Director of Public Prosecutions v Bulduk
[2017] VCC 324
•29 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVUT BULDUK |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February 2017 |
| DATE OF SENTENCE: | 29 March 2017 |
| CASE MAY BE CITED AS: | DPP v Bulduk |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 324 |
REASONS FOR SENTENCE
---Subject: Rape associated burglary
Sentence: 18 years imprisonment with a non-parole period of 13 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Silbert QC | |
| For the Accused | Mr R Hammill |
HIS HONOUR:
1Davut Bulduk, you have pleaded guilty to two charges of aggravated burglary and six charges of rape. The maximum penalty for each of these offences is twenty five years imprisonment.
2Your offending occurred in two separate incidents on the 31st December 2015 and 26th February 2016. In each incident you entered a home with intent to rape a victim whom you knew to be present in the home.
3The circumstances of your offending are contained in a summary of prosecution opening which was tendered and marked as Exhibit A on the plea. It was read in open court by the Chief Crown Prosecutor Mr Silbert QC and was accepted as being accurate and as forming a proper basis upon which I can proceed to sentence you by your counsel Mr Hammill. It is therefore not necessary that I again set out in full that which is contained in the summary except in an abbreviated way. These sentencing remarks need to be read however with what is contained in the summary.
4On the night of 31st December 2016 you knew that the victim in Charges 1 to 4 was home alone. You had been alerted to this fact quite innocently by her husband, a neighbour, who told you he was going away with his children. You entered victim 1’s home with intent to assault her. (Charge 1) At the time you were unknown to victim 1.
5Sometime after 5.30pm victim 1 emerged from her shower to be confronted by you standing in her kitchen. You were naked save for a balaclava, and you were holding a knife. You took her to her bedroom where you threw her onto her bed. Victim 1 was screaming and you told her to stop or you would kill her. You bound her hands and mouth with tape. You then raped her in a penile vaginal way. (Charge 2) This caused victim 1 considerable pain. She had recently undergone vaginal surgery and what you did to her caused the stitches within her vagina to break and she started bleeding. You told victim 1 to clean herself up, which she did. She went to the bedroom locking the door behind her. You bashed on the door demanding that she open it, which she did. You then penetrated her mouth with your penis which caused victim 1 to vomit (Charge 3) You then turned victim 1 on to her stomach, and using hand lotion as a lubricant, you again penetrated her with your penis into her anus where you ejaculated. (Charge 4)
6Two months later, in a completely separate incident of offending, you raped a 16 year old school girl who had been sleeping in her bed in the sanctity of her own home where she lived with her parents and two siblings. CCTV footage shows you observing victim 2’s home from 3.14am in the morning. At 7.20am you took off your jacket and placed it on the ground in a vacant block behind victim 2’s home. You then jumped the fence and climbed through an open window into the bedroom of victim 2. Your intent was to sexually assault her. (Charge 5)
7Victim 2 awoke when her alarm went off at 7.30am to find you in her bedroom wearing a black balaclava and a T-shirt. She observed you picking her underwear up off the floor. You closed the blind and told her to be quiet and to move over so you could lay next to her. You took off her bra that she was wearing. You pinched her nose hard and you told her to be quiet. Victim 2 was crying and scared and you told her to be quiet. Every time she started to speak you told her to shut up or you would hit her or kill her.
8You inserted your fingers into her vagina before raising your balaclava to your nose after which you licked her vagina (Charge 7) and after this you inserted your penis into her mouth (Charge 6) and you then inserted your erect penis into her vagina (Charge 8) before ejaculating on her stomach. At one point the victim told you she was 14 and a virgin hoping this would stop you, but it did not.
9You then left through a bathroom window and jumped over the back fence where video surveillance shows you putting on the jacket you had earlier placed on the ground and you left behind your T-shirt and balaclava.
10Your offending was very serious. In my view it falls towards the upper end of offending of this kind. This kind of offending strikes at the very heart of proper standards of behaviour by men towards women in a civilised society like Australia and will not be tolerated.
11All of the offending was planned and premeditated. You went to the home of each victim equipped with a balaclava. You cased victim 2’s home for some hours before you entered, and you placed your jacket deliberately in the path of your planned getaway. I agree with the prosecution submission that the only reasonable inference that can be drawn is that you entered the home of each victim for the purpose of sexually assaulting each victim. Mr Hammill did not suggest otherwise. In neither episode of offending did you wear a condom.
