Director of Public Prosecutions v Yolcu

[2017] VCC 1609

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00886
CR-17-01409

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURAT YOLCU

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2017
DATE OF SENTENCE:	19 October 2017
CASE MAY BE CITED AS:	DPP v Yolcu
MEDIUM NEUTRAL CITATION:	[2017] VCC 1609

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Robbery - false imprisonment - contravention of CCO

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:2 years’ imprisonment, 16 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Ms K. Ballard	Doogue O’Brien George

HIS HONOUR:

1Murat Yolcu, you have pleaded guilty to one charge of robbery and one charge of false imprisonment. 

2The maximum penalty for robbery is 15 years' imprisonment and for false imprisonment 10 years' imprisonment.

3You are further to be dealt with for your contravention of the community correction order imposed by me on 3 August 2016 in this court on your plea in Case No. CR-16-00886.  That sentence was imposed by me for the offence of armed robbery.

4As to background, your offending was committed in company with Mr Michael Stojcevski.  Mr Stojcevski was 25 years of age at the time and is now 26.
Mr Stojcevski will be sentenced in December following an assessment and final report from Disability Services.

5You were born on 12 March 1989 and are currently 28 years old.  You were this age at the time of offending. 

6You have a criminal record, about which I will go into more detail shortly. 

7The victim is Nidhiraj Singh.  At the time of the offending he was 23 years old and had travelled from New South Wales to Melbourne for the weekend for work.

8On Saturday, 25 March 2017 at 2 am Mr Singh left a bar on Swanston Street in Melbourne and started to walk along Lonsdale Street towards his accommodation.  He was alone. 

9As he was walking both you and Mr Stojcevski approached him.  Nobody else was nearby at the time.    

10Mr Stojcevski told Mr Singh to kneel on the ground.  You both started racially abusing and threatening Mr Singh, saying such things as, "We're sick of you Indians coming here and thinking that you are top shit".  One of you said, "Do you want to get hit?"  Fearing what you would do, Mr Singh knelt on the ground.

11Mr Stojcevski demanded to see Mr Singh's mobile phone and told him to stand up.  You both were standing approximately 1 metre in front of Mr Singh.
Mr Stojcevski told Mr Singh to re-set the phone to its factory settings, which
Mr Singh said he did not know how to do.  Mr Stojcevski said, "Don't play dumb", a few times then directed Mr Singh how to reset the phone, which required
Mr Singh to enter a password to his iCloud account.  Mr Singh said he didn't know the password, to which you both repeatedly said, "Stop playing dumb, do you want to get hit".  This continued for about 15 minutes.

12During the incident Mr Stojcevski demanded that Mr Singh show him his wallet and hand over any money he had.  Mr Singh produced $45 cash which
Mr Stojcevski took, handing $40 of it to you.

13At some stage the two of you told Mr Singh to sit on a nearby park bench.  You continued to demand that he reset his phone.  Mr Singh attempted to unlock the phone by answering a security question instead of entering the password.  He guessed that the answer was his date of birth, but this was incorrect.
Mr Singh produced his driver's licence to show you both that he had entered his real birth date.  You, Mr Yolcu, took the licence, photographed it on your phone and kept the licence.

14Eventually the two of you told Mr Singh he had five minutes to unlock and re-set the phone or he would "get hit".  You, Mr Yolcu, started a five-minute timer on your own mobile phone.  Mr Singh continued to try to log in without success.  He felt "horrible and very threatened".  With 15 seconds to spare, Mr Singh was finally able to re-set the password by an email to his Hotmail email account and restore the phone's factory settings.  You took Mr Singh's phone from his hand.

15You both asked how much money Mr Singh had in his bank account, to which he responded, "Maybe $200".  Mr Stojcevski said, "Give us the money and you can go".  You both took Mr Singh to a nearby ATM and hid behind a pole while Mr Singh withdrew $150, which was as much as he had available in the account. 

