Director of Public Prosecutions v Diren
[2020] VCC 61
•7 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-01875
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUREN DIREN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2020 | |
DATE OF SENTENCE: | 7 February 2020 | |
CASE MAY BE CITED AS: | DPP v Diren | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 61 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge of procuring a sexual act by fraud – offender removed condom during sexual intercourse without the complainant’s knowledge or agreement – ‘stealthing’ – no prior criminal history – general deterrence the paramount sentencing consideration – very strong prospects of rehabilitation.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991.
Sentence: Community correction order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E James | Office of Public Prosecutions |
| For the Accused | Mr R Edney | Victorian Legal Aid |
HIS HONOUR:
Introduction
Duren Diren, you have pleaded guilty to one charge of procuring a sexual act by fraud contrary to s 45(1) of the Crimes Act 1958, which carries a maximum penalty of 5 years imprisonment.
You have no prior Criminal Record.
Circumstances of the offence
This matter came before the court as a sentence indication hearing and as such, a prosecution summary was prepared and tendered for that purpose. From that document the circumstances of the offending may be summarised as follows:
On 3 September 2017, in the early hours of the morning, you visited the complainant at her home in Port Melbourne. The complainant was 30 years of age at the time.
After some conversation, you and complainant began touching and kissing each other. You both then went upstairs to her bedroom to have sex.
The complainant asked you to wear a condom and said to you ‘where’s your condom’. You said, ‘do we really need to use a condom?’ to which the complainant replied, ‘Yes, of course’.
The complainant offered you two packets of condoms. You said you had your own condom in your jacket pocket, and you went downstairs to get your jacket.
The complainant watched as you opened a condom packet and put the condom on your penis. You both started to have sexual intercourse using a condom. You changed position a number of times, and you removed your penis from the complainant’s vagina and paused.
At some stage, without the complainant’s knowledge or agreement, you removed your condom and continued to have sexual intercourse.
When you ejaculated, the complainant felt wet in and around her vagina. She asked you ‘Did you take your condom off?’. You replied, ‘Yeah, I can’t come with a condom on’.
As the conversation continued the complainant became upset. She told you that you could not stay over, and you left her house shortly afterward.
On 3 September 2017, shortly after 6am, the complainant made two calls to Police to report the offending. At around 7:10 am, Detective Senior Constable Narelle Lewis of the Moorabbin Sexual Offence and Child Abuse Unit commenced an investigation.
The complainant agreed to make a recorded ‘pretext call’ to you on the evening of
3 September 2017. This call was mostly in Turkish, and Victoria Police had the call recording translated.
During the pretext call you made a number of admissions in answer to questions put to you by the complainant which are detailed in the prosecution opening including:
Q: But I told you not to take it off didn’t I? Like I told you to use it didn’t I? Like…
A: Yes
Q: You took it off without asking me, yeah?
A: My intention, ... my intention wasn’t to impregnate you
Q: The bottom line is did you ask me before you took the condom off?
A: No
Q: Even though I told you, you didn’t respect what I said. You know what I mean? Like…
A: Uh huh.
On 27 September 2017, you were arrested and participated in a recorded interview. You exercised your right to answer ‘no comment’ to questions put to you.
Nature and gravity of the offending
It is clear on the evidence that prior to any sexual activity, the complainant insisted on you wearing a condom. In other words, she did not wish to participate in sexual activity with you without that condition being met. While reluctant, you agreed and wore a condom.
However, with that knowledge, you removed the condom without the complainant’s knowledge or agreement, and you continued to have sexual intercourse without a condom.
The complainant understandably became upset when she realised what you had done and reported the matter to the police within hours of the incident.
The charge of procuring sexual activity by fraud clearly involves a deception or false representation, in this case particularised as you representing that you would wear a condom during sexual penetration and you did not. You effectively changed the rules for your own gratification without any consideration for the complainant or her wishes. In my view your offending involved a conscious decision by you and therefore is serious. Parliament also recognises this offending as serious by imposing a maximum term of imprisonment of five years.
