Director of Public Prosecutions v Krstanovski

[2014] VCC 14

IN THE COUNTY COURT OF VICTORIA Revised
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01720

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIRE KRSTANOVSKI

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JUDGE:	Her Honour Judge Gaynor
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2014
DATE OF SENTENCE:	20 January 2014
CASE MAY BE CITED AS:	DPP v Krstanovski
MEDIUM NEUTRAL CITATION:	[2014] VCC 14

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. O’Halloran
For the Accused	Ms K. Ljubcic

HER HONOUR:

1        Kire Krstanovski, you have pleaded guilty before me to one charge of recklessly causing serious injury and have admitted prior convictions. 

2       The facts underlying your offending are as follows:

3       On 5 May 2013 you attended the home of your victim at his unit in Williamstown.  You had previously stayed at the victim's house, although you were not living there at the time of this offending, and about four days before attending had been confronted by the victim who believed that you had stolen some of his possession while you were staying with him. 

4       You entered a rear door of the building and stood in the hallway outside the door of the victim's unit and began yelling at him, at which time you had a knife in your right hand in was in fact a box cutter. 

5       You threw a punch with your left hand at the victim, hitting him to the face, then entered his unit and grabbed hold of him, the victim struggling and trying to get away and wrestling with you in the hallway.  During this struggle you struck him with the knife which you had kept in your right hand to the left side of his neck. 

6       The victim managed to push you away and run along the hallway, you chasing him into a shared common area.  In that area the victim continued to try and run away but was grabbed again by you, pushed against a door and again struck with the knife by you to the back of his head in the neck area.  He broke away from you, you further chasing him, at which time the victim was bleeding from his wounds through his shirt.  He then fell to the floor and whilst on the floor you kicked him to the head and body. 

7       Following this, in an area at the rear of the building over about 30 seconds using your left and right fists you punched the victim several times to his head and face and attempted to strangle him, took his phone out of his hand and then further physically and verbally remonstrated with him. 

8       You then grabbed hold of the victim again as he tried to run away through an exit door but the victim was able to break from your hold and cross to the Williamstown police, where he spoke of the offending. 

9       This offending was captured on CCTV footage which I viewed during the plea. 

10      Police then attended the victim's building where they found you inside the unit and located the knife used. 

11      Ultimately, the victim was taken to the North Hospital Emergency Department where he was found to be suffering from two open wounds, one over the back of the left shoulder and one over the left side of the neck.  There were five stitches over the back of the left shoulder and a number of stitches on the left side of his neck.  I saw photographs of the injuries, in particular I regard the slashing to the victim's neck as particularly grave.  It appears to be several inches long and dangerously close to an artery. 

12      You were ultimately interviewed by police on May 8, several days after your arrest having been first been found by a Victorian Institute of Forensic Medicine physician to be not fit to be interviewed. 

13      You conducted a cooperative record of interview with police admitting your offending, although you gave several versions, first stating that you were attacked by the victim and were then responding by way of self‑defence.  You told police that you had taken about 50 benzodiazepine tablets and had little memory.  You said you recalled cutting the victim's throat.  You told police that you wanted to slit your victim's throat and that you were trying to kill him, but then, as was pointed out by your counsel in a most helpful plea, went on to say that in fact you had no idea why you did what you did.  You called yourself "a stupid cunt" and expressed remorse for your offending. 

14      A plea of guilty was entered by you at the earliest opportunity.  This is a matter I am taking into account as mitigatory and which I do regard as an expression of remorse.  You have remained in custody since 5 May 2013. 

15      Whilst in gaol your counsel informed me you have not presented with any management issues.  You have been promoted to a position as a billet in the kitchen and have been given the responsibility of caring for a vulnerable prisoner who is suffering liver cancer, where you clean out his cell, prepare his meals and take him to his hospital appointments.  You also work out at the gym. 

