R v Torun

[2014] VSC 146

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0193

THE QUEEN
v
MEHMET TORUN	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March & 2 April 2014
DATE OF SENTENCE:	4 April 2014
CASE MAY BE CITED AS:	R v Torun
MEDIUM NEUTRAL CITATION:	[2014] VSC 146

---

CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Accused aged 24 shot girlfriend of same age in groin with sawn-off shotgun – Loaded gun pointed at deceased and trigger pulled deliberately – Crown accepts that accused, because of his drug-addled state, failed to remember he had loaded the gun earlier – Deceased suffered very serious internal injuries and died five days later – Accused sought to assist deceased and take her to hospital – Early plea of guilty – Remorse – Limited prior convictions – Good prospects of rehabilitation – Sentence of eight years’ imprisonment with a non-parole period of five years – But for plea of guilty, sentence of eleven years’ imprisonment with a non-parole period of eight years and six months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC	Office of Public Prosecutions
For the Accused	Mr N Hutton	Camerons Lawyers

HIS HONOUR:

Introduction

1. Mehmet Torun has pleaded guilty to the manslaughter of Kara Doyle.  On 17 April 2013, Ms Doyle was shot in the groin with a sawn-off shot-gun held by Mr Torun.  The resulting injuries caused her death five days later.

1. The Director of Public Prosecutions originally filed an indictment in this Court charging murder.  On 7 February 2014, however, the Director withdrew the charge of murder by filing over a new indictment charging manslaughter.  Mr Torun pleaded guilty and the matter was adjourned for a plea in mitigation.

Summary of facts

Summary of Prosecution Opening

1. Mr Rose SC, who appeared on behalf of the Director on the plea, tendered a written Summary of Prosecution Opening (Exhibit 1), which he also read to the Court.  Since it is a very long summary, I shall append it to these reasons rather than reproduce it in the body of this document.

1. Mr Hutton, who appeared on behalf of Mr Torun on the plea, indicated that none of the facts alleged in the summary were disputed.  He added some further information in the course of the plea, some of which I shall incorporate into my summary of the facts.

1. In short, the facts giving rise to the offence are as follows:

Relationship between accused and deceased

1. At the time of the shooting, Ms Doyle was aged 24.  She had grown up in rural Victoria and New South Wales.  In early-2012, she moved from Cobram to Melbourne to work as a book-keeper at an accounting firm in Parkville.  Ms Doyle rented a house with her sister Chloe Doyle in Military Road, Avondale Heights.

1. Mr Torun was also aged 24 at the time of the shooting.  He had grown up in Shepparton and surrounding areas.  He had worked in various jobs, including driving heavy machinery in road-building in Queensland.

1. Ms Doyle met Mr Torun when she was holidaying in Queensland in October 2012.  They commenced a relationship almost immediately.  Mr Torun was living with his parents in Shepparton but increasingly came to stay with Ms Doyle in Avondale Heights.

1. The relationship between Ms Doyle and Mr Torun was characterized by volatile arguments, sometimes followed by short-lived break-ups, a good deal of illegal drug use and increasingly erratic behaviour by Mr Torun.  There is some evidence of physical violence by Mr Torun towards Ms Doyle – including an occasion when he grabbed her by the throat and another where he threatened her with a blow torch.  But, in addition to his erratic and threatening behaviour, a major feature of the relationship appears to have been Mr Torun’s attempt at controlling behaviour.  Mr Hutton pointed to evidence which tended to suggest that such attempts at control were futile, as Ms Doyle showed she was well capable of ensuring that Mr Torun would pay her some mind whenever she went to leave him.  Mr Hutton also pointed to evidence suggesting an absence of actual violence between them, including the evidence of Chloe Doyle, who said Mr Torun “never laid a hand on” Ms Doyle.

1. It appears that the illegal drug use eventually became so debilitating that Ms Doyle resigned her position with the accounting firm on 21 February 2013 after a history of poor performance and attendance.  Mr Torun was not working either.  Mr Hutton explained that was because Mr Torun had a hand injury at that time.  Instead, he was spending his days frequently taking illegal drugs (in particular, “ice”) and, as time went on, often behaving badly, including threatening people at the drop of a hat.

Mr Torun obtains a gun

1. In early-April 2013, Mr Torun expressed a desire to own a gun.  Earlier, in December 2012, Chloe Doyle had found the barrel of a gun in a washing machine at the Military Road house, which she moved.  Mr Torun later asked her what she had done with the gun barrel.

1. Mr Hutton advised, and there is some support for this in the depositions, that Mr Torun was concerned for the safety of Ms Doyle, given that an associate of his had threatened to harm her.  Such threats also seemed to be part of the milieu in which they existed at the time.  Thus, his desire for a gun.

1. Mr Torun’s wish came true.  A day or so before the shooting, his friend Dylan Corish moved into the house at Military Road.  During the unpacking of Mr Corish’s belongings, Mr Torun noticed among them the sawn-off 12-gauge shot-gun that would ultimately kill Ms Doyle.  The gun was a Stirling brand.  Its serial number had been obliterated by grinding.  Mr Torun took possession of the gun.  He went to great lengths to find the associated ammunition, which was hidden elsewhere in Mr Corish’s car.  Mr Torun then took to playing with or carrying the gun at all times.

Events during the day of the shooting

1. On Wednesday 17 April 2013, in the early part of the day, Mr Torun threatened to blow off an associate’s head with the gun.  Mr Corish became concerned about Mr Torun’s behaviour.  He considered Mr Torun was out of control and dangerous.  When Mr Torun was distracted, Mr Corish hid the gun.  He also tried to disable it.  This included breaking off the handle of the gun completely, so that the butt end stopped at the trigger.  (See the photographs in Exhibit 6.)

