Director of Public Prosecutions v Jankovic
[2014] VSC 673
•17 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 67
S CR 2014 71
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IVAN JANKOVIC and SCOTT MALACHOWSKI |
---
JUDGE: | Bongiorno JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2014 |
DATE OF JUDGMENT: | 17 December 2014 |
CASE MAY BE CITED AS: | DPP v Jankovic |
MEDIUM NEUTRAL CITATION: | [2014] VSC 673 |
---
CRIMINAL LAW – Sentence – Intentionally causing serious injury – Beating with wood and metal object – Guilty plea – Small difference between two offenders – No point of principle
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Gilligan | Mr C Hyland, Solicitor for Public Prosecutions |
| For the First Accused | Mr N Papas QC | David Barrese and Associates |
| For the Second Accused | Mr T Wraight SC with Mr A Halphen | Lethbridges |
HIS HONOUR:
Ivan Jankovic and Scott Malachowski have each pleaded guilty to a charge of intentionally causing serious injury to Richard Harris, arising from an incident that occurred on the afternoon of 17 July 2012 at Jankovic’s home in Hoppers Crossing. Intentionally causing serious injury carries a maximum sentence of 20 years’ imprisonment.
Jankovic had invited Harris to his home. When Harris entered the living room, Jankovic began playing a video of an interview between himself and police officers, made some days earlier, concerning a stolen caravan. As the video played, Jankovic accused Harris of being a ‘dog’ and a ‘rat’, suggesting that he, Harris, was responsible for Jankovic’s involvement with the police. Jankovic screamed at Harris as they argued over the allegation.
Malachowski then entered the room carrying a side-by-side double barrel shotgun. He also called Harris a dog and/or a rat although Harris did not know Malachowski at all. Jankovic yelled at Malachowski, ‘Shoot him. Blow him now. Blow him now’. Malachowski then aimed the gun at Harris but did not fire it. A struggle ensued in which Jankovic pushed Harris causing him to fall backwards through a window. He tried to escape but Jankovic held onto him and prevented him from doing so. Jankovic and Malachowski then threw Harris to the floor on top of the gun. Harris then managed to fire the weapon at a wall of the room thereby discharging one of the barrels. Malachowski then began hitting Harris with a piece of wood and subsequently with a metal object.
But the fracas did not stop there. Jankovic yelled at Malachowski to go to the bedroom to get more ammunition. As Malachowski re-emerged from the bedroom, Jankovic continued to yell, ‘[s]hoot him. Shoot him, let’s finish it. He’s not going home’. Malachowski responded by saying, ‘[w]e don’t have to shoot him’. He said he would bash or stab Harris but not kill him. Harris by this time was bleeding and lapsing into unconsciousness. At some point during the altercation, Jankovic managed to handcuff both of Harris’ wrists.
Subsequently, police arrived, having been called by a neighbour, to find a large amount of blood on the floor, on the walls, on the curtains and on the furniture in the room where the assault took place. Harris had a wound or wounds to his head and was still handcuffed. He was released by police.
Questioned at the scene, Jankovic lied to the investigating police. He said Harris had broken into his house. He said he had been cleaning his gun — presumably to explain an empty cartridge on the floor — and that Harris had broken the window, ‘because he thinks I owe him money’.
On inspection of the scene, police found a blood-stained piece of wood, a blood-stained socket wrench and shotgun pellets on the floor. Unused cartridges were found in a drawer in the bedroom where the shotgun was also found. Jankovic was arrested and made no comment to the questions put to him by police. He did not identify Malachowski, who by this time had fled the scene, as having been with him at the time Harris was assaulted.
Malachowski was not apprehended until 14 September 2013, over a year later, at which point he denied all knowledge of the events at Jankovic’s home in July the previous year. He said he knew Jankovic but last spoke to him a year or two before he was arrested. He said he saw little of Jankovic or of his own sister, who was Jankovic’s partner.
After the incident, Harris was taken to the Royal Melbourne Hospital where he underwent surgery. He was found to have a comminuted fracture of the head of the fifth metacarpal of his left hand and multiple lacerations and contusions to his scalp. He has ongoing disability as a result of this assault. In an undated medical report which must have been written in about March of 2013, nine months after the assault, a general practitioner, Dr Kirsten Hamblin, reported that he was still suffering vertigo, was physically unable to carry out his previous occupation and was receiving treatment from a psychologist, a Dr Angelo Pagano, for severe anxiety, recurrent nightmares and flashbacks.
