Director of Public Prosecutions v Erdogan

[2024] VCC 1822

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02017

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAGRI ERDOGAN

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2024
DATE OF SENTENCE:	14 November 2024
CASE MAY BE CITED AS:	DPP v Erdogan
MEDIUM NEUTRAL CITATION:	[2024] VCC 1822

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:            Plea of guilty – Trafficking Cocaine – Knowingly Deal with Proceeds of Crime – Trafficking simpliciter – Limited scope of offending - No criminal history – Good character -  Substance abuse – Mental health - Demonstrated rehabilitation – Genuine remorse – Family hardship – General deterrence – Denunciation – Non-custodial disposition

Sentence:              Community Corrections Order for two and a half years, with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For the Accused	Dr M. Gumbleton	Milides Lawyers

HIS HONOUR:

1Cagri Erdogan, you have pleaded guilty before me to a charge of Trafficking Cocaine and a charge of Knowingly Dealing in Proceeds of Crime.  You have no criminal record and no pending or subsequent convictions.  You were 30 at the time of the commission of the offence, and 31 when you were arrested.

2The circumstances of offending are set out in the Prosecution documents, but the compass of your offending is fairly brief and you are sentenced on the basis of being a go-between, or a drug runner as it has been referenced to in
Dr Gumbleton's outline, on a single occasion, in a single episode, and in essence, you were observed as part of a wider operation involving others further up the hierarchy than you.  You were observed driving to deliver a shopping bag to undercover operatives.  You did not receive payment.

3That bag contained 992 grams of Cocaine.  A commercial quantity of Cocaine is 250 grams.  A large commercial quantity is one kilogram.  So therefore, it is a very significant quantity to traffic, but of course, what is reflected in the charge that you have pleaded to, is that whilst you had sufficient knowledge or sufficient state of mind to be aware that you were participating in the movement of drugs of dependence,  it cannot be proved and established to the requisite degree that you knew or were aware, or reckless as to the quantity.

4So hence the charge of Trafficking simpliciter, and I am very mindful to sentence you on the basis of this discrete episode in an otherwise unblemished history.  The episode reflects that you were in contact with those higher up the chain, in particular Clerk 123.  You performed the very limited role of handing the shopping bag to the buyers, who were in fact undercover operatives.

5You were not provided any cash by undercover operatives at the time of the supply.  You obviously had sufficient involvement to be trusted by those higher up the chain to make that delivery, and it is of course conceded that you were paid for your trouble, but it is quite clear that you are not sentenced on the basis that you received or were entitled to the sum or a portion thereof, of the ultimate price that was paid for that quantity of Cocaine at a later time.  You were sentenced in relation to dealing with the proceeds of crime on the basis of you knowing the money was proceeds of crime.

6Your personal history is very relevant to this sentencing exercise, because, as I have said, yours is an otherwise unblemished history and there was not a lot of detail gone into, as to how you became aligned with - or exposed to the interface with this serious criminal activity, but it was part of the evidence on the plea that you had a substance use issue of prior standing, on the materials before me in relation to that. I have also been provided with materials that touch on your work history, including working in the security industry and working in nightclubs and places of the like, and it may well be that that is how you became susceptible to playing the role that you did in relation to this offending on this occasion, but it is significant that you are now 33.  You were 30 at the time of the offending and just turned 31 at the time of the search and arrest.

7You were born in Turkey.  Your parents are supportive role models, hard working.  Your father was a bricklayer until he was injured in a car accident.  Your mother was the homemaker.  You have a younger brother.  You came to this country when you were around five years of age, raised here in the northwest of Melbourne.  Attended Pascoe Vale Primary School, then Gladstone Park Secondary College.  You completed Year 12 and you went on to further studies in Advanced Diploma in Criminal Justice Studies at Kangan TAFE in Broadmeadows, and then after completing that, you enrolled in a Bachelor of Arts at Victoria University, majoring in criminal justice studies, and you graduated at the end of 2016.

8During that time you funded yourself through those tertiary studies by obtaining a security licence and working casually for a variety of licensed venues, and you continued to work in the security industry for almost a decade.  I was told that your licence lapsed in August 2019.

9Your parents separated when you were 26 years of age, and have re-partnered.  Your de-facto partner of five years is Ms Dowling-Smith; - the materials from her are before me, and you have a daughter, Zahlia, and there were considerable materials filed in relation to Zahlia, who has non-verbal autism, and there were significant submissions made on the plea, which I will turn to in a moment, which are accepted by the Court and accepted by the Prosecution, in relation to the importance of you being available to your partner, but also, in particular, to your daughter Zahlia, to assist in her development.  She attends weekly, doctors, psychologists, and speech pathologists, and is being assisted by the NDIS.

10To your credit, once detected in relation to this matter and apprehended, your response has been exactly what one would expect the response to be for an educated man who has prospects of rehabilitation.  The two significant aspects are, you have addressed your drug addiction issues, with the assistance of Harmony House, and engaged in an intensive and demanding five month rehabilitation through Harmony House, and I take that into account in arriving at the sentence  in this case, not just the fact that it demonstrates rehabilitation during a period of delay, but the onerous aspect of it, of the intensive day program over that period of time is a matter I take into account in arriving at sentence also.

