Director of Public Prosecutions v Altundas
[2013] VCC 2003
•29 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02313
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FATIH ALTUNDAS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2013 | |
DATE OF SENTENCE: | 29 November 2013 | |
CASE MAY BE CITED AS: | DPP v Altundas | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2003 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of false imprisonment – plea of guilty – of moral culpability and general deterrence and burdensome effect of imprisonment due to psychological impairment - Community Corrections Order of 18 months.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958.
Sentence: Community Corrections Order of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Hayward | Sharon Pattison, Office of Public Prosecutions |
| For the Accused | Mr A Eidelson | Aaron Eidelson |
HER HONOUR:
1 Fatih Altundas, you have pleaded guilty to one charge of false imprisonment. This offence carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”).
3 The background to your offending is as follows. Your victim, Nathan Stewart, is aged 16 years. On 16 April 2012, he had been prevailed upon by his older brother and another friend to steal a motorbike. Following the theft, an attempt was made to sell it to your co-accused, Ebu Gultekin. Mr Gultekin did not pay for the motorbike. Instead, he scared off Nathan Stewart, his brother and friend, and stabbed the friend in the hand with a knife, causing the three young men to drive away, leaving Mr Gultekin in possession of the motorbike. He then made it available to your younger brother, Baris Altundas. Your brother was apprehended by police riding the stolen bike on 17 April 2012.
4 Your brother, Baris, was arrested and placed in the cells of the Broadmeadows Police Station. After learning that he was in custody, you attended the cells to bring him some fresh clothing. Your brother told you that Mr Gultekin knew who had stolen the bike and asked you to “follow them up”. Mr Gultekin was not personally known to you, however, you had been to school with his cousin. On the evening of 17 April 2012, you obtained Mr Gultekin’s telephone number from his cousin. You telephoned Mr Gultekin and told him to find the person who had originally stolen the motorbike. It was agreed that this person should be forced to go to the police station whether he wanted to or not. There is no evidence that you knew that Mr Gultekin had, in effect, stolen the motorbike from Nathan Stewart, his older brother and his friend. Nor is there any evidence that you were acquainted with the fact that Mr Gultekin had a criminal history for violence.
5 On 18 April 2012, Mr Gultekin, in company with Abraham El-Ali and Jayden Naggs, went looking for Nathan Stewart. He was located at Meadow Heights Shopping Centre in the company of two friends. While Mr Gultekin remained in a vehicle, Mr El-Ali approached Nathan Stewart stating, “come, we want to have a talk to you, follow me”. Nathan Stewart refused to come and he and his friends walked away. Mr Gultekin, with Mr El-Ali and Mr Naggs, then pulled up beside Nathan Stewart. Mr Gultekin grabbed Nathan Stewart by the arm and forced him into the car by pulling out a knife and walking him to the car. Mr Gultekin told him:
“My mate got locked up for that motorbike. We are going to take you to the police station and you are going to tell them that we didn’t know it was stolen and you’re going to take the rap for it. Get into the car.”
6 Mr Gultekin pushed him into the back seat of the car beside Mr Naggs. They drove off and Mr Gultekin then stopped the car in a back street in Meadow Heights, got out and opened the back door and punched Nathan Stewart in the face. He then commenced driving again, locked all the doors of the car, and took possession of Nathan Stewart’s phone.
7 Mr Gultekin then drove to your house, where he informed you that he had located the person who stole the motorbike. You then got into the back seat of the car beside Nathan Stewart, pushed him into the middle of the seat, and stated “you better get my brother out of this shit”. The doors of the car were again locked.
8 Mr Gultekin then drove towards the Broadmeadows Police Station and, several times, told Nathan Stewart that he was to tell the police that he had sold the motorbike to Baris Altundas for $150, that he did not know it was stolen, and that he did not know him, Mr Gultekin. He instructed Nathan Stewart to tell police that they were to put him, Nathan Stewart, in the cells and let Baris go.
9 It is conceded by the prosecution that there is no evidence that you knew that Mr Gultekin would use a knife to force Nathan Stewart into the car or that he would punch him or that he would take his mobile phone.
10 Yourself and Mr Gultekin walked into the Broadmeadows Police Station with Nathan Stewart and stood either side of him at the counter. Nathan Stewart told the police officer on duty that he, not Baris, had stolen the bike. Police arrested Nathan Stewart for the theft. However, upon asking him whether he had come to the police station of his own free will, he replied “no, it was more of a kidnapping”. Shortly thereafter, yourself and Mr Gultekin were arrested in the foyer of the Broadmeadows Police Station. Mr El-Ali and Mr Naggs, who were waiting in the car outside the police station, were also arrested. When police searched the vehicle, they located a silver flick knife under the front seat of the car.
