Director of Public Prosecutions v Gultekin
[2013] VCC 1823
•11 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02314
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EBU GULTEKIN |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2013 | |
DATE OF SENTENCE: | 11 November 2013 | |
CASE MAY BE CITED AS: | DPP v. Gultekin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1823 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – guilty pleas – attempt to pervert the course of justice – false imprisonment – common assault – young offender – third appearance before County Court for offences of violence and dishonesty – considerations of Mills and Azzopardi – concurrency and cumulation with sentences already being served – new single non parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr L. Hartnett | Markotich Lawyers |
HIS HONOUR:
1 Ebu Gultekin, on the evening of 16 April 2012 you met a boy by the name of Nathan Stewart who was then 16 years of age, his older brother Daniel, and a friend of Daniel's, Jeremy Portelli, for the first time. The meeting took place in a backstreet in Meadow Heights and it was held to organise the sale by them and purchase by you of a stolen motorbike.
2 Earlier that evening Nathan Stewart, his brother Daniel, and Daniel's friend Jeremy had been driving around Brunswick when Jeremy and Daniel decided to steal a motorbike. Nathan had stayed in the car while his brother and friend snapped the steering lock and started the bike but then accepted their direction to ride the bike back following their car to a house in Meadow Heights. It was the two older youths, Daniel and Jeremy, who negotiated the sale of the bike and you were one of the people with whom that sale was negotiated. In the course of the negotiations you acknowledged that you knew the bike was stolen and at some stage and for no apparent reason you stabbed one of the two older youths in the hand.
3 The following day, a young man, a friend of yours, was arrested driving the stolen bike and charged with theft of it. He told his brother that you knew who had stolen the bike and asked that a message be conveyed to you to “follow them up.”
4 The following day, Nathan Stewart, his brother Daniel and some other friends were at the Meadow Heights Shopping Centre when a friend of yours, a Mr El-Ali, approached Nathan Stewart and told him that he, Nathan, should go with your friend because he and his friends wanted to talk to Nathan. Nathan refused and walked away but shortly after that a car driven by you and with Mr El-Ali in it, pulled up beside Nathan and his friends blocking their way. You grabbed Nathan by his arm and dragged him into the car. You threatened him with a silver flick knife. It appears it is the same knife that was used to stab one of the older youths in the hand the night before during the negotiations over the sale of the stolen motorbike.
5 You told Nathan that your mate had been locked up for the motorbike, that you were going to take him to the police station and tell the police that you did not know it was stolen. You told Nathan that he was going to take the rap for it. You ordered him at knifepoint to get into the car. You pushed him into the back seat of the car. Your friend Mr El-Ali and another co-offender a Mr Naggs were also in the car. It is this that gives rise to Charge 1 to which you have now pleaded guilty of false imprisonment.
6 A friend of Nathan Stewart's who was watching this unfold was then approached by you. You said to him, "What are you looking at?", and punched him in the face. It is this conduct that gives rise to Charge 2 to which you have pleaded guilty of common assault on Nathan Butcher.
7 You got into the car with your two co-offenders and Nathan Stewart, locked the doors and drove off. Nathan's brother, Daniel, and Nathan Butcher, the boy who had been punched in the face, both had phones on them and both immediately rang to report what had happened and to call for help. Daniel, the brother, rang the police while Nathan Butcher rang Nathan Stewart's mother.
8 Whilst you had Nathan Stewart in the car with you, you said and did various things that obviously added to the threatening and oppressive conduct that you were subjecting him to. You said, "I feel like taking this kid somewhere and tying him up". You stopped in a backstreet, got out of the car, walked around to where Nathan was sitting, opened the door, punched him in the face and then got into your seat and drove off again. You demanded he hand over his phone. You picked up another person so there were, at that stage, four on one with this 16 year old in the car. The fourth person who was picked up is the brother of the person who was initially arrested with the stolen bike and charged with theft of it. He said, "You'd better get my brother out of this shit". And you, during the course of the car ride, continued to tell Nathan Stewart that he was going to walk into the police station, say that he had stolen the bike, that he had sold it for $150, that the purchaser did not know that it was stolen, that he was to deny knowing you and that he was to tell the police to lock him up and let the friend go.
