Director of Public Prosecutions v Ljuboja

[2016] VCC 1436

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00395

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEMANJA ROBERT LJUBOJA
DARREN ROBERT DELPHIN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 September 2016
CASE MAY BE CITED AS:	DPP v Ljuboja & Anor
MEDIUM NEUTRAL CITATION:	[2016] VCC 1436

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 F. Holmes
For Offender Ljuboja	Ms O. Thompson
For Offender Delphin	Mr R. Chandhuri

HER HONOUR:

1Nemanja Robert Ljuboja and Darren Robert Delphin, you have each pleaded guilty before me to the following offences.  You, Mr Ljuboja, to two charges of intentionally causing injury and one charge of false imprisonment; and you,
Mr Delphin, to one charge of intentionally causing injury and one charge of false imprisonment. 

2The facts underlying your offending are as follows.

3On 18 July 2015, Joanne Abela, who was the partner of you, Mr Delphin, hosted a birthday celebration at her home in Quarry Road, Langwarrin.  She invited the victim in this matter, Kevin Gardiner, to join the two of you.  It was a small celebration with her daughter and a couple of her friends attending for a short time.  At about midnight, you, Mr Ljuboja, and your partner, Tori Youngsma, arrived at the premises.  At this time the other people present were Ms Abela, you, Mr Delphin, and Mr Gardiner.

4In the early hours of 19 July, Ms Abela drove all those present to an address in Tyabb in order to purchase marijuana.  During the car journey back to Langwarrin, you, Mr Ljuboja, accused Mr Gardiner of being a police informer and a dog, saying that he had previously informed against Ms Abela.  It appears that there is some confusion over this.  I was informed by you in court that it in fact related to some derogatory Facebook comments made by Mr Gardiner which had turned her family against her.  In any event, you began an argument with Mr Gardiner in broad terms relating to that subject.  You told Mr Delphin that Mr Gardiner had had a fight with Ms Abela some years ago in relation to this. 

5On the return back to the house at Langwarrin, you, Mr Ljuboja, and you,
Mr Delphin, began assaulting Mr Gardiner by punching him with closed fists.  The two of you asked Mr Gardiner to admit the actions he had taken against Ms Abela, but he refused to do so.  You, Mr Ljuboja, struck Mr Gardiner to the forehead, once with a yellow-handled hammer, and at some stage during the assault you, Mr Delphin, restrained Mr Gardiner by using cable ties to tie his hands behind his back.  Mr Gardiner, understandably, was in fear and felt unable to leave the premises.

6At about 7.30 that morning, you, Mr Ljuboja, removed the cable ties from
Mr Gardiner's wrists, and you, with Mr Delphin and Mr Gardiner, moved to the front yard of the house.  The two of you left Mr Gardiner and returned inside, at which time he ran from the front yard, trying to hide in a neighbouring property.  You, Mr Ljuboja, returned outside, found Mr Gardiner hiding and repeatedly punched and kicked him until a resident from a nearby house yelled at you to stop.  Mr Gardiner then knocked on the door a neighbouring property, asking the occupants to call police and an ambulance, police then attending at about 8.10 am.  They noted injuries to his face and hands.  Mr Gardiner was taken by ambulance to Frankston Hospital, where he received treatment for his injuries and was discharged later that day.

7On 24 July 2015, Mr Gardiner was examined by a clinical forensic medical registrar, Dr Caroline Bolt, who found he suffered the following injuries: hair missing to the centre of his forehead around the hairline, with mild bruising and redness around the hair follicles, purple bruising below the left eye and around the upper eyelid, haemorrhaging to the left eye, purple bruising below the right eye, linear wounds requiring two sutures over the back of the hand near the base of the thumb, measuring about five centimetres, three distinct bruises near each other on the back of the right forearm and a slightly patterned appearance measuring approximately 5.5 by three centimetres, six by four centimetres and four by three centimetres, a purple bruise to the right upper arm, a pink bruise over the back of the left elbow, linear abrasion over the left hip, purple bruising to the left lower leg, just below the knee, measuring about seven by five centimetres, and pink bruising to the inner aspect of the left ankle measuring approximately five by three centimetres.  It was Dr Bolt's opinion that the injuries would heal without serious consequence. 

