Director of Public Prosecutions v Gul

[2023] VCC 2163

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00425

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSEYIN GUL

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JUDGE:	HIS HONOUR JUDGE HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2023
DATE OF SENTENCE:	28 September 2023
CASE MAY BE CITED AS:	DPP v Gul
MEDIUM NEUTRAL CITATION:	[2023] VCC 2163

REASONS FOR SENTENCE
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Subject:-CRIMINAL LAW-

Catchwords:              -Plea of guilty – one charge – blackmail – knife - substance abuse issues – pre-sentence assessment – suitability to a Community Corrections Order.

Legislation Cited:      

Cases Cited:

Sentence:                  Convicted and sentenced to 12 months’ imprisonment and a 20-month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D. Carolan	James Dowsley and Associates

HIS HONOUR:

1

Mr Gul, you have pleaded guilty to one charge of blackmail on

indictment N11018784.   The offence was committed on 15 May and 16 May 2022.

2

The offence is described in a prosecution opening dated 9 August 2023. That opening was tendered during a sentence indication hearing that took place before me on 11 August 2023. I granted your application for a sentence indication and gave you an indication that if you pleaded guilty, I would sentence you to a period of 12 months imprisonment in combination with a Community Corrections order of no more than two years duration. You accepted that indication and entered a plea of guilty to the charge on 15 August 2023. The matter was adjourned until

28 September 2023 for further plea and sentence as Corrections Victoria indicated that needed that period of time to provide an ‘Extended Pre-Sentence Assessment’. I have now received that report and will refer to its contents later in these reasons.

3The opening was an agreed statement of the circumstances of your offending.[1]  I will briefly recount those circumstances.

[1] It was made plain during the sentence indication hearing that the opening required two amendments. Paragraph 31 stated the pre-sentence detention as 269 days when the correct period was in fact 276 days. The chronology also incorrectly described the accused as being remanded in custody on 20 May 2022 when in fact he was charged on that day and released on bail; this error is repeated in the opening for plea dated 27 September 2023.

4On 29 April 2022, the victim, Rudolph Norman,[2] received Facebook messages from you, the tenor of which was you asking to meet up with Mr Norman. The victim ignored your messages and blocked you on Facebook.

[2] A Pseudonym.

5On Sunday 15 May 2022, you went to the victim’s home and knocked on his door. The victim opened the door but did not recognise you. You asked the victim whether he recognised you and told the victim he had been blocking your messages. You asked him to speak with you and the victim agreed and walked outside his home with you. At this time, the victim's fiancé was in the house.

6You accused the victim of having, years previously, sold fake drugs to you. The victim responded that he did not know what you were talking about. You then started talking about how the money was real, but the drugs were fake, and you grabbed the victim by the shirt. The victim managed to push you away and you then stood back and pulled out a small flick knife extending the blade towards the victim. You told the victim you knew where he lives, and you found him easily. You were standing about two to three metres from the victim.

7At this time a neighbour, Mr Isaac Barber,[3] saw what was happening and asked the victim was he okay. The victim responded ‘No, not really’.  Mr Barber noticed you appeared aggressive and angry towards the victim, and he saw the knife that he described as being about 13 centimetres in length.

8You put the knife away. Both Mr Barber and the victim were scared that you might stab them. Mr Barber heard you telling the victim that he owed you $6000 for bad drugs that had been sold to you, 12 years ago. Mr Barber managed to get the attention of his partner and told her to call the police.

9Mr Barber told you that the police had been called and it was best that you go. You walked across the road. Mr Barber then checked on the victim and observed him to be shaken and scared. Mr Barber then returned to his home and spoke to the police. He observed you to be still pacing up and down the street.

10Police asked Mr Barber where you were, and Mr Barber walked out of the house to the end of his driveway. He saw you on the opposite side of the road and you then ran towards Mr Barber who then ran back inside his home and locked the door. Mr Barber thought you looked drug affected and aggressive.

11You left the area about 10 minutes later. When police attended you could not be located.

