Director of Public Prosecutions v Mezildzic

[2014] VCC 1861

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-00814

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUHAMED MEZILDZIC

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 November 2014
CASE MAY BE CITED AS:	DPP v Mezildzic
MEDIUM NEUTRAL CITATION:	[2014] VCC 1861

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 N. Batten
For the Accused	Mr J. Torney

HIS HONOUR:

1Muhamed Mezildzic, you have pleaded guilty to five charges of indecent act with a child under the age of 16 years.  That crime carries a maximum penalty of ten year's imprisonment.  You are now 53 years of age.  You pleaded guilty to a settled indictment.  In these circumstances you have alternated between denying responsibility and accepting it but I give you the benefit of the doubt insofar as remorse is concerned. 

2You must, of course, get the utilitarian benefit of that plea of guilty of avoiding the need for the child victim to give evidence.  However it should be noted that the matter proceed to a contested committal and that others were, in fact, cross-examined.  You do have a criminal history.  The only matters which I consider to be of real relevance are two indecent exposure charges from the mid-1990's which occurred shortly after your arrival in Australia.

3Firstly, because of the offending, you are to be placed on the Sex Offender's Register and I advise you that the period of reporting will be for a period of eight years.  Mr Torney, if you could go and get his signed.  If you could go with my Associate please.  All right I direct that that be entered onto the Register.

4Because of the nature of the offending and the sentence to be imposed from Charge 3 on you will be sentenced as a serious sex offender.  I am aware that community protection becomes the paramount sentencing principle.  The Crown have not sought a disproportionate sentence, nor have I given one and I am aware that the sentences are to be cumulative unless otherwise ordered and in these circumstances I will be directing accumulation because it is easier to interpret but I am well aware of the provisions.

5The offending arises out of circumstances in November 2013.  You were living in the Cranbourne area.  Also living in that neighbourhood was another family with a nine year old daughter.  That child and other children in the neighbourhood visited your house frequently to play with the pets in the back yard.

6On 24 November 2013 in the afternoon the mother dropped the child at a birthday party, collected her at about 4.30 pm and returned home.  The child went off with a group of neighbourhood kids.  After returning from the party the child played with her friends.  They visited your house.  The girls asked "Are you there?" from the front of the property and you said you were out the back and invited them to come round.  They entered through a gate and went into the big yard where you were sitting near the fire drinking and smoking.  You were wearing black shorts with a yellow stripe and brand new shoes and socks. 

7The girls played with the dog and some kittens and playing in a tree.  On earlier occasions, and this is uncharged acts in that sense, you had kissed the complainant on the face and lips "a lot" as she said when her friends had left.  She noticed that you never wore underwear under your shorts and she had seen your penis and "balls" lots of times.  On this particular afternoon you were wearing shorts but not underwear and she could see, as she describes, your "balls".  That gives rise to Charge 5 of indecent act.

8She was wearing shorts and a T-shirt.  You put moisturiser, as she described it, on your hand and rubbed them on her legs.  One of the other girls saw this happening before she left.  It was sunset, the complainant wanted to go home because she knew she was not allowed to be there alone but you told her to stay for a few more minutes and she stayed and played with the dog. 

9You slid your hands in her underwear and rubbed moisturiser on her buttocks.  That gives rise to Charge 1 of indecent act.  You tried to feel her vagina and were touching her under her underwear.  That is part and parcel of Charge 1.  She told you to stop and that it was rude.  You said "Why is it rude?" and she said "Because you are touching a girl's vagina".  She closed her legs and whacked your hand away and kept playing with the dog.

10You told her to come closer and then dragged her by the wrist into the kitchen area of the house.  She said "Stop" but you said no.  No-one else was there.  In the living area near the kitchen you kissed her and told her to open her mouth.  She refused and gritted her teeth.  You opened her mouth with your finger and put your tongue in her mouth and kissed her.  That gives rise to Charge 2 of indecent act.

11She pushed you away.  You again tried to feel her vagina under her underwear and rubbed your finger on it.  That gives rise to Charge 3.  You grabbed her hand and were holding it really tight.  You made her feel your penis and "balls"  holding her hand in your hand so she could barely move her.  That is Charge 4 of indecent act.  She told you to stop but you said you could not help it, "You were so beautiful".  She eventually bit your finger to get away.  That gives rise to Charge 4 of indecent act.

12She ran out the back door, grabbed her dog, got home at about eight o'clock and offered to have a bath.  Her mother thought that was unusual.  She washed out her mouth and brushed her teeth lots of times.  She did this because your tongue smelt like beer and smoke.  She said that what had happened made her feel "disgusting".  She washed her hands and had a bath.  That night her mother noticed that she was up a couple of times and the next morning she told her mother that she did not sleep much.  Her mother was worried.

