Director of Public Prosecutions v Cagalj
[2019] VCC 2150
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-19-01537
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CAGALJ |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 December 2019 |
| DATE OF SENTENCE: | 17 December 2019 |
| CASE MAY BE CITED AS: | DPP v Cagalj |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2150 |
REASONS FOR SENTENCE
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| Subject | Criminal Law |
| Catchwords: | Plea guilty |
| Legislation Cited: | Crimes Act 1958 (Vic) s.76, s.197, Family Violence Protection Act 2008 (Vic) s.37(2), s.123(2), Bail Act 1977 (Vic) s.30A. |
| Cases Cited: | Farah v The Queen [2009] VSCA 300, De Simoni (1981) 147 CLR 383 |
| Sentence: | Total Effective Sentence of 12 months’ and 250 days’ imprisonment (with 250 days’ counted as time served) combined with Community Corrections Order. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | The Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr B. Sonnet | Stary Norton Halphen |
HIS HONOUR:
1Mr Cagalj is now aged 41, having been born on 12 June 1978. These circumstances arose when he was 40. The three charges under the indictment to which Mr Cagalj pleaded guilty before this Court on
3 December 2019 are, firstly, a charge of burglary committed on 22 December 2018 when, as demonstrated by the photographs, in particular Photograph 197, he kicked the door in of the premises where he committed the burglary.2The culpability in this matter is aggravated by the fact that Mr Cagalj has a number of similar, prior offences, which I will go into in due course. The seriousness of the charge of burglary is demonstrated by the fact that the maximum penalty prescribed by Parliament is 10 years.
3The second charge on the indictment is one of damage property. Again, the culpability in this matter is aggravated by his priors. Essentially the damage was caused by way of him trashing the unit. For example, he put salt in the drawers, in particular, caused embarrassment to (name given) by graffiti on the external walls (see photos 205 and 245) and by the manner in which he placed and dealt with private objects of hers, which are set out at photo 252.
4The third charge is one of assault. When (name given) returned after being out with friends at approximately 2.00am Mr Cagalj was present in her home. She was pushed, hair pulled, eyes gouged, she had the shock of getting into the home, seeing it trashed and then being confronted by him, together with his verbal abuse. As I discussed with counsel earlier, the assaults, while minor in themselves from a physical point of view, were quite extended in the sense that they happened over a period of some five hours, and it was not until 7.00am when Mr Cagalj had fallen asleep that (name given) was able to call for assistance.
5The Court has also been asked, pursuant to s.145 of the Criminal Procedure Act, to take into account six summary charges, being breaches that occurred subsequently. Firstly, as to the first charge, a breach of a Family Violence Notice, then three charges of a breach of a Family Violence Protection Order, and then two charges of offences committed while on bail and therefore breaches of conditions.
6A breach of the FVN is a breach under s.37(2) of the Family Violence Protection Act, which brings within it a maximum penalty of two years and/or 240 penalty units or both. The breach of the FVPO is an offence against s.123(2) of such Act, which equally brings with it a maximum sentence of two years and/or 240 penalty units or both, and the bail charges are laid under s.30A of the Bail Act 30A(1), for which a maximum penalty of three months and/or 30 penalty units applies.
7Those circumstances are quite different in type. I accept that essentially the first offence (summary charge 3), which is the breach of the notice, was of a technical nature even though it was a clear breach. It is in fact ringing to say sorry for his offences that had occurred in the December, and that was on 23 December. However, the offences thereafter are a much more serious type, especially the three committed on 13 April. The first (summary charge 7) involved an attendance at the premises at 11.00am. At that time he was still making crude remarks to (name given). He was essentially threatening her in the sense of he did not mind going to gaol or who he hurt. He attended at the premises for some 30 minutes and was clearly drug affected.
8That same day was a further call over the phone advising (name given) that, 'You could expect a visit'. That took place at 7.30am (summary charge 8), and then at again at 9.00am, he attended (summary charge 9). Under threat of knocking down the door or subsequently making a suicide threat, he was let into the premises, again in clear breach of the orders put in place to protect (name given). The circumstances are that to date pre-sentence detention, what is the current - - -?
