Director of Public Prosecutions v Getaj
[2023] VCC 1925
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00653
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARBEN GETAJ |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2023 | |
DATE OF SENTENCE: | 18 October 2023 | |
CASE MAY BE CITED AS: | DPP v Getaj | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1925 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – common law assault – theft of a motor vehicle – failed to stop vehicle on police direction – careless driving – state false name and address
Sentence:Convicted and sentenced to five years and eight months imprisonment with a non-parole period of three years and six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N Burnett | The Director of the Office of Public Prosecutions |
| For the Accused | Ms K Ballard | Emma Turnbull Lawyers |
HIS HONOUR:
1Arben Getaj, on 4 October 2023 at the County Court here in Melbourne, you pleaded guilty to the following charges on indictment no. N12130364:
Charge 1, aggravated burglary. This charge has a maximum penalty of
25 years' imprisonment.
Charge 2, common law assault. This charge has a maximum penalty of five years' imprisonment.
Charge 3, theft of a motor car. This charge has a maximum penalty of 10 years' imprisonment.
2
You consented to a number of related summary charges been heard in this court the same time as your plea hearing. You pleaded guilty to the following
four related summary charges:
Charge 6, failed to stop a vehicle on police direction, which this charge has a maximum penalty of six months' imprisonment.
Charge 8, careless driving. This charge has a maximum penalty of
25 penalty units, in your case due to a prior conviction for this offence.
Charge 9, state a false name and address. This charge has a maximum penalty of five penalty units, and
Charge 10, committing an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment.
3You admitted your prior criminal history.
4Your Victorian criminal history commenced in January 2012 at Sunshine. You have a total of six court appearances at the Sunshine Magistrates' Court between January 2012 and September 2016. Your offending includes theft of a motor car, drug offences, damage to property, threats to inflict injury, assault, weapons charges, dangerous driving and other driving related offences. You have received terms of imprisonment, fines and community corrections orders as penalties.
5In February 2018, in the District Court of South Australia, you were sentenced to four years and 10 months with two years and nine month non-parole period for dangerous driving and conduct endangering life. You had been back in Victoria for five months after you were released from that term of imprisonment when this offending occurred. You have been on remand for 351 days in relation to these charges.
The circumstances of your offending
6
The prosecutor tendered a Summary of Prosecution Opening on Plea which was dated 14 September 2023, that was Exhibit “A”. The opening was read into
the record of the court.
7In October 2022, you were 32 years of age and living in Hoppers Crossing. You had met Billie Jean Davey through a mutual friend. You were seeing one another for a short period of time prior to the offending which brings you to this court.
8On 2 October 2022, at about 5.30 pm, Ms Davey dropped you off at your residential home as she was going to return home and take her auntie to a church service at 6 pm. Shortly after that, you called Ms Davey and told her to be ready in 10 minutes. She told you that she was taking her auntie to church and hung up the phone. At approximately 5.50 pm, Ms Davey was in the bedroom of her home, when she heard someone enter the house. She walked into the hallway and saw you walking towards her acting erratically and saying that you needed to get something from her vehicle.
9Ms Davey was feeling concerned and nervous and walked outside and opened her vehicle to allow you to get what you wanted from it. You were looking through the vehicle and she went back inside the house and locked the door.
10You then knocked on the front door and demanded Ms Davey to open it. Ms Davey asked you to leave the address. You had taken possession of a black-handled axe from the victim’s vehicle. You then banged on the door with the axe while screaming threats and abuse towards Ms Davey. Ms Davey again told you to leave, so you began smashing a glass panel in the front door with the axe in order to gain entry to the house. You gained entry via the smashed glass and confronted Ms Davey inside the house. That is the aggravated burglary charge.
11You struck at Ms Davey with the axe to her left shoulder, her left arm, but did not physically contact her neck, but the axe got caught up in Ms Davey's hoodie, causing it to tear. That is the common law charge of assault, which is Charge 2 on the indictment.
12Ms Davey was then dragged to the ground by you and whilst on the ground you have grabbed the car keys from her hand. You then walked out of the house, smashed a window in Ms Davey's car with the axe, got into the vehicle which was a black 2005 BMW and drove it away. That is the theft of a motor car.
13The neighbours had called the police. Police observed Ms Davey's vehicle on their way, travelling at a fast rate on Hogans Road in Hoppers Crossing. Police attempted to intercept the vehicle but it increased its speed and crossed onto the incorrect side of Hogans Road, putting other car users at risk. That is Charge 6, failing to stop at the direction of the police.
14Police disengaged the chase and lost sight of the vehicle as it drove east along Hogans Road towards Morris Road in Hoppers Crossing. Police ultimately arrived at Ms Davey’s house in Hoppers Crossing and obtained an account of the incident from her which was recorded on body worn camera.
15At approximately 6.20 pm, witnesses advised police that the stolen BMW had been involved in a single vehicle collision on Derrimut Road in Werribee outside an address of 336 Derrimut Road, Werribee. That was the charge of careless driving a vehicle, Charge 8.