16      I now turn to your personal circumstances. 

17      You are 31 years of age, the second eldest of two boys born to your parents.  Your parents are of Macedonian extraction.  Your mother worked in a factory and your father, who is present in court to support you, works as a cleaner. 

18      Your parents separated when you were about 14 following some years of fairly severe domestic violence. 

19      Your older brother is employed in the information technology industry, is married with children, lives in a house around the corner from your mother in Thomastown where you grew up and remains close to both you and your mother.  You have also maintained a good relationship with your father. 

20      It appears that you have always suffered from some form of intellectual disability, your counsel informing me that this was in fact not picked up until you were in secondary school and to this day you remain functionally illiterate. 

21      At about the age of 11 you unfortunately made friends with older boys in the community where you grew up and began using heroin at a very early age, and I note from the report of psychiatrist Dr Lester Walton, dated 7 August 2000, which was tendered on the plea, you have told him that you have used heroin on more or less a continuous basis ever since.  However your drug use has not been confined to heroin.  From the age of 15 you were using amphetamine in substantial quantities and unfortunately in recent times your amphetamine use has graduated to methylamphetamine, that is ice. 

22      You left school at about the age of 15 or 16 and you have never worked.  You were placed on a disability pension, it would seem, from a fairly early age. 

23      I was handed a report of Dr Paul Grech, an old report, dated in 2005, where psychological testing revealed that you had an IQ of 58, which is extremely low. 

24      It would seem according to both Dr Grech and Dr Walton, and I note that Dr Walton did not seem to undertake any formal psychological testing so that the assessment I do have is almost a decade old, that the intellectual disability you suffer appears to be a combination both of genetic factors, your mother it appears has some difficulties herself, there appears to have been some head injuries that you suffered as a child as a result of domestic violence and because of your almost non-stop drug addiction, and it is a poly‑substance abuse that you engage in, over what is coming up to more than 20 years. 

25      In any event, the offending that has brought you before this court is an escalation in my view of previous offending.  You have a long prior criminal history going back to the late 1990s, mostly involving property offending but also giving indications of some violence, you having been dealt with in the past for aggravated burglary, for robbery and for assault.  You have been placed on a community‑based order on several occasions.  They contained the conditions that you would be treated for psychological and psychiatric difficulties and for drug abuse.  You have never been able to complete a community‑based order and, indeed, have received a number of gaol sentences because you have breached those orders by further offending.  You have been gaoled on a number of occasions. 

26      I received a reference from your brother Robert who was due to work commitments unable to attend court.  In that reference he speaks very affectionately and lovingly of you.  He writes in a way which makes it clear in my view that you continue to enjoy his support and a close relationship with him.  He states in his reference dated 20 January 2014 that every time you are released from gaol you are hopeful and try to remain out of trouble and be there for your mother and your family but inevitably come into contact with old drug using friends and relapse back into drug use. 

27      On the occasion of this offending you had been out of gaol for a period of only two months before you began using drugs again.  The offending itself took place about four months after you got out of gaol. 

28      Your counsel informed me that you met a young woman in the Footscray mall.  You became involved with her, you had managed to stay off drugs up until that time.  She was a heavy drug user, it would appear an ice user.  You succumbed, and succumbed, as is often the case, in a very dramatic fashion and started using something in the nature of, according to what you have told Dr Walton, six grams of ice a day. 

29      Certainly the attack that I viewed on footage was extremely violent.  It certainly appeared to have been an attack of rage and it continued on despite the victim's attempts to get away from you until he was successful in doing so.  It was very violent.  On several occasions you appeared to be trying to strangle him.  You used a box cutter which is a terribly violent instrument.  You inflicted nasty wounds and you are indeed lucky that you did not cause further damage or even the death of your victim. 

