No.
1407
of
2004
- Hasan Huseyin Alipek has been convicted of kidnapping and the
attempted murder of Hulya Cavus. Jason Maxwell Saltmarsh has been
convicted of
intentionally causing serious injury to Hulya Cavus. It falls to me to
sentence them.
The Facts
- At the time of the offences, Hulya Cavus was 37 years old and
had been married. She was working as the manager of a car detailing
company
located in the Jam Factory in Prahran and she lived with two of her three
children in a flat in Elwood. By all accounts,
she was an energetic,
attractive and considerate woman.
- Some two years before the offences, Hasan Alipek obtained a job
as an attendant in a commercial car park close to the car detailing
business.
He had then not long come to this country from Turkey and his ability to speak
English was limited. He had no family in
this country and understandably,
perhaps, he had very few friends or associates.
- Hulya Cavus is of Turkish extraction and fluent in the Turkish
language, and one way or another she and Alipek came into contact
through an
arrangement between the car park and the car detailing business to refer
customers to each other. Once she got to know
Alipek she offered him
friendship and an entrée to her circle of Turkish and other friends, and
she and her close friend Selin
Sir endeavoured to assist Alipek with several
accommodation and financial problems he was then facing.
- From Hulya Cavus' point of view the relationship was Platonic.
From Alipek's point of view it should have been something more.
After a while
he began to change in the way that he behaved towards her and about six months
before the offences he proposed marriage
to her on several occasions. On each
occasion she declined his proposal and made plain that she wanted nothing more
than friendship.
But Alipek was not inclined to take no for an answer.
- At one point Alipek determined that he would see her no more
and he asked her friend Selin Sir to ensure that she understood that
to be so,
but inevitably they came to see each other from time to time through the group
of friends with whom they associated. As
time went on Alipek started to keep
watch on Ms Cavus' activities and said to her things such as that he knew where
she had been
the previous evening and he knew with whom she had been.
- One of Hulya Cavus' friends was a lady named Nabuvat Kar. She
and Hulya Cavus met while playing bingo at a venue in Prahran. On
9 September
2002 Alipek moved in with Nabuvat Kar to a flat she was renting. It was not
proposed that they live as man and woman
together, and they did not. The
arrangement was to share the costs of accommodation and provide each other with
the support of someone
else in the house. But the arrangement did result in
both Alipek and Hulya Cavus being invited to Nabuvat Kar's birthday party on
the evening of 5 October 2002.
- Jason Saltmarsh came onto the scene some six months before the
time of the offences. He was then in receipt of a disability pension
for
injuries which he had suffered while working on a building site, and he was
living in the back of his car and sleeping in car
parks. Hasan Alipek
befriended him and provided him with food and cigarettes and introduced him
into the circle of Turkish friends
into which Alipek had been invited by Hulya
Cavus. The degree of contact appears not to have been great, but on one
occasion in
August 2002 Saltmarsh went out to dinner at a restaurant with
Alipek, Selin Sir, Hulya Cavus and others.
- During the week leading up to 5 October 2002 Nabuvat Kar
invited a number of people to join her that night for dinner at Nazar's
Restaurant in Brunswick. Nazar's is a Turkish restaurant and popular with
Turkish speaking people. Those invited included Selin
Sir, her partner, Hakan,
one of Selin Sir's female friends, Hasan Alipek, Jason Saltmarsh and Hulya
Cavus.
- Hasan Alipek and Jason Saltmarsh drove Nabuvat Kar to the
restaurant in Alipek's car and were the first of the party to arrive,
at about
9.00 pm. Selin Sir and her partner and her friend came in Hakan's car and were
the next to arrive, shortly after Nabuvat
Kar. Hulya Cavus drove to the
restaurant in her own car and was the last to arrive, at about 9.30 pm. Alipek
brought a bottle of
Raki, which is a Turkish spirit similar to Ouzo and with an
alcoholic concentration similar to that of Scotch whisky. Hakan brought
a
bottle of Scotch whisky and Hulya Cavus brought a bottle of white wine that she
had purchased on the way to the restaurant. By
all accounts the party was a
happy and bibulous occasion. Apart from the food and the drink, there was live
entertainment and traditional
Turkish dancing as well as what was described in
evidence as western European dancing. A number of photographs taken during the
evening show that all in attendance appeared to enjoy the night. Towards the
end of the evening there was some discussion as to
whether anyone wished to go
on to another venue after the restaurant closed, but all present said that it
was their intention to
call it a night and to go home to bed.
