Director of Public Prosecutions v Mezeldzic
[2013] VCC 1634
•25 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00956
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADMIR MEZELDZIC |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2013 | |
DATE OF SENTENCE: | 25 October 2013 | |
CASE MAY BE CITED AS: | DPP v Mezeldzic | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1634 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused | Mr B Johnston |
HIS HONOUR:
1
Admir Mezeldzic, you have pleaded guilty to an indictment, charging you with common assault; making threat to inflict serious injury; prohibited person using a prohibited weapon; possessing a drug of dependence and you have admitted a related summary offence that you possessed a controlled weapon without lawful excuse. All of those offences occurred on the one day,
24 February of this year.
2 You have also admitted a breach of an Intensive Correction Order, imposed on 5 October 2011, which was imposed on appeal from the Magistrates' Court in relation to a number of offences, for which you had received a total effective sentence of 15 months imprisonment, with a non-parole period of eight months originally.
3 The report from the Department of Justice, in connection with your breach of the Intensive Correction Order, invites me to commit you to custody for the unexpired portion of the Intensive Correction Order, that being 363 days. It is acknowledged by your counsel on your behalf that that is an appropriate order to make, albeit that I should look at the totality of all of the offences in determining an appropriate total effective sentence.
4 The prosecution has tendered and relied upon a summary of prosecution opening in relation to the offences, the subject of the indictment and the related summary offence. That has been read out in open court. I am not going to read it again. I incorporate it in its entirety into these reasons for sentence.
5 You have also admitted a number of prior convictions and court appearances. I should note that the maximum terms of imprisonment for the offences on the indictment, common assault is six months; threat to inflict serious injury, five years; prohibited person in possession of an imitation firearm, ten years, although the offence had only recently become an indictable offence, it previously carried a maximum term of imprisonment of one year, when it was still a summary offence, but nevertheless, I am bound to sentence under the new regime, albeit I take note of the history of the offence; possession - - -
6 MR JOHNSTON: Your Honour.
7 HIS HONOUR: Sorry?
8 MR JOHNSTON: I am loathed to interrupt. Your Honour said maximum penalty, common assault, was six months. It is in fact five years, as I understand it.
HIS HONOUR: Oh yes, yes, I saw Level 6 and read it badly. Five years is the maximum for common assault. Thank you very much.
9 The maximum for possession of the drug of dependence, and I note it is only one tablet, one year; and for possessing a controlled weapon, the maximum term of imprisonment is one year.
10 Your counsel very helpfully provided me with a chronology of relevant events in your life and a summary of submissions on your behalf, relating to sentence and I have marked that Exhibit 1. Attached to that is a report from Ms Carla Lechner, clinical and forensic psychologist, that is Exhibit 2. And a letter from Dr Youssef, dated 17 October of this year, dealing with the medical condition of your partner.
11 The report of Ms Lechner helpfully sets out a good deal about your background history. On the first page she says this, "I note that he has a prior history of offending that seems to have arisen in the setting of a polysubstance abuse disorder, with underlying symptoms of post-traumatic stress disorder, contributing to both the genesis and maintenance of his addiction problems. Mr Mezeldzic migrated to Australia via Germany from war torn Bosnia when he was exposed firsthand to war time atrocities. He found the adjustment to life here difficult and in his mid-teenage years, developed drug abuse problems, despite a reasonable employment history and a supportive family. Mr Mezeldzic stated that is involvement in this matter occurred when he was high on ice. This adversely impacting on his judgment and decision making. He deeply regrets his actions and expresses appropriate victim empathy." That does not do full justice to Ms Lechner's report, but it is a convenient way of summarising many of the matters with which she deals in greater detail.
12 It seems that you had difficulty with schooling. You left school in Year 10, but you have become a qualified tiler or at least you consider yourself to be a fully qualified tiler. I am not sure whether that is a formal qualification or not, a qualified tiler, carpenter and plasterer. So it seems you are multi-skilled and there is no reason why you should not settle down to a hard working, decent, productive life with your partner and hopefully that is what you will do. There is no doubt from appearance of those who have attended court and are facing me now, that you do have a supportive family and that is very important to your rehabilitation.
