Director of Public Prosecutions v Demiri
[2015] VCC 1009
•22 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-15-00700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IBRIAM DEMIRI |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 July 2015 |
| DATE OF SENTENCE: | 22 July 2015 |
| CASE MAY BE CITED AS: | DPP v Demiri |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1009 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – blackmail – possession of a general category handgun – reckless conduct endangering serious injury – possess cartridge ammunition – sentenced to immediate term of imprisonment and community correction order
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991
Cases Cited:R v Verdins [2007] 16 VR 269; Boulton v R [2014] VSCA 342; Hutchinson v R [2015] VSCA 115
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R. Stransky | Alphastream Lawyers |
HIS HONOUR:
1Ibriam Demiri, you have pleaded guilty to the following charges on indictment No. E13983866.
2On 1 December 2014 with a view to gain for yourself, made an unwarranted demand with menaces of Chris McKearney, contrary to s.87(1) of the Crimes Act 1958 carrying a maximum term of imprisonment of 15 years.
3On 1 December 2014 you possessed a general category handgun that was not registered contrary to s.7(b)(1) of the Firearms Act 1996 carrying a fine of 600 penalty units or a maximum term of imprisonment of seven years.
4On 1 December 2014, without lawful excuse, you recklessly engaged in conduct, namely firing a handgun through the window of a residential house that may have placed Chris McKearney in danger of serious injury contrary to s.23 of the Crimes Act 1958, carrying a maximum term of imprisonment of five years.
5You have also pleaded guilty to a summary charge that on 9 February 2014 you possessed cartridge ammunition while not the holder of a license or permit contrary to s.124(1)(a) of the Firearms Act 1996 carrying a maximum penalty of 40 penalty units.
6You are married to Ilka Abdulovski, also known as Kate, through a traditional Albanian ceremony. You are not married in the formal sense of having gone through a ceremony recognised by Australia's domestic laws. However, you and your wife have always referred to each other as if you were married. At the time of your offending you resided with your wife and your three children at Dandenong in rented premises.
7Mr McKearney engaged in an affair with your wife in early 2012. You uncovered the affair. On 20 July 2012 you telephoned Mr McKearney. During that conversation you did not identify yourself but said words to the effect of "You know who this is". You later said that you "would get even".
8During the plea made on your behalf I was informed that despite your wife's infidelity, you did what you could to maintain your marriage. It seemed to you that your marriage was working out well until you found a receipt of a motel booking for December 2014 in your wife's belongings. You concluded that your wife and Mr McKearney had met in secret for the purpose of continuing the affair. I was informed that you were agitated.
9You rang Mr McKearney on 1 December 2014. You said words to the effect of "You know who this is". It was followed by you making a blackmail demand. You said words to the effect of "I want $70,000 cash or I go to your wife". McKearney replied with words to the effect of "Good luck, you're not getting it. Go ahead and tell her". You then said you would have some fun with McKearney's wife and friends on Facebook, which I understood to mean that you would expose the affair to them in that way. Those facts go to Charge 1, blackmail.
10On the same day, after returning to your house, you then drove to the McKearney's house. McKearney saw you outside his house from the front study window. You knocked on the front door. McKearney opened the door. You were apparently shocked to see McKearney standing in front of you. While this was happening McKearney was ringing Triple-0. Your counsel submitted that during the verbal exchange between yourself and McKearney, that McKearney taunted you about the affair he had with your wife and made salacious comments to that effect.
11You had parked your white Toyota Hilux in McKearney's driveway about ten metres from the front door of his house. You returned to your vehicle. You opened the driver's side door and reached under the seat. You then walked back to the front door armed with a pistol. These facts to go Charge 2, possess a general category, unregistered handgun.
12When you were about three to four metres from the front study window of McKearney's house, McKearney observed the pistol. He shut the front door of his house and locked it. He ran down the hallway and as he did so he heard a loud pop. A neighbour of McKearney described the discharge of the pistol as "like a big bang". You had obviously raised the pistol, aimed it at the window of the study, pulled the trigger and discharged a bullet which went through the window pane and struck a bookshelf on the other side of the room. Those facts go to Charge 3, reckless conduct endangering serious injury.
13McKearney telephoned the police and informed them of what had occurred. In the meantime you left in your vehicle. You told your wife what had occurred. The police rang her, no doubt in an attempt to locate your whereabouts. She told the police that you intended to hand yourself in, which is in fact what you did.
14At about 10.10 am you handed yourself into the police at the Dandenong police station. Your clothing and Apple iPhone were seized. You were subject to gunshot residue testing which returned a positive result. However, it has been conceded that the particle found on your right palm might have come from sources other than your discharge of the firearm at the McKearney's house.
