Director of Public Prosecutions v Yildrim

ghhm

IN THE COUNTY COURT OF VICTORIA

Revised

Not restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No CR-17-00552
Indictment No G13103930

DIRECTOR OF PUBLIC PROSECUTIONS

v

GURKAN YILDRIM

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2017
DATE OF SENTENCE:	13 November 2017
CASE MAY BE CITED AS:	DPP v Yildrim
MEDIUM NEUTRAL CITATION:	[2017] VCC 1668

REASONS FOR SENTENCE

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Catchwords: Theft (of vehicle), Conduct endangering life. Conduct endangering persons, criminal damage x 2, 4 summary offences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. Dunham	Office of Public Prosecutions
For the Accused	Mr J. McGarvie	Stary Norton Halphen

HIS HONOUR:

Gurkan Yildrim, last week you pleaded guilty to five charges that were laid on the indictment filed in this court, being one charge of theft of a car, one charge of conduct endangering life, two charges of criminal damage and one charge of conduct endangering serious injury. You have also pleaded guilty to four summary matters, being one charge of dangerous driving, one charge of driving whilst suspended, one charge of failing to stop and one charge of offending whilst on bail.

You have admitted a short prior criminal history. There are also a number of offences which have been dealt with subsequently. Your counsel told me about that April 2017 Magistrates’ Court appearance.

At the time of committing the offences for which I must pass sentence, you were on bail and also on a community corrections order. You were also suspended from driving. You had no business at all being behind the steering wheel of any car.

You were born on 14 November 1991 and accordingly, you turn 26 years old tomorrow.

The maximum penalties are correctly set out in the prosecution summary. I see no need to repeat them.

Facts

The prosecutor, Mr Goodenough, opened this matter to me last week, in accordance with what was obviously an agreed written prosecution opening, dated

5 November 2017. It was a comprehensive opening and it went into much detail. No issue has been taken with any aspect of the opening. As it was an agreed summary, I do not see any need to describe the full factual setting in these, my sentencing reasons. I will not stray beyond the agreed facts, other than in one area, where it has actually a mitigatory effect and that is, in the suggestion of a phone call having been made from a phone box by you to the police, seeking to alert the police to the location of the stolen Mercedes and hence, the baby. There is reference to such a phone call at p.82 of the depositions, though you are not identified in the statement as the caller.

In addition to reading the opening, the prosecutor placed before me a selection of CCTV footage, which was played on the plea and marked as Exhibit B.

I will still say something briefly about this offending. It was an extraordinary incident. Your victims will never forget this day, ever. For a mother, or a parent, it was the stuff of nightmares. It started with an audacious theft of a car, one which was left unattended with the engine running at the time of school collection, with the female owner in the vicinity of the vehicle, talking to other mothers. There was nothing unusual or untoward about any of that. She had left the car running, as within she had her six month old baby asleep. You pulled up in that street in a Toyota. You were the driver of that Toyota. You should not have been driving at all, as your licence had been suspended by operation of the demerit point system. You stopped and got out. You were very clearly checking out the situation and you decided to steal the car. Though you looked at the Mercedes, both from your seated position in the Toyota and whilst on foot, you clearly had not noticed the presence of the baby. I am very confident that the furthest thing from your mind was the abduction of a child and you do not fall to be sentenced for that style of crime at all. You were intent upon stealing a car.

However, this was not some theft under cover of darkness. It was one where detection was absolutely certain. It was audacious. The issue was if you could get away, not whether your theft would be detected. It was obvious it would be detected, after all the car engine was on and the owner was very clearly nearby. It was school collection time. Anyway in you got. The mother and her stunned friends ran swiftly to the car and tried to stop you, banging on the windows and screaming out all the time as they did that there was a baby within. The brave friend of the mother then threw herself up onto the bonnet, so desperate was the predicament in her eyes. You reversed so that you could then drive forwards along the street and make good your escape. The woman was high up on the bonnet, on all fours at one point and then in a lying position, holding on for dear life.

Another motorist coming from the other direction saw the scene, heard the screaming and something said about a baby and then tried to block your departure by moving his car in the street. You drove around on the wrong side of the road and hit that car, damaging both it and the car that you were driving. The impact dislodged the unfortunate woman from the bonnet onto the ground and you left the scene. The Toyota that you had arrived in was trailing along to your left.

This was absolute pandemonium. At that scene there was the distressed mother. On the CCTV footage, we can see her limping along, trailing her vehicle, wailing as it left. Of course the loss of the vehicle was the least of her concerns. It was the cargo that prompted her distress. Her baby was gone. How would she have known that though this was an intentional taking of the car, it was an accidental taking of her child? She and I suspect any parent would have thought the very worst. On the CCTV footage, we see her fall to the ground in distress. The brave woman who had vaulted onto the bonnet had been dislodged further up the street, as I have said, but very luckily for you, she was not badly hurt. Police were summoned.