13 I think it is encouraging that you have set up house with your partner and I hope that you live up to expectations in that relationship, because much of her well being will depend upon your ability to cope with your drug problem. And it is a problem, even though you have had an opportunity of drying out, inside, there are probably a number of underlying psychological issues, including post-traumatic stress disorder and some depression, that you will have to deal with and resorting to drugs again is only going to get you back into further trouble.
14 You have had some experience of just about all of the range of drugs that are available illicitly and it will not be easy for you to deal with that. Nobody will pretend that. But you have got to get a grip on yourself, otherwise you will be simply coming back to this court on a regular basis and getting longer and longer sentences.
15
I suspect pretty much all of your offending conduct has been down to sheer stupidity, coupled with the psychological disorders from which you suffer and which are, it seems, hitherto untreated. You have been given opportunities in the past, other Intensive Correction Orders by the courts. In fact on one view you have been treated quite leniently by the courts and on
5 October 2011 you were treated leniently again and it incredibly stupidly, you go and breach that order within what, 16 days. You have been dealt with for the breaching offence. But I have to sentence you for the breach itself today. And you have not done all of the unexpired time in pre-sentence detention.
16
You have got to start taking responsibility. You know, you cannot go on blaming what happened in the past and the difficulty you had in settling into a new country and all of those things, which are very real and do not let me play them down. But sooner or later, you know, you just have to take responsibility for yourself. And what are you, 31 now? You know, it is time to put away these adolescent frailties and knuckle down as an adult.
I am sure that you will get help from those that have come here today and to support you, but much will depend still on your willingness to help yourself.
17 That is probably enough of a lecture from me. I am not going to go through in detail the rest of Ms Lechner's thorough report, but that is part of the materials that are available and will form part of the file and the history of this matter, to the extent that other people need to scrutinise the sentence that I ultimately have to impose.
18 Your counsel rightly pointed out, you have pleaded guilty and you indicated a plea of guilty at an early opportunity. There has been a period of negotiation and it seems to me that with respect to all that a sensible solution has been found to the indictment that - which led to the indictment to which you have ultimately pleaded guilty. That series of offences is just, as you I think pointed out to Ms Lechner, really a day of madness and obviously heavily fuelled by ice. That is no excuse, but it explains how you behaved in a thoroughly aggressive, nasty way to a number of different people and if you take ice again, you will probably behave in a nasty, aggressive way to other people and will get yourself into trouble. I am sure that you are not a very pleasant person to be around when you are on ice and you probably realise that.
19
It is suggested that you are remorseful and that you do have insight into your offending. I am inclined to accept that. You certainly expressed that to
Ms Lechner. It is consistent with your plea of guilty and you have had plenty of time to reflect now, since you have been in custody for the last 243 days.
20 I am certainly going to give you full credit for your plea of guilty and I also give you credit for what I perceive to be genuine remorse for your offending. It is very easy to be remorseful when you are looking at events in the cold light of day, but of course when you are on ice, you do not see it that way, do you?
21 It was submitted by your counsel on your behalf that a gaol term is warranted and I have to agree with that. He invites me though to make the sentence that I pass largely concurrent with the 363 days that I need to order you to serve on the unexpired portion of your Intensive Correction Order. He invites me, because of the obvious need for you to continue to get some help, once you have finished your sentence, some professional help, to impose a non-parole period, which effectively lets you out pretty much immediately.
22 I think that a substantial non-parole period is a good thing, but I think I would be failing in my duty, and you will understand that, if I let you off scot-free effectively for the offences on the indictment, or for the other offences for which you received the Intensive Correction Order. So I am not prepared to go quite as far as he invites me, but I am prepared to go a significant way down that track.
23 I do note that the offences for which the Intensive Correction Order was imposed, are really quite old now and although it is only proper that you are dealt with effectively for those, it has been hanging over your head for some considerable period of time. That will have weighed on your mind and is in itself something of a punishment, so I do take that into account.
24 I do think that a substantial degree of concurrency is warranted, even though prima facie, I should be imposing sentences that are cumulative, one upon the other in respect of the offences on the indictment, as between the offences, the subject of the Intensive Correction Order.
25 I invited the prosecution to indicate the range of sentences that they submit was an appropriate range for me to consider in imposing sentence. They submitted that a total effective sentence of between two and three years, with a non-parole period at my discretion was an appropriate range, having regard to current sentencing practice and the competing principles that I have to abide by in reaching an appropriate sentence. Of course I have got to punish you. I have got to express the denunciation of this court for your offending conduct and even though it was committed all on the one day, that is in relation to the indictment, there are some pretty serious offences.
