Director of Public Prosecutions v Andonovvski
[2013] VCC 473
•17 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-12-01328
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIOLETTE ANDONOVSKI |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | April 8 2013 | |
DATE OF SENTENCE: | 17 April 2013 | |
CASE MAY BE CITED AS: | DPP v Andonovvski | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 473 | |
REASONS FOR SENTENCE
---
Subject: RCSI Attempted armed robbery
Sentence: 4 years imprisonment with 2 years and 6 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Zammit | |
| For the Accused | Mr C Farrington |
HIS HONOUR:
1 On the 8th of April 2013 you pleaded guilty to two charges on indictment B12993693.
2 Charge 1 is a charge of Recklessly Causing Serious Injury for which the maximum penalty is 15 years imprisonment.
3 Charge 2 is a charge of attempted armed robbery for which the maximum penalty is 20 years imprisonment.
4 You can see from the maximum penalties prescribed by the parliament that it rightly regards the kind of offending you have engaged in very seriously.
5 In passing sentence on you for your offending I have had regard to the maximum penalty for each offence as I must.
6 Sentences for offending of this kind are almost always guided by proper application of the principle of general deterrence and any sentence must reflect the court’s and community’s denunciation of offending of this kind. Protection of the community from offenders such as you is also important and where (as in this case) an offender has prior convictions the court’s sentence must have proper regard to the application of specific deterrence. In short by its sentence a court must try to ensure that offenders such as you and others do not offend in this way.
7 Both charges to which you have pleaded guilty arise out of your offending which occurred in the early morning on 27th June 2010. The full circumstances are as summarised in the summary of prosecution opening which was tendered in evidence and read to the court by the prosecutor Ms Zammit (Exhibit A).
8 Your counsel Mr Farrington accepted the summary accurately summarised your offending and constitutes a proper factual basis upon which I can proceed to pass sentence upon you. I do not need to refer to the whole of your offending here except in summary form.
9 You are and have been for a long period of time a drug addict. You have many prior convictions from 13 court appearances dating back to 1993 when you were aged 18.
10 You admitted a record of your prior convictions which include a prior convictions for dishonesty and assault. Your offending here occurred during the operational period of a suspended sentence of imprisonment imposed at the Heidelberg Magistrates’ Court on 10 September 2009. That is an aggravating circumstance of your offending. As I say you have a number of prior convictions from 13 previous court appearances dating back to 1993. 7 of your prior convictions are for assault but your other offending is of the dishonesty kind. You have received a number of non custodial dispositions in the form of suspended sentences and Community based orders. This is the first time you will have received an actual sentence of imprisonment with immediate custody. You did spend 13 days on remand in 1999 but that offending resulted in a non custodial disposition. The offending you engaged in here does represent a significant increase in the level of violent behaviour above that which you have previously engaged in.
11 On the day of the offending you met for the first time your co-offender Milan Gala who visited you with his friend Paul Carrafa. At that time Gala was also a drug user who was described in a separate plea before me as having been on a six day period of using ICE . You and Gala discussed ways of obtaining heroin and hatched a plan to obtain some of that drug from Gala’s long term heroin supplier one George Fadel.
12 Gala made contact with Fadel and told him he had money to buy heroin from him. A meeting was arranged. In fact, neither you nor Gala had any money to buy heroin.
13 You produced a .22 rifle and said you would take it to the meeting with Fadel. You fired the gun in your house and later as you were being driven to the meeting with Fadel, you again discharged it. You and Gala decided to threaten Fadel with the gun if he would not give Gala the heroin on credit.
14 You and Gala and Carrafa (an associate not charged) travelled by car from your house in Kings Park to the housing commission flats in Elizabeth St Richmond. That is where Fadel lived. On arrival Gala contacted Fadel and arranged a meeting so he could be supplied with the heroin. Both you and Gala were captured on CCTV footage outside the Elizabeth St Richmond Housing Commission flats awaiting the arrival of Fadel. You were disguised wearing a hooded top and the rifle which was sawn off was concealed down the back of your pants. Fadel eventually arrived and showed Gala the heroin which he asked Fadel to supply on credit. Fadel refused. Gala tried to take the heroin from Fadel and a struggle ensued. Fadel produced a knife. You then intervened. You demanded Fadel give you his drugs and money. You then shot Fedal in the upper right leg with the rifle you carried. You also made other attempts to shoot him. Fortunately for you the rifle did not fire. You then hit Fedal in the head with the butt of the gun.
