Director of Public Prosecutions v Yalcin
[2024] VCC 580
•2 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01030
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VOLKAN YALCIN |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 April 2024 |
| DATE OF SENTENCE: | 2 May 2024 |
| CASE MAY BE CITED AS: | DPP v Yalcin |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 580 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of being a prohibited person in possession of a firearm, trafficking a drug of dependence, possessing a drug of dependence and storing a firearm in an insecure manner while unlicensed – plea of guilty and appeal against sentence – appeal abandoned before the court – sentencing purposes of general deterrence, denunciation and rehabilitation – significant examples of offending – good prospects of rehabilitation – early plea of guilty – totality
Legislation Cited: Firearms Act 1996
Cases Cited: R v Verdins [2007] VSCA 102; Worboyes v R [2021] VSCA 169
Sentence:Total effective sentence of two and a half years imprisonment. Non-parole period of 15 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
| For the Offender | Ms T. Bolton | Sarah Tricarico Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1These proceedings came before me as an appeal and an application for a sentence indication. It turned into an appeal and a plea hearing. The offending in both proceedings is related in time and, to an extent, in their nature. However, there are differences in the way I may approach each proceeding. With the appeal, I am subject to a jurisdictional limit on sentencing and there is an obligation to give a warning if it is possible the sentence will be increased. My remarks to Ms Bolton at the start of this hearing today, although I did not use the word 'warning' it was clear I was giving such a warning, that it was possible I would increase the penalty imposed by the magistrate when sentencing Mr Yalcin in the Magistrates' Court.
2Volkan Yalcin has appealed against sentences imposed on 11 September 2023 in the Magistrates’ Court at Melbourne. On some charges, he was sentenced to imprisonment and on others fined. The charges involving imprisonment are:
(a) assaulting an emergency worker on duty;
(b) unlawful assault;
(c) prohibited person possessing a firearm;
(d) possessing a dangerous article in a public place;
(e) theft of a motor vehicle;
(f) carry a controlled weapon without excuse;
(g) a prohibited person carrying an imitation firearm.
3These charges were the subject of an aggregate sentence of 175 days’ imprisonment. The magistrate declared the 175 days of Mr Yalcin's
pre-sentence detention as time served. There were another 11 charges where an aggregate fine of $2,500 was imposed.
Circumstances
Informant Ryan
4At about 5.40 pm on 28 November 2022, you were taken to hospital by ambulance. You had become unwell because of suspected drug usage. After arriving at the hospital, you were restrained due to your behaviour. Apart from the restraints, four security guards attended you. You were transferred from the ambulance to a trolley. You yelled and swore at the hospital staff and thrashed around violently. A chest plate was fitted.
5Wendy Irving who is a critical care nurse. She injected a sedative into your left leg. Despite the chest plate, you sat up and spat at Ms Irving, with the saliva striking her right eye. This circumstance constitutes Charge 1, a charge of assaulting an emergency worker on duty. You then spat at one of the security guards, Dennis O’Farrell, with your saliva striking Mr O’Farrell’s face. This constitutes Charge 3, a charge of unlawful assault. You were arrested and later declined to be interviewed by the police.
Informant Flight
6At about 12.30 pm on 3 December 2022, you drove a motor vehicle along the Princes Freeway in Laverton. You veered off the road and struck a barrier. You then crossed more than one lane and continued driving towards Geelong. You then left the freeway at a Werribee exit and drove through two sets of red lights. Driving along Hoppers Lane, you crashed into signs. You continued driving along Boardwalk Boulevard erratically. Throughout, you were followed by a member of the public, who had called Triple 0. You became aware of this person and made a gun gesture at him with your hands. After parking in the car park at a hotel in Point Cook, you were arrested. The police searched your motor vehicle and found:
(a) three ziplocked bags containing methylamphetamine. This constitutes Charge 4 on the supercase and Charge 1 on the set of charges filed by First Constable Flight. It is a charge of possessing a drug of dependence;
(b) a small container with cannabis. This is Charge 5, a charge of possessing a drug of dependence;
(c) a 5 mg Valium tablet. This is Charge 6, a charge of possessing a drug of dependence;
(d) metal knuckle dusters. This is Charge 7, a charge of possessing a prohibited weapon;
(e) a metal baton or club and described as a baseball bat in Charge 8, a charge of possessing a dangerous article.
7You were unlicensed at the time. This constitutes Charge 10, a charge of unlicenced driving. Apart from the allegation of unlicenced driving, you made no comment to questions when interviewed by the police.
8Based on the observations from the member of the public, you were charged with careless driving.
