Director of Public Prosecutions v Erdogan
[2022] VCC 329
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01486
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIYAR ERDOGAN JOE TANNOUS |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2022 and 11 March 2022 |
DATE OF SENTENCE: | 11 March 2022 |
CASE MAY BE CITED AS: | DPP v Erdogan |
MEDIUM NEUTRAL CITATION: | [2022] VCC 329 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Sentence Indication Hearing – Intentionally causing injury – Affray – Plea – Victim Impact – Mitigation – Youthful offender – Rehabilitation – Community Corrections Order – COVID times
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: DPP v Candaza [2003] VSCA 9; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Worboyes v R [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; 46 VR 308.
Sentence: SIYAR ERDOGAN - 18 months Community Corrections Order.
JOE TANNOUS – 2 years Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Boulton | Office of Public Prosecutions |
For Accused Erdogan | Mr C. Pearson | Greg Thomas Barrister & Solicitor |
For Accused Tannous | Mr P. Bloemen | Emma Turnbull Lawyers |
HIS HONOUR:
1Siyar Erdogan and Joe Tannous, on 8 March 2022 I granted a sentence indication application made for both you men. In essence, each of you submitted that if you pleaded guilty to two charges of intentionally causing injury and one charge of affray, would I impose a non-custodial sentence?
2Under the recently changed provisions of the Criminal Procedure Act 2009 (Vic),[1] I was able to indicate that I would impose a sentence of a particular type, being in each case a community corrections order alone.
[1] s 60.
3The prosecution had submitted that a community corrections order, combined with a period of imprisonment was the appropriate sentence for you,
Mr Erdogan, but for you, Mr Tannous, given that you are older and have a relevant prior conviction, the prosecution submitted a term of imprisonment with a non-parole period fixed was the proper sentence. Giving brief reasons for granting the application I set out some of the facts of the ugly fight you men engaged in on Russell Street on 16 December 2018. I will repeat some of that here. The full facts were contained in the prosecution opening tendered on the plea as amended following the sentence indication hearing.4The opening refers to CCTV footage, which I have watched a number of times. The parties have made helpful submissions as to the violent images shown on the footage. The original opening also was directed to much more serious charges of intentionally causing serious injury with respect to Victim RA in circumstances of gross violence, which required substantial custodial penalties to be imposed if you were found guilty of that offence or pleaded guilty to it.
5These charges have now been sensibly resolved for those that I have mentioned. That is two charges of intentionally causing injury, being intentionally causing injury to the victim, RA, and to the victim, KA, and also one charge of affray.
6What is understood by, 'all', is that in all the circumstances the charges of intentionally cause injury to the victim, RA, is a serious example of that offence, that is the crime of intentionally causing injury. RA did sustain a fracture to his jaw and had adverse impact ongoing as a consequence. I will refer to the injuries that the victim, KA, sustained in due course.
7The circumstances that give rise to the charges occurred now three years and three months ago in December 2018. The world and our city was different at that point. The accused, the victims and the public were out, going to nightclubs and the like, enjoying the pre-Christmas evening in the vibrant CBD of Melbourne.
8The accused's group came upon the victims, RA and KA, on Russell Street. These two young victims were brothers. There were aggressive exchangers which escalated and subsided. The CCTV footage shows as much. However, at one point you, Mr Erdogan, confront the victim, KA, and you size up to each other in boxing stances. You, Mr Tannous, are nearby. A punch is thrown by you, Mr Tannous, at KA. His brother, the victim, RA, was nearby and he was then king hit by another man from more or less behind or to the side and RA went down on the road. You, Mr Tannous, then came to where RA was and punched him to the head and later kicked him while he was down. You too,
Mr Erdogan, came to where RA was down and assaulted him, but I note so too did others including a man called Solu and the man I describe as the king hit man, they were well involved in the attack.9Others, perhaps from the nightclub nearby, intervened to help and disperse the men. The groups were spread across Russell Street. It was an ugly and frightening scene. RA suffered significant injury to his jaw. The fracture was complicated. He was in hospital for two days. His jaw alignment was very difficult to be refixed and he required metal plates. He was required to have soft food and the like for some many weeks.
