Director of Public Prosecutions v Necovski, Tony
[2012] VCC 1580
•10 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02026
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY NECOVSKI |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2012, 10 October 2012 | |
DATE OF SENTENCE: | 10 October 2012 | |
CASE MAY BE CITED AS: | DPP v Necovski, Tony | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1580 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Y Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Ms K Wait | Michael J Gleeson & Associates |
HER HONOUR:
1 Tony Necovski, you have pleaded guilty before me to two charges of causing injury intentionally. The maximum penalty for that offence is 10 years imprisonment. You further pleaded guilty to one charge of damaging property which also carries a maximum penalty of 10 years imprisonment. You further pleaded guilty to one charge of theft which carries the same penalty.
2 The facts of this matter were opened by the prosecution and a summary of the opening was tendered as amended as Exhibit "A" on the plea. On the evening of the 6 January 2011, you entered the work premises of the two complainants in this matter, Mr Bill Varvatselis and his employee, Slaiman Wannous. At approximately 9.23 p.m. your co-accused, Paul Bergman, entered the premises via the unlocked front door followed by yourself, Michael Ilevski and unknown fourth man. What followed is captured on CCTV footage which was tendered as Exhibit “B” on the plea and played in the court room.
3 It displayed a prolonged, unprovoked physical attack by Mr Bergman in which you and the unknown man joined with enthusiasm. The assault lasted, as I understand it some 12 minutes during which you kept leaving the corner where Mr Bergman had trapped Mr Varvatselis and was subjecting him to a reign of blows and you returned to inflict further blows and kicks. Mr Varvatselis was at times standing and at times on the floor. He was shown no mercy in the prolonged, vicious and cowardly attack.
4 Not content with the physical damage you inflicted, you and your co-accused embarked on a course of destruction, which left the previously orderly boardroom in a state of devastation. Mr Wannous, who had backed away from the scene was also attacked by the unknown male when he tried to assist Mr Varvatselis and the footage shows you joining in this intervention and kicking and punching him repeatedly as he was on the ground.
5 During these assaults Mr Ilevski attempted to intervene and to stop further assaults on the two complainants. Mr Wannous was able to leave the boardroom. The unknown man followed him and stole from him cigarettes and a mobile phone. He then went and sat further up the road from the office on High Street and was further assaulted there by the same unknown man who had robbed him, and by yourself with a number of punches and kicks.
6 During the period of the assaults, you and the unnamed man threw items to the floor of the boardroom and the front reception area causing a hole in the wall of the boardroom, damaging furniture and fittings which were left overturned and damaged and strewn throughout those two areas.
7 Finally, before leaving the premises, you stole cash, a black bag, a laptop computer and mobile phones. The events depicted in the CCTV footage transformed an orderly office in which two men were working late into the evening into a sickening scene of violence and damage.
8 On the 11th January 2011, a search warrant was executed on your premises and a short-sleeved hooded white top was located in your bedroom which matched the one you were seen wearing in the CCTV footage. You were arrested on 11 January and made "no comment" answers when later interviewed by police on that day. You have made no bail application and have been in custody now for 638 days which is just in excess of 20 months.
9 Tendered as Exhibit "D" was a victim impact statement declared by Mr Varvatselis which testifies to the devastating effect your actions have had on him, leaving him depressed in the context of the financial, physical and emotional impact which has taken a toll on his wife and family as well as himself. He finds being a victim a frustrating and horrible position of powerlessness and writes that his life is ruined.
10 It is only to be hoped that he manages to overcome this experience. He further set out his financial expenses relating to the damage and I understand they are the subject of a claim in this court to be dealt with later which is in excess of $40,000. I take all those matters in his statement, in so far as they are relative to the sentence I am to impose into account and fortunately the physical injuries, though numerous, were not serious. However, this is an extremely serious example of the offence of intentionally causing injury.
11 You have a criminal history. You were first before the Melbourne Magistrates’ Court on the 10 August 2006 for multiple charges of intentional damage to property, unlawful assault, assault police and resist police. You received a community-based order with assessment and treatment conditions clearly aimed at addressing your offending and the causes of it.
12 On 19 December 2008, you were before the Heidelberg Magistrates’ Court again for failing to comply with that community-based order and you were given a wholly suspended sentence.
13 You have however made an effort since your arrest to address some of your issues. A bundle of certificates were handed to me which attest to your completion of a drug education program, a relapse prevention program and an asset maintenance certificate. I was also handed a number of negative urine tests and a letter from Mr Glen Douglas of the Port Phillip Prison kitchen who attests to your interest in your work as a kitchen billet, praises your efforts, conduct, punctuality and politeness in what is essentially a character reference for you relating to the term you have been in Port Phillip Prison. These documents were tendered to the court as Exhibit 1. I take all those matters into account and they bode well for your rehabilitation when you are eventually released.