16The two of you discussed what you should do next to ensure Mr Singh did not report the incident to police.  You initially mentioned taking Mr Singh with you to Sunshine but eventually decided to take him to a nearby park.  All the while both of you threatened Mr Singh, saying that you had his licence and knew where he lived and, "Do you want to see your mum again?"  While you were walking near Flagstaff Gardens Mr Stojcevski demanded Mr Singh's watch, which Mr Singh had hidden in his back pocket.  You, Mr Yolcu, took the watch from Mr Singh.

17The two of you and Mr Singh walked until you ended up near Festival Hall in West Melbourne.  Eventually you both hailed a taxi and demanded that
Mr Singh get in with you.  You sat in the front and Mr Stojcevski sat in the back next to Mr Singh.  You, Mr Yolcu, directed the taxi to a residential area in Burnside Heights where all three of you exited the car and started to walk off towards a park.  When the two of you were a few metres ahead of him Mr Singh ran back towards the taxi and got inside.  He told the taxi driver what had happened and borrowed his mobile phone to call a friend.  The taxi eventually dropped Mr Singh home at around 4 am.  The following morning Mr Singh called his parents, who told him to report the incident to police. 

18Parts of the incident were captured on closed circuit television from cameras around the Melbourne central business district and inside the taxi.

19Five days later on 30 March 2017, police executed a search warrant at the home of your co-offender, Mr Stojcevski.  Clothing matching that worn by one of you in the CCTV footage was located. 

20On the same day police executed a search warrant at your home.  At the house police found Mr Singh's driver's licence, his Tissot watch and clothing which matched that worn by the other offender as captured on the CCTV footage.

21You were arrested and conveyed to the Melbourne West Police Station where you were interviewed.  You answered “no comment” to all questions.  You were charged and transported to the Melbourne Magistrates' Court for a filing hearing and you were remanded in custody.

22The matter resolved at the first committal mention on 22 June 2017.  You there indicated an intention to plead guilty and sought that the matter be heard as a plea hearing in the summary stream of the Magistrates' Court.  The case was listed for a contested summary jurisdiction application on 13 July 2017.  You ultimately withdrew your application for summary jurisdiction.  You and your co-offender were both committed to the County Court for a plea hearing by way of straight hand-up brief.

23You have been in custody since your arrest on 30 March 2017 and have therefore served - is it 203 days?

24COUNSEL:  Yes, Your Honour.

25HIS HONOUR:  Yes, 203 days of pre-sentence detention excluding today.
Mr Singh declared a victim impact statement on 27 June 2017.  He was very shaken by the incident and has expressed continuing feelings of worry, anxiety, hyper-vigilance around public places and fears for his safety at night.

26I turn now to your personal circumstances. 

27As I noted earlier, you are currently 28 years old and you were that age at the time of the offending.  Your prior criminal history comprises the one charge of armed robbery for which I sentenced you to a 3-year community correction order in this court on 3 August 2016, just a little over a year ago. 

28Your early history and personal circumstances were set out by me when I sentenced you on 3 August last year.  In summary, you experienced a disadvantaged childhood involving abuse and bullying.  Your mother appears to have had a severe mental illness and treated you badly.

29You managed, however, to complete Year 12 at school and subsequently qualified with a diploma in Information Technology and Certificate 3 in Logistics. 

30You have been employed in various positions on a sporadic basis. 

31The principal issue in your personal life has been a history of moderate to severe depression, varying in intensity at different stages and sometimes leading to suicide attempts.  Your condition was previously untreated and you drifted into illicit drug use, possibly as a response to your condition by way of a form of self-medication.  I accept that your clinical depression has been moderate and longstanding.  You received regular treatment from Dr Grech, clinical psychologist, during May, June and early July of last year, leading to your previous sentence by me on 3 August 2016.

32Dr Grech reported at that time that you had been making significant progress since attending for treatment and taking prescribed anti-depressant medication.  Dr Grech considered at that time that your prospects of rehabilitation were “very strong” and the likelihood of re-offending appeared “very low”. 

33It appears from the material that you ceased using illicit drugs. 

34You had no criminal history prior to your last offending and your response to having been charged on that offence was to commence a Mental Health Plan under the supervision of your treating doctor.  According to the breach report you continued to engage in regular psychological treatment with Dr Grech.