- The party finally broke up at about 1.00 am and each of the
three groups left as they had come. Hakan drove Selin Sir home and
stayed
there. Hulya Cavus drove herself towards home, but decided on the way that she
would drop in at Monsoons night club in the
Grand Hyatt Hotel. That
establishment is popular with people of Turkish ethnicity and Ms Cavus was a
member and likely to find a
number of her friends. Hasan Alipek and Jason
Saltmarsh drove Nabuvat Kar home to her flat in Richmond. On the way they
purchased
a slab of twenty four cans of Victoria Bitter. But they declined
Nabuvat Kar's invitation to come in for a drink and to stay the
night. Hasan
Alipek told Ms Kar that he had somewhere else to go and something else to do.
- From Nabuvat Kar's flat, Jason Saltmarsh drove the car with
Hasan Alipek as passenger to a point in Elwood just outside Hulya Cavus'
flat.
Hasan Alipek there observed that Hulya Cavus had not gone straight home as she
said that she would, and he became both angry
and jealous because he thought it
likely that she would be associating with other men at Monsoons nightclub.
Alipek then directed
Jason Saltmarsh to drive to the corner of Russell Street
and Flinders Lane in the city, which is close to Monsoons, and after
instructing
Saltmarsh to wait he walked into the club.
- Inside he found Hulya Cavus standing close to the bar talking
to a number of Turkish men, including a man called Cenk Tekin. Alipek
moved
straight up to her and in an angry manner pushed Tekin aside and told him to
"fuck off". He then said to Hulya Cavus in Turkish
that she should not be
there and that he was going to take her home, and when she said that she did
not want to go home Alipek grabbed
her by the wrist and said that the car was
waiting outside and that she was going to come with him and that if she did not
come with
him he was going to kill her.
- From the nightclub, Hulya Cavus went with Alipek into the
hotel lobby where she sat on a couch near to the porter's desk and endeavoured
to quieten Alipek down. He refused, however, to be placated. He stood over
her in a threatening manner which is visible in security
camera videotape
footage tendered in the course of the trial and despite Hulya Cavus making
plain that she did not wish to go anywhere,
after a few moments he grabbed her
again by the wrist and said to her: "Come on, I am taking you home."
- Hulya Cavus tried to pull her wrist away and said to Alipek
that she did not want to go home. But he would not take no for an answer.
He
said to her: "No, no, you are coming with me, I am going to take you home" and
he pulled her by the wrist out of the lobby and
out of the hotel.
- From the hotel Alipek pulled Hulya Cavus by the wrist down
Russell Street to Flinders Lane where Jason Saltmarsh was still waiting
in the
car as instructed. Saltmarsh was seated behind the wheel and by the time that
Alipek and Ms Cavus reached the car he had
the engine running. Alipek opened
the rear offside door of the car and pushed Hulya Cavus into the back seat and
closed the door
behind her, and then moved rapidly around to the nearside rear
door and into the rear seat next to her. Immediately he was inside
he
instructed Jason Saltmarsh: "Go, go, you know where to go, Jason, just go", and
Jason Saltmarsh drove off as instructed.
- Hulya Cavus was by now scared and confused. She did not know
what was happening, except that she did not want to go with Alipek.
But Alipek
was very angry. He told her that she should not have been at the nightclub and
when she replied that she did not know
what he was talking about he hit her in
the face and on the chest. She begged to be let go but Alipek rejected her
pleas, saying
to her in Turkish: "No, you are coming" and "I am going to take
you to your death road" and "There is no going back now" and "This
is it, this
is your one way." As he spoke he hit her, fisting into her face and punching
into her chest, hurting her and causing
her nose and lip to
bleed.
- Hulya Cavus appealed in English to Jason Saltmarsh for
assistance. She called out to him to stop and look at what Hasan Alipek
was
doing to her and to turn back. But Saltmarsh said that he did not want to get
involved and that he was just doing as he was
told. She appealed again to
Alipek in Turkish, imploring him to stop what he was doing to her. But he
responded with more violence.
