Director of Public Prosecutions v Iskender

[2020] VCC 919

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02328

DIRECTOR OF PUBLIC PROSECUTIONS

v

CEM ISKENDER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2020
DATE OF SENTENCE:	24 June 2020
CASE MAY BE CITED AS:	DPP v ISKENDER
MEDIUM NEUTRAL CITATION:	[2020] VCC 919

REASONS FOR SENTENCE
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Subject: Robbery, Commit an indictable offence whilst on bail
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Schiultz	Office of Public Prosecutions
For the Accused	Ms V. Drago	Theo Magazis & Associates

HER HONOUR:

1Cem Iskender, you have pleaded guilty to robbery and agreed to have dealt with by me, and pleaded guilty to the summary offence of committing an indictable offence whilst on bail.  The maximum penalties for these offences are 15 years and 30 penalty units, or three months imprisonment respectively.  The circumstances of your offending are contained in the prosecution opening, Exhibit A, and can be summarised as follows. 

2At 8.36 pm on 28 May 2019, you went to a 7-Eleven service station located in Mount Alexander Road, Essendon.  You parked your car and took a bag of firewood that was stacked near the front door and used it to prop open the front glass doors of the store.  You walked towards the locked glass door that provided access to the restricted area behind the counter and grabbed a mop that was leaning against the door.  Mr Adnoa who was working at the store, approached you and you demanded he give you money and threatened to hurt him.  Mr Adnoa entered the restricted area and opened the cash register, whilst you kept demanding money.  He took $120 in cash from the register and handed it to you.  You took the money and left the store.  Mr Adnoa then contacted police and both images of you and your car were captured on CCTV.

3About 10 pm that night you were located and arrested by police at your home in Ascot Vale.  You were wearing the same clothes as shown in the CCTV and admitted to police you had purchased cigarettes with the stolen money and that $35 remained in your wallet.  When formally interviewed, you admitted to making demands for the money and taking the cash, though you denied being aggressive.

4On 7 January 2019, you failed to appear before the Heidelberg Magistrates' Court in accordance with an undertaking of bail.  The warrant was issued and you were later arrested on this warrant.  You were then granted further bail to attend court on 3 July 2019 and this offending occurred whilst you were on this bail.  No victim impact statement was provided, however, clearly, it would have been a frightening experience for the 7-Eleven employee who was just doing his job.

5As to your personal circumstances, I was provided with a psychiatric report of Dr Anthony Cidoni, dated 4 May 2020 and I take that material into account.  You are currently aged 45.  You have a child aged 17 as a result of a ten year relationship that ended some time ago.  You currently have no contact with your son.  You successfully finished high school then completed a graphic design diploma in 2013.  You have worked various jobs for limited periods, though I was informed that you most recently worked casually as a mechanic.  Your capacity for employment presumably has been effected by your substance abuse and mental health issues.  I was informed that you recently commenced fulltime work using your design skills. 

6You have an extensive history of polysubstance abuse commencing using opiates from age 14.  Your drug use escalated to a daily habit by the time you were 30, with the use of heroin and cannabis.  You have been on methadone for periods of up to ten years and although there have been occasions of you relapsing, I was informed that you are now abstinent from drug use.  You suffered an acquired brain injury, attributable to a number of events.  A bike accident in 1989, an assault in 1992, chronic substance use and chronic inhalation of industrial propellant, which occurred during the course of your employment as a panel beater.  Your first contact with Psychiatric Services was in 1998 when you were aged 24 with Orygen Youth Health, where you were diagnosed with schizophrenia. 

