R v Gorgulu
[2022] VSC 391
•8 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WARRNAMBOOL
CRIMINAL DIVISION
S ECR 0026 2021
| THE QUEEN | Crown |
| v | |
| UMIT GORGULU | Accused |
---
JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21, 22, 23, 24, 25, 28 February 2022 and 1, 2, 3 March 2022 (trial in Warrnambool); 30 May 2022 (plea in Melbourne) |
DATE OF SENTENCE: | 8 July 2022 |
CASE MAY BE CITED AS: | R v Gorgulu |
MEDIUM NEUTRAL CITATION: | [2022] VSC 391 |
---
CRIMINAL LAW – Sentencing - Intentionally cause serious injury – Accused acquitted of attempted murder – Victim and accused were friends – Victim set alight by accused – Offending spontaneous and unplanned – Limited but relevant criminal history – Prospects of rehabilitation – Delay – Accused immediately contrite and apologetic – R v Kilic (2016) 259 CLR 256 – Sentenced to ten years’ imprisonment with a non-parole period of seven years’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson QC | Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Marshall Jovanovska Ralph |
HER HONOUR:
Umit Gorgulu, you were found guilty by a jury of one charge of intentionally causing serious injury. You were acquitted of the more serious charge of attempted murder. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.
At the time of the offending, it is common ground that you and the victim, Kevin Taplin, regarded each other as good friends. You were sharing a house together in Portland.
On the afternoon of 18 April 2019, you and Mr Taplin commenced driving from Portland to Hamilton, to collect a motorbike belonging to Mr Taplin. Mr Taplin was driving his black Mazda utility, and you were in the passenger seat. Approximately ten kilometres before reaching Hamilton, you became enraged and threw your mobile phone out the window. Mr Taplin said this happened suddenly and for no discernible reason. He pulled over. You got out and gestured for him to leave you, which he did. Mr Taplin continued on to Hamilton to meet Fiona Dunn, who was to assist him with the retrieval of the motorbike. Ms Dunn was not ready, as she had just returned home from work, so Mr Taplin decided to return to where he had left you. Mr Taplin found you walking along the side of the highway and pulled over. You abused him and tried unsuccessfully to grab his car keys. Mr Taplin again drove off, leaving you by the side of the road, and returned to Hamilton where he met up with Ms Dunn.
You hitched a ride into Hamilton with a passing motorist, Ms Hughes. She described you as polite, other than when you were talking about your mate. You would become angry, upset and agitated, and told Ms Hughes that you would burn his bike and ‘fuck him up’. You used her mobile phone to call Mr Taplin and left a voicemail. In that message, you told Mr Taplin that you were not threatening him, but if he went home without you he will be ‘fucked up’, and ‘when I fuck you up, you will understand more’. Ms Hughes left you near the KFC in Hamilton. After she had dropped you off, she received a call from Mr Taplin, who had rung the number that you had called from when you left the voicemail. Ms Hughes told Mr Taplin where she had left you, and Mr Taplin and Ms Dunn returned to collect you. At this point, Mr Taplin and Ms Dunn were in Ms Dunn’s car, and Mr Taplin’s black Mazda utility was back at Ms Dunn’s house in Eversley Street in Hamilton. Ms Dunn said you were yelling and screaming at Kevin, and you were really angry. You threatened to kill him, and told him you hated him. You were seated in the back seat. Mr Taplin was in the passenger seat, and you repeatedly punched him to the head.
Mr Taplin said that once back at Eversley Street, he just wanted to leave. Ms Dunn went inside to attend to her dog. Mr Taplin attempted to drive off in his Mazda utility, and you tried to prevent this. Ms Dunn heard you yelling and screaming at him not to drive, and that you wanted to drive. Mr Taplin drove off at walking pace, with you hanging onto the driver’s side of the vehicle. The driver’s door was open. He came to a stop at a reserve at the end of the street. You grabbed a full five litre petrol tin from the rear tray of the utility, and threw approximately two litres of fuel over Kevin Taplin and the interior of the cabin.
