Director of Public Prosecutions v Despotoski

[2022] VCC 693

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02343

DIRECTOR OF PUBLIC PROSECUTIONS

v

ILIJA DESPOTOSKI

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Geelong
DATE OF HEARING:	19 May 2022
DATE OF SENTENCE:	3 June 2022
CASE MAY BE CITED AS:	DPP v Despotoski
MEDIUM NEUTRAL CITATION:	[2022] VCC 693

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Intentionally cause injury – aggravated burglary – possession of controlled weapon – spontaneous or unplanned burglary – possession of offensive weapon

Legislation Cited:      Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic)

Cases Cited:DPP v Meyers VSCA 314 [71]; Pearce v The Queen (1998) 194 CLR 610; Worboyes v R [2021] VSCA 169

Sentence:                  792 days’ imprisonment and 12-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Brown	Office of Public Prosecutions
For the Accused	Mr J Barreiro	Geelong Lawyers

HER HONOUR:

1Ilija Despotoski, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum sentence of 25 years’ imprisonment, and one charge of intentionally causing injury, which carries a maximum sentence of 10 years’ imprisonment. You also consented to the uplifting of a summary charge (Summary Charge 6) of possessing a controlled weapon without lawful excuse, and have pleaded guilty to that charge, which carries a maximum penalty of 1 year’s imprisonment or 100 penalty units.

2The offending occurred on 1 April 2021, when you were 28 years old. The circumstances of the offending were set out in the Prosecution Opening and I sentence you on the basis of the facts contained in that document. I summarise those facts briefly.

3At approximately 12:40 am, Krystal Whitlow was asleep with her partner, Austin Feldman, and her child at her residence in Norlane, when she was woken by noises coming from outside the house. Mr Feldman went to check the back door and observed you in the back yard. It is common ground that you were heavily drug affected at the time. You were unknown to Mr Feldman, but Ms Whitlow recognised you as an associate of her mother’s. Mr Feldman went outside and spoke to you. You said something about leaving your phone and belongings in the backyard. Mr Feldman started helping you look for your belongings. He then came back inside and told Ms Whitlow that you were rummaging through the back shed and had said that if you did not get your belongings back, you would start “taking hostages”.

4Ms Whitlow called Mr Duayne Gregg, the victim, to come over as he lived a few houses away. Mr Gregg was 29 years old at the time of offending and unknown to you.

5Mr Gregg arrived, unarmed, shortly after the call and walked into the backyard. He called out to you. You came over to him aggressively and asked him who he was. He replied “I’m Duayne Gregg, who are you?”. You then pulled an ornamental knife from your jacket pocket. The knife was approximately 10 inches long with a stainless-steel blade. Upon sighting the knife, Mr Gregg removed his belt and hit you in the face with it before running inside the house where he grabbed a butter knife. You pursued Mr Gregg into the house (Charge 1 – Aggravated Burglary).

6Mr Gregg turned around and you stabbed him in the neck. Mr Gregg then lunged at you, there was a scuffle and you stabbed him a second time in the stomach (Charge 2 – Intentionally Cause Injury). The scuffle continued until Mr Gregg managed to overpower you and instructed Mr Feldman to disarm you. Once you had been disarmed and had relaxed, you were released by Mr Gregg.

7Mr Gregg left the house and returned to his residence where he was assisted by his partner and her family before being taken to hospital. According to the forensic report of Dr Maaike Moller dated 15 April 2021,[1] as a result of the stab wounds, he was found to have lost greater than 1 litre of blood at the scene, sustained an injury to his liver requiring open abdominal surgery as well as a blood transfusion. He has scars from the result of his injuries and in future may suffer complications related to the abdominal surgery.

[1]        Exhibit A.

8After the stabbing, you remained at the scene, dripping blood from your hand over the back doorstep. You left with ‘Tracey’, your associate, in a white Holden Cruz which was parked at the front of the Norlane residence. You were then intercepted by police. Upon being observed with blood on your hands, face and stomach, you said that you had fallen through a glass window. You were arrested and conveyed to hospital where you were searched and found to have a knife and a multi-tool in a black sheath (Summary Charge 6 – Possess Controlled Weapon). The ornamental knife alleged to be used in the stabbing was not located.

9You gave a no comment record of interview. Plea negotiations were ongoing until 20 May 2022 when you indicated your intention to plead guilty to the charges as resolved between the parties. You have spent 427 days in custody not including today.

Your personal circumstances

10You were raised in South Melbourne by your mother who is a registered nurse. You had no relationship with your father. You report no issues with your home life, but older peers exposed you to drugs at a young age. You began using cannabis at the age of 12, amphetamines at the age of 14, methamphetamines at the age of 15 and by 19, you were using heroin.

