Director of Public Prosecutions v Angelov
[2014] VCC 1969
•21 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-02000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZORAN ANGELOV |
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| JUDGE: | HER HONOUR JUDGE PULLEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 November 2014 |
| DATE OF SENTENCE: | 21 November 2014 |
| CASE MAY BE CITED AS: | DPP v Angelov |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1969 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Ellis | Office of Public Prosecutions |
| For the Offender | Ms L. Torres | Sunshine Legal |
HER HONOUR:
1Zoran Angelov, you have pleaded guilty to one charge of robbery. The maximum penalty applicable to that offence is 15 years' imprisonment.
2This crime arises out of events which took place on 14 June 2014 and involved the victim of your offending, Sam O'Neil.
3It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. You also have a lengthy prior criminal record from 2001 to 2012, to which I shall shortly refer.
4I turn then to a brief summary of your offending.
5At the time of this offending you were 32 years of age and are 34 at time of sentence. You were then living at 32 Felstead Avenue, Sunshine West.
6The victim of your offending, Mr O'Neil, lived next door at 34 Felstead Avenue, Sunshine West with four or five other men including Josh Mclean.
7You had known Mr O'Neil for approximately two months prior to this offending.
8On 14 June 2013 at about 6.00am you knocked on Mr O'Neil's bedroom window and woke him up. Mr O'Neil told you to go to the back door where he met you and invited you inside. You appeared to be agitated.
9You said you were upset with Mr O'Neil as he had refused to supply Xanax approximately three weeks prior. Mr O'Neil told you he was unable to supply you with Xanax because your father had told him not to.
10You became angry and argumentative, and told Mr O'Neil to come over to your house. Mr O'Neil refused. You then pushed Mr O'Neil to the chest and attempted to push him out the door. Mr O'Neil maintained his refusal to accompany you back to your home. You swung your left fist and hit Mr O'Neil to the right side of his face, and Mr O'Neil received a cut to his lip as a result.
11You demanded $350 cash and Xanax from Mr O'Neil. Mr O'Neil handed you $250 plus ten Xanax tablets. You took the cash and tablets from him. These are the circumstances surrounding the charge of robbery.
12A witness, Mr Josh Mclean, who was in his room at the time, heard yelling in the hallway and went out to see what was going on. He saw you "standing over Mr O'Neil" and saw Mr O'Neil appeared scared. Mr Mclean told you to "fuck off" and you left the house.
13At approximately 12.15pm on 14 June 2013, Mr O'Neil attended at Meadows Medical Centre and received treatment for the cut to his lip. He then attended Sunshine Police Station at approximately 2.30pm and reported the matter. At that time photographs were taken of his injury (Exhibit B).
14You were arrested at your home at approximately 8.20pm that same day and taken to Sunshine Police Station where you were interviewed. During the interview you told police you had slept during the day before police had attended your house that night. You said you knew Mr O'Neil and initially said you had not seen him for about two or three weeks. Later in that interview you acknowledged attending Mr O'Neil's house that morning but you denied knocking on the window. You told police you only went there to ask for a cigarette. You denied the allegations that were put to you regarding the commission of the robbery.
15An aggravating feature of your offending was that you were on five sets of bail, most recently having been bailed on 4 June 2013, just ten days prior to this current offending occurring.
16
You have pleaded guilty to this charge and that is a relevant sentencing consideration in mitigation of your sentence. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses, in particular,
Mr O'Neil, have been spared the need to give evidence upon your trial.
17I note that there was a contested committal in this matter. However, consistent with the discussions I had with the prosecutor and your counsel, I accept that there were attempts made prior to the committal on 8 October 2013 with the committal on 17 October 2013 to resolve this matter. I also note the prosecution no longer maintains the allegation you had a knife on this occasion, and as such, I accept that your plea of guilty to this charge was offered at the earliest reasonable opportunity.
18You have spent 250 days in custody by way of pre-sentence detention for this offending as at the date of your plea, 19 November 2014. Specifically, you were in custody from 14 June 2013 to 18 February 2014, following which you were on bail.
19You have a number of prior court appearances from 2001.
20Your first appearance in court was on 23 February 2001 at the Melbourne County Court on charges of aggravated burglary, false imprisonment and theft. You received a sentence of imprisonment of two years with a non-parole period of 12 months.
21You then appeared at Sunshine Magistrates' Court on 17 December 2002 on charges of trafficking a drug of dependence, possess heroin and possess and use cannabis. You received a suspended term of imprisonment, also a conviction with a fine.