9 Eventually the car pulled up outside the Broadmeadows Police Station and you and the brother of the man who had been charged with theft of the bike walked Nathan Stewart into the police station and up to the counter. You stood either side of him whilst he told the police that he was the person who had stolen the motorbike and repeated the story he had been instructed to give. It is that conduct that gives rise to the most serious of the three charges to which you have pleaded guilty, of attempt to pervert the course of justice.
10 Nathan Stewart was arrested in the foyer of the police station and taken to an interview room. He very quickly, when asked, said he had not come to the police station of his own free will and described it as more like a kidnapping. Frightening as it was it was an obviously amateurish attempt because you and your co-offender were still in the foyer of the police station and the two others who had accompanied you there were still in the car outside the police station. All four of you were promptly arrested.
11 When questioned you maintained the version, that you had told Nathan Stewart to give to the police. You said that you had bought the bike legitimately; that you did not know it was stolen; that you had sold it to a mate; that when you were told that your mate's brother had been charged with theft of the bike you had said that you would see what you could do; that you just happened upon the person who had sold you the bike, told him what had happened. You said that all you said to him was, "Man up to it. Take the blame". You said that you brought Nathan to the police station but he got into the car of his own free will and he was willing to take the blame.
12 Police later searched the car that you had driven to the police station in. It was your mother's car and a silver flick knife matching the description that had been given by Nathan and matching the description of the one that had been wielded by you the night before, was found under the front passenger seat.
13 By your pleas of guilty to these charges you acknowledge that you lied when you were interviewed and that the accounts given by the young people that are the subject of the summary of facts the subject of the charges to which you have now pleaded guilty were truthful.
14 You are only 21 and this is the third time that you have come before this court for serious offences involving violence and dishonesty. You were serving a suspended sentence imposed in respect of your first County Court appearance at the time of the commission of these offences. You were released on bail on strict conditions in respect of these offences but within five months of your release you were charged with further offences. It was those further offences for which I sentenced you for in this court of 18 October this year. Those October sentences were for offences including three charges of theft, one of intentionally cause serious injury and one of attempted robbery. You were sentenced on those offences to a total effective sentence of five years and eight months imprisonment. On that occasion you admitted that those offences also breached the suspended sentence which had been imposed upon you in this court in October 2010. I dealt with you therefore for the breach of the suspended sentence as well. I restored the suspended sentence and directed that, of the 22 months which had originally been imposed and fully suspended, 11 months of that be served cumulatively upon the sentences for the other offending.
15 That resulted in a total effective sentence for the October sentencing offences and for the breach arising out of the restoration of the suspended sentence, of six years and seven months imprisonment. I directed that a minimum term of three years and four months be served by you before being eligible for parole.
16 At the time that you were sentenced by me in October you were still indicating you intended to plead not guilty to the charges for which I now come to sentence you. They have only recently been resolved and so it is that you come back before me to be sentenced for these three new charges of attempt to pervert the course of justice, common assault and false imprisonment.
17 Your history and circumstances were canvassed extensively by Ms Blair who appeared for you on the previous occasion before me and were detailed by me in my reasons for sentence on 18 October this year. Mr Hartnett, who appeared for you on this occasion, expressly adopted the matters relied upon by Ms Blair on the previous occasion and adopted too the manner in which I had dealt with them in my previous reasons for sentence. Mr Hartnett put, and I accept, that although this is separate offending it should be seen as part of a course of conduct which continued from the time of this offending through to the time of the offending which led to your sentencing on 18 October in respect to the other offences.