Informant Evans
9At about 5.30 am on 8 December 2022, you drove a stolen Mercedes Benz motor vehicle with cloned or false number plates. The false plates constitute Charge 15, a charge of fraudulent use of number plates. You were heavily drug affected and lost consciousness, leaving the vehicle stationary for about
15 minutes in an intersection in a suburb called Aintree. The possession of the stolen vehicle constitutes Charge 13 in the supercase, a charge of theft of a motor vehicle (Charge 2 of the charges filed by Evans). You were unlicenced, which constitutes Charge 14, a charge of unlicenced driving.10On regaining consciousness, you drove the vehicle out of the intersection and then struck a street sign before losing consciousness again. The police attended and arrested you. A search found a shoulder bag, which contained certain items relevant to the charges filed against you:
(a) an imitation mini-submachine gun style handgun. This constitutes Charges 12 and 19, charges of carrying a controlled weapon and committing an indictable offence while on bail;
(b) a folding knife. This constitutes Charge 18, a charge of carrying a controlled weapon.
11In the vehicle itself was found a Westpac cheque and deposit books in the name of GFS Legal Trust, 3 HikVision CCTV cameras and a hard drive. These items are the subject of Charges 16 and 17, charges of dishonestly undertaking the retention of stolen goods and dealing with property suspected of being the proceeds of crime.
12You were again interviewed and gave 'no comment' answers to questions.
Criminal history
13Between 23 June 2017 and 20 October 2021, excluding appeals, you have appeared in a criminal court on two occasions and have been convicted of
18 charges. On 29 October 2021, you were placed on a community corrections order of 15 months’ duration.Indictment N12705007.1
14You pleaded guilty to two charges of being a prohibited person in possession of a firearm, a charge of trafficking a drug of dependence, a charge of possessing a drug of dependence and a charge of storing a firearm in an insecure manner while unlicensed.
26 November 2022
15On 8 December 2022, you drove a motor vehicle which crashed into the fence of a residential property. The police attended and, among other things, seized your mobile phone. Later analysis of the contents of the phone revealed videos and photographs of firearms, which showed:
(a) in August 2022 – a MP5 submachine gun firearm with 2 magazines;
(b) on 10 September 2022 – a semi-automatic handgun;
(c) on 11 September 2022 – a small spring-loaded handgun;
(d) on 12 September 2022 – a small revolver style handgun;
(e) on 19 September 2022 – a black case containing a revolver handgun and a mini-Mac-10 submachine gun and magazine;
(f) on 27 November 2022 – a revolver handgun.
16Later, further analysis of the phone contained a photo and three videos, taken on 26 November 2022, showing a sawn-off silver and black lever action handgun, a man firing the handgun, the presence of the handgun in a vehicle driven by you and you cocking and firing the handgun. A search of a premise in Sunshine North found this handgun. It is the subject of Charge 1, a charge of a prohibited person possessing a firearm.
17On 8 December 2022, that is the same day, a search of your bedroom revealed:
(a) a bag containing a sawn-off bolt action rifle with a magazine loaded with .22 calibre ammunition. These circumstances constitute Charge 2, a charge of a prohibited person possessing a firearm, Charge 5, a charge of storing a firearm and ammunition in an insecure manner and Summary Charge 12, a charge of committing an indictable offence on bail;
(b) a case containing four assorted rounds of ammunition. This is the subject of summary Charge 6, a charge of possessing cartridge ammunition without a licence or permit;
(c) a case containing four assorted rounds of ammunition. This is the subject of summary Charge 6, a charge of possessing cartridge ammunition without a licence or permit;
(d) a black balaclava;
(e) Two one-litre bottles containing a total of 1,785.1 grams of 1,3 Butanediol, which is an isomer of 1,4 Butanediol. On your mobile phone, there was a 'tick list' indicating your possession of the drug was for sale. This constitutes Charge 3, a charge of trafficking in a drug of dependence; and
(f) two plastic containers containing a small quantity of cannabis.
18You were arrested that day.
19At the time of this offending, you were the subject of a community corrections order with a supervision condition. It was imposed on 29 October 2021 for a period of 15 months. By virtue of the definition in s3(1) of the Firearms Act, you were a 'prohibited person'.
Personal
20You are now 26. You have four siblings.
21When you were 12, fighting broke out between your parents and was constant. You saw your father’s unfaithfulness to your mother. By 11, your parents were divorced. At 16, you left home and became a 'street kid'. You lived in various suburbs of Melbourne. You got into bad company and did stupid things for other persons.
22Your grandfather cared for your mother until his death in February 2022. The death of your grandfather has badly affected you. Your mother has significant back difficulties and Crohn's disease and receives a disability support pension.
23You live with your mother in Craigieburn with a brother and one of your sisters. You care for your disabled mother and have a close relationship with her.