22You then appeared at Melbourne County Court in February 2004 on a charge of armed robbery and were sentenced to two years and six months' imprisonment with a non-parole period of 12 months.
23You were then at the Sunshine Magistrates' Court on 19 February 2004 for breaching the earlier suspended sentence to which I have referred, and also for additional charges of theft and failing to answer bail, and received an aggregate sentence of four months' imprisonment.
24You then appeared at the Sunshine Magistrates' Court on 7 October 2005 for a number of driving offences and possessing a controlled weapon without excuse and were fined.
25Your previous criminal history was clarified during the course of the hearing in discussions with the prosecutor and also your counsel, and the transcript will reveal that discussion. Ultimately it would appear that on 19 April 2011 you were placed on a three month aggregate sentence together with a community corrections order.
26On 8 March 2012 you were dealt with for breach of a community corrections order and the breach was proven. For the original, plus some additional charges, you were sentenced to an aggregate sentence of five months, as I understand it. You appealed that decision to the Melbourne County Court on 16 April 2012. The orders of the Magistrate were set aside and you were sentenced to a three month aggregate sentence with a fine.
27You have therefore breached the previous community corrections order through further offending. Counsel were unable to assist with whether there were any breaches of other conditions of that order.
28I note with some concern your prior history includes armed robbery and dishonesty offences.
29You have unfortunately also appeared in court subsequent to the date of this offending, and your subsequent court appearances are relevant to your rehabilitation prospects, although I note none of the offences dealt with on 23 July 2013 at Sunshine Magistrates' Court were for offences that occurred after the date of this current offending. Rather, I was told that on 23 July you were dealt with at Sunshine Magistrates' Court on charges of theft, going equipped to steal and multiple other charges, those offences occurring on varying dates predating your offending before me.
30You also subsequently appeared at Sunshine Magistrates' Court on 29 August 2013 on a charge of theft of a motor vehicle, that offence again occurring prior to the offence before me, specifically on 11 March 2013. In relation to your appearance on 23 July 2013, you were sentenced to 14 days' imprisonment which was declared as time served. For your appearance on 21 August 2013 you were sentenced to seven days' imprisonment, again declared as time served.
31You most recently appeared at Sunshine Magistrates' Court on 14 April 2014 on a charge of shop theft and were placed on an undertaking with conviction to 3 April 2015 with a condition you continue to see Dr Peter Wright, to whom I shall refer in a moment. The prosecution were unable to confirm whether that offending dealt with on that date, occurred after your offending that is before me. The prosecutor in the end conceded it was possibly in May 2013 which would therefore pre-date your offending before me.
32I was advised there is a pending court appearance on 19 December 2014 at the Sunshine Magistrates' Court and no further details were provided to me in that regard. As this is yet to be dealt with, I disregard it for the purposes of sentencing.
33As I have stated, your subsequent court appearances are relevant when assessing your rehabilitation prospects, although in that regard, I note in your favour none of those offences occurred subsequently to the date of your offending before me.
34Ms Torres, who appeared on your behalf, provided a helpful written outline of submissions and addressed those during the course of your plea hearing.
35Ms Torres outlined your offending on this occasion occurred in a background to your ice and Xanax use at that time. You recalled going to the house and wanting Xanax but you did not recall wanting or getting any money from your victim. You have not had any similar issues with the victim since and no other problems. She described your offending as an unfortunate escalation due to your desire and need for Xanax. There was some suggestion that you had given money to Mr Mclean previously for Xanax that had not been provided.
36You are, as I have said, 34 at time of sentence and currently live at home with your father and younger brother.
37Ms Torres referred to your attempts at rehabilitation since being bailed in February 2014.
38Since that time you had engaged with the First Step Program, a specialised alcohol, drug and mental health facility. You had been prescribed an opiate substitution therapy (Suboxone) and prescribed antipsychotic medication (Seroquel).
39Attached to Ms Torres' outline of submissions was a report from Dr Peter Wright, First Step Program, dated 11 September 2014. He confirmed you had attended that service for treatment for opiate dependence and drug induced psychosis. You re-engaged on the last occasion on 20 February 2014, which I note was shortly after your release on bail. You have had, he described, variable compliance with opiate substitution therapy since that time, and as a result you were prescribed Suboxone, Seroquel and Diazepam for management of your fluctuating psychosis.
