep, with Rahib Ezadyar as his passenger, to the same address in Bloomfield Road. They were there to see Mr Cicekdag’s cousin Mr Duyar, whose parents owned the home but were overseas at the time. The intention of the two men was to demand that Mr Duyar pay a drug debt or transfer the registration of a Range Rover.
It is accepted by Mr Cicekdag that he knew that the demand would be reinforced by the presentation of a loaded .22 calibre handgun. However, the Director cannot say who, at any stage, had the handgun, which was concealed from view. Nor can the Director say that the drug debt was owed to Mr Cicekdag or that the proposed transfer of the car was to be to him.
Also there at that time, but in another car and for an unrelated purpose, was Mr Duyar’s friend Hassibulah Ahmadi.
All three men went to the front door and were let inside by Christopher Veyrinas, who was the only person home. One of the visitors asked Mr Veyrinas to contact Mr Duyar, who said he would be there shortly. Mr Ahmadi chose not to wait for his friend, and left. Mr Cicekdag and Mr Ezadyar waited with Mr Veyrinas.
Mr Duyar is shot and killed
Mr Duyar eventually arrived at about 4:55 p.m. He, Mr Cicekdag and Mr Ezadyar spoke in the kitchen/dining area, while Mr Veyrinas stayed in the lounge room.
The drug debt was raised, as was the transfer of the Range Rover. Mr Duyar said that the transfer could not be done because the car was stolen.
Mr Cicekdag instructed his counsel that he was also there to remonstrate, and did so, with his cousin about the way in which he had been neglecting his family because of his drug use and related behaviour. There is some support for that, as there is evidence that, at some stage, Mr Cicekdag and Mr Duyar argued in Turkish. I am prepared to accept that assertion.
In any event, at some point during the meeting between the three men, the handgun was produced and pointed at Mr Duyar. Just before 5:36 p.m., the gun discharged at close range, striking Mr Duyar in the back of his left shoulder. The evidence suggests that, at the time he was struck, Mr Duyar had moved from a seated position at the dining table to a leaning position over the same table and towards the person holding the gun.
After he was shot, Mr Duyar clasped his wound and ran towards the front door. He followed Mr Veyrinas, who had heard the gunshot and fled. Mr Duyar ran outside and fell to the roadway in front of the house.
A short time later, passers-by stopped their cars to assist. Emergency services were called.
At 5:52 p.m., an ambulance arrived and then transported Mr Duyar to the Alfred Hospital. Sadly, all attempts at resuscitation were unsuccessful. Mr Duyar was pronounced dead at 7:35 p.m.
Later, an autopsy determined that Mr Duyar died as a result of the gunshot entering and damaging his chest area.
Behaviour following the shooting
Immediately after the shooting, Mr Ezadyar and Mr Cicekdag ran out the back door of the house. They jumped the back fence and made their way to the nearby home of Mr Ezadyar’s uncle Nemat Ezadyar, who then drove them towards Mr Cicekdag’s home in Noble Park.
Upon his arrival, Mr Cicekdag asked his wife and his sister as to their recent whereabouts and the company they kept. When his wife explained that she had been with her cousin, he said, “I can’t use that because she was with you.” His wife then told him she had been at an appointment, to which he responded, “I can say that you picked me up.” Mr Cicekdag then set about cleaning “things” and “himself”.
Subsequently, Mr Cicekdag, Mr Ezadyar and his uncle learned that Mr Duyar had died, and they discussed what to do.
A little later, Mr Cicekdag left his home with his wife and his sister. They drove to Bloomfield Road “to see … if we can get access,” Mr Cicekdag said. As it turned out, the police had the area cordoned off. Accordingly, Mr Cicekdag was unable to access his Jeep, in which he had left his identification and other items.
Mr Cicekdag then went to his uncle’s home. When (twice) asked by his uncle whether he “did it”, Mr Cicekdag said, “No, I didn’t do it.”
Later that night, after driving back from another meeting with Mr Ezadyar, Mr Cicekdag asked his uncle, “If I tell them I walked to your house, will you back me up?” His uncle told him, “If you have done anything to Ali [Duyar], forget it,” to which Mr Cicekdag responded, “Don’t worry, don’t worry.”
