R v Ceylan
[2020] VCC 1644
•9 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Indictment No. J10776874
CR-19-01251
CR-19-01255
| THE QUEEN |
| v |
| SEDAT CEYLAN |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2020 & 17 September 2020 |
| DATE OF SENTENCE: | 9 October 2020 |
| CASE MAY BE CITED AS: | R v Ceylan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1644 |
REASONS FOR SENTENCE
---CRIMINAL LAW – PLEA – Obtain financial advantage by deception – Obtain property by deception – Possess drug of dependence – Attempt to pervert the course of justice – Substantial sum from a major financial institution – Offending which strikes at the integrity of the economic system – Seriousness of attempt to pervert the course of justice – Offence against the justice system – Crimes Act 1958 ss. 81 &82 – Drugs, Poisons and Controlled Substances Act 1981 s. 73 – R v Buscema [2011] VSC 206 – Beljulji v The Queen; Semaan v The Queen [2017] VSCA 279 – Middleton v The Queen [2018] VSCA 23, referred to.
SENTENCE – Serious offending – Recidivist offended – Substantial record of prior dishonesty – Poor prospects of rehabilitation – High level of moral culpability – Relatively early plea – Some evidence of remorse – Significant delay – Significant salience of specific deterrence– Seriousness of Attempt to pervert the course of justice – General deterrence and denunciation paramount – Effect of the COVID-19 pandemic – Sentencing Act 1991 – Pun v The Queen [2017] VSCA 219 – Maddocks v The Queen [2011] VSCA 20 – R v Zotos [2008] VSCA 82 – Camara v The Queen [2015] VSCA 20 – DPP v Oksuz (2015) 47 VR 731, considered – Total Effective Sentence – 5 years and 3 months imprisonment – Non-Parole Period 3 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Mandie | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D. Sheales | Challenge Legal Lawyers |
HIS HONOUR:
1Sedat Ceylan, you have pleaded guilty to one charge of obtaining a financial advantage by deception[1]; one charge of obtain property by deception.[2] The maximum penalty for these two offences is 10 years' imprisonment. You have pleaded guilty to two charges of possession of a drug of dependence.[3] One of those charges being possession of methylamphetamine, maximum penalty, if not for the purposes of trafficking, one year's imprisonment or 30 penalty units. The second relating to possession of cannabis, maximum penalty five penalty units, if not for the purpose of trafficking.
[1] Contrary to s 82 of the Crimes Act 1958
[2] Contrary to s 81 of the Crimes Act 1958.
[3] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981
2You have also pleaded to one charge of attempting to pervert the course of justice[4], maximum penalty 25 years' imprisonment, and one uplifted summary charge of committing an indictable offence on bail. Maximum penalty, three months' imprisonment or 30 penalty units.
[4] Contrary to the Common Law.
Circumstances of the Offending
3The circumstances of the offending were set out in the Summary of Prosecution Opening dated 3 September 2020, was read in open court, and was not contested by you; I incorporate it reference.[5] You are to be sentenced on the factual basis set out in the opening.
[5] Exhibit A on the plea.
4There was a complicated background to the two fraud offences relating to your family and extended family and a used car dealership that you were involved in, and Mehmet Yaydemir and his company, which had provided finance for your used car dealings.
5The complainant in the first count was the Commonwealth Bank of Australia (‘CBA’) and the offence is alleged to have occurred on 14 April 2014. The complainant in the second count was the ANZ/Esanda Finance and the offence is alleged to have occurred on 30 July 2015. You are of Turkish extraction and had previously been involved in the used car trade and finance broking although you were unemployed at the relevant time.
6Your late father operated a car dealership at 988 Sydney Road, Coburg, called Suleyman Motors. In 2010 you and your then wife, Ozlem, purchased the property next door at 900 Sydney Road. You and your father were refurbishing the property, but this was incomplete before he passed away on 28 January 2014. Your sister, Gonca Ozkocak, who was unemployed at the time, held a motorcar trader's licence and had planned to open a car yard prior to her father's death. After his death you and your sister, Gonca Ozkocak, continued to operate your father's yard, using his licence. You were ineligible to hold an LMCT licence but a Mr Adas, who had had previous dealings with your father's company and operated a used car dealership known as Ultimate Auto Gallery located in Somerton, he understood that your sister was the owner of the business.
7You and your sister, Gonca Ozkocak, approached him with a proposal that the two of you had the customers, cars and finance to buy and sell cars but did not have the relevant licence, and they asked to use his car yard to do so with some profit to you. The funds would be put through with some profit to him. The funds would be put through his account and the cars would be transferred to your customers. The proposal was to deal in high end Mercedes used cars.
8Another member of the community, Mr Mehmet Yaydemir, operated an excavation company from his home address in Hallam, and during 2013 he had provided loan moneys to your sister, Gonca Ozkocak, whose name was on the title of one of the Sydney Road properties. In around April 2014 you advised Mehmet Yaydemir that you and your sister had applied for a loan and had been refused and it was agreed between you and Mehmet Yaydemir that he would apply for a loan on your behalf for the purchase of a Mercedes vehicle, being an S350 sedan, that was later to be sold at a profit.
