Director of Public Prosecutions v Cetin
[2022] VCC 1537
•6 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00732
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEZGIN CETIN |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2022 | |
DATE OF SENTENCE: | 6 September 2022 | |
CASE MAY BE CITED AS: | DPP v CETIN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1537 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Burglary – Aggravated carjacking – False imprisonment – Poor prospects of rehabilitation – Substance use disorder – Mental health – High risk of re-offending.
Legislation Cited: Sentencing Act 1991 ss; 5; 5(2G); 6AAA; 10AD; 18; 89(4).
Cases Cited:Mammoliti v The Queen [2020] VSCA 52; R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 3 years and 10 months. Non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. McAuliffe for Plea Ms N. McGregor for Sentence | Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Simon English Solicitors |
HER HONOUR:
1Sezgin Cetin, you have pleaded guilty to one charge of burglary, one charge of aggravated carjacking, and one charge of false imprisonment. You have also agreed to this Court hearing, and have pleaded guilty to one summary charge of unlawful assault, and one summary charge of possession of a controlled weapon.
2The maximum sentences for these charges are as follows:
(a) Burglary – 10 years’ imprisonment.
(b) Aggravated carjacking – 25 years’ imprisonment.
(c) False imprisonment – 10 years’ imprisonment.
(d) Unlawful assault – 15 penalty units or 3 months’ imprisonment.
(e) Possession of a controlled weapon – 120 penalty units or 1 year imprisonment.
Circumstances of the offending
3The full circumstances of your offending are outlined in the Prosecution Opening of 11 August 2022, marked as Exhibit A.
4In summary, at around 8:24am on 27 January 2022, CCTV footage depicts you at the Broadmeadows Shopping Centre carpark. You were wearing a baseball cap and carrying a blue backpack. At 8.36am you are depicted entering the shopping centre. Your jacket hood is up over the top of your baseball cap and you’re wearing a face mask. You walked to the ‘Goodtime Repairs’ kiosk and jumped over the counter door. You were seen on CCTV footage concealing yourself under red covers within the kiosk for a short period of time. There, you opened the locked cabinets and stole numerous watches and related items. You were present in the kiosk for about 13 minutes and were depicted moving between cabinets at this time (Charge 1 – Burglary).
5Mr Dogan was a worker at “Onyx N Things” located at a kiosk in the Broadmeadows Shopping Centre. He entered the shopping centre and as he walked past the “Goodtime Repairs” kiosk he saw that someone was at the kiosk. Initially he thought it was the owner and stopped to say hello. Then he saw you, a man he did not recognise. Mr Dogan said something like, “What are you doing in there?” and told you that he was going to call security. You then said something like, “Call if you want”.
6Mr Dogan told you to stay put. You then grabbed a yellow handled screwdriver off the floor and threatened to stab Mr Dogan. Mr Dogan did not want to get stabbed and moved out of the way (Summary Charge 5 – unlawful assault).
7You then jumped over the kiosk door and left the shopping centre.
8Mr Dogan followed you towards the taxi rank and was shouting at the taxi drivers not to let you in. He saw you jump into a taxi which drove out of the rank, did a U-turn and drove onto Pearcedale Parade. Mr Dogan remembers the taxi driver had an expression “like one of dread”.
9Mr Dogan managed to call the shopping centre security for help at about 9:00am.
10You had jumped into the front passenger seat of a taxi cab driven by Mr Uzel (“13Cabs” – registration number 6369M – silver Toyota Camry sedan). The first thing you said to Mr Uzel was something like, “drive, keep driving”. You were holding a large screwdriver (about 30 centimetres long) towards Mr Uzel. You were threatening him with it, holding it with both hands and acting like you would stab Mr Uzel with it.
11Mr Uzel said something like, “It’s ok just calm down” and started driving. You said something like, “Drive, I don’t want to have to hit you”. You were directing Mr Uzel where to go and kept the screwdriver held up like you were ready to use it.
12Mr Uzel had been driving a taxi for nearly 20 years – nothing like this had ever happened to him before. Mr Uzel was afraid and felt like he could not get out of the taxi because you would hurt or stab him.
13Mr Uzel had a camera inside his taxi camera that is always turned on and recording. It is held onto the windshield with tape and films inside the taxi. You pulled the camera off, ripped out the power cable and broke it. You then threw the camera into the passenger footwell.
14You then said something like, “I have to do this to live”. You then put the screwdriver into a bag that you had with you. You started to pull out wrist watches from your bag. You handed Mr Uzel watches and said something like, “shut your mouth I’ll give you these” and “don‘t go to the police”.