11 On 18 April 2012, you participated in a record of interview. You told the police that you just wanted to bring the boy who stole the bike straight to the police station and that you did not touch him or scream at him. You said that you wanted your brother out of the police station because he did not steal the bike. You expressed that you wished that you had called the police instead of doing what you had done. You admitted that if Nathan Stewart had wanted to get out of the car while you were in it, he would not have been allowed to get out of the car. You stated that Nathan Stewart admitted that he was the one who had stolen the motorbike and was going to own up to it. You stated that maybe Nathan Stewart would have been fearful, but you just wanted to bring him to the police because the theft of the bike was not your brother’s fault. You stated that you thought you had a legal right to bring him into the police station, but wished that you had not done so. You said that you had not told Nathan Stewart what to say to the police but simply to “own up to it”. You stated that you did not hear Mr Gultekin telling Nathan Stewart what he should say to the police and that no one threatened him. You stated that you basically wanted to help your brother out and meant no harm to anyone. You thought that Nathan Stewart should admit to the police that had stolen the car and thought that you were doing the right thing.
12 You are presently aged 31 years, having been born on 1 February 1982. You come before the court with a limited criminal history. Over six years ago, you appeared before Broadmeadows Magistrates’ Court on 27 February 2007. You were convicted of driving whilst your authorisation was suspended, for which you were sentenced to be imprisoned for two months, which sentence was wholly suspended for a period of 12 months. You were also convicted of stating a false name and failing to obey a no entry sign and fined an aggregate of $300.
13 You were born in Turkey and arrived in Australia with your parents when you were aged four years. You had an older brother who was five years your senior. Subsequently, your parents had your younger brother, Baris, who is approximately 15 years younger than yourself. You were apparently a close family and your father worked hard in two jobs to support you.
14 You were born with a congenital disorder known as Crouzon Syndrome. One of the features of this medical condition is severe facial deformity known as mandibular prognathism, which causes the lower jaw to outgrow the upper jaw, resulting in an extended chin. Between the ages of eight and 20 years, you underwent approximately 14 operations to correct this deformity. Your health was also adversely affected by severe head injuries received by you at the age of eight years when you were knocked off your bicycle by a car. Unfortunately, Crouzon syndrome is also associated with poor development of the hearing canals, which results in impaired hearing. This resulted in poor language development and impaired cognitive function, affecting verbal comprehension and the ability to express thoughts in words. As a primary school student, your intellectual capacity was considered to be well-below normal and you experienced learning difficulties. You also suffered cruel teasing and bullying due to your physical appearance, poor hearing and learning difficulties. You ultimately ceased attending school after completion of Year 10.
15 Your older brother, Neje, was a very important person in your life. He was apparently a talented soccer player who played professionally for Hume United. He was well-regarded within the local community of Turkish people and looked after you and ensured that you were included in all social functions associated with the soccer club, which was really your only social life as you grew up. Neje suffered a painful failure of his second marriage, which resulted in him becoming depressed. He also suffered knee injuries, which prevented him being able to continue to play soccer. Tragically, in December 2008, he committed suicide by hanging. You were 25 or 26 years of age at this stage and living with your brother. You came home and found him and had to bear the responsibility of letting your parents and younger brother, Baris, know of what had happened.
16 Your mother suffers a number of physical medical conditions and also anxiety and depression, for which she has been treated by a psychiatrist for approximately eight years. Her condition was exacerbated, understandably, by the tragic death of your brother. Your father, too, was devastated, and you, apparently, saw it as your role to try and be strong, to keep the family together, and look after your little brother but, it seems, you had neither the intellectual or emotional capacity to do this, particularly whilst dealing with your own very significant grief.
17 A report by Ms Semra Durmaz, psychologist, dated 6 November 2013, was tendered on the plea (Exhibit “1”). She has expressed the opinion that you have never dealt at an emotional level with many issues from your past, including the impact of Crouzon Syndrome upon you, your bullying at school, and your brother’s suicide. She considers that you currently fulfil the criteria for Major Depressive Disorder and Post-Traumatic Stress Disorder with debilitating symptoms of severe depression and a severe level of anxiety. Although your cognitive ability has not been assessed since you were seven years old, Ms Durmaz expressed her impression that your cognitive function is below average.
18 The court was told that in December 2011 you married. It was an arranged marriage in accordance with your Muslim faith. Prior to it your wife had been living in Turkey. You have a daughter aged one year and your wife is expecting another child in January 2014.
19 You had been supporting yourself and your family by running a small pool hall business which had been purchased for you by your father when you were 24. However, you became progressively more psychologically unwell, particularly after being charged in relation to the matter for which I have to sentence you. The business was sold for $120,000 last year, and your counsel told the court that you had dissipated the entirety of the sale proceeds by gambling giving money to others who took advantage of you.
