Director of Public Prosecutions v Franja
[2018] VCC 1105
•20 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00429
Indictment No. H13206018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD FRANJA |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2018 | |
DATE OF SENTENCE: | 20 July 2018 | |
CASE MAY BE CITED AS: | DPP v Franja | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1105 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Criminal Law – Armed Robbery – Obtain property by deception – Commit indictable offence whilst on bail – Relatively low level example of armed robbery – Significant victim impact – 40 year old offender – Relatively early guilty plea – Relevant prior convictions – Good work history and social supports – No finding of remorse – Drug-induced psychosis – Verdins principles not engaged – Significant rehabilitation
Legislation Cited: Ss 75A, 81, 321M, 321P Crimes Act 1958 – S 30B Bail Act 1977 – S 145 Criminal Procedure Act 2009
Cases Cited:Barbaro v R (2012) 226 A Crim R 354 – R v Lim Unreported, Vic COA, 13 March 1997, Winneke P, Charles JA and Hedigan AJA – DPP v Chol [2016] VCC 299 – DPP v Grixti [2016] VCC 1743
Sentence: 3½ years’ imprisonment with a non-parole period of 2½ years’ imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S Lenthall | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr T Hancock | Ann Valos Criminal Law |
HIS HONOUR:
1 Edward Franja, you have pleaded guilty to an indictment containing one charge of armed robbery[1] and one charge of attempt to obtain property by deception.[2] You have also consented to have this Court deal with one transferred related summary offence,[3] namely commit indictable offence whilst on bail,[4] and have pleaded guilty to that charge.
[1] Contrary to s 75A(1) Crimes Act 1958
[2] Contrary to ss 321M and 81 Crimes Act 1958
[3] Pursuant to s 145 Criminal Procedure Act 2009
[4] Contrary to s 30B Bail Act 1977
2 The maximum penalty for armed robbery is 25 years’ imprisonment,[5] the maximum penalty for attempt to obtain property by deception is 5 years’ imprisonment[6] and the maximum penalty for commit indictable offence whilst on bail is 3 months’ imprisonment or 30 penalty units.[7]
[5] Pursuant to s 75A(2) Crimes Act 1958
[6] Pursuant to s 321P(1)(a) Crimes Act 1958
[7] Pursuant to s 30B Bail Act 1977. At the time of the offence a penalty unit was $158.57.
3 The prosecution has filed a summary of prosecution opening dated 8 June 2018,[8] which I have been told by your counsel I can treat as a statement of agreed facts.
[8] Exhibit P1.
The facts
4 On 9 November 2017 at 1:30 pm, the victim, Mr Mitchell Webster, then aged 22 years, was walking to work along Palmer Street towards Nicholson Street in Fitzroy. He noticed you on a nearby footpath. You were wearing a black hooded jumper and holding a tree branch which was approximately 50cm in length.
5 As the victim went to walk past you, you said to him ‘Hey, come over here’. He ignored you at first, but then replied ‘Like, what’s up?’ whereupon you approached him. You asked, ‘Have you got any money?’, whilst tapping the tree branch in your hand. Understandably, the victim felt threatened by your actions.
6 The victim told you that he did not have any money and took out his wallet to prove this to you. He told you, ‘All I’ve got is my wallet’. You replied, ‘That’ll do’ and took his Commonwealth Bank debit card from inside his wallet. You tapped the victim on the shoulder, telling him ‘good man’, and walked away with the debit card.
7 Your victim continued walking to work and sensibly cancelled his debit card as soon as he arrived there. He contacted Fitzroy police station to report the offence.
8 At 1:37 pm, you took the victim’s debit card with you to Freechoice Tobacconist in Brunswick Street, Fitzroy. You attempted to use the card to purchase a packet of cigarettes and a Don Tomas Classico cigar, for a total cost of $57.00. However, the transaction was declined and you left the store without those items.
9 The victim passed on the details of this transaction to Victoria Police, who subsequently attended the store and obtained CCTV footage of you attempting to make the purchase.
10 At the time of committing these offences, you were on bail for offences of recklessly causing injury, assault by kicking, two charges of aggravated assault and two charges of unlawful assault, which were alleged to have occurred on 30 October 2017. These matters have not been concluded. Since you will be sentenced by me for the related summary offence of committing an indictable offence while on bail, the breach of your bail is not to be treated as a circumstance of aggravation in relation to the charges on the indictment.
