Director of Public Prosecutions v Afacan
[2025] VCC 45
•31 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00938
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUGAY AFACAN |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2025 | |
DATE OF SENTENCE: | 31 January 2025 | |
CASE MAY BE CITED AS: | DPP v Afacan | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 45 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - SENTENCE
Catchwords: Plea of guilty – Arson - Contravening a family violence intervention order with intent to cause physical or mental harm – A pile of burning boxes on the offender’s bed - damage valued at $8,543.85 - Criminal history – If drug use continues, prospects of rehabilitation are poor - Offender was subject to a Community Correction Order at the time of this offending.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:R v Verdins [2007] VSCA 102; 16 VR 269; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
Sentence: Total effective sentence of 36 months’ imprisonment with a minimum non-parole period of 24 months.
6AAA: Four years and two months’ imprisonment with a minimum non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Ms A Murrell | Stary Norton Halphen |
HIS HONOUR:
1Tugay Afacan, you have pleaded guilty to one charge of arson and one charge of contravening a family violence intervention order with intent to cause physical or mental harm. The maximum penalty for arson is 15 years’ imprisonment, and the maximum penalty for the contravention offence is 5 years’ imprisonment.
2The facts of this matter are set out in the prosecution opening which was tendered as an exhibit at the plea hearing, and which I will summarise.
3At the time of the offending, you were 33 years old. You were living at Beaumont Court, Sydenham with your mother, Havva Afacan, and your sister, Tugce Afacan. You started living there in September 2022. The property was owned by your mother. I was told on the plea that she had sold the property before the offending, but the sale was voided because of the offending but later sold to a different purchaser.
4On 4 April 2023, your sister and mother had obtained a final intervention order against you, prohibiting you from committing family violence or damaging or threatening to damage any property. The expiration date for those orders was 2 April 2024.
5At 7 am on 5 January 2024, you were at home with your mother and sister. Your sister woke up for work, and she saw you walking into her bedroom. You placed plastic leaves at the entrance to her bedroom. She got ready for work and then she went to the kitchen. She started to smell smoke. Your mother, Havva, had spent the previous night on the couch, and she joined your sister in the kitchen.
6They saw you walk from your bedroom to the laundry. You then left the property at around 7.13 am. This was captured on CCTV.
7Your mother and sister walked to your bedroom and saw smoke coming from your room and a pile of burning boxes on your bed. They saw flames approximately 1 metre high.
8Your sister screamed and ran outside. Your mother felt scared for her safety and that of her daughter. They turned the power off before they left the house, and they called emergency services.
9Your mother had to go back inside to get her dogs. When she went back inside, the property was filled with black smoke, it was difficult to see, but she found the dogs and took them outside.
10Police arrived at around 7.30 am and saw smoke billowing from the roof of the property. Ambulance and fire services were already at the scene.
11The victims were assessed by paramedics. They had no injuries. You had left the scene.
12A forensic chemist, John Kelleher, conducted an analysis of the scene and he said the following in his statement, which was detailed in the prosecution opening:
There had been a fire on the bed [of the master bedroom], which destroyed the mattress and the bedding ... The ceiling had collapsed, and there was some damage to the roof, the rafters and the ceiling joists. The fire had spread to the nearby furniture, and the exposed surfaces of the cupboards and the bedside tables were deeply charred. The fire also spread into the walk-in robe, which appeared to have been largely empty, but again, exposed surfaces were charred.
The fire spread into the main hallway through the open bedroom door, damaging exposed combustible surfaces and causing collapse of the ceiling. There was some spread into the western side of the lounge room, decreasing further from the bedroom. Smoke damage extended through most of the house.
13Mr Kelleher concluded that there was no flammable liquid detected on any item but said that did not exclude the possibility that flammable liquid was present, but it had evaporated. I sentence you on the basis that there is no evidence of flammable material. There were no obvious sources of accidental ignition on or near the bed. The cause of the fire was the ignition of combustible material in the bedroom, probably cardboard boxes of clothing on and beside the bed, and possibly the bedding and/or mattress beside the boxes. The source of the ignition was not able to be determined, but in the absence of any source of accidental ignition, it was probably a match or a cigarette lighter.
14The damage caused to the property based on receipts supplied to the police was valued at $8,543.85.
15You were arrested not long after, three kilometres away from Beaumont Court. You were taken to the Sunshine police station where you were assessed by a forensic medical officer as unfit to be interviewed. You were remanded in custody. You have been in custody ever since.
16You pleaded guilty following a 'submissions only' committal hearing and after some resolution discussions.
