Director of Public Prosecutions v Marijancevic

[2024] VCC 287

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-01977

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIAL MARIJANCEVIC

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2024
DATE OF SENTENCE:	29 February 2024
CASE MAY BE CITED AS:	DPP v Marijancevic
MEDIUM NEUTRAL CITATION:	[2024] VCC 287

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Plea of guilty – burglary – common law assault – delay – prospects of rehabilitation – combination sentence

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Cockerell [2001] VSCA 239; DPP v Merryfull [2023] VSCA 244; DPP v Bloomfield [2023] VSCA 244, Boulton v The Queen [2014] VSCA 342

Sentence:                  63 days imprisonment, combined with a 14 month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Emma Turnbull Lawyers

HER HONOUR:

1Danial Marijancevic, you have pleaded guilty to one charge of burglary and one charge of common law assault. 

Circumstances of offending

2The circumstances of your offending are outlined in the summary of prosecution opening dated 29 February 2024. 

3In brief summary, at the time of the offending you were 39 years of age.  The victim, Amanda Quon, was the same age and known to you and had been for years.  She lived at Kendale Street, Airport West, with her 17 year old daughter and 15 year old son.

4On Sunday 19 July 2020, before Ms Quon went to bed, a window in her kitchen/lounge area had been left slightly ajar. 

5At 7:20 pm, motion-activated CCTV at the front of Ms Quon’s property captured a male wearing gloves with a hooded jumper covering his head jumping over the fence and ending up in the front yard. Between 8:00 and 8:20 pm, you forced open the slightly ajar window and gained access to her home.

6Ms Quon was in her bedroom, in bed with the TV on, and her bedroom door was half open.  You appeared in the bedroom doorway and said to her, 'Don’t fucking scream', and further, 'Don't talk, you want to treat me like a goose.'

7Ms Quon recognised your voice.  You then jumped on her bed and struck her to the head, then the left side of her face, then her left ear.  She screamed, 'What the fuck are you doing, Danial?'  And you repeated, 'Do you want to treat me like a goose?'.  You and Ms Quon then argued about money.  

8You then exited her bedroom and left her house.

9Ms Quon's daughter could hear some of the exchange in the bedroom and also recognised your voice. 

10After you left Ms Quon called Triple 0 at approximately 8:25 pm and reported the incident to police.  An investigation then ensued as outlined in the prosecution opening.

11Ms Quon's initial statement to police was limited due to her vomiting and requiring medical attention.  She was transported by ambulance to Sunshine Hospital.  Shortly after her arrival there she became anxious and checked herself out and did not ultimately receive any medical treatment. 

12On 24 July 2020 you were arrested and charged.

Gravity of the offending

13Mr Marijancevic, the offences you have pleaded guilty to are inherently serious, as indicated by the applicable maximum terms.

14Taking into account all relevant factors, I consider that this is a relatively serious example of a burglary and common law assault.

15On 19 July 2020 at around 8:00 pm, you entered the home occupied by Ms Quon and her children, a place where they were entitled to safety and security.  As to whether you removed the flyscreen in the course of gaining entrance, as discussed at the sentence indication hearing, I do not consider this to be of significant consequence and neither counsel pressed me to make a finding.

16It is an accepted fact that you gained entry by forcing open the slightly ajar kitchen/lounge area window.  You then entered Ms Quon's bedroom, jumped on her bed and struck her to the head three times, as outlined in the prosecution opening.

17While the assault was not witnessed by her children, her 17 year old daughter could hear her mother screaming 'Stop', along with loud banging.

18Your offending was clearly unacceptable and confrontational and there has been nothing advanced to mitigate your culpability.

19I do accept your counsel's submission that your offending was of relatively short duration and that it lacks a number of aggravating features, including the use of a weapon, the infliction of more serious injuries beyond what is depicted in the available photographs, and offending, for example, in company.

20For completeness, I note that there are no victim impact statements.

Plea of guilty

21Your matter, Mr Marijancevic, resolved on the first day of the trial and therefore cannot be regarded as an early plea. In all the circumstances however your plea does entitle you to an important sentencing discount.  You have entered a plea of guilty to negotiated charges that are less serious to those in the trial indictment.  Your plea of guilty I accept has utilitarian value and has saved court time. You have also spared Ms Quon and her daughter the trauma of giving evidence again in a trial.

