(Revised) R v Gurlu
[2022] VSC 820
•22 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0136
| Between: | |
| THE KING | |
| -and- | |
| EMRE GURLU | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12 December 2022 |
DATE OF SENTENCE: | 22 December 2022 |
CASE MAY BE CITED AS: | R v Gurlu |
MEDIUM NEUTRAL CITATION: | [2022] VSC 820 First revision: 25 January 2023 |
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CRIMINAL LAW — Sentence — Intentionally causing injury — Manslaughter — At gathering, accused without warning grabbed ND, held knife to his face and then cut his cheek — Shortly thereafter, while IS repeatedly punched LH, accused stabbed LH twice to chest with knife — Accused, IS and others left scene without attempting to assist LH or call emergency services — LH died from stab wounds — Accused showered and changed clothes — Accused later apologised to ND about incident — Premises at which assault and killing occurred burned, as was LH’s body, but fire not attributable to accused — When arrested and interviewed three months later, accused made admissions, including to stabbing LH — Whether accused’s intellectual disability and schizophrenia impacted on judgment and impulse control, reduce weight to general and specific deterrence, and increase hardship of imprisonment — Accused intoxicated but aware intoxication makes him violent — Accused previously imprisoned for offences of violence — Pleas of guilty — Early offer to plead guilty to manslaughter — Reasonable to good prospects of rehabilitation — Sentence of ten-and-a-half years’ imprisonment on manslaughter — Sentence of 18 months’ imprisonment on intentionally causing injury — Six months’ cumulation — Total effective sentence of eleven years’ imprisonment — Non-parole period of seven-and-a-half years — But for pleas of guilty, total effective sentence of fourteen years’ imprisonment with non-parole period of up to eleven years — Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; Crimes Act 1958 (Vic), s 5.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Rochford KC with Mr P Pickering | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr P Smallwood | Amad & Amad Lawyers |
HIS HONOUR:
Overview
In the early hours of 8 July 2021, at a gathering at a home unit in Dandenong, Emre Gurlu committed two serious acts of violence, one of which had consequences of the gravest kind.
While in the outside area of the unit, Mr Gurlu grabbed Neno Drozdan without warning and cut his cheek with a knife. Mr Gurlu then said to Mr Drozdan, “You want to fuck around now, cunt?” Ishmail Sozman and Masi Ayiik pushed Mr Gurlu away, and Mr Sozman yelled at him in Turkish. Mr Gurlu looked confused and said, in English, “Isn’t this the cunt you have a problem with?”
At this point, Laurence Hall came from inside the unit to the back door to see what was happening. Mr Sozman and Mr Gurlu then attacked Mr Hall. Mr Sozman punched him repeatedly while Mr Gurlu stabbed him twice to the chest with the knife. Afterwards, Mr Sozman and Mr Gurlu yelled at each other in Turkish. Mr Gurlu said, in English, “I told you I stabbed him.”
Messrs Gurlu, Sozman, and Ayiik immediately left the premises without attempting to help Mr Hall or call emergency services.
The next morning, on 9 July 2021, the flat was set on fire. As a result, Mr Hall’s body was badly burned. However, he had already died as a result of the knife wounds, which injured his heart, aorta, and left lung. It is not alleged that Mr Gurlu had anything to do with lighting the fire.
Mr Gurlu was arrested three months later and interviewed by police. Among other things, he admitted stabbing Mr Hall but said that he could not remember how many times or to what part of his body he stabbed him. He was charged with murdering Mr Hall and intentionally causing injury to Mr Drozdan. He has remained in custody ever since.
Mr Gurlu offered to plead guilty to manslaughter prior to the committal proceedings in the Magistrates’ Court. That offer was rejected by the Director of Public Prosecutions at first but was accepted following the committal. Mr Gurlu has now pleaded guilty in this Court to the manslaughter of Mr Hall, and to intentionally causing injury to Mr Drozdan.
There is no issue that Mr Gurlu must be imprisoned for this offending, and for a substantial period. In the balance of this judgment, I shall explain why I have determined to impose the sentence to be announced at the conclusion of these reasons.
Summary of offending
Agreed summary
I turn first to a more detailed summary of the offending and surrounding circumstances as outlined by Mr Pickering, who was led on the plea by Mr Rochford KC for the Director. As I understood Mr Smallwood, who appeared for Mr Gurlu, this is an agreed summary.
Background
The relevant events occurred in several home units in the same part of McRae Street in Dandenong.
Mr Hall, who was aged 28, had moved into an apartment at 97 McRae Street with his mother. It was there that he met Mr Drozdan, who lived next door at 1/99 McRae Street. The two men became friends in the months before Mr Hall’s death. Mr Gurlu did not know Mr Hall prior to that night.
On 7 July 2021, Mr Hall attended a unit at 2/99 McRae Street. While there, he smoked cannabis with others, including Mr Ayiik, Lee Doyle, Sasha Adams, and Kayla Forster. After a few hours, Ms Doyle and Ms Forster left to look for more cannabis.
Later that afternoon, Ms Doyle went to the home of Chloe Gordon at 1/98 McRae Street. She sent a message for Mr Hall to come over to get the cannabis. At this time, Mr Hall said something to Ms Doyle about getting lucky with a girl he liked.
At about the same time, Mr Gurlu was drinking with Mr Sozman at Ms Gordon’s unit. They had arrived at about 4:00 p.m. Thereafter, the two men went next door, to Melissa Gleeson-Newman’s unit at 2/98 McRae Street. Ms Adams and Mr Ayiik were at the same unit at various times.
At some time after midnight, Messrs Ayiik, Sozman and Gurlu went to Mr Drozdan’s unit. Also present when they arrived were Ms Adams, Ms Doyle and Ms Forster.
Mr Drozdan was introduced to Mr Gurlu only as Mr Sozman’s cousin. Ms Doyle heard him described as “Mr Northern Suburbs”.
Mr Sozman appeared to be intoxicated. He was crying while talking about his children.
Intentionally causing injury to Mr Drozdan
After sitting in Mr Drozdan’s loungeroom for a while, Mr Sozman went outside, saying he needed fresh air. Messrs Gurlu, Ayiik and Drozdan went outside with him. Mr Hall stood up to go with them but was told by Mr Sozman to stay inside as he only wanted “the brothers” outside. Mr Hall stayed in the loungeroom.
While outside, Mr Sozman still appeared upset. Mr Drozdan put his arm around Mr Sozman’s shoulder.