Personal circumstances
17You are 34 years old. You are of Turkish background. You were brought up by your mother and your father, largely in the Taylors Lakes area. You have one sister, who is younger than you. Both your mother and sister attended the plea hearing and are present to listen to these sentencing remarks. They both provided letters of support.
18Your father owned a kebab shop in St Albans. He died of cancer in 2017 when you were in custody in relation to a sentence you received in 2015 at the Supreme Court.
19You went to many different schools, including Taylors Lakes Secondary College. You were expelled on several occasions. You were subject to bullying behaviour at school, which led to your behavioural issues. You finished at school at the end of Year 10, when you were around the age of 15 to 16 years old. You worked for some time with your father at his kebab shop.
20You were a very good soccer player, and just before you turned 18 you went to Turkey to play soccer. You came back before you had turned 19 because you were homesick. You have not played soccer since then.
21You started using methylamphetamine soon after you returned in 2010. Your first prior conviction followed in 2011.
22I have been told you have also worked as a house painter with your uncle from time to time, and in 2014 you worked as a forklift driver. Your uncle, Blade Hahn, provided a reference which indicates work is available to you when you are ultimately released.
23I was also told that you and your sister have been working to start a clothing business called 'Royalty Always'. When you are released, you intend to work as a painter and further pursue the small business with your sister.
24
You have a substantial criminal history. Your first prior conviction was in October 2011 at the Sunshine Magistrates' Court for trafficking amphetamine, multiple dishonesty offences, a firearms offence and criminal damage. You received a sentence of four months, wholly suspended, after having served 19 days as
pre-sentence detention.
25In 2012, for reckless conduct offences, blackmail, making a threat to kill, armed robbery, false imprisonment, and various other offences, you were sentenced to four years with a minimum non-parole period of two years in the County Court. You were granted parole which you ultimately breached.
26In December 2015 at the Supreme Court, Croucher J sentenced you for intentionally causing serious injury and prohibited person in possession of a firearm, to five years' imprisonment with a minimum of three years. You were in custody at the time that sentence was imposed, for breaching the parole that had been imposed for the armed robbery in 2012. The offending in 2015 was serious. You shot a man in a public street using a sawn-off shotgun after he had threatened your sister. I was told that you served most of that sentence and you were released sometime around 2020.
27In March 2020 you were fined for possessing buprenorphine and possessing a category 2 item in a prison.
28In November 2022, you were convicted of intentionally damaging property, you were fined $500.
29On 4 April 2023, you were placed on a Community Correction Order for multiple offences committed largely towards the end of 2022. The sentence was a combination sentence of five months’ imprisonment followed by a Community Correction Order for a period of 12 months, with community work and treatment and rehabilitation conditions.
30I was provided with the police summaries relating to those offences. The offending included contravening a family violence intervention order where the protected persons were your mother and sister. The summaries indicate you were verbally aggressive towards your mother and threw objects around your room causing damage to the wall. On another occasion, you caused damage to her motor vehicle. On a separate occasion, you damaged the plaster on the walls at the house. Your mother thought you were 'having an episode' brought on by drug use. In a separate incident, when you were living with your uncle Blade Hahn, you threw a garden ornament from his property through a neighbour's glass front door and then you assaulted the neighbour by threat whilst holding the ornament. You subsequently jumped a fence at your uncle's address and threw property suspected to be stolen in a swimming pool before putting further suspected property in a wheelie bin and setting fire to it, which gave rise to a criminal damage charge.
31You were subject to the Community Correction Order at the time of the offending in this case. The breach of the correction order, along with a cultivate cannabis charge is listed for hearing at the Heidelberg Magistrate's Court on 10 February this year. I am told you are admitting the breach and pleading guilty to the cultivating cannabis offence. The contravention report was not placed before me but it is plain that the Community Correction Order did not succeed.
32Much of your prior offending has been related to your consistent use of illicit drugs, including and perhaps mostly methylamphetamine. The family violence offences which were dealt with in April 2023 occurred in circumstances where you were behaving irrationally and aggressively, and you were drug-affected.
33You have a very significant criminal history for a wide range of offences, some of which have been very serious. Your prior convictions are plainly relevant to my sentencing task. You are not to be punished again for your previous offences, but they are relevant to your moral culpability, your prospects of rehabilitation, protection of the community, and the need for specific deterrence. The fact that you were on a Community Correction Order at the time of this offending is an aggravating circumstance and is also relevant to whether I should impose a further Community Correction Order in this case, as was submitted.
34You were unfit to be interviewed at the time of this offending. I was told you were suffering from psychotic symptoms related to your excessive use of methamphetamine.
