Director of Public Prosecutions v Everett

[2024] VCC 325

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-18-01237

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON EVERETT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2024
DATE OF SENTENCE:	27 February 2024
CASE MAY BE CITED AS:	DPP v Everett
MEDIUM NEUTRAL CITATION:	[2024] VCC 325

REASONS FOR SENTENCE

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Subject:Trial - sentencing

Catchwords:          Aggravated home invasion - cause injury intentionally - extortion with threat to kill or inflict injury - theft

Legislation Cited: 

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571

Sentence:7 years' imprisonment, 4 years and 4 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions on 19/02/2024 For the Director of Public Prosecutions on 27/02/2024	Mr A. Buckland Ms O. Chan	Office of Public Prosecutions
For the Accused	Mr A. Jackson	Michael J. Gleeson & Associates

HIS HONOUR:

1Jason Everett, you were found guilty by a jury on a charge of aggravated home invasion, for which the maximum penalty is 25 years’ imprisonment, a charge of causing injury intentionally, for which the maximum penalty is 10 years’ imprisonment, a charge of extortion with threat to kill or inflict injury, for which the maximum penalty is imprisonment for 15 years, and one charge of theft, for which the maximum penalty is 10 years’ imprisonment. 

2You also pleaded guilty to two other charges of theft, avoiding the necessity of a jury verdict on those matters.

3You have admitted prior convictions set out in a criminal history going back to 1994 when you were aged 18, the most recent prior conviction being on
18 August 2016.  I note that there are a number of offences which appear in your record involving violence, although it must be said that the offending for which you stand to be sentenced today is by far the most serious offending in your entire record. 

4The prosecution case can be stated as follows.  Your two victims, Mr Stefanovksi and Mr Matar, live together in a house in Wollert.

5Mr Stefanovski owned or had possession of an Audi motor vehicle that, on 11 January of 2018 at about 10.30 pm, was parked at those premises.  At that time, a Mr Bayamis, who had been employed by Mr Stefanovski in his cleaning business and had a dispute with him about money which Mr Bayamis claimed Mr Stefanovski owed him, went to the home of the two victims in Wollert, having recruited you and a person named William Thomason to attend with him with a view to demanding money from Mr Stefanovski.  When the three of you arrived at the address, you went to the front door.  You and Mr Thomason remained out of sight initially and Mr Bayamis persuaded Mr Stefanovski to open the front door.

6When he did so, Mr Bayamis called upon you and Mr Thomason to force your way into the premises, which you did.  At the time, Mr Everett, you had with you a torch or taser and were armed with a knife.  You very shortly afterwards punched Mr Stefanovski and hit him on the back of his head with the torch or taser object, causing a large gash to his head and knocking him to the floor.  He was dragged to the kitchen and assaulted further.  You hit him several times with the torch or taser object, causing him a number of further injuries.

7Whilst that was occurring, Mr Stefanovski managed to call his mother on his mobile phone.  The voice message function on the phone recorded the sounds of screaming that emanated from Mr Stefanovski during your assault upon him.  Shortly afterwards, Mr Matar emerged from the garage.  You threatened him with the knife that you were carrying and told him to sit down and not move or he would be hurt.  Mr Thomason then held Mr Stefanovski whilst he was being hit by you and Mr Bayamis.  He received a number of blows all over his body.  Mr Bayamis threatened to burn him and his entire family while he was in the house. 

8He demanded money whilst making those threats and then obtained Mr Stefanovski's bank details and subsequently made trips to the bank using his bankcard and obtained about $2,300 from his bank account.  You left the house shortly after the assault upon Mr Stefanovski that I have described.  When you left you took with you a laptop that belonged to Mr Stefanovski and keys to the Audi vehicle.  You also stole the Audi vehicle.  As I have indicated, you pleaded guilty to the theft of the keys and the theft of the motor vehicle.  You contested the theft of the laptop which was the subject of a jury verdict of guilty on Charge 5 on the indictment.

9Mr Matar took Mr Stefanovski to the Northern Hospital, where he was treated for his injuries.  It was noted that he suffered two lacerations to his head: one to his right eyebrow which required stitches, and one to the back of the head which was glued.  He also suffered an abrasion and tenderness on his right elbow. 

