Director of Public Prosecutions v Ersoy
[2018] VCC 1682
•12 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR 17-01542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
BILAL ERSOY
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2018 | |
DATE OF SENTENCE: | 12 October 2018 | |
CASE MAY BE CITED AS: | DPP v Ersoy | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1682 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Burglary – Commercial burglary – Youthful offender – Multiple offences – Serious example of offence – Relevant prior history – Custodial Sentence – Non-Parole Period.
Sentence:Three years’ and three months’ imprisonment with a non-parole period of two years’ and three months’.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos (for plea) Ms A. Harrold (for sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Bloemen | Emma Turnbull Lawyers |
HIS HONOUR:
Bilal Ersoy, on Indictment No.C1711269 you have pleaded guilty to four charges of burglary and four charges of theft associated with each of those burglaries, and a charge of theft of a motor vehicle. You also pleaded guilty to relevant summary offences that were uplifted in relation to that indictment of fraudulently altering an identifying number on a motor vehicle, driving whilst disqualified and going equipped to steal.
On Indictment No.C1610904A you have pleaded guilty to two charges of burglary, two charges of theft associated with those burglaries, a charge of theft of a motor car, and a charge of trafficking a drug of dependence. You have also pleaded guilty to a relevant summary offence of driving whilst disqualified.
The maximum penalty for each of the offences of burglary and theft is 10 years’ imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.
The maximum penalty for driving whilst disqualified is 240 penalty units or two years' imprisonment as this is a subsequent offence for you.
The maximum penalty for dealing with property suspected to be the proceeds of crime is two years' imprisonment.
The maximum penalty for going equipped to steal is two years' imprisonment.
The maximum penalty for fraudulently altering number plates is 60 penalty units or imprisonment for six months.
You have admitted the matters shown on your criminal records.
Tendered as Exhibits A and D and read aloud in court were the summary of prosecution openings on your plea. The facts set out in Exhibit A are accepted by you through your counsel in relation to Indictment No.C1610904A and form part of these reasons for sentence. The facts set out in Exhibit D are accepted by you through your counsel in relation to Indictment No.C1711269.
In summary, the facts are as follows:
Indictment C1711269: Burglaries, Thefts and other matters 22 March 2016-10 May 2016
Burglaries on 22 March
Michael Hill Jewellers, 118 Elizabeth St Melbourne
On Tuesday 22 March 2016 at 2:32 am, you and two co-offenders attended the Michael Hill Jewellers store at 118 Elizabeth Street, Melbourne in a stolen Mitsubishi Outlander. The three of you entered the premises by smashing the front glass door. The three of you then used a small sledgehammer and jemmy bars to smash the glass display cabinets. You stole a large quantity of jewellery with a value of approximately $100,000.
Angus and Coote and Michael Hill Jewellery shops, Doncaster Shopping Centre
The three of you then drove the stolen Outlander to the Doncaster Shopping Centre at 619 Doncaster Road, Doncaster. You entered the shopping centre together via the Australia Post entrance by forcing open the glass sliding doors.
Two of your group then went to the Angus and Coote jewellery store and smashed the glass cabinets, stealing a large quantity of jewellery valued at $78,000.
One of your group went to the Michael Hill store forcing entry via the security shutter. This offender then used a small sledgehammer and jemmy bar to smash the glass display cabinets, stealing a large quantity of jewellery with a value of $65,000.
After your getaway, the stolen Outlander was abandoned and set on fire.
Burglary on 10 May 2016; TSG Tobacco, Thrift Park Shopping Centre
On 10 May 2016, you were one of four co-offenders who attended the Thrift Park Shopping Centre, Nepean Highway Mentone at about 3:10 am.
Three of your number forced entry into the shopping centre by smashing a hole in the glass at the entrance. One of your number reached in and pressed the exit button, opening the glass sliding doors.