She asked him in Turkish to consider that she
had children to look after. His only response to that, however, was to say
that there
was no need to worry about her children because he would look after
them. She implored him in Turkish to see that what he was doing
was wrong and
to stop lest he finish up in gaol. But again Alipek responded with more
violence and he told her in Turkish that he
was going to kill her and that this
was her "death bed" and a "one-way ticket".
- Hulya Cavus appealed once more to Saltmarsh in English. She
pleaded with him again to turn back, to stop it, and she begged him
to be the
one to help her. But he would not. He told her again that he was just the
driver and doing what he was told, and at that
point Alipek, told Saltmarsh:
"Don't talk to her. Just do as you're told", and said again to Hulya Cavus in
Turkish: "This is it.
This has gone too far. This is your death road. There
is no return. You can't go back."
- Saltmarsh drove the car north up the Hume Highway until they
reached the Broadford turn off and then along the Broadford Strath
Creek Road
until they reached a dirt road called Cunningham's Road, into which he turned
to the west. It was dark and there was
no one around. The area was well out
into the country among a mixture of tree plantations and pastures and it was
remote and isolated.
There he stopped the car at the side of Cunningham's Road
a short distance from the Broadford Strath Creek Road.
- Alipek kept Hulya Cavus in the back seat of the car and
continued to berate and threaten her in Turkish. Saltmarsh got out of the
car
and smoked and drank beer for a period of time, probably at some distance from
the car. Upon Saltmarsh's return to the car Alipek
told him to get a five
litre can of petrol which was kept in the boot of the car. Saltmarsh did as he
was asked and handed the can
of fuel in through the driver's door between the
front seats to Alipek. As he did that, Hulya Cavus again asked Saltmarsh to
help
her, but once more he said that he did not want to get involved and he
closed the door on her plea. From there he walked some distance
away from the
car back towards the Broadford Strath Creek Road where he stood awaiting the
next development.
- Moments later, Alipek unscrewed the child-proof safety screw
lid from the can and tipped petrol out of the can over Hulya Cavus'
head, so
that it ran down her face and shoulders, along her upper back, and down her
arms and clothes to the seat where it pooled
below her buttocks. Then he set
her alight with a cigarette lighter and stepped out of the car and closed the
door behind her, leaving
her in flames, screaming inside the
car.
- Fortuitously, some of the petrol had come in contact with
Alipek's clothes and it caught alight as he exited the car. That brought
Saltmarsh running back to assist Alipek to douse the flames on his body, and as
that was occurring Hulya Cavus managed to exit the
car while still in flames
and then to roll herself in a large puddle close to the near side of the car
until the flames on her body
were extinguished.
- Hulya Cavus was critically injured. All of her upper garments
except for her brassiere had been destroyed by the fire. She had
forty percent total body surface area burns to her hair, face, head, neck,
upper chest, back of body, arms and buttocks. Part of
one ear had been
completely burned away. Thirty-five percent of her burns were full
thickness through the epidermis and dermis,
down to and into the sub-cutaneous
fat. Areas of burning and soot from around her face and her airways had also
been inhaled into
her respiratory system. She was barely alive and in extreme
pain and she was passing in and out of consciousness.
- Alipek had also been injured but his injuries were not as
great. His shirt had been damaged by fire on the sleeves, the result
of petrol
having run down his arms as he poured it over Hulya Cavus. He too had burns to
his hands, arms, upper chest and around
his neck and left armpit, but they were
much less severe and less widespread. He also had burns to his arms and hand
and a small
area of his upper chest and torso; about twelve percent of his
total body area of which nine percent were full thickness.
- Saltmarsh took off his shirt and put it over Hulya Cavus to
cover her. The three of them then walked back down the Broadford Strath
Creek
Road towards Broadford for some hundreds of metres until Saltmarsh managed to
flag down a passing utility. The driver took
the three of them to the Kilmore
Hospital, with Hulya Cavus crouched against the dashboard in agony and Alipek
next to her pleading
in Turkish to say that the fire had been an accident, and
with Saltmarsh riding behind in the load compartment with the driver's
jacket
for cover.