10You were arrested on 15 January 2018 and interviewed by police.  You denied having anything to do with the offending.  Each of the victims, Stefanovski and Matar, provided victim impact statements.  They set out the effects that the experience had upon them at the time and, apart from the physical injuries, the terrifying nature of the invasion into their home.

11Unfortunately, both of the victim impact statements are dated April of 2018 and therefore tell me nothing at all about any ongoing effects that the offending might have had upon them, although it is reasonable to infer that there would have been long-term psychological effects occasioned by the invasion of their property and the terrifying nature of the assaults upon Mr Stefanovski in particular.

12Turning to matters personal to you.  Your counsel provided me with, what I might respectfully say, is a very helpful outline of plea submissions dated 14 February 2024.  It is Exhibit 1.  There was a report from the Alcohol & Drug Services at the Metropolitan Remand Centre headed 'Long Program Completion Advice' setting out details of many of the rehabilitative steps that you have taken whilst you were in custody.  That document is dated 31 May 2018 and so it is now quite old.  That is Exhibit 2. 

13Exhibit 3 is a letter from the Department of Justice which acknowledges your assistance to a fellow prisoner during an incident in July of 2018 where he had attempted suicide in the industries area.  It goes on to say 'As a result of the quick response by you and three other prisoners in particular, the prisoner is well and has made a full recovery' and it continues 'Thank you and well done for your efforts'. 

14There is a letter from your former wife, Amanda Everett, which is Exhibit 4.  It seems that you now enjoy a good relationship with her, and she is happy to provide whatever assistance she can for your son, Jason. 

15Exhibit 5 is a letter from the recreation officer at the Metropolitan Remand Centre dated 2 March 2019 covering a number of further certificates of achievement in relation to rehabilitative programs within the prison system. 

16Exhibit 6 is a letter dated 3 April 2019 which evidences the fact that you had been a member of Alcoholics Anonymous for a while and had been a regular weekly attendee at meetings, had brought along fellow inmates to the meetings and were generally supportive of them as well as supportive of your own rehabilitation from alcohol abuse.

17Exhibit 7 is a number of further certificates of achievement showing your continuing application to rehabilitative measures.  These are dated in 2023.  Exhibit 8 is a pathology report showing that during 2018 and 2023, there were number of occasions upon which you provided samples of urine for the purposes of analysis which showed negative results for illicit drugs. 

18Exhibit 9 is a report dated 14 July 2023 from Daniela Kocic, psychologist.  Exhibit 10 is a neuropsychology report dated 8 December 2023 from Dr Kelly Sinclair, clinical neuropsychologist.  I will refer in more detail to the effect of that material as I go through the matters raised by your counsel in his written submissions.

19Your counsel submits that there are some important mitigatory matters in your case.  They include your background and upbringing which he submits enliven the principle of Bugmy v The Queen [2013] 249 CLR 571. That is a principle which deals with the likely effect of childhood deprivation and poverty and ill-treatment being a strong correlation with criminal conduct in later life, substance abuse at an early age and the likelihood of acquiring a criminal record from a young age of the kind which you have acquired. The prosecution did not dispute that the principles arising from that important High Court case are enlivened in your case.

20The details that are set out in the two reports of the psychologist and neuropsychologist persuade me that you did indeed have a significantly deprived background attended by physical abuse and sexual abuse and emotional deprivation to a point where you were driven to early resort to substance abuse and criminal activity. 

21Bugmy is an important principle which tends to reduce your moral culpability for your offending.  But it has to be balanced against the need for public protection in relation to offending of a violent nature.

22Unfortunately this is a common tale before this court.  Almost on a daily basis we see the correlation between the kind of childhood deprivation that you unfortunately suffered and criminal conduct.  Whilst the degree of deprivation and abuse may vary, that correlation is all too common.  In your case, I am satisfied that it does reduce your moral culpability for this offending, although, as I say, I need to balance that carefully against the need for public protection.

23The reports suggest that you are a person with some intelligence and ability. Although you have had concerns about the effect of head injuries in the past on memory and perhaps causing some underlying damage, there is little or no evidence of that to be found in the reports.  However, it is unsurprising that you were diagnosed with post-traumatic stress disorder and anxiety, ADHD and other conditions arising from your substance abuse.  All of those matters are relevant to sentence and I take them into account.

