Director of Public Prosecutions v Alajbegovic and Sulemani
[2014] VCC 1045
•20 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00350 and CR-13-00446
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BANE ALAJBEGOVIC & BEKIM SULEMANI |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2014 | |
DATE OF SENTENCE: | 20 June 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1045 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle | OPP |
| For Alajbegovic For Sulemani | Mr P. Chadwick QC | Dean Cole & Associates Theo Magazis & Associates |
HER HONOUR:
1 Bekim Sulemani, you have pleaded guilty to a charge of common assault, an offence which has a maximum penalty of five years’ imprisonment.
2 Bane Alajbegovic, you have pleaded guilty to a charge of recklessly causing injury, an offence which also has a maximum penalty of five years’ imprisonment.
3 The offences arise out of the same circumstances. Apparently a debt was owed by the victim, Andrew Robertson, to you Mr Sulemani. On 16 March 2012, you both went to meet Mr Robertson at a small row of shops in Dandenong at night when the shops were closed. The purpose of the meeting was to have Mr Sulemani’s debt repaid. At the meeting, you Mr Sulemani became angry, took what has been described variously as a pole or a television bracket from the boot of your car, and approached Mr Robertson, demanding your money, and threatening him with the pole. This is the subject of the charge you face of common assault.
4 Mr Alajbegovic, you then stepped in, and to your credit, pushed Mr Sulemani away. However, shortly after that you punched Mr Robertson to the face three times, resulting in him receiving swelling to the cheek. This is the subject of the charge you face of recklessly causing injury.
5 Originally, you both faced charges of trafficking and blackmail, while you Mr Alajbegovic faced charges of intentionally or recklessly causing injury in respect of the injury for which you have now admitted responsibility.
6 The prosecution case for all these charges was based on Mr Robertson’s allegation that you together sold him a bag of methylamphetamine, and that a debt was owed to you both as a result of the transaction, leading to you making demands for payment when the debt remained unpaid, accompanied by threats, and in the case of Mr Alajbegovic, physical assault.
7 After a day of pre-trial hearings, a jury was empanelled. However, they heard no evidence because the case was adjourned while an eye witness to the alleged drug transaction was spoken to by your lawyers, after being located through enquiries made by the defence. The potential witness did not want to speak to the police, but was to be called as a defence witness. There followed negotiations to resolve the trial, and the jury were discharged once the trial had resolved. A fresh indictment was filed with the two charges I detailed at the beginning of these remarks. I accept that these charges could have been dealt with in the Magistrates’ Court.
8 It has been put on behalf of you Mr Sulemani that you provided Mr Robertson with a short term loan which he promised to pay back with interest, and that you got frustrated when the loan and interest were not repaid. It was put that you arranged to meet him to discuss repayment, and it was in this context that you lost your temper and threatened him with the item from the boot of your car and asked for your money.
9 It has been put on behalf of you Mr Alajbegovic that you were at the meeting simply because you are a friend of Mr Sulemani and you were often together. However, this reason for you being there does not quite sit with the agreed facts that you were showing Mr Robertson messages on your phone that he had sent you; showing them to him because he said he did not recall them, and you felt he was calling you a liar; and that it was in this context that you lost your temper and punched him with the hand that was holding the phone. That would seem to indicate some more history between you and Mr Robertson than you merely being at the meeting because you are a friend of Mr Sulemani.
10 However, I am not in a position to make a finding about the basis of the debt owed by Mr Robertson or whether it was owed to one or both of you, because he has not been cross examined since the potential defence witness provided a version of events apparently relevant to this. I have not been told what that version is. As a result of not being able to make a finding, I proceed on the basis simply that there was a debt owed by Mr Robertson to Mr Sulemani and that both of you were interested in securing repayment to Mr Sulemani.
11 There was no Victim Impact Statement provided in this matter. However, as it has been conceded on behalf of you Mr Sulemani that Mr Robertson would have been at least “momentarily fearful”, which I take it means fearful of being struck by you, and as Mr Robertson in his police statement expressed the view that you would have hit him if your co-accused had not stepped in, I proceed to sentence you on the basis that your actions caused him fear and apprehension.
12 As to your actions, Mr Alajbegovic, Mr Robertson suffered bruises and swelling to his cheek as a result of your punches to his face, and I proceed to sentence you on that basis.
13 Your barristers have pointed out some mitigating factors. I will look at those which apply to both of you and then turn to each of you separately.
14 First, you have each pleaded guilty, and I take that into account. Although the pleas were entered on the fourth day of the trial, there is still a utilitarian benefit of not running the trial through to its conclusion. Witnesses were spared the ordeal of giving evidence, except for Mr Robertson who, through no fault of either of you, was required to give evidence on the voir dire as a result of the loss of the recording of cross examination at committal conducted on behalf of you Mr Alajbegovic. He was at court waiting to give evidence before the jury on the morning that the trial resolved.
