Director of Public Prosecutions v Erkaya
[2017] VCC 1341
•11 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01953
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEMIH ERKAYA |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 September 2017 | |
CASE MAY BE CITED AS: | DPP v Erkaya | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1341 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Plummer | |
| For the Accused | Mr W. Barker |
HER HONOUR:
1
Semih Erkaya, you have pleaded guilty to one charge of armed robbery,
(Charge 1); one charge of being a prohibited person in possession of a firearm, (Charge 2); and two charges of possession of a drug of dependence
(Charges 3 and 4). You have also pleaded guilty to uplifted Summary Charge 5, of possession of cartridge ammunition; uplifted Summary Charge 8, possession of a prohibited weapon; and uplifted Summary Charge 10, committing an indictable offence on bail.
2 The maximum penalty for armed robbery is 25 years’ imprisonment. The maximum penalty for being a prohibited person possessing a firearm is ten years’ imprisonment. The maximum penalty for possessing a drug of dependence, being methylamphetamine, is five years’ imprisonment. The maximum penalty for possessing a drug of dependence, being cannabis in a small quantity, is five penalty units. The maximum penalty for possession of cartridge ammunition is 40 penalty units. The maximum penalty for possessing a prohibited weapon is two years’ imprisonment. The maximum penalty for committing an indictable offence whilst on bail is three months’ imprisonment.
3 The prosecutor sought orders for the forfeiture of certain items and for the disposal of certain items. The making of those orders was not opposed.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea, (Exhibit A). The circumstances in brief are as follows. On Friday, 15 January 2016, at about 10 pm, you and your then partner, Bethany Munro, went to a property in Reservoir. The occupant of that residence and a friend were watching television in the garage. At around 10 pm, your partner walked into the garage. She then left and a few minutes later returned, followed by you. You were holding a sawn-off shotgun. You approached the two men and pointed the firearm at them. Ms Munro said she had had her daughter taken from her and this was nothing personal. Ms Munro later told police she had known the two complainants for a number of years and had been buying drugs from them.
5 You told the two complainants to sit down and not to move. Ms Munro told them that you and she wanted cannabis and money and demanded they hand over their wallets. You said you wanted money. One of the complainants handed over cannabis and about $800 cash from his wallet. He placed them into a bag, which Ms Munro was holding open, (Charge 1, armed robbery).
6 Ms Munro left the garage. You remained in the garage, holding the firearm towards the two complainants and then left. You drove away. One of the complainants saw you enter a vehicle and contacted 000.
7 Police attended where you and Ms Munro were living. Various identification processes were followed. You and Ms Munro were arrested on 20 January 2016.
8 A search warrant was then executed at the premises occupied by you and Ms Munro. The police located and seized:
(i) A sawn-off double-barrel shotgun, (Charge 2 – prohibited person possessing a firearm);
(ii) Three shotgun cartridges, (Summary Charge 5 – possess cartridge ammunition);
(iii) Two zip-lock bags containing methylamphetamine to a total of 19.3 grams, (Charge 3 – possess methylamphetamine);
(iv) A blue box containing cannabis and a plastic bag containing cannabis to a total of 25.1 grams, (Charge 4 – possess cannabis) and
(v) A pair of gold coloured knuckle-dusters, (Summary Charge 8 – possess prohibited weapon).
9 You were on bail at the time of the offending for other offences, (Summary Charge 10 – commit indictable offence on bail).
10 You pleaded guilty at a further directions hearing on 10 April 2017.
11 In sentencing you, I have taken into account your personal circumstances. You are now 28 years old. You grew up in the Melbourne area in a close family. You have a strong relationship with your parents, who were both in court to support you. Your parents are from a Turkish background and you and your siblings attended Turkish school on Saturdays. On Sundays you went to the mosque for further classes in respect to the Koran.
12 You were diagnosed with attention-deficit disorder at school. Your mother gave evidence on your behalf and said that you had done much better at school whilst medicated, but once you turned 18, the medication was not available to you.
13 At about the age of 17, you experimented with methamphetamine and by the time you were 20, you were using daily. You have used methamphetamine regularly for about eight years.
14 You wanted to be a plumber and got a diploma after leaving school. After leaving trade school, you obtained employment as a factory hand. You worked in that role for nine months, but have not had any employment since. You have a large frame, but have difficulty doing any work involving lifting, because you injured your back whilst a child.
15
Your mother said that you did well on the Bridge Program, which was part of
a community correction order that you were serving at the time of this offending. Your mother says that in custody, you have been working and she is of the view that you are going to improve your behaviour once you have completed your current sentence.
16
You have admitted a significant prior criminal history, which commenced in 2007. Your offending principally related to motor vehicle offences and dishonesty offences. You have had a number of prior findings of guilt in respect to theft of motor vehicles. You also have a relatively small number of
drug offence convictions. In 2009, you were sentenced to a term of imprisonment of 30 months, with
a non-parole period of 12 months on a charge of arson. Your counsel said you were one of a group who set fire to a school. In March 2015, you were convicted and placed on a 12 month community correction order in respect of offences, including prohibited person possessing a firearm and possession of cartridge ammunition without a licence or permit. In September 2015, you were convicted and placed on a 12 month community correction order on charges which included unlawful assault and contravening a family violence intervention order.
