R v Yucel - [2018] VSC 506

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0121

THE QUEEN

KAMIL YUCEL

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2018
DATE OF SENTENCE:	5 September 2018
CASE MAY BE CITED AS:	R v Yucel
MEDIUM NEUTRAL CITATION:	[2018] VSC 506

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Accused in ongoing, genuine and reasonable fear – Plea of guilty – Remorse – Good prospects for rehabilitation – General deterrence and denunciation – Sentence of 5 years’ imprisonment with non-parole period of 3 years – 782 days served as pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC	John Cain, Solicitor for the Office of Public Prosecutions
For the Accused	Mr P Morrissey SC with Ms G Morgan	Stephen Andrianakis & Associates

HER HONOUR:

Kamil Yucel, you have pleaded guilty to the manslaughter of Rahat Khan on 12 July 2016. You shot Mr Khan twice with a firearm. He subsequently died from acute internal blood loss from the gunshot wound to his chest.

The maximum penalty for manslaughter is 20 years’ imprisonment.

Summary of Offending

Background

The series of events that led you and Mr Khan to meet in the street outside your brother’s Broadmeadows house in the gloaming of that July night are as complex as they are tragic.

You had, for a little more than 12 months, been living in fear of a man named Farshad Rasooli. In May 2015, you and Mr Rasooli had a public confrontation at the Hume Islamic Youth Centre over a debt he alleged you owed him. An associate of yours intervened by shooting Mr Rasooli in the leg. Mr Rasooli declined to involve police. Rather, he made it known that he sought revenge and money from you.

Your fear of Mr Rasooli was ongoing, genuine and reasonable. I accept that documents within the control of Victoria Police demonstrate their knowledge of Mr Rasooli’s threatening behaviour and record police concern that you might be shot by him or his associates. Indeed, on 22 May 2015 police informed you of their concerns for your safety. One of Mr Rasooli’s associates was Mr Khan, although, at the time, you knew him only as ‘Hamza’.

People within your own circle, including your Imam, note that your general, subsisting fear was, at the core, a specific fear of being shot.

In the year leading to 12 July 2016, you took a number of steps to avoid Mr Rasooli and his associates, shield yourself and your family from the danger posed and even attempted to resolve the issues.

After receiving the police warning in May 2015, you fled to Turkey where you remained for about four months. Shortly after your return to Melbourne in September 2015, Mr Rasooli, together with a large number of his associates, attended the Hume Islamic Youth Centre searching for you. You made yourself difficult to find. You lived peripatetically, staying in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Yucel

Details

AGLC: R v Yucel [2018] VSC 506
Case: [2018] VSC 506
Decision Date: 5 September 2018

CaseChat Overview and Summary

The case of R v Yucel involved the defendant, Mr. Yucel, who pleaded guilty to manslaughter by an unlawful and dangerous act. The incident leading to the charge occurred in a context of ongoing, genuine, and reasonable fear on the part of the accused. The case was heard in the Supreme Court of the relevant jurisdiction. The primary legal issue the court had to address was determining an appropriate sentence for Mr. Yucel, considering various factors such as his plea of guilty, remorse, prospects for rehabilitation, and the need for general deterrence and denunciation.

The court meticulously evaluated the mitigating factors presented, including Mr. Yucel’s plea of guilty, which typically carries weight in sentencing. The court also took into account his remorse, which was demonstrated through his acceptance of responsibility and expressions of regret. Additionally, the court considered his good prospects for rehabilitation, indicating that he was likely to benefit from corrective measures and reintegrate positively into society. The need for general deterrence and denunciation was also a significant consideration, balancing the need to uphold the law's authority with the potential for rehabilitation. After weighing these factors, the court decided on a sentence of 5 years’ imprisonment, with a non-parole period of 3 years. The court also noted that Mr. Yucel had already served 782 days in pre-sentence detention, which was taken into account in the overall sentence.

In conclusion, the court found that the circumstances warranted a sentence that balanced the need for punishment and deterrence with the potential for the accused's rehabilitation. The sentence imposed, with the specified non-parole period, reflects the court's assessment of these considerations. The court’s decision was thus a careful balancing act, reflecting the multifaceted nature of sentencing in cases of manslaughter.

Orders