10KA suffered injuries to his teeth and arm and concussion and could not work for some weeks. As shown in the CCTV footage, the critical events are intense and explosive but short lived. The conduct of both you men was violent and when RA went down it was cowardly. It is offending that must be condemned and a deterrent message must be sent, but as the Court of Appeal said some years ago in DPP v Candaza:
…the seriousness of the offences should not wholly dictate the punishment that is appropriate.[2]
[2][2003] VSCA 91, [15].
11That crime was an armed robbery by four young men in company, which was punished by without conviction, community based orders. As I have noted, it is obvious in the CCTV footage there were in this case, co-accused such as Solu, who was very much involved in terms of verbal and physical aggression. I am told he is seeking diversion in the Magistrates' Court in some months' time for two charges of affray. For what it is worth it seems a merciful outcome in terms of charges and possible penalty. The king hit man is unknown and uncharged.
12Before moving on to other matters concerning your individual personal circumstances, I need to make clear to you that your crimes have had an ongoing, adverse impact on the victims. Victim RA wants his whole victim impact statement read in court and I will just summarise aspects of it. Insightfully he says:
I used to think that Melbourne night life was all about having fun and enjoying yourself with your friends and family. Now I am aware there's more to it. It concerns and upsets me that people in Melbourne are looking to fight on the street for no apparent reason.
13He said he used to enjoy going into the city regularly, socialising with friends but now he is much more anxious.
14It affected his family, as his mother has changed the way that she sees things when the brothers go out and is constantly checking up and anxious about them. She stays awake because she wants to hear them come home safely. This has been a matter referred to by the Court of Appeal about street violence, that is the impact it has on parents anxiously waiting for their young teenagers or early 20’s children to come home safely.
15RA speaks of the injury to his jaw that is consistently irritating and annoying and painful on a daily basis. He has to make adjustments in respect of how he eats, yawning and other aspects of it, in particular, which way he can lie in bed with his head on the pillow. He has had surgery to put metal in his mouth and realigned and then maybe further surgery. He says that although it is now, at the time he wrote his victim impact statement two years since the incident, of course now it is over three, he is still cautious about strangers that he comes across in the public and how he conducts his lifestyle.
16Victim KA spoke briefly about the intense immense anger he felt at the time, and fear. The crime affected his work life and his ability to focus on his studies, and his overall wellbeing. He also said although it is over two years, of course now three, the emotional impact remains quite fresh. Every time he goes to the CBD he is reminded of the incident. He speaks also of the ongoing impact with dental work that has to be done and the costs involved, but as I had indicated, the seriousness of the crime is not the only matter for sentencing, and the proper delivery of individualised sentencing in the circumstances an offender and what the future looks like for them is very important.
17Your counsel, Mr Erdogan, emphasised your youth. You were just 18 at the time. The delay that there was, both as to being charged in the first place through 2018/19 until the additional delay caused by COVID. I emphasise that in this period your good character up until that time was then maintained. All this was indicative of this being an out of character moment of ill-considered madness, which was impacted upon because of the drink that you had had. He emphasised, and I agree, that all the principles set out by the Court of Appeal and the well-known decisions regarding sentencing youthful offenders in Mills v The Queen[3] and Azzopardi v The Queen,[4] come into play. Those principles are well known. My task is to ensure adherence to them in the particular circumstances of this case. The most important point is the benefit that comes to the community if a young offender, in this case a young first offender, is rehabilitated.
[3]R v Mills [1998] 4 VR 235.
[4]Azzopardi v The Queen [2011] VSCA 372.
