Director of Public Prosecutions v Gavazovski

[2018] VCC 1515

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00005

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALBERT GAVAZOVSKI

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2018
DATE OF SENTENCE:	18 September 2018
CASE MAY BE CITED AS:	DPP v Gavazovski
MEDIUM NEUTRAL CITATION:	[2018] VCC 1515

REASONS FOR SENTENCE
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Legislation Cited:    

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Ms H. Canham	Victoria Legal Aid

HER HONOUR:

1       Albert Gavazovski, you have pleaded guilty to one charge of attempted armed robbery.  The maximum penalty is 20 years’ imprisonment.  You have also pleaded guilty to one charge of robbery.  The maximum penalty is 15 years’ imprisonment.  Your crimes arise out of events which took place on 20 April 2017 and 28 April 2017.

2       It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A.  I proceed to sentence you on the basis of the facts summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say that the facts in this case are most serious.

3       I turn then to a brief summary of your offending.

4       You were 44 years of age at the time of this offending and are 45 at sentence.

5       I turn to Charge 1, attempted armed robbery.  On 20 April 2017 at approximately 9.30pm, you attended Poon’s Chinese restaurant in Footscray.  When you entered the restaurant there were no customers present.  You were holding a syringe in your hand as you entered.

6       You walked behind the counter and attempted to open the cash register.

7       Two staff who had seen you ran to the back of the restaurant into the kitchen and alerted the owner, Mr Kit So.  So came out to the counter area and saw you attempting to open the register.  When he pulled your hands away from the register, you pointed the syringe at him and said “Open the register and give me money or I will stab you.”

8       So yelled at you to get out.  Alan Tan, a staff member, grabbed you and you struggled.  Tan pushed you away from the register and you said to him, “Open the till or I will stab you.”

9       Other staff then came out of the kitchen and you ran from the restaurant.

10      I turn to Charge 2, robbery.  On 28 April 2017, Hieu-Hanh Tran was sitting in his Toyota Tarago car.  You opened the front passenger door of Tran’s car and got into the front passenger seat.  You put your right arm on Tran’s shoulder and touched the left side of his neck.  You said you had a knife and would cut Tran’s throat.  You told Tran “Don’t do anything or I cut your neck.”

11      You demanded money and Tran showed you his wallet.  You said “Take it out slowly and count it to me.”  A total of $370 was handed to you.

12      You demanded to be driven away, saying “Now drive, I’ll tell you where to go.”  At your direction Tran drove to Yarraville, with you repeatedly yelling “You do what I say or I cut your neck.”  The whole time Tran was driving, you had your arm on Tran’s shoulder and your hand next to his neck.

13      You released Tran near Williamstown Road in Yarraville, however, before releasing him, demanded his Bendigo Bank credit card and PIN.  Tran handed the card to you but gave you a false PIN.

14      You told Tran to get out of the car and you then drove off.

15      A short time later, while Tran was reporting the matter to police, you were seen and were arrested.

16      You were taken to Footscray Police station where you participated in a recorded interview with police, at which time you denied any knowledge of either incident.

17      All the property relevant to Charge 2 has been retrieved.

18      The prosecution provided a brief chronology.  You were arrested on 28 April 2017.  There was a filing hearing on 1 May 2017.  The matter was then listed for a committal case conference on a couple of occasions, ultimately resolving on 18 December 2017.

19      You formally entered your plea of guilty, and the matter proceeded by way of hand‑up brief on 8 January 2018.  I accept, consistent with the submissions of the prosecutor, that your plea of guilty was entered at the earliest opportunity when your offending resolved to a suitable Indictment.

20      You have pleaded guilty to these charges, and you are entitled to have that fact taken into account in your favour, and I do so.  The community by your pleas of guilty has been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial and in particular I refer to the victims of your offending.

21      Further, I take into account in your favour you intimated early your intention to plead guilty to these charges, albeit you initially when spoken to by police, denied any of the offending.

