R v Altinok

[2015] NSWDC 419

District Court

New South Wales

Medium Neutral Citation:	R v Altinok [2015] NSWDC 419
Hearing dates:	2 November 2015
Date of orders:	02 November 2015
Decision date:	02 November 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate sentence of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years. For the offence of drive while disqualified on the s166 certificate, the offender is fined $300 and disqualified from driving for 4 years. The matter is referred to the Drug Court
Catchwords:	CRIMINAL LAW – Sentence – Break enter and steal – Reckless wounding – Assault occasioning actual bodily harm – Destroy or damage property – Intimidation – Domestic violence - Drive while disqualified
Category:	Sentence
Parties:	The Crown Haci Sonfer Altinok
Representation:	Counsel: Ms A Hawkins – The offender   Solicitors: Director of Public Prosecutions – The Crown Phillip Ryan Solicitors - Offender
File Number(s):	2015/28452015/62024

SENTENCE

1. HIS HONOUR: Often enough offenders appearing for sentence in this Court seek to explain their criminal behaviour by their use of drugs, commonly these days the drug ice. Of course self-induced intoxication is not a mitigating factor but that does not mean that the circumstance where an offender was under the influence of drugs at the time of offending is irrelevant. The connection between use of drugs and offending is very strong indeed. If the offender can be persuaded to give up drugs then perhaps there is hope for his future. If he continues to use drugs then he will continue to go to gaol for longer and longer times.

2. He is only a young man, 18 at the time of the offences I have to sentence him for and 19 now. The lengthy sentence I am about to impose upon him will hopefully act as a deterrent, and will act as an incentive for him to give up the use of drugs. If he does then the chances of him being rehabilitated will be much higher.

3. His behaviour was, as Ms Hawkins who appears for him today accepts, reprehensible. It is a fundamental rule in sentencing that the sentence must reflect the objective value of the offender’s conduct, it is for that reason that lengthy sentences of imprisonment must be imposed.

4. The offender is to be sentenced for two separate types of offence committed on different days. The first occurred on 19 January 2015. On that occasion the offender broke into someone’s home and stole some things whilst there. Apparently he claimed to have done this because he was owed some money relating to drugs. What happened was that unbeknownst to the offender the mother of the person who owed him money was at home. The offender entered through an unlocked, but closed, front door. When he was confronted by the occupant, she asked what he was doing and he said “I’m looking for Recil” (she was the occupant’s daughter.) “Recil owes me $5,000”. He gave his name, or at least the name by which Recil knew him. The occupant watched as the offender began to go through the room in which her daughter slept and watched as he took a number of handbags, wallets and an Apple iPad. He then left saying, “I will return these when Recil pays the money.”

5. The occupant did not at first report these matters to police but eventually they became aware of them, when police interviewed the occupant’s daughter over a separate matter. Eventually he presented himself to Kogarah Police Station at the request of police where he was arrested and charged with break enter and steal.

6. It is important to note this is not the aggravated form of the offence. The offender stated, and the Crown accepts, that at the time he entered the premises he was not aware that there would be people present.

7. He was bail refused on this matter for a short period of time, two days in fact, before being released into the community. Despite the fact that he was on conditional liberty he then committed a whole series of much more serious offences involving his then girlfriend, Ms Erin Kontakos.

8. I am to sentence him for an offence of reckless wounding, assault occasioning actual bodily harm, destroy or damage property and intimidation. There is also a matter on a s 166 certificate of driving whilst disqualified.

9. I am sorry Mr Altinok I should have asked you earlier, do you admit that you were driving whilst disqualified, you plead guilty to that offence too?

