Director of Public Prosecutions v Gediktas
[2019] VCC 1510
•17 September 2019
guj
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
CR-19-00938
Indictment No: J12435173
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GOKHAN GEDIKTAS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 Sept 2019 | |
DATE OF SENTENCE: | 17 Sept 2019 | |
CASE MAY BE CITED AS: | DPP v GEDIKTAS | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1510 | |
REASONS FOR SENTENCE
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Subject:aggravated burglary, theft, possess drug.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Hannan | Office of Public Prosecutions |
| For the Accused | Ms Skaburskis | Doogue + George |
HIS HONOUR:
Gokhan Gediktas, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and one charge of possession of a drug of dependence. The maximum penalties are correctly set out in the agreed opening that was marked as Exhibit A. I accept that the lesser maximum penalty applies for the possession of a drug of dependence.
You have a relevant criminal history.
This matter was opened to me last Thursday by Mr Hannan who appeared on behalf of the Director of Public Prosecutions of this State. A written opening, dated 23 August 2019, was marked as Exhibit A. Ms Skaburskis informed me that this was an agreed statement of facts. There were some photographs also that were placed before me and they were marked as Exhibit B.
It is unnecessary to go into the full details of your offending in these my reasons as I will not stray beyond the agreed facts.
Very briefly stated, on 15 September 2018 you in company with two others attended by car at an address in Knole Street, Hadfield. You entered the unit at that address as a trespasser and intending to steal. You had with you an offensive weapon being a knife. That feature made it an aggravated burglary. It was also obvious enough that prior to that entry there was a pretext being engaged in, as a person you were with, likely Kassar, posed as an AGL representative and went and knocked on the front door. The occupant waved him away. Twenty seconds later he knocked again this time with the pretext of using the toilet. You were with him at that point. Again the resident refused entry. You and he saw that there were people present in the unit. That was obvious. I note that persons being present is not particularised in relation to the aggravated burglary nor is it alleged that there was an intent to assault existing at the time of entry. Rather the specified intent is an intent to steal and the burglary becomes an aggravated burglary by virtue of the knife you had with you. The prosecutor, in explaining the decision to frame the presentment in that way, told me that it was possible that at the time of actual entry there were not people present within the house at that point. They had fled when they heard the first signs of entry at the back door. So I sentence in accordance with the form of the indictment and the agreed summary.
The fact remains of course, that the back door was kicked in by one of your offsiders and those within the house fled outside. You then entered in company with another or others, one of whom also was armed with a pool cue. It was around 11.40 am.
The occupants who had fled rang the police who attended very swiftly. So swiftly that you and another were detected within the house. You were carrying a pole at that point. You fled out into the street. In the house you had what appeared to be a covering over your face as well as gloves. It is possible that the covering was a shirt pulled up over your face or even the hat you were wearing pulled down so I do not hold against you the use of any elaborate facial disguise. The gloves were worn for a reason and speak of some level of preplanning.
You were arrested and then subdued outside and found to be in possession of the knife, the occupant’s mobile phone, some house keys as well as some cigarettes taken from the unit. You also had the set of car keys for the car in which you had arrived at the premises. Once in the divisional van, you made efforts to hide the small quantity of drugs that you possessed. It was ultimately found on the floor of the divisional van. You denied that it was yours but the camera footage from the van interior showed the true position.
You gave a self-serving and incomplete account as to your purpose in going to the premises which is inconsistent with your plea and also to an extent the account given by way of instructions. Your counsel does not suggest you were open or honest with the police. It is in no way an aggravating feature that you chose to lie to the police when interviewed. The chronology of the matter in the Magistrates' Court is spelt out at paragraph 33.
You have been in custody for about a year.
In Mitigation
Ms Skaburskis conducted a plea on your behalf. She had prepared a written outline marked as Exhibit 1. She took me to your background in detail including your criminal history. She made submissions as to the circumstances of your offending including your role. She placed before me a number of references, a letter of apology and a bundle of course certificates and urine screens.