You ran straight to the TSG Tobacco shop and forced the front security shutter. You stole a large number of cigarettes valued at approximately $56,805. You also stole $1200 in cash from the till. Damage to the store is approximately $16,732. A compensation order in the sum of $40,044 is sought, being the difference between the total loss and cost of repair and an insurance payout.
Prior to the burglary you had been captured on CCTV footage at McDonald's driving a Ford Focus sedan. At the time you were not the holder of a licence as it had been cancelled on 20 April 2016 and you were disqualified from driving a motor vehicle.
The registration plates on the Ford Focus had been altered by a piece of black tape which covered the centre of the last numeral ‘8’ making it appear to be a ‘0’. You were seen to remove a large sledgehammer from the boot of your car and place it in the boot of a co-offender's car (which is related summary Charge 12: going equipped to steal or cheat).
It is noteworthy that on 20 April 2016 you appealed a four-month gaol sentence received at Broadmeadows Magistrates' Court on 18 February 2016 to this court. The appeal was allowed and you were placed on a 12-month community corrections order. The offences you were sentenced for included driving whilst disqualified, reckless conduct endangering serious injury and committing an indictable offence whilst on bail.
It is of great concern that you committed the offences on 22 March 2016 whilst having the four-month gaol term hanging over your head pending appeal, and that you also went on to commit the offences on 10 May whilst subject to the community corrections order.
Police arrested you along with co-offenders at Crown Metropol in the early hours of 11 May. Your Ford Focus was seized and it contained a number of items suspected of being proceeds of crime. You were charged with this offence and released.
You were undeterred and went on to commit further serious burglaries with co-offenders Taleb, Omar, El-Sayah and El-Sayed.
Indictment C161090A, Burglaries 1 July and 6 July 2016
Burglary and Theft 1 July 2016 at Airport West
On 1 July 2016, at around 3:30 am, in company with co-accused Ghazi Omar, Ibrahim El-Sayah, Badr Taleb and Aladin El-Sayed you attended at Westfield Shopping Centre, Airport West. You all arrived at the shopping centre in a stolen BMW SUV. You pulled up outside the main entrance of the plaza. Four of your group got out of the vehicle and a Makita brand angle grinder was removed by one of you. All of you were wearing dark clothing and head coverings. A jemmy bar was used to force open the glass sliding doors to enter the shopping plaza.
A Tobacco Station General store was located approximately 700 metres from the front entrance. The angle grinder was used on the lock on the metal door of the store to gain entry. Inside the store a jemmy bar was used to force open the locked cigarette cabinets located behind the register.
You had with you a doona cover. The cigarettes and tobacco products in the cabinets were emptied into the doona cover and carried from the store to the BMW.
The BMW, and whoever was driving the BMW, remained outside the store driving around the carpark whilst four of your group were inside.
Two of your group returned to the Tobacco Station General store a second time with a shopping trolley which was filled up with more cigarette packets. Eventually you all returned to the vehicle and made your escape.
Police were alerted and approached the plaza. You were observed to be leaving in the BMW at high speed and evaded police.
The prosecution have not alleged any value in relation to this offending. It is apparent however from telephone intercepts following the burglary that you each stood to gain in the vicinity of $3,000 as a result of your crimes.
Burglary and Theft 6 July at Rosebud
Turning to the burglary and theft on 6 July at Rosebud. On 5 July 2016 at about 4 pm, your co-offenders El-Sayah and Omar attended the Rosebud Plaza Shopping Centre at Rosebud. They were there to conduct a reconnaissance of the layout of the plaza and the location of the telephone shops and tobacconist store with a view to committing burglaries on those shops later that night.
On the same day at about 6 pm, you, together with another unknown male attended a Bunnings store and purchased a Trojan wrecking bar.
You and the same male then attended a Kmart store where you purchased five doona covers. The doona covers were to be used to carry items stolen during the burglary later that night.
Telephone intercepts reveal that Omar called you at about 2:30 pm on the afternoon of 5 July telling you that you needed to organise doonas and gloves.
At 3:04 pm, Omar called you and asked you to organise a ‘pole thing.’ He told you that he was ‘going for “big fish” tonight’.