18It is clear that in the time since these crimes you have been productive, continuing your hard work and also dedication to your very ill younger brother. You have very significant family support and a bright future. The references tendered on the plea are helpful and impressive regarding your prospects of remaining free of crime. I will not read all of them. They have the same themes, taking up what was said by your father. He said upon hearing the news of you being involved in an assault he was completely shocked and confused as to how his son, you, Mr Erdogan, could be involved in such an ugly incident. He sees it as being entirely out of character for you and a one off incident.
19He speaks of, and this is an important development, you have stopped drinking, or kept your drinking now to a complete minimum and you changed your circle of friends. You focus on your work and you recently completed a Diploma of Building and Construction and you are aiming to obtain your builder's licence to further your career. You are important in the business your father runs, a building business, and other work colleagues spoke of your growing maturity and your importance to the business.
20Your father speaks, as does your mother, of how important you are in the care of your younger brother. You take him regularly to his appointments and care for him. To that end the registered nurse, Mr Cosgriff, at the North Western Mental Health, took the time to write that you are the primary carer and supporter for your younger brother, who has been diagnosed with a major mental illness with several other comorbidities and has complex care needs. You have been doing this since 2017 and you have been there through periods of your brother having had inpatient psychiatric hospital admissions and extensive investigations and ongoing community follow-up. You are the one that attends regular reviews or brings him to regular reviews, blood tests and medical investigations. You are the primary point of contact in advocating on behalf of your brother, who has speech and language difficulties and you assist in being and advocate and translator for your parents with their limited English. All these matters are very much to your credit and in many ways speak to your true character, unlike the ugly display of violence on this occasion in December 2018.
21The Community Corrections assessment that I sought with respect to you,
Mr Erdogan, indicates that you are suitable. You were cooperative and displayed insight and remorse, shame and embarrassment at what you had done. You recognised the adverse impact your offending had on the victims as well as on your own family and yourself. You have today, through your counsel, apologised directly to the victims. You expressed real motivation to remain law abiding and compliant to any court order. It was recommended that you participate in programs to deal with your risk of reoffending, albeit that your risk of reoffending was assessed as low. You also expressed a desire to have help with your own mental health. The Community Corrections order also assessed that it would be necessary for you, or would be wise to have you under supervision.22For some reason, probably my own administrative faults, I did not seek and thereby did not get, a recommendation as to unpaid work. It was always my intention to impose a punishment element by having you do unpaid work. That was acknowledged by your counsel this morning and you are able to do that. It will be part of a Corrections order.
23I noted your comments and that of the assessor about your own mental health and the recommendation of the mental health treatment condition. In my view, with your improving mental health and your connections and access to community mental health, it is familiar to you, I mean to say, sadly, it seems to me that if you wish to gain professional assistance that you should do so via the health system and not be mandated to do so via the criminal justice system. In likelihood if you were under a Community Corrections order with a mental health condition with your level of improving mental health, you would simply be directed to get a mental health plan from your GP and a Medicare funded referral for you to do psychological treatment and counselling. You should do that of your own accord.
24Overall the Community Corrections assessment, as I expected, was favourable and gives me confidence you will comply, reform and not be back before the courts again. You have learnt a hard lesson but, importantly, you have learnt that lesson. You display what the community wants to see if courts are asked to give a young first offender a second chance. That is you display real remorse and solid signs of commitment to reform over the time that has passed since your offending. I will return to the precise sentencing order after I deal with
Mr Tannous' personal matters.25Mr Tannous, you are older but was still in your 20’s at the time and still are. You have a prior conviction which was when you were much younger. It occurred in 2012 and a sentence imposed of a Community Corrections order in 2013 but, concerningly, it was for violence. I have since the sentencing indication hearing read a summary or a LEAP entry of the event that occurred on 22 November 2012 involving punching and kicking a taxi driver following a dispute what change you should have got or got after a fare was paid. You were 19 at the time. You were put on 12 month Community Corrections order with unpaid work and an anger management. You completed that order without any difficulty.
