Director of Public Prosecutions v Ozyurt
[2014] VCC 1383
•26 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01979
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERINC OZYURT |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2014 | |
DATE OF SENTENCE: | 26 August 2014 | |
CASE MAY BE CITED AS: | DPP v Ozyurt | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1383 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Kapitaniak | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Balmer & Associates |
HER HONOUR:
1 Erinc Ozyurt, you have pleaded guilty to one charge of armed robbery, the maximum penalty for that offence is 25 years’ imprisonment. You have also agreed to have a summary charge of failing to answer bail dealt with by this Court and have entered a plea of guilty to that charge, referrable to your failure to appear on 17 July 2013. The maximum penalty applicable for that offence is 12 months’ imprisonment.
2 You have also admitted breaching the suspended sentence imposed by her Honour Judge Cotterell on 31 May 2012. That sentence was breached by your offending before me, specifically the charge of armed robbery, not the charge of failing to appear.
3 Sections 83AR and 83AB Sentencing Act 1991 are relevant to this breach. Prior to handing down sentence today, I received written submissions relevant to this breach from your counsel, Mr Tovey. I have read those helpful submissions.
4 Both counsel also made oral submissions relevant to this admitted breach of the suspended sentence imposed by her Honour.
5 I turn firstly to your offending which occurred on 23 February 2013, and the victim of that offending, Thomas Gowan.
6 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
7 I turn to a brief summary of that offending. At the time of the offending, you were 28 years of age and at sentence 29.
8 On 23 February 2013 at 2.01 pm, your victim Thomas Gowan, placed an advertisement on Gumtree seeking two tickets for a music festival called Golden Plains. Mr Gowan included his mobile phone number in the advertisement and stated $600 or negotiable was the price he was willing to pay for the tickets.
9 At 3.57 pm on the same day he received a call on his mobile phone from a man who introduced himself as “Richard”. The number shown on the victim’s phone was 0434 585 920.
10 You, posing as Richard, informed Mr Gowan you had four tickets to Golden Plains and were selling them because your friend had hurt his leg. You said you were in Camberwell and could not hold the tickets for Mr Gowan as others wanted them.
11 Mr Gowan said he was willing to come and collect the tickets and you responded by saying you would be in the city that night and would message Mr Gowan regarding time and place.
12 At 4.13 pm Mr Gowan sent a message to you saying “Thanks man, let me no when you want me to head into the city”.
13 At 4.25 pm you called Mr Gowan and said that ―
(a)your cousin worked north side and he had two tickets as well, and
(b)that it would be more convenient for your cousin, Adam, to have the tickets collected from him and you would text him the address.
14 At 4.34 pm you sent a text message to Mr Gowan providing an address in Somerton to meet to collect the tickets, the address supposedly your cousin’s workplace. As Mr Gowan was texting a reply, you called him at 4.34 pm and asked him to leave now to collect the tickets. Mr Gowan said that it would take him about 30 minutes.
15 You told Mr Gowan your cousin needed to know what time he would be arriving, as he was working and needed to take a break.
16 On the way to Somerton, Mr Gowan received a further call from you at 5.03 pm, asking how far away he was as your cousin had to take his break. Mr Gowan said he would be there as soon as he could and that it would be close to 5.30 pm.
17 When Mr Gowan pulled up at the Somerton address, he received a call from you. Phone call records indicate that call was made at 5.17 pm. Mr Gowan told you he had just arrived and you said “Oh, you’re in a white car, are you?” Mr Gowan thought that was strange, but proceeded to pull up behind a truck, as instructed by you.
18 Within a second, Mr Gowan saw you walking up to him and approach the driver’s side door. The car window was down about 10 centimetres and you told Mr Gowan he had to wait for your cousin who was nearly on his break.
19 You were standing near Mr Gowan’s car, then walked around to the passenger side door. Mr Gowan thought that was strange and decided to get out of his car. You and Mr Gowan chatted for a minute or so and then you said “Here’s what you should do, get in your car, do a U turn, give me the $600 and I’ll get the tickets”.
20 Mr Gowan said he would “rather see the tickets first”. You replied “What, you don’t trust me?” Mr Gowan said “Oh no, it’s just that shit happens”, saying a friend of his had been "ripped off".
21 You then pulled out a flick knife and opened it, described by Mr Gowan as a knife with a black handle with something silver on it and a blade about 10 centimetres long, the same size as the handle.
