Director of Public Prosecutions v Coskun
[2022] VCC 2170
•30 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01660
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CEM COSKUN |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2022 | |
DATE OF SENTENCE: | 30 November 2022 | |
CASE MAY BE CITED AS: | DPP v COSKUN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2170 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft – Handle stolen goods – Aggravated carjacking – Causing injury intentionally – Causing injury recklessly
Sentence: Convicted and sentenced to a total effective sentence of 6 months and 28 days imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D.Brustman KC | Office of Public Prosecutions |
| For the Accused | Mr D. Rofe | Chester Metcalfe & Co |
HER HONOUR:
1Cem Coskun you were found guilty by a jury of one charge of intentionally causing injury, and one charge of theft. You had pleaded guilty to the charge of theft, before the jury. You have also pleaded guilty three related summary offences.
2The charges are based upon offending on 29 October 2019. In the late afternoon you a passenger in a Toyota RAV4, driven by Ishmail Sozmen.
3At around 5.30 pm Mr Sozmen pulled up in the RAV4 and stopped behind a Land Rover which was parked outside the Coles Click and Collect car park in Green Gully Road, Clyde. Parked a space or two away from the Land Rover was a black Holden Commodore ute, driven by Matthew Muzzolini. Mr Muzzolini was out of the car, talking to someone. He had left the keys in the car. Sam Eurell was sitting in the passenger seat of the Commodore with the window down, waiting for Mr Muzzolini.
4As I have said, Mr Sozmen pulled up in the RAV4 behind the Land Rover, stopping suddenly. He got out of the driver’s side door immediately after he stopped. He was armed with a black steel baton.
5Mr Sozmen moved straight towards Mr Muzzolini hitting the back of his ute on the way, with the baton. Mr Sozmen confronted him, yelling at him to come here, and to get out of the car. Mr Muzzolini retreated away from him and into the Coles.
6You also got out of the RAV4. You were also armed with a black baton or pole. You went up to the passenger side of the ute and confronted Mr Eurell, who was still sitting in the car with the door closed and window down.
7You struck towards the car and Mr Eurell, hitting him on the arm with the baton.
8Mr Sozmen then approached Mr Eurell, and struck the Commodore with his baton. You and Mr Sozmen told Mr Eurell to get out of the car, and one of you opened the car door. Both of you struck at Mr Eurell, he was hit on the forearm, which caused bruising, and his thumb which caused a laceration. You were found guilty of intentionally causing injury to Mr Eurell and Mr Sozmen pleaded guilty to the same charge in respect to the injuries he inflicted.
9You and Mr Sozmen moved to the driver’s side of the ute and Mr Eurell made his escape, also going into the Coles.
10Mr Sozmen got into the driver’s seat of the Commodore and drove it away, down Green Gully Road. Mr Sozmen pleaded guilty to the theft of this car, following the acts of violence whilst armed, which was charged as Armed Robbery. A jury acquitted you of a charge of aggravated car-jacking, presumably on the basis that they could not exclude that you thought that Mr Sozmen had a lawful reason for taking the car.
11You had taken over driving the RAV4. At 6.22 pm Mr Sozmen pulled over in another street in Clyde, in the Commodore, which had run out of petrol, and you, stopped the RAV4, behind him. You and Mr Sozmen then pushed the Commodore onto the nature strip.
12Mr Sozmen then rummaged through the Commodore, taking Mr Muzzolini’s wallet, and putting it in his bum-bag.
13You and Mr Sozmen abandoned the Commodore and Mr Sozmen got back into the driver’s seat of the RAV4. He drove off, with you in the passenger seat.
14An hour or so later, at 7.38 pm Mr Sozmen pulled into a BP petrol station, in the RAV4. He filled that car with petrol, whilst you filled a red jerry can at another petrol pump. You both got back into the RAV4 and drove away, without either of you paying for the petrol. This gives rise to Charge 6, theft.
15Later that evening the RAV4 was spotted by police in Waterloo Crescent, St Kilda. Mr Sozmen was in the driver’s seat and you in the passenger seat. You were arrested and when the vehicle was searched police found various items, including the red jerry can with petrol. You also had a baton and a box cutter in your possession which are the subject of summary charges 8 and 9.
16You have also pleaded guilty to driving whilst unlicenced, in respect to your driving of the RAV4, earlier that evening.
17The prosecution noted that this was clearly frightening offending, not only towards Mr Eurell and Mr Muzzolini, but also to the people nearby. You used a baton to when inflicting injury on Mr Eurell. You offended in company with Mr Sozmen. This remains the case even though you were acquitted in respect to the taking of the car, and the charge of Intentionally Causing Injury applies only to the injuries caused by you and not by Mr Sozmen.
