R v Goral, Goral & Akcay
[2001] VSC 208
•31 May 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 424 of 2001
| THE QUEEN |
| v |
| MICHAEL EDMUND GORAL |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 20 and 27 April 2001 | |
DATE OF SENTENCE: | 31 May 2001 | |
CASE MAY BE CITED AS: | R v Michael Edmund Goral, David Henry Goral and Suleyman Akcay | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 208 | |
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Criminal Law – Sentence – Manslaughter and robbery – Vulnerable victim – Pre-sentence detention – disparity.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | J. McArdle QC with Mr. C. Winneke | Office of Public Prosecutions |
For the Accused M. E. Goral | G. Mullaly | Stary Myall |
For the Accused D. H. Goral | D. Brustman | Victorian Legal Aid |
For the Accused S. Akcay | J. Smallwood QC | Victorian Legal Aid |
HIS HONOUR:
I have signed and hand down orders as to samples and disposure. I will also hand down my reasons for rulings made on the applications for severance and a stay. It is not necessary for the prisoners to stand.
Michael Goral, David Goral and Suleyman Akcay, you have each pleaded guilty to manslaughter and robbery. The robbery was at Lindenow in Gippsland on 29 August 1999 of Patrick Collins. The manslaughter was as to the killing of Mr Collins.
David Goral, you have also pleaded guilty to two further offences. The first is of trafficking in cannabis at Bairnsdale in July and August 1998. The second is of failing to appear to answer bail on 2 December 1998 to answer the trafficking in cannabis charge.
Michael Goral and David Goral are brothers born and raised in Victoria. The two of you met up first with Suleyman Akcay in Bundaberg in Queensland. In mid 1999 Michael Goral came to Victoria for a couple of months and did construction work. Later in 1999 David Goral and Suleyman Akcay went independently to Sydney, met there and then went to Mildura looking for work.
David Goral spoke to Suleyman Akcay of his past knowledge of a hotel at Lindenow and of its publican, Pat Collins. Twice before David Goral had stolen money from the hotel. David Goral telephoned Michael Goral. A proposal to rob Pat Collins involving all three of you was discussed and plans were made. David Goral arranged to pick up Michael Goral at Bairnsdale from the home of another family member on Friday 28 August 1999. The three of you met up late on that Friday. You promptly bought, at a supermarket, stockings and gloves for the planned robbery. You drove out to the hotel. You watched the hotel from up the road. You noted that Pat Collins lived in a house adjoining the hotel. You noted the security lights came on automatically to cover the area between the hotel and the house. You chose not to carry out the robbery on the Friday night. You stayed the night in an old cabin on a dirt road out the back of Lindenow.
During the Saturday you visited other family members living in the area. On the Saturday night you drove to Lindenow and parked in a side street. You devised a plan to grab Pat Collins inside the house adjoining the hotel. You broke a window and got inside the house and searched it. You saw a safe in a bedroom. You could not find the keys to the safe. You agreed on a more specific plan. It was for Suleyman Akcay to grab and hold Pat Collins. The plan did not involve Pat Collins being hurt. His hands and feet were to be tied with rope, tape was to be placed over his mouth.
Suleyman Akcay had a large knife. It was not to be used to hurt or threaten Pat Collins. It was used for things like cutting the rope and tape.
Shortly after midnight Pat Collins came into his house. He was carrying a cash tin. Suleyman Akcay grabbed him and pushed him to the floor. There he was tied and gagged. The cash tin was opened. So was the bedroom safe using a key taken from Pat Collins. The three of you left Pat Collins securely tied but only loosely gagged. The amount of just over $20,000 was in the cash tin and safe was later divided up between you.
Pat Collins was aged 56 and frail. He suffered from several long term medical problems. He had had recent falls. After you left his house he remained trussed and gagged. He stayed that way for more than ten hours. He was taken to hospital and treated for broken ribs, for bruises to his face and various other parts of his body, and for a cut to his right leg which required many stitches. He was encouraged to stay for a day or two in hospital. He said he preferred to go home and did so later on the Sunday.