Without warning, Mr Gurlu came up behind Mr Drozdan and grabbed him. He held a knife to Mr Drozdan’s cheek. Mr Gurlu then cut down the right side of his cheek, causing him to bleed. He said to Mr Drozdan, “You want to fuck around now, cunt?”
Mr Sozman and Mr Ayiik pushed Mr Gurlu away, and Mr Sozman yelled at him in Turkish. Mr Gurlu looked confused and said, in English, “Isn’t this the cunt you have a problem with?”
Manslaughter of Mr Hall
At this point, Mr Hall came to the door to see what was happening. Mr Sozman and Mr Gurlu then ran inside and attacked Mr Hall in the loungeroom. Mr Sozman was on the left side of Mr Hall and Mr Gurlu was on the right. Mr Sozman repeatedly punched Mr Hall, who was standing hunched over with his hands covering his head to protect himself. Mr Gurlu swung his right hand and struck Mr Hall twice in the chest with a knife. Mr Hall yelled “Nenos” (which was how he referred to Mr Drozdan), and collapsed backwards onto the couch.
Mr Gurlu then turned to Mr Drozdan and told him, a few times, to back off. Mr Drozdan picked up a chair to protect himself.
Mr Drozdan heard Mr Hall exhale loudly. Mr Ayiik lifted Mr Hall by the collar and could see a pool of blood under him.
Mr Gurlu and Mr Sozman yelled at each other in both English and Turkish. Mr Drozdan heard Mr Gurlu say, in English, “I told you I stabbed him.”
Mr Hall was now lying on the floor near the door to the kitchen. Ms Adams came out of the bedroom and screamed when she saw Mr Hall’s body. Ms Forster and Ms Doyle came out of the bedroom and immediately left the premises, as did Ms Adams.
Messrs Gurlu, Sozman and Ayiik all left immediately too, and did not attempt to help Mr Hall or call emergency services.
Subsequent events
Mr Ayiik, Mr Drozdan, Ms Adams, Ms Doyle and Ms Forster went back to Ms Gordon’s unit. Mr Ayiik told Ms Gordon that Mr Gurlu had killed Mr Hall. She told them all to leave.
Messrs Ayiik, Sozman and Gurlu went to another apartment, at 7/61-63 Clow Street, in Dandenong at 1:28 a.m. While there, Mr Gurlu showered and changed his clothes.
The three men then went to a 7/11 store next to the apartment block, before returning to Ms Gordon’s unit at about 7:00 a.m. Also present were Mr Drozdan, Ms Doyle and Ms Forster. Mr Gurlu apologised to Mr Drozdan for the incident in which he was injured but then joked about it.
Mr Sozman asked Mr Drozdan and Ms Doyle what they were going to do about the body of Mr Hall. Mr Sozman told Mr Drozdan that it looked bad for him because of the cut on his face. Messrs Sozman, Drozdan and Gurlu and Ms Doyle then smoked methylamphetamine together and talked about disposing of Mr Gurlu’s body, including by a fire, setting off a fire hydrant in the unit, or putting the body in a bin.
At about 10:35 a.m., this group left Ms Gordon’s unit to buy more drugs before going to the home of Mr Sozman’s father in Dandenong South.
At 4:45 p.m., Mr Gurlu was seen boarding a city-bound train at Dandenong Station.
Discovery of Mr Hall’s body
On the morning of 9 July 2021, a fire was noticed at 2/99 McRae Street. When fire fighters arrived at 8:10 a.m., they found Mr Hall’s lifeless body. There were burns to his back and limbs but not his front, suggesting he was lying face down at the time the fire started.
There was a significant amount of blood on the floor near the couch. There were also blood stains on the driveway outside, which were later identified through DNA testing as being Mr Drozdan’s blood.
Post-mortem
A post-mortem was conducted on Mr Hall’s body the same day.
It was found that two stab wounds had penetrated his chest wall. One wound perforated his left lung. The other perforated his ascending aorta and the right atrium of his heart. The stab wounds were associated with 1.2 litres of blood found between the chest wall and the lung, and in the pericardial sac of the heart. He also had a collapsed lung.
Further, Mr Hall had suffered abrasion, bruising and focal laceration around his right eye and forehead, and bruising on the left jawline.
The pathologist concluded that the cause of death was the stab injuries to Mr Hall’s chest.
Arrest and interview
Mr Gurlu was arrested at his home three months later, on 8 October 2021.
He was interviewed at St Kilda Police Station and made the following admissions. He claimed that he had seen “Issy” (Mr Sozman) fighting with some bloke at the house. He pulled a knife and stabbed Mr Hall. He did not know why he pulled out the knife or how many times he stabbed Mr Hall. Nor could he remember where he stabbed him. He said that Mr Hall fell when stabbed. He said that he panicked and ran away with Issy. Afterwards, he had a shower and changed his clothes. He had taken the knife from a house at which he had been drinking before the stabbing, and had since disposed of it. When asked by police why this happened, Mr Gurlu answered, “I don’t know even to this day.” He could not remember cutting Mr Drozdan.
Victim impact statements
I received in evidence victim impact statements from three family members of Mr Hall. His brothers Joshua Hall and Anthony Luckfiel read their statements in court. His grandmother Agatha Luckfiel stood beside Carrie Symonds, a social worker, who read her statement aloud as well.
All three expressed the grave feelings of sadness, hurt and devastation they suffer at the loss of their loved one and the circumstances in which he was killed. Understandably, Mr Hall’s brothers were enraged when they were told by police what had happened. They miss their brother terribly. Mrs Luckfiel, who raised all three brothers for large parts of their lives, also misses her grandson — so much that she sleeps in his old room with his singlet under her pillow. All spoke of their fond memories of Mr Hall and his admirable qualities but are distraught that their hopes for him can never be realised.
The victim impact statements are profoundly moving documents. In so far as it is permissible to do so, I have had regard to them in considering sentence.
I wish to add this. I know that there is nothing this Court can say or do to salve, let alone heal, the grief and pain suffered by Mr Hall’s loved ones. The sentence I must impose is not a reflection of the worth of Mr Hall’s life. It cannot be. For a start, such a precious thing is immeasurable, at least by a stranger. But, in any event, the sentence I must impose reflects many factors which I am required by law to take into account, only one of which is the impact on victims.
Nature and gravity of offences
Manslaughter
I turn now to the nature and gravity of manslaughter generally and this offence in particular, including Mr Gurlu’s level of culpability.
Manslaughter in this State is (mostly) a common law offence,[1] the maximum penalty for which is now 25 years’ imprisonment.[2]
[1]The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.
