Director of Public Prosecutions v Ivanusic

[2020] VCC 552

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01709

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL IVANUSIC

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January and 20 April 2020
DATE OF SENTENCE:	1 May 2020
CASE MAY BE CITED AS:	DPP v Ivanusic
MEDIUM NEUTRAL CITATION:	[2020] VCC 552

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:            Sentence — dangerous or negligent driving while pursued by police — theft — handling stolen goods — recklessly exposing an emergency worker to risk by driving — conduct endangering persons — possession of a drug of dependence — driving unregistered vehicle while disqualified — fraudulently using registration plates — using an unregistered vehicle — speeding — plea of guilty — relevant criminal history — drug and alcohol abuse — driver’s licence cancellation

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of 4 years and 2 months, with a non-parole period of 3 years

Section 6AAA declaration: 5.5 years with non-parole period of 4.5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Lee	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M Page	Leanne Warren & Associates
(For Plea)
Ms A Addamo
(For Sentence)

HER HONOUR:

1Michael Ivanusic, you have pleaded guilty to one charge of dangerous or negligent driving while being pursued by the police, for which the maximum penalty is three years’ imprisonment; two charges of theft, for which the maximum penalty is 10 years’ imprisonment; four charges of handling stolen goods, for which the maximum penalty is 15 years’ imprisonment; one charge of recklessly exposing an emergency worker to risk by driving, for which the maximum penalty is 10 years’ imprisonment; one charge of conduct endangering persons, for which the maximum penalty is five years’ imprisonment; and two charges of possession of a drug of dependence, for which the maximum penalty is 30 penalty units or one year imprisonment.

2You have also pleaded guilty to a number of summary charges in respect of seven occasions when you were driving an unregistered vehicle while disqualified, and which was bearing false registration plates. On five of these occasions, you were speeding. The maximum penalty for drive while disqualified is 240 penalty units or two years’ imprisonment; for fraudulently using registration plates, 10 penalty units or two months’ imprisonment; for using an unregistered vehicle, 25 penalty units for a first offence and 50 penalty units for a subsequent offence; and finally, for speeding, between 10 and 20 penalty units depending on the excess speed.

3In brief, the circumstances of your offending were as follows.

4At the time of your offending, you had no fixed address or accommodation and you were living out of your vehicle or sleeping at associates’ addresses.

5You were disqualified from driving a motor vehicle on 12 October 2018 at the Dandenong Magistrates’ Court. Your driver’s licence was cancelled, and you were disqualified from obtaining any licence or permit under the Road Safety Act 1986 (Vic) for a period of 28 months.

6You owned an unregistered 2002 grey Holden Commodore sedan at the time of the offending, which you had purchased through the Gumtree website for $250 in late September 2018.

7I turn now to the specific circumstances of your offending.

8In what I will call ‘incident 1’, occurring on 8 January 2019 and giving rise to charge 1 on the indictment (dangerous driving while being pursued by police), and summary offences of driving while disqualified, fraudulent use of registration plates, and use of an unregistered vehicle, at approximately 1:50am on 8 January 2019, police attended the BP service station outbound on Eastlink, Scoresby for a routine patrol. Police observed you driving your grey Holden Commodore bearing no front registration plate.

9When you saw police, you drove into a parking bay. Police drove towards your vehicle intending to conduct an intercept. After momentarily stopping in a central car park bay, you then quickly accelerated and took off through the petrol station southbound onto the Eastlink freeway. Police followed you. You then accelerated your vehicle to in excess of 140 km/h on Eastlink. You then swerved onto the Wellington Road off-ramp and approached the Wellington Road intersection, which was showing a red-light signal. You braked heavily and tyre smoke was seen coming from your left rear tyre. You then accelerated through the red-light intersection and travelled west on Wellington Road.

10You reached speeds in excess of 150 km/h on Wellington Road, which is an 80 km/h speed zone, in your attempt to evade police. You were observed overtaking several vehicles at high speed while manoeuvring through lanes of traffic on Wellington Road, Mulgrave.

11Police subsequently lost sight of you, even when travelling at speeds in excess of 120 km/h in the police vehicle. You were identified from CCTV footage obtained from the service station. The CCTV footage also revealed that your car had the rear registration plate ‘1NY 9LM’. VicRoads’ database revealed that this registration belonged to a silver 2002 Peugeot 206 sedan belonging to an associate of yours.

