Director of Public Prosecutions v Dragojlovic

[2020] VCC 1811

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00982

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DRAGOJLOVIC

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2020
DATE OF SENTENCE:	13 November 2020
CASE MAY BE CITED AS:	DPP v Dragojlovic
MEDIUM NEUTRAL CITATION:	[2020] VCC 1811

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Procure sexual act by fraud – Moral culpability high – Criminality high - Minimal risk of reoffending – Community correction order – Fine

Legislation Cited: s.45(1) Crimes Act 1958

Cases Cited:DPP vBourke [2020] VSC 130 - Boulton v The Queen [2014] VSCA 342 - DPP v Diren [2020] VCC 61 - Di Paolo [2019] VSCA 194 - The Queen v Onnis [2013] VSCA 271- Macfie [2012] VSCA 314 - DPP vValsamakis [2018] VCC 2311

Sentence:Convicted and ordered to serve a community correction order for a period of three years with therapeutic conditions. Convicted and ordered to pay a fine in the sum of $10,000.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B Sonnett (Plea) Ms D Lardner (Sentence)	Solicitor, Office of Public Prosecutions
For the Accused	Mr R de Kretser	Armstrong Legal

HIS HONOUR: 

1Mr Michael Dragojlovic is aged 36.  He was 34 at the time of the commission of this crime having been born on 29 November 1983.  Mr Dragojlovic is an IT systems administrator.

2The plea was conducted remotely on 15 October 2020, when
Mr Sonnet appeared on behalf of the Director, for whom Ms Lardner appears today.  Mr de Kretser appeared on behalf of the accused and he appears also today.

3Indictment No.K10996357 involved one charge of procuring a sexual act by fraud which is an offence against s.45(1) of the Crimes Act, the seriousness of which is recognised by Parliament who have prescribed a maximum penalty of five years' imprisonment.

4In this instance, the sexual act with the victim was sexual intercourse, which was partaken in on the 30^th of September 2018.  The false representation was both explicit, in that there were discussions between the victim prior to the act of intercourse, that she required Mr Dragojlovic to wear a condom if they were to have intercourse; and implicit, in that when asked to replace the condom after the victim became concerned as to the state of the first condom, Mr Dragojlovic allowed the victim to replace the condom, whereby she understood that sexual intercourse was to take place with the protection of a condom.  However, such understanding proved to be fraudulent. I find that Mr Dragojlovic never intended to have sexual intercourse, to the level of ejaculation, without removing the condom.

5Mr de Kretser submitted that the offending was at the lower end, that it was spontaneous, was a discrete act and only involved an activity of a few minutes, see his submissions set out at [5] of Exhibit 1 of the defence submissions. I would reject such submission totally. It is necessary to relate this crime to its context. Firstly, Mr Dragojlovic had regularly attended this brothel. Secondly, he was well aware of the signs indicating the need to wear condoms. Thirdly, Mr Dragojlovic had previously had unprotected sex with prostitutes, and paid extra for such service, see his statement to Dr Barth, Exhibit 2, at [20]. Fourthly, Mr Dragojlovic was specifically aware that the complainant victim wanted only to participate in sex where a condom was used. Fifthly, as Mr Dragojlovic said to her after having specifically breached such requirement, 'It's just what I do.'

6I find such crime was deliberate, planned and done to ensure or enhance his own sexual excitement.

7As to the prosecutor's submissions, I would reject the proposition that this crime was aggravated by being an act of penetration.  This is the act which was contracted for between the parties, the fraud was doing it without a condom, see [5] of Exhibit B of the prosecutor's submissions.

8The second proposition of the prosecutor, which I also reject, is that this Court should give consideration to the Sex Work Act 1994 regulations.  The fact that the victim is a prostitute is irrelevant, except to provide the context of how this sexual act occurred.

9The third proposition which I reject is that the removal of the condom is an aggravating factor.  Such is in fact the fraud and the essence of the crime.  True it is that the consequences of such fraud caused:

a.distress to the victim;

b.risk of pregnancy to her; and

c.her being subjected to the risk of a sexually transmitted infection being passed as a result of the sex act.