9On 8 April 2014 Ultimate invoiced the business of Mehmet Yaydemir for a total of $286,000. The invoice was for a vehicle registration No.AAU099[6] to the company and Mehmet Yaydemir's family trust with delivery to be to Mehmet Yaydemir's company. The invoice was provided to the CBA to obtain finance for the purchase of the vehicle. The invoice was entirely false. This is an uncharged act.
[6] Invoice, Depositions p. 418
10On 11 April 2014 Mehmet Yaydemir went with you and your sister to the CBA in Endeavour Hills to fill out the application form for a new loan in Mehmet Yaydemir's name for the vehicle. The CBA already had mortgage securities over properties owned by Mehmet Yaydemir and thus was able to approve the loan. The false invoice relating to the vehicle was provided to the CBA with the loan application and based on this deception by you and your sister, CBA approved the loan. The deception was that there was an actual vehicle to be delivered to Mehmet Yaydemir. Ultimate Auto Gallery received $286,000 from the CBA on 14 April 2015. On 15 April Ultimate withdrew $235,598 at the Fawkner CBA and trafficked this amount to Gonca Ozkocak's account, which she deposited on the same day, and then immediately withdrew $226,622.30.[7]
[7] OZKOCAK Account, Depsositions p. 205
11Mr Adas and Ultimate retained the balance of $25,079 despite it being the property of Mr Yaydemir's company. The actual vehicle, the subject of the fraud, was located at a Mercedes dealership in Fairfield. A few months later it was sold to a genuine purchaser. These events constitute Count 1.
12The second deception count relates to another Mercedes, an SLK Roadster, registered No.VH939. The charge involves you obtaining $74,235.36 from the ANZ Bank and, Esanda, an ANZ subsidiary, using the false name of Bayram Birsoz, to obtain a loan for that amount. The false documents included a false driver's licence, a false payslip from an employer named, 'Logistics Plus', and false registration papers that were all provided to Esanda. Mehmet Yaydemir was used as a guarantor on the loan and listed as your employer, but he knew nothing of the transaction.
13The fraud was achieved by you making an application in the false name for the purported purchase of the vehicle. The loan was for $74,235.36, of which $67,639.68 was to be disbursed to Gonca Ozkocak as the supplier of the vehicle and the balance for insurance and you signed in the name of Birsos.[8] You completed a direct debit request on 30 July 2015[9] and an insurance confirmation advice and a private sale invoice listing your sister, Gonca Ozkocak as the seller. A false payslip, false employment details with a false credit history were also provided as well as a false roadworthy certificate in the name of your nephew, Burak Ceylan. The vehicle was in fact registered in the name of a gentleman living in Maribyrnong. He told police that a male purporting to be known as Bursos and another male, Burak, had acted suspiciously in the attempted purchase of the vehicle. A phone number linked to you had been provided to the proposed seller.[10] Gonca Ozkocak received $67,640 on 30 July 2015 and immediately withdrew it. The total moneys advanced of $74,235.56 have not been recovered.
[8] Loan Contract, Depositions pp. 451-458
[9] Direct Debit Request, Depositions p. 460
[10] Vicroads registration certificate, Depositions p. 482; Vicroads registration records, Depositions p, 486; Statement of Monica PHAM, Depositions p. 34; Statement of Shaun WINKWORTH, Depositions pp. 2100-2101
14In September 2015 Mehmet Yaydemir attended the police, complaining that he had provided loans to you for the purpose of purchasing cars and had not been repaid and the cars have remained in his name and he was getting the fines. The police commenced an investigation and on 22 March 2018 Victoria Police executed a warrant at your home address in Pascoe Vale. Upon searching the premises, they located a small amount of methylamphetamine and approximately three grams of cannabis in the kitchen. These finds give rise to the two drug possession offences. At the time you were on bail for other drug possession and unlicensed driving charges and this gives rise to the summary offence of committing an indictable offence on bail.
15Police undertook an extensive record of interview with you. The questioning related to the two vehicles, the subject of the fraud charges, but also to other vehicles and your overall relationship with Mehmet Yaydemir. You admitted possession of the cannabis and said it helped you relax[11], and you would also use methylamphetamine. You admitted the circumstances of the loan for the first Mercedes that was put through the account of Mr Adas and then into Gonca's account. You said at the time that Mr Adas of Ultimate Auto Gallery was innocent, because you needed a dealer to operate through. You said at the time that you had no savings and were struggling financially after your father's death. You admitted that you attended the bank to sign the documents with Mehmet Yaydemir and said that you, 'Probably deceived the bank or the finance company', and, 'I knew it was wrong'.[12]
[11]Record of Interview (‘ROI’) Q&A 28, Depositions p. 1445
[12] ROI Q&A 626 – 627, Depositions p. 1522
16In relation to the second Mercedes you stated that you recalled the false name and said:
'I think that got settled. I couldn't find Bayram. I was gambling at the time and I think I gambled it'.
You confirmed you did not pick up the vehicle because you knew they were sitting on a Mercedes worth $286,000 and the PPSR would show no one had paid for it.