- At the Kilmore Hospital, Hulya Cavus and Alipek received
immediate first aid until Hulya Cavus was taken by air ambulance to the
Alfred
Hospital and Alipek was taken by road ambulance to the Northern Hospital at
Epping. He recovered quickly and completely,
but not so Hulya Cavus. She
spent two months in the Alfred Hospital, for the first two weeks intubated in a
drug induced coma and
the remainder undergoing surgery and other treatment. On
the day of admission she underwent emergency surgery to relieve pressure
around
her arm and was admitted to the intensive care unit and in the following weeks
she underwent a series of operations in which
the fully burnt areas of skin
were debrided and sound tissue was harvested from other areas of her body and
then grafted onto the
debrided burnt areas. After two months in hospital she
was required to spend still further time in a rehabilitation facility and
she
has since undergone more surgery and is still to have more to ease a
restriction of neck movement suffered as a result of burning.
She remains in
pain and despite the remarkable quality of the surgery that has been performed
upon her, she will remain to some
extent permanently disfigured. The victim
impact statements prepared by both her and her sister leave no doubt that she
has suffered
terribly and that she will continue to suffer for the rest of her
life.
Nature and gravity of the offences
Hasan Alipek
(i) Attempted murder
- Hasan Alipek, the maximum penalty for the offence of attempted
murder is twenty-five years imprisonment[1] and
the attempted murder of which you have been convicted is a bad case of the
offence. Your crime was motivated by jealousy and
anger towards a woman who
showed you nothing but kindness and consideration, and it was committed for no
better reason than that
you could not have her as your own. I am not sure that
it was premeditated. Despite the evidence consistent with premeditation,
I
accept the submission made on your behalf that it may have been a spur of the
moment decision. But premeditated or not it was
cold and calculated and it was
executed by means so brutal as to be beyond the understanding of most civilised
human beings. You
caused Hulya Cavus indescribable pain and terror and you
have left her permanently disabled and disfigured. In my judgement your
crime
warrants condign punishment[2].
(ii) Kidnapping
- There is no maximum penalty for the offence of kidnapping of
which you have been convicted.[3] But I regard
your offence of kidnapping Hulya Cavus as a serious case of kidnapping. It may
well have been the result of a spur
of the moment decision to seize her and
detain her once you realised that she had not gone home from Nazars. But it
was aggravated
by the way in which you treated her in the car on the way to
Broadford, by hitting her and threatening her that the trip was a one-way
ticket and that it was to be her death trip. I am satisfied beyond reasonable
doubt that you caused her serious injury before you
reached Broadford and that
you caused her fear and confusion by the things which you said and did.
(ii) Jason Saltmarsh - Intentionally causing
serious injury
- Jason Saltmarsh, the offence of intentionally causing serious
injury of which you have been convicted is also a serious crime.
It carries a
maximum penalty of twenty years imprisonment[4]
and I regard your offence of intentionally causing serious injury as a serious
case of the offence.
- The Crown put its case against you on the basis that you were
guilty as having acted with common purpose to inflict harm on Hulya
Cavus or
that you aided and abetted Alipek in inflicting harm upon her. I proceed upon
the basis that you were convicted as an aider
and abetter. That the jury
acquitted you of the attempted murder of Hulya Cavus implies that they were not
satisfied that you knew
that Alipek intended to kill her. But it follows from
your conviction for intentionally causing serious injury that the jury were
at
least satisfied that when you handed the can of petrol into the car to Alipek
you knew that Alipek intended to use the petrol
to inflict serious injury on
Hulya Cavus and you intentionally assisted him or encouraged him to do so by
your presence and your
conduct. It is difficult to imagine harm more serious
than that which might be caused by tipping petrol over a human being and
setting
it alight. The evidence bears that out. The result of your offence
was to inflict frightful and lasting injuries on Hulya Cavus,
among some of the
most serious that can be imagined.[5]
Culpability and responsibility
(i) Hasan Alipek
- Hasan Alipek, you alone are responsible for the crimes of
which you stand convicted. You were not provoked in any way - as I have
said,
Hulya Cavus showed you nothing but kindness and consideration - and plainly
there could be no justification in any sense of
rejection you may claim that
you felt. Whatever you may have thought to be your rights over a woman you
desired, the community of
which you are now a member does not tolerate in any
degree the sort of conduct you engaged in. It has been said on your behalf
that
you had a considerable amount to drink on the night of the offence and
that you were so affected by drink that you had effectively
lost self control.
