R v Ozkocak

[2020] VCC 1961

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Indictment No. K10125673

CR-19-00692

THE QUEEN

v

GONCA OZKOCAK

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2020
DATE OF SENTENCE:	4 December 2020 (ex-tempore)
CASE MAY BE CITED AS:	R v Ozkocak
MEDIUM NEUTRAL CITATION:	[2020] VCC 1961

REASONS FOR SENTENCE

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CRIMINAL LAW – PLEA – Negligently dealing with proceeds of crime – Attempting to pervert the course of justice – Committing an indictable offence on bail – Evidence of remorse – Significant period of delay – No prior convictions – Impact on future business opportunities – Additional punishment – Principle of parsimony – Two year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

1Gonca Ozkocak, you have pleaded guilty to:  one charge of negligently dealing with the proceeds of crime, maximum penalty, five years' imprisonment[1]; one charge of attempting to pervert the course of justice, maximum penalty 25 years' imprisonment; and one charge of committing an indictable offence on bail, maximum penalty 3 penalty units or three months' imprisonment.

[1] Contrary to s 194(4) of the Crimes Act 1958

2The circumstances of the offending are set out in the prosecution opening, which was read in open court this morning and which I will not repeat and I incorporate by reference.[2]  In relation to the negligently dealing with the proceeds of crime charge this involved an amount of some $67,400 that was the proceeds of a fraud committed by your brother against the ANZ and the Esanda Finance arm of the ANZ Bank in 2015.

[2] Exhibit A on the plea.

3The background circumstances to your involvement with your brother, Sedat. He was a convicted fraudster who was at this time[3], involved with your late father, in used car dealing until he passed away. Then after that Mr Ceylan, who had served significant sentences, was unable to obtain a motorcar trader's licence, took over your late father's business, and was involved trading cars.

[3]R v Sedat Ceyan (J Robertson) (County Court Reasons Friday 19 May 2000) and R v Ceylan [2007] VCC 653

4It was in that context that your brother,12 months before this offending in what was alleged against you as an uncharged act, obtained a significant amount of money from the Commonwealth Bank by way of fraud that went through your bank account and was passed onto to him. This particular offending involved a lesser amount where your brother had used false documents to obtain a loan from the ANZ Bank.  You were unaware of that but the money went through your bank account, was receipted from the ANZ Bank and then transferred to your brother for his own uses.

5So the essence of the offence is negligently dealing with the proceeds of crime, namely the proceeds of the fraud, went into your bank account and you essentially did not register that these funds were in fact the proceeds of a fraud perpetrated by your brother.

6In mitigation in a comprehensive submission by your counsel, Mr Baker, which I incorporate[4], he pointed out that at that time in about the middle of 2015 you have recently undergone major surgery and that might explain why you really did not have the energy to resist the use of your account by your brother, and that led to this particular offending.

[4] Exhibit 1 on the plea

Seriousness of the offending

7To characterise the seriousness of this offending, as Ms Mandie, the learned Crown prosecutor point out, there was a significant amount of money involved, you have been a business woman involved in multiple businesses, you knew money comes in and out of bank accounts, so it really was an unforgivable failure by you to omit to actually ask the right questions about your brother, and so I put this as a mid-range offence.

8Turning to the most serious charge that you pleaded guilty to, attempting to pervert the course of justice, this is a serious offence, it is relatively prevalent, the circumstances of the offence and your involvement are canvassed in the prosecution opening and, indeed, canvassed in my sentencing remarks for your brother, Sedat, which were delivered on 9 October this year.[5] The police, investigated a substantial fraud by your brother against a number of victims. The particular timeline was that your brother was charged.  He had been in prison and then he had made an application for bail and that had been refused by the learned magistrate.  The offending that he was charged for and then you were also charged with, was back in 2015.  So it was stale by the time he was arrested and you and he were charged as well as other members of your family.

