Director of Public Prosecutions v German

[2017] VCC 33

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01517

DIRECTOR OF PUBLIC PROSECUTIONS

v

KONSTANTIN GERMAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January & 1 February 2017
DATE OF SENTENCE:	2 February 2017
CASE MAY BE CITED AS:	DPP v German
MEDIUM NEUTRAL CITATION:	[2017] VCC 33

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Reckless conduct endangering serious injury - make threat to kill

Legislation Cited:    Sentencing Act 1991

Cases Cited:

Sentence:21 months' imprisonment (less than time served)

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms J. Piggott Mr N. Cescato	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr M. Page Mr T. Danos	Tony Danos Lawyers

HIS HONOUR:

1Konstantin German, you have pleaded guilty to one charge of reckless conduct endangering serious injury and one charge of making a threat to kill. 

-    Reckless conduct endangering serious injury carries a maximum penalty of five years' imprisonment. 

-    Making a threat to kill carries a maximum penalty of ten years' imprisonment.

2You are a few days short of being 63 years old.  At the time of the offending you were aged 60 years. 

3You have no criminal record.

4The circumstances of the offending are as follows.

5By way of background, Mr Alex Doucas, who is the primary victim in this matter, was approximately 41 years old and a practising real estate agent at the time of the offending. 

6You and Mr Doucas were known to each other as you were previously married to his aunt.

7Twenty years earlier Mr Doucas' parents invested approximately $150,000 in a business venture they engaged in with you.  In around 2012-2013, you and Mr Doucas' parents were involved in a large financial dispute in relation to this investment.  This dispute resulted in court proceedings where you were ordered to pay Mr Doucas' parents a large sum of money (approximately $450,000 including court costs).

8You paid approximately $50,000 in an attempt to satisfy the court order and were facing the prospect of bankruptcy.  It is believed this ongoing dispute was the catalyst for the current incidents. 

9From the middle of 2013 until 26 July 2014, a fictitious organisation called ‘Vigilant Fathers of Australia’ sent letters to various members of Mr Doucas' family and to Mr Doucas.  The letters contained details of how Mr Doucas would be targeted as retribution for his parents engaging in court proceedings with you.  In these letters the weapons to be used to target Mr Doucas were detailed, and included photographs of crossbows.

10At the same time the letters were received, properties belonging to Mr Doucas and his parents were subjected to damage, and Mr Doucas' car was vandalised at his work.

11In February 2014, you went to an open-for-inspection which Mr Doucas was conducting in Mill Park.  You went into the property and told Mr Doucas you wanted to talk to him.  At the end of the open-for-inspection you told Mr Doucas that people were after him and that his life was in danger, but you would not tell him who these people were supposed to be.  You did however tell
Mr Doucas that he should convince his parents to go back to court and tell the court that they had lied, no doubt in order to set aside the order against you.

12Mr Doucas subsequently applied for an intervention order against you.  This application was opposed by you.  The final hearing of the intervention order was listed for 15 July 2014 at the Heidelberg Magistrates' Court. 

13Your son, Michael German, was to give evidence against you in support of
Mr Doucas' application.  The evidence to be given by him was in regard to a conversation he had with you during the Christmas period of 2013, when you had asked him to pass on a message to Mr Doucas' parents.

14The message was to the effect that they were to go back to court and indicate that they had been lied to, tricked and/or coerced by their lawyers in the case against you - or their son Alex Doucas would be killed.  You also told Michael words to the effect that you had already engaged people to kill or maim
Alex Doucas.

15Michael had a recording of this conversation with you, in which you confirmed that you were willing to go to prison for a long time and if Mr Doucas' parents continued with the financial dispute they would be made to pay with their son's life.  You were very detailed in your plan, having chosen a crossbow as the weapon of choice for killing Mr Doucas.  Michael was to give this evidence at the final hearing of the intervention order sought by Mr Doucas against you. 

16Eventually, Mr Doucas did not want to place additional strain on the relationship between you and your son Michael, so he withdrew the application for the intervention order a week prior to the hearing. 

17Despite the intervention order being withdrawn, you (who were then living interstate) arrived in Melbourne for the hearing on or about 15 July 2014. 

18On 21 July 2014 you boarded a plane bound for Adelaide.  Whilst in Adelaide, you hired an Apollo campervan and travelled back to Melbourne.

19I turn now to the incident. 

20On Saturday 26 July 2014 at approximately 10 am, Mr Doucas conducted an open-for-inspection at premises in Lorica Avenue, Broadmeadows. 

21At the conclusion of the opening Mr Doucas was putting his belongings in his car when he heard someone approach him from his right side.  He immediately recognised the voice to be yours.

22You demanded that Mr Doucas “get into the car”, but he refused.  You then said to Mr Doucas "If you don't get in the car, I'm going to kill you, I'm going to shoot you.  Get in the car".

23As Mr Doucas backed away from the car and onto the road, he realised you were holding a spear gun with a metal arrow at the end.  It looked like two spear guns taped together.  Mr Doucas was frightened and yelled "Put it down and I'll talk to you".