24You left school during Year 9. You then completed most of a panel beating apprenticeship except for the theoretical aspects. At 21, you worked for the railways, but were retrenched during the pandemic. You had earlier bought an investment property, but your retrenchment forced you to sell it.
25Between 2020 and 2022, you were a member of the 'The Finks' Outlaw Motorcycle Gang. You left, paying an exit fee from the proceeds of the sale of your investment property. You believe your membership was a mistake and have learnt from it.
26Since 17, you have been prescribed diazepam. Apart from counselling by your general practitioner, you have not received any mental health treatment. When imprisoned between December 2022 and May 2023, you were prescribed an anti-psychotic medicine.
27At 12, you started drinking alcohol. At 15, you first smoked cannabis. By 18, you were a regular user of MDMA. From 18 to 25, you regularly used cocaine, amphetamine, methylamphetamine and benzodiazepine.
28Between 9 June and 5 September 2023, you completed a 12-week program conducted by Bail Safe Australia. It involved case management, counselling, group therapy, supervised urine drug screens and attendances at Narcotics Anonymous. Your participation was excellent. As Jackson Oppy, a director of Bail Safe said[1]:
'Overall, Volkan’s active participation, gained insights, and progress throughout the program reflect a positive trajectory towards addressing his substance use history and mental health concerns, despite encountering setbacks. His commitment to change and the development of coping strategies indicate a promising outlook for his continued recovery and well-being'.
[1] Report dated 12 February 2023 [?2024]
29You are not using illicit drugs now and have not been doing so for many months.
30You oldest sibling, Ebru, set up a cleaning business. It cleans residential and commercial properties and has contracts with estate agents. She employs you and others on a full-time basis.
31Since employing you, she has noticed a big change in you. You have developed goals. You take your nephews and nieces out. You organise trips for the children. You are involved in your family.
32According to her, you are eager to work and seek more work for her business. You look at ways to expand the business. You developed a plan, using a sub-contractor, to expand the business into other areas of property work: gardening, lawn maintenance, concreting and cleaning gutters. However, the fact she needs you in the business is immaterial from a sentencing perspective.
Psychologist
33Ian Mackinnon is a consultant psychologist. At the request of your solicitors, he interviewed you on 20 December 2023[2].
[2] Report dated 24 January 2024.
34Mr Mackinnon diagnosed you as suffering from two longstanding disorders – mixed depressive and anxiety disorder and substance abuse disorder. He considered you suffered from these disorders at the time of your offending. The symptoms of the former are now mild but could worsen. The latter is in partial remission due to treatment over an extended period, which included taking Suboxone. There are some symptoms of a post-traumatic stress disorder present, according to Mr Mackinnon, insufficient to diagnose that disorder.
35Based on what he was told, Mr Mackinnon considered[3]:
‘…at least some of Mr Yalcin’s offending was shaped by hallucinations and delusional and paranoid ideation, and the cognitive distortion that resulted.
In my opinion, in the context described above, the antisocial and criminal values that Mr Yalcin had adopted at the time, also made significant contributions to his offending'.
[3] At pp 8 and 9.
36Mr Mackinnon wrote a second report[4]. In doing so, he spoke to you and your sister. He concluded:
'Mr Yalcin continues to make steady rehabilitative progress, and he appears likely to maintain this positive pathway. Thereby reducing the likelihood that he will engage in recidivism of any kind'.
[4] Report dated 19 March 2024.
37As Mr Mackinnon pointed out, imprisonment will mean you will associate again with criminals, something you have avoided. Psychologically, imprisonment would risk a deterioration in your anxiety and depression. You may struggle to cope with prison and require crisis care.
Discussion
38As can be seen from the summary of the circumstances of your offending, they are closely related in time and in nature. Before me, that offending was the subject of appeal against the sentence of a magistrate and guilty pleas to charges on an indictment. Among other things, the former is the subject of a jurisdictional limitation and the obligation to warn while the latter is not.
39Focusing on the charges in the indictment and the related summary offences, the maximum penalties are:
(a) prohibited person possessing a firearm – a fine of 1,200 penalty units or
10 years imprisonment.(b) trafficking in a drug of dependence - 15 years’ imprisonment;
(c) possession of a drug of dependence and in this case, it is five penalty units;
(d) storing a firearm in an insecure manner while unlicensed - 240 penalty units or four years imprisonment;
(e) possessing cartridge ammunition without a permit - 40 penalty units;
(f) committing an indictable offence while on bail - 30 penalty units or three months imprisonment.
40I might add that brings into play s.16(3C) of the Sentencing Act.
