Director of Public Prosecutions v Yuksel
[2020] VCC 1701
•21 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA YUKSEL |
---
JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2020 | |
DATE OF SENTENCE: | 21 October 2020 | |
CASE MAY BE CITED AS: | DPP v Yuksel | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1701 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Sentence – arson – discharge firearm in public place – theft – possess drug of dependence – parity – youthful offender – guilty plea after sentence indication
Legislation Cited: Crimes Act 1958 (Vic) s73(4); Sentencing Act 1991 (Vic), ss5(4C) and 89(4)
Cases Cited: Boulton v R (2014) 46 VR 308
Sentence: Charges 1 and 3 – aggregate term of imprisonment 27 days; pre-sentence detention of 27 days declared as time already served; Charges 1, 2 and 3 – community correction order for a period of 30 months with 200 hours of unpaid community work, supervision, assessment for and participation in programs to address offending, non-association condition; Charge 4 - $500 fine with conviction.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Daryl Brown | Office of Public Prosecutions |
| For the Accused | Ms Cynthia Lynch | Papa Hughes Lawyers |
HER HONOUR:
Introduction
1
Mustafa Yuksel, you have pleaded guilty to four charges being theft (charge 1), use a firearm in a public place (charge 2), arson (charge 3), and possession of a drug of a dependence (charge 4). The maximum penalty for theft and use a firearm in a public place is 10 years’ imprisonment, for arson is 15 years’ imprisonment, and for possession of a drug of dependence (where the offence was not committed for any purpose related to trafficking) is
30 penalty units or 1 year imprisonment.
2 The offences arise from a series of incidents which occurred on 14 July 2018. At the time you were 24 years of age. You come before the court with no prior convictions and you have nothing pending.
Circumstances of the Offending
3
The full circumstances of the offending for which you fall to be sentenced are set out in the ‘Agreed Summary of Prosecution Opening for Plea’ dated
12 October 2020 which was tendered as Exhibit A on the plea. However, in summary, during the early hours of 14 July 2018, you and a co-accused,
Mr Yahya Aboueid, were travelling together in a stolen Hyundai i30 Hatch (charge 1 – theft). It is not alleged that either yourself or Mr Aboueid were responsible for stealing the vehicle, rather the theft charge is based on the use of the Hyundai whilst knowing that the car was stolen.[1]
[1] Pursuant to Crimes Act 1958 (Vic), s73(14).
4 The Hyundai travelled from Brunswick to Clarendon Street in South Melbourne. At approximately 1.51 am, it pulled up outside the City of Ink Tattoo Parlour at 216 Clarendon Street and either yourself, or Mr Aboueid, exited the vehicle and fired five shots at the tattoo parlour from a .38 firearm (charge 2 – use a firearm in a public place). No one was at the premises when the shots were fired, nor was there anyone in the immediate vicinity of the incident. You have pleaded guilty to this charge on the basis of being complicit in the offence. It is conceded by the prosecution that it cannot be proved beyond reasonable doubt as to which of the two of you actually fired the weapon.
5 After the firearm was discharged, you and Mr Aboueid both then travelled back to Brunswick in the Hyundai and met with a third co-accused, Mr Hakan Akbal. Mr Akbal drove to meet you in a white Ford and brought with him a jerry can of petrol. Less than thirty minutes after the shooting had occurred, that petrol was used to set the Hyundai alight in a laneway off Donald Street in Brunswick (charge 3 – arson). Again you have pleaded guilty to this charge on the basis of being complicit in the offence. It is conceded by the prosecution that it cannot be proved beyond reasonable doubt as to which one (or more) of the three of you actually set fire to the vehicle. However, it is clear that the Hyundai was set alight for the purpose of destroying evidence connecting yourself and Mr Aboueid to the shooting, and that all three of you were fully aware of that purpose. The three of you then left the scene in the white Ford with Mr Akbal driving.
