Director of Public Prosecutions v Sarikaya

[2014] VCC 659

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01094

DIRECTOR OF PUBLIC PROSECUTIONS

v

REMO SARIKAYA

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 May 2014
CASE MAY BE CITED AS:	DPP v Sarikaya
MEDIUM NEUTRAL CITATION:	[2014] VCC 659

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. J. Moore	OPP
For the Offender	Mr A. Coote	Camerons Lawyers

HIS HONOUR: 

1You, Remo Sarikaya, have been convicted after trial of one count of dangerous driving causing death, one count of failure to stop after an accident and one count of failure to render assistance after an accident.  These crimes arise out of circumstances which were fully explored at your trial. 

2On 23 September 2011, you reversed out of a driveway in St Georges Road, Shepparton.  Your car came into contact with an elderly female pedestrian, Ms Jessica Bell, or her walking frame.  That caused her to fall to the pavement and as a result of which, she sustained fatal injuries.  You drove off immediately failing to stop or to render any assistance to her. 

3I regard your driving insofar as you reversed without making proper observations as to what was behind you as towards the lower end of the scale of criminality with respect to that offence.  However, I regard your failure to stop in the circumstances revealed at trial as a most serious example of that crime.  You callously disregarded the responsibilities you owed to your fellow users of the public roads and footpath.  I have no doubt you sought to run away from and deny any responsibility for your actions, which resulted in the death of Ms Jessica Bell. 

4There are two victim impact statements in this matter; Exhibit B and Exhibit C.  I have read them very carefully and I take their contents into account in determining an appropriate disposition.  I accept that both Ms Bell's daughter and her granddaughter have suffered considerably, and I have no doubt the rest of the family have as a result of your actions.  What you did and the consequences of it will be felt by the family for a very long time. 

5As have been pointed out by your counsel, there are some mitigating factors.  You have indicated your remorse although that was in circumstances where it was to a psychiatrist in an interview, and a significant time after Ms Bell had died.  I have been told something of your personal history and your circumstances and indeed, they are complicated.  I found Exhibit D of the greatest assistance and that is the Forensicare report which was prepared by Dr Adam Deacon, a consultant psychiatrist to the Victorian Institute of Forensic Mental Health dated 23 April 2014. 

6I intend to read from the document which he carefully and thoughtfully prepared with respect to your relevant personal and psychiatric history.  You are a 33‑year‑old man previously living in Maroona with a friend.  You are receiving the disability support pension as a result of a diagnosis of bipolar disorder, although you were unable to specify the duration that you have been receiving that for.  You vaguely refer to being married in the past, but now divorced.  You are currently single.  You have a 15‑year‑old son to an ex‑partner and prior to being in custody, you were having contact with your son on a daily basis.

7You were born and raised in Kyabram.  Your parents are both deceased and are of Turkish extract.  Your father died from cancer a few years ago.  You understood your mother to have been killed by a train when she was driving a car when you were very young at the time.  It is your belief that there was a police cover up of some aspects of it, regarding your mother's death.  You have three brothers and one sister.  You also have a brother and four sisters from your father's second partner. 

8You were mostly raised in Kyabram, but you spent time during your childhood in Queensland and Turkey.  You were raised by your father and stepmother and you recall that situation with some fondness in the family environment with your older siblings.  You attended schools in the Kyabram area, and you could not recall, but you believed you may have completed Year 10.  You were expelled at an earlier age in the context of defending your sister, who you said was subject to bullying. 

9You said you were a reasonable student who enjoyed mathematics.  After leaving school, it appears you have been unable to sustain much in the way of employment.  You had casual positions over the years at a local cannery, in a demolition firm and various forms of unskilled farm work.  You were most recently employed approximately four years ago.  You provided a distinctly vague account of your relationship history.  You reported having two significant relationships in your life; the first relationship commenced at age 15 and continued for many years, but did not result in marriage.  You also vaguely referred to being involved in an arranged marriage with a Turkish woman in her early 20s, but you were unable to provide further detail regarding that relationship. 

10Significantly, you initially denied having any history of mental health problems and emphasised that you are always very much in control of your mental state.  However, upon further enquiry you confirmed to the author of the Forensicare report that you had been referred to a psychiatrist, Dr William Orchard, many years ago, in the context of other criminal matters.  You understood that Dr Orchard diagnosed bipolar disorder although the reasons for that diagnosis was unclear to you. 

11You confirm that you only saw Dr Orchard on a couple of occasions and you were prescribed a combination of antipsychotic, mood‑stabilising medication, Olanzapine, and the mood‑stabilising medication Epilim.  You were managed by a local GP, Dr Tisdall, who later died.  In your most recent years your medications have been prescribed by a local GP, Dr John MacKellar and your current list of medications are in the submissions prepared by Mr Kantor. 

