Director of Public Prosecutions v Memedovski

[2015] VCC 1541

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01261

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEBASTIAN MEMEDOVSKI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2015
DATE OF SENTENCE:	27 October 2015
CASE MAY BE CITED AS:	DPP v Memedovski
MEDIUM NEUTRAL CITATION:	[2015] VCC 1541

REASONS FOR SENTENCE
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Subject: Reckless Conduct Endangering Life, Stalking, Trafficking, Firearms.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 5 years imprisonment with 3 years 4 months Non Parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace
For the Offender	Mr A. Malik

HIS HONOUR:

1Sebastian Memedovski, you have pleaded guilty to one charge of reckless conduct endangering life for which the maximum penalty is ten years' imprisonment (Charge 1); two charges of stalking for which the maximum penalty for each charge is ten years' imprisonment (Charges 2 & 3); three charges of being a prohibited person in possession of a firearm (Charges 4, 9 & 10) for which the maximum penalty for each charge is 1200 penalty units or ten years' imprisonment; one charge of common assault (Charge 6) for which the maximum penalty is five years' imprisonment; one charge of using a firearm whilst prohibited (Charge 7) for which the maximum penalty is ten years' imprisonment; one charge of making threats to damage property (Charge 8) for which the maximum penalty is five years' imprisonment; two charges of trafficking in a drug of dependence (Charges 5 & 11) for which the maximum penalty for each charge is 15 years' imprisonment, and one charge of possession of a drug of dependence for which the maximum penalty in the circumstances of your offending is conceded to be 40 penalty units.

2In addition, you have pleaded guilty to a number of related summary offences and you have consented to having them dealt with by this court.  The first of those charges is Charge 8, possession of cartridge ammunition without a licence or permit, for which the maximum penalty is 40 penalty units.  Summary Charges 9-13 inclusive are each charges of possession of various prohibited weapons without exemption.  For each of these charges the maximum penalty is two years' imprisonment.  The final summary charge is a charge of possession of a controlled weapon without lawful excuse (Charge 13) for which the maximum penalty is also two years' imprisonment.

3Your offending was summarised in a lengthy prosecution summary which was tendered in evidence as Exhibit A and was read in open court by the prosecutor Ms Bate.  That opening was accepted by your counsel, Mr Malik, as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I here repeat what is there set out except in a very summary way.

4As can be seen, the charges here arise from two separate streams of charges.  In one stream the informant was Sheppard and that offending occurred between 6 and 22 January 2014 and involved a complainant, KM.  The other involved the informant Crompton and that offending occurred between 26 and 29 January 2014 and related to the complainant, VB.

5

You were charged with unrelated offences and remanded in custody on

29 January 2014.  You refused to be interviewed in relation to any of these matters.

6There was a committal hearing on those charges which concluded on 14 July 2014, at which time you were bailed to appear at this court for a directions hearing the following day.

7Around 18 March 2015 you were charged with the offending in the Sheppard brief and there was a directions hearing in the Magistrates’ Court on 25 March 2015, at which time there was an application to revoke your bail which was granted and you have remained in custody since.

8As at the 24 September 2014 when I heard your plea it was agreed you had served 453 days pre-sentence detention.

9There was to be a trial on each of the sets of charges and there was a contested committal on each set of charges but the matter resolved into a plea on 11 August 2015 and the plea was listed.

10To your credit you have pleaded guilty to the charges and I treat you as having done so at an early stage, although not at the earliest opportunity.  You are entitled to a reduction in sentence because of your pleas of guilty and this is reflected in the overall sentence that I shall pass.  By your guilty pleas you have saved the time and costs of what might have been a lengthy trial, possibly two trials ,and I treat your guilty pleas as evidencing remorse.

