R v Nurdag
[2011] VSC 254
•8 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
No. 0133 of 2010
0130 of 2010
0131 of 2010
0132 of 2010
| THE QUEEN |
| v |
| MEHMET NURDAG JAYDEN PALL BISHOP MATTHEW GROTHEER DAVID SAM PUGLIA |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 13 and 14 April 2011 (Bishop, Grotheer, Puglia) and 17 May 2011 (Nurdag) | |
DATE OF SENTENCE: | 8 June 2011 | |
CASE MAY BE CITED AS: | R v Nurdag & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 254 | |
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CATCHWORDS: Mehmet Nurdag – Guilty plea to manslaughter, trafficking and firearm charges and summary charge – Deceased involved in drug deal with two co-accused and owed money – Prisoner took loaded firearm to deceased’s home to pressure him in relation to money owed – Confrontation ensued and deceased was shot - Trafficking and firearm charges unrelated to manslaughter – Prior convictions – Genuine remorse - TES: Eleven years’ imprisonment with a non-parole period of eight and a half years.
Jayden Pall Bishop – Guilty plea to assist an offender – Assisted Mehmet Nurdag to flee the scene of the shooting – Youthfulness – Good prospects of rehabilitation – No prior convictions – Remorseful - TES: 2 years’ imprisonment partially suspended.
Matthew Grotheer – Guilty plea to assist an offender – Assisted Mehmet Nurdag to flee the scene of the shooting - Modest criminal history – Not involved in the drug deal – Remorseful – TES: 2 years’ imprisonment partially suspended.
David Sam Puglia – Guilty plea to assist an offender - Assisted Mehmet Nurdag to flee the scene of the shooting – No prior convictions – Suffering from ill-health – Shot by the deceased – Remorseful – TES: 2 years’ imprisonment partially suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Office of Public Prosecutions |
| For Mehmet Nurdag | Mr D Hallowes | Haines & Polites |
| For Jayden Pall Bishop | Mr M O’Connell SC | Galbally & O’Bryan |
| For Matthew Grotheer | Mr T Danos | Michael Gleeson and Associates |
| For David Sam Puglia | Mr N Papas SC | Wightons Lawyers |
HER HONOUR:
Mehmet Nurdag, you have pleaded guilty to one count of manslaughter. Jayden Pall Bishop, Matthew Grotheer and David Sam Puglia, you have each pleaded guilty to one count of assisting an offender.
The deceased, Brock Nightingale, was 26 years old. He lived at 84 Cloverdale Drive, Corio. On Wednesday 21 October 2009, a drug deal had been arranged which was to involve the deceased and at least you, Bishop, and you, Puglia, purchasing an estimated $40,000 worth of ecstasy pills from an unknown supplier in Melbourne. Mr Nightingale planned to steal the cash by pretending that there was a raid during the drug deal. At 6.30pm on that day, Mr Nightingale was seen to cut magazines into the size of notes and prepare bundles using $100 notes on the outside of each bundle so it would appear to be a wad of cash. He then placed these bundles into cloth bags and cut holes in the bags so the bundles could be partially seen.
Later that evening, you, Bishop, and you, Puglia, drove to Mr Nightingale’s house, where you planned how the drug deal was to occur and gave Mr Nightingale an estimated $40,000 for the purchase of drugs. At about 10.00pm you, Bishop, and you, Puglia, drove together to Melbourne. Brock Nightingale also drove to Melbourne in a car borrowed from his girlfriend. The three of you met somewhere in Melbourne and Mr Nightingale staged a drug deal, but claimed he had to flee from it because it was being raided and he lost the money and the drugs. You all then returned to Geelong, and Mr Nightingale kept the $40,000 cash.
On the Thursday morning, at about 3.00am, a drive-by shooting took place at Nightingale’s house. Six shots were fired into the deceased’s house, hitting the front door, and it appears that a .22 calibre firearm was used in the drive-by shooting. The Crown are not able to prove who was responsible for these actions, but it appears, by reason of its timing, that it was closely connected with the aborted drug deal. Mr Nightingale’s anxieties were such that on the following day, Friday 23 October 2009, he arranged for a security consultant to attend his premises to obtain a quote to install a security system. Mr Nightingale told him that he thought someone was trying to steal his Holden Commodore and he also showed the consultant a bullet hole in the garage door and a projectile he had located. The quote failed to arrive as had been agreed, and, accordingly, the security consultant made an appointment to see Mr Nightingale the following day.
Later that evening, you, Bishop, and you, Puglia, and another male, went to Mr Nightingale’s house in an attempt to get the money back. Mr Nightingale agreed to give you, Bishop, his speedboat as part payment, and so later that night, you, Bishop, and a friend, Anthony Tancredi, went to Mr Nightingale’s house with a tray truck and commenced to tow the boat out of the yard. After some mechanical difficulties with the towing, the boat was eventually towed and stored at Tancredi’s house.
The following day, Saturday 24 October 2009, as arranged, the security consultant attended Mr Nightingale’s house. Mr Nightingale paid a deposit of $5,000 in respect of a video surveillance and alarm system, and he also showed the consultant two more bullet holes in the front window shutter and the power meter near the front door. Another flattened projectile was found lodged in the brickwork between the house numbers. At about 4.00pm, Mr Nightingale drove one of his Holden motor vehicles to the Storage King in North Geelong, where he parked it in a storage unit, and he was then driven home, arriving at about 4.30.
Also, at about 1.00pm that day, you, Jayden Bishop, together with your girlfriend, went to Mr Puglia’s house in Newtown. About an hour later, you, Bishop, and you, Puglia, left in your silver Holden Monaro and drove to Mr Grotheer’s house in Highton. You went inside for a short time before all three of you left in the Monaro and drove to Mr Nurdag’s house in Bell Post Hill. You all went into Nurdag’s garage, where the Crown contend that you discussed what to do about getting your money from Mr Nightingale, and the four of you then planned to go to his house in order to speak to him about the money he owed.
