Director of Public Prosecutions v Kalic

[2019] VCC 1066

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02081

DIRECTOR OF PUBLIC PROSECUTIONS

v

SLAVKO KALIC

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 July 2019
CASE MAY BE CITED AS:	DPP v Kalic
MEDIUM NEUTRAL CITATION:	[2019] VCC 1066

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hammill
For the Accused	Mr D. McGlone

HER HONOUR: 

1Slavko Kalic, you have pleaded guilty before me to nine charges of theft and one charge of knowingly dealing with the proceeds of crime. 

2The facts underlying your offending are as follows: the offending took place between 13 October 2011 and 26 October 2017. 

3At the time you were employed by Citywide Service Solutions Pty Ltd as a meter technician, which employment you had held since November 1998.  Citywide provides services to local councils, which include the maintenance of parking meters for about 11,650 fee paying parking bays in the city of Melbourne.  Citywide workers such as yourself were issued keys to access the internal sections of parking meters.  You were not authorised, however, to collect the cash boxes, which is undertaken by a different contractor.  If cash boxes are removed or require handling during maintenance, Citywide workers are supposed to record the removal and replacement with a fresh cash box with a barcode scanner.  If workers encounter loose coins inside the meters when repairing them, they are required to place those coins in a calico bag and return them to the Citywide head office, where they are receipted.  Citywide workers are also required to record the work they complete in a diary.

4In September 2017, Citywide engaged the services of a private security firm to investigate the apparent removal of coins from parking meters prior to collections.  They were also engaged to conduct surveillance on Citywide employees.  It was discovered that many of the meters attended whilst under surveillance were not recorded or were falsely recorded in the diary, their barcodes were not scanned with the barcode meter and there were no records showing receipt of loose coins from the metres. 

5On 28 September 2017, private investigators saw you and another employee of Citywide, Paul Scarpino, working together in Flemington Road.  There,
Mr Scarpino was seen removing the cash box from a car parking meter and placing it in the Citywide van, which he drove back to the depot in North Melbourne.  You later removed the cash box, covered by an item of clothing and put it in the Citywide car that you used to travel to and from work.  You drove that car to the Williamstown branch of the Bank of Melbourne, where you transferred the contents of the cash box in a canvas bag and wheeled it into the back on a trolley.  You spent about 15 minutes in depositing the contents of the cash box into an account in your name, using an ATM coin deposit machine.  You then left the bank and account records obtained under warrant showed that an amount of $1,595.80 was deposited that day.  Those actions underlie Charge 8 on the indictment, a charge of theft.

6This was one of a number of thefts you made from City of Melbourne parking meters between 2011 and 2017.  You always deposited the proceeds into your bank account, which was opened in August 2011.  Between 2011 and 2017, you deposited a total of $170,436.10 stolen from parking meters into that account.  The deposits varied in amount from, on one occasion, $26.60, to several thousand dollars.  Deposits were made to a number of Bank of Melbourne branches, including Camberwell, Kew and Prahran.  Predominantly however you attended the Williamstown branch.

7During the investigation, two other Citywide employees, James Millis and Christos Raptis were also seen by investigators to remove cash boxes from meters.  Mr Millis later told police in a statement that in October 2017, he and Raptis were having lunch with you and that you told them that you had been taking cash boxes in the past and you told Millis and Raptis to bring you the coins and you would convert them to notes and pay them their cut. 

8On November 1 2017, police attended the Citywide depot in North Melbourne and arrested you, Millis, Raptis and Scarpino.  Millis and Raptis each had $820 in cash on them, which Millis said they had received from you earlier that day, being their cut from an earlier theft. 

9You also pleaded guilty to a summary charge of possessing a prohibited weapon, which was uplifted for hearing on the plea, pursuant to the Criminal Procedure Act.  Police executed a search warrant on your premises, where they found an extendable baton and baton torch in your work vehicle and an extendable baton at your residence, these all being classified as prohibited weapons and you not having an exemption or approval to possess them. 

10On 1 November, the day of your arrest, you were interviewed by police and admitted to stealing coins from the City of Melbourne meters, saying that you had been financially struggling in previous years and were desperate.  You said you could not remember how long it had been going on and would not elaborate on the process of what you did.  You otherwise made fairly evasive answers to questions.  You said that Mr Scarpino was not aware of the offending and had no involvement, nor was Mr Raptis and that you had not had much to do with Mr Millis.  In other words, you refused to give any evidence about the three other people involved.  You said that you had opened the Bank of Melbourne account because you had maxed-out your credit card.  You also told police you had a side business of selling pinball machines, saying that you had sold between eight to 12 of those between 3 and $5,000 each and that you were paid in coins. 

