Director of Public Prosecutions v Bultan
[2019] VCC 457
•3 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HALUK BULTAN |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 March 2019 |
| DATE OF SENTENCE: | 3 April 2019 |
| CASE MAY BE CITED AS: | DPP v Bultan |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 457 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty plea – causing serious injury recklessly – common assault – arson – commit indictable offence whilst on bail – Verdins considerations not enlivened – offender under the influence of methylamphetamine at the time of offending.
Legislation Cited: Crimes Act 1958 (Vic), Bail Act 1977 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269, R v Rees [2011] VSC 523, DPP v Arvanitidis (2008) 202 A Crim R 300, Vergados v The Queen [2011] VSCA 438
Sentence:Total Effective Sentence of 5 years and 9 months imprisonment, with a non-parole period of 4 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Cavka (Sentence) Mr S Lee (Plea) | Office of Public Prosecutions |
| For the Accused | Mr A V Chernok | Theo Magazis & Associates |
HIS HONOUR:
Introduction
1Haluk Bultan, you have pleaded guilty to the following charges:
2One charge of causing serious injury recklessly contrary to s17 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment (Charge 1);
3One charge of common assault contrary to common law which carries a maximum penalty of five years imprisonment (Charge 2);
4One charge of arson contrary to s.197(1) of the Crimes Act 1958 which carries a maximum penalty of ten year imprisonment (Charge 3).
5You also have pleaded guilty to one related summary charge, Charge 12, commit indictable offence whilst on bail contrary to s30B of the Bail Act 1977 which carries a maximum penalty of three months imprisonment or 30 penalty units.
6You have also admitted your criminal record.
7The prosecution opening was exhibited on the plea and may be summarised as follows:
8At the time of the offending, Sureyya Erdogan who was 57 years of age resided in a one-bedroom rental property located at in Victoria Street, Seddon. She was a family friend of yours. You had been bailed to reside at Ms Erdogan's home two days earlier. John McDonald was a friend of Ms Erdogan and had known her for approximately two months. Cosmin Tonchin was at the time Mr McDonald's house mate.
9At approximately 11 pm on Saturday 18 November 2017, Mr McDonald and Mr Tonchin attended at the property in Victoria Street, Seddon to visit Ms Erdogan. You were introduced to Mr McDonald and Mr Tonchin by Ms Erdogan. You, Ms Erdogan, Mr McDonald and Mr Tonchin sat on couches in the lounge room of the premises, drank alcohol and talked together. As time progressed, you became paranoid and started to talk about your time in gaol, that people had hits out on you and that people wanted to kill you.
10You got up and left the lounge room. You returned to the lounge room carrying a knife in your hand, walked directly towards Ms Erdogan who was sitting down on the couch next to Mr McDonald. You stood over Ms Erdogan and began to stab her multiple times to her upper chest and body, causing blood to go everywhere. You then stated, "now we're even, now we're even” while you were still holding the knife in your hand. This conduct relates to Charge 1, causing serious injury recklessly.
11You then chased Ms Erdogan, Mr McDonald and Mr Tonchin out of the premises to the front gate. Ms Erdogan was screaming. Once out of the front gate, Ms Erdogan and Mr McDonald ran south along Victoria Street and stopped at the intersection of Vigo and Victoria Streets where Ms Erdogan collapsed from her injuries.
12You chased Mr Tonchin north on Victoria Street along the eastern footpath while still armed with the knife. Mr Tonchin yelled "help me" and ran out onto Victoria Street in front of a vehicle being driven by a witness, Emma Rickards. You also ran out onto Victoria Street, however, you stopped chasing Mr Tonchin when you observed the vehicle. You ran behind the vehicle and into Young Street. This conduct relates to Charge 2, common assault.
13You ran into a laneway between Young Street and Pilgrim Street. You walked south along the laneway towards Pilgrim Street and slowed down once you reached the end of the laneway. You exited the laneway and ran west into Pilgrim Street. Your actions were captured on CCTV footage which recorded both audio and visual files.
14You were stopped by a male resident as you ran into Pilgrim Street. You took off your blue singlet top and sat down on the gutter. Upon hearing police sirens, you ran west along Pilgrim Street and turned into Windsor Street. At approximately 12am on Sunday 19 November 2017, you attended at
a property in Windsor Street, Seddon. You entered the front yard and pushed a steel stool up against the side fence located on the southern side of the premises. You stood on the stool, jumped the fence and entered the rear yard of the Windsor Street property.15Once at the rear of the premises, you entered a one-bedroom semi-detached self-contained living quarter while Mr Van Nguyen and Ms Noi Van were asleep in the main residence. You used a cigarette lighter and a pressure packed can to set fire to a mattress and bed located in the bedroom. This is the conduct that relates to Charge 3, arson.
