Director of Public Prosecutions v Ljuboja

[2019] VCC 239

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00396

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEMANJA LJUBOJA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2019
CASE MAY BE CITED AS:	DPP v Ljuboja
MEDIUM NEUTRAL CITATION:	[2019] VCC 239

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Peek
For the Accused	Mr I. Barker

HER HONOUR:

1Nemanja Ljuboja, you have pleaded guilty before me to one charge of aggravated burglary on the basis that a person was present, and one charge of intentionally destroying property.  The facts underlying your offending are as follows.

2The victims in this matter were 48 year old David Lennard and his son, Nicholas, who at the time of the offending was 19 and had a pre-existing acquired brain injury.  You and the Lennards were neighbours and known to each other although you were not friends.  You were 31 at the time of this offending and you were on bail, which was granted to you on 14 February 2018 to appear at the Ringwood Magistrates' Court on charges of criminal damage and burglary.

3On 26 February 2018, the Lennards were both in the bedrooms at their home on Wantirna South when at about 7.30 you went to their home and entered through the unlocked front door.  Mr Lennard heard the front door bang loudly and went to investigate, seeing you in the hallway attempting to hide.  He recognised you as his neighbour and he later told police that you appeared to be alcohol affected and agitated.

4You started walking towards Mr Lennard with both arms in the air and when he asked you what you were doing in his house and asked you to leave you said you were not there to hurt him but then grabbed him by both shoulders and head butted him.  As this was happening Mr Lennard pushed you on the chest to get free, then you punched him with a closed fist.  At this point, Mr Lennard was able to get away into his bedroom and shut the door, leaning against it to hold it shut.

5At this point Mr Lennard began to feel a tightness in his chest.  You hit the door and started pushing it, trying to open it, eventually punching a hole in the door.  You picked up a small air compressor from the hallway and threw it through a hole of the door at Mr Lennard but it missed him by a few centimetres.  At this point Mr Lennard was sweating and feeling pain at the centre of his chest.

6You began kicking the lower half of the door, causing it to flick and hit
Mr Lennard on the left-hand side of his chest.  By this stage Nicholas Lennard had woken up and moved to the hallway area, at which state you casually said hello to him.  I hope you realise, Mr Ljuboja, how strange your behaviour sounds and how clearly affected by alcohol you were.

7You kept kicking and hitting Mr Lennard's bedroom door, eventually breaking it in half.  At this stage Mr Lennard was in great pain, sat on the bed and told his son to call an ambulance because he was having a heart attack.  You started yelling, "Don't call the police and don't call the ambulance", and yelling, "I would not have hurt you".

8Mr Nicholas Lennard passed the telephone to his father so he could speak with the ambulance and you went to the kitchen and took a can of Canadian Club Bourbon from Mr Lennard’s fridge and drank it quickly.  You then went to the lounge room and punched David Lennard's 60 inch LED TV, valued at $1000.

9Paramedics attended at about 8 am and when they entered the house, saw you standing in the doorway of the master bedroom, noting that you were bleeding and that the bedroom door was broken.  Inside the bedroom the ambulance officers located Mr Lennard, who was seated on the bed, clutching his chest and visibly distressed.  Mr Lennard then received treatment in the ambulance whilst the ambulance officers organised for police to attend the address.

10While waiting for police to arrive you tried to get into the ambulance by opening the door.  The paramedics decided to move the ambulance a few streets away and wait for police there but while waiting there you again located the ambulance and again tried to get inside it by opening the door.  The paramedics decided then to transport Mr Lennard to the Dandenong Hospital for treatment.

11Police attended the scene and found you apparently drunk and pacing around Mr Lennard's front yard.  You were slurring your words and police could smell alcohol on your breath.  Police then spoke to Nicholas Lennard, who told them about the incident and they saw blood in the house, damage to the bedroom door and two holes in the television.  Mr Lennard was discharged from the Dandenong Hospital five days later and it was ascertained he had suffered a heart attack.  Police observed a cut to Mr Lennard's little finger on his right hand and a small cut to the top of his head, which they believe was sustained during your assault upon him.

12You were arrested without incident and placed in the divvy van, later conveyed to the Knox Police Station for interview, which took place after you had sobered up.  You gave a no comment record of interview.

13You indicated an intention to plead guilty to the charges on the indictment at committal hearing at the Melbourne Magistrates' Court on 2 August 2018.  At the time of this offending you were on a Community Corrections Order.  You have pleaded guilty before this court to the summary charge of breaching a Community Corrections Order.

