Director of Public Prosecutions v Yolcu

[2016] VCC 1114

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00886

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURAT YOLCU

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2016
DATE OF SENTENCE:	3 August 2016
CASE MAY BE CITED AS:	DPP v Yolcu
MEDIUM NEUTRAL CITATION:	[2016] VCC 1114

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:            Armed robbery

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton & Ors v The Queen [2014] VSCA 342

Sentence:                 3-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Ms C. McGrath	Victoria Legal Aid

Pages 1 - 11

 

 

HIS HONOUR:

1Murat Yolcu, you have pleaded guilty to one charge of armed robbery.  Armed robbery carries a maximum penalty of 25 years' imprisonment. 

2You are presently 27 years of age, having been born on 12 March 1989, and you were 26 when this offending occurred in December 2015. 

3You have no criminal record.

4The circumstances of your offending are more fully set out in a summary of prosecution opening dated 20 July 2016.  The summary was read in open court by the prosecutor and was acknowledged by your counsel as being a proper basis upon which I can proceed to pass sentence upon you.

5In summary, you met the victim for the purpose of him purchasing from you two tickets for a public concert.  You suggested meeting at a primary school.  You met at night at approximately 10 pm.  When the victim arrived at the primary school you approached his car and asked him to get out.

6The victim did so and you handed over two tickets.  You then removed a wooden baseball bat from under your clothes and hit the victim to his left elbow.  The tickets fell to the ground.  The victim then ran and you chased him down the street but you were unable to catch him.

7You said, "This is a stick up.  Give me your wallet and your phone."  The victim told you to “fuck off”.  You then returned to the parked car, retrieved the two tickets and ran off. 

8The victim's elbow was painful and bruised as a result of the incident.  He reported the incident to police that evening.

9You were arrested on 22 February 2016 and made full admissions in a subsequent police interview. 

10You told police, and I quote the expressions you used:

·     "I told the guy to meet up with me on Gillespie Road in front of Kings Park Primary School.”

·     “I told the guy to get out of the car.  So once he got out I pulled out a baseball bat and I hit him a few times...  That’s when he ran up the street.”

·     “I took the tickets and then I ran down the park across the road.” 

·     “I dumped [the baseball bat] somewhere in the park.”

·     “I wanted to get some Stereosonic tickets, hoping that I could sell them just in time before the event and I had no money at the time.  I felt pretty broke so that is the reason why I assaulted the guy for the tickets.” 

·     “I needed the money for everyday expenses.”

·     “Afterwards I stopped in the car park at McDonald's and composed myself.  I couldn't believe what I'd done.  I regret what I'd done.  I shouldn't have done it… but at the time when you're broke you get desperate, no-one is helping you find work and you end up doing something like that.”

·     “I tried to sell the tickets to friends but they weren't interested.  I didn't end up selling them, so, you know, I made no money off them at all."

11I note that you voluntarily showed police the text messages on your phone which you had sent when arranging the meeting with the victim. 

12After your police interview on 22 February 2016 you were charged and bailed by police to appear at the Melbourne Magistrates' Court for a filing hearing three days later on 25 February 2016.

13You were subsequently committed to the County Court on 19 May 2016 at the first committal case conference.  You then pleaded guilty and the matter proceeded by way of a straight hand-up brief. 

14You have served no pre-sentence detention. 

15I note that the victim has not declared a victim impact statement.  However, I can readily accept that your confrontation was both frightening and painful to him.

16I now turn to your personal circumstances. 

17As I noted earlier, you are now 27 years old and were 26 at the time of this offending.  You were living at home with your parents at the time of offending and you still remain with them.

18You have described your formative life at home as being very controlling by your parents and at time emotionally, as well as physically, abusive.  At times you were told you were worthless.  It appears that your mother had a traumatic upbringing from a young age herself and suffered from anxiety and aggressive outbursts.  You believe you became passive and mentally weak and this contributed to being bullied both at primary and secondary school. 

19You completed Year 12 and have worked sporadically since then in various factory and warehouse jobs.  When employment was available you showed that you were able to maintain your position, in one case for one and a half years, but in other cases you became unemployed when work ran out and you were retrenched.

20Along the way you have obtained a diploma in information technology in 2008 and certificate 3 in transport and logistics and you have shown an interest in pursuing employment in those areas.

