By Tamara Hamilton-Noy
In Victoria in 2014, there were 32 victims of family and domestic violence-related homicide (5 per million persons) and 1,321 victims of family and domestic violence-related sexual assault offences (23 victims per 100,000 persons). There were seven times as many female victims as male victims in Victoria of family and domestic violence-related sexual assault.
On 27 July 2014 a young woman drove up to the home of 22 year old Yavaz Kilic with a group of friends. She had been in a relationship with Kilic and was 12 weeks pregnant to him. The relationship was later described as having been controlling and ruled by his paranoia. Kilic had commenced using drugs at the age of 13 and had had a period of homelessness at 18 years of age. He had worked previously as a labourer. He had previous convictions for weapons related charges, but no violence related priors. As of 27 July 2014 he was reported to have been using ice for several days.
The woman and her friend, Mr B, went to get out of the car at which time Kilic ran across the road in an aggressive manner, holding a samurai sword above his shoulders and pointing it at Mr B. He shoved the sword through the open window towards the steering wheel and yelled at the people in the car, including yelling at the young woman, “You’re just a fucking slut”.
Mr B followed Kilic into his front yard and Kilic filled a bottle of water and swung the sword at it, stating ‘This would take some cunt’s head off’. Mr B followed Kilic into the house and hid the sword inside the house. While Mr B went to the bathroom, Kilic went outside and headed back to the car. The young female was sitting in the back seat and locked the door. Kilic attempted to open the door, and moved round to the other side of the car and opened the rear door and sat in the back seat next to her. There was a struggle between the two of them. Kilic picked up a fuel container and poured petrol over the female, then got out of the car, leaving her sitting on the back seat crying. He returned a few minutes later and attempted to pull her out of the car. Kilic grabbed her by the jumper and said, ‘You want to make my heart burn, now you can burn, bitch’, holding the cigarette lighter to her chest and igniting the petrol. The petrol had covered the victim’s hair, face and clothing which were set alight.
The victim was in hospital and was in an induced coma for five days, during which time she was on a ventilator. She remained in hospital for a further nine days in intensive care. Her injuries were subsequently described as life endangering, that is, without the treatment she received she would have died from her injuries. The burns were partial and full thickness skin burns which required surgery and skin grafting. She subsequently terminated her pregnancy in August 2014 and was discharged from the hospital the following day. She had further appointments and physiotherapy following her discharge from hospital.
‘Current sentencing practices’
Kilic pleaded guilty in March 2015 in the County Court of Victoria to intentionally causing serious injury and was sentenced to 14 years’ imprisonment for the charge. He was sentenced to 12 months’ imprisonment on two other summary charges that had been uplifted, with six months cumulation on each. His total sentence was 15 years imprisonment, with a non-parole period of 11 years.
In sentencing Kilic, the Judge was required to take into account the principles set out in s 5(1) of the Sentencing Act 1991 (Vic), which provides that the only purposes for which sentences may be imposed are punishment of the offender, deterrence, rehabilitation, denunciation, protection of the community, or a combination of two or more of those purposes.
Section 5(2) of the Sentencing Act then provides that a Court must have regard to the following matters when sentencing an offender:
(a) the maximum penalty prescribed for the offence; and
(ab) the baseline sentence for the offence; and
(b) current sentencing practices; and
(c) the nature and gravity of the offence; and
(d) the offender’s culpability and degree of responsibility for the offence; and
(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and
(daa) the impact of the offence on any victim of the offence; and
(da) the personal circumstances of any victim of the offence; and
(db) any injury, loss or damage resulting directly from the offence; and
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f) the offender’s previous character; and
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
As can be seen from these factors, current sentencing practices are but one of the many factors that are to be weighed up by a judge in imposing sentence. They are, to some extent, concrete in that objective evidence can be adduced of sentences imposed for similar prior cases. Other factors are fluid in that the factors vary widely from case to case, such as the impact on a victim or character of the offender, and are more difficult to use as grounding for a sentencing range that may be appropriate.
Kilic was granted leave to appeal to the Court of Appeal. In December 2015 Court of Appeal looked at several aspects of the sentencing judgment, including the question of whether the sentence was manifestly excessive, having regard to the circumstances of the offence, current sentencing practices, maximum penalties and the principle of totality. While the use of fire as a weapon is relatively rare, the Court considered other cases involving the use of fire and the sentences imposed in those cases. The cases considered ranged from similar domestic violence situations to disputes arising from business partners. In each of the cases, the scenarios varied with respect to extent of burns suffered, longer term physical effects on the victim, charges laid and whether, and to what extent, co-offenders were involved. The Court also considered other cases of intentionally cause serious injury where fire had not been used, noting that they were ‘worst category offending’.
This approach by the Court was consistent with reviews of sentencing undertaken by the Court of Appeal for other assault cases, where tables of cases are provided by the Office of Public Prosecutions to assist in establishing sentencing ranges for particular types of offences. However, to what extent must judges be guided by the range of sentences previously imposed for similar charges? Do these limit the court in any way? How does this fit in with the other matters the court is required to take into account? The equality of sentencing between like cases sends a message of fairness, parity and consistency by the system. But does it in any way detract from the numerous factors that differ between cases? Does it reduce the ability of a sentencing judge to truly consider the factors before him or her? And does it reduce the practice of sentencing to a numerical equation rather than an ‘instinctive synthesis’ of what is the right outcome in a particular case?
The ‘worst category of the offence’
The Court of Appeal in Kilic noted that, ‘while sentences imposed in other cases are not precedents, nor should they be considered to restrict the sentencing judge’s instinctive synthesis, they do play a role in informing the instinctive synthesis, particularly insofar [as] such an overview may provide a general guide to current sentencing practices’ (at , and also citing Zhang at ). The Court found that current sentencing practice is able to provide a ‘yardstick’ (at ) for a court to ensure consistency, although it does not set the boundaries for what might be appropriate for a particular sentence.
