Director of Public Prosecutions v Tunc

[2022] VCC 1089

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

AT Melbourne

CRIMINAL DIVISION

CR 21-01538

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERKAN TUNC

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2022
DATE OF SENTENCE:	15 July 2022
CASE MAY BE CITED AS:	DPP v Tunc
MEDIUM NEUTRAL CITATION:	[2022] VCC 1089

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:   Plea of guilty – one charge robbery – recklessly case injury – circumstances of the COVID-19 Pandemic, Court Integrated Service Program

Legislation Cited                 Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)

Sentence Total effective sentence of 415 days imprisonment with a Community Corrections Order of six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos	Office of Public Prosecutions
For the Accused	Mr B. Lindner	Emma Turnbull Lawyers

HER HONOUR:

1Serkan Tunc, you have pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act, and one charge of causing injury recklessly contrary to s 18 of the same Act, and to the related summary offence of committing an indictable offence while on bail.

2The maximum penalty for robbery is 15 years’ imprisonment. The maximum penalty for recklessly causing injury is five years’ imprisonment, and the maximum penalty for the summary offence is 30 penalty units or three months' imprisonment.

3The Prosecution's summary of facts giving rise to your offending was tendered on your plea; marked Exhibit A, it is attached to, and forms part of, these reasons. I will not repeat it here in its entirety, but I will summarise some of its relevant parts.

4On 28 November 2020, you were in Albion Alley in the Central Business District with Madeleine Wapshott. There you met with Mr Stephen Rhoda, by arrangement, in order to undertake a drug transaction. Prior to this meeting you had called Mr Rhoda about 11 times, in the hour between 10:00pm and 11:00pm. Albion Alley runs off Little Bourke Street between Myer and Mecure Hotel near the corner of Swanston Street.

5CCTV footage was obtained from the hotel, and that captures some, but not all, of the incident giving rise to these charges. The CCTV shows that at 10:59pm you and Ms Wapshott were in Albion Alley, Ms Wapshott speaking on a mobile phone. At 11:06pm the footage shows you both leaving the alley. Then at 11:20pm you, Ms Wapshott and Mr Rhoda enter the alley together. You and Ms Wapshott were on foot; Mr Rhoda was riding a bicycle.

6Mr Rhoda had a black backpack on his back, and a red satchel on a strap across his shoulder and chest. The three of you moved together, deeper into the lane. After about a minute you move out of view of the CCTV. Over the next minute, no one can be seen on the footage, although some unclear voices can be heard. There is also a 32 second gap, in the footage that is, for whatever reason, not captured.

7In this period, of slightly less than a minute, something went wrong in the drug transaction, and an argument transpired. You picked up a metal pole that was resting in a corner of the alley and used it to hit Mr Rhoda several times to his head and body. At this stage Mr Rhoda was still wearing his bike helmet, straddling his bicycle. Both he and the bicycle fell over during your assault, and Ms Wapshott pulled at Mr Rhoda's shirt, trying to pull his backpack off. These events are not captured on the video.

8

The footage then shows what happens next: the three of you come back into view on the CCTV, moving towards Little Bourke Street; Mr Rhoda is still wearing his bike helmet, a white t-shirt, and a red satchel; he no longer has the bicycle or the backpack. The prosecution case which, by your plea, you now accept, is that

Ms Wapshott removed the backpack from Mr Rhoda during the initial phase of the assault.

9The prosecution case, now endorsed by your plea, is that you intentionally assisted and encouraged the offence, by assaulting Mr Rhoda and telling Ms Wapshott to check Mr Rhoda's pockets. This is part of Charge 1: robbery of the backpack.

10In the period from 11:21:52–11:22:22, the CCTV shows you hitting Mr Rhoda's arm with the pole. While you hit Mr Rhoda with the pole, Ms Wapshott grabbed at his shirt; both of you grabbed at the shoulder strap of his satchel. At one point in this struggle, it appears that Mr Rhoda took hold of the pole, which then falls to the ground momentarily. Mr Rhoda suffered a fractured wrist as a result of these events and this gives rise to Charge 2, recklessly causing injury.

11

From 11:22:17, you appear again on the CCTV, carrying the pole and the red satchel, and this forms the other part of Charge 1: the robbery. About this time,

Mr Rhoda can be heard yelling, 'Get off me’ and ‘fucking hell, mate'. The prosecution allege that Mr Rhoda is yelling at Ms Wapshott at this point.

