DPP v Yusuf & Gurkan [2015] VSC 763 (23 December 2015)

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THE DIRECTOR OF PUBLIC PROSECUTIONS

v

OZAN YUSUF & OGUZHAN GURKAN

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2015 in respect of Gurkan 16 December 2015 in respect of Yusuf
DATE OF SENTENCE:	23 December 2015
CASE MAY BE CITED AS:	DPP v Yusuf & Gurkan
MEDIUM NEUTRAL CITATION:	[2015] VSC 763

CRIMINAL LAW — Sentence — Manslaughter — Causing injury recklessly — Two accused together with third man, armed with a shotgun, modified fire extinguisher containing fuel and a handgun, conducted a late night attack on a suburban residence —Serious example of unlawful and dangerous act manslaughter, involving the use of a weapon — No major differences in culpability and responsibility between co-accused — Pleas of guilty — Genuine remorse — Cooperation with authorities by giving statements implicating third man and undertakings to give evidence at his trial — Conditions of serving sentence in protective custody — Relevant history of prior offending for accused Gurkan — Good prospects of rehabilitation for accused Yusuf — For accused Yusuf, total effective sentence of 6 years imprisonment with a non-parole period of 4 years and 6 months — For accused Gurkan, total effective sentence of 6 years and 6 months with a non-parole period of 5 years.

APPEARANCES:	Counsel	Solicitors
For the Crown (on the plea for the Accused Gurkan)	Mr P Rose QC and Mr J McWilliams	Office of Public Prosecutions Victoria

For the Crown (on the plea for the Accused Yusuf)	Mr J McWilliams	Office of Public Prosecutions Victoria

For the Accused Gurkan	Mr P Higham	Melinda Walker (Accredited Criminal Law Specialist)

For the Accused Yusuf	Mr J Saunders	Melinda Walker (Accredited Criminal Law Specialist)

1 Ozan Yusuf and Oguzhan Gurkan you both pleaded guilty on 22 September 2015 to one charge of manslaughter and one charge of causing injury recklessly. The maximum penalty for manslaughter is 20 years’ imprisonment and the maximum penalty for causing injury recklessly is 5 years’ imprisonment.

2 Before I come to matters the law requires me to consider when sentencing you, I will outline the essential facts relating to the crimes you have each admitted.

3 Sometime soon before 11.00 pm on 17 May 2014, together with a third man, Jumer Selimovski, you parked a vehicle at a reserve within walking distance of a residence at 35 Plowman Court in Epping. You approached the residence via a walking path and footbridge over a small gully. The residence was the home of Adrian Grech. You arrived near the house having brought with you a shotgun and a modified fire extinguisher containing fuel. Unbeknown to you both at that time, Selimovski also had a handgun. Selimovski and you Mr Gurkan wore balaclavas, while you Mr Yusuf wore a hoodie with the hood pulled over your head.

4 Once outside the house you Mr Yusuf sprayed one of the vehicles with the fuel from the fire extinguisher, the intent being to ignite the car. Occupants of the house emerged from it. Shots were then fired towards them. Two shots were fired by you Mr Gurkan from the shotgun. A shotgun pellet hit Shane Grech, the brother of Adrian Grech, in the lower leg. That occurrence gives rise to the first charge of causing injury recklessly.

5 Selimovski fired a number of shots from the handgun towards those who had come out of the house. One struck and killed Benjamin Monteath. That occurrence gives rise to the charge of manslaughter.

6 The three of you ran off, chased by people from the house. Between you, you dropped or discarded several items including the shotgun, fire extinguisher and some items of clothing. You, Mr Gurkan, left the area in the car with Selimovski whereas you, Mr Yusuf, went on foot in a separate direction and were ultimately collected from a bus stop by a friend whom you called to come and collect you.

