Director of Public Prosecutions v Kovac, Michael and Kovac, Gino
[2013] VCC 343
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02109
CR-12-02110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KOVAC |
| and |
| GINO KOVAC |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2013 | |
DATE OF SENTENCE: | 26 March 2013 | |
CASE MAY BE CITED AS: | DPP v Kovac, Michael & Kovac, Gino | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 343 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ayers | Office of Public Prosecutions |
| For the Accused Michael Kovac | Ms G. Morgan | |
| For the Accused Gino Kovac | Mr J. McQuillan |
HIS HONOUR:
1 Michael Kovac and Gino Kovac, you have each pleaded guilty to an indictment charging you with four offences of burglary, two offences of theft, one offence of robbery and one offence of recklessly causing serious injury. You, Michael Kovac, have also pleaded guilty to an offence of threatening to inflict serious injury.
2 Each of you have admitted prior convictions. In your case, Michael Kovac, you have not previously served a term of imprisonment and all of your offences have been committed outside Victoria. I think it is a fair submission made on your behalf that the offences are of a comparatively minor nature compared with this offending conduct. In that sense this seems to me to be out of character and an aberration.
3 In your case, Gino Kovac, you have an extensive record which includes offences of violence and offences of burglary. Ordinarily one might have expected that to have given rise to an ongoing pattern of criminal conduct. However, it is noteworthy that for a significant period after you completed your last prison sentence in 1997 you remained substantially trouble-free and have not served a term of imprisonment since then. I shall make further reference to your records in due course.
4 The maximum term of imprisonment for the offence of recklessly causing serious injury is 15 years' imprisonment. The maximum for robbery is 15 years' imprisonment. The maximum for burglary is ten years' imprisonment. Likewise for theft, the maximum is ten years' imprisonment. For threatening to inflict serious injury the maximum is five years' imprisonment.
5 The prosecution has tendered a summary of prosecution opening, which is Exhibit A. I am not going to read that out in detail. I incorporate it into these reasons for sentence in its entirety. They were read to the court this morning. Suffice to say that it shows all of the offending conduct occurred on one evening, 17 September 2011, which was a Saturday evening, after the two of you had been drinking and smoking cannabis together. The offending occurred between 7.15 pm and somewhere around 10.00 pm that day.
6 In relation to the first five offences on the indictment, they involve you breaking into three separate dwelling houses. Fortunately they were not occupied by their owners at the time. You ransacked those properties. Offences of burglary of dwelling houses, even when the occupants are not present, is still a very serious offence. People are entitled to regard their houses as sanctuaries. Unfortunately burglary of dwelling houses is all too common.
7 The fourth property that you entered was occupied. The resident was a widow aged 91 years. I accept, as the prosecution did, that at the time you broke into that premises you did not know that she was there. If you had known that of course you would have been charged with the much more serious offence of aggravated burglary.
8 However, once you had entered the premises in order to steal from those premises, you, Gino Kovac, confronted your victim in the hallway, grabbing her around the shoulders from behind and tackling her to the floor face-down. You then sat on top of her, putting your knee across her lower back and demanded to know where her money was. She said she did not have any money. You then forcibly slapped her to the right side of the face. She pleaded with you not to hurt her and said she was 91 years of age. You said you would not hurt her if she did what you said. You then lifted her onto her feet and led her to the lounge room, holding her right wrist firmly. Meanwhile you, Michael, were ransacking her house.
9 In the lounge room the victim located her handbag and took out her purse and gave it to you, Gino Kovac. You then pushed her onto the floor and said "Stay there, don't look at me". You demanded to know where her credit card was. She told you she did not have one. You then began emptying her handbag and asked her where her jewellery was. She told you it was inside a nearby glasses case. You then yelled to your son Michael to get the jewellery. He was unable to locate it. You then grabbed the victim and dragged her across the floor, hitting her forehead on a chair and causing her a laceration which started to bleed. You then forcibly grabbed her around the neck and said "It's not here". She, not surprisingly, was petrified and thought she was about to be strangled to death.
10 She then told you where her jewellery was and it was subsequently found by your son Michael. You then let her go. She remained on the floor of the lounge room until Michael came in. He then repeatedly grabbed the victim and pushed her head onto the floor, causing her existing wound to bleed more profusely. She told you, Michael, that she was bleeding. You then grabbed the back of her pants and pulled them down a little bit. You then said "If you go to the police I'll come back and rape you for anal sex. You wouldn't like that, would you?"