You said in relation to the money obtained from the second transaction, 'I gambled that. I'll be straight out but everything was fucked, and I thought I might save the day'.[13]
[13] ROI Q&A637 – 692 Depositions pp. 1523 - 1530
17When shown documentation relating to the loan contract you admitted it was your handwriting and confirmed the phone number that had been provided to the ANZ investigators.
18When summarised, you confirmed that your total profit from the vehicles was $100,000 to $180,000 and that went towards saving the family properties. You had no savings or assets and no income apart from handouts from your family. You were shown Crown Casino documents showing buy-ins of $317,000 at the time of the offending and you had put the money into a Crown account and drew it out. You said you had put the money into a Crown account and drew it out after paying or giving $200,000 to Mehmet Yaydemir. The police later charged you and other family members, and you were remanded in custody. The full chronology is set out in the Crown opening and I incorporate that by reference.[14]
[14] Above n 5.
19In June 2018 you were sentenced to 30 days' imprisonment and fined for a number of driving offences. Charges of ecstasy and methylamphetamine possession were adjourned on condition that you undertake drug counselling. You made an application for bail and you denied bail by Beach JA on indictment 29 June 2018.[15] At that stage you were facing seven charges of: fraudulently inducing persons to invest money; obtaining property by deception; and six charges of negligently dealing with the proceeds of crime; and 13 charges of making a false document. The amount involved was alleged to be in excess of $500,000. You were also charged with the drug possession charges and the uplifted summary charge on the current indictment.
[15]Re Ceylan [2018] VSC 361
20You were required to show a compelling reason to obtain bail and you failed to do so. The committal proceeding in relation to the matter was due to occur in the Magistrates' Court on 8 October 2018. Charge 5 reads as follows, that;
'Between the 21st and 22 July, with intent to pervert he course of justice, you did a number of acts that had a tendency to pervert the course of justice in that you directed Aytac Ceylan to telephone the witness, Mehmet Yaydemir, and tell him to change his police statement or not to come to court in October when the charges were listed.’[16]
You told witness, Mehmet Yaydemir to change his statement or not come to court during the same phone call and you directed Ozlem Ceylan to record the conversation between Aytac Ceylan, you and Mehmet Yaydemir. You then directed your sister, Gonca, to digitally edit the recording with the intention that it be presented in court in October. That is the charge.
[16] Charge 5, Indictment No: J10776874
21The events giving rise to that Charge 5 arose out of Mehmet Yaydemir attending the police on 24 July 2018, recording that he had been contacted by Aytac Ceylan, the former wife of your brother, Nejat. Mehmet Yaydemir recognised her voice. Police then retrieved the calls from the Ravenhall Prison system and confirmed that numerous calls from the account of another inmate had been made to the home number of Aytac and diverted to your family members, including a call at the time alleged by Mehmet Yaydemir.
22The relevant call with Mehmet Yaydemir was organised between you, your former wife, Ozlem, and Aytac, directing Aytac to call Mehmet and tell him the following. You had also directed her to change her phone number to silent and got her to ring Yaydemir before telling him the following:
(1) that you were in gaol because of the statements he made,
(2) that he will get no money while you are in gaol,
(3) that he must change his statement or not attend court in October and;
(4) that the phone call was to be on loudspeaker so that he can hear and that Ozlem is to record the conversation on her phone.[17]
[17]Depositions pp. 1834 - 1835
23At 1.51 pm Aytac phoned Yaydemir and conversed as directed. He did not agree, and you then came into the call. In the next eight minutes the two of you argued back and forth, with you reiterating that you were in gaol because of him. He alluded to the facts that he needs to pay $750,000 back the Commonwealth Bank because of you and you made the following comments to him in that call:
'I have been inside for six months. Have a heart, brother. There are two conditions. Either you will come to court and say it was a commercial agreement or you will not attend court at all. My being in prison won't bring the money back to you. Don't talk over the phone and today you did not talk to me. I did not contact you, okay, because it is not allowed', and you repeated, 'I did not talk to you. That's one. The second thing is if you are coming - either you say what happened, I mean say the thing favourable to me or don't come at all. One of the two, Mehmet, brother. Do you understand? Talk if you are going to say something favourable to me. If you are going to say something against me, what's the use, Mehmet, brother, what's the use of ruining me'.[18]
[18] Transcript of translation of Turkish phone calls (from ARUNTA Call Recordings); Depositions pp. 1836 – 1839; YAYDEMIR Statement 2, Depositions pp. 1707 - 1708
24After the call ended you called Ozlem at 2.01pm and asked her to play the recording to you. She states to you that she saved the recording and you then directed her to take the call to Gonca and to forward the recording via email to your girlfriend, Vera Gazzard, along with Gonca and your nephew, Burak. At 2.31pm you called your girlfriend, Vera Gazzard, and told her that you needed to get a copy of the recording and you told her that she would be emailed a copy. Later, that afternoon, 3.15pm you phoned Gonca from the account of another inmate, a Mr Ozalp, and discussed recording and editing of the recording, and Gonca referred to her personal computer for editing and the following comments were made by you, Gonca and Aytac, who was also on the call, where you discussed the editing, including,
'I want $700,000. Why are they missing', to stay in, and Gonca said, 'Because that part of the phone, when you stop it, stays there', and she talks about forwarding it to Ozlem's phone and asking whether you wanted to leave it with her today. And then you said, 'Let's not put the part, "I didn't talk go you". Cut the thing, 'Don't come to court at all". Let the other part be in there, "You need to come to court and say it was a commercial agreement.[19]"'
You then discussion with Gonca about the bits that would be deleted and not deleted, and then there is further conversations between you and Gonca, and you then tell her that, 'Gonca, all you need to do is get it translated but it needs to be away from you[20]', and you tell her to get a version on Ozlem's phone.
