Director of Public Prosecutions v Gurbuz

[2024] VCC 993

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR 23-02164

DIRECTOR OF PUBLIC PROSECUTIONS

V

NACIYE GURBUZ

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF SENTENCE:	1 July 2024
CASE MAY BE CITED AS:	DPP v Gurbuz
MEDIUM NEUTRAL CITATION:	[2024] VCC 993

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Attempt to pervert the course of justice

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  Community Correction Order for a period of 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	Office of Public Prosecutions
For the Accused	Ms H. Ticku	Emma Turnbull Lawyers

HER HONOUR:

1

Naciye Gurbuz, you have pleaded guilty on indictment to a single charge of attempting to pervert the course of justice between 24 September 2022 and

5 October 2022.

2This is a charge which carries a maximum penalty of 25 years' imprisonment, reflective of how seriously Parliament regards this offence.

3The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening on Plea' dated 16 May 2024.  This is an agreed document and reflects your admission of each of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

4I have had recourse to the full document, but essentially your offending involves you contacting or attempting to contact Nehir Sancar[1] and Yilmaz Sancar[2] at the request of your son, Ayturk Gurbuz. At that time your son, Ayturk Gurbuz, was remanded in custody and charged with indictable offences relating to his former partner, Nezihe Sancar.[3]

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

5Nehir Sancar was the mother of Nezihe Sancar and Yilmaz Sancar was her cousin. In a phone call from prison on 24 September 2022, Ayturk asked you to contact Nehir Sancar and you agreed. He also asked you to contact Yilmaz Sancar. Ayturk said Nezihe can 'have everything' in reference to a house, furniture and deposit, and for you 'to make sure to say all of this'. You said you would find Yilmaz and call Nehir. You did call each of those persons that day. It does not appear that you were able to actually speak with Nehir.

6In your conversation with Yilmaz, you told him that Ayturk was in custody, asked why Nezihe was doing this and asked him to call Nezihe and tell her to 'take the charges back' and that they did not want any money for the house.

7Ayturk called you from prison on 25 September 2022. You told him that you had spoken to Yilmaz and that Yilmaz would speak to Nezihe on his behalf.  You told Ayturk that you had told Yilmaz to tell Nezihe to keep the house, furniture, everything, and all that was wanted was for her to withdraw her complaint. You told Ayturk that you would contact Nehir again and Yilmaz’s father so that Nezihe would withdraw her complaint against Ayturk.

8Yilmaz did call Nezihe after you had called him twice.

9In one call to Nezihe, Yilmaz told her that you had been in contact and that he was asked by you to pass on a message that Ayturk will sign a binding agreement on favourable terms to Nezihe if she withdraws her statement to police. He told you that she said no, and that Ayturk 'needs to pay for what he has done'.

10Ayturk called you again from prison on 1 October 2022 and asked if you had heard from Nezihe or Nehir. You told him that you could not speak with Nezihe and that Nehir would not answer your calls. You told him that you were going to call Yilmaz. Ayturk commented 'if only we could talk to Nezihe. She has to withdraw her complaint'.  He asked you to talk to 'her' aunt and you said 'don't worry about her, I'll find someone to talk to'. Your son repeated that Nezihe has to withdraw her complaint and that he can pay her if she does that. You told him that you were going to see her uncle and going to call her mother again.

11You did call Yilmaz that day.

12You and Ayturk spoke again on 3 October 2022. He asked you to send Yilmaz a message to ask Yilmaz if he had spoken to Nezihe. You told Ayturk that you had called Yilmaz yesterday but that he did not answer.

13You sent Yilmaz a message later that day, commenting that he had said he would call you but did not.

14When you spoke with Ayturk on 4 October 2022, you told him that Yilmaz had not returned your call or your message.

15Yilmaz did call you on 5 October 2022.

16You were arrested by police on 26 April 2023 and answered 'no comment’ to questions asked of you as is your right.

Offence gravity

17This is serious offending.

18The offence of attempting to pervert the course of justice embraces a wide spectrum of criminal conduct. It is an offence that strikes at the heart of the administration of justice and normally requires that a term of imprisonment be imposed. 

19Justice of Appeal Charles in the Victorian Court of Appeal quoted with approval a sentencing judge in the case of Healy (unreported, Victorian Court of Appeal, 4 August 1997), who observed:

'The administration of justice depends on the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.'

20The allegations against Ayturk are yet to be determined at trial but do allege serious sexual offending and offences of family violence said to be committed against Nezihe Sancar. Obviously it would have been of great benefit to Ayturk if Nezihe could have been persuaded, with the lure of financial benefit, to withdraw her evidence. The amount you sought to offer to Nezihe Sancar in exchange for her withdrawing her complaint was substantial.

21Your offending was designed to avoid the prosecution of your son continuing. You were prepared to play that role for a period of some 10 days and were actively involved in making or trying to make direct contact on more than one occasion with those that you thought could assist you with that aim.

22I note that there were no threats of violence involved and that this is not an offence at the higher end for a charge of attempting to pervert the course of justice. An assessment of the gravity of your offending is part of the reason why you are not facing an immediate term of imprisonment

23It is concerning that you were prepared to place your son's needs and your own needs over the proper administration of justice. In so doing, you paid Nezihe Sancar no regard.

24General deterrence and denunciation are important sentencing considerations.

Plea of guilty

25The Sentencing Act 1991 obliges me to consider when you entered your guilty plea.