22      Your pleas of guilty have utilitarian benefit.

23      I also accept that the matter resolved relatively early, once your legal representatives spoke to the prosecution regarding appropriate charges. 

24      In the circumstances I am prepared to accept your plea of guilty indicates some remorse for your offending.  I also note in that regard you have also expressed remorse to a number of people, including family and also professionals.

25      No victim impact statements were before me.  I understood the victims had been advised of their rights to make a statement. 

26      You have admitted a number of prior and relevant court appearances which are concerning.  Much of your offending behaviour involved dishonesty matters, although I also note use of drugs.

27      You first appeared at Melbourne Magistrates’ Court on 27 October 1993 on charges of going equipped to steal, two charges of theft from a motor vehicle, failing to answer bail, amongst other charges, and without conviction you were fined and placed on a good-behaviour bond.

28      On 17 December 1993 you appeared at Melbourne Magistrates’ Court on charges of intentionally or recklessly causing injury and fail to answer bail, and you were sentenced to three months’ youth training centre.

29      At Melbourne County Court on 11 April 1994, on appeal from that decision the appeal was allowed, and you were convicted and released on a good-behaviour bond for a period of two years.

30      You appeared at Williamstown Magistrates’ Court on 14 May 1996 on a charge of use heroin, and were convicted and fined $250.

31      On 17 October 1996 you were before Broadmeadows Magistrates’ Court for handle and receive stolen goods and two charges of failing to answer bail, and were convicted and fined. 

32      You appeared at Melbourne County Court on 23 September 1997 on a charge of armed robbery, failing to answer bail and other charges.  You were sentenced on the armed robbery to 2 years and 6 months’ imprisonment, with some cumulation in relation to the other charges, resulting in a total effective sentence of 3 years with a non-parole period of 18 months.

33      On 17 September 2001 you appeared at Sunshine Magistrates’ Court on theft from a shop and failing to answer bail, and were with conviction fined.

34      On 1 March 2002 you were before Sunshine Magistrates’ Court on a charge of theft and going equipped to steal, and were sentenced to an aggregate 2 months’ imprisonment.

35      You next appeared at Sunshine Magistrates’ Court on 31 July 2002 on two charges of theft, two charges of using heroin, and unlawfully being on premises, and you were sentenced to an aggregate 12 months’ imprisonment.

36      You then subsequently appeared at Melbourne County Court on 17 October 2002 on a charge of robbery, make a threat to kill and common law assault, and were sentenced to a total effective sentence of 1 year and fined for possessing amphetamine.

37      You then appeared at Melbourne Magistrates’ Court on 31 October 2002 on another charge of robbery and theft, and received a total effective sentence of 6 months’ imprisonment.

38      I note, however, that since 2002 and this offending before me you have not appeared at court, and that is to your credit.  Unfortunately, however, you were not able to maintain your abstinence from offending.  I was told the offending before me occurred during a period of significant stress for you, at which time you returned to drug use.  I shall refer to that submission in more detail shortly.

39      Your counsel, Ms Canham, prepared a written outline of submissions for your plea hearing.  She conceded, quite appropriately, a custodial sentence was the only appropriate disposition for your offending.

40      In her written outline of submissions I was told about your background and history.  Your parents emigrated to Australia from Macedonia and you were born and raised in Footscray, Melbourne.

41      You witnessed alcoholism and family violence by your father towards your mother when you were a child.  You were about 10 years of age when your father left the family home.  You thereafter had limited contact with him and were largely raised by your mother, who was in court to support you during your plea hearing, as I recall.

42      You successfully completed HSC at Footscray High School in 1990, then began a Bachelor of Sports Psychology at Swinburne University.

43      In the past you were a talented soccer player.  As a teenager you were selected for the Australian Schoolboy soccer team, and represented Yugoslavia in the Ansett Mini World Cup.  You also played club soccer with two clubs.