10. OFFENDER: Yes your Honour.

11. HIS HONOUR: Right, thank you very much.

12. The relevant events occurred in the evening of 26 February 2015. The offender appeared to take objection to the fact that his girlfriend did not immediately respond to telephone calls or text messages. The offender’s then girlfriend, Ms Kontakos, and another person were in Ms Kontakos’ car. The offender was driving. He began to drive in an erratic manner, he would swerve, pull the hand brake up and change gears in a way, which he told the girlfriend, was an attempt by him to damage her gearbox. She asked him to slow down and told him that he was scaring her. He continually drove Ms Kontakos’ car through speed and red light cameras, clearly for the purpose of causing Ms Kontakos financial harm having to pay for his traffic offending, or at the very least require that she nominate him as being the offending driver.

13. His manner of driving, as I have said, scared Ms Kontakos and so that forms the basis of the intimidation offence. He also should not have been driving in the first place because he was a disqualified driver.

14. He was not satisfied with scaring her and attempting to damage her gear box, he then began to damage the interior of her car, breaking off the indicator stick and the windscreen wiper stick, burning the inside roof of the car with a cigarette lighter and pouring orange juice and water over the radio and electrics of the car. Having done that he continued his dangerous driving, continued to activate speed and red light cameras and told the unfortunate victim that he would be keeping her for 5 days.

15. At one stage he stopped the car and caused further damage to the interior of the car by breaking off the rear vision mirror and the side storage doors.

16. Things turned even nastier when the offender committed an offence of assault occasioning actual bodily harm when he picked up Ms Kontakos’ mobile phone and threw it at her face causing pain to her left eye, but he wasn’t satisfied with that. He then grabbed Ms Kontakos by her hair after she got into the driver’s seat and slammed her face into the steering wheel. Again he was not finished. Again he had not done enough. He removed his hand from her hair and started hitting her face and upper body with an open hand, hitting her at least 4 times. When she was seen at Bankstown Hospital later bruising was noted over the left side of her face.

17. Then we come to the most serious offence, one of reckless wounding. As Ms Kontakos drove her car with the offender in the passenger seat she could feel pain to her left arm as the offender was still hitting her. Then he said “you’re bleeding, go past my house”. It was apparent he had stabbed her arm with a pair of blue scissors. They went to the offender’s house where he attempted to treat the injury he had caused by putting pressure on the wound with a ripped shirt. She said “It hurts, I can’t lift my arm”. They then got back in the car, not surprisingly Ms Kontakos was scared and shaken by the offender’s actions but he offered her the scissors saying, “Take the scissors if you think I am going to hurt you again.” She did take them and, sensibly, threw them out the window.

18. She drove to Bankstown Hospital. She wanted to get treatment obviously, and she told him that she would not tell the authorities what really happened, but he did not want her to do that. He did not want her to get treatment and said he would get a first aid box from somewhere else. He said to her, “Drive to Canterbury Leagues Club and I will get money off my Mum.” Whilst they were doing that the offender said, “When I was stabbing you I was going to get your throat but I held back, in my heart I didn’t want to do it but in my head I did.”

19. As is quite common with offenders of this type he did not then accept any responsibility for his violent and dangerous behaviour. He told her and I quote, “You make me do this, you fuck with my head, you know I am sick.” That refusal to accept responsibility for violent conduct and blaming the victim is distressingly common in domestic violent offenders.

20. Eventually the offender gave Ms Kontakos her mobile phone back and she drove away from the car park at the Canterbury Leagues Club. She was able to do this because the offender believed that she would go to his house and get some shoes, but she did not, she went to pick up a friend, then to Bankstown Police Station and reported what had happened to her. She was taken to Bankstown Hospital and treated for a number of injuries. The bruising I have already mentioned over the left side of her face. By stabbing her with the scissors he had caused a large laceration, 1 centimetre in length with four superficial puncture wounds next to it with the laceration requiring two stitches. There was also bruising and swelling to her upper left arm. The offender was arrested on 27 February, that is the following morning.

21. It is suggested by the offender’s current girlfriend, Ms Sleiman, that this offending was out of character. The accuracy of that suggestion is difficult to determine. The offender has a criminal history and there were occasions of violence even before the increased use of Ice which led Ms Sleiman to describe the offender’s actions as being out of character. I am unable to find that it was only the use of Ice which led to the offender behaving the way he did.

