DPP v Selcuk [2006] VSC 465 (7 December 2006)

Last Updated: 8 December 2006


IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1581 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

V

ASIM SELCUK

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 6, 9, 10 – 13 and 16 - 18 October 2006
DATE OF SENTENCE:	7 December 2006
CASE MAY BE CITED AS:	DPP v Asim Selcuk
MEDIUM NEUTRAL CITATION:	[2006] VSC 465

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Aiding and abetting vicious, unprovoked attack with baseball bat on frail victim at tram stop – No prior convictions – Excellent prospects of rehabilitation – Youthful offender – Parity considerations – Total effective sentence of imprisonment of 3 years – Non-parole period of 1 year.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Shwartz (for trial) Mr G Silbert (for plea)	Solicitor for Public Prosecutions

For the Accused	Mr D Dann	Robert Stary & Associates

HER HONOUR:

1 Asim Selcuk you have been found guilty by a jury of intentionally causing serious injury. It is now my duty to sentence you for that offence.

The offences

2 The person who was seriously injured was Ali Duran, your uncle. In 1999, your older brother, Altaman Selcuk, married Ali Duran’s daughter, your cousin, Sezgin Duran.
3 Sezgin left Altaman in January 2005 and moved back home with her parents. On the afternoon of 19 February 2005, Altaman telephoned you and asked you to come around to his place, because he had drunk too much to drive. You drove from your home in Flemington to his home in Brunswick. You parked your car at Altaman’s place, and drove him in his car to a Turkish café in Sydney Road, which Ali Duran attended regularly. You told police that Altaman told you where to go and that he was going to meet Ali at the café, to speak with him about Altaman’s marriage break-up. This was at around 6:30pm. You said Altaman was "normal" when you met him at his home, but you could tell that he had been drinking.
4 You double-parked outside the café and kept the motor running. Altaman got out of the front passenger door and walked into the café, carrying a wooden baseball bat. You waited for him whilst he was in the café. It is not clear on the evidence whether you knew at that time that he had a baseball bat on him.
5 After he left the café, he got back in the car and you drove down Sydney Road, towards the city. A short time later, you saw Ali Duran near the intersection of Sydney Road and Edwards/Reynard Street, Coburg. He was on the footpath, waiting at the tram stop. Although only 61 years old, your uncle used a walking stick and moved slowly, as a result of previous strokes and ongoing health problems.
6 You parked the car near Ali Duran, partially in the intersection, obstructing traffic and a tram. Altaman got out of the car and attacked Mr Duran with the baseball bat. The first blow hit him on the right hand, fracturing his right index finger and knocking him to the ground. Altaman continued his attack, hitting him with extreme force approximately 15 times to the legs, arms, back and head, violently abusing him as he did so. Mr Duran tried to protect himself by putting his hands up and curling into a foetal position. The attack took place in broad daylight, in front of many bystanders.
7 There is no dispute that you got out of the car at some stage during the attack and stood near your brother, whilst he was attacking Mr Duran. In returning a verdict of guilty of intentionally causing serious injury, the jury must have rejected the suggestion that you were trying to break up the fight by calling out to your brother to stop hitting Mr Duran.
8 However, given the way the Crown case was put, I accept that in returning a verdict of not guilty of affray, the jury was satisfied beyond reasonable doubt that you did not physically attack Mr Duran in any way.
9 You did nothing to assist your uncle, as he lay on the ground bleeding heavily. Instead, you helped your brother flee the scene by driving the car south down Sydney Road. Witnesses reported the loud revving of an engine and screeching tyres.
10 Mr Duran was attended to by bystanders. A short time later an ambulance arrived and he was taken to hospital. Mr Duran sustained a 15cm laceration to the back of his head that required more than 20 staples. He also suffered a cerebral contusion to that area of his head, fractures to the right shin bone and right index finger, and extreme bruising to his legs, back, buttocks, arms, head, hands and face.
11 Mr Duran died a few days later, on 24 February 2005. You are not legally responsible for Mr Duran’s death, because of his pre-existing health problems and the doctors’ inability to quantify the extent to which the attack may have contributed to his death.
12 When interviewed by the police, you gave a version of events which was, in relation to the attack, a complete fabrication. In essence, you alleged that you and your brother had gone there unarmed. You said Mr Duran produced a knife, so Altaman went to the car and obtained a club-lock to use as a weapon in self-defence. The false versions which you and your brother gave to police resembled each other to such a degree that you must have colluded in at least the key elements of them.

Victim impact

13 Seven victim impact statements were filed by the Crown: one of them is from Muradiye Duran, Mr Duran’s wife, and the rest are from his children: Deniz Duran, Zubeyde Duran, Ugur Duran, Sezgin Duran, Tulay Daniskan and Nuray Ilanli.
14 In sentencing your brother, Altaman, I publicly acknowledged in some detail the ways in which Mr Duran’s family members have suffered from his death, for which they, quite understandably, blame the attack.
15 However, notwithstanding their grief and other emotions, you and your brother are not legally responsible for Mr Duran’s death and it is not my role to sentence either of you in respect of Mr Duran’s death.
Seriousness of the offence
16 The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.
17 The Crown case against you at trial was put on two different bases: that you acted in concert with Altaman in committing the offence, or, alternatively, that you aided and abetted him in committing the offence. At your plea, the Crown conceded that because it is unknown on which of those two bases the jury convicted you, I should sentence you on the basis that you had lesser involvement, namely, that you aided and abetted your brother. Given that concession and all the evidence, as well as one of the questions asked by the jury, I agree that it is appropriate that I sentence you on that lesser basis.
18 The attack on Mr Duran involved a serious example of the offence of intentionally causing serious injury. I accept that your role in it was significantly less than your brother’s and that it involved no pre-planning on your part. Nevertheless, you did nothing to try to stop the attack or assist the victim, you assisted your brother by driving him to and from the scene and you lied to police about your involvement.