6 Police who were patrolling the area on an unrelated job located the Hyundai fully ablaze, with the adjacent fence also being alight. The police officers called the Fire Brigade who attended and extinguished the fire. At around the same time as police officers were attending to the scene of the arson, the white Ford, in which the three of you were travelling, was intercepted by a different police unit on Moreland Road for driving without headlights on. The jerry can was still in the vehicle at this time and the three of you were ultimately arrested, and interviewed on 14 July 2018 at the St Kilda Police Station. You gave a “no comment” record of interview.
7 During a suspension in the record of interview, a search warrant was executed at your home address, and amongst the items seized were 4 vials of testosterone and 1 vial of trenbolone (charge 4 – possess drug of dependence).
8 You were ultimately released, without being charged, on this day.
9 During the subsequent investigation there were a number of items of evidence of particular relevance which were uncovered. Located in the Ford vehicle in which the three of you had been travelling was a key to the Hyundai; and in the burnt out Hyundai was a .38 calibre snub-nose revolver with five fired casings still in the cylinder. There were some particles highly consistent with gunshot residue found on your hands, clothing you were wearing, and in a pair of gloves found in the white Ford which could potentially be linked to you via DNA results – albeit it was conceded at committal by the expert witness that the deposit of all of the particles could have occurred by transference. Similar particles were found on Mr Aboueid’s hands, clothing and a different pair of gloves which could potentially be linked to him. No gunshot residue was located on Mr Akbal’s hands or clothing.
10 On 1 August 2018 you were again arrested, a further search warrant was executed at your home and you were interviewed for a second time. You again exercised your right to silence and made no comment when interviewed.
11 You were then charged and remanded in custody on that day, and were not released on bail until 27 August 2018. You therefore have 27 days of pre-sentence detention.
Guilty Plea
12
This matter has a long history – with the initial filing hearing being more than two years ago on 2 August 2018. The matter was initially listed for a contested committal hearing in February 2019 but could not proceed at that time. It was adjourned to 24 May 2019, and then further adjourned – part-heard – to
18 June 2019, at which time you were committed to stand trial on all but two charges. Only two witnesses were called for cross-examination on your behalf at the contested committal, being the firearms expert and the informant. You did not seek at any point to cross-examine any civilian witnesses.
13 Charges 1, 2 and 3 (together with an additional charge which is no longer being pursued by the prosecution) were listed to proceed as a trial in the County Court on 31 August 2020, however due to the impact of COVID-19 restrictions, the trial date had to be vacated. Charge 4 was originally the subject of a separate indictment and you at all times had indicated an intention to plead guilty to that charge.
14 Shortly prior to when the trial was due to commence, one of your co-accused – Mr Akbal – entered a plea of guilty to one charge of arson, and one charge of assisting an offender. Once your trial date had been vacated you made an application, supported by the prosecution, for emergency case management with a view to attempting to resolve your matter. After some relatively fruitful discussions between the parties, the matter came before me on 8 October 2020 with an agreed summary for the purposes of a sentence indication. In response to that indication – that a term of imprisonment to be served immediately would not be imposed – you indicated your intention to plead guilty to the four charges which are now before the court.
15 Despite the significant history to this matter, I do still consider your plea, globally, to be a valuable plea of guilty. Firstly, whilst the prosecution case on the arson was, in my view, a relatively strong circumstantial case, I am of the view that there was an arguable defence in respect of the charge of discharging a firearm.[2] Secondly, I accept that your pleas of guilty have facilitated the course of justice which is particularly important in these unprecedented times for the criminal justice system. Thirdly, I accept that you have by and large saved almost all of the witnesses from having to give evidence in this case, and saved the community the time and expense of the trial. Fourthly, I accept that your pleas reflect an acknowledgement by you of your responsibility for your part in the offending. I note that your acceptance of responsibility and understanding of the dangerousness of your actions is also reflected in the assessment report prepared by Corrections.
[2] I note that whilst Mr Brown, counsel for the prosecution, did not go so far as to concede that there was an arguable defence on charge 3, he certainly conceded that the circumstantial case on charge 3 was weaker than the circumstantial case on charge 2.
