Director of Public Prosecutions v Djekic
[2023] VCC 932
•2 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL JURISDICTION
CR-22-00990
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DJEKIC |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2023 | |
DATE OF SENTENCE: | 2 June 2023 | |
CASE MAY BE CITED AS: | DPP v Djekic | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 932 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Plea of guilty - Destroying property – Armed robbery – Plea of guilty – Good prospects of rehabilitation – Covid-19 pandemic – Youth – Residential rehabilitation.
Legislation Cited: ss 5, 6AAA, 18, 40 Sentencing Act 1991 (Vic).
Cases Cited:Akoka v The Queen [2017] VSCA 214; Azzopardi v The Queen [2011] VSCA 372; R v Verdins [2007] VSCA 102; Shrubshall v The King [2022] VSCA 22; Worboyes v The Queen [2021] VSCA 149.
Sentence:128 days’ imprisonment with a 12 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Worrell | Office of Public Prosecutions |
| For the Accused | Ms S. Buckley | Chester Metcalfe & Co |
HER HONOUR:
1 Michael Djekic, you have pleaded guilty to one charge of destroying property and one charge of armed robbery.
Summary of offending
2 The circumstances of your offending are outlined in the agreed summary of prosecution opening marked as Exhibit A on the plea, which is the basis upon which I sentence you.
3 In summary, on 30 December 2021 at approximately 3.40 am you attended the 24 hour BP service station located at Plenty Road, Bundoora.
4 You walked along the driveway to the store from Main Drive. At this time, you were in possession of a silver coloured claw hammer with a black handle that you held in your right hand.
5 The victim was working alone as the night shift attendant at the drink's cabinet at the rear of the store. The front glass automatic doors to the service station were closed and locked. You used the hammer to gain entry to the store. You struck the door, completely shattering it, and in the process, you also caused a laceration to your hand.
6 The victim heard glass smashing and observed that the door to the store had been smashed and that glass was everywhere. He then observed you standing in the doorway. You were wearing a black hoodie which was pulled up over your head, a white face covering, and black gloves.
7 Once inside the store you walked towards the victim and pointed the hammer towards him, waving it above your head whilst making demands for the victim to open the door to the office and to give you the cash from the register.
8 Fearful that he was going to be attacked with the hammer, the victim ran from you, through the shattered glass door, and outside the store and called Triple 0.
9 You ran towards the front counter which separates the main store from the console operator's area and jumped over the counter. You opened the cigarette cabinet which was shut but not locked and started shoving multiple packets of cigarettes into the black night duffel bag and your pants pockets.
10 A few minutes later the victim observed you exit the store and run towards the Polaris Shopping Centre.
11 The entire offending was captured on CCTV installed in the Bundoora BP service station, which was played in court.
12 The two packets of Winfield brand cigarettes on which you deposited blood, along with a swab of blood taken from the Perspex cigarette holder, were later submitted for forensic testing. On 8 February 2022 you were forensically matched to the crime scene.
13 On 15 February 2022, after an earlier failed attempt to execute a search warrant, police attended your address and arrested you. Your family were also present at home at that time.
14 You were transported to the Mill Park police station for interview. You answered ‘no comment’ in relation to the offending but did volunteer your mobile phone number, enabling police to make further investigative enquiries.
Gravity of the offending
15 The offence of armed robbery, Mr Djekic, is an inherently serious one, as reflected by the prescribed maximum sentence. In such cases general deterrence and community protection are particularly important sentencing considerations. As was properly conceded by your counsel, this is serious offending warranting a term of imprisonment. In assessing the objective gravity of your offending, I have had regard to a number of matters as outlined by the prosecution, including that: your offending occurred in the early hours of the morning and your victim was working alone and vulnerable; you made some attempt to disguise yourself; the weapon was a hammer and was used in the course of threatening the victim, and you also used the hammer to smash the front glass doors which were closed and locked.
16 While there is no victim impact statement, I accept that this would have been very confronting for your victim. I also note that you were on a community corrections order (CCO) at the time of committing this offence, having been placed on it only some nine days earlier.