22I accept that your plea of guilty in resolution of this matter does indicate some maturation or reflection on your part and your willingness to accept responsibility and facilitate the course of justice.

Personal circumstances

23Your counsel outlined your personal circumstances both before me today and also in writing.

24You are one of six children, though you have suffered the grief of losing three of your siblings at different stages in your life.  Your mother is currently aged 76, lives in Braybrook and is wheelchair bound.  You have regular contact with her and she visits her grandchildren.  You mother is cared for by your father.

25You were raised and schooled in the western suburbs before you moved to Queensland for a short period of time.  You attended Footscray City Secondary College and left in Year 11.

26Your father spent a significant period of his life in custody and is now being treated for serious health issues.  I infer from this, Mr Marijancevic, that you have suffered a degree of instability growing up.

27You moved out of home at around the age of 18/19 to live with a girlfriend.  You secured work as a steam cleaner and then at a blacksmith.  You were unemployed for most of your 20s.  You ended up gambling a lot at the casino, never winning, but becoming addicted.  You have no history of psychiatric or psychological treatment or illness and your counsel submits that you do not present with any drug or alcohol issues.

28In 2004 you were charged, along with other family members, for firearm, armed robbery and other offences.  This proceeded to trial and you were convicted.  On 22 June 2009 the Supreme Court quashed the convictions and sentenced you to 123 days after you had served some 932 days in pre-sentence detention.

29You do have a relevant and extensive prior criminal history. 

30Subsequent to the Supreme Court hearing on 4 December 2009 you were sentenced for a number of commercial burglaries and thefts to a total effective period of three years' imprisonment with a non-parole period of one year and two months.

31On 4 August 2010 parole was granted.  In the context of re-offending your parole was cancelled on 6 June 2011 and you were soon later remanded in respect of the new matters.

32On 13 September 2012 you were sentenced for this offending, that is on a charge of intentionally cause serious injury, to a total effective period of six years with a non-parole period of four.  You served the entire sentence which ended on 25 November 2018.

Other factors in mitigation

33Your counsel, Mr Desmond, relied upon a number of factors in mitigation on your behalf.  He submits that the delay in your case is a significant mitigating factor.  You were originally arrested and interviewed, as I have already noted, on 24 July 2020.  You were granted bail on 24 September 2020 and have remained on bail since this date.  Your bail conditions for this period of time have included a residential condition, a condition that you were permitted to leave the State for work purposes only and weekly reporting.

34It is well established that the justification for taking delay into account as a mitigatory factor rests upon the twin considerations of rehabilitation and fairness[1]. 

[1] R v Cockerell [2001] VSCA 239; DPP v Merryfull [2023] VSCA 244; DPP v Bloomfield [2023] VSCA 244.

35First and foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process.  Rather it should be tailored to ensure as much as possible that an offender has the opportunity to complete the process.

36Second, from the point of view of fairness to an offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping them in a state of suspense as to what will happen.

37In your case, Mr Marijancevic, I accept that both limbs are engaged and I accept that delay is a matter of real significance.  I take into account that you have had the matter hanging over your head for a lengthy period of time with the outcome unknown and uncertain.  I also accept that within this lengthy period of time you have demonstrated a commitment to your rehabilitation. You have secured and maintained full-time employment and it appears that you have dedicated yourself to your young family.

38I also take into account that the 63 days you spent on remand was during the beginning of COVID.  You spent almost all of the two months effectively locked down, and I accept and take into account that your conditions in custody were more restrictive and onerous.

Prospects of rehabilitation

39As for your prospects of rehabilitation, this needs to be approached cautiously given your lengthy and serious criminal history and also the nature of the offending.  However, in all the circumstances I accept that over the last several years you have shown positive progress, an advancement which is cause for some optimism, and I agree with your counsel, is promising.

40In arriving at this conclusion, I rely on a range of factors, including your positive compliance with bail over a substantial period of time. Also, as your counsel submits, your most recent prior matter relates to your 2012 sentence that I have already referred to.

41Further, I have taken into account that over the last four years or so you have been in full-time employment.  Your employer describes you as demonstrating 'Great dedication', proving yourself to be reliable and honest.  You have stepped into the role of business manager, taking full responsibility for the daily running and operation of the company[2].