16
The witnesses stated that the male driver of the vehicle had run off down
Bindowan Drive in Hoppers Crossing and was wearing a red/maroon tracksuit pants and a white shirt. Police then attended the collision scene and secured the vehicle.
17The vehicle was taken away for forensic examination. The police cordoned off the area, and attempted to locate you. At about 6.40 pm, police sighted you working along Virgilia Drive in Hoppers Crossing, some 400 metres from the collision scene. You were stopped as you were attempting to get into a silver Toyota HiLux Utility with a housemate and flee the area. You provided the police with a false name of Ben Getaj, and a date of birth 24 February 1988. And that is the charge of a false name and address which is Charge 9.
18
You were then arrested. At the time of your arrest, you were wearing a maroon tracksuit pants and a white shirt. You were transported to Werribee police station for interview. The Victoria Police Canine Squad also attended the collision of the scene. The dog tracked your scent from Ms Davey's vehicle to a drainpipe near
13 Bindowan Drive in Hoppers Crossingwhere the black-handled axe and the keys to Ms Davey's car were found.
19At 9.30 pm, the record of interview was conducted with you by police. During the interview you denied attending at Ms Davey’s residence in Hoppers Crossing on 2 October 2022. You denied stealing and driving the car or being present inside Ms Davey's vehicle.
20You gave an alibi and stated you were smoking tobacco with a friend named ‘Amraj’ in Hoppers Crossing when the incident occurred. You could not provide Amraj's last name, phone number or his date of birth or age. Further evidence was put to you, and you stated you got the address of Mr Amraj incorrect. Clearly the alibi was rubbish.
21The police had made enquiries about you and revealed that you had one outstanding warrant for failing to appear on bail and you were on bail for theft and possession of methylamphetamine. That is the charge of committing an offence whilst on bail.
Your personal circumstances
22You are 33 years old, soon to turn 34. You are the youngest child of a sibship of five children. Your parents migrated from Kosovo. Your father John, worked as a baker and remained a constant feature in your life until the breakdown of your parents' marriage when you were approximately 20 years of age. Your father has returned to Kosovo. Your mother still lives here in Australia and continues to contact you whilst you're in custody. You were also supported by your sister Linda, who now resides in Israel. At the time of your initial plea, her life would have been okay, since then of course, things have changed dramatically for her and you now fear for her wellbeing over in Israel, as does your mother.
23
Your other siblings have nothing to do with you or you with them. You grew up in the St Albans area, and attended primary school and high school in the local area to Year 10 level. You were expelled from Kings Park Secondary College at
Year 9, and moved onto Deer Park Secondary College where you completed
Year 10.
24At age 13, you commence using cannabis. At the age of 15 your oldest sister, Drita, different from the one who lives in Israel, introduced you to methylamphetamine use, and as they say in the classics, “the rest is history”. You have continued to use methylamphetamine since then.
25
After you left school, you worked as a labourer, and became skilled in plastering and timber work. You also worked in the family business when it was running. Your drug addiction led you to homelessness and subsequent criminal activity.
You have had short terms of imprisonment.
26In 2016, you were injured as a result of an attack on you by a group of people. You were injured when you were hit with a machete. You had surgery to your left hand to repair tendons and nerves that had been severed in that attack. You report that you have pain in your hand still and suffer from PTSD as a result of that assault. Given your experience in 2016, it is inexplicable that you would resort to the use of an axe in the course of your offending in this instance against a person with whom you had formed some relationship.
27In 2017, you left Victoria to go to South Australia. You offended in South Australia and spent most of your time in that state, in custody. You returned to Victoria in May 2022. Your family did not welcome you with the open arms that you expected, and you continued with your drug use leading to the present offending.
28
For the purposes of this plea hearing you have been examined by
Marlese Bovenkerk, a forensic psychologist. Ms Bovenkerk prepared a report dated 13 September 2023 and that was Exhibit 2. You reported to her that your parents were harsh disciplinarians and as parents were “going through the motions” as parents, when it came to your upbringing as the youngest child. Whilst you report a tough upbringing at home, it is clear you have received comfort, security and nurture in the family home when you were growing up. It is your drug use that has brought your life into the spiral of homelessness and social deficit and repeated contact with the criminal justice system.
29You have been assessed by Ms Bovenkerk as having a moderately severe major depressive disorder. You have mild anxiety symptoms. You have a diagnosis of moderate levels of symptoms of PTSD. Ms Bovenkerk assesses you as a high risk of general reoffending. Ms Bovenkerk recommends that you have sustained and directed drug rehabilitation.
30
On the first day of your plea hearing, which was 4 October 2023, it was submitted on your behalf that Ms Bovenkerk's report at paragraph 125 supports the proposition that your mental health condition affects or moderates your moral culpability for this offending. A clarification report was sought from Ms Bovenkerk. In her addendum report dated 13 October 2023, which is now Exhibit 2A,
Ms Bovenkerk's opinion is that she is unable to say that your mental health condition affected your decision to offend in these matters. In short, limb one of Verdins case has no application to your sentencing considerations.
