Director of Public Prosecutions v Lukic

[2016] VCC 359

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-02179
CR 15-02180

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEFANI LUKIC

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2016
CASE MAY BE CITED AS:	DPP v Lukic
MEDIUM NEUTRAL CITATION:	[2016] VCC 359

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	Mr D. O'Doherty
For the Offender	Mr R.W. Backwell

HIS HONOUR: 

1Stefani Lukic, you can stay seated for the time being.  You pleaded guilty to indictment charging you with dishonestly handling stolen goods, with two offences of kidnapping, causing injury intentionally, two offences of theft, and you have pleaded guilty to summary offences, committing an indictable offence whilst on bail, namely, kidnapping; possessing a controlled weapon and possessing cartridge ammunition.

2You have admitted a number of prior court appearances and convictions.  Those are shown on the criminal record that has been provided by the prosecution. It is conceded that some of those court appearances which were identified by your counsel during the course of the plea hearing, are not admitted. The prosecution has not sought to prove those matters.

3The last of your court appearances was on 1 August of 2013 when you received a three month suspended sentence for recklessly causing injury.  That suspended sentence was operational for a period of 12 months and I am told you negotiated that 12 month period without breaching the suspended sentence.

4The prosecution has tendered, as Exhibit A, a summary of prosecution opening that was read this morning.  I will not go through it in detail.  It is sufficient, I think, to indicate that the relevant events occurred on the afternoon of 5 August of last year when you were made aware of the discovery of some notes which were apparently written about your activities, and the content of which you understood had been penned by one of your victims, Nicole Nelson.  You attended an address where you expected to find her and she was not there; she turned up at the address with the other of your victims, Mr Svajcer.  You then returned to that address with another female.

5You were armed, both of you apparently, with knives.  You threatened
Ms Nelson.  She was ushered into the rear of the car that had been used to take her to the address by Mr Svajcer, and both Ms Nelson and Mr Svajcer, were the subject of threats with a knife, by your co-offender.  Your two victims were then forced to drive to an address at Kanooka Drive, Corio, and were forced to enter that address.

6You, your female co-offender, and another male who attended the address during the course of the evening, assaulted Ms Nelson over a period of hours, and
Mr Svajcer's wallet was stolen during the course of that process.

7At the conclusion of the assaults upon Ms Nelson, both Ms Nelson and
Mr Svajcer were taken from the address.  Both of them had their eyes and mouths taped over before leaving the address.  Mr Svajcer was dumped near his home address, later on that evening, and Ms Nelson was driven to the Lovely Banks area where she was taken from the vehicle, further assaulted, and left at that location.

8She was taken to hospital by ambulance.  She sustained a number of injuries, including a broken nose, extensive bruising to the left eye causing closure of the eyelid and reduced sensation of the left cheek; a three centimetre laceration of the left side of the head; two centimetre laceration to the bridge of the nose on the left side.  A one centimetre laceration of the right cheek.  Bruising to the upper left arm.  Left posterior rib bruising and multiple linear red bruises to the outer thigh.

9Sutures were required to close all three wounds, as well as some skin glue to the laceration to the left side of the head.

10Mr Svajcer's vehicle was recovered in East Geelong near his home address the following day.  Two knives were located within the vehicle.  Police then attended at the address in Kanooka Drive, Corio, and located an ANZ credit card belonging to Nelson, and a tool box and assorted tools which had been taken from Mr Svajcer's car.  Mr Svajcer's wallet was later located in your handbag at an address in Norlane.

11The offence of dishonestly handling stolen goods carries a maximum term of imprisonment of 15 years.  Kidnapping carries a maximum term of imprisonment of 25 years.  Intentionally causing injury; the maximum term of imprisonment is ten years.  Theft, carries a maximum term of imprisonment of ten years.  Committing an indictable offence whilst on bail, carries a maximum term of imprisonment of three months.  Possessing a controlled weapon, a maximum term of imprisonment for one year; and possessing cartridge ammunition, a maximum penalty of 40 penalty units.

