Director of Public Prosecutions v Jovancevski

[2015] VCC 481

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-14-00930
CR-14-01873

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZLATKO JOVANCEVSKI

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2015
DATE OF SENTENCE:	15 April 2015
CASE MAY BE CITED AS:	DPP v JOVANCEVSKI
MEDIUM NEUTRAL CITATION:	[2015] VCC 481

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – use postal or similar service to harass – fail to answer bail – contravene condition of bail – contravene family violence protection order – commit indictable offence on bail

Legislation Cited:     Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic), Bail Act 1977 (Vic), Family Violence Protection Act 2008 (Vic)

Sentence:                  Convicted and sentenced to a period of imprisonment of 583 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Breckweg	Solicitor for the Office of Public Prosecutions
For the Accused	Mr B. O'Sullivan	Ann Valos Criminal Law

HIS HONOUR:

1In this matter Zlatko Jovancevski has pleaded guilty in Indictments CR1400930 and CR1400873 to six charges under the Criminal Code Act 1995 (Cth), in particular, of using a postal or similar service to menace, harass or cause offence contrary to s.471(12) of the Criminal CodeAct.  Exhibit A tendered, and indeed the Indictment itself, particularises each of those offences.  That Indictment is signed on behalf of the Director of Public Prosecutions and is dated 14 April 2015.  The charges themselves are detailed therein and, in particular, the circumstances behind those charges are detailed by way of Exhibit A, the summary of prosecution opening for plea, which has been put to the Court this morning. 

2Essentially what forms the background to these charges is what the courts encounter on occasions, that is querolence.  The background, as I understand it, goes back to 2007 when the prisoner was represented by Melbourne Injury Lawyers in a personal injury claim, in which he was unsuccessful. 

3Tendered on his behalf is Exhibit 1, the psychiatric report of Dr Sullivan dated 24 March 2013, prepared at some stage while bail was being sought.  That report is relied on very much by the Court, not only because of the respect with which Dr Sullivan is held, but also because of the comments, information and history provided.  What often happens, unfortunately, with querolent persons is that as described by Dr Sullivan at paragraph 4, "While these matters do not represent delusional beliefs, but rather self-righteous grievances". 

4Mr Jovancevski, in our community no one minds anyone representing themselves and doing all they can to right what they see as a grievance or wrong committed against them.  However, in this circumstance, by your plea and your actions, which have been accepted as accurate by your counsel, you have not only sought to advance your own rights, but you have trampled on other people's rights.  You have trampled on their rights to carry out their public duties, their sworn duties in some instances, and not be vilified in the manner that you have or in the particular manner that you have utilised the postal service to harass them by way of offensive material.

5As has been pointed out by your counsel, exclude these particular paragraphs in the many letters that you have sent, and there is no issue.  However, we cannot exclude those because these are the very matters that have caused offence to each of these individuals, as they are identified, and have caused them, on occasions as we understand it, albeit, there is no victim impact statement, but I accept from the body of the Court that they have been concerned for their own safety, and for the safety and welfare of their families.  That, no doubt, is because implicit in some of these remarks are threats, should they deal with you in a particular way.

6The matters that I am dealing with involve not only the six rolled-up charges as detailed in Exhibit A, but also the additional summary matters to which you have pleaded guilty through your counsel.  They are offences under the Bail Act 1977 (Vic), being two offences the breach of s.30B of the Bail Act, committing an indictable offence while being on bail for which the maximum penalty is three months or 30 penalty units, and five offences under s.30A(1) of the Bail Act, being breach bail condition, again imposing in the same sentence and then a further offence under s.301 of the Bail Act, being an offence of fail to appear for which the maximum penalty imposed is 12 months.

7In addition, you have asked the Court to exercise and deal with summary matters in regard to two offences committed under the Family Violence Protection Act 2008 (Vic), and they are two offences of breach intervention order under s.123.2 of the Family Violence Protection Act. Albeit the maximum penalty, in that instance, for each offence is one of two years, it would appear, on the circumstances as described, that your breaches were not of an extreme order and involve respectively, one, the writing of a letter to your children and, secondly, in June 2014, the writing of a letter to you wife.

8As is pointed out, insofar as the offences on the Indictment, you chose to have these matters heard before this Court by way of Indictment, thereby rejecting a summary disposition of the matters.  The result thereof is that the maximum penalty that could be imposed upon you increases from one year to two years, for each of the six charges. 

9Unfortunately, because you failed to desist in this campaign that you conducted against these various officials in various organisations, you then breached your bail and, as a result thereof, your bail was respited and you have, on various occasions, been remanded and, indeed, remanded to the extent that you have now been in gaol for 583 days.  That represents, in any language, a significant period of imprisonment.  Indeed, the submission of the Crown is, and supported obviously by the defence in this matter, that in particular had this matter been dealt with in the Magistrates' Court, and even in this Court, given the totality of the offending, it would be unlikely that you would have received such sentence by way of immediate imprisonment.  I accept that proposition.

10As your counsel has said to me, it is hoped that by the service of those 583 days, you realise that people cannot be treated in this offensive manner.  I say again, you can pursue your rights in democratic Australia to the greatest capacity that you are able, however, it is totally unacceptable for you to be breaching the rights of others in the manner as demonstrated here. 

