Director of Public Prosecutions v Murat
[2021] VCC 82
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-20-00871
L11052566.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIRSHAT MURAT |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2021 |
DATE OF SENTENCE: | 5 February 2021 |
CASE MAY BE CITED AS: | DPP v Murat |
MEDIUM NEUTRAL CITATION: | [2021] VCC 82 |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Guilty plea – two charges of perverting the course of justice
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo | Solicitor for the Office of Public Prosecutions |
For the Accused | Ms K. Rolfe | Yang & Vale Pty Ltd |
HIS HONOUR:
1 Mirshat Murat, you have pleaded guilty to two charges of perverting the course of justice, each of which carries a maximum penalty of 25 years imprisonment. The circumstances of your offending were detailed in the prosecution opening, which was tendered on the plea and read in open court by the prosecutor,
Mr Raimondo. I will briefly summarise those circumstances.
2 The offending in this case took place in 2015 and 2016. At that time, you were aged 25 and 26 years respectively. You are now aged 31 years. In December 2010, you were disqualified from driving by the Downing Centre Local Court in New South Wales for a period of eight years for offences including drink driving and driving whilst disqualified.
3 You had a number of other prior convictions for those types of offences in New South Wales in 2009, 2010 and 2011, which are set out in the prosecution opening and in your criminal history. At some point after that you moved to Victoria. You obtained an international driver's licence with your photograph but in the name of Zen Wan Qi. You knew the real Zen Wan Qi and you knew he did not drive, and he did not have any driving related convictions.
4 On 15 March 2015 and 6 January 2016, you were involved in driving incidents which resulted in charges. On both occasions you produced your false, international driver's licence in the name of Zen Wan Qi as identification. You were charged under that name. On 3 August 2015, you attended at the Melbourne Magistrates' Court to face charges arising from the 15 March 2015 incident. Purporting to be Mr Qi, you pleaded guilty to exceeding the prescribed concentration of alcohol and careless driving. No prior convictions from New South Wales were alleged against you because you were pretending to be
Mr Qi. You were fined an aggregate sum of $650 and your licence was cancelled, and you were disqualified for driving for 16 months. The prosecution case is that if your New South Wales prior convictions had been alleged against you, the magistrate may have imposed a more severe sentence. Your attendance at court pretending to be Mr Qi is the basis of Charge 1.
5 On 16 May 2016, you again appeared at the Melbourne Magistrates' Court to answer charges relating to the 2016 driving incident, again purporting to be
Mr Qi. You pleaded guilty to exceeding the prescribed concentration of alcohol and driving whilst disqualified. You were convicted and fined an aggregate sum of $900 and your licence was cancelled, and you were disqualified from driving for 12 months. Your New South Wales prior convictions were not alleged against you. The prosecution case is that had the magistrate been aware of your prior convictions, he may have imposed a more severe sentence. This is the basis of Charge 2 on the indictment.
6 The offence of perverting the course of justice carries a maximum penalty of 25 years, which reflects the seriousness of the offence. It has often been observed that such offences strike at the heart of our legal system and the administration of justice. In this case, the prosecution referred to the decision of Queen v Buscema [2011] VSC 206, where Nettle JA, as he then was, said this:
Offences of attempting to pervert the course of justice are conceived of striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and so maybe committed in a wide range of circumstances and the particular circumstances of each case inform the gravity of the offending. Circumstances, which bear upon the assessment and the nature and gravity of particular offending and so, upon the sentence to be imposed, have been identified in Randford v Western Australia (No 2) [2006] 166 ACR at 451 and they include the following.
(a), the consequences of which the offending was calculated to avoid;
(b) the time for which the deception was maintained and whether it was actively repeated or persisted and merely allowed to continue;
(c), whether the deception involved some other person either as an accomplice or a victim;
(d) whether there was any threat or violence involved;
(e), whether the offence was spontaneous or premeditated and;
(f), whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.