15 You and Gala decamped from the scene later meeting at Caraffa’s house where you warned Gala about revealing details about what had occurred.
16 Fadel sustained a gun shot wound to the left thigh and a lacerated scalp.
17 You did not succeed in obtaining the heroin. Hence you are charged with attempted armed robbery.
18 Fadel made a statement of no complaint to the police but later made a statement outlining a version of events. The prosecution has not filed a Victim Impact Statement.
19 A search warrant was executed at the premises of Gala on 21 July 2010 about one month after the offending. This was after the police had obtained CCTV footage of you and Gala in the act of offending. Gala was formally interviewed and made a ‘no comment’ record of interview but he did tell the police he met up with ‘George”, a person he knew in Richmond on the morning of the offending. He was not charged at that time.
20 On 3 August 2010 you attended at Keilor Downs Police Station where you were arrested and interviewed. The interview was suspended so that a search warrant could be executed on your premises. No items were seized during a subsequent search of your premises and the interview was recommenced. You made a ‘no comment’ record of interview at that time.
21 On 10 August 2010 police searched an address in Delahey where the rifle used in the offending was located and seized along with ammunition.
22 On 13 October 2011, some 16 months after offending, Gala was arrested and a second interview was conducted with him. He made a statement detailing his offending and implicated you.
23 On 26 October 2011 you were again arrested and a second record of interview followed. You again made a ‘no comment’ record of interview. You denied you were the female depicted in photo stills from the CCTV footage and said you had never used a gun in your life.
24 You were charged with a number of offences and a contested committal lasting 5 days was held. The principal issue in dispute was whether there was evidence identifying you as the female involved in the attempted armed robbery and as the person responsible for discharging the rifle that wounded Fedal. You pleaded not guilty at committal and have been in custody on remand since then.
25 Gala gave evidence against you at committal and gave an undertaking before me that he would give evidence against you at your trial. That is a distinguishing factor between you and Gala. The CCTV footage is not clear and neither you or Gala can be properly identified from it. Gala’s evidence was vital in the case against you to identify you as the person who is seen on the CCTV footage as firing the shot that wounded Fedal.
26 You have now been in custody at the Dame Phyllis Frost Centre since the 12th July 2012. As at the time of the plea it was agreed you have spent 209 days in pre-sentence detention.
27 Whereas Gala pleaded guilty at the earliest opportunity and without a contested committal, you indicated your agreement to plead guilty to the charges in the indictment in October 2012 about three months after committal. The prosecution accepted your offer in November 2012. There followed a short delay whilst it was arranged for me to hear the plea, it being myself who had sentenced your co-offender Gala which I did on 22 May 2012.
28 In passing sentence upon you I have taken into account the fact you have pleaded guilty to the charges and the time that you indicated that you would do so. Although your pleas follow a contested committal and it cannot be said that your pleas were made at the earliest opportunity they none the less have saved the time and costs of a contested trial and are of real value in my view. In my opinion you are entitled to a reduction in the sentence that you might otherwise have received but for your pleas of guilty. Not only have you saved the community the time and costs of a trial, you have also saved your victim from having to give evidence against you.
29 In passing sentence I accept that your pleas of guilty to the charges also signify genuine remorse on your part for your offending. Although you made no comment records of interview I accept that you now realise that what you have done was wrong as you have represented to Mr Cunningham a clinical psychologist who has consulted with you for forensic purposes and I accept that you have told your parents you regret your conduct and accept responsibility for what you have done and that you are indeed remorseful.
30 Gala was fully cooperative with the police from the time of his second interview with police and had in fact taken positive steps to re-order his life and rid himself of drugs even before he was charged with these offences. He used the period of the delay between offending and his plea to his benefit. Your situation is different. In the case of Gala I reduced his sentence in part on account of delay in bringing his plea to the court. It is not appropriate that I do so in your case and Mr Farrington did not submit that I should.