8You, Mr Delphin, were arrested in Carrum Downs at about 8.10 and taken to the Frankston Police Station, where you participated in a record of interview, saying that you had been involved in a brief scuffle with a man over disparaging Facebook posts in relation to Ms Abela.  You were charged and remanded in custody.

9You, Mr Ljuboja, were arrested at your home later that morning and taken to Frankston Police Station, where in a record of interview you made admissions to assaulting Mr Gardiner by punching him to the head, ribs and causing him injuries, stating that you did so "because of something that had happened in the past."           You said you intended to take Mr Gardiner to hospital but that he ran away before you could do so.  You were charged and also remanded in custody.

10This matter was resolved at a further directions hearing in the County Court on 7 July 2016, and it is conceded by the Crown that there is some utilitarian value in the plea. 

11The maximum penalty for intentionally causing injury is ten years' imprisonment, and the maximum penalty for false imprisonment is ten years' imprisonment.

12I now turn to the personal circumstances of each of you, beginning with you, Mr Ljuboja.

13You are now 30 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 joined your parents.  During that time you underwent a series of traumatic experiences as a result of the war there, including seeing a six year old friend, who was Muslim, taken away and killed in front of you.  Your parents had settled in Perth and you joined them there, but did not settle yourself and ran away from home at the age of 13.  You lived with associates you had made, attending school and completing Year 10.

14Interestingly, whilst you formed some criminal associates, you went on to compile a fairly impressive work history.  You worked as a labourer essentially from about 2004, specifically as a brickies labourer between 2005 and 2010 for the same employer, a Tony Condello, in Perth.  You then worked in the produce section of IGA Supermarkets for about three years. 

15In 2011 you formed a relationship with a woman by whom you had a daughter.  She moved to Melbourne in 2013 and you followed her.  In the interim period, as a result, it would seem, from leaving home early and difficulties that you had had despite a fairly solid work history, you got into an amount of criminal trouble, essentially for matters of dishonesty, and were eventually gaoled for some months in 2013.  As a result of the criminal trouble you got into, your partner split with you and moved to Melbourne and, on your arrival here, when you followed her, you lived with her for a brief period of time but essentially the relationship remained one whereby you were separated, although you informed me that you had regular contact with your daughter. 

16You had, unsurprisingly, begun using drugs and alcohol in your early teens.  Alcohol, it appears, has been a problem for you for some years.  You also began using cannabis at an early age.  When your daughter was born, you made attempts to reduce your use of alcohol and marijuana and also amphetamine, which had been somewhat of a problem for you to that time.

17Once you arrived in Melbourne, you undertook labouring work for landscape gardener, Garden Studios, which work you held for about six months, that being your last period of employment. 

18You were dealt with in Melbourne for breach of an intervention order which had been taken out by a friend and his wife in relation apparently to a money dispute, you breaching this order, which you had consented to without admissions, by seeking to have money returned to you.  On 10 February 2016 you were dealt with for unlawful assault and breach of the intervention order.  By this time you had already been taken into custody in relation to the matters which have brought you before this court and were sentenced to 90 days' imprisonment.

19When you came to Melbourne, you lived in Frankston, sharing a flat with a friend, but the relationship with your daughter's mother has broken down since you have been in custody.  She has a new partner.  She has not visited you whilst you have been in prison, and apart from some telephone contact, you have had virtually nothing to do with her and you have not been able to see your daughter, which I accept has been a matter of some concern to you.

20At the time of this offending you had relapsed into both alcohol and drug abuse.  In the aftermath of the breakdown of the relationship with your daughter's mother, you had resumed, not just amphetamine, but ice use, and had had about a gram of methamphetamine in the day prior to this offending.