At around 5:24 pm you called Omar and asked him to Snapchat you about what he wanted. He said he wanted five 'Ds', the ‘C’ and the ‘G’. These references were code for obtaining five doona covers, a crowbar and gloves. You told him that you already had the gloves. At 6:33 pm Omar called you and told you that he had everything and that he was across from Kmart at the Hungry Jack's. Early the following morning at approximately 3:30 am on 6 July 2016, you attended at the Rosebud Plaza together with El Sayah, Omar and two unknown offenders to commit burglary and thefts.
You arrived in a silver BMW SUV wagon. The driver remained in the car throughout the incident. A jemmy bar was used to smash the glass front entry of the shopping Plaza near the green emergency exit button, which allowed one of your group to reach through and activate the exit button. At the same time another offender used a Makita demolition saw or grinder to force the lock on the front door. I have viewed the footage of this incident and it reveals the extent of the effort and damage caused at the point of entry, in particular the use of a sizeable demolition saw to cut the lock sending sparks flying.
Once inside the plaza, the first store to be breached was the Free Choice Tobacconist. The security roller door to the store was kicked in by a number of you, and cigarettes and tobacco products from the cabinets were removed and placed inside a doona cover. Your group then went to the Telstra store, again kicking in the roller security door. Once inside the store, your group was unable to gain access to the storeroom and no property was stolen.
Your group then went to the Optus store and again kicked in and pushed in the security door causing it to dislodge, allowing entry. Once inside the store, no property was stolen as all the phones and other equipment were dummy phones used only for display purposes. Each of you were wearing dark clothing and balaclavas. Your group was in the shopping centre for 15 to 20 minutes before emerging, dragging a big black-and-white bag full of items to the BMW and its driver who was waiting to collect you. You departed the scene at speed.
You were arrested on 25 August 2016. A stolen VW Golf was located at the address where you were arrested. You had a key to the car in your possession; that is the theft to the motor car charge. You also had in your possession 11.6 grams of MDMA. The trafficable quantity for MDMA is 3 grams.
Personal Circumstances
Mr Bloemen of counsel appeared on your behalf. An outline of submissions was tendered being Exhibit 4A. In an able and thorough plea, Mr Bloemen told me of your troubled childhood. I was told that between the ages of 12 and 17 you were in and out of the family home and that you were subjected to physical abuse when you were in the home. At school you were bullied. Despite these events you had sufficient drive to embark on a plumbing apprenticeship when you were 17 years old, and you had also engaged in sport within the community playing Australian Rules football at a reasonable level.
After starting your apprenticeship you also started attending nightclubs and I was told that through those activities you were introduced to and developed a cocaine addiction.
You were born on 6 May 1995 and are now 23 years of age. During the offending period, you were 21 years of age. Your mother, Haisa Ersoy, has occupied herself with home duties. You have three siblings, Abdullah Ersoy, 20 years old who is I am told studying to be a pilot, Carne Ersoy, 16 years old, who is at school still, and Aaron Ersoy, 7-year-old, also still at school.
Your parents separated at a young age. I was told that you struggled with depression through your teenage years however there was no specific diagnosis. I was also told that your mother is battling some brain trauma and this is placing considerable pressure on you whilst in custody as you are concerned to be outside of custody prior to the prospect of her passing.
I was told about the relationship you have been engaged in with a Claudia and was provided the reference from Claudia Zabia. She was also present in court. That reference, together with the letter that you authored that was tendered on your behalf by Mr Bloemen, demonstrate another side to your character other than that which is demonstrated by your criminal record including your subsequent matters. Clearly you have many positive aspects to your personality and there is a prospect that in the future if you can harness those positive aspects, deal with issues of addiction and engage in gainful employment again, you will be able to avoid further offending.