11Charge 1 relates to an incident that occurred at about 11.00 pm on the evening of 18 January 2014.  You and other associates met in the car park of Dan Murphy’s in Cranbourne West.  You got out of the vehicle carrying a shotgun and discharged a round of the shotgun, pointing away from the vehicle from which you had alighted.  The gun shot was heard by all present and witnesses who were some distance away.  This is a serious example of this kind of offending.  There were a number of persons present and you discharged the gun in a public place.  It is fortunate that no one was hurt and nor was there property damage.  The sentence imposed in respect of this charge must clearly reflect the court's denunciation of your conduct and send a clear message to others who may offend in this way.

12Charge 2 is a serious example of the offence of stalking.  Over a period of two days you sent many SMS messages to your victim which were aggressive, abusive and threatening.  These messages were sent after the offending in Charge 1. I  admitted into evidence a victim impact statement from the victim of your offending in this charge.  That document reveals the impact which prolonged threatening behaviour can have upon the victim.  She continues to have moments where she is in fear.  In passing sentence I have taken the victim impact statement into account.

13Charge 3 is another charge of stalking involving another different victim, on different dates and is another serious example.  In this charge you made your threats in conversations over the telephone.

14Charge 4 relates to your possession of the firearm used in Charge 1.  In my opinion there is no need for any part of the sentence I impose on this charge to accumulate upon the sentence I have passed relating to Charge 1.

15Charge 5 is a charge of trafficking in a drug of dependence, methylamphetamine.  This is a rolled-up charge that includes the supply of seven grams of the drug ice on 7 January 2014, followed by a further 1.75 grams of the same drug on 18 January 2014.  Whilst I accept your offending in this charge is not at the highest level, it nonetheless is a serious example of this kind of offending because it involves repeated supply between dates.  There is no evidence you were simply trafficking drugs which you had obtained for your own self-use.

16Charges 6 and 7 relate to an incident that occurred in the early hours of the morning on 26 January 2014.  The complainant in this charge came to your premises, a bungalow at the rear of your grandparents property where you reside.  There you had in your possession the weapons and ammunition that are the subject of the summary charges.  You asked the complainant to take a seat on the couch and you then became aggravated and aggressive and you produced a sawn-off shotgun from under, or near, the refrigerator.  It was a Winchester single barrel sawn-off shotgun.  You split the firearm and collected three gunshot rounds from a zip-up sunglasses case and you loaded the shot gun, waving it around as your victim sat on the couch.  You said ”You are lucky that I don’t pull the trigger because I would do 20 years for this.  Are you scared?”.  

17This conduct, in what you did and said, terrified the victim and is the factual basis for the charge of assault.  What you did with the firearm accounts for Charge 7.  Again, I have taken the view that the conduct in the assault charge overlaps with the conduct involved in the charge of using the firearm, and there will be no accumulation of the sentence imposed on that charge.

18Charge 8 relates to the same victim and involves threats made by you to her between 26 January and 28 January 2014.  You sent a number of harassing and threatening text messages, as well as making a number of threatening and harassing phone calls, messages in which you threatened to destroy the property of your victim, namely her home, by throwing a flash bomb through the roof of the property.

19At the time of these offences you were the subject of a suspended sentence making you a prohibited person from possessing firearms.  When police raided your property on 29 January 2014, in addition to the shotgun the subject of earlier charges, you were found to be in possession of an unregistered firearm, being a black Ruger .22 calibre rifle.  The firearm was not secured.  These events account for Charges 9 and 10.

20

Charge 11 arises from the fact that when police came to your property on

 

29 January 2014 you were found to be in possession of a trafficable amount of methylamphetamine (Charge 11) and a quantity of cannabis (Charge 12).

21Your offending may be characterised, I think, as threatening, violent, unpredictable and unsafe.  It is aggravated by the fact that you committed these acts whilst the subject of a suspended sentence and, having being given a chance to reform your ways through a suspended sentence, you have conducted yourself with complete disregard for the law and in an erratic and unpredictable manner.  Your counsel submitted that your offending was explained by the fact that you are addicted to drugs and this offending occurred whilst you were affected by drugs.  I accept that you were probably affected by the drug ice at the time you committed these offences and that this explains your conduct but it does not excuse it.

