Director of Public Prosecutions v Demirkiran

[2020] VCC 1777

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00222

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEDA DEMIRKIRAN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 November 2020
CASE MAY BE CITED AS:	DPP v DEMIRKIRAN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1777

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Murphy	Office of Public Prosecutions
For the Accused	Mr R. Melasecca

HIS HONOUR:

1Seda Demirkiran, you are to be sentenced for one charge of obtaining by deception a financial advantage from the Commonwealth Department of Human Services, an offence under s.134.2 of the Commonwealth Criminal Code.  The maximum sentence is 10 years' imprisonment.

2You pleaded guilty before me on 21 October.  When interviewed by Department of Human Service officers on 8 February 2019, you answered questions and made a number of admissions.  However, a number of your answers can be seen as understating the intention and criminality of your offence.  That became part of the focus of expert psychiatric and psychological evidence before me.  Committal went by hand-up brief, on 12 February 2020,  after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court. 

3You receive the benefit of your plea of guilty and that level of cooperation both from an early time.  Your plea has facilitated the interests of justice and accepted responsibility.  It is a formal expression of remorse. 

4At your plea hearing,  which ran on the 21st and 27th of October, Mr Murphy for the Crown tendered a written prosecution opening and chronology.  He provided an outline of prosecution plea submissions and a table of comparative case summaries. 

5Mr Melasecca, for you, tendered forensic psychological reports of Luke Armstrong, related to you and both of your parents  (they are dated 10 October and 13 December 2019);  the forensic psychiatric report of Dr Adam Deacon dated 12 October 2020;  the report of treating psychologist Tracy Allen dated 13 October 2020;  and the letter of your general practitioner, Dr Duncan Savery, with a history of prescribed medications.  It is dated 6 September 2018.  Psychologist Mr Armstrong and
Dr Deacon were called to give evidence before me.  Mr Melasecca provided an outline of plea submissions and a further submissions document responding to the prosecution outline.  He also provided a “Chronology of Commercial Dealings”  with your family's Keysborough home.

6On 27 October, Mr Melasecca tendered additional materials related to your employment performance at the Commonwealth and National Australia Banks.

7The circumstances of your offending are comprehensively set out in the tendered prosecution opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

8Between January 2014 and August 2018, a period of just over four and a half years, you failed to advise and provided false information about your employment, and therefore income, whilst receiving Department of Human Services payments as caregiver to your mother.  You were aged 21 to 26 years of age.  Bearing in mind some entitlement during the period and a statutory formula to reduce payments in accordance with declared income, you obtained falsely a total of $88,297.29 over the time.  The offending had the following features. 

1.Your mother had suffered poor health over most of her life.  This included addiction to opioids.  In your mid to late teenage, there was a marked deterioration.  Symptoms included loss of finger and toenails and her teeth;  also, problems with her spine, heart, kidney and liver.  At one point she was hospitalised for about nine months.  The diagnosis was uncertain; but, ultimately, a form of Golden Staph was suspected.  Dr Deacon's report states a diagnosis of Staph spinal infection.  I accept that she was seriously ill and disabled.

2.          You were or become her primary carer and originally your claim in September 2013 for carer payments was legitimate.  It was granted.  You began and continued to receive what might be termed full payments from then until August 2018.

3.However, from January of 2014 you failed as required to advise of employment and made a number of misrepresentations to the Department about your employment status and income.

4.Between that time and August 2018, you were employed in a total of four jobs in administrative and/or finance positions.  Between August 2015 and September 2018, you were employed by the National Australia Bank.  Average annual salary was about $75,000.

5A table at paragraph 34 of the Crown opening indicates a total effective under declaration of income at $275 to $280,000 and thereby overpayment of benefits at $88,297.29.

6.Misrepresentation to the Department included falsely stating in October 2015 that you did not commence employment, that is, in order to achieve reinstatement of payments after a period of suspension;  and also false declaration in a Department eligibility review of your payments in November 2016. 