21There was apparently bad blood with Mr Gardiner, the victim, regarding the perceived ongoing argument in relation to Ms Abela.  You had known him for about a year through mutual friends.  You had known Ms Abela, although not well, for about a year prior to this offending. 

22Whilst in gaol, you have spent your time fairly usefully.  You have worked in the kitchens, you have worked as a billet, which is a position of trust, and you have been seeking to undertake factory work in the gaol, having been moved whilst held in custody. 

23Sorry to trouble you, Ms Holmes, but I don't seem to have the prior convictions, the criminal history - you've got them?  Thank you. 

24I now turn to you, Darren Delphin. 

25You are now 45 years of age.  According to your counsel, you had a reasonably happy childhood.  Your father was an interstate truck driver.  It appears you had some learning disabilities at school.  You were subjected to some remedial classes and at Year 8 level you simply decided to leave school.  You then worked for three years as a horse strapper but, in 1989, were sentenced to four months in a youth training centre for charges of burglary and theft.  Whilst there, you undertook a preliminary apprenticeship, which was of some use to you, although you appeared not to have used it on any sort of permanent basis in the later years of your employment, but you were also sexually assaulted whilst in custody and have recently participated in a coronial inquest into sexual offending in youth training centres at the time.

26On your release from custody, you continued working on and off as a strapper, returning home to live, but forming a relationship and having your first child at the age of 17 to 18.  You remained in that relationship until 2011 in the process of which six children were born. 

27You have a reasonable work history.  You have worked on and off for 27 years for the same employer as a demolition labourer.  Your counsel informed me that you believe you will be able to obtain employment with that company on your release from prison.

28You, too, developed drug and alcohol problems early in your life, engaging in use of marijuana and alcohol in your early to late teens.  Along the way, in your earlier years, that is, between 1989 and 2000, you were constantly before the courts on minor matters essentially involving possession and use of cannabis, cultivation of cannabis, unlicensed driving, some assault matters including recklessly causing injury and some dishonesty including burglary and also firearm offences.  However, you did not appear before any court between 2000 and 2013.

29Your relationship with your partner broke down in 2011 and at that time you, yourself fell back into drug and alcohol use, and relations with your partner, it appears, very much soured.  Ultimately, in 2013 you were placed on a community corrections order for charges including contravention of a family violence order, making threat to kill, threaten to inflict serious injury, unlawful assault, recklessly causing injury and driving offences.

30I was informed by your counsel that the violence offences essentially were directed towards the new partner that the mother of your children had taken up with, and some nasty verbal offending against her. 

31In 2014 you were placed on a further community corrections order for firearm offences which you have informed me involved the possession of imitation weapons and some ammunition discovered at your home which you had essentially collected in the course of your work as a demolition labourer, simply for curio value, as far as I understand it. 

32Both of you, it is accepted, played different roles in the assault and false imprisonment of Mr Gardiner.  In particular, it appears you, Mr Delphin, were urged by your co-accused to involve yourself in the offending, and it appears that the role you played was a more limited one and it ceased on Mr Gardiner's release the next morning.

33I received a psycho neurological report in relation to you, Mr Delphin, which really did not reveal anything of particular interest beyond that you do not suffer from any head injuries and that you essentially present with borderline intellectual ability.  Given that you have managed to work for many years and support a family of six children, I do not accept that that intellectual incapacity has so affected your capacity to deal with life, that your service of imprisonment is more difficult for you than other prisoners. 

34Can you just let me know, what's the pre-sentence detention, please?

35MS HOLMES:  For Mr Delphin it's 437 days, Your Honour.

36HER HONOUR:  Pardon?

37MS HOLMES:  Four hundred and thirty-seven.

38HER HONOUR:  Yes.

39MS HOLMES:  And 347 for the co-accused.

