R v Sengoz
[2011] VSC 652
•15 December 2011
| IN THE SUPREME COURT OF VICTORIA | Revised Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0083 of 2011
| THE QUEEN |
| v |
| UMIT SENGOZ |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2011 | |
DATE OF SENTENCE: | 15 December 2011 | |
CASE MAY BE CITED AS: | R v Sengoz | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 652 | |
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CRIMINAL LAW – Murder – Plea of Guilty – Impact of psychiatric and psychological material on sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr I. Hill QC with Mr S. Robertson | Wood Fussell Solictors |
HIS HONOUR:
Umit Sengoz, on 20 July 2011, you pleaded guilty to the murder of Peter Robert Harper on 13 August 2010. A plea hearing was conducted before me on 26 August 2011. Peter Harper was 63 years of age.
His body was found at his home by the police on 15 August 2010 following calls made by family and friends. An autopsy revealed that Mr Harper had been stabbed a total of 123 times to the body including the torso, chest, left and right arm, left and right leg, upper and lower back, face, back of the neck and head. The cause of death was determined as haemorrhage from the totality of the stab wounds.
You met Mr Harper through a gay internet website being Gayromeo.com in late 2009. Through this medium, you established a rapport which led to sexual encounters with Mr Harper.
On Tuesday 10 August 2010 you engaged in a text message conversation with Mr Harper which resulted in you making a haircut appointment for Thursday 12 August as Mr Harper ran a hairdressing business from his home called “Cutzz”. At this stage Mr Harper did not have your phone number stored in his mobile and asked who it was that was requesting the appointment, you identified yourself as being “sengozumt from gayromeo.”
That same night you texted Mr Harper saying you would come over the following morning. Mr Harper gave you a time when he was free and you replied, “I want to be alone.”
On the evening of the Thursday, you told your friend Fatih Aker via the Facebook website that you were going to buy a car the next day and that you wanted him to come with you. He agreed on the condition that he could bring two of his school friends, Messrs Yzici and Onurcu.
The following morning you picked up Mr Aker in your Honda Prelude and drove him to his school in Hawthorn and stated that you would then pick him and his friends up at 10.30am. You picked up Mr Aker and his two friends at about 10.40am and whilst sitting in the car, showed your passengers a brown handled knife. You told your friends on the way to Mr Harper’s house that you were going to buy a Lexus and arranged for your friends to take the Honda Prelude once you were dropped off at Mr Harper’s house at about 11.45am.
Although you gave a series of inaccurate versions to police as to what had happened, which included allegations that the deceased had attempted to extort money from you over a video showing yourself and Mr Harper engaged in sexual activity, you also said that after an argument it was the deceased who had produced the knife.
Ultimately the following version emerged. You said that you had been to visit Mr Harper on Thursday 12 August 2012 for a haircut. The deceased had talked about going to Turkey on holiday and engaging in sexual activity with men whilst there. The deceased made comments about Turkey which you regarded as offensive. You engaged in consensual sexual activity and you were wanting to return to the house the next day.
You arrived at the premises but Mr Harper was still with a client. You smoked a cigarette with your friends before they drove off and you entered the unit. Mr Harper finished with the previous client just after midday.
You told the police that Mr Harper started making offensive remarks to you and making fun of you. You admitted that he did not ask for money for the video, instead you offered him money for it, but he replied “you’re too poor”. He continued to be offensive to you when you told him that you had been communicating with a girl on the internet. The remarks made you angry.
You said that you got a knife out of the cupboard. You started to perform oral sex on Mr Harper and you asked him “Did you ever think of dying?” He replied “No. I’m going to live for long years.” You asked, ‘How do you believe in that? What makes you so confident that at anytime we can die, any second?” You talked with Mr Harper about Turkey and you became angry and produced the knife. You showed him the knife and said, “You know what will happen if I kill you? See, the money doesn’t buy anything. I can kill you easily now.” As Mr Harper started pushing you, you lost control and stabbed him. You said you did not know what happened after that. You told the police that you only wanted to scare the deceased so that he would stay away and stop teasing you. You said you never intended to kill anyone.
