Regina v Gunes [1999] NSWSC 130

New South Wales Supreme Court CITATION : Regina v Gunes [1999] NSWSC 130 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70010/98 HEARING DATE(S) : 22 February 1999 and 26 February 1999 JUDGMENT DATE : 26 February 1999

PARTIES : Elvan Ricky Gunes (Accused) JUDGMENT OF : Newman J

COUNSEL : T Hoyle SC (Crown) P Bolton (Accused) SOLICITORS : Director of Public Prosecutions ( Crown) Legal Aid of New South Wales (Accused) CATCHWORDS : Murder; Manslaughter plea; Diminished responsibility; Special circumstances ACTS CITED : Crimes Act Sentencing Act DECISION : Plea of not guilty to murder but guilty to manslaughter on the basis of diminished responsibility

1 HIS HONOUR: Elvan Ricky Gunes is for sentence today having pleaded guilty to manslaughter. The prisoner was originally charged with the murder of his father, Mehmet Gunes, to which charge he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment on the grounds of diminished responsibility. 2 For reasons which will become apparent during the course of these remarks on sentence I am of the view that the Crown's acceptance of the plea was undoubtedly proper. The maximum sentence prescribed by the Crimes Act for the crime of manslaughter is twenty-five years penal servitude. 3 I turn then to the objective facts in the matter. The killing of Mehmet Gunes was a particularly horrific one. Mehmet Gunes was the father of the prisoner. Mehmet Gunes died as a result of severe burns he suffered when the prisoner, having rendered him either senseless or certainly immobile following a fight, poured petrol over him and set the petrol alight. This occurred somewhere between 7.30 pm and 7.55 pm on 3 December 1997 at the Gunes' family residence at Mangerton. 4 The prisoner had obtained the petrol from beneath the house where it had been kept for the purpose of fuelling a lawn mower. The reason for the prisoner's presence at the family home that night was the culmination of family disputation which extended back for a number of years. I shall go into the circumstances of that disputation in some little more detail when dealing with the subjective circumstances relating to the prisoner. 5 However, it is relevant to note when dealing with the objective circumstances that jewellery, consisting principally of gold objects had been originally given by the prisoner's parents to his wife on the occasion of the prisoner's marriage. Jewellery had been returned by the prisoner's wife to her father-in-law as part of a family arrangement under which household goods would be passed to the prisoner following the return of the jewellery. 6 Earlier on 3 December 1997 Mehmet Gunes had reported to police that the prisoner had, on the evening before, attended the family residence at Mangerton and had obtained the subject jewellery after threatening his father with a knife as a consequence of which his father had handed the jewellery to him. Indeed, police, during the course of the morning, saw the prisoner at a pawn shop where he was raising money by pawning the jewellery. Police had then warned him to stay away from his father. 7 The prisoner's stated objective in returning to his parents' home that night was to remove goods which he believed were rightly his. Neither of his parents were home when he first arrived - his mother was in fact in hospital receiving treatment for a renal condition. When his father did return home a dispute arose between the prisoner and himself and the fight I have referred to ensued. The father was knocked down and subsequently burned in the manner I have described. 8 I turn then to the subjective features. The prisoner is now aged thirty-five, having been born in Turkey on 23 September 1963. The prisoner and his family came to this country when he was six or seven years of age. The family consisted of the prisoner's parents, both of whom as of 3 December 1997 were in their early sixties and his brother and sister who are now aged thirty-seven and thirty-four respectively. The family settled in the Wollongong area and until his retirement the prisoner's father was employed at the steel works. 9 Relations between the prisoner and his father appeared to have been good for most of the prisoner's life. On the other hand relations between the prisoner and his mother were poor for some considerable time. Having left school at the age of fifteen, having been an average student, the prisoner has had a somewhat chequered employment history. It is not necessary for the purposes of these remarks to detail his past employment. However, it is relevant to observe that the chequered nature of his employment history is no doubt related to his psychiatric condition. 10 The prisoner's family, being of Turkish extraction, returned to the place of their birth on numerous occasions. In the case of the prisoner's mother apparently at one time for a period of years. While I have described the relationship between the prisoner and his father as being good for most of his life, the fact is that after an altercation between that pair in 1995, his father financed a trip for the prisoner to his native land. There the prisoner married his wife Zeynep on 17 May 1995. Indeed at the time of the prisoner's marriage in Turkey both his parents were residing in Turkey and did not in fact return to Australia until 1 November 1997. 11 The prisoner and his wife had returned earlier to this country on 11 November 1995. On their return they had lived at the Gunes' family home at Mangerton until March 1997 when the couple, whose marriage apparently had been a stormy one, effectively had broken up, a separation occurring in March 1997. 12 The prisoner's wife remained at the Gunes' family house until 20 November 1997. The prisoner apparently lived in a guest house in Wollongong after March 1997. There is one child of the union between the prisoner and his wife. Apparently the prisoner's wife has now returned to Turkey. 