41Again, looking at the main charges in the indictment, of the purposes of sentencing, general deterrence, denunciation and rehabilitation stand out. The offending requires general deterrence and denunciation to figure significantly in the sentencing process. With the charge of trafficking, a trafficable quantity of a mixture of 1,4 -Butanediol is 50 grams and a commercial quantity of a mixture of that drug is 2 kilograms or 2,000 grams. You possessed 1,785.1 grams, which is obviously well past the threshold for a trafficable quantity and close to the threshold for a commercial quantity. The maximum penalty for trafficking a commercial quantity of a drug of dependence is 25 years’ imprisonment. Since quantity is an important consideration in sentencing in drug offences, this quantity places you at the upper levels of trafficking in terms of quantity, where the maximum penalty as I say, 15 years’ imprisonment.
42For Charge 1, the firearm was a lever action .22 calibre handgun, loaded with four rounds. For Charge 2, the firearm was a sawn-off bolt action rifle with a loaded magazine of .22 calibre ammunition. The former was found in the linen closet of the hallway while the latter in a bag in your bedroom. Both firearms are serious weapons, loaded, and presumably capable of firing. Both charges are significant examples of the offence.
43On the other hand, your prospects of rehabilitation are very good. This is borne out by your successful completion of the Bail Safe Program, the changes in your outlook as explained by your sisters, and I have read the references of both sisters. Since June 2023, you have been in the community and behaved properly.
44At 26, you are not a youthful offender but are a young person. You have had a troubled youth, stemming largely from the misbehaviour of your father. This translated into drug usage and criminal behaviour with the latter partly influenced by a distorted mental state.
45Your impaired mental functioning is raised by Mr Mackinnon. I quoted a passage from his first report. It is worth quoting again:
'…at least some of Mr Yalcin’s offending was shaped by hallucinations and delusional and paranoid ideation, and the cognitive distortion that resulted.
In my opinion, in the context described above, the antisocial and criminal values that Mr Yalcin had adopted at the time, also made significant contributions to his offending'.
46At the very least, the cognitive distortion resulted in your lessened ability to reason and make sound judgments. It causes moderation of the sentencing purpose of general deterrence and denunciation to a modest extent. It also moderates your moral culpability. Your current mental state has no effect on specific deterrence. But the possibility of the deterioration of your mental health in custody does engage principles five and six stated in R Verdins[5].
[5][2007] VSCA 102.
47Your guilty pleas were entered after I had suggested a plea rather than a sentence indication. The progress of the charges in the indictment was influenced by the progress of the appeal, to an extent. The pleas on the indictment charges were entered reasonably early in the process.
48There are benefits of your guilty pleas. First, you acknowledge your guilt in no uncertain terms.
49Second, they relieve witnesses from the need to give evidence against you in a trial. Even for professional witnesses, this is not an easy task.
50Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
51Fourth, the crisis addressed in Worboyes v R[6] and other cases has now disappeared. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. On 6 October 2023, the chief judge of this court announced publicly, his expectation the backlog of cases created by the pandemic would by year end, reach the pre-pandemic levels of pending cases. This has occurred. The amelioration of penalty identified in the case of Worboyes no longer applies, even though the virus can still cause some disruption to jury trials.
[6] [2021] VSCA 169.
Totality
52Your counsel raised the principle of totality, which requires an evaluation of the overall criminality involved in all the offences with which you are charged, both the charges in the appeal and in the indictment. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
53I have taken the principle into consideration. However, since I consider the sentences imposed on the appeal were lenient, I cannot give the principle much weight in sentencing you on the charges in the indictment.
Sentence
54On Charge 1, a charge of being a prohibited person in possession of a firearm – I sentence you to one year’s imprisonment;
55On Charge 2, another charge of being a prohibited person in possession of a firearm – I sentence you to one year's imprisonment;
56On Charge 3, a charge of trafficking in a drug of dependence – I sentence you to two years’ imprisonment;
57On Charge 4, a charge of possession of a drug of dependence, you are convicted and discharged;
58On Charge 5, a charge of storing a firearm in an insecure manner while unlicensed – I sentence you to three months’ imprisonment;
59On Summary Charge 12, a charge of possessing cartridge ammunition, you are convicted and discharged;
60On Summary Charge 6, a charge of committing an indictable offence while on bail, I sentence you to one month's imprisonment.
61The sentence on Charge 3 is the base sentence. Three months of the sentences on Charges 1 and 2 are to be served cumulatively upon themselves and the base sentence. The other charges of imprisonment are to be served concurrently. The total effective sentence is two and a half years imprisonment. I will set a non-parole period of 15 months’ imprisonment.
S 6AAA
62If you had not pleaded guilty, but had been found guilty after a trial, I would have sentenced you to three and a half years imprisonment and set a non-parole period of one year and nine months imprisonment.
Forfeiture and disposal
63Owing to the fact that the appeal has been abandoned, in relation to the charges in the indictment, I will make the forfeiture and disposal orders in the terms of the draft orders.
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