Director of Public Prosecutions v Bozkurt

[2015] VCC 1290

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00001

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEVENT BOZKURT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2015
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v Bozkurt
MEDIUM NEUTRAL CITATION:	[2015] VCC 1290

REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Pleaded guilty to one charge obtaining financial advantage by deception – used false documents to obtain finance to purchase car – married at 17 – now 32 years of age - 2 children – was running successful business – pressures of family and work – commenced using ice –breakdown of marriage and business – commenced offending – breached earlier CCO – recently  attended forensic clinician for alcohol and drug counselling  and psychologist –opportunistic offending -  full admissions – early plea 
Cases Cited: Boulton v R [2007] VSCA 342
Sentence: CCO  3 years 100 hours with treatment programs

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Churchill (For sentence MS Macaness)	Office of Public Prosecutions
For the Offender	Mr P Dunn QC (For sentence Mr M Kelly)	Melasecca Kelly & Zayler

HER HONOUR:

1Levent Bozkurt, you have pleaded guilty to one charge of obtaining a financial advantage by deception.  The maximum penalty is ten years' imprisonment.  You found a driver's licence belonging to David Siemensma, which he had accidentally left on a tram in July 2014.  His driver's licence bore an address in Essendon where he had lived previously. 

2Two months later he contacted the police regarding some infringement notices he had received in his name but related to a 2014 BMW coupe.  He did not own the car or have any knowledge of it.  A BMW dealership confirmed that the car had been sold to a David Siemensma of an Essendon address for $175,000.

3In August you had assumed the identity of Mr Siemensma in order to facilitate the purchase of the car.  In doing so you had paid $1000 cash and raised the rest by way of finance supported by false documents.  You falsified rate notices for the Essendon property and provided pay slips and PAYG tax summary which asserted that David Siemensma was employed by Stud Built Pty Ltd, a business owned by your brother.

4Staff at the BMW dealership confirmed that the photograph on the driver's licence you provided was a photograph of the man who brought the car.  You had removed the photograph of Mr Siemensma and replaced it with your own.  However the rates notice for the Essendon property purported to be from the Moreland Council whereas the Essendon property is in the municipality of Moonee Valley.  The city of Moreland confirmed that the rates notice was false.  In addition the bank details you supplied to BMW for repayment purposes by direct debit were false.  After the police listed the car as stolen it was located parked in an outer suburb and was at the time in the possession of an associate of yours. 

5When interviewed you made full admissions as to the falsifying of the documents in order to deceive the BMW dealership into providing finance for the car as you believed your own details would not have been adequate.  You bought the car to facilitate the transportation of kitchen benchtops that you were selling at the time.  The car was returned to BMW and they incurred a loss of $38,832.80 through depreciation over the two months it was in your possession. 

6You were born in Melbourne of an immigrant family with four siblings all of whom are gainfully employed.  You are now aged 32 and were 31 at the time of the offence.  You married in 2000 at the age of 17 and after some time as a factory worker you began working as a plasterer.  You bought a house at the age of 19 which you soon sold and with the proceeds you bought land and built a second house. 

7You and your wife had two children and meanwhile you studied and qualified as a builder.  Your plastering business was successful with up to 100 employees.  By 2010 the running of the business became overwhelming combined with the pressures of family life and you started using the drug ice for relaxation.  This led to the breakdown of your marriage that same year and unfortunately a liaison with a woman who was also a drug user.  You were unemployed and you returned to live with your parents.

8Until this time you had been law-abiding and never in trouble with the police but in 2010 at the age of 27 you were convicted of assault charges involving your wife and some related charges and were dealt with by way of an adjourned undertaking.  This offending and what has occurred since has been, broadly speaking, drug related.

9Between 2011 and 2012 you committed a large number of charges including fraud, drug related offences, dishonesty and driving charges.  These charges were heard as a large consolidation in the Magistrates' Court and you were placed on a two year Community Corrections Order with conditions which included treatment for drug addiction and attendance at a mens' behaviour change program.  You began working in your brother's business and became engaged in the corrections program but you incurred many absences and continued to use drugs.

10By the time you bought the BMW you were on bail and you were about halfway through the CCO and had had many unacceptable absences.  You failed to attend the mens' behaviour change program at all.  You completed a little under half of the 250 unpaid work hours you were ordered to do.  You were also said to have breached the order by further summary offending as well as the charge in this matter.  You have a number of outstanding charges to be heard in the Magistrates' Court very soon together with the breach proceedings.  I note that the breach report produced by Community Corrections recommended cancellation of the order and that you be re-sentenced.  That, of course, will be a matter for the learned magistrate.

11The plea hearing in relation to this matter was originally listed for March and then May 2015.  By May it appears that the threat of imprisonment and separation from your children was beginning to motivate your improved attitude to your rehabilitation and it particular to compliance with the order.

12Perhaps you had already gained some insight into your situation through your voluntary commitment to alcohol and drug counselling since January when you began to see a forensic clinician, Ms Denise Abadee.  She created a treatment plan for you which involved weekly counselling and referrals to other professionals.  You attended regularly until recently and also saw Professor John Curry who provided a brief report dated 22 April 2015, confirming his treatment of you for severe methamphetamine dependence.  He described you as highly motivated and that you have successfully ceased using the drug. 