40HER HONOUR:  Yes.  You, Mr Delphin, have served 437 days in detention.  Whilst, on the face of it, this offending is serious, I do accept that it was spontaneous, unpremeditated and that you played a minor role in it.  It has been submitted, and I accept, that the time you have served sufficiently covers and expresses the severity of this offending, and it is my intention to sentence you to the time you have already served.  I note that when you leave prison, it is your intention to again live with Ms Abela, although I also note that your descent into drug and alcohol use, in particular, and methamphetamine use occurred at the time that you had taken up with Ms Abela, which was about two weeks before this offending. 

41It is also your desire to present yourself to the Department of Human Services as an appropriate carer for your three youngest children, who have now been placed in foster care due to difficulties that their mother has in caring for them.  In any event, I intend now to sentence you as follows.

42Could you stand up, please.  

43I am going to sentence you to an aggregate term, both charges arising, in my view, from the same incident.  In relation to the charges of intentionally causing injury and false imprisonment, I am going to sentence you to a term of 437 days, which term I declare to have already been served by way of pre-sentence detention. 

44Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of two years' imprisonment.

45Mr Ljuboja, I have had you assessed for suitability to be placed on a community corrections order and you have been found suitable.

46You can be seated, please, Mr Delphin.

47OFFENDER DELPHIN:  Thank you, Your Honour.

48HER HONOUR:  I intend sentencing you to the time that you have already served of imprisonment upon you being released onto a community corrections order for a period of 12 months.  I cannot do this without your consent and so I need to outline to you the conditions which attach to such an order. 

49They are: You must report to the Community Corrections Office within two working days of being placed on this order.  That is by Tuesday of next week.  Whilst on the order, you must not commit any other offence punishable by imprisonment.  You must report to and receive visits from the Community Corrections Office.  You must inform the Community Corrections Office of any change of address or employment within 48 hours of that change.  You may not leave Victoria without the permission of the Community Corrections Office.  You must not attend upon the Community Corrections Office whilst under the influence of either drugs or alcohol. 

50I am going to order that you undertake 150 hours of unpaid community work.  You are to attend for assessment and treatment for drug use and alcohol use, and you are to attend for assessment and treatment for mental health difficulties.

51Are you prepared to enter this order?

52OFFENDER LJUBOJA:  Yes, Your Honour.

53HER HONOUR:  Have a seat and we will organise ‑ ‑ ‑

54OFFENDER LJUBOJA:  Thank you, Your Honour.

55HER HONOUR:  That's all right - the paperwork.  I note that neither disposition is resisted by the prosecution in this matter.  Now you also need me, I think, to sign, is that right, disposal orders?

56MS HOLMES:  Yes, Your Honour.  Your Honour, just in relation to Mr Ljuboja, 6AAA in relation ‑ ‑ ‑

57HER HONOUR:  Yes.  No, I'll do that in a moment.  Sorry.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to an aggregate term of two years and six months and ordered that you serve an 18 month minimum.  Thank you.  I will hand you the disposal order.  Thank you.  We will get you to sign that, Mr Ljuboja.

58(Community Corrections Order signed and acknowledged.)

59Yes, thank you.  So, in relation to you, Mr Ljuboja, I sentence you on an aggregate basis to 347 days' imprisonment, which period of time I declare has already been served by way of pre-sentence detention, with your release then onto the community corrections order in the terms that I have explained it. 

60Yes, thank you.  All right.  The two gentlemen can be taken downstairs, please.  I just want to speak to counsel.

61OFFENDERS:  Thank you, Your Honour.

62HER HONOUR:  Thank you.  You are excused, gentlemen, thank you.  Thank you. 

63I just wish to state to both counsel, neither of you was in any way remotely adequately prepared for this plea.  This is a County Court.  You are expected to have - the details of questions that I asked of each of you were fundamental, and I would expect any counsel appearing in any County Court plea to have taken instructions in those matters, and I am simply saying this advisedly.  Do not appear in this unprepared state again in such a matter. 

64Thank you very much.

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