Director of Public Prosecutions v Sumbul
[2017] VCC 1974
•19 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00641
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TURHAN SUMBUL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 December 2017 | |
DATE OF SENTENCE: | 19 December 2017 | |
CASE MAY BE CITED AS: | DPP v Sumbul | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1974 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – False Imprisonment – Causing Injury Recklessly – Damaging Property – Persistent Contravention of a Family Violence Intervention Order – Contravention of a Family Violence Intervention Order – Plea of Guilty
Legislation Cited: Sentencing Act 1991
Sentence: 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months imprisonment; 402 days pre-sentence detention; Section 6AAA declaration: 6 years and 6 months imprisonment with a non-parole period of four years imprisonment; Disposal order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Bate | Vanessa Mellios Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms O Trumble | Jacob Slucki Grigor Lawyers |
HIS HONOUR:
1 Turhan Sumbul, eventually on 11 December 2017, your plea in mitigation in respect to Indictment G12830978 together with a related summary offence took place.
2 You pleaded guilty to false imprisonment (Charge 1), causing injury recklessly (Charge 2), damaging property (Charge 3), and persistent contravention of a Family Violence Intervention Order (Charge 4). In addition, you pleaded guilty to the related summary offence of contravention of a Family Violence Intervention Order.
3 The maximum penalty for Charges 1 and 3 on the indictment is ten years’ imprisonment, whilst the maximum penalty for Charges 2 and 4 on the indictment is five years’ imprisonment. The maximum penalty for the related summary offence is two years’ imprisonment.
4 You admitted your criminal record.
5 Your criminal record deserves some attention in that you have 16 prior convictions for contravening Family Violence Intervention Orders in respect of the complainant, the subject of the indictment and the related summary offence before me. In respect of these prior convictions you have received a Community Correction Order combined with a suspended sentence as well as sentences of imprisonment, both suspended and to be immediately served. Your prior convictions in respect of contravention of a Family Violence Intervention Order date from 18 June 2012 until 29 August 2013, although many of those convictions and sentences were subject in the main to unsuccessful appeals.
6 Tendered as Exhibit A and read aloud in Court was the further amended summary of prosecution opening upon plea. In summary, on 2 August 2016, an Interim Family Violence Intervention Order was granted to the victim. You were served with a copy of this order on 18 August 2016. At approximately 1.45 am on 4 September 2016 the victim was at a friend’s house in Glenroy when a knock was heard at the front door. When the friend went to answer the door there was no response to her enquiry as to who was there. A few minutes later the victim and her friend heard a noise in the backyard and they saw you jump into the backyard of the house. The victim immediately called 000. You were subsequently interviewed under caution and admitted attending at this address. (Related summary offence, contravene Family Violence Intervention Order.)
7
On 5 September 2016 a final Family Violence Intervention Order was granted to the victim and was valid for two years. The order was served on you on 6 September 2016. On 9 October 2016 the victim received a text message from a friend saying “… your life is ruined call me urgently. Something real bad of you on the internet.” The victim responded to this communication and was informed that there was a pornographic video on the internet which you,
Mr Sumbul, believed depicted the victim with another man. At about 2 pm that day you jumped into the backyard of the victim’s home and ran across the backyard and towards the back door. The victim was in her living room and heard a bang at the back door and then saw you running towards her within her home. In gaining entry to your victim’s home you broke the back door jamb and damaged the security door, dislodging it, consistent with forced entry into your victim’s home. (Charge 3, criminal damage.)
8 In your victim’s home you confronted her about the video. You held your phone and displayed the video to your victim and demanded that she admit that it was her in the video. The victim attempted to escape from you and ran outside. You followed her, you caught hold of her and grabbed her around the head and cupped her mouth to prevent her from screaming. You dragged her inside the house by holding onto her head and neck. You threw the victim onto a couch in the lounge room and demanded that she give you her phone. She refused. You again demanded her phone as you wanted to go through it to see if she had been in contact with any other men. You wrestled the victim over the phone. At one point in time you grabbed her by the mouth and hurled her down on the couch. You managed to grab the victim’s phone from her but she refused to unlock it for you. You insisted it was the victim in the pornographic video by saying, “This is you! Just admit it!”
9 In order to quieten you down the victim insisted that you call two mutual friends to attend the home, which they did. The four of you sat in the kitchen and had coffee. However, you insisted on going through the victim’s clothing to find a top worn by the woman in the video which you believed was owned by your victim. Eventually the victim took hold of the garage remote control and opened the roller door. She ran out of the house through the backyard and garage and to her neighbour’s house across the road, leaving you and your mutual friends in the house. Subsequently you were driven away by your friends.
10
It is plain from the depositions that whilst you were in the victim’s home for a period of approximately two hours and that she felt compelled to remain within the home, there were opportunities for her to have left the home (see
paragraph 20 of the Crown opening) (Charge 1, false imprisonment and Charge 2, recklessly causing injury).
