Director of Public Prosecutions v Dejanovic

[2015] VCC 1680

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00536

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEJAN DEJANOVIC

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 November 2015
CASE MAY BE CITED AS:	DPP v Dejanovic
MEDIUM NEUTRAL CITATION:	[2015] VCC 1680

REASONS FOR SENTENCE
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Subject: Aggravated burglary – armed robbery – false imprisonment – carry an unregistered handgun
Catchwords: sawn-off shotgun
Legislation Cited: 
Cases Cited: R v Verdins [2005] VSC 479 : R v Renzella[1999]VSCA 85
Sentence: 7.3 years non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss S.F. Thomas
For the Accused	Mr M. Goldberg

HER HONOUR: 

Charges

1Dejan Dejanovic, a jury has found you guilty of one count of aggravated burglary, three counts of armed robbery, three counts of false imprisonment and one count of carrying an unregistered handgun.  The maximum sentence of aggravated burglary and armed robbery is 25 years' imprisonment.  The maximum sentence for false imprisonment is ten years' imprisonment and for carrying an unregistered handgun, it is seven years or 600 penalty units.  In addition, you pleaded guilty to one charge of theft on a separate indictment.  The maximum sentence for this offence is a sentence of imprisonment for ten years.

Plea Indictment

2Dealing firstly with the plea indictment, the circumstances relating of the charge of theft were referred to in some detail by the prosecutor at your plea hearing.  I will not repeat them all here.  For the purpose of this sentence, it will suffice to say that on 6 February 2013, you were given permission by Patrick Weinstein to drive his Audi motor vehicle, registration XWD 727.  However, by 7 April 2013, you were well aware that Mr Weinstein had withdrawn his permission for you to drive the vehicle but you continued to assume the rights of the owner by driving that vehicle.

Trial Indictment

3Moving on to the circumstances in relation to the trial indictment.  On 22 April 2013, together with Alison Hancock, you drove to a block of flats on the corner of Green and La Trobe Street in Windsor and parked in a private car park. 
Ms Hancock walked with you to a nearby milk bar in Union Street and waited for you there while you went to a premises at 63 Union Street, Windsor. 

Charge 1

4Charge 1 of aggravated burglary relates to your actions of unlawfully entering the premises.  At the time that you entered the premises, the complainants, Travis Yeoman, Sasha Miller and Elaine Marshall were present.  Your head was covered by a cloth described as being either a balaclava or a scarf.  You were carrying a sawn off shotgun and a crowbar.

Charge 8

5Charge 8 of carry an unregistered general category handgun relates to the fact that you do not hold a firearm licence and the firearm was not registered.

Charge 6

6Charge 6 of false imprisonment relates to your actions in unlawfully detaining Sasha Miller when you entered her bedroom and pointed the firearm in her face and to her not to fucking move.  You then ordered her out of the room and went with her to Travis Yeoman's bedroom.

Charge 7 and 4

7Charge 7 of false imprisonment and Charge 4 of armed robbery relate to your actions in Mr Yeoman's room.  You pointed the gun at him, detaining him against his will.  You demanded money and took his laptop and placed it into a bag.  After instructing Mr Yeoman and Ms Miller to stay where they were, you went into Ms Marshall's bedroom.

8Ms Marshall was in the room, watching television.  You pointed the firearm at her head and took her MacBook Pro laptop.  These facts related to Charge 5 of armed robbery. 

Charge 8

9Charge 8 of false imprisonment relates to the fact that from the time you entered Ms Marshall's room, she was unlawfully imprisoned and detained against her will.

10You then ordered Ms Marshall to go to Mr Yeoman's bedroom where you took her mobile phone off her.  When you had all three complainants in Mr Yeoman's bedroom, you continued to threaten and abuse him and demanded money and drugs whilst still holding the firearm.  Mr Yeoman told you that there was money in the garage, to get you away from the two women and create an opportunity to escape.  You told the two women not to move or go anywhere and you went to the garage.  Mr Yeoman took the opportunity to run from you and scale the fence using a chair.  He escaped into Stewart Street where he encountered Ms Hancock who refused to let him use her mobile phone to call 000.  He ran around the corner into Union Street where he convinced a by passer to ring the police.

