Director of Public Prosecutions v Bultan

[2015] VCC 415

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02337

DIRECTOR OF PUBLIC PROSECUTIONS

v

HALUK BULTAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February and 31 March 2015
DATE OF SENTENCE:	1 April 2015
CASE MAY BE CITED AS:	DPP v Bultan
MEDIUM NEUTRAL CITATION:	[2015] VCC 415

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:            Blackmail - carrying or possessing a firearm whilst prohibited

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
  McAleer v The Queen [2015] VSCA 4
  Sherritt v The Queen [2015] VSCA 1
  Marocchini v The Queen [2015] VSCA 29

Cole  (a Pseudonym) v The Queen [2015] VSCA 44

Sentence:                 27 months' imprisonment, non-parole period 18 months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Guesdon	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr P. Skehan Mr S. Kenny	David Barrese & Associates

HIS HONOUR: 

1Haluk Bultan, you have pleaded guilty to one charge of blackmail and two charges of carrying or possessing a firearm whilst prohibited. 

-    Blackmail carries a maximum penalty of 15 years' imprisonment. 

-    Carrying or possessing a firearm whilst prohibited carries a maximum penalty of 1,200 penalty units or 10 years' imprisonment.

2You are now aged 27 years, having been born on 6 April 1987 and you were aged 26 at the time of the offending.  In fact, you will be 28 next week.  You have an extensive criminal history, about which I will go into more detail later.

3The victim in this matter is Mr Phillip Pledger.  At the time of the alleged offending, he was the owner of Phillip's Joinery Projects and he was 56 years old.

4The circumstances of your offending are as follows. 

5On 9 July 2013, you went to Phillip’s Joinery Projects at an address in Cheltenham.  At the time you were with an unknown man, who is another offender in this matter.  At about 12.30 that afternoon, the victim arrived at the business and parked his Toyota utility in the front driveway.  You and the unknown offender approached the victim as he alighted from his car.

6

You asked the victim if you could talk to him about a kitchen for a small restaurant.  The victim took you and the unknown offender into his office.  While you were inside the office, you said to the victim, "We're here to collect the money that you owe our friend.  You owe $78,000."  When these words were spoken, the victim realised that you two were there on behalf of another business known as Kara Group.  At the time, the victim was engaged in a civil dispute with Kara Group.      

7After you had all entered the office, the unknown offender locked the office door behind you.  A discussion took place between you and the victim in relation to the money.  During the discussion, you approached the victim and pushed him a number of times.  The victim tried to get out of his chair and stand up a number of times, but you repeatedly grabbed him and pushed him back into the chair.

8You said to the victim, "I'm not leaving without the money."  You went and sat on the opposite side of the desk and said to the victim, "We do have one other option."  You produced a silver pistol from your jacket pocket and placed it in your lap.  You then pulled back the slide mechanism of the pistol.  The victim feared that he would be shot.  This conduct constitutes Charge 1, blackmail, and Charge 2, prohibited person carrying a firearm.

9At one point the victim's employee opened the door to the workshop, saw that you three were still there and closed the door again without speaking to anyone.  You had contacted someone from Kara Group during the discussion to see what steps to take.  You told the victim that he was expected to attend a meeting with a representative of Kara Group at a factory in Campbellfield the following day.  The victim said he would not go to the factory.  You then told the victim to attend a BP service station in Somerton the following day to discuss payment of the alleged debt with a representative of Kara Group.

10You gave the victim a mobile telephone number and told him that he needed to ring the number to confirm that he was going to attend at the service station in Somerton. 

11In addition, you said that you needed something to the value of $5,000 to ensure the victim would attend at Somerton the following day.  You and the unknown offender then walked out of the office and got into the victim's car, which was parked in the driveway with the keys in it, and drove away in that car.

12The victim went home and told his wife what had happened.  He then went to the Moorabbin Police Complex and reported the incident. 

13At about 9.45 the following morning, 10 July 2013, the victim contacted you on the mobile telephone number you had given him the previous day.  At the time, the victim was in the company of the police.  You instructed the victim to go to the BP service station on the Hume Highway at Somerton at noon.  You stated that a representative of Kara Group would be there to meet the victim.  That telephone conversation was recorded by police.