Meanwhile, you were piloting the stolen car. There is just no question of your intending to take the baby or setting out to do such a thing. Plainly you did not. There was

a very large amount of noise at the scene and much of it related to the presence within of the baby. Did you hear any of the detail of it? I cannot be satisfied that you did, not in terms of the detail and it is easily possible that the adrenaline has kicked in as you executed the theft. What you were trying to do, was to get away with that car and there were people seemingly trying to stop you doing that and yelling out. There was noise and you escaped. However, once you had left the immediate vicinity, it really cannot have taken you too long to notice the baby. You, no doubt, noticed pretty swiftly that there was a most unwelcome and unexpected cargo, being the baby in the car seat. This foiled whatever plans you had for this stolen vehicle.

You drove a relatively short distance to nearby Brunswick. You parked the car down an alley and at least then had the decency to approach a pedestrian and spell out your dilemma and the location of the car. You then left, but the baby was, at that stage, in no way secure. The pedestrian could so easily have ignored you and gone on their way, as initially he had intended to. As it happens, he investigated and found the child. There is also reference to a call being received by 000 and you instruct your counsel and you told Mr Newton and the Crown do not dispute that you made that 000 call from a phone box in Reynard Street to ensure that the police found the car and the baby.

I act on that basis. So you have taken those steps to mitigate the risk. That is significant when coming to assess the level of seriousness of Charge 5, that is the conduct endangering serious injury and it is relevant for other purposes as well, as

I will shortly discuss.

Once the car was located, police were notified, they attended at the scene of the abandoned car, the crying child was taken into care and the calamitous event was then at an end. It was very serious, as your counsel correctly concedes.

I said on the plea that once you had decided to drive off with the woman on the bonnet, this all ended about as well as it could. By saying that, I was not downplaying the seriousness of the event, it was unmistakably serious. What I meant was, that there could so easily have been a tragic ending. For instance, had the woman on the car been seriously injured or worse, not remote possibilities at all, given the height of the bonnet from which she fell and the mechanism of her falling being the collision with the other vehicle. Not to mention the risk posed by other vehicles and by the one that you were in fact driving. This could have ended horribly, with the woman on the bonnet landing badly on the road, or falling down in front of the vehicle you were driving, or the one you impacted. You have, after all, admitted conduct endangering her life. This could so easily have landed you in the dock in the Supreme Court, facing

a charge of manslaughter. Anyway, it did not and as harrowing as the ordeal was for the mother and friends, at least it had a swift and happy ending. No one was badly hurt and the baby and the car recovered within about half an hour or so.

An obvious feature of aggravation is that you were on bail at the time for a variety of offences, including dishonesty offences and offending whilst on bail. Additionally, you were on a community corrections order as well, one imposed in September 2016 for

a number of charges, including car theft. You were arrested on 11 November and the really the less said about your interview, probably the better. You were arrogant, cocky and dismissive of the police, defiantly proclaiming your innocence and the certainty of the charges being kicked out. You challenged the photographic evidence that was put to you. Well the photographic evidence was absolutely conclusive. It was an overwhelming case.

But your attitude to the police is not a matter of aggravation. You had at least the good sense to plead guilty and at the earliest opportunity and you have been in custody since, part of that time on remand for these matters and the balance since 3 April of this year, undergoing sentence for a large number of other charges, including the breach of the community corrections order and the re-sentencing exercise. That was all dealt with on that day in the Magistrates’ Court at Melbourne on 3 April.

Impact

There are no victim impact statements in this case. The various victims have chosen not to make them. One would hardly need them. You are a father yourself. Place yourself, or place your wife for that matter, in the mother’s position at the scene and not just at the scene, but also for the half hour or so until the child was recovered, when they had no idea what had become of the child. What a horrific event for a mother and for the friend trying to save the infant. They will never forget this day for as long as they live, though again, I make plain that as terrifying as the event was from their perspective, you do not fall to be sentenced for any offence relating to any intentional taking of the child. You had no such intention at all. That is very obvious. In any event, I take into account the impact of these crimes.

Mitigation

Your counsel, Ms Franjic, raised a number of matters in mitigation in an excellent plea that was conducted on your behalf. She relied chiefly upon:

· Your early guilty plea;

· The presence of remorse;

· Your relative youth;

· An increased custodial burden;

· The principle of totality and the way your time in custody to date might be reckoned as actual pre-sentence detention;

· She relied upon a report from Mr Newton, a short letter from your family doctor, as well as a reference from your father and one from your former employer.

Though no adjective was employed by your counsel to describe your future prospects, she was suggesting that you had a good employment history, very decent family support, some insight into your issues and that you hence had reasonable prospects of rehabilitation.

Your counsel conceded the seriousness of the offending, but argued that you had spent already a sizeable time in custody and that it would be open to sentence you by way of a community corrections order, in conjunction with a term of imprisonment.

Prosecution

Mr Goodenough, who appeared on behalf of the Director of Public Prosecutions of this State, made submissions as to the seriousness of the offending, particularly the car theft and the conduct endangering life and challenged the availability of such

a combination disposition. The Director called for terms of imprisonment, a total effective sentence and the fixing of a non-parole period.

Background

I turn now to your background. I believe I can do so quite briefly, as I have no reason not to accept the personal family background and the related history that has been placed before me in the plea conducted by your counsel. Your background is referred to broadly in the written outline prepared by your counsel and marked as Exhibit 1. It is also referred to in the lengthy report from Mr Newton and also your father’s letter.

