R v Karabay
[2009] VSC 669
•8 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2008 1447
| THE QUEEN |
| v |
| ERGUN KARABAY |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2009 | |
DATE OF SENTENCE: | 8 May 2009 | |
CASE MAY BE CITED AS: | R v Karabay | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 669 | |
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ATTEMPTED MURDER – Breach of intervention order – Domestic relationship – Plea of guilty.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | DPP |
| For the Accused | Mr A. Grigor | Grigor Lawyers |
HER HONOUR:
Ergun Karaby, you have pleaded guilty to one count of attempted murder and one count of recklessly causing injury and you have admitted two prior matters.
In July 2006 you commenced a relationship with Azu Tankir. She was 31 years old at the time, married with three young children. You were 37, also married with two children. The relationship was one where it appears you were passionately drawn to each other but after six weeks Mrs Tankir brought it to an end because in her words "It didn't feel right". You became apologetic but at the same time you were also abusive and threatening. Nonetheless the relationship resumed but it was volatile and turbulent, with up to 15 separations in the year that followed.
At one point in October 2006, after Mrs Tankir had rejected your proposition of a sexual liaison involving a third person, you became abusive and threatened to kill her. In July 2007 there was an incident by the roadside in Broadmeadows where you punched and kicked Mrs Tankir and as a result of this assault, she obtained in Intervention Order against you on 31 July 2007.
You were charged in respect of this assault and you were dealt with at the Broadmeadows Magistrates Court on 30 January 2009. The relationship continued despite the intervention order, but a year later on 30 July 2008, you were seen in the vicinity of Mrs Tankir’s home, and that matter was reported to the police, who charged you with breach of the intervention order.
On 12 August 2008, Mrs Tankir took out another intervention order which presently remains in force until 10 August 2010. On 25 August 2008 you had left your home in Coolaroo and returned at about midnight. You were seen by your wife to be in an intoxicated state. You left the house and returned at 1 am, and then shortly before 3.00am, you again left the house, this time driving your wife’s car.
You drove to where Mrs Tankir lived in Whitford Street, Glenroy. She and her husband operated a café at that address and lived at the back. On this night Mrs Tankir’s husband was at work, and she was asleep with her three children. She was awoken by the sound of smashing glass, and on going to investigate saw you coming through a broken glass window at the front of the shop.
It appears that you had armed yourself with a hammer and smashed the glass to get in. Mrs Tankir, fearing for her safety and that of her children, returned to the back room and lay across her children who were asleep in the one bed, so as to protect them. You picked up a vegetable knife and followed her in to the back room and proceeded to stab Mrs Tankir multiple times to the right side of her body.
In the course of the attack the child Kevin, aged ten, was injured. Throughout the attack you were yelling, “I told you I would kill you”. Mrs Tankir lay still and feigned death. You stopped attacking her and left. Mrs Tankir was able to call the emergency number before collapsing, and police and ambulance responded. She was taken to the Royal Melbourne Hospital where she was diagnosed with multiple stab wounds.
She was later examined by the Registrar in clinical forensic medicine and was found to have suffered nine incised wounds, being to her back, right upper arm, right scapula, right buttock, right rear thigh, right upper abdomen, and right calf, more significantly, one wound is described as having nicked her liver and another wound as having pierced one of her lungs, and it was this wound which was said to be life threatening.
All the incised wounds required suturing, and Mrs Tankir remained in hospital for three days. The child, Kevin, suffered a superficial wound to the leg which required some treatment from a doctor, but did not require suturing.
Having left the premises, you telephone a friend and arranged to meet him. On doing so, Mr Ahmed Yabis saw that your hands were bloody and that you had blood on your nose. You appeared to him also to be affected by alcohol. You told him you had stabbed Yasmin, as you referred to Mrs Tankir, and the two of you then drove around and you then called another friend, Mr Adem Atishali, and arranged to meet with him at the Fawkner Cemetery. You told Mr Atishali that you had killed Yasmin. Your two friends persuaded you to give yourself up and to this end they accompanied you to the Fawkner police station where you were arrested and taken into custody.
You told the police you had taken a large quantity of pain-killers so you were transported to St Vincent's Hospital where you remained until you were medically cleared and released back into police custody on 27 August 2008.
