Director of Public Prosecutions v Yuksel, Selma

[2013] VCC 575

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.  CR-13-00386

DIRECTOR OF PUBLIC PROSECUTIONS

v

SELMA YUKSEL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2013
DATE OF SENTENCE:	3 May 2013
CASE MAY BE CITED AS:	DPP v Yuksel, Selma
MEDIUM NEUTRAL CITATION:	[2013] VCC 575

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. S. Ching
For the Accused	Mr G. Traczyk

HIS HONOUR:

1       Selma Yuksel, you pleaded guilty to one offence of armed robbery, which took place on 8 July 2011 and involved robbery of two persons of money and a black backpack containing various items, at a time when you knew that your co-offender, Sue Constantinidis, had with her an offensive weapon, namely a hammer. 

2       You have also admitted two related summary offences, which involved your possession of cartridge ammunition, point 22 cartridges, and being a person who was carrying cartridge ammunition and failed to ensure that it was carried or used in a secure manner and taking reasonable precautions to ensure that the cartridge ammunition was not lost or stolen.  That related to a point 22 cartridge or bullet that was found in your possession at the time of your arrest. 

3       You have also admitted one prior court appearance, being on 21 March 2005 and that involved possessing a drug of dependence and possessing a controlled weapon, which I understand was a knife.  The Magistrates' Court on that occasion did not convict you.   So the Court did not regard those offences as particularly serious and I do not regard them as particularly serious or relevant from the point of view of sentencing you in this case.  It is a little troubling that that case involved you having a knife with you in your car, as I understand it, particularly in view of the nature of the offence to which you pleaded guilty of armed robbery, but I do not regard them, as I say, as significant in the sentencing process.

4       The prosecution has tendered a summary of prosecution opening, which is Exhibit A on the plea hearing.  That sets out a summary of the facts concerning the offence of armed robbery and I do not propose to read that again.  It was read to the court yesterday and your counsel, Mr Traczyk, indicated that the content of that document was not in dispute and that essentially that document could be treated as an agreed statement of fact upon which I could proceed to sentence. 

5       Suffice it to say that on 8 July your co-offenders put into effect a plan, which I accept was hatched the day before, which involved the male co-offender visiting the two victims, who were aged respectively 50 and 54 and were known by him and your other co-offender to have been intellectually disabled.  Whilst the male offender was visiting them, apparently socially, the female co-offender came to the door and, knocked on the door.   She was wearing a balaclava and carrying a hammer and a knife.  It is not part of the charge against you that she was carrying a knife and there is no evidence that you were aware that she was carrying a knife. 

6       She was let into the unit by the male co-offender and she used the hammer to hit the male victim on the leg and tap the female victim on the back of the head.  To summarise the matter very briefly, clearly putting them in great fear and enabling the female co-offender to make good her escape with a tin containing cash, about $1500, and a backpack containing three cameras, a mobile phone and other items, as well as the victims' passports.  You were waiting in the car not far away and you and the female co-offender made good your escape in that car.  The male offender had pretended to chase after your female co-offender and claimed that he had fallen over and been unable to apprehend her.  Of course that was all part of the plan and ultimately they met up at your residence and it seems that they took the money and left you with the remainder of the property, less valuable property.

7       You were arrested not long afterwards and interviewed by the police.  They  had come to your premises on 13 July 2011 and found some of the items associated with the offence, including the hammer that had been used.  They also found the point 22 ammunition round that was in a cardboard box beside a bedside table at your premises.  After you were arrested you were interviewed, you said that you had never seen the money tin that they found at your premises before and you made no other comment, so it is clear that you were not co-operating with the police at that stage, but you were then charged with the offence. 

8       

You failed to appear in answer to your bail in relation to that matter and were not apprehended by law enforcement authorities until

9 November 2012

when you were taken back into police custody.   On that occasion it seems that you decided to co-operate and you made a witness statement, which is Exhibit 1 on the plea.  That is a statement which seems to me to be a frank admission by you of your part in the events, which implicates truthfully the two co-offenders that were involved with you and played the parts that I have already indicated.  As a result of making that statement the police have charged your co-offenders and they are to appear at a committal hearing to determine whether they be sent for trial to his court on 31 May of this year.

9       

You were called to give some evidence by your counsel yesterday and you gave evidence on oath that you would co-operate in the future in giving evidence, if required to do so, at the criminal proceedings involving your

co-offenders and that you would give evidence consistent with the content of your witness statement.  I accept your evidence and accept that you are genuinely intending to maintain your co-operative approach and will give evidence, which no doubt will be significant evidence against your

co-offenders.