You were born 14 November 1991 and you are now almost 26 years of age. As I have said earlier, you turn 26 tomorrow. It follows then that you were almost 25 years old when you committed these offences. You were one of three children born in Australia of hardworking Turkish parents. You grew up in Coburg. It would seem that you found transition into secondary school quite difficult. You were disruptive at school, but you completed Year 12 eventually in 2009. To your credit, you obtained an apprenticeship as an electrician and you completed that in 2013 and then worked in that trade, both in Australia and for a short time, overseas. There is the excellent letter from your former employer, the person to whom you had been apprenticed. He speaks glowingly of you.

In the lead-up to the offending, probably from as early as 2015, employment had been patchy, at best. The business that you had established had fallen apart. You had tested and strained various relationships, for instance with your wife, your brother and other family members.

It is clear enough that drug use has been very problematic for a number of years and became far more problematic from 2015 onwards. Some of the matters dealt with in April of this year related to threats to kill your brother. He was challenging you in April 2015 about your drug use. You threatened to kill him in April and again in December 2015.

I am told that you were very much affected by the August 2015 death overseas of

a very close school friend, but it is obvious, given the chronology I have just mentioned, that things had started to go very much downhill prior to that event. Drug use increased and by 2016, was, it would seem, totally out of control. Drug use can and does sometimes lead into significant mental health issues. Sometimes it is in the other direction with mental health issues leading to or prompting drug use. Sometimes it is a bit of each.

Mr Newton, who has assessed you, believes your drug use, in part flows, from some unresolved personal and family issues that he describes and in part has a connection to a depressive disorder that had developed. I have no reason to doubt that, though it is still your choice to take drugs.

From the broader materials placed before me, it is clear that you have been, in the past, a decent person and a good worker. You were clearly out of control in 2016 and drugs were damaging almost every facet of your life. You seemingly recognised that to some degree, as you were seeking out some treatment for depression in the

lead-up to the offending, with a visit to a local doctor on 18 October 2016. There is a letter from Dr Ahmad, Exhibit 4 on the plea. That was only weeks before the offending.

You do have a criminal record. You appeared at the Broadmeadows Magistrates' Court on 2 September 2016, only two months before this offending. You were dealt with on a consolidation of offences, which included car theft, possession of drugs and possession of an imitation firearm. You were placed on a community corrections order and with judicial monitoring to take place. So you committed the offences for which

I must pass sentence whilst on that order and also whilst on bail for other offences. Those other offences have been dealt with subsequently on 3 April 2017 and on

a large consolidation listed that day, you received 12 months' imprisonment, with

a non-parole period of five months. You also have two prior appearances for driving whilst suspended. You told Mr Newton that you have been doing some courses whilst in custody and that you have remained drug-free. You have received some treatment and some medication.

There are the references, the reference from your father and from your past employer, which I have mentioned and I do take them into account. This is the first time you have been in custody and it has been for a sizeable period already. It has not been easy and one reason it has not, is that you have had no contact at all with your daughter, who is shortly turning two. I am told that that is owing to the perception of the prison authorities that one of these charges before me had some relationship or connection to a child. Well it seems to me at least, that the incidental presence of a child in the car which you stole, really has nothing at all to do with the appropriateness of you seeing your own daughter, or her being brought in to visit you. After all, as I have said, you were intent upon stealing the car, not the child. So if that is the only impediment to seeing your child, then the prohibition on visits should clearly be lifted, in my judgment. These remarks can be made available to the relevant authorities.

It is obvious from the family entourage at court that you have family support. Your parents and wife have visited you in custody. You know the truth, that is, that you have burnt many important relationships over the last couple of years. What you are now doing, is trying to mend those various strained relationships. There is still obviously some way to go, especially with your siblings. You look forward to the day of your ultimate release from custody and you plan, at this stage, to move back in with your parents. You hope to reconcile with your wife, you wish to be employed in your past trade and your past employer speaks of the existence of a job upon your release.

Guilty plea

I turn then to consider some of the submissions made on your behalf. The first of those is your guilty plea. You have pleaded guilty and you have done that at the earliest stage. That is a significant mitigatory matter. Despite the foolish and arrogant bluster in your police interview, you have then taken early responsibility for your offending. That is important. There is a utilitarian value which must be recognised when a person pleads guilty and at an early stage. Witnesses have been spared the experience of giving evidence. It can be a harrowing experience and no doubt it would have been for the mother and her friend to relive the event. The community has also been saved the time, the expense and the effort associated with the conduct of

a committal hearing in the Magistrates’ Court and for that matter, a trial up in this court. You have facilitated the course of justice and I must reward you for your decision to plead guilty and at the early stage which you did. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.

Remorse

I turn to the issue of remorse. If I was basing this conclusion purely on your interview with police, well, it would be an easy enough business to conclude that you have no remorse at all. However, the interview was in November of last year, very shortly after the event and in a setting where you were trying to avoid liability and were in the grip of drugs. You were also probably panicking. A lot has happened since. Your earliest of guilty pleas for one.

