Director of Public Prosecutions v Daniel

[2023] VCC 1943

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00070
CR-23-00537
CR-23-00014

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL DANIEL
AHMET CEYLAN

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF SENTENCE:	10 October 2023
CASE MAY BE CITED AS:	DPP v Daniel & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1943

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – home invasion – people present - drug use – pre-planning - deportation – poor prospects of rehabilitation- category 2 offence

Legislation Cited:      Sentencing Act 1991 (Vic); Migration Act 1958 (Cth),

Cases Cited:Worboyes v R [2021] VSCA 169: [2007] VSCA 102

Sentence:                  3 years and 2 months imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. McVean	Solicitor for the Office of Public Prosecutions
For the Offender Daniel For the Offender Ceylan	Mr R. Thyssen Mr C. Nikakis	Ann Valos Criminal Law Haines & Polites Lawyers

HIS HONOUR:

1Samuel Daniel and Ahmet Ceylan, you have both pleaded guilty to a charge of home invasion, for which the maximum penalty is 25 years' imprisonment.  You, Mr Daniel, have also pleaded to a charge of possessing a small amount of cannabis, for which the maximum penalty is five penalty units.

2On 4 September 2022, Ms Nguyen and her younger sister were asleep in their house at Sunshine North.  Ms Nguyen was 24 years old at that time and her sister was 15 years old.  They lived at Sunshine North, with their parents.  On that evening, their parents were not home.

3At around 4.42 am, you, Mr Daniel, and you, Mr Ceylan, arrived at that address in a blue Mazda motor vehicle. You parked at the front of the Nguyen’s home.  At around 4.54 am, you, Mr Daniel, attempted to open the front gates at that address.  You were not able to open the gate, and you returned to the Mazda and drove away.  At around 5 am, the two of you returned to the home on foot and walked around the address.  You then left and returned again soon after in the Mazda.

4At around 5.08 am, you, Mr Daniel, jumped over the front gate and walked through a side gate into the back of that address.  You tried unsuccessfully to enter the house through a rear sliding door.  You located a sliding window which you forced open, and you pulled yourself into the house.

5At about 5.30 am, Ms Nguyen, upstairs, heard a sound and called Triple 0.  She checked the security cameras in the house using her mobile phone.  From the phone, she was able to turn on the lights connected to the camera which are outside the main bedroom in the hallway.  She stayed in the bedroom upstairs and monitored the cameras via a streaming application on her mobile phone.

6She saw you, Mr Daniel, in the downstairs lounge room.  You froze when the lights went on upstairs, but you continued upstairs to the master bedroom, which you entered.  You rummaged through drawers and cupboards and left the room wearing a dark puffer jacket belonging to one of the parents.

7The doorbell then rang, and Ms Nguyen saw you, Mr Ceylan, enter the house.  Mr Daniel let you in.  The two of you went upstairs.

8Ms Nguyen saw you on camera open her sister's bedroom door and shine a torch around the room.  The two of you then closed the door.

9You, Mr Daniel, searched through items on the staircase landing and in the master bedroom, while you, Mr Ceylan, acted as a lookout at the top of the stairs.

10At around 5.36 am, police arrived at the Sunshine North address with their lights activated.  You, Mr Ceylan, noticed the police and told Mr Daniel.  You returned downstairs and walked through the lounge room to the kitchen and sunroom at the back of the house.

11You, Mr Daniel, left the house via a back sliding door, ran through the back yard, and jumped the back fence into the rear property.

12Ms Nguyen observed you, Mr Ceylan, run from the sunroom to the garage through an open sliding door.  You got inside her unlocked Honda Civic and attempted to hide in the back seat.

13Ms Nguyen told the police that you, Mr Ceylan, were in her car in the garage.

14The younger Nguyen sister was asleep throughout the incident.

15Mr Ceylan, you were found in the back seat of the Honda Civic in the garage.  Police arrested you.

