Director of Public Prosecutions v Atesok
[2018] VCC 232
•7 March 2018
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL DIVISION
Revised (Not) Restricted Suitable for Publication
Case No. CR-16-01311
DIRECTOR OF PUBLIC PROSECUTIONS
v
SERDAR ATESOK
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATEOF HEARING: | 9 & 21 November 2017 |
| DATEOF SENTENCE: | 7 March 2018 |
| CASE MAY BE CITEDAS: | DPP v Atesok |
| MEDIUMNEUTRAL CITATION: | [2017] VCC 232 |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – robbery – false imprisonment – pleas of guilty – severe polysubstance abuse – limited rehabilitation prospects – totality – sentence of immediate term of imprisonment imposed.
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APPEARANCES:Counsel Solicitors
For theDPP Ms M. Mahady (Plea) Mr M. Vella (Sentence)
John Cain, Solicitor for Public Prosecutions
For the Accused Ms N. Kaddeche Turnbull Lawyers
COUNTY COURT OF VICTORIA
250 William Street, Melbourne 186730
HER HONOUR:
1Serdar Atesok, you have pleaded guilty before me to one charge of robbery and one charge of false imprisonment that arose out of events that occurred on 22 May 2015 at Reservoir.
2The charges are serious and that is reflected in the maximum penalty prescribed by Parliament, and that is, 15 years’ imprisonment for robbery and 10 years’ imprisonment for false imprisonment. In addition, you have admitted your criminal record.
3You have a significant criminal record, which has been described by Justice Lasry as being very substantial and serious. Your past criminal history spans the period from 22 November 2005 through to 10 May 2015. You have prior convictions for violence against the person, namely: intentionally cause injury (2005); recklessly cause injury (2010); and there are also charges for dishonesty offending and multiple convictions in relation to drug-related offending.
4Over the years you have received a variety of dispositions from courts including Community Based Orders, suspended sentences, an Intensive Correction Order and Community Correction Orders, as well, you have a history of contravention of those various orders.
5On 28 September 2017 His Honour Justice Lasry of the Supreme Court of Victoria, sentenced you to a total effective sentence of 12 years’ imprisonment with a non-parole period fixed of nine years in respect to a charge of theft of a motor vehicle, manslaughter and arson.
6The sentence concerns you being involved in a drive-by shooting that occurred on 31 December 2015. The car that you were driving at the time of the commission of the offence was stolen and following the shooting, there was an attempt to destroy the car by fire.
You are currently undergoing sentence and you are not yet eligible for release on parole.
Turning now to the matters before me, I will sentence you on the basis of the Summary of the Prosecution Opening that was read at the plea hearing.
The offending, the subject of the two charges, occurred on 22 May 2015. At the time of the offending you were in company with Mr Imbraim and Mr Pieri. It is not really clear what was the motivation for the offending. Suffice to say I accept the submission put by Ms Kaddeche that the motivation for your offending was that it related to the collection of a drug debt on behalf of other persons unknown.
At around 6.15 pm on 22 May 2015 the victim, Mr Omar, had driven his silver BMW motor vehicle to an address in Reservoir. He was visiting a friend, Rebecca Tedesco. Upon arrival she greeted him and then they walked down the driveway into a garage located on the southern side of the property.
As Mr Omar entered the garage he saw you seated on a couch. His friend, Ms Tedesco, then exited the garage. Then two other men, namely Mr Imbraim and Mr Pieri, entered the garage through a roller door and following this there were physical assaults committed against Mr Omar. You were involved in those physical assaults. You pushed the victim down onto the couch in the garage. Mr Imbraim jumped on top of him, causing both of them to fall to the floor. Mr Imbraim then pressed his elbow against the victim’s neck, causing his head to be pinned against the floor and pinning the victim to the ground.
You and Mr Pieri kicked and punched the victim whilst he was pinned to the floor and whilst doing that you searched through his pockets, looking for items of value. Demands were made and eventually he handed over his mobile phone, fearing further assaults. Whilst searching, you or one of the other offenders stole keys to the BMW and a silver Bvlgari watch (Robbery).
You then exited the garage with Mr Pieri and located the BMW parked outside the address.
In your absence Mr Imbraim, continued to punch the victim to his head.
Eventually he was told to strip naked to see whether he had anything else on his person.
The victim informed you all that he was expected at a family birthday and that his family would be suspicious if he did not arrive. Words were then exchanged and it was agreed that he be bundled into the car by Mr Imbraim and yourself. Mr Imbraim drove off with the victim to an address near Thomastown and you followed behind in another vehicle.
After getting petrol at a 7Eleven store at Thomastown the two cars drove in convoy to the premises. Mr Imbraim went into the premises for a short while and returned to the BMW and drove off. Your convoy then went to a nearby park in Epping and at that location you went into the rear passenger seat of the BMW and punched the victim to the head. The BMW was then driven away from that location while you were continuing to punch the victim around the head.
Eventually the victim was driven to the Australia Post distribution centre located behind the MacDonald's, Epping and all the while you were continuing to punch him around the head. He was in real fear for his life. Another vehicle drove towards your vehicle whilst at that location and that caused Mr Imbraim to drive out of the car park and onto High Street, Epping. Whilst stationary at the intersection of Charles Road and High Street the victim activated the electric handbrake and made good his escape. Prior to him exiting the vehicle you grabbed him by the neck and tried to pull him back into the vehicle but nonetheless he was able to escape, running along High Street into incoming traffic (False imprisonment).
He was able to obtain some assistance and was taken to Northern Hospital where he received treatment for multiple stab wounds to the left wrist, left hamstring, bruising and swelling to his head and face. His BMW was retained by the group.