22 You demanded money from Mr Gowan, who said he did not have it on him. You repeated your demand and said “Just give me the money”.
23 Mr Gowan pulled out his pockets to show you he did not have money on him and you yelled for him to go and get it.
24 Mr Gowan opened his passenger side door and grabbed the money from the glove box. You were leaning against the passenger side of the car with the knife pointed at Mr Gowan. He handed you $600 in $50 note denominations.
25 You took a few steps back and yelled something about bashing your mate a week before, which Mr Gowan denied. You then told Mr Gowan to “get out of here”. Mr Gowan climbed across to the driver’s seat and drove off. As he drove off, he called ‘000’ and reported the armed robbery.
26 You drove into a BP service station and uniform police attended at 5.35 pm.
27 On 28 February 2013 Mr Gowan compiled a face image of you at St Kilda Road Police Complex, and a warrant was executed subsequently at your property at Roxburgh Park.
28 Later that same day, you handed yourself in to Fawkner Police Station and, when participating in a record of interview, answered “No comment” to questions from police. To answer that way was, of course, your right.
29 Turning to the summary offence before me, you were then to appear at Court on 17 July 2013 and failed to do so as you went overseas. You were then re-arrested at Melbourne airport on your return on 2 September 2013. As at the date of this plea hearing, you had spent 44 days in custody declared as pre-sentence detention between 2 September 2013 and 15 October 2013.
30 You have admitted a number of prior court appearances, commencing with an appearance on 28 May 2003 involving dishonesty and driving offences. On that occasion, without conviction, the matter was adjourned to 28 May 2004 and you were disqualified from driving for a period of six months.
31 Your next appearance was on 15 January 2004 for dishonesty offences and, without conviction, the matter was further adjourned to 14 January 2005.
32 You next appeared at Broadmeadows Magistrates’ Court on 26 May 2008 on driving offences. With conviction, you were fined $500 and your licence was cancelled for 12 months.
33 You then appeared on 17 April 2009 in relation to charges of possession of a controlled weapon and a handgun and were convicted and placed on a Community Based Order for 12 months with conditions.
34 On 7 May 2009 you failed to comply with the previous undertaking to which I have referred. On that same date you were also dealt with for the offence of driving whilst disqualified and received one month’s imprisonment to be served by way of an Intensive Correction Order.
35 You next appeared at the Broadmeadows Magistrates’ Court on 27 October 2009, for failing to comply with the earlier mentioned Community Based Order and, on the firearm/weapon offences, you were again placed on a Community Based Order for 12 months.
36 You further breached that Community Based Order on 5 August 2010, and on the two charges involving a weapon and handgun were sentenced to three months’ imprisonment, wholly suspended for 18 months. That same day you also appeared for the offence of driving whilst authorisation was suspended, receiving three months’ imprisonment, again wholly suspended for 18 months.
37 You then appeared on 29 February 2012 on a charge of theft from a shop and received 14 days’ imprisonment.
38 On 29 February 2012, in relation to the charges involving the weapon and firearm, the three month suspended sentence was restored. On that same date you were also breached in relation to the suspended sentence imposed for the driving whilst your licence was suspended
39 On 31 May 2012 you appealed the decision of the restoration of the three months imprisonment ordered on 29 February 2012, and no further order was made. On that same date, at the Melbourne County Court, you appealed the earlier charge of theft from a shop and one month’s sentence was imposed suspended for 12 months in relation to that.
40 Your offending before me relevant to the armed robbery breached the suspended sentence imposed on 31 May 2012. That breach is relevant when assessing your rehabilitation prospects given your failure to comply with a Court order. You are now also to be re-sentenced by me for that breach, Judge Cotterell not being available to hear the breach of her Honour’s Order.
41 The suspended sentence was imposed for a charge of theft relating to a phone charger, valued at $19.95, from a service station on 7 June 2011.
42 You then appeared on 24 September 2012 on a charge of obtaining property by deception and were, without conviction, fined $1,200.
43 You have a history involving dishonesty and your offending before me is a very worrying escalation of your prior offending.
44 The victim of your offending has suffered considerably, and I shall return to pass remarks on that shortly.
45 You have pleaded guilty to the charges before me and admitted the breach, and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. In particular, I refer to Mr Gowan, albeit I note Mr Gowan was cross-examined at a contested committal.
46 Further, I take into account in your favour that you intimated early your intention to plead guilty to these charges following the committal, and upon being advised of breach proceedings in the past few days have admitted your breach promptly.