7 The lead up to this violent, lawless and senseless set of events can be recounted briefly.

8 Selimovski had for some weeks been disputing with Adrian Grech about some car parts that were in Grech’s possession. Over the 48 hours or so leading to the raid at Grech’s house, Selimovski, Adrian Grech and then Shane Grech engaged in furious text messaging and phone calls making threats and counter threats, goading and challenging one another. Selimovski drove to Plowman Avenue twice in the afternoon before the incident: the first time around 4.00 pm. On that occasion he armed himself with two metal poles from his car and threatened Adrian Grech and another man who ran off. After he left again, more text messages and phone calls ensued, raising the temperature still. Shortly before 6.00 pm Selimovski returned to Plowman Avenue and saw numerous cars outside Grech’s house. Believing those cars to indicate a show of force, Selimovski sent Grech a text saying that he would be back. In fact, the cars were those of visitors to Grech’s house to celebrate his 8 year old son’s birthday.

9 Neither of you were involved in any of these lead up events. Neither of you knew Grech or had any animosity toward him. But it was against this background that you became involved in Selimovski’s feud.

10 You Mr Yusuf had known Selimovski for about two years before these events in connection with your use of methamphetamine. Selimovski was one of your suppliers, often supplying on credit. For that reason you were often in debt to Selimovski. On the night of 17 May your debt to him was in the order of $1,800.

11 Each of you, Mr Yusuf and Mr Gurkan, have been friends since childhood, regarding yourselves as the equivalent of cousins. Mr Yusuf, you had introduced Selimovski to Mr Gurkan principally in relation to tasks relating to motor vehicles, Mr Gurkan being somewhat of a motor mechanic.

12 Evidently Selimovski wanted assistance in his plan to take revenge on Grech. He tried to contact you Mr Yusuf without success. Knowing that Mr Gurkan would have better prospects of getting in touch with you than himself, Selimovski arrived at Mr Gurkan’s house in the late afternoon. Mr Gurkan, you were not aware of Selimovski’s plan but you managed to contact Mr Yusuf. It was apparent that Selimovski was agitated and angry. Selimovski told you, Mr Gurkan, that Mr Yusuf owed him money and that he needed to see him about it.

13 Without being informed of Selimovski’s purpose Mr Gurkan, you accompanied Selimovski to a pokies venue at the Plough Hotel in Mill Park stopping on the way at his house where Selimovski placed certain items into the boot of the car.

14 After receiving the phone call from Mr Gurkan, you Mr Yusuf agreed to drive to meet them at the pokies venue. Mr Gurkan, you accompanied Selimovski because of his insistence that you do so and he promised that it would only be about an hour. For your part, Mr Yusuf, you received a call from Mr Gurkan, noticed several missed calls from Selimovski and agreed to meet them too.

15 Before Mr Yusuf arrived at the pokies venue, Selimovski had given you, Mr Gurkan, some cash and told you to go to a nearby supermarket to buy some kerosene, latex gloves and a tennis ball. You say that you did not feel as if you could question Selimovski so you complied. These items were placed into the front of Selimovski’s car. By that time Mr Yusuf had arrived.

16 So each of you found yourselves with Selimovski in an agitated and furious mood at the Plough Hotel without knowing his purpose. In the car, he began demanding payment from you Mr Yusuf for the debt you owed him. You only had $300 with you and offered that to him but he was not satisfied. You Mr Gurkan tried to intervene on Mr Yusuf’s behalf.

17 Selimovski then told you both that he needed you to accompany him and help him. He told you that he was owed some money by somebody else who was not paying him and that you were going to go and burn this person’s car. Each of you tried to talk him out of the idea but he started the car and drove away from the pokies venue with you inside. You each say that you felt as if you could not argue with him in the circumstances you were in.

18 As he drove, Selimovski was saying words to the effect that you were going to burn a car and teach someone a lesson. So it came to be that you arrived in the vicinity of Plowman Court, Epping and the events which I have described then unfolded.

19 Without doubt, the events I have described represent a gravely serious example of the crime of unlawful and dangerous act manslaughter. The same may be said of them as an example of recklessly causing injury. Most aggravating are these features:

20 Adding to the complete senselessness of what occurred, the only explanation for the presence of Mr Monteath at the house was that he had come to collect another person to give him a lift. So, two individuals — that is, yourselves — who had no grievance with the owner of the house end up assisting with the killing of another person who also had no connection whatsoever with the original dispute. The utter senselessness was poignantly summed up by you Mr Gurkan when you said mournfully, in your statement: ‘a life over car parts’.

