Director of Public Prosecutions v Kacoglu

[2018] VCC 1433

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01775

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUHAMMET KACOGLU

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Kacoglu
MEDIUM NEUTRAL CITATION:	[2018] VCC 1433

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Keys	Office of Public Prosecutions
For the Accused	Mr M. Martoccia	David Barrese and Associates

HIS HONOUR:

1Muhammet Kacoglu, you have pleaded guilty to one charge of burglary and one charge of arson.  Those crimes carry maximum penalties of ten years and 15 years respectively.

2You are now 42 years of age.  You pleaded guilty at a reasonably early opportunity.  I accept that your plea of guilty is accompanied by remorse and you must also get the utilitarian benefit of that plea of guilty.

3You do have some prior convictions and findings of guilt, but they are now of some age and of no real significance in this sentencing process. 

4Firstly, pursuant to s.464Z of the Crimes Act, I make the order that you provide a saliva sample for DNA purposes.  That order having been made, I advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

5A summary of the offending is that, in September 2016, you were related to a Ms Emre Guclu.  She lived in a house in Roxburgh Park.  You, knowing that she was overseas on a holiday and in a very distressed condition because of problems with your marital circumstances, called a nephew, a Mr Sinan Sayan on your mobile phone.  You told him that you needed help and nobody would help you.  You were crying when you spoke to him. 

6He drove home, where he found you waiting for him and went for a walk.  You explained to him that you just had to see your children and told him you were going to do something.  He took you for a short drive, in which time you just continued to say you wanted to see your wife and children.  He kept trying to calm you down, but you became even more distraught.  You told Mr Sayan that you would contact him within half an hour and left him.

7What you then did was, went to the property at 10 Knight Crescent, went into the rear of the yard, gained entry to the vacant house, which is burglary, went inside, you ignited a fire in probably a number of different positions and left the premises at around about 7.18 pm.

8The fire brigade were called.  The situation is, that whilst the house was not destroyed by the fire, it was left in a situation where the council ultimately ordered its demolition.  The house was in a position where it was not attached to other residences and does not have that aggravating feature to it. 

9You did not see Mr Sayan drive past you when he saw you on the street.  He asked you what you had done and you said that you, "I did what I said I would do."  He followed you as you walked to a nearby café.  He alerted police about your whereabouts and they met him in the car part of the café.  They could not find you. 

10Later that evening, in the early hours of the morning, he returned to the café and he found you in the prayer room at the back of the café in an extremely distressed state.  Police were called, at which time they arrested you.  You then were held in custody for a period of 199 days.  You gave some bizarre version of events as to how the fire had occurred, and you were ultimately bailed.

11The matter first came on before me some six or so months ago.  At that stage, your background was pointed out to me.  For a starting point, arson is a serious offence and most usually it carries imprisonment.  You now have, as I said, served 199 days.  It calls for the application of general and to a certain extent, specific deterrence, denunciation and punishment.

12Your history was outlined and the Crown were aware of that background.  The submission was that time served plus a CCO would be sufficient and the Crown agreed with that proposition.  Accordingly, that is what I am going to do. 

13What I have indicated and one of the reasons I adjourned it from the other day, is that this - objectively, without knowing the background of it, would seem to be a very light sentence for arson.  I think, therefore, because of the extraordinary nature of your background, it is important that I just put on paper what your life has existed of. 

14The last time it was before me, you were endeavouring to reconcile with your wife and the mother of your children.  I now understand, through the material provided to me, that that has, to a large extent, been achieved and you have her ongoing support.  It is clear that in the period of time that has elapsed, you have been doing everything you possibly can to resurrect your life.

15Basically, you and your two younger siblings were born in a Turkish village.  You lost both your parents when you were four.  Your father died and your mother simply deserted the family.  You were raised for five years by a deaf and dumb uncle.  At the age of nine, you and your siblings were abruptly taken and sent to live with a physically and sexually abusive uncle in Australia. 

16You were taken out of school in Year 7 to work for that uncle and you described overwhelming guilt at not being able to protect your sister and brother from your uncle's abuse.  That abuse was both sexual and violent and it has been described in some of the reports as "sadistic", almost unbelievably sadistic.

