R v Kayirici

[2018] NSWDC 456

District Court

New South Wales

Medium Neutral Citation:	R v KAYIRICI [2018] NSWDC 456
Hearing dates:	31 August 2018; 16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted on each count. Indicative sentences: Count 1 and Count 2: Special verdict - 2 years and 6 months’ imprisonment Count 3: 4 years’ imprisonment Aggregate sentence: Sentenced to a term of imprisonment of 5 years, comprising of a non-parole period of 3 years and 9 months to commence on 26 September 2016 and to expire on 25 June 2020, and a balance of term of 1 year and 3 months to commence on 26 June 2020 and to expire on 25 September 2021. Count 3 – SEQ 001 – Police pursuit – not stop – drive recklessly: 5 years license disqualification s166 matters: SEQ 002: Convicted - no further penalty. Automatic disqualification to be concurrent with the 5 year licence disqualification in respect of SEQ 001 (Count 3). SEQ 003: Convicted – no further penalty
Catchwords:	CRIMINAL – sentence – property offences - break, enter house, steal – receive stolen goods – alternative special verdict of break enter & steal or receive property – theft – police pursuit, not stop, drive recklessly - refusal to plead at trial - taken to have pleaded not guilty – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Callaghan v R [2006] NSWCCA 58 R v Richards (1981) 2 NSWLR 464
Category:	Sentence
Parties:	Regina Mustafa Kayirici
Representation:	Counsel: Crown: Mr M O’Brien Defence: Ms D Hawkins   Solicitors: Crown: Ms A Pinkerton Defence: Ms Z Burrows
File Number(s):	2016/00193568

Judgment

1. HIS HONOUR: On 5 June 2018, a trial was commenced in respect of the offender, Mustafa Kayirici, the indictment containing three counts.

2. Count 1 was that on 25 June 2016, he broke and entered the dwelling house of Mr and Mrs Todd in Greycliffe Avenue, Vaucluse, and committed an indictable offence therein, namely, stealing contrary to s 112(1)(a) of the Crimes Act 1900.

3. Count 2 was an alternative to the first count, being on the same date and at the same place that he received and had bags, blankets, cameras, glasses, jewellery, watches and phone, the property of Mr and Mrs Todd before then stolen, the stealing of which amounted to a serious indictable offence, being the break, enter and steal on 25 June 2016 at Greycliffe Avenue, Vaucluse, he, at the time when he received the said property, knowing the same to have been stolen, contrary to s 188(1) of the Crimes Act 1900.

4. In relation to those two counts, in the alternative there was an available special verdict pursuant to s 121 of the Crimes Act, that is, where in the trial of a person charged with larceny or any offence which includes larceny, and also with having unlawfully received the property charged to have been stolen knowing it to have been stolen, the jury find that the person either stole or unlawfully received such property and that they are unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal but shall be liable to be sentenced for the larceny or for the unlawful receiving, whichever of the two offences is subject to the lesser punishment. In this matter, the jury returned a verdict of guilty in respect of the special verdict.

5. The third count on the indictment was that on 25 June 2016, at Bondi in the State of New South Wales, he drove a vehicle, being a silver Ford Mondeo, on Bondi Road, knowing that police officers were in pursuit of the vehicle, and that he was required to stop the vehicle and did not stop the vehicle, and then drove the vehicle in a manner dangerous to others, generally referred to as a police pursuit offence, contrary to s 51B(1) of the Crimes Act1900.

6. At the commencement of the trial, the offender was arraigned in the absence of the jury panel in respect of the three counts on the indictment but gave non‑responsive answers, that is, he did not enter a plea of guilty or not guilty, and was taken to have entered a plea of not guilty in respect of each of the offences. He followed the same course when arraigned after the jury panel had attended the court for selection, and on each of those occasions the pleas were taken as a not guilty plea. He made in general each time, rather than a plea, a response to the effect that this was not a fair trial or something of that nature, the particular words I can no longer remember and they are not recorded in the transcript.

7. The trial commenced on that day and continued until the jury returned verdicts on Monday 18 June 2018; a Special Verdict in relation to Counts 1 and 2, being unable to decide which offence had been committed, and a guilty verdict in relation to Count 3 being the police pursuit.

8. Pursuant to s 121, the maximum penalty that can be imposed in respect of the Special Verdict is the maximum penalty available for the offence of receive stolen property contrary to s 188(1) Crimes Act: ten years’ imprisonment. In relation to the offence of police pursuit contrary to s 51B(1), it is a second offence, and accordingly the maximum penalty that can be imposed is five years’ imprisonment. There is also in relation to that offence an automatic licence disqualification of five years. In relation to the Special Verdict and the police pursuit there is no standard non‑parole period provided.

9. It falls to the Court to determine the facts relevant to sentence. I have previously today at some length indicated, in respect of Counts 1 and the alternative Count 2 and the Special Verdict, that had the trial been a judge alone trial, I would without hesitation have convicted the offender in relation to Count 1, that is the break and enter and commit serious indictable offence, namely stealing. I express that view because I was of the opinion that there was a very strong Crown case that he had in fact committed that offence and that the defence to that charge raised by the offender when he gave evidence was entirely implausible. In view of the time today I do not wish to repeat the remarks that I made during the course of discussion this morning.

10. As a result of the special verdict I am constrained by the limitation on sentence as provided by s 121. Despite what I have said about being convinced beyond reasonable doubt that he in fact committed the break and enter, I must sentence him on the basis of the lesser sentence provided for the s 188(1) offence, and in my view, despite what I have stated, I need to make some accommodation in relation to the jury’s doubt as to which of the offences was committed, and I will do so in due course.

