Director of Public Prosecutions v Oz

[2015] VCC 708

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00532

DIRECTOR OF PUBLIC PROSECUTIONS

v

OKTAY OZ

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2015
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v Oz
MEDIUM NEUTRAL CITATION:	[2015] VCC 708

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr A. Waters	Galbally & OBryan Lawyers

HIS HONOUR:

1Mr Oktay Oz, you can take a seat while I read out these remarks.  You have pleaded guilty to one charge of attempted aggravated burglary, 20 years' imprisonment is the maximum penalty, and one charge of threat to kill, that carries a ten year maximum.  You have also pleaded guilty to two summary offences, being one charge of unlawful assault, three months maximum, and one charge of wilful damage, six months maximum. 

2All arose out of a series of events on 30 December 2015 that involved violent behaviour directed at your former partner, Ms Figen Yalcin.  You pleaded guilty at the earliest opportunity and I take that into account.  The circumstances of your offending are set out in the Summary of Prosecution Opening, Exhibit A.  It needs no real elaboration. 

3I regard this as a serious example of this type of offending.  It went on for some time.  It involved really one series of offences but with a number of violent acts.  These were both physical and verbal.  Property was damaged.  Violence and injury were both inflicted on Ms Yalcin.  The offending involved violence directed in circumstances that could only be described as very frightening.  Ms Yalcin was fearful and had to flee to another address and call police.  She has declined to provide a Victim Impact Statement so there is just no evidence before the court as to whether there are any ongoing consequences.  However, it goes without saying that Ms Yalcin was entitled to feel safe in her own home and you violated that right alarmingly. 

4You have no prior criminal history.  Dealing with matters personal to you, you were educated in this country to tertiary level, having completed two years of an engineering degree at Monash University.  You are 31 years old.  The Defence Outline of Plea Submissions sets out your background, Exhibit 1. 

5A number of reports and documents have been tendered.  A report from your general practitioner, Dr Ramkrishna on 15 January 2015, describes you depression, anxiety and OCD.  You were treated for these until March 2014 but then ceased, Exhibit 7.  A Dandenong Hospital Emergency Department report describes an admission on 13 January 2014, Exhibit 6.  This was the day after bail was granted.  Violent behaviour at the hospital was recorded with possible connection to using ice.  You threatened suicide. 

6A more up to date report from Dr Lester Walton, consultant psychiatrist, is dated 23 March 2015, Exhibit 2.  He described your "rather grumbling waxing and waning depressive disorder".  It was chronic depression in his view.  He was not convinced you suffered any diagnosable drug induced psychosis but use of alcohol was relevant to this offending. He considered you needed psychiatric treatment.

7As to Verdins principles, he suggested the depressive disorder made a significant contribution to your offending but I find his opinion somewhat equivocal in that regard.  Unfortunately I have no material from your treating psychiatrist, Dr Marawadu, who I am told treated you for a year or so in 2013 and 2014.  I am satisfied for a first offender that with your mental illness prison would be additionally hard for you.  I am not persuaded that your moral culpability is relevantly impacted by Verdins principles.

8I consider your prospects of rehabilitation to be real.  You are well educated and intelligent enough to comprehend why you need to rehabilitate yourself.  In prison you have completed courses, Exhibit 5.  You have been drug free, Exhibit 3.  You have also been usefully employed and made some progress in the prison system, Exhibit 4.  In spite of prison being hard for you, given your mental problems, you have behaved well in custody. 

9Your counsel pointed to a number of other mitigating factors, including your plea of guilty.  You pleaded at the earliest opportunity.  That indicates remorse in your case.  Your record of interview and a number of your answers also pointed to your regret as to what you inflicted on the victim.  The early plea also has the obvious utilitarian benefits.  There is no need to elaborate separately on the objective and subjective criteria of those benefits but you have saved the victim from giving evidence.  You have also saved the time and expense involved in a trial.