[5]R v Ceylan [2020] VCC 1644

9So he was sitting in prison after he was refused bail by Beach JA.[6]  He then instigated the phone calls using another inmate's number, to his former wife that sought to have the main Crown witness, Mr Yaydemir, not turn up at the Committal Hearing which was due to occur about in in October 2018.  The idea was that to get him to admit that in fact what had occurred was a commercial arrangement rather than a fraud, which was the evidence he was going to give and which was in fact the truth. You were to get a recording of him saying that and that was to be used by your brother in order to abort the committal hearing.

[6] See Re Ceylan [2018] VSC 361

10Your particular involvement was that you were the subject of a phone call from your brother and as alleged in the charge against you, the offence occurred between the 21st and 22 July 2018. You arranged for the recorded conversation to be digitally edited. There was a conversation between Mr Yademir and your brother, that you facilitated by the use of your phone and your computer for it to be edited and it was going to be used then in the committal.  You were not the instigator, it was not your idea but you did participate.

Seriousness of the Attempt to Pervert the Couse of Justice Offence

11So characterising the seriousness of the offence, it does strike at the heart of the criminal justice system when people to seek to manipulate witnesses and manipulate evidence. The Court of Appeal has said on multiple occasions that in general this offence should call for a sentence of imprisonment.[7]  Your explanation for the offence, through your counsel, was that this is a case of misguided family loyalty, the offending should be seen as in the lower range because it was over this confined period of two days, and your limited actual role in facilitating the editing of this tape of this recorded conversation, which had occurred, in a sense, before your involvement.  So you are to be characterised, and I accept the submission of your counsel, as an example of a lesser species of seriousness for this particular offence. There was no premeditation by you as you were just the subject of a phone call, that you were brought into by your brother, made through a different phone number.

[7] See Byrne v The Queen [2015] VSCA 294 (Priest & Kaye JJA) [33],

12The final offending that you have pleaded guilty to is the offence of committing and indicatable offence on bail, as you were on bail at the time when you committed the offence of attempt to pervert the course of justice, so this offence in these particular circumstances has a lesser characterisation of seriousness.

13So looking at your offending overall, it was the two major offences for a woman who previously had no prior convictions, it was a significant lapse of judgment on your part and your pleading guilty to both of the offences, that are of such seriousness they may have a significant impact on your creditworthiness and be relevant to your business reputation. So that is an additional punishment stemming from your plea of guilty to this offending.

Matters in Mitigation

14I turn now to matters of mitigation.  I will not go through them in detail.  They are canvassed in the competing submissions that I have exhibited from your counsel and from the learned Crown prosecutor.

15It is significant that your plea to both of these offences has wrapped up, as far as you are concerned, a major investigation, and proceedings on behalf of the prosecution in this matter.  You were not responsible for the delay in them being brought to fruition because it was your brother that took every point known to man in the committal proceedings and the delays involved in a major piece of litigation like this that led to it ultimately taking nearly three and a half years from when the original arrests were made in early 2018.

16So the plea itself is significant because it does facilitate the course of justice.  It obviated a significant trial involving the proceeds of crime charge, and also a significant trial involving the pervert the course of justice charge.

17And so the delay is a factor.  The learned Crown prosecutor accepted, particularly in relation to the proceeds of crime charge, there was a significant period of delay.  It is a very stale charge.  So I also accept that it is evidence of remorse.  Both the pleas are evidence of your remorse and inside into your offending, and it is a significant matter for you as a business woman to actually plead guilty to of both these types of offences, so I accept that is significant in this matter.

Personal history. 

18I will not canvass it because it is fully canvassed in the comprehensive submission by your counsel.  You are of Turkish extraction.  you were born in Turkey. Your family came out here when you were aged 3.  They were successful in a sense, migrants to this country, although your father fell into drug dealing and ended up in prison at some stage and this led to all sorts of problems within the family and you had to sort of take over his business. There were business failures, burnt down properties, failures in supermarkets that you were involved in, and so you have had to bear a lot of business burdens throughout your adulthood.

