Director of Public Prosecutions v Dogru
[2014] VCC 2191
•31 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00994
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| OSMAN DOGRU |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2014 | |
DATE OF SENTENCE: | 31 July 2014 | |
CASE MAY BE CITED AS: | DPP v. Dogru | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2191 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | OPP |
| For the Accused | Mr W. Toohey | C. Marshall and Associates |
HER HONOUR:
1 Osman Dogru, you have pleaded guilty to a charge of contravening a Family Violence Intervention Order, an offence with a maximum penalty of five years' imprisonment, and to a charge of false imprisonment, a charge of intentionally causing injury and a charge of making a threat to kill, all of which are offences with a maximum penalty of 10 years' imprisonment.
2 You have also admitted that you committed an offence of careless driving, and an offence of using a drug of dependence (methylamphetamine). You will not receive a penalty for these two offences, but it is agreed that l will take into account that they occurred when I am passing sentence on the other charges.
3 An agreed summary of your offending was read out in court by the prosecutor[1]. I will sentence you on the basis of that summary. I proceed to briefly outline what occurred.
[1] Exhibit A
4 Your offending involved your girlfriend, Alice Riley[2], with whom you had been in a relationship for about 18 months in February 2014. It was a difficult relationship, with both of you involved in drug use, and it seems you also both suffered from a level of depression. On 11 August 2013, you assaulted, threatened and injured her. You were charged with these offences as well as charges of drug use, theft and resisting police. As a result of this behaviour towards Ms Riley, a Family Violence Intervention Order was taken out to protect her, prohibiting you from being violent towards her, and from contacting her, amongst other prohibitions. Despite the intervention order, the relationship continued.
[2] A pseudonym
5 On 6 February 2014, you were involved in a motorcycle collision and you injured your arm. Later that day, in contravention of the Family Violence Intervention Order, you contacted Ms Riley using various telephones many times between 8.14 pm on 6 February and 1.23 am on 7 February (Charge 1 – Contravention of a Family Violence Intervention Order).
6 You later told police that you had used "ice" (methylamphetamine) at about 9 pm on 6 February. This constitutes the charge of using a drug of dependence, which I take into account on the other offences in the following ways: it is highly likely that you were affected by this drug when you were harassing Ms Riley with your calls. You also told police that you did not sleep that night after using the drug and later, you also told a psychologist that you were affected by methylamphetamine and cannabis at the time of the incident on 7 February, and also you recognised that your anger management strategies do not work when you are affected by substances, particularly methylamphetamine[3]. I find that this drug use on the night of 6 February contributed to your behaviour towards Ms Riley the next day by making you less able to control your temper.
[3] Exhibit 2
7 On the following day, 7 February, you asked Ms Riley to take you to the doctor regarding your injuries. She agreed to go with you, but drove her own car, while you drove that of your sister. In the carpark outside the clinic at about 9.30 am, you began arguing with her, then got into the back seat of her car, wrapping your arms around her in the driver’s seat, and began threatening her with a small knife (part of Charge 4 - threat to kill).
8 An extremely brave woman in the car next to hers saw what was going on, and rang the police. While doing that, this woman drove her car into a position to allow Ms Riley to escape her car and get into the woman’s car. Ms Riley tried to do so, but you stopped her, and dragged her backwards by the hair to your sister’s car, causing injuries to her arms, legs and heels (part of Charge 3 – intentionally causing injury). The woman and at least two other people saw this and heard Ms Riley screaming. You forced her into your sister’s car, and then drove out of the carpark (part of Charge 2 – false imprisonment). Again this was observed by witnesses who rang the police.
9 You drove off at a fast speed on the wrong side of the road, nearly lost control of the car going around a roundabout and drove erratically after that. This driving constitutes the charge of careless driving which I take into account on the other offences. I am satisfied that this driving would have caused Ms Riley to be even more frightened of you and concerned for her safety.
10 While you were driving, you hit Ms Riley to the head a number of times and she suffered bruising and swelling to her right eye, as well as other bruises and abrasions to her head, face, neck and chest[4] (part of Charge 3 - intentionally causing injury). You also threatened again to kill her, and then yourself (part of Charge 4 - threat to kill).
[4] Exhibit B – Book of photographs
11 You kept Ms Riley with you for hours, either driving around, or at a friend’s house (part of Charge 2 – false imprisonment). Eventually, you picked your sister up from where she worked, and she drove you and Ms Riley home to your parents’ house, where you were arrested by police at about 4.30 pm. You have been in custody ever since, and the relationship with Ms Riley ended that day.
