Director of Public Prosecutions v Mindelis
[2023] VCC 175
•10 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02286
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DMITRO MINDELIS |
---
JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2023 |
DATE OF SENTENCE: | 10 February 2023 |
CASE MAY BE CITED AS: | DPP v Mindelis |
MEDIUM NEUTRAL CITATION: | [2023] VCC 175 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Prohibited person in possession of a firearm - committing an indictable offence whilst on bail - moral culpability - early plea of guilty - impact of covid-19 pandemic - delay - onerous bail conditions - fair prospects of rehabilitation - general deterrence - denunciation.
Legislation Cited: Firearms Act 1996; Bail Act 1977; Criminal Procedure Act 2009; Sentencing Act 1991.
Cases Cited:Berichon v The Queen [2013] VSCA 319; Bugmy v The Queen (2013) 249 CLR 571; Worboyes v The Queen [2021] VSCA 169; Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260; DPP v WRJ [2009] VSCA 174.
Sentence: Total effective sentence of six months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Solicitor for the Office of Public Prosecutions |
For the Accused | Dr M. Gumbleton with Mr A. Chernok | Milides Lawyers |
HIS HONOUR:
Introduction
1Dmitro Mindelis, you have pleaded guilty to one charge of prohibited person in possession of a firearm.[1] The maximum penalty for this charge is 10 years' imprisonment or 1,200 penalty units.
[1] Contrary to s5 Firearms Act 1996.
2Pursuant to ss 145 and 242 Criminal Procedure Act 2009, you have also pleaded guilty to related Summary Charge 6, committing an indictable offence whilst on bail.[2] The maximum penalty for this summary charge is three months' imprisonment or 30 penalty units.
[2] Contrary to s30B Bail Act 1977.
Summary of Offending
3The summary of prosecution opening was tendered at the plea and is an unchallenged factual basis upon which you are to be sentenced.[3] Your offending can be summarised in short compass as follows.
[3] Prosecution Exhibit 1.
4You were sentenced to a term of imprisonment for aggravated burglary in 2014 and as a result you became a 'prohibited person' pursuant to s3(1)(a)(v) of the Firearms Act 1996 for a period which included the time of this offending. You did not hold a licence to possess a general category handgun.
5On 18 September 2019 at 1.18 pm, a phone call was made from a number belonging to you to Mr Sheehy, a person known to you. This call was not answered. At 1.19 pm, a further phone call was made to Mr Sheehy which was answered and lasted for 1 minute and 42 seconds.
6At 1.45 pm, Mr Sheehy's car arrived at a petrol station in Carnegie. CCTV footage depicts Mr Sheehy buying two bottles of sports drink, a packet of cloths and a red plastic fuel container. Mr Sheehy is depicted filling the red plastic container with fuel from the bowser and paying for the purchase.
7At 2.01 pm, dash camera footage captured a Land Rover wagon travelling on Neerim Road and parking west of the Neerim Road apartment complex. The Land Rover was registered to an associate of yours, Mr Zeldis. Further dashcam footage shows a group of males loitering near the car, Mr Zeldis entering and driving the car to Carnegie, and then approximately 1 minute later Mr Zeldis walking to join a group standing outside a tattoo parlour located on Neerim Road in Carnegie.
8Two further calls were made at 2.03 pm and 2.10 pm to Mr Sheehy's mobile, which were not answered.
9You, Mr Zeldis and another unknown male remained outside the tattoo studio. At approximately 2.12 pm, Mr Sheehy's vehicle is recorded on dash camera footage turning into a laneway just east of the Neerim Road apartment complex. Witnesses observed Mr Sheehy walking towards the apartment complex carrying one of the bottles he had purchased from the service station with a white cloth coming out of it. The bottle was described as a 'Molotov cocktail'. A verbal exchange occurred between you and Mr Sheehy.
10You were recorded on video walking towards Mr Sheehy, positioning yourself behind a pillar located outside of the entrance to the Neerim Road apartment complex.