But I do not accept that the alcohol you drank mitigates your culpability. The
jury rejected the idea that you
were sufficiently affected by alcohol to be
incapable of forming an intent to kill Hulya Cavus, and so do I. The fact that
you were
able to conduct yourself as you did in Monsoons nightclub and in the
lobby of the hotel (as is shown in the security camera footage
tendered in
evidence) and as you did in the car on the way to Broadford (of which Ms Cavus
gave evidence), makes plain that you did
know what you were doing.
(ii) Jason Saltmarsh
- Jason Saltmarsh, as I have noted already the Crown put its
case against you on the basis that you had either acted in concert with
Alipek
or on the basis that you had aided and abetted Alipek, but I proceed upon the
basis that you were convicted as an aider and
abetter. The evidence was that
Alipek played a dominant role and that you spent the better part of the evening
attempting to stay
uninvolved. I assume that the jury judged you accordingly.
Consequently, I consider that your responsibility for the infliction
of injury
on Hulya Cavus is considerably less than Alipek's. That does not mean,
however, that your role was insignificant. Alipek
could not have done what he
did without your assistance. You needed only to refuse to get the petrol can
to derail his terrible
scheme but instead you proceeded on, as asked, in the
face of consequences that were obvious[6]. You
could not have doubted that whatever injuries Alipek had in mind were likely to
be frightful and yet you willingly and deliberately
assisted him to inflict
them.
Previous character
(i) Hasan Alipek
- Hasan Alipek, you were born on 6 June 1968 and are 35 years of
age. You lived with your parents and three siblings in Turkey until
the age of
18 years when you left home to find work in major cities. You completed some
amount of training in the electrical trade
and after undergoing military
service you joined a shipping company as a seaman. In 1998 you jumped ship and
applied for permission
to remain in this country as a political refugee. It is
said that you stand to be deported as a consequence of your conviction.
According to the evidence before me, you married in Turkey not long before
coming to Australia and had one child by the marriage
but your wife refused to
join you in this country and divorced you and kept your child with her in
Turkey. It is said that your
emotional state deteriorated as a consequence.
It was made worse by financial problems resulting from a serious gambling
problem
and the excessive consumption of alcohol. You were admitted to Royal
Park psychiatric hospital; later spending periods in Thomas
Embling Hospital
and St Paul's psychiatric unit while imprisoned for another offence.
- You did some factory work before obtaining a job as an
attendant in the car park in Prahran. You remained in that position working
long hours and earning up to $900 per week until you were remanded in custody.
But it is reported that your mental and emotional
problems have continued to
trouble you in recent years. Mr Bernard Healey, consultant clinical
psychologist, states that in discussions
you present as clearly paranoid about
events and people in your surrounds and that your psychological problems have
not been assisted
by the continued consumption of liberal quantities of
alcohol. Mr Healey further reports that he has consulted with Dr Tuck,
who
is the medical superintendent at the Port Phillip Prison, and she has
confirmed that you have been treated in the psychiatric unit
for what emerged
as paranoid episodes with concern on the part of the consultant psychiatrist
that you may become frankly psychotic.
Your symptoms seemed to settle when you
were prescribed anti-psychotic medication but Dr Tuck remains concerned that
you could decompensate
into psychosis at any time.
- On 1 February 1999 you were convicted before the Magistrates'
Court at Melbourne of one charge of causing serious injury recklessly,
for
which you were imprisoned for a period of 120 days and one charge of causing
injury intentionally for which you were sentenced
to be released on a Community
Based Order for a period of 12 months with special conditions to perform
100 hours of unpaid community
work and to participate in an anger management
course and undergo assessment and treatment for psychological problems. It is
of
some significance that the victim of that attack was one of your closest
friends in this country and that he has demonstrated his
support for you,
despite what you did to him, by attending court for your plea. Nevertheless,
in Mr Healey's opinion you remain
a disturbed and distressed man, suffering
psychotic episodes - certainly paranoid and persecutory features - exacerbated
by the liberal
quantities of alcohol that you have consumed. Mr Healey
considers that your judgement is obscured by your psychiatric condition
from
time to time and most likely was so obscured at the time of your offence on
6 October 2002.
(ii) Jason Saltmarsh
- Jason Saltmarsh, you were born on 29 September 1973 and are 30
years of age. You have never really known your father and in recent
years you
have had very little contact with your mother. After a brief education in the
State system you left school in year 8 at
the age of 15 years and you began
work as a storeman in a tile factory. But you were unable to hold down that
position for very
long and there followed a succession of short-term labouring
jobs until you were injured in a work related accident while working
for a
demolition company in 1995 or 1996. You sustained significant back and head
injuries and you have not since been able to work
on a regular basis. You have
been paid a disability pension since the time of the accident.