[19] Transcript of translation of Turkish phone calls (from ARUNTA Call Recordings); Depositions 1850 - 1857
[20] Ibid
25At 5 o'clock that day you called your girlfriend again and tell her that Mehmet has called you and then you proceeded to tell her about the contents of the call, saying, 'It's fucking gold. It starts off with saying, "Well, what do you want?" I think that's enough to bury him. I'm going to get Burak to put it on a USB and then as a safety precaution to email it to you and to himself'. And you say, 'Get Tansem to do a transcript of it in English immediately'.[21] The call was in Turkish.
[21] Transcript, Depositions pp. 1888 - 1908
26The next day you called her again and said, 'You'll want to surprise the informant and the prosecution team with this new evidence'. And then you say, 'I'll probably get an extra charge for talking to the witness, which is a slap on the wrist really, but their whole case falls over. It's going to be a surprise on the morning of the committal, the first day. We just go bang, recording. So on8 October on the morning they have got Mehmet sitting in a room, ready to give evidence, their star witness, and we drop the bombshell on them'.[22] You then call Ozlem again and she plays the recording and the recording was forwarded to Burak and he liaised with an unknown male, who edited it.
[22] Ibid pp. 1909 - 1918
27The prosecution opening goes on to note that the recordings were in Turkish and they'd been translated into English and the call between you and Gonca changed from English to Turkish when you spoke about incriminating topics. So that is the summary of Charge 5.
The seriousness of the offences.
28It is convenient to first deal with the first and second counts. Your counsel did not dispute the seriousness of these counts, submitting that they were moderately serious. The first count involved obtaining a substantial sum from a major financial institution with the unwitting assistance of Mehmet Yaydemir. Your explanation for the offending was that you were in financial difficulties at the time with the unfinished car yard project, and you were being pressed by another financial institution that had a mortgage on your mother's property. You were trying to save the family properties and the banks were closing in and the sheriff had changed the locks on the property at 988 Sydney Road. The wider family unit was in turmoil and you were juggling all these financial pressures.
29In addition, you said there was the extortionate interest rates that were allegedly being charged by Mehmet Yaydemir. Some of the money was to pay the mortgagee and Mehmet Yaydemir had received $90,000 of the loan, the first loan, in cash. In relation to the second loan in the record of interview you said you were gambling at the time. You suggested that the name of Bayram was your drug dealer. You said you had been contacted the ANZ Bank and you had offered to repay the money but had been unable to do so. You contrasted the second loan with the first loan in that the first Mehmet Yaydemir had substantially benefitted.
30Both charges are regarded as serious. As Ms Mandie the learned Crown Prosecutor submitted, both involved seeking to defraud financial institutions. Both involved the creation of false documents. In relation to Charge 2 they also involved the creation of false documents as to employment, roadworthiness, and the use of identity documents of Birsos. They were both elaborate frauds. The conduct involved the assistance of other people including your sister, Gonca, and third parties such as Mr Adas. The offending involved a number of well-planned and intentionally dishonest and deceptive steps with the assistance of other family members to achieve your ends.
31Frauds against financial institutions strike at the integrity of the economic system. Those institutions rely on the honesty of applicants. The additional checks involved in seeking to avoid dishonest activity by borrowers are imposed on all honest borrowers and thus borne by all the borrowing community. The two offences here were approximately 12 months apart. While the CBA had sufficient security from Mehmet Yaydemir to recover some of the money in relation to Charge 1, the balance was not recovered. In relation to Charge 2 the $74,235.56 was not repaid.
32The overall quantum of the offending here, $350,000, makes the two charges considered as a whole, in the upper mid-range of seriousness. In discussions during the plea your counsel submitted that a sentence of between three- and four-years’ imprisonment for this offending was appropriate. At another point he said the sentence for Charge 1 should be three years, and for Charge 2 should be two years. Ms Mandie, consistent with the authority that she was bound by, did not expressly respond as to the suggested range but submitted that the parties were not that far apart as to the characterisation of the seriousness of the offending.
33I do not regard myself as bound by the suggestions of your counsel but have had regard to them along with all the other sentencing considerations canvassed. In sentencing you for these two offences, given your prior criminal history that I am about to refer to, considerations of specific deterrence, general deterrence and protection of the community are very salient.
Seriousness of the Attempt to Pervert the Course of Justice Charge
34Most of the plea hearing was devoted to arguments as how to characterise the seriousness of Charge 5. It was not disputed that the offence itself is a serious offence, carrying a 25-year maximum, and the seriousness of the offence has been emphasised repeatedly by the Court of Appeal. It is said to strike at the heart of the administration of justice, involves offenders seeking to deter witnesses from giving evidence and truthful evidence, and undermines the ability of the Crown to secure convictions and thus bring offenders to justice.
