The Queen v Atesok [2017] VSC 599 (28 September 2017)

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THE QUEEN

v

SERDAR ATESOK	Accused

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2017
DATE OF SENTENCE:	28 September 2017
CASE MAY BE CITED AS:	R v Atesok
MEDIUM NEUTRAL CITATION:	[2017] VSC 599

CRIMINAL LAW – Sentence - Manslaughter – Theft – Arson - Pleas of guilty – Accused on bail at the time of the offending – Gunshot from stolen moving vehicle – Fatal injury – Remorse – Rehabilitation prospects – Family support – Severe polysubstance abuse.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Judd QC	Office of Public Prosecutions

For the Accused	Mr R Maidment QC	Emma Turnbull Lawyers

1 Serdar Atesok, on 19 May 2017 in this Court you pleaded guilty to one charge of theft, one charge of manslaughter and one charge of arson. Those charges relate to events which occurred in December 2015 and which include the shooting of the deceased, Nathan Knight, by you on 31 December 2015 while you were driving a moving car in the Lalor area. The car you were driving was stolen. After the shooting Mr Knight was taken by ambulance from the scene to the Royal Melbourne Hospital but died a short time later. Some attempt was subsequently made to destroy the car by fire.

2 On 5 September 2017 in this Court, I heard an opening on behalf of the prosecution, received Victim Impact Statements in relation to the family of the deceased man and heard submissions from your counsel and the prosecutor in relation to the sentence that I should impose on you.

3 It is therefore now my responsibility to sentence you for these three offences.

4 The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for manslaughter is 20 years’ imprisonment. The maximum penalty for arson is 15 years’ imprisonment.

5 I will now summarise the detailed opening read to the Court by the prosecutor. No issue was taken by senior counsel on your behalf with the facts put forward in that opening.

6 The evidence indicates that for some six months prior to the fatal shooting of the deceased man there was some issue between you and him concerning a debt said to be owed by him to an associate of yours, Elias Makhoul. Makhoul sought your assistance to recover more money under the debt from Knight, which led ultimately to Knight’s death at your hands.

7 On 25 November 2015 you were released on bail by this Court in relation to charges including kidnapping, false imprisonment, robbery, intentionally causing injury, recklessly causing injury, assault and theft. The offences were alleged to have been committed on 22 May 2015 at premises at Reservoir. There were a variety of conditions that were imposed on you designed to assist you to deal with your drug issues as well as ensure your attendance at court and prevent further offending. However, by 17 December 2015 you were in breach of those conditions and had ceased reporting to police. You were, as the prosecutor put it, on the run.

8 In the lead up to the fatal shooting you were in frequent contact with Makhoul and others regarding the so-called debt. At the time Makhoul was in custody in the Marngoneet Prison and he rang you from time to time for the purpose of urging you to enforce the debt or to exact some punishment on Knight. These contacts occurred on or about 15 December 2015.

9 From 27 December 2015 onwards you called the deceased man on a large number of occasions and, in conversations with Makhoul, assured him that you were going to ‘get’ Knight. Text messages were sent to the deceased man asking him to meet you and threatening him with consequences if he did not.

10 At 6:00am on 28 December 2015, a grey Mazda 6 station wagon was stolen from the Diamond Valley Smash Repairs business in Bundoora. The theft of that vehicle represents charge 1 on the indictment. The vehicle was seen over the next two days at premises at Doreen where you also were seen.

11 Your attempts to contact the deceased continued on 29 December 2015. On that day you were seen driving the stolen Mazda motor vehicle.

12 On 31 December 2015, you continued your efforts to contact the deceased and sent him text messages. It was clear from the response of the deceased that he did not acknowledge that any money was owed.

13 On the afternoon of that day, Carly Keenan had arranged to purchase drugs from Knight and she, her boyfriend, Justin Goodwin, and their two year old daughter arrived at premises at 10 Huskisson Avenue, Lalor for that purpose. Knight was at that address visiting friends. On their arrival, Keenan let Knight know by text message they had arrived and he came out into the street.

14 At around this time you were observed by CCTV images to be in the stolen Mazda and parked a short distance away. You were depicted in the footage wearing a cap and covering your face with a cloth which you had tied at the back.

15 At 3.14pm, whilst Knight was standing adjacent to the driver's side door of Keenan's vehicle, the Mazda driven by you drove north up Huskisson Avenue towards where Knight was standing. He saw the vehicle travelling towards him, felt threatened and began to run. He got only a short distance from Keenan's vehicle before you shot him while driving the vehicle, and holding a firearm with the passenger side window wound down. The firearm was discharged once by you and the single bullet struck the deceased to the left eye, entering and remaining in his skull and brain, causing him to collapse to the ground. You continued driving north along Huskisson Avenue and left the scene. The emergency services were contacted and an ambulance attended and, at 3.40pm, left the scene with the deceased to the Royal Melbourne Hospital.