15You were taken to your house by investigating police. You then took them to the garage at your house where the pistol and ammunition were located. Those facts go the charge of possess cartridge ammunition. An attempt was made to formally interview you at 11.01 am on 1 December 2014. You exercised your right to seek advice. Subsequently, you made a no comment record of interview.
16You have no significant prior history. You were charged with unlawful assault and on 8 February 2000 the matter was adjourned without conviction and you were ordered to pay $300 into a court fund. You were charged with resisting police and on 16 November 1994, without conviction you were fined $250. You were charged with being drunk in a public place, resist arrest and hinder police. On 29 April 1984 you were convicted and an aggregate fine of $500 was imposed.
17Your counsel submitted that there is background to your offending which creates the context in which I must consider your offending. I will not set out that background to the same extent as was submitted to me, but that does not mean that I have not considered the whole of it. I propose to summarise it to capture the main factors which, it is submitted, should influence the sentence which I should impose upon you.
18You were born on 7 March 1974. You are now 41 years of age. You were married but are now separated. You have three children. You have a daughter who is about 16 years of age and twin sons who are about 13 years of age. You have a very good working record. You commenced working as a machine operator at Corex Plastics. You worked there for an uninterrupted period of nearly 23 years. That employment came to an end as a result of you being remanded in custody for these charges.
19You and your wife sold your house in Keysborough in late 2013. You agreed to rent until you were both at a position, financially, to develop a block of apartments on a property you own in Dandenong. Despite irreconcilable differences now apparent in your relationship with your wife, you have been able to engage in a reasonable relationship with her to the extent that it remains your joint intention to develop the property.
20You spent 87 days in pre-trial custody before making the successful application for bail. Your counsel submitted that you were quite prepared to sit in custody awaiting the day upon which you were presented before a court for sentencing. You had to be encouraged to make an application for bail by your counsel and your solicitor.
21You are now living with an aunt which is one of your bail conditions. You have since obtained alternative employment and you are working full time. You contribute about $1000 monthly to assist in the maintenance and support of your wife and your children. Your wife worked as a real estate consultant with a real estate agency. It was through that employment that she met McKearney. They commenced an affair some three years or so prior to your offending.
22You discovered the affair, but notwithstanding your wife's infidelity you maintained your marriage until you found the motel invoice. It was at that point that you appreciated that the affair had either continued or had recommenced.
23Your counsel submitted, essentially, that you became overwhelmed by the breakdown of your marriage and the knowledge that your wife was continuing with an affair with McKearney. You were examined by Mr Jeffrey Cummins, consulting clinical and forensic psychologist, on 7 February 2015 at the Melbourne Remand Centre.
24You told him at the time of your offending you were in a state of intense confusion. You wanted your wife to admit her affair to your Albanian community, but at the same time you did not want either of you to suffer criticism and ridicule from your community. You also told Mr Cummins that you do not hold any ill-will against your wife. Indeed, you told him that you still love her, but acknowledged that the differences between the two of you are now irreconcilable. You appear to have accepted your separation from your wife to the extent that you no longer are concerned whether she is in, or will enter, a relationship.
25Mr Cummins made an assessment of your mental state. In summary he concluded that you are suffering from an adjustment disorder with mixed anxiety and depressed mood. You told him that you had consulted your general practitioner because you are feeling low and depressed. He apparently prescribed you an anti-depressant which you took intermittently. In relation to your offending Mr Cummins concluded that your mental health, perception, problem solving ability and ability to think rationally was compromised to some degree because of the affair your wife was having with McKearney and your inability to bring that affair to an end. He was of the opinion that your moral culpability was, therefore, reduced. Your counsel disavowed any reliance on R v Verdins.[1]
[1] [2007] 16 VR 269
26Mr Cummins arrived at a number of conclusions which are of some importance. In particular, that you would find undergoing a period of imprisonment to be more onerous because of your domestic circumstances. That is because your offending was "situationally motivated". That he would not expect you to offend again and that the risk to the McKearney family from you is minimal.
27Three references were tendered attesting to your good character. Your aunt provided a character reference in which she attests to the fact that you have been, and are, a pleasant, hardworking and committed family man. Your close friend, George Pereira, provided a character reference attesting to the closeness of his, and his family's friendship with you. He considered you to be a good, honest and caring person, a great father and a caring husband. He also attested to your assistance to him in his work with his own ethnic community and with charitable work. The third character reference is from a friend, Elvis Korchari, who attested to you being a loyal friend and an easy going and selfless person.