12

At 11:22:30, Ms Wapshott comes back onto the CCTV and walks deeper into the lane in your direction, though you are not visible on the footage. Ms Wapshott carries Mr Rhoda's shirt. Ms Wapshott tells you, 'You didn't get the gear', you reply from offscreen, 'Get the bag.' And again, a moment later, 'Get the bag.' You then say, 'Let's go.' At this point you reappear on the CCTV riding Mr Rhoda's bicycle towards Little Bourke Street, carrying the red satchel in your right hand.

Ms Wapshott is carrying Mr Rhoda's black backpack.

13Police arrive at about 11:27pm and Mr Rhoda was taken to St Vincent's Hospital by ambulance. Dr Duan Drafsagi Guya, of the Victorian Institute of Forensic Medicine, later confirmed that Mr Rhoda suffered a fracture of the ulna, one of the two bones in the forearm, involving 'mild posterior displacement'. He did not require surgery. He was discharged within a few hours with a plaster cast and sling. The expectation at that point was that the injury would be fully healed within approximately eight to nine weeks.

14You were arrested on the evening of 29 November 2020. At the time of these events, you were on bail. This gives rise to the related summary offence to which you have also pleaded guilty.

15

Turning now to the procedural chronology of your case. Your offending took place on 28 November 2020, and you were arrested the following day. A committal was conducted in the Magistrates' Court on 19 July 2021, and a case conference took place before me on 9 November 2021. A day before that case conference on

8 November 2021 through your lawyers you offered to plead guilty to the offences that are now on this indictment. You were granted bail on

17 January 2022.

16For whatever reason your plea offer was not accepted by the prosecution, until shortly before the listed trial date of 11 May 2022, and I note that you were arraigned on 9 May 2022. Your co-accused Ms Wapshott was dealt with in the Magistrates' Court on 12 November 2021, for the charges of robbery, theft, attempted theft and committing an indictable offence while on bail. She was also dealt with other unrelated offences.

17She was sentenced to an aggregate sentence of 14 months with a non-parole period of eight months’. Though there were, as I have said, unrelated matters, of a relatively minor nature, dealt with at the same time.

18On your plea I was provided with a copy of Ms Wapshott's prior history in order to make an assessment of the principle of parity in this case.

19Turning now to your prior criminal history. You have an enduring criminal history, much of which, however, is at a low level, and appears to be of the kind that runs parallel to deeply entrenched drug dependence. You have very limited priors for confrontational and violent offending. You have no priors for robbery. You had a conviction for recklessly causing serious injury dealt with in this court, but that was 16 years ago, for which you received a sentence of 18 months with a non-parole period of nine months, by far the longest sentence in what is otherwise low-level drug-related offending, dealt with in the main by fines or short terms of imprisonment.

20Turning now to the nature and gravity of your offending and your moral culpability. Your offending arose in the context of a dispute over a drug transaction. The prosecution summary describes you as 'intentionally assisting and encouraging the events by assaulting the victim and telling Ms Wapshott to "check his pockets" among other acts.'

21Your offending was clearly unplanned, chaotic and arose out of the desperate circumstances which attends the drug trade. Although you used a metal pole in the assault, it is not suggested you came armed with that object; it was instead found in the alley at the time of offending. The items stolen were not of great value: a satchel and a backpack. I note that you are not charged with the theft of the bicycle.

22I understand that the police returned these items directly to Mr Rhoda on the night. I note an application for compensation, for cash that was said to have been stolen, was abandoned by the prosecutor on the plea. It was also clear from at least one image that the victim Mr Rhoda at one stage during this altercation held the pole.

23I regard the objective gravity of your offending to be of a modest order. You have some shared responsibility for the offending with your co-accused. I accept that your offending arose out of your desperation to use drugs, rather than out of malice or for some more planned or more vicious motive. It was, however, sustained and had a number of chapters.

24Although no victim impact statement was tendered, I take into account and sentence you on the basis that this was an alarming event for Mr Rhoda. It was sustained, and the injury to his arm was no doubt both painful and very inconvenient for him.

25Turning now to delay. You faced considerable delay in the resolution of your case, and much of your time was spent on remand, in the more onerous conditions that prisoners in Victoria (at least at that time) had to endure as a result of the pandemic, and some of these measures are still unfolding, although you have been on bail since January.

26I have already noted the several months that elapsed between your offer to plead guilty to this indictment, and acceptance by the prosecution just prior to trial and I take the question of delay into account in fixing your sentence.

27Turning now to your personal history. You are now 43 years old. You were 41 at the time of these offences. You were born in Australia and are of Turkish background. Your parents migrated to Australia and raised you and your brothers and sisters here. You had learning difficulties at school, and you left school early, and you are now considered to be functionally illiterate.

28When you were 13, you and your two parents were in a serious car accident. They were hospitalised for some months afterwards and you had a broken arm and lower back injury.

