DPP v Kaya [2025] VCC 1897

1. Exhibit P1 is the Amended Summary of Prosecution Opening upon Plea dated 21 August 2025. It forms the factual basis upon which you are to be sentenced.
2. On 31 August 2024, your co-accused, Can Sahin, attended a semi-rural property located in outer-north Melbourne. The victim is the owner of that property.
3. Mr Sahin attended the property with a real estate agent who showed him through the premises. The walk through lasted some 15 to 20 minutes. Telephone data from his telephone indicates he was present near the vicinity of the property for several hours.
4. Between 31 August 2024 and 1 September 2024, you and Sahin forced entry into those premises and surrounding sheds and stole a significant quantity of property. That conduct constitutes Charges 1 to 5 on the indictment. Included in the property you stole were the following items:

(i) an Australian passport in the victim's name;

(ii) two Australian Defence Force medals awarded to the victim;

(iii) a Soldiers Medallion awarded to the victim;

(iv) A$2,000;

(v) US$1,000;

(vi) keys to the address and outbuildings, as well as to the victim's motor vehicle;

(vii) numerous hand and power tools; and

(viii) assorted jewellery.

1. In a garage near the main property, you and Sahin forced open the victim's firearm safe by ripping the safe off its base and thus gained access to firearms secured in the safe. You and Sahin stole three firearms as well as a significant quantity of ammunition, a firearm cleaning kit, and an ammunition box. The theft of the firearms constitutes Charges 2, 3 and 4.
2. You and Sahin were seen on CCTV recordings at the property on 31 August 2024. You were both wearing gloves, carrying torches, and wearing hats.
3. The burglary and theft were discovered by the victim on 2 September 2024. He immediately reported the incident to police.
4. Mr Sahin's car had earlier been identified parked at the front fence of the property by a family friend of the victim. The registration details of Sahin's car were recorded on a dash camera.
5. Mr Sahin was arrested on a later date by police. He provided the personal identification number to his mobile phone allowing investigators to access its contents. Analysis of his telephone contents and call charge records show there was communication with you that had been deleted prior to Sahin's arrest.
6. You were identified by police on the internal CCTV recordings from the property. You were arrested at your home address on 5 September 2024. You were taken to Broadmeadows police station for interview. You denied all knowledge of the burglary and thefts. You were released following the interview, while police continued with their investigations.
7. Police investigators accessed your mobile phone and found your internet history searches on 3 September 2024. The history shows searches for various firearms, including the model of an air rifle stolen from Webb's address.
8. Investigators also identified an ATM cash withdrawal made by you at 11:15 pm on 31 August 2024. CCTV recordings from the ATM show you leaving the front passenger seat of Sahin's vehicle wearing clothing and shoes matching those worn by one of the offenders seen on CCTV recordings from the Webb property.
9. On 13 September 2024, you were arrested in relation to driving offences. Police searched your car and found in the boot's wheel well, a Magnon long-arm rifle scope. This scope was stolen from the victim's premises. You were taken back to the Broadmeadows police station where you were again interviewed in relation to the burglary. You were then remanded in custody.
10. Investigators have not recovered the majority of the stolen property or firearms.

1. You have admitted your prior convictions. They date back to 22 October 2015, when, for offences of possessing methylamphetamine, theft of a motor car, and contravening a Family Violence Safety Notice, you were, without conviction, fined an aggregate sum of $2,000.
2. On 9 September 2016, you were sentenced to 21 days' imprisonment and placed on a Community Correction Order ('CCO') for a period of 18 months on two charges of stalking, a charge of making a threat to kill, a charge of intentionally destroying property, a charge of intentionally damaging property, and a charge of unlawful assault.
3. You contravened that CCO and on 24 March 2017, you were sentenced to an aggregate term of imprisonment of 60 days and placed on an 18-month CCO.
4. On 21 January 2019, on two charges of contravening a Family Violence Intervention Order, a charge of driving while disqualified, and a charge of theft of motor vehicle, you were convicted and placed on a 12-month CCO. You were also in breach of the CCO imposed on 24 March 2017. The contravention was found proven. You were convicted and fined $350.
5. On 5 July 2019, you were convicted and fined $500 on charges of theft of a motor vehicle and obtaining property by deception.
6. On 21 June 2023, on charges including possession of drugs of dependence, committing an indictable offence on bail, dealing with property suspected of being the proceeds of crime, and dishonestly retaining stolen goods, you were placed on a CCO for a period of 12 months.

