Director of Public Prosecutions v Jovanovic

[2018] VCC 1156

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00544
CR 18-00675

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL JOVANOVIC
LUKE EVANS

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2018
DATE OF SENTENCE:	30 July 2018
CASE MAY BE CITED AS:	DPP v Jovanovic & Ors
MEDIUM NEUTRAL CITATION:	[2018] VCC 1156

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Four armed robberies; relatively unsophisticated offending; remorse; methylamphetamine addiction; general deterrence; denunciation; reasonable prospects for rehabilitation

Legislation Cited:                   Sentencing Act 1991

Sentence:(Evans) Total effective Sentence of 5 years and 9 months imprisonment. Non-parole period of 3 years 3 months.

(Jovanovic) Total effective sentence of 5 years and 10 months imprisonment. Non-parole period of 3 years 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For Accused Jovanovic	Mr P. McClure	Balmer & Associates
For Accused Evans	Mr J. Westmore (For Plea) Mr T. Flicker (For Sentence)	James Dowsley & Associates

HIS HONOUR:

1In the period 27 November 2017 to 29 November 2017, Luke Anthony Evans and Michael Jovanovic, committed three armed robberies on convenience stores in Melbourne's central business district.  Five days later, on 4 December 2017, they committed a further armed robbery at an IGA supermarket in South Yarra.

2The method used to commit each of these armed robberies involved Mr Jovanovic riding his motorbike with Mr Evans as his passenger to a particular convenience store.  Mr Jovanovic would then wait on the motorbike whilst Mr Evans went in wearing a full-faced motorbike helmet as a disguise and threatened the store attendant with a kitchen knife, robbing him of cash and cigarettes.  Mr Evans would then make a quick exit, fleeing on the back of Mr Jovanovic's motorbike.

3The total value of the cash and cigarettes stolen in these armed robberies was $5,868.20.  After the fourth armed robbery, patrolling police observed Mr Evans and Mr Jovanovic close to the IGA supermarket they had just robbed.  In attempting to escape, the motorbike was driven into a dead-end street and abandoned.  Mr Evans was apprehended in Alexandra Avenue South Yarra with the cash and some of the cigarettes stolen from the IGA.  Mr Jovanovic was located hiding in the front courtyard of an apartment complex at 133 Alexandra Avenue South Yarra, and was arrested with the assistance of the Critical Incident Response Team and a police dog.

4Both offenders were cooperative with investigators and made substantial admissions to their involvement in each of these armed robberies.  It is clear that each of them was addicted to methamphetamine, and those addictions provided the setting within which this offending occurs.  Before proceeding to impose sentence, I need to detail the circumstances of each of the armed robberies, set out the impact these crimes have had, summarise the personal histories of each of the offenders and analyse the submissions put by each of the parties as to sentence.

Charge 1

5With respect to Charge 1, on Monday 27 November 2017 at about 1.25 am, the two offenders both travelled to the Ezy Mart convenience store at 123 Queen Street, Melbourne on a black and red-coloured Yamaha motorbike.  Mr Jovanovic was wearing a white helmet, Mr Evans was wearing a motocross helmet of the type depicted at pp.157 and 158 of the depositions.

6Mr Evans entered the store brandishing a black-handled kitchen knife and said to the store attendant, Asad-Ali Minhas, "give me the money and the cigarettes".  In response, Mr Minhas opened the cash drawer and gave Mr Evans all of the notes.  He also gave him approximately nine packets of cigarettes.  Mr Evans put some of the cash and cigarettes into his clothing and carried the rest out of the store, where he got onto the motorbike and Mr Jovanovic rode out of the Melbourne business district.

7The total value of the stolen property was $1,577, being nine packets of cigarettes valued at $297, and $1,280 in cash.

Charge 2

8In respect of Charge 2, on Wednesday 29 November 2017 at approximately 2.25 am, Mr Jovanovic and Mr Evans returned to the same Ezy Mart convenience store at 123 Queen Street, Melbourne.  Jovanovic parked the Yamaha motorbike in front of the store whilst Mr Evans got off the motorbike and ran into the store in much the same way he had done on the previous occasion.  He was wearing a motocross helmet and visor, together with a facemask and gloves.  This time he carried a pillow case for the purpose of carrying the cash and cigarettes.