13Ms Abadee reported that recently your attendance with her dropped off as you tried to perform more work hours and attend your other Corrections appointments as well as spending time with your children.  Despite that she said in evidence here in court that she has continued to keep in touch with you.

14Earlier in the year you also saw Dr Michael Aufgang, a general practitioner, who arranged urine screening.  All except the first screen, dated 29 January 2015 disclosed that neither amphetamine nor any other drug was detected. 

15The plan that was arranged for you included mental health treatment and you were referred to a psychologist, Sandra Raponi-Saunders.  She provided a report dated 1 June 2015 stating that she saw you three times between March and May and she discerned no psychological disorders but considers you would benefit from therapy to assist you to gain insight into negative behaviours and the consequences.

16Your former wife, Celine Erin, wrote a reference for you explaining that you have remained friends and that you have always played an important role in the upbringing of your children, looking after them every weekend and two evenings during the weeks.  She said you are an excellent father to them.

17You have had quite intensive treatment and support over the past year or so consistent with your needs as a severely addicted person.  Your offending since its commencement in 2010 has been consistent with that addiction,  demonstrated, in part, by the fact that there was no offending before that time.  Although there is no direct link between your drug addiction and this offence it was committed at a time when your lifestyle was dominantly influenced by drug use.

18It is a common experience of those appearing before the courts in such circumstances that their rehabilitation takes longer and that their initial attempts fail.  When further offending and prolonged drug use occurs sentencing is more difficult because although the offending might call for imprisonment treatment needs are unlikely to be met that way.

19Ultimately the protection of the community is best served by an offender's rehabilitation and so imprisonment generally should be avoided if there are other appropriate options having taken into account the gravity of the offending and any other relevant factors.

20It is a mitigating factor that you made full admissions to the police immediately having attended the police station by appointment, and you pleaded guilty at an early stage.  This has avoided the expense and inconvenience of a trial and has saved witnesses from having to come to court and giving evidence.  For that you are entitled to a discount on your sentence.  I also accept your plea as an indication of remorse, which you have expressed to those who have been treating you.  That is an important factor in weighing your prospects for rehabilitation.

21Your offending on this occasion was opportunistic in that it followed the finding of a lost driver's licence, and the manner in which the fraud was executed was relatively unsophisticated and clumsy with a high chance of detection.  The car was recovered and the loss to the dealer was in terms of depreciation of the value of the car as I have already explained.  Those matters reduce, somewhat, the gravity of the offence.

22You have been assessed as suitable for a further Community Corrections Order on the basis that you are at medium risk of re-offending and that despite the pending breach proceedings your attitude has improved and you are now regarded as compliant.

23The prosecution submission on sentence is that you should serve a term of imprisonment before commencing a further Community Corrections Order.  That would have the effect of delaying your treatment and disrupting the rapport you have established with your treaters which is no small matter in the case of a severe drug addict.

24Since the decision in the case of Boulton v R it is accepted that punitive and deterrence components of a CCO can be adequate even in cases of serious offending, depending on the circumstances.  I am satisfied that this is such a case.  I will ask you to stand now please, Mr Bozkurt.

25I shall impose a Community Corrections Order which will begin today and will last for three years.  You must perform 100 hours of unpaid community work within the first 6 months.  That is a moderate amount taking into account that you have commitments both to performing all your obligations under the CCO, looking after your children and earning an income.  You will be under supervision and you must submit for treatment for drug abuse to assist you to remain abstinent.  You must take part in any other programs to address the risk of re-offending and your mental health treatment will be assessed and monitored.

26You have to attend the Broadmeadows Correctional Services office which is at 25 to 27 Dimboola Road, Broadmeadows within two days of today, so two working days takes it to Tuesday at four o'clock; you have to get there before then.

27You must also return to court regularly for judicial monitoring.  Each time that happens I will receive a report as to your progress and your case manager will be present via a video link.  It will not be necessary for you to have legal representation on those occasions. 

28If you had pleaded not guilty I would have sentenced you to a four year CCO with 180 hours of unpaid work. 

29The prosecution seeks an order for compensation to be paid to BMW, to the dealership, for $38,832.80.  Through your counsel you do not oppose that and I make that order. 

30The only other thing I want to say before you sign the CCO, Mr Bozkurt, is that you are well aware, through your own experience, of the obligations and the importance of those obligations under an order like this, and I am sure you are well aware of the need to comply absolutely with it.

31Now I am going to look for a date for the first judicial monitoring appointment.  That needs to be put into the CCO before it can be printed so just take a seat for the moment.  Wednesday 11 November, will that be suitable and if I make it 9.30 is that a time when you can get here?

32OFFENDER:  Yes.

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HER HONOUR:  All right.  Is there anything I've omitted or neglected,

Mr Kelly, Ms  Macaness?

34MR KELLY:  No, Your Honour.

35MS MACANESS:  No, Your Honour.

36HER HONOUR:  Ms Macaness.  All right, the CCO will be ready in a minute and you can have a look at it first, Mr Kelly, if you wish to.

37MR KELLY:  As Your Honour pleases.

(CCO signed and acknowledged)

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