She relied on a number of matters in mitigation. They were:
· Your guilty plea and the stage of that plea;
· The presence of remorse;
· Your good employment record and prospects of rehabilitation
In her written submissions she had argued that it was open to impose a term equivalent to your pre-sentence detention that you had served. She abandoned that submission almost immediately and then raised her concerns as to the availability of the second disposition she had nominated being a term of imprisonment with your ultimate release onto a community corrections order. Her doubt about the availability of that outcome was as a result of your non-compliance with the most recent community corrections order imposed in August 2017 and the fact that you had comprehensively breached that order by committing a range of offences as well as by non-compliance. I asked her if she was placing the breach report before me. She said that she would not do so, as it did not assist your case and she then abandoned the submission as to a combination type sentence being open here. She conceded the inevitability of a prison term requiring the fixing of a non-parole period.
Prosecution
Mr Hannan who appeared on behalf of the Director of Public Prosecutions, submitted that this was serious offending with some level of planning by a man with some relevant past criminal history. He submitted that specific deterrence and general deterrence were of significance here. The prosecution submitted that the only appropriate disposition was a term of imprisonment with a non-parole period and that it would not be open to impose a term of imprisonment which would then permit the imposition of a community corrections order taking effect upon your ultimate release.
Victim impact
There are no victim impact statements here. I hardly need to have a victim impact statement to know that this sort of entry is alarming. The occupants after all had fled their own home in broad daylight. Many statements have been made by the courts over the years as to the way that aggravated burglary can impact upon the feelings of safety and well-being of the occupant or homeowner. I take into account the impact of your crimes as I am required to. What I cannot do is speculate about any long term impact in the absence of victim impact materials placed before me.
Background
I turn to your background. I am going to do it quite briefly. I am not going to restate it chapter and verse in my reasons. It is set out in some detail in Ms Skaburskis’ excellent written submissions that were filed before me and was supplemented by some further detail provided in her oral submissions as well as materials in the various references placed before me. I have no reason not to accept the personal family background placed before me and I do accept it. It was actually a good background and does not explain your conduct at all. You were born on 21 August 1986 and recently turned 33. You were one of three children born of Turkish immigrant parents. You were the eldest of the three children and the other two, a younger brother aged 21 is doing well as is your 31 year old sister. They both live at home and they plainly have good jobs and are settled in the community. You left school at a very young age and did so to pursue an apprenticeship which you completed in cabinetmaking. So of course, that was some achievement for someone of that age. Thereafter you worked in that area for a number of years but later also worked as a bricklayer and most recently as a driver. You had your own truck at one point. You have had a good employment record and obviously have a supportive family, there is no question about that. There are some thoughtful references placed before me from your mother and father and a family friend as well as from a past employer and your current fiancé. There is a description in the materials of two long term relationships which you have had. Neither ended well at all. That is an understatement. The first one caused you dismay as you learnt as a much younger man that a child you thought to be your own was not. Your mother speaks of the deep impact upon you of that discovery. So too does Mr Aldemir in his reference. Your life it would seem took a downward turn all those years ago and you fell into a depressed state. There were some gaps in offending as disclosed in the criminal history. The more recent relationship was progressing well but tragically your partner died in a car accident in 2016. Following her death in 2016, it is said that you fell more heavily into drug use. As I understand the submission, you did not return to work from that point. You have been in custody since 15 September 2018. You have been doing courses in custody and are drug free. You are currently engaged to a young woman who lives in Turkey. There is a powerful reference from her, marked as Exhibit 2. You hope to resume work as a truck driver upon your eventual release. Your parents support that decision. I have already spoken of their references. I have read them again since the plea the other day and they make for sad reading. They still see the good in you and not doubt there is good in you as there is in most of us.
Your criminal history is of clear relevance to my task with appearances for trafficking, dishonesty and violence offences. You have served a number of prison sentences in the past and have breached a number of court orders. You had only finished a community corrections order a matter of weeks before the commission of these offences and that had followed the service of a nine month prison term.