16You exited the self-contained living quarter and re-entered the rear yard of
the property. You placed a child's bicycle helmet on your head and picked up a fishing rod. You jumped the fence into the rear yard of property next door and spoke to Ms Nita Luke. You ran down the side of this property, dropped the helmet and fishing rod and exited via a side gate into Windsor Street. You stood outside the property in Windsor Street and continually lit a cigarette lighter.17At approximately 12.15 am on Sunday 19 November 2007, you were located by police in Windsor Street and arrested. You complied with a police direction to lie down on the ground and as you did, you threw the cigarette lighter onto the ground.
18At approximately 12.05 am on Sunday 19 November 2017, Ms Erdogan was treated by Ambulance Victoria paramedics in Victoria Street, Seddon. She sustained multiple injuries as a result of being stabbed by you, including a full thickness laceration to her left check, a large full thickness laceration to her right wrist, wounds to the right side of her neck, chest and shoulder and a wound to her left forearm.
19Ms Erdogan was conveyed by ambulance to The Royal Melbourne Hospital where she underwent surgery on her right wrist to repair tendon damage and remained in hospital for approximately four weeks.
20In January 2018, Ms Erdogan was referred to psychologist Shaun Goldberg for assessment and treatment. Mr Goldberg diagnosed Ms Erdogan with post-traumatic stress disorder and depression which in his opinion was a direct result of the stabbing.
21Mr Goldberg is further of the view that the attack has had a profound and severe psychological impact on Ms Erdogan's well-being and mental state where her view of herself, of other and of her future has been significantly impaired.
22As to the related summary offence of commit indictable offence whilst on bail, on 16 November 2017, you were bailed from Broadmeadows Magistrates' Court to appear at the Broadmeadows Magistrates' Court on 14 December 2017. You were bailed with conditions including a condition to reside at Unit 1/89 Victoria Street, Seddon.
23At approximately 12.50 am on Sunday 19 November 2017, you were conveyed to Melbourne West Police Station. You replied no comment to all allegations during the interview, giving no reasons for your actions. You stated during the preamble of the interview that your current address was 1/89 Victoria Street, Seddon and that you were bailed to that address two days prior.
Objective seriousness of the offending
24It is self-evident that your conduct in relation to Charge 1 is very serious. Your unprovoked and unexpected attack on Ms Erdogan was an act of extreme violence and would have been a terrifying experience for her. Your actions left Ms Erdogan with permanent scars and ongoing physical and psychological injuries. The knife attack on Ms Erdogan could have also been a terrifying experience for Mr McDonald and Mr Tonchin to have witnessed.
25Ms Erdogan was a family friend and agreed to take you in, providing her home as your bail address. You were bailed to her home for two days before your attack on her and self-evidently soon after your release you used methylamphetamine or ice heavily.
26After chasing the three occupants of the flat out of the property, you then pursued Mr Tonchin while still armed with the knife. Having witnessed what you had just done to Mr Erdogan, Mr Tonchin would have been in real fear for his own safety and as such, in my view, the circumstances here represent a serious example of common assault.
27Approximately one hour later you attended at the flat of Mr Nguyen and
Ms Phan where you set fire to a mattress and bed. I was not told of the extent of the damaged caused by the fire, however, it appears that the fire was limited to the room in which it was lit, damaging the mattress and bed and causing smoke damage to other parts of the unit.28While your conduct represents serious criminal behaviour, your behaviour on this evening was also bizarre and reflects the fact that you were under the influence of ice at the time.
29That said, it is an all too common occurrence that persons who are using ice heavily, as you were, and had been in the months leading up to the time of these offences, behave in an unexpected and violent manner when under the influence of that insidious drug. The state you were in as a result of your drug taking on this particular night may explain some of your behaviour, but it does not excuse it. The relevance of your drug-induced state will be discussed later in these remarks.
Victim impact statement
30A victim impact statement was prepared by Sureyya Erdogan and read on the plea. Ms Erdogan outlines the ongoing physical and emotional impacts as a result of your crimes. She has damage to the nerves in her hand that were cut, which causes her daily pain and she no longer has full function of her hand. As a result, she is unable to engage in activities she enjoyed before the assault. She has numbness in her face as a result of injury to her jaw. She continues to take daily pain killers and suffers side effects from those drugs which impact on her quality of life. Further, Ms Erdogan is conscious of the scars and is embarrassed when people look at them.
31.As to the emotional impact of the crime, Ms Erdogan knows that she has difficulty sleeping and wakes several times during the night with reoccurring nightmares. She takes medication for depression and anxiety. She states that the assault has taken the joy out of things she used to love doing such as catching up with friends. She is constantly afraid and leaves her lights on at night. I also take into account the observations of psychologist Shaun Goldberg as summarised in the prosecution opening.
