Director of Public Prosecutions v Mezildzic
[2022] VCC 512
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication | |
Case No. CR-18-02200
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADMIR MEZILDZIC |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 12 April 2022 | |
DATE OF SENTENCE: | 12 April 2022 | |
CASE MAY BE CITED AS: | DPP v Mezildzic | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 512 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | Office of Public Prosecutions |
| For the Offender | Mr A. Malik | Adrian Dessi Legal |
HIS HONOUR:
Introduction
1 Admir Mezildzic, you have pleaded guilty to one charge of prohibited person possess firearm, for which the maximum penalty is 10 years’ imprisonment. This is charge 7 on the seven charge trial indictment, J110813590.1.[1] When you recently stood trial on the other six charges, you were acquitted on all of those charges. Before trial, Charge 7 was the subject of a severance order.
[1] The other charges were two of reckless conduct endanger life, one of recklessly causing injury, two of common law assault and one of criminal damage.
2 You have also consented to this court hearing, and have pleaded guilty to, two related summary offences. Summary charge 7, unlicensed driving has a maximum penalty of 60 penalty units or 6 months’ imprisonment while Summary charge 10, commit indictable offence whilst on bail, has a maximum penalty of 30 penalty units or 3 months’ imprisonment.
Circumstances of the offending
3 All three offences were committed on 27 March 2018, in the following circumstances. Police had been conducting covert surveillance on you in the lead-up to your arrest as you were a suspect in a shooting incident that had occurred two weeks earlier. Your recent trial related to charges that were brought against you in relation to that alleged incident.
4 So it was that on 27 March 2018, police saw you drive a white Suzuki swift the short distance from your home address to a car park adjacent to Montclair Avenue, Mount Waverly. The fact that you were an unlicensed driver at the time gives rise to the related summary offence of unlicensed driving alleged in summary charge 7. You were arrested at that location and then taken to City West Police Station for interview.
5 While you were being held there, police obtained a search warrant and then searched your home. In a spare bedroom of those premises, police found an imitation handgun wrapped in a black balaclava. A DNA profile obtained from a sample taken from around the mouthpiece of that balaclava was compared with your DNA obtained from a reference sample you voluntarily provided to police. The points of similarity found in that comparison process provided strong support for you being a contributor to the DNA found on the balaclava.
6 The imitation firearm was of a rudimentary but in some respects convincing construction. It had been constructed from the handle of a speargun and parts of a mag torch and then bound with black and blue insulation tape. It was incapable of discharging a projectile of any sort. As is clear from charge 7 on the indictment, you are charged with having been in possession of that item on the day of your arrest, it having been found in your home when police conducted the search. On account of your criminal record, you were prohibited from being in possession of such a weapon.
7 The fact that you were on bail for a charge of possession of a drug of dependence (heroin) at the time you possessed the imitation firearm, forms the factual basis for related summary charge 10, commit indictable offence whilst on bail. It also represents an aggravating factor in respect of the offence of prohibited person possess imitation firearm.
Record of interview
8 In the police interview, you admitted to having driven unlicensed and to having made and possessed the imitation handgun.
9 You told police that you had only made the imitation firearm the previous night so as to scare any people that came to your house. At one point, you claimed that you were concerned over rumours that were alleging that you had been involved in a shooting. At another point you referred to a neighbours claim of people attending her property and stealing things.
Charged and remanded
10 After being interviewed, you were charged and then remanded in custody, where you remained until being granted bail by a judge of this court on 14 December 2018. Originally, your case was to be dealt with in the summary stream, however it was uplifted to the indictable stream on 8 May 2018.
11 The period of pre-sentence detention that you have served in respect of this matter is therefore 263 days, not including today’s date.
Early plea
12 I note that you had been prepared to plead guilty to these charges from an early stage and that it was only the fact that you were charged with other more serious offences arising from the shooting incident that delayed the final resolution of this matter.
Prior criminal record.