12In the case of each victim you threatened violence and you carried out a measure of violence. In the case of victim 1 you armed yourself with a knife, doubtless to reinforce your threats and you used tape to bind her hands. You inflicted pain and suffering upon her when you penetrated her vagina with your penis causing her recent surgery to bleed. In the case of victim 2 you pinched her nose hard and you placed your hands around her neck.
13You subjected each victim to a terrifying experience which neither is likely to forget. Having been told by victim 1 that she had recently undergone vaginal surgery, you showed no concern or sympathy for the fact you hurt her causing her to bleed. Rather, your response was to ask her to clean herself up before you anally penetrated her until you ejaculated. In my mind, in all the circumstances, that can rightly be regarded as the worst act of your offending. You totally abused and humiliated victim 1 by this act and thought only of your own sexual gratification by the way you acted towards her. My sentence on charge 4 will therefore be the base sentence.
14Victim 2 was a school girl aged 16. She pleaded with you telling you she was just 14 and a virgin but this did not stop you.
15I received into evidence a hand written letter from you of some 4 pages in length. (Exhibit 3) In that letter you set out a lot of information as to your background and you detailed how your life has fallen apart after you started using the drug Ice after your marriage failed. You told me that at the time of these offences you were Ice affected. That may have been the case and it may in part explain the offending, but it in no way excuses it. You chose to use Ice at the time of offending and you knew what effect it would have upon you.
16But in my opinion the fact you were Ice affected only partly explains this offending. There was nothing spontaneous or irrational about this offending. You planned it. You planned your disguise and you took it with you. You went to victim 1 when you knew her to be alone in the house. You cased victim 2’s home for several hours before entering and you planned your exit path. In my view the explanation that seeks to attribute your behaviour to Ice distracts from the fact that you acted like a sexual predator, and that is the way you behaved towards your victims. They had no chance to protect themselves from you, even in their own respective homes. The public needs protection from you and this must be reflected in the sentence that I pass.
17I admitted into evidence a victim impact statement from victim 1. I have read the document a number of times. It is difficult I think to put into words the effects that your offending has had upon her. She had to move out of the house. She lives in constant fear. She tried to get on with her life in a stoic way without telling anyone about what happened to her, but this raised more questions because she had to explain why she was having so much time off work to attend psychological counselling. Victim 1 will suffer from your offending for the rest of her life.
18So will victim 2. She was a year 11 school girl when you attacked her in her own bed. This had had catastrophic consequences for her as is evident from her victim impact statement. Her schooling ceased. Her hopes and ambition for the future vanished. Her relationship with her boyfriend ceased. She lost her friends and her relationships with her family members changed. Like victim 1 she too lives in constant fear. Every aspect of victim 2’s life has been adversely affected by what you chose to do to her and the psychological damage to her will likely be permanent as might be expected.
19I also admitted into evidence victim impact statements from the mother and sister of victim 2. They have also been affected. The family sold the house to try to start again by moving away from the scene of your crimes. And they threw out much of their old furniture and tried to start afresh. None of this has worked. You have made the mother of victim 2 blame herself because she did not protect her daughter from you and she will live with this for the rest of her life. This was a family full of love and happiness. You have managed to turn it into a family living in constant fear.
20In passing sentence I have taken the contents of the victim impact statements and the effects upon the victims into account as I must.
21You were arrested and charged on the 10th March 2016 and you have been remanded in custody since that time. You initially denied knowledge of the offending against victim 2 and you provided an alibi which was false. You later made admissions but claimed a lack of memory due to use of methamphetamine.
22You have pleaded guilty to the charges and your pleas have saved the time and cost of possibly two trials. You offered to plead guilty to some of the charges at committal and the matter proceeded at committal by way of hand-up-brief.
23I treat you as having indicated that you would plead guilty at the earliest possible opportunity. For this you are entitled to a reduction in sentence because your pleas have saved the time and costs of two trials and, importantly, they have saved each victim from having to give evidence against you and from being cross-examined about your vile and repugnant conduct towards each of them. I also treat your pleas of guilty as signifying your remorse for your offending behaviour.