The petrol tin was there by chance. It had been placed there by Mr Taplin, as it may have been needed to retrieve the motorbike. An issue at trial was whether you had thrown fuel deliberately at Kevin Taplin, or on the roof of the utility, with the result that some fuel also spilled onto Kevin Taplin. In your record of interview, you gesture to show how you threw the fuel, with the can raised over your head and being held with two hands. You were standing on the ground at the time. Fuel went over Mr Taplin, who was seated in the cabin, as well as other parts of the vehicle. I find that you deliberately threw fuel on Mr Taplin.
You then produced a cigarette lighter and ignited the flame of the lighter, setting fire to both the fuel and Kevin Taplin. The jury must have rejected your explanation that the fire was an accident, and you lit the cigarette lighter to just try and scare Mr Taplin. I find, consistent with the jury verdict, that you deliberately set fire to Mr Taplin and at the time you did this, you intended to cause him serious injury.
After you lit the fuel, Mr Taplin was immediately engulfed in flames. He was able to exit the vehicle, and had the presence of mind to roll on the ground in an attempt to extinguish the fire. Neighbours came to assist. Ms Collette, who was fortuitously first-aid trained, cleared the immediate area and assisted Mr Taplin. Another neighbour also came and helped. Mr Taplin was hosed down in Ms Collette’s driveway and police, ambulance and the fire department were called to the scene.
Mr Taplin was taken to the Hamilton Hospital and then airlifted to the Alfred Hospital. He spent two or three weeks in an induced coma and was intubated. He experienced multiple burns to his head and neck region, chest, right upper limb and left hand. There was also damage to his lungs and eyes. He underwent numerous treatments, skin grafts, surgeries and rehabilitation. Mr Taplin was moved from the Alfred Hospital to the Caulfield Rehabilitation Hospital, where he made an uncomplicated recovery, and was finally released on 6 June 2019. Physically, he has been left with scarring and residual lung damage.
You sustained a more minor burn injury to your right hand and lower left leg. You were spoken to by police at the scene. You told Constable Barling that you had an argument because you did not want Mr Taplin to drive because he is a bad driver when he is on drugs. You said you poured petrol on the roof of the car and lit your lighter to scare him out of driving, but did not think it would actually ignite.
You were again spoken to by police at the Hamilton Hospital, and later participated in a record of interview. You consistently told police that you did not mean for this to happen, and described Mr Taplin as your best mate. You maintained that you splashed the petrol and played with the lighter, but you never wanted to hurt him and you did not purposely set him on fire.
Mr Taplin’s victim impact statement was read on the plea. He endured excruciating pain during his two year recovery period, and has been left with physical, psychological and emotional scars. He suffers from post-traumatic stress disorder, agoraphobia and insomnia. As a result of what you did, he no longer believes it is possible to completely know or trust anyone. His physical scars are a lifetime reminder of this crime. He worries about what will happen when you are ultimately released.
Turning to your personal circumstances. You were born in Turkey and are the middle of three children. Your parents’ marriage was arranged, and you told Mr Ball, psychologist, that your father physically abused your mother. This made you feel sad, angry and helpless. Your father was very affectionate to your sister, but with you, he was unaffectionate and strict, including physically disciplining you if you did anything wrong.
Your parents divorced when you were 11 years old. Following this, your older brother lived with your mother, and you and your younger sister lived with your paternal grandmother. You completed high school in Turkey, and were popular with both teachers and students.
Your father came to Australia in 1994, and you followed him six years later, aged 18. At age 20, you left to live with a friend’s family. You were married aged 22 and have one daughter, who is now 16 years old. Your marriage ended after six years, when your partner left you for another man. Mr Ball reports that you have struggled with depression, anxiety and shame ever since, which is borne out by your medical records. You have not seen your daughter for ten years due to a family violence intervention order, and you feel ‘very sad’ about this.
