Director of Public Prosecutions v Muratovski

[2020] VCC 235

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19 00355

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAFET MURATOVSKI

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 February 2020
CASE MAY BE CITED AS:	DPP v Muratovski
MEDIUM NEUTRAL CITATION:	[2020] VCC 235

REASONS FOR SENTENCE
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Subject: robbery – burglary – thefts of motor car – thefts of petrol
Catchwords: guilty plea – homeless at time of offending – mental health (PTSD) and drug and alcohol issues related to institutional child abuse
Legislation Cited:
Cases Cited:
Sentence: – 9 months imprisonment and community correction order for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr M. Habib

1HIS HONOUR:  Safet Muratovski, you have pleaded guilty to 12 counts of theft, one count of attempted theft, one count of robbery, and two counts of burglary.

2You have also pleaded guilty to four summary offences, namely, two counts of driving whilst disqualified and two counts of failing to answer bail. 

3The circumstances of your offending are set out in the prosecution opening dated 6 February 2020.  They are agreed facts.

4In 2015, you met Angela Day.  You had regular contact with her and, while you were in prison, she sent you letters and money. She continued to send you letters and money after you had completed your term of imprisonment.  In October 2017, she stopped contact with you.  In March 2018, you began contacting her by text and phone asking her for money.  On 2 March 2018, she agreed to put $150 into your bank account. 

5Next day, on 3 March 2018, you went to her home.  While you were there, you threw her on the bed, pushed her down and put your hand over her nose and mouth so she could not breathe, and you demanded, 'Where is the money?  Don't scream'.  You took $400 from her pocket and then hit her to the left side of her nose with your fist and left. That conduct constitutes Charge 1, robbery.

6In March 2018, you committed a number of thefts and a burglary. 

7On 6 March 2018, at Doveton, you drove a black Holden Commodore into the Woolworths petrol station and stole $54 worth of unleaded petrol.  That is Charge 2, theft. 

8On 7 March 2018, at Lakes Entrance, you drove the same car into an United petrol station and stole $76.67 worth of unleaded petrol.  That is Charge 3, theft.

9On 9 March 2018, at Longwarry, you drove a car into the Caltex service station and stole $33.60 worth of unleaded petrol.  That is charge 4, theft. 

10On 23 March 2018, at Launching Place, you drove into a Caltex service station and stole $88 worth of unleaded petrol.  That is Charge 5, theft.

11On 24 March 2018 you drove to a caravan park at Lakes Entrance.  You unlawfully entered a caravan and stole a jewellery box containing personal papers and a wallet, and that conduct constitutes Charge 6, burglary and Charge 7, theft.  From there, you drove to a Lakes Entrance petrol station where you had stolen petrol on 7 March.  The station attendant recognised you and asked you for payment.  You told him you would pay and gave him $4.  When you tried to leave, he took the key from the car you were driving and told you he would call the police.  You ran off.  He called the police, who attended and searched your car.  The jewellery box with its contents you had previously stolen from the caravan was in the car.

12On 25 March 2018, you visited a friend.  You were at his house for the day and, when you left, you took his car keys and stole his car.  That is Charge 8, theft.

13On 26 March 2018 at Mickleham, you filled your friend's car with $21.78 worth of petrol and drove off without paying for it.  That is Charge 9, theft. 

14And overnight, between 26 and 27 March 2018, at Neerim East, you unsuccessfully attempted to steal a car that was fitted with an alcohol interlock device so that you were unable to start the car.  You removed the device from the glove box and took it with you, and that conduct constitutes Charge 11, attempted theft, and Charge 12, theft. 

15On the same night at Neerim East, you entered a farm shed intending to steal property, and that conduct constitutes Charge 10, burglary.  From the shed, you stole a Suzuki quad bike and rode it to Neerim South, and that conduct constitutes Charge 13, theft.

16Police arrested you on 28 March 2018.  At interview, you denied driving the car, which you had filled with the stolen petrol and driven when you got into the caravan and stole the jewellery box.  You denied going to the caravan park on 24 March and said you were probably somewhere else, and you denied knowledge of the theft of your friend's car. 

17On 25 March 2019, you failed to attend court to answer your bail.  That is Summary Charge 8. 

18On 10 April 2019, you again failed to attend court to answer your bail.  That is Summary Charge 9. 

19On 9 October 2019, at Officer, you drove a Lexus motorcar into the BP service station and stole $28 worth of unleaded petrol.  That is Charge 14, theft.  At the same time, you were not licenced as your licence has been cancelled on 10 November 2009 for 10 years.  That driving is Summary Charge 5, driving whilst disqualified. 