21You are currently undertaking treatment following a Mental Health Care Plan under the supervision of your general practitioner.  Pursuant to that plan you were referred to Dr Grech, a consultant clinical psychologist, who has provided a report and an addendum to that report on your mental health.

22In Dr Grech's opinion you have suffered from a serious depressive condition, previously untreated and of long-standing duration.  This became evident to
Dr Grech from therapeutic evaluation over a period of approximately three months involving weekly psychological sessions, your score on a self-report scale of depression and background family history including suicide attempts.

23I accept this diagnosis as established on the evidence.  However I do not accept that there is sufficient evidence before me to consider Dr Grech's diagnosis of "possible low grade psychotic symptomatology" as other than speculative.

24I accept that your drift into illicit drug use is a likely response to your underlying depressive condition by way of a form of self-medication.  I accept that imprisonment would be more onerous for you than on a person in good mental health, and that your health issue is a significant factor in considering your rehabilitation.

25Your response to having been charged has been immediate remorse for what you had done, responsible contemplation of the causes, and insight into what was needed to address those causes.  You have followed the treatment plan, regularly attended psychological treatment and maintained a course of prescribed anti-depressant medication.  The results have been encouraging.

26The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context and your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

27In mitigation I take into account the matters urged on your behalf by your counsel, including:

·     your cooperation with the police investigation and your frank admissions;

·     your plea of guilty and the early time at which it was entered; 

·     I also treat your plea of guilty as indicative of remorse - when you were interviewed you expressed remorse to those who interviewed you in the investigation and to others who have spoken to you, including the character witnesses and psychologist;

·     the absence of any prior or subsequent criminal history;

·     your commitment to rehabilitation and the prospects of your rehabilitation, which I assess as high;

·     your underlying history of long-standing depressive disorder in the context of quite a traumatic early development;

·     despite setbacks, your willingness to re-engage in regular employment;

·     that whilst you made contact with the baseball bat to the victim, it most likely was not a full-force blow and any injury was relatively minimal;

·     you made no attempt to disguise yourself, and the offending, whilst planned, was unsophisticated and led to easy discovery.

28In sentencing you I have taken into account as best I can the material available as to current sentencing practices.  In doing so I have reviewed the statistics overview and summaries provided by the Judicial College manuals and the Sentencing Advisory Council.

29Most of this material pre-dates the significant change to sentencing considerations that has developed since amendments to the Sentencing Act concerning community correction orders in September 2014, and the decision of the Court of Appeal in the case of Boulton & Ors in December 2014[1].  I have given close attention to the principles expressed in that decision and to the further expressions of the Court of Appeal on the subject in subsequent decisions.

[1] Boulton & Ors v the Queen [2014] VSCA 342

30Ordinarily, for an offence of this nature an offender should expect a sentence of imprisonment to be immediately served and for a significant period.  Whilst considerations of deterrence may be ameliorated by your personal circumstances, absence of any prior convictions and prospects of rehabilitation, they are not eliminated. 

31Armed robbery is a particularly serious crime and in your case it was aggravated by your actual use of the baseball bat.  Denunciation by the court and general deterrence - that is, a sentence that is designed to deter other like-minded offenders - remain as important and applicable principles, quite apart from the specific need to impose a sentence that will deter you from re-engaging in similar conduct.

32The Court of Appeal in the case of Boulton said that:

“The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?”[2]

[2] Ibid [121]

33On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison.  The authority of Boulton anticipated the community correction order as being a disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence.

34In important respects a community correction order can reflect very significant punishment.  First, it can be imposed to operate for a significant period of years.  Then, there can be onerous conditions attached.  Further, there is the penalty of potential imprisonment for any breaching offence and a contravention of the terms can result in re-sentencing for the original offence - which can mean immediate imprisonment.

35The breach provisions provide a powerful disincentive for further offending and the imposition of time to be served in unpaid community work can represent significant punishment reflecting denunciation and deterrence.

36In light of the particular extenuating circumstances of this case, an appropriate tailored community correction order would, in my view, fall within the appropriate sentencing range.  You have been assessed as suitable for such disposition. 

37I note the prosecution was prepared to accept that in the particular circumstances of this case this disposition would not be outside an appropriate sentencing range.

38Mr Yolcu, would you please now stand. 