12 The offending in this case is very serious. Although it was clearly a difficult relationship, that is no excuse for treating the woman, who you said you loved, with such violence and control, and doing so over a number of hours. Ms Riley was entitled to feel safe and be respected in your relationship, but instead, on this occasion, you were a threat to her safety and treated her with total disrespect.
13 Your offending is made more serious by the fact that you had previously acted in this violent way towards her in August 2013, and were on bail for those charges on 7 February. Further, you completely ignored the intervention order which had been taken out to protect her from you, making the offending in Charges 2, 3 and 4 more serious. Another factor which makes your offending on Charges 2 and 4 more serious is that you used a weapon in your threats to Ms Riley.
14 Ms Riley provided a Victim Impact Statement. It was read out to the court, and I have taken it very much into account in deciding the appropriate sentence. Your actions have made her depression worse, because every single day, she recalls the events of 7 February, and suffers constant flashbacks, stating that she has never been through anything so terrifying in her life. Nothing I say or do can make her feel better, but I encourage her to seek such assistance as she can to deal with the trauma caused by your actions, and gradually learn to live her own life again. I wish her well in the future.
15 You admitted a criminal history, involving two court appearances in 2011 and 2012.[5] Your history includes offences which are highly relevant to my task of sentencing you today, being 12 driving offences, seven weapons offences, six offences for possession of drugs and an offence of contravening a Family Violence Intervention order (not in respect of Ms Riley).
[5] A third appearance, in 2012, is for Judicial Monitoring associated with the earlier appearance in 2012.
16 On 25 June 2014, a court dealt with the charges relating to your offending against Ms Riley from August 2013, and you received a sentence of nine months' imprisonment. You are currently serving this sentence, and with 75 days of pre-sentence detention deducted, you apparently have about six months of that sentence left to serve. Because you were on bail for those offences on 6 and 7 February, the sentence I impose today must be served cumulatively on, that is, on top of, the sentence you are currently serving, unless I direct otherwise.[6]
[6] s.16(3C) Sentencing Act
17 Tomorrow, 1 August, you will appear in another court for the charges arising out of the motorcycle collision on 6 February 2014.
18 Against these very serious aspects to your offending, there are a number of matters which I must take into account in your favour.
19 The first of these is that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea of guilty, the community has been saved the cost and time of a trial. All witnesses have been spared from giving evidence, most importantly, Ms Riley, who would almost certainly have found the ordeal of giving evidence in such a case very traumatic.
20 As a result of your plea of guilty, I can tell you that the sentence that I will impose will be far less than would have been imposed had you been found guilty after a trial.
21 In your interview with police on 7 February, you tried to shift blame to Ms Riley and avoid responsibility for your actions, but by 30 April, you accepted full responsibility, indicating that you intended to plead guilty, and you have not disputed the facts of your offending as set out by the prosecution. I therefore take these factors into account in your favour and accept that they show that you are remorseful for the harm you caused to Ms Riley.
22 I have been told about your background and personal circumstances, details of which were contained in the Outline of Submissions by your counsel[7] and in a report provided to the court by psychologist, David Ball.[8]
[7] Exhibit 1
[8] Exhibit 2
23 You had just turned 25 at the time of the offending and you are still that age. You were born and grew up in Turkey, migrating to Australia in 2006. Your father lived in Australia and was only present for holidays until you, your mother and a sister joined him here after you finished year 12 in Turkey, and you all lived together until you went into custody on 7 February. Mr Ball described your early family life as "disengaged and chaotic", and noted that you said you had no male role model growing up and felt responsible for looking after the family. Despite this assessment, your father was here in court to support you, and your mother would have been here, but she is currently overseas.
24 Tragically, your brother and another sister were killed in a car collision in Turkey after attending a wedding there in 2010. I accept that you are still significantly affected by unresolved grief and loss, and note Mr Ball’s recommendation that you be treated for this, but not while you are in custody. This grief and sense of loss have increased the level of your drug use which began in 2008.
25 You began using drugs and alcohol after you arrived in Australia, describing to Mr Ball consuming large amounts of alcohol at least three times a week, and from 2008, using cannabis, amphetamine and methylamphetamine. You considered yourself addicted until you went into custody, and you have just commenced a six-month drug and alcohol course in prison aimed at addressing addiction and relapse strategies.