You were again arrested in respect of this matter and you declined to participate in a record of interview which is, of course, your right and you have remained in custody since that date.
You are now aged 38. You remain married and it appears you have the continued support of your wife who visits you weekly. Your daughters are aged four and five. Your only other family members in Australia are your widowed sister and her two sons.
You are the eighth of nine children and you were born in a village out of Ankara. You left school at 12 as you needed to support your family. You worked in unskilled and manual positions and later entered into an informal, arranged marriage. You came to Australia in the 1990s and met your future wife. Together you returned to Turkey and married there and for a time you worked as a taxi driver.
Your sister’s husband was killed here in Australia in a car accident and the family decided that you and your wife should return to Australia to support her. Hence, you returned in 2002 and have, for a time, been employed as a bricklayer. You are presently purchasing your home at Coolaroo and it is said that your desire upon completion of this sentence is to resume a normal life with your wife and children.
A report by clinical forensic psychologist, Mr Patrick Newton, dated 14 April 2009, was tendered in evidence as Exhibit 1. In it he details your personal history and antecedents which I accept. You told Mr Newton that you and Mrs Tankir were passionately attracted to each other but that the relationship was turbulent and that despite the intervention order you continued to see each other at the instigation of either of you. This history of the relationship is consistent with Mrs Tankir’s account of it as it appears in the depositions.
It appears that you had been expecting the intervention order to be lifted but instead, on 12 August 2008, it was extended for a further two years and this brought the conflict in the relationship to a head, no doubt culminating in these offences some two weeks later.
During 2008 you suffered bouts of depression for which you were prescribed antidepressants, and you were drinking alcohol and apparently combining the two. In the days preceding these offences, you reported drinking between 15 to 25 standard drinks a day, and you also reported what Mr Newton described as "a range of impulsive and aggressive behaviours that occurred during 2008 when intoxicated, which, it appears, exacerbated your depression, which in turn led to heavier drinking." You told Mr Newton that these offences occurred after you had decided to commit suicide by taking an overdose of pain medication mixed with alcohol.
Mr Newton reported that a comprehensive evaluation of your mental status revealed no signs of acute psychological disorder, apart from stress related to these court proceedings. You do not report any symptoms of depression or suicidal ideation and your level of intelligence appears to be within the normal range. It appears that your incarceration to date has broken the cycle of your heavy drinking and you are now resolved to abstain from alcohol and follow the tenets of your faith in that regard.
Mr Newton concluded that there are a number of significant concerns regarding your capacity to exercise behavioural control and that such difficulty in controlling your anger is likely to be most intensive in interpersonal relationships and when you are disinhibited by alcohol. It is clear from Mr Newton’s report that anger management and violence prevention must be addressed, as must your alcohol consumption if your rehabilitation is to be achieved so as to enable you to manage conflict in your interpersonal relationships without resort to violence and in that way, ensure that you do not re-offend in a like manner.
Despite your present abstinence, Mr Newton is of the opinion that you are at risk of relapse into heavy drinking, which of itself, would constitute a significant risk factor for further aggressive behaviour when you are released and that you should in the interim and at the earliest possible opportunity, participate in appropriate education and counselling to address your drinking problem. I note in this regard that you have already undertaken a short educational course on alcohol use, but in Mr Newton’s view you will need to undergo a structured intensive treatment program.
Mr Newton also reported that you expressed your sorrow repeatedly and that you wanted your apology conveyed to Mrs Tankir without reservation.
Mr Adem Atishali, who gave evidence on your behalf, also spoke of your sorrow for what happened that night and that after you are released, you want to work, look after your family and “be like a normal person.”
Your counsel, Mr Dunn QC, submitted that these offences arose out of your drunken, irrational behaviour on the night, which you regretted the next day when you spoke to the police from your hospital bed.
The incident was, he submitted, “one off”, and the result of a volatile relationship and that your prospects for rehabilitation auger well, given that you have been employed while on remand, undertaken courses, and have the support of family and friends.
Mr Dunn further submitted that by reasons of your expression and remorse and the fact of surrendering yourself to the authorities, specific deterrence may be given less weight, and that features are absent from this case which would otherwise characterise it as a more serious example of the crime of attempted murder.
