R v Kepenci
[2016] VSC 817
•19 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0057
| THE QUEEN |
| v |
| SIMON KEPENCI |
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JUDGE: | COGHLAN JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September and 14 December 2016 | |
DATE OF JUDGMENT: | 19 December 2016 | |
CASE MAY BE CITED AS: | R v Kepenci | 1st revision: 6 February 2017 – Appearances |
MEDIUM NEUTRAL CITATION: | [2016] VSC 817 | |
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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Killing not premeditated – Limited remorse – Accused refusing treatment for HIV – Reduced life expectancy of six to 12 months from time of plea – Sentencing Act1991 s 6AAA – Sentenced to 15 years imprisonment with non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Judd QC | Office of Public Prosecutions |
| For the Accused | Ms R Sleeth | Victoria Legal Aid |
HIS HONOUR:
Simon Kepenci, on 16 May, before Hollingworth J in this court, you pleaded guilty to the murder of Gordon Harvey.
On 1 September 2016 and 14 December 2016, I heard a plea made on your behalf. On 1 September a copy of your criminal record was filed and it was acknowledged as true by your counsel.
The facts of the case may be stated briefly as follows: At some time between Sunday 17 January 2016 and Tuesday 19 January 2016 you killed Mr Harvey by bashing him about the head with a mash hammer, being a hammer with a wooden handle and a metal head. The murder took place at Mr Harvey’s home in Brunswick Street Fitzroy, which was part of a shop known as Fetish Clothing and Accessories.
You were observed on CCTV video footage arriving at the shop on 17 January 2016. On 19 January 2016 you set fire to the shop and the fire brigade attended and put out the fire. When the building was searched, the body of Mr Harvey was found.
Mr Harvey had been a founding partner of the Brunswick Street business in 1983, with a friend, Craig Baker, but he did not take any part in the business after 1984. He returned to the business to help Mr Baker in late 2013. When Mr Baker died in April 2014, he moved into the premises and took over the running of the business.
Mr Harvey had separated from his wife some time earlier and engaged in physical sexual relationships with other men.
When he was living in Brunswick Street he started accessing some dating websites and through one of those site he met you. The two of you maintained a sexual relationship on a semi‑regular basis up until mid‑2015. In about May 2015, Mr Harvey accused you of stealing his car, which you denied, and the dispute finished up in a physical confrontation. Your spasmodic relationship appears to have recommenced in August 2015 and continued in its haphazard way up until the time of the murder.
After arranging to meet on the online dating website you came to the shop at 9.04pm on 17 January where the CCTV footage shows you being let into the premises by Mr Harvey.
By 18 January 2016 Mr Harvey was not responding to attempts to contact him and he did not use his telephone or other electronic devices.
From 10.07am on 18 January you can be observed removing various items from the shop. One reasonably assumes that Mr Harvey had been murdered by that time.
You returned to the shop at 1.12am on 19 January. You appear to have removed items from the premises. You were again shown at 3.18am leaving the premises with a backpack but returning three minutes later. You were seen to leave the premises finally at 3.41am. At 3.43am smoke and flames could be seen coming from the rear of the premises and at 3.45am emergency services were called.
You left the area in Mr Harvey’s car. It later transpired that you’d stolen a number of items belonging to Mr Harvey.
When the scene was examined it was found that about 75 per cent of the shop was damaged by fire and the balance of the building by heat, water and smoke. The most intense damage was at the rear west of the premises which contained the living area. The fire appeared to have been lit in the south‑west corner of the rear room. The body of the deceased was found in that corner. It was covered by a number of items of clothing and doona covers. Apart from a black T‑shirt the body was naked. A can of lighter fluid was found with the body.
At the post‑mortem Mr Harvey was found to have suffered very severe head injuries, including a fractured skull and a significant brain haemorrhage. There were 24 lacerations to the skull. His feet and shins had been burnt.
When you were interviewed by members of the Homicide Squad on 21 January 2016 and confronted with the details of items found at your flat, you gave a number of answers which demonstrated your attitude to Mr Harvey. They were:
Q 1031:I guess it’s about remorse — you showing remorse and you helping – – – –
A:Help ‘em?
Q 1032:– – – – the family get closure.
