R v Yildiz

[2019] NSWDC 423

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Yildiz [2019] NSWDC 423
Hearing dates:	10 July 2019
Decision date:	10 July 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years with a non-parole period of 18 months
Catchwords:	CRIME - SENTENCE - robbery in company - special circumstances to vary non-parole ratio.
Legislation Cited:	Crimes Act 1900 (NSW) s.97(1)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; Bugmy v R (2013) 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Oznur Yildiz (Offender)
Representation:	Mr Isaacs (Crown Prosecutor) Mr Webb (Counsel for the offender)
File Number(s):	2017/231585
Publication restriction:	Nil

​JUDGMENT

1. Oznur Yildiz, you appear for sentence today in relation to one offence - robbery in company. 

2. This involves a contravention of s 97(1) of the Crimes Act.  The maximum penalty for the offence is 20 years' imprisonment.  There is no standard non‑parole period.  Although there is no standard non‑parole period, there is a relevant guideline judgment, R v Henry (1999) 46 NSWLR 346.

3. The facts surrounding your offending are contained in an agreed statement of facts which you signed earlier today.  Slightly recast by me as to style, but not substance, the facts are as follows.

4. In July 2017 you were almost 18 and a half years' old.

5. In that month you became acquainted with a young person called Abdullah and two other people, one being a young person called Ramin and another person called Monty, whose ages are not known to me.  How, and in what circumstances, you came to know those three men and Ms Isabella Tumino (who was 21 years of age) is also not revealed in the material before me.  In fact I have no idea for how long you knew Ms Tumino.  All that I know is that as at 28 July 2017, you had known Abdulla for a week, Ramin for a month, and Monty you had only met on two or three prior occasions. 

6. Furthermore, in circumstances which are also not revealed to me, you came to an agreement with these people you barely knew that the group of you would rob a man coming out of a brothel. 

7. That plan was put into effect on 28 July 2017. 

8. The group, to which I have just referred, travelled in Ms Tumino's car to Ma Belle Cheri brothel in Granville about 1 o'clock in the morning. You and Ms Tumino got out of the car and walked to the carpark area of that brothel.  Whilst you were in that vicinity, either you or Ms Tumino wished to use a bathroom, and one of you tried to use the bathroom of the brothel.  You were unsuccessful in that respect. However, the significance of that fact is that you were captured on CCTV. 

9. In any event, at about half past 1 on the morning of 28 July 2017 Mr Tannous, who was aged 58 years, came out of the brothel and was seeking to leave the carpark in his motor vehicle.  He noticed you and Ms Tumino standing on the driveway. You waved at him.  You did that as part of the plan that you were putting into effect. As hoped for, Mr Tannous stopped his car and wound down the passenger side window and then you started a conversation with him.  You said, "Can you help us?  We have been kicked out of the house.  We have got no money and nowhere to stay.  Can we go back to your place?"  (I pause to observe that is an extraordinary question to have asked a complete stranger unless it had some less than savoury purpose.).  Mr Tannous said he could not take you back to his place because he lived with his mother. He said he would find you and your friend, Ms Tumino, a room. 

10. You and Ms Tumino then got into this total stranger's car and he drove away. 

11. Whilst this occurred, you were communicating with Monty using your mobile phone.  You told him to follow Mr Tannous's car and that Mr Tannous was going to withdraw some money.  Monty told you to direct Mr Tannous to Merrylands Park.  You then asked Mr Tannous to buy you some cocaine.  He told you he did not touch drugs but he would buy some for you. Again, it is quite obvious to me what the subtext of this conversation between you and Mr Tannous (a total stranger) about getting drugs was all about. 

12. You then made it clear to him, as if there were any doubt about the subtext of this conversation, that there would be no sexual conduct unless you had some cocaine.  Mr Tannous agreed to provide money to you so that you could buy cocaine and that you would thereby make yourself available for sex to him.  This was all part of the plan. 

13. Mr Tannous, this total stranger, then drove you and Ms Tumino to the Parramatta City Motel where he booked a room. You and Ms Tumino went with Mr Tannous into that room. 

14. The agreed statement of facts, somewhat coyly, records that Mr Tannous "required that each of the offenders be interviewed by him separately regarding his sexual expectations". 

15. When you got into the hotel room, you told Mr Tannous that you could call a friend who could obtain cocaine and you asked Mr Tannous for $150. 

16. It was at this point that Mr Tannous carried through with his previous indication that he wanted to "speak" with you and Ms Tumino separately.  Accordingly, he took you into the bathroom and shut the door.  He specifically asked you that, if he bought drugs, would you submit to sexual relations with him.  You did not immediately reply.  He said, "If I get you this, are we going to party, are we going to have sex?" and you said, "No, not now.  I can't do nothing if I don't have drugs in my system.  I can't be horny."  Mr Tannous then put his hands inside your tights and underwear and felt your vagina. He made an offer to have sex with you at that time.  You then repeated that you could not have sex until you had your drugs.  He then required you to masturbate him after which he said that he would go with you to get drugs.

