Director of Public Prosecutions v Simseker

[2020] VCC 1902

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01155

DIRECTOR OF PUBLIC PROSECUTIONS

v

BIROL SIMSEKER

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JUDGE:	HIS HONOUR JUDGE C. RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	DPP v Simseker
MEDIUM NEUTRAL CITATION:	[2020] VCC 1902

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             damaging property - threats to destroy property – early guilty plea 
Sentence:                 convicted and fined you $1000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr J. Mitchell	Michael Gleeson & Associates

HIS HONOUR:

1Birol Simseker, on 27 November 2020 you pleaded guilty to an indictment containing two charges, being damaging property, Charge 1, and threats to destroy property, Charge 2.  The maximum penalty for Charge 1 is 10 years' imprisonment, whilst the maximum penalty for Charge 2 is five years' imprisonment.

2You admitted your prior criminal record, which is substantial and reveals offending from the age of approximately 18, reasonably consistently until you were 23 years of age or thereabouts when there was a four year break, and then you offended when you were aged between about 27 and 29.  There was a nine year break until you reoffended.  You have prior convictions in respect of drugs, driving offences, arson, going equipped to steal and violence.  However, they do not inform the offending to which you have pleaded guilty here today.

3Tendered as Exhibit A and read aloud in court was the summary of prosecution opening upon plea.  In summary form your father attended at 26 Girgarre Street, Broadmeadows, which had been your family home from as early as 1978.  He attended your home on 12 December 2018 and you invited him into the home and once he and his now wife were in the home that you occupied you apologised to your father, saying that the house was not in good condition.  You were referring to a series of holes in the walls of a room in the house caused by the discharge of a shotgun.  It is the discharging of that shotgun and the consequent damage that is the subject of Charge 1, criminal damage.

4In respect to Charge 2 there is some relevant family background in that on the evidence before me there was an expectation in you that you would eventually become the owner of what was the original family home and your sister, who gave evidence on the plea, indicated or swore that there was an expectation in her that she would receive a second house that was bought by your father.

5After the death of your mother your father returned to his homeland in Turkey and very shortly thereafter married a woman approximately half his age and shortly thereafter returned to Australia.  He occupied the second premises and was advised by the appropriate government instrumentality that being the owner of two residences may put his pension at risk.  It would appear that he sold the premises he occupied and then on the day of the commission of the second offence, being 12 December 2018, during the course of conversing with your father he stated his intention to live in the property that you had an expectation of eventually owning.  You responded to your father by yelling at him and saying, 'This is my house.  This is my children's house.  If you go to the police I'll burn it down'.  It is that threat which is the subject of Charge 2 on the indictment.

6Your father attended the Broadmeadows police station the following day and ultimately you were interviewed under caution on 13 December 2018 and made no comment answers to questions asked of you.

7Tendered as Exhibit 2 on the plea is a character reference from, your former partner, Ms Brown, who is the mother of your two sons, Aiden and Dylan, who are presently aged 15 and nine years respectively.  This is your second relationship. You have two older children, Joseph, aged 25, and Kaitlyn, aged 22, from a previous relationship.  I am told that you have an excellent relationship with each of your children and that Ms Brown in her reference wrote that it is in contemplation between the two of you that you will reconcile and eventually live together.  You are presently living in Craigieburn and are unemployed and in receipt of benefits.

8As part of Exhibit 2 there is the reference of Ersan Tekin, a man who operates a bricklaying business, for whom you worked for 15 years until the outbreak of the COVID-19 pandemic, when he was forced to lay you off.  He wrote in his reference that once these proceedings are over that you have a job waiting for you.

9As to your personal background, you were born in Melbourne in December 1971 and completed high school to Year 11 and after leaving school you worked on the assembly line at the Ford Motor Company for a period of three to four years. Thereafter you worked as a panel beater on and off, but as I have referred to already, for the past 15 years you have worked as a bricklayer and you intend to return to that work as soon as these proceedings are over.

10The circumstances surrounding Charge 1 are somewhat Delphic in nature, save to say that you have discharged a shotgun in the home that you occupied and damaged it, an act of stupidity.  In respect to Count 2 I regard that offence as at the bottom of the range in that after having a conversation with your father that became increasingly heated, you made what I am of the view was an idle threat.  The fact that it was an idle threat is proved by the fact that the house was not burnt down nor damaged by you thereafter.

11As a result of your father's attitude you had to vacate the premises in Broadmeadows and ultimately came to live in Craigieburn.  It seems to me that in all the circumstances that it is unlikely that you will commit crimes of a similar nature into the future.  However, in terms of your prospects for rehabilitation, that is not committing any crime in the future, your criminal history record militates against me having any great confidence in that respect.  I would say that your prospects for rehabilitation in that you will not reoffend in the future is guarded.

12You entered your plea at an early stage in these proceedings and you are entitled to the benefit of that plea, being that it is some evidence of remorse and that it has utilitarian benefit.

13Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, would you please stand?

14You will be sentenced to an aggregate sentence. I convict and fine you $1000.

15Mr Albert, is there any requirement for a declaration under 6AAA in light of the fine?

16MR ALBERT:  It's not mandatory, Your Honour.

17HIS HONOUR:  No.

18MR ALBERT:  Mandatory kicks in for an aggregate fine of 20 penalty units but it is a matter for Your Honour if you wish to do so or not.  It is a matter of discretion.

19HIS HONOUR:  I do not think it is necessary in the circumstances.  You can step out of the dock and sit behind your counsel.  I would like to thank you,
Mr Albert, for your assistance as always, and you also, Mr Mitchell.

20MR MITCHELL:  As Your Honour pleases.

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