7.Raised by you in the record of interview, you properly declared income to the Australian Tax Office over the period.  It was because of a data match with the Australian Tax Office,  in April 2018, that your offending was investigated and discovered.  You have repaid modestly some of the money; that is by means of regular payments to an authorised collection agent.  The amount repaid is approximately and/or short of $800.

9You are now 28 years of age and have no prior convictions.  You are employed with Toyota Finance, describing yourself as a Financial Analyst.  Both of your parents come from Turkey.  You were born in Australia.  You have a slightly older brother.  You lived in Tatura until 11 years, when the family moved to Melbourne.  You performed well at school, also achieving well in public speaking and sport.  You represented Australia in Taekwondo.  At Year 11, you won a sporting scholarship and commenced a course in sports science at Victoria University.  You completed two of three years.  You then studied financial planning and have been employed mainly in that field since.  You lost your job at National Australia Bank in September 2018 and,  as stated, presently work at Toyota Finance.  You have been in a relationship with your partner since 2016.  You describe him as supportive.  You still live at home with your parents. 

10Although your early years  featured accomplishment and apparent stability, Mr Melasecca and the expert psychological and psychiatric evidence described  serious dysfunction within your family  impacting upon your development and mental health. 

11Bearing in mind the issues raised in the plea hearing, this requires some detailed examination.  Your parents' relationship was unstable and abusive.  Your father left the relationship for a number of years, but has returned to the family.  Your mother has suffered over time severe physical and mental health problems.  The expert evidence describes her 'serious personality dysfunction' and her as a 'highly dysfunctional parental figure, presenting with extreme emotional dependency'.  I note in this regard that psychologist Luke Armstrong consulted with both your mother and father and has provided reports on that.  Affected by a number of traumatic experiences in her own childhood and throughout adulthood, your mother has been hospitalised several times.  There have been a number of suicide attempts.  Particularly she was over a long period  addicted to opioids, including morphine and heroin.  This seems to have arisen,  when you were very young, arising out of treatment for motor vehicle injuries.  Her addiction persisted at least into your early teenage and markedly affected and particularly came to involve you.  As to this, Dr Deacon states, consistent with the description of
Mr Armstrong:

'Ms Demirkiran was aged three when her mother was seriously injured in a car accident.  In addition to a protracted TAC case lasting three years, her mother developed a dependency on opioid medications, including morphine and pethidine.  Her mother's dependency led her to secreting her medication in her (meaning your) soft toys, to avoid it being found by her father.  Her mother was content when she self-administered medication and rewarded her (meaning you) with toys if she did not inform her father.  Her father became enraged and physically abused her mother when he discovered the medication.

Ms Demirkiran vacillated between trying to please both parents.  When her mother craved medication or withdrew from its effects, she was angry and terrified.  During periods when her parents were angry, she shut off by suppressing her fear and avoiding feelings of guilt and shame.  When her mother had taken her medication, she (the mother)  was quite loving and supportive, but she was generally sedated and unavailable.  Her father was mostly grumpy and angry, leading her (meaning you) to feel afraid.    She felt trapped between trying to please her mother by maintaining her secret, but then equally obliged to inform her father.  Guilt and shame were prominent feelings attached to her satisfying her parents' needs.  She often got blamed by either parent for revealing the truth or, alternatively, maintaining a secret'.

12The essential expert opinion is that,  in order to survive such a persistently fearful childhood predicament, you learnt by necessity 'to dissemble and disssociate'.  It became the normal.  A medical or psychological definition of dissociation is given in a footnote of Mr Armstrong's 13 December 2019 report as 'an experience of intermittent disconnection and lack of continuity between thoughts, memories, surroundings, actions and identity'. 

13Your father suffers depression and a chronic back injury.  He has not worked for several years.  You remember him in childhood as a harsh figure.  Your brother developed his own drug abuse problem and was physically abusive to you. 

14Sporting success provided what can be called an escape;  but this began to end in late teenage,  to some extent in the context of your mother's dramatically deteriorating health, as I have earlier described.

