Director of Public Prosecutions v Gavric
[2011] VCC 779
•16 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-09-02307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| SINISA GAVRIC |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May to 7 June (Trial); 9 June (Plea) | |
DATE OF SENTENCE: | 16 June 2011 | |
CASE MAY BE CITED AS: | DPP v Gavric | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 779 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence Affray- Plea of guilty before the Jury - Acquitted of all other charges at trial - Youthful offender - Relevant prior convictions and subsequent - Crown and Defence agreed in relation to disposition – Relevant criminal record
Sentence: Convicted and sentenced to Community Based order of 2 years’ duration – 104 days’ detention in Youth Justice Centre declared – s.6AA Sentencing Act 1991 declaration – Ancillary order disposal order made 8 July 2011
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Thomas | Solicitor for Public Prosecutions |
| For the Accused | Mr Lindner | Matthew White & Associates |
HER HONOUR:
1 Sinisa Gavric, having pleaded guilty to one count of affray and not guilty to a number of other counts on the presentment, and after I took three counts away from the jury’s consideration, the only matter in relation to which you have been found guilty is that matter to which you pleaded guilty – namely, one count of affray. The maximum penalty for this charge is five years’ imprisonment.
2 In respect of the way that the Crown put its case at trial, I now sentence you on the basis of your assertions in the record of interview and the way that your counsel responded to the Crown case – that is, you did not actually attend 86B Oberon Avenue, St Albans, but rather you aided and abetted others to do so, knowing that there would be a confrontation. In order to have pleaded guilty to this charge, you have acknowledged all of the elements of the offence, and, as I understand it, this was on an aiding and abetting basis, (although I must say it was not abundantly clear as to whether it was also put on a concert basis by your counsel).
3 In any event, in sentencing you, I do so on the basis that you assisted others in attending those premises for the purposes of a confrontation which in its nature must have involved at least a show of force, insofar as your state of mind was concerned. You did know that those you were driving to a place near these premises were attending in company with others, and you did know that the purpose for the “visit” was to address a previous situation where a person you cared for, (as indicated in your record of interview) “Tuan”, was “chopped” at the St Albans Festival several months earlier. Accordingly, you were willing to facilitate a confrontation in the nature of a revenge attack upon people who were gathering for a party, notwithstanding that I cannot find that you were aware as to the extent or the gravity of such a confrontation. That confrontation involved inflicting violence upon a number of people and terrorising a number of people (including children) gathered at the address for a birthday party. It also involved mindless criminal damage which was perpetrated at the house.
4 Mr Gavric, if you had been proven to have attended the premises and taken an active part in what went on there, I would have taken a far sterner view of the level of your criminality. However, you have not been proven to have attended the premises, and so your role in the affray was a far lesser role than that of those who actually attended.
5 Most belatedly, I have received victim impact statements in respect of some of the victims of the affray that you helped to facilitate. Ms Civilli speaks of the profound effect that this crime has had upon her and her children. All of them have required counselling and one of the children, Selda Civili, had an injury to her left knee and ankle when she tried to run inside away from those hoodlums who attended the house. All of them have suffered ongoing psychological and emotional problems because of what you have assisted others to do. Selda who is a little girl is having problems with her schooling because of this dreadful incident.
6 Nilgun Okanlar has also made a victim impact statement where he reports suffering from anxiety and panic attacks since the time of this affray. He feels unable to attend places anywhere near where this event took place and has flashbacks of this night. Upon coming on to the Bench I have also had cause to read a further impact statement provided by Kirra Sien and she speaks of her fear and anxiety which has arisen as a result of the incident on that particular evening.
7 Whilst you had a limited role in this offending, you should know the very real trauma that you have helped cause to those who had the unhappy misfortune to be at the birthday party when this shocking affray took place.
8 Upon the hearing of your plea, I was told the following in relation to some of your co‑offenders:
9 In respect of Jason Huynh, all matters alleged against him were withdrawn, as were matters alleged against Simon Vo.
10 Tuan Trinh pleaded guilty to one count of affray on 15 April 2011, and on 29 April 2011 he was sentenced to a two-year Community-based Order without conviction and was ordered to undertake 250 hours’ unpaid community work. Mr Trinh had no prior convictions.
11 Tan Nguyen pleaded guilty to criminal damage and affray. He had no prior convictions and he admitted his involvement in these matters to the extent that he had a bottle which he threw at a window at the premises. He is awaiting the hearing of his plea and sentence in this Court before His Honour, Chief Judge Rozenes.