14At about 11.45 that morning the victim attended the BP service station on the Hume Highway, Somerton.  He was accompanied by a police officer attached to the Kingston Criminal Investigation Unit, Detective Senior Sergeant Matthews. 

15At about 12.25 pm no one had appeared, so the victim once again called you on the mobile telephone number previously provided by you.  You said that the meeting had been moved to a Caltex service station located at 315 Hume Highway Somerton, which was about one kilometre north of where the victim and Detective Senior Sergeant Matthews were waiting.

16At about 12.30 pm that afternoon the victim drove to the Caltex service station and parked in a rear car park.  You were seated in the driver's seat of a Ford Ranger utility waiting for him.  You motioned to the victim to pull over and stop.  When the victim stopped the car you walked over and spoke to him through the driver's window. 

17The victim recognised you as the same male who had attended the business the previous day and who had produced the silver pistol and then driven away in the victim's Toyota utility.  When the victim asked you where his Toyota utility was, you said, "We will organise that later."  A dark grey Honda sedan with two people inside was parked a short distance away. 

18At that point you were arrested by the police.  Upon searching you, the police discovered a silver Browning 0.25 semi-automatic pistol in the front pocket of your pants.  The pistol was loaded and ready to fire with one round in the chamber and five rounds in the magazine.  When the victim saw the gun he remarked, "That is the gun he had yesterday."  This conduct constitutes Charge 3, prohibited person possessing a firearm.  The police also located two HTC mobile telephones, one of which was assigned the telephone number you had given the victim the previous day.

19As you were being arrested police approached the Honda sedan, however it sped away heading north along the Hume Highway.  The two occupants were later identified as being Mustafa and Memis Karamemis, the sons of the company director of the Kara Group.

20You were taken to the Craigieburn police station, where you participated in a formal record of interview.  You made a “no comment” interview.  At the conclusion of the interview, you told the police where the victim's Toyota utility was parked.  Consequently, the vehicle was recovered.

21On 8 August 2013, the silver Browning 0.25 semi-automatic pistol located on you was conveyed to the Victorian Forensic Science Laboratory.  It was analysed and found to be in full operational order and was unregistered.

22You were prohibited from possessing a firearm.  You had been sentenced on 28 September 2007 to six months' imprisonment wholly suspended for 18 months for the offences of robbery and intentionally causing injury.  The offending in this matter on 9 and 10 July 2013 occurred within five years of the completion of that term of imprisonment.  You were further sentenced on 21 June 2012 to ten days' imprisonment, in relation to the same charges in default of payment of a fine.

23

You were arraigned and pleaded guilty to the charges on this indictment on

27 February 2015, prior to the second listing of the trial.  The victim, Mr Pledger, was cross-examined at committal.

24Pre-sentence detention pursuant to s.18 of the Sentencing Act is 85 days.  You were remanded in custody on 10 July 2013 and released on bail on 30 August 2013.  Your bail was revoked after arraignment on 27 February 2015 and you were remanded in custody until today.

25You were remanded on 9 September 2014 in relation to further offending and remain in custody on those matters.  Those matters are listed at the Broadmeadows Magistrates' Court on 28 May 2015.  There is a further 178 days’ detention referable to this matter.

26Forfeiture orders are sought in relation to the two mobile phones and the firearm. 

27Phillip Pledger has made a victim impact statement.  In it, Mr Pledger refers to the fear he has experienced, stress-related headaches, insomnia, hyper-vigilance and depression.  Mental health treatment is continuing for his reactive emotional state following the incident. 

28I now turn to your personal circumstances.  As I noted earlier, you are now aged 27, you will in fact be 28 next week and you were 26 at the time of the offending. 

29

Your criminal history began at the Broadmeadows Children's Court when, at the age of 19, you were fined, put on a 12-month good behaviour bond and had your licence suspended for driving offences, making a false report to police and failing to answer bail.  On the same day at the Broadmeadows Magistrates' Court, you were put on a 12-month community-based order for driving an unregistered vehicle, escaping from custody and assaulting police, damaging property and unlawful assault, as well as for charges of dealing with property suspected of being the proceeds of crime and for possession of cannabis. 

30Less than a year later you appeared again at that court for driving offences and for breaching the community-based order.  You were given a six-month sentence which was wholly suspended for 12 months and a six-month intensive correction order.  Six weeks later you were given a one-month sentence which was wholly suspended for six months and fined for driving offences.

