Director of Public Prosecutions v Evren
[2022] VCC 895
•14 June 2022
MEL
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-21-01929
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANSEL EVREN |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 10 June 2022 |
| DATE OF SENTENCE: | 14 June 2022 |
| CASE MAY BE CITED AS: | DPP v Evren |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 895 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – use carriage service to harass - numerous family violence offending – attempted aggravated burglary – significant criminal history
Legislation Cited: Criminal Code Act (Cth) s 474; Family Violence Protection Act 2008 s125A, Crimes Act 1958 s321M, s77, Sentencing Act 1991 s18.
Cases Cited:DPP vMeyers (2014) VSCA 314; Pasinis v The Queen [2014] VSCA 97; Worboyes v R [2021] VSCA 169
Sentence:Three years and eight months' imprisonment with a minimum of two years and seven months.
Section 6AAA: Five years and four months' imprisonment with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| Director of Public Prosecutions | Mr T. Glass | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Oldham | Bowler & Co |
HIS HONOUR:
1.Tansel Evren, you have pleaded guilty to one charge of using a carriage service to harass, contrary to s474 of the Criminal Code Act (Cth). The maximum penalty for that offence is three years. You have also pleaded guilty to one charge of persistent contravention of a family violence order, for which the maximum penalty is five years and a charge of attempted aggravated burglary, for which the maximum penalty is 20 years.
2.In addition, you pleaded guilty to the related summary offence of unlawful assault for which the maximum penalty is three months' imprisonment.
3.The facts of your offending are set out in the Prosecution Opening which was tendered as an exhibit on the plea. I will summarise those circumstances.
Circumstances of the offending
4.You are now 56 years old. Your date of birth is in August 1965. At the time of the offences you had no fixed address. The victim in this matter is
Jenny Barker[1] who is your ex-partner, with who you have a seven year old daughter Lealah[2]. You were separated when this offending occurred. At the time of the offending, you had an agreement with Ms Barker for you to attend her home each Sunday to see your daughter.[1] A Pseudonym
[2] A Pseudonym
5.On Thursday, 15 October 2020 at approximately 3 pm, Ms Barker heard a car pull up at her house. She thought it was her neighbour and she opened the front door. Instead you were there. You asked her what she was doing and why she was treating you like a goose. You also asked her who she was seeing. You went right up in her face, forcing her back into the doorway. She was terrified and thought you were going to push her inside the house and get her on her own. To extricate herself from the situation, she told you she had to go and collect Lealah from kinder.
6.She told you she was going to get an intervention order against you. You threatened her saying, 'Yeah, see what happens to you then. See what I do to you then.' Ms Barker asked you, 'Yeah, are you gonna hit me, are you?' She started yelling trying to get her neighbour's attention, you raised your fist and said, 'Shut your fucking mouth. Don't shout, be quiet.' The neighbours started to come out of their houses because of the shouting, and you left the address. The substance of the unlawful assault charge relates to when you moved up to her face, forcing her back into the doorway.
7.The next offence of using a carriage service to harass relates to Saturday,
17 October 2020. On that day you tried to call the victim twice at 2.26 pm and again at 3.24 pm, on a mobile phone registered to you through Telstra. The victim did not answer because she was in fear of your escalating behaviour. You sent a series of texts the following day, primarily about your daughter and your perception that the victim was excluding you from contacting her and poisoning her mind against you. You indicated your view that the victim had a new partner.8.As a result of your conduct on Thursday, 19 October 2020, police executed a complaint and warrant for a family violence intervention order on you, listing the victim, Ms Barker and your daughter Lealah as the protected persons.
9.On 22 October 2020, the Broadmeadows Magistrates' Court issued an interim order against you, the conditions of which included a prohibition on you contacting the victim, being within five metres of the victim, and committing family violence against her. You were present at court on 22 October, provisions of the order were explained to you in court.
10.On Sunday, 1 November 2020 at approximately 6.30 pm, you called and spoke to the victim. At 7.39 pm you sent the victim a photograph of your feet, but no further text in that message.
