Director of Public Prosecutions v Sariucak

[2019] VCC 1281

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02343

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURAT SARIUCAK

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 August 2019
CASE MAY BE CITED AS:	DPP v Sariucak
MEDIUM NEUTRAL CITATION:	[2019] VCC 1281

REASONS FOR SENTENCE
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Subject:Aggravated burglary, intentionally cause Injury, commit indictable offence whilst on bail

Catchwords:  Paranoid psychosis, recent diagnosis, causal link to offending, reduced moral culpability

Legislation Cited:  Sentencing Act 1991

Cases Cited:DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302, DPP v Meyers [2014] 44 VR at 486, R v Verdins and others [2007] 16 VR 269

Sentence:14 months imprisonment followed by a 20 month community corrections with community work and therapeutic conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. Pickering	Office of Public Prosecutions
For the Accused	Ms. D. Lamovie	Victoria Legal Aid

HER HONOUR:

1Murat Sariucak, you have pleaded guilty on indictment to charges of aggravated burglary and intentionally causing injury.  In addition you have pleaded guilty to a summary charge of committing an indictable offence whilst on bail. 

2The charge of aggravated burglary carries a maximum penalty of 25 years imprisonment, the charge of intentionally causing injury carries a maximum penalty of 10 years imprisonment. 

3The charge of committing an indictable offence whilst on bail carries a maximum penalty of three months imprisonment. 

4These maximum penalties reflect the seriousness with which Parliament regards these offences. 

5The details of your offending were set out in a document entitled, 'Summary of Facts for Sentence Indication Hearing of Murat Sariucak' dated 29 May 2019.  It is an agreed document.  The matter proceeded by way of a plea hearing rather than as a sentence indication. 

6In short compass, as of 25 June 2018, you were residing in a rooming house in Hoppers Crossing.  The victim, Robert Pirrone, was residing at the same address, as were two other males.  Each of you had your own lockable room. 

7In the lead-up to that date, there had been some tension between you and the victim, largely due to you being unhappy about Mr Pirrone making noise late at night.  Mr Pirrone had one prosthetic eye, a fact which was known to you. 

8At about 12.30 am on 25 June 2018, Mr Pirrone was in his bedroom with the door locked.  You knocked on the door saying, 'Don't think I won't hit you' and, 'You're upsetting me.'  Mr Pirrone told you that he was not going to open the door.

9Fearful that he may be assaulted, he then went out to a local hotel where he stayed until closing time at 4 am.  Once home in his bedroom he phoned his girlfriend and talked before falling asleep.  He had shut and locked the door to his bedroom.

10Sometime later he awoke to you outside his door yelling, 'Open up.'  You kept banging on the locked door and trying to force the door open.  Mr Pirrone stood behind the door trying to hold it shut, but you were able to force the door open and enter the room.  These facts form Charge 1, aggravated burglary, particularised as entry with an intention to assault, being reckless or knowing a person was present. 

11Mr Pirrone started walking backwards as he did not believe he could defend himself from you and was in fear of losing his other eye, so he lay on the bed.  You were saying, 'Fight me, fight me, don't be a weak dog' and jumped on top of the victim, placing your knee on his chest.  You then started punching him and did so four or five times to both his head and face.

12Mr Pirrone tried to protect his left eye by holding his hands around his eyes.  You then hit him three times to his left eye and then about twice more to the upper part of his head.

13Whilst punching the victim, you were saying, 'Fight back' and, 'Come on, come on, fight back.'  You stopped punching Mr Pirrone and said that he did not let you sleep and that he had kept you awake. You then left his room. 

14Mr Pirrone then left the house and called ‘000’ before walking to a nearby railway station where police and an ambulance attended at about 7.30 am.  He was conveyed to the Werribee Mercy Hospital.

15Mr Pirrone received a one centimetre open wound above his left eye which was approximately three millimetres deep, a sore head, and a sore thumb as a result of your attack.  These injuries form the basis for Charge 2 on the indictment, intentionally cause injury. 

16The wound above his eye was cleaned and closed with steri-strips.  No other medical intervention was required.  Your punching to the head area, knowing of his prosthetic eye, elevates the seriousness of this offence.