26 I have to take into account the effect on the victims. As you will have noted from the discussion during the plea hearing, I pay particular regard to Diane Robbins, as being likely to have been seriously frightened by your conduct in respect of her. I would regard that as significantly the most serious of the offences.
27 I am also required to impose a sentence that effectively deters you from committing further offences and perhaps most importantly, deters others from engaging in conduct of that kind. But I am also required to facilitate your rehabilitation to the extent that I can, having regard to those other sentencing considerations. I think your rehabilitation is very important, because I suspect that you have it in you to lead a thoroughly decent life and a productive life. You will be starting late, but nevertheless, it seems that you have made some steps in the right direction and kicking are yourself for having been so stupid as to behave in the way you did, earlier this year. You have got to pay for that now, but do not let that put you off having another crack, once you get out and this time it has got to be a red hot go and you have got to sustain it.
28 All in all, your counsel suggested that your prospects of rehabilitation are good. I am tempted to say that that is right. I think though that I have to be a little bit guarded, because you have had chances in the past. You have had chances to reflect on your conduct in the past and you are 31 years of age now, not 21. So there is a prospect of backsliding, I think and there will be until you have really got on top of the drugs.
29 I am going to impose sentence upon you now, so if you would just rise.
30
For the breach of the Intensive Correction Order, which you have admitted,
I commit you to custody for a period of 363 days, being the unexpired portion of that order. For the offences on the indictment, Charge 1 of common assault, I convict you and sentence you to imprisonment for one month. On Charge 2 of making a threat to inflict serious injury, I convict you and sentence you to imprisonment for a period of 16 months. On Charge 3 of being a prohibited person carrying an imitation firearm, I convict you and sentence you to imprisonment for six months. On Charge 4 of possession of a drug of dependence, I convict you and discharge you. In relation to the related summary offence that you have admitted, that of possessing a controlled weapon without lawful excuse, I convict you and sentence you to imprisonment for one month.
31 I order that the sentence on Charge 2, that is of 16 months, is the base sentence and I further order that the sentence of one month on Charge 1 and one month of the sentence on Charge 2, be served cumulatively with each other and with the sentence on Charge 2, making a total effective sentence on the indictment alone of 18 months imprisonment and I order six months of the 363 day period be served cumulatively upon the sentence for the indictment. Can I do it that way around? I want to make a total effective sentence of two years.
32 I will go on to say, before you get too concerned, that I order a non-parole period of 12 months. That effectively means that you have to do another four months, over and above the eight months that you would have had to do on the original sentence, for which you received the Intensive Correction Order. I think it means that you would have to serve a little over three and a half months before you are eligible for parole.
33 Now, technically have I got that right?
34 MR JOHNSTON: Your Honour, if I might just have a moment with Ms Saville?
35 HIS HONOUR: Yes, sure.
36 I further declare 243 days of pre-sentence detention is to be reckoned as time served on the sentence that I have imposed and to be deducted administratively from the time that you will actually have to serve.
37 But for your plea of guilty I would have sentenced you to a total effective sentence of three years imprisonment, with a non-parole period of 21 months.
38 I make the orders for disposal and forfeiture, in accordance with the drafts that I have received.
39 Now, you can take a seat.
40 MR JOHNSTON: Your Honour, may I clarify? In terms of pre-sentence detention, did Your Honour say 243 days?
41 HIS HONOUR: Isn't that right?
42 MR JOHNSTON: Or 240 days? It is 243.
43 HIS HONOUR: Didn't I say 243?
44 MS SAVILLE: (Indistinct)
45 HIS HONOUR: Oh, did I say 240 the first time?
46 MS SAVILLE: You did.
47 HIS HONOUR: Well I was - I probably stopped, I was at 240 and then I was thinking 243. So it is 243 days, is what I have declared, which I think is what you have agreed is correct, is that right?
48 MR JOHNSTON: That is right, Your Honour, not including today.
49 HIS HONOUR: Not including today, yes.
50 MS SAVILLE: Your Honour, in terms of the cumulation, I understand that the 363 should be imposed, but the cumulation based on the total effective sentence, rather than the other way around, which is how Your Honour has structured that sentence?
