Director of Public Prosecutions v Gala
[2012] VCC 673
•22 May 2012
TO
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MILAN GALA |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 May 2012 | |
CASE MAY BE CITED AS: | DPP v. Gala | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 673 | |
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Catchwords: Guilty pleas to charges of attempted armed robbery & recklessly cause serious injury - delay - drug addict making serious effort to rehabilitate - undertaking to give evidence against co-offender
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Linzner | |
| For the Accused | Ms J. Swiney |
HIS HONOUR:
1 Milan Gala, on 2 May of this year you pleaded guilty to two charges on Indictment B12854820. Charge 1 is a charge of recklessly causing serious injury, for which the maximum penalty is 15 years' imprisonment. Charge 2 is a charge of attempted armed robbery, for which the maximum penalty is 20 years' imprisonment.
2 You can see from the maximum penalties prescribed by the Parliament that it rightly regards this kind of offending you have engaged in, very seriously. In passing sentence on you for your offending I have had regard to the maximum penalty for each offence, as I must. Both charges arise out of your offending which occurred in the early morning on 27 June 2010. The full circumstances are as summarised in the summary of prosecution opening, which was tendered in evidence and read to the court by the prosecutor, Ms Zammit. Your counsel accepted the summary accurately summarised your offending and formed a proper basis of facts upon which I can proceed to pass sentence upon you. I do not need to refer to the whole of your offending here, except in very summary form.
3 You are, and have been for a long period of time, a drug addict. You have many prior convictions from 18 court appearances dating back to 1997. You admitted a record of your prior convictions, which include a prior conviction for armed robbery in this court, for which you received an Intensive Corrections Order which you later breached, and you served the balance of the unexpired term of that order of 352 days. You also have prior convictions for robbery. Your other prior convictions, as one would expect of a long-term drug addict, are mostly for dishonesty type offending. Your first offending was for robbery, and assault with intent to rob, and intentionally or recklessly causing injury. That was in 1997.
4 On the day of the offending, you and another friend, Paul Caraffa, visited one Violeta Andonovski, whom you then met for the first time. You had been on what is described as a six day session of taking the drug, ice, and were very affected as a result. Andonovski is also a drug user. You discussed with her ways of obtaining heroin and hatched a plan to obtain some of that drug from your long-term heroin supplier, one George Fadel. You made contact with Fadel and told him you had money to buy heroin from him. A meeting was arranged.
5 Andonovski produced a .22 rifle at her house and said she would take it to the meeting. She fired the gun in her house and later as both of you were driving to the meeting with Fadel she again discharged it. You and Andonovski decided to threaten Fadel with the gun if he would not give you the heroin on credit.
6 You and Andonovski travelled by car to the Housing Commission flats in Elizabeth Street in Richmond. On arrival you contacted Fadel and arranged a meeting so you could be supplied with the heroin. Both you and Andonovski were captured on CCTV footage outside the Elizabeth Street Housing Commission flats, awaiting the arrival of Fadel. I have viewed that footage. Andonovski was disguised wearing a hooded top and the sawn-off rifle which she was carrying was concealed down her pants. Fadel eventually arrived and showed you the heroin, which you asked him to supply on credit. He refused. You tried to take the heroin from him and a struggle ensued. Fadel produced a knife. Andonovski then intervened and shot Fadel in the upper right leg. She also made other attempts to shoot him, but the rifle did not fire. Andonovski then hit Fadel in the head with the butt of the gun. You and Andonovski both decamped from the scene, later meeting where Andonovski warned you about revealing details about what had occurred.
7 Fadel sustained a gunshot wound to the left thigh and a lacerated scalp. You did not succeed in obtaining the heroin, hence you were charged with attempted armed robbery.
8 The prosecution case proceeds against you on the basis that you acted in concert with Andonovski, in the result that you were criminally liable for her actions as a principal.
9 A search warrant was executed at your premises on 21 July 2010, about a month after the offending. This was after the police had obtained closed circuit television footage of you and Andonovski in the act of offending. You were formally interviewed and made a no comment record of interview, but you did tell the police you met up with George, a person who you knew, in Richmond on the morning of the offending. You were not charged at that time.
10 Two weeks later the police raided an address in Delahey, where the sawn-off rifle used in the attempted robbery was located.
11 On 13 October 2011, some 16 months after your offending, you were arrested. A second interview was conducted. At first you made a no comment record of interview, but soon after you made a statement detailing your offending. A second statement clarifying your offending was made on 11 April 2012. In your statements you say that you did not think Andonovski would use the gun, and you have expressed sympathy for Fadel, whom you regarded as a friend.