21 I consider that the nature and gravity of this event requires that the sentence I pass reflects powerful denunciation of this type of behaviour. It must also send a clear message to others that this conduct is not to be tolerated in a civilised society and it must also contain an appropriate measure of punishment of you both for involving yourselves in it.

22 Your actions have brought about the untimely death of a 39 year old man: a father of two bewildered young boys, a son of two grieving parents, a brother of two shattered siblings, an uncle to several other children and, no doubt, the friend of others. Apart from Mr Monteath’s irreversible loss of expectation of what life was to bring him, the loss that will go on being endured by those left to suffer the pain of his death was poignantly captured by the statement of his mother read to the court. Their loss will endure for and extend well beyond the period during which you will suffer the loss of your liberty.

23 There are things that can be said that both aggravate and mitigate your personal culpability and responsibility for what occurred. I find there is nothing relevantly to separate the blame that can be levelled at the two of you for this event, despite the fact that, for example, you Mr Gurkan, apparently pulled the trigger that caused injury to Shane Grech or that you, Mr Yusuf, had the greater relationship with Selimovski. Each of you had the same degree of knowledge of what was likely to occur; each had much the same opportunity to stop or refuse.

24 Similarly, there is little if anything to separate you in terms of mitigating factors in what actually took place. You were each fearful of Selimovski and were affected by and intimidated by his behaviour. You each made efforts at various points of time to dissuade him or, at least, to modify the severity of his actions. Sadly, your joint efforts were weak and to no avail.

25 You were both arrested on the same day — 7 August 2014. Neither of you admitted your involvement in the events when interviewed in August 2014. Initially charged with murder, you indicated your intention to plead not guilty to that charge, participated in committal proceedings and were subsequently indicted on one count of murder, one count of intentionally causing serious injury and one count of recklessly causing serious injury.

26 It was not until 22 September 2015 that you each pleaded guilty to the count of manslaughter and recklessly causing injury. I accept, of course, that there is a process that precedes such a plea and that for some time there had been negotiations, interviews, and the making of statements which led to your ultimate pleas. I understand that the process commenced in or about July of 2015.

27 It cannot be said that you either cooperated with police or took responsibility for your actions at the earliest possible stage. Of course, I recognise that until 22 September 2015 you were facing charges of murder which you denied. Importantly, your respective pleas of guilty to these two charges have been accompanied by you both making lengthy statements admitting your involvement in the crime and implicating Selimovski who continues to plead not guilty to the charge of murder for which he faces trial in early 2016.

28 You each gave undertakings on oath to the court that you would give evidence at the trial of Selimovski in accordance with the statements you have made. You did so knowing that should you fail to give evidence substantially in keeping with those statements then the Crown may appeal any sentence I pass upon you and you may be re-sentenced in the light of the changed circumstance.

29 Even though your respective pleas may not have been made at the earliest possible opportunity I am persuaded that both of you now experience and express genuine remorse. Your pleas of guilty have saved the community the expense of a trial of your charges, have spared witnesses from having to give evidence and also reflect genuine remorse.

30 In your case, Mr Yusuf, your sorrow was expressed in your statement to the police in September this year and also to Dr Adam Deacon, a psychiatrist, who interviewed you on 20 November 2015. You also explained your sorrow in a handwritten letter to the court passed up by counsel at your sentence hearing. It is also signified by your cooperation in agreeing to give evidence against Selimovski.

31 Likewise, in your case Mr Gurkan your sorrow is also expressed in your statement to police made in September this year and also to a psychologist, Ms Gina Cidoni, who saw you on 14 October 2015. It is also signified by your cooperation in agreeing to give evidence against Selimovski.

32 Both of you expressed thoughts for and empathy with your victim Mr Monteath, his family and children.

33 In favour of both of you I take into account your pleas of guilty, cooperation and remorse. I need to say something more about the effect of your cooperation upon sentencing considerations.

34 It is an established policy of the law to encourage those who commit offences to inform upon their co-offenders and to give evidence against them. That encouragement is delivered in practical terms by discounts given to offenders on the sentences which they would otherwise have received had they not given that cooperation. The extent of the discount will differ from case to case. In assessing the extent of that discount I take into account the quality of the information which you have provided, the risks that you have exposed yourselves to by providing the cooperation, the nature and gravity of these particular crimes, the need for deterrence of such crimes and, accordingly, the need to encourage offenders to inform against other offenders in respect of such crimes.