In his statement to the police he made light of the incident. On the following Wednesday he was readmitted to hospital. Nine days later again, on Friday
10 September, he died in hospital.
I have read carefully and more than once the Victim Impact Statement which has been made by Toni-Maree Collins, the daughter of the deceased. It refers to the impact of her father's death on herself and on other members of the family of the deceased. It is a short statement but it is a moving one. It has helped to emphasise in a succinct way messages as to the various tragic consequences of an untimely traumatic death. Communicating such messages is an important part of the sentencing process.
The three of you engaged in particularly serious criminal conduct. I have accepted that the plan was to rob Pat Collins and it was not part of the plan to injure him. Nevertheless, the plan involved grabbing him, tying him up and gagging him. It was inevitable that a significant degree of force would be required. Pat Collins was, and was known by you to be, elderly, frail and vulnerable. His vulnerability made him an easier target; selecting him for his vulnerability made you more vulnerable to things going wrong as they did. Unduly rough handling made him more likely to suffer injuries similar to what a sustained beating would be needed to achieve on a younger, fitter man.
Added to the seriousness of you three men planning to rob a frail, elderly man was that the plan was to do so after invading his home in the middle of the night. You took and squandered more than $20,000. Considerations of retribution, general deterrence and special deterrence mean that nothing less than a significant period of years in prison would be appropriate punishment.
I turn shortly to the additional offences to which you, David Goral, have pleaded guilty. In late July and August 1998 you with a man named Skoda and others negotiated as to deals in cannabis. Unknown to you, one of the others was an undercover policeman. On 26 August 1998 a deal was negotiated which involved the purchase of two pounds of cannabis. I was informed that Skoda was dealt with at Bairnsdale and received a sentence of six months' imprisonment suspended for a period of 12 months. On 2 December 1998 you failed to appear to answer the bail undertaking made on 27 August. Relatively, the cannabis trafficking and the failure to answer bail are minor matters. They are still a cause for concern in that they reflect a disdain for complying with the law.
I turn to a number of extenuating factors that apply as to each of the three of you.
You have all pleaded guilty. The courts have often stressed that an appropriate discount must be given where there is a plea of guilty. In some circumstances the discount may be minimal. In your circumstances the discount must be significant. Linked to the plea of guilty to manslaughter there must be made, and I do make, an allowance for the causation issue. You have accepted criminal responsibility notwithstanding an arguable case to the contrary. I accept that a jury might have been troubled about finding that the actions for which the three of you were responsible caused the death of Pat Collins.
You have all experienced the adverse consequences of a delay of more than 18 months in being brought to trial. Included in that period of delay was a period of greater uncertainty linked to awaiting the response to the discharge following the committal hearing in April 2000. I accept that all three of you are remorseful to some degree; that remorse can be seen from the plea of guilty and from aspects of what was said in the police interviews. I have noted what was said to the police as to both actions and discussions before and after leading Lindenow concerning measures to alleviate the potential distress to Pat Collins. It is also apparent from what was said in the police interviews that all three of you were co-operative with the police at that time.
Before I turn to some specifics as to your personal background I would note that there are some common elements. All three of you are the product of a dysfunctional family situation. All three have had limited schooling. In both of those respects Suleyman Akcay appears to have been the most disadvantaged. All three have had trouble getting and holding on to employment. All three have had difficulty maintaining relationships. All three have had trouble maintaining even limited contact with children you have fathered and at times provided for. Michael and David Goral have a supportive mother and some other supportive family members. Such supports are not available to Suleyman Akcay.
Michael Goral, you were born on 11 September 1973. Your prior convictions are between 1993 and 1996. The convictions reflected disdain for the law, particularly, as to using cannabis and respecting intervention orders. There are no assault or other convictions involving direct violence. You have had significant problems with alcohol and with illegal drugs. Your recent work record has been such as to indicate that there has been a maturing with greater stability, and discipline, and less anti-social attitudes.