19You have successfully married.  You have got three successful adult children, two of them still living at home, one with a fiancée.  I have seen two very poignant references from two of your children.[8]  I give them weight but I give them lesser weight.  What else would a child say about their mother and, indeed, their father, but I note them.  I also note a reference from a former employer, Mr Bogaveski.[9]  He has known you for six years.  He regards you as a hard working employee and, indeed, your own personal history where you have had a number of ventures, that you have got yourself up after they have fallen down.  So that is not surprising that he is giving you a very good reference, and on the plea it indicates that you are presently engaged in a recent business of cleaning up building sites.  So that is all relevant.  You come before the court with no prior convictions.  It is relevant to an assessment of your prospects of rehabilitation, which I would categorise as very good.

[8] Exhibits 3 and 4.

[9] Exhibit 5.

20I will not go further through the full family history that has been set out.  You have got your VCE, although you did not end up going to university but, as I said before, after a disaster with the car yard and other businesses you were involved in, you had to take over the business of your father, and that was the circumstances in which you have gone in with your brother, who led you into error in this particular, the dishonesty charge that you are facing in relation to the proceeds of crime, but notwithstanding that you have kept going and you have been successfully employed in recent times and then established this other position and brought up these three children, successfully married, your husband's got a business.  So all that and you had to get over the significant surgery you had to have.

21So I want to turn now to the appropriate sentence in this matter.  It was canvassed in the sentencing indication hearing yesterday.  After considering the matter I have accepted the submission of the prosecution and your counsel that this should be dealt with by way of a non-custodial disposition.  The sort of involvement you have had in this attempt to pervert the course of justice would in the past have possibly attracted a suspended sentence, which of course is not available, and the Court of Appeal has said, and the legislation says that community correction orders are an appropriate sentence which would otherwise in the past have been a suspended sentence.[10]  So given your antecedents and your role in the attempt to pervert the course of justice case where there was no premeditation, it was your brother's idea, he was the instigator and you had a very limited engagement in the actual offending.  I regard it as appropriate to impose a community corrections order on you.

[10] See Boulton v The Queen (2014) 46 VR 308

22The Court of Appeal has said on a number of occasions that community corrections orders are onerous sentences and they do meet the requirements of the community of denunciation, general deterrence, specific deterrence and rehabilitation.[11]  Given your good personal upbringing and lack of any criminogenic traits, there is no need to impose any particular treatment order on you, but the order that I am proposing to place you on is a two year community corrections order on the offence of attempt to pervert the course of justice and order that you perform 175 hours of community work over that period and that you be under supervision of a Community Corrections officer over that period.

[11] Ibid

23In sentencing you I am required to look at the purposes of sentencing, which are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you I have got to 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.  I have got to take into account the maximum penalty, along with the circumstances of the offending.

24The various sentencing considerations that I referred to previously are canvassed in the two competing sentencing submissions by the learned crown prosecutor and by your counsel, and synthesising those two competing submissions, I have decided that an appropriate sentence for the attempt to pervert is a community corrections order.  In relation to the charge of negligently dealing with the proceeds of crime, as I canvassed with your counsel, there is a serious amount of money involved.  Its negligence is the lowest of the sort of proceeds of crime charges in terms of culpability, and in those circumstances I regard a monetary penalty to be the appropriate sentence. In relation to the committing an indictable offence on bail, I propose to impose a monetary penalty on that.

25So I have taken into account all the matters that have been put by your counsel.  In particular, the delay, which goes in your favour, the fact that you have not committed any offending since either of the two offences that you are pleaded guilty to, that you have got no prior convictions, your personal circumstances as a successful, in a sense, daughter of a migrant bringing up your children, putting them all together and characterising your involvement in the attempt to pervert the course of justice as being on the lower scale of the offending.

