Director of Public Prosecutions v Yuksel, Volkan

[2012] VCC 1863

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-02348
CR-12-01603
CR-12-01025

DIRECTOR OF PUBLIC PROSECUTIONS

v

VOLKAN YUKSEL

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JUDGE:	Her Honour Judge Millane
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2012
DATE OF SENTENCE:	30 November 2012
CASE MAY BE CITED AS:	DPP v Yuksel, Volkan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1863

REASONS FOR SENTENCE
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Catchwords: Criminal law – plea – theft – robbery – possession of a general category hand gun without a license – handling stolen goods – armed robbery – related summary offences – parity.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Rooney	Office of Public Prosecutions
For the Accused	Mr J. Shaw	David Barrese & Associates

HER HONOUR:

Introduction

1       Mr Yuksel, you can take a seat, and I'll read out my remarks, and then I will ask you to stand when I come to sentence you.

2       You have pleaded guilty to 5 charges of theft, the maximum penalty for each of which is 10 years' imprisonment; one charge of robbery, the maximum penalty for which is 15 years' imprisonment; one charge of possession of an unregistered general category hand gun without a license, the maximum penalty for which is 600 penalty units or 7 years' imprisonment, one charge of handling stolen goods, the maximum penalty for which is 15 years' imprisonment; and one charge of armed robbery, the maximum penalty for which is 25 years' imprisonment.

3       You have also pleaded guilty to 4 related summary offences, transferred from the Magistrates' Court by consent. These comprise one charge of going equipped for stealing, the maximum penalty for that one is 2 years, one charge of possess article of disguise, that also has the same maximum penalty; one charge of possession of a cartridge ammunition, the maximum penalty for that is 40 penalty units; and one charge of dealing with property suspected of being proceeds of crime, and that also has a maximum penalty of  2 years' imprisonment.

Antecedents

4       You are 35 years of age.

5       You have admitted a relevant criminal record consisting of three court appearances on 5 September 1997, 24 May 2000 and 18 January 2011, respectively. The first of these involved going equipped to steal and attempted theft of a motor car charges, for which you were placed on an adjourned undertaking for 12 months and ordered to pay $300 to the Court Fund. I was told that you do not recall the circumstances giving rise to these offences.

6       The second appearance involved a conviction and a $450 fine for possessing a regulated weapon. This, you recalled, was an ornamental samurai sword given to you by a cousin and found in the boot of your vehicle by police  investigating a theft at Toyota, your place of employment at the time.

7       The third appearance involved another dishonesty offence, namely theft of a GPS from a motor vehicle, for which you were placed on a further adjourned undertaking for the 12 months to 18 January 2012 and you were ordered to pay $300 to the Court Fund.

8       As my summary of the circumstances of the current offences show, they were all committed in May and September 2011, during the operational period of the further adjourned undertaking.

The circumstances of the offending

9       The prosecution's opening (as amended) was read into transcript and it was tendered without objection as far as I recall.

10      I do not propose to repeat in full the detailed summary. However, a copy of this, marked “Attachment A”, with information identifying the victims or their whereabouts removed, will be attached to my written reasons for sentence.

11      As to Charge 1, theft of a motor vehicle: on Thursday, 12 May 2011, after entering a warehouse in North Melbourne, you removed a set of car keys and stole a delivery van parked in the warehouse. On your arrest, the keys to the vehicle were found in your possession.

12      As to Charge 2, theft of a motor vehicle:

some days later on Sunday,

15 May 2011, having parked the stolen delivery van at a Shell petrol station in Fawkner, you stole a Honda Civic vehicle left with the keys in the ignition by the elderly owner whilst he paid for fuel. This theft was captured on CCTV footage.

13      When the vehicle was subsequently located, it had been torched. No formal victim impact statement was made. However, I was told that, apart from the inconvenience caused by the theft of his vehicle, the victim had not suffered a financial loss because he had been reimbursed by his insurer both for the loss of the vehicle and the cost of a replacement hire car over a two week period.

14      As to Charge 3, theft: two days later, that is two days after the Honda Civic incident, on Tuesday, 17 May 2011, you drove the Honda Civic to a gaming venue in Caroline Springs and, using pliers to cut the metal chain securing this to the counter of the cashier's desk, you stole a coin donation tin containing money.

As to Charge 4, robbery:15       on Monday, 23 May 2011, at approximately 11:30am the middle-aged male victim, who at the time was waiting for an ATM located in Barkly Street Footscray to dispense his money, was pushed by you to the ground. You took $400 in cash from the machine. You were seen entering and speeding off in a gold coloured Toyota Tarago driven by a female co-accused, Danielle Holder. This crime was also captured on CCTV footage.

