Director of Public Prosecutions v Demir

[2020] VCC 1922

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01004

DIRECTOR OF PUBLIC PROSECUTIONS

v

OZQUR DEMIR

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September and 18 November 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	DPP v Demir
MEDIUM NEUTRAL CITATION:	[2020] VCC 1922

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Attempted armed robbery – Summary offences unlicensed driving, use unregistered vehicle, unlawful assault and commit indictable offence whilst on bail – No secret made of identity at the time of offending – Methamphetamine substance abuse disorder – Possible psychosis at time of offending – Lacks insight into offending and victim empathy – Adjustment disorder with depression – No Verdins considerations – Reluctant to undergo Community Corrections Order

Sentence:Convicted and sentenced to Total Effective Sentence of 3 years and 2 months’ imprisonment with non-parole period of 2 years’ imprisonment – 210 days’ pre-sentence detention declared as having already been served – s. 6AAA Sentencing Act declaration – Ancillary orders disposal and licence

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Ferrari	Solicitor for Public Prosecutions
For the Accused	Mr S. Parker	Theo Magazis Lawyers

HER HONOUR: 

1       Ozqur Demir, you have pleaded guilty to one charge of attempted armed robbery, which has a maximum penalty of 20 years' imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence and is one of the matters which I must take into account when sentencing you.

2       Further, you have pleaded guilty to unlicensed driving, which has a maximum penalty of 10 penalty units or one month's imprisonment; use unregistered vehicle, which has a maximum penalty of 50 penalty units for a second or subsequent offence; and unlawful assault, which has a maximum penalty of 15 penalty units or three months' imprisonment.  You are also to be dealt with for the summary offence of committing an indictable offence whilst on bail, which has a maximum penalty of 30 penalty units or three months' imprisonment. 

3       On 1 May 2020 you drove a car which was unregistered.  Your driver's licence had expired four days before to this.  This conduct gives rise to
Summary Charges 1 and 2.

4       At about 2.51 am on the day of the attempted armed robbery, you drove into a BP service station in Sydney Road, Fawkner.  You asked the store attendant to give you a pack of a particular brand of cigarettes.  You were unable to pay, so the store attendant did not hand these to you.  You then yelled at the store attendant, calling him a 'fucking dog'.  You left the store and returned to your car.  The store attendant saw you pull out a large knife.  You waved the knife around and yelled at the store attendant, as I said, calling him a 'fucking dog'.  This conduct gives rise to Summary Charge 9.

5       You then left the service station and drove to another service station in Sydney Road, Coburg North.  You parked your car in the forecourt of that service station and banged on the glass doors of the store.  The store attendant, Mr Bheemreddy opened the glass door to let you in as he thought it was an emergency.

6       You entered the store and approached Mr Bheemreddy, who was at the counter.  As you approached the victim you grabbed a big knife from your back pants’ pocket and held it in front of you saying to the victim 'give me Dunhill 25's'.  Mr Bheemreddy refused to give you the cigarettes until you threw away the knife.  You said 'you want to get stabbed for it?  For a packet of cigarettes?'  You refused to throw away the knife and instead, you threw your wallet towards the victim, telling him to call the police.  This conduct gives rise to Charge 1 on the Indictment, attempted armed robbery.

7       You continued to demand cigarettes from the victim for about two minutes whilst holding the knife.  You said to the Victim 'you want me to stab you for a … cigarette … and jump over the fence?'  However, Mr Bheemreddy continued to refuse to hand over the cigarettes and said to you 'I'm frightened… I'm afraid of you'.  You then walked away from the console area and grabbed random store items, including a fuel can, boxes of tissues and packets of chips.  The victim asked you to stop doing this so he could sell you the cigarettes.  You refused to throw away the knife or to stop grabbing the items, and you also refused to leave the store.

8       After about five or six minutes the victim pressed the duress button inside the console area and this activated a smoke machine and also locked the front door, trapping you inside. 

9       Subsequently you were arrested.

10     As you were speaking in an incoherent fashion and behaving erratically you were taken to hospital for a mental health assessment.  After about 10 hours, a medical officer advised police that there were no medical concerns and you were discharged from the hospital.

11     After this you were taken to the Fawkner police station for interview.  You appeared to be drug affected and sleepy.  You told police you did not wish to be interviewed and police contacted a forensic medical officer who advised that you ought not be interviewed.  Therefore, a record of interview was not conducted at that time, or subsequently.

12     You committed the attempted armed robbery whilst on bail, having been granted bail at the Broadmeadows police station on 4 April 2020 in relation to charges of possess drug, use methylamphetamine and criminal damage.