9MR SONNET: 250.
10HIS HONOUR: 250. There was at one stage an order sought insofar as 464ZF but that is not pursued. Is that right, Madam Prosecutor, or is it?
11MS MALOBABIC: Not pursued, Your Honour.
12HIS HONOUR: Not pursued. He was charged in April 2019 and a plea was indicated in August of 2019 and, as is clear, has come before the Court quite quickly. Today has been tendered as Exhibit D, the positive Community Corrections Order obtained subsequent to the plea hearing and dated 3 December 2019, and I thank Ms Louch for that report. It has been of much assistance to the Court.
13In addition today was tendered two further exhibits, Exhibit 10, which was the letter dated 16 November from the Salvation Army, indicating the program undertaken, and further, the matters referred to as to actions taken since these crimes while in gaol by Mr Sonnet, which were tendered as
Exhibit 11, being the four negative results but for approved medication, which were recorded as the dates that I have already indicated and were recorded by my associate.14On the date of this plea (name given) was in Court, and is in Court again today. The prosecution summary was read to the Court and became Exhibit A and
Mr Sonnet indicated to the Court that he accepted the facts as set out therein were the facts upon which I am to sentence Mr Cagalj.15Insofar as the victim impact statement I have re-read that document. The bruising to the body and the eye is clearly obvious, in particular, if one looks at photographs 180 to 185. The damage to the home, in particular, the ransacking, is quite obvious, if one looks at photographs 205 and 226 the graffiti which so upset (name given), as she sets out in the victim impact statement, which was on the outside of the premises and therefore available for anyone else to see, is set out at photographs 189 and 245, and the interference with her personal items which are set out at photographs 232, which caused her family embarrassment, I also take into account.
16I take into account her comments, which I have read closely. Given the confronting nature of these crimes, given the state that Mr Cagalj was in, it was not unreasonable that she, on both occasions, felt that there was a risk to her life.
17I am not fully aware of the basis behind the last statement that (name given) makes in her victim impact statement, but I note she says, 'He broke my heart'. I understand there was a relationship at some stage. Part of the shock, I suppose, that she had to endure as a result of these crimes was that she had been a close family and trusted friend, and in a relationship with Mr Cagalj, and had never previously been treated in this way by him.
18As she said in the medical material, perused by the Court, to her doctor,
Dr Van Berg, Mr Cagalj was in a delusional state. She may well have seen something like that before, but never had such been directed at her. On the second occasion when he came to the premises she was particularly scared as to the threat made to her to kill. He is not charged for that, but one understands the situation that (name given) was in. The symptomology reported by the doctor of insomnia and post-traumatic stress disorder, the need for psychotherapy in regard to these crimes is totally reasonable. The one positive is that with such medical assistance things seem to be getting a lot better.19The prosecutor raised the question of the objective gravity of these crimes, especially given the prior matters. She also stressed that this was an assault which took place in family violence circumstances. She submitted to the Court that the second round of offending was very concerning, especially the way that (name given) was treated. She asked the Court to be somewhat guarded about his rehabilitation, that even while being treated between these offences, that is after 22 December 2018, despite what seemed to be positive treatment, he then again succumbed to this addiction. It seemed to me a responsible submission by the prosecution to the Court that, with the positive Community Corrections Order report tendered to the Court, that the submission of Mr Sonnet is within the range of sentences appropriate.
20However, as I indicated to Mr Sonnet when I called for a Community Corrections Order report, that is a matter that I had not decided upon, and I would decide upon today. Mr Sonnet tendered as Exhibit 1 the written documents and spoke on behalf of Mr Cagalj. He did not in any way cavil with the gravity of these crimes. However, did submit that I should take the view that this was lower end criminality. I indicated to Mr Sonnet that I disagreed. While I am particularly conscious, and perhaps more conscious than at other times, of the need to take account of De Simoni (1981) 147 CLR 383, and in particular, the comments in the recent case of the Court of Appeal in Farah v The Queen [2009] VSCA 300, it seemed to me that it is appropriate that I indicate to Mr Sonnet that insofar as the assault was concerned, circumstances surrounding that assault, while not amounting to a situation where I sentence for a higher offence, are still circumstances that must be taken into account. This is a situation where a person has come back to her home at 2 am in the morning after innocently enjoying herself with her friends, to be confronted by a smashed in front door and then by Mr Cagalj in the premises and to be assaulted, albeit not, fortunately, too badly from a physical sense, but as I have already indicated, one fully understands the emotional reaction to such.