11 Clearly your conduct was calculated to terrify or petrify your 91-year-old victim in the sanctity of her own home. For you to both rob, much less to inflict gratuitous violence upon her in her own home, knowing that she was obviously an aged and defenceless woman, was a cowardly and despicable act in the extreme. You put her in fear of being murdered, you left her bleeding on the floor of her own living room whilst you made good your escape. You left her with ongoing psychological scars. You have effectively destroyed the feeling of safety and peace that she was entitled to have in her own home after 45 years living in the same property.
12 It is noteworthy that the description "cowardly and despicable" was used by the prosecutor. It is also noteworthy that you, Gino Kovac, chose those words to describe your own conduct on that night in the letter which you wrote for transmission to your victim. I will come back to that in a moment. So it would seem that everybody, including you, Gino Kovac, and I suspect your son Michael Kovac, are in full agreement that your conduct was cowardly and utterly despicable on that particular night. Those offences of course, committed against a 91-year-old woman, are the most serious offences on the indictment.
13 The Victim Impact Statement that was also relied upon by the prosecution, was read to the court. To reiterate the comment that I made earlier: that Victim Impact Statement is understated and the more powerful by reason of that understatement in demonstrating the strong probability that the victim's life will be seriously adversely impacted for the remainder of her life. She will never again feel the same degree of safety and comfort in her own home.
14 Turning to matters personal to each of you. On your behalf, Michael Kovac, reports from a clinical psychologist, Carla Lechner, dated respectively 9 August 2012 and 8 March 2013, were tendered. Those documents set out a good deal about your background history. They also point out the fact that you have been for many years an abuser of alcohol and illicit substances, and that you have suffered, for some time, and continue to suffer from depression. Since you have been custody and receiving regular medication for your depression it has improved somewhat. But nevertheless it is a condition for which you continue to suffer. Your counsel has submitted that that is a matter that I should take into account in that it will make the period of your sentence more difficult to bear than if you were a person who did not suffer from that condition. I do take that into account.
15 The reports of Ms Lechner also underscore the proposition that you are genuinely remorseful for what you have done. I think it can be said of both of you that you have been entirely unable to provide any satisfactory or even logical explanation for your offending conduct on this night. Clearly there was a motivation for financial gain in that you sought to obtain valuables, but it seems in both your cases to have come out of the blue in terms of the conduct of your lives in the period of several years leading up to that offending conduct.
16 Certainly Ms Lechner's report does not seek to provide any real explanation for your offending conduct, save that with the ingestion of the amount of alcohol and cannabis that you had had, your judgment would no doubt have been impaired. I hasten to add that your counsel has stressed to me that you do not put forward that fact as any sort of excuse for your conduct on that night. Indeed, it is I think very much to the credit of both of you that you have not sought to excuse your behaviour. Rather, it can be said of both of you, you have admitted completely the facts that have been ranged against you without demur and have not sought to minimise the seriousness of your offending conduct in any way.
17 All of which, dealing with you still, Michael Kovac, leads me to conclude that your expressions of remorse to your elderly victim and to this court are to be treated as genuine and I do proceed to sentence you on the basis that you are genuinely and substantially remorseful for what you have done.
18 Also provided to me as Exhibit M3 was a latter from the Department of Justice which points out the degree to which your incarceration has involved you being deprived of the usual privileges for an inmate of Victorian prisons in being permitted out of your cell and to mix with other prisoners. Between 19 October of last year and 30 January this year you had only been permitted to leave your cell for one hour each day. Since then that period has been increased to three hours. It seems clear also that you are likely to continue to be a protected prisoner, for the rest of your sentence.
19 It was submitted on your behalf that I should reduce your sentence substantially because of that fact. Reliance was placed on the judgment of Whelan J in R v Mokbel handed down on 3 July 2012, in which, in not dissimilar circumstances he concluded that there was a real possibility that the offender in that case would continue to be held in very restrictive circumstances for an indefinite period, and that that was a significant mitigating factor in his case. It was submitted that I should apply that principle in your case.
20 It is true to say that Exhibit M3 suggests that the regime that might be available to you will be a lot less harsh than that which you have experienced in the recent past. Nevertheless I think that, because you will be a protected prisoner almost certainly for the rest of your sentence, it is a significant mitigating factor and I do take that into account.
21 I was also provided documents which form Exhibit M4, certificates of the Kangan Institute and an assay report which show between them that you have used your time wisely in your period on remand in custody and that at least on the occasion that you were tested for the use of illicit drugs, I think in June of last year, all of the tests were negative. The fact that there do not seem to be any other occasions on which you have tested may support the conclusion that you have sought to avoid abuse of illicit substances whilst you have been in custody. I am prepared to accept that that is the case.
