Director of Public Prosecutions v Ikiz
[2019] VCC 2146
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01704
Indictment No: J10392570
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA IKIZ |
---
| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 December 2019 |
| DATE OF SENTENCE: | 17 December 2019 |
| CASE MAY BE CITED AS: | DPP v Ikiz |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2146 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Plea of guilty- four charges of sexual assault- sexual assault in the workplace-no priors-
Legislation Cited: Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), Sentencing Act 1991 (Vic)
Sentence: Convicted and sentenced to a 2 year Community Corrections Order with community work hours and treatment requirements---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg (Plea) | Office of Public Prosecutions |
| For the Accused | Ms A. Cannon | Pica Criminal Lawyers |
HER HONOUR:
1Mr Ikiz, on a number of occasions between March 2016 and June 2017, you, a man in your early 40s, with no prior convictions, sexually assaulted a female co-worker who was 20 years your junior. You and your victim were both employed in her family's business, which was sheet metal fabrication. Your sexual assaults all occurred in the workplace and comprised touching your victim on her buttocks, breasts and vagina on the outside of her clothing or underwear and rubbing yourself against her. Needless to say, she did not consent to this contact.
2There was a hiatus in your conduct between February and June 2017 following your separation from your wife. Your wife had discovered social media messages between you and the victim and demanded you leave the marital home. During this hiatus, your victim attended the police to report another matter. She told the police of your behaviour, but believing it was over, did not wish any action to be taken.
3Unfortunately, it was not over. You started touching the victim again. She decided to obtain proof. She filmed your interactions with her on three different days in late June 2017. She then told her father what had been going on and reported the matter to the police on 28 June 2017.
4You were interviewed on 17 October 2017, charged on 26 January 2018, and ultimately pleaded guilty in this court on 18 September 2019 to four charges of sexual assault, contrary to s.40(1) of the Crimes Act 1958. The maximum penalty for each offence is 10 years' imprisonment.
5In arriving at an appropriate sentence for your conduct, I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
Gravity of the offending and moral culpability
6I shall not outline the full details of your offending, which is set out in the Summary of Prosecution Opening (Exhibit B on the plea). Whilst relating to specific occasions, Charges 1, 2 and 3 were agreed to be representative of similar conduct on other occasions.
7You commenced working with the victim in her father's factory in about November 2015. Notwithstanding the age difference, you and the victim developed a friendship. On an occasion between 1 March and 31 August 2016, when you and the victim were about to leave the factory and the lights had been turned off, you rubbed yourself against her (an uncharged act) and then put your hands down the back of her pants and touched her buttocks (Charge 1- the first of seven similar incidents). The victim was shocked and repeatedly told you 'No' and tried to push you away. You desisted when her protests became louder. You became upset and then apologised. You repeated your apology the next day and told her that you 'would never do that again'.
8Despite your assurance, in September 2016 another incident occurred. You and some fellow employees, including the victim, were having drinks in the factory at the end of the week. When you were alone with the victim, you pulled her towards you and started hugging her. She told you to 'Stop, stop', which you did when a co-worker returned. When you were again alone, you stood behind the victim whilst she was using a paint gun, grabbed her breasts (represented by Charge 2) and touched her buttocks (represented by Charge 1), ignoring her entreaties to stop. Later, you again stood behind the victim when she was using a paint gun. You put your hand under her shirt, over her bra in the face of her protests (Charge 2- the second of four similar incidents) whilst rubbing your pubic region against her (represented by Charge 3) and saying, 'It's okay my darling'. You then put your hand down her pants and touched her vagina over her underwear (Charge 4). The victim felt trapped and was telling you to stop, but you kept saying, 'You're wet. It's okay. I'm wet too'. When she said she did not want to paint anymore, you stopped.
9Charge 3 relates to an incident that occurred in late February 2017, when you grabbed the victim in an area of the factory hidden from view, held her from behind and rubbed your exposed penis against her buttocks (Charge 3 is the second incident of three similar, although the only incident in which your penis was exposed). The victim told you to stop and tried to pull away, but you held her and told her to stop pulling away. It appears you then ejaculated as the victim felt a wet patch on her pants. She left work and went straight home.