20On 11 October 2019, again at Officer, you drove the Lexus into the same BP service station and stole $35 worth of unleaded petrol.  That is Charge 15, theft.

21And on 19 October 2019 at Longwarry, you drove the same Lexus into the Caltex service station and stole $69 worth of unleaded petrol.  That is charge 16, theft.  When you drove the car to the petrol station, you were a disqualified driver, and that driving constitutes Summary Charge 7, driving whilst disqualified.

22Police arrested you on 23 October 2019. 

23In all, you robbed Angela May of $400 in cash, and you stole petrol, on eight occasions, worth $406.05, you stole a jewellery box from a caravan, you stole your friend's car, and you also stole an interlock device after you attempted to steal a car, and you entered a farm shed with intent to steal, and stole a Suzuki quad bike from it. You also failed to attend court to answer your bail on two occasions, and you drove a motor car on two occasions whilst you were a disqualified driver. 

24You have admitted a criminal history of summary of convictions for assault, family violence, damaging property, possession of cannabis and driving offences.  You have served terms of imprisonment for driving offences and, in February 2016, for assault and damaging property, you served two months imprisonment, and, in March 2016, for intentionally causing injury, seven months imprisonment.  In 2015, in September and November, you were placed on community corrections orders.  In 2016, you breached both orders by re-offending. 

25You have no prior history of dishonesty offending.

26Your personal circumstances are set out in the report dated 28 May 2018 of Dr Aaron Cunningham, forensic psychologist.  You were born on 5 March 1976. You were 42 when he spoke to you.  You are now aged 43 years.  You have two younger brothers and a younger sister.  Your father was a violent alcoholic, and, when you were nine years old, you with your siblings were placed in foster care at Baltara Reception Centre, which held boys under the age of 14 who were either awaiting court appearances, if they had been charged with criminal offences, or, if they had not, placement in foster homes.  There, workers physically and sexually abused you.  When you were 11, you went home to your mother, who died suddenly from a heart attack.  You were then taken to Allambie Reception Centre, a home for children in need of protection.  From there, you lived with several different foster families you described as evil before living with a couple who you saw as good people. 

27You have limited education.  After primary school, you went to a special school for children with learning disabilities.  In Dr Cunningham's opinion, your answers to his questioning indicated you may have an intellectual impairment.  When you left school, you worked as a fitter and turner for 10 years.  You had a partner, Alison, and you were with her for 15 years and had three children, two girls now aged 18 and 14, and a boy aged 17.  In your words, their mother is a “keeper”.  Your relationship broke down when you abused alcohol and would disappear into the bush for weeks.  You have not seen your children for four to five years.

28In 2010, you moved to Lakes Entrance, where you lived for nearly two years.  You had times of homelessness and, when you offended, you were living in the back of the car, as you described it, drinking yourself to death. 

29You have used cannabis for 25 years and used methylamphetamine for several years since 2012. 

30You told Dr Cunningham you suffer panic attacks and nightmares from your past sexual and violent abuse.  Unsurprisingly, he diagnosed you with post-traumatic stress disorder.  Your abuse of alcohol, which has compromised stability in your relationships, accommodation and employment was modelled by your father from an early age.  In Dr Cunningham's opinion, your alcohol abuse and homelessness were the main contributors to your offending.  He stated you need both psychological and drug and alcohol counselling.  He also recommended you be assessed for disability services.  In his view, the prison environment will likely aggravate your PTSD symptoms. 

31In that behalf, I note on 11 December 2019, the day before your plea hearing at Bairnsdale, you were on suicide watch at the Melbourne Assessment Prison, and Dr Douglas Bell, a highly experienced and highly regarded forensic psychiatrist, considered you too unwell to attend court.  You nevertheless appeared on 12 December when your counsel, Mr Habib, told me you were able to provide him with instructions and you wished your hearing to proceed.  You pleaded guilty to one count of burglary and seven counts of theft, which constituted your offending in March 2018. 

32In written and oral submissions, Mr Habib relied on the following factors in mitigation of penalty:  your guilty plea, made when a more serious arson charge was discontinued, for its utilitarian value and remorse; delay, partly but not wholly attributable to you; that you have no prior history of dishonesty offending; your disadvantaged background; your homelessness when you offended, you told me you were living in a tent and, at times, sleeping in the car, and your mental health which had deteriorated in the prison environment.  He submitted Verdins principles 5 and 6 were enlivened.