13     Mr Demir your offending is serious and calls for a punishment which is just in all of the circumstances.  Your conduct must be firmly denounced.

14     You behaved in a most dangerous and frightening manner on the night of the offending, subjecting the victim of the attempted armed robbery to a traumatic ordeal.  Simply because he did not give into your demands did not mean that he was not frightened by what you were doing.  Indeed, he told you that he was frightened, but it was his courage that prompted him to resist your most threatening behaviour.  It is an aggravating feature of your offending that you were subject to bail at the time that you offended.  This is a separate summary offence in respect of committing an offence whilst on bail, but I accept that you may be sentenced in respect of this offence and on the basis of the aggravating feature to which I have just referred without exposing you to the prohibition against double punishment.  Having said this, I must still apply the principle of totality and I have done so.

15     In assessing the overall seriousness of your offending, I have also taken into account that very soon after you made the demand you threw your wallet at the victim and you also made no secret of your identity at any time.  Your conduct was self-defeating in many ways, albeit that it was most frightening for the victim.  The fact that you were so drug affected and behaved as you did, although self-defeating, also highlights the dangerousness of someone like you being so intoxicated by drugs.  I make it clear that I have not treated your drug taking as an aggravating feature, lest it be said otherwise.

16     There is no victim impact statement but it takes no imagination to know that the victim would have been traumatised by your offending – it is to be hoped that he has been able to recover since it occurred.  The remarks that you made in the community corrections report or in the community corrections assessment which are contained in the report in relation to the victim are most unfortunate and reveal a lack of insight or empathy in respect of the likely impact upon him.

17     I accept that at the time of the offending, as I have said, you were affected by the drug ice, but this is not a mitigating factor in your case.  As I have said, it is not an aggravating feature either, but I put you on notice that there is a distinct connection between you taking drugs and committing criminal offences.  So, if you decide to take drugs in the future and then commit a criminal offence your decision to take drugs may well be viewed as an aggravating feature in any future court proceedings.

18     As the learned prosecutor set out in her most helpful opening, your criminal history spans from 22 March 2004 to 11 December 2019, with the most relevant matters including:

19     On 13 April 2004 you were convicted of driving whilst disqualified and using unregistered motor vehicle and you were sentenced to an aggregate term of two months' imprisonment to be served by way of an intensive corrections order.  You were fined $500.

20     On 30 September 2008 you were dealt with for driving whilst your licence was suspended.  You were sentenced to two months' imprisonment which was wholly suspended and you were fined $1,500.  All licences were cancelled and you were disqualified from driving for 12 months.

21     On 5 January 2011 you were convicted of driving whilst your licence was suspended and you were sentenced to 42 days' imprisonment to be served by way of an intensive corrections order.  Your driving licence was suspended for three months and you were fined $300.

22     On 26 February 2019 you were dealt with for intentionally damaging property and sentenced to one day's imprisonment.

23     On 11 December 2019 you were convicted of theft from a shop, criminal damage, intentionally damaging property, using an unregistered motor vehicle, wilfully damaging property and committing an indictable offence whilst on bail.  You were sentenced to an aggregate term of 90 days' imprisonment.

24     As Ms Ferrari observed and your Counsel also pointed out, there was a hiatus of about eight years between offending for which you were dealt with in January 2011 and your next court appearance in January 2019.  However, the matters for which you came before the courts in 2019 have some relevance to the attempted armed robbery for which I now sentence you, albeit that you have never committed an offence such as this in the past.  I am concerned that your criminal conduct may well be escalating in view of the matters for which I now sentence you.

25     Although there are some underlying concerns in relation to whether you were and are suffering from schizophrenia, this has not been confirmed and it was not said by your Counsel that any impairment of mental function contributed to the offending for which I now sentence you.  However, I take into account the material placed before me in relation to your mental health in a general way in sentencing you.

26     According to Dr Cidoni, psychiatrist, at the time of the offending you were most likely suffering from methamphetamine-induced psychosis which was suggested by the resolution of symptoms in the absence of drug use.  However, Dr Cidoni was unable to rule out an underlying schizophrenic illness and he considered it would be important to follow up in relation to this aspect in any mental health assessment in the community, or in your case, it may well be that this ought to occur whilst you are in prison.

27     Dr Cidoni was of the view that you have suffered from a methamphetamine use disorder, as I have said, and when he interviewed you on 21 July 2020, he said you were not presenting with any significant history of psychosis.  He said that you had associated depression which fitted the pattern of an adjustment disorder with depression.  He said that you needed psychological treatment to deal with issues of self-esteem and ongoing specific treatment through substance-abuse services.