17 I accept that while there may have been some degree of planning given your attempt to disguise yourself and your possession of a hammer, your offending did not involve a high level of planning or sophistication. Your offending and your interaction with the victim was of relatively short duration. You were acting alone and not in company. I accept your counsel's submission that your offending lacks some of the features of more serious examples, such as gratuitous violence, threats, or the use of firearms.
18 I also take into account the value of the cigarettes stolen and the cost of the damage to the glass door.
19 At around the time of the offending you had relapsed into using methamphetamine. You told psychologist Ms Laura Fleming that this occurred in the context of the anniversary of the death of your friend, who committed suicide in recent years. While this offers some context to your offending, Mr Djekic, it does not excuse it or reduce your moral culpability.
Procedural history
20 As noted, on 15 February 2022 you were arrested, charged, and remanded.
21 On 7 June last year your matter resolved at a committal case conference and a plea date was subsequently fixed.
22 You were granted bail by this court on 22 June 2022 and you were released to reside at Odyssey House. On 18 January 2023 your bail was varied. You had been released from Odyssey House and you returned to live with your parents where you continue to reside.
23 You have 128 days as pre-sentence detention.
Plea of guilty
24 You entered a plea of guilty at the earliest opportunity, and this warrants a substantial discount in sentence. Your plea of guilty is important for its utilitarian value and there will be a greater amelioration or reduction of sentence in accordance with what we refer to as the Worboyes principles.[1] I also accept that your plea of guilty reflects an acceptance of responsibility and demonstrates remorse. I note that in your assessment with Ms Fleming you showed insight that your victim would have been scared for his life and you were apologetic for your actions.
[1]Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
25 You were born in Australia to Serbian parents who migrated from Serbia in the late 1990s during the war.
26 Your father served in the war and suffers from mental ill health. Your mother is the full-time carer for your father, and she receives a carer's pension.
27 You are the youngest of four children. You have three older sisters. Two of your sisters have intellectual disabilities and are in receipt of a disability support pension, and your third sister works as a dental nurse.
No other members of your family have been in trouble with the law.
28 You grew up in public housing in the northern suburbs of Melbourne, predominantly in the Reservoir area. While your family have struggled financially, you have had the benefit of a loving and supportive home environment. You are very close to your family and they remain supportive of you, as suggested by their attendance at court, and I note that your father has attended court today again.
29 You struggled through your schooling years, and you left before completing Year 9. You had learning support and integration aides due to your learning difficulties. You struggled and also experienced bullying.
30 You were supported to attend further schooling at PRACE, an adult education supportive environment. You completed Year 11 through the Victorian Certificate of Applied Learning.
31 At age 18 you worked as a bricklayer's labourer until you had a motorbike accident in January 2019 and were unable to work. You worked for one year between 2020 and 2021 as a landscaper. In his letter your previous employer, Michael O’Rega, describes you as hardworking and as showing great initiative and promise. You have also worked in roof tiling, and most recently, prior to your remand, for a concrete company business.
32 You have a history of polysubstance abuse commencing in your teenage years. Your alcohol use became particularly problematic from your late teens onwards. You were consuming significant amounts of alcohol on a daily basis in the
six or so months prior to the offending.
33 You started using methamphetamine in your late teens. Prior to your arrest you were using the drug frequently and would often find yourself staying up for several days at a time.
34 You have been drug and alcohol free since this offending for an approximate period now of one and a half years.
35 As for your mental health, I will canvass this in greater detail shortly. You have disclosed a history of schizophrenia within the family. You have also experienced significant grief and distress arising from the circumstances of a close friend taking his life in 2019.
36 In January that year you were also admitted to the Royal Melbourne Hospital following a motorcycle accident. You sustained a number of injuries, including an undisplaced pelvic fracture and a right foot open fracture. It is not entirely clear but the accident may have been an attempt on your own life.
You underwent surgery to repair the foot fractures. You were discharged in January 2019 but were re-admitted a couple of months later for amputation of a toe due to severe infection.