Mr Trapnell SC, counsel for the Crown, submitted that this is a serious example of attempted murder, with features which make it more grave than might otherwise be the case. He relied upon the fact that the offences occurred after you broke in to Mrs Tankir’s home, that Mrs Tankir was at home with her three children, and therefore in a vulnerable position, that there was a degree of premeditation, that the offences were committed in breach of the intervention order, and that at the time these offences were committed you had been interviewed, although not charged, in respect of breaching the previous intervention order and assaulting Mrs Tankir. That these offences are to be characterised as a form of domestic violence, and further, that the offence, the subject of Count 1, was committed in the presence of Mrs Tankir’s three children, and indeed, when she was trying to protect them, and that they were at risk of being injured, which risk was realised by the commission of Count 2.
Mr Trapnell also submitted that the offences incurred in circumstances of reckless intoxication, that is, where you knew that you became impulsive and aggressive under the influence of alcohol. Mr Trapnell also relied upon your conversations with the police officer at the hospital, where you sought – he submitted - to cast blame on Mrs Tankir.
Mr Dunn has specifically disavowed any suggestion that you now hold the victim responsible for your actions, and I propose to act upon that basis as it is consistent with your pleas of guilty, and the expressions of sorrow as reported by Mr Newton and Mr Atishali.
The maximum penalty for the crime of attempted murder is 25 years’ imprisonment, and for recklessly causing injury, five years’ imprisonment. Attempted murder is a serious offence. It involves the formation of an intention to kill. In this instance, most of the lacerations suffered by Mrs Tankir were superficial, but two in particular to the chest and abdomen, were reported by Dr Andrew McLeod, the trauma resident at the Royal Melbourne Hospital as having the possibility of causing serious injury, and indeed, the Crown relied only upon the injury to the right lung as being potentially life threatening. Nonetheless, the circumstances of the offending were serious for you stabbed Mrs Tankir nine times while yelling out, “I told you I would kill you”. All this time she was lying on top of her children and she and her boys were screaming.
Although there is no evidence of any enduring or permanent consequences either physically or emotionally to Mrs Tankir and the child, Kevin, or indeed to the other two children present as no victim impact statements were tendered in evidence. It must at the very least have been a terrifying experience for Mrs Tankir and her children and the court may conclude that Mrs Tankir endured pain and suffering consistent with the infliction of the nine stab wounds.
Although the injuries sustained by Mrs Tankir are perhaps not as serious as those inflicted in other cases, and particularly those relied upon by the Crown, your offending is nonetheless, in respect of the attempted murder, a serious example of a serious offence. Not only did these offences occur in the sanctuary of Mrs Tankir’s home but you broke into that home armed with a hammer and although you did not take the knife with you but rather picked it up once inside, you followed Mrs Tankir to the back room armed with the knife. You must have known her children were present, you most certainly would have heard their screams. You knew that an intervention order was in place, you must have known you were in breach of it and you were intoxicated and you knew that when intoxicated, you engaged in impulsive and aggressive behaviour. It is in these circumstances that you stabbed Mrs Tankir repeatedly and injured the child, Kevin, and by reason of your plea and as evidenced by the words uttered by you while stabbing Mrs Tankir, and indeed the weapon used, you intended to kill her.
It is not put that your alcohol or drug ingestion mitigated your offending but rather in the context of a volatile relationship, explains it. However it does appear from what you told Mr Newton that you knew that alcohol led to aggression on your part in the past and indeed, in the past, you have assaulted Mrs Tankir and further, you had also previously breached an intervention order. So although Mr Dunn described your conduct as “one off”, it could not be said to be an aberration on your part.
In the circumstances of this case, it is relevant that these offences occurred in the context of an intimate relationship that was troubled and turbulent, and that when Mrs Tankir had sought a further intervention order, your response was, in an alcohol induced state, to break into her home and to attack her, intending to kill her and all, this despite the presence of her children. Although these offences occurred in the context of a personal relationship, that does not in any way lessen the gravity of your offending, nor is your offending mitigated by the volatile nature of that relationship.
The report of Mr Newton makes it clear that, unless you receive intensive treatment, even allowing for your cultural mores, you are at a significant risk of re-offending particularly in interpersonal relationships.
