Director of Public Prosecutions v Yavuz

[2023] VCC 208

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-02446

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL YAVUZ

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF SENTENCE:	16 February 2023
CASE MAY BE CITED AS:	DPP v Yavuz
MEDIUM NEUTRAL CITATION:	[2023] VCC 208

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Theft

Legislation Cited:           Crimes Act 1958 (Vic) s 74

Cases Cited:                   R v Verdins [2007] VSCA 102

Sentence:  Community Corrections Order of 36 months’ duration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Buckland	Office of Public Prosecutions
For the Accused	Ms J. Willard	Parker Lawyers and Consultants

HER HONOUR:

1Joel Yavuz, you have pleaded guilty to three rolled up theft charges pertaining to the amounts of, in relation to Charge 1, $92,414; in relation to Charge 2, $27,390.01; in relation to Charge 3, $299,719.  The maximum penalty for each of the charges is 10 years' imprisonment.[1]

[1]Crimes Act 1958 (Vic) s 74.

2Turning first to the circumstances of your offending. You are the eldest daughter of your parents, Salah Assad, (your father), and Ibtissam Assad, your mother.  In 2012 your parents were forced to sell their business ‘Patisserie Lassika’, which they had operated for 20 years. The proceeds were insufficient to meet their debts.  Your father, Salah Assad, filed for bankruptcy. Among the debts was a mortgage on the family home.  After the sale of the business your mother worked two jobs to pay the mortgage. Your father received Centrelink payments, first Newstart then a pension.

3In February 2014 your mother was diagnosed with terminal cancer and was given six - twelve months to live.  It was your mother who managed the family's finances. After your mother's diagnosis it was decided that you would take on the role as manager of your parents' finances during the period of your mother's decline in health.

4As a result of the diagnosis on 4 April 2014, your mother received a life insurance payout amounting to $367,196. The day she received this money your mother opened a new bank account and deposited $200,000 into it. She also opened a term deposit account and deposited $150,000 into that.  From the $200,000 balance approximately, $80,000 was used to renovate the family's home, $10,000 was spent on leisure, your mother gifted $40,000 to her daughters and she paid off approximately $50,000 in personal debt.

5On 26 November 2014 your mother passed away. She left no will. At her passing, your mother had three bank accounts: one, a Commonwealth Bank account with a minus balance of $336.81; a Commonwealth Bank account holding $18,777.84; a Commonwealth Bank account holding $153,424.01.  This was the $150,000 term deposit plus accumulated interest. These accounts ought to have formed part of your mother's estate. It is agreed that you would have some entitlement to part of them. However, you proceeded to deal with this money as if it was your own. You evaded your father's questions about the money and your mother's accounts, and once represented to him that the balance in the accounts was $1,000. You did not tell the family's solicitor about these accounts when the process of administration of the estate was on foot.  This caused the solicitor, who was taking instructions from you in the presence of your father, to list the only asset on the inventory of assets filed in the Supreme Court as the family home in Gladstone Park.

6Across a number of transactions, you dishonestly appropriated all of the funds in your mother's account after her death. The amount of $92,414, the subject of the theft giving rise to Charge 1, was transferred to your own account with other moneys being distributed elsewhere.

7Your plea to this charge has been accepted on the basis that you dishonestly appropriated this sum with the intention to permanently deprive the estate of Ibtissam Assad, your mother, of this sum. I note here that the prosecution later conceded that you had a future entitlement to some of that money. The charge reflects the taking of the amount was at a time at which your entitlement to that was a future entitlement.

8Turning now to Charges 2 and 3. After your mother's passing, your father relied on you to manage his financial affairs.  After your mother's passing, a successful mortgage insurance claim was made and as a result the mortgage at the Gladstone Park house was paid out in full.  Once the property was transferred solely into your father's name, creditors from his bankruptcy claim requested payments from him in the amount of $152,280.97. Your sister, Elaine, advised her father that she would be prepared to buy the home with her husband so that your father and your brother, Andrew, could stay living in the family home and not have to rent. You convinced your sister that this approach was illegal and not a good idea, and that the better course was for your father to sell the home.