In an earlier interview you told police that you had changed clothes at the house. You had taken a change of clothes in your backpack. You said that you searched both the house and the car for the video but did not find it. You did not take the Lexus because you were unable to start it.
Insofar as your assertion of changing clothes is concerned, it appears that you must have done so because there was no blood staining on your clothes at the time you were later seen by your friends.
At about 2.00pm, you contacted Mr Onurcu in order to tell him that you had to go with Mr Baker to confirm whether there was any outstanding finance owed on the car and that they should go back to their school. In a call roughly 40 minutes later you said that you were unable to get the Lexus and that you would catch a taxi and meet him and others at their school. At about 3.40pm, Mr Onurcu contacted you again and you stated that the taxi never arrived and could you be picked up where you were. When entering the car, you were observed to have a deep cut on your right finger. You explained the injury was a result of your falling over when you were trying to cut off a loose thread on the cuff of your trousers.
You all then went to Swinburne University where Mr Yazici parted ways, and then the remaining three of you went to dinner before you drove Mr Ourcu to his home in Broadmeadows. You then attended at a doctor’s office in Broadmeadows to have your finger examined and you and Mr Aker then went to your respective homes.
At about 11.00pm the same day, your parents then drove you to the Dandenong Hospital as your finger was in need of further attention. When you were asked by your father what happened, you claimed that you were wearing slippery shoes at school and that you slipped and cut your finger on a fence. You were subsequently admitted for surgery the following morning which required you to stay overnight.
On the afternoon of 16 August, you told your parents that “someone had stabbed [you] and it was a stab mark on [your] finger”. Then you told your parents that it was a hairdresser and that something very bad had happened. You then refused to talk about it any more. Just after 6.00pm, you telephoned your aunty and told her that you were going to hand yourself in because “it’s on TV”.
At 6.30pm, you went to the Dandenong Police Station with your father and handed yourself in.
It was over the next two days that you made admissions to the police.
A knife had been found at Mr Harper’s home. It was a brown handled pocket knife which your three friends identified via a photoboard as being similar to the knife which had been shown to them in the car.
Although a large amount of photographic equipment, data storage devices and computer hard drives were seized from Mr Harper's home, no recording of you engaging in sexual activity was found.
On the plea I received two victim impact statements from Mr Harper’s sister, Joanne Mary Schroder and Mr Geoff Harper, the brother of the deceased. Mr Harper read his statement in court. Mr Peter Harper was a much loved brother and uncle and he will be missed by his extended family. The family’s loss has been profound. The victim impact material was moving.
As I observed at the time of the plea, we are constantly reminded of the wide range of people who are affected by crimes such as these.
You are now 22 years of age, these events having occurred shortly before your 21st birthday. You were born in Turkey and came to Australia in 1996. You have no prior convictions or any previous contact with the police. You are the only son of hardworking Turkish parents and you live at home. You were the owner of that house. You were studying in the science faculty at Swinburne University. Since 2008 you had run a successful cleaning business.
Your family had returned to Turkey in 1999, came back to Australia in either 2002 or 2003. In 2004, they returned to Turkey and came back to Australia in 2007. It is not entirely surprising that you have difficulty with your cultural identity but have done well both in your studies and business despite that. You do have a sense of not being accepted in either community.
On the plea, reports were tendered from Dr Anthony Cidoni and Mr Patrick Newton as well as a reference from Dr Salih Yucel.
Dr Yucel is a lecturer in Islamic studies at Monash University. He runs weekly seminars for youths in Dandenong. Not long after your family returned to Australia, he came in contact with you, and in 2009 you started attending your seminars and gave assistance with serving food and drink and other matters. You attended most weeks. You assisted others, and he speaks well of you. He was very surprised to see you involved in an offence of this kind, and you have offered to assist him with youth work upon your release.
Dr Cidoni is a forensic psychiatrist who, in his report dated 27 June 2011, said under the heading ‘Opinion and Recommendations’:
1. Mr Sengoz is a 21 year old gentleman who has a history of some depressive symptoms, which fit the pattern of a major depressive disorder occurring for approximately 6 or 7 months prior to the offence. There is no evidence of psychosis. Mr Sengoz’s beliefs about Mr Harper do not appear delusional, and there are no other signs suggestive of psychosis. He also suffered from problem gambling.
