Director of Public Prosecutions v Janitis

[2024] VCC 1316

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR-23-01805, CR-24-00823, CR 24-00824

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER JANITIS

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2024
DATE OF SENTENCE:	23 August 2024
CASE MAY BE CITED AS:	DPP v Janitis
MEDIUM NEUTRAL CITATION:	[2024] VCC 1316

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW - Sentence

Catchwords:                    Burglary – Theft of a firearm – Theft of a motor vehicle – Perjury - Plea of guilty – Relevant summary offences – Koori Court Jurisdiction -  Application of Bugmy principles

Cases Cited:            Bugmy v The Queen 249 CLR 571.

Sentence:Total effective sentence of two years and seven months' imprisonment with a non-parole period of 19 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gronow	Office of Public Prosecutions
For the Accused	Ms E. George	Slink & Keating Lawyers

HIS HONOUR:

1Peter Janitis, you have pleaded guilty before me in the Koori Court to the following charges across three different indictments.  First, on indictment P10409768, to a charge of perjury.  On indictment P10737391, a charge of burglary and a charge of theft of firearms, and on indictment P10716291, a charge of theft of a motor car.  You have also pleaded guilty to two relevant summary offences, possess controlled weapon and possess dangerous article.  The maximum penalty for perjury is 15 years' imprisonment.  For the theft of motor vehicle, the maximum penalty is 10 years' imprisonment.  For burglary, the maximum penalty is 10 years' imprisonment and for theft of firearms the maximum penalty is 15 years' imprisonment.

2Relevant summary charges, possess controlled weapon without excuse, a maximum of one year imprisonment, and possess dangerous article, maximum of six months' imprisonment.  You have admitted prior convictions and they are relevant prior convictions, particularly where burglary prior convictions appear.  The period you have been in custody, on my assessment - this will be the longest sentence you have faced.  You have either been sentenced in the past to a Community Correction Order, which you have not had great success at completing, or short terms of imprisonment, which for most part appear to be time served and when you get to court to get sentenced, to time served and would leave custody without any supports.

3But other than those observations, the history is, apart from the most concerning or concerning categories that I see, it is reflective of what I understand about your background and that is the long-standing issues that you have had in respect of substance use.  It is reflective of that and other criminogenic factors, but before leaving the record, I will make one further observation and that is that the theft of the firearms appears to be the most serious charge that you have been dealt with even in that lengthy history.

Circumstances of Offending

4The circumstances of your offending are set out in Exhibit A which is the Summary of Prosecution Opening for Plea dated 16 August 2024.  I do not propose to recite the details therein, particularly in respect of the perjury offence.  It is set out adequately in Exhibit A.  The theft of motor car is set out adequately in Exhibit A, as is the burglary and theft of firearms charge, but I will just touch on some aspects of those circumstances.

5You and a co-offender forced open a gate, damaging the padlock latch and you went to the garage area, pried open the garage roller door causing damage to it and entered the garage.  That is the burglary charge and there you stole 10 firearms from the safe using a grinder to remove padlocks from the safe.  That is the lengths you went to.  Beretta, Bentley, Stoeger Condor shotgun, Remington 700 Centrefire rifle, Tikka Centrefire rifle, Browning X-Bolt, Winchester Rimfire rifle, Savage Mark 2 Rimfire rifle, Birmingham Small Arms Company sportsman rifle and an air rifle. 

6All but one of those guns remain in the community and that is a significant matter from a sentencing perspective.  Only the Savage Mark 2 Rimfire rifle was recovered and that was because it fell from the vehicle apparently or fell from the container it was in whilst you were departing.  The objective gravity of the offending before me is reflected in the maximum penalties of each of the offences before me.  Particularly, perjury of course, as it is often said that that is an offence which strikes at the heart of the justice system. Your commission of that offence is not high end, nor is it at the lowest end. 

7The theft of firearms seriousness is reflected in the maximum of 15 years' imprisonment, whereas theft simpliciter is a 10-year maximum and that is obviously reflective of the seriousness with which Parliament views that offence and also the community and I must impose a sentence that denounces that conduct.

