Director of Public Prosecutions v Kilic

[2022] VCC 731

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01917

DIRECTOR OF PUBLIC PROSECUTIONS

v

MEHTAP KILIC

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JUDGE:	His Honour Judge Wraight
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2022
DATE OF SENTENCE:	20 May 2020
CASE MAY BE CITED AS:	DPP v Kilic
MEDIUM NEUTRAL CITATION:	[2022] VCC 731

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Theft – No prior criminal history – Very strong prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 74; Sentencing Act 1991 ss 6AAA, 48CA.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Attorney-General v Saunders [2000] TASSC 22; Boulton v The Queen (2014) 46 VR 308; Williams v The Queen [2018] VSCA 171.

Sentence:                  Community Correction Order for a period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Mr P Smallwood	Melbourne Lawyers and Mediators

HIS HONOUR:

Introduction

1Mehtap Kilic, you have pleaded guilty to one charge of theft, contrary to s 74 of the Crimes Act1958, which carries a maximum penalty of 10 years imprisonment.

2You have no prior criminal history.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4You commenced the offending when you were 41 years old.

5The first victim is Ms Cigdem Aslan was aged 71 on the date the offending commenced.

6The secondary victim is Ms Serap Aslan (the daughter of the first victim) was aged 37 on the date the offending commenced.

7You met the victim Cigdem Aslan about 20 years prior to the offending, through the Turkish community.

8Cigdem Aslan resided at a property in Thomastown with her adult son Serhat Aslan.

9You were hired by Cigdem Aslan to be her private house cleaner in about 2016. You had cleaned her house for about three and a half years. As part of your duties you were required to clean primarily the ground floor level of Ms Aslan’s home and would only clean elsewhere on direction of Ms Aslan. Ms Aslan trusted you and felt you were almost like a daughter.

10Inside the garage at Cigdem Aslan’s address was a tall steel firearms safe which she used to store her money and jewellery. Ms Aslan had been saving the money for many years, accumulated from deceased family estates and other savings. Her adult daughter Serap Aslan also stored some of her jewellery in the safe.

11The key used to lock the safe was kept in a soft purse located under some singlets in the bedside table in Cigdem Aslan’s ground floor bedroom. Only Ms Aslan and her daughter Serap Aslan  knew of its location.

12Over multiple occasions between 24 February 2020 and 26 October 2020 you used Cigdem Aslan’s safe key to access the firearms safe when she was not home. You stole a large quantity of cash as well as various jewellery items belonging to Cigdem Aslan and Serap Aslan. The total quantum stolen was:

(a)   cash money - $250,000;

(b)   jewellery – valued at approximately $69,150 comprising:

(c)   one gold clasp with pendant – value approximately $5,200;

(d)   19 x 22 carat gold bangles – value approximately $51,200;

(e)   one set of 22 carat gold earrings – value approximately $1000;

(f)    one 22 carat necklace with gold coin and chain – value approximately $1,900;

(g)   one ‘turkiye cumhuriyeti 1923’ gold coin – value approximately $3,850; and

(h)   four thin 22 carat gold coins – value approximately $6,000.

13In mid to late August 2020, Cigdem Aslan wanted to confirm how much money she had in the safe, as she was considering assisting her children to purchase a factory.

14She unlocked the safe in the garage, took the money out and took it to her bedroom to count. She counted $300,000 cash, and stored it in bundles of $10,000 secured with rubber bands. She then placed the bundles of cash into a green Aldi brand bag with a tea towel over the top to conceal the money. She returned the money in the Aldi bag to the safe and placed it on top of another Woolworths brand bag. The Woolworths bag contained the jewellery belonging to Cigdem and Serap Aslan.

15On 10 October 2020 Cigdem Aslan returned home from assisting the family store at the Prahran market. She wanted to put some money in the safe, so collected the safe key from the bedside table.

16Upon unlocking the safe Ms Aslan immediately noticed the green Aldi bag was flatter than it had been. She saw that the money was gone. She called her daughter Serap to come over and they found that jewellery had been stolen.

17Ms Aslan’s son Serkan attended and counted the money remaining in the Aldi bag. There was $50,000 still in the bag; $250,000 had been stolen. He removed the remaining cash from the Aldi bag and took it to his house for safekeeping.

18Serap Aslan phoned Mill Park police station and reported that a theft had occurred.

19The following day, 11 October 2020, Detective Senior Constable Brown and Senior Constable Angus attended Cigdem Aslan’s home and observed no signs of forced entry. Following police attendance, Serkan Aslan installed a CCTV camera in the garage. The camera operated on motion detection, with each activation sending Serkan a notification to his mobile phone.