21Insofar as Mr Sonnet's submission was concerned he asked me to accept that his client was now fully aware of the distress that he caused to (name given), a person who had previously been his trusted friend, and that he was genuinely sorry for this. There was, it seemed to me appropriate, no excuse put. However, an explanation was put as to the impact of drugs in this matter. The combination of such drugs with the, as described by Mr Sonnet as an irrational fear, related to a past relationship of which he had no right to have any such fear, do give an explanation.
22Mr Cagalj accepts that he was acting in a manner induced by drugs whereby he was delusional, whereby he may well have been affected by some sort of psychosis. Such was not put in any way by way of mitigation in a Verdins sense but as an explanation for why a person who had been so well treated by (name given) in the past, should act in such a manner to her.
23I was reminded of the need for a sentence which recognises totality in regard to both 22 December 2018, and 13 April 2019, the circumstances all occurring on the same day, essentially in the same circumstances. We discussed Mr Cagalj’s concerning history. He has, unfortunately, had a difficult history and significant history since the age of 18. One of the matters in which he was sentenced was of particular concern to me, and related to the sentence before Judge Wilmoth of this Court, Exhibit 2, which was a sentence recorded in September 2006 by Her Honour.
24In that particular decision there are concerning similarities. In that instance
Mr Cagalj was heroin affected and committed crimes upon a past girlfriend. In that instance the assaults were far more serious than were inflicted in this case. The victim in that matter was punched and kicked, in particular when she was on the ground. Her Honour noted the issues by way of the dysfunctional background that Mr Cagalj had experienced, the early addiction and problems with drugs from an early age, and the witnessing of abusive relationships in regard to his mother and the experiencing of violence upon him.25Her Honour noted the emotional trauma that had been caused to the victim in that matter. It seemed to me not so different, by way of comparison, to what has occurred in this matter. Her Honour made this comment at [23]: 'It would appear that you may now have sufficient insight into your problems and propensity for substance addiction to be more successful in your rehabilitation than you have been in the past'. Unfortunately that did not occur. Even though you were given a sentence for those serious offences of 27 months with a minimum of 12 months, that hope dashed.
26Given that you could not have been out of gaol much before September 2007, given the sentence, within six to eight months you were recording a further burglary sentence for which you got six months' gaol in March 2008. You have a further burglary in August 2008 when you get another four months' gaol. You then, in 2010, are convicted of another burglary offence for which you get a Community Corrections Order. In 2011 a further burglary offence of which you get three months' gaol and also one of the offences is a breach of the earlier Community Corrections Order. You have a further Community Corrections Order imposed in November of 13 and that seems to have passed without a problem, and subsequently get a further CCO in addition to 25 days' gaol for offences in July of 16 of attempted burglary and intentional damage of property. Attached to that 25 day period of imprisonment was a CCO of 18 months.
27I accept the proposition put by Mr Sonnet that all of those burglaries, were associated with an ongoing and florid drug addiction. However, fortunately, as has been put, from that sentence in July of 16 there has been recorded no offending until this offending in December 2018 and, indeed, you completed that CCO of 18 months. Unfortunately, given the particular circumstances that occurred with your brother, and the results of both of you participating in drugs, together, you unfortunately went on, thereafter, a bender which has led to these crimes.
28Insofar as the plea on your behalf, if I refer to p.5 of that plea, the following matters were put to the Court. Mr Sonnet referred to, and has again referred to today, your progress in gaol, the support that you have from your mother, the support that you have from Ms Pocock, your ongoing relationship, the fact that despite these crimes the relationship with your mother and the victim still continues today. It seems, and I have read Ms Pocock's letter, her support for you is ongoing, despite knowing of the crimes that I have rehearsed. You have done a series of courses, the most recent being tendered today, and the counselling sessions have been confirmed, in addition were the negative results as to the urine testing.
