Director of Public Prosecutions v Djurkovic
[2024] VCC 1091
•19 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00706
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOBAN DJURKOVIC |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2024 |
DATE OF SENTENCE: | 19 July 2024 |
CASE MAY BE CITED AS: | DPP v Djurkovic |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1091 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW- Sentence
Catchwords: Aggravated Burglary- Person Present; Common Law Assault
Legislation Cited:
Cases Cited: Boulton v The Queen [2014] VSCA 342; DPP v Reynolds (a pseudonym) [2022] VSCA 263
Sentence: Six months' imprisonment combined with a Community Corrections
Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office Of Public Prosecutions |
For the Accused | Ms D. Lamovie | Victoria Legal Aid |
HIS HONOUR:
1Boban Djurkovic, on 16 May 2024 following a sentence indication hearing you pleaded guilty to a charge of aggravated burglary and common assault. The sentence I indicated to you was six months' imprisonment combined with a community corrections order.
2Your offending was in the company of two others, a William McKinnon and a Richard Pears. At the time you pleaded guilty they were heading to a trial. That trial has concluded with some verdicts of guilty and some verdicts of not guilty. A plea for both is fixed for late August.
3The prosecution case against you is, to a degree, different to that of the other co-accused, in particular the main offender, McKinnon. The prosecution summary of facts for the sentence indication and the plea made clear that McKinnon had a dispute with the victim in the weeks leading up to the offending. There were incidents involving damaging property and then paybacks on both sides. It is clear that the victim was in fear of McKinnon.
4On 9 September 2022 you joined the co-accused outside a bottle shop drinking until just before midnight. McKinnon then went on his own to the victim's premises and got in while the victim and his housemate were sleeping. McKinnon attacked both men. After 20 minutes or so you arrived and assisted McKinnon with his assault on the victim. You and the other co-accused, Pears, it seems held the victim while McKinnon punched him.
5In the whole of the assault of the victim he suffered significant injuries mainly being fractured ribs. He was hospitalised for five days. There have been significant adverse impacts as the victim himself made clear in his recent victim impact statement. What he said was,
'Since the crime I have struggled with a multitude of things that have negatively impacted my overall well-being'.
6He then outlined some of those. Commencing with sleeping being incredibly difficult. He has frequent, disturbing and realistic nightmares. Also, it seems that he has, as a consequence, taken up or been afflicted by sleepwalking, shouting and striking out. It is hard for his partner in those circumstances.
7Another domain in which he has been impacted is his emotions. He says,
'I struggle daily with intense feelings that at times makes me feel that I have no control over my own emotions. Intense feelings of guilt, shame, anxiety do not disappear'.
8Also, he feels judged and paranoid. Paranoid that people are going to get him or are watching him or the like. He is worried about that and hypervigilant. He says,
'At times I feel totally emotionally numb, and I don't want to see anyone. So getting up for work is hard. Concentrating is hard and feelings of being happy and positive are hard'.
9He is not as active. So, in another area of his life, his enjoyment of life, he is not as active as he used to be and does not enjoy things such as his sport and physical activity which meant a lot to him. He does not want to socialise or have close relationships. He says his mood changes really fast. He can get upset, angry and emotional really quickly which he hates as he wants to feel in control of his emotions. He says things that he does not mean in the moment and then he apologises and feels like a bad person.
10He speaks about overall, there being a feeling of being overwhelmed and it has not gone away since the crime was committed. But it does become worse at times when he talks about it or goes to places that remind him of it such as being in Sunshine, or seeing particular people.
11Physically the pain lasted, that is the impact of the broken ribs in particular, lasted for some significant time making it difficult for him to move or sleep. He says he feels isolated and alone. No real support from anyone other than his partner because most of his family and friends are overseas or interstate. This makes him frustrated. There are many other aspects that he outlines in his victim impact statement that I take into account. Some I do not because they do not relate to you. But overall he says,
'It feels that I cannot escape what happened no matter how hard I try. There are constant reminders every day of what happened and it's exhausting. While I'm seeking support for my mental health the symptoms sometimes feel like they are only getting worse'.
12He has some hope for the future. That is,
'One day I hope to be able to move on and with the right support I hope I can use my experience to help others get through their tough times'.
