Director of Public Prosecutions v Yildirim

[2016] VCC 1742

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-02255

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMINE YILDIRIM

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Yildirim
MEDIUM NEUTRAL CITATION:	[2016] VCC 1742

REASONS FOR SENTENCE
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Subject: Criminal law - sentence              

Catchwords: Plea of guilty to one charge of  attempting to pervert the course of justice

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran
For the Accused	Mr A. Eidelson

HER HONOUR: 

1Emine Yildirim, you have pleaded guilty to one charge of attempting to pervert the course of justice, in circumstances which are as follows: 

2Your son, Serkan Sen, is aged 26, and had been released on bail in relation to some serious charges.  His bail conditions included that he live with his father, Emrah Sen, from whom you are separated, and I understand divorced as well, and that he not leave Australia. 

3On 3 March 2014, a warrant was issued for the arrest of Serkan Sen in relation to further serious alleged offences. 

4Police went to the father's home looking for Serkan Sen that day and they asked his father to let police know his son's whereabouts when he became aware of them. 

5Later that day, Mr Emrah Sen contacted police and told them his son would be signing in for bail that evening at Broadmeadows Police Station. 

6At 7.30 that evening, Serkan Sen attended the police station, but fled when he realised he was going to be arrested. 

7Police went to the homes of both parents, you and Mr Sen Senior, asking both of you to notify police if you became aware of your son's whereabouts. 

8Over the next two days, 4 and 5 March, you made arrangements through
a travel agent for the purchase of a one-way ticket to Turkey via Abu Dhabi, leaving at 11.10 pm on 5 March.  You, yourself, spoke to the travel agent to make the booking and told her that your son's father would be ringing to make the payment for the flight. 

9This aspect of the flight booking is a matter you have disputed.  You maintain that you and your son's father were not engaged in a joint criminal enterprise, as alleged.

10Having heard the evidence of the travel agent today, and having listened to the record of interview, and having heard submissions, I am satisfied beyond reasonable doubt that you asked your ex-husband for money to pay for your son's flight to Turkey, and that he provided the credit card details to the travel agent. 

11Mr Sen Senior paid for the flight using the credit card of one Sava Gejo, a motor mechanic who worked for him from time to time.

12The travel agent has stated that Mr Sen Senior identified himself as Serkan's father and gave his son's full name. 

13Not long afterwards, you rang the travel agent to confirm that payment had been made and requested the E-Ticket to be emailed to you. 

14At 8 pm that night, you arrived at the airport with your son, Serkan and when he checked in for the flight, he triggered a system warning while going through Customs, due to the warrant out for his arrest.  He fled the airport before he could be detained and he was located and arrested by police on 6 March. 

15You were interviewed and told police that you tried to help Serkan leave the country to get him off drugs.  You agreed that you knew police were looking for him and understood that he was in trouble, which is why you tried to send him overseas.  You admitted that you were aware that Serkan had run away from the police when he went to sign on for bail and you admitted that you knew he was not allowed to leave Australia.  You said you force him to leave. 

16There has been a long history of your son's drug use and criminality connected with it.  He has caused havoc in your family.  You have been the victim of assaults by him several times and have had an intervention order against him.  When you heard he was to be arrested again, you reacted by trying to do what you thought was best for him, in terms of his rehabilitation, knowing it was wrong, but not realising it would get you into so much trouble.  You are now apologetic for having done it.

17Your background suggests some deprivation, in that although you were born in Australia of Turkish immigrant parents, you left school at the age of 11 to help your parents and so have received very little education.  Although you speak English well, you have an unsophisticated understanding of the language and a short attention span. 

18Your marriage of 24 years, I believe, broke down some years ago, when your husband left the home, leaving you to bring up your two sons. 

19You have had many health problems for some years now, including chronic back pain, which has resisted treatment, and have been treated for depression and anxiety for several years before this offending, according to the reports I have read. 

20You have no previous convictions and you are well regarded in your community. 

21This is a serious offence, because it attacks the foundations of the criminal justice system.  It is a serious matter indeed to help a person to abscond, as you attempted to do.  It has a maximum penalty of 25 years' imprisonment.  It follows that any punishment for it must be a message to others that if they act in a similar way, they will be dealt with by the courts and punished. 

22I accept that it is very unlikely that you will offend again.  I accept that you did so out of a misguided attempt to help your son and to try and bring about his rehabilitation.  You were very fearful that even time in gaol would not deter him and he would continue to offend unless he could go to Turkey and take part in military service.  You hoped that he could then return to Australia cured of his drug dependence. 

23You are entitled to a discount on your sentence because you pleaded guilty at a relatively early stage and therefore facilitated the process of criminal justice.  I take that into account and accept that also as an indication of remorse. 

24Both your counsel and the prosecution agree that imprisonment in your case is not necessary and that a Community Correction Order is appropriate.  You have been assessed as suitable for a Community Correction Order and it will begin today and will last for 12 months. 

25You will be under supervision and you must perform 30 hours of unpaid community work over six months.  I have made that a very moderate amount of work hours, taking into account your health, but bearing in mind that it is necessary in the circumstances. 

26Your mental health treatment will be monitored.

27You must attend at the Broadmeadows Corrections office, which is at 24 to 27 Dimboola Road, Broadmeadows by 4 pm on 22 November, which is next Tuesday. 

28Your counsel has submitted that I should not record a conviction because as
a person with no convictions previously, it would be confronting for you to have to face this, as well as the possibility that your freedom to travel overseas might be hindered.  He submitted that having been an exemplary citizen for many years, noting that you are now 46, an exception could be made by not recording a conviction. 

29He noted that it would amount to extra punishment.  He referred me to the decision of the DPP v Candaza & Ors, in which the Court of Appeal considered the circumstances which might justify a non-conviction sentence.  That case made it clear that in relation to serious crimes, the existence of rare and exceptional circumstances are usually required.  In exercising my discretion,
I do not think those circumstances exist here.

30The prosecution opposes that submission, arguing that because the charge is so serious, and because general deterrence is an important component of the sentence, a conviction should be recorded.  I agree.  I am not persuaded that your particular circumstances amount to rare and exceptional circumstances and so a conviction will be recorded.

31That order will be printed out in a moment and I will give it to you,
Mr Eidelson for you to have a look at before given to your client to sign. 

32While that is being done, are there any other matters that I have omitted or neglected?

33MS MORAN:  No, Your Honour.

34MR EIDELSON:  No.  No, Your Honour. 

35HER HONOUR:  Thank you.  Madam Interpreter, I understand you have to go around about now, is that right?

36INTERPRETER:  Yes, Your Honour.  My time's up, but I can stay for another five to ten minutes to ‑ ‑ ‑

37HER HONOUR:  We will not need you any longer than that and I will thank you now for your assistance today.

38MS MORAN:  Your Honour, just while that's being done.

39HER HONOUR:  Yes. 

40MS MORAN:  If I can just make a comment, in that the CCO assessment report seems to regard her as a medium risk of re-offending and I'm completely baffled as to how they've arrived at that conclusion.

41HER HONOUR:  It is a technical box ticking exercise.

42MS MORAN:  Even so, it doesn't seem like it's correct, so ‑ ‑ ‑

43HER HONOUR:  It does seem very strange.  Yes.  Well I haven't taken any notice of it.

44MS MORAN:  Excellent, thank you. 

45HER HONOUR:  Thank you.  I think that's everything now.  Thank you.

46MS MORAN:  Yes, thank you very much, Your Honour. 

47HER HONOUR:  Adjourn the court please.          

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