Director of Public Prosecutions v Elidemir

[2019] VCC 1508

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00512

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUNC ELIDEMIR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 September 2019
CASE MAY BE CITED AS:	DPP v Elidemir
MEDIUM NEUTRAL CITATION:	[2019] VCC 1508

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	Ms. N. Burnett	Office of Public Prosecutions
For the Accused	Mr. S. Kenny	Victoria Legal Aid

HER HONOUR: 

1Tunc Elidemir, you have pleaded guilty before me of one charge of armed robbery and one charge of attempted armed robbery.  The facts underlying your offending are as follows.

2On 16 December 2018 at about 4.20 in the afternoon, the first victim, Rohic Sudasan was walking home from Melbourne University and he passed you at the corner of Grattan and Elizabeth Streets in Parkville.

3He kept walking and he was listening to music.  About 20 seconds after passing you, you tapped him on the shoulder and said, 'Hey, give me all your money.' 

4Mr Sudasan said, 'What did you say?' and you repeated, 'Give me all your money' and then showed him the sharp end of a pair of scissors in your pocket.  You did not pull them out or point them at him.  While you showed him the scissors, you said to this victim, 'I'm dangerous.'  Mr Sudasan later told police that you were not aggressive but he was scared of what you could potentially do. 

5While Mr Sudasan was searching in his wallet, you said, 'I need this money for Christmas.'  Mr Sudasan gave you what he thought was about $60 or $70, you counted it, put it in your pocket and left straightaway.  Those actions underlie Charge 1 on the indictment, armed robbery. 

6Understandably, Mr Sudasan was in shock and stood still for about 30 seconds, before going home and calling 000.  The incident was captured on CCTV footage. 

7On 17 December 2018, at about 8.40 in the morning, the second victim Oceana Chapple got off a tram on Elizabeth Street in Parkville, and walked to an alleyway towards her workplace.  At the start of the alleyway, you approached her, stood close to her and said something she didn't understand.  She asked you to repeat yourself several times and you said, 'It's Christmas, give me your money.'  She asked you to say it again as she was not sure if she had heard you correctly, and you said, 'Give me your money' and showed her scissors from her jumper.  These actions underlie Charge 2 on the indictment, attempted armed robbery.

8Ms Chapple told police that you had the scissors in your left hand, which you kept close to you, and you did not hold them close to her.  She felt that you might have shown her the scissors so she would take you seriously, but she told you she did not have any money and you said the two of you should go to the bank to withdraw some money and she said 'no’.

9Ms Chapple walked away and went into a nearby business.  You followed her for a short time and then walked away.  The offending occurred in less than five minutes.

10Ms Chapple told police she was quite shocked and felt that she was possibly not safe and that said she did not want to move away from you too fast as she did not want to make you panic in case you got violent.  This incident was captured on CCTV footage.

11Soon after on the same morning, the third victim Chris Harms was walking outside the Royal Children's Hospital when you went up to him and began staring at him, then said something that he could not hear.  You then said, 'Give me your money' and produced a pair of scissors from your pocket in your left hand, saying a number of times, 'Give me your money, give me your money.'  These actions underlie Charge 3 on the indictment, attempted armed robbery. 

12Mr Harms walked away, trying to flag down passing cars.  At first you followed him, then you put your scissors back in your pocket and kept asking, 'Where are you going?' and then walked away down the street. 

13Mr Harms then called 000 and gave a police a description of you and police arrived at the scene very soon after.  Mr Harms pointed out the direction that you had walked off and you were then located and arrested.  Mr Harms felt shocked and upset when you produced the scissors.

14On arrest, police asked you where are the scissors, and you said, 'In my pants pocket' and the scissors were located and removed.

15You were interviewed a couple of hours later and an independent third person was called.  You made full admissions to committing the armed robbery, and in relation to the second incident, you made admissions to telling Ms Chapple that you had scissors and said they were the same scissors you had used the day before.

16You identified yourself on CCTV footage, saying, 'That's me with the scissors.'  You said you agreed that the victim would have been frightened and said, 'I'm just sorry that this all happened.'  You also made certain admissions to the third incident. 

17Again, you said the reason that you had scissors on you was to steal money from people and said you were, 'Just sorry.'  You pleaded guilty at a very early stage at a committal case conference.  You were remanded and held in custody after your arrest. 

18The maximum penalty for armed robbery is 25 years imprisonment.  The maximum penalty for attempted armed robbery is 20 years imprisonment. 

