Director of Public Prosecutions v Gurocek

[2014] VCC 440

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02260

DIRECTOR OF PUBLIC PROSECUTIONS

v

MESUT GUROCEK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 March 2014
CASE MAY BE CITED AS:	DPP v Gurocek
MEDIUM NEUTRAL CITATION:	[2014] VCC 440

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Moore
For the Offender	Mr K Oldis

HIS HONOUR: 

1Mesut Gurocek, you have pleaded guilty to one charge of kidnapping, one charge of theft, one charge of intentionally causing injury and one charge of prohibited person in possession of a firearm, that being a sawn off shotgun.  Those crimes carry maximum penalties of 25 years, ten years, ten years, and ten years, respectively.

2You are still only 28 years of age and you pleaded guilty during the course of a contested committal.  You, through your counsel, expressed remorse though I am somewhat dubious about that, but in any event you must get the utilitarian benefit of your plea of guilty and that must be a demonstrable one.

3You do have a number of prior convictions, most of them going back to when you were about 19 or 20.  You have convictions for assault and crimes of violence including criminal damage.

4The circumstances of this offending have been outlined in the Crown opening and also added to by your counsel.  The incident from which all this arises started at Kiewa Crescent, in Dallas.  In the early afternoon of 12 May 2013 you went to premises where a Mr Pellevan was with friends, or helping out, or something along those lines.  He was involved in an acrimonious separation from his wife.  You and another man, who you have not named, demanded that the ultimate victim accompany you in his van.  He was instructed to drive to his former matrimonial home in Meadow Heights.  While he drove you sat in the passenger seat pointing a shortened double barrel shotgun at him.  I have been told that was given to you shortly prior to all this and it was not part of any plan.  Whether that is true or not I have got no idea but I sentence on the basis that it is simple enough that you had him, I would have no doubt, in terror with that weapon.

5He pointed out to you that there was an intervention order which stopped him from going to the property and the Crown opening says that you at that point threatened to kill him.  Shortly after that the van and the car, which was being driven by your accomplice, stopped and the victim was put in to the back of the van.  At the address in Meadow Heights he was taken to the garage.  He was tied and gagged and threatened with torture.  He was struck with a metal bar and a hammer and had his arms cut with a knife.

6This ordeal was punctuated by repeated demands for money and he was forced to ask his brother and an associate for $10,000 by telephone.  He said that his wife was present during much of this but she has not been charged and I do not take that any further.  It was explained to me during the course of the plea that all of this was about gold which had been given at your sister's wedding.  Your phone call apparently enabled that gold to be transferred from one town in Turkey to another and once that had been accomplished your mission was over and the kidnapping stopped.  Again, I am not going to go in to great detail about any of that.  What happened was that the victim was left alone in the garage and was able to make good his escape.

7There would appear to be then some disagreement as to what took place, but in any event he had the gun and as he was leaving it, on the Crown opening, accidentally discharged.  He put the weapon in a park and waved down a passing motorist.  Police attended and found the weapon where he had left it.  Your version of events was that he was going to shoot you and you threw a chair at him.  I must admit reading the Crown opening it struck me as odd, but what really happened is anybody's guess.

8After the complaint you were intercepted with another person and that person was not charged.  You were interviewed by police and admitted to being at the premises but said it had simply been a fight.  Because there is a charge of injury I note that the victim sustained a laceration and swelling on top of his head, a bruised right arm and left leg, and two small lacerations to the left arm.  They are the injuries for which I sentence.

9There is a victim impact statement before me which I have read and obviously take in to account.  That victim impact statement describes the terror and ongoing psychological trauma that the kidnapping has caused and I have no doubt that that is correct.

10Crimes such as this have to be regarded as serious and call for the application of general and specific deterrence as well as denunciation and appropriate punishment.  A significant gaol sentence is inevitable and your experienced counsel did not demur from that proposition.

11I then look to matters personal to you.  Tendered on your behalf was a report from Mr Cruitsen, a member of the psychological profession.  I have read that report in detail and I am not sure that it takes me all that far.  He said in his opening paragraph that you are a most unusual man.  He said you offer regret but little apology for your role in the attack on your former brother in law, that you present as an independent socially defined individual who readily resorts to violence if he considers that it is justified.  I am quoting, obviously:

12"He is equally blunt about his basic values which are not directly anti-social but need to be seen in the context of his own functioning."

13He goes through the matters personal to you.  You do not have any matters relating to Verdins applicable to you, you have no mental disorder, you are obviously an intelligent man, and you are obviously well aware of the consequences of what you do.  I suppose that the main things that come from that report and also what were succinctly put on your behalf by your counsel are that you are a person who came to Australia at a very young age and grew up in a Turkish family.  None of your siblings have been in trouble with the police, though your sister probably got pretty close to it I suspect.

14In any event you started working at the age of 16, you have been a concreter, and you have, as I understand it, before being incarcerated, created your own concreting business.

15Over the years you have had serious difficulties with gambling and you would appear to have resorted, on occasion, to quite heavy use of methamphetamine.  That may have been occurring in a time leading up to this.  Your alcohol abuse in the past has been problematic.

16The prospects of you rehabilitating are simply up to you, I think.  The risk of you re-offending is described in the report as moderate, but bearing in mind what you told Mr Cruitsen I think it is probably more than that.  If you are prepared to behave in this way when it suits your purposes, whether they be morally justified in your own mind or not, you will continue to get gaol sentences of increasing length.

17In this particular situation it is one where this will be your first time on parole and in those circumstances I have decided to give you an extra opportunity for parole, though these days that is pretty problematic.  I give you the opportunity, at least, of re-establishing your life within a reasonable period of time.

18In one sense it is a simple sentencing matter and other cases were shown to me which, I think basically counsel agreed, the matter of Cini was probably the closest, though no two, of course, are the same.  He faced a charge of intentionally cause serious, you had a sawn off shotgun.  I think yours, Mr Moore for the Crown conceded, was a slightly lesser matter.  It still remains a serious one.

19I think the situation is, from your point of view Mr Gurocek, that you know what you are doing.  If you pulled that trigger in that car just in a moment you would be doing 20 years on the bottom.  You know what the story is, you know what the odds are, I cannot do much for you I think.

20In any event, on Charge 1, three years.

21On Charge 2, one month, and your licensed to drive a motor vehicle is suspended for one month.

22On Charge 3, nine months.

23On Charge 4, 12 months.

24I am very aware of the concept of double punishment in a situation such as this but the victim was unduly physical treated and there has to be some more, in my view, for the possession of the firearm.  Accordingly, three months of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective head sentence of three years and six months.

25In all the circumstances of the matter, and bearing in mind that you are, I think, an intelligent person, I direct that you serve a minimum term of one year and nine months before becoming eligible for parole.  I direct that 313 days be reckoned as having been served under this sentence.  So that you understand the benefit of your having pleaded guilty and not turned this in to a jury trial, I say that pursuant to s.6AAA, but for your plea of guilty you would have been sentenced to be imprisoned for five years and three months with a minimum term of three years.

26MR MOORE:  If Your Honour pleases, you have already made those orders.

27HIS HONOUR:  I have already made all the other orders, there is nothing else I need to do.

28MR MOORE:  No Your Honour.

29HIS HONOUR:  Thanks gentlemen.

30MR MOORE:  Thank you Your Honour.

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