10Your counsel submitted that your time in custody, almost five months, together with a Community Corrections Order (“CCO”) with appropriate conditions or a bond was the appropriate disposition.  It was submitted community work was not required if a CCO was the disposition arrived at.  The Crown agreed that time in custody but with a CCO involving community work was within the range of appropriate sentencing dispositions. 

11As well as the personal matters I have referred to, I must also take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I impose.  The community cannot and will not tolerate offending which so seriously compromises a woman's right to feel safe in her own home.  The message must be clear and consistent that appropriate punishment will result in the circumstances of your offending.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending.   I must seek to deter you and others from such offending.  General deterrence in offending such as yours must be given particular weight in terms of community concerns about such violence. 

12

A CCO assessment outcome report was obtained on

9 January 2015 via the Magistrates' Court, Exhibit C.  I ordered a fresh assessment to be done.  It was completed on 26 May 2015, Exhibit D.  In both reports an assessment that you are suitable for a CCO with appropriate conditions was recorded.  Stand up, thank you, Mr Oz.

13You are convicted and sentenced as follows on Charge 1 to 146 days imprisonment with a CCO for 12 months.  In addition to the statutory terms, I order conditions as to 100 hours unpaid community work, treatment and rehabilitation with respect to alcohol abuse and drug abuse together with mental health treatment assessment, supervision and offending programs including anger management. 

14On the other indictable charge and the two summary charges, I will take an aggregate approach.  I sentence you to the 12 months CCO with the conditions already described.  This results in a total effective prison sentence of 146 days which have already been served.  Therefore I impose the CCO for all the charges before me, such order to begin on your release today. 

15

I declare 146 days pre-sentence detention pursuant to s.18 of the Sentencing Act 1991. I will make the order consented to pursuant to s.464ZF of the Crimes Act. Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a total effective sentence of

12 months' imprisonment. 

16Now Mr Oz, in terms of that forensic sample that is required, I need to explain to you that you have consented to that.  I will restrict that to a sample of your saliva rather than a blood sample but I need to explain to you that if you do not cooperate with the officer that is taking that from your mouth, he is entitled to use reasonable force to require you to provide that sample of saliva.  Do you understand that?

17OFFENDER:  Yes, I do.

18HIS HONOUR:  If you consent to it of course there will be no force involved whatsoever.  So that is a matter for you.  Now the CCO needs to be formally explained, does it not, or recited?

19MR PICKERING:  Your Honour, it's normally done that the Department of Justice when they do the corrections assessment will explain it and ‑ ‑ ‑

20HIS HONOUR:  I notice it is signed but for the transcript do I need to just attend to that formally?  I have been told I do but ‑ ‑ ‑

21MR PICKERING:  No.

22HIS HONOUR:  Well is there any harm in it?

23MR PICKERING:  No.  There is no harm in it, Your Honour, and often what is pointed out is that in the event of a breach the matter returns before you.

24HIS HONOUR:  Yes, well I will do that at the end.  All right.

25[The CCO conditions were read to Mr Oz, he agreed to the terms and signed the order]

26HIS HONOUR:  Now I just want to explain a couple of things to you.  Mr Oz, barely a day goes past in which the community is screaming out about violence to women.  We have got a Royal Commission about to start in this state about offending by men such as you.  The Australian of the Year is the victim of domestic violence, family violence, violence perpetrated by a man on a defenceless woman and I just want to make this perfectly clear to you, if you offend in a way that breaches the order, you come back to me.  Look at me and I speak to you man to man.  You know where you are going then, do you not?  Does not matter what the excuse is, does not matter whether it is circumstances that involve drugs or alcohol or whatever, make no mistake if you come back here, there is only one place you will go and it will be for a long time.  Do you follow what I have said?

27OFFENDER:  Yes, I do, Your Honour.

28HIS HONOUR:  So it is up to you.  I do not want to see you again.  Adjourn the court.  Now there is probably some paperwork, is there, before he is released?  All right.  And you understand your obligations to attend for the CCO.  That can be explained.  All right.  You can take Mr Oz, please, and just attend to that paperwork so he can be released.