Regina v Serkan Toprak

[2016] NSWDC 231

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Regina v Serkan Toprak [2016] NSWDC 231
Hearing dates:	15 July 2016
Date of orders:	15 July 2016
Decision date:	15 July 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. In relation to sequence 1, being robbery armed with an offensive weapon the offender is convicted. He is sentenced to a term of imprisonment of three years with a non-parole period of two years, to date from 21 October 2015. 2. In relation to sequence 3, assault with intent to rob armed with an offensive weapon, the offender is convicted. He is sentenced to a term of imprisonment of three years with a non-parole period of 18 months to date from 21 October 2016. 3. The total effective sentence is one of four years with a non-parole period of two years and six months. The offender is eligible to be released on parole on 20 April 2018.
Catchwords:	CRIMINAL LAW – robbery armed with an offensive weapon – assault with intent to rob armed with offensive weapon – plea of guilty – offence SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – imprisonment - special circumstances - accumulation SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – violence – background of offender – Henry guidelines OTHER - familial support – drugs – methylamphetamine – “ice” – prospects of rehabilitation – mental health of offender – psychological issue – externalising disorder
Legislation Cited:	Crimes Act 1900 s 97(1) Crimes (Sentencing Procedure) Act 1999 s 5
Category:	Sentence
Parties:	Regina (Crown) Serkan Toprak (Offender)
Representation:	Counsel: Mr W Brewer (Offfender)     Solicitors: C Hyland, Solicitor for Public Prosecutions (Crown) Allied Lawyers (Offender)
File Number(s):	2015/00309135

sentence

1. Serkan Toprak appears for sentence after he pleaded guilty in the Local Court to one count of robbery armed with an offensive weapon, and one count of assault with intent to rob armed with an offensive weapon, both offences contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for each offence is 20 years imprisonment.

2. In addition the offender asks me to take into account one further count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act1900 on a Form 1.

THE FACTS

3. The parties presented an agreed statement of facts that can be summarised as follows.

4. At about 6am on Sunday 18 October 2015 the victim Sirugar Kula(?) was standing behind the counter area of the United Service Station at Rookwood Road at Yagoona. At this time the offender walked in through the front glass door.

5. The offender approached the front counter and pulled out a 30 to 40 centimetre long knife from his jumper saying, “If you don’t give me the money I’ll harm you”. Fearing for his safety the victim opened the cash register. The offender said, “Give me all the money”. The victim started to remove the cash from the till. The offender said, “Show me the money”. The victim pulled out the cash draw handing it to the offender. The offender removed all the notes before leaving the service station. The amount of cash taken was approximately $500.

6. Police were contacted and an investigation was commenced. The entire incident was captured on the service station’s closed circuit television.

7. At about 10.55pm on Monday 19 October 2015 the victim Sirkandar Riaz was working at the 7-Eleven Service Station on the Hume Highway at Lansvale when the offender was seen at the front door. At the time the door was locked. Assuming the offender was a customer Riaz unlocked the door allowing the offender into the store.

8. The offender approached Riaz who was behind the counter. The offender walked to the counter and said, “Winfield”. Riaz asked “What size and flavour?” The offender said, “Give me two packets of Winfield Blue 25”. Riaz turned his back on the offender to open the cabinet which contains the cigarettes.

9. When Riaz turned to face the offender Riaz noticed the offender was holding a 30 to 40 centimetre long knife in his hand. The offender said, “Give me all the money”. Riaz opened the cash register and removed the cash drawer placing it on the counter. The offender asked for $50 and $100 notes. Riaz said, “I don’t have any $50 or $100 notes.” The offender removed all the cash that was in the cash drawer and took two packets of Winfield Blue cigarettes before leaving. The amount of cash taken was approximately $200. The cigarettes were valued at $29 per packet.

10. Police were contacted and an investigation commenced. The offender was wearing the same clothes as in the previous offence.

11. At about 11.45pm on Monday 19 October 2015 the victim Krishna Alamie was at the front counter of the Speedway Service Station at Cumberland Highway at Smithfield. At this time the offender entered the store, picked up some items for apparent purchase before approaching where Alamie was standing outside the door to the area behind the counter.

