IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
criminal DIVISION

Case No. CR-20-01662

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
BARISH SENGUL		

JUDGE:	HIS HONOUR JUDGE GAMBLE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	25 January and 21 March 2022	
DATE OF SENTENCE:	17 May 2022	
CASE MAY BE CITED AS:	DPP v Sengul	
MEDIUM NEUTRAL CITATION:	[2022] VCC 696		

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW – Sentence 	
Catchwords: 	
Legislation Cited: 	
Cases Cited: 	
Sentence: 	
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr T. Crouch	Office of Public Prosecutions	
			
For the Accused	Mr M. Gumbleton	Sarah Tricarico Lawyers

	

HIS HONOUR:
1	Barish Sengul, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence (1,4 butanediol), two charges of possession of a drug of dependence (methylamphetamine and MDMA) and one charge of handling stolen goods (a Medicare card and a credit card).  The maximum penalty for each of trafficking and handling stolen goods is 15 years’ imprisonment.  As I am satisfied on balance that each of the possession charges were not committed for any purpose related to trafficking, the lesser maximum penalty applies to each such offence, namely one year imprisonment or a fine of 30 penalty units.
2	I note that this matter resolved following a case conference held on 
28 September 2021 in circumstances where the prosecution ultimately elected not to persist with a prosecution on a more serious charge of trafficking in a drug of dependence in not less than a commercial quantity.  Mr Sengul was first arraigned on and pleaded guilty to the current plea indictment before a judicial registrar on 25 October 2021.  In those circumstances I consider his pleas to have been entered at an early stage in these proceedings.
3	Mr Sengul, I note that you were 28 at the time you committed these offences.  You are now 31, having been born in January 1991.
4	The circumstances in which you committed these offences on 11 July 2019 are set out in the detailed typed prosecution opening dated 25 October 2021, which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes.  I also note that the basis on which you fall to be sentenced was also the subject of discussion between counsel and myself during the course of the plea hearing.  It is sufficient, for present purposes, to provide the following outline of the offending.
5	At the relevant time you were living at the home of your parents in Eltham.  For some months leading up to July 2019 your parents had been overseas.  You came to the notice of police who were trying to locate two men suspected of committing property-related offences.  The police received intelligence suggesting that those men, Eldridge and Chilcott, may have been residing with you.  On 11 July 2019 police in an unmarked police vehicle patrolling in the vicinity of your address noticed Mr Eldridge driving a Nissan Navara which appeared to have a false registration plate.  He was with Mr Chilcott who was seated in the front passenger seat.  Police covertly followed that vehicle and ultimately arrested Mr Chilcott after he had exited it a short time later.  Their attempt to do likewise with Mr Eldridge was unsuccessful. 
6	Other police who were patrolling in a different police vehicle in that area, came upon Mr Eldridge while he was seated in the rear of a Hyundai Veloster being driven by your girlfriend and in which you were a front seat passenger.  Police then arrested both you and Mr Eldridge. 
7	Later that day other police conducted a search of the Eltham property at which police believed that you and the other two men had been living.  After removing a large ducted heating intake vent in the laundry police located three petrol containers and a bag containing various bottles of liquid suspected to contain drugs of dependence. 
8	You assisted police with part of their search by directing them to the respective bedrooms being used by yourself and the other men.  You also volunteered to police that there was some 'Ice' in the bedroom that you had been using.  During a search of your bedroom police located the following items:
•	A clip seal bag containing a crystal substance;
•	Two clear bottles containing a liquid substance;
•	A large bottle containing a frozen substance;
•	A clip seal bag containing seven pills;
•	A Medicare card in the name of Omar Taleb; and
•	A Westpac credit card in the name of Leigh Tromp.
9	In a later police interview you admitted to residing at the Eltham address but otherwise exercised your legal right to decline to answer any police questions. 