10All of those consequences have to be considered.

11I find that the moral culpability of Mr Dragojlovic is high, as is his criminality.

12There is no victim impact statement.  In the depositions, in particular at p.19, [31], the victim said she felt violated.  She was concerned as to pregnancy and contracting a sexually transmitted infection. At [31], she was concerned, when Mr Dragojlovic said to her afterwards, 'That's what [I do] to prostitutes.'

13Given my finding as to the objective criminality, such calls for a sentence which effects general deterrence, specific deterrence and denunciation.  The prosecution submitted that in order to effect those principles, a period of imprisonment was appropriate, that is immediate imprisonment, but that a s.44 order was within the range.

14The plea of Mr de Kretser was to the effect that a community corrections order, in all of the circumstances, was appropriate, see [65] of Exhibit 1, being Mr de Kretser's written submissions.  The basis of that submission was as follows.  Firstly, that his client has no priors.  Mr Dragojlovic has reached the age of 36.  Mr Dragojlovic comes from a good family, he has had the benefit of good education, and has demonstrated an excellent employment history. 

15Secondly, by way of Mr Dragojlovic’s plea, he has demonstrated remorse, in particular see Exhibit 6, which is his letter of apology to the Court, which I accept. The expressions of remorse made to Dr Barth, set out in the report, Exhibit 2 at [32], and further, the expression of remorse to his father set out in the letter from his father, Exhibit 7, confirm such.

16The third matter that Mr de Kretser took me to is Mr Dragojlovic’s own personal history, it is clear that he has had a somewhat thwarted sexual development and is particular naïve in that area.  Mr Dragojlovic seems to have difficulties by way of confusion and anxiety with his sexual development, as set out at [41] of Dr Barth's report, Exhibit 2. 

17Such confusion and anxiety impacts upon an avoidant personality disorder. Hence the use of pornography and prostitutes are Mr Dragojlovic’s dominant sexual experience.  In particular, insofar as Mr Dragojlovic is concerned, if I read from Dr Barth’s report, Exhibit 2, at [43]:

'In summary Mr Dragojlovic's significant interpersonal problems have contributed to his severe problems, having his needs for sexual intimacy satisfied in a healthier manner. Indeed, the more isolated and disconnected he has felt from any genuine emotional connection, the more dysfunctional his sexual behaviour has become.  Intervention which targets his problematic sexual adjustment is unequivocally warranted.'

18In that regard, the fourth point was that Mr Dragojlovic had voluntarily undertaken psychological counselling to assist in overcoming the problems demonstrated by Dr Barth.  I read again from Dr Barth's report at [50]:

'Notwithstanding the severity of his interpersonal and sexual problems, Mr Dragojlovic was very candid when discussing his need for change and his desire to engage in treatment to address his issues.  At risk of stating the obvious, the more treatment he is able to access, the better for his prospects in the community.'

19Such voluntary undertaking of counselling and treatment has been confirmed in the report of Patrick Newton, Exhibit 4, where four sessions have been undertaken of sexual offence therapy with Forensic Counsellor Mr Geoffrey Burrows from the period 4 September 2020 to 1 October 2020. It is noted by Mr Newton that these are very early steps.

20In addition, as Mr Michael Warner details in the psychologist's report at Exhibit 5, Mr Dragojlovic has also had eight counselling sessions with Mr Warner for the period 4 December 2019 through to 29 September 2020.

21The fifth matter concerns Mr Dragojlovic’s possible incarceration.  Naturally, Mr Dragojlovic is concerned as to being incarcerated given his age.  Dr Barth was of the view that such a sentence would not necessarily be more onerous to him than to other members of the community.  Mr Warner was of a different view. I must say, I think as best as I can understand Mr Dragojlovic's background and current circumstances, I would accord with the view of Mr Warner that a period of incarceration would weigh very heavily on him, and indeed far more heavily than the normal person.