12. The offender said to Alamie, “Give me the money, give me the money. Keep the door open and don’t lock it or I’ll kill you”. Alamie said, “What do you want?” The offender was holding a 30 centimetre long knife and put it against the outside of Alamie’s right thigh. The sharp tip of the knife was the only part of the knife that touched Alamie, causing a small cut on the outside of his thigh. As the offender pushed the tip of the knife into Alamie’s thigh he said, “How much do you have in the drawer? Give me everything”. Alamie said, “What?” The offender said, “Don’t lock the door. Don’t lock it or I’ll kill you”.

13. Alamie walked through the doorway and to the cash register that was closed. Alamie opened the cash register and took out all the $100 notes, $50 notes and $20 notes that were in the till. Alamie handed the money to the offender who was still standing at the doorway entry to where the cash register was.

14. Alamie handed the cash to the offender who put it in his right shorts pocket and ran out of the store. The amount of cash given to the offender was approximately $600. The police were contacted.

15. On Wednesday 21 October 2015 information was received by police that the offender was responsible for the armed robbery of the 7-Eleven Hume Highway, Lansvale, at the Speedway Service Station, and that he was currently residing at 95 Belar Avenue, Villawood. Police subsequently applied for and were granted a search warrant.

16. At 6pm the search was executed. The offender was interviewed by police. During the interview he was asked about his movements. The offender stated that he could not remember anything from those days and had taken an unknown amount of ice, or methylamphetamine.

17. The offender was shown stills from each of the offences. He freely admitted that the person in the stills was him, and admitted that he must have committed the offences, although he had no memory of each incident. During the interview the offender cried and appeared to show genuine remorse for his actions stating that he wanted to make amends by paying back the proceeds of the robberies.

THE OFFENDER’S CASE ON SENTENCE

18. The offender was called before me today and cross-examined. Prior to the commission of the offences he was employed as a demolition supervisor. A large number of his family are here today to support him. He participated truthfully in the interviews that gave rise to the pre-sentence report, and also the psychological report.

19. He gave evidence that he had used a large quantity of ice immediately prior to the 42 hours of offending. He had never used ice in that quantity, only using small amounts before. Before the age of 25 he did not use drugs at all. He said that it was stress from work and also hanging out with the wrong crowd that led him into drugs in the first place.

20. He left school in year 10 at age 16 or 17 because he was involved with the wrong crowd. He accepted that during the course of his life his choice of friends had been poor.

21. He gave evidence that he had previously had a problem with gambling, particularly on poker machines at hotels. On occasions when he went to gamble he met people who were undesirable. He intends not to associate with those types of people in the future. He estimates that in recent times he has put approximately $100,000 through the poker machines, giving rise to the financial constraints that led him into abuse of illicit drugs.

22. He has had no treatment for his gambling addiction but is willing to attend to treatment. He understands that he may be tempted to go back, and that treatment is an important way of preventing that from occurring.

23. He gave evidence before me today, which I accept, that he does not remember the offences in question. He accepts that he needs to change his life and address his problems to ensure that he is unlikely to re-offend. He intends not to use ice again, he wants to get out of a gaol and start a family. He is prepared to participate in counselling and rehabilitation programmes in order to allow this to happen.

24. He accepts that the victims of his offences would have been terrified, scared and upset. He accepts that they would still be scared going back to work even after these events had occurred for some particular time. He apologised in his evidence to the victims, and also to the community in relation to his actions.

25. He accepts that in the future he will deal with work stress differently and not put himself under so much pressure.

26. He has a fiancé and intends to get married when he is released from custody. He also intends to live with his father and care for him because his health is poor.

27. In cross-examination he told me that he did not intend to tell the psychologist that this was his first time using ice, he had intended to convey that it was the first time he had used ice in sufficient quantity. It was apparent from his cross-examination that he usually worked hard, namely six days a week, comprising of hours of about 7am to 5pm.

28. In the nine months he has been in custody he has been incarcerated in three different prisons. He has not, at this point, investigated any programmes for which he may be eligible. He gave evidence that he has learnt hard lessons in gaol but that it has had a positive effect on him. That drugs in the future are likely to remind him of gaol, that he does not want to be there because he does not want to associate with the type of people who he has met in prison. He believes that he has been taught a good lesson.

29. In addition he relied on a psychological report of Esperanza Egan, dated 17 June 2016. Many of the matters about which he gave evidence are confirmed by Mr Egan and I will not repeat them.

30. Importantly his parents’ separation was a significant point in his developmental history. He has reportedly, in accordance with his evidence, been involved with the wrong crowd, and also involved in gambling for some time.