16Approximately an hour later, at 6.30 am, police found you, Mr Daniel, inside the gate at a neighbouring property.  You jumped the fence into the next property over when police shouted at you.  Police followed you into that address where you were arrested.

17You were then taken to Sunshine Police Station for an interview.

18Mr Daniel, you were wearing a camouflage cap with an American flag motif, a face covering, a black Nike zip-up jacket, white gloves and dark sneakers.  You, Mr Ceylan, were wearing a Macpac puffer jacket, a black hooded jumper, a red bandanna as a face covering, jeans and sneakers.

19You, Mr Ceylan, were deemed unfit for interview due to your drug affected state.  Before interview an independent third person was arranged presumably because of concerns about an intellectual disability but that is not clear.  Eventually when you were interviewed, you made no comment to all questions.

20You, Mr Daniel gave an account.  You accepted that you were located by police in the Sunshine North area but denied ever entering the Nguyen’s premises.

21You both pleaded guilty at a case conference on 27 January 2023.  This was a plea at the earliest opportunity. I accept that by pleading guilty you have demonstrated a willingness to facilitate the course of justice. It seems to me the guilty plea largely reflects the overwhelming nature of the case against the two of you rather than remorse, but I sentence you on the basis it indicates some remorse. No submission was made about remorse in respect of either of you. You have saved the court and the prosecution the time and expense of a contested trial.  Your guilty pleas spare the witnesses the experience of reliving these events during evidence at a trial.  The utilitarian value of your plea is heightened in the current circumstances where this court still faces a backlog of trials because of the suspension of its operations during the pandemic and I apply the principles set out in the case Worboyes[1].

[1] Worboyes v R [2021] VSCA 169

22You have both been in custody since your arrest, making a total of 401 days of pre-sentence detention.

23Both Nguyen sisters made victim impact statements, which were read by the prosecutor at the plea hearing.

24Ms Nguyen describes feeling emotional distress in the form of paranoia, anxiety and fear.  This has affected her lifestyle.  Sights and sounds remind her of the incident.  It has affected her schooling.

25The younger Nguyen sister says she no longer feels safe in her home or her car.  She had many sleepless nights after this incident.  When she walks past the window you entered, Mr Daniel, she is reminded of your offending, and she suffers anxiety.  She feels paranoid at night and when she enters her car.  She is worried about her sister constantly when she leaves home.  She says her safe spaces, her home and car, no longer feel safe. Since the event, she has had difficulty socialising.  She feels unsafe to venture out by herself due to panic and anxiety.

26The impact on the victims has been significant and is a matter of some importance in deciding the appropriate sentence in this case.

27Home invasion is a serious offence, carrying a maximum penalty of 25 years. It is also a category 2 offence, which means I must impose a sentence of imprisonment, excluding a combination sentence of imprisonment and a Community Correction Order, unless I am satisfied that one of the exceptions in s5(2H) of the Sentencing Act is applicable. No argument is made in this case that any of the exceptions in s5(2H) apply.

28In this case, the two of you entered a residential property in the early hours of the morning when it was highly likely there would be people inside asleep.  You, Mr Daniel, forced your way into the premises through the window.   I think the two of you thought non-one was home. Why else would Mr Ceylan have rung the doorbell to be let in? However, when you became aware that there were, in fact, people home, you did not immediately leave, you continued to search the property.  The victims in this case were two young women home alone.  Offending such as this compromises the feeling of security and safety which people are entitled to feel in their own homes and particularly when they are asleep at night. The effect of your offending is apparent from the victim impact statements in this case.

29There was pre-planning involved in this offence in that the two of you attended initially and then returned approximately 10 minutes later to further assess whether you could get into the property.  You also both wore face coverings to hide your identities.  In both your cases your culpability for this deliberate and planned conduct is high, particularly having regard to the lengthy criminal histories that you both have.

30Your intent was to steal which is less serious intent than an intent to assault.  Although you were inside the house for a relatively short time, you left because the police arrived. Fortunately, there was no confrontational behaviour inside the house.  There were some amateurish aspects to the offending such as ringing the doorbell.  Your efforts to escape were doomed to fail from the outset.

