Director of Public Prosecutions v Dakic
[2024] VCC 481
•18 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01697
CR-23-01932
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SASHA DAKIC |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2024 | |
DATE OF SENTENCE: | 18 April 2024 | |
CASE MAY BE CITED AS: | DPP v Dakic | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 481 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea
Catchwords: Sentencing – assist offender – traffick drug of dependence – possession of a drug of dependence – possess firearm contravene firearm prohibition order – possess precursor chemical – deal with proceeds of crime – possess a schedule 4 poison – 30 years old man at time of offending – assist offender moderate gravity – assisted the shooter to avoid responsibility – assist offender occurred in a criminal milieu – possess firearm high culpability – possess firearm more serious when in conjunction with drug trafficking – drug trafficking high culpability – multiple substances in multiple locations – degree of sophistication and organisation – significant need for general deterrence and denunciation – lengthy and relevant criminal history – limited progress on previous rehabilitative orders – greater weight on specific deterrence – history of substance use – recommended residential program for treatment – guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic); Firearms Act 1996 (Vic)
Cases Cited:R v Lacey [2007] VSCA 196
Sentence:Total effective sentence 5 years 3 months imprisonment with a non-parole period of 3 years 3 months; 406 days reckoned as already served; 6AAA – but for plea of guilty, sentence imposed would have been 7 years and non-parole period of 4 years 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | J. Hotckin (plea) A. Dickens (sent) | Office of Public Prosecutions |
For the Offender | A. Chernok (plea) S. Tricarico (sent) | James Dowsley & Assoc |
HIS HONOUR:
1Sasha Dakic, you have pleaded guilty to charges on two indictments.
2On the first indictment, P10937958 (CR-23-01932) you pleaded guilty to assisting an offender who had recklessly caused serious injury occurring on 25 February 2023.
3On the second indictment, P10526937 (CR-23-01697) you pleaded guilty to the following offences occurring on 2 and 9 March 2023:
(a) four charges of trafficking a drug of dependence, namely, 1-4 Butanediol (Charge 1), Cannabis (Charge 11), Methamphetamine (Charge 15) and Cocaine (Charge 16);
(b) five charges of possessing of a drug of dependence, namely, methamphetamine and MDMA (Charge 2), Testosterone (Charge 5), Buprenorphine (Charge 6), Oxandrolone (Charge 8); Methylamphetamine (Charge 10) and 1-4 Butanediol (Charge 17);
(c) seven charges of possessing firearms and related items in contravention of a firearm prohibition order, namely, ammunition and magazines (Charges 3, 7, and 14), a shotgun (Charge 9), a rifle (Charge 12), and a handgun (Charge 13); and
(d) one charge of possessing a precursor chemical, namely, iodine (Charge 4).
4You have also pleaded guilty to summary offences of dealing with $46,095 suspected to be proceeds of crime on 2 March 2023 (Summary Charge 15) and possessing a Schedule 4 poison, namely, Tadalafil on 9 March 2023 (Summary Charge 23).
Circumstances of Offending
5The agreed facts of your offending are set out in two prosecution openings, dated 23 February 2024 for the first indictment and 21 March 2024 for the second.
6In short, the offending in the first indictment occurred just before 2.00 am on Saturday 25 February 2023, when you and the principal offender went to Sam Grasso’s home in Clayton. He was there with two women watching TV.
7After entering, you both pushed Mr Grasso into the kitchen and told the women to leave. They did and called Thomas Windsor, who said he would come over to his friend Grasso’s aid.
8He arrived and while he was in the kitchen with you the principal offender shot Mr Windsor in the stomach.
9You then left with the gunman and drove him away. You did so with the purpose of impeding his apprehension and prosecution (Charge 1, assist offender).
10A neighbour went into the house and found Mr Windsor on the floor bleeding from the bullet wound.
11Police soon arrived as did paramedics who took Mr Windsor to the Alfred Hospital where he underwent an emergency laparotomy, removing 56 centimetres of damaged bowel. The bullet was found lodged in his pelvis and was not safe to remove.
12He remained in hospital for nine days initially but was re-admitted only six days later with an infected wound and bowel obstruction that required further surgery. He was discharged after a further six days. Mr Windsor has not made a victim impact statement.
13There is no dispute that the bullet passed through a part of Mr Windsor’s body where there are major blood vessels and that his injuries were substantial and protracted.
14On 28 February, a few days later after the shooting, you were on a phone call to a prisoner at Port Phillip Prison. During that call you made coded comments expressing pride about being involved in the shooting and referring to the principal offender.
15The offending charged on the second indictment commenced a couple of days after that, on 2 March 2023.
