Director of Public Prosecutions v Akliz

[2023] VCC 668

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.CR-22-02127

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERDAR AKLIZ

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023
DATE OF SENTENCE:	28 April 2023
CASE MAY BE CITED AS:	DPP v Akliz
MEDIUM NEUTRAL CITATION:	[2023] VCC 668

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Armed Robbery – Commit Indictable Offence While on Bail – Entered a pharmacy carrying a wooden stick (First incident) – Demanded Valium – Surrendered to police – Transferred to psychiatric unit at Royal Melbourne Hospital – Released into community after assessment – Entered a pharmacy carrying a syringe (Second incident) – Significant criminal history related to mental health and substance abuse – Expert Opinion – Schizophrenia

Legislation Cited:      Crimes Act 1958 (Vic) s 75A; Bail Act 1977 (Vic) s 30B; Sentencing Act 1991 (Vic) s 5(2AA)(a)

Cases Cited:R v Nunno & Lunt [2008] VSCA 31; R v Boland [2007] VSCA 242; DPP v Rivette [2017] VSCA 150; R v Grossi (2008) 23 VR 500

Sentence:                  Imprisonment for 14 months and adjourned undertaking for a period of 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Gang	Office of Public Prosecutions
For the Accused	Mr A. Cameron	Angus Cameron Lawyers

HER HONOUR:

1Serdar Akuyz,[1] you have pleaded guilty to two charges of armed robbery, each charge carrying a maximum penalty of 25 years' imprisonment.[2]

[1]I note that although Mr Akyuz’ name is spelled ‘Akliz’ on all the documents, it was not in dispute that the proper spelling is ‘Akuyz’, and I adopt that spelling for the purposes of this sentence.

[2]Crimes Act 1958 (Vic) s 75A.

2You also agreed to have uplifted and pleaded guilty to two charges of committing an indictable offence while on bail - each charge carrying a maximum penalty of three months' imprisonment.[3]

[3]Bail Act 1977 (Vic) s 30B.

Facts for sentence

3On your plea, the prosecution tendered an amended 'Summary of Opening' dated 20 February 2023 - that document is attached to and forms part of these reasons. I note it was revised and updated on 14 March 2023, though it still bears the previous date.   I will not repeat it in its entirety but refer to it in summary form.

4On 20 May 2022 at about 11:00 am you were captured by CCTV pacing up and down in front of the South Preston pharmacy. In the images it looks as though you were waiting until the pharmacy was empty of customers, and when, at 11:04 am a customer left the shop, you put your hood over your head and went in. You carried a wooden stick about 20 cm long and a plastic bag.

5The pharmacist and her assistant were behind the counter.

6You went into the 'staff only' area and raised the stick to chest height, pointing it at the two women saying 'give me my Valium.'  When one of them asked you what you were doing you said again 'give me my Valium' and made a stabbing motion with the wooden stick towards the pharmacist's chest area. She was frightened.

7You then helped yourself to three boxes of 'Lyrica Pregabalin' each containing 56 capsules, varying in strength between 75 and 300 mg. You also took two boxes of diazepam each with 50 tablets of 5 mg. Together, the drugs were worth $124.13.

8You were in the pharmacy for a total of approximately 40 seconds. While you were there, the pharmacist triggered the silent duress alarm, then at 11:07 am she contacted police.

9A few hours later, at about 3:00 pm, you went to North Melbourne police station and spoke with a Senior Constable there; you told them that you were on bail and that you had just stolen medication from the Preston pharmacy. You gave the police officer a plastic bag containing the boxes of stolen medication.

10Concerned for your safety, police arrested you and you were taken to the Royal Melbourne Hospital by ambulance. You were admitted for psychiatric assessment.

11After staff at the Royal Melbourne were content with your state, you were discharged back into the community. 

12Three days later on 23 May 2022 at about 1:00 pm you went into a pharmacy in Brunswick. Again you appear to wait until the store was empty. You did not attempt to cover your face. This time you carried a plastic bag in one hand and in the other a syringe fitted with a needle filled with red liquid.

13You passed a member of staff and walked into the 'staff only' area and spoke to the pharmacist: 'where's the Valium', you said, 'I'm having an anxiety attack'.

14You held the syringe towards the pharmacist (this is seen on CCTV) and waved it toward him; he pointed out where the Valium was kept and backed away. You stood in front of the shelf for approximately 30 seconds repeating the words 'where are they'. The pharmacist begged you not to hurt him or his staff. 'I'm not going to hurt you', you said, 'just show me where the Valium is'.

