District Court New South Wales Medium Neutral Citation: R v Irmak [2019] NSWDC 262 Hearing dates: 18 April 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 3 years, 5 months with a non-parole period of 2 years, 6 months: at [34]. Catchwords: CRIME — Public justice offences — Conspiracy to pervert the course of justice SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Deterrence — Specific and general deterrence SENTENCING — Sentencing procedure — Use of statistics Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Glover v R [2015] NSWCCA 293 Krivosic v R [2017] NSWCCA 167 Mrish [2000] NSWCCA 17 R v Giang [2001] NSWCCA 276 R v Marinellis [2001] NSWCCA 328 R v Moore [2012] NSWCCA 3 R v Nguyen (2004) 149 A Crim R 343 R v PFC [2011] NSWCCA 117 R v Zreika [2000] NSWCCA 75 Taylor v R [2007] NSWCCA 99 Veen v The Queen (No 2) (1988) 164 CLR 465 Winter v R [2011] NSWCCA Texts Cited: None Category: Sentence Parties: Regina (Crown) Recep Irmak (Offender) Representation: Ms Prowse (Crown) Mr Coroneos (Offender) File Number(s): 2017/184955 Publication restriction: Statutory non publication applies in relation to the complainant's identity or any information which would tend to identify the complainant Judgment 1. On 16 November 2016 Ali Irmak and Ruhi Dagdanasar were arrested in relation to a number of sexual assaults on a victim whose name cannot be published. They were charged with ten counts of aggravated sexual assault in company pursuant to s 61JA of the Crimes Act 1900 which each carried a maximum penalty of life imprisonment without parole. That is specifically stated by the legislature to mean imprisonment for the term of one's natural life if they were convicted of any of those counts. Although it is irrelevant to the sentencing process by way of background it may be noted that Ali Irmak and Ruhi Dagdanasar were convicted by a jury of one count under s 61JA and five statutory alternatives to those offences. They were to be sentenced by me in this Court last Friday, but due to the lack of preparation of the case by counsel for both offenders, the matter has been adjourned for some months. 2. Each of the two men were refused bail after their arrest on 16 November 2016 and it is the contact between Ali Irmak and his brother in the months after his arrest that leads to Recep Irmak, born in 1982, to plead guilty today to count 1 on the indictment, that between 9 December 2016 and 21 June 2017 in Cessnock and other places conspired with Ali Irmak to coerce the victim to change her evidence in court proceedings with the intention of perverting the course of justice. 3. The offence pursuant to s 319 of the Crimes Act 1900, carries a maximum penalty of 14 years imprisonment with no standard non‑parole period. The maximum penalty reflects the seriousness with which the legislature and the community regards this type of offending. As the Attorney‑General said when introducing the legislation: "Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice and to this end must be protected from attack. Those who interfere with the course of justice must be subjected to severe penalties, not only that offences concerning the administration of justice affect individuals but the community as a whole has an interest in ensuring that justice is properly done." 1. The purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 must be borne in mind, and one in particular is the need to prevent crime by deterring the offender and other persons from committing similar offences. It is also necessary to denounce the conduct of the offender. The higher courts have consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected, so as to make it plain to the community and to deter others that the commission of this type of offence will be visited with serious punishment and that type of sentiment was endorsed by McClellan J in R v Giang [2001] NSWCCA 276 where his Honour said at [21]: "In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action." 1. This type of offending has been singled out as an offence of the most serious kind as the Court said in Taylor v R [2007] NSWCCA 99, and the fact that an attempt to pervert the course of justice did not succeed is of far less significance than the case of sentencing for an attempt to commit other substantive offences. It is therefore an error to take into account the fact that the acts were unsuccessful when assessing the objective seriousness of the offence and perverting the course of justice: R v PFC [2011] NSWCCA 117. It is the tendency of the conduct which is decisive and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis v R [2006] NSWCCA 307. 2. The use of intimidation or threatened violence as part of the conduct intended to pervert the course of justice increases the seriousness of the offence. While a person misguidedly attempting to protect a family member may ask for that to be a relevant consideration, the Chief Justice said in R v Nguyen (2004) 149 A Crim R 343 at [55], that "Protection of the system of criminal justice should not be significantly less vigilant where its perversion is attempted for the reason of family ties rather than the expectation of monetary gain" The more serious the offence the less weight should be given to motive as a mitigating factor. 1. In R v Moore [2012] NSWCCA 3 Simpson J said, at [35] "[W]hen consideration is given to the other purposes for which an offence of this kind is sometimes committed — for example, unwarranted acquittal on a serious charge — this offence may be seen in its proper perspective on the scale of objective gravity." 1. The agreed facts on which Mr Irmak bases his plea involve his brother Ali sharing a cell while in custody with a person described as "Witness 1" who was known to New South Wales Police. He was told by Ali that Ali wished to locate the victim and persuade her to change her evidence. "Witness 1 falsely represented to Ali that he had a friend who knew the victim and could locate her on his behalf. "Witness 1" then contacted New South Wales Police and told them that Ali was attempting to locate the victim and he agreed to cooperate with the police and provide Ali with the number of an undercover police officer (UCO) who would pretend to be a male capable of locating the victim on Ali's behalf. 