By Paul Gregoire and Ugur Nedim
On the afternoon of 3 January 2011, John Elturk stole a chef’s knife worth $25 from a Big W store at Carnes Hill. The 37-year-old then made his way to the family home in Lansvale, where he’d been living with his father until shortly before Christmas.
The two had argued at the time. And Mr Elturk said to his father, “I’m going to kill you one day, you son of a bitch.”
As Elturk entered the house he saw his father, Sohail, seated on a lounge chair in the living room watching a DVD.
Mr Elturk moved up behind his father, who was unaware of his son’s presence. The offender placed his hand on his father’s forehead and tilted his head back. Elturk then ran the blade of the knife across his neck, causing a wound from the middle of his throat to a point near his right ear.
The 65-year-old later described his son’s face as emotionless and expressionless – like he was in a trance – at the time of the offending. When Sohail asked Mr Elturk why he’d attacked him, his son replied, “I had to do that, you are the devil.”
Sohail drove himself to Liverpool hospital, where he was rushed to surgery. The wound required 15 stitches, and the treating doctor described it as serious. If left untreated, the wound would have proven fatal.
The offender also drove to the hospital, where he was arrested and charged with attempted murder.
Questioning the guilty pleas
Mr Elturk pleaded guilty to two offences on 5 April 2012. The first was the offence of stealing a knife, as contrary to section 117 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 5 years imprisonment.
The second was for a charge of wounding with intent to cause grievous bodily harm, under section 33(1)(a) of the Crimes Act. A maximum penalty of 25 years applies to this offence, with a standard non-parole period (SNPP) of 7 years.
An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
On 5 June, the Crown applied to the NSW District Court to rejected Elturk’s guilty pleas, as it would have been more appropriate that a special verdict of not guilty by reason of mental illness be entered, as provided under section 38 of the Mental Health (Forensic Provisions) Act 1990.
However, District Court Judge Nicholson rejected the application.
Long-term mental health issues
The NSW District Court heard that Mr Elturk had been diagnosed as suffering from either schizoaffective disorder or a relapsing psychotic illness, with features of both schizophrenia and bipolar disorder. And there was a history of mental illness in his family.
Psychiatrist Dr Nielssen said that at the time of the offence, Mr Elturk was “in a psychosis” and believed that “supernatural things were happening.” And it was understood that the offender had ceased taking his medication some months prior to the incident.
Dr Nielssen also remarked that the entering of a special verdict was beneficial both for an accused person and the community, as rehabilitation through a separate forensic hospital is very successful and leads to significantly lower reoffending rates.
The remarks of the sentencing judge
Judge Nicholson stated that Mr Elturk’s mental illness had led him to commit the offence. But, his Honour said that as he’d pleaded guilty, he’d accepted responsibility for the act, and therefore his illness wouldn’t be taken into account in assessing the object seriousness of the offence.
The sentencing judge found that when Elturk stole the knife, he was intending to cause his father harm, but not serious harm. Although, he also noted that his father’s victim impact statement outlined that the wounding had a serious psychological impact on him.
On 5 October 2012, Judge Nicholson sentenced Elturk to 8 years of imprisonment, with a non-parole period of 4 years, for the offence of grievous bodily harm with intent. Regarding the stealing offence, the judge entered a conviction, but applied no penalty.
His Honour provided a 20 percent discount to Elturk’s sentence, due to his early guilty plea. However, he didn’t allow for the full 25 percent discount that was applicable, as he was concerned about Elturk’s lack of remorse.
Moral culpability must be considered
Mr Elturk appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on three grounds that all essentially challenged the way the sentencing judge dealt with the offender’s mental illness.
The first ground was that the judge had made an error by not considering the offender’s mental illness as a mitigating factor when assessing the object seriousness of the offence.
According to NSWCCA Justice Beazley, the assessment of an offender’s moral culpability is an important task that a sentencing judge performs. Indeed, a judge must have regard to a defendant’s mental state when they committed an offence.
“In my opinion, the sentencing judge in this case erred in determining that the applicant had waived his right to have his mental illness considered as a causal factor in the commission of the crime,” her Honour ruled. And she granted the leave of appeal.
Mr Elturk’s legal team also put forth that the sentencing judge had made an error, when he found that “absent a reliance on mental illness the now unexplained irrationality and malice are matters to be taken into account adverse to the offender.”
And Justice Beazley agreed that the judge had made an error. Her Honour said that this stemmed from his previous false assumption that Elturk had “waived his right to rely upon his mental state in the assessment of the objective seriousness of the offence.”
The final ground of appeal was that the judge had given insufficient weight to Elturk’s acute psychotic disorder at the time of the offence, when assessing the appropriate sentence.
To prove this matter, Elturk relied on the sentencing statistics for the same offence over the period February 2008 to June 2013. And in particular, he pointed out that no offender that fit his profile had been sentenced to more than 8 years prison time.
“The sentence imposed failed to make appropriate allowance for the applicant’s mental condition and his low level of moral culpability with the consequence that the sentence imposed was not proportionate to the criminality,” her Honour ruled.
Granted and resentenced
The NSWCCA justices ruled that the NSW District Court sentence be quashed. And they found that a new sentence was warranted.
In sentencing, the justices took into consideration the seriousness of the offence, the danger Mr Elturk posed to the community, the nature of his illness, the consequences that occur when he stops taking his medication, as well as his limited ability to assess the symptoms of his illness.
On 17 April 2014, the panel of three justices sentenced John Elturk to a maximum of 6 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months.