16      An aggravating feature of this offence is that it involved the use of violence against the victim. Whilst the informant was not able to contact him to ascertain whether he wished to make a victim impact statement, I think it reasonable to accept that, due to the circumstances in which it occurred, this was probably a very unsettling incident for this victim.

17      As was your right, you elected not to comment when interviewed by police on 13 June 2011 in respect to the 4 charges I have mentioned.

18      As to Charge 5, theft of a motor vehicle: using the Automatic Numberplate Recognition system, at approximately 7:50pm on 23 May 2011, police intercepted a silver Toyota Tarago which had been reported as stolen in the previous week. The vehicle was being driven by your co-accused without the use of the keys. You were located in the back and, subsequently, acknowledged that you knew the vehicle had been stolen.

19      The victim of this theft has declined to make a victim impact statement, indicating that she has been compensated for her loss by the insurer.

20      A search of the vehicle revealed a number of items which relate to two of the other charges contained in the indictment and to three of the related summary offences. For instance:

·     as to Charge 6, theft: police found a Nokia N95 Mobile telephone in your bag, which they later ascertained had been stolen from the owner on or about 23 May 2011;

·     as to the rolled up possession of unregistered general category hand guns charge, Charge 7: police found one black imitation handgun and one silver imitation handgun;

·     as to summary Charge 7, going equipped for stealing: police found a large red-handled set of bolt cutters, pliers, a multi-tool and other tools;

·     as to summary Charge 9, possess article of disguise: police found a black balaclava;

·     as to summary Charge 11, deal property suspected of being proceeds of crime: police found an empty Guide Dogs Victoria donation box.

21      Subsequently, during a record of interview, among other things, you admitted knowing that the vehicle had been stolen and placing the mobile phone in your bag.

22      When police later searched your residence, they found additional items, namely a case of cartridge ammunition which constitutes the related summary charge of possessing ammunition without a licence, summary Charge 10, and a wallet containing personal cards in the name of another male victim, and cash, actually, I think, which constitutes the handling stolen goods charge, Charge 8.

23      As to the gun and ammunition offences, you apparently later admitted that you did not have a firearm licence. As to the wallet found in your home, you told police that this had been given to you by a person called 'Yogi', whilst also indicating to them that you believed it had been stolen.

24      As to Charge 9, armed robbery: shortly after stealing the cash from the ATM in Footscray, on 23 May 2011, you robbed another male victim. This victim was loading bags into his vehicle, a Toyota Yaris, parked in the secure underground car park of an East Melbourne apartment complex. After the victim declined your offer of “a hand”, you twice demanded that he “put everything in” his car. At the time you were wearing a hat and sunglasses and, whilst the victim at first believed you were not serious, he changed his mind once he saw that you were carrying what he perceived to be a dark, shiny pistol in your right hand.

25      You demanded the victim's wallet and frisked him and, before driving off in his vehicle, in a threatening voice, you instructed the victim to move away from the vehicle.

26      At approximately 12:05pm, as police attempted to intercept the vehicle, the imitation firearm used by you in the armed robbery was thrown from the vehicle. When arrested you were observed to be wearing gloves, sunglasses and a baseball cap. Police found a 'crack pipe' on you and the victim's wallet in your pocket. The prosecution tendered photographs of both the imitation firearm and the wallet.

27      Clearly the victim believed the weapon to be real and, no doubt, this weapon added to the surprise and shock reported by him following this episode.

28      As was your right, later the same evening, you gave a 'no comment' record of interview.

Gravity

29      Now I want to say something about the gravity of the offending.  As I have already noted, an aggravating feature of these offences is that each was committed in breach of the undertaking given in January 2011 to be of good behaviour.

30      

You were remanded in custody on 23 May 2011. However, on 1 June 2011, you were bailed by a Magistrate on a number of the offences committed on

23 May 2011, namely the theft of the silver Toyota Tarago, Charge 5, the theft of the Nokia mobile, Charge 6, the handguns offences, Charge 7, the handling of the wallet and cards offence, Charge 8, the going equipped offence, summary Charge 7, the possess disguise offence, summary Charge 9 and the ammunition offence, summary Charge 10.

31      On 13 June 2011, you were charged and remanded in custody on the theft and robbery charges committed between 12 and 17 May 2011 and on the morning of 23 May 2011, Charges 1 to 4 inclusive. I was told that at around this time, three warrants were also executed on summary police matters, and you were again bailed on 17 June 2011 but failed to appear in the Magistrates' Court on 15 September 2011 on these summary matters.