12The following day, you sent further Facebook messages to victim. The messages stated to the victim, in effect, that he owed you $6000 and requested he transfer the money into your account. You provided in the messages your banking details. During that evening, you sent a number of messages requesting payment of the money. You suggested $1000 could be paid fortnightly and part of one of your messages stated:

‘Don’t be stupid I’ve been very nice so far.  It will only get extremely worse… just do the right thing and get back to your nice life…’

13As a result of this conduct, police executed a warrant at your premises on 20 May 2022. Police located two folding knives near a small table beside the front door, and your mobile telephone. You complied with a police request to provide your passcode to the phone. A record of interview was then conducted with you.

14You made admissions to attending at the victim’s home and asking him for money but denied that you produced a knife. You described the victim in derogatory terms. You said, ‘Yeah, I went to ask for money, he didn’t give it, and then the neighbour came out and I couldn’t get it. End of story’.

15You confirmed the bank details were your account details.

[3] A Pseudonym.

Victim Impact

16The victim felt threatened during this incident. It left him in fear for his partner’s safety. During the sentence indication hearing, I was told that although a victim impact statement had not been prepared, the victim had conveyed to the prosecution that his general feeling of safety in his home had been impacted. He had a feeling that he now needed to be looking over his shoulder. He felt it was necessary to walk his sister to her car when she left his home and he felt it necessary to install security cameras. No doubt this would have involved some expense.

Objective Gravity of the offending

17

Mr Gul, I indicated during the sentence indication hearing that I regard this as serious criminal conduct. It was threatening a person in circumstances where you indicated you knew where he lived; it involved producing a knife in a threatening manner; and it extended over two days with you indicating in your messages on the second day that your conduct had so far been ‘nice’ and was going to get ‘extremely worse’. The offence of blackmail carries a maximum penalty of

15 years' imprisonment.

18I have no doubt this would have caused the victim a great deal of concern and been frightening and unsettling. Your conduct must be denounced in the strongest terms. You should be under no illusion that making threats to people implying that their personal safety is at risk if they do not comply with your demands is serious criminal conduct.

19Your counsel submitted that the gravity of this offending was ‘not grave’ and that you ‘simply produced the knife and subsequently put it away.’  I indicted that I rejected that submission. The agreed factual basis upon which you were to be sentenced was that you extended the blade towards the victim and accompanied this action with saying you knew where the victim lived. Your demeanour at the time was described by Mr Barber as aggressive.

Personal circumstances

20I turn to your personal circumstances. Your background is described in a psychological report prepared by Tim Watson Munroe in 2015[4], and your counsel’s written submissions.[5]

[4] Exhibit 3.

[5] Exhibit 1.

21You are now aged 41 and were born in Sydney. You family is of Turkish origin. Your family moved to Melbourne when you were young, and you attended local schools in the Western suburbs. When you were approximately 18 years old, you were deeply impacted by the death of your 14-year-old younger brother, who died in a motor vehicle accident.

22You managed to complete your VCE and since then you have been employed in the security industry, trucking industry, traffic control, and you have also spent time in professional wrestling.

23Unfortunately, you commenced using illicit drugs such as MDMA and methylamphetamine in your mid 20’s, and you had an addiction by the age of 26.

24You have prior convictions dating back to 2009 for a variety of criminal offences such as unlawful assault, possessing controlled weapons, motor traffic and firearms offences, but your offending became more serious in 2015.

25In 2015, you faced drug trafficking charges to which you pleaded guilty, and you contested rape and other associated offences unsuccessfully at trial. While awaiting your plea to the drug trafficking charges, you underwent impatient treatment in a residential rehabilitation facility for a period of 162 days. You managed to remain drug free while you were a resident in the program, however, it is apparent from the offending before me that you have not been able to maintain abstinence when back in the community.

26

After being found guilty at your trial, you were sentenced to five years and nine months imprisonment in respect of the rape charge and associated offences. Part of this sentence was served cumulatively with the sentence for the drug charges. You were not granted parole and ended up being released from custody on

16 April 2022.

27

I was told during your plea hearing that it was to your credit that when released, after an extensive period in custody, you sought treatment from a psychiatrist,

Dr Fiona Wood. Tendered on your behalf was a letter from Dr Wood[6] that states that you suffer from attention deficit hyperactivity disorder (ADHD), autism spectrum disorder (ASD), post-traumatic stress disorder (PTSD), as well as major depression. She details several medicines that she prescribed to in in 2022 in order to treat these conditions.