7 Applying the criteria referred to in Buscema to the present case, I find that your offending was calculated to avoid you receiving a more severe sentence and, in my opinion, almost certainly achieved that result. In my view, longer disqualification periods and higher fines were highly likely and in relation to the 2016 matter, at least, a prison sentence would have been very much in play had the magistrate known of your New South Wales prior convictions. The deception did involve another person, namely Mr Qi, who had convictions recorded against his name. The genesis of the offence goes back to when you created the false licence and while I accept you did not contemplate the court appearances under Mr Qi's name at that time, I am of the view that in using the licence when pulled over by the police, which is essential context to these offences, and then attending court as Mr Qi, there was a degree of premeditation and deliberation involved, especially in respect of Charge 2, by which time you must have well understood what you were doing.
8 There was ample time in between being charged in the court proceedings for you to reflect on whether to take your conduct further by attending court as
Mr Qi. This was brazen conduct and was repeated on two occasions. The deception was on the Magistrates' Court in Victoria and resulted in the creation of false records. Ms Rolfe submitted that your offending lacked the following aggravating features: it did not involve threats or intimidation of other people; it did not involve you seeking to deter witnesses from giving evidence or from giving truthful evidence in court proceedings; the context of the offending is not one in which the base offences, that is, the drink driving and the driving whilst disqualified can be described as grave; there was an absence of any abuse of power bestowed as a result of position, such as being a police officer or a lawyer; and she submitted that you did not understand the seriousness of the offences you were committing. Whilst I accept that you, perhaps, did not appreciate the gravity of prior convictions being recorded in Mr Qi's name, I am of the opinion that you well understood that your conduct would produce a more lenient result in the court proceedings and that your conduct was designed to allow you to continue to drive.
9 I turn now to your personal circumstances. You were born and raised in the Xinjiang province in western China. You were an only child raised to parents of a Turkish Muslim heritage. You and your family suffered discrimination on the basis of culture and religion. You also faced surveillance and separatism by the locals. You completed your education up to Year 9 in China before moving to Australia. At school, in China, you were a victim of frequent bullying. You arrived in Australia on a student visa in February 2007, when you were just 17. You went on to complete Year 10 and Year 11 at an international school in Sydney called Uniworld College. You left during Year 12 in 2009.
10 You subsequently remained on a protection visa and later on obtained Australian citizenship. In Australia you initially lived with an aunt in Sydney. I understand there are problematic issues in that situation and you left and, thereafter, lived in share houses. You eventually moved to Melbourne in September 2012 when you were aged 23. When you originally arrived in Australia, you worked in a chicken shop in Cabramatta. Your aunt was also employed at that shop. Later, you obtained a forklift licence and you were employed casually in construction as a truck jockey and as a pizza delivery driver.
11 After moving to Melbourne, you obtained an Agent's Representative Certificate in Real Estate at the Box Hill TAFE. And since arriving in Melbourne, you have been employed in real estate and in car sales. I understand your employment ceased in the context of the COVID-19 pandemic. You and your wife were married in November 2012 and you have two young sons together, Daanish, who is aged 6 and Arslan, who is aged 3. Your mother visited you once in Australia, but you have not seen your father since you left China. Your parents have had their passports taken for extended periods, which I am told, and I accept is a measure to control the population in the Xinjiang province.
12 You pleaded guilty to the charges in this matter at a committal mention hearing, which followed your voluntary attendance at the police station and the admissions you made in the record of interview. No witnesses have been cross-examined in this matter. I give you credit for the utilitarian value of your plea. By avoiding a trial, you have spared the witnesses the inconvenience of giving evidence and you have saved the court time and resources. I accept your plea indicates a willingness to facilitate the course of justice and remorse for your offending. You have provided a letter to me expressing remorse and insight, which I accept is genuine. You have also expressed remorse and insight to the psychiatric nurse, Ms Robertson, who provided a report, along with the Community Correction Order Assessment.
13 Ms Rolfe relied on the context of your offending, which arises from your disqualification for the period of eight years from December 2010, when you were aged 21. I am told that at the time of the offending you generally felt that you would be unable to obtain employment and survive without driving. Your work in real estate required you to drive and there was significant financial pressure to provide for your family. Your wife was not working and had the primary responsibility for the care of your oldest son, who was born in 2014. You have been assessed by a psychologist, Ms Alison Maynard, and her report was tendered at the plea hearing.