You have no formal training qualifications or higher education. Initially, you worked in a kebab business in Australia, and then received on-the-job training as a bricklayer. You worked in the construction industry until the breakdown of your marriage in 2010. Since then, you have worked very little. You commenced using cannabis in 2011, and drinking alcohol in 2012. You used cannabis for two years, and no longer consume alcohol. You used methamphetamine regularly from the ages of 33 until 37, typically consuming around one gram per week. You reported that you do not like drug use, and used it as a coping mechanism after your marriage failed, and because the people around you were using drugs.
The psychological report of Mr Ball was tendered on the plea. In written submissions, your counsel relied on his opinions as reducing your moral culpability. Mr Ball found you had a low average IQ, impaired capacity for generally good judgment, lacked insight into your general psychological functioning and offending behaviour including ‘anger issues’, and met the DSM-5 criteria for moderate stimulant use disorder (in remission) and anti-social personality disorder. However, on the plea, you counsel did not rely on any of the Verdins principles. In my view, the findings and opinions of Mr Ball do not reduce your moral culpability for this offence. They do, in part, help explain your conduct and your offending history.
Your explanations for being angry with Mr Taplin on this day include that Mr Taplin had lied to you about needing to retrieve a motorbike, and was ‘chasing drugs’. A small quantity of ice was found in Mr Taplin’s bag after the fire, but there is no evidence he had consumed illegal drugs on this day. You told Mr Ball you had used a small amount methamphetamine three days prior to this incident, and describe yourself as having ‘anger issues’. You also told Mr Ball that you were angry because Mr Taplin had struck an animal on the road but refused to stop. At trial, it was suggested you saw an injured echidna by the side of the road, but Mr Taplin refused to stop and allow you to assist the injured animal. This was denied by Mr Taplin. I am doubtful either version is true, but in any event, it does not matter. The reasons you were angry on this day are of limited relevance, as they do not excuse or adequately explain the extreme level of anger you displayed towards your friend.
Your counsel submitted you were prepared to plead guilty to the charge of recklessly cause serious injury, and that offer demonstrates you have ‘an awareness and an insight into [your] moral culpability’. I note that first, you did not plead guilty to that offence when arraigned, and secondly, you were not found guilty of that offence. In my view, the offer does not alter or reduce your moral culpability for this offence. It is relevant when considering remorse, which I will come to.
You did not plead guilty, but you must not be punished for running a trial, particularly where the prosecution persisted with the more serious charge of attempted murder, of which you were ultimately acquitted. Often, when an offender pleads not guilty, there is no remorse or acceptance of responsibility by way of mitigation. This is particularly so where an offender flatly denies the offending. In your record of interview, you present as genuinely sorry and regretful for what has occurred, although you maintain it was an accident and describe your conduct as ‘silly’. Mr Ball describes you as expressing ‘simplistic regret for your actions’. Somewhat unusually, given you pleaded not guilty, I do accept you were immediately and sincerely contrite and apologetic for the harm you had caused. This cannot be characterised as an expression of genuine remorse for the crime itself, but nonetheless it is a relevant factor which weighs in your favour when sentencing you.
You have a criminal history commencing in 2004 with charges of theft, for which you received a without conviction fine. From 2004 to 2012, there were several court appearances for driving whilst suspended and breaching court orders. In 2012, you were jailed for three months for breaching a suspended sentence and an intensive correction order. Later in 2012, you received a 12 month community correction order for contravening a family violence intervention order, make threat to kill and driving offences. Between 2012 and 2017 there were four further court appearances for charges including possessing drugs of dependence, possessing a controlled weapon, contravening a family violence intervention order, contravening a community correction order, criminal damage, unlawful assault and threatening to destroy or damage property. In 2016 you received one month jail, and otherwise received a series of community correction orders. Your criminal history reveals an ongoing and unresolved problem with anger and anger management, and a disregard for court orders.
You have been in custody during the entire COVID-19 pandemic, and I accept the pandemic has made conditions in custody more difficult and onerous. This was particularly so during the multiple lockdowns which occurred during 2020 and 2021. Personal visits were suspended, prisoners were frequently locked down, and access to courses and programs was reduced or halted altogether. As a remand prisoner, your access to rehabilitative programs in custody is already compromised. Mr Ball notes that you have been unable to undergo anger management programs due to your status as a remand prisoner.
