Director of Public Prosecutions v Oksuz

[2014] VCC 1775

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01105

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERKAN OKSUZ

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2014
DATE OF SENTENCE:	20 October 2014
CASE MAY BE CITED AS:	DPP v Oksuz
MEDIUM NEUTRAL CITATION:	[2014] VCC 1775

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Director of Public Prosecutions
For the Accused	Mr J. Saunders	Stephen Adrianakis & Assoc.

HIS HONOUR: 

1Serkan Oksuz, you have pleaded guilty to the following offences:

2One count of blackmail contrary to s.87 of the Crimes Act 1958. The maximum penalty for that offence is 15 years' imprisonment. 

3One count of reckless conduct endangering life contrary to s.22 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

4One count of attempt to pervert the course of justice contrary to common law.  The maximum penalty for that offence is 25 years' imprisonment.

5Four counts of possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is one year imprisonment, or a fine of 30 penalty units. 

6You pleaded guilty after the matter was listed for trial but following a withdrawal of a number of serious offences by the prosecution.  Your plea has spared the community the cost and inconvenience of a complex criminal trial or trials, and it is to some degree evidence of remorse for your offending.  I have taken your pleas of guilty into account in your favour in mitigation of sentence. 

7You have admitted an extensive criminal history, comprising on your counsel's reckoning, 60 prior convictions or findings of guilt from nine court appearances.  You have breached a number of dispositions ordered by courts to facilitate your rehabilitation. 

8In this instance your offending occurred shortly after your release from prison on parole. 

9A detailed prosecution opening was read to the court and your offending may be summarised as follows - 

10Between 7 October 2012 and 30 November 2012 you and a co-offender, Berhan Demirbas, demanded recovery of an apparent drug debt owed by Patrick Fusca by threatening his father, Frank Fusca, and brother Dominique Fusca.  The threats included arranging for Patrick Fusca to be stabbed in prison and producing a handgun to Frank and Dominique Fusca. 

11Due to the ongoing threats and violence, Calston Randall moved into the home of Frank Fusca.  In the evening of 30 November 2012 you and your co-offender and another unidentified person attended at Fusca's home.  Demirbas was armed with a .22 semi-automatic handgun.  You and he had agreed that the handgun would be used to threaten Fusca or Randall and fired if necessary.  However, you were not party to any agreement or understanding that the gun would be fired at any particular person.  Rather, as I have said, you understood the weapon would be used to threaten and intimidate.

12After arriving at Fusca's house, you and Demirbas confronted Randall.  After demands were made regarding the debt Demirbas produced the handgun after you told him to do so.  He fired the gun at a nearby fence.  Randall told Demirbas that he would not be getting any money from Fusca and Demirbas then shot him twice.  The first shot struck his left foot and the second shot struck him in the pelvic region, causing serious injury.  You left the scene with Demirbas and the other man and were arrested on 6 December 2012 by investigating police.  Your premises were searched and you were found to be in possession of the drugs of dependence, the subject of the charges before the court.

13Between 14 January 2013 and 28 February 2013, while in custody in Loddon Prison, you attempted to cause Frank Fusca to change the witness statement he had made to investigating police.  You forwarded a draft statement to an intermediary for delivery to Fusca and threats were also made to Patrick Fusca within the prison system.  Your conduct was clearly calculated to interfere with the prosecution case against you. 

14Your offending in this instance is a serious course of conduct that took place against a background of drug related activities.  You were acting in effect as a stand-over man, with no regard for the persons you were threatening.  Furthermore, the production and potential use of a handgun in a public place is a plainly serious offence and I also accept that the attempt to pervert the course of the prosecution case against you is also a serious example of that offence.  You must be punished for what you have done and the sentence I impose must be calculated to deter you and others from offending in this way. The court also must protect the community from drug related activity such as this. 

15I now turn to your personal circumstances.  You were born on 16 June 1986 in Turkey.  You are now aged 28.  Your family migrated to Australia when you were four.  You have an older sister.  Your parents divorced when you were 24, as a result of your father's abusiveness.  This abuse was in part directed at you from a young age and I accept that your development was disrupted as a result of this.  However, you were able to excel at soccer and represented Australia in the World Under 17 Championships.  You were also signed by the professional team The Melbourne Knights when you were 15.  However, injuries interrupted your soccer career and by the age of 23 you were unable to play at a professional level.

16At this time your occasional drug use escalated and you became drug dependent.  This in turn led to your criminal offending.  I have received in evidence a number of references regarding your character and I accept that you have a number of positive qualities.  I also received in evidence a psychological report of Dr Aaron Cunningham, a consulting forensic psychologist.  I accept that you suffer from depression and anxiety and I have also received in evidence a number of medical reports regarding your recovery from soccer related injuries. 

17Your counsel submitted that I should assess your prospects of rehabilitation as good.  In my opinion any realistic assessment in that regard must be guarded.  You are in a stable relationship and have the support of your family.  But in my opinion, your rehabilitation is dependent upon you remaining drug free and disassociating yourself from persons engaged in drug related crime.

18At arriving at an appropriate proportionate penalty in your case, I have had particular regard to the principle of totality in sentencing, and also the related fact that you have now been in custody serving breach of parole, a sentence of imprisonment and on remand since 6 December 2012 for offending closely related to your drug addiction. 

19I have also had regard to the sentence imposed by His Honour Judge Smallwood on your co-offender, Berhan Demirbas. 

20Would you stand up please, Mr Oksuz.  The end result, the sentence of the court is as follows:

21On the charge of blackmail you are convicted and sentenced to be imprisoned for two years and six months;

22On the charge of reckless conduct endangering life you convicted and sentenced to be imprisoned for three years;

23On the charge of a possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be imprisoned for one month; 

24On the charge of possession of a drug of dependence, namely MDMA, you are convicted and sentenced to be imprisoned for one month; 

25On the charge of possession of a drug of dependence, namely Stamisol, you are convicted and sentenced to be fined $500; 

26On the charge of possession of a drug of dependence, namely Diazepam, you are convicted and sentenced to be fined $500;

27On the charge of attempt to pervert the course of justice contrary to common law, you are convicted and sentenced to be imprisoned for six months.

28Charge 2, the charge of reckless conduct endangering life, is the base sentence.  I order that six months of the sentence on Charge 1, and the entirety of the sentence on the charge of attempt to pervert the course of justice, be served cumulatively on each other, and cumulatively on the sentence imposed on Charge 2, that is the charge of reckless conduct endangering life.  All other sentences will be served concurrently. 

29This makes for a total effective term of imprisonment of four years. 

30I direct that you serve two years imprisonment before becoming eligible for release on parole. 

31I declare that you have served 154 days by way of pre-sentence detention, not including today. 

32But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of five years and six months, and imposed a non-parole period of three years and nine months.  I have made the ancillary orders sought on behalf of the prosecution. 

33MR GIBSON:  Could I file a notice of related summary offence, Your Honour, in relation to ‑ ‑ ‑

34HIS HONOUR:  You can be seated, Mr Oksuz. 

35MR GIBSON:  For the two summary charges, Your Honour. 

36HIS HONOUR:  They go back to the Magistrates' Court.  I think my Associate has made the necessary order.  Mr Oksuz, that means that you will be required to serve a further two years imprisonment, less 154 days, before becoming eligible for release upon parole.  Are there any further orders required?

37MR GIBSON:  No, Your Honour.

38HIS HONOUR:  Thank you.

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