Director of Public Prosecutions v Ercihan

[2018] VCC 364

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01688

DIRECTOR OF PUBLIC PROSECUTIONS

v

EREN ERCIHAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2018
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Ercihan
MEDIUM NEUTRAL CITATION:	[2018] VCC 364

REASONS FOR SENTENCE
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Subject: Using a Carriage Service to Menace or Harass, False Imprisonment and 7 others.
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr H. Rattray

HIS HONOUR:

1You have pleaded guilty to nine charges of varying kinds contained in indictment H10610386.  In addition you have pleaded guilty to two summary assault charges and agreed to have them dealt with by me in this court.  The maximum penalty for each of these summary offences is imprisonment for three months.

2The first charge is a Federal offence.  It is a charge of using a carriage service to menace or harass.  The maximum penalty for this offence is imprisonment for three years.

3The remaining charges are each State offences.

4Charge 2 is a charge of false imprisonment for which the maximum penalty is imprisonment for 10 years.

5Charges 3 and 4 are each a charge of criminal damage for which the maximum penalty is also imprisonment for 10 years.

6Charge 5 is a charge of intentionally causing injury for which the maximum penalty is also imprisonment for 10 years.

7Charge 6 is a charge of making a threat to kill for which the maximum penalty is also imprisonment for 10 years.

8Charge 7 is a charge of procuring sexual penetration by threat for which the maximum penalty is also imprisonment for 10 years.

9Charges 8 and 9 respectively are each charges of possessing a drug of dependence for which the maximum penalty in the circumstances where you did not possess the drugs for trafficking, as here, the maximum penalty is imprisonment for one year.  In the case of possession of cocaine,  Charge 8,  the court may impose a fine not exceeding 30 penalty units.  In the case of cannabis, Charge 9, the court may impose a fine not exceeding five penalty units.

10The circumstances of your offending are summarised in a prosecution opening prepared for the plea.  It was read in open court by the prosecutor Mr Cordy.  Your counsel Mr Rattray accepted the summary was accurate for the purposes of sentencing you.  It is not necessary that I here repeat in full that which is contained in the summary and will do so only in an abbreviated way.  These sentencing remarks need be read however in conjunction with the prosecution summary.

11At the time of this offending you were aged 27.  Your victim with whom you had been in a tumultuous relationship for about three months was aged 21.  She lived with her parents and siblings in Thomastown and you lived in a complex of units occupied by other members of your family in St Albans.  You worked in your father’s business in Campbellfield.

12The victim broke off her brief relationship with you but you would not take no for an answer.  On 2 March 2017 you began calling and messaging the complainant on her mobile phone.  Over the next two days you either messaged her or tried to contact her by this means many hundreds of times.  This founds Charge 1. 

13Your messages contained threats.  One such threat I was told by the prosecutor was to publish intimate photos of the victim on the internet.  You have a prior conviction in 2012 for conduct of this kind.

14The following day you attended near her home and left a note on her car.  After she was contacted by your father the victim made contact with you and arrangements were made to meet and discuss your relationship breakup.  The victim went to your place of work and you met in her car after which you became angry and began to scream at her because she had a bruise on her neck and you suspected she had been with another man.  You became angry and knocked the internal rear vision mirror off the windscreen.  Charge 3.  The victim asked you to leave but you refused and began to verbally abuse her and told her to go to your house.

15The victim was put in fear by the way you treated her and she drove to your house with you following in another car.   Upon arrival you demanded her mobile phone and her car keys and threatened to beat her if she did not comply.  You pushed her inside further verbally abusing her.  You smashed her mobile phone and car key. Charge 4.

16You then demanded the victim undress herself and get into your bed.  She said she did not want to but you pushed her onto the bed.  You then took hold of the victim before telling her to sit on the floor.  You kicked her thigh causing bruising and the victim begged you to stop.  Summary Charge 7.  Then got a knife from the kitchen  and held the length of the blade against her neck whereupon the victim became very fearful and went into shock.  You then placed the blade at the back of the victim’s neck.  Summary Charge 6.

17You then threatened to burn down the victim’s house and kill her siblings.  Charge 6.

18When the victim wanted to leave you told her to come back saying “You’re not leaving.” Charge 2. 

19You told her you wanted to have sex with her and she refused.  The victim went to get help from your family but you stopped her purporting to comfort her.  You acted in a Jekyll and Hyde manner towards her.  You placed the victim in fear of you and she felt she had to comply with what you wanted.  The victim suffered from cuts and abrasions on her legs and scratches and red marks on her neck and bruising on her arm and shoulder along with emotional distress.

