Director of Public Prosecutions v Bagdas

[2019] VCC 1951

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01186

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIYAR BAGDAS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2019
DATE OF SENTENCE:	22 November 2019
CASE MAY BE CITED AS:	DPP v Bagdas
MEDIUM NEUTRAL CITATION:	[2019] VCC 1951

REASONS FOR SENTENCE
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Subject:

Catchwords:  Aggravated recklessly cause risk to emergency worker by driving; Conduct endangering persons; Extremely dangerous driving; Drug-affected; Evading police; Young offender; General deterrence; Protection of the community

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Champion	Office of Public Prosecutions
For the Accused	Mr J. Mortley	Haines and Polites

HIS HONOUR:

1Siyar Bagdas, you have pleaded guilty to the following charges –  

2The aggravated offence of recklessly causing an emergency worker to risk by driving, contrary to s.317AF(1)(b) of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

3Two charges of recklessly exposing an emergency worker to risk by driving, contrary to s.317AE(1) of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

4Conduct endangering persons, contrary to s.23 of the Crimes Act 1958. The maximum penalty for that offence is two years imprisonment.

5Two charges of assaulting an emergency worker on duty, contrary to s.31(1)(b) of the Crimes Act 1958. The maximum penalty for that offence is five years imprisonment.

6You have also pleaded guilty to the following related summary offences –   

7One charge of failing to answer bail, contrary to s.30(1) of the Bail Act 1977. The maximum penalty for that offence is two years imprisonment.

8Two charges of failing to provide your name and address, contrary to s.61(1)(c) and (d) of the Road Safety Act 1986. The maximum penalty for a first offence for that offence is five penalty units, a final five penalty units or 14 days imprisonment, and for a subsequent offence, a maximum fine of 10 penalty units or imprisonment for a term of not less than 14 days, and not more than one month.

9One charge of unlicensed driving, contrary to s.18(1)(a) of the Road Safety Act 1986. The maximum penalty for that offence is a fine of 60 penalty units, or imprisonment for not more than six months.

10One charge of failing to stop a vehicle after an accident where a person was injured, contrary to s.61(1)(a) of the Road Safety Act 1986. The maximum penalty for that offence, for a first offence, is a fine of 80 penalty units or imprisonment for a maximum term of eight months, or in a subsequent offence, a penalty fine of not more than 240 units or imprisonment for a term of not less than four months and not more than two years.

11One charge of entering an intersection through a red traffic light, contrary to rule 59(1) of the Road Safety Rules 2017.  The maximum penalty for that offence is a fine of 10 penalty units.

12One charge of failing an oral fluid test, contrary to s.49 of the Road Safety Act 1986. The maximum penalty for that offence is a fine of not more than
12 penalty units and in relation to a second offence, a fine of not more than
60 penalty units.

13Finally, one charge of dealing with property being suspected of the proceeds of crime, contrary to s.195 of the Crimes Act 1958. The maximum penalty for that offence is two years imprisonment.

14You pleaded guilty following the conduct of a limited committal proceeding, and it is accepted by the prosecution that your plea is properly described as an early plea of guilty.  I have taken your plea into account in your favour in mitigation of sentence.

15You have admitted a criminal history for a range of offences, including an appearance at the Broadmeadows Magistrates' Court on 20 January 2017, for reckless conduct endangering life, resisting an emergency worker on duty, possession of an unregistered handgun, theft of a motor vehicle, using methylamphetamine, burglary, and theft, for which you were placed on a Community Correction Order for a period of 12 months, after having served six months in Youth Detention.

16This offending concerned you being pursued by police while you were driving a motor vehicle, in what was described by your counsel as a police pursuit.  You breached that Community Correction Order, and on 9 October 2018, were sentenced to one month imprisonment.

17Having regard to the nature of this previous offending, specific deterrence is clearly an important sentencing consideration in your case. 