13On the Monday she went to a primary school teacher and said she was scared and the complaint went from there.  Police went to your house and you were interviewed and you maintained that what the child was saying was lies.  A search warrant at your house found a bottle of cocoa butter lotion in the backyard and forensically that was then linked to what the complainant had said.

14You were charged and have remained in custody ever since.  The history of the matter is of some significance.  As I have indicated on May 2014 there was a contested committal.  On 1 September 2014 the matter was listed for trial in this court.  You pleaded guilty to the five charges on this plea indictment for which you get the benefit and, as I understand it, three charges relating to other complainants were then withdrawn.  Two charges relating to a fourth complainant were transferred to the Magistrates' Court and are listed for summary hearing in January of next year.

15Those matters, of course, do not aggravate the circumstances for which I sentence you and I know virtually nothing of them.  However as I pointed out to your counsel the other day the history of the matter is such that you may have already had, to a certain extent, the benefit of a settled indictment and I am certainly not going to treat it on the basis that the offending is isolated.  That does not of course aggravate it.  It just removes what is otherwise commonly a mitigating feature.  You also, of course, have the prior matters going back now some 20 years.

16The offending, particularly from the point in time when the child is taken by wrist forcefully into the house, in my view, is serious.  I am well aware of the current sentencing practices for this type of offending and am constrained by it.  I am also aware that all of the charges take place within a relatively short time frame and that according very significant concurrency is warranted.

17On 27 March of this year you were sentenced to be imprisoned for ten months for other matters and accordingly the pre-sentence detention for this is 122 days.  That means that I take into account some seven and a half months of Renzella time or lost opportunity for concurrency.  I do not, of course, take that into account in a mathematical way simply in an overall way.

18It was put to me that you have effectively done enough gaol for me and that you could be released upon your earliest release date for the other matter which is January 2015.  I do not think that that is the situation. 

19As judges we frequently read victim impact statement in matters such as this and I have read the victim impact statement of the young girl.  I am well aware of the contents of the victim impact statement of the parents.  The damage that can be done to children by this sort of offending is gross.  It causes all sorts of emotional disturbance and can continue for extended periods of time.  That is almost trite to say.  What is often not fully appreciated is the trauma it causes to families.  It usually results in anxiety, often depression and ongoing psychological difficulties.

20One of the matters which I think is important in this sentencing process is that, as a quote from the mother's victim impact statement in this particular matter, "Since the assault I have felt many emotions including increased anxiety, guilt that I was not able to protect my daughter - " and then names her, "extreme sadness, anger, depression shock and fear that it may happen again".  That is almost universal in matters such as these and it is for those very reasons the effect on the child and the effect on the family that an active custodial sentence is usually and in your case, certainly unavoidable.  In determining the length of that sentence, as I have said, I have taken into account that you already have seven and a half months of Renzella time but I have to say I think that allowing for current sentencing practices there still has to be some extra time served.

21Tendered on your behalf were reports from Ms Pamela Matthews and also the Alfred Hospital.  It is difficult to summarise those reports because you are a very poor historian.  Whether that be deliberate or not I have got no idea.  As I said during course of the plea I certainly accept that there is something seriously wrong with you.

22The report of Ms Matthews refers back to, and this gives me more confidence in her ultimate opinions, that back in 2006 you had been treated at the Southern Health for multiple suicide attempts, depression, at that time borderline personality, poly-substance abuse and a diagnosis of major depression.  You self-report a diagnosis of post-traumatic stress and for these purposes I accept that there is a probability that such a condition exists. 

23The circumstances that the psychologist reports are of post-traumatic stress disorder and major depressive disorder.  You have had no access to treatment in the past, you have been an alcoholic since the mid-90's and apparently have not received much, or been reluctant to receive much, treatment in respect of that.  She assesses you as being a moderate to high level of re-offence risk.  She says "

"Mental health factors contributing to Mr Mezildzic's offending have been chronic post-traumatic stress disorder with hallucinatory phenomena, assistant depressive disorder, dysthymia, major depressive disorder substantiated by medical records".

24She points out, and I do take this into account, that you had approximately eight weeks before this matter, learned of your mother's death and you made a significant suicide attempt shortly thereafter.  You claimed that you had, and I accept this, significant depression at the time.  Insofar as the suicide attempts is concerned I do have the documentary support of that and what occurred was that on 27 September 2013 after a motor vehicle collision you were admitted to the psychiatric unit at the Alfred Hospital.  You were kept there for approximately a fortnight and were discharged on 28 October 2013.  That report seems to confirm the post-traumatic stress disorder and also, as they describe, co-morbid depression.  It also confirmed your alcoholism.