20On 9 November 2020 at about 11.20am Serhat Aslan received a notification alerting him to motion in the garage. He accessed the software in his laptop and observed on the footage you enter the garage from the house. He observed you look around the ceilings before leaving the garage. About four minutes later Serhat Aslan received a further notification. He observed you on the CCTV footage take a key from your pocket and use it to open the safe in the garage. You knelt and took out the green Aldi bag, rummaging through without taking anything as there was nothing in there. You then closed the safe and left the garage.

21Serhat advised Cigdem and Serap Aslan of what he had observed. He and Serap attended Mill Park Police Station and produced the CCTV footage to police.

22On 6 February 2021, Serap Aslan was shown a video that was filmed on 24 February 2020 by a mutual friend. The video and photos showed various females, including you, showing off their gold. Serap observed you were wearing Cigdem’s gold necklace and Serap’s gold bangle.

23On 19 November 2020, a search warrant was executed at your home address. You made some admissions under caution at your home shortly after being arrested. You then pointed out the locations of the money stolen and items purchased with stolen funds whilst being video recorded by Detective Senior Constable Gaffney.

24Police searched the house and located the following stolen cash amounts:

(a)   $40,000.00 made up of four bundles of $10,000.00 in $50.00 and $100.00 notes of Australian currency in a safe in the master bedroom; and

(b)   A further $139,300.00 made up of 14 bundles of $50.00 and $100.00 notes of Australian currency under the bed of your son.

25Stolen jewellery belonging to Cigdem and Serap Aslan was located in a black cash tin and more jewellery in boxes in the safe.

26You pointed out items that had been purchased with the victim’s stolen money (led as context) as follows:

(a)   a gold bangle purchased for $10,100;

(b)   a gold necklace;

(c)   a safe;

(d)   a deposit receipt in amount $7000 for purchase of a new Nissan Navara 4WD;

(e)   an Apple iPad Pro;

(f)    an Apple Airpad Pro;

(g)   a GHD hair dryer and curler; and

(h)   cupboard/double bedhead/robot vacuum/hose reel.

27You were arrested and interviewed. A summary of that interview is provided in the prosecution in opening in some detail, however in the interview you admitted stealing the money and the jewellery. You had seen Cigdem Aslan put the key to the safe in a drawer while you were cleaning which you later used to open the safe. You stated that you purchased items for your children, paid off a debt, and bought items including an iPad, jewellery, furniture and a vacuum cleaner. You also bought a new Nissan Navara and deposited $5000 and $5200 into your children’s respective bank accounts.

Nature and gravity of the offending

28It is self-evident that your offending represents a gross breach of trust. You were a trusted friend of the victims family. That trust had built over a number of years through the Turkish community and you had, at the time of the offending been cleaning the home of the victim for some three and a half years. Your crime was calculated and planned and, given your admissions in the record of interview, your offending was purely based on a desire to improve your own financial position. In short, your motivation was greed. With that motivation, you stole from an elderly woman who described the money you stole as ‘a lifetime of savings of both my late husband and me’.

29Your explanation to psychiatrist Associate Professor Andrew Carroll only confirms your motivation when you stated to him that ‘the kids want 10 things, I can only provide for two’ and that ‘the kids really wanted a car’.

30In my view your offending can only be described as a serious example of theft.

Victim impact statements

31Three victim impact statements were tendered and read on the plea.

32Cigdem Aslan, the primary victim, is 74 years old and as noted above, what you stole was her life savings. Ms Aslan states that she treated you like a daughter and initially had no reason to suspect you as the thief. She notes that she has lost trust in many people, has withdrawn from social gatherings and now prefers to meet friends outside of her home. She feel anxious and fearful in her own home.

33Serap Aslan, Cigdem Aslan’s daughter, read her own victim impact statement and that of her mother at the plea hearing. Ms Aslan describes the significant impact your offending has had on her and her family. She too finds that her trust in others has diminished. She states that prior to the offending you were a close friend, that you were both heavily involved in the community and that your children would play together. Ms Aslan clearly has been impacted by the observable effect your crime has had on her mother.

34The third victim impact statement was from Serkan Aslan, the youngest son of the family. He recounts the immediate effect of your crime on his mother once she realised what had occurred. He feels guilt that he was unable to protect his mother from the crime. He states that what he is most angry about is that you were able to come into the family home which he considered to be a safe sanctuary built by his father, and feels that as such your crime was not only committed against his mother, but the whole family.

35I take the contents of the victim impact statements into account.