22You are now 27 years of age. When you pleaded guilty you admitted a lengthy criminal history from six court appearances dating back to the Heidelberg Children’s Court in July 2007.  In February 2009, you were sentenced in this court on three charges of armed robbery and five offences involving dishonesty.  At that time you were a youthful offender and the sentencing judge took all of that into account in imposing a term of imprisonment of 27 months, which she wholly suspended for a period of 27 months.  

23You had served 60-odd days in custody in presentence detention.  The important thing is that you were given a chance to change your ways and the sentencing judge accepted at that time the evidence that you were seeking help to change your ways.  There have been other occasions where the courts have given you every opportunity to change your ways by imposing non-custodial dispositions.  There have been times when you have breached those dispositions and still the courts have not dealt with you extending further leniency.  Yet you have not taken full advantage of the sentences that have been designed to assist in your rehabilitation.

24In this offending your counsel conceded, quite properly, that your conduct was serious and that a term of imprisonment was to be expected.  But he argued that I should impose a sentence of no more than two years' imprisonment and then I should impose a Community Corrections Order.  If I were to accept that submission I would be confined to imposing a term of imprisonment of no more than two years.  The prosecution submitted that such a disposition was outside the sentencing range.  The prosecution submitted that any sentence imposed must properly reflect application of the principle of general deterrence, denunciation and, in your case, protection of the community from you, and specific deterrence.

25I agree with the prosecution submission in this case.  Having regard to the level of your offending, and your failure to embrace earlier chances given to you to commit to a full rehabilitation, I have decided that any disposition involving the making of a Community Corrections Order would result in an inadequate sentence.

26You were supported in the courtroom on the hearing of your plea by your former wife who gave evidence on your behalf.  You were also supported in court by your grandparents.  I have no doubt that your early life has been difficult for you.  You have never known your mother and you have been raised by your maternal grandparents.  You have seen your father only intermittently, particularly when you were young and he came back into your life when you are about 12, although you have not seen him now for about 13 years.  Your grandparents have 15 grandchildren.

27Your former wife gave very impressive evidence on your behalf.  You have a son, now aged five, from your relationship with her.  When she met you in 2007 she was not aware that you were using the drug ice or other harder drugs.  You were then working doing fencing with a friend.  You had previously commenced an apprenticeship as a panel beater and you worked in that field for three or four different employers, each of whom closed business.  Your former wife told me that when you are not using drugs you are, ”Caring, honest, loving and helpful.”  She also told me, and I accept, you are very caring and helpful toward your grandparents.  I was told, and accept, that you are loving and caring towards your son.  I was told, and accept, that you are dedicated to your son and that has never changed.  

28Although your former partner obtained an intervention order against you soon after your relationship ended, she has not extended that intervention order.  She told me, and I accept, that you were at first aggressive towards her but that abated and you have both mutually been able to make arrangements for you to have time with your son without recourse to the courts.  All of that is to your credit.  Your former wife told me, and I accept, that when you were with her your drug of choice was cannabis.  But after your separation you started using harder drugs.  She is not concerned with your son being with you whilst you are living with your grandparents.  She gave evidence, and I accept, that when you are drug free you are a completely different person and for the better.

29I was told, and accept, that your grandparents are to some extent dependent upon you.  I was also told that their health is declining and I was provided with a medical report relating to your grandfather.  I have taken this into account.  Your counsel did not submit that there are extraordinary circumstances that should be taken into account to reduce any sentence imposed because of this fact.

30Much of your time on remand has been spent at the Melbourne Remand Centre.  A few days before the plea you were transferred to Port Phillip Prison.  You did not take part in the recent riots at the Melbourne Remand Centre but I accept that your time in custody thus far has been much harder since a lockdown was imposed consequent upon the riots.  Also, you have not been able to partake in various courses in prison that might have assisted you.  I have taken this into account.

