R v Deniz
[2001] VSC 36
•23 February 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL JURISDICTION | Not Restricted |
No.1434 of 2000
| QUEEN |
| v |
| HASAN DENIZ |
---
JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 – 25 January & 2 February 2001 | |
DATE OF JUDGMENT: | 23 February 2001 | |
CASE MAY BE CITED AS: | R v Hasan Deniz | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 36 | |
---
Criminal Law – Sentence – manslaughter – characterisation of offence – unlawful and dangerous act – café fight – knife – 53 year old Turkish migrant – 8/6 years
---
APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Mr. J. Rapke Q.C. with Mr. D. Brown: | Office of Public Prosecutions |
| For the Accused | Mr. B. Walmsley | Cole & Magazis |
HIS HONOUR:
Hasan Deniz, on 25 January 2001 you were convicted by a jury of the manslaughter of Izzet Kutbay at Coburg on 5 October 1999; the jury having acquitted you of murder.
On the afternoon of 5 October 1999 you went to the International Coffee Lounge in Sydney Road Coburg to associate with other men of Turkish origin and to play cards. You spent several hours playing the Turkish card game, "Batak", with the deceased and two other men Veli Genc and Niyazi Serpinli. At about 7 o'clock an argument commenced at the table over the trivial issue as to which suit was trumps. It culminated in the deceased either pushing or throwing his cards into your face and perhaps punching you. Whatever occurred, your glasses were pushed into the bridge of your nose, cutting it, and you fell to the floor against a nearby wall heater. There was some dispute between the witnesses called by the Crown as to what actually occurred during this attack upon you – some of them suggesting that the deceased may have punched you up to five times and may have put his hands around your throat. Whatever in fact occurred however it is clear that the deceased, who was powerful, well built, 20 years younger than you and considerably larger acted in a violent and aggressive way towards you.
At about the time of this assault the deceased swore at you in Turkish using words which conveyed an insult of an extremely offensive nature.
After the altercation over the card game you and the deceased were separated by the other patrons of the coffee shop. You were taken outside to the footpath of Sydney Road where another friend of yours, Ercan Guvenis, sought to prevent any further trouble by offering to drive you home. You declined his offer for reasons which remain unclear whilst making a statement in Turkish which may have conveyed a threat towards the deceased. I say "may" because of an inherent ambiguity in the Turkish phrase which you used such that you may have been expressing a wish to make peace with him rather than a wish to inflict some unspecified harm upon him.
Some witnesses deposed that whilst you were outside the deceased continued to shout insults in your direction although the evidence on this point is somewhat equivocal. What is clear however is that at some point you directed a particularly offensive Turkish insult in the direction of the deceased through the partly open door of the shop whereupon he ran across the shop, through the door and into the street. The two of you wrestled. In the course of that wrestling you stabbed the deceased three times with a large folding knife which you must have taken from a pocket and opened prior to, or contemporaneously with, his rushing at you. One of the stab wounds which you inflicted produced a massive injury to the deceased's heart from which he died some short time later.
In the course of your struggle with the deceased several of your companions tried to restrain your hand with the knife in it but by the time one of them was able to do so the fatal wound had been inflicted.
Shortly after you stabbed the deceased, and probably before he died, you walked off along Sydney Road. Over the next few days you communicated a high degree of distress to friends at what had happened and, some eight days after the stabbing, gave yourself up to police.
Upon your trial you maintained that you had stabbed the deceased in self defence in that you had used the knife to repel a murderous attack by him upon you. It is implicit in its verdict that the jury was satisfied that you had not acted in self defence. Otherwise you would have been entitled to a complete acquittal.
The Crown case was that after you went out into Sydney Road you extracted the folding knife from your pocket, opened it and concealed it behind your back whilst uttering a vile insult at the deceased designed to have him retaliate physically. The Crown maintained that you intended then to at least inflict really serious injury upon him, if not to kill him. This case must also have been rejected by the jury. Had it not been rejected you would have been convicted of murder.
The jury in your trial were instructed that if they were not satisfied as to your guilt on the charge of murder they should consider a verdict of manslaughter on one of two bases; namely that the homicide which you undoubtedly committed was partially excused on the basis of provocation or that such homicide occurred as a result of an unlawful and dangerous act unaccompanied by murderous intent.