28Each of the providers of the character references attested to the fact that you have made serious statements of remorse. You have, among other statements, expressed your intense regret for what you did, the shame you feel because of what you did and that you have let down your family and friends. You made similar statements of remorse to Mr Cummins. You told him that what you did was an unacceptable act, that you regret having gone to the McKearney house and that you regret having attempted to blackmail Mr McKearney. Further evidence of your remorse and sense of shame is demonstrated by the fact that you sat in custody for 87 days and had to be encouraged to make a bail application.
29I have little hesitation in accepting that prior to 1 December 2014 you were a hardworking, decent, family man. I also have little hesitation accepting that what occurred on that day was driven by the discovery of your wife's continuing infidelity. However, there are some troubling aspects of your conduct on that day.
30You rang McKearney at about 7.40 am, not to have him admit the affair with your wife, but to exact a penalty by demanding that he pay you a sum of money or else you would confront his wife and inform her of the affair. That was a calculating act. It carried with it a threat that if the money was not paid you would take a step which could potentially destroy his marriage.
31Your counsel submitted that the conversation, which constitutes the blackmail, lasted only nine seconds or thereabouts and was dismissed out of hand by McKearney. I do not accept that the length of time it took to make the demand is very relevant. The fact is you made a demand which you expected would potentially lead to you being paid a sum of money by McKearney to conceal his affair with your wife. It appears to me that following the telephone call you were determined to confront someone at the McKearney house. Your counsel submitted that you did not expect that McKearney would be at his house. That can only have meant that you expected Mrs McKearney to be at the house.
32The most troubling aspect of what you then did is that you armed yourself with a loaded pistol. You have not offered any acceptable and rational explanation as to why you armed yourself with a pistol, except that you made a bizarre link between the death of your father and the risk that you might suffer a similar outcome when you confronted either of the McKearneys. You also told Mr Cummins that you armed yourself with a pistol in case the situation at the McKearney house got out of control.
33I should pause here to record that your father ran a gun shop in Sydney Road, Brunswick. He was tragically shot and killed by two of his employees who intended to incapacitate him with a firearm and then rob him. That occurred when your father was 32 years of age, when you were only three years of age. You told Mr Cummins that you purchased the pistol about 20 years ago on the black market as a means of protection from the two employees who killed your father should they seek some revenge directed to you and your family.
34It appears to me that whether you were suffering from a diagnosable psychiatric disorder or were situationally motived, you knew what you were doing. The attempt at blackmail was a calculated act. It was closely followed by the decision, which you made, to then go the McKearney house. I do not know what you did between the time you made the telephone call to McKearney at 7.40 am and your arrival at his house at 8.30 am, but not a great deal of time elapsed.
35It would appear that you were determined to confront the McKearneys to vent your anger and frustration, but the most worrying aspect of what you then did was arming yourself with a pistol before you went to their house. The most beneficial view of your conduct is that you were utterly foolish in arming yourself with a pistol, which you left in your vehicle, when you went to the front door of the McKearneys’ house.
36At that point in time it would appear that you intended to have words with one of the McKearneys. I accept that there was a flashpoint when you and Mr McKearney probably had an angry exchange which led you to arm yourself with a pistol and return to the front of the McKearney house. It would appear that you intended to scare Mr McKearney by displaying the pistol openly. He took fright, shut the door of his home, locked it and ran to the rear of his house.
37You wanted to demonstrate your anger by then firing a shot through the front window of the study of the McKearney house. You did so knowing that there was grave risk that you might place persons in the house in danger of suffering serious injury. You are fortunate that there was no-one in the study in the way of the bullet. The force of the bullet and the damage it could have caused to a person in the way is obvious from the damage it caused to a bookshelf on the other side of the room.
38The gravity of the charges on the indictment are demonstrated by the fact that they carry significant maximum terms of imprisonment. The prominent sentencing consideration in the case of your offending is general deterrence, particularly in relation to the charge of reckless conduct endangering serious injury.
39A handgun has a particularly sinister quality about it because it can be easily concealed and transported. The sentence I impose must operate as a powerful factor in deterring other individuals who might be tempted to possess and use firearms, lest they think that doing so is only likely to attract light punishment.
40There must also be an element of specific deterrence. You must be deterred from thinking that possessing a firearm, for reasons associated with your own safety, or for some other purpose, is permissible conduct. However, based on the submissions made on the plea, I am disinclined to think that you are likely to possess a firearm again.