47 In the circumstances, I am prepared to accept your plea of guilty to the charges before me and admission of the breach indicates remorse for your offending.
48 I received a written outline of submissions from Mr Tovey, who appeared on your behalf relevant to the charge of robbery and failing to appear, which I have read, and he also addressed those submissions during the course of your plea hearing.
49 Mr Tovey conceded that your offending on this occasion was serious. Also that the circumstances of your offending involved you, with a knife, in close proximity to the victim of your offending. In relation to your offending, in my opinion, there was a degree of planning, although I acknowledge the time of planning was not extremely lengthy. However, it included you taking the knife to the scene, and involved you phoning and/or texting the complainant over a time arranging to meet under the pretext of supplying the concert tickets.
50 A further circumstance of this offending became apparent during the course of your plea hearing. Whilst discussing the circumstances of this offending I became aware you had subsequently appeared at Court on 11 April 2014 and were dealt with for the offence of obtaining property by deception, that offending having occurred just three days prior to that before me, that is, on 20 February 2013. Of concern, that offending also involved you using ‘Gumtree’ to obtain funds for concert tickets, ultimately not provided. It also became apparent you had similarly offended in November 2011, again using Gumtree, and involving concert tickets. This further, in my opinion, adds to the level of planning in your offending before me. I understand from Mr Tovey that at the subsequent Court appearance for the charge of obtaining property by deception on 11 April 2014, you were placed on a Community Corrections Order. Your subsequent Court appearances are relevant when assessing your rehabilitation prospects and also provide details of the circumstances surrounding your offending before me, and by that I mean the same type of offending involving concert tickets and Gumtree.
51 I discussed with Mr Tovey your history of breaching Court orders which included breaching of a prior Community Corrections Order, and breaching of an undertaking. This current offending also breached a suspended sentence. These, as I discussed with Mr Tovey at length during your plea hearing, and the transcript will reveal that discussion, were very concerning and relevant to assessment of your rehabilitation prospects.
52 Mr Tovey urged your prior offending had not involved violence and that is so. I am, however, concerned about the escalation of your offending on this occasion and in the context of a daily ice habit.
53 Mr Tovey submitted that in the 18 months since you were questioned for this offending and released on bail on 7 March 2013, you had not committed any further offences. An analysis of that 18 month period was undertaken during the course of your plea. It was apparent that for a period of that time, specifically from June to September 2013, a period of approximately three and a half months, you were out of the country, and I note in breach of your bail conditions. Further, it is apparent that since your return to Australia on 2 September 2013, you had then spent 44 days in custody. Therefore, it would appear the 18 months initially urged by Mr Tovey was significantly less. I accept, however, that there were a number of months since you were charged when you had not further offended.
54 Regarding your drug use, your instructions were somewhat different from that given by you to Mr Joblin. You instructed Mr Tovey you still used ice but not as frequently as at the time of this offending. I was told you had attempted to address your drug use since this offending, and had reduced it, in the last six months in particular, to use every four to five weeks. I note Mr Joblin’s report and assessment was based upon, in part, your instructions to him in which you said you had ceased your use of methylamphetamine. The transcript will reveal my discussion with Mr Tovey in that regard. Unfortunately, it was observed by Mr Joblin there was no independent material before me to support your assertion of abstinence. Perhaps the reason for the lack of that material is now clear. I also note that prior to being dealt with for this offence, you had not undertaken, of your own volition, any form of drug counselling despite your previous daily and now continued drug use.
55 Regarding your rehabilitation prospects, it is clear they are linked to your drug use. You are still using ice, and that is concerning. It would also appear that in the past you have breached community corrections order by not attending for work due to a back injury, but more troubling for failing to attend for supervision and other conditions in relation to treatment for drug use. It is very difficult on the material before me to be confident regarding your prospects of rehabilitation. Although, having said that, when sentencing I must take into account your rehabilitation prospects as they may be and I do.
56 Your brother, Eray Ozyurt, gave evidence before me. He confirmed your father had a stroke two years earlier and required care. Your mother was also not well. I discussed at some length with Mr Tovey the difficulties I had confirming your parents’ current health status and that the evidence given by your brother left a number of questions unanswered regarding the degree of their incapacity. I do, however, accept your parents are not in good health consistent with the medical reports that were before me albeit dated in respect of your father, the report relevant to your mother being recent, and you not being at home to assist them will make it more difficult not only for them but also you, whilst you are in custody, being aware you have left this responsibility to your brother and/or others.