12You confirm that you had not required intervention with a local mental health service and you had not required any admission as to a psychiatric unit.  However, the author of the Forensicare report noted in the documents provided that you were admitted to the Acute Assessment Unit within the Melbourne Assessment Prison back in 2002 for a hypomanic episode.  You did indicate that you had experienced the fluctuating pattern of mood changes over the years; mostly depressed states when you were remarkably lethargic, fatigued and withdrawn and you had occasional periods when you were in a more heightened stated. 

13You confirmed you had previously smoked cannabis for many years on a daily basis, but not for the last five years and you deny any other form of illicit drug use.  You had a medical history including being involved in a number of motor car accidents and bike accidents and medical notes confirm a minimal disc bulging at lumbar spine 4,5.  You said that you had been prescribed the opioid analgesic medication, Kapanol, prior to being incarcerated. 

14You expressed some frustration with doctors at the Metropolitan Remand Centre as they had recently reduced your Kapanol dose, resulting in you re-experiencing considerable pain.  The author of the report, noted that you denied a significant criminal history, despite your criminal history report suggesting otherwise. I will refer to that matter in a moment. 

15You indicated this was the third time you had been in prison, the longest period previously being six months.  With regard to the opinion and recommendations of the author of the report, it was his view that you are a 33‑year‑old man with a possible history of bipolar disorder.  I will quote from his opinion:

"The diagnosis of bipolar disorder appears to have been made in 2002 by Dr William Orchard.  The basis of this diagnosis appears to be a little unclear, but is possibly accurate.  I should note that Dr William Orchard recently had his psychiatry registration withdrawn because he inaccurately diagnosed bipolar disorder in most of his patients.  Mr Sarikaya provided a history which was rather scant in detail, but possibly consistent with a history of bipolar disorder.  He appears to have experienced a pattern of altered mood states and dissociated symptoms of hypomania and depression.  Mr Sarikaya has mostly had his medication prescribed by local GPs in the community.  He appears to have not had any psychiatric review for approximately a decade on longer."

16It was the author's view, and again, I quote:

"It is quite clear therefore that his mental illness assuming it to be a genuine mental condition, has not been managed appropriately in consistency."

17Further, it is possible that you were experiencing a period of depression at the time in 2011, but it seems unrelated of the actual offence itself.  Further, that your management in the Metropolitan Remand Centre has proved problematic.  You have taken umbrage at the Doctor's decision to withdraw or reduce your prescribed opioid analgesia, which has resulted in you becoming frustrated and disgruntled. 

18It was the author's view, and again I quote:

"It is clear from the medical notes provided that Mr Sarikaya has a long history of taking prescribed opioid analgesia with the development of an opioid dependency."

19I further note his conclusion that you should be considered a more vulnerable prisoner than a prisoner without a complex array of mental and medical problems and you should be referred for ongoing psychiatric review when you are in prison and thereafter, when you return to the community. 

20You are currently 33 years of age and you were 31 years of age at the time of the offences.  You have admitted to a number of prior convictions, notwithstanding what you have told the author of the Forensicare report and I have a list of those extensive prior convictions, both the criminal and of course, your driving record. 

21I think it probably sufficient to observe that your criminal record is one of 12 pages and your driving runs for four pages.  Clearly some of those convictions, involving some 14 court appearances between 1996 and 2008, are particularly relevant to my task of sentencing you today.  For example, there is the offence on 14 March 2006 of careless driving.  Your driving record reveals that you were before the courts on nine occasions between 2011 and 2001 for various breaches of the road laws. 

22Your other criminal record, of course, reveals a range of other offences which duplicate, to some extent, your driving offences, but also there are offences of dishonesty and violence and the like. 

23Reports have been tendered by consent which I have read and I take their contents very much into account in addition to the Forensicare report from which I have quoted extensively.  In addition to that, there is Exhibit 1, the report from Mr Tim Watson-Munroe; a document which was recently tendered and which seems to me to generally support the Forensicare report. There is also the earlier Forensicare report of 27 December 2002, Exhibit E and also Exhibit G, which is a letter from your doctor regarding pain management.

24Since this offence in 2011, of course, you have been in no further trouble, save for a matter that occurred during the trial, which had the effect of causing your bail to be withdrawn and you have been in custody since.  Although, I note that with respect to that matter on 7 December 2014, no charges have been laid as far as the prosecution is informed. 

25Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest that there is any great likelihood of that.  Indeed, I think until your psychiatric and psychological state is subject to proper and appropriate examination by relevant experts, one cannot be sure of any diagnosis; and certainly, in addition to your psychiatric and psychological problems, you clearly have a range of physical problems, which have resulted in your opioid dependency. 

