R v Oznek
[2007] VSC 192
•8 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1497 of 2006
| THE QUEEN |
| v |
| YASIN OZNEK |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2007 | |
DATE OF SENTENCE: | 8 June 2007 | |
CASE MAY BE CITED AS: | R v Oznek | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 192 | |
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Criminal Law - Sentencing – Manslaughter – Plea of guilty – Stabbing in the course of a fight relating to drug proceeds - Imprisonment for 7 years - Non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams | Office of Public Prosecutions |
| For the Accused | Mr I Freckelton | Galbally & O’Bryan |
HIS HONOUR:
Yasin Oznek, you were originally charged with one count of murder. You were committed for trial on that charge. In about March of this year the Crown indicated that a plea of guilty to manslaughter on the basis of an unlawful and dangerous act would be accepted. You have now pleaded guilty to that charge.
On 4 October 2005, you fatally stabbed Adam Roks in the course of a physical fight between the two of you. At that time, you and Adam Roks had known each other for about nine years. Until about two years before the incident, the two of you were close friends. You had regularly visited Adam Roks, and his partner, Sophie Iliopoulos, and their three children.
Regrettably, Adam Roks and you had developed an interest in marijuana. In 2003, the two of you set up two rooms in a suburban rented home to cultivate cannabis. The hydroponic equipment was supplied by an associate of Adam Roks who owned a hydroponic supply business. The associate may also have been involved in the venture generally. A crop of cannabis was cultivated over about three months. You received about 450 grams of cannabis from the venture. Over a period you consumed that cannabis yourself. From the outset you believed that you were owed in addition some money from the sale of the remaining cannabis. You believed that you had been cheated by Adam Roks and his associate. That aggrieved you. You had very little contact with Adam Roks and his family for about two years. Then, in late September 2005, you contacted Adam Roks and told him that you wanted to get in touch with the associate, as to the money. Principally, the focus of your anger was the associate rather than Adam Roks. However, Adam Roks alone knew how to make contact with the associate, and he chose not to tell you.
There were then a number of abusive and threatening text messages and phone calls from you to Adam Roks. You purported to give him a deadline of 7 days to supply the information that you wanted. On 4 October 2005, the text messages were particularly nasty, abusive and calculated to antagonise. In one message, you referred to his children, said that they would not save him and that they were better off without him. I accept that you did not actually mean to threaten the children in that message, but it appears that Adam Roks believed that you did. You indicated in one message on 4 October 2005 that you were prepared to have a confrontation with Adam Roks “anywhere anytime”. To be quite so antagonistic was surprising given that you were aware that Adam Roks was a black belt second Dan in karate.
At 10.19 pm on 4 October 2005, Adam Roks told you by telephone that he was on his way to the house where you and your parents lived to see you. You told him that you did not want him coming to the house. Within minutes Adam Roks arrived at your home in Lalor accompanied by a male friend named Birol Cihan. Adam Roks rang you to say he had arrived. He got out of his vehicle, whilst Mr Cihan waited in the front passenger seat. You went to the kitchen. You picked up a white handled Wiltshire StaySharp knife in its scabbard. You put the knife in your track suit pants pocket. The two of you met close to the front gate. There was some pushing and yelling between you. Then, Adam Roks punched you to the face, causing a fracture of your nose. The two of you exchanged further punches. You were struck to the head several times. At that stage, you took out the knife, and removed it from the scabbard. You waved the knife in front of Adam Roks. You then stabbed Adam Roks in the chest. You dropped the knife in a nearby garden bed. The two of you continued to swing punches at each other, until your father and Birol Cihan both intervened. Shortly after that, Adam Roks collapsed. The one stab wound was to prove fatal. A call was made to 000, with Birol Cihan talking to the operator. During the call, the operator asked Birol Cihan about the location of the knife. He asked you if it was still embedded in the wound. You replied: "Hopefully it is". The aggressiveness of that response did not last. When you spoke later with the police, you co-operated with them. You expressed remorse for your actions. You also said that at the time that you took the knife from your pocket, you feared for your life.
What I have said so far is based on the statement of the circumstances of the offence in the Crown opening, which your counsel said you “accepted unreservedly”[1]. In addition, you told the police that, before any physical contact occurred, you had said to Adam Roks you would not take the matter further; that you had then walked back a few steps towards the house; that Adam Roks nevertheless followed you into the front yard; that you then began screaming at him to leave; that you pushed him away; that he then began to punch you; that the fight continued there in about the middle of the front yard; and that you believed yourself to be acting in self-defence when you used the knife.[2]
[1]Transcript p 23.
