Director of Public Prosecutions v Jovic
[2014] VCC 1443
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00347
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUSKO JOVIC |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-16 May, 2 and 16 June, 24 July 2014 | |
DATE OF SENTENCE: | 1 August 2014 | |
CASE MAY BE CITED AS: | DPP v. Jovic | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1443 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle for trial and plea Mr B. Nankin for sentence | OPP |
| For the Accused | Mr D. Cronin | Turnbull Lawyers |
HER HONOUR:
Indictment number C1208400.2
1 Dusko Jovic, on 16 May 2014, on Indictment number C1208400.2, a jury found you guilty of one charge of common assault, which has a maximum sentence of five years' imprisonment, and two charges of blackmail which is an offence with a maximum sentence of 15 years' imprisonment.
2 I am satisfied as to the following facts from the evidence at the trial, consistent with the verdicts of the jury:
3 i) in November 2011, a man named Marshall Flentjar owed you $1500 for a drug debt;
ii) on 23 December 2011, you went to the house of a man named Dzenan Karamehmedovic, looking for Flentjar. Flentjar was hiding from you, and Karamehmedovic told you Flentjar was not there;
iii) you returned to Karamehmedovic's house later that night and told him that the debt was now transferred to him;
iv) on 25 December 2011, you told Karamehmedovic that he could clear the debt by bringing Flentjar to you, and you arranged to meet that night at a set of shops in Doveton;
v) Karamehmedovic brought Flentjar to the meeting place, but when Flentjar realised what was happening, he began to run away;
vi) you arrived with another male just as Flentjar was running off and you got out of your car and chased him;
vii) you produced a sawn-off shotgun which was seen by Karamehmedovic, while Flentjar saw a long object held by you or the other male;
viii) you returned the gun to your car, and as part of a plan between you and the male accompanying you, Flentjar was hit on the side of the head by you or the other male and he fell to the ground (Charge 1 – common assault);
ix) Flentjar got up and managed to escape, and you asked Karamehmedovic to drive you around to look for him, but Flentjar was not found;
x) you told Karamehmedovic that the debt was now clear, and told him what you had done to hurt many people before;
xi) on 26 December 2011, you rang Karamehmedovic and told him the debt was back on and had increased to $6000 (Charge 2 – blackmail);
xii) you continued to contact Karamehmedovic about payment and said the debt was going up;
xiii) you went to his house some time later and produced the sawn‑off shotgun, telling him that the debt was now $10,000 and demanded that he report his car stolen, make an insurance claim, and pay you $10,000 from that (Charge 6 – blackmail);
xiv) on the night of 4 January 2012, you demanded that he go to an address in Dandenong where a number of men were in the garage, including a man called Michael Kyriacopoulos;
xv) Karamehmedovic was instructed to sit on a chair and you punched him;
xvi) you and Kyriacopoulos stood over Karamehmedovic and you repeated your demands for $10,000, while Kyriacopoulos made his own unrelated demands[1];
[1] In a separate trial, Kyriacopoulos was convicted of blackmail for his own actions.
xvii) after you punched Karamehmedovic, Kyriacopoulos threatened him, including by holding a wrench, and then tapping him lightly on the head with it, and the two of you attempted to drag him out of the garage through a back door; and
xviii) Karamehmedovic was sufficiently frightened by the behaviour of you and Kyriacopoulos to escape by slipping out of his upper clothing and running out of the garage through the front roller door.
4 There are a number of features which make the offences more serious. These are that Karamehmedovic was threatened by you on one occasion in his own home, where he was entitled to feel safe; that you used a sawn‑off shotgun as part of your menacing behaviour towards Karamehmedovic; and that your continuing menacing behaviour in the garage was carried out in tandem with another man making demands reinforced by menaces, which increased Karamehmedovic's fear to such a level that he ducked and slipped out of his upper clothing while the two of you were holding him, and ran through the garage roller door to escape.
5 I am satisfied on the evidence contained in Karamehmedovic's original version to police[2] that you did produce a shotgun on the two occasions I have referred to, even though no gun of any sort was ever located by police when searches were conducted. I note that the references to a shotgun in the original version of Karamehmedovic were connected to the charges on which the jury found you guilty.
[2] See Depositions pp400-402
6 There are no Victim Impact Statements. Flentjar was declared to be an unavailable witness at the trial, and evidence was admitted from an earlier examination of him. However, I am satisfied that at the very least, at the time of the events, Flentjar was hit hard enough to knock him to the ground, and frightened enough by the whole event to run away. Karamehmedovic was not a cooperative witness at the trial, and his evidence was given under the law relating to unfavourable witnesses. However, I can act on the evidence given in the trial by another witness[3], and therefore I am satisfied that at the very least, at the time of the events, Karamehmedovic was frightened by the actions of you and Kyriacopoulos at the garage. I am also satisfied on the evidence contained in his original version to police[4] that he was sufficiently frightened by your threats to move out of his home to stay first at his then girlfriend's house, and then at another friend's house in order to avoid you.