26Ultimately, these things all need to be understood in order for some clear picture to emerge of how best to treat you whilst in gaol and when you are released from gaol.  Of course, in fixing an appropriate sentence, I must seek to maximise such chances of your rehabilitation as there may be and I accept the submission of Mr Kantor that a slightly longer than normal parole period is appropriate in your case, to allow the authorities to give to you some assistance in dealing with the problems as they have been described in the various reports. 

27As I say, it is conceded that Propositions 5 and 6 of the principles set out in the case of Verdins apply to you and I accept these submissions to that effect made by Mr Kantor in Exhibit 2 and para.19. 

28Of course, as well as those matters personal to you to which I have referred including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence, which I believe to be of considerable importance in a case such as this.  Specific deterrence is also of importance given your driving record and your long list of criminal convictions over many years.  I have sought to moderate sensibly the applicability of those principles given what appears to be, the possibility that you were and are suffering from the illness described by the Forensicare author. 

29I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending which I find to be unhappily, a distinct possibility.  Notwithstanding you have not been before the courts as much recently as you were in the earlier part of your life. 

30Since you have committed these offences there has been delay in the matter coming before me; two and a‑half years have passed and that matter was raised in submissions.  There will be a sentencing concession in your favour given the inevitable anxiety of knowing that if found guilty in these matters, you would be imprisoned.  However, it does not appear to me that you have utilised the passing of that time to effect your rehabilitation and that is a matter that was discussed with counsel.  The explanation for that may not be your fault in the sense that you suffer from a range of debilitating physical and psychiatric problems that have not been appropriately addressed by your medical practitioners for a very long time.  Hopefully whilst in gaol you can get some appropriate treatment for all your problems and a diagnosis on which one can depend. 

31Submissions made as to the nature and the seriousness of your offending were made, with respect to Charge 1, and I accept that your driving was towards the lower end of the dangerous driving in that you were reversing your car without taking proper care and attention. 

32With regard to Charge 3, I accept that you failure to render assistance is in the circumstances of the case not of great significance given what happened. Fortuitously care was available almost instantaneously.  I will make full orders for concurrency with respect to that charge. 

33With respect to Charge 2 as I have already stated and as is apparent in discussion with counsel, I take the view that this is a significant and bad example of an offence of this kind.  I have no doubt you knew you had collided with an elderly lady and you would have seen and/or heard the walking frame hit your car.  You chose to drive off knowing of these matters and then sought to disguise your car and your movements in order to maintain the lie that you had not driven the car at that time, notwithstanding you subsequently of course agreed that you had at trial. 

34Yes, if you would stand please, Mr Sarikaya.  These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences.  You are convicted and sentenced as follows:  on Count 1, two years' imprisonment; on Count 2, four years' imprisonment; on Count 3, nine months' imprisonment.  I direct that Count 2 be the head sentence and I direct that 12 months of Count 1 be served cumulatively on Count 2.  That results in a total effective sentence of five years' imprisonment and I direct that you serve a minimum term of three and a‑half years before becoming eligible for parole. 

35As prescribed by the Sentencing Act I declare that the period of time you have already spent in custody is, how long is that gentlemen?

36MR COOTE:  From 7 December 2013.  Let me work it out. 

37HIS HONOUR:  Perhaps you can work that out, whilst I continue.  Just be seated for the time, Mr Sarikaya, thank you.  Perhaps I should also acknowledge the presence of the family members here.  It has been a long and difficult journey for you all, I understand that.  I hope this brings some completion for you and your statements are appropriately before me and I have given them full weight. 

38MR COOTE:  I had since 7 February, was that the date that he was remanded in custody, sir?

39HIS HONOUR:  I believe it was.

40MR COOTE:  I have 91 days until today's date.

41MR MOORE:  I agree with that, Your Honour, 91 days including today. 

42HIS HONOUR:  Thank you.  Well if that proves to be incorrect, of course, the matter can be brought back before me, but it will need to be done fairly quickly.  As prescribed, the Sentencing Act I declare the period of time already spent in custody is 91 days and I direct that such be noted in the records of the court.  I think that completes the matter, Mr Moore, from your point of view. 

43MR MOORE:  I think Your Honour is required to make an order against his driver's licence. 

44HIS HONOUR:  Thank you.  Is there a minimum term?

45MR MOORE:  I don’t believe so, Your Honour. 

46HIS HONOUR:  The licence is cancelled.  If there be a licence and that will be for a period of three years. 

47MR MOORE:  So cancelled and disqualified for three years?

48HIS HONOUR:  Yes.  So any licences cancelled and you are disqualified from obtaining one for a period of three years.

49MR MOORE:  As Your Honour pleases. 

50HIS HONOUR:  Does that complete the matter, Mr Moore, from your point of view?

51MR MOORE:  Yes, it does, Your Honour.

52HIS HONOUR:  Mr Coote?

53MR COOTE:  Yes, Your Honour. 

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