14 She said that your emotional intelligence level is estimated to be low and you have difficulty identifying and managing your negative emotions and negative thoughts, and you have poor coping mechanisms for stress. She said you wanted to prove yourself to your parents and the people around you, and that you were successful and worthy. And that if you were not able to do this, you suffered from debilitating depressive and anxiety symptoms. You placed a high value on being able to have your own car and drive around independently to earn money and support yourself.
15 She said your judgment, in terms of your offending, had been highly impaired by your overwhelming depressive illness and desperation to prove yourself to continue to work and provide for your family, and you were fearful of your life falling apart if you were not able to drive. She assessed you as having severe depression and anxiety, and said that your depressive illness significantly impacted on your offending. Your judgment, she said, has been clouded by ongoing negative thoughts about life being impossible without a licence. She said you have a very pessimistic view of yourself and your life, and that contributed to your decision making in relation to the offending.
16 She went on to say you believe your identity is closely linked to your ability to drive and provide for your family, and your belief that you unequivocally need your licence. She said you have an underlying feeling of worthlessness from being ostracised and bullied at school in China and without a licence, this depressive feeling is compounded, leading to your offending. She is of the view that your mental health issues will affect you in custody and weigh very heavily upon you. She said this:
'He is likely to deteriorate in mental health whilst in custody'.
17 She said there is a serious risk that a term of imprisonment will have a significant detrimental effect on your mental health in terms of compounding your anxiety, compounding your depression in an environment where you cannot access psychological treatment. And she said that you need to be treated with cognitive behavioural therapy.
18 I have also received reports from your general practitioner, Dr Samini, confirming he treats you for anxiety and depression, and an adjustment disorder is referred to as well; and a letter from a medical practice in New South Wales confirming treatment for anxiety and depression in 2011. As I said earlier, I have received a Forensicare report from psychiatric nurse, Vanessa Robertson, indicating you have experienced suicidal ideation. She is of the view that you have good insight into your offending and your problems relating to alcohol and gambling.
19 There is reference in the material that you have had gambling problems and you have received counselling in relation to that issue from Lirelle Bennett, who has been you counsellor in respect of those matters and who provided a letter to the court. Much of what Ms Robertson says does mirror what is said by Ms Mynard in her report. It was submitted by Ms Rolfe that all of the Verdins principles are enlivened. She submitted there is evidence of impairment to mental functioning that contributed to the offending and your ability to make calm and rational choices, and to think clearly.
20 She submitted, therefore, that your moral culpability is reduced. The prosecutor, Mr Raimondo, submitted that principles 3 and 4 are enlivened to the extent that there should be some moderation of general deterrence and specific deterrence; and that principles 5 and 6, relating to the burden of your imprisonment and the serious risk of imprisonment being detrimental to your mental condition, are also enlivened. The prosecution contested that your mental condition should give rise to a reduction in your moral culpability.
21 In my opinion, given the circumstances and the repeated nature of your offences, your conduct was quite deliberate and calculated to subvert the court orders made against you. It took place over an extended period. It is consistent with your history of driving while disqualified, for which you have a number of prior convictions. The psychological report very much relies on your account and looks back some five years to try and ascertain your mental state in 2015 and 2016.
22 I am not satisfied that this represents cogent evidence of a direct connection between the offending and your mental state, which in my view, was calculated to avoid the orders of the courts in New South Wales. However, I am satisfied that on an examination of your background and your levels of isolation, and the contextual circumstances at the time of the offending, together with your long term issues with depression and anxiety, the assessment of your moral culpability should be reduced in a limited way.
23 I turn now to your prospects of rehabilitation. I am of the view that you have you have good prospects of rehabilitation. You have been in no trouble for some years now. The material before me suggests that you have now stopped drinking, which is the source of a number of your problems with the law and your mental health. In addition, the offending in this case took place some five years ago. I also have regard in assessing your prospects of rehabilitation to your high levels of cooperation and remorse for your offending in this case.