17At the time of this incident, you were on bail forming the basis for summary charge 3, commit indictable offence whilst on bail.  You were also subject to a community correction order.

18Your offending, while subject to court orders is an aggravating feature which in the case of the bail order is the subject of a separate charge and will be dealt with accordingly.  Your inability to abide by court orders indicates a lack of respect for them and raises concerns in terms of your future prospects. 

19At approximately 9.45 am on 25 June 2018 police attended your address and you were arrested.  On interview by police you made substantial admissions to the offending with your primary source of grievance in relation to Mr Pirrone being his constant making of noise. 

20This is serious offending.  Mr Pirrone was effectively a house-mate and you entered his private domain within that house, an environment in which he was entitled to feel safe.  At the time of your assault upon him you were aware that he only had one working eye and would have been able to identify his level of fear of you in those circumstances.  It is more by good fortune than good management the injury you caused was relatively minor. 

21I have received a victim impact statement from Mr Pirrone.  The purpose of a victim impact statement is to give him, who has been affected by your crime, the opportunity to participate in the criminal justice process by informing the court about the effects of your crime. 

22You have also had access to that document and would be now be well aware of those effects.  In that document, he speaks of the ongoing impact on him from your offending and I have taken the contents of that document into account. 

23In terms of the charge of aggravated burglary, I reflect on the recent decisions of the Court of Appeal which include the DPP v Bowden [2016] VSCA 283, the DPP v Hogarth [2012] VSCA 302 and the DPP v Meyers [2014] 44 VR at 486.

24I have had recourse to each of those decisions.  In Meyers, the court referred to Hogarth and said that,

'Hogarth established that current sentencing practices for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence or threats of violence should be viewed very seriously whether the target of the attack is a former domestic partner or a person against whom such other grievance is held.'

25Further, the decision of Meyers referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of
non-exhaustive considerations as being relevant to such an assessment. 

26In terms of this aggravated burglary, you forced entry to the victim's room under some resistance in circumstances that could accurately be described as both violent and confrontational.  You entered with an intention to assault in the early hours of the morning.  You were on your own and without a weapon. 

27I accept that your offending was relatively spontaneous in the context of ongoing tension, your conversation with Mr Pirrone earlier in the evening and his return to the premises in the early hours of the morning when he again made noise, angering you. 

28Rooming houses such as this, are often a very challenging environment in which to reside.  None of these factors in any way excuses your behaviour. 

29Your intent on entry is a significant feature going to the gravity of your offending and is informed by the actions that took place once inside the premises.  I bear in mind that the offence of aggravated burglary is complete upon entry and that any sentence on that particular charge cannot involve punishment for what happened post-entry.

30Whilst a serious offence, I do not find this example of aggravated burglary to be at the higher end for an offence of its type.  I place your offending such as any description assists, to be at the mid-to-lower end for an offence of its type.

31You do have a criminal history spanning the years from 2004 and to 2018 and your remand on these matters.  There are approximately 19 court appearances over that period which include offences of dishonesty, driving offences, criminal damage, drug possession, violence and, relevantly, an aggravated burglary dealt with at the Melbourne County Court on 18 October 2007 at which time you received a sentence of 14 months imprisonment wholly suspended for a period of two years and six months.

32I have now had access to the reasons for sentence.  It represents another concerning circumstances where you chose to solve your problems through aggression. 

33Your criminal history would also indicate that you have difficulty complying with court orders including intervention orders, corrections orders, a suspended sentence and bail orders.

34You are not to be punished for this criminal history again, but it is relevant to assessing the weight to be given to specific deterrence, that is putting you off further offending, denunciation, your prospects of rehabilitation and the need to protect the community from you.  Most of this offending has been in the context of a long-standing drug addiction. 

35In terms of your personal history, I am told you are now aged 44 years, and were born in Melbourne to Turkish parents.  You have one younger sibling, a sister.  You grew up in the Housing Commission flats at Collingwood but returned to Turkey when aged 15 years to complete your secondary school education.  You in fact passed entrance exams to be accepted into Ankara University where you commenced a Bachelor of Asian Studies.  You missed Australia and returned at 20 years of age without completing your degree. 