24You were standing within reach of Mr Doucas when you pointed the spear gun at him.  This conduct is represented by Charge 1, reckless conduct endangering serious injury.

25Mr Doucas instinctively pushed the arrows end of the spear gun upwards before pressing the spear gun to your chest.  He then attempted to take the spear gun away from you, but you refused to let go of the weapon, and you two struggled, with both of you falling to the ground. 

26You still had the spear gun in your hand and Mr Doucas had his left hand on it also.  He quickly pushed himself up and put his left foot on the spear gun and then pushed your head into the ground with his right forearm. 

27Mr Doucas was scared that if he let go and you got hold of the gun that you would shoot him with the spear gun.  Eventually he pushed himself up, and as he did this his foot came off the spear and he kicked you in the stomach.  This made you let go of the gun.  Mr Doucas backed away and yelled out for neighbours to call the police.  At this time Mr Doucas had control of the spear gun, and pointed it upwards whilst he backed away and yelled out for help. 

28You got off the ground and walked towards Mr Doucas, who backed away.  You said to him "I'm going to kill you" as you walked towards him.  This conduct is represented by Charge 2, threat to kill.

29You then produced from your right side a knife with a 15cm-long blade as you continued to walk towards him. 

30Mr Doucas pleaded with you to stop many times, but you continued to advance upon him with the knife pointed towards him the entire time.  He tried to calm you down by saying "Stop and I'll talk to you, stop, stop", but you continued to chase him.  He kept yelling to neighbours to call the police.

31After being pursued by you for about 50 metres, a neighbour called to
Mr Doucas to run into his home.  He immediately ran into the neighbour's home. 

32In response, you returned to the point where you had first approached Mr Doucas, collected a bag you had left and then ran towards Gibson Street, Broadmeadows.

33You were seen getting into a Mazda 626 with personalised plates "KG1954".  The licence plates contained your initials and the year of your birth, and were registered to a previous business of yours.

34A witness yelled out the registration plates to other witnesses who were on the phone to 000 at the time.  Immediately after she did this you turned towards her and said "Watch out, I know where you live", before getting into the car and driving off. 

35Investigators attended the scene a short time later.  The spear gun was test-fired, confirming that it was functional with both arrows penetrating the ground they were fired into. 

36It is not known to where you drove; however what is known is that you travelled back to Adelaide a short time later.

37In the struggle, Mr Doucas sustained soreness to his right shoulder and left leg.  He also engaged in counselling to deal with your assault upon him. 

38On 28 July 2014, you boarded a plane from Adelaide to Melbourne.  You were arrested at Tullamarine Airport, Melbourne, at 12.20 pm, and taken to the Broadmeadows Police Complex. 

39Police interviewed you upon your arrest, with you denying all allegations put to you - including your presence during the incident.  You indicated the group known to you as the ‘Vigilante Fathers Group’ were targeting Mr Doucas, but refused to divulge your links, ties, or any information regarding the people or the organisation that you said were targeting him. 

40You also denied being in Melbourne at the time the offence was committed.  You said that you were travelling around in a van with a companion you refused to name.

41Call data indicates that between 23 July 2014 and 27 July 2014, your mobile phone was in close proximity to Thomastown, Yarrambat, South Morang and Lalor West telephone towers.

42At the end of the interview, a physical examination of you was conducted, and investigators observed fresh scratches and indents to your right leg as well as red marks on the left upper side of your back.

43You admitted that you had purchased spear guns on two separate occasions, the most recent being on 15 July 2014, indicating that you gave the spear guns to your son, Michael.  You said that you told Michael to tell Doucas that " … these people [meaning ‘Vigilant Fathers of Australia’] can pick him off anytime they want and he needs to understand.  It's not me, right?  And you know, take it to him, show him - show him the deadly effect".

44You said that you showed Michael how to use the weapon before telling him to speak to Mr Doucas.  You then told Michael to tell Mr Doucas that "this is very, very serious.  You need to understand your life really is in danger from some very scary people".

45Your son Michael denied having seen you in July 2014, and dismissed your statements as false.  Michael said that the last time he saw you was during the Christmas period of 2013-2014.  Michael also denies that you had ever provided him with, or shown him, a spear gun.

46Subsequent to the assault, another letter from the ‘Vigilant Fathers of Australia’ was received by Mr Doucas' parents and other family members containing further threats.  It is now accepted by you that there was no such organisation as ‘Vigilant Fathers of Australia’, and that this was a fiction constructed by you.

47On 31 January 2017, when facing trial, you pleaded guilty to the current charges.

48I now turn to your personal circumstances. 

49As I noted earlier, you are now just a few days short of 63 and at the time of the offending you were aged 60 years.  You have no prior history of offending against the criminal law.  You are well-educated, having qualifications and much experience as a mechanical engineer working for major companies, initially as an employee and later as a consultant.

50You were married and you maintained that relationship for over 20 years, and you have three adult children.  Unfortunately the relationship with your wife deteriorated, your wife and the children left you in 2008 and your marriage ended in a bitterly-fought divorce. 