[6] Exhibit 2.

28

Despite you seeking assistance from Dr Wood, you committed the offending before me in May 2022 and I was informed by your counsel that you were remanded on other drug related charges on 9 September 2022. You remained in custody since that time but received a 60-day sentence on the other unrelated charges. It was agreed between the parties that when you came before me on

11 August 2023 you had served 276 days of pre-sentence detention in respect of this blackmail charge.

Submissions of the parties

29I was informed during your sentence indication hearing that your parents are now elderly and retired and you are motivated upon your release from custody to assist and care for them. Your counsel submitted that your plea of guilty attracts additional utilitarian benefit given that it is entered during the pandemic. I accept this submission.

30Your counsel also submitted that despite the chronology of your offending, you have never been sentenced to a ‘therapeutic disposition’ such as a CCO and a combination sentence would ultimately be the best way of fostering your rehabilitation and protecting the community. It was pointed out that you did in 2015 commit yourself to an inpatient program and sought help from Dr Wood when released from custody. It was pointed out that you had just served your longest period of custody. You have had a history of trauma relating to your brother’s untimely death and your attendance upon Dr Wood demonstrated that you were interested in combatting your drug problems.  It was submitted that your offending was not sophisticated and the time in pre-sentence detention was sufficient punishment if combined with a CCO disposition mandating drug treatment.

31The prosecution emphasised the seriousness of your offending. It was pointed out that you offended within a month of your release, having served a period of gaol in excess of six years. It was submitted your prospects of rehabilitation must be viewed as ‘guarded’ to say the least, and principles of general deterrence and protection of the community were important, particularly as the circumstances of the crime suggested you were travelling around on public transport armed with a knife and likely drug affected.

32Ultimately, the prosecution submitted that the time served in pre-sentence detention did not adequately reflect all the purposes of sentencing applicable to your case. I was referred to a number of cases as being useful comparisons. I have read those cases and while they have provided some assistance, it must be borne in mind that such cases are not precedents, and each case must be judged according to its own particular circumstances.

Sentence

33As I ready stated, I was persuaded that a combination sentence was appropriate in your case. I have now received the benefit of a comprehensive pre-sentence assessment and I will make that assessment Exhibit G on your plea.

34

The assessment is comprehensive, and I do not intend to make extensive references to its contents. I have read it carefully. Mr Gul, the assessment is frank in stating that your rehabilitative prosects are difficult to ascertain. On the one hand you do present positively with some level of insight, but on the other hand, the Prison Incident Management System records a number of incidents of

non-compliance over your years in custody. The report does state that you present with ‘some level of treatment readiness.’

35Mr Gul, there are a number of purposes of sentencing. The punishment imposed upon you must be just in all the circumstances and deter you and others from committing similar crimes. You have a bad criminal history. You are not to be punished for past crimes, but your history is relevant to the assessment of your moral culpability and your prospects of rehabilitation.

36You counsel has made further submissions today that the sentence that I indicated at the sentence indication hearing of 12 months should be reduced to 11 months. Considering all the matters that I need to take into account, I am not persuaded that it is a proper exercise of the sentencing discretions to reduce the sentence to 11 months. Although, as I have mentioned, you are not to be punished for past crimes, the fact that you committed this offence so soon after serving a long sentence of imprisonment does bear on the assessment of your moral culpability for this offending and I regard that moral culpability as high and there is a need for both specific and general deterrence in relation to the commission of this offence. 

37If possible, a sentence should promote your rehabilitation, and if you are rehabilitated, that is the best way of protecting the community. The sentence I am imposing upon you means you must serve 12 months imprisonment for this offending before your release on a Community Corrections Order. You will be released from custody very soon given the period of your pre-sentence detention. You should understand that the purpose of the CCO is to try and assist you in your efforts to stop using illicit drugs. If you go back to using drugs, no doubt you will end up breaching this order and almost certainly have return to gaol.