12‘Incident 2’, on 11 January 2019, gives rise to the charge of theft and the related summary offences, again, of drive while disqualified, fraudulently use registration plates, use of an unregistered vehicle, and speeding. On 11 January 2019 at approximately 5:13pm, you drove to the Woolworths Caltex petrol station at 1180 Stud Road, Rowville. You were again driving your unregistered grey Holden Commodore sedan. CCTV footage from the Woolworths Caltex service station captures you filling your vehicle with unleaded petrol to the value of $60. You then drove off without paying. Later that day, at 9:15pm, you were travelling in a southbound direction on the Eastlink Dandenong bypass bridge at a speed of 113 km/h in a 100 km/h zone.

13The third incident, on 12 January 2019, has summary offences only — the same three: drive while disqualified, fraudulently use registration plates, and use of an unregistered vehicle. On 12 January 2019 at 7:15am, on Astor Lane, Officer, you were captured on CCTV footage from a residential address again driving your unregistered grey Holden Commodore sedan bearing registration plates ‘1NY 9LM’. CCTV footage captures you driving and getting out of the driver’s door of your grey Holden Commodore and then unscrewing the false rear registration plates from your vehicle and placing them inside, then spray painting the front left alloy wheel of your car.

14‘Incident 4’ covers between-dates of 18 January to 22 January 2019. The charges on the indictment relevant to this incident are charges 3 and 4, handle stolen goods and theft, and there are four related summary charges of driving while disqualified, fraudulently using registration plates, use of an unregistered vehicle, and speeding.

15Between 18 January and 21 January 2019, two registration plates belonging to a white Mazda 3 were stolen. The victim, Joel Richardson, reported the registration plates as stolen to the police.

16At approximately 4:17pm on Tuesday 22 January 2019, you drove to the Caltex service station at 190 Wellington Road, Clayton. You were driving your unregistered grey Holden Commodore sedan bearing the stolen registration plates ‘1HR 8ML’. These were the registration plates stolen from Mr Richardson. You exited your vehicle and then filled up your vehicle with unleaded petrol to the value of $65. You then drove off without making payment. The incident was captured on CCTV footage from the service station.

17At 4:30pm the same day, in your unregistered Holden Commodore sedan bearing the stolen registration plates ‘1HR 8NL’, you were travelling in a south-eastbound direction along the Princes Highway at a detected speed of 109 km/h in an 80 km/h zone area.

18We are now at ‘incident 5’ on 5 February 2019. The indictment charge is charge 5, handle or receive stolen goods, and the related summary offences are drive while disqualified, fraudulent use of number plates plates, use of an unregistered vehicle, and speeding. At approximately 8:30am on Tuesday 5 February 2019, the victim, Christine Hansen, parked her vehicle, a silver Commodore sedan, registration ‘UBU 168’, in a car park in Glen Waverley. She returned to her vehicle at 4:30pm and noticed both the front and rear registration plates had been stolen.

19At 12:55pm that day, you drove to the BP service station inbound on Eastlink, Scoresby, driving again your unregistered Holden Commodore sedan. It was bearing the number plates stolen from Ms Hansen, ‘UBU 168’. CCTV footage has captured you driving your vehicle and entering the store to purchase items.

20Later that day, at 1:51pm at Rowville, you drove your unregistered grey Holden Commodore sedan bearing the stolen registration plates in a southbound direction on the Eastlink at the Wellington Road bridge at a detected speed of 135 km/h in a 100 km/h speed limit area.

21Now turning to ‘incident 6’, which occurred on 9 February 2019, the indictable charges 6 and 7, recklessly exposing a police officer to risk and handle stolen goods, and the four summary offences: drive while disqualified, fraudulent use of number plates, use of an unregistered vehicle, and speeding.

22At Chadstone at 3:27pm on Saturday 9 February 2019, you were driving your unregistered Commodore sedan bearing stolen number plates ‘UBU 168’. You were travelling in a southbound direction along Warrigal Road at a detected speed of 50 km/h in a 40 km/h speed limit area. At approximately 8:45pm on Saturday 9 February 2019, police were patrolling, looking for your vehicle. Police located your vehicle parked on Colenso Street, Carrum. It was parked facing the police vehicle.  A black Audi sedan with three people inside was parked directly behind your vehicle. You were one of the people seated in the black Audi.