11You removed a small silver handgun from your front jacket pocket with your right hand. This is the conduct constituting Charge 1.
12You raised the firearm at Mr Sheehy and discharged one round from the firearm. This round ultimately struck Mr Sheehy in his abdomen.
13Mr Zeldis and the other unknown male ran across Neerim Road whilst you turned and walked west towards a black Mercedes-Benz which was captured on dash camera footage arriving just prior to the shooting occurring.
14Shortly after the shot was fired, Mr Sheehy threw the bottle he had been holding. The cloth which had been in the bottle was on fire when the bottle was thrown. The bottle can be seen moving across the screen in the CCTV footage. A further item, which appears to be a lighter, can also be seen moving across the screen in the CCTV footage at around the same time.
15Mr Sheehy walked forward, collecting the lighter from the ground outside the entrance of the Neerim Road apartment complex and returned to his car.
16The Molotov cocktail failed to ignite and rolled underneath a parked vehicle with it smouldering in the gutter.
17Witnesses state that during this time, Ms Turner, Mr Sheehy's partner, exited Mr Sheehy's vehicle and yelled profanities at you as he walked away.
18At approximately 2.13 pm, you entered the black Mercedes and drove away. Mr Zeldis took off on foot in the direction of his Land Rover.
19Counsel did not seek to tender any footage, and as such, I have not viewed any recordings.
20You were on bail at the time, and I have just been told that that related to charges of possession of drugs of dependence. This is the conduct constituting Summary Charge 6.
21On 28 September 2019, you were arrested in Mount Gambier, South Australia. On 30 September 2019, an extradition order was granted by the Mount Gambier Magistrates' Court, and you were conveyed to appear at the Melbourne Magistrates' Court on 1 October 2019.
Nature and Gravity of Offending
22The offence of prohibited person possess a firearm is a serious offence, as evidenced by the maximum penalty imposed by Parliament of 10 years' imprisonment or 1,200 penalty units. There are some features of this offending which are unusual and which affect the assessment of your moral culpability.
23With regards to the offence of prohibited person in possession of a firearm, I note the observations of Redlich JA in the case of Berichon[4] that the offence can be divided into one of two broad categories:
The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose. More severe sentences are then usually in order. Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with the circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity. [5]
[4] Berichon v The Queen [2013] VSCA 319, ('Berichon').
[5] Berichon, [26].
24Where your possession of the gun was for self-defence from an imminent attack, it is not open to conclude that it was associated with some ongoing criminal activity. You, therefore, fall into the first category identified in Berichon.
25The plea to this charge involves an acceptance that your possession of the handgun was fleeting up until it was used in lawful self-defence. Therefore, your possession of it for the purposes of grounding this charge spanned the seconds it took between receiving it and the crystallisation of the threat posed by Mr Sheehy and his Molotov cocktail to the point where the use of the firearm on him was justified.
26Dr Gumbleton, who appears with Mr Chernok on your behalf, asserts that due to these unusual features, your moral culpability is to be assessed as low. He relies on the threat posed by Mr Sheehy to a number of innocent bystanders and Mr Sheehy's threatening behaviour towards you and other members of your group as factors which reduce your blameworthiness.
27It needs to be borne in mind that your plea to the charge involves an acceptance by you that your possession of the firearm up until the time you discharged it was unlawful notwithstanding Mr Sheehy's threatening conduct up until he brandished the Molotov cocktail, but this conduct explains your initial possession of it.
28Mr Nibbs, who appeared to prosecute, asserts that the public policy underpinning the charge is the protection of the community from a class of person Parliament has determined should not, as a consequence of their prior criminal offending, be permitted access to firearms. Again, your unlawful possession of the firearm spanned an extremely brief period.
29However fleeting the time, when you decided to possess the firearm, you were not justified in possessing it, and you must have known that you had been prohibited in 2014 from possessing firearms as a consequence of serious criminal offending which attracted a substantial gaol term. When you received the handgun, you knew or believed that it was loaded because very shortly after receiving it, you shot Mr Sheehy.
