Director of Public Prosecutions v Karevski
[2021] VCC 2135
•15 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00702
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| NIKOCLE KAREVSKI |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2021 | |
DATE OF SENTENCE: | 15 December 2021 | |
CASE MAY BE CITED AS: | DPP v Karevski | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2135 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty- one charge recklessly cause injury – one charge theft – related summary offences – delay - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Total effective sentence of 62 days imprisonment with a 12-month Community Corrections Order and $1000 fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Kounnas | Office of Public Prosecutions |
| For the Accused | Ms A.. Cannon | Doogue & George |
HER HONOUR:
Introduction
Plea of guilty and maximum penalty
1Nikolce Karevski, you have pleaded guilty to one charge of recklessly causing injury, the maximum penalty for which is five years’ imprisonment and one charge of theft, the maximum penalty for which is 10 years’ imprisonment.
2You also agreed to three summary offences being heard, and pleaded guilty to the offences of committing an indictable offence (recklessly causing injury) while on bail, which carries a maximum penalty of 30 penalty units or three months' imprisonment; contravening a conduct condition of bail (being out after curfew), which carries a maximum penalty of 30 penalty units or three months' imprisonment, and a charge of trespass (entering an apartment at Southbank without authority to do so), an offence which carries a maximum penalty of 25 penalty units or six months' imprisonment.
Circumstances of the offending
3The prosecution opening dated 30 November 2021 sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise some of the facts giving rise to your offending here.
4On the evening of 22 August 2018 you sent a series of text messages to Ms Foster. At the time Ms Foster worked as an escort. You had a meeting in that context in June 2018. You later developed a friendship, which was, on one occasion, intimate.
5Some time between then and the offending, on 23 August 2018, you apparently lent Ms Foster a laptop. You later wanted to get the laptop back, and in the course of these exchanges it seems that the friendship soured. Ultimately, Ms Foster pawned the laptop. On her account she did this to pay for the damage she thought you had done to her car (I note that no allegation of this is brought).
6On 22 August 2018 you borrowed the phone of a colleague, Natasha Krestevski, and contacted Ms Foster, pretending to be a new client. By making a false booking for her time, you were able to establish where she was.
7At approximately 2.45 am you went to the address you had been given under that false name, an apartment in Southbank. Ms Foster did not realise it was you she was giving the address to.
8I pause here to note you were on bail at this time. You travelled to the address in breach of your condition of bail to be at home between the hours of 9 PM and 6 AM. This gives rise to Summary Charge 9: breaching a conduct condition of bail.
9When you arrived, you used the intercom to dial the Apartment, and Ms Foster, without looking or speaking, presumed it was a friend and unlocked the door. You entered the main doors and travelled on the lift to the apartment.
10You walked then to Ms Foster’s door, knocked on it then quickly hid around the corner. Ms Foster opened the door but could not see anyone in the corridor. As Ms Foster was closing the door you moved quickly and forced the door open, pushing Ms Foster until she was pressed against the wall. You then entered the apartment yelling, demanding she return your laptop. This gives rise to Summary Charge 11: entering a private place without authority or excuse (trespass).
11Ms Foster was shocked to see you. She did not know how you found her address. Ms Foster explained that she did not have the laptop and that it was in Craigieburn. She told you to get out. You then said, 'Fucking make me get out', and grabbed her by the hair and yanked her backwards. This action constitutes part of Charge 1: recklessly causing injury.
12Ms Foster then swung at you, glancing your face. You said, 'Now you’ve hit me, I can hit you back'. You proceeded to punch Ms Foster twice in the face, hitting her in the eye, then the mouth. Ms Foster lowered her head to protect herself, and you grabbed her by the hair, dragged her to the ground and yanked her around the floor. This is Charge 1: recklessly cause injury, continued.
13Ms Foster was terrified. Ms Foster screamed for help, but you covered her mouth and nose. When Ms Foster stopped resisting and trying to yell, you let her go. I note here that these events also give rise to Summary Charge 8: committing an indictable offence while on bail.
14You then picked up Ms Foster’s phone and threatened her, saying, 'I’m going to kill you. Don’t call the cops. If you do, you’ll know about it.' I note that this separate act is uncharged and led for context.
15You then left the apartment with Ms Foster’s phone, travelling down in the lift and running out a side exit. This constitutes Charge 2: theft.
16Ms Foster sustained the following injuries:
· a small cut in her mouth;
· bruising and swelling to the left side of her face; and
· scratches on her left forearm.
17A bundle of photographs of Ms Foster, taken in the early hours of the day the offence was reported, was tendered on your plea and became Exhibit B. I have looked at those again while preparing this sentence.
Arrest and Bail
18You were arrested and remanded into custody on 23 August 2018. You consented to an intervention order in favour of Ms Foster on 27 August 2018. You were bailed on 23 October 2018, and at that point you had served 62 days in custody.