You left school in 2013 having been educated at Glenroy West Primary School and then Box Forest College, completing Year 10 and doing VCAL at William Angliss Institute. You did a plumbing Certificate II in 2015 at RMIT. You also engaged in a security training certificate at a private college in 2015. You had been employed with Melbourne Trust Company, a carpentry company, and I was told you were about to start an apprenticeship with that company prior to being remanded.
Your cocaine use was at a high level up to and including the time of your offending. I was told that you were probably using around an ounce per week which was a significant amount. I was told that this cost around $6,000 per week. Needless to say, your offending was clearly driven to a significant extent by your desire to fund that habit.
Pre-sentence detention and subsequent offending
Of significance in your plea was the length of time that you have been in custody since the commission of these offences up to the present. You have served sentences for subsequent matters and sentences for breaching a Community Corrections Order between the date of the commission of these offences and your date of sentence. That has resulted in you having a period available to you as pre-sentence declaration for these matters in the vicinity of 300 days although you have served over 600 days in custody.
In his plea on your behalf, Mr Bloeman placed emphasis on that history, urging me to take the time you have spent in custody that is not available to you as pre-sentence detention into account and I will do so.
In brief terms, you were arrested on these matters and remanded in custody on 25 August 2016. On 4 October 2016, you received a sentence of 14 days' imprisonment for driving matters and 14 days of pre-sentence detention was declared. On 25 May 2017, you received a sentence of four months' imprisonment for community corrections order contravention and resentence. On 8 June 2017, you were sentenced to three months' imprisonment in Ringwood Magistrates' Court. You were bailed on 2 October 2017 and arrested and remanded again on 1 March 2018. On 4 July 2018, you were sentenced for matters in the Melbourne Magistrates' Court to six months' imprisonment and 125 days of pre-sentence detention was declared.
That, in very brief terms sets out some of the periods that you have been in custody since August 2016 for which there is no pre-sentence detention available on these matters. I was provided more detail on the plea.
In essence, Mr Bloemen urged me to pay careful regard to the principle of totality and I do so. He also relied upon a bail report which demonstrated some compliance by you during the period whilst you were on bail, however those matters must also be viewed in light of the fact that you reoffended and entered custody again in March this year and are serving a sentence.
The history of your various arrests and charge dates in this matter together with your criminal record and what I have been told of your subsequent offending does paint a troubling picture. It impacts upon your prospects of rehabilitation and how I regard them. As I have already noted, it is particularly troubling that your offending was not limited to the March spree of offending which occurred in the shadow of the gaol sentence that was ultimately successfully appealed from the Broadmeadows Magistrates' Court but had continued into May after you had received a Community Corrections Order in this court in April, and then despite being arrested on 11 May continued again into July. The sentences I have imposed in relation to the July matters reflect those facts.
Youth
Youth was emphasised by Mr Bloemen quite properly and you can call upon your relative youth in mitigation; your youth at the time of the offending, which is now more than 2 years ago, as well as your relative youth at the time of sentence.
Your youth has relevance as a sentencing consideration in this case in a number of ways. Firstly, young or relatively youthful offenders – such as you were – are often immature and are prone to ill-considered decisions. Young or youthful offenders may lack the degree of insight, judgement and self-control that is possessed by an adult. They may not appreciate the nature, seriousness and consequences of their criminal conduct to the same degree.
Importantly, courts recognize the potential for youthful offenders to be redeemed and rehabilitated. Rehabilitation of youthful offenders is in the community’s interest.
It is also recognized that incarceration of youthful offenders will more likely impair than improve the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench criminal behaviour and exacerbate anti-social tendencies.
Sadly, in your case you have been in custody effectively since 25 August 2016 save for a period between October 2017 and March 2018. As I noted, you have now been in custody for over 600 days since your apprehension on these matters.
Of that time, some 323 days are not available to you as pre-sentence detention as those days represent the other sentences you have served.
I take into account the totality of your period of imprisonment and the totality of your offending in arriving at sentence. To be absolutely clear, I have taken into account the time you have spent in custody that is not declared as pre-sentence detention, and that fact is reflected in the sentences I will impose.