[2] Exhibit 1.

42Also, you have been in a relationship with your partner, Jessica Dickson, for several years and have known each other for a very long time.  You have four year old twins together, and as confirmed by the medical material, she is currently pregnant with your third child with the estimated date of birth being 14 April of this year[3].  She has struggled with a variety of physical health issues relating to the pregnancy, including a low-lying placenta and Graves' disease.  She has been diagnosed with severe depression and anxiety also.  Doctor Ventuka Musak refers to the significant support that you can provide her with looking after your children.

[3] Exhibit 2.

43Mr Desmond described you as a dedicated and hands-on father.  Your 'life currently amounts to work, go home, look after kids, get up, look after kids.'  You have negotiated your work hours so as to drop off and pick up the children at their daycare centre four days a week.

Sentencing purposes

44The purpose for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community, and clearly in a case like this denunciation and general deterrence are important considerations.

45I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant in your case.  I also take into account the principle of totality, noting that while each charge on the indictment represents separate offending, I need to ensure that the overall sentence is a just and appropriate one for your overall offending.

46Further, I have taken into account the general sentencing landscape for such offending and relevant cases, noting, however, that each case is unique.  Also, I have taken into account the applicable maximum sentences.

47Your counsel's principal submission was that a term of imprisonment not exceeding the period that you have already served on remand, is the just and appropriate sentence.

48In the alternative, submissions were made in support of a combination sentence.  The prosecution accepts that it is open to the court to impose a combination sentence, that is a term of imprisonment combined with the community corrections order.  However, Mr Devlin did not concede that the term you have already served on remand was sufficient to satisfy the custodial component of such an order.

49At the indication hearing, I stated that if you were to plead guilty to the charges, this court would likely impose a combination sentence with the custodial component not exceeding the time that you have already served.

50I had you assessed, Mr Marijancevic, for a CCO and you were assessed as unsuitable.  While it was noted that your last community-based disposition was in 2010 and you stated that you have now changed your life, the author assessed you as not being suitable for an order.  It was concerning that you had expressed hesitancy in completing a CCO with treatment conditions to address your offending behaviour and were not able to advise how a further CCO would assist you.  This may suggest, according to the author, that you are not treatment ready and that a further CCO could be setting you up to fail.

51After careful consideration and further reflection and taking into account all of the relevant material before me, both at the plea and as advanced at the sentence indication hearing, I propose to sentence you to the time that you have already served, combined with a CCO. I consider that the objective gravity of the offending, reflected also against your prior criminal history, requires a term of imprisonment.  I consider that a CCO, in conjunction with this term of imprisonment, is capable of satisfying the requirements of just punishment.

52As the Court of Appeal in Boulton[4] stated:

'The availability of the combination sentence options adds to the flexibility of the CCO regime.  It means that even in cases of objectively grave criminal conduct the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment, coupled with the CCO of lengthy duration, with conditions tailoured to the offender's circumstances and the causes of the offending.'

[4] Boulton v The Queen [2014] VSCA 342.

53In your case I have concluded that the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing can be sufficiently achieved by a short term of imprisonment, coupled with an order.

54The CCO component will operate punitively for every day of its duration while fostering your ongoing rehabilitation, which I consider in the long term best serves and protects the community. The sentence also reflects the principles of parsimony and proportionality, along with the important mitigating factors advanced on your behalf, in particular your plea of guilty and the substantial delay in this matter.

55While the concerns of Corrections are readily understandable, and as submitted by the prosecutor, your attitude somewhat disappointing, as I have already stated, I consider that in recent times, Mr Marijancevic, you have demonstrated considerable change and stability in your circumstances.  Should there be a problem of non-compliance there will be ample capacity for the terms of any such order to be re-visited, including in breach proceedings, which would carry with it the prospect of re-sentencing.

56Mr Marijancevic, could you please stand.

Sentence

57Synthesising all relevant factors, you are convicted and sentenced as follows:

58

Charge 1, 63 days' imprisonment plus a community corrections order of

14 months.

59

Charge 2, 63 days' imprisonment plus a community corrections order of

14 months.

60Both terms of imprisonment will operate concurrently and I will declare them as having been served pursuant to s18 of the Sentencing Act.