13 As the criminal record filed with this court demonstrates, Mr Mezildzic, you have a very relevant prior criminal history for current sentencing purposes.
14 As the result of some 10 court appearances over a 13 year period between 9 May 2002 and 27 August 2015, you have been convicted of numerous offences, mostly involving dishonesty related offending, but also for possess and use drug offences.
15 But of most significance for current purposes, are the following convictions.
16 You have previously been sentenced for an offence of prohibited person possess imitation firearm (in 2013) and for two offences of prohibited person possess firearm (in 2008 and 2011).
17 You have also been sentenced for six offences of possess controlled weapon without excuse (in 2008 (x2), 2011 (x3) and in 2013), and also for an offence of possess prohibited weapon without exemption/approval (in 2011).
18 Finally, I note that you have thrice been convicted of unlicensed driving (in 2013 (x2) and 2015).
19 You have previously received a wholly suspended sentence, intensive correction orders, which you breached, a community correction order, and two separate custodial sentences, the longest of which was in the form of a head sentence of 18 months with a 12 month non-parole period and imposed on you in late 2013.
Personal circumstances
20 I will now briefly outline your personal circumstances, Mr Mezildzic.
21 You were 34 years of age when you committed these offences. You are now 38, having been born in Bosnia in November 1983.
22 You and your family travelled to Australia as refugees in 1994 in the context of fleeing the Balkan War. You describe your childhood in very positive terms. Although your parents ultimately separated when you were aged 16, they maintained a close relationship and you were able to spend time with each of them.
23 After leaving school in Year 11, you completed an apprenticeship as a tiler in your father’s business. You have worked with your father ‘on and off’ since that time as well as in other jobs doing renovations, carpentry, plastering and tiling.
24 In 2014, you commenced a building business which was initially quite successful but which ultimately failed in 2017 after another builder failed to pay you. In the months leading up to your current offending, you had been forced to look for work, including agency work.
25 Since being released on bail for the current matter, you have undertaken intermittent agency work throughout 2019 and 2020 as a labourer and plasterer. Since March 2020, however, you have rarely worked due to a Covid-19 downturn in available work and on account of the stress you have faced due to this case and your partner’s deteriorating medical condition.
26 It is to your credit that, after many years, you have finally managed to obtain your driver’s licence. In light of its importance to your future rehabilitation and to your ability to assist your partner in attending various medical appointments and more generally, I do not intend to make any order affecting your licence.
27 I note that your relationship with Ms Tresnjic commenced in 2009 and that she had earlier been diagnosed with multiple sclerosis in 2007. The two of you have been living together since late 2014/early 2015, although there have been relationship issues in very recent times.
28 You have experimented with a number of drugs since the age of 14 or 15. Heroin appears to be your drug of choice since the age of 16/17. You had been using that drug as well as ‘Ice’, intermittently, up until the date of your arrest.
29 I have been told by your counsel that you have not used any drugs since being released on bail for this matter.
Matters in mitigation
30 In his written submissions, your counsel relied on the following matters in mitigation on your behalf, Mr Mezildzic.
31 You cooperated with the investigating police and made a number of significant admissions when interviewed.
32 You followed up on that cooperation by pleading guilty at an early stage in these proceedings. By taking that course as and when you did, you have saved the community from the cost and time of a trial in respect of charge 7 and of a contested summary hearing of the two related summary charges. You have been prepared to accept personal and legal responsibility for what you did and to facilitate the course of justice. I am also prepared to find that it is evidence of some remorse on your part.
33 You have been required to abide by stringent bail conditions for a significant period until they were varied in more recent times.
