DPP v Yilmaz [2023] VCC 767

Russell Crossman accepted the job. 3. On arrival at the address, the two police members walked up the driveway and turned into an area where a number of cars were parked at a unit complex. They saw a male seated in the front passenger seat and you in the driver seat wearing a face mask and dark clothing. Leading Senior Constable Crossman tapped on the window to get your attention, but you did not look at him. 4. The vehicle was a 2014 silver Audi wagon with number plates BGN 948. Police tried opening the driver's door, but it was locked. You started the car's engine and both police officers move back down the driveway and behind the police vehicle. 5. You drove the Audi out of the driveway, past the police vehicle. As at that date, Mr Yilmaz, you were disqualified from driving (Summary Charge 21 - drive whilst disqualified). 6. Police members got back into their police car and followed you through suburban streets, with lights and sirens activated. 7. The Victoria Police Air Wing continued to inform police members on the ground of the Audi's progress, and also confirm that the vehicle had been stolen (Charge 1 - theft of a motor vehicle.) 8. At approximately 1.27 am, following an alert from the Air Wing, the same police members stopped in the driveway of 17 Ashleigh Crescent, Meadow Heights. They parked their police vehicle at the top of the driveway, where there was a fence barrier on either side. Police believe that their police car had boxed the Audi into the property. 9. Leading Senior Constable Adam Canteri arrived with his police dog, approaching officers Brown and Crossman and they began to walk down the driveway. The police then saw that the Audi had begun to move again. Officer Canterri yelled at the other members to get back. They had walked about halfway down the driveway but returned to their vehicles to get out of the way. Officer Crossman got back into the police car, intending to apply the brake, in a further attempt to block the Audi into the property, but thought better of it, and exited the vehicle whilst Brown stood in the middle of the road. 10. Senior Constables Danello Caruso and Bruno Fugliaro were now also at the scene in their marked police unit. 11. You twice drove the Audi up and down the driveway in an aggressive manner. Then you drove it through the dividing wooden fence into the backyard of

15 Ashleigh Crescent, Meadow Heights, destroying part of the wooden fence and brick retaining fence (Charge 2 - intentionally damage property). 12. Leading Senior Constable Canteri and the police dog moved across the driveway, to better observe the driveway. They took cover behind a brick wall and you drove past them at speed (Charge 3 - aggravated reckless exposure emergency worker to risk by driving). 13. Due to the damage to the fence, there was no room for the Audi to exit the property. The police needed to take evasive action, to avoid being struck by the Audi, as you drove it past Crossman's police vehicle, up the driveway and out into the street on Ashleigh Crescent. The front of the Audi was extensively damaged. 14. Police pursued the Audi with other units joining the pursuit. They activated lights and siren, but you did not stop. 15. You continued to drive the damaged Audi at a fast rate of speed. You and your passenger exited the vehicle. Police parked their vehicle behind the Audi, got out and ordered you to stop. 16. On sighting the unmarked police car, you ran back to the driver's seat of the Audi and began reversing it at speed, narrowly missing the unmarked cars.

You exited the driveway and left, travelling north on Uplands Court.

Police chased your passenger and arrested him. 17. You continued to drive the Audi at lower speeds and police continued their pursuit of you for another 30 minutes through the streets of Dallas, with Air Wing providing continual updates. 18. In your attempt to escape from police and to avoid the stop sticks deployed by various police units, you were seen to drive through a red traffic signal at the intersection of Pascoe Vale Road and Barry Road; drive with your headlights turned off; drive on the wrong side of the wrong and drive through the wrong side of a roundabout on multiple occasions. At approximately 2.20 am, a civilian was forced to take urgent evasive action, to avoid a collision with you, when you were driving on the wrong side of the road with headlights off, and the Audi mounted the nature strip and footpath during that near miss (Charge 4 - dangerous driving whilst pursued by police). 19. Eventually, you surrendered yourself to police at the intersection of

Sydney Road and Lydia Avenue, Campbellfield. There was extensive damage to the front of the Audi. On arrest, you were initially communicative, but a short time later you lost consciousness and police requested an ambulance. 20. Police conducted a search of the Audi. They located Xanax tablets inside a black satchel belonging to you (Charge 5 - possess drug of dependence; Alprazolam). 21. They also located two number plates, for vehicle BAO 489 (Charge 6 - handle stolen goods), together with a MacBook Air and various keys (Charge 7 - handle stolen goods) and a flick knife (Summary Charge 24 - possess prohibited weapon). 22. In addition, they discovered a plastic bottle containing 1,4-Butanediol (Charge 8 - possess drug of dependence). 23. You were transported to the Northern Hospital. At the hospital, cannabis was found in your pocket (Charge 9 - possess drug of dependence). 24. At 3.15am on 4 February 2021, a blood sample was taken from you at the hospital. Analysis of the blood sample was positive for methylamphetamine (Summary Charge 26 - fail blood test within three hours of driving).