57 Your brother also gave evidence he first became aware you had issues with drug use when he was about 17 to 18 years of age. From his observations when you used drugs you became very isolated. He gave evidence the reason for you failing to attend Court on 17 July 2013 was because the family took a trip to Turkey. It would seem your parents were able at that stage to travel. Unfortunately you determined to leave without seeking to vary your bail conditions to allow that travel. Not surprisingly upon your return in September, you were arrested.
58 Your brother also gave evidence that he worked full time and six days per week in the family carpet business. He described you as being very upset about your offending. You had shown your remorse to him and I also note that in the report of Mr Joblin, to which I will shortly refer.
59 I was told a little more of your family history by Mr Tovey. You completed Year 10 then went into a cabinetry apprenticeship which you ultimately completed, later entering real estate.
60 In 2003 to 2004 you were at Court for offences of theft of a car and proceeds of crime, which I understood was purchase by you of a stolen mobile phone. You were not a drug user at that time and just 18 years of age. There was then a gap in your offending for about four to five years during which time you had employment with a real estate firm until you lost that employment upon your criminal record becoming known.
61 You were in a relationship until the beginning of 2012 which prior to that had given you some support in your life. By 2009, I was told, however, your methylamphetamine use had risen to a high level.
62 At that time the family’s answer then was to send you to Turkey for a few months. There was also material before me from Roxburgh Park Superclinic dated 9 August 2011 which outlined your health issues, in particular between 2008 and 2010.
63 Mr Tovey had discussed that report with Mr Joblin. The contents of that Report did not cause Mr Joblin to change his overall assessment of you.
64 I turn then to the Report from Ian Joblin, Psychologist, dated 12 August 2014 who set out further details of your background and history. You are, at sentence, as I have said, 29 years of age. Your parents were separated but still live in the same house in Roxburgh Park. You had been until recently working in the carpet laying business, which was now left to your brother to run. You were caring for your father who had a stroke two years ago. You described a good relationship with both your parents.
65 Your primary school was Dallas North, then Gladstone Park. You attended Broadmeadows High School for Years 9 and 10, leaving after you completed Year 10.
66 You then began a course in carpentry and attended trade school, attending for two years but not completing the course. You then began working in a real estate agency in Coburg.
67 You worked for a real estate agency in Coburg until a police check revealed your prior criminal history. Since you had a back injury, you have not been able to work and had been on a disability pension from October 2013. You reported you had lived at home with your parents all your life. You had been in a relationship until February 2013.
68 At the time of interview, you were receiving physiotherapy and hydrotherapy for your back injury, and medication.
69 Regarding your alcohol and drug use, you reported alcohol had not been an issue for you and whilst you had experimented with cannabis as a teenager such was not of ongoing concern. You denied the use of any other drug apart from methamphetamine.
70 You described that as a result of being unable to work, you began using ice, which became an addiction. You reported that at the time of this offending before me you were using ice daily, and your motivation for this offending was to clear a debt you had to a drug dealer and to purchase more methylamphetamine. After you left Melbourne on 18 June 2013, you made efforts to stay away from ice use. You decided contrary to your bail conditions, you would leave Australia and go to Turkey between June and September 2013. When you returned, you were arrested, remanded in custody until being bailed about five weeks later.
71 You were emphatic that prior to going to Turkey and to the present you had not used ice and it would seem that is inconsistent with your instructions to Mr Tovey. But I agree with Mr Joblin it is unfortunate you have no urine screening test results available to confirm your claim.
72 Turning to his assessment, you did not have any evidence of diagnosable psychological abnormality, nor did you present with an antisocial personality disorder. He considered it was logical to conclude that with the end of drug use (although I note your instructions to the contrary), your offending in the manner currently before the Court would likely also cease.
73 I also received a report from Dr Bernard Infeld, Neuropsychologist, dated 1 March 2012, referrable to your father and his stroke on 22 February 2012. At that time Dr Infeld considered your father would make good progress and good recovery.
74 There was also a brief recent Report from Paul D’Urso, Neurosurgeon, dated 18 July 2014 regarding your mother referrable to her chronic back pain, right leg pain and episodes of urinary incontinence. Reference was also made to the medication she was then taking.