Personal Circumstances
18You were born in Queensland in 1988, and lived there with your parents until you were 13. You were then sent to live in Turkey, with your grandparents. You completed Grade 6[1] here in Australia, and when in Turkey you repeated that year before leaving school when you were around 15.
[1]Australian Community Support Organisation, Confidential Forensic Drug and Alcohol Assessment Report dated 22 November 2021, page 2
19After that you had part time jobs, before commencing your national service, when you were 20.[2]
[2]Ibid,page 3
20From 2008 to 2009 you completed your military service in Turkey. You report numerous traumas in that time, you saw friends shot and injured, you saw a lot of death in the fighting, and the training was harsh. You report that when you were disciplined for falling asleep on duty you were put in military prison for two weeks, which you described as brutal.[3]
[3]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [24]
21When you were 21 you returned to live in Australia. You struggled to feel normal, and were affected by the traumatic experiences in the army. You found work as a bricklayer, and as a truck driver. Your last paid employment in was in 2015 as a truck driver.[4]
[4]Australian Community Support Organisation, Confidential Forensic Drug and Alcohol Assessment Report dated 22 November 2021, page 3
22Around a year or so after you came back to Australia you formed a relationship with a woman, with whom you share two daughters. You were concerned that your parents would not accept that your partner had children from a previous relationship and this made you feel stressed. You say that this stress led you to increase the use of methylamphetamine, until your relationship fell apart in 2016, and a family violence intervention order was put in place. You have not seen your daughter for several years, which together with the breakdown of this relationship distresses you.
23You reported first smoking Cannabis as a teenager, with sporadic use of that drug since. You first used methylamphetamine when you were 23, in a social context, but over the next 4 years or so your use escalated significantly until you were smoking around half a gram a day.[5] In 2021 you report that following your arrest in 2016 your use of that drug reduced, but only to the extent that you were using 2 to 3 times a week, not daily.[6] You also report commencing abuse of GHB from age 31, and an instance of overdose of that drug which caused you to be hospitalised.
[5]Australian Community Support Organisation, Confidential Forensic Drug and Alcohol Assessment Report dated 22 November 2021 page 1, Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [47]
[6]Australian Community Support Organisation, Confidential Forensic Drug and Alcohol Assessment Report dated 22 November 2021, page 1
24In the later part of 2021 you were bailed on the CISP program, with recommendations for drug and alcohol and mental health treatment.
Physical Health
25You have a number of physical ailments. Psoriasis affects much of your skin, and you have been taking medication for that condition for many years. You have asthma, arthritis and high blood pressure. You have a congested nose, due to multiple fracture events. You believe you may have sleep apnoea, and have difficulty sleeping. You report being attacked on several occasions, in the context of your drug associated lifestyle, including being stabbed in the shoulder and ear, and being glassed and hit on the head with a hammer.
26You give as your reason for being involved that you were heavily drug affected, having used Cannabis, Methylamphetamine and GHB.[7] Your use of these drugs on this day was on a history of drug abuse and mental health issues.
[7]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [11]
Mental Health
27Ms Cidoni, who assessed you in May 2022, made the following diagnoses:
(a) Post-Traumatic Stress Disorder
(b) Major Depressive Disorder
(c) Generalised Anxiety Disorder, and
(d) Substance Use Disorder.
28She also considered that whilst you do not meet the criteria for a personality disorder you have traits linked to dramatic overly emotional and unpredictable thinking.[8] You presented with low morale, and little self-confidence. You feel unworthy, unhappy about your life and are anxious about the future.[9]
[8]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [76]
[9]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [62]
29Ms Cidoni considered that your mental health was linked to your ability to exercise judgment, and make calm and rational choices. She considered that, in particular, the PTSD arising from your time in the army in Turkey was linked to your transition from limited to heavy use of methylamphetamine.[10]
[10]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [80]-[85]
30Ms Cidoni was only able to administer two intelligence tests, each of which fell in the borderline range. The full battery of tests was not applied.
31Ms Cidoni applied the Violence Risk Appraisal Guide, and assessed your risk of further violent offending as medium.[11]
[11]Psychological Assessment Report by Ms Gina Cidoni dated 17 May 2022, [70]
Criminal History
32Your criminal record commences in 2012, with a charge of unlawful assault. In 2016 you were before the Broadmeadows Magistrates’ Court for a range of offending, including two charges of unlawful assault, two charges of making a threat to kill, nine charges of persistent breach of a family violence intervention order, driving offences, bail offences, and dishonesty offences. This court appearance was temporally and causally linked to your escalating drug abuse and the breakdown of your relationship, with associated family violence. The sentence was 246 days which was time served and a CCO with conditions for assessment and treatment for your mental health, and drug abuse, as well as a requirement that you engage in the men’s behavioural change program.
