Director of Public Prosecutions v Kelmendi and Trajanovski

[2016] VCC 1210

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01205
CR 16-01206

DIRECTOR OF PUBLIC PROSECUTIONS

v

MERGIN KELMENDI
BILLY TRAJANOVSKI

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2016
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Kelmendi & Trajanovski
MEDIUM NEUTRAL CITATION:	[2016] VCC 1210

REASONS FOR SENTENCE
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Subject:        Theft, handle stolen goods, aggravated burglary, prohibited person, possess    firearm, prohibited person possess an imitation firearm, possess drug of     dependence, possess cartridge ammunition, go equipped to steal, deal with    property suspected to be proceeds of crime, commit an indictable offence on      bail and fail to report on bail.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Parkes	Office of Public Prosecutions
For the Accused Kelmendi	Ms L Torres	Papa Hughes, Solicitors
For the Accused Trajanovski	Ms O Thompson	Balmer & Associates

1HIS HONOUR:  Billy Trajanovski, you have pleaded guilty to one charge of theft, six charges of handling stolen goods, one charge of aggravated burglary, one charge of prohibited person possessing a firearm, one charge of prohibited person possessing an imitation firearm and three charges of possessing a drug of dependence.

2Mergin Kelmendi, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and one charge of prohibited person possessing a firearm.

3In addition, you, Trajanovski, have pleaded guilty to three related summary offences; possessing cartridge ammunition, one charge of going equipped to steal and one charge of deal with property suspected to be proceeds of crime. 

4You, Kelmendi, also pleaded guilty to two related summary offences, commit an indictable offence on bail and failing to report on bail.

5You each admitted prior criminal histories.  You, Trajanovski, were convicted of theft of a motor vehicle on 20 November 1997.  You had numerous traffic and motor car convictions.  You were sentenced in this court on 27 March 2012 to a community corrections order for intentionally causing injury.  In January 2015, you were convicted of numerous burglary and theft offences, intentionally damage property, theft from a motor vehicle, aggravated burglary, handle stolen goods, commit offences on bail and theft of motor vehicle. 

6You were sentenced to eight months' imprisonment and a community corrections order and you were subsequently convicted in this court of breach of the community corrections order and sentenced to be imprisoned for a month. 

7Your prior criminal history, Kelmendi, is extensive and complicated. 

8In 1994 you were convicted of burglary, unlawful assault, intentionally or recklessly causing injury, recklessly cause serious injury and sentenced to a short period of imprisonment and a community‑based order.  You breached that community‑based order and were fined.

9In 1996 you were sentenced to imprisonment, suspended, for assaulting police and unlawful assault.  In 1998 you received a term of imprisonment to be served as an Intensive Corrections Order for offences of assault with a weapon and criminal damage.  You breached that ICO.

10In 2002 you received another Intensive Corrections Order for offences of theft, obtaining property by deception, obtain financial advantage by deception.  You had been imprisoned for two months in 2001 for dishonesty offences.  You returned to prison for 245 days in January 2003 for breaching your intensive Corrections order and you were also imprisoned for a month on theft charges.

11At 2004, a suspended gaol term of three months for theft was restored in 2005 when you were also convicted of two more charges of theft, failing to answer bail and attempt to commit an indictable offence.  In May 2005, at the Sale Magistrates' Court, you were sentenced to six months' imprisonment with four of it suspended, on five charges of theft.

12On 27 May 2005 you were sentenced to another month and on 4 August 2005, sentenced to another seven days for two charges of theft.

132006 saw you imprisoned yet again for offences of dealing with proceeds of crime, failing to answer bail, retention of stolen goods and theft before again receiving a partially suspended term of imprisonment for further theft offences.

14On 2 May 2008, you were sentenced to 12 months' imprisonment with a non‑parole period for six for theft, unlawful assault and possession of a controlled weapon.  In June 2009 you returned to prison for two years with a non‑parole period of 15 months on offences including multiple thefts, theft of motor vehicle and recklessly causing serious injury.

15When you were released on parole, you breached and served your full two years.

16In 2009 you were sentenced to another month for shop stealing and then in 2010 to seven months for intentionally causing injury.  In 2011 you received yet another suspended sentence of four months for unlawful assault, theft, attempted robbery and intentionally damaging property.  

17The litany of offending continued in 2012.  On 11 December at Melbourne Magistrates' Court you were imprisoned for 277 days on 64 charges of theft, seven attempted thefts and one charge of failing to answer bail.  Your suspended term of imprisonment was restored.

18On 13 December 2013, at Melbourne Magistrates' Court, you were sentenced to 12 months' imprisonment for 49 thefts, going equipped and in possession of a prohibited weapon.