16 Accordingly, despite your pleas of guilty on the first three charges not having been entered at the earliest opportunity, I have still given you a significant discount for those pleas, as I have also for your guilty plea on charge 4.
Gravity of the Offending
17 Your offending in respect of charges 1, 2 and 3 is serious offending, irrespective of whether you were the person who fired the shots or set the vehicle alight. You were involved in an incident where a gun was discharged five times in a public place, and were then involved in an attempt to completely destroy the evidence connecting yourself and Mr Aboueid to the offending.
18 It cannot be said that this offending was completely spur of the moment offending. Indeed I accept the prosecution submission that there must have been a level of planning involved in this offending. Whilst I note, and accept, the prosecution concession that it cannot be said that you were the instigator of the plan, I am satisfied that there was a plan. This is reflected both in the use of a stolen vehicle to travel to and from the City of Ink; and the seamless manner in which that stolen vehicle was driven from Brunswick to South Melbourne, paused for the shots to be fired, and was then driven immediately back to Brunswick for the liaison with Mr Akbal who had a jerry can of petrol ready to destroy the evidence, and the Ford ready to drive you all away from the scene of the arson.
19 I am not, however, able to be satisfied to the requisite standard that the purpose behind the discharge of the firearm was some form of intimidation as submitted by Mr Brown during the sentence indication hearing. Whilst one of the owners of the City of Ink Tattoo Parlour is Toby Mitchell, a high ranking member of the Bandidos, and you were found to have clothing at your home which suggested that you might, at some point, have had some kind of connection with the Comancheros, there is simply insufficient evidence upon which I could be satisfied as to the real motivation behind the discharge of the firearm.
20 When considering the relative seriousness of the charges, I note that whilst serious, the discharge of the firearm occurred in the early hours of the morning, when there was no-one in the immediate vicinity of the discharge and where no person was placed in danger. This reduces the gravity of the firearm offence to some degree.
21 However, I consider that both the theft of motor vehicle and the arson fall towards the mid to higher range of those kinds of offences. Whilst the value of the vehicle was not in the highest order, and no person was placed in immediate danger by the arson, both offences were committed in an attempt to avoid responsibility, and escape apprehension, for the shooting incident. This elevates their seriousness considerably as against other similar examples of these offences which were not committed for the purpose of avoiding apprehension for another crime.
22 Insofar as the possession of the anabolic steroidal agents is concerned, it is conceded by the prosecution, and I accept, that you were not in possession of those drugs for the purposes of trafficking. I am of the view that your possession of the steroids, especially in light of your lack of prior convictions, falls at the lowest end of the scale of seriousness.
Victim Impact
23 I note that no victim impact statements have been provided.
Personal circumstances
24 You are now 27 years of age. You were born and raised in a Melbourne suburb by your hard-working parents who migrated to Australia from Turkey when they were 18 years of age. You are the second oldest of four brothers – and all four of you have been raised in a loving home and with a good work ethic.
25 You completed year 12 at Gladstone Park Secondary College when you were 18 years of age and then commenced an apprenticeship in vehicle mechanics. After two years you withdrew from the apprenticeship as you did not wish to continue in that field long term. You then spent some time working both in your aunt’s take away shop, and as a security guard, before commencing work in the concreting industry in 2016.
26 You have remained employed in that industry since 2016 and are currently employed full time. It is apparent from the glowing references which were provided by your current and former employers that you are a much-valued employee who is a skilled, professional and committed worker.
27 Your family similarly speaks very highly of you. It would seem that leading into this offending that you had become more engaged with your friends and associates through the gym which you had been attending, and had become somewhat disconnected from your family. However, the impact of your time in custody on both yourself and your family, and in particular your mother, has caused you to re-engage with your family and leave your previous lifestyle behind.
