R v Karatas

[1999] NSWCCA 151

CITATION:

R v KARATAS [1999] NSWCCA 151

FILE NUMBER(S):

CCA 60014/98

HEARING DATE(S):

28 May 1999

JUDGMENT DATE:

28 May 1999

PARTIES :

Regina
(Crown)

v

Murat KARATAS
(Applicant)

JUDGMENT OF:

Barr J at 1; McInerney AJ at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0145
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

COUNSEL:	PG Berman (Crown) PD Rosser QC (Applicant)
SOLICITORS:	CK Smith (Crown) Ian D Graham & Associates (Applicant)
CATCHWORDS:	Criminal Law - sentencing - whether sentence excessive
DECISION:	Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60014/98

BARR J
McINERNEY AJ

Friday, 28 May 1999

REGINA v Murat KARATAS

JUDGMENT

1   BARR J: Murat Karatas seeks leave to appeal against sentences imposed upon him in the District Court. On 7 November 1997 a jury convicted him of four counts of sexual intercourse without consent. On 16 December 1997 Sides DCJ QC sentenced the applicant on two counts to concurrent terms, each of nine years’ imprisonment, comprising a minimum term of six years and nine months and an additional term of two years and three months. On the two remaining counts, his Honour sentenced the applicant to two concurrent fixed terms each of six years, commencing at the same time as the minimum terms on the other counts. The total effective sentence was therefore imprisonment for nine years with a minimum term before eligibility for parole of six years and nine months.

2   The applicant originally appealed against his conviction as well but abandoned that appeal by a notice filed on 18 January 1999.

3   The complainant was a twenty-four year old woman who had come from Hong Kong to Australia to study. She was at Wollongong University in 1996. She occupied her own flat and purchased a small refrigerator from a business in Wollongong. She had occasion to return it because it was faulty and the vendor repaired it and returned it to her. The applicant was one of the vendor’s men who redelivered it.

4   The refrigerator still gave trouble however and the complainant and the vendor agreed that the vendor would buy it back. The complainant therefore expected somebody to call and collect the refrigerator.

5   The applicant knew this and he knocked on her door at 7.40am one Sunday, waking her up. He asked about the refrigerator and the complainant let him in, believing that he had come to collect it. He pretended to examine the refrigerator and then asked whether he could use the lavatory. He was permitted to do so. When he came out, he attacked the complainant without warning. He slapped her face and broke her glasses. He grabbed her by the hair and pushed her onto the bed. The complainant shouted for help but the applicant warned her that if she were not quiet, he would kill her. The complainant believed him and let him do what he wanted.

6   The applicant is a big man, about six feet two tall. The complainant is reported to have been a little over five feet tall.

7   Over the next three hours, the applicant engaged in numerous acts of intercourse with the complainant, including cunnilingus, digital penetration of the vagina, fellatio and penile penetration of the anus. They were the acts giving rise to the four counts of which the applicant was convicted.

8   During the attack the applicant had difficulty in entering the complainant’s anus and vagina, so he tried to further his purposes by use of saliva and a banana which he had taken to the premises for the purpose.

9   During the attack, the complainant caught sight of a rope which the applicant had in a bag that he was carrying and that was an additional cause of fear for her.

10   His Honour regarded those as aggravating features.

11   When the applicant was leaving the premises he made the complainant give him her telephone number and she did so, acting under the fear previously instilled in her by the threat and the sight of the rope and no doubt by the disgraceful acts which had taken place during the attack.

12   Not long after he left the premises, the applicant did telephone the complainant at her premises.

13   The complainant was very badly affected by the attack. She had been a virgin beforehand but had apparently normal sexual interests. She found herself unable to remain in Wollongong. She suffered long term loss of appetite and nightmares. Being of Chinese origin, she experienced great personal shame, even though she was blameless. One result was that she could not even consider any relationships with men and stopped dating them.