16 This fatal incident is captured by CCTV from premises at 118 Mt View Road, Lalor and 139 Mt View Road, Lalor. That footage was played during the plea hearing.

17 From that point onwards you attempted to conceal your involvement in what had occurred. You attempted to distance yourself from the stolen Mazda station wagon and you sent misleading SMS messages to the telephone of the deceased after the incident for the purpose of diverting attention from you.

18 So far as the stolen Mazda vehicle was concerned, there are several matters to consider. As your counsel pointed out it was not established that the vehicle was stolen in order for you to use it in the shooting of the deceased man. You used the vehicle but so did others. The more likely reason for the theft was to gain money from either selling the vehicle or stripping and re-selling parts from it.

19 However it having been the vehicle you drove when the shooting occurred it needed to be disposed of. You obviously knew it had been identified.

20 The decision to destroy the Mazda by fire was made by four of your associates. The attempt to do that was done at an industrial estate at Campbellfield. Whilst this was done for your benefit, you were not present. Later, you and two of your associates returned to where the car was because there was a concern that the fire had not effectively destroyed the car. That turned out to be correct. Indeed, the engine was still running and the car had not been badly damaged. The car was then driven back to an address in Fawkner and work was commenced on stripping the car. Later the vehicle was identified by police from the police helicopter. You were arrested a few days later.

21 On the way the prosecution case was presented, the offence of arson seems to have been characterised by ineptitude. Nonetheless, you endeavoured to use your associates to burn the car you were driving when you shot the deceased.

22 Indeed, you were arrested on 7 January 2016 by members of the Victoria Police Special Operations Group. On 11 January 2016, having been injured, you were released from St Vincent’s Hospital to homicide investigators and a record of interview was conducted at the Spencer Street police complex in Melbourne. You did not answer questions during the course of that interview.

23 The Court received three victim impact statements during the course of the proceedings. They were from Sheree Knight, the mother of the deceased, Daniel Scotney, the father of the deceased and Kayla Scotney, the sister of the deceased. Each of these three victim impact statements was read to the court and, as they always do, convey the traumatic outcome of your conduct. The effect of the death of their family member will be a burden that these people will be required to carry for the rest of their lives.

24 I have taken these victim impact statements into account in determining the sentence that I should impose on you.

25 You have a very substantial criminal history which began in 2005 for offences of intentionally cause injury resulting in a community based order, which you failed to comply with in 2006.

26 In 2007, you were found guilty of burglary, theft, theft from a motor vehicle and, later in that year, an offence of affray.

27 In 2010, you were convicted of offences in relation to recklessly cause injury and wilful damage to property. Further offending in relation to recklessly causing injury resulted in penalties for failing to comply with an intensive corrections order in 2011.

28 In 2012, you were convicted of intentionally damaging property, offences in relation to the retention of stolen goods and obtaining property by deception, as well as offences concerning the theft of a motor vehicle and possession of methylamphetamine, a drug of dependence being a prescription drug and possession of cannabis.

29 In 2014, you were found guilty of possessing a controlled weapon without an excuse and going equipped to steal, together with offences of theft, drive while disqualified, using an unregistered vehicle and dealing with property suspected of being the proceeds of crime. You were convicted of attempting to obtain a financial advantage by deception and unlicensed driving. Later that year you were found guilty of committing an indictable offence whilst on bail, again in relation to the handling of stolen property, together with drug offences and the possession of ammunition.

30 In 2015, you were found guilty in relation to the retention of stolen goods as well as contravening a condition of bail and possession of methylamphetamine. You had also been found guilty in that year of other offences concerning various drug possession charges and contravening a community corrections order.

31 It is a very substantial and serious criminal history. Your counsel submitted that given your involvement in the drug world, your record was not as bad as many others. That may or may not be so but dealing with your record, it does you no credit at all and I will sentence you on the basis that your criminal record is a significant one. That is a factor which to some extent undermines the submission made by your counsel that you have good prospects of rehabilitation. It is, of course, also relevant and significant as I am about to describe, that you have previous convictions for theft including theft of a motor vehicle.

32 In addition, I am told that the outstanding matters of false imprisonment and robbery for which you are yet to be sentenced are listed for mention in the County Court on 14 November 2017.

33 You are 30 years of age, having been born in 1987, the youngest of three sons to your parents who are of Turkish origins. You have resided with your family and they have maintained support for you notwithstanding your constant involvement in the criminal justice system and your regular drug abuse.

34 Your education finished at Year 11 level and you commenced but did not complete pre-apprenticeship courses at TAFE. You have been in employment only spasmodically and your plans for employment on your eventual release are vague.

35 You apparently began using marijuana at the age of 14 years and then the drug ecstasy at about the age of 18 years. At around that same time you also began taking methylamphetamine. Your earlier years were affected by the fact that your brother had an addiction to heroin. He is currently serving a term of imprisonment. In addition, your existing friends are involved in the drug world.