8A serious aspect of it as I have mentioned is the fact that the majority of those firearms are in the community and the nature of illicit firearms, firearms that are no longer where they should be and insecure, is that they find their way into the hands of others who are going to use them for nefarious purposes.  That is an obvious risk to community protection and of obvious concern to the community. 

Personal Circumstances

9Turning to your personal circumstances.  You are 46 years of age, and you are at an age where you really should be leaving this sort of lifestyle behind.  You are an Aboriginal man and proud of your heritage and are connected to your culture, but this was not always the case due to circumstances beyond your control of course.  You were adopted at birth.  Your Aboriginality comes through your father's line.  Your biological mother was a young mother and the circumstances are known to the Court as to you then being adopted and you were raised by a loving family but you did not feel you fitted in and particularly around the age of 10 you were told of your adoptive status and this further led to you feeling disconnected and a sense of not belonging.

10You had other factors within that family that contributed to those feelings and those traumas and that was at the hands of your older adoptive brother who it seems had his own difficulties but was violent towards you and that was a traumatic experience for you.  You had some difficulties in early school.  I was told you repeated Grade 1 and you transferred to a special school for a period of two years.  But those matters seemed to largely resolve.  However, no doubt due to the sense of not belonging and perhaps also due to the traumatic experience you were experiencing at the hands of your brother, you gravitated towards early drug use and other negative experiences. 

11I was told that at the age of 13, you were held down by a friend's uncle and forcibly injected with heroin and introduced to a life of crime around that age.  At 16 you left the family environment and moved into a share house, and you felt a greater sense of belonging there.  A lot of this comes back to that disconnection that you had felt.  As I have said, you were growing up in a loving household, but it was not your biological family, and your heritage from your father's side was Aboriginal and with all the history and the connections that go with that.  You were completely disconnected from that growing up and that has had an impact on you in those formative years, together with other parts of your makeup and other experiences you then drifted toward, at a young age, when you were still a child, and all of those forces have shaped you, shaped your responses, shaped your abilities and have had an impact on you in those early years, which in your case has led to illicit substance use and abuse, criminal offending, but also inadequate addressing and dealing with psychological issues and mental health issues. 

12You have had other experiences of trauma in your early years.  You have told of witnessing the murder of a friend at the age of 14.  You were struck by a motor car at the age of 21 and you told Ms Cokorilo that you were deliberately hit by a motor vehicle, you spent six months in a coma, hospitalised for an additional eight months, a number of broken bones.  Your life has had a number of aspects to it which have been reflective of the lack of stability in those earlier years and a somewhat chaotic approach and a chaotic lifestyle. 

13You had three partners, children in respect of each of those three and some of those partners, particularly in relation to the mother of your youngest child, has been a great support, but that is not so available to you now as I understand it.  But you are finding support from your biological father and your oldest daughter, but it is not always proximate and available to you for obvious reasons. 

Other Sentencing Considerations

14You participated in the Sentencing Conversation, and you participated fully.  I take your participation into account.  I recognise that participation in the Koori Court process is a more onerous and challenging process than in the general list process.

15Your submission to that process and participation in it was complete.  You engaged very well and had the opportunity to speak to very experienced and wise Elders in Uncle Jim Berg and Uncle Wally Harrison and you obviously got a lot out of that process.  You did express some frustration with your current circumstances in custody.  Being in protection, you are not able to work and engage in as many things as you would like to.  You are on methadone at the moment and you are trying to wean yourself off it.  What you really want to do, you told your Elders, is get back to Queensland On Country and spend some time with your father who you only met eight years ago and his health is not the best.

16You are interested in Aboriginal art and you have produced photographs of your artwork and it is very clear that it is at a high level.  There was one piece in particular in relation to a shield that you described as coming to you in a dream and I could see that both Uncle Wally and Uncle Jim were extremely impressed with that piece of artwork and from my perspective it leaps off the page.  It is a very strong representation.  You spoke intelligently during the conversation and I formed the view that you were serious about rehabilitating, that you were serious about trying to get on top of your drug issues and engaging with supports.  You have had engagements with Dardi Munwurro and other organisations in the past. 