28     He said that while you described voices at the time of the offending, you lacked recollection of detail and Dr Cidoni assumed that due to your rapid discharge from the emergency department and lack of antipsychotic treatment in custody, you were not viewed to be in a state of acute psychosis.  He said that the effect of amphetamine intoxication in terms of impulsivity and poor judgement was likely to be a factor. 

29     He also observed that you appeared to be coping well in prison and this appeared to be confirmed in your report to the community corrections assessing officer more recently.  Dr Cidoni was of the view that you had struggled in the community and that housing services ought be involved upon your release in order to ensure that you had some stability in this regard, and that it was also necessary for you to engage in appropriate psychological treatment and receive specialist substance-abuse treatment.

30     It appears that you have had a number of psychiatric admissions to the Northern Hospital from 2012 onwards, apparently suffering from episodes of drug-induced psychosis. 

31     I understand that you are willing to take appropriate prescribed medication if this were required of you by treating professionals.

32     In sentencing you, I have also considered the Justice Health report dated
18 November 2019.  Although the report is at a time which is closer to the period when you were experiencing drug-induced psychosis, it makes for most concerning reading in relation to your attitude towards others, especially members of your family.  At that time there was an intervention order in place from your wife which had been made on 22 March 2019 and a record of you breaching an intervention order in relation to your daughter on 1 March 2019.

33     I am not dealing with you in respect of violence towards family members, however your conduct in relation to the attempted armed robbery which occurred about six months after that report, gives me cause for concern when considering your prospects of rehabilitation and protection of the community. 

34     In your favour, you pleaded guilty at the earliest opportunity, which entitles you to a significant discount in the sentence which you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.  Your counsel submitted that the early plea of guilty could also reflect remorse in your case.  However, your remarks to the community corrections assessing officer last month are not consistent with a person who is feeling remorseful for what they have done.  You told the assessing officer that you thought the victim would feel good about the way in which you treated him and made other remarks which reflected a lack of insight into the seriousness of your offending and a lack of remorse or empathy for the victim.

35     In sentencing you I take into account your background.

36     You were born in Turkey and your parents separated when you were only four years old.  Initially after their separation you lived with your maternal grandparents.  You went to school until you were 10 or 11 years old, but dropped out when you were in year four.  You then helped your grandparents on their farm.

37     Sadly for you, you did not have much contact with your parents.  Your contact with your father was minimal.  When you were 14 years old you moved to Australia to live with your mother.  She had re-partnered and was pregnant.  You commenced school at the local high school and had a most difficult time there, especially as you did not speak or understand English.  You left school partway through year 10, having been suspended often for fighting, which appears to have arisen in the context of you being teased and treated poorly by other students.

38     I was told that in 2010 you married however, the marriage did not flourish and despite your attempts to salvage it, the relationship ended several years later.  You have a daughter from that relationship who is now eight years old.  Your former wife and child live in Australia.

39     You acquired a skill as a plasterer and ran a plastering business for a time, employing a number of people.  You were a good employer but the business struggled to the point where you were unable to meet all the expenses.  I was told that you used your own credit card in order to pay wages to your employees, but ultimately you were unable to keep the business going.

40     I was told that before the offending you had used ice for a period of about 10 years, although you abstained from use for about two years following the birth of your child.  You told Dr Cidoni that you had used amphetamine in the past from age 24 and then from age 28, using .5 grams of methamphetamine or ice weekly, and in the last one or two years of having taken up to .5 grams per day.

41     You also told him that you had consumed alcohol once to twice a week in the past, but since separation you had imbibed six stubbies of beer three times a week.  You denied experiencing any withdrawal symptoms or intolerance.  You reported that you have had not drug or alcohol treatment.

42     In the past it seems however that there has been the opportunity for these issues to be addressed when one looks at your criminal history, but it is evident that you have failed to take advantage of those opportunities.

43     I understand that leading up to the offence you had spent three days at a motel, but before this you had been at a share house which you were required to leave due to poor behaviour, and you also spent time living in your car.

44     As your Counsel submitted, your ability to rehabilitate is largely linked with your abstinence from drugs, obtaining stable accommodation and accepting appropriate exploration and, if necessary, treatment in relation to underlying mental health issues.

45     I can tell you that in view of your background, the difficulties you had in your childhood and other issues, like many people unfortunately in your position, a good deal of help in this regard may well be required and there is no shame in it, it is just something that you need to address.