30The issue of your moral culpability is therefore complicated by your subsequent lawful use of the handgun. As your offending falls within the first category defined by Redlich JA in Berichon and because it was only used in lawful self-defence, I am prepared to find that your moral culpability is lower than mid-range.
31The court was not told which of your associates passed you the gun or why he was armed with a loaded firearm, but it was submitted by Dr Gumbleton that one of your associates handed you the handgun in response to Mr Sheehy's threatening overtures towards you, and that immediately after shooting Mr Sheehy, you returned the gun to the man who had given it to you. In discussions with Mr Nibbs, the prosecutor, this morning, he does not quibble with Dr Gumbleton's assertions that the handgun was handed to you by an associate.
Personal Circumstances of the Offender
32You were 39 at the time of the offending and are 42 at sentence.
33You have admitted a serious criminal history dating back to 1998 and spanning 19 pages. However, I note that you have no relevant prior convictions for possession or use of a firearm and no history of committing indictable offences whilst on bail.
34
A report and letters of Lisa Jackson, psychologist, were tendered as part of your plea.[6] In her report, Ms Jackson states that you were born in the Ukraine and had a difficult childhood. Your father left the family at a young age to form another relationship, resulting in five half-siblings. Contact with your
half-siblings was irregular growing up, and you do not see any of your stepsiblings other than your younger half-sister, with whom you maintain a close relationship.
[6] Defence Exhibit A.
35Your mother was a troubled woman, and you reported to Ms Jackson that you experienced considerable family violence throughout your childhood as a way of your mother preparing you for 'a hard life'. Counsel on your behalf did not make any submission that the principles in Bugmy were engaged.[7]
[7] Bugmy v The Queen (2013) 249 CLR 571.
36Whilst your mother worked, you were looked after by your grandparents, who you describe as being equally troubled. The effects of this abuse were compounded by the community you lived in where poverty resulted in community members routinely fighting over food or fuel. You report that as a result of this upbringing, you were a 'troubled child', who was anxious and attention seeking, resulting in disruptive behaviour.
37You emigrated to Australia at the age of 15 with your father and three of your half-siblings, moving into the St Kilda area. You had difficulty with the transition into Australian life, having limited English skills and struggling to assimilate into the new culture. As a result, you report feeling alienated, which you say resulted in disruptive behaviour, subsequent abuse problems and related offending.
38You completed your schooling to Year 11 at Elwood Secondary College. You reported that you completed qualifications as a painter and decorator.
39At the age of 20, you married a Russian/Australian woman and had a son to whom you remain close. This marriage ended after seven years due to a combination of prolonged substance abuse and frequent incarcerations. You had another 10-year relationship, which you indicate ended for the same reasons as your first marriage. Over the last four years, you have been in a relationship with your current partner. Dr Gumbleton indicated that you have a very close relationship with your partner's children and that you have assumed the role of their father.
40You reported that you have owned two tattoo shops, which have now closed. You maintain a cleaning business, which your partner manages.
41You reported a history of polysubstance abuse including alcohol, methamphetamine and heroin. You were introduced to heroin when aged 14 and quickly became dependent on intravenous heroin consumption, consuming at most 2 grams per day. You report that you ceased heroin use in 2013. You also report ceasing binge drinking after your immigration to Australia. You report cessation of amphetamines and methamphetamines in 2014 after suffering a cardiac arrest. A number of negative urine screens were tendered, and your abstinence is to be encouraged.[8]
[8] Defence Exhibit E.
Mental Health
42
The report and letters of Lisa Jackson were tendered on your plea.[9] She assessed you by telephone at Barwon Prison on 25 March 2020. You reported to Ms Jackson that you have previously been diagnosed with
post-traumatic stress disorder, adjustment disorder and depression.
[9] Defence Exhibit A.
43Ms Jackson observed that clinical assessments showed fair mental health as per the psychological health status scale, current severe symptoms of anxiety/depression on the K10 screen and moderate risk/needs on the LSI-R screen although this result could be improved with appropriate treatment support.