At 5.30pm, all of you travelled in the silver Monaro to Mr Nightingale’s house at 84 Cloverdale Drive, Corio, and pulled up in the driveway. You, Puglia, were the driver. You all exited the car and approached the front of the house. You, Nurdag, had a loaded .22 calibre firearm with you. It was not full length, and has variously been described as being from pistol size to about two feet in length. It has never been located. Mr Nightingale was home alone. He opened the front door as the demand for money was made. A confrontation then occurred where Mr Nightingale came outside and into the front yard, and this continued with Mr Nightingale walking towards you, Nurdag, which forced you to move outside the front gate onto Cloverdale Drive. It is not clear where you, Bishop, Puglia, or Grotheer were at this stage. Nor is it clear at what stage the gun was produced by you, Nurdag, but it was, and the deceased was shot in the left groin waist area with a .22 calibre firearm. You also jammed the firearm during reloading and a live .22 calibre bullet fell on the nearby footpath.
Blood splatter indicates that Mr Nightingale, at this stage, was on the footpath, and it must have been clear to the others at this time that you, Nurdag, had with you a firearm and that it had been discharged.
Mr Nightingale was bleeding from his groin; he walked back inside his front yard. The Crown contend that at this point, he went back into his house and grabbed a .22 calibre sawn-off double barrel shotgun from the loungeroom, which was loaded with a single, solid projectile cartridge. Had the deceased had that firearm with him at the time when he was standing on the footpath, he would have been in a position to return fire towards you, Mr Nurdag. As he did not, the Crown contend that he retrieved the shotgun from his house and the deceased came back into his front yard, somewhere near the porch area. By this time, you, Grotheer, and you, Bishop, were attempting to get away by climbing into the rear of the Monaro. Mr Nightingale aimed the shotgun at the Monaro and fired one shot. The projectile entered through the left rear quarter panel of the car and exited via the right rear panel behind the driver’s seat and hit you, Puglia, standing outside the car, near the driver’s door.
The projectile entered your left thigh and exited your buttock area, where it continued through the side wooden fence and stopped at the front yard of the next door neighbour’s house. You, Puglia, then climbed into the driver’s seat, reversed the car out of the driveway and drove west along Cloverdale Drive, stopping a few houses down and picking up Nurdag, who was in the street and carrying the .22 calibre firearm. You, Nurdag, then got in the front passenger seat of the Monaro and the car drove away.
Mr Nightingale, who had staggered back to his front door, yelled out, “You’re a gutless dog”, before staggering inside the house, where he collapsed on the floor of the loungeroom.
Various neighbours had witnessed and heard the incident, and approached Mr Nightingale’s house, calling out to him in an attempt to assist him, but they did not go inside, as they believed that there may have been dogs present. Intergraph communications also received several “000” calls. Eventually, the neighbours did go into the house and found Mr Nightingale lying on the floor of the loungeroom. He was conscious, and they attempted to treat him. Police and ambulance subsequently attended, but Mr Nightingale died at his home.
After driving away from Mr Nightingale’s house in the Monaro, the four of you drove to an unknown residential location where you, Grotheer, and you, Nurdag, exited the car. You, Puglia, were bleeding severely at this stage, and Bishop removed his top and used it to treat your injuries. Mr Bishop then drove the Monaro to an associate, Paul Zera’s house, in Bell Park and you, Bishop, together with Zera and Santo Tripodi, who was also present, helped Mr Puglia out of the passenger seat of the Monaro and into David Spehar’s Audi coupe. Mr Spehar then drove his Audi, containing you, Bishop, and you, Puglia, and Mr Tripodi to the Geelong Hospital emergency department, where they dropped you, Puglia, off and immediately drove away. You, Puglia, then staggered into the emergency department and told medical staff that you had been shot while walking in Pakington Street, which was clearly a lie. You were admitted and treated for a gunshot injury, having suffered an entry wound to your left thigh and an exit wound in the buttock area and further injuries caused by shrapnel.
You, Bishop, together with Spehar and Tripodi, then drove back to Zera’s house in Bell Park. By the time you got there, the Monaro had been moved to a nearby street and was then moved again. Ultimately, you, Bishop, together with Tripodi and Spehar, then moved the Monaro to Tancredi’s house in Belmont, and this conduct is alleged to be part of the assisting offender charge in relation to you, Bishop. The bullet hole was then patched up, and subsequently, the Monaro was abandoned in the car-park of the Gateway Sanctuary Reserve in Leopold.
A post-mortem was conducted by forensic pathologist, Dr Melissa Baker, on Sunday 25 October 2009. Dr Baker determined that the cause of death was found to be a loss of blood from a gunshot injury.
Numerous witnesses and neighbours heard between one and several muffled shots before a short period of silence and then a distinctly loud bang as the final shot. Investigations revealed the presence of a 12 gauge sawn-off double barrel shotgun located beside the deceased’s body. A ballistic examination showed that only one barrel was fired from the shotgun and only one spent cartridge was located in the gun. There was no other spent 12 gauge cartridges at the scene. Mehmet Nurdag, your DNA profile was found to match a partial profile found on an unfired bullet at the scene.
On Monday 26 October 2009, the Monaro was located at Leopold and, the following day, investigators attended at the home of David Spehar and seized the Audi coupe. On the next day, investigators attended at Anthony Tancredi’s home and seized the boat which had previously been given over by Mr Nightingale.
You, Jayden Bishop, were arrested on Wednesday 28 October 2009, when you attended at the Geelong Police Station. You were interviewed by the police and participated in a video re-enactment at Mr Nightingale’s home. You admitted going to the Nightingale house in the Monaro, and you said all four of you got out of the car and walked to the door, and Grotheer knocked and Mr Nightingale opened the door, carrying a small shotgun, at which point you said you ran and dived behind the Monaro, you heard a gun go off, but did not know where or who was shooting. You then say you saw Mr Nightingale at the back of the Monaro, so you got into that car with Grotheer and, as you looked up, you could see Mr Nightingale pointing the gun through the window at you, so you ducked as he fired. You told the police that you dragged Puglia into the car and then started the car and took off down the road, where you picked up Nurdag and drove away, and that you dropped Grotheer and Nurdag at a house somewhere in Herne Hill. You told the police that after you dropped Puglia off at the emergency department of the Geelong Hospital, you eventually drove to see your father, Steven Bishop, who was staying at a friend’s property at Batesford, and then together you drove to your parents’ house in Port Macquarie. You told the police you did not know how the deceased was shot because you did not have a gun and you did not see anyone else that you were with have a gun. You told the police that you had gone to Mr Nightingale’s house on the Wednesday before the shooting and that you gave him the $9,000 to $10,000 to buy the ecstasy pills and that you drove to Melbourne to buy them, but that Mr Nightingale came back without the money, saying it was missing, and this was the money that the deceased owed.