33When you appeared in the court, at Bairnsdale, you had then spent nearly 300 days in custody by way of pre-sentence detention.  After you were remanded in custody on 28 March 2018, you spent 246 days at Port Phillip Prison until 29 November 2018, when you were granted bail.  On 23 November 2019, you were arrested for other offending, for thefts of petrol and similar offences, and remanded in custody.  Those charges, with other theft charges laid against you when you were arrested on 28 March 2018, were listed for hearing at Bairnsdale Magistrates' Court on 11 February 2020.

34Mr Habib submitted I should sentence you in respect of the offences then before the court to a term of imprisonment equivalent to the time you had served in custody. 

35Mr O'Doherty, who then appeared for the prosecution, helpfully suggested I obtain a Forensicare report to try to address the unanswered question raised by Mr Cunningham, that is, whether you suffer a metal impairment, before proceeding to sentence you.  Accordingly, I ordered a pre-sentence report. 

36In his report, Dr Fingensi stated there were no clear indicators of whether you suffered an intellectual disability.  Significantly, he stated that this did not mean that you do not have an intellectual impairment, but, if you do, it was not clearly observable through the interview process.  He noted you might have an intellectual impairment as a result of damage to specific areas of your brain, as you have reported receiving multiple serious head injuries resulting in unconsciousness throughout your life, and you have a prolonged history of substance abuse.

37He stated that a comprehensive neuropsychological assessment would provide a more accurate indication in relation to the question of whether you suffer a mental impairment.  Additionally, he described you as exhibiting paranoia and auditory hallucinations; although you meet several criteria related to schizotypal personality disorder, you could not be diagnosed as such.  He did note that you currently meet the criteria for diagnosis for major depressive disorder with mood congruent psychotic features and PTSD.

38At paragraph 31 of his report he said,

39'Mr Muratovski meets criteria for a diagnosis of major depressive disorder with mood congruent psychotic features and post-traumatic stress disorder caused by repeated exposure to sexual abuse during childhood with delayed expression.  It appears that Mr Muratovski's offending was significantly related to his mental state in response to his mental illness.  He was predisposed to being easily angered and was disordered at the time due to his serious substance use and desire to socially isolate himself as avoidant coping strategies'. 

40I accept his opinions, as I accept also Dr Cunningham's opinions.

41Your PTSD symptoms flared up significantly when you first entered prison and you refused to leave your cell.  Over time, you responded well to the structure, predictability and safety of prison, and the access to mental health treatment, and your mood has improved.  In particular, antipsychotic medication, recently prescribed to you in prison, has settled your auditory hallucinations and paranoia.  In Dr Fingensi's opinion, overall prison would not weigh more heavily on you than a person without mental illness. 

42To reduce the risk of you reoffending, he recommended you participated in offence reduction programs, drug and alcohol counselling, and PTSD counselling, and that you engage with a general practitioner to manage your medication in the community.

43I heard further submissions on 30 January 2020.  Pleasingly, you had responded positively to treatment and you were relatively well.  Mr Habib told me you had work as a billet.  You appeared to be much improved since December 12. 

44The parties agreed to bring your outstanding magistrates Court charges before me so I would be in a position to sentence you for the totality of your offending. 

45You appeared again on 10 February 2020. On that day you pleaded guilty to additional charges and I heard further submissions from Mr Habib and Ms Guesdon, who appeared for the prosecution.  At that time Mr Habib informed me you had served a period of time in custody which would be an adequate punishment for all your offending, and that your prospects of rehabilitation would be best advanced by releasing you immediately on a community correction order to assist you to address your drug, alcohol and mental health issues. 

46Ms Guesdon acknowledged all charges against you, given the nature and circumstances of them, could have been properly determined by a magistrate.

47She submitted the robbery on Ms May was serious offending and that offence in combination with the numerous other dishonesty offences you had committed made general and specific deterrence important sentencing considerations, which warranted the imposition of a term of imprisonment with a non-parole period fixed. 

48To enable me to consider all sentencing options I had you assessed for a community corrections order and you have been found suitable. 

49You told the assessing officer you were heavily drug-affected when you offended.  You attributed your illicit drug use to your mental health issues.  You acknowledged that it was no excuse.  You said you have responded well to treatment in prison, and you are motivated to continue and complete that treatment.  You said you do not want to reoffend because it will mean that you will spend the rest of your life in and out of gaol. 

