Director of Public Prosecutions v Kocak

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01449

DIRECTOR OF PUBLIC PROSECUTIONS

DURAN KOCAK

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	DPP v Kocak
MEDIUM NEUTRAL CITATION:	[2021] VCC 2147

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:              Plea of guilty – one charge armed robbery – related summary offence of committing an indictable offence whilst on bail – circumstances of COVID-19 pandemic
Legislation Cited:      Bail Act 1977; Crimes Act 1958; Sentencing Act 1991; Criminal Procedure Act2009
Cases Cited:Boulten v The Queen (2014) 46 VR 308; DPP v Malikovski 2010 VSCA 130; R v McLaughlin [2016] VSC 189; R v Verdins [2007] VSCA 62
Sentence:                  Total effective sentence of 139 days’ imprisonment with a 40 month Community Corrections Order and $400 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Patterson	Office of Public Prosecutions
For the Accused	Mr C. Pearson	George W. Vassis & Co

HER HONOUR:

Plea of guilty and maximum penalties

Duran Kocak, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to the related summary offence of committing an indictable offence while on bail, which carries a maximum penalty of three months' imprisonment or 30 penalty units.
Circumstances of offending
The circumstances of your offending are set out in the summary of prosecution opening dated 11 January 2021. This became Exhibit A on the plea, and that document forms part of, and is attached to these reasons. I will not repeat it all here, but summarise just parts of it.
Charge 1: armed robbery
At 3.45 am on 13 December 2019, Mr Hapreet Singh, who was working as a ride share driver, received notification of a DiDi fare from you under the name of 'Duran' to pick you up at the Sugar Gum Hotel in Hillside. The details of the notification included your mobile number and address.
Mr Singh arrived at the hotel at about 3.50 am. You got in the front passenger seat. You complained about an earlier car you had requested that had not arrived. At some point into the journey, you cancelled the DiDi fare and Mr Singh could no longer see the drop off location. You requested that Mr Singh drive under your navigation.
During the journey you produced a silver flick knife approximately 15 to 20 centimetres in length when extended. You said to Mr Singh that the knife would go through his heart or stomach if he did not do as you said. You directed Mr Singh to drive, including a direction to drive over what he described as a traffic island or median strip.
You directed Mr Singh to drive to Park Lane in Taylors Hill and told him to stop the car. Mr Singh took off his seatbelt and planned to run away. You told him not to do that and that you wanted his phone, credit cards, and cash.
You told Mr Singh you had a gun (this was false) and that you wanted to go to a different address. You directed him to Loddon Drive, also in Taylors Hill. You repeated your demand for money, credit cards, and Mr Singh’s phone.
Mr Singh produced his wallet and pushed it so that it fell to the floor of the car. As you reached for it Mr Singh ran away. You called after him that you were going to shoot him. While running away, Mr Singh's Achilles tendons were hurt (later both tendons were found to be ruptured) and he fell to the ground. Mr Singh hid behind a tree and called police.
Police used the information in the DiDi application to find your home address and mobile phone number. They also reviewed CCTV from the hotel and saw you getting into the car. Police executed a search warrant at your home at 11.30 am the same day. You were not home, but the police arrested you nearby and took you back to your house for the execution of the search warrant.
During the search you admitted to hiding Mr Singh’s wallet in a VCR player in your room. Police removed some screws and found it.
You took part in an interview with police. You told them you had become paranoid while waiting for the DiDi car at the hotel. You had, you said, an unpleasant exchange with a group of people before you left. You told police that you thought the DiDi driver, Mr Singh, was somehow connected with the group of people at the hotel. You agreed that you had a weapon with you but denied threatening or robbing Mr Singh. In essence, your responses were to either deny or to minimise your conduct.
Summary Charge 4: commit indictable offence whilst on bail
As a consequence of committing this offence, you breached a bail order that you were then subject to; this gives rise to the summary charge of committing an indictable offence while on bail.
Procedural Chronology
As I have already said, this offending took place on 13 December 2019 and was detected on the same day.
You were remanded in custody and a filing hearing was conducted on 17 December 2019. There was a case conference on 6 March 2020.
You were granted bail on 29 April 2020. A committal was conducted on 5 November 2020, and Mr Singh was cross-examined. A plea offer was made in March 2020 but was rejected.