12 In your case, the Crown indicated that they did not seek any further time in custody for you, but that it would be appropriate for you to be assessed for a Community-based Order. Mr Lindner appeared to agree with this submission, although there was some difficulty in his mind as to whether I could sentence you to a period of detention which had already been served, in combination with a Community-based Order. He accepted that a conviction was appropriate. Having looked at the relevant provisions of the Sentencing Act 1991, I am satisfied that there is nothing which stops me from imposing such a sentence.
13 You have relevant prior convictions, as follows:
14 On 17 July 2006 you were placed on six months’ probation with a special condition that you participate in the “BRAVE program”, as it is called, and attend drug and alcohol counselling as directed in respect of one charge of causing injury intentionally.
15 On 10 December 2008, you were released on a 12-month Supervision Order with a special condition that you attend anger management and counselling as directed in relation to aggravated burglary, affray, and recklessly causing serious injury.
16 I note with some concern that it was only two months after that order was imposed that you committed the offence for which I now sentence you. Having spent some time in Youth Justice Centre on remand for the matters for which you have just faced trial, you were sentenced to a period of detention there for another charge of recklessly causing serious injury. I note that this offence was committed in August 2008; hence it arises from offending which pre-dates the matter for which I now sentence you. However, I must take all of these matters into account when I assess your prospects of rehabilitation and specific deterrence.
17 On your plea, I was told that you have spent 104 days in Youth Justice Centre in relation to this matter.
18 You are 21 years old, having committed this offence when you were 18 years of age. As such, you are still a youthful offender, although this will not be something that you can call in aid for too much longer, if you choose to re-offend.
19 The fact of the matter is that your offending on this occasion, even insofar as you played a limited role, indicated your preparedness to take part in cowardly and thuggish behaviour, and at a time when you already had been given a chance to change your ways some two months earlier. As I said to your counsel on your plea, if you continue to engage in such thuggish and cowardly behaviour, you will almost certainly be serving time in an adult gaol, which is certainly a most undesirable place, especially for a young man.
20 I was told that whilst you were detained at Youth Justice Centre, you engaged in all courses available to you, and have therefore obtained some breadth of experience in a number of areas. More importantly, you engaged in an anger management program which has hopefully been beneficial to you. Mr Lindner said that he had spoken to your case manager, Ms Para Grigorakis, who supervised you upon your release from Youth Justice Centre. She indicated that your compliance with all that was required of you since being released has been excellent, and that you have demonstrated a very positive attitude.
21 Following your release, you commenced Year 11. However, after completing first term, you then embarked on a bricklaying apprenticeship. Although you have changed employers, although it would seem that that has not actually eventuated as I am told today, or was told by email, I suppose, but it was confirmed today that you are intending as I am presently advised to continue with that apprenticeship and are actively looking for a new employer. As I said to your counsel, I do hope that you do continue to engage in the apprenticeship and that you do find another employer to take you on. It is important that you are as busy as possible in productive work, rather than perhaps being idle which might open you up to some sort of temptation to re-offend.In any event, you will have unpaid community work and programs to engage in during the course of the next two years by virtue of a Community-based Order that with your consent I am about to impose.
22 I was told that there were three matters which boded well for your prospects of rehabilitation, namely:
· Your apprenticeship;
· Second, that you live with your parents; and
· Third, that you have been in a stable relationship for a number of years with a young woman by the name of “Leila”.
23 Mr Lindner submitted that on the basis of these matters, you had very good prospects of rehabilitation; however, I note that you were living with your parents and were in a relationship with Leila at the time of this offending, so these influences in your life at that time did not assist you in refraining from your role in this affray, nor, would it appear, from criminal behaviour before this. However, it is to be hoped that having reached the age of 21 years, and having now embarked on an apprenticeship, and perhaps having some insight into the seriousness of your conduct and the real risk of you going to gaol should you continue on such a mindless and violent path, you will not re-offend. I note that you have no outstanding matters once I have dealt with the affray; in all the circumstances, I assess your prospects of rehabilitation as fair.
24 I take into account your personal background. Both of your parents are Serbian – your father is a chronic alcoholic, and you do not enjoy a close relationship with him. When you were a child, you lived in an area that could only be described as a war zone in Bosnia, and had the unfortunate experience of seeing a number of dead bodies in houses near your own. However, unlike a number of people who died in that dreadful episode in world events, you and your parents had the benefit of coming to Australia as refugees. You lived in various suburbs of Melbourne, and your father started a plastering business.