22. The offender’s parents separated when he was relatively young and he was brought up by his mother and stepfather. His mother appears in court today in support of her son. He told the Corrective Services officer who prepared a pre-sentence report that he had a stable and supportive upbringing. He was a keen football player who was obviously highly regarded, he was given a scholarship into a sports high school but, at around the time he commenced high school, he began associating with negative peers and began offending and using illicit substances. Apparently there was some publicity given to this and he was frustrated when the scholarship was terminated when he was in year 8. The offender’s mother suggests that he became frustrated after being expelled and his circumstances appear to have spiralled downwards since that time. According to Ms Sleiman he has plans for the future. At one stage he was undertaking an apprenticeship in spray painting and hopes to return to that upon release from gaol.

23. The offender wrote a letter to me which expressed his remorse and indicated that he was now a changed man. Unfortunately he did not give sworn evidence to that effect and despite saying in the letter to me, “I am a changed man since then resisting all temptations in gaol.” It is apparent he has not resisted all temptations since going into gaol having been dealt with for drug possession whilst in custody and having committed other offences, intimidation, and failure to comply with routine, which suggests that if he is a changed man it has taken some time to achieve.

24. The offender pleaded guilty to all of these offences at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. These offences were clearly serious. As Ms Hawkins said all break enter and steal offences are serious and the community is rightfully concerned about those who would enter others’ premises simply to take material for their own financial advancement. The offences committed against Ms Kontakos were even more serious, reflecting a significant period of time when she must have been frightened, not only by the offender’s intimidating behaviour but also by his actual violence prompted, I repeat, simply because she appears not to have answered his calls or text messages when he wanted her to.

25. People who live in domestic relationships with others are entitled to be protected from their partner’s violent behaviour. It may well have been something of a dysfunctional relationship but that scarcely justifies the offender’s behaviour. Women living in dysfunctional relationships are entitled to the protection of the law just as much as women who live in more appropriate relationships. A significant component of general deterrence has to be built into the sentences which I will impose upon the offender and personal deterrence also is important. I have taken into account the offender’s relative youth, he was only 18 at the time of committing these offences and is 19 now. The law treats him as an adult but it has to be recognised that upon turning 18 young men do not suddenly develop the maturity of a fully grown adult. I will take very much in the offender’s favour his relative youth at the time of his offending.

26. I have discussed with Ms Hawkins when the sentences of imprisonment which I will impose should commence. The offender has been in custody since 27 February 2015 but three months of that time was taken up with a sentence for assault committed on, as it turns out, Ms Kontakos. I will therefore commence the sentence I will shortly announce on 27 May 2015 to reflect the fact that I have chosen the length of the sentence for these new matters with the principle of totality in mind. I will impose an aggregate sentence of imprisonment but I will say something about how I would have approached matters had I imposed separate sentences. I would have not imposed concurrent sentences for all offences committed on 26 February 2015. They were completely discrete acts of criminality, even though they did occur as part of the one course of conduct. Separate sentences, or at least sentences which are not totally concurrent with each other, are necessary to reflect that circumstance.

27. Were it not for the imposition of an aggregate sentence I would have imposed the following sentences: For the break enter and steal offence 2 years imprisonment; for the reckless wounding offence 2 and a half years imprisonment; for assault occasioning actual bodily harm, destroy or damage property and the intimidation 1 and a half years imprisonment.

28. Instead I impose an aggregate sentence consisting of a non-parole period of 2 and a half years to have commenced on 27 May 2015 and a head sentence of five years. The non-parole period will thus expire on 26 November 2017 on which day the offender is eligible to be released to parole.

29. For the drive whilst disqualified matter he is fined $300 and disqualified from driving for a period of 4 years.

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Decision last updated: 06 March 2017