That community corrections order was subject to judicial monitoring by the Magistrate. That order is also being breached and your counsel told me that there were a range of offences committed in the currency of that order. Those matters and the breach proceeding are listed for consolidated plea in October. The need for specific deterrence is plain enough here. You have been given many opportunities by the courts.
Guilty plea
I turn now then to the matters that have been raised in mitigation. I turn firstly to the guilty plea. You have pleaded guilty and I will treat it as an early enough plea though not entered at the earliest of stages. The matter settled on the first day of the contested committal, but you had not been involved in any cross-examination. It settled prior to that point. There was then a forlorn application for summary jurisdiction. That failed as it had to and the matter came to this court by way of hand up brief. What is important is that you have pleaded guilty. I must reward you for that stance. You have facilitated the course of justice and done so at that early stage. You have taken legal responsibility for your crimes. Witnesses have been spared the experience of coming to court to give evidence on your account. There was a contested committal but as I say, it did not involve you. Your co-accused Mr Kassar awaits his trial in this court.
In your case, the community has been saved the time, cost and effort associated with the conduct of a committal in the Magistrates' Court or a trial up in this court. So I take these matters into account in mitigation. You must do better than you would have done had you been convicted having run a trial. You were also cooperative enough with the police though plainly did not give a truthful or complete account to them.
Remorse
I turn now to the issue of remorse. I have not found this an easy matter actually.
A guilty plea is often but not always an indicator of remorse. You pleaded guilty and at an early stage. It was however an overwhelming case against you. You were after all caught within the house. You provided an account to the police which was replete with justification of your conduct and coming close to denying any actual offending.
Of course, it was a false account. That is not a matter of aggravation. Your present instructions that have been placed before the court are simply impossible to accept. They just made no sense. I did not accept your account as provided to the court and as a matter of fairness told your counsel as much. She chose not to call you.
None of the accounts you give of your reason for being at the house are suggestive of any great remorse at all. You told the police that you were not in the wrong and that the charges were 'bullshit'. A year later, there is still something of that inability to grapple with your own criminality. You have pleaded guilty and you have taken legal responsibility, no question about that, but for whatever reason, you still cling onto some notion of having had some right to attend upon the property and denying any real preplanning with the other people you attended with. Ms Skaburskis submits that you have some remorse and relies upon your guilty plea. She also points to your apology (Exhibit 4) and the references to remorse as contained in the bundle of written references marked as Exhibit 2. The problem is those observations made by others are made of the person who still seemingly grapples with the serious criminality engaged in on this day. The person who still urges upon the court a fictitious or nonsensical account of the reasons behind the attendance, what took place and why. It makes my task difficult. I have no doubt you are sorry to have placed yourself in the position you find yourself in. That is not remorse. I have no doubt you regret placing your family in this position. That is not remorse either.
I have read through all the materials again since the plea and I am prepared to find the existence of some remorse here. It is far from complete.
Rehabilitation
As to your prospects of rehabilitation, your counsel was arguing that you had reasonable enough prospects. You are 33 years old with a decent career behind you and some gaps in offending behaviour. Your criminal history displays that you have not taken the opportunities offered by the courts. Your prospects will hinge on your remaining drug free upon your ultimate release from custody. That has been a problem for you for some years now. If you do not remain drug free, you will have no realistic prospects of rehabilitation at all. I am sure you will be deterred to a degree, by the process of being charged and then being imprisoned. You have been in custody for about a year. That is the longest you have ever been in custody. That confinement will continue. My sentence will also then serve to deter you to a degree.
You still have good family support, which is encouraging, and as I have said, I am impressed by those various references placed before me. You have at least a plan for your release with work and marriage waiting in the wings. I believe that your prospects of rehabilitation are actually pretty reasonable so I accept your counsel’s submissions in that respect.
General remarks
Your counsel conceded that this was serious offending. She focused on your role, I believe unduly so. There is little joy for you in your role being described as supportive or subsidiary. It wasn’t actually a minor role at all. You entered these premises intending to steal. You entered with an offensive weapon. You had attended with other men. You in fact drove that vehicle to the scene, which is what you told the police. There was no lawful basis to attend and your offsider disguised the true purpose with the AGL pretext. This was not some chance attendance by three unrelated people in a car. It was a deliberate planned group attendance. You drove. It is not mitigatory that you were there to provide support or back up or ‘muscle’.