19I now turn to your personal circumstances.  You are now 31 years old.  You were raised by your mother in North Melbourne and you parents were never together.  Your father lives in Broadmeadows and you have some contact with him, but it is your mother who has been very much the main caregiver ever since you were a baby.

20You have got a younger half-brother and sister on your father's side, but you have never lived in the same house with them.  You have lived nearly all your life with your mother who raised you as a single parent in public housing and you have a very close relationship with her. 

21You got to Year 6 at school and never went to high school.  You had had one significant relationship with another person, but you never lived with that partner and there is a child of that relationship who lives with your mother and is in her full custody. 

22Because of child protection being involved, you are not allowed to live in your mother's house because of problems that you might present to your child.  You have had periods of homelessness since you were about 14, and you have not been allowed to live with your mother for about the last four years.  During that time, you have lived in boarding houses, and you have also been homeless and survived by begging. 

23You were apparently sexually abused by a neighbour when you were a child and suffered further abuse by another person during your teens. 

24You began using cannabis when you were a teenager, and then started using heroin when you were about 18 and you have also used methamphetamine or ice.  You have been prescribed methadone in the past.  You were not on methadone at the time of your arrest. 

25There were problems with your behaviour when you were a teenager, and you were eventually diagnosed with schizophrenia in 2013 and you have been hospitalised in psychiatric wards on many occasions.  You were also subject to a community treatment order at the time of your arrest, and had in fact only been discharged from the Royal Melbourne Hospital five days before this offending. 

26Whilst you were in hospital, your anti-psychotic medication had been changed from what is called Risperdal Consta to Zuclopenthixol, and at the time of your offending, your new medication had not reached therapeutic levels. 

27You were living in a housing service called, 'Common Ground' in North Melbourne.  At the time of your offending, your counsel told me you were using drugs, you had very little money and you were still struggling with psychotic symptoms, although it has never been submitted to me that you were frankly florid, but I do accept that there was some psychiatric stability in you at the time of this offending.  You were upset and believed that you picked up the scissors from your accommodation.

28You told your barrister that you could not explain why you decided to demand money from your victims with the scissors, that you are remorseful and recognise that you would have frightened those people.

29You have got some criminal history. 

30Given your psychiatric and substance abuse history over the years, this is unsurprising.  You have appeared before courts since 2007 for largely street offending such as shoplifting, but also more serious matters such as assault in company, assault with a weapon, recklessly causing injury. 

31You have made many appearances in court.  You were dealt with in 2009 for intentionally causing injury, motor car theft in 2010, theft and dealing with the proceeds of crime in 2011. 

32In July 2011, you were dealt with for possessing heroin and possessing a drug of dependence and you were also dealt with for trafficking heroin, that is selling heroin, and dealing with property suspected of being the proceeds of crime. 

33You have been convicted of possessing a dangerous article in a public place, criminal damage, and along the way you have been placed on several Community Corrections Orders which you have also breached.  You have also been sentenced for a term of imprisonment and placed on parole which you successfully completed. 

34I received a psychiatric report from a Dr Linda Cader dated 9 July 2019.  She met you when you were a patient at the Homeless Outreach Mental Health Service.  At that stage, you had been managed by the Inner West Area Mental Health.  She noted that you have been formally diagnosed as having schizophrenia, you have psychotic symptoms ranging from paranoid delusion, self-laughter, references from TV, auditory hallucinations, you have had periods of agitation, aggressive behaviour and assaults against doctors when you were very unwell.  She stated:

'Over the past two to three years he has been increasingly disorganised in thinking when he is drug abusing and not attending to self-care adequately.'

35You did not engage well with the service and it is a big problem for you that you use drugs, and that you do not take your medication in the way you are supposed to, and she stated:

'Prognosis is significantly guarded without treatment due to lack of insight, impulsive behaviour and abuse.  With treatment and rehabilitation, stability can be hoped for however this was not noted by our team despite stable housing and a range of support services for him.'

It was her view you have had not a good prognosis, not a good future because of the way that you have been behaving. 

36I also received a psychiatric report from Dr Fiona Best dated 24 July 2019.  She noted that you had been discharged from an acute psychiatric in-patient six days before the offending, and the discharge summary indicated there had been major changes within your treatment, and usual depo injection, and she confirmed that the new depo injection anti-psychotic would not have reached therapeutic levels.  She said that when you were taken to Ravenhall Correctional Centre on 22 December 2018, the Justice Health notes show that your state was:

'Untidy, unkempt, disorganised, vague and perplexed, restless, anxious, hyper-vigilant.' 