9Mr Evans yelled the words "give me the 50s and 100s, and give me the cigarettes" at the store attendant, Hassan Naddem, who was working alone.  Mr Naddem was clearly very scared and did as he was told.  Approximately 20 packets of cigarettes, together with the cash, was given to Mr Evans.  Then Mr Evans ran out of the store, jumped on the motorbike with Mr Jovanovic and rode away.  The total value of stolen property from this armed robbery was $1,149.00, consisting of seven packets of cigarettes valued at $229.00 and $920.00 in cash.

Charge 3

10As to Charge 3, approximately two or so minutes after the armed robbery constituted by Charge 2, Mr Jovanovic and Mr Evans attended at another Ezy Mart, the convenience store at 377 Little Bourke Street, Melbourne.  Again, the motorbike was parked outside the front of the store and Mr Evans ran inside to confront the attendant.  Mr Abdul Basit was working alone in the store.  He was sitting on the ground repairing a shelf at the time Mr Evans ran into the shop.

11On this occasion, Mr Evans was holding a black-coloured bag and brandished the same knife that he had used minutes previously in the earlier armed robbery.  He yelled the words "Money, money, money".  Mr Basit responded by running around the counter to the till and placed the money in the bag.  As this was being done, Mr Evans repeatedly said "Quick, quick, hurry, hurry, 100s and 50s, I need them".

12Once Mr Basit had handed over the money, Mr Evans said "Don't worry, I'm not going to hurt you".  Mr Evans demanded cigarettes, which Mr Basitt also placed in the bag.  When Mr Evans left the store, he jumped on the motorbike with Mr Jovanovic, and they travelled east against the one-way traffic of that street towards Elizabeth Street.

13The total value of the stolen property was $1,316.00, consisting of 12 packets of cigarettes valued at $376.00 and $940.00 in cash.

Charge 4

14As to Charge 4, on Monday 4 December 2017 at approximately 1.33 am, Mr Jovanovic and Mr Evans travelled to the IGA supermarket at 113 Toorak Road, South Yarra, on the same Yamaha motorbike that had been used in the other armed robberies.

15Again, Mr Evans ran into the IGA supermarket armed with the black-handed kitchen knife while Mr Jovanovic waited outside.  Mr Evans was again wearing the motocross helmet with a visor, and carrying a pillow case.  On that night, the attendant Sheikh Amir was working alone in the store.  When Mr Evans pointed the knife at the attendant, he placed his hands in the air and said "Okay".  He then opened the till and placed the cash notes in the pillow case as he was directed.

16Mr Evans hold the knife closer to Mr Amir and told him to go faster as he placed the money in the pillow case.  Once that was completed, Mr Amir was directed to do the same with respect to the second till on the same counter.  Mr Evans then demanded that Mr Amir hand over the cigarettes in the back compartment.  Mr Amir reacted by placing his hands into the air and backed into the corner, telling him to help himself.  Mr Evans then walked around the counter and grabbed a number of packets of cigarettes and placed them in the bag.  As he walked out, he said "Merry Christmas" to Mr Amir.

17Once he left the store, Mr Evans and Mr Jovanovic both fled in the same way on the motorbike.  The total value of the stolen property on this occasion was $1,826.00, consisting of 36 packets of cigarettes valued at $829.20 and $997.00 in cash. 

Summary offences

18With respect to Mr Jovanovic, there was a related summary offence.  Shortly before the commission of the fourth armed robbery on 4 December 2017, Michael Jovanovic was charged with committing some family violence offences, including an allegation of making a threat to kill.  He was placed on bail in respect of those offences and has now pleaded guilty to the additional summary offence of committing an indictable offence whilst on bail.

Impact of offending

19CCTV footage from the incidents comprising Charges 1, 2 and 4 was tendered by the prosecution.  It is clear in viewing that footage that what was done must have had a terrifying effect on the four store attendants subjected to this violence.  They were each working alone, and as such were very vulnerable. 

20Asad-Ali Minhas was working at the Queen Street Ezy Mart on 27 November, and in his statement he speaks of the anger and fear that he felt at being robbed at knifepoint.  He indicates that with the passage of time he has regained some confidence thanks to the assistance of police and other staff at the store, but clearly it has been a very difficult process for him.