[2]See s 5 of the Crimes Act 1958 (Vic). The maximum penalty was increased from 20, to 25, years’ imprisonment on 1 July 2020 (see ss 2 and 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic)).
The charge of manslaughter against Mr Gurlu is put on the basis of a killing by an unlawful and dangerous act. This means that it is alleged, and accepted by Mr Gurlu, that his actions in deliberately stabbing Mr Hall were both unlawful and dangerous. The stabbing was unlawful because it amounted to an assault without legal justification or excuse. It was dangerous because a reasonable person in Mr Gurlu’s position would have realised that, in stabbing Mr Hall to the chest as he did, he was exposing him to an appreciable riskof serious injury.
It is important to understand that this does not mean, and must not be taken as meaning, that Mr Gurlu intended to cause death or really serious injury or that he was reckless as to either outcome, for otherwise it would be murder. Mr Gurlu is to be sentenced for manslaughter, not murder. Nor, given the concessions that have been made by the Director, am I to sentence Mr Gurlu in any way for the fact that Mr Hall’s body was burned after he died.
While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely. Of the two categories of the offence remaining in Victoria,[3] manslaughter by unlawful and dangerous act is usually regarded as more serious than manslaughter by criminal negligence. But there is no inflexible rule. An offence falling within one category may be more or less serious than one falling within the other. Each case must turn upon its own particular facts.[4]
[3]Voluntary manslaughter no longer exists in Victoria as a result of the abolition of provocation as a defence to murder (see s 3B of the Crimes Act 1958 (Vic)). In Wilson v The Queen (1992) 174 CLR 313, the High Court held that battery manslaughter is no longer part of the common law of Australia.
[4]See, e.g., R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] (per Weinberg JA; Williams AJA agreeing at 92[75]).
The manslaughter committed by Mr Gurlu had serious features, including the following.
First, every offence of manslaughter has a grave component, by definition, in that the life of another human being has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.
Second, here, the life of a beloved brother, son, grandson and member of a wider family, aged only 28, has been taken as a result of violent, unlawful and dangerous conduct. Inevitably, and as the victim impact statements make so plain, the grief and pain for the loved ones left behind in these circumstances is palpable.
Third, as indicated earlier, by his own admission, Mr Gurlu was already carrying the knife he used to kill Mr Hall, as he had used it only seconds before to injure Mr Drozdan, having picked it up from elsewhere earlier in the evening. Thus, it is not as if he grabbed the knife spontaneously in the midst of a confrontation.
Fourth, Mr Hall had done nothing to Mr Gurlu. He was merely curious, probably concerned, about what was happening outside. Mr Gurlu’s attack upon him was completely unprovoked. Mr Smallwood made it clear that, while Mr Gurlu said in his police interview that he could see Mr Sozman fighting, it was not submitted that there was any sense in which he was defending another.
Fifth, the attack involved two persons on to one. Mr Gurlu had a weapon. Mr Hall had nothing. He had no chance. It was a cowardly thing to do.
Sixth, Mr Gurlu used an inherently dangerous weapon to inflict wounds to the chest, which is a vulnerable part of the body.
Seventh, he stabbed Mr Hall not once to the chest, but twice.
Eighth, the nature and position of the stabbings, I am satisfied, implies that Mr Gurlu must have intended to do Mr Hall a significant injury. Further, I am satisfied that, in stabbing him twice to a vulnerable area, he was reckless as to causing serious injury. I stress, however, that I do not, and must not, sentence on the basis that he intended or was reckless as to causing really serious injury or grievous bodily harm, as that would be to sentence him for murder.
Finally, Mr Gurlu’s post-offence conduct did him no credit. He did not stay to render any assistance to Mr Hall. He did not even call triple-zero. Later, he showered and changed his clothes. While I accept that he panicked, this behaviour was callous and smacked of self-interest.
The foregoing matters must be weighed against the factors limiting the gravity of this instance of manslaughter, which include the following.
First, as grave as the acts of stabbing to the chest were, this was not a protracted assault involving numerous acts of violence. Rather, Mr Gurlu’s part in the attack seems to have ended almost as quickly as it started.
Second, there were no gratuitous further acts of violence once Mr Hall fell to the floor, as sometimes happens in homicides or other very serious assaults.
Third, while common sense tells that a stabbing to an area as vulnerable as the chest can result in death, and while he intended to injure Mr Hall and was reckless as to causing him serious injury, I am not satisfied that Mr Gurlu actually foresaw the possibility of death.
Finally, while Mr Gurlu was already carrying the knife and had just used it to harm Mr Drozdan, the stabbing of Mr Hall appears to have been spontaneous rather than premeditated.
In the end, Mr Smallwood accepted that this was a “serious” instance of manslaughter. That concession was properly made. Overall, it was a very serious offence.
Intentionally causing injury
I turn now to intentionally causing injury, which is a statutory offence. As the name suggests, the offence involves intentionally causing injury to another person. It carries a maximum penalty of ten years’ imprisonment.[5]
[5]See s 18 of the Crimes Act 1958 (Vic).
“Injury”, for this purpose, includes physical injury, whether temporary or permanent. “Physical injury” includes unconsciousness, disfigurement, substantial pain, infection with a disease, and an impairment of bodily function.[6]
[6]See s 15 of the Crimes Act 1958 (Vic).
In the present case, I know little about the injury sustained by Mr Drozdan, other than what I have described earlier. For example, while the cut bled, nothing was said in the opening about the length or depth of the cut, whether any medical treatment was sought or required, whether it caused any pain or discomfort, how long it took to heal, or whether it left any scarring.
Thus, on the case before me, I am bound to conclude that the injury sustained is, objectively speaking, at the lower end of the spectrum of injuries that might constitute this element of the offence.
That said, to use a knife intentionally to cause injury by cutting the face of another, in the circumstances described, is still a nasty thing to do, even if it occurs spontaneously, as appears to have been the case here. And while there is no victim impact statement from Mr Drozdan, it can be inferred that it would have been a terrifying experience.
Intentionally causing injury is an offence that can vary a great deal in seriousness. A charge alleging such an offence can be, and usually is, heard summarily in the Magistrates’ Court. In this case, the charge was, of necessity, brought in this Court on indictment given its connection to the manslaughter. Had the offence been committed in isolation, it could have been dealt with in Magistrates’ Court quite comfortably.
While this instance of the offence involved a serious act of violence, it is dwarfed in gravity by the manslaughter of Mr Hall.
