Director of Public Prosecutions v Djokic

[2018] VCC 1008

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01385

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DJOKIC

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 July 2018
CASE MAY BE CITED AS:	DPP v Djokic
MEDIUM NEUTRAL CITATION:	[2018] VCC 1008

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr S. Pica

HIS HONOUR:

1Michael Djokic, you are to be sentenced on indictment E13682960.1 (the trial indictment) for two charges of trafficking in a drug of dependence, three charges of possession of a drug of dependence, four charges of possession of prescribed precursor chemicals under s.71 of the Drugs, Poisons and Controlled Substances Act, and one charge of possessing substances, materials, documents or equipment for the purpose of trafficking a drug of dependence.

2You are also to be sentenced on indictment E13682960.2  (the plea indictment)  for three charges of possession of firearms as a prohibited person, and one charge of possession of a silencer as such a person.

3You are to be sentenced for two summary offences, possession of a prohibited weapon and unlicensed possession of cartridge ammunition.

4The maximum sentences are as follows:  15 years' imprisonment for trafficking a drug of dependence; ten years' imprisonment for possession of substances, materials et cetera for trafficking and for possessing firearms as a prohibited person; eight years' imprisonment for possession of a silencer; five years' imprisonment for possession of precursor chemicals; two years' imprisonment for possessing a prohibited weapon; 12 months' imprisonment for possession of a drug of dependence; and a fine of 40 penalty units for possessing ammunition.

5You committed all of these offences in early November 2014.  When formally interviewed by police on 6 November, you exercised your right to silence.  However, earlier that day, upon arrest at your mother's farm property in Cranbourne West, you had made admissions including about the presence of drugs and chemicals in a large shed there.  There was a contested committal in August 2015.  You were committed on 27 charges and entered  pleas of not guilty. 

6The matter was first listed for trial in this court during 2016.  It came before me in November 2017.  There was severance of the first indictment and a trial on the drug-related charges ran.  There were 17 counts.  A jury was empanelled on 15 November and on 24 November returned verdicts of guilty on ten counts. 

7There were mention hearings as to the remaining charges, the firearm charges.  Ultimately they settled to the plea indictment.  You pleaded guilty to those four charges and the two summary charges on 1 June.  A charge of handling stolen goods has been remitted to the Magistrates' Court. 

8At your plea hearing, which ran on the 1st and 28 June, Ms Fallar for the Crown tendered a written Crown opening on the plea indictment.  Mr Sheales for you tendered the report of forensic, and also your treating, psychologist Jeffrey Cummins dated 25 May 2018,   a large number of reports and letters of reference related to your treatment and rehabilitation from drug abuse, letters of character reference, medical health documents and a spreadsheet related to your present duties and role as a construction site supervisor.

9Mr Sheales called you to give evidence, during which photographs of a longarm firearm (part of the unlicensed possession charges) were tendered.  He also called your wife, Danielle Djokic, to give evidence on your behalf. 

10All of these charges arose out of police surveillance and then raid upon a small farm property in Cranbourne West.  Your mother lived at the property.  Your father had done so also; and ran a meat and poultry spit roast business from it until his death about 18 months before.

11The police raid was on 6 November 2014.  That revealed (primarily in a large farm shed)  the drugs, chemicals, equipment, literature and other materials that make out the ten drug-related offences upon which you were convicted at trial.  Various firearms were also found.  That is described and summarised in the Crown opening on the plea indictment and tendered as Exhibit A. 

12Having considered the evidence at trial and plea hearing, counsels’  submissions, that Crown summary in Exhibit A, the principles stated in such cases as R v Storey relevant to fact-finding on sentence, and consistent with the jury verdict at trial, I find as follows. There were found drugs, precursor chemicals, equipment, paraphernalia and literature consistent with use for manufacture of methylamphetamine;  but you were not charged or convicted for that offence.

13Further, I do not find that the substances and items were situated in a way to immediately process the drug. 

14As to the trafficking offences (Charges 1 and 2), you are sentenced on the basis of possession for sale.  You knowingly held the two drugs for the purpose that they would become in some way part of the chain of commercial distribution, that is, be sold.  The closely approximate pure quantities are 47.5 grams for methylamphetamine and its analogues (Charge 1)  and 42.75 grams for the similar drug, 4-methoxymethylamphetamine (Charge 2).  That is well over the legislatively-set traffickable quantities (0.5 grams);  but also well short of that set for commercial quantity (500 grams).  Some of the drugs or substances found were of poor and unusable quality. 