36When you did return to Australia, you married a Turkish girlfriend shortly thereafter and then worked for two years as a quality control inspector for a whitegoods company.  It was during this time that you commenced smoking cannabis and drinking alcohol. 

37Your parents intervened and brought you back to Turkey.  Shortly after this point, you were conscripted into the Turkish Army and spent some 18 months in Bosnia where you had the misfortune to witness many atrocities.  Your father died whilst you were away in Bosnia. 

38You returned to Australia in the early to mid-2000s and married for a second time.  Your first child, a daughter, was born in 2005.  During these years, you managed to complete a Diploma in Polymer Technology at TAFE and then a Diploma in Mechanical Engineering at the NMIT. 

39In 2006 your marriage ended and you commenced a relationship with another woman who introduced you to heroin.  A second daughter was born around this time.  Your relationship with that woman lasted for approximately seven years but was coloured by both drug use and abuse. 

40Since the breakdown of that relationship, you have struggled to maintain employment, relationships, accommodation and abstinence from drug use.  It has been a time of great uncertainty which coincides with your intersection with the criminal justice system and continued use of drugs.  I am told that you do not have contact with your children.

41Very relevantly, and tendered on your behalf, were two reports authored by Dr Nina Zimmerman, consultant forensic psychiatrist.  The first of those reports is dated 12 May of 2019. 

42Having reviewed relevant information Dr Zimmerman opined that a diagnosis of paranoid psychosis cannot be excluded.  She was also of the opinion that you clearly met criteria for chronic poly drug abuse and dependence.

43She was of the view that at the time of your offending in June of 2018 you were paranoid, and that is was possible this was due to a psychotic state.  She found it was likely that your paranoia would have affected your ability to make sound judgments and to control impulses to act on your beliefs that you were being set up at that time.

44You had professed to Dr Zimmerman a belief that the police had set you up and the victim was working with them in order to get you arrested.  The contents of her report were not under challenge. 

45Furthermore, she noted that you may be at risk of heightened paranoia in the prison setting, given the possibility of an underlying psychotic process.  This was evidenced by your presentation to her in the custodial setting and your belief that people were listening to your conference with her, and that you were being zapped by guards each evening.

46Dr Zimmerman provided an addendum report, dated 24 May 2019, by which time she had had access to your record of interview with police relating to your offending of 25 June 2018. 

47She was of the view that your responses to questions by police suggested a strongly paranoid flavour at the time of, and proceeding the offending, with probable auditory hallucinations and/or misinterpretation of sounds.

48Dr Zimmerman was of the opinion that your responses in the record of interview strongly supported the view that you were suffering a paranoid psychosis at the time of the offending which would have affected your ability to make sound judgments about your behaviour and to control your impulses.

49The facts that psychotic symptoms had re-emerged whilst in the prison setting, coupled with the need for you to be prescribed anti-psychotic medication suggested to her that your mental state had relapsed, given you were not using drugs whilst in prison. 

50It appeared to Dr Zimmerman that you in fact have an enduring psychotic illness and that she believed the most likely diagnosis was one of schizophreniform psychosis.  This report was also not the subject of challenge and I accept both of her reports without question. 

51The final document in time relating to this issue is a letter authored by Dr Angelo De Alwis, consultant psychologist, from Ravenhall Correctional Centre, dated 29 July of 2019. 

52Dr De Alwis confirmed that you are currently recovering from an episode of psychosis.  At present your psychotic symptoms have resolved to some extent and you have indicated a willingness to continue with your medication voluntarily.  He notes that your symptoms have persisted in a relatively drug-free environment and that he is of the opinion that this episode of psychosis may have been your first episode of a long-term illness such as schizophrenia.  The material in this regard appears to be consistent.

53In considering all of this material, I am satisfied that you were suffering paranoid psychosis as of 25 June 2018, an emerging illness which is independent of your drug use. 

54In my view, this provides a causal link between your offending and your now-diagnosed mental illness.  This reduces your moral culpability for the offending.  Both general and specific deterrents should also be somewhat moderated in the circumstances.  Furthermore, I am satisfied that both limbs 5 and 6 of the decision of Verdins are also enlivened. 

55Upon your release from custody, Dr De Alwis has advised that you should seek an Area Mental Health Service and that you require investigation, including head scans, to rule out reversible organic causes for your psychotic episode. 