1. Subsequently, Mr Torun became enraged at the fact that Ms Doyle had left after an argument.  In a fit of pique, he punched the wall and hurt his hand.  Later, he threatened to “blast” Brittany Pulo’s head off in the course of an argument concerning his affections for her and Ms Doyle.

1. Later still, when Ms Doyle returned to the house, Mr Torun smashed plates over his head and punched the wall during an argument with her.  He demanded the gun.  Mr Corish told him it was in the bin.  That was a well-intentioned lie.  Mr Torun persisted with his demand.  Mr Corish relented and revealed the hiding spot.  Mr Torun regained possession of the gun and ammunition.

1. During the afternoon, neighbours observed Mr Torun to be drug-affected.  He and Ms Doyle argued again.  Ms Doyle was seen carrying two backpacks and a pillow as Mr Torun forced her through the door of the house.  She walked to a bus stop but Mr Torun eventually followed her.  After some discussion, they both returned to the house.  Mr Torun continued to yell.

1. When Mr Torun left the house briefly, Mr Corish hid the gun again.  Later, after becoming angry yet again, Mr Torun again demanded the gun and shells be produced.  He screamed out that he wanted to “kill her” and then made a threatening phone call to someone.

1. Sadly, Mr Torun came into possession of the gun again.  Mr Corish saw him pointing it at people and threatening to shoot them.

The shooting

1. At around 9:30 p.m., Kara Doyle was in the lounge-room of her home.  Also present in the room were Mr Torun, his friend Baki Unlu and Mr Unlu’s girlfriend Kirsten Smith.  Mr Corish was elsewhere in or about the house.

1. Mr Torun had the gun.  Whilst seated on the couch, Ms Doyle was shot in the groin with the gun when held by Mr Torun less than a metre away.

1. There was a dispute on the plea as to the precise circumstances of the shooting.  Both Ms Smith and Mr Unlu witnessed the event.  Each provided a statement to police and each was cross-examined at the committal hearing in the Magistrates’ Court.  The prosecution case, which was based on principally on Ms Smith’s account but also on other evidence in the depositions, was this:

a)   First, in the moments before the gun discharged, Mr Torun was waving the gun around and telling a story.

b)     Secondly, immediately before the gun discharged, he said something like, “And I told you, man, the gun had no bullets in it”.

c)   Thirdly, at that moment, Mr Torun, whilst standing, held the gun with both hands and pointed it at Ms Doyle at very close range.

d)     Fourthly, Mr Torun then pulled the trigger deliberately, which caused the gun to discharge.

e)   Fifthly, the shot discharged into Ms Doyle’s groin whilst she was seated on the couch holding a “crack pipe”.

f)   Sixthly, Mr Torun had loaded the gun earlier.  His DNA was found on a cartridge inside the barrel of the gun.

g)     Seventhly, however, the prosecution accepts that, because of Mr Torun’s drug-addled state at the time of the shooting, he failed to recall that the gun was loaded.  Mr Rose advised that that concession was the basis on which the Director was prepared to settle the matter as a charge of manslaughter.

1. The defence case, which was based principally on Mr Unlu’s account, differed only as to the third and fourth points just made.  In particular, Mr Hutton submitted that the equivalent of the third step in the chain of events is that Mr Torun, whilst telling his story, had his back to Ms Doyle and somehow swung the gun up onto his shoulder so that it was pointing behind him and, unknowingly, towards Ms Doyle.  Then, the equivalent of the fourth step is that, during that motion, the gun accidentally discharged, perhaps because Mr Torun unintentionally depressed the trigger.  This version was supported by Mr Torun’s account to a psychologist whose report was tendered on the plea.  Mr Hutton also submitted that, even if the version given by Ms Smith were accepted, I should not be satisfied that the trigger was pulled deliberately.  Instead, he submitted, whilst such a conclusion was open, nevertheless, I should come to the view that I was unable to exclude the reasonable possibility that the trigger was pulled accidentally.  Mr Hutton also properly conceded, however, first, that there was undisputed evidence that the trigger pull on the shot-gun measured 5.57 kilograms, which is above the normal limit – which means that more than usual pressure is required to discharge the gun – and, secondly, that the only manner in which the firearms expert was able to discharge the gun was by applying pressure to the trigger.

1. Having heard the submissions of counsel and having read the depositions and other materials, I am satisfied beyond reasonable doubt that the prosecution position should be preferred.  Whilst I shall not rehearse it here, neither the medical evidence nor the gunshot residue evidence was of assistance to me in coming to that conclusion.  In my view, Ms Smith’s account has the ring of truth and accuracy about it.  Mr Unlu’s does not; indeed, it strikes me as fanciful.  Further, on the question whether the trigger was pulled deliberately, I accept Mr Hutton’s submission that that is a matter of inference.  However, I am satisfied that a deliberate pulling of the trigger is the only reasonable inference to draw on the evidence.  Ms Smith said that, after Mr Torun uttered the words indicating the gun was not loaded, “he shot her point blank”.  Ms Smith also said that, immediately after the shooting, Mr Torun said, “I’ve shot my baby”.  Further, as I have indicated, there was undisputed evidence that the trigger pull on the shot-gun measured above the normal limit and that the only way it could be discharged was in the usual manner.

1. Accordingly, I am satisfied beyond reasonable doubt, and will sentence on the basis, of the following facts:  In the moments before the gun discharged, Mr Torun was waving the gun around and telling a story.  Immediately before the gun discharged, he said something like, “And I told you, man, the gun had no bullets in it”.  At that moment, Mr Torun, whilst standing, held the gun with both hands and pointed it at Ms Doyle at very close range.  Mr Torun then pulled the trigger deliberately, which caused the gun to discharge.  The shot discharged into Ms Doyle’s groin whilst she was seated on the couch holding a “crack pipe”.  Mr Torun had loaded the gun earlier.