32      

As we now know, the armed robbery, Charge 9, was committed on

23 September 2011

, within days of the failure to appear, whilst on bail. You were charged and remanded in custody for the further offending on

23 September 2011

.

33      Re-offending during a period of bail increases the seriousness of the armed robbery offence and, as submitted by the prosecution, this conduct requires cumulation of the sentence for armed robbery on any other sentence imposed, unless otherwise directed by me. Of course, I am still required to ensure that the total sentence imposed for these multiple offences is just and appropriate to all of the offending

34      

On 30 November 2011, you were remanded to 1 December 2011 for the three summary police matters, which were eventually dealt with by way of fine on

7 February 2012

.

35      Subsequently, on 20 June 2012, you were granted bail on the armed robbery charge, one condition being that you reside at the residential drug and alcohol treatment facility operated by Remar Australia at Nyora, South Gippsland.

36      

The correspondence tendered from Remar and the submissions made during your plea in mitigation indicate that, some days prior to the plea hearing, on

9 November 2012, you were exited from the rehabilitation program because you had previously relapsed and you had breached, among other rules, the day leave requirement rules by staying out overnight.

37      

In effect, you were in breach of your bail conditions when, between

9 November 2012

and the date of the plea hearing, you resided other than at the Remar facility.

38      The theft, robbery and armed robbery offences each evidence planning and method, in that you targeted victims and specific property. The robbery and armed robbery offences either involved actual violence or the threat of violence and in respect of the armed robbery offence, you wore a disguise.

39      The imitation handguns were possessed in association with other criminal activity, even though it is not alleged that these firearms were used in any of the offences committed between 12 May 2011 and 23 May 2011.

40      I was not provided with the value of the stolen property which included the three motor vehicles, the donation tin (which contained an undisclosed sum of money) and the mobile phone, nor was I provided with the value of the vehicle and/or property taken during the armed robbery offence. However, for the purpose of assessing the gravity of each of these offences, I have allowed for the fact that valuable property was taken and that the cash consisting of $400 and the contents of the donation tin were also taken.

41      My assessment of the gravity of the most serious offences is that the circumstances of the robbery and the armed robbery offences and, as they are known, the impact on each victim, place these at the lower end of the scale for these types of offences.

Parity

42      Now I want to say something about the issue of parity.  On 30 November 2011, your then 31 year old co-accused was dealt with summarily on four charges. Her first charge related to the theft of the silver Toyota Tarago she was driving on 23 May 2011 with you in the back, Charge 5 on your indictment. Her second and third charges related to the going equipped for stealing offence, namely the bolt cutters and other tools found in the vehicle, your summary Charge 7, and the handling stolen goods offence, namely the personal cards and wallet of a male victim later found at your residence, summary Charge 8. Her fourth charge related to the firearm offence, although, unlike the firearm offence to which you pleaded guilty, namely Charge 7 on the indictment, it is not clear whether your co-accused also pleaded to a rolled-up charge involving two firearms.

43      In any event, on this occasion, your co-accused was convicted and placed on an adjourned undertaking for 12 months on the condition that she comply with the lawful treatment recommendations of the Royal Women's Hospital until the birth of the child she was then expecting. She was further punished through the cancellation of her licence for 6 months from 30 November 2011.

44      On 21 February 2012, your co-accused pleaded guilty and with conviction, she was placed on a 12 month adjourned undertaking by a Magistrate on one charge of theft in relation to the ATM robbery also committed on 23 May 2011, Charge 4 on your indictment, and she was ordered to pay $400 in compensation. The basis of theft charge was that Ms Holder acted in concert as the driver of the vehicle you entered after robbing the victim and only you were held responsible for the violence used against the victim.

45      Taken at face value, the sentences imposed on your co-accused in respect to the offences committed together appear lenient. It was submitted on your behalf that there should be parity in the sentences imposed because, in each instance, culpability was very similar. Your counsel also drew attention to your co-accused's extensive and relevant criminal record between October 2000 and November 2005.

46      However, in my view, various factors justify disparity between your sentences. They include:

·     the 3½ year gap between Ms Holder's last appearance/conviction in November 2007 and her reoffending on 23 May 2011;

·     the lesser offence to which Ms Holder pleaded guilty in respect to the theft of the cash from the ATM in Footscray, not to mention your responsibility for the violence to which the victim was subjected;

·     the fact that these offences were committed by you in breach of an adjourned undertaking and form part of a more extensive course of offending conduct by you between 12 and 23 May 2011; and

·     the likely impact of Ms Holder's advanced pregnancy and the requirement for medical treatment on the sentences imposed in November 2011 and February 2012, respectively.

