Director of Public Prosecutions v Cvetkovski

[2015] VCC 629

IN THE COUNTY COURT OF VICTORIA Revised
 Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00276

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRIS CVETKOVSKI

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2015
DATE OF SENTENCE:	30 April 2015
CASE MAY BE CITED AS:	DPP v Cvetkovski
MEDIUM NEUTRAL CITATION:	[2015] VCC 629

REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: Armed Robbery
Sentence: 14 months imprisonment with 140 days reckoned as time already served, two year community corrections order with conditions

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Ms M. Tittensor

HER HONOUR: 

1Chris Cvetkovski, you have pleaded guilty to two charges of armed robbery.  Armed robbery carries a maximum penalty of 25 years' imprisonment.  You are now aged 31 and were 28 at the time of offending.  The charges on the indictment arise from two incidents, both of which involve you acting in concert with a co-offender Isiah Walters, who was 18 years old.

2The facts surrounding your offending were outlined in the summary of prosecution opening which was tendered as Exhibit 1 and I sentence you on the basis of the facts contained in that document.

3Charge 1 concerns an armed robbery carried out at 4.20pm against the Liberty service station, Clayton, on 20 October 2012.

4You and Mr Walters entered the service station.  You went up to the counter and spoke to the store attendant about buying some DVDs.  The store attendant recognised you as a previous customer. He turned to look for a DVD in a cupboard behind the counter when Mr Walters approached him from behind and pressed a knife against his side.  Mr Walters demanded that the attendant give him “all the money”.  As part of the ruse to deceive the attendant you then walked behind the counter and told the Mr Walters to stay away and not hurt the attendant.  You told the attendant that you would call the police and ran out of the store.  Mr Walters then ordered the attendant to open the till and put all the money in a bag.  The attendant did so and Mr Walters swept a number of packets of cigarettes into the bag before running out of the store.  You then came back into the store and told the attendant that you had called the police and then left the store, pretending to give chase to Mr Walters.  The attendant then called police.  The incident was captured on CCTV and I have viewed the relevant footage.  The store attendant later identified you from a photo board.  The manager of the store later viewed the footage and identified you as a regular customer he knew as Chris.  He also identified you from a photo board.

5At the time of the offending you were not wearing a disguise and your face was visible as was a crucifix tattoo on your neck.  Mr Walters was wearing a grey hooded top, with the hood up, but his face was visible and can be clearly seen on the CCTV footage.

6A total of $682 cash and $580 worth of cigarettes were stolen from the service station.

7

Charge 2 concerns an armed robbery at the Gumnut milk bar, Hawthorn, carried out about 5.15pm on Sunday 21 October 2012.  You entered the milk bar and engaged the store attendant in a conversation about some food items.  While this was occurring Mr Walters also entered the shop.  You asked for some cigarettes and the store attendant turned around to get them.  

Mr Walters then came up behind the store attendant, put a knife against his throat and said, "Come with me, in the back room. Don't call police.  Just stand with him."  The store attended was scared and replied, "You can take everything, just don't hurt me."  At the point, a tenant of the building opened a door at the rear of the premises and said, "What are you doing?"  By this time Mr Walters was holding the knife to the victims back and the tenant could not see it.  The store attendant said, "This guy just wants to buy some drinks."  The tenant went back into the room and told her daughter to call the police.  The store attendant then begged Mr Walters saying, "Leave my books and the other stuff.  I will give you money."  Mr Walters said, "I will, I will.  Don't call the police. I won't hurt you."  He then told the store attendant to go out to the front area of the shop and sit down.  While this was occurring you went behind the counter and took money from the till and cigarettes from the cupboard, which you placed in a blue bag.  Before you and your offender left the store the store attendant begged you again not to take his belongings and you returned to him his wallet and phone and then left the shop taking with you money and cigarettes to value of $1,000.

8The incident was captured on CCTV and I have viewed the relevant footage.  The store attendant was nervous and scared throughout the incident but was not physically hurt.

9As in the previous incident, your crucifix tattoo is visible in the CCTV footage.  Mr Walters was wearing the same grey hooded top he was wearing during the armed robbery on the previous day.

10

Four days later on 25 October 2012 you and Mr Walters flew to Brisbane.  Later the same day you were both arrested after committing an armed robbery at a 7-Eleven convenience store.  Both of you were charged and on the

30 May 2013 you were sentenced to a term of three years' imprisonment but immediately paroled, having served seven months of your sentence.