29Mr Sonnet put that with your association with Ms Pocock, with your ongoing family support, with your hopefully, finally, realisation of your life, that there is an alternative for you apart from periods of gaol. This has been a difficult consideration for me. The report itself received from the Community Corrections notes itself the matters that I have had to consider. The first part of the comment says this: “Mr Cagalj has had prior involvement with the Community Corrections Service, having been subject to multiple previous community based dispositions. He has a high risk of general reoffending. His current treatment needs appear primarily to relate to substance use and he's aware of how to access mental health services.” It was recommended that that shouldn't be made part of any order. It does not seem to me that is appropriate. It seems to me that that treatment of a mental health nature, should be mandated given your high risk. It also suggested you should undertake men's behaviour change programs.
30The balancing in this case has been exquisite. I am concerned about appropriate punishment being passed to reflect the community's revulsion for your actions. To commit these crimes upon a person who has been so kind to you, not only must now personally revolt you, but from the community's point of view is also a revolting act and series of acts. Your actions, especially given your prior crimes, call for a sentence which effects general and specific deterrence. However, balanced against that is the community interest, hopefully, to ensure that you no longer commit crime.
31Mr Cagalj, the community has invested in you, over time, a huge amount of resources which has not been to date successful. It has been a very difficult consideration for me to determine whether any further such resources should be expended upon you. However, given the positive report, given the further submissions I have heard this morning, in particular, the views of the Crown that in all the circumstances of this case insofar as it directly relates by way of explanation to you being afflicted again directly as a result of what occurred with your brother, the depositions themselves which were detailed by Mr Sonnet, pointing out your drug state at the time, and perhaps as an indication of how drugged you were, the fact that you carried out these actions in such a dastardly manner against a person who can only be described as your friend. It has not been an easy process.
32However, in the end I have decided to accept the submission put by Mr Sonnet. I intend to impose upon you an aggregate sentence under s.40 in regard to the three crimes in the indictment, that sentence will, be for a period of 12 months. The effect of that means that the 250 days that you have served to date will, pursuant to the Act, have been served but, in addition, you will serve 12 months on top of that, and once released you will be placed on a Community Corrections Order with the particular orders that I have indicated.
33I do not intend to provide for a work order. What is fundamentally important in regard to you is that you must save yourself from the effects of drugs upon your life. Mr Sonnet, it is necessary for you to assure me that you have explained what this means to your client. Can I make it very clear, and I do not know how many chances he has had, but it is from this Court, you come back in front of me, Mr Cagalj, having further breached this order and you will not be getting any further chances. Yes, Mr Sonnet.
34MR SONNET: Yes, I am happy to explain that order to Mr Cagalj. Can Your Honour just go through the sentences?
35HIS HONOUR: Well, it is going to be an aggregate sentence.
36MR SONNET: Yes.
37HIS HONOUR: Of 12 months with a CCO of two years after he completes the sentence.
38MR SONNET: Yes.
39HIS HONOUR: In regard to the summary matters I am going to sentence him to the first one of 10 penalty units, to the second one to a sentence of six months' gaol, to the third one, to a sentence of two months' gaol, and the fourth one, which involves, I think, two breaches of the bail, to a matter of six months' gaol, and I think I have got them all, Madam Prosecutor, have I? And I was going to order that two months of each of the six month sentences - sorry, I am going to make an order that none of those orders be cumulative but they be served concurrently.
40Is it four or five summary offences, Madam Prosecutor?
41MS MALOBABIC: Six, Your Honour.
42HIS HONOUR: Yes, I am sorry, I have missed the last two, which are the bail matters.
43MS MALOBABIC: Yes, Your Honour.
44HIS HONOUR: Yes, and I will just do five days on each of those.
45MS MALOBABIC: Thank you, Your Honour. Your Honour, if I can just clarify that. I understood the sentence. Is it 12 months after the deduction of 250 days?