Police investigation
Inside the house at Bloomfield Road, police found a fired .22 calibre cartridge case on the tiled floor of the dining room area. DNA testing yielded no result.
Inside the white Jeep, which was parked in the street, was a ‘Diesel’ brand bag that Mr Cicekdag had been seen carrying when leaving his address in Noble Park at 3:06 p.m. on 10 June 2015. Inside the bag was .22 calibre ammunition and nine-millimetre calibre cartridges. A Louis Vuitton bag also found inside the car contained gunshot residue particles suggestive of its having contained a gun that had previously been fired.
Also, a .22 calibre cartridge was found within the door-well on the passenger side of the Jeep. Upon analysis, only a very partial single source DNA was detected in respect of which Mr Cicekdag, Mr Ezadyar and Mr Veyrinas were all excluded as potential contributors.
The cartridge case located on the floor of the dining room area was a .22 long rifle Remington brand consistent with the .22 calibre fired bullet located in the torso of Mr Duyar. The cartridge located in the door-well of the Jeep was of the same size and brand. There are, however, many firearms, handguns and rifles that utilise that type of cartridge.
Arrests, interviews and charges
Mr Cicekdag was ultimately arrested and interviewed by police on 18 June 2015. He made no comment. He was charged with murder and has remained in custody ever since.
Mr Ezadyar was arrested and interviewed by police on 10 July 2015. He too made no comment. He was charged with murder but the charge was withdrawn after he provided police with statements.
Nemat Ezadyar was charged with being an accessory after the fact, but that charge was also withdrawn following the withdrawal of the charge against his nephew.
Victim impact statements
I turn now to the victim impact statements.
Two such statements were made (each of them jointly). One was made by Mr Duyar’s parents Saadat and Selcuk Duyar; and the other by his sisters Selda San and Omur Akcicek.[3]
[3]See Exhibits 2 & 3.
The statements reveal the deep pain, anger and despair Mr Duyar’s family feel as a result of his unlawful killing. Mr Duyar’s sisters speak of the emptiness in their hearts; of their loss of faith and trust in people; of feeling pangs of guilt whenever they feel happy about anything; and of the suffering from which they think they will never recover.
Mr Duyar’s parents explain that the loss of their son is beyond words and that they hope that God never allows any other family to experience the same heartache. They miss their son’s presence, his laughter and his kind heart. As much as it warms their hearts to see their son’s children, it hurts them when they ask questions about their father. Like their daughters, Mr and Mrs Duyar also feel guilty even smiling when their son is gone. They think they will never get over his death.
The victim impact statements are powerful and moving documents. In so far as it is permissible to do so, I have had regard to their contents in considering sentence.
Nature and gravity of offence and offender’s culpability and degree of responsibility
I turn now to an assessment of the nature and gravity of the offence, and of Mr Cicekdag’s culpability and degree of responsibility.
Manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment.[4]
[4]See s 5 of the Crimes Act 1958 (Vic).
The offence is serious, by definition. The life of a relatively young man – a father of three, a husband, a son – has been lost as a result of criminally dangerous behaviour. Further, and as the victim impact statements of Mr and Mrs Duyar make so plain, when a child pre-deceases his parents, it reverses the natural order of things.
As I indicated earlier, the parties have agreed that, since it is not possible to determine who produced the gun, Mr Cicekdag is to be sentenced, not on the basis that he produced the gun, but on the basis that he was involved in the commission of the offence by his intentional assistance or encouragement of the one who did.
The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, while Mr Cicekdag did not believe or intend that the person who produced and fired the gun had an intention to kill or cause really serious injury (or recklessness thereto), for otherwise it would be murder, his plea of guilty accepts that he was involved in conduct that was unlawful and dangerous – dangerous in the sense that a reasonable person in his position would have realised that, in producing a loaded gun in those circumstances, Mr Duyar was being exposed to an appreciable risk of serious injury.
While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung down. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim, whereas such an intention usually (but not always) will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts.[5]
[5]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at 92[75]).