10The incidents captured on the victim's mobile telephone on the three days in June 2017 are all represented by the charged offences. Suffice to say, they consist of you either squeezing her breast (twice), touching or slapping her buttocks (five times), or thrusting into her from behind (once). I have viewed the video footage and the victim can be observed flinching and repeatedly telling you not to touch her and, on one occasion, you say to her 'don't move'.
11Your offending occurred in the victim's workplace where, just like her home, she had a right to feel safe. It was submitted that, to the extent there was a power imbalance between you, the fact the victim was 'the boss's daughter' meant that she had the power. I do not accept that. Although not a child, the victim was still a young woman without your maturity. Further, your position as a valued employee of the business was a barrier to reporting you and as time went on without you being reported, you would have become more confident that there would be no repercussions for your behaviour.
12It was also submitted on your behalf that your offending was situational in the sense that you did not orchestrate scenarios where you would be alone with the victim. That may be true, however, there was no need for you to do this as you were frequently alone with the victim and there were plenty of opportunities.
13Your counsel also submitted that there was no breach of trust. In my view, you took advantage of the trust bestowed upon you by the victim's father to work alongside his young daughter. Whether or not it can be described as a breach of trust, you also took advantage of your friendship with the victim and her good nature. You persistently sexually touched her in the face of her repeated requests for you to desist. Nothing she said or did deterred you. You did not respect her wishes and seemed to consider it your right to do what you were doing.
14For the reasons just stated, your offending was serious and your moral culpability high. That said, I accept the joint submission of your counsel and the Crown that your conduct can be categorised as at the mid to lower end of this type of offending. That is not to detract from its seriousness or its impact on the victim and her family, rather it is to acknowledge that this court often sees more serious examples of sexual assault than this.
Impact of your offending
15I was provided with a victim impact statement from the victim's mother, herself a victim of your crimes. Whilst I accept that the impact of your crimes on the victim and her mother may be hard to separate from the impact of other crimes of a sexual nature which were perpetrated upon the victim by another offender, it is clear that your offending has had a significant effect on your victim, her family and the family business. According to her mother, the victim hid what was happening for months, unsure what to do about it, and has mentally and physically 'fallen apart'. Her mother feels guilt at the fact she did not protect her daughter, although working in the same business.
Plea of Guilty, co-operation and remorse
16You are entitled to a utilitarian discount for pleading guilty. You offered to plead guilty to the present charges on 16 August 2019. This was after a contested committal at which the victim and other witnesses gave evidence and after several Directions Hearings in this court. It could not be said that your plea of guilty was at the first opportunity; however, the matter did resolve reasonably quickly after the prosecution agreed to withdraw a more serious charge upon which you had been committed. By pleading guilty, you have facilitated the course of justice and taken legal responsibility for your crimes. Witnesses have been spared the experience of coming to this court to give evidence in a trial.
17It was submitted that you were remorseful. If so, this would entitle you to an even greater discount. Whilst you apparently expressed remorse to your counsel, for the reasons which follow, I am not satisfied that there is genuine remorse.
18When you were confronted by the victim's father with the allegations in late
June 2017 and told 'you're finished now', you did not apologise, you simply replied 'okay' and walked out. When you were interviewed by police on
17 October 2017, you initially denied having touched the victim in a sexual manner during work. When Police showed you still images from her mobile phone, you told them that she was 'becoming very flirty', that she 'wanted it', and 'nothing was forced'. You also said that the recordings occurred after a fallout with the victim and that they were 'planted'.19Finally, during your corrections order assessment, you showed limited insight into your offending and the effect on the victim.
Your character and risk of reoffending
20Not only do you have no prior convictions, you have a good employment history. You are entitled to be sentenced as a person of otherwise good character.
21I have been assisted by one character reference from your present employer Keith Coombe, dated 9 December 2019 and marked as Exhibit 2. Mr Coombe describes you as displaying a 'work ethic and maturity rarely seen in employees at this level'. You were also supported in court by your friend of 15 years, Tony.
22Although it is concerning that you display limited insight into your crimes, the fact that you have reached your 40s without prior offending augurs well for your future. I am also confident this whole experience has had a salutary effect on you. Overall, I am satisfied your prospects of rehabilitation are good and your risk of reoffending low.
