Director of Public Prosecutions v Cansiz
[2024] VCC 1137
•26 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00748
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FARUK CANSIZ |
---
JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2024 |
DATE OF SENTENCE: | 26 July 2024 |
CASE MAY BE CITED AS: | DPP v Cansiz |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1137 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - Sentencing
Catchwords: Plea of guilty – Robbery – Co-accused – Degree of involvement – Parity - Traumatic brain injury – Substance use – Cognitive impairment – Moral culpability – Verdins
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] VSCA 62
Sentence:Term of imprisonment of 88 days, combined with a community corrections order of eight months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Tan | Office of Public Prosecutions |
For the Accused | Mr R. Bhattacharya | Emma Turnball Lawyers |
HER HONOUR:
1You have pleaded guilty to one charge of robbery and the full circumstances of your offending are outlined in the prosecution opening of 15 February 2024 (Exhibit A) and as amended in court today. That constitutes the factual basis upon which I sentence you.
Circumstances of offending
2At the time of your offending, you were 41 years of age. There are two
co-accused who were involved in the incident: Ashri Saeed and William Le. Mr Le was sentenced by this court on 13 March 2024 and Mr Saeed's matter is outstanding.3The prosecution summary contains the background to the offending including reference to an alleged incident on 12 November 2022. It is not suggested that you were in any way involved in that incident at present, it is only of some relevance to the broad contextual lead-up to the offending as it relates to
Mr Saeed and the complainant in this matter, Mr Patroungas.4On Monday 14 November 2022, the date of your offending at approximately 4.25 pm, Mr Patroungas was in the vicinity of Victoria Street and Lennox Street in Richmond. Mr Le and Mr Saeed were also in the vicinity. Mr Saeed saw Mr Patroungas and approached him, put his left arm around his shoulder, brandished a knife in his right hand and said 'come around the corner or I'm going to get a fucking hole in you, put a fucking hole in you'. Mr Saeed escorted Mr Patroungas into Lennox Street, threatening him by brandishing the knife. Whilst this took place Mr Le also appeared and caught up with Mr Saeed and Mr Patroungas and walked alongside them along Lennox Street.
5As Mr Le and Mr Saeed were escorting Mr Patroungas along Lennox Street you came from the other direction on an electric scooter and joined the group. Mr Le and Mr Sayed continued to escort Mr Patroungas along Lennox Street whilst you followed behind them, and into an unnamed laneway opposite Little Butler Street in Richmond. Throughout this process, Mr Saeed kept the knife in his hand, holding it towards Mr Patroungas.
6Mr Saeed said 'you're a fucking dog, you guys called the cops the other day. Give me everything you've got' and Mr Le said, 'hand everything over'. Mr Le then moved behind Mr Patroungas and placed him in a chokehold. Mr Saeed used the knife to cut the straps of Mr Patroungas' black Adidas shoulder bag. Whilst in the process of cutting off Mr Patroungas' bag, Mr Saeed caused lacerations to Mr Patroungas' chest and hands. While this was taking place, you walked out to Lennox Street and down the street before returning to assist Mr Le and Mr Saeed, by pushing Mr Patroungas further into the alleyway, away from the main street.
7Eventually Mr Saeed cut the bag loose from Mr Patroungas, which contained various belongings as outlined in the opening; took it and passed it to you. You, along with Mr Le and Mr Saeed, then started walking south on Lennox Street and Mr Patroungas followed you for a short time as he wanted to get his belongings back, until Mr Saeed threatened him.
8Police were in the vicinity at the time, observed the three of you travelling through the parkland at the rear of Williams Court. They observed Mr Saeed and Mr Le to be on foot, you to be on an electric scooter.
9Mr Patroungas flagged down the police vehicle, told them that he had just been robbed by three males and pointed in the direction of yourself, Mr Saeed and Mr Le. Mr Le was arrested that day, but you and Mr Saeed managed to avoid apprehension.
10Upon later reviewing CCTV footage of the incident police identified you and you were arrested on 15 November. Mr Saeed was also later arrested that day.