56He also notes your need to have a current medication prescribed by a psychiatrist for at least another six months and that you need to have psychiatric follow up.  You are apparently willing to do all of these things, and your lawyer has made inquiries on your behalf and provided you with relevant information so that you can follow up as needed upon your release.  I certainly encourage you to do so. 

57You are currently medicated and have written a letter to the court demonstrating some insight into the need to maintain mental health treatment now that this problem has been properly identified.

58It is a significant factor overall that a serious mental illness has now been identified.  It guides your management into the future.  It is extremely important that upon your release from the custodial environment that you follow through on the advice that has been given to you and connect in with an Area Mental Health Service and follow all the recommendations as to treatment and required medication.  This is in yours and ultimately, the community's interest, and will reduce the risk of reoffending.  Obviously, you also need to maintain abstinence from drugs. 

59Fortunately, you have the continuing support of your cousin, Alper Kasapoglu, who can assist you with this transition.  I am told you can reside with him upon your release which is a far more stable setting than the one you were in prior to your remand. 

60You have pleaded guilty.  I accept that your plea of guilty has utilitarian value.  It has saved the need for witnesses to give to give evidence and relive the events, and it has saved the court time and expense of contested proceedings.  You have clearly taken responsibility for your offending. 

61The Crown position is that taking into account all relevant sentencing considerations that you should serve a term of imprisonment with both a head sentence and a non-parole period.  Submissions made on your behalf are that all relevant sentencing considerations can be adequately accommodated by what is known as a combination sentence, that is, a term of imprisonment in combination with supervision through a community corrections order.

62Because of this submission, in order to properly consider all matters, I have had you assessed as to your suitability for a community corrections order.  You have been assessed as suitable for such an order with certain recommended conditions.

63In this context, I have also had the benefit of the ‘Contravention of Community Corrections Order by Conditions and Further Offences Report’ dated 6 September 2018 which was tendered on your behalf. 

64This relates to a 12 month order imposed on you by the Melbourne Magistrates' Court on 11 September 2017 in relation to driving offences, failing to answer bail, shop thefts, criminal damage and breach of bail offences.

65Despite being in breach of that order, the report before me detailed that you had engaged well with appointments, completed two episodes of complex substance abuse counselling, appeared to be honest regarding your substance misuse and that you had made efforts towards treatment.

66Coinciding with the same period of time is a letter from ReGen dated 6 March 2018 which confirms that you had been attending on South West Catchment Alcohol and Other Drugs Services since October of 2017. 

67This letter reports that at that time you had a strong motive for change and you were engaged in counselling to support you with this in the context of a long history of substance misuse.  I do accept that a decision to change this kind of history can take time and considerable effort. You had been engaging in ongoing care and recovery sessions since December of 2017 and counselling since January of 2018.  You are described as presenting to your appointments in a timely manner, engaging willingly and that you were keen to continue persisting in treatment to support your recovery.

68A letter from Stepping Up, dated 12 February 2018, confirms that you were accessing their services in the early part of that year, and were showing determination to manage your substance use.  You had completed a nine-night withdrawal at the Geelong Withdrawal Unit in late 2017.  You also enrolled in and participated in courses with RMIT in a lead-up to your offending in June of 2018.

69It seems that many factors were on track in a positive way until your resort to this offending.  Combined with the recent identification of a significant and existing mental health issue this would indicate that you can be assisted through supervision and treatment. 

70Notably, this is the first time a mental health condition has been identified. Any order can now be better targeted to assist you than it has been able to do in the past.  Through such, greater protection to the community is offered. 

71I do make the ancillary orders as sought for compensation for damage to the door. 

72The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 

73In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

74This also requires balance with the interests the community clearly has in denouncing criminal conduct with the same interest in seeking to ensure as far as possible, that offenders are rehabilitated and reintegrated into society.

75I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I have also taken into account current sentencing practices for the offences to which you have pleaded guilty. 

76I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or a part of a series of offences of the same or similar character, which includes the bail offence which was clearly directly related to this matters.  In so doing, I also bear in mind the principles of totality and proportionality. 

77In terms of that actual sentence, you are convicted and sentenced to 14 months imprisonment.  I reckon 415 days as time already served pursuant to this sentence.