28 Since your release from custody you have been living with your parents. You have also met, and married, your now wife, and the two of you are expecting a child in June next year. Your parents, one of your brothers and your wife all provided references on your behalf. Each of them remarks on your commitment to your family, your work, and your wife since your release from custody over two years ago. Your younger brother, in particular, had the following to say:
'My brother is very hardworking. He has learnt from his past mistakes and warns me and my friends not to make the same mistakes. And now that we work together, I can see how much he has changed. He is my mentor, and he supports our family. I look up to my brother and the way he treats my sister in law. That’s the man I’d like to be when I get married.[3]'
Relevance of Youth, Delay and Prospects of Rehabilitation to Sentencing Purposes
[3] Reference from Enes Yuksel, dated 5 October 2020.
29 As previously noted you were 24 years of age at the time of the offending. You were accordingly still on the cusp of being a youthful offender – a matter which was conceded by prosecuting counsel. Additionally you come before the court with no prior convictions and nothing pending.
30 You have now been on bail – with very strict conditions – for over two years without any allegation of breach. The conditions included reporting (initially daily, then thrice-weekly reporting), a curfew and a number of other conditions which were restrictive of your movement, associations, and use of technology. During that time you have continued to work, stayed out of trouble and contributed to the financial and emotional well-being of your family – despite having the anxiety of these matters hanging over your head.
31 You have a strong work ethic, stable accommodation, strong family support from both your biological family and your wife, a child on the way, and the ongoing support of your current and past employers. I am of the view, that in light of those matters, your good character both pre and post-offending, and your youth at the time of the offences, that you have excellent prospects of rehabilitation and that your ongoing rehabilitation should be given significant weight in the sentencing process. Further, I am satisfied that these same factors, in combination with the impact on you of the time you have already spent in custody on remand, means that minimal weight needs to be given to the sentencing purposes of specific deterrence and community protection.
32 However, despite your very positive prospects of rehabilitation, any sentence which I impose must also reflect the gravity of the offending in this case. Your conduct must be denounced, and substantial weight must be given to general deterrence in a bid to deter others from behaving in the way you did.
Impact of COVID-19
33 In determining the type of sentence to be imposed, defence counsel submitted that I should also take into account that if you were to be imprisoned again now, the burden of any further period of imprisonment would be increased by reason of the COVID-19 restrictions which are currently in force. At minimum, you would be subject to a 14 day period of quarantine, would be unable to have any face to face contact with your family, wife and friends, and would have limited ability to access courses and programs whilst in custody. Further, any term of imprisonment during the current pandemic would lead to an increased anxiety on your part as to not only your own health in custody, but also the health of your parents, wife and family in the community.
34 I do take these considerations into account.
Parity
35 As indicated earlier, one of your co-accused – Mr Akbal – has already pleaded guilty to offences in respect of his part in this offending. On 8 August 2020, he entered pleas of guilty before Her Honour Judge Cannon to one charge of assisting an offender (in respect of the offence of using a firearm in a public place) and one charge of arson. On 27 August 2020 he was convicted and ordered to undertake a community correction order for a period of two years with special conditions to perform 100 hours of unpaid community work, be under the supervision of Corrections, participate in programs and/or courses that address factors relating to offending behaviour, and to not contact or associate with either yourself or Mr Aboueid for the period of the order.
36 Parity is a relevant consideration in this case despite the difference in the offences charged. Insofar as each of your personal circumstances are concerned, there is a lot of similarity between yourself and Mr Akbal in terms of relative youth, no prior or pending criminal matters, strong work history, ongoing employment and significant supports in the community. Both of you also fall to be sentenced on the arson on the same factual basis.
37 The main distinguishing features between you (insofar as parity is concerned) are that your involvement in the offence of using a firearm in a public place and the use of the stolen motor vehicle make the gravity of your overall offending more serious than that of your co-accused, and you have already spent a period of 27 days in custody on remand, which Mr Akbal had not.
38 Accordingly, whilst it is appropriate that you be sentenced to a more severe sentence than that imposed on Mr Akbal to reflect the greater gravity of your offending, the sentence imposed on Mr Akbal is a relevant consideration in determining what would be a just punishment in your case.