Given your relative youth and the matters raised on your plea, I have also taken the total time you have spent in custody into account when I have considered imposing a sentence that would not be crushing to you in the sense that it is understood in the authorities raised on the plea.
The sentences imposed reflect the considerable weight I have given to the mitigatory effect of youth combined with my consideration of the length of time you have been in custody since 2016 and will be into the future.
Plea of guilty
In the context of your co-accused on Indictment C1610904A, your pleas come at an earlier stage. Your matters resolved at committal stage. Other considerations, namely the other matters for which you have been sentenced already, resulted in your plea not being able to be heard at an earlier time.
I accept that there is a significant utilitarian benefit in your pleas and I also accept your pleas are indicative of remorse and contrition. I take this into account when sentencing you.
Objective Gravity of Offending
Turning to the objective gravity of the offending. These offences fall into the category of commercial burglaries. Primarily the motivation was financial gain although in your case of course that cannot be separated from the fact that you were indulging in a high-level cocaine addiction at the time.
The offending is extremely serious. I viewed some CCTV footage in relation to the events the subject of Indictment C1610904A (Exhibits B and C) which were tendered by the prosecution and provide a vivid picture of your offending: the degree of planning, the break-in, the ‘heist’ and the getaway.
On the face of it, your activity was organised criminal activity at a disturbing level for young men such as yourself.
The objective gravity of the offending, as expressed in the prosecution opening and as depicted on the CCTV footage, calls for punishment. It calls for sentences that will satisfy the need for general deterrence. It calls for sentences that will express appropriate denunciation.
Competing with the principles of youth and your prospects such as they are, are general deterrence, appropriate denunciation and just punishment. I have had to consider, bearing in mind the objective gravity of the offences, the totality of the time you have spent in custody and the totality of your offending including those offences what sentence is adequate to satisfy each of those factors. Implicit in that exercise is the application of the principle of parsimony.
Parity
I have considered issues of parity.
In relation to Indictment C1711269 I was told of two young offenders who were your co-offenders in relation to the matters on 10 May 2016. In fact one of them was only dealt with for dealing with property suspected of being proceeds of crime and received a youth supervision order without conviction. The other received a youth supervision order with conviction. Both were dealt with in the Children’s Court. Given these factors and the differences in the breadth of your offending, your age and your criminal record, disparity is to be expected and I was not urged otherwise.
In relation to Indictment C1610904A, your co-accused were each in a distinctly different position from yourself. Most obviously they had not engaged in the offending you did across March to May 2016. Other differences arise from the circumstances in which you were placed on a CCO on 20 April 2016, the circumstances in which you were arrested and charged on 11 May in respect of an aspect of the 10 May offences, and the rehabilitation each of your co-accused was able to demonstrate whilst on bail. There are also differences between each of the co-accused including the number of burglaries they faced. In their cases also in particular given the compelling evidence of rehabilitation whilst on bail, sentences that were quite lenient were imposed in order to reflect those particular matters.
In respect of each of your co-accused on indictment C1610904A, I had a confidence regarding their prospects of rehabilitation that I do not have in your case.
I find I am guarded as to your prospects of rehabilitation given the length and breadth of your offending and its continuance despite curial intervention in April 2016 and the intervention of law enforcement, and of course your subsequent matters. Bearing all those differences in mind, I have endeavoured to apply the principle of parity with your co-offenders from Indictment C1610904A.
Sentence
I now turn to sentence. If you can stand up please, Mr Ersoy.
On Indictment C1711269, I sentence you as follows.
On Charge 1, burglary at Michael Hill Jewellers Elizabeth Street, 12 months' imprisonment.
On Charge 2, theft of jewellery, 9 months' imprisonment.
On Charge 3, at Angus and Coote Doncaster, 12 months' imprisonment.
On Charge 4, theft from that store, 8 months' imprisonment.
On Charge 5, burglary at Michael Hill Doncaster, 12 months' imprisonment.