I must not lose sight of the fact that even as you conducted yourself in that way in the police interview, you had, on the day of the crimes, taken the steps that you had actually taken in the immediate aftermath of the theft, to alert a member of the public to the position of the baby. That was a step taken at some risk to yourself, as you were, after all, disclosing that you were the thief of that car. You also made the 000 call.

This car theft went horribly wrong for you, owing to the presence of the baby in the car. Well, you had a child yourself. You were not setting out to take the child and once you realised that you had, you sought to bring the matter to an end, abandoning the car, but endeavouring to alert a member of the public (and the police) to the location of the baby. I can add to that your earliest of guilty pleas and the other material in the report of Mr Newton, suggesting that you are actually remorseful.

There was a lot of publicity in relation to this matter at the time of the event and indeed even the other day after the plea was conducted. You have brought shame upon your family and upon yourself. I have also the other material touching upon your past good character. I am certainly prepared to find the presence of remorse here and I do take that into account in mitigation.

Prospects

What then are your prospects of rehabilitation? I have set out the chronology. It is obvious that you have done yourself no favours offending as you did whilst on bail, whilst on a community corrections order and in the period of suspension from driving. There are the various other charges dealt with on the consolidation in April this year, offences spanning a period of about a year, with varying degrees of seriousness, as the charges and the summaries make plain enough. I have your long-term issues with drugs, with significant escalation in the lead-up to this offending. I have the brazen nature of the car theft that I must deal with. I must have at least some reservations about your future prospects. Mr Newton does, at least in terms of the risk of future drug use.

You are currently in a period of what he describes as enforced abstinence. Mr Newton suggests that you have a relatively high risk of relapse into drug use upon release and an increased chance of future psychotic episodes, should you relapse. On the other hand though, the criminal history is not a long one, the community corrections order was in its infancy, you still have strong family support and you have been doing pretty well in custody. You are still a young man. You have a good employment record and likely will have a job in the future and a home to go to. You have obtained treatment and some medication whilst in prison and you are ashamed of your conduct. I have no doubt about that.

You have been to gaol for the first time and you have been there for over a year now, on remand initially and then by way of sentence. That time in custody is, as your counsel suggests, something of a circuit breaker and an enforced detoxification period in your case. You were out of control back in November 2016 and a good deal earlier. You are in a far better frame of mind now. Mr Newton suggests you are displaying some real insight into the need for counselling and treatment, though he, I think, sensibly concedes that it is early days here.

Though the offences were undoubtedly serious, it is obvious that they took very much an unplanned twist, owing to the unexpected presence of the baby and the perfectly understandable and desperate steps taken by the friend of the mother to stop the removal of the child. That then combined with your desire to get away. So panic was a significant driver here. Your panic.

I would hope and expect that the process of being arrested and charged and then imprisoned for the first time, as you were in November of last year and then brought before the courts for these matters and the other matters dealt with in April of this year, this would have had a sizeable impact in deterring you from committing crimes in the future. So too the service of the sentences which I will soon pronounce.

I assess your prospects of rehabilitation as really being quite decent. There has been a period of perhaps close to two years or so where you have very badly let yourself down. Prior to that, you were doing well and the hope is that you can rise up again. To achieve that return to what you have been in the past, that is, a functioning and useful member of the community, you really must desist totally from drug use and obtain treatment and counselling, as detailed in the report of Mr Newton. If you continue to use drugs, your prospects will be very poor indeed, as surely the last couple of years would disclose to you. Over the year or two leading in to this offending, your use of drugs and decisions taken in that period, has greatly damaged your life. They have brought you to your knees, they have had a role in leading you to prison for offending and along the way, you have destroyed your business and destroyed or damaged many relationships. Well I think you do have decent prospects of returning to the life you had been leading prior to the downturn, but it will take some effort on your behalf. You must never return to drug use.

Mr Newton

I have mentioned already the report of Mr Newton on a number of occasions and

I have already mentioned my taking into account many aspects of that report. I do take into account the report generally and in a manner consistent with the way

Ms Franjic suggested that I should. I see no particular need to set out great slabs of that report. I have read it again since the plea. Unlike many reports from consultant forensic psychologists, this one actually strikes me as being a sensible and appropriately guarded report. I act on it. Your counsel made very clear that the report was in no way being relied upon as enlivening any of the principles from the Court of Appeal decision of Verdins v R, that in fact that those principles were not relied upon at all in this case. I accept that submission. As I have said already, the report is still of value to me.

Indeed, if I have not made it plain, I better make it plain. I take into account all of the materials that have been placed before me by both parties, including the documents that have been tendered, as well as the oral and the written submissions.

Increased Burden

I have already mentioned the issue with your daughter and the inability for her to be brought in to visit you. It follows then that you have not seen her for over a year. She is still under the age of two. You are in custody for the first time. That is hard enough, I am sure. The absence of visits has undoubtedly increased your custodial burden to date and I do take that into account. I am talking about the absence of visits of your daughter. Already a year has passed without you setting eyes on your daughter. The year in the life of a two year old is a very long time. It is also a long time for the parent of a toddler to be absent with all manner of milestones that have come and gone that have been missed by you. One would hope that this will be rectified with at least visits being sanctioned, but I have no sense of that being any certainty at this point, so I take into account that increased burden into the future as well.