47      In due course, I will explain how each sentence imposed is constructed.

Personal Circumstances

48      I want to say something about your personal circumstances, which were summarised by your counsel and, to some extent, they were also explained through the material tendered on your behalf. This included a letter from the executive director of Remar Australia, dated 11 November 2012, extracts from the rehabilitation facility's website, a bundle of certificates which confirm completion of drug and alcohol and other courses whilst held on remand, a statement from the Department of Justice, dated 3 February 2012, which confirms that whilst being held at the Metropolitan Remand Centre you were appointed to work as a Unit Yard Billet and, lastly, the clear results reported from three urine sample screens provided by you whilst being held on remand, on 23 October and 5 November 2012 and on 16 March 2012.

49      You were supported in Court by a number of family members. I was told that your parents were absent because they were observant Muslims who had travelled to Mecca and they were in Turkey on the date of the plea hearing.

50      I was told that you were born in Melbourne to Turkish parents both of whom migrated to Australia prior to your birth in 1977, and due to their ill health, your parents each receive a disability pension.

51      You have one older and one younger sibling. Both are married and employed.

52      As far as I can tell, other than some recreational drug use from the age of 16, you had a good upbringing in a religious household although, until your recent period on remand, you had not embraced your religion.

53      You were married in 1999. Your children, a son, who suffers from a rare chromosomal condition, and a daughter, were born in 2000 and 2003 respectively.

54      I was told that after finishing year 12, you completed only one year of study to qualify as a laboratory technician before deciding to give up study to earn money. In the 10 years until 2007, you worked in various roles with Toyota and, in a second job, as a security guard working at pubs and nightclubs.

55      By your account, your life changed in 2007 after you purchased and commenced operating a kebab van business next to a bottle shop. It appears that you worked very long hours in the business, as well as continuing your work as a security guard. The business was very profitable, and with the money earned, either before or after the sale of the business within a year of its purchase, you report that your drug usage increased and you commenced associating with the wrong crowd. This behaviour apparently contributed to the breakdown of your marriage in 2008 which, in turn, led to greater drug abuse.

56      I was told that after your marriage failed, you still owned your own home. However, you had not worked in the four years between 2008 and 2011 and you were apparently still living off the proceeds of the sale of the business.

57      

By your account, during this time your drug of choice was 'ice'. Indeed, you told an undercover operative, who was investigating a number of the offences committed on 23 May 2011 that you regularly smoked 'ice'. This statement and the fact that following the commission of the armed robbery offence on

23 September 2011

you were found carrying a 'crack pipe', suggest, as claimed, that you probably were addicted to ice when you offended in May and September 2011. You have conceded, however, that your addiction and drug use at the time are not mitigatory of your sentence.

58      As I have already mentioned, you were first remanded in custody for some 15 days between May and June 2011. Subsequently, you were remanded for a further 272 days until your release on bail on 20 June 2012, on the condition that you reside at the drug and alcohol rehabilitation facility operated by Remar Australia.

59      According to its website material, the optimum period for participation in the rehabilitation program operated by Remar is 24 months. You, however, participated in this program over a period of only approximately 5 months prior your discharge for breaching behaviour. Of course, for the 9 months before entering this program, you were on remand, where you had completed various drug and alcohol courses and where, by your account, you had been drug free.

60      It appears that you remain in a relationship with your co-accused, who gave birth to your daughter on 11 April 2012. I was told that your partner and daughter live with her mother. You were on day leave and visiting your partner and child when you breached the conditions of the Remar program. I was told that your partner was also a drug user, although your counsel informed the Court that he did not have instructions about her current usage.

61      These circumstances indicate that reformation remains problematic. Accordingly, notwithstanding your reported motivation to rehabilitate and the outstanding offer of employment with a friend, the risk of relapse and drug-related offending probably remains high.

62      In mitigation of your sentence, you rely on what the prosecution has conceded was, in all the circumstances, a plea of guilty at the earliest possible stage. You are thereby entitled to a substantial sentencing discount because the plea of guilty has facilitated the course of justice and spared witnesses' attendance at contested hearings and the community the cost of these hearings.