Your two prior matters also involved offences of violence. On 14 August 2004, you were placed on a good behaviour bond for assaulting a police officer, and on 31 July 2006 you were fined without conviction in respect of unlawful assault and failing to render assistance after an accident.
Although the circumstances of those offences have been explained to the court and your role in each of them has been described as peripheral, and the nature of the offending is to a degree no doubt reflected in the dispositions, nonetheless your prior history suggests that your problem with violence and anger is an established one and not confined to interpersonal relationships.
In sentencing you, I take into account and give you a discount for your pleas of guilty. By such pleas you have facilitated the course of justice and you have saved the community the cost of a trial and the witnesses the ordeal of one. In particular, by reason of your pleas, Mrs Tankir has not been required to give evidence and be subjected to cross-examination, nor has the child Kevin. I take into account also that you pleaded guilty to these charges at the committal. Therefore, I also take into account the time at which those pleas were entered. I take into account also that you are remorseful for your conduct, that such remorse is evidenced, not only by your pleas, but by surrendering yourself to the police and by your acknowledgement of your wrongdoing to Constable Smith at St Vincent's Hospital, and your expressions of remorse and regret as reported by Mr Newton and as evidenced by Mr Atishali. I take into account also your co-operation with the authorities as evidenced by surrendering yourself to the police. I take into account your age, that at the age of 38 you are a person of modest prior criminal history and that you will be serving a sentence of imprisonment for the first time. I take into account also that by reason of your limited English language skills you will be serving your sentence, at least until your proficiency in the language improves, in somewhat difficult circumstances.
In sentencing you, I must have regard to the nature and gravity of the offences here committed. I have already made reference to the salient features of your offending in respect of Count 1, which I regard as serious, and although the injury in respect of Count 2 is described as superficial, that occurred in circumstances which must have been very frightening indeed for a young child. I must also have regard to the need to pass a sentence which will serve to punish you and act in denunciation of your conduct.
Any sentence imposed must also give effect to general deterrence so that like minded persons will know that the community does not tolerate such conduct, especially where it occurs as a consequence of a conflict in a relationship, and that if those persons act as you have, they can expect condign punishment.
The sentence to be imposed must also give due weight to considerations of specific deterrence, which is especially so here because you committed these offences while an intervention order was in place, and when you had previously assaulted Mrs Tankir, and breached an earlier intervention order. This is not to sentence you again in respect of these matters, but rather your previous conduct towards Mrs Tankir suggests that you must be specifically deterred from re-offending.
Likewise, your prospects for rehabilitation must be said to be guarded unless you can effectively engage in anger management and address your alcohol abuse, otherwise you are at a significant and real risk of re-offending - not only in personal relationships but in the community at large.
In sentencing you I also take in to account that while you have been on remand and in custody, you have been serving a sentence of imprisonment in relation to one count of recklessly causing injury to Mrs Tankir, relating to the assault occasioned in July 2007. The Broadmeadows Magistrates’ Court on 30 January 2009 imposed a sentence of four months’ imprisonment, two months of which was suspended for 18 months.
Eighty days pre-sentence detention was taken in to account, and you were never at liberty to serve the balance of the suspended sentence in the community. As they relate to the same victim, and arising out of the same domestic circumstances, I take those matters into account in determining the appropriate sentence to be imposed on the basis of the principles enunciated in Mills case.
In sentencing you, I take into account all matters which go in your favour and accordingly, you are convicted and sentenced as follows: Count 1, attempted murder, ten years’ imprisonment. Count 2, recklessly causing injury, two years' imprisonment.
Although the offences occurred as part of the one episode, they, nonetheless, involve two victims. Accordingly, I propose to order that one year of the sentence imposed in respect of Count 2 be served cumulatively with the sentence imposed in respect of Count 1, that is, 11 years’ imprisonment.
In order to address your prospects for rehabilitation, I order that you serve a non-parole period of eight years. I declare that you have already served by way of pre sentence detention, a period of 174 days and I declare, pursuant to s 6AAA of the Sentencing Act, that but for the pleas of guilty, the total effective period of imprisonment I would have otherwise imposed would have been 14 years with a non-parole period of 11 years.
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