14   The applicant submitted on appeal that the sentences were in all the circumstances manifestly excessive. It was pointed out that the maximum penalty for each count was only fourteen years and that all the offences had been committed during the one period of criminal activity. Given their obvious qualification for concurrency, it was submitted that the total sentence came too close to the available maximum.

15   Then it was submitted that his Honour made errors of reasoning. During his Honour’s remarks on sentence, he said this:

The complainant’s will was overcome by violence and a threat. The force used was not sufficient to leave any evidence of physical injury. This seems to have been calculated on the part of the prisoner who sought not to leave any evidence that might be interpreted as being inconsistent with his assertion that the complainant consented. For example, he was careful not to rupture the hymen, ...

16   It was put that his Honour had regarded as an aggravating feature what was really a mitigating feature, namely deliberate conduct on the part of the applicant resulting in less injury to the complainant. The Court was informed, with the consent of the Crown, that at the trial there was evidence that the applicant, upon realising that the complainant was a virgin, left off his unsuccessful attempts at entry of her vagina and transferred his attention to her anus. That was apparently a matter he regarded as appropriate and likely to be of less concern to his victim.

17   Those circumstances were put against the remark that his Honour later made to the effect that there was no mitigating feature of the crime. It was put that that finding could not stand.

18   It seems to me that the circumstances in which the applicant ceased his attempts at entry of the vagina and transferred his attention elsewhere has to be seen for these purposes in the light of the totality of the attack. This was an attack which lasted for three hours. The applicant attempted to have intercourse in every way known to the courts. As his Honour observed, the very length of the attack was an aggravating feature because in effect the complainant was detained against her will.

19   Furthermore, notwithstanding the circumstances pointed to by the applicant, the fact of the matter was that the complainant, as his Honour accepted, no longer regarded herself as a virgin and had abandoned any thought of relations with men. It is not overstating the position I think to observe that any opportunity the complainant had for a fulfilled sexual life has been lost.

20   It seems to me in all the circumstances that his Honour was entitled to take the view that there was no mitigating feature.

21   Secondly, it was put that his Honour erred in treating the manner in which the applicant gained entry, described as a technical break-in, as a circumstance of aggravation.

22   In his careful and detailed remarks on sentence, his Honour identified a number of aggravating features including that the attack on the complainant was made in her home, that the effect of it was to detain her against her will for three hours, that the applicant gained entry by the trick of pretending to have called to collect the refrigerator and that the attack was calculated as evidenced by the fact that the applicant walked five kilometres to the complainant’s premises carrying a bag containing a rope and a banana and that he took care not to leave marks on the complainant’s body. It was in that context that his Honour made the remarks complained of.

23   Although it is correct to say that the case would have been worse if the applicant had inflicted serious bodily harm on the complaint, it was legitimate in my opinion for his Honour to look at all the aspects of the applicant’s preparation and treatment of the complainant as demonstrating a coldly calculated act rather than a hot-blooded attack as is often the case, even in a bad rape.

24   In my opinion, his Honour was entitled to regard these features collectively as very serious among their kind and his Honour’s expressed desire to fix sentences towards the top of the range was justified.

25   The applicant’s subjective features did not favour him. He had a bad record of offences of violence and dishonesty and his rehabilitation prospects were not good. There was no contrition and he was still denying lack of consent at the time of sentence.

26   The Court has had regard to the statistics published by the Judicial Commission. The longest full term for multiple counts of sexual intercourse without consent is ten years and the longest minimum term seven years. The statistics comprise only twenty-six cases, which is not a large number statistically speaking, and as the Court has observed before, the use of statistics is to be encouraged but they need to be treated with caution. They do not, in this case at least, delineate the top of the available sentencing range. A proper penalty for an offence of the worst kind is the one prescribed by statute, namely fourteen years. His Honour did not find this to be a case that fell into the worst category of cases but it had many of the features of such a case.

27   In my opinion the sentences imposed were within the proper range of his Honour’s sentencing discretion and I would grant leave to appeal but would dismiss the appeal.

28   McINERNEY AJ: I agree.

29   BARR J: The orders of the Court therefore are as I have proposed.

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