9In March 2016 the Gladstone Park house was sold for $550,000. After payments to creditors and solicitors fees and other commissions were deducted, your father was given two cheques. One for the amount of $335,923.52 and one for $38,831. These cheques were deposited into two different accounts over which you had control between 2014 and 2018. Charge 2 is in relation to $27,390.01 from one account and Charge 3 relates to the amount of $299,719 from the other account. The mailing address for these accounts have been changed. Transactions out of the accounts into your accounts were detected.  Your father reported the matter to police in April 2018.

10On 22 November 2019 the Commonwealth Bank credited your father's account in the amount of $321,511.78 in relation to the funds that were stolen by you.  A restitution or compensation order in favour of the bank was said to be likely in this case but there is nothing currently before me. No argument was advanced that I should take possible compensation orders into account.  The total quantum of the thefts charged under Charges 1 to 3 are $419,000 and $523.

11Turning now to the procedural history of your case. I note that on
17 October 2022 you applied for a sentence indication on the basis of a proposed resolution of the case that it is identical to the ultimate indictment to which you have pleaded guilty. The indication sought was whether, on pleas of guilty to the charges, the court would impose a sentence that did not require your immediate imprisonment. That process had to be adjourned to allow time for further plea materials to be obtained. On 3 February 2023, in the context of an evolving landscape, which included a Crown concession that a sentence wholly comprised a Community Corrections Order without imprisonment was not outside the range,  I indicated, for reasons more fully set out below, that I would not impose a sentence of imprisonment to be served immediately.  You were arraigned and entered pleas on the same day.

12Turning now to your personal circumstances, you have no prior and no subsequent criminal history.  At age 45 you come before the court as a person of prior good character, a matter of significance on this sentence.  A condensed version of your personal circumstances is as follows. You were born in Lebanon.  You have a family of Christian faith. You were deeply affected by the events you witnessed in Lebanon before your departure to New Zealand with your family in 1986 when you were eight years old.  Recalling the things you witnessed in Lebanon as a young child still physically affects you.

13Your family then resided in New Zealand and, after six years there, moved to Australia when you were 14.  From a young age, you bore heavy responsibilities for the care of your siblings and acted essentially as a mother to them. This was particularly so in relation to your youngest brother, for whom you gave up tertiary training to care for after his birth, while your family ran their business.  You were subject to sexual abuse at 13 years old. Your abuser was an older relative and you recall three occasions of abuse. You only disclosed this recently to a counsellor.

14Your parents had significant financial difficulties, of which you were aware as you were growing up.  You witnessed domestic violence inflicted by your father upon your mother. You were extremely close to your mother and it was devastating for you when you learned that your mother's cancer was incurable. In the period of her decline, you became your mother's main support and repository for her personal secrets. While you cared for your mother you yourself were often in physical pain arising out of your own health difficulties, the details of which I will return to shortly.

15After your mother's passing, you were discouraged from crying by your father.  You were criticised by him for the amount of the funeral expenses.  As an adult you created your own family.  You have three children, now aged approximately 20, 15 and 12 years old.  Your husband lost his employment in an airline during the COVID shutdowns but later found work in a warehouse.  You struggled with alcohol use in the wake of your mother's death.  You recently converted to your husband's Islamic faith and have abstained from drinking ever since.  You are currently undergoing treatment for breast cancer. This is particularly anxiety producing for you in the context of the loss of your own mother, who was only 56 when she died of the same condition. Your sister from whom you were estranged for a period has also had a recent breast cancer diagnosis and, it would seem, you may be commencing a period of reconciliation with her.

16I must set out my conclusions about the nature and gravity of your offending.  Your thefts took place over a long time, three years, and were a very grave breach of trust, particularly of your father's trust. Your father had recently lost his wife, your mother. He was elderly and in poor health.  He trusted you to manage his money. You repaid that trust by draining his accounts. You achieved your access to these funds via a mixture of exploitation of familial trust as well as misleading those around you about what moneys were in existence after your mother's passing. This is serious and sustained offending. It exploited your family's trust and affection.  The amount obtained across the three charges was very great.