Background and personal circumstances
23Your background and personal circumstances were briefly set out in the Outline of Plea Submissions tendered on your plea and marked as Exhibit 1 and elaborated upon by your counsel during oral argument. You were born in Turkey in 1974 and raised in a small village by your parents who worked as farmers.
24You left school when you were 13 or 14 years old and commenced employment. You have a solid work history. You initially worked as a cleaner at an airport in Turkey before working in a retail position at your uncle's paint shop at age 17. You worked at the shop for three to four years before undertaking compulsory military service in Turkey for 18 months. You then returned to work at the paint shop.
25Since moving to Australia, you have worked as a process worker. You initially worked for Keith Coombe for a period of 13 to 15 years. You then started working at the factory where the offending took place. After you were dismissed in June 2017, you were unemployed for a brief period. You then found work at another factory for seven months before returning to work for Keith Coombe at Kestrel Manufacturing in Thomastown as a full time spray painter. You remain working in this position.
26You met your wife in 1998 through what was described as an 'arranged marriage' through family connections. Two weeks after you married, you moved to Australia, your wife having already settled here with her family. You eventually settled in Noble Park. You have three children together, being two daughters and a son.
27You remain separated from your wife as a result of this matter. However, you still have an active role in raising your children. You are welcome at the family home and you rent a house close by. You also continue to support your family financially, your counsel describing you as paying more than the required child support. I am told it is possible you will reconcile with your wife once 'all of this' is over.
28Your parents are still alive and remain living in Turkey. You describe your father as being unwell, having been diagnosed with a brain tumour and vascular issues. You are anxious to return to Turkey to visit your family as soon as you can.
Purposes of Sentencing
29In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community from you. A custodial sentence must only be imposed as a last resort.
30Your counsel submitted that the imposition of a community corrections order alone would satisfy the sentencing purposes in this case. The prosecutor did not demur.
31Whilst current sentencing practices is just one matter to consider, the most recent Sentencing Advisory Council Statistics (May 2019) indicate that over the last five years, sexual assault has attracted a community corrections order (without imprisonment) in 41 per cent of cases. Thus, it is clearly not an unusual sentence.
32There is no doubt a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes. I accept that this is the case here. The length of the order and the hours of unpaid work I will impose will serve to punish you and deter you and others from this type of offending. The treatment and rehabilitation condition will serve to consolidate your rehabilitation prospects, which as I have said, are already good.
33I have had you assessed, and you have been found suitable.
Sentence
34If you could stand please now, Mr Ikiz.
35On all charges, I convict and sentence you to a single community corrections order. The order will last for two years.
36You are to report to: Dandenong Community Correctional Services Centre before 4 pm on 18 December 2019. The order has several mandatory conditions, that is every corrections order has a number of conditions, including that you not commit another offence for which you could be imprisoned.
37You also have to comply with any obligation or requirement described in the Sentencing Regulations. You must report to and receive visits from the Secretary. You have to let the Community Corrections officer know within two clear working days if you change your address or your job. And you must not leave Victoria without first getting permission to do so from the Secretary. So, I know you wanted to visit your father. If you want to do that, you will need to get permission.
38Now, the conditions that I also impose in addition to those mandatory conditions are that:
39You are to be under the Supervision of a Community Corrections Officer;
40You are to complete 300 hours of unpaid community work over the period of the order;
41You are to undergo assessment and treatment for programs to reduce your reoffending.
42Your counsel will explain the order to you in more detail. But you understand what I have said so far?
43OFFENDER: Yes.
44HER HONOUR: And you must make sure you comply with the order, because if you do not, then failure to comply is itself an offence and you can be sentenced to imprisonment for up to three months for that offence. And also, if you do not comply with it, you are liable to be resentenced for these offences.
45Yes, all right. I will give the order to my associate, and I have already signed the order, and now you can sign the order as well.
46MS CANNON: Your Honour, may I also approach?
47HER HONOUR: Yes, certainly.
48MS CANNON: Thank you, Your Honour.
Section 6AAA
49HER HONOUR: Mr Ikiz, the last thing I want to say you is in recognition of the fact that you have pleaded guilty, I have discounted the sentence I would have otherwise given to you. If you had not pleaded not guilty to these charges and then been found guilty by a jury, I would have sentenced you to a term of imprisonment of 14 months with a non-parole period of eight months.
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