11You committed further offences in Queensland, including offences of dishonesty, possess drugs, proceeds of crime on 5, 11 and 15 June, 2 July, and 5 - 6 December 2013, for which you were sentenced to two years' imprisonment.

12You were in custody from the 6 December 2013 and eligible for parole on the 30 October 2014.  On 11 December 2014 Victorian police officers interviewed you in Queensland on the current offences.  On that day you were granted parole in relation to the Queensland offences and extradited to Victoria, where you were interviewed.

13During the interview you admitted being at that service station a few times before the armed robbery and that the owner knew you as Chris but otherwise, answered "no comment" to all other questions about the incident.

14In relation the milk bar robbery, you agree that it was you in the CCTV stills from that incident.  But again, answered "no comment" to the allegations.

15

On the 19 February 2015 at a committal case conference hearing you entered a plea of guilty to Charge 2 on the indictment but not guilty to Charge 1 and also not guilty to a separate charge of armed robbery. However, on the

17 March 2015, as a result of further resolution discussions, you agreed to also plead guilty to Charge 1 on the indictment and the prosecution withdrew the other armed robbery charge.

16The victim from the first incident, Ranakava Pattel, has made a victim impact statement which was read out in court.  He was very frightened by the incident, had stopped working alone on nights and weekends and has stopped working in service centres, which has caused him financial loss.  Although he suffered no physical injuries as a result of the offending, he has suffered emotional stress and is unable to trust strangers.

17There was no victim impact statement from the second victim who has returned to China and could not be located.  However, the CCTV footage shows how terrifying the incident must have been for him as for some period he is pushed and man-handled from behind, by Mr Walters, with a knife being held at his throat.

18I note that you have been in custody on these matters since the date of your extradition, being the 11 December 2014.  You have just spent 140 days in custody on these matters up to, but not including, the 30 April 2015, which is to be reckoned as pre-sentence detention.

19Compensation orders have been sought in relation to both charges.  I understand that these are not opposed and I will make the order sought.

20I note that you have significant prior convictions including convictions in New South Wales for dishonesty, robbery, assault, assault with intent to rob, demand with menaces and threaten serious injury, but no priors for armed robbery.

21It was submitted, by the prosecution, that the sentencing considerations of denunciation, general and specific deterrence and just punishment require the imposition of an immediate custodial sentence.  With some cumulation to reflect the fact that there were two separate armed robberies, with two victims.

22The prosecution noted that there was some degree of planning, indicated by your distracting the shop attendant and your co-offender approaching from behind.

23I turn to your personal circumstances.  You were born in New South Wales in 1983.  Your parents were from Yugoslavia.  You have two older siblings.  You had a loving home.  You did quite well at school but left after year ten to pursue your dream of playing professional soccer.  However, you were injured while trying out for clubs and were unable to play for two years.  During that time you worked in the family business.  Your mother fell ill in 2000 and you cared for her.  At age 17 you resumed playing premier league soccer.  You were earning well and began to use cannabis recreationally as well as the occasional pill.

24In 2002 your mother fell ill again and in 2003, while in hospital recovering from surgery, suffered a haemorrhage and died.  You were with her at the time.  You had some counselling then.  Your siblings had left home and you were left to care for your father.  At that time, by your early 20s, your drug use escalated and you were using ice and cocaine and committing offences to buy drugs.  Your offending involved the making of threats but never involved physical harm occasioning injury.

25From 2005 onwards you received a custodial sentence each time you offended and spent almost seven out of the next ten years in gaol.  For this reason you were only able to obtain seasonal work during the periods you were in the community.  You had a steady relationship from the age of 17 and have a son born in 2006, while you were in custody.  You have not seen him in the past three years and you relationship broke up.  Your father fell ill with liver cancer in 2006.  You resumed heavy drug use and within nine months had re-offended and were back in gaol.  He died while you were in gaol and you missed his funeral.    There for the first time, you were screened by the mental health team, diagnosed with psychosis and treated with medication.  On your release in mid-2011 your sister persuaded you to leave behind negative influences on you and move to Melbourne, where you have an aunt and family friends.  Within a few months you found work as a stable hand, obtained your own accommodation, formed a relationship and started seeing your son again.