37 Your counsel relied on the written report of clinical psychologist Carla Lechner. Her report was based on a meeting she had with you on 1 August 2017. She did not give evidence. You told the her that you knew you had a drug problem but did not know how to deal with it. Ms Lechner seems to suggest that you have insight into the connection between your mental health, offending and drug use. She described your current risk of violent behaviour as ‘high/moderate’. That, she says, will improve with abstinence from drugs. You also suffer from moderate levels of depression and anxiety.

38 As part of your circumstances you have the continuing support of your family despite the fact that you have regularly let them down.

39 I have been provided with a number of written references but, again, no evidence was called. These are from members, friends and associates of your family. Several of them refer to you as someone of good character and have observed you to express remorse for what you have done. I am sure these people mean well but their perceptions of you obviously have limits. Nonetheless the fact of their support may assist you in the future.

40 There could be no doubt, as the prosecutor submitted, that this offence of manslaughter is a very serious offence. It represents extraordinary conduct given that you committed this offence whilst driving a stolen car in a ‘drive by’-type shooting and when other members of the community were in the vicinity, including a child. Your actions resulted in fatal injury. You were originally charged with murder but the circumstances were such that given you fired at the deceased out of the passenger side window, the prosecution took the view that they could not establish that you had an intention to kill Knight or cause him really serious injury. That said, you committed the offence of manslaughter in the context of a planned and deliberate act of violence against the deceased. You had threatened the deceased on several occasions and were motivated to cause him harm in order to retrieve an apparent debt owed by him to your associate. Yours actions were therefore clearly premediated.

41 In addition, you were on bail for other offences and were in breach of the order of this Court granting you bail. Further, you have a very poor history in the criminal justice system, as your previous convictions indicate. Your offending is a very serious example of the offence of manslaughter.

42 On your behalf your counsel submitted that I should be satisfied that your plea of guilty had a number of mitigatory aspects. First of all, your plea of guilty to manslaughter, which was initially not accepted was offered at the earliest possible stage in the proceedings. The prosecution acknowledge that to be so.

43 Secondly, your plea of guilty of course avoided the need for a contested committal hearing and for a trial. The utilitarian value of your plea is acknowledged.

44 Further, your counsel submitted that the plea represents an acceptance of criminal responsibility and the facilitation of the administration of justice. He also submitted that I should be satisfied that the plea of guilty, among other things, represents remorse on your part for the offences you have committed. Your counsel relies on your expressions of remorse to Carla Lechner in August 2017, in which you referred to being devastated by what you have done and your immense guilt and regret. I am told you also expressed those sentiments to your counsel.

45 It was not submitted by the prosecutor that I should ignore those expressions of regret or that I should conclude that you are not remorseful. I am prepared to accept that you are.

46 The more difficult question in this case relates to your prospects of rehabilitation given your very poor history. Your counsel acknowledged that it was difficult to point to factors that would enable me to reach the conclusion that your prospects were positive. You are, as he submitted, still relatively young. He relied on the fact that in 2012 you appear to have voluntarily attended and completed a 30 day program run by the Hader Clinic, who provided a written reference which was tendered at your plea. According to that reference you remained abstinent from all substances and compliant with the program for the entire treatment duration.

47 Nevertheless, as I pointed out to your counsel one of the indicators of positive prospects is some level of insight into your situations and the offences you have committed. In my opinion, given your previous unwillingness to accept opportunities to deal with your drug dependencies and to change the manner in which you live your life, I am extremely guarded about your prospects for the future.

48 Obviously a substantial term of imprisonment is warranted particularly for the offence of manslaughter you have committed. You are entitled to a discount from the sentence I impose on you as a result of your early indication of a plea of guilty and for the remorse you have expressed and which I accept is genuine as well as the utilitarian value of your plea.

49 However, considerations of specific and general deterrence, denunciation and protection of the community all require that a very significant sentence be imposed on you.

I direct that six months of the sentence on the charge of theft and six months of the sentence on the charge of arson be served cumulatively with the sentence on the charge of manslaughter.

The total effective sentence is therefore 12 years’ imprisonment. I direct that you serve a period of nine years before you are eligible to apply for release on parole.

51 Pursuant to s 18 of the Sentencing Act 1991, I declare that the pre-sentence detention is a period of 534 days and that period will be reckoned a time already served and entered into the records of the Court.

52 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that I have imposed a less severe sentence than it would otherwise have imposed because you pleaded guilty to these offences. The total effective sentence and the non-parole period that I would have imposed but for your plea of guilty is a period of 15 years’ imprisonment with a non-parole period of 12 years.

53 I have made the disposal order and the forfeiture order sought by the prosecution and not opposed on your behalf. Consequent upon the first charge of theft of a motor vehicle and pursuant to s 89(4) of the Sentencing Act 1991 I will direct that you be disqualified from holding a Victorian driver’s licence for a period of 12 months. I direct that that period of disqualification commence on the date on which you become eligible to apply for release on parole.

Supreme Court of Victoria

The Queen v Atesok [2017] VSC 599 (28 September 2017)