35 It was not argued that without your evidence the case against Selimovski could not be brought. Clearly, it could be and in fact had been before you agreed to cooperate. Nevertheless, your combined evidence makes what seems like a reasonable case against Selimovski much more powerful. I accept that in agreeing to give evidence you have now both placed yourselves at risk within the prison population because of the animosity from certain quarters against those who cooperate with police. From matters that were raised at the sentence hearings, that risk is not merely perceived but is real. In Mr Yusuf’s case, concerns for the family have led his mother to vacate the family home.

36 In each case, in combination with your remorse and pleas of guilty, having also taking into account the time they were made, your cooperation with the authorities warrants a significant discount from the sentence you each would otherwise have received had you not made that plea or given that cooperation.

37 You are now both in protective custody while on remand and, so I am informed by counsel for the defence without any disagreement by the prosecution, you are likely to serve your inevitable prison terms in a protective prison. The circumstance of you each having been in protective custody to date and being likely to remain in protective custody hereafter is another matter to be taken into account, and I do. Although it cannot be assumed as a matter of complete certainty, I was informed it is probable you will each serve your sentences in a prison solely for protective custody prisoners.

38 Although protective custody has been and will be more onerous than custody for the ordinary prisoner, as far as I can gather the character of your protective custody will not be at the most onerous end of the spectrum for such custody. It will however limit the range of options and services that you might otherwise have had available to you in the prison population.

39 In addition to the quality of the information you have agreed to provide and the risks to which you have exposed yourselves by agreeing to do so, I also take into account that violent attacks by gangs of people on others within residential communities are repugnant. By nature, they often occur between groups loathe to report or identify others. In my view particular encouragement to inform on others should be given to offenders involved in this type of conduct so that, overall, the tendency towards this form of group lawlessness might be deterred.

41 Mr Yusuf you are currently 39 years of age having been born on 3 January 1976. You have one younger sister, a teacher married with three children.

42 Your parents, Turkish Cypriots, both migrated to Australia, met and married in Melbourne and were both employed as factory workers. On your own account to Dr Deacon you were raised in a loving and supportive family environment. You received your education in the State primary and secondary school system in the suburbs of Melbourne completing secondary school in 1993 with good grades. From there you enrolled in a Bachelor of Information Technology at Victoria University and completed that course. From an early age you were a promising soccer player playing club soccer eventually as a semi-professional for Albion Soccer Club in the then Premier League. You ceased at the age of 26.

43 After graduating you gained employment in the computer industry initially with a number of computer firms, then with Telstra for five years in the repair and maintenance call centre. After that, because it offered better pay, you obtained employment as a security guard at Melbourne Airport.

44 You had no background of offending up to this point of the story. Neither had any of your family any criminal history.

45 Against this positive background, it was in 2009 when in your early 30s you became a user of methamphetamine and other drugs due, so I was told, because a woman with whom you then had a relationship was a drug user.

46 In January 2010 you were arrested and charged — falsely as it turned out — with a serious assault on another man, allegedly involving the use of a weapon. You were ultimately acquitted of all charges relating to this incident in November 2014 but the experience took a heavy toll upon you. After being charged you lost your job as a security officer at the airport. You descended into feelings of anxiety and depression and your drug use escalated. From there you became involved in a small time scheme to manufacture methamphetamine to support your personal use, and you were arrested in March 2010 for charges relating to trafficking in a drug of dependence. You were remanded in custody for a period of a fortnight before being bailed on strict reporting and curfew conditions which remained in place for several years.

47 In 2012 your parents separated and later divorced. This affected you significantly. Dr Deacon, whilst emphasising that you do not suffer any mental illness and firmly negating the application of Verdins [1] principles in your case, nevertheless records that the stress of bail conditions, including the curfew which was involved, combined with your parents’ unexpected separation, all impacted on your mental health. You felt depressed being required to abide bail restrictions and you stopped working. You struggled to get motivated and you were constantly stressed.

