Director of Public Prosecutions v Dordevic

[2015] VCC 1734

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01474

DIRECTOR OF PUBLIC PROSECUTIONS

v

SLOBODAN DORDEVIC

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2015
DATE OF SENTENCE:	27 November 2015
CASE MAY BE CITED AS:	DPP v Dordevic
MEDIUM NEUTRAL CITATION:	[2015] VCC 1734

REASONS FOR SENTENCE
---

Subject: criminal law – sentence
Catchwords: traffick drug of dependence – prohibited person possessing firearm -  prohibited person possessing imitation firearm – related summary offences- commenced serious  offending at 39 – adult stable home life -  negative peer group  - reared in Croatia  during  1991 war  - endured torture – post traumatic stress disorder -  acquired cognitive defects – vulnerable to  manipulation – good prospects of rehabilitation.
Sentence:  23 months imprisonment – 2 year CCO with conditions and judicial monitoring.

---

APPEARANCES:	Counsel	Solicitors
For Director of Public Prosecutions	Ms J Malobabic Ms N. Resstel-Pires  (at sentence)	Office of Public Prosecutions
For the Accused	Mr L. Barker	Valos Black & Associates

HER HONOUR:

1Slobodan Dordevic, you have pleaded guilty to seven charges on an indictment and four summary charges. 

2I shall list the indictable charges, noting at the same time the maximum penalty applicable.  They are as follows.  Two charges of trafficking a drug of dependence, amphetamine in one case and cocaine in the other, 15 years maximum.  Two charges of being a prohibited person in possession of a firearm, ten years maximum or 1200 penalty units.  One charge of being a prohibited person possessing an imitation firearm, the same maximum penalty.  One charge of possessing a firearm without a licence, with the same firearm being stored in an insecure manner, four years' imprisonment or 240 penalty units maximum and one charge of possession of counterfeit money, ten years' imprisonment.

3The summary charges are as follows.  One charge of possessing prohibited weapons without exemption or approval and the maximum penalty is two years' imprisonment, or 240 penalty units.  One charge of dealing with property suspected of being the proceeds of crime, and the maximum penalty is two years' imprisonment.  One charge of contravening a personal safety intervention order, with a two year imprisonment maximum, or 240 penalty units or both, and one charge of committing an indictable offence, whilst on bail, three months' imprisonment maximum penalty or 30 penalty units.

4The police executed a search warrant at your home on 13 January 2015, where you were living with your family.  In the house, they found quantities of drugs, a $50 counterfeit note, a knife with a curved double-edged blade and, on your bedside table, a paintball gun with the hopper and gas cylinder removed.  Also in the bedroom was $1,995.00 cash.

5The other items were found in the rear shed and in your car, with cash being found on your person.  The two quantities of cash are the subject of the second of the four summary charges dealing with the suspected proceeds of crime.  An air rifle was found in the shed located next to a cupboard, this being the charge of an unlicensed person, failing to store a firearm in a secure manner.

6Also found were a homemade double-edged knife, a sword and a pair of nunchukas.  These are the subject of the first of the four summary charges.  In total, police seized 154.1 grams of methylamphetamine at an approximate purity of between 77 and 82 per cent, resulting in a total quantity of pure methylamphetamine of 119 grams.

7They seized 5.5 grams of cocaine, with a purity of around 27 to 29 per cent.  Also located were quantities of powders used as cutting agents and plastic deal bags.  In the car, a black travel case was found containing portable scales, empty deal bags and two plastic bags containing small amounts of drugs.

8The third of the associated summary charges can be described in this way.  In August 2014, the Frankston Magistrates' Court issued a personal protection intervention order against you, prohibiting you from contacting or communicating with Shaun Saunders, an associate of yours in relation to the supply of drugs.  Mr Saunders had contacted you after this order was made, and you replied, resulting in the breach of the order.

9The fourth summary charge relates to the fact that you committed these charges whilst on bail for other matters, which were heard at Dandenong Magistrates' Court on 4 February this year.  You were sentenced to an aggregate sentence of eight months' imprisonment for a number of offences, including affray, possessing drugs and carrying firearms.