[3] Modestos Artopios
[4] See Depositions pp400-402
7 I also acknowledge what has been recognised by the Court of Appeal that:
"Blackmail is an offence that is frequently hard to detect, especially where, as in this case, the perpetrator preys, or attempts to prey, on the fear that his conduct inspires"[5] -
[5] R v Son Vo (unreported, Court of Appeal 14 May 1998) at p4
and that:
"It is essential that those who have the courage to report the offence -
- which Karamehmedovic originally did -
"or to give evidence for the Crown know that their efforts will not be wasted and that the offenders will be appropriately punished."[6]
[6] Ibid at p5
Indictment number C1208400.5
8 On 2 June 2014, you pleaded guilty to three charges on Indictment number C1208400.5. The first is a charge of theft which has a maximum sentence of 10 years' imprisonment; the second is a charge of intentionally causing injury, which also has a maximum sentence of 10 years' imprisonment; and the third is a charge of blackmail, which has a maximum sentence of 15 years' imprisonment.
9 I take into account that you have pleaded guilty to these charges and that you have spared the community the time and cost of a trial. Although these charges were resolved to a plea of guilty only on the day the trial was due to start, I accept that this was the first time that the offence of intentionally causing injury, as opposed to causing serious injury, was put. I also accept that by your plea to these offences, you have accepted responsibility for your actions and shown a degree of remorse. As a result of these factors, the sentences on these charges will be less than would have been imposed if you had been found guilty after a trial.
10 An agreed summary was read out by the prosecutor[7], and I proceed to sentence you on the basis of that summary.
[7] Exhibit A
11 In brief, in early March 2012, the victim, Andrew Robertson, owed some money to two men, Bane Alajbegovic and Bekim Sulemani. Robertson obtained a laptop to sell in order to meet his debt to these men[8]. You agreed through a friend to buy the laptop, but when you found it did not work, you demanded that Robertson come to your house.
[8] Alajbegovic and Sulemani pleaded guilty to recklessly causing injury and assault respectively in relation to the same victim over this debt.
12 When he did, you searched his car and stole his mobile phone, wallet and cigarettes (part of Charge 1 – theft). The phone rang and you answered it and discovered the caller was Alajbegovic, who is a friend of yours. You told him to come to your house and he and Sulemani arrived a short time later.
13 You took Robertson's car for a “test drive” (part of Charge 1 – theft) and when you returned, you took a baseball bat out of the car. You then assaulted Robertson by hitting him in the mouth with the bat while he was seated on your couch, punched him, and abused him for bleeding on your couch (Charge 2 – intentionally causing injury).
14 You punched and threatened him further, and then demanded $5000 and his car be given to you, and $2000 for Alajbegovic, giving Robertson until midnight to pay (Charge 3 – blackmail). You arranged for your friend to drive Robertson home, while you kept his car and his other belongings (part of Charge 1 – theft). Your telephone calls were intercepted by police over the next few hours and you were heard to be discussing the amount Robertson owed you and the injury you caused him.
15 The charge of theft is a rolled-up charge containing a number of items you stole from Robertson. The offences of causing injury and blackmail are made more serious by your use of the bat as a weapon to cause the injuries, an act which is also part of the menacing behaviour that you engaged in to frighten Robertson into complying with your demands for money.
16 There is no Victim Impact Statement from Robertson. However, I do not need one to recognise that he suffered considerably as a result of your actions. Apart from fearing for his life when he was in your house[9], he sustained an injury which I am satisfied is at the higher end of the scale. His parents called an ambulance when he arrived home that night, in pain and unable to open his mouth. He received multiple cuts to his mouth and lips, and three broken teeth[10]. He needed root canal treatment, with crowns put on two of the teeth, and the third was able to be rebuilt. I take this impact on him into account in deciding the appropriate sentence.
[9] See Depositions p394 para 41
[10] See Depositions p394para 40, pp1373-5
17 I acknowledge here too the remarks previously referred to by the Court of Appeal in respect of blackmail offences[11].