38You have not had a CCO disposition before and it is up to you to try and take advantage of this opportunity. Your history of imprisonment is such that you have not recently been found eligible for parole. It has been put to me that you are genuinely motivated to change the course of your life by addressing your drug problem. I am hopeful that this sentence will assist you in that goal and monitor your compliance in not reoffending.

39Mr Gul, on the charge of blackmail, you are convicted and sentenced to 12 months gaol and a Community Corrections Order of 20 months duration.

40Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of 324 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.

41

The Community Corrections Order commences on the day you are released from custody. You must attend the Coolaroo Justice Service Centre 5/1640 Pascoe

Vale Road Coolaroo within two working days of your release from custody.

42In addition to the normal core conditions of the order, the following special conditions are imposed on the CCO:

·        Section 48 E – Supervision;

·        Section 48(D) (3) (e) Treatment regarding mental health;

·        Section 48 D (3) (a) Drug treatment including testing;

·        Section 48 D (3) (f) Treatment regarding Offending Behaviour Programs:

·        Section 48 K – Judicial monitoring.

·        In relation to the judicial monitoring condition, I declare that the first judicial monitoring date before me be at 9.30 am on Wednesday 20 December 2023.

43Pursuant to s6AAA of the Sentencing Act 1991(Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of two years and 10 months’ imprisonment and declared that you serve two years and four months before being eligible for parole.

44I also make the disposal order sought by the Crown in the terms of that order lodged with the Court.

45Mr Gul, normally when a Community Corrections Order is imposed, the offender is in court and is asked to sign the order.  The law allows now for the offender to consent to the order verbally once the order has been explained to him.  The normal core conditions of an order, these are mandatory conditions; are that you not commit another offence for which you could be imprisoned during the time that the order is in force; that you comply with prescribed regulations; that you report to and receive visits from the Secretary or delegate Community Corrections; that you report to Community Corrections within two clear working days of the order starting; and that you must let a Community Corrections officer know within two clear working days or you changing your address or job; you must not leave Victoria without first getting permission to do so from the Secretary or delegate; you must obey all lawful instructions from and directions of the Secretary. 

46The other conditions I have already read out to you in relation to basically if they ask you to receive drug counselling or ask you to do urine analysis or ask you to participate in programs that are related to your mental health or related to underlying reasons as to why you've committed offences, you must comply with that.  Judicial monitoring involves you coming back before me so that I can check the progress of the order.  I've made no order in relation to you performing unpaid community work.  In essence, what this order is going to require you to do is to do your best not to resort to illicit drugs and to keep appointments when requested and undertake programs, and it lasts for 20 months from the date of your release. 

47If you fail to do that, you can be breached for fail to observe conditions and also if you commit an offence that's punishable by jail during the period of the 20 months, you can be breached on that basis, and then you can be resentenced on the original blackmail offence, or you can be charged and found guilty of breaching the order which itself is an offence that carries up to a maximum of three months' imprisonment.  Do you have any questions about the sentence that's being imposed upon you because I am about to ask you whether you consent to this community order being imposed upon you?

48OFFENDER:  Ah, I have no questions and I consent.

49HIS HONOUR:  Do you consent to the order in the terms that I've expressed?

50OFFENDER:  Yes.

51HIS HONOUR:  Are there any further orders that I need to make?

52COUNSEL:  No, Your Honour.

53HIS HONOUR:  All right.  Mr Gul, look you've got a bad history, let's really hope that you are able to turn your life around.  Generally, with Corrections, they give you chances when you're having difficulties and lapsing, it gets problematic when you don't disclose the problems in your life, and you tend to go off the rails.  It's a matter for you, but when you get breached, they tend to have all the records.  I'd suggest you keep a diary, and you make notes, and if you're missing appointments for good reasons, ring them up beforehand.  It always goes better if you try and tell them about your problems.  But I can only hope that when I see you in December, the report is positive, that you're taking care of your parents.  It's up to you obviously when you feel up to trying to get a job or matters of that nature, but hopefully you can turn your life around.  Can I thank the parties for their assistance, and we'll adjourn the court.

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