63      Your plea is also an indicator of a level of remorse, as was your expression of remorse through your counsel. In this regard, I accept that you are probably very sorry for the predicament in which you have placed yourself and that, despite your inability to maintain abstinence when in the community and to comply with the requirements of the rehabilitation program, your conduct on remand and your participation in the rehabilitation program evidence a desire to address the underlying causes of your offending.

Sentencing Principles

64      The prosecution called for an immediate term of imprisonment consisting of a head sentence of between 3 and 5 years' imprisonment and a non-parole period of between 2 and 3 years' imprisonment. The latter, it was submitted, would accommodate supervision by the Adult Parole Board of your ongoing rehabilitation in the community.

65      I was taken to the Sentencing Snapshots for Robbery and Armed Robbery offences for the period 2006 to 2011. During this period 110 people were sentenced for robbery and 943 were sentenced for armed robbery. 

66      In respect to robbery, imprisonment terms ranged from one month and 29 days to 4 years and 6 months while the median sentence of imprisonment was 2 years, the most common length of imprisonment imposed was one year to less than 2 years and the average length of imprisonment imposed was from one year and 8 months to 2 years and 6 months. Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period was one year and 6 months and the most common non-parole period imposed was one year to less than 2 years.

67      In respect to armed robbery, the median length of imprisonment was for 3 years, the most common length of imprisonment was 2 for years and the average length of imprisonment was for 3 years and 2 months.  Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period fixed was 2 years and the most common non-parole period imposed was one year.

68      These statistics are informative.  However, the sentence imposed today must reflect your circumstances and the circumstances of the offending known. The sentence must also address the concept of equal justice as between you and your co-accused, to the extent that it can do this, and provide for some cumulation as between the different offences involving different victims and, in doing so, avoid a disproportionate result.

69      Taking into account of the various aspects of this case, I have exercised my discretion to order some concurrency, notwithstanding the statutory presumption that the sentence for the armed robbery committed during a period of bail be cumulated on the sentences for the earlier offending.

70      On your behalf, it was conceded that the armed robbery offence warranted the imposition of a custodial sentence, although it was submitted that the 9 months already served on remand for this offence should be treated as time served, with the imposition of a Community Correction Order to provide an opportunity for your ongoing rehabilitation in the community.

71      The prosecution, correctly in my view, submitted that, apart from strongly denouncing the robbery and armed robbery offences, any sentence imposed must act to deter and protect the community from drug-related offending in the community. Importantly, both these offences represent a serious escalation in your drug-related offending.

72      The sentences relating to the theft of a motor vehicle on two separate occasions during May 2011 (Charges 1 and 2), further drug-related offending, must also emphasise deterrence as a sentencing consideration. I was satisfied that each offence warranted the imposition of a custodial sentence.

73      However, the third theft of motor vehicle offence (Charge 5) and the further offences, committed on 23 May 2011, namely the theft of the mobile phone (Charge 6), the possession of the imitation firearms (Charge 7), the handling of the stolen goods (Charge 8) and the summary charges (Charges 7 and 9), which relate to the other items found either in the stolen motor vehicle or at your home are part of a series of offences of similar character. For this reason, I propose to impose an aggregate sentence of imprisonment in place of a separate sentence of imprisonment in respect to any of these , I think it's 6 in number, offences.

74      Whilst it is important to denounce and deter theft involving monies collected for charity and the donation boxes used to collect money (Charge 3 and summary Charge 11), I was not satisfied that either of these offences called for the imposition of a custodial sentence. In each instance a conviction and fine is appropriate. The possession of the ammunition offence only attracts a fine, which, in this case, should also emphasise deterrence as a sentencing consideration.

Sentence

75      Please stand, Mr Yuksel.

76      On one charge of armed robbery (Charge 9), you are convicted and sentenced to 3 years' imprisonment. For the purpose of your sentence, I treat this as the base sentence.

77      On one charge of robbery (Charge 4), you are convicted and sentenced to 6 months' imprisonment.

78      On each of two charges of theft of a motor vehicle (Charges 1 and 2), you are convicted and sentenced to 3 months' imprisonment.

79      On one charge each of theft of a motor vehicle, theft of a mobile phone, possession of imitation firearms, handling stolen goods, going equipped to steal and possessing an article of disguise (Charges 5, 6, 7 and 8 and summary Charges 7 and 9), you are convicted and sentenced to an aggregate sentence of 4 months' imprisonment.

80      On one charge of theft of a donation box containing money (Charge 3), you are convicted and fined $500.

81      On one charge of possessing ammunition without a licence (summary Charge 10), you are convicted and fined $500.

82      On one charge of deal property suspected of being proceeds of crime (summary Charge 11), you are convicted and fined $500.