48 Your sister and your current partner of five years both paint a similar picture of a man who fell into what they describe as a deep depression after being wrongly accused of a crime in January 2010 and living in the shadow of a court case until late 2014. Otherwise they describe you as a dedicated family man, one who cares for members of the family, and a person of integrity.

49 Your drug use obviously continued after your arrest and charge in 2010 and after your arrest and charge for trafficking in a drug of dependence in March 2011. The financial consequences of that ongoing drug use contributed to your vulnerability to Selimovski in the manner I have described.

50 Also, of significance, since being on remand you have been diagnosed with cancer of the kidney. You had a major operation at St Vincent’s Hospital Melbourne on 22 October 2015 with the cancer being removed. Medical reports in late October reported that your overall prognosis is good and you would not require chemotherapy or radiotherapy. Very recently tests have revealed an abnormally high reading of a particular substance which may indicate ongoing cancer activity, which is to be the subject of further ultrasound investigation as a matter of priority.

51 Dr Deacon’s assessment of you was that you had generally enjoyed stable mental health, had experienced stress associated with your previous criminal charge but were not mentally ill, have found experience in prison to be onerous but probably no more than an average prisoner in a protection unit and you present as reasonably mentally robust and resilient.

52 You have relatively few prior convictions, none before 2010. None relate to violence. All are drug related, three for possessing amphetamine and one for trafficking a drug of dependence (previously mentioned) for which you received a two year suspended sentence.

53 I accept that, providing you abstain from using illicit drugs — as you have done while in prison and have committed to continue to do — your prospects of rehabilitation are good. You maintain strong family support and continue to receive visits in prison from your mother, partner, aunt and uncle.

54 Mr Gurkan, you are currently aged 35 years having been born 3 April 1980. That makes you about four years younger than Mr Yusuf.

55 You were born and raised to Turkish parents living in Melbourne and you have two brothers, both younger.

56 It seems that you and your brothers suffered physical abuse at the hands of your alcoholic father such that you spent a good deal of time in your youth at your grandparents’ house, probably arranged by your mother as a protective measure. You attended primary and secondary school to Year 11. In 1995, then aged about 15, you had a motor vehicle accident in which you suffered serious spinal damage and went on to have a spinal fusion in 1997 and then further surgery again in 2000. You endured problems with pain management being put on quite heavy painkilling medication.

57 In the course of treatment for that issue, in about 2000, a psychiatrist diagnosed you as having post-traumatic stress disorder and depression. A psychologist who has seen you recently for the purposes of this proceeding, Ms Gina Cidoni, reported that there is current evidence that you suffer from a mood disorder with depression that may be chronic. You have on occasions been treated with anti-depressant medication.

58 In 1999 you met Yukan. You began living together in 2000 and were married in 2008. You have two children, 6 and 2 years of age.

59 As far as your employment history is concerned, it has been limited by your back injury. You have worked as a cleaner and in mechanical workshops from time to time whilst also having qualified for a disability pension which is adjusted when you are in employment.

60 You have a relevant history of offending.[2] In 1999, aged 19, you were found guilty (without conviction) of making a threat to kill. In 2000, you were convicted of intentionally causing injury and assault with a weapon in a road rage incident for which you were fined and your licence was suspended for six months. In 2002, you were convicted of possessing a prohibited weapon for which you received a two months’ prison sentence which was wholly suspended. Ignoring various driving charges, in January 2008 you were convicted of reckless conduct endangering serious injury for which, together with some driving charges, you were sentenced an aggregate of 12 months’ imprisonment to be served by way of intensive correction order. You were also fined for various charges relating to possessing drugs, a prohibited weapon and ammunition.

61 On 25 August 2008 at the Melbourne County Court you were sentenced to a total prison term of 3 years and 6 months with a non-parole period of 21 months upon conviction for intentionally causing serious injury, aggravated burglary with an offensive weapon, and criminal damage. This incident requires further explanation. Apparently your father was assaulted in a shop then telephoned you and you went to his aid. Together you pursued his alleged attackers with baseball bats and caused them serious injury.

