Director of Public Prosecutions v Ozkan
[2013] VCC 1369
•29 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-12-02299
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERGIN OZKAN |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 July 2013 | |
CASE MAY BE CITED AS: | DPP v Ozkan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1369 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Ellis | |
| For the Accused | Ms N. Kaddeche |
HER HONOUR:
1 The circumstances underlying your offending are as follows. In October 2011 the Victoria Police force commenced an investigation into the trafficking of methylamphetamine by one Rabih, R-a-b-i-h, Haddara, and Eli Estabador, and the possession and sale of unregistered firearms by Haddara. Haddara and Estabador were co-owners of a business located at 14 Spencer Street, Sunshine West. During the course of the investigation police became aware of other participants, including yourself. The investigation proceeded largely by way of surveillance and the use of covert operatives, and continued until the ultimate arrest of the participants in July 2012.
2 Your offending is confined to two discrete incidents. The first occurring on or around 16 April 2012, whereby the covert operative made arrangements with Haddara to purchase a firearm with ammunition. A number of telephone conversations were intercepted pursuant to police association, pursuant to the police surveillance, and ultimately it was agreed that the covert operative would pay an amount of $6,000 for a semiautomatic weapon, an AK47.
3 Your role in relation to the sale of this weapon to the covert operative was essentially that of a henchman, if I can put it that way. The situation was that there were a series of telephone conversations between yourself and Haddara where you were asked by Haddara to bring a large box, which was ultimately used to conceal the weapon in it. You were also involved in keeping surveillance of the covert operative as he waited in his car at Spencer Street in Sunshine West. And the car, and ultimately when the gun was handed over by Haddara to the covert operative, it was taken from the back of your car inside the box that you had provided on Haddara's request. In addition, you made, had conversations to Haddara in which you verbalised your support to him where you said that if there were any problems with the covert operative, you would "fly in and charge the cunt down."
4 Ultimately the covert operative purchased a .762 calibre SKSM semiautomatic rifle with a 29-round magazine and rounds of .762 calibre ammunition, which underlies Charge 1 on the indictment and the summary charge of possessing cartridge ammunition. On 4 May 2012 Haddara made arrangements for a sale of methylamphetamine to a covert operative, which took place at the mechanical shop in Spencer Street, where the covert operative met with Haddara, at which time you were present. You were ultimately asked by Haddara to go and retrieve "Your bag" from an office upstairs where the co-accused Estabador was also conducting drug deals in the office. You returned with a zip lock bag containing about one and a half ounces of a white crystal substance, later analysed as comprising methylamphetamine, or ice. You gave it to Haddara, and remained whilst Haddara scooped out seven grams of ice with a $50 note. You also were asked by Haddara to get some scaled, as the ones he was using were not working. You left and returned with scaled, handing them to Haddara. The operative then paid $3600 for seven grams of methylamphetamine, of, I think it was a 60 per cent purity. You then returned the bag of methylamphetamine to the upstairs office at the request of Haddara.
5 You were ultimately arrested by police on 17 July 2012, and gave no comment answers to a record of interview. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The maximum penalty for possession of an unregistered category D handgun is 240 penalty units and/or four years' imprisonment. For a second offence the penalty is 1200 penalty units and/or ten years' imprisonment, which has application in your case because of a prior matter. The maximum penalty for possession of cartridge ammunition is 40 penalty units. You indicated a plea to - you indicated an intention to enter a plea of guilty to the offences on 2 November 2012 prior to an application for summary jurisdiction being refused in December 2012.
6 This matter was adjourned on the basis of a contested plea, but that matter was resolved. It is accepted by the prosecution that you entered a plea of guilty at a reasonably early stage.
7 I have dealt with the co-accused Estampador, and an associate Menorea, who were involved in much more extensive offending involving trafficking on a continuous basis, and each of them was sentenced by me to sentences of imprisonment to be immediately served.