18 As I said in the course of this plea hearing, had I been sentencing you for these offences at the same time I dealt with you for the other offences I would have treated these as separate offences warranting separate punishment but warranting substantial concurrency with the sentences imposed in respect of the offences for which I passed sentence on 18 October. Although initially arguing for complete concurrency, Mr Hartnett ultimately acknowledged some cumulation was called for but having regard to your youth and the principles that I applied from Azzopardi[1] and Mills[2] on the previous occasion, there should be substantial concurrency between the sentences for these offences and the sentences that I imposed in October. Mr Livitsanos for the prosecution agreed that there should some cumulation but substantial concurrency having regard to your youth, the circumstances of these offences, the circumstances of the earlier offences and your general circumstances.
[1]Azzopardi v R (2001) 205 CLR 50.
[2]R v Mills [1998] 4 VR 235.
19 As a result I do not propose to repeat what was put to me or what I said on the previous occasion here. I adopt what was put on the last occasion and I adopt what I said in my previous reasons for sentence. This sentence therefore and these reasons should be read in conjunction with the reasons of 18 October 2013.
20 Your conduct on this occasion for which I am not sentencing you is thug like and cowardly. You stood over, assaulted and threatened two young people, considerably younger than you, in an attempt to force one of them, Nathan Stewart, to give false evidence in order to exonerate a friend who had, like you, lent himself to the illegal activity surrounding the stealing and on selling of the motorbike. There are some concerning parallels in the conduct for which I must sentence you here and the later conduct for which I have already sentenced you. On that occasion you stabbed, for no apparent reason, a young person, inflicting life threatening injuries on him and you treated the property of others in a cavalier fashion. Of course, I cannot take the subsequent conduct into account as if it were a previous conviction. What I can and do say is that, as subsequent events revealed, what I am sentencing you for today cannot be seen as an isolated act of wrongdoing.
21 The victim impact statements of Nathan Stewart and his mother make it clear what a terrifying ordeal it was for Nathan himself and for his mother as she received panicked phone calls telling her that her son had been abducted by unknown people and driven away who knows where, for a purpose they did not understand. The conduct concerning the false imprisonment and assault of the other Nathan is serious enough in itself. It is also serious because it is picking on somebody much younger than you and in circumstances where it is not just an age disparity but a maturity disparity. Perhaps also a physical size and strength disparity. That makes the five year age difference not of itself enough to indicate how serious this power, age and maturity or life experience imbalance was.
22 The attempt to pervert the course of justice is something which adds to the seriousness of the offending. To threaten a young person, to force them to make a false statement in order to attempt to exonerate you and your friends from the responsibility for their illegal conduct is simply inexcusable. As every case that deals with this offence says, acts of attempt to pervert the course of justice goes to the very heart of the administration of justice. Whilst it is accepted that people charged with offences do not have to answer questions and may not always tell the truth, the conduct of a person at risk of facing charges or facing charges in trying to force others to tell false stories by use of threats and actual violence is very serious indeed. It must be denounced, condemned and punished. Courts cannot sit by and watch people attempt to pervert the course of justice by trying to get people by threats and coercion, to give false evidence.
23 It is clear therefore that denunciation and deterrence – both general and specific – are significant sentencing considerations here. Your youth and the need to allow for your prospects for rehabilitation in the event you do choose to change your ways, are also important factors and I must properly adjust the sentence to give allowance for your prospects for rehabilitation if you choose to take advantage of the opportunities offered to you and the opportunities and advantages you have.
24 It is clear that no sentence other than one of imprisonment immediately served is appropriate having regard to the nature of the offences and having regard to your other circumstances, particularly the sentences that you are currently undergoing. But your youth and those matters personal to you which were canvassed on the last occasion, warrant, as they did on the last occasion, not only a moderation of the head sentences and the total effective sentence but a moderation in the non parole period and the allowance for a significant gap between the head sentence and the non parole period.
25 I also take into account your plea of guilty. It has saved the cost of a trial and it has also saved a considerable cost to your parents who, I understand, would have had to mortgage their house in order to raise funds for your defence of these charges.