This was a group attendance and entry. That was the essential nature of the entry to the premises. A group entry as opposed to one person turning up. One person is plainly far less threatening than three. The arrival of one person would be a very different proposition. Strength of numbers are not uncommon in this setting.
They exist for a reason and there is that group dynamic where in my view it is quite unprofitable to closely examine and dissect the individual conduct of but one member of the group.Nor do I accept the account as to why you say you attended or your claimed surprise as to the turn of events. Again, you entered these premises intending to steal, not to lawfully recover or retrieve property. Your version at least provided to the court, which was different to the version provided to the police, was that a man named George told you that Mr Gad owed some money and you then attend with two other men but without George and you did so to ‘mediate’.
Even on your own version, which I do not accept for one moment, you had no business inserting yourself into this event at all.
You had a variety of property upon your arrest. It really is not to the point that you did not kick the door in. Your offsider did and he, you and another then entered.
You were in this up to your neck as you well know, with what can only have been a calculated decision to attend this property. There was nothing spontaneous here. You arrived by car, you drove, your co-offender had the AGL pretext, you wore the gloves and you had with you the offensive weapon being the knife. You entered with the intention to steal. This was a serious aggravated burglary. The true motivation driving this attendance, and then this entry, well that is quite impossible for me to discern.There has been much discussion in the Court of Appeal about the sentencing practices for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. In the case of Meyers, a number of considerations were set out by the Court of Appeal but of course they were not exhaustive.
They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
Here there is undoubtedly an aspect of potential or possible confrontation even though it is charged as an entry with intention to steal, with aggravation achieved by the carriage of the knife. You and your offsiders knew there were people inside those premises at an earlier point. You had a weapon. This was a premeditated attendance and entry. It was a joint offence albeit one carried out in daylight hours. It was carried out in relation to residential premises. This was no minor example of the crime of aggravated burglary. Far from it.
The penalty for aggravated burglary was increased back in 1997. When introducing the amending legislation, the relevant Minister noted the prevalence of the offence and the fact that this sort of offence undermines the sense of security people feel in their own homes.
Aggravated burglary is by its very nature serious criminal conduct. This one was a serious offence, given the particular features of it to which I have already referred. That is, planned, joint entry into another person’s home, the carriage of a weapon and an aspect of potential confrontation here. Plainly the drug offence is far less serious. So too the theft in the circumstances.
Purposes
I have to consider a number of purposes of sentencing. They include your prospects of rehabilitation which are quite reasonable subject to your remaining drug free.
I am required to denounce your conduct. That is an important consideration.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. Well, again that is an important sentencing purpose.
I must also seek to deter you from offending in the future. That is relevant here given your criminal history and the most recent opportunity extended to you.
Community protection is also relevant. It must also be given some weight here.
General deterrence is an important purpose of sentencing in this case. By general deterrence I am referring to the need for this court to send a clear message to other individuals in the community who might be minded to commit this sort of serious aggravated burglary. Those contemplating this style of offence, must understand that this sort of conduct will be met with a sizeable term of imprisonment.
That is because of the serious nature of aggravated burglary, a fact which has been spelt out by our Parliament and emphasised time and time again by the Court of Appeal of this State.
I must and do pay regard to current sentencing practices. It is not a single controlling factor.
I have considered the Sentencing Advisory Council’s Snapshot in relation to the offence of aggravated burglary Snapshot number 211 of June 2018. Statistical material really has inherent limitations. The statistics say nothing as to the individual features of the offence or of the offender. The snapshot and the more up to date SacStat data does however demonstrate how seriously the offence is often treated, with the most common principal sentence of imprisonment falling between three to less than four years. There is also a very healthy band of offenders sentenced to between four and 5 five years as well as a very healthy band sentenced to a lesser term, between two and three years.
I have to pass an appropriate sentence in your case for your crimes. It is not an exercise driven by the statistics.
