R v Teeken
[2000] VSC 295
•16 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1481 of 1999
| THE QUEEN |
| v. |
| CORNELIS TEEKEN |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 16 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 295 | |
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CATCHWORDS: Manslaughter – Provocation – Elderly prisoner – R. v. Bazley (1993) 65 A.Crim.R. 154.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R. Elston | Office of Public Prosecutions |
| For the Accused | Mr. D. Wraith | Victoria Legal Aid |
HIS HONOUR:
Cornelis David Teeken, the jury empanelled upon the trial at which you were presented on a count that at West Sunshine in the State of Victoria on 27 April 1999 you murdered Hasan Ali Tutumlu, returned a verdict of not guilty of that crime but guilty of the alternative offence of manslaughter. I am satisfied beyond reasonable doubt that what that verdict represents in the context of this matter is a finding by the jury that whilst they decided that you deliberately killed the deceased, they could not exclude according to the criminal standard of proof the reasonable possibility that you acted under provocation.
I note and take into account in your favour that you have no criminal history of any kind and I accept that you have hitherto conducted yourself as a person of generally good character.
The background to and circumstances surrounding the commission of your offence have been canvassed in the course of the trial and need only be set out in a relatively brief form at this stage. On the evening of 27 April 1999 you were present in the kitchen of your West Sunshine home in the company of your wife Bernadette, your youngest daughter Michelle, then aged three, and the deceased. You were discussing the implications of a legal separation with your wife when she raised the possibility of divorce so that she could marry Mr Tutumlu. You became very upset. An argument then took place between the deceased and yourself in the course of which you claim that he said, "If you don't give in, right, we go through the court and you end up with nothing at all. We put you on the street and I destroy you". You stated in evidence that you had never been so angry in your life and that you lost control of yourself. You rose immediately from the chair on which you were seated and went to your bedroom where you kept a .22 rifle. I am satisfied beyond reasonable doubt that contrary to your assertion in this court, which I should add conflicts with the version that you initially provided to the police, you then loaded the weapon. You returned to the kitchen where Mr Tutumlu was still seated at the table. Standing only a few metres from your victim you fired a single shot from the rifle which struck him in the temple. Not surprisingly, your wife immediately ran from the house to seek assistance. You unloaded the rifle, attempted to assure neighbours who attended that there was no further danger, called the police to notify them of what had occurred and collected some items of jewellery and personal papers from the premises for safe keeping. You were, I accept, upset and continued to argue with your wife, but from a point of time very shortly after the shooting you demonstrated a capacity for clear thought and directed action. I am of the view that the loss of control, which the jury accepted that you may have experienced, was of short duration and partial. Mr Tutumlu died from the gun shot wound within a short time.
Although I doubt that you were honest in your answers with respect to a number of matters canvassed in the interview which was subsequently conducted by investigating police members, I think that it would be reasonable to state that you were generally cooperative and provided a version that in large measure has been supported by your wife in her evidence.
Although it appears that until this evening the relationship between yourself and the victim was superficially quite amicable, I have little doubt that you harboured considerable resentment towards him. You had met Mr Tutumlu earlier that month when he had brought his daughter to your home to play with your children. At that stage you were unaware that your wife and he had developed a relationship that had continued for approximately three months. This fact was not made known to you until 11 April when, after returning from a holiday with the deceased, his two children and your children, your wife told you that she was in love with another man and that she was leaving you to live with him. You had been led to believe that she was spending a few days at Ararat with the children whilst you were engaged in some home improvement work. I accept that you were quite relaxed about that trip and confident in the strength and character of your relationship with your wife. Although she denied, and probably correctly, although I do not consider that this aspect assumes much significance at this stage, that the two of you engaged in sexual activity on the night before she left, Bernadette Teeken agreed in her evidence that she rang you each night assuring you of her love. I have no doubt that the disclosure of the affair came as a complete surprise and accept that its impact must have been profound. However, you appear to have made a serious attempt to deal with the situation appropriately, in spite of the anger and jealousy that you undoubtedly experienced.
You demonstrated this approach over the course of the next few weeks during which Mr Tutumlu regularly visited your home with Bernadette and the children. Your families often ate meals together and he assisted you in the construction of a pergola, along with other jobs such as painting and concreting. Some of your neighbours gave evidence during the course of your trial that they had observed you working and talking together. They did not detect any sign of trouble between the two of you. I accept that you still held some hopes that your wife would return to you and she, in turn, appears to have been concerned not to sever all connections. She asked for and you supplied her with various sums of money. It appears that you felt exploited but were at a loss to know how otherwise to ensure your children's welfare and to avoid an irreversible split.
