Director of Public Prosecutions v Genc

[2024] VCC 441

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00468

DIRECTOR OF PUBLIC PROSECUTIONS

v

HASAN GENC

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2024
DATE OF SENTENCE:	10 April 2024
CASE MAY BE CITED AS:	DPP v Genc
MEDIUM NEUTRAL CITATION:	[2024] VCC 441

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Aggravated Burglary – Theft – Extortion – Accused involvement with outlaw motorcycle gang – sentence indication given was a term of imprisonment combined with a the imposition of a community corrections order - Positive prospects of rehabilitation – Application of Verdins
Legislation Cited:	Sentencing Act 1991
Cases Cited:	R v Verdins [2007] VSCA 102
Sentence:	12 month’s imprisonment (time served) and a 4-year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Cameron	Office of Public Prosecutions
For the Accused	Ms Radovic	Balmer & Associates

HER HONOUR:

1Hasan Genc, you have pleaded guilty before me to one charge of aggravated burglary, one charge of theft and one charge of extortion.  The facts underlying this offending are as follows.  In describing the facts underlying this offending, I also annex the prosecution summary prepared for the sentence indication hearing, to my sentencing remarks.  To some extent, it is a lengthy summary, but to another extent it is in fact somewhat shortened.

2The complainant in this matter ran an accounting firm, of which you were his client for about five years before this offending.  The complainant gave you financial advice, completed your tax returns and so on.  In July 2019, you asked the complainant to communicate with you via an internet application called 'Signal', rather than through phone calls.  That application meant that messages sent via Signal were deleted soon after they had been received and read.  You told the complainant that you were involved with the Finks motorcycle gang and had at one stage been a national president.  The Finks motorcycle gang is of course an outlaw motorcycle gang which regularly engages in criminal activity.

3Ultimately you distanced yourself from the Finks motorcycle gang to seek patching with the Hells Angels of which your co-accused, Sam Ercan, was a member.  It was clear from material provided through surveillance and the examination of other technological material that in the month leading up to this offending, you and Mr Ercan were in regular contact.  The offending occurred on 15 November 2019.  It is the prosecution case that at the time of this offending you were seeking to join or become patched over to the Hells Angels and this provided some motivation for your offending.

4On 4 October 2019, the complainant received by courier a parcel addressed to your business which had not occurred before and he informed you of its arrival by text.  You then made arrangements to collect that parcel from the complainant at his office and you were also going to give him instructions relating to your tax return. The date fixed upon was 15 November 2019.  There was evidence that you and Ercan were together on 14 November.  On 15 November, you re-scheduled the meeting several times from 5.30 to 7 pm, then ultimately to 9 pm. 

5CCTV footage revealed Ercan and an unknown male exiting from your car, which was parked about a hundred metres down from the complainant's office, and then going into the complainant's office.  The complainant had left the door of his office wedged open so that you could enter.  Instead, two men entered, one of them Ercan.  They were both wearing dark clothing and peak caps.  Ercan told the complainant he owed someone half a million dollars from 18 months before.  The complainant denied this debt, but Ercan insisted on it and demanded to know when the complainant was going to hand the money over.  He also demanded to know where the hard drive on the security camera in the office was located.

6You then entered the office and pretended not to know what was happening, indeed you said, 'What's going on?' and asked who these people were.  Mr Ercan also asked you who you were and then said that he and the other man were there to collect money owed by the complainant.  Your actions in entering the office in order to be part of this scenario, underly Charge 1 on the indictment, aggravated burglary.  It was the prosecution case that you were completely aware of what was happening and indeed had been part of the pre-planning that had gone into it.  One of the two men then pushed you into a chair and took your wallet from your packet, taking out your driver's licence and telling you in front of the complainant that they knew where you lived.

7The men then obtained information about the complainant of the location of the CCTV hard drive which they removed.  Ercan then threatened the complainant with a handgun, demanding the half million dollars and saying that he'd been sent there to put a hole in the complainant's head.  He held the gun to the complainant's leg and to his temple.  Ercan told the complainant they had been following him and that they knew where his son and daughter lived, and he gave the complainant seven days to come up with the money.  He extended this to 30 days after the complainant told him he couldn't possibly get hold of the money in a week.