Submissions on Sentence
39 Ms Lynch, on your behalf, submitted that an appropriately structured community correction order, combined with the period of time which you served on remand, can adequately address and reflect all of the sentencing considerations in this case.
40 Mr Brown, by contrast, submitted that whilst it would be open for the court to impose a combination of a term of imprisonment and a community correction order in this case, a term of imprisonment to be served immediately upon being sentenced (effectively a term of imprisonment greater than time served) should be imposed.
Is a Further Term of Imprisonment Required to Meet all of the Sentencing Purposes?
41 As is apparent from the sentencing indication which I gave on 8 October 2020, I agree with defence counsel that a term of imprisonment commensurate with time already served on remand, combined with a community correction order can sufficiently address the sentencing purposes in this case.
42 As I have already said on a number of occasions, I consider the offending to be serious and substantial weight must be given to principles of general deterrence and denunciation. However, section 5(4C) of the Sentencing Act 1991 provides that a court must not impose the confinement of an offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order.
43 As was recognised by the Court of Appeal in its guideline judgment of Boulton v R (2014) 46 VR 308:
'…a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[4]'
[4] At [131].
44 Having carefully considered the various sentencing considerations raised by this case, and in view of the strong mitigating factors, I am of the view that there is sufficient scope for me to address each of the sentencing purposes in respect of all of the charges except charge 4, by imposing a ‘properly-conditioned’ community correction order of significant length on charge 2, and a ‘properly-conditioned’ community correction order of significant length in addition to the time already spent in custody on charges 1 and 3. In my view the gravity of the offending and the need to address general deterrence and denunciation can be met through both the length of the correction order imposed and the conditions imposed upon it, in combination with the period of imprisonment already served; rather than requiring a further term of imprisonment. Further, I am of the view that to place you back in custody now and expose you to criminal elements which you would not otherwise be exposed to, would be a negative step both in terms of your ongoing rehabilitation and community protection.
45 I note that I have had you assessed for a community correction order, and, unsurprisingly, you have been assessed as suitable for such a disposition. According to the assessor you engaged in an open and forthcoming manner, expressed remorse, and displayed some accountability for your actions.
46 Insofar as charge 4 is concerned, I am of the view that the charge of possession of a drug of dependence is not so serious as to warrant being sentenced by way of imprisonment or a community correction order – either individually or as part of an aggregate sentence. I am of the view that the sentencing purposes would be sufficiently met in respect of that offence through the imposition of a monetary penalty.
47 In determining the length of imprisonment, the length of the community correction order, the conditions imposed on the community correction order and the amount of the fine I have also taken into account the principles of proportionality and totality.
Sentence
48 Mr Yuksel, you will be sentenced on each charge as follows.
49 On charge 1 (theft) and charge 3 (arson), you are convicted and sentenced to an aggregate term of imprisonment of 27 days.
50 Additionally on charges 1 and 3, and also on charge 2 (use firearm in a public place), you will be convicted and placed on a community correction order for a period of 30 months – assuming that you consent to such an order.
51 That order will contain a number of mandatory conditions which are as follows:
(i) you must not commit another offence for which you could be imprisoned during the time that the order is in force;
(ii) you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
(iii) you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
(iv)
you must report to Coolaroo Community Corrections Centre before
4 pm within two clear working days of today;
(v) you must let Community Corrections know within two clear working days of you changing your address or job;
(vi) you must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
(vii) you must obey all lawful instructions from and directions of the Secretary.
52 The conditions that apply in addition to those mandatory conditions are:
(a) you must perform 200 hours of unpaid community work over a period of 30 months) as directed by the Regional Manager;
(b) you must be under the supervision of a Community Corrections officer for a period of 30 months;
(c) you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager; and
(d) you must not contact or associate with Yahya Aboueid, Hakan Akbal or any outlaw motorcycle gangs, for a period of 30 months.
