Director of Public Prosecutions v Bolcan

[2023] VCC 557

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02071

Indictment No.M11574764

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEMIH JANDAN BOLCAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2013
DATE OF SENTENCE:	13 April 2023
CASE MAY BE CITED AS:	DPP v Bolcan
MEDIUM NEUTRAL CITATION:	[2023] VCC 557

REASONS FOR SENTENCE

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Subject:             CRIMINAL LAW

Catchwords:     Sentence – Plea of guilty – Armed robbery – Summary offence – Drive whilst disqualified – Youthful offender – Spontaneous and reactive offending – Relevant and extensive criminal history – History of substance abuse – Substantial delay in proceedings

Sentence:Convicted and sentenced to Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 22 months’ imprisonment – 625 days declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary orders – Licence disqualification and Forfeiture

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Solicitor for Public Prosecutions
For the Accused	Ms S. Joosten	Leanne Warren and Associates

HER HONOUR:

1Semih Bolcan, you have pleaded guilty to one charge of armed robbery, which has a maximum penalty of 25 years' imprisonment.

2You have also pleaded guilty to the summary charge, which was uplifted to this court, of driving whilst disqualified, which has a maximum penalty of two years' imprisonment.

3In sentencing you I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards the offences.

4The basis for sentencing you is as follows:

5On the evening of 26 July 2021, at about 11.50 pm, the victim in this matter, Jeremy Campbell, was at a friend's address in Camberwell.  Whilst there, his friend Aaron Sharp used Facebook Messenger to contact you and organised to meet you in Bray Street, South Yarra for the purpose of purchasing drugs.

6After organising to meet, Campbell drove Sharp and another friend, Caraelise Klavins, to Bray Street, South Yarra in Ms Klavins' Ford Falcon X50 sedan.

7At about 12.28 am on 27 July 2021 they arrived in Bray Street, South Yarra, where they met with you and your co-accused, Teanna Buchanan.  You and Buchanan entered the car and together you drove to 1 Surrey Road, South Yarra, arriving at about 12.35 am.

8Campbell parked the car a fairly short distance from the address.

9You and the other occupants got out of the car and met with a Leigha Cranston.  At this stage Campbell was in possession of Klavins' car keys.

10The group, comprising you, Campbell, Klavins, Sharp, Buchanan and Cranston, went to Cranston's apartment.

11Campbell, Klavins and Sharp were inside the apartment for about 15 to 20 minutes before an argument between Campbell and you regarding the quality of and payment for the drugs erupted.  As a result of the argument, you stood in the doorway of the apartment and pointed a 30 centimetre hunting knife, which you held in your right hand, towards Campbell.  While holding the knife you said, 'Give us your car keys', demanding the keys to Klavins' vehicle from Campbell.

12When Klavins saw this, she asked Campbell for her keys.  You said to Campbell, 'If you give her the keys she's going to get sliced up'.  Klavins heard this and was afraid you would carry out the threat.  As a result, Campbell handed the keys over to you.

13You left the apartment with the keys and you and Buchanan ran from the building towards Klavins' car.  Both of you got into the car and drove off.

14You were not licensed, and you were disqualified from driving at this time, giving rise to the summary offence.

15Klavins called Triple 0 and police attended.

16At about 1.01 am on 27 July 2021, Campbell sent several Facebook messages and audio messages using Sharp's mobile phone to you, when he wrote:

'Come back I don't care if you have a knife im going you now'.

17At 2.11 am he texted:

'Leave the car where it is'.

18At 2.15 am he texted:

'if you tell us where the car is I will give you azzas $450 [and] we just want the car back'.

19Klavins attended the Prahran police station and made a statement to police.  At about 3.55 am the car was captured by a speed camera at the intersection of Hotham Street and Balaclava Road, St Kilda East.

20At about 8.16 am Klavins sent you a series of Facebook messages, where she wrote:

'If you return the car with everything still in it, I'll retract the fucking police statement and the charges youll end up with when they catch you.  It was on video record the whole time.  Idiot mistake.  Should've taken my phone, not my car'.

21She also sent message saying:

'I couldn't of cared less if you sliced my face open.  Jeremy was the one who let you take the keys and walk away unharmed'.

22These messages were found on your phone after you were arrested.  You and Buchanan were arrested in a multilevel car park at Crown Casino.

23You were deemed to be unfit for a record of interview in respect to the allegations.

