Director of Public Prosecutions v Barut

[2024] VCC 180

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00063

DIRECTOR OF PUBLIC PROSECUTIONS

v

MEHMET BARUT

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 February 2024
CASE MAY BE CITED AS:	DPP v Barut
MEDIUM NEUTRAL CITATION:	[2024] VCC 180

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Attempted aggravated burglary – early plea

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers (2014) 44 VR 486

Sentence:                  Term of imprisonment of 96 days served by way of pre-sentence detention – Community Correction Order for a period of 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Offender	Mr A. Kennedy	Marshall Jovanovska Ralph Criminal Lawyers

HER HONOUR:

1Mehmet Barut, you have pleaded guilty on Indictment No N11969945 to one charge of attempted aggravated burglary, one charge of intentionally cause injury and one charge of possess drug of dependence.

2In addition, you have provided your consent for this court to deal with a summary related offence and you have pleaded guilty to one charge of committing an indictable offence whilst on bail.

3You have admitted your prior criminal history.

Circumstances of offending

4At the time of your offending you were 42 years of age and you had been bailed on 5 June 2022 to appear at Broadmeadows court on 9 November 2022.

5At approximately 6:40 pm on 9 September 2022 you attended an address in Broadmeadows yelling and threatening unknown persons on the street.

6Witnesses Nathan Twomey, Diane Wilson and William Ahern were in the front of the address when you approached the front door with knuckle dusters and a knife.

7At the time you were wearing black track pants, black gloves, blue shoes, black socks, a black jacket and carrying a black Nike bag with draw strings.

8You attempted to get inside the property at this time - Suzzanne Suckling was inside. Mr Ahern chased you away and then returned to the property.

9You attempted to get into the property by kicking the front door damaging the security door and the front door. You then ripped down one of the cameras and smashed the front window of the house. You then pushed a container containing unknown liquid through the broken window and stated you were going to light them up if they did not open the door. You then left the property.

10Mr Twomey was on the front porch inspecting the cameras when you returned to the property. You placed your Nike bag on the TV console in front of the main window, you placed the knuckle dusters on the console and rummaged through your bag. You yelled out asking to be let inside. You also yelled out, 'Your friend is gonna cop it if you don't let me in!'.  You then picked up the knuckle dusters in your right hand and punched Mr Twomey in the head approximately four times and you kicked him once.

11You then proceeded to damage the CCTV camera by the front door before leaving the property. You then returned to the property once more and smashed the rest of the cameras.

12The entirety of this offending is captured on CCTV which I have viewed.

13Police approached the intersection of Widford Street and Gerbert Street, Broadmeadows, when you approached their car. You were transported to hospital by police for injuries and later you were placed under arrest and subsequently remanded for the above offending.

14Police recovered your Nike bag in a nearby alleyway, which contained two press-seal bags, one containing methylamphetamine.

Nature and gravity of offending

15Attempted aggravated burglary is an inherently serious offence and that is clear from the maximum penalty of 20 years. In determining the seriousness of your offending, I have had regard to the case of DPP v Meyers,[1] In that case the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors with the necessary adjustments to take into account the fact that you are to be sentenced for an attempt only.

[1] (2014) 44 VR 486.

16Your offending took place at 6.40 pm, you were alone and armed with a knuckleduster (which was actually a handle from a saw) and a knife. You attempted to gain entry into the victim’s premises to settle a debt. After this was unsuccessful you confronted the victim Mr Twomey and assaulted him by punching him four times to the head whilst wearing the knuckledusters and then you kicked him. Fortunately, your victim did not sustain any real injury apart from a scratch on his arm.

17Your offending was reactive and clearly lacked any real planning. You were angry and upset because you had been 'ripped off' over a drug transaction by one of the residents at the house.

18Whilst at the premises you destroyed CCTV cameras that were in place, presumably in part to prevent your detection.

19Unusually, it was you who had sustained the more significant injuries by the end of the night. At the time you were arrested by police it was clear you had been the victim of an assault and required hospital treatment. In the medical records tendered on your plea it details you had been the victim of several strikes with a metal pole to the face and back. These records indicate that you suffered a broken nose and lacerations. Mr Ahern, a friend of the occupants of the address, has been charged in relation to this incident.

20I do accept that given your aggressive presentation, as depicted on CCTV footage, Mr Twomey would have been quite frightened at the time.