44      You were also captain of a team representing the Central Region in Victorian State competition.

45      At approximately 18 years of age you were contracted to play soccer in Belgrade and you transferred your Sports Psychology degree to the Belgrade University, spending about eight months studying and playing soccer there.  At that time you had a promising career ahead of you.

46      When you were about 19 years of age you were conscripted into the Yugoslav Army and spent approximately 18 months service with the Army, witnessing and participating in various war atrocities.

47      Whilst in the Army you began using illicit drugs, including cannabis and later heroin provided to you by Army forces.

48      You returned to Australia in mid-1993, at that time with post-traumatic stress disorder and polysubstance abuse.  Your criminal record began at that time.

49      You resumed a relationship with Marina Antoska, and married in 1997.

50      There are two children of that marriage, Christopher, 18 years of age and Monica, 12 years of age and both provided character references for your plea hearing.

51      Whilst in jail in 2002 you were diagnosed with PTSD by Dr Leahey.

52      After your release from gaol in 2002 you engaged with Dr Leahey for treatment for PTSD and reduced your drug use, reflected in the lack of criminal history for approximately 14 years, to which I have referred.  Although I also note that Dr Leahey stated in his report, to which I shall shortly refer, you continued use of illicit substances from July 2003 (pp. 3 and 4 of his report). 

53      Between 2002 and 2015 you had a period of relative stability in your life, as outlined within Ms Canham’s submissions (paragraph 17) despite your drug use.  During that time you had some employment and casual roles, ultimately being placed on a Disability Support Pension due to your PTSD. 

54      In that time you were an active father, being the primary caregiver to the children while your wife returned to her cleaning business.

55      You were also involved in coaching your son’s soccer team in the Werribee Junior League and involved in the community, fundraising to send money back to Macedonia.

56      In 2014 you and your wife separated, although you remained close and you continued regular contact with the children.

57      In 2015 your father passed away, and on 24 January 2016 your wife passed away from lung cancer.  Hers was a sudden death, having being diagnosed just six months prior.  Whilst you had separated from her prior to her death, you moved back into the family home whilst she was receiving treatment.

58      After her death the family home was lost to the bank, and you and your children moved in with your mother in Altona Meadows.  Your two children remain with your mother to date and I was told your mother and the two children visit you regularly in custody.

59      I accept that as a result of your wife’s illness and death you were devastated, and relapsed into greater drug use.

60      There were a number of references before me, one from your mother, Cena Karovska.  She said you did everything a father should, looking after the children, trying to maintain a job and to go down the right path.  For 12 years you “held it together with your wife”, unfortunately that changed with her passing.

61      She noticed you slowly started going downhill, wondering how you were going to support the children.

62      She said your two children missed you.  She did everything she could to support them and also to support you.

63      Whenever she spoke to you, you spoke of your regret about what you had done, that you knew what you did was wrong.

64      There was a reference from your daughter, Monica, who described you as “the best”.  You would do anything for she and her brother.  You would buy her presents, cook with her, help her with homework and encourage her to do things.  She missed you and missed the things you did together. 

65      There was a reference from your son, Christopher, who described you as a good family man “always there for us” and that he missed you. 

66      There was also a reference from Zlatko Gavazovski, your brother, dated 10 September 2018.  He visited you in prison.  You were very remorseful for your offending.  He referred to not only the loss of your father four years ago, but also your wife's death and leaving two children behind, that you were doing a good job, he said, raising your children, however, as a result of the loss of your wife and father you lost your way.

67      He described you as a fantastic father and brother, and believed you were sorry and wanted to return home to your children.  He would assist you to stay away from trouble upon your eventual release from custody.

68      Turning to the circumstances of your offending and the nature of it, Ms Canham submitted it was impulsive, with a lack of planning and sophistication.  She urged there were no injuries sustained by your victims and no co‑accused were involved.  Further, that no property was obtained in relation to Charge 1 (of course I note the charge is attempt), and in relation to Charge 2, no weapon involved, and all property was recovered and I am aware of all those matters.