31The offence of home invasion of course covers a wide array of incursions into people's properties some of which involve brazen and terrifying entries where the offenders are intent on significant violence and often associated serious thefts. This does fall to the lower end of the spectrum for a home invasion offence and in a sense, it is an example of what is often charged as a residential burglary or an aggravated burglary. But this was a serious offence and burglary is an offence you have both been convicted of in the past.  

32You both have substantial prior convictions.

33You, Mr Ceylan, spent a lengthy period in prison in your twenties for culpable driving.  On my calculations, you would have been eligible for parole in 2008.  You managed to stay out of trouble for some time until 2015 when you were before the court for multiple dishonesty offences, mostly deceptions, which resulted in a Community Correction Order.  It seems you eventually breached that order. Since 2015, your offending has been consistent.  You have received gaol sentences on several occasions.  Much of your offending has been for dishonesty.  You have prior convictions for burglary.  You have received Community Correction Orders in the past which you have breached.

34You are now an older offender who has been in the criminal justice system for many years.  The courts have attempted to assist your rehabilitation through community-based dispositions, but this has not been successful.  Your prior convictions are relevant to the assessment of your prospects of rehabilitation, your moral culpability, specific deterrence, and community protection.

35Mr Daniel, you, too, have a very substantial criminal history.  You have been consistently before the courts for 20 years.  You have multiple prior convictions for burglary.  You have numerous other prior convictions for dishonesty offending.  You have received Community Correction Orders on occasions, but you have breached those orders.  You have also received prison sentences as well for dishonesty offending and for other offences.

36As with Mr Ceylan, your prior convictions are relevant to the assessment of your prospects of rehabilitation, your moral culpability, specific deterrence and community protection.  You, too, are a mature offender who has not responded to any dispositions the court has imposed over a lengthy period.

Personal circumstances – Ahmet Ceylan

37You, Mr Ceylan, were born in Turkey.  You do not remember your father.  He died in a motor vehicle accident when you were 4 years old. You have two brothers.  Your uncle married your mother after the death of your father.  They then had two children together.   You moved to Australia when you were 14 years old with your grandmother.  Eventually you became a permanent resident.  The reports indicate that your mother was in Australia for a while but went back to Austria where she and your uncle had moved before leaving Turkey.

38Your secondary schooling commenced in Australia, but you also returned to Austria to be with your parents as you were not coping.  Apparently, your family life was dysfunctional, and you then returned back to Australia after 12 months.  You have from time to time returned to Turkey and Austria.  Your lifestyle has been somewhat itinerant since your young adulthood.

39Due to significant conflict at home between your stepfather and mother, you left when you were 18 years old. You started abusing alcohol and illicit drugs, especially Ice and heroin.

40You have had some occasional unskilled employment.

41The culpable driving incident occurred in 2001.  Your counsel, Mr Nikakis, told me that the culpable driving was based on alcohol consumption.  You have a history of heavy alcohol use as well as drug use.

42You apparently have a psychiatric history.  There is a suggestion of schizophrenia in the Forensicare report written in May 2016 relating to earlier offences.  At that time, you were said to have active symptoms of paranoid schizophrenia.  However, it is not suggested that you were psychotic at the time of these offences or that any of the Verdins principles apply to you.[2]

[2] R v Verdins [2007] VSCA 102

43Your counsel, Mr Nikakis, submitted that your main problem has been with heroin and that your recent offending has stemmed from your ongoing use of that drug.  At the time of these offences, as I understand it you were under the influence of Xanax.

44I was also provided with a forensic disability assessment report from 2020.  The purpose of that report was to determine whether you have an intellectual disability.  The report concludes that you have deficits in cognitive functioning, but no significant deficits in adaptive behaviour and you did not satisfy the criteria for an intellectual disability.