62 You served your prison term with your father who was also charged, convicted and sentenced. It was said that the 42 months that you spent in prison with your father had the one advantage of rehabilitating your relationship with him such that, for the first time, you began to understand him, form a close bond and came to love him. His death in early 2014 was said to have caused you significant grief: a grief that was still fresh at the time of your involvement in the criminal conduct for which you now face sentence.

63 Ignoring further driving charges, in March 2013 you were found guilty and fined at the Sunshine Magistrates’ Court for threatening to inflict serious injury. Ms Cidoni reports that in that incident you involved yourself in the family troubles of a cousin. In July 2013 you were found guilty (without conviction) of possessing a prohibited weapon as well as being in possession of drugs, and a driving offence.

64 Ms Cidoni administered a number of psychological tests. In her report which was tendered at the sentence hearing she summarised her findings this way:

66 A number of character references were tendered on your behalf. Interestingly, against the background of your offending, several of your referees say that your behaviour in May 2014 was totally out of character. Your character referees all speak of you as being kind, helpful, generous, a dedicated father, honest, and a good person. A number of them speak of the remorse which you feel for what you have engaged in.

67 In conclusion, your past criminal history exhibits a disposition to violence which has been episodic since you were 19. You are prone to get involved in other people’s fights — indeed, your wife says that you are easily led. This very incident in my view is a troubling extension of that pattern. I am not persuaded by your counsel’s argument that the circumstances do not show you being led, but rather trying to lead. Your self-reported, poor attempts at trying to dissuade Selimovski do not transform the colour of the story from that of weak submission at another person’s behest.

69 It was submitted that you may be entitled to the application of the sixth Verdins principle [4] by reason of your cognitive difficulties and depression, although it was also conceded that such a consideration may readily merge with the allowance to be given for the more onerous conditions in which you will be held (ie protective custody). I am not entirely persuaded that your personal mental health profile engages the sixth Verdins principle: the evidence did not establish that your mental health conditions pose a serious risk that imprisonment will have a significant adverse effect on your mental health. But, as I have already indicated, you are entitled to some allowance for the protective custody conditions of your incarceration.

70 However, your previous character and poorer prospects for rehabilitation compared to Mr Yusuf leads me to lessen the allowance for mitigatory factors in your particular case and place some additional emphasis on community protection and specific deterrence. You have been given numerous previous opportunities to respond to penalties designed to deter you from this type of behaviour. Your involvement in these events show that you have not paid adequate attention to those opportunities.

72 With these principles and considerations in mind, and having given careful thought to what is just and appropriate for each of you, I now sentence you as follows:

(a) On the charge of manslaughter, charge 1 on the indictment, I sentence you to a period five years and six months’ imprisonment.

(b) On the charge of recklessly causing injury, charge 2 on the indictment, I sentence you to a period of 18 months’ imprisonment and I direct that six months of that sentence be cumulated upon the sentence imposed in relation to charge 1.

(d) In relation to that aggregate period of imprisonment, I fix a period of 4 years and six months before you are eligible for parole.

(e) I further declare pursuant to s 6AAA of the Sentencing Act that had you not pleaded guilty to the two charges I would have sentenced you to a period of 10 years and six months’ imprisonment with a non-parole period of eight years. I will cause that statement to be entered on the records of the court.

(f) I further declare under s 18 of the Sentencing Act that you have been held in custody before sentence a total of 503 days, excluding this day, which is to be reckoned as a period of imprisonment already served under the sentence I have just passed.

(a) On the charge of manslaughter, charge 1 on the indictment, I sentence you to a period six years’ imprisonment.

(c) That makes a total effective sentence of six years and six months’ imprisonment.

(d) In relation to that aggregate period of imprisonment, I fix a period of five years before you are eligible for parole.

(e) I further declare pursuant to s 6AAA of the Sentencing Act that had you not pleaded guilty to the two charges I would have sentenced you to a period of 12 years’ imprisonment with a non-parole period of 9 years. I will cause that statement to be entered on the records of the court.

(f) I further declare under s 18 of the Sentencing Act that you have been held in custody before sentence a total of 503 days, excluding this day, which period is to be reckoned as a period of imprisonment already served under the sentence I have just passed.

^[4] Ie Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

Supreme Court of Victoria

DPP v Yusuf & Gurkan [2015] VSC 763 (23 December 2015)