37 You have a criminal history dating back to 2017. The history includes a number of driving, dishonesty, and violence offences. I accept your counsel Ms Buckley's submission that your history cannot be used to aggravate or increase any sentence I impose, but it is relevant to an assessment of your prospects of rehabilitation and other sentencing principles including specific deterrence and community protection.
38 As I have already noted, some weeks prior to your offending you were placed on a CCO for a consolidation of matters. This order is listed for breach proceedings in the Magistrates' Court on 21 June this year.
Mental health
39 A number of reports, Mr Djekic, were tendered on your behalf concerning your mental health and cognitive abilities. I have carefully read all these reports and they have been of assistance to understanding your particular circumstances. I will only briefly summarise the opinions expressed in those.
40 Ms Fleming, in her report of 6 October 2022, undertook various assessments and found that your presentation indicated intellectual deficits and emotional dysregulation. At the time of your offending, you met the criteria for stimulant use disorder and alcohol use disorder. She recommended a neuropsychological assessment, which was subsequently undertaken.
41 Neuropsychologist Loretta Evans provided a report of 21 November 2022. Due to the inability to administer IQ measures as well as variable or failed performances on indicators of motivation, the ability to generate a reliable and valid neuropsychological profile was not possible. Nevertheless, various other psychometric tests were attempted with the aim of determining a minimal level of functioning in some domains. A clear neuropsychological profile was not produced and so the reported results are limited. In summary, the results indicated the following: it was possible that you are capable of at least low average perceptual skills; you experienced some challenges with attention and speed of information processing, and you presented with moderately impulsive thinking and behaviour.
42 She offered a number of conclusions, including that your presentation was:
'Suspicious of an underlying verbal learning disorder, that the presence of an underlying neurodevelopmental disorder was difficult to determine, given the confounding elements underpinning the assessment'.
43 She also considered that the constellation of symptoms was suspicious of an underlying emerging psychiatric illness, requiring further psychiatric investigation.
44 Dr Fiona Best provided a psychiatric report of 17 April of this year. She notes that while you were prescribed antipsychotic and antidepressant medications in Odyssey House, you have ceased all such medication when you left.
You presented as somewhat disorganised. It was not clear to her whether you had an underlying or emerging mental illness, and you did not meet the criteria for a major mental illness. However, she considered that there are features in your presentation that suggest symptoms or an early set of symptoms indicating the onset of a disease for a psychotic illness, including low grade psychotic symptoms, anxiety, mood swings, irritability and sleep disturbance. She suggested you attend a GP for a referral to your local area mental health service for assessment.
45 Ms Buckley, on your behalf, submitted that Verdins[2] limb 5 was potentially enlivened by Ms Fleming's conclusion that imprisonment would likely weigh more heavily on you. However, Ms Fleming's opinion as expressed at paragraph 89 reads as follows:
'… Imprisonment would likely weigh more heavily on Mr Djekic than a person without his conditions if his intellectual impairment is confirmed, as he would then present with serious and visible disabilities causing impairment'.
[2]R v Verdins [2007] VSCA 102.
46 Dr Evans opines that there was insufficient evidence to indicate that your cognitive functioning would deteriorate in custody, though given your endorsements on the DASS along with your self-reported anxiousness and paranoid thinking, any period of imprisonment would require ongoing monitoring of your mental health.
47 On the evidence before me I do not accept that any Verdins principles are enlivened. However, I do take into account the assessments and opinions provided in the reports in a consideration of your overall circumstances.
Youth
48
You were 21 years of age at the time of offending; you are now 23. Your youth means that rehabilitation is a key consideration in the sentencing process.
I accept the prosecution's submission that the youth of an offender must always be balanced against the seriousness of the offending.[3]
[3]Azzopardi v The Queen [2011] VSCA 372.
49 Your youth is relevant because the law generally recognises that young persons are more prone to rash behaviour, lacking the self-control that comes with maturity.
50 As Ms Fleming states in her report:
‘It is important to consider Mr Djekic’s young age in this matter; as outlined in the Sentencing Advisory Council’s report from December 2019 (SAC, 2019), there is a significant difference in the maturity of young adults in their late adolescence and early adulthood (aged 18-25) compared to adult offenders. This is due to their neurological development continuing beyond this age, and psychological limitations such as impaired understanding of consequences, increased impulsiveness, disproportionate emotional arousal and deficiencies in decision-making abilities.’