10Apart from a breach of fishing laws in 2002, suggesting perhaps a cavalier approach to abiding by the law, your criminal history otherwise dates from 2007.  At the age of about 39, you began offending at a level which saw you immediately sentenced to prison for 12 months, with a minimum period of four months.  These offences included trafficking drugs, weapons offences and dishonesty.  Two years later, you were placed on a four month suspended sentence for a further weapon offence and handling stolen goods. 

11Some explanations were offered through your counsel, Mr Barker, for your offending, beginning with the fact that your serious offending commenced at a relatively late age, when you had fallen into association with an increasingly negative peer group.  This was despite the fact that you are a married man with four children, living in a stable home and with a successful painting business.

12You were able to keep working, maintaining painting contracts with two childcare centres while using cannabis and methylamphetamine.  The negative peer group with whom you had become involved led to a fight in 2014, in which you were assaulted, leading to your possession of weapons at home which you regarded as necessary to protect your family.

13At the time you realised something needed to change in your life and you began seeing a psychologist, Dr John Di Battista.  He has diagnosed that you are suffering from a major depressive disorder, with co-morbid post-traumatic stress disorder.  Your decision to seek help in this way is an indication that you have some insight into your problematic behaviour. 

14Unfortunately, your background set the scene for your suffering in this way.  You were born in Germany, of a Serbian family who migrated to Australia when you were two years old.  You are now 45.  Tragically, your father died in an industrial accident about two years later and your mother struggled to raise her five very young children, speaking no English and with no family here.

15She went to Croatia to live with her sister and she remarried there, but you did not get on well with your step-father and left home at the age of 14.  You managed to complete school and then worked as a woodcutter, but ethnic tensions increased and the war between the Serbs and the Croats erupted in early 1991.  You were conscripted into the Serbian militia and subsequently into the Serbian Army where you remained for six years.

16During that time, you were captured by Croatian forces and tortured, and your experiences seem likely to have caused a moderately severe post-traumatic stress disorder.  You returned to Australia in 1996 at the end of the war.  You married your wife Annika who had a son from a previous relationship and three sons were born of the marriage, all four being raised together.

17You completed an apprenticeship as a boilermaker and later took up painting, to which you intend to return once you are released.  Recently, you were assessed by a neuropsychologist Dr Lindsay Vowells.  Her report and the evidence she gave in court assist in explaining how you appear to have changed from a relatively conforming citizen to an offender.

18The acquired cognitive deficits she found as a result of the tests she administered, together with her other observations of such characteristics as impaired ability to learn new material, poor long term memory and poor self-confidence, helped to explain why you became involved in criminal activities.

19For example, you have repeatedly had weapons in your possession, intending them to protect your family, and have not learned the lesson that to have them is a crime, and you have been punished for it before.  Dr Vowells considers that the brain deficits may have originated with your army experiences and have been exacerbated by drug use more recently.

20Similarly, she considers that your mood difficulties and swings towards depression have made you vulnerable to manipulation by others and to the use of illicit substances and you lack insight into the possibility of treatment for these mood problems, which could help you to avoid the need for escape using drugs.

21Dr Vowells considered that you will need assistance when released from prison, preferably by means of a case manager trained to work with the problems of acquired brain injury.  That person would be able to assist you to learn in a structured environment.  Without that, she believes your impulsivity and vulnerability to manipulation may raise the risk of reoffending.

22One of the aims of the sentence I will impose is to deter others from offending in the same way.  Drug trafficking is a pernicious crime because of the misery and suffering that the drugs themselves cause and the great harm done to society through the criminality involved in it. 

23Everyone who participates in this must be punished, taking into account their particular circumstances.  In your case, I have already referred to some of the mitigating factors stemming from your background, and the disorders from which you suffer.  You have pleaded guilty and so have avoided the need for an expensive and time-consuming trial and that means you are entitled to a discount on your sentence.  I also accept it as an indication of remorse. 

24You are finding prison difficult, missing your family and knowing your sons are finding your absence difficult.  The decision in the case of Verdins applies in your case, meaning that because of the problems diagnosed by Dr Vowells and Dr Di Battista, your criminal culpability is somewhat lessened and so I must modify the sentence to some degree.

25Despite your anxiety, you have been using your time in prison well and have impressed the authorities sufficiently to have been appointed as a disability mentor, a position gained only by those prisoners who have demonstrated consistent, good and responsible behaviour.  You have also taken part in courses and participated well.