24In your letter to me you expressed shame at what you had done and you apologised to the victims and their families. Your counsel also apologised on your behalf in open court. I accept that as further indication of your remorse for your offending.
25I turn to matters relating to your background and personal circumstances.
26You were aged 30 at the time of offending and you are now 31. Your parents are hard-working Turkish immigrants who migrated to this country in the early 1970’s. They had a small vineyard which they worked near Mildura where you attended the local primary school. You come from a good family and your upbringing was said to have been normal.
27After year 7 you were sent to a Turkish boarding school near Melbourne but the family suffered financial difficulties and you left this school after year 9 and worked on the vineyard from age 15 until you were about 18 at which time the vineyard failed and the family moved to Melbourne. You underwent training in concreting and you worked in this area for a number of years and eventually started your own concreting business.
28I was told you had difficulty adjusting to life in Melbourne after Mildura. There is more nightlife in Melbourne which you apparently embraced and you began using drugs around your 20th birthday. Initially these were cannabis and speed with alcohol. It was said you lost direction. You then met a woman who was to become your wife after you dated for two years. She was apparently a good influence on you. You ceased drug use and stopped going out. Your work ethic increased and you started your own concreting business.
29You were married at age 22. You have two children aged 8 and 7. It was a stable marriage until the second child was born. Your wife I was told suffered post natal depression. You separated when you were aged 27 or 28 and this is said to have caused tumult in your world. For two or three years leading up to the offending you hoped to effect a reconciliation but you learned that you wife had re-partnered. This is said to have shocked you and you have never recovered. You started going out at night and were again introduced to drug use. I was told you were introduced to the drug Ice about 18 months before the offending and developed a daily habit at a cost of $200 to $300 per day. Your concreting business disintegrated because you had not attended to it.
30I was told you had used Ice about 20 minutes before your arrest. You initially lied to police about your involvement but after receiving legal advice you made appropriate admissions. Your counsel described you as an “Ice Zombie”. That may be so but it is all of your own making and as I say only partly explains your offending. There is no suggestion of any mental illness having played any role either in the offending or in the sentencing process.
31I was told and accept you have remained drug free at the Metropolitan Remand Centre where you have been remanded in custody and to your credit you have been a good prisoner, have not caused any trouble and you have completed a number of courses whilst on remand. I received into evidence various certificates relating to these courses.
32You have no relevant prior criminal history. I admitted into evidence some written references from family and friends and business acquaintances each of which speaks well of you as a person of good character and suggests this offending is out of character. They also show that you come from a good hard working family and have good support, this offending notwithstanding.
33In offending of this kind the sentence imposed must reflect proper application of the principles of general and specific deterrence. Those who would seek to offend as you have must be deterred from doing so by the sentences passed by the courts. The sentence must also have proper regard to the principle of just punishment and must appropriately serve to denounce your offending. I must also have proper regard to your prospects for rehabilitation which I have assessed as reasonable. I cannot say you will not re-offend again in a similar way given the opportunity. I am of the opinion you are remorseful as I have said, and that is a good starting point, and you appear to have good family support but your parents will be elderly when you are eventually released from prison. I expect you will undergo the sex offenders program whilst in prison.
34In addition to the sentencing principles which ordinarily apply, because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on Charges 3 to 8 inclusive as a “serious sexual offender” within the meaning of section 6B of the Sentencing Act 1991. In determining the length of any prison sentence imposed on each charge where you fall to be sentenced as a “serious sexual offender”, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances, within section 6D of the Act.
35This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of my discretion, I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. In my view, the overall effective sentence I propose will properly and adequately provide for protection of the community. I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence.
36Section 6E of the Act provides that every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed, be served cumulatively on any other sentence I impose on you. In respect of Charges 3 to 8, I will impose some cumulation of part of the sentence imposed on each of those charges, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. I will not accumulate any of the sentence imposed on Charge 1. I am of the opinion that the sentences imposed for the offending against victim 1 and the accumulation I have provided for is sufficient. I will accumulate some of the sentence imposed on Charge 5. That is because you will be sentenced as a serious sexual offender on that charge and because it is the second charge of aggravated burglary.