44She observed that you showed good compliance in participating in a residential program in 2019 to reduce relapse risks and that you demonstrated abstinence from illicit drug use by returning clean urine screens.
45On 1 February 2023, Ms Jackson provided a treatment progress letter in which she noted that your progress during bail had been very satisfactory and that you had participated in 17 counselling sessions with her between 2020 and 2021. Those sessions addressed psychosocial support, relapse prevention strategies, mood regulation techniques, parenting skills and the identification of offending triggers.
46A neuropsychological report of Jane Lofthouse was also tendered.[10] She assessed you on 22 April 2020. Ms Lofthouse opines you have a mild level of executive dysfunction; however, most of your scores fell in the average range. On testing, she identified marked psychological symptoms which at times will deteriorate during added periods of stress such as undergoing incarceration.
[10] Defence Exhibit B.
47A report from the Alfred Hospital dated 26 November 2020 was tendered, outlining your cardiac arrest in 2014. Your cardiologist, Dr Lisa Lefkovits, provided a report setting out your treatment since the date of your heart attack in 2014. Dr Lefkovits observes that upon being released to bail on 22 May 2020, you have been feeling generally unwell, and in her opinion, you require a stress echocardiogram to explore whether there is any evidence of new ischemia.
Plea of Guilty and Remorse
48
I accept that your plea was entered at the earliest opportunity. Your plea has substantial utilitarian value given that it saved the time and expense of running a trial. Your plea of guilty carries greater weight given it has been entered during a time in which the court is still experiencing the effects of the
COVID-19 pandemic.[11] The resolution of your matter assists the court in reducing the current backlog of matters.
[11] Worboyes v The Queen [2021] VSCA 169, [39].
49Your plea of guilty is also demonstrative of some remorse.
50Ms Lofthouse noted that you expressed responsibility and remorse for your offending behaviour. She also noted that you expressed a desire to address the pattern of your criminal offending and to limit the possibility of you returning to prison.
Delay
51You were arraigned and pleaded guilty on 30 January 2023, the date on which you were to face trial on a separate indictment that has now been discontinued by the prosecution. I do not take the discontinued charges into account in sentencing you except to the extent that your use of the gun informs your earlier unlawful possession of it.
52I am told that your solicitors engaged in attempts to resolve your matter, but the Crown's refusal to discontinue the intentional cause serious injury charge and its alternative prevented any fruitful settlement negotiations until very shortly before your trial was due to commence.
53Delay has a part to play in moderating the sentence I impose. Delay between the apprehension of an offender and the resolution of a matter is a factor that will mitigate sentence,[12] provided that the delay is not attributable to the offender.[13]
[12] See, e.g., Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260.
[13] DPP v WRJ [2009] VSCA 174.
54There has been a significant delay between the offending in September 2019 and the resolution of your matter in January 2023. A combination of factors has contributed to this delay, including the suspension of jury trials as a result of the COVID-19 pandemic. Almost three and a half years have passed since the time of the offending with this matter 'hanging over' you. The delay is not your fault, and you have used this time to advance your rehabilitation. You deserve a reduction in your sentence to acknowledge the delay in this matter.
55The prosecution accepts that you are not responsible for this delay. You were taken into custody on 1 October 2019, and you were released to bail on 22 May 2020. It was acknowledged by the prosecutor that your path to early resolution was frustrated by the prosecution's commitment, until January this year, that any resolution required a plea of guilty to the discontinued charge of intentional cause serious injury.
56The delay in your case has been exceptional and oppressive. I also accept that in train with the delay, the conditions attached to your grant of bail were unusually restrictive, and the impact upon you of the delay between being charged and having your matters resolved is further exacerbated here by the restrictions you underwent in custody and the restrictions to which you were subject whilst in the community.
Impact of COVID-19
57You have spent 235 days on remand between 28 September 2019 and 8 May 2020. The latter part of this period in custody occurred in a prison environment that has been subject to additional deprivations of liberty as a result of the pandemic. These have included restrictions on in-person visits, limited availability of courses, suspension of time in the yard and a lack of access to any psychologists or counsellors. This has made that portion of your period in custody more onerous than it would otherwise have been, and I take that into account as a matter of mitigation.
