R v Demirtel - [2010] VSC 363

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1605 of 2009

THE QUEEN

YADIGAR DEMIRTEL

---

JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2010
DATE OF SENTENCE:	11 June 2010
CASE MAY BE CITED AS:	R v Demirtel
MEDIUM NEUTRAL CITATION:	[2010] VSC 363

---

CRIMINAL LAW – Causing Serious Injury Recklessly – Guilty Plea – Attack on husband - Diagnosed schizophrenic – Circumstances of alcohol abuse – Consideration of s 93 of the Sentencing Act 1991 - R v Verdins, Buckley & Vo (2007) 16 VR 269 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gibson	Office of Public Prosecutions
For the Accused	Mr S. Moglia	Victoria Legal Aid

HIS HONOUR:

Yadigar Demirtel, on the 22nd February 2010, you pleaded guilty to one count of causing serious injury recklessly to your husband Nezim. You had originally been charged with attempted murder, but I regard the resolution of the matter in this way as appropriate in all the circumstances.

The offence occurred on 19 May 2009. Shortly after 1.00pm, police attended the premises following a complaint made by you relating to domestic violence. Upon attending, police observed you yelling out abuse. No one else was inside the house at that time. You were affected by alcohol, having consumed whiskey earlier in the day. Your husband was in the backyard working in the garden and was unaware you had called police. While police were in attendance, you displayed some aggression towards your husband, resulting in his leaving the house to go for a walk. The police then left the premises and no further action was taken by them.

After about half an hour, just after 1.30 that afternoon, your husband returned from his walk. He went directly to the backyard. Whilst he was tending to the garden, you approached him from behind. You were carrying what was probably a brown wooden bowl, later found in the kitchen sink, which was full of petrol. You splashed some petrol over your husband and proceeded to ignite it by use of either a cigarette lighter or a match. As a result, you husband suffered extensive burns to various parts of his body, including his hands, arms, legs, face, left ear, head and neck. He was in extreme pain. You were heard by your son Razim to say, “Let him burn”.

Your husband grabbed a hose and doused the flames, and then ran to a neighbour’s property in View Street, for assistance. A neighbour called emergency services and your husband was transported by ambulance to the Alfred Hospital. Upon examination, he was found to have suffered approximately 15 per cent burns to the body. He had been placed into an induced coma before undergoing surgery to further manage his wounds. He remained in intensive care as a result of respiratory issues and agitation and combativeness issues. These problems necessitated further surgery.

He remained in hospital for an extended period of time in order…

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 Demirtel

Details

AGLC: R v Demirtel [2010] VSC 363
Case: [2010] VSC 363
Decision Date: 11 June 2010

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Demirtel involved the defendant, Demirtel, who pleaded guilty to charges of recklessly causing serious injury to his husband. The incident in question arose from a violent attack which left the husband severely injured. Demirtel had a diagnosed history of schizophrenia and was also struggling with alcohol abuse at the time of the offence. The court was required to consider the applicability of section 93 of the Sentencing Act 1991 in assessing the appropriate penalty for the offence, taking into account the mitigating factors of the defendant’s mental health and substance abuse issues. This decision drew on the precedent established in R v Verdins, Buckley & Vo.

The court had to determine whether the mitigating factors were significant enough to warrant a departure from the general principles of sentencing for such offences. The primary legal issue was whether the sentencing principles under section 93 of the Sentencing Act 1991, which mandates that the court must consider the circumstances of the offender, should lead to a reduction in the sentence given Demirtel's mental health condition and alcohol dependency. The court also had to balance these mitigating factors against the gravity of the offence and the need for deterrence and protection of the community. The application of R v Verdins, Buckley & Vo provided a framework for assessing the degree of culpability and the role of personal circumstances in sentencing.

The court found that while Demirtel’s mental health and alcohol abuse were significant mitigating factors, they did not entirely absolve him of responsibility for his actions. The court recognised the severe harm caused to the victim but also acknowledged the complex personal circumstances of the defendant. Ultimately, the court decided to impose a sentence that reflected both the need for punishment and the requirement to consider the defendant's personal circumstances. The final sentence was determined to be appropriate under the circumstances, balancing the need for general deterrence with the specific mitigating factors presented.

Orders