A:Fuck him, fuck the family, fuck you.
Q 1033:Yep.
A:Fuck everyone.
…
Q 1044:– – – – because Gordon’s death is one that’s – I would suggest is quite violent and the information we – – – –
A:You saw the blood, and I bloody enjoyed it.
Q 1045:Sorry?
A:Nuh.
Q 1046:He enjoyed it, did you say?
A:No, I did.
Q 1047:You enjoyed it?
A:Not as much as I’d liked.
Q 1048:Gordon had – – – –
A:I would’ve loved to skin him and fuckin’ – and do a lot of shit, mm.
Q 1049:Gordon had 27 – what appears to be 27 blows to the back of his head.
A:Is that all?
Q 1050:Yeah.
A;Damn. O.K.
Q 1051:27 individual lacerations to the back of his head which, we would suggest, were caused by a hammer.
A:O.K.
Q 1052:You seemed surprised when I said 27. Are you disappointed with that?
A:Mm’hm.
Q 1053:Do you wish it was more?
A:Wish I’d have done a lot of other things too.
…
Q 1993:Do you feel a little bit of remorse?
A:That’s the thing, no, nothing.
Q 1994:Are you happy with – that – that – that you did it?
A:I don’t regret it – – – –
Q 1995:Yep.
A:– – – – and that I’ve said I …
Q 1996:Yep. If you had your time over again would you do it again?
A:If I feel like this again, there’s nothing stopping me.
You had entered a plea of guilty at the committal mention on 13 May 2016 and that was accepted by the prosecution as the earliest practical date at which you could have done so, and it is.
You are now 39 years of age. You were born in Melbourne. Your parents had emigrated from Turkey. You told Dr Ria Zergiotis, Consultant Psychiatrist on behalf of Forensicare, that as a child you had been sexually abused by a relative and, in relation to more recent conversations within the prison system, you have said that that was by a cousin and that it continued over the period from the age of 10 to the age of 14. You attribute subsequent sexual confusion in part to that abuse.
You did not thrive at school. Particular difficulties were caused when the family would relocate to Shepparton or Mildura where your parents would be employed in fruit picking. On at least some occasions, I suspect most of them, a term of school would be missed. You left school after Year 10 and worked at a kebab shop for about 12 months. That gave you some training in food preparation and handling.
You were taken back to Turkey when you were aged about 16, where a marriage was arranged for you. You did not have much understanding of what was involved in that at the time. The arranged marriage was to be to your father’s sister’s daughter, your first cousin. Your father had been diagnosed with a terminal illness before the trip to Turkey. You rejected the arranged marriage, which caused major problems with the family, and you were threatened and assaulted by your father’s family.
The family were not able to remain at the father’s village and had to live with the relatives of your mother’s family. Your father died in Turkey. You were blamed for the family’s troubles and you are moved, at least in part, by some regret for your father’s death attributing it in part to your own behaviour — that is unlikely to be true.
You returned to Australia after something less than a year in Turkey. When you returned to Australia you left the family. You could not accept your father’s death. You started a kebab pizza shop in Queensland.
You were in a de facto relationship between 1996 and 2007. Your partner was not accepted by your family and you were not accepted by hers. You regard your long‑term partner as having been a stabilising influence on your life.
You were found to be HIV positive in 2001 and commenced treatment with antiretroviral medication. Your family did not want to accept the diagnosis and preferred to refer to it as cancer and you could not discuss questions of sexuality with your family, largely for cultural reasons.
You have reported being depressed over a long period of time which increased when your long‑term relationship ceased in 2007. That relationship broke down largely because of your depression and anger issues. After the relationship broke down you stopped taking your antiretroviral medication. You returned to Melbourne and lived with your mother for three or four years. You moved into a homeless shelter and then to a Housing Commission flat where you were living at the time of the murder.
You report confusion about your sexual orientation, which commenced in about 2005. You have not had any other significant relationships.
You reported to Dr Zergiotis that:
After breaking up with his long‑term partner he stated he focused on his problems but believes if he got the ‘right help’ things would not have got so far as the current offence of murder. He reported that clinicians he came in contact with in the past would always attribute his difficulties to ‘drugs’ rather than other psychological issues.