26You fell ill in 2012 and were diagnosed with Crohn's disease.  Your relationship ended, you resumed heavy drug use and moved to backpackers accommodation where you met Mr Walters and offended with him, over two days, before flying to Queensland with him and committing a further armed robbery, not the subject of this sentence.  You were arrested and gaoled in Queensland where you were placed in a drug therapy unit, passing regular drug screens. During this time you participated in daily programs, became drug free and committed various educational programs.  You had some grief counselling concerning the deaths of your parents, which you found helpful.

27You were paroled in Queensland on the date of sentence, 30 May 2013, only seven months into your three year sentence.  You had nowhere to go and virtually no money and so re-offended in June, July and December 2013 and were re-arrested.  You continued to participate in courses and in drug relapse programs, returned a number of negative drugs screens and a bundle of documents attesting to these matters were tendered by your counsel and, this time, began to organise some supports for yourself upon release.  You were granted parole in December 2014 and were immediately extradited to Victoria.  While in custody, you had been engaged in a fitness regime, playing soccer and work in the kitchen.  You are drug free and on the waiting list for many courses and I note, the Kangan certificate, tendered today, in relation to one of those courses that you have completed.

28You are supported by your sister, who lives in Sydney, but speaks to you often and by your aunt and family friends in Melbourne.  You realise that you need to remain drug free and not re-offended in order to have contact with your son.

29Your counsel submissions on your behalf may be briefly summarised as follows:  Your plea at an early stage indicates your remorse.  In addition, you appreciate how frightening the incidents were for the victims, who would have been in fear of suffering physical harm.  Your plea has saved the community the expense of trial.  As you have spent over half your adult life, in custody, one must be guarded about your prospect of rehabilitation.  On the other hand, while in custody, you remain drug free and have been taking advantage of all the programs which may assist you later.  In addition you are actively taking steps to plan the supports you will need when you are released.

30Any sentence imposed should be moderated to take into account the delay in charging you and the fact that, had you been dealt with in October 2012 for all three armed robberies, which had occurred within one week, there would be substantial concurrency between any sentences imposed.

31In addition, the principles of totality and proportionality are particularly important in your case, as over the past ten years, since the age of 22, you have spent over seven years in prison and since October 2012 have only spent six months in the community.  Your offending has been driven by long term drug use and you will require support and supervision to enable you to prove yourself so that you can get on with your life.

32Finally, it was submitted, that the sentencing landscape has changed since the guideline judgment in Bolton's case, such that it is appropriate in all the circumstances, that you serve a further short period in custody, followed by a community corrections order.

33In light of the submission, concerning a community corrections order, you were assessed by Corrections Victoria on 20 April 2015 and a report dated the same date indicates that you were unsuitable for such an order unless you could provide a valid address.  You have since provided an address to Corrections Victoria, who have indicated that you are now suitable for a community corrections order.

34The report recommended conditions including, unpaid community work, drug assessment and treatment offending behaviour programs and supervision.

35I turn to the relevant sentencing principles.  Armed robbery is a serious offence as evidenced by the maximum penalty of 25 years' imprisonment.  Armed robbery in daylight, against soft targets, such as shop attendants, going about their daily business, is a serious matter and is conduct which must be denounced and punished to deter others from resorting to it.

36Your offending in the first incident has had a significant impact on Mr Pattel, as indicated in his victim impact statement.

37While there was no victim impact statement from the victim of the second incident, it is clear from the CCTV footage of him being man-handled and pushed around, from behind, by Mr Walters, who was holding a knife, that the incident would have been a terrifying one.

38I consider that the nature and gravity of your offending puts it towards, but not at, the lower end of the scale of offending of this type.  Protection of the community is another relevant consideration, although I accept that as you have become drug free in prison and engaged with sporting and educational pursuits, you may have matured somewhat gained some insight and some motivation to conduct yourself well so that you can re-establish contact with your son. I have read the heartfelt letter, tendered this morning, which fully expresses your remorse and your intention to rehabilitate yourself.

39This provides some hope that you will set yourself on a course of sustained rehabilitation although I accept that in the past, your brief periods in the community have ended with further offending and that because of this I can only be cautious about assessing your prospects of rehabilitation.

40Protection of the community still remains a relevant consideration, as do principles of general and specific deterrence.  The sentence I have imposed must deter you from further offending.  As indicated above, you have numerous prior convictions from offences involving violence, although none for armed robbery.