Personal Circumstances

36You are currently 44 years old. You are a single mother of two children, aged 14 and 10. You were born in Turkey, and you report that when you were growing up your father was verbally and physically abusive, and he left to come to Australia when you were around 9 or 10 years old. The family struggled after he left.

37When you were around 13 years old you were raped by your physical education teacher. The incident was never reported, and you moved schools. You later ‘dropped out’ of junior high school.

38When you were 16 years old your father sponsored you, your mother and your siblings to come to Australia. You enrolled to learn English at a TAFE, however you report that your father decided you should work instead, and you stopped attending the course. You worked in various factories and your father kept your income. You report your father demanded money from the family for his drinking and personal entertainment, and would become violent if he was refused.

39When you were around 20 to 21 years old your father demanded you provide house cleaning and child minding services to someone he owed a debt. In the course of this arrangement you were raped by the man you were working for. You report you were too scared to go to the police, because the perpetrator threatened to tell others that you had a relationship with a married man.

40When you were 26 years old you travelled to Turkey and you were married in April 2006. Your husband had an accident two months into your marriage, falling from a second floor building while working as a plasterer. After this accident he worked inconsistently and you became the main provider for the family.

41Your husband attempted to set up his own plastering business, going into debt to buy equipment. When the business closed after two years, you and your husband were left with debt. Around this time you started to work as a cleaner. You and your husband then bought a cleaning franchise, which failed, leading to further debts. Your husband declared bankruptcy, however most of the debt was on credit cards in your name, and hence you remained liable. Your marriage broke down after five years, shortly after the birth of your second child.

42In December 2021 your daughter was diagnosed as suffering Anorexia Nervosa. In a recent but undated letter provided to the court, Dr Andrew Court, consultant psychiatrist at the Royal Children’s Hospital, states that your daughter’s current diagnosis is that of Atypical Anorexia Nervosa, together with a comorbid major depression and generalised anxiety. She is undergoing family based treatment that requires her to consume three regular meals and three regular snacks every day. You are involved in preparing the meals as well as supervising your daughter to prevent her engaging in behaviours such as induced vomiting. This treatment is anticipated to continue for some six months. Thus you play an important role in your daughter’s current treatment regime. Dr Court opined that given your daughter’s current fragile mental and physical health status, he holds serious concerns about her ability to achieve recovery if you are not available to provide the required support.

43Associate Professor Andrew Carroll, consultant forensic psychiatrist, prepared a psychiatric report, dated 11 November 2021. Dr Carroll outlines the findings of a mental state examination and interview with you on 9 November 2021. In Dr Carroll’s view you present with a Major Depressive Episode with anxious distress of a moderate severity, the onset appearing to have followed your arrest. At the time of the offending, Dr Carroll opines you were likely suffering with a low-grade chronic Persistent Depressive Disorder and while Dr Carroll could not identify a direct causal relationship between the offending and your disorder, in his view mental health factors played some role in explaining a first offence by you in your middle age.

44You reported to Dr Carroll that underpinning the offending were chronic feelings of inadequacy as a mother and provider for your children and on the background of chronic feelings of shame and inferiority in the context of your childhood trauma and marital breakdown. You admitted to feelings of temporary pleasure at being able to finally provide for your children in the way you wanted. You conveyed to Dr Carroll a strong sense of shame and regret, and expressed particular concern about the impact on your children. Following your arrest you reported to Dr Carroll that you attempted suicide taking an overdose of tablets, having first looked for rat poison. You were treated at the Northern Hospital for two days and referred to a psychologist.

45Dr Carroll opined that imprisonment is very likely to weigh more heavily on you than it would a person of normal health and further, that there is a serious risk of imprisonment having a very significant adverse effect on your mental health.

46A report of Ms Aliye Akarsu-Atakan, clinical psychologist, dated 24 November 2021 was also tendered on the plea. Ms Akarsu-Atakan has treated you since January 2021. Testing by Ms Akarsu-Atakan showed scores that fell within the extremely severe range for depression, anxiety and stress, diagnosed as Adjustment Disorder with Mixed Anxiety and Depressed Mood. Ms Akarsu-Atakan states that you have gained insight into what drove your offending and that you have engaged in therapy to overcome these feelings of inadequacy and low self-esteem. Ms Akarsu-Atakan is also of the view that imprisonment would be detrimental to your mental health.

47Dr Negibe Mankir, consultant psychiatrist, provided a report dated 9 February 2022. Dr Mankir has treated you an a fortnightly basis since November 2021 and for the purpose of writing his report, had the benefit of the reports of Dr Carroll and Ms Akarsu-Atakan. Dr Mankir has been managing your medication and has provided you with supportive psychotherapy. He is of the view that you require ongoing psychotherapy and that you may require a further admission into hospital if you deteriorate. He is of the opinion that if you were given a custodial sentence, the mental health of both you and children would deteriorate and specifically, that your daughter would become particularly vulnerable and at risk.