13So, the offending is plainly serious. You were part of a confrontational aggravated burglary late at night and in company. The victim suffered significant physical injuries and has ongoing psychological impact. He is entitled to feel safe in his home.
14However, in the assessment of the gravity of your criminal conduct what must be recognised is your lesser role. That said, the swelling of the numbers so that the victim faced three men aiding each other requires the court to denounce and give significant weight to general deterrence. Ordinarily a sentence involving years of imprisonment would be imposed.
15You rely on a number of matters in mitigation. The most prominent are the following.
a) You are 51 years old and have limited and dated criminal history and the offences in your dated criminal history are not relevant for these purposes or not particularly relevant. Thus, you have for many years worked hard and been law abiding. This crime was out of character. There is foundation for your reform.
b) Secondly, you look after your elderly father who is heavily dependent on you. Any time in custody was and will be more onerous because of your worries about him.
c) Next, as to your mental health, the medical legal psychologist reports by your lawyers, authored by Dr Dawson concluded that you have anxiety and stress due to your current dire legal circumstances, but you have underlying depression and some symptoms, without meeting the full criteria, of post‑traumatic stress disorder. These are matters that will make gaol harder or more onerous for you.
d) Also important is your plea was in effect a very early plea of guilty. A plea of guilty has utilitarian value and is an expression of remorse. It means your sentence will be less than it would have been had you pleaded not guilty and been found guilty of these offences.
16What is clear is that you have a significant problem with alcohol abuse. You were intoxicated at the time of the offending. You report that prior to being remanded you were drinking alcohol every day.
17More broadly as to your background and personal history, you were born in Melbourne. Your parents are from Serbia. Your father worked in a factory and your mother worked in the markets. When you were very young, I think as young as two years old, your parents separated. Your mother returned to Serbia, and you went with her. She has remained there and re-partnered. You state that 'despite being quite a bit poor' all your needs in childhood were met and you were treated well.
18You had little contact with your father while you lived in Serbia. You completed school to the equivalent of Year 11 in Serbia. After leaving school you attended military training. At 19 you did a year of national service and then worked in the markets with your mother before returning to live in Australia where you reunited with your father. You have remained in Australia since, as I understand it.
19You had two long term relationships. Whilst on bail you have established a new relationship with a woman who resides in Serbia. You do not have any children.
20When your last long-term relationship ended you did not cope, and you stopped working. You were required to sell the house you owned with your previous partner. You have not worked full time for the last seven years or so. You care for your elderly father at your private rental property and are in receipt of a carer's pension.
21Up until your relationship ended and you ceased working you had a good work history. You were a machine operator for 10 years in a wool factory and then a labourer in another factory for five years or so.
22Despite being disappointed, as it were, in your offending behaviour, your father has remained supportive of you. You have maintained your relationship with your mother and stepfather in Serbia.
23The submissions made on behalf of the prosecution at the sentence indication hearing and again at the plea was that the gravity of this aggravated burglary and subsequent assault required a sentence of imprisonment in the form of a head sentence and a non-parole period.
24Your counsel urged a combined sentence of imprisonment and a community corrections order. Further, it was urged, especially after the sentence indication hearing, that the imprisonment component be limited to time you had served on remand, being 70 days. In support of this submission your counsel called in aid what the Court of Appeal said in Boulton[1].
[1]Boultonv The Queen [2014] VSCA 342
25What I keep in mind is that in the important decision of the Court of Appeal in Boulton it is made clear that a community corrections order alone or combined with a term of imprisonment can be an appropriate sentence for serious crimes such as these. It was stated that a corrections order alone or combined can be imposed where in the past midrange sentences of imprisonment were the usual sentences. The Court of Appeal said that the community corrections regime changed the sentencing landscape. That is and it was emphasised in Boulton that a combined sentence or a corrections order can punish and deter. The community corrections aspect of the penalty also punishes but at the same time or simultaneously allows for a more enhanced and targeted rehabilitation.
26All that said, there are limits to the emphasis on rehabilitation at the expense of other sentencing principles, in particular general deterrence and denunciation. This was explained by the Court of Appeal in the later case of DPP v Reynolds[2].
