Director of Public Prosecutions v Ayyildiz

[2020] VCC 201

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00558

DIRECTOR OF PUBLIC PROSECUTIONS

V

EGEMEN AYYILDIZ

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2020
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	DPP v Ayyildiz
MEDIUM NEUTRAL CITATION:	[2020] VCC 201

REASONS FOR SENTENCE
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Subject:  Criminal law - sentence
Catchwords: Pleaded guilty to one charge intentionally  causing injury – offender was uber driver – victim  passenger -  vicious attack – CCTV footage -   victim suffered facial injuries -  now suffers from anxiety and depression -  offender  41 year old -  no previous police involvement -  dire financial  situation -  Family Court proceedings  - no drug , alcohol or mental health issues – rehabilitation guarded – anger management issues.
Sentence: 18 months imprisonment, non parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	OPP
For the Accused	Ms S. Wallace	Theo Magazis & Associates

HER HONOUR:

1Egemen Ayyildiz, you have pleaded guilty to one charge of intentionally causing injury.  This occurred in the early hours of 9 July 2017 in Richmond when you were working as an Uber driver driving a car you owned.  The victim, Rajiva Obeyesekere was then a 25-year-old man who had been at a hotel with friends the previous evening.  Soon after midnight he arranged for an Uber to pick him up and take him home.  You were that driver and you picked him up.  He got into the passenger seat and asked if you would stop at McDonalds so he could get some takeaway food.  You told him, 'No food in my car'.  He explained that he would keep the food in its bag until he got home but you again refused and said you were cancelling the Uber ride.

2The victim said he was going to give you a 'Shit' rating and got out of the car.  During the plea hearing, Ms Wallace, who appeared on your behalf, said your instructions that day were that when the victim threatened to give you a poor rating he also uttered racial slurs towards you.  There is no evidence of this but I cannot discount it as a possibility.  However, I place little weight upon it.

3In any event, when the victim got out of the car, you did also, and went around to the passenger side of the car where the victim was standing. You grabbed him by the shoulder and kicked his leg.  You punched him repeatedly to the face and body, causing him to fall onto the pavement.  He tried to get up and you kicked him in the head, your boot hitting him in the right eye.  Security guards from the hotel intervened to separate you and you got back into your car and left.  The attack was captured on CCTV and this was played in court.  The viciousness of the attack as seen on the footage is quite apparent.  The victim was admitted to hospital with bruising, swelling, lacerations to his right cheek and eye, mild concussion and a ripped bottom eyelid.  He had a blood alcohol reading of 0.108 per cent.

4The following day a plastic surgeon performed a skin graft on the ripped eyelid, taking skin from his ear.  He is left with scarring around his eye and ear and has difficulties raising his right eyebrow.  He suffers from anxiety and depression as a result of the attack and he needs counselling.  He feels embarrassed and ashamed of the scars and he has withdrawn socially.  He provided a long and detailed victim impact statement which was read to the court.  Apart from the pain he suffered, his injuries caused considerable social and personal disruption for him.

5His girlfriend had only just departed on a long-awaited overseas trip but returned home.  His mother took time off work to care for him for several weeks and so she experienced a loss of income.  His family had to combine funds to make ends meet.  He became reserved and isolated, coping with his changed appearance.  Photographs show the scarring around his eye and at the back of his ear and he is very conscious of both, particularly as he works in an industry in which value is placed on appearance.  Although he returned to work, he was not promoted as had been promised and missed out on an expected salary increase.

6After some time he commenced psychotherapy but he considers this served to clarify the extent of the damage done to him by the attack.  He suffers nightmares and traumatic recollections of the attack.  This has affected his sleep and he has unreasonable fears about ordinary things, as well as feelings of panic if he is obliged, reluctantly, to use a taxi or Uber.  He considers his career, his family connections and his relationship with his girlfriend have all been damaged by the attack and injuries.  His financial losses and that of his family have been considerable.  You have accepted that the offence you committed is a serious example of the crime of intentionally causing injury.  You attacked the victim when you could have driven away as soon as he got out of the car, instead you were enraged by his behaviour and what he said to you and reacted completely inappropriately.

7The forensic physician, Dr Schreiber stated in his report that moderate to significant force would be required to produce the injuries suffered by the victim and that is indeed apparent, as I said, from the CCTV footage viewed in court.  Members of the public are entitled to expect that a driver offering services to the public will behave properly given that such drivers are in a position of trust.  On this occasion, neither you nor your passenger were happy with each other's behaviour and although you had ended the contract with him and he exited the car, you did not accept this situation because of his threat of a bad rating.

8In a letter you have written to the victim and provided to the Office of Public Prosecutions, you stated how sincerely sorry you are and that you have never behaved in this way before and had not intended to.  Indeed much of the plea material is put on the basis of providing the context in which you behaved as you did.  Although the victim made a statement to the police very soon after the incident, it took the police until February 2018 to locate you.  In July 2018, you pleaded guilty to a charge of recklessly causing injury but in October the prosecution received the victim's victim impact statement which clarified the impact of the injuries.

