Director of Public Prosecutions v Corbacioglu

[2015] VCC 234

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 13-002172

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEVENT CORBACIOGLU

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:	2 and 3 March 2015
DATE OF SENTENCE:	3 March 2015
CASE MAY BE CITED AS:	DPP v Corbacioglu
MEDIUM NEUTRAL CITATION:	[2015] VCC 234

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty	Office of Public Prosecutions
Tony Danos Solicitors
For the Accused	Mr R Thyssen

HIS HONOUR:

1Levent Corbacioglu, on 14 April 2013, you and a co-accused, Suak Ulu, committed an aggravated burglary on a house just outside Shepparton.  The house was the family home of James Sheehy and his father, Greg Sheehy. 

2James Sheehy, it seems, moved back to the house in three months or so prior, following the death of his mother.  Also living at the house was two friends of James Sheehy, that is a Chris McDougall and a Cliff Henderson. 

3It seems you and perhaps Mr Ulu came to the view that the occupants, and in particular it seems Mr Henderson, had drugs in the premises.  You and the co-accused went into the house with balaclavas on, carrying a baton and a meat cleaver.  James Sheehy and Chris McDougall were bailed up, threatened and demands were made for drugs and money. 

4

It was a protracted incident, including calls being made to Mr Henderson, who returned from where he was to the house.  The men, or some of them were tied up and otherwise falsely imprisoned.  Doonas were placed over

Mr Sheehy and Mr McDougall's heads.  There was violence towards

Mr Sheehy in particular.  Property was stolen, including jewellery belonging to James Sheehy's mother, though you are not facing any charges of theft, or any of assault. 

5Ultimately telephone calls were made to the victims, making arrangements for property to be returned.  Some property was left on the side of the road.  Tests were done on that property revealing your fingerprint.  You were arrested and denied your involvement.

6The facts that I have set out above are the bare bones of what was contained in the prosecutor's opening.  I will append the opening to these reasons. 

7The co-accused, Mr Ulu, after his arrest, co-operated with police and made a statement implicating you.  He was sentenced by Judge Saccardo, a judge of  this court on 12 November 2013.  Mr Ulu had served no time in custody, being on bail from his arrest.  Ultimately he was sentenced or was ordered to undergo a three year Community Corrections Order, with 300 hours of unpaid work to be performed during the period of 18 months.  There were also program conditions relating to his use and addiction to drugs.  Mr Ulu was, at the time, subject to an earlier Community Corrections Order for possession of a handgun.  He was 29 years old.  You, at the time, were 26 years old. 

8You have relevant priors, in particular assault and affray, which saw the District Court in New South Wales impose a gaol term on you in August 2008.  You have other prior matters from the Children's and local courts in New South Wales from 2005, when you were, it seems, about 17 or 18 years old. 

9Of concern was that you were placed on a Community Corrections Order on 11 February 2013 by the Shepparton Magistrates' Court, that is, some two months before this offending.  You were placed on the Community Corrections Order for committing crimes of burglary, attempted theft, criminal damage, with going equipped to steal and being disguised, with criminal intent.

10

This offending breaches that order.  I was told today that you have been

re-sentenced for those offences, and the sentence imposed upon you was three months' imprisonment.  You have served that term. 

11You have been in custody for a total of 270 days, however as it turns out, only 56 days are declarable as relating to this offence.  You were on bail for part of the time since the offending occurred while waiting for this matter to be called on.  There was revocation of your bail.  It seemed to arise because of the difficulties you were having with your partner, who was the surety for your bail. 

12In the last fortnight, that is in mid-February 2015, a magistrate imposed 124 days of imprisonment for the offence of recklessly causing serious injury, where the victim of that offence was your partner.  I will return to the importance of your relationship with her shortly.

13

This case has had a bumpy ride through the criminal justice system.  A committal was held on 14 November 2013, delayed no doubt until the

co-accused was sentenced in the County Court.  The trial was listed in September 2014, but the jury empanelled was discharged because prosecution witnesses could not be found. 

14As it turns out, while you awaited trial, the Court of Appeal has delivered an important guideline judgment in the matter of Boulton v R, which assists and guides sentencing judges when considering and imposing Community Corrections Orders.  It has, to use the language of the Court of Appeal, identified or changed the sentencing landscape, by reason of the new regime of Community Corrections Orders and the ability that sentencing judges have to impose terms of imprisonment of up to two years, as well as a Community Corrections Order.