16At about 9am that day, police executed search warrants for drugs and guns at your storage unit on Geelong Road in Brooklyn. From there investigators found and seized the following items:
(a) a total of 1,884.1 grams of 1,4-Butanediol (Charge 1, trafficking);
(b) 1.2 grams of Methylamphetamine and 0.7 grams MDMA (Charge 2, possession);
(c) four shotgun ammunition rounds, a silver-coloured firearm magazine, a box of .308 calibre ammunition and a shotgun ammunition round (Charge 3, a rolled-up charge of possession);
(d) 2.295 kilograms of Iodine, exceeding the 25-gram legal limit (Charge 4, possessing pre-cursor chemical);
(e) four vials of Testosterone (Charge 5, possession);
(f) four bundles of Suboxone film (Charge 6 possession).
17At the same time, warrants were also executed at your home in Seabrook. There, police found and seized the following items:
(a) 10 rounds of ammunition and a magazine (Charge 7, possession);
(b) two bottles of Oxandrolone tablets (Charge 8, possession);
(c) a shotgun (Charge 9, possession);
(d) Methamphetamine (Charge 10, possession);
(e) six bags totalling 2.35 kilograms of Cannabis leaf (Charge 11, trafficking);
(f) a bolt-action rifle (Charge 12); and
(g) $40,345 cash (Summary Charge 15).
18The two long-arms were inoperable due to missing parts but could be returned to a functioning condition if they were replaced.
19A week later, on 9 March 2023, police executed further warrants at another house associated with your partner, where you also lived, in Thomas Street South, Windsor. They found and seized the following:
(a) a loaded operative handgun in a holster (Charge 13, possession);
(b) seven rounds of ammunition (Charge 14, possession);
(c) a total of 168.9 grams of methylamphetamine (Charge 15, trafficking);
(d) 54.9 grams of cocaine (Charge 16, trafficking);
(e) 187.2 grams of 1-4 Butanediol (Charge 17, possession);
(f) a further $5,750 cash (Summary Charge 15); and
(g) other items not said to relate to any charge.
20On this day police also returned to your Brooklyn storage unit where they found another 11 vials of Testosterone in a vehicle within (Charge 5, possession).
21At the time of possessing these items you were a prohibited person and subject to a firearm prohibition order, served on you on 15 January 2021.
22You were arrested at the Windsor house on 9 March. When interviewed you made no comment and were charged.
23On 28 April 2023 police sought to interview about the shooting but you declined to participate, and you were charged for that on 3 May 2023.
Procedural history
24The original charges relating to the shooting were listed for contested committal on 15 November 2023, but the matter settled to the charge on the first indictment, before any witness was cross-examined that day.
25It was conceded by the prosecutor that this represented an early plea.
26The second indictment was settled in August 2023, but you sought that those charges be heard in the Magistrates Court, which application was refused.
27This was clearly an early plea. It has utilitarian benefits and reflects your acceptance of responsibility and willingness to facilitate the course of justice.
Personal circumstances
28You are now 31 years old, and you were 30 at the time of the offending.
29You grew up in Melbourne. Your parents, who have supported you here in court, separated when you were very young. You recall alcohol and violence in the home from your early years. You have, nevertheless, maintained contact with both your mother and father, as well as your stepmother. You have five step-siblings. You do not currently have any partner or children.
30You did well at school, attending a private school until you were 15, then completing Year 12 in the public system. You recall being a good student and reported no difficulties there. Since finishing school, you trained as an electrician and concreter, in which trades you have worked consistently in the construction industry since.
31You report being introduced to drugs by an uncle on your father’s side at about age 15. Your use of stimulants such as methamphetamine grew over time, and you report heavy use at the time of the offending. Such a habit helps to explain your criminal history, and you admit a lengthy criminal history.
32In 2014 for trafficking methamphetamine, dealing with proceeds of crime, and offending whilst on bail, you received a CCO without conviction.
33In 2016 you were fined with conviction for criminal damage. Later in 2016, when you were 24 years old, on a breach of the CCO you were placed on another CCO, including drug treatment conditions, and sentenced for burglary, theft, breaching bail, proceeds of crime and driving charges. Later again in 2016, you were gaoled for breaching those CCOs along with drug and dishonesty offences.
34In 2017 you were again gaoled and on release placed on a further CCO, including treatment conditions and judicial monitoring, all for possessing a firearm while being a prohibited person, drug offences, burglary, theft, breaching bail and driving charges. On appeal that sentence was reduced to a CCO alone.
