Director of Public Prosecutions v Ercan
[2023] VCC 898
•7 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02153
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YASEMIN ERCAN |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2023 | |
DATE OF SENTENCE: | 7 June 2023 | |
CASE MAY BE CITED AS: | DPP v Ercan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 898 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Plea of guilty – Attempt to Pervert the course of justice – Drive whilst disqualified – State false driver – Less serious example of offending –Supportive family – Domestically violent ex-partner – Mixed Depressive and Anxiety Disorder – Substance Abuse Disorder – Verdins – Limited criminal history – Positive prospects of rehabilitation – Delay – General deterrence primary consideration – Specific deterrence given minimal weight – COVID-19 pandemic.
Legislation Cited: Road Safety Act 1986 – Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169 – Director of Public v Prosecutions v O’Neill (2015) 47 VR 395.
Sentence: Community Correction Order for a period of 18 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Kapitaniak | Office of Public Prosecutions |
| For the Accused | Dr Gideon Boas | Theo Magazis & Associates |
HIS HONOUR:
Introduction
1Yasemin Ercan, you have pleaded guilty to one charge of attempting to pervert the course of justice contrary to common law, which carries a maximum penalty of 25 years imprisonment (Charge1).
2You have also pleaded guilty to the related summary offence of drive whilst disqualified contrary to s 30(1) of the Road Safety Act 1986, which carries a maximum penalty of 2 years imprisonment (Summary Charge 21).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were born in July 1999 and were 20 years of age at the time of offending.
6You were married to Ibrahim El Sayah and at the time of the offending and you were both living in a unit in Pascoe Vale, Melbourne.
7You attempted to pervert the course of justice by making false admissions to police, that you were the driver of a speeding car, when you were not in fact the driver, Mr El Sayah was.
8On 13 April 2020 at approximately 4.30 pm, you were the front passenger of a silver Mercedes Benz C 63 S Sedan, registration BBM 339 (Mercedes Benz) driven by Mr El Sayah. You were both travelling along the Calder Highway in Keilor, between Green Gully Road and the Melton Highway off ramp.
9Police members were monitoring traffic along the Calder Highway at various locations.
10Sergeant Joannidis was using a Pro Laser 4 speed detector. As Sergeant Joannidis was intercepting another vehicle, the Mercedes Benz driven by Mr El Sayah sped past. Using the Pro Laser speed detector, Sergeant Joannidis captured the speed of the Mercedes Benz to be approximately 140km/ph.
11This information was passed on to other members of police who were further along the Calder Highway, including Leading Senior Constable Rodney Hudson, who was intercepting another vehicle when the Mercedes Benz passed him.
12Other police members attempted to intercept the Mercedes Benz to no avail.
13Leading Senior Constable Rodney Hudson quickly returned the driver licence to the other motorist he had intercepted and ran back to his police car and followed the Mercedes Benz.
14The Mercedes Benz had exited the Calder Highway via the Melton Highway off ramp and turned into Sunshine Avenue in Taylors Lakes and continued to travel at a high speed.
15Ultimately the Mercedes Benz stopped in Gottard Court. While trying to locate the Mercedes Benz, Leading Senior Constable Rodney Hudson was assisted by workers on Sunshine Avenue, who pointed out that the Mercedes Benz had turned on to Aldershot Drive.
16Leading Senior Constable Rodney Hudson located the Mercedes Benz in Gottard Drive, approximately three minutes from being advised by Sergeant Joannidis about the Mercedes Benz.
17Leading Senior Constable Rodney Hudson observed you and Mr El Sayah standing near the Mercedes Benz.
18A Body Worn Camera worn by Leading Senior Constable Rodney Hudson captured the location of the parked Mercedes Benz and conversation with you.
19Leading Senior Constable Rodney Hudson approached you and Mr El Sayah.
20You were asked if you were driving the Mercedes Benz as Mr El Sayah had immediately said he was not driving as he had no licence. You agreed and stated that you had been driving the Mercedes Benz (Charge 1 – Attempting to Pervert the Course of Justice)
21You were asked for your driver licence and produced a probationary Victorian driver’s licence.
22The Mercedes Benz was impounded pursuant to s 84 of the Road Safety Act 1986.
23The Calder Highway is an 80 kilometre per hour zone.
24Following the intercept, listening devices were placed in several vehicles associated with you, including a Grey Audi Wagon, with registration ending 444.
25Captured on the listening devices were three conversations with you, discussing how you were not the driver of the Mercedes Benz on 13 April 2020. Summaries of those conversations are reproduced in the prosecution opening tendered on the plea.
Related summary offence
26On 24 July 2021, your licence was disqualified for failing to undertake the safe driving program. The disqualification lasted until the program was completed.