Charge 3

11Charge 3 of armed robbery relates to your actions after Mr Yeoman had escaped.  You returned to his bedroom.  Ms Miller and Ms Marshall were still in the bedroom.  You told them not to move.  You left the room and came back with Ms Miller's iPad 2 and red keyboard which you put in your backpack and then left the premises.

12Mr Yeoman observed you climbing the fence at the rear of the house.  He followed you to where you parked the Audi motor vehicle and he observed you get into the vehicle and remove the balaclava from your face.  He memorised the registration number as you drove away.  When he returned to the house, he told Ms Miller that he had the licence plate number, she gave him a piece of paper and he wrote it down.  The police arrived shortly afterwards.

Post Offence Conduct

13In your trial, the prosecution relied on post-offence conduct, which included:

·   CCTV footage of you dumping bag containing various items connected to the robbery in the laundry at the Mint Hotel. 

·   a green canvas bag containing the firearm wrapped in a black T-shirt and a quantity of shotgun cartridges left inside the Audi vehicle,

·   evidence of a witness whom you lent the vehicle to that you told her “whatever you do, do not drive the car around Prahran tonight”. 

·   Telephone records showing that your mobile phone was used in the Windsor area at the time of the offending.

14On 25 April 2013, you attended Melbourne West police station and you were interviewed. You exercised your right not to answer questions.

Victim Impact Statements

15It is apparent from the victim impact statements that both Ms Marshall and Ms Miller were terrified of your actions on 22 April 2013 and that your actions continue to affect them to this day.  Both young women showed considerable courage and fortitude in reading their statements to the court.  Ms Marshall gave evidence at the trial that during the incident, she had been scared and had become hysterical.  Both Mr Yeoman and Ms Miller gave evidence supporting her with respect to this.  They described her as crying and appearing very upset.

16It was obvious from Ms Marshall’s victim impact statement that your offending has greatly affected her life.  Ms Marshall said there was not a day that goes by that the incident on Monday 22 April does not impact on her life.  She suffers from nightmares, flashbacks, stress, anxiety and depression.  She has also been diagnosed as suffering from Post-Traumatic Stress Disorder.  She suffered financial loss due to the time she took off work because she was too emotional to work.

17While Ms Miller showed considerable fortitude during the incident and tried to calm Ms Marshall down, she also has been greatly impacted by your offending.  She has been diagnosed with Post-Traumatic Stress Syndrome with symptoms including fear, hypervigilance, low mood, poor sleep and anxiety.  In her impact statement, she described feeling extremely alone and lost in the biggest challenge she had ever faced.  Her situation was made worse by the loss of her laptop, iPad and iPhone as these devices held all her work contacts.  She had worked as an elite personal trainer and life coach with clients, including some of Australia's top international models.  The loss of her equipment and the effects of the offending meant that she was not able to work.  This affected her financially and she was unable to pay parking fines and had to go to court.

Personal circumstances

18Your personal circumstances are set out in some detail in a report dated 31 August 2015 from Warren Simmons, a psychologist.  You were born in Carlton on 23 June 1976 and you are now 39 years old.  Your mother was only 15 when she became pregnant and married a man you knew as your father who was a Serbian Orthodox priest.  You know nothing about your biological father.

19Your parents separated when you were 13 and your mother took you with her to Canada and your father followed sometime later to attempt a reconciliation.  However, he threw boiling oil on your mother during an argument and this apparently caused her significant burns.  You had to give evidence about this at a court when you were just a young child and Mr Simmons reported that this was a traumatic experience for you.

20You eventually moved back to Australia where you lived alternatively with your father and mother.  You left school after completing Year 5 and found employment as a tyre retailer where you worked for six years and you also worked a second job tending bars.  After finishing this job, you worked as a salesman at a chemical company for two years, rising to the position of sales manager.  You were also duty manager at a hotel for a number of years before going to work at your uncle's restaurant in Sydney.

21After 2003, you worked in a tyre company in Sydney before you moved on to develop your own business in selling and fitting truck tyres, but towards the end of 2006, your father became unwell and spent some six months in intensive care and hospital before passing away.  Mr Simmons was of the opinion that his death had a significant effect on you.  It appears that not long afterwards, you lost your business, your fiancé left you and it was then that your life went into a downward spiral and your drug use increased.