Gravity of offending
11Now, Mr Cansiz, the charge of robbery is a serious offence, as reflected in the maximum penalty. As I referred to in the sentence of your co-accused, there are other features of this offending which do make it serious, including you were in company at the time, the offending occurred in public, you were an active participant in what occurred, the footage capturing part of the offending was previously played during an earlier hearing of this matter.
12I do however accept that out of the three of you, you were the least involved and you certainly did not instigate the offending. There is no suggestion that your offending was pre-planned nor was it protracted. Also in your case, similar to Mr Le, the prosecution accept that you were not aware and/or complicit in Mr Saeed's use or possession of the knife or in the injuries inflicted, and you are not to be sentenced in respect of those matters or on that basis.
13You have 88 days of pre-sentence detention on this matter as confirmed today.
Plea of guilty
14You entered a plea of guilty after accepting the sentence indication and you were arraigned on 12 June 2024, this year.
15While your plea was not entered at the earliest opportunity, it does entitle you to an important sentencing discount. Your plea represents an acceptance of responsibility and a willingness to facilitate the course of justice and carries significant utilitarian value.
16Both prosecution and counsel on the plea hearing relied also on their earlier submissions, oral and in writing, that were advanced in the sentence indication hearing. I have also taken those matters into account.
17Your circumstances are canvased in detail in the neuropsychological report of Dr Taylor Jenkin of 10 July 2024.
18You are now 42 years of age and are from a Turkish background and grew up with your parents and two siblings. You report having a good relationship with your family.
19You did well academically but were expelled at the end of Year 8 after a fight. Upon being expelled you focused on your fitness and training and commenced a diesel mechanic apprenticeship. You did not complete this apprenticeship as at the young age of 18 you experienced a life-changing event, sustaining a traumatic brain injury in a motor vehicle accident. This has severely restricted your employment options, and you have previously also been supported on the Disability Support Pension.
20You underwent a neuropsychological assessment approximately 12 months post injury which noted 'a reduced rate of information processing and slow task execution' along with 'borderline to impaired range with poor ability in organising and structuring material'. When speaking to Dr Jenkin you could not recall if you had completed any further neurological or neuropsychological assessments.
21Following your injury, you report experiencing chronic pain and becoming dependent on opiates for pain management. You also report ongoing heroin use.
22In recent times your relationship has ended, and you live alone in an apartment in Richmond.
23You have previously been prescribed Risperidone, but currently as I understand it, do not take any medications. Is that right?
24You have a relevant and extensive prior criminal history including for dishonesty offending and armed robbery, and robbery.
Neuropsychological assessment
25Dr Jenkin assessed you over the course of three sessions, each approximately 3-4 hours long. After formal testing and a thorough evaluation, Dr Jenkin confirms that you have suffered a moderate to severe traumatic brain injury and that the cognitive impairments are permanent and ongoing. She estimates your full-scale IQ as 75, described as 'very low compared to similar-aged peers'. She summarises the impact of your impairments as follows (at [56]):
Mr Cansiz' cognitive impairments likely substantially impact his daily functioning. His reduced speed of information processing impacts his ability to process and keep up with information and likely significantly impacts his ability to process information and engage in more complex environments. This difficulty with processing information in combination with impaired verbal memory likely impacts his ability to process and remember verbal information in his daily life.
His difficulties with disinhibition and self-monitoring may also impact his ability to think through decisions in the real world, and in combination with his reduced speed of information processing, may impact his ability to process information and consider potential consequences of his actions in the moment.
26She opines that these conditions were present at the time of the offending. She states it is unclear if you had used drugs at the time, but if you had, it would have further impacted your cognitive and mental state.
27In terms of your mental health, Dr Jenkin suggests that you experience symptoms of anxiety and depression, consistent also with past reports. She notes however that further mental health and personality assessment was beyond the scope of her current assessment.