21In his statement to police concerning what occurred in respect of Charge 2, Hassan Naddem indicated that he was scared to go back to work after this incident.   

22Chamsel Islam made a victim impact statement in his capacity as the director of IGA Express, South Yarra.  He documents, in respect of Charge 4, the adverse financial impact of the offending on his store.  As a result of the armed robbery, the store has had to change its method of operation, and the main door is now kept closed at night until a customer presses a button to gain entry.  This change, as he described it, has had the effect of reducing customers.

23Whilst there is no specific evidence as to the impact of this offending on Abdul Basit in respect of the third armed robbery, or Sheikh Amir in respect of the fourth offence, I readily infer that they would have been significantly affected by what was done to them.

Personal circumstances

24Turning now to Mr Evans' personal history, he was born on 11 February 1992 and was 25 at the time of the commission of these offences.  He is now 26.  His mother and father were never together, and he was essentially brought up by his mother, and later also by his step-father.  Both his mother and step-father attended at the hearing of the plea, and have visited him regularly in custody, and are clearly supportive of him.

25He has had little to do with his biological father.  Mr Evans has one older sister who has two children of her own.  When he was young, Mr Evans' family moved around a great deal and struggled financially to some extent.  It appears he attended four primary schools and two secondary schools.  In that context, forming friendships was difficult, and was likely exacerbated by an attention deficit disorder, for which he was medicated.

26He told the forensic psychologist who assessed him for the purposes of the plea, Mr Warren Simmons, that his marks at school were not particularly good, and although he was able to read, he has trouble with spelling and handwriting.  Finding it difficult to concentrate resulted in poor relationships with teachers and disruptive behaviour.  He was expelled in Year 9. 

27His work history has been reasonably consistent.  After leaving school, he commenced a pre-apprenticeship in hospitality.  He worked in various jobs including a restaurant and the kitchen of an aged care facility, and ultimately in travelling carnivals for a period of about five years.  Before his imprisonment, he was working building caravans for a period of about two years or so.

28During the period he was working for Travelling Showgrounds, he used methamphetamine on what is sometimes described as a "recreational basis".  When he formed a long-term relationship when he was 23, he ceased using methamphetamine, but resorted to quite heavy cannabis use.  When that relationship ended, he returned to methamphetamine use, which then escalated into heavy abuse.

29Mr Evans' criminal history is limited, in that it consists of graffiti offending to summary assaults and some driving offences.  He told Mr Simmons the psychologist that he needed to fund his methamphetamine use, which had risen up to a gram and a half a day, and that provided the motivation for this offending.

30Psychological testing revealed that Mr Evans had a full-scale IQ score of 94, placing him in the average range of intellectual functioning.  His academic performance at school was therefore far below his potential.

31Mr Simmons formed the view that Mr Evans did not appear to have significant antisocial personality traits, and had stabilised since he went into custody and gained approximately 20 kilograms in weight.

32In his report, Mr Simmons states at paragraph 27:

"With regard to the matters currently before the court, Mr Evans readily admits to what occurred and did not attempt to minimise his actions.  It appears that the first offence was impulsive, but as he needed money for drugs - and he did gain a reasonable amount the first time, he then committed further offences.  Mr Evans expressed remorse for his actions and recognised that they had had an impact on the victims, demonstrating empathy for their plight."

33Mr Simmons goes on to say at p.7 of his report, halfway through paragraph 28:

"With regard to Mr Evans' prospects for rehabilitation, it was noted that there are no significant antisocial personality traits, no prior history of significant offending, and no evidence of psychiatric disturbance.  He has a history of employment and has abilities at a greater level than he previously anticipated.  Consequently, Mr Evans' prospects for rehabilitation are good."

34Mr Westmore, who appeared for Mr Evans, acknowledged at the outset the terrifying effect this offending must have had on the victims.  He suggested that although these armed robberies were carried out on vulnerable targets, the manner in which they were carried out was relatively unsophisticated.  For example, in respect of the first offence, Mr Evans carried no bag of any description for the purposes of having the money and cigarettes placed in it.