1. I also accept the Director’s concession that, because of Mr Torun’s drug-addled state leading up to the shooting, he failed to recall that it was loaded.  Absent that concession, it would be difficult to say that this was anything but a murder.  But the concession is open on the evidence and I shall act on it.

Events after the shooting

1. Immediately after the shooting, Mr Torun went to Ms Doyle’s assistance.  He was crying and saying, “I’ve shot my baby”.  She was screaming out in pain.

1. Ms Smith and Mr Unlu each rang for an ambulance.  Despite the ambulance calls, Mr Torun and Mr Corish, who had by this stage entered the room, decided to take Ms Doyle to hospital themselves.  As both Mr Torun and Mr Corish were not familiar with Melbourne, they initially headed in the wrong direction and got lost.  Eventually, they ended up at a Caltex service station where, on Mr Corish’s account, they stopped because a police station was next door and it was thought that police would know first aid.  Mr Corish went next door, alerted police and an ambulance was called.

1. Ms Doyle was eventually taken by ambulance from the service station to hospital.  The shot caused multiple bowel injuries, a fractured pelvis and massive blood loss resulting in hypovolemic shock.  As a result of those injuries, Ms Doyle suffered from septic shock, acute kidney injury and acute cerebral oedema resulting in brain death.  After multiple surgeries, Ms Doyle died on 22 April 2013, five days after the shooting.  The cause of death was found to be hypoxic ischaemic brain injury, exsanguination and shot-gun injury to the right groin.

1. After ringing the ambulance, Ms Smith and Mr Unlu removed the gun and some drugs from the premises and put them in Ms Smith’s car.  They drove to the service station too.  Whilst there, Ms Smith met a person named Sammy Nesci, who just happened to be there at the time.  Mr Nesci did not know Ms Smith or any of the people who witnessed or were connected with the shooting or its aftermath.  Despite that lack of connection, perhaps inexplicably, he later took the gun from Ms Smith and hid it briefly in his premises, which were nearby.  A short time later, Mr Unlu collected the gun from Mr Nesci.  Subsequently, the gun was found in Ms Smith’s car.  As I have already indicated, forensic testing discovered Mr Torun’s DNA on the cartridge found inside the barrel of the shot-gun.

1. When at the service station, Mr Torun spoke to police.  He lied to them.  He said he did not know who shot Ms Doyle; that he did not see her shot as he was near the laundry when it happened; and that, when he returned to the lounge-room, the gun was with Ms Doyle.  He admitted to arguing with Ms Doyle earlier in the day which caused him to punch a brick wall and a shower screen.

1. Later, Mr Torun was arrested.  In a covertly-recorded conversation, Mr Torun said he heard the shot and ran straight to the lounge where he found Ms Doyle with the shot-gun; that he did not know the shot-gun had been in the house; that, although he and Ms Doyle used to argue, they had not argued this day and were happy, but they had argued about Ms Pulo; and that some of the blood in the house would be his because he had hurt himself earlier when he head-butted the shower screen.  He also said that he could not provide an explanation for how Ms Doyle was shot but suggested she may have shot herself.  The latter remark was both callous and craven.

1. Later that night, Mr Torun was formally interviewed by police.  He exercised his right to make no comment.

Victim impact statements

1. Mr Rose tendered two victim impact statements (Exhibits 2 and 3).

1. The first was from Jenny Doyle, who is the mother of Kara Doyle.  The statement was read to the Court by Mrs Doyle’s brother Greg Crow and Mrs Doyle’s former brother-in-law Chris Doyle.  In her statement, Mrs Doyle asked me to imagine “the worst emotional pain, suffering, anger and depression” I have ever experienced and “multiply that by a hundred”.  That, she said, is how it feels to lose her daughter.  After the funeral, Mrs Doyle received a letter from a university offering her daughter a place in a psychology course.  Not only was it heart-breaking to have to explain to the university why the offer could not be accepted, but the offer also highlighted the tragic loss of what might have been for her daughter.

1. The second victim impact statement was from Nick Doyle, who was Ms Doyle’s step-father.  The statement was read to the Court by Mr Doyle’s brother Chris Doyle.  In his statement, Mr Doyle explained that he had been in Ms Doyle’s life from when she was aged two, when he started a relationship with her mother.  He described Ms Doyle as a happy and friendly child, good at sports and keen to do well in her work.  Mr Doyle, like Mrs Doyle, recounted the horrible experience the family endured when told that Ms Doyle was brain dead and the pain they felt in kissing her goodbye.

1. As well as hearing the victim impact statements read in Court, I have read them again in chambers.  They are moving documents.  I have taken into account their contents in fixing sentence.

Nature and gravity of the offence

1. In this State, manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment (see s 5 of the Crimes Act 1958 (Vic)).

1. The offence is serious, by definition.  A human life has been lost.  When a child pre-deceases his or her parents, it reverses the natural order of things.  Such a death must be all the more unbearable when the child is so young, as Ms Doyle was, and is taken as a result of criminal behaviour.