That there can be no inflexible rule is illustrated by the circumstances of this case. On the one hand, the offence had some serious features, including the following: First, Mr Cicekdag was aware that, for the purposes of reinforcing a demand over a drug debt or the transfer of ownership of a car, a hitherto concealed and loaded gun would be produced and pointed at Mr Duyar. That was very dangerous, culpable and stupid behaviour to which to lend any assistance or encouragement. Indeed, I think that that necessarily involves a high level of moral culpability.
Secondly, the offence occurred in Mr Duyar’s (or at least his family’s) own home, where he was entitled to feel safe.
Thirdly, while the shooting was unexpected, the attendance at Mr Duyar’s parents’ home, with the awareness that a gun would be produced, was not spontaneous but planned. Much earlier that day, Mr Cicekdag had made an inquiry about the presence of persons or cars at the house. Once there, he and Mr Ezadyar waited at the house for a considerable period before Mr Duyar arrived. They also spoke for a good while before the shooting occurred. Thus, there was plenty of time to rethink and desist from this idiotic planned, violent and dangerous confrontation.
Fourthly, Mr Cicekdag’s immediately subsequent behaviour does him no credit. While I accept that he may have acted out of panic or a fear of an unjust accusation, and while I accept that he may not have realized just how badly wounded Mr Duyar was, the fact is that, instead of doing the right thing and helping his cousin, he fled and then, to make things worse, at least toyed with the idea of creating some sort of false alibi or another means of distancing himself from his behaviour.
Fifthly, the offence was committed while Mr Cicekdag was on bail on charges for offences of violence. That said, as was explained by Mr Richter QC, who appeared with Mr Gumbleton on the plea for Mr Cicekdag, those offences, to which their client later pleaded guilty, and for which he was fined, involved comparatively minor instances of affray and causing injury recklessly. In particular, he committed those offences in circumstances where a female friend of his was at a court applying for an intervention order but was threatened with violence by the male respondent to the application. In other words, it seems that he went too far in defending a woman from an immediate threat of violence, when she was seeking a court’s protection from future violence.
On the other hand, there are features of the offence which tend in the other direction. First, Mr Hannan, who was led by Mr Rose QC on behalf of the Director, accepted that, in the circumstances of this case, Mr Cicekdag’s offence is less serious than it would have been had he been the shooter. To be sure, being “involved in the commission of an offence”, as opposed to being the one who directly commits the offence (or “the principal offender”), may or may not affect the gravity of an offence or the culpability of the offender. An offender who procures, assists or encourages another to commit an offence may be more or less culpable than the principal offender, or such an offender may be equally culpable. As I apprehend it, the principal difference here that informs the Director’s concession is that, whereas the shooter had the choice whether to produce the gun and, once he did, as to how the gun was to be handled, Mr Cicekdag did not. Instead, while he participated by knowing and intending that the gun would be produced to enforce the demand, on the facts before me, I cannot say that he had any control over when and in what circumstances the gun would be produced and, once it was, just how it was to be or was handled. It may not be the most significant of distinctions in Mr Cicekdag’s favour, but it is of at least some moment, and it is one on which I am prepared to act, particularly in light of the Director’s concession.
Secondly, on the evidence and concessions before me, it is not open to say whether the gun was aimed or fired deliberately at Mr Duyar at the crucial time or was no more than a spontaneous reflexive reaction to his lunging towards the person holding the gun. That is not to deny the gravity of the deliberate presentation of the gun in violent, unlawful and dangerous circumstances. Nor is it to suggest that such behaviour is anything other than very culpable. But it is not in the same category as, say, a deliberate shooting of a person at close range with an intention to harm falling just short of an intention to cause really serious injury. And, here, as I have already explained, Mr Cicekdag’s behaviour is to be treated as being one step further removed from the shooter as well, albeit he was aware that the loaded gun would be produced and pointed at Mr Duyar in order to reinforce a demand.
Thirdly, unlike many other instances of manslaughter, there was only the one act of violence – presentation of the loaded firearm in the circumstances that obtained – and only the one shot fired. There was no attempt to pursue Mr Duyar after the gun discharged. Thus, it was not a repeated, gratuitous or prolonged assault.
Fourthly, that the discharge and its result were unexpected, although not unforeseeable, is, I think, reflected in the way in which both Mr Cicekdag and Mr Ezadyar fled in panic.