48Three character references were tendered from Metin Arpaci, your brother in law, Aysel Geyik, a long term friend and Basak Gel, your younger sister. Each reference speaks of your otherwise good character and the impact your offending has had on your mental health. Ms Geyik states that you are extremely ashamed of yourself, while your sister states that you deeply regret your actions, that you feel great remorse and that you feel extremely sorry for the harm you have caused the victim, acknowledging that she is an elderly woman.

Sentencing considerations

49Mr Smallwood who appeared on your behalf, highlighted a number of matters to be taken in to account in mitigation. Turning first to your plea of guilty. You conducted a contested committal in this matter however the case did not proceed to trial and came before me for a sentence indication hearing on 9 March 2022.  Your plea has significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. Further, over and above the plea of guilty, in my view you have taken significant steps in addressing your core mental health issues, you have developed insight into your offending and you have expressed a degree of genuine remorse.

50In the current circumstances, the plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

51At the time of the plea hearing, you had made full restitution to the victim. While the jewellery and a large amount of the money was recovered upon your arrest, you have now returned the full amount of money to the victim. This in my view is a significant matter in mitigation.[2]

[2] Attorney-General v Saunders [2000] TASSC 22 at [7].

52Turning to Verdins principles, it was submitted on your behalf that general deterrence is able to be moderated when consideration is given to your mental health concerns. While in my view the evidence does not support a realistic connection between your offending and your likely depressive disorder at the time of the offending, it is clear that your mental health deteriorated significantly following the offending which is ongoing. As such, in my view your mental health concerns have become more relevant now at the time of sentencing, and therefore in my view Verdins principle three is enlivened to some degree.

53As to Verdins principles five and six, the unchallenged expert evidence confirms that any term of imprisonment would be more burdensome for you and that your mental health would more than likely deteriorate in such circumstances, thus enlivening the Verdins considerations five and six. I accept that these principles should be given weight in the sentencing discretion.

54As to your prospects of rehabilitation, you come before the court at age 44 with no prior convictions and no subsequent or pending matters. You have support in the community and you are very committed to your children, one of whom requires your constant care and attention in order to assist her with her own mental health condition. Further, you have actively sought professional help since your arrest and are addressing some of the core issues that led you to this offending. In my view in all the circumstances your prospects of rehabilitation are very strong.

55As to your daughter’s serious mental health condition, and your significant role in her treatment, while not amounting to an exceptional circumstance, it is in my view a relevant matter that I take into account.

56Turning to other sentencing considerations. While general deterrence is able to be moderated to some degree due to your ongoing psychological conditions, it remains the paramount sentencing principle in this instance. Your offending occurred in the home of an elderly woman who had built a trust with you over some years and treated you as a member of the family. A message must be conveyed that your conduct must be deterred. For similar reasons, your offending is to be denounced. As to specific deterrence, given the impact your offending and the criminal process has had upon you and your family, in my view specific deterrence need not carry weight in the circumstances.

57It was conceded by your counsel at the outset that a crime of this nature would ordinarily warrant a term of imprisonment, which is undoubtedly correct. However, it was submitted that in all the circumstances the applicable sentencing considerations are able to be achieved without the imposition of a custodial sentence. In support of that submission, Mr Smallwood highlighted what the Court of Appeal noted in Boulton v The Queen that a community correction order ‘may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.’ [3]

[3] (2014) 46 VR 308 at [131].

58More recently, in Williams v The Queen,[4] Priest JA and Hargraves JA said as follows:

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[5]

[4] [2018] VSCA 171.

[5] At [47].

59I had you assessed for a community correction order and you have been found suitable. The assessment report notes that you are a low risk of reoffending.  As part of that assessment you were also assessed by the Mental Health Advice and Response Service at the County Court. In that report the clinicians recommended that you receive ongoing assessment and treatment as a condition of any community correction order.

60In my view while your offending is serious, in all the circumstances a community correction order is able to meet the relevant sentencing considerations in this instance.

Sentence

61Ms Kilic, will you please stand.

62Mehtap Kilic, on Charge 1, theft, you will be convicted and placed on a community correction order for a period of 4 years.

63The community corrections order will have both punitive and therapeutic components. You will be required to complete 350 hours of unpaid community work and engage in programs to enable you to further address your mental health concerns.

64Pursuant to s 48CA of the Sentencing Act1991 (‘Sentencing Act’), I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.

65Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 8 months imprisonment, together with a community correction order. 

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