As I said, you were committed for trial on 5 November 2020. Very few trials were conducted in this jurisdiction during 2020 and 2021, and yours was not among them.
On 3 December 2021 I heard an application pursuant to s 207 of the Criminal Procedure Act (Vic) for a sentence indication on the single charge on this indictment. A pre-condition to the making of such an application is the consent of the Director of Public Prosecutions, which was given.
At the conclusion of the hearing I indicated that if you were to plead guilty, I would not impose a further sentence of imprisonment to be served immediately. In doing so I adopted the reasoning of Justice T. Forrest in the case of R v McLaughlin [2016] VSC 189; the phrase 'a sentence of imprisonment that commences immediately' must be taken to carry with it the practical consequence that, upon sentencing, the person who has pleaded guilty will be actually imprisoned from the time of sentence and extending into the future.
Soon after your sentence indication hearing on a positive indication, on 7 December 2021 the matter was listed for mention and you instructed your lawyers that you wished to enter a plea of guilty to the charge of armed robbery on the indictment.
I pause here to note that before you were arraigned on 7 December 2021, I made it clear to your representatives that although I was indicating I would not impose a further sentence of imprisonment on you, you would, on a plea, become liable to a very significant term in the community under a Community Corrections Order, which would have very significant punitive aspects attached to it.
Your counsel submitted that you understood this and you were then arraigned and pleaded guilty to the charge on the indictment.
Further, your counsel submitted that you 'unreservedly accept the facts as set out in the prosecution opening.'
Personal circumstances
You are now 35 years old. You were 32 years old at the time of committing these offences. You are one of two children to your parents' marriage. Your mother is of Cypriot heritage and your father of Turkish heritage. You have an elder sister, Zelhia, with whom you maintain a good relationship. Your family are observant Muslims though not particularly devout.
You are not currently in a relationship, although you did have one for five years in your 20s, which you describe as 'ending badly'.
You were born in Australia and attended school to the end of Year 11. You said you were bullied at school for being 'tall and not smart'. During secondary school you were often suspended for ‘fighting or not listening’.
Your parents ran a restaurant during your childhood, and therefore you saw your parents little in the evenings but were raised with the care of your paternal grandparents, your uncle and his children. There were 13 of you, and you say you got along well.
After you left school you did a year’s work with a mechanic but you did not take to this work. You then worked with your father in carpentry for two years and had a range of inconstant work in factories, driving forklifts since that time. You say that you get bored easily.
Since being granted bail, however, you have worked as a plasterer full time with your brother-in-law for approximately one year.
Your most recent adult relationship ended in August 2019, shortly before this offending. You described being beaten by this woman's former partner who, according to you, took objection to your relationship, and to you standing in the role of parent to this woman's child. I will return to these events and consider the report of Carla Lechner.
Nature and gravity of the offending
I am obliged to assess the nature and gravity of your offending and your moral culpability for it. Armed robbery is an extremely serious offence indicated by the maximum penalty of 25 years' imprisonment that Parliament has attached to it.
I see your offending as a serious, if unsophisticated, version of armed robbery. Its seriousness is derived from the protracted nature of your threats to Mr Singh, which took place across the distance of approximately a kilometre, a journey estimated to have taken something in the range of 10 minutes (Mr Singh arrived, I note, at 3.50 am, and called police at 4.09 am). Your threats involved the production of a knife, the offensive weapon named in the charge. You also referred to a gun, which of course you did not have with you, but this would nevertheless have been terrifying for Mr Singh. This was not a momentary threat; it extended over time. It involved threatening with a knife.
Your offending was also unsophisticated. You identified yourself through the rideshare app by name, address, and phone number as you stepped into Mr Singh’s car. From this I interpret that your acts took place with little or no planning. It was somewhat chaotic in that your intention, once in the car, did not even seem to be particularly clear. You were always going to be detected.