25 You attended Primary School, then you attended Copperfield College, where you completed Year 10 in 2005. At this stage, you were getting into trouble, and this resulted in you being dealt with by the courts. You were mixing with undesirable people in Sunshine and St Albans.
26 On 23 April 2009 you went into custody in relation to these matters, but having been sentenced for recklessly causing serious injury, to which I have just referred, you remained in custody until 11 January 2010, where you served your sentence in relation to that matter. I was told that you used to be part of a group called the “Kings Park Crew” which was a group of six Caucasians living in the Kings Park area. I do hope that you now see your membership in such a group and your behaviour in the past as being shameful and infantile.
27 I note that your mother, who is a very religious person, attended the trial on a number of occasions, and was present for you in court upon the hearing of your plea. You enjoy a close relationship with her. If this be the case, you must appreciate that she has been through a terrible time because of your behaviour, and you owe it to her, as well as to yourself, to now take a better path. I was told that you attend a church, being Serbian Orthodox; this is something that you do, not only because of your mother’s wishes, but something that you have done of your own accord. That you would therefore know very well that your faith is utterly incompatible with inflicting suffering on others or being party to this. As I said at the plea hearing, the challenge for you will be to use strategies which you will learn (if you have not learnt these already) when you are on the building site or in a social context, which will enable you to resist any urge to return to criminal offending. If you do not heed these warnings, then, as I have said, you will almost certainly end up in gaol.
28 You have a keen interest in soccer, and have played with various clubs since a teenager; you now play indoor soccer. You do have good family support from your mother, and you have a girlfriend who is studying Event Management, who appears to be a positive influence in your life as well.
29 I am told you no longer associate with those who offended with you on this occasion, which is to your credit.
30 I take into account that you have spent time in Youth Justice Centre relating to these matters, and also that you have spent a further period in relation to recklessly causing serious injury for which you committed in August 2008. Hopefully, the time that you have served in custody has been a salutary lesson not to re-offend.
31 You pleaded guilty to this matter, which, if accepted by the Crown, would have saved the witnesses the time and trauma of giving evidence, as well as saving the community the trouble and expense of running proceedings. I was not told the stage at which you first indicated your preparedness to plead guilty to the charge. But, in light of what you told police in your record of interview which is the factual basis for which I now sentence you, you are entitled to a not insubstantial discount in the penalty that you would otherwise receive.
32 In all of the circumstances, and in view of the principle of totality and parity so far as the latter can apply, I am of the view that a Community-based Order is appropriate, in combination with a Youth Justice Centre sentence of 104 days which will be reckoned as already served.
33 Would you please stand up, Mr Gavric?
34 In relation to the count of affray of which you have been found guilty having pleaded guilty to it, you are convicted and I sentence you as follows:
·First, to 104 days’ Youth Justice Centre, which will be reckoned as already served, such that you are not required to serve any period in custody; and
·Second, I am going to with your consent order that you undergo a Community-based Order.
35 So that you might provide an informed consent, I need to explain to you what is proposed with this Community-based Order.
36 It is proposed that for the offence of affray, that is, Count 1, that you be convicted and released on a Community-based Order for a period of two years which will date from today. There are core conditions which attach to every Community-based Order and, in your case, there will be program conditions. You need to listen to what these are because I cannot release you on a Community-based Order unless you consent to them, do you understand?
37 PRISONER: Yes.
38 HER HONOUR: The core conditions are as follows.
39 The first is that you must not commit, whether in or outside Victoria during the period of the order, another offence punishable on conviction by imprisonment. Next, you must report to a specified Community Corrections Centre within two clear working days after the coming into force of the order. Next, you must report to and receive visits from a Community Corrections Officer. You must also notify an Officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change. Next, you may not leave Victoria except with the permission of an Officer at the specified Community Corrections Centre granted either generally or in relation to the particular case
40 And finally, you must obey all lawful instructions and directions of Community Corrections Officers.
41 Now, as I have said, there will also be program conditions. They are that you perform 250 hours of community work over a two year period as directed by the Regional Manager. You must be under the supervision of a Community Corrections Officer. You must undergo assessment and treatment for alcohol or drug addiction, or submit to medical, psychological or psychiatric assessment and treatment, as directed by the Regional Manager, and you must undergo programs to reduce re-offending as directed. Now do you understand the core and programme conditions that I have set out?
