Director of Public Prosecutions v Cruickshank
[2014] VCC 1114
•26 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01953, CR-13-02323, CR-13-02321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Cruickshank, Zivanovic, Polidoro |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2014 | |
DATE OF SENTENCE: | 26 June 2014 | |
CASE MAY BE CITED AS: | DPP v Cruickshank & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1114 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – unlawful assault – use a false document
Sentence: Fines
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| APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | OPP |
| For the Accused Cruickshank For the Accused Polidoro For the Accused Zivanovic | Mr T. Lavery Mr G. Steward Mr J. McQuillan | Turnbull Lawyers Cameron Marshall & Associates |
HER HONOUR:
1 John Clifford Cruickshank and Daniel Zivanovic, you have each pleaded guilty to one charge of unlawful assault. Remo Polidoro, you have pleaded guilty to one charge of using a false document. The maximum penalty for unlawful assault is five years' imprisonment. The maximum penalty for using a false document is 10 years’ imprisonment.
2 The procedural history of these matters is relevant by way of background. You were each originally charged with a number of charges including extortion and threat to kill. You pleaded not guilty at your respective committal hearings and were committed for trial. One of your co-accused, Mr Tillem, pleaded guilty to a charge of extortion and was sentenced by Her Honour Judge Nicholson on 21 June 2013. He gave an undertaking to give evidence against his co-accused. Your trials were listed to commence together on 24 March 2014 but were adjourned to 2 June because of the unavailability of a witness Claire Foote. Each of you was arraigned on the current indictment on 4 June 2014 and pleaded guilty.
3 The circumstances of the offending is set out in the agreed Summary of Prosecution Opening which was tendered as Exhibit 1 on the plea hearing and I sentence each of you on the basis of that summary. I will therefore only briefly refer to the matters set out in that summary.
4 The circumstances of the offending are as follows. In 2008 Fred Hayek entered into a partnership with Remo Polidoro to buy and develop a property in Lower Plenty. The business relationship ended after some disagreement about the financial contributions to the development of that property. In mid-2011, Hayek’s solicitor placed a caveat over the property.
5 On 25 August 2011, Mr Polidoro’s conveyancer gave Mr Polidoro a number of documents including a statutory declaration and a withdrawal of caveat. Mr Polidoro told her that he had spoken to Hayek and had arranged for him to sign these documents.
6 At around 11.30pm on Monday 29 August 2011, Mr Hayek and his wife Claire Foote were at home when there was a knock at the door. There were three men on the front porch: you, Mr Cruickshank, and you, Mr Zivanovic, as well as Mustafa Tillem. You had arrived there together in Mr Tillem’s car. None of you were known to the couple.
7 You, Mr Cruickshank, asked if he was Fred Hayek to which he responded he was. You then held out a folder containing three documents and said that he needed Hayek to sign them. Mr Hayek recognised Mr Polidoro’s writing on the documents and asked what they were, and you, Mr Cruickshank, told him: “It does not matter what they are, we have just come here to get you to sign them”.
8 Mr Hayek refused to sign the documents. You, Mr Cruickshank, grabbed him by the throat and held him in a headlock. You then dragged him off the porch to the front of his car, waving the documents in front of his face. Mr Hayek’s wife ran inside to call police. You let go of Mr Hayek and he asked for the chance to read the documents. You slapped him across the face and again insisted that he sign the documents. Mr Hayek read one of the documents, then signed the three documents on the bonnet of his car. Mr Tillem, Mr Cruickshank and Mr Zivanovic then got into Mr Tillem’s car and left the property.
9 You, Mr Cruickshank, committed the physical act constituting the assault, and you, Mr Zivanovic, by your presence, were acting in concert with Mr Cruickshank and equally guilty of unlawful assault, even though you committed no physical act against Mr Hayek.
10 On 30 August 2011 you, Mr Polidoro, lodged the Statutory Declaration and Withdrawal of Caveat documents at the Land Titles office in the company of your conveyancer. This is the subject of charge 2, using a false document. Your solicitor later successfully removed the caveat. Ms Foote and Mr Hayek identified you, Mr Cruickshank, on a photoboard, and your fingerprints were obtained from the bonnet of Mr Hayek’s car. Ms Foote also identified you, Mr Zivanovic, from a photoboard.
11 You, Mr Polidoro, agree that you told a friend known as “Caner” to arrange for the withdrawal of the caveat and to do whatever he had to do to get it signed. When interviewed by police on 12 September 2011, you, Mr Polidoro, stated that you gave the documents to one of your labourers called Butch, who knew of your relationship with Mr Hayek, that one of Butch’s friends, Mustafa Tillem, offered to take the documents to Hayek; and that you found the two documents signed by Hayek on your desk at the property in Kett Street, Lower Plenty, the day before you took them to the Titles Office.