15One of the keys is that the Community Corrections Orders allow sentencing judges to simultaneously satisfy the sentencing considerations of punishment and rehabilitation, by the use of unpaid work and the program conditions of a Community Corrections Order.  The decision of the Court of Appeal makes it clear that crimes which might otherwise have attracted a suspended sentence, when they were available, or in ascending order upwards, up to a mid-range sentence of imprisonment.  For these offences the sentencing judge may now be able to consider a Community Corrections Order.

16It is necessary, so the Court of Appeal says in Boulton, to consider whether a Community Corrections Order, perhaps with the - in addition to a short gaol term, may meet all sentencing considerations.  The requirement is to analyse whether a CCO may be imposed before a sentencing judge would move on to imposing a gaol term involving a head sentence and a minimum non-parole period. 

17Here your offending was serious.  An invasion of a home and the violent, threatening and dealing with the occupants, makes it plain how serious it was.  You had weapons.  Thankfully no physical injuries were inflicted.  I take it from all the material that the victims were in real fear.

18You have ultimately pleaded guilty and that must be acknowledged by a punishment less than otherwise would be the case.

19As to your personal circumstances, you were raised in New South Wales and got into trouble, it seems, in your late teens or early 20s.  Following gaol terms, you went to Queensland to where your father was living after he had split from your mother.  In Queensland you met your partner, Ms Taylor.  You remained together despite your offending, including offending against her.  You are a father figure to her young child.  Her support seems to me to be a vital component in your rehabilitation.  She lives and works in Melbourne.  The hopes you both have is that you will reside together in Melbourne and stay away from problems and people connected with Shepparton.  In the meantime you will, upon your release it seems, first settle in Shepparton with your mother, who likewise continues to support you. 

20You have mental health problems which require attention and medication.  You already had in mind to get a mental health plan in place and I only urge that you continue to have your mental health treated by those that can help you. 

21You had problems with the drug, ice.  It is up to you whether you take this opportunity to put drugs behind you once and for all.  You have, to use the vernacular, dried out and now, it seems to me, is your best chance, but it is entirely up to you.  I could not put it in more blunt terms, but do not let your partner down again. 

22I am mindful of considerations of parity with your co-accused, but of course your co-accused co-operated and gave an undertaking to give evidence against you.  That is no small matter.  But he served no gaol and you have served 56 days of pre-sentence detention, in a total of 270 day imprisonment in two stints since this offending.  I take into account the whole time you have been in custody, though I remain aware that much of it was ordered as imprisonment for other crimes. 

23Your counsel argued that a sentence of imprisonment that requires no further period of incarceration or if any, a short sentence, together with a lengthy CCO.  The prosecution, with commendable fairness, argued that the pre-sentence detention is not quite sufficient.  In my view, a short further term of imprisonment is required for the punishment to be just and appropriate, in order to denounce your crimes, deter you and others, and to facilitate your rehabilitation. 

24Can you please stand, Mr Corbacioglu. 

25I intend to impose an aggregate sentence for the crimes that you committed, because they arise out of the one episode. 

26For committing the crime of aggravated burglary, and the three false imprisonments, I sentence you to a period of five months' imprisonment, together with a two year Community Corrections Order, which will have a number of conditions which I will outline.  Principle amongst them is that you must do 200 hours of unpaid community work. 

27I will also order that you are under supervision, engage in mental health programs, programs related to drug dependence, and other programs that will assist in preventing you re-offending.  That will be all outlined in detail when a document is produced. 

28

You have already served 56 days of the sentence that I have just imposed. 

I need to, having reckoned the 56 days, declare that those 56 days are part of the sentence of five months that I have just imposed.  I will ensure that that declaration is entered into the records of the court, so the prison authorities are left in no doubt that of the five month sentence that I have just imposed, that you have already served 56 days.

29

I am required by virtue of the provisions of s.6AAA of the Sentencing Act, to indicate to you what I would have imposed had you pleaded not guilty to these crimes and been found guilty of them.  Judge Saccardo, in dealing with

Mr Ulu, indicated what he would do.  He said he would have imposed a sentence of four years, with a minimum of three years.  I, likewise, and because of the declaration of Judge Saccardo, indicate that had you pleaded not guilty to these crimes and been found guilty of them, I would have imposed a sentence of four years, with a minimum of three.  Though the difference between that term and the sentence that I imposed, is for many reasons, which includes your plea of guilty, though it is not totally for that reason.

