Director of Public Prosecutions v Cetinkaya

[2022] VCC 1511

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

L12087554.1

CR 21-01154

DIRECTOR OF PUBLIC PROSECUTIONS

v

AKIF CETINKAYA

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2022
DATE OF SENTENCE:	5 September 2022
CASE MAY BE CITED AS:	DPP v Cetinkaya
MEDIUM NEUTRAL CITATION:	[2022] VCC 1511

REASONS FOR SENTENCE

‑‑‑

Subject:  Criminal law - Sentence

Catchwords:      Guilty plea – One rolled-up charge of theft - Prior convictions            for drug offences and for dishonesty offences

Legislation Cited:                  Crimes Act 1958; Sentencing Act 1991

Cases Cited:  Worboyes v The Queen [2021] VSCA 169

Sentence:1 year and 10 months imprisonment with a minimum non-parole period of 1 year and 4 months. S 6AAA: 2 years and 8 months imprisonment with a minimum non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr J. Harkess	Solicitor for the Office of Public Prosecutions
For the Accused	Mr L. Howson	Marshall Jovanovska Ralph Criminal Lawyers

HIS HONOUR: 

1Akif Cetinkaya, you have pleaded guilty to one rolled-up charge of theft for which the maximum penalty is 10 years imprisonment. 

2You were 37 years old at the time of the offending in this case.  The victim is your mother, Baha Cetinkaya.  She was 63 years old at the time of the offending. 

3Your mother had a superannuation account with Australian Super, which by the end of the 2014/2015 financial year had a balance of $123,768.47.  She was the sole account holder and the only person entitled to access the funds in the account. 

4Eligible retirees with Australian Super can access funds in their superannuation accounts through an online portal.  The process to do so involved using a password to gain access to the account and then completing an online benefit payment form which required the member to confirm their identity, confirm their date of birth, confirm their address details, confirm their mobile number and confirm their bank account details, including the nominated bank account into which the funds are to be paid. 

5Once such a form is submitted the benefit payment request is processed.  If the request is approved, an electronic transfer to the nominated account takes place. 

6In this case, between 20 April 2016 and 20 July 2016, you gained access to your mother's superannuation account and stole money from her on five occasions without her knowledge.  You did so by logging into her superannuation account, using the online portal and a username and a password you had somehow obtained from your mother.  You nominated your own personal bank account details into which the funds were to be paid.  You provided your own contact details including your email address and phone number so that your mother would not become aware of what you had done. 

7The particulars of your theft from your mother are as follows:

a)On 20 April 2016 you submitted a withdrawal request for $30,000.  This request was approved and the money was transferred on 27 April 2016 into your bank account.

b)On 11 May 2016 you repeated the same process, again for $30,000.  The request was approved and the money was transferred into your bank account on 13 May 2016.

c)On 9 June 2016 you submitted another withdrawal request, this time for $19,000.  The request was approved and the money was transferred into your bank account on 10 June 2016.

d)On 20 June 2016 you again submitted a withdrawal request, this time for $29,000.  The request was approved and the money was transferred into your bank account on 1 July 2016.

e)On 25 July 2016 you requested a withdrawal in the amount of $20,969.57.  This request was approved and the money was transferred into your bank account on 28 July 2016. 

8The total amount stolen by you was $129,969.57 across these five transactions. 

9Your mother rarely accessed her superannuation account.  She had no idea that the account had been emptied of funds until March 2017. On 2 March 2017 she went to the Commonwealth Bank to speak to staff at the bank about her superannuation account.  She knew from the last time she had looked at her statement that there ought to have been more than $126,000 in her account.  The staff member with whom she dealt told her that there was no longer any money in the account.  She was shocked.  The staff member provided her with information about the dates of your withdrawals and the bank account numbers into which the funds had been deposited.  She did not know that it was you, her son, who had stolen the money.

10A police investigation revealed that between 20 June 2016 and 4 July 2016 you had telephoned Australian Super nine times to make enquiries about withdrawing money from your mother's superannuation account.  You had identified yourself on those occasions.  You purported to Australian Super that your mother had given you permission to act on her behalf.  You had an unknown female speak on the phone pretending to be your mother, telling Australian Super that you had her authority to speak to them in relation to her superannuation account.  These phone calls were made from your mobile phone.  Police obtained voice recordings of some of these calls, including a phone call involving a woman pretending to be your mother.

11Bank records show that all funds had been deposited into your personal bank accounts.

12You were interviewed on 6 June 2018.  You made no comment to the allegations.