78In addition, you are convicted and placed on a community corrections order for a period of 20 months.  This order is to commence upon your release from the period of imprisonment. 

79The conditions of this order include the following: You need to attend on the Office of Corrections within two days of your release; you are to complete 125 hours of community work.  I have kept this component to a minimum so that the focus can be on your treatment and rehabilitation post your gaol sentence. 

80I note the imposition of community work together with the duration of this order is capable, in my view, of reflecting punishment, denunciation and deterrence, especially on top of the lengthy gaol sentence.

81Fifty hours of the community work will be offset against treatment, so the more treatment, the less community work. 

82You are to submit for treatment for drug use and abuse as well as a mental health component.  You are to be assessed for offence-specific programs.  In that context anger management will not go astray. 

83You are to be supervised by the Office of Corrections.  I am going to start off this order by having you judicially monitored by me so that I can ensure your compliance together with supervising the implementation of appropriate treatment conditions in a timely manner.  In that sense, I will be keeping an eye on you and to make sure the Office of Corrections is doing what I am asking them to do. 

84The first judicial monitoring will be before me at 10 am on 15 November of this year, so that I will give you three months to see how you are going. 

85In addition to the conditions I have imposed, there are standard conditions.  They are probably not lost on you. 

86The first and foremost of those is that you must not commit any other offences during that 20 month period which could be punished by imprisonment. 

87You are required to advise your supervising Corrections Office of any change of address where you are living or working and you need to do that within two clear working days. 

88It is a condition of all community corrections orders that you submit to visits as directed and you must obey all of the instructions and directions of the community corrections officer.  You are not able to leave the State of Victoria without their prior permission.

89Mr Sariucak, you should be under no illusion that in my view this outcome presents you with an opportunity to further change your life in a positive fashion should you choose to take up the opportunity. 

90Now that your mental health condition has been identified and it can be properly treated, I see you as having greater prospects than you may have had in the past, and that is why I have taken this course.

91This order can be breached if you do not comply with it in terms of the conditions, or if you do reoffend during this operation.  Should you do so you will be required to reappear before me for a breach or contravention hearing. 

92That may require me to resentence you for the charges as well as considering a charge of contravening the community corrections order.  I can only place you on such an order if you are prepared to sign documents to that effect.  Are you prepared to do so?

93ACCUSED:  Yes, Your Honour.

94HER HONOUR:  Thanks.  I will have Ms Lamovie assist you with that in a moment. 

95Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. 

96Whilst somewhat difficult in this context because of the weight that I have given to the identification of your mental illness, if not for your plea of guilty, I would have sentenced you to a total effective sentence of 28 months, with a minimum of 20 months before being eligible for parole. 

97If my maths serves me correctly, you are in a position to be released in about ten days, which might assist in sorting out the Magistrates' Court, it may not, not that I have taken that into account.  All right, you can have that handed down Ms Lamovie, if you are happy to assist Mr Sariucak with that.  Is there anything I have missed?

98MR PICKERING:  Not Your Honour but I think I have.  Your Honour was - I didn't quite get the amount of hours for the order.

99HER HONOUR:  125.

100MR PICKERING:  125, Your Honour, yes.

101HER HONOUR:  Fifty offset.

102MR PICKERING:  If Your Honour pleases, and the second thing is is Your Honour's practice to require counsel to appear for the judicial monitoring?

103HER HONOUR:  No.

104MR PICKERING:  Some judges do, some judges don't. 

105HER HONOUR:  That's interesting.  I don't.

106MR PICKERING:  No, Your Honour, just checking.

107HER HONOUR:  If anyone wants to attend that is relevant, they are welcome but it is not a requirement. 

108MR PICKERING:  If Your Honour pleases. 

109MS LAMOVIE:  Thank you Your Honour.  The accused has signed the order.

110HER HONOUR:  Thank you very much.  All right well thank you each of you for your assistance.  See you for your judicial monitoring Mr Sariucak, not before with any luck.  All right?

111ACCUSED:  Okay, Your Honour.  Thank you, Your Honour.

112HER HONOUR:  There's on way to do that, comply with the order.  All right, thank you and counsel are excused thank you, except for you Mr Pickering. 

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