7Since 2006, you have been admitted as an inpatient, both on a voluntary and involuntary basis, undergone electroconvulsive treatment and have suffered a number of relapses with diagnosis of both schizophrenia and drug induce psychosis.  Most recently, in 2018, you were admitted to hospital with a catatonic relapse of schizophrenia and you were treated with electroconvulsive therapy.  You remained an inpatient for some 26 weeks until April 2019.  This offending occurred the following month.  Currently you are prescribed antidepressants, though you have ceased antipsychotic medication.  Your medical diagnosis, both past and present have included schizophrenia, chronic depression, dysthymic disorder, associated anxiety and acquired brain injury.  You have other medical issues, most recently in 2017, where you were involved in a motorbike accident and fractured your left tibia.  You later suffered complications with infection and remain on pain relief medication.  You also suffer from Graves' disease and have other medical issues that are detailed in Dr Cidoni's report.

8As is apparent from Dr Cidoni's report, you have complex mental health issues.  Dr Cidoni opined your depression makes it difficult for you to cope in general terms.  Further, that your ABI and the long term effects of schizophrenia, result in you having impulsive and impaired judgment.  However, Dr Cidoni noted that there was no evidence that at the time of this offending, you were experiencing a psychotic relapse, or that you had symptoms suggestive of you experiencing a relapse of schizophrenia.  Your counsel submitted that Verdins was enlivened in respect of your functioning at the time of the offending in the following ways.  That your moral culpability should be reduced, given the offending occurred only a month after you had been released from a six month hospitalisation and that both general and specific deterrence should be moderated, given your complex mental health issues and additionally, in respect of specific deterrence, your lack of relevant prior convictions.  These were such that both of these should be reduced.

9Without challenging Dr Cidoni's opinion, the prosecution disputed the application of Verdins relating to the time of the offending.  Although the existence of your mental health issues was accepted, the dispute between the parties centred around the impact or the connection of them to your actions for this offending.  It was submitted by the prosecution the relevant causal connection had not been established.  Your mental health issues, though not directly a cause of your offending, cannot be ignored.  The offending occurred in the context of you recently being discharged.  That context or background is a matter for me to take into account.  Although your mental state at the time was not such that you were in a psychotic state, or experiencing such symptoms, your impulse control was lessened because of your mental functioning as a consequence of the numerous conditions previously noted and was linked to your actions.  Your moral culpability and deterrence should be reduced and given less weight.

10It was not disputed between the parties that, and I accept Dr Cidoni's opinion, that it would be highly likely that your fragile mental state would deteriorate in custody, your depression and anxiety would worsen and you would be at risk of self-harm and psychotic relapse.  This is consistent with events that did occur whilst you were on remand.  Your first experience of custody, with incidents of self-harm and a suicide attempt.  Clearly Verdins principles relating to the burden of custody on you and a likely deterioration in your condition are applicable to you.  As to COVID-19, it is accepted that this issue has generated a degree of stress among the prison population, with limited autonomy or control over movement.  Further, there has been lockdowns and courses have been cancelled or suspended.  Any term of imprisonment will be more burdensome for you, as a consequence of the virus. 

11You have a number of prior convictions, so these are predominantly for traffic related matters.  You have court appearances in 2005, 2011 and 2018.  You have no priors for violent offending of the kind before me.  The prosecution highlighted your disregard for road rules and offending whilst on bail.  I accept, however, that none of your previous matters before the court are of a similar nature to robbery.  I view your prior matters have limited relevance to your rehabilitation prospects and specific deterrence.  I take into account your plea of guilty. 

12Although a committal was conducted, I was informed that you had offered to resolve this matter with a plea of guilty to the offences before me, prior to that occurring.  It is a relatively early plea.  There is a utilitarian benefit in your plea and you have saved the cost of a trial to the community.  Further, your plea is indicative of remorse.  That is consistent with you making full admissions on the day of the offending and your cooperation with police.  Your offending was directed to what is commonly called a soft target.  Employees in these establishments are entitled to feel safe in carrying out their jobs, in circumstances where they are frequently alone in the business, at night time.  However, it was conceded by the prosecution that this was low level offending.  Your conduct was impulsive and unplan ed.

