IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-21–02193

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MEHMED GUNDUZ		

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JUDGE:	HER HONOUR JUDGE CHAMBERS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 August & 6 September 2023	
DATE OF SENTENCE:	6 September 2023	
CASE MAY BE CITED AS:	DPP v Gunduz	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1615		

REASONS FOR SENTENCE
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Subject:	Criminal law - Sentence
Catchwords: 	Guilty plea – charge of procuring a sexual act by fraud – offender removed condom during sexual intercourse without the knowledge or consent of the complainant – no prior criminal history – delay – general deterrence, denunciation paramount sentencing considerations – excellent prospects of rehabilitation
Legislation Cited:	Crimes Act 1958 (Vic); Sentencing Act 1991(Vic)	
Cases Cited:	Director of Public Prosecutions v Tan Yeong [2022] VSCA 179
Sentence:	Two year community correction order, with conviction

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr J. Johnston	Office of Public Prosecutions	
		Victoria	
For the Accused	Mr P. Kounnas	RA Criminal Lawyers	

HER HONOUR:

1	Mehmed Gunduz, following a sentence indication given by me, you have pleaded guilty to one charge of procuring a sexual act by fraud contrary to s45(1) of the Crimes Act 1958, the maximum penalty for which is five years’ imprisonment.
2	At the time of the offending you were 25 years old.  You have no prior or subsequent criminal history.
3	The circumstances of your offending are detailed in the Summary of Prosecution Opening dated 16 August 2023, as amended at the plea hearing, which represents the agreed basis upon which you are to be sentenced.
4	On Friday 5 March 2021, you met the victim through an online dating platform.  After exchanging messages, the two of you agreed to meet the following day.
5	On Saturday 6 March 2021, the victim sent you a message after she had been out for dinner with a friend.  She messaged you again at 10.42 pm and you told her you had finished work.  She said she was having drinks with friends. 
6	At 11.40 pm you sent the victim another message, and the two of you agreed to meet later that night.  At 12.05 am on Sunday 7 March 2021, you invited the victim to meet you at your place.  
7	You met the victim outside your Docklands apartment at 1.31 am, where you greeted her with a hug, before accompanying her into your apartment.  After she declined a further alcoholic drink, the two of you went into your bedroom. 
8	After some conversation, the victim sat on the end of your bed, where you joined her.  You spoke further for a short time, before you gently pulled her down so she was lying on her back.  You then kissed.  After a while, the victim pulled back because things were moving too quickly for her.  You stopped and she went to go to the toilet.
9	When the victim returned, you asked if she was all right and continued talking.  During a lull in the conversation, you asked her, 'So… do you wanna sit on my face?'  The victim was not sure how to respond to this.
10	The two of you again kissed as you lay on the bed.  The victim rubbed your penis over your clothing.  You then removed your clothes and assisted the victim to remove hers.  You engaged in consensual sexual activity.  You told the victim you wanted to have sexual intercourse, stating 'Do you want me to use a condom?'  The victim responded, 'Yeah'. 
11	After placing a condom on your penis, you engaged in consensual sexual intercourse with the victim.  At one point, she asked you to slow down, which you did for a while.  The victim saw that you were still wearing the condom.
12	You then stood up and asked if you could penetrate the victim’s vagina from behind.  The victim faced the wall, standing over the side of your bed.  She could not see you from this position.  At some point, you removed the condom without the victim’s knowledge or agreement and continued to have sexual intercourse You removed your penis and ejaculated on the complainant’s lower back. The victim then realised you had removed the condom.
13	The victim was shocked by what had occurred but felt uncomfortable to discuss it with you immediately. 
14	The victim left your apartment at 3.17 am.  In a taxi on the way home, the victim blocked you on Facebook.  At 3.32 am she received a message from you on the dating app, telling her to get home safely.  The victim responded by asking you at what stage you had removed the condom.  You replied that you did so, 'Like 10 seconds before I finished…I wouldn’t have finished'.  The victim said she felt 'messed up because I didn’t know and you didn’t ask', to which you replied, 'I got a little bit caught up in it.  My bad'.  You apologised three times during the course of that conversation.
15	In a further online conversation the next day, the victim told you she found your conduct disrespectful, to which you replied, 'I partly thought you’d not care. I’m sorry I did it'.  The victim said, ‘I don’t know how me saying yeah, use a condom translates to "nah, forget about it you can take it off".'  You replied, 'You’re right.  I fkd up'.
16	After telling friends what occurred and having tests to screen for sexually transmitted diseases, the victim reported the matter to police on 19 March 2021.
17	The victim agreed to make a recorded ‘pretext call’ to you on 24 March 2021.  In that conversation, you told the victim, 'I thought you’d be cool with it. And I know that it was a dumb thing, but I dunno, I just got caught up in the moment'.  You again admitted that you continued having intercourse for 10 seconds after removing the condom.  You apologised for your conduct once more.
18	You were arrested on 25 March 2021.
Procedural history	
19	I turn to the procedural history of this matter.