31I do accept that your underlying mental health condition will make your time in custody more burdensome than a prisoner of normal mental health. I take that matter into account when finalising your overall sentence.
32You have served 351 days pre-sentence detention. You have also served a 30 day sentence for offending which occurred prior to these offences.
33You have a job in the prison preparing lunches for fellow prisoners. You have engaged in short courses, whilst on remand to address your drug addiction and lifestyle choices including housing and work.
Sentencing considerations
34The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have a regard to a range of factors such as the seriousness of your offending and your culpability for it and your personal circumstances.
35I am also required to balance this with the community in denouncing your criminal conduct with the interest of the community to seek and to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
36I am also required to take into account current sentencing practices, in fixing your sentence. That enquiry's directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those cases at that time. I have considered both the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices, is but one of the considerations I have to take into account in this sentencing process.
37The only appropriate sentence for all of the offending is a term of imprisonment with a non-parole period to encourage and control your rehabilitation after you have completed your time in custody.
38You have pleaded guilty to these charges. Whilst the plea was finalised after negotiations, it is described as an early plea. It has obviated a need for your victim to relive the events in the form of giving evidence in court.
39Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending.
40Your plea also allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
41Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your part.
42Your pleas of guilty also adds a further utilitarian value because of the plea is given at times due to the COVID-19 pandemic, you have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. You have in effect, allowed for the court processes to take place with the minimum of disruption.
43The offending by you is serious in respect of each charge, although it is within a compressed timeframe, the objective seriousness is indicated by the following matters:
(i) The maximum penalties set down by Parliament in respect of the offences, in the case of aggravated burglary is 25 years. In the case of the common law assault charge, it is five years imprisonment. In the case of theft of a motor car it is 10 years.
(ii) You knew the victim and you relied on her trust of you to initially allow you into her home.
(iii) You used a weapon, in this case an axe which was a photographed in Exhibit “B” to smash your way into the premises.
(iv) You used the axe to strike at your victim fortunately only managing to get it tangled up in her hoodie.
(v) Once on the ground, you have dragged your victim before snatching the car keys from her.
(vi) You gratuitously smashed the window of the victim's car before driving off with it, by using those car keys.
(vii) Your driving of the vehicle was of such a nature that pursuing police avoided the chase.
(viii) Your driving of a stolen vehicle finished when you crashed it; and
(ix) At the time of this offending, you were on bail for other offending.
44I take into account your personal circumstances as set out earlier in these reasons. I accept your mental health condition will make your time in custody more burdensome than other prisoners without those mental health problems.
45You have a prior relevant criminal history. You have had a long-term drug addiction and you were under the influence of methylamphetamine at the time of these offences. You do have the ability to engage in paid employment and have done so at a time when you are not in prison. I assess your prospects of rehabilitation as guarded.
46If you engage in illicit drug use you will reoffend with the inevitable consequences of longer and longer sentences with shorter and shorter periods of freedom in between those sentences. Your criminal history points to such a conclusion. The only way you can rehabilitate is that you just stop using drugs.
47I have cumulated some parts of the individual sentences to reflect the separate criminal offending but have moderated the cumulation so as not to impose a crushing sentence upon you and breach the sentencing principle of totality.
48The most significant sentencing consideration are general deterrence in respect of the aggravated burglary. The considerations of specific deterrence, just punishment, denunciation and protection of the community are also important in the overall sentencing synthesis in your case.
49Would you stand please?
In respect of Charge 1, you are convicted and sentenced to four years' imprisonment. That is the base sentence.
In respect of Charge 2, you are convicted and sentenced to 18 months.
In respect of Charge 3, you are convicted and sentenced to one year imprisonment.
In the related summary charges in respect of Charge 6, you are convicted and sentenced to three months' imprisonment.
In respect of Charge 8, you are convicted and fined $500.
In respect of Charge 9, you are convicted and fined $100.
In respect of Charge 10, you are convicted and sentenced to one month imprisonment.
50The cumulations are as follows; the base sentence is the four years for the aggravated burglary. Cumulated upon that and upon one another are the following: 12 months of the sentence in Charge 2, six months of the sentence in Charge 3; two months of the sentence in related summary Charge 6.
51That is a total effective sentence of five years and eight months' imprisonment. I fix a non-parole period of three years and six months' imprisonment.
52But for your plea of guilty, I would have sentenced you to eight years and three months, with a non-parole period of five years and six months.
53I declare that you have served 351 days pre-sentence detention not including this day in respect of these sentences.
54I have signed the forfeiture order as sought by the prosecution. And on indictment Charge 3 and related summary Charge 6, all licences are cancelled and you are disqualified for a period of 12 months from 18 October 2023, that is today.
55HIS HONOUR: So, Mr Getaj, effectively what you're facing is five years and eight months on the top, three years and six months on the bottom. You've served 351 days. You understand?
56OFFENDER: (No audible response.)
57HIS HONOUR: Yep, all right, thank you, you can remove the prisoner.
58COUNSEL: As Your Honour pleases.
59HIS HONOUR: Counsel, thank you for your assistance in this matter and being able to come back and deal with this now. Thank you.
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