30      It is accepted that the principles of Verdins have application in your case.  I accept the opinion of Dr Walton, which is that your intellectual disability combined with your drug use, and I accept that you were extremely drug affected on the day of this offending, meant that, to quote Dr Walton it was "highly likely that he would be more prone than others to disinhibited aggressive behaviour, all the more so if he were addled by drugs".  That is I accept that the dual difficulties of intellectual disability and drug addiction were directly attributable to this offending, that is your extremely violent reaction to the notion that the victim was accusing you of having stolen items from him in a way which simply did not warrant the attack that you unleashed upon him, such that the moral culpability attached to this offending should be reduced and that should be reflected in the sentence I ultimately impose. 

31      I also accept Dr Walton's opinion that you are a person who would, again to quote him "... endure imprisonment as more onerous than others.  He is likely to be exploited by prisoners more intellectually able than him."  Dr Walton also makes the point that incarceration per se would have limited specific deterrent effect so that in my view whilst specific deterrence is an issue that I need to turn some attention to, because of your own intellectual difficulties that is less likely to have any particular effect upon you. 

32      I accept in your favour that you are remorseful for your offending, that you have behaved well in gaol.  I accept that you have family support.  As against this, however, it seems to me that your prospects of rehabilitation are poor.  This is because even though every time you come out of gaol you hope you can turn things around, you hope you can stay off drugs, you do not want to keep behaving in the way that you do, your ability to change things is very limited.  You need to go back to live with your mother because that is the only accommodation you have.  That means you go straight back to the area you grew up, where your friends are, or your drug taking friends are, and ultimately you relapse. 

33      The attack you engaged in on this occasion, as I have said several times, was extraordinarily dangerous so that protection of the community remains a pivotal aspect for any sentencing court in this case.  It has not been argued that anything other than a gaol sentence is appropriate in your case.  I do note that at the end of your record of interview you attempted a sort of suicide attempt, you tried to stab yourself with a pen, and I also accept that several months ago you somehow found the means to cut yourself so severely in gaol that you were hospitalised for 13 days and were placed on suicide watch it would seem for a month afterwards.  That in itself has resulted in some further difficulty for you in gaol and you are now sharing a cell.  I note Dr Walton's comments that you suffer from a certain level of paranoia and those factors as well add to what I have agreed is a properly applied Verdins principle that gaol is a more difficult exercise for you than other prisoners. 

34      At the end of the day, however, it is protection of the community which unfortunately remains as the primary aspect that the court must have regard to.  So whilst in sentencing you I do accept that the community would not expect for you to receive the sort of sentence that a person less disabled than you would have in the circumstances, it is my view that you should receive a sentence which extends beyond the time you have already served but it is a sentence which is lesser than it would have otherwise been in the circumstances and will involve a fair degree of parole. 

35      What I have just said I have said in really legal language.  I am supposed to do that.  I want you to understand what has happened.  I understand things are pretty tough for you in gaol, is that right? 

36      OFFENDER:  Yeah, a little bit. 

37      HER HONOUR:  You find it really hard but you are staying off drugs? 

38      OFFENDER:  Yeah.

39      HER HONOUR:  That is really good.  You do not get to be a billet unless you are doing okay in gaol, I get that.  I get that you are looking after somebody else who is pretty crook in gaol, is that as well? 

40      OFFENDER:  Yes.

41      HER HONOUR:  Is that something you get a bit of satisfaction out of? 

42      OFFENDER:  Yeah.

43      HER HONOUR:  You like looking after him? 

44      OFFENDER:  I feel good about it, yeah.

45      HER HONOUR:  Yes.  Look, you know, you have got good family.  It seems to me the way you have been behaving in gaol, you know, if you can get a grip on the drugs you are going to have an all right life. 

46      OFFENDER:  Yeah.

47      HER HONOUR:  And ice just makes you feel terrible, doesn't it? 

48      OFFENDER:  Yeah, I know.

49      HER HONOUR:  You just feel so depressed afterwards, no wonder you want to kill ‑ ‑ ‑

50      OFFENDER:  In a hole.

51      HER HONOUR:  Pardon? 

52      OFFENDER:  It just puts you in a hole.

53      HER HONOUR:  It puts you right in a hole.  Okay.  Look, the problem is what you did to this bloke was so serious.