11. I note that the owners of the premises, James and Robyn Todd, left their home, having set the alarm at 8.15am on 25 June 2016, and that approximately 18 minutes later, at 8.33am, an alarm was triggered in the house. The evidence indicated that the intruder had broken into the house by throwing a brick through the glass panel of a side door and had been able to enter the house and go upstairs before triggering a motion alarm on what is referred to as “the gallery” before then ransacking a number of bedrooms and a downstairs study in haste while the alarm was sounding, and taking the stolen property from the house. Such was the haste that a number of items that could not have been of any interest or value to any intruder were taken, together with items that may be of some value, such as cameras and a variety of jewellery.

12. Without going into the detail, the offender’s mobile phone had been operating in the Vaucluse area shortly before the time of the alarm being set off, and after the alarm had been set off, at a later period, his mobile phone was connecting to other cell masts consistent with the intruder travelling to the west from Vaucluse.

13. The offender in giving evidence stated that he had acquired the property by purchasing it from an unidentified male in the Redfern block area, who he was delivering drugs to and from whom he purchased all of the stolen property for $100 or $200 as well as the provision of the drugs that he had attended to sell to that person. As I have previously said, the explanation when one takes into account travel times, the cell phone connections at various cell masts in the Eastern Suburbs and none at any relevant time in the inner city area such as Redfern or Moore Park or Chippendale, was an entirely implausible story.

14. As to the police pursuit which commenced at about 11.30am in the Bondi Junction area, the offender was detected as a result of allegations the police were investigating of his having sexually assaulted a 22 year old female escort on 19 June 2016 and a 13 year old schoolgirl on the preceding day, that is 24 June 2016. As a result of complaints made to police, there was an active investigation in relation to those matters underway and a warrant had been obtained for the interception of the offender’s cell phone, which was how the prosecution came to have recordings of messages and phone calls made by the offender before the burglary and shortly after the burglary. They were relying, it appears, on information contained in intercept phone calls to endeavour to locate where the offender was in relation arresting him in respect of the allegations made by the 22 year old and 13 year old complainants.

15. Evidence given today from Detective Senior Constable Carter indicates that as a result of the interception of the offender’s mobile telephone by Strike Force Kochia, that he appears to have been informed by his mother that there had been contact with her by police officers who were trying to locate him.

16. On 24 June 2016, he sent an SMS to a female friend at 12.44 with the message “Ann just told me cops are looking for me.” On that date at 12.49, he received a text message from his mother which read “The sergeant detective and uniformed police stop.” It was apparent that at the time he was in Bondi Junction and communicating in an intercepted phone with Ms Jessica Fsadni, his girlfriend, about the possible rental of a unit in that area, that he was aware that the police were trying to locate him, and of course he was aware of any offence that he may have committed before that time. The relevance of that material on sentence is not that he is to be sentenced for any offence other than that he was convicted of by the jury, but that it explains the commencement of the police pursuit being as a result of his awareness that police were looking for him.

17. His evidence at trial in relation to the police pursuit was to the effect that while driving on Bondi Road, he saw a vehicle that pulled up, having come from the opposite direction, and a person who he believed to be a “Muslim brother from the western suburbs” pointing a Glock through an open car window at him, and saying words to the effect of “Get the fuck out of the car”, that he interpreted this as being his enemies from the west seeking to effect some punishment for some undisclosed matter, and as a result he then departed and the police pursuit commenced.

18. The evidence of the police officers was that they had been proceeding in Bondi Street when they observed the offender through the open window of his car, turning left into Paul Street from Bondi Road. There had been no weapon presented or any calling out to the offender, but having recognised him through the open window, they commenced the pursuit in an unmarked police vehicle, turning on the siren and lights. The offender, having turned left into Paul Street, very shortly thereafter turned right into Dalley Street, which was a dead end, being blocked by a verge which prevented access by vehicles to Council Street. The offender drove over the verge and turned left into Council Street.

19. Having turned left into Council Street, he proceeded down Council Street and through a number of intersections which were fortunately, although controlled by lights, favouring him with green lights until he reached the intersection of Bronte Street and Council Street. While travelling down Council Street, which had a speed limit of no more than 60 kilometres per hour, he was estimated as travelling in excess of 150 kilometres per hour. The traffic in Council Street was light at the commencement of his journey along Council Street but became heavy about half way to the intersection with Bronte Road.

20. As he drove along Council Street he in fact crossed onto the wrong side of the road, almost colliding with a female pedestrian who had been crossing the road and was in the middle of Council Street, his vehicle coming to within about 5 metres of her. When he reached Bronte Street, he turned right, coming very close to colliding with three or four cars which were forced to take evasive action to avoid a collision. As he travelled along Bronte Road, he was again estimated to be travelling at around 140 to 150 kilometres an hour. As he travelled north on that road, he predominantly travelled on the incorrect side of the road. As he reached the proximity of the Bondi Junction shopping area, there was an increase in pedestrian traffic and a number of them were observed by the pursuing officers to have to hurriedly move out of the way.

21. Bronte Road eventually intersects with Brisbane Street, which leads onto Grafton Street via Grosvenor Road. At some points, the speed limit in the local streets was in fact 50 kilometres, and the speed at which he was travelling was well in excess of that. When he reached Grosvenor Road, which parallels Syd Einfeld Drive, the street is divided for much of its length by a fenced median strip. He travelled on the wrong side of the road in the face of oncoming traffic. At first there were no oncoming cars, and his speed was again estimated to have increased to approximately 140 kilometres an hour. He remained on the incorrect side of the road all the way along Grafton Street. He travelled in what was about a 20 to 30 metre section of Nelson Street which connected to Oxford Street and York Street.