12 Andonovski has also been charged. She has pleaded not guilty, and you gave an undertaking before me that you will give evidence against her at her trial. The closed circuit television footage is not clear and neither you or Andonovski can be properly identified from it. Your evidence is vital in the case against her, to identify her as the person who is seen on the closed circuit television footage as firing the shot that wounded Fadel.
13 You were bailed on 28 October 2011. As at the time of the plea there were 16 days agreed pre-sentence detention. There has been no evidence led by the prosecution that explains the delay in charging you and bringing you to justice. You indicated your agreement to plead guilty to the charges at the second committal mention on 18 January 2012, less than three months after having been charged.
14 In passing sentence upon you I have taken into account the fact you have pleaded guilty to the charges and the time that you indicated that you would do so. I treat you as having pleaded guilty at the earliest opportunity. In my opinion you are entitled to a reduction in the sentence that you might otherwise have received, but for your pleas of guilty. You have saved the community the time and cost of a trial and you have saved your victim having to give evidence against you.
15 In passing sentence I have also taken into account your cooperation with the police and the fact you have expressed remorse for your offending when interviewed and have subsequently undertaken before me to give evidence, if called upon, against Andonovski at her trial. For that you are entitled to a further reduction in the sentence which you might otherwise have expected, and this is also reflected in the sentences that I will shortly pass.
16 Also, in passing sentence on you, I have taken into account the delay in prosecuting you for these offences. They have been hanging over your head now for some time and you knew that the police were interested in you as an offender from the time you identified yourself as having visited Fadel. That was on 21 July 2010.
17 Importantly, in the meantime, you have taken time to re-order your life. You took steps in the right direction on your own account and before you were interviewed a second time, or even charged with any offence. Because of the delay, which is unexplained but is clearly not of your making, I am of the opinion you are entitled to a further reduction in sentence. There was no victim impact statement here relied upon by the prosecution.
18 These were serious examples of what are in any circumstances serious offences. The attempted armed robbery here was particularly serious, given it occurred in some aggravating circumstances. The robbery was planned in the hours leading up to it. You and Andonovski planned to take a loaded gun. You knew that it could be fired. Andonovski was disguised, and the rifle which was sawn-off was concealed upon her. The gun was in fact used by her to wound your victim. You had seen Andonovski use the gun on the way to the meeting. The offending occurred in a very public place, outside the entrance to the Richmond Housing Commission flats. Further, the offending occurred whilst you were on bail for other offences.
19 I was provided with a helpful written outline of submissions by your counsel, Ms Swiney. I borrow from it to set out matters relating to your background.
20 You emigrated to Australia with your family from Prague in the Czech Republic, when aged seven. You lived with your family in Oakleigh until the age of 23. You went to school in Oakleigh. When you arrived in Australia you did not speak any English. You went straight into school, and with the help of a Teachers Aide learnt English and progressed through the year levels.
21 You were relatively successful at school and played soccer and completed Year 10, before commencing a cabinet making apprenticeship. Unfortunately, that company went into receivership or liquidation and you could not continue with the apprenticeship.
22 You undertook on-the-job training as a tiler with your father for some two years, and you have worked on and off with your father ever since. You started using cannabis at the age of 15 to 19, then started smoking heroin at 19, eventually using intravenously up to four caps per day, until prescribed a Naltrexone implant at age 23.
23 From there, use of ice was regular until late 2010, when you abandoned the use of illicit drugs and sought assistance from First Step at St Vincent's Hospital.
24 Up until the time when you were remanded on these charges by me, you were living at home with your parents in Altona Meadows, and you have good support from your family, including your sister, a matter that I will shortly turn to.
25 Your sister, Monica Sharp, gave what I regard as impressive evidence on your behalf. She is a married woman with two young children, employed as the National Manager of IFC Global Logistics. She told me how you lapsed into drug use as a teenager, and of your attempts to rid yourself of addiction. She described you as being out of control around 2007. This resulted in your family refusing to have anything to do with you.
26 However, over the last 20 months to two years she has noticed a change. You have sought help from the First Step Program at St Vincent's Hospital and you have changed positively for the better. Because your sister has two children, she and your parents said that they would not have you back in their homes unless you comply with two conditions. You were to remain drug free and you were not to associate with your past associates who had been drug users. She told me, and I accept, that you have complied with those conditions over at least the last 20 months.
27 Up until the time when I remanded you, you were back living with your parents and you visit your sister and family on a daily basis. She told me you have your evening meal with her and her family every night. She told me you have remained drug free now for more than 20 months. You perform voluntary work and you work out in a gym.