11Mr Raptis had been employed for two and a half years before the offending was discovered.  He made a 'no comment' record of interview and pleaded guilty to a charge of theft of $5,267.80, and was sentenced to a six month bond with conviction. 

12James Millis had been employed by Citywide as a labour hire worker since May 2017.  He made a cooperative record of interview, saying that he had been, you know, emptying meters with Mr Raptis for the past six weeks, that they then divided the contents, gave the coins to you, you converted them to notes and gave the money back to them.  He was placed on a six month bond without conviction. 

13Paul Scarpino had been employed by Citywide since 2008 and at the time of the offending was an acting team leader.  He also gave a 'no comment' record of interview.  Ultimately the charges against him were withdrawn for lack of evidence. 

14You pleaded guilty at the committal mention stage, which had been adjourned on several occasions for negotiations, the negotiations essentially being around the total amount said to have been stolen by you.  This is regarded as an early plea. 

15The maximum penalty for theft is 10 years' imprisonment.  The maximum penalty for knowingly deal with the proceeds of crime is 15 years' imprisonment and the maximum penalty for possessing a prohibited weapon without exemption is two years' imprisonment. 

16Charge 9, the charge of knowingly possessing the proceeds of crime - is that based on an amount found on - it does not seem to be in the summary.

17MS HAMILL:  Your Honour, it's the amount that was deposited into the - my apologies, Your Honour.  It is the amount of coins that were found during execution of the search warrant, so the loose coins that weren't in an account. 

18HER HONOUR:  Where were they found?

19MS HAMILL:  In the house in various locations. 

20HER HONOUR:  All right.  So, police, in executing the search warrant, also searched your home, where various coins totalling $2,183.80 were located. 

21I now turn to your personal circumstances.  You are aged 50.  You have no prior or subsequent convictions.  You were born in Austria whilst your parents were en route to Australia from the then Yugoslavia, specifically Croatia, they intending to settle here which they ultimately did.  Your mother worked as a machine operator and your father worked as a steel engineer.  You have one younger brother, about eight years younger than you, who is a mechanic and married with two children.  Your parents separated about 16 years ago. 

22You told psychologist, Warren Simmons, whose report is dated 24 June 2019 and was tendered on the plea, that your parents, and particularly your mother, were extremely controlling and you were not allowed to mix with anybody other than persons from the Croatian community who had settled in Australia.  Your parents were also strict Catholics. 

23You reported little difficulty at school apart from some mild bullying.  You attended Altona North Technical School.  You completed Year 11, attempted Year 12, but failed because you took different subjects you had not undertaken before.  You then worked for a while for a bank in debt collecting but left that job in order to take up a more technical position as an electronic technician at a bowling company.  You held that job for about three years.  You told
Mr Simmons you loved it and worked there thereafter until 1998, when you began your employment with the City of Melbourne, working in similar jobs, have never been unemployed and were never in receipt of unemployment benefits. 

24Whilst you were working at the bowling alley, you met your girlfriend who was not Croatian and not Catholic and the relationship was vigorously opposed, in particular, by your mother.  You took a stand, however, and left home.  That relationship lasted for 12 years.  At some stage you decided to reconnect with your parents.  Your mother never accepted your partner, she did everything she could to interfere with it, including offering your partner money to leave the relationship.  Eventually it got to the stage that your partner would remain in her bedroom when your mother visited.  This put great stress on the relationship and ultimately it ended.  You told Mr Simmons that for a period of about eight years, you then dated sporadically, but have never since formed another relationship.

25It appears, from what I could glean from Mr Simmons' report, that in the demise of your relationship and your failure to re-partner, your social life and friends became extremely important to you.  I do not quite understand how this happened, but apparently you were living in a unit and over time this became a sort of social hub for your friends on weekends, where you provided both food and alcohol. 

26You purchased a house in 2007 and for some reason, perhaps it was a change of location, that group of friends no longer featured in your life and you began socialising fairly heavily with friends from work, again, offering the same sort of services, if you like, to that group of friends, in the form of alcohol and food.  It appears you have never had a drug or alcohol problem of any note, nor have you had any mental health difficulties.