Whilst your counsel did not rely on delay, the prosecution helpfully provided a chronology of this matter. I find there has been considerable delay through no fault of yours. In April 2020, your committal hearing was vacated due to COVID-19, and was ultimately not concluded until February 2021. It was a further 12 months before your trial was heard. You have spent over three years on remand. Whilst there is no evidence as to how this delay has impacted you personally, I accept as a general proposition that having this very serious matter hanging over your head for such a lengthy period of time would have been a source of stress and anxiety.
According to Mr Ball, you satisfy the diagnostic criteria for anti-social personality disorder. You lack empathy, are largely mistrustful, and when crossed, you are likely to respond impulsively and become angry. Given your age, you are also likely to develop severe and debilitating depressive symptoms later in life, which may arise when you look back across lost relationships, time in prison and squandered life chances. In his opinion, you will require psychological treatment and engagement with an anger management program. Positively, you told Mr Ball you find psychological treatment helpful, and you are willing to engage with treatment, including anger management.
You are employed within the prison, and have participated in a number of programs. Your mother and brother continue to support you. You have regular Zoom calls with them, as well as with one friend. You are not currently on medication, and believe your overall general health has improved whilst incarcerated. On the material I have, there have been no incidents or problems in custody, and you have been making the most of your time on remand.
Your counsel submitted your prospects of rehabilitation are good, and you should be given a ‘longer than usual’ parole period. Overall, I assess your prospects of rehabilitation as somewhere between reasonable and good. You will require support when you are returned to the community, but in my view, there is no reason to impose an unusually lengthy parole period. You are not, for example, a very young or first time offender, and you have a history of breaching court orders designed to assist your rehabilitation. Specific deterrence, that is the need to deter you personally from further offending, has some relevance here, given your criminal history. Given the seriousness of your crime, that purpose will be met by the jail term you inevitably face.
The prosecution submitted this is a particularly bad example of this crime. The act involved a number of deliberate steps, the victim’s vehicle was destroyed, and the injuries were horrendous and life-threatening. In the immediate lead-up to the offence, you had threatened and assaulted the victim. The prosecution, relying on Elsayed v The Queen,[1] submitted that whilst an offender cannot be punished for uncharged acts, the Court can take into account, as an aggravating feature, conduct which was connected with the offending and was of lesser seriousness than the offence charged.[2]
[1][2019] VSCA 113.
[2]Ibid [63].
The prosecutor drew the Court’s attention to R v Kilic[3] (`Kilic’), a decision of the High Court. The prosecutor submitted that here, whilst of course there are differences, there are a number of relevant similarities. In that case, the offender set fire to his pregnant girlfriend, in circumstances where there were ongoing relationship difficulties and after she had spent the weekend away from him against his wishes. The offending was spontaneous, opportunistic and unplanned. The victim arrived home and was seated in the car. The offender was angry and behaving erratically. There was, by chance, a five-litre can of petrol in the back seat. He poured the fuel over the victim and left the car. He returned a few minutes later and used a cigarette lighter to set her on fire. The victim suffered horrendous injuries. She was left badly scarred, with protracted cosmetic and social implications, diminished hand and limb functionality, and her future quality of life was reduced. Due to her serious injuries and long-term prognosis, the victim elected to terminate her pregnancy. The offender was young, had a history of breaching court orders, and had pleaded guilty. He was sentenced to 14 years’ imprisonment for intentionally causing serious injury.[4]
[3](2016) 259 CLR 256.
[4]Together with two uplifted summary offences, the offender received a total effective sentence of 15 years’ imprisonment with a non-parole period of 11 years’ imprisonment.
The prosecution submitted that whilst here, you and Mr Taplin were not in an intimate relationship, you were friends or best mates, and Mr Taplin trusted you. The prosecution submitted this is an aggravating factor, or alternatively it might be seen as a factor that informs the overall context and background.
