Director of Public Prosecutions v Kaya

[2013] VCC 1910

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CIHAN KAYA

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JUDGE:	His Honour Judge Carmody
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 November 2013
CASE MAY BE CITED AS:	DPP v. Kaya
MEDIUM NEUTRAL CITATION:	[2019] VCC 1910

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L. Ruschena	Office of Public Prosecutions
For the Accused	Mr P. Bloemen

HIS HONOUR:

1       Mr Kaya, you are before the court on an appeal from the Magistrates' Court Order made at Dandenong on 1 August 2013.  On that day you were sentenced to four months aggregate imprisonment.  You are also before this court on a breach of a suspended sentence as a result of that offending and obviously you are here to face the suspended sentence itself.

2       I will deal first of all with the appeal.  The sentence in respect of the appeal is of four months aggregate imprisonment.  In respect of that matter, I find that on two occasions you were caught driving while suspended and that those occasions were, in my view, flagrant breaches of court orders for your suspension from driving.  On the first occasion you told police your reason for driving was work.  The officer who intercepted you was the informant in the assault case to do with your brother.  The offence occurred within six weeks of my order and my warning to you.  I will return to the warning later. 

3       On the second occasion, you were moving house.  Your wife gave evidence this was the only other time that you drove a vehicle.  You knew you were suspended as the same officer who had charged you about your brother had charged you for driving while suspended in September.  The version of events of getting your licence from VicRoads, you checking at VicRoads and then saying to the police at the time of the interception, "I've been to VicRoads two weeks ago and they said I had a licence", it all defies the intelligent person that everyone says you are and you must, at that stage, have had a memory of what I was saying to you in your presence on 18 July 2012.  This was another example of you doing just want you wanted to do. 

4       In summary, there are two offences where you defiantly and deliberately breached the court orders when it suited you, knowing that the consequences for you if you got caught would be dire. 

5       I will turn to the suspended sentence.  On 18 July 2012, you were placed on a two year sentence of imprisonment for an operational period of two years.  On that day, after I had announced the sentence and disqualified you from driving or suspended your licence from driving, you stepped out of that dock.  I then said this to you, "Mr Kaya, I have just sentenced you to two years' imprisonment.  That is the sentence.  What I have allowed you to do is go home.  It is wholly suspended.  Do not think for one minute, walking out of here, you have not been punished because for the next two years if you step out of line, you exercise that hot head of yours and you will be back.  You will be back for that", meaning the offence "whatever it is and you will be back to go out that back door here for two years.  So you can thank your brother for that in large part", and that was to do with your brother's forgiveness on the last occasion. 

6       It has been urged upon me that there are exceptional circumstances that exist that mean I should not activate the suspended sentence.  I am summarising them as follows.  First of all, you have lost your business of Kaya Logistics in the interim;  you have lost your house at Point Cook;  your wife now is pregnant and due to have a child in April 2014;  your wife will not be able to maintain herself and a house and her child if you are incarcerated;  and finally, you are a different man to the one I sentenced in July 2012, that is Ms Warren diagnoses you as a person who has extremely severe anxiety and moderately severe depression.  Those psychiatric and psychological conditions arise from your present court problems.  Ms Warren says, "Overall, you remain a high functioning individual who has no real conception of possible failure."  She goes on to say it is unlikely that you would not cope with a custodial sentence - I am paraphrasing what she says. 

7       I am not satisfied any one of these matters amounts to exceptional circumstances in this case, such that I should not activate the suspended sentence I imposed in July 2012.  Your financial difficulties are matters of your own making in the end.  The licence cancellation and the over-expenditure that you had engaged in may have added to the problem but they do not all amount to exceptional circumstances.  Unhappily, your breaches on 4 September 2012 and 24 November 2012 have visited upon your wife and unborn child a great hardship.  Family hardship is often the result of incarceration of offenders and in this case, it does not amount to an exceptional circumstance.

8       You have pleaded guilty to the breach of suspended sentence.  I order as follows.  On the appeal, I set aside the Magistrates' Court order made on 1 August 2013 and reimpose the same order which is that you have an aggregate sentence of four months' imprisonment in respect of the two charges of driving while suspended.  In terms of the suspended sentence, I order that the suspended sentence of two years' imprisonment imposed upon you on 18 July 2012 be activated.  I order that this sentence be served cumulatively upon the appeal sentence I have just pronounced.  Thirdly, the breach of suspended sentence, I order that you be convicted and sentenced to two months' imprisonment on that charge.  I order that this sentence be served cumulatively on the appeal sentence and the suspended sentence. 

9       That is a total effective sentence of two years and six months.  I order a non-parole period in this case of two years' imprisonment.  I declare that you have served two days pre-sentence detention which will be deducted administratively.

10      MR BLOEMEN:  Your Honour pleases.

11      HIS HONOUR:  You will remove the prisoner, thank you.  Adjourn the court.

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