15After you had loaded boxes of Valium into your arms you asked where the Lyrica was kept. You took as much as you could carry, dropping a box as you went. On your way out you said to the pharmacist 'don't follow me out there is people outside waiting'.

16Police came and started their investigation.

Arrest and interview

17You were apprehended nearby shortly afterwards. You made a range of admissions to the arresting officers. When they saw that a number of the blister packs of the stolen medication had been opened police took you to the Northern Hospital to be monitored; you were later deemed unfit for interview and were remanded in custody.

Prior criminal history

18You have an enduring criminal history commencing in Victoria in 1996. The first several years are characterised by relatively minor offences of dishonesty, public disorder and driving, but by 2001 you are being dealt with for offences against the person: recklessly causing injury; assault by kicking. Alcohol and drug related offending arises and in 2009 you were sentenced for driving in a manner dangerous causing serious injury and negligently causing serious injury. You were dealt with fairly regularly for breaching court orders including a family violence safety notice in 2018; this is followed by further family violence intervention order offences dealt with in 2019 and again, twice, in 2020. In 2021 you were sentenced for unlawful assault robbery and burglary in the Melbourne Magistrates' Court. I was told that you have been out of custody for about six months by the time of your commission of the offences with which I must deal.

19Yours is a persistent criminal history demonstrating that when you are mentally unwell or using drugs and alcohol, or both, your ability to conduct yourself properly is severely compromised.

Nature and gravity of the offending

20Armed robbery, by its nature and by reference to the maximum penalty that Parliament has assigned to it, must always be regarded as a deeply grave offence which frightens, and rattles and disturbs its victims. Nobody expects to be confronted by someone like you who, would have, at the very least appeared to be both desperate and aggressive and capable of hurting others. The people you frightened were in their workplaces, not expecting this frightening intrusion by you.

21That said, there are a number of features of your offending that I will refer to as reducing its gravity. First, your offending was clearly related to your desperate desire to alleviate your anxious and paranoid mental state at the time. It is clear from the CCTV you gave some attention to waiting until there were no customers in the stores. While it is clear you did do frightening things in the course of the armed robberies you limited these to what was strictly necessary to achieve your ends and no more. You tried to reassure staff in the second armed robbery.  The offending was disorganised and impulsive; it was of brief duration.

22It is clear that you intended to achieve two things at least in the course of the first armed robbery: an immediate alleviation of your disturbed mental state by using medication and your re-entry into custody; the first attempt to be taken into custody I note failed – as investigators clearly missed the link between you and the Preston armed robbery, to which you had confessed.

23The weapon used in the second armed robbery, makes it the more serious of the two offences, that weapon, carrying as it does, the ability to instil fear of contracting a blood borne disease, thoughts which no doubt entered the minds of your victims during that event.

24Your offending was desperate and disorganised; both events sitting below the mid-range on a scale of offending in its category.

Personal circumstances

25You are now 44 years old, born in Wollongong and raised there until you were 18.  You got into trouble at school but still managed to complete Year 11. You were 43 at the time of committing the offences before me.

26As a child you were subject to your father's strict discipline. You were also subject to an occasion of sexual abuse by an older family member.

27In 1995 you and your family moved to Mildura; your offending history commenced soon after. The most stable period in your adulthood was a period in Alice Springs from 2005 when you had stable work: no criminal convictions arose in that period.

28By 2009 you were being dealt with for causing a serious car accident in which you and another person were badly injured. It would seem that your first psychotic symptoms emerged after this incident as did your abuse of pain medication.

29After your release from custody in 2011 you went back to live with your parents who were by then living in Mildura; your relationship with your father then deteriorated and this is reflected in your prior convictions heard in Mildura at this time. In 2020 you were asked to leave your family home and came to Melbourne, became homeless, and have been regularly in custody since then.

30It is clear that you sometimes committed offences in Melbourne in the hope of being remanded into custody, and the relief that that environment gave you from your most immediate concerns.

Victim impact

31A single impact statement, tendered by Ms Hannah Crawford, who was working as a clerk in the Brunswick Pharmacy on 23 May 2022 was tendered. She writes of how your offending had a profound impact on her, on her state of mind, her inability to do ordinary things without feeling anxious, the impact on how she felt about being at work and how she has had to spend time getting treatment for these problems. I take the impact on her into account, and I also reason that the three other staff directly concerned with your behaviour also experienced at least some feelings of shock and disturbance in their workplaces, meaning, places where they are obliged to continue to be. You need to understand, Mr Akuyz, the dreadful impact of your offending on others; and I will take the impact on them into account on this sentence .  