15You did not give Mr Uzel an address but told him where to go, street by street. You got out at Midas Court, leaving your cap behind in the taxi, you walked across a park and left.
16Mr Uzel drove directly to a police station and made an immediate complaint.
17At about 2:00pm, you returned to the Broadmeadows Shopping Centre and were observed by a security officer who told you to stop and wait. However, you left and walked quickly towards the northern carpark. You tried to leave on a bus, however security followed you and you got off and police arrived shortly afterwards, cautioning and arresting you. Police located an axe inside your backpack (Summary Charge 6 – Possess a controlled weapon).
18You were taken to the Fawkner Police Station for an interview. However, you were not interviewed because you were deemed to be unfit for an interview by a Forensic Medical Officer.
19I have also been provided with and have considered the various still images that capture a portion of your offending (Exhibit B and 1) along with the CCTV footage, which was played in Court (Exhibit C).
Victim impact
20After the plea hearing and before sentence, Mr Uzel provided a victim impact statement. In that statement he describes what happened as unexpected and shocking. He states:
'Physically I'm not hurt but emotionally I'm traumatised and my family is quite concerned about my wellbeing. I wasn't able to work for five days. Since then, whenever I go to work my wife and kids are worried if something happens to me again'.
21I take into account the impact that your offending has had on Mr Uzel.
Gravity of the offending
22The offence of aggravated carjacking is inherently a serious one. It has a maximum sentence of 25 years. It is a Category 1 offence, attracting the operation of sections 5(2G) and 10AD of the Sentencing Act 1991 (Vic). The Court must impose a term of imprisonment and fix a non-parole period of not less than three years unless the Court finds a special reason exists. In the circumstances, it is not submitted on your behalf that a special reason exists. The maximum sentence and the mandatory minimum indicate the seriousness of the offence and are intended to denounce offenders in the strongest terms and send a message that such conduct will not be tolerated.
23A good portion of your activity is caught on CCTV footage. As earlier noted, I have viewed the still images, including the images of you in the taxi with Mr Uzel, who appears, understandably, frightened at the time.
24The prosecution submit that all of the offences are serious examples and your counsel, Ms Jennifer Clark, submits that each offence falls at the lower end of the available range.
25In relation to the burglary charge, I accept that while it is relatively unsophisticated offending, there was clearly a degree of planning. There was some concealment on your part, though I note that you were easily observed and then later identified. I take into account that this was a burglary on a commercial premise and therefore lacks the aggravating factors that are often associated with burglaries on private residences, such as the invasion of personal privacy and the theft of irreplaceable personal items. In the course of the burglary you threatened the shop assistant, Mr Dogan, by grabbing a screwdriver off the floor and threatening to stab him with it, which is the subject of a separate charge. I accept that this is a serious example of such an offence, given in particular the use of a weapon.
26In relation to the aggravated carjacking and false imprisonment, your Counsel submitted that this conduct quickly unfolded in response to you being challenged and then pursued after the burglary. The still images are consistent with this submission. I accept that you got into the cab, in a panic and in an attempt to leave the scene. I accept that your offending on the aggravated carjacking and the false imprisonment did not involve any premeditation or planning. The weapon used, that is the screwdriver, was the one that you had, only a short time earlier, picked up from within the store. While there is no doubt the victim of the carjacking, Mr Uzel, was put in fear, he was not subjected to any actual force or violence. I accept that the appropriation of the vehicle, and the false imprisonment, was for a relatively short period of time. The precise time could not be ascertained. You then got out and walked off. There was some damage to the vehicle caused by you when you removed the camera which I accept indicates that you were attempting to obscure your identity. Having regard to all the circumstances, I regard your offending in respect of this incident to fall towards the lower to mid-range of seriousness for such offending.
27Your counsel submitted that there should be complete concurrency on the charges of aggravated carjacking and the false imprisonment. It was submitted that there was a complete overlap between the element of appropriation on the aggravated carjacking charge and the conduct constituting the false imprisonment. The appropriation was achieved by you taking control of the vehicle by directing Mr Uzel to drive it and it was ongoing up until when you got out of the vehicle.
28I accept the prosecution submission that the two charges have different elements and are different in important respects. As submitted by Mr McAuliffe, the ongoing threat of force relevant to the false imprisonment follows on after the aggravated carjacking itself is committed. The charge of false imprisonment is directed towards that criminality.
29In sentencing you I am mindful of the principle of totality and of the necessity not to impose double punishment. The offending here arose out of a single incident and there is a very close connection between the charges. I therefore propose to give practical effect to this by ordering substantial concurrency.