22 I was also provided in that same bundle of documents with a description of your work as a billet. It is to your credit, that you have sought to participate in a positive way in the prison environment. All of which seems to me to be relevant to consideration of your prospects of rehabilitation. The remarks that I have made about your remorse and your lack of serious prior convictions would tend to support the proposition, I think, that, provided you are to be taken at your word that you will use your best endeavours to steer clear of alcohol, engage in programs to prevent you from relapsing into alcohol use and to avoid substance abuse in the future, your prospects of rehabilitation are reasonable. If you stumble, then I fear that you may offend again.
23 Ms Lechner's assessment was in terms that presently you represent a moderate risk of re-offending and that that moderate risk will be mitigated significantly if you are able to deal with your substance abuse habits. You have put alcohol at the top of the list. Whilst your prior record does not suggest that it has caused a major problem to you in terms of your offending conduct, it may well have played havoc with your private life and caused you to lose two marriages and contact with your children.
24 So I am heartened to hear through your counsel that you have determined to avoid substance abuse in the future. Time will tell whether you achieve that, but I am prepared to say that on balance your prospects of rehabilitation are reasonable and that, to the extent that I can do so consistently with proper regard for other sentencing principles, I shall endeavour to structure a sentence that facilitates your rehabilitation.
25 I am not going to go in detail into your background. There is no doubt you had a difficult childhood and educational background, and that you have not had the benefit of the support structures from your parents. Your father was an absentee father for many years from when you were a young child. For about 20 years you did not have much contact with him after the break-up of your parents' marriage when you were about eight. It is unfortunate that that seems to be your father's experience too. It is all too common in these courts to see that absent a stable and strong family background people go off the rails as you seem to have done. You have obviously reacted badly to the break-up of each of the two long-term relationships that you have had. That no doubt has contributed to the psychological and emotional state that you were in at the time of this offending conduct.
26 I move on to deal with the matters personal to your father, who is now 50 years of age. On your behalf was tendered a report from Pamela Matthews, Forensic Psychologist, dated 22 March 2013. That conveniently and at some length sets out much of your background history. You had a very deprived childhood and a difficult, if not impossible, relationship with your father. You went through boys' homes. Not surprisingly, from the age of about 15 years you embarked on a career of offending on a regular basis, culminating in a substantial term of imprisonment imposed upon you in 1993. By that time you had accumulated a pretty impressive criminal record for offences of dishonesty, violence and other offences that I need not go into.
27 But at that time you were fortunate enough to meet your present wife, Wendy, who visited you and supported you through your period of incarceration. It seems that she set about putting you on the straight and narrow once you completed your term of imprisonment. I have not seen many cases where people with the kind of record that you had and the kind of background that you came from, with the total lack of supporting structures, have been able to turn their life around as you obviously did for a period of about 14 years. You managed to stay out of prison during that time. Not entirely trouble-free but there was a very big difference from the pattern of behaviour that you exhibited from the age of 15 to the end of your sentence in1997.
28 You have been susceptible to substance abuse. Ms Matthews diagnosed a dysthymic mood disorder, which seems to me to be not all that different from depression, and alcohol and substance abuse of one kind or another has also been a feature of your life. But you have been able to work. You were working for the same employer, Chemsan, between 14 February 2008 and 13 April 2012. That is the day before you were arrested on these matters. Your employer speaks very well of you. "Gino has succeeded in creating his image as a dependable employee who worked hard to complete the assigned target. His problem-solving skills showed his positive attitude while working in a stressful condition. Gino always satisfied us by finishing his assigned work within the given time. His communication skills and cooperative approach to all the staff made his presence a part of our company."
29 So you know what you can do. It makes it the more difficult when one reads that to understand how on earth you committed these offences or embarked on this course of conduct on that particular night, much less treated your 91-year-old victim in the way that you did.
30 I mentioned earlier the document which is Exhibit G2. That is a letter which I am told you wrote in August of last year for the purposes of apologising to your victim. Like your counsel, I have to say that when I first heard him mention it I was sceptical because I have seen a number of letters of this kind. Usually they reek of insincerity and are designed very often as last-minute attempts to curry some sort of favour in a hopeless situation with the sentencing judge.
31 As your counsel said to me, ordinarily he would have been reluctant to put forward such a letter as part of a plea in mitigation. I have to say that this is in a different category. It appears to me to be sincere and a genuine attempt to express remorse, and to express a heartfelt apology. I have been fooled before, I dare say. But I am inclined to accept that this was penned by you as a genuine expression of what it contains, which is an expression of remorse in the clearest possible terms.