12 The prosecution tendered victim impact statements of Claire Foote dated 4 June 2013 (Exhibit 3) and Fred Hayek dated 5 June 2013 (Exhibit 2). I acknowledge that these were prepared at a time when the three of you were facing different, more serious charges, on a different indictment than the one before me today. I also acknowledge the limited relevance of the sentencing remarks of Her Honour Judge Nicholson as they relate to the more serious charge to which Mr Tillem pleaded guilty. In her Victim Impact Statement Ms Foote refers to the fact that she has been traumatised by the incident because it occurred at her home; and continually relives the memory of seeing three men at her door. Her fear of being alone at home at night has resulted in some financial loss as her husband can no longer work his usual hours. Mr Hayek stated in his statement that at the time of the incident he and his wife were newlyweds who had only just bought their home and that he was badly affected by what happened, both mentally and financially, because of the shorter hours he could work due to his wife’s fearfulness.
13 The prosecution conceded that all sentencing options were open in relation to each of you, including the option of a fine.
Mr Daniel Zivanovic
14 I turn to the matters raised in relation to you, Mr Zivanovic. You are 42 years of age. You have one minor conviction for unlawful assault from 23 years ago when you were 19 and were involved in a scuffle with a man on a building site. He suffered no injury. You received an adjourned bond and were ordered to pay $250 into the court fund. The only reason you were present at the Hayek’s home was that, having worked with Mr Cruickshank in the security industry, you happened to be living with him at the time of these events and happened to be at home on the night. You had not received any prior request to be involved in these events but went along with Mr Cruickshank that night when he told you to go with him. You committed no physical acts at the scene. You were supported at the plea hearing by your mother and by your parish priest in the Serbian Orthodox Church, Father Milan Milatonovic, who has known you for three years and who gave evidence on your behalf. Your counsel also tendered a number of references.
15 You finished Year 12 at school and attended a tennis academy, hoping one day to play professionally. However, your father withdrew funding for this training, and you worked at various jobs before repeating Year 12 in order to obtain better results. You did so, and completed one semester of a university course in Adelaide before returning to Melbourne, where you did clerical work before obtaining a security licence and a heavy rigid truck licence. You have been working in security at night and on weekends to supplement your income from daytime work as a truck driver. You have had consistent employment until your security licence was suspended over the current charges. You have been seeing a psychologist for the past year or so for some problems, some of which may have been caused by an incident in 1989 when you were punched in the head, and other issues relating to the concern over the charges you are facing. While waiting for this matter to be finalised, you have undertaken further courses relating to the security industry.
16 Father Milatonovic has known you for three years and describes you as a very good man, who is very remorseful, and very helpful at the church, maintaining the grounds, driving the elderly and organizing functions. He says you have a good reputation in the community and that the behaviour that brings you before the court is out of character. A fellow parishioner and barrister, Lee Ristivojevic, describes you as a dedicated parishioner who has been badly affected by this criminal matter and says you have expressed remorse and regret for the incident. Your employer has also written that you are a valued and reliable employee with an easy-going personality and that the conduct that brings you to court is out of character.
17 Your counsel submitted that you pleaded guilty at the earliest opportunity, have excellent prospects for rehabilitation and that your employment in the security industry will be adversely affected if a conviction is recorded against you. He submitted that your offending was at the low end of the range and that a disposition by way of fine without conviction was the appropriate disposition. The prosecution did not contend otherwise. In the light of the circumstances in which you came to be present at the scene, the fact that you did nothing physical while there, coupled with your excellent work history, absence of prior convictions apart from one minor matter 23 years ago when you were 19, your plea of guilty, your remorse, and your excellent prospects of rehabilitation, I consider it appropriate to impose the sentence sought on your behalf.
18 Would you please stand. On charge 1, unlawful assault, you are fined $500 without conviction. You may be seated.
Mr Remo Polidoro
19 I turn to you, Mr Polidoro. It is necessary to take into account the circumstances which are relevant to your offending but only to the extent that this does not interfere with the overriding obligation to sentence you only for the offence with which you are charged. Your counsel outlined some of these circumstances. In particular, I note that although Mr Hayek had been the best man at your wedding, your relationship with him had deteriorated to the extent that between December 2010 and June 2011 you received a number of threatening and inflammatory text messages from him. Out of frustration, and acting out of character, you resorted to arranging for signature of the documents as outlined in the summary, but this exercise proved to be unnecessary as ultimately the Supreme Court held there was no caveatable interest and the caveat was removed. I note that what happened at Mr Hayek’s house is not relevant to the offence to which you are being dealt with. By your plea you admit that the documents were returned to you in circumstances which must have led you to believe that the signatures (not being the normal signature of Mr Hayek) were false. You have two prior matters: one in 2001 for handling/receiving stolen goods. This concerned a car that you purchased from a friend; it was delivered to you late at night; and you pleaded guilty on the basis that you had the requisite suspicion that the car was stolen. You were fined $5000 with conviction. The second matter involved your taking a bandage from a hospital treatment room for your wife in February 2011. You were charged with theft and received a bond and were ordered to pay $500 to the Court Fund.