22In fact, you have a long history of drug abuse, starting with using amphetamines on the weekends when you were 13 and increasing to daily use by the time you were in your early 20s.  You have made some efforts to kick the habit in the past, including a three month rehabilitation at The Glen in New South Wales and a program in 2007 with the Salvation Army Bridge Program in Sydney.  Unfortunately, these programs did not successfully stop your drug use and when you were arrested for these offences, you were using about half a gram a day. 

23You have 14 prior court appearances with a number of prior convictions relating to your drug use.  However, while there is a prior for recklessly cause injury in 2001 and break and entry back in 96, most of your priors are for driving offences.

24With respect to your mental health, you have a long history of anxiety disorder beginning when you were 18.  Mr Simmons also found evidence of a depressive disorder which appeared to have been present for several years.  In addition to these conditions, Mr Simmons was of the opinion that you appeared to have developed acute symptoms of Post-Traumatic Stress Disorder as a result of an assault in custody.  You told him that you experienced heightened levels of anxiety whenever people came to the door of your cell, you felt a tightness in your chest, you had clammy hands, your heart rate increased and you could feel it pounding in your chest.  Although these symptoms have been present since you have been in custody, they have increased since the assault.

Mitigating Circumstances relied as injury received in Metropolitan Remand Centre Riot

25In his plea on your behalf, this was one of the matters that your counsel relied on in mitigation of your sentence.  The history that he provided to the court was that on 2 July 2015, when the riots took place at the Melbourne Metropolitan Remand Centre, you were in an isolation cell due to a threat regarding a debt.  A number of men opened your cell door and you were beaten up by them.  In this assault, you suffered significant bruising and an injury to your left shoulder for which there was an expectation that surgery would take place in the near future.  In fact, your original plea hearing was adjourned in order to obtain evidence related to this injury.

26The court was provided with a referral letter from the MRC medical officer to St Vincent's Hospital on 2 July 2015.  In this referral letter, your injuries were described as including a well demarcated round bruise on the top side of the left leg, a haematoma on the lateral right thigh, pain with limited closure of the left hand, swelling of the left arm and over the humerus and a swollen left shoulder girth with marked patterned bruising on the posterior upper arm and torso.  It was thought that there was a possibility of a likely fracture of the left shoulder and right ribs.

27The evidence produced from St Vincent's Hospital revealed that you were admitted to the emergency department on 2 July 2015 where you complained of being injured during the riots.  Your left arm was noted to be swollen and you were unable to fully extend at the elbow.  The injury was described as a soft tissue injury with swelling.  You were provided with medication and a broad sling.  The diagnosis was superficial injury of upper arm.  Your counsel informed the court that you were still suffering pain in your left shoulder and that you had to wear a sling.  It had been arranged for you to see a specialist on 10 November but unfortunately, you had not been made available when he attended.

Restrictive Conditions at MAP

28As well as the injuries you sustained during the riot on 2 July 2015, your counsel relied on the restrictive conditions at MAP after the riots as being a mitigating factor in your sentence.  These included that you had remained in a lockdown environment in the period July to 25 September 2015.  When you returned from St Vincent's Hospital, you had been left in a cell on the floor with six other men for two days.  You had only experienced an open air environment when moving from your cell for a medical assessment.

29You remained at MAP until you were transferred to Port Phillip Prison on 1 October 2015.  From your instructions to your counsel and a letter to the court it appears that the conditions that you are held in at Port Phillip are not that much better.  From 2 October 2015, you had been permitted a total of one hour and 20 minutes per day in a restricted outdoor area and your counsel submitted that your experience went beyond the difficulty ordinarily recognised for prisoners on remand and that these matters should be taken into account in your sentence.

Post-traumatic Stress Syndrome

30Your counsel also relied on Mr Simmons' opinion that you exhibited acute symptoms of Post-Traumatic Stress Disorder.  This was said to be as a consequence of the assault in prison.  It was submitted that this condition would make your time in custody more onerous that it would on a person of normal health.  In addition, he relied on the Renzella Principle with respect to the fact that you have been serving a sentence of 90 days given by the magistrate and dated from 17 October 2013.  This sentence had been in response to a plea of guilty to a charge of breaking and entering.

Totality and Proportionality

31In addition, he relied on the principle of totality and proportionality in submitting that a proportionate sentence could be achieved by imposing a wholly concurrent sentence in relation to overlapping conduct.