2. On 9 January 2017 the offender visited his elder brother Ali in custody at the MRRC in Sydney and towards the end of that visit Ali introduced the offender to "Witness 1" . There was a phone call on 4 February 2017 when "Witness" 1 passed the phone number of the UCO to Ali and told Ali that it was the number of the person who would be able to find the victim. Later that day Ali phoned the offender on the gaol telephone system, their conversation was in Turkish and spoken in code and during the call Ali recruited the offender to engage in conversations and negotiations with the UCO with the intention of locating the victim and persuading her to change her evidence. 3. Ali instructed the offender to use "Witness 1 's" name as a reference when speaking with the UCO. Mr Coroneos of counsel for the offender points out that the transcription of the call demonstrates that the offender was acting at the direction and request of his brother in so far as he should attempt to contact the UCO. 4. Ali said in the course of that conversation, "get them to show their license and see it, then you can give them, and tell them I will give you whatever you want". Later on he said: "Check out the phone number, and if it's the right phone number, it belongs to a kid lives in Parramatta. Tell him you're "Witness 1". Tell him you need to meet up with him. Take a good car with you and get him to ride in the car. Tell him not to stress and you will look after him and tell him we may know him, he knows what to do anyway". 1. There was another call at 2.21pm on 4 February when Ali phoned the offender on the gaol system, again a conversation in Turkish was spoken in code. During the call Ali told the offender to ensure that the UCO's contact with the victim could not be linked back to them. Ali said: "Do you understand? Make sure he doesn't get you involved. Go speak with him and say brother, we are selling the car for this much, okay. You get the paperwork, we can get this much, you bring the paperwork, but make sure he doesn't get your name involved or my name or any of our names because I don't want our names on it". Ali went on to say: "Make sure you meet up with the car owner. He knows everything about the car. This kid will help you out. Make sure our name's aren't on anything and you can say he is our brother". 1. The offender made his first phone call to the UCO about an hour later. He used the number that had been given to him by Ali. 2. The next day Ali phoned the offender again from the gaol and again they spoke in code in Turkish. They discussed the offender's conversation with the UCO including the nationality of the UCO and the future contact. Ali told the offender to get confirmation of his access to the victim, referring to it as paperwork, before discussing how much they would pay him. Ali said, "What happened, did they talk to the kid". He said, "Yes, I talked to the kid and I said Monday". Ali said, "You know what I mean, tell him to bring the paperwork for the car and then we'll give the fucking price". 3. There was another call on 6 February from Ali to the offender in which the offender was told by Ali, "Make sure you talk properly. Be careful. Do you know the make and model of the car?". 4. The offender met the UCO at a car wash in Strathfield on 7 February. The offender gave the UCO a Post-it Note with the name of a victim written on it and he said, "Get onto it and get back to me and we'll take the next step". He asked the UCO to obtain a photo of the UCO and the victim together. 5. What he then whispered to the UCO was the essence of this offence. He said, "Whatever it costs, 20, 30, 40, to find the victim and convince her to go to the lawyer and change her story". I accept the inference asserted by the Crown that 20 or 30 or 40 was a reference to $20,000, $30,000 or $40,000 as the price to be paid to the UCO. 6. The UCO said, "Do you want her gone". The offender said, "I don't know". He said, "You're a mad cunt". The UCO said, "What do you want to do? What do you want me to do? You tell me what you want me to do?" The UCO later said, "Let you know how it goes. If she's not playing we'll go - we'll see and go from there". 7. The UCO called the offender back on 11 February and he told the offender that he had obtained a photo of the victim. Recep acknowledged this and they made an arrangement to meet. The UCO said, "Yeah, I found it - I got a photo of it but before I inspect it I'll sit down with you". As the Crown submits, that is the UCO telling the offender that he has successfully obtained access to the victim. 8. On 9 March the offender called the UCO and apologised for not getting in contact with him earlier and said that he would contact him in the next week. Over the course of the next two months, that is from about 9 March to 9 May, a further five phone calls occurred between the offender and the UCO and they made tentative arrangements to meet but there were no further meetings between them. 9. The offender was arrested on 20 June 2017. He declined to be interviewed. He has been in custody since that time. 10. It is conceded by Mr Coroneos that the circumstances of this case mandate the imposition of a term of fulltime custody so that it is unnecessary to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999 and it is common ground that the term of imprisonment should commence on the date of his arrest, namely 20 June 2017. 