31 The charges represent two serious examples of what are in any circumstance serious offences. The attempted robbery here was particularly serious given it occurred in some aggravating circumstances, namely it occurred whilst a suspended sentence was operative and in the course of the robbery attempt you discharged a gun and wounded Fadel. The robbery was planned in the hours leading up to it. You and Gala planned to take a loaded gun. You knew that it could be fired. You were disguised and the rifle which was sawn off was concealed upon you.
32 The gun was in fact used by you to wound Fadel. Even though the offending occurred in the early hours of the morning when most people were asleep it nonetheless occurred in a very public place outside the entrance to the Richmond Housing Commission Flats.
33 I admitted into evidence a psychological report from Dr Aaron Cunningham which your counsel Mr Farrington relied upon as to factual background matters. You are approaching 38 years of age. Your parents are humble hard working migrants and you have one brother. You left home at 18 and eloped with a man Lumakovski and you had a child with him Bradley now aged 13. You told Mr Cunningham Bradley was sexually abused by your nephew when aged 5 years and that your relationship with Lumakovski was violent and abusive because he abused drugs and alchohol.
34 You left Lumakovski when Bradley was aged three and moved to a house acquired for you by your parents. There followed a relationship with a man Tadesco which lasted 8 years. He too was a drug addict.
35 In 2008 you witnessed your brother being savagely beaten and having his skull crushed in a motorcycle club war which you apparently vividly recall. In 2010 you were sexually assaulted and bound and gagged by a group of men.
36 For the past two years you have been in a relationship with a man named Vella, another drug addict. He has just been released on Parole from prison. He visited you in custody but was drug affected. You have broken all contact with him. That is also to your credit as it evidences insight on your part into your problems and shows by deed a determination to do something about them.
37 You completed year 12 at school and then a fitness instructor course at Victoria University and have had a number of worthwhile jobs.
38 You have suffered a nervous breakdown and you have been on a disability support pension. You have abused benzodiazepines since aged 17 and have also used heroin and amphetamines. You told Dr Cunningham and I accept that at the time of offending you were abusing methamphetamine and Xanax. You also told him that you could not recall the offending. These matters explain your offending. They do not excuse it.
39 Dr Cunningham opines and I accept you suffer from Post Traumatic Stress Disorder and Borderline Personality Disorder. He also opined that because of this your experience of prison will be more onerous than for someone not suffering from such matters. He also opined you will benefit from mental health treatment whilst in prison and upon release.
40 Ms Zammit who appeared to prosecute conceded that the diagnosis of PTSD and Borderline Personality Disorder meant that in sentencing the 6th principle in Verdins has application. In passing sentence upon you I have had regard to all of these matters.
41 Mr Farrington told me and I accept that you are realistic about the benefits of custody because whilst in custody you have remained drug free. He told me and I accept it is your desire to remain drug free. I was told and accept you have said that you can now think clearly again.
42 I accepted into evidence a letter from your son who pleads to be reunited with you and you want to reunite with him as soon as possible to resume caring for him drug free. It was not argued that the affects upon your son and family caused by your incarceration are exceptional. Ms Zammit did concede that I should nevertheless take this into account as I have.
43 I also admitted into evidence a letter from your parents who clearly care for you and your son. In 2010 they went to the police to see if something could be done about your erratic behaviour caused by drugs. The police did not become involved. I am however satisfied that you will have a home to go to with support when you are eventually released from prison. Your parents and your son will be there to assist you.
44 Because you are a drug addict whether or not you can achieve a full rehabilitation will depend on whether or not you can remain drug free. Any prognosis as to your rehabilitation must therefore remain guarded. I regard your chances of achieving full rehabilitation as being at best only fair. Time will tell. I hope I am proved wrong.
45 Whilst in custody on remand you have spent time in the Marmak unit because of acute mental illness. You have also spent time on protection because you have been the subject of several assaults whilst in custody. You have also attempted self harm and suicide. Your time in custody thus far has therefore been made more difficult and I assume will not improve after this sentence. In passing sentence I have taken this into account.
46 Ms Zammit who appeared to prosecute agreed that there were a number of matters in mitigation that had to be considered. But she submitted the offending here was very serious and you have offended many times before. She submitted this offending was aggravated by the fact it occurred during the operational period of a suspended sentence.