10	The substances seized by police during the search were later analysed. 
11	The three petrol containers and the 10 plastic bottles located in the laundry heating vent each contained the drug 1,4 butanediol.  The total amount detected was 18,969.4 grams or just under 19 kilograms.  Charge 2 on the indictment alleges an offence of trafficking simpliciter in respect of this drug on the basis that you were in possession for the purpose of future sale of that drug, but the prosecution acknowledge that it cannot be proven to the criminal standard that you had knowledge or any belief as to there being a significant risk that the quantity of the drug equalled or exceeded the threshold amount for a commercial quantity, namely two kilograms.  Hence, although the amount of the drug found exceeded the threshold amount for a commercial quantity, you are not to be dealt with on the basis that you trafficked a commercial quantity since you lacked the necessary mens rea for that more serious offence.  At the plea the parties accepted that this represented a serious example of trafficking simpliciter since the mens rea that you did have must have related to a quantity close to if not at the very upper reaches of the range for a quantity that fits within the lesser offence of trafficking simpliciter.
12	Later forensic examination of swabs taken from the three petrol containers and DNA comparison with your reference sample provided very strong support for the proposition that you contributed to the mixed DNA profile found on each container.  In respect of the first container, Chilcott and Eldridge were excluded as being contributors to that mixed DNA profile, whilst for the other two containers the DNA evidence was considered more likely if they were not contributors.
13	The crystal substance located on your bed was identified as methylamphetamine and weighed 0.3 of a gram.  This is the subject of the possession offence alleged in Charge 1 on the indictment.
14	The pills located in your bedroom were found to contain MDMA and have a combined weight of 2.5 grams.  This is the subject of the possession offence alleged in Charge 3 on the indictment.
15	The offence of handling stolen goods alleged in Charge 4 is based on your possession of the two cards police found in your bedroom.  The Medicare card belonging to Mr Taleb had been stolen from his vehicle some time on the morning of 10 June 2019.  The credit card belonging to Mr Tromp was contained in his wallet and stolen, along with his vehicle, on the afternoon of 11 February 2019.  It is not put by the prosecution that you were the person who took those items from their owners' car but, rather, that you came into possession of them later.  I note that the date of each offence corresponds to the date on which police located them in your possession.  Your counsel informed the court that you had come into possession of those two cards after being given them by the other two men with whom you were residing.
16	As already noted, you were formally interviewed on the same date you were arrested, namely 11 July 2019.
17	Following interview you were charged and then remanded in custody.
18	You were ultimately granted bail and released from custody on 9 December 2019.  You have been on bail ever since.  Accordingly, the period you have served by way of pre-sentence detention in this matter to date is 151 days, not including today’s date.
19	As revealed by the contents of the prior criminal record filed with this court, you have an extensive and very relevant prior criminal history, Mr Sengul.
20	As the result of 13 court appearances over a nine-year period between 
13 May 2010 and 2 May 2019 you have been sentenced in respect of some 83 or so offences.  Given the nature of your current offending, the fact that you have previously been sentenced for six offences of trafficking, including one of doing so in relation to a commercial quantity, 32 offences of possession of a drug of dependence and one of handling stolen goods is particularly significant.  You have been sentenced for various other offences, including but not limited to other dishonesty related offences and using a drug of dependence.
21	You have received a variety of previous sentences, including fines, a community based order, a six-month intensive correction order, an 18-month community correction order, a one-month wholly suspended sentence, a 28-day sentence of imprisonment, an eight-month aggregate sentence of imprisonment combined with a 15-month community correction order, and two short aggregate sentences (one of 49 days’ imprisonment imposed on 18 February 2019 and one of 30 days’ imprisonment imposed on 2 May 2019). 
22	Furthermore, your history whilst on court supervised orders in the community is unimpressive.  In 2011 you were dealt with for breach of a community based order.  In 2018 you were found guilty of having breached a community correction order.  And then on 18 February 2019 you faced further breach proceedings, this time in relation to the 15-month community correction order that had been imposed in combination with an eight-month term of imprisonment on 4 May 2018.  For the breach offence you were convicted and fined.  At the breach proceedings the breach was found proven and, again, you were made subject to a 15-month community correction order. 
23	It is of significance that at the time that you committed the current offences you were still subject to that community correction order and had only recently finished serving a 30-day term of imprisonment. 