Personal circumstances, including intellectual disability and schizophrenia
Assessment by Dr Rakov
On 4 November 2022, Mr Gurlu was interviewed and assessed by psychiatrist Dr Jacqueline Rakov. Her report was received in evidence without objection. Mr Smallwood relied on that report to establish much of Mr Gurlu’s personal, psychiatric and intellectual disability history, his circumstances in custody and prospects for the future, and the potential impact of those considerations on sentencing. Accordingly, I think it is necessary to refer to the report — which I found very helpful — in some detail.
Personal history
Prior to his arrest, Mr Gurlu was living with his parents and his brother in Roxburgh Park. His parents are from Turkey. He is the youngest of five siblings, with three sisters and one brother. He was in receipt of a disability support pension because of his intellectual disability and schizophrenia.
Mr Gurlu described himself to Dr Rakov as a “bad, paranoid child”. He was bullied in primary school because, he said, he was “fat and stupid”, and for his poor attention span. School, he said, was difficult — both socially and academically. He said he did not pay attention to the teachers, was “always fighting”, and was “just a nuisance”. He said he “couldn’t study”, and was expelled in Year 8.
Following this departure from school, Mr Gurlu began working with his brother (who is a plasterer) but said he lasted only six months because he “started bludging”. He then worked “on and off” in trades but could not maintain interest, concentration or commitment to any roles.
Mr Gurlu reported little in the way of personal relationships. He has no children. He has a number of friends, and said that they do not all use methamphetamines.
Mr Gurlu told Dr Rakov that he spent his time playing video games and seeing friends. He described good home relationships and said that he would occasionally help out with cleaning at home.
At the time of the assessment, Mr Gurlu described his mood as “honestly, pretty shit”. In Dr Rakov’s opinion, his emotional state was reduced in its reactivity and was flat, consistent with his subjective report. He presented his ideas in a linear manner. He did not, in her view, present with any bizarre or concerning material.
Mr Gurlu told Dr Rakov that he experienced auditory hallucinations historically but that it had “been a while”. He was not suicidal, and said that he did not have ideas or any command hallucinations to harm others.
Mr Gurlu said that he was aware he had an intellectual disability. While his responses were not complicated, Dr Rakov did not observe any gross deficits in his comprehension or expression.
Dr Rakov considered that Mr Gurlu was able to articulate some awareness around his mental health diagnosis, and the role of, and need for, treatment. He identified the problematic role substance use has had on his mental health and in turn with respect to his offending.
He had smoked a packet of cigarettes each day since the age of thirteen.
He told Dr Rakov that he drank alcohol socially. He said that, when he was younger, he regularly drank in a binge pattern. He acknowledged that alcohol predisposes him to violence as it reduces his tolerance for frustration.
Mr Gurlu told Dr Rakov that he smoked cannabis when he was younger. He said he began using methamphetamine from around the age of fifteen or sixteen. He said he smoked it and was using between one and two grams per day. He said his use peaked significantly between July 2021 and his arrest in October 2021.
He denied any history of prescription medication abuse. He said he had not used any other illicit substances.
Mr Gurlu said he had not been to detoxification or rehabilitation facilities and could not recall any participation in drug and alcohol counselling.
He told Dr Rakov that he spent most of his time playing video games, “all day, every day”, across a variety of consoles.
He said that he did not gamble.
Psychiatric history
As for his psychiatric history, Mr Gurlu told Dr Rakov that he had a diagnosis of “mental health”. When asked to elaborate, he said, “Paranoia … hearing voices sometimes.” When asked if he was familiar with the term schizophrenia, he responded, “Not sure … maybe.”
Mr Gurlu said that he first experienced psychotic symptoms (auditory hallucinations) at the age of thirteen. He said that he was very paranoid, sleeping with a knife under his pillow. He told Dr Rakov that he had slept beside his mother because of paranoia since the age of sixteen.
Current symptoms
As for his current symptoms, Mr Gurlu described a low mood (“pretty shit”) and the pervasive nature that his mood had on him. Oftentimes, he would stay in his cell, not shower for a week at a time, stop eating, and withdraw from making family contact.
He said he spent a lot of time thinking about his offending. He said, “I took someone’s life.”
He said that he had around six hours of broken sleep per night, and it was “not that good”. He said that his appetite was okay and that he had lost weight in custody.
Mr Gurlu told Dr Rakov that his most prominent symptom was paranoia. He said he was “always” paranoid that “people are after me” or that “people will kill me”. He said this was the reason he carried a knife and slept with a knife under his pillow.
He said he had not experienced perceptual disturbances for some time. He said historically he had experienced sometimes mean and sometimes command hallucinations, but did not recognise a voice. He did not recall any examples for Dr Rakov.
Treatment
Mr Gurlu told Dr Rakov that his current treatment was with the antipsychotic medication risperidone, two milligrams daily. He said that it helped with “my mood and my psych issues”. He said he had previously been managed by Orygen Youth Mental Health and received this same medication through long-acting injectable form.
Mr Gurlu said he could not explain the reason for withdrawing himself from treatment previously. He said, “Should have took it, but I didn’t.”
He has not been hospitalised for psychiatric illness or treated with electro-convulsive therapy.
Nor has he ever engaged in deliberate self-harm or attempted suicide.
Other sources of information
In her report, Dr Rakov referred to other sources of information about Mr Gurlu’s mental health and intellectual functioning.
She observed that Mr Gurlu was issued with a statement of intellectual disability as defined by the relevant legislation following an assessment conducted on 28 March 2019.
He saw Orygen Youth Health between October 2011 and August 2015. He recommenced medication when he was remanded in custody in late-2018.
At the time of a report authored in 2019, Mr Gurlu reported that “ceasing his medication of risperidone a few years ago was a ‘mistake’ and [he] is aware that consistent [medication] use will assist him to manage his aggressive behaviours and reduce his likelihood of re-offending”.
Dr Rakov had access to a report of psychiatrist Dr Ann Brennan, dated 7 May 2019. Dr Brennan opined that it was likely that Mr Gurlu was experiencing “an enduring psychotic illness in the form of schizophrenia”. She observed that he appeared to have “significant cognitive deficits that are developmental rather than acquired”. Dr Brennan noted that Mr Gurlu had a history of problematic substance use, mainly with alcohol and cannabis. She recommended referral to the local area mental health service for further assessment, monitoring of his response to treatment, and assistance with rehabilitation and recovery, including referrals to NDIS.
