Director of Public Prosecutions v Erden

[2016] VCC 1106

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00040

DIRECTOR OF PUBLIC PROSECUTIONS

v

CENMALETTIN ERDEN

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2016
DATE OF SENTENCE:	28 July 2016
CASE MAY BE CITED AS:	DPP v Erden
MEDIUM NEUTRAL CITATION:	[2016] VCC 1106

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms I. Moffatt	Office of Public Prosecutions
For the Accused	Mr P. S. Kilduff	Stary Norton Halpen

HIS HONOUR: 

1Mr Erden, you have pleaded guilty to one count of armed robbery.  You have heard the learned prosecutor, it was then Ms Saville, tell this court that the maximum sentence that can be imposed for the offence of armed robbery is
25 years' imprisonment.  That maximum sentence should indicate to you and to the community generally that this is indeed a serious offence.  Parliament fixes the maximum sentences on behalf of the community.  Twenty-five years is as big as it gets.

2For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.  Mr Erden, it was at approximately 12.15 am on Thursday
8 October 2015, that you attended at the B.P. service station, located at
8040 Melbourne Road, Goulburn Valley Highway, Kialla.  You were then armed with a machete.

3You approached the service station store entrance, the store entrance door and at that time, you were wearing a rubber face mask.  You had a machete concealed within your clothing.  To prevent robberies, the owners and managers of this service station had arranged that the entrance doors to the service station be locked between the hours of ten pm and five am.  One could only gain entrance to this outlet by the console operator within releasing a mechanism as a result of a button being pushed on the outside by whomever wished to enter.

4The customer, desirous of entering the store, had, as I have just said, a press button placed near the entrance.  You, upon realising that you could not gain access to the store, removed your mask and pressed the entrance button.  The console operator had not seen you remove your mask.  That console operator then assumed, understandably, that you were a customer and he, or she, I think it was a gentleman, remotely unlocked that entrance door, thus allowing your entry into the premises.

5Having entered the premises, you walked briskly to the counter and demanded cash and cigarettes from the console operator.  On this gentleman's hesitation to your demand, you produced the machete from your clothing.  You are then holding the machete under the wire barrier that separated you and the console operator at the counter and commenced waving the machete at the unfortunate victim. 

6Quite incredibly, you were unmasked during this time.  But then having waved the machete and demanded cash and cigarettes, you then placed the mask over your face, in a blatant attempt to conceal your identity.  As I understand it, the mask had been removed to the top of your head. 

7Among other material, the machete and mask are depicted in the photographic exhibits produced by the prosecution.  The machete by itself is a frightening weapon and the mask is indeed hideous and might well invoke fear in some people. 

8The console operator, or the victim, then placed cash, I understand it to be $280, and ten packets of Choice cigarettes, into a plastic bag that you had handed to him.  You then grabbed that bag from the victim and hurriedly left the store, ran around to the back of the store and ran in a southerly direction along Melbourne Road, that is, back towards Melbourne.

9When you reached the Mediterranean Pool store, which is also in Melbourne Road, and as I understand it, because I have lived in Shepparton over a number of years, the Mediterranean Pool shop is virtually the next shop along Melbourne Road from the BP service station, when proceeding from the north to the south. 

10At the Mediterranean Pool shop, you stopped and removed your jeans, your shoes and jacket, and threw them, together with the machete and facemask, over the pool shop fence, into an in-ground swimming pool that was on display in the front yard of the pool shop. 

11Approximately 20 minutes after this escapade, you were sighted approximately 250 meters from the service station by patrolling police officers.  You were then wearing shorts, a white T-shirt, and you had no shoes on.  At this time you were carrying a white plastic bag.  The police officers stopped and spoke with you.  No doubt they had been called to the scene and found you quickly thereafter. 

12Upon being spoken to by these policemen, you stopped, you threw the plastic bag onto the ground and placed your hands upon your head.  You readily admitted the offences.  The plastic bag was found to contain packets of cigarettes and when you were searched by the police officers, $280 in cash was found within your clothing.

13In addition, you directed the police officers to the Mediterranean Pool outlet, where you had discarded the machete, the facemask and your clothing.  The police officers retrieved all of those items.  All of your criminal activity was recorded on the store CCTV. 

14When interviewed, you made "no comment" record of interview, which of course is your right.

15Mr Erden, your counsel, Mr Kilduff, in his eloquent plea on your behalf, concedes that this is a serious offence. 

16Mr Erden, you are now aged 48, having been born on 12 October 1968.  When you were a small infant, aged approximately four months, your parents emigrated from Turkey.  Since arriving in Australia, generally speaking, they have been employed picking fruit and vegetables along the eastern seaboard of Australia.  They presently reside in the caravan park in Shepparton, following that occupation. 