A victim impact statement filed by Harris attests to the severe and long-lasting effects of the assault upon him. His injuries are reported by him as both physical and psychological and appear to be having a dramatic effect on his quality of life, his capacity to earn a living and his capacity to relate to other people, including his partner. His partner’s victim impact statement (one paragraph of which was deleted because it was inadmissible) corroborates that of Harris. Serious injury, as understood at the time of this offence, covered a very wide spectrum. The injuries suffered by Harris would be classified for sentencing purposes as not being at the high end of that spectrum. Rather, it should be characterised as being at somewhere around the halfway point.
Ivan Jankovic
Jankovic was aged 33 at the date of the assault, as was the victim, Harris. He was born in Australia to parents who separated when he was six years old. He completed Year 11 at high school and started a plumbing apprenticeship, which he finished in 2000. After working for a plumbing company, in 2003 he began sub-contracting for various builders and, in 2014, he expanded his business by purchasing an excavator. For recreation Jankovic enjoyed hunting and fishing; hence the shotgun. He has had only one prior contact with the law — for a drink driving offence for which he was placed on a bond. He is awaiting a hearing in the Magistrates’ Court on a charge of theft of a caravan, a matter related to the events which precipitated the offending for which he is now to be sentenced.
Apart from those matters, of little consequence in the present context, Jankovic has been of good character. It is particularly noteworthy that in the two and a half years since committing this assault he has been in no trouble, has had an apparently happy family life and has conducted a viable business without apparent incident. He was also able to put before this Court a number of extremely favourable testimonials from other citizens, some of which at least referred to the remorse he has displayed with respect to this offending. His counsel also offered an apology, on Jankovic’s instructions, to his victim in the course of his submissions.
These things of course must be seen in the light of his lies to police upon their attendance at the scene of the offence, his refusal to identify Malachowski as his co-offender and his late plea of guilty to the offence for which he is to be sentenced. This offence may have been out of character for Jankovic, as some of these testimonials assert, but it was nonetheless a vicious attack by two men on a third using weapons, a piece of wood and a socket wrench and threatening to use another, a gun, in a lethal way. The experience of hearing Jankovic urge his co-offender to shoot to kill must have been terrifying for Harris, and is no doubt responsible for some of the ongoing psychological problems recorded in the medical and psychological reports from Dr Hamblin and Dr Pagano already referred to.
The principal sentencing considerations in this case would appear to be the need to punish the offender; to denounce violence of the nature displayed here; to deter others from adopting this behaviour in attempting to solve interpersonal problems; to deter Jankovic from resorting to violence again; and to encourage his rehabilitation in this respect following this unfortunate lapse. Of these in the current circumstances I regard punishment, denunciation and general deterrence as being the most significant.
I accept Jankovic’s counsel’s submission that his lack of contact with the law since July 2012 suggests that he needs little encouragement to remain law-abiding and that he has already embraced his own rehabilitation, motivated to do so by his strong family attachment to his partner and their son.
Counsel also submitted that, having regard to a change in the definition of ‘serious injury’ effected by the Crimes Amendment (Gross Violence Offences) Act 2013, had the events of 17 July 2012 occurred now the injuries inflicted on Harris that day would not have been severe enough to have constituted serious injury. Accordingly, he argued that fact should, to some degree at least, be taken into account as a mitigating factor in the sentencing process.
This submission cannot be accepted. Even if the factual basis for the submission were correct, that Harris’ injuries would not now qualify as serious, as to which I have some doubt, the amending Act specifically provides that it has relevance only to offences committed after its commencement.[1] There is no warrant for its being taken into account in determining the sentence in this case.
[1]See Crimes Amendment (Gross Violence Offences) Act 2013, s 6, which inserts s 618 into the Crimes Act 1958.
Scott Malachowski
Scott Malachowski was 28 at the time of this offence. His sister, Amy, is Jankovic’s partner and the mother of his son. On 17 July 2012 Malachowski had gone to Jankovic’s home to collect money owed to him for work he had done for Jankovic. It appears that Harris was already at Jankovic’s home when Malachowski arrived to hear the argument between Harris and Jankovic to which I have already referred. He became involved in the dispute and took Jankovic’s side by joining him in the physical assault on Harris. Fortunately, he refused to carry out Jankovic’s repeated request to kill Harris, thereby avoiding a murder charge against both of them. Short of that, however, he enthusiastically assaulted Harris and, shortly after, at the arrival of police left the scene and was not apprehended for another 14 months.