Dr Rakov also had access to the report of psychologist Gina Cidoni, dated 7 July 2018. Ms Cidoni opined that Mr Gurlu’s presentation was consistent with “paranoid schizophrenia” which resulted in “loss of contact with reality and having delusions and false beliefs and hallucinations”. She considered that his cognitive deficits included problems with attention, memory, verbal skills, and other mental functions. Ms Cidoni suggested eligibility for NDIS support might include “case worker support and counselling pitched at his low-level IQ that may deter involvement in offending”.
Medical history
As for his medical history, Mr Gurlu told Dr Rakov that he was healthy, except for high cholesterol, with no major surgeries or illnesses.
Dr Rakov had access to a report by the Department of Health and Human Services, dated 9 May 2019, which notes that Mr Gurlu was born with a nuchal cord. In Dr Rakov’s view, it was unclear whether he sustained any degree of hypoxic brain injury that could inform his intellectual disability.
Prior criminal history
Dr Rakov had access to Mr Gurlu’s prior criminal history, which he admitted in this Court.
He told Dr Rakov that he had a number of previous convictions. He said that his prior offending had been related to anger. He said, “Alcohol makes me violent.” He told Dr Rakov, “I don’t like being violent, miss.”
Mr Gurlu said that he spent two years at Margoneet Prison for assault. He said, “Some guy done something he shouldn’t have done.” He said he spent time at Barwon Prison for firearms offences. He said he also spent time at Port Phillip Prison for breaching an intervention order made against him in favour of his sister (with whom he is now on speaking terms).
Mr Gurlu has a criminal history for an array of offences, including theft, handling stolen goods, possessing firearms, breaching bail, possessing methylamphetamine, damaging property, driving offences, threatening to kill, recklessly causing injury, and recklessly causing serious injury.
Of most significance in the present context are the following convictions. First, he was placed on a community correction order for twelve months in 2014 for recklessly causing injury (and handing stolen goods). Then, in 2015, he was sentenced to eighteen months’ imprisonment with a non-parole period of nine months for recklessly causing serious injury. Finally, in 2018, he was sentenced to an aggregate sentence of 116 days’ imprisonment for making a threat to kill and two instances of recklessly causing injury (and offending while on bail).
Of less relevance is that he was sentenced in 2019 to an aggregate sentence of fourteen months’ imprisonment with a non-parole period of eight months for possession of firearms as a prohibited person and possession of cartridge ammunition without a permit. Two months later, he was sentenced to 35 days’ imprisonment for theft, failing to stop a vehicle on police direction, and possessing methylamphetamine (as well as being convicted and discharged on some other driving offences).
These sentences were all imposed in the Magistrates’ Court.
Current charges
Mr Gurlu discussed the present charges, and his plea of guilty, with Dr Rakov. He said, “I seen a friend in trouble, I pulled out a knife and stabbed a guy two times.” He added, “He was fighting with this guy, Ishmail.” He told Dr Rakov that he had been affected by alcohol and methamphetamine and “wasn’t thinking”. He said that he had a knife on him at the time because of his persistent paranoia, which had been present in varying degrees since the age of thirteen.
Progress in prison
Mr Gurlu told Dr Rakov that prison had been “quite hard” for him because of his reaction to his offending as previously described. He said, “I want to go home to my family.” He told her that his intentions were to “stay on my medication and stay away from alcohol [because] alcohol makes me violent.”
He said that his parents and siblings were supportive and that he spoke to them every few days on the phone. He said he asked them to keep their visits to monthly, as it was “stressful” when they visited. He said, “My mum starts crying, then my dad starts crying, then everyone is crying.”
At the time of seeing Dr Rakov, Mr Gurlu had been at the Metropolitan Remand Centre (“MRC”) for about thirteen months. He said that, during that time, he had not been involved in any altercations and had not been made subject to time on the management unit.
He told Dr Rakov that he largely keeps to himself, except for one Irish friend, and that he was working in “nuts and bolts” for eight dollars a day.
With Mr Gurlu’s consent, Dr Rakov spoke with MRC psychiatrist Dr Nicholas Hughes on 4 November 2022. Dr Hughes said that he had reviewed Mr Gurlu in September 2021[7] and that he had been reviewed intermittently since then by psychiatric nurses. There had been no concerns regarding a relapse of psychotic illness. Dr Rakov suggested a review of Mr Gurlu’s mood state may also be warranted. Dr Hughes said that he intended to review Mr Gurlu in the coming weeks, given the combination of his serious mental illness and his serious offence.
[7]This date must be an error, as Mr Gurlu was not arrested and received into the prison system until 8 October 2021. However, nothing turns on it.
Opinions and recommendations
Towards the end of her report, Dr Rakov offered opinions and recommendations in response to questions raised by Mr Gurlu’s solicitors.
Dr Rakov explained that Mr Gurlu’s intellectual disability is a permanent condition. Whether that disability is related to a birth injury or is neurodevelopmental, however, is unclear.
Mr Gurlu has had a diagnosis of schizophrenia since he was a teenager. This too is a permanent condition, and is oftentimes degenerative. In Dr Rakov’s view, any periods of untreated psychosis historically may have contributed to the well-established phenomenon of psychosis-related cognitive impairment (i.e., impairment of executive functioning such as working memory, flexible thinking, and self-control). This, however, is not necessarily discernible from a primary intellectual disability.
In Dr Rakov’s opinion, Mr Gurlu has demonstrated longitudinally impaired judgment and impulse control, which he identifies becomes prominent in the context of alcohol use (in particular).
In Dr Rakov’s view, Mr Gurlu functions socially and intellectually at a level below peers without intellectual disability or serious mental illness in the community. His limitations are enduring and were, at the time of the offending, likely exacerbated by substance use.
Mr Gurlu has long carried a knife with him, as a result of what he describes as a consistent state of paranoia. In Dr Rakov’s view, it may be that, if not for the paranoia, he would not have had a knife on his person. Beyond this, however, Dr Rakov did not consider that she had a basis for opining that there was a causal connection between any impairment of his mental functioning and the offending in question, as his actions do not suggest he was labouring under the burden of active psychosis.
As for how his conditions may affect him in the future, Dr Rakov said that Mr Gurlu’s intellectual disability will persist. In terms of identifying any specific domains of deficit, this could be determined with neuropsychological testing. Any effect of Mr Gurlu’s schizophrenia will remain subject to his participation in a treatment regimen, and any influence of any stressors or substance use.