51 Also, I must ensure that your rehabilitation is promoted by the disposition imposed, factoring in that incarceration in an adult prison is likely to impair rather than assist your process of reformation.
Other factors
52 I also, Mr Djekic, take into account the period of your remand, including that it was served at a time when the COVID-19 pandemic caused conditions in custody to be more restrictive and onerous.
53
I also note and take into account, as raised on your behalf, that in
December of 2021 when you were placed on the CCO that I have already referred to you spent 77 days in custody which was time not declared.
54 Further I take into account the delay in your matter and that the potential of returning to prison has been weighing on you. The delay is also relevant as you have demonstrated in this period your commitment and capacity to rehabilitate.
55 As I have already noted, you were initially bailed to reside at Odyssey House. You successfully completed a residential rehabilitation program for a period of six months. The letters tendered on your behalf confirm that you participated and engaged well during this program, including attending to your responsibilities and following the structure and routine of the house.
56 In respect of your period in residential treatment, I take it into account in accordance with the principle stated in Akoka[4] and I will give full weight in the exercise of my instinctive synthesis to your period of time at the facility and your active engagement in treatment.
[4]Akoka v The Queen [2017] VSCA 214.
Prospects of rehabilitation
57 The prosecution submit that your prospects of rehabilitation are guarded and your counsel submits that they should be viewed favourably. In all of the circumstances I consider, Mr Djekic, that your prospects are currently good but do largely depend on your continued abstinence from drugs and a willingness to address your underlying mental health issues. I also consider that you would benefit from continued treatment, supervision, and education to assist with your insight which, in March of 2023, I note Dr Best regarded as poor.
58
In assessing your prospects of rehabilitation, I have had regard to the matters
I have already referred to, including your prior criminal history, your acceptance of responsibility for this offending, your youth, and your successful treatment at Odyssey House. You also have continuing family support available to you. Your sisters Suzanna and Zeljka Djekic speak on behalf of your family as to how proud they are of the progress and changes that you have made since your admission to Odyssey House. They have seen significant improvement in you at home, including in helping with the cooking and cleaning, being calmer in nature, and surrounding yourself with a different friendship circle.
59 I take into account that for a considerable period of time you have not relapsed into drug use or offended, and you have complied with bail. You are also presently employed on a full-time basis, and I received a letter from your employer indicating that you demonstrate a good attitude and responsibility.
60 You reported to Dr Best that you have started a routine:
'I'm getting back into training. I'm getting physically active, all the physical stuff in life. I have made a big improvement'.
61 It is very important, Mr Djekic, that you stay focused on and motivated, even when and if challenges present themselves in the future.
62 Dr Evans considered that with successful completion of targeted interventions, psychological support, the ongoing involvement of your parents and extended family, stable accommodation in the future, as well as a gradual return to employment, your future prospects are enhanced. Further, maintaining abstinence, preventing relapse, and maintaining stable mental health are of critical importance.
Sentencing principles
63 The basic purpose for which a court may impose a sentence of punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community as I have already indicated, given your youth I consider rehabilitation to be a prominent consideration.
64 I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty, including the case provided by Ms Worrell of Shrubshall v The King.[5]
[5] [2022] VSCA 22.
65 I also take into account the maximum penalties and the principles of parsimony, proportionality, and totality. In particular as the parties have submitted, totality is an important consideration in your case, given the overlap between the two offences.
66 Both counsel submit that a combination sentence is within range; ultimately it being a matter for the court as to whether the time you have already served in custody is sufficient for sentencing purposes.
67 I had you assessed for a CCO and you are assessed as suitable for such an order. During your assessment, Mr Djekic, you showed insight into your offending, the need for ongoing treatment, and remorse. The MHARS report recommended that ongoing assessment or treatment of your mental health be a condition of any such order.
68 Taking into account and synthesising all relevant matters, I consider that a combination sentence not exceeding the term that you have already served in custody is just and appropriate in your case. The CCO component of this sentence is inherently punitive but it will also focus on your rehabilitation, which is in your interest and best promotes community protection.