You, Matthew Grotheer, were arrested by the police on 28 October 2009. You were subsequently interviewed and also took part in a video re-enactment at the deceased’s home. You told the police that you had been asleep at home on the afternoon of Saturday 24 October when Puglia, Bishop and a man you had never met came to your house. They told you a drug deal had gone wrong with the deceased and they asked you to go with them to help collect the money. You went with them to speak to the deceased and get the money. You drove there in Puglia’s car, pulled up in the driveway and then you said that you went to the front door while the other three stayed in the car. You knocked, Nightingale answered the door, you asked about the money owed and you said the deceased opened the front door holding a sawn-off shotgun and took a shot at you or just past you towards the others, and that someone fired a shot from behind you and the deceased went back inside, closed the door, someone then fired another shot from behind you, and you ran back to the car and got in with Bishop and Puglia, and that while getting in the car, Mr Nightingale came out carrying a sawn-off shotgun. He had blood on him and he pointed the gun through the back window and fired another shot at you. You told the police that Puglia then drove the car out of the driveway and down the street, where you picked up the male and then drove away, and that you got dropped off at Bell Post Hill and told Puglia to go to hospital because he had been shot and the others drove away. You told the police that you did not know who fired any shots, other than the deceased, and that you never saw anyone else with a gun other than the deceased. You later told the police that you remembered the unknown male was called Nick and gave a description of him. The Crown contend that the statement that the only gun present was the one that Nightingale had was a lie, although I note your answer to the police that someone fired a shot behind you, suggesting the presence of another gun. Nonetheless, the gun that Mr Nurdag had with him must have at least been visible to you at the time you picked him up. The Crown also contend that you had lied about the number of times Mr Nightingale discharged his firearm.
You were examined by a forensic medical doctor. You had numerous lacerations on your left shoulder and back area, which were a result of shrapnel and broken glass as a result of the projectile being fired by Mr Nightingale at the car.
In respect of you, David Puglia, you were placed under police guard at the Geelong Hospital on Saturday 24 October while you were being treated. On Sunday 8 November, you were discharged from hospital and conveyed to the Geelong Police Station, where you were subsequently interviewed. You told the police that you loaned Bishop $10,000 cash and you did not know why he wanted it and that, on the Friday before, you had been at Bishop’s house and Bishop told you that he had been given a boat by Nightingale for part payment of the money owed. You also told the police that you went with Mr Bishop to Matthew Grotheer’s house, where you asked Mr Grotheer to help you because you found the deceased intimidating, and while driving, Mr Grotheer told you to go to the house of a man he only knew as Dagamal, which is the nickname used by you, Mehmet Nurdag. You told the police that you went to Dagamal’s house and picked him up, and the four of you drove to Nightingale’s house and pulled up in his driveway, and that Grotheer went to the front door and spoke to the deceased about the money owed. You also told the police that Dagamal approached the house and was banging on the security shutter, yelling for the deceased to come out and that you heard a shot fired from the deceased’s front door and saw Grotheer take cover, and Grotheer, Bishop and you then ran to the car and tried to take cover while Dagamal ran down the street. You then told the police that Mr Nightingale came out of his house with a gun pointed past you down the street and was firing another shot, and then he walked over to the Monaro and pointed the gun in the back window and fired another shot, which hit you. You then drove the Monaro out of the driveway, down the street, where you picked up Dagamal and drove to Dagamal’s house and dropped him off.
You also told the police you did not know what Bishop wanted the $10,000 for, but you went with him to Nightingale’s house to get his money back, and that you did not know how the deceased was shot, because you never saw anyone with a gun other than the deceased, which the Crown contend is a lie.
You, Mehmet Nurdag, were arrested on 2 May 2010. You denied any involvement in the shooting and answered no comment in your record of interview, which is, of course, your right. You were initially charged with murder, but the Crown have accepted your plea to manslaughter on the basis that you took a loaded firearm to Mr Nightingale’s house to threaten and pressure him in relation to the money owed to at least Bishop and Puglia. There was no evidence that you provided any of that money, and it was in the course of this confrontation that you shot Brock Nightingale. The Crown accepted the plea on the basis that in taking with you and producing a loaded firearm at the confrontation, you committed an unlawful and dangerous act in circumstances where a reasonable person would appreciate the risk of serious injury and, as a result, you have committed the crime of manslaughter.
The Crown case is that all four of you met at Nurdag’s place in relation to the drug debt before travelling together to Nightingale’s house. You, Mr Nurdag, were in possession of a loaded firearm, but it is not clear, and the Crown is unable to prove beyond reasonable doubt, that the others knew that you had a loaded firearm with you. You, Mr Nurdag, discharged the firearm, hitting the deceased in the groin, and the deceased has then discharged his firearm, and then you, Bishop, Grotheer and Puglia, have then assisted Nurdag in getting away from the scene and then variously tried to cover up your involvement, in Puglia’s case, by telling lies about where you were shot, and in your case Mr Bishop, by arranging for Mr Tancredi to hide the Monaro.
The maximum penalty for the crime of manslaughter is 20 years’ imprisonment. The maximum penalty for assisting an offender in these circumstances is five years’ imprisonment.
Brock Nightingale was 26 years old when he was killed. He was the father of a daughter, Aisha, aged seven. He was born in Melbourne, but was raised by his maternal great-grandparents in Geelong, and they were financially supported in that task by his grandfather. His parents were 16 and 17 when he was born and, because of their youth and immaturity, they were unable to care for him. But his father, Vernon Miller, remained in close contact with his son, particularly once he had met his wife, Melinda, when Brock was aged nine, and Brock would stay with them on holidays and weekends. Mr Miller was again separated from his son in 1999, only to be reunited in 2007, when it was said that they rekindled a strong relationship.