35Your counsel, Ms Murrell, told me that in the lead-up to this offending you had broken up with your girlfriend and had resumed using methamphetamine. She said that in the three weeks leading up to these offences you were using up to a gram of methamphetamine a day. In those circumstances, your behaviour became erratic, and you were hearing voices, she suggested. Ms Murrell submitted there is some support for this strange behaviour in the statement of your mother. The offending itself is strange and unusual, and I accept your conduct was the result of highly excessive use of methamphetamine, or at least your mental state had been affected by the drug use. However, although a psychiatric assessment has been conducted, the report was not relied on. Your counsel did not seek to rely on any psychiatric factors. It was not submitted that any Verdins[1] principles are relevant in this case.
[1]R v Verdins [2007] VSCA 102; 16 VR 269.
36It seems clear that you voluntarily consumed drugs in circumstances where the connection between your drug use and your offending is well established having regard to your prior criminal history. Indeed, the offending for which you were placed on a Community Correction Order in 2023, included aggression and criminal damage which is said to have occurred when you were significantly affected by drugs. You can hardly have been unaware of the impact of drugs on your behaviour.
37Your use of drugs is not a mitigating factor in this matter but gives some context to the very strange nature of the offending in this matter.
38Your ongoing failure to curtail your drug use and the resulting destructive behaviour is a cause for concern which underscores the importance of community protection in sentencing in this case.
References
39Letters in support were provided from your uncle Blade Hahn, who runs an organisation called ‘Blade Hahn Professional Painting’. He describes you as a person he has worked with previously and says that you perform well in your duties and that you are hardworking and reliable. He seems to be offering you a position in his organisation as a painter.
40It is difficult to reconcile Mr Hahn's assessment of you as hardworking and reliable with your criminal history, some of which he witnessed. These offences, and the matters that are pending against you, including breaching a Community Correction Order.
41Your mother, Havva Afacan, says in her letter that you were not yourself at the time of the offending and that you were under the influence of substances, she also said this in her statement. She describes you as respectful generally and loved by your family. She said she knows you regret your actions, and that she would like you to come home and be with her and your sister.
42Your sister, Tugce Afacan, writes that you have always been her best friend, and you have a loving nature. She says that you have always been successfully driven to succeed and innovate as per your business together, 'Royalty Always', which is yet to launch. She says that you have tremendous support behind you, family and friends, and a full-time job. She says you had difficulty handling the loss of your father when you were in prison. She says a home is not a home without you in it. I take these matters into account, but the reality is for most of the past decade, you have been in prison for the various offences I have outlined.
43You have participated in courses while on remand and certificates were tendered including a business certificate, a building and construction course certificate, a psycho-educational program relating to drug use, and various ATLAS courses designed to assist personal improvement. You have been doing what you can in prison to address your problems and further your rehabilitation.
Gravity
44Arson is a serious crime carrying a significant maximum penalty of 15 years' imprisonment. In this case, the extent of the damage to the house was in my opinion significant, even though the quantum of the damage is relatively low. It seems your mother and your sister were able to organise for the repairs to be achieved at minimum cost. The ceiling in the hallway collapsed, and there was damage to the roof, the rafters and the ceiling joists. Furthermore, the fire spread from the master bedroom into the walk-in robe, and smoke damage extended through most of the house. There was a significant risk of the destruction of the house.
45There was a risk to the safety of your mother and sister, who were present in the house at the time the fire started. It is true they were awake and there were many points of exit to leave the house and, therefore, it was probable that they would have left the house without being hurt. Nonetheless, your mother had to re-enter the house to save the family dogs. Furthermore, lighting a fire in a house in a residential area is an inherently dangerous act which poses a threat to anyone in the house as well as neighbours and their property. In this case, it was fortunate that the fire was able to be contained relatively quickly.
46You have admitted by your plea the deliberate ignition of combustible material in your bedroom, which had been stacked there for that purpose.
47There are no victim impact statements in this case, but it is clear this was a frightening experience for your mother and your sister.
48It is an aggravating feature of this case that you were on a Community Correction Order at the time for offences including breaching an intervention order where your mother and sister were the protected persons.
49The conduct which constitutes the arson offence is also the basis of the contravention of intervention order offence which is the more serious breach offence because it is put on the basis you had an intention to cause fear and harm. You have relevant prior convictions for contravening intervention orders in relation to your mother and sister. Whilst the conduct that constitutes the arson and the contravention offence is the same, the elements of the offences are different. I have not taken into account the existence of the intervention order as an aggravating factor for the arson, or the intent to cause harm or fear as an aggravating factor, those matters being elements of the intervention order offence, so some cumulation is required for this offence but it will be minimal having regard to the overlapping criminality of the offences.
50In the circumstances, this was serious offending and general deterrence as well as specific deterrence and community protection are important sentencing principle.