17Your counsel submitted that over the four years, the funds were dissipated by you on your own living expenses, gifts for yourself and others, and lavish barbecues. It was submitted that you believed to some extent that you were carrying out your mother's wishes, citing a lack of trust between her and your father. You may have told yourself you were entitled to do what you did at the time, but on any measure, this was persistent offending and very serious.

18It was conceded by the prosecution, as I have already mentioned, on the ultimate plea that you did have an entitlement to one third of your mother's portion of the money being the subject of Charge 1.  In concluding on the nature and gravity of your offending, I regard the thefts objectively on the spectrum of similar offending to be in the mid to high range.

19Turning now to the impact of your offending on the victims. Your offending took place in the context of a complex family landscape. It is enough to say here that the victims of your offending were made aware of their right to make a victim impact statement and I infer from the facts that the financial losses were very devastating to them, as would be, I would imagine, the breach of trust involved.  I am also aware that in the new circumstances, and in particular your current ill-health, one family member who may have been speaking for the family as a whole, conveyed their wish for the 'charges to be dropped' and for their sister not to be incarcerated.  I do not take this to mean the offending did not cause the victims very considerable suffering. I mention it for completeness as the compassion demonstrated by your family allows me to find other matters such as your prospects for rehabilitation are more favourable to you.

20Turning now to matters advanced in mitigation. You pleaded guilty to the charges, a fact which at any time significantly reduces your sentence.  Wait times in the County Court continue to contract. However, I still calculate an additional benefit for you on your plea in the wake of the very serious disruption and delays caused by the pandemic. Moreover, I accept that you always offered to plead guilty to the theft of the sum of $327,109, and you pleaded guilty to the theft pertaining to your mother's money on the face of a triable issue in relation to that money, and the prosecution later made a concession in relation to that amount. I sentence you on the basis that your plea in relation to
Charge 1 is particularly valuable.

21Turning now to the circumstances of your current ill-health. Your health is currently in crisis; a letter from a registrar at the Peter McCallum Cancer Centre confirms you are currently undergoing a course of chemotherapy treatment for breast cancer, which will be followed by surgery. Your GP, Dr Gredina, authored a letter setting out your other health conditions: severe and uncontrolled irritable bowel syndrome, which limits your ability to leave the house; a major depressive disorder/post-traumatic stress disorder; chronic lumbar plain; and migraines.  Your current health must be described as fragile, uncertain and weighing heavily upon you and severely limiting your current ability to function or at least function outside the home.

22A psychological report authored by Alison Mynard was tendered on your plea.  Another report was referred to, that of Ms Kathy Carrozza, which was only relied upon for the limited purpose of establishing that you have been seeking psychological assistance by way of counselling from at least October 2019. The report of Ms Mynard provided the evidentiary basis for your barrister's submissions that limbs 5 and 6 of the case of Verdins were engaged.[2] You were found to be suffering from post-traumatic stress disorder, persistent complex bereavement disorder, agoraphobia, generalised anxiety disorder with panic disorder and a persistent depressive disorder.

[2]R v Verdins [2007] VSCA 102.

23A mental health assessment conducted as part of the CCO assessment process confirmed your counsel's submissions that you had been admitted to the Northern Hospital psychiatric unit between 2 March 2022 and 5 March 2022.  You were diagnosed with a moderate depressive episode, post-traumatic stress disorder and other reactions to severe stress.  At [61] of Ms Mynard's opinion she says:

'If Ms Yavuz is sentenced to a term of imprisonment her mental health will deteriorate significantly. She suffers from a range of mental illness and requires ongoing targeted psychological interventions, which she is currently receiving treatment for. Ms Yavuz has suffered from severe depressive symptoms and this has been so severe that she has tried to commit suicide.  The writer is concerned that she would be a suicide risk if she was incarcerated.  Her prospects for recovering from her mental health issues will be greater if she were able to continue to receive treatment and psychological interventions to treat her PTSD, depression, anxiety and complex grief.’  In
Ms Mynard's opinion your mental health would deteriorate significantly if sentenced to a term of imprisonment. I accept also that a period of imprisonment would weigh more heavily upon you than a person in normal health.  These are matters which engage Verdins limbs 5 and 6 and which I apply in mitigation of your sentence.