Personal circumstances

19 You are now 25 years old. You were 23 at the time of offending. You were born in Melbourne, the youngest of five male siblings. Your parents separated when you were a teenager, following which your father mainly lived in Turkey. You told Ms Carla Lechner, the psychologist who prepared a report for your plea, that your older brothers filled the gap that your father left, provided you with support and were your role models.
20 You were raised on a public housing estate at Flemington and attended local primary and high schools. You passed your VCE. You did not experience any difficulties during your school years and described your home life as good.
21 After leaving school you tried, unsuccessfully, to enter the police force. You subsequently obtained a security licence. You worked in the security industry for about six months, with various employers.
22 In mid-2001, you travelled to Turkey to visit your father. There you met and married your wife. You remained together in Turkey, until her visa was organised, arriving back in Australia in early 2002.
23 You returned to find your brother, Tamer, in declining health and on dialysis due to kidney failure. You became his carer until he had a kidney transplant. He has since improved and returned to work. Your mother’s health declined after that operation, because she had donated her kidney to Tamer. You became her carer. You were in receipt of a carer’s pension at the time of this offence. You told Ms Lechner that you had wanted to return to employment, but felt you had a duty to care for your family first. You and your wife were living with your mother until about six weeks before the offence occurred. After that you moved with your wife and young son, who is now about 2 years old, into public housing across the road from your mother.
24 You are a family-focussed person, and have supported other family members, including an older brother who has suffered from psychiatric problems.
25 Although your wife and son visit you in custody, you have found it extremely difficult to cope with the emotional trauma of leaving your son at the conclusion of the visits.
26 I accept that this incident has had a great impact on you and led to a decline in your mental health. A report from Dr Kochar, the psychiatrist who has been treating you regularly since February 2006, states that you are suffering from anxiety, panic, depressed mood and compulsive behaviour, with a psychotic-like state of mind. He has been treating you with medication and psychotherapy. In Dr Kochar’s opinion, your condition is reactive, and resolution of the symptoms of it are directly connected with the "threatening and fearful consequences" of your current predicament. He thinks it likely you will continue to internalise your heightened level of anxiety, despair and shame, leading to possible physical manifestations. He says that the possibility of a reactive psychotic breakdown cannot be ruled out.
27 The psychologist, Ms Lechner, reports that although you are in the "low average" range of intelligence, you clearly understand the difference between right and wrong. She believes that you inadvertently became caught up in a confusing and tragic situation and lacked the maturity to respond appropriately.
28 Your counsel also made submissions about the impact that being in custody has and will have on those around you. Your wife speaks limited English and does not have a driver’s licence, so she is heavily reliant on you for day-to-day support. You are also a full-time carer for your mother and have been caring for your father, who suffers from serious cardiac problems. Your parents are illiterate and have limited English-speaking skills. I have no doubt that your being in custody will cause considerable hardship for your immediate family. Whilst I have some regard to that fact, I note that it is not uncommon for an offender’s family to suffer in various ways from an offender’s imprisonment.

Other sentencing considerations

29 There are a number of other factors which count in your favour.
30 I accept that you are genuinely remorseful about what happened and your role in it.
31 I note that you have no history of alcohol abuse or use of illegal drugs, or of psychiatric illness or anti-social behaviour.
32 You have no prior convictions and have never in trouble with the police before.
33 At the time of offending, you were 23 years old. Whilst not strictly speaking a young offender, you were nevertheless a youthful offender, aiding and abetting your much older brother, in what was your first criminal offence.
34 In Ms Lechner’s opinion, your lack of prior criminal history, aggressive behaviour or substance abuse, coupled with your insight into the tragic outcome of the offence and your personal motivation, means you have excellent prospects of rehabilitation. I agree with that assessment.
35 Prior to trial, you offered to plead guilty to intentionally causing serious injury and affray. The Crown was not prepared to accept your plea, unless you acknowledged physical participation in the attack. You were not prepared to plead on that basis and accordingly the matter proceeded to trial. The jury verdicts justify the position that you adopted. I have also had regard to these matters in sentencing you.
36 Nevertheless, there are other matters which I am required to take into account. The assault which you aided and abetted was a serious one. Like-minded people must understand that if they assist others in the intentional infliction of serious harm, then serious consequences will follow. I am also required to denounce your conduct and impose a just punishment.
37 I am also required to have regard to the sentence which I imposed on your brother, Altaman^[1], and the principles of parity. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. However, other things are not always equal. Matters such as the part which each played in the commission of the offence, as well as age, previous criminal history and general character, have to be taken into account. In sentencing you, I have had regard to the matters discussed earlier, in particular, your considerably lesser role in the offence, and your age, lack of criminal history and general good character.
Sentence
38 I have had regard to the range of sentences handed down in this court over recent years for the crime of intentionally causing serious injury, bearing in mind that they can only provide general guidance and that each case must be assessed having regard to the individual circumstances of the offence and the offender.
39 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 3 years. Given your current mental state and the likelihood that you will benefit from counselling and treatment which can best be provided outside of the custodial environment, I propose to fix a shorter non-parole period than might otherwise be appropriate. I fix a period of 1 year as the period you must serve before becoming eligible for parole.
40 I declare that the period to be reckoned as already served under the sentence is 54 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] In R v Altaman Selcuk [2006] VSC 447 I imposed the following sentence. For intentionally causing serious injury: 6 years. For affray: 12 months, 6 months of which to be served concurrently. Total effective sentence: 6 years, 6 months. Non-parole period: 4 years.

Authorities Cited2

Referred to (2)