9Rather unusually, it was then decided to charge you with intentionally and recklessly causing serious injury.  At the committal hearing, at which no witnesses were required to give evidence, you pleaded guilty to intentionally causing injury.  A plea hearing was listed for 1 August 2019 but was adjourned until November 2019 and then until the hearing date this week to allow you further time to obtain funds for legal representation.  These circumstances are relevant not only to the context of the plea you finally entered but also to your original plea at a very early stage and to the delay which has occurred and I shall return to those matters later.

10Turning now to your personal circumstances and background, you are a
41-year-old man who until this particular offending, was a man of good reputation with no previous police involvement and a background of hard work.  You were born in Turkey where you graduated from university with a degree in information technology and tourism and management and then worked in businesses.  You came to Australia in 2008 and studied commercial cooking at TAFE, following which you worked at Crown as a chef and at a café.  You married in 2010 and a son was born in 2017.  Your wife already had a small child from a previous relationship.  You bought a restaurant at considerable expense and after two years, you suffered a back injury and had to sell the business at a significant loss.  As a result, your house had to be sold and your wife began working to bring in an income.

11You began working as an Uber driver and for several years as a security guard.  There were no complaints about your behaviour emanating from your time doing that work.  You were able to continue working for Uber until October last year when you entered your plea and after that you began a new business operating a kebab caravan.  Following the sale of your home and another property to meet debts, you and your wife moved into rented premises but the marriage did not survive and you now live with your parents who arrived from Turkey to support you.  Family court proceedings are on foot and you have not seen the children for over six months.

12There are several factors which call for mitigation in sentencing you.  Your early plea of guilty means you are entitled to a discount on your sentence, as it has avoided a trial and none of the witnesses have had to give evidence.  It is also an indication of your remorse which you have expressed in your letter to the victim.  Delay is a significant factor, as the initial delay between July 2017 and October 2019, when your plea was due to be heard, was not due to any fault of yours.  Overall, you have had this matter hanging over your head for nearly three years and as your counsel, Ms Wallace, submitted, that has constituted a degree of punishment in itself.

13At the time of the offending you had experienced a very stressful time, having taken up Uber driving as a response to dire financial circumstances.  After the offending, you engaged in a men's behaviour change program for 12 sessions and you were able to continue with your work.  You declared bankruptcy and so friends assisted you in setting up a new business after you ceased driving for Uber. 

14At the plea hearing, I was not told of any further offending but it emerged from the assessment conducted by Corrections that same day that you are subject to a Community Correction Order in relation to family violence, due to expire in July 2020.

15You told the officer correctly that you had no prior convictions but you made no reference to any prior involvement with Corrections.  By “prior” there I mean current involvement with Corrections.  In fact it has come to light that you were charged with unlawful assault arising from physical violence towards your wife on 4 April 2019.  I am told that you pulled out a chunk of her hair and that this was in the presence of her daughter, then aged four.  Your wife obtained an intervention order against you and you breached that on 29 April by going to her home.  You were charged with that offence as well, and when dealt with in the Magistrates' Court, you were placed on a Community Correction Order. 

16The existence of that order came to the attention of the Corrections officer performing the assessment which is outlined in her report.  You have had no contact with Corrections since last October according to that report, despite the efforts of your case manager to contact you.  Accordingly, the report informs me that the service has little confidence in the likelihood that you will comply with the conditions of a new Community Correction Order and you have been assessed as unsuitable, although you were assessed as a low risk of offending.   Your engagement with the men's behaviour change program is explained by this background which hitherto seemed somewhat at odds with violence not linked to family violence but was perhaps explicable by reference to the current Family Court proceedings.

17You have no drug or alcohol problems, nor any mental health difficulties and the only indication of any likelihood of recidivism is the family violence that has now come to light.  It is an indication that you have lost your temper on another occasion as well.  The prosecution's submission was that your prospects of rehabilitation can only said to be guarded, owing to the possibility of further stressors which might provoke anger.  Despite the steps you have taken and the remorse and insight you have demonstrated, I agree that your prospects are not better than guarded. 

18The Corrections assessment was that you are not suitable for a CCO because of your unsatisfactory progress in the recent past.  Your counsel has assured me today that you intend to complete the order if free to do so.  In any event, despite the mitigating circumstances, I have concluded that the seriousness of the offending, the severe impact on the victim and the need for general deterrence require a prison term of greater length then would be possible if combined with a Community Correction Order. 

19Would you stand now please, Mr Ayyildiz.

20You are sentenced to 18 months' imprisonment.  I order that you serve 12 months before being eligible for parole.

21If you had pleaded not guilty, I would have sentenced you to two years' imprisonment with a non-parole period of 18 months. 

22The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained and through your counsel you have consented to that.  I make that order and advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary. 

23Ms Zammit, is there anything I have neglected or omitted?

24MS ZAMMIT:  No, Your Honour.

25HER HONOUR:  Ms Wallace?

26MS WALLACE:  Just one thing, Your Honour, in relation to the CCO report, if Your Honour could note for the record that he was assessed as a low risk of reoffending.

27HER HONOUR:  Yes, that will be evident from the report, thank you.

28MS WALLACE:  Thank you, Your Honour.

29HER HONOUR:  You make take Mr Ayyildiz now, thank you officers.  Adjourn the court please, Mr Percy.

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