Director of Public Prosecutions v Fezollari
[2019] VCC 962
•10 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00698
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DRITAN TONY FEZOLLARI |
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| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 April 2019 |
| DATE OF SENTENCE: | 10 May 2019 |
| CASE MAY BE CITED AS: | DPP v Fezollari |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 962 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Aggravated burglary; theft; prohibited person in possession of a firearm;
Legislation Cited: Sentencing Act 1991 (Vic); Firearms Act 1996 (Vic).
Cases Cited:DPP vMeyers (2014) 44 VR 486; Maslen v The Queen [2018] VSCA 90; Perri v The Queen [2016] VSCA 89; Sovolos v The Queen [2018] VSCA 149; Spitteri v The Queen [2018] VSCA 254.
Sentence:Total Effective Sentence – 3 years 9 months imprisonment. Non-parole period 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Sharp | Office of Public Prosecutions |
| For the Accused | Mr C Terry | Stary Norton Halphen |
HIS HONOUR:
1.Dritan Fezollari, you have pleaded guilty to one charge of aggravated burglary, two charges of theft and one charge of being a prohibited person in possession of a firearm.
2.Mr Sharp, who appeared on behalf of the Director of Public Prosecutions, tendered a Summary of Prosecution Opening on the plea which sets out the details of your offending. Briefly summarised that offending involved the following:
3.At approximately 1:15 AM on Monday, 27 September 2017 you drove your silver Mercedes coupe registration number ANN415, to Minvi Terrace in Cairnlea. You were followed to that location by an unidentified person who drove a white van. Both vehicles were parked on Minvi Terrace. You and the driver of the van got out of the vehicles and walked towards Breadalbane Avenue Cairnlea, a distance of approximately 200 m.
4.At the time you did so you were wearing a hooded jumper, a balaclava, gloves and white shoes. You were also carrying a 9 mm handgun and a crowbar. After climbing over the back fence you used the crowbar to force entry through the backdoor of the house at seven Breadalbane Avenue. The second person, the driver of the white van, remained on the footpath outside the property.
5.Two people ordinarily resided at that house, Cheryl Satala and Nicholas Nicolaou. At the time Ms Satala was asleep in her bedroom. Mr Nicolaou was not present. Ms Satala was woken by the sounds you made when you forced entry. She became scared and sent a number of text messages to Mr Nicolaou informing him that someone had broken into the house and that he should call the police. Mr Nicolaou immediately did so and then drove to 7 Breadalbane Avenue. In the interim Ms Satala hid in the wardrobe in her bedroom.
6.Sometime after entering the house you entered Ms Satala’s bedroom and found her in the wardrobe. You were still carrying the crowbar and the handgun. She later gave a description to police of the person she saw. He was Caucasian tall, may be 6 foot to 6’2”, lanky or skinny, gaunt and wrinkly, blue/grey eyes and wearing a black hoodie, black balaclava and black knitted gloves.
7.When you confronted Ms Satala you saw that she had her mobile phone with her you told her to hand it over. She complied and you then said “it’s got nothing to do with you” and left the bedroom and continued to search throughout the house. The taking of the phone, constitutes charge two - theft.
8.Elsewhere in the house you located Australian currency to the value of $6000, a variety of foreign currency and an Australian passport belonging to Mr Nicolaou. The taking of those items constitutes charge three - theft.
9.Shortly afterwards, Mr Nicolaou arrived at the property just as police were also arriving. Mr Nicolaou yelled out and when you heard him you fled through the rear of the house, climbed a number of fences and ran along Minvi Terrace avoiding police. In a wheelie bin located outside 41 Minvi Terrace you discarded the loaded handgun with its magazine and ammunition, the hooded jumper, the gloves, the balaclava, a torch and lanyard and the currency and passport you had taken from the house. At that time you were able to avoid apprehension. At about 5.30 that morning you returned to Minvi Terrace and collected your vehicle.
10.As part of their investigation police obtained CCTV footage from a number of houses which depicted you fleeing the scene. They also located the items you had placed in the wheelie bin and subsequent DNA testing of the gloves matched your DNA.
11.On 3 November 2017 a search warrant was executed at your then address at Unit 10, 108 Mitchell Street, Brunswick. You were arrested and when interviewed by police, you denied any involvement in this incident and gave a series of implausible explanations. As to the presence of your car in the area at the time you said that it had overheated and you had parked your car in at that location in order to go off and find a service station.