1. The prosecution case is put as manslaughter by an unlawful and dangerous act.  The act causing death was Mr Torun’s pointing of the gun at Ms Doyle and then deliberately pulling the trigger.  Such behaviour amounts to an assault without any justification or excuse, and is therefore unlawful.  The same act was also dangerous because a reasonable person in the position of Mr Torun would have realized there was an appreciable risk of serious injury in so acting.  No reasonable person should ever point a gun at another, and less still pull the trigger, even if the gun is thought to be unloaded, unless there is a lawful justification or excuse for doing so.  A reasonable person (i.e. one not addled by illegal drug use) in Mr Torun’s position would have remembered that the gun was loaded; would have been careful to check whether it was loaded, particularly when it had been handled and altered by another since he last handled it; would not have handled a gun in a drug-addled state anyway; and would not be so stupid and thoughtless as to point it at another and pull the trigger.

1. Mr Rose submitted that this was a serious example of manslaughter.  Mr Hutton submitted it was a mid-range example.  I have found it difficult to classify.  On the one hand, many more serious instances of manslaughter might be imagined.  For example, in my view, all else being equal, to bash someone repeatedly without lawful justification or excuse but with an intention or recklessness short of that required for murder would be a more serious instance of manslaughter.  Mr Torun’s behaviour did not involve any intended or foreseen actual violence or injury.  As the Director concedes, he failed to remember that the gun was loaded.  On the other hand, Mr Torun’s behaviour was extremely careless, very dangerous and profoundly stupid.  I regard Mr Torun’s culpability as very high.  As someone who has had experience of the proper use of guns with his grand-father, a fact he explained to the psychologist, he should have known better.

1. In the end, in so far as labels matter, I would assess this as falling between the mid-range and serious range of manslaughter, recognizing that there was no intention to shoot or even harm Ms Doyle but that there was nevertheless a very high degree of blameworthiness in Mr Torun’s conduct.

Mitigating factors

1. Balanced against Mr Torun’s offence are the several mitigating factors on which he is entitled to rely.

Plea of guilty

1. First, Mr Torun pleaded guilty to the charge, and indicated an intention to do so, at the earliest practical stage.  He indicated prior to the committal hearing that he would plead guilty to manslaughter.  At the committal hearing, when still facing the murder charge, he pleaded not guilty to murder but guilty to manslaughter.  In this Court, the instant the Director withdrew the murder charge, Mr Torun pleaded guilty to manslaughter.

Remorse

1. Secondly, I am satisfied that Mr Torun is genuinely remorseful for his offence.

1. Initially, I was sceptical of the claim to remorse given Mr Torun’s lies to police and the fact that he suggested Ms Doyle may have died at her own hand.  However, on reflection, I have come to a different view, for several reasons.

1. First, Mr Hutton explained on the plea that Mr Torun’s instructions are that he lied to police so that he might get to the hospital to see Ms Doyle.  Whilst that assertion was not supported by evidence in the usual way, I am prepared to accept that it is true.  Secondly, Mr Torun’s first reaction after the shooting was to express shock at what he had done and to try to assist Ms Doyle.  Thirdly, Mr Torun offered to plead guilty, and did in fact plead guilty, at the earliest practical stage.  Some in his position might have sought to run a trial, even on manslaughter, and argue that the killing was an accident.  Mr Unlu’s account went some way towards such a defence.  Whilst that version may still have amounted to manslaughter, at least by criminal negligence, the answer to that question would have been for a jury to determine.  Fourthly, the character references (Exhibit 8), particularly the one from Melanie Thomas, and the report of psychologist Pamela Matthews (Exhibit 5) attest to appropriate empathy and remorse.  Fifthly, Mr Torun wrote a letter of apology to Ms Doyle’s family (Exhibit 9).  I accept that the apology is genuine.  Of course, as Mr Torun makes clear in the letter, he does not expect forgiveness from Ms Doyle’s family.  Nor should he.

1. In those circumstances, I am prepared to accept that Mr Torun’s suggestion that Ms Doyle died at her own hand, whilst insensitive and cowardly, does not deny his claim to remorse.  It is likely that Mr Torun was in a state of panic at the thought that he might be accused of murder.  People say all sorts of things, even thoughtless and cruel things, when under great pressure, as Mr Torun undoubtedly was at the relevant time.  Self-interest is a powerful thing.  Sometimes, it makes good people do bad things.  In any event, his behaviour, both immediately after the shooting and after he lied to the police and made that remark, satisfies me that Mr Torun is genuinely remorseful.

1. An early plea of guilty that is attended by genuine remorse usually results in a substantial discount on sentence.  Mr Torun’s plea of guilty falls into that category and it shall attract a substantial discount.

Limited prior convictions

1. Thirdly, whilst Mr Torun does have a prior criminal history, it is of very modest proportions, particularly when compared with the offence he committed.  All of his prior appearances have been in the Magistrates’ Court.  He has no prior convictions for violence.  On 22 November 2010, Mr Torun received a suspended sentence for driving whilst disqualified, which seems an unusually heavy sentence for a first offence.  On 29 May 2012, he received fines without conviction for possessing a firearm, a slingshot, shot-gun cartridges, stolen goods and steroids.  The firearm, a “22”, was used for rabbit-shooting.  On 3 December 2012, he received a community correction order for failing a drug test within three hours of driving.  On 2 September 2013, he was convicted and fined for possessing and using drugs, including amphetamine and methylamphetamine, and driving whilst disqualified.  The latter is not a prior conviction but a subsequent conviction for offending engaged in before the shooting.

1. Set against this modest criminal history is the evidence of the way in which Mr Torun was behaving in the period leading up to the offence.  He was volatile, threatening and erratic.  Mr Corish thought Mr Torun’s behaviour with the gun was so dangerous that he hid it from him, twice.  And, each time, unhappily, Mr Torun got hold of the gun again.  I accept that the illegal drugs he was taking contributed to his behaviour.  But the undisputed evidence that he was behaving badly limits the weight that might otherwise be given to the fact that he is a relatively young person with only a very modest criminal history.