11.On Sunday, 14 November 2020 at about 1.30 pm, the victim was at the
Splash Aquatic Centre, Craigieburn car park. In the front passenger seat was a woman named Sarah[3] and in the rear seat were three children, namely Lealah and Sarah’s two children.[3] A Pseudonym
12.The victim saw a black Toyota Camry coming towards her vehicle which stopped in front of her car. You were driving this vehicle, you blocked her way, her path out of the car park. You started to call out from the vehicle window, asking the victim what she was doing. She asked you if you had followed her to the leisure centre and you said, 'I'm here to have a shower'. There is an audio recording of part of that incident, but it was not played on the plea and I have not seen it.
13.The victim drove away from the car park and you followed her out of the car park. She got the attention of a nearby police vehicle and you drove away. On 15 November 2020, at about 7.25 pm, you sent 19 messages to the victim from your mobile phone, none of which related to organising child custody which was the exemption on the order. You sent her various messages requesting that she ring you.
14.On Friday, 27 November, the victim received a phone call from you. You said to her, 'Stop posting things on social media about me, cunt.' The phone number in respect of the call is a payphone at a Service Station in Craigieburn, some 200 metres from the victim's house.
15.On 27 November, you followed the victim's online TikTok account. The victim was able to identify you through the profile, ‘@TanselEvren’ and contained a picture of you as a child.
16.On 28 November 2020 at about 4.14 pm, the victim received a phone call and she said, 'I know it's you Tansel, but you did not respond.' The called ended after approximately 70 seconds. A minute later, you sent a text message to the victim which read, 'When can I see Lealah?'
17.I now turn to the aggravated burglary. On Monday 30 November 2020 at approximately 1 am, the victim was at her home address in Craigieburn with her daughter, your daughter Lealah. She heard noises on the roof, sounding like someone walking around on the tiles. She called Triple 0. She then heard footsteps in the crawl space of the roof. Her neighbour who lives in an adjoining unit, also called Triple 0 as she heard these footsteps on the roof. The police air wing became involved and observed a male on the roof of the victim's house. When police arrived, they found that it was you on the roof. You came down off the roof and you were arrested. You were wearing black gloves and a hoodie. You were in possession of a head torch and a black cloth.
18.Detective Christopher Talbot entered the victim's house and searched the roof cavity where he saw two large roof tiles had been removed from their position. The prosecution case which you accept via your plea of guilty, is that it was your intention to commit an offence involving assault upon entry to the premises had you succeeded. There were, throughout this period, various arrests as set out in the Prosecution Opening in this six-week period.
19.After the aggravated burglary on 30 November 2020, you were taken from the victim's address to the Broadmeadows police station where you were interviewed. You were remanded in custody on that day, and you have been in custody ever since.
Victim impact
20.No victim impact statement was tendered by the prosecution but the offending in this case plainly would have been terrifying for the victim. She says as much in her statements to the police.
Guilty plea
21.You pleaded guilty on 25 February 2022, after a case conference in this court. Significant charges were not proceeded with via the prosecution. I accept that your plea of guilty is consistent with some level of remorse and a willingness to facilitate the course of justice. The utilitarian value of your plea is heightened in the current environment, where the court faces a substantial backlog of trials because of the pandemic. This heightened utilitarian value of the guilty plea was recognised by the Court of Appeal in the case of Worboyes v R [2021] VSCA 169, where the Court of Appeal said the sentencing discount for a plea of guilty in the current circumstances must be palpable.
Personal circumstances
22.You are now almost 57 years old. This offending occurred when you were aged 55. You were born in Adana, Turkey in August 1965 and you came to Australia in 1971 at the age of six. You are a dual national. Your parents are in their 80s and they live in Turkey. You plan to visit them after you are released from prison.
23.You have two siblings, an older brother aged 59 and a younger sister aged 51. I am told they live in Melbourne, and you have maintained contact with them. Since arriving in Australia you have lived in and around Melbourne's northern suburbs. I am told you attended Broadmeadows West Technical School, where you completed Year 10. You have had employment in the transport industry over your working life.
24.You have returned to this employment after release from a prison sentence in 2014. Apparently this employment will be available to you when you are released. You have a son aged 20 from a previous relationship. I am told you continue to have contact with him. You say that you now accept that the relationship with Ms Barker is finished.
Criminal history
25.I turn to your criminal history. You have a very substantial criminal history for a variety of offences commencing at the Broadmeadows Magistrates' Court in 1983. Your first prior conviction for assault was in 1989, also the Broadmeadows Magistrates' Court. You have a prior conviction in 1992 for aggravated burglary which was dealt with at the County Court.
