Director of Public Prosecutions v Erdeljan, Zoran
[2013] VCC 467
•22 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01935
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZORAN ERDELJAN |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2013 | |
DATE OF SENTENCE: | 22 April 2013 | |
CASE MAY BE CITED AS: | DPP v Erdeljan, Zoran | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 467 | |
REASONS FOR SENTENCE
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Subject: Recklessly causing injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ayres | OPP |
| For the Accused | Ms M. Mykytowycz | Galbally & O’Bryan |
HIS HONOUR:
1 Zoran Erdeljan, you have pleaded guilty to one charge of recklessly causing injury. The maximum penalty is 5 years imprisonment.
2 The prosecutor, Mr Ayres, opened the circumstances of the offending by reading from a written document and tendered this document which is headed ‘Summary of Prosecution Opening’. The facts were accepted by you, through your counsel Ms Mykytowycz..
3 In short, about midday on 4 March 2012 you and three others went to the home of the victim and his partner believing that they had stolen drugs from one of your group. You attended because you were asked by one of your group, an elderly person who believed his cannabis had been stolen. You attended to assist him. You had a close relationship with this person. In the course of an altercation outside the victim’s premises you head-butted the victim twice and wrestled with him in the course of which you slashed his right forearm with a knife.
4 The victim sustained a 3cm wide and half cm deep wound to his forearm resulting in a permanent scar, bleeding, pain and soreness. You were arrested later that evening. You were interviewed and made some admissions but claimed self-defence and in any event denied using a knife.
5 I accept that the knife was obtained by you after you arrived at the scene, perhaps from your elderly co-offender, who has pleaded not guilty and has a trial listed in this court in September 2013.
6 You were released on bail and after being threatened with retribution for your assault on the victim, you fled. You were re-arrested in NSW about 2 weeks later and have now spent 395 days in pre-sentence detention on remand as a non-sentenced prisoner.
7 You pleaded guilty soon after the committal proceedings in October last year. The case was resolved upon you agreeing to plead to the current charge with other more serious allegations not being pursued. Your counsel described this as a very favourable settlement and submitted that it was necessary to hold the committal hearing to achieve this result. I am prepared to accept this.
8 You must benefit from your plea of guilty. It has utilitarian benefits for the administration of criminal justice, saving time, expense and the need for witnesses to give evidence at trial. However, it is not a plea at the first reasonable opportunity. I acknowledge that your plea is an acceptance of responsibility for your conduct but if it reflects remorse the weight of this remorse on the material before me is minimal.
9 Your counsel tendered an ‘Outline of Submissions for Plea’, a psychological report from Dr Michelle Wauchope, a number of certificates relating to prison courses and discharge documents from St Vincent’s Hospital.
10 The latter concern an attack on you in prison when you had your face slashed with a ‘box-cutter’ by people you believe were acting on behalf of your victims.
11 Your counsel sketched your background which was comprehensively detailed in Dr Wauchope’s report and your counsel’s written outline of submissions. I will not repeat the details. Despite a difficult upbringing your parents attended court to support you.
12 You have a lengthy criminal history but as noted in discussion you have no history for violence, rather your criminal history is dominated by dishonesty, drug and driving matters. You are a long term drug user developing a heroin addiction from about the age of 17. You receive a disability pension because of your drug and other, probably related, health problems. Although, as just noted, you have no prior criminal history for violent offending you do have a number of prior matters for what might be generically described as possessing weapons.
13 Dr Wauchope thinks you have dysfunctional coping skills due to your difficult upbringing and that you have turned to substance abuse to manage emotional problems. She considered that you have a number of personality vulnerabilities, weaknesses and problems which are a direct result of childhood difficulties and which explain your offending as well as other compulsive and destructive conduct.
14 Your counsel argued that your offending has decreased in recent years and it is positive that you were last sentenced to immediate imprisonment in 2006. Additionally, you successfully completed a Community Based Order imposed at the end of 2008. However, you were placed on a suspended sentence of 4 months imprisonment at the end of 2011 and the current offending was committed during the currency of and will breach that order.
15 It is correct, as both parties seem to agree, that I should treat your rehabilitation prospects as guarded. You are now 46 years old and must be approaching the age at which you either cease offending or your prospects will be increasingly bleak. You have a 24 year old son with whom you maintain good relations. Your son has a daughter aged 1. As noted a moment ago your parents attended court to support you. You have a younger brother who is married, has 4 children, and lives with your parents. In the past you have worked hard having apparently been influenced by hard working parents. You are currently on a methadone program. Accordingly, despite being guarded about your prospects for rehabilitation you are well poised at the moment to continue your rehabilitative efforts.
16 The plea submissions were approached on the basis of acknowledging the desirability of allowing you to be immediately released. This would achieve a number of purposes including fostering and encouraging your continued rehabilitation. Importantly, your family is at a critical point. Your grandmother who assisted in your raising is perilously ill and the family have been told to prepare for her death. Obviously, you want to be with your family at this time.
17 Your counsel submitted that I should impose a sentence of 12 months imprisonment to allow your immediate release. She described this as a ‘straight sentence’ without the fixing of a non-parole period. The prosecution submitted that this was within range as would be a slightly longer sentence with a partial suspension to enable your immediate release.
18 As I noted in discussion these options seem to me to be the realistic options in your case. I have reservations about whether a sentence of 12 months imprisonment is sufficient in all the circumstances of your case. The use of a knife is clearly very serious and although this is your first violent offence as such, you have a long history of offending, have spent much time in prison and have failed to take advantage of previous rehabilitative opportunities. Nevertheless I propose to take this course in the hope that the leniency you are being shown will encourage you to take this opportunity to focus on your rehabilitation on release from custody today.
19 You will be convicted and sentenced to 12 months imprisonment.
20 I declare that you have served 395 days of pre-sentence detention and that this is to be reckoned as time already served on the sentence I have imposed. Accordingly, you have completed the sentence I have imposed.
21 Had you not pleaded guilty I expect I would have sentenced you to about 18 months imprisonment and would have fixed a non-parole period of about 12 months.
22 I will sign the Disposal Order that has been prepared.
23 (Order signed and acknowledged.)
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