45The report also refers to a history of schizophrenia and being medicated with Seroquel, Olanzapine and Mirtazapine for treatment for your mental health conditions.

46Although there is no submission that Verdins principles apply it seems clear that you have had mental health difficulties and your cognitive abilities are at the lower end of the spectrum.[3]  These matters are part of your background circumstances that help to explain the trajectory of your life and your inability to stop using drugs and rehabilitate.   

[3] Ibid.

47Your prospects of rehabilitation seem to me to be poor to guarded at best but there is always hope that you can move away from drugs and criminality. At least in prison you have been taking Buprenorphine to address you heroin addiction.

Personal circumstances – Samuel Daniel

48Mr Daniel, you were born in Egypt to a Sudanese father and an Egyptian mother.  You are now 39 years old.  Your family moved from Egypt to Toowoomba in Queensland in 1999.

49You have three siblings: an older brother who is a lawyer in Melbourne; a sister who lives in Perth; and a younger brother who lives in Queensland.  Your older brother attended court to support you and gave some evidence about your immigration status.  Your mother now lives in Perth. Your father died some time ago. He was an alcoholic, and this caused enormous disruption in your family. 

50You left the family home at the age of 14 due to your father's alcohol abuse.  You moved from Toowoomba to Brisbane and worked at a meatworks and also as a cleaner. 

51You moved to Melbourne in 2007.  You became a heavy drug user and associated with a negative peer group.  I was told your drug use is the cause of your multiple prior convictions.

52Your background was plainly a difficult one which explains to some extent how you became immersed in drugs and crime.

53You have a partner.  Her name is Hellena Athuai, and you have three children to her.  That relationship is described as on and off.  You hope one day to become a proper father and partner and cease using drugs. 

54You are not a citizen of Australia.  Therefore, you are at significant risk of being deported.  You were sentenced in 2019 to a period of two years' imprisonment with a non-parole period of 12 months. Your brother gave evidence that this triggered the automatic cancellation provisions of your visa under the Migration Act 1958 (Cth), and your visa was cancelled. Representations were made and that cancellation was revoked. The sentence I impose will trigger those provisions again. It seems to me deportation is probable.

55I take into account the prospect of deportation.  It will increase the burden of your imprisonment.  You will serve your sentence knowing that the likelihood is you will be deported at the end of your sentence; aware that you may not be granted parole because of your status; and that a period in immigration detention is possible before deportation.  Additionally, you have now been in this country for a long time, and if you are deported you will be sent to a country with which you have no meaningful connection, leaving behind your family in this country.  I take that into account as an additional punitive consequence.

56Like Mr Ceylan given your significant criminal history over a long period I regard your prospects of rehabilitation as poor to guarded.

Parity

57There is no distinction to be made between the two of you in your culpability and participation in this offending. You, Mr Daniel, have more significant prior convictions certainly for this type of offending but the risk of deportation and its impact on the burden of your imprisonment is a significant matter in mitigation not present in your case Mr Ceylan. Otherwise, in my opinion your personal circumstances are similar in their relevance to sentencing.  In the end, I have formed the view that you should both receive the same sentence.

Principles  

58The purposes for which a court may impose sentence are just punishment, deterrence,  both specific and general denunciation of your actions and protection of the community.  All those purposes are relevant in this case. I must also seek to ensure as far as possible that you, as offenders, are rehabilitated and reintegrated into society. 

Sentence

59The sentences I impose in this care are for the offence of home invasion you are both sentenced to a period of imprisonment of 3 years and 2 months.

60I fix a minimum non-parole period of 2 years.

61I declare 401 days to be deducted from this sentence pursuant to s18 of the Sentencing Act.

62Pursuant to s6AAA I indicate that but for your plea of guilty I would have imposed a sentence of 4 years and 4 months with a minimum non-parole period of 3 years and 2 months.

63I make the ancillary orders sought in this case.

64In relation to possession of cannabis for Mr Daniel, convicted and fined $100.

65Those are the orders that I make.  I will adjourn.

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