25Clearly this offending has occurred something in the order of six weeks after your release from the psychiatric unit.  You were living at your wife's house in circumstances I am not quite sure of.  Those matters all speak for themselves.  You gave a detailed history to Ms Matthews and I will refer to that very briefly. 

26So far as Verdins is concerned on reflection I do take into account your psychological state at the time although it is very difficult to see how such a state other than disinhibition through alcohol use allows a person to act so grossly towards a defenceless child.  I do accept, however, that in custody you have had difficulty.  You have been in St Paul's and you really cannot adjust to it.  Accordingly custody is more difficult for you than it is for the normal prisoner.  I do not think that it would increase your psychological difficulties because obviously in that scenario you cannot drink.

27The history that you gave Ms Matthews was of marrying in 1983 and indeed I have heard from your wife, on oath, in this court room.  You have described around 1989 as having been involved in the war and acting subsequently as an interpreter for Bosnian refugees.  You claim that you were taken prisoner and held for something in the order of two years.  That you were tortured every day and that ultimately you suffered a fractured skull and other very serious wounds. 

28When your wife gave evidence on your behalf she seemed to not know very much about that.  She thought you had been away for about three months.  I am not going to buy into what all the circumstances are other than to simply say that I do accept that whatever you came to this country with it was not amenable to secure mental health.  Ms Matthews points out that a CT scan taken some eight weeks prior to the offending certainly does not support the injuries that you claim that you had received but, again, that does not aggravate the situation.

29Your, at times, reluctance to accept responsibility for these matters and your claim of lack of memory are of concern in the long term.  In the end the major concern here is to give adequate punishment and denunciation for this crime together with general deterrence and in your situation, clearly a need for specific deterrence.  How much they should be moderated is a moot point.  Specific deterrence in particular, I think, has to loom large in your circumstances.

30I had you assessed for a community corrections order and you have been found suitable.  That community corrections order has a number of concerns outlined within it.  As I indicated at the time I wanted to do that so you would have to go through the Sex Offender's program.  Because of what is contained within the medical reports that I have and because that report is favourable to you, I do intend to impose such a disposition.  It will, of course, be with conviction, it will be over a period of two years.

31The concern insofar as a serious sexual offender is concerned is for the protection of the community.  I do not see that giving you a straight sentence then simply release you would offer protection to anybody.  I think that all I can really do is impose a community corrections order that your mental health can, over a period of time at least, be assessed accurately and not on the ad hoc basis it seems to have been in the past.

32You will be required under this order, if you agree to do it, to participate in the Sex Offender's Program as directed.  What must be clearly understood at this point in time is that if you do not enter or successfully complete, through your own volition, that sex offending program you will be breached on this community corrections order and you will be brought back before me.  You will be gaoled again.  I make no bones about that.

33The prospects of your rehabilitation have got to be guarded and the risk of your re-offending as has been described by Ms Matthews as moderate to high but in a difficult sentencing scenario I think this is about the best I can do.

34Accordingly in all the circumstances on Charge 1, six months.  On Charge 2, three months.  On Charge 3, six months and on Charge 4, six months.  I do not intend to impose a custodial sentence on Charge 5.

35I direct that one month of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1. 

36I am obviously restricted greatly by the fact that this offending occurred in a relatively short period of time and I am well aware of the authorities about concurrency.  That gives a head sentence of nine months. 

37If you agree I direct that upon your release from custody you enter into a community corrections order, as I have indicated, for a period of two years with conviction with the conditions that you be assessed for mental health and that you do offending behaviour programs in particular the Sex Offender's Program.  The reason I have made it two years as it was requested by Community Corrections.  It gives time for that program to be completed.  I simply say that I have told you clearly what is going to happen if you do not do it and it will then be a matter for you.

38All right, can you take that down for him to sign.  All that is signed.  That having been signed I direct that 122 days be reckoned as having been served under this sentence.  I direct that this sentence be served concurrently with any other sentence currently being undergone. 

39I do not propose to do a s.6AAA because of the CCO.  If it is breached, in that situation I am not being held to an arbitrary figure that will be imposed now.  I do not think I am obliged to by law anyway.  All right no other orders that need to be made, gentlemen?

40MR BATTEN:  No, Your Honour.

41HIS HONOUR:  I'll just stand down.

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