26Documents filed by the Crown set out the procedural history.

27You were interviewed in April of 2023 but not charged until August of 2023.

28

Your matter resolved on 13 May 2024 after a case assessment hearing held on

6 May 2024.  Whilst not an early plea, the matter resolved when it became apparent that Yilmaz Sancar had provided a statement to the prosecution and would have been called to give evidence detailing your communications with him at the relevant time.

29Your plea has saved the time and expense of contested trial proceedings and has utilitarian value.

30It is not clear to me that yours is a plea borne of remorse but you have taken responsibility for your offending.

31These factors will be taken into account in your favour.

Personal circumstances

32You are now aged 63 years and were born in Turkey.

33You have three siblings and are the second youngest and the only female.

34You grew up in a working-class family. Your father would work whilst your mother was responsible for the house and children. You obtained the equivalent of a year 9 education.

35

You moved to Australia when you were 17 years of age. You had married at

16 years. You had your first child fairly quickly. Your husband worked to support the family and, like your own mother, you were responsible for taking care of the house and your three children. This left you somewhat isolated.

36At 20, you began working in a factory where you would stitch and sew clothes.

37You have continued to look after your family and done volunteer work at your local mosque.

38You have been married for some 47 years and you describe it as a happy and supportive one. You are a grandmother to seven grandchildren and reside in Broadmeadows.

39Your husband and granddaughter were present for your plea hearing and for your sentencing.

Prospects for rehabilitation

40You have no prior criminal history nor any allegations of further offending.  I accept that there has been some sanction for you being involved in legal proceedings for over a year.

41

Suna Soykuvvet has provided a character reference dated 20 June 2024.

Ms Soykuvvet has known you for some 40 years and has found you to be a supportive friend.   She describes you as reliable and dependable and with a strong work ethic. Ms Soykuvvet believes that your offending is out of character and she says that you have expressed your remorse and regret to her. You do some work at her café.

42I accept that you are unlikely to reoffend and that you have good prospects for rehabilitation. There is limited need for weight to attach to the principles of specific deterrence or to the protection of the community.

Sentencing submissions

43The Crown contend that the proper consideration of the gravity of your offending and current sentencing practices require the recording of a conviction and that you be placed on a Community Correction Order. I have had regard to comparable cases referenced by the Crown.

44Tendered on your behalf is a Patient Health Summary dated 20 May 2024 which confirms that you suffer hypertension and that you are prescribed medication. Otherwise, you report that you also suffer hip pain, back pain, shoulder pain and arthritis. You are prescribed insulin for diabetes and pain killers. The patient summary did not go into detail and did not provide any basis not to consider whether or not you would be able to participate in a Correction Order.

45Your counsel contends that bearing in mind your lack of criminal history, the offending being committed due to your loyalty to your son and your low risk of reoffending then all relevant sentencing considerations can be accommodated in the imposition of a financial penalty without the recording of a conviction.

46Your financial circumstances as outlined to me were quite parlous. It is therefore submitted to be a burdensome punishment.

47Section 8 of the Sentencing Act sets out the criteria to be considered in whether to record or not to record a conviction. I am required to have regard to the nature of the offence, your character and past history, and the impact of recording a conviction on your economic or social wellbeing or on your employment prospects. 

48This is a balancing exercise. I have taken these factors into account. My attention is not drawn to any impact on your economic wellbeing. You have concerns about your social wellbeing if you had to answer awkward questions. Whilst character is in your favour, your offending is serious and the need for general deterrence and denunciation is such that I am of the view that a conviction is required.

49I have had you assessed as to your suitability for a Community Correction Order.  You were assessed as suitable for a Community Correction Order with a work component only.  

Sentencing

50The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

51I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that offenders are rehabilitated and are reintegrated into society.

52I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offence to which you have pleaded guilty and the principle of proportionality.

53On the single charge of attempting to pervert the course of justice, you are convicted and sentenced to a Community Correction Order of 12 months' duration. During that time, you are to perform 75 hours of community work.

54In addition to the condition that I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences during the 12-month period which could be punished by imprisonment. You must report within two working days to your nearest Corrections office. You are also required to advise your Corrections office of any change of address of where you are living or working and must do so within two clear working days of any change. It is a term of all Community Correction Orders that you must submit to visits as directed and obey all the instructions and directions of a Corrections officer. You are also not able to leave the state of Victoria without the prior permission of your supervising Corrections office.

55In essence, the Order can be breached if you do not comply with it in terms of the conditions or reoffend with an offence punishable by imprisonment whilst it is in place. If you do so, you will have to appear before me for contravening the Order and I may have to resentence you on the original charge, as well as a separate charge of contravening a Correction Order.

56I can only place you on a Correction Order if you are prepared to sign a document to that effect. I will stand down temporarily so your lawyer can take you through that document and you can determine whether or not you will sign it. Thank you.

(At a later stage.)

57Thank you, Ms Ticku, I can see that document has been signed.

58MS TICKU:  Yes, Your Honour.

59HER HONOUR:  I have now signed it as well. I thank you for all your assistance in this matter. In the nicest possible way, I hope I do not see your client again. 
Mr Goetz, as always, I thank for your assistance.

60MR GOETZ:  Thank you, Your Honour.

61HER HONOUR:  And thank you to you as well, Mr Interpreter.

62INTERPRETER:  Thank you, Your Honour.

63HER HONOUR:  That completes the matter. Thank you. ---