13Your counsel submitted you were committed to your rehabilitation and that you had good prospects given the following.  Your participation in RASP, that being the Recovery and Support Program at Banyule Community Health Centre, your engagement with Uniting ReGen's peer support group weekly and AOD treatment and your upcoming neuropsychological assessment with RBS.  These matters are all outlined in the letter of support and progress from Katie Belt from Uniting ReGen, an undated document, Exhibit 2.

14She notes:

'You demonstrate commitment to your treatment by attending all appointments and readily discuss your issues with regard to your AOD use.  You have demonstrated good insight into the impact of your AOD use and are determined to maintain abstinence and improve your quality of life, and overall wellbeing'.

15Additionally, relevant to your rehabilitation prospects are your limited prior convictions, your plea of guilty and remorse.  Your counsel submitted you have accommodation and are feeling supported for your mental health and other issues.  I note Dr Cidoni stated your rehabilitation prospects could significantly increase upon your successful completion of ongoing treatment through an area mental health service and continuing alcohol and drug treatment.  I accept that your rehabilitation prospects are good, depending upon you complying or continuing to seek relevant treatment.

16General deterrence suitably moderated, specific deterrence, just punishment and protection of community are all relevant sentencing considerations to take into account, to be balanced with your particular circumstances, including your mental health.  It is clear you will require supervision and assistance in the future to address psychiatric and substance abuse issues.  I note the provisions of the Sentencing Act, relating to offending whilst a person is on bail.  The prosecution submitted that a combined disposition was appropriate with a term of imprisonment and community corrections order properly reflecting all relevant sentencing considerations.  It was not submitted that you be required to serve any additional term on top of that already served.  Your counsel submitted I should take into account that you have already served 85 days and that I should impose a financial penalty.

17Concern was expressed by Dr Cidoni that you required mental health treatment or supervision.  Although you have managed to engage on a voluntary basis with the number of supports, I view it is necessary to maintain a level of supervision of you.  In those circumstances, I had you assessed for a community corrections order and received a favourable report.  Ms Drago, could you please just turn your camera around so that I can see Mr Iskender?  Thank you.

18Mr Iskender, in respect of the robbery and the summary offence, I propose to impose a community corrections order for a period of twelve months, with the conditions as recommended in the order.  As part of the formal records, it will be noted on those records that you spent 85 days in custody.  You need to know Mr Iskender, if you breach this order, I will have to resentence you again in relation to this matter and I may not be minded to adopt the course that I have in this instance.

19I make the disposal order and the forfeiture order as requested and in respect of s.6AAA, if you had not pleaded guilty to this matter, I would have imposed a sentence of imprisonment of time served, with a community corrections order.  Are there any other matters I need to raise?

20MS DRAGO:  No, Your Honour, I think that concludes matters.

21HER HONOUR:  All right.  What happens I think Ms Drago is that an order is sent for Mr Iskender to sign.

22MS DRAGO:  Yes.

23HER HONOUR:  If you could please explain to him what the order means, in terms of the relevant conditions that are set out in the community corrections order report.  Do you have that?

24MS DRAGO:  I do have the community corrections order (indistinct) report.  Your Honour, is the - I don't know if Your Honour is aware of whether or not the information will get sent through to me directly or my instructing solicitor, perhaps it will be a matter of ‑ ‑ ‑

25HER HONOUR:  I am not sure.  I will just find out.

26MS DRAGO:  ‑ ‑ ‑ like contact with Corrections.

27MS SCHIULTZ:  Your Honour, just in relation ‑ ‑ ‑

28HER HONOUR:  All right, my associate will sort that out, all right?

29MS SCHIULTZ:  Apologies, Your Honour.  Just in relation to the supervision condition, is Your Honour imposing judicial monitoring or just supervision through Corrections?

30HER HONOUR:  Just supervision through Corrections.  Thank you.

31MS SCHIULTZ:  Thank you, Your Honour.

32HER HONOUR:  All right, thank you I'll stand down.

33MS DRAGO:  Thank you, Your Honour.

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