Bail Conditions
58You have been on bail for approximately two years and eight months with strict conditions[14] including:
[14] Defence Exhibit D.
(a)daily reporting;
(b)a static residence;
(c)possession of only one mobile telephone;
(d)a surety in the sum of $200,000;
(e)an injunction against the use of drugs of dependence;
(f)an obligation to abide by a curfews from 7 pm to 7 am;
(g)to present at the door of your residence at the request of police at any time during curfew periods;
(h)an obligation to provide urine samples for the detection of illicit drugs;
(i)an obligation to participate in counselling with a psychologist;
(j)an injunction against contacting any co-accused;
(k)an obligation to surrender your passport;
(l)an injunction against attending any point of international departure; and
(m)a prohibition against leaving Victoria.
59You have also been subject to constant electronic monitoring by way of GPS ankle bracelet with geographical and curfew restrictions. As a consequence of this bail condition, you have spent $68,363 excluding GST since activating the monitoring device.[15]
[15] Defence Exhibit G.
60I agree with the submission of Dr Gumbleton that the bail conditions imposed on you are extensive, onerous and restricted your liberty. You have been compliant with these restrictive conditions for a significant period of time until the ultimate resolution of your matter, which has included delay, as I have previously outlined. I take this into account as a matter of mitigation.
Prospects of Rehabilitation
61Dr Gumbleton submitted that you have reasonable prospects of rehabilitation. He did concede that you have some outstanding matters which takes some of the gloss off his characterisation of your rehabilitation as having been effectively completed in the period in which you have been subject to very stringent bail conditions. Nonetheless, he points to your substantial compliance on bail, your abstention from the consumption of illicit drugs and the voluntary work you performed with the Light of Hope foundation since September 2021 as factors that demonstrate the near completion of your rehabilitation.
62He pointed to your extensive family support, noting the presence of your partner in court, your laudable work history and the insight you have demonstrated to the mental health workers who have counselled you in the last two years as auguring well for your prospects.
63He highlighted your role as a father and the pleasure you derive from being involved in your children's lives as a protective factor that will motive positive change.
64He emphasised your stability in the community since release on bail as another indicator of positive change.
65He also relied on the observations in your character references of your capacity for reflection, charitable giving and wisdom as demonstrative of the distance you have put between your past mired in crime and your future of domestic docility.
66In a letter provided to the court from Ms Jackson dated 1 February 2023, your prospects of rehabilitation are spoken of positively. Ms Jackson notes that through your 17 mental health sessions with her subsequent to the 30 March 2020 report, both your treatment commitment and progress up until that point had been very satisfactory. You had remained abstinent from drugs, addressed a number of offending triggers and were continuing to receive some degree of parenting support. You advised Ms Jackson that since your last session with her, on the 14 July 2021, you had obtained stable work in the community and had been prioritising your parenting responsibilities to your children whilst maintaining a positive and supportive relationship with your partner.
67Ms Jackson concludes that you have demonstrated positive behavioural changes which suggested a very low risk of reoffending.
68Dr Gumbleton has provided two character references, which I have considered.[16] Your friend, Johnny Elliott, describes you as an 'honest, trustworthy and responsible individual', and that you possess a 'strong sense of responsibility towards family, friends and community'. According to Mr Elliot, you have made 'significant progress' in your rehabilitation as a result of your 'vulnerability and honesty with [yourself]', and he is confident you will continue to 'uphold the values of responsibility and integrity' upon release. Your uncle, Mr Mikhail Kesser, speaks highly of your work ethic, considering you a role model for other employees within Hebron Developments Pty Ltd where you both have worked. Mr Kesser also notes that your 'work ethic and strong morals' persist 'in the face of any adversity', and speaks to your 'sincere, consistent dedication to personal growth and self-improvement'. Through these references, I understand both authors are confident in your ability to rehabilitate yourself from prior offending.