Once apprehended you both minimised your conduct and made certain denials of matters that you have now, by your plea, admitted. However, you also assisted police with locating Mr Singh’s wallet, a piece of evidence that you must have understood was highly incriminating. Your minimisation of what you did seems to have persisted to some extent, and is revealed in some comments made to the assessing psychologist nearly two years later in April 2021. Your barrister described your understanding of what happened as 'frail'. I will return to this later in my sentence.
Mr Singh was a rideshare driver, doing his best to earn his living at 3.50 AM driving a ride share car in an outer suburb of Melbourne. He was an easy, or soft target for you. You held all the cards. It was cowardly and contemptuous behaviour.
Victim impact
I am obliged to take into account the impact of your offending on your victim. I understand Mr Singh was advised of his right to make a victim impact statement but chose not to do so. Nevertheless, I conclude that this experience was utterly terrifying for him. I do not know what effect, if any, your offending had on Mr Singh's ability to continue to work as a rideshare driver; I think I can safely assume that at the very least your conduct added to his already difficult task of driving other people around alone at night. He should never have been put in this position by you.
On your plea, the prosecution did not press me to consider the injuries to Mr Singh’s Achilles tendons sustained by him in the course of these events but not foreseen or intended by you, so I set this information aside.
Criminal Record
Turning now to your criminal record. You have admitted a very limited prior criminal history. In 2012 you were found guilty of minor drugs possession charges, though I note the charge of possessing a controlled weapon without excuse. In any event the Court imposed, without conviction, fines on both occasions.
It was not until 2019 that you returned to Court where you were dealt with for 32 shop thefts. I was told these were thefts of petrol conducted by your driving off. That time the Court imposed a Community Corrections Order on you for a duration of 14 months. I understand that a breach of that order may still await you.
The bail that you were on at the time of the commission of this offence was in relation to that CCO breach. You were charged on summons but did not attend Court. A warrant was executed and you were bailed. That is the background to Summary Charge 4.
Overall, I find that your prior history is of little relevance to your sentence on this charge, an offence in an entirely different and more serious category; though I note the offending in 2019 suggests that your life at that point was reaching some sort of crisis, and I will return to that shortly.
Matters in mitigation
Plea of guilty
Turning now to matters in mitigation. First, your plea of guilty.
At any time your plea attracts a significant discount on your sentence; but at the moment, when the administration of justice in Victoria has been so hampered by the COVID-19 pandemic and where a very significant backlog of trials await hearing, your plea must attract an additional and significant benefit.
I make it very clear that were it not for this latter factor I would have imposed a much more severe sentence and it would have probably changed the form of the sentence too.
Psychological material
Turning to psychological material. On your plea your barrister tendered the report of Carla Lechner, dated 27 April 2021.
After describing your background and substance abuse history, Ms Lechner concludes that you present with symptoms of stimulant use disorder currently in remission, post-traumatic stress disorder and major depressive disorder.
Ms Lechner notes that you began using cannabis at 18 or 19 and you commenced regularly using that drug. You started your use of ice at 25 but ceased after undertaking a rehabilitation program. Significantly, you relapsed again into ice use up to the time of your imprisonment on this offending. In your account to Ms Lechner, you told her that you were using up to 1.7 grams of ice a day. You were also using synthetic cannabis and told Ms Lechner that both ice and synthetic cannabis lead you to exist in a state of intense paranoia.
This was the state that you had put yourself in prior to committing the armed robbery.
Symptoms of post-traumatic stress disorder were noted and attributed to the assault you had been subjected to in 2019. No particular causal connection was suggested between the symptoms and your offending, and your barrister did not press Verdins considerations.
I have taken the content of the Lechner report into account in general terms, putting your personal circumstances into context and taking the matters in it into account in considering the appropriate duration and content of the Community Corrections Order. No causal link between the symptoms Ms Lechner observed and the offending were urged on the Court.
I take into account also the delay in this case. It has been the background to your life for two years now. You have used your time on bail well. Awaiting the resolution of your case would have caused you significant stress and I take this into account as additional punishment.