26I will not ask you to stand but the sentence I am going to impose are as follows:

27On the charge of negligently dealing with the proceeds of crime you are convicted and fined $4500.  On the charge of attempting to pervert the course of justice you are convicted and sentenced to a two year community corrections order, that is to include 175 hours of community work, and on the charge of committing an indictable offence on bail you are convicted and sentenced and ordered to pay a fine of $500.

28I declare that had you not pleaded guilty I would have imposed an aggregate sentence of 15 months' imprisonment with a non-parole period of nine months.[12]

[12] Pursuant to Sentencing Act 1991, s6AAA

29I have got to explain the sentence to you, Ms Ozkocak.  You have got a copy of the community corrections order.  You are required to attend at the Coolaroo Community Corrections office within two working days or give the a ring.  The phone number is there.  For the next two years you are on a good behaviour bond effectively, which means if you commit an offence carrying a term of imprisonment that breaches the order, a breach of the order carries a three months' maximum of imprisonment term. You have got to receive visits from the Office of Corrections if they ask to come and visit.  You have got to be under their supervision for that period, obey their lawful directions and get their permission to leave the State, and you are also required to perform 175 hours of unpaid community work over that two year period.  With community work, they are just getting it back off the ground due to the COVID.

30I have applied the principle of parsimony in sentencing you.  In other words, to impose a sentence that is a less coercive sentence that is possible, bearing in mind that imprisonment should be a sanction of last resort.  So unlike your brother, Ceylan, I have determined that the community can be served by a non-custodial disposition in relation to this matter, and so I have applied that principle in sentencing you.

31Are there any other matters, Madam Prosecutor?

32MS MANDIE:  No, Your Honour.  There were just a couple of things that Your Honour said in your reasons that, just for the record, I just want to correct.

33HIS HONOUR:  Yes.

34MS MANDIE:  Just one about the utilitarian benefit of the plea.

35HIS HONOUR:  Yes.

36MS MANDIE:  Just for the record, what would Ms Ozkocak actually would have faced is all of the fraud charges and many false so it is actually a very long, complex trial that was avoided.  So just for the record.

37HIS HONOUR:  Yes.

38MS MANDIE:  Those two charges were just in the resolution.

39HIS HONOUR:  Yes.  Well, I accept that, Ms Mandie.

40MS MANDIE:  Yes.

41HIS HONOUR:  And certainly I was fully aware of that.  There was a lot of charges she was facing that have been wrapped up in that.

42MS MANDIE:  Yes.

43HIS HONOUR:  Yes.

44MS MANDIE:  That is right, and well, that is really the only point, Your Honour, yes.

45HIS HONOUR:  All right.

46MS MANDIE:  Just to clarify it.

47MR BARKER:  Your Honour.

48HIS HONOUR:  Yes, Mr Barker.

49MR BARKER:  I have forwarded the original copy of the CCO to my client, who has signed it and returned it, but your associate sent me a new version just as you started delivering your sentence.  I have forwarded that to my client now.  She can sign it and return that once the court breaks.

50HIS HONOUR:  Yes, thank you for that, Mr Barker.

51MR BARKER:  The other matter, Your Honour, is I would seek a stay of three months on the payment of the fines.

52HIS HONOUR:  Look, Mr Barker, the fine system has changed.  Now there is some agency called Fines Victoria.  They deal with that sort of thing.

53MR BARKER:  Yes.

54HIS HONOUR:  So the courts do not do that anymore, so I - - -

55MR BARKER:  Thank you, sir.

56HIS HONOUR:  It has been referred to Fines - - -

57MR BARKER:  Not many of my clients get fines.

58HIS HONOUR:  Well, you have got one now.  All right, look, I want to thank both counsel in this matter and congratulate Ms Mandie for the work she has done in resolving this matter and you, Mr Barker, for your cooperation and resolution of the matter so far, it is not finished as far Ms Mandie is concerned, but she is getting there.  So I want to thank you both and I want to wish Ms Ozkocak all the best in the future.

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