Personal circumstances
32Reports were tendered on the plea from psychiatrist, Dr Leon Turnbull, psychiatrist, Dr Anthony Cidoni and a historical report from psychologist, Jeffrey Cummins. The three reports that were tendered provided detailed history of your background and personal circumstances which I will briefly summarise.
33You are 31 years of age and are the second eldest of a sibship of four boys. Your parents separated when you were age nine and you resided with your mother after the separation. Your older brother is married and lives outside the family home. Your younger two brothers live with your mother.
34You had no developmental difficulties nor did you have any difficulties at school in terms of behaviour or learning, although you lost interest in studies in year 12. You were given a pass, although your year 12 score was very low. In 2005 you gained entry into a civil engineering course, however, did not continue with that after six months.
35You were unemployed for a period of 12 months from 2006. You then worked for a production company at the Melbourne Central City Studios where you were employed for eight months fabricating movie sets. That employment took you to October 2007. You were then offered employment at an industrial food machinery company in Campbellfield for a period of time before running your own kitchen business for three years.
36You have been married, however, your relationship ended after your previous release from custody. You have no children.
37As to your substance abuse history, you began to use cannabis from about the age of 17, smoking up to 3 to 4 grams per day. However, on your recent release from custody in 2017, up until the time of these offences, you were using cannabis less frequently.
38As to your ice use, you have described using that drug for the first time about six months prior to the commission of these offences. You were using heavily over that period up to several grams per day. You have also described previous use of ecstasy in your early 20s. In the time leading up to the commission of the offences now before the court, you also reported using MDMA and cocaine irregularly.
39Both Dr Turnbull and Dr Cidoni are of the opinion that you were suffering from a drug-induced psychosis at the time of the offending. You have some other medical conditions which are stable, such as a history of hypothyroidism, nerve damage in your arm and a heart condition when you were aged 15, which has been stabilised with medication.
40Since being in custody, you have remained drug-free. Three urine screens were tendered which corroborate that position together with two certificates in relation to short courses you have completed in custody to assist you in remaining drug-free. You also provided a handwritten letter to the court confirming your commitment to remain drug-free.
41Six references were tendered on the plea, the writers being made up of a combination of friends and family. The common theme in all of the letters provided is that this offending was uncharacteristic and that you are a decent, hardworking and polite person who has been transformed by drug use. I have no doubt that that is the case and sadly it is an all too common observation of people who have come before this court.
42That said, your criminal history that commences in 2006 and contains a number of convictions for violent and other offending does not necessarily support the view held by your friends and family.
Verdins considerations
43Mr Chernok who appeared on your behalf submitted that your drug-induced psychosis at the time of the commission of the offending is a matter that enlivens Verdins[1] considerations. However, Mr Chernok also conceded that where the psychotic state suffered by you was brought on by your own abuse of methylamphetamine, in circumstances where you do not suffer from any underlying psychiatric condition, any reduction in moral culpability could only be minimal.
[1] (2007) 16 VR 269.
44In circumstances where impairment is caused by drug or alcohol use, what is relevant is a consideration of the offender's degree of knowledge about the possible consequences of taking the drug. As Hollingworth J stated in R v Rees[2]:
"Where an offender knows of the affect on themselves of alcohol or drugs, the voluntary ingestion of such substances is an aggravating feature. The critical factor in determining the significance of a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender".
[2] [2011] VSC 523 at [34].
45In DPP v Arvanitidis[3], Redlich JA stated:
"To lose the benefit of Tsiaras and Verdins it was not necessary that the respondent have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or make him generally dangerous or violent. If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance".
[3] [2008] 202 A Crim R 300 at [34].
46In Vergados v The Queen[4], Warren CJ said as follows:
"Insofar as ground two relates to the question of moral culpability, it was submitted on the plea that the offences were committed whilst the appellant was under the influence of the drug ice. The ingestion of the drug appears to have engendered a violent, unpredictable psychosis which completely subsumed the appellant's ordinary mental functioning. It was that psychosis rather than any mental deficiency which impaired his judgment. Even were that not so, his mental impairment was not such that he would lack the understanding of an ordinary person of the gravity of his offending. It is likely consequence or its criminal character that he had not been suffering from the psychological effects of illicit drugs. Therefore, insofar as it concerns the offences set out in the presentment, the appellant's argument with respect to the first Verdins proposition must fail".
[4] [2011] VSCA 438 at [37].