12Each of Ms Nelson and Mr Svajcer provided victim impact statements.  Ms Nelson's was read to the court.  Both of those statements indicate that your offending conduct had a profound effect on each of your victims and, no doubt, has had an ongoing emotional effect upon them as well as the physical injuries to Ms Nelson.  I am bound to take into account those victim impact statements.

13The offending conduct was serious.  Kidnapping is a very serious offence.  The assault upon Ms Nelson was sustained.  It was vicious.  It was unjustified and it caused quite severe injuries, falling short, fortunately for you, of serious injuries, because if you have been convicted of the offence of intentionally causing serious injury, that would have carried a much heavier term of imprisonment.

14So this is offending conduct which, undoubtedly, should attract a significant term of imprisonment.

15Turning to matters personal to you.  Your counsel provided me with a report from Dr Walton, a psychiatrist.  Dr Walton is well known to this court and is a man of very considerable experience as a psychiatrist.

16The report catalogues a difficult upbringing; an early or teenage period during which you were living in an unsettled way.  You left home at the age of 14.  You have been engaging in drug abuse, at least since the age of 15, and have essentially been addicted to methylamphetamine since that age.

17You are 21 now, and you have had a number of court appearances during the intervening period.  You had very little in the way of education.  You have, undoubtedly, suffered a number of psychiatric and psychological conditions, and Dr Walton identifies also a personality disorder.

18These are difficult enough issues to cope with, without a drug habit.  It seems you have had very little in the way of formal medication or treatment for any of these conditions, and have had essentially to do your best to survive in the intervening period.

19Dr Walton puts the proposition that Verdins principles apply.  He says in paragraph 6, that your misconduct very much represents your emotional turmoil, rather than more conventional criminal motivation. 

20Mr O'Doherty, on the part of the prosecution rightly pointed out that the context in which your offending occurred, undoubtedly involved your use of your voluntary ingestion of methylamphetamine, so it is difficult to establish that Verdins principles apply, so as to reduce your moral culpability.

21However, I have to say that looking at Mr Walton's report as a whole, and having regard to the fact that you became essentially homeless; left home at the age of 14 and have been abusing drugs in a significant way ever since, at a time when you were already suffering from a number of psychological and mental impairments, leads me to conclude that moral culpability and the need to impose a sentence that involves general deterrence, in particular, should be modified in a sensible way.  I propose, therefore, to apply the Verdins principles.

22It is undoubtedly the case that it will be harder for you to do your time in prison and, it seems to me, highly probable that the prison environment will not be good for your mental health although, perhaps, that is in some doubt in that you at least are receiving some treatment now and you are on medication which seems to have had some beneficial effect upon you.

23Perhaps, the most significant beneficial effect is that you have not been taking drugs.  You have not been on methamphetamine and that you are now perhaps for the first time for many years, seeing life in a very different light.

24You have family support.  Your mother described herself as being heartbroken that when she heard that you had been involved in offending conduct of this seriousness and she offers you a home and support.

25All that is a positive sign and it offers you some real hope for the future.

26I have to consider your rehabilitation, particularly because you are still a young person and it is very important for the courts to do their best to rehabilitate young people, and to provide a basis for treatment and opportunity to build on the rehabilitation that you have already started.

27I have got to balance that need against the need to punish you, the need to denounce your conduct, the need to send a message to other people that offending conduct of this kind is not to be tolerated, and to deter you also from committing offences of this kind in the future. So there is a balancing exercise which is not a particularly easy one. 

28Mr Backwell, on your behalf, has urged me to impose a sentence of imprisonment because that is inevitable for offences as serious as this, but to impose a sentence which would allow me also to make a community correction order which would assist your rehabilitation.

29Mr O'Doherty, on the other hand, has submitted on behalf of the prosecution that the offending conduct is so serious that it takes it out of the range of sentences that would enable me to impose a community correction order.

30Both submissions have a degree of attraction.  However, it seems to me that in all the circumstances, rehabilitation is a particularly important matter in your case.

31I think the community ultimately is going to be best protected if efforts are made now to help you.  I will tell you exactly what I have in mind and you can tell me whether you think that you are prepared to consent.