15The opinion of both Mr Armstrong and Dr Deacon is that the experience of your developing years  (which included the dependency of and relationship with your mother, emotional instability and neglect, fearfulness and your attempts to adjust) has led to a diagnosis of personality dysfunction or borderline personality disorder.  Features include identity disturbance, stress associated severe dissociative symptoms, chronic anxiety and efforts to avoid abandonment.  Mr Armstrong's clinical opinion and testing supports this.  What is called your 'enmeshed relationship’ with your mother has been a significant contributor.  Dr Deacon's opinion at paragraph 19 of his report states this, given your apparent capacity to function on a number of aspects of your life:

'Ms Demirkiran's personality problems and deficits seem to be persistent and stable over time, but mostly contextual and situational.  Her vulnerabilities are likely exposed in specific contexts, rather than pervasively across all domains of her daily life.  She is likely to be able to function, or at least on the surface present with the facade of function,  in daily life outside identifiable stressors.  In this context, I would opine that her personality dysfunction mostly operates at a mild to moderate level of impairment.  But in the context of  specific stressors, as highlighted in the context of the Centrelink issues, she decompensates into a moderate - severe level of impairment.  The severity of personality function has been considered as per …'. 

16Dr Deacon refers here to accepted mental health disorder assessments or measures. 

17The expert diagnosis and opinion have raised the issue of the applicability or relevance of principles stated in the R v Verdins and, more recently, Brown v The Queen, 2020, VSCA 212.  I shall return to this. 

18The context of your offence also includes deterioration in your family's financial situation. 

19For many years your father worked as a self-employed truck driver.  In 2003, he purchased the family home in Keysborough.  Affected by the family problems I have described and growing debts (including, but not only to the Australia Tax Office) by 2012 or 2013 his company had failed.  The family home was transferred to you in May 2012.  You were aged 20.  In 2013, your father's company was de-registered and, the chronology provided states, he entered bankruptcy.  The Australia Tax Office debt remained.

20Mr Melasecca's Chronology of commercial dealings is not challenged by the Crown.  It is supported by a number of primary documents; for example, Titles Office  extracts, which were provided, but ultimately not required by me to be tendered.  The history of the Keysborough home in a sense reflects the family's financial decline.  Between 2012 and 2019, there are a large number of mortgages and caveats lodged.  There were other personal or like loans to meet repayments.  Ultimately the property was sold in June 2019.  Most of the residual went towards your father's various debts.  You retained less than $2,000.  After sale, the family rented the property for a time and then moved to another rental premises.  Mr Melasecca put that during most of this period, 2012 to 2019, and during the period of offending, you were the only member of the family employed.

21Crown submissions challenged that there was financial hardship, pointing for example, to some overseas travel, your registration as owner of the family property, that you made payments on it,  and purchases of clothing and like goods.  I find that there was the financial difficulty described  affecting your family.  Loss of the family home, in the circumstances set out in the chronology document, is strongly persuasive of that.  It is not really explicable otherwise.

22Mr Melasecca also directed me to your physical health problems, which seemed to have developed during the period of offending.  The tendered letter of your general practitioner states a period of late 2017 to mid-2018.  Attached is a list identifying a large number of medications prescribed in that period.  Most are pain reduction or related medications.  The letter also states a neurologist’s diagnosis of “chronic migraine with prominent cranial autonomic symptoms”.  At times you required inpatient hospital care.

23Your GP's letter is addressed to your then employer National Australia Bank.  It appears to be in response to concerns and enquiry into your work performance, conduct and compliance.  National Australia Bank documentation about this was tendered, together with not dissimilar material related to your performance and ultimate termination at the Commonwealth Bank in late 2014.  This arose from cross-examination of Mr Armstrong and Dr Deacon and submission about your apparent capacity to function well in the area of employment; that being argued as inconsistent with a diagnosis of borderline personality disorder.

24You have longstanding symptoms from childhood of a facial tic and more recently developed involuntarily throat noises.  These are described in
Mr Armstrong's and of Dr Deacon's reports.  It is not clear whether they are neurological or psychologically caused. 

25Mr Melasecca also relied upon the principles stated in The Queen v Bugmy, given the damaging circumstances and effect of your childhood. 