22. As he turned right from Nelson Street, he went through a red light, there were then cars going in both directions which had to take evasive action to avoid colliding with his vehicle. He travelled along Oxford Street on the wrong side of the road before turning right into York Street, still on the wrong side of the road, before turning onto Syd Einfeld Drive. However, when he did so, he turned left and straight into the face of oncoming traffic, but he continued to turn, driving over the median strip until he was facing the oncoming traffic from the opposite direction.

23. All of the cars at the intersection had to stop driving in order to avoid colliding with the offender’s vehicle. He completed in effect a 180 degree turn and drove east on Syd Einfeld Driveway, eventually crossing back over to the correct side of the road while on Syd Einfeld Drive.When he reached the area of the intersection of Syd Einfeld Drive and Old South Head Road, there were vehicles occupying each of the two lanes, stationary at the lights, there was insufficient room for his vehicle to continue. He forced his way through between the vehicles causing significant damage to the rear offside of one of those vehicles, and to the nearside of the other vehicle. At some stage, one of his front tyres burst.

24. He continued driving down Old South Head Road, once again travelling on the wrong side of the road, and vehicles were observed to swerve or stop to avoid colliding with him as he travelled on the wrong side of the road until he reached the intersection with Flood Street, at which junction he turned right and then immediately left into Orr Street and then left again into essentially the cul-de-sac of New Street. When he reached the end of New Street, he would have either had to continue and return to Orr Street but instead drove through a small park, being a pedestrian access between New Street and Old South Head Road. In going through the park, he ran into at least one of the bollards in the park.

25. Having gone through the park between New Street and Old South Head Road, he was faced with a vehicle collision guard and could not continue back onto Old South Head Road. He turned left and drove on the footpath until such time as he reached a bus shelter and a brick wall which did not provide a wide enough space for a car to go through. He drove his car into that space to the extent that it became wedged. There were apparently a number of pedestrians a little further on.

26. At all times during the course of this pursuit, he was pursued by the first police vehicle but in the course of driving along Bronte Road, other police vehicles had joined in. For most of the pursuit, he was pursued by three police vehicles, each having their lights and sirens activated.

27. I am of the view that in relation to the police pursuit, the offender’s conduct falls at the highest level of seriousness. He presented an ongoing significant danger to pedestrians and vehicles, their drivers and passengers on what was a mid-Saturday morning at Bondi Junction. There were pedestrians who had to move out of the way and motor vehicles that had to move out of the way or take action to avoid him.

28. Although his speed varied from time to time, particularly obviously when having to turn corners, he generally proceeded at a very high speed in what were areas of no more than 60 kilometres per hour, if not 50, and in relation to the Syd Einfeld Drive, 80 kilometres.

29. He caused damage to a number of vehicles at the intersection of Syd Einfeld Drive and Old South Head Road, and the pursuit only ceased because of his action in trying to force the car between a bus shelter and a brick wall.

30. It is always possible to envisage police pursuits which might be regarded as being more serious than another pursuit, that is, by way of the time or distance over which they occur, the amount of damage caused and the threat to other road users and/or pedestrians. But the offender’s conduct on this occasion, clearly, in my view, indicates that the offending must be regarded as being in the highest level of seriousness for such an offence. It does not assist, as submitted by Ms Hawkins on his behalf, that there was no-one injured. That would of course have potentially resulted in a much more significant charge being laid.

31. His evidence, that he engaged in the pursuit as a matter of self-defence because he perceived that it was the “Muslim brothers” who were trying to attack him, was clearly rejected by the jury. The allegation as to a gun being pointed at him by the police officers in their vehicle on the other side of the roadway was denied by the officers, and I reject his assertion. Of significant affect in relation to the offender’s credibility as to his assertions was that a number of police officers gave evidence as to the route of the pursuit, the speeds, the collision with other vehicles and the like that I have referred to.

32. In cross-examination of the witnesses there was in effect no contest with the evidence as to the course of the pursuit or the offender’s conduct at various times, except perhaps as to speed.

33. When the offender gave evidence, he gave evidence of an entirely different course of pursuit in relation to which no officer had been cross-examined at any time. In my view his evidence was a patently false concocted story.

34. The offender, at the end of the police chase, had to be removed from the vehicle through the rear offside passenger door, it being the only door in the circumstances that was capable of operating. The officers had been pursuing him in relation to very serious offences. He had a bag slung around his shoulder and body and there was concern as a result of information the police had, but not before the jury, that he may have had a weapon of some sort. He did not immediately get out of the car despite requests that he do so. He was in due course effectively dragged out of the car as he endeavoured to move towards the back seat from the front driver’s seat, or indeed the front passenger seat.

1. So concerned were some of the police officers that they drew their pistols in the course of him being extracted. He ended up on the ground with a number of officers attempting to restrain him and overcome his resistance to being extracted and detained.

2. During the course of the struggle, he received a number of injuries and a video was produced during the course of the trial and tendered in evidence on his behalf as to that struggle.

3. On sentence, a number of still photographs have been produced as part of Exhibit K6, showing the offender after he had been arrested at the police station on the basis that they demonstrate that he received some injuries. I have no doubt that he received some injuries during the course of being arrested. However, an observation from the photographs of the scene and the video indicates that it is likely that his facial injuries were occasioned by his face coming into contact with the verge, which had some protruding roots or other growth.

4. It may well be that some of the contact from police in attempting to subdue him went beyond what was necessary, but it is entirely understandable in the circumstances and their fear of what that may occur if he was in fact armed with a weapon.

5. It has been submitted on his behalf by Ms Hawkins that the manner in which the offender was arrested at the end of the police pursuit should be taken into account as extra curial punishment. I decline to do so, even allowing that there may have been to a minor degree some excessive force used.