On Charge 6, theft from that store, 8 months' imprisonment.
On Charge 7, theft of motor car, 6 months' imprisonment.
On Charge 8, burglary at TSG, 14 months' imprisonment. This will be the base sentence.
On Charge 9, theft, 8 months' imprisonment.
On the related Summary Charge 11, fraudulently altering identifying number, 1 month's imprisonment.
On the related Summary Charge 4, driving whilst disqualified, 2 months' imprisonment. I also disqualify you from holding a licence for 2 years from today's date.
On related Summary Charge 9, deal with property suspected as proceeds of crime, I sentence you to 3 months’ imprisonment.
On the related Summary Charge 12, going equipped to steal, I sentence you to 1 month's imprisonment.
On Indictment C161090A, I sentence you as follows.
On Charge 1, burglary, 14 months' imprisonment. I have imposed a greater sentence on the July burglaries than I have in respect of the March and May burglaries to reflect the fact that you were not deterred by your apprehension on 11 May, and that you continued to offend despite also being on a CCO.
On Charge 2, theft, 6 months' imprisonment.
On Charge 3, burglary, 14 months' imprisonment.
On Charge 4, theft, 6 months' imprisonment.
On Charge 5, theft of a motor car, 6 months' imprisonment.
On Charge 6, trafficking MDMA, 4 months' imprisonment.
On the relevant summary offence of driving whilst disqualified, 3 months' imprisonment and I disqualify you from holding a licence for 2 years from today's date.
Orders for cumulation
I direct that 3 months of the sentence imposed on Charge 1 on Indictment C1711269, 2 months of each of the sentences imposed on Charges 3 and 5 on that indictment, and 1 month of each of the sentences imposed on Charges 2, 4, 6, 7 and 9 on that indictment be served cumulatively upon the sentence imposed on Charge 8 and on each other. I direct that 1 month of the sentence imposed on the relevant summary offence of driving whilst disqualified be served cumulatively on Charge 8 and on other sentences imposed.
I direct that 4 months of each of the sentences imposed on Charges 1 and 3 on indictment C1610904 be served cumulatively upon Charge 8 on indictment C1711269 and on each other. I direct that 1 month on each of the sentences imposed on Charges 5 and 6 on indictment C1610904 be served cumulatively on Charge 8 on Indictment C1711269 and on each other. I direct that 2 months of the sentence imposed on the relevant summary offence Charge 39, driving whilst disqualified, be served cumulatively upon Charge 8 and on other sentences imposed.
For clarity, all other sentences are to be served concurrently.
That makes a total effective sentence of 3 years and 3 months' imprisonment. You must serve 2 years and 3 months before becoming eligible for parole.
Pursuant to s.18 I declare that you have served 308 days - is it 308 days?
MS HARROLD: Yes, Your Honour.
MR BLOEMEN: Yes, Your Honour.
HIS HONOUR: I declare that you have served 308 days of pre-sentence detention in relation to this sentence.
Pursuant to s.6AAA, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 5 years' imprisonment with a non-parole period of 3 years and 6 months.
The other orders I have been asked to make and the disposal order, I make that order. Forfeiture order. There was a compensation order also that I will make that as well.
MS HARROLD: I just had a couple of things, Your Honour, just to raise.
HIS HONOUR: Yes.
MS HARROLD: Your Honour has disqualified Mr Ersoy’s licence on that driving whilst disqualified charge but it is actually a mandatory requirement that a disqualification order be made on the theft of motor vehicle charges.
HIS HONOUR: On Charge 5, theft of a motor car, in addition to the sentence imposed on Charge 5, theft of a motor car on indictment C1610904A, I will disqualify you from holding a licence for two years from today's date and I will make the same order in respect of Charge 7 on indictment C1711269.
HIS HONOUR: Any other matters I need to address?
MS HARROLD: No, Your Honour.
MR BLOEMEN: No, Your Honour.
HIS HONOUR: All right, if there is nothing else, Mr Ersoy can be taken out.
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