20You then drove the victim to her house where there was no-one home.  You followed her into the bedroom where you pushed her onto the bed and told her to remove her underwear.  The victim was tense and because of the way in which you had treated her both with threats and assaults she complied.  You then removed your clothing and had sexual intercourse with her during which the victim remained passive.  You told her you are the only one who was going to have sex with her and no-one else.  The complainant only had sexual intercourse with you because of the repeated threats and intimidation that you had levelled at her before you had intercourse with her.  The threats and intimidation consisted of the hundreds of messages in a short time, the assaults using the knife and kicking, the threats to kill, the refusal to allow the victim to leave and the damage to her property.  Charge 7.

21Charges 8 and 9 arise from drugs found in your possession when the police searched your home.  It is not alleged you possessed these drugs other than for self-use.

22This is thus serious offending in a relationship context by a male against a female.  In offending of this kind the purposes of sentencing must appropriately address deterrence, both general and specific, denunciation, just punishment and must have proper regard for your prospects of rehabilitation.  The offending in Charge 7 is not a common offence but it is one which fits your criminality properly in my view.  Here there can be less reliance on general deterrence but because of your peculiar criminal behaviour the sentence must properly address specific deterrence.

23When arraigned, you admitted a prior conviction for blackmail in this court in 2012 when you were placed on a community corrections order with conviction for a period of 2 years and ordered to undertake 250 hours unpaid community work.  You breached that order and in June 2013 the community corrections order was cancelled and you were sentenced to two months imprisonment wholly suspended. 

24I was told the blackmail offence also occurred in the context of a relationship breakup where you had taken intimate photographs of a former partner and another man and threatened to expose these on the internet.  You are a person who clearly has little regard for women and you are jealous and possessive.  In passing sentence I have taken this prior conviction into account as I must because there is a need for my sentence to properly reflect specific deterrence.

25Both the prosecution and the defence agreed here that there was a need for considerable concurrency or overlap of the sentences imposed on the Charges 1 to 6 and the summary charges with the sentence imposed on Charge 7.  That is because it is your conduct constituting those charges that makes up the threats and intimidation that leads to Charge 7.  I accept those submissions and act upon them.

26In sentencing you for the federal offence in Charge 1, I must have regard to the matters contained in Part 1B of the Crimes Act and particularly the non-exhaustive matters set out in s.16A(2) of that Act.  In passing sentence upon you on Charge 1, I have had full regard to these matters.

27Importantly for you, and to your credit, you have pleaded guilty to the charges and you indicated that you would do so at the first available opportunity at a committal mention.  Because you have pleaded guilty you have saved the time and costs of what might have been a lengthy and costly of what might have been a lengthy and costly trial involving many witnesses.  Because you have pleaded guilty you are entitled to a reduction in the sentence that you will receive because of your plea and this will be reflected in the sentence that I will shortly pass.  Further, I treat your guilty pleas as evidencing genuine remorse on your part for your crimes.

28Mr Rattray filed a brief outline of submissions which I marked as Exhibit 1.  He also relied upon a CISP report dated 18 April 2017 which became Exhibit 2.  Other exhibits were a psychiatric report from Dr Sullivan, Exhibit 3 and a psychological report from Dr Barth,  Exhibit 4 and a report from Relationships Australia, Exhibit 5 and a report from IPC Health, Exhibit 6.

29I received into evidence a bundle of ten character references, Exhibit 7 and a letter written by you to the victim in which you apologise for your conduct and express your shame and regret, Exhibit 8.

30Mr Rattray conceded appropriately that your conduct was serious and that the cumulative effect of your threats and intimidation towards the victim led to you having sexual intercourse with her.  He submitted that there was utility in your guilty plea in the unusual circumstances leading to the charging of Charge 7 and I accept that to be the case.

31Relying upon what was said by Dr Sullivan at paragraphs 54 to 60 Mr Rattray submitted that you are a good person who at the time of the offending was dysregulated. He opined you suffer from a personality disorder and that prison would be more burdensome for you in consequence because you will not have access to appropriate medication.  Dr Sullivan thought you suffer from anxiety and depression for which you should be appropriately medicated along with ongoing psychological intervention.

32You attended Dr Barth for psychological treatment on 8 occasions between 8 June 2017 and 15 January 2018.  Dr Barth opined that you have good insight into your behaviour and that this has been enhanced with treatment.  You told Dr Barth that what you did was wrong.  He thought that you have begun to address anger management and substance abuse issues.  I accept you are now remorseful.