28I do accept the submission of your counsel that the Verdins principles are enlivened in your case.[1] I accept that your moral culpability is reduced, particularly taking into account in consideration of the nature of this type of offending and your involvement. I also accept that there is a need to sensibly moderate the weight to be given to general and specific deterrence.
[1] R v Verdins [2007] VSCA 62.
29It is clear that drug use has been an issue in your life and no doubt has generally compromised your functioning. Independent of this, I do accept that you have a permanent traumatic brain injury which makes you more susceptible to poor choices and 'not thinking through decisions due to reduced speed of information processing'.
30Dr Jenkin also states additionally your lateral thinking style may impede your ability to think through the potential consequences and impacts of your actions on yourself and others. She states (at [59]):
Mr Cansiz also demonstrated behavioural signs of executive dysfunction including a degree of disinhibition and poor self-monitoring.
31Also, I accept, based on the report of Dr Jenkin and in particular her opinions expressed at paragraph 60, that limb 5 of Verdins is invoked and that a term of imprisonment would likely weigh more heavily on you because of your cognitive impairments and mental health issues.[2]
[2] Ibid, [60].
Prospects of rehabilitation
32As I have already noted, you have a relevant and extensive prior criminal history including for breaching court orders and you were on a community corrections order at the time of this offending. You also present with cognitive challenges and ongoing drug issues. Your rehabilitative prospects will be enhanced by engaging in treatment and support. Dr Jenkin, in her report, provides some helpful recommendations. She recommends that you be supported to submit an NDIS application. Mr Cansiz, have you made an application yet for NDIS?
33OFFENDER: (Indistinct words) my workers are helping me with it.
34HER HONOUR: They're helping you? Okay. Dr Jenkin suggest that you should do that, okay. It would entitle you to more services and resources and that's over a number of different aspects that they can help you with, in terms of living day to day. So, I encourage you to do that, as does Dr Jenkin.
35She also suggests that you engage in cognitive rehabilitation focusing on trying to compensate for your difficulties, rather than improve them. She recommends you engage with a pain specialist, given that this is likely underpinning your opiate use, along with mental health treatment. At page 15 of her report, she offers further practical suggestions and strategies. Her report will be a useful guide for those working with you. Dr Jenkin concludes positively that (at [63]):
With treatment to support Mr Cansiz in managing his cognitive impairments, it is expected that he would demonstrate improvements in his daily functioning.
36While you suffer from a range of impairments, your functioning and circumstances are capable of improving. I also take into account as submitted that you continue to have family support and also that you have made attempts to engage with a methadone program in the past.
Sentencing purposes
37The purposes for which sentences may be imposed are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I have already canvased some of these principles in considering the application of the Verdins principles that, as I have indicated, I accept. These broad sentencing principles are still relevant, and I do consider that community protection remains an important factor, particularly given your extensive and relevant criminal history.
38I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant in your case. I have considered the general landscape for sentencing on the charge of robbery. I also take into account the principles of parsimony, proportionality and parity.
39The prosecution accept that your case is more akin to that of Mr Le, in that you were the lesser offender. However, it is submitted that Mr Le was younger and with a less extensive criminal history.
40The parity principle requires that there be consistency in the sentences imposed on co-offenders unless there are such differences in their role in the offending, or their personal circumstances, that warrant disparity in their sentences. Weighing up all matters I consider that your case is broadly similar to Mr Le's, but that there are some factors warranting a degree of differentiation in your favour. Mr Le was considerably younger than you and I accept his history is not as extensive as yours however, of importance in your case is that you have a lesser involvement in the offending, you also face fewer charges than Mr Le, and you have cognitive impairments that are relevant to the sentencing synthesis.
41The prosecution submit that a combination sentence is open.
42Your Counsel submits that in all the circumstances a straight sentence, effectively of time served, can adequately punish this offending. In the alternative a combination sentence, he submits, is appropriate.
43At the sentence indication, I indicated to you that on a plea of guilty I would likely impose a combination sentence and one that did not see you return to custody. I had you assessed for a community corrections order, and you were assessed as unsuitable. There are a number of matters that understandably concern the assessor, including your presentation at the time and your history of non-compliance on orders.