15I accept that you committed the offences in the context of decline into dysfunctional drug use following the death of your father in 2013, to whom you were  close.  Your explanation has been that you were holding the drugs, substances, equipment, literature, et cetera for another man.  You named him in evidence at trial as your supplier.  I do not find beyond reasonable doubt that you were more engaged than this in the prospective sales,  distribution or manufacture.

16On Charges 1 and 2, you possessed these drugs knowing the intended purpose to be sale and, on Charge 12, trafficking by manufacture.

17As to the bulk of serious firearms and related items found, I accept your explanation in evidence before me on the plea hearing that these belonged to your father.  He had been a security guard and also slaughtered animals on the farm.  Given the nature of some of the guns, I would find he likely had an interest beyond these things;  you stated in evidence that he also hunted.  He kept them over the years as you best understood in the locked cool room trailer in which police found them.  You in a sense inherited the keys and control of them.  You had keys to both shed and trailer.  I accept that you did not own the guns, although you may have handled them in an inadvertent or innocent way, explaining the possibility of your DNA on two of them.

18I am not satisfied that these firearms had anything to do with the drug-related offences.  The gravamen of your firearm possession offences is your control of them and failure to do something to legalise or remove them.  It is understandable, given your father's death and its impact upon you.  However, the cache within your father's trailer contained serious arms, including a submachine gun, handgun and silencer, together with associated ammunition.  They were without licensed control.  There was a significant risk.

19There were less sinister guns, a pen and air pistol, which you explained differently.  They are a minor part of it.

20The prohibited weapon, an electric Taser, was found in the farm shed under a workbench.  You were a prohibited person under the Firearms Act by reason of a family violence intervention order made by the Dandenong Magistrates' Court in April 2014.  It is ironic that your wife, in whose favour the order was made, gave evidence of its circumstances.

21You are a 43-year-old man.  You live with your wife and four children aged between seven and 14.  Your wife is very supportive of you. Your children do not know of your situation. 

22Both of your parents came here from Serbia.  Your father died of a heart attack in June 2013 when visiting Bosnia for a family wedding.  Your upbringing was unremarkable.  Mr Cummins' report describes difficulties between your mother and father, albeit they did not separate, and then turbulence in the broader "family dynamics" arising out of the circumstances of your father's death overseas.  You have an older brother who gave evidence at trial and supported you in court at the plea hearing. 

23You left school after Year 11 and completed an apprenticeship in air conditioning.  You worked in that for a number of years.  You moved into what seems domestic and then larger property development with your brother, who is a builder.  You were involved in that at the time of offending.  You described to Mr Cummins a comfortable income.  The development project then existing failed because of your arrest and remand.  There has been significant loss for your family and your brother.  You are presently employed as a site manager at a Melbourne CBD building refurbishment.  You work long hours.

24You drank alcohol and smoked cannabis from late teenage and then took other recreational drugs,  with only minor damaging effect.  In your late-30s, you began experimenting with methylamphetamine.  This was not regular  and you functioned well.

25There were, at or from this time, two family tragedies which impacted heavily upon you.  There was a stillborn child in late 2009, and then your father's unexpected death overseas in 2013.  This included that you and your brother went to Bosnia to arrange and bring your father back to Australia after a family service there.  I accept that you were close to your father, and also that your drug use escalated.  I was told that you were using 2-3 grams of methylamphetamine daily in the months leading to this offending.

26Your wife gave evidence about this time, which I also accept.  You were, she said, depressed and withdrawn in response to the loss of your father and its circumstances.   In late March and April 2014, she became particularly concerned in another way.  This culminated in her discovery of an ice pipe in April,  in your car.  There was a bad argument  and your wife felt the need to call the police.  This resulted in the family violence intervention order to which I have earlier referred.

27After a time, you were able to return to the home.  It was clear to your wife that your drug problem was serious; and she made a number of attempts to have you go into rehabilitation.  Mr Cummins gives an opinion of severe dependence.

28Upon arrest, you were remanded for a month and then bailed to inpatient care at the Refocus Alcohol and Drug Rehabilitation Program.  Reports by Refocus and other drug rehabilitation clinicians have been tendered, under Exhibit 2.  After a short time of resistance, you embraced the program, staying and performing well as an inpatient for three months.  You returned home, but continued treatment.  On your wife's assessment you were drug-free and doing well.  In March 2015, you were charged with further offending (I was told drug possession or drug related charges; however they were later withdrawn).  You were placed again in remand custody.  You were released on bail,  this would be in mid-2015, and that has continued since.  You have served 127 of presentence detention.