13 I now turn to the relevant medical history of the prisoner. Concerns about the prisoner's mental health were first noted at a hospital in 1988. The prisoner had come under police notice following threats he had made to a girl with whom he had had a relationship when she had terminated that association. Indeed, an AVO had been taken out against him. An assault conviction resulting from that very breach resulted in the prisoner being gaoled for two months. 14 Because the prisoner had exhibited suicidal tendencies he was scheduled to the Shellharbour Hospital on 18 August 1988. Originally he was diagnosed as having a paranoid psychosis at the time but curiously enough by 22 August 1988 a treating psychiatrist concluded that "there was no evidence of mental illness" - albeit that the treating psychiatrist was of the view that the prisoner was dangerous. As a consequence of the psychiatrist's view as to his mental state the magistrate discharged him from his scheduling. 15 It is relevant to note at this stage that such criminal history as the prisoner had prior to this conviction effectively terminated in 1988. Other than driving offences and two offences of dishonesty the prisoner had also received a bond in 1982 when he was but eighteen for assault occasioning actual bodily harm. Latterly, the prisoner was apprehended for failing to stop at a red light in Sydney on 28 November 1997 which has relevance when considering his mental condition. However, the prisoner's criminal history is not a matter upon which I have given any weight in considering an appropriate sentence. 16 I return to the history of the prisoner's mental condition. His treating general practitioner, a Dr Iqbal of Cringila first observed mental disturbances on 9 July 1988 when the prisoner told that doctor of having hallucinations and paranoid thoughts. He was prescribed Sinequan for a depressive state from which Dr Iqbal thought he was suffering and referred him to Dr G Davies, psychiatrist. 17 Dr Iqbal next reports problems of mental difficulties in November 1994 when the prisoner complained to him of being depressed, anxious and losing sleep and not being able to think clearly. At that time he had suicidal thoughts. Prozac was prescribed but he did not follow that treatment. He was referred again to Dr Davies. 18 Dr Davies reports on seeing the prisoner only twice, on 18 January 1995 and 13 December 1995. Dr Iqbal had arranged for the prisoner to see that psychiatrist on 1 December 1997 but he failed to keep that appointment. 19 In January 1995 having received a history from the prisoner of depression, suicidal ideation, irritability and aggression Dr Davies concluded that the prisoner suffered from a personality deterioration probably of schizophrenic origin and prescribed for him a major tranquilliser. 20 He next saw the prisoner in December 1995. At this time the prisoner was on a disability pension. His purpose in wishing to see Dr Davies was to obtain documentation stating that he was unfit for military service as he wished to return to Turkey where he was likely to be conscripted. Having carried out the Minnesota Multiphasic Personality Inventory test and conducting an examination Dr Davies concluded that it was highly likely that he was suffering from a schizophrenic illness. It was Dr Davies' view that the prisoner was suffering from paranoid schizophrenia at the time of the killing of his father and was likely to have been in a psychotic state at that stage. 21 He last saw Dr Iqbal on the day of his father's killing. I glean he had seen Dr Iqbal on that occasion following his apprehension by police for disobeying a red light while driving. I gather that he had been arrested and in fact placed in the cells following this driving offence as a consequence of his conduct when the police apprehended him. 22 He had been seen in the cells by a Mr Michael Betts who was acting as duty solicitor at the time. So odd was his conduct during the interview which Mr Betts had with him that Mr Betts concluded that the prisoner was suffering from a mental illness and it was he who organised the appointment for the prisoner to see Dr Iqbal. 23 When Dr Iqbal saw him on 3 December he made a number of complaints about his parents, the police and the problems he had with his marriage. It seemed that Dr Iqbal convinced him that he should once more see Dr Davies and the prisoner agreed that this should happen. 24 Since his apprehension for the killing of his father he has been seen by three forensic psychiatrists. All received similar histories differing only in the amount of detail which was exacted. It should be noted that the prisoner had been using marijuana because he claimed it had a calming effect upon him. 25 Dr Olav Nielssen has now seen the prisoner on at least four occasions in his capacity as a visiting psychiatrist at Long Bay. When he first saw the prisoner on 28 July 1998 he concluded that the prisoner was acutely mentally ill at the time of the offence with a relapse of a psychotic illness for which he had received treatment in the past. Dr Nielssen was of the view that the prisoner had a defence of diminished responsibility because he had an abnormality of mind at the time which substantially impaired his mental responsibility for his actions. Having seen him on a number of occasions Dr Nielssen has detected a distinct improvement in the prisoner's mental state following treatment. Dr Nielssen felt as of 17 February this year that his psychiatric diagnosis is probably schizoaffective disorder which the doctor described as a combination of features as bipolar and schizophrenic illnesses. 