33The character references each speak well of you although some of the writers have only known you for a relatively short time.  One reference was supplied by a friend whom you met whilst you were both undertaking the men’s behavioural program.  Another was from your present partner with whom you have also had a relatively short relationship.  She speaks highly of you as a good natured person and someone whom she feels safe with.  I have little doubt that in a general sense you are a good person.  Your offending both here and previously arises in the context of relationship break up where, as I say, you have refused to take "No" for an answer and you have little respect for women.

34You were born in Australia.  Your parents separated when you were about aged eight.  You attended primary school in St Albans  and left secondary school at Year 11 which you later repeated at Victoria University of Technology.  You told Dr Sullivan you had difficulty making and keeping friends and that you were bullied at school.  You had various jobs in a supermarket and a pizza shop before commencing work in your father’s confectionary business.  You also told Dr Sullivan that you have had a number of relationships with women and of the problems which you have had in them.

35Dr Sullivan reported that you have had treatment in the past from a psychiatrist and for depression.  You have also used various drugs which Dr Sullivan also outlined as you had reported to him.  You were not drug affected at the time of offending.

36You were remanded in custody at the time of your arrest and you have now served 105 days pre-sentence detention.  When granted bail it was a condition that you participate in the CISP program, which you did successfully and you had to engage in a men’s behavioural program as a condition of bail which you have done at Relationships Australia attending 12 out of 14 sessions.

37Mr Rattray submitted that I should impose a combination sentence of a term of imprisonment of up to one year and a community corrections order.  Mr Cordy told me that if I was persuaded that this was appropriate that such a disposition would not constitute appealable error.  In my judgment, a combination community corrections order and a term of imprisonment would not meet the purposes of sentencing appropriate in this case.

38Whilst I accept that since this offending you have engaged in a men’s behavioural program and have sought psychological help, I am of the opinion the prospects for your rehabilitation must remain guarded. This was serious offending which caused physical and psychological harm to the victim as may be expected and as she has set out in the victim impact statement that was tendered as Exhibit B.  The sentence imposed must properly reflect the gravity of your offending behaviour and appropriately deter others and you from offending in this way again. 

39As I have indicated the sentences I will impose will allow for full concurrency with the sentence imposed on Charge 7.  I have taken the view that with the exception of Charges 8 and 9, your offending conduct in Charges 1 to 6 and the summary charges was all directed to the purpose of you having sexual intercourse with the victim and you would not have achieved this without first threatening and intimidating her in the way that you did.

40On Charge 1, the Federal charge,  you are convicted and sentenced to a term of imprisonment of 12 months.

41On Charge 2 you are convicted and sentenced to a term of imprisonment of 6 months.

42On Charge 3 you are convicted and sentenced to a term of imprisonment of one month.

43On Charge 4 you are convicted and sentenced to a term of imprisonment of one month.

44On Charge 5 you are convicted and sentenced to a term of imprisonment of one year.

45On Charge 6 you are convicted and sentenced to a term of imprisonment of one month.

46On Charge 7 you are convicted and sentenced to a term of imprisonment of 4 years.

47On Charge 8 you are convicted and discharged.

48On Charge 9 you are convicted and discharged.

49On each of the summary charges numbered 6 and 7 respectively you are convicted and sentenced to a term of imprisonment of one month.

50I direct that the sentence in respect of the Federal Offence in Charge 1 commence this day. Pursuant to S.19AD(4) of the Crimes Act I decline to make a reconnaissance release order in relation to that sentence imposed on Charge 1 because you will still be in custody on sentences arising from State charges within s.19AD(4)(b) of the same Act and I direct my reason for declining to do so be entered into the records of the court.

51I direct you serve a minimum term of 2 years and 8 months before being eligible for release on parole.

52For the purposes of s. 6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of 6 years and I would have fixed a non-parole period of 4 years before you would have been eligible for release on parole.

53I declare that there have been 105 days pre-sentence detention under the sentences passed this day and direct that 105 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

54I have been asked to sign a disposal order which was not opposed and I have signed it.

55I have also been asked to make a forensic sample order under s.464ZF of the Crimes Act.  That was also not opposed and for the reasons stated in the order I have signed it which means that whilst in prison you may be approached by a police officer to take a swab from your mouth and if you refuse he may use reasonable force to obtain the sample from you.

56Are there any matters arising out of that, Mr Rattray?

57MR RATTRAY:  No, sir.

58HIS HONOUR:  Mr Cordy?

59MR CORDY:  No, Your Honour.

60HIS HONOUR:  Thank you.  Would you remove Mr Ercihan please?

61(OFFENDER REMOVED)

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