Director of Public Prosecutions v Djokovic

[2019] VCC 1848

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00357

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL DJOKOVIC

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2019
DATE OF SENTENCE:	12 November 2019
CASE MAY BE CITED AS:	DPP v Djokovic
MEDIUM NEUTRAL CITATION:	[2019] VCC 1848

REASONS FOR SENTENCE
---

Subject:  Armed robbery.
Sentence:  3 years' imprisonment with a non-parole period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Keath
For the Accused	Mr D. Swan

HIS HONOUR: 

1Daniel Djokovic, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is imprisonment for 25 years, and one charge of possession of a drug of dependence, heroin, for which the maximum penalty in the circumstances of this case is imprisonment for one year. 

2In so far as Charge 1, armed robbery, is concerned, because one of the victims was slightly injured, the offence you have committed is regarded in law as a 'Category 2 offence' as defined in the Sentencing Act 1991 ('the Act'). Section 5(2H) of the Act provides that in those circumstances in sentencing an offender for this offence the court must impose a custodial sentence unless, relevantly here, there are substantial and compelling circumstances that are exceptional, and rare, that justify the court in not making a non-custodial sentence. Here, no such circumstances exist, and I must impose an immediate custodial sentence.

3In addition, you pleaded guilty to a related summary charge, and you agreed to having that matter dealt with by me in this court.  The summary charge was dealing with property suspected of being the proceeds of crime for which the maximum penalty is imprisonment for two years.

4The circumstances of your offending are set out in a prosecution opening that was tendered in evidence and read to the court by the prosecutor.  Your counsel, Mr Swan agreed that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail in the summary.

5At about 11.00 pm on 23 November 2018 you robbed two unarmed operators of a business conducted in a caravan within Melbourne Central Shopping Centre.  They were an easy target.  You were seen loitering near the caravan for some time before the offence.  As they were closing their caravan you approached them and asked them for a band aid.  The victims obliged you giving you two band aids.  A short time later you approached one of the victims demanding she give you $500 whilst holding a pair of scissors with the blade pointing towards one of the victims.  You said, 'If you don't give me $500, I will hurt you'.  You added, 'Don't yell, don't ask for help, don't look behind me or I will hurt you'.  You then said, 'I don't want to hurt you, don't yell don't try to do some tricky things, just give me the money that you have'.  You repeated, 'Give me $500'.

6One of the victims told you, 'We can only give you $200'.  You said, 'Yes $200 give it to me right now and I promise I won't hurt you'.  One of the victims then gave you $200 and tried to push you away from the caravan and as she did so she received a minor cut from the scissors you were holding.  I am satisfied this was unintentional.

7You then fled the scene but one of the victims saw you on a tram about six days later.  She called police and you were arrested.  When arrested you were found in possession of three small rocks of heroin (Charge 2), and other items including sunglasses and other items suspected of being the proceeds of crime.

8You told police you used the money to buy drugs and you had made no threats and you did not hurt either victim and you had no intention to do so. 

9I accept this offending was carried out to finance your long existing addiction to heroin.  It was a robbery of a soft defenceless targets but did not have the features of more serious offending.  You had no disguise and it was relatively unsophisticated offending.  Best described I think as opportunistic although it would appear you spent some time sizing up your target.  Nevertheless, what you did instilled fear into the victims.  You held a weapon and you threatened to use it.  They are features of this kind of offending which makes offending of this kind serious and sentences must appropriately reflect proper application of the principle of general deterrence, repudiation and protection of the public.  I accept you possessed heroin for self-use.

10I admitted into evidence victim impact statements from the two victims.  One of them in particular was put in fear by you and has had emotional difficulty putting this offending behind her.  In passing sentence, I have taken the victim impact statements into account, as I must.

11When you pleaded guilty you also admitted a limited criminal history from two previous court appearances.  On 3 July 2018 you were convicted of robbery and dishonesty offences in the Magistrates' Court.  You were convicted and placed on a Community Corrections Order for 12 months.  An aggravating factor of your offending therefore is the fact this offending occurred whilst you were serving a Community Corrections Order for robbery.

12Your offending I think whilst serious falls towards the lower end of this kind of offending.  Having said that, the sentence I impose must in your case properly have regard to the application of the principle of specific deterrence.  Four months before the offending you were given a non- custodial disposition and the opportunity to address your drug addiction.  You did not take advantage of that disposition and now you find yourself facing a term of imprisonment for the first time at the age of 42.

13Your counsel, Mr Swan filed a helpful outline of submissions on your behalf and I draw upon a number of facts from that submission.  You were born in Belgrade and migrated to Australia with your parents.  You have a younger sister and an older paternal half-sister who lives in Germany.  I was told and accept that as a young child you were exposed to domestic violence within the family.  You were educated at schools in Hampton Park to Year 10 level.  At age 16 your parents separated which you found confronting and this affected the way you approached inter personal relationships.  Both your parents have returned to Serbia and you remain in contact with both of them, who are supportive of you.

14You were admitted to Odyssey House for drug addiction at Lower Plenty in March of this year but exited from the program for breaking its rules on 19 September.  It was a pity that you had to be exited from the program because you had completed a number of the modules in the six months (182 days) that you were in the program whilst on bail for this offending.  I have taken this fact into account in arriving at the sentence that you will actually serve.  I have reduced the non-parole period treating the time you spent at Odyssey as time served in accordance with the principles expressed by the Court of Appeal in Akoka v R [2017] VSCA 214 at paragraphs 83 to 115. See also Exhibits 3 & 5.