30You told psychologist Daria Sizenko that your life in January 2022 was ‘hard’, citing homelessness and heavy drug use. At the time, you had no social or financial support, decided to steal from the watch shop to get money for food and drugs. You attempted to leave the taxi, asking the driver, Mr Uzel, to drive you away as you wanted to escape the people chasing you following the burglary. She considers that your offending occurred within the context of a substance-induced psychotic disorder and your use of heroin and methamphetamine, your non-compliance with anti-psychotic medications and your impoverished and unstable social circumstances.
Plea of guilty
31Your plea of guilty was entered at the first available opportunity, that is at the committal mention stage in the Magistrates’ Court. I accept that your plea of guilty represents an acceptance of responsibility on your part and is indicative of remorse. You described your actions to psychologist Daria Sizenko as ‘stupid’. You wanted to apologise to the people affected and stated ‘I don’t like hurting people or taking their things … I want to apologise. I want to be a good person.’
32I also recognise the utilitarian value of your plea and accept that given it has been entered in the current climate, one still impacted by COVID-19 related delays, it should attract a real and tangible sentencing discount.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
33Your personal circumstances were canvassed by your counsel, Ms Jennifer Clark and are also outlined in the psychological reports tendered on your behalf.
34Briefly, you were born in Turkey in January 1969 and are currently aged 53. You came to Australia with your family when you were a baby.
35You are the second of five children. You have previously described yourself as the ‘black sheep’ of the family and report behavioural difficulties from a young age.
36Growing up your father worked and your mother looked after the children. While you were provided for by your parents, they frequently argued, your father was a heavy drinker and you were often subjected to his physical punishment.
37Your mother passed away approximately ten years ago and your father then returned to Turkey. You’ve not had contact with your father since that time and you continue to grieve the loss of your mother. Your siblings have distanced themselves from your criminal behaviour and you’ve not had contact with them since your 20s.
38You were expelled from school in Year 10 because of your behaviour. Since this time, you have reported a number of short term jobs, before gaining some stable employment as a fork-lift driver. You’ve been unemployed now for over 20 years.
39You first left home at around the age of 16 and returned home for periods living with your parents until your late 20s and early 30s. Over the last 10 years you have had unstable living arrangements, alternating between living with partners and friends and being homeless.
40You have had some previous long-term intimate relationships though they have ended in the context of your escalating drug use and criminal activities. One of those relationships bore you a son, who is now in his 20s. You don’t have contact with him.
41You have an extensive criminal history. You attribute your criminal conduct to either obtaining money to finance your drug use, or as a means of subsistence.
42At the age of 18 you commenced regular amphetamine use. In 2016 you told Dr Forrester that you had been heavily dependent on amphetamines during the majority of your adulthood, spending approximately up to $250 a day on your habit and as experiencing significant withdrawal symptoms when unable to access amphetamines. You have made a number of attempts at detoxification and rehabilitation. You indicate that your longest period of abstinence outside of custody has been some seven months. Unfortunately, you have largely been unsuccessful in your endeavour to rid yourself of drugs.
Prior criminal history
43As I’ve already noted, you have an extensive prior criminal history. Your offending history starts in 1989 and consists mainly of dishonesty, driving and drug-related charges, though you also do have a prior history for violent offending. You have received a variety of dispositions, including a combined custody and treatment order and imprisonment. The longest sentence you appear to have served to date was 17 months, which was part of a sentence imposed in July 2017. You were last in custody some 8 months prior to your current remand.
44As your Counsel described it, your criminal history is reflective of your chronic drug abuse over the years. Your criminal history is relevant to an assessment of your prospects of rehabilitation and also focuses attention on the importance of specific deterrence and community protection as sentencing factors.
Mental health
45You report, perhaps unsurprisingly, that your mental health declined after you started using drugs. You’ve been depressed throughout most of your life, feeling saddened by the direction it has taken. You described yourself to Ms Sizenko as being ‘lost’ and ‘stuck’ in drug use and depression.
46You have been on olanzapine on and off for nine years to manage symptoms of drug-induced psychosis. Typically when you’re in the community you fail to comply with your medication due to homelessness and drug use. It is noted that you were not on your medication at the time of the offending.
47When under the influence of drugs you report experiencing auditory and visual hallucinations and delusions. Dr Forrester noted in her report of 2006 that you were experiencing symptoms consistent with someone who is experiencing a psychotic episode. She stated ‘while it is unclear to what extent these symptoms are drug induced, he reports that they have been present to some degree for the past 17 years.’ You did not report to Ms Sizenko currently experiencing any such hallucinations.
