Director of Public Prosecutions v Camurtay
[2019] VCC 1465
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00970
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CIHAN CAMURTAY |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2019 | |
DATE OF SENTENCE: | 6 September 2019 | |
CASE MAY BE CITED AS: | DPP v Camurtay | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1465 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trial – Sentence – Rape – Sexual assault
Legislation Cited: Mental Health Act 2014
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment; 421 days pre-sentence detention.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. McLoughlin | Victoria Legal Aid |
HIS HONOUR:
1 Cihan Camurtay, on 3 July 2018 you were arraigned before a jury and pleaded not guilty to Indictment G13123618 containing two charges, being Charge 1, rape, and Charge 2, sexual assault. On 12 July 2018, a jury found you guilty on each charge.
2 At the conclusion of the trial, you were remanded in custody for plea on 14 September 2018 and I ordered a psychiatric report in respect of you. Ultimately your plea was not heard until 16 August 2019. The reasons for this delay are manifold. On arrival at the Melbourne Assessment Prison you displayed disturbed behaviour. On 28 August 2018, you were transferred to the Acute Psychiatric Unit at Ravenhall Correctional Centre. Accordingly, your plea hearing was administratively adjourned to 23 November 2018. On 8 November 2018, you were admitted to the Thomas Embling Hospital as a security patient under the Mental Health Act 2014.
3 By 19 February 2019, you were receiving antidepressants and a number of sedating and/or anti-psychotic medications, including depot medication. On 21 February 2019, you were transferred to Ravenhall Correctional Centre. On 8 March 2019, a report from Forensicare in respect to your psychiatric health was received by the Court in which Dr Jacqueline Rakov opined that she could find no evidence of psychiatric illness that would explain your offending and that she had no psychiatric diagnosis to apply. In addition, representatives of Victoria Legal Aid were unable to obtain instructions from you from time to time because you refused to speak to them until the medication which you had been prescribed had taken effect and you became more compliant.
4 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening. Your victim, Ronda Hammond,[1] was aged 55 years at the time of your offending. Ms Hammond lived in an apartment in the Melbourne Central Business District (CBD). For about five or six months prior to your offending, a friend of Ms Hammond, Sally Deakin,[2] was living with Ms Hammond at her apartment.
[1] A pseudonym.
[2] A pseudonym.
5 Ronda Hammond was in a monogamous relationship with her partner, Paul Allen.[3] Although they lived separately, Mr Allen stayed over at Ms Hammond’s apartment perhaps one to two nights each week. Paul Allen had a key to Ms Hammond’s apartment.
[3] A pseudonym.
6 About six weeks prior to your offending Sally Deakin had commenced a casual sexual relationship with you.
7 On 9 November 2016, after a day’s work, Ms Hammond attended at a hotel in the CBD and enjoyed a few drinks with work colleagues. She left the hotel at about 10.00pm, having consumed six glasses of wine. She left the hotel with a work colleague and arrived at her apartment at about 10.30pm to find her housemate, Ms Deakin, present together with one of her friends, Danielle Catajar.[4] The four friends sat in the living area of the apartment drinking alcohol and eating cheese. After about half an hour, Ms Catajar left the apartment.
[4] A pseudonym.
8 At about 11.00pm you called Sally Deakin on her mobile phone. You arranged to attend at the apartment. Ms Deakin spoke to Ms Hammond who consented to you attending at her apartment. At or about midnight, you arrived at the apartment and you were let into the secure parking area by Ms Deakin.
9 On arriving at the apartment, you ate and drank with both women until Ms Hammond went to bed at about 1.00am. You remained in the living room with Ms Deakin until you went to bed with her and engaged in consensual intercourse, after which you both fell asleep.
10 At about 4.00am, Ms Hammond awoke with you sucking on her left ear. She rolled over in bed and you began sucking on her left breast (Charge 2). She initially thought it was her partner, Mr Allen, who was working nightshift and she said, “Hey babe, what are you doing? Have you knocked off?”
11 Ms Hammond touched your chest, which was hairy unlike that of her partner. She moved her hands across your head and noticed that there was hair on your head in contrast to her partner who had a shaved head. By this time the complainant was fully awake and almost at the same time, you inserted your penis into her vagina and thrust your penis into her vagina three or four times causing pain to her vagina. Upon realising that it was not her partner, she pushed against you and said, “Who are you?” As soon as this was said, you got up and left her bedroom (Charge 1).
12 Ms Hammond stayed in her bed for a few moments trying to process what had just happened to her. She got out of bed and approached the door to Ms Deakin’s bedroom and called out to her. However, Ms Deakin was asleep and did not rouse. You were lying in the bed next to Ms Deakin and sat up when Ms Hammond called out Ms Deakin’s name. You stared at Ms Hammond but did not say anything. Ms Hammond immediately returned to her bedroom and called her partner and told him that she had been assaulted. Mr Allen told her to call “000” and told her that he was on his way.