1. Mr Yilmaz, your conduct, and particularly your driving in the early hours on

4 February 2021 was clearly dangerous and reckless. It appears your offending was influenced by your drug use at the time. 2. Charge 3 requires the imposition of a custodial sentence, unless an exception is enlivened. No such exception was relied upon in your case. It is an inherently serious charge, clearly designed to protect police emergency officers going about their duty and jobs. In such a case, general and specific deterrence, denunciation and protection of the community are important sentencing considerations. You were in a stolen motor vehicle at the time and appeared motivated to avoid police apprehension and had little, or no, regard to the welfare of the police who had attended the scene. Understandably, Officer Canteri was extremely fearful that he and his police dog could have been struck by you. 3. I accept that the charge itself is broad and capable of encompassing a range of different conduct varying in seriousness. In your case, there is no dispute between the parties that this is a low-level example of the offence. I have closely watched the Air Wing footage of the circumstances surrounding this charge, as played in court, and exhibited at the plea hearing. I have also been assisted in an assessment of the location, by reference to the Google Street View image provided by your counsel. I accept and adopt the characterisation of the offending on this charge as sitting at the lower end. I accept your counsel's submissions that in the circumstances the actual danger to the officer was at the low end. The timeframe of this particular offending was short. It was unsophisticated and unplanned. And the offence was committed ancillary to wanting to escape out of the driveway. 4. In relation to Charge 5, that is dangerous driving while being pursued by police, in assessing its objective gravity I take into account that it is clearly constituted by several different act, including failing to stop and driving through the wrong side of a roundabout. 5. In relation to the theft of motor vehicle, it is not alleged that you are the person who originally stole the car, but clearly you assumed the rights of the owner. In respect of the drug matters, I take into account that the charges concern relatively small quantities and I am satisfied that they are for personal use.

1. Mr Yilmaz, you entered a plea of guilty at an early opportunity and this warrants a significant discount in sentence. Your plea of guilty is important for its utilitarian value and there will be a greater amelioration of sentence in accordance with the Worboyes principles. I also accept that your plea of guilty demonstrates remorse. Further, I take into account your more recent expressions of remorse. Psychologist Mr Jeffrey Cummins reports that you apologised for your offending and acknowledged that you have no one to blame apart from yourself, and that it was you who made the decision to be dependent on drugs. You told Corrections during your recent assessment that you were embarrassed and remorseful, and that at the time of the offending you had made, 'bad choices and bad friends'.

1. You were approximately 31 years of age at the time of the offending and you are now 34. In terms of your history, briefly, your parents were born in Turkey and later migrated to Australia, where they met and married. Your father is an engineer. Your mother is not engaged in paid employment. You have a good relationship with both parents and speak to them almost daily in custody, although your relationship with your father has not always been a positive one.
2. You have one sister, with whom you also have a good relationship. Your sister has a family in Melbourne and two children.
3. You have been to Turkey several times and at one point had intended to live there permanently. You were required to undergo military service and completed 15 months as a foot soldier. In the end you did not enjoy life there and decided to return to Australia.
4. While growing up, your father was physically and verbally abusive to you. The history of abuse is so significant that it has been the basis for multiple recent diagnoses of post-traumatic stress disorder.
5. You completed part of Year 9 when you were expelled. You struggled at school and experienced learning difficulties and bullying. You also started smoking cannabis. After leaving school, you used cannabis most days as you were not working and had a lot of free unstructured time.
6. You first used methylamphetamine when you were 16. Since then, you have developed substantial abuse issues with methamphetamine, heroin, GHB and prescription drugs, including Alprazolam. You have used drugs most of your life, including many of your periods of imprisonment. You have been hospitalised for overdoses multiple times in the past. As already noted, you were using cannabis and methamphetamine at the time of the current offending.
7. As for past employment, you have previously worked as a qualified electrician, however ceased due to your relapse into drugs. In more recent times, you have worked with your father in trade systems a few times a week, and apparently you are able to return to the same form of employment.
8. I take into account your upbringing, which is marred with verbal and physical violence and abuse, both at home and at school. Your history is likely to have rendered you more susceptible and vulnerable to drug use and to have triggered your complex PTSD.
9. Mr Cummins notes that you have previously been diagnosed with PTSD (as a result of the abuse during your formative years). He confirms a diagnosis of complex PTSD, which is the clinical diagnosis applicable when a person is suffering from multiple triggers of PTSD.
10. Mr Cummins also assessed that you function intellectually at below average, but above borderline. In sentencing you, Mr Yilmaz, I take into account the opinions of Mr Cummins and your mental health, though I note that it is not suggested the Verdins principles had application in your case.[1]