Mr Richter submitted that the offence falls into the “mid-range of gravity” of manslaughter. Mr Hannan submitted that it is a “serious example of manslaughter”. In so far as labels like those matter, in my view, both submissions are correct. Balancing all considerations, I would classify this as a serious example of manslaughter within the mid-range of gravity.
Mitigating factors
I turn now to the factors in mitigation on which Mr Cicekdag is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Richter on the plea.
Background
Omer Cicekdag is the second of four children born to Naile and Tarik Cicekdag. His parents met in secondary school in Turkey, before coming to Australia. His mother’s parents had migrated to Australia in 1970, but her family was in Turkey at the time she completed school. Naile and Tarik were married in Turkey and moved to Australia in about 1988, before having four children.
Mr Cicekdag has three sisters: Tugba (aged 29); Busra (21); and Dilara (19). None of his sisters has a criminal record. All are single and have no children. They live with their mother.
The children were raised in Keysborough. Naile and Tarik bought a family home in that area when they moved to Australia. Naile initially worked sewing from home, with her aunt (namely, Mr Duyar’s mother Saadat) and her mother (Hikmet). Tarik worked as a factory-hand.
Regrettably, Tarik was violent to his wife and, on occasions, to his children. Being the only boy in the family, Mr Cicekdag bore the brunt of his father’s violence to the children. He protected his family as best he could. His mother was hospitalized on a number of occasions and also attempted suicide. Potentially ruinously, Mr Cicekdag witnessed his father stab his mother and also saw the effects of self-harm on the part of his mother. His mother still sees a psychiatrist and takes medication.
In 2001, when Mr Cicekdag was aged eleven, his mother decided to take the children to Turkey in order to get away from her husband’s violence. She was able to do this with the assistance of her parents. Upon this separation, which became permanent, Mr Cicekdag took up the role as father figure to his sisters and provider for the family, despite his tender age. This is reflected in the character references, to which I shall come later.
In 2002, his mother returned to Australia and the family resumed living in the Keysborough house, but without Tarik. While the rest of the family had been in Turkey, Tarik had bought a kebab shop in Noble Park. Despite his parents’ separation, Mr Cicekdag worked for his father in the shop, to ensure there was an income that provided for his mother and sisters.
In about 2004, Mr Cicekdag and his family found out that their father had married a woman from the Philippines while he was still married to Naile. They discovered this when Tarik’s second wife came to Australia and started harassing Naile and the children.
Mr Cicekdag attended Wallaroo Primary School and Minaret College, and then Chandler High School up until Year 10. From the age of twelve or thirteen, he was at the kebab shop more than he was attending school. He managed to progress from year to year, but left school part way through Year 10 in order to save the family business. His father was spending all of his time in the Philippines with his other family, which resulted in the decline of the business.
Mr Cicekdag worked at the kebab shop for a year before returning to education. He attempted to repeat Year 10 at Cleeland Secondary College, but left when his father was imprisoned in 2007, as a result of his illegal importation of tobacco from the Philippines. The family then closed the kebab shop.
In 2008, from the age of eighteen, Mr Cicekdag took up employment in the sales industry, working full-time for Telstra and Crazy John’s. He also worked part-time in the evenings as a children’s soccer coach.
On 4 March 2010, when aged twenty, Mr Cicekdag travelled to Turkey to live with his girlfriend Busra Kirmaci. They married that same year. Busra was the daughter of the butcher that had a shop next door to the kebab shop. The Kirmaci and Cicekdag families had known each other in this context for several years. Mr Cicekdag was particularly close to the Kirmacis and has become an integral part of their family since marrying Busra.
Mr Cicekdag and his wife lived in Turkey for four years. He worked in a gym, ultimately becoming the manager. They returned to Australia in April 2014 so that Busra could receive the best treatment possible for her ulcerative colitis (which is a chronic inflammatory bowel disease).
Since returning to Australia and prior to his arrest on 18 June 2015, Mr Cicekdag has been the permanent carer for his wife and the guardian for his younger sisters. At the time of the offence, he was living with his younger sisters while his mother was in Turkey.
Upon his eventual release, Mr Cicekdag intends to take up full-time employment and start a family with his wife. As evidenced by the references, he has two offers of employment: one from Sam Ercan of Bankable Concepts Pty Ltd; the other with Emad Nayef of Hairhouse Warehouse and Australian Skin Clinics.