10      There is no victim impact statement in the case.  Perhaps not surprisingly, in view of the intellectual disability of the two victims, but they did make indications which are reflected in the statements that they made and are referred to in Exhibit.  The male said this whole incident made him feel very scared and the female said, "I don't have any money to do anything now.  I'm scared that he or she will come back and hit me again.  We are too frightened to go back to that place now.  We don't want to go back."

11      I am required under the law to take into account the effect upon victims of criminal offending, particularly victims of armed robbery and I propose to take that into account in determining the appropriate sentence in your case.

12      Turning to matters personal to you.  Your counsel provided me with a copy of the witness statement which you made on 9 November of last year.  In addition to inviting me to give proper effect to, or take proper account of your co-operation in making that statement, your admission, albeit somewhat belated, in November of last year of your part in the events and your promise to continue your co-operation by giving evidence in the future, invited me to take all that into account in reduction of sentence, and I propose to do so.  He also submitted that your conduct from the time you were apprehended in November of last year has indicated that you are genuinely sorry for what you did, for the part that you played.  As the lawyers put it, you are genuinely remorseful and I am happy to accept that submission.  I think that that coupled with your indication of your intention to plead guilty and your plea of guilty to this offence and your conduct do indicate that you are genuinely remorseful.

13      Your counsel also provided me with a report from a forensic psychologist, Mr David Ball, dated 29 April of this year.  That report is very helpful in a number of respects, in that it sets out something of your background, as well as making assessment and expressing opinions about your mental state and your personality and your prospects of rehabilitation, staying on the straight and narrow in the future and making good of your life. 

14      It is clear that you grew up in a traditional Turkish household and it seems that as a result of what I think I described yesterday and I will describe today as being a cultural clash with your parents, you left home at a young age and you became involved in one or more relationships with men that resulted in the birth of two children, both of whom are grown up now, or adults at any rate.  You had a difficult time, essentially coping on your own, but did cope pretty well until about ten years ago when you started getting involved with methylamphetamines.  It seems that that became a habit and, at least contextually, forms the backdrop to your offending conduct in this case.  It seems that you and your co-offenders had taken ice prior to the offence being committed and that you had been a regular user of ice in the period leading up to the offending conduct.  I suspect, although it is not clear, that you continued to use ice after you had been arrested for this matter and were using during the period between when you should have appeared in court and when you were ultimately apprehended last year.

15      It seems that you have recently met a Mr Akak, who has attended court today, and he came along yesterday.  You indicated to Mr Ball that this was your first serious adult relationship and that you had hopes that there would be a continuing relationship, a fulfilling long term relationship.  I have no reason to doubt that that will occur and it seems from Mr Akak's presence here that he is here to support you and that bodes well for your rehabilitation. 

16      What is clear from the report of Mr Ball is that, as I said to your counsel yesterday, you are a normal person.  It is unusual in these courts, we find that nearly everybody has a problem of one kind or another, they have got depression, or they have got this, or they have got that, well you seem to be pretty well balanced, except that you have been tipped by your involvement with ice.  Mr Ball takes the view that there is not only nothing wrong with you, but there is every reason to think that you will do all right in the future and you will stay away from trouble. 

17      I am not sure that you came entirely clean with him in terms of your drug use.  I may be wrong about that, but I suspect you played that down somewhat, perhaps because you thought it would not help you.  I am not sure that that was necessarily a wise thing to do, but I think I have correctly seen through that and that you are a person who will need considerable help, I suspect, in staying away from ice in the future, because it is an addictive drug and once you have had a taste and a prolonged taste, then it is always a lurking risk in the background.  However, it is, I think, nevertheless, valid to accept Mr Ball's assessment that your prospects of rehabilitation are good and your absence of any serious prior court appearances would suggest that this offending was out of character and was as a result of mixing with the wrong peer group and with people who themselves were clearly heavily involved with the use of ice.

18      You have, of course, been in custody for now a period of 177 days, not including today's date.  Whilst in custody, it is clear that you have been making use of your time, not only in terms of keeping yourself occupied, but your counsel provided me with what are called ASSAY reports, which are designed to report on any drugs of addiction that you may have ingested whilst you were in gaol.  Those reports are produced from urine samples that were taken, presumably randomly, at various stages during your period in custody.  One was on 13 November of last year, then there was
31 December, 15 February and 18 February this year.  In respect to all of the drugs which were tested, including amphetamines you consistently showed a negative result. 