37She stated:

'At the time of the offending, Mr Elidemir's mental illness in resolving psychotic symptoms, possible acquired brain injury and/or intellectual disability and possible illicit drug use are likely to have impacted on his ability to think clearly and his judgement was likely to have been impaired as a consequence of these actions.'

38Clearly because of your psychiatric illness, prison is more difficult for you than for other people, and can lead to a deterioration in your mental health. 

39This matter has been before the court on several occasions, because of the problem of homelessness.  On each occasion, your mother has been present and has been of great assistance to the court.

40You have now been in custody for a period of 270 days.  On each occasion that you have presented before a court, you clearly showed distress, signs of both intellectual disability and in particular, psychiatric unwellness.  It would appear that your situation in gaol has not settled, and you have shown great distress in being there.

41Ultimately and thankfully accommodation has been found for you.  I am concerned that protection of the community has become an important principle in dealing with you because of the continuing nature of your offending, and indeed, this offending is the most serious offending on its face, or at first glance, that you have engaged in.  You have never previously appeared before the County Court.

42However, it is perfectly clear in my view that you were not well at the time of this offending; that in terms of the seriousness of this offending within the range of seriousness this was very much at the lower end of that scale.

43I am satisfied that your time in gaol has been extremely difficult for you.  Your medication regime appears to have stabilised to some extent. 

44It was extremely difficult to find accommodation for you and I am anxious that this accommodation be made available to you.  It is not appropriate, in my view, given the nature of this offending and your own inherent difficulties, that I sentence you to a term of imprisonment that keeps you in gaol any longer.  Gaol is not, in my view, appropriate accommodation for someone such as yourself. 

45I also make the note that given your mental health and history, you are not a suitable vehicle for general deterrence.

46I had you assessed for suitability to be placed on a Community Corrections Order and unsurprisingly you were found not to be suitable.  Notwithstanding that finding by the assessing corrections officer, I have decided to sentence you to a disposition which involves a term of imprisonment and then release on a Community Corrections Order. 

47I agree with the general view of the community corrections officer that your capacity to abide by or obey a large numbers of conditions on the Community Corrections Order is simply not sufficient, such that I should not impose an order containing a large number of conditions. 

48Your problems are psychiatric in nature, you have been linked in with a mental health service and your mother remains a constant in your life; she is thoroughly aware of your condition, and will ensure, as will those involved in your accommodation, that you are linked in to appropriate mental health services.  Can you stand up please, Mr Elidemir. 

49ACCUSED:  Yes, I can, Ma'am.

50HER HONOUR:  This is really important, okay?

51ACCUSED:  Yes, Ma'am.

52HER HONOUR:  I am going to let you go today.

53ACCUSED:  Yes.

54HER HONOUR:  Your mum is going to take you to a place called, 'Brunswick Lodge.'

55ACCUSED:  Yes, Ma'am.

56HER HONOUR:  And that is where you are going to live.

57ACCUSED:  Yes, Ma'am.

58HER HONOUR:  You have to take your medication.

59ACCUSED:  I will Ma'am.  There's excursions too. 

60HER HONOUR:  Are there?

61ACCUSED:  Yeah.

62HER HONOUR:  Excellent.

63ACCUSED:  Thank you. 

64HER HONOUR:  So there will be things to do.

65ACCUSED:  Thank you.

66HER HONOUR:  You cannot do this, okay?

67ACCUSED:  No, I won't, Ma'am.

68HER HONOUR: No, you just cannot - you hate going to gaol, don't you?

69ACCUSED:  Yes, I do, I hate it, I hate it.

70HER HONOUR:  I know you hate it, yes.

71ACCUSED:  I hate it. 

72HER HONOUR:  I know you hate it, and it is really, really important that you understand if you take drugs ‑ ‑ ‑ 

73ACCUSED:  Yes Madam.

74HER HONOUR:  ‑ ‑ ‑ you are going to need money to pay for those drugs, aren't you?

75ACCUSED:  Yes, Ma'am, with all my heart.

76HER HONOUR:  You have not got money to pay for drugs.

77ACCUSED:  No, I don't, it's only for rent and for my school books and stuff like that.

78HER HONOUR:  Good, okay, so you have to understand this.

79ACCUSED:  Yes, Ma'am.

80HER HONOUR:  I have to explain the conditions on the Community Corrections Order, okay?

81ACCUSED:  Yes, Ma'am.

82HER HONOUR:  So you have to report to the community corrections officer by Monday.

83ACCUSED:  Yes, Ma'am.