24Mr Bolcan, your offending is serious and deserving of a punishment which is just in all the circumstances.  Your conduct must be appropriately denounced.

25Whilst I accept that your offending was spontaneous and reactive, you behaved in a most frightening fashion knowing that the victim was in a vulnerable position, given the context of your association with him and Klavins.  Your conduct was most frightening, to the point where Campbell handed the keys to you in circumstances where he and Klavins were effectively trapped in the apartment where the drug deal was to take place.

26You have a concerning criminal history which commenced in January 2017 where you appeared before the Melbourne Children's Court in respect of the following offences:

(a)five charges of theft of a motor vehicle;

(b)one charge of unlicensed driving;

(c)one charge of failing to give name and address - property damaged;

(d)one charge of robbery;

(e)five charges of theft;

(f)one charge of theft of a bicycle;

(g)two charges of dishonest retention of stolen goods;

(h)four charges of shop steal;

(i)one charge of deal with property suspected of being proceeds of crime;

(j)one charge of possess controlled weapon without excuse;

(k)one charge of failing to answer bail;

(l)one charge of possessing cannabis;

(m)three charges of committing an indictable offence whilst on bail;

(n)two charges of criminal damage; and

(o)one charge of contravening a conduct condition of bail.

Without conviction you were placed on probation for 12 months with the special condition that you must engage in support services as directed by Youth Justice.

27On 1 March 2018, in the Children's Court, you were dealt with for:

(a)three charges of theft of a motor vehicle;

(b)one charge of unlicensed driving;

(c)four charges of committing an indictable offence whilst on bail;

(d)one charge of wilfully damaging property;

(e)one charge of recklessly dealing with proceeds of crime;

(f)one charge of recklessly causing injury;

(g)two charges of attempted theft of a motor vehicle;

(h)three charges of burglary;

(i)two charges of handling stolen goods;

(j)one charge of entering a building with intent to steal;

(k)six charges of theft;

(l)two charges of intentionally damaging property;

(m)one charge of dishonestly use/take in realisation stolen goods;

(n)one charge of dealing with property suspected of being proceeds of crime; and

(o)one charge of possess cannabis.

Without conviction you were placed on a youth supervision order for 12 months.

28On 12 February 2019, in the Heidelberg Magistrates' Court, you were dealt with for:

(a)two charges of burglary;

(b)two charges of theft;

(c)two charges of theft of a motor vehicle;

(d)one charge of fail to answer bail;

(e)three charges of contravening a conduct condition of bail; and

(f)13 charges of dishonestly use/take in retention of stolen goods.

You were sentenced to an aggregate term of 82 days' imprisonment, being time served, and you were ordered to undertake a 12-month community corrections order with 125 hours of community work and conditions in relation to treatment and rehabilitation, including for mental health and drug abuse.

29On that same day, in the Children's Court, you were dealt with for:

(a)shop steal; and

(b)possess prohibited weapon without exemption or approval.

Without conviction you were fined an aggregate of $500.

30On 18 October 2019 you received a 'with conviction' fine of $250 in relation to possess methylamphetamine.

31On 7 April 2021 you received a 'without conviction' adjourned undertaking in relation to one charge of wear/possess thing - jeopardise safety 'PSN gaol'.

32On 7 April 2021 in the Magistrates' Court a contravention of the community corrections order previously imposed was found proven.  Further, you were dealt with for:

(a)two charges of theft of a motor vehicle;

(b)two charges of theft;

(c)three charges of committing an indictable offence whilst on bail;

(d)one charge of dishonestly undertake in retention stolen goods;

(e)one charge of possess methylamphetamine;

(f)one charge of failing to stop vehicle on police direction;

(g)one charge of drive whilst disqualified;

(h)one charge of burglary;

(i)one charge of possess cannabis; and

(j)one charge of possess drug of dependence.

You were sentenced to an aggregate term of 189 days, being time already served.

·On 12 May 2021 you were dealt with for:

·one charge of recklessly causing injury;

·one charge of fail to answer bail;

·one charge of theft;

·one charge of possessing a prohibited weapon without exemption or approval;

·one charge of possessing a controlled weapon without excuse; and

·possess cannabis.

33In relation to possess cannabis you were convicted and discharged.  In relation to the remaining offences, you were sentenced to an aggregate term of three months' imprisonment with pre-sentence detention declared as 35 days.  In combination, you were ordered to undertake a community corrections order to perform 100 hours of community work and to undertake various rehabilitative conditions including rehabilitation and treatment for drug abuse.