[11] Paragraph [7] above
Criminal History
18 You are now aged 25 and at the time of the offending, you were aged 22 years. For a young man, you have a very bad criminal record, although most of your appearances have been in the Children's Court. In eight appearances between 2005 and 2009, you have been dealt with for aggravated burglary (two charges), recklessly causing serious injury, intentionally causing injury (three charges), recklessly causing injury (three charges), assaults (six charges), possession of weapons, dishonesty offences and multiple driving offences. Other than the driving offences, they are all relevant to the sentence I am imposing today.
19 In June 2009, you appeared for the first time in the County Court, charged with two charges of aggravated burglary and one charge of intentionally causing injury, and had an appeal from the Magistrates' Court heard at the same time. You received a sentence of imprisonment with a non-parole period. You apparently completed a number of months on parole during which you worked as a painter, did not reoffend, did not take drugs, and completed the required drug and alcohol counselling. Your counsel submitted that after parole was completed and the structure of parole was removed from your life, you began using drugs again, and eventually reoffended. He relied on your success during that parole period to submit there should be a lengthy parole period in this case.
History of drug use
20 It is appropriate at this point to refer to your history of drug taking.
21 According to the report of psychologist David Ball dated 22 April 2008[12], you said you had been using methamphetamines at the time of offending against a girlfriend in 2008, which affected your thinking, and gave you hallucinations and severe paranoid delusions. You told Mr Ball that you understood that use of illegal drugs could make you mentally unwell.
[12] Part of Exhibit 2
22 According to the report of psychiatrist Dr Mark Ryan dated 4 July 2008[13], you indicated that you had abused amphetamine-based substances over the previous year or two, had also used cannabis and mushrooms, and although you first consumed alcohol at the age of 13, you said it has never been a problem for you. You told Dr Ryan that during periods of heavy drug use, you felt "paranoid" and that other people recognised that you did not act "normal" as you would talk "bullshit" and become more easily angered. You also told him that you would do your best to avoid drugs in future.
[13] Exhibit 5
23 It seems that you were attempting to withdraw from drug use in the weeks following the assessment by Dr Ryan on 4 July 2008. On 2 August 2008, you attacked two residents of a boarding house where you were then living[14], and according to the report of psychologist Ian McKinnon dated 20 February 2009[15], you told him that you had gone almost three weeks without "ice", were on edge and easily angered, and according to you, the other residents were making noise and disturbing you.
[14] The subject of the two charges of aggravated burglary.
[15] Exhibit 3
24 As to your other drug use, you told Mr McKinnon that you had also experimented with cocaine and GHB, but not heroin.
25 According to the second report of David Ball dated 18 July 2014[16], you said that you have been addicted to amphetamines and methylamphetamines since you were aged 16 years, and have also used MDMA and cannabis on occasions since that age. You told him that you first consumed alcohol at the age of 15, and had a pattern of binge drinking on weekends.
[16] Part of Exhibit 2
26 In my view, comments made by you in these reports show that you have been aware for a number of years of the bad effects that drugs, particularly "ice'" have on you, and you recognise that all of your offending has been as a result of your addiction to that drug.
Personal circumstances
27 I have been told something of your personal history and circumstances from the Outline of Submissions[17] of your counsel, and the reports of Dr Ryan, Mr McKinnon and Mr Ball.
[17] Exhibit 1
28 You were born in 1989 in Croatia to Serbian parents and have an older brother. When war broke out in the Balkans, your family moved to Serbia, and later to Kosovo. You witnessed the fighting and bombing from a very young age. Your family spent 10 years in a refugee camp before migrating to Australia when you were aged about 13. You went into year 7 in Australia, which was difficult for you, particularly as you did not speak much English.
29 There was violence in the family, and not long after you arrived in Australia, your parents separated and then your brother left home too. You and your mother did not get on well either, and eventually you left home at the age of 16, and began living with friends. I note this is the age you say you became addicted to amphetamines and methylamphetamines.
30 At age 17, your criminal record began in the Children's Court. With your disconnection from your parents at age 16, in a country to which you came as a 13 year old after a disturbed childhood, living an unstable lifestyle with antisocial youth and adults on the margins of society and developing a methylamphetamine dependence, it is really no surprise that at the young age of 25 years, you have spent most of the last five or six years in prison.
31 Mr McKinnon in his 2009 report refers to you having contact with your brother, who was then visiting you in prison, but there was no reference by anyone to your brother keeping up that contact recently.
32 Despite the difficult relationship you have had with your mother, she has re‑established contact with you since you have been in custody on these offences, which has been from the time of your arrest on 20 March 2012, and she was in court to support you. Your counsel told me that it is her view that you need help to deal with the fallout from your traumatic experiences as a child, through the war, and as a witness to and victim of family violence.