24	I now turn to outline your personal circumstances, Mr Sengul.
25	As I have already noted, you turned 31 years of age in January of this year.  In his written submissions your counsel concentrated on your personal background in more recent years.  As he notes, you come from a supportive family and your primary and secondary education progressed without issue.  You completed a carpentry apprenticeship after leaving school.  After completing your education you also commenced using drugs and struggled with addiction.  To some extent this is reflected in your prior criminal history which spans the period during which you were aged 19 to 28.
26	You met your current partner, Natalie Pace, shortly before you were arrested for the current offending.  The two of you have since become engaged and had a child together, a daughter named Savannah who was born on 29 March this year.
27	It is now approaching three years since your arrest.  During that time you have made concerted efforts to turn your life around.  In particular you have ceased using drugs and have voluntarily subjected yourself to drug testing and drug counselling.  Over that same period you have not been charged with any further offending save for two charges of possession of a drug of dependence, namely, suboxone and a weight loss drug named clenbuterol, respectively.  That offending is alleged to have occurred on 6 August 2021.  A further mention of those charges is currently listed for 2 June 2022.  I have had no regard to the allegations the subject of those charges and merely mention them for the sake of completeness.  You are also well advanced in your attempts to complete a second apprenticeship in the field of plumbing.  You have been undertaking that task while also working as a carpenter.
28	Your counsel, Mr Gumbleton, in a thorough plea on your behalf, was able to rely on the following matters in mitigation, Mr Sengul.
29	You provided some assistance to police during their search of the Eltham property at which the various drugs and stolen cards were located and, when interviewed, you admitted to the fact that you had been living at that address. 
30	You opted to plead guilty to the current charges notwithstanding that you had been provided with legal advice to the effect that there was a basis on which to challenge the legality of the police search undertaken at the Eltham address.  To the extent that there was a contested committal hearing it was focused on the legality or otherwise of that search.  Whilst there were no doubt also very sensible pragmatic reasons for this case ultimately resolving as it did, I am prepared to find that your plea was entered at an early stage in these proceedings and that you are remorseful.  If the relevant evidence were restricted to the mere fact of the plea I may not have been as confident about your remorse.  However, the steps that you have taken with respect to improving your prospects of rehabilitation since being released on bail, together with the observations of the authors of various letters and testimonials tendered during the plea, provide a much stronger basis for making a positive finding in respect of remorse.  
31	By your pleas you have also demonstrated a preparedness to facilitate the course of justice.  Such a course is deserving of an even greater sentencing discount, where, as here, it has occurred during the COVID-19 pandemic when the court is facing a significant trial backlog and intense listing pressures.  The utilitarian value of a plea entered in those circumstances is, as the Court of Appeal has clearly stated, greater. 
32	The court must also recognise the more onerous conditions in which you will have to spend any further time in custody.  On reception into custody you will have to undergo a period of isolation and then likely face periods of lockdown and a compromised ability to have contact visits, access to programs and work opportunities, due to the restrictions Corrections have had to put in place and, to varying degrees, maintain or re-implement, in order to deal with the COVID-19 pandemic.  Given the problems which this state and New South Wales have been having in more recent times trying to deal with outbreaks of the virus in gaols, I am prepared to accept that you, like many prisoners, will be concerned about contracting the virus while in custody, an environment in which you have only a very limited ability to control your own movements and living conditions. 
33	As already noted, there has been a delay of nearly three years between the date on which you were charged with committing these offences and the date on which you will be sentenced.  That is a significant period, no doubt explained in part by the fact that the prosecution only recently abandoned the more serious charge of trafficking in a commercial quantity and the problems that this court has had in trying to conduct trials during the currency of the COVID-19 pandemic.  Whatever be the reasons for this delay, it cannot be said that you were in any way to blame.  I accept, therefore, that such delay has twin significance.  First, it has meant that you have had this matter and your ultimate fate hanging over your head for a considerable period with all of the uncertainty and anxiety that could be expected to flow from such a delay.  Second, the fact that you have seized the opportunity to reform during that period means that you have more positive prospects of rehabilitation than if you had been sentenced much closer in time to when you committed these offences. 