The Offences

As to the offences themselves, your counsel conceded that this was serious offending and that concession was undoubtedly correct. It is obvious enough that once in this street, you had some intentions to steal a car if you could. You were suspended from driving, but were the person driving to this scene. What do you not get about the effect of a licence suspension? It is pretty straightforward. You had no right to even drive

a car at all, any car, much less steal one and drive it.

The CCTV footage makes abundantly clear that there was premeditation in the

lead-up to the theft of the car. The car you were driving, at one point, paused at the Mercedes, proceeded forward and was then parked. It did not break down. It stopped. You were the driver. You stopped that car. You got out. You exited and walked back along the street to a position close to the Mercedes. You were clearly examining the car and your prospects of taking it. No doubt ascertaining in those movements that the engine was on, that the car was unoccupied and the whereabouts, or likely whereabouts of the owners. You were weighing up whether you could steal it.

So the car theft was an audacious and brazen one. As I said earlier in these reasons, you were not a thief, sneaking around at night, or in a lonely, isolated setting, or any setting where detection could be avoided. This car was running and that was the attraction. It was an relatively late model Mercedes, obviously an expensive vehicle. Its owners were clearly in the immediate vicinity. It was broad daylight at a school pick up. You have sized the situation up and you have determined to commit a very serious instance of car theft, one where detection was guaranteed to be virtually instantaneous and where your hope was to be able to get in and drive away unhindered. There was a very sizeable risk that the owner would do as she did, that is, try to intervene. That is exactly what occurred.

Now that set in train the other offending and there is undoubtedly an aspect of panic and the hope of avoiding detection, leading into the other charges on this indictment. You could not have contemplated the brave person launching themselves onto the bonnet in the way that she did and I accept that, at that stage, you were clearly unaware of the presence of the baby in the car. However, you could hardly be unaware of the presence of the woman on the bonnet. There she was right in front of you. You were the driver, she was directly in front of you. You would have probably assumed incorrectly that she was the owner of the car, trying to stop the theft of the car. You had not, in any way, processed the real reason for that desperate action, namely the presence of a baby behind you. Things were moving very swiftly. You did not have any time for any mature consideration or reflection. You just acted.

The fact is you had two options. Each involved stopping the car there and then:- Stopping the car, exiting and either handing yourself in, or if not, making good your escape on foot, cutting your losses and running. They were Options 1 or 2. There was no sensible third option, but you created a third option. It was an unthinkable option actually. Making good the theft and trying to flee in the car with the woman on the bonnet and in doing so, exposing that woman to the danger of death and that is what you did. So you chose very poorly indeed.

To drive in the way that you did and then strike the other car trying to block your departure, was really quite incredible conduct. I believe it was a serious example of conduct endangering life, though it was not of a long duration or distance and the speeds were not in any way extreme. They were relatively controlled, as the CCTV footage depicts. But it still endangered her life. The fact is, you needed her to fall from the car, to make good your escape and that is exactly what happened. What control did you have over the manner of her leaving the bonnet? None and she had none, as the CCTV footage depicts. She was on a moving vehicle and fell from it. She fell owing to the impact with the other vehicle and fell a fair distance onto the road. You were driving a sizeable car. Had she fallen forwards from the bonnet in front of the car, as she so easily could have, well do you really need me to tell you how disastrous this could have been for her and hence for you? The car you hit was a sizeable vehicle as well. The Toyota that you had driven to the scene was also travelling on the same road, just behind you to the left. As I have said earlier in these remarks, this incident really could have ended terribly.

Once you got away from the immediate scene, you had then the problem of what to do. That problem arose because of the baby in the back of the car. The conduct endangering serious injury relating to the leaving of the child, is just nowhere near as serious as the conduct endangering life, in my judgment. At least with the child, you parked the car and alerted the stranger and also the police. As audacious and brazen as the theft was, there was actually an inherent decency in taking those acts, acts which when one reflects on them, were designed to mitigate the risk to the baby and in fact placed you, the offender, at some risk. You were not happy just abandoning the baby in the car. What you did not do was wait to ensure that the stranger responded appropriately, but at least you also made the 000 call.

Your counsel accepted that there was a level of premeditation in the car theft, but argued as to the spontaneous nature of the other offending. I accept that beyond the car theft, there was spontaneous conduct. Having said that though, it could hardly be that surprising to you that someone might try to thwart the theft. People just do not wave away their cars. If unsuccessful, the next step inevitably would have been a call to 000 and the reporting of the registration number and the make and the model and the area and in such a setting, it is not that difficult to contemplate the possibility of police interception or attempted interception. But I really do not need to consider those sorts of matters.