34Your counsel told me that you had been released from gaol for about one month at the time you committed the offences for which I sentence you.  This gives me cause for concern, Mr Bolcan, as you have been given the chance to be rehabilitated through community corrections dispositions; however, you have not taken up the offer.

35In sentencing you I take into account the stage at which you entered pleas of guilty, which occurred after a sentence indication hearing conducted by me.  You conducted a committal hearing where Mr Campbell was cross-examined.  Ms Klavins could not be located, so there was no opportunity for her to be cross-examined.  I understand that you made a plea offer on 5 October 2022, which was rejected by the Office of Public Prosecutions, and that after a fairly significant delay the committal hearing concluded in Ms Klavins' absence and you were committed for trial with a plea of not guilty being entered on 9 November 2022.

36One week later your legal representatives notified the prosecution they would seek a sentence indication.  This was confirmed at an initial directions hearing in this court on 7 December 2022 and the sentence indication hearing was conducted on 20 March this year.

37Your counsel accepted that your plea of guilty did not occur at the earliest opportunity.  However, I accept that you are entitled to a fairly substantial discount in the sentence you would otherwise receive in circumstances where you are prepared to plead guilty, notwithstanding Ms Klavins not giving evidence at the committal hearing.  Whilst you did not save other witnesses the time and trouble of giving evidence at the contested committal hearing, and nor did you save the community the time and expense of these proceedings, such savings have been made in respect of running a trial in this court.  And as I say, the committal hearing was not complete in that Ms Klavins did not appear to give evidence.

38Further, you are to be afforded a pronounced amelioration of sentence due to the fact that you have been prepared to plead guilty during the COVID-19 pandemic, contributing to a reduction in the backlog of trials in this court.

39It was not submitted that you have any remorse in relation to your offending and I have no information before me which suggests that you have appropriate insight either.  Certainly running a contested committal hearing is not consistent with any expression of remorse, although you have been prepared to take responsibility in the absence of cross-examination of a key witness, which is something that goes in your favour.  In the end, however, I am unable to find a good deal of evidence of heartfelt remorse as to how your conduct impacted the victims or insight as to the seriousness of your offending.

40In sentencing you I take into account your background as follows:

41You were born in April 2000 and you are 22 years old.  You were 21 at the time of the offending.

42You grew up in suburban Melbourne, moving to Richmond when you were 10 years old.

43You were raised by your mother, Evie, who is of Greek descent.  Your parents separated when you were 18 months old and you did not regularly see your father, last seeing him about five to six years ago.  I understand that your mother repartnered when you were about two years old and your stepfather is a father figure in your life.

44You have three older siblings, aged 31, 29 and 28.  Your siblings are all employed and live independently.  You have remained in contact with them and your mother whilst in custody and you have their support.

45I understand that your mother was diagnosed with lymphoma in 2019 and although she requires surgery she is yet to undergo this.  She has been suffering from severe anxiety due to the fact that she is not vaccinated in relation to COVID-19 and has been unable to leave the house due to fear of contracting the disease.  Your counsel did not have instructions as to whether you are vaccinated, which I thought might have some relevance to the viability of you living with your mother, which is proposed once you are released from custody.

46I was told that one of your siblings has also suffered from cancer, having been found to have a brain tumour when he was 15 years old.  I understand that his cancer is in remission and he is able to work these days.

47I was told that you have a different father to your siblings, with your oldest sibling having a different father to the next two.

48You attended secondary school until Year 10, when you left to pursue employment.  You had difficulty at school due to behavioural issues and an inability to concentrate.  However, you enjoyed school overall.  I was told that when you were in primary school you were diagnosed with attention deficit hyperactivity disorder and you were medicated with Ritalin and Concerta.  You took these medications until about Year 8.

49When you were 15 you worked at a kebab shop and you enjoyed this.  After leaving school you also worked in a bakery at the Richmond Market.  However, your employment stopped after periods of drug use and imprisonment.  You were unemployed at the time you committed the offences for which I now sentence you.

50You have a history of substance misuse, having commenced using cannabis and methamphetamine, that is ice, when you were 17 years old.  You instructed your counsel that your drug use commenced after falling in with the wrong crowd and you quickly became addicted to ice.  After only two months of using ice you were using daily and would run away from home.  Before you were remanded in 2021 you were using ice daily.  You experimented with GHB from the age of 20 years.