26But this elevates you to a different level, I think, to that of your co-accused,
Mr Erdogan, but you too are gainfully employed and have solid family support and you too have changed your ways by giving up drinking entirely. All these are to your credit. A reference is tendered on your plea from your father to indicate that you sincerely regret having committed the act. He and all the family were taken aback that you were involved in this and they do not see you as a person to inflict pain or harm upon anyone. He says that how you have seen the footage, and this gives you much shame and grief and extreme disappointment in your own behaviour. He describes you as a hard worker and someone who is very valuable to the family business that he runs, and it is evidence to him that you have made positive changes in your lifestyle over the years that have passed and have now grown into a man that your father is proud of, and he points out you have given up alcohol now for many years. You provide significant support to the family and your younger brother looks up to you and there is a close bond. He says that you are the sort of person who can learn from your mistakes and you have on this occasion.27A family friend or, I am sorry, the wife of your brother or brother-in-law - yes, sorry, Ms Charlotte Tabul, is someone that is close to the family and you. She sees you as her brother-in-law. I apologise for mangling all that, but what it means is that she does know you and she is happy to write this character reference. She indicates that you are a decent, hardworking, trustworthy person and what you displayed on that night was out of character. It is also pointed out that you are well respected in your community, having ties with the church community, which you are very much involved in. You have expressed repeatedly a sense of remorse at this mistake and what happened to the victims.
28You come from a large and supportive family, seven brothers and a sister, many nieces and nephews, and this is your focus, being with your family and she says that you will become law abiding. As mentioned, with respect to Mr Erdogan, the community considers or expects genuine remorse and practical rehabilitative steps to have been taken if for an accused a sentence is a merciful one or an accused is to be dealt with mercifully by the courts, and that is the case here. Though this will not be strictly your second chance but, Mr Tannous, you are on a knife-edge and you must not resort to violence or any offending into the future. There will be little option for a court if that occurs. In particular, if you breach this order that I am about to impose, there is an almost living certainty that you will go to gaol.
29For both of you men there are important policy type considerations that warrant significant mitigation. The most prominent is what the Court of Appeal discussed in the important COVID case of Worboyes,[5] it was accurately stated that due to the pandemic and the consequential suspension of jury trials, there is a very concerning backlog of pending trials in the County Court. The Court of Appeal gave guidance to sentencing judges to give greater discounts to accused who plead guilty in these circumstances. The benefit to an accused must be palpable to reflect the very significant utilitarian benefit to the criminal justice system, which was described as being beleaguered and in crisis. The palpable benefit is not limited to shorter terms of imprisonment but also to proper consideration of alternatives to imprisonment, as is the case here.
[5]Worboyes v R [2021] VSCA 169.
30Further, as I have said in this case, there is significant delay before the matter got to the courts and that is mitigatory as well as each of you has been without further offending since and have reformed.
31Both counsel emphasise the principles articulated in the Court of Appeal decision of Boulton.[6] Those are principles that are very much to the fore in a cased such as this. As was astutely said in Boulton, the changed sentencing landscape brought about by amendments to the Sentencing Act 1991 allows for simultaneous punishment and rehabilitation with a community corrections order.[7]
[6]Boulton v The Queen [2014] VSCA 342; 46 VR 308.
[7] Ibid, [2] and [113].
32It was said that a community corrections order can be appropriate for even serious crimes which would have warranted mid-range terms of imprisonment in past days.[8] Community Corrections orders allow for offenders to remain with families in gainful employment, was a point emphasised in Boulton and indeed made in the second reading speech when the Sentencing Act 1991 amendments were brought forth.
[8] Ibid, [57].