83      I direct that 2 months of the sentence imposed on charge 4 and one month of each of the sentences imposed on charges 1 and 2 and 2 months of the aggregate sentence be served cumulatively on the sentence imposed on the armed robbery charge, Charge 9. The sentences are otherwise concurrent.

84      The total effective sentence is 3 years and 6 months' imprisonment, with a non-parole period of 2 years and 4 months' imprisonment, and the sentence starts today.

85      I need to declare pre-sentence detention.  Has a figure been agreed?

86      MR SHAW:  Yes. Your Honour, the figure that Your Honour would have been provided previously was 287 days, bail was revoked on 12 November.

87      HER HONOUR:  Just give me the figure today.

88      MR SHAW:  The figure that's been agreed is 305 days.

89      HER HONOUR:  305 days.  Does that include today?

90      MR SHAW:  No.

91      HER HONOUR:  So it's 305 days not including today.

92      MR SHAW:  That's correct.

93      HER HONOUR:  All right.  And you agree to that, do you?

94      MR ROONEY:  I do.

95 HER HONOUR: Pursuant to s18(4) of the Sentencing Act, I declare that the period of 305 days, not including today, is to be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be recorded in the records of the court.

96 Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty a sentence of 4 years and 5 months' imprisonment with a non-parole period of 3 years and 1 months' imprisonment would have been imposed.

97 At the plea hearing, pursuant to s.464ZFB(1) of the Crimes Act, the prosecution sought an order for the retention and placement on the database of the forensic sample, and that had already been obtained, and you had consented to that on 23 September 2011.  I have acceded to their application, and in doing so I have taken into account the seriousness of the circumstances of the offending, your prior record, the fact that the application is by consent, and the interest the public has in retaining that sample, and that order has been signed.

98      I have also signed two forfeiture orders and a disposal order which were sought at the plea hearing, and they were not opposed, I believe, and I have signed those orders.

99      I think I am right in saying that the first order was by consent and the others were not opposed, is that correct?

100     MR SHAW:  They're all by consent, Your Honour.

101     HER HONOUR:  All right.  I confirm that they were by consent, for the forfeiture order and the disposal orders.  Are there any other matters I need to clarify, or add up, or discuss?

102     MR SHAW:  No, Your Honour.

103 MR ROONEY: Your Honour, in relation to the theft of a motor vehicle charges, s.89A of the Road Safety Act applies.

104 HER HONOUR: Road Safety Act. You mean the Sentencing Act?

105 MR ROONEY: Apologies, Your Honour, it is the Sentencing Act. It's s.89(4), which is on p.246 of the copy that I have.

106     HER HONOUR: Cancel the licence.  All right.  I'll hear from you, Mr Shaw, in relation to that matter.  It appears that that would relate to which charges?  There was no submission made about this, I might add, at the plea hearing, so which charges are we talking about?  Charges?

107     MR ROONEY:  1, 2 and 5 on the indictment.

108     HER HONOUR:  Do you agree with that, Mr Shaw?  So in relation to those charges, does your client hold a licence?

109     MR SHAW:  He does, as I understand it.

110 HER HONOUR: All right. Then pursuant to s.89A of the Sentencing Act 1991 in relation to charges 1, 2 and 5 on the indictment, Mr Yuksel's licence is - - -

111     MR SHAW:  Before Your Honour makes an order on that, certainly that wasn't raised at all at the plea hearing.

112     HER HONOUR:  I know, and that's why I'm asking you.

113     MR SHAW:  Yes.  I thought Your Honour was about to make an order cancelling his licence.  In my submission it ought not be made.  The sentence that has been handed down is adequate, so that nothing was said about it at the plea hearing.

114     HER HONOUR:  It must in the case of conviction, I must do it.  I'm required to do it.

115     MR SHAW:  Sorry, in relation to theft of the motor vehicle, I beg your pardon.  I accept that, yes.

116     HER HONOUR:  It's all very well for you to now start talking about anything else.

117     MR SHAW:  No, I accept that one.

118     HER HONOUR:  But the point is I am required to do it.

119     MR SHAW:  Yes, but any other suspension, for example, offences committed in connection with a motor car, I would oppose anything beyond what's mandatory.

