R v Demirtel
[2010] VSC 363
•11 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1605 of 2009
| THE QUEEN |
| v |
| YADIGAR DEMIRTEL |
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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 | |
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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.
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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 to address allied health issues, such as functional strengthening, occupational therapy, wound infections and secondary revision skin grafting. He spent just over a month at the Alfred Hospital. He then became an inpatient at a rehabilitation facility, namely the Caulfield Hospital, then went to another rehabilitation facility known as the Daniela Community Centre.
As at April 2010, your husband was awaiting plastic surgery to try to release the contraction to the left side of his neck and to minimise scarring and reduce pain. I received a medical report dated 16th April from the Medlock Clinic.
When police spoke to you at the premises following the offence, you were heard to say “No-one ever believes me, I have burnt him like he has burned me for 40 years.” According to statements from police officers, you were said to be at times in an agitated, irrational and aggressive state. Unsuccessful attempts were made by police to calm you and, as a result, they thought it necessary to call in a trained negotiator from a Response Unit to contain the situation.
At about 6.40pm, you were taken into custody by the Critical Incident Response Team and conveyed to the Fawkner Police Station. At about 7.30pm, a forensic medical officer, Dr Crow, attended and assessed you. It was decided that another assessment take place the following day after you had slept. You were re-assessed the following day by a forensic medical officer with the assistance of an interpreter and found to be unfit for interview, hence there is no record of interview.
A plea hearing was conducted before me on 16 April 2010 in which the following matters were outlined. You are now 60 years of age, having been born on 1 January 1950. Your husband is 73 years of age, you have been married for 40 years since about 1969. Together you have three adult children Julia, Razim and Marco. You and your husband came to Australia from Turkey in 1973. You have a long history of schizophrenia. You lived with your husband and two of your children, Julia and Razim, at the matrimonial home in Glenroy.
For many years leading up to 19 May 2009, your married featured disharmony and friction which led to frequent arguments between yourself and your husband. On occasions, these arguments featured some hostility towards your husband. There was also friction between you and your son. The police have been called to a number of premises on a number of occasions, and it is fair to say the occupants at your home on View Street were known to the police at the time of the offending on 19 May. In the week leading up to that day, you had apparently been unwell and yelling a lot out in View Street, according to statements from some neighbours.
In the absence of a victim impact statement, your husband’s attitude was put on the plea by Mr Gibson:
It’s probably best to describe it this way, I feel, Your Honour, that while she does not forgive her he understands her condition and wishes her well in terms of future rehabilitation and taking of her tablets.
As I have already mentioned, you have been married for more than 40 years, but you and your husband will not ever live together again, as I understand it. Mr Moglia, who appeared on your behalf on the plea, made careful and detailed submissions on your behalf. Three psychiatry reports were tendered. Mr Moglia pointed out the evidence in the brief which indicated your behaviour on the day in question and the days preceding it indicated that you were unwell. That material included observations of your yelling out in the street, your behaviour in the presence of the police was at least in part irrational, and included dousing yourself with petrol and threatening to light it. You were found to be unfit for interview.
It is clear enough on the material that your relationship with your husband had broken down and was marked by incidents of violence. The most important features in this case relate to your psychiatric condition before, at the time of, and after the offending. Dr Lester Walton, who examined you within a month of these events, thought that the events of themselves and your condition when he examined you in prison indicated to him that serious mental illness “may have been relevant”.
Dr Danny Sullivan provided a report dated 2 February 2010. He had interviewed you at Thomas Embling Hospital on 30 August 2009. He described your history from your birth in Turkey up to this offending, your marriage in 1968, coming to Australia in 1974, the fact that you have three children who are the centre of your life and the fact you have factory worked for a number of years but have not worked since about 1991. He said you were generally isolated without extended family in Australia.
In his report, he said that you had described your relationship with your husband as follows:
Her relationship with her husband was by her account bad and she described that he had been violent towards her and used to denigrate her. She described that he was critical of her and gradually she withdrew from activity she had previously enjoyed. She reported that although she bought nice clothes, he refused to let her wear them and told her that tracksuits were good enough. Consequently she said that she did not go out anywhere and spent her recent life in a tracksuit. She felt that she was better now, that she was away from her husband and there was no-one to argue with. She reported that she related well with the other woman and the staff in the unit. She told me that her children and grandchildren visited.
