DPP v Yildirim

[2011] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 0006 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS

v.

ONUR YILDIRIM

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JUDGES:	WARREN CJ, BUCHANAN JA AND SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2011
DATE OF JUDGMENT:	28 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 219
JUDGMENT APPEALED FROM:	R v Onur Yildirim (Unreported,  County Court of Victoria, Judge Thornton, 17 December 2010)

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CRIMINAL LAW – Director’s appeal – Sentence – Sexual penetration of a 16 or 17 year old child – s 48 CrimesAct 1958 (Vic) – Two counts – Four years and six months’ imprisonment with non-parole period of two years and six months’ imprisonment – Whether sentence manifestly inadequate – Sentence within range available to sentencing judge – DPP v Karazisis [2010] VSCA 350 – Whether sentencing judge erred in giving weight to possible deportation of Respondent upon release from incarceration – Guden v The Queen [2010] VSCA 196 – Sentencing judge erred by giving weight to possible deportation of Respondent in absence of requisite evidence as to quantum of that risk eventuating – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr T Marsh with Mr P Smallwood	Victorian Legal Aid

WARREN CJ:

1. On 3 November 2010, the respondent pleaded guilty to two counts of sexual penetration of a 16‑year‑old child under his care, supervision or authority contrary to s 48(1) of the Crimes Act 1958 (‘the Act’). 

2. On 17 December 2010, he received a total effective sentence of four years and six months' imprisonment with a non‑parole period of two years and six months' imprisonment. The maximum penalty for an offence under s 48(1) is ten years' imprisonment. The respondent was also registered as a serious sex offender for 15 years.

3. The Crown now appeals his sentence on two grounds.  First, the sentence imposed in respect of each count, and as a totality, as well as the non‑parole period fixed by the sentencing judge were manifestly inadequate.  Second, the sentencing judge erroneously took into consideration the prospect that the respondent might be deported at the conclusion of his term of imprisonment.

   The respondent

4. The respondent is a Turkish national.  He was 26 at the time he committed the offences.  He is now 27.  Although he came to Australia in 2006 on a student visa, he resided in Australia on a skilled migration visa at the time of these offences.  The respondent qualified in industrial electronics in Turkey, but despite completing an advanced diploma of hospitality management in Australia in 2009, he has only been able to obtain limited employment since he arrived here in 2006.

5. The respondent has no criminal history in Australia or Turkey nor does he have any substance abuse problems.  He has a stable family background and a supportive fiancée whom he met in Australia and intends to marry in the immediate future.

6. After his arrest, he was subjected to a psychological…