I regard those remarks somewhat cynically because I believe there were a number of opportunities for you to seek and receive help.
You attempted suicide or engaged in acts of preparation or threats to commit suicide over a long period of time.
You recommenced antiretroviral treatment in 2011 but stopped intermittently in 2012 and 2013.
In 2013 you were diagnosed with pneumonia consequential upon your HIV. You then came to be treated at the Alfred Hospital and were treated for some time through the specialist HIV unit at the Alfred. You recommenced your treatment but gave it up at the end of 2014 and have not recommenced it, although in some of the material it is likely that you may have been on some medication up until about September 2015 but certainly not since then.
You have had ample advice and know that if you recommence treatment there would be at least some prospect, as you put it to Dr Zergiotis, of getting back to health. You have expressed a firm resolve not to do so and are aware of the prospects of severe pain and dementia. You are accepting antibiotics to make your condition more comfortable.
You have a long history of depression which has occasioned a number of admissions and other contacts with the mental health service. You have had many admissions and diagnosed many different medications. In recent times you have chosen to self-medicate by taking illicit substances and at the time of the offence you were taking methylamphetamine and ice on a regular basis. Whilst in prison you have been seeing a psychiatrist and you report that you have found that helpful.
You have a significant history of poly‑substance abuse dating from about age 14 and 15. You were introduced to alcohol at age 16 but have not had any particular problems with alcohol. You have had counselling at Caraniche and have attended Odyssey House briefly as an inpatient.
On the plea, from which I received a report from Dr Zergiotis dated 17 October 2016, for which I had called. Dr Zergiotis, under heading of ‘Opinions and Recommendations’ says:
On cross sectional examination, Mr Kepenci expressed ‘emotional sadness’ with intensely felt developmental struggles involving invalidation and perceived dominance and rejection by his family, aggravated by the impact of his experience of childhood sexual abuse and his social isolation over the years with coming to terms with his bisexuality. He did not present with features suggestive of a major depressive illness or a major anxiety disorder. Mr Kepenci’s cognition was not formally tested but there was no indication of any mild or major neurocognitive disorder due to HIV infection.
Mr Kepenci has been ambivalent about active HIV treatment since his diagnosis, and has ceased treatment on several occasions in the past. He is currently refusing his HIV treatment as part of a passive suicide plan, and as a means of regaining subjective control of his life and as retribution against his family, who he views as failing to have supported him in his time of need. He has been assessed as having capacity to refuse treatment for HIV, according to the available documents.
Mr Kepenci should ideally be engaged with clinicians to monitor his mental health, given there is a considerable overlap between HIV infection and several major mental disorders such as major depressive disorder, and to screen for the emergence of any psychiatric illness as his HIV illness progresses. He has access to prison mental health services at the MRC for psychiatric and psychological interventions. He also has access to appropriate medical services at MRC and is aware that he can change his mind at any time and resume active treatment for his HIV illness.
The question of your underlying depression might, in different circumstances, have been a more important feature in the sentencing process were it not for the matters set out above.
What is absent from the psychiatric report is any suggestion that your suffering from HIV might have contributed to your offending. Such material that is available seems to say exactly the opposite.
I am satisfied that you decided to kill Mr Harvey out of some sort of sense of hate or revenge, and probably some sense that your conduct was without consequences, and that you regarded your position as hopeless. The killing was brutal and callous but I accept that it was unpremeditated.
It was urged to me on the plea that I should not find that you set fire to the shop to destroy or damage Mr Harvey’s body. I am satisfied that you did in part have that motive, together with your desire to cover your tracks.
The vitriol in your record of interview towards your victim is something rarely seen in this court. It appears now in Dr Zergiotis’s report that you have resiled from that position and that you now do show some remorse, particularly towards Mr Harvey’s family. It is probably of little consolation to them but it is better that it is so.
I am satisfied beyond reasonable doubt that you did set fire to the shop to cover your tracks and to burn the body. It is therefore a more serious case of murder.
I have already observed that the murder was brutal and callous. It was also pointless.
I accept to some degree that the murder did have much to do with you and your personality but that is no consolation to Mr Harvey’s family. He was the victim, largely, in an opportunistic way. He was simply the person who happened to be there.