120     HER HONOUR:  Well, it's the law.  “It can cancel or suspend.”  I'm happy to suspend the licence.

121     MR SHAW:  Yes.  Can I just take some instructions on the status of his licence?  That's the only thing I'm not - - -

122     HER HONOUR:  Well, you said he held one.

123     MR SHAW:  Can I just double check that, Your Honour?

124     HER HONOUR:  Please do.

125     MR SHAW:  Thank you for that, Your Honour, I just wanted to check that.  He does have a current licence, as I thought.

126     HER HONOUR:  What I propose to do is, as I set out, pursuant to that provision, suspend his licence for 6 months.

127     MR SHAW:  If Your Honour pleases.

128     HER HONOUR:  Do I have to indicate the date from which that is suspended?

129     MR SHAW:  I suppose it would be appropriate, otherwise - - -

130     HER HONOUR:  I will suspend it from the date of this order.

131     MR SHAW:  From today?

132     HER HONOUR:  Yes.

133     MR SHAW:  That would be appropriate, Your Honour.

134     HER HONOUR:  Do you have anything to say about that, Mr Rooney?

135     MR ROONEY:  No, Your Honour.

136     HER HONOUR:  Mr Yuksel, pursuant to that provision, it is a mandatory provision, and I am required to either cancel or suspend, but in the circumstances, I propose to suspend your licence for 6 months from today's date, and that means that you are disqualified from driving during that period, which I expect won't trouble you because you are in custody.  But in any event, does that cover everything that we need to cover?

137     MR ROONEY:  Yes, Your Honour.

138     MR SHAW:  Yes, Your Honour.

139     HER HONOUR:  Please remove Mr Yuksel.  Thank you for your assistance today, counsel.

140     MR ROONEY:  If Your Honour pleases.

141     MR SHAW:  Thank you, Your Honour.

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Attachment “A”

Prosecution's summary

INFORMANT …

1. At approximately 3.30 p.m. on Thursday 12^th May 2011 the accused entered a warehouse in … Street, … via an open roller door. Once inside the warehouse, the accused located a set of keys and has stolen a delivery van that was parked inside the warehouse. The white coloured Citroen Berlingo, registration …, had been left unattended inside the warehouse for a short period of time. The accused then sped out of the building away from the premises. The keys to this vehicle were subsequently found in the possession of the accused when he was arrested. [Charge 1 Theft of Motor Vehicle]

2. On Sunday 15^th May 2011, the accused has driven the stolen Citroen Berlingo delivery van to a Shell petrol station on …. After parking the van, the accused approached an unattended blue coloured Honda Civic, registration …, got into the driver's seat and drove out of the petrol station. The 72 year old owner of the Honda Civic had just refuelled the car and had gone inside to pay, leaving the keys in the ignition. This theft was captured on CCTV footage. [Charge 2 Theft of Motor Vehicle]

3. The Honda was subsequently located burnt out and completely torched. While the victim of the stolen Honda was paid out by the insurance company, he still suffered a lot of grief being without his vehicle due to medical issues.

4. On Tuesday 17^th May 2011 at approximately 12.40 p.m. the accused attended at '…' gaming venue on .... The accused was driving the Honda Civic that he had previously stolen from the Shell petrol station two days prior. Inside the gaming lounge, the accused stole a money donation tin which contained money. The donation tin was located on the cashier's desk and was secured to the counter by a metal chain. When the desk was unattended, the accused cut the chain using a pair of pliers. He then hid the tin inside his jacket and left the venue. This theft was captured on CCTV footage. [Charge 3 Theft]

5. At approximately 11.30 am on Monday 23^rd May 2011, 58 year old victim … was in …  running some personal errands. Mr … went to the Bendigo Bank ATM in … to withdraw some money. When he arrived, there was an elderly man already using the ATM and another man, the accused, standing in line waiting to use the machine.

6. After getting cash from the ATM the older man walked away. The accused started to pat down his pockets, as if he was looking for his wallet. The accused then got out of line and walked away. Mr … then used the ATM machine and withdrew $400 cash from his bank account. The machine gave Mr … his card back first, so he placed his card back into his wallet and waited for the cash. When the cash was dispensed the accused pushed Mr … to the ground. The accused grabbed the money out of the machine and ran away. Mr … chased the accused and yelled out for help. The accused got into a gold coloured Toyota Tarago driven by a female co-accused (HOLDER – see below) and sped away. This robbery was captured on CCTV footage. [Charge 4 Robbery]

7. With respect to charges 1 to 4 inclusive, the accused was interviewed by informant D/S/C … on the 13^th June 2011. He made no comment having had legal advice.

