Director of Public Prosecutions v Oksuz

[2013] VCC 1379

23

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02149

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERKAN OKSUZ

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JUDGE:	HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2013
DATE OF SENTENCE:	23 October 2013
CASE MAY BE CITED AS:	DPP v Oksuz
MEDIUM NEUTRAL CITATION:	[2013] VCC 1379

REASONS FOR SENTENCE

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Catchwords:             Affray – Possess a drug of dependence – use of firearm in public – parity

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McWilliams	Office of Public Prosecutions
For the Accused	Mr D. Brustman SC	Stephen Andrianakis & Associates

HIS HONOUR:

1       Serkan Oksuz, you have pleaded guilty to one charge of affray and one charge of possessing a drug of dependence.  

2       You have admitted some 60 prior convictions from nine court appearances as an adult and one appearance in the Children’s Court.  These prior convictions have been for theft and burglary, dishonesty offences, drug offences and driving offences.  Your only court appearance for violent offences was that in the Children’s Court when you were just 15 years old.  You received a good behaviour bond, without conviction, following a finding of guilt for affray, recklessly causing injury and two non-violent offences.  You have received sentences of imprisonment as an adult, which were either wholly suspended or to be served by way of community based orders however you have served terms of imprisonment.  The most recent was on 29 August 2011 for the restoration of a suspended sentence originally imposed on 20 May 2009 for dishonesty offences.  The sentence restored was 18 months imprisonment with a non parole period of 12 months.  That sentence lapsed on 6 June 2013.  You are currently on remand with respect to a trial listed on 22 September 2014.

3       The facts were opened in detail by Mr McWilliams, who appeared to prosecute, and are contained in the summary of prosecution opening, Exhibit A.

4       On 16 February 2011 MH, the brother of your sometime girlfriend, Kellie, and with whose family you had been arguing with about the relationship, arranged to meet with you at the Epping Football Ground to “sort out the situation”.  He told his father of the arrangement and his father, RH, insisted on coming.  They arrived separately at the ground some 10 minutes before you arrived with three friends.  In the vicinity of a tennis club where adults and children were playing you and your friends chased MH onto the oval, waving what appeared to be baseball bats and you produced a handgun.  Efforts were made by the observers from the tennis club to move the children away and calls were made to the police.  You and your friends returned to your car and, whilst driving away, RH shattered your rear window with a baseball bat he had retrieved from his car.  Someone in your car fired a shot at his car, shattering his window.  It is not suggested that you had fired the handgun previously produced by you.

5       You were arrested on 3 April 2011 and found to be in possession of one gram of ecstasy in the form of four tablets.  You gave a no comment record of interview.

6       On 30 September 2013, RH pleaded guilty to one charge of affray in the Heidelberg Magistrates’ Court and received a term of imprisonment of two months, wholly suspended for 12 months.  I was told that RH is 54 years of age and has some prior convictions but had not served time in prison.  A summary from the matter before the Magistrates’ Court was provided, Exhibit B, and details an account that mirrors that supplied in the summary of prosecution, except that it is alleged that you were the person who had fired the gun.  It was common ground before me that I was not to take this into account in considering your culpability, and I do not. 

7       Mr Brustman SC, who appeared for you, submitted that I take into account the sentence imposed upon RH in sentencing you.  He referred to RH’s interview with police in which he agreed that he had acted in a provocative fashion, driving his car aggressively leading up to the altercation and had escalated the incident.  To use his words, he had taken the matter to the next level.   

8       By way of personal background you are now 27, having come to Australia from Turkey with your family as a four year old.  You left school half way through year 11.  You were a gifted soccer player and played at the highest level nationally and internationally as a junior.  You represented Australia as a 17 year old in the Junior World Cup.  A number of press clippings were tendered, Exhibit 5.  Your career was brought to an end after suffering injury as a 23 year old.  You worked from time to time with your father in his cabinet making business.