30Now gentlemen, has that covered all matters?  Is there any other orders to retain things, or - - -

31MR O'DOHERTY:  No other orders, Your Honour.

32HIS HONOUR:  All right.  We will just have the Community Corrections Order document produced and if he consents to it, then sign it and so on.  Just take a seat.  Take a seat. 

33Mr Corbacioglu, apologies for struggling with your name, it is just a problem I have.  The Community Corrections Order part of this sentence that I have imposed will be for two years.  It commences upon completion of your term of imprisonment of five months.  Once you are released, you must attend at the Shepparton Community Corrections Service, 307 - 331 Wyndham Street, in Shepparton, within two clear working days.  As soon as you are out, go. 

34

These terms I am about to outline apply to everyone on a Community Corrections Order.  You are not to commit and offence for which you could be imprisoned during the time of this order.  Almost every offence you can think of is punishable by imprisonment.  It does not matter whether the magistrate would not give you imprisonment.  If you commit such an offence, then that will breach this order and you will come back to me and I will speak about that shortly.  You must comply with any obligations under the sentencing regulations.  I am told that that refers principally to having your photograph taken by them, so that you can be identified when you are doing work and various other things.  You must report to and receive visits from the secretary.  You must let the Community Corrections Officer know within two clear working days of changing your address, that is going back to Melbourne, if that is what you are doing, or your job.  That is, if you get a painting job or whatever it is.  Just keep them informed of what you are up to.  You must not leave Victoria without first getting permission to do so.  That would be to Albury to see

in-laws, so any trip across the border.  You must obey all lawful instructions and directions from them. 

35All right.  These apply just to you.  That is, you do 200 hours of unpaid community work, as directed by the Office of Corrections.  You must be under the supervisions of a Community Corrections Order for the two years.  You must undergo assessment and treatment for drug abuse and dependency.  You must undergo any mental health assessments and treatment that they request of you.  And you must participate in programs that address factors relating to your offending, as directed by the regional manager.  And if you consent to that order, then sign it. 

36Can I just point out before you consent to it, that I spoke generally and it has been in my sentencing remarks and obviously specifically to you about the changed sentencing regime, which give sentencing judges a bit more flexibility to apply these sorts of orders for the sorts of crimes and to people like you.  But I think you should understand that that change of landscape gives you one chance.  Should you breach this Community Corrections Order, which in days gone by, might not be what I would have turned to, then I will turn to the sentence that the community would expect I would, that is to impose a lengthy term of imprisonment.  No other way. 

37Now of course I will hear what you have got to say on any breach, any reason, but it would have to be so powerful to dissuade me not to impose a very lengthy term of imprisonment should you breach these orders.  Do you understand?

38OFFENDER:  Yes, Sir. 

39HIS HONOUR:  If you do and you sign this, on another page is my signature, I will fix that up.  Should that be done, then you would be taken back to the prison to complete your sentence and then get on with this Community Corrections Order. 

40Could you just approach him at the back.

41What you will find, to my great frustration, is that the computers tell me that I cannot change how the thing is set up, such that he signs one page and then the only thing on the second page is my signature.  Just get him to sign it and I will sign both pages. 

42Just above your signature is the words, "I understand the effect and conditions of this order and consent to being made."  You would be reminded of that should you breach it. 

43Mr Corbacioglu, this courtroom, perhaps even less than others, is just not set up for you to spend any time with those who are here, and that you probably will not see for a little while, until you get back to your prison.  They can make whatever arrangements.  You probably would behave, I do not know, but others probably would not, so I cannot allow for you to spend any time with them.  The police officers have got a job to do.  They will take you back to the cells and will see your family at a later point. 

44I will remain on the Bench while that occurs.  Remove Mr Corbacioglu.

45MR THYSSEN:  May I be excused to just have a quick word with him outside, Your Honour?

46HIS HONOUR:  I do not know, that is up to the prison authorities - the policemen. 

47Grateful to you, Mr Thyssen for your efforts today.

48MR THYSSEN:  Thanks, Your Honour.

49HIS HONOUR:  Thank you.    

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