35He argued however by reference to answers given in the record of interview and to Mr Simmons report that Mr Evans had shown appropriate insight and remorse.  He had made full admissions at the time of arrest, and had followed through with a plea of guilty at the earliest opportunity at committal mention.  He argued those matters ought to merit a substantial sentencing reduction.

36This was Mr Evans' first time in custody, and Mr Westmore argued that he had responded well.  He had completed three drug education programs and provided clean urines, although the first test revealed cannabinoids at a very low level, which I take to me residual arising from his use before going into custody.  Mr Westmore argued that I should accept Mr Simmons' opinion that Mr Evans' prospects for rehabilitation were in fact good.  I should indicate at this stage that he has good prospects for the reasons set out by Mr Simmons in his report.

37Turning to Mr Jovanovic, he was born on 6 October 1987.  He is 30 years of age.  He had, it seems, a difficult upbringing in the sense that his parents separated when he was eight years of age.  The family had lived in Brisbane, but after the separation his mother moved to Melbourne, and Mr Jovanovic spent a good deal of time moving between both parents in both states.  Apparently, much of his early years lacked a good deal of supervision and guidance.

38He struggled at school, being bullied and making few friends.  He completed Year 9 in Salisbury in Queensland and left school at the age of 16 to commence a plastering apprenticeship.  He was unable to complete the apprenticeship, leaving during the fourth year when he was 19 years of age, and thereafter worked reasonably consistently for labour-hire companies as a truck driver and as a panel beater.

39Mr Jovanovic has had substance abuse problems from an early age.  He started drinking heavily and regularly using cannabis from the age of 13.  From the age of 18, he used heroin for a period of about two years before ceasing.  His criminal history spans a period of seven or eight years, and consists of drug possession, dishonesty, driving and family violence offending.

40On appeal to this court in June of 2016, he was placed on a 12-month Community Corrections Order with treatment and community work components for recklessly causing injury, making a threat to kill and criminal damage, offences involving his former partner.

41I was told that he was breached in respect of that order, because he had not completed a men's behaviour change program.  He had otherwise complied with the order.  The contravention hearing was adjourned to enable him to complete the men's behaviour program, however, he was then remanded in respect of these matters.

42On 7 February this year, the breach was found proven and he was sentenced to seven days' imprisonment.  The matters for which he was on bail at the time of the commission of the fourth offence are now listed, I am told, for hearing in the Magistrates' Court tomorrow, 31 July. 

43Mr Jovanovic's motivation for involvement in this offending also relates to an addiction to methamphetamine.  It seems that became prominent over the last four or five years.  His relationship with his former partner was volatile and deteriorated in the context of both using significant quantities of methamphetamine.  That relationship ceased when he went into custody.

44As part of the material put on behalf of Mr Jovanovic, I received four personal references from his mother, two aunts and his sister.  An impressive feature of Mr Jovanovic's personal circumstances now is the extent of family support available to him.  His mother, who attended the plea hearing, has been visiting him at least once a week and has done so for the last eight months, and together with the extended family, is committed to helping Mr Jovanovic rehabilitate and finally live a constructive life.

45Significantly, Mr Jovanovic has an 11-year-old daughter from an earlier relationship.  He maintains a civil relationship with the child's mother, who also attended the plea hearing.  He hopes ultimately to be able to be more involved in his daughter's life.

46Mr McClure, who appeared on behalf of Mr Jovanovic, adopted Mr Westmore's submissions as to the circumstances associated with the offending.  Like Mr Evans, Mr Jovanovic had made full admissions, he had shown in his answers to police an insight into the harm his actions had caused, and had entered a plea of guilty to all charges at the earliest opportunity.

47Mr Jovanovic has been in custody since 5 December 2017, which is the longest time he has ever been in custody.  He has used that time well in the sense that he says he has been abstinent from drugs, and that is supported by a random negative urine screen.  He has worked as the unit billet, he has completed three rehabilitative programs, including the 24-hour managing ice addiction program, and it was submitted that with the benefit of being able to reflect on where his life has led, with a clear head he now has a real opportunity to turn his life around.

48Having regard to his plea, his evident remorse, the constructive approach he has taken to his time in custody, the fact that this is his first effective prison sentence, and the level of his family support, I am prepared to treat his prospects for rehabilitation as being good as well.