26.In October 2009, for false imprisonment, make threat to kill, threatening to inflict serious injury, reckless injury and other charges, including other dishonesty charges, you were given a suspended sentence of six months and a community-based order for the dishonesty offences.
27.You ultimately breached that suspended sentence and the community-based order and the suspended sentence was restored in full in January 2011. Other offences dealt with on that day included assaults, contraventions of the family violence order and trespass. The overall sentence you received was appealed to the County Court and on 16 May 2011, you were sentenced to two years with a minimum of 18 months. I am told, and it is referred to in
Judge Gullaci's sentencing remarks, that some of these earlier offences related to your partner before Ms Barker.28.In June 2011, for recklessly causing serious injury, intentionally causing injury, making a threat to kill, threatening to inflict serious injury and burglary, you received a total effective sentence of four years and one month. A new
non-parole period was fixed of three years, as you were undergoing the earlier sentence from May 2011. This sentence was concurrent with that earlier sentence from May.29.I have been provided with the sentencing remarks of His Honour Judge Gullaci from June 2011. The circumstances of those offences were plainly, very serious and included punching, choking, threats, and the production of a knife as part of the assault. The victim in that case was Ms Barker.
30.I am told that you were in contact with Ms Barker whilst you were in prison serving that sentence. When you were released, the relationship with her resumed. Your daughter was then born in the period that followed. However, in March of 2016, you were dealt with in the Broadmeadows Magistrates' Court for two charges of unlawful assault. Again, the victim of those offences was Ms Barker. On that occasion you received an undertaking with conviction to engage in a men's behavioural change program.
Prospects of rehabilitation
31.You are not to be punished again for your previous criminal offences, but the orders made by the courts, which have included attempts to assist your rehabilitation have failed to curb your violent and controlling behaviour; nor did the intervention order that the victim obtained in this case.
32.Your criminal history including numerous family violence offences is significant, to issues of community protection, specific deterrence, the assessment of your moral culpability and your prospects of rehabilitation.
33.In the sentencing remarks of Judge Gullaci, His Honour said this of your prospects of rehabilitation.
'You have at best, guarded prospects of rehabilitation. You have
serious unresolved psychological and drug issues. You have difficulties coping with the end of relationships and have a clear tendency, in my view, of being violent within relationships. There is a clear risk you will re-offend in a similar manner again in the future.'
34.Over 10 years on now since those remarks I can be no more optimistic.
Judge Gullaci's concerns about re-offending were well-founded. I can only take a guarded view at best of your prospects of rehabilitation. In Judge Gullaci's remarks there is reference to your having a problem with heroin use in the period leading up to the offending that he dealt with. The length and breadth of your criminal history also indicates issues with drugs over the years. However, nothing is before me, indicating that that was a factor in the current offending. Although, I note that you were apparently homeless at the time of the offending, suggesting there had been a downturn in your personal situation.
Gravity
35.Now turning to the gravity of the offending. Your offending was family violence offending. From an overall perspective, the offending was sustained, taking place over approximately six weeks. Charges 2 and 3, occurred in defiance of an intervention order imposed after the commission of Charge 1 and the unlawful assault. The persistent contravention offence covers multiple incidents over close to a month.
36.Attempted aggravated burglary carries a maximum penalty of 20 years, reflecting its seriousness. In the case of DPP v Meyers [2014] VSCA 314, the Court of Appeal provided a non-exhaustive list of factors a sentencing judge could consider in assessing the seriousness of an aggravated burglary offence which in my opinion are relevant to the gravity of this offence, an attempted aggravated burglary.
37.Those factors include:
· The offender's intent at the point of entry (whether to steal or to commit an assault or to cause damage);
· The mode of entry;
· whether the offender was carrying a weapon;
· Whether the offender was alone or in company;
· The time of day at which the burglary took place;
· Whether the offender knew or what the offender knew or believed, about who would be inside; and
· Whether the offender was someone of whom the victim was particularly frightened.[4]
[4]DPP v Meyers [2014] VSCA 314 at paragraph 48
38.Here, it is clear you knew that Ms Barker and your daughter were present inside and your intent was to assault the victim. The prospective entry through the roof and the ceiling was planned and somewhat sinister, taking place in the middle of the night, when the victim was home alone with your young child. This must have been extremely frightening for the victim, utterly compromising the sense of safety she was entitled to feel in her home.