6. As to subjective matters, the material before the Court consists of the offender’s criminal history. I will note in that regard that his criminal history commenced as a juvenile when he was approximately 13 years of age. He has had a significant number of criminal offences recorded as a juvenile and his offending has continued after becoming an adult. Of most significance is that in October 2014 he was charged with a police pursuit offence, being his first offence of that nature and in February 2016 at Liverpool Local Court he received a sentence of seven months imprisonment and was disqualified from driving for 12 months. He otherwise has a number of offences either as a juvenile or as an adult in relation to assaults, larceny, destroying or damaging property, robbery while armed with an offensive weapon, possessing house breaking implements, possessing prohibited drug and a number of other offences I will not itemise.

7. The majority of his offending has occurred as a juvenile, and before the Court is also the New South Wales Department of Corrective Service Convictions, Sentence and Appeals Report. On 19 April 2008, he was in Kariong Juvenile Detention, having been admitted that day. However, he was transferred to John Morony Metropolitan Remand on 6 October 2008. He remained in custody until the sentence expired on 28 April 2010, but he was back in custody again on 26 August 2010 where he remained until he was released on parole and bail on 2 December 2010. Unfortunately he was not at liberty for long, returning to custody on 10 February 2011 and remaining there until paroled on 12 July 2014. However, it appears that his parole was revoked some three months later on 12 October 2014, from the Sentence Assessment Report, on the basis of his failure to comply with conditions of his release and also because he had been charged with offending while on parole. I note it appears that in respect of any offending while on parole he was eventually found not guilty on 9 March 2016.

8. At the time of committing these offences, he was on bail in relation to a number of offences, being assaulting a law officer, stalking, harassing, intimidating a law officer, in each case not being a police officer, common assault and also assault and resist officer in the execution of duty.

9. After having been arrested in respect of these offences and in respect of the offences that he has now subsequently stood trial in respect of and offences that he has yet to stand trial in respect of, on 16 February 2018 at Blacktown Local Court he was convicted of two counts of common assault committed on 10 December 2016, that is, while he was in custody. He received an aggregate sentence of three months commencing on 1 June 2017 and expiring on 31 August 2017.

10. Commission of an offence while on bail is a matter of significance. There is long line of authority that this is a serious aggravating factor as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465.

“The protection of the community from those who abuse their liberty on bail to commit further offences calls for “severely deterrent sentences” which will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed for the original offence.”

45. Also before the Court in relation to subjective matters is the Sentence Assessment Report of 9 November 2018, under the hand of Chandan Rana. I note that his mother is said to provide him with positive pro-social support and her intention to assist him in the future when released. I note however that he attributes his previous convictions and related behaviour to mental health issues and illicit substance abuse. In respect of that, whilst in custody he has had approximately 16 internal charges for misconduct including assaulting staff, possessing a mobile phone, and intimidation. As a result of the institutional misconduct charges, he has been placed in segregation at the Metropolitan Reception and Remand Centre, because he poses a threat to the good order and discipline within the custodial environment.

46. Tendered on his behalf is Exhibit K5, being a submission to the Commissioner by the General Manager and the Assistant Commissioner of the Custodial Corrections Branch, dated 13 April 2017. It indicates that he has been subject to a three month segregation order for assaulting an officer on two separate occasions, and on 10 July 2016 was placed on a Protection and Non-association Order due to his long history of violence and threats made against his life while incarcerated, which of course made it difficult for him to be placed in the general inmate population.

47. It is said in the report that his most recent arrest created significant media coverage due to the young age of one of the victims, and also the number of alleged victims, which I understand was some eight complainants in relation to the matters that he has recently been convicted of, being approximately some 28 separate counts, and of course the 13 year old previously referred to, in relation to whom he has not yet stood trial, it being due to commence early next year.

48. It is not difficult to understand from my knowledge of the prison system that on the basis of those offences alone, the offender could be expected to have a difficult time in the general inmate population. That is not the only reason. He is said in the report to display “unpredictable violent behaviour” and he is perceived as being “extremely dangerous and hostile towards female staff”.

49. As previously referred to, he has an extensive history of corrective centre misconduct and non-compliance with centre routine. Because of his unpredictable behaviour and the threats made against him by other inmates it would appear to be entirely appropriate that he is the subject of a Protection and Non-Association Order.

50. I accept that while the subject of such an order, the conditions of his imprisonment are highly restricted, at least in terms of the time out of his cell, and the availability of courses and/or work. The offender is a significant contributor to the reason why he is in protection.

51. While it is a more restrictive form of custody, it also has a benefit for the offender in that it removes him from the threat of intimidation and/or assault by other prisoners who have adverse views of those who commit sexual offences, particularly in relation to young persons.

52. As to his attitude, the Assessment Report indicates that he knew his actions were wrong and believed that no one would be hurt during the pursuit, and thought that his actions were justified because the police never activated the sirens during the pursuit and failed to identify themselves as police officers. As I have previously indicated, from the commencement of the pursuit, the police activated lights and sirens, and shortly after the commencement of the pursuit, he was being pursued by three such vehicles.

53. The Pre-Assessment Report also indicates that he claims that he was under the influence of “ice” during the commission of the offence, and that his substance usage had substantially increased in the week leading up to the offences. Although he has been diagnosed with substance abuse disorder from at the latest 2013, he has never participated in any treatment or program.

54. As to whether he has any insight into the impact of his offending, the report states that:

“Mr Kayirici does not appear to accept responsibility for his actions, and maintains he never entered the house.

He displayed no insight into the impact of his offending behaviour, as he stated he denied committing the break and enter house."

55. His previous engagement with Community Corrections in the past has been described as “unsatisfactory” and the report refers to his breach of a parole order on multiple occasions within the 3 months in the community, being the matter I referred to earlier. He apparently failed to maintain contact and eventually re-entered custody, as he re-offended and his parole order was revoked.