31As noted earlier, two months later, in September 2007 when you were aged 20, you appeared at the Melbourne Magistrates' Court on violence charges, for which you were again given a six-month sentence which was wholly suspended, this time for 18 months, and you were fined $3,000.

32On 31 January 2008 you were fined for the breach of the original good behaviour bond. 

33On 12 June 2008 you were sentenced, for driving whilst disqualified and for breaching your intensive corrections order, to serve the unexpired portion of six months' imprisonment.  Further, your suspended sentence was wholly restored and you were order to serve the six-month term.  And for further driving, theft and drug charges, you were again given a wholly suspended sentence, of eight months this time, operational period nine months, and your licence was cancelled and you were fined.

34On 5 May 2009 you appeared at this court when you successfully appealed your terms of imprisonment imposed on 12 June 2008.  You received a four-month intensive correction order and your suspended sentence was extended. 

35In November 2011 you were given a one-month term of imprisonment, wholly suspended for 12 months, with a $1,500 fine for numerous driving offences.  Later that month you were given a three-month term of imprisonment, wholly suspended for 18 months, with $1,000 fine for numerous driving offences.

36In March 2012 you were fined $1,500 for unlawful assault and in June of that year, as noted earlier, you were imprisoned for ten days on the breach of your community-based order and in default of payment of the balance of your fine.

37You have, therefore, a chequered history of having received numerous non-custodial orders and you have had several breaches.  Of concern is that you keep re-offending despite latitude being extended by the courts.

38Whilst the majority of your offending over the years has consisted of driving offences, you have several prior convictions for offences of violence: assaults in 2006, robbery and intentionally cause injury in 2007 and assault again in 2012.  The current type of offending together with your last conviction indicates a disturbing descent into more serious crime.

39You were educated to Year 12 and accepted into engineering at university.  It did not suit you and you commenced employment, initially in labouring jobs, but then as a successful salesman for a commercial kitchen outfitter.  You worked with that organisation for two years before commencing your own business in the same field.

40Your business was going well until you suffered serious injury as a result of a motorcycle accident in late 2010.  You were unable to fully return to your business and eventually had to rely on income protection insurance payments as income.  This lasted until you were remanded in custody on these matters.

41You married in 2011.  Unfortunately, your wife was badly injured in a car accident in 2014 when she was flung from the car.  She has now received a diagnosis of a form of leukaemia and will require treatment.  Her prognosis is uncertain.

42You have a very supportive family, consisting of your parents and two brothers.  You father has worked as a taxi driver all his life and neither of your brothers has offended against the criminal law. 

43A number of character references were also tendered on your plea, which speak well of your work ethic, capability and otherwise good nature.  Mr Selek, who has visited you in custody, has commented on the way in which you have reflected on your life whilst in prison on remand and your determination not to re-offend.  There have also been expressions of willingness to employ you on your eventual release.

44In mitigation, I accept and have taken into account the matters urged on your behalf by your counsel, including:

·     your plea of guilty, which has spared the expense and inconvenience of an estimated seven days at trial and the trauma and anxiety of the victim in otherwise having to give evidence in this court;

·     your good work ethic and record of employment;

·     the close support you have from your wife, your family and your friends;

·     the reflection you have undertaken and desire you have expressed to change your life and reform - the courses that you have completed whilst in custody give support to that desire;

·     the anxiety and stress that you experience by not being able to support your wife during her illness if you are in a custodial environment.

45

I note that you have already served a period of 85 days in remand custody for this offending and that period can be taken into consideration as time served on any sentence imposed.  You have also spent a further period in remand custody from 9 September 2014 to the present date for further charges to be heard at the Broadmeadows Magistrates' Court on 28 May this year.  The overlapping period for when you have been in double remand can also be taken into account in reduction, in a broad way, by having regard to time spent in custody in what the law refers to as “lost time”.    

46This was serious criminal conduct.  This type of blackmail involving standover tactics threatening people for payment is to be sternly denounced by the courts.  General deterrence is an important sentencing consideration.  You have a history of offending and have breached a number of opportunities involving reformative dispositions.  There are prior convictions for violence and you were last convicted of assault in 2012, just over 12 months prior to this offending.