27You were identified on CCTV footage from Burwood Road in Hawthorn, leaving and arriving the car park in your vehicle, whilst your licence was disqualified, between 24 November 2021 and 21 December 2021. You drove a number of times in the period (Related Summary Offence, Charge 21 – Drive whilst Disqualified).
28On 22 December 2021, you were arrested and answered “no comment” when interviewed.
Nature and gravity of the offending
29Attempt to pervert the course of justice is an inherently serious offence which is reflected in the maximum penalty of 25 years imprisonment. It is conduct that is designed to interfere with the administration of justice, which necessarily depends upon the system operating without impediment so that people who commit crimes are held to account. However it is also an offence that captures a wide range of conduct.
30In this instance, the circumstances of the offending demonstrate that your decision to say to the police that you were driving the car was a spur of the moment decision clearly made in order to protect your then partner, Mr El Sayah, who was in fact driving the vehicle at the relevant time. Dr Boas, who appeared on your behalf, submitted that the nature of your relationship with your ex-partner was one of intimidation and coercion, influencing your decision to protect him. This is explored further below, however I accept it is a relevant matter to be taken into account in assessing your moral culpability.
31It was further submitted that the facts in this instance place your conduct at the lowest end of the scale of the offence of attempt to pervert the course of justice. Other more serious examples may include threats or violence towards a witness during the criminal process. I accept that in all the circumstances your offending is not in the highest category of attempting to pervert the course of justice, nonetheless, the offence remains inherently serious.
Personal circumstances
32You are 23 years old. You were born and raised in Melbourne with your younger sister. Your mother was also born in Australia. Your father was born in Turkey and relocated to Australia when he was three years old. You had a positive childhood but clashed with your parents in your adolescent years, particularly your father, as he was strict and wanted you to comply with ‘traditional’ Turkish cultural expectations and life choices. You reported that your father had sometimes “got physical” with you but were reluctant to elaborate, citing that you still love your parents and do not want to further damage the family relationship. You have a closer relationship with your mother and younger sister, but are not close with your extended family members.
33You attended the Village School in Croydon and then Fintona Girls’ School in Balwyn for Years 5 to 12. You had a strong interest in visual communications and economics and enjoyed a positive friendship circle. While at school you also were involved in dancing and gymnastics but have not pursued any hobbies or recreational activities since then. After completing VCE, you were offered a place in the RMIT Business Studies program but declined. You completed a few short beauty therapy courses, but have not pursued higher learning since.
34At the age of 14, you commenced working part-time at Hairhouse Warehouse but left after 12 months. When you were 18 or 19 years old, you worked in a café owned by your aunty. You have not been employed since this time.
35When you were 18, you met Mr El Sayah, who was four years your senior. He became your first partner and you moved in with him after 12 months. Throughout the course of your relationship, you reported that Mr El Sayah habitually abused cocaine and methylamphetamine. You also reported that he became violent and abusive towards you, often striking your face or pulling your hair when he was “coming down off cocaine”. During this relationship, you used cocaine and other illicit substances on occasion but never habitually used.
36In March 2020, you gave birth to your now three year old daughter you share with Mr El Sayah. In March 2022, you tried to leave the relationship with Mr El Sayah but finally separated in November 2022. You said that you are “too scared to get involved with anyone else” because you “don’t trust anyone”. Your daughter is currently in the care of your grandparents and you visit her regularly. I was not told of the circumstances as to why your daughter is not living in your care.
37During the birth of your daughter, you had an epidural procedure which caused significant spinal pain post birth. You were prescribed Oxycodone to treat it. You also developed postnatal depression. To deal with the physical pain and distress you were experiencing, you began taking Lyrica (Pregabalin), which is usually prescribed to treat epilepsy, pain, opioid withdrawal or generalised anxiety. You reported that you have been using Lyrica unprescribed on and off for the last two years, especially when you are anxious or struggling to sleep. Your use of Lyrica can be categorised as illicit, noting that you are not currently being prescribed any medication or receiving any other treatment.
38You have engaged a clinical psychologist on a few occasions, but have not pursued other referrals as you did not feel you are able to “unravel” your issues. In 2021 and 2022, you engaged counselling sessions with Mr Anthony Tsonis to assist with your AOD issues. You have no history of specialist mental health treatment.
39A report prepared by Ian Mackinnon, consultant psychologist, dated 27 May 2023 was tendered on the plea. Mr Mackinnon provided a detailed history and conducted a psychological examination.
40In Mr Mackinnon’s opinion, you meet the clinical criteria of Mixed Depressive and Anxiety Disorder (MDAD) and Substance Abuse Disorder (SAD), due to your dependency on unprescribed Lyrica. While you exhibit symptoms of Post-Traumatic Stress Disorder stemming from your relationship with Mr El Sayah, that being avoidance behaviour, intrusive thoughts, flashbacks, startle responses and sensitivity to environmental cues and triggers, your symptoms fall short of a formal diagnosis.