26 The prisoner has acknowledged to Dr Nielssen on his most recent visit that he needs to abstain from taking drugs and Dr Nielssen is of the view that when released on parole the prisoner should receive ongoing psychiatric care including counselling about the effects of drug and alcohol abuse. He was somewhat guarded as to his view as to the likelihood of the prisoner being a danger to the community stating that his future dangerousness would appear to depend largely on whether or not there were relapses of psychotic illness which illness he felt would respond to treatment and early intervention. As I would understand Dr Nielssen's reports he is of the view that providing that the prisoner is given proper psychiatric treatment his prospects for rehabilitation are good. 27 Dr B Westmore has seen him twice. Following his first visit Dr Westmore obtained access to both the prison medical files and those of the Shellharbour hospital. Having carefully reviewed those records and as a consequence of his examinations, Dr Westmore concluded that at the time of the commission of the offence he was substantially impaired by abnormality of mind. It was his view that his underlying mental condition was not of a transient type. However, he felt he could only come to a differential diagnosis which included the following: "1. Paranoid schizophrenia (aggravated by substance abuse). 2. A drug induced paranoid psychosis. 3. A depressive illness (chronic type) with intermittent paranoid ideation ?delusional. 4. A personality disorder with paranoid and possibly antisocial qualities." 28 Dr Lucas having received an extensive history and having had the opportunity to read the reports of Dr Davies, Dr Iqbal, Dr Westmore and Dr Nielssen agreed with the other forensic psychiatrists that he had a defence of diminished responsibility. He stated: "He was suffering from an abnormality of mind, an acute paranoid psychosis, and major depression. The abnormality of mind was due to disease and not of a transitory nature. The possibilities are Mr Gunes has recurrent episodes of major depression or has paranoid schizophrenia with occasional exacerbations. In my opinion, the abnormality of mind substantially impaired his mental responsibility for his actions. There is good evidence that his behaviour had become erratic, out of control and perhaps irrational during the period in question." 29 Dr Lucas observed that his mental illness was the product of a long standing condition and will require long term treatment. 30 The unanimity of the psychiatric view illustrates that the Crown very properly accepted the prisoner's plea in this matter. Plainly enough that while his mental condition has caused eminent forensic psychiatrists difficulty in exactly determining the nature of his malady all are of the view that it is profound and of long standing. All agree that he requires continuing treatment both while in the prison system and on parole. Indeed it may be he will require treatment for the rest of his life. The need for continuing treatment after his release and obviously for a long time thereafter gives rise, in my view, to special circumstances pursuant to s 5(2) of the Sentencing Act. 31 There are thus good reasons for substantially altering the proportion between minimum and additional terms stipulated by the Sentencing Act. Indeed the Crown quite correctly agreed with the submission made by counsel for the prisoner that this was so. My finding of special circumstances will be reflected in the structure of the sentence I am about to pass. 32 The psychiatric evidence indicates the depth of the prisoner's psychosis and the manner in which it manifested itself at the time of the subject incident. Plainly enough at the time of the incident he was very substantially impaired by his abnormality of mind thus substantially reducing his criminal responsibility for his actions at the time. 33 Such was his mental state at the time of the commission of the crime that, in my view, deterrence has very little weight indeed in the sentencing considerations which I have to apply in this case (see Regina v Scognamiglio (1991) 56 A Crim R 81 at 86). He also has, I would understand the psychiatric reports as expressing, some contrition for his actions and I have taken that into account. 34 Having made these observations relating to the subjective features of the matter, the fact remains that the horrific nature of the offence cannot be put aside. The homicide of a person by fire is a case so grotesque, where community expectations call for a term of some substance. 35 Having weighed the objective and subjective factors, I have concluded that a head sentence of twelve years should be imposed. Having regard to my finding of special circumstances, I have imposed an additional term which is of greater duration than the minimum term I have fixed. However, the prisoner, his family and the community should be aware that he will not necessarily be released on parole at the completion of his minimum term. 36 While he is now, in Dr Nielssen's view, responding to treatment, it appears from the psychiatric reports that there is a risk that he may remain a danger, either to himself or the community because of his underlying mental condition and that, plainly, is a matter which will receive anxious consideration at the appropriate time from those who will have the task of deciding whether he should be released on parole. No doubt the Offenders Review Board will have up to date psychiatric assessments to assist them in their task at that time. 37 I have backdated the sentence to the date on which the prisoner was apprehended, namely, 3 December 1997. The head sentence of twelve years will be constructed as follows: a minimum term of five years commencing on 3 December 1997 and expiring on 2 December 2002 when the prisoner will be eligible for release on parole. An additional term of seven years commencing on 3 December 2002 and expiring on 2 December 2009.