56. As to risk assessment, he is described as having a “high risk of re-offending”, an assessment which in my view is entirely appropriate. I note that while in custody one of the difficulties he would no doubt have with other prisoners would arise simply from his own personal behaviour.

57. During the course of the trial, not only did he decline to enter a plea to the charges, he occasionally indulged in outbursts from the dock, and despite being confined behind a glass panel in order to prevent such outbursts, during the course of the Crown Prosecutor’s closing address he held up a sign so that the jury could read the words on the note, being, “I am not getting a fair trial,” which was consistent with a number of his outbursts during the course of the trial.

58. In my view, the offender has a difficult and manipulative personality, which is likely while in custody to cause him to come in conflict with other prisoners. I am of course not sentencing him for his conduct in court, but for the offences that are before me. It is however relevant to an assessment of his character and nature. His obstructive behaviour was also in my view evidenced by the course of the proceedings prior to trial, and the number of applications made and the number of changes in counsel because their instructions had either been removed or because they felt they had an ethical conflict and had to remove themselves from the matter.

59. I have some sympathy for any legal representative who has had to represent Mr Kayirici during the course of this matter. There is a raft of material that I have not yet referred to, and I will try and do it in relative chronological order. What is now Exhibit K6 is a bundle of material which includes other material that has previously been provided, in part.

60. Let me deal first of all with a letter from his mother, dated 30 August 2018. It is an almost three page letter, which is almost entirely devoted to his mother’s trials and tribulations in life, and says little about the offender, other than that when he was 10, he discovered his grandmother, she being deceased, having had a heart attack, on the floor, after he got up in the morning. In his mother’s opinion this was a traumatic event for him, he being close to his grandmother. She otherwise makes little reference to him other than, according to her, his difficult time in custody because of his segregation and lack of access to education and other facilities including human contact. According to her, from what he has told her, he has been assaulted while in custody.

61. There are a number of reports from the Children’s Hospital at Westmead. The first of those relates to an admission on 5 November 2004 in relation to a lacerated left hand which was debrided, washed out and a tendon of the left little finger repaired and the left hand sutured. He was admitted and released on the same day.

62. He had an admission at 15 years of age, said in the medical reports to be the result of being attacked by a “big, white gentleman” and punched in the abdomen, hitting his head on the ground and feeling dizzy, but not losing consciousness. Further material from the Children’s Hospital in relation to 6 December 2002 - I am sorry, that was the occasion with the debriding, wash out and repair of the left tendon and little finger. The assault at Westfield was in relation to 5 November 2004.

63. He was again admitted to hospital on 28 July 2003, said to be in relation to a fall from a bicycle. Apparently he had fractures to both the right and left nasal bones with minimal displacement; there was some crushing of the bony fragments. As I understand it this is an event in relation to which the offender has subsequently claimed to two psychiatrists that he was unconscious and admitted to hospital for 2 to 3 weeks, and to least one of them as being in a coma for 3 weeks. The hospital notes indicate that he was admitted and discharged on the same day, although he no doubt had to return in relation to the fractures of the right and left nasal bones.

64. There is a further report from the Royal North Shore Hospital in relation to an examination on 9 June 2016 and in relation to spinal difficulties, said to have arisen from his interaction with police. It was established that he had “grade 1 spondylolisthesis of the L5 onto the S1 secondary to bilateral chronic pars interarticularis defects” with “prominent neural foraminal narrowing with bilateral L5 nerve root impingement”. There was some moderate canal narrowing, secondary to a small posterior disk osteophyte complex but no further neural compromise at any level and no evidence of an acute injury.

65. The next series of documents tendered on his behalf is in relation to the custody management record on 25 June 2016, which was the date of his arrest in respect of this matter and others. It indicates that there was observed injury, and that he made complaints in that respect. He was apparently taken to hospital and prescribed an antibiotic.

66. I had previously referred to the photographs of him at the police station on that occasion showing clearly what appeared to be some injuries, particularly in respect of his head or face. There is a Justice Health referral form for 27 June 2016 in relation to the same injuries, indicating that he had some psychosomatic arch pain on opening and closing his mouth with some numbness over the left side of his face, including the intraorbital nerve and that the left orbital floor appeared depressed and tender.

67. There are some further notes from Justice Health being an emergency response form in relation to the offender being found, apparently on 3 November 2011, on the floor and distressed. There is a New South Wales Justice Health medical officer nursing certificate from a custodial officer at Parklea on 14 September 2017 indicating that the offender has back pain and a number of other documents of a similar nature in relation to his claims of back pain on various occasions, and I note the MRRC suggested that his pain be accommodated by the provision of a double mattress and also supportive footwear.

68. There is a letter dated 29 October 2018 from Dr Vijay Panjratan, being an orthopaedic surgeon. He consulted with the offender at MRRC on Saturday, 27 October 2018, but was unable, because he was not permitted, to make a hands on examination. He relied on what he was informed by the offender and on such medical notes as were provided to him. He was said to be complaining of constant back and left leg pain and the doctor was informed by the offender that his medical issues were not being managed in custody.

69. As I have noted, the difficulty with Mr Kayirici is that he clearly does have some back problems, which have been previously diagnosed and are evident from examination. The difficulty is the extent to which Mr Kayirici can be relied on as accurately reporting the cause and/or the existence of such problems. I do not find any significant assistance from Dr Panjratan’s report, although I accept that the offender does suffer from some back pain, and that in the absence of a better mattress this may be more evident or more of a problem.

