Director of Public Prosecutions v Kraljevic
[2015] VCC 1514
•30 September 2015
| Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 15-00940
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL KRALJEVIC |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 30 September 2015 |
| DATE OF SENTENCE: | 30 September 2015 |
| CASE MAY BE CITED AS: | DPP v Kraljevic |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1514 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R.A. Maxwell | Office of Public Prosecutions |
| For the Accused | Ms M.E. Casey | Victoria Legal Aid |
HIS HONOUR:
1Daniel Kraljevic, in the early hours of 4 January 2015, you went to the Shell Service Station in Lara. You had a folding knife opened up in the palm of your hand so it was, in effect, hidden from view.
2There was at the time one loan female service station console operator. She opened the doors for you and you walked to the counter and asked to purchase a packet of cigarettes. You handed her $30. The victim then handed you the cigarettes and was opening the cash drawer to get change; as the door was opened you lunged forward with the knife and reached into the drawer to grab some notes. The victim was in shock. She screamed and attempted to stop what you were doing by grabbing and hitting at your arms and forearms.
3As it turns out, the victim had not sighted the knife. In a victim impact statement she says that this was a shock to her, but she repeats that she did not see the knife, and she says that she has been able to return to the work. She is a little bit more wary but, by and large, she is stoic and has moved on.
4She did at the time hit the alarm system which caused you to run. You were able to grab $40 from the till. You dropped the cigarettes as you left, thus in this whole foolish enterprise you were ten dollars better off.
5However, you went immediately to another late night service station in Lara. Once there you used the money that you had stolen from the previous service station to buy some cigarettes and a sausage roll.
6By this point the police had attended at the Shell Service Station. You were walking along the road in Lara and decided yourself to Triple zero, informing the operator that you were the one who had committed the armed the robbery on the Shell Service Station and you wanted to give yourself up. You described what you were wearing and hung up.
7A few minutes later the divisional van arrived at the location and you were seen walking along the road and you were stopped by the police. They asked you if you were the one who had committed the theft and it was you that said to them, "No, it wasn't a theft, it was an armed robbery."
8You were arrested and ultimately interviewed and confessed to what you had done. As I say, you made full admissions and told the police that you wanted to go to gaol so you could get away from Geelong essentially.
9This offending was serious and very frightening. People who work late at night and necessarily with cash, must have a sense that if armed offenders terrorise them, then the courts will play an important role in denouncing the criminal conduct and endeavouring to deter others from embarking on a similar course in the future.
10The courts will do this by imposing stern punishment, usually involving imprisonment. However, your crime and your circumstances, both at the time and since, are unusual. The victim was not exposed to the knife, the whole episode was quick and explosive. You called Triple zero to admit your offending, and this sets you apart.
11You have expressed remorse since the crime was committed. In addition to expressing yourself in this way, you have dedicated yourself to rehabilitation. You have engaged with the C.R.E.D.I.T. Bail Program and this has been a very positive thing.
12Your case manager, together with your general practitioner, have connected you to a psychologist and to other clinicians to deal with your problems. Through returning home you have become more stable and you were able to get work as a plasterer. This is a very significant development and, in my view, the employer, Mr Bisinella, is to be given credit for taking people on like you in the circumstances that you face.
13Your own description of your rehabilitation is summarised in your counsel's written outline in these terms. You have said you have pulled your head in. Got your life together. Improved relationships with your family and gained a better understanding of negative peer relationships. You have been clean and sober for nine months and remained offence free.
14You describe the C.R.E.D.I.T. Program as being like a form of rehabilitation where they show you the stages of where you went wrong. Further, you know where to go to for support if you need it in the future, and your coping skills have improved considerably.
15In recent times the Court of Appeal has given sentencing judges important sentencing guidelines as set out in the decision of Boulton & Ors v The Queen.
16Also, our Parliament has, in recent times, amended the Sentencing Act, making it clear that a sentence of imprisonment is very much the punishment of last resort.