22The sixth matter relied upon was the issue of delay. This related essentially, albeit that it's not a lengthy time from the period of offending, to the awaiting of a summary ruling as to whether the matter was to be heard summarily or not, which was not finally given until August of this year. During that period of two years since the offending, these proceedings, it was put, weighed upon Mr Dragojlovic. He has been very concerned, as I have already said, as to the risks of incarceration. Mr Dragojlovic had become depressed post-offence about such circumstances as determined by Dr Barth in his report, Exhibit 2, at [34].

23However, despite such circumstances, Mr Dragojlovic has become re-employed and as Dr Barth concluded, which I accept, presents as a minimal risk of reoffending, provided he continues with the appropriate treatment.

24The seventh matter was that this was a very valuable plea, as put by
Mr de Kretser, in circumstances where the victim not only did not want to make a victim impact statement, but was a reluctant witness.  The plea was therefore made valuable by those facts.  The plea has assisted justice, it is utilitarian in that it saves a trial and saves the community the cost of a trial. It is further utilitarian in the sense as demonstrated in the recent Supreme Court decision of Bourke [2020] VSC 130, [32] where it is a plea entered at times when it is particularly difficult to get appropriate Court time and to be able to list matters. All those matters go to his favour.

25The eighth factor was that importantly, albeit that it is readily accepted that the failure to wear a condom placed the victim at risk of pregnancy and of a sexually transmitted infection, the fact is that fortunately, neither of those circumstances eventuated.

26Ninthly, that Mr Dragojlovic was particularly cooperative and has entered an early plea, albeit that he did not do a record of interview. The agreement for the plea was made in November 2019.

27Mr de Kretser further relied upon the principles set out in Boulton v The Queen [2014] VSCA 342 in his submission whereby he sought a community correction determination without any immediate imprisonment. Without any undertaking to Mr de Kretser or his client, I indicated that I would seek a report. That report has been tendered today as Exhibit C and was positive.

28Both counsel gave to the Court a number of cases.  The one that is most analogous, is DPP v Diren [2020] VCC 61 a determination made in this Court, by Judge Wraight, which is similar, in circumstances, albeit that here we do not have the coercion element, and was a sentence indication. I give that determination judicial comity. I note that in that case, a community correction order was passed.

29The other cases are all of assistance as general guideposts, the circumstances are really so different, Di Paolo [2019] VSCA 194 involved far more grave and sustained conduct, as does The Queen v Onnis [2013] VSCA 271. In Macfie [2012] VSCA 314 the relevant offence is swamped by other charges, and Dhankiar [2015] VCC 184, was a decision in this Court by Judge Patrick, at that time the relevant offence was s.57 under the Crimes Act, albeit it had the same penalty. The ruse used in that case was far more dramatic and involved mutual sexual matters, albeit dangerous for the complainants but in the circumstances, a community corrections order was given. 

30All of those in the instinctive synthesis required in this case are taken into account by me.  I should mention the final case, DPP vValsamakis [2018] VCC 2311, a determination of Judge Riddell in this Court, really again it was not a comparison, because there were a number of complainants, quite bizarre circumstances and lies told as to the type of activity and a number of other offences.

31As I say, in the end, all of those references, which I thank counsel for, are of assistance in the instinctive process being undertaken as required by the High Court, as is set out in Dalgliesh [2017] 91 ALJR 1063, to impose as a result of a plea and hearing all of the matters of mitigation an individualised just sentence based upon the circumstances of the case.

32I must say that the consideration of the submissions of counsel has created for the Court a difficult balancing process.  I accept the submission of Mr de Kretser that this offence is lower in the scale of sexual offending in the Crimes Act, which is obvious given the maximum penalty, compared to far more serious offences.  Against that of course, I have found the criminality here deliberate and serious, invoking the need for a sentence which effects general deterrence, specific deterrence, punishment and condemnation by society of this type of deliberate action.

33To be balanced against that are all the matters put by Mr de Kretser in regard to a person who comes before the Court at the age of 36 without any priors whatsoever, the matters that I have refereed to and in addition the provisions of s.5 of the Sentencing Act, which I have to take into account.