Your counsel submitted Kilic is a more serious example of this crime. It involved domestic violence; the long-term impact of the injuries was more serious; the victim terminated her pregnancy due to the severity of her injuries; the offender’s anger was more prolonged; and the offender threw the fuel, left, and returned ‘minutes later’ and set fire to the victim. Your counsel submitted that unlike Kilic, you did not walk away after throwing the fuel, and return to set the victim on fire. Rather, your act was one continuous action, with no pause for reflection.
Your counsel conceded the fact that you and Mr Taplin were ‘best mates’ was aggravating, but it was a ‘significantly lesser aggravating feature’ than if the offender and victim were in an intimate relationship. In a similar way, it was conceded that your prior conduct on this day is an aggravating circumstance, but should be given little weight, and must not be used as evidence of prior planning or intent.
Consistent with the jury verdict, I find the following:
·You became enraged and very angry with Kevin Taplin earlier in the day, on the drive from Portland to Hamilton. It is unclear exactly why you became so angry.
·Your anger did not abate from the time you were first left by the highway until the time of the incident.
·The tin of petrol was not yours. It was easily accessible and available by chance.
·I accept the decision to set fire to Mr Taplin was made moments before you lit the cigarette lighter. Despite your earlier threats, I am not satisfied on the material that your decision to set fire to and seriously injure Mr Taplin was made at any earlier stage. Your offending was spontaneous and unplanned.
·You had opportunity to walk away from the situation, but you chose to remain in circumstances where you were enraged and angry with Mr Taplin. By clinging to the vehicle, you prevented Mr Taplin from leaving, which he was clearly trying to do in an attempt to prevent further abuse and violence.
Given the reliance placed on Kilic, it is necessary to state that in my view, the offending in Kilic is an objectively more serious example of this crime.[5] In explaining why, I am in no way minimising your offending or Mr Taplin’s suffering. In Kilic, the violence was perpetrated in the course of a domestic relationship against the offender’s pregnant partner, which elevated the need for general deterrence. It involved family violence and a serious breach of trust. The victim was left with very serious injuries which significantly diminished her future quality of life. Her severe injuries led her to terminate her pregnancy. The offender did plead guilty, but the sentencing judge found the offender’s prospects of rehabilitation were difficult to assess, and he was a risk to the community.
[5]A more detailed account of the offending is set out in Kilic v The Queen [2015] VSCA 331 at [5]-[6].
Your earlier violence and threats towards Mr Taplin are part of the overall relevant circumstances, and aggravating to some small extent. I am mindful you are not charged with assault or make threat to kill. The most aggravating feature of your conduct immediately prior to the incident is that you prevented Mr Taplin from leaving, in circumstances where he had not responded to your violence, was in his own vehicle and just wanted to get away.
The relationship between you and Mr Taplin is not, in my view, an aggravating feature of this offence. As the High Court has said, not every question for a sentencer is a choice between extremes, one classified as aggravating and the opposite classified as mitigating.[6] Your prior friendship forms part of the overall circumstances of this offending. It also explains why one of the impacts on Mr Taplin is a loss of the ability to trust people, because he had trusted you as a friend.
[6]Weininger v The Queen (2003) 212 CLR 629, 637, [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Deliberately setting fire to an innocent person is a serious example of intentionally causing serious injury. Any sentence must adequately punish you for your crime, publicly denounce your conduct, and give due weight to general deterrence. Mr Taplin’s injuries are fairly described as horrific and life-threatening. Fortunately he has made a good recovery, and the long-term effects are not as severe as they might have been. However, his positive recovery does not detract from the seriousness of the injuries you caused.
In all the circumstances, on the single charge of intentionally causing serious injury, you are convicted and sentenced to ten years’ imprisonment. I fix a non-parole period of seven years’ imprisonment.
I declare you have served 1177 days by way of pre-sentence detention, and such period is reckoned as time already served under this sentence.
I make the disposal order sought by the prosecution.
2
4
0