Victim Impact Statements made by Kenneth Nightingale, the deceased’s maternal grandfather, Maria Nightingale, the deceased’s maternal step-grandmother, Lisa and Nicole Nightingale, aunts of the deceased, Vernon Miller, Mr Nightingale’s father, Melinda Miller, the deceased’s stepmother, Lauris Dunn, the deceased’s paternal grandmother and Denise Skinner, the deceased’s paternal step-grandmother, were tendered in evidence by the Crown. Statements of Mason Miller and Erica Miller, Brock Nightingale’s half-brother and half-sister, were also read to the Court. Each of the Victim Impact Statements speak of the grief, anguish and pain that family members have suffered, and no sentence this Court can impose can restore to them their loved one.
Jayden Bishop, you are 22 years old, no prior convictions are alleged against you, although you do have an outstanding matter for burglary and theft, alleged to have occurred when you were 17. You were 20 at the time of this offence. In fact, your 21st birthday was the following day, 25 October. Indeed, on the weekend before the shooting, you had celebrated your 21st birthday with a party in Geelong, and that party had been attended by Brock Nightingale. You have been in a de facto relationship for the past four years and you are the father of a baby boy. You and your girlfriend have more recently been living with your parents in Port Macquarie, New South Wales, and you have previously worked as a concreter. Your mother, Linda Bishop, gave evidence on your behalf. She recounted your arriving at Port Macquarie unexpectedly on the Sunday afternoon, that you were upset but uncommunicative, and that after confronting you with the news that the Homicide Squad wished to speak with you, you told her, without saying more, that you needed to return to Geelong. It was in this way that you presented yourself at the Geelong Police Station on 28 October 2009, having first spoken to a solicitor.
Your mother gave evidence of your early life; your schooling at the local Catholic Primary School at Geelong, your diagnosis at the age of five with ADD (as it was then called), your secondary education at Kardinia College, the twelve months spent as an apprentice mechanic with Toyota and your relationship with your girlfriend, Sarah Harper. You are said to be close to your younger sister, who is autistic and suffers intellectual disability. You come from a law abiding family who operated businesses in the hospitality industry in Geelong. Your parents moved to New South Wales and you remained here in Geelong, working as a concreter and living with your girlfriend. It was at this time, your mother said, that without the support of your parents and extended family, you became involved in the drug culture.
When you were taken into custody, you were initially held for seven days in the cells in Geelong. Your parents visited every day, and when you were moved to the Melbourne Remand Centre, they would fly down from Port Macquarie twice a month. Your mother described you as struggling to cope with the prison environment. You were released on bail on 11 August 2010, shortly after the birth of your son. Your mother describes your life as now more settled with the responsibilities of fatherhood, and it is anticipated that you would continue to live in Port Macquarie and find employment there.
A report by psychologist, John Nolan, dated 12 April 2011, was tendered in evidence as Exhibit “B1”. Mr Nolan recounts your personal history and antecedents, which I accept. Mr Nolan describes you as of average intelligence, friendly and extroverted. You are, in his opinion, easily led, but you have the benefit of supportive relationships. You have demonstrated clear insight into your offending behaviour and you have indicated profound remorse and have expressed sympathy for the deceased and his family. It appears that you have come to an understanding that involvement in the drug culture will always be fraught with risk to yourself and your family, and you emphasised to Mr Nolan that you are deeply sorry.
Various testimonials were also tendered on your behalf as Exhibit “B2”. You are described therein as displaying great maturity, committed to your work and family, polite, respectful and deeply remorseful for your conduct.
Your counsel, Mr O’Connell SC, submitted that you did not expect or foresee the events which unfolded at Mr Nightingale’s house on the evening of 24 October 2009 and that your offending arose in the context of the ensuing confusion, panic and shock, and that with the exception of attending to the relocation of the Holden Monaro, your involvement essentially ceased when Mr Nurdag was dropped off. Mr O’Connell also submitted that, apart from lies told to the police in your record of interview and your reluctance to name the fourth person, you were otherwise cooperative with the police by voluntarily attending at the police station, participating in the record of interview and video re-enactment, and ultimately pleading guilty to the charge of assisting offender.
Mr O’Connell relied upon your plea of guilty, you remorse, your youthfulness, bearing in mind that you were 20 at the time of the offending, your lack of prior convictions and your experience of imprisonment to date, which, he submitted, has effected its own specific deterrence, as has the experience of the incident itself and, together with the continued support of your family and your changed circumstances in that you will be living close to your family and are now a family man yourself, in these circumstances, Mr O’Connell submitted the 276 days that you have already served in custody is sufficient to reflect the gravity of the offending when measured against matters which go in mitigation on your behalf.
Mr O’Connell submitted that such a term of imprisonment is well within the range, accords with current sentencing practices, is proportionate to the maximum term of five years and, in all the circumstances, is a sentence which adequately and sufficiently manifests the denunciation which is required.
Matthew Grotheer, you are 30 years old and have admitted 9 prior convictions from two court appearances in 2004 and 2005. Your penalties included a community based order which you subsequently breached and various fines. You, as were Mr Puglia and Mr Bishop, were originally charged with murder, then subsequently manslaughter, and ultimately you pleaded guilty to assisting an offender. There is no evidence that when you went with the others to Mr Nightingale’s house, you knew Mr Nurdag was armed, and it is only after the shooting that you must have realised that he was armed. Nor were you involved in the attempt to purchase the ecstasy tablets, therefore the money outstanding was not owed to you. It is put by your counsel, Mr Danos, that you went to Mr Nightingale’s house solely to accompany your cousin, Mr Puglia. Nonetheless, you were present in the Monaro when it was driven off down the street, stopped and picked up Mr Nurdag and drove him away from the scene.
A report by clinical psychologist, Mr Jeffrey Cummins, dated 8 June 2010, was tendered in evidence as Exhibit “G3”. In that report, he details your personal circumstances and antecedents, which I accept. You were educated at the Holy Family School in Geelong and then Western Heights Secondary College, passing Year 9 at the age of 15. You left school and completed an apprenticeship as a spray painter, and at the time of this offence, you were working at Austrak, and two testimonials from the factory manager and the plant supervisor were tendered in evidence as Exhibit “G1”. They each speak of you as an honest, dependable and hard working employee. Terry Keay, a supervisor with Austrak, gave evidence that in the six months prior to this event, you had taken on a leadership role in the workplace and that he would support your application to return to work at Austrak.