51You have never completed drug treatment or any rehabilitative programs whilst in the community.  Since your remand I was told you have been compliant with opioid medication and you have been prescribed buprenorphine injections.  There was no evidence before me as to your abstention from drugs, but your counsel indicated she would make enquiries as to any urine analysis performed whilst you have been on remand.  Your counsel did not seek to address me further in relation to this aspect today.

52In early 2020 you were in a car accident.  You were driving at the time and hit your head.  You were hospitalised for one day for monitoring, but you have experienced no ongoing physical health issues as a result of the accident.

53There was nothing placed before me in support of any mental health issues, including the diagnosis of ADHD when you were a child.  However, I accept that you did suffer from this condition.  You have not been diagnosed with any other mental health conditions and you do not report any current symptoms.  However, you have instructed your counsel that you are very anxious about your mother's health whilst you have been in custody.  In this regard, I note that at the time you committed the offences for which I sentence you your mother had already been diagnosed with cancer, so your anxiety for her health was not so great as to prevent you from committing these offences unfortunately.  It is to be hoped that when you are released you do make greater efforts to address your drug problem and support your mother as she has supported you.

54In sentencing you, I accept that there has been substantial delay in this matter, 601 days as at the time of the sentence or plea indication in the matter and the pre-sentence detention of course exceeds that, being 625 days.  During your remand you were transferred to Fulham Correctional Centre, where you served the majority of your remand period before recently being transferred to the Metropolitan Remand Centre.  I allow for the fact that time in custody has been harder for you due to the COVID-19 restrictions which have been put in place and the fact that you were at Fulham for a substantial period away from your loved ones.  I allow for the fact that you have been subjected to long periods of lockdown and that in-person visits have been restricted.  I also factor in that this has been your longest period in custody, and that your concern for your mother has made time in custody harder.

55Although you have contributed to the delay in this matter, by not entering pleas of guilty at an earlier stage I also accept that there has been delay due to matters outside your control, including the absence of Ms Klavins which led to an adjournment, the absence of the magistrate on another occasion to conduct the committal hearing and counsel availability issues.  Even though some delay was avoidable if you had elected not to conduct a contested committal hearing and pleaded guilty at an earlier stage, I accept that you have had the anxiety of these matters hanging over your head for an extended period and you have used the period in a way that demonstrates your abstinence from drugs, thereby promoting your rehabilitation.

56I accept that you are a youthful offender and I must do what I can to promote your rehabilitation, although I must also give appropriate weight to other relevant sentencing considerations in your case.

57I must give strong weight to general deterrence in a bid to deter others from offending as you have.

58In all the relevant circumstances, including the offer of support from your mother, who has said she is prepared to have you live with her, but also factoring in your offending, your battle with drugs and your criminal history, I assess your prospects of rehabilitation as guarded.  I must place fairly strong weight on specific deterrence and protection of the community.

59Although your counsel had indicated that a community corrections order in combination with a gaol term would be appropriate in your case, on your subsequent instruction she submitted that a term of imprisonment with a non-parole period would be appropriate.  I was prepared to explore a community corrections order; however, in view of your instructions I have determined to impose a head sentence with a non-parole period, in keeping with the sentencing indication that I gave.

60You are convicted of the offence on the indictment and the summary offence.

61In relation to the summary charge of drive whilst disqualified, all driving licences are cancelled and you are disqualified from driving for a period of 12 months.

62In respect of the offence of armed robbery, you are sentenced to three years' imprisonment.

63In respect of driving whilst disqualified, you are sentenced to six months' imprisonment, which will be served concurrently with the other sentence.

64This produces a total effective sentence of three years' imprisonment.

65You are to serve 22 months before being released on parole.

66I declare you have already served 625 days by way of pre‑sentence detention.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a non-parole period of three years.

67Anything arising, counsel?

68COUNSEL:  No, Your Honour.

69HER HONOUR:  Very well.  Now, Ms Guesdon, did you wish to have a word with your client before we adjourn?

70MS JOOSTEN:  Yes, if I briefly could.

71HER HONOUR:  Very well.

72MS JOOSTEN:  Thank you, Your Honour.

73HER HONOUR:  Well, I'll adjourn and everyone else will leave the court so that you can have a confidential conversation.  And if you could let my tipstaff know when you're ready to turn off transmission.

74MS JOOSTEN:  Thank you, Your Honour.

75HER HONOUR:  Thank you.

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