I heard on the plea from Mr Harvey’s son by way of reading his victim impact statement. His mother did not make a statement because she could not deal with the ordeal of it. I accept that the distress of the family is very great and that Mr Harvey will be very greatly missed by them and others. I suspect the sentence I am going to impose will be of little consolation to them.
You have a number of prior convictions. They are not particularly relevant to the sentence. You have asserted that your mental health has been overlooked by the medical profession. I reject that. It is unfortunate, but I do conclude you have just not taken the opportunities which have been offered to you. I say that because a number of your prior convictions were connected, and it was said in a shorthand sort of way, related to attempts to suicide. Several of your prior convictions relate to the possession of firearms. I think they were connected to your attempted suicides in the sense that you threatened to use those firearms to commit suicide. So that was the focus in which you came into the system and the focus in relation to which at least on occasions you were given community corrections orders.
The problem, however, is that your personality traits, your depression, your poly‑substance abuse and your suffering from AIDS, have made you a very difficult person to deal with in the mental health system.
The most important feature of the case though, from your point of view, is that you are suffering from AIDS and you have chosen not to accept treatment.
I received a medical report dated 17 November from Associate Professor Catherine Cherry, infectious diseases physician from Alfred Health, and an addendum to that report dated 13 December 2016.
Associate Professor Cherry said this about your life expectancy:
Life expectancy without effective HIV therapy following an episode of HIV associated PJP —
And I interrupt the quotation to say that your admission to the Alfred Hospital in 2011 was for an event involving PJP, a particular pneumonia that HIV sufferers commonly contract —
is typically less than two years. Mr Kepenci has already lived over 3 years in this context but his survival to this point is likely due in part to the fact that he did take HIV therapy for a few months in early 2013. Given his persistent decision to refuse HIV treatment since that time and his current CD4 T cell count (a marker of immune function in the setting of HIV) of <50 cells/uL (normally >400), I would consider him highly likely to die within the next 6–12 months from AIDS. It is possible he may die much more quickly, a sudden, severe illness could occur at any time. I would consider it much less likely that he will survive beyond 6–12 months without HIV treatment.
It follows that six to 12 months is your life expectancy. There is the possibility that you might die earlier from some other cause related to your compromised immune system.
In one sense your case seems to me to be unique, not just because you made the choice to die but also because you could change your mind and resume medication. It is not certain from the material provided from Associate Professor Cherry that your resuming medication would necessarily be efficacious but I accept that as matters stand today your resolve to refuse medication is firm. It is likely that you have been un-medicated since December 2014, although on one view of the material that is September 2015. The present prognosis is based on that later date.
You did plead guilty at the earliest possible date. If you had not so decided I do not doubt that you could have kept these proceedings at bay and never been dealt with. You have chosen at least to make a public acknowledgement of what you have done.
I am obliged to have regard to just punishment, general and specific deterrence and protection of the community. Because of your significantly reduced life expectancy, specific deterrence, protection of the community and rehabilitation have a lesser role to play than they otherwise would. Reduced life expectancy is not a reason to impose otherwise than an appropriate sentence. It is nonetheless an important feature to be taken into account, particularly with someone with such a substantially reduced life expectancy as you.
It follows from the material provided by Associate Professor Cherry that your time in prison will be very difficult, including the management of your palliative care. It is predicted that your death will be painful and protracted. It may be accompanied by dementia and other matters.
You will be sentenced to be imprisoned for 15 years with a non‑parole period of 10 years. Had you not pleaded guilty at the earliest opportunity I would have sentenced you to be imprisoned for 19 years with a non‑parole period of 14 years and I make that statement pursuant to s 6AAA of the Sentencing Act1991.
In saying that, it should be noted that if you were not suffering from a terminal illness and had such a short life expectancy, I would, for the reasons set out above, have sentenced you to a much higher sentence than that which I have imposed and it is in those circumstances, also, that I have fixed the non‑parole period of 10 years, which is significantly lower than a non‑parole period I would have otherwise fixed.
I declare that you have served 333 days by way of pre‑sentence detention. I direct that the s 6AAA statement and the declaration as to pre‑sentence detention be entered in the records of the court.
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