13A voice analysis expert listened to the voice recordings from Australian Super and was of the opinion that the voice on those recordings was yours.  The voice expert was also of the opinion that the person pretending to be your mother was more than likely a younger female. 

14You were not charged until 1 September 2020.  You were committed for trial on 2 June 2021 after a contested committal where the voice recognition expert was cross-examined.  The trial was scheduled to take place in June of this year but shortly prior to trial you offered to plead guilty to a rolled-up charge of theft.  You were arraigned and pleaded guilty on 30 May 2022. 

Personal circumstances

15You were born in June 1978.  You are now 44 years old.  Your mother worked as a machine operator at Bonds in Coolaroo.  Your father, Recep, worked as a panel beater, self-employed.  You have one younger brother named Ersoy, who is 35 years old and works as a concreter.

16You attended primary school at Brunswick South-West Primary School.  You then went to secondary school in Princes Hill.  After you left school, you went to John Batman TAFE in North Coburg to learn panel-beating. 

17You were married in 1995 to a woman named Rita Romanos. 

18In 1996, you started a diploma in accounting at Swinburne.  You left this course in that year and started working with your father, panel-beating.  In 2002 you did some training in scaffolding at Holmesglen.  You completed that course in 2004 and obtained work at Kings Scaffolding in Dandenong in 2005.

19Your wife, Rita, had passed away in 2003 from cancer. 

20By 2006, you had developed a significant drug problem.  You were using cocaine and methylamphetamine at nightclubs.  You left your employment at Kings Scaffolding.  In 2007, you started your own scaffolding business and, I am told, you were able to earn reasonable money. 

21You have prior convictions for dishonesty offences in 2008, for which you received an Intensive Correction Order.  You breached that order but you were given another chance with a further order.  In 2011, you received a suspended sentence for theft offences. 

22Your drug use continued throughout this period.  You were using Ice regularly.  You were also using cocaine.  You say that you were spending approximately $2,000 to $3,000 a week on drugs. 

23At the time you were charged with this offending you were still using drugs and as I understood your counsel Mr Howson's explanation of the prison indent, serving a short sentence for other offences.  You were granted bail in November 2020 but you ultimately breached that bail by committing further offences and your bail was revoked in October 2021. You have further matters pending in the Magistrates' Court.  You do not have bail for those matters.  I was told that some of the pending matters will be guilty pleas but some are contested.  The exact date on which those matters are to be finalised is not yet decided. 

Guilty plea

24You pleaded guilty to this matter a few days before the listed trial date in June of this year but that plea had been settled to a rolled-up count of theft a few weeks earlier than that.  This was not an early guilty plea.  The prosecution had to prepare the case as a trial and engage a voice recognition expert.  The timing of your guilty plea meant that the prosecution had to devote money and resources to trial preparation; and the court had to list this case for a trial.  There is an opportunity cost to such a listing, namely that other trials waiting to be heard could not be listed at that time.  These matters reduce the utilitarian value of your plea. 

25Nonetheless, the utilitarian value of your plea is still important.  In the end you did not occupy court time running a trial, no doubt freeing up resources for other work in a time where, because of the pandemic, this court faces substantial backlogs.  The principles in the case of Worboyes have application, notwithstanding the lateness of your plea.  But they must be applied in light of the time at which you pleaded guilty.  There must be a sentencing discount in your favour, more significant than such a late plea would have attracted before the pandemic. 

26Ultimately, by your plea, you decided to facilitate the course of justice.  I am not convinced you have significant remorse for this offending, but I accept you feel some shame for stealing from your mother.  In my opinion the case against you was a strong one and your decision to plead guilty in part reflected that reality. 

Gravity

27It was submitted by your counsel, Mr Howson, that by 2016 you were deeply indebted to drug dealers.  In that context you and your unknown co-offender commenced stealing the money from your mother's superannuation account. 

28Mr Howson submitted that the quantum involved in this case is at the lower end of dishonesty matters dealt with in the County Court.  He submitted that the time frame of the offending was relatively short, approximately three months. 

29Mr Howson conceded there was a level of sophistication in the offending and that the offending involved a substantial breach of trust. 

30The prosecutor, Dr Harkess, emphasised the following aggravating features of your offending: 

·The amount of money stolen was substantial;

·The offending involved a major breach of trust, with you using your access to your mother's home and her financial documents to steal all of her superannuation funds;

·You also deceived Australian Super in order to steal from your mother;

·The offending was calculated and not opportunistic, having regard to the effort you went to to obtain the money. 

·None of the money has been recovered;

·You spent the money on yourself, whether it was for drugs or something else. 