29You have lived at home with your parents for much of your life, although you were married for some 15 years and had a son, now aged 17. In 2014, you and your then wife went to Turkey with your son in an effort to break the hold of your drug addiction on you. You returned to Australia, but they remained.

30You have an enduring substance abuse history, starting at the age of 14, at which time you developed the habit of daily heroin use, only abstaining when in gaol. In your mid 20s you used methamphetamines for about five years. You have been treated on four occasions for overdoses. It is clear that your drug addiction has profoundly shaped the terms of your life's course.

31Turning now to matters in mitigation. You offered to plead guilty to the charges on the current indictment in November 2021, a matter of significance in your favour at any time, but at this time authority makes it clear that a special and additional discount should flow to an accused in your circumstances. While the list of trials awaiting finalisation in this court is contracting, there is still work to be done, and your plea has taken another trial out of this list, and your sentence will be reduced accordingly.

32Turning now to your conduct on bail. Since being granted bail in January this year, you have engaged consistently with the Court Integrated Service Program (‘CISP’), and I have had regard to the progress reports that I have obtained from the professionals who have assisted you in that program. Unsurprisingly, you struggled with abstinence when you were first released on bail. But what I regard as significant is that you told the people you were working with when you struggled in this way, and continued to take their help and advice.

33Moreover, you have since commenced a program of intravenous opioid replacement therapy, which is administered to you by your GP once a month. This program releases you from daily attendance to pick up prescriptions from a chemist, and has so far protected you from major relapse. I regard this as the beginning of a very long process of rehabilitation. You have a very large, slow ship to turn around, given how entrenched your drug addiction has become. You have, however, taken the first early steps in the right direction.

34Turning now to the Alison Schokman report. You were assessed by Neuropsychologist, Ms Alison Schokman, on 4 April this year after your CISP workers noted risk factors for an acquired brain injury. Ms Schokman's report which was tendered on the plea sets out your history and the results of the neuropsychological testing that she performed. She noted your capacity in a range of spheres as being significantly impaired.

35In her opinion you present as 'globally impaired in relation to cognitive functioning'. This impairment it is thought to have multifactorial aetiology, reduced pre-morbid intellectual ability, longstanding learning difficulties and poor educational achievements, and the consequent illiteracy.

36Compounding these problems is your polysubstance abuse, spanning three decades, with onset in your childhood. Your abuse of substances with such regularity, from such a young age, has, in her opinion, the potential to have compromised your cognitive, social, and emotional development, resulting in atypical brain development with permanent consequences for adulthood. She concluded that your current status is best characterised by an acquired brain injury of multifactorial aetiology.

37Your counsel did not advance any particular legal submission on your plea based on these findings; other than to say I should take into account these problems in assessing your culpability more generally on the plea. These matters offer an explanation for what you did, and how you did it, without rendering an excuse. I take into account these matters in assessing your prospects for rehabilitation which are, I conclude, somewhat guarded, but which I hope will now be assisted by the provision of more complete information about the deficits with which you suffer.

38

I note that you clearly have warm and ongoing family support and affection, particularly in the form of a letter tendered on your plea, authored by

Mr Abdul Keram Tunc, who states you have been working alongside his team in his carpentry business for the last three months. This is an encouraging sign of your ability to apply yourself to some purposeful activity. I have also had regard to the helpful letter authored by Mr Muktah Mohammed, who has been undertaking counselling and support of you in the context of your shared Islamic faith. I have had regard to his letter of today, dated being 15 July 2022.

39

In fixing your sentence I have had regard to the sentence imposed on your

co-accused Ms Wapshott. She has a similar drug-related criminal history to yours, but she is younger, at 28 years old. She had a non-parole period of eight months. You have served over 13 months in prison by way of pre-sentence detention. You have achieved a track record of some rehabilitation while on bail, and I do not regard your culpability in terms of the actual offending as disparate.

40I must sentence in your case for both specific and general deterrence. The former, particularly in relation to your prior criminal history, notwithstanding that there is little obvious seriousness in it. You must be punished for what you did, though I regard that aspect of the sentence to be mostly, but not entirely, covered by the pre-sentence detention already served. I regard the protection of the community to be best served by your continued rehabilitation, rather than by the cycles of imprisonment, release, and relapse, that have so far failed to address your problems.

41I am conscious that a Community Corrections Order, even one without unpaid community work, has a punitive aspect, and while I must sentence you with your rehabilitation in mind, I must also be careful not to impose a sentence that offends the principle of parsimony. It is tempting to impose a lengthy Community Corrections Order to assist you to navigate your rehabilitation; however, such a sentence must also be appropriate in all the circumstances and, as I said, parsimonious.