INFORMANT …

8. On Monday 23^rd May 2011 at approximately 7.50 pm police using the Automatic Number Plate Recognition system intercepted a vehicle on Wurundjeri Way, Docklands. The vehicle was a silver Toyota Tarago registration … which had been reported stolen the previous week.

9. The driver of the Tarago was the accused's girlfriend, co-accused Danielle HOLDER. Police directed HOLDER to 'stop the engine'. Police realised that there was no key in the engine column but the engine was still running. HOLDER removed keys from the centre console, switched off the engine and stepped out of the vehicle. The accused YUKSEL was located lying down in the back of the vehicle. The accused knew that it was a stolen vehicle. [Charge 5 Theft of Motor Vehicle - This charge proceeds on the basis that the accused was using the Toyota Tarago motor vehicle knowing that it was stolen].

10. Both accused were placed under arrested.

11. Police conducted a search of the vehicle and located –

(a)in the accused's bag, a Nokia N95 mobile telephone which was subsequently identified as being stolen from …. [Charge 6 Theft - This charge proceeds on the basis that the accused knew that the Nokia mobile phone did not belong to him when he placed it into his bag].

(b)One black imitation handgun and one silver imitation handgun [Charge 7 Possession of an unregistered general category handgun – a rolled up charge]

(c)A large red-handled set of bolt cutters, pliers, a multi-tool and other tools [Summary charge 7 Going equipped for stealing]

(d)A black balaclava [Summary charge 9 Possess article of disguise]

(e)An empty Guide Dog's Victoria donation box [Summary charge 11 Deal with property suspected of being proceeds of crime]

12. The accused was conveyed to the police station for interview where he admitted that he knew the car he had been intercepted in was stolen (ROI Q 36, 37, 168), and that the bag where the stolen phone was located was his and that he had put the phone in it (Q 136 to 139).

13. Police attended at the accused's residential premises in Sunshine and searched his room. There they located –

(a)a case of cartridge ammunition [Summary charge 10 Possess ammunition without a license]

(b)a wallet with personal cards in the name of … [Charge 8 on the Indictment, Handle Stolen Goods]

14. The accused told the police that the wallet and personal cards had been given to him by someone called 'Yogi' and that he believed that it was probably stolen (ROI Q 205, 213). He admitted he held no firearms license (ROI Q 241). The accused made a mixed comment and no comment interview, because he wanted to wait until he had had legal advice but he didn't at that time have a lawyer.

15. Undercover operatives were used during the course of the investigation in relation to the … charges. During the course of speaking with an undercover operative, the accused said that he smokes 'ice' regularly. [No charge – accused's personal circumstances]  

INFORMANT …

16. On Friday 23^rd September 2011, then 26 year old victim … was at his residence, an apartment complex in …. At 11.40 am Mr … went to his car, a blue Toyota Yaris with registration …, which was parked in a parking bay in the secure underground car park.

17. Mr … got into his car and started the engine to warm it up. He then began to load two bags into the boot, one containing an IBM laptop computer.

18. While loading the bags Mr ... noticed the accused emerge from behind a concrete wall adjacent to his car. He noticed that the accused was wearing a hat and sunglasses. The accused asked Mr ... if he needed a hand. Mr ... declined the offer. The accused then said, “put everything in your car”. Mr ... then went to get into the driver's seat and the accused repeated in a more threatening voice, “put everything in your car”. Mr ... asked the accused if he was serious and the accused said he was. The accused was standing a metre away from him. Mr ... realised that the accused had what Mr ... believed was a dark, shiny pistol in his right hand.

19. The accused demanded the victim's wallet while frisking him. The accused then said in a threatening voice, “get away from the car”. Mr ... moved aside and the accused got into the driver's seat, and drove away. [Charge 9 Armed Robbery]

20. Mr ... called 000. He was surprised and a little bit shocked.

21. The vehicle description and registration, and offender description were broadcast over the police communications. The offender was also said to be still in possession of a hand gun.

22. At approximately 12.05 pm in Carlton police observed the stolen vehicle and activated the police vehicle lights and sirens in an attempt to intersect it. The vehicle travelled at a slow rate of speed. Before it stopped, police observed an object being thrown out of the front passenger side window. The vehicle stopped and the accused put his hands on his head.

23. Police approached the vehicle and produced their firearms. The accused was arrested. He was observed to be wearing gloves, sunglasses and a baseball cap.

24. The accused was searched. The victim's wallet was found in his pocket. Police also found a 'crack pipe' on the accused (used for smoking methylamphetamine, or 'ice'). The imitation firearm which had been used in the armed robbery and thrown from the vehicle was found just a short distance away.

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