1. The fact that illicit drug use was a significant contributing factor to that behaviour also means that important to his prospects of rehabilitation will be his ability to rid himself of such illicit drug use.  On that score, it is a positive start that screens taken from Mr Torun in gaol have all been negative for illicit drugs (see Exhibit 10).

Relative youth

1. Fourthly, Mr Torun was only 24 at the time of the offence and is only 25 now.  Relative youth is a relevant consideration in this case.  I say “relative” youth because it is not as if he were only 18 at the time.  But 24 is still relatively young.  All else being equal, a younger person is less likely to appreciate risk or consider consequences.  In my view, Mr Torun, at 25, is at an age where his values and attitudes are still being formed.  It is of course a pity that he will be developing those values and attitudes for the next several years in gaol, which is hardly the best place for a young person to mature.  But that, of course, is an unavoidable consequence of the nature and gravity of his crime.  He must go to gaol, and for a substantial period.  However, one of the great aims of the criminal law is to rehabilitate younger offenders.  And he is still young enough to persuade me that rehabilitation is an important consideration in his case.

Good prospects of rehabilitation

1. Fifthly, I am satisfied that Mr Torun has good prospects of rehabilitation.

1. There are several reasons.  First, his early plea of guilty, his remorse and his modest criminal history all suggest as much.  Secondly, he had the support of his family in Court and will have their support throughout and beyond his sentence.  Thirdly, at age 25, he is relatively young and there is still time for him to mature, turn his life around and do useful things.  Fourthly, Mr Torun has shown that he can work and contribute to the community.  The courses he has done in prison also show that he is capable of learning and working.  Fifthly, he is fortunate that his father will be able to provide him with work in his business, should it be required, upon his eventual release into the community.  Sixthly, the character references show that Mr Torun is not only capable of working but that he also has other positive traits, such as loyalty and a preparedness to help out others less fortunate.  Seventhly, whilst Mr Torun has had difficulties for some years with drug abuse, he has shown that he will accept and can benefit from drug-related treatment.  I am satisfied that, over the time he spends in custody, there is a likelihood that Mr Torun will be able to rid himself of illicit drug use so that he is well-prepared for reintegration into the community.

Sentencing purposes

1. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

1. In my view, general deterrence, denunciation and just punishment have a significant role to play in the circumstances of this case.  People should understand that behaviour of the type engaged in by Mr Torun is denounced by the courts and will result in punishment that reflects that a life has been taken in culpable circumstances and that the lives of the deceased’s loved ones have been marred forever.

1. Whilst specific deterrence must be given some weight, I have given it less weight than otherwise on account of Mr Torun’s early plea of guilty, remorse, limited prior convictions and good prospects of rehabilitation.

1. I consider it very unlikely that Mr Torun will re-offend in this way.  Given that conclusion, and my view that the weight I have given to general deterrence, denunciation, just punishment and specific deterrence will produce a sentence that protects the community in any event, I can see no need for any weight to be given to protection of the community as a separate or additional sentencing purpose.  If it has any role to play in this case, protection of the community will be better served by the fixing of a sentence that maximizes Mr Torun’s chances of rehabilitation, especially given that he must be returned to the community at the expiry of his sentence in any event.

Parsimony

1. Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.  This provision reflects the common law principle of parsimony.  I have applied this principle when fixing sentence.

Current sentencing practices

1. In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.  In the area of sentencing, it is almost always difficult usefully to compare other cases, but I have received some assistance by considering the sentences, and the reasons for those sentences, imposed by this Court and the Court of Appeal in other cases of manslaughter.

Sentences imposed on co-accused are irrelevant

1. Ms Smith, Mr Unlu and Mr Nesci were all sentenced for offences arising out of the aftermath of the shooting of Ms Doyle.  Ms Smith and Mr Unlu each pleaded guilty before Lasry J to assisting an offender and perjury.  They were sentenced respectively to an undertaking to be of good behaviour and a community corrections order.  Mr Nesci pleaded guilty before me to possession of an unregistered firearm.  He was sentenced to an undertaking to be of good behaviour.  Whilst all three were Mr Torun’s co-accused, their offences were so different from Mr Torun’s offence that the principles of parity have no application.  Accordingly, I have disregarded their sentences.

Sentence

1. In all the circumstances, I have concluded that, for the manslaughter of Kara Doyle, Mr Torun will be sentenced to eight years’ imprisonment with a non-parole period of five years.

1. I have fixed a substantial gap between the head sentence and the non-parole period.  This reflects the additional weight I have given to Mr Torun’s early plea of guilty, his remorse, his relative youth and his prospects of rehabilitation when considering the non-parole period.  The twin aims of fixing such a gap are to encourage Mr Torun to rehabilitate himself and to provide him with effective supervision should he be released on parole.  If those aims are achieved, this should redound to the benefit of the community.

Pre-sentence detention

1. Pursuant to s 18 of the Sentencing Act, I declare that 353 days (including today) be reckoned as already served under this sentence.

Section 6AAA declaration

1. I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Mr Torun’s plea of guilty.

1. Had Mr Torun pleaded not guilty to manslaughter and been found guilty of that offence, it is unlikely that I would have been satisfied he is remorseful.  Further, it is likely that I would have considered his prospects of rehabilitation to be substantially weaker and the need for specific deterrence to be somewhat greater.  In those circumstances, I can declare that, but for his plea of guilty, I would have imposed a sentence in the order of eleven years’ imprisonment with a non-parole period in the order of eight years and six months.

Disposal order

1. Finally, pursuant to s 78(1) of the Confiscation Act 1997 (Vic), I order that the property referred to in the schedule to the draft disposal order be forfeited to the State.