24Turning now to the question of remorse. I accept that you are now remorseful for what you did. You feel disgraced within your family and within the broader community. The obvious toll of your own self-judgment reduces the need for this sentence of specific deterrence.

25Turning now to my assessment of your prospects for rehabilitation. I find that your prospects for rehabilitation are very good, on account of your lack of prior history, the contrition you have demonstrated and your family's renewed affection for you notwithstanding your transgressions.

26Turning now to current sentencing practices. I was provided with a range of sentences from what were broadly described as similar cases, though none of them approached or surpassed the quantum involved in your case. The prosecution provided these cases, as I understood, as examples of dispositions that did not involve imprisonment for larger scale thefts or deceptions. I have had regard to the range of sentences for broadly similar offending.  No case is quite like yours.  My job is to do individual justice.

27I sentence you in the general landscape of offending of this type. Central to your sentence are the principles of general deterrence, denunciation and just punishment. As I have already said, the role for specific deterrence in your circumstances is slight, given my conclusions about your rehabilitation prospects. To be clear, on first apprehension of the facts giving rise to these charges and, in particular, the quantum involved and to the vulnerability of your victim, it appeared on first blush that a sentence of imprisonment to be served immediately was simply unavoidable.  In the ordinary course a gaol term to be served immediately surely must flow from offending of this objective seriousness.  I was steered slowly, it must be said, by the evolution of a number of features of this case. I have considered all the material before me but features that take this case outside the ordinary in terms of mitigation are your ongoing chemotherapy for breast cancer and the consequent uncertainty and distress and planned surgery, your ongoing and severe digestive health problems, your mental health diagnosis, your family's urging for the opportunity to reconcile with you, and by the prosecution concession that these matters amounted to circumstances where a non-custodial sentence was within the legal and permissible range.  Absent any one of these extraordinary factors this disposition would have been of a different kind. For all these reasons, I requested a Corrections pre-sentence report, which was a favourable one.

28Ms Yavuz, on Charges 1 to 3 you are convicted and sentenced to a Community Corrections Order of 36 months' duration.  I am going to now read to you the conditions of the Community Corrections Order.  Once I have read through the conditions, I am going to allow you an opportunity to speak to your barrister about them and I will be asking, through your counsel, for you to confirm your understanding of what is required of you and whether you consent to the making of this order.

29You will first be subject to the standard conditions of a Community Corrections Order.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 36 month period.  If you do you will be brought back before me and re-sentenced for these charges.  You must report to the Coolaroo Community Corrections Service, Ms Willard will give you some advice about how you can do that, within two days of today.  You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within
two clear working days.  It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer.  You are not able to leave the State of Victoria without their prior permission, and that is for the entire

36 months.

30Special conditions that I will attach to the order are as follows.  You will be required to be assessed for alcohol use.  You are required to submit to mental health assessment and treatment. I have considered whether to impose a community work condition on you. However, I do not consider you to be in sufficient good health to perform such work and I decline to do so.

31Ms Willard, are the terms of the order clear enough to you to give some advice to your client?

32MS WILLARD:  Yes, Your Honour.

33HER HONOUR:  All right.  What I will do is stand down briefly and allow that to take place and then I will be asking you whether Ms Yavuz confirms her consent to the making of the order.

34MS WILLARD:  Yes, Your Honour.

35(At 10.56 am Her Honour left the Bench.)

36(At 10.58 am Her Honour returned to the Bench.)

37HER HONOUR:  Yes, Ms Willard, have you had the opportunity to confirm
Ms Yavuz's consent to the undertaking of the order?

38MS WILLARD:  Yes, she does, Your Honour. She understands all of the conditions and she consents to the undertaking of the order.

39HER HONOUR:  All right, good, thank you.  That will be recorded.  Mr Buckland, are there any ancillary orders sought?

40MR BUCKLAND:  No, Your Honour.

41HER HONOUR:  All right. I thank both counsel for their assistance with this case and I will now rise until 11.30.  Thank you.

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