Director of Public Prosecutions v Kumru
[2015] VCC 195
•23 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01443
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| HAKAN KUMRU |
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JUDGE: | His Honour Judge Murphy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2015 | |
DATE OF SENTENCE: | 23 February 2015 | |
CASE MAY BE CITED AS: | DPP v Kumru | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 195 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Hogan | OPP |
| For the Accused | Mr Watson | Doogue O’Brian George |
HIS HONOUR:
1. Mr Kumru, you have pleaded guilty to one count of armed robbery and two summary counts of driving whilst disqualified and driving whilst your blood alcohol content exceeded the prescribed limit.
2. The complainant in the armed robbery was Mr Kiani. The offences all occurred on 18 April 2014. The maximum penalties for the offences are set out in the Crown opening, which I incorporate by reference. The circumstances of the offences were also set out in the Crown opening, which was read in open Court and which, again, I incorporate by reference.
3. In brief summary, the complainant, Mr Kiani, was driving his car in Walsh Street, Coburg. He stopped his car and you approached him, pulled a knife and demanded that he get out of the car or you would stab him. He felt threatened and scared and jumped out of the car and ran to the police. You then jumped in the car and drove the car down Sydney Road – you were delicensed at the time – at a fast rate of speed, did a U-turn and then drove into a bottle shop in Boundary Road.
4. The police arrived and arrested you, and you smelt of alcohol and, subsequently, you were found to have had a blood alcohol count in excess of the prescribed limit. You indicated that you intended to plead guilty to these charges at the committal hearing and you have been in custody since that time.
The Seriousness of the Offences
5. The offence of armed robbery is a serious offence and, in your case, your conduct in stealing a car at knife point perpetrated on an innocent motorist must have been very frightening for him. He was in a vulnerable position and you forced him out of his car at the point of a knife. Following this, you drove off whilst delicensed and under the influence of alcohol.
6. As the learned prosecutor indicated, an aggravating feature of this offending was that three weeks earlier you had been before the Magistrates Court for the offence of making a threat to inflict serious injury and had been placed on a community-based order. Your offending breached this order as well as an earlier order imposed on 31 October 2013, which included an offence of burglary and intentionally damaging property. Thus, these are significant aggravating features of your offending.
7. In addition to that, you had a significant number of prior convictions as set out in the Criminal Record. You were aged 30, and your first offence in your adult years was for robbery and stating a false name and you were sentenced to a six month suspended sentence. These offences occurred on 18 February 2004. On the day before you were also dealt with for obtaining a financial advantage by deception.
8. And you were subsequently before the Court on 28 April for driving whilst disqualified – three charges – and sentenced to an aggregate sentence of four months imprisonment, again, suspended.
9. On 28 February 2005, you were before the Broadmeadows Magistrates Court for breaching that suspended sentence but no orders were made. Although the breach was found proven and the Court record indicates the reason why it was not activated that you had been able to obtain employment and demonstrated prospects of rehabilitation.
10. On the same day, on charges of intentionally causing injury, criminal damage, driving whilst suspended – two counts – and using an unregistered motor vehicle and careless driving, you were sentenced to six months imprisonment, as an aggregate sentence, to be served by way of an intensive corrections order.
11. On 6 June 2006, on counts of driving whilst suspended, driving over the speed limit and using an unregistered vehicle, you were sentenced to three months imprisonment concurrent, again to be served by way of an intensive correction order.
12. On 9 July 2007, on three counts of driving whilst suspended, one count of intentionally causing injury and failing to give way, failing to wear a seatbelt and driving without P plates, you were fined on those latter three charges and your licence was suspended for 12 months. But on the principal charges, you were sentenced to an aggregate sentence of 15 months imprisonment and disqualified for driving for 12 months.
13. You took that sentence to this Court and the appeal was allowed and the orders were set aside and you were sentenced to an aggregate sentence of three months imprisonment.
14. On 11 December 2007, at the Broadmeadows Magistrates Court for failing to comply with the ICO and driving whilst suspended, the breach of the intensive correction order was confirmed.
15. On 17 April 2008, on the charge of trafficking ecstasy, you were sentenced to four months imprisonment suspended for 12 months and dealing in proceeds of crime an aggregate sentence of four months imprisonment suspended for 12 months.
16. On 13 July 2012, on driving whilst suspended – two counts – and failing a fluid test, you were convicted and placed on a community-based order for 6 months and your licence was cancelled for six months.
17. On 31 October 2013, on contravening the community-based order and driving whilst suspended – two counts – you were resentenced and convicted and fined $1000.