17
There is one relevant subsequent matter. On 21 March 2016, you were sentenced to six months’ imprisonment for offending involving assault on
a police officer which occurred on 27 June 2015.
18 Your counsel said that you had complied with the drug and alcohol treatment conditions of the community correction order which was imposed in March 2015 and had done well, but when you re-offended, you thought you were going to go to gaol again, so you resumed drug use. You still continued with other aspects of your community correction order. You completed 150 work hours and the Bridge Program. You were wait-listed for other programs.
19 Your counsel said you were using drugs and had been drinking alcohol on the day that you committed the armed robbery. Your counsel submitted that the offending was unsophisticated and that your completion of aspects of the community correction order and your behaviour in custody, indicated that you had prospects of rehabilitation.
20 Your counsel submitted that the offending was unsophisticated and that your completion of aspects of the community corrections order and your behaviour in custody, indicated that you had prospects of rehabilitation.
21 Your mother is clearly supportive of you and visits you regularly in custody. She says you call every day on the phone. She said that you are really upset about what you did and that you always are upset after you do something wrong. You regret having made bad decisions. Your counsel tendered four sets of negative drug screen results provided in custody (Exhibit 3E).
22 Your counsel submitted that your offending did not involve any planning prior to the day or any surveillance. You knew that Ms Munro was well-known to the victims and made no attempt to conceal her or your identity. Your counsel submitted that this offending occurred in the context of your drug addiction, as well as lack of employment and financial difficulties. Your counsel also referred to a period from September 2010 until December 2014, when you remained offence-free, noting that you were in custody for 17 of those months.
23 Your counsel also relied in mitigation on your plea of guilty, which was made at a relatively early stage in the proceedings. Your counsel submitted that your plea of guilty was a sign of real remorse showing insight into the wrongfulness of your offending.
24
You have been in custody since your arrest but six months of that time cannot be declared as pre-sentence detention as it was serving the other sentence to which I have referred. You have spent 416 days in custody by way of
pre-sentence detention.
25
Your counsel submitted that an appropriate sentence would be a sentence of up to a further 12 months’ imprisonment, followed by
a community correction order. Your counsel accepted that specific deterrence and general deterrence would be relevant sentencing considerations. Your counsel submitted that the period of time for which you had been in custody was likely to have already specific deterrence. You counsel conceded that you were in a different situation from Ms Munro but submitted that parity must be
a matter which should be considered.
26 The prosecutor submitted that the appropriate sentence would be an immediate term of imprisonment without a community correction order
27 Semih Erkaya, the offending in which you engaged was serious. The maximum penalty for armed robbery of 25 years’ imprisonment demonstrates the seriousness with which Parliament, on behalf of the community, takes this type of offence. You were prepared to threaten the complainants with a sawn-off shotgun in order to obtain money and drugs. This must have been an extremely frightening experience for the complainants.
28 You were not supposed to have a firearm and have a previous firearms conviction and have committed three firearms offences. You were clearly still using and in possession of drugs. Your failure to deal with your drug usage, despite court orders mandating your treatment and rehabilitation, is concerning. It appears that you made some progress on those orders but not sufficient progress to stop you re-offending. It is very concerning that your re-offending involved a firearm.
29
You were on a community correction order at the time of this offending and on bail. The courts have made multiple efforts attempting to provide you with an opportunity to engage in rehabilitation. You have family support and it appears that you can comply with program conditions for a period of time but then relapse into re-offending. It appears that you have some insight into your own behaviour but are unable to control your behaviour.
I consider that your prospects of rehabilitation are guarded at best and that community protection must receive some emphasis in sentencing you.
30
A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence, specific deterrence and community protection. I accept your counsel’s argument that specific deterrence may have been achieved to a degree by the time in custody that had already been served. I consider that, given the seriousness of your offending and your history of non-compliance, the only appropriate sentence is
a sentence of imprisonment with a non-parole period. A sentence of imprisonment with a community correction order would not adequately meet the relevant sentencing objectives in your circumstances.
31 I have taken into account as a matter of totality the six months spent on the assault police charge. I have also considered the issue of parity but your role in this offending and prior criminal history, together with absence of other mitigating factors relevant to Ms Munro, put you into an entirely different situation in respect to sentencing.
32 Could you please stand up, Mr Erkaya.
33 You are convicted on each of the charges and sentenced as follows:
34 Charge 1, armed robbery – 32 months’ imprisonment.
35 Charge 2, being a prohibited person in possession of a firearm – 12 months’ imprisonment.
36 Charge 3, possession of methylamphetamine – two months’ imprisonment.
37 Charge 4, possession of a drug of dependence, being cannabis – fined $300.
38 Summary Charge 5, possession of cartridge ammunition – fined $400.
39 Summary Charge 8, possession of a prohibited weapon – fined $400.
40 Summary Charge 10, committing an indictable offence while on bail – one months’ imprisonment.
41 The sentences are to be served concurrently. The total effective sentence is two years' and eight months’ imprisonment, or 32 months' imprisonment.
42 I declare that you have served 416 days of this sentence by way of pre‑sentence detention to be deducted administratively.
43 I fix 18 months as the period you are required to serve before being eligible for release on parole.
44 But for you plea of guilty, I would have sentenced you to a term of imprisonment of 42 months, with a non-parole period of 28 months.
45 I have made orders for forfeiture and disposal.
- - -
0
0