54      OFFENDER:  Yeah, I know.

55      HER HONOUR:  I know you know.  Yes.  What happens is, as you'd know, you've been to court heaps of times, the more times you go to court the more time you get, all right?  So you're going to get a bit of a whack off me today.

56      OFFENDER:  Yeah.

57      HER HONOUR:  All right.  You heard me say four with a two? 

58      OFFENDER:  Yeah.

59      HER HONOUR:  I'll be taking into account the time you've served.

60      OFFENDER:  All right.

61      HER HONOUR:  All right.  So you've got about 14 months to go.

62      OFFENDER:  All right.  Too good. 

63      HER HONOUR:  You reckon you'll be all right with that? 

64      OFFENDER:  Yeah, yeah. 

65      HER HONOUR:  When you come out you'll be on parole.

66      OFFENDER:  All right. 

67      HER HONOUR:  Okay.  Now, the trouble with parole is this, it's not like being on a community‑based order, okay?  If you muck up on parole they'll put you back inside again.

68      OFFENDER:  No, I had parole like, last year, yeah? 

69      HER HONOUR:  Yes.

70      OFFENDER:  I cleared the parole.

71      HER HONOUR:  Did you? 

72      OFFENDER:  Yeah, I finished parole.

73      HER HONOUR:  That's really good.  Look, you're in a much better boat than a lot of blokes that appear before me, okay?  You've got family, you've got good family.

74      OFFENDER:  Yeah, I know. 

75      HER HONOUR:  You've got a good brother, he loves you, you can tell from the reference.  I bet your nieces and nephews really like you, do they? 

76      OFFENDER:  Yeah.

77      HER HONOUR:  You get on well with your sister‑in‑law? 

78      OFFENDER:  Yeah, sometimes.

79      HER HONOUR:  Sometimes.

80      OFFENDER:  Here and there.

81      HER HONOUR:  Yeah, I can imagine.  Look, you know, I don't know how you're going to do it but somehow you're just going to have to kick these drugs.

82      OFFENDER:  Yeah.

83      HER HONOUR:  Okay?  I know I'm not the first magistrate or judge to say that to you.  Hopefully I'll be the last. 

84      OFFENDER:  Thank you.

85      HER HONOUR:  That's your problem.  That's what you're going to get and that's why.  It was just too serious.  Slashing a bloke with a box cutter across your throat, you're really lucky you're not looking at 20 years.

86      OFFENDER:  Yeah, I know.

87      HER HONOUR:  You could have killed him.

88      OFFENDER:  Yeah, I know. 

89      HER HONOUR:  You've done the right thing.  You're doing well in gaol.  I'd have given you a lot more if you weren't, all right? 

90      OFFENDER:  All right.

91      HER HONOUR:  Have a seat. 

92      OFFENDER:  Thank you.

93      HIS HONOUR:  Thank you. 

94      In all the circumstances I sentence you to a term of imprisonment of four years.  I order that you serve a minimum term of two years before becoming eligible for parole.  How much time has he served, please?  

95      MR O'HALLORAN:  290 days, Your Honour. 

96      HER HONOUR:  Does that include today? 

97      MR O'HALLORAN:  Not including today. 

98      HER HONOUR:  I direct that 291 days of this sentence has already been served by way of pre‑sentence detention.  I also note that no victim impact statement was received. 

99      Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five and a half years and order that you serve a minimum term of three and a half year. 

100     I order that the matters referred to in the disposal order are in fact disposed of. 

101     I am going to make sure my sentencing remarks go to the Parole Board, I would like these included.  It is certainly my view that when Mr Krstanovski is released on parole he requires a very intensive system of support.  It is my view, for what it is worth, that the possibility of having him placed in a residential drug rehabilitation facility is a matter that should be looked at as a matter of priority.  It seems quite clear that Mr Krstanovski's capacity to deal with his drug addiction is enhanced in an institutional setting.

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