18. As I have indicated, on 31 October 2013, you were before the Broadmeadows Magistrates Court and on counts of driving whilst disqualified you were sentenced to a 12 month community-based corrections order, burglary, 12 months community corrections order, intentionally damaging property, 12 months community corrections order and the contravention was also dealt with as I have indicated.
19. Then, as I have indicated, on 1 April 2014 – which is three weeks before this offending – you were placed on 15 month community corrections order for a threat to inflict serious injury and carrying a controlled weapon without excuse.
20. So you have a significant record of prior convictions and it can be seen from those convictions that some of them are drug related.
21. Your explanation for this offending was that you were under the influence of alcohol and also under the influence of methylamphetamine. Those matters – might provide an explanation but they do not provide any excuse for your conduct.
22. I now turn to matters in mitigation which were extensively canvassed by your Counsel, Mr Watson. Your personal background was set out. You were born in Australia of Turkish extraction and your mother was in Court to support you on the plea. You have a younger sister who has moved back to Turkey upon being married and your father passed away in 2005. You were at conflict with him at that stage as a result of your drug use.
23. At school you achieved year 9 and, thus, have had limited education. In evidence was a report indicating that you have an IQ of 73 putting you in the bottom four per cent of the population.
24. You have worked during your adult life, including as a labourer and also in hospitality. Between 2011 and 2012 you returned to Turkey and you were in the army for that period. After you returned to Australia, you became involved in further offending. Your mother has mental health issues and both you and her are socially isolated. She has been visiting you since you have been on remand. It is not being put that the impact on her of your imprisonment is a matter of exceptional circumstances. However, I do note that you are her carer or were before you were incarcerated.
25. On the plea, it was acknowledged that this was your most significant offending, despite you having prior convictions for violence. Your most recent term of imprisonment is a period of five months that you served in 2007. However, there was an earlier period involving a matter where you were subsequently acquitted.
26. In relation to your prior dispositions, your Counsel frankly acknowledged that you had been the subject of a variety of dispositions, a number of which you have breached. He noted that you were on a Community Corrections order at the time of this offending, and that you had not been substantially compliant with that order, and, indeed, that is still being dealt with in the Magistrates Court. He noted that a significant matter in relation to your prior dispositions is that you had not been the subject of any mental health treatment condition.
27. The central thrust of your plea was that your moral culpability for the offending should be reduced due to your psychiatric condition at the time of the offending. This submission arises out of the fact that while you were in custody in May last year you were the subject of a psychotic episode, and you were subsequently diagnosed with schizophrenia. You are now the subject of medication for that condition, but you have told the authorities that at the time that you had been hearing voices, and that those voices suggested that you should steal a car.
28. Your Counsel asked the Court to infer from the relatively bizarre circumstances of the offending and your presentation upon arrest that in fact you were under a psychotic episode. He also referred to the subsequent diagnosis of you by Dr Zimmerman that you had schizophrenia, and her opinion that you were experiencing hallucinations at the time of the offending. He also referred to your low intellectual functioning, and he submitted that it followed that there should be a reduction in your moral culpability due to your inability to exercise appropriate judgment and make calm and rational choices.
Consideration
29. Although Dr Zimmerman opines that at the time of the offending you were probably hallucinating, having considered the Crown’s submissions, I do not accept that this leads to a reduction in your moral culpability. There are other reasons that gave rise to your offending, including that you were intoxicated on alcohol and drugs, on your own admission. In sentencing you, however, I accept that your diagnosis of schizophrenia is relevant in sentencing.
30. I am satisfied that you did suffer a psychotic episode while in prison between May and August last year on remand, and that you are now on medication to address and stabilise that condition. It follows from this that your period on remand has been more burdensome than for another person with no psychiatric condition. Similarly, having considered the report of Dr Zimmerman, I am satisfied that due to your psychiatric condition you will find imprisonment more burdensome than a person without mental health problems.
31. Your mental health problems are also relevant to the type of sentence under Verdins principles. On that basis, I accept the submission, relying on Dr Zimmerman, that you would be assist by engagement with psychiatric services in the community, and on that basis your Counsel sought a longer than usual period during which you would be eligible for parole or under some form of community supervision. This is supported by the subsequent report of Dr Patel of Forensicare, which I have also considered.
Other Matters
32. I have taken into account your guilty plea. The Crown accepts that it was at the earliest opportunity. You have facilitated the course of justice and saved the need for the complainant in the matter to give evidence, as well as numerous other witnesses. In relation to your prospects for rehabilitation, I accept the submission of the Crown prosecutor that they remain guarded. You have not been the subject of a disposition that involved mental health treatment previously; in addition, your mental health condition is now being addressed for the first time with the use of medication.