44In all the circumstances, particularly with the benefit of Dr Jenkin's report and recommendations, while I take into account the position of Corrections, I consider that a combination sentence is the just and appropriate sentence in your case. In other words, I have concluded that the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing can be sufficiently achieved by a short term of imprisonment, coupled with an appropriately fashioned community corrections order.
Sentence
45If you could please stand, Mr Cansiz.
46Synthesising all matters I am convicting you and sentencing you as follows.
47On Charge 1, being the robbery charge, you are convicted and sentenced to 88 days' imprisonment combined with a community corrections order of eight months.
48The conditions of that order are:
·That you attend and that you be supervised by Corrections.
·That you undertake treatment and rehabilitation for mental health.
·Treatment and rehabilitation for drugs; and
·Treatment and rehabilitation for programs designed to reduce reoffending.
49Pursuant to s18 of the Sentencing Act, I declare that you have served 88 days as pre-sentence detention.
50Pursuant to s6AAA, I would have sentenced you, had you not entered a plea of guilty, to a combination sentence of some six months' imprisonment with a community corrections order.
51Now you can take a seat. Take a seat. Ultimately, Mr Cansiz, what I have done, it is going to be printed now, is I have given you the time that you have served and I have imposed a corrections order. It is for a period of eight months, okay. I have moderated it, taking into account the factors that have been put on your behalf, okay. It is a therapeutic order. It is an order that is a punishment, because it operates every day, okay and you have to comply with it. Do you understand? Are you capable of doing that?
52OFFENDER: I am.
53HER HONOUR: All right. They can assist you as well. Does anybody have an opposition to Dr Jenkin's report being provided to Corrections?
54COUNSEL: No, Your Honour.
55HER HONOUR: All right, they will have that report which is really useful and hopefully you can try and get some interventions and structures in your life. You have had opportunities in the past, Mr Cansiz, you really have to seize this, make the most of it and appreciate in your mind that it is a punishment and it operates every day.
56You will breach this order: (1), if you do not comply with it; or (2), if you commit another offence punishable by imprisonment within that eight month period. Okay, you understand? There are other conditions that apply that you are familiar with, but they will be on that document that is about to be printed out. Is the closest Corrections Office Collingwood, for you, is that the closest one?
57OFFENDER: Yes.
58HER HONOUR: Collingwood. That's where you've gone before.
59OFFENDER: Yes, yeah NJC, yeah.
60HER HONOUR: Okay. All right, NJC Collingwood, that will be the Corrections Office, and you are required to report within two working days from today, okay. You might want to attend this afternoon and get yourself sorted out, okay, but you have got two working days to do that. Do you understand?
61OFFENDER: (Indistinct words).
62HER HONOUR: All right, we are going to have that order printed out just in a moment and your counsel will approach you, and he can go through the conditions, and you can sign it to indicate that you are consenting to it.
63Counsel, was there anything further? There are no ancillary orders, is that right?
64MR TAN: Yes, Your Honour.
65HER HONOUR: The PSD has been declared, 6AAA, nothing else?
66MR TAN: No, Your Honour.
67MR BHATTACHARYA: No, Your Honour.
68HER HONOUR: All right. We'll just give my associate a moment and that can be done now.
69Mr Bhattacharya, would you just like to approach Mr Cansiz and go through the conditions.
70MR BHATTACHARYA: Yes, thank you, Your Honour.
71HER HONOUR: Check it. We'll have a copy to you as well, Mr Tan, just so that you can check the order reflects what I've proposed.
72MR TAN: Yes, Your Honour.
73HER HONOUR: I will sign that. That will be provided and sent to counsel.
74Mr Cansiz, just stand please. You will be given a copy of that signed order, okay. Before you leave this court room you will be provided with that and you understand clearly what the conditions are, okay? All right.
75Counsel, thank you for your assistance and we will adjourn.
‑ ‑ ‑
0