Director of Public Prosecutions v Butkovic
[2023] ACTSC 62
•27 March 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Butkovic |
Citation: | [2023] ACTSC 62 |
Hearing Date: | 27 March 2023 |
DecisionDate: | 27 March 2023 |
Before: | Mossop J |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offences of aggravated robbery in company while armed with offensive weapon – three other co-offenders previously sentenced by the court – purpose of robbery to enforce extra-legal drug debt – offender previously subject to intensive corrections order for trafficking offences – application of parity principles – prospects of rehabilitation – sentence backdated and suspended upon entry into good behaviour obligations |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 13(4)(g) Public Health Act 1997 (ACT) |
Cases Cited: | DPP v Trewartha [2023] ACTSC 13 R v Haddara [2022] ACTSC 224 R v Le Clair; R v Yeboah [2016] ACTSC 126 |
Parties: | Director of Public Prosecutions Kyle Joseph Butkovic ( Offender) |
Representation: | Counsel M Howe ( DPP) J Sabharwal ( Offender) |
| Solicitors Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 28 of 2022 SCC 27 of 2022 |
MOSSOP J:
Introduction
The offender has pleaded guilty to one count of aggravated robbery in the company of four others and while armed with an offensive weapon. Three of the five offenders have previously been sentenced by this court: R v Hanson [2022] ACTSC 107; R v Haddara [2022] ACTSC 224 and DPP v Trewartha [2023] ACTSC 13. The other offender remains unidentified.
The offender has also been charged with failing to comply with a direction under s 120 of the Public Health Act 1997 (ACT). The Director of Public Prosecutions (DPP) agreed that upon sentencing for the aggravated robbery, this charge should be dismissed.
Facts
The facts are agreed and are in summary below.
On 23 and 24 August 2021 the victim received numerous calls and text messages from Mr Haddara demanding the payment of an alleged debt. On 26 August 2021 Jennifer Hanson lured the victim to her house under false pretences in order to aid Mr Haddara in recovering the debt.
A short time after 6:30pm, Mr Butkovic and three others (Omar Haddara, Jake Trewartha and a fourth unidentified male) arrived at Ms Hanson’s house. The victim attempted to leave through the back door but was grabbed by the males and made to sit on a couch.
The offender was not wearing a mask and was armed with a boxcutter. Mr Trewartha was armed with a baseball bat. The members of the group commenced intimidating the victim and demanded that he pay the outstanding debt. The victim proceeded to transfer the funds into the account of the offender. He first made two transfers of $500 and $300 respectively. He attempted to make a third transfer but was unsuccessful. The unidentified male then came out of the kitchen and threw a small object at the victim’s face. He then struck the victim multiple times in the head. Mr Trewartha then struck him with the baseball bat. As Mr Trewartha went to strike him again, Mr Haddara pushed Mr Trewartha so that the bat only made glancing contact with the victim. Mr Haddara said words to the effect of “stop”, “no more” and “we don’t want a home invasion”.
The victim then transferred $2,515.60 to the offender’s account. The offender told the victim to transfer all funds from the victim’s account to his account, to which the victim asked if he could keep $700 for rent. The offender permitted the victim this indulgence.
In total, the victim transferred $3,315.60 to the offender’s account.
Following this, Mr Trewartha again assaulted the victim and said words to the effect of “let’s just put him in the boot”. Mr Haddara again counselled against this course. The group left shortly afterwards.
When the offenders left, they told the victim not to go to hospital or report the matter to police.
The day after the robbery, the victim contacted his bank to have the payments reversed on the basis that he had been robbed. The first two payments were made via “PayID” and so could not be reversed. However, the money the subject of the third transaction was ultimately returned to the victim’s account.
Objective seriousness
The offending occurred both in company and involved the possession of weapons. It was not sophisticated but it was clearly planned, the victim having been lured to the premises by Ms Hansen. Actual violence was inflicted upon the victim, resulting in injuries. The incident was not brief and took enough time for the various financial transactions to be arranged. I accept the submission of the Director that the offending was in the mid-range of objective seriousness for this type of offence.