[2]Record of interview questions 286-297, 405.
At the committal, Birol Cihan gave evidence to the contrary. He said that he had left the car and had walked over to a point three metres away from where you and Adam Roks were arguing. He said that, although it was dark save for a nearby street light, he could see and hear clearly what was happening. He said that you were very aggressive in your language; that after some pushing to and fro you appeared to pull a knife out of your jumper and he yelled out that you had a knife; that Adam Roks then tried to run but seemed to be caught near the front gate; that Adam Roks tried to protect himself from your swinging of the knife and at the same time was throwing punches at you in self-defence; that he and your father intervened but by then you had stabbed Adam Roks. Mr Cihan was cross-examined searchingly at the committal and no doubt his evidence would have been strongly challenged at trial.
I cannot resolve the conflicts between these versions of events. Whilst I am not obliged to proceed on the basis of the most favourable view of the evidence from your perspective, I cannot take into account against you any adverse matter that is not either admitted by you or proven beyond reasonable doubt. Mr Cihan’s version of events, insofar as it differs from yours, is not proven beyond reasonable doubt. Hence I do not proceed on the basis that you attacked Adam Roks with the knife as he was trying to escape. I confine myself to the statement of the circumstances of the offence contained in the Crown’s opening, which, as I have said, your counsel accepted and which I have already summarised.
As your counsel acknowledged, the plea to manslaughter means, obviously, that the defence of self-defence is not pursued. On the other hand, I accept that the stabbing itself occurred in a context in which you were in a state of agitation and fear. Adam Roks, whom you knew to be proficient in martial arts and whom you justifiably believed to have been violent towards his own partner, Sophie Iliopoulos, in the past, had arrived at your house, in company, at night, contrary to your express request. It was later found that he had had amphetamines and methamphetamines in his system. He had punched you several times, and had broken your nose, before you produced the knife. You told the police that the handle of the knife was visible to Adam Roks at all times, but the Crown does not necessarily accept this. The Crown refers to Mr Cihan’s evidence in this regard. However that may be, the Crown does accept that you waved the knife in front of Adam Roks before you stabbed him.
On the other hand, the confrontation would not have occurred at all but for your demands and threats in relation to the proceeds of the drug enterprise; and the death of Adam Roks would not have occurred if you had not armed yourself with a knife before going out to meet him when he arrived at your house.
I have read carefully the victim impact statements prepared by Sophie Iliopoulos and by Marsel Roks, the father of Adam Roks. The statements bring home the continuing emotional, physical and financial effects of the death of Adam Roks on his family, and particularly his close family , including his own young child and the other two children of Sophie Iliopoulos, in relation to whom Adam Roks had assumed the role of father. You have, through Dr Freckelton, made known to members of the family of Adam Roks your desire to unreservedly apologise for what you have done.
You are now 25 years of age, having been born in Turkey in July 1981. You came to Australia with your family in 1986. At the time of this offence you were aged 24, single and living at your family's home at Lalor.
Your educational history is somewhat erratic. You attended six schools during your primary and secondary school years. You left school at the end of year 10 against the will of your father. You have been a user of marijuana since the age of 15. You became significantly addicted to it, using up to two grams a day at times. You have attended for detoxification at Moreland Hall. You started using heroin intravenously and smoking it from the age of 17. You contracted Hepatitis B by the age of 18. You have admitted to using amphetamine and ice during 2005. It is a good sign that all drug tests since your remand for this offence have been negative.
Your employment history is also somewhat erratic. Although unemployed in October 2005, you have worked in various jobs including at McDonalds, in your father’s delivery business, in a window manufacturing business and at a poultry farm. Prior to 4 October 2005, you had commenced a TAFE course in Community Development and passed the first semester. You were arranging to do volunteer work with Meals on Wheels and a Whittlesea resource centre. You had also applied to sponsor a child overseas. On 4 October 2005, in the morning, you attended a job interview as an assembly worker at a factory in South Melbourne. You did well, and were told that you would be offered a job.