I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences together with relevant summaries. See 32.15.4.1 & 3. Other cases are not sentencing precedents. There is no such thing as one correct sentence. What I have got to do is exercise my discretion in your case.
I must pay regard to the maximum penalty in play here as well as the impact of the crimes. I have hardly mentioned in my reasons to date the related theft and the possession of the drug of dependence. They are plainly far less serious than the aggravated burglary.
Time served/ combination sentence/head sentence with non-parole period
Ms Skaburskis had argued in her written outline that you had served sufficient time in custody already and that a term equating to that time would suffice. Plainly that cannot be so. She sensibly abandoned that submission. Such an outcome would be almost derisory, given the gravity of aggravated burglary. Her secondary submission which also was abandoned in the running was that it would be open to ultimately release you onto a suitably conditioned community corrections order. As I say she abandoned that submission and recognised the difficulties inherent in it including of course your
non-compliance on the most recent order.I have though considered whether such an outcome is open in this case.
There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of a community corrections order even one in combination with a prison term.
What I have to do is to pass appropriate sentences.
Confining a person is always a matter of last resort for any court. Section 5(4C) of the Sentencing Act, prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order. Plainly there must be confinement here. That much is conceded but of course you have already served over a year.
Confinement is required here, not just confinement but for a significant period and for well in excess of your existing pre-sentence detention.
If a suitably conditioned community corrections order, in combination with a term of imprisonment could achieve all the needs of sentencing in this case, I would proceed in such a way irrespective of whether the submission was abandoned by your counsel.
Such a sentence would not in my view achieve the purposes of sentencing including the need to punish, to denounce and to deter you and others. Nor does your past lack of compliance commend such an order to me.
It is not open to me to structure sentences such that a community corrections order is even theoretically available. The aggravated burglary is just too serious. I will select individual sentences, make orders as to the extent of cumulation or concurrency, reach a total effective sentence in this way and then fix a non-parole period. I am not able to speculate as to whether or not you will be released on parole. That is entirely in the discretion of the Adult Parole Board and has nothing to do with me at all. It will be between you and them.
Totality
I have taken into account the principle of totality of sentence.
I must consider whether the effect of the sentences I will soon pronounce is just and appropriate and commensurate with your overall criminality. I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you.
Though Charge 2, the theft is a separate offence with separate elements, it is very much connected to the aggravated burglary. The aggravated burglary was committed. You entered intending to steal and then you stole. Now it is true that not every aggravated burglary leads on to other offending. This one did, with the theft of the items described. The drug was located courtesy of the pod footage. It is the least of your worries. All these offences occurred in this very tight time frame. Ultimately I believe complete concurrency is open to me here.Sentence
If you could stand please.
On the charge of aggravated burglary, you are convicted and sentenced to 40 months or three years and four months' imprisonment. That is the base sentence.
On Charge 2, theft, you are convicted and sentenced to 14 days' imprisonment.
On Charge 3, possession of the drug of dependence, you are convicted and sentenced to one days' imprisonment.
The base sentence is the 40 months or three years and four months' imprisonment imposed on the aggravated burglary. The other sentences will be served concurrently with the base sentence and upon each other
Total effective sentence
This produces therefore a total effective sentence of 40 months or three years and four months' imprisonment.
Non-Parole period
I fix a period of 25 months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
You have already served 366 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty to these charges and then been found guilty by a jury, I would have sent you to prison for six years. I would have fixed a non-parole period in that setting of four and a half years and that is also to be noted in the records of the court.
Are there any other matters that I need to attend to, Ms Thomson or Ms Skaburskis?
MS THOMSON: No, Your Honour.
HIS HONOUR: All right. Ms Skaburskis, you will go down and see your client downstairs?
MS SKABURSKIS: Yes, Your Honour.
HIS HONOUR: Yes, all right.
Well that completes the matter then. So I will sign that formal order but Mr Gediktas can be removed now.
MS SKABURSKIS: As Your Honour pleases.
(Prisoner removed.)
I have signed that. Thank you.
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