69      It was submitted that your offending was committed in the context of relapse to fund your drug use following your wife’s death. 

70      Your counsel also relied upon your pleas of guilty to this offending, and I have already referred to that as being relevant in mitigation of your sentence. 

71      Ms Canham also referred to your absence of convictions over approximately 14 years prior to this offending, which again I have noted.  As I discussed with her, however, that is a two-edged sword in that whilst you are to be commended for that significant period of time without offending, you nevertheless when in a stressful situation, returned to criminal offending, particularly the serious offending before me.

72      Ms Canham submitted, and I accept, you are remorseful for your offending and you have indicated that not only to family but also to professionals, and I shall refer to the reports of Dr Leahey and Warren Simmons shortly. 

73      Regarding your offending, Ms Canham submitted there was a lack of aggravating features often found in this type of offending, and urged the context in which this offending occurred, that is, your wife’s illness and death.  I am aware of this.  She urged your moral culpability would be reduced given that history which led to an addiction.

74      Ms Canham urged, not consistent with Verdins principle, rather, given your disadvantaged history leading to your addiction but in that regard I was referred to the decision of R v Rookledge[1]. 

[1] [2004] VSC 300

75      It is of course difficult comparing cases factually, and I note the very different circumstances taken into account in that case from yours, and I refer in part to the ‘setting’ of that offending (referred to within paragraph 15 of Rookledge) and the index offending involving in that case violence towards a female (and the offence of murder).

76      Background can of course be a relevant sentencing consideration and has recently been referred to in DPP v L’Eveille[2] citing Bugmy v The Queen[3] and DPP v Arvanitidis[4]. 

[2] [2018] VSCA 60

[3] (2013) 249 CLR 571

[4] [2008] VSCA 189

77      In my opinion, on the material before me, it does not reduce your moral culpability.  It is clear that despite continued use of drugs between 2002 and 2015, you were able to not offend.  You were also well aware, given your offending history that drug use was likely to lead to you to committing further offences.  Your drug use leading to offending is very different from, for example, a history of exposure to violence leading to violent offending.  Further, the nexus with your offending in your case does not support a reduction in real moral culpability, see DPP v Terrick & Ors[5]. 

[5] [2009] VSCA 220

78      In that regard I note the report of Dr Leahey, who referred to your self-report of your offending.  You stated to him that on the day of your first offending (Charge 1) you had lost all your money on the ‘pokies’ and were ‘off your head’ on ‘pills’ and ‘ice’.  You were in Footscray ‘chasing heroin’ and were ‘drug fucked’ feeling sorry for yourself.  You said you were ‘out of control’ until the robbery on 28 April 2017. 

79      You also reported that in addition to your significant use of illicit substances at this time, you continued to abuse large amounts of your prescription medication including up to eight times the prescribed doses of olanzapine (antipsychotic), mirtazapine (antidepressant) and clonazepam (anxiolytic). 

80      I have no doubt your drug intoxication at the time contributed to your offending, however does not, in the circumstances, reduce your moral culpability. 

81      Dr Leahey concluded there was no evidence you were experiencing active symptoms of PTSD or major depression at the time of your offending before me but I do accept, however, you were at the time distressed by your wife’s death. 

82      I also note the supplementary report of Mr Simmons.  Your symptoms of depression were secondary to your PTSD, the latter he concluded not directly contributing to your offending behaviour.

83      Your offending, in my opinion, followed your wife’s death and resultant increased use of illicit substances and prescribed medication.  Your involuntary introduction to heroin whilst in the Army does not reduce your moral culpability for the offending before me given all the circumstances surrounding it.

84      Ms Canham also submitted that whilst conceding Verdins[6] principles 1–4 did not apply in your case, urged principles 5 and 6 did.  In my opinion the reports to which I have and will also shortly refer do not support the application of Verdins principle 6, however, do provide support for Verdins principle 5, and I have taken that into account in mitigation of your sentence. 