Nature and gravity of the offending
19I now assess the nature and gravity of your offending. First, I note that in response to a specific question from me the prosecutor submitted that he did not press a finding that this violence happened in the context of an intimate relationship. With that clarification, I note that the role for general deterrence, which is so great in intimate partner violence, does not assume those proportions in this sentence.
20That said, this is truly unpleasant behaviour against a woman in what was, at least, her temporary home or workplace, and in the context of her particular line of work, which requires her to meet people alone, often at night-time. Whatever your reason for being there, to collect the laptop that you thought you had a right to, it is completely unacceptable to treat any person, to treat any woman, in this way.
21From the photographs, it would seem that the injuries were very superficial. However, the alarm and shock Ms Foster was put into by what you did while she was alone in her apartment in the early hours of the morning would have been anything but.
22Your assault consisted of more than one act, and was extremely unpleasant. You added to this by taking away Ms Foster’s phone, which would have added to her isolation and alarm.
23You committed these offences while on bail, out of the house, in breach of a conduct condition of your bail, and you offended while trespassing on Ms Foster’s private space.
24Your actions in assaulting Ms Foster were both cowardly and contemptuous of her.
Procedural chronology
25As I have said, this offending took place on 23 August 2018. You were on bail at that time in relation to some driving offences being dealt with in the Heidelberg Magistrates' Court. You were later sentenced on those matters to a 12 month Community Corrections Order with the requirement that you perform 250 hours of community work: I will return to this later in these reasons.
26The course of your case through the Court system has been extremely slow, generally on account of the pandemic. Early negotiations to resolve the case were fruitless, though I note earlier attempts were on the basis of a plea to a much more serious charge. Further delays have been incurred by the reluctance of one of the witnesses to come to Court. She was subject to compulsory examination in 2018 and later, in this Court, a warrant had to be issued in relation to her appearance at a preliminary cross-examination.
27Trial dates in July 2020 and September 2021 were vacated in the context of the pandemic.
28Finally, in November 2021, the parties were able to resolve the case shortly before a jury was to be empanelled. Your case was heard as a sentence indication on 1 December 2021, and at that hearing I indicated that were you to plead guilty to these charges I was unlikely to impose a further sentence of imprisonment, though I made it clear that I would apply the pre-sentence detention. It was submitted that appropriate punishment could be achieved by the imposition of a financial penalty or a Community Corrections Order with a ‘work only’ component.
Personal circumstances
29You are currently 40 years old, and you committed these offences when you were 37.
30You were born in Australia of Macedonian parentage; your parents are both in their mid 70s. You completed Year 12, then commenced study for a Bachelor of Commerce, but dropped out in the second year because you did not think the ultimate 'desk job' would be suitable for you. You subsequently worked, apparently quite successfully, in construction related industries, including the National Broadband Network rollout and in asbestos removal. You are now, after an interruption to construction by the pandemic, working back in that industry.
31Five years ago you commenced a relationship with Sarah and Archie was born, though you are now separated from Archie’s mother. Archie is now four years old, and he and his mother live in Adelaide.
32You have one older brother and he is a teacher. Your family are not otherwise in trouble with the law.
33You started using methamphetamine at around 19 years of age, after transitioning from amphetamines.
34By age 27 you were heavily dependent on this substance. For a period of two years you were using this substance daily.
35You had developed a tolerance and felt that you needed methamphetamine daily to feel 'normal'. You were, on your account, an on-again / off-again drug user in the background to this more recent offending.
36You have, however, been abstinent from substance use since being released from custody.
Prior criminal history
37You have admitted a very limited and largely irrelevant criminal history. It includes a small number of driving related offences. You have no prior criminal history for violence. You have been the respondent in two applications for intervention orders, one in relation to this complainant.
Impact on victims
38I am obliged to take into account the impact of your offending on your victim, Ms Foster. Although Ms Foster did not exercise her right to provide a written statement, I can comfortably conclude that she was frightened, hurt and humiliated by what you did to her, and I bear that in mind in the construction of this sentence.
Matters in mitigation
Plea of guilty
39At any time a plea of guilty will attract a significant discount on sentence, but at this time in particular, authority makes it clear that I must impose a palpable further discount on your sentence in the context of the backlog of criminal trials in Victoria, and the consequences for the administration of justice. I have applied that discount to your case; at another time your sentence would have been greater.
40Although your plea is not technically entered early, your case was resolved on the basis that represented a significant departure from the earlier proposed resolution canvassed in February 2019. That being the case, I will treat your plea as early.
Prospects of rehabilitation
41I am obliged to have regard to your prospects for rehabilitation. You were released on bail with the assistance of the Court Integrated Service Program on 23 October 2018. The conditions of that bail order were rigorous and required you to provide drug screens and undertake drug and alcohol counselling.
42Further, as the result of the Magistrates' Court case on the driving charges, you were placed on a 12-month Community Corrections Order which included 250 hours of unpaid community work, as well as additional treatment and rehabilitation conditions.