Having set out that background, I turn now to the mitigating factors.
Plea of guilty
First, Mr Cicekdag pleaded guilty to manslaughter as soon as he was indicted on that charge, instead of murder.
The guilty plea was offered after a contested committal hearing and, in particular, in the lead-up to the commencement of the trial in November 2016. Thereafter, discussions continued between the parties, and an indictment charging manslaughter was ultimately filed in July this year. Initially, the matter was listed for a contested plea hearing, but the parties eventually settled their differences and the plea proceeded in the more usual way. While the plea of guilty, therefore, was not offered or entered at the earliest stage, it is still significant in several ways.
First, the plea of guilty has obviated the need for what would have been a stressful trial and has spared the witnesses the ordeal of reliving these events and being cross-examined about them.
Secondly, given the behaviour of Mr Ezadyar – including his fleeing the country immediately after the killing – his uncle’s part in that departure, his uncle’s refusal to answer questions when examined compulsorily, even when with the protection of a certificate under s 128 of the Evidence Act 2008 (Vic), and a host of circumstantial considerations, it is plain that Mr Cicekdag had an arguable defence to both murder and manslaughter. Thus, while his plea of guilty to manslaughter has avoided the risk of a conviction for murder, he has also foregone the chance of an outright acquittal, which, in my view, adds more weight to the plea of guilty.
Finally, the guilty plea involves an acceptance by Mr Cicekdag of moral and legal responsibility for his actions and a willingness to facilitate the course of justice.
Remorse
The second factor in mitigation is that I am satisfied that Mr Cicekdag is genuinely sorry for, and understands the impact of, his actions. There are four reasons for that conclusion.
First, in the circumstances of this case, his plea of guilty indicates remorse. As I have said, he could have chosen to run a trial in the hope of an outright acquittal. But, in pleading guilty and foregoing that chance, I think he has shown some remorse.
Secondly, while he fled the crime scene and at least toyed with the idea of creating a false alibi or the like, Mr Cicekdag has done the right thing since then. For example, in addition to entering a plea of guilty, on the plea hearing, he read aloud the following letter of apology to Mr Duyar’s family:
I would like to sincerely apologise to you all for or the loss of Ali in the unfortunate circumstances that unfolded on that tragic day. There is not a single day that goes by where I don’t think of Ali and the events that took place that day. I wish he was still here with me and his family. I wish I stayed with him. I wish I had called an ambulance. I wish I had comforted and assisted him. I wish I had not run out the back door like a poltroon. I am aware that you as a family have gone through so much pain and suffering. [Your] loss is irrevocable. I lost a very good friend. [You] lost a son, husband, father, brother and an uncle. He was the light of the Duyar family. He will always live on in my mind and heart. I wish you all can find the capacity to forgive me.
Thirdly, the character references tendered on the plea are replete with observations of his remorse.
Fourthly, since Mr Duyar and the other victims of his crime are part of his own extended family, he will have a constant reminder of the hurt he has caused whenever he thinks of those people or looks into the faces of any member of his family.
Finally, when Mr Cicekdag read his letter of apology in Court, those sentiments, in context, struck me as a potentially compelling testament to his remorse, insight and essential decency. Having reflected on the totality of the material before me more carefully since then, I am satisfied that those impressions were correct.
Hardship of imprisonment
The third matter in mitigation is the fact that Mr Cicekdag is responsible for the death of his own cousin will make it likely that his time in custody has been, and will continue to be, more onerous than usual. He has done and will have to do his time – and indeed live the rest of his days – knowing that he killed his cousin and thereby caused grave hurt to his own family.
Further, while it was not submitted that there is any exceptional hardship to his immediate family in his absence, the hardship of Mr Cicekdag’s incarceration will be increased by his knowledge that his wife (who, as I have said, is unwell) and family will be without his care and support while he is in prison.
Good character/limited prior criminal history
The fourth mitigating feature is that Mr Cicekdag has only a very limited prior criminal history and yet also has some very positive character traits.