Plea of Guilty to theft of Motor Vehicle

32With respect to your charge of theft of a motor vehicle, it was submitted that the plea of guilty should be regarded as arising at the earliest opportunity and the court should take into account that you were initially granted permission to drive the car.  Given the circumstances of the theft, your counsel submitted that a fine would be an appropriate disposition.

Subsequent offending

33Your counsel quite correctly informed the court of three subsequent matters.  You are due to appear before the Melbourne Magistrates' Court on 17 December 2015 for a consolidated plea hearing involving drug offences which took place on 3 August 2014 and between 1 and 10 March 2015.

Rehabilitation

34With respect to your prospects of rehabilitation, your counsel conceded that the existence of subsequent offences undermines the foundation for rehabilitation, however he submitted that given your previous work history, your prospects of rehabilitation were at least guardedly good.  If you could deal with your drug issues, you had sufficient work experience and skills to make a substantial contribution to the community.

Prosecution Submissions

35The sentencing submissions for the prosecution can be summarised as follows.  Your offending was extremely serious and there were three victims.  It was clear that your offending had a significant effect on the female victims, who went through a terrifying ordeal.  The Audi motor vehicle had been used to transport you to and from the premises where you committed the offence.  The court could infer that you used this vehicle in an attempt to avoid detection.  Your pending offences affected your prospects of rehabilitation.  There was not enough psychiatric material for the court to find that you suffered from Post-Traumatic Stress Syndrome as a result of the assault in custody.  However, if the court was to provide you with a sentencing discount in accordance with the principle of Verdins, it was submitted that it should not be a significant one.

36The court could infer that the motive for your offending was to recover money for a drug debt.  There was no evidence to support a claim of assault by prison staff and that you showed no empathy for your victims.

Sentencing remarks

37In sentencing you, I accept that you went to 93 Union Street on 23 February 2013 to recover money allegedly owed by Mr Yeoman.  This is consistent with Ms Miller's evidence that you told her, "I'm here for the guy that you live with," and you asked her to show you Travis' room.  It is also consistent with the statement she heard you make to Mr Yeoman when you were standing over him, that, "This is what happens when you owe people money and this is what happens when you fuck with the wrong people."  Ms Miller was an impressive witness who gave her evidence in a clear and concise manner.  I accept her account of what was said.

38In sentencing you, I have taken into account that with offences of aggravated burglary and armed robbery, the court has made it clear that general deterrence and protection of the community are of particular significance.  Members of the community are entitled to feel safe in their own houses and in entering 93 Union Street uninvited with a gun, there is no doubt that your actions caused Ms Miller and Ms Marshall great fear for their safety.

39The continuing effects of the trauma they went through is something they have had to live with and possibly they will for the rest of their lives.  The seriousness of your crimes is reflected in the maximum sentence of 25 years. 

Mitigating Factors

40However, I have also taken into account all the mitigating factors mentioned by your counsel, including your plea of guilty with respect to the charge of theft, which although it was late, saved the expense of another trial and Mr Weinstein the trauma of giving evidence.  The restrictive conditions at MAP from 2 July 2015.  The injuries you suffered as a result of an assault in custody on 2 July 2015.  The restrictive conditions you have been under since your transfer to Port Phillip Prison on 1 October 2015.  Your Post-Traumatic Stress Disorder, that you have almost no history of prior violent offending and your prospects of rehabilitation.

41With respect to the injuries suffered in custody, as I understand your plea, it was suggested that it was due to two separate incidents, one taking place when prisoners broke into your isolation cell and assaulted you and the other when you were beaten by prison guards.  The court is not in a position to make any finding as to who caused your injuries.  However, given the medical evidence produced and referred to earlier in this sentence, I am satisfied that you were injured by others while you were in custody and that your injuries were as described in the referral letter from MAP by the medical officer to the Alfred Hospital and as described in the Alfred Hospital notes.

42In a letter to the court, you refer to your injury as being a broken collarbone and state that you are taking pain relief twice daily.  Your counsel submitted that you will require surgery in the near future.  While I have no evidence that you have a broken collarbone, I accept that your shoulder continues to give you pain and that an injury of this nature would cause you difficulties in custody.

43In addition, I accept on the balance of probabilities that as a consequence of the assault on you in custody, you suffer to, at least, some degree from Post-Traumatic Stress Syndrome.  No doubt you felt safe and secure in your isolation cell.  It would have been a great shock to you to be assaulted as you were.  While the prosecution disputed that there was enough evidence to support such a diagnosis, given your long history of anxiety, I accept that you would have been more vulnerable to this condition. 

