Director of Public Prosecutions v Ozalp
[2013] VCC 955
•10 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01253
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| VOLKAM OZALP |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2013 | |
DATE OF SENTENCE: | 10 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Ozalp | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 955 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty plea; Aggravated burglary, recklessly causing serious injury, handling stolen goods, theft; two co-accused; victim 58 year-old partner of father of co-accused; victim dragged into her house, punched, hit and kicked by all accused; taped around wrists and face; items stolen from house; accused aged 28 at the time; two prior court appearances for possession of weapons; long-term drug addiction; good work history; some indications of rehabilitation; 161 days pre sentence detention;
Cases Cited: R v Verdins
Sentence: TES 2 years 8 months , non parole period 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Mallia | |
| For the Accused | Mr McCloskey |
HER HONOUR:
1 Mr Ozalp, you can remain seated for the moment. I will ask you to stand later. Volkam Ozalp you have pleaded guilty to one charge of handling stolen goods, one charge of aggravated burglary, one charge of recklessly causing serious injury and one charge of theft. These are all serious charges which attract maximum prison terms of 15 years, 25 years, 15 years and 10 years respectively.
2 You committed these offences on 18 January 2012. The victim of this assault was a 58-year-old woman, Diana Formosa, who was the de facto partner of Ahmet Hadis, also known as Ahmet Trippa, having lived together with him in Echuca for some 12 or 13 years. Mr Trippa is the father of Mustafa Hadis, one of the co-accused.
3 Mustafa Hadis was a 20-year-old man who was estranged from his father, as the result of the separation of his parents when he was two years old.
4 He had grown up with his mother and sister with his father playing no part in their upbringing. He had recently tried to contact his father in an attempt to establish a relationship with him, but had been rebuffed. After his father had ignored his text messages, he had driven, on 14 January 2012, to his father's house in Echuca with the other co-accused, a 16-year-old youth named Fawaz Akkari.
5 His father told him he did not want anything to do with him and told him to leave. The next day Mustafa Hadis told his girlfriend that he wanted to rob his father's house as his father had upset him the previous day. On 16 January, Mustafa Hadis and Akkari again drove to Echuca and spoke to Ms Formosa, who told them she would speak to Mr Trippa and try and sort something out. The two co-accused returned to Melbourne.
6 Two days later on 18 January you joined them in another trip to Echuca, in a car belonging to Mustafa Hadis' girlfriend. He had attached stolen number plates for the purposes of these trips to Echuca, and this is Charge 1, handing stolen goods. At 7 a.m., the three of you approached the house where Mr Trippa and Ms Formosa were living and Hadis stood outside the bedroom window. You and Akkari hid at the side of the house.
7 Ms Formosa awoke and saw Hadis at the window and yelled at him, "What are you doing?" She then opened the front door and went outside, and again asked Hadis what he was doing. He grabbed hold of her shoulders and pushed her back towards the house. When she tried to get away, Hadis dragged her to the ground and yelled for the others to help him. You and Akkari got Ms Formosa back inside the house. This is Charge 2, aggravated burglary.
8 Ms Formosa was yelling for help and the neighbours called the police. The assault continued inside the house with a blow to her face that she believed was caused by Hadis and a blow to the back of her head was by Akkari. All three of you then punched her to various parts of her body, although you deny that you delivered any blows. Hadis and Akkari then taped up her hands and mouth and dragged her into the kitchen while Hadis continued to hit and kick her to the face and rib area. This combination of events is Charge 3, recklessly causing serious injury.
9 One of you asked Ms Formosa for the whereabouts of the "money, cash or safe," and you and Akkari started ransacking the house. Later you were seen by the neighbours carrying a video camera bag to the car and you then reversed the car so the car boot was at the front door of the house. When the car was searched later, the camera bag was found to contain a large amount of jewellery, together with the video camera. This is Charge 4, theft.
10 Whilst the assault was happening, Hadis stayed with Ms Formosa and the two were yelling at each other. Akkari ran into the room and grabbed a knife from the kitchen and held it to Hadis's throat telling him if he didn't keep his voice down he would get what Ms Formosa was going to get, and she believed she was going to be killed. At this stage, you ran back into the house and told the other two that the police had arrived and you all left via the rear of the house.