Further details as to your background are contained in the reports of the psychologist, Mr Jeffrey Cummins, who has seen you on several occasions, the first being on 6 October 2005, within days of the stabbing. He then concluded that you had been experiencing symptoms of an adjustment disorder with mixed disturbance of emotions and conduct. He noted that you had made to him some comments possibly consistent with your experiencing drug-induced delusional thoughts. Reassessed on 19 October, Mr Cummins found you paranoid and reporting persecutory delusions. The provisional diagnoses given at that time by prison staff were drug induced psychosis and/or schizophrenia. Anti-psychotic medication was prescribed. Assessed again on 27 November 2005 you expressed paranoid sentiments and reported that you were being poisoned by prison staff. However Mr Cummins has reported that by the time he saw you on 31 March 2007 you had been taking anti-depressant medication for 13 months. Your mood state had improved dramatically. You did not appear to be engaging in any delusional thinking and you appeared to be quite alert and responsive. Your psychological/psychiatric state was now in full remission. However it was recommended that you continue to take an anti-depressant.
Your counsel, Dr Freckelton, submitted on the plea that a potentially important issue in this matter was why you became so unreasonably angry in the period between 27 September and 4 October 2005. He said he had no clear answer for that. He raised the possibility of the effects of past drug use. He referred to the views of Mr Cummins, who, in his last report, expressed the opinion that at the time of the offending you would have been diagnosed with a Cannabis Dependence Disorder (DSM-IV-TR, code 304.30). In that report Mr Cummins continued (referring to you):
“He states to the best of his recall he was not specifically under the influence of any illicit drug at the time of stabbing Adam Roks on 4/10/2005. Nonetheless, he said he would still have been withdrawing from cannabis which he thinks he would have last smoked perhaps five or seven days prior to 4/10/2005. Of significance is the fact for some weeks and months prior to 4/10/2005, he had been feeling different and somewhat strange and had been withdrawing from his parents and feeling depressed and also feeling that life was not worth living. I have met with his parents and sister who have indicated that shortly prior to his offending of 4/10/2005 they had been encouraging Mr Oznek to seek counselling in relation to his changed behaviour and changed mood states.”
In an addendum to the report, Mr Cummins said that your parents and sister had confirmed that you had become “quite paranoid” prior to the incident of 4 October 2005, to the point where your employer at Majestic Windows had put you off work on that account.
Dr Freckelton called your sister, Yasmin, to give evidence about your appearance and behaviour in the period shortly before the incident. Yasmin is a social worker who works in the field of mental health. Yasmin said, and I accept, that you were inclined to withdraw and isolate yourself at that time; that you appeared to be depressed; and that you were expressing irrational beliefs about being persecuted by people at work. I appreciate that Yasmin is not qualified to express an expert medical opinion, but her lay observations are still worthy of note. There are similar observations in your mother’s witness statement. Ms Iliopoulos’ statement contains material to the effect that Adam Roks had cut off contact with you due to your getting into heavy drugs; and to the effect that, just prior to the offence, you were screaming at Adam over the phone.
Dr Freckelton stressed that you did not qualify for a mental impairment defence, but submitted that your judgment at the time of the offence was affected by a condition that was probably drug-induced, that necessitated a lengthy prescription of anti-psychotic medication, and that had since gone away. Dr Freckelton said that this was all consistent with a man who was labouring under increasing elements of paranoia and irrational anger.
Dr Freckelton asked me to take your mental state into account in a “broad sense”. He submitted that your judgment was clouded by reason of your mental state “whatever it was that had caused that”[3]; that this has been treated very effectively with medication; and that you now have a very different attitude to life. He said that this impacted on your culpability and the need for punishment, retribution and specific deterrence; and also on the protection of the community, because the conditions which have played a role in your conduct are addressed by pharmacotherapy.
[3]Transcript 89-90.
Dr Freckelton went on to say that he was not putting these submissions on the basis that R v Tsiaras[4] was applicable. He said that the impairment of your mental state did not reach the level necessary for the application of that case to the sentencing exercise.
[4][1996] 1 VR 398.
It seems that Dr Freckelton’s submission in this regard may have been affected by an understanding that the Tsiaras principles were confined to cases of serious psychiatric illness. This has apparently been a prevalent view among legal practitioners. However, since the hearing of the plea in the present case, the Court of Appeal has restated the Tsiaras principles in R v Verdins; R v Buckley; R v Vo[5]. The Court of Appeal said that the sentencing considerations identified in Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness”. Rather:
[5][2007] VSCA 102 (23 May 2007).
“One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.”[6]
[6]At [5].
The Tsiaras principles were restated as follows[7]:
“1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
[7]At [32].