15 Next, I find that the entry of a plea of guilty, even though late, shows an acceptance of responsibility by each of you for your crime, and a level of remorse. I do not, however, accept that the plea was entered at the first available opportunity as submitted by counsel for Mr Sulemani. Although the charge to which Mr Sulemani pleaded was not filed until the day of the plea, it was a charge which was always open on the evidence and that particular evidence has not changed. The position on this argument would have been different had an offer to plead to assault been made at an early stage, even if it had been rejected by the prosecution.
16 I accept that for both of you, there has been some delay in the case being finalised. You were originally charged with more serious offences as I have said, which were to be heard at trial. That trial was in a series of other trials that you were not involved in, but which were listed to be heard one after the other. As a result, your matters have been heard later than might otherwise have been the case, and I take that delay into account in your favour.
17 Mr Sulemani, I turn now to discuss your case[1]. You are now aged 41 and you were aged 39 at the time of the offending. You were born in Melbourne of Albanian parents and you are the eldest of five children. You were married for 14 years, and you have three children. You are now living with your parents to assist your mother with your father’s care, and your son also lives with you. Your daughters live with their mother.
[1] Exhibit S1 – Outline of submissions
18 On your first appearance in a court in 2005, for a charge of recklessly causing injury, you received a sentence of imprisonment of three months which was suspended for 12 months. I am told that you injured a neighbour who was abusing your father, including by making racist remarks. There was no weapon involved and the injury was cuts and bruises to the face.
19 That conviction for causing injury is highly relevant to my task of sentencing you today. However, I find that the assault for which you are to be sentenced today is less serious than your previous conviction, as there was no physical assault, and no injury was sustained by your actions. But it is still a serious example of an assault of this type in that it involved a weapon, which you used to threaten the victim, and it seems you only desisted because your co-accused intervened. I do accept that the offending was over in a matter of seconds.
20 Until 2009, you had a very good work history with 20 years spent working in only two companies. You worked for the one company for fifteen years, rising from being a worker on the production line to become the Distribution Manager for Victoria. You left when you were overlooked for further promotion, and worked for five years with another company following that.
21 Apparently the combination of the losses of your marriage and your long term employment led you to abuse alcohol and amphetamines between the years 2009 and 2012. During these years, you committed further criminal offences.
22 In 2009, you received another term of imprisonment, this time of nine months, which was suspended on appeal for 15 months, for obtaining property by deception. In 2011, you were convicted and fined for possessing amphetamine. Since you committed this offence in March 2012, you have been in no further trouble.
23 I am told that after this offence, you stopped abusing drugs and alcohol and returned to full time employment in late 2012. Unfortunately, you were yourself the victim of an assault, when you were stabbed in the back in February 2013. Your injury required surgery, and you have not returned to work. This year, your physical health has deteriorated, with you being admitted to hospital for nine days in May this year[2], and again following the plea, which led to the sentence being adjourned to today.
[2] Exhibit S2 – Letter from Monash Health dated 20 May 2014
24 Because you began to rehabilitate yourself after the offence, by reducing or stopping your drug use, and returning to employment, I find that your prospects of rehabilitation are quite good. The likelihood of you reoffending is reasonably low, mostly due to your ill health, but also because of your mature age, although I do note that you only commenced offending at the age of 30.
25 Your counsel submitted that imprisonment was not the only suitable disposition, and that a fine, or a Community Correction Order with conviction was an appropriate penalty. The prosecutor conceded that imprisonment was not the only suitable disposition. I will return to sentence you at the end of these remarks.
26 Mr Alajbegovic, I turn now to discuss your case[3]. You are now aged 30 and you were aged 28 at the time of the offending. You were born in Australia as the only child to Serbian parents who arrived in Australia in 1981.
[3] Exhibit A1 – Outline of Submissions
27 During your teenage years, you were not in trouble with the police. You completed your VCE and began a TAFE computer programming course, but it was not to your liking, and you left during the first year. You then entered the workforce, and you have a good work history in a range of jobs. Recently you commenced a contracting business with another person, for framing, plastering, and rendering.
28 You live with your parents, who were in court to support you, and together with them, you also run a promotions business. Apart from being involved in that business, your parents receive disability support benefits, as they each suffer from chronic ill health[4]. You are their carer.
[4] Exhibits A2 and A3 – Letters
29 Before the age of 21, you began to use drugs, and you had a substantial habit for about three years from 2005, using mainly amphetamine and methylamphetamine (up to 1.75g of ‘ice’ per day) and abusing Xanax to come down from the effects of ‘ice’. I was not told what led to this habit.