20	On 25 March 2021 you were charged with the offence of rape arising from these events.  A committal hearing was conducted on 13 October 2021 and the case was listed for trial in August 2022.  The trial date was vacated to await the outcome of a Court of Appeal decision that could have bearing on your matter. 
21	On 24 March 2023, the matter was listed before me for a case conference followed by which, by agreement of both parties, a sentence indication hearing was conducted on 19 April 2023 on a charge of procuring a sexual act by fraud.  Upon acceptance of the sentence indication, the prosecution filed a fresh indictment and you entered a plea to the charge of procuring a sexual act by fraud on 16 August 2023.  I return to the relevance of this delay later in my reasons for sentence.
Nature and gravity of the offending 
22	The objective gravity of your offending relates to your deceptive conduct in removing the condom without the victim’s knowledge or consent, after you had expressly agreed to use one prior to engaging in sexual intercourse with her. 
23	It was in the context of your earlier agreement to use a condom, that the victim consented to the sexual penetration.  Then, having requested the victim turn so she was faced away from you, you removed the condom without her knowledge.  You deliberately omitted to tell her you had done so, and continued to have sexual intercourse without the condom.  In doing so, you falsely or misleadingly represented you were using a condom, knowing this to be false.  You then ejaculated on the victim’s back.
24	Understandably, the victim was shocked when she realised what you had done, and challenged you about your conduct after leaving your apartment.  You acknowledged that you had removed the condom and apologised for doing so. 
25	There is no basis to conclude you intended to deceive the complainant at the point you agreed to wear a condom.  Until you removed the condom, you had engaged in consensual sexual activity.  I accept that your conduct in removing the condom was spontaneous, unplanned and that the period in which the sexual penetration occurred following your deceptive conduct was relatively brief.
26	The gravity of this offence lies in the deception involved.  Your offending involved a conscious decision to remove the condom, without any consideration of the complainant or her wishes, for your own sexual gratification.  You did so when the  victim was positioned unable to see what you had done.  These factors make this a reasonably serious example of an offence for which Parliament has prescribed a maximum penalty of five years’ imprisonment.  Your moral culpability for the offending could not be characterised as low. 
27	The impact of your offending is borne out in the victim’s victim impact statement which she read aloud at your plea hearing. 
28	In that statement, the victim describes your offending as having ‘forcibly removed her autonomy and consent’, leaving her feeling violated.  She says your offending has left her traumatised, impacting on her self-esteem.  Your crime has undermined her sense of trust in others.  The victim describes the psychological harm caused by your offending, requiring ongoing treatment.  I have read and considered the entirety of her victim impact statement, and have taken the impact of your offending on the victim into account in sentencing you.
Personal circumstances
29	You were born in Australia in January 1996 and are now 27 years old.
30	You are one of three siblings and have a close relationship with your family. 
31	You completed your secondary school education at Sunshine College and have enrolled in a double degree in Psychology and Law at Victoria University in 2022.  Due to the impact of COVID-19, you deferred your studies and have since resumed studying earlier this year.
32	At the age of 18, you moved out of the family home to live with friends, but returned to live at home with your parents and siblings during the pandemic.  You have not told your parents about these criminal proceedings out of a concern for their wellbeing. 
33	You reported to Corrections that the relationship with your last girlfriend ended when you realised that relationships are 'hard work' and continued to meet women via online dating services. 
34	Since leaving school, you have a worked consistently in the hospitality industry, having been employed as a bar manager at Pier 71 in Altona for the past two and a half years, where you work five days a week.  In references that were tendered on your behalf, your employer describes you as professional, competent, and reliable in your role.  In a separate reference, your immediate supervisor describes you as a highly valued employee and a dependable friend.  She also speaks of your distress regarding the impact this matter will have on your future prospects.
35	In other references provided by your cousin and a long-term friend, you are described as hard-working and a supportive and protective friend.  Your family, friends and work colleagues describe this offending as out of character when compared to the person they know.
Matters in mitigation of sentence
36	Having assessed the objective gravity of your offending, I now turn to discuss the matters raised in mitigation of your sentence.
37	First and foremost, you have pleaded guilty to the charge.  Through your guilty plea, you acknowledge responsibility for your offending. Your plea is also an expression of remorse.  It is also noteworthy that you repeatedly apologised to the victim for your conduct in removing the condom before being charged.  Your plea saves the court and the community the time and cost associated with a trial.  It also spares the victim the distress often associated with giving evidence in court. 