33 It is not clear to me what your work history is. Mr Ball reported in 2008 that you had no work history. Dr Ryan in 2008 said your experiences with work were limited. In 2009, Mr McKinnon reported that after leaving school at about 15, you worked at a fast food outlet for six months, and then in a clothing factory for a few more months, and that as at February 2009, you had an offer of work and accommodation from what he described as your "only close friend", a person who apparently visited you regularly in prison called Alajbegovic, to whom I have previously referred as being involved in the matter where Robertson was the victim. In 2014, Mr Ball reported that you had worked as a painter in 2010-2011, and this was confirmed by a letter from your employer at that time, who gave you a good work reference and said he was prepared to re-employ you full time[18]. Your counsel said that this work occurred during your period of parole. I note that when asked in court for your occupation, you said "painter".
[18] Exhibit 4
34 I turn now to the question of whether you suffer from a disorder that impaired your mental functioning at the time of the offending.
35 In April 2008, you were assessed by Mr Ball as having a full scale IQ of 72, meaning that your intellectual functioning is in the lower level of the borderline range and is considered a significant intellectual impairment. Mr Ball formed the opinion that you will always have difficulty planning and executing behaviour, gaining insight, and being able to foresee the consequences of your actions, and that learning from previous experiences will be beyond your capacity. He considered that your general reasoning capacity would be barely enough to allow you to function in the wider community, and that you have language deficits probably related to your poor education and lack of English language skills.
36 In his July 2008 report, Dr Ryan made no mention of an intellectual impairment.
37 In October 2008, you were assessed by the Department of Human Services' Disability Client Services as having an intellectual disability with extremely low to borderline intellectual functioning[19]. You are therefore eligible to receive services to assist you, although I have not been told that you have received any such assistance.
[19] As noted by Mr McKinnon – see Exhibit 3 p4
38 In his February 2009 report, Mr McKinnon noted Mr Ball's assessment, and the assessment of Disability Client Services, but stated that he was not convinced that these assessments accurately reflected your intellectual functioning. In his opinion, your lack of formal education and basic English speaking skills as well as your drug use may have contributed to the low assessments, and in his view, you have average functional intelligence. He did agree with Mr Ball that your lack of English language skills and formal education significantly hamper your daily living skills and the ability to formulate and pursue work and social goals.
39 Two weeks ago, Mr Ball reassessed you and found your full scale IQ to be 63, which he described as being in the moderately retarded range. He said the difference from the higher 2008 result may be explained by your long‑term drug abuse leading to a "creeping decline" in your cognitive functioning. You have been in custody for over two years, and have apparently completed a drug relapse prevention course. It is likely that you have not used any illicit drugs in that time and you are not on any prescribed medication. The possible decline in your cognitive functioning in that setting, away from drug abuse, would be of concern.
40 In his recent assessment, Mr Ball confirmed his earlier opinions, and added that in his view, you also have a number of what he called schizoid and antisocial personality features, described in detail in his report[20]. He considered your intellectual impairment to be congenital rather than acquired, and therefore, a lifelong disability. He was aware of Mr McKinnon's different view of your level of intellectual functioning, but declined to comment on it.
[20] Exhibit 2, Report of 18 July 2014 p5
41 I note that both Mr Ball and Mr McKinnon seemed to have a copy of your Department of Human Services (DHS) Client Overview Report[21] dated 20 October 2008, which generally accompanies a DHS Statement of Disability. I have not seen that and so do not know the basis of that assessment.
[21] Called a 'Justice Plan' in Mr McKinnon's report.
42 Considering all this material, I am satisfied that you do have an intellectual impairment, and that you were suffering from it at the time of the offending, although I am unable to form a conclusion as to what level of functioning you have. However, I am not able to be satisfied that your intellect impairment was the only factor affecting your ability to make calm and rational choices and exercise appropriate judgment. Your long-term drug abuse played a significant role, and you were drug affected throughout all of the offending for which I am to sentence you today. Further, although Mr Ball described your insight as minimal, it is clear from all the reports that you knew very well the effect that drugs, particularly methylamphetamines, have on you, and that all your offending arose from drug taking. Also, your personality defects are a significant contributing factor.
43 I have carefully considered whether your intellectual impairment reduces the moral culpability of your offending conduct. In the end, for the reasons I have just given, I am not persuaded that it does. For the same reasons, I am not satisfied that the impairment to your mental functioning moderates either general or specific deterrence as a sentencing consideration. I note that your counsel submitted that your impairment was not really the cause of the offending, but gives an explanation as to why you acted in the way you did.