51You did plead guilty at an early stage of the proceedings. I accept your plea is indicative of remorse and a willingness to facilitate the course of justice. Furthermore, the utilitarian value of your plea is substantial. You have spared the court and the prosecution the use of the resources required for a trial, and you have spared the witnesses, particularly your mother and your sister, the experience of having to give evidence in this case. You must receive a sentencing discount for your guilty plea.
Submissions
52Your counsel, Ms Murrell, submitted that a combination sentence of imprisonment and a Community Correction Order is an appropriate sentence for this offending. You have now been in custody for some 392 days.
53Ms Murrell relied on the prospect of employment with Mr Hahn and the family support of your mother and sister, who she submitted are committed to supporting your rehabilitation. She submitted you are extremely remorseful for the offending, including for the psychological and financial impact on your sister and mother. Given your plea of guilty and the recognition of remorse in the reference material, I accept you are remorseful for what you did.
54Ms Murrell submitted that the purposes of sentencing can be achieved through a combined prison sentence and correction order. She relied on the well‑known case of Boulton.[2] She referred to the risk that you are becoming institutionalised, given that you have now spent approximately eight years of your adult life in prison.
[2]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
55Ms Murrell relied on a series of comparative cases to establish that current sentencing practices allow for a disposition such as a combined order in this case.
56The prosecution submitted that having regard to the gravity of this offending and your substantial criminal history, including breaching a correction order at the time of the offending, the only appropriate sentence is a prison sentence with a head sentence and a non-parole period.
57I have taken into account current sentencing practices, which were discussed at some length on the plea. Both the prosecution and the defence provided me with comparative cases. Of course, each case turns on its own facts, and no two cases are the same. Current sentencing practices are a guide but not a controlling factor in deciding the appropriate sentence. What is required is individualised justice to the objective circumstances of your case and your personal circumstances.
58In my opinion, having regard to the objective gravity of this offending and matters personal to you, including your lengthy criminal history, the only appropriate sentence is a sentence of imprisonment with a head sentence and a non-parole period. In coming to the view that a Community Corrections Order is not appropriate, I have taken into account that these offences were committed whilst you were on a Community Corrections Order, which is subject to breach proceedings that are pending.
59I must in my opinion emphasise community protection, general deterrence, and deterrence that is personal to you. You have been given opportunities to rehabilitate by the courts over the last decade, but you have failed to do so. I have read the sentencing remarks of Croucher J, who in 2015 noted that you had been able to curb your drug use. That analysis proved to be over optimistic because you have lapsed back into consistent use of drugs since that time. If you do not address your drug use, your prospects of rehabilitation are poor. I can take only a guarded view of your prospects of rehabilitation.
60I am mindful not to impose a crushing sentence, and I have taken into account the submission that you are at risk of becoming institutionalised given the period of time you have spent in prison over the last decade.
61The total effective sentence imposed must be just and proportionate to the overall criminality of your offending. Substantial concurrency between the charges is necessary, particularly having regard to the overlapping nature of the offending in this case and that the same conduct constitutes both offences. As I said earlier, I have decided to impose a small period of cumulation for the contravention offence.
62The minimum non-parole period is the minimum period justice requires you to serve before becoming eligible for release. It mitigates punishment in favour of rehabilitation. It must be consistent with the objective gravity of the offending. In fixing the non-parole period, I have taken into account the mitigating matters in this case and the need to facilitate your rehabilitation with a period of supervision in the community.
Sentence
63In this matter:
64In relation to Charge 1, of arson or criminal damage by fire, you are convicted and sentenced to a period of imprisonment of 34 months.
65In relation to Charge 2, of contravening an intervention order with intent to cause fear and harm, you are convicted and sentenced to a period of imprisonment of 12 months.
66Two months of the sentence on Charge 2 is cumulative on the sentence for Charge 1. The total effective sentence therefore is 36 months. I fix a minimum non-parole period of 24 months.
67392 days is to be deducted from the sentence that I have imposed, pursuant to s18 of the Sentencing Act. That is the correct PSD, is it?
68COUNSEL: Yes, Your Honour.
69HIS HONOUR: Yes, all right. I indicate that but for your plea of guilty, I would have imposed a sentence of imprisonment of four years and two months with a minimum non-parole period of three years.
70Now was there another order I needed to make, Ms Liantzakis? Was there a forfeiture order or?
71MS LIANTZAKIS: No, Your Honour. No other ancillary order.
72HIS HONOUR: No other orders, all right. So no other orders are required. Thanks to both counsel for your assistance in this matter. I will now stand down. Did you want the link left on for a moment? It's up to you.
73MS MURRELL: No, Your Honour.
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