35Your offending is, of course, very serious.  Robbery committed in company against a vulnerable and lone victim in the street late at night and keeping your victim contained as you did over an extended period of time is to be greatly deplored.  The offending was accompanied by threats of violence at the time and intimidation by further threats on the basis that you told him you knew where he lived.  The offending is aggravated by your commission of it whilst you were at the time subject to the conditions of a community correction order.

36Apart from matters of specific deterrence to you, these are crimes which require emphasis in sentencing of what the law calls general deterrence.  That is, the sentence you receive is partly designed to deter others from engaging in the same type of conduct.  Other considerations include denunciation by the court and the protection of the community, balanced with your personal circumstances and matters of mitigation. 

37The impact on Mr Singh is evidenced in the victim impact statement.  It was undeniably a very frightening experience.

38In mitigation I take into account the submissions of your counsel and, in particular, accept:

·    your plea of guilty and the early time at which it was entered, both for its utilitarian value and expression of some remorse;

·    your part-compliance with the community correction order, including that you completed the unpaid work component and continued counselling with Dr Grech;

·    the efforts you have made whilst in custody towards your rehabilitation, including referral to the Mobile Forensic Mental Health Service;

·    your reflection and regret for the choices you have made and the remorse expressed in your letter of apology to the victim and to the court; and

·    your likely continuing compromised mental health, which requires treatment but is capable, I note, of being managed.

39Overall, it is regrettable that you did not embrace the opportunity you had to engage fully with services which were available and required of you during the currency of the community correction order to which I sentenced you last time.  I am guarded also as to the depth of your remorse, noting that you had expressed your remorse to others the last time you were before me, yet reoffended in a serious way in similar circumstances within seven months of your sentence and whilst under the supervision of the community correction order.

40I am satisfied that the seriousness of the offending in the context of all the circumstances under consideration precludes a sentence disposition which does not involve you spending more time in custody.

41Mr Yolcu, could you please now stand?

42As to the current charges on CR-17-01409:

-    on Charge 1 of robbery you are convicted and sentenced to 18 months' imprisonment; 

-    on Charge 2 of false imprisonment, you convicted and sentenced to 6 months' imprisonment. 

43Charge 1 is the base sentence.

44I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

45On CR-17-01409, the total effective sentence is 21 months' imprisonment. 

46As to the contravention of the community correction order in CR-16-00886, I find the breach proven and make no penalty order on the breach charge itself.  I cancel the community correction order and re-sentence you on the charge of armed robbery.

47The circumstances of that offending are set out in detail in my sentence dated 3 August 2016.  In essence it involved you arranging to meet the victim concerning the purchase of tickets for a concert.  When he arrived you hit him with a wooden bat and demanded that he give you his wallet and phone.  The tickets were dropped and the victim ran off. 

48You were convicted and sentenced to serve a community correction order for a period of three years with various conditions including that you perform 100 hours of unpaid community work over a period of 12 months and attend for mental health and drug abuse treatment.  To your credit, you completed the entirety of the community work and continued counselling with Dr Grech.  I take into account the degree to which you complied with the correction order.

49On the charge of armed robbery in CR-16-00886 I take into account all the matters set out in my sentence dated 3 August 2016.  On that charge you are convicted and sentenced now to 12 months' imprisonment. 

50I direct that three months of this sentence be served cumulatively upon the sentence in CR-17-01409.

51The total effective sentence in respect of all offences is 24 months' imprisonment. 

52I direct that you serve a minimum period of 16 months' imprisonment before being eligible for parole.

53Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 203 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

54For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed for both matters heard this day is a term of imprisonment of 3 years with a non-parole period of 2 years.

55At the plea hearing the Crown sought a compensation order on behalf of the victim pursuant to s.86 of the Sentencing Act 1991 in relation to the stolen mobile phone and driver's licence, to which you have now consented, and I have made that order today.

56Are there any other matters, counsel?

57COUNSEL:  No, Your Honour..

58HIS HONOUR:  Thank you.  Mr Yolcu may be taken back into custody.

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