1. You were born in Turkey in April 1978. You are now 47 years of age.
2. You grew up on a farm in Turkey and report a healthy and positive relationship with your parents and six siblings.
3. In 2007, your father, with whom you were very close, passed away from cancer. In 2010 you came to Australia, leaving your mother and siblings behind.
4. You report having struggled in Australia due to a combination of factors, including adjusting to life without your father, language barriers, and a lack of support. You gradually gained a support network within the Australian Turkish community.
5. You are married and met your wife not long after your arrival in Australia. Together you have a daughter who is now 13 years of age. You speak to your wife and daughter from the prison each day by telephone and you have a Zoom meeting with them each week. They remain supportive of you.
6. Exhibit D2 is a psychological report of Dr Aaron Cunningham dated 7 August 2025.
7. Dr Cunningham notes that you left the family home around the age of 14 or 15 and relocated to the city to source income for your family. You then entered military service in Turkey for 18 months before returning to live with your family.
8. You told Dr Cunningham that after you completed primary school you trained as an automotive mechanic and worked as a mechanic on ships in Turkey.
9. In Australia, you were initially employed as a mechanic between 2010 and 2012, then commenced your own mechanical repairs business. You report a steady work history having maintained full time employment, notwithstanding your drug use.
10. You informed Dr Cunningham that you and your wife lost a child when your wife was seven and a half months pregnant, some 15 years ago. You state you began abusing drugs after the loss of the child, having been introduced to methylamphetamine by a friend. You report never having engaged in drug rehabilitation or detoxification. You blamed your drug use for your offending.
11. Psychometric assessment performed by Dr Cunningham shows that you fall within the average range of non-verbal fluid intelligence and that there is no indication of mental state difficulties such as psychosis or thought disorder.
12. Dr Cunningham considers that ceasing drug abuse would be the main factor in reducing your risk of further offending.
13. As stated, you have been remanded in custody since 13 September 2024. You appear to have made the most of your time in custody, completing a number of courses, including the 'Ice and Me' program. (See Exhibit D3.) You have also established and attend to a fruit and vegetable garden in the prison. You told Dr Cunningham that your time on remand has been a 'blessing in disguise'.

1. At the plea hearing, I was informed that your co-accused, Can Sahin, had the charges against him listed for trial. Since then, I have been informed that Mr Sahin was sentenced by Judge Ellis of this Court on a single charge of burglary, one charge of theft of a firearm, and one charge of theft, to an aggregate term of imprisonment of 10 months to be followed by a 24-month CCO. I have read her Honour's sentencing remarks and note that Mr Sahin did not have any prior convictions, although he had a subsequent conviction for burglary for which he was placed on a CCO. Mr Sahin also faces the prospect of deportation, and her Honour took into account his potential loss of opportunity to establish a life in Australia with his young family, and the stress upon him in custody in the knowledge that he may be deported. Her Honour also found that Mr Sahin will face additional hardship in custody knowing that he will be unable to support physically, emotionally, and financially his pregnant wife. Her Honour found that Mr Sahin had strong prospects of rehabilitation.
2. The offences to which you have pleaded guilty are serious offences as reflected in the maximum penalties that may be imposed.
3. Your counsel conceded that your offending was very serious, involving the violation of the victim's home and property rights, and the theft of items of sentimental value.
4. In his written submissions, Mr Leslie stated that the offending may be characterised as opportunistic, submitting that there was no evidence that you knew of the existence of the items stolen beforehand, particularly the firearms and ammunition secured in the safe.
5. Mr Leslie referred me to a number of comparative cases.[1] I have had regard to each of them.
6. Your counsel submitted that your time on remand has been well spent. You have had now an extended period of drug abstinence, and you have taken the opportunity, it was submitted, to assess your life and the benefits of remaining drug free.
7. Reliance was placed on your pleas of guilty and the utilitarian benefits that flow from those pleas of guilty.
8. Your counsel conceded that a term of imprisonment is appropriate and submitted that I should sentence you to time served and then place you on a CCO.
9. The learned prosecutor who appeared at the plea hearing, Ms Albarella, submitted that your offending fell within the mid-range of seriousness, and that I should sentence you to a term of imprisonment coupled with a non-parole period.
10. Ms Albarella submitted there was a degree of planning involved in the offending. She further submitted that the firearms have not been recovered, and you have not said anything to police that would assist them with the recovery of those firearms. Ms Albarella also submitted that there is no evidence of your remorse for your offending.
11. With regard to your criminal history, Ms Albarella pointed to the fact that you have contravened CCOs on three occasions and that you have not taken any steps, when in the community, to overcome your drug problems. Furthermore, it was submitted that sentencing considerations of deterrence, denunciation, just punishment and protection of the community should take precedence over your rehabilitation.