23Police activated the flashing red and blue emergency lights upon stepping out of their vehicle. You got out of the black Audi sedan through the rear right door and walked towards your vehicle. Police immediately recognised you and, upon being recognised by police, you began to sprint towards your vehicle. Police ran towards you yelling, ‘Stop, police’, but you ignored the direction of the police. You managed to get to your vehicle and get into the driver’s seat and lock the door. A police officer, Leading Senior Constable Robert Manks, then ran back to the marked police vehicle with the intention of getting into the driver’s seat and manoeuvring his vehicle in front of your vehicle in an attempt to stop you from leaving or from fleeing.

24You then started your vehicle and drove directly towards Leading Senior Constable Manks, at the same time rapidly accelerating, with Leading Senior Constable Manks having to take evasive action to avoid being hit. Leading Senior Constable Manks immediately closed the driver’s door to his police vehicle and flattened his body hard against the police vehicle in an attempt to avoid being struck by your vehicle. Leading Senior Constable Manks believed your vehicle missed him by only around 2 cm.

25The police did not follow your vehicle, but rather spoke to the two remaining occupants of the black Audi, who stated that your name was Michael and provided the police your phone number.

26Turning now to ‘incident 7’, 12 and 13 February 2019, and the indicted charges are 8 to 11, which are reckless conduct endangering serious injury, handle or receive stolen goods, possess methamphetamine and possess prescription drugs. There are three related summary offences: drive while disqualified, fraudulent use of registration plates, and use of an unregistered vehicle.

27On Tuesday 12 February 2019, police established a location-based search, a tracking application, on your mobile. On Wednesday 13 February 2019 at approximately 3:00am, police set up this application at the Knox police station. An officer was tasked to search for your mobile phone signal at five to 10‑minute intervals while police patrolled nominated locations.

28At approximately 3:30am, police were patrolling the Mulgrave and Clayton suburbs in an attempt to locate your unregistered grey Holden Commodore. At approximately 4:00am, police observed your vehicle parked outside the main entrance doors at the BP service station at the corner of Wellington Road and Springvale Road, Mulgrave. CCTV footage from the BP service station captures you driving and remaining in your vehicle as your female associate enters the service station.

29Upon the police vehicle conducting a U-turn, you drove at a fast rate of speed onto Wellington Road in an easterly direction and made a U-turn on Wellington Road and drove at a fast rate of speed in a westerly direction.

30Police immediately recognised you and followed you. You began accelerating at a fast rate of speed and rapidly gained distance from the police van. The van was travelling in excess of 120 km/h in an 80 km/h zone but, notwithstanding this, your vehicle was gaining distance. You were observed to have a female in the front passenger seat of the vehicle.

31You were observed by police to travel at excessive speeds in an attempt to evade police driving along Wellington Road, doing a right-hand turn onto the Princes Highway, then a right-hand turn against a red-light traffic signal at Huntingdale Road and a right-hand turn onto the Monash Freeway. Police requested the assistance of the air wing helicopter on Huntingdale Road prior to getting onto the Monash Freeway. The police air wing helicopter located your vehicle and began to follow it.

32You were observed by the police air wing helicopter to park your vehicle on Highlands Avenue, Oakleigh East. You and your female associate were observed to walk away from your vehicle and run towards Macrina Street, Oakleigh East.

33You were arrested outside 24A Macrina Street, Oakleigh East. Your female associate, Shannon Maywood, was arrested for unrelated matters.

34A search of your satchel carry bag revealed drug paraphernalia, including three ice pipes and a plastic straw cut at a 45-degree angle. Also located inside a small snap-lock bag in your satchel were five half-tablets of Xanax. Police also located a car key belonging to your grey Holden Commodore sedan from inside your satchel.

35Police attended the location of your vehicle on Highlands Avenue, Oakleigh, with a search revealing a snap-lock bag containing a white crystal substance, believed to be methylamphetamine, on the front driver’s footwell. The methylamphetamine, including the small snap-lock bag, was weighed at 2.9 g.