17You have two siblings, a brother and a sister, with whom you have little or no contact.  Apparently sometime in the past, your brother severely assaulted you with a cricket bat.  You suffered frontal lobe damage in this assault by him. 

18Also in the past you were married and from this union, you have two children, one aged 15 and one 16.  You have had no contact with these children or nor, I infer, their mother. 

19Mr Erden, you have an extensive criminal history.  You have 13 previous court appearances, in addition to numerous indictable offences such a burglary, theft, possessing weapons and numerous serious assault related criminal material.  You have one robbery conviction, four attempted armed robbery convictions, and four separate armed robbery offences. 

20Mr Kilduff correctly submits that you are now institutionalised, you having served a significant time in custody for many and varied offences with which you have been charged. 

21You will recall that I mentioned the late father, Reverend Father Brosnan and how he made observations of those who are 45 onwards, finally wake up to themselves.  He said they realised they have been a mug.  I have explained why he used those words, and that you, generally speaking, are in that age group and finally realise, "I better change my ways.  I'm not going to spend the rest of my life locked in gaol."  It is to be hoped that you now have finally seen the light and genuinely wish to rehabilitate from your past life of crime. 

22I do note that your parents remain supportive of you.  As you well know, they attended court in Shepparton for this plea hearing, demonstrating that support.  I understand they are not here today, but that is understandable, it is a long way from Shepparton to Melbourne, but they certainly demonstrated their support when the plea was conducted in Shepparton last week.

23The console operator has indicated in his statement that he was very frightened by this armed robbery. 

24The proprietor of the BP service station, or manager, has filed a victim impact statement.  You have heard the learned prosecutor, Ms Saville, read that victim impact statement into the court transcript.  I repeat, that lady's name, the manager, Judith Meloni, among other things said this:

"In this industry, it is extremely hard to employ staff."

25Then later on she goes on to say:

"We ensure that all safety aspects are in place to keep them safe."

26Then a little later, in the same victim impact statement, Ms Meloni said this:

"This person has taken away from staff the feelings of safety for a few dollars."

27Mr Erden, you apparently were using methamphetamine at the time and you continue to struggle with that addiction.  It is a plague, methamphetamine, in our society and apparently from what I am told frequently in court by barrister such as Mr Kilduff, Ms Moffatt and others, it is a very, very addictive drug,
a very damaging drug and extremely hard to shake off.  So despite your age, you are still struggling with that addiction. 

28You have indeed expressed your remorse from the dock for your actions on this occasion.  Your counsel, in his plea, has further indicated your remorse. 

29Would you stand up please.

30Mr Erden, I assure you that I have taken into account all that has been said on your behalf by Mr Kilduff.  I take into account your plea of guilty, which is, in itself, indicative of your remorse. 

31Mr Erden, the principles of sentencing call for specific deterrence and general deterrence, especially in offences such as this offence.  Console operators, working at night on their own, are "soft targets".  This offence sadly is far too common within our community. 

32In exercising the specific deterrence and general deterrence principles, a just sentence must be imposed.  Such offending is to be denounced in the strongest of terms. 

33On the count of armed robbery, you will be convicted and sentenced to be imprisoned for a period of six years. 

34You are to serve a minimum term of four and a half years before being considered as eligible for parole. 

35You are entitled to be given credit for s.18. Is it agreed what the credit is,
Mr Kilduff, the credit in number of days? 

36MR KILDUFF:  Two nine four, I think it is. 

37MS MOFFATT:  Yes, that's correct, Your Honour.

38HIS HONOUR:  That is as of today?

39MS MOFFATT:  That is not including today's date, Your Honour.

40HIS HONOUR:  Not, but up to today, 294?

41MS MOFFATT:  Yes.

42HIS HONOUR: Pursuant to s.18 of the Sentencing Act, you are to be given credit for having served 294 days' of imprisonment. 

43There is a forfeiture order to be made in relation to the material, such as the machete and the mask, the rubber mask that was seized to be forfeited.

44I believe the only other order I am bound to make is pursuant to s.6AAA of the Sentencing Act, had it not been for you plea of guilty, I believe I would have imposed a prison term of at least seven years, with a minimum term of five and half years.

45MR KILDUFF:  If Your Honour pleases

46HIS HONOUR:  Thank you. 

47MR KILDUFF:  Your Honour, the summary offence ‑ ‑ ‑

48HIS HONOUR:  Just take a seat.  Yes, Mr Kilduff.

49MR KILDUFF:  The summary offence matter. 

50HIS HONOUR:  I forgot about that.  She was out ‑ ‑ ‑

51MR KILDUFF:  It is the commit an indictable offence while on bail.  I think ‑ ‑ ‑

52HIS HONOUR:  Yes.  You are convicted and sentenced to seven days' imprisonment on the summary offence.  That sentence is to be served concurrently with the offence of armed robbery. 

53MR KILDUFF:  If Your Honour pleases.

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