26 Mr Ball assessed you as generally having poor judgment and lacking full capacity for thinking about the consequences of your behaviour and maintaining positive behaviours, as well as having a number of paranoid and antisocial features in your personality. I find that all these factors, together with your substance abuse, contributed to your offending. While you have some insight into your offending and your psychological functioning, and are aware of the need, and have the ability, to manage your anger, you acknowledge that these positive strategies are undermined by substance abuse. It is to be hoped that your work in the drug and alcohol course will set a good foundation for you to work on in future, and avoid further offending, at least of a violent nature.
27 You have shown that you can be a working and contributing member of the community, having worked in Australia for 12 months as a truck driver, and then setting up a commercial cleaning business in 2009. However, as your level of drug abuse increased, along with your anxiety levels, you were unable to continue, and your uncle took over the business. You have not worked since 2012.
28 While you have been in custody, you have done some work, although it is unclear whether this was in the kitchen or as a unit billet (cleaner). You are prescribed medication for depression and anxiety, and you have had three urine tests for drug use, which I am told were clear. You chose not to apply for bail, and have been working on remaining drug free. Your plan for your release is to return to Turkey to make a fresh start there, away from negative influences, and keep off the drugs.
29 I find that your prospects of rehabilitation are reasonable, and as you are still a young man, you have the chance to turn your life around, making use of such assistance as is available to you. If you do not change or deal with your problems, then you will find yourself getting into trouble again, which means you will spend more and more time in prison.
30 As well as those matters personal to you to which I have referred, I must also take into account that my sentencing of you must seek to deter others from offending in the ways that you did, which is known as general deterrence, and which is highly important in a case involving violence against an intimate partner. My sentence must also seek to deter you from reoffending, which is known as specific deterrence, although I recognise that you have already reflected on your offending behaviour and seek to avoid that behaviour in future by dealing with your drug abuse and other issues.
31 I must also consider the question of protection of the community from you and bear in mind the likelihood of your reoffending, which I find is likely to be a continuing risk to a woman with whom you are in an intimate relationship in future, unless you deal with your issues. You are also likely to offend in other ways unless you remain free of drug abuse.
32 The prosecution applied for the retention of an intimate forensic sample previously taken from you. You have not opposed that application and as it is in the interests of justice to make the order and the seriousness of your offences and your criminal history warrant the making of the order, I have signed it.
33 I have also signed the certificate under s.100 of the Sentencing Act that the offences of careless driving and using a drug of dependence have been taken into account.
34 It was properly conceded on your behalf that a sentence of imprisonment must be imposed. It was submitted by your counsel that you would benefit from the structure provided on parole, although it is recognised that you wish to complete your sentence and return to Turkey, and a parole period would delay that. I have decided that I have no alternative to imposing a sentence of imprisonment, and that a parole period is necessary in this case. You should consider your options carefully, and I think you will decide that if you are offered parole, you should take it with the assistance it will give you, and after completing your full sentence, you can then assess where you will live.
35 Because you were on bail for offending in a similar way against the same victim in August 2013 when you reoffended on 6 and 7 February 2014, I have decide not to make an order which changes the effect of s.16(3C) of the Sentencing Act. That means that you will serve the sentence I impose today cumulatively on, that is, on top of, the sentence you are currently serving.
36 You are convicted and sentenced as follows:
37 On Charge 1 - contravening a Family Violence Intervention Order – seven months' imprisonment.
38 On Charge 2 – false imprisonment – 18 months' imprisonment.
39 On Charge 3 – intentionally causing injury – 15 months' imprisonment.
40 On Charge 4 – threat to kill – 12 months' imprisonment.
41 The sentence on Charge 2 is the base sentence. I direct that two months of the sentences imposed on Charges 1 and 3, and one month of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 2 and on each other.
42 That makes a total effective sentence of 23 months' imprisonment. I direct that you serve 11 months before becoming eligible for parole. I make no order under s.16(3C) of the Sentencing Act, and as a result, you will serve the sentence imposed today cumulatively on the sentence imposed on 25 June 2014.
43 I declare that you have served 138 days in pre-sentence detention, not including today and these are to be deducted administratively from your sentence.
44 If you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is a total of four years' imprisonment with a minimum of two years.
45 I thank counsel for their assistance and also, Madam Interpreter, thank you as well. Mr Toohey, are you going to be seeing Mr Dogru or did you want to speak to him now?
46 MR TOOHEY: I would like to speak to him just briefly now because I've got to go to another court.
47 HER HONOUR: Yes, that's what I thought. In the circumstances, I will allow Mr Dogru to remain in court, even though I will not be on the Bench.
48 MR TOOHEY: Thank you, Your Honour.
49 HER HONOUR: Yes, thank you.
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