50The assessing officer supported the imposition of conditions to address your drug and alcohol and mental health issues, and also recommended participation in offence related programs. 

51I also received a letter from the mental health advice service co-ordinator at Melbourne Magistrates' Court [Exhibit 3].  In it, he informed me arrangements have been made for you to receive mental health case management from the Latrobe Mental Health Service if you are released today. 

52Overall, I am satisfied that all sentencing objectives, including just punishment and your rehabilitation, can be met by a sentence of imprisonment which allows for your immediate release, in combination with a community correction order, conditioned to help you address your personal problems and the risk of your reoffending. 

53Please stand, Mr Muratovski. 

54By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

55Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows. 

56On Charge 1, robbery, you are sentenced to six months' imprisonment.  On Charge 8, theft of your friend's motor car, you are sentenced to two months' imprisonment.  On Charge 11, attempted theft of a motor car, you are sentenced to two months' imprisonment.  On Charge 10, burglary of the shed, you are sentenced to three months' imprisonment, and on Charge 13, theft of the quad bike, you are sentenced to one months' imprisonment. 

57I direct one month of the sentence I have imposed on Charge 8, one month of the sentence I have imposed on Charge 11, and one month of the sentence I have imposed on Charge 10 be served cumulatively on the sentences I have imposed on Charge 1 and each other, so that your total effective sentence is nine months' imprisonment. 

58You have spent 367 days in custody until today. I declare you have served 9 months of your sentence by way of presentence detention, that is, you have completed your term of imprisonment and are eligible for release today. 

59On the remaining charges, Charges 2, 3, 4 and 5, which are thefts of petrol, Charge 6, burglary of the caravan, charge 7, theft of the jewellery box, Charge 9, theft of petrol, Charge 12, theft of the interlock device, Charges 14, 15 and 16, theft of petrol, and the summary charges, Charge 8, failing to answer bail, Charge 9, failing to answer bail, Charge 5, drive whilst disqualified and Charge 7, drive whilst disqualified, you are convicted and, if you consent, released on a community correction order for a period of 18 months.  The order will commence today. 

60In addition to the core conditions, it will contain the following special conditions.  Drug treatment and rehabilitation, alcohol treatment and rehabilitation, mental health treatment and rehabilitation, programs to reduce reoffending and supervision. 

61I declare but for your plea of guilty I would have imposed an aggregate sentence of two years' imprisonment and fixed a minimum non-parole release period of one year and three months. 

62By consent I make an order for the disposal of the Holden motor car and two police swab bags and I order that all licences and permits held by you under the Road Safety Act be cancelled, and you be disqualified for a period of two years from 28 March 2018. 

63Mr Muratovski, I will have that community correction order prepared. 

64HIS HONOUR:  Mr Muratovski, I'll have the order prepared and then I'll give Mr Habib the opportunity to discuss with you the conditions and the obligations and then, if you sign an acknowledgment that you understand the conditions, and that you're prepared to consent to the order, I'll make the order. 

65We'll have the order prepared. 

66HIS HONOUR:  I'll ask you, Mr Habib, to speak with Mr Muratovski about it. 

67MR HABIB:  Yes, Your Honour. 

68MR HABIB:  May I be excused from the Bar table?  

69HIS HONOUR:  Yes. 

70MR HABIB:  Mr Muratovski consents to that order and has signed it, Your Honour. 

71HIS HONOUR:  Thank you.  Mr Muratovski, having signed acknowledgement that you understand the effect and the conditions of the order and consent to it being made, I make the order.  It will be fairly demanding for you, there are a number of conditions that you need to comply with.  Of course, the core condition is that you not re-offend.  If you do, you'll be brought back before me and I'll have the task of resentencing you on this offending and also punishing you for breaching your community correction order. 

72So over the course of the last, what, nearly two months or more since I first saw you in December, I have observed you looking much better in court each time.  You do appear to be responding to treatment.  You've said you want to continue and complete that treatment, and I trust that it will be made available to you and that you will respond to it.  I had thought to impose a condition of judicial monitoring, but the order is quite intensive, so I haven't done that. 

73I wish you well, Mr Muratovski, and I hope that you can continue on your path to recovery and that you'll take advantage of the assistance that community corrections will offer you.   

74OFFENDER:  Thank you. 

75HIS HONOUR:  Remove Mr Muratovski, please, and adjourn the court until 12, is it? 

76TIPSTAFF:  Yes, Your Honour. 

77HIS HONOUR:  Thank you, counsel. 

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