Director of Public Prosecutions v Huseyin

[2023] VCC 759

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00353

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALKAN HUSEYIN

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JUDGE:	His Honour Judge Mullaly
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2023 and 8 May 2023
DATE OF SENTENCE:	8 May 2023
CASE MAY BE CITED AS:	DPP v Huseyin
MEDIUM NEUTRAL CITATION:	[2023] VCC 759

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:      Aggravated Burglary – Plea – COVID times – Community Corrections Order - Punishment – Rehabilitation.

Legislation Cited:     Sentencing Act 1991 (Vic) s 6AAA.

Cases Cited:      Chenhall v The Queen [2021] VSCA 175; Worboyes v The Queen [2021] VSCA 169.

Sentence:                 3 months imprisonment and a 12 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Turner	Office of Public Prosecutions
For the Accused	Mr A. Malik	James Dowlsey & Associates

HIS HONOUR:

1Alkan Huseyin, on 18 April 2023 I indicated to you that should you plead guilty to a charge of aggravated burglary, I would impose a combined sentence of three months’ imprisonment and a 12-month Community Corrections Order.  You accepted that indication and pleaded guilty on arraignment today.  You can be seated Mr Huseyin, please.

2Although the crime of aggravated burglary is inherently serious, it can be committed in very different circumstances, both elevating and lowering the gravity of moral culpability of the offender.  This example of aggravated burglary and in particular your role in it, leads me to the firm view that this is an example of aggravated burglary at the lowest level.  That said, the victim was entitled to feel safe in his room.  He endured a frightening ordeal.  The co-accused set upon him with significant violence and they were armed.

3As is well appreciated, aggravated burglary is an enabling offence.  It is the entering of premises, such as a hotel room, as a trespasser with a particular intent.  The facts and circumstances of this case and your role expose the enabling aspect of the offence as opposed to other crimes and consequences that arise once unlawful entry occurs.  Those other crimes and consequences are commonly of the assault type that in fact occurred here.  You are not charged with those offences.

4On 10 August 2020, you were residing in a hotel room in Croydon or Ringwood.  The victim was in the next room.  Two masked men came into the hotel intent on breaking in and assaulting the victim.  They ask you and you agree to assist by knocking on the victim's door to get him to open it and thereby enable the masked men to more easily get in and assault the victim.  The door was forcefully opened by the two men who were armed.  They set up on the victim injuring him by striking him with the metal bar and wooden stick that they brought into the room for that purpose.

5You came into the room.  You were unarmed, rather you carried a packet of chips which you were eating from.  You left that evidence in the room.  The two men left the room and the hotel.  They remain unknown.  You remained at the hotel, knocking on the victim's door asking if he was okay.  You ultimately spoke to the police at the hotel.  After your arrest, you, in a record of interview, set out the circumstances of your involvement.

6You were not charged until July of 2021, 11 months after the offence.  You were remanded in custody for other offences in August 2021, a sentence of
10 months was imposed for those unconnected offences.  In the meantime, you ran a committal and went through various case management stages in the County Court.  You were at that time, or at that point, facing much more serious offences than the aggravated burglary.

7On 4 February 2023, you were again remanded on other offences.  I think the resolution of those matters is dependent, or is connected to the resolution of these more serious matters. 

8As it turns out, you have no pre-sentence detention attributable to this offending.  I do take into account you have been in custody on two separate occasions, while awaiting trial.  Your trial was to have occurred in early May.  Your plea of guilty is a matter of considerable weight.  First, because it relieved the prosecution of the always difficult task of proving beyond reasonable doubt, that you were complicit in the offending that arose for you in the moment, in contrast to the co-accused, who plainly planned the serious aggravated burglary and assaults that they perpetrated.

9In addition, yours is a plea in these times when COVID caused pressures on the criminal trial list remains very significant.  As the Court of Appeal in the important decisions of Worboyes[1] and Chenhall[2] made clear, sentencing courts, such as this court, must respond by giving augmented utilitarian benefit to those like you who plead guilty, rather than continue with a trial.  The benefit must be palpable to you and of an order that others who are guilty are encouraged to plead guilty.

[1]Worboyes v The Queen [2021] VSCA 169; 96 MVR 344.