39On Charge 1 of armed robbery you are convicted and ordered to serve a community correction order for a period of three years. 

40The community correction order commences today and ends on 2 August 2019.  The corrections centre you will attend is the Sunshine Community Correction Service at 10 Foundry Road, Sunshine, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Friday, 5 August.

41All the mandatory terms of a community correction order apply and the additional conditions I impose are that:

·     you be under the supervision of a community corrections officer;

·     you perform 100 hours of unpaid community work over a period of 12 months as directed by the regional manager;

·     you undergo assessment and treatment (including testing) for drug abuse and/or dependency as directed by the regional manager;

·     you undergo medical assessment and treatment that may include general or specialist medical treatment or treatment, if necessary, in a hospital or residential facility, as directed by the regional manager;

·     you undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric, again if necessary in a hospital or residential facility, as directed by the regional manager.

42I realise that you have already had the mandatory terms of the community correction order explained to you but I will go over them again now.  The mandatory terms are that:

·     you must not commit another offence for which you could be imprisoned during the time that the order is in force, and I tell you now there are not many offences that do not carry with them an aspect that involves punishment by imprisonment;

· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to attendance at the community correction centre, such things as not attending drug-affected or alcohol-affected;

·     you must report to and receive visits from a community corrections officer;

·     you must report to the community corrections centre, that is the Sunshine Centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm this Friday;

·     you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·     you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·     you must obey all lawful instructions from and directions of community corrections officers.  Such directions may be given either orally or in writing.

43Do you understand and agree to those conditions?

44ACCUSED:  Yes, Your Honour.

45HIS HONOUR:  If you get sick or if there are some exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the community corrections centre and I recommend that you obtain legal advice if any of these things happen.

46However I must warn you that if you breach any condition of this order you will be brought back before me.  One of the options open to me is to cancel the community correction order and re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months.

47Mr Yolcu, do you understand the consequences of breaching your community correction order?

48ACCUSED:  Yes, Your Honour.

49I will ask you to sign the community correction order shortly. 

50At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.

51I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be undertaken.  Do you understand that, Mr Yolcu?

52ACCUSED:  Yes.

53HIS HONOUR:  At the plea hearing the Crown also sought a disposal order to which you consented and I have also made that order today. 

54Unless there are any other matters from either counsel the order can be now passed to your representative, Ms McGrath, and if you could ensure that Mr Yolcu understands it, and if he does he accepts it and signs it.

55Mr Yolcu, can I just add something?  I do believe that your prospects of rehabilitation are high.  I am impressed by the way in which you applied yourself once you had realised what you had done.  I think it is tragic that you have got yourself into that situation, but ironically some real good has probably come out of the circumstances and the incident itself because it has really brought to a head your own recognition of your own problems and how you really need to address them.

56You have probably gained a lot out of being with Dr Grech so far.  You have gained a lot by actually having prescription medication, something that otherwise probably led you take illicit drugs in order to feel a bit better.  Keep away from those drugs because it is those matters that keep bringing people before us in the courts all the time.

57They make a mess of your head and if you work with the appropriate professionals you will be able to get on top of the issues in your life like many other people in the community who are otherwise able to lead normal lives and have very successful lives.

58If you keep applying yourself to those matters you will work through this community correction order.  Can I encourage you to maintain that interest you have got in logistics, particularly transport?  There is a lot of good work available in that and if you can get greater qualifications in that area you will probably find that will be very helpful to you.

59Perhaps I should also explain this, that it might seem at first sight that the 100 hours of community service is pretty light in light of punishment for armed robbery.  I do not want to discourage you from getting full-time work and it is going to be to your benefit that you keep seeking and working towards obtaining and maintaining that sort of work.

60If I were to impose more prohibitive hours of community work, that might actually undermine your ability to maintain full time work.  So if you could be responsive to that and really seek that full time employment you will find that the work order I have given you is not so onerous that it is going to break down and undermine that capacity for work, because you will find as you get regular work and you maintain it, it is going to keep you active and you will feel a lot better about yourself.

61The other thing is that I just remind you that if you breach the order you will be brought back to court and you will be back before me - and I will not have much sympathy.

62ACCUSED:  Thank you, Your Honour.

63HIS HONOUR:  I think you can make it.  Thank you.

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