The claim of spontaneity as to the conduct endangering life charge, though I accept it, can be met with the response, "There are very many such offences which are produced by panic or by flight." Very often conduct endangering life or serious injury offences are spontaneous situations on the road, in that there is an attempted police interception, followed by a pursuit, risks being taken by a driver in the heat of the moment, which are hard to process and quantify by the driver. Well here you were, fixed with the clear view of the danger posed, not some gamble of running a red light or going through a stop sign, where there may or may not be traffic approaching. This woman was right in front of your eyes on the bonnet of the car that you were driving and you chose to drive off and so engaged in this serious offence. I regard Charge 2, that is the conduct endangering life, as by far the most serious of the charges on the indictment and a serious example of the offence. The car theft itself was also, in my judgment, a serious instance of that offence, given the setting and your being on both a community corrections order and on bail.

Purposes

I turn then to consider the purposes of sentencing. I have to consider a number of purposes of sentencing. I must consider your rehabilitation and I do, I have commented on those prospects. I think you do have, at least, decent prospects. Your relative youth has been raised by counsel and it is not unimportant. Your counsel has referred to the case of Mills, though accepts that it has to be read in light of your actual age. You are no teenager and nor are you a first offender. Still, you are quite young and you have no sizeable criminal record, so quite naturally there is a greater regard paid to rehabilitation of such a person.

I am also required to punish you. That is a significant sentencing purpose in this case. I must denounce your conduct and I do. Again, that is important. This was pretty outrageous conduct on your behalf.

There are other purposes of sentencing and one such purpose is the need for this court to seek to deter you from offending in the future. I must try to deter you from future offending. I must give that principle of specific deterrence some weight in my sentencing task. The chronology of offending, that is, whilst being on bail, and on

a community corrections order and in the period of a suspension, spell out that need. I also must give some weight to community protection, though people must not lose sight of the fact, I am not dealing with you in any way for kidnapping or child stealing. They are not the charges and they were not your intent. Community protection would be a much stronger element of sentencing, had this been some exercise to take the child, but it so obviously was not.

Nor in considering specific deterrence or community protection, can I ignore your age and your relative lack of criminal history. For most of your life, you have been

a productive member of society and you may very well be again in the future. So

I believe that there can be some moderation of those purposes, but of course the chronology cannot be ignored.

As to general deterrence, well that is an important purpose of sentencing in this case. The court is required to send a loud and clear message to other individuals in the community, those who might be minded to commit this sort of serious offending, that is, risky driving of such a magnitude as to lead to some danger of death. Well it has to be strongly denounced and deterred. So too premeditated acts of car theft. The message must be sent from the courts to the broader members of the public.

I must and do pay regard to current sentencing practices. Every case and every offender is very different. I have looked at the overview of cases in the Judicial College of Victoria manual. I have looked at the case of Rivette [2017] VSCA 150, a decision of the Court of Appeal in 2017. I accept that it is a far more serious example of conduct endangering life, committed by an older offender with a substantially worse criminal history. It is not some precedent as to sentence, though I note the similarity, in terms of the theft of an unoccupied running vehicle and the conduct endangering flowing from the owner leaping onto the bonnet of the vehicle. There are those parallels, but there they end. The conduct in that other case was startling, with a lengthy period of high speed and erratic driving, driving actually designed to dislodge the owner, who was clinging on for dear life for close to half an hour. The fact is other cases are not sentencing precedents. I have also looked at the SACStat online tool for the crime of conduct endangering life. But that is all they are, they are statistics. They do not govern the exercise. At the end of the day, I must pass an appropriate sentence in your case.

Boulton

I have taken into account all of the materials placed before me and the submissions made by you counsel, who conducted an excellent plea on your behalf. She conceded the inevitability of a prison term, but argued that it would be open to ultimately release you from prison, sometime in the future, on a suitably conditioned community corrections order. The prosecution say that such a combined disposition is not open, such is the seriousness of the offending. So I have, as one often does, each party making submissions as to the available penalty and the court has to exercise its own discretion.

I was taken by Ms Franjic to the case of Boulton, a decision of our Court of Appeal from late-2014. How many times have I been taken to that case since? I have lost count, but it surfaces in more pleas than it does not. Well, there has been much water under the bridge since that decision in December 2014, with enough criticism by members of the Court of Appeal as to the way in which the courts have imposed these orders. See for instance the case of Basic. Also the case of Rivette that I have mentioned previously. There has been legislative amendment to alter and to limit this disposition.

There is nothing in the case of Boulton, obliging a sentencing judge to actually reach a particular conclusion in a particular case, as the Court of Appeal made plain enough in the case of Boulton itself and in many cases since. They have said more than once that these community corrections order are not some "get out of gaol free" card. They are not.

It is obvious enough that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order, even one imposed in combination with a prison term.

It is not my job as a judge to use ploys or contrivances to keep open the community corrections order disposition. It Is not my job as a judge to jump ahead and to select the outcome and then somehow try to work my way to that outcome. What I have to do, is pass appropriate sentences.

One thing remains constant in this case and every other case. Locking someone up is always a matter of last resort for any court. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order.

It is accepted by your counsel that a community corrections order on its own, cannot meet all the needs of sentencing, that terms of imprisonment are obviously required and I agree. Ms Franjic argued though for a term of imprisonment, with release onto a community corrections order.