51 HIS HONOUR: So what I have to do is to extract the - so I would impose - I would order that whatever the period on top of 363 day - no, sorry, that's not right. Yes, I want to achieve partial cumulation, so how do you suggest I do it?
52 MS SAVILLE: If Your Honour imposes the 363 days for the breach, forms the total effective sentence of 18 months, with the non-parole period - - -
53 HIS HONOUR: No, the 18 months is in relation to the indictment alone.
54 MS SAVILLE: Indictment.
55 HIS HONOUR: Yes.
56
MS SAVILLE: And cumulates the total effective sentence on the Intensive Corrections Order, rather than cumulating the Intensive Corrections Order on the total effective sentence? It is incorrect, Your Honour, I understand that Your Honour must have the total effective sentence encompassing both the indictment charges and the breach of the custody time, rather than having
to - - -
57 HIS HONOUR: So I don't accumulate, I just say total effective sentence, do I?
58 MS SAVILLE: I understand that to be the case with the non-parole period.
59 HIS HONOUR: Yes, well the - I mean, what I want to achieve is total effective sentence overall of two years.
60 MS SAVILLE: Yes.
61 HIS HONOUR: With a non-parole period of 12 months.
62 MS SAVILLE: Yes.
63 HIS HONOUR: Which gives him a full 12 months on parole and subject to therefore the programs that the parole board might be in a position to offer him.
64 MS SAVILLE: Yes, Your Honour.
65 HIS HONOUR: That is what I intend to achieve. So I simply declare a total effective sentence overall, do I, of two years?
66 MS SAVILLE: Yes, Your Honour.
67 HIS HONOUR: All right. Yes. So I have got to make some order as to these partial cumulation, haven’t I? And it seemed to me that the simplest way of doing that was simply to extract the six months from 363 days.
68 MS SAVILLE: Yes. Unfortunately I don't believe it can be done that way.
69 HIS HONOUR: So I have got to work out - I have got to say that 367 days - 67 days, is it?
70 MS SAVILLE: 363 days.
71 HIS HONOUR: So, yes, but there is 365 day in a year, so I would have to say that 367 days of the sentence on the - total effective sentence on the indictment is to be served cumulatively upon the sentence of 363 days, making a total of - - -
72 MR JOHNSTON: Two years.
73 HIS HONOUR: Two years imprisonment.
74 MS SAVILLE: Yes, Your Honour.
75 HIS HONOUR: Does that sound right?
76 MS SAVILLE: I think so, Your Honour.
77 HIS HONOUR: All right I will amend my cumulation order as between the indictment and the other sentences, to read that 367 days of the 18 months imprisonment imposed on the indictment, total effective sentence, is to be served cumulatively upon the 363 days, being the unexpired portion of the Intensive Corrections Order, which makes I think a total of two years imprisonment, with a non-parole period of twelve months. Does that meet the technicalities?
78 MS SAVILLE: Yes, Your Honour.
79 HIS HONOUR: All right well we will do it that way. I have signed the draft orders that you provided me and I will hand those down.
80 Mr Mezeldzic, I wish you well and I hope that things go well for you and your family. All right? And I would hope that we do not see you here in this court again. Thank you.
81 Yes, I am very sorry, I have been totally ignoring of Correction in Dandenong and Madam I thank you for your patience. I hope you had a little bit of a break, did you, whilst I was considering the sentence? You have not been just sitting there waiting for me to come back?
82 SUPPORT PERSON: (Indistinct)
83 HIS HONOUR: Yes, all right.
84 MS SAVILLE: Your Honour, I apologise. Before Your Honour leaves the Bench, in relation to the breach, did Your Honour make an order cancelling the ICO?
85 HIS HONOUR: I don't think I need to, do I, it's expired.
86 MR JOHNSTON: It is expired.
87 MS SAVILLE: I believe there still needs to be - - -
88 HIS HONOUR: I can't see how I can cancel an order that's expired.
89 MS SAVILLE: As Your Honour pleases.
90 HIS HONOUR: But if you want me to say it's cancelled, if I need to cancel it, that's what I say.
91 COUNSEL: As Your Honour pleases.
92 HIS HONOUR: The implication is that if it had been in existence, I would have cancelled it, yes. All right, thank you.
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