More recently, you have been casually employed at SJL Motors Group, preparing cars for sale. A testimonial from that company tendered as Exhibit “G2” speaks of their preparedness to offer you work in the future. As a result of going into custody, you lost your job at Austrak, which was said to have been a lucrative one. You were in custody for 266 days before being granted bail, and the report by Mr Cummins describes you in that time as being moderately depressed and severely anxious. Mr Cummins otherwise described you as being of normal and average intelligence, without any problems associated with alcohol, drugs or gambling. It appears that you have come from a law abiding home and you were raised in a loving and caring family.
Since being released on bail, you have resided with your parents and you have abided by all bail conditions. Given your background of a stable family life, Mr Danos submitted that your offending was out of character. In a letter that you wrote to the Court, tendered as Exhibit “G4”, you apologised to all those involved, including Mr Nightingale’s family and friends and your own family and the community. You spoke of being very remorseful and ashamed, and reiterated that, had you known there was a gun in the car, you would not have gone to the house that day. You said that you would never have played a part in taking a human life, especially someone that you knew. I accept that you are remorseful for your conduct.
Your counsel has submitted that your plea of guilty, your limited role, your family support, your employment record and the fact that you have spent time in custody facing a charge of murder are all matters which go in mitigation of the sentence to be imposed when measured against the nature and gravity of the offending. In these circumstances, Mr Danos submitted the appropriate sentence is one equal to time spent in custody.
David Puglia, you are 31 years old. No prior convictions are alleged against you. You were educated at the Geelong High School and subsequently completed an apprenticeship in bricklaying. By the age of 21, you were self-employed in that trade. At the time you went into custody, you were operating a scaffolding and bricklaying business with Santo Tripodi. That business went into liquidation as a result of your incarceration and various business pressures.
Your wife, Meranda Puglia, gave evidence on your behalf. You and she have a 2½ year old son. Your wife operates a small take-away food shop in Corio. To enable her to do this, you take care of your son and you are also presently helping out a friend on weekend nights at his take-away shop in Lorne. This is to repay him for money he has lent you to fund your legal representation. Your wife also spoke of your remorse and the insight you have since gained into your offending conduct.
You come from a caring and supportive, law abiding family. Your parents operated a pet shop and aquarium in Geelong for 20 years. You are one of four children and your parents and various of your siblings have supported you by their presence in Court.
In 2008, you were diagnosed suffering severe ulcerative colitis. The condition is incurable and it can flare up at any time. It was said to have deteriorated while you were in custody, and it was the principal reason you were granted bail. It requires specialised management, daily medication and regular blood testing. I accept the matters pertaining to your condition as described in the various medical reports tendered in evidence on your behalf. I accept the report of Dr Michael Roberts dated 13 April 2011 and tendered in evidence as Exhibit “P1” where he describes you as suffering a severe medical condition which is both serious and dangerous to health, and that further gaol time would impact adversely on your health.
Mr Papas SC, who appeared on your behalf, described your involvement thus: you lent Mr Bishop some money, you were asked to come along and assist in the recovery of that money and you got yourself into something you had no idea of what was happening. In those circumstances, all three of you were in mortal danger and acting out of fear and panic. The offending, he conceded, was serious, but it occurred in a very short space of time and following upon great trauma associated with the firing of the gun and, in this sense, was a spontaneous reaction to the circumstances. Mr Papas submitted that, ultimately, there was not a great distinction between the roles of all three of you, Puglia, Bishop and Grotheer, and that in respect of you, Mr Puglia, given your chronic and serious medical condition and the evidence that your health would be adversely affected by imprisonment, a sentence equal to your pre-sentence detention of 210 days or a head sentence of three years with the balance in excess of that figure suspended, reflected the nature and gravity of the offending when weighed with the matters in mitigation, including your ill-health.
Mr Papas also relied upon your plea of guilty, which has avoided the necessity of a three to four week trial, and the fact that you, as did all of the others, initially faced a charge of murder and then subsequently manslaughter. Mr Papas also submitted that when you ultimately spoke with the police, you did nominate Mr Nurdag, and in that sense, you were cooperative with the police. Mr Papas also submitted that you had also been seriously injured in the incident, which required hospitalisation in excess of two weeks, that you were shocked by the incident itself and subsequently, while on remand, you were separated from your wife and young son, and all of these matters may be said to have impacted upon you in such a way that they have effected their own specific deterrence.
Mehmet Nurdag, you have also pleaded guilty to indictment number C1007386, which charges were uplifted from the County Court. Those charges relate to trafficking in a drug of dependence, namely amphetamine (charge 1); trafficking in a drug of dependence, namely 3-4-methylenedioxy-N-methylamphetamine (MDMA) (charge 2); trafficking in a drug of dependence, namely cannabis L (charge 3); being a prohibited person possessing a registered firearm (charge 4); being a prohibited person possessing an unregistered firearm (charge 5); and shortening the barrel of a long arm (charge 6). You have also pleaded guilty to the summary offence of dealing with property suspected of being the proceeds of crime.
On 22 January 2010, the police gained access to a telephone intercept which had been granted in relation to the investigation into the death of Brock Nightingale. It appeared that a significant number of the calls that were being monitored related to drug trafficking in the Geelong area. Operation Mulas B1 identified your activities and those of other targets in the telephone intercept who were involved in the trafficking of drugs. The Crown contend that between 22 January 2010 and 2 March 2010, you were trafficking drugs on a daily basis and used your mobile phone to organise the trafficking of the drugs and your car to deliver and collect them.
On 22 January 2010, a telephone intercept was activated on the telephone service used by you. It was monitored during the period 22 January and 2 March 2010, and during this time, investigators intercepted incoming and outgoing calls to and from your mobile phone, and conversations monitored during the telephone intercept related to drug trafficking. Police were also able to identify other persons of interest who were subsequently charged, and they included suppliers to you and purchasers from you. One of those persons identified was Dominic Battaglia.