So far as the offender’s involvement in that offending is concerned, he was in possession of an offensive weapon and was the recipient of the funds that were transferred from the victim’s bank account. He did not engage in actual violence. Although the roles of the three identified offenders were slightly different, I accept the submission that his offending cannot be significantly distinguished from that of Mr Haddara and Mr Trewartha.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report dated 10 October 2022, a letter from his current employer, a letter from a psychologist who he has been seeing recently and in oral evidence given by his father.
The offender is 30 years old. He is single. He is the father of a child from a previous relationship but does not currently have contact with that child. He has described his upbringing as positive and safe. In 2017 his brother died, which had a significant emotional impact on him. He reported good relationships with his sisters and parents. His mother spoke positively of a change she noticed in her son since his relocation interstate to reside with his parents pursuant to bail conditions.
He completed Year 10 at school. He has worked in various trade positions although has not completed any apprenticeships. He has been employed by his sister’s partner as a casual tiler. This has averaged one to two days per week depending upon the level of work. He also currently is completing community service work as a result of a New South Wales court order.
He reported that he had a history of illicit substance use since turning 18, which has escalated following the death of his brother in 2017. At 21 he began selling drugs to his friends. He eventually progressed to selling drugs to the wider public, which led to him being criminally charged.
He reported that at the time of the offence, he was consuming approximately 12 standard drinks each week, using illegally obtained prescription medication every couple of days as well as using cocaine once a week. He has reported experiencing withdrawal symptoms when remanded in custody. Since being released in January 2022 he claimed to have abstained from abuse of illegally obtained prescription medication and illicit substances. This was corroborated by his father and I accept it to be the case.
The author of the pre-sentence report has noted that the offender appears to focus on the negative impact of the offence upon his life as opposed to acknowledging responsibility over his role in the offence. He attributed the decision to being involved in the offence to being in a “negative headspace” brought about from the use of illegally obtained prescribed medication and alcohol, as well as the negative influence of others.
The offender was noted by the author as appearing to express empathy towards the victim, but also as querying whether he had been incorrectly labelled as one of the persons who committed assault when he was alleged only to be a bystander.
He was assessed as not suitable for a community service work condition or an Intensive Correction Order (ICO) because he resides in New South Wales.
Criminal history
The offender has a history of minor driving offences the latest of which occurred in 2013. In 2019 he was convicted for two counts of trafficking a controlled drug and three counts of possession of a declared substance. This offending occurred in 2017. He was sentenced to 19 months in custody, to be served by way of an ICO. Multiple breaches of his ICO resulted in its cancellation and he was required to serve the remainder of his sentence in custody. However, within 30 days of imprisonment, the offender applied and was granted a reinstatement of his ICO. However, the offender continued to demonstrate poor compliance with his ICO. He was subject to breach action but did complete the ICO. He also committed offences of assault and possession of weapon with intent in 2018 and further minor drug possession offences in 2019 and 2020.
Subsequent to the current offending and while he was released on bail the offender committed the New South Wales offence of disqualified driving as a repeat offender and was given a community corrections order with 80 hours of community service work.
Plea of guilty
The offender entered a plea of guilty after receipt of the evidence given by co-offender Hanson at her sentence proceedings. At the time of the plea the matter had been allocated a trial date and a criminal case conference had been undertaken. A discount of 10 percent is appropriate in the circumstances.
Time in custody
Following his arrest, the offender spent 147 days in custody and has now been released on bail for 14 months.
Consideration
Counsel for the DPP filed written submissions which were unusually but not inappropriately adopted by counsel for the offender. The offending was motivated by a drug debt. It involved the infliction of violence and the threat of violence. The victim suffered bruising and tenderness as a result of the actions of the offenders. He was very clearly in a state of fear for his own safety. The nature of the offending was such that it is likely to have ongoing psychological effects on the victim although the extent of those effects cannot be identified.