32 I hope it is genuine, because if it is then I think your prospects of rehabilitation are good. I cannot quite go that far. I would not put those prospects higher than reasonable in view of the fact that after 14 years of staying out of gaol you embarked on this criminal conduct, and did so without any excuse or reason. So I have to remain guarded in my assessment of your prospects of rehabilitation.
33 But I take your plea as an expression of remorse also and I accept in the case of both you and your son that there is a significant utilitarian value, that is, you have sought to facilitate the - you have in fact facilitated the interests of justice. I think you have genuinely sought to do so in that you have sought to avoid the victim having to come and give evidence in court. It matters not ultimately whether it was a strong prosecution case or a weak prosecution case or somewhere in between, whether you had some prospect of acquittal or not. The fact is that justice has been served and you are entitled to proper credit for that. You have pleaded guilty at the first reasonable opportunity and therefore you deserve full credit for your pleas of guilty, each of you.
34 I note also that in your case, Gino, your wife has suffered from some serious health problems which do at least potentially remain life-threatening. She is eight years older than you, and that will be a worry for you. She is here to support you and I have no doubt that she will support you through your sentence and be there assuming her health stays good when you finish your sentence. With that kind of support and prospect I think that adds to the degree of optimism that I have intended to express about your prospects of rehabilitation, guarded though I still think they remain.
35 You will have visits from your wife. It may be that your son will also benefit from those visits, as I think he has done in the past and has enjoyed them. You, Michael, I accept will probably not have visits, or not many visits from other people. You fear that such friendships as you have had in the past have been burnt as a result of your offending conduct. I take that into account too in that it will make serving your period of imprisonment the more difficult.
36 I am required, as has been pointed out to me by the learned prosecutor, to take into account a number of sentencing considerations. Denunciation of your conduct is one of them, that is, the expression of this court's denunciation of conduct of that kind. Punishing you, each of you, adequately for your offending conduct is another. Protection of the community is another consideration. General deterrence, that is, deterring others from committing of this kind, goes hand-in-hand with protection of the community and I have to pay proper regard to that principle.
37 I think I need also to give some value to deterring each of you from committing other offences. Whilst I suspect that both of you now feel positive about avoiding committing further offences in the future, there has still got to be that feeling in the back of your mind when you leave prison, that reminder of what might happen if you were to commit further offences. And I have to pay proper regard to sentencing you with that in mind, as well as facilitating your rehabilitation as much as I reasonably can in all the circumstances. The Prosecution submitted that the appropriate sentencing range is a total effective sentence of between 6 and 8 years imprisonment with a non-parole period of between 4 and 6 years.
38 With all those factors in mind I now proceed to sentence you. I will deal with you first, Michael, if you would stand please.
39
On Charge 1 of burglary I sentence you to imprisonment for two years. On Charge 2 of theft I sentence you to imprisonment for 12 months. On Charge 3 of burglary I sentence you to imprisonment for two years. On Charge 4 of burglary I sentence you to imprisonment for two years. On Charge 5 of theft
I sentence you to imprisonment for nine months. On Charge 6 of burglary
I sentence you to imprisonment for two years. On Charge 7 of robbery
I sentence you to imprisonment for three years and six months. On Charge 4 of recklessly causing serious injury I sentence you to imprisonment for four years. On Charge 9 of making a threat to inflict serious injury I sentence you to imprisonment for two years. I convict you on each of those offences.
40
The base sentence is that on Charge 8, and I order that six months of the sentence on Charge 1, six months of the sentence on Charge 3, six months of the sentence on Charge 4, six months of the sentence on Charge 9 and
12 months of the sentence on Charge 7 be served cumulatively upon one another and upon the sentence of four years that I have imposed in relation to Charge 8. The total effective sentence is seven years imprisonment, and I order that you serve a period of four years and two months before you become eligible for parole.
41 I have selected that because it does give you a larger than usual period on parole and having the balance of that sentence hanging over your head. Under supervision of the Parole Board it will also enable you to engage in further programs and other forms of assistance to facilitate your rehabilitation.
42 But for your plea of guilty to each of the charges on the indictment, I would have sentenced you to nine years and six months' imprisonment with a non-parole period of six years and four months.
43 I declare that 346 days of pre-sentence detention are to be reckoned as time served on the sentence that I have imposed and deducted from the sentence that you will actually have to serve. I shall make the orders for compensation and retention of forensic sample that have been provided to me in draft. You can sit down for the moment.