Personal Circumstances

21You are now 44 years old, you were born in Australia to Turkish migrant parents. Initially your family settled in Richmond and later moved to Broadmeadows. You are the youngest in a sibship of three. You have an older brother and sister. Your early family life was dysfunctional and was marred by your father's illness and constant arguing between your parents. Your father suffered a stroke and became paralysed in the context of suffering a smoking-related illness.

22Both of your parents are since deceased, your father in 1996 and your mother passed away recently on 7 December 2023.

23When you were aged eight years old you would leave school early to come home to feed, toilet and bath your father. You began to self-harm and continued to do this for several years. Otherwise, you did not suffer any childhood injuries or illnesses.

24You attended Preston high school to Year 9 level and generally you were a 'good' student. You felt compelled to leave school at a young age to find work to help support the family. You left the family home at age 16 to find better employment options. You commenced an apprenticeship in the automotive industry and completed onsite training and TAFE schooling. You left this employment as the hours were onerous.

25Around this time your mother and father separated. Your father returned to Turkey and you joined him so that you could continue to care for him there. Whilst in Turkey you were required to do national service and then obtained employment in the tourist industry where you were worked in a hotel, eventually being promoted to a management role.

26You met your wife in Turkey, you were 17 and she was slightly younger. You returned to Australia in 2003 with your wife and you went on to have a son and daughter. Your son is now 24 years and works while your daughter is 17 and currently attends high school. You enjoy a good relationship with your children.

27The move to Australia proved difficult for your wife as she had limited English. You were able to get employment for a very successful cleaning company and worked long hours. It was the combination of these factors that led to the breakdown of your marriage after around nine years.

28In the past you have consumed alcohol and illicit drugs. You have been abstinent from alcohol since the age of 34. You have habitually used cannabis and methylamphetamine. Your use of methylamphetamine began in your late 20s in the context of the breakdown of your relationship with your wife. Your prior history coincides with this chronology of events.

29Over the years you have suffered issues with your mental health and have a well-established patient/doctor relationship with your general practitioner, Dr Munir. In his letter to the court he detailed that you have been a patient of his clinic for 20 plus years and have been suffering from anxiety and depression. Dr Munir is also aware of your past drug use which led to a possible psychosis in 2004. In his opinion your mental state is currently settled and you have been treated with anti-depressants and anxiolytic medications. He is aware that you are connected with North West Mental Health services for treatment and monitoring.

30North West Area Mental Health Service provided a letter which confirms that you have been a patient with that service on and off since 2009/2011. Your most recent care commenced on 23 October 2023. This service treats your anxiety and depressive symptoms with medication and you are also on buprenorphine which you have recently began to decrease. You are regular in your attendance at appointments and compliant with treatment.

31In the recent past you have been the victim of an aggravated burglary and on another occasion the victim of a house fire. Accommodation has been problematic in this context. Upon the recent passing of your mother you have been able to take over her ministry housing and now have stable accommodation.

32Currently you enjoy significant stability in most facets of your life. There are no further matters outstanding before the courts apart from the return of an adjourned undertaking that was imposed for the dated driving offences for which you were on bail at the time you offended.

33I take into account in a general way that you have suffered poor mental health in the past and that you are currently stable and engaged in treatment.

34Your counsel, Mr Kennedy, relied upon several mitigatory factors in your favour.

Plea of guilty

35First was your plea of guilty.  That was entered at committal mention stage. I consider this to be a plea at an early stage in court proceedings. Further, no witnesses were required to give evidence and the court system was spared the resources and expense of conducting such processes. In these circumstances your plea has significant utilitarian value and I find you have facilitated the course of justice.

36Though the court’s case backlog caused by the pandemic has now eased, at the time your matters resolved in 2022, it still had some residual impact. I consider the resolution of your matters at that time still provides some additional benefit towards facilitating justice during the backlog period.

37I therefore propose to allow a significant sentencing discount for your plea of guilty.

38In addition, I accept you have demonstrated some remorse. Your early plea of guilty provides evidence of remorse as do your comments to psychologist, Mr Ball. I accept that you are genuinely remorseful for your wrongdoing on this occasion.