46HIS HONOUR: There is no deduction. It is the manner in which Mr Sonnet put the matter.
47MS MALOBABIC: Thank you, Your Honour. Thank you, Your Honour.
48HIS HONOUR: The Act provides for - - -
49MR SONNET: A combination.
50HIS HONOUR: A combination sentence.
51MS MALOBABIC: Thank you, Your Honour.
52HIS HONOUR: Which can be a maximum of 12 months and a Community Corrections Order.
53MS MALOBABIC: Thank you, Your Honour.
54HIS HONOUR: Without - what's the actual provision? Forty-four, is it not?
55MR SONNET: Section 44(1).
56MS MALOBABIC: yes, Your Honour.
57MR SONNET: Can I indicate, Your Honour, and I understand the intent of Your Honour's - - -
58HIS HONOUR: I might stand down. If your client wants a straight sentence I am happy to give it to him, because there is not much point putting him on a situation he is not going to be able to comply.
59MR SONNET: Yes. I am happy to speak to him very briefly.
60HIS HONOUR: Yes, I will stand down.
61MR SONNET: Thank you.
62(At 11.53 am His Honour left the Bench.)
63HIS HONOUR: Yes, Mr Sonnet.
64MR SONNET: Thank you for that time, Your Honour. A couple of things. Perhaps if we can just check or double check the individual sentences that were fixed for the summary charges, and I think the Crown and myself have agreed, if we can just go through them quickly with Your Honour.
65HIS HONOUR: Ten penalty units on the first one.
66MR SONNET: Charge 3, yes.
67HIS HONOUR: Well, I am - all right.
68MR SONNET: Yes.
69HIS HONOUR: I do not know whether I identified them like that, did I? Ten penalty units on that. Six months - let me take it this way. So that is the first phone call which we agreed was low culpability, right?
70MR SONNET: Yes.
71MS MALOBABIC: yes, Your Honour.
72HIS HONOUR: Then the offending by way of the first breach of the order, six months.
73MS MALOBABIC: So that would be Charge - - -
74MR SONNET: Seven.
75MS MALOBABIC: No, that would be Charge 5.
76HIS HONOUR: Wait on, Charge 3 is the first one.
77MS MALOBABIC: Yes.
78HIS HONOUR: Charge 4 is the next one, six months. Charge 5, I have only given two months because that was the short phone call. Charge 7 is the further attendance at 9 o'clock, and then eight and nine are the - no, no, that is not right, is it?
79MR SONNET: It is not right, no, Your Honour.
80HIS HONOUR: This is not right.
81MR SONNET: No.
82HIS HONOUR: Eight and nine are the breaches of the Bail Act.
83MS MALOBABIC: No, Your Honour, the charges - - -
84MR SONNET: That is Charge 4 and 5.
85MS MALOBABIC: Four and five are breaches of the Bail Act.
86HIS HONOUR: I apologise, I am sorry. Yes, I apologise. All right, so
Charge 3 is ten penalty units. That is the one, Madam Prosecutor.87MS MALOBABIC: Yes, Your Honour.
88HIS HONOUR: Let us check it, is 23 December, right?
89MS MALOBABIC: Yes, Your Honour, that is the first one.
90HIS HONOUR: All right, the two charges which contravene a condition of bail, four and five.
91MS MALOBABIC: Yes, Your Honour.
92HIS HONOUR: I have given him five days' gaol on each.
93MS MALOBABIC: Thank you, Your Honour.
94HIS HONOUR: All right. Then we go to seven.
95MS MALOBABIC: Yes, Your Honour.
96HIS HONOUR: Which is the breach.
97MR SONNET: 13 April.
98HIS HONOUR: 13 April, attending at the premises, for which I have given him six months' gaol.
99MS MALOBABIC: Thank you, Your Honour, yes.
100HIS HONOUR: Then we go to eight, which is the breach at 7.30 that night and a phone call for which I have given him two months, and then we go to nine, which is the attendance at 9 o'clock, for which I have given him six months.
101MS MALOBABIC: For six months, thank you, Your Honour.