17What I took from observing you in the conversation was that you have the ability to access supports and engage with services to provide the help that you clearly need in respect of dealing with substance use but also your mental health.  I received a report from Ms Cokorilo and that has been a very useful assessment of you, particularly in relation to the impacts of those early experiences to which I have already referred.  I take those matters into account, as I do the summary of those matters and their impacts upon you as set out in Ms George's very helpful plea submissions.

18You have pleaded guilty.  You are entitled to a significant discount due to your pleas of guilty in respect of these matters.  As I have already alluded to, other than by reference to the case itself of Bugmy[1] and the matters that are relied upon, not exclusively but in combination, align themselves with the type of mitigation that is envisaged by the case of Bugmy, I apply that principle and mitigate your sentence accordingly.  I say not exclusively because there is also mental health issues and cognitive functioning issues that have contributed to those experiences and your trajectory through life as well, generalised anxiety disorder, major depressive order.  Those experiences impact on your time in custody and the hardship associated with that and I take it into account.

[1]Bugmy v The Queen (“Bugmy”) 249 CLR 571.

19General deterrence must be a significant factor, particularly for the theft of firearms offence, but also the other charges and, as I have mentioned, denunciation and community protection are concerns as well.  But I have to balance those up with what I have concluded in respect of prospects of rehabilitation.  Having a look at your history, it does not appear to me that you have had a period of parole previously.  Doing the best I am able, drawing together the relevant sentencing factors, I have concluded that an opportunity on parole in the near future, if you are able to get parole, will be the best way of addressing all of those sentencing factors that I must.

Sentence

20So I now sentence you as follows. 

21Mr Janitis, on the charge of perjury, which is indictment P10409768, you are sentenced to 12 months' imprisonment. 

22On the indictment No.P10737391, which is the indictment containing burglary and theft of the firearms, on Charge 1 of that indictment, burglary, you are sentenced to 18 months' imprisonment. 

23On Charge 2, the charge of theft of firearms, you are sentenced to two years' imprisonment.  That will be the base sentence. 

24On indictment P10716291, the theft, you are sentenced to four months' imprisonment in respect of that. 

25The relevant summary offences, possess controlled weapon, you are sentenced to one month imprisonment, possess dangerous article, one month imprisonment. 

26Three months of the sentence imposed on the perjury charge will be cumulative on the base sentence and other sentences.  Three months of the sentence imposed on Charge 1, burglary, will be cumulative on the sentence imposed on Charge 2 on that indictment and other sentences.  One month of the sentence imposed on the theft of motor car charge will be served cumulatively as well. 

27That makes a total effective sentence of two years and seven months' imprisonment. 

28I set a non-parole period of 19 months. 

29I declare that pursuant to s18 of the Sentencing Act that you have served
505 days of that sentence already. 

30Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years with a non-parole period of two and a half years.

31Now, were there any disposal orders I need to make?

32MS GRONOW:  Yes, Your Honour.

33HIS HONOUR:  Yes.

34MS GRONOW:  In relation to the theft of motor vehicle – apologies, charge. 
So a disposal order was sent through for the black handled knife and the black and orange handled chisel, the controlled weapon and the dangerous article.

35HIS HONOUR:  All right, well I will locate those, the order.

36MS GRONOW:  I can re-send it to your associate.

37HIS HONOUR:  I have probably got it here somewhere.  I will certainly make that disposal order and I will sign that.

38MS GRONOW:  Thank you, Your Honour.

39HIS HONOUR:  All right.  Well, Mr Janitis, on my calculations, subject to any emergency management days or anything like that, you will be eligible for parole in about two and a half months.  So that provides you some time to get your things in order as to where you are going to live and weaning yourself off medication if that is what you want to do and applying for parole.  I would expect you would be paroled and then it is a matter of liaising with the Parole Board as to whether you can return to Queensland and I would hope that you have some success in that regard, but you can discuss the ramifications of the sentence further with Ms George.  I will leave you on the link for now and I will adjourn the court.

40MS GEORGE:  As Your Honour pleases.

41MS GRONOW:  As the court pleases.

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