39.It is clear there was some planning involved in this offending. You had a head torch with you. This was not a spontaneous offence at all. Your entry into the premises seems to me to have been imminent and then your intention was thwarted in the end by the arrival of police.
40.As is so often the case with family violence offences, you sought to exercise control over the victim after the relationship had broken down, by violent and threatening behaviour in contravention of court orders. Such orders are put in place to protect people in family violence situations and to provide them with a sense of safety. Both objectives fail completely when offenders behave in the way that you did. You have committed violence against the victim before, and received a lengthy prison sentence for it. In the circumstances you must have well understood the seriousness of your offending. I find your moral culpability to be high.
41.In the case of Pasinis v The Queen [2014] VSCA 97, the Court of Appeal said this in relation to offending involving family violence.
General deterrence is of fundamental importance in cases of
domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key objection lies in deterring the violent conduct by sending an unequivocal message to would be perpetrators of domestic violence, that if they offend, they'll be sentenced to a lengthy period of imprisonment, so that they are no longer in a position to inflict harm.[5][5] At paragraph 57
42.Those principles are plainly relevant to my sentencing task as accepted by your counsel, Mr Oldham. Deterrence both specific and general, community protection and denunciation are all important sentencing considerations in this case.
Comparative cases
43.I have had regard to the comparative cases referred to in the submissions of Mr Oldham. Current sentencing practices are one of the many matters to be considered by the court in the instinctive synthesis of sentencing. They are a guide but not a controlling factor.
Custody
44.You have been in prison on remand during the pandemic. I take that into account as a mitigating factor because of the additional hardship of being in prison during this period. Mr Oldham conceded that Barwon Prison may not have been as affected as other prisons, but restrictions on visits, work and employment courses, have been in place. Such conditions are likely to continue for some time into the future.
Totality
45.The totality principle requires that the overall sentence I impose, must be just and proportionate to the totality of your offending, which was all directed towards the same victim, and which was connected in time and in purpose. To comply with the totality principle, I will moderate the periods of cumulation to be imposed on the base sentence for the attempted aggravated burglary. That said, Charge 1, use carriage service, the summary offence of unlawful assault, and the attempted aggravated burglary are not part of the persistent contravention charge and I will impose some cumulation on some of the other charges.
46.Mr Evren, I sentence you as follows:
47.In relation to Charge 1, of using a carriage service to harass, you are convicted and sentenced to two months, now that sentence is to commence today. That is a Commonwealth sentence so I have to indicate the commencement time. It commences today.
48.In relation to Charge 2, persistent contravention of a family violence intervention order, you are to be convicted and sentenced to 14 months.
49.In relation to Charge 3, attempted aggravated burglary, you are convicted and sentenced to three years' imprisonment.
50.In relation to the Summary Charge 2, unlawful assault, you are convicted and sentenced to two months' imprisonment.
51.I order that seven months of the sentence on Charge 2 and one month of the sentence on Summary Charge 2 are cumulative on each other and on the base sentence of three years in relation to Charge 3.
52.That means that there is a total effective sentence of three years and eight months' imprisonment. Now, the sentence on Charge 1 is effectively concurrent, that is it starts today.
53.The minimum non-parole period is the period the law - the justice requires to be served before becoming eligible for parole. In this case, I fix a non-parole period of two years and seven months' imprisonment. Now it is 561 days is that right, or 560 days?
54.MR GLASS: It's 561, Your Honour.
55.HIS HONOUR: I declare 561 days of pre-sentence detention is to be deducted administratively from the sentence that I have imposed, pursuant to s18 of the Sentencing Act.
56.Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have imposed a sentence of five years and four months' with a non-parole period of four years. Now are there any other orders that need to be made? Mr Glass, were there ancillary orders?
57.MR GLASS: No, there weren't Your Honour.
58.HIS HONOUR: No, all right. No questions about the numbers, that's all clear enough is it?
59.MR GLASS: Yes, Your Honour.
60.HIS HONOUR: All right. Mr Oldham if you want us to leave the link open we can, so you can talk to Mr Evren.
61.MR OLDHAM: Thank you, Your Honour.
62.HIS HONOUR: All right, I'll get off the link and adjourn sine die.
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