49As to sentence, whilst Mr Westmore on behalf of Mr Evans somewhat tentatively initially suggested that it might be open to impose a combined sentence of imprisonment and a community corrections order, I understood both counsel for these men to recognise, during the course of discussion on the plea, that the only appropriate sentence for four serious armed robberies is one of imprisonment, together with the fixing of a non-parole period. 

50Each counsel, however, emphasised that in their submission, the interests of the community would be well-served by allowing for a lengthy period on parole where these men would be supervised and their rehabilitation better facilitated to the extent that that is possible.

51Ms Burnett, on behalf of the Director, pointed to the serious features of the offending, particular the use of disguise, re-attending at the same premises in respect of Charge 1 and Charge 2, the vulnerability of the store attendants, the harm that they have inevitably suffered, and the formidable weapon that was used in respect of at least the last offence, a photo of which was tendered on the plea.

52Having regard to those matters, Ms Burnett argued whilst rehabilitation had some role to play, it must be subservient and subsidiary to general deterrence, denunciation and the need to protect the community from offending of this type.

53In a note sent to my associate and the other parties after the conclusion of the hearing of the pleas, Ms Burnett states:

"Further to the submissions made at the plea on 17 July 2018, the prosecution ultimately submits that a term of imprisonment with a non-parole period is appropriate for both offenders in the circumstances.  A longer-than-usual parole period may assist with rehabilitation".

54I accept that submission.  It mirrors, it seems to me, the realistic and helpful submissions put by counsel for each of the accused.  Having considered the circumstances of the offending and of each offender, there appears to be little basis for distinguishing between them.  This was joint offending for which they are jointly responsible.  Of the four occasions comprising the offences, each played a vital role, clearly understanding the role that was to be performed by the other.  They each shared in the proceeds.

55Moreover, their subjective circumstances, particularly as to motivation for the offending, remorse and prospects for rehabilitation, are not dissimilar.  It is appropriate therefore in my view that they should each be sentenced to the same terms of imprisonment, save that Mr Jovanovic must be sentenced in respect of the additional summary matter.

56Mr Evans, Mr Jovanovic, would you please stand? 

57Luke Evans, in respect of Charge 1 of armed robbery, you will be sentenced to a term of imprisonment of three years.  Michael Jovanovic, in respect of Charge 1, you will also be sentenced to a term of imprisonment of three years.

58Luke Evans, in respect of Charge 2 of armed robbery, you will be sentenced to a term of three years' imprisonment.  Mr Jovanovic, you will also be sentenced to a term of three years' imprisonment on Charge 2.

59On Charge 3, Luke Evans, you will be sentenced to a term of three years' imprisonment.  On Charge 3, Michael Jovanovic, you will also be sentenced to a term of imprisonment of three years.

60On Charge 4 of armed robbery, Luke Evans, you will be sentenced to a term of three years' imprisonment, and likewise Michael Jovanovic, you will be sentenced on Charge 4 to a term of three years' imprisonment.

61In respect of the additional summary offence of committing an indictable offence on bail, Michael Jovanovic, you will be sentenced to two months' imprisonment.

62With respect to each offender, I will order that 11 months of Charge 1, 11 months of Charge 2 and 11 months of Charge 3 be served cumulatively upon the sentence imposed in respect of Charge 4.

63In respect of Michael Jovanovic, I will order that one month of the sentence imposed in respect of the summary offence be served cumulatively upon Charge 4. 

64In respect of Luke Evans, that makes a total effective sentence of five years and nine months, and I will fix a non-parole period of three years and three months.

65In respect of Michael Jovanovic, that makes a total effective sentence of five years and ten months, and I will fix a non-parole period of three years and four months.

66In respect of Luke Evans, I will declare that 237 days has been served by way of pre-sentencing detention.  In respect of Michael Jovanovic, I will declare that 228 days has been served by way of pre-sentence detention.

67In respect of Luke Evans, I will further declare pursuant to s.6AAA that but for your plea of guilty you would have been sentenced to a period of seven years with a non-parole period of five years.

68In respect of Michael Jovanovic, I will further declare pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a period of seven years and one month, with a non-parole period of five years and one month.

69I will further make orders sought by the Crown with respect to forfeiture, with respect to the provision of a forensic sample, and compensation.