Matters in mitigation

Pleas of guilty

32Your offending took place on 20 and 23 May 2022 but by 9 August 2022 you had made an offer to resolve your case to these pleas of guilty.  Yours are early pleas, and at any time they would attract a significant discount on your sentence, but at this time, in the wake of the COVID-19 pandemic and its crippling effect on the administration of justice, your pleas attract an additional and palpable reduction in your sentence.

Mental health

33The Mental Health Advice and Response service ('MHARS') report from Forensicare provided a summary of your various registrations as a mental health patient, your admissions for psychiatric treatment, episodes of involuntary psychiatric inpatient treatment, and diagnosis. This document became Exhibit C on your plea.

34In addition, your barrister tendered a report authored by Dr Kevin Ong, forensic psychiatrist, dated 6 March 2023.

35Although the emergence of your psychiatric illness in some of the materials is attributed to the car accident, there is evidence of your 'registration'  as a mental health patient in Mildura in the year 2000 and in a service called  'Inner West' in 2008.

36You have been admitted to hospital for psychiatric treatment while both in and out of custody multiple times between 2017 and 2022. I note your most recent discharge was from Ravenhall Prison Medical service in October 2022. Your admission there is recorded as between 12 June 2022 and 6 July 2022 – soon after your remand.

37In the opinion of Dr Ong, you have a 'well-established history of paranoid schizophrenia, a serious mental illness characterised by psychotic symptoms involving 'persecutory delusions causing [you] to fear for [your] safety.'[4]

[4]Report of Dr Kevin Ong dated 6 March 2023 p 4.

38It is also true that you have complicated and compounded your mental illness by using illicit drugs, though it would seem clear that you suffer from an underlying condition, and are not subject to a problem sometimes labelled 'drug induced psychosis.' In the opinion of Dr Ong, your psychosis was active at the time of your offending; your schizophrenia was untreated, you were using illicit substances and you had developed 'persecutory delusions.'

39Dr Ong also states:

' it is my opinion that assertive treatment of his schizophrenic illness with medication and follow up with mental health services remains paramount in reducing the risk of future offending. He would also benefit from direction to undertake assessment and treatment interventions with an Alcohol or Drug service.'

40I conclude that your active mental illness at the time of your offending reduces, to a significant degree, your moral culpability for your offending, and qualifies the role for general deterrence; your counsel conceded that your introduction of illicit substance use into that picture reduces to some extent the way these mitigating features of your sentence can be applied.

41Further I accept that you are still unwell, and have been for a significant period of the time that you have spent on remand. I accept Dr Ong's opinion that your condition has weighed upon you and increased the burden of your incarceration and this period on remand has been both lengthy and uncertain.

Time of sentence

Admissions, co-operation

42I find you are remorseful for what you did, you made admissions early on (that were not, for whatever reason, acted upon by police); you pleaded guilty early, and you expressed, in the course of your offending, some sentiments which were directed at attempting to reassure your victims that you were disinclined to cause them harm.

Conditions of custody

43Your most recent term of imprisonment has been during the privations brought about by the COVID-19 pandemic, and it is widely accepted that prisoners have endured more difficult circumstances during this time, and I take this into account in the sentencing calculus.

Delay and time on remand

44You were committed to custody on 23 May 2022 and have remained there, in a state of uncertainty for nearly a year. I take into account the fact that this uncertainty and delay is punitive and mitigates your sentence.

Prospects of rehabilitation

45I find your prospects for rehabilitation are dependent upon your acceptance of and maintenance of long-term treatment for your mental illness, and upon your ability to find a place to live where you are both safe and accepted. You have now accrued however, a significant criminal history; and you can expect any future sentences to lengthen. 

Sentencing principles

46The roles for general deterrence, denunciation and punishment, by reference to the reduction in moral culpability, are reduced in this sentence, though I do still see some role for some punishment, the main purposes of this sentence are specific deterrence and the protection of the community, which will be best affected by the treatment for your mental health.

Submissions as to sentence, and consideration

47Your barrister submitted for a disposition that avoided the uncertainty and risks of some form of conditional release in Victoria given that you have no support in this State and have experienced serious problems with housing in the past, including in the period leading up to these offences where you were effectively homeless at the time. You have no family support in Victoria, and there is a strong likelihood, given past experience, that any housing in Victoria will be wanting in stability and support.