61The community corrections order pursuant to s40 of the Sentencing Act will be the one order.

In terms of conditions, I consider the following conditions to be appropriate on the material that I have received and also based on your history, and the nature of this offending.  So taking into account all of those matters, I am imposing the following conditions: supervision; community work, and I am requiring you to undertake within that 14 month period, 250 hours of work.  I will offset 50 hours against any rehabilitative programs that you engage in.  So the last extra condition of your order is that you engage in programs as directed.  Do you understand?

OFFENDER:  Yeah.

HER HONOUR:  All right.  There are core conditions that apply to every community corrections order and you would probably know this having been on some in the past, so you have to accept visits from Corrections; you need to advise them of certain things.  You are aware that you need to comply with the order.  It starts today.  The way in which you can breach it, Mr Marijancevic, is either you do not comply with the condition, or you commit an offence punishable by imprisonment within its duration, okay.  And if you do breach you come back before the court, I can deal with you for the breach and it reopens up these matters.  Do you understand?  Okay, all right.  You can take a seat now.

A document is going to be printed out and either your solicitor or counsel can approach you in a moment so you can go through with it, to make sure that you understand it and that you consent to it, all right.

Pursuant to s6AAA can I indicate that on the charges before me, if you had not pleaded guilty on these resolved charges I can indicate, Mr Marijancevic, that I would have returned you to prison, I would have had you serve a period of around nine months' imprisonment with a community corrections order, all right.  So that is an indication for you that by resolving the matters, accepting responsibility, dealing with it as you have, you have saved yourself a return to custody effectively, all right.  Thank you.

Can we have copies for both counsel please, and we will give this to Mr Desmond and perhaps he and/or his instructor can approach Mr Marijancevic.

MR DESMOND:  Thank you, Your Honour.  It's two working days to attend the Corrections?

HER HONOUR:  It is, yes, that's right.

MR DESMOND:  I thought I saw a specific date or time in the assessment report?

HER HONOUR:  Did they, is there a specific time?

MR DEVLIN:  They refer to 2 pm.

HER HONOUR:  Did they?

MR DESMOND:  They said, if Your Honour still grants the order or makes the order, then the appointment would be - - -

HER HONOUR:  I see.  Let me just check that report.  It might be then that there's an appointment that's already been - here we go.

MR DEVLIN:  On p2, Your Honour.  At 2 pm, Werribee.

MR DESMOND:  2 pm.

HER HONOUR:  I see, yes.

MR DESMOND:  Within two working days.

HER HONOUR:  Should a community corrections order be imposed required to attend in person at 2 pm by - - -

MR DESMOND:  Before 2 pm - - -

HER HONOUR:  There is no appointment - 2 pm - - -

MR DESMOND:  Before 2 pm.

HER HONOUR:  Before 2 pm within two working days.

MR DESMOND:  They must be flat out in the afternoons.

HER HONOUR:  Mr Marijancevic, what that means - I am not quite sure why that time is provided but within two working days, you need to attend that Corrections.  It seems that it is suggested that it be before 2 pm.  You are probably better off going then there so that you are not turned away in any way, but it's two days, all right.  So you can speak to your solicitor no doubt who will well advise you.  You can take a seat.

The last thing, counsel, is I have got these forfeiture orders.  There is a disposal order and two forfeiture orders, have you seen those?

MR DESMOND:  I have, Your Honour.  Look I mean we're not party - this is in relation to items seized which led to all those summary charges which were withdrawn.  Whatever the occupier or house owner would want to say or not, I don't know, but it's got nothing to do with us because there are no charges against us in relation to those matters.  So whether that means Your Honour should make orders in relation to charges that are withdrawn, the summary charges?

HER HONOUR:  Well some of the items on the forfeiture order include the cartridge ammunition.

MR DESMOND:  I understand that.  It's nothing to do with me.  If Your Honour says that you can make an order, then Your Honour no doubt will make the order but I can understand the concern, but whether somebody wants to exercise rights in relation to a motorcycle or cash, I don't know, that's a matter for them.  It's got nothing to do with us.

HER HONOUR:  All right.  So on these orders then, disposal order three registration plates, black Taser, Taser in black case, Victoria Police documents.  Forfeiture order the cartridge ammunition, cartridge ammunition.  Forfeiture order $6,000 cash.  So these arise from the search of the address which the Crown,

Mr Devlin, assert is?