[6] (2007) 16 VR 269

85      Ms Canham also submitted imprisonment would be more burdensome for you as you would be separated from your dependent children, knowing they had been left without a parent to look after them, and being mindful of the burden placed upon your mother of having to care for your children, albeit not relying upon ‘exceptional circumstances’.  At the time of this offending, however, the presence and then needs of your children were not obviously your number one priority at the time you committed this offending, but I do accept you will be worried about them whilst in custody. 

86      Ms Canham conceded there should be some cumulation for the two offences before me and she is correct.

87      In her written submissions, Ms Canham conceded general and specific deterrence and community protection were important considerations.  She is correct.

88      You have been in custody since your arrest on 28 April 2017, and as at 10 September 2018 you had spent 501 days in custody inclusive of that date by way of pre-sentence detention for these offences.

89      There was a report before me prepared by Warren Simmons, Consulting Psychologist, dated 18 April 2018.   He interviewed you in prison on 18 April 2018.

90      Further details were provided within that report of your background and history, which I have read but will not repeat in detail here. 

91      Your mother is 63 years of age and your father died when he was 61 and you have a younger brother, Zlatko, aged 43.  Descriptions were given of your life at home after your father left when you were 10 years of age.  You indicated that in many ways family life improved after he left, although you said you had to be a parent to your younger brother and also had to take care of yourself, as your mother was often working. 

92      You saw little of your father after he left and moved interstate, and you had little interest in knowing about him.  It was only when you were much older that you sought him out.  You indicated to Mr Simmons that your overwhelming impression of family life when your father was around, and before your parents separated, was that it was “frightening”.

93      Referring to your education, you described being towards the top of the class and doing well in most subjects.  You were a leader at school and your relationships with teachers and peers were positive. 

94      You successfully completed Year 12 at Footscray High School, then attended Swinburne University. 

95      You again described being offered the contract to play soccer in Europe, however, only there a short time before drafted into the Kosovo war.

96      You described your three years in the Army as being very troubled.  You attempted to flee the military on two occasions, but were incarcerated for a few months each time.  You were given heroin and other drugs by the Army, as I have previously stated.

97      I note Mr Simmons referred to you returning to Australia in late 1994, however I note your first prior appearance at court was recorded as 27 October 1993.

98      Since returning to Australia you had not undertaken any further studies, nor been in employment, rather you were on a disability support pension.

99      You described your relationship with Ms Antoska.  You were with her for about 22 years.  You attributed your successful end to your substance abuse in 2002 to her involvement with you, although I note Dr Leahey referred to your ongoing drug use when with her.

100     You said alcohol had not been of concern for you and you described little interest in alcohol as you were committed to sport.  You began smoking cannabis when in the Army, then smoking it on a daily basis.  After 2002, when released from prison, you said you continued to use that drug (and other illicit drugs it seems) as it relaxed you.

101     In the Army you began smoking heroin, then injecting, becoming dependent almost immediately and you said that use continued until you were released from custody in 2002, although I do note a different history from Dr Leahey.  You had been on methadone for four or five years, gradually withdrawing and ceasing.  You told Mr Simmons you had not used heroin after you were incarcerated in 2001 until your wife died, at which time you relapsed into heroin use.  I note again that appears to be somewhat inconsistent with the report of Dr Leahey.  You then referred to your return to drug use after your wife’s death.

102     You described to Mr Simmons that after your wife’s death you were not coping emotionally, were consuming alcohol daily, increased your cannabis use, then relapsed into heroin use.  You also reported use of amphetamines and cocaine every one to two weeks, whenever you were unable to obtain heroin.

103     You described being prescribed Avanza and Seroquel by Dr Leahey after you made contact with him in prison in 2001, then attending with him for psychotherapy for many years.  You described a breakdown in the therapeutic relationship with Dr Leahey, further elaborated upon in his report.

