The Queen(Appellant) v Yavaz Kilic

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Bell,Gageler,Keane,Nettle,Gordon JJ
• Judgment Date: 07 December 2016
• Neutral Citation: [2016] HCA 48
• Docket Number: M105/2016
• Date: 07 December 2016

[2016] HCA 48

HIGH COURT OF AUSTRALIA

Bell, Gageler, Keane, Nettle AND Gordon JJ

M105/2016

The Queen

Appellant

and

Yavaz Kilic

Respondent

Representation

G J C Silbert QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

D A Dann QC with G F Connelly for the respondent (instructed by Doogue O'Brien George)

Crimes Act 1958 (Vic), s 16.

Sentencing Act 1991 (Vic), ss 1(a), 5(2)(b).

Criminal law — Sentencing — Intentionally causing serious injury — Where respondent and victim in domestic relationship — Where victim 12 weeks pregnant with respondent's child — Where respondent caused serious injury to victim by dousing her with petrol and setting her alight — Where instant offence at upper end of range of seriousness for offence of intentionally causing serious injury — Whether Court of Appeal erred in use of expression ‘worst category’ of offence — Whether Court of Appeal erred in consideration of current sentencing practices — Whether sentence imposed by sentencing judge manifestly excessive.

Words and phrases — ‘comparable case’, ‘current sentencing practices’, ‘maximum prescribed penalty’, ‘spectrum of seriousness’, ‘upper end of the range of seriousness’, ‘worst category’, ‘yardstick’.

ORDER

• 1. Appeal allowed.

• 2. Set aside orders 2 to 7 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 8 December 2015 and in their place order that the appeal to that Court be dismissed.

1 Bell, Gageler, Keane, Nettle AND Gordon JJ. Upon pleading guilty before a judge of the County Court of Victoria to one charge of intentionally causing serious injury 1 by dousing the victim with petrol and setting her alight, the respondent was sentenced for that offence (‘the principal offence’) to 14 years' imprisonment. The respondent also pleaded guilty to two uplifted 2 charges, one of using a prohibited weapon 3 and one of dealing with suspected proceeds of crime 4 (‘the summary offences’), and was sentenced to further terms of 12 months' imprisonment for each of those offences. The sentencing judge (Judge Montgomery) cumulated six months of each of the sentences imposed for the summary offences upon each other and upon the sentence imposed for the principal offence, making a total effective sentence of 15 years' imprisonment. His Honour set a non-parole period of 11 years 5.

2 On the respondent's appeal to the Court of Appeal of the Supreme Court of Victoria (Redlich and Whelan JJA), their Honours held that there was ‘such a disparity between the sentence imposed [for the principal offence] and current sentencing practice as illustrated by the authorities relied upon by the parties’ that it was apparent that there had ‘been a breach of the underlying sentencing principle of equal justice’ 6. The Court of Appeal allowed the appeal 7, quashed the sentences imposed by Judge Montgomery and resentenced the respondent for the principal offence to 10 years and six months' imprisonment, and for the summary offences to six months' and three months' imprisonment respectively

(of which three months of the first sentence and one month of the second were cumulated upon each other and upon the sentence imposed for the principal offence), making a total effective sentence of 10 years and 10 months' imprisonment. The Court of Appeal set a non-parole period of seven years and six months.

3 By special leave granted by Kiefel and Gordon JJ, the Crown appeals to this Court on five different grounds which, in the course of argument, conduced to a primary question of principle of whether the Court of Appeal erred in their consideration of ‘current sentencing practices’ by holding that the difference between the sentence imposed by Judge Montgomery and the sentences imposed in some other cases to which the Court of Appeal referred warranted the conclusion that the sentence imposed by Judge Montgomery was manifestly excessive. For the reasons which follow, that question should be answered in the affirmative and the appeal should be allowed.

4 There is also a secondary complaint that the Court of Appeal impermissibly substituted their own views for the findings of Judge Montgomery as to whether the principal offence is appropriately to be characterised as unpremeditated; as to the extent of the respondent's criminal antecedents; and as to the respondent's prospects of rehabilitation. As will be explained, that complaint should be rejected.