- You were married for some time and you have two children by
that marriage, but the marriage failed about one year after the accident
and
you have seen your children only three or four times during the last four
years. You have also suffered as a result of the death
of your sister from a
heroin overdose in 1998 or 1999 at the age of 25 and the death six months later
of your brother in a work related
accident; leaving you without siblings or
other family.
- At the time of the offence you were living as a homeless
person from the back of your car and you had been living in that fashion
for
the previous 12 to 24 months. At some stage in the course of that period
Alipek had befriended you and to some extent he supported
you with food and
cigarettes and companionship. He was, however, some eight years older than
you, and an apparently stronger personality,
and consequently you tended to
look up to him as a sort of father figure and to do as he asked. According to
Mr Jeffrey Cummins,
consulting clinical and forensic psychologist, you were
psychologically compromised and suffering from a chronic Adjustment Disorder
with Mixed Anxiety and Depressed Mood (DSM -IV-TR). Mr Cummins considers
that you should be receiving ongoing psychiatric/psychological
treatment and
antidepressant medication.
- Prior to this offence you had a lengthy but not very serious
criminal record. On 8 August 1991 you were convicted at the Magistrates'
Court at Moonee Ponds of possession of a drug of dependence and using a drug of
dependence and sentenced to pay fines totalling $400.
On 16 June 1992, you
were convicted before the Magistrates' Court at Preston of Failing to answer
bail and Receiving stolen goods
and you were sentenced to be released on a
Community Based Order for six months with a special condition to perform 75
hours of unpaid
community work. Then on 20 May 1993 you were brought up for
breach of the order and sentenced to prison for three months which was
wholly
suspended for a period of two years. On 7 June 1994 you were convicted before
the Magistrates' Court at Broadmeadows of Possession
of a dangerous article and
sentenced to pay a fine of $190. On 9 June 1995 you were convicted before the
Magistrates' Court at Broadmeadows
of Handling stolen goods and Damaging
property and sentenced to prison for six months which was wholly suspended for
18 months and
to be released on a Community Based Order for 12 months. Your
drivers licence was cancelled and you were disqualified from obtaining
a
licence for 12 months. On appeal to the County Court, you were sentenced to
prison for six months which was wholly suspended for
two years and your drivers
licence was cancelled and you were disqualified from obtaining a licence for a
period of four months.
On 21 January 1997 you were convicted before the
Magistrates' Court at Broadmeadows of driving a motor vehicle while having a
blood
alcohol concentration exceeding 0.05% and driving a motor vehicle whilst
unlicensed. You were sentenced to be released on a Community
Based Order for
six months with a special condition to perform 100 hours unpaid community work
and all drivers licences were cancelled
and you were disqualified from
obtaining a licence for a period of 20 months. On 15 June 1999 you were
convicted before the Magistrates'
Court at Broadmeadows of using threatening
words in a public place and sentenced to pay a fine of $250. On 1 March 2002
you were
convicted before the Magistrates' Court at Broadmeadows of theft,
refusing a preliminary breath test, two charges of driving a motor
vehicle in a
manner dangerous to the public, reckless conduct endangering a person and going
equipped to steal and you were sentenced
to imprisonment for two months on each
of the first five charges, such sentences to be served concurrently, with
special conditions
to perform 100 hours of unpaid community work and to
participate in literacy programs, and all drivers licences were cancelled and
you were disqualified from obtaining a licence for a period of five years, and
on the final charge you were sentenced to pay a fine
of $100. Your involvement
in intentionally causing serious injury to Hulya Cavus represents a substantial
escalation in the criminality
of your conduct. It is the first time that you
have been convicted of an offence involving violence.