104     Mr Simmons confirmed you had been diagnosed with post-traumatic stress disorder and major depression as a result of your experiences during the Kosovo war.

105     Regarding your current offending, you explained you wanted to escape your feelings of loss of your wife, and you had relapsed into substance use, and in that context committed the offences to obtain money to fund that use.  You said you were sorry for your offending, describing it as embarrassing and shameful, and that you felt sorry for the victims.  You did not attempt to minimise your offending.

106     In Mr Simmons’ opinion, following the death of your wife you could not cope emotionally and sought refuge in drugs, and quickly found yourself dependent and returning to offending behaviour.  This, however, needs to be read with your continued use after 2002 referred to by Dr Leahey.  You said you understood the impact your actions may have had on your victims.

107     Mr Simmons noted you had a long-term physical condition that “may” require either a knee reconstruction or knee replacement.  You were being treated with prescription medication whilst in custody, however, were told that the medication had been ceased.  I note you instruct you are now on methadone for knee pain.

108     In the opinion of Mr Simmons, while there was clear evidence of some depressive symptoms and the presence of some intrusive memories from your time in the military, suggestive of reactivation of your symptoms of PTSD possibly related to being incarcerated, given you were also incarcerated during the Kosovo war.  Mr Simmons considered many of the other symptoms had abated.  This also is relevant when I assess the application or otherwise of Verdins principles, to which I have previously referred.

109     Mr Simmons recommended counselling for drug and alcohol.  He noted your prospects of rehabilitation would most likely be dependent on the degree to which you were able to come to terms with your wife’s passing, and that there should be some counselling focused on grief and loss.  If you were unable to successfully grieve for your loss, then there was the potential for further relapse. 

110     I note you are yet to commence any form of counselling, which gives me some concerns regarding your rehabilitation prospects until you address your drug/grief issues, although I do note you saw Dr Leahey for some time.

111     A supplementary psychological report was prepared by Mr Simmons dated 1 May 2018, in which Mr Simmons referred to you still having nightmares of your time in the war, consistent with post-traumatic stress disorder, although it was felt they were not as significant as they had been in the past.  There were, however, still intrusive memories during waking hours, and you presented with symptoms of depression secondary to post-traumatic stress disorder.

112     Mr Simmons concluded that as part of your PTSD was the result of incarceration in Kosovo, further incarceration ‘may’ lead to an exacerbation of that condition.  ‘Should’ your symptoms remain poorly controlled, your time in custody would be more difficult for you than an individual who did not have that condition.

113     As I say, I accept applicability of Verdins principle 5, not principle 6.

114     There was also a report from Dr James Leahey, Consultant Psychiatrist, dated 23 August 2018.  He interviewed you on 8 August 2018.

115     You had been diagnosed with major depression, post-traumatic stress disorder and polysubstance abuse and were treated by Dr Leahey between July 2002 and October 2014 (ie: during the time you were, in your self-report to Mr Simmons, abstinent from drug use). 

116     His first contact with you was in the Outpatients department at Port Phillip Prison where you were referred to him for assessment for depression and anxiety.

117     After some resistance, you agreed to be admitted to St Paul’s Psychosocial Rehabilitation Unit at Port Phillip Prison, ultimately engaging well in the program and seeing Dr Leahey for psychotherapy.

118     Further details were provided regarding your personal history and background, much of which was contained within the report of Mr Simmons, and I will not repeat it here.

119     Following your release from custody in 2002 Dr Leahey saw you in his private practice from 22 July 2003 on an approximately monthly basis until October 2014, when he terminated the therapeutic relationship with you after it was discovered you had been altering some of him prescriptions.

120     Dr Leahey next heard from you in April 2016 when you told him of your wife’s death three months prior.  At that time Dr Leahey offered to see you for grief work/support, but you failed to attend two appointments.  In January 2017 you sought an appointment through your general practitioner, but this was declined by Dr Leahey due to your accumulated poor behaviour towards him.