34	Since your release on bail you have made concerted efforts to address your drug addiction through counselling and treatment.  You have also sought to engage in a more meaningful and productive lifestyle via a committed relationship and by pursuing gainful employment and expanding your trade skills.
35	The letter from your fiancé dated 10 November 2021 attests to the efforts that you have made in that regard and, in particular, the commitment that you have shown to her and to being a good provider for your family.  Understandably, she is concerned about the deleterious impact that a period of further imprisonment may have on you and on the progress that you have made.
36	Other written references from your older brother and three close friends speak uniformly about the commitment that you have shown in recent years to moving away from your past negative lifestyle.  Each of them have been impressed by the positive turn around that you have achieved.  To them you appear to be a loving partner and committed family man who simply wants to do the best for his family.
37	The letter from Ms Kirchner, a clinical counsellor at Dahab, confirms the fact that you entered that organisation’s 90-day intense addiction treatment program on 
9 December 2019 as a full-time inpatient client.  In her view you responded well to treatment and made significant gains towards achieving recovery.  You gained insight into your drug addiction and behaviour and accepted responsibility for your past actions.  After successfully completing all aspects of the program you exited on 10 March 2020.  Thereafter, you committed to their aftercare program and also engaged with Narcotics Anonymous on a regular basis.  The author has noticed a marked improvement in your physical and mental health over that period and she believes that you are committed and focused in your attempt to overcome your substance abuse issues.  She is confident that you have the necessary desire, commitment and tenacity to achieve long term success in that aim. 
38	A letter from your GP, Dr Merhi, dated 1 April 2021, notes the efforts that you had made to that point in time with respect to turning your life around through engaging in drug rehabilitation, employment and a committed relationship.  He has noticed that you have matured and developed a degree of insight. 
39	A letter from a forensic alcohol and other drug specialist named Karly Doyle, dated 18 October 2021, confirms that you were referred to her practice in October 2020.  As at the time of writing that letter she had provided you with counselling support during 12 sessions over a period of 12 months.  In her view you have engaged in that process commendably, demonstrating insight and self-reflection.  To her mind you present as someone who is committed to maintaining abstinence from all substances in the future.  She considers that you have a number of protective factors, including the strong and ongoing support that you continue to enjoy from your parents and fiancé and your stable employment history. 
40	Some level of support for each author’s observations is provided by the negative test results for the urine drug screens that you have voluntarily provided.  
Exhibit 2 shows that there were 21 samples provided in 2020 between 3 June and 19 December, a single sample in 2021 (on 20 February) and two samples in early 2022 (on 4 and 18 February).  
41	A director of your current employer, Westgate Plumbing, notes in a letter dated 
6 May 2022 that you have worked with that business since 20 November 2020 while undergoing a plumber’s apprenticeship.  He raises no concerns about you and considers you to be a punctual and respectful employee.
42	Another important consideration that this court must have regard to is the objective gravity of the offending in which you engaged.
43	The trafficking offence alleged in Charge 2 represents a serious example of an offence that carries the relatively high maximum of 15 years’ imprisonment.  Whilst you are not to be sentenced as if you knew or believed that the amount of that drug equated to or exceeded the threshold amount for a commercial quantity, it is clear that any such knowledge or belief possessed by you must have been one that related to a quantity at the upper reaches of the range applicable to a trafficking simpliciter charge.  That, in itself, is a significant matter to be taken into account when assessing your moral culpability in respect of this offence, albeit that it is also necessary to have regard to the lower financial reward that is achievable for this type of drug compared to many other types.  The fact that you committed this offence while subject to a community correction order imposed for offences that included two of trafficking in a drug of dependence, is a significant aggravating feature of this offence and elevates your level of moral culpability for it. 
44	Whilst I am, in all the circumstances, prepared to find that you were likely in possession of the relatively small amounts of the two drugs the subject of the possession charges for your own personal use, those offences are also to be seen as aggravated by the fact that they were committed by you whilst on a community correction order that was imposed for offending that included four charges of possession of a drug of dependence. 
45	The fact that you have a significant number of prior convictions for both trafficking and possession of a drug of dependence is also relevant to any assessment of your level of moral culpability for the offences the subject of Charges 1, 2 and 3 on this plea indictment.