37I must also have regard to current sentencing practices for offending of this kind. In this regard Mr Silbert referred me to the decision of the Court of Appeal in the DPP v Morris & Brooke [2015] VSCA 155. That was also a case of very high level sexual offending involving two accused with one victim and one episode of offending involving multiple crimes. The offending there involved a higher level of physical assault as well as appalling treatment of the victim, including racial abuse and forced ingestion of drugs, by two offenders in the one episode of offending. While that case arguably involved a greater level of violence, abuse and humiliation by two accused towards the victim, this case be distinguished I think from your offending. Your offending involved two separate episodes of high level sexual assault of each victim in their own home. In order to appropriately punish your offending there must be a proper measure of accumulation so that the sentences imposed on you for offending against victim 2 are not diluted.
38Mr Silbert stressed the very high level of your offending and submitted any sentence imposed must properly reflect application of the principle of general deterrence and protection of the community. He referred to The Queen v Kilic (2016) HCA 48 where the High Court said current sentencing practices are an important factor to be taken into account by a sentencing judge but only one of a number of factors, the most important being an assessment of the overall level of offending. Mr Silbert submitted that your offending, whilst not of the worst kind, it was nevertheless in the upper quartile.
39Mr Hammill did not dispute the relevant sentencing principles that I must apply here and he recognised that your offending called for a stern sentence. He accepted that your offending had no redeeming features and involved violent sexual assault. He stressed your early guilty pleas which he submitted were of considerable value. He also stressed your remorse and he asked me to take into account the explanation of your offending which he submitted was your Ice addiction. He pointed to your previous good character, your lack of relevant prior convictions, your prospects for rehabilitation and your good family support. As I said earlier, I am of the opinion the fact you were on the drug Ice at the time of offending only partly explains your offending and it certainly does not excuse it.
40In passing sentence upon you I generally accept the submissions of Mr Silbert. Your offending is I think properly described as falling within the upper quartile for offending of this kind deserving of condign punishment. Would you please stand, Mr Bulduk.
41On Charge 1 aggravated burglary you are convicted and sentenced to a term of imprisonment of five (5) years.
42On Charge 2 rape you are convicted and sentenced to a term of imprisonment of seven (7) years.
43On Charge 3 rape you are convicted and sentenced to a term of imprisonment of seven (7) years.
44On Charge 4 rape you are convicted and sentenced to a term of imprisonment of eight (8) years.
45On Charge 5 aggravated burglary you are convicted and sentenced to a term of imprisonment of five (5) years.
46On Charge 6 rape you are convicted and sentenced to a term of imprisonment of seven (7) years.
47On Charge 7 rape you are convicted and sentenced to a term of imprisonment of seven (7) years.
48On Charge 8 rape you are convicted and sentenced to a term of imprisonment of seven (7) years.
49I direct that five (5) years of the sentence imposed on Charge 8, one year of each of the sentences imposed on Charges 2, 3, 5, 6 and 7 respectively, cumulate upon the sentence imposed on Charge 4 and upon each other making a total effective sentence of eighteen (18) years imprisonment. Otherwise, I direct for the purposes of section 6E of the Act that there be no further accumulation of the sentences I have imposed this day.
50I direct that you serve a minimum term of 13 years imprisonment before being eligible for release on parole.
51Pursuant to section 6F of the Sentencing Act 1991 I direct the fact that I have sentenced you on Charges 3 to 8 inclusive as a “serious sexual offender” within section 6B of the Act be entered into the records of this Court.
52For the purposes of section 6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 22 years and I would have fixed a non-parole period of 16 years.
53I declare there has been 385 days pre-sentence detention of the sentences passed this day and I direct that be entered in the records of the court and be deducted administratively.
54Because you have been convicted of these crimes you are a registrable offender within the meaning of the Sex Offenders Registration Act 2004 with reporting obligations for life.
55I have been asked to sign a disposal order relating to various items. This application by the prosecution was not opposed and I have signed the order. Are there any questions arising out of that, Mr Gokler?
56MR GOKLER: No, Your Honour.
57HIS HONOUR: Mr Donaghy?
58MR DONAGHY: No, Your Honour.
59HIS HONOUR: Very well, would you remove the prisoner please?
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