26As I have stated, a major focus of the plea hearing was the relevance of sentencing principles stated in the cases of Verdins and Brown.  Mr Melasecca relied heavily upon the expert evidence of connection between your personality dysfunction, or its symptoms, and the offending; thereby bringing to bear what might be called the earlier limbs of Verdins, those related to reduced moral culpability and lesser importance of such sentencing purposes as deterrence.

27The two experts called stated,  both in their reports and further explained in evidence before me, such connection.  Dr Deacon's report describes it in this way, perhaps particularly related to the fact of your ongoing prolonged offending.  Following on from his diagnosis of your condition, and its exacerbation under specific stresses, he states:

'When taking into consideration the nature and quality of Ms Demirkiran's personality structure and functioning and vulnerability to decompensate in specific contexts, I opine that a meaningful causal connection can be considered to have operated between her personality function and offending behaviour.

When Ms Demirkiran was confronted with the gravity of her situation and realised she had not fulfilled her reporting responsibilities, she defaulted into a primitive state of relative denial, triggered by overwhelming fear.  Her mental state was compromised, but not to the extent that she did not understand that her failure to report was wrong.  However, when she realised she had done something wrong, she was psychologically incapable of appropriately acknowledging it and responding accordingly.  It is in this specific context that her personality functioning became impaired and compromised her capacity to exercise reasonable judgment and ability to make calm and rational decisions'. 

28Mr Murphy for the Crown challenged the relevance of Verdins to your case, justifiably, given the apparent differences here to the circumstances of Brown.  In particular, he raised the following:

1.            What he put to be the reliance in the expert opinion upon your own history and description of your experiences.  This was put given aspects of avoidance and denial in your record of interview and in what you told Mr Armstrong and Dr Deacon about the offending;  also your propensity to dissemble characterised in the diagnosis.

2.Your apparent capacity to function in other areas of life, such as employment and a relatively long term relationship.  This proposition was to some extent weakened by the employment performance materials subsequently tendered and to which I have referred.

3.The markedly more severe level of the accused’s personality dysfunction in Brown and its more apparent connection to her offending.  Related to this, Mr Murphy put the argument that the Court of Appeal in Brown limited application of Verdins only to severe conditions of borderline personality disorder.  That is, a high level of severity was a threshold requirement.  Verdins only applied to such cases at all.

4.The expert opinion relied upon was, in parts, uncertain or vague as to diagnosis.  Both Mr Armstrong and Dr Deacon were closely cross-examined before me.

29In Brown, the Court of Appeal removed the prior evident exclusion of borderline personality disorder, or personality dysfunction, from consideration of the Verdins principles.  On my understanding, Brown makes the following broad propositions:

1.            Whether a personality disorder engages any of the Verdins principles should depend not upon a particular diagnostic label, but upon what expert evidence shows about relevant effect of the condition on an accused’s mental functioning. 

2.An offender diagnosed with personality disorder is in no different position to any other who seeks to rely upon mental functioning impairment under Verdins.

3.            Whether and to what extent mental functioning is or was relevantly impaired should be the subject of rigorously scrutinised expert evidence.

30In applying these principles to the particular and somewhat unusual circumstances of this case, I have borne in mind that need for stringency and here, that a central feature of offending (dishonesty) should not  without question transition into a symptom of illness mitigating the offence.  However, I find that in your case, the Verdins principles have some relevance.  I accept the psychological and psychiatric evidence as to diagnosis, the symptoms of your condition and their connection to your offence.  I have found it diligent. (For example, Mr Armstrong also consulted with both of your parents.  The picture of your developing years is fundamentally consistent).  I see
Dr Deacon as a forensic psychiatrist of long term experience and competence. The explanation of your symptoms, including their relationship to your childhood and to your offence, was in my view consistent between them and internally so.  There is a plausible psychological explanation of the circumstances of offending, particularly,  for example, in the prolongation of that offending.  I refer to my earlier quotation of Dr Deacon on this.  Your childhood experiences, although set in a superficially stable picture of family life, should be seen as persistently traumatic and likely very damaging. 