20 The court was told that your depression had become so bad that you had lost all interest in things and were spending time at home all day in your pyjamas. Indeed, the plea hearing was unable to proceed on 25 November because you were so unwell. Your father gave evidence that he had to use great efforts to coax you to come to court and you have missed various appointments for psychological counselling, as well as for a hearing assessment, because you simply could not motivate yourself to attend.
21 A brief report from your general practitioner, Dr Erciyas, dated 25 November 2013 (Exhibit “4”), states that he has been treating you since 1987. You suffer from Type II Diabetes and mixed anxiety and depression, for which you have been assessed by a psychiatrist, Dr Roger Chau, as well as the psychologist, Ms Durmaz. He noted that you had recently been admitted to the Urology Department of the Northern Hospital for a testicular infection on 5 November 2013. He also noted that you experience sleep disturbance, and stated that you were taking multiple medications and have a depressive illness. However, it would appear that you are, in fact, not receiving medication for treatment of your psychological state but only for your diabetes.
22 Mr Altundas, false imprisonment is a serious crime as reflected by the maximum penalty of 10 years’ imprisonment. In sentencing for this offence, usually there would be significant emphasis upon denunciation of your conduct and general deterrence. A message would generally need to be sent out to the community that people who are minded to take the law into their own hands will be appropriately punished. It is plain from the Victim Impact Statements of Nathan Stewart and his mother (Exhibit “B”) that there has been a serious adverse psychological effect on each of them and their whole family from the events of 18 April 2012. Nathan was clearly terrified by being abducted and his mother, understandably, was wracked with anxiety upon learning that it had occurred and having no idea what had become of him. I do take into account that some of the matters mentioned in the Victim Impact Statement are a consequence of Mr Gultekin’s thuggish conduct and are not attributable to the false imprisonment alone.
23 I accept that your culpability is at the lower end of the scale compared to that of Mr Gultekin. I accept that you did not know Mr Gultekin or his two associates who were in the car. Indeed, Mr Gultekin is some 10 years younger than you, and Mr El-Ali was only 17 at the time. I accept that these are not people with whom you mixed. I accept that your conduct was motivated by loyalty to your younger brother in the context of already having lost your older brother in tragic circumstances.
24 It is difficult to understand why you would have thought it appropriate to have someone else round-up the person who had stolen the car and bring them into the police station, rather than simply notifying the police. However, it seems that you held a genuine belief that this was appropriate. There is no evidence that you knew that Mr Gultekin was lying when he claimed that your brother had purchased the motorbike for $150, rather than he having stolen it from the original thieves.
25 All in all, your behaviour seems to have been a naïve and misguided attempt to help your brother. I accept that there is no evidence that you instructed Mr Gultekin to treat him with violence or menace, and that you genuinely believed that, as the person who stole the motorbike, Nathan Stewart should be brought to justice. You had no comprehension that because your brother was using the stolen motorbike as his own, that he could be guilty of theft.
26 In these circumstances, your role is very significantly less than that of Mr Gultekin, who abducted Nathan Stewart with violence and behaved in a brutal and intimidatory fashion towards a young boy who was several years his junior. Also, it would have been apparent to him that having two other males in the car with him would increase the sense of menace to Nathan Stewart. Obviously, you had no knowledge of these people or the fact that they were to accompany Mr Gultekin when he went to find Nathan Stewart. Also, I accept that you did not know that Mr Gultekin was to use a knife on him or gratuitously punch him to the face or to take possession of his mobile phone.
27 Generally, it is appropriate to apply parity when sentencing offenders who have been engaged in the same criminal conduct. However, in this case, it is not possible to do so.
28 The proceedings against Jayden Naggs were discontinued. The proceedings against Abraham El-Ali are before the Children’s Court and have not been finalised. Obviously, different sentencing principles apply to dealing with offenders who are children.
29 As far as Mr Gultekin is concerned, he was dealt with for, not only the false imprisonment, but also common law assault and attempting to pervert the course of justice. On the charge of false imprisonment, he was convicted and sentenced to 18 months’ imprisonment. The total effective sentence for all three crimes was two years and 10 months’ imprisonment. However, his situation was complicated, not only by his more serious and extensive prior criminal history, but also by subsequent offending for which he was sentenced by this Court on 18 October 2013. On that day, he was convicted of theft of a car, theft of petrol, intentionally causing serious injury, attempted armed robbery and theft of a mobile phone, as well as breach of a suspended sentence. He was sentenced to a total effective sentence of six years and seven months’ imprisonment with a non-parole period of three years and four months’ imprisonment. When he was sentenced for this false imprisonment, along with the common law assault and attempting to pervert the course of justice, on 11 November 2013, he was sentenced to a total effective sentence of two years and 10 months’ imprisonment. Of this sentence, 12 months was to be served cumulatively upon the sentence which he was already serving, and a new non-parole period of four years commencing 18 October 2013 was set.