33In this case those two matters, being remain with your families and remaining in gainful employment, are very important in your particular cases. The prospects that you will permanently reform are very good, if not excellent, and that of course in the end is in the community's best interest. Gaol is always the punishment of last resort,[9] and now it is harsher with the COVID restrictions that are necessary within the Corrections system. It is or always has been a very blunt instrument but more so now. It can impact on an offender's future, notwithstanding that there were good signs of reform prior to an offender being sentenced to gaol. As I have said before, no one is ever quite the same after going to gaol.
[9] Ibid, [111].
34The prosecution were of course mindful of all of that. They contended that some gaol was required for you, Mr Erdogan, and more for you, Mr Tannous, due to the gravity of these violent crimes committed in public. As I have mentioned, there were other offenders and one, it is understood, will be dealt with for lesser charges in the Magistrates' Court. There is no direct point of parity but in a common sense way there were more who were involved and, in my view, one in particular was likely the main offender.
35What cannot be ignored, however, is that this explosion of violence between the young men in a public street in which you were the offenders, that explosion of violence is concerning. These crimes diminish individuals, parents and the community's sense of safety, as was insightfully pointed out by the victim, RA, in his victim impact statement. As I said in the sentence indication hearing, I gave anxious consideration to what outcome there should be in this case. I had the benefit of written materials supplied in advance as well as concise oral submissions. I was then, and remain, persuaded that all sentencing purposes can be met by a type of sentence that does not involve imprisonment. Thus by operation of, or pursuant to the provisions of the Sentencing Act 1991, I could not impose a gaol sentence if all sentencing purposes can be satisfied by a sentence less than gaol.
36As I said, I can impose sentences that denounce and deter and facilitate rehabilitation of you young men already on that pathway by imposing an onerous Community Corrections order. These orders are onerous. They are not soft options. There must be a differentiation between each of you due to you, Mr Tannous, having a prior conviction for violence, which was punished by a Corrections order and an anger management type course, and also by reason of you being older than Mr Erdogan. Specific deterrence looms larger for you.
37Dealing first with you, Mr Erdogan, with conviction for these three crimes there will be one Community Corrections order. It will, as I said with conviction, go for 18 months. You will be required to do unpaid work for 180 hours, also be required to participate in programs to reduce the risk of reoffending. All hours that you spend involved in those programs can be counted as unpaid work. You will also be under the supervision of the Community Corrections office. I will outline further conditions that apply to everyone on a Community Corrections order shortly.
38You, Mr Tannous, your Community Corrections order for all three charges is for two years. You must do 210 hours of unpaid work. You too must participate in a program to reduce your risk of reoffending. All the hours you spend on that can be counted for your unpaid work. You also will be under supervision.
39Had you pleaded not guilty to these offences and been found guilty of them or whatever the offences were, could impact upon it, but if it were just these offences then for you, Mr Tannous, I would have imposed a sentence of two years and four months with a non-parole period of 18 months.
40For you, Mr Erdogan, I would have imposed a sentence of two years with a non-parole period of 12 months.
41There are orders sought for compensation. As I understand it, the order can be signed with respect to the victim, RA.
42With respect to the compensation for KA, that is currently under discussions and negotiations, I set a directions hearing on that matter at 9.30 on
31 May 2022. If it is resolved there can be an administrative order made signing off a compensation order. If not, then on that day, 31 May, I will make further appropriate arrangements for there to be a litigation on the matter before me.43Any other orders required?
44MR PEARSON: Not for my part, Your Honour.
45HIS HONOUR: Thank you, all right.
46MR PEARSON: Thank you, Your Honour. I have sent to Your Honour's associate, Mr Erdogan's email address so that that CCO order can be transmitted to him, Your Honour.
47HIS HONOUR: Yes, all right, thank you. My staff have worked out which Corrections officers you have to go to but I have just misplaced it. Just bear with me. I will have to do that job again.
48All right, Mr Erdogan, with respect to the Community Corrections order, if you are in court in the usual way you would get a document, your lawyers would go through with it at the back of the court and you would sign it if you consent to it. Doing it online what occurs is I will just go through those conditions and if you consent to doing the Community Corrections order just say so and I will note that you gave oral consent. And listen into this to know, so I will not repeat everything to you. It will be just the same for this part of it, all right.