ANNEXURE

Court Reference:          S CR 2013 0193

Indictment No:   D11109118.1/ D11350890.1

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

CRIMINAL JURISDICTION

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

MEHMET BUGRA TORUN

Date of document:

13 March 2014

Filed on behalf of:

The Director of Public Prosecutions

Prepared by:

CRAIG HYLAND

Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne  Vic 3000

Solicitor’s code:   7539
Telephone :   [phone]
Direct:                  9603 7546

Reference:  R. Lewis/ N. Kohn

1. On the 17^th of April 2013, Kara DOYLE was seated on a couch at her home when she was shot by the accused Mehmet TORUN.   TORUN was less than a metre away from DOYLE when he discharged the sawn off shot gun.   The accused together with Dylan CORISH, placed DOYLE in their car and drove to a service station where they asked for assistance.  

2. Paramedics and police arrived to attend to DOYLE before she was taken to the Royal Melbourne Hospital.

3. Kirsten SMITH and Baki UNLU were present when DOYLE was shot.   They took possession of the firearm and drugs belonging to TORUN before leaving the property and attending at the service station.

4. Whilst at the service station, SMITH was approached by the accused Sam NESCI.    SMITH told NESCI what had occurred.  NESCI advised SMITH to move her car as she had possession of the firearm.   After SMITH had moved her car, NESCI invited her to wait for UNLU at his bakery nearby.   SMITH attended at the bakery and whilst there NESCI offered to take possession of the gun and destroy it.   SMITH and UNLU declined the offer.

BACKGROUND
The deceased

5. The deceased was born on the 24^th of September 1988 and was aged 24 years at the time of her death.   The deceased was one of four children. 

6. The deceased spent much of her life in rural Victoria and New South Wales.   In 2012 the deceased moved from Cobram to Melbourne.    The deceased commenced a 12 month lease of a property at 1/10 Military Road, Avondale heights.     The deceased shared the tenancy with her sister Chloe.

7. On the 20^th of February 2012 the deceased commenced employment at The Practice, an accounting firm in Parkville as a bookkeeper.

8. On or about the 8^th of August 2012, the deceased ended her relationship with Joe DIACO.   They had been together for  nearly 3 years.

The Accused
Mehmet TORUN

9. TORUN was born on the 5^th of August 1988.   He was 24 years old at the time of DOYLE’s death.  TORUN grew up in Shepparton and surrounding areas.   At the time of the death he was unemployed.

Relationship evidence and events preceding the murder

10. The deceased took a week of personal leave from the 26^th of October 2012 to the 30^th of October 2012.   The deceased travelled to Queensland with her friend Olivia METE.   During this holiday, the deceased met TORUN.

11. The deceased and TORUN commenced a relationship almost immediately.   Upon their return to Melbourne, TORUN stayed with his parents in Shepparton during the week and stayed with the deceased on weekends.  

12. During the course of the relationship, the deceased was observed to withdraw from friends and family.   Further, the deceased’s drug use escalated which included using ice and Liquid G.   TORUN was a heavy user of ice and Liquid G.

13. In December 2012, the deceased’s former boyfriend, Joe DIACO and friend Molly CORNISH visited the deceased at her property.   Upon seeing DIACO outside, the deceased became concerned and told them to leave as TORUN would kill him.    TORUN came out of the house and was initially friendly until he saw DIACO.   TORUN became angry and told them to leave or he would kill DIACO.

14. DIACO and CORNISH drove to the home of Madeline CORNISH (Molly’s sister).   Before entering the house, they observed TORUN running down the driveway towards them.   DIACO and CORNISH entered the house.   TORUN punched the door numerous times and threatened to kill them and their families.   Whilst this was occurring, the deceased was seated in TORUN’s car.

15. Later that evening, Molly CORNISH spoke to the deceased about what had occurred.   TORUN took the phone from the deceased and told CORNISH she was dead and that he would shoot her and kill DIACO and their families.

16. In December 2012, Chloe DOYLE was in the laundry when she found a gun barrel in the washing machine.   She tossed the gun barrel into the sink.   Later, TORUN asked her where she had put the gun barrel.

17. The drug use, uninvited guests, TORUN’S behaviour and late nights had become too much for Chloe DOYLE.   An example of the behaviour was captured by Chloe DOYLE recording TORUN threatening her.   Jenny DOYLE, the deceased’s mother, confronted the deceased about some of this behaviour however it was TORUN who ultimately responded to these concerns in an aggressive manner.    In late December 2012, Chloe DOYLE moved out of the Military Road address.     

18. By March 2013, the family could only contact the deceased via TORUN’S phone.   Contact with the deceased was less frequent and often involved requests by the deceased for financial assistance.

19. By early 2013 TORUN was living with the deceased.   At times, the relationship between them was strained.    They were observed to argue frequently and it appeared as though TORUN exercised significant control over the deceased.   TORUN was easily angered when affected by drugs.  

20. Michael BONCALDO briefly lived with the deceased and TORUN until the 2^nd of April.   He observed their drug use and constant arguing.    During one such fight the deceased had asked TORUN to leave and police attended.   BONCALDO observed TORUN to be an angry person who would lash out at objects.    Further, TORUN expressed a desire to own a gun.

21. Brittany PULO observed the deceased and TORUN argue.  On one occasion the deceased wanted to leave but TORUN would refuse to let her go.   The deceased called police but ultimately cancelled the request for police attendance after further arguing with TORUN.    The deceased told PULO she did not want to live in the house.  As PULO and the deceased were leaving, TORUN threatened the deceased.   Once away from the property, Kirsten SMITH and the deceased arranged to spend the night in a hotel to be away from TORUN.