11As a result of your drug use, you dropped out of school in Year 9. After leaving school, you worked as a labourer until around the age of 20. You have not worked for some time.

12At the age of 23, you fathered a daughter, who is now aged 7. She lives with your mother. Following your daughter’s birth, you managed to stay largely abstinent for two years, however when your relationship with her mother broke down, you fell back into drug use in increasing amounts.

13You have a lengthy criminal history dating back to 2012, including prior convictions for violence (2020 – intentionally cause injury; 2013, 2014 – unlawful assault) and weapons offences (2016, 2017 – possess controlled weapon without excuse). You attribute your repeat offending to heavy drug use. This is your first time before the County Court and your time on remand for this offending is the longest period you have ever spent in prison.

14While in prison, you have been working as a billet and undertaking a course on transport and logistics. Your counsel filed participation certificates for 2 courses undertaken in December 2021 (Substance Use Program, Healthy Lifestyle Plan) and three negative urine screens (August 1 and 27, and 30 September 2021).  

Victim Impact Statement

A Victim Impact Statement by Mr Gregg was filed on 2 June 2022.[2] He said that he was unable to work for 8 months following the incident; has developed severe anxiety and depression; suffers from night terrors; and continues to require scans and check-ups for his injuries. As he no longer felt safe in Geelong, he has moved interstate with his partner, however, he still finds it difficult to trust anyone or make friends.

[2]        Exhibit 1.

Sentencing submissions

15Your counsel made submissions to the following effect. You were drug affected at the time you went to the back yard of the house, carrying a knife, but went there to recover some of your belongings. When Mr Gregg asked you to identify yourself, the situation escalated quickly when you produced the knife. After Mr Gregg hit you with his belt, you chased him into the house holding the knife, but you did so spontaneously, in the heat of the moment. At that point in time, the adult occupants of the house were outside. You chased Mr Gregg into the house and stabbed him. Given the factual matrix, the aggravated burglary can be said to be spontaneous, fact-specific and at the lower end of objective gravity.

16He conceded that the offence of intentionally cause injury involving the use of a knife is serious. He submitted that the seriousness is tempered by the lack of premeditation and the nature of Mr Gregg’s injuries which cannot be said to be a serious example of the offence.

17Your counsel conceded that specific deterrence clearly has a role to play given your criminal history, but noted your priors are largely associated with your drug use. Given the fact-specific nature of the offending, general deterrence does not play a strong role. Your sentence ought to be moderated because you also suffered injuries in terms of a cut in the webbing of your hands and a cut to the face which bled heavily and has resulted in scarring. In spite of your criminal record, you have some prospect of rehabilitation, depending on whether you can abstain from drug use. In this regard, you have the support of your mother with whom you will live upon your release, away from antisocial influences in Geelong and Melbourne. Your sentence ought to be further ameliorated on account of the utilitarian value of your plea, which is greater during the currency of the COVID-19 pandemic. Finally, your time on remand thus far has been more onerous due to COVID-19 restrictions, but has also had a salutary effect on you.

18It was submitted that the intentionally cause injury charge is more serious than the aggravated burglary charge and that the sentence imposed on the former should be the base sentence, with a very small amount of cumulation in respect of the aggravated burglary, which occurred only seconds before the stabbing.

19Finally, it was submitted that the appropriate sentence was one of a term of imprisonment in combination with a Community Correction Order.

20The prosecution made submissions to the following effect. You are to be sentenced on the basis that you went to the premises whilst heavily drug affected and armed with a knife; that Mr Gregg came to the premises unarmed at the request of Ms Whitlow; that he identified himself to you, asked you who you were and told you that you would not find your phone in the shed; that you became unsettled and angry because you did not know Mr Gregg; that you were not willing to identify yourself to him; that you pulled the hunting knife out of your jacket pocket and then Mr Gregg hit you with his belt and ran inside the house away from you. You pursued him into the house with the knife. Mr Gregg was in the kitchen and located a butterknife. You stabbed him twice before he could overpower you and instruct Mr Feldman to disarm you. There is no evidence that the butterknife held by Mr Gregg caused your injuries; it is more likely that this was caused by the knife used to stab Mr Gregg.

21Whilst the aggravated burglary was spontaneous, it cannot be viewed as a low-level example of this offence, because after Mr Gregg ran away from you into the house, you had the opportunity to leave the premises. Instead, you entered the house without permission, armed with the knife, and stabbed Mr Gregg, causing him a substantial injury. The stab wounds pierced the abdominal wall and required open surgery which has left Mr Gregg with significant scars to his upper body. As indicated in his victim impact statement, Mr Gregg has suffered substantial psychological injury in the form of depression and anxiety and felt it necessary to leave the state. This is a relatively serious example of the offence of intentionally cause injury.