Malachowski’s background is not unlike that of Jankovic. He completed Year 10 at high school and began a carpentry apprenticeship. He subsequently worked at cabinet making, plastering and bricklaying. At about the age of 26 he commenced working as a concreter on his own account and currently works five or six days a week as a subcontractor. He lives with his father on the Surf Coast and is a devoted father to a nine year old son to whom he has access. The child’s mother had been an intravenous heroin user who had served a prison sentence for a drug related armed robbery.
Malachowski himself has used illicit drugs in the past, including methamphetamine, but told a psychologist who examined him recently that he did not do so now. He also told the psychologist that, when he committed the offence that now brings him before this Court, he had just drunk a six pack of standard beer. He described his involvement in the offences as being a result of misguided loyalty to Jankovic, his sister’s boyfriend.
Malachowski has relevant prior findings of guilt arising from a driving incident which involved some indeterminate level of violence and a relationship dispute similarly. Each was dealt with by a non-custodial disposition. He was also able to rely on a number of impressive testimonials, both work related and personal. They express opinions indicative of remorse by him for what he has done. His counsel also pointed to his plea of guilty as an indication of remorse and a willingness to assist the course of justice, for which he should be given credit.
The sentencing considerations in Malachowski’s case are similar to those in Jankovic’s. He too has a satisfactory work history and little in the way of prior criminal conduct. Like Jankovic, he has never been in prison but accepts that as a result of this offence, he will receive a prison sentence which he must serve.
Although Mr Jeffrey Cummins, the psychologist who examined Malachowski recently, was prepared to proffer the opinion that he was experiencing psychological difficulties at the time of his offending, triggered by the turbulence in his de facto relationship, his counsel, wisely, did not argue that Verdins[2] considerations were relevant to the sentencing task in this case. He did argue, however, that the time since the offence during which Malachowski has not offended should be accepted as an indication that specific deterrence need not be a major sentencing consideration. The offending, he said, was aberrant and situationally motivated. I also note the comment by Mr Cummins that prison may be harder for Malachowski than for others because of separation from his sons. This opinion does not invoke a Verdins principle either.
[2]R v Verdins (2007) 16 VR 269.
The main sentencing considerations here are, as with Jankovic, punishment, denunciation and general deterrence. Malachowski’s good record over the last two and a half years and his apparent willingness and determination to do the best he can to work hard whilst in prison to obtain parole at the earliest possible date, his family support and his apparent devotion to his son indicate that he is intent on his own rehabilitation and needs little encouragement to refrain from further offending.
In reaching the sentence about to be imposed, I have taken into account the plea of guilty by both prisoners and the time at which those pleas were indicated. I have also considered the question of parity as between them and, although the enterprise they embarked upon was a joint enterprise, it was instigated by Jankovic who wished to punish Harris for a perceived wrong done to him over an allegedly stolen caravan. Malachowski had nothing to gain from the exercise and, as already noted, his refusal to carry out Jankovic’s request or direction to shoot Harris may have saved Harris’ life. There is some small disparity between the two offenders in what they did and that should be reflected in the sentences imposed, but only to a very modest degree, having regard to their respective roles.
Ivan Jankovic
For the reasons I have given, Ivan Jankovic, for the crime of intentionally causing serious injury, you are sentenced to five years’ imprisonment, of which you will be required to serve three years before being eligible for parole.
For the reasons I have given, Scott Malachowski, for the same crime you are sentenced to four and a half years’ imprisonment of which you will be required to serve two and a half years before being eligible for parole.
Section 6AAA declaration
Had these offenders not pleaded guilty, they would have been sentenced to six and a half years’ and six years’ imprisonment respectively, with non-parole periods of four and a half years, and four years respectively.
Pre-sentence detention
There will be declarations that:
a)Ivan Jankovic has served 40 days of relevant pre-sentence detention; and
b)Scott Malachowski has served 9 days of relevant pre-sentence detention;
in respect of these sentences, each not including today, 17 December 2014, and it is ordered that these declarations and their effect be entered in the records of the Court.
---
0