19      It is not unknown of course for drugs to be available in prisons and I would be extraordinarily surprised if the drugs, including ice, were not available to those who want it in Dame Phyllis Frost Centre.  That is to your credit.  It is to your credit also that you participated in various courses that were open to you to not only improve your knowledge and make yourself a potentially more useful citizen, which I think your participation also demonstrates a willingness to help yourself and to rehabilitate yourself.  It is entirely consistent with the proposition that you are remorseful, it is entirely consistent with the proposition that you are good candidate for rehabilitation.

20      I have to take into account more than that though.  I have to consider the extent to which I need to express the denunciation of this court of the conduct that you engaged in, to punish you adequately for your role in the offending and to offer a measure of protection to the community, to the extent that that is warranted from you, to deter you from committing offences of this kind in the future, or from dabbling in methamphetamine again and putting yourself in a position where you are vulnerable to overtures from other people to engage in conduct of this kind.   Perhaps most significantly I have to pass a sentence that is properly aimed at deterring others from engaging in conduct of this kind. 

21      As I said in discussion yesterday, it seemed to me that ordinarily conduct of this kind, an offence which carries a maximum term of imprisonment of
25 years would warrant a sentence of imprisonment involving immediate incarceration and a sentence that would absolutely at the minimum, even with many of the mitigating factors that you put forward, be three years and upwards.   That is the kind of sentence that I would ordinarily impose for this offence.  I think that I would failing in my duty if I did not look to that kind of a sentence for offending of this kind as at least a starting point. 

22      What is important in your case is that I give proper effect to your co-operation and your promise to provide further co-operation in the future.  I do regard that as being significant, not just in terms of giving you a proper reduction in sentence, but also for encouraging others to give co-operation in other cases.  I think courts should be seen to be giving proper benefit, tangible benefit and that enables me to reduce the scale of sentencing, three years plus, plus, plus, plus, to something that reflects not only your co-operation and promise, or future co-operation, but the degree of remorse which that also demonstrates.

23      I also have to give proper effect to your plea of guilty which, itself, is consistent with your remorse but it is also deserving of a discount for the fact that it meant that your two victims did not have to come and give evidence and you have spared them that ordeal, no doubt it would have been an ordeal for them, and it also assists the administration of the court, reduces the cost to the community and generally facilitates the course of justice and I need to give you a proper discount for that also.  All of those other factors that I have mentioned of course have to be balanced against assisting you to the extent possible with your rehabilitation and I am very mindful of that. 

24      I did invite the prosecution to put forward what they would consider an appropriate range of sentences within which I should exercise my sentencing discretion.  They put forward a range of between 16 months and 24 months as the total effective sentence and between 9 months and 16 months as the period that you should have to serve before being eligible for parole.  As I indicated in discussions this morning, the implication of all of that is that they submitted that anything which did not involve you having to serve at least nine months' imprisonment would be a sentencing error.  Whilst that, I think, is entirely reasonable in all the circumstances and very fair and properly, I think, reflects the prosecution view that you should have a proper discount for your co-operation and promise of future co-operation and your remorse and pleas of guilty, they still stress that this is a very serious offence and having regard not just to the victims but the community as a  whole, a sentence that did not involve you serving at least nine months would be a sentencing error on my part.

25      I, on the other hand, raised the question of what was to happen to you after you had served your sentence.  I could not just throw away the key and say well, you know, the community is to be protected for a long time because you represent some risk to the community by reason of your vulnerability to methamphetamine.  It seemed to me that an order that would enable you to receive some help from the community would be warranted. 

26      You have heard various discussions that have taken place today about what I have in mind.  I have in mind imposing a sentence of eight months and
21 days' imprisonment which would require you to serve almost another three months, I think, along with a community corrections order which would require you to perform 100 hours of community work, unpaid community work and to participate in drug rehabilitation under supervision for a period of two years.  It seems that that has been explained to you and you have indicated agreement to participate in such an order. 

27      It was submitted to me this morning, having perhaps disclosed my hand, that that might be a bit on the harsh side if one was to look at the bottom end of the prosecution range, nine months is the starting point.  I indicated that I was not necessarily looking at the bottom end of the prosecution range as a starting point.  It seems to me that an appropriate sentence, just a pure sentence of imprisonment probably required a sentence above the minimum range that the prosecution had put forward, but within the range the prosecution put forward.  That is why I was proposing to include the 100 hours of community work which is further punishment and meets some of the other sentencing considerations than assisting you with your rehabilitation. 