39You were remanded on 10 September 2022 and remained in custody until a successful bail application on 15 December 2022. As a consequence you have served 96 days of pre-sentence detention. At the time of your remand the prison system was still impacted by Covid-19 pandemic, lockdowns and restrictions added to the burden of gaol, as a result I accept that your time in custody was more onerous than usual. Further to this you were incarcerated immediately after you were assaulted, being released from hospital directly to custody. I accept that the custodial experience would have been very difficult for you in these circumstances.

40In addition, Mr Kennedy on your behalf submitted that you have experienced very direct and severe consequences for your offending. The first example of this was by way of a significant assault that occurred shortly after and in consequence of your offending and the second is your incarceration.

41I accept that you have been on bail in relation to this matter for in excess of 12 months and you have been compliant with onerous conditions requiring you to report two times per week and abide by a curfew.

Sentencing principles

42I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence, just punishment and community protection.  In addition, your offending must be denounced by the court, and I do so.

43In the circumstances of your case it is my view that specific deterrence should be afforded limited weight. You have suffered very direct consequences of both an assault and difficult custodial confinement.

44It is my view that the community will be best protected if you can continue on your path of stability and consequent rehabilitation uninterrupted.  You have demonstrated over the last year or so that you are serious about making a sustained change and in light of your stability and compliance with treatment I assess that you have positive prospects for rehabilitation in the future.

45I take into account the sentencing guidelines referred to s5 of the Sentencing Act1991 where relevant to your case.[2]  I have had regard to the sentencing landscape of the offending before me, in particular the offences of attempted aggravated burglary and intentionally causing injury.  Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. 

[2] Sentencing Act 1991 (Vic) s 5.

46The principles of totality, proportionality and parsimony are also important considerations here, they require me to make sure the total sentence is appropriate to the total criminality, that the punishment should fit the crime and that I should do no more than necessary to appropriately punish you.  I have taken these principles into account in fixing the sentence I am about to impose.

47In relation to each of the charges before the court you are convicted and sentenced to be imprisonment for an aggregate period of 96 days.

48In addition, I order you to be placed on a community corrections order for a period of 12 months.  The conditions of this community corrections order include that you:

(a)   Attend for supervision;

(b)   That you undergo assessment and treatment for drug dependence; and

(c)   That you undergo assessment and treatment for mental health issues.

49So in addition to the conditions that I have imposed there are standard conditions that you have to comply with, and you are likely to already know these but I have to go through them with you.

50So the most important of the standard conditions is that you not commit another offence punishable by imprisonment within the period of the order - so that is for the next 12 months.

51You need to report within two working days to Coolaroo Community Corrections.

52You are required to advise your supervising Corrections officer of any change of address of where you are living or working within two clear working days.

53And it is a term of all community correction orders that you must submit to visits as directed, obey instructions and directions of Corrections officers, and you also cannot leave the State of Victoria without prior permission.

54So, Mr Barut, if you reoffend you will breach the order and if you do not comply with the conditions I have imposed or the standard conditions then you will breach the order.  And if you do breach you will come back before me and potentially you will be resentenced on the original charges, all right?

55OFFENDER:  Yes, Your Honour. 

56HER HONOUR:  I can only put you on a community correction order if you agree. So firstly, do you understand what is involved in such an order?

57OFFENDER:  Yes, Your Honour. 

58HER HONOUR:  And do you consent to doing such an order?

59OFFENDER:  Yes, Your Honour. 

60HER HONOUR:  All right.  So I formally reckon that you have already served 96 days' imprisonment by way of pre-sentence detention.

61Pursuant to s6AAA had you pleaded not guilty to the charges and been found guilty, the sentence I would have imposed on you is a term of 18 months imprisonment with a non-parole period of 10 months.[3] 

[3] Sentencing Act 1991 (Vic) s 6AAA.

62Also, I propose to make the orders for disposal and forfeiture that have been sought by the Crown.  Is there anything further?

63MR KENNEDY:  No, thank you, Your Honour.

64HER HONOUR:  Mr Kennedy, if you could just check the order and get Mr Barut to sign it please. 

65MR KENNEDY:  Can I approach my client?

66HER HONOUR:  Yes, definitely, please.  So that finalises the matter.

67OFFENDER:  Thank you, Your Honour. 

68HER HONOUR:  So good luck with the order, Mr Barut.  Thanks very much to counsel and we'll adjourn.

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