Mr Cicekdag’s only prior criminal matter concerns an appearance before the Children’s Court in 2007, when he was only seventeen. On charges of affray, reckless conduct endangering serious injury, intentionally causing injury, theft of a motor vehicle, theft and unlicensed driving, without conviction, he was placed on a youth supervision order for twelve months. Given his age at the time, the penalty imposed and the period that has elapsed since, I regard these prior matters as being of only slight weight in the sentencing synthesis.
I have already mentioned his subsequent convictions for affray and recklessly causing injury. These convictions, of course, are not to be treated as prior matters, but may go to questions such as his prospects of rehabilitation. That said, the circumstances surrounding those offences, and the penalty imposed, again suggest that they are of only minor significance.
On the other hand, the history outlined by Mr Richter and the numerous character references, which were tendered without objection, show that Mr Cicekdag is a young man who has many very positive character traits. As a boy, he defended his mother and his sisters as best he could against his father’s brutal domestic violence. Still as a boy, he left school to work in order to help provide for his family. As a young man, he has continued to support his wife, his mother and his sisters both financially and emotionally. Finally, he is regarded by others as being kind, compassionate, loving, generous, honest, respectful, family-oriented and inherently good.
Balanced against this powerful evidence of good character is the evidence that, around the time of the offence, Mr Cicekdag was in possession of two handguns (albeit not the gun used to shoot Mr Duyar). While he has not been convicted of any offences of this nature, this evidence, which was not disputed, cannot be ignored in assessing his character.
Overall, however, I am satisfied that the evidence of Mr Cicekdag’s positive character traits is a better indicator of his true nature, which in turn augurs well for his prospects of rehabilitation, to which I shall return shortly.
Relatively young man
Before doing so, however, I shall mention the fifth matter in mitigation, which concerns Mr Cicekdag’s relatively young age. While he was not a boy at the time of the offence, he was only 25. While that age might be getting beyond the threshold of those considered youthful, that, to me, is still young enough to engage the principles concerning younger offenders, albeit in a more limited way.
All else being equal, a younger person is less likely to appreciate risk or consider consequences. I think it is evident in the foolish, violent and dangerous nature of the plan to present a loaded gun to his cousin, and in his panicked behaviour in the aftermath of the shooting, that Mr Cicekdag lacked the appropriate appreciation of the risks associated with assisting or encouraging the behaviour that led to a tragic death.
In my view, despite the maturity foisted upon him as a result of his father’s craven and disgraceful behaviour, Mr Cicekdag was, at the time of the offence, and still is at an age where his values and attitudes were and are still being formed. It is of course a great pity that he has had to continue to develop those values and attitudes while in prison, but that, of course, is an unavoidable consequence of the nature and gravity of his crime. He has already spent two-and-a-half years in prison, and, as will be seen, he must remain there for some time yet. But one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Cicekdag was, and is, young enough, and his history and character are such, that rehabilitation remains an important consideration in his case.
Strong prospects of rehabilitation
Sixthly, I am satisfied that Mr Cicekdag has very strong prospects of rehabilitation. There are several reasons for that conclusion.
First, his plea of guilty, remorse, previous good character and relatively young age all suggest positive prospects of rehabilitation.
Secondly, his history of supporting and caring for his family and the offers of employment make it plain that he can work hard, and that he will have the opportunity and the motivation to do so upon his ultimate release from prison.
Thirdly, it is apparent that Mr Cicekdag has had numerous visits from family and friends while in prison. In my view, that he has the strong support of those close to him augurs well for, and will remain important to, his ultimate rehabilitation.
Fourthly, Mr Richter explained, without contradiction, that, while in custody, Mr Cicekdag has completed a six-week course during which he was taught how to mentor disadvantaged prisoners, including those with various disabilities. He has then employed that learning by mentoring such prisoners within the system. Thus, he is using his time wisely, which is what I would have expected given the evidence of his history and nature.
It is for those reasons that I assess Mr Cicekdag’s prospects of rehabilitation as very strong.
Additional punishment through forfeiture of car
The final matter in mitigation concerns the forfeiture of Mr Cicekdag’s car.