53 Do you understand the conditions of the order, Mr Yuksel?
54 OFFENDER: Yes, Your Honour.
55 HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced on charges 1, 2 and 3 and therefore may face a further term of imprisonment for those offences. Do you understand that?
56 OFFENDER: Yes, Your Honour.
57 HER HONOUR: Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
58 OFFENDER: Yes, Your Honour.
59 HER HONOUR: Thank you. On charge 4 (possess drug of dependence), you are convicted and fined the sum of $500. That fine will be referred to Fines Victoria for collection and management. I do not know how long it will take for you to get the paperwork from Fines Victoria but in due course you will receive paperwork that gives you options. You can convert that fine to community work if you wish to, however my view was that rather than making it part of the community corrections order and elevating the seriousness of that charge it was preferable to fine you to reflect the low level of seriousness rather than just adding on some extra community work.
60 It then gives you the option whether to deal with it by way of actually paying it or by converting it to community work. Do you understand that?
61 OFFENDER: Yes.
Pre-Sentence Detention
62 HER HONOUR: Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the period of 27 days is to be reckoned as a period of imprisonment 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. So what that means, Mr Yuksel, is that you have already served the term of imprisonment and you only have the community corrections order and the fine to deal with.
s6AAA Declaration
63 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, and I include in that because of the length of the CCO the charge for which you received just the CCO as well, you would have been sentenced to a total term of imprisonment of 36 months with a non-parole period of 26 months. So you have saved a substantial amount of time in custody and been given the benefit of the community corrections order by reason of your plea.
Licence Suspension
64 Having convicted you of charge 1, theft of motor vehicle, I am required, pursuant to s 89(4) of the Sentencing Act 1991 (Vic), to either suspend your licence, or cancel your licence and disqualify you from driving for a period of time.
65 Ms Lynch urged me to impose ‘a period of suspension of mercifully limited duration’ given your reliance on your licence for employment, your previously unblemished driving history and the factual matrix upon which you have been sentenced for theft of motor vehicle. Mr Brown did not take issue with the defence submissions in respect of any period of suspension.
66 As already indicated in these reasons for sentence, I am of the view that you have excellent prospects for rehabilitation – in part based upon your strong work history and the ongoing employment opportunities available to you. I accept that if I was to impose a lengthy licence suspension upon you that it would impact upon your ability to engage fully with your employment, thereby impinging on your rehabilitation. Further, given that you have no prior driving offences I am satisfied that if I was to only suspend you for a short period of time, your return to the road at an early stage would not endanger other drivers.
67
Accordingly I am going to accede to Ms Lynch’s submissions and I am going to suspend you from driving for only a short period of time. On charge 1, your licence will be suspended for a period of 21 days commencing today –
21 October 2020.
68 What that means, Mr Yuksel, is that you cannot get into a car and drive for the next 21 days, your licence is suspended. If you were to drive in that period of time not only would you be committing an offence it is an offence that can be punishable by imprisonment and so you would be breaching your community correction order as well.
69 So it is really important that you do not get back into your car and drive until the period of suspension is over. Given that it is only a period of 21 days I would hope that you are able to make alternative arrangements for that short period of time to ensure that you do not get into a vehicle for any reason. If there is an emergency ring 000 and get someone else to drive. You do not hop into a vehicle yourself. Do you understand that?
70 OFFENDER: Yes.
Other Ancillary Orders
71 HER HONOUR: In terms of the disposal orders where did we end up with those, Mr Brown?
72 MR BROWN: Your Honour, I have just got to say maybe it might be prudent not to get them at this stage. So in relation to - sorry, Your Honour, I thought my instructors were going to be here to seek them.
73 HER HONOUR: I do not have them but just take a moment and do it that way at this stage.
74 MR BROWN: That is the forfeiture order?
75 HER HONOUR: Yes.
76 MR BROWN: Then in relation to the disposal order just out of caution - I cannot really seek instructions - if items 2 to 24 and perhaps 31, so 2 to 24 and 30.