24What stands out in all of this material is that your record in recent years, at least up to this offending, has not been that bad.  It seems to me that factors including marriage break-up are important milestones in your life which has been caused or contributed to by the period you have had to spend in custody rather than caring for your wife and family.  Nevertheless, despite those setbacks, your application to rehabilitation has been extremely impressive.  Whilst we see certificates paraded in many pleas in mitigation, the nature and sustained application of your efforts to rehabilitation are to be commended. 

25I need to consider, amongst other things, the sentences imposed on your co-accused, Bayamis and Thomason.  They pleaded guilty and were dealt with in 2020 by His Honour Judge Lacava.  I have been provided with the sentencing reasons of His Honour in relation to those two co-offenders.  I note that in Bayamis' case, he was the ringleader, the organiser, and the recruiter of you and Thomason.  He received a total effective sentence of four years and six months' imprisonment with a non-parole period of three years.  Mr Thomason received a total effective sentence of four years' imprisonment with a non-parole period of two years and eight months.

26I note that each of them pleaded guilty to home invasion, rather than aggravated home invasion, on the basis that it was accepted by the prosecution that they were unable to demonstrate that either of them was aware that you had with you at knife at the time that you entered the premises.  It is true that I have to sentence you for the offence of aggravated home invasion and that you did use the knife to threaten Mr Matar.  Otherwise, it seems to me that there is not a lot to aggravate the offending beyond the offending of Messrs Bayamis and Thomason.  Mr Bayamis was undoubtedly the ringleader and the orchestrator of this offending and responsible for recruiting you to assist him in the crimes that were committed.

27Nevertheless, it is important that I do my best to ensure parity of sentence and I cannot give you any credit for the fact that you pleaded not guilty to the offences the subject of the indictment other than Charge 3 which involved recklessly causing injury and Charges 6 and 7 to which you pleaded guilty.  I have to sentence you on the basis of the jury's verdicts, as well as for the pleas of guilty to Charges 6 and 7. 

28Doing the best I can to give proper effect to sentencing principles of just punishment, denunciation, general deterrence, individual deterrence and the need to promote your rehabilitation, I am inclined to accede to your counsel's submission that I should ensure that you have a significant period when parole is available to you.

29I cannot guarantee that you will get parole at the time that I set for the completion of the non-parole period, but it seems to me to be well worthwhile giving you the opportunity of parole at a reasonably early stage.  I have to balance all relevant factors including the need for parity with the sentences of the other accused.  Doing the best I can to balance all of those factors, I am now ready to impose sentence upon you. 

30On Charge 1 of aggravated home invasion, you are convicted and sentenced to imprisonment for four years and three months.

31On Charge 2 of causing injury intentionally, you are convicted and sentenced to imprisonment for two years and nine months.

32On Charge 4 of extortion with threat to kill or inflict injury, you are convicted and sentenced to imprisonment for two years and nine months.

33On Charge 5 of theft, you are convicted and sentenced to imprisonment for
15 months.

34On Charge 3 of theft of the car keys to which you pleaded guilty, you are convicted and sentenced to imprisonment for three months.

35On Charge 7 of theft of a motor vehicle to which you also pleaded guilty, you are convicted and sentenced to imprisonment for 12 months.

36The sentence of four years and three months on Charge 1 is the base sentence and I order that 14 months of the sentence imposed on Charge 2, 14 months of the sentence imposed on Charge 4, three months of the sentence on Charge 5 and two months of the sentence on Charge 7 be served cumulatively upon each other and upon the sentence of four years and three months on Charge 1. 

37The total effective sentence is imprisonment for seven years.

38I order that you serve a period of four years and four months before being eligible for parole. 

39I declare 1,051 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed. 

40I need to make a s6AAA order in relation to Charges 6 and 7: but for your pleas of guilty on Charges 6 and 7, the total effective sentence would have been imprisonment for a total of seven years and three months with a non-parole period of four years and six months.

41Are there any other matters?

42MS CHAN:  Nothing arising, Your Honour.

43HIS HONOUR:  No.

44MR JACKSON:  Nothing further, Your Honour.

45HIS HONOUR:  Well, Mr Everett, I commend your efforts at rehabilitation.  I hope that you see the positive side of this sentencing exercise and that you are able to obtain parole and within a reasonable period of time and make good use of that period for your continued rehabilitation. 

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