However, during this time there was a great deal of tension developing between the three of you, most of which appears to have manifested itself in discussions about money. You argued over the price of a car that your wife purchased and for which you paid, albeit on the understanding that she would in due course make full repayment. You were angry that you felt obliged to pay for the provision of beds, matresses and bedding, not only for your own children, but also those of the deceased. You were understandably insulted by a proposal advanced by Mr Tutumlu in relation to the purchase of property at Wallace where you might all be able to live together. You had earlier discussed with your wife the possibility of the construction of a large two storey "dream" home on that land and had made inquiries about its purchase price. The proposal of Mr Tutumlu involved the sale of the homes of the deceased and yourself. It was contemplated that the double storey home of which you dreamed would be built, but occupied by the deceased, your wife and your children while you were to share a smaller unit with the deceased's brother. You had your wife sign an agreement which stated, among other things, that she was to pay back the money advanced for the purchase of the car, not make any claims on the matrimonial home, and return a Mastercard with a credit limit of $6,000 which you could have been called upon to honour. You were extremely anxious to ensure that she was not able to gain access to your assets, not, I should add, without good reason, as there are clear indications that the deceased and your wife were both prepared to exploit your eagerness to effect compromises with them.
As I have indicated, there can be no doubt that you were extremely upset that your wife had left you. More than one person who knew you well stated in evidence that in the weeks leading up to Mr Tutumlu's death you were very depressed. You were concerned that you would loose not only your relationship with Bernadette, but also continual close contact with your children. You were apprehensive that your wife would take all of your money and that they would have you ejected from the family home, leaving you with no where to go, and you were worried as increasing demands were placed on you that the assets that you anticipated leaving for your children would be dissipated. I think that it is reasonable to assume that these possibilities would have been even harder to bear, perceiving as you did that everything that you valued would be lost to support the lifestyle of your wife who you considered had egregiously wronged you and that of a lover who you felt was not even looking after his own children properly.
In your tape recorded interview you told the police that at the moment that you rose from where you were seated in the kitchen and went to get the rifle, you wanted to kill the deceased. You described yourself as feeling "real crazy". You claimed that this state and thought only emerged, however, after Mr Tutumlu said that he would take everything from you.
However, Bernadette Teeken gave evidence, which I accept, that on the day on which you left the matrimonial home you said to her that she could return to the house but she was not to bring the deceased there or you would "kill him for sure". Your daughter Monica told the court, in a quite convincing fashion, that approximately one week prior to the shooting you said to her that you were going to do something bad to her mother and her boyfriend. In his evidence, a witness and mutual friend, Mr Michaelides, stated that on 24 April 1999, only three days prior to the incident, you said to him that if the deceased or Bernadette asked for any more money you would shoot the both of them.
Significantly, on the day before you killed Mr Tutumlu you had finished writing a six page letter titled "Why a man like to kill his wife and lover". I am confident that on the basis of these pieces of evidence, in your state of high emotional distress, the thought of killing your wife and her lover passed through your mind more than once in the periods between the disclosure of the affair and the killing of the deceased. This finding is not, in my opinion, inconsistent with the jury verdict which was based upon your state of mind at the time that the fatal shot was fired.
The crime of manslaughter, which you committed, can arise in different ways under our law and there are different formulations of it to encompass the range of situations in which it will be perceived as having been committed. Each formulation involves the unlawful killing of another human being. As indicated at the outset of these remarks, in your case, for practical purposes, only a single issue was presented for consideration by the jury and that was the applicability of the concept of provocation in the circumstances. Accordingly, you must be sentenced on the basis of the crime of manslaughter so formulated.
A sentencing judge must, when dealing with a situation such as this, reflect the repudiation of the community of the resort to violence to resolve personal issues. This is of particular significance in situations where a relationship break down is involved. There has, after all, been a whole system of law and an entire court structure put in place in our society for the precise purpose of dealing with such problems. Regrettably, judges in the criminal division of this court are regularly confronted with perpetrators, almost always male, who, unable to come to terms with relationship break down or rejection, give vent to their anger and frustration, often in circumstances of some loss of self control, and commit the irrevocable act of taking the life of another, frequently their former partners, sometimes their children, and sometimes those associated with them. Although the law, conceding the reality of human frailty in situations such as that presently under consideration, treats the killing as manslaughter, rather than murder, it does not follow, nor should it, that the unlawful and deliberate taking of a human life should not be viewed as a matter of the utmost seriousness. In your case it must not be forgotten that you made a decision to kill the deceased, you rose from your seated position, went to a nearby bedroom where you knew a weapon was located, loaded it and returned to a position only a few metres from your victim from which you deliberately fired a bullet into his head. The courts must through the sentences that they impose for conduct of this kind not only reflect a recognition of the significance of the destruction of human life and make it perfectly clear that in this society the employment of unlawful violence will not be tolerated, but must also endeavour to deter those who may be so minded from engaging in the kind of behaviour in which you engaged.
Nevertheless, it is necessary to have regard to a variety of other matters when attempting to arrive at the proper sentence to be imposed. Each case and each offender must be viewed in the light cast by all of the circumstances relevant to the specific situation and the person before the court.