36Your vehicle was displaying registration plates ‘SVR 269’ at the front and rear. Enquiries with the owner of the registration plates revealed that these registration plates were in fact stolen between 8 and 11 February 2019. You were subsequently conveyed to the Knox police station for a recorded interview and gave ‘no comment’ answers to the allegations.

37You pleaded guilty to the charges on the indictment and the related summary offences on 23 August 2019, which was the day on which a contested committal was scheduled. You entered your plea before any witnesses were called to give evidence. This is an early plea; it has utilitarian value in that it has spared the witnesses and the community the trauma and cost associated with a trial. I also accept that it is indicative of remorse on your part.

38You have a relevant criminal history for driving and drug offences, although not of comparable seriousness to the offending for which you now fall to be sentenced. You have previously served a sentence of imprisonment of six months, when you were sentenced at the Ringwood Magistrates’ Court on 28 August 2016 for driving while disqualified, failing to answer bail, possessing methylamphetamine, handling stolen goods and other driving-related matters. Before this, you had been sentenced to an Intensive Corrections Order and to a number of community-based orders, which you regularly breached. Your criminal record discloses that drug and alcohol treatment conditions were often a feature in court-imposed orders.

39I turn now to your personal circumstances. You were born in February 1984. You are now therefore 36 years old. A psychiatric report was prepared by Dr Sachin Jindal and was tendered on your behalf at your plea. You spoke with Dr Jindal on 15 January 2020 and I refer to this report in outlining your personal circumstances, as well as to a letter to the Court from your sister, Michaela Byrne, and to the submissions made by your counsel, Mr Page.

40Your parents were from Yugoslavia. Your relationship with your father was always difficult. You told Dr Jindal that your father was violent and abusive. Your sister, on the other hand, says that your childhood was loving and happy until you were around 12 years old and your mother died of a severe asthma attack. Only three to four years later, your father died from pancreatic cancer and you and your sister were left without parents. You had little or no inheritance from your family, and no family members offered to care for you and your sister. Instead, you were both placed in children’s homes and, to make matters worse, in different homes. You were separated from your sister for many years.

41You began using drugs when your mother died, and you began struggling at school and misbehaving. When your father died, you could no longer focus at school, where you were also experiencing bullying. You ended up leaving school in year 9. Thereafter, you have had a difficult life. You enjoyed a period of relative stability between 2009 and 2014 when you were in a relationship with a woman who was not a drug user, during which time you held down a stable job as a labourer. But, aside from this time, your life has been marred by drug and alcohol use and homelessness.

42You told Dr Jindal that you started using cannabis at 12 and amphetamines at 13. You told him you have always been a heavy drinker. You said that, after your parents passed away, your drug use escalated and you used at times LSD, cocaine and heroin between the ages of 15 and 18. You said, more recently, you were using about 1 g of methamphetamine a day and that this had been your situation for many years.

43You told Dr Jindal that you have been in many fights since your youth. You said you have experienced head injury and loss of consciousness. On the basis of your report to Dr Jindal of episodes of head injury and loss of consciousness, your counsel sought and obtained a neuropsychological report from Dr Sarah Fratti, a senior clinical neuropsychologist. Ultimately, however, Dr Fratti’s report was not relied upon by defence, as testing was unable to substantiate whether you suffer from any enduring cognitive impairment. It was also not submitted that there was any application of Verdins principles in your case.[1]

[1]R v Verdins (2007) 16 VR 269.

44Your sister, in her letter to the Court, states that she is attending at Swinburne University of Technology, where she will soon complete her Diploma of Nursing. Your sister has been married for 17 years and is the mother of three children. Unlike you, she has led a stable and productive life. She and her husband are supportive of you. Upon your release from custody, there is the prospect of employment in your brother-in-law’s family company, Byrne Construction, where in the past you had worked as a labourer.

45There was also a letter tendered from the Salvation Army prison chaplain Andrew Wilson, who states that he has worked with you during your time in custody and that you have participated in the Positive Lifestyle Program, which has helped you identify your underlying problems. Mr Wilson says that you understand that you must address your drug addiction if you are to have a positive future.

46Finally, I note that you are currently incarcerated and fall to be sentenced during the COVID-19 viral pandemic. I will take into account the impact of COVID‑19 and the risk it poses to you as a prisoner. I do so in the following ways: first, the threat posed by an outbreak of COVID-19 in the prison system is a cause of additional uncertainty and anxiety; secondly, the lack of prison visits, work opportunities and reduced run-out time increases the burden of imprisonment; and thirdly, the likelihood of further restrictive measures taken by Corrections will increase both the hardship of your sentence and your anxiety about such measures.