2. Mr Sengoz has some ongoing depressive symptoms and it is important that he is reviewed in prison for consideration of antidepressant medication as well as supportive counselling. It is also important that Mr Sengoz have psychological input to assist him to work through his sexuality issues.
3. It appears that Mr Sengoz had significant stressors including his fear of Mr Harper revealing his sexuality to his family and what he described as blackmail in relation to a video recording. I believe this was a significant factor in the development of the depressive illness, and the subsequent offending.
4. The offending appears to have occurred in the context of a troubled, depressed man, struggling to cope with life, struggling to come to terms with his sexuality, facing the possibility of his family finding out that he was gay, and under the pressure of blackmail and needing to raise considerable funds.
5. Despite this, in terms of a mental impairment defence, I do not find that Mr Sengoz was suffering from the level of mental disturbance required that would have impaired his ability to know the nature and wrongfulness of his actions and as such I find that it would be very unlikely to succeed.
6. Nevertheless, it would be very important for the Court to consider Mr Sengoz’s absence of priors, the absence of a major personality disorder or substance dependence problem, his history of tertiary education and the very particular circumstances surrounding the offending, particularly the pressure he felt from a much older and more powerful man.
7. Mr Sengoz’s chances of rehabilitation are very good and the risk of reoffending, particularly given the unusual background of the offending, is low.
Mr Newton, who is a forensic psychologist, in his report dated 20 August 2011, said under the heading ‘Opinion’:
Mr Sengoz is currently suffering residual symptoms of depression which cause him ongoing distress. He is being treated with antidepressant medication and has found this to be of assistance.
Mr Sengoz’s reported symptoms are sufficiently severe to warrant the diagnosis of a “Major Depressive Disorder in Partial Remission”. There is a need for ongoing professional assistance.
Mr Sengoz’s personality adjustment is profoundly disturbed. He is fundamentally conflicted about his sense of identity. This confusion extends to encompass his cultural, sexual and personal identity and pervades his interactions with others. Mr Sengoz is unclear about his sense of direction in life, he has little sense of purpose and he feels undecided about his views on major life issues. His self-esteem is poor and his social skills are surprisingly deficient for an individual of his general intelligence.
Mr Sengoz is at some risk for developing a personality disorder (most likely of the ‘Borderline’ type) if he does not resolve these conflicting elements within his personality in a pro-social and adaptive manner. He does not, however, currently meet diagnostic criteria for any personality disorder per se.
Mr Sengoz’s thought processes are free from disorder. He is not psychotic, and both his reality testing and moral reasoning are intact. Mr Sengoz I estimated to be of high-average intelligence. There is no evidence that he has suffered any defect in his capacity to appreciate the nature and quality of his actions.
Mr Sengoz has engaged in bouts of binge drinking wherein he has consumed quantities well in excess of the amount considered hazardous to his mental and physical health. His drinking was particularly intense during the period of his relationship with Mr Harper and he would have met the DSM-IV criteria of ‘Alcohol Abuse’ during that time. He was clear, however, that he had not been affected by alcohol at the time of the murder. He is currently abstinent from alcohol.
Mr Sengoz also engaged in problematic gambling which was characterised by compulsion and entailed a range of negative consequences which he felt powerless to prevent. Based on his report his gambling behaviour would have been sufficient to warrant the diagnosis of ‘Pathological Gambling’.
And then under the heading of ‘Concluding Comments’ Mr Newton said:
It is acknowledged that Mr Sengoz is likely to face a lengthy term of imprisonment for these matters. This, combined with his intense multifaceted nature of the problems he is facing, means that his prognosis must be guarded. In particular, I am concerned that his pre-existing depression and the broader issues of his sexuality, combined with his immaturity, youth and dysfunctional personality will unite to make him a particularly vulnerable prisoner within the adult system. This is not only because he is likely to experience an especially challenging time in custody, but he has relatively few personal coping resources with which to address these challenges and so would be expected to require relatively intense intervention if he is to do so. Moreover, whilst his problematic drinking and gambling are currently contained on account of his incarceration, his insight into both conditions remains limited and it is recommended that he participate in education and treatment to address them at an appropriate time.