14 Your personal circumstances are that you are now 26. It appears that your main problem is alcohol, which you have sought to address, not only by attending those courses but also by attending Alcoholics Anonymous meetings on a monthly basis while in custody. You left school at 16 and your employment has been as a labourer with various employers. You had a terrible experience of finding the body of your friend and employer who had hanged himself and it was this experience, it was submitted by counsel which led to excessive drinking and eventually to your offending.
15 On the night of this offending, it's to be noted that you were under the influence of alcohol and attended the premises of Mr Varvatselis with Mr Bergman, who was an older man, and it would appear had some grievance with Mr Varvatselis which the court was not made aware.
16 It was submitted on your behalf that there was no planning in this matter, however, it's clear from the CCTV footage that you all went there with a common purpose which was to assault Mr Varvatselis and that assault started immediately on your group entering the board room.
17 You were supported in court by your mother and sister and they are again here today. Your father had died when you were two and a half, but you have a supportive family and you will go to live with your mother on your release.
18 James Edward Deer, gave evidence that you had worked with him and he found you to be a good worker. He indicated he had a project in Underbool in the Victorian country and was prepared to offer you accommodation and employment to the end of this year. I note that he had driven from Mildura to give that evidence which would indicate that he does think well of you and those matters, as I say, bode well for your eventual rehabilitation. You are still a young man. You have a long way to go and it will be difficult when you are released and one can only hope that you do take advantage of what is on offer and you do make serious attempts to rehabilitate yourself and become a useful member of the community.
19 In sentencing you there are a number of other matters I take into account. Firstly, general deterrence. Others must be deterred from joining in the infliction of violence on other members of the community as you did on that night. I also have to take into account specific deterrence. You have a limited criminal history, although I note all your prior conviction also relates to assault matters, however, you are young and it is hoped that you, as I indicated before, will be able to be totally rehabilitated.
20 I am also required to denounce on behalf of the community your behaviour and I do so absolutely. Such wanton cowardly violence is repulsive to any civilised community. I am also required to impose just punishment in all the circumstances and that requires me to weigh up the matters that have been put before me in your favour against the obvious seriousness of this offending and also I take into account the submissions of counsel in relation to the sentence.
21 I have, of course, reached the only possible conclusion which is conceded by both your own counsel and the counsel for the Director of Public Prosecutions that a term of imprisonment is the only appropriate disposition. As far as the duration of that, it was urged on me that I should consider time served which is, I think, 20 months and it would be now something like 28 days so almost 21 months should be sufficient. Unfortunately, I cannot do that having considered all the matters and the nature of the events on the night of this attack which led to these charges. I don't think that that is sufficient.
22 So I am now going to ask you to stand and I will sentence you.
23 On Charge 1, you are convicted to sentenced to 18 months imprisonment.
24 On Charge 2 , you are convicted and sentenced to 10 months imprisonment and I order that six months of that sentence be served cumulatively on the 18 months.
25 In relation to Charge 3, which is the property offence, you are convicted and sentenced to 15 months imprisonment and I order that eight months of that sentence be served cumulatively on the other sentences and, finally, in relation to the theft you are convicted and sentenced to nine months and I order that four months of that be served cumulatively.
26 In my estimation, that is a total effective sentence of 36 months and I order that you serve 24 months before being eligible for parole. I declare the 638 days pre-sentence detention be deemed time served and I am also required to order that that be entered into the records of the court. I am also required to impose another order, which I understand is by consent, and that is that they are orders pursuant to s.464ZFB(1) of the Crimes Act and that is that the forensic sample and any related material obtained pursuant to order of the Magistrates’ Court be retained for placement on the database. Having considered the seriousness of the circumstances of your offence, I am satisfied that in all the circumstances the making of that order is justified. It is also not opposed and the granting of the order is in the public interest.
27 Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have sentenced you to four and a half years and ordered that you serve three years. .
28 MR HARDJADIBRATA: If Your Honour pleases, an application was made for a compensation order.
29 HER HONOUR: Yes.
30 MR HARDJADIBRATA: If I could apply to have that order - application adjourned to the 23 November as there is a mention of Mr Bergman on that date as well.
31 HER HONOUR: All right. So what I am going to do, Mr Necovski, is adjourn the application for compensation which will be against all of you, I would imagine, and I will adjourn that to the 23 November. So did you understand the effect of the sentence?
32 PRISONER: Yes.
33 HER HONOUR: I think you have approximately three months to serve so hopefully that will be the end of your associating with the sort of people you have been associating. Thank you.
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