34 There has been a considerable delay in the disposition of this matter through no fault of yours. You could not be sentenced for these charges until such time as the trial in respect of the other charges on the indictment could be held. Due to Covid-19 considerations, the trial date was repeatedly vacated. In the end, you now fall to be sentenced for offences that occurred in March of 2018, just over four years ago. I accept that is an inordinate delay and an important matter in mitigation, for two reasons. First, you have faced an uncertain fate and no doubt much anxiety during that period. And second, until 5 April this year, you had not been arrested or charged with any offending since you committed the current offences. I say ‘until 5 April this year’ because on that morning, as you were entering this court building to appear for the plea hearing in this matter, the PSO’s found three box cutter blades and two jigsaw blades in a bag containing your personal belongings. You have been told that it is likely you will be charged on summons and, if that eventuates, you intend to contest the charge on the basis that you had no knowledge that those items were in that bag.
35 Until the night of 4 April this year, you appeared to have strong and ongoing support from your partner, Ms Tresnjic. However, on the morning of 5 April, I was told by your counsel that the reason for you being late to your scheduled plea hearing was due to you having to deal with the fallout from an argument that you and your partner had the previous night which had led to you leaving the family home and spending the night elsewhere. At present, the two of you are trying to reconcile and spending some time together.
36 You have a trade qualification upon which you can rely to obtain work, particularly as things open up in the aftermath of the current Covid-19 environment. Your track record in terms of past employment appears to be relatively good.
37 And, I am prepared to accept that you still have some support of your partner for whom you have provided much assistance since she was diagnosed with a debilitating medical condition.
Gravity of the offending.
38 The objective gravity of this offending must be considered and taken into account in determining the appropriate sentence in this case.
39 In relation to the prohibited person possess imitation firearm offence, I consider it to be an example towards but not at the lower end on the spectrum of seriousness for this type of offence. The fact that you committed this offence whilst on bail elevates its degree of seriousness. You have provided no plausible explanation for the juxtaposition of that imitation firearm with the balaclava. In this context, I prefer the evidence of Mr Stephanou at trial to that of your partner. I do not accept the gloss that you put on things in the latter part of your interview after you had earlier denied having anything to do with firearms. That does not mean that you are to be sentenced as if you had that item for the purpose of committing any specific offence. But, nor am I required to accept that you had it for some innocuous reason or purpose. In the end, I must sentence you on the basis that there is no explanation for you being in possession of such a weapon.
40 Whilst you are to be sentenced for a single date possession, this was by no means a spur of the moment offence since you had gone to the trouble of making what, in some respects, is a fairly real looking handgun. I am very sceptical of the explanation you gave police when interviewed as it included a claim that you had only made the imitation firearm the night before the police located it during their search. In her evidence at the trial, your partner confirmed that you had made it but said that it had been at your house for some months prior to the police locating it.
41 And, finally, I note that your moral culpability for this offence is also illuminated by the fact that you have three very relevant priors in the form of your possession of either a firearm or imitation firearm while being a prohibited person.
42 In relation to the summary offence of commit indictable offence whilst on bail, I consider it neither a minor nor a serious example of its type. It is relevant to note that there is no similarity between the offence for which you were on bail and the indictable offence committed whilst on bail. Care must be taken not to doubly punish you in respect of the conduct which forms the basis for that indictable offence since it is also the foundation for the most serious of all the charges, charge 7, and the fact that you were on bail at the relevant time constitutes an aggravating feature of that offence. I have been astute to bear those matters in mind when arriving at the appropriate sentences for charge 7 and summary charge 10 in this case.
43 In respect of the remaining summary offence of unlicensed driving, again I consider it neither a serious nor a minor example of its type. Again, it is of some note that you have a number of priors for this type offending.
Relevant sentencing principles.
44 For offending of this kind, the sentencing principles of general deterrence, denunciation and just punishment must be accorded significant weight. The community is rightly concerned about criminals having access to firearms, even imitation firearms. When such circumstances arise, the community has a quite justifiable expectation that when offenders are caught and prosecuted, they will be appropriately punished for their criminal conduct.
45 Specific deterrence is also relevant given the nature and seriousness of the criminal conduct in which Mr Mezildzic engaged and his very relevant prior criminal history. Past sentences, even immediate terms of imprisonment, proved insufficient to deter him from re-offending on this occasion. By the sentence that it imposes on him today, this court must endeavour to dissuade him from committing any similar offences in the future. That said, I also have regard to the fact that he has remained offence free for a considerable time since committing these offences.