47 Ms Zammit submitted there were a number of distinguishing features here from those that applied to your co-offender Gala:
48 Namely:
49 Although sentenced as a principal complicit with you, Gala did not fire the gun, you did;
50 Gala pleaded guilty at the first available opportunity whereas you had a contested committal and made an offer to plead to these charges three months latter;
51 Gala was fully cooperative and made a statement implicating you and did so at committal and gave an undertaking to do so at trial;
52 In Gala’s case there was considerable unexplained delay in bringing the matter to the court and Gala had commenced to rehabilitate himself even before he was charged.
53 All of the above features played a significant part in reducing the sentence I imposed on Gala.
54 Ms Zammit submitted your offending was planned and included taking a firearm which was used. She submitted the offending was aggravated by the fact it occurred in a public place. Ms Zammit submitted an appropriate sentencing range was for a head sentence of six and a half to seven and a half years with a non parole period of four and a half to five and a half years. Mr Farrington described this range as inappropriate. I agree.
55 When I sentenced Gala on the same charges I imposed a sentence of two (2) years imprisonment on charge 1 and to two and a half years imprisonment on charge 2. With a measure of cumulation I arrived at a total effective head sentence of three and a half years and I ordered he serve a minimum of 21 months imprisonment before being eligible for release on parole.
56 As I set out above there were a number of features peculiar to Gala that resulted in him receiving the sentence he did.
57 Those features are not present here but that does not mean that parity in sentencing should be lost sight of. In passing sentence I bear in mind the sentence I imposed on Gala.
58 In your case you have pleaded guilty albeit not at the earliest opportunity. As I said your pleas of guilty are of real value and in my view are made with genuine remorse. You have fewer prior convictions than Gala and he had prior convictions for armed robbery and robbery. Whilst your attempts at ridding yourself of drugs and rehabilitating yourself are not as advanced as was Gala I nevertheless accept that whilst in jail and drug free you have gained insight into your problems caused by drug use and you are endeavouring as best you can whilst in prison to turn your life around. I also accept the evidence of Dr Cunningham and act on it. I accept that I must moderate the sentence that I pass because of your mental illness and the fact your time in custody will be more burdensome than for someone not afflicted with Post Traumatic Stress Disorder and Borderline Personality Disorder.
59 In passing sentence I have taken all of these matters into account.
60 On Charge 1 recklessly cause serious injury you are convicted and sentenced to three (3) years imprisonment.
61 On charge 2 attempted armed robbery you are convicted and sentenced to three (3) years imprisonment.
62 I order that 12 months of the sentence imposed on charge 1 cumulate upon the sentence imposed on charge 2 making a total effective sentence of four (4) years imprisonment.
63 I direct that you serve a minimum of two and a half years imprisonment before being eligible for release on parole.
64 I direct that 213 days pre-sentence detention (as at 11 April 2013) be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and deducted administratively.
65 For the purposes of S 6AAA of the Sentencing Act 1991 I declare that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of 6 and a half years imprisonment and I would have fixed a minimum term of four and a half years before you would be eligible for parole.
66 The prosecution seeks a forfeiture order for the firearm you used. This was not opposed and I have signed the order.
67 The Office of Public Prosecutions has made application for an order directing you to undergo a forensic procedure for the taking of an intimate sample, from your body. The crime of attempted armed robbery is a forensic sample offence under the relevant schedule to the Crimes Act 1958.
68 On the hearing of such an application, the Crimes Act, pursuant to s.464ZF(8), provides that the court must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order sought by the prosecution and, in the end, I must be satisfied that in all the circumstances the making of the order is justified. The Act provides that I should give reasons for my decision and I now do so.
69 The circumstances of these offences, as will appear from my reasons for sentence, are extremely serious. The granting of this order is in the public interest.
70 I note that you have not objected to the application by the prosecution for such an order being made. Accordingly, I am satisfied on a consideration of all the circumstances that the making of an order under s.464ZF(2) is justified.
71 Accordingly I have signed the order sought.
72 Ms Andonovski I am required to inform you that having made this Order, once it is served upon you, then a member of the police force may use reasonable force to enable the procedure to be conducted, which in this case is the taking of a scraping from your mouth. I have signed an Order to the above effect.
73
74
0
0
0