Prospects of rehabilitation
I must assess your prospects of rehabilitation.
When you were released on bail, your conditions were strict, and you complied with them.
You clearly have powerful family support. You are close with your sister, who maintains her affection for you. Your father, Mr Muslim Kocak, gave powerful evidence on your sentence indication hearing. He spoke of the trouble in your history, and that since your release from custody on bail there had been a '100 per cent change' in your behaviour. He said that in the past he has been able to tell when you were using drugs, but in this more recent period, of approximately nine months, he has seen no such signs at all. Your father said that he sensed you had been scared by being imprisoned. He talked about his enduring support for you. He has funded your admission to private rehabilitation in the past. He said you are always welcome in his house while you are not using drugs. He spoke about his visiting you regularly in gaol, even when you were moved from Deer Park to Sale. Your father gave evidence that he will support you 'until [he] dies'.
No one could come to Court with greater family support than you have. Your family have displayed affection, persistence, and clearly have a realistic understanding of your difficulties. If you are able to reflect that level of support in your continued recovery, you will succeed.
I note that you were released on bail on 29 April 2020. It was your first term of imprisonment, and your barrister submitted that this was a shocking and terrifying event for you. You were in custody, I note, during the initial, anxious period of restrictions in the context of the pandemic. So much was unknown then, and to be in custody at that time would have been particularly burdensome.
That bail continued until your committal to this Court on 5 November 2020. During that time you were subject to strict conditions, including a curfew (10 pm to 6 am) and you were obliged to provide urine screens on a weekly basis - and you complied.
You have now been on bail for nearly 20 months. During that time you have demonstrated your capacity to remain substance free and to engage in full time employment. You have worked as a plasterer for your brother in law’s business since being bailed, and since restrictions have eased this has meant a 5-6 day working week for you.
I have considered the minimising of the offending that you have indicated in your discussion of the offending with the psychologist. Your approach seems to be a mixture between admissions (your plea, assisting police find the wallet) and minimisation and denial. You have expressed feelings of remorse. You have expressed an understanding of the trauma you have imposed on Mr Singh. I accept that some elements of remorse inheres in your plea.
It appears that you have underlying mental health problems and substance abuse issues with methamphetamine, synthetic cannabis and possibly alcohol. I note that treatment for gambling was indicated in the past. Now is the time to address these issues and what underlies them.
Having established your rehabilitation thus far in an enduring way, notwithstanding your equivocal comments in the CCO assessment I regard your prospects of rehabilitation as good.
CCO assessment report
After your sentence indication hearing and arraignment, I requested a pre-sentence report for your suitability for a Community Corrections Order. You are assessed as unsuitable for such an order. You said things to the assessor that caused them to think you had no real intention, and therefore no real capacity, to complete a Community Corrections Order. Statements made in this vein to the Community Corrections Assessor were both naïve and concerning.
I note again that on 7 December 2021, prior to your arraignment and your pleas of guilty being entered, I stated clearly to you that any Community Corrections Order would be of lengthy duration (lengthier than any prison term) and contain significant punitive aspects. You were represented by a solicitor. He confirmed your wish to enter a plea of guilty in those circumstances, and you immediately pleaded guilty on arraignment.
At the plea hearing conducted subsequently your barrister tendered a letter, signed by you, in which you attempt an explanation for the otherwise rather damaging things that you said in the CCO assessment. In it you write:
'Mr Pearson has also explained to me that if I don’t want to do a CCO I should tell you and then I can go to jail. I will do the CCO. I know that there are things that I need to do with my life so that I don’t end up in this mess again. I don’t want to go back to jail because I hated it the first time around…
I’m trying to focus on paid work at the moment but I know that if I don’t make time for the CCO I’ll go back to jail. My brother-in-law and his work partner know all about my problems and they’ll give me time off work to do the CCO'.