24 I turn to the burden of your imprisonment. In relation to the current situation in prisons, as a response to the pandemic, a number of restrictions are in place. Lockdowns have been prevalent. You will be required to quarantine for a period of 14 days. Personal visits are restricted. All of these matters combine to increase the burden of your imprisonment. In particular, you are a man who is married and who has two young children, and during the period you are in prison you will not be visited for the foreseeable future by your wife or your two children. You will be restricted, as I understand the current situation, to video link visits. And I have regard to these matters in assessing the burden of your imprisonment, along with your psychological situation.
25 Sentencing principles of general deterrence, denunciation and just punishment are all relevant in this case. General deterrence, because of events of perverting the course of justice strike at the heart of the justice system. In a civilised community, the system of law must be followed. I was referred to a number of cases by the prosecution and the defence as examples of similar offences. I have had regard to these matters as indicators of current sentencing practices. No two cases are the same, of course, and whilst current sentencing practices are a guide, they are not a controlling factor in the exercise of the sentencing discretion.
26 There are numerous differences in the cases referred to in respect of the facts and the personal circumstances of the offenders in those cases. The prosecution referred me to the case of Zotos [2014] VSCA 324, Saleem [2014] VSCA 190, Lam [2017] VCC 612 and Feltham [2018] VCC 1187. And I have read and have regard to all of those matters. Ms Rolfe referred me to a case of Cheng. In that case an offender, who had been disqualified some five days earlier by the Magistrates' Court, was apprehended for further driving offences and supplied a false identity. He was later dealt with in court under that identity. The offender was sentenced to a Community Correction Order for a charge of perverting the course of justice.
27 Obviously, there is a factual similarity between that case and this case, but there are relevant differences, including that the conduct happened on only one occasion and there is no suggestion in that case that there was a real individual who had false convictions recorded against their name. Notwithstanding the seriousness of the offending in this case, it is submitted by Ms Rolfe that competing sentencing considerations can be balanced by the imposition of a Community Correction Order alone, given the mitigating circumstances and the personal matters. Ms Rolfe referred to the case of Bolton v The Queen [2014] VSCA 342 as to the availability of a Community Correction Order in respect of serious offences and its ability to promote the competing interests of the offender and the community, and balance the relevant sentencing principles.
28 She submitted that considerations of deterrence do not necessitate an immediate term of imprisonment. She submitted that you remain a young man, although that remains questionable, given you are now 31, who requires targeted treatment and support and you have been relatively isolated in Australia since arriving in your late teens. She submitted you have struggled in learning independence and your background is informed by trauma.
29 Mr Raimondo, on behalf of the prosecution, submitted that considering the nature and seriousness of the offences, general sentencing principles and relevant case law, a combination sentence, comprising a term of imprisonment and a Community Correction Order, is appropriate in this case. The prosecution submits that a proper application of sentencing principles requires a period of immediate imprisonment.
30 Mr Murat, even accepting, as I do the mitigating factors put forward on your behalf by Ms Rolfe in her comprehensive and detailed plea, I am of the view that a proper application of sentencing principles requires a period of immediate imprisonment. General deterrence has particular importance in sentencing for offences such as these. I have balanced the objective gravity of the two offences in this case against the mitigating features, including my findings with respect to your psychological state and the burden of your imprisonment. I have taken all those matters into account in formulating the appropriate period of immediate imprisonment.
31 I do intend to impose a combination sentence in this case. I have received a report from Corrections, which indicates that you are suitable for a Community Correction Order and which recommends supervision, mental health, alcohol and offending behaviour programs. That report does indicate that community work is not available at the present time. I do indicate I have had no regard to that matter in formulating the view that an immediate period of imprisonment is the only appropriate sentence in this case. And I think I indicated as much on the last occasion.