51As a result of those proceedings and the subsequent events relating to the matters now before me, the relationship with your children has also irrevocably broken down.  You now intend to return to Perth.

52Your friend from your university days, Mr Ramsay, has provided a character reference which attests to your commitment to work and family over the years and that the current offending is out of character as he has witnessed it.

53Following your arrest on 28 July 2014, you remained in custody until you were granted bail on 28 June 2016.  Your time in custody included five weeks in 23-hour lockdown conditions due to prison riot.

54Your behaviour on the occasion of this offending can only be regarded as very serious.  As has been eloquently indicated in each of the victim impact statements, the emotional and further consequences to victims can be devastating and long-lasting from such experiences. 

55This was no doubt a terrifying experience for the primary victim.  Your confrontation involved pointing the loaded, double spear gun at the victim, then later threatening to kill and advancing towards the same victim with a knife.  The conduct took place in public, in a suburban street in daylight and was preceded by careful planning and other acts of intimidation and threats over an extended period.

56The context reflects a complete loss of rational control, seeking vengeance or retribution following a disappointing court result.  The circumstances reflect a serious example of each offence.  Principles of denunciation and general deterrence are important and, despite the fact that this is your first instance of offending, because of the particular circumstances some emphasis on specific deterrence also remains a relevant sentencing consideration.

57In mitigation, I take into account the submissions of your counsel, and in particular the following:

·     your pleas of guilty, both for the utilitarian value that they represent, and also some expression of remorse.  Whilst the process in proceeding to a plea of guilty was quite protracted, you were facing much more serious charges at the initial stage, including a charge of attempted murder, you were self-represented for a period in interlocutory proceedings and the final indictment also reflected a significant reduction in the charges on which you were originally indicted;

·     your lack of any previous offending against the criminal law;

·     your education and work record as an indication of your prospects of rehabilitation;

·     your otherwise good character, as attested to by Mr Ramsay; and

·     your time spent in remand custody, which I accept was harder than usual because of “lockdown”, and in fact the time served actually exceeds the period for which you will be sentenced on these charges.

58Mr German, could you please now stand.

59On Charge 1 of reckless conduct endangering serious injury, you are convicted and sentenced to 18 months' imprisonment.

60On Charge 2 of threat to kill, you are convicted and sentenced to 6 months' imprisonment.

61Charge 1 is the base sentence.  I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  I note in this respect that whilst this charge arises out of a close temporal connection with Charge 1, it is distinguished by the threat to kill having commenced after the removal from you of the spear gun and the production by you of a new weapon and further advance towards the victim.

62The total effective sentence is 21 months' imprisonment. 

63The sentence starts today. 

64As to the term of imprisonment, you were remanded on 28 July 2014 and granted bail on 28 June 2016, so pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 702 days (which is less than one month short of two years) be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

65I note that since the pre-sentence detention exceeds the term of imprisonment, it is my intention by the sentence that I have imposed that Mr German not be taken into custody.  The term of imprisonment has actually been served by the taking into account of the pre-sentence detention.  Mr Custody Officer, do you understand that?  You have to say yes if you do understand it.  Do you understand what I am saying?  I am saying the sentence of imprisonment that I have imposed is less than the actual time already served in custody.  So although there is a sentence of imprisonment of the term I have indicated,
Mr German is entitled to be released forthwith.

66CUSTODY OFFICER:   Yes.    

67HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed on Charges 1 and 2 on the indictment is four years' imprisonment with a minimum term of three years to be served before eligibility for parole.

68At the plea hearing the prosecution sought a disposal order to which you consented, and I have made that order today.  Are there any other matters from either counsel?

69COUNSEL:  No Your Honour.

70HIS HONOUR:  You may be seated, Mr German.  Very well, if there are no further matters Mr German, you have been sentenced, the bail finishes on that sentencing and you are free to be released from the dock.

71OFFENDER:  There is a surety I am concerned about.  (Indistinct) ‑ ‑ ‑

72HIS HONOUR:  Yes, your solicitor will sort that out with you.  That can all be arranged downstairs with the registrar.  You can leave the dock now, sir.  Just take a seat in court, if you would.

73There is something I might mention to you, if I may.  Can you stand up for a moment?  This is something you can take or leave, it is a speculation on my part.  But this sort of bizarre conduct reflects something perhaps a little deeper in your psyche that you might need to address.  You have been through a very significant divorce proceeding, no doubt very emotionally upsetting.  And contrasted with your previous conduct, this is really bizarre conduct that you engaged in.  And you would be wise, I think, to have it professionally considered in some sort of counselling, so that you can deal with whatever is lying within you that caused this sort of bizarre and uncharacteristic behaviour.  Anyway, that is a comment on my part, it is not part of the sentence, and it may be entirely irrelevant, but that is an observation from my experience.

74OFFENDER:  I appreciate it, Your Honour.

75HIS HONOUR:  So I do not want you to be in a position where if there is some lurking difficulty within you, that you find yourself doing something silly again.  Because you do not need to be in a place like this.  All right, 10 o'clock tomorrow.

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