Director of Public Prosecutions v Ceylan
[2021] VCC 788
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00693
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYTAC CEYLAN |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2021 |
DATE OF SENTENCE: | 11 June 2021 |
CASE MAY BE CITED AS: | DPP v Ceylan |
MEDIUM NEUTRAL CITATION: | [2021] VCC 788 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea – Attempt to Pervert the Course of Justice – Psychological – No Criminal History – Offending out of character – Community work – Community Corrections Order – Parity – Serious offending – Familial Offending – Remorse – Good prospect of rehabilitation
Legislation Cited:
Cases Cited:
Sentence: 15 Month Community Corrections Order – 100 hours community work
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Barry | Mr L. Andrews |
For the Accused | Mr C. Terry | Ms. Y Kushnir |
HIS HONOUR:
1Aytac Ceylan, you have pleaded guilty to one count of attempting to pervert the course of justice, maximum penalty 25 years' imprisonment.
2The circumstances of the offending were set out in the prosecution opening which was read in open court earlier in the week. In essence, the allegation is that on 21 July 2018 you did an act, in that you prevailed upon Mr Yaydemir to either give evidence at a Magistrates' Court committal hearing that there was a commercial agreement between Mr Yaydemir and Sedat Ceylan, or not attend the committal hearing.
3How the offending occurred is set out in the prosecution opening, which the full details have been canvased in the opening;[1] they are also canvased in my sentencing remarks in relation to Mr Sedat Ceylan,[2] who was the principal offender, and his sister, Gonca Ozkocak[3] and Mr Sedat's wife, Ozlem.[4] Those sentencing remarks I incorporate by reference, or the three of them by reference in relation to the charge of attempting to pervert the course of justice.
[1] Exhibit A on the Plea.
[2]R v Ceylan [2020] VCC 1644.
[3]R v Ozkocak [2020] VCC 1961.
[4]DPP v Ceylan 31 March 2021.
4In essence, Sedat was in prison, he had had his bail refused for serious fraud charges, a serious fraud charge, and he then made a phone call to your landline and prevailed upon you to make a call to the complainant in the fraud charge, Mr Yaydemir, in order to ask him to drop, effectively not turn up at the committal or say that the matter was a commercial dispute between him and Sedat.
5Your offending occurred on the one day, that involved effectively three phone calls. As set out in the prosecution opening, there were two calls, and you participated in another one a couple of hours later and then it is common ground that you then, later that day, went overseas to be with your ailing father back in Turkey. So that contrasts your involvement with that of Gonca and Ozlem, because the following day they arranged for the recording of your phone call to Yaydemir to be modified. So, their offending covers two days, whereas yours only covers the one day. The offending got nowhere because Mr Yaydemir went to the police.
Assessing the seriousness of the offending
6Any attempt to pervert the course of justice is serious. This was a less serious category or less serious offending, but still serious offending, because this is a serious offence and strikes at the heart of the criminal justice system.
7The context in which you became involved was that you were part of a family constellation, that you were all living in the one household. Sedat, I do not think Gonca was living there, but you had been married to Sedat's brother, Nijat, and you separated from him at that point, I think, but you were effectively the ex-sister-in-law of Sedat, the principal offender. He was married to Ozlem and the other involved party was Gonca.
8And so you are all of Turkish extraction and both Ozlem and you had arrived in Australia around the age of 20, under arranged marriages, and both of you were in a dependant sort of psychological relation with your relevant husbands. And this is evidenced in the psychological report which was tendered by your counsel, Mr Terry, where the psychologist says, well you were living with your husband, with your in-laws, his in-laws, and you lived together with your mother-in-law and then you had been under pressure to abide by what the men of the household wished. You told the psychologist that this had been a cultural expectation of her husband's family unit. And your husband, of course, was Mr Nijat Ceylan, who is the brother of Sedat Ceylan, who is the principal offender. And you said to the psychologist:
Aytac said, "We, as females, don't have the luxury of saying no to the men of the house”.[5]
[5] Exhibit 3 on the Plea.
9You told her that it had been particularly difficult for you to gain confidence, to stand up for yourself, because you came to Australia through marriage when you were just 20 years old and you had no family or supports. There had been constant pressure on you to comply with what your husband's family wanted, and you had been the main care giver for your mother-in-law for many years.
10So, that was the immediate pressure. On top of that you had the burden of one of your parents had died about four months' earlier, your mother, and then your father was ailing in Turkey, in a coma and you were about to fly out. So, that was the context in which you acceded to the request by Sedat, when he rang you up and asked you to ring Yaydemir up, which you did.
11So it was serious offending. Your involvement was lesser than the other two, in a sense that you did not have anything to gain from it but you were part of that family constellation that was involved.
Your personal circumstances
They were set out in a comprehensive plea from Mr Terry. You are a woman now of 51, you have got three children. As I said, you had come to Australia at age 20. It appears that your English is not fully comprehensive but you are a person of no prior convictions, no involvement in the criminal justice system, and I note and take into account a reference from the next door neighbour, Wendy Hancock, and then also a reference from your daughter.[6]
[6] Exhibit 2 on the Plea.
12You have got three children, one of whom is still at home, but your daughter pointed out that you were grieving for the loss of your mother and agonising over your father at the time of this offending, so that explains why you would have done what you did, but you are an intelligent woman. You have managed to finish school in Turkey, and so you should have understood that what you were doing was contrary to the law and you must be taken to have known that it was contrary to the law, because you must be taken to have known that Sedat had been in gaol at that point for a considerable period and the bail had just been refused. If you are living with his ex-wife and his brother, all in the family house, you must have known that it was a significant issue when he rang you up, but you went ahead and did it anyway.