31However, bearing in mind Brown and Verdins, I also see the Verdins principles (those stated in limbs 1, 3 and 4) to have necessary limits to their relevance and moderating effect.  This is a much different case to Brown.  That offender's personality dysfunction was,  in its broad effect, markedly more severe and debilitating.  Connection of it to her offending was not only more readily seen, but also stronger.  Application of Verdins,  the prior somewhat arbitrary exclusion removed, was a much clearer exercise.  The causal connection in your case does not move into the area of being unable to recognise the wrongfulness of what you did and continued to do. 

32I do not accept Mr Murphy's argument that personality dysfunction must reach a higher or very high level of severity to consider Verdins at all; and therefore should be treated differently to other mental functioning impairments.  However, what remains is the question of weight and to what extent usually applicable sentencing considerations, such as deterrence,  are moderated.  This is consistent with the established approach to Verdins generally.  Here, the weight and significance of your personality disorder to sentence must be considered in the light of its relevant symptoms, in what way and to what extent they truly reduce the culpability of your offending. 

33Ultimately, I see a narrow,  fragmented consideration of Verdins and for example, such principles as those stated in Bugmy as not the best way of making that assessment, particularly in this case.  I find a combination of relevant, but also interacting factors, in the personal circumstances existing for you at and during the time of your offending.  There was an unhealthy, dependent relationship between you and your mother.  This was made worse in the circumstances of her markedly deteriorating health and, for a time, your father's departure from the family.  You were her primary carer.  There was the decline of your family's financial circumstances.  One can speculate, for example, about your father's role or contribution to this.  It would be unfair to in any way attribute adversely to you, given your age during the time and what I find to be your situation within the family.  To see you as a controlling influence would be to arbitrarily ignore evidence of the effect of your developing years.  There was that emotional deprivation and situation of your childhood, that is, in the Bugmy sense.  Within, and interacting with this combination of things is the vulnerability of your diagnosed and explained personality dysfunction. 

34My sentence cannot ignore the serious objective features of your offence.

35It was serious offending.  As put by Mr Murphy, your offence was prolonged.  There was opportunity to stop and a number of acts of dishonesty.  It is offending difficult to detect and,      in effect, exploits the necessary trust of the social welfare system.  There is community loss in all of these things.

36The seriousness of offending makes relevant the sentencing considerations and purposes of moral culpability, deterrence    (particularly general deterrence), denunciation and proportionate punishment.  This is reflected in relevant provisions of the Commonwealth Crimes Act. 

37The objective serious circumstances of your offending would make a sentence of imprisonment the likely proper sentence.  However, as I have attempted to explain, there are also considerable moderating factors,  personal to you, which should be considered and balanced against that.  These include the following:

1.        Your plea and cooperation as earlier explained.  The evidence does not support an insightful  remorse.  Although there is some psychological explanation for what you have said in interview and to the two experts about the offending, you do not have orreceive the additional benefit of that.

2.        That you have no prior convictions supports that you are a person of otherwise good character.  It is true to say that good character may not carry as much weight in offending of this type; but you are still entitled to an appropriate consideration of it

3.        Your personal history and circumstances.   This includes the evidence of your mental health condition and its relevance to offending as I have earlier explained.  Those circumstances give context to your offence and, to some extent, moderate sentencing purposes such as deterrence and denunciation.

4.        Verdins principles also apply to likely additional hardship for you if imprisoned.  I agree with the evidence that you would be very vulnerable because of your mental health condition.  Deterioration in your symptoms would be a high risk.

5.        I see you as having good prospects for rehabilitation, bearing in mind both your lack of criminal history and that you now receive appropriate psychological treatment.  I would find that the experience of these proceedings have likely had a deterrent effect.

6. I also bear in mind Commonwealth legislative provision, s.17A of the Crimes Act, that I should not impose imprisonment unless satisfied no other sentence is appropriate.  I have come to the view that the relevant sentencing purposes can be met by a sentence other than actual custody. 