28      I was inclined on that basis to dismiss what your counsel said to me this morning when he was urging me to look to a what some might regard as an even more lenient sentence than the one that I had in mind.  There was one thing that did persuade me and that is that if it be the case that you might be in jeopardy of losing your rented accommodation, in the event that you are still incarcerated well into July, then that would be unfortunate.  Doing the best I can to calculate the difference, it does not make a huge difference, I am prepared to make some allowance that goes some way, if not the whole way, in meeting that concern.  I think I can do that still consistent with my duty to punish you adequately and to pay proper regard to the other sentencing considerations.

29      For the offence of armed robbery, on 8 July 2011, I convict you and I sentence you to imprisonment for a period of eight months.

30      I order, apparently with your consent, that you be the subject of a community corrections order for a period of two years with a condition that you undergo 100 hours of unpaid community work, complete that, and that you be under supervision and that you be subject to such drug rehabilitation and testing and so on as directed by the Department of Corrections.  That is a shorthand way of saying what really is involved in the order.  The order will be drawn up in a minute and I will take you through the various conditions.

31      There are a number of core conditions which I need to read to you.  You must not commit, whether in Victoria or outside Victoria during the period of the order an offence punishable by imprisonment.  You must comply with any obligation or requirement prescribed by the regulations.  I am not going to read all those out to you, your counsel can do so if he thinks that that is useful to you.  You must report to and receive visits from the Secretary of the Department of Corrections, or his or her nominee.  You must report to the Community Corrections Centre specified in the order within two clear working days after your release from your period of incarceration.  I think the Community Corrections Centre to which you will be reporting is the one nearest your home, which I think is Broadmeadows, and Mr Travers will include in the order, that he is now drafting, the address, I think he has already got that, the address of a centre to which you will have to attend.  It is important you do not forget your obligation.  You must notify the Secretary of the Department or his or her delegate of any change of address, or employment during the period of the order within two clear working days of the change taking place.  You must not leave Victoria, except with the permission either generally or in relation to a particular case of the Secretary of the Department or his or her nominee.  You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

32      As I say, that order will be hanging over your head for a period of two years.  If you fail to comply with any of the conditions of the order, in particular if you commit any further offence punishable by imprisonment, then you will be almost certainly brought back before this court, very likely me, and I have a reasonably good memory, and dealt with, not just for the breach, which would make you liable for imprisonment for up to three months in itself, but also you would make yourself liable to be re-sentenced for this offence.   I have already given you some indication of the kind of sentences that I might have in mind otherwise than by reason of the various matters that I have referred to.  The terms of the order are quite onerous and you will have to comply with them and by consenting to participate in the order you are taking on that extra burden.

33      I declare that 177 days of pre-sentence detention to be reckoned as time served under the sentence that I have imposed and deducted from the sentence that I have imposed and order that that fact be noted in the records of the court.  That will mean, I think, that you will have to serve approximately another two months, it might be a little bit less than that, but it will enable your release in early July, or at or about the beginning of July.

34 I need, I think, to order, pursuant to s.5(2AB) of the Sentencing Act that your undertaking to give evidence in further court proceedings be noted in the records of the court.  You of course were told yesterday and I think you understand that if you are in breach of that undertaking and fail to live up to what you have undertaken to do, then you can be brought back and that may result in your serving an increased sentence as a result.  So you have locked yourself in, in that regard too.  That will be noted in the records of the court and the fact that I have taken into account your promise, you undertaking in imposing sentence upon you.

35      I have to deal also with the two related summary offences.  In respect of each of those offences, I convict you and discharge you, which means that there is no further punishment arising from those offences. 

36      But for your plea of guilty on this offence, I would have sentenced you to a term of three years' imprisonment with a non-parole period of two years.

37      I have already indicated that I will make the order for the disposal of the hammer that was used in the offence. 

38      I have now been provided with draft orders for the retention of the forensic sample that you have previously provided and I understand there is no opposition to that and I will make those orders in accordance with the draft. 

39      Whilst I am doing that, I am going to hand to you, through your counsel, the community corrections order in draft and he will take you through that and make sure that his happy that the contents reflects what I have said and you understand the content of it and the implications of breaching the order, the full implications of undertaking to participate in the order.  If you are happy with what is on that document, you will be asked to sign the document, I will then counter sign it and the order will be made. 

40      Would you like to approach your client, Mr Traczyk?

41      MR TRACZYK:  Yes.  Thank you, Your Honour.  Yes, thank you, Your Honour, that order is now signed by Ms Yuksel.

42      HIS HONOUR:  Thank you.  Mr Traczyk, I am just looking at the order and I should have looked at this perhaps it was all signed.  It says that she has to attend within two clear working days after the commencement of this order, which of course is today's date.  I think we have to probably amend that to within two clear working days of her release from prison.