35In 2019 you were convicted and fined for possessing drugs and breaching bail. In 2020 you were again imprisoned and placed on a further CCO for possessing firearms, ammunition, drugs, and stolen goods. The CCO specifically provided for alcohol and other drug treatment.
36I must consider your progress on previous orders, and whilst you are not to be punished again for your past offending, I find that it requires that I place greater weight on deterring you from future like-offending and the need to protect the community.
37Forensic psychologist Dr David Ball assessed you and provided a report dated 9 April 2024 (Exhibit 1). He stated that your answering of questions during testing provided an invalid profile. His opinion, therefore, was based on your self-report. He found that you did not present with any mental illness or other symptoms or disorder, including any drug-related disorder. He said you expressed remorse for the effects your offending has had on your family, but I note there was no mention of the effects on victims of your crimes. You said to him that you were sick of offending.
38I note your stated attitude towards rehabilitation to be a good start. However, it remains untested, and you have made only limited progress on previous rehabilitative orders. The true prospects of your rehabilitation, in my view, in light of this, will only become clear once you have engaged in an intensive program of counselling and other treatment, including testing, so as to address the deep underlying causes of your offending.
39In the hope of being granted bail in early 2023 you were assessed by drug counsellor Maria Hutchinson dated 12 April 2023 (Exhibit 3). She reported you to be at a contemplative stage in your approach to needing treatment. She recommended a residential program as an appropriate model for treatment for you, which I find to be consistent with the level of your entrenched substance use and offending.
40You have engaged in courses, including drug courses in custody, which I find to be positive indicators. These include some 27 sessions certified by a qualified drug facilitator. Further, you have completed other work and personal development courses not related to drugs (Exhibit 4). These are all consistent with Dr Ball’s assessment of your good intellect and school achievements and I accept that you have the capacity to learn and change.
41Your family and friends have supported you with written references (Exhibit 2). They include your parents, Jarmila Dakic, Milan Dakic, as well as Bojan Vlajic, Kimberly Iles and Lela Sember. They all speak of your good underlying traits and their hope that you can deal with your problems and return to them as the person they once knew and loved. Mr Nebojsa Blagojevic provided a work reference, stating that when you are well you work hard and that he will provide you a job on your release. This level of community support is important if you are to capitalise on successful drug treatment down the track.
Sentencing issues
42The maximum penalty for assisting an offender is five years' imprisonment. For trafficking a drug, it is 15 years on each charge. For possessing a firearm or related item contrary to a firearm prohibition order it is 10 years each. For possessing a precursor chemical, it is five years.
43For possessing a drug, it is five years or only one year if it is not for the purpose of trafficking. The prosecutor conceded that the possession of small amounts of meth and MDMA in Charge 2 could not be said to be for that purpose and so will attract the lower maximum of one year. I am not positively satisfied, however on balance, that the other drugs the subject of the possession charges were not related in any way to trafficking, and so a maximum of five years each will apply to them.
44The maximum penalty for possessing money suspected to be proceeds of crime, the summary offence, is two years, and for possessing a Schedule 4 poison it is 10 penalty units.
45The prosecutor submitted that a prison term attracting a non-parole period was necessary in this case and your counsel conceded as much.
46Assisting an offender who has committed a serious indictable offence is itself serious. In your case you were present when the victim was shot.
47Your counsel submitted that your conduct was less grave than other cases where, for example, the assister hides evidence or threatens witnesses. However, I find your offending to be of moderate gravity because you were present when the gun was fired, you appreciated that the victim was hit and must have appreciated the serious consequences that may flow from such a shooting, even if you did not know the specific medical complications that in fact followed. Rather than rendering assistance to the victim, which I accept you are not to be punished for, you assisted the shooter to avoid responsibility, which you are to be punished for. It was conceded that this event occurred in a criminal milieu that made it more serious than if you were caught unawares by a friend's conduct and in panic ran away with them.
48Your conduct is not made less serious because of some suggestion by your counsel that Mr Windsor had a bad character. There was no evidence of that and no suggestion that it played any part in your attitude or purpose at the time. I will sentence you on the agreed factual basis alone, as set out by the prosecutor, with which your counsel agreed.
49The possession of firearms and related items by a person subject to a firearm prohibition order is a serious offence that must attract stern consequences. The danger such weapons can pose to others is considerable. While the long arms were at the time inoperable, the handgun was loaded and lethal. The fact of the prohibition order makes what is ordinarily serious into something that must attract a higher penalty. You have previously been convicted of possessing a firearm and have served a prison term for doing so.
50Your possession of the handgun in circumstances where you were also trafficking drugs is more serious, even if having the gun was only incidental to the trafficking and not directly related. I find your culpability for this offence to be high.