11 On 20 November 2017, 11 days after the offences took place, you were taken to the Royal Melbourne Hospital by police under the Mental Health Act 2014. On the following morning, the police informant spoke to you at the hospital.
12 You were arrested and taken to the Melbourne West police station where you were assessed by a forensic medical officer. You were deemed fit for interview, and you were interviewed. You exercised your right to make no comment regarding the allegations. The victim later identified you from a photo board.
13 You were charged and taken to the Melbourne Magistrates’ Court where you were remanded in custody. You have been in custody since that date. PSD is 242 days.
Victim impact statement
14 The victim, Mitchell Webster, prepared a victim impact statement dated 28 April 2018, which was tendered at the plea hearing.[9] It is clear your offending has had a significant detrimental effect on him. He has had counselling, feels unsafe in public places and fears being alone in his own home. He is hypervigilant, anxious and lacking in the confidence he once had. I take the impact of your crimes on the victim very much into account in sentencing you.
[9] Exhibit P2
Offence Seriousness
15 Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. I accept your counsel’s submission that yours is a relatively low-level example of the offence. The Crown did not argue against this characterisation of your offending. The offence was not planned but opportunistic. It was committed in daylight against a sole pedestrian going about his lawful activities. You were not disguised at the time, there was no actual physical violence threatened or perpetrated on the victim and the weapon you used was improvised and not as serious as many weapons used in the commission of this offence.
16 The offence of attempting to obtain property by deception is also a serious enough offence.
17 Accordingly, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you for these offences.
Personal circumstances
18 You were born in Serbia on 20 July 1978, and were 39 years old at the time of the offending. You turn 40 today. Your counsel described you living an unremarkable childhood. You had two sisters and one brother, being the second youngest. However, your relationship with your father was marred by family violence. This made you frightened of him, but you tried to behave so that he would be proud of you. Your father ran a jewellery business, and you left school when you were 14 years old to assist in the family business.
19 When you were aged between 10 and 15 years, the civil war taking place in Serbia escalated and, as a result, you were exposed to wartime incidents. Serbian children at school bullied you, and you tried to keep hidden the fact that your family was Catholic and not Serbian Orthodox. Your family eventually escaped as refugees to Croatia.
20 In 1997, your family immigrated to Australia. When you arrived in Australia, you could not speak English. You never had any formal education in the English language, but picked up English along the way. You can now read English and you have basic English writing skills.
21 You eventually became an Australian citizen.
22 Your father passed away in 2014, and your mother is currently in hospital as a result of a fall, and is showing the first stages of dementia. Your siblings continue to support you whilst in prison, but you do not want your mother, who believes you are working interstate, to worry.
23 Whilst in Croatia, you experimented with cannabis and alcohol. Additionally, you indulged in alcohol use after you had lost friends to suicide. You were introduced to heroin by your cousin, some two days after your arrival in Australia. You became addicted and eventually resorted to using heroin on a daily basis. You have also used methylamphetamine in an attempt to ‘find a balance’ in your mood.
24 You worked as a courier when you were younger. Prior to your relapse to cannabis use and psychosis, you were stable, working as a painter and had been for many years, from 2003. Your work consisted of painting commercial buildings and offices. During 2017, you were also volunteering at a charity, cooking food for the homeless. You enjoyed doing this and found your confidence was increasing. You were also attending church once a week and had organised a charity dinner just two months before the offending. This was prior to your mental health deteriorating, whereupon you ceased employment.
25 You have had two significant romantic relationships in your life. In your early 20’s, you were in a relationship for several years, but apparently you ‘messed it up with drugs’. From your late 20’s to early 30’s, you were in another relationship for seven years. You and your then partner lived in Italy for four years from 2006 to 2010, and also spent some time in Croatia during that period. During that time, you used cannabis and drank alcohol to excess. You worked in a jewellery business, living on the Dalmatian coast with your then partner. When you and your then partner came back to Australia, you relapsed back into heroin use and the relationship ended as a result. You have not been in a relationship since 2013 and you have no children.
26 You were sharing a house with a friend before you suffered from drug induced psychosis. You then believed that your house mate was out to get you and you moved out, becoming homeless for several months prior to being remanded in custody for the present offences. You hope to live with your sister upon your release from custody.