8 I now turn to your personal circumstances. You are 29 years old, your family is of Turkish origin, and your parents separated when you were very young. After some dislocation you were ultimately raised by your mother and then stepfather in Sydney and Melbourne, completing Year 12 at Strathmore High School. You studied two years of a business and finance course at VUT before leaving to take up employment in your mother and stepfather's truck transport business in 2003. You come from a good law-abiding family, your mother was for six years a security prison guard in New South Wales before being involved in the transport business. She now works as a driving instructor. You have a brother who is a trainee pilot, and a sister who's just completed a law course, and you have a teen age stepsister who is still at school.
9 In 2007 your mother and stepfather separated, he simply leaving the business, and then you taking it over and running it until early 2012, that business providing an income for the rest of the family. In 2011 you became engaged to your long-term girlfriend, who works with the Australian Health Practitioner's Regulation Agency, and would appear also to be of good character. You were supported in court by a number of family and friends.
10 You appeared before the Magistrates' Court in 2006 charged with possessing amphetamines and possessing an unlicensed firearm, and were placed on an undertaking to be of good behaviour. In a helpful plea, your counsel informed me you were a recreational user of amphetamine, at the time the firearm involved was a dismantled BB gun belonging to your cousin, found in the back of your car. I accept the submission that the relatively minor nature of that offending was reflected in the penalty imposed at the time, and that it has little effect insofar as the sentencing exercise before me.
11 The nature of that offending does not lead me to the view that it is relevant to the sentencing exercise before me. The family business was largely reliant on a contract with Linfox, which in later years severed association with a number of smaller transport operations such as yours, and ultimately in the downturn the business was lost, you selling your last truck in 2012 and still paying about $1000 a month on loans attached to the purchase of that vehicle. You apparently met Haddara due to a mutual interest in car racing where you were introduced by a friend who also knew him. It would seem you very quickly became involved in Haddara's life at a time when the writing was on the wall insofar as the demise of your family business was concerned. It was not put that as a result of that association you became addicted to amphetamines, you being at that stage a regular but recreational user of the drug.
12 Not a great deal was said about your association with Haddara, but it certainly appears that since your arrest in July 2012 you have severed contact with him. You were released on bail to reside with your mother, you having previously lived with your fiancée and her grandmother, and remain in residence at that address.
13 In evidence on the plea your mother said you had been a hard worker who put in long hours at the family business before it's demise. She said she checked on you constantly, that you, had spent much of your time on bail searching for work, which you did not obtain until about three weeks before the plea, and in the meantime did obtain a forklift licence. She said you rarely went out and that she saw no sign of drug use in you, and certainly it appears you have not re-offended since. You now have employment with Linfox as a forklift driver, your aim being to obtain a licence ultimately to drive prime movers.
14 As I have said, you are well supported in court by family and friends. In a written reference your fiancée Michelle Powers commented on your hard work in the family business, and your great regret about offending. She said that the two of you have spoken in some detail about it, and that you were particularly disappointed at the impact your actions have had on both her and your family. Your work as a forklift driver also carries with it a regular compulsory urine screen for drug use, one of which you have already undergone, and was proved negative. Thos drug screens will continue on a regular random basis whilst you are employed there.
15 The offending is extremely serious, and unsurprisingly it was the prosecution submission that you should be sentenced to a term of imprisonment to be immediately served. Insofar as the firearm offences are concerned, the prosecution has conceded it could not contend that you did more than supply a box to conceal the gun. Nevertheless you were very much involved in the surveillance of the covert operative both before and after the firearm was handed over, and as I said, it was taken from your car in the process. The firearm itself was a very serious weapon, a semiautomatic capable of great destruction and entirely illegal. Illicit trade in such weapons poses enormous danger to the community, and the courts are expected to respond with particular severity in relation to such offending.