17In a report from Dr Zimmerman, or one of the reports from Dr Zimmerman which has been tendered, he describes what occurred in your younger years and points out that you attended primary school for one year here and then six months of secondary school.  Your uncle pulled you out of school in order to have him in work.

"He stated he had no English at all when he was at school and was teased a lot.  He told me that he has taught himself English on the streets.  He told me his uncle physically abused him, his siblings and his wife, but never hit his own children.  He told me that his uncle used heroin.  Said that he'd burnt them with boiling water, bashed him on the head and hit his arms.  His uncle sexually abused his sister and on one occasion, tied him and his brother up and made them watch while he raped her.  He said he heard her screaming when she was in the shed with the uncle on many occasions.  He reported it to the police, but the interpreter knew his uncle and told the police it wasn't true, so it was never investigated.  The uncle returned to Turkey with the family and his sister when he was 14 and he's never seen his sister again.  He said that he was left to fend for himself and care for his brother, who was 13.  He said they lived on the streets until he was 20.  During that period, he said he met Aussie boys who introduced him to cannabis, so that he could forget.  He was stealing on the street in order to survive." 

18That brother has serious difficulties and disappears from time to time, which is why I raised the matter that I did before this plea commenced. 

19When you were 23, you married an Australian-born wife and described her as a terrific, kind, caring person.  She stayed well.  You both worked and have children. 

20Unfortunately, you have a son who has a rare congenital chromosomal abnormality called "Wolf-Hirschhorn Syndrome".  That affects multiple organs and is associated with varying degrees of intellectual disabilities, seizures, delayed growth and development.  Your son requires constant specialist attention at the Royal Children's Hospital and he can have anything up to ten seizures per day. 

21There was plenty of medical material here to support that and extremely difficult circumstances in which you and your wife are trying to raise the children.  The youngest child has now been diagnosed in the early stages of ADHD and that is just simply adding to the process.  The reports that were tendered on your behalf are drug rehabilitation people, LifeWorks, and from a medical practitioner who was describing the magnificent efforts you are making, in terms of trying to look after your child. 

22Just for the record, on file are two reports from psychologist, Ken Wilcox, one report from a Dennis Johnson, a child - a person I referred to a moment ago, two reports from LifeWorks, one from IPC Health about drug and alcohol and
I accept that you are doing well with that, a letter from your wife and two reports from the psychiatrist, Zimmerman, that I have referred to. Also tendered on your behalf were drug screens and I am satisfied that you and your wife are doing the absolute best that you can.

23When you were on bail in the CISP program, you performed everything that the asked of you and you have made very strong efforts, in terms of turning your life around. 

24Your history is almost unbelievable.  The decisions such as Bugmy and the like, obviously play a massive part in all this and quite frankly, having been in the criminal law for a long time, it is quite extraordinary that you are still alive.  However, I take all those matters into account and I simply related them here to indicate to any genuinely interested person why I am giving a disposition of this nature and why the Crown, obviously in these circumstances, are agreeing to it. 

25Prospects of your rehabilitation are good and have already be affected, in my view.  The risk of you re-offending, as long as you do not use drugs to try and block things out, I think would be very limited indeed.  You have a future, you have a very strong purpose in life and I am confident that you will be able to comply with the conditions of a community corrections order. 

26Accordingly, on the two charges, an aggregate, because it is the same offence really, of 199 days.  I direct that 199 days be reckoned as having been served under this sentence.

27There will be a community corrections order to commence now, which will be two years' duration, with conviction and you have been assessed for a community corrections order and found suitable.  It will have the conditions that were recommended by the Community Corrections people, that being, treatment and rehabilitation for drugs, mental health, programs to reduce
re-offending and supervision.

28I am sure you will understand that if things do start to go wrong for you, that you will always have, in those circumstances, at least for the next couple of years, people that you can speak to.  If something goes wrong with the order, you can always be brought back before me and can be explained and we can work out where we go from there. 

29All right, so I just want to sign that and we can call it quits. 

30All right, all those orders are made.  All right, good luck, Mr Kacoglu.

31MR MARTOCCIA:  Thank you, Your Honour. 

‑ ‑ ‑