Your level of personal culpability must be assessed against the background that at the age of 78 you were faced with a situation in which you perceived yourself as having lost your wife, your children, and you were worried that you might loose other things that were understandably of great significance to you as an elderly person and a parent - your sense of financial and personal security and the ability to make some financial provision for your children. In the period following the disclosure by your wife of the affair with the deceased and her decision to leave, you experienced a mixture of emotions, including depression, resentment, betrayal, jealousy and fear of loss, until finally on 27 April you lost self control and in part, as a consequence of his own conduct and statements, killed the man who you believed was trying to "destroy" you. Although the stage had been set and the potential for violent action on your part evident for some time, the jury has found that you acted spontaneously, and clearly that is a significant sentencing consideration.
I now turn to your personal circumstances and background. You are now aged 79 years, having been born on 10 May 1921 in The Hague, in Holland. You married in 1940 and subsequently had four children, only one of whom has maintained any contact with you. The reason for this, somewhat ironically in the present context, appears to be their perception of the way in which you dealt with the break down of your first marriage. It seems that whilst your wife was in hospital, you stripped the then matrimonial home of its contents and left. After leaving school you trained as a boilermaker/welder and worked in that capacity until 1939 when you joined the army. You served in Holland, France and England during the war, receiving two awards for bravery on active service. You later worked as a military policeman for a short period before starting your own business as a boilermaker/welder. In 1964 your family migrated to Australia where you continued to work as a boilermaker. As mentioned above, after 42 years of marriage you separated from your wife in 1982 and later divorced. Very shortly afterwards you developed a relationship with a woman you had met in Indonesia and which continued until 1989. You then returned to Indonesia some months later where you met your wife Bernadette. At the time you were aged 69 and she was 21. You married in Indonesia in March 1990 and lived there for a short time until your wife's visa application was approved. You returned with her to live in Australia, residing in a car wrecking yard in Sunshine where you were the caretaker for about five years. In 1994 you purchased and moved into your own home in West Sunshine. Three children were born of the marriage, Monica, now aged 9, Claudia, 6, and Michelle, 4. There is nothing in the evidence which suggests that the marriage was an unhappy one for either of you or that there was not genuine affection between you, although there are indications that in its latter stages your wife, perhaps not surprisingly in view of the vast age difference between you, expressed dissatisfaction about her continued commitment to "an old man".
I suspect that the situation may have been aggravated by the onset that you experienced over the last five years of medical problems. In 1996 you had surgery to repair a ruptured abdominal aneurism and suffered a near fatal complication. You later underwent surgery to repair a left inguinal hernia and, more recently, you have undergone further surgery to alleviate a bowel obstruction. You are presently on medication for cardio-vascular disease, high blood pressure and chronic obstruction of the airways. Your treating doctor, Dr Sleaby, was guarded in his assessment of your prognosis and as your counsel, Mr Wraith, indicated in the course of the plea advanced on your behalf, you have a limited life expectancy as a result of your age and these various medical conditions.
It is evident that you have been a hard working individual throughout your life and you are held in high regard by a number of the witnesses who gave evidence in the trial and who know you well. I accept that you were deeply committed to the welfare and advancement of your young children and there is no reason to suppose that you would ever come before a criminal court again. Obviously all of these considerations must be taken into account in your favour when attempting to fix an appropriate sentence.
Nevertheless, the simple and irrevocable fact remains that you have unlawfully taken the life of another man, leaving a deep sense of hurt and loss for his family which is evident in the various statements that I have read. His loss has also greatly impacted upon your wife and children who had in the short time that they knew Mr Tutumlu developed some affection for him.
I am prepared to take into account in your favour the fact that you have expressed a measure of regret and remorse for your crime. I am familiar with and have had regard to the range of sentences that have been imposed by this court over recent years in respect of similar crimes, bearing in mind that each case must be considered in the light cast by its own particular circumstances including, as I earlier stated, those of the individual offender.
I have, in attempting to fix an appropriate sentence, had regard to the importance of your age as well as the practical consequence of any sentence that is imposed upon you. This is a difficult task for a sentencing judge. On the one hand, a sentence has to be imposed which reflects the seriousness of the conduct in which you engaged and is otherwise appropriate in all of the circumstances. On the other, it is necessary to bear in mind that any lengthy term of imprisonment could effectively amount to a life sentence. I am also mindful of the comments made by the Court of Appeal in R. v. Bazley (1993) 65 A.Crim.R. 154 where it was said that:
"… the age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence."
and further:
"… however, we think it would be wrong to approach the question as to the selection of an appropriate minimum term on the basis that there was a need to 'guarantee', as it were, some measure of life after release."
In my view, some mitigation of the sentence is required in your case as a consequence of the impact of imprisonment upon a person of your age and state of health, and, accordingly, the sentence at which I have arrived is significantly less than it otherwise would have been.
I consider that the appropriate sentence in your case is one of imprisonment for a period of five years and I fix a non-parole period of three years. I declare that the period of 124 days that you have undergone as pre-sentence detention is to be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the court.
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