18A prosecution opening was read to the court and tendered in evidence and was accepted as accurate by your counsel.  Your offending may be summarised as follows –

19On 9 January 2019, you failed to appear on bail at Heidelberg Magistrates' Court, in relation to a charge of theft of a motor vehicle, and other serious driving charges.  These charges are due to be heard as a plea of guilty at the Heidelberg Magistrates' Court on 28 January 2020.

20On 15 January 2019, you were involved in a motor vehicle collision in Broadmeadows and failed to provide your name and address to the driver of the other vehicle.

21Turning to the serious charges that you have pleaded guilty to, on 23 January 2019, at 3.25 pm, you were driving the same vehicle in the Melbourne CBD and were under the influence of methylamphetamine.  You were also unlicensed.  You were observed by police to drive through a red traffic light from Flinders Street, left into Russell Street.  After being intercepted by police, and told to stop, and briefly stopping, you then restarted your vehicle, and reversed it in the direction of the officers who had intercepted you.

22You then drove forward, over one of the officer's motorcycles and also struck the officer's left ankle and leg.  The police officers attempted to prevent you from driving away by using their batons to break the driver's side window of your vehicle, but you accelerated away, north along Russell Street, colliding with another police officer as you did.  You drove away on the incorrect side of the road, and through the intersection of Russell Street and Collins Street.

23Numerous members of the police force and members of the public were exposed to the risk of injury by your extremely dangerous driving.  An excerpt of CCTV footage was played to the court depicting your reckless criminal behaviour.

24A stationary marked police vehicle was parked at the intersection of Russell Street and La Trobe Street, and you were there apprehended by police.  You failed an oral fluid test, returning a positive test for methylamphetamine, and you were also in possession of a stolen fleet card and a bank card.

25Senior Constable Cunningham, the officer you first struck, was treated at the Royal Melbourne Hospital for ankle, knee, and shoulder soreness, and required three days off work and 10 weeks of no strenuous physical activity.  First Constable Whittle sustained bruising to her left leg and was treated at the Epworth Hospital for her injuries.

26I have received in evidence a Victim Impact Statement of First Constable Whittle, detailing the traumatic effect your offending has had upon her, and upon her friends and family, and I accept that your offending has caused her great distress and anxiety.

27It is clear that your offending are serious examples of the crimes that you have pleaded guilty to.  You drove your vehicle in an erratic and dangerous manner, whilst drug-affected and in an effort to evade apprehension by the police.  The consequences of this may have been catastrophic and our community is all too aware of the serious consequences that can result from the driving of a vehicle in this manner on the busy streets of the Melbourne CBD.

28This sentence must be calculated to deter others from offending in this manner, and the public must be protected from serious crimes of this nature.  You must also be punished for your blatant disregard for the safety of members of the police force, performing their lawful duties, and members of the public, who were going about their daily lives.

29I now turn to your personal circumstances. 

30You were born on 25 January 1998 in Turkey, and you are now aged 21.  You were 20 at the time of your offending and were therefore then a young offender.  However, you are now a youthful offender having turned 21, and I accept that your youth is a significant sentencing consideration in this case.

31Accordingly, the sentence that I impose must give appropriate weight to your future rehabilitation.  Furthermore, your youth bears upon my assessment of your moral culpability for your offending and the role of general deterrence in arriving at an appropriate proportionate sentence in your case. 

32The prosecution do not dispute that these principles are engaged in your case, however, I accept that the application of these principles is also to be considered in the context of the serious nature of your offending, and the need to protect the community from you.

33You completed Year 8 at Secondary school and were expelled in Year 9 from Roxborough Park College, due to alcohol use.  Your counsel informed me that your alcohol and drug abuse began in your early teens and this has progressed to methylamphetamine addiction.  It is clear that you require ongoing treatment for your addiction and your prospects of rehabilitation are dependent upon you being successfully treated for this.