11 Ms Formosa was taken to hospital and treated for her injuries, which included a three-centimetre laceration to the back of her head, various bruises and what are described as abrasions to both knees, which required sutures and so should probably be described as lacerations. When police searched the premises, they found a rubber mallet in the kitchen beside the knife block from which Akkari had taken the knife. They also found outside on the grass, a screwdriver with its handle wrapped in brown wrapping tape.
12 The telephone in the house had had the wires pulled out so that it was inoperative. In the car, the police found a machete-style knife and two screwdrivers with handles taped consistently with the screwdriver found on the lawn, as well as a folding knife blade and another rubber mallet. The two co-accused were arrested soon afterwards, not far from the house, and Akkari was found to have jewellery and watches in his pocket. You were arrested minutes later and taken to the police station where you were interviewed, but made no comment.
13 Not only was Ms Formosa extremely traumatised by this brazen and shocking attack, but members of her family were too, as was Mr Trippa. In her victim impact statement, she said she no longer lives with Mr Trippa and the house was being sold. She was unable to return to live in the house. She does not know what the future holds for her. She is now living with a relative who, herself, is suffering from the burden that that entails.
14 Ms Formosa and her extended family fear that an attack may occur again and so her grandchildren are no longer left in her care as they once were. Ms Formosa is being treated for depression and she bears the physical scars of the injuries on her legs, as well as numbness on her head and the area of the laceration. The attack had wide-reaching effects on the family, as described in the other victim impact statements provided. It has ended the 15-year relationship between Mr Trippa and Ms Formosa and affected the lives of her children and grandchildren.
15 As to your own background, you are aged 29, an Australian-born man of Turkish background. Your father died when you were seven years old in tragic circumstances. He had been a heroin addict for years and he walked into the path of a tram, which hit him and he died as a result. This occurred three hours after your sister was born. Indeed, you have two sisters, both married and in the workforce, and you also have had a very sound work ethic, although it has been jeopardised by a longstanding drug problem.
16 Even as a schoolboy, you worked in part-time jobs and on leaving school during year 11, you were employed in various unskilled jobs. Unfortunately, whilst working in the hotel security industry you fell victim to drug abuse, starting with amphetamines and later including cannabis and ice.
17 In 2003, aged about 20, you went to Turkey to spend 15 months in the army, and by the time you returned you were the father of a six-month-old baby girl.
18 You married her mother in 2006 and set about establishing a home working very long hours as a contract driver. However, the marriage was short lived and you separated in 2007. In 2009, your wife and daughter went missing and it took three months before you learned of their whereabouts. Around this time, your drug use increased and you became a very heavy user, although you were able to keep working until September 2010.
19 You became involved with the two co-accused owing to your reputation as a user of ice, and it was during a meeting with them that you joined in the plan Mr Hadis instigated of robbing the Echuca house, with the knowledge that a family dispute was at the core of that plan.
20 After your arrest, you spent 161 days in custody, and upon your release, you returned to live with your mother. You offered to plead guilty to aggravated burglary at the committal, which was conducted by way of a straight hand up brief, so the need to cross-examine the witnesses was fortunately avoided.
21 You are entitled to a discount on your sentence for that early plea indication, even though the charge of recklessly causing serious injury remained the subject of discussions until February this year. Avoidance of a trial, even at a late stage, is given recognition by the courts as a valuable contribution to the processes of the criminal justice system.
22 You have ceased using cannabis and until quite recently, you were still using amphetamines but in smaller amounts. Your instructions to your counsel, Mr McCloskey, were then that you have had great difficulty in breaking the habit, as you feel normal when using it and lifeless without it.
23 In March, you were charged with new offences and held in custody for about six weeks. On release, you were placed on the CISP program and you have been doing well. Importantly, you have now ceased using amphetamines, and have been employed three days a week by your friend “Y”, who runs a DVD store. He gave evidence that you are proving to be a reliable employee and are free of drugs. That is consistent with your instructions to Mr McCloskey and your punctuality in attending court, something that you were consistently unable to achieve over past months.