70. There is a further Justice Health report from 4 December 2018, unsigned by any custodial officer, indicating that the offender suffers from obsessive compulsive disorder, and as a result recommending that he be allowed access to cleaning products and gloves and antibacterial sprays. There is a referral document dated 10/10/2012 referring him for a mental health assessment or program with a diagnosis of schizophrenia, being non-compliant with his medications, and suffering from fluctuations in his mood and sleep and further documents of the same nature. There are a number of reports from Dr Furst, psychiatrist, dated 28 August 2018, and a further report of 29 August 2018. Dr Furst had available to him an assessment from Dr Olav Nielssen, also a psychiatrist.

71. The offender having been born in 1990, he is now 28 years of age and was 26 years of age at the time of the offending. He was apparently at the time of his offending living with his mother, on and off. He was in a relationship with a female previously referred to, Ms Fsadni”, said to be for approximately 4 years, although for most of that time the offender was in custody. He was apparently born in Darlinghurst and grew up in Guildford, attending Auburn North Public School and Guildford Public School. He is said to have had some learning difficulties, struggling to listen in class and being generally hyperactive but never been diagnosed as ADHD.

72. His father was arrested and incarcerated for approximately 6 years when the offender was some 10 years of age. As I understand it, that was in relation to his father being charged in relation to some offence involving the Turkish Consulate. The offender at school commenced the use of marijuana from about the age of 13 or 14, and also subsequently methylamphetamine on a regular basis. He described himself as a “thug”.

73. He attended some classes in Juvenile detention and subsequently attended Merrylands High School, progressing to the end of Year 10. His drug use, however, continued, especially in respect of cannabis and methylamphetamine, and as previously referred to, his criminal offending continued through his teens until he became an adult, and it continued. He was in custody at various Juvenile Justice Centres in New South Wales, including Cobham, Baxter and Kariong. He received psychiatric treatment from Professor David Greenberg when he was at Kariong and he was about 16 or 17 years of age, and apparently because he was hearing voices and was obsessional with his thinking.

74. As I previously indicated, at 18 he was transferred to the John Morony Correctional Centre. He was said to have had marked mood instability including snapping quickly and mood swings. He apparently believed that he could read other people’s thoughts and regularly felt paranoid. He was also said to have been prone to apparent depressive symptoms in recent years.

75. Dr Furst referred to his apparent brain injury when he was 12 years of age, falling off his bike and striking his head:

“He was apparently in a coma and had a 3 week admission to the Children’s Hospital Westmead. He reported feeling different after his injury including difficulty concentrating, poor short term memory, irritability and frequent mood swings.”

76. As I have previously noted, that appears to be entirely inconsistent with the actual hospital notes. At the time of this offending, he had been released from custody.

77. On bail on 15 June 2016, as I previously referred, on 9 March 2016, he was found not guilty and it would seem that he would have been released on that date but returned to custody on 11 June 2016 and received bail on 15 June 2016 before committing these offences on 25 June 2016. That is a very short space of time at liberty in the community and, as I have already noted, that was while on bail.

78. He also claimed to Dr Furst that while released during that period he was daily using cannabis and ice and 3,4-methylenedioxyamphetamine as well as cocaine on occasions. He claimed that he had been using ice on the day of the police pursuit and was paranoid as a result.

79. He provided to Dr Furst the same explanation that I previously referred to, that is, that a police officer in a hooded jumper and a beard pulled up next to him holding a gun and said, “Get the fuck out of the car”. Mr Kayirici said:

“I freaked out. I took off I didn’t know he was a police officer. He looked like a Muslim boy from the west. I was fearful for my life. I thought I was going to be killed. As soon as the siren started I stopped the car. I was bashed by police. They jumped on my head. I was badly beaten”.

80. I note that that is entirely inconsistent with what occurred, as I have previously referred to. It seems at least in relation to his assertions of having received a head injury in the past when falling from his bike and being in a coma in hospital for three weeks has led to the suggestion that it is possible or likely that he previously suffered a mild brain injury which contributes to his conduct and poor judgment.

81. As I have noted, the medical material does not support any significant head injury, and certainly not one of the nature described by the offender, and in my view, his version of what he perceived at the commencement of the police pursuit is entirely fabricated.

82. I note that both Dr Furst and Dr Nielssen have previously found him to be a person who suffers from chronic schizophrenia, a substance use disorder in remission while in custody, and an obsessive compulsive disorder. Even Dr Olav Nielssen is hesitant about the acquired brain injury, stating, “Possible development disability arising from an acquired brain injury in infancy”. From his report, I take that to be a reference to the alleged result of the fall from the bike.

83. Dr Nielssen has consulted the offender on a number of past occasions before this offending. In his report dated 13 June 2018, he refers to having prepared reports in respect of the offender on 10 February 2013, 3 March 2013, and 21 November 2015 in relation to previous matters.

84. I accept that in the circumstances it can be accepted that he suffers from chronic schizophrenia, in relation to which various medications have been prescribed for him in the past, and that he has a problem with the use of prohibited drugs, although there is no evidence other than the offender’s statements to various doctors that he was affected by any prohibited drug on 25 June 2016.

85. Dr Nielssen says that when interviewed in early 2013, soon after he stopped treatment with anti-psychotic medication, he was quite unwell but at the time of the most recent interview with him, he was comparatively calm and organised in his thinking and did not express any obviously delusional beliefs, despite not having any form of anti-psychotic medication or any other treatment for more than a year in 2015, and only intermittent adherence to treatment recently. It is no doubt for that reason that he described his chronic schizophrenia as being in partial remission.

86. The last document provided to the Court is a report of Dr Sally McSwiggan of 12 November 2018. She is a neuropsychologist and had the benefit of medical reports from the Children’s Hospital and the forensic psychiatric reports of Dr Furst and Dr Nielssen as well as the indictment and the offender’s criminal history. She notes that he is the oldest child in a family of three siblings with a younger brother with muscular dystrophy and a younger half-sister that live in the family home, his parents being divorced and him remaining close to his mother.