11So that delay is not an insignificant one.  It is now over two and a half years since arrest.  You have worked productively also in that time, and I received materials and references in relation to Jaybar and the work that you do there.  It is a different industry from what you had been working in at the time, and it is a productive one and one in which you have got a very sound future, and so that is two aspects that are influential from a sentencing point of view and, particularly, have been reflective of demonstrated rehabilitation over a period of delay between charging and the matter now being finalised.

12The third aspect of it is, of course, your family engagement, your family support, and I did receive a number of character references, and of course I have mentioned Ms Dowling-Smith, your brother, Mr Barkho from Jaybar Asset Management, a former employer, Ms Garcia, from Melbourne Hospitality Group.  I have also received your letter to the court, which I accept is a genuine expression of remorse and willingness to change.

13I received a letter from your mother, Soltan, of course, which I have also taken into account, and I received other materials in relation to medical difficulties that your mother is battling with.  I also received a large number of urin analysis results, which indicate and support the proposition that you have rehabilitated from illicit substance use and abuse, which I accept, on balance, was central to this offending and to your engagement in it.

14Submissions were made on your behalf, which emphasised much of what I have just touched upon; prior good character, subsequent demonstrated rehabilitation and continued good character, the family hardship in relation to your three year old daughter and, understandably, the reliance upon you in the family setting in that regard, and the efforts you have made over the past two and a half years to be supportive in that role.

15Submissions were made, of course, in relation to the circumstances of the offending, a single instance, limited role, trafficking simpliciter, and all of that is accepted, of course.  Your plea of guilty is reflective of your acceptance of responsibility.  It has utilitarian value.  I accept you are genuinely remorseful for your involvement in the furtherance of the trade of drug trafficking and of course, submissions were made on the demonstrated rehabilitation during the period of delay.  I received a letter from Harmony House, which sets out the efforts you have made during intensive daily rehabilitation over a period of five months during your engagement with Harmony House.

16The submissions made were that, ultimately, the important factor of general deterrence and denunciation could be met by the imposition of a Community Corrections Order, with work hours.  It was advanced that specific deterrence was not a sentencing factor of high need in your case, and I accept that.  Importantly, the prosecution considered the materials, particularly the medical materials that were filed in respect of your daughter, and the Prosecution sought further instructions and conceded, in this case, that a Community Corrections Order is within range, given the limited offending, limited scope of the offending, and I do not have any difficulty accepting both submissions, that it is appropriate and in range in this case.

17It is important, in cases of drug trafficking, that general deterrence is given careful consideration, as is denunciation.  The ultimate sentence, of course, must be balanced in relation to other sentencing factors in mitigation that are available to you, which I have touched upon.  General deterrence and denunciation are principally given voice, so to speak, through the imposition of punishment, and so I have turned my mind as to whether a Community Corrections Order with work hours is sufficient punishment that will, not for the sake of punishment itself, but give effect to those principles of general deterrence and denunciation, and I am satisfied that it can be.

18So I am sentencing you as follows, Mr Erdogan. 

19In respect of the two charges on the Indictment, you are sentenced to a Community Corrections Order of two and a half years' duration, with conviction.  You are to perform 200 hours of unpaid community work, and during the operation of that Corrections Order, you are to be subject to supervision and you are to be subject to mental health treatment and rehabilitation as directed.  I should mention also, I have had regard to the psychological report of
Mr Armstrong.  I omitted to make reference to that, but that has provided useful context and information in respect of your case.

20That Corrections Order, I did consider and sought advice from Corrections as to whether a drug treatment condition was necessary, as part of that order.  I am accepting the expertise of Corrections in their recommendation that, given where you have got to and the rehabilitative steps you have undertaken yourself, that that will not be necessary, but of course you are subject to supervision, and if at some point in time during the operation of the order, it becomes apparent to Corrections, or better still from your own initiative you raise any concerns, they can always direct you to rehabilitative services. 

21Were it not for your pleas of guilty, I would have sentenced you to a period of 18 months' gaol.  Now, do you consent to the order, Mr Erdogan?

22OFFENDER:  Yes.

23HIS HONOUR:  Yes, all right.  Well, that order will be prepared.  I will also make the orders for disposal in relation to the drugs and the money.  Is the money - the money not on a disposal order, is it, but ‑ ‑ ‑

24MR NIBBS:  Forfeiture.

25HIS HONOUR:  Forfeiture, forfeiture, yes, forfeiture order in respect of the money, disposal order in respect of the drugs.  They will be made and we'll just get that order prepared and then a signature can be provided.  Anything else that I've omitted to mention?

26MR NIBBS:  The only thing, would you make your sentencing comments available to the co-accused?

27HIS HONOUR:  Yes, yes, I always publish them eventually, but given there's co-accused that are yet to - they have - no, they have resolved.  They all resolved, or not, or Tran - Tran's ‑ ‑ ‑

28MR NIBBS:  Two haven't.  Two haven't.

29HIS HONOUR:  Come - yes.  Well, yes, look as soon as the transcript's back, I mean, you might have noticed, I ex-temped it, so - but as soon as the transcript's back, I'll revise it and we'll make it available.

30MR NIBBS:  Thank you, Your Honour.

31HIS HONOUR:  All right, I've signed that, we'll give Dr Gumbleton a look and then Mr Erdogan can sign it.  All right, well, we'll get copies of that and good luck, Mr Erdogan, I don't expect I'll hear anything further in regard to you.

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