27Over the years you supplemented your income, which was somewhat eroded by the need that you felt to entertain lavishly on weekends in order to maintain friends, by renovating pinball machines, which you would sell to various arcades.  However, the growth and legalisation of poker machines led to a lessening in demand for that type of machinery and that type of retro item and it would appear that by 2011, this lavish entertaining, which appears to be the only evidence of enrichment of your activities, was eating into your income. 

28You told Mr Simmons that you began offending in the way that you had because you heard talk of it amongst other Citywide employees, and it would appear that this has been an activity to your understanding which had been ongoing for some time, although not uncovered by Citywide until you, yourself, became involved in it.  Thereafter, you simply kept going and as was pointed out by the prosecution, your offending increased over time, no doubt because you became more confident that your activities would remain undetected.

29It was Mr Simmons' view that, as I have said, this offending was motivated by what he described as you developing a strong need to be liked and maintain multiple friendships because of the life arising.  It would it would seem from the restrictions placed on you, particularly in your adolescence by your parents, on forming social interaction.  He stated:

'He saw an opportunity to obtain additional money and it appears to have been in this context that he offended.'

30Importantly, Mr Simmons stated:

'In discussing his offending, it was clear that the fact that others were engaging in such behaviour in his mind legitimatised him acting in a similar manner, although he did not use this as an attempt to escape responsibility for his behaviour, for which he accepted complete responsibility.' 

31He also stated that:

'To some degree, it appears to be the case that because the offending was against a more amorphous entity such as the City Council and not an individual, that Mr Kalic did not perceive this as harming an individual.  Nevertheless, he acknowledged that his behaviour was always wrong and inappropriate.'

32It was Mr Simmons' view that there were no specific interventions that were required to decrease the likelihood of your offending.  He said:

'It was felt that there was a particular set of specific circumstances in someone who has no significant anti-social personality traits and certainly recognises his behaviour was wrong and inappropriate.  There is no evidence of drugs, gambling or other problem behaviours contributing to his offending behaviour, but rather a need to maintain friendships and support his financial circumstances.'

33He believed you would benefit from seeing a psychologist to help you explore issues in your relationships and your need for friendships, ‘particularly as it seems to stem back to his early family life.’

34It was his view that your offending was the result of a particular set of circumstances and would only occur if those circumstances were present again.  He said:

'Mr Kalic does have prospects for rehabilitation and appears remorseful, with few anti-social personality traits.'

35Though overall I am satisfied that you are an otherwise
law-abiding, pro-social person, who because of a particular set of circumstances, began what I am also satisfied, you regarded as quite benign offending, which had been carried out, as far as you knew, by other people over a long period of time.  That is, the wrongness of it, to a large extent, escaped you.  I am satisfied it became a habit and that it was a habit that increased over time. 

36I am also satisfied that you are unlikely to re-offend.  You have no prior convictions and you have an excellent work history.  However, the problem is that offending such as yours, against a public entity, is in fact extremely serious.  The capacity for exploitation of an important and legitimate means of fund raising by the council which is responsible for carrying out a number of services to the community, is very much undermined by activities such as yours.  Therefore, the principle of general deterrence is particularly important, that is, a disposition which sends out a message to other people who might be inclined to act in the same way as you, that they would be dealt with sternly by the courts.

37It was submitted to me by the prosecution that I should deal with you by way of a term of imprisonment to be immediately served and that that term was not one which would allow for the imposition of a combination disposition, that is, the imposition of a sentence of imprisonment, combined with a community corrections order.  I can only make such an order if the term of imprisonment
I impose is no more than 12 months. 

38I was referred to a number of other authorities.  In my view, they are different in significant ways, as is very often the case.  Mostly they involved significant frauds perpetrated upon employers by person engaged in a position involving some sort of financial trust, that is, involving the finances of that organisation, such as being an accountant, being a financial manager, being in charge of payroll and so forth. 

39I have said that I am satisfied that you are an otherwise law-abiding man who, for understandable although by no means excusable reasons (you are too old for this, Mr Kalic, to be worrying so much about friendships that you decided the only way you can keep them is by lavish entertaining in your home).  Really that is something that is simply not acceptable for a man of your age, but that you knew that others had done it, you did it yourself, you got away with it for six years and you kept going. 