28 I also received evidence from Bryan Ambrosius, who gave viva voce evidence before me, as well as providing the report which I admitted into evidence. Mr Ambrosius is a social worker who runs a program called First Step, which is designed to assist long-term drug addicts and homeless persons who cannot obtain employment because of that. He is also employed at the St Vincent's Hospital Department of Addiction. The First Step Program is sponsored by Toll Holdings. Persons such as yourself who complete the First Step, qualify for the Second Step, which is employment within the Toll Group. Mr Ambrosius is an impressive witness.
29 I admitted into evidence as Exhibit 3 a written report from Mr Ambrosius dated 30 April of this year. That report attaches to it the results of a urine analysis showing that you have remained drug free for 20 months.
30 In the report, under the heading, "Observations, diagnosis and treatment", Mr Ambrosius says as follows:
"Mr Gala proactively and independently sought my support. He had heard of the Second Step Employment Service and came to the First Step Clinic to see if he would be eligible for the program. He is eligible as he meets the primary guidelines which are that he needs to be focused on being abstinent and remaining abstinent from all drug taking, willing to engage in intensive treatment and have the barrier of a criminal record in regard to finding work difficult as a result of his criminal record. Mr Gala has regular urine screens to prove he is abstinent from drug taking. All of his urine screens have been negative to all illicit drugs and he has given me absolutely no reason to doubt his abstinence.
Mr Gala reports an extensive history of drug taking, where he states he has struggled with addiction for 15 years period. Initially he had a heroin addiction where he used daily for five years before changing his drug of choice to ice. Again he used daily. At the age of 28 he first accessed methadone, but was still using ice and heroin, and was not stable. Two years ago he started to make significant changes. Firstly, he stabilised on the set dose of methadone, 95 milligrams. He stopped taking ice and was working on reducing his methadone under the care of Dr Sherman. He reduced his dose by 10 milligrams weekly. He got down to 35 milligrams of methadone. He started to reduce by five milligrams a week in August 2010. He finally ceased taking methadone.
Mr Gala reports he has not used any illicit drugs at all for over 20 months. Mr Gala has attended regularly for counselling and he has been very willing to comply and engage in all respects of treatment. He engaged very well in treatment and attended all of the schedule appointments and has been honest and appropriate in all of our sessions. We have asked him to produce regular urine drug screens to demonstrate he is abstinent from all drug taking. Thus far, he has 20 urine tests, all of which have come back negative to all drugs, which demonstrate his commitment to focus on abstinence.
"Relapse prevention counselling was the primary focus on 10 of our sessions where we covered the topics of healthy friendships and relationship development with drug free people, strategies of extricating himself from old drug taking friendship networks, and ways of communicating his plans of living drug free with old associates.
Discussion took place focused on strategies to make restitution for past bad behaviours where he caused problems within his family unit, and with healthy friends. Mr Gala now reports he has rebuilt his relationships with his family and now lives with his parents. He does not associate with any of his old drug taking friends and he spends the majority of his time with his family. He is particularly fond of his sister's children and has daily contact with them. Mr Gala is also, in opinion, suffering an anxiety disorder which we have been also focused on. Initially we chose not to explore medications to assist him, and we instead focused on counselling and self-management strategies of relaxation techniques, recognition of the symptoms, and using mindfulness techniques to cope. This seemed to work initially, but as this court case drew closer his symptoms were getting worse, and I referred him to Dr Bonomo on 1 March 2012, who has prescribed Zeldox for his anxiety. Dr Bonomo has seen him on six occasions. The primary cause of his anxiety, in my opinion, is the thought of gaol. Despite his stress, he has been able to use his newly developed coping skills and remain abstinent. Addiction is a chronic relapsing condition and Mr Gala has succeeded to obtain 20 months of abstinence whilst working hard to consolidate the things that make abstinence a long-term option, developing work readiness and seeking out the Second Step Employment Program to assist him re-engage in work, re-establishing his family relationships, taking the responsibility of being a good uncle, eliminating drug taking friendships and taking seriously his treatment and engaging well in the counselling process."
31 Under the heading of "Prospects for Rehabilitation", Mr Ambrosias goes on to say this:
"I believe Mr Gala has achieved abstinence from his drug taking past. His prognosis for the future is very good, as the Second Step Employment Program has accepted him as a client and we plan to offer him a job if he is able to remain out of gaol post this court case. He has just completed the Certificate 3 Transport and Logistics Course, at a private registered training organisation in Laverton North, as part of assisting him with work readiness to keep him focused and to prepare him for the sort of role he will be placed in at Toll.
He has a healthy and functional family who are very supportive of him. He has well developed insights into his historical reasons for drug use, and I believe he has the appropriate insights into his emotional self, and new skills in managing stress to maintain a drug free lifestyle.