30 You have admitted to a criminal history which I am told arose as a result of your drug habit. In 2007, you appeared in court on two charges of assault. You were not convicted, but the matter was adjourned on you giving an undertaking to be of good behaviour, which you breached, and ultimately you were convicted. I was told that these charges arose out of a ‘road rage’ incident when you and the other driver involved attended a police station and while there, you kicked the driver. I make the comment that the outline given does not seem to equate to two charges. As part of the undertaking, you were required to complete an Anger Management program, apparently with the Salvation Army.
31 In 2008, you were fined without conviction for another assault. I was told that this charge arose from a conflict between a group of Serbians and Bosnians over a televised soccer match. The victim suffered bruising and a black eye. Clearly, the Anger Management program you were ordered to complete in 2007 did not lead to a change in your behaviour.
32 In 2009, you were sentenced to a Community Based Order for 12 months on a charge of recklessly causing injury, involving a nightclub brawl where I am told you stepped in and threw the punch which apparently stopped the fight. The victim suffered a black eye.
33 As I understand it, you were ordered to complete another Anger Management course as a condition of the Community Based Order, but you breached another condition of the order by committing offences involving trafficking and weapons in 2010. I am told you successfully complied with conditions of bail under the Courts Integrated Services Program, including returning no positive results from screening for drug use, while awaiting the hearing for the trafficking and weapons offences, and you have not used drugs since.
34 Following this further offending, the Community Based Order was confirmed, and on the new charges, you were originally sentenced to an Intensive Correction Order for six months. On appeal in 2011, that order was set aside and you were sentenced to an aggregate term of imprisonment of 12 months, which was wholly suspended for two years.
35 A condition of every suspended sentence is that the person subject to that sentence not commit an offence punishable by imprisonment. You were undergoing that sentence when you committed the offence against Mr Robertson in March 2012. There are some issues with the validity of the order imposing and then suspending the term of imprisonment, and it is conceded by the prosecutor that as things stand, I cannot deal with the breach of the suspended sentence. However, there is nothing to indicate that you were aware that the sentence of imprisonment was potentially invalid, and I am satisfied that you injured Mr Robertson within nine months of receiving that sentence, while being aware of the condition that you not commit any offence punishable by imprisonment. I treat that disregard by you of the seriousness of a suspended sentence as an aggravating feature of the offence for which I am sentencing you today.
36 Following the commission of the offence against Mr Robertson, you were involved in another ‘road rage’ incident four months later in July 2012, when your father who was a passenger in your car got out of the car at a set of lights to speak to another driver. Your father began hitting the window of that car, and the driver got out of his car whereupon he was punched to the face by you, as was the driver of the car behind who also got out of his car. The victims received cuts and bruises to the face. On two charges of assault, you were fined $2500, apparently without conviction.
37 You spent a month in custody before sentence on that matter, and were bailed with a condition to complete another Anger Management course. You attended one on one counselling with a psychologist between September and December 2012. I received a report from the psychologist[5], confirming that you completed six sessions and appeared to have benefitted from them, but the psychologist sounded the note of caution that with this short term therapy, chances of relapse may be high.
[5] Ex A4 – Letter from Equilibrium Psychological Services 5 June 2014
38 There are two outstanding matters yet to be dealt with in court. It is alleged that in September 2013, you were trafficking drugs and conducting a clandestine drug laboratory, leading to a charge of trafficking and a charge of conduct endangering life as a result of a fire. I am told that matter is currently in the committal stream.
39 In January this year, you were arrested in Queensland, together with your business partner, under that State’s legislation concerning outlaw motorcycle gangs. You were held in custody for three weeks, and that matter remains pending. I am told that you ‘dabbled with membership of the Commancheros’ in late 2013, but were not a member, while your business partner was apparently a ‘nominee’ of the Commancheros, and although he resigned, he was also arrested and charged. I am told that because of the time you both spent in custody, and some adverse publicity, your new business lost some work.
40 The four appearances for assault and causing injury are highly relevant to my sentence of you today. The subsequent offences of assault, demonstrate that you still showed aggression to others despite the counselling you had been ordered to receive before then. I note that I received no material about those earlier anger management courses.
41 I heard evidence of good character from a person who has known you for 15 years through mutual friends in the Serbian community. She said she was aware of your previous assault matters, and that she had never seen any sign of you threatening anyone. She said you had told her a bit about the anger management courses, that you apparently realise what you have done, and have grown up.
42 I also received two character references[6], from a member of the Australian Albanian Community Association Dandenong, and the Mayor of Greater Dandenong. Each wrote that you have shown in the last year that you can lead a peaceful life, and that you do not get upset as quickly, nor are you as aggressive and angry as you once were. You are noted as being an outstanding contributor to the Community Association.