51Trafficking in drugs is plainly serious. I find your culpability for the trafficking in this case to be high. You had multiple substances in multiple locations, suggesting a degree of sophistication and organisation. The quantities of 1,4-butanediol and methamphetamine were close to a commercial quantity of those drugs.
52You have previously been sentenced for trafficking in 2014, you breached that CCO, had it varied, and ultimately it was cancelled, and you were imprisoned for it in 2016. From 2014 through to 2020 you have been found guilty and convicted of possessing a variety of drugs and weapons.
53I do not, however, elevate the seriousness of your trafficking because of the firearm. You are not to be punished twice for the fact that both offences arise in the same circumstances.
54Your counsel submitted that you should be sentenced with greater leniency because you commenced using drugs in your teens before you could bring an adult mind to the question. This may well be a significant matter when sentencing somebody for trafficking to support their out-of-control habit, but you are not in such a position. The numbers of drugs and their quantities mean that the principles in Lacey[1] and other like cases, carry less weight, albeit not no weight.
[1] [2007] VSCA 196.
55The need to deter others from offending such as this is of significant importance. You also need to be deterred specifically from repeating such conduct given your history. The term of imprisonment is also intended to denounce your conduct and to impose just punishment in keeping with current sentencing practices.
56I will order a degree of concurrency between your sentences to reflect the totality of your offending and to avoid a disproportionate total, and I acknowledge that you have been in custody now non-stop since 9 March 2023.
57I have taken into account that your guilty plea on the first indictment was entered at a time when this court was not yet free of a Covid-related backlog of trials and so I have aimed to make this plain in a reduced sentence.
58I accept you have impressed your family and others close to you that you have made gains in your attitudes towards your offending. However, given your age and criminal history, whether this represents a real change towards rehabilitation, only time will tell.
59As your counsel said during the plea, it will depend on whether you can stay away from drugs, and your history shows that this is more than a question of whether you want to change, you must demonstrate your commitment by doing so.
60Accordingly, I find your prospects for rehabilitation are guarded.
61On the first indictment, Charge 1, assist offender, I sentence you to 1 year 6 months' imprisonment.
62On the second indictment, I sentence you as follows:
Charge 1, trafficking 1-4 Butanediol, 2 years 3 months;
Charge 11, trafficking Cannabis, 18 months;
Charge 15, trafficking Methylamphetamine, 2 years 3 months;
Charge 16, trafficking Cocaine, 2 years;
On Charges 5, 6, 8, 10 and 17, possessing drugs, I impose an aggregate sentence of 13 months;
Charge 2, possessing small quantities of methamphetamine and MDMA, you are convicted and discharged;
Charge 4, possessing a precursor drug, 6 months;
On Charges 3, 7 and 14, possessing ammunition, 6 months (aggregate);
Charge 9, possessing a shotgun, 14 months;
Charge 12, possessing a rifle, 14 months;
Charge 13, possessing a handgun, 2 years 6 months;
On the related summary offence 15, possessing the money, 6 months;
On the related summary offence 23, possessing the poison, you are convicted and discharged.
63The sentence on Charge 13, the 2 years 6 months for possessing the handgun, is the base sentence.
(a) 6 months of the sentence on Charge 1,
(b) 4 months of the sentence on Charge 11,
(c) 6 months of the sentence on Charge 15,
(d) 5 months of the sentence on Charge 16,
(e) 2 months of the sentence on Charge 9, and
(f) 2 months of the sentence on Charge 12
are to be served cumulatively upon each other and upon the base sentence, making a total sentence on the second indictment of 4 years 7 months.
64Eight months of the sentence on the first indictment is to be served cumulatively upon the total sentence imposed on the second.
65The total effective sentence is 5 years 3 months.
66I fix a non-parole period of 3 years 3 months.
67I declare that you have served 406 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.
68In accordance with section 6AAA of the Sentencing Act 1991 (Vic), but for your guilty plea, I would have imposed 7 years and fixed a non-parole period of 4 years 4 months.
Ancillary Orders
69On the first indictment the prosecutor seeks forfeiture of the VW Golf under s33 of the Confiscation Act, and the cartridge casing found at the scene under s151 of the Firearms Act. You do not oppose them, and I make the orders as sought.
70On the second indictment forfeiture is sought under s33 of the Confiscation Act of the cash and mobile phones seized. Forfeiture under s151 of the Firearms Act is sought of the ammunition and firearms and disposal is sought under s78 of the Confiscation Act of the drugs, phones and other related items. You did not oppose those orders and I make them in the terms sought.
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