17. You, Ms Tumino and Mr Tannous left the motel with the apparent intention of you obtaining cocaine so that you could have sex with Mr Tannous.

18. As you were driving away from the motel, you sent a message to the male members of the group: "Follow us." 

19. Mr Tannous drove to a service station where he withdrew $200. 

20. Whilst Mr Tannous was in the service station, you sent another text message to the men saying, "He's cashing out.  We're coming to Merrylands Pools." 

21. When Mr Tannous returned to the car, he gave you $150 - the purpose of which was for you to obtain cocaine. 

22. The motor vehicle which Mr Tannous was driving was then directed by you to the Merrylands Pool. 

23. In the meantime, the three men involved in this joint criminal enterprise had already driven to Merrylands Pool.  Two of them had got out and one remained in the car. 

24. When Mr Tannous arrived at the carpark, he saw Ms Tumino's red Mazda and another vehicle parked nearby.  Ms Tumino got out of Mr Tannous's car and walked towards the Mazda.  She spoke to the person in the driver's seat.  You remained in the car with Mr Tannous and spoke to someone on your phone.  You said, "Give me one bag or something".  You then said to Mr Tannous, "Come down with me.  He wants to meet you and make sure you're not a cop." 

25. You had not been talking to a drug dealer. You had been talking to one of the male co‑offenders in this joint criminal enterprise and you were not talking about obtaining drugs.  It was all part of the plan. 

26. Before you got to the Merrylands Pool carpark, it is important to note that you had sent another text message to your male co-offenders.  You said, "I full had to touch his dick."  This was not conveying some innocent piece of information.  I am satisfied beyond reasonable doubt that your intention in sending that text message was by way of complaint to your male friends of what had happened to you in the bathroom at the motel.

27. Mr Tannous got out of the car, as suggested by you, and he went to the Mazda.  As he did so, he felt a punch to the right side of his face from behind; and then he was pushed in the back and he fell to the ground.  When he looked up, he saw that he was being hit and struck by three males.  You were standing nearby and you kicked out at Mr Tannous on one occasion.  I am unable to be satisfied beyond reasonable doubt that you actually came into contact with him.  The point being, you attempted to participate in the acts of violence which others were inflicting on Mr Tannous.  He was kicked repeatedly to his head, body, ribs and back. During the assault one of the men shouted, "Why would you want to have sex with a young girl?" 

28. In the events which followed, Mr Tannous was repeatedly shouted at, abused, kicked, punched and, indeed, a firearm was produced. 

29. There is no suggestion, however, Ms Yildiz, that you were aware that a firearm (or a pistol) was to be used in the robbery which you had planned with your other co‑offenders. 

30. However, I am satisfied beyond reasonable doubt that you were aware that it was at least on the cards that some violence would be inflicted on Mr Tannous.  When you began to have that understanding I am unable to say - possibly when you sent the text message saying, "I full had to touch his dick" or, at the latest, when you observed your co‑offenders kicking and punching and you tried to joined in. 

31. Once the kicking and punching had finished, Mr Tannous was robbed of a small amount of money, some bankcards, and some identification material. He was also relieved of his car keys.  His car was locked with those keys and then one of the men threw the keys away.

32. Mr Tannous went to a residential area near the park, managed to obtain assistance from a local resident, and was subsequently taken to Westmead Hospital.  I have not been given any details of the physical injuries which he sustained in the beating he received in the park beyond being told that he had soreness to both sides of his face, jaw, ribs, back and torso. 

33. In terms of the objective seriousness of this offending conduct in which you participated, and having regard to your significant role in the execution of it (there being no material before me as to any person in the group being a more dominant person than anyone else) my finding is that it is slightly below a mid range offence for an offence of its kind. 

34. The Court has been given a victim impact statement by Mr Tannous.  It is clear that he has suffered psychological consequences from the bashing he received and the robbery.  My reading of that victim impact statement suggests, however, that the majority of the adverse consequences are more likely to flow from the physical beatings that he received at the hands of the others rather than the robbery per se.  In any event, I do not regard the content of the victim impact statement as constituting an additional circumstance of aggravation.

35. At the time that you committed this offence, as I have already said, you were 18 and a half years old. 

36. You were born in Blacktown. When you were ten years old your family moved to Auburn.  You initially went to Auburn Girls High School (in Hunter Street) and then you subsequently went to Arthur Phillip High School, which you left at the end of year 11 when you were 17 years old. 

37. What you did immediately after you left school is not presently known to me.  But, in 2018 (after you had committed this offence against Mr Tannous) you returned to Granville TAFE where you completed a business certificate. Your grades in that respect were sufficiently good that you have been admitted to the University of Western Sydney where you are studying for a Bachelor's Degree in Business.  You are clearly an intelligent young woman.