46     I was told that you are not taking drugs whilst in custody – I was not provided with any urine screens to support this – however I accept that this is the case.  The other side of this is that your most unfortunate attitude towards the community corrections assessment last month cannot be sheeted home to drug abuse.  I had ordered an assessment to be conducted with a view to seeing whether it was appropriate to impose a community corrections order on you in combination with a gaol term.  However, you put an end to the interview with the community corrections officer rather quickly, indicating that you would prefer to 'relax' in gaol and that you found aspects of previous community corrections' dispositions boring.  You have also indicated that you have no issue in relation to your mental health and so it does concern me that you may be resistant to any future attempts to help you in this way.  Whilst I accept that you told Dr Cidoni that you are willing to take appropriate medication, and I also accept that you were taking Olanzapine a number of months ago, successful treatment of you overall depends on your co-operation more fully with relevant health professionals so you can get to the bottom of what is going on with you.

47     I was told that whilst on remand you have had to undergo 17 days in isolation due to COVID-19 and that you have been deprived of programs whilst on remand.  Originally you were doing some sheet metal work at the remand centre and you were then moved to the laundry.  You have had no contact with anyone other than your lawyers since being imprisoned.  Sadly, it seems that this may well be more to do with your social isolation when you were in the community rather than the impact of COVID-19 restrictions.  However, I have factored in that your time in custody thus far has been harder than it might otherwise have been because of these matters, and I have also taken into account that this is the lengthiest period of incarceration for you.  It was not submitted that there are any Verdins' considerations in your case, such as time being harder due to any impairment of mental function.

48     In assessing your prospects of rehabilitation, I have also factored in that you were able to behave in the community for a period of eight years before returning to offending.  However, as I have said, I must also be mindful of the fact that your offending appears to have escalated in recent times.

49     In view of all the relevant circumstances, I assess your prospects of rehabilitation as guarded.  I must place strong weight on general deterrence to deter others from behaving as you have, and in view of your attitude towards rehabilitation as currently expressed, your struggles with ice addiction, your lack of community support and resistance towards exploration of mental health issues, I place fairly strong weight on specific deterrence and protection of the community.

50     Your counsel submitted that it would be in the best interests of the community, and in your best interests, if I were to impose a gaol term which involved a significant period on parole.  It was agreed by the parties, after the community corrections assessment report viewed you unsuitable, that the only appropriate penalty would be a term of imprisonment with a non-parole period.

51     There is nothing in your case in my view which would warrant a lesser non-parole period than another person in a similar position, however I do not propose to place you in a worse position than another in all the relevant circumstances of your case.

52     You are convicted of the offence on the indictment and the summary offences:

53     I make the disposal order sought by the prosecution and which is not opposed by you.

54     I order that your driver's license be cancelled and you be disqualified from driving for a period of 12 months.

55     In relation to the charge on the Indictment, you are sentenced to three years' imprisonment.

56     In relation to Summary Charge 1 – unlicensed driving – you are sentenced to one month's imprisonment and in relation to Charge 9 – unlawful assault – you are sentenced to two months' imprisonment.  In relation to Charge 8 – committing an offence whilst on bail – you are sentenced to two months' imprisonment and in relation to Charge 2 – using unregistered motor vehicle on a highway – you are fined $200 and I grant you a stay of six months to pay the fine.

57     I direct that one month from the sentence on Summary Charge 8 and one month from the sentence on Charge 9 be served cumulatively with each other and with the sentence for attempted armed robbery, producing a total effective sentence of three years two months' imprisonment and I direct that you serve two years before becoming eligible for parole.

58     I declare that you have already served 210 days by way of pre-sentence detention.

59     If not for your pleas of guilty I would have sentenced you to four years six months' imprisonment, with a non-parole period of three years.

60     Counsel, anything arising from those sentencing remarks?

61     MS FERRARI:  Nothing arising, thank you, Your Honour.

62     MR PARKER:  No, Your Honour.

63     HER HONOUR:  Very well, Mr Parker, did you want to have a word with your client once I adjourn the court?

64     MR PARKER:  If that is suitable to the court, yes, Your Honour.

65     HER HONOUR:  All right, yes, thank you.  Thank you for your assistance counsel, I will now adjourn the court but Mr Taylor if you could leave the transmission on for Mr Demir and Mr Parker.  Mr Parker could you communicate via the chat facility to let Mr Taylor know when he needs to turn of the transmission.

66     MR PARKER:  Yes, Your Honour.

67     HER HONOUR:  Thank you, we will now adjourn.

68     MS FERRARI:  As Your Honour pleases.

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