43      MR TRACZYK:  Yes.

44      HIS HONOUR:  It is, I think, possible to calculate at least theoretically when that is going to be.  I think something needs to be put on the order, that is what I am saying, and Mr Travers is working out or has worked out what that will amount to.  It is eight months less 177 days that she has to serve.  Perhaps you would be kind enough perhaps also with Ms Ching to get on your calculators, if you have got one, and see if you can work out the date.

45      MR TRACZYK:  With respect, Your Honour, these things are never capable I think of precise calculation, because Your Honour will be aware the release date might be affected by things such as perhaps the prison being placed in lock down, which gives the prisoners the benefit of additional days.  These are all calculated by the authorities and have nothing to do with the court as such, so the precise release date, although theoretically one could say if nothing else happens we can say it is this, it can never be established with certainty.  Could I suggest, with respect, Your Honour, that all those requirements would be met by simply amending the order that she attend within two days of her release from custody.

46      HIS HONOUR:  That is what I had in mind.  Sometimes these things fight with the computer system and that is one of the difficulties in having the computer records reflect what is actually the order of the court.  Mr Travers is a bit of an expert on trying to marry the two not always consistent objectives.

47      MR TRACZYK:  Technology well beyond my capabilities, Your Honour, so we will leave it perhaps to Mr Travers to see what he can come up with.

48      HIS HONOUR:  Yes.  I think we are going to need a slightly amended order in any event and therefore it may be necessary for your client to re-sign the document.

49      MR TRACZYK:  Let us wait and see what the computer tells us we can do.

50      HIS HONOUR:  Yes.  Yes.  I mean if one was drafting it one might say calculate the prospective release date.  Shall we say, for example, 2 July, or within two days of such other date as she is released from custody.

51      MR TRACZYK:  Whichever comes first?

52      HIS HONOUR:  Whichever comes first.  I am sure the computer will not have something that is entirely compatible with that, but.

53      MR TRACZYK:  Perhaps get one of the barristers who specialises in contract law might be more familiar with these sorts of concepts.

54      HIS HONOUR:  Yes.  Mr Travers has suggested that the order commences, because the community corrections order does not encompass the term of imprisonment itself and runs, as it were, in parallel with it, that the order commences on 3 July and ends on 2 July of 2015.  Amongst other orders, your client is to attend within two days of being released from custody.

55      MR TRACZYK:  I think that is perfectly correct, because it was Your Honour's intention obviously to have her under supervision for two years, so.

56      HIS HONOUR:  I think that is quite a cunning way of dealing with the matter.  If she is released before that, well she has got to report within two clear days, but the order may not commence at the time she reports, I suppose, so there may be a slight disconnect there, but I am sure that that can be worked out.

57      MR TRACZYK:  Yes.

58      HIS HONOUR:  If your client is co-operating, I am sure that she will be able to work it out with Community Corrections.  Ms Ching, do you see any problem with that?

59      MS CHING:  No, Your Honour, that is suitable.

60      HIS HONOUR:  All right.  I will have to ask Mr Traczyk then to take the order to his client and get her to re-sign and I shall tear up the other order.

61      I have also signed the orders for retention of a forensic sample that you provided me in draft, Ms Ching.

62      MS CHING:  Thank you, Your Honour.  Your Honour, if I just take this opportunity to just point out one minor matter and probably just for completeness of the transcript, is that Your Honour referred to the maximum penalty for armed robbery as 25 years.  I have in my notes it being 20 years.

63      HIS HONOUR:  Twenty years, is it?  Yes.  Well there you are.  I looked at you I think when I said 25 because I was relying on my memory.

64      MS CHING:  Yes, my apologies.

65      HIS HONOUR:  I thank you for correcting that.  I think it was stated yesterday and I have just simply forgotten it.

66      MS CHING:  Thank you, Your Honour.  My apologies for not indicating earlier.

67      HIS HONOUR:  No, no, that is all right.  It does not make any difference to the sentence.

68      MS CHING:  Thank you, Your Honour.

69      HIS HONOUR:  Or my reasons for the sentence.  Thank you.

70      (Community Corrections order signed and acknowledged.)

71      (Disposal order signed and acknowledged.)

72      (Section 464ZF order signed and acknowledged.)

73      All right, well that is, I think, all of the orders that I need make.  Thank you for you assistance, both of you.

74      COUNSEL:  Thank you, Your Honour.

75      HIS HONOUR:  I will leave the Bench for a few minutes and allow you to depart gracefully and I will just come back and have another word or two with the school group.  Thank you.

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