35In the case of Buscema, Nettle JA, as he then was, set out some factors to be considered in assessing the nature and gravity of this offence.[23] Of the matters referred to, the following are relevant here:
(a) the consequences for which the offending was calculated to avoid. In this case, as I have noticed, you were seeking to have the key prosecution witness either not attend at the committal or change his testimony in order to disrupt the prosecution of two serious fraud charges.
The second factor; (b) the time for when the conduct was maintained and whether it was repeated or persisted in. Here there were phone calls and activity over a period of two days;
(c) whether the deception involves some other person, either as an accomplice or as a victim. In this case your conduct involved other family members and the complainant himself, Mr Yaydemir;
…
(e) whether the offence was spontaneous or premeditated. Here the offence was premeditated. You were speaking in Turkish and moved in and out of that language. You have just been denied bail. You made more than one phone call and you even acknowledged in the course of the phone calls, or one of them, that you knew what you were doing was wrong.
[23]R v Buscema [2011] VSC 206 (‘Buscema’)
36It was the prosecution's submission here that this offence fell into the higher range of seriousness. This was on the basis that Mr Yaydemir was a key prosecution witness and you were facing serious charges. There was a clear threat that he would get no money if you remained in gaol and therefore he had to change his statement or not attend the committal. Your conduct was brazen in making the phone calls whilst in prison and you were also aware of the wrongfulness of your conduct by conversing in Turkish and making reference to its wrongfulness in discussions with the family members. You specifically directed him as to what you wanted either in his evidence or for him not to attend at all. You co-opted three family members to assist you and to edit the recording of the earlier phone conversation and thus there was planning and premeditation involved as you directed the conduct involved to create the proposed recording and editing it as to what was to be used.
37Your counsel strongly disputed the prosecution characterisation of the offending and referred to a number of cases where the relevant sentence had been months rather than years. Your counsel's submission was that you were only to be sentenced for the conduct alleged in the particulars identified in Charge 5 with Particulars A and B to be considered separately from Particular C. Further, in characterising the conduct, he submitted that it occurred only over the two-day period alleged. There was no subsequent follow-up, and this made it different from cases where there was repeated conduct and threats which have characterised a number of the other cases involving this offence.
38I accept the distinctions made by your counsel and, in particular, that the offending ceased with the final phone call, and there is no evidence that any further action was taken in relation to the recording. Further, in contrast to a number of these types of cases there was no threats or violence associated with your conduct.
39In order to consider the seriousness of the offending here, it is necessary to look at the overall context. At the time of the offences indicated by the learned prosecutor you were facing 29 charges, including deception charges, to a total quantum of $549,000.95 and numerous false documents charges. You had numerous prior convictions, having served sentences of imprisonment for similar offending. You had just been denied bail by the Supreme Court and thus face the prospects of remaining in custody until a trial and a prison sentence thereafter.
40Mehmet Yaydemir was to be the principal witness against you. This was the context in which you made the phone calls and requests, the subject of the charge. I regard the fact that a substantial number of the charges that you were facing at the time have, at the discretion of the Crown, subsequently been withdrawn as irrelevant to considering your moral culpability and the seriousness of the offence here. The central thrust of your counsel's submission in relation to the conduct was that the proper characterisation of the request that was being made directly to Mehmet Yaydemir and via Aytac was directed to requesting him to tell the truth rather than the untruths that were in his original police statement.
41During the plea hearing your counsel took the court through a number of references in prior civil proceedings between Yaydemir and your sister, Gonca, designed to lead to a characterisation of the discussions as discussions between two businessmen, creditor and debtor, where he had already recovered moneys in court proceedings. I was also taken to a number of references in the committal transcript where Mr Yaydemir had made statements inconsistent with his earlier plea statement. I accept the submissions of the learned Crown Prosecutor that I should not accept your submission that Yaydemir should not be regarded as a witness of truth, that is not evidence from the transcript of the phone calls. You do not ask him to resile from any false testimony. The context of the calls is you asking him effectively to completely change his statement in order to undermine the prosecution case or not to attend at the committal hearing at all.
42Having considered the competing submissions as to how to characterise the offence, and applying the factors referred to in Buscema, I regard this as a serious example of the offence perpetrated by you as a person bearing high moral culpability due to your significant prior convictions and lack of character. I have not found any particular cases directly comparable for the purpose of sentencing. However, I have noted the comments in cases such as Semaan[24], Buscema[25] and Middleton[26] as indicating the seriousness with which this offence must be considered.