Ultimately, much will depend on how Mr Sengoz utilises his time in custody and the influences to which he is subject and the circumstances which apply once he is released. While he is an intelligent man and notwithstanding the continued support of his family, even in optimal circumstances I consider it likely that Mr Sengoz would experience deterioration in his mental state over the course of time in custody, and the prognosis regarding his long-term personality development within a custodial context is guarded at best. Nevertheless, at the risk of stating the obvious, the more Mr Sengoz can be encourage to maintain positive connections to the mainstream community, the more negative influence can be contained, the more he can participate in pro-social activities, and the more he can be provided with a context to ease his transition to the community after his release, the more optimistic I would be that he would deal with this challenges to continue to engage productively in mainstream society.
It is recognised that as a matter of disposition, it is entirely at the Court’s discretion and the matters beyond the scope of a psychological report will be of relevance. In light of the intensity of the rehabilitative challenges ahead of him, and considering the potential benefit of having these addressed in a supervised context, it would be, in my respectful submission, that there be some merit in considering a relatively lengthy period of supervision in the community as part of the total disposition in Mr Sengoz’s case.
The question to be addressed in your case is what affect the psychiatric and psychological evidence is to have on sentence.
A number of matters, such as your youth and immaturity, are, in any event, quite important to sentencing.
The issue is, can it be said here that there is anything in the material filed which could reduce your moral culpability? I accept that, if it were not for your make-up, you would not have offended in the way you have, but I do not see how it can reduce your moral culpability. It does go to explain in part why you offended. The element of preplanning, which I will set out also in a moment, militates against a reduction of your moral culpability. Neither Dr Cidoni or Mr Newton dealt with that aspect of the case.
I am satisfied, and it was conceded by the prosecution, that the matters set out in the reports do mean that your sentence will be more onerous on you than on others, and I have reduced your sentence accordingly.
You are relatively young and quite immature. I accept that you are remorseful and that your prospects of rehabilitation are good. I have taken those matters into account.
You pleaded guilty at a very early stage and that is an important consideration.
The circumstances of the killing are serious. I am satisfied beyond reasonable doubt that you did take the knife with you and probably a change of clothes.
I am also satisfied that you intended to take Mr Harper's car and, if necessary, by force. I am not satisfied that you intended to kill him to do so. That seems to me to follow from the way in which you took your friends into your confidence about the enterprise and, in a sense, was not supported by the very frenzied nature of your attack. It would also seems to follow that any suggestion that you would buy the car, as said to your friends, was not supported by your available finances and also the likelihood of your financial difficulty following gambling.
It also follows, apart from the planning of the offence, that the cover-up of the offence was quite sophisticated; the changing of clothes, the sending of various text messages, and so on, showed that there was some thought into covering your tracks.
On the plea, any notion that Mr Harper was a blackmailer was disavowed, so the comments appearing in Dr Cidoni’s report about the affect that that proposition might have had upon you have to be read down at least to that extent.
It was argued by Mr Hill QC, who appeared with Mr Robertson on your behalf, that I should impose a lower than usual sentence before you would be eligible for parole. He set out on the plea various murder sentences over the period 2005 to 2008 for both head sentences and non-parole periods. Without knowing about the cases in detail, such cases are of little utility except in the broadest way, and I have had regard to them in that way.
It is my intention to impose a period of three and a half years as the period that you would be on parole. I fix that period as being sufficient, both in your interest and in the interest of the community. If you had pleaded not guilty because of the very significant increase in the head sentence, I would have imposed a longer period on parole.
I regard the period of three and a half years as being quite sufficient to satisfy the recommendation made by Mr Newton in his report.
I have regard to all the matters put on your behalf coming to both the head sentence and the non-parole period and, in particular, your youth.
I am obliged to have regard to just punishment and both general and specific deterrence and I have done so. I do not regard the questions of deterrence in either category to be reduced as a result of any mental illness which you might have.
For the offence of murder, you are sentenced to be imprisoned for eighteen years and six months, and I fix a period of 15 years before you are eligible for parole.
I declare that you have served 486 days by way of pre-sentence detention.
I state that, pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of 22 years and fixed a non-parole period of 18 years.
I order that the above declaration and the statement just made be entered in the records of the Court.
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