11
The particulars that support Charge 4 on the indictment include the facts that found Charges 1 to 3 on the indictment. This was subject of discussion between myself and counsel and it was agreed that in respect to Particular (d) of Charge 4, that it was your presence at the victim’s address in breach of the intervention order that constituted the conduct relied on in support of Particular (d) and Particulars (e) and (f) relate to you on 9 and 10 October 2016, posting the video on Facebook, claiming the video to contain images of the complainant, and this was in contravention of the Family Violence Intervention Order of
5 September 2016 (Charge 4, persistent contravention of a family violence order).
12 On 14 October 2016 you surrendered yourself to police. The following day you were interviewed under caution and made a no comment record of interview.
13 Tendered as Exhibit 1 on the plea was a chronology and outline of submissions and further submissions. Tendered as Exhibit 2 on the plea was a report from Dr Danny Sullivan, psychiatrist, dated 30 January 2017, and tendered as Exhibit 3 was a bundle of documents containing references and certificates of courses undertaken by you whilst in custody, together with urine analyses conducted on you in January, March and September 2017.
14 You are 29 years of age and are born to parents who migrated from Turkey in the early 1980s. I was told that your family run three butcher shops and are successful in this respect. You have three siblings, being three sisters, two of whom are older than you and one who is younger by a period of ten years or so and to whom you are close.
15
You described your father to Dr Sullivan as a strict disciplinarian and that you were subject to corporal punishment at his hands. From Grade 5 until you were expelled in Year 9, you attended Isik College, which was described as a Turkish school. The balance of Year 9 to and including Year 11 was spent at Ilim College, another Turkish school. You returned to Isik College and while in
Year 12 you were expelled again. You attempted the Victorian Certificate of Education at Victoria University TAFE but failed to complete this course due to poor attendance.
16 You told Dr Sullivan that after finishing school in 2006 you initially sold vacuum cleaners door-to-door and did some bricklaying and tiling work before moving into laying floorboards. (See reference of Adem Dayaki.)
17
Ms Trumble of Counsel, who appeared on your behalf and presented a most comprehensive plea, informed me that you successfully completed a preliminary year of study in order to commence a Bachelor of Banking and Finance at the RMIT University. However, you did not complete the Bachelor of Banking and Finance degree and left that course after a period of only
18 months.
18 During and after your studies at the RMIT University, from 2008 to 2010, you worked for ATF Master Timber Floors. Thereafter you worked for Charmers Transport as an administrative officer and for LaTrobe Financial as a customer liaison officer. In 2012 you commenced your own flooring business, TTS Timber Floorboards. You developed this business until you employed up to eight sub-contractors as well as other people from time to time. I was informed that during this time you received a number of short terms of imprisonment and those who you employed maintained your business while you were in custody, and that upon release you returned to your business as a going concern. Since your remand in custody on the instant offences such is no longer the case. However, it was put to me that upon release from prison you will be employed by Mr Ceyran, who operates a flooring business. You would be employed as a floorer, earning $1500 per week.
19 You have a loving and supportive family. You have always resided in your parents’ home. Your family have supported you throughout each of your court appearances and your various terms of custody. Your family is an observant Muslim family. Your referees write of your work ethic, your sporting prowess and, in particular, your involvement with junior soccer players. (See Exhibit 3.)
20
I was informed by Ms Trumble that after the final breakdown of your relationship with the victim you entered into the club scene and commenced to take cocaine and you were adversely affected by cocaine at the time of your offending. It was acknowledged by Ms Trumble on your plea that this could not be a mitigating circumstance of your offending. In respect to your cocaine use you instructed Dr Sullivan that at the time of your offending you were using up to
10 grams of cocaine per week, using it on an almost daily basis. You also used alcohol whilst using cocaine.
21 Because of what was described by you to Dr Sullivan as anger problems, your mother insisted that you see a psychologist in your late teens. Dr Sullivan reported:
“He had been made to take anger management classes in school.”
22 Whilst Dr Sullivan diagnosed you as having poly-substance abuse/dependence involving both cocaine and alcohol abuse, he opined:
“There is no suggestion of past or current psychotic illness or of sustained mood disorder, although in the context of relational problems and substance use, he describes paranoid ideation and increased anxiety and mood disturbance. However, this has not previously resulted in mental health conduct. Mr Sumbul shows no indication of impairment.”
23 Dr Sullivan noted that any paranoid, jealous and depressed ideation that you experienced was caused by your cocaine use and was short lived. Whilst in custody you rapidly stabilised without any treatment by way of psychotic medication.
24 It is troubling that as at 3 December last year, Dr Sullivan noted that you still retained a fascination for your ex-partner.
25 On the basis of Dr Sullivan’s report you are an appropriate vehicle for the application of the principle of general deterrence and your antecedents call out for the application of specific deterrence.
26 Dr Sullivan did opine, however, that you would benefit from offence specific psychological treatment targeted at your understanding of stalking laws and the development of strategies to avoid further offending. Dr Sullivan further indicated that such treatment was not available whilst in custody but was available under the parole system and under the Community Correction Order regime.
27
By reference to the various certificates tendered on your behalf as part of
Exhibit 3, and information provided to me by Ms Trumble, you have undertaken many courses whilst on remand and it can be said that you have made the most of your time custody. You are a unit billet. In addition, over time, you have returned to the practice of your religion, you pray five times daily, and have monthly meetings with an imam. You have found that the practice of your religion has been beneficial for you whilst you have been remanded in custody.