102HIS HONOUR: I have made none of those sentences cumulative.
103MS MALOBABIC: Thank you, Your Honour.
104HIS HONOUR: In regard to the penalty of ten penalty units - - -
105MR SONNET: A stay of one month, Your Honour.
106HIS HONOUR: Well, given he has still got to serve gaol I will give him a stay of 16 months.
107MR SONNET: Well, he has alternatives, Your Honour, so perhaps that would be - - -
108HIS HONOUR: You are not - well, yes, all right, a stay of one month, all right.
109MR SONNET: Yes.
110HIS HONOUR: All right.
111MR SONNET: Now, if we can return to the indictment charges.
112HIS HONOUR: Yes. The indictment, I intend to make a joint order under s.40 so that there is an aggregate Community Corrections Order, if you could call it that, or a combined Community Corrections order for the three matters of
12 months' gaol with a consequent CCO with the terms that I have indicated, and the terms of 44 are such that:'A Court may make a Community Corrections Order and in addition to imposing a sentence only if the sum of all the terms of imprisonment be served after deduction of the period of custody that under s.18 is reckoned to be a period of imprisonment or detention already served is one year or less'.
113MR SONNET: Yes.
114HIS HONOUR: So I will make that declaration under s.18 that the 250 days is the period served to date on remand.
115MR SONNET: We hesitate to interrupt Your Honour but we certainly - both parties understand your intent. Can I indicate it this way? The most conventional way to impose this type of sentence is to impose the 12 months plus the 250 days, then make the conventional declaration. That is how it is - - -
116HIS HONOUR: I do not see how you can do that because it says, 'After deduction of any period of custody'.
117MR SONNET: As I understand the authorities, how that has been interpreted is the sentence that is imposed, then when the pre-sentence detention is declared, as long as the actual term that the prisoner then has to serve is
12 months or less - - -118HIS HONOUR: Twelve months or less.
119MR SONNET: A s.44 order is valid.
120HIS HONOUR: Well, I do not really care how we do it. That is what I intend to do. You suggest I should do it like that and you endorse that and you endorse that, Madam Prosecutor?
121MS MALOBABIC: Yes, Your Honour.
122MR SONNET: Yes. I strongly urge Your Honour to do that.
123HIS HONOUR: All right. So I therefore sentence him to a period of imprisonment of 12 months and 250 days.
124MR SONNET: Yes.
125HIS HONOUR: And I have already made the declaration as the 250 days and that will result in him having to serve a further 12 months.
126COUNSEL: Thank you, Your Honour.
127HIS HONOUR: Pursuant to the provisions of s.44(1).
128COUNSEL: Thank you, Your Honour.
129MR SONNET: And the s.6AAA declaration.
130HIS HONOUR: Section 6AAA in this case is very difficult especially when Parliament require me only to take into account the consequences of a plea of guilty only, and there were so many multifarious factors that came into this sentence. It seems to me the best way I can comply with that is to say that had your client not pleaded guilty to the matters in the indictment, he would not have got a combined sentence. I do not think I can take it any further than that.
131COUNSEL: If Your Honour pleases.
132HIS HONOUR: Yes.
133MR SONNET: Can I also approach the dock whilst this is being done?
134HIS HONOUR: Yes, thank you.
135MR SONNET: Thank you, Your Honour. That order has been signed, Your Honour.
136HIS HONOUR: Thank you. I do not know, is that a signature? I see. I do not know. Have a look, Mr Sonnet? Is that a signature of your client?
137MR SONNET: I will just check. Thank you, Your Honour. He instructs me that is his signature, Your Honour.
138HIS HONOUR: All right. Mr Cagalj, having signed this you are aware that the fundamental importance of this is to comply, once you get out, not only to serve the period of punishment that is left for you, but to comply with the Act you are old enough and hopefully wise enough now to realise what happens if you do not. Yes.
139MR SONNET: If the Court pleases.
140HIS HONOUR: Thank you. The prisoner can be taken away. (Name given), I should say there will be no reference to your name in the sentence. I have used your name because you are here but in the sentence your name is not mentioned at all, all right. Thank you.
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