Plainly enough general deterrence, punishment, denunciation and recognition of harm done to the victim in the community are all significant sentencing considerations. For somebody whose offending arises out of involvement in the world of illicit drug use, rehabilitation of the offender is a very significant sentencing consideration. The community’s interests will clearly be served by successful rehabilitation of such an offender.
The sentences imposed upon Mr Haddara and Mr Trewartha were as follows. Mr Haddara received a sentence of 31 months’ imprisonment, reduced from 36 months’ on account of the plea of guilty, to be served by intensive correction with 400 hours of community service and a fine of $7500. Mr Trewartha received a sentence of 27 months reduced from 30 months on account of the plea of guilty which was suspended after serving 344 days in custody. Parity as between Mr Haddara and Mr Trewartha was a significant consideration in fixing Mr Trewartha’s sentence, Baker J saying “I consider that the offender would have a justifiable sense of grievance if the sentence to be imposed included any further period of full-time custody”: DPP v Trewartha at [57].
The ultimate submission made by the prosecution referred to the sentences imposed upon Mr Haddara and Mr Trewartha and said that the progress made by the offender towards his rehabilitation “would come to a grinding halt if the offender were to return to custody in the Territory, likely surrounded by negative peers [from] whom he has now distanced himself”.
There is an obvious tension between the different sentencing purposes. Deterrence from extra-legal enforcement of drug debts is very important goal: R v Le Clair; R v Yeboah [2016] ACTSC 126 at [62] and R v Haddara [2022] ACTSC 224 at [54]. A disposition which does not involve any further time in custody might be seen as inadequately addressing the sentencing purposes of the denunciation, general and specific deterrence, punishment and recognition of harm done to the victim and the community. On the other hand, a sentence which requires the offender to return to custody will see him reintroduced to the antisocial associates from which he has distanced himself in the 14 months since his release from custody. In this case, in my view the appropriate outcome is one which emphasises the potential for rehabilitation by giving the offender an opportunity to continue down a path which avoids involvement with illicit drug use. Having regard to the offender’s poor history with compliance with supervision requirements and his further driving offence committed during his period on bail, such a disposition necessarily involves the potential for failure either through further offending or a failure to comply with the requirements of supervision. Such failure may lead to the conclusion that the only way to address his offending in a way that gives adequate effect to the purposes of sentencing is through a further period in custody. However, at present, the matter can be disposed of by a sentence which gives him an opportunity to complete his sentence without a return to custody.
The sentence imposed will be backdated to take into account 147 days spent in custody but suspended immediately subject to a good behaviour order for the balance of the term of imprisonment. The inclusion of a probation condition means that the supervising officer has the capacity to give directions that cover the full range of matters addressed in the examples to s 13(4)(g) of the Crimes (Sentencing) Act 2005 (ACT): see the example to the definition of “probation condition” in the Dictionary of the Crimes (Sentencing) Act 2005 (ACT). That is sufficient to permit the supervising officer to do anything that is necessary to ensure that the offender remains free of illicit drugs and undertakes any treatment required to avoid him going down that path again. It is therefore unnecessary to spell out as conditions of the good behaviour order things such as supplying urine samples when directed or undertaking medical or other treatment or programs.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC 10095/21) the offender is convicted and sentenced to imprisonment for 30 months (reduced from 33 months on account of the plea of guilty) commencing on 31 October 2022 and ending on 30 April 2025.
2. The sentence is to be suspended after the offender has served 147 days imprisonment, which period has been fully served, upon giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term of imprisonment with the additional condition that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person for the period of the order or such lesser period as the Director-General determines.
3. The charge of failing to comply with a direction without reasonable excuse (CC 10097/21) is dismissed.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop Associate: Date: 20 April 2023 |
4
2