12.You denied you were the person depicted on the CCTV footage. You also told police that you had found the gun, the gloves and the jumper, and that you had tried the gloves and the jumper on but then threw all of those items into a bin.
13.You have remained in custody in respect of this matter since your arrest.
14.On 29 June 2011 you were sentenced in this court to a total effective sentence of four years and three months with a non-parole period of two years and nine months for drug offences including trafficking in a commercial quantity of MDMA. That sentence expired 28 September 2016. Because only one year or so had expired since the time that you had completed a sentence of less than five years for an indictable offence, when you committed these offences, you were deemed by the operation of section 3 of the F irearms Act 1996 (Vic) to be a person prohibited from possessing a firearm. Your possession of the handgun on this day in those circumstances constitutes charge four - prohibited person in possession of a firearm.
15.No victim impact statements were provided on the plea.
Procedural Chronology
16.The chronology of this proceeding is as follows:
03/11/2017
Arrested and charged;
09/11/2017
Filing hearing;
29/01/2018
Committal case conference;
08/02/2018
Application for bail – bail refused;
04/04/2018
Committal hearing - committed to stand trial;
05/04/2018
Initial directions hearing;
20/04/2018
Further initial directions hearing;
27/09/2018
Application for bail – part heard and then abandoned;
25/01/2019
Final Directions hearing;
12/03/2019
Trial (Reserve) – matter resolved – Accused arraigned and entered a plea of guilty to the 4 charges as on the current indictment.
17.That chronology demonstrates that your plea of guilty was entered at a late stage in the proceeding. Even so, I nonetheless accept that plea possesses utilitarian value which will reduce the sentence that would otherwise have been imposed.
Personal History
18.As to your personal history, you were born on 22 June 1974 and are now 44 years of age. You were 43 years of at the time of committing this offence.
19.You have a significant criminal history which commences when you were 17 years of age and includes a number of reasonably substantial terms of imprisonment. In the main your offending has comprised dishonesty, driving and drug offences. I will return to some specific aspects of this history shortly.
20.You were born in Albania but came to this country at the age of two with your family. Your parents had escaped that country’s communist regime and came to Australia as refugees. Your family settled in the northern suburbs and you attended a number of schools including Northcote High School and Preston Tech. Your schooling was difficult. You encountered a good deal of hostility, even racism, because of your background. In response you appear to have become disruptive and performed poorly academically. Your father worked in a number of different jobs at one time, to support the family. Your parents were distant and you say you lacked guidance as a child.
21.You left school at around the end of year 10 and worked in a number of casual positions including working in a supermarket and as a delivery driver. Unfortunately drug abuse including cannabis, heroin, meth-ampethamine and particularly cocaine abuse undermined your efforts to maintain legitimate employment.
22.Your counsel, Mr Terry, explained that as you grew up you fell in with a number of young people who came from similar difficult backgrounds where drug and dishonesty offending was the norm. It was submitted that offences of violence did not figure prominently in your history save for two particular episodes of offending which took place quite some time ago.
23.The first related to 2 charges of armed robbery on a Tattersalls shop for which you were dealt with in this court in November 1999 and sentenced to a total effective sentence of three years with a non-parole period of four months.
24.The second episode related to charges of reckless conduct endangering life and being a prohibited person in possession of a firearm that was dealt with in this court by his Honour Judge Nixon in September 2005. That offending involved the discharge of a firearm in a public place. You were then sentenced to a total effective sentence of four years and six months with a non-parole period of two years. Your subsequent offending related to drug trafficking, the last matter being dealt with in June 2011.
25.Since 2014 you have worked in the construction industry. Significantly, in my view, you have remarried and it is evident that your wife remains supportive of you and visits you regularly.
26.It seems you complied with your parole obligations over a period of 18 months after your release in 2014. You told your counsel you were able to remain abstinent from drugs for a two or so year period. Your efforts to keep on the right track were however, derailed when friends offered some drugs to you. From there your abuse quickly escalated, creating the setting within which you committed this offence.
Defence Submissions
27.Mr Terry recognised that the only appropriate sentence that might be imposed here is one of imprisonment. He submitted, however, that your offending should be characterised as falling within the mid-range of seriousness for aggravated burglary. He argued by reference to a number of comparative authorities that your offending, taken together with your particular subjective circumstances justify what should be regarded as a moderate sentence.