27 From 2011 to 2015, you engaged with a psychologist on a regular basis. He addressed issues from childhood that included your memories of your father’s abuse. You found that therapy helpful, however, you continued to use cannabis and heroin throughout this period. You were placed on Suboxone pharmacotherapy for a period of time in 2013 to 2014. You also tried Methadone for a period of time, but would use heroin in addition to this. You also completed a ‘rapid detox’ with Naltrexone in a private hospital. However, whilst on Naltrexone, you were smoking cannabis and using ice. As noted earlier, when your father passed away in late 2014, you relapsed back into heroin use.
28 You attended Odyssey house rehabilitation facility in 2015 to 2016 for fifteen months. After you left the rehabilitation centre, you attended another psychologist for a few sessions, however you then ceased this when you relapsed back into heroin use. You had another period of abstinence from heroin during 2017, but relapsed into cannabis use in August 2017 and suffered from drug induced psychosis.
29 Whilst in custody you have worked as a kitchen billet and tried to keep busy. You have completed several psycho-educational courses, including ‘cannabis and me’, ‘ice and me’ and ‘healthy balances’. I was provided with a number of certificates regarding these and other programs and courses you have undertaken whilst in custody and also two negative urine drug screens.[10] This bodes well for your future prospects of rehabilitation. However, you are presently in a controlled environment, and given your past history of relapsing into illicit drug use, I can only take a cautious view of your ultimate prospects of rehabilitation.
Substance Abuse and Mental Health
[10]Exhibit D4
30 As noted earlier, you have used heroin for many years and have made several unsuccessful attempts to abstain from this substance by counselling, attending rehabilitation and engaging in pharmacotherapy substitutions. You used methylamphetamine (speed and then ice) in addition to heroin and tried to find ‘a balance’ in your mood by using these substances.
31 From January 2017, you abstained from illicit substances. You had been in custody for a short while and were determined to stop using heroin and cannabis. You abstained until August 2017, however, you relapsed and had a joint of cannabis at this time. You then suffered from drug-induced psychosis and continued smoking cannabis in order to try to reduce your anxiety, however, you became more psychotic.
32 You were psychotic for about 10 days when first taken into custody, but this has resolved. Ms Maynard opined that your symptoms of anxiety and depression, which you suffered upon going into custody ‘have improved since being in custody but were reported to be worse when he was in the community’.
33 Applying DSM-V criteria, Ms Maynard diagnosed the following conditions: Post Traumatic Stress Disorder, Major Depressive Disorder, Drug Induced Brief Psychotic Episode (with manic features), Substance Dependence (opioids and cannabis) and Substance Abuse (methamphetamines and alcohol). However, your counsel frankly and fairly conceded that no Verdins principles are engaged in your case.
34 Ms Maynard concludes:
It appears that Mr Franja had been doing well for the first time in many years, staying abstinent from drugs and alcohol for over six months. It is the writer’s opinion that if he continues on this positive pathway when he is released from custody, without relapsing into substance use, his risk of reoffending will significantly decrease.
35 Ms Maynard recommends that you undergo counselling which focuses on your psychological symptoms, to assist you with managing dysregulated emotions, impulsivity and trauma related symptoms. That you have cognitive behavioural therapy to address your symptoms of depression and anxiety, to identify and challenge negative thoughts, cognitive restructuring, mindfulness and relaxation strategies. Trauma focused therapy to assist you specifically with your PTSD symptoms, understanding how your body, emotions and thinking patterns reflect your past trauma responses, of ‘fight, flight and freeze’. Psycho-educational approaches to address your risk of relapse to drug use and consequent drug induced psychosis and motivational interviewing designed to assist you to move forwards in your motivation for long term change, to understand your reasons for your addiction and how to develop more adaptive ways of coping. Hopefully, programs available to you in custody and once you are released on parole, can be provided to further your psychological recovery and address your risk factors.
Prior Criminal History
36 You have a number of relevant prior convictions arising out of one appearance in the County Court and three appearances in the Magistrates’ Court between October 1999 and October 2017. In fact, you were placed on a community corrections order at the Heidelberg Magistrates’ Court for a number of dishonesty, drug related, weapons and driving offences and breaches of the Bail Act only 29 days before committing the present offences.