32You have been assessed as suitable and you have indicated a willingness to participate in a community correction order in the kind of terms that I have discussed with your counsel, but I do propose to impose a term of imprisonment which will add to the term you have already done.

33I propose to make a total effective sentence of 20 months' imprisonment.  That will mean that you have to do another 14 months until you get that order.

34Then, on top of that, you will be required to be on a community correction order for the period of two years.  There will be supervision.  There will be a requirement that you be assessed for, and participate in, rehabilitation programs to address drug abuse.  Your medical problems, your mental health problems, and programs to reduce your risk of re-offending obviously including violence.

35It will not be easy for you to complete that order.  You will be required during that two year period to turn up for appointments when you are required to do so and to participate, in a meaningful way, in the rehabilitation programs. 

36If you fail to comply with the terms, you will be up for three months' imprisonment, just for failing to comply with the order.

37If you fail to comply with the order by committing further offences punishable by imprisonment, well, you would be up for punishment for those offences, clearly, plus the breach of the order, plus you would be brought back here to be re-sentenced for these matters.  Do you understand all that?

38OFFENDER:  Yes, I do.

39HIS HONOUR:  So, are you prepared to consent to a community correction order in the terms that I have outlined?

40OFFENDER:  Yes, I am.

41HIS HONOUR:  Yes, all right.  In those circumstances, I am ready to pass sentence upon you.  Please stand.

42On Charge 1 of dishonestly handle stolen goods, I convict you and sentence you to imprisonment for a period of three months'.

43On Charge 2 of kidnapping, I convict you and sentence you to imprisonment for a period of 16 months'.

44On Charge 3 of kidnapping, I convict you and sentence you to imprisonment for a period of 16 months'.

45On Charge 4 of intentionally causing injury, I convict you and sentence you to imprisonment for a period of 14 months'.

46On Charge 5 of theft, I convict you and sentence you to imprisonment for a period of three months'.

47On Charge 6 of theft, I convict you and sentence you to imprisonment for a period of one month.

48On the summary offence, or breaching your bail, I convict you and sentence you to imprisonment for a period of one month.

49For possessing a controlled weapon, I convict you and sentence you to imprisonment for a period of two months'.

50For possessing cartridge ammunition, I convict you and discharge you.

51The sentence on Charge 2 will be the base sentence and I order that four months' of the sentence on Charge 4, be served cumulatively upon the sentence on Charge 2, making a total effective sentence of 20 months' imprisonment.

52I declare pre-sentence detention of 189 days as time to be reckoned as served on the sentence that I have imposed, and deducted administratively from the time you will actually have to serve, and I order that that matter be noted in the records of the court.

53In addition, I order that you be placed on a community correction order for a period of two years' which will commence at the conclusion of the sentence that I have imposed, and will involve, in addition to the core conditions, the following conditions that you be subject to the supervision of the Department of Corrections for a period of two years'; that you be assessed for, and participate in, such rehabilitation programs for drug abuse, medical issues, mental health issues and programs to reduce re-offending, as are indicated, and as you are required to participate in by the Department of Corrections.

54I make the disposal order in the terms of the draft which I have been supplied and I declare that had it not been for your pleas of guilty, I would have sentenced you to imprisonment for a period of three years' and four months', with a non-parole period of two years' and three months'.

55Are there any other orders I need make?

56MR O'DOHERTY:  No, Your Honour.

57HIS HONOUR:  Take a seat for a moment whilst the community correction order is drawn up please.

58I have signed those disposal orders, Mr O'Doherty.

59MR O'DOHERTY:  Thank you.

60HIS HONOUR:  I will just leave the Bench for a few minutes whilst that order is being drawn up.

61(Short adjournment.)

62HIS HONOUR:  Yes, the order is now ready.  Mr Backwell, would you mind accompanying my associate to ensure that your client knows what she is signing?

63MR BACKWELL:  Yes, sir.

64HIS HONOUR:  Yes, I will leave the Bench, that order is now signed.

65MR BACKWELL:  Thank you, sir.

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