R v Oygur

[2017] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:	R v Oygur [2017] NSWDC 278
Hearing dates:	11 May 2017
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years
Catchwords:	CRIMINAL LAW – Sentence – Form 1 - Assault with intent to rob whilst armed with an offensive weapon – Prescription drug addiction
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149
Category:	Sentence
Parties:	The Crown Rahmi Oygur
Representation:	Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender
File Number(s):	2016/170096; 2016/170107

Sentence

1. HIS HONOUR: There has been much talk in recent times of the delays in the District Court. If through some miracle we could remove drug related offences from the lists, the delays in the District Court would evaporate overnight. That is because drug related crimes make up the bulk of the work in the District Court.

2. I have already sentenced five people today. Each of those sentences was for an offence involving drugs or an offence committed to satisfy a drug addiction. Today was not an unusual day. Those addicted to drugs can rarely satisfy their addiction through legal means. It is commonplace for addicts to resort to criminal activity in order to obtain money to buy drugs or, as in the case I am dealing with now, to get drugs directly. Drugs cause enormous harm in the community. Drugs cause harm directly to those who use them, but all of us suffer as addicts commit offences so that they can obtain drugs to satisfy their addiction.

3. The offender Rahmi Oygur has had a drug addiction for many years, at least 30, he now being 56 years of age. He has served time in custody for drug related matters and although at times there appear to have been gaps in his offending, particularly from 2005 to 2011 after he did the MERIT program, relapse into drug use and associated relapse into offending has been a feature of Mr Oygur’s adult life.

4. He had been seeing a doctor in Blacktown who had been prescribing him with a skin patch known as Duragesic. It is a narcotic analgesic. Mr Oygur freely admits that he was abusing that substance. He had back pain but he certainly did not only get drugs to help him with that condition. He used them not only to treat his back but also because of the narcotic effect the drugs provided.

5. At about 11 o’clock on 31 May 2016 he went to his doctor. The doctor had discovered that Mr Oygur was doctor shopping. He refused to give him a prescription for Duragesic. Mr Oygur did not take that well. He became upset and police had to be called to remove him from the location.

6. Later that day at about 2.30 in the afternoon he went back to the medical practice. He walked in and confronted the doctor who had quite understandably refused to prescribe him with what he wanted. Mr Oygur took hold of the front of the doctor, around his chest, pushed him backwards and when they struggled the doctor was forced into a wall causing him to suffer from a sore back. Eventually Mr Oygur was pushed away and he left the surgery. This offence was captured on CCTV as is the next series of offences I am going to describe.

7. The assault on the doctor is a common assault, it appears on a Form 1 attached to an offence of assault with intent to rob whilst armed with an offensive weapon. That offence was committed very shortly after Mr Oygur left the medical practice. Having been thwarted in his desire to get a prescription for Duragesic he decided that he would just get it directly. He armed himself with what is described in statement of agreed facts as a ‘wooden skewer’. How dangerous this weapon is I do not know. I am told it was approximately 15 centimetres in length but whether it was a small bamboo skewer such as one might use in cooking a barbeque, or something much more dangerous, I do not know. No doubt when CCTV footage is shown on television tonight members of the public will be able to make an assessment that I am unable to make.

8. The offender walked into a pharmacy, and went behind the counter. The pharmacist, Ms Gabila, was working there. Mr Oygur made his intentions obvious, “where is the Duragesic” he said, “where is the safe”.

9. To emphasise his request or should I say ‘threat’ he was pointing the wooden skewer into Ms Gabila’s jumper at the time. She said, “The safe is not here”. Mr Oygur responded by grabbing her by the arm and repeating “where is the safe”. Ms Gabila started to call out for help.

10. There were two other staff members in the premises, a Ms Nikolaou and a Ms Van den Nieuwewhuizen. Ms Nikolaou approached the offender and said “get off her”. He responded by grabbing her by the hair and pulling her to the ground whilst holding the wooden skewer to her chest. She fell to her knees bumping her hip against something on the way down. Mr Oygur continued to repeat “Where is the safe. Where is the Duragesic”.

11. The other employee, Ms Van den Nieuwewhuizen, ran behind the counter and pressed the alarm button before also going up to Mr Oygur and saying ‘Leave her alone. Leave her alone.”

12. Ms Nicolaou then grabbed up a walking stick and starting pointing it at the offender in an attempt to stop him.

13. Mr Oygur began to drag Ms Gabila, the pharmacist, around by the hair whilst asking where the safe was located. She said, “The safe is not here. I have to get the keys. I can’t get the keys while you’re holding my hair”. He then let go of her hair and grabbed her around the back of the neck with his left hand.

14. Attracted by the commotion a customer, Long Trieu Vo, ran inside. He lunged at the offender. He is to be congratulated for what he did because this caused Mr Oygur to let go of Ms Gabila. He tried to grab the wooden skewer out of Mr Oygur’s hand but the offender punched him in the lip. In response, Mr Vo kicked Mr Oygur. At the same time Mr Oygur moved towards Mr Vo causing him to fall backwards and land on the ground. The offender ran out from the back of the counter towards the front door. He then ran towards Ms Van den Nieuwewhuizen and pushed her to the ground causing her to land on her back. She felt immediate pain and swelling to her right hand. He then ran away. As I said, this offence was captured on CCTV.