[24]Beljulji v The Queen; Semaan v The Queen [2017] VSCA 279 (‘Semaan’) [43]
[25] Above n 23, [16]
[26]Middleton v The Queen [2018] VSCA 23 [66] also note [107] – [108] (‘Middleton’)
Criminal history
43You have admitted a significant criminal record containing numerous convictions for dishonesty offences, in this court and in the Magistrates' Court. You have also been sentenced for a number of driving offences in the Magistrates' Court as well as for drugs and firearm offences. Your first appearance before the courts was in 1993 when aged 23. You faced a charge in the Magistrates' Court of obtaining property by deception for which you were fined $750 without conviction. There was an ex parte hearing before the Benalla Magistrates' Court in 1995 for a charge of driving while disqualified and you were disqualified from obtaining a licence for 18 months. In 1997 you appeared before the Melbourne Magistrates' Court where you faced charges also dating from 2 August 1995. The offending included 15 counts of obtaining property by deception, theft, obtaining a financial advantage by deception, 34 counts, and three counts of attempting to obtain property by deception. You were sentenced to nine months' imprisonment suspended for three months.
44On 13 August 1997 a further charge of obtaining property by deception was dealt with. In 1998 you appeared again before the Benalla Magistrates' Court for driving while suspended and received a one month's sentence of imprisonment suspended for 24 months and you were disqualified from driving for six months. You appeared before the Seymour Magistrates' Court in March 2001 on three counts of speeding and the sentence imposed was an aggregate sentence of $500 with conviction. You were suspended from driving for two months.
Matters Before the County Court
45You first appeared before this court in 2000 before His Honour Judge Robertson where you were sentenced to two counts of obtaining property by deception and two counts of attempting to obtaining a financial advantage by deception.[27] The sentence imposed was 12 months' imprisonment concurrent on the two charges of obtaining property by deception and nine months of that sentence suspended for two years. On the two charges of attempt to obtain a financial advantage by deception you were sentenced to three months on each count and concurrent with the other State sentences.
[27]R v Sedat Ceyan (J Robertson) (County Court Reasons Friday 19 May 2000)
46In 2007 you again appeared before this Court.[28] You were charged with obtaining property by deception, two counts of attempting to obtain property by deception, obtaining a financial advantage by deception and attempting to obtaining a financial advantage by deception. You attempted to dishonestly obtain $278,000 from the Commonwealth Bank. You were sentenced to a total effective sentence of four years with a non-parole period of two years.
[28]R v Ceylan [2007] VCC 653
47In 2008 you again appeared before Judge Howie and were charged with 10 counts of obtaining property by deception from a Commonwealth entity. You were given an aggregate sentence of five years' imprisonment with a non-parole period of three years.[29] The false claims totalled $2,643,973. The ATO was able to recover the final payment of $1,588,782 by means of a garnishee order and you were ordered to pay $1,055,191 reparation. Therefore overall, you have 20 convictions for theft or deception related offences, and you have been before this court on three occasions facing a total of 16 dishonesty offences.
[29]R v Ceylan [2008] VCC 204
Your Most Recent Offending
48In 2016 you appeared before the Broadmeadows Magistrates' Court on two charges of driving whilst disqualified, one count of using an unregistered motor vehicle, one count of entering an intersection on a red signal, one count of failure to answer bail. On each charge you were fined with conviction and an aggregate sentence of $1500 and suspended for two months' driving.
49On 22 October 2017 you appeared before the Melbourne Magistrates' Court on two charges of driving unlicensed, being a prohibited person in possession of a firearm, possession of cartridge ammunition without a licence. You were sentenced to a 12 months' Community Corrections order. You appeared again before the Melbourne Magistrates' Court on 14 June 2018 for driving unlicensed, driving while suspended, failing an oral fluid test, driving an unregistered motor vehicle and for possession of methylamphetamine and ecstasy. You were sentenced to a total effective sentence of 30 days' imprisonment and fined $400, had your licence cancelled and were disqualified for three months in the driving charges. This period of imprisonment does not count as pre-sentence detention because, as I indicate, I have had regard to it as a matter of totality.
50Looking at your criminal history overall, in 2000, 2007, 2008 and 2018 you were sentenced to terms of imprisonment of 12 months, four years, five years and 30 days respectively. You also received sentences of imprisonment in the Magistrates' Court which were wholly suspended. Your prior convictions show that you have been sentenced to terms of imprisonment for dishonesty, driving, drugs and firearms offences. You have also been sentenced to Community Corrections orders. The criminal history is relevant to your moral culpability for the offending here.
Personal Circumstances.
51Little material was put forward on the plea as to your personal circumstances. Your earlier personal background was set out in the two sentences of Judge Howie, related to your prior offending. That history indicates you are now aged 51 and you were born in Turkey. You arrived in Australia with your family when you were 12 months old. You were involved in major dishonesty offending when you were aged 30, and while you were awaiting trial for that offending, in November 2001 you left Australia and went to Turkey and you remained there until January 2007. Judge Howie notes that the explanation for leaving the jurisdiction was blackmailing and threats. The perpetrators died but your time in Turkey was not happy and you returned to Australia to have the matters dealt with and bring up your family.
52As I have indicated, you were subsequently sentenced to two significant terms of imprisonment, leading ultimately to a sentence by Judge Howie imposed on 14 March 2008 of five years' imprisonment with a three-year minimum. In the sentencing remarks he noted that you had completed Year 12 at secondary school and gained entry into university to study science but had not proceeded far into the course. You became involved in business to support your family, particularly after your father was apparently charged with drug trafficking and went to gaol.