14You have a long history of offending, beginning in 2006 in Western Australia, having been dealt with on a number of occasions for driving with an excess of 0.08 per cent of alcohol in your bloodstream.  You have been dealt with for aggravated burglary, theft, wilful damage, and breach of a suspended sentence.  You, on 14 January 2013, were sentenced to seven months' imprisonment.

15In Victoria in February 2016 you were sentenced to 90 days' imprisonment on charges of unlawful assault, theft of a motor vehicle, unlicensed driving and contravening a personal safety intervention order.  On 29 September 2016, you were sentenced to 347 days on charges of false imprisonment and intentionally causing injury.  On 6 October 2017, you were sentenced to 45 days' imprisonment, the charge is unlicensed driving, theft from a shop, theft of a motor vehicle, going equipped to steal, possessing a prohibited weapon and wilful damage.  You were placed on a Community Corrections Order - sorry, if one of you could assist me.  Madam Prosecutor, I apologise.

16MS PEEK:  Yes, Your Honour, I believe that the Community Corrections Order was made on 26 September 2016.

17HER HONOUR:  Which order was made on 26 September 2016.  I in fact, placed you on that order.

18MS PEEK:  Yes.

19HER HONOUR:  That related to two charges of intentionally causing injury and one charge of false imprisonment and that related to an attack on another person with a hammer and a restraint of that person using cable ties, that person then being taken to the front yard and kicked by you and your
co-accused.  It appears that you made no attempt whatsoever to undertake any of the conditions of that order. 

20You are now 32 years of age.  You were born in Bosnia and your parents emigrated to Australia when you were young, leaving you to be raised by your grandparents until 1996 when you came here.  During the time you were in Bosnia, you underwent a series of traumatic experiences during the war, including seeing a six year old Muslim friend being taken away and then killed in front of you.

21Your mother and your father and stepmother settled in Perth and you joined them there but you did not settle, running away from home when you were 13.  You lived with associates and friends that you had made, attending school and completing Year 10.

22You have a reasonable work history.  You worked as a labourer from about 2004, specifically as a brickies labourer between 2005 and 2010 with the same employer, one Tony Condello in Perth.  You then worked in the produce section of IGA Supermarkets for about three years.  In 2011 you formed a relationship with a woman by whom you had a daughter, she moving to Melbourne in 2013 and you following her.

23Over the years you have got into an amount of criminal trouble in Western Australia as I have already outlined.  As a result of the criminal trouble and your eventual gaoling in 2013 for seven months, you and your partner split, she as I have said, moving to Melbourne.  Once you arrived in Melbourne after your release from gaol you lived with her for a brief period of time but then separated, although you then had regular contact with your daughter.

24You began using drugs and alcohol in your teens but alcohol has been the main problem for you.  You also began using cannabis at an early age.  When your daughter was born you tried to reduce your use of alcohol and cannabis and also amphetamines, which had been somewhat of a problem for you at the time.

25In Melbourne you laboured for a landscape gardener for about six months but that was your last period of employment.  You were dealt with in Melbourne for, as I have said, a breach of intervention order, which was taken out by a friend and his wife in relation to a money dispute, and on 10 February 2016 you were dealt with unlawful assault and breach of that intervention order.

26In Melbourne you lived in Frankston, sharing a flat with a friend, but at the time that you were arrested for the matter for which you were placed on a Community Corrections Order in September 2016, the relationship with your daughter's mother had broken down and she has a new partner.  However, it appears you have been able to maintain contact with your daughter, who has been visiting you weekly whilst in gaol.

27As a result of this offending and your counsel's submission that I place you on a further Community Corrections Order, I sought an extended pre-sentence assessment outcome report.  Of concern was the fact that when describing this incident to Community Corrections, you appeared to minimise what occurred.  Do you know what I mean by that?

28ACCUSED:  Yes, Your Honour.

29HER HONOUR:  It means that you basically gave them a version of events where you said Mr Lennard suddenly head butted you.  You dismissed the amount of damage that you did.  You described your offending in a way which made it seem far less than it was and appeared not to have much sympathy for your neighbour and his heart attack.  It was noted by Corrections that you have a significant criminal history, both in Western Australia and here.  It was noted that when you were talking about the offending that led to my placing you on a Community Corrections Order in September 2016, you said that the victim of that offending, "Done something", that resulted in a friend losing access to her children for two years and then because he had what you called the cheek to turn up to a birthday party, you and your friend then bashed him.

30It was noted that you never physically reported for the Community Corrections Order that this court placed you on and telephoned only once, but instead committed a series of other offences including theft of a motor vehicle, unlicensed driving, going equipped to steal, for which you got a further 45 days' imprisonment on 6 October 2017.  You had been caught in a stolen car and drove off without paying for fuel.  As I said, you also have outstanding matters in the Ringwood Magistrates' Court, being one count of criminal damage and two charges of burglary allegedly committed on 12 December 2017.