As a result of his conviction, because Mr Cicekdag’s Jeep was “used … in connection with … the commission of the offence”, that property is “tainted” and, upon an application by the Director, is liable to be forfeited to the Minister.[6] The Director has made such an application, which is not opposed by Mr Cicekdag. I shall make that forfeiture order shortly.[7] The parties agree that the car is valued at between $25,000 and $28,000 and that it was acquired lawfully by Mr Cicekdag.
[6]See the Confiscation Act 1997 (Vic), ss 3(1) (the definition of “tainted property”), 32 and 33.
[7]Other items will also be forfeited in this way, but they are of little or no value, and therefore are of no relevance to the point at issue.
In R v McLeod,[8] the Court of Appeal made several points about forfeiture that are apposite to the present case. At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor on sentence, since it places the offender in a worse position than he was in before the commission of the offence. That is, forfeiture may have a punitive or deterrent effect. The sentencing principle of proportionality requires that the nature and extent of any forfeiture of property be considered in fixing sentence.
[8]R v McLeod (2007) 16 VR 682 at 685[14]-688[23] (Maxwell P, Redlich JA and Habersberger AJA).
As I see it, s 5(2A)(a)(i) of the Sentencing Act 1991 (Vic) allows those principles to apply to the forfeiture of the Jeep, for that provision states that:
In sentencing an offender, a court … may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property … (i) that was used in, or in connection with, the commission of the offence.
In my view, forfeiture of a car worth as much as $28,000 is a significant extra penalty for Mr Cicekdag to pay, which penalty must be weighed in the sentencing synthesis. It is rare that a fine is imposed in addition to imprisonment for this type of offending. I think that, unless forfeiture of the car is taken into account when fixing the prison sentence, there is a risk that the sentence might be a little heavier than it needs to be in order to achieve the applicable purposes of sentencing, such as punishment and deterrence.
An illustration of the weight this additional penalty represents is the fact that the maximum fine that could have been imposed, in addition to imprisonment, for an offence of manslaughter committed in June 2015 was about $350,000.[9] While the effective additional penalty on Mr Cicekdag, at about $28,000, is, proportionally, a small amount compared with the maximum fine available, it is, I think, still a relevant consideration.
[9]The maximum fine for the offence is 2,400 penalty units. In June 2015, a penalty unit was $147.61. Therefore, the maximum fine was 2,400 x $147.61 = $354,264. See s 5 of the Crimes Act 1958 (Vic), ss 109 and 110 of the Sentencing Act 1991 (Vic) and s 5(3) of the Monetary Units Act 2004 (Vic).
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in this case of manslaughter. The community should understand that behaviour of the type engaged in by Mr Cicekdag is denounced by the courts and will result in a substantial term of imprisonment that reflects that a person’s life has been taken by an unlawful and dangerous act and that, in this case, the lives of Mr Duyar’s loved ones have been marred forever in consequence.
Specific deterrence
While the need for specific deterrence must be given some weight too, that need is moderated by the fact that Mr Cicekdag for the rest of his life will have to live with the fact that he had a part in killing his own cousin. His plea of guilty, remorse, previous good character and strong prospects of rehabilitation also reduce the weight to be accorded to specific deterrence.
Rehabilitation and protection of the community
Rehabilitation, however, remains an important consideration. This is particularly so because Mr Cicekdag has such strong prospects of rehabilitation.
I do not consider that there is any need to add a separate component in sentencing for protection of the community. I consider it unlikely that Mr Cicekdag would act in such an unlawful and dangerous way again. The sentence that results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community.
I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Cicekdag will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are strong. I shall return to this theme when considering the non-parole period in particular.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.
Sentencing statistics show that, for the period from 2011-12 to 2015-16, prison sentences for manslaughter ranged from about two to twelve years’ imprisonment; that the average (or mean) sentence ranged from about six years and eleven months’ imprisonment in 2013-14 to eight years and eleven months’ imprisonment in 2014-15; and that the median sentence was eight years’ imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to nine years; the median non-parole period was five years and six months; and the modal non-parole period was five to less than six years.[10]
[10]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 199, April 2017, pp 3-5.
Those statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel referred to several cases involving manslaughter by shooting, some of which also concerned accessories instead of principal offenders. I have considered all of these cases, and a host of others decided over the last twenty years.[11] Those involving prison sentences, in instances where pleas of guilty were entered, ranged in head terms from as little as three years and nine months’ imprisonment to as much as eleven years’ imprisonment.
