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…

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 Cicekdag

Details

AGLC: R v Cicekdag [2017] VSC 781
Case: [2017] VSC 781
Decision Date: 21 December 2017

CaseChat Overview and Summary

The case of R v Cicekdag involved the defendant, Cicekdag, who was charged with manslaughter after a confrontation with a victim, who was also his cousin. The confrontation involved a loaded.22 calibre gun, which discharged accidentally, resulting in the death of the victim. Cicekdag pleaded guilty to the offence of manslaughter by assisting or encouraging another person in the commission of a dangerous and unlawful act. The case was heard and determined by the Victorian Court of Appeal.

The primary legal issues the court needed to address were the appropriate sentence for the offence, considering the circumstances, the plea of guilty, and the defendant's background. The court also had to determine whether the offence was committed while the defendant was on bail for another matter, which could influence the severity of the sentence. Additionally, the court had to decide on the forfeiture of the vehicle used in connection with the offence.

The court acknowledged the circumstances of the offence, including the accidental nature of the shooting and the defendant's remorse. The court also considered the defendant's limited criminal history, good character, and the personal burden of imprisonment, given that the victim was his cousin and the defendant is responsible for caring for his unwell wife and family. The court noted the defendant's young age and strong prospects for rehabilitation. Given these factors, the court determined that a sentence of nine years' imprisonment with a non-parole period of five years was appropriate. The court also ordered the forfeiture of the vehicle used in the offence under the Confiscation Act 1997 (Vic).

Orders