16 Your presence and involvement in the drug trafficking charge is also serious, and both pieces of offending demonstrate knowledge by you of Haddara's criminal activities, and a willingness to assist in them. Ordinarily I would not hesitate to do as the prosecution have submitted I should. However, regular police surveillance of Haddara's activities from late 2011 to July 2012 did not reveal your involvement in anything other than these two discrete incidents. I am satisfied that you have severed your connection with him and his criminal associates, you have not offended for 12 months, your prior history is limited, and although at first blush that offending is similar, the circumstances are not, as I have said, such that I should regard them as relevant to the sentencing exercise before me.
17 You are not a major player or instigator in the commission of these offences, unlike the co-accused I have dealt with in relation to the operations of the illegal activities being conducted from Haddara's garage. The plea was made, it was conceded to be a reasonably early stage, there being some consideration of a context based on the second statement by the covert operative which was made at a late stage and very much enlivens the role assigned to you in the drug trafficking compared to his first statement. I accept that your plea of guilty does demonstrate a genuine expression of remorse and should be given more than utilitarian weight.
18 You have a strong work history involving a greater than usual degree of responsibility in providing for your mother and siblings by running the family business for some years, and I accept that your involvement with Haddara occurred at a time when factors beyond your control were clearly leading to the end of your family company. There was no evidence of enrichment, your role, as I have said, appears limited to two occasions as a sort of henchman. In my view, you have very good prospects of rehabilitation, you have strong family support, you have not re-offended, and your prior criminal history is some years old and limited.
19 The seriousness of the offending however is such that in my view a sentence of imprisonment should be imposed, but because of the mitigating factors which I have outlined, it will be wholly suspended. Stand up please. I therefore sentence you as follows.
20 On Charge 1 you are sentenced to nine months' imprisonment.
21 On Charge 2 you are sentenced to nine months' imprisonment.
22 On Charge 3 you are sentenced to one month imprisonment.
23 Six months of the sentence imposed on Charge 2 will be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of 15 months. I order that this sentence be wholly suspended for a set period of two years.
24 Now, I am sure this is a great relief to you, and can I tell you, you are extremely fortunate not to be going to gaol today. Your offending was very serious. I don't know if you thought you were some sort of associate of Al Capone and getting some sort of offset to the undoubted distress you felt about your family business failing, but you were mixing in very dangerous company, and you were involved in extremely dangerous criminal offending. The sort of weapon that was involved is the sort of weapon that was outlawed following the Martin Bryant massacre, do you understand? So you know, you must know the sort of damage that that weapon can do in the wrong hands. You could have been responsible for a great deal of damage to human life. Additionally, methylamphetamine is one of the addictive substances on the illicit substance market. This court sees person after person paraded before it with ruined lives, who are at the mercy of people like Haddara, who never get a chance to come back, who end up committing appalling offences, destroying their lives, taking their families down with them.
25 So the two sets of offending you were assisting Mr Haddara in had the potential to ruin a score of lives, do you understand that? You've got a 13-year-old sister, correct? Imagine if she got onto ice. Imagine if she was shot down at the hands of some maniac with a semiautomatic weapon. So you have been involved in two aspects of offending which have a maximum potential to cause harm and loss of life, and you should be extraordinarily ashamed of yourself.
26 You have a very good family, you have a lot of support, you have made efforts yourself, I am not hugely impressed by your employment efforts. I don't know whether you sat at home feeling a bit sorry for yourself, you certainly looked very sorry for yourself in the dock, I have to say. All right? And you have no reason to be, you should be extremely thankful that I am not sentencing you to a term of imprisonment similar to the one that I have now suspended. But I need to make it extremely clear to you what the consequences of you re-offending are. If you commit any offence punishable by imprisonment, that does not mean you have to be sentenced to imprisonment, that simply means you have to commit an offence for which you could be imprisoned, such as possessing amphetamines, such as shoplifting, something small. If you get charges again in the next two years, which is the period of suspension, and you are dealt with by a court for that, whether you receive gaol or not, you will be brought back before me on a breach of suspended sentence, do you understand?