75 Also before me was a report from Dianna Liu, Physiotherapist, Physio Choice, dated 30 June 2012, referrable to your back problems. Also a report from Di Yendall, Physio Choice, dated 3 August 2011, confirming your attendance with Ms Liu.
76 There was also a Report from Dr Tho of Roxburgh Park Superclinic, dated 4 May 2009, referrable also to your back pain, and another report from Dr Noha Orman Aly, Roxburgh Park Superclinic, 9 August 2011, detailing your medical condition in 2008-2010 and prescribed medication at the time of that report.
77 There was also a reference from your parents, Aysun and Saadettin Ozyurt, dated 15 August 2014. You regret your offending and were remorseful for it. You assist both your parents, your father since he had a stroke, including dressing him and taking him to appointments. Your drug use had now stopped from every day use to frequent use, they said, and you were working on stopping it completely and had done so in the last few weeks. Reference was also made by them to your severe back problems since 2003 or 2004.
78 Also before me was a certificate from Kangan Batman TAFE dated July 2006 referrable to you having completed a Work Effectively in the Real Estate Industry course, Address Legal and Ethical Requirements of Property Sales, and Address Legal and Ethical Requirements of Property Management.
79 Further, there was a certificate from Kangan Institute referable to Certificate II in Transport and Logistics (Warehousing and Storage) where you completed four of the six subjects relevant to you in 2010.
80 Mr Tovey relied upon a number of factors on your behalf during the course of the plea hearing including your plea of guilty, to which I have already referred, and your admission of the breach, as I have already referred, and that you indicated remorse for your offending, again which I have noted. You had solid family support, he said, and a positive work history prior to your back injury. It was your life’s stressors which led to your increased drug use prior to offending.
81 Regarding your prior criminal history, Mr Tovey submitted it mainly involved deception offences, and that they were mostly drug-related. You do not have any history of violent offending, and I am of course aware of that.
82 Regarding your offending before me, he conceded the offence of armed robbery was a serious offence, and it is. He urged it be characterised as a moderate to low example of this type of offence. In my opinion, it is closer to moderate if not slightly higher, I accept not at the high end of the range.
83 Mr Tovey was not relying on R vVerdins[1] to moderate your moral culpability, nor to enliven any of the other principles of Tsiaris[2] reinstated in Verdins. On the material before me such was an appropriate concession.
[1] (2007) 16 VR 269
[2] [1996] 1 VR 398
84 Mr Tovey submitted the running of the family business would fall to your brother whilst you served a jail term, although Mr Tovey was not, correctly in my opinion, submitting family hardship would mitigate your sentence, conceding the circumstances were not “exceptional”. You nevertheless knew your family would have to bear the brunt of caring for other family members and running the business which, I accept, will likely weigh on you in custody as part of general sentencing principles.
85 Mr Tovey urged there were some prospects of your rehabilitation in that your drug issues had improved since this offending with no further offending since you failed to answer bail. Further, regarding your rehabilitation prospects, he referred to your lack of prior criminal history for violence.
86 He submitted there was therefore less need for community protection and specific deterrence. I however, disagree with that.
87 Mr Tovey ultimately urged that whilst a term of imprisonment was appropriate for this offending, it could be dealt with by way of the imposition of a term of imprisonment with a significant period of supervision and assistance within the community. Mr Tovey accepted however you had difficulty complying with Court orders in the past, which he suggested, was largely attributable to your inability to complete community work. That, however, was only referrable to part of the breach.
88 Regarding your rehabilitation prospects, I have concerns particularly given your ongoing drug use being the background to most of your prior offending, and your continued use of ice. However, having said that, as I have said before, I must seek to maximise your prospects of rehabilitation as they may be.
89 There was a victim impact statement before me from Thomas Gowan, sworn 5 August 2014. He described that for a few months after your offending, he lived with fear. It became a sleeping problem. Then his fear turned to anger. He would snap over small frustrations. This put a strain on his relationship with his girlfriend. He kept replaying your offending against him in his mind. His work and study were adversely affected by thoughts of your offending and he also lost the $600 which had taken him months to save.
90 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
91 Mr Tovey repeated his reliance upon your plea of guilty, your level of remorse, and that your history did not involve violence. He submitted a significant period on parole would provide the necessary supervision for you to remain drug-free and offence-free. He urged there be a lengthy period on parole. Further, leaving your family and your brother in particular to cope with your parents would weigh heavily on you in custody. Mr Tovey was not relying as I said on family hardship when sentencing you. Again, as I say, such was an appropriate concession.