28.He referred to the decision of our Court of Appeal in DPP vMeyers (2014) 44 VR 486, as to the sorts of features of the offending that is ordinarily relevant in determining the objective seriousness of this offence. He argued that there were two particular features of this offending that tended to a less serious characterisation. They were that first, you did not know or expect that anyone would be present in the premises and second, the intent alleged by the Crown was to steal, not to assault.
29.Ms Satala told police that when you happened upon her in her bedroom she said “it looked like he was genuinely shocked” and whilst you took her phone, you did not otherwise assault her. Mr Terry put, on your instructions, that you entered with the intention to steal drugs you believed had been hidden in the house
30.Counsel referred to four further authorities,[1] which he argued had some utility for the purposes of comparison but were all objectively more serious. The sentences imposed in each of those cases, he submitted, assisted in locating an appropriate sentence for an offence of mid-range seriousness.
[1] Maslen v The Queen [2018] VSCA 90, Perri v The Queen [2016] VSCA 89, Sovolos v The Queen [2018] VSCA 149 and Spitteri v The Queen [2018] VSCA 254.
Prosecution Submissions
31.The prosecutor, Mr Sharp, agreed that imprisonment was the only sentencing option available, however, he submitted that time served would not constitute a sufficient and appropriate sentence in the circumstances of this case.
32.He pointed to a number of factors that supported that view. You had gone to this house, with an accomplice, disguised, with a loaded firearm in the middle of the night. Whether or not you expected anyone to be there, the fact is there was, and she was understandably terrified by what you did. However, Mr Sharp, as I understood him, did acknowledge that the offending likely fell into that mid-range category of seriousness of this offence.
Analysis
33.As to my analysis of these submissions I should make it plain at the outset that you will be sentenced on the basis that this type of offending is prevalent and is the source of a great deal of community disquiet. It undermines the sense of security and safety everyone is entitled to feel in their own home. What follows from that is that when offenders like you are caught, they must be punished with a view to deterring others who might be inclined to commit offences like this.
34.Moreover, this is not the first time you have committed serious offences involving firearms. That means that the sentence I impose here should also seek to personally deter you from engaging in this sort of offending in the future.
35.The use of a hand gun and the sophisticated steps taken to avoid detection suggest a degree of professionalism in the manner this offence was carried out, so as to aggravate the penalty that must be imposed. Although I am not persuaded by the contention that you did not know or expect anyone to be home should mitigate your penalty, both parties, however, accepted, and I will proceed on the basis, that the objective seriousness of your offending falls within the middle range for the offence of aggravated burglary. I also accept that there should be a substantial measure of concurrency given the inter-relationship between charge 1 and charges 2, 3 and 4.
36.In all of the circumstances I accept Mr Sharp’s submission that time served would not adequately address the various sentencing purposes to which I must have regard.
37.That said, your plea of guilty, which although late is nonetheless significant, the support of your wife and your performance on parole after 2014 suggest some basis for optimism. During your time in custody, which is now over 18 months, you appear to have focused on preparing for a fresh start with the intention of avoiding reoffending. It seems to me that the sentence that must now be imposed should also try to give effect to that intention to the extent that is possible.
38.Taking into account all relevant circumstances I sentence you as follows:
39.On the first charge of aggravated burglary you will be convicted and sentenced to 3 years and 3 months imprisonment.
40.On the second charge of theft you will be convicted and sentenced 6 months imprisonment.
41.On the third charge of theft you will be convicted and sentenced to 6 months imprisonment.
42.On the fourth charge of being a prohibited person in possession of a firearm you will be convicted and sentenced to a term of imprisonment of 12 months.
43.I will order that 1 month of the sentence imposed on charge 2, 1 month of the sentence imposed on charge 3 and 4 months of the sentence imposed on charge 4 is to be served cumulatively upon the sentence imposed on charge 1.
44.That makes a total effective sentence of 3 years 9 months and I will fix a non-parole period of 2 years.
45.I will declare pursuant to s18 of the Sentencing Act that you have served 552 days in custody and I will cause that declaration to be noted in the records of the Court.
46.I will further declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 5 years 6 months imprisonment with a non-parole period of 3 years and 6 months. I will also cause that declaration to be noted in the records of the Court.
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