8Ercan then said that he knew your details and told the complainant that 'We live in the same world as him, we'll go through him to get the money'.  Your knowing participation in this scheme underlies Charge 3 on the indictment, the charge of extortion.  Ercan and the unknown man then left with the CCTV hard drive which underlies Charge 2 on the indictment, theft.  Other CCTV footage then captured the two men leaving the complainant's office and placing the hard drive in a nearby disposal bin.  You remained in the complainant's office, telling him the two men were Hells Angels, that the complainant couldn’t escape them and should pay the money and it would be best he not tell the his wife because she would want to contact police.

9You then left the complainant's office, went back to your car and CCTV footage from various streets showed you driving around until you picked up the two men and drove back to Melbourne.  The complainant drove home to his wife who observed that he was terrified, and he told her what had occurred.  He stopped her from contacting police that night because of his fears for his son and daughter.  Police however were called the next day and attended the complainant's house.  You continued to have regular contact with the complainant, both by text and by telephone, and in that time over the next months up until February 2020 when you were arrested, continually urged him to pay the money, warning him of the repercussions, not just to the complainant, but to yourself

10You, in fact offered to broker an agreement for the complainant because of, you said, your associations with outlaw motorcycle gangs.  At one stage, the complainant with the assistance of police set up what is called 'a pretext conversation' whereby he rang you.  A conversation took place where you urged him, semi-threatened him, and continually pushed him to pay over the money and this was part of the prosecution case against you.  This messaging, this urging, this contact, continued on between you and the complainant for some months and included conversations where you told him you knew he had gone to the police, that this wouldn't save him and so forth and so on. 

11You, as I said, became threatening, calling him selfish for not realising the position he had put you in, and this went continuously until you were ultimately arrested on 25 February 2020.  You, on arrest by police, exercised your right to answer no questions and conduct a no-comment record of interview. 

12The matter then proceeded by way of contested committal where witnesses were cross-examined, and the matter was listed for trial in the Shepparton circuit,  originally for July in 2023.  However, in late June 2023, the matter was adjourned to the Shepparton circuit in November and then adjourned again on an application for a sentence indication hearing before His Honour Judge Brooks of this court on 6 December 2023.  You remained in custody between 25 February 2020 and 4 March 2021.  Ultimately, on 12 February 2024, a second sentence indication took place before me and as a result of that you entered a plea to the charges I have outlined on 16 February 2024.

13The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for theft is 10 years' imprisonment and the maximum penalty for extortion is 15 years' imprisonment.  I received no victim impact statement from the complainant, but in my view, I am safe to assume that both the complainant and his wife were under a great deal of stress, were terrified by the threats levelled against their children and were traumatised by the entire incident and that this trauma would be long lasting.

14I now turn to your personal circumstances.  You are 38 years of age, one of four children born to your parents.  Your father emigrated here from Cyprus in the 1950s and married your mother here in the late 1970s.  They are still married, and you told psychologist, Carla Ferrari, whose report was tendered on the plea, that you have a close relationship with them, in fact live with them and are their sole financial provider and are a carer for both.  Your father has only five per cent vision as a result of diabetes.  I have been informed today he has now been hospitalised due to a fall.  Your mother cares for him.  You care for both of them, and you also reside with your daughter.

15You originally grew up on an orchard farm in Shepparton.  Your parents then moved to Melbourne, your mother working as a court stenographer and your father as a builder.  You told Ms Ferrari they worked long hours to support your family and you had little supervision and ultimately ended up associating with people who were engaged in criminal activity.  You struggled at school, leaving after Year 9.  However you were a champion sportsman, both in athletics and in particular freestyle wrestling, of which you were Australian champion for four consecutive years from 2000 to 2003. 

16You were to be invited to participate in the Commonwealth Games, but were involved in a serious motorbike accident incurring injuries which required a spinal fusion and knee surgery which ended your sporting aspirations and saw a decline in your mental health.  On leaving school, you worked with your father in construction as a concreter.  Then at the age of 19, you went to Cyprus where you joined the military, remained there for some years, rising to the rank of commander.  Ultimately you returned to Australia and in 2013 opened a laser clinic business which you grew and then sold. Since then you have been engaged in running your own concreting businesses and other businesses relating to the construction industry.