84HER HONOUR:  Sorry, by Tuesday.  All right, Mrs Elidemir, can you help him with the - I do not know how you fit everything in, but he will need to be taken there.  While you are on the order which will last for 12 months, you cannot get into trouble. 

85ACCUSED:  Yes, Ma'am.

86HER HONOUR:  If you get into trouble, I might have to send you back to gaol. 

87ACCUSED:  Yes, Ma'am, I know.

88HER HONOUR:  Okay, I will have to send you back to gaol.

89ACCUSED:  Yes, Ma'am, I know.

90HER HONOUR:  If there is any change of your address or employment, you have to tell community corrections within 48 hours.  You have to do everything corrections tell you to do.  You cannot report to corrections if you are under the influence of alcohol or drugs.

91ACCUSED:  No alcohol or drugs. 

92HER HONOUR:  No, and you have to have visits from the community corrections office and you are not allowed to leave Victoria unless corrections says you can.  The only special condition I am going to attach is supervision.  All right, do you understand that?

93ACCUSED:  I do understand that.

94HER HONOUR:  I hope you understand.  You have a seat, Mr - do you want to go on the order?  Are you prepared to go on the community ‑ ‑ ‑ 

95ACCUSED:  I'm prepared.

96HER HONOUR:  Good.  You have a seat.  The letter that I have dated 12 September 2019, is from Celeste Webbie, who is a solicitor, the homeless practitioner for the Melbourne City Mission, and she has gone to an enormous amount of trouble to arrange for you to be living at Brunswick Lodge and this is a supported residential service which includes accommodation, assistance with administering medications, food and on-going social supports amongst other services. 

97In my view, it is entirely appropriate that that is where you are to be placed, and I note that Ms Webbie also spoke to your mother who has agreed to assist to support you while you are there. 

98In all the circumstances therefore it is my view that on an aggregate basis I sentence you to a term of 270 days imprisonment which has already been served by way of pre-sentence detention, and you are then to be released on a Community Corrections Order in the terms I have outlined.  Okay.  I do not want you coming back in front of me for getting into trouble, Mr Elidemir.

99ACCUSED:  I will not, I will not.

100HER HONOUR:  You can have a think about your mum who is so supportive and so good. 

101ACCUSED: Thank you.

102HER HONOUR:  All right, you have a seat. 

103ACCUSED:  Thank you very much, and I'm so sorry for whatever I done, I've learned my lesson.

104HER HONOUR:  I hope so.

105ACCUSED:  I - I - my wee test came back negative.

106HER HONOUR:  Good.

107ACCUSED:  And my mum's been very supportive but she couldn't come all that way all the time.

108HER HONOUR:  No, you have got such a good mum.

109ACCUSED:  Yes.

110HER HONOUR:  Such a good mum.

111ACCUSED:  Yes, thank you very much.  Thanks. 

112HER HONOUR:  Thanks Mr Elidemir.  All right.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years in order that you serve a minimum term of 12 months.  Thanks Mrs Elidemir.  Thank goodness, that we got something for your boy.

113MRS ELIDEMIR:  Thank you.

114MS BURNETT:  Compensation, disposal and compensation Your Honour. 

115HER HONOUR:  I am not going to order compensation, because it is just - and there - the situation is that where there is simply no chance of getting it back, there is just no point Ms Burnett and I'm not going to.

116MS BURNETT:  As Your Honour pleases. 

117HER HONOUR:  I want to make it clear that to the victims that it is in no way being dismissive of what they underwent.  There were no victim impact statements, were there?

118MS BURNETT:  No, there's not, Your Honour.

119HER HONOUR:  No. I note that there were no victim impact statements.  Thank you very much.  We will just - could we just return - yes, okay, thank you very much, we will get Mr Elidemir to sign that.  Is there a disposal order on the file?  No, that is all right, I can do it now.  What is the date?  The 13th, isn't it?

120MR KENNY:  Your Honour, may I approach the dock while he is ‑ ‑ ‑ 

121HER HONOUR:  Yes, of course.  He knows when he sees the (indistinct) Mr Kenny.

122MR KENNY:  Yes.

123HER HONOUR:  He's had a few of them.  All right, there is the disposal order, thank you Ms Burnett.

124MS BURNETT:  Thank Your Honour.

125HER HONOUR:  Thank you for your assistance.  Mr Elidemir?

126ACCUSED:  Yes sir?

127HER HONOUR:  All right, we are all right?

128ACCUSED:  Yeah, I'm all right.

129HER HONOUR:  Good. Thank you.  Yes, thank you.  We will now adjourn the court sine die. 

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