38I shall direct assessment of your suitability for a community corrections order.  That is a sentence which can provide appropriate punishment and the opportunity for close supervision of your compliance. 

39I have considered the comparative sentence summaries provided by both parties.  I also bear in mind the need to sentence individually to your case.  It is a case which has unusual features.  

40Now I thereby direct, for the reasons I have outlined, the assessment of Ms Demirkiran for a community corrections order.  Where should that be done Mr Melasecca in your view?  I'm probably asking for your client's address.

41MR MELASECCA:  They've been doing them online as currently - my current experience, that most assessments have been done via the web and I think an enquiry would resolve given that indication.

42HIS HONOUR:  All right, what ‑ ‑ ‑

43MR MELASECCA:  I don't think they need attendance at offices.  I think it's ‑ ‑ ‑

44HIS HONOUR:  I follow.

45MR MELASECCA:  The associate contact the Corrections and they will arrange an appointment online as I understand.

46HIS HONOUR:  In fact - is that right Fran?  All right and what does that mean that my - that Ms Merrington should arrange it and then notify you of the arrangements?

47MR MELASECCA:  Yes, yes Your Honour.

48HIS HONOUR:  And then you can tell your client.

49MR MELASECCA:  Yes.

50HIS HONOUR:  All right.

51MR MELASECCA:  There would be a direct link to the email as we have done today.

52HIS HONOUR:  All right.

53MR MELASECCA:  And a fine given and she would attend within that time, Your Honour.

54HIS HONOUR:  Will I adjourn for - you can probably call it a further plea and sentence, but it's really for sentence and that - can that be for a date to be fixed or do I - should I give it a certain date?

55MR MELASECCA:  It may well be that the assessment could be carried out today, but Your Honour could give another date for sentence, if Your Honour ‑ ‑ ‑

56HIS HONOUR:  There's no - I presume there's no particular hurry.  I'm not talking about weeks, I'm talking about days. 

57MR MELASECCA:  No.

58HIS HONOUR:  If I listed this for a week's time, that would give the Community Corrections system the opportunity to do it ‑ ‑ ‑

59MR MELASECCA:  Yes, Your Honour.

60HIS HONOUR:  ‑ ‑ ‑ at their convenience.  I'm going to ask - there's a form you fill out and I'm going to ask for eligibility or an assessment related to unpaid community work, supervision, medical assessment and treatment and mental health assessment and treatment.  All right, you are both excused when the matter returns, although there should be some representation. 

61Presuming that you personally won't be appearing, Mr Melasecca and you
Mr Murphy, I wish to thank you both for your assistance in this case.  I have found it not only been an unusual case, but a difficult case.  Your submissions were both very helpful to me.  We need the mobile phone number of Ms Demirkiran.  Do you have it Mr Melasecca?

62MR MELASECCA:  (No audible response.)

63HIS HONOUR:  You're on mute.  Can you say that again?

64MR MELASECCA:  Yes, Your Honour, I can email that to Your Honour's associate immediately.

65HIS HONOUR:  All right, that's what we'll do.  All right, well so I can turn you both off now, is that right?

66MR MELASECCA:  Will Your Honour nominate a date in due course, yes?

67HIS HONOUR:  Yes well I'll list it for next - have you got my work pending sheet?

68ASSOCIATE:  No, but I've got ‑ ‑ ‑

69HIS HONOUR:  What's next Friday?  What have I got next Friday?

70ASSOCIATE:  Next Friday's the 13th.

71HIS HONOUR:  Yes, but what have I got?

72ASSOCIATE:  (Indistinct words).

73HIS HONOUR:  Nothing.  What have I got next Thursday?

74ASSOCIATE:  Thursday you've got the Barrett contravention and the Maguari contravention, that's all.

75HIS HONOUR:  I'll list this for next Thursday the 12th.

76ASSOCIATE:  At 11.30?

77HIS HONOUR:  All right, yes.  At 11.30, 12 November, good.  That means you can both - with my thanks again, you can both be turned off.  Thank you.

78MR MELASECCA:  May it please, Your Honour.

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