13 You got out of Ms Deakin’s bed and got dressed. You woke Ms Deakin and told her that you needed to leave immediately. Ms Deakin put on a dressing gown and using her swipe card facilitated you to leave the building.
14 Ms Deakin returned to the apartment and Ms Hammond approached her and told her, “He raped me.” Ms Deakin immediately called you and asked you what you had done. You replied, “It’s not what you think.” Ms Deakin ended the phone call with you and then called “000”.
15 Police attended at the apartment sometime after 4.30am. Ms Hammond was taken to the Royal Women’s Hospital for a forensic procedure at about 9.00am.
16 At about 5.30pm that same day, a search warrant was executed at your home and at 7.50pm you were interviewed under caution with the assistance of a Turkish interpreter and you made a “no comment” record of interview.
17 Tendered as Exhibit B were the Victim Impact Statements of Ms Hammond and Ms Deakin. It is not possible in these reasons to summarise the contents of each document and do the authors justice. However, to quote but a few passages from each statement, may give some insight into the profound effect your offending has had on each woman.
18 From Ms Hammond’s statement:
·“Emotionally, I'm retarded and continually at war with myself, frustrated I can't get on with my life to be the person I was.”
·“The ripple effect of this event that has cascaded down on my family, friend's colleagues and networks is immeasurable.”
·“Things have been said and done I would never in a million years historically ever said or even thought of to my partner or family that are unforgivable.”
·“I have found my relationship and exchanges with men has changed, including my current partner, where despite my complete trust in him, I often feel threatened when he stands close to me or leans over me. This is magnified if I am around men either at home or at work and that is a massive problem for me and affects my capacity to network effectively to improve my work opportunities and earn an income.”
·“Soon after the event I was made redundant and began to be managed out of my employment. I was not well enough to apply, let alone interview for jobs, so I was at the mercy of the HR system - very, very unkind - and highly pressurised. I was viewed as high-risk and, because the legal process was so long, an ongoing liability.”
·“I cried when interviewed, and over time found myself having to tell more and more people about the event to explain myself to the merry go round of managers, HR people and colleagues. It was humiliating, unhealthy, disrespectful, and victimised me time after time, till I got to the point where I was numb to it all. I was either avoided or patronised once it was made public at work.”
·“My home is now the crime site, and not a day goes past where it is not in my face. … In an effort to adjust my comfort levels, I've knocked out walls and got rid of the spare bedroom ...NO one will ever stay with me again ... that part of my generosity of spirit is over. The cost has been significant, … “ [sic]
19 I could go on and deal with the physical and psychological ramifications of your conduct on Ms Hammond, but only a complete reading of her Victim Impact Statement would do justice and explain the profound effect that your conduct has had and will continue to have on her.
20 In respect to Ms Deakin’s statement:
· “When I was informed by Ronda on the morning of the attack that she had been raped by Cihan, I was in complete shock and instantly felt sick to the core of my stomach. Once police arrived to the apartment, I remember and overwhelming feel of wanting to jump over the balcony, the only thing that stopped me was that I had to be there for Ronda. The lady that had taken me into her home trusted me empowered me and continuously encouraged me to be best person I could be. She had been raped by a man I allowed into her home.” [sic]
21 Ms Deakin left Melbourne and returned home to deal with the effects of your conduct on her friend and herself. Ms Deakin lives with oppressive feelings of guilt because it was she who let you into her friend’s apartment and further, she left her friend in Melbourne when she feels that she should have remained to support her. Both women feel that their friendship is no longer what it was and this is a direct result of your offending.
22 Tendered as Exhibit 1 were a bundle of defence materials that included:
·Defence submission for plea;
·Defence chronology;
·Report of Dr Pandurangi, psychiatrist, dated 13 August 2019;
·References, including work history, and certificates in respect to qualifications held by you.
23 In respect to the psychiatric report, Dr Pandurangi’s uncontested opinion was:
“I am of the opinion, with a degree of medical certainty, given his consistent presentation over the past year, across various assessments, that Mr Camurtay suffers from a paranoid psychotic illness, namely a Delusional Disorder, as set out in the International Classification of Diseases, Tenth Edition (ICD-10).”
24 Dr Pandurangi described your delusional disorder in the following terms:
“He gradually develops an incorrigible delusional belief that there is a Police conspiracy against him, which then spreads to other aspects of the criminal justice system, including legal representatives and the Courts.”
25 Finally Dr Pandurangi opined:
“The onset of the illness is usually late in life, and is related to a reality-based stressor, which is personal to a particular individual.”
26 Accordingly, I am satisfied that imprisonment will weigh more heavily on you than it would on a person of normal health.