38. You have no prior criminal offences and therefore you are entitled to the the leniency which, in appropriate circumstances, is extended to a first offender. 

39. It would seem that there was some degree of violence in your household as you were growing up.  Your father is said to have inflicted violence on you and your mother - the period of time, and the frequency of which, has not been the subject of any particular evidence.  Nor is there any expert evidence to suggest that there has been any adverse impact to you by whatever the degree of violence was.  (Incidentally, it is noteworthy that, whilst you were on bail following your arrest, something happened at that house when the curfew police arrived which led to them to intervene and obtain an apprehended violence order against your father - and apparently there were some charges laid which resulted in him being prosecuted and the violence has ceased.).

40. There is not sufficient evidence before me to find on the balance of probabilities that it was a dysfunctional upbringing in the meaning of Bugmy v R (2013) 249 CLR 571.

41. You have no significant and no relevant mental health issues.

42. You have no physical health issues.

43. You have had only a limited involvement with illicit drugs. You had some limited exposure to cannabis when you were 16 and, in the month before the robbery, you were exposed to further marijuana, cocaine, Valium and Xanax with your friend Ramin.  But that was only for one month.  Since you were arrested, you have said that you have not touched any drugs at all.

44. There has been no explanation, Ms Yildiz, put before me as to why you participated in this vicious robbery on this night.  What motivated you to do it, I do not know. 

45. It is said that you are remorseful for what you did. But when you were first asked about that by your counsel in the witness box that was not what you said.  When you were first asked about how you felt about the victim you did not say, "I am remorseful."  You did not say, "I feel sorry for what I did."  Your first words, your spontaneous response, was: "I am angry at him for what he did to me in the bathroom."  It was only after you were prompted by your counsel that the words came out: "I take responsibility for what I did."  You have the onus of proving to me, Ms Yildiz, on the balance of probabilities that you are remorseful - and I am not satisfied of that. I am not satisfied of that because of the spontaneous first response to the question.  I am not satisfied about it because of your demeanour in the witness box. And I am not satisfied about it because of the lies you told the police in the record of interview which was conducted with you when you were arrested.

46. Remorse is an important factor, Ms Yildiz, in considering a person's prospects for rehabilitation.  Although I am not satisfied that you are genuinely remorseful, I have noted that you have committed no offences whilst you have been on bail.  I have noted that you had no offences before this.  I have noted that you have successfully attended TAFE courses and university. I am therefore satisfied that your prospects of rehabilitation are reasonable. 

47. You were committed for trial to this Court on 9 May 2018 on a far more serious charge than that to which you have pleaded guilty.  You were committed for trial in relation to an alleged contravention of s 97(2), that is robbery in company armed with a dangerous weapon.  You were arraigned before me on that particular indictment on Monday of this week when I embarked upon a voir dire as to whether or not the record of interview, to which I have earlier referred, could be admitted in evidence before the jury, in whole or in part.  That voir dire was never completed because, during the course of it, I raised with the Crown Prosecutor, and your counsel, the apparent slenderness of that aspect of the Crown case concerning your knowledge of the firearm.  As a consequence of the exchanges between me and the bar table, the Crown discontinued that charge and brought the charge to which you have now pleaded guilty.  It is agreed that you offered to plead guilty to that second charge when the proceedings were still in the Local Court.  I am of the view that the Crown should have accepted your offer at that time because the Crown case in relation to the knowledge about the firearm was not strong, to put it mildly.  I shall give you the full benefit of a 25% discount for the plea which you offered to make at an early time.

48. You were refused bail for approximately one month.  In addition to that, you were on strict bail conditions for at least 12 months.  Those strict bail conditions I regard as a form of quasi‑custody. The sentence which I shall shortly impose will accordingly be backdated by three months to take into account those two matters.

49. It follows from what I have just said that I am satisfied that no sentence other than a period of fulltime custody is appropriate.  Your counsel has submitted that, if I came to that conclusion, and if no other alternative sentencing option were available, I should consider reducing the ratio of the non‑parole period from 75%.  I intend to do so.

50. I make a finding of special circumstances to reduce the ratio of the head sentence to the non‑parole period:  first, because of your age; and secondly, because this will be your first time in custody. 

51. Oznur Yildiz, of the offence of robbery in company, except for your plea of guilty, I would have sentenced you to a term of imprisonment of four years.  Because of the plea of guilty and the discount of 25%, the term of imprisonment is 3 years.

52. I fix a non‑parole period of 18 months which is backdated by three months to date from 10 April 2019 and which will expire on 9 October 2020.

53. I fix a balance of 8 months to date from 10 October 2020 and which will expire on 9 April 2022.

54. Whether or not you are admitted to parole, Ms Yildiz, will depend upon your behaviour in custody and is a matter entirely for the parole authority.

55. You will now go with the officers, thank you.

Amendments

22 August 2019 - [45] 3rd line replaced "promoted" with "prompted"

Decision last updated: 22 August 2019