31You have been assessed by Corrections as being a high risk of re-offending.  You told Corrections that you would, "Get really wasted", three times a week.  You have formed a new relationship with a young woman who has got supportive parents.  She herself has a past history of heroin addiction.  By her you have a seven month old daughter.  She now resides with her parents, who have zero drug tolerance.  It appears that she is doing well and also appears that you have a home with that family on your release from gaol.  As I remarked to you during the further plea hearing, that is extremely generous of them in the circumstances.

32Corrections have a number of concerns about you, understandably.  It was noted that you have strongly pro-criminal and antisocial patterns.  You also generally associate with people who have drug and alcohol problems as those are the sort of people who looked after you when you were a teenager.  I am sure those people were extremely helpful to you in those difficult days when you were a teenager, but you are 32 now and it is time you stopped hanging around with people like that, Mr Ljuboja, and that is something you have got to be very careful of when you are finally released from gaol.  You told Corrections you have only ever had one friend who was a positive influence on you, a
Mr Craig Byrne, who did not use drugs and who did not drink and held down a job.

33Corrections also spoke to Ms Jennifer Hailey, whose home you are allowed to live in once you leave here but Ms Hailey made it clear that while you have permission to live in the family home in the short-term, she expects you and your partner, Christie, to find your own accommodation once you are stable and employed.  You have no contact with your own parents, siblings or other relatives.

34What is difficult for you as well is that it appears you have never obtained citizenship to this country, you have permanent residency.  Under new legislation the Department  of - is it Immigration or Border Control now?

35MR BARKER:  Immigration, Your Honour.

36HER HONOUR:  The Department of Immigration are now involved in your life.  It has been explained to you during the further plea hearing that if you continue to get in trouble, you may well be deported to Bosnia.  Corrections noted there do appear to be some positive signs with you.  Whilst in gaol on this occasion, (and you have remained in custody since your arrest), you have undertaken courses in prison and you have been assigned as a billet, which is a position of trust.  It is noted that whenever you have been in gaol before you have repeatedly been in trouble for bad behaviour.  This time apparently your stay in gaol has been without incident.  You have undertaken what courses you can in gaol.  You have been in contact with Alcoholics Anonymous whilst in gaol.  Is that right?

37ACCUSED:  Yeah, every Saturday mornings.

38HER HONOUR:  You have been attending on a weekly basis on a Saturday morning.  This is extremely encouraging.  Hopefully you will keep that up once you are released from gaol and, indeed, that is something that I will be checking up on during judicial monitoring.

39So whilst you have been assessed as a high risk offender and what is described as a - are you listening to me, Mr Ljuboja, as a chronic alcoholic with a significant criminal history, you have been found suitable for further placement on a Community Corrections Order.  Corrections say they do this with significant reservations.  Now, you need to understand something as well, Mr Ljuboja.  Corrections have decided you are a high risk, and clearly you are.  They will be watching you like a hawk.  You will be micro-managed by them, all right?

40ACCUSED:  Yes.

41HER HONOUR:  Do you understand why they will be doing that?

42ACCUSED:  'Cause I - they think I'm a high risk of offending.

43HER HONOUR:  Yes, they reckon you are going to get into trouble and go out and do this again.

44ACCUSED:  I won't.

45HER HONOUR:  Yes, I hope not but they will be watching you and that is going to annoy you but you are just going to have to wear it, all right?

46ACCUSED:  All right.

47HER HONOUR:  Good.  I hope you understand that.  So I am going to place you on a Community Corrections Order but it will be combined with a sentence of imprisonment which I will declare to have been served by way of pre-sentence detention.  So in relation to all the charges - I can do - yes, because it is all part of the offending.

48MS PEEK:  Yes, Your Honour.

49HER HONOUR:  All right.  So on the charges of aggravated burglary, criminal damage and breach of Community Corrections Order and committing an indictable offence on bail, I am going to place you, I am going to sentence you a term of imprisonment of six months, which sentence I declare to already have been served by way of pre-sentence detention and then you will be released on a Community Corrections Order for a period of two years.  Stand up, please, sir.  Before I can place you on this order you must consent to it and so I need to explain the conditions that you will be undertaking.

50They are that when you are released you must report to the Office of Corrections within two working days of the making of this order, that is by Thursday of this week.  While you are on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and be gaoled.  It means that if you commit an offence for which you could go to gaol, like knocking off a box of matches from the supermarket, that will be a breach.  It will also be a breach if you do not obey the conditions on the order.  While you are on the order you may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from the Community Corrections office.  You must report any change of address or employment within 48 hours of that change.  You must not attend upon the Office of Corrections under the influence of drugs or alcohol.  You must obey all lawful directions of the Community Corrections office.