22. SMITH observed TORUN to behave in a physically aggressive manner towards the deceased and others.   She observed TORUN to throw things at the deceased and on one occasion threaten her whilst holding knives to her throat.   SMITH observed TORUN to use a Taser on people who wouldn’t listen to him.

23. On the 18^th of February 2013 the deceased contacted Melanie RUSHBY via Facebook asking for somewhere to stay.   The deceased rang RUSHBY in a distressed state and they arranged to meet in Shepparton.   RUSHBY collected the deceased from a service station and was concerned about her appearance.   The deceased disclosed that she had argued with TORUN earlier that day and that he had grabbed her by the throat.     The deceased then qualified that statement and stated they would push each other during arguments but that TORUN had never physically punched her.    The deceased further disclosed the extent of their drug use.   The deceased stated she was scared of the lifestyle that she was around, namely the drug trafficking and that there were guns in the house.   Some hours later, the deceased and TORUN had resolved their differences.

24. On the 21^st of February 2013 the deceased resigned from her position at The Practice after a history of poor performance and attendance.

25. On the 7^th of March 2013 the deceased contacted Katherine MURRAY via Facebook and advised that she was having problems with her boyfriend and wanted to leave but felt stuck and couldn’t leave because he owed her money.   The deceased stated her boyfriend had threatened her with a blow torch.   MURRAY arranged to meet the deceased the following day however MURRAY didn’t confirm the plans.

26. On the 9^th of March 2013 the deceased contacted MURRAY and asked if she could live with her for a couple of weeks as she wanted to get away from the relationship.   MURRAY did not respond to this request.

27. In late March or early April SMITH observed TORUN to make enquiries about obtaining a gun.

28. Dylan CORISH was an old associate of TORUN’S.   CORISH moved in to the property at Military Road on or about the 16^th of April 2013.   Whilst moving his belongings into the house, TORUN saw a 12 gauge sawn-off shotgun that belonged to CORISH.   TORUN immediately took possession of the gun.  The ammunition, two cartridges, was hidden in the car.   TORUN went to great lengths to retrieve the ammunition.  The gun and ammunition remained in TORUN’S possession.   TOROUN would play with the gun or carry it on his person at all times.

29. On the 17^th of April 2013 at 12:27 am TORUN contacted Brittany PULO and propositioned her for sex.     At 1:17 am PULO sent the deceased a message via Facebook advising her to leave TORUN.  The deceased asked to be picked up but PULO was unable to assist.

30. At 2:20 am the deceased contacted Lauren MCCORNACK via Facebook and asked if she could be picked up and stay with her for a couple of nights as her boyfriend was cheating on her.   MCCORNACK was asleep at the time the message was sent and responded some hours late but did not hear from the deceased. 

31. At 2:30 am the deceased contacted Kirsten SMITH via text message and Facebook asking to be collected.   She sent a further message at 5:30 am making the same request.  SMITH did not respond until later in the morning as she was asleep.   SMITH contacted UNLU and was advised that the deceased was missing.   TORUN spoke to SMITH during this call but as they were talking, the deceased returned home.

32. CORISH had been out with TORUN earlier in the night to collect hard rubbish and observed him to behave aggressively and in a threatening manner whilst at an associate’s home.     TORUN had taken the gun with him to this address and threatened to “… fucking blow your head off”.  When they returned to Military Road, TORUN was distracted by the fact the deceased had left.   CORISH used this opportunity to hide the gun as he felt TORUN was becoming out of control and dangerous.   CORISH did his best to disable the gun in the hope that it would be unable to be used.

33. Before the deceased returned home, TORUN became enraged.   TORUN punched a wall causing damage to his hand.

34. At 7:00 am TORUN contacted PULO enquiring as to the whereabouts of the deceased.   After a brief conversation, TORUN advised the deceased was with him and he was testing PULO.   PULO yelled for the deceased to leave TORUN.   TORUN threatened to “blast” PULO’S head off and if the police were to attend, she was dead.   

35. The deceased and TORUN continued to argue.   TORUN smashed plates over his head and punched a wall.  During the course of the argument, TORUN yelled for the gun.   CORISH told him it was in the rubbish but TORUN would not give up and continued to demand its production.   CORISH revealed the hiding spot however TORUN then demanded the ammunition also be produced.   TORUN regained possession of the gun and ammunition. 

36. In an attempt to diffuse the situation, CORISH took the deceased for a drive.  During this time alone together the deceased talked about ending the relationship with TORUN.

37. Whilst with CORISH, at 10:08 am the deceased contacted RUSHBY via Facebook and asked if she could be collected from Melbourne as she had discovered TORUN was cheating on her.   RUSHBY advised she was unable to collect her but she could transfer money to the deceased’s account which would enable her to catch a train.   RUSHBY did not hear from the deceased.

38. CORISH received a message “come back to the house”.  CORISH and the deceased returned to the house.   When the car was parked, TORUN approached the car and yelled at the deceased.    They continued to argue until eventually they all went inside and the deceased went to the bedroom.

MANSLAUGHTER

39. During the afternoon of the 17^th of April 2013, TORUN was observed by neighbours to be drug affected.    A male and female were heard fighting from the deceased’s unit.    Shortly after the yelling, the deceased was seen carrying two back packs and a pillow at the doorway.   TORUN was behind her and used some force to move the deceased through the door.   The deceased walked up the street whilst TORUN remained at the property.    The deceased was crying and waiting at a bus stop.  TORUN then approached the deceased.   After some discussion, both returned to the unit.   Throughout the afternoon, neighbours could still hear a male yelling at the deceased’s unit.

40. TORUN left the property for a short amount of time.   CORISH again took the opportunity to hide the gun before TORUN returned.