28 Returning to your personal life, I was informed that you have been a talented athlete and have played soccer at local level and at a level that would have allowed you, should you have proved talented enough, to play professional soccer within Australia. Further, you travelled overseas to Turkey in order to pursue a professional soccer career. However, after a period of some months you returned to Australia to your business and to the hope that you might rekindle your relationship with your victim.
29 You had spent some 394 days in custody by way of pre‑sentence detention as at the time of your plea. Ms Trumble’s principal submission was that the time that you have spent in custody is sufficient when combined with a lengthy Community Correction Order that included supervision; attendance in targeted programs like the Problem Behaviour Program, as referred to by Dr Sullivan in his report; a non-association condition in respect of the victim; judicial monitoring; a bond, payable to ensure compliance with the order; as well as the maximum number of hours that a Court can impose, namely 600 hours of unpaid community work. In the alternative, Ms Trumble submitted if there needed to be an additional term of imprisonment over and above that already served, that it should be of short duration and combined with a Community Correction Order.
30 Whilst you are not to be punished for your previous breaches of Family Violence Intervention Orders, they are 16 in number and I regard your prospects of rehabilitation in respect to your offending against the victim, the subject of the counts on the indictment, as well as any other woman with whom you may form a relationship, as bleak. You are not an unintelligent man. You have some level of tertiary education. You were simply fixated with your victim and conducted yourself in a contumacious way in respect to orders of the Court. Crimes of violence by men against women in our community simply cannot and will not be tolerated.
31 Whilst your victim did not suffer any serious injury in the ordinary sense of that phrase, to my mind, that is not to the point. Obsessed with your victim, you entered her home and when she attempted to flee, you assaulted her and falsely imprisoned her, all because you were of the opinion that she had made a pornographic video despite the fact that only the body of the female participant could be seen in the video. The complainant denied that she was the person on the video that you showed her. The couple who were summoned to your victim’s home were of a view that it was not the victim who appeared in the video. Despite that, you searched her home for evidence that she was the person who appeared in the video.
32 It is probably irrelevant whether she was the person in the video. Whether she participated in such a video was a matter entirely for her. However, your obsession with her has continued over a number of years. It has resulted in you being imprisoned on a number of occasions and it is my view that the instant offending is deserving of condign punishment.
33 I hold this opinion taking in to account your early plea of guilty and the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian benefit, that as at the date of the plea you had spent 395 days by way of pre‑sentence detention, and that during that period you had used your time to the full. That this is so is evidenced by the certificates tendered on your behalf as well as the additional courses that Ms Trumble informed me you had completed whilst in custody. You have a loving and supportive family. However, that loving and supportive family have always been there for you throughout each and every one of your instances of offending. Their support for you has not had a beneficial effect on you in respect of your consistent offending against your victim.
34 Upon release from prison you will return to the bosom of your family, you will have work and courses to assist you in the reduction of your risk of re-offending will be available to you should you be granted parole.
35 To my mind, your offending is a serious example of offending of its kind and the only appropriate disposition in all the circumstances is one of an immediate term of imprisonment.
36 Will you please stand.
37 By this sentence I must punish you, publicly denounce your conduct and justly punish you. Further, I must deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences 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 and your offending, I sentence you as follows:
on Charge 1, false imprisonment, two years’ imprisonment;
on Charge 2, causing injury recklessly, six months’ imprisonment;
on Charge 3, damaging property, six months’ imprisonment;
on Charge 4, persistent contravention of a Family Violence Intervention Order, two years’ imprisonment;
on the related summary offence, contravention of a Family Violence Intervention Order, six months’ imprisonment.
38 I order that three months of the sentences imposed on Charges 2 and 3, together with 12 months of the sentence imposed on Charge 4, together with three months of the sentence imposed on the related summary offence, be served cumulatively upon each other and upon the sentence imposed upon Charge 1. This results in a total effective sentence of three years and nine months’ imprisonment and I fix a period of two years and six months as the period of imprisonment that must be served before you will become eligible for parole.
39 I declare that you have spent 402 days by way of pre‑sentence detention.
40 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to six years and six months’ imprisonment with a non-parole period of four years’ imprisonment.
41 Please be seated. There are ancillary orders; is that so?
42 MS BATE: Yes, Your Honour. The disposal order is the only ancillary order sought. Your Honour, the only issue that may arise, the date that is noted there of conviction is in fact the date that the arraignment took place and that can be amended if required.
43 HIS HONOUR: I do not understand him to be convicted until I have pronounced sentence.
44 MS BATE: Yes, Your Honour.
45 HIS HONOUR: And I will hand amend the order.
46 MS BATE: As Your Honour pleases.
47 HIS HONOUR: I have signed three copies of that order. Is there anything that arises out of the sentence?
48 COUNSEL: No, Your Honour.
49 HIS HONOUR: I would like to thank counsel for their assistance in the matter. Remove the prisoner, please.
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