11I take into account in totality the matters mentioned by Dr Sullivan and his assessment in regard to your mental health, albeit that that assessment was made in March 2013. I do state that because of the particular circumstances of this case and the fact that you took various actions without legal advice which have led to you clearly serving a considerable period of immediate imprisonment, that I take the view that it is appropriate to pass an immediate sentence without a recognisance being placed on you pursuant to s.19AD(4) of the Crimes Act.

12Further, I accept the submission of the prosecution that I should impose an aggregate sentence in this matter.  That aggregate sentence will relate to the six charges in the Indictment.

13It is, of course, important to recall that in coming to that determination I accept the submission of the prosecution that general deterrence is of importance in this matter.  The institutions of which you have afflicted with your offensive material are important institutions in this community. 

14Specific deterrence is also important because you have shown that even while on bail, you are prepared to commit further offences.  They are, of themselves, obviously highly offensive and, as I have said, disturbing behaviour and the victims have rightly felt disturbed for themselves and their family. 

15The principles set out in s.16A of the Crimes Act1914 (Cth) in regard to sentencing of course require me to take into account particular aspects and one of the most important aspects is that you have pleaded guilty to all these matters. You are person who comes before the Court without any prior criminal offences, it has always been the view of this Court that such a person is entitled, initially, to as much mercy as can be given by the Court, given the seriousness of the matters.

16It was not, in fact, submitted on your behalf that, given the seriousness of these charges that, a gaol sentence should not be imposed.  Indeed, Mr O'Sullivan submitted to the Court that a gaol sentence should be imposed and was warranted.  His submission, however, was that in all the circumstances I should accept the submission of the prosecution that the 583 days is sufficient in all the circumstances.

17Given the particular matters that I have referred to which mitigate your offences, and the matters referred to in Dr Sullivan's report, I accept that submission of Mr O'Sullivan. I intend, therefore, in relation to Charges 1 to 6, to impose an immediate sentence of 583 days pursuant to the provisions of s.20(1)(b) of the Crimes Act. I further order that period that you have spent on remand be deemed as service of this sentence and that a declaration pursuant to s.18 of the Sentencing Act 1991 (Vic) be recorded in the records of this Court to that effect.

18The end result of that, Mr Jovancevski, is that, subject to the formalities being gone through today, you have, in fact, served the totality of your sentence and there is no reason, subject to the administrative matters being attended to, why you would not be able to be released today. 

19I stress again, you would not want to, and I hope that is not your intent, one is never sure what is achieved by sending persons to gaol, it is hoped certainly if one listens to various pronouncements made in public, that gaol stops people from committing further crimes.  One would hope that the period you have served serves to demonstrate to you that people's rights cannot be trammelled upon and that they are entitled to the same rights that you are pursuing on your own behalf.  In those circumstances, I do not expect, hopefully, Mr Jovancevski to see you back in Court again.

20I now need to make orders in regard to the summary matters and order that - when are they to start?

21MS BRECKWEG:  What I will do, Your Honour, if I may, is to say that ‑ ‑ ‑ 

22HIS HONOUR:  Because we've then got the issue of when the Commonwealth sentence starts and when the State sentence starts, haven't we?

23MS BRECKWEG:  They both start today and that the time has already been served.

24HIS HONOUR:  All sentences are to start today.

25MS BRECKWEG:  Yes, that's right, Your Honour.

26HIS HONOUR:  And in regard to the other matters ‑ ‑ ‑ 

27MS BRECKWEG:  What you would do, Your Honour, is make ‑ ‑ ‑ 

28HIS HONOUR:  They will obviously be served concurrently because they will be consumed within the 583 days.

29MS BRECKWEG:  Yes, that's exactly right, Your Honour. 

30MR O'SULLIVAN:  I agree with that, Your Honour. 

31HIS HONOUR:  In regard to the two offences being of commit indictable offence while on bail, in each instance I will sentence Mr Jovancevski to one month's gaol.  In regard to the breach bail condition of seven days' gaol in regard to each of the five offences.  In regard to fail to appear, one month;  in regard to the two breaches of the family violence order, on each offence I impose a period of imprisonment of one month.

32I order that each of those sentences be served concurrently not only with themselves but with the sentence I have imposed in regard to the Indictment.  And the declaration that I have made in regard to the Indictment, I also make in regard to these matter that the 583 days relates by way of pre-service of these sentences, so that in totality, the 583 days relates not only to the Indictment by way of pre-sentence detention, but also to all of the summary offences and in those circumstances, I make it clear for the purpose of the Correction authorities but for administrative matters, Mr Jovancevski is free to walk out of gaol today.

33Do I need to say any more?

34MS BRECKWEG:  No, Your Honour.

35MR O'SULLIVAN:  No, Your Honour.

36HIS HONOUR:  Mr Jovancevski, please remember what I had to say and listen to your counsel when he talks to you today. 

37PRISONER:  Yes.

38HIS HONOUR:  Do you want to talk now or are you going to talk later?

39MR O'SULLIVAN:  If I could speak to him now, Your Honour.

40HIS HONOUR:  Yes, I'll leave the Bench and you can explain very clearly what I've had to say in my reasons and that it would not be in his interest to be back here very shortly.

41MR O'SULLIVAN:  Thank you, Your Honour.

42HIS HONOUR:  Thank you.

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