Both your counsel and the Crown prosecutor appeared to me to accept that the jury's verdict was probably based upon a failure by the Crown to exclude the possibility that you were acting under provocation at the time the homicide occurred. Mr. Walmsley put it that you ". . . stand(s) to be sentenced for an unlawful killing that is partially excused on the basis of proven provocation . . .". Mr. Rapke Q.C. spoke of ". . . a merciful verdict founded on a wafer thin provocation finding by the jury . . .". In the case of Mr. Walmsley's submission it appears to have been based largely on your concession that at the time of the homicide you had at least an intention to cause really serious injury, with the consequence that the homicide could only be characterised as murder, excusable homicide on the basis of self defence or manslaughter on the basis of provocation.
When seeking to characterise a homicide following a jury's verdict of manslaughter for sentencing purposes it must be remembered that manslaughter explained by provocation carries with it a finding of a murderous intention to kill or inflict really serious injury. It is otherwise if its proper characterisation is that of an unlawful and dangerous act causing death.
I have given much anxious consideration to the proper characterisation of this homicide. Having done so I am not satisfied that it is necessarily explained on the basis of provocation. It seems to me to be equally open to find that you killed the deceased whilst you were engaged in the unlawful act of brandishing a knife or even wounding him with the intention of inflicting some minor injury upon him and that such act would be regarded by a reasonable man as being dangerous. If such were the case, of course, this homicide would be properly characterised as one of involuntary manslaughter rather than of voluntary manslaughter. The consequence of such a characterisation from your point of view would be that you would be entitled to be sentenced for a crime committed without murderous intent.
The evidence of provocation in this case was extremely weak. The initial altercation, the assault and even the grievous Turkish insults do not, in my view, amount to sufficient provocation to explain this homicide in terms of its being partially excused. This is particularly so when one takes into account the facts that the stabbing occurred some time after the first physical altercation after you had been offered a ride home, and that there was no evidence that at any stage you were "out of control". Further, your consistent contention that you acted in self defence is inconsistent with the conditions necessary for a provocation defence to succeed.
Indeed, your counsel specifically disavowed any reliance on provocation during your trial and only reluctantly acquiesced in it going to the jury as an issue. The importance of characterising this homicide as being either voluntary or involuntary manslaughter (as those terms are commonly used) lies in the fact that sentences for involuntary manslaughter are generally slightly lower than those for the former offence. Accordingly, having regard to my inability to be satisfied that this manslaughter can be properly explained on the basis of provocation I propose to consider your sentence on the footing that you were convicted of manslaughter by an unlawful and dangerous act.
You are 53 years of age. You came to Australia in 1974 at the age of 27 from Turkey and have been a naturalised Australian citizen for some time. You are married with four children ranging in age from 27 to 14. By occupation you have been a barber. You have worked somewhat sporadically in recent years and your relationship with your wife, and perhaps your family generally, has been less than totally amicable. It appears you have been living only sporadically with your wife. Your counsel described you as having a "dislocated lifestyle" characterised by inadequate and unsatisfying employment and an uncontrolled gambling habit. However, your wife has stood by you during this trial and to that extent at least your marriage is still intact.
In 1981 you received a number of stab wounds yourself in a fight in a coffee shop similar to that outside which the present homicide took place. Your assailant was, coincidentally, one of the Crown witnesses in this trial although, probably for very good reason, nothing was made of that in your defence.
You have a number of prior convictions, some of which are relevant in considering the disposition of this case.
In 1994 you were convicted of being found in possession of a dangerous article, namely a knife the description of which is similar to the knife which was used in this homicide. In 1995 and 1996 you were convicted of unlawful assaults; one of them apparently occurring in a coffee lounge similar to that outside which this homicide occurred. Each of these cases was dealt with in a Magistrates Court and the penalties imposed were very low.
The relevance of these prior convictions in your present circumstances is that you cannot come before this court claiming a clean record so as to entitle you to claim an entitlement to some mitigation on that account. Further, in so far as these offences involve violence and the carrying of a knife they suggest the need for an element of specific deterrence in your sentence.