47I turn now to the assessment of the objective gravity of your offending and your moral culpability. Your offending represents an escalation in criminal conduct on your part. It was effectively a course of conduct which has occurred in a context of your drug use and homelessness. Much of your offending can be attributed, in the first place, to your refusal to stay off the road when disqualified from driving. This has brought you, time and time again, to the attention of the police.

48The most serious charges on the indictment involve your attempts to evade police and your resort to excessive speed, endangering the welfare not only of police but also of fellow road users. I regard charge 7 as the most serious charge. This was when you drove your vehicle at Leading Senior Constable Robert Manks. The charge of recklessly exposing an emergency worker to risk by driving was one of a number of new serious driving offences focused on the safety of emergency workers, which included police.

49The rationale was to address the prevalence of offenders using motor vehicles to harm police and emergency workers, and to recognise that violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated. I regard your moral culpability as high. When you have come to the attention of police and have feared being searched or being arrested, you have not hesitated to put others at grave risk in order to elude the police. So much of this offending could have been avoided if you had just complied with court orders and stopped driving during your period of disqualification.

50I turn now to the relevant sentencing principles. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct, but I must also promote, if possible, your rehabilitation.

51I am guarded about your prospects of rehabilitation. You do have the support of your sister and her family, which is positive, but, given your long-standing drug use and itinerant lifestyle, there will need to be significant rehabilitative interventions if indeed you are to rehabilitate.

52The prosecutor submitted that a term of imprisonment consisting of a head sentence and a non-parole period was the only appropriate sentencing disposition, given the seriousness of your offending. Your counsel conceded that this was the case.

53I will now sentence you, Mr Ivanusic. You are convicted on all charges.

54On charge 1, you are sentenced to a term of imprisonment of 10 months.

55On charge 2, you are sentenced to a term of imprisonment of two months.

56On charge 3, you are sentenced to a term of imprisonment of two months.

57On charge 4, you are sentenced to a term of imprisonment of two months.

58On charge 5, you are sentenced to a term of imprisonment of two months.

59On charge 6, you are sentenced to a term of imprisonment of two months.

60On charge 7, you are sentenced to a term of imprisonment of two years and nine months.

61On charge 8, you are sentenced to a term of imprisonment of 12 months.

62On charge 9, you are sentenced to a term of imprisonment of two months.

63On charge 10, you are sentenced to a term of imprisonment of one month.

64On charge 11, you are convicted and discharged.

65On the summary charges, I intend to impose aggregate sentences and aggregate fines.

66On the summary charges of drive while disqualified, I impose an aggregate sentence of 12 months.

67On the summary charges of fraudulently using number plates, I impose an aggregate sentence of one month.

68On the summary charges of using an unregistered motor vehicle, I impose an aggregate fine of $1,000.

69On the summary charges of speeding, I impose an aggregate fine of $400.

70Charge 7 will be the base sentence. I make the following orders for cumulation: on charge 1, I order that four months be served cumulatively; on charge 8, I order that six months be served cumulatively; on charges 2, 3 and 4, I order that one month on each of those sentences be served cumulatively; and on the summary charges of drive while disqualified, on which I imposed an aggregate sentence of 12 months, I order that four months of that sentence be served cumulatively.

71That makes a total effective sentence of four years and two months’ imprisonment. I am directing that you must serve three years before you are eligible for parole. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five and a half years’ imprisonment with a non-parole period of four years and six months.

72Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 413 days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court. I make the forensic sample and disposal orders sought by the prosecution; the seriousness of the offending warrants the forensic sample orders.

73Charges 1 and 7 on the indictment are both serious motor vehicle offences and require the mandatory cancellation of your licence pursuant to s 89 of the Sentencing Act 1991 (Vic). Charge 1 requires the mandatory cancellation of your licence for a period of not less than 12 months, and charge 7 requires the mandatory cancellation of your licence for a period of not less than 24 months. On both charges 1 and 7, any licence you hold is cancelled and you are disqualified from driving for a period of four years, commencing today, so that disqualification will have effect beyond the term of imprisonment.

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