29You have also continued treatment, including as an active member of Narcotics Anonymous.  As of late May of this year (Mr Cummins' report is dated 25 May)  there have been 16 consultations with him.  There have been about 30 negative (that is, drug-free) urine tests.  There have been an additional 800 hours as a volunteer at the Refocus program. 

30The tendered material also supports the stated connection  between your complex grief issues and decline into drug dependence.

31The 9 November 2015 letter of Barbara Kustra, Director of Refocus programs, states at its end:

"Michael has embraced his recovery and changed his outlook on life and drug use.  He has undergone a significant transformation on his journey over the last 36 months, and has shown both regret and remorse for his past behaviours and drug use, and the impact it had on his family and the wider community.  Michael continues to be a valued and contributing member, not only of Refocus, but of Narcotics Anonymous.  He remains a leader and mentor to many younger and newer members seeking a life free of drugs and alcohol".

32Your present situation includes care for your mother, who has a number of health problems consistent with her age.  You receive a partial carer's allowance in respect of that.

33The criminal record filed with the indictment states two appearances for relatively minor offences in 1994 and 1996, when you were aged 19 and 21.  In September 2014, you were fined without conviction for breaching the April family violence intervention order.  I am advised that in confrontation with your wife, who was anxious and distressed about your drug use, you pushed her.  This court appearance is about six weeks prior to the offending before me; that is, the police raid on 6 November 2014.

34There are a large number of offences, the combination of which is very serious.  Trafficking and otherwise assisting the drug trade causes damage to our community.  As I have stated, the firearms were considerable and serious in number, type and in potential for harm.  Such circumstances make relevant sentencing purposes and considerations of deterrence, moral culpability, the need to condemn the offending, and proportionately punish it. 

35The usual sentence would include at least a component of imprisonment beyond what you have already served.  However I find there to be unusually strong moderating factors in your case.  They include the following.

361.    I see you as a man who is genuinely remorseful for all of this offending.  That is reflected by your pleas in respect of the firearm offences, however I also accept that you feel shame and a real remorse about your drug abuse and where it took you and your wife and family.

372.    To some extent, there are mitigating factors in the circumstances of offending, as I have found them to be.

383,    The most important factor has been your rehabilitation since the offending.  There is a very large body of evidence supporting this, and really compelling such a finding.

394.    There is also the question of delay,  measured very much in the light of that rehabilitation.  In what approaches four years since the offending, you have worked hard at reformation from drug dependence and continue to do so.  It can properly be said that you present as a different man.  You have family support, ability and capacity to maintain such rehabilitation.

40Also consistent with rehabilitation, I accept that you offered, during the period since of the offences, to assist authorities in respect of the man who was your drug supplier.

41Weighing what are the relevant and competing matters, I find that the correct sentence does not require your return to prison, a return after three years, which in the circumstances can be seen as a harshness in itself. In considering the appropriate structure of sentence, I have decided to impose a community corrections order in respect of all of the offences amenable to that. I treat the 127 days of presentence detention as a relevant punishment already undergone, which should be taken into account; that is, rather than imposing it and declaring the period under s.18 of the Sentencing Act.  The community corrections order should be significant in duration and the punitive condition of community work.  You have been found suitable for such an order.  Stand up please.

42I sentence you as follows:

43On all charges still existing, that is, the remaining charges on the trial indictment, E13682960.1,  on all charges on the plea indictment E1362960.2, and the summary charge of possession of a prohibited weapon, I impose a community corrections order of three and a half years.  The usual terms and conditions apply.  In addition, I direct, or it is a condition, that you perform 400 hours of unpaid community work,  as directed,  over that time.

44On the summary charge of possessing cartridge ammunition, you are convicted and fined $250.

45Ms Guesdon, there is no requirement for a s.6AAA?

46MS GUESDON:  Not with a CCO I do not believe, Your Honour.

47HIS HONOUR:  Yes.  No, I do not - really, as difficult as it often is, I really do not see how you could do it in this case.

48MS GUESDON:  Well, one is a plea and one is a trial.

49HIS HONOUR:  That is right.

50MS GUESDON:  Could I just say one thing, Your Honour?  I think because there are different court reference numbers, they need to be concurrent but separate CCOs run on each of the indictment, but they can be made concurrent so that there is no issue ‑ ‑ ‑

51HIS HONOUR:  I see, so there is no confusion.  In my view the correct way of putting a sentence when the proceeding is run together is the way I have done it, but the electronic systems we have hold sway,  it seems.

52So what should I do?  I make it clear - we will have to print out two community corrections orders on the different indictments?

53MS GUESDON:  I think so.