22For these reasons, denunciation, just punishment, general and specific deterrence are important sentencing considerations. Given your criminal record, the only appropriate sentence is one that involves a head sentence and minimum term.

23On 25 May 2022 you were assessed by Corrections Victoria. The report of that assessment noted the history you gave that at the time of offending you were a heavy user of ice, GHB and Xanax, that you were associating with negative peers, and that you carried a knife for protection. You said that your time in prison had been a wake up call and that you are motivated to turn your life around. You indicated that, upon your release from custody, you will reside in Bendigo with your mother, step-father and 8-year old daughter.  The report noted that you have been prescribed Avanza for depression and you told Corrections that you were diagnosed with borderline personality disorder in 2018. The report anticipated that the court would receive a mental health report from Forensicare. Unfortunately, Forensicare was unable to connect with you at your prison. However, Forensicare provided a letter dated 31 May 2022 indicating that you have no forensic medical history and limited history of area mental health contact with no diagnosis given. You have had no admissions to a psychiatric inpatient facility or treatment under the Mental Health Act 2014 (Vic).

24Although you were adamant that you would be able to comply with a CCO if given the opportunity, you were assessed as unsuitable to undertake a CCO due to your poor compliance with community-based court orders in the past. In the event that the court imposes a CCO, the report recommended conditions of judicial monitoring, supervision and treatment and rehabilitation for drug abuse and programs as directed.

Sentencing considerations

25The purposes for which a court may impose a sentence are those of denunciation, just punishment, general and specific deterrence, protection of the community and rehabilitation. Regard must be had to a range of factors, including the seriousness of your offending, your culpability for it, your personal circumstances and those of the victim. The court is required to balance the interests of the community in denouncing and punishing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into society.

26You are entitled to a discount for your plea of guilty which has saved the court and the community the expense and inconvenience of a trial and marks your acceptance of responsibility for your actions. In addition, you are entitled to an additional discount for making your plea during the currency of the COVID-19 pandemic, when the backlog of matters before this court has grown.[3] Finally, I accept that your time on remand has been more onerous on you during the currency of COVID-19 restrictions than it would have been during a different period.

[3]        Worboyes v R [2021] VSCA 169.

27The factual matrix described at paragraph 20 above is one in which the offences of aggravated burglary and intentionally cause injury, as well as the summary offence, occurred within seconds of one another. You spontaneously chased Mr Gregg into the house and stabbed him in the neck and again in the stomach. It can be inferred that your intent at the point of entry (at which time the offence of aggravated assault was complete) was to commit assault. I consider that although the aggravated burglary was spontaneous, you had the chance to desist when Mr Gregg ran away from you into the house. For this reason, I consider that your offending is more than the lowest level example of such an offence. I note, however, that you have no prior convictions for this offence.  In relation to the intentionally cause injury, I consider that, having regard to the fact that you were armed, pursued Mr Gregg with a knife after he turned away from you and fled into the house, and caused injuries as described above, your conduct is a serious example of the offence.  I note that you have one prior conviction for this offence. You have two prior convictions for the summary offence of possessing controlled weapons without excuse.  

28On the authorities,[4] care must be taken in fixing the sentence for aggravated burglary to ensure that an offender is not doubly punished for offences committed after entry into the house. Given the spontaneity of your action in pursuing Mr Gregg into the house, I consider it appropriate to impose an aggregate sentence in respect of these two offences as well as the summary offence. In the light of your history of offending in the context of continued drug abuse, your relatively youthful age (29), the period you have spent on remand, and your resolve to turn your life around, I consider that all of the relevant sentencing principles can be met by the imposition of a combination sentence involving a term of imprisonment and a CCO.

[4]        DPP v Meyers VSCA 314 [71]; Pearce v The Queen (1998) 194 CLR 610.

29I impose an aggregate sentence in respect of charges 1 and 2 and summary charge 6 of 792 days’ imprisonment, in combination with a 12-month CCO with conditions of supervision, drug treatment and rehabilitation, mental health treatment and rehabilitation (as required) and 100 hours of unpaid community work. I direct that all of the hours of unpaid community work can be satisfied by engagement in the treatment and rehabilitation recommended by Corrections.

30I declare that there are 427 days of PSD, not including today, which are to be deducted administratively from this sentence. After the deduction, you will have 12 months’ remaining of the term of imprisonment to serve. The CCO will commence upon your release.

31Regarding your CCO, you will need to report to Bendigo Community Correctional Services within 2 working days once the order commences.

32The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 12 months from its commencement - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

33Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment.

34Do you consent to the making of a CCO?

35I indicate pursuant to s6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have imposed an aggregate sentence of three years’ imprisonment with a non-parole period of 2 years.

36The Prosecution has applied for a disposal order for the weapons seized from you, swabs and other items taken from the scene. Your counsel did not object to the making of these orders, therefore I will make them.