- According to Mr Cummins, you remain adamant that you had no
idea that Alipek intended to harm Ms Cavus. But that is inconsistent
with the
concession which you made at trial - that you handed him the petrol can when he
asked for it - and it is illogical. If
Alipek asked you to get the can, and
you concede that you did as he requested, you cannot have doubted that he
intended to use the
can to cause Ms Cavus serious harm.
- On the other hand, it has been submitted on your behalf that
you assisted Ms Cavus by extinguishing the flames once she was alight,
and that
you now have nightmares about rescuing her, and I accept that that is so. Ms
Cavus has no recollection of you assisting
her, but that is not surprising
given her condition at the time. I have already noted the evidence that you
took off your own shirt
to cover her body where she was burned, and that is
consistent with the probability that you assisted her by dousing the flames.
- Other things being equal I would regard your actions in
assisting Ms Cavus immediately after the offence as a strong indication
of
remorse. But the position is complicated by your inability to acknowledge to
Mr Cummins the role that the jury found you played.
The inconsistency may be
referable to the deterioration in your psychological state due to the head and
back injuries which you
suffered in 1996, and as a result of your marriage
break up and isolation from your children and the death of your brother and
sister.
It may also be due to alcohol induced brain damage to the possibility
of which Mr Healey refers. But as matters stand you are not
taking full
responsibility for your part in the infliction of serious physical injury on
Hulya Cavus and that suggests a lack of
remorse.
Sentencing considerations
(i) Hasan Alipek
- Hasan Alipek, the sentence to be imposed upon you for the
attempted murder of Hulya Cavus should mark the community's condemnation
of
your conduct and be sufficient to deter others like-minded from resorting to
similar means of resolving emotional disputes. The
community of which you are
now a member is intolerant of conduct so much lacking in self-discipline and
respect for the freedom of
choice of women[7]
and the community expects it to be punished. At the same time I am bound to
bear in mind your depleted psychological condition and
the opinion of Mr Healey
that your judgement is obscured by your psychiatric condition from time to
time; and that it was most likely
so obscured at the time of your offence on 6
October 2002. The fact that you may have been suffering from such a disorder,
albeit
falling short of insanity, is something that reduces the need for
general deterrence and to some extent ameliorates the moral culpability
of your
offence and the need for denunciation[8].
- Balancing as best I am able those and the other considerations
to which the Sentencing Act requires me to have regard, I conclude that
the sentence to be imposed upon you for the attempted murder of Hulya Cavus is
twelve
years imprisonment.
- For the reasons already given I regard the crime of kidnapping
of which you have been convicted as a serious case of the offence,
and I
consider that it warrants a substantial additional punishment. I bear in mind
your mental condition and I am inclined to doubt
that any period of
imprisonment will prove effective to deter you from offending again. But in my
opinion it should be enough to
punish you for the harm which you have caused.
I notice that some of the elements of the kidnapping as found by the jury may
have
been common to the offence of attempted murder. But I consider that the
nature of the kidnapping and the manner in which it was
committed added
significantly to the criminality of your conduct and to the suffering of Hulya
Cavus [9]. Consequently, on the charge of
kidnapping Hulya Cavus, I judge that you should be sentenced to a period of
imprisonment of five
years of which two years are to be served cumulatively
upon the sentence for attempted murder.
- The principles which guide the setting of a non-parole period
were recently reconsidered by the Court of Appeal in R v VZ[10] and I shall not repeat them. The evidence put
before me upon the plea gives me little reason to be optimistic about your
chances
of rehabilitation. It is said that you blame the effects of alcohol
for what occurred, and that since you were incarcerated you
have undertaken two
courses to do with alcohol dependence. But apart from that I see little sign
that you are remorseful or that
the situation is likely to change within the
foreseeable future. To my way of thinking the psychological evidence offered
on your
behalf confirms that conclusion. In the terms in which the relevant
principles of determining a non-parole period were analysed
in R v VZ, I
am of opinion that the punishment would not be sufficient and that the general
and specific deterrent effects of the sentence
to be imposed upon you would be
undermined if I were to set a non-parole period for you of anything less than
eleven years.
(ii) Jason Saltmarsh
- Jason Saltmarsh, your offence of intentionally causing serious
injury is a serious offence. It has left the victim with lasting
pain and
disability. She did nothing to you to warrant any sort of harm let alone harm
of the kind that was inflicted upon her.