38	Secondly, until this matter resolved following a case conference and sentence indication hearing, you had a very serious charge hanging over your head.  The delay in these proceedings is also relevant in mitigation of sentence.  The offence was committed in March 2021, more than two years ago.  In one of the references provided by your supervisor, Ms Asher, she states these charges have caused you stress and that she has observed you become more socially withdrawn.
39	You have not offended since this time, and have no matters pending. 
40	Thirdly, you are to be sentenced as a person of otherwise good character, as attested to by the reference material to which I have referred.  Given this, I assess you have good prospects of rehabilitation.
41	Specific deterrence, whilst relevant for offending of this kind, is given less weight given your lack of prior criminal history combined with the evidence of your general good character and work ethic. 
42	This matter came before the court as a sentence indication hearing to the charge on which you are now to be sentenced.  During that hearing the prosecution submitted that if a plea of guilty were entered to that charge, a community correction order would not be outside the range of sentences available having regard to the circumstances.  Counsel appearing on your behalf also submitted that a community correction order would be an appropriate sentencing disposition.  I indicated that if you entered a plea to that charge, I would not sentence you to an immediate term of imprisonment but would have you assessed for a community correction order. 
43	You have since been assessed by Corrections and found suitable for such an order with conditions to be attached.  However, the assessor raised reservations about your level of remorse or insight into the impact of your offending on the victim.  For that reason I agree with the recommendation that you engage in offence specific programs as a condition of the order.
Relevant sentencing considerations
44	In cases such as these, the most significant sentencing considerations are those of general deterrence and denunciation.  Others must be deterred from engaging in deceptive conduct involved in sexual activity of this nature.
45	On your behalf, it is submitted that no conviction should be recorded given the potential impact of a conviction on your future career prospects.  You have a history of employment and, as indicated, you have commenced, but not completed, a law degree. 
46	On the question of whether or not to record a conviction, s8(1) of the Sentencing Act provides as follows:
'In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
a)	the nature of the offence; and
b)	the character and past history of the offender; and
c) 	the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.'
47	On your behalf, the defence called Mr Max Perry of Counsel, who gave evidence of his extensive experience representing candidates for admission before the Victorian Legal Admissions Board and its predecessor.
48	In his evidence, Mr Perry states that for the Board to consider whether a candidate is a fit and proper person for admission, the candidate must disclose any prior findings of guilt, irrespective of whether a conviction is recorded.  In performing its role, Mr Perry states the Board will consider all the circumstances of the offending as detailed in the prosecution opening, witness statements, any victim impact statement, and the sentencing remarks of the Court.  Mr Perry’s evidence is that the recording of a conviction or non-conviction is a matter of significance for the Board’s consideration, although it is not determinative. 
49	In balancing these considerations, I note that you are a person of prior good character with no prior convictions or findings of guilt. 
50	Based on Mr Perry’s evidence, I accept that a conviction for this offence will be relevant to any application you make for admission as a lawyer, and therefore has the potential to impact on your future employment prospects in the law.  A finding of guilt or conviction alone is not an absolute bar to admission as a lawyer, however I accept that the fact of a conviction or otherwise will be a matter of some weight in the Board's consideration. 
51	Against these factors, this was a sexual offence the gravity of which involves a deliberate act of deception.  It is an indictable offence that carries a maximum penalty of five years' imprisonment.  There is no evidence you suffer from a mental impairment or other condition that would operate to moderate the need for general deterrence or reduces your moral culpability for this offending. 
52	Further, at the age of 25 at the time of this offending, you were not a young or youthful offender such that you may not have appreciated the wrongfulness of your conduct.  The impact of your offending on the victim has been significant.  It is not a case where your offending is at the lowest end of gravity for offending of this kind, or that your moral culpability is low. 
53	For these reasons, on the charge of procuring sexual activity by fraud, you are convicted.  
54	Mr Gunduz, you are sentenced to a two year community correction order, with conviction, subject to the following conditions:
a)	you are required to complete 150 hours of unpaid community work over the two year period;
b)	you are required to undertake treatment and rehabilitation programs to reduce the risk of reoffending and you will be subject to supervision.
55	You have agreed to such an order being made.
56	Pursuant to s48CA of the Sentencing Act 1991, in order to preference the rehabilitation component of this order, I direct that all of the hours that you satisfactorily complete of any program to reduce the risk of reoffending under the treatment condition are to be credited as hours of unpaid community work.
57	Pursuant to s6AAA of the Sentencing Act 1991, if not for your guilty plea, I would otherwise have sentenced you to a term of imprisonment in combination with a community correction order.
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