26 On the material before me, the case against you is a very strong one but you had, until given time to reflect after my earlier sentence, indicated that you nonetheless wished to contest the charges. I am prepared in the circumstances to treat your pleas of guilty to these charges as a sign, perhaps only a glimmer, but nonetheless a sign of maturity or an acceptance of responsibility for your conduct and an acceptance of a responsibility for your parents. That is, the need to spare them or a consideration for sparing them the additional burden of sinking their money into a defence that was highly unlikely to succeed.
27 As I said last time, you are very lucky to have such family support, particularly from your mother. If you choose to avail yourself of it you will have something to sustain you during your term of imprisonment and to look forward to upon your release. The prospect of visits from and contact with your family whilst you are in custody and of continued support from them on your release is something that should provide you with support and stability to assist you in your return to freedom at the end of your sentence and to give you an incentive to look forward to living an adult offence-free life. I can only hope that you come to appreciate the support that you have received from your family, particularly your mother, and that you start to act in a way which will show that you can earn her respect and her regard and to turn your life around. She is in considerable need of support and you are the one who, if you stop offending, are best placed to be able to assist her given the circumstances of your father and the circumstances of your brother and I hope that as you mature you do see, as part of your life's responsibility, looking after your mother and rewarding the love and trust that she has put in you and the unstinting support she has given you despite the terrible turns you have taken in your life to date. I hope you reflect upon that and as something that you can have as something very positive to look forward to. Not a guilt but rather something positive to earn the regard and respect of your mother and to see it as part of your life responsibility to look after her and to give her something back after all that she has given you.
28 Can you now please stand.
29 On the three charges to which you have pleaded guilty you are convicted.
On the charge of false imprisonment you are sentenced to be imprisoned for a period of 18 months.
On the charge of common assault you are sentenced to be imprisoned for a period of six months.
On the charge of attempt to pervert the course of justice you are sentenced to be imprisoned for a period of two years and six months.
The sentence on Charge 3 is the base sentence. I direct that three months of the sentence for the false imprisonment and one month of the sentence for common assault be served cumulatively upon each other and upon the base sentence.
That makes a total effective sentence for these three charges of two years and ten months.
I direct that 12 months of this sentence be served cumulatively upon the sentences that you are currently undergoing.
30 I declare that you have spent seven days in pre-sentence detention in respect of these charges and direct that that be counted and reckoned as part of the sentence already served.
31 It is my intention to add a further eight months to the non parole period I fixed on the previous occasion. That is to fix a new single non parole period in respect of all offending of four years. My understanding after my discussion with counsel is that that is all that I am required to do to declare that the new single non parole period in respect of all offending is four years and that is that it is an additional eight months over and above the non parole period that I fixed on the last occasion and in respect to the other offending.
32 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of four years imprisonment in respect of these charges. I do not propose to make a non parole period s.6AAA declaration because it is just meaningless in the circumstances.
33 I have been asked to make a disposal order and I propose to do so. There has been no objection to the making of that order and that is in respect of the flick knife.
34 They are the only orders that are required to be pronounced?
35 MR LIVITSANOS: Yes Your Honour.
36 HER HONOUR: And do they reflect what I said I intended to do?
37 MR LIVITSANOS: They do to me.
38 HER HONOUR: Thank you. I've had considerable assistance from you, thank you, for this but on a previous occasion also from Corrections Prison Management Unit. So it may be prudent to check the terms of the order with them and if it needs to be brought back for correction - - -
39 MR LIVITSANOS: We'll contact Your Honour's associate if there's an issue.
40 HER HONOUR: All right. Thank you. Mr Gultekin, as I explained last time I must stay on the Bench until you're removed but again I'm prepared to stay here so your mother can speak to you before I actually direct that you be removed. Again I must remind you that although you can speak you're not allowed to touch. Mrs Gultekin, you can go and speak to your son if you want to but you mustn't touch him. You understand.
41 HER HONOUR: Can you now please remove Mr Gultekin.
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