[6] Exhibit A5
43 Your counsel submitted that a fine with conviction was an option for dealing with the offence against Mr Robertson, but conceded that with your criminal record, a Community Correction Order with a condition for further anger management counselling to follow up on the sessions from 2012, together with a fine, was within range. He submitted that I should not impose a term of imprisonment, although if I did, there was a capacity to suspend it.
44 The prosecutor submitted that specific deterrence was important in my sentence of you because of your history of committing assault; because you breached an undertaking to be of good behaviour and a Community Based Order, it seems by re-offending in each instance; because you knew you were on a suspended sentence at the time of the offence against Mr Robertson; and because you committed another assault after that offence. He submitted that limited weight be given to the character evidence.
45 You were assessed for a Community Correction Order in respect of this charge, and found to be suitable. It is of course a matter for me as to what the appropriate sentence is.
46 I find that your prospects of rehabilitation are not high, and you are likely to reoffend again. While it is true that you have not been charged with any assault related offences since completing the most recent anger management counselling in late 2012, the prognosis of the psychologist is guarded and I find it likely that you have not yet learned to fully control your aggression. You are prepared to work and contribute to the community, and you look after your parents. These are factors which go towards your rehabilitation; however, they are matters which have existed in the past, but have not prevented you from offending. Perhaps at the age of 30, you may have begun to grow up, as your friend put it.
47 For both of you, Mr Alajbegovic and Mr Sulemani, I take into account that my sentence of you must be seen to deter other men from acting as you each did, and because of your relevant criminal records, the sentence must also deter you both from committing similar offences in future.
48 Turning to you Mr Sulemani, I have considered all options, including imprisonment. A fine is simply inadequate to properly reflect the sentencing principles. Because of your previous conviction for recklessly causing injury, and your general criminal history, and because of the nature of the assault you committed against Mr Robertson, involving a weapon, I do not think there is any alternative to a term of imprisonment, despite the concession made by the prosecutor. However, because of the factors in your favour, particularly your attempts at rehabilitation since the offence, and your current ill health, I propose to wholly suspend the sentence.
49 I am satisfied that a suspended sentence adequately manifests the required level of denunciation by the court of your offending conduct, provides adequate deterrence, and adequately reflects the gravity of the offence. I think there is little risk of you committing an offence punishable by imprisonment while your sentence is suspended.
50 The purpose of imposing a sentence of imprisonment is to indicate how serious the offence is. The purpose of suspending it, is to allow you to demonstrate your commitment to your rehabilitation.
51 I will make the formal orders in a moment. I intend to sentence you to a term of one month imprisonment. The whole of that term will be suspended for six months. During the period of suspension, you must not commit another offence punishable by imprisonment. If you do, you will be brought back before me and be ordered to serve the term of imprisonment. Do you understand what will happen if you commit another offence while you are on a suspended sentence?
52 You are convicted and sentenced to one month imprisonment. I direct that the whole of that term be suspended for six months. In the event that this sentence needs to be re-visited, I note that you have served no days in custody for this offence.
53 If you had not pleaded guilty but been found guilty after a trial the sentence I would have imposed is three months’ imprisonment.
54 Turning to you Mr Alajbegovic, I have considered all options, including imprisonment. Because of your numerous convictions for assault, and your general criminal history, including breaches of court orders designed to promote your rehabilitation, and because of the similarity of the assault you committed against Mr Robertson to offending committed by you in the past, I do not think there is any alternative to a term of imprisonment.
55 I considered suspending the term of imprisonment, but I am not satisfied that such a sentence would provide adequate deterrence of you, given your history. I think that there would be too much of a risk of you committing an offence punishable by imprisonment while your sentence was suspended.
56 You are convicted and sentenced to three months’ imprisonment.
57 If you had not pleaded guilty but been found guilty after a trial, the sentence I would have imposed is five months’ imprisonment. I note that you have served no days in custody for this offence. Yes, thank you Mr Alajbegovic may be removed. Yes, thank you I'll stand down until the trial comes on.
58 MR COLE: Sorry Your Honour, there was one other matter Mr Chadwick asked me to bring to Your Honour's attention, my apologies. He'd asked me to make an application for a certificate under s.17 of the Appeal Costs Act.
59 HER HONOUR: For which day?
60 MR COLE: For the - as I understand it the two days, 22 and 23 May, the trial having been listed to commence at one stage on 22 May, but then due to issues in relation to the previous trial and Mr Sulemani’s health, there was a mention on 23, and then trial was adjourned to 2 June for commencement.
61 HER HONOUR: So 22 and 23 May are the dates?
62 MR COLE: Yes Your Honour.
63 HER HONOUR: Yes, all right. Well I'll give some consideration to that.
64 MR COLE: As Your Honour pleases.
65 HER HONOUR: And you'll be notified if that order is to be made.
66 MR COLE: My apologies for not raising it earlier Your Honour.
67 HER HONOUR: Yes, all right, thank you.
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