The facts

5 At the time of commission of the principal offence on 27 July 2014, the respondent was 22 years of age and in a relationship with the victim which had begun in February 2014. The victim was 23 years of age and she was 12 weeks pregnant with the respondent's child. Their relationship was described by the victim as ‘dysfunctional and controlled by drug use’. Both the respondent and the victim used the drug known as ‘ice’ (crystal methamphetamine).

6 Towards the end of March 2014, the victim began living with the respondent in a house where he resided with his father. On 26 July 2014, as a result of what the victim considered to be the constant paranoid, controlling behaviour of the respondent, she left the house and stayed overnight with a friend. During the following day, a mutual friend, Ms Ahu, attempted to counsel the couple. Early in the evening of that day, Ahu arranged to meet the victim to discuss the relationship issues and, on the way, Ahu stopped at the respondent's home to collect some belongings and to speak to the respondent. Ahu observed him to be in a highly agitated state and angry that the victim would not speak to him or meet him. He alleged that the victim had been cheating on him and he called the victim a ‘slut’. Later, he calmed down and said that everything was ‘going to be ok’.

7 Ahu telephoned the victim from the respondent's home and the victim arranged to meet Ahu there. Hence, at about 10.40 pm, the victim's uncle and cousin commenced to drive the victim towards the respondent's home. On the way, the victim observed two of her and the respondent's friends, Mr Bond and Mr Scott, who were on the side of the road refuelling their car with petrol from a fuel can. The victim therefore got out of the car in which she had been travelling and, when Bond and Scott had finished refuelling the car, drove on with them to the respondent's home. At that stage, there was still approximately a litre of petrol remaining in the fuel can, which was on the back seat.

8 When they arrived at the respondent's home, Bond parked in the street directly opposite the front entrance. As Bond was about to get out of the car, he observed the respondent running across the street towards him holding a samurai sword above his shoulders and pointing it at Bond. As the respondent reached the car, he thrust the sword through the open driver's window where Bond was sitting but, at the last moment, the sword veered towards the steering wheel. The respondent then walked away from the car, verbally abusing Bond, Scott and the victim as he went. He yelled at the victim: ‘you're just a fucking slut’. Bond followed the respondent into the front yard of the house and attempted to calm him down. The respondent filled a plastic bottle with water, swung the sword at the bottle and said to Bond: ‘this would take some cunt's head off’.

9 The respondent and Bond went into the house and, when the respondent was in his bedroom, Bond hid the sword inside the exhaust fan in the bathroom ceiling. While Bond was in the bathroom, the respondent again went outside to the car, where the victim was sitting in the back seat on the driver's side. The victim observed the respondent to have a terrifying look on his face, and, fearing for her safety, she locked the back driver's side door. The respondent, however, went around to the other side of the car, opened the other rear door and sat on the back seat next to the victim. A struggle ensued as the victim attempted to fight the respondent off. At that point, he emptied the contents of the fuel can over her, dousing her with petrol. He then got out of the car leaving her on the back seat, crying, wet and cold.

10 A few minutes later, the respondent returned to the car and again got into the back seat next to the victim. She attempted to climb out of the car backwards but the respondent grabbed her by her jumper and pulled her back into the car. He then said ‘you wanna make my heart burn, now you can burn bitch’. As he did, he held a cigarette lighter to her chest, igniting the petrol. Immediately, the victim's hair, face and clothing were engulfed in flames. She stumbled from the car and attempted unsuccessfully to extinguish the flames. Bond and Ahu ran from the house and they, along with Scott, assisted her. The respondent dialled 000 and then threw the telephone at Bond and said ‘here you talk to them’, which Bond did. The respondent returned to the house to obtain an ice pack to put on the burns to his hands that he appears to have sustained while attempting to extinguish the flames soon after lighting the fire. He then left the scene when Bond told him to ‘fuck off’.

11 The victim was taken to hospital in a critical condition. Her injuries were horrendous. She was admitted to the intensive care unit, intubated and placed in an induced coma for five days on a ventilator. She had sustained burns to 20 per cent of her total body surface area, including burns bordering on extensive burn wounds to areas essential for life such as airways; burns to sensitive areas such as the head, face, neck, breasts, hands and wrists; and burns to multiple other body parts, constituting a combination of injuries with accumulative effect. To a large extent, the burn injuries were deep — that is, partial and full thickness skin burns — and required complex surgery and skin grafting, with skin harvesting from...