121     Medications were prescribed while you were under Dr Leahey’s care (p.3 of his report).

122     Dr Leahey referred to damage to the ligaments of your right knee, secondary to sporting injuries, and the pending knee reconstruction or knee replacement, although I note no date has been set for surgery.

123     In contrast to what you told Mr Simmons about your cessation of drug use in 2002, Dr Leahey referred to your release from prison in July 2003 and your quick relapse into illicit substance use by August 2003, using heroin daily, struggling to control that use, despite pressure from your wife.  Dr Leahey commenced you on the methadone program in September 2003, however, as noted by him, you were still using heroin episodically.  After July 2013 Dr Leahey referred to your continued use of illicit substances including heroin and marijuana. 

124     At recent interview with you at Barwon Prison on 8 August, you said that at the end of the therapeutic relationship with Dr Leahey you tried to justify what you had done, but your wife was very angry.  You then developed a “fuck it” attitude, and engaged in rapidly escalating drug use, principally ice and heroin.  I note this would seem to be whilst your wife was still alive, not simply you reverting to drug use after her death.

125     Dr Leahey observed you were also continuing to obtain medications from a variety of general practitioners and abusing those to help you ‘come down’ after binging on ice and consuming alcohol.

126     You reported heated arguments with your wife and that the situation was chaotic.

127     Dr Leahey referred to how, following your wife’s death, you continued to “further” fall apart.

128     Dr Leahey referred to your long-established diagnoses of major depression and post-traumatic stress disorder, however they were well controlled and you were symptom-free.  It was difficult for him to comment as to the presence or absence of symptoms of those conditions at the time of your offending.  You were, however, in a highly distressed state after the death of your wife, abusing illicit and prescribed medication.

129     In his opinion he did not believe there was adequate evidence that at the time you were experiencing any psychological condition other than intoxication with multiple substances on a background of significant grief.  Your drug use and behaviour could not be completely divorced from your significant trauma history.

130     There was no evidence you were experiencing active symptoms of PTSD or major depression at the time of your offending. 

131     Dr Leahey noted also, at the time of interview on 8 August, you were not experiencing any symptoms of major depression or PTSD, most probably he thought, due to you being on stable medication.

132     Turning to the likelihood of your relapse to drug use, such would be dependent on any structures in place at the time you were released.  Without significant and accountable supports, in his opinion, there was a high likelihood you would relapse into drug use and eventually crime to support that lifestyle.

133     Your mental state and drug intoxication at the time contributed to your offending behaviour.  Upon your eventual release from prison, Dr Leahey agreed to recommence your treatment, although I am sure that will depend upon your preparedness to actively engage with Dr Leahey, otherwise that treatment would likely be ceased as it had been in the past.

134     Dr Leahey was of the opinion your attendance be mandated, eg: as part of parole conditions, to ensure no ‘slippage’ in your attendance. 

135     I note Dr Leahey did not think your condition would make imprisonment more difficult for you than for a person who did not have that condition. 

136     Further, Dr Leahey concluded there was no evidence imprisonment over the past 16 months had an adverse impact on your health, although he expressed concern a significantly longer term ‘may’ have an adverse impact on your mood disorder in particular.  Your symptoms of post-traumatic stress disorder, while being moderated by medication, nevertheless had the ‘potential‘ to become more overt under certain circumstances (not defined).

137     He further stated, with the right structures and supports in place he concluded there were good prospects of rehabilitation and low likelihood of re‑offending.

138     Dr Leahey noted you showed great remorse during the recent interview, and had accepted full responsibility for your offending. 

139     Ms Canham referred to your possible knee reconstruction and urged you would find your time in custody more difficult due to that knee injury specifically the pain you felt as a result.  I note, however, you have been prescribed methadone for that, and whilst it has been recommended you have either an MRI or CAT scan in October last year, that was yet to occur.  The prison authorities, as I am also told, are well aware of your knee injury and pain, which as I understood, was your main concern as opposed to any inability to move around.  In my opinion, minimal weight should be given to this in mitigation of your sentence.