34Having given consideration to what I have described as a fine balance in this case, I have determined, despite the submissions of the prosecution, to accept the proposition put by the defence. Before I announce that however, I should indicate, Mr de Kretser, generally that my intent is not only to impose a community correction order. That community correction order will be therapeutic and will not involve any work requirement.  I do however, as part of the need to punish your client for this crime, intend to invoke a fine.  My intent is that that fine will be in the sum of $10,000.  Essentially, that is made up by way of 600 penalty units of the relevant level at that time, which was $158.57.

35In addition, the maximum that can be provided in the circumstances is one of 600 penalty units, but I intend to impose 63 penalty units.

36So what I would intend to do, insofar as the community corrections order, the conditions would be that it was therapeutic, that it involves treatment which may well be a continuation of a current treatment, I am not sure, for sexual offending which clearly he needs treatment to ensure no further reoffending, treatment to ensure there are no issues with drugs or alcohol and supervision in regard to those matters and that that period be for a period of three years and you'll explain to your client, which I am sure given his intelligence, it does not need much explanation but if he breaches that order, he knows what the alternative is if he comes back again.

37MR de KRETSER:  Yes, Your Honour.

38HIS HONOUR:  So that will be what I am proposing is a three year community corrections order and a fine of $10,000.  I will stand down while you seek instructions in that matter.

39MR de KRETSER:  As Your Honour pleases, thank you.

40(Short adjournment.)

41Thank you, Your Honour, for that time.  I have explained the sentence, Your Honour, and Mr Dragojlovic is prepared to sign that community correction order and the fine as well.  Mr Dragojlovic understands the imposition of that penalty, what it means.

42HIS HONOUR:  Yes, thank you.

43MR de KRETSER:  Thank you.

44HIS HONOUR:  Yes, Mr Dragojlovic, could you stand up please?

45You will be convicted of this offence and you will be fined the sum of $10,000.  In addition, you will be placed on a community correction order which I intend to be therapeutic.  That order will involve supervision, programs to help you to ensure that you do not reoffend which I am satisfied that there is a very low risk of, programs to help you ensure that you do not become impacted by drugs or alcohol, again which I understand from your background, there is very little risk of.

46Importantly, programs to assist you in your sexual development, to ensure that problems do not occur in that regard, and further that you be supervised.

47I am told by Mr de Kretser that you are accepting of that in those terms.  We will prepare the document for you to sign.

48It is necessary for me to tell you what the benefit of your plea in this matter was.  Can I indicate to you that had you not pleaded guilty, this is a different thing to determine because the legislation relates to one factor only and that is your plea of guilty, but as I have detailed, there are many factors I have had to take into account in this case but doing as best I can, can I indicate to you that rather than a fine and a community correction order for three years, had you not pleaded guilty and were then found guilty as a result of a trial, the appropriate sentence thereby would have been a period of immediate imprisonment of two and a half years with 15 months to serve prior to being eligible for parole.

49It is necessary to me, even though that is obviously speculative, to put that to you because Parliament requires you to understand the value of your plea.  Yes, take a seat and we will prepare the document.

50MR de KRETSER:  As Your Honour pleases.

51HIS HONOUR:  Yes, if you could assist, Mr de Kretser, we will get that done.

52MR de KRETSER:  Thank you, Your Honour.  Thank you, Your Honour.

53HIS HONOUR:  Yes, can I thank both counsel in the matter.  There were particular issues about this matter whereby your submissions were of much assistance.  So I have signed that document.  Yes, thank you, Ms Lardner and thank you, Mr de Kretser.

54MS LARDNER:  Thank you, Your Honour.

55MR de KRETSER:  Thank you, Your Honour.

56HIS HONOUR:  Yes, Mr Dragojlovic, I am sure that the estimate made of you by Dr Barth as to the fact that you will not commit any further offending is correct and that you will continue to ensure, in your own interests, that you maintain that treatment regime.  But I certainly do not want to see you again, because I indicate to you that if a failure to comply with the terms of the community correction order would not end up in a good result as far as you are concerned.  Good luck.

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