[16]
69I also note the relevance of your work as a parent. Your counsel submitted that you have been in a relationship with your current partner for over four years. During this time, it was submitted that you have become akin to a father figure to her children. In her letter dated 1 February 2023, Ms Jackson notes that you had prioritised your parenting responsibilities 'to your children', and Mr Elliot states in his letter that he would trust you with the care of his own son. In a similar vein, a letter from Ms Anastasiya Podvysotska of the Light of Hope Foundation dated 30 January 2023, tended on your plea,[17] notes that you are passionate about helping younger people, and a number of participants of the foundation had become highly reliant on you.
[17] Defence Exhibit C.
70I find your prospects of rehabilitation are fair given the extent to which you have attended to your rehabilitation whilst on bail.
Submissions on Sentence
71Dr Gumbleton with Mr Chernok submitted that due to the exceptional circumstances of this case, a financial penalty would be appropriate. In support of this submission, Dr Gumbleton relied on the circumstances, nature and gravity of your offending, your prospects of rehabilitation, the principles of proportionality and parsimony and your plea of guilty together with the inordinate delay.
72Dr Gumbleton submitted that but for the charge of intentional cause serious injury having been laid, you would have been dealt with in the Magistrates' Court. Had you been dealt with in the Magistrates' Court, the argument runs, you would have been fined.
73I can only sentence you on the basis that the charge to which you pleaded was referred from the Magistrates' Court to this court, and in this court, the charge of prohibited person in possession of a firearm carries a maximum penalty of 10 years' gaol.
74
I have also had regard to current sentencing practices as illustrated by the Sentencing Advisory Council statistics for the offence of prohibited person possess firearm, which demonstrates that in the period 2016-2017 to
2020-2021, a term of imprisonment was imposed in each of the 34 cases dealt with in the higher courts.
75Of course, the manner in which this charge is committed varies greatly, as do matters personal to each individual offender and the matters relied on in mitigation which effect the sentencing discretion. Your case is unusual.
76Mr Nibbs submitted that a combined gaol term with a community corrections order would be within range. He conceded that your unlawful possession of the handgun was fleeting. He conceded that your plea of guilty was entered at an early stage, and he accepted that but for the intentional cause serious injury charge being laid, you may well have had this charge dealt with in the Magistrates' Court.
77Mr Nibbs maintained nonetheless that for a period sufficient to ground the charge you were in possession of a loaded handgun, knowing you were prohibited from possessing one, and he underscored the powerful public policy considerations underpinning Parliament's decision to make it a crime for a class of person with serious criminal histories to access or possess such weapons.
Sentencing Principles
78I need to have regard to the sentencing principles in s 5 of the Sentencing Act 1991.
79In particular, general deterrence is an important sentencing consideration here. People expressly prohibited by court order from possessing firearms need to be dissuaded from resorting to them even where their ultimate deployment is justified or excused at law.
80I also need to denounce your conduct in unlawfully resorting to a loaded handgun even though that denunciation calls to be tempered by the acknowledgement that your ultimate use of it was not unlawful.
81I also need to establish conditions that facilitate your rehabilitation, noting that your rehabilitation has advanced significantly in the three years since you were first charged.
Sentence
82Mr Mindelis, I will ask you to stand now. Dmitro Mindelis, you are sentenced as follows:
83On Charge 1, prohibited person possess a firearm, you are convicted and sentenced to six months' imprisonment.
84On Summary Charge 6, commit indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment to be served wholly concurrently with the sentence imposed on Charge 1.
85Pursuant to s 18(4) Sentencing Act 1991, I declare that you have spent six months in custody, to be reckoned as served.
86
Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of 14 months' imprisonment with a
non-parole period of nine.
87Are there any ancillary orders?
88MR NIBBS: No, Your Honour.
89HIS HONOUR: Anything arising?
90DR GUMBLETON: No, there is not.
91HIS HONOUR: Very well.
‑ ‑ ‑
0
7
0