11. No criminal record was produced by the parties, and they have proceeded on a lengthy bail report which contains particulars of a number of offences which have been proven against the offender in the past. They start when he was 16 with robbery while armed with a dangerous weapon, dealt with in the Children's Court, for which he was given 18 months' probation as well as goods in custody and possessing a weapon without a permit. When he was 18 there was a charge of driving recklessly or furiously which led to a Community Service order for 100 hours. There are traffic offences dealt with by fines. In 2001, driving while disqualified offences led to periods of periodic detention for 12 months and in 2006 a conviction for a charge of supply prohibited drugs on an ongoing basis attracted a term of imprisonment of two years, with a non-parole period of 12 months. His record since then has been reasonably clear. In 2013 a section 10A order was made in relation to a charge of not obey direction of the police and he was fined for resisting an officer. There was a further s 10A order in relation to refusing to allow blood sample to be taken. On 28 December 2016 there were charges of stalking, intimidate and common assault. He was on bail for those offences at the time of this offence. Those offences were ultimately withdrawn or dismissed, but it's common ground that the fact that he was on conditional liberty at the time of this offending is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. 12. The only subjective material proffered by Mr Coroneos on behalf of the offender are a number of certificates in relation to his efforts to obtain qualifications in materials handling and work, health and safety, and has completed a number of other courses including alcohol and drugs emergency course while in custody. There is no evidence of any institutional misconduct charges and those certificates demonstrate that he has applied himself usefully to the task of improving himself while in custody. 13. The offender has not given evidence and I know nothing of his background or prospects. 14. I have been taken to a number of cases in which sentences have been imposed for offences of this type. The Crown and Mr Coroneos each referred to R v Mrish [2000] NSWCCA 17, R v Zreika [2000] NSWCCA 75 and Winter v R [2011] NSWCCA and I have taken account of the circumstances, both objective and subjective and the sentences imposed in those cases. As the Court said in Krivosic v R [2017] NSWCCA 167 recently the bare statistics or the sentences imposed in other cases can do no more than provide a very broad guide to the sentencing pattern. 15. Mr Coroneos has helpfully extracted the statistics which are of some assistance, although as the Court often says they are a blunt tool. He has helpfully extracted in his submissions by refining the search field to an appropriate level, the range of sentences that have been imposed and I take that into account, together with his reference to the cases which have been compiled on the Public Defender's website, in particular R v Marinellis [2001] NSWCCA 328 and Glover v R [2015] NSWCCA 293 being the additional cases to which he has referred. 16. The matter has been fixed for trial in August this year and today the offender pleaded guilty for the first time, although there was an indication some little time ago that this would be the course. In the circumstances, I accept that there should be a 15% discount on the term of imprisonment allowed for the utilitarian value of the plea. 17. Mr Coroneos accepts that further aggravating factors to be taken into account are the record of previous convictions to which I have referred, and that the offence was part of planned or organised criminal activity. Although of course to a large extent, a plea of guilty to a conspiracy charge involves planning as an element of the offence. 18. Although Mr Coroneos accepts that his previous record is an aggravating factor, he then turns to consider Veen v The Queen (No 2) (1988) 164 CLR 465 and returns to conventional wisdom that the effect of the record is more to deprive him of leniency in circumstances such as this. 19. Mr Coroneos submits that I should take into account as mitigating factors that the offender is unlikely to re-offend, that he has good prospects of rehabilitation and that he has shown remorse. However there is no evidence at all of any of those three aspects and there is no basis upon which I could make any such finding, even on the favourable standard required. However I do take into account as a mitigating factor the plea of guilty to which I have referred. 20. Mr Coroneos refers to well-known authorities in relation to the question of rehabilitation and the need for the careful consideration of individual circumstances, but those are statements in a vacuum when no subjective evidence is led as to the offender's circumstances of prospects. 21. The ultimate submission by Mr Coroneos is that given that the refined range of statistics, that show a range of sentences between six months and three years, and a non-parole period of between one year and six months and two years, that time served of almost one year and ten months should suffice. That is based on the proposition that the objective criminality is well below mid-level. That is a proposition that I cannot accept in the circumstances that I have outlined and I accept that the offending is in the high range as the Crown submits. This was a very serious offence in which this offender engaged the services of others, at the request of his brother, with the intention of having the victim of serious sexual assaults change her story for the benefit of his brother. Nothing strikes at the heart of the administration of justice more than that type of action and there is no evidence upon which any finding of special circumstances should be made or could be made. 22. In my view the starting point for the term of imprisonment is four years with a 15% discount for the utilitarian value of the plea. The orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of three years and five months to commence on 20 June 2017, expiring on 19 November 2020. 3. I impose a non-parole period of two years and six months, expiring on 19 December 2019. 4. The mention date (20 June 2019) and trial date (12 August 2019) in relation to this offender are vacated. Note – These ex-tempore remarks were revised without access to the court file ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2025