40Now, as I have said, the problem is that the court is bound to protect entities such as the City of Melbourne.  It was a breach of trust of your position.  I do, in my view, have to deal with you by way of some imprisonment to be immediately served.  However, for the reasons that I have already explained, which is your otherwise good background, the circumstances of your offending, your early plea of guilty and my satisfaction that you are remorseful for your offending, it is my view that I can deal with you by way of a combination sentence.  That is, a term of imprisonment, which will be combined with you being placed on a community corrections order with considerable work hours. 

41I note that you are in a position to recompense the council, not because of the moneys that you stole, but because of an inheritance from your father, which is still in the bank.  And so I intend to sentence you as follows: 

42Could you stand up please.

43On Charge 1, you are sentenced to one months' imprisonment.

44On Charge 2, you are sentenced to two months' imprisonment.

45On Charge 3, you are sentenced to two months' imprisonment.

46On Charge 4, you are sentenced to one months' imprisonment.

47On Charge 4, you are sentenced to two months' imprisonment.

48On Charge 6, you are sentenced to four months' imprisonment and will be released on a community corrections order for two years. 

49On Charge 7, you are sentenced to four months' imprisonment and will be released on a community corrections order for a period of two years.

50On Charge 8, you are sentenced to one months' imprisonment.

51On Charge 9, you are sentenced to one months' imprisonment.

52The base sentence will be the sentence imposed on Charge 6, four months. 

53I order that two months of the sentence imposed on Charge 7 and two weeks of each of the remaining charges, that being Charges 1, 2, 3, 4, 5, 8 and 9, be served cumulative to the charge imposed on Charge 6 and all other charges. 

54That should give a total effective sentence of eight years and two - sorry, eight months, I am sorry, and two weeks.

55On your release, you will be required to undertake a two year community corrections order. 

56I will explain to you what that involves, because I may only place you on such an order with your permission. 

57The conditions of that order are that:

·Within two working days of your release from prison, you must report to the Community Corrections office.  That will be at - I am sorry, I should add, you have been found suitable for placement on that order.  At Werribee, so that is within two working days; 

·While you are on the order, you must not commit another offence punishable by imprisonment.  What that means, sir, that you do not have to be sentenced - a sentence of imprisonment and be sent off to gaol, it means that if you commit an offence for which you could be gaoled, like knocking off a box of matches from Woolworths, that would constitute a breach; 

·Whilst you are on the order, you must not leave Victoria without the permission of the Community Corrections office;

·You must report to and receive visits from the Community Corrections office;

·You must report any change of address or employment within 48 hours of the making of this change;

·You must not attend upon the Community Corrections office under the influence of drugs or alcohol; and

·You must obey all lawful directions of the Community Corrections office.

58I am going to order that you undertake 250 hours of unpaid community work; and

59You are to attend for assessment and treatment of mental health difficulties. 

60All right, are you prepared to enter this order?

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  Thank you.  Have a seat, sir. 

63MS HAMILL:  Your Honour, I didn't make a note of Your Honour's sentence in relation to Charge ‑ ‑ ‑

64HER HONOUR:  For the - sorry, on the summary charge of possession of those weapons, you are quite right. 

65You are sentenced to one months' imprisonment, which are sentences to be served concurrently. 

66MS HAMILL:  And also, Your Honour, Charge 10, which was the proceeds charge.

67HER HONOUR:  I thought there was only nine.  I thought 9 was the proceeds of - I beg your pardon.  So Charge 9 is also two weeks.  I beg your pardon, I have complete - as usual.

68MS HAMILL:  I think that Your Honour had indicated one month in relation to Charge 9 and is it two weeks in relation to Charge 10, Your Honour?

69HER HONOUR:  Yes, two weeks ‑ ‑ ‑

70MS HAMILL:  That is the proceeds.

71HER HONOURCharge 10.  I beg your pardon.  And that will be - hang on.  Yes.  I think I have mucked this up.  Maths was never my strong suite, Ms Hamill, I confess that.  Now, all right, so there is 10. 

72MS HAMILL:  There is 10 charges on the indictment, Your Honour, Charge 1 and 9 of theft.

73HER HONOUR:  Yes, you are right.  You are right.  I have got that muddled up, I beg your pardon.  So in fact it should be - so that will make it - yes, so - and Charge 10 will be one month and two weeks of that, so it should be nine months.  And he will get two weeks on the summary charge and that will be served concurrently.  All right?