46	As for the offence of handling stolen goods, I consider it to be neither a serious nor a minor example of this type of offence which, relevantly, carries a relatively significant maximum penalty.  The submission made by your counsel to the effect that you had not used either card for any nefarious purpose is of very limited relevance given that any such use would have likely involved the commission of further offences and led to the laying of additional charges in order to address that additional and discrete level of criminality.
47	Quite clearly, this offending, and in particular that in Charge 2, requires this court to give significant weight to the principles of denunciation and general deterrence.  The community is rightly concerned about the prevalence and destructive nature of drug trafficking and justifiably expects that when a court sentences an offender for this type of offending it will impose a sentence that makes it clear that such serious criminal conduct is totally unacceptable to a civilised society and which provides a suitable measure of discouragement to others in the community that might be contemplating acting in a similar way.
48	There are a number of relevant considerations to be borne in mind when determining the weight to attach to the sentencing principles of specific deterrence and protection of the community.  On the one hand there are a number of factors that point up the need to give emphasis to these sentencing considerations.  Those matters include Mr Sengul’s extensive and very relevant prior criminal history, the fact that he offended so soon after being released from his last sentence of imprisonment and whilst on a community correction order that was structured so as to promote and encourage his rehabilitation by addressing the underlying reasons for his past offending, and the fact that past sentences of imprisonment had proved an insufficient deterrent to further and even more serious offending.  On the other hand such matters are not to be considered in isolation but, rather, must be balanced with any other matters which point in the other direction.  So, the fact that Mr Sengul has not been convicted of any further offences since being charged with these offences, and the impressive steps he has taken during that period to address his serious drug addiction and establish a pro-social lifestyle centred around his partner, infant daughter and stable employment, require this court to temper the weight to be attached to these two sentencing principles.  So, whilst remaining very relevant, they are not to be given the same degree of emphasis that would have been required had Mr Sengul not made the significant positive changes that he has. 
49	This court must also have regard to his age and prospects of rehabilitation.  At age 31 he is still a relatively young man who appears to be maturing and reassessing the destructive nature of his past lifestyle and choices.  In respect to his rehabilitation prospects again there are competing considerations that point in different directions.  Mr Sengul has an unenviable criminal record which is no doubt explained to a significant degree by his serious drug addiction.  Whilst he has made positive recent progress in addressing his substance abuse issues, it would be naïve to think that achieving longer term success was going to be easy, but there are some protective factors currently in place, including a supportive partner and the birth of his first child, as well as full-time and secure employment.  Those matters should act as a strong incentive for him to remain drug and offence free in the future.  In the end, all relevant matters considered, I have concluded that 
Mr Sengul’s prospects are relatively good.  That is a much more favourable assessment than the one I would have reached had Mr Sengul not seized the opportunity in the way that he has since being released on bail.
50	This court must impose a just sentence on Mr Sengul.  In assessing what is just regard must be had to the nature and seriousness of his offending, including any aggravating and mitigating features, as well as his personal circumstances, including the matters in mitigation upon which he can rely.  Individualised justice is what is required.
51	The sentencing principle of parsimony, while always a relevant consideration, is brought into sharp focus when, as here, an offender with a relevant criminal history falls to be sentenced for serious offending in circumstances where he has made positive progress over a significant period between the date of offending and the date of sentence.  Such a consideration is also relevant when determining the appropriate non-parole period. 
52	The totality principle must also be considered given there are multiple offences, all of which were committed on the same date.  The court must therefore be astute to ensure that the ultimate sentence imposed is commensurate with the totality of the criminality in which Mr Sengul engaged, no more and no less. 
53	In his submissions on penalty defence counsel urged the court to sentence 
Mr Sengul in a way that did not require him to return to custody.  In making that submission he placed particular reliance on the delay in this case and on the significant steps towards rehabilitation that Mr Sengul had taken since being released on bail.  In short, it was put that Mr Sengul is now a different person to the man that committed these offences and one who is worth giving a chance by, for example, placing him on a lengthy and appropriately conditioned CCO as part of a combination sentence in which the custodial component did not exceed the period of pre-sentence detention of 151 days.
