Director of Public Prosecutions v Aydemir

[2017] VCC 1672

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02134

DIRECTOR OF PUBLIC PROSECUTIONS

v

IBRAHIM AYDEMIR

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2017
CASE MAY BE CITED AS:	DPP v Aydemir
MEDIUM NEUTRAL CITATION:	[2017] VCC 1672

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown
For the Accused	Ms N.D. Kaddeche

HIS HONOUR:

1Ibrahim Aydemir, you have pleaded guilty to one charge of causing serious injury recklessly, one charge of possession of a drug of dependence, two summary charges, one of contravening an order that you not attend within 200 metres of 23 Echuca Street, Dallas and one of committing an indictable offence whilst on bail.

2You also pleaded guilty to breaching a community correction order that I have you on 4 April 2016, in which you were sentenced on a number of offences to a term of imprisonment of six months and then released on a community correction order of 12 months, which was to commence on 4/07/2016.

3I have re-read the facts of the original offending and that was very disturbing offending, and it was necessary that you comply with the corrections order that I made.  Each report has been tendered and in that, it would seem that you have difficulties with your drug usage.  You had some positive swabs to Benzodiazepines on two occasions and the psychologist who was attending to you had the view that often when you did attend, you were under the influence of drugs.

4In addition, it is now clear that your offending as set out in the indictment was during the period of the community correction order, and that is an extremely serious breach to commit further offences whilst still on a community correction order.

5The facts of the indictment matters are set out in the prosecution opening, Exhibit 1.  I will not recount them in any detail.  They are not disputed by your client.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

6But briefly stated, it involved an argument between you and your father.  Tensions had been building up and on 3 June, your father grabbed you, told you to wake up and told you to get mental health care, go to gaol or join the Turkish Army.  An argument ensued in which you were blaming your father for the cause of your partner's death.  She had overdosed some time before then.  There is a five year old child of that relationship.

7Your father grabbed you and pushed you up against the lounge wall.  Other people were trying to pull him off.  You hit him in the left side of the neck with a glass coke bottle, causing 2 to 3 centimetre lacerations.  You were very fortunate that more severe injuries did not result.  Any criminal practitioner who has been around for any length of time knows that in glassing cases, there can often be very serious injuries, including death.  Fortunately for you, the injuries here, although they are serious, they are not as serious as some.

8Your criminal history is admitted, which in the main, concerns the matters that I originally dealt with you and some driving and dishonesty matters.

9In connection with the breach matter, of course I had the power to resentence you on the original matters.  My concern as expressed during the course of the hearing is that you were not charged with the breach a lot earlier than you were and you have already done six months.  I have decided that in relation to the original matters to make no further order, to find the breach proved. But in relation to the actual breach count, I will impose a term of imprisonment which I will announce shortly.

10But I do not impose further orders in relation to the original offending for two reasons.  (1) For the one just stated and (2), when I look at the issue of totality.

11The prosecution's position is that I should impose an immediate term of imprisonment and that a combination sentence is not available. 

12Your counsel filed written submission and made oral submissions and tendered a report from a psychiatrist, Dr Leon Turnbull and some references or reports of course, as you have been attending whilst in custody.  You have been in custody for 162 days so far.

13It is a very brief report from Dr Turnbull and I am told by your counsel it was prepared to assess whether you had some condition that would stop you pleading or that there was some mental condition that could provide you with a defence.  But in any event, the doctor's opinion was, you were free of any psychiatric condition and did not have a diagnosable psychiatric disorder.  However, your counsel tells me in an earlier report from Warren Simmons, which is not tendered but is on the brief, that you had had several attempts of overdoses and had had admissions to hospital.

14Your counsel relies on the fact that you have entered an early plea of guilty and I accept that.  It is an expression of responsibility by you for your offending and has saved the court the time and expense of a jury trial, and you will be given the appropriate discount.

15She explained to me the strained and difficult relationship you had with your father who is in court, and he has heard your counsel say that he is here to support you and I accept that.

16Your child is in the care of your mother, who is separated from your father.

17One of your problems is your substance abuse problem and clearly, you are going to have to do something about that.

18Your counsel put you had a limited prior criminal history.  But I have already dealt with that when I have referred to the original breach matters.  She asked me to consider the principle of totality and I have done that.  She submitted that you have good prospects of rehabilitation and submitted I could look at a combined sentence of a CCO and prison or following that, a shorter than normal non-parole period so you could have the opportunity to rehabilitate yourself whilst in custody.

19The death of your partner, it was put, had a great effect on you.  Perhaps you should learn from that that drugs are very serious things.  You do not need me to tell you really, the serious consequences for people.

20It would seem to me also, you have a problem with anger management.  Although I understand the circumstances of this offending, it was a gross over reaction by you to use the glass bottle in the way that you did.

21Because the offending occurred during the time of the CCO I gave you, in my view, it is not open to me to give you another CCO.  This is serious offending.  You have demonstrated that you could not comply with the previous order, not only by not showing much concern about your drug problems, but reoffending in a way that you have done here.

22In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct, the interests of the community to seek to ensure as far as possible, offenders are rehabilitated into society.  I express my denunciation of your behaviour.

23The basic purposes for which a court may impose a sentence are punishment, general deterrence and specific deterrence, and that still has a role to play here because of the fact that you breached the CCO and you had a breach of your bail as well.  General rehabilitation, denunciation and protection of the community.

24In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim.  So I have indicated, there is no victim impact statement and in fact, your father is in court to support you.

25Weighing up all those matters and taking them all into account, I sentence you as follow:

26Charge of causing serious injury recklessly, I sentence you to a term of imprisonment of 18 months.

27On the charge of possession of a drug of dependence, I fine you a sum of $100.

28In relation to the first of the summary offences of not attending within 200 metres of 23 Echuca Street, I impose a sentence of two weeks, 24 days - 12 days.

29And similarly with the bail offence, 12 days.  Is that right?  14 days I mean.  Arithmetic.  Fourteen days on each.

30And in relation to the breach, I impose sentence of six weeks.

31I make no order as to cumulation in respect of the summary offences.  In relation to the breach, I direct that three weeks be served cumulatively with the causing serious injury charge and with all other charges.

32So that makes a total sentence of 18 months and three weeks.

33I direct that you serve a period of 11 months before you are eligible for parole.

34I declare the term of imprisonment you have already served, 162 days be reckoned to be part of the term of imprisonment I have just imposed.

35I directed under s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by the court, you would have received a sentence at least in the order for five years with a non-parole period of three.

36I make a 464 order.  If that could be handed up, I will sign it.

37MS BROWN:  Your Honour, I believe the order was done.

38HIS HONOUR:  Already got it, have I?  Thank you.  Make an order for a taking of a forensic sample.  Having considered the seriousness of the offending, I am satisfied the order was justified.  Because of the seriousness of the circumstances of the offending, like the order (indistinct words) by consent or not opposed.  There we go.  Are there any other matters I need to attend to?

39MS BROWN:  No, Your Honour.

40HIS HONOUR:  Ms Kaddeche?

41MS KADDECHE:  No, Your Honour.

42HIS HONOUR:  All right.  Can you take Mr Aydemir out?  Thank you.

43OFFENDER:  Thank you, Your Honour.

44HIS HONOUR:  Adjourn the court until 2 o'clock.  Thank you.

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