20 Your wife, Kayla Polidoro, who also works as the office manager/book keeper for your business, provided a reference and gave evidence at the plea hearing. In her letter, she described you as a wonderful husband and father to your two daughters and to your daughters from your previous marriage. She noted that you have an excellent reputation in the industry and with your employees. At the hearing she confirmed that she typed out the text messages you received from Mr Hayek, and these were tendered as an exhibit. Your former partner, with whom you have two daughters, provided a reference in which she notes your dedication in looking after your daughters on weekends and during holidays and helping pay for their education and medical needs. She noted that she has known you for 23 year and considers you an honest man and an exemplary father. You mother in-law also provided a reference in which she praises your involvement with your young daughters and your two older daughters as well as your elderly parents. She is aware of the charge and considers it out of character.
21 You are 45 years old and have parents in their 80’s and three brothers and a sister, who all work and have never been in trouble. You completed Year 11 at school and then obtained a certificate of building construction in 1989; a certificate of business management in 2006 and obtained a domestic builders licence in 2007. You worked as a joiner and then as a detailer of wall frames, managing the office of the wall framing business in 1994. In 1997 you set up a mini golf business which you gave your parents to run in 2000. In 2006 you built a factory to produce pre-fabricated wall frames for the building industry and you employ 15 staff.
22 It is clear from the evidence that you are a successful businessman and a caring husband and father. I note that your first prior conviction is now very old and the second one relates to a trifling matter. You pleaded guilty to the current charge at the earliest opportunity. Your counsel sought a disposition involving fine and conviction, and the prosecution did not contend otherwise. Mr Polidoro, please stand: On the charge of using a false document you are convicted and fined $2000. You may sit down.
Mr John Clifford Cruickshank
23 I turn to the matters agitated on your behalf, Mr Cruickshank, by your counsel. He suggested that I should have regard to the following circumstances: You were working in security at a club and were approached by someone there and asked to attend at certain premises to get documents signed. You had previously acted as a process server. You were told that you would be accompanied by Mustafa Tillem and that a third person would be engaged. You were told that Mr Hayek was a shady character. You and Daniel Zivanovic went in Mr Tillem’s car to Mr Hayek’s home. On the way there you discussed going to the door and asking him to sign the documents. According to Mr Tillem’s statement, you read the documents and said, “We don’t do anything unless he starts it.” In other words, you went there only intending to get the documents signed. You apparently told Mr Tillem not to go into the house. You admit the assault which I have described above, and that the assault occurred shortly prior to the documents being signed. Mr Hayek did not sustain any injury, but was very frightened and traumatised by the incident, as detailed in his victim impact statement to which I have already referred above. You pleaded guilty at the earliest opportunity and instructed your counsel that you are sorry about what you did, that you did not go into the situation with your eyes fully open. You have no prior convictions. You are currently serving a Community Corrections Order for a subsequent offence, trafficking MDMA and other offences. You have been required to perform under that Community Corrections Order 160 hours of unpaid work. You have attended all appointments and have 128 hours left to complete. Your counsel suggested that you have excellent prospects of rehabilitation.
24 You are 35 years old. You grew up in New Zealand and were educated to Year 10. You came here in 2002 and have worked in the security industry. You were unable to renew your security licence because of the charges which were subsequently withdrawn and replaced by the charge to which you have pleaded guilty. Your financial position has been very detrimentally affected by your inability to do security work and you are now trying to get a heavy vehicle licence. Your counsel submitted that the offending was at the low end of seriousness because you did not cause any injury and that a fine with conviction or a Community Corrections Order would be sufficient punishment. Counsel for the prosecution did not contend otherwise.
25 Your conduct towards Mr Hayek was completely unacceptable. I accept, however, that it was not premeditated and that it did not cause any injury and that it is not a serious example of the offence. I consider that your prospects for rehabilitation are good. You pleaded guilty at the first available opportunity. In the circumstances, I consider that a substantial fine with conviction would be an appropriate disposition.
26 Would you please stand, Mr Cruickshank. On the charge of unlawful assault, John Cruickshank, you are convicted and fined $2,500. Please take a seat.
27 Are there any other matters?
28 MR LAVERY: Yes, Your Honour. I simply ask for what is really a statutory stay of one month. As foreshadowed, Your Honour, I will be having Mr Cruickshank approach the registrar for a repayment scheme.
29 MR YIANOULATOS: I also seek a stay, Your Honour.
30 MR MARCEVSKI: I also seek a stay on behalf of Mr Zivanovic , Your Honour.
31 HER HONOUR: The orders will be those fines but with a stay in relation to each of them of one month. I will sign the orders. Otherwise, no other matters?
32 MS BROADBENT: No other matters, Your Honour.
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