1. You have a relevant violent history for offending, which includes driving, drugs and dishonesty matters. Amongst these, on 27 August 2014, you were placed in a community corrections order (CCO) for dealing with property suspected to be proceeds of a crime and possess methylamphetamine. On 11 May 2016, the order was breached, cancelled, no further order made. On this date, you were dealt with on a consolidation of matters, including prohibited person; possess firearm; and drug offences, and sentenced to an aggregate term of imprisonment. On 24 September 2019, you were sentenced by this court for charges that included theft, handling stolen goods and prohibited person possessing a firearm, to a total effective sentence of two years and six months imprisonment, with a non-parole period of 20 months, with a substantial declaration of PTSD.

1. At the time of this offending, you had been released on parole. You were granted parole on 13 May 2020, and you were released on 3 June 2020.

Soon after your release on parole, you stopped taking your medication that you had been prescribed in custody and felt that this caused your circumstances to rapidly deteriorate. Your mother gave evidence earlier in these proceedings about this particular period of time. You were released to live with your parents and initially did well. COVID hit and consequently a number of your scheduled appointments could not proceed or were replaced with Zoom appointments. She soon noticed a change in your behaviour and knew that you were back using substances, though you were in denial about this. 2. On 4 February 2021, when you were initially remanded on these matters, you owed time to the Adult Parole Board. Your parole was cancelled and you served the entire period of parole, which expired, as discussed today, on 19 October 2021. Consequently, at the initial plea hearing, on 26 October 2021 you only had seven days of pre-sentence detention. Your pre-sentence detention currently stands at 68 days. 3. The principle of totality is important in your case, and it requires generally that I have regard to the sentence I impose, and that which you have already served pursuant to your cancelled parole. I also take into account that you've lost the opportunity to seek concurrency and that your cancelled parole was served in onerous conditions that were (necessarily) not taken into account when the sentence was first imposed. 4. While in custody during the initial period and as demonstrated by the material tendered on your behalf, you made considerable efforts to progress your rehabilitation. This included actively and regularly participating in psychological counselling with the Forensicare psychologist; working as a drug and alcohol peer educator; and attending Narcotics Anonymous at least weekly since 25 February 2021. Also, you engaged with the Odyssey House admissions process, and were granted a bed in October 2021, pending release from custody.[2] In sentencing you, Mr Yilmaz, I take these matters into account, along with the more restrictive and onerous conditions in custody at that time, because of the impact of the COVID-19 pandemic on prisons. I take into account that you suffered lockdowns, reductions in time out of your cell, suspensions of visits and change of conditions. 5. At the plea hearing on 26 October 2021 your counsel, Mr Barker, urged the court to defer sentence and to allow you an opportunity to attend Odyssey House and to engage in treatment. On 12 November 2021, the court deferred sentence and bailed you to the Odyssey House Residential Rehabilitation program, so as to assess your capacity for and prospects of rehabilitation and to provide you with an opportunity to participate in the program. 6. A letter from Odyssey House of 3 February 2022 confirmed your admission on 15 November 2021.[3] Further, it confirmed that you had remained substance free and had completed the initial assessment phase of the program on