On 25 February 2010, a telephone intercept warrant was issued on his phone, and on 28 February, police conducted surveillance and observed you to be meeting with Mr Battaglia, Fatih Nurdag and an unknown female. The police observed you to meet with them, having recently spoken to them on the telephone about the purchase or supply of drugs. The police had also conducted surveillance on you on 26 February 2010, and you were observed to meet separately with others the subject of the operation.
On 2 March 2010, you were arrested in respect of the Nightingale matter, and when the police searched your Proton coupe motor vehicle, they found under the front passenger seat a plastic zip seal bag containing two pink and one blue tablet. A search warrant was subsequently executed at Unit 313 at Storage King, North Geelong. This storage unit had been leased by you from 22 January 2010 and the key to the unit was found in your car. The search revealed a 1999 Honda motorcycle, a CR 250 trail bike, a Bolwell scooter, a Ducel motorcycle, documents pertaining to the lease of the storage unit, three mobile telephones, a clear zip lock bag containing a white powder substance, digital scales, a plastic container with a spoon and clear zip lock bag containing 55 grams of cutting agent with traces of amphetamine, two small cardboard boxes containing a large quantity of new clear zip lock bags, a container containing an unknown clear liquid substance, a .410 Stevens model 58 series firearm with the barrel and butt sawn off, a black imitation firearm and two gun cleaning brushes.
On 15 April 2010, police made an application to interview you in relation to these matters and subsequently an interview was conducted at the Geelong Police Station, where you made a no comment record of interview, which again is indeed your right.
The three charges relating to the trafficking in drugs of dependence arise from the telephone intercepts between 22 January and 2 March 2010, when it is alleged that you trafficked drugs, including cannabis, ecstasy and amphetamine, on a regular basis. These telephone conversations and text messages, in totality, detail the regularity with which it is contended you were contacted and demonstrated your involvement in the drug trade and culture.
In respect of charge 1, trafficking in amphetamine, the price of the amphetamine ascertained from the telephone intercepts was $700 for “an eight ball”, being 3.5 grams at $200 per gram. You were said to have sold 30.5 grams, resulting in sales of $6,100, but your profit could not be quantified.
In respect of charge 2, you were said to have sold 2,000 ecstasy tablets equating to $34,000 in sales, and you stated in the telephone intercept that you made a dollar profit per tablet, which would net a profit of $2,000.
In respect of charge 3, trafficking in cannabis, you were said to have sold 4.5 pounds at approximately $3,000 per pound, which would result in sales of $13,500 and again your profit was not able to be quantified. The total amount of your sales was said to be in the vicinity of $53,600.
Charge 4 and charge 6 on indictment C1007386 relate to the .410 bore Stevens model 58 series F bolt action repeater with the serial number C287296 which was located in the storage unit. The barrel and butt of that firearm had been cut down so as to reduce the overall length of the weapon to 57.5 centimetres.
Charge 5 on indictment number C1007386 relates to the unbranded imitation .45 automatic Colt pistol, which was also located in the storage unit. These firearms were reported stolen from a house burglary in May 2007, and the bolt action firearm was registered in the name of Desmond Guinane. None of these firearms match the firearm that was used in the shooting of Brock Nightingale.
In respect of charges 4 and 5, you qualify as a prohibited person by reason of the fact that it is not more than five years since you were convicted of an offence and ordered to serve a term of imprisonment of less than five years, you having, in 2006, been sentenced to 12 months’ imprisonment with a non-parole period of six months in respect of a count of recklessly causing injury.
The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for possessing a registered firearm whilst prohibited is 10 years’ imprisonment; for possessing an unregistered firearm whilst prohibited the maximum penalty is 15 years’ imprisonment; and the maximum penalty for shortening the barrel of a firearm is four years’ imprisonment.
The summary offence of dealing with property suspected of being the proceeds of crime relates to the Honda motorcycle, the Bolwell scooter and the Ducel motorcycle, which were located in the storage unit. Telephone intercepts revealed conversations relating to their purchase. The maximum penalty for that offence, being a summary matter pursuant to s 195 of the Crimes Act, is two years’ imprisonment.
In relation to indictment number C1007386, your co-offender, Dominic Battaglia, was sentenced in the County Court on 28 March 2011 in relation to four charges of trafficking. The trafficking alleged in his case amounted to $39,706, and he was sentenced to four years with a non-parole period of two years and nine months. The Crown contend that your trafficking was on a similar level to that of Battaglia. Other co-accused were dealt with in the Magistrates’ Court and received penalties ranging from fines to suspended sentences.
Mr Hallowes, who appeared on your behalf, acknowledged at the outset of the plea that you admitted that you were the person who caused the death of Brock Nightingale and therefore the person who has caused the trauma and grief and heartache of those who have lost a loved family member or friend. Mr Hallowes addressed the circumstances of the offending; that the four of you went around to Mr Nightingale’s house because a debt was owed to at least two of your co-offenders and that you took with you a loaded firearm. There was no evidence that in taking it to Mr Nightingale’s house you intended to use it to shoot Mr Nightingale. It appears it was taken to enforce the debt in some manner. It is clear that once at the house, there was a confrontation, and it was in those circumstances you discharged the firearm.
A report by forensic psychologist, Dr Aaron Cunningham, dated 26 April 2011, was tendered in evidence on your behalf as Exhibit “MN1”. It details your personal circumstances and antecedents, which I accept. You are now 28 years old. You were 27 at the time of the killing. Both your parents migrated to Australia from Turkey, but you were born here. You have an older brother Fatih, and an older sister, Sultan. Originally, the family lived in Melbourne before moving to Geelong. Your parents separated when you were eight years of age. The separation was acrimonious, and you and your brother went to live with your father, and your sister went to live with your mother. You and your mother are presently estranged; you have not spoken to her for five years.
You attended school at Geelong and left the North Geelong Secondary College during Year 12 to commence work. You worked as a plasterer in your brother’s business for approximately six years. During this time, you committed a number of offences. On 3 April 2001, you were dealt with for recklessly causing serious injury, recklessly causing injury and assault in company. The offences arose out of an altercation at a nightclub and occurred in August 2000 when you were 18. You were sentenced to a term of imprisonment of three months, which was wholly suspended for two years, and a 12 months community based order.