48Essentially, the tension in resolving this sentencing exercise is articulated in the report of Dr Ong: on the one hand, Dr Ong writes that you will require assistance with suitable stable accommodation post release, (and past experience has shown that this is unlikely to happen in Victoria) and on the other, Dr Ong's opinion is that you require 'assertive treatment’ of your schizophrenic illness with medication and follow-up with mental health services and this remains paramount in reducing the risk of further offending. As I have already observed, I regard the protection of the community to be central in this sentence.

49Your family in Adelaide have persisted with their offer of accommodation for you in that city; the evidence before the Court is that they are prepared to organise your journey to them by air, post release. Again, I hold in mind the past intervention order breaches in relation to your family, and that their continued support of you takes place in that context.

50I was provided with a range of materials that suggested alcohol and drug counselling is available to you in South Australia and that your family would support you in engaging with those services. This falls short of what is recommended by Dr Ong, which is sustained professional treatment for your mental illness, including engagement with a local area mental health service.

51Obviously I am prohibited from taking into account future executive action in this sentencing calculus,[5] but I must consider your suitability for a Corrections Order before I engage that form of sentence.

[5]Sentencing Act 1991 (Vic) s 5(2AA)(a).

52In the end, I was discouraged from combining your sentence of imprisonment with the community corrections order because of the issue of your not having housing or family support in this State. During the plea, I learned that the transfer of a Victorian Corrections Order to South Australia is possible, but the current state of affairs (described in the 'Court Assessment & Prosecutions Services Central Unit' email dated 21 March 2023) is that you would have to be released into the community, report to a Victorian Community Service location, apply for transfer, submit to an assessment for suitability, then await a decision, a process which is predicted to take up to three months. All of which time you would be without family support and in uncertain housing, and the risk of being without appropriate mental health support.

53I have also considered whether you are a suitable candidate for a parole sentence, and, for the same reasons as those that bear upon the consideration of a Corrections Order, I do not consider this to be a suitable disposition having regard to your circumstances.[6]

[6]R v Nunno & Lunt [2008] VSCA 31 [79]; R v Boland [2007] VSCA 242 [13] per Nettle JA.

54I have settled on imposing a sentence of imprisonment on you for the armed robberies in combination with a conditional adjourned undertaking on the summary offences of committing an indictable offence while on bail.

55It is my hope that this structure will have a degree of accountability for you for your Victorian sentence, while allowing your return to your family in Adelaide, who have indicated they will support you in getting linked into mental health treatment , which I regard, as I said before, as protective of the community.

Aggregate sentence

56Your counsel submitted I should impose an aggregate sentence on the armed robbery offences, given the similar character in a series of armed robberies. However, the indictment contains only two counts, and I am aware of authority that strongly discourages the imposition of an aggregate sentence where there is only a small number of counts making up that sentence.[7]

[7]DPP v Rivette [2017] VSCA 150, 87; R v Grossi (2008) 23 VR 500, 510 [39].

57I will therefore impose individual sentences and employ moderate cumulation to give effect to the principle of totality.   I select Charge 2 as the base sentence, on account of the choice of weapon making the offending somewhat more serious.

58The sentences I impose are therefore:

59On Charge 1, armed robbery, you are convicted and sentenced to 10 months' imprisonment.

60On Charge 2, armed robbery, you are convicted and sentenced to 11 months' imprisonment.  This is the base sentence.

61I direct that 3 months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2, making a total effective sentence on the indictable offences of 14 months. I do not fix a minimum non-parole period for the reasons set out above.

62On the related summary offences of committing an indictable offence while on bail, you are convicted and placed on an adjourned undertaking, with conditions. Those conditions are - and in a moment I will give you a moment to speak to Mr Cameron about them:

63I require you to appear in Court in Victoria by video link on 21 August 2023. On that date, I require the following matters to be in evidence before the Court:

(a)   Evidence of your having attended a general practitioner and obtained a referral to the relevant public mental health service for your assessment by a psychiatrist; or

(b)   Evidence from a psychiatrist who has consulted you and which confirms a course of treatment; and

(c)   Evidence of your attendance at, and completion of a 'Uniting Communities' intake session.

64The adjourned undertaking also requires you not to commit any other offences for the period of the adjournment, being 12 months.

65I restate that the appearance in Victoria by video link will be at 9:30 am on 21 August 2023.

Pre-sentence detention

66I declare that you have already served 340 days in custody to be reckoned as already served pursuant to this sentence.

Section 6AAA

67Pursuant to s 6AAA of the Sentencing Act1991, I declare that had you not pleaded guilty, but been found guilty after trial, I would have imposed a total effective sentence of three years with a non-parole period of two years.