87. According to the offender, he informed Ms McSwiggan that his father had been domestically violent towards his mother and himself in the context of discipline. His father, after his release from custody, returned to Turkey. The offender is said to have no vocational qualifications, having gained the Year 10 School Certificate and having held employment for only short periods.

88. As to his medical history, she refers to medical records in relation to 2003 when he was 13 years of age; in 2005 when he was 15, and when he was 22 as to an assault in custody. Noting in relation to each of those that there was a query as to loss of consciousness on any occasion, and in respect of 2003, the CT scan of his brain was unremarkable. She relied on his apparent lack of recollection in relation to the accident until he was in the ambulance as being indicative of a short period of post traumatic amnesia which may indicate a mild traumatic brain injury.

89. In 2015, she notes again when he was 15 in relation to physical assault, “Query loss of consciousness. Concussion symptoms noted” and, again, because he had poor recall, that it may indicate post traumatic amnesia, indicating at least a mild traumatic brain injury.

90. As to his intellectual functioning, in essence, he is said to function within the borderline range of intelligence, his result falling at the fifth percentile compared to the normative population in his age range; that is that 95% of his age matched peers would perform better than him. His executive functioning tasks are said to be impaired, his verbal abstract reasoning borderline, and his ability to generate ideas under time conditions limited. His reading was said to be at the sixth grade level and his spelling at a high school level.

91. As to his ability to learn and retain new information, his auditory memory fell in the extremely low range, falling in the bottom 0.1 of first percentile. As to his suggested brain injury, her report indicates on the basis of the material that I have referred to when he was 13, 15 and 22, although in respect of when he was 22 her report indicates, “I have no records” that it was likely he was as a result suffering a mild traumatic brain injury.

92. She opines that the various brain insults from mental illness and trauma during the adolescent development period, in addition to limited education and chronic substance use, are likely to be the major contribution of Mr Kayirici’s borderline intellectual abilities and extremely low new learning. She notes that:

“He had been in segregation for around two years and that his rehabilitation prospects would be greatly assisted by him achieving mental stability with medication and psychiatric reviews and additional long term psychological engagement. He has a number of mental health diagnoses that require treatment, namely schizophrenia, obsessive compulsive disorder and substance use disorder. He operates intellectually in the borderline range and shows extremely low ability to learn new information”.

93. As I have indicated, I accept that the offender has problems with the use of prohibited drugs and that he suffers from schizophrenia, although it is currently in partial remission. I accept that he has some physical difficulties which make being in restricted protection difficult to accommodate. I am, however, unable to find on the basis of any of the information before me that any of the offender’s physical or mental health problems were in any way causative of the criminal offending that he is before the Court to be sentenced in respect of.

94. As to remorse and contrition, the matter proceeded as a defended trial. The offender has on no occasion expressed remorse or contrition in respect to his offending, and continues to deny the commission of any offence, although his evidence was in fact an admission as to Count 2, that is receiving. Obviously, the jury were unable to accept entirely the proposition that he only received the entirety of the stolen goods that had been taken from Greycliffe Avenue earlier that day.

95. For the purpose of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and take into account the objective seriousness of the individual sentences and the personal circumstances of the offender.

96. I am of the view that in relation to this offender, specific deterrence is a very important factor to take into account and that in relation to each of the offences general deterrence is also a significant factor to take into account.

97. As I have previously indicated in providing a sentence in respect of the special verdict, I will take into account that the jury were unable to discern between Count 1 and Count 2, and that the appropriate range to consider must be within the range as provided by s 121, that is ten years.

98. As to the prospect of rehabilitation, I am unable to say that there is anything other than a very poor prospect of the offender being rehabilitated in any way, particularly in the light of his continued adherence to being not guilty and also as a result of my conclusion that his evidence in the trial was entirely implausible and indeed fabricated.

99. As to the prospect of re-offending, he was assessed by the sentencing assessment officer as being a high risk of re-offending. I accept that as an appropriate assessment. I intend to proceed by way of an aggregate sentence and, accordingly, I am required to indicate in relation to each of the offences an indicative sentence.

100. In relation to the special verdict, I take into account the maximum available for the offence of receiving contrary to s 188. The indicative sentence is a sentence of two years and six months. In relation to the offence in short referred to as police pursuit, contrary to s 51B(1) of the Crimes Act, the indicative sentence is four years’ imprisonment.

101. The aggregate sentence is one of five years with a non-parole period of three years, nine months, being the statutory relationship between the non‑parole period and the balance of term.

102. I have not found special circumstances on any basis, including the fact of the three months spent in custody in relation to other offences, however, that period of custody of 92 days will be taken into account in determining the commencement date of the sentence in the sense of being excluded.

103. I also note in relation to the offender that at the time of the police pursuit he was in fact a disqualified driver, having been disqualified from driving from 11 March 2016 to 2 March 2017. The period of custody from 25 June 2016 and 31 May 2017 was in relation to this matter. That is a period of 340 days. The period of custody from 1 June 2017 to 31 August 2017 being a period of 92 days was a period of custody in relation to other offences, and noting the reasoning of Justice Street in R vRichards (1981) 2 NSWLR 464 (at 465) I decline to make this sentence concurrent in any way with the period provided for that offence.

104. Accordingly, he has been in custody in relation to this matter from 1 September 2017, and I will backdate the sentence to take account of the period of custody from 25 June 2016 to 31 May 2017 by backdating the sentence by 340 days. That means that the sentence commences on 26 September 2016. A non-parole period of three years and nine months means that he will be eligible for parole on 25 June 2020. The balance of term is one year and three months.The sentence will expire accordingly on 25 September 2021.