54	By way of contrast, counsel who appeared on behalf of the Director emphasised the serious nature of this offending and the relevance of Mr Sengul’s criminal history.  Prosecution counsel pointed out the need to emphasise such sentencing factors as deterrence, denunciation and just punishment, and ultimately submitted that nothing short of a sentence comprising a head sentence with a non-parole period was appropriate to deal with the seriousness of this offending.
55	Following those submissions you were assessed by Corrections and found suitable for a community correction order in the event that the court considered it appropriate to place you on such an order. 
56	Having considered each party's submissions and all of the relevant circumstances of this case, I have ultimately come to the firm conclusion that a combination sentence, even one that incorporated a further 12 months in custody, would not represent a just punishment for this offending, and such a sentence would simply fail to give the requisite recognition and weight to a number of important sentencing considerations, including general deterrence and denunciation.
57	In my view this case demands the imposition of a custodial sentence in the form of a head sentence with a non-parole period.
58	That said, however, it must also be noted that the matters in mitigation that are able to be relied on by Mr Sengul are significant and have influenced me to impose a materially lesser sentence than I otherwise would have, including a non-parole period that is somewhat disparate when viewed against the head sentence.  I have taken that course in order to keep any sentence to the minimum that the justice of this case requires and in order to promote and encourage Mr Sengul’s improved prospects of rehabilitation.
59	Accordingly, I will convict Mr Sengul in respect of each charge and sentence him to the following terms of imprisonment.
60	On Charge 1, possession of a drug of dependence, namely methylamphetamine, one month.
61	On Charge 2, trafficking simpliciter in a drug of dependence, namely 1,4 butanediol, three years.
62	On Charge 3, possession of a drug of dependence, namely MDMA, one month.
63	On Charge 4, handling stolen goods, three months.
64	The sentence of three years imposed for Charge 2 will be the base sentence.
65	In all of the circumstances of this case I consider that it is unnecessary to order any degree of cumulation as between the charges and so the total effective sentence will be one of three years’ imprisonment.
66	In respect of that head sentence I fix a non-parole period of 18 months.
67	Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to these offences I would have sentenced Mr Sengul to a total effective sentence of four and a half years’ imprisonment and fixed a non-parole period of three years.
68	Pursuant to s18 of the Sentencing Act 1991, I declare that Mr Sengul has served a total of 151 days’ pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today.  I order that that period is to be reckoned as already served under that sentence and I further order that the declaration and its details be entered in the records of this court.
69	Finally, I make the disposal order in the terms sought by the prosecution pursuant to s78 (1) of the Confiscation Act 1997.  I note that the making of this order was not opposed by the defence.
70	Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons?
71	MR CROUCH:  No, your Honour.  May it please the court.
72	MR GUMBLETON:  No, thank you.
73	HIS HONOUR:  Mr Gumbleton, are there any matters which you consider it appropriate for the court to note in the custody management documentation which will accompany your client into custody?
74	MR GUMBLETON:  No, there's not.  Thank you.
75	HIS HONOUR:  All right.  Do you need a short opportunity to speak to him in the dock or will you be seeing him in the cells immediately?
76	MR GUMBLETON:  I'd appreciate that.
77	HIS HONOUR:  All right.
78	MR GUMBLETON:  Just a moment.  It won't take long.  Thank you.
79	HIS HONOUR:  All right.  I might just stay on the Bench whilst you do that.
80	MR GUMBLETON:  All right.  I'm very grateful.
81	HIS HONOUR:  Thank you.  
82	MR GUMBLETON:  Thank you, Your Honour.  Nothing further.
83	HIS HONOUR:  All right.  Thank you, Mr Gumbleton.  Mr Gumbleton and 
Mr Crouch, I appreciate these were relatively extensive sentencing reasons.  Please be aware that I will have revised those sentencing reasons very shortly after leaving the Bench and a copy of them will be available on request to the parties certainly in the next day or two if needed.
84	MR GUMBLETON:  Thank you.
85	HIS HONOUR:  All right.  Yes.  Adjourn the court sine die at this stage, thank you.
- - -