Ancillary Orders

68I make the disposal order for the seized medication as sought.

69Mr Cameron, what I am going to do now is briefly stand down so that you can speak to Mr Akuyz about the adjourned undertaking and about the sentence in general, then I will ask Mr Akuyz whether he is prepared to make that undertaking, noting that in fact it will need to be a signed undertaking which will be transferred on paper to Mr Akuyz in custody, but I want him to have some advice about it and understand what it is that he is promising to do.

70MR CAMERON:  Could I ask Your Honour just to repeat what evidence is required?

71HER HONOUR:  The conditions, yes.

72MR CAMERON:  Thank you.

73HER HONOUR:  So the first two are an or:

(a)   Evidence of your having attended a general practitioner and obtained a referral to the relevant public mental health service for your assessment by a psychiatrist.  So a GP referral to a psychiatrist; or

(b)   Evidence from a psychiatrist - which just presumes being further down the track - who has consulted you and which confirms a course of treatment.  So if you can get that far, good, but that might not be possible.

74MR CAMERON:  So he is on his way to a psychiatrist or he has been - - -

75HER HONOUR:  He is on his way or he has achieved it.

76MR CAMERON:  Yes, Your Honour.

77HER HONOUR:  And I want: In the materials that were tendered on the plea there was a 'Uniting Communities' document which said that there was an assessment that can take place; I want him to have done one of those.

78MR CAMERON:  From memory, Your Honour, there were two options.  Is Your Honour concerned about which one it is?

79HER HONOUR:  I thought the assessment was a general one but I am more interested in the alcohol and drug.

80MR CAMERON:  Yes, Your Honour.

81HER HONOUR:  Yes, all right.  So I will stand down briefly for you to give Mr Akuyz advice about that and then I will simply ask him whether he is going to make that promise to do those things and come before the court in August, and then just also let your client know that that will come through on a bit of paper as well.

82MR CAMERON:  Yes, Your Honour.

83(Short adjournment.)

84HER HONOUR:  Yes, Mr Cameron have you had a chance to explain the conditions of the adjournment to your client?

85MR CAMERON:  Yes, Your Honour, I have explained those conditions.  He has indicated to me that he intends to enter into that bond and I have explained the process of him receiving the paperwork in custody.

86HER HONOUR:  Good. I'll just speak directly then to Mr Akuyz.  Mr Akuyz, do you understand what you need to achieve after you leave Victoria?

87OFFENDER:  Yes, I understand.

88HER HONOUR:  Good.  It is really important that you do those things.  It is important for a range of reasons, partly because it is an undertaking to the Court, but also you need to take very very seriously your need for continued commitment to your mental health, because from that everything else flows, all right.

89OFFENDER:  Yes, I understand.

90HER HONOUR:  So your family are going to support you, I think, to get to those appointments.

91OFFENDER:  Yes, they are.

92HER HONOUR:  Good, and I will see you by video link on 23 August at 9:30 am.  You don't have to come back to Victoria, you can just do it online?

93MS GANG:  Your Honour, was that 21 or 23?

94HER HONOUR:  I beg your pardon?  I meant to say the same date, and I have said the 23rd, that's what I - - -

95MS GANG:  Before Your Honour stood down, that was 21 August.

96HER HONOUR:  I beg your pardon, let me just double check.  It is the 21st, I beg your pardon everybody.

97MS GANG:  Thank you, Your Honour.

98HER HONOUR:  21 August at 9:30 am by video link.  And your barrister has also explained to you, Mr Akuyz, that you'll get the paperwork to sign in custody and that is another part of your undertaking, that's how you express your promise to do those things.

99OFFENDER:  Yes, I understand.

100HER HONOUR:  All right.  Ms Gang, have I omitted anything?

101MS GANG:  Not from my perspective, Your Honour.

102HER HONOUR:  Thank you.

103MR CAMERON:  I have omitted something, Your Honour, relatively ancillary to this.

104HER HONOUR:  Yes.

105MR CAMERON:  But I won't be funded to appear at the return of the bond.  I'll make every effort to do so or have an associate of mine do that - - -

106HER HONOUR:  Yes.

107MR CAMERON:  - - - and I'll put in the diary and have correspondence with Your Honour's associate about that.

108HER HONOUR:  Yes, we'll do our best.  Thank you, I appreciate that.

109MR CAMERON:  Thank you, Your Honour.

110HER HONOUR:  Thank you counsel for your assistance.  We will rise.

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