40You had also been referred for supportive psychotherapy around your drug use and also unresolved grief regarding your mother's death. In his opinion, you prognosis was guarded due to the length and scope of your drug abuse and your increasing age. In Dr Wright's opinion, any sustained and systematic inducements to stay engaged with and focused upon both psychological and pharmaceutical therapies would greatly improve your functioning in both the short and long term future.
41Ms Torres submitted that report supported you had made some progress towards your rehabilitation since release on bail, and I agree that would appear to be consistent with the report of Dr Wright. I note, however, Dr Wright is cautious about your rehabilitation prospects, given your entrenched drug use history. He was of the opinion there should be further psychological and pharmaceutical therapies provided to you to improve your functioning in the future and therefore, I assume, to reduce your risk of re-offending.
42Ultimately, Ms Torres submitted you had now at least commenced attempts at rehabilitation by engaging with the First Step Program to which I have referred. She submitted that this year had "gone a lot better" for you than previous years. You were still living in the same area where this incident occurred, however, there had not been any further incidents with the victim.
43Regarding your rehabilitation prospects, I have some concerns, particularly in light of the conclusion reached by Dr Wright, who has seen you on a fairly regular basis since February this year. Obviously your rehabilitation prospects will improve with ongoing counselling, but ultimately it is going to be a matter for you. Quite simply, you are old enough to know that if you do not address your drug issues you are going to keep coming back to court and serving more and more time in gaol. In the end, it is up to you.
44Ms Torres submitted that I should consider a disposition which involved declaration of time served in custody for this offending (250 days), together with the imposition of a community corrections order.
45The prosecutor submitted such a disposition would be within the range of appropriate dispositions.
46Despite the reservations I have regarding your likely compliance with the community corrections order, given your previous history of breaching same, I acceded to Ms Torres' request to be assessed for your suitability or otherwise for a community corrections order. The matter was adjourned to today's date to enable that to occur.
47I subsequently received a report from Ms van der Westhuysen, Community Corrections Officer, dated 19 November 2014.
48You have been assessed as a moderate risk of re-offending. You are suitable for a community corrections order with a number of conditions recommended, and you signed a document consenting to the making of the order if I thought such was appropriate.
49As well as the matters personal to you, including your guarded prospects of rehabilitation as I find them to be, I must also consider matters such as general deterrence which is of importance in a case such as this.
50There is also a need for specific deterrence to be reflected in the sentence in that you have an extensive prior criminal history, not for the offence of robbery, however, for offences including armed robbery and other dishonesty matters.
51I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending, and this still concerns me.
52There were no victim impact statements before me and I discussed this with your counsel, given the changed basis on which the prosecution now puts its case. I make no further comment about the effects upon Mr Mclean of your offending, other than I was advised by the prosecutor who spoke to the informant during the course of your plea hearing, and it appears Mr O'Neil does not have any permanent injury as a result of your offending.
53I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
54Ultimately, I am of the opinion, in all the circumstances of this case I can sentence you in the way being urged by Ms Torres. In that regard, I will tell you what I am proposing and then I need to explain a little bit to you, and you have got to understand what this is because ultimately you have to consent to the order.
55Now just listen nice and carefully. I intend to sentence you to a term of imprisonment of 250 days, which is the time you have already served. No extra time. However you are now, as of today, subject to a community corrections order for 2 years from today's date. I think that is a big ask for you, but that is what your counsel wanted. I have thought about it, you are suitable, I will give you a chance.
56I need to tell you a little bit about it because if you come back before me for breaching this order, I have to re-sentence you for this charge, you will do more time. Simple. All right?
57OFFENDER: I understand, Your Honour.
58HER HONOUR: There is nowhere else, that is all that is left, gaol. So I have to tell you a bit about the order so that you understand what your obligations are under it, because if you breach the order you come back before me,not another judge, and I have to re-sentence you on this charge of robbery. You will do more than 250 days.
59Now there are core conditions that attach to the order. They apply to everybody, they also apply to you. These conditions are as follows:
·You must not commit another offence, whether in or outside Victoria, during the period of the order, that is two years, punishable by imprisonment. So you have got to be careful. Driving whilst disqualified can carry with it a gaol term. You have got to be careful. There can be all sorts of things that could breach this order, so you have just got to be careful. It does not mean just a robbery or an armed robbery, it can be anything that might bring you back before me.
·You must report to and receive visits from the Secretary to the Department of Justice, which for your purposes means a corrections officer, during the period of the order, that is two years. Do what they tell you to do or you will breach the order.