47You have a long history of drug use and on your own admission had been using ice heavily in the six months before this offence. Further, as you said to
Dr Turnbull, in the period prior to the offending you were also drinking premixed alcoholic drinks and smoking marijuana. Dr Cidoni noted the following in his report:“In terms of insight, he recognised that he had suffered from previous difficulties with methylamphetamine abuse and distorted thinking and behaviour which he accepted after explanation could be due to psychotic illness.”
48While I accept the context in which these observations were made, the fact remains that you do not have any underlying aetiology and therefore your observations as to previous experiences after drug use demonstrate that you understand that using methylamphetamine may distort your thinking and behaviour. Mr Cummins assessed you in 2009 and said that you, "presented of being of normal and of high average intelligence".
49Further, as confirmed by Dr Turnbull and Dr Cidoni, you do not suffer from any underlying mental impairment or condition and it is clear from the letter you wrote to the court that you are articulate and have insight. As such, in my view in all the circumstances, you had an awareness of the effects that the use of ice may have on you, particularly where you, on your own admission, state that you were using heavily in the six months leading up to the offending.
50Moreover use of methylamphetamine or ice is notoriously known to cause unpredictable violent reactions and hallucinations and even if you had not had such a reaction yourself, in my view, for the reasons already stated, you were well aware of the risks involved in using ice to the level that you were at the time. It is also relevant to note that this is not a case where you have acted out of character and committed a violent offence as a result of being under the influence of ice.
51You have a history of violent offending and thus you are aware that you may be at risk of committing violent offences in some circumstances. Further, your behaviour after you left the flat, including your reaction to seeing the car driven by Ms Rickards, hearing the police sirens and ultimately complying immediately with police directions, demonstrates that you were not in such a state that you were unable to make rational decisions. In all the circumstances, in my view, Verdins principles are unable to be enlivened in your case.
Other sentencing considerations
52I take into account your plea of guilty which, while not entered at the earliest opportunity, was entered before any witnesses were cross-examined at the contested committal. As such, your pleas of guilty have facilitated the course of justice and most importantly have avoided the need for witnesses to give evidence and re-live the events of 18 and 19 November 2017.
53While the plea itself may be indicative of remorse, in my view, over and above the plea of guilty, you have demonstrated genuine remorse.
54In a letter written to the court you commence by offering your sincere apologies to the victim, Ms Erdogan. The writers of the references tendered also speak of your remorse and insight you have developed now that you have ceased using drugs. As to your prospects of rehabilitation, Mr Chernok submitted that they are reasonably good in light of a number matters he outlined in his written submissions such as your strong family support.
55In light of the objective evidence, I do not agree and in my view your prospects of rehabilitation should be approached with caution. I accept that now you are drug-free you have gained more insight into the serious and destructive effect of your drug addiction; however, you have a significant criminal history and have been given many opportunities in the past to make the changes needed.
56I was provided with previous sentence remarks from His Honour Judge Mason, from when you appeared in this court in April 2015, on charges of blackmail and being a prohibited person in possession of a firearm. Along with similar matters in mitigation which I am taking into account now, such as your plea of guilty and your family support, His Honour noted as follows:
"The reflection you have undertaken and desire you have expressed to change you life and reform, the courses that you have completed whilst in custody give support for that desire".
57While I accept that your intention to reform in 2015 was genuine, the current offending together with a number of instances of subsequent offending in 2018 demonstrates that you have continued to struggle with change in your life. You clearly are an intelligent man with support in the community and I accept that the battle with drug addiction is not easy. However, this offending demonstrates how dangerous you can become when under the influence of drugs and until you are able to permanently cease using drugs, you remain a risk to the community and to yourself.
58While I accept that you currently have genuine intentions to remain drug and crime free, for the reasons already stated, specific deterrence in my view must also play a part in the sentencing discretion.
59Further, in my view, general deterrence, denunciation of your conduct and protection of the community are also prominent sentencing considerations in the circumstances of your offending.
Sentence
60Mr Bultan, please stand.
61Haluk Bultan, in relation to Charge 1 on the indictment, causing serious injury recklessly, you are convicted and sentenced to five years imprisonment. In relation to Charge 2, common assault, you are convicted and sentenced to 12 months imprisonment. In relation to Charge 3, arson, you are convicted and sentenced to 12 months imprisonment. In relation to Summary Charge 12, commit an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
62I direct that 6 months of Charge 2 and 3 months of Charge 3 be cumulative on each other and on Charge 1. That makes for a total effective sentence of 5 years and 3 months imprisonment. I direct that you serve 4 years imprisonment before becoming eligible for parole.
63Pursuant to s.18 of the Sentencing Act 1991, I declare that 358 days be reckoned as a period of imprisonment already served under the sentence I have imposed. That does not include today.
64Pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced to a period of 7 years imprisonment with a non-parole period of 5 years.
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