92 The prosecution, represented by Ms Kapitaniak, submitted that your offending was at the moderate-high level. In my opinion, the offending is moderate or, as I said, a little higher than moderate as I discussed with Mr Tovey, and as I have previously stated in these sentencing remarks.
93 The prosecution referred to the planning involving a knife and also arrangements being made on that same day to meet with the victim.
94 The prosecution conceded there had been remorse indicated by you to Mr Joblin. It was also accepted by the prosecution you had significant back trouble, though not activating the principles in Verdins.
95 The prosecution submitted there should be an immediate custodial sentence for your offending.
96 I was also taken to the sentencing snapshots and I discussed those with both counsel.
97 When sentencing you I am aware this is your first time in custody undergoing a sentence.
98 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account the need for general deterrence which is of considerable importance in a case such as this.
99 There is also, in my opinion, a need for specific deterrence when sentencing you as you do have an extensive prior criminal history, a history of failing to comply with Court orders and also a relevant history in relation to dishonesty offences, albeit not of the same type as the armed robbery before me.
100 There is also a need to protect the community from you in relation to your offending.
101 I am also required by the Sentencing Act to manifest the community’s denunciation of your conduct and to impose a just punishment.
102 Turning to re-sentencing you for the theft of the phone charger, given the sentence I intend to impose relevant to the other charges before me, I do not intend to impose a further sentence pursuant to s83AB (the Act).
103 It is appropriate in your case that you be ordered to serve the sentence that was suspended, ie: one month. However, as I must also take into account the principle of totality I will ultimately be directing that only 14 days of that restored sentence of one month be served cumulatively upon the sentence I otherwise impose today.
104 On Charge 1, you are convicted and sentenced to 3 years' imprisonment.
105 On the Summary Charge 7, you are convicted and sentenced to 2 months' imprisonment.
106 On the charge of theft, the sentence of 1 month imprisonment is restored.
107 I direct the following in relation to cumulation.
108 Charge 1 is the base sentence and I direct that 14 days of Summary Charge 7 be served cumulatively upon Charge 1.
109 I direct that 14 days of the 1 month restored sentence relevant to the breach of the suspended sentence be served cumulatively upon Charge 1.
110 For clarity the sentences of cumulation are cumulative upon each other and upon the base sentence.
111 That results in a total effective sentence of 3 years and 28 days' imprisonment and I direct that you serve a period of 18 months before you are eligible for parole.
112 In requiring you to serve 18 months, which is less than 50 percent of the head sentence, whilst it is not a mathematical exercise, I do consider that that sentence is at the low end for a period on parole. In other words, I have given you a longer period on parole, if that makes sense, and hopefully counsel will explain it to you.
113 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 55 days in custody by way of pre-sentence detention and direct that this be entered into the records of the Court.
114 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to the charge of armed robbery and failing to appear and been found guilty of those two charges by jury verdict, I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years.
115 The prosecution made application for compensation in the sum of $600. This was not opposed by counsel on your behalf and I make the order in the terms sought.
116 The prosecution also made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Again, this was not opposed by counsel on your behalf and I make the order in the terms sought based on the seriousness of this offending and your prior convictions. It will be for a saliva sample, not a blood sample, and I must advise you the authorities may use reasonable force in order to obtain that sample from you.
117 Are you right with the 55 days?
118 MS KAPITANIAK: Indeed, Your Honour.
119 MR TOVEY: That's right, Your Honour.
120 HER HONOUR: Is there anything that's clear about the sentence? Unclear, I'm talking about.
121 MR TOVEY: Just one matter.
122 HER HONOUR: Yes.
123 MR TOVEY: Whether Your Honour might see it appropriate to give an exhibit number to the submissions that were filed with respect to the - - -
124 HER HONOUR: I meant to.
125 MR TOVEY: Just in relation to the breach.
126 HER HONOUR: Sure, yes, absolutely. I meant to do that, sorry about that, that is my fault entirely. It is Exhibit 8 which we call defence submissions on breach of suspended sentence, all right? Does that satisfy that.
127 COUNSEL: It does, Your Honour.
128 HER HONOUR: I meant to do it. Just one second while I finalise this. Very well, I think that is it. Thank you both for your assistance. You can remove, Mr Ozyurt. Thank you very much, sir. Thanks, Mr Ozyurt.
- - - - - -
0