24 One of the sentencing principles I must take into account is that of parity. That is to consider the need for some consistency in sentencing you and the other adult offender, Hadis. He was sentenced to 12 months in a youth justice centre, and clearly, his youth places him in a different sentencing category, but at the same time, it is relevant that he was the instigator and the driving force behind the offending. You were not present on the first two occasions when Hadis went to the house in Echuca.
25 The other important consideration is the need for the sentence to be of sufficient severity to deter others from this serious criminal behaviour. The invasion of a person's home, knowing they are present, followed by an attack on the occupant, deserves a sentence of immediate custody of some considerable duration. Fortunately, Ms Formosa's physical injuries were not at the highest end of the range of seriousness, but the trauma and terror she experienced, fearing she would be killed, elevates the seriousness of the attack upon her.
26 You have expressed regret and remorse, and there are now some indications of prospects for your rehabilitation. Your criminal history is not extensive, but includes two court appearances for possession of a weapon, one of which was a plastic gun left in your car by someone. The other was a knife you kept for protection. A psychological report was provided through Forensicare by Dr Joel Godfredson, who assessed you recently and noted the results of testing disclosed a possible current depressive episode against a background of long-term depressive symptoms, consistent with the drug problems you described.
27 Dr Godfredson also noted a risk of future violence stemming from historical features of your upbringing and social instability, but he said that risk is presently low. He said there is a slightly higher than 50 per cent risk that you will offend again within a year. He thought your use of methamphetamine combined with consequential poor judgment, the anti-social influence of your peers and your tendency to place your own interests above the law, led to your offending on this occasion. The recommendations from the report are that you would benefit from participation in an alcohol and other drug program, which is available in prison and other programs would be useful.
28 Mr McCloskey has urged me to consider sentencing you to a community corrections order and I have given careful thought to that option, but I have concluded that the offending is too serious for any sentence other than one to be served immediately. Accordingly, I shall sentence you to a term of imprisonment, but one that acknowledges the need for some leniency.
29 The symptoms identified by Dr Godfredson bring in to play the principles in the case of Verdins, which means I should apply sensible moderation to any sentence I impose. I also take into account the principle of totality and proportionality to ensure that the sentence in all the circumstances, is not a crushing one. Would you stand now please.
30 I sentence you to the following terms of imprisonment. For Charge 1, handling stolen goods: six months, for Charge 2, aggravated burglary: two years, for Charge 3, recklessly causing serious injury: 18 months and for Charge 4, theft: nine months. The base sentence for the purposes of cumulation is the sentence for Charge 2.
31 I order that one month of the sentence for Charge 1, six months of the sentence for Charge 3 and one month of the sentence for Charge 4 be served in cumulation upon the base sentence. That results in a total effective sentence of two years and eight months.
32 I order that you serve a minimum period of 18 months before being eligible for parole. The prosecution seeks an order for the disposal of a list of items, and I make that order, and the prosecution also seeks an order for a forensic sample of saliva to be obtained under Section 464ZF of the Crimes Act.
33 Mr McCloskey, I don't think I noted whether your client consented to that or what the situation is.
34 MR MCCLOSKEY: Yes, he consents to that.
35 HER HONOUR: Thank you. I make that order and I must advise you that the police do have the power to use reasonable force to obtain the sample, but I trust that won't be necessary. You spent 161 days in pre-sentence detention, which is to be reckoned as already served and I shall cause that to be noted on the court record. If you had pleaded not guilty to these charges, I would have sentenced you to three years and six months imprisonment with a non-parole period of two years. Are there any other matters that I have omitted?
36 MR MALLIA: No, Your Honour.
37 HER HONOUR: Just one moment please. I think that is everything.
38 MR MALLIA: As Your Honour pleases.
39 HER HONOUR: Mr McCloskey, thank you for your assistance during the quite long process of this pre-hearing.
40 MR MCCLOSKEY: Thank you, Your Honour.
41 HER HONOUR: I certainly pass on my thanks also to the prosecution. Thank you.
42 MR MALLIA: If Your Honour pleases.
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