15Since leaving Odyssey you have been living with your sister who provided a very good reference for you.  She has noticed a change for the better in you whilst on bail for this offending (Exhibit 6).  You are a single man with no children and have had a number of relationships.

16You have suffered from drug addiction for a number of years and despite this it is to your credit that you have managed to hold down a number of jobs mostly in factory work.  At the time of this offending you were unemployed but looking for work.  In 2014 you managed to buy a home subject to a mortgage in respect of which there are currently arrears.

17Between 2012 and 2013 you engaged in some study in the fashion design area and you hold a strong interest in this area and hope to establish your own casual menswear label.

18Your pathway to drug addiction is a well-worn one.  You have used almost every type of illicit drug but the drug you primarily use is heroin.  You supported your habit for some time from earnings but as your habit increased and work fell away you found yourself engaging in dishonest acts to support your habit.  Your entry to Odyssey House was the first meaningful engagement with rehabilitation, although in 2018 you had also sought help from First Step and Narcotics Anonymous.

19I received into evidence a psychological report from Laura Fleming (Exhibit 2).  She thought you a low to moderate risk of reoffending.  She diagnosed you as suffering from Opioid Use Disorder (severe in early remission).  Mr Swan submitted I should find you have good prospects for rehabilitation.  Whilst I accept there are positive signs you are motivated to rid yourself of drugs, I think your prospects for full rehabilitation must remain guarded, because you are a drug addict with a severe addiction in remission.

20You have pleaded guilty to the charges, and that is to your credit.  By your pleas of guilty you have saved the time and costs of a trial and you have saved the victims from having to give evidence reliving these events.  By your pleas of guilty you have admitted responsibility for your crimes, and you have facilitated the administration of justice.  You indicated a plea of guilty to the charges at committal mention.  I treat you as having pleaded guilty at the earliest opportunity.  Because you have pleaded guilty at the earliest available opportunity you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  I accept you are remorseful for your offending.  Your remorse is reflected in your letter to the court (Exhibit 4) which I accept.

21In arriving at an appropriate sentence, I have taken all of the above factors into account and I have fixed a relatively short period of imprisonment before you are eligible for release on parole.

22On Charge 1 armed robbery you are convicted and sentence to a term of imprisonment of three (3) years.

23On Charge 2 possession of heroin you are convicted and discharged.

24On the summary charge of possession of proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 14 days.

25I fix a non-parole period of 18 months before which you are eligible for parole.

26I declare that 143 days be reckoned as time already served under the sentences passed this day be entered into the records of the court and be deducted administratively.

27For the purposes of s.6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty to the charges I would have imposed a term of imprisonment of four and a half years and fixed a non-parole period of three years' imprisonment.

28The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act 1958. The making of that order was not opposed which means that whilst in custody you may be approached by a police officer to provide a forensic sample from your body in the form of a swab from your mouth. If you refuse the officer may use reasonable force to obtain the sample.

29The prosecution also seeks the making of a disposal order which was not opposed, and I have signed it.  Any questions arising out of that, Mr Swan?

30MR SWAN:  Your Honour, just one issue.  My friend and I calculated the pre- sentence detention this morning.  We have 145 days as opposed to 143.

31HIS HONOUR:  Very well.  Do you agree with that?

32MS KEATH:  Yes, Your Honour.

33HIS HONOUR:  The declaration of pre-sentence detention will be 145 days.

34MS KEATH:  Your Honour, I wish to raise one matter.  The compensation order that was sought on the earlier occasion ‑ ‑ ‑

35HIS HONOUR:  It was not raised.

36MS KEATH:  It was not raised?

37HIS HONOUR:  It was not raised on the earlier occasion, is my recollection.

38MS KEATH:  All right.

39HIS HONOUR:  Is there a compensation order sought?

40MS KEATH:  I believe so, Your Honour.  However, I may be mistaken.

41HIS HONOUR:  I do not think it was mentioned.  By anyone.  What sort?

42MS KEATH:  I believe it was in relation to the $200 that was taken as well as the ambulance costs.

43MR SWAN:  Your Honour, I do not recall whether that was specifically raised at the plea.  I know that it had been raised between the parties in advance of the plea and Mr Djokovic has given instructions to consent to the making of such an order, if it is made.

44HIS HONOUR:  I am sure it was not raised in the court.

45MR SWAN:  Yes.

46MS KEATH:  I apologise, Your Honour.

47HIS HONOUR:  Well I have got a document in front of me that indicates that the amount of $732 is being sought.  What is that for?

48MS KEATH:  That is correct, Your Honour.  So that includes the $200 for the money that was taken from the victims.

49HIS HONOUR:  Yes.

50MS KEATH:  As well as the 500 and was it 32, sorry?

51HIS HONOUR:  $32.

52MS KEATH:  $32 that - essentially the victims called an ambulance as they thought they may have contracted a disease from the cut and that was for the costs of the ambulance.

53HIS HONOUR:  Is that opposed, Mr Swan?

54MR SWAN:  No, Your Honour.

55HIS HONOUR:  Very well.  I will make a compensation order in favour of Zin and Zu Al, in the sum of $732.

56MS KEATH:  Thank you, Your Honour.

57HIS HONOUR:  If you could submit an order to my associate and I will sign it.

58MS KEATH:  Yes, of course.

59HIS HONOUR:  Take Mr Djokovic back into custody please.

‑ ‑ ‑