51I am ordering that you undertake 250 hours of unpaid community work.  You will be under supervision.  You must undertake programs to reduce
re-offending.  You are to be assessed for alcohol treatment.  It is suggested that I make an order that you be excluded from drinking alcohol.  That worries me.  Mr Barker?

52MR BARKER:  It is a bit difficult, Your Honour.

53HER HONOUR:  Pardon?

54MR BARKER:  It is a bit difficult.

55ACCUSED:  I'm happy to do it, Your Honour.

56HER HONOUR:  Look, what I am going to do is I will just order that there be treatment and assessment of alcohol.  I am going to order assessment and treatment for illicit drug use.  You are to attend for psychological treatment and there is going to be judicial monitoring, all right?

57ACCUSED:  Yes.

58MR BARKER:  Just one thing, Your Honour.  He can't attend by 4 pm on Thursday.

59HER HONOUR:  Well, he can't because he's got this - now, I note that you will not be released until your matter is dealt with on 29 January.  So I can make the order start from today.  I think I should, but it needs to be noted that it cannot be.

60ACCUSED:  I will be on - my next court date is on 15 February.

61HER HONOUR:  I cannot - see, I do not know what the magistrate is going to do.

62ACCUSED:  Okay.

63HER HONOUR:  So I am going to place you on a community corrections order.  What do you suggest that I do?  Have a seat, Mr Ljuboja.  Mr Barker?

64MR BARKER:  Simply report within two clear days of his release from custody.

65HER HONOUR:  All right.  So you report within two clear days of your release from custody, and we will just simply - we can phrase the order so that the order commences on his release from custody?

66ASSOCIATE:  Yes, I will just make a note that it is in relation to another matter.

67HER HONOUR:  All right.  So we will note that on the documentation.

68MR BARKER:  Thank you, Your Honour.

69ASSOCIATE:  (Indistinct words) and to report after he is released.

70HER HONOUR:  Yes.  All right, and so the judicial monitoring - I will make the judicial monitoring two months because if he is not out in two months, well - - -

71MR BARKER:  Too bad, yes.

72HER HONOUR:  Too bad, the order is not going to work, is it?  So I will be seeing you at 9.30.  You are living in the Lilydale area, are you not?  Yes.  Well, I am going to order - you can go the Community Corrections office and we can beam you in.  You do not have to come here to court.  Be on time.  I am sick of people on judicial monitoring being late.  It will be 9.30 and you are to be there at 9.30.  I am not going to be happy if that does not happen.  And what is the date?

73ASSOCIATE:  15 April.

74HER HONOUR:  15 April at 9.30 will be your first judicial monitoring.  All right.  I will get a report from Corrections about how you are going.

75ACCUSED:  All right, thank you, Your Honour.

76HER HONOUR:  Good.  All right, we will get the documentation.

77MR BARKER:  Thank you, Your Honour.

78MS PEEK:  Just one more thing, Your Honour.  There was an order 464.

79HER HONOUR:  Yes, I will sign that and I think because it is a - I have to do a s.464Z - - -

80MR BARKER:  6AAA.

81MS PEEK:  6AAA declaration, Your Honour.

82HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to three years' imprisonment, and ordered that you serve a minimum of 18 months.  We will just wait for the documentation.  Thank you.

83MR BARKER:  Your Honour, may I approach my client when ready.

84HER HONOUR:  Yes, of course you may, Mr Barker.  That is fine.  I really want you to do well on this Mr Ljuboja, but you are going to have to work hard.  Do you understand that?

85ACCUSED:  Yes, Your Honour.

86HER HONOUR:  Yes, you say you do.  We will see.

87ACCUSED:  You'll see.

88HER HONOUR:  Proof's in the pudding.

89ACCUSED:  Yep.

90HER HONOUR:  All right.  Thank you.

91ACCUSED:  I'll prove, Your Honour, this time I'm well.  I've given - I'll actually do it this time, Your Honour.

92HER HONOUR:  Yes, I know.  Well, you have done some ground work in gaol so that is a good start.  I had to say this to the last bloke, but I am saying it to you.  You are coming to crunch time, Mr Ljuboja.  You have got so many violent priors.  You drink, you get violent.  You know, you are going to be doing a couple of years.  Two, three years next time, you know?  You are a bloke who can work, you have got a reasonably work history.  You have just got a really bad temper and you have an alcohol problem, all right.