[11]The cases to which counsel referred me, and the others I considered, included: R v Reynolds (Unreported, Court of Appeal, 28 May 1997); DPP v Barnwell [2002] VSC 280; DPP v Sypott [2004] VSCA 9; R v Galas & Ors [2006] VSC 161; R v Helal [2007] VSC 135; R v Galas & Mikhail [2008] VSC 513; R v Stratton (2008) 20 VR 539; DPP v Phillips [2009] VSCA 68; R v Nguyen [2010] VSC 528; DPP v Smith [2012] VSC 314; R v Howard [2014] VSC 194; R v D’Angelo [2014] VSC 522; R v Munt & Ors [2014] VSC 675; R v Torun [2015] VSC 146; DPP v Torun [2015] VSCA 16; R v Lai [2015] VSC 346; and R v Rapovski [2016] VSC 706.
While each case must turn on its own facts, and while there will always be room for exceptional cases or especial leniency where it is warranted, the impression I get from the survey of those and other cases is that offences of manslaughter attracting sentences of around four or five years’ imprisonment are few and far between these days. The raw statistics mentioned earlier also confirm my impression that sentences for manslaughter have increased in general in recent years.
It is possible to make more nuanced comparisons between the present case and other particular cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. None of those I considered was quite the same as the present case. And, in any event, sentences are not precedents to be applied or distinguished.
Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, particularly where the deceased is killed by a single gunshot and where the offender is a secondary party, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.
In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Cicekdag’s particular offence of manslaughter in view of his particular array of personal circumstances.
Submissions on sentence
Mr Richter submitted that, weighing all considerations, but particularly in light of the accessorial basis of liability, it was open to impose a sentence with a non-parole period of only three years, with a long potential period on parole.
While Mr Hannan was careful not to put a range to the Court, he considered it his obligation to submit that, were I to sentence in a way that resulted in a non-parole period of the length suggested by Mr Richter, I “may very well be leading [myself] into error”.
While I too am careful not to involve myself in considering the types of submission on sentencing range that are now prohibited, I can and should say that I accept Mr Hannan’s particular submission. Put simply, whatever head sentence I might consider appropriate for this case, a non-parole period of only three years would not adequately reflect the gravity of the offence or the weight to be given to the relevant sentencing purposes, and/or would place excessive weight on mitigating factors, as important as they are.
I do, however, accept Mr Richter’s submission that this is a case in which it is appropriate to fix a longer potential period on parole – or, put another way, a shorter non-parole period than might ordinarily be imposed. This is because, allowing fully for the gravity of the offence and the immense grief it has caused Mr Duyar’s family and friends, nevertheless, Mr Cicekdag’s plea of guilty, remorse, positively good character traits, relatively young age and very strong prospects of rehabilitation, while they necessarily combine to reduce the head sentence and therefore the non-parole period, are entitled to especial weight when fixing the non-parole period in this case.
In my view, it is appropriate that Mr Cicekdag be encouraged by a shorter non-parole period to work towards his earliest possible release. If he does act on that incentive, it should improve his chances of complete rehabilitation and thereby redound to the benefit of the community in the longer run as well.
Disposal and forfeiture orders
Before formally announcing sentence, I note that Mr Hannan applied for a disposal order and two forfeiture orders in respect of various items, including the Jeep. The applications were not opposed. In those circumstances, I shall make the orders sought.
Sentence
I turn now to sentence.
Mr Cicekdag, please stand.
Balancing all factors as best I can, for the manslaughter of Ali Ishan Duyar, Omer Cicekdag is convicted and sentenced to nine years’ imprisonment with a non-parole period of five years.
Pursuant to s 18 of the Sentencing Act, I declare that 918 days (including today) of pre-sentence detention be reckoned as served under this sentence.
Absent Mr Cicekdag’s plea of guilty, it is likely that I would have found his remorse and prospects of rehabilitation to be less compelling. Thus, while it is always a difficult thing to estimate, I declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Cicekdag’s plea of guilty, I would have imposed a sentence in the order of eleven years’ imprisonment with non-parole period of seven-and-a-half years.
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