34You have the support of your law-abiding and hardworking family, and you have undertaken a number of courses whilst in adult prison on remand.  It appears that your work history is limited to assisting your father who works as a plumber, and your brother-in-law, who is a mechanic.  You have no formal skills or qualifications.

35I was not taken to any evidence of remorse for your offending, although I accept that by your plea of guilty, you have demonstrated it to a limited degree.

36By operation of s.16(1A) (i) and (j) of the Sentencing Act 1991 (‘the Act’), the presumption of concurrency contained in s.16(1) of the Act does not apply to Charges 1, 2, and 3 on the Indictment.

37Furthermore, by operation of s.16(3D) of the Act every term of imprisonment imposed for an offence against s.317AE and s.317AF of the Crimes Act 1958, as Charges 1, 2, and 3 are, must unless otherwise directed by the court, be served cumulatively on any uncompleted sentence, or sentences of imprisonment imposed on the offender whether before or at the same time as that term.

38These provisions do not, however, remove the application of the principle of totality in sentencing, or the role that youth must play in arriving at an appropriate proportionate sentence in your case. 

39It was not in dispute that a term of imprisonment to be served immediately is the only appropriate sentencing disposition in this case.  Indeed, Charge 1 on the Indictment is a Category 2 offence, requiring subject to exceptions not relied on in this case, the imposition of a custodial sentence.

40In my opinion, it is also appropriate for me to fix a non-parole period in this case that will support your future rehabilitation and, in that context, it is important for me to have regard to the fact that you are a 21-year-old offender, undergoing imprisonment in an adult prison.

41In the result, the sentence of the court is as follows –

42In relation to Charge 1 on the Indictment, you are convicted and sentenced to be imprisoned for 18 months;

43In relation to Charge 2 on the Indictment, you are convicted and sentenced to be imprisoned for nine months;

44In relation to Charge 3 on the Indictment, you are convicted and sentenced to be imprisoned for 12 months;

45In relation to Charge 4 on the Indictment, you are convicted and sentenced to be imprisoned for six months;

46In relation to Charge 5 on the Indictment, you are convicted and sentenced to be imprisoned for nine months;

47In relation to Charge 6 on the Indictment, you are convicted and sentenced to be imprisoned for nine months;

48Charge 1 is the base sentence.  I direct that the entirety of the sentence on Charge 2 and the entirety of the sentence on Charge 3, and six months of the sentence on Charge 6 be served cumulatively on each other, and cumulatively on the sentence imposed on Charge 1.

49This makes for a total effective term of imprisonment for three years and nine months.  I direct that you serve one year and nine months before becoming eligible for release on parole. 

50I declare that you served 303 days, not including today, by way pre-sentence detention.  

51But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of four years and six months and fixed a
non-parole period of three years.

52In relation to the related summary offences that you have pleaded guilty to, you are convicted and fined the aggregate sum of $1200. 

53All licenses held by you are cancelled and you are disqualified from obtaining a driver's license in Victoria for a period of five years from today.

54I have made the ancillary orders sought by the prosecution.

55MR MORTLEY:  As Your Honour pleases.

56HIS HONOUR:  Are there any further orders required, Ms Champion?

57MS CHAMPION:  Your Honour has the ability under s.89C of the
Sentencing Act to make a finding about whether the offending was committed under the influence of drugs or alcohol.

58HIS HONOUR:  Yes, well I did make that finding.  I simply did not record that it was made pursuant to that section.

59MS CHAMPION:  Yes, Your Honour.

60HIS HONOUR:  Thank you.  Any further orders, Mr Mortley?

61MR MORTLEY:  No, Your Honour.  Has Your Honour made the compensation order?

62HIS HONOUR:  Yes.

63MR MORTLEY:  Yes, just for completeness sake, I was provided a quotation and I do not take issue with that.

64HIS HONOUR:  Yes, I have received that as well.

65MR MORTLEY:  Certainly, Your Honour.

66HIS HONOUR:  Thank you.

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