17You were introduced to outlaw motorcycle gangs by a neighbour, and you were recruited ultimately to the Finks.  Apparently, the discipline, the structure of it, appealed to you and you continued in association both with the Finks and then the Hells Angels for a number of years.  You have a 13-year-old daughter as a result of a relationship which ended in the very early stages of pregnancy.  My understanding is, and this bears some description, is that you and your then partner were residing with her mother who was overbearing and strict.  Your partner was reluctant to leave.  You left and it was then she discovered that she was pregnant. 

18The two of you reconciled, but she ultimately returned to her mother and the relationship ended and you did not see your daughter for her first three months.  Over the years, as a result of Family Court proceedings, you gained shared custody of your daughter which became fulltime as the mother conceded that you were providing the more appropriate dare and relinquished her claims in that regard.  You have a very close relationship with your daughter.  That has been problematic in the last year when, because of an argument that you had with her over her access to social media.

19She abruptly decided to went to live with her mother who was also living with her own mother and then ultimately a family violence order was taken out in March of last year unbeknownst to you.  There were nine months where you had no contact with your daughter who then contacted you, you having in the meantime been told by your sister that she was living under the same strict regime that her mother had been subject to.  Ultimately, as I said, your daughter rang you, asked you to collect her and she now lives with you.  You have had no other relationships in the years since your daughter was born, devoting yourself essentially to your care of her and this is to your credit.

20You have no difficulties with drugs or alcohol.  You do have a number of prior convictions beginning in 2004 on charges of making a threat to kill, indecent language and possessing the proceeds of crime, all charges being dealt with by non-conviction adjournments.  In 2005 you received a suspended sentence of nine months on charges of threat to kill, unlawful assault, stalking, recklessly causing injury and criminal damage.  In 2010 you were fined for driving offences.  Again you were placed on a suspended sentence for more driving offences in 2011.  The last prior conviction you have dates from 2014 where you were dealt with by way of a non-custodial disposition for making a false statement in relation to a to a travel document.

21Whilst the earlier prior convictions are somewhat concerning, I note the court response to them.  I do regard them as being much removed in time from the offending that I must deal with today and I accept that apart from that there is nothing else that is relevant insofar as this offending is concerned.  Subsequent investigations by police into your businesses revealed that you were in some financial difficulty at the time.  It would appear you blamed the complainant for this due to advice you received from him when you purchased a business, unwittingly inheriting a $1.5m tax debt, which necessitated you selling the family home, and this would appear part of the motivation for you engaging in this most serious offending.

22When you were arrested, police raided your home and your 10-year-old daughter was interrogated by police.  There was a thorough and fairly violent search of your home.  Your elderly parents were traumatised and this weighs upon you.  Of course, Mr Genc, what you have to understand is that if you're going to be a member of an outlaw motorcycle gang and engage in the sustained serious offending that you did on this occasion, then violent police raids on your home are going to be part of your life and by your offending you bear responsibility for the trauma visited on your parents and your daughter on this occasion.

23You had a very difficult time, whilst you were in custody.  You were placed in Melbourne Assessment Prison on 28 February 2020 where you were held until 12 March 2020 and in that time were placed in solitary confinement for two weeks as was routine at the time due to COVID restrictions and steps that had to be taken by prison authorities to isolate new prisoners for health reasons.  You were then sent to Marngoneet Prison where you were placed in management, however, you did have some freedom and in the time you were there between March and July of 2020, were able to become a peer support listener in May of 2020 which is a position of trust. 

24You were also working as a billet.  You, again, in that prison, were subject to the restrictions with lockdown and face to face visits were denied to you.  Ultimately, however, as a result it would seem of the positions held at Marngoneet, threats were made to you by someone purporting to be part of another motorcycle gang and it was decided that for your safety you should be transferred to Port Phillip. This occurred on 15 July 2020, and you were held there until you were released on bail on 5 March 2021.  You were held in the Scarborough South unit in circumstances whereby you were allowed out of your cell for one hour a day, although you were allowed in that hour, for what it was worth, to mix with other prisoners.

25You became a billet cleaner there on 24 August 2020.  There were a number of occasions where you had meetings with prison authorities complaining of the conditions under which you were living, but it was believed that because of your known association and membership of an outlaw motorcycle gang, that you should be held in these conditions.  Again, I have no doubt this was stressful for you, and I will refer to what psychologist, Carla Ferrari, asserted on her examination of you, but again this comes with a decision to belong to an outlaw motorcycle gang.  It follows you into gaol, it did follow you into gaol and that is what you can expect when you belong to an outlaw motorcycle gang and come to the notice of police.