Dr Sullivan described your mental health history, which appeared to have begun in about 1991 when you were admitted to the Royal Park Psychiatric Hospital. You were later diagnosed with schizophrenia. It appears that you were regularly in contact with local mental health services and had been prescribed both anti-depressant and anti-psychotic medication. In the four or five months leading up to May 2009, you had discontinued your anti-psychotic medication.
Dr Sullivan set out the following under “Opinion and Recommendations”.
Ms Demirtel is a 59 year old separated Turkish born woman charged with a serious assault on her husband involving setting him alight. Her background was a paternal limited schooling in migration, manual employment and most notably a conflictual relationship with her husband for many years. Ms Demirtel has an established diagnosis of paranoid schizophrenia, this is manifest in bizarre persecutory and sematic delusions and auditory hallucinations. She has had a number of psychiatric admissions, and has been followed up in the community by various mental health services. In the past she has also self harmed and has exhibited depressive symptoms for which she has been maintained on antidepressants. She may have a depressive illness or alternatively the diagnosis might be better characterised as schizophrenia/schizoaffective disorder, as there are prominent mood congruent delusions. She has a longstanding history of alcohol dependence. There is no indication that Ms Demirtel had ever undergone alcohol related treatment interventions. The effect of alcohol dependence is likely to render Ms Demirtel dis-inhibited when intoxicated. The combination of such sustained alcohol use and of psychotic illness may be associated with cognitive impairment. Whilst this does not necessarily appear clinically significant, neuropsychological testing may be indicated to plan for treatment. It is not possible on the information available to determine whether there is significant personality disorder.
Ms Demirtel’s conflictual relationship may have exacerbated personality features, but it's not clear on the information available that she had a significant personality disorder. It seems more likely that chronic alcohol use and conflict inter-relationship might account for behaviours and attitudes which overlap with personality disorder. In addition, there is generally a disintegration in personality in people with longstanding and clinically significant psychotic illness. At the time of the alleged offence, Ms Demirtel was observed by witnesses to appear intoxicated. There was significant matrimonial disharmony, although this appears to have been longstanding. There is no suggestion in the materials that she was experiencing overt psychotic symptoms at the time of the alleged offending. There is a clear causal connection between the alleged offence and the alcohol intoxication, longstanding marital disharmony and the impaired judgment associated with long term psychotic illness. At the time of the offence it is unlikely that Ms Demirtel was able to make a calm or rational decisions, and her judgment was likely markedly impaired. The effect of her intoxication was likely to be dis-inhibiting. Ms Demirtel’s subsequent behaviour indicates that she could not appreciate fully the wrongfulness of her actions.
I think it is difficult to separate out the relative contributions of intoxication and impaired judgment associated with psychosis. However, I believe both are relevant to the alleged offending. Were it not for intoxication and mental illness, I doubt that her difficult relationship would have arisen, persisted or resulted in these events. Ms Demirtel will require indefinite treatment for her mental illness. She requires treatment for alcohol dependence. Her functioning is significantly impaired by these conditions. She should not ever drink alcohol again. She should remain on antipsychotic and other psychiatric medication as indicated. I would be concerned about her living independently. I believe that she should be in shared or supported accommodation, henceforth. In the event that she is incarcerated Ms Demirtel would require ongoing support, and this might be provided in the Marmick Unit, or if particularly unwell, at Thomas Embling Hospital. In the community Ms Demirtel should receive ongoing mental health care and social support. While on medication abstinent from alcohol, and not in relationship, her risk of future violence is low.
After you were seen by Dr Sullivan you were released on bail and you were referred to the Broadmeadows Community Care team at North Western Mental Health.
Dr Marie Kiang in her report dated 12 April said:
Yadigar has been very distressed each time we would discuss her offence against her ex-husband. She has been deeply remorseful about her actions and has been expressing feelings of relief that he is still alive. She acknowledged the years of abuse from her ex-husband but clearly stated that she had never had any intention to harm or to kill him. In summary, based on my clinical experience of Yadigar, she can be managed in the community provided there’s an ongoing assertive follow-up and treatment and she is abstinent from alcohol.