31In sentencing I must have regard to a number of matters such as the seriousness of the offences involved, your culpability for it, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.  In this case I must also have particular regard to protection of the community from these kind of criminal acts carried out by persons such as yourself whilst affected by drugs.  That you were drug affected, as I said, explains your crimes but your culpability remains high.

32Offending of this kind must have full regard to proper application of the principle of general deterrence to deter others who might offend as you have.  Further, the sentence must adequately reflect denunciation and the fact that in the stalking charges your victims were women with whom you had previously engaged in a relationship.  Your offending was particularly threatening and called in aid violent acts in order to instil fear.  It involved the possession and use of weapons in a climate where drugs were sought from you and supplied by you.  

33The sentence that I must pass must reflect proper application of just punishment and have regard to your prospects for rehabilitation.  I think your prospects for rehabilitation are poor.  This is based upon the evidence of your conduct involved in these charges and the fact that you have before said that you were embarking upon rehabilitation but have failed to go very far with that.  At best, your prospects could only be regarded as extremely guarded.  In passing sentence I have taken all of this into account.

34Would you please stand, Mr Memedovski?

On Charge  1, reckless conduct endangering life, you are convicted and sentenced to a term of imprisonment of two years.+

35On Charge 2, stalking, you are convicted and sentenced to a term of imprisonment of two years.+

36On Charge 3, stalking, you are convicted and sentenced to a term of imprisonment of two years.+

37On Charge 4, being a prohibited person in possession of a firearm, you are convicted and sentenced to a term of imprisonment of six  months.

38On Charge 5, trafficking in a drug of dependence, methylamphetamine, you are convicted and sentenced to a term of imprisonment of two and a half years.

39On Charge 6, assault, you are convicted and sentenced to a term of imprisonment of nine months.+

40On Charge 7, being a prohibited person used a firearm, you are convicted and sentenced to a term of imprisonment of six months.

41On Charge 8, making threats to damage property, you are convicted and sentenced to a term of imprisonment of six months.

42On Charge 9, being a prohibited person in possession of a firearm, you are convicted and sentenced to a term of imprisonment of six months.

43On Charge 10, being a prohibited person in possession of a firearm, you are convicted and sentenced to a term of imprisonment of six months.

44On Charge 11, trafficking in a drug of dependence, methylamphetamine, you are convicted and sentenced to a term of imprisonment of two years.+

45On Charge 12, possess a drug of dependence, Cannabis L,  you are convicted and fined $100.

46On summary Charge 8, possession of cartridge ammunition without a licence or permit, you are convicted and fined the sum of $500.

47On Charges 9-13 inclusive, which are each charges of possession of various prohibited weapons without exemption, you are convicted and I make an aggregate sentence of six months' imprisonment to be served concurrently with the other sentences passed this day. 

48I direct that six months of each of the sentences I have imposed on Charges 1, 2, 3, 6 & 11 cumulate upon the sentence imposed on Charge 5 and upon each other, making a total effective sentence of five years' imprisonment.  I direct that you serve a minimum of three years and four months before you are eligible for release on parole.

49I declare that there has been 485 days pre-sentence detention and that 485 days be reckoned as having been already served under the sentences passed this day and be deducted administratively.

50For the purposes of s.6AAA of the Act I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of eight years' imprisonment, and I would have directed that you serve a minimum term of five years and four months' imprisonment.

51I have been asked by the prosecution to make an order that you undergo a forensic procedure for the taking of a scraping from your mouth.  That application was not opposed and, having regard to the serious circumstances of your offending, and your prior convictions, I am of the opinion that the granting of such an order is in the public interest and I have signed the order.

52I have also been asked to make disposal orders and forfeiture orders which were not opposed and I have signed those orders.

53Anything arising out of that, Ms Wallace?

54Ms WALLACE:  No, Your Honour.

55HIS HONOUR:  Mr Malik?

56MR MALIK:  No thank you, Your Honour.

57HIS HONOUR:  Very well.  Thank you.  Could you remove Mr Memedovski please?

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