33. But notwithstanding this, your ability to reintegrate into the community successfully is very much a matter that is problematic, and you will require significant support. Overall, I consider this is a case where you are at a fork in the road. You have had your underlying psychiatric condition brought under control, and you require continuing support. You have now been incarcerated on remand for nearly 12 months, and being on remand makes that period, as I have indicated, more burdensome than a sentence. I have reached a conclusion that this is a case where the interests of the community will be best served by a combination of a sentence of imprisonment and a Community Corrections order.
34. And the Court of Appeal, in the recent case of Boulton v The Queen [2014] VSCA 342, has indicated that in a relatively limited number of cases a Community Corrections order can be an appropriate disposition for offending that might otherwise require or call for a medium term of imprisonment. It is very much in the interests of the community that you be reintegrated into it under some form of community supervision that the Community Corrections order can provide. It is my intention that you be placed on a Community Corrections order when you are released from prison.
35. In sentencing you for the drink driving charges, and also for the robbery charge, I am required to cancel your licence and suspend you for a period. I do that, I cancel all licences, and disqualify you from driving for a period of two years from the date that you went into custody, namely 18 April 2014.
36. I must explain the sentence that I intend to impose on you. On the charge of armed robbery, I am going to sentence you to a term of imprisonment of 12 months.
37. I am further ordering that you be placed on a two-year Community Corrections order commencing on 18 April this year, for a period of two years, and ending on 17 April 2017. On the driving whilst disqualified and drink driving: the driving whilst disqualified, I am sentencing you to a period of six months’ imprisonment, and on the driving while exceeding prescribed concentration of alcohol, three months’ imprisonment. Those sentences are concurrent.
38. I must explain the terms of the Community Corrections order to you. There are the mandatory terms of the Community Corrections order, which commences, as I said, on 18 April 2015, provided you are free to enter the community at that stage, and is to commence when you are free to enter into the community. It depends on what the Magistrate does.
39. Now, the mandatory terms of all Community Corrections orders are that you are not to commit an offence carrying a term of imprisonment for the term of the order. You must comply with any requirements under the sentencing regulations imposed on you by the regional manager. You must report to and receive visits from the secretary or his delegate. You must report to the Community Corrections Centre within two clear working days, which means two days from 18 April, at Broadmeadows. You must also advise the Community Corrections Officer when you change your address, and you cannot leave Victoria without getting their permission. And you have got to obey all lawful instructions of the Community Corrections Officer.
40. Now, you have been on a Community Corrections order previously, so these requirements will be familiar to you. So, in addition to those core conditions, you are under supervision for a period of two years of a Community Corrections Officer. And then, as far as your treatment and rehabilitation are concerned, you must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager; undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed; undergo any mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, as directed by the regional manager; and referral to a general practitioner for a mental health plan, if required.
41. Now, you have signed that you understand those conditions, and your Counsel has indicated that he has discussed them with you. And I just reiterate what he has no doubt told you, and what I have said to you before, and no doubt what the Magistrate has said before: you are at a fork in the road. You have had a significant period in custody, and you have got another six weeks or so in custody, which is the longest period you have ever been in custody. It has been onerous because of your psychotic episode. But I am giving you this opportunity in the community interest that, at the end of this period, from 18 April, you will be in the community, under the supervision of the Community Corrections System. Do you understand that?
42. PRISONER: I do, Your Honour.
43. HIS HONOUR: Yes. All right. Are there any other matters, Madame Prosecutor?
44. MS HOGAN: There were two orders handed up during the course of the plea for disposal and compensation.
45. HIS HONOUR: Yes. I have made that compensation order to the vehicle. I have made a compensation order against you for the damage to the vehicle, and I have also made a disposal order for the knife and the jacket that were found on you. I hand them down. Anything else?
46. MS HOGAN: And did Your Honour officially make the declaration under section 18?
47. HIS HONOUR: And I declare – what’s the figure again?
48. MS HOGAN: 311 days.
49. HIS HONOUR: I declare 311 days of presentence detention.
50. MS HOGAN: And just one further matter, Your Honour: in relation to the licence cancellation, was that on all charges?
51. HIS HONOUR: Yes. It’s on all charges.
52. MS HOGAN: Thank you. And - - -
53. HIS HONOUR: 6AAA. I declare pursuant to section 6AAA that had you not pleaded guilty, I would have imposed an aggregate sentence of three years’ imprisonment with a two-year non-parole period.
54. MS HOGAN: As Your Honour pleases.
55. MR WATSON: As Your Honour pleases.
56. HIS HONOUR: All right. I thank Counsel for their assistance in this somewhat elongated plea. And we will just stand down temporarily.
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