I just do not believe that such a disposition is open to me. Such a disposition would not achieve all the purposes of sentencing, including the need to punish, to denounce and to deter. I have absolutely no doubt at all that it is not open to me to structure sentences such that a community corrections order is even, as a matter of law, theoretically available. Your crimes are far too serious. One can almost always see some advantages in a community corrections order, including that unlike the fixing of a non-parole period, release from prison onto a community corrections order offers

a guaranteed release mechanism. But I am not going to fix upon prison and release on a community corrections order as the appropriate disposition and then somehow plot a course to such an outcome and engage in ploys and contrivances to maintain the availability of that disposition. It is, in my view, simply not available, owing to the nature of your crimes and my need to impose adequate and appropriate sentences of imprisonment.

Totality

I have taken into account the principle of totality of sentence. That includes the fact that you have been continuously in custody since 11 November 2016, although only the period from 11 November 2016 to 2 April, is strict pre-sentence detention. I do not accept for one moment the suggestion that the period that you have been undergoing sentence is to be declared as s.18 pre-sentence detention. It is not and nor do I believe the case cited, that of Younger, stands for that proposition. If though I am wrong and that case happens to stand for that proposition, then I simply will not follow it. There have been many other cases from the Court of Appeal standing against any acceptance of that proposition. See the cases of Wheldon [2011] VSCA 83 and also Buddle [2014] VSCA 232.

It does not make the period that you have been serving the sentence unimportant or irrelevant. Of course it is important, of course it is relevant. And of course I can have regard to it and I do, in terms of totality. But it is not pre-sentence detention which can be declared under the Act. You have been serving the sentence imposed in the Magistrates’ Court for a variety of criminal conduct, some of it quite serious. It was serious enough, after all, for a court to send you to prison for 12 months and to fix

a non-parole period of five months. I seriously query the wisdom of having those matters dealt with in advance of the matters currently before this court, but that is what has happened.

Though one cannot ever really know what the Adult Parole Board would do, I think it is reasonable to believe that you have probably served a period beyond that five month non-parole period imposed, owing to the existence of these matters before me and the impracticality of their considering release on parole in such a setting as that. I am sure there is that loss of opportunity to and I do take into account. I take the whole period you have been in custody into account and it is relevant in many ways, including but not limited to the deterrent effect upon you and as enhancing your prospects of rehabilitation. It has been a useful circuit breaker, as described by your counsel, with enforced abstinence and it will enhance your prospects upon your ultimate release into the community.

I must consider whether the effect of the sentences that I will soon pronounce is just and appropriate and commensurate with your overall criminality. I have engaged in

a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you. There must be some cumulation as between some of the sentences. That is obvious enough.

Though there are a number of offences with differing elements, I cannot lose sight of the fact that it is a tightly grouped set of offences, starting out as a car theft and then exploding really from there as a consequence of unplanned and or spontaneous or reactive actions. Though there are separate offences with separate impacts, there is still, in my view, a legitimate claim for sizeable concurrency. The dangerous driving summary offence charge is very closely related indeed to some of the charged conduct on the indictment, though not totally the same in its scope. The criminal damage charges on the indictment are, in a way, embraced in the conduct endangering life, but in any event, they are a product of the same desire to escape the scene. Likewise the fail to stop. Of course you were, at the time, a suspended driver and you were, at the time, on bail.

All right, I am now going to pass sentence, Mr Yildrim. I wonder if you would stand up pleas.

Sentence

On Charge 1, that is the theft of the motor vehicle, I convict and sentence you to

18 months' imprisonment.

On Charge 2, conduct endangering life, you are convicted and sentenced to two years' and nine months' imprisonment. (33 months)

On Charge 3 and 4, they are the charges of criminal damage, in each case I convict and sentence you to two months' imprisonment.

On the final charge on the indictment, that is, conduct endangering serious injury, you are convicted and sentenced to eight months' imprisonment.

Summary offences

I turn to the summary matters. On the summary offence of committing an offence on bail, I convict and sentence you to seven days' imprisonment.

On the charge of driving whilst suspended, I convict and sentence you to 14 days' imprisonment.

On the fail to stop, you are convicted and sentenced to 14 days' imprisonment.

On the dangerous driving, you are convicted and sentenced to seven days' imprisonment

Cumulation

The base sentence is therefore the 33 months, or two years and nine months imposed on Charge 2. I direct that six months of the sentence imposed on Charge 1 and two months of the sentence imposed on Charge 5, are to be served cumulatively upon the base sentence and upon each other. All the other sentences will be served concurrently.

For the summary offence of committing an offence on bail, there is a presumption of cumulation set up by s.16(3C) of the Sentencing Act 1991. That is, cumulation, unless otherwise directed.

The offending on bail is the commission of the indictment charges and so there is

a real overlap here. I do otherwise direct and so that seven days is also taking effect concurrently.

Total effective sentence

What does this all mean then to you? This results in a total effective sentence of

41 months' imprisonment, or three years' and five months' imprisonment.

Non-parole period

I direct that you serve a period of two years before becoming eligible for release on parole.