17The new lengthy regimes that are available of community corrections orders enable punishment and rehabilitation to occur simultaneously. Such an outcome is not readily available, or available at all in prison. A community corrections order can be targeted to deal with the problems that are said to be at the heart of an offender's criminality, and that is very much the case here.
18I consider what was said on your behalf, that this armed robbery was a cry for help to be, in fact, the case. I have often heard that said as you heard yourself in the exchanges with your barristers. Lawyers are often saying, "This is a cry for help", or it is in a psychological report, or something. I am not often sure that that is entirely the case, but I think it is here.
19In your case your resort to drugs has seen you decline to the point where you committed this serious, but foolish, crime, and then it seems, sought to be gaoled, so as to get away from drugs and drug users in Geelong.
20A targeted program to deal with your drug addiction, as well as your mental health problems can, in the end, benefit the community, by ensuring that you are permanently reformed and thus less likely, or hopefully unlikely, ever to offend again.
21Community corrections orders as has been set out in the decision that I have mentioned of Boulton, are available and appropriate for serious offences, and in Boulton it was mentioned that community corrections orders can be established and are appropriate punishment for crimes such as aggravated burglary and even serious sexual offending.
22In my view, although it is unusual for an armed robbery with soft targets, such as this, to be punished by a community corrections order and no imprisonment at all. This is a case where that can occur and would still be a just and appropriate sentence.
23I note that the prosecution, very fairly in this case, but with real insight into what this case was really about, did not stand in the way of a penalty of a community corrections order.
24So the Court of Appeal has effectively required sentencing judges to recalibrate and adjust to what the Court of Appeal described as the new sentencing landscape, and to allow, as I have said, this form of punishment and rehabilitation to occur simultaneously.
25The community corrections order that I am about to impose is no soft option. When the community corrections order regime was brought about in our Parliament, the then Attorney-General made it clear that it was not a soft option, but it had the benefit of keeping families together and rehabilitating offenders, but be under no illusion, Mr Kraljevic, that if you do not get through this community corrections order doing each and every thing required of you, and should you return back here, it will not take me long to remember that I imposed a community corrections order for an armed robbery. I will remember this case, and I will remember the mercy shown and it will not be repeated.
26So for committing the crime of armed robbery, you are convicted and placed on a community corrections order for two years' and six months'. There are a number of conditions that apply and they will be outlined to you in detail. In brief form, you will have to do 250 hours of unpaid community work, engage in drug rehabilitation programs, and programs to assist in your mental health. You will be under supervision and also will be required to do programs that you are directed to do so, to reduce your risk of reoffending, you are directed to by the Office of Corrections.
27Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of one year and 11 months, together with a one year community corrections order to follow.
28So you can detect from that that your plea of guilty, your co-operation, and the quality of the plea involved in this case is such that you got a very significant benefit for that plea of guilty in the circumstances in which you outlined it.
29You have arranged, or your lawyers have arranged for two unrelated matters before the magistrates' court to be brought before me to be dealt with once and for all. They are drive while disqualified and refuse breath test.
30You have matters of like kind in the past, that is a driving history that is unfortunate, and it seems to me that you will suffer significantly by not having a licence, given the work that you have got and the fact that you live in a regional town without the benefits that those in Melbourne have to be just able to get on a public transport system. But you have to be off the road for four years, so your licence is cancelled and you are disqualified from driving for four years and in the aggregate I fine you $750 for drive while disqualified, and the crime of refuse breath test.
31Anything else required?
32MS CASEY: Would Your Honour impose an initial stay of three months?
33HIS HONOUR: Yes, three months on the fine.
34MS CASEY: Just in relation to the community corrections order, Your Honour. I note in their recommendation that they recommended alcohol as well.
35HIS HONOUR: They did. I just overlooked ‑ ‑ ‑
36MS CASEY: It is a matter for Your Honour, you just indicated drug treatment.
37HIS HONOUR: I see it often as the same thing, I am sorry, and that is an oversight of mine.
38You will have to do programs to deal with alcohol difficulties as well. Thank you very much.