I accept the matters contained in that report as to your attitude to what you have done, and particularly your remorse. It should be noted that I make no finding as to the actual conduct of your husband’s abuse of you or, for that matter, your abuse of him, but I do have regard to your belief about the matter.
Mr Moglia referred me to a number of authorities, including R v Verdins, Buckley & Vo[1] and R v. Howell.[2] There is no doubt that a number of the principles set out in Verdins apply to your case. It was accepted by the prosecutor that it was so, but it was argued that you should still be sentenced to a term of imprisonment beyond the 128 days you have already served. This was a serious example of offending of its kind, particularly having regard to the injuries suffered by your husband. The maximum term of imprisonment for the offence is 15 years.
[1](2007) 16 VR 269.
[2](2007) 16 VR 349.
Your case is exceptional, although your condition was not assisted by your failure to take your medication and was aggravated by your long term abuse of alcohol. I am satisfied that your mental state and your underlying mental illness at the time of offending was such that both general deterrence and specific deterrence cannot loom large in your sentence. I am satisfied that your moral culpability is also reduced, but by pleading guilty as you have, you have accepted your legal responsibility. Although there is little direct evidence, it can also be said that a term of imprisonment would be more onerous on you than others and could well have an adverse effect on your mental health.
It was in that context that I earlier announced that I did not, at this stage, intend to sentence you to an immediate term of imprisonment. I was urged by Mr Moglia to give consideration to releasing you on a restricted involuntary treatment order, RITO, pursuant to s 93 of the Sentencing Act 1991. I had expressed reservations about such a course at the time of the plea because the maximum term of any such order is two years, and that as a result of making such an order, you would be outside the criminal justice system.
I was prepared to receive the relevant report, and I did so. I received a report from Dr David Muirhead, Director of Clinical Services, North-West Area Mental Health Service dated 31 May 2010. In short, Dr Muirhead did not recommend such an order in any event, in those circumstances I could not make such an order. The matters of concern are these; it is clear from the above report that you must take your medication and refrain from the use of alcohol. I appreciate that the second matter will be very difficult for you, but it is quite necessary in your case. Dr Muirhead also said this:
Unfortunately it would appear that the prospect of incarceration has not been sufficient motivation to encourage her to abstain from alcohol use. In view of this, I would be concerned that her alcohol use will increase, were she subject to an RITO and the threat of incarceration removed. I am of the opinion that alcohol use is the highest risk factor contributing to her potential aggressive behaviour. It is likely that an RITO would be successful in persuading her to take medication but I am not confident it would persuade her to abstain from alcohol use. I do not think the services available to treat her environ, ITO, would be sufficient to prevent her from using alcohol and remove the risk of her re-offending. In view of this I do not recommend that a restricted and voluntary treatment order RITO should be made.
You must also work out a better relationship with your son. It may be that you will not be able to live in the one household. The matter came before me on 4 June last, for further plea. I ask you to consider whether or not you would agree to be released on a good behaviour bond on conditions for five years, which would include you not drinking. Your counsel has informed me that you would accept those conditions. Mr Gibson submitted to me that a suspended sentence would be more appropriate because it carried a more direct threat of imprisonment. I favour the course of adjournment because it can be for five years, and because I can impose conditions on it. A suspended sentence can only be suspended for three years and cannot have conditions attached to it. In particular, there is nothing about a suspended sentence which would compel you not to drink.
You must understand this; if you break your promise made here today, either by re-offending or breaching any condition, I will have no alternative but to send you to gaol, and you must also understand that it would be for a period of years.
You will be convicted of causing serious injury recklessly, Nasim Demirtel. I direct that the proceedings be adjourned for five years on you giving an undertaking, which means making a promise, promising me and promising the Court in the following terms:
That you will appear if called upon during the adjournment.
That you will be of good behaviour during the period of the adjournment.
That you observe the following special conditions:
That you attend the North Western Mental Health Service.
That you will obey the lawful directions of the director of clinical services or his or her nominee.
That you will take as directed any medication which is prescribed for you, that you not consume alcohol except with the consent of your treating medical practitioner.
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