47On the occasion of this offending you were accompanied by another unknown offender and the circumstances included you producing, and making an implied threat with, a pistol on the first occasion and arriving at the scene of a subsequent meeting armed with a loaded pistol.  It was a planned and considered action and extended in its execution.  It would have been terrifying for the victim and was intended to be so.

48In view of your continuing offending history and the context of this offending, specific deterrence must also be regarded as important.  The fact that you were carrying a firearm whilst a prohibited person, and the nature of that weapon being an easily concealed pistol, adds further context to the offending.  The fact that on the second occasion the pistol was loaded and ready to fire with one round in the chamber and five rounds in the magazine is, in my view, an aggravating feature.

49Your counsel submitted that a Community Correction Order remains an appropriate sentencing option considering the recent changes to the Sentencing Act and the recent guidelines set out by the Court of Appeal in the case of Boulton & Ors v The Queen[1].

[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

50The prosecution's primary submission is that a sentence of imprisonment with a minimum term before eligibility for parole is required, however concedes that a tailored sentence with imprisonment together with a suitably conditioned Community Correction Order would not be outside sentencing discretion.

51Ordinarily, an offender in these circumstances and with your background should expect a sentence to an immediate term of imprisonment and for a significant period.  In the recently changed landscape of sentencing law however, even in cases of objectively grave conduct, a court may conclude that some or all of the punitive, deterrent and denunciatory purposes of sentencing can be sufficiently achieved with conditions within a Community Correction Order tailored to an offender's circumstances and the causes of offending, directed at the rehabilitative purposes.  Boulton emphasises that sentencing courts need to rethink the conventional wisdom about whether imprisonment is the only option. 

52I have given close attention and consideration to the principles expressed in the decision of Boulton and further expressions of the Court of Appeal referring to Boulton in subsequent decisions including McAleer[2], Sherritt[3], Cole[4] and Marocchini[5].  I have given careful attention to :

a)    the purposes for which sentence is to be imposed; and

b)    whether those purposes can be achieved by a Community Correction Order to which one or more of the specified (onerous) conditions may be attached.

[2]  McAleer v The Queen [2015] VSCA 4

[3] Sherritt v The Queen [2015] VSCA 1

[4] Cole  (a Pseudonym) v The Queen [2015] VSCA 44

[5] Marocchini v The Queen [2015] VSCA 29

53I have also considered that given that a Community Correction Order could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, whether there is any feature of the offences, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option.  

54I have also considered the Community Corrections suitability report which as assessed you as suitable should I so order.

55In my view, the objective seriousness of this offending in particular, together with your extensive criminal record, the nature of the offences for which you have been previously convicted - including robbery and intentionally cause injury in 2007 and the further assault in 2012 - the various breaches of previous non-custodial orders and the absence of any apparent psychological condition or personality disorder that might otherwise reduce your moral culpability, combine to such an extent as to require that imprisonment, which more directly emphasises retribution and deterrence, is the only option.

56In determining the sentence to be imposed weight must still obviously apply, and I have applied it, to the mitigating circumstances to which I have already referred.

57On Charge 1 of blackmail, you are convicted and sentenced to 24 months' imprisonment. 

58On Charge 2 of carrying or possessing a firearm whilst prohibited, you are convicted and sentenced to 4 months' imprisonment. 

59On Charge 3 of carrying or possessing a firearm whilst prohibited, you are convicted and sentenced to 6 months' imprisonment. 

60Charge 1 is the base sentence.  I direct that 1 month of the sentence imposed on Charge 2 and 2 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and upon each other.

61The total effective sentence is 27 months' imprisonment. 

62I direct that you serve a minimum period of 18 months' imprisonment before being eligible for parole. 

63Pursuant to s.18(4) of the Sentencing Act, I declare that a period of 85 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

64Pursuant to s.6AAA of the Sentencing Act, but for you plea of guilty, the total effective sentence I would otherwise have imposed is three and a half years' imprisonment with a minimum period of 27 months to serve before being eligible for parole.

65In the plea hearing, the prosecution sought forfeiture orders for the items seized by police.  You have consented to the making of those orders, which I have done today.  Are there any other matters from either counsel?

66MS GUESDON:  No, Your Honour.

67MR KENNY:  No, Your Honour.  May it please the court.

68HIS HONOUR:  Thank you.

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