9       A psychiatric report of Dr Danny Sullivan, dated 20 August 2011, was tendered along with a number of other medical and psychological reports, Exhibit 2.  Dr Sullivan noted your illicit steroid use and its impact on your body in addition to your use of alcohol, cannabis, amphetamines, cocaine and ecstasy.  Dr Sullivan was of the opinion that at the time he assessed you, you were suffering from polysubstance dependence involving stimulants, alcohol, benzodiazepines and anabolic steroids.  He diagnosed you as exhibiting symptoms of anxiety and depression but noted no indication of psychotic illness, cognitive impairment or gross personality difficulties.  His recommendation in terms of your future mental health was abstinence from substance use.

10      Mr Brustman did not argue that your mental health issues were relevant to reducing your moral culpability and hence any sentence that might be imposed. 

11      Two character references were tendered on your behalf by Mr Brustman, which both spoke of your substance abuse and underlying mental health issues.  The letter from your sister, Exhibit 4, attributes your difficult childhood and fractured relationship with your family for your offending behaviour.  The letter from your fiancé, Exhibit 3, expressed surprise at your violent behaviour and noted that you have been a positive influence on her two younger brothers.

12      The basic purposes for which a court may impose a sentence are punishment, deterrence both specific in general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

13      Affray is a serious offence that can have a considerable impact on those members of the public who are witnesses to the offending.  The circumstances of this offending are particularly serious as children were present and weapons were being brandished by you, your associates and the other family involved in the incident.  In particular, the brandishing of a firearm is of particular concern.

14      I was informed that you were facing further unrelated criminal charges to be heard in the County Court next year for which you are currently on remand.  I understand that you intend to plead not guilty to some if not all of those charges.  I make it clear that I do not take any account of what may occur in this court in the near future.  I take into account your plea of guilty and whilst it was not offered until just before trial you are entitled to a discount which recognises its utilitarian benefit. It goes without saying that a greater discount would have been given for an early plea, as was the case for RH who pleaded guilty at the earliest opportunity after making full admissions.

15      This brings me to the question of sentencing parity.  The law requires that like cases be treated alike, and that there be appropriate differentiation between unlike cases.  This is fundamental to the criminal justice system and to the maintenance of public confidence in the system.  

16      The summary produced to the Magistrate who sentenced RH covered the whole of the events including his attack upon your car and the following shooting.  By agreement, the affray in your case does not extend beyond paragraph 14 of the summary (Exhibit A) which means that the line is drawn when you and your colleagues get back into your car and before the smashing of the windows.  There are other differences between your case and that of RH.  You are younger, but have more prior convictions and have served time in prison whereas he has not.  As I have already discussed, you pleaded guilty late in the piece and so do not have available to you as great a discount as did RH.  Not only did he plead guilty at the earliest opportunity he also self reported the incident, albeit as your counsel pointed out he did not necessarily fully disclose his conduct. Most importantly, however, your participation in the affray was of a greater order than his.  You came to the so-called ‘discussion’ with a prior conviction for affray, with three colleagues, armed with weapons in the nature of baseball bats or poles and in particular you with a handgun, which you brandished to the concern of all.  This last factor in particular considerably escalates and distinguishes your criminality from that of RH.  I consider that the totality of these factors calls for a significantly different sentence than the one imposed on RH.  Having said that, I do propose to moderate your sentence to ameliorate in some part the sense of grievance that you will feel about the disparity in sentencing.

17      On the charge affray you are convicted and sentenced to 12 months imprisonment with a non parole period of six months. On the charge of possessing a drug of dependence you are convicted and fined $500.

18 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted.  Had you been convicted after a trial I would have sentenced you to 15 months with a non-parole period of nine months. 

19      I declare that 18 days of pre-sentence detention be reckoned as having been served under the sentence and direct that a declaration to that effect be recorded in the records of the court.

20 Finally, I make the disposal order pursuant to s.78(1) of the Confiscation Act 1997.

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