R v Yurtsever
[2015] VCC 38
•28 January 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-01840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
HASAN YURTSEVER
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2015 | |
DATE OF SENTENCE: | 28 January 2015 | |
CASE MAY BE CITED AS: | R v Yurtsever | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 38 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Walton | OPP Victoria |
| For the Accused | Mr S. Ginsbourg | Simon English |
HIS HONOUR:
1 Hasan Yurtsever, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis and theft of electricity.
2 The prosecutor, Ms Walton, summarised the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening upon Plea’ which was tendered.
3 In brief, you grew cannabis in a DHS property leased to your ex-wife when she was overseas.
4 The crop consisted of 32 plants weighing 62.99 kilograms, and was grown in three rooms.
5 An electric bypass system had been installed, and this was the subject of the theft charge. The value of the electricity was not estimated, but the crop was grown over two months, between late April and late June 2014.
6 The circumstances are somewhat unusual, it being conceded that the crop was grown for your own use rather than as a commercial venture.
7 You pleaded guilty at the earliest reasonable opportunity, and although you answered "no comment" to some questions when interviewed, you also made some admissions. Remorse was conceded by the prosecution. Of course you must benefit from your pleas of guilty.
8 On arrest you were remanded in custody for 23 days before being released on CISP bail.
9 I will make the disposal order as sought. I will also make the order sought for the taking of a forensic sample. My reasons will appear in the order. You must understand that a police officer may use reasonable force to obtain the sample.
10 Your counsel, Mr Ginsbourg, tendered a number of exhibits. These included a report from your local doctor with x-ray material and drug screening attached, a series of CISP reports, a psychological report from Daniel McGuire, and a neuropsychological report prepared by a clinical neuropsychologist, Anna McLaren, and overseen by Dr Linda Borg, also a clinical neuropsychologist. Character evidence was also called on your behalf.
11 Mr Ginsbourg outlined your background and an outline of submissions was tendered. You are Macedonian and are aged 72, having been born on 1 January 1943. You migrated to Turkey with your family, aged 20, and were married at 25. You migrated to Australia, aged 28, in the hope of continuing your professional career as a cyclist. This was not to be and you undertook employment in a number of jobs such as factory worker and cleaner, and significantly as a bouncer from your mid 30s for 16 years. It was in the setting of this employment that you engaged in heavy drinking and your marriage of 32 years broke down.
12 The neuropsychological report details a number of car accidents in which you were involved. The most significant was in 1995, resulting in serious shoulder injury. You continue to suffer neck and shoulder pain, as well as episodic back pain, heart disease and anxiety.
13 The central thrust of your counsel’s submission was that you were driven to offend, as you did, to meet a cannabis habit of 20 years, dating from your shoulder injuries, in an attempt to relieve physical pain at first, but later, psychological pain as the consequence of “loneliness, emptiness and disconnection,” as Mr McGuire described it.
14 You have made commendable progress since being released on bail. You had the considerable benefit of the CISP program. You undertook drug counselling, stopped using cannabis and sought alternative treatment for pain. You have some cognitive deficits which are thought to be most likely connected to your long standing heavy cannabis use and poor vascular health.
15 Mr McGuire considered that you had gained control of your substance use and were “on the right track”, and he was confident that you had the skills and ability to remain abstinent, however I think it clear that you remain vulnerable to relapse to substance abuse.
16 You have a criminal history. In particular you were imprisoned in 1983 for importing and possessing drugs. You pleaded not guilty but were convicted and were sentenced to five years imprisonment with, curiously, a non-parole period of six months. This prior matter is clearly relevant, but it was over 30 years ago.
17 A number of people attended court to support you, including family. You were living with a friend, although I was not told anything about the current state of your relationship with her.
18 Character evidence was given concerning your involvement with a soccer club which you have attended twice weekly for the last six years. I accept that drug use is not tolerated at the club and that you have been warned that were you to relapse into drug use you would be expelled from the club. I was told you were in tears when you confessed your offending and accept that you clearly value your connection with the club and are likely to be under scrutiny.
19 Your counsel submitted that I should impose imprisonment to mark the seriousness of the cultivation offending, but only for the period you have already served in combination with a Community Correction Order, and impose a CCO for the theft charge as well as part of an aggregate penalty.
20 The prosecution accepted that release on a CCO was appropriate. I had you assessed and you were found suitable.
21 I further discussed the submission concerning the imposition of 23 days imprisonment with the parties and expressed the view that this may be something of a token gesture, and that in the circumstances it would be appropriate to simply impose an aggregate Community Correction Order concerning both charges. This is what I propose to do.
22 I also noted that having read the tendered material more carefully than I did whilst on the Bench, I think that the conditions should include treatment and rehabilitation for both drugs and alcohol, despite the fact that there appears to be no immediate problem with alcohol. The risk of relapse into substance abuse, given the continued pain you suffer, requires this, as I see it.
23 I also accept the recommendation that pain management strategies be monitored by those supervising you. Accordingly, you will be convicted on both charges and released on a Community Correction Order for a period of 18 months. As well as the standard conditions I will impose the following conditions:
24 That you undertake unpaid community work for 100 hours pursuant to s.48C.
25 Pursuant to s.48D, the treatment and rehabilitation condition, you are to undergo assessment and treatment for drug abuse or dependency pursuant to s.48D, sub-paragraph 3(a), and assessment and treatment for alcohol abuse or dependency pursuant to sub-section 48D, sub-paragraph 3(b).
26 I also intend to impose a condition pursuant to s.48D, sub-paragraph 3(d), concerning medical assessment and treatment, with particular emphasis on your pain management strategies being monitored by those supervising you. So I am not limiting that condition but merely emphasising the primary purpose for it; you will be under supervision pursuant to s.48E. Anything that I have overlooked or I have left out that you can identify?
27 MR GINSBOURG: Just the location, Your Honour.
28 HIS HONOUR: You will be provided with documentation but you will be required to attend at the office at 87 Synnot Street, Werribee, Victoria, and you will be required to do that by 4pm on 30 January, which is in 48 hours' time. My associate's prepared the documentation. I will hand it down to counsel, would you check for me? It is in much more elegant terms than I could have expressed. And I have the 464 order and the disposal order and I will sign them now.
29 MR GINSBOURG: The parties are content with the terms of the order and the accused has signed it, Your Honour.
30 HIS HONOUR: Thank you.
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