49The first matter that I am going to go through is some conditions that apply to everyone who is on a Community Corrections order, and the first matter that I bring to your attention is critical, and that is you must not commit any further offence that you could receive a term of imprisonment, so punishable by imprisonment, whether the magistrate gives you an imprisonment for whatever that offence is, so it is neither here nor there, it is if it is punishable by imprisonment, and if you commit an offence you, within the period of time of 18 months, Mr Erdogan, and you, two years, Mr Tannous, if you commit another offence then you will breach this order and you will come back before me and, as I said, the same mercy will not be forthcoming.
50Almost every offence you can think of is punishable by imprisonment, so do not drive off if you have got no money with not paying for your petrol or take a can of drink or something, they might seem minor matters but they are punishable by imprisonment and you will come back before me.
51Next, you must report to the Office of Corrections, that is at Broadmeadows, within two clear working days. So early next week. Make sure that you telephone them and set this all up.
52The next matter is really about cooperation. So you have got to let them at the Office of Corrections know if you change your address, if you change your job, if you wish to go interstate you have got to get permission to do so. You have got to abide by any lawful directions they give you and all their directions will be lawful, and you have got to accept visits from the Office of Corrections. So they are all about cooperation, straightforward.
53In respect to the conditions that apply to you two gentlemen, they are modelled on the same. It is just that you have to do more, Mr Tannous. So you must do the unpaid community work, Mr Erdogan, for 180 hours. It is not an option. Your lawyers have pointed this out. You have got to give it priority. Just get through it. You are a hardworking man. Just get on with it and do it. It is punishment because you committed crimes that require punishment and denunciation. So just get the work done.
54You have got to be under supervision just to make sure that you are staying on track. That means you have to be in touch with the Office of Corrections as they require. That is not an option either. You have just got to be in touch with them and cooperate with them.
55And you have to do programs that they will direct you that will reduce your risk of reoffending. It would probably be about anger management and the like and they will direct you to those, and if you get through all of that, that will bring an end to it. Do you understand those conditions, Mr Erdogan?
56ACCUSED ERDOGAN: Yes, Your Honour.
57HIS HONOUR: Thank you. Do you consent to doing that Community Corrections order? I will just get you to repeat it, it just cut out.
58ACCUSED ERDOGAN: Sorry, sir. Someone was calling me. Yes, Your Honour, I definitely do consent.
59HIS HONOUR: Thank you, thank you. Mr Tannous, you have done one of these before and successfully got through it. Do you understand all the conditions that apply?
60ACCUSED TANNOUS: Yes, Your Honour.
61HIS HONOUR: Do you consent to doing that Community Corrections order?
62ACCUSED TANNOUS: Yes, Your Honour.
63HIS HONOUR: All right. I will mark that on the orders that will be signed by me shortly. Is there anything else required?
64ACCUSED TANNOUS: No, Your Honour, and I just want to apologise on my behalf as well.
65HIS HONOUR: Yes. I think it comes through, Mr Tannous, but thank you. All right, if there is nothing further, we vacated the trial dates, as I understand it. They are behind us but there it is. If there is nothing further I thank counsel again for their considerable assistance and that of the instructing solicitors.
66MS BOULTON: Thank you, Your Honour.
67MR PEARSON: If Your Honour pleases. Thank you very much.
68ACCUSED ERDOGAN: Thank you very much, Your Honour. I am very thankful for your - for your judgment and I am sure that, you know, you made a very good decision and we will never come back before the courts for something like this again.
69HIS HONOUR: All right, or for anything. Do not offend.
70ACCOUNT ERDOGAN: Nothing.
71HIS HONOUR: All right, thank you, you can all head away.
72MR PEARSON: Thank you.
73MS BOULTON: If Your Honour pleases.
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