105. I have taken into account the matters, although stated in relation to the revocation of parole by Simpson J in Callaghan v R [2006] NSWCCA 58, that I could have made this sentence concurrent, partially concurrent or wholly concurrent with the three month sentence between 1 June 2017 and 31 August 2017, I decline to do so. In my view, it is appropriate that the offender has served the whole of that period in custody for entirely unrelated offences.

106. As to the submissions made by Ms Hawkins that special circumstances should have been found on the basis of the offender’s mental health and the fact that he will most likely serve the whole of his sentence in protection, or at least the non-parole period, I am of the view in relation to this offender and his past criminal history, the lack of remorse and contrition and the high risk of re-offending, that it is entirely inappropriate to reduce the non-parole period on the basis of special circumstances.

107. He has already served a significant number of periods in custody; indeed, there is some force in the argument raised by Ms Hawkins that it might be inferred that he has essentially become institutionalised. Even so, in my view, it is not appropriate to find special circumstances, which are designed to assist offenders with rehabilitation.

108. I have not taken into account in making that determination what I have said during the course of argument on sentence, or submissions on sentence, that because the offender has since been convicted in relation to these matters, and has stood trial in relation to a significant raft of very serious offences that it is inevitable that an extensive period of full time custody will be imposed in the future, when he is sentenced in respect of those matters by a judge other than me.

HIS HONOUR: Is there any matter that I have--

O’BRIEN: Yes, your Honour, there are two matters which are related. I have a certificate under s 166 of the Criminal Procedure Act.

109. HIS HONOUR: I should also note in relation to the police pursuit matter, he is disqualified for five years.

O’BRIEN: There are two matters. One is a drive while disqualified, your Honour, and the other is a resist arrest. Would your Honour deal with those matters now?

HIS HONOUR: Yes, it is almost half past four. If I don’t deal with them now, there is little prospect of me returning to them because I am only here for another week and then I am on circuit so let’s try and deal with them now.

HIS HONOUR: Mr Crown, the drive while disqualified is in relation to the fact that he was a disqualified driver at the time of the police pursuit.

O’BRIEN: That’s right, your Honour, yes.

HIS HONOUR: Maximum penalty for that is?

HAWKINS: There is a plea of guilty to the drive whilst disqualified. There is a plea of not guilty to the resist.

HIS HONOUR: All of the evidence in relation to the resist is before me - your client has given his version.

HAWKINS: He has.

HIS HONOUR: I have heard and seen the video, et cetera

O’BRIEN: Five years, your Honour, in this Court and it is 18 months even at the Local Court.

HIS HONOUR: Mr Crown, as I have indicated in relation to the facts I have essentially taken into account that during the course of the police pursuit he was in fact a disqualified driver as one of the aggravated factors in respect to that offence.

110. In those circumstances, he is convicted in respect to the offence of drive while disqualified, a plea of guilty having been indicated with no further penalty imposed. There is I think an automatic disqualification period in relation to that matter and whatever that period is I will simply make that order, but I will indicate that it should be concurrent with the five year disqualification I have imposed in relation to the drive.

O’BRIEN: Thank you, your Honour, it is five years. That just leaves the other matter then, your Honour.

HIS HONOUR: Of course, the fact is, M Crown that it will not even come into play until such time as he is released from custody, which is bound to be a long way from now.

O’BRIEN: Yes.

HIS HONOUR: In relation to the resist arrest, Ms Hawkins, as I have indicated, I am aware of the video that was played during the course of the trial. I am aware of the photographs as to his injuries tendered on sentence and indeed the footage of him going from the police vehicle into the police station on 25 June.

HAWKINS: Yes, your Honour.

HIS HONOUR: Is there anything else you’d like to say in relation to that charge, as it’s being defended.

HAWKINS: Well, your Honour, usually the matters are dealt with separately at a hearing.

HIS HONOUR: Yes, well, I could refer it back to a magistrate. It is now half past four.

HAWKINS: I know, your Honour.

HIS HONOUR: Your client would, no doubt, like to not spend a great deal more time here because he would have been inconvenienced this morning by being woken up at 4am probably in order to be brought here with a dilatory stale sandwich or two to eat for lunch and he won’t probably get anything to eat until he is back in custody, if he is lucky.

HAWKINS: He is instructing me, as I understand it, to have it remitted back to the Local Court.

HIS HONOUR: I don’t intend to waste the Local Court’s time with an offence of resist arrest in these circumstances. All of the evidence is before me and he has given evidence. I am able to make a decision on that basis.

HAWKINS: Well, I think I know what your Honour’s decision will be that if I make submissions so I mean I can make submissions, further submissions, but I would be basically saying that your Honour is aware that in this case, the accused, when he was in the vehicle in the front seat, that he was asked to put his arms out to the back seat which he did, and he was then dragged out and--

HIS HONOUR: Yes, I am aware of all that, Ms Hawkins.

HAWKINS: And he was pummelled on the ground--

HIS HONOUR: As to his evidence, but, however, I am of the view that the evidence of the police officers indicate that he did indeed resist arrest on that occasion.

So I will find him guilty in relation to the charge of resist arrest.

HIS HONOUR: Mr Crown, the maximum penalties are?

O’BRIEN: Five years, your Honour.

HAWKINS: Your Honour, I would ask on this occasion for it to run concurrent with the other sentence of the police pursuit.

HIS HONOUR: Yes.

HAWKINS: Because it was the same factual matrix, just a different part of it.

111. HIS HONOUR: In the circumstances, I record a conviction under s 10A in relation to the resist arrest and impose no other penalty.

Is there anything else, Mr Crown?

O’BRIEN: No, your Honour.

Decision last updated: 20 February 2019