Ms Kaddeche did not take issue with the Summary apart from one matter contained in paragraph 11 of the Crown Opening that concerned an assertion that you cut the belt of the victim’s pants, causing them to fall at some stage. No evidence was led concerning this aspect by the Crown. Ms Kaddeche asserted, and it was not disputed, that there was no evidence in the depositional material to support this assertion. Therefore I have not had regard to this when formulating the appropriate sentence.
On 29 May 2015 police were alerted to the location of the BMW. When they attended the address they spoke to Mr Imbraim’s sister and another male, following which Mr Imbraim was located and arrested.
On 5 June 2015 you were intercepted by police at the Mickleham Primary School and following a search of your vehicle the victim’s stolen silver Bvlgari watch was located and you were arrested. You were interviewed on 23 June 2015 but made a “no comment” record of interview.
Co-accused
Mr Pieri, your co-accused, pleaded guilty to one charge of assault in company and was sentenced in the Magistrates’ Court to 14 days’ imprisonment to be followed by a 12 month Community Correction Order with 100 hours' unpaid community work.
Mr Imbraim failed to attend for committal hearing and a warrant was issued and executed on 12 March 2016 and he was remanded in custody.
On 21 April 2016 the committal was adjourned because of the victim not attending court. The matter was then the subject of a contested committal on
28 July 2016, at which time the matter resolved without the necessity of cross- examining the victim.
Mr Imbraim pleaded guilty to the same charges that are on the indictment that you are currently to be sentenced for, and he was sentenced to three and a half years’ imprisonment with a non-parole period of two years by this Court on 4 November 2016.
As was stated in the sentence of Mr Imbraim, I consider that this is a serious example of both robbery and false imprisonment charges. The robbery executed in the manner described in the opening in company with others would have been a terrifying experience for the victim. He was asked to, but declined to make a Victim Impact Statement. The use of violence in the course of false imprisonment was an aggravating feature of your offending.
In formulating just punishment there is a need to emphasise general deterrence, specific deterrence and on behalf of the community I must denounce your behaviour.
Mr Imbraim, the co-accused, had a very extensive prior criminal history. It spanned a period from 16 September 2003 to 28 August 2012. He had convictions for dishonesty and other offences, some related to possession of drugs and others relating to driving offences. He had a robbery conviction recorded on 17 May 2005, for which he received a four month term of imprisonment. He had been in and out of jail over the past ten years. There was a clear link between his heavy polysubstance abuse over the years and his criminality. That too is, unfortunately, the case with your situation.
In all respects, I consider that your offending and role in the offending was equal to that of Mr Imbraim and I propose to impose the same sentence.
On your behalf, I have taken into account mitigating features highlighted by Ms Kaddeche, which I accept. You entered a plea of guilty at the committal and
therefore spared the complainant being cross-examined both at committal and trial. There is real utility in your plea. You have also saved the State the cost and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly. I accept the plea is indicative of some remorse and acceptance of wrongdoing of your behaviour on your behalf.
I have had regard to your personal history and background, as set out in full in the report from Ms Carla Lechner, psychologist, that was tendered at the plea hearing.
You are the youngest of three sons born to your parents who are of Turkish origin. Your family migrated from Turkey in 1984 and you were born in 1987 in Australia. You had an unremarkable childhood.
Notwithstanding many years of heavy drug use and serious criminal offending, your parents remain supportive and devoted.
You returned with your family to Turkey during a two year period between 1993 and 1995 when you were aged about seven. When you returned to Australia you completed Year 11 and started, but did not complete, a pre-apprenticeship course at TAFE and you have only had spasmodic employment.
You commenced heavy drug use in your early teenage years, starting using cannabis at age 14, progressing to ecstasy and methamphetamines at around 18 years of age. By your twenties you were using methamphetamines heavily every day. Your extensive offending is inextricably linked to your drug use.
Ms Lechner, in her report, confirmed you do have insight into your mental health, offending and drug use and she describes your current risk of violent behaviour as high to moderate and says that your situation would improve with abstinence from drugs. She states that you suffer moderate levels of depression and anxiety. As was stated by Justice Lasry in his sentencing remarks, your prospects of rehabilitation, given your past, are poor.
37You are, however, still relatively young and that is a factor in your favour. I noted that in 2012 you completed a 30 day voluntary program run by the Hader Clinic in respect to abstinence from drugs and you have also had some assistance with Recover Oz. Notwithstanding those attempts at drug rehabilitation your heavy drug use was still a prominent feature at around the time of this offending.
38Whilst I consider your prospects of rehabilitation are poor, they are not extinguished and would be further enhanced by you committing to remaining totally abstinent from drugs.
39In formulating the appropriate sentence, I have had regard to the principles of totality and proportionality. In all the circumstances a term of imprisonment is the only sentencing option available.
40In sentencing you I must impose just punishment. I will now proceed to impose the formal sentence. I just ask that you stand.
41Mr Atesok, on the one charge of robbery you will be convicted and sentenced to 18 months’ imprisonment. On the charge of false imprisonment you will be convicted and sentenced to three years' imprisonment.
42I direct that six months of the sentence on Charge 1 be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of three years and six months' imprisonment.
43I direct that two years of that sentence be cumulative upon the sentence that you are already serving. Therefore your new total effective sentence is 14 years’ imprisonment and I direct that you serve a new single non-parole period of 10 years before being eligible for release on parole to commence on 28 September 2017.1
28 September 2017 is the date of Lasry J’s sentence.
Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served a combined total of 676 days' pre-sentence detention and I direct that that be entered into the records of the court.
I make the following s.6AAA Sentencing Act declaration, but for your plea of guilty I would have sentenced you to a period of five years’ imprisonment to serve three years' imprisonment.
I think that covers everything because there were no ancillary orders sought.
MR VELLA: No, Your Honour.
HER HONOUR: No. All right, good. All right, so that completes that matter.
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