27 Everything I say today will be transcribed and filed away, so that if you ever appear in front of me, I will have ready access to the sentencing remarks I have made today, I will know all about you and I will remember you.
28 Now, Parliament makes it extremely clear that a person who breaches a suspended sentence must, unless there are extraordinary circumstances surrounding his offending, and that means basically you have to have offended in order to save the western world from nuclear war, a court must, I would have no choice, a court must make you serve all or part of the suspended sentence, you've got 15 months gaol hanging over your head for the next two years, do you understand me?
29 OFFENDER: Yes.
30 HER HONOUR: So you are at risk. You are at risk. And let me also make it clear to you, if you have any idea of offending in the future, that if you are apprehended and brought before a court in the future, the record will be before the court that you have gone before the County Court, and you would know perfectly well that you only appear before the County Court if your offending is of a serious, sufficient seriousness to warrant being heard by the County Court, so you've come in big-time, if I can put it that way, Mr Ozkan. That not only did you appear before the County Court, you appeared before the court on two extremely serious charges. And that court would have access to my sentencing remarks, and the records are with the prosecution as to the summary describing your offending, that is you were involved in the disposal of a semiautomatic weapon, and you were helping Mr Haddara, a well-known criminal, distribute ice, a lethal and highly addictive drug.
31 You have played with fire, and you have lost. So if you have got any thought that you might offend in the future, in the next two years, you will face a further 15 months on top of anything else that a court might impose upon you, and if you ever offend again, there will be a record of you having been given an opportunity for serious offending by the County Court. So really, you are in the position, Mr Ozkan, if you offend again, of receiving a gaol sentence. And you have escaped a gaol sentence today by the absolute skin of your teeth, and I can assure you that if you return to me having offended whilst on this suspended sentence, I will not hesitate to gaol you, as Parliament says that I must. Are we quite clear? So you have not walked away with nothing today. The community doesn't really understand, it seems to me, the way suspended sentences operate, you walk away today with a heavy burden on your shoulders. You are on the brink of going to gaol, and you will remain that way for the next two years, do you understand?
32 OFFENDER: Yes.
33 HER HONOUR: Thank you. All right, you can have a seat please. Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to 15 months' imprisonment and order that you serve a minimum term of nine months. I order, I will sign the disposal and forfeiture orders. Thank you.
34 MS ELLIS: There was also the order for the forensic sample.
35 MS KADDECHE: We have nothing to say in relation to that.
36 HER HONOUR: Yes, I'll order that too. I'll hand back the - I'll keep the criminal history, sign the forfeiture orders. All right. Now, I'm also ordering that police obtain a forensic sample. What that means is that - just the one, have we got the one where you attend the police station? Right, what's the police station that you must - where do you live, Sir? Taylors Lakes, is that right?
37 COUNSEL: I think Keilor Downs might be the station, that's where he was reporting, Your Honour.
38 HER HONOUR: All right, do you know what the address is, please?
39 MS ELLIS: 1 Copernicus Way, Keilor Downs. Copernicus Way.
40 HER HONOUR: 1 C-o-p-e-r-n-i-c-u-s?
41 MS ELLIS: Way, Keilor Downs.
42 HER HONOUR: I should add, Mr Ozkan, that if you do breach the suspended sentence, you will be brought back before me. It is the sentencing judge who must deal with the breach, so I'm warning you, I will remember you, I will have all this information at my fingertips, and you can expect no mercy, do you understand? I think that's the lot. Now, I'll just see if there's anything else I need to return. That can go back to the prosecution. That goes back to defence. We keep the criminal history, don't we? Thank you, Ms Ellis. We keep the criminal history, don't we? Thank you, Ms Ellis.
43 MS ELLIS: Your Honour, could I also, if this matter's completed, now raise the matter of Estampador - - -
44 HER HONOUR: Absolutely.
45 MS ELLIS: With respect to the forfeiture application?
46 HER HONOUR: Yes.
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