·You must report to the community corrections centre at Sunshine. I believe this appointment was made with you, so you have got to be there. Do not be late. Report to the community corrections centre at Sunshine, within two clear days from today, specifically by 24 November. That is next Monday. You have an appointment at 11.00am, do not forget. If you do not attend, breach the order, back before me, I re-sentence, you go back to gaol. 11.00 o'clock is the appointment time.
·You must notify the Secretary or his or her nominee, which means a community corrections officer, of any change of address or employment within two days after your change. Tell them you have moved address. You can move address, let them know.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee. In other words, you cannot leave Victoria unless a corrections officer tells you you can go. Not even on a holiday. Keep it in mind.
·You must comply with any direction given by the Secretary, i.e. for your purpose a corrections officer, to ensure you comply with the order. Do what you are told by a corrections officer otherwise you will breach the order.
60Now there are a number of other conditions that are attached to the order and they apply to you. I do not intend to impose unpaid community work. I think you are lucky, but I think you are going to have enough trouble complying. But this is what your counsel says you wanted. I am giving you a chance on it because I also think I can give you that chance, given you have spent 250 days in custody. So be careful.
·You do not have to do any community work, but you will be under the supervision of a community corrections officer for 2 years.
·You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed. So do what they tell you about drugs.
·You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as they tell you to do. You have got to do it.
·You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by a corrections officer.
61Now taking all that into account, I can only impose that order if you agree to it being imposed. The difficulty, of course, I know, is that if you do not agree to that, I have to come up with another sentence. You know what that means. But I have to ask you, you have to consent to that order.
62But before you make a decision about that, I have to tell you something else about it. I can only impose a community corrections order if you are also aware of these other things. I have to advise you that if you contravene or breach that order by committing further offences, you can be charged, and a sentence of imprisonment is one of the options that can be imposed for the breach. So you get charged for breaching, but you are then also re-sentenced for the offence before me, so it is sort of double-whammy, two lots of sentences, you see.
63So you have to be extra careful for the next two years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be re-sentenced on that charge, on the charge before me. You have to be extra careful.
64I have to also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, which means a community corrections officer, as part of this order, a fine can be imposed. So you can be fined.
65So are you aware of all of that?
66OFFENDER: Yes, I am.
67HER HONOUR: Do you want to speak to your counsel about it? DO you want to speak to Ms Torres?
68OFFENDER: No, I clearly understand, Your Honour.
69HER HONOUR: You do. So do you consent to that order being made, the community corrections ‑ ‑ ‑
70OFFENDER: Yes, I do, Your Honour.
71HER HONOUR: Nice loud voice.
72OFFENDER: Yes, I do, Your Honour.
73HER HONOUR: Right. That is being recorded.
74So now I sentence you as follows:
75On Charge 1 you are convicted to 250 days imprisonment, which represents the total number of days you have spent in custody for this offence, and therefore it is time served, effectively. There is no further time, - well today at least, Ms Torres. Then you are subject from today, which is 21 November 2014, to a community corrections order for a period of 2 years. It will have all those conditions attached to it that I just discussed with you.
76Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict, in other words, if you had pleaded not guilty and a jury had found you guilty of it, I would have sentenced you to 3 years' gaol and ordered a non-parole period of 2 years.
77The prosecution made application for compensation in the sum of $250 payable to Mr O'Neil. That was not opposed by counsel on your behalf. I make the order in the terms sought.
78Were there any other orders?
79MS ELLIS: No, Your Honour.
80HER HONOUR: I do not have any. No. Have I missed anything? Anything anyone is unclear about?
81MS ELLIS: Thank you, Your Honour.
82HER HONOUR: Right. Ms Jackson my associate is going to walk down to see you in a minute, Mr Angelov, and your counsel will probably go with her. You have to sign consenting to that order, all right?
83OFFENDER: Okay, Your Honour.
84HER HONOUR: So she is on her way. It is being printed out now. It will give you the time and place for your appointment. Do not be late. I do not want to see you again. You are a bit risky on this order, but it is up to you. I am giving you a chance. We will see what you do with it.
85OFFENDER: Thank you.
86MS TORRES: If Your Honour pleases. Thank you.
87HER HONOUR: Yes, all right. You can wander back and help him.
88Right. All clear?
89MS TORRES: Yes, Your Honour.
90MS ELLIS: As Your Honour pleases.
91HER HONOUR: All right. I have signed that, the orders have come back. You can come out, Mr Angelov. That is it. Anything else? Thank you for your assistance.
92COUNSEL: Thank you, Your Honour.
93HER HONOUR: Thank you.
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