74You look very disappointed, Mr Kalic and I am sorry, but ‑ ‑ ‑

75OFFENDER:  Your Honour, can I just speak?  I'm not disappointed, I'm just disgusted in myself in the whole process of - I'm in fact happy in your decision.  Whatever your decision was, I accept my responsibilities and I will do what needs to be done to move forward and I'm sorry what I've done to everybody, the courts, to the council, to my ex-employer, my family's destroyed over it.  Regardless of me, I'll be in a mess, but I'll move forward and like you said, it's the honest truth, Your Honour, I've never done nothing before and I can guarantee, you'll never see my ugly head here again.

76HER HONOUR:  I know.  I am absolutely confident I will never see you again.

77OFFENDER:  I can guarantee you that, Your Honour.

78HER HONOUR:  Yes.  And I - as I said, I am - yes, it doesn't surprise me that that is your response, sir.  You know, but you know, as I said, ordinarily had you not succumbed to offending in this way, you're not the sort of person I would ever have expected to see before this court.  But, it is a significant source of income, there is a particular amount of trust placed in persons like yourself in servicing those parking machines and people in the same position as you do need to understand, if they are going to abuse that trust, this is how the court is going to respond.

79All right, so thanks, Mr Kalic.

80OFFENDER:  Thank you, Your Honour. 

81HER HONOUR:  We will get the documentation.

82MS HAMILL:  Your Honour, the only other aspect ‑ ‑ ‑

83HER HONOUR:  I do have to do 6AAA, do I not, because there is a gaol sentence involved? 

84MS HAMILL:  Yes, Your Honour.  There was also an application for the taking of a forensic sample, which I understand was not opposed. 

85HER HONOUR:  I am not going to order that, because I do not think we need it. 

86MS HAMILL:  And there was also a restitution order that was also not opposed.

87HER HONOUR:  The restitution order will be made. 

88MS HAMILL:  If the court pleases.

89HER HONOUR:  Yes, thank you.  You can move on, Mr Kalic.  I mean, let us hope you - self-disgust - it is all very well being remorseful, but self-disgust is not going to serve you well when you get out, all right?  So my advice to you, for what it is worth, use that condition that I have put on your CCO about the psychologist.  I know blokes like you do not like going to psychologists, but you need to.  All right? 

90You need to work out what was working - what was operating around that offending and you may well have some trouble emotionally getting back on track once you are out and that is no help to anyone.  You are the sort of person who should never appear before a court again, but if you do not handle this emotionally, if I can put it that way, you may well be, all right? 

91OFFENDER:  Yeah. 

92HER HONOUR:  Thank you very much, Mr Kalic.

93MR McGLONE:  Your Honour, that just prompts me for one thing.  If the warrant could be endorsed that this is the first time Mr Kalic is in custody and he does suffer from anxiety.

94HER HONOUR:  That was not noted in the report from Mr Simmons.

95MR McGLONE:  Well he - Mr Simmons talks about his manic cleaning in the report.  He doesn't diagnose him with anxiety, but ‑ ‑ ‑

96HER HONOUR:  No, well, with respect, that was not raised on the plea, particularly, with respect, Mr McGlone, and if you were going to raise it in that way, there should have been some psychological support for it. 

97MR McGLONE:  I couldn't take it any further than what was in the report, but
I just merely raise it in the case of the warrant.

98HER HONOUR:  Well, I cannot do that.  I cannot ‑ ‑ ‑

99MR McGLONE:  It is a matter for Your Honour. 

100HER HONOUR:  It absolutely is a matter for me.  I cannot be making orders that he suffers from anxiety when I have got no psychological support from that, apart from the fact the he's a manic cleaner.  I do - it is noted, he has not been in gaol before and this is going to be stressful for him, so if that could be noted, this is his first time inside.

101MR McGLONE:  That would be my submission. 

102HER HONOUR:  Is that all right?  I am just looking at the prison officers. 

103PRISON OFFICER:  Yes, Your Honour.

104HER HONOUR:  All right.  Thank you very much.  All right. 

105MS HAMILL:  Are you doing 6AAA?

106HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of three years and order you serve a minimum term of 18 months.  Thank you.  Yes, thank you. 

107Yes, thank you, is there anything else I need to attend to? 

108COUNSEL:  No, Your Honour.

109HER HONOUR:  Thank you very much.  We will stand down to - yes, thank you, I have got something else to attend to, so I am going to stay on the Bench.  Counsel are excused and Mr Kalic can be taken down.  Thank you, sir.  

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