37 This heightens the need for me to give significant weight to specific deterrence and protection of the community and adversely affects my assessment of your prospects of rehabilitation.
Mitigating circumstances
38 I accept that yours are relatively early pleas of guilty, although not entered at the earliest opportunity. This matter resolved at a directions hearing in the County Court on 26 April 2018. You did not conduct a contested committal hearing in the Magistrates’ Court, but rather proceeded by way of straight hand-up brief at a committal mention, where you entered pleas of not guilty. The matter subsequently resolved before being listed for trial in this Court.
39 Your relatively early pleas of guilty have utilitarian benefit and also indicate an acceptance of responsibility on you part and a willingness to facilitate the course of justice. However, there is insufficient evidence before me to make a finding in your favour that there is true contrition and remorse in your case.[11]
[11]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA)
40 This is your first time in prison and I accept that your time in custody has been challenging, as you suffer from post-traumatic stress disorder, depression and anxiety, which makes custody more burdensome upon you.
Application of sentencing principles
41 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances.
42 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
43 General deterrence is an important sentencing consideration, particularly in sentencing you for the offence of armed robbery. Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history and the risk of your committing further offences if you relapse into the abuse of illicit drugs after your release from custody.
44 In light of your past history of offending in the context of drug addiction, I can only take a cautious approach in assessing your prospects of rehabilitation. Nonetheless, Mr Franja, you are a relatively young man with much of your life ahead of you. You have shown a capacity to remain drug free in the past, and you appear to have remained drug free while in custody and you have engaged well in a number of rehabilitative programs and educational courses. It will be up to you whether, when you are no longer in a controlled environment, you take the opportunity while on parole to turn your life around and become a law abiding citizen. Otherwise, I fear your future will be one of longer and longer periods of incarceration.
45 I have had regard to current sentencing practices in relation to the offences before me in light of the recent decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[12] The prosecutor provided me with a schedule of what were said to be reasonably comparable cases drawn from the Judicial College of Victoria, Victorian Sentencing Manual, ‘32.15.2.6 - VCC summaries - armed robbery’.[13] Your counsel provided me with a copy of the Victorian Sentencing Advisory Council, SACStat Offence Summary, ‘Armed Robbery’[14] and two reasons for sentence by judges of this court[15] and the decision of the Victorian Court of Appeal in R v Lim.[16]
[12](2017) 91 ALJR 1063
[13]Exhibit P3
[14]Exhibit D6
[15] DPP v Chol [2016] VCC 299 (Judge M P Bourke) and DPP v Grixti [2016] VCC 1743 (Judge Lacava)
[16]Unreported, Victorian Court of Appeal, 13 March 1997, Winneke P, Charles JA and Hedigan AJA (BC9700832)
46 I have considered all this material. It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct which can constitute the offence of armed robbery and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, I accept that your offending falls at the lower end of the scale of seriousness and you can call in aid a number of mitigating circumstances. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
47 Ultimately, I am of the opinion that the only appropriate sentence necessary to achieve the purposes for which this sentence is imposed is a sentence of imprisonment with a non-parole period. Your counsel accepted this was so. I have considered the overlapping nature of the offences and the need to avoid the imposition of double punishment in determining my orders for cumulation of sentences between offences. I have also had regard to the principle of totality.
48 I have decided to give you a somewhat longer period of parole supervision, than I might otherwise have done, to further your prosects of rehabilitation and your integration back into society.
Stand up Mr Franja
On charge 1 (armed robbery) you are convicted and sentenced to 27 months’ imprisonment.
On charge 2 (attempt to obtain property by deception) you are convicted and sentenced to 3 months’ imprisonment.
On the related summary offence of commit an indictable offence whilst on bail you are convicted and sentenced to 1 month’s imprisonment.
I order 1 month of the sentence imposed on charge 2 and 14 days of the sentence imposed on the related summary charge be served cumulatively on the sentence imposed on charge 1. Making a total effective sentence of imprisonment for 28 months and 14 days. I order that you serve a minimum term of 16 months’ imprisonment before becoming eligible for parole.
I declare the period of 241 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 3½ years’ imprisonment with a non-parole period of 2½ years’ imprisonment.
Remove the prisoner
0
3
0