You have other minor prior convictions which are irrelevant for present purposes other than that they illustrate the gambling habit of which your counsel spoke. I ignore them completely.
The deceased in this case was a married man aged 37 years with one child, a daughter who is 10 years of age. Victim impact statements placed before the court attest to the devastation that this homicide has caused to the deceased's family. He is described by his wife as ". . . a simple man (but) . . . a happy man". His wife, his daughter and other close relatives have all suffered psychological damage as a result of this tragedy for which you are to blame.
In determining an appropriate sentence I am required to take into account the principles set out in s. 5 Sentencing Act 1991.
One of the principal functions of the criminal law is to protect the sanctity of human life. It prescribes a maximum penalty of 20 years imprisonment for the offence of which you have been convicted. As I have already noted, however, sentencing practice suggests that the penalty for manslaughter involving an unlawful and dangerous act is generally less than it would be for a homicide partially excused by provocation.
When considering the nature and gravity of the offence for which you are being sentenced I take into account the trivial nature of the dispute which led to the deceased's death and the circumstances surrounding that death generally which lead me to a conclusion that within the range of appropriate sentences for manslaughter caused by an unlawful and dangerous act this offence is towards the graver or more serious end. Having regard to the jury's rejection of your plea of self defence, your culpability and degree of responsibility for the offence is also high, notwithstanding the actions of the deceased. In reaching this conclusion I considered the submissions of your counsel to the effect that there are still elements of self defence present which in some way diminish your responsibility. I disagree. On any view, arming yourself with a lethal weapon and using it as you did indicates significant criminality within the wide range of criminality encompassed by the offence of manslaughter.
I have taken into account the matters set out in the victim impact statements to which I have referred concerning the effect of this crime upon those closest to the deceased. This is not to say that the homicide of a loved and respected member of our community deserves greater condemnation than the homicide of someone less loved or less respected. The law extends its protection to all citizens equally so that the homicide of a much loved and respected person must be treated, in this regard, as the same as that of someone not so regarded for purposes of sentencing.
I accept the evidence of the witness called on your behalf, Mr. Kingsford, that you are a sincere Muslim and that you have suffered, in your lifetime, from many of the disabilities common to migrants arising from your inability to speak or read English as well as you would like and the inevitable consequences on employment and otherwise such disabilities generally cause.
In your case the purpose for which a sentence of imprisonment is imposed involves elements of punishment, deterrence, denunciation and rehabilitation.
The community demands that you be punished for this offence. You will be punished by the imposition of an immediate custodial sentence. Deprivation of liberty is indeed a punishment even if only for a short time. By reason of your time on remand you are already aware of that. You will continue to be punished in that regard.
Further, it is essential that this Court try to deter others who might be inclined to carry weapons such as the knife which you carried and to use them, with whatever intent, upon their fellow human beings. Such behaviour is abhorrent and in a civilised society cannot be tolerated. It is hoped that the sentence imposed upon you will demonstrate that the legal consequences of criminality of this type are harsh indeed.
So far as you yourself are concerned I have little doubt that the after effects of this dreadful episode will remain with you for the rest of your life. That may be sufficient to deter you from re-offending. However, you should also be aware that one of the aims of the sentence about to be imposed upon you is to ensure that you do not.
The length of your sentence must also reflect the community's view that crime such as that which you have committed should be denounced and publicly denounced as being outside the range of human behaviour permitted in this society.
In so far as rehabilitation is relevant in your case, I accept your counsel's assertion that you have been a model prisoner whilst on remand. Any chance that prison might contribute to your rehabilitation will be enhanced should you continue to remain such a prisoner.
Your counsel urged on your behalf that I impose upon you a sentence which would entitle you to release in the near future. Not surprisingly the Crown opposed such a course. In the circumstances which I have outlined I am unable to accede to your counsel's submission.
The sentence of the Court is that you be imprisoned for 8 years and I further order that you serve a minimum of 6 years before being eligible for parole. I declare that the period of 500 days during which you have been in custody awaiting trial and sentence be reckoned as already served under this sentence and I direct that this declaration and its details be noted in the records of the court pursuant to s. 18(4) Sentencing Act 1991.
---
0
0
0