44The irony does not escape me that until 22 April 2013, the victims of your offending would have felt safe and secure in their home.  Post-Traumatic Stress Disorder or Syndrome is the same disorder that the victims of your offending suffer from.  Perhaps there is a glimmer of hope for you in that in your letter to the court you say, "I sit here humbled from experience, the night of the riot, I have never felt so afraid for my life.  I know now and understand what those people must have felt, like having been unfortunately put through a terrifying experience."

45I accept that your Post-Traumatic Stress Syndrome will mean that your sentence will weigh more heavily on you than it would on a person of normal health.  In accordance with the principle in Verdins' case, I have moderated general deterrence.

46With respect to your prospects of rehabilitation, I accept that if you were to successfully undertake further drug rehabilitation courses.  Given your skills and work experience, they are at least guardedly good.  In coming to this conclusion, I have taken into account that in an effort to rehabilitate yourself since you have been in custody, you have completed a number of courses, including programs in anger management, conflict management, communication skills and mood management.  You have also completed a number of certificate course, including in digital media and technology, kitchen operations, planning and hospitality.  Taking into account that you have completed 24 hour relapse prevent drug and alcohol program, a six hour drug and alcohol program and a six hour ice program.

47In sentencing you, I have also taken into account as Renzella time, the 90 days you have recently undergone.  I have been conscious of the need to construct this sentence with regard to the principles of totality and proportionality.

Sentence – Plea Indictment

48Dealing firstly with the plea indictment, on Charge 1, theft of the motor car owned by Mr Weinstein on 7 April 2013, you are convicted and sentenced to a term of imprisonment of six months.  With this charge, I am required by the Road Safety Act 1986 to cancel your licence and disqualify you from driving a motor vehicle.  I cancel your driver's licence and disqualify you from driving a motor vehicle for a period of 12 months.

Sentence – Trial Indictment

49On the trial indictment.  On Charge 1 of aggravated burglary, you are sentenced to a term of imprisonment of five years.  On Charges 2, 3, and 4 of armed robbery, you are sentenced to imprisonment of four years on each charge.  On Charges 5, 6 and 7 of false imprisonment, you are sentenced to two years' imprisonment on each charge.  On Charge 8 of carry an unregistered general category firearm, you are sentenced to 12 months' imprisonment.

50The base sentence is the sentence of five years on Charge 1 of aggravated burglary.  With respect to the armed robberies , I cumulate eight months of each of the sentences on Counts 2, 3 and 4 on the base sentence on Count 1.  I also cumulate two months of the sentence on Count 8 on the base sentence upon Count 1.  With respect to the plea indictment I cumulate one month on the base sentence of aggravated burglary on the trial indictment.

51The head sentence is therefore seven years and three months.  I fix a non-parole period of five years.  I make forfeiture order.  That was by consent.  In terms of 6AAA but for the plea of guilty, I would have sentenced you to eight months to serve to.  Pre-sentence detention is 562 days and that is declared as time served.

52What you did last time is that you said it was six hundred and something days minus the 90 days, I might be wrong.

53MR GOLDBERG:  No, it was not including ‑ ‑ ‑

54HER HONOUR:  It was not.  All right.  So six hundred and ‑ ‑ ‑

55MS THOMAS:  I cannot remember what it was, Your Honour, but it was ‑ ‑ ‑

56HER HONOUR:  Six hundred and forty two days.

57MS THOMAS:  Yes.

58HER HONOUR:  All I did was ‑ ‑ ‑

59MS THOMAS:  Yes.

60MR GOLDBERG:  That was from the - 642 days at today.

61HER HONOUR:  Yes.  So 642 days as of today's date?  Does not include today's date.

62MR GOLDBERG:  No.  Not including today, but up to - factoring in delay.

63HER HONOUR:  Yes.  Factoring in those nine extra.

64MS THOMAS:  Yes.

65MR GOLDBERG:  That's right.  Yes.  Thank you, Your Honour.

66HER HONOUR:  Is there anything else?

67MS THOMAS:  No, Your Honour.

68MR GOLDBERG:  No.

69HER HONOUR:  All right, thank you.

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