93MR BARKER:  Your Honour, he is very fortunate.  His partner's mother is a very positive influence.

94HER HONOUR:  All right, and it would be very good if you can have some contact with Corrections so I can find out from - a bit of a report from you, how he is travelling as well, all right.  Because I am bringing him back every eight weeks so I can keep an eye on him.  So you let me know, all right.

95VOICE (from the body of the court):  Yes.

96HER HONOUR:  I would be grateful, thank you.  Yes, you can go Mr Barker.

97MR BARKER:  Thank you, Your Honour.

98HER HONOUR: Mr Ljuboja, I know I keep talking to you.  But just remember, you know, how terrifying was it for you when your father was violent?  I bet you can still remember how you felt, can you?

99ACCUSED:  Ah, yeah, I do.  It's like when you - was towards my mother like, it was - it was scary.  It wasn't until he pounded on me.

100HER HONOUR:  Yes.

101ACCUSED:  He'd take a lot on me.

102HER HONOUR:  It is horrible, but it is terrifying seeing your mother getting attacked, and it is even more terrifying as you know when they turn on you.  It is horrible having a violent parent.  Your whole feeling safe in the world just disappears.

103ACCUSED:  Yeah.

104HER HONOUR:  You know, this is a confident happy little girl, mum and grandmother clearly are doing a good job with her.  You know, life is great for your daughter, she jumps around and it is fun and everything is lovely.  You can wreck that with one session of yelling.  You can shatter all that, you know.  She is your daughter.  You want her to grow up, keep growing up the way she is going, even if she drives you nuts.  That is what you want.  Is it not?

105ACCUSED:  Yeah, I'll be - I'll be doing my best, Your Honour.

106HER HONOUR:  Just try and always remember what it was like for you.  All right.

107ACCUSED:  Yeah, well, I do.  I have.

108HER HONOUR:  Yes, I think it is really important.  I mean, it is to your credit that you have kept up the contact you have with your daughter.  But you try and remember when you are on the sauce, all right.  You are a terrifying man.  All right.  What is the other thing you have to do when you get out Mr Ljuboja?

109ACCUSED:  Sorry, Your Honour?

110HER HONOUR:  What is the other thing you have to do when you get out?

111

ACCUSED:  Well amongst the CCO, I have to get in contact with the local

AA - - -

112HER HONOUR:  Exactly.  Excellent.  That is not even on the CCO.  I cannot make it an order.  It is just something that I want you to do.

113ACCUSED:  All right.

114HER HONOUR:  All right.

115ACCUSED:  Yes.

116HER HONOUR:  So my associate's taken a note, I want to know you have joined.  All right, you need to go a lot when you go out.  You have got to make new mates.  Do you come from that area?  Is that where you were living before you went in?

117ACCUSED:  Close by, yeah.  Not far away from that area.

118HER HONOUR:  You have just got to stay away from your old party mates.  They have got to go.  They have to go.

119ACCUSED:  Yeah.

120VOICE:  They won't be free to hang around.  It's only once when I - - -

121HER HONOUR:  Yes, I just do not want them running around, "Oh g'day, you're out.  Beauty, let's go to the pub, celebrate your freedom".  No, it is him going off with them somewhere else that worries me.  You cannot do that.  You cannot go off and party with them at all.

122ACCUSED:  Well, I won't see them anymore.

123HER HONOUR:  Good.  How many of them came and saw you in gaol?

124ACCUSED:  Not one.

125HER HONOUR:  Not one, exactly.  They are not your mates.  They are your drinking partners, that is it.  Well, the final thing is this, Mr Ljuboja.  It sounds to me like you are perfectly capable of getting work, and that you are probably are going to want to get work and you will get work.  All right.  Do not think that work is more important than the things you have to do on this order.

126ACCUSED:  Yes.

127HER HONOUR:  A lot of blokes make that mistake.  All right.

128ACCUSED:  Yep, I already realise that.

129HER HONOUR:  All right.  I am going to say this, and I say this to everyone, it is really boring.  There is you, there is gaol, in the middle is the Corrections order.  That is the only thing that is keeping you out of goal.  So you know, Corrections say, "Jump" you say, "How high?".  All right.  You have to be absolutely charming to them all the time.  Losing it and getting annoyed with them will get you nowhere.  All right, we will get you to sign there.  Here you are, Mr Barker.  Thank you very much.

130MR BARKER:  Thank you, Your Honour.

131HER HONOUR:  Thank you very much.  Yes, thank you.  I thank counsel for their assistance.  Good luck, Mr Ljuboja.

132ACCUSED:  Thank you, Your Honour.

133HER HONOUR:  See you in April.

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