On 7 October 2002, those sentences were breached by a conviction for recklessly causing serious injury, which was occasioned in January 2002. That offence again involved an assault outside a nightclub, and you were sentenced to 12 months’ imprisonment with a non-parole period of nine months.
On 3 May 2006, you were again dealt with for recklessly causing injury, and on that occasion you were sentenced to 12 months’ imprisonment with a non-parole period of six months. That offence related to an assault at a wedding. Thus, you have relevant prior convictions for offences of violence for which you had been sentenced to terms of imprisonment, one of which was suspended, but subsequently restored.
You began using amphetamines and ecstasy at the age of 19, and your drug use escalated when you were 23, consequent upon your father’s death. At the time that you killed Brock Nightingale, you were using one gram of amphetamines on a daily basis and were frequently using cocaine and ecstasy. You became depressed after your father’s death and, in this context, your amphetamine use increased, and in Dr Cunningham’s opinion, you qualify for a diagnosis of substance abuse disorder. Dr Cunningham assessed you to be a low to moderate risk of violent re-offending, and that your violent behaviour occurred in the context of substance abuse and/or negative peer associations. In Dr Cunningham’s opinion, your depressive disorder contributed to the increase in amphetamine use and subsequently impaired your insight and judgment. In his opinion, you continued to present with symptoms of adjustment disorder and that you have difficulty in coping with the adjustment to your father’s death. In Dr Cunningham’s opinion, you present with remorse and insight into the wrongfulness of your actions. You presented to Dr Cunningham as motivated to abstain from further drug use and desirous of rebuilding your relationship with your mother. You told Dr Cunningham that you were shattered about the offence and that if you were not dealing with drugs, you would not have had a gun and would not have gone along with Mr Nightingale’s friends. You frankly told him that a mans’ life is not worth the debt that his friends were owed. In Dr Cunningham’s opinion, your remorse was appropriate in that it focused on the consequences to the victim, rather than the consequences of your imprisonment.
Mr Hallowes submitted that you became involved in trafficking drugs to fund your own habit, but subsequently you began to make money out of it, although your activities did not support a lavish lifestyle. Nonetheless, you were able to purchase the three bikes the subject of the summary charge and rent a house at Bell Post Hill. Mr Hallowes submitted that the firearm and imitation handgun were in your possession as they were part of the accoutrements of the drug culture. Mr Hallowes further submitted that your prospects for rehabilitation are not without hope, particularly with advancing maturity and provided you address your substance abuse and negative peer associations. Mr Hallowes submitted that I take into account your plea of guilty to the crime of manslaughter, which was made on 10 March 2011 and accepted shortly after, 21 March 2011, particularly in circumstances where it appeared to lead to the resolution of matters in respect of your co-accused.
Mr Kissane, who appeared on behalf of the Crown, accepted that there was significant utility in your plea of guilty to manslaughter and that it was a precipitating factor that led to the resolution of the other matters facing your co-accused. In respect of the drug offences, that, too, was settled at around the committal stage and, accordingly, you are entitled to a discount for an early plea in relation to those matters. The Crown contend, and I accept, that this manslaughter is a serious example of the crime, involving as it does the use of a firearm.
Mehmet Nurdag, in sentencing you in respect of both indictments and the summary charge, I take into account your pleas of guilty and give you a discount for them. I take into account in respect of the indictable matters that your pleas have saved the community the cost of two trials and the witnesses, in particular the family of Brock Nightingale, the ordeal of one. I take into account also that your plea to the crime of manslaughter was of significant utilitarian value, as it enabled your co-accused to more readily resolve their respective positions.
I take into account also your genuine remorse and your acknowledgment that your actions in taking a loaded firearm with you to Brock Nightingale’s house has ultimately led to the death of another young man. I take into account also that if you address your drug use and your negative peer associations, your rehabilitation may well be achievable. I take into account all matters which go in your favour.
Against those matters stand the nature and gravity of the offences here committed. The offence of manslaughter in this instance is conceded to be a serious example of the crime, involving as it does the use of a firearm. The drug trafficking offences are also serious offences. They were committed on a daily basis between 22 January and 2 March 2010 on such a scale that permitted you to support yourself from it. The charges relating to the firearms are a stark reminder that the illicit drug culture is fraught with danger and the summary charge speaks for itself.
In sentencing you, I take into account the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and also seek to specifically deter you from re-offending, noting, as I do, that previous sentences of imprisonment have failed to do so. Any sentence I impose must also give due weight to general deterrence, so that like-minded persons in the community will know that if they engage in conduct such as you have here, they can expect condign punishment.
Accordingly, in respect of indictment number C0907130.1 on the charge of manslaughter, you are convicted and sentenced to nine years’ imprisonment.
On indictment number C1007386, you are convicted and sentenced as follows:
Charge 1, trafficking in a drug of dependence, namely amphetamine: 2½ years’ imprisonment.
Charge 2, trafficking in a drug of dependence, being 3,4-methylenedioxy-N-methylamphetamine (MDMA): 3 years’ imprisonment.
Charge 3, trafficking in a drug of dependence, namely cannabis L: 2 years’ imprisonment.
Charge 4, being a prohibited person possessing a registered firearm: 2 years’ imprisonment.
Charge 5, being a prohibited person possessing an unregistered firearm: 2½ years’ imprisonment.
Charge 6, shortening the barrel of a long arm: 12 months’ imprisonment.
In respect of the summary offence of being in possession of property suspected of being the proceeds of crime, you are convicted and sentenced to 12 months imprisonment.
In respect of indictment number C1007386, in order to address the fact that your offending occurred over the same period but nonetheless involves discrete offences, I propose to order as follows:
Charge 2 is to operate as the base sentence. Six months of the sentence in respect of Charge 1 and three months of the sentence in respect of Charge 3 is to be served cumulatively with the sentence imposed on Charge 2; that is, three years and nine months.
Three months of the sentence on Charge 6 is to be served cumulatively with the sentence on Charge 4; that is, two years and three months.
Nine months of the sentence on Charge 5 is to be served cumulatively with the sentences imposed on Charges 4 and 6; that is, three years.