39Documents will be produced and if you are prepared to sign it, it will bring the matter to an end. I do not propose to declare the day or two that he did in custody. I will take it into account in the scheme of things if he breaches, but it certainly will not satisfy a re-sentencing of him if he breaches this order.
40I make the orders relating to a disposal order and I propose to make the order relating to a forensic sample being provided.
41MS MAXWELL: As Your Honour pleases.
42HIS HONOUR: That will be a non-custody forensic sample. By reason of some problem with the computer there cannot be an aggregate fine and we are just endeavouring to bring about the same result which will see a fine of $500 on the drive while disqualified, and $250 on a refuse.
43I am signing an order enabling the police to dispose of the folding knife, Mr Kraljevic.
44The other order I have before me which I am about to sign is this, Mr Kraljevic, that the prosecution have made an application that you undergo a forensic procedure which is a scraping of your mouth so that DNA can be extracted and placed on a database.
45I intend to grant that application. The reasons for that is the seriousness of the crime that warrants such an order being made, prior matters that you have, together with the fact that you do not oppose such an order and it is in the public interest that I grant such an order.
46So you need to understand that within 28 days of the order, 28 days from now, a window opens up and you must get down to the police station there at Geelong within four weeks. Follow that? So 28 days from now is the end of all appeal periods. So four weeks after that you have got to get down to the police station and provide that sample. If you do not co-operate with them, they are authorised to use reasonable force to get the sample. Just co-operate.
47Mr Kraljevic, the community corrections order that I placed you on is for 30 months, two and a half years. Starts 30 September and ends 30 March 2018. You will be under supervision for a lengthy time.
48The conditions that apply to everyone on a community corrections order are the following.
49You must not commit an offence for which you could be imprisoned during the time that the order is in force. So that is almost every offence you can think of. It includes, in your case, given the fact that you have prior drive while disqualified matters; that if you drive your car and are caught in the next four years, it will be a crime that is punishable by imprisonment. If you do that within the two and a half years that I have got this order on you, the community corrections order, well, you will be back here. So you just cannot either - as soon as you get in a car and look at the steering wheel, just think you are looking at prison bars. Do you follow?
50OFFENDER: Yes, Your Honour.
51HIS HONOUR: You must comply with any obligation or requirement under the sentencing regulations, they will need to take your photograph to make sure they know who you are for work parties and all the rest of it.
52You must report to, and receive visits, from the Office of Corrections. You must report to the community corrections centre within two clear working days. That is Community Correctional Services at Geelong in Lt Malop Street. The address is here. And you must do that within two clear working days. So, today or tomorrow - not tomorrow. At least by Monday with all the football holidays.
53You must not leave Victoria without getting permission to do so from the Office of Corrections. You must obey all lawful instructions from the Office of Corrections, and you must let them know within two clear working days if you change your address, or your job, all of those things mean, just keep them in touch with what is happening.
54These apply to you especially. You must perform 250 hours of unpaid community work over the 30 months. You must be under supervision of the Community Corrections Officer, so attend appointments on time. You must undergo assessment and treatment for drug abuse and dependency. Undergo assessment and treatment for alcohol abuse and dependency. You must undergo mental health assessments and treatments as directed by the regional manager, and you must participate in programs and courses that address factors that might relate to your offending, and reduce the risk of re-offending.
55So there is a series of programs all directed at your rehabilitation, but they are, as I have said, you must turn up when you are required on time, stay for as long as it takes and be there the next day that you are required back. It is not optional.
56There may be people within the groups that you come across at unpaid community work, or at maybe even some of the drug testing and all the rest of it, or drug programs. They may not be as dedicated to overcoming problems as you seem to be. You just cannot get dragged down. If you get in with them and get influenced by them, all that you have done will just be brought undone, you will be back offending, looking for drugs, committing crimes, and I will just be required to send you to gaol for this armed robbery. Follow?
57OFFENDER: Yes, Your Honour.
58HIS HONOUR: Right. It is up to you, if you sign this, it brings the matter to an end.
59Thank you. I thank counsel for their very considerable assistance in this matter.
60MS MAXWELL: Your Honour pleases.
61MS CASEY: Your Honour pleases.
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