Dr Rakov was asked whether Mr Gurlu’s conditions would be likely to affect his ability to cope with imprisonment. She said that his presentation is informed by schizophrenia and intellectual disability, which might mean that he would be less able to cope with imprisonment than someone without these diagnoses. Broadly, in her view, the way his mind interprets and processes information is likely to inform any difficulty he experiences in prison.
As for whether his condition would be likely to deteriorate in prison, Dr Rakov reiterated that Mr Gurlu reports poor sleep and ruminative cognitions whilst in custody but has not had a relapse of his psychotic illness for over a year so far. She said that stress in general is a risk factor for a mental state deterioration, which is more likely to occur in someone with a serious mental illness than otherwise.
As for future treatment, Dr Rakov noted that Mr Gurlu has previously intermittently received, and currently receives, antipsychotic medication. This, in her view, appears to be treating his psychotic illness adequately, as confirmed by the longitudinal nursing assessments he has undergone in custody. He does, however, present with a flat emotional state, and Dr Rakov understands that Dr Hughes is going to be assessing him in coming weeks.
As for the management of his conditions in future, Dr Rakov explained that schizophrenia is manageable but not treatable, and that Mr Gurlu will never be free of it. Substance use is problematic both in itself and because it can inhibit rehabilitation when afflicted with a psychotic disorder. As he did with Dr Brennan, Mr Gurlu was able to convey to Dr Rakov insight into the problematic role of substance use in his life but has not been able to exercise this view consistently. In Dr Rakov’s opinion, he would be well-served to pursue abstinence, and receive support, for both his mental health and to reduce the likelihood of re-offending.
Any ongoing symptoms of schizophrenia can be managed with antipsychotic medication. This can be managed through psychiatric services in custody (namely, Forensicare) and by an area mental health service in the community. In Dr Rakov’s view, Mr Gurlu should receive ongoing education about his illness for reinforcement.
Dr Rakov also opined that the presence of intellectual disability can make navigating all of the foregoing more difficult for Mr Gurlu. Additional support by appropriately trained clinicians will be necessary for his recovery. Long term, in her opinion, there may be a role for a dual diagnosis service (for example, residential treatment facilities).
Finally, Dr Rakov offered that, despite his limitations, Mr Gurlu does not display any psychiatric obstruction to expressing remorse, which he does freely. She also observed that, at the assessment, he was quite affected by the offending.
Mitigating factors
Admissions
I turn then to the factors on which Mr Smallwood relied in mitigation of sentence, commencing with Mr Gurlu’s admissions to police.
As we have seen, Mr Gurlu admitted that it was he who stabbed Mr Hall. Moreover, he did not seek to minimise what he had done or rely on any potential defence of accident or defence of himself or another. It is also apparent from the interview that he was emotional and troubled about what he had done.
Pleas of guilty
Mr Gurlu’s admissions are also related to, and consistent with, his pleas of guilty. Those pleas are, in my view, a very important factor in mitigation, for the following reasons.
First, while his admissions largely made the case against him on manslaughter, Mr Smallwood explained that, in pleading guilty, Mr Gurlu eschewed the possibility of having his interview excluded from evidence on the basis that it was conducted unfairly because, despite his intellectual disability, there was no independent third person present at the interview. Further, as Mr Rochford explained, several of the potential witnesses at the unit on the night in question, including Mr Sozman, refused to make statements. While Mr Drozdan and Mr Ayiik did make statements, neither actually saw the stabbings or the precise circumstances in which they occurred. Thus, Mr Gurlu might well have run a trial and put the prosecution to its proof on homicide.
Second, Mr Gurlu offered to plead guilty to manslaughter prior to the committal hearing. That offer was rejected at first but accepted only after the committal. In particular, after the committal, Mr Gurlu offered to plead guilty to manslaughter and recklessly causing injury. The Director then filed a trial indictment, a summary of prosecution opening, and a notice of incriminating conduct. Mr Gurlu filed a defence response. Subsequently, the Director informed him that, in satisfaction of the proceedings, guilty pleas to intentionally causing injury and manslaughter would be accepted. Mr Gurlu advised that he would plead guilty to those charges. He also sought confirmation that the Director could not, and would not, allege that he knew anything about the lighting of the fire before it occurred. The Director confirmed that there was no evidence that he had any knowledge of the fire beforehand.
Third, it follows that the committal could have been avoided, had the Director accepted the plea offer earlier. The committal involved cross-examination of three witnesses — Mr Drozdan, Mr Ayiik, and the informant. At that time, it must be remembered, Mr Gurlu was facing a murder charge. Thus, the weight to be given to his pleas cannot be reduced by reason of his taking that course at the committal.
Fourth, those pleas are of utilitarian value in that they have obviated the need for what would have been a stressful trial occupying valuable court time and resources.
Fifth, the pleas were entered during the currency of the COVID-19 pandemic. This rendered them “worthy of greater weight in mitigation than [similar pleas] entered at a time when the community and the courts are not afflicted by the pandemic’s effects”.[8]
[8]Counsel referred to Worboyes v The Queen [2021] VSCA 169 at [39] (per Priest, Kaye and T Forrest JJA).
Finally, I am satisfied that Mr Gurlu’s pleas of guilty reflect, and are accompanied by, an acceptance of responsibility, a willingness to facilitate the course of justice, and remorse.
Remorse
This brings me separately to the latter issue just mentioned, that of remorse, which is also a standalone mitigating factor.
I am satisfied that Mr Gurlu is genuinely remorseful for his offending. He properly recognises the grave harm he has caused — not only by taking the life of another but also the impact that that crime has had on Mr Hall’s family.
In my view, this finding is inevitable in light of his admissions; what he said and his presentation at the police interview; his pleas of guilty and the circumstances in which they were offered and entered; his remarks to Dr Rakov and the opinion she formed; and the remarks of his sister Elif Gurlu in her character reference, which was received in evidence without objection.
Hardship of custodial conditions during pandemic
The next matter is that Mr Gurlu has spent his time in custody since arrest in October 2021 in prison conditions more onerous than usual because of the restrictions resulting from the pandemic. It is well understood now that those in custody during the last two-and-a-half years have spent more time in their cells, had more limited access to programmes and had restrictions on family visits. Further, there has been the ever-present concern of contracting the virus in prison conditions. All of this makes time in custody harder than usual.
Hardship of imprisonment because of intellectual disability and schizophrenia
Mr Smallwood also relied on the opinion of Dr Rakov to support his submission that, because of Mr Gurlu’s intellectual disability and his schizophrenia, imprisonment is likely to weigh more heavily on him than it would on a person who does not suffer these afflictions.