1. In my opinion, the offending was serious. I accept the prosecution submission that your offending falls within the mid-range level of seriousness.
2. I reject your counsel's submission that your overall offending was opportunistic.
3. You instructed your counsel that you were informed about the proposed burglary on the evening of 31 August 2024, by your co-accused. Even if that is so, this was not opportunistic offending. You and your co-offender went to the victim's premises, which had earlier been surveilled by Sahin, intending to commit a burglary and theft. You did not have to proceed with the offending. You had time to reconsider your involvement, but you chose instead to travel with Sahin to the victim's premises, and break into and steal items of value from those premises. You wore gloves and a hat, and had with you torches. This was far from opportunistic offending.
4. While you may not have known of the existence of the precise items stolen or that firearms were kept at the premises, you went there intending to steal. On discovering the gun safe, you and your co-offender ripped it from its base to gain access to whatever was inside of it. On seeing the firearms and ammunition, you stole those items, intending, it was put by your counsel, to sell them.
5. Offending such as this is not without consequences. I have had full regard to the victim's victim impact statement. Your offending has had a significant impact on the victim's emotional wellbeing and that of his wife. He has been left with a deep sense of fear and vulnerability. He and his wife no longer feel safe in their home. He has become hypervigilant. The loss of his Australian Defence medals, after serving 40 years in the Australian Army, has devastated him. He has also suffered financial loss as a result of your offending.
6. As earlier stated, your counsel referred to a number of comparative cases including Barry v The Queen.[2] However, that decision was an application for leave to appeal. Although McLeish JA granted leave to appeal, the appeal was ultimately dismissed, the Court of Appeal holding that the sentences imposed at first instance were not manifestly excessive.
7. In the leave application, McLeish JA stated that the maximum penalty of 15 years' imprisonment for the offence of theft of a firearm, recognises that 'theft of firearms, as opposed to other types of theft, contributes to the illegitimate flow of firearms in the community and in turn, may facilitate serious criminal activity.'[3] His Honour also stated that the risk presented by the theft and sale or distribution of firearms exists regardless of whether the theft is opportunistic or premeditated.
8. The firearms you stole, I was told, have not been recovered. You have contributed to the illegitimate flow of firearms in the community. You have not assisted the authorities to trace those firearms.
9. In determining the objective gravity of your offending, I have had regard to the maximum penalties that may be imposed for each offence. I have earlier referred to those penalties.
10. Your moral culpability, in my opinion, is high. Nothing has been put on your behalf which, in my opinion, reduces your level of culpability. While it was submitted on your behalf that you have had a longstanding issue with methylamphetamine abuse, it was not suggested that I should accept that as a mitigating factor. Your abuse of methylamphetamine might explain your behaviour but it does not excuse it. Your counsel conceded that you have had past opportunities to address your drug addiction through CCOs. Previous CCOs, including the most recent, have included conditions for the assessment and treatment of drug abuse or dependency.
11. At the time these offences were committed you were on bail and subject to a curfew. The fact that you were on bail is an aggravating feature of your offending.
12. I have had regard to your pleas of guilty and the utilitarian benefits of your pleas. A contested committal hearing took place on 3 March 2025. Your pleas were first indicated at the second directions hearing of this matter on 2 May 2025. You were arraigned on 29 May 2025 and pleaded guilty to all charges. I do not accept the submission of your counsel that your pleas of guilty were entered at an early time. They are, however, mitigatory and entitle you to a reduction in sentence. Through your pleas you have spared the victim the ordeal of having to give evidence at trial, and you have spared the community and the Court the time and cost of a trial. You have accepted responsibility for your offending. In the absence of other evidence, I am not prepared to accept your pleas of guilty as evidence of your remorse.
13. As earlier stated, you have prior convictions, including for dishonesty offences. You have three prior convictions for contravening CCOs. The offences before me were committed by you a little over two months following the completion of your most recent CCO. While you are not punished again for your prior convictions, they nevertheless are relevant to my assessment of your moral culpability for this offending, your prospects of rehabilitation, the need to deter you from further offending, and the protection of the community from you.
14. Regarding your prospects of rehabilitation, it is encouraging that you report that your current incarceration has marked a 'turning point' in your life and that you have undertaken courses in custody that may facilitate your rehabilitation. You also have skills that will assist you to find employment upon your release and you continue to enjoy the support of your wife and daughter. However, given your significant history of offending and drug abuse, your prospects must be viewed with a good degree of caution. While you report abstinence from all illicit drug use, that has occurred in a controlled environment. The real test for you will occur upon your release. Your prospects must, at this time, be viewed as guarded.
15. As earlier mentioned, I have had regard to the cases to which your counsel referred in my consideration of current sentencing practise.[4] I have also had regard to other cases of this Court and the Court of Appeal, as well as the sentence imposed on your co-offender.[5]
16. Current sentencing practise is one of the considerations to which I must have regard. It is not the controlling factor. The types of offences for which I must sentence you, as a review of sentencing cases show, are committed often in a wide range of circumstances, and the personal circumstances of each offender often vary markedly. I have done my best to take those matters into account.
17. A consideration in your case is the sentence imposed on your co-offender and the principle of parity. Since the plea hearing, both counsel have filed written submissions concerning the principle of parity. Your counsel submitted that having regard to the differences between you and Sahin, different sentences are warranted.
18. In Collins v The Queen, the Court stated:

The principles governing parity are well-established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[6]

1. Mr Sahin pleaded guilty, shortly prior to trial, to one charge of burglary, one charge of theft of a firearm, and one charge of theft. The latter two charges were 'rolled up charges'. He also pleaded guilty to a summary charge of possessing ammunition. On the basis of the factual summary in your case, Sahin appears to have had a more active role in the offending, in that he was involved in attending at the property earlier in the day and being shown through it by a real estate agent. He was also present in the vicinity of the property, it would seem, for several hours prior to the burglary. However, there are a number of important differences in your personal circumstances. As I have already stated, Mr Sahin did not have any previous convictions at the time of this offending. He was not a person prohibited from possessing a firearm. He tendered at his plea hearing good character references as well as a letter of apology. Judge Ellis accepted that he was remorseful for his behaviour and her Honour found that Sahin had good prospects of rehabilitation. Mr Sahin was also able to rely on the prospect of his deportation as a mitigating circumstance, and her Honour accepted the application of the hardship principle in Markovic v The Queen.[7] Judge Ellis considered the fact that Mr Sahin did not have any prior criminal history a 'significant factor' in mitigation.[8]
2. In my opinion, the considerations in Mr Sahin's case to which I have just referred provide a sufficient basis to distinguish the sentence to be imposed upon you from that imposed on Mr Sahin, notwithstanding what might appear to be his greater role in the planning of the offences, and the late entry of his pleas of guilty.
3. I must also have regard to the need for deterrence, denunciation, just punishment and protection of the community from you. Given your history of criminal offending, specific deterrence is a significant consideration. The sentence to be imposed must seek to deter you from further offending. It must also serve to protect the community from you. The sentence must also send a message to others in the community that if they commit burglaries and thefts of the type you committed, they will be met with stern punishment. Your conduct must be strongly denounced, and you must be suitably punished.
4. I have regard to the fact that these offences occurred during the one episode. It is appropriate to have regard to the totality principle and direct that there be significant concurrency.
5. I do not accept the sentencing submission of your counsel that you should be sentenced to the time you have served and then placed on a CCO. To accede to that request would not pay sufficient regard to all the relevant sentencing objectives. Mr Kaya, please stand.

1. Charge 1 - Burglary - you are convicted and sentenced to 16 months' imprisonment.
2. Charge 2 - Theft of firearm - you are convicted and sentenced to 20 months' imprisonment.
3. Charge 3 - Theft of firearm - you are convicted and sentenced to 20 months' imprisonment.
4. Charge 4 - Theft of firearm - you are convicted and sentenced to 20 months' imprisonment.
5. Charge 5 - Theft - you are convicted and sentenced to 14 months' imprisonment.
6. Charge 6 - being a Prohibited person possessing a firearm - you are convicted and sentenced to three months' imprisonment.
7. The sentence imposed on Charge 2 is the base sentence. I direct that four months of the sentence imposed on Charge 1 and four months of the sentence imposed on Charge 5 be served cumulatively on each other and on the base sentence.
8. This makes a total effective sentence of two years and four months' imprisonment.
9. I set a non-parole period of one year and six months.
10. Section 18 - The period of imprisonment reckoned as already served under this sentence is 459 days, not including today.
11. 6AAA - Had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of three years and four months' imprisonment with a

non-parole period of two years and four months. 12. Mr Moschanas, are there any other matters? 13. MR MOSCHANAS: Only a disposal order, Your Honour. 14. HIS HONOUR: I will make the disposal order as sought. 15. Thank you for your assistance, we will now adjourn the court. 16. COUNSEL: As your Honour pleases.

[1] Barry v The Queen [2021] VSCA 321; DPP v Duguid [2019] VCC 713; Benkic v The Queen [2019] VSCA 34; DPP v Edwards (2019) VCC 1096; DPP v Snell (2024) VCC 474; DPP v Williams [2024] VCC 1296; DPP v Godino (2020) VCC 419.

[2] [2021] VSCA 321.

[5] Barry v The Queen [2022] VSCA 94; Burke v The King [2023] VSCA 233; Ralph v The Queen [2022] VSCA 185; DPP v Hope [2020] VCC 1191; DPP v Joiner [2020] VCC 994; DPP v Cotchin [2018] VCC 1894.

[6] [2015] VSCA 106, [23].

[7] [2010] VSCA 105; (2010) 30 VR 589.

[8] Sentencing Reasons in DPP v Sahin dated 25 November 2025 at par. 81.