42You have already served 415 days pre-sentence detention, and you have been on bail for the last seven months, adhering to rehabilitative programs and conditions of a relatively demanding nature and I take that into account. Your counsel urged me to consider no further imprisonment but to sentence you to time served with a Community Corrections Order with the goal of your rehabilitation and the prosecutor submitted that such a sentence was within range.

43As I have already said, you are at the beginning of a very long journey towards your rehabilitation, but my power to sentence you is also constrained by reference to the nature and gravity of what you did, and by parity concerns, and by the amount of pre-sentence detention you have already accrued. I am going to impose a Community Corrections Order; however, it will operate for only a tiny fraction of the time that you will need to rehabilitate. Soon, Mr Tunc, you will need to find other motivations for your rehabilitation, that are more than simply the desire not to be incarcerated any longer.

44In imposing your sentence, Mr Tunc, I am going to give you an aggregate sentence, and I have to explain to you what that is. When crimes are committed altogether, instead of giving each crime its own sentence, I am allowed to bundle them together in one sentence, which is what I am doing in your case, because it is simpler.

45On Charges 1 and 2, robbery and recklessly causing injury and on the related summary offence on committing an indictable offence while on bail, you are convicted and sentenced to an aggregate period of imprisonment of 415 days, in combination with a Community Corrections Order, the duration of which will be six months.

46Pursuant to s 6AAA of the Sentencing Act, I indicate that, had you not pleaded guilty, but had been found guilty after trial I would have sentenced you to a period of imprisonment of two years and two months and a non-parole period of 18 months’.

47Pursuant to s 18 of the Sentencing Act, I declare that a period of 415 days is to be counted as already served pursuant to this sentence.

48Mr Tunc, I am going to tell you what you have to do on your CCO, and I want you to listen, and then I am going to ask Mr Lindner to give you some advice about it, and then I am going to ask you whether you commit yourself to doing the CCO. Just so you know I regard this moment as being quite important. It is important that you listen, and you understand what you have to do, because if you do not do it you come back before me and I am going to really need a very good explanation about you not doing it.

49So, it is for six months. The standard conditions are these.

50You must not commit any other offences that are punishable by imprisonment, so you cannot get into any other trouble.

51

You must report to Broadmeadows Community Corrections Service within

two days by phone. The weekend does not count you have extra time.

52You are required to advise your supervisor in the Corrections Office if you change your address or where you are working and you have to do that within two days.

53You must submit to any visits as directed and obey all the instructions and directions of the Community Corrections Officer. So, if they ask you to attend an appointment at a certain time, that is what you do.

54You are not able to leave the state of Victoria without their permission, and that is for the whole six months.

55There are also some special conditions that I am attaching.

56You must be under the supervision of a Community Corrections Officer for a period of six months.

57You must also undergo assessment and treatment including testing for drug abuse or dependency as directed. So that means, if they tell you to go and do a drug screen, you have to go and do the drug screen, no matter what.

58You must undergo mental health assessment and treatment, and that may include treatment from a psychiatrist or psychologist, or at a hospital or residential facility; whatever they direct, you have to do it.

59I am not going to order you to do any unpaid community work. I also require you to participate in judicial monitoring. That means you come back to court like you have been doing on CISP, and I get a report of how you are doing on your CCO. I find out whether you have done all the things you are about to promise to do, all right?

60The date of that will be on 28 October at 9:30am. You are going to come to court again, and you can do that either online or in person, and I am going to find out whether you kept your promise. If you are about to make a promise to me, I am going to find out whether you kept that promise, all right? So, I want you to have a moment now with Mr Lindner, your barrister, and he is going to have a chat to you and find out whether you want to make that commitment to doing the CCO. Thank you, Mr Lindner.

61Yes, Mr Lindner have you had a chance to give your client some advice and take instructions?

62MR LINDNER: He tells me he understands all the conditions. He understands that he has to come back in, 28 October 2022. He consents to all of the conditions, and I have also told him the consequences of failure to comply, that he would expect for Your Honour to consider giving him a further sentence of imprisonment in those circumstances. And he understands that.

63HER HONOUR: All right, thank you Mr Lindner.

64MR LINDNER: Yes, I've seen that list and there's no objection, Your Honour.

65HER HONOUR: Thank you. I'll make the disposal order as sought. Thank you counsel for your assistance. Thank you,* Mr Stougiannos.

66MR STOUGIANNOS: Thank you, Your Honour.

67MR LINDNER: If Your Honour pleases.

68HER HONOUR: Thank you Phillip we'll adjourn.

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