41The sentence must be moderated by a number of factors. You surrendered yourself to the police about two hours after you confronted McKearney at his house. You surrendered the pistol and ammunition. You did not make an application for bail and subsequently spent 87 days in pre-sentence custody. Your counsel submitted that you were quite prepared to sit in custody awaiting the day on which you were presented before a court for sentencing. You were cooperative at almost every step along the way with investigating police, even though you made a no comment record of interview, which is not something I will weigh against you.
42You entered a plea of guilty at the earliest possible opportunity. You saved the State the cost and expense of a trial and allowed witnesses to avoid the exposure to the trauma that is inherent in a trial. You have expressed remorse in a significant manner, which is demonstrated by not only your conduct from the time you surrendered yourself to police, but throughout.
43The persons who provided references know you well. They have provided references which are very persuasive not only of your expressions of remorse, but also your previous good character. You have also come to grips with the gravity of your offending and the need to put the circumstances which led to your offending behind you. You appear to have resumed a reasonable relationship with your wife despite her infidelity. You do not appear to be someone who is likely to offend again and certainly not in a manner consistent with what you did on 1 December 2014. I accept that you have excellent prospects for rehabilitation.
44Mr McKearney provided a victim impact statement, as did Mrs McKearney. Your counsel submitted that there are aspects of the victim impact statement which are inadmissible. I have been careful to consider only those aspects of the victim impact statements which refer to the impact upon the McKearneys which is linked to your conduct on 1 December 2014. Understandably, and I think it is sufficient to say only this, you put the McKearneys in a state of fear of you and in particular, the prospect of again being confronted by you armed with a firearm.
45Your counsel submitted that I should impose a Community Corrections Order rather than a term of imprisonment. I am aware of the decision of Boulton v R[2] and the observations of the Court of Appeal that the introduction of Community Corrections Orders has changed the sentencing landscape, to the extent that the conventional wisdom of whether prison is really the only option in sentencing must be rethought.
[2] [2014] VSCA 342 (‘Boulton’)
46Furthermore, the Court of Appeal emphasised the grave disadvantages of imprisonment and the unique advantages of a Community Corrections Order which allows punishment to be imposed while at the same time advancing an offender's rehabilitation in a way that imprisonment cannot. It is well understood that imprisonment must always be a last resort when consideration is given to what constitutes a just sentence and that all other sentencing options must be considered before a sentence of imprisonment is imposed.
47However, the availability of a Community Corrections Order as a viable sentencing option and the observations of the Court of Appeal in Boulton cannot be taken to mean that s.5 of the Sentencing Act 1991 has a significantly reduced application and that other sentencing principles are significantly less relevant, particularly where the offending is serious. Nor does it mean that the instinctive synthesis involved in the process of arriving at a just sentence is no longer part of the methodology of sentencing.
48I have considered the gravity of your offending and have moderated the sentence that I will impose upon you by having due and full regard to all of the factors which go to mitigation.
49I have concluded that you should be sentenced to an immediate term of imprisonment. The Court of Appeal in Hutchinson v R[3] observed that a Community Corrections Order is not a "get out gaol free" card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of those purposes is to punish an offender to the extent, and in a manner, which is just in all the circumstances. I consider that reasoning to apply to the circumstances of your offending.
[3] [2015] VSCA 115
50Furthermore, after you have served a term of imprisonment you are to be released on a Community Corrections Order for two years. I would ask you now to stand please.
51On the charges of blackmail, possess a general category handgun and reckless conduct endangering serious injury, you are sentenced to an aggregate term of imprisonment of 12 months and then to be released on a Community Corrections Order for two years with the following conditions.
52That you engage in any program that addresses factors relating to your offending and that you be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
53On the charge of possess cartridge ammunition you are convicted and fined $250.
54The 94 days you have served in pre-sentence custody is to be reckoned as part of the sentence of imprisonment. If it were not for your early plea of guilty I would have sentenced you to three years imprisonment with a minimum of two years before you would become eligible for parole. I would also have imposed the same sentence on the charge of possess cartridge ammunition, which I have already referred to.
55I must now inform you of the terms of the Community Corrections Order and you must listen to the following very carefully. In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders.
56Those being, that you must not commit any offences during the period that the Community Corrections Order is in force - being any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to, and receive visits, from a Community Corrections officer. You must report to the Community Corrections centre at its office in Dandenong within two clear working days of the relevant order coming into effect.
57Also, 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, within 48 hours of that occurring. Finally you must obey all lawful instructions from and directions of Community Corrections officers.
58Mr Demiri, do you understand the conditions I have imposed and the general terms that apply?
59OFFENDER: Yes, Your Honour.
60HIS 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 a direction by the Secretary is 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. Do you consent in those circumstances to the imposition of such an order?
61OFFENDER: Yes, Your Honour.
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