46 This court is required to impose a just punishment, informed by the nature and seriousness of this offending and by Mr Mezildzic’s personal circumstances and the matters in mitigation upon which he can rely.
47 This court must also have regard to his age and prospects of rehabilitation, which I consider to be reasonable but somewhat guarded . In coming to that conclusion, I have had regard to the period of offence-free delay that has occurred as well as the personal care duties and responsibilities that he has taken on in relation to his partner. In the event that the relationship continues, it should provide a disincentive to further offending.
Sentencing submissions
48 Mr Mezildzic, your counsel submitted that whilst a sentence of immediate imprisonment was open to impose in this case, a term less than the period you had already served by way of pre-sentence detention was appropriate in all the circumstances.
49 For his part, counsel who appeared on behalf of the Director highlighted the seriousness of the offending which was, he submitted, of sufficient magnitude to warrant an immediate term of imprisonment. In response to the defence submission as to time served, the prosecutor submitted that a sentence equivalent to time served would be within the range.
Sentence
50 In my view, a sentence equivalent to time served is sufficient to meet all of the sentencing requirements in this case. Any lesser period would simply not accord the appropriate weight to such important sentencing factors as general deterrence, denunciation and just punishment. Specific deterrence is another very relevant factor in light of Mr Mezildic’s relevant and relatively extensive prior criminal history.
51 Before arriving at the appropriate sentence, I have considered, balanced and weighed the relevant sentencing considerations in this case as best I can. After doing so, I have decided to convict Mr Mezildzic of each of the charges and to sentence him in the following manner.
52 On charge 7, prohibited person possess imitation firearm, to a term of 263 days’ imprisonment.
53 On summary charge 7, unlicensed driving, to a term of 14 days’ imprisonment.
54 As the sentences on charge 7 and summary charge 7 will be served concurrently, the total effective sentence will be 263 days’ imprisonment.
55 On summary charge 10, commit indictable offence whilst on bail, he will be convicted and discharged.
Pre-sentence detention
56 Pursuant to s 18 of the Sentencing Act 1991, I declare that Mr Mezildzic has served a total of 263 days pre-sentence detention, not including today’s date. I order that such period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of this court
Section 6AAA indication
57 Pursuant to s6AAA of the Sentencing Act 1991, I give the following indication.
58 But for his plea of guilty to the charges for which he has been sentenced to terms of imprisonment today, Mr Mezildzic would have been sentenced to a total effective sentence of 15 months with a non-parole period of 9 months for those offences.
Ancillary orders
59 I also make the forfeiture order in the terms sought by the prosecution, pursuant to s 151 of the Firearms Act 1997. I note that this application by the prosecution was not opposed by the defence.
Other matters
60 Counsel, are there any matters that either of you wish to raise at this stage in relation to the sentence or my reasons for sentence?
61 MR FISHER: Just one matter.
62 HIS HONOUR: Yes.
63 MR FISHER: The balaclava remains outstanding. Could I make an oral submission that that be included in the forfeiture order as - - -
64 HIS HONOUR: How does it come within the relevant definition to be related to the offending of the prohibited person?
65 MR FISHER: The firearm was wrapped in the balaclava. I won't persist.
66 HIS HONOUR: Police can deal with that in some other way through some other means, Mr Fisher. Anything from your point of view, Mr Malik?
67 MR MALIK: No, thank you very much, Your Honour.
68 HIS HONOUR: Now, Mr Mezildzic is not in custody for any other matter. He attended court today so he's been sentenced to time already served. He's not required to go back into custody for processing. So once I leave the bench he's free to leave.
69 MR MALIK: Thank you, Your Honour. As the court pleases.
70 HIS HONOUR: Thank you, counsel.
71 MR FISHER: As Your Honour pleases.
72 OFFENDER: Thank you, Your Honour.
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