53The psychologist who had examined you for the purpose of the plea before Judge Howie assessed you as being an intelligent man but one who had failed to develop a moral compass, specifically where financial management was concerned. She noted at that stage, which is 2008, you were more mature than when you committed the earlier offending in 2000, and the psychologist considered your prospects for rehabilitation to be excellent. I interpose that your moral compass does not seem to have developed since that assessment and your prospects of rehabilitation are poor.
54To return to the chronology, before leaving Australia you had been involved in businesses with your family members, including a supermarket in Bairnsdale, an unsuccessful one in Templestowe, you then you became a finance broker organising home loans and other financial transactions. You became involved in a business exporting superseded handsets and it was when you were in that business that you committed a major revenue fraud.
55You are now aged 51. At the time of this offending you were unemployed. The sentences imposed by Judge Howie would have concluded on 13 March 2013. Charge 1 was committed about 13 months later. At the time of your arrest you were living with your partner, Ms Gazzard, in Pascoe Vale. She still supports you. She is involved in the courier business and you have employment open to you upon release from prison, and thus you have family support. You have been married to Ozlem Ceylan and you have three children who live with their mother. That again is a matter relevant to your prospects of rehabilitation.
56In 2007 when you were before Judge Howie, he assessed that you had reasonable prospects of rehabilitation. Since that time, you have served a significant period of imprisonment with the sentences I indicated expiring on13 March 2013. No doubt you were released on parole prior to that. However, as I have indicated, you reoffended 13 months after you completed that sentence.
57In the light of your substantial record of prior dishonesty offending your counsel, Mr Sheales, realistically conceded that your prospects of rehabilitation were only at best, guarded. I accept that characterisation.
Other Matters in Mitigation
58In sentencing I have taken into account your pleas of guilty. You admitted the offending in relation to Charges 1 and 2 in the record of interview. However, you took the proceeding against you to a committal and pleaded not guilty at the end of the committal. Although, as Mr Sheales put, you were facing a number of other charges which were the subject of the Committal Hearing which have now been withdrawn and the matter has subsequently resolved to the current plea presentment.
59You are entitled to the benefit of a relatively early plea and that is accepted by the prosecution. Your plea is also some evidence of remorse. Save for some comments in the record of interview of remorse and regret and acknowledgment of wrongdoing, there is little other evidence of remorse, particularly in relation to Charge 5, as you have sought in the course of the plea to recharacterize the nature of your communications in a way which I do not accept.
60I have taken into account that there has been considerable delay in this matter. You are being sentenced now for offending that occurred in 2014 and 2015 as well as 2018. You were not arrested until March 2018 and you have been in custody since that time. Because there were four other defendants there have been delays. Some of the defendants were committed for trial in April 2019 and you were ultimately committed for trial in July 2019. There was an application for a separate trial by other defendants. The matter was managed in the Long Trial List and was originally listed for trial in February 2021. Being on remand means that you have less access to relevant programs and less certainty as to your future and thus your time in custody is more burdensome.
61I must also take into account the onset of the COVID pandemic. This has resulted in the cessation of visits and less movement within the prison and a reduction in programs. There is also the continuing anxiety to those in custody that they may become infected and they are restricted in their ability to protect themselves from infection. While the authorities are taking every effort to have prisons operate in a normal fashion, imprisonment is a greater burden while the pandemic continues, and that is a matter that I take into account.
Purposes of Sentencing
62The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community, in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. In sentencing I must have regard to the maximum penalty, along with the circumstances of the offending and your antecedents. There are no victim impact statements filed, but clearly the victims in the two dishonesty charges are the financial institutions, and in relation to Charge 5 it is really the community through the system of justice.
63In sentencing you I have taken into account the comprehensive submissions made on your behalf by your counsel, Mr Sheales.
Relevant Case Law
64I was referred by both counsel to a number of possible comparative cases in relation to both the fraud charges and the attempt to pervert the course of justice. In relation to the dishonesty offences I have already referred to the competing submissions on the characterisation. Any particular sentence in another proceeding does not constitute a precedent. Sentences for dishonesty offending cover a wide range of circumstances in terms of quantum, the number of individual offence, the age and antecedents of offenders, whether the matter is the subject of a plea of guilty, and whether the charges involve continuing criminal conduct, which carries a higher maximum penalty.
65While I have considered cases such as Pun[30], Maddocks[31], Zotos[32], and Camara[33], each ultimately turns on their own facts. In cases involving fraud against financial institutions, considerations, as I have already indicated, of general deterrence, must play an important factor in sentencing. there's sentence of the court must denounce your conduct and in a sense reward all those who deal with financial institutions on an honest basis. All customers of financial institutions bear the burden of the controls that must be put in place by those institutions to protect themselves from fraudsters such as you.
[30]Pun v The Queen [2017] VSCA 219 (‘Pun’)
[31]Maddocks v The Queen [2011] VSCA 20 (‘Maddocks’)
[32]R v Zotos [2008] VSCA 82 (‘Zotos)
[33]Camara v The Queen [2015] VSCA 20 (‘Camara’)
66Specific deterrence in your case carries considerable salience given your numerous prior convictions for dishonesty offences, including the sentences of imprisonment that have been imposed on you that I have already referred to. You clearly have not learned your lesson in the past, given your prior record of the dishonesty offences, including significant gaol sentences for that type of offending, yet you continue to offend. The explanation of the offending being financial difficulties of gambling does not call for any leniency.