44 General deterrence is of great importance in cases of blackmail, and here there are three such offences. Further, Mr Ball's assessment paints a picture of a young man whose difficulties are likely to continue without treatment for drug addiction and personality defects, which are problematic given the intellectual impairment, and so protection of the community, as well as specific deterrence may also be significant, and certainly not moderated.
45 On the other hand, your intellectual impairment is a matter of considerable relevance in explanation of your circumstances, and the offending, and I take it into account.
Rehabilitation
46 As the bases for a submission that with treatment, there must be a chance for your rehabilitation, your counsel relied on the facts that you successfully completed parole; that you are still a young man so there is time to change your life; that you do have some support from friends who attended court, including the possibility of a new relationship, despite you being in prison; and you have reconnected with your mother.
47 I find that there is a chance of rehabilitation for you, but it will require intensive structure around you when you are back in the community, to deal with your antisocial personality disorder and your drug addiction, as well as provide employment and stable accommodation options, and will also require commitment from you, which may be difficult for you to keep up. But you must know by now that if you start taking drugs again, soon it will be heavy drug use, your life will fall apart again, you will commit more offences, and you will spend more time in prison. That is not a happy prospect for a young man aged only 25 years, who has already spent a long time in prison.
48 I must also consider the question of protection of the community from you and bear in mind the likelihood of your reoffending, which I find is a high risk, but is a risk that is lessened if you remain free of drug abuse and receive treatment for your drug addiction and personality disorder.
Delay
49 I accept that there has been some delay in your cases being finalised. Your trials[22] were in a series of other trials not all of which you were involved in, but which were listed to be heard one after the other. As a result, your matters have been heard later than might otherwise have been the case, and I take that delay into account in your favour.
[22] Jovic was acquitted in a second trial.
Disposal order
50 The prosecution also applied for disposal of a number of items. You have not opposed that application and I have signed the order.
Findings
51 The prosecutor submitted that the sentences I impose on you should reflect that you blackmailed two victims, and so there should be significant cumulation between those charges. Mr Doyle conceded that while the two blackmail offences against Karamehmedovic were very serious, they were part of a course of conduct over a couple of weeks, and therefore some concurrency between those charges is appropriate. He also conceded that there was some overlap between the assault on Robertson and the menacing behaviour you exhibited towards him, but this was serious behaviour, and so he submitted there should be some cumulation between those charges.
52 On your behalf, Mr Cronin submitted that it was very important that the total sentence I impose on you properly reflects all your offending, but also recognises your young age and prospects for rehabilitation and is not a crushing sentence in all the circumstances. He submitted that a long parole period was appropriate.
53 I agree with all these submissions of both counsel.
Sentence
54 You are convicted and sentenced as follows:
55 On Indictment number C1208400.2:
56 Charge 1 – common assault – 12 months' imprisonment.
57 Charge 2 – blackmail – three years two months' imprisonment.
58 Charge 6 – blackmail – three years six months' imprisonment.
59 Charge 6 on this Indictment is the base sentence. I direct that six months of the sentence imposed on Charge 1 and four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 6 and on each other. That makes an effective sentence of imprisonment of four years four months on this Indictment.
60 On Indictment number C1208400.5:
61 Charge 1 – theft – 10 months' imprisonment.
62 Charge 2 – intentionally causing injury – two years six months' imprisonment.
63 Charge 3 - blackmail – three years' imprisonment.
64 I direct that two months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3 and on each other. That makes an effective sentence of imprisonment of three years five months on this Indictment.
65 I direct that 18 months of the sentence imposed on Indictment number C1208400.5 be served cumulatively on the sentence imposed on Indictment number C1208400.2. This makes a total of five years 10 months' imprisonment in respect of all offences for which you are being sentenced today.
66 I direct that you serve a minimum term of three years before becoming eligible for parole.
67 I declare that you have served 803 days in pre-sentence detention not including today and these are to be deducted administratively from your sentence.
68 If you had not pleaded guilty to the charges on Indictment number C1208400.5, but been found guilty of these offences after a trial, the total sentence I would have imposed on those charges alone is five years' imprisonment with a minimum term of three years.
69 On Charge 1 on Indictment number C1208400.5, which includes theft of a car, I order that under s.89(4) of the Sentencing Act, any licence held by you is cancelled and you are disqualified from obtaining a licence for two years from today.
70 Mr Cronin, I understand that you will see Mr Jovic at lunchtime today?
71 MR CRONIN: Yes, Your Honour. If he's taken before then, then we've arranged a telephone conversation later today.
72 HER HONOUR: Yes, all right. Thank you very much. Mr Jovic, Mr Cronin will be in touch with you, either in person or by phone. Thank you. Mr Jovic may be removed. I thank counsel once again for their assistance in this matter.
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