This approach is correct for two reasons. Firstly, the use of current sentencing practices as boundaries for future sentencing would lead to smaller and smaller ranges of sentences being issued as time goes on, improperly constraining judges in what they are able to do without having proper regard for the maximum penalty available for individual offences and the circumstances of the individual case — effectively reducing the sentencing approach to a statistical or mathematical equation. Secondly, it assumes the correctness of previous sentences imposed, without the ability of a court to look in depth at the reasons for a particular sentence being imposed in a previous case and the factors relevant to that case. Either way, the use of current sentencing practices is given too much primacy in the sentencing process: it is, after all, but one in a ‘list’ of numerous factors that must be considered by a judge in imposing sentence rather than the primary focus of the sentencing task.
The Court of Appeal concluded that the sentence imposed on Kilic was ‘unjustifiably disparate’ from other sentences for worst category offending in comparable cases. The Court noted (at –) that:
Notwithstanding the latitude that must therefore be extended to sentencing judges, particularly when sentencing for an offence falling within the worst category, there is such a disparity between the sentence imposed and current sentencing practice as illustrated by the authorities relied upon by the parties, that we are satisfied that there has been a breach of the underlying sentencing principle of equal justice. The sentence imposed is unjustifiably disparate from other sentences imposed for worst category offending by offenders in comparable circumstances.
Subtle distinctions between serious injuries should be eschewed but without minimising the horrific injuries suffered by the victim, there is a clear distinction to be made here from those cases where the victims have sustained lifelong major physical or mental disabilities. When this consideration is combined with the lack of premeditation, the appellant’s genuine remorse, youth and lack of relevant prior offending, and prospects for rehabilitation, the conclusion is, in our view, inescapable that the sentence imposed on the primary charge was well beyond a reasonable exercise of the sentencing discretion.
The Court of Appeal reduced the sentence to 10 years and 6 months be served for the intentionally causing serious injury charge, and six months and three months for each of the other charges, with three months and one month of these to be served cumulatively. The effect of this was a total effective sentence of 10 years and 10 months imprisonment, with a non-parole period of 7 years and 6 months.
The DPP was granted leave to appeal to the High Court, part of its written submissions being that ‘in recent times, the Victorian Court of Appeal has adopted a rather inflexible approach to “current sentencing practices” — allowing such practices to impermissibly constrain or fetter the sentencing discretion’.
A ‘truly horrific’ crime
On Wednesday last week the High Court handed down its judgment. In a joint judgment, Bell, Gageler, Keane, Nettle and Gordon JJ noted that the Court of Appeal had recognised the offence as ‘truly horrific’ and that the intentional setting on fire of a person with resulting life-threatening burns put the case in the ‘worst category of this offence’, however, had taken the view that, when looking at the other cases involving assault by fire, it became apparent that the sentence imposed had been manifestly excessive. In respect of the use of this phrase by the Court of Appeal, the High Court noted (at ) it is ‘potentially confusing … and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided’.
As to the role of current sentencing practices in Victorian sentencing law, the High Court held that previous similar cases may provide a yardstick which may assist in achieving consistency in sentencing, but that this does not mean (at , citing the Court of Appeal judgment at ) that
the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a “broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle”.
The Court found that the Court of Appeal had erred in attributing such significance to the sentences imposed in previous cases. The Court concluded (at ) that:
Cases of intentionally causing serious injury by fire are not common. The few cases mentioned by the parties could not properly be regarded as providing a sentencing pattern. There were too few of them, one dealt with a different offence, another was more than 12 years old and, in any event, as will be explained, the circumstances of the offending in each of those cases were too disparate. At best they were representative of particular aspects of the spectrum of seriousness.
Interestingly, the High Court then looked at the details of past cases to distinguish them from the circumstances of the current case. The High Court allowed the appeal, the effect of which was that the original sentence imposed in the County Court stands.
If we recall that the question for the Court of Appeal was, in part, whether the sentence imposed was manifestly excessive, I wonder whether this legal test has been lost in all of this discussion? Does the series of judgments issued in this case suggest the High Court should revert to its previous reluctance to take a hands-off approach to reviewing sentences imposed in lower courts (perhaps with the exception of rare, exceptional cases)? Was the Court of Appeal in a better position than the County Court judge in deciding that 10 years six months was a more appropriate sentence than the 14 years initially given? Going forward, the High Court has clarified that previous similar cases provide a yardstick for future cases but are not the boundaries within which further sentences are to be imposed. It remains to be seen whether this will change the focus of future Court of Appeal decisions on existing sentencing practices.
This case, however, begins and ends with the issue of domestic violence, aside from any interesting discussion it may have perpetuated about the primacy of various sentencing principles. In February 2015, some seven months after this incident, the Victorian Government appointed Commissioners to run a Royal Commission into Family Violence. The outcome of this inquiry was tabled on 30 March 2016 and included 227 recommendations, part of which address systems and processes that can be implemented to support victims of family violence. The investment of the Victorian Government in the Royal Commission would suggest a renewed commitment on the part of the government to tackling the complex and difficult issue of how to best address domestic violence going forward on both a community and institutional level.
AGLC3 Citation: Tamara Hamilton-Noy, ‘The High Court on Sentencing Domestic Violence: Kilic v The Queen’ on Opinions on High (16 December 2016) <https://blogs.unimelb.edu.au/opinionsonhigh/2016/12/16/hamilton-noy-kilic/>.
Tamara Hamilton-Noy is a Fellow of the Melbourne Juris Doctor at MLS.