19Then on 22 May of last year at Melbourne Magistrates' Court, you received 240 days' imprisonment on 27 theft charges, three attempted thefts and possession of a prohibited weapon. 

20As can be seen your offending is continuous and repetitive with innumerable offences over 21 years.

21Turning to your current offending, the facts of that offending are set out in Exhibit A, the amended prosecution opening.  I incorporate that document into these reasons for sentence and sentence each of you on the facts set out therein.

22Very briefly stated, in March and April of this year, you, Trajanovski, committed 13 indictable offences and three related summary offences.  You, Kelmendi, committed three indictable offences and two related summary offences in March this year. 

23You, Trajanovski, stole a BMW X5 motor vehicle, put stolen number plates on that vehicle and drove through a McDonald's where you attempted to use a stolen credit card.  On 22 March 2016 you both committed an aggravated burglary at Albion.  You were assisted by an unknown offender.

24You, Trajanovski, attempted to conceal your face.  You carried a backpack and a sawn‑off shotgun.  You, Kelmendi, carried a baseball bat.  You, Kelmendi, and the unknown offender, forced the rear door of the premises, went in inside and stole two laptop computers.  You, Trajanovski, remained at the front of the premises and when your victim came out his front door, you confronted him carrying a shotgun and demanded his mobile phone before forcing him back inside.  You both then decamped.

25This serious aggravated burglary was clearly captured on CCTV and I refer to Exhibit C.

26You, Kelmendi, were arrested at the Kealba Hotel on 31 March of this year.  You had an unloaded sawn‑off shotgun tucked down your pants.  You were a prohibited person because of your prior offending.

27You were not arrested until 21 April, Trajanovski.  At that time you were in possession of a stolen Holden station wagon with stolen number plates affixed.  You were in possession of 3.4 grams of methylamphetamine, 927 grams of cannabis in three bags and two vials of GHB.  Police also located two stolen registration plates, assorted house breaking tools and various items suspected to be proceeds of crime.  Significantly, in your backpack, police located a loaded sawn‑off shotgun, an imitation pistol and some shotgun cartridges.  You too were a prohibited person because of your prior criminal history.

28Your victim made a victim impact statement, Exhibit B.  He was traumatised and distressed by your crime.  He thought he was going to be murdered and he feels unsafe in his own home and has become hypervigilant.  I take the victim impact statement into account in sentencing you.

29The maximum penalties for each of your offences are set out in Exhibit A, the prosecution opening.  All of your offending is serious and in particular your aggravated burglary is, in my view, a serious example of that offence.  If it was well planned, a shotgun was carried by you, Trajanovski, and your unknown accomplice took steps to disguise yourselves. 

30Although it was of short duration, it terrified the victim and you both have relevant prior criminal histories.

31The possession of sawn‑off shotguns by prohibited persons is also, in my view, an extremely serious offence.  In addition, Trajanovski, your weapon was loaded, ready to fire and you had spare ammunition. 

32Turning to matters personal to each of you and dealing with you first, Trajanovski, you are now 37 years of age being born in Melbourne on 12 May 1978.  Your person history is set out in exhibit T2, a report of Aaron Cunningham and the written submissions of your counsel, Exhibit T1.

33Your parents separated when you were seven years of age.  You went to Macedonia when you were 12, staying there for five years.  Your father died of cancer shortly after you returned to Australia.  You had a nine‑year relationship with a woman who tragically was hit by a train in 2013.  You were living with your mother prior to your arrest and apparently will return to live with her when you are released from prison.

34You were educated to Year 8 level in Macedonia.  You have worked as a plasterer up until 2005 when you injured yourself when you fell from a ladder.  You have not worked since that time.

35After you returned to Australia, you started using methylamphetamine daily as well as using cannabis.  You asserted, through your counsel, that methylamphetamine and cannabis found in your possession on your arrest was for personal use.  Your counsel conceded, however, that you could not satisfy the court on the balance of probabilities that you did not possess the drugs for a trafficable purpose.  This is relevant to the maximum penalty applicable to those drug charges.

36Dr Cunningham is of the view that you suffer from persistent depressive disorder as a result of your childhood experiences and the tragic death of your ex-partner.  I accept that that condition will make your time in custody more difficult for you and I take that into account in your favour in sentencing you. 

37Your family support is also relevant to your prospects of rehabilitation.  Those prospects, however, depend significantly on your ability to deal with your drug issues.  If you give up drugs, return to employment and stay with your mother, you have guarded prospects for the future.