33In 2017 you were again before the court for charges including possession of a controlled weapon. The disposition notes on your criminal record indicate you were attending a psychologist for assistance.
34In 2018 you were again before Broadmeadow’s Magistrates court for offences including breaching an interim family violence intervention order, making a threat to kill, using a carriage service to harass, and for breaching the 2016 CCO.
Matters Raised on Plea
35You pleaded guilty to the charge of theft, and the summary offences. You ran a trial on the charges of aggravated car-jacking and intentionally causing injury. You had pleaded guilty to recklessly causing injury before the jury.
36As I have noted already, you were acquitted of the charge of aggravated car-jacking, which was the principal charge. Whilst you are not entitled to a discount in your sentence for the charge of intentionally causing injury, this is not an aggravating matter, rather the absence of a mitigating factor.
37In respect to the charge of theft, you are entitled to and will receive a discount on your sentence, in light of your plea. Whilst this charge was determined by the jury, your plea meant that it did not add to the length or complexity of the trial, and you are entitled to mitigation afforded by the utilitarian benefit of your plea. This is significant particularly in view of the pandemic and its effects on the court’s lists.
38You were arrested in October 2019 and spent 190 days on remand, before being bailed in late April 2020.
39You were arrested again on 27 Sept 2022, the day before this plea was listed.
40It was submitted that the gravity of the charge of intentionally causing injury was below the mid-range. Your lawyer noted that although you offended in company, your behaviour was spontaneous, and motivated by an erroneous and ill-judged support of Mr Sozmen. Your counsel sensibly submitted that whilst your mental health diagnosis impacted your judgement at the time, the weight of this in mitigation was reduced by reason of your offending being “primarily drug fuelled”.[12]
[12]Defence Submissions dated 21 September 2022, [8]
41Furthermore, whilst you were armed with a baton, the injuries Mr Eurell suffered were minor, and I can be satisfied only, to the relevant standard, that one of the strikes you directed towards the ute and Mr Eurell connected with him. I cannot say which of the injuries Mr Eurell suffered were caused by your blow.
42I accept the submission that the charge of the theft of the petrol is at the lower end of the scale for that offence.
43I accept also your lawyer’s characterisation of your prospects of rehabilitation as not to the level of “good” but also not hopeless. If you can work on addressing your mental health, and also your drug use, then your prospects of staying out of trouble will increase significantly. Such work is not easy, and is prone to setbacks, but if you do not make those efforts, there is a very good chance you will be before the courts again.
44Another relevant factor is the sentence I imposed on your co-offender, Mr Sozmen. He pleaded guilty to a number of charges from this incident, and was sentenced as follows:
(a) armed robbery arising from his taking of Mr Muzzolini’s car – 3 years 6 months’ imprisonment;
(b) intentionally causing injury based upon his blows inflicted on Mr Eurell – 6 months
(c) handling stolen goods in respect to the RAV4 – 6 months
(d) theft of petrol and theft Mr Muzzolini’s wallet, 1 month on each charge
(e) possession of a controlled weapon, being a pocket knife – 1 month imprisonment.
45There are a number of similarities, but also differences between you. Like you Mr Sozmen suffers from PTSD following his time in the army in Turkey. He too is a drug user. His criminal history is more extensive than yours. He pleaded guilty to the charge of intentionally causing injury to Mr Eurell, which you did not, although I note that you are each being sentenced for your own blows, not on the basis of complicity with each other.
46Sentences:
§On the charge of intentionally causing injury six months’ imprisonment;
§On the charge of theft of the petrol 28 days’ imprisonment;
§On the charges of possession of a controlled weapon, being Charge 8 the baton and Charge 9 the box cutter, I impose an aggregate sentence of 35 days; and
§On the summary charge of unlicensed driving I impose a penalty of 2 months.
47I order that 14 days on the charge of theft and 14 days of the aggregate sentence on the controlled weapon charges be served cumulatively upon each other and on the sentence on the charge of intentionally causing injury. This results in a total effective sentence of 6 months’ and 28 days’ imprisonment.
48As to pre-sentence detention you have 245 days available. I will declare 210 days of that as pre-sentence detention, which make up 6 months and 28 days from today.
49I am required pursuant to s6AAA to declare what sentences I would have imposed but for the plea of guilty. This is difficult in view of the charge of intentionally causing injury not falling within that, but I do say that the combined sentences on the charges to which you have pleaded guilty, taking into account cumulation, would have been four months, of which two months would have been accumulated on the charge of intentionally causing injury.
50I will not make an order suspending your licence as this will have no actual effect given you will still be on remand for outstanding offences on the expiry of this sentence.
51And I will make the forfeiture orders as sought by and agreed upon between the parties.
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