Nevertheless, Dr Freckelton’s submission suffers from at least two difficulties: first, there is no clear identification in the evidence of the type of mental impairment from which you may have been suffering at the time; and secondly (and more importantly), there is no clear evidence that any such condition had any of the effects which tend to reduce moral culpability, of the kind referred to in para 26 of R v Verdins, namely (omitting footnotes):
“(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.”
In Mr Cummins’ initial report of 7 October 2005, he said that at interview on 6 October 2005 you were well spoken and appeared to be quite lucid and presented as being of average intelligence. He said that you did present as having a somewhat dependent personality style. As already mentioned, he did express the opinion that you had been experiencing symptoms of an “adjustment disorder with mixed disturbance of emotions and conduct” over a number of years, and he did say that you had made some unusual comments which could have been consistent with you experiencing some drug induced delusional thoughts. However, he did not diagnose you as being schizophrenic or as suffering from an obvious drug induced mood disorder or any other psychotic condition.
As already mentioned, in Mr Cummins’ most recent report (of 10 April 2007), he says that at the time of the offending you would have been diagnosed with a Cannabis Dependence Disorder. Mr Cummins does not explain what either this diagnosis or his earlier diagnosis means or entails or whether the two diagnoses can be reconciled. Nor does he say in terms that, on either diagnosis, your ability to exercise appropriate judgment or to make calm and rational choices or to think clearly would have been affected, or that any of the other consequences referred to in para 26 of Verdins would have been triggered.
Despite this, I am prepared to infer from all of the evidence that your mental functioning at the time of the offence was impaired by some kind of disorder related to long standing cannabis use and that this did cloud your mind, as Dr Freckelton submitted. However, I am not satisfied that the impairment of your mental functioning was particularly substantial or weighty in degree, nature or extent. In my view it reduces your moral culpability to a limited extent only. General and specific deterrence still operate, sensibly moderated[8]. This matter also reduces, to a limited extent, the weight to be given to community protection in your case and it aids your cause, to a limited extent, in relation to the prospects of rehabilitation.
[8]Cf R v Williams [2000] VSCA 174 at [10]; R v Verdins [2007] VSCA 102 at [14]-[22].
The stabbing of Adam Roks is another example of tragic consequences resulting, at least in part, from drug cultivation and use. The sentence that I impose must be seen to denounce the commission of crimes in which a knife is used as a weapon and to serve the purposes of general deterrence.
You have prior convictions relating to your use of illegal drugs and for assault and theft. They and the convictions for failing to answer bail reflect a poor attitude to compliance with the law. Specific deterrence is a factor I must have regard to.
I must take into account a number of mitigating factors that operate in your favour. One is your youth. Others include your plea of guilty, your remorse, and your reasonably good prospects of rehabilitation. I accept that you are genuinely remorseful. I can understand why serious consideration would have been given to whether or not you should persist in a plea of self-defence which was open to you. Your plea of guilty to manslaughter has reduced the level of distress for the family of Adam Roks and has saved much time, trouble and expense for the potential witnesses and the Court. You have a very supportive family. Your sister, Yasmin, impressed me with her testimony as to the close relationship she has with you. The support you have from the Turkish community is clear from the thirty-one references tendered on the plea hearing. I accept that you have tried to use your time in prison constructively, having done a number of available courses. And, as already mentioned, it is very encouraging that your prison drug tests are clear.
The maximum sentence for manslaughter is 20 years imprisonment. The Court must uphold and protect human life. Your counsel tendered a statistical document published in September 2005 by the Sentencing Advisory Council relating to sentencing trends for manslaughter in Victoria. I have had regard to that document in a general way and have endeavoured to inform myself further of current sentencing practices in Victoria in manslaughter cases by own research. However I recognise that many variables may affect sentencing in manslaughter cases in particular, and that there are limitations on the usefulness of sentencing statistics generally[9].
[9]R v Moore [2002] VSCA 33; R v Bangard [2005] VSCA 313; R v Walsh [2006] VSCA 87 at [29]-[30]; R v Casey [2006] VSC 146 at [21]-[25]; R v Randall [2007] VSC 35 at [43].
I declare 613 days of pre-sentence detention and direct that this be entered in the court records. I make orders, no objection having been raised, for the retention of the forensic sample and the disposal of the knife. Having regard to the provisions of sections 5 and 6 of the Sentencing Act 1991 and taking into account all of the matters to which I have referred, I impose a sentence of imprisonment for 7 years and fix a non-parole period of 5 years.
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