Mr Rochford submitted that Dr Rakov opined only that his conditions “might mean that he would be less able to cope with imprisonment than someone without these diagnoses”. Ordinarily, a mitigating factor must be established by an offender on the balance of probabilities, whereas the use of the word “might” does not appear to meet that test, so the argument went.
As Mr Smallwood pointed out, when summarising the ways in which impaired mental functioning (whether temporary or permanent) may be relevant to sentencing, the Court of Appeal in R v Verdins put the fifth of those ways in these terms:[9]
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
[9]R v Verdins (2007) 16 VR 269 at 276[32] (per Maxell P, Buchanan and Vincent JJA) (my emphasis).
Thus, it may be that, by using the word “might”, Dr Rakov was doing no more than picking up the language of Verdins rather than offering an opinion that this outcome was less than likely.
Further, Dr Rakov went on to say in this connection that, broadly, in her view, the way Mr Gurlu’s mind interprets and processes information is likely to inform any difficulty he experiences in prison.
Thus, in any event, I am satisfied, on all the evidence, including Dr Rakov’s opinion, that it is likely that, because of Mr Gurlu’s intellectual disability and his schizophrenia, imprisonment will weigh more heavily on him than it would on a person who does not suffer these conditions. It strikes me as inevitable that a person who, because of paranoia resulting from schizophrenia, has slept with a knife under his pillow and has slept beside his mother from the age of sixteen, and who has spent most of his time playing video games, “all day, every day”, would find imprisonment especially burdensome.
Impaired judgment and impulse control
Again, in reliance on the opinion of Dr Rakov, Mr Smallwood submitted that it was relevant that, as a result of his intellectual disability and schizophrenia, Mr Gurlu “has demonstrated longitudinally impaired judgment and impulse control, which he identifies becomes prominent in the context of alcohol use (in particular)”.
As I understood the submission, it was said that the impact of these afflictions on his judgment and impulse control, when coupled with the paranoia that explains his behaviour in carrying a knife in the first place, while not mitigating his moral culpability, may help to explain his otherwise inexplicable actions in stabbing Mr Hall and cutting Mr Drozdan.
It will be remembered, however, that Dr Rakov did not consider that she had basis for opining that there was a causal connection between any impairment of his mental functioning and the offending in question because, in her opinion, his actions do not suggest he was labouring under the burden of active psychosis.
Further, Mr Smallwood accepted that Mr Gurlu was aware, and admits, that intoxication and drug use predisposed him to violence.
Thus, those same factors suggested that there may be a need to protect the community from Mr Gurlu’s behaviour.
In the end, I see these considerations as wholly offsetting each other. Ultimately, I understood Mr Smallwood to accept that this view was open.
Prospects of rehabilitation
Finally, I turn to Mr Gurlu’s prospects of rehabilitation.
On the one hand, the nature of his crimes, his history of mental illness, his history of drug and alcohol use, and his criminal history, especially for offences of violence, suggest rather poor prospects of rehabilitation.
On the other hand, there are several matters that point to much stronger prospects. For example, the remarks made by Mr Gurlu’s sister in her reference are promising. Among other things, she said this:[10]
[10]I have edited the reference in minor ways.
Whenever Emre had attended court in the past, I would refuse to write a character reference for him as I was of the belief that he never took his sentence/outcomes seriously. Due to this attitude …, my belief was that Emre would never learn from his mistakes, and [my] providing a character reference to benefit him would feel disingenuous. However, with the unfortunate and tragic case that Emre currently finds himself in, I wanted to submit my character reference for consideration.
Emre has always been known in the family as a gentle giant: unattractive and intimidating but a heart of gold towards his family and loved ones with kindness as his top quality. Emre loves his family unconditionally but in particular he has a soft spot for all his nieces and nephews. Despite being unemployed, he will buy them gifts any chance he gets with whatever money has and always makes time for them when they are around. …
Emre has been in custody for well over a year and, since this time, I have spoken to him whenever he has had the opportunity to call. From the first conversation we have had to the last, I can honestly say that Emre has changed ... [I] believe this unfortunate and tragic incident has finally opened his eyes. This is evident … in the things he says to me and the tone in which he says them. I feel and know that Emre is full of remorse, as he continually speaks of his regret and sorrow for what he has done and all the people in his life that he has let down and disappointed. [In the] events leading up to the tragic incident, Emre was unfortunately hanging around with the “wrong” people and started using methamphetamine. This combination … had a significant negative effect on Emre as a person.
… Emre and all of his family wish that this tragic and sad incident never happened. Emre has the love and support of all his family and friends. We truly believe that this tragic incident was the turning point in Emre’s life. He has realised the severity of his actions and he never wants to put anyone, himself included, in these situations again. He can finally see that this is not the life he wants to lead and [he] wants to make his family and friends proud.
Further, there are Mr Gurlu’s admissions, pleas of guilty and early offer to do so, his remorse, his acceptance of the need for and efficacy of antipsychotic medication, his expressions of willingness to reform (which I accept), and the support he enjoys from his family. These factors point to much stronger prospects of reform.
Balancing all of these competing matters, I am satisfied that Mr Gurlu’s prospects of rehabilitation are at least reasonable, and may even be described as good.
Sentencing purposes
At this stage, it is necessary to say something more about the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
In my view, general deterrence, specific deterrence, denunciation, protection of the community and just punishment are all, to a greater or lesser degree, important sentencing purposes in this case, particularly for the manslaughter.
All in the community should understand that the carrying and use of knives can lead to tragic outcomes of the kind that occurred here. Homicidal conduct of the type engaged in by Mr Gurlu is denounced by the courts and will result in a term of imprisonment that reflects, among other things, that a person’s life has been taken by serious and dangerous acts of violence and that, in this case, the lives of Mr Hall’s loved ones have been marred forever in consequence. The same remarks, with necessary adaptation, apply to Mr Gurlu’s offence of intentionally causing injury.
Notwithstanding the part that his intellectual disability and schizophrenia may have played in his previous offending, that Mr Gurlu has prior convictions for violence that have resulted in prison sentences renders specific deterrence and protection of the community significant sentencing purposes.
On the other hand, it was accepted by Mr Rochford that the need for general and specific deterrence is moderated, albeit only to a modest degree, by the fact that Mr Gurlu suffers from an intellectual disability and schizophrenia.
Further, I think that the importance of specific deterrence as a sentencing purpose is reduced in light of Mr Gurlu’s admissions, pleas of guilty, and remorse.