You had the opportunity to stop it
occurring but you chose instead to assist in its commission. Despite what has
been said about
your psychological condition and your emotional dependence on
Alipek, I consider that you carry a considerable share of responsibility
for
what occurred and that you should be punished accordingly. I have determined
that the sentence to be imposed upon you is six
years imprisonment and that you
should serve a minimum term of imprisonment of not less than four of those
years.
- I note that the sentence to be imposed upon you exceeds
sentences sometimes imposed for unintentional homicide and that your offence
did not cause the loss of a life. Nevertheless, it was only because of good
fortune and the skill of the doctors who treated Hulya
Cavus that that was not
the outcome. Although the jury were not satisfied that you knew that Alipek
was bent on killing Hulya Cavus,
they were satisfied beyond reasonable doubt
that you intended that he inflict serious injury with a can of petrol. And as
I have
said already, whatever injuries Alipek had in mind there cannot have
been any doubt that the injuries were likely to be frightful.
You willingly
and deliberately assisted him to achieve that result.
Sentence
(i) Hasan Huseyin Alipek
- Hasan Huseyin Alipek, for the reasons which I have given I
sentence you on the offence of attempted murder of which you have been
convicted to imprisonment for a period of twelve (12) years and I sentence you
on the offence of kidnapping of which you have been
convicted to imprisonment
for a period of five (5) years. Pursuant to s. 16(1) of the Sentencing
Act 1991, I order that three (3) years of the sentence imposed for the
offence of kidnapping shall be served concurrently with the sentence
imposed
for the offence of attempted murder and that the remaining two (2) years shall
be served cumulatively upon the sentence for
attempted murder; making for a
total effective sentence of fourteen (14) years imprisonment.
- In accordance with s. 11 of the Sentencing Act
1991, I fix in respect of the aggregate period of fourteen (14) years which you
will be liable to serve under the sentences imposed upon
you a period of eleven
(11) years during which you will not be eligible to be released on parole.
- I declare that the period to be reckoned as already served by
Hasan Huseyin Alipek under the sentence is 601 days inclusive of today's
date
and I direct that there be noted in the Court's records the fact that the
declaration has been made and its details.
(ii) Jason Saltmarsh
- Jason Saltmarsh, for the reasons which I have given I sentence
you on the offence of intentionally causing serious injury of which
you have
been convicted to imprisonment for a period of six (6) years.
- In accordance with s. 11 of the Sentencing Act
1991, I fix a period of four (4) years during which you will not be eligible to
be released on parole.
- I declare that the period to be reckoned as already served by
Jason Saltmarsh under the sentence is 46 days inclusive of today's
date and I
direct that there be noted in the Court's records the fact that the declaration
has been made and its details.
---
[1] Crimes Act 1958,
s. 321P. Under current sentencing practices, however, the penalties
imposed tend to be considerably less than that; often no more than 10
years:
Victorian Higher Court Sentencing Statistics 1997/8 - 2001/2 at
p. 38
[2] See R v Kasulaitis [1998] 4 VR 224 at
pp. 233-234; Director of Public Prosecutions v Adajian [1999] VSCA 105 at [4], [28] and [31]
[3] Although, under current sentencing practices
the most severe sentences of close to 20 years are reserved for the severest
forms of
the offence: Fox & Freiburg, Sentencing at [12.511];
Victorian Higher Courts Sentencing Statistics, supra at p. 162
[4] Crimes Act 1958, s. 16. Under
current sentencing practices it is not uncommon to find sentences of around 10
years: Victorian Higher Courts Sentencing Statistics, 1997/98 -2001/2,
at p. 66; Fox and Freiburg, Sentencing at [12.303]
[5] Crimes Act 1958, s. 15
[6] cf. DPP v SJK [2002] VSCA 131 at [46]
- [48]
[7] R v Boaza [1999] VSCA 126 at [29] -
[33] per Chernov JA, at [50], per Winneke P and at [55] per Phillips JA;
R v Kasulaitis [1998] 4 VR 224 at pp. 233 -234, per Batt JA
[8] R v Tsiaras [1996] 2 VR 398 at
p. 400
[9] cf. Pearce v The Queen (1998) 194
CLR 610 at p. 623; R v El Kotob (2003) 4 VR 546 at p. 548
[10] [1998] VSC 32 at [15]
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