140     Turning to your prospects of rehabilitation, I have at best guarded optimism given your previous, extensive and relevant offending, including armed robbery and robbery.  You have a number of issues which you need to address, specifically your drug use and likely grief counselling, for me to be confident regarding your rehabilitation prospects, however, when sentencing you, I must seek to maximise your chances of rehabilitation as they may be.

141     Mr Saunders, who appeared on behalf of the prosecution, referred to the shop attendant as a ‘soft target’, a term used by the Courts referrable to armed robberies of this type and I agree.  He also referred to the concern expressed by Dr Leahey that after July 2003, when you weaned yourself off methadone, you again resorted to drug use during that 14‑year period (p.4 report of Dr Leahey).

142     As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence when sentencing you, which is of considerable importance in a case such as this. 

143     In my opinion there is also the need for specific deterrence when sentencing you, as you have a lengthy and relevant criminal history, although I note you were able to abstain from criminal offending for fourteen years, although note you did re‑offend after such a long period of time, which causes me some concern, given your then ‘heavy’ drug use. 

144     I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re‑offending.  This concerns me, as you have a number of issues you need to address.  Treatment to date with Dr Leahey has not fully addressed those issues.  There are concerns about your preparedness to participate in a therapeutic relationship, given the cessation of that earlier relationship with Dr Leahey. 

145     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.  When sentencing you I apply the principles of totality. 

146     I sentence you as follows.

147     On Charge 1, you are convicted and sentenced to 3 years’ imprisonment.

148     On Charge 2 you are convicted and sentenced to 2 years’ imprisonment.

149     Charge 1 is the base sentence and I direct that 1 year of Charge 2 be served cumulatively upon Charge 1.

150     That results in a total effective sentence of 4 years’ imprisonment, and I direct you serve a period of 2 years and 6 months before you are eligible for parole. 

151 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words if you had pleaded not guilty to these and been found guilty of them, I would have sentenced you to a term of imprisonment of 7 years with a non-parole period of 5 years.

152 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 508 days in custody by way of pre-sentence detention (up to and including yesterday, which was 17 September 2018), and I direct that that be entered into the records of the Court.

153 Regarding Charge 2, robbery, pursuant to s.89 Sentencing Act 1991 any licence you hold is cancelled, albeit I was told you did not have a licence, and you are disqualified from obtaining a further licence to drive for a period of 3 years from today’s date (which works out at approximately 13 months ‘off the road’ after release). In determining the length of disqualification, I have considered the decision of R v Lefebure[7] referable to rehabilitation.

[7] [2000] VSCA 79

154     The prosecution made application for a Disposal Order.  Ms Canham, on your behalf, did not oppose the order being made and I make the order in the terms sought. 

155     Were any other orders sought?

156     MS van den AKKER:  No, Your Honour.

157     HER HONOUR:  So the maths is right?  Everyone happy with the maths?  I am not asking if you to agree with the figures.  I just want to make sure you have got the maths right.  Yes?

158     MS CANHAM:  Yes.

159     MS van den AKKER:  Yes, Your Honour.

160     HER HONOUR:   PSD correct?

161     MS van den AKKER:  Yes, Your Honour.

162     HER HONOUR:  No?  Excellent.  All right.  Anything else?  No?

163     MS van den AKKER:  No, Your Honour.

164     HER HONOUR:  Excellent.  Thank you, Mr Gavazovksi, if you would go out, please.  Your counsel will have to see downstairs.  Thank you.  Thank you for your help, Ms Canham.

165     MS CANHAM:  As the court pleases.

166     HER HONOUR:  And the prosecutor but I mean on the plea, all right?

167     MS van den AKKER:  Yes.  Yes, Your Honour.

168     HER HONOUR:  All right.  Thank you.

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