30 All of these factors make it impossible to reflect the principle of parity in the sentence that I give you. In any event, given your lesser role and significantly less lengthy and less serious criminal history, compared to that of Mr Gultekin, it would not be appropriate to consider a similar sentence to that which was imposed upon him for the offence of false imprisonment.
31 In sentencing you, I take into account that there is no evidence that you are an innately criminally-minded person. I also take into account that you have had a very difficult life by reason of your congenital disorder, which has required multiple operations and had adverse effects upon your cognitive development, speech, capacity to learn, hearing and appearance. These factors, the car accident causing a head injury when you were eight years old, and the tragic death of your brother by suicide, would appear to have combined to give you some serious, underlying, psychological problems by way of Post-Traumatic Stress Disorder and anxiety and depression.
32 Unfortunately, notwithstanding that these matters have been known to your general practitioner, and that you were referred to a psychiatrist (no report from whom was put before the court), and sent to a psychologist in more recent times, you have not undergone treatment for your psychological state. You appear to have slipped into a serious low mood which has rendered you incapable of functioning properly, and this has impacted upon your wife’s well-being and required significant support from your hard-working father, who already has an invalid for whom he must care, namely, your mother.
33 In sentencing you, I take into account your psychological state, as described by Ms Durmaz as reducing your moral culpability for the offending, moderating the emphasis to be placed on general deterrence, and impacting upon the type of sentence which should be imposed. I also take into account that, for a person with your psychiatric state, a term of imprisonment would weigh more heavily upon you, and there is a risk that it may have an adverse impact upon your mental health.
34 I also take into account that you have pleaded guilty to the offence and, indeed, had offered to plead guilty to the offence of unlawful imprisonment on 16 October 2013. However, the prosecution were not prepared to accept that plea at that stage. It is difficult to know whether your plea is a remorseful one because you seemed to firmly believe that you were entitled to have someone round-up Nathan Stewart and bring him to the police station. However, I take into account that there is uncertainty about your level of cognitive functioning. Although this has not been formally assessed since you were seven years old (at which stage you were functioning at the level of a four year old), Ms Durmaz expressed the view that your cognitive function at this stage appears still below average.
35 I consider that, if you are able to obtain treatment for your psychiatric state, then this is likely to assist your rehabilitation and be in the best interests of the community. Given your relative lack of prior convictions and the smaller role that you played compared to Mr Gultekin, I am not satisfied that the only appropriate sentence is one of imprisonment.
36 I have obtained an assessment for suitability for a Community Corrections Order and I consider that that is an appropriate disposition in your case. Given your psychiatric state and the fact that you do not drive a motor vehicle and are reliant upon your father for transportation, I consider it is not appropriate to order that you undertake unpaid community work. It would appear that, recently, you have had difficulty doing even part-time work as a waiter on a couple of occasions a week and, obviously, with your wife’s impending confinement with your second child in January, there will be added strain on your already fragile psychological state if you are required to undertake community work.
37 On one charge of false imprisonment, you are convicted and sentenced to serve a Community Corrections Order of 18 months commencing from today. The terms of the order are as follows:
(a) that you do not commit whether in or outside Victoria during the period of 18 months an offence punishable by imprisonment;
(b) that you comply with any obligation or requirement prescribed by the regulations;
(c) that you report to and receive visits from the Secretary of the Department of Justice during the period of the order;
(d) that you report to the Broadmeadows Community Corrections Centre by Monday, 2 December 2013 at 11am;
(e) that you notify the Secretary of the Department of Justice of any change of address or employment within two clear working days after the change;
(f) that you do not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary;
(g) that you comply with any direction given by the Secretary that is necessary to ensure that you comply with the order.
38 In addition, the following conditions are attached to the order:
(i) that you undergo treatment and rehabilitation in relation to your psychiatric and/or psychological condition pursuant to s48D(3)(e); and
(ii) that you be supervised, monitored and managed as directed by the Secretary for the term of the order.
39 I cannot make this Community Corrections Order unless you agree to it. Do you agree to be bound by its terms and conditions?
40 Mr Altundas, you must understand that if you do not comply with the order you may be charged with an offence of contravening the Community Corrections Order and, if you are found guilty of that offence, the order may be cancelled and you may be dealt with for the offence of false imprisonment as though you had just been found guilty of that offence.
41 Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the sentence imposed would have been 12 months’ imprisonment with a non-parole period of six months.
42 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure by the taking of a scrapping from the mouth, in accordance with sub-division 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.
43 I am satisfied that this order is justified by reason of the seriousness of the circumstances of the offending and the fact that the order is not opposed.
44 Mr Altundas, you need to be aware that this involves placing a cotton swab inside your mouth to take a sample of saliva. If you do not co-operate with police, then they are entitled to use reasonable force to obtain the sample.
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