MR DEVLIN:  27 May Gibbs.

HER HONOUR:  Yes.

MR DEVLIN:  Now in relation to that, the position of the defence as I understand it is that look 'I wasn't in possession of those items', so they're not his.

HER HONOUR:  Yes, yes.  'It wasn't my residence and I wasn't in possession'.

MR DEVLIN:  That's right, now so the orders are designed hopefully to end this matter and it ends his involvement.  If somebody else wants to come forward and lodge an interplea, well they can tell the court what bits they want and also possibly explain why they were in possession of other items, but that's something the matter that doesn't concern the accused.

HER HONOUR:  There are some matters that are just quite obvious to me, but the cash isn't, I must say.  Like what does that relate to?

MR DEVLIN:  It's a bundle of cash was found hidden in a - well in a bottom of a cabinet in the kitchen.  It was just against the back of the cabinet.  So I'll withdraw the word 'hidden'.

MR DESMOND:  Some people don't like banks.

MR DEVLIN:  Well if somebody wants to come forward and make a claim in relation to that, they'll be able to do this.  These orders don't kick in for 28 days.

HER HONOUR:  No, but like I said, the ammunition and those things are very plain to me, but I just, when there's no charge and no agreement, I am just curious about the proper basis upon which I am called upon to make such an order in respect of an item that is not just quite obviously something that ought to be forfeited or disposed.

MR DEVLIN:  Yes.  Obviously the stolen motorbike and the ammunition and - - -

HER HONOUR:  I think that's plain.  I don't have a difficulty with that.

MR DEVLIN:  But if - what I am attempting to do is that the police need orders to dispose of these matters at a point in time.  In relation to this accused, his position is 'not mine, not interested in it' - - -

HER HONOUR:  Yes.

MR DEVLIN:  - - - and the only reason the police are in possession of it is because of the charges laid against him.  If somebody wants to come, and I daresay people will talk and make a - as I said lodge an interpleader and they can approach the court, or they can make a application, and they can explain which parts, which items they're in possession of and the prosecution position is, well it's one in, all in, but that's a matter to be so.  But if nobody comes forward the items should be disposed of or forfeited.

HER HONOUR:  Mr Devlin, I don't want to increase the workload of your instructor but can I reserve this issue.  I can do orders administratively.  Mr Desmond's made quite clear that he is not a party to this, doesn't wish to be heard effectively.  But I would just be assisted - I understand he's been convicted of a burglary and a common law assault but there just seems to be a disconnect for me between that and money seized.  So if you could just perhaps indicate in correspondence clearly the basis for that and then I will just take a moment to consider it and I can make administrative orders.  So that's what I propose to do.  I understand that we want all of these matters finalised, I won't delay on it but I am just a bit - I find that aspect just a bit curious and requiring a moment's consideration beyond what I have this morning.  All right.

MR DEVLIN:  Yes, thank you, Your Honour.

HER HONOUR:  Thank you.  Is there anything further?

MR DESMOND:  (Indistinct words) should thank Your Honour, both of us for the time you gave us, Your Honour.  It's led to a satisfactory conclusion.

HER HONOUR:  Thanks Mr Desmond.  Thank you counsel for your efforts.  Mr Marijancevic, it's clear in terms of the sentence that I have imposed, all right, that concludes your matter.  We will adjourn the court.  Mr Devlin, I will just await correspondence.  You can see the issue that's concerning me.

MR DEVLIN:  Yes.

HER HONOUR:  And thereafter if I resolve it and I can make favourable orders it will be done administratively.  Mr Desmond, you've made plain that you don't wish to be heard in respect of this.

MR DESMOND:  I don't, Your Honour.  Look all I'd say is there's no charge now for the 6,000.

HER HONOUR:  I understand, I understand.

MR DESMOND:  It should then just go back to wherever they got it from.

HER HONOUR:  I understand the position, but you don't wish to in terms of any correspondence - - -

MR DESMOND:  I don't wish to.

HER HONOUR:  You don't wish to be heard.

MR DESMOND:  It's nothing to do with us.

HER HONOUR:  Yes, understood, all right, thank you.

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