48Based on your history and presentation in interview, Ms Sizenko concludes that you would meet the DSM-V criteria for several Opioid (namely heroin) Use disorders, severe Stimulant (namely methamphetamine) Use Disorder, and Moderate Alcohol Use Disorder, in early remission in a controlled environment. She also opines that your presentation indicates the presence of Major Depressive Disorder.
49While there was no reliance on any principles of Verdins,[2] I take into account both the psychological reports and the opinions concerning your mental health and circumstances.
[2] R v Verdins [2007] VSCA 62.
Rehabilitative prospects
50Your prospects of rehabilitation are, in all the circumstances, assessed as poor. Your prospects will be enhanced if you remain abstinent from drugs and receive appropriate mental health treatment.
51You are now on suboxone and receiving your depot anti-psychotic medication, olanzapine. Your health has consequently stabilised and you are working as a cleaner in custody.
52You are relatively isolated in custody. You don’t receive any calls or visitations and have no close friends or relatives you can rely upon.
53Unsurprisingly Ms Sizenko assesses you as a high risk of reoffending due to your offence history and extensive current struggles with substance use and mental health concerns. Risk is further exacerbated by the absence of protective factors in your case.
54She does offer an opinion though that you present with some insight and that you would benefit from treatment. She also states that you are unlikely to maintain sobriety if your mental health and social well-being are not addressed. She therefore recommends drug and alcohol treatment, alongside mental health counselling. She considers that while you are likely to initially benefit from the structure of the custodial environment it is essential that you are provided with sufficient support for your transition back into the community.
Sentencing considerations
55The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
56I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 where relevant to your case. I have also had regard to the current sentencing practices for aggravated carjacking.
57There was no dispute between the parties in your case that a term of imprisonment is warranted for your offending. As I have already noted, aggravated carjacking is a Category 1 offence. Therefore, the court must impose a term of imprisonment and fix a non-parole period of not less than 3 years unless the court finds a special reason exists. Your Counsel submitted that in weighing up all relevant factors, including the gravity of your offending, the sentence imposed should not exceed the mandatory sentence which the Court must impose.
58I have had regard to a number of cases, including Mammoliti v The Queen [2020] VSCA 52. In that case, the Court observed, ‘by the maximum sentence and the mandatory gaol term to be served for no less than three years, the legislature has made it clear that aggravated carjacking is a serious offence. There is no escaping a relatively long custodial sentence.’ The Court in Mammoliti also accepted a number of general principles including that although the mandatory minimum non-parole period is a yardstick, it is not necessarily reserved only for those cases falling at the lowest extreme of the spectrum and it may still be imposed despite an offenders relevant prior convictions. The discount for a plea of guilty and other mitigatory factors, such as those canvassed in your case, do not cease to apply in cases where there is a statutory minimum term.
59I also take into account the principle of totality. I accept your Counsel’s submissions that each offence can be viewed as a part of one single episode, occurring close in time to each other. In the circumstances, I consider that substantial concurrency is warranted, with some modest cumulation to mark that while it is part of the one episode, the charges, while connected, do represent distinct and separate offending.
Sentence
60Having considered all the matters raised in your case, and weighing the various sentencing considerations, I sentence you as follows –
61Charge 1, burglary, you are convicted and sentenced to 6 months imprisonment.
62Charge 2, aggravated carjacking, you are convicted and sentenced to 3 years and 7 months imprisonment.
63Charge 3, false imprisonment, you are convicted and sentenced to 12 months imprisonment.
64On the summary charge of unlawful assault with weapon you are convicted and sentenced to 21 days imprisonment. On the summary charge of possess weapon, you are convicted and sentenced to 1 month imprisonment.
65Charge 2 is the base sentence and I make the following orders for cumulation: 1 month on charge one and two months on charge 3.
66Therefore the total effective sentence is 3 years and 10 months imprisonment. I set a non-parole period of 3 years imprisonment.
67Pursuant to s.18 I declare you have served 229 days in presentence detention.
68Pursuant to s.6AAA I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 6 years and 4 months imprisonment with a non-parole period of 4 years and 4 months.
69As discussed in Court today, as the aggravated carjacking incorporates a theft of motor vehicle, I consider it incumbent on the Court to suspend or cancel any driver’s licence or permit held by you. Even if it is not mandatory it is certainly appropriate and required in all the circumstances. I propose pursuant to s.89(4) of the Sentencing Act to disqualify you from obtaining a licence or learner permit for a period of 15 months from today’s date.
70I make the disposal order in the terms sought.
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