41. At approximately 3:30 pm Baki UNLU was collected by Brittany PULO and returned to the Military Road address with Brittany PULO and Laura SUMMERHILL at approximately 5:00 pm.   Once at the address, UNLU returned to PULO and SUMMERHILL advising them to leave as TORUN was angry.   UNLU left with PULO and SUMMERHILL.   At approximately 8:00 pm they returned to the address as UNLU wished to collect something.   Again UNLU advised them to leave as TORUN was angry.    TORUN came out of the house screaming as the car took off.   UNLU remained at the property despite TORUN being angry with him for spending time with PULO.

42. During this episode, TORUN again demanded the gun be produced and was screaming for the shells.    He screamed out he wanted to “kill her” and made a threatening phone call to someone.  

43. PULO was instructed to cease contacting UNLU as TORUN was reading their messages.   TORUN was angry with PULO.  

44. CORISH commenced cleaning out his car and was walking to and from the house and his car.   CORISH observed TORUN to be in possession of the gun and ammunition and to be pointing it at people and threatening to shoot them. 

45. SMITH had arranged to meet UNLU at the property with the view to discussing their relationship.   SMITH arrived at approximately 9:25 pm.     As SMITH approached the front door, CORISH told her to leave as it wasn’t a good time.   SMITH returned to her car and telephone UNLU.   UNLU collected SMITH from outside and both entered the property.  

46. SMITH walked into the lounge room to say hello to the deceased and TORUN.  UNLU was also in the lounge room.   The deceased was seated on the couch with a crack pipe in her hand.  TORUN was telling a story with a gun in his hand in front of the deceased, less than one metre from her.   TORUN pulled the trigger whilst pointed at the deceased.   The bullet entered the deceased’s right groin at a perpendicular angle. 

47. TORUN immediately attended to the deceased.  SMITH and UNLU called for an ambulance from their phones however TORUN and CORISH decided to take the deceased to the hospital themselves.   CORISH was not present when the gun was discharged. 

48. After they had left, SMITH and UNLU were directed to clear the property of the gun and any drugs.   The gun was concealed in SMITH’S car together with two bags containing drugs and drug paraphernalia.    As they drove towards a hospital, they noticed police cars at the service station.    SMITH slowed down and observed CORISH’S car.   SMITH stopped the car and saw TORUN and the deceased.  

49. TORUN spoke to police at the service station and stated he did not know who shot the deceased.   He stated he did not see her shot as he was near the laundry when it happened.  He stated when he returned to the lounge room the sawn-off shot gun was with the deceased.    He admitted to arguing with the deceased earlier in the day which caused him to punch a brick wall and a shower screen. 

50. Whilst at the service station SMITH was approached by NESCI and Seona GEDDES.   SMITH informed them of what had occurred.   NESCI suggested she move her car in the event police searched her car and found the gun.    NESCI advised her to drive to a different location and wait for UNLU as he had left with police to make a statement. 

51. SMITH moved her car and waited at a car park for UNLU.   Whilst waiting, NESCI and GEDDES approached and invited her to wait for UNLU at their bakery.   SMITH followed them to the bakery.   Whilst at the bakery SMITH further explained what had happened.   NESCI advised SMITH to remove the gun from the car as police may attend with UNLU once he has finished making his statement.   NESCI and SMITH went to the car and removed the gun and two bags.   NESCI used a plastic bag to pick up the gun.   NESCI hid the gun in a hidden compartment in the house.

52. Approximately one hour later, UNLU returned from the police station.   SMITH advised UNLU of NESCI’s offer to destroy the gun.   UNLU decided to keep the gun and left with NESCI to collect it. UNLU maintained his position that he wished to retrieve the gun.

53. SMITH and UNLU left the bakery and drove to the hospital.

54. TORUN was arrested.   A conversation with police was covertly recorded at the police station where the accused stated he heard the shot and ran straight to the lounge room where he found the deceased with the shotgun.   He didn’t know the shotgun had been in the house.  He stated that although they used to argue, they had not argued this day and they were happy but they had argued about Brittany PULO.   Some of the blood in the house would be his as he hurt himself earlier when he head butted the shower screen.    He could not provide an explanation for how the deceased was shot and suggested she shot herself. He was later interviewed and having received legal advice exercised his right to make no comment.

Crime Scene Examination

55. Investigators examined 1/10 Military Rod, Avondale Heights.    The second ammunition cartridge was located in the driveway.   Forensic testing revealed there was no DNA recovered on the round found in the driveway.  However Torun's DNA was found on the live fired cartridge found inside the barrel of the recovered firearm.

56. The sawn-off shotgun was located by police in SMITH’S car.   The shotgun was tested by Ballistics experts at the Victoria Police Forensic Science Laboratory.   It is estimated TORUN was between .5 and 1 metre from the deceased when he fired the shotgun.   Further, the firearm had significant recoil.

57. TORUN admits that he loaded the firearm at some stage prior to the shooting however, because of his drug affected state he had no recollection that the firearm was loaded.

Post-mortem examination

58. At the Royal Melbourne Hospital, the deceased was diagnosed with a gunshot wound to the right groin causing multiple bowel injuries, a fractured pelvis and massive blood loss resulting in hypovolemic shock.   As a result of the injuries she suffered from septic shock, acute kidney injury and acute cerebral oedema resulting in brain death. 

59. After multiple surgeries, Kara DOYLE died on the 22^nd of April 2013.

60. A post-mortem examination was conducted by Doctor Michael BURKE on the 24^th of April 2013.   The cause of death was found to be hypoxic ischaemic brain injury, exsanguination and shotgun injury to the right groin