31. Ms Egan opined that the offender is at risk of developing a full Externalising Disorder and he is at a crossroads in his life where, with appropriate treatment, he may be able to deviate from this course. He is at some risk of re-offending if he fails to deal with his gambling addiction, his use of drugs, and also his psychological state.

OBJECTIVE SERIOUSNESS

32. It has been submitted by the Crown, and I accept, that the Henry guidelines apply equally to an offence pursuant to s 97 of the Crimes Act. In this particular case the following matters referred to in the Henry guideline judgment are identified.

33. The offender is young, with little or no criminal history, he is 26 years of age. He has an entry for an assault with intent to rob in the Children’s Court, which I can put to one side. He has two entries for unlicensed driving, and common assault in 2014 for which he received a s 9 bond, and a s 12 bond for seven months, respectively. I do not see those as being particularly significant.

34. He was armed with a weapon, like a knife, capable of inflicting serious injury, in this case a 30 centimetre knife. There was a limited degree of planning. It is not suggested that this offences involved any degree of planning outside what is usual for these types of offences.

35. There was limited actual violence, but a real threat thereof. In two offences there were threats of violence. In one, the offender used the tip of the knife against the victim’s thigh which caused a small cut. The victims in each case were vulnerable people in that they worked at service stations who, by virtue of their hours of work, were particularly vulnerable to robbery.

36. In each case there was a small amount of money taken. In each case the Crown case was a strong one, particularly by reference to the presence of the closed circuit television.

37. I note the guideline pronounced in Henry that the ranges of sentence for offences of this character should generally fall between four and five years for the full term, however aggravating and mitigating factors could justify a sentence below or above the range in the appropriate case.

38. It was properly conceded by the Crown that the reference in Henry to the plea of guilty was as to a late plea of guilty, or the strength of the Crown case, and not a reference to the utilitarian value of the plea, and that in a proper case the utilitarian value of the plea is able to reduce the sentence provided for in the guideline judgment.

39. General deterrence is obviously of some significance in these types of offences, and that is also referred to in the Henry guideline judgment. There is a need for specific deterrence in respect of this particular offender, particularly as there is some risk of recidivism if he does not deal appropriately with the issues which he is currently facing.

40. In these matters the offender entered a plea at an early time, the Crown appropriately concedes that the discount should be the maximum available, in other words 25%. On his arrest the offender made admissions in the electronically recorded interview that also demonstrated, in my view, acceptance of responsibility for these offences, and genuine contrition and remorse.

41. I am satisfied on the balance of probabilities that the offender has good prospects of rehabilitation. He has the good support of his family.

42. This particular series of offences took place over 42 hours and seemed to be in stark contrast to the rest of his life. At the time of the offences he was employed in a very responsible position as a demolition supervisor. It was his use of ice, particularly in a large quantity, that gave rise to the offending conduct in these circumstances.

43. I am satisfied on the balance of probabilities that with appropriate intervention that the offender is unlikely to re-offend. I have taken into account the principles of totality considering that these three offences were committed within a very short period of time, being some 42 hours, at a time when the offender was significantly under the effect of methylamphetamine.

SENTENCE

44. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

45. The appropriate term of imprisonment in relation to the two offences is one of four years, those terms of imprisonment will be discounted by 25% to take into account the plea of guilty.

46. I find that there are special circumstances by references to the offender’s need for rehabilitation of his gambling addiction, and also his addiction to methylamphetamine. He also needs further support by way of psychological counselling and treatment to ensure, firstly that he does not re-offend, and secondly that he does not fall into significant psychological difficulties in the future.

47. Would you stand up please, Mr Toprak? In relation to sequence 1, being robbery armed with an offensive weapon the offender is convicted. He is sentenced to a term of imprisonment of three years with a non-parole period of two years, to date from 21 October 2015.

48. In relation to sequence 3, assault with intent to rob armed with an offensive weapon, the offender is convicted. He is sentenced to a term of imprisonment of three years with a non-parole period of 18 months to date from 21 October 2016.

49. The total effective sentence is one of four years with a non-parole period of two years and six months. The offender is eligible to be released on parole on 20 April 2018.

50. Ms Roatz, which sequence does the Form 1 relate to?

51. ROATZ: Sequence 2.

52. HIS HONOUR: I have taken into account that charge in relation to sequence 2.

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Amendments

11 October 2016 - corrected typographical error in catchwords field

27 September 2016 - Jurisdiction amended from Civil to Criminal

Decision last updated: 11 October 2016