42 PRISONER: I do, Your Honour.
43 HER HONOUR: You should also understand, Mr Gavric, that there may be serious consequences for you if your fail to comply with the Community-based Order. If over the next two years you fail without reasonable excuse to comply with any of the conditions of this order as I have explained it to you, or with any requirement of the relevant regulations, you may be charged with an offence of breaching the Community-based Order. The breach could be because you have failed to comply with an administrative requirement of the order, for example, not attending for supervision, or assessment or treatment, or failing to turn up for community work; or it might be breached by you committing other offences punishable on conviction by imprisonment.
44 The breaching charge can be laid at any time within three years of the date on which the breaching conduct occurred. You will be brought back to this court and if the court finds you guilty of the breaching offence, it can fine you and in addition it can vary, confirm, or cancel the Community-based Order. If the Community-based Order is cancelled, the court can deal with you for this original offence as if from the beginning again. If that were to happen you may then face an immediate gaol term. Do you understand all of what might happen if you breach the Community-based Order?
45 PRISONER: I understand, Your Honour.
46 HER HONOUR: Are you willing to enter into the Community-based Order?
47 PRISONER: ' Yes, I am, Your Honour; yes, Your Honour.
48 HER HONOUR: All right.
Sentence49
50 On the charge of affray then, as I have said, in addition to the sentence of 104 days Youth Justice Centre which has been reckoned as already served with conviction, you are released on a Community-based order, the terms and conditions of which I have already set out.
51 If not for your plea of guilty to this charge, I would have sentenced you to five months' Youth Justice Centre.
52 You may come out of the Dock and with the assistance of your counsel, you can sign the Community-based Order, but before you do that, Mr Gavric, I will make the Disposal Order in accordance with the document which has just been handed to me. You may now leave the Dock for the purpose of you signing the document.
53 [CBO signed and acknowledged by offender]
54 HIS HONOUR: Thank you. I have signed the Community-based order and you are now free to leave the court.
55 Are they all the matters, counsel?
56 MR LINDNER: There is whilst I have got no concerns in relation to the Community-based Order, I do have a concern that I should express as far as the first sentence is concerned. As, in my submission, it is ultra viries for this reason. A Youth Justice Centre Order can be made pursuant to s.32 of the Sentencing Act and it applies under sub-s.(1).
57 HER HONOUR: The pre-sentence report has been obtained at the time?
58 MR LINDNER: Well, that is one thing, but it is only justified in respect of a young offender. A young offender is defined in the Sentencing Act as means of offender who at the time of being sentenced is under the age of 21 years. He is over the age of 21 years now. So leaving aside the obtaining a report which is probably another impediment, the fact that he is over 21 years of age probably prohibits that being a proper sentence. The alternative to achieve the same result would probably be that Your Honour does have the power under s.36(2) of the Sentencing Act to impose a Community-based Order in addition to sentencing the offender to a term of imprisonment of not more than three months provided that the sentence of imprisonment is not ordered to be served by way of the Intensive Correction Order in the community, or suspended in whole, or in part. Therefore, it has to be a sentence that is served and can be reckoned as having been served and that would probably be satisfied by a sentence of imprisonment of 104 days.
59 HER HONOUR: Effectively.
60 MS THOMAS: I agree with my friend, but I think it would have to be less than 104 days because it is not more than three months, but I think Your Honour would have to order that he be sentenced to imprisonment for three months and then declare under s.18, 104 days served which is the time that he spent in custody. And s.18 just states that you can reckon any period in custody that he was held in custody, so that would cover detention I would think. I think if Your Honour said 104 days' imprisonment that would be ultra vires also.
61 MR LINDNER: Yes. I agree with that.
62 MS THOMAS: And is equal to three months.
63 HER HONOUR: Well, I would have appreciated this assistance; the submission of the Crown was that it would be time served, as I understand it, and a Community-based Order.
64 MS THOMAS: Yes.
65 HER HONOUR: I am now being told that that is not something that is available.
66 MS THOMAS: Well, it is available if it is expressed as imprisonment, rather than Youth Justice Centre because of the prisoner's age, Your Honour.
67 HER HONOUR: Well, I am not prepared to do that. In the circumstances then given that because of the prisoner's age he is now not a candidate for Youth Justice Centre and I will then in those circumstances vacate my sentencing insofar as I have sentenced the prisoner to Youth Justice Centre for a period of 104 days. I will record that he has served 104 days Youth Justice Centre and if not for his plea of guilty, I would have sentenced him then to five months in gaol.
68 MS THOMAS: If Your Honour pleases.
69 MR LINDNER: If Your Honour pleases.
70 HER HONOUR: We will adjourn.
* Re forfeiture order concerning phone – Crown to seek instructions and clarify position.
*Order signed on 8 July 2011.
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