41I note that as you were 29 at the time of offending, you are not entitled to a discount as a youthful offender.  I accept there has been substantial delay in charging you for these offences and that your sentence should be moderated somewhat to reflect the seven months spent in prison in Queensland for the subsequent offence, which was of an identical nature and which occurred only days after the offending for which you are being sentenced today and in the circumstances of the long periods that you have spent in prison in the past ten years I am mindful of the principles of proportionality and totality in imposing the sentence upon you today.

42I accept that you are entitled to a discount for your plea of guilty and that you have shown genuine remorse for your conduct as evidenced by the letter which has been tendered today.  In addition to all the matters relied upon by your counsel.

43In all the circumstances, I consider the appropriate disposition is the imposition of a further term of imprisonment, followed by a community corrections order.

44In relation to the term of imprisonment, given the similarity between the offending, the subject of the charges and the proximity and time between them, I consider it appropriate to impose an aggregate sentence.  In doing so, I have taken into account that these were two armed robberies against two victims.  Would you please stand?

45On Charges 1 and 2, armed robbery, you are sentenced to an aggregate sentence of 14 months' imprisonment.

46I declare that 140 days of pre-sentence detention is to be reckoned as time served and to be so noted in courts records.

47In addition, you are sentenced to a 24 month community corrections order to commence immediately upon your release from prison, that that will be 12 February 2016.

48The community corrections order is for a period of two years.  The following conditions are imposed, (1) that you perform 150 hours of unpaid community work, (2) that you undergo drug assessment and treatment to assist you to remain drug free, (3) that you participate in other offence related programs and (4) that you undergo supervision.

49In addition to the conditions I have specifically imposed, you must also abide by the mandatory conditions of the community corrections order.  These are that you must not commit any other offences during the time that the community corrections order is enforced.  That is, the two years from the date of your release from prison.  Any offence for which you could be imprisoned, even if a court would not choose to impose the imprisonment.  You must report to and receive visits from a community corrections officer.  You must report to the Community Corrections Centre at Broadmeadows within two clear working days of being released from prison.  Also, you must not leave Victoria without first getting permission from a community corrections officer and you must inform the community corrections office of any change of address where you live or work with 48 hours of that occurring and finally, you must obey all lawful instructions from and directions of community corrections officers.

50Do you understand the conditions I have imposed and the general terms that apply?

51OFFENDER:  Yes.

52HER HONOUR:  Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the community corrections order, except for a contravention of the direction by the secretary, is in itself, an offence, punishable by three months' imprisonment.  Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences.

53Do you consent, in those circumstances, to the imposition of that order?

54OFFENDER:  Yes.

55HER HONOUR: I will have you sign those orders in a moment. I indicate pursuant to s.6AAA of the Sentencing Act, that, but for your plea of guilty, I would have sentenced you to an aggregate term of two years' imprisonment and a two year community corrections order.

56HER HONOUR:  Now apart from the calculation ‑ ‑ ‑

57MR BALLEK:  I think that date is correct Your Honour. Sorry Your Honour.

58HER HONOUR:  Apart from the calculation.

59MR BALLEK:  Yes.  I think that - did Your Honour say 11 February 2016.

60HER HONOUR:  I said the 12th but it could be the 11th.

61MR BALLEK:  Yes, that, that's correct, Your Honour.

62HER HONOUR:  Is that 12?

63MR BALLEK:  That would be 14 months from the date that he went into custody so it takes into account that pre-sentence.

64HER HONOUR:  Take a seat Mr Cvetkovski. 12 February it is.  We'll just have you sign the community corrections order.

65MS TITTENSOR:  May I approach my client, Your Honour?  Thank you, Your Honour.

66HER HONOUR:  There is no condition there in relation to mental health assessment and treatment. Would one be appropriate? I was not sure.

67MS TITTENSOR:  I didn't make that submission last time.

68HER HONOUR:  No you didn't.  No.

69MS TITTENSOR:  And in fact, I said he'd received some counselling ‑ ‑ ‑

70HER HONOUR:  That's right.

71MS TITTENSOR:  ‑ ‑ ‑ which he thought beneficial and there were no submissions in relation to those kinds of matters on the plea, at all.

72HER HONOUR:  Yes. There was nothing to put me on notice about. All right. Thank you. Are there any other matters?

73MS TITTENSOR:  No, Your Honour.

74HER HONOUR:  Thank you very much.

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