IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
 Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00323

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
GUNER DOGAN		

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JUDGE:	HIS HONOUR JUDGE M. BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	11 October 2021	
CASE MAY BE CITED AS:	DPP v Dogan	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1533	

REASONS FOR SENTENCE
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms S. Thomas		
			
For the Accused	Ms H. Anderson		

HIS HONOUR:  
1	Guner Dogan, you are to be sentenced on the first indictment or what might be called the first indictment, J11131722, for one charge of theft and four charges of reckless conduct endangering life; on a second indictment, J11131722.1, for three charges of possessing a drug of dependence  Applicable maximum sentences are 10 years' imprisonment for theft and the reckless conduct offences, and 12 months' imprisonment for possession of a drug of dependence.  You are also to be sentenced for the summary offences of dangerous driving, possession of a prohibited weapon, both of which attract a maximum sentence of two years' imprisonment, and possession of ammunition without a licence - maximum penalty a fine of 40 penalty units. 
2	These offences were committed in March to May 2018.  You were arrested in early May 2018 and made a largely no comment record of interview.  There was a contested committal on the first indictment charges in February 2019.  Those charges were then listed for trial in this court, after delay caused by the COVID‑19 pandemic.  That came before me on 11 March 2021.  The jury returned verdicts of guilty on 19 March.  You had pleaded guilty to the second indictment on 18 March.  It should be said that those charges were never contested.  At trial on the first indictment, the charge of theft was not really challenged.  
3	You receive the benefit of your pleas of guilty and a level of cooperation in the proceedings.  
4	The plea hearing was also delayed for a number of months and ran on 13 September.  Ms Thomas for the Crown provided a prosecution outline and chronology.  Mr Sala, for you, tendered the forensic psychological report of Dr Aaron Cunningham dated 25 June 2021 and your father's letter to the court.  He, Mr Sala, provided written plea submissions.  
5	The first indictment offences are markedly the most serious.  In the early hours of 17 March 2018, driving a Volkswagen Golf, you began to follow a Lexus sedan driven by Brooke Holmes.  Her partner, Arian Memedovski, was the passenger.  You knew Memedovski although not closely through the Albanian community.  Your families lived close by.  
6	Beyond that, your chase and attack upon the occupants of the Lexus is not explained.  It began in the Dandenong area and moved onto the Princes Highway.  At one point, Memedovski observed others in your car.  On the Princes Highway, you moved alongside and attempted to ram the other car.  This is the summary offence - dangerous driving.  
7	Holmes swerved and sped away.  The chase continued onto the Belgrave-Hallam Road.  As the Lexus approached traffic lights, you shot at it, shattering the rear windscreen  (Charge 2 and 3 on the first indictment, reckless conduct endangering life).  Terrified, Holmes and Memedovski continued to try and escape.  The chase at this point moved through parts of Endeavour Hills and then onto the Monash Freeway, toward Berwick. 
8	You moved close to the side of the Lexus and shot toward it and Memedovski through your driver's window.  Memedovski and Holmes heard a number of shots.  Another driver following behind heard and saw the flash of one gunshot.  The second shooting makes out Charge 6,  related to Memedovski, and Charge 7,  to Holmes.  It also caused bullet damage to the Lexus.  Holmes swerved and,  although followed,  lost sight of you and exited the freeway.  They stopped in a residential street of Narre Warren, shocked and frightened.  They were too frightened to report what had happened to police.  Memedovski had to a lesser extent recognised you.  
9	No victim impact statements have been tendered but the victim impact is very clear.  You offer no explanation for what you did to them.  
10	The Golf had been stolen at Lynbrook in late February.  On the night of the shooting, it was carrying false registration plates.  The charge of theft against you is made out by your possession of the stolen vehicle.  When you were arrested, on 1 May, the Golf was searched revealing a number of false registration plates, firearm ammunition and an extendable baton.  Police also found relatively small quantities of cannabis, in the car and at your home, and of methylamphetamine on your person.  In a drawer under the driver's seat, they found 60 pills of ecstasy.
11	You are a 33-year-old man awaiting this sentence in remand custody.  You are born and raised in the Dandenong area in a family of Albanian descent.  You are the youngest of three.  Your parents remain supportive of you.  As stated, a letter by your father has been tendered.  Schooling was not successful, affected by your limited academic ability and bullying of you.  You left at 14 and have been employed since, although not consistently, mainly in farm and factory work.  