67In relation to Charge 5 your counsel referred me to a number of cases in the sentencing snapshot which indicates that the median sentence for this offence was one year. His submission was that any sentence should be below that median.
68Ms Mandie contested that and referred me to the case of Middleton and Semaan. In Middleton the court referred to the principles on Oksuz[34] and repeated the prosecution submission at [74] that there are many and varied circumstances surrounding offences of this kind:
'And that a sentencing judge has a broad discretion in dealing with the particular facts of the case'.[35]
[34]DPP v Oksuz (2015) 47 VR 731 (‘Oksuz’)
[35] (‘Middleton’) above n 19.
69The Crown were seeking to defend a sentence of four years as being within range given current sentencing practices, and submitted:
'That sentences typically imposed for this offence range from a few months' imprisonment or less to three or four years of imprisonment'.
70Citing cases, your counsel submitted that a sentence of months was applicable.
71I accept the prosecution's submission that I am not in a position to conclude that Mehmet Yaydemir was a liar and I find that the request for him to either not attend the committal or say that it was a matter of a commercial dispute was not asking him to act truthfully. He had made a jurat statement to the police as far back as September 2015 alleging dishonesty on your part.[36] He had issued civil proceedings arising out of his dealings with your family members.[37]
[36]Depositions pp. 29 - 32
[37]Writ, Depositions pp. 1043
72As I have indicated, you were facing numerous serious offences for which you had prior convictions, and given that you have effectively admitted your guilt for the conduct encompassed by Charges 1 and 2 of the presentation in the record of interview, at the time you sought to enlist your family members to contact Mr Yaydemir, then you contacted him yourself, you knew you were facing a significant term of imprisonment. The fact that ultimately the prosecution withdrew a number of the charges that led to this matter being resolved, does not, in my view, mitigate in any way your conduct that is encompassed in Charge 5. As Ms Mandie submitted, prosecuting authorities may withdraw charges for all sorts of reasons.
73In relation to the charge of attempting to pervert the course of justice, consideration of general deterrence and denunciation are paramount. A signal must be sent to those involved in the criminal justice system, whether they are in prison or on remand or on bail, that attempts to compromise the course of justice will be met with heavy penalties. Your conduct in seeking to recruit family members in that effort from prison, requires particular denunciation. In sentencing you I must also have regard to considerations of totality. Charges 1 and 2 are similar but they are separated by a year and involved different victims. Some cumulation is appropriate.
74I have had regard to the 30 days' sentence for the other offending that was imposed in June 2018. Had all these matters been dealt with at the same time then it is likely that you would have had substantial concurrency, and I have taken that into account in a general way in your favour.
75There was little discussion on the plea in relation to the two drug possession charges and the uplifted summary charge of committing an indictable offence on bail. Having regard to the comments in the record of interview that you were a casual drug user and used the cannabis to relax and had recently been involved to support a friend and were not feeling the best at the time the police raided the property, and that led you to use the drugs found, I am satisfied that they were not possessed for the purpose of trafficking and that therefore concurrent sentences are appropriate.
Sentence
76Could you please stand?
77The sentences of the court are as follows:
on Charge 1 of obtaining a financial advantage by deception, you are sentenced to three and a half years' imprisonment. That is the base sentence;
on Charge 2 of obtaining property by deception, you are sentenced to two years' imprisonment;
on Charge 3 of possession of a drug of dependence, namely methylamphetamine, you are convicted and fined $200;
on Charge 4 of possession of cannabis, you are convicted and fined $200;
on Charge 5 of attempt to pervert the course of justice, you are convicted and sentenced to two years' imprisonment;
on the uplifted summary charge of committing an indictable offence on bail, you are convicted and sentenced to seven days' imprisonment.
78I make the following cumulation orders. I direct that nine months of the sentence on Charge 2 and one year of the sentence on Charge 5 be served cumulatively on each other and on the base sentence, making a total effective sentence of five years and three month’s imprisonment. The sentences imposed are otherwise concurrent. I direct that you must serve three years and four months' imprisonment before being eligible for parole.
79I will declare 901 days pre-sentence detention.
80Pursuant to s.6AAA I declare that had you not pleaded guilty I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of four and a half years.[38]
[38]Sentencing Act 1991
81I make the restitution order and the destruction orders sought by the prosecution.
82MS MANDIE: Thank you, Your Honour.
83HIS HONOUR: Are there any other orders, Ms Mandie?
84MS MANDIE: No, that was all, Your Honour, thank you.
85HIS HONOUR: All right, any other matters, Mr Sheales?
86MR SHEALES: No, Your Honour.
87HIS HONOUR: All right. I want to thank both counsel for their assistance in this plea and, Mr Ceylan, you are required to serve five years' and three month’s imprisonment. If you get parole, you will be eligible for it after three years and four months. You are too old to be seen back in the prison system. I hope you can put it all behind you now.
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