26There was some dispute on the plea about the restrictions that you had.  It was certainly noted that you had a large number of phone calls and video contacts with your family.  However, you were credited with only six emergency days which would indicate that you were held in what is known as 'the slot' or in isolation, those prisoners earning less than other prisoners by way of emergency management days, indicating that those prisoners are being held under management conditions.  I accept that you were held under management conditions, not because of disruptive activity by you which usually leads to placement in 'the slot', but because of your membership with the motorcycle gang.

27Ultimately, you were released on bail, and you have been on bail I accept for a considerable period of time without any difficulties.  You have abided by reasonably strict bail conditions.  You have not come to the further attention of police.  You have also I am satisfied withdrawn from membership of the Hells Angels and the Finks, a decision you took whilst you were in custody and in fact you and your family have moved to a living arrangement where your address is unknown and that is to your credit.  You have continued to support your daughter, to run your business and to also support your parents. 

28I received a number of references from persons who either work for you or have known you for some period of time.  They speak of your hardworking nature.  One of them describes you as 'an inspiring leader', but also speak of your extremely strong work ethic and your devotion to your family and those references were all written by people who were made aware of the offending that has brought you here before this court.  Ms Ferrari wrote at some length in her report about the effect that your time in remand has had. 

29It was her view, having regard to earlier psychological reports which had been prepared in relation to earlier in court proceedings, that you had developed post-traumatic stress disorder, both in relation to your service in Cyprus, but also because of your previous exposure to traumatic incidents as a result of being a member of an outlaw motorcycle gang.  This, she found had been very much enlivened whilst you were in custody.  She made the point, which the court accepts, that although a person may not be, as she found you to be in the current situation, suffering from the effects of post-traumatic stress disorder such that you suffer a full blown post- traumatic stress disorder now, but that this condition is variable and subject to exacerbation according to outside influences.

30She noted that you had developed obsessive compulsive symptoms whilst in custody where you developed what she called 'germaphobia' leading to you forming a sort of terror about contracting disease in gaol resulting in excessive attention to bleaching your cell every day, excessive washing of your bedclothing, boiling your toothbrush and so forth.  I accept that this caused you particular difficulty whilst in custody.  I accept that your time is gaol was particularly difficult involving, first, the decision by the prison authorities to place you in a management unit for your own safety and, secondly, because you had to ensure the restrictive conditions brought about by the COVID pandemic. 

31The testing that Ms Ferrari conducted revealed a current situation of moderate depression, a generalised anxiety disorder, some symptoms of post-traumatic stress disorder and it was very much her view that those conditions would be exacerbated were you to be placed in custody once more, particularly given the reliance both your parents and your daughter have on you.  I am satisfied that the relevant Verdins limbs have application in your case - that is, that you suffer from conditions which mean that gaol would be more difficult for you than the ordinary prisoner not suffering from such conditions and that those conditions would likely be adversely affected by the service of a term of imprisonment.

32I accept that in the years since you being released from custody, you have behaved in a prosocial law-abiding way, and I accept that you have sufficient positive prospects of rehabilitation that any concern the court might have about any danger you present to the community are assuaged.  I am particularly reinforced in that view by the fact that you no longer belong to or associate with an outlaw motorcycle gang.  I accept, as I have said, that you served a particularly difficult period of time in custody.  I accept that the factors of Verdins have application in your case.  I accept that your plea of guilty, albeit made at a late stage, entitles you to moderation in a conventional and utilitarian sense.

33As would have been clear from my comments when I came on the Bench, I am not particularly impressed by the attitude you hold to your offending.  I note that you also employ a number of people who are dependent upon you and in all those circumstances am satisfied that you have served sufficient time for me to deal with you by way of a term of imprisonment combined with the imposition of a community correction order.  This was the sentence I indicated as being appropriate at the sentence indication hearing before me in February of this year. 

34I am bound by that indication, but even in the light of your unfortunate summary of your offending to the community corrections officer and a less than satisfactory, in my view, letter of apology, which I will not bother referring to in these sentencing remarks, you have reformed, you have removed yourself from the extremely concerning associations you had with both the Finks and the Hells Angels motorcycle club.  You have gone on to behave as I have also said in a prosocial, responsible way, taking on responsibility, not just for your parents and your daughter, but also those whom you now employ.