Section 18

You have spent a period of 143 days by way of pre-sentence detention on these matters and that period is declared as having been served already under this sentence. It will be noted in the record.

Existing sentence

These sentences that I have pronounced will be served concurrently with your existing sentence.

Grab a seat, if you would.

Licence orders

I am going to make some orders against your licence.

Car theft

On the car theft charge, that is Charge 1 on the indictment, all licences are cancelled and you are disqualified from driving in this State for a period of six months from today's date. I make the same order in relation to the summary offence of fail to stop and also the summary offence of dangerous driving. In each case, all licences are cancelled and you are disqualified from driving from six months from today's date.

Conduct endangering life

This leaves the conduct endangering life charge. In that case there is no mandatory provision at play at all. However, I have no doubt that I must make an order against your licence and that it must have some practical impact upon you. You are going to prison for a substantial period of time. I have to proceed on the footing that you will serve every day of the sentences that I have pronounced.

I cannot speculate about your prospects of being released on parole. That is in the hands of the Adult Parole Board. Whenever you are released and as I say, that is not up to me, you will need to establish yourself back in the community. You will hopefully go back into the workforce, likely picking up your past trade. Obviously the absence of a licence in your trade would be a matter of some disadvantage. I am mindful of that fact and I balance up these issues of your rehabilitation with matters of community protection and punishment. There is something of a tension between your rehabilitation on the one hand, and punishing you and protecting the community on the other.

But given the nature of the conduct endangering life charge, I believe that the licence order must have a real effect upon you, but one that I can actually measure and the only sensible way it can, is if it is fixed by way of some future defined event. Otherwise, of course, you would serve the disqualification whilst in prison and it would have no actual or practical impact upon you at all. Either that, or if it was not linked to some future event, it might actually be counter-productive to your rehabilitation and stretch a very large period past your possible earliest release date. I do not believe that either of those outcome is appropriate. So I model the form of my order on that form discussed in the cases, including the case of Tran [2002] 4 VR 457 and Caldwell [2004] 8 VR 1.

Pursuant to s.89A of the Sentencing Act, on Charge 2, I cancel all licences to drive and disqualify you from obtaining another permit, or from driving in this State. My order will commence today. You are disqualified from obtaining another permit or from driving in this State, effective from today’s date and ending six months after you are first released from custody, whether on parole or the expiry of the sentence. What that means, is that there will be an order against your licence in existence upon your release from custody, whenever that is, for a six month period.

Further, pursuant to s.89C of the Sentencing Act 1991, I find that this offence was committed whilst under the influence of a drug of dependence, which contributed to the offence. You told Mr Newton as much.

6AAA

Had you been found guilty of these matters following a "not guilty" plea and a jury trial, I would have imposed a longer sentence. I would have sent you to prison for five and a half years. I would have fixed a non-parole period of three years and ten months. That is to be noted in the records of the court.

Let me just see if there's anything I have overlooked. Are there any other ancillary orders that I am required to make at all?

MS DUNHAM: No, Your Honour.

HIS HONOUR: All right. And are each of you - you know, I have sat where you have sat, obviously, not for some time now, but I have provided the various individual sentences and the extent of the cumulation. Are you each confident that firstly, you got the sentences and that the mathematics is correct?

MS DUNHAM: Yes, Your Honour.

MR McGARVIE: Yes.

HIS HONOUR: All right. I will sign that order then in a moment.

Mr McGarvie, your client has been in custody, so I do not think there is any particular need for any sort of custody management notations, is there?

MR McGARVIE: Look, I think Your Honour's addressed it, in the sense that you're making your sentencing remarks available in reference to the existing condition, that being that he can't see his daughter.

HIS HONOUR: Yes.

MR McGARVIE: Otherwise there's nothing else.

HIS HONOUR: Well I mean, I will make that - well I will make that available to everyone I normally make it available to. My associate will no doubt be sending it off to the Adult Parole Board, but is there anyone in particular that you want me to send those remarks to, or not?

MR McGARVIE: No one in particular, Your Honour.

HIS HONOUR: There may be Sentence Management or something like that. Anyway, look, you are aware of what I have said, your client is aware of what I have said. I will send them wherever you want me to send them, but at this stage, I will send them to the Adult Parole Board and also to Sentence Management - - -

MR McGARVIE: I think that's sufficient for present purposes.

HIS HONOUR: Yes, all right. No other matters then from you?

MR McGARVIE: No further matters, Your Honour.

HIS HONOUR: I will sign that order then, thank you.

Yes, all right. Look I have signed that order then, so - that completes the matter then. Will you go and see your client in custody, Mr McGarvie, or not?

MR McGARVIE: Yes.

HIS HONOUR: Yes, all right. All right, well Mr Yildrim then can be removed and

Mr McGarvie will come out and see you, Mr Yildrim.

I will stand down and I will come back on the Bench for my appeal matter.

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Citations

Director of Public Prosecutions v Yildrim [2017] VCC 1668

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

DPP v Rivette [2017] VSCA 150

Wheldon v The Queen [2011] VSCA 83

Buddle v The Queen [2014] VSCA 232

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[2017] VCC 1668

13 November 2017