12	You are in a long-term relationship and have four children.  The relationship has been affected by your drug use.  As to that, you began using cannabis at 15 and then methylamphetamine from 17.  You were using methylamphetamine, benzodiazepines and cannabis at the time of this offending.  I am told that you are drug free in prison. 
13	The psychological report of Dr Cunningham describes symptoms of depression and anxiety.  There is a reference to earlier paranoid thinking which was not present when he saw you in late June.  In his 25 June 2021 report, Dr Cunningham states an opinion of intellectual disability, supported by what seems limited psychometric testing.  There was further examination of this, at one point the plea hearing being adjourned to enable it.  Mr Sala ultimately did not submit that you are intellectually disabled or that the relevant principles stated in Verdins apply because of that.  You can be seen as a person of limited intelligence.  
14	Mr Sala's written submissions state a serious motorcycle accident when you were about 18 of which you have poor recollection; and you have reported difficulties in memory to Dr Cunningham.  There is no evidence before me supporting that you suffer brain injury impairment. 
15	You have a relevant criminal history.  There are nine court appearances between January 2008, when you were aged 19, and February 2017.  Eight are in the period 2008 to 2013.  You have been sentenced to imprisonment on a number of occasions.  There are offences of dishonesty, drug-related and of some violence.  There are weapon and firearm offences.  On 28 February 2017, you were sentenced for offences including conduct endangering serious injury and assault with a weapon.  On 24 January 2020, you were sentenced in the Magistrates' Court for what is in large part subsequent offending.  That sentence was for a large number of offences including burglary, theft, handling stolen goods and at least one firearm offence.  The total effective sentence was two years and nine months with a minimum term of 20 months. 
16	The first indictment is a very serious example of this kind of offending.  Beyond presumption of a grievance against Memedovski, there is no explanation for it.  It was a prolonged, persistent and terrifying chase.  You shot at the car and occupants on two separate occasions.  It was extraordinarily dangerous behaviour; for example, involving vehicles moving at speed dangerous to your victims and also to others.  It was intentionally anti-social. 
17	You have relevant prior convictions.  Drug abuse is no mitigation.  This is a case which makes important sentencing considerations of high moral culpability, deterrence  (that is both general and specific deterrence), the need to condemn and to proportionately punish.  Community protection is a relevant sentencing purpose, both in the sense of the need to deter others but also in respect of yourself.  The stark fact is that you present as a man who was capable of recklessly dangerous and violent offending, one with a relevant criminal history and without any real explanation for what you did.  There must be a prison sentence of substantial length.  
18	I take into account relevant moderating factors.  They include your plea of guilty on some of the offences before me, albeit not those most serious, and the difficulties of your personal history and circumstances.  For example, I have found a limited intellectual ability.  
19	You have family support which will continue upon release from prison.  You have prospects for employment.  However, despite what your father states in his tendered letter on your behalf, it is difficult to find persuasive evidence of your remorse and presently genuine prospects for rehabilitation. It can be said that at 29, you were still relatively young at the time of offending.  I should not utterly discount chances for your rehabilitation.
20	I must apply the principle of totality in a number of ways.  Mr Sala made the point that you have now been in custody since December 2018.  After arrest and remand of about four months for these offences, you received bail.  That was on 12 September 2018.  You were arrested and remanded, it seems for the other offending I have earlier referred to and for which you were sentenced on 24 January 2020.  On that sentence, 537 days were declared under s18 of the Sentencing Act which included the four-month remand period after arrest for these matters before me.  Accordingly, my declaration of pre-sentence detention will only be for the period since expiry of the January 2020 sentence.  That was on 27 January 2021.  Notably, you were denied parole on that sentence,  principally because of these  matters pending.  You served the whole of that head sentence.  I must factor this into my total sentence and,  in doing so, sentence you in a way to reflect the totality of the offending which led to the January 2020 sentence and to my sentence.  This requires that I impose more moderate individual sentences on the main offences before me and on what I see as the lesser offending of the second indictment and summary charges. 