One year of the sentences so imposed on Charges 4, 5 and 6 is to be served cumulatively with the sentences imposed in respect of Charges 1, 2 and 3; that is, four years and nine months.
In respect of the summary offence, three months of the sentence is to be served cumulatively with the sentences so imposed in respect of indictment number C1007386; that is a total effective sentence of five years in respect of that indictment.
So as to address the principles of totality and parsimony, I propose to order that two years of the sentences so imposed in respect of indictment number C1007386 be served cumulatively with the sentence imposed in respect of indictment number C0907130.1; that is, 11 years’ imprisonment.
So as to address your prospects for rehabilitation, I propose to order that you serve a non-parole period of eight and a half years and I declare that you have already served by way of pre-sentence detention a period of 463 days.
Pursuant to s 6AAA(2) of the Sentencing Act, were it not for your pleas of guilty to both indictments and the summary matter, I would have sentenced you to 13 years’ imprisonment with a non-parole period of 10 years.
In respect of you, Jayden Pall Bishop, Mathew Grotheer and David Sam Puglia, Mr Kissane submitted that each of you had played an equal part in the offending conduct and, accordingly, an immediate custodial sentence in respect of each of you is appropriate, and that a sentence equal to time served does not adequately reflect considerations of general and specific deterrence and denunciation. Mr Kissane submitted that a sentence up to three years’ imprisonment is within the range.
Given the maximum penalty of five years and the serious nature of the offending, I accept the Crown’s submission that a sentence equal to time served does not adequately reflect all of the relevant sentencing principles. There is, however, considerable strength in the submission put that each of you not be required to serve further time in custody. As each of you are relatively young men and neither of you have been in gaol before you were remanded in respect of this matter, one would hope that the experience has been a salutary one and, in respect of each of you, with the support of your respective families, your rehabilitation is likely to be achieved.
Jayden Pall Bishop, Matthew Grotheer and David Sam Puglia, in sentencing each of you I have regard to the nature and gravity of the offence and your respective roles in it. I accept the Crown’s submission that as to your respective roles on the day, there is very little to distinguish you. The gravamen of the offence to which you have each pleaded is essentially assisting Mr Nurdag to flee the scene. Certainly, you, Mr Puglia, lied to the medical staff about where you had been shot, but that may have been just as much to protect your own interests and thus adds nothing to your criminality, and certainly you, Mr Bishop, did arrange for the Monaro to be moved to Leopold, but again that does not add much to your criminality, as it may also have been done to protect your own interests in an endeavour to distance yourself and, indeed, others from the car. You, Mr Grotheer, were in the car when it drove off down the street and picked up Mr Nurdag. Nothing further is alleged against you. Nonetheless, even though the criminal conduct of each of you is essentially the assistance you gave to Mr Nurdag in fleeing the scene, that, of itself, is a serious instance of the offence of assisting an offender and may be distinguished from other examples of the offence, such as destroying evidence and the like.
In sentencing each of you, I take into account your pleas of guilty and give you a discount for them. I do not, however, give you a discount for an earlier plea of guilty, not because, as Mr Kissane submitted, you could have made the offer to plead at any time to the offence of assisting offender, it being a statutory alternative to murder, for indeed it is unlikely that such a plea would have been accepted in resolution of that charge, but because no plea was in fact offered prior to trial. I do, however, take into account that by reason of your pleas, you have each saved the community the cost of a lengthy trial and the witnesses, in particular the family of Brock Nightingale, the ordeal of one. I take into account also that each of you have been held in remand on charges initially of murder and then subsequently of manslaughter, and I acknowledge that in respect of each of you, I am sentencing you in respect of the offence of assisting an offender only and no other offence or activity.
In respect of you, Jayden Bishop, I take into account your age now and the fact that you were 20 at the time of the offence. I take into account your remorse and insight into your offending behaviour. I take into account also your lack of prior convictions and the fact that you have the support of your family and that, with the support of your family, you rehabilitation may be assured, in particular, as you seem now to appreciate that involvement in the drug culture can and does have catastrophic consequences. I take into account all matters which go in your favour, including your cooperation with the police by attending at the police station, participating in the record of interview and the video re-enactment. I acknowledge that, although you were not entirely frank with the police, you were nonetheless cooperative with them. In short, I take into account all matters which go in your favour. Accordingly, for the crime of assisting an offender, you are convicted and sentenced to two years’ imprisonment. I propose, pursuant to s 27(1A) of the Sentencing Act, to partially suspend all but 276 days of that sentence and I declare the operational period of the sentence is two years. I also declare that you have already served by way of pre-sentence detention a period of 276 days. I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, you would have been sentenced to three years’ imprisonment with a non-parole period of 18 months actually to be served.
Matthew Grotheer, in sentencing you, I take into account your modest criminal history, your limited role in the incident, your family support and employment record, the fact that you are remorseful and ashamed, and that you are regarded as an honest and dependable person for whom this behaviour may be said to be out of character. In sentencing you, I take into account all matters which go in your favour and, accordingly, you are convicted and sentenced to two years’ imprisonment. I propose to partially suspend all but 266 days. I declare the operational period is two years. I declare that you have served a period of 266 days by way of pre-sentence detention. I declare pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, you would have been sentenced to three years’ imprisonment with a non-parole period of 18 months actually to be served.
David Sam Puglia, I take into account that no prior convictions are alleged against you, that you are a qualified tradesman with the ability to operate a business. I take into account also that you are a family man and that you have expressed remorse and developed insight into your offending conduct. I take into account also that you suffer from a serious medical condition and that imprisonment will adversely affect your physical health. In short, I take into account all matters which go in your favour and, accordingly, you are convicted and sentenced to two years’ imprisonment. I propose to partially suspend all but 210 days of that sentence. I declare the operational period to be two years. I declare that you have served a period of 210 days by way of pre-sentence detention and I declare, pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, you would have been sentenced to 30 months’ imprisonment with a non-parole period of 14 months so as to address your ill-health.
The different matters which go in mitigation in respect of each of you, when measured against your respective, effectively identical, roles in the offending conduct are, in my view, adequately reflected in the variations in the time to be served ordered under the partial suspension of each of those sentences.
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