41Mr Mackinnon opined that your MDAD significantly contributed to your offending by reducing your capacity to reason and make sound judgements, raising your anxiety levels, lowering your ability to appreciate the likely consequences of your actions and diminishing your ability to maintain awareness to that of a normal adult, and to community standards. He further opines that you were living in a state of heightened anxiety and fear due to the violence you experienced at the hands of Mr El Sayah.
42Mr Mackinnon also states that your substance dependency may have played a role in your offending however your vague account of your substance abuse at the time makes it difficult to draw this conclusion.
43You have a limited criminal history from 2020 consisting of road traffic, assault and dishonesty offending with the highest penalty being a fine.
Sentencing considerations
44Dr Boas highlighted a number of matters to be taken into account in mitigation.
45First is your plea of guilty. Following negotiations, your plea was entered at the committal stage and prior to any contested committal. Thus no witness have been required to give evidence. In the circumstances I accept that your plea is an early plea demonstrating your willingness to facilitate the course of justice. Further, your plea should be given additional weight as it has been entered at a stage where the courts are still labouring under a backlog of cases as a result of the pandemic. [1]
[1] Worboyes v The Queen [2021] VSCA 169, [39].
46Over and above the pleas of guilty, it was submitted that you have demonstrated genuine remorse. Dr Boas relied on the report of Mr McKinnon where he notes that you presented as being ‘genuinely distressed about, and ashamed of’, your involvement in the offending. I accept that you have expressed a degree of genuine remorse and are beginning to gain insight in relation to the destructive nature of the relationship you were in with your ex partner.
47Relying on the opinion of Mr McKinnon, Dr Boas submitted that Verdins principles 1 to 4 are enlivened. Specifically, he relies on Mr McKinnon’s opinion that your MDAD made a ‘significant contribution’ to your offending and ability to make sound judgements. However Mr McKinnon is also is of the view that at the time of the offending you were living in a state of heightened anxiety and fear as a consequence of the violent abuse you were suffering at the hand of Mr El Sayah. In my view, it is difficult on the evidence to disentangle the coercive nature of the relationship with your partner - and the influence of that relationship on your decision to lie on his behalf - with that of your underlying depressive condition in relation to the offending. As such in my view the evidence does not support a ‘realistic connection’ between the MDAD and the offending, or that it ‘caused or contributed to’ or was ‘causally linked’ to the offending.[2] That said, your condition is a matter that I take into account as part of your personal circumstances.
[2] Director of Public v Prosecutions v O’Neill (2015) 47 VR 395, [74].
48It was submitted that delay is relevant in that it is now over three years since the commission of the offending. Further, it is some eight months since the matter resolved. Dr Boas submitted that the delay is significant as you have had this matter hanging over your head for a considerable time in the context of you continuing to suffer from a depressive and anxiety disorder. I accept that delay is a relevant consideration.
49As to your prospects of rehabilitation, the primary submission was that you are no longer in the abusive relationship that influenced your behaviour and decision making and as such, your prospects have improved. While there was little information about your current circumstances in terms of your future endeavours, you have a supportive family network. Relevantly, you are still a relatively young offender and given your limited criminal history, in my view your rehabilitation should take some prominence in the sentence calculus. On the current information in my view your prospects can be assessed positively.
50The authorities are clear that in cases of attempting to pervert the course of justice, general deterrence is the primary sentencing consideration. In this particular circumstance, your false statement to police derailed a criminal prosecution, which was clearly the intention. A message must be conveyed that conduct such as yours will be taken seriously by the courts. As to specific deterrence, it too has a role to play however given your unrelated and limited criminal history, and the fact that you have moved on from the circumstances that existed at the time of the offending, in my view only minimal weight need be given to specific deterrence.
51It was submitted that a financial penalty is sufficient to meet the relevant sentencing considerations however Dr Boas conceded that a community correction order is also within range. Ms Kapitaniak, who appeared on behalf of the Director of Public Prosecutions submitted that a Community Correction Order is the appropriate disposition in the circumstances. In my view a Community Correction Order with a condition to undertake unpaid community work is the appropriate sentence in order to meet the relevant and applicable sentencing considerations in this instance.
Sentence
52Ms Ercan, please stand.
53Yasemin Ercan, on Charge 1, attempt to pervert the course of justice, you are convicted and will be placed on a Community Correction Order for a period of 18 months. In addition to the standard conditions that attach to all community corrections orders, you will be required to complete 100 hours of unpaid community work over the period of the order.
54In relation to Summary Charge 21, drive while disqualified, you are convicted and fined $500.
55Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a Community Correction Order for a period of 3 years with 300 hours community work and supervision.
0
2
0