77 HER HONOUR: Thirty or 31, 30?
78 MR BROWN: So 30, the Samsung phone.
79 HER HONOUR: So just to clarify I will be making - you are seeking a disposal order in relation to number one which is the knife.
80 MR BROWN: Yes.
81 HER HONOUR: Number 25, 26 and 27, which are a series of Comanchero jumpers.
82 MR BROWN: Yes.
83 HER HONOUR: Twenty-eight, which is the vials of testosterone and 29, which is the vial of trenbolone and 31, which is the Telstra contract.
84 MR BROWN: Yes, and then the rest possibly have got some connection with - a direct connection with the offending so perhaps it would be more prudent to not have those at this stage.
85 HER HONOUR: I will make the disposal order pursuant to s.78(1) of the Confiscation Act - I will make a disposal order in respect of the following items, a knife, which is item 1 on the schedule, one by black Comanchero jumper, which is item 25 on the schedule, four by white Comanchero jumpers, which is item 26 on the schedule, two by black Comanchero jumpers, which is item 27 on the schedule, four by vials of testosterone which is item 28 on the schedule, one by vial of trenbolone which is item 29 on the schedule and one by Telstra contract in the name of Mustafa Yuksel which is item 31 on the schedule.
86 Let me just check with my associate.
87 MS LYNCH: I can indicate that those items of clothing I think were all taken from Mr Yuksel.
88 HER HONOUR: Sorry, I cannot hear that, Ms Lynch.
89 MS LYNCH: Sorry, there is a number of items of clothing including socks and what not. I think they were taken from Mr Yuksel and I am not sure whether the Crown wants to forfeit that under this order or whether that should - - -
90 HER HONOUR: It might be safer at the moment to just leave those because I do not think Mr Brown is 100 per cent sure which ones are Mr Aboueid's and which ones are Mr Yuksel's without seeking some further instructions.
91 MS LYNCH: I will not go there then.
92 MR BROWN: And also, Your Honour, I assume they are, but I do not know for sure, the clothing that he was wearing at the time of his arrest. So it might become relevant in terms of testing in the future.
93 HER HONOUR: Transference?
94 MR BROWN: Yes.
95 HER HONOUR: We will leave that then. I know I have referred to specific item numbers at the moment. When the new draft forfeiture order is sent through there will obviously be different item numbers but I will dispose of the items that I have identified in terms of description when that order comes through.
96 MR BROWN: If Your Honour pleases.
Other Matters
97 HER HONOUR: Counsel, are there any other matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
98 MR BROWN: No, Your Honour.
99 MS LYNCH: No, Your Honour. I think Your Honour said on the last occasion that a verbal acknowledgment was the condition in the current climate.
100
HER HONOUR: Yes, that is right and I have just gone through that with
Mr Yuksel. Given that I have gone through the mandatory conditions and the additional conditions and indicated what the difficulties can be if he breaches the order and asked Mr Yuksel for his consent to that order, he has given that consent verbally, I am not requiring Mr Yuksel to physically sign that order.
101 Obviously that verbal consent has been recorded as part of these proceedings and the orders from today's proceeding will clearly reflect that that verbal consent has been given as well, so the order will note on it that there has been verbal consent.
102 MS LYNCH: As the court pleases I will go through that with him as well just he understands. Those orders can all be emailed to me.
103 HER HONOUR: Yes, they will, Ms Lynch.
104 MS LYNCH: Thank you, Your Honour.
105 HER HONOUR: Are there any other matters from either counsel at this stage?
106 MR BROWN: No, Your Honour.
107 HER HONOUR: Ms Lynch, nothing?
108 MS LYNCH: No, Your Honour.
109 HER HONOUR: So, Mr Yuksel, in the nicest possible way I hope I do not see you again because that will mean that you have got three community corrections orders that you have completed and that you have continued on the good path that you have been on for the last two years.
110 OFFENDER: Thank you, Your Honour.
111 HER HONOUR: Thank you very much.
- - -
0