10 December 2021. At that stage, you were also attending group therapy sessions twice a week and had completed four weeks of an eight-week psychoeducational course on emotional regulation. Further, you were assigned a job function of business officer, where you were able to demonstrate responsibility, reliability and good communication skills with staff and residents. 7. On 7 February 2022, you failed to appear at court for a judicial review of your bail deferral, and on this day a warrant was issued. The warrant was executed on 6 April 2023. 8. The letter from Odyssey House on 26 March 2023 confirms that you had reached the Level 1 stage of the program and participated in group therapy twice a week. While in treatment, the community experienced an outbreak of COVID-19.[3] Odyssey House management made the decision to offer residents the option to temporarily exit treatment during the outbreak or remain on site and be required to isolate. You decided to temporarily exit treatment on 31 December 2021 and to reside with your parents during the outbreak. On 10 January 2022, you returned to Odyssey. Soon after, on 3 February 2022, you chose to exit treatment, following the result of a random urine analysis which indicated that you had methamphetamine in your system. 9. The disruption in your treatment at Odyssey House due to the COVID outbreak is regrettable, and your return home for a short period of time was destabilising. While you did return to Odyssey House in early January, very soon after you tested positive for drug use. 10. In respect of your period in residential treatment, I take this into account, in accordance with the principles in Akoka.[4] I will give full weight in the exercise of my instinctive synthesis to your period of time at the facility, and your active engagement in treatment. 11. Subsequent to leaving Odyssey House in February 2022, your circumstances have been somewhat unstable and you've largely couch-surfed for that period of time, up until your remand on 6 April of this year. I also note that you have been charged with another unrelated offence during this period, although presently this matter remains outstanding in the Magistrates' Court. 12. Upon choosing to exit Odyssey House you were in breach of your bail. You then subsequently failed to attend at court, as required, and remained at large in the community until your arrest in early April 2023. This is obviously a concern, Mr Yilmaz, to the court, and impacts on an assessment of your rehabilitative prospects. 13. However, it also appears that during this period, that is, after you exited Odyssey House, you commenced voluntary drug treatment for a substantial period of time. A letter was tendered on your behalf from alcohol and other drugs clinician, Nikki Tyzzer of the Salvation Army STAR program. She confirms that on 22 June 2022 you self-referred to their program. They conducted a comprehensive assessment of you. Consequently, you were referred for counselling and Care and Recovery Coordination. You completed an episode of complex counselling, consisting of 13 sessions between September 2022 and February 2023. Ms Tyzzer herself had been working with you in a care and recovery coordination capacity since December 2022. She considered that your mental health needed urgent attention and treatment, as it was connected to the underlying causes of your substance use. 14. I agree with your counsel's submissions, that your circumstances are somewhat unusual. While you clearly placed yourself in breach of your bail, you were also, it seems, well engaged in community treatment for the period leading up to your remand. This offers some indication to the court that you are motivated to, and capable, of addressing your mental health and addiction issues.

1. In your case, Mr Yilmaz, assessing your rehabilitative prospects is therefore a complex task. There are matters of obvious concern including: your offending while on parole; your failure to seize the opportunity provided by Odyssey House; and your prior criminal history. Balanced against such considerations are the considerable efforts you made in custody before you were released on deferral; your positive engagement with Odyssey for over a two-month period, which was unfortunately disrupted; and your continued voluntary engagement in drug and alcohol counselling up until your arrest.
2. In all of the circumstances, after careful consideration of your case, I am prepared to accept that you presently present with reasonable prospects of rehabilitation. As Mr Cummins identified in his earlier report, your main risk factor is a return to illicit drugs. You require ongoing treatment for your mental health and drug issues and you have shown that you are capable of meaningfully engaging in such treatment. I note that the recent MHARS report indicates that upon your return to custody you have commenced on an anti-psychotic medication, Olanzapine. You have identified a positive benefit from the medication and that you intend to continue taking it in the community.
3. I also take into account that you have the continuing support of your parents. They do not like your offending, but they remain supportive of you. You are also newly engaged and your partner provides you with further motivation. Upon your release, you will be living with your parents and fiancé in Craigieburn.
4. Also as submitted on your behalf, I take into account that there has been some delay and that the offending is now over two years old. A substantial portion of the delay was caused by your failure to comply with the deferral period, but I accept that delay remains a relevant consideration, particularly in an assessment of the attempts that you have made towards your rehabilitation during this period, as I have already canvassed.

1. The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation, and protection of the community.
2. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty, in particular the aggravated reckless exposure of an emergency worker charge.[5] I also take into account the maximum penalties and the principles of parsimony, proportionality and totality. In particular, totality will be reflected in the orders for cumulation, noting that the offending occurs over the course of the one incident, and that there is some overlap, though this also needs to be considered in light of the presumption of cumulation that applies in respect of Charge 3.
3. It was accepted by both counsel that Charge 3 on the indictment necessarily attracts a term of imprisonment, and one that cannot be combined with a community corrections order. In respect of all matters, the prosecution submits that a term of imprisonment structured by way of a non-parole period is the appropriate sentence. Your counsel submits that on the remaining matters, a combination sentence is within range and appropriate or a CCO. I had you assessed for an order, and you were assessed as suitable. You told the author that you would like to do a further order to seek treatment for your drug use and to have supervision appointments. The MHARS report also considered that you could benefit from learning practical psychological skills, to self-manage your mood, emotions and thoughts.
4. In relation to Charge 3, I agree that the only available and the only just and appropriate sentence is a term of imprisonment. In respect of the remaining matters, Mr Yilmaz, synthesising all relevant factors and very closely considering your case, including the seriousness of your offending and the mitigating matters advanced on your behalf, I will impose a sentence which includes, as a component of it, a CCO. As the court stated in the case of Boulton:

Even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by short term of imprisonment, if coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances, and the causes of the offending directed at rehabilitative purposes.[6]

1. Turning now to the sentence that I will impose. I am going to go through the individual sentences and then I will come to additional orders. Charge 1, theft of motor vehicle, four months imprisonment. Charge 2, criminal damage, two months imprisonment. Charge 3, the aggravated offence recklessly exposing the emergency worker, eight months imprisonment. Charge 4, the dangerous drive whilst being pursued by police, five months imprisonment. Charge 5, possess drug of dependence, that will be a fine, convicted and fined $150.
2. Charge 6, handle stolen goods, two months imprisonment. Charge 7, handle stolen goods, two months imprisonment. Needless to say, all of these sentences are with conviction. Charge 8, possess drug of dependence, I will impose a fine with conviction of $150. Charge 9, possess cannabis, you are convicted and discharged. Summary offences: drive while disqualified, can I indicate here will attract a CCO but I am going to come to that in a moment. The charge of possession of prohibited weapon, you are convicted and fined $200. And the charge of failing blood test within three hours of driving, you are convicted and fined $650.
3. In respect of the fines, can I indicate, that your current capacity to pay, the other sentences imposed and your circumstances have been taken into account, which has caused a moderation in the amounts.
4. Charge 3 is the base sentence. One month on Charge 1 and two months on Charge 4 are cumulative on Charge 3, which totals a period

of 11 months imprisonment. Otherwise, the sentences of imprisonment are to be served concurrently, just to be clear. On Charges 1, 2, 4, 6, 7 and as indicated, the summary charge of driving disqualified, I am also imposing a CCO of 15 months. Pursuant to s40 of the Sentencing Act, this effectively, counsel, is the one order given that the events and the charges are founded on the same facts. All right? 5. In terms of the conditions of the order, they will be as follows: there will be the mandatory conditions. The additional conditions are as follows: I am imposing 80 hours of community work, but I will offset that against treatment in its entirety. Treatment and rehabilitation for drugs; treatment and rehabilitation for mental health; treatment rehabilitation program. I will also impose a judicial monitoring date. That may or may not continue, but I am certainly going to impose it at least for that initial stage. The date is 4 March 2024 at 9.15am. 6. HER HONOUR: Pursuant to s18, I declare 68 days as pre-sentence detention. 7. HER HONOUR: Now, Mr Yilmaz, I am required to make mandatory orders against your licence. Mr Barker, can I just ask, when was it that Mr Yilmaz was last fully licenced? Do you have instructions? 8. ACCUSED: Your Honour, as - as far as I know, I am fully licenced at the moment. I lost them for four years and then I just got them back, like, last year or something. 9. HER HONOUR: All right. I am required, in respect of all matters, effectively but for one, to interfere with your licence. It is mandatory and it is for mandatory terms, all right? So, what I am proposing to do - Charge 1, which is discretionary, in terms of the period of time, I must disqualify you, I do so, from obtaining a licence or permit, and I do that for a period of six month. 10. ACCUSED: Yes, Your Honour. 11. HER HONOUR: Charge 3, which is a serious motor vehicle offence, as defined by s87P(ba) of the Sentencing Act, I cancel any drivers licence or permits imposed, for a period of disqualification for the minimum period of 24 months.

On Charge 4, I disqualify you from obtaining a licence or permit. Again, for a minimum period of 12 months. And in respect of the summary of offence, I impose that is the failed blood test within three hours of driving, I impose a minimum period of 12 months disqualificatoin. 12. Having regard to all the factors that I have canvassed, and also the punitive nature of such orders and relevant rehabilitative factors that I also should have regard to - what I propose to do in respect of the cancellation of licences is order that they are to be served concurrently, which means that the total period therefore of disqualification is 24 months. All right? 13. HER HONOUR: There were disposal orders for the flick knife and drugs, and they were by consent. Correct, counsel? 14. MR BARKER: That's correct, Your Honour. 15. HER HONOUR: All right. I make those orders. Pursuant to s6AAA, but for your plea of guilty; it is a difficult and a bit of an artificial task here, but I would have sentenced you to a term of three years and two months' imprisonment with a

non-parole period of two years and two months' imprisonment. 16. HER HONOUR: All right. 17. ACCUSED: Thank you. 18. MR BARKER: Thank you, Your Honour.

[1] R v Verdins [2007] VSCA 62.

[4] Akoka v The Queen [2017] VSCA 214.

[5] Eg R v Bullard [2020] VCC 243; R v Sutherland [2021] VCC 2020; DPP v Rule [2021] VCC 234; DPP v Meldrum [2021] VCC 1734

[6] Boulton v The Queen [2014] VSCA 342; 141.