35In the circumstances, I am satisfied that the principle of general deterrence which requires a court to set a sentence which sends out a message to people in the community that if they offend in the way you offended, they can only expect a stern response by the courts - is sufficiently met by the imposition of a term of 12 months' imprisonment which I will declare as having been served by way of pre-sentence detention and the placement on a long and onerous, by that I mean difficult, community correction order.  I can only place you on this order Mr Genc with your consent.  So, sir, could you stand up whilst I explain the conditions of the order to you. 

36I should add that you have been to be suitable for placement on a community correction order.  The core conditions, the base conditions, of the order are these.  First, that within two working days of the making of this order, that is by Friday of this week, you must report to the community corrections office.  Whilst you are on the order, which will last for a period of four years, you must not commit any offence punishable by imprisonment.  What that means is that, sir, not that you have to commit another offence and be sent to gaol for it.  If you commit an offence for which you would be gaoled theoretically, like knocking off a box of matches from Woolworths, that will breach this order, you will be brought back in front of me, and I will proceed to re-sentence you on this offending.  Do you understand that?

37OFFENDER:  (Inaudible response.)

38Whilst you are on the order you may not leave Victoria without the permission of the community corrections office.  You must inform the community corrections office of any change of address or employment within 48 hours of making that change.  You must report to and receive visits from the community corrections office.  You must not attend upon the community corrections office under the influence of drugs or alcohol and you must obey all lawful directions of the community corrections office. 

39I am going to order special conditions.  The first are that you must in the four years complete 300 hours of unpaid community work.  You will also attend for assessment and treatment for mental health difficulties.  That relates to the mental health difficulties you continue to undergo which have been outlined in Ms Cydonia's report.  I am also going to order judicial monitoring.  That means you will be coming back before me at regular intervals, at which time I will be receiving a report from corrections about how you are abiding by the conditions and responding to the conditions and meeting the conditions of the community corrections office.  Does that make sense to you?

40OFFENDER:  (Inaudible response.)

41HER HONOUR:  Very well.  Are you prepared to enter this order?

42OFFENDER:  (Inaudible response.)

43HER HONOUR:  Thank you, have a seat.  Pursuant to s6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years.

44MR CAMERON:  As Your Honour pleases.

45MS RADOVIC:  As Your Honour pleases.

46HER HONOUR:  That's how serious it was.  Thank you.  All right, we'll just get the paperwork prepared for that.

47MR CAMERON:  Is there a proposed date for judicial monitoring, Your Honour?

48HER HONOUR:  All right.  Yes, sometimes I sort of think, right you know I want to get onto it straightaway, but very often I can set a date that's too early and actually nothing's been activated.  So the first judicial monitoring will be two months from today's date.

49MR CAMERON:  As Your Honour pleases.

50HER HONOUR:  Perhaps if we could get something please.  The first judicial monitoring will be at 9.30 on Tuesday 11 June this year.  Now you don't have to come to court for that.  I conduct those judicial monitorings usually by Zoom and it can be done that way.  All right?  Thank you.

51MR CAMERON:  Your Honour.

52HER HONOUR:  Whilst the documentation is being prepared, I wish to add this to my sentencing remarks.  In relation to the time that you spent in custody, Mr Genc, I also take into account the comments by His Honour the Chief Justice of the New South Wales Court of Criminal Appeal, where His Honour in the case of R v Howard [2001] NSWCCA 309, stated at paragraph 18, 'That every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. Additionally, any prisoner with a history of being on protection is potentially a marked man for whom the risk of reprisal is high'.

53I am referring to His Honour's remarks in that I accept that the conditions attached to your time on remand were particularly difficult and equated in one sense to a longer term of prison, basically in terms of the deprivation and confinement that you suffered in this time.  Hence, my determination that the period of time you have served and that I have ascribed to you, that 12 months, is sufficient for the purposes of the sentencing exercise I must undertake in relation to your case.  Thank you.

54MR CAMERON:  Thank you, Your Honour.

55MS RADOVIC:  As Your Honour pleases.

56HER HONOUR:  Yes, thank you, we'll get you to sign this Mr Genc.  All right, I'll see you in two months, Mr Genc.

57OFFENDER:  Thank you, Your Honour.

58HER HONOUR:  I thank counsel for their assistance.  Thank you, we'll stand down.

59MS RADOVIC:  As the court pleases.

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