32 If you could now stand, please, Mr Murat.
33 The sentence that I impose in respect of these matters in relation to Charges 1 and 2, given that I am imposing a combination sentence, I will impose an aggregate sentence. The sentence is four months imprisonment. You are convicted and sentenced to a period of four months imprisonment. In addition to that, I am imposing a Community Correction Order for a period of 12 months. The conditions of that order will be that you are under supervision of the Office of Corrections for a period of 12 months. You will have to undergo assessment and treatment for mental health, for alcohol and offending behaviour programs, as directed.
34 I will have that document printed out and then I will read you the core conditions. You have to agree to such an order, Mr Murat. I indicate that, but for your plea of guilty in this matter, pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of 18 months with a minimum of 10 months. I will just stand down for a couple of minutes while we print out the order.
35 MS ROLFE: Certainly, Your Honour. Yes. There are, just very briefly, some custody management issues.
36 HIS HONOUR: I know. I will note those, yes. Mr Raimondo, just give me a couple of minutes and we'll have the order printed out and then we'll deal with it. You're in custody now, Mr Murat. You can't leave the dock, all right? I'll stand down for a couple of minutes.
(Short adjournment.)
37 HIS HONOUR: All right, that was quick. Are you there, Mr Raimondo? Yes, you are All right, Mr Murat, all Community Correction Orders have mandatory terms and they are these. You are not to commit another offence for which you could be imprisoned during the time the order is in force. If you did that, that would be a breach. You have to comply with any obligations or requirements pursuant to the sentencing regulations. You have to report to and receive visits from Corrections as directed. You have to attend at Corrections within two working days of the commencement of the order. So, that is on your release, after you have served the four months. You have to let a corrections officer know if you are changing your address or your job. You cannot leave Victoria without getting permission from the corrections officer, and you have to obey all lawful instructions of the corrections officer.
38 In addition to those mandatory terms, you are to be under supervision for a period of 12 months. You are to undergo assessment and treatment for alcohol abuse or dependency, as directed. Any mental health assessment and treatment, including psychological, neuropsychological, psychiatric treatment at a hospital or residential facility, as directed. And you must participate in programs and/or courses to address factors relating to the offending, as directed. They are the conditions of the Community Correction Order. If you were to breach any of those conditions, that would be a charge of contravening a Community Correction Order.
39 One of the consequences of that is that, potentially, you could be in a situation where you are to be re-sentenced in respect of these matters. That would include vacating the prison sentence, because this is a combination order and re-sentencing you for the two charges. And you could expect to, in those circumstances, receive a further period of imprisonment. I will sign that order. Are you prepared, Mr Murat, to enter into the terms of the Community Correction Order with those conditions?
40 OFFENDER: Yes, I am.
41 HIS HONOUR: All right. Just while that's happening, Mr Raimondo, are there any other orders that need to be made?
42 MR RAIMONDO: No, Your Honour.
43 HIS HONOUR: All right, we will have Mr Murat sign that order. Can you ‑ ‑ ‑
44 MS ROLFE: Yes, may I approach, Your Honour?
45 HIS HONOUR: Thanks. We will get Ms Rolfe to take the document down to you and you can sign it.
46 MS ROLFE: That's been signed, Your Honour.
47 HIS HONOUR: All right. I have signed that document now. We will have a copy of the document sent to you, Mr Raimondo.
(Order signed and acknowledged.)
48 R RAIMONDO: Thank you, Your Honour.
49 HIS HONOUR: All right. If there are no other matters, I will now adjourn until 12.30.
50 MS ROLFE: Your Honour, there is just the custody management.
51 HIS HONOUR: The custody management, yes. Obviously, there is the suicidal ideation. I will note – this is to be noted on the orders. Custody management issues include depression, anxiety and suicidal ideation.
52 MS ROLFE: As well as, Your Honour, there is one allergy and that's hives, I've been instructed in relation to ‑ ‑ ‑
53 HIS HONOUR: And?
54 MS ROLFE: Hives, allergy.
55 HIS HONOUR: Yes, all right. It will also be noted that Mr Murat suffers from hives and that's an allergy that he suffers from. So, that will be noted as well. Is there any medication that he has for that?
56 MS ROLFE: No, Your Honour.
57 HIS HONOUR: All right, thank you.
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