Sentence
69 Mr Djekic, if you could now stand, please. On Charge 1, that is destroying property, you are convicted and sentenced to one month imprisonment along with a community corrections order of 14 months. On Charge 2, that is armed robbery, you are convicted and sentenced to 128 days' imprisonment, along with a community corrections order of 14 months. Pursuant to the Sentencing Act, that is the one order.
70 I am going to reckon or declare the time that you have served, Mr Djekic - in other words you are not returning to prison. What is going to follow though is a community corrections order. The conditions of those orders - of that order, because it is the one, is as follows: supervision, treatment and rehabilitation for drugs; treatment and rehabilitation for alcohol; treatment and rehabilitation for your mental health; treatment and rehabilitation for any programs.
71 I am not imposing a work condition. This order is really principally focused on your rehabilitation and getting the help that you need. Do you understand?
72 OFFENDER: Yes, Your Honour.
73
HER HONOUR: All right. Along with that though, and you will understand this because you have been placed on an order before, there are mandatory conditions. I will just be brief because we will have the order printed and I will allow Ms Buckley to approach and to go through it with you so that you can sign, but you understand that there are mandatory conditions that apply to orders. You need to report, and it is to Reservoir Community Corrections.
Do you know where they are? Is it Reservoir? That is the one closest to you?
74 OFFENDER: Preston/Reservoir.
75 HER HONOUR: Which is closest?
76 OFFENDER: I think it's just down near Preston - I'll find out.
77 HER HONOUR: You will find out.
78 OFFENDER: I'll find it, I'll find it.
79 HER HONOUR: All right. You can perhaps speak to them but I think the report notes - does the report note Reservoir, counsel? I think it does.
80 MS BUCKLEY: Yes, Your Honour, it does.
81 HER HONOUR: You will need to report to Reservoir Community Corrections within two working days for your first attendance. You need to accept visits and contact from Correctional services. You need to advise them of any change of address and seek their permission in respect of some decisions you make, which will be outlined in the document that is printed for you.
82 You also understand that you can breach the order if, within that period of time that is 14 months that I have stipulated, you do not comply with it in terms of conditions or you reoffend, if you commit an offence that is punishable by imprisonment within that period of time, if you breach you can come back to court and it is open to me to resentence you. All right?
83 OFFENDER: Yes, Your Honour.
84 HER HONOUR: Pursuant to s18 of the Sentencing Act I declare that you have served 128 days as pre-sentence detention. I can indicate that it is a difficult task, but pursuant to s6AAA had you not pleaded guilty to the charges I would have sentenced you to a combination sentence, though the period to have been served would have been approximately 11 months' imprisonment, all right? So your plea of guilty indicates to you, Mr Djekic, that by taking responsibility and pleading guilty you have certainly saved yourself returning to prison.
85
I make the disposal order in the terms sought, which was unopposed, and
I believe, counsel, that that should deal with all matters. You can take a seat, Mr Djekic.
86 OFFENDER: Thank you, Your Honour.
87 HER HONOUR: We'll just have that form printed. Obviously, I didn't state it, but the terms that I have imposed in terms of the prison terms are concurrent.
88 MS BUCKLEY: Yes, Your Honour.
89 MS WORRELL: Yes, Your Honour.
90 HER HONOUR: Counsel, we are just dealing with one administrative issue. Pursuant to s40 of the Sentencing Act a community corrections order may cover multiple offences. That's what I have done. It is the one order. It has just been generated as two orders, which in terms of Mr Djekic's purposes on the order won't make a difference. Should he breach it will make a difference, so this needs to be in the appropriate form and I don't consider that it is. It might just be what's available on our database, but I do want to make clear that the order on both charges is the one order. You can fix it? Thank you. Ms Buckley, you can approach Mr Djekic, if you like, with the order.
91 MS BUCKLEY: I'm grateful, Your Honour.
92 HER HONOUR: Counsel, you both and Mr Djekic will receive a copy of that order. Thank you both for your assistance. We'll adjourn.
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