That is what you wrote in the letter. It seems that each time you talk about the offending you minimise or try to excuse what you did. Were it not for the progress that you have demonstrated over the 20 months since you were granted bail it would be very difficult to conclude that you were sincere about your desire to change your path.
Your counsel submitted that your employer (who is your brother-in-law) is understanding and will accommodate your commitments under the CCO.
Subsequently a mental health report dated 15 December 2021 was obtained and provided to the Court. The content of that report is somewhat more optimistic about your attitude, describing you as ‘future focused and help seeking’, and notes your serious need for further mental health treatment.
Current sentencing practices
I have also had regard to current sentencing practices for the charge of armed robbery. No case is exactly like yours, but I sentence you in this landscape, and I take those cases into account.
Relevant sentencing principles
I am obliged to sentence you in a way that deters other people from behaving in a similar way. I consider that general deterrence is a very important factor in this case, in particular to deter people from putting vulnerable workers at risk in the course of their work. Moreover, you must be punished for what you did, and this sentence must deter you from behaving in a similar way again in the future. Through me and this sentence the community denounces your offending. I must also regard the protection of the community in imposing this sentence. Balancing these competing sentencing principles in your case has not been easy, particularly in circumstances when I regard your sustained rehabilitation as being key to protecting the community from further offending by you. As the Court of Appeal said in the case of Boulten:
‘Even in cases of relatively serious offences, which would previously have attracted a medium term of imprisonment, such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and, in some rare and exceptional circumstances, homicide, the sentencing Court may find that a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation'.[1]
69Ultimately, after some anxious consideration, and in a finely balanced sentencing exercise, I find there is a strong community interest in your rehabilitation being sustained and not ruptured by further imprisonment. As President Maxwell said in the case of DPP v Malikovski:
'In what continues to be a highly punitive debate about sentencing, it seems to me that this Court needs to promote public understanding of the fact that, quite apart from the interest of the individual whom it is sought to rehabilitate, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime. The prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in violent behaviour. I am quite aware of the need for general deterrence and will construct a lengthy community corrections order accordingly'.[2]
[1] Boulten v The Queen (2014) 46 VR 308, 131.
[2] 2010 VSCA 130 at [51].
Disposition
70Duran Kocak, on Charge 1: armed robbery, you are convicted and sentenced to a period of imprisonment of 139 days and a Community Corrections Order of 40 months' duration. In relation to summary Charge 4, committing an indictable offence while on bail, you are convicted and fined $400. This results in a total effective sentence of a period of imprisonment of 139 days, a Community Corrections Order of 40 months, and a fine of $400. I declare that 139 days of pre-sentence detention has already been served pursuant to this sentence and is to be deducted administratively.
71I further declare that pursuant to s6AAA of the Sentencing Act 1991 had you not pleaded guilty but been found guilty after trial, I would have imposed a sentence of three years' imprisonment with a non-parole period of 18 months.
72You will first be subject to the standard conditions of a CCO. That means that you must not commit any other offences that are punishable by imprisonment during the 40 month period.
73You must report to the Sunshine Community Corrections Service within two days of today by telephone. You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
74It is a term of all Community Correction Orders that you must submit to visits as directed, and you must obey all of the instructions and directions of the community corrections officer. You are not able to leave the state of Victoria without their prior permission and that is for the entire 40 months.
75The following are the special conditions that I will attach to the order:
76You will be required to complete programs to further address your drug use and alcohol use.
77You must report for supervision with your case manager when they require it.
78You must submit to assessment and treatment for alcohol and drug dependence.
79You are required to submit to mental health assessment and treatment.
80I require you to perform 250 hours of unpaid community work over the term of this order, but pursuant to s48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours.
81I also require you to participate in judicial monitoring.
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[2021] VCC 2147

16 December 2021