David Goral, you were born on 8 March 1972 just over 18 months before Michael. Your prior convictions extend from 1990 to 1998 and include many for burglary. There is only one for violence.
Suleyman Akcay, you were born on 6 June 1968 in Turkey. You came to Australia at about the age of six months. Your parents had trouble finding time to care for you. At about the age of five you were sent back to Turkey to live with grandparents. Your schooling, such as it was, ended at about the age of 10 and you went out to work. You came back to Australia in 1985 aged 17. You were ill equipped for work and did fruit picking, and the like. Your prior convictions are more serious than the other two. They relate to 10 appearances in court in three States with sentence of imprisonment resulting from six appearances. The two most troubling convictions were for armed robberies in Sydney and Mildura.
As to them, the information provided to me by Mr McArdle and Mr Smallwood was sketchy. It appears that the Sydney armed robbery was for events at a nightclub in 1986. It appears that the Mildura armed robbery was on a farm in 1989 and to get hold of a vehicle for transport. For the latter a term of five years' imprisonment was imposed. You were released on parole in Victoria and moved back to New South Wales. The parole was breached and cancelled. Cancellation meant that there remained a liability to spend a period of almost two years' in prison awaiting you on your return to Victoria as you did, escorted, in October 1999.
In the seven years from 1992 to 1999 there were four court appearances in Bundaberg in Queensland with short prison sentences being imposed in February 1996 in circumstances linked to a family feud. At times during the last decade you have fathered and cared for children. Since going into custody on 2 October 1999 you have undertaken various courses in prison.
I have carefully considered the evidence admissible against each you as individuals, including what each of you said in the police interviews and including the photographs and video tape tendered on the plea. I am not prepared to make any distinction based on the differing roles in what happened on the night. I am prepared to make limited distinctions in the light of matters going to personal background and prior convictions.
It is necessary that I make certain declarations as to pre-sentence detention under s.18 of the Sentencing Act. I do so declare and direct that there be entered in the court record that I have done so, as to David Goral, for 609 days from 1 October 1999 to date. I do likewise as to Michael Goral for 530 days on the basis that I have been informed that 79 days within the same period are not within s.18. I make no declaration as to Suleyman Akcay. On the other hand, I am prepared to exercise my discretion to take into account pre-sentence detention to which s.18 does not apply. I do so by making an allowance in a broad way for some of the time served between October 1999 and the present time when fixing the non-parole period. The making of an allowance has regard to the principle of totality. The way in which it is made is relevant to an assessment of parity. In making the particular allowance I have noted matters which include that the obligations of parole were not respected, but that that occurred, initially, many years ago. There are deportation and Parole Board decisions to be made in the future. It is not appropriate that I make any allowance for what they might be. I am satisfied that as between the robbery and manslaughter sentences that there should be some, but not substantial, cumulation.
The sentences of imprisonment I impose are as follows:
Michael Goral, for Count 1, manslaughter, eight years' imprisonment; for robbery, two years' imprisonment concurrent as to one year and nine months with the eight years on Count 1. The effective term is eight years and three months. I set a non parole period of six years.
David Goral, for Count 1, manslaughter, eight years' imprisonment; for robbery, two years' imprisonment concurrent as to one year and nine months with the eight years on Count 1. For trafficking in cannabis, one month cumulative on the eight years on Count 1. For failing to answer bail, one week concurrent with the eight years on Count 1. The effective term is eight years and four months. I set a non-parole period of six years and four months.
Suleyman Akcay, for Count 1, manslaughter, eight years' imprisonment; for robbery, two years' imprisonment concurrent as to one year and nine months with the eight years on Count 1. The effective term is eight years and three months. I set a non-parole period of five years and three months.
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