26There are indications that you could succeed in your rehabilitation, subject to having appropriate support, which could be provided by means of a Community Correction Order to be served once you have completed a term of

27imprisonment.  You have been assessed as suitable for a Community Correction Order and I shall return to that shortly.

28Although you have remained in custody since 13 January, most of the ten months have been spent serving the sentence imposed by the Magistrates' Court on 4 February, which expired on 3 October.  It leaves 76 days attributable to these offences as pre-sentence detention.  I declare that time to be reckoned as already served and I shall cause it to be noted on the court record.  I have taken into account the principle of totality with reference to the time you have already spent in custody for those other matters. 

29I have already set out the range of maximum sentences provided by the legislature for these offences, with some clearly being much more serious than others.  All were associated in some way with the trafficking, and I consider there is little need for cumulation.  The firearms offences, although serious, are connected to your poor judgment and failure to learn from past wrongdoing, rather than with sinister and wanton criminality.  That is reflected in the sentences I have imposed.

30Would you stand now please, Mr Dordevic.  I sentence you to the following terms of imprisonment.  For Charge 1, 18 months.  For Charge 2, 15 months.  For each of Charges 3 and 4, nine months.  For Charge 5, three months.  For Charge 6, four months.  For Charge 7, one month. 

31This sentence for Charge 7 is a Commonwealth offence and so I must state the commencement date, which is today, and is to be served concurrently with the State sentences.

32For the first summary offence, listed as Charge 9, six months.  For the second summary offence, listed as Charge 10, six months.  For the third summary offence, listed as Charge 12, two months.  For the fourth summary offence, listed as Charge 13, one month.  The sentence for Charge 1 will be the base sentence for the purposes of cumulation, and I order that two months of the sentence for Charge 2 and one month of each of the sentences for Charge 3 and the summary charges No.10 and 13 be served in cumulation upon the base sentence. The other sentences are to be served concurrently. This results in a total effective sentence of 23 months.

33In addition, I impose a Community Corrections Order which will commence upon your release and will last for two years.  There will be convictions recorded and you will be under supervision.  You must perform 80 hours of unpaid community work over six months.  You must also have drug assessment and treatment, and assessment and treatment for mental health issues.  You must attend programs designed to reduce reoffending.

34Finally, you must come back to court from time to time for what is called judicial monitoring.  That means you will come into court and see me and there will be a Corrections officer appearing by video link who will have given me a report about your progress.  You do not need to come with your lawyer, nor will the prosecutor be here.  It will be an opportunity for me to briefly discuss your progress with you.  When you are released after completing your sentence, you must attend the Corrections Office at 46-50 Walker Street, Dandenong by 4 pm within two working days of your release from prison. 

35If you had pleaded not guilty to these charges I would have sentenced you to three years and three months' imprisonment with a non-parole period of two years and six months.

36The prosecution seeks orders for the forfeiture of the paintball gun and the air gun and for the disposal of items listed on a schedule.  Through your counsel you have indicated that you do not oppose those orders being made and I make those orders. 

37Are there any other matters that I have neglected or omitted?

38MS RESSTEL-PIRES:  No, Your Honour.  Just in respect of the 464 order, the accused is actually already on the DNA database so that order is no longer sought.

39HER HONOUR:  Mr Barker?

40MR BARKER:  Your Honour, is that intended to be a straight sentence with no minimal non-parole period?

41HER HONOUR:  Yes. If it is less than two years the court may fix a non-parole period, but it does not have to.

42MR BARKER:  Yes, I understand.

43HER HONOUR:  The Community Corrections Order has to bear the date of the first judicial monitoring.  That is being done now and then it will be available for your client to sign,
Mr Barker.  The date is 17 December 2017 at 9.30

44MR BARKER:  Your Honour, may my instructing solicitor please speak to my client?

45HER HONOUR:  Certainly, yes.

46

HER HONOUR:  I always consider that on a case by case basis.  Does

Mr Valos need to take some time with him?

47MR BARKER:  I think it might be a couple of minutes, yes.

48

HER HONOUR:  I am content to wait here.  Have you had enough time,

Mr Valos?

49MR VALOS:  Yes, Your Honour.

50HER HONOUR:  Thank you.

---