27 By reference to the defence chronology, you committed the instant offences on 10 November 2016. After a number of committal mentions, your committal took place on 18 May 2017. Thereafter a number of direction hearings took place in this Court until your first trial commenced before his Honour Judge Trapnell on 16 April 2018. That trial aborted, owing to the prosecution becoming aware that a sample, subject to DNA analysis, had been contaminated in the laboratory at the Victorian Forensic Science Centre. Ultimately, you will be sentenced for your offending on 6 September 2019, nearly three years after the commission of your crimes. It is clear from letters from your referees that this time has weighed heavily on you, and I must take it into account in arriving at an appropriate sentence in your case.
28 As at the date of your plea, you had spent 406 days in custody by way of pre‑sentence detention. In addition, on 29 March 2018, you were taken into Immigration Detention and remained there until 12 July 2018, and I must take this into account when arriving at an appropriately fair sentence.
29 As to your background, you were born in Mersin, Turkey, a city on the south-east coast of Turkey. Your parents are ethnically Kurdish and left Kurdistan to escape persecution before you were born. Your father was employed in the tax department and is now retired and your mother was always a homemaker. You have a sister who is three years older than you and works as a teacher.
30 You attended a vocational high school and completed a diploma in electrics. From 2001 until 2012, you studied at Mersin University in electrical technology, worked as an electrician for a local company, as well as in construction, until February 2013. You recommenced study in computer engineering at Ahmet Yesevi University in Ankara, whilst working part time as a website builder. This tertiary study was completed on-line. You were awarded a diploma from Ahmet Yesevi University in computer engineering in 2012. Subsequently you underwent 5 ½ months’ compulsory military service, and it was put to me that during this period of time you experienced significant discrimination because of your Kurdish ethnicity.
31 In November 2014, you came to Australia on a student visa and immediately made application for a refugee visa because of fears arising from your political activity which commenced when you were a student at the Mersin University in 2001. On the basis of your application for a refugee visa, you were granted a bridging visa.
32 From mid-2015, you were employed by Energy Forward Electrical Services as an electrician’s trade assistant but this employment ended in November 2015. In March 2016, you applied for recognition of your trade qualification and in November 2016 passed the exam for an electrician.
33 Your offending was inexplicably opportunistic, your offending against your victim commenced when she was asleep in her bed and represents a serious example of the crime of rape. As a guest, you raped your victim in her own home. There is a dangerous quality that pervades your conduct.
34 You stood your trial and have demonstrated no remorse for your conduct. However, you have no prior convictions and you were otherwise of good character prior to your offending conduct.
35 It was conceded on your behalf that the impact of your conduct on Ronda Hammond was substantial and the impact on Ms Deakin was a relevant sentencing consideration.
36 Mr McLoughlin, Senior Public Defender, submitted that mitigating weight should be given to:
(1)Your isolation in custody;
(2)The practical certainty of your deportation at the end of your sentence and the likely adverse consequences of that;
(3)Your loss of opportunity to settle in Australia as you had hoped; and,
(4)Generally, the principles of Verdins operate in your favour.
37 As to the issue of isolation in prison, Mr McLoughlin informed me that you had been visited in prison whilst on remand and that you have had telephone contact with your parents in Turkey. Further, during the trial before me you demonstrated that you were very close to fluent in the English language. While your time in prison will not be easy, you will be isolated as many who are sentenced to a terms of imprisonment.
38 In my opinion, the sentencing principles of both specific and general deterrence should be moderated to some extent because of the nature and severity of the symptoms which you exhibit presently. Further, your time in prison will weigh more heavily on you than it would on a person in normal health. Additionally, while in prison, your delusional beliefs will continue, but whether this will have a significant adverse effect upon your mental health at this time is uncertain.
Will you please stand.
39 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedence, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
40 On Charge 1, 12 months’ imprisonment. And on Charge 2, 6 years’ imprisonment.
41 This results in a total effective sentence of 6 years’ imprisonment and I affix a period of 4 years’ imprisonment before you will become eligible for parole. I declare that you have spent 421 days by way of presentence detention, not including today.
You may be seated.
42 Are there any other matters, Mr McKenry?
43 MR McKENRY: Just the charge numbering, Your Honour. Can I confirm that Charge 1 was the rape charge? I think Your Honour imposed a 12 month sentence on that.
44 HIS HONOUR: Just pass the note?
45 MR McKENRY: It’s possible Your Honour meant the other way around.
46 HIS HONOUR: I beg your pardon. The sentence will need to be corrected and I’ll correct it in the following way.
47 I sentence you as follows. In respect of Charge 1, 6 years’ imprisonment. In respect of Charge 2, 12 months’ imprisonment. This results in a total effective sentence of 6 years’ imprisonment and I fix a period of 4 years’ imprisonment before you be eligible for parole.
48 Mr Camurtay, you are sentenced to 6 years’ imprisonment. And you will be required to spend 4 years in imprisonment before you will be eligible for parole. You have already spent some 421 days in custody.
49 MR McKENRY: As Your Honour pleases.
50 HIS HONOUR: Are there any other matters?
51 COUNSEL: No, Your Honour.
52 HIS HONOUR: Thank you very much for that, Mr McKenry. You may remove the prisoner, please.
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