44
Gino Kovac, would you stand please? On Charge 1 of burglary
I sentence you to imprisonment for two months. On Charge 2 of theft
I sentence you to imprisonment for a period of 12 months. On Charge 3 of burglary I sentence you to imprisonment for two years. On Charge 4 of burglary I sentence you to imprisonment for two years. On Charge 5 of theft
I sentence you to imprisonment for nine months. On Charge 6 of burglary
I sentence you to imprisonment for two years. On Charge 7 of robbery
I sentence you to imprisonment for three years and six months. On Charge 8 of recklessly causing serious injury I sentence you to imprisonment for four years.
45 I convict you on each of those eight offences. I further order that eight months of the sentence on Charge 1, eight months of the sentence on Charge 3, eight of the sentence on Charge 4 and 12 months of the sentence on Charge 7 be served cumulatively upon one another and open the sentence of four years imposed on Charge 8. That makes a total effective sentence of seven years.
46 I have made orders for cumulation in relation to Charges 1, 3 and 4 greater than those that I made in respect of your son because of your record and your greater age. In conformity with the submission made by the prosecution that you would otherwise have not been on a par with your son. I think that the sentences that I impose on each of you should be identical having regard to the differing factors that apply in each of your cases. I order in your case also that you serve a period of four years and two months before becoming eligible for parole. I do that with a view to facilitating your rehabilitation on the basis that you have demonstrated in the period of 14 years that you remained out of prison that you are capable of staying out of trouble in the future.
47 But for your pleas of guilty I would have sentenced you to a period of imprisonment of nine years and six months and ordered you to serve a period of six years and four months before becoming eligible for parole. I declare that 346 days of pre-sentence detention are to be reckoned as time served under the sentences that I have imposed and deducted from the sentence you will actually have to serve. And I order in both cases that the facts relating to the pre-sentence detention be noted in the records of the court. In your case also I make the compensation orders and the order for retention of forensic sample that have applied for and have been supplied to me in draft.
48 Are there any other orders I need make, gentlemen, ladies?
49 MR AYERS: No, I think Your Honour may have just inadvertently said the word "months" instead of "years" in announcing the sentence in relation to Charge 1 of Gino Kovac.
50 HIS HONOUR: Oh, did I?
51 MR AYERS: Yes.
52 HIS HONOUR: I meant to say two years' imprisonment.
53 MR AYERS: Yes.
54 HIS HONOUR: And that eight months of that would be part of the cumulating process. Anything else that I need to deal with?
55 MR AYERS: As Your Honour pleases.
56 HIS HONOUR: All right, I will just sign these orders. Mr Kovac, you can sit down now. I did say two years' imprisonment in relation to Charge 9, didn't I?
57 MR AYERS: Yes.
58 HIS HONOUR: Yes.
59 MS MORGAN: Your Honour, my record of Your Honour's sentence in relation to Charge 9 on the indictment is two years.
60 HIS HONOUR: Two years?
61 MS MORGAN: Yes.
62 HIS HONOUR: Yes. All will be well. Would you like these certificates back?
63 MS MORGAN: Yes, please.
64
MR McQUILLAN: Your Honour, can I possibly have the letter in relation
to - - -
65 HIS HONOUR: Yes.
66 MR McQUILLAN: - - - just the letter in relation to my client's wife.
67 HIS HONOUR: I thought about that, yes. Certainly.
68 MR McQUILLAN: I think it acts as a referral to a specialist as well, which he intends to use it as that.
69
HIS HONOUR: All right, yes. I'll hand you the photographs back too,
Mr Ayres.
70 MR AYRES: Thank you, Your Honour. Sorry, the computer system is a wonderful thing, but unfortunately it has certain idiosyncrasies which mean that the two cases have to be unravelled before an order can properly be drawn in relation to each. I don't contribute in any way to the unravelling process, Mr Travis will do that. But it is necessary to draw up at least draft order so that the Corrections authority can deal with you in an appropriate way, Mrs Kovac. So that will be done now.
71 MR McQUILLAN: If Your Honour's staying on the Bench could I seek an indulgence? Could I approach my client in the dock?
72 HIS HONOUR: Yes, of course you can.
73 MS MORGAN: And could I also - - -
74 HIS HONOUR: Yes.
75 MR McQUILLAN: Thank you for that, Your Honour.
76 HIS HONOUR: Certainly. Whilst we're waiting, I think I've already said in passing that I thought the police had done an excellent job. So Mr Ayers, perhaps you could ensure that that's conveyed to - - -
77 MR AYERS: Certainly.
78 HIS HONOUR: - - - somebody might influence their futures.
79 MR AYERS: Yes, thank you.
80 HIS HONOUR: There was a time when it all used to be written out in longhand on the back of the indictment not too long ago.
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