31I accept that the serious features of the offending are well-established.  In my opinion the significance of the quantum should be assessed having regard to the fact that what you stole constituted 100 per cent of your mother's superannuation savings. It seems clear that the insurance company who covered the loss in this case will never be re-imbursed.  The offending was calculated, protracted and involved guile and repeated criminal acts. 

32In my opinion, whether you spent the money on drugs, drug debts or something else does not really matter.  You spent the money on yourself, and you spent it quickly.  On the material before me I am satisfied beyond reasonable doubt that you were the principal offender and the driving force behind the offending.  You had a co-offender, the female who pretended to be your mother in the phone calls, but I have no evidence about her participation beyond that she was involved in the phone calls.

33Having regard to the breach of trust and the other serious aspects of the offending pointed to by the prosecution, I regard this as serious dishonesty offending for which your moral culpability is substantial.  Considerations of general deterrence, specific deterrence, denunciation must be given significant weight in deciding the appropriate sentence. 

Delay

34After the initial record of interview in this matter in 2018, charges were not laid for over two years.  I take that delay into account as a mitigating factor.  The case has taken two years since then to be finalised.  You had a contested committal in the Magistrates' Court and the matter was booked in for a trial in June of this year.  The progress through the courts has been slow because of the pandemic.  I take that into account as increasing the anxiety you experienced awaiting the resolution of the case. Demonstrated rehabilitation in this period would have been an additionally powerful factor in mitigation arising from delay; however, in this case the behavioural issues that led to your offending remain significant impediments to your prospects of rehabilitation. 

35You have prior convictions for drug offences and for dishonesty offences.  You were previously placed on an Intensive Correction Order for dishonesty offending.  You had bail for these offences, but I am told went back to offending, which resulted in your return to custody.  This was conceded by Mr Howson. 

36Mr Howson accepted that, having regard to your criminal history for dishonesty your prospects of rehabilitation should be assessed as guarded. I agree with this. 

37I take into account the fact that the time you have spent on remand waiting for this matter to be finalised has been served under the restricted conditions that have prevailed in prisons in response to the pandemic.  Visits were for a time suspended and programs have been restricted.  This increases the burden of the period you have spent in prison and will have an impact on any further time to be served. 

Submissions

38Mr Howson in his written submissions argued that given the 398 days served as pre-sentence detention, a Community Correction Order was within the range of sentences available to the court.  In oral submissions he conceded a Community Correction Order was not realistic because you do not have bail on the pending criminal charges. 

39Mr Howson referred to some County Court sentencing decisions which he submitted were appropriate comparative cases.  He submitted based on those cases, that the sentencing range allowed for a sentence of 398 days as a straight sentence, covered by the pre-sentence detention. 

40Mr Howson submitted that you will not get parole and therefore I should impose a straight sentence and that to impose a sentence with parole would involve inflating the head sentence, given what he submitted were current sentencing practices for like offending.  That submission seemed to me to be based on one comparative case, a County Court sentence of Judge Saccardo.

41The prosecutor Dr Harkess submitted that the comparative cases relied on were of limited utility.  He submitted that a close examination of those cases revealed distinguishing features.  It seems to me that is right.  No two cases are the same and there are distinguishing features.  Comparative cases are not precedents. 

42I have had regard to the comparative cases referred to and to current sentencing practices.  Current sentencing practices are one of the many matters to which I must have regard in formulating the sentence in this case.  They are a guide but not a controlling factor in deciding the appropriate sentence. 

43Dr Harkess submitted that having regard to the serious features of this offending, the appropriate sentence is a head sentence with a non-parole period. 

44In my opinion considerations of general and specific deterrence and denunciation and just punishment are such that a sentence long enough to necessitate a parole period is appropriate in this case.  In my opinion such a sentence does not involve inflating the sentence to allow for supervision as submitted by your counsel, Mr Howson. I have disregarded the submission you will not get parole.  Whether parole is granted the expiration of the non-parole period is not a matter to which I can have regard.

45I have had regard to the nature and gravity of the offending in this case.  I have also had regard to the need to facilitate your rehabilitation. 

Sentence

46On the charge of theft, I sentence that you are to be imprisoned for a period of 22 months. I fix a non-parole period in this matter of 16 months. 

47I declare that you have served 406 days to be reckoned as pre-sentence detention pursuant to s 18 of the Sentencing Act 1991.

48Pursuant to s 6AAA, but for your plea of guilty I would have imposed a sentence of 2 years and 8 months, so 32 months with a non-parole period of 24 months.  So those are the orders I make in this case.