54HIS HONOUR:  And what about the summary offence?

55MS GUESDON:  The Taser could go with the firearms.

56HIS HONOUR:  It is a summary - it is ‑ ‑ ‑

57MS GUESDON:  And it is part of the plea.

58HIS HONOUR:  I see.  All right, well on your advice I think - the difficulty of the summary charge is really just that indicates that the ‑ ‑ ‑

59MS GUESDON:  I think just because there are different course reference numbers it might make it ‑ ‑ ‑

60HIS HONOUR:  That is right - I see, that is it, so different court references - I see.  Well all right, Fran do you understand that?

61ASSOCIATE:  (Indistinct).

62HIS HONOUR:  There will have to be two orders, one in relation to the drug, or trial, matters, and one in relation to the plea or firearm matters, and included in that second order should be reference to the possession of the prohibited weapon. 

63MS GUESDON:  Yes, that is right. 

64HIS HONOUR:  And they will run concurrently.  Just take a seat now.

65MR PICA:  Your Honour, just one minor matter that probably does not make terribly much difference.  The accused man at committal entered pleas of guilty with respect to the pen pistol and the baby desert eagle firearm that is referred to as the air gun.

66HIS HONOUR:  Yes, well ‑ ‑ ‑

67MS GUESDON:  And just the only other matter, Your Honour, the ‑ ‑ ‑

68HIS HONOUR:  I see, all right.  I note that there is - I do not think it makes any difference to my sentence.

69MS GUESDON:  In terms of ancillary orders, the prosecution is seeking disposal of the drugs and paraphernalia and a firearms forfeiture order.  We have just finalised the schedule for that, and my instructor can email ‑ ‑ ‑

70HIS HONOUR:  If you send that to me in my chambers, I will sign it.

71MS GUESDON:  Thank you Your Honour.

72HIS HONOUR:  I will come back when the orders have been printed out.

73MS GUESDON:  Thank you.

74HIS HONOUR:  What about a s.464ZF sample?

75MS GUESDON:  That DNA will be retained, I believe.  It was taken ‑ ‑ ‑

76HIS HONOUR:  I do not have to make an order?  Yes, all right.

77MS GUESDON:  ‑ ‑ ‑ previously.  Yes Your Honour.

78HIS HONOUR:  Yes, all right.  I will return when that is all there.

79(Short adjournment.)

80HIS HONOUR:  It is pointless me doing it, but I do it all the same, because I think it needs to be recorded, but I do not think court orders should be dictated to by electronic systems which are not adequate to meeting what the court says has happened.  But nobody seems to care about that.

81So in order just to accommodate the system, what I am doing is, as I am reading it now - well I do not think there is anything - I - what I have said about the sentence is what I have said about the sentence, and that is the sentence.  But in order to make it work electronically without glitch or problem, there are two community corrections orders. 

82They run together, and have the same conditions.  The first one is in respect of the - or one is in respect of the drug matters, and that is listed at the top of that order, and the second is in respect of the indictable firearms matters, and the - yes, and also the summary offence is included in that.

83All right, so I only need to read out one of them to you, because they are exactly the same.  But you will have to sign two documents.  You can come out of the dock now and sit or stand - stand next to or near Mr - all right, so they are exactly the same but I will only read out one.

84They run for 42 months, the combination of them runs for 42 months from today.  The end date is 2 January 2022.  You must attend at the Pakenham Community Corrections office within two clear working days of today.  The address is on the document.

85The usual terms are you must not commit another offence for which you could be imprisoned during the order.  If you did, you would come back before me.  If you breached any of these conditions you would come back before me for resentence on these matters.

86You must comply with a requirement under a regulation that prohibits you attending any appointment, program or the like in possession of illegal drugs, or affected by drugs or alcohol.  You must report to and receive visits from Community Corrections.

87You must attend, as I have said, at that Community Corrections centre within two days of today.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission.  You must obey all of their lawful instructions and directions.

88The additional condition is you perform 400 hours of unpaid work over that period of 42 months as you are directed.  Now, do you understand that?

89OFFENDER:  Yes.

90HIS HONOUR:  And do you agree to it?

91OFFENDER:  Yes.

92HIS HONOUR:  I will hand you both documents, you need to sign it.  I will sign that now too.  All right.  We will hand those documents down, they can be photocopied and given to the various parties.  Do you want one, Ms Guesdon?

93MS GUESDON:  Yes Your Honour.

94HIS HONOUR:  Do I need to do anything else?  I need to sign those orders in chambers, so I will leave the Bench now, thank you.

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