13The critical issue in the sentencing here, was what was put by your counsel, that this matter should be dealt with by way of an adjourned undertaking. He did this on the issue of parity that your role was lesser than that of Gonca and also lesser than that of Ozlem, and that both of them had no prior convictions, Ozlem had an additional charge and it was put that a lower penalty in the sentencing hierarchy was applicable. And that was required on principles of parity.
14Your counsel submitted that your culpability was significantly lower than that of the co-offenders when compared with that of Gonca and Ozlem. Mr Barry, the prosecutor, has submitted that your culpability was on about a par with Ozlem. He has further submitted that the principles of parity called for a community correction order due to the broadly comparable culpability of the two of you; you and Ozlem.
15I have considered this issue and the competing submissions and am of the view that considerations of parity call for a sentence of a community correction order. First, I accept that your role was lower than that of Ozlem, in that it was confined to the two phone calls, and the third phone call that you participated in on that one day, rather than the second day action by Ozlem and Gonca. However, you played an important role in a joint enterprise by the family members to attempt to have Yaydemir drop these charges.
16Next, in terms of the relevant sentencing disposition, in contrast to Ozlem and Gonca, your plea was late. While it has utilitarian value and you get credit for that, it was effectively at the door of the court and this is relevant to the disposition. The matter was listed for trial and it was ready to go and then a short time prior to that, you indicated that you intended to plead guilty.
17It was further submitted that the case against you was weak and that made the plea of greater utilitarian value than in relation to the other two, Gonca and Ozlem. I do not accept that submission. While there is utilitarian value, the plea was late, but there was – I find strong evidence against you; it is there on the calls, so I do not accept the submission that it was a weak Crown case.
18I do accept however, the submission of Mr Terry that you are remorseful, even though the plea was late, and that is evidenced in the assessment by the community corrections officer and I give you credit for that.
19A number of comparable cases were put to me by Mr Terry which, in circumstances where offending similar to this or comparable to this, resulted in adjourned undertakings by other judges of this court.[7]
[7]DPP v Bilston [2017] VCC 596, DPP v Hodge [2016] VCC 1608, DPP v Giulieri [2017] VSCA 1081.
20Mr Barry submitted that a number of these cases are distinguishable. Each case is really – they are not precedents as such, but the important factor here is that you were part of a combined family effort to attempt to pervert the course of justice for the benefit of Sedat. You played a role, albeit a lesser role, than that of Gonca and Ozlem and your conduct along with, as I have indicated, the conduct of both Ozlem and Gonca must be totally condemned.
21In sentencing you, I am required to take into account principles of general deterrence, denunciation, specific deterrence and rehabilitation into the community. Your counsel submitted that you are a first offender and that your prospects of rehabilitation are good. I accept that. But in sentencing for this offence, which carries a 25-year maximum, principles of general deterrence remain very important. Too often family members are dragged into the criminal justice system by principal offenders, as they seek to pervert the criminal justice system, or attempt to pervert the criminal justice system. That is what has happened here. Thus, a signal must be sent to those tempted to assist other family members, that significant sentences will apply and it is on that basis that I have determined that an appropriate sanction in this case, for the reasons that I have articulated, is a community corrections order.
22I have had you assessed for a community corrections order and it is has been found that you are suitable for that order and in reaching that conclusion of the community correction order, I have taken into account all the submissions that have been made on your behalf, and provided you consent, I am proposing to convict you and impose a community corrections order of 15 months with a requirement that, in the course of that 15 months, you perform 100 hours of unpaid community work.
23I will hand to both parties, send you Mr Barry, the copy of the proposed community corrections order, ask for you to check it. If it is in order, I then ask Mr Terry to explain it to his client through the interpreter and have her sign it, and then I will resume. Are there any other matters?
24I am going to declare pursuant to s6AAA that had she not pleaded guilty, I would have imposed an 18-months community corrections order with more community work.
25(Short adjournment.)
26Ms Ceylan, on this charge I am convicting you and sentencing you to a
15-month community corrections order. You agreed to that, and you must perform 100 hours of community work. So, you have got to go to the Coolaroo Community Corrections Centre within two business days, or ring them up. For the next 15 months you have got to comply with directions by the community corrections officer, including change of address and leaving Victoria, and in addition to that you have got to perform 100 hours of community work. They will organise that for you.27In addition, if you commit a crime that carries a term of imprisonment in the next 15 months, then that breaches the community corrections order. Just as failing to do the community work or failing to obey the directions, breaches it. In which case, you could come back, and I would resentence you. I am pretty sure Mr Terry will have explained the order to you. Is that right, Mr Terry?
28MR TERRY: Yes. I did ‑ ‑ ‑
29HIS HONOUR: Yes.
30MR TERRY: ‑ ‑ ‑ albeit incorrectly. I have been corrected by the learned Crown instructor that the order effectively ends once the community work is done, because it is community work only.
31HIS HONOUR: Yes, yes, right. All right, so you will get a copy of this order, Ms Ceylan, to take with you and I do not want to see you back in the criminal justice system.
32I want to thank Mr Terry for his assistance, Mr Barry for coming in, and the interpreter.
33Anything else, Mr Barry?
34MR BARRY: No, Your Honour.
35HIS HONOUR: Very well. Thank you and adjourn the court.
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