15. Police approached the offender at an address in Merrylands a few days later. Whilst they were speaking to someone in the location they saw Mr Oygur running away. They chased after him. When he was arrested he was discovered to have a small quantity of cannabis in his possession. He was interviewed at the police station. He agreed that he went to the Blacktown medical practice to obtain Duragesic and said that he had no recollection of attending the pharmacy or the incident that occurred there, having taken some Xanax tablets that afternoon.

16. During the interview with police the offender apologised for his actions at the pharmacy on a number of occasions. He expressed his remorse when speaking to a psychologist for the preparation of a report in this matter, and he expressed his remorse yet again in evidence before me.

17. Mr Oygur is now 58 years of age. He was born in Turkey and is the youngest of a family of three boys. His family came to Australia when he was about ten years of age. It was a happy and close family for many years. They built homes next to each other, they lived in each other’s homes, they ran family businesses together, but once the offender started using drugs concertedly, once he went to gaol for cultivating cannabis, he has lost contact with his family. His father disowned him and his brothers have gone their own ways. He has now had no contact with any member of his family for many years.

18. Whilst in custody he receives no visits, no telephone calls or letters from family, friends or anyone at all. He is isolated to a significant degree.

19. As the Crown reminds me, an offence of this kind is not simply an offence against property, it is an offence which involves real fear being engendered in victims. The offence of an armed robbery was the subject of the second guideline judgment ever promulgated by the Court of Criminal Appeal, such was the seriousness with which the Courts viewed sentencing for such offences. For the commonly postulated offence the Court held that an offence of four to five years could be expected. That of course is not a straightjacket but it is an indication of how serious offences of this kind should be treated.

20. In this case the offender is not a young offender with little or no criminal history, I have already mentioned his age on a couple of occasions, and he certainly has a criminal history that cannot be described as “little”. There are offences which are drug related, I have already mentioned him going to gaol for cultivating a commercial quantity of cannabis, and there are offences of violence as well.

21. I have already mentioned the difficulties in assessing the seriousness of the weapon with which he was armed. The common offence spoken about in R vHenry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 referred to a weapon like a knife capable of killing or inflicting serious injury. I frankly just do not know how knifelike that skewer was but it is agreed that it was capable of inflicting serious injury.

22. There appears to have been some planning. The offender was thwarted when he tried to get the prescription and certainly armed himself with a wooden skewer, but how much planning that required is debatable. Certainly the fact that he did not attempt to disguise his identity, and the fact that he was wearing the same clothes when he was arrested two days later do tend to suggest that the offence was somewhat impulsive in nature, and certainly was driven by what Mr Oygur perceived to be a need for him to obtain drugs.

23. There was actual violence inflicted, not only a threat of violence. It is to be noted that the violence directed towards Mr Vo and Ms Van den Nieuwewhuizen is reflected in other charges which appear on the Form 1

24. Mr Devine who appears for Mr Oygur accepts that the victim of the assault with intent to rob whilst armed offence was in a vulnerable position but that vulnerability flowed only from her position being a shopkeeper, she was not alone, it was not night, she had no physical infirmity for example. Nothing was taken and the offender pleaded guilty at the earliest opportunity, unlike the plea of limited utility referred to in Henry.

25. The plea of guilty has a utilitarian benefit which is to be reflected in a discount on sentence and so the sentence I impose upon Mr Oygur will be 25% less than it would otherwise have been.

26. The offender suffers from back pain and a number of consequences follow. His time in custody will harder than it would otherwise have been. For obvious reasons narcotic analgesics are not easy to obtain in custody (lawfully anyway). Another consequence of his condition is that upon his release from custody there is risk that he will once again abuse the type of drugs that he was abusing when he committed these offences. He was asked about that when giving evidence and Mr Oygur said that he understands this risk and intends just to put up with his pain upon his release from custody, or if necessary to visit a pain clinic. Certainly the prospects of rehabilitation of Mr Oygur are uncertain. At 58 years of age he must be getting too old to live the life that he has been living. Prisons are certainly not comfortable places for 58 year olds with back pain.

27. There are special circumstances in this case. Mr Oygur’s long‑term problems with drugs will need careful attention upon his release from custody in order to assist him to stay out of trouble. Special circumstances are not found as a favour for him but because if he continues to offend, then he will continue to harm other people in the community. It is in the community’s interests, as well as Mr Oygur’s, that he be given as much assistance as possible upon his release from custody to avoid relapsing into his old ways.

28. Of course I have to take into account the matters on the Form 1. That means that there has to be an increase in the sentence that I impose for this matter to reflect the offences on the Form 1 that the offender has asked me to take into account.

29. I impose a sentence of imprisonment consisting of a non-parole period of two and half years with a head sentence of five years to date from 2 June 2016.

30. The non-parole period will expire on 1 December 2018 on which day Mr Oygur is eligible to be released to parole.

31. I recommend that Corrective Service Authorities pay attention to the reports and recommendation of Ms Anna Robilliard, psychologist, in particular her recommendation that whilst in custody Mr Oygur be offered the opportunity to do the EQUIPS addiction program.

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Decision last updated: 17 October 2017