[2]Chenhall v The Queen [2021] VSCA 175.

10Your plea is evidence of some remorse.  This was not your argument and you do regret getting involved in the argument or the assaults in that aggravated burglary perpetrated by the masked unknown men. 

11There has been significant delay of two years and nine months or thereabouts since this incident which occurred on 10 August 2020.  You have undergone sentences or remand within that time.  The incarceration was during the highly restrictive or onerous circumstances within the prison system due to COVID.

12As to your personal circumstances, you are approaching 42 years of age.  You were born in Melbourne.  You went to Turkey, the homeland of your parents in your early teens before moving back to Melbourne after two years. 

13You did not go beyond Year 7.  You left school to join your father as a bricklayer.  Your drug use in your mid-teens saw there were times when you moved out of home and became homeless.  You returned to Turkey at age 18 for military service where you describe situations involving significant trauma that you witnessed.

14You came back to Australia and took up bricklaying which you stuck with until about 30.  You had difficulty with drug, alcohol and gambling addictions.  These were at the heart of your very long criminal history.  This long criminal history and failed Community Corrections Orders are of particular concern. 
The assessor at Corrections found you were unsuitable for another Community Corrections Order because of these past failures. 

15For my part I hope Corrections do not just give up on those whose path towards reform is rocky.  It is hoped that you can now with your greater maturity maintain commitment to a Community Corrections Order.  I make it clear that if you do not, you will be resentenced by me to years of imprisonment.

16Your family remain close and are supportive.  Your sister sees in you a change.  A changed attitude and a commitment to helping your elderly parents who are not in good health.  You have accommodation with them once you are released from prison.

17Your prospects of rehabilitation are guarded at best.  And my task is to establish conditions that may facilitate rehabilitation.  That is done, in my view, by simultaneous punishment and rehabilitation programs available through a targeted Community Corrections Order.  In the end, the best prospect for the community to be protected is if you put an end to your past criminal ways and deal with your drug addictions with the supports that can be provided by Community Corrections together with your family.

18I reiterate, if you do not comply with the Community Corrections Order then you will return before me and I will resentence you to imprisonment.  This crime was serious and obviously its impact on the victim was very significant indeed. 
The sentence I impose is – for the crime of aggravated burglary, you are sentenced to three months' imprisonment together with a 12-month Community Corrections Order.

19Program conditions of that order are that you must undergo assessment and treatment for drug addiction.  You must undergo or do programs that you are directed to do, to reduce your risk of reoffending, and you must be under supervision.

20Had you pleaded not guilty to these matters and gone to trial, I would have imposed a sentence of three years with a minimum term of 14 - 16 months.[3]  Is there anything further required?

[3]Sentencing Act 1991 (Vic), s 6AAA.

21MR TURNER:  No, thank you, Your Honour.

22HIS HONOUR:  Thank you.  Mr Huseyin what needs to occur is that I outlined to you the conditions of a Community Corrections Order and then you have to consent to it which you can do orally.  You can again be seated. 

23Mr Huseyin you have got to understand that everyone on a Community Corrections Order has the following conditions:  the first, the most important, is you must not commit any offence punishable by imprisonment during the course of this Community Corrections Order.  Should you commit any offence punishable by imprisonment, doesn't matter what the magistrate does, you'll be returned back to me, and as I've said to you there'll be inevitable imprisonment.  You must also cooperate with the Office of Corrections; you must do that by reporting to the Office of Corrections within two clear working days of being released from prison.

24You must tell them, if you change address or your job. You cannot leave Victoria without getting permission to do so and you must obey all lawful directions from the Office of Corrections.  The program conditions I've already outlined, I'll just restate them.  You must be assessed and treated for your drug addiction.  You must do programs you're directed to do to reduce your risk of reoffending and you must be under supervision.  Do you understand all that Mr Huseyin?

25OFFENDER:  Yes, I do, Sir.

26HIS HONOUR:  Will you consent to doing that order?

27OFFENDER:  I do, Sir.

28HIS HONOUR:  Thank you.  Is there anything further required?

29MR TURNER:  No, Your Honour.

30HIS HONOUR:  Thank you very much for your assistance.

31MR MALIK:  As Your Honour please.