In my view, rehabilitation remains an important purpose in fixing sentence. There are at least two groups of reasons why. First, that Mr Gurlu has reasonable to good prospects of rehabilitation means that rehabilitation is a sentencing purpose that must be afforded substantial weight. Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Eventually, Mr Gurlu will be returning to the community. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximised, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be, and his chances of successful reintegration into society are as strong as they can be. In my view, while his prospects of rehabilitation are relevant to all aspects of the sentence, those prospects are entitled to additional weight when considering the appropriate non-parole period.
The common law principle of parsimony is reflected in s 5(3) of the Sentencing Act, which, relevantly, 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”. It is a fundamental principle, sometimes forgotten. I have applied this principle in considering the appropriate sentences in this case.
Current sentencing practices
Introduction
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter and for intentionally causing injury. Such practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.
Sentencing statistics for manslaughter
Sentencing statistics show that in respect of prison sentences for manslaughter imposed in this State for the period from 2015-16 to 2019-20:[11]
[11]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 249, April 2021, pp 3-5.
a) they ranged in length from about one-and-a-half to 13 years;
b) the average (or mean) term ranged from just over seven years in 2015-16 to nine years and six months in 2018-19;
c) the average term over the whole period was eight years and five months and the median and the mode were nine years; and
d) non-parole periods ranged from two to ten years, the median was six years, and the mode was five years.
These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations — such as the form of manslaughter, the gravity of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, the age of the accused, and so on. Nevertheless, they do give some guidance.
Sentencing statistics for intentionally causing injury
Turning to intentionally causing injury, sentencing statistics show that in respect of sentences imposed in the higher courts for that offence for the period from 2016-17 to 2020-21:[12]
[12]Sentencing Advisory Council, Sentencing Snapshot: Causing injury intentionally, No 265, December 2021, pp 2-5.
a) in 74 percent of cases, a prison sentence was imposed;
b) those prison sentences ranged in length from less than one year to five years; and
c) the average (or mean) term ranged from one year and five months in 2017-18 to two-and-a-half years in 2020-21.
Case comparisons
Sometimes, case comparisons may assist in gauging current sentencing practices. However, no two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. As it happens, I was unable to find any cases of manslaughter or intentionally causing injury usefully similar to this one. Nor, presumably for the same reason, did counsel refer me to any.
Nevertheless, I found my general survey of sentences imposed for the two offences before the Court, and the reasons given for imposing sentence in those cases, instructive in gauging both the order of sentence imposed for manslaughter, and for intentionally causing injury, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.
I should add that, in considering sentencing practices for manslaughter, I have borne in mind that the vast majority of sentences I examined (and all of those included in the statistics mentioned a moment ago) were imposed in cases where the previous maximum penalty of 20 years’ imprisonment applied, not the new maximum of 25 years’ imprisonment, which applies in this case.
Sentence
I turn now to impose sentence. Please stand, Mr Gurlu.
As I have said, I regard this as a serious example of manslaughter, which now carries a higher maximum penalty than previously. In a two-on-one attack that arose out of nothing, Mr Gurlu took a dangerous weapon and stabbed Mr Hall twice to a vulnerable part of his body. He must have intended to cause at least some significant injury and, I think, must have been reckless as to causing serious injury. Further, while panic may explain his subsequent actions, it was still callous and morally wrong to flee without offering any assistance to the gravely injured Mr Hall. Inevitably, Mr Hall’s loved ones are devastated at their loss and the circumstances in which he died.
Also, we have seen that Mr Gurlu is no stranger to the criminal justice system. He has been imprisoned previously, including for offences of violence.
Pulling in the other direction are his admissions, pleas of guilty, and remorse. As I have said, I accept that his intellectual disability and schizophrenia mean that imprisonment is likely to weigh more heavily on him than it would on a person without these conditions. Further, he has been imprisoned in difficult conditions because of the pandemic. Finally, as I have said, I accept that his prospects of rehabilitation are reasonable to good.
Balancing all of the foregoing matters, I have determined that Mr Gurlu is to be sentenced as follows:
On Charge 2, the manslaughter of Mr Hall, Mr Gurlu is convicted and sentenced to ten-and-a-half years’ imprisonment.
On Charge 1, intentionally causing injury to Mr Drozdan, Mr Gurlu is convicted and sentenced to eighteen months’ imprisonment.
While these were separate offences, they were committed very close together in time. Mr Smallwood accepted that there should be some cumulation between the individual sentences. I agree.
In those circumstances, and having regard to the principle of totality, I direct that six months of the sentence for the offence intentionally causing injury be served cumulatively upon the sentence for the offence of manslaughter, making a total effective sentence of eleven years’ imprisonment.
Given Mr Gurlu’s mental health and intellectual conditions, I consider that his ultimate reintegration into the community and reform will have better prospects of being enhanced if he has the opportunity for the support and supervision that a substantial period on parole could provide. If this occurs, it should redound to the benefit of the community in the longer run as well.
Having regard to those matters and all of the other matters discussed, I have determined to fix a non-parole period of seven-and-a-half years.
In my view, this non-parole period, like the total effective sentence, also meets all of the purposes of sentencing, including both the punitive purposes and the rehabilitative purposes.
Pursuant to s 6AAA of the Sentencing Act, I am required to declare the sentence I would have imposed absent Mr Gurlu’s pleas of guilty. This is always a difficult task, because, among other things, the absence of pleas of guilty can affect other sentencing considerations, such as remorse and prospects of rehabilitation. Further, Mr Gurlu’s admissions to stabbing Mr Hall very much made the case against him on manslaughter, yet the admissibility of that evidence might have been challenged at trial. The task is also complicated by the fact that, when facing a murder charge, he offered to plead guilty to manslaughter prior to the committal, but that offer was rejected. Thus, it is difficult to separate the importance of those admissions and that offer from the weight to be given to his pleas of guilty.
Nevertheless, doing the best I can, I can say this. Had Mr Gurlu not offered to plead guilty at all, and had he instead pleaded not guilty and been acquitted of murder but convicted at trial of the offences to which he has pleaded guilty, I estimate that I would have imposed a total effective sentence in the order of fourteen years’ imprisonment with a non-parole period of up to eleven years.
Pursuant to s 18 of the Sentencing Act, I declare that Mr Gurlu has served 440 days in custody, including today, under this sentence.
I also make the disposal and forfeiture orders sought by the Director, to which there was no opposition by Mr Gurlu.
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