The complainant in this matter chose not to prepare a victim impact statement, however it is self-evident from the agreed facts that she was very upset at your conduct and understandably reported the matter to police. As a result, she was required to undertake a forensic medical examination, participate in a pre-text conversation with you and was cross-examined at a committal hearing.
Personal circumstances
You are 47 years of age and of Turkish descent.
You came to Australia in 2005 and have maintained a consistent work history in a number of occupations including on construction sites and in the security industry. Currently you are working as a forklift driver. You regularly send money back to Turkey to your family. Your father is 84 years of age, living in Turkey and is unwell. Your mother passed away in 2010.
You have no children and live alone however you have been in a relationship for over a year. Your current partner provided a reference to the court where she speaks of her disbelief in relation to this charge. In her view you have always shown her respect and treated her well.
Since the offending you have developed anxiety and you have sought the assistance of mental health services. As to your physical health, you are awaiting surgical intervention for kidney stones.
A number of references were tendered that represent a wide cross section of your life. The referees speak with a united voice in relation to your conduct being completely in contrast to the person they know. You are otherwise described as a hardworking and respected friend and colleague. The references also speak of your shame and remorse in relation to your conduct.
Relevant sentencing considerations
In cases such as this general deterrence is the paramount sentencing consideration. Others need to be sent a message that this type of conduct will not be tolerated in our society. In the context of consensual sexual activity including intercourse, circumstances may change and as was the case here, your conduct created an entirely different circumstance where the complainant undoubtedly would have not agreed to you continuing if she had known that you removed the condom. Thus the message is that in circumstances such as this, individuals may face serious criminal sanctions if they choose to engage in similar conduct.
I take into account your plea of guilty and while it is not a plea at the earliest opportunity, and that you ran a contested committal hearing, it is clear why this matter was going to trial as the first charge on the trial indictment which is now not proceeding, was a very serious charge. In the circumstances your plea has saved the time and expense of a trial and has avoided the need for the complainant and others to give evidence.
Mr Edney who appeared on your behalf submitted that delay is relevant. The offence occurred in September 2017, more than two years ago. As I understand the background, the matter was not reached on other occasions and any delay has not been attributed to you. You have developed anxiety as a result of the continued criminal process, and I accept that delay in this instance is able to be taken into account in your favour.
Specific deterrence should be given some weight however given your lack of prior history and general good character, in my view in the circumstances specific deterrence need not be given great weight. That said I acknowledge that there is a subsequent matter that involved a physical assault with an ex-partner resulting in an intervention order and a short period of custody however the circumstances were very different and followed an acrimonious breakup.
What emerges from the references tendered is that people who have known you for many years state that you are otherwise a respected, hardworking, generous friend. The references in my view also reflect that you have taken this matter very seriously and have insight into your conduct. As such in my opinion in all the circumstances your prospects of rehabilitation are able to be assessed as very strong.
This matter came before the court as a sentencing indication hearing on the charge to which you have pleaded guilty. As part of that hearing the prosecution submitted that if a plea of guilty was entered on the charge, a community correction order would not be outside the range in all the circumstances. Upon hearing submissions, I formed the view that on a plea I would not sentence you to an immediate term of imprisonment. I therefore had you assessed for a community correction order and you have been assessed as suitable. The assessor has made certain recommendations in relation to appropriate conditions and I agree that they are appropriate conditions to be attached to the order.
Sentence
Mr Diren please stand.
Duran Diren, in relation to Charge 1, procuring a sexual act by fraud, you will be convicted and placed on a community correction order for a period of two years. The order will include punitive and therapeutic components.
You will be required to complete 150 hours of community work over the two year period. The order will also require that you undertake treatment and rehabilitation programs to reduce the risk of reoffending and you will be subject to supervision.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions may be credited as hours of unpaid community work.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment followed by a community correction order.
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