21	Totality in addition must be reflected in orders for only partial cumulation but also whole concurrency on a number of offences across the range of those before me.  On the first indictment, I have decided that I should direct some cumulation reflecting the fact of two separate shootings and also the fact of two victims, balancing this against the aim of a just total sentence, one which also does not seek to crush your hopes for rehabilitation and your future. 
22	Logical precision in orders for cumulation consistent with the principle of totality is not possible in this case.  
23	My total sentence should reflect the necessary moderation.  I bear in mind the need not to respond just in outrage at the wanton violence of shootings towards utterly innocent people.  My sentence should, for example, have appropriate reference to the maximum sentences applicable, particularly for reckless conduct endangering life.  That is a sentence of 10 years. 
24	After considering and weighing what I see to bet he relevant matters, I sentence you as follows: 
25	On the first indictment, J11131722, on Charge 1, to six months' imprisonment.  
26	On Charge 2, reckless conduct endangering life in respect of Erian Minodovski, to four and a half years' imprisonment. 
27	On Charge 3, reckless conduct endangering life in respect of Brooke Holmes, four and a half years' imprisonment. 
28	On Charge 6, reckless conduct endangering life in respect of Minodovski, to four and a half years' imprisonment. 
29	On Charge 7, reckless conduct endangering life in respect of Holmes, to four and a half years' imprisonment. 
30	On the second indictment, J11131722.1, on Charges 1 and 3, two months' imprisonment.  
31	On Charge 2, one month's imprisonment.
32	On the summary offence of dangerous driving, to four months' imprisonment.  On the summary offence of possessing a prohibited weapon, one months' imprisonment.  On the summary offence of possessing ammunition without a licence, I convict and fine you $100.
33	I direct that eight months of the sentences for Charge 2, 3 and 7 be served cumulatively on the sentence for Charge 6 and on each other.  That is a total effective sentence of six and a half years.  I set a minimum term for eligibility for parole of four and a half years.  
34	I declare under s18 258 days of pre-sentence detention.  
35	Are there other orders that I need to make, Ms Thomas? 
36	MS THOMAS:  Your Honour, there is a licence cancellation required with respect to (indistinct) and I do have a note here about disposal and forfeiture orders.  But I must apologise, I cannot recall whether orders were provided to Your Honour at the time of the plea. 
37	HIS HONOUR:  No, no. 
38	MS THOMAS:  There is a number of items that ‑ ‑ ‑ 
39	HIS HONOUR:  They would not have been.  I usually resist that.  I notice on the screen there are some disposal orders.  They will come to me in a moment or two.  
40	MS THOMAS:  Yes. 
41	HIS HONOUR:  The is cancellation of licence and disqualification - is there a set minimum term?
42	MS THOMAS:  Yes.  Not less than six months, Your Honour.
43	HIS HONOUR:  These cancellation orders are difficult and can seem often almost notional.  But he has still got almost four years to serve.
44	MS THOMAS:  And I think that may have to be under the Road Safety Act, Your Honour, but the period would be, if it's effective now, it would be well and truly finished by the time Mr Dogan was released.  
45	HIS HONOUR:  Yes, and I will impose - I mean, if you were going to, if you were going to impose a disqualification period focusing on what happened on the night, it would be of many years.  But in the range of things, again I suppose it's a matter of what is just totality.  I am going to impose a sentence of - a period of two years which will mean it will be served and he will have an opportunity of applying for a licence presumably with a capacity to rehabilitate himself from the sort of driving that occurred on this night and the sort of behaviour that occurred on this night.  So that is what I will do.  Two years, is it not?
46	MS THOMAS:  Yes. 
47	HIS HONOUR:  Yes, all right.  
48	MS THOMAS:  And the forfeiture and disposal orders relate to the items (indistinct) and the house, Your Honour. 
49	HIS HONOUR:  I have got a disposal order but it doesn't really tell me what it is for.  Just hold on. 
50	MS THOMAS:  Could be the schedule, Your Honour. 
51	HIS HONOUR:  Yes, it is a schedule.  For some reason there is a page in between.  And there is a forfeiture order.  The forfeiture order is in relation to ammunition.  And the disposal order is in relation to drugs.  There would be no objection, Ms Anderson?
52	MS ANDERSON:  No, Your Honour.   
53	HIS HONOUR:  Good, thank you.  I will sign those orders.  All right.  Now, I do not see any point in attempting a s6AAA indication in this case.  So if I am - even if I am obliged to do it, I decline the offer.  All right.  Well, is there anything else I need to say or do?
54	MS THOMAS:  No.  No, Your Honour.   
55	MS ANDERSON:  No, Your Honour. 
56	HIS HONOUR:  Good, thank you for your assistance throughout and this morning or today.  Good, I will turn everybody off now. 
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