38I take into account in your favour your pleas of guilty.  Those pleas were entered at an early stage, that is at committal mention, and provides some evidence of your remorse for your offending.  By pleading guilty you have spared the community the expense of a criminal trial and the witnesses the need to give evidence at that trial.  Your pleas have significant utilitarian benefit.  You are entitled to a reduction to the sentence I would otherwise impose to reflect those pleas of guilty and I will return to the effect of that reduction subsequently.

39Whilst on remand and awaiting this hearing, you have spent significant time in 24‑hour lock‑down and in isolation.  That increases the burden of imprisonment and I take that fact into account in your favour. 

40I have to sentence you for a multitude of offences.  I have had regard to principles of totality in determining appropriate cumulation of sentence.  Your counsel submitted that a term of imprisonment conbined with a community corrections order was appropriate in your case.  That submission cannot be accepted, however, given the seriousness of your offending and the numerous offences you have committed.

41In my view a significant term of imprisonment is a required for your offending.  You will benefit from the support parole will give you upon your release. 

42In sentencing you and you, too, Kelmendi, I must have regard to principles of general deterrence and specific deterrence.  I must express the community's denunciation of your offending and take into account the personal histories of both of you, your prior criminal histories and the mitigating factors urged on your behalf.

43Turning to your personal history, Kelmendi, you have now 39 years of age, being born on 7 January 1977 in Melbourne.  Your history is set out in Exhibit K 2, the psychological report of Ellipsis Psychology. 

44You moved to Kosovo as a child and lived there for eight years.  You have one sister who lives in Queensland.  Your father, apparently a controlling and strict man, died 20 years ago and your mother died last year. 

45As a child you rebelled against your father and repeatedly ran away from home, got into gang activity and commenced using drugs.  As previously indicated you commenced committing extensive criminal offences.

46You were educated to Year 12 level but had little employment since.  You have had some short casual work in hospitality, farming and factories, but your drug use and terms of imprisonment or time in custody have made sustained employment, at least, impossible.

47At the age of 25 you met your ex-partner, Laurie, and you have two children from a 12‑year relationship.  Your sons are now seven and six and reside with their mother.  That relationship ended in 2014 when your ex-partner apparently just simply had enough of your drug use and criminal offending.  You haven't seen your sons for over a year and a half but you do hold hopes for reconciliation with your ex-partner in the future.  You claim to be free of drugs and ‑ did you bring the drug screens? 

48MS PARKES:  He's provided one, Your Honour, which is consistent with my instructions.  The other two we made a request for but we're not going to be ready on time.

49HIS HONOUR:  What exhibit number am I up to?  You claim to be free of drugs since being in prison and a drug screen provided today confirms that to some extent.  I mark that as Exhibit T3.

50#EXHIBIT# T3 ‑   Drug screen.

51Clearly you need to turn your life around.  And rid yourself of drug use and stop offending if you wish to reconcile with your partner and spend time as a father of your children.  You have abused illegal drugs for over 20 years.  You used cannabis at 16, heroin at 17 and you recently have been using cannabis and methylamphetamine.  Your future prospects for rehabilitation depend on you dealing with this drug problem.

52You will require assistance to achieve that goal.  Your antisocial personality traits need to be addressed.  You need drug relapse prevention strategies and support in the community upon your release from custody.

53You too pleaded guilty at an early stage at the committal mention and you too, like your co‑accused, are entitled to a reduction in sentence for the same reason to reflect those pleas of guilty and again I will return to the effect of that reduction subsequently. 

54You too have been subjected to extensive lock‑down in custody and I take that fact into account when sentencing you.

55As I said earlier, your offence of aggravated burglary was a serious example of that offence.  Your possession of the sawn‑off shotgun at your arrest is also very serious. 

56I do take into account in your favour that at least it was not loaded and you did not possess ammunition for it. 

57Your prior criminal history is appalling, however.  This offending represents a significant step up in the seriousness of your crimes.  You have limited prior convictions for violence and no prior convictions for aggravated burglary.

58Appropriate sentences for aggravated burglary have been the subject of the Court of Appeal decisions of Hogarth v R [2012] VSCA 302. At para.63 the court gave general guidance as to the appropriate range for confrontational aggravated burglaries. The Court of Appeal have recently looked at aggravated burglary sentences in Perri v R [2016] VSCA 89 and DPP v Salih [2016] VSCA 107. These cases assist me with determining current sentencing practices. This court has to assess the nature and gravity of the offending and give weight to the aggravating factors. Obviously I must take into account the personal and mitigating factors.

59As I said, in my view the fact that you acted in company with others, carried a baseball bat while your co‑accused waited outside with a firearm and the offending involved planning and orchestration are all aggravating features of your offending. 