Throughout the process of counselling Mr Gala has expressed significant remorse for his involvement in this crime. He is currently focused on eliminating his issues with addiction and rebuilding a healthy life. Mr Gala has made significant gains and is functioning so well at present, I believe a gaol sentence at this point in his recovery would be detrimental. If the court does impose a gaol sentence, then he will still remain eligible for the Second Step Program and we will work with him upon release."
32 Save that I propose to impose a term of imprisonment, and do not accept the plea within Mr Ambrosius' report that a term of imprisonment not be imposed here, I otherwise act upon the report of Mr Ambrosius and accept it and the evidence that he gave before me.
33 I also admitted into evidence references, as Exhibits 4 and 5, showing various courses you have undertaken to improve your job prospects.
34 I emphasise these efforts at reform have come from you alone. They were not prompted by the fact of you being first charged. You commenced an effort to turn your life around well before the police charged you. I accept that this offending and the fact that your friend Fadel was shot in the process was the event which in your mind triggered the signal that enough was enough.
35 Your efforts to rehabilitate yourself have come about by genuine remorse arising from the consequences for the victim from your conduct which occurred whilst you were affected by drugs. I am satisfied that despite your long-term drug use your prospects for rehabilitation can be considered reasonable. In my view the community will benefit by encouraging you to reach for eventual full, long-term, permanent rehabilitation. I am satisfied you have the right supports in place that will eventually see that result. The main support is your family. The second support is Mr Ambrosius, and the Second Step Program. His efforts and that of the sponsor, Toll Holdings, are to be commended.
36 Ms Swiney recognised that a term of imprisonment was the only available disposition here. She emphasised you have well commenced on the path to rehabilitation, and I am satisfied that when released you will have your family to go to, and you will find employment with Toll. Ms Swiney asked that I fix a head sentence that reflects your pleas of guilty, the fact you will give evidence for the prosecution against Andonovski, a fact that these charges have been delayed through no fault of your own, and your impressive efforts of rehabilitation. She also emphasised the other mitigating factors, which I have mentioned above. Ms Swiney's plea was impressive and made easier by the fact that you have yourself moved to turn your life around.
37 Ms Zammit, who appeared to prosecute, agreed that there were a number of matters in mitigation that had to be considered, but she submitted the offending here was very serious, and you have offended many times before. She submitted this offending was aggravated by the fact that it occurred whilst you were on bail. She submitted the appropriate disposition was a head sentence of four to five years, with a non-parole period of two, two and half to four years.
38 I do not accept the prosecution submissions as to range of sentence properly reflect all of the matters that should be taken into account in mitigation here. True it is, the principles of general deterrence ordinarily would guide the kind of disposition imposed for this kind of offending, and in passing sentence I have had regard to application of the principle of general deterrence. However, in my view the mitigating factors here, and the efforts you have made to change your life around need to be given proper weight. The community accepts that its long-term best interests are served by you rehabilitating yourself.
39 At the age of 33 you are still relatively young and you can still have a worthwhile life. The court should not impose a sentence that would crush any chance of that occurring. My sentence attempts to take all of these matters into account. I have imposed a head sentence that is heavily reduced because of the mitigating factors at work here, and I have imposed a non-parole period that is shorter than what might normally be expected to enable you to hopefully be fully rehabilitated back into the community.
40 Would you please stand, Mr Gala.
41 On Charge 1, recklessly cause serious injury, you are convicted and sentenced to two years' imprisonment.
42 On Charge 2, attempted armed robbery, you are convicted and sentenced to two and a half years' imprisonment. I order that 12 months of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 2, making a total effective sentence of three and a half years' imprisonment. I direct that you serve a minimum of 21 months' imprisonment before being eligible for release on parole. I direct that 36 days pre-sentence detention be reckoned as having already been served under the sentences past this day, and be entered into the records of the court.
43 For the purposes of s.6AAA of the Sentencing Act 1991, I declare that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years' imprisonment, and I would have fixed a minimum term of four years before you would have been eligible for parole.
44 I declare that I have sentenced you on your undertaking to give evidence against Andonovski, and this be recorded in the records of the court. If you do not honour that undertaking you can be re-sentenced for this offending. Do you understand that?
45 PRISONER: Yes.
46 HIS HONOUR: Very well. Were there any other matters?
47 MS LINZNER: No, Your Honour.
48 HIS HONOUR: Have I correctly calculated the pre-sentence detention?
49 MS SWINEY: Yes.
50 HIS HONOUR: You agree on 36 days.
51 MS SWINEY: Yes, we do.
52 HIS HONOUR: Very well. Would you remove Mr Gala, please.
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