43Materials were tendered on your plea that establish you successfully completed each of those requirements.
44In addition to that, you also completed a 20-week men’s behaviour change program as part of the Corrections Order. Evidence of your completion of that course was also tendered on your plea.
45All this pointed to a positive assessment for your rehabilitation.
46However, after your sentencing hearing, I requested a pre-sentence report to ascertain your suitability for a Community Corrections Order. I did not think that a fine was sufficient to account for the punitive and general deterrence aspects of this sentence. I note the prosecution's submission that further gaol was warranted.
47The Community Corrections Order report came back with you deemed to be unsuitable. The author apparently reached that conclusion on the basis of an indication from you during the assessment that you, among other things, did not wish to consent to such an order and did not want to comply with the order.
48In further submissions dated 14 December 2021, your barrister addressed the Community Corrections Order report. Through her, you indicated that you were willing to agree to further assessment for alcohol misuse and to undertake further unpaid community work.
49Before imposing this sentence I again asked your barrister whether, given my conclusion about additional punishment, it would be more appropriate to impose a further term of imprisonment, despite my earlier indication. It was again submitted that you agree to the completion of a Community Corrections Order. It is now a matter for you which pathway you choose to adopt, completing the Community Corrections Order or serving a further imprisonment.
50Ultimately, I accept that the period of imprisonment that you served on these charges had a deterrent effect on you; however, I regard the period of custody already served as insufficient for the other purposes of sentence. Despite the report, I will still impose a Community Corrections Order on you, but you need to understand that this Community Corrections Order is the alternative to a further term of imprisonment for what you did.
Delay
51Your offending took place over three years and three months ago.
52You have not been charged with any other offence during this period. You have used the time to successfully demonstrate your ability to comply with Court orders, attend to your drug problem, and demonstrate a persistence in relation to performing unpaid community work.
53Moreover, the delay in this case has meant that you have had this matter hanging over your head for about three and a half years; this has held you back from doing certain things, such as committing to employers, and has no doubt played on your mind throughout the period. This represents additional punishment, and I do take it into account.
Current sentencing practices
54I have had regard to current sentencing practices for sentences in this category. No case is completely like yours, no circumstances are particularly like these. Nevertheless, I sentence you in that general landscape.
Sentencing principles
55I must apply the proper sentencing principles in your case. Notwithstanding the prosecution concession, this is not a sentence that engages the principles applying to intimate partner violence. I still conclude that there is a role for general deterrence in this case. It is still inexcusable violence committed against a woman in her home or workplace. I regard, however, the role for specific deterrence to be lowered, given the salutary effect of the period of imprisonment and the delay and the way you have used the delay. I am satisfied that the work you have done to establish rehabilitation does protect the community, but through this sentence the Court denounces your offending. I do think there is a role for additional punishment in the sentence that I impose.
Disposition
56On Charge 1: recklessly causing injury, you are convicted and sentenced to a period of imprisonment of 62 days’ and a Community Corrections Order of 12 months’. On Charge 2: theft, you are convicted and sentenced to a Community Corrections Order of 12 months’. On the related summary offences of committing an indictable offence while on bail and contravening a conduct of bail, you are convicted and fined an aggregate fine of $1,000.
57On Summary Charge 11: entering a private place without permission, you are convicted and sentenced to a Community Corrections Order of 12 months’, resulting in a total effective sentence of a period of imprisonment of 62 days’; a Community Corrections Order of 12 months’, and a fine of $1,000.
58Pursuant to s18 of the Sentencing Act I declare that 62 days of the sentence has already been served by way of pre-sentence detention. Pursuant to s6AAA of the Sentencing Act 1991 I declare that had you been found guilty and not pleaded guilty, I would have imposed a period of imprisonment of 14 months’, with a non-parole period of seven months’.
59Pursuant to s40(1) of the Sentencing Act I make one Community Corrections Order in respect of Charges 1 and 2 on the indictment and Summary Charge 11.
60I am going to read you the conditions of the Community Corrections Order.
61You will first be subject to the standard conditions of a Community Corrections Order. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the entire 12-month period.
62You must report to the Reservoir Community Corrections Service within two days of today.
63You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
64It is a term of all Community Corrections Orders that you submit to visits as directed, and you must obey all of the instructions and directions of the Community Corrections officers. You are not able to leave the state of Victoria without their prior permission and that is for the entire 12 months.
Special conditions
65Special conditions that I will attach to the order are as follows:
66You must report for supervision with your case manager as directed.
67You must submit to assessment and treatment for alcohol and drug dependence if indicated.
68I require you to perform 150 hours of unpaid community work over the term of the order, and pursuant to s46CA of the Act I direct that time spent in treatment and rehabilitation programs can be credited towards those hours.
69Given the content of the Corrections assessment report I also require you to participate in judicial monitoring.
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