[2]DPP v Reynolds (a pseudonym) [2022] VSCA 263
27It seems to me that your more limited role, your minor criminal history, the responsibility that you have to look after your father and the value of your plea, a combination sentence is within range but by a bare margin. The seriousness of confrontational aggravated burglary requires significant weight to be given to general deterrence and denunciation. A combination sentence limited to the time that you have served in custody on remand, in my view, does not meet the need for deterrence or denunciation.
28However, if some more gaol time is imposed, added to a lengthy community corrections order, then your rehabilitation is better facilitated while punishment and deterrence are properly acknowledged and expressed.
29I had you assessed for your suitability for a corrections order, and you were found suitable. The mental health assessment was particularly helpful indicating that you do require treatment for your serious problem with alcohol. Such treatment would also assist in dealing with your mental health problems of depression.
30I am mindful that the 70 days that you served on remand were in the more onerous prison conditions that existed at the time due to the pandemic. I had considered that the six-month sentence that I had indicated, together with a community corrections order, could or should be an aggregate sentence.
31The Court of Appeal in recent times has again spoken as to aggregate sentences. That parliament made clear that there is an appropriate place for aggregate sentences, but I am, I think, finding it difficult to read into the statute the principles expressed by the Court of Appeal in recent times and in other times about aggregate sentences. So out of caution I will not impose what is straightforward of being an aggregate sentence for being there and committing the assault but break it up and have some level of cumulation.
32In my view the assault aspect of this was the most serious, notwithstanding the much lower maximum term and the sense that the victim had that his home was violated and his safety impinged. That is because of the particular way that you were involved, coming later to the house and coming in when the events were already unfolding.
33So, for the offence of aggravated burglary, I impose a sentence of three months and a community corrections order that will be for two years and will have unpaid community work. I will explain that shortly.
34For the unlawful assault I sentence you to five months. One month of the sentence imposed on the aggravated burglary is cumulative upon the sentence imposed for the common law assault giving the six months.
35Both offences will have the community corrections order which will go for two years. The conditions that apply to that are, and I have taken into account what your counsel said regarding the need for unpaid work and the punishment aspects, and I have moderated from where I first was on it. The unpaid work component is 90 hours. You have to undergo treatment for your alcohol problem and assessment and treatment for mental health problems. The hours that you spend doing that can be deducted or counted as unpaid community work. You also have to be under supervision. So, they are the conditions that apply specifically to you.
36You have already done 70 days of the prison sentence that I have imposed. This figure having been reckoned, I now declare it as part of the sentence that I have just imposed. We will ensure that is entered into the records of the court so the prison authorities understand you have done 70 days of the sentence I have just imposed. How that is calculated administratively given the lockdowns and the like is a matter for the prison.
37Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of three years with a non-parole period of 18 months.
38We have the corrections order which has other conditions that apply to everyone. I will just read them out to you now and then if you consent you can sign that order.
39So, it will last for two years. It commences on the completion of the imprisonment. Everyone who is the subject of a corrections order has the following mandatory conditions.
40The first is very important. You must not commit another offence for which you could be imprisoned during the time that the order is in force. That is the full two years. Do not commit any offence during that period. You will come back before me if you do, and I will have to re-sentence you for these offences and any mercy will not be repeated.
41Almost every offence you can think of is punishable by imprisonment even if the magistrate just imposes a fine. So do not commit any offences during that time. In fact, do not commit any offences full stop.
42Now the other conditions are really about cooperation. Once you are released from prison you have got to get down to the Sunshine Community Corrections Centre within two days and report in and they will go through a process of induction. You have to report to and receive visits from the Office of Corrections. You have to let them know within two clear working days if you change your address or job, if you get one. You cannot leave Victoria without getting permission to do so. That is just for any trip over the border. So, they will probably give you permission but just ask and you have got to obey all their lawful instructions and directions. Just follow what they say.
43I will just repeat. You have to do 90 hours of unpaid community work. You have to undergo assessment and treatment for alcohol abuse and for mental health problems. All the hours spent there can be counted and you have got to be under the supervision of a community corrections officer.
44They are the conditions. I will provide the order to your counsel who will go down the back and get you to sign it if you consent.
45MS LAMOVIE: Thank you, Your Honour. Mr Djurkovic's signed the order and consented.
46HIS HONOUR: I take it there are no other orders sought?
47MR GRAY: There are none, Your Honour, no.
48HIS HONOUR: Thank you, counsel.
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