60Your counsel, in written submissions, Exhibit K1, sensibly conceded that a custodial sentence must be imposed for this offending.  Having regard to the aggravating features and your prior criminal history, in my view a substantial term of imprisonment must be imposed.

61Would you both stand up, please.

62The sentences of the court are on all charges you will both be convicted. 

63On Charge 1, theft of the BMW motor car, you, Trajanovski, are sentenced to be imprisoned for 12 months.

64On Charge 2, retention of stolen goods, that's the number plate, you, Trajanovski, are sentenced to be imprisoned for three months.

65On Charge 3, retention of stolen goods, the credit card, you, Trajanovski, are sentenced to be imprisoned for three months.

66On Charge 4, the charge of aggravated burglary, each of you are sentenced to be imprisoned for five years. 

67On Charge 5, theft of computers, you, Kelmendi, are sentenced to be imprisoned for 12 months.

68On Charge 6, prohibited person possessing a firearm, you, Kelmendi, are sentenced to be imprisoned for 20 months.

69On Charge 7, prohibited person possessing a firearm, you, Trajanovski, are sentenced to be imprisoned for 30 months.

70On Charge 8, prohibited person possessing an imitation firearm, you, Trajanovski, are sentenced to be imprisoned for 12 months.

71On Charge 9, possession of a drug of dependence, that's the methylamphetamine, you, Trajanovski, are sentenced to be imprisoned for six months.

72On Charge 10, possession of a drug of dependence, that's the cannabis, you, Trajanovski, are sentenced to be imprisoned for nine months.

73On Charge 11, possess the drug of dependence, the GHB, you, Trajanovski, are sentenced to be imprisoned for three months.

74On Charge 12, retention of stolen goods, the Commodore, you, Trajanovski, are sentenced to be imprisoned for 12 months.

75On Charge 13, retention of stolen goods, the number plates, you, Trajanovski, are imprisoned for three months.

76On Charge 14, retention of stolen goods, further number plate, you are sentenced to be imprisoned for three months and on Charge 15, the last number plate, retention of stolen goods, you are sentenced to be imprisoned for three months.

77On the related summary offences of possessing cartridge ammunition you, Trajanovski, are fined $200.  On Charge 17, going equipped to steal, you're sentenced to three months' imprisonment and Charge 19, dealing with proceeds of crime, you are sentenced to three months' imprisonment.

78On Charge 3, committing an indictable offence on bail, you, Kelmendi, and the offence of Charge 5, contravening the bail conditions, the two summary offences for you, Mr Kelmendi, you are sentenced to an aggregate term of imprisonment of three months on both charges.

79So far as you are concerned, Trajanovski, I order that six months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 7 and six months of the sentence imposed on Charge 12 be served cumulatively on the sentence imposed on Charge 4, the base sentence.  All other sentences will be served concurrently.  That is an effective term of imprisonment of seven years and six months and I order that you serve five years before being eligible for parole.

80How much PSD is there for Mr Trajanovski? 

81MS PARKES:  120 days, Your Honour.

82HIS HONOUR: I declare 120 days of the sentence I've just imposed has already been served by way of pre‑sentence detention. Pursuant to s.6AAA of the Sentencing Act I indicate that but for your pleas of guilty, I would have sentenced you to an effective term of imprisonment of nine years and six months with a non‑parole period of seven. 

83On Charge 1, that is the theft charge, I order that any driver's licence you hold be cancelled and you be disqualified from obtaining a licence for six years from today's date.  You can have a seat.

84So as far as you are concerned, Mr Kelmendi, I order that six months of the sentence imposed on Charge 5 and nine months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 4, the base sentence.

85The summary offence sentences shall be served concurrently with the sentence imposed otherwise.

86That is an effective term of imprisonment of six years and three months and I order that you serve four years before being eligible for parole.

87What's the PSD for Mr Kelmendi? 

88MS PARKES:  Your Honour, there's 141 days referable to this matter and 73 days Renzella time so that makes it 214.

89HIS HONOUR: I declare 214 days on the basis the prosecutor just outlined of the sentence I have just imposed has already been served by way of pre‑sentence detention and I indicate, pursuant to s.6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed an effective term of imprisonment of eight years with a non‑parole period of five and a half. 

90I have made the ancillary orders sought by the prosecution for disposal, forfeiture and the 464ZF order and warned Mr Kelmendi, I think on the previous occasion. 

91Any other orders required? 

92COUNSEL:  No, Your Honour.

93HIS HONOUR:  All right.  Would you remove the prisoners, please.

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