Director of Public Prosecutions v Oscianko and Covic
[2012] VCC 1034
•2 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00601
CR-11-00600
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| NATALIE OSCIANKO STEVAN COVIC |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2012 | |
DATE OF SENTENCE: | 2 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Oscianko and Covic | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1034 | |
REASONS FOR SENTENCE
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Catchwords: Conspiracy to kidnap; each accused found guilty after trial; failed drug deal involving $200; planned over several hours; lesser role of accused Oscianko; prior convictions involving violence; previous opportunities for rehabilitation; “dead” time served by Oscianko; new motivation for rehabilitation on part of Oscianko justifying wholly suspended sentence; CCO for Covic combined with short prison sentence inadequate to meet specific and general deterrence; immediate custody only appropriate sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Piper | |
| For the Accused Oscianko For the Accused Covic | Ms C.L. Lynch Ms N. Nik |
HER HONOUR:
1 Natalia Oscianko and Stevan Covic have each been found guilty by a jury of one charge of conspiracy to kidnap.
2 The incident which gave rise to the charges commenced on the 10th September 2010. In an unrelated matter, police had been monitoring Mr Covic’s phone, and became aware of a plan to kidnap one Damien Cecchin.
3 The plan had emerged as the result of a failed drug deal. During the evening of 9th September, Cecchin offered to obtain some Demazin tablets for Ms Oscianko and she gave him $200 for the purchase. In the early hours of the 10th September they drove in separate cars to a location near the residence of Cecchin’s friend, who, according to him, was to supply the Demazin.
4 Cecchin failed to return with the Demazin, and subsequently failed to meet Ms Oscianko on several further occasions during the early hours of the morning as arranged, providing various excuses. As a result, he did not supply the Demazin, nor did he return the money to Ms Oscianko.
5 Later in the day Cecchin asked her if he could catch up after work, and she told him she had her house to herself, and asked if he wanted to come over. This was said in an attempt to lure Cecchin to a location, as part of a plan to kidnap him. Earlier Mr Covic had had conversations with Ms Oscianko and separately with several acquaintances, a Mr Mawas, a Ms Godinho-Flores, and an unknown man, as to this plan. He had arranged with Mawas for back‑up to be supplied for the kidnapping.
6 Instead of going to her house, Cecchin suggested meeting at a car wash. Eventually at 6.58 p.m. he agreed to go to her house and said he would, "Fix the $200." She replied, asking him to message her when he got to Northlands.
7 About half an hour later she asked him to go to Olympic Village and to pull into the carpark. She asked him what car he was in and who he was with, and relayed this information to Covic, who was to follow him. Cecchin told her to come to Bunnings car park, as he did not want to go into the Olympic Village carpark because it was too dark, and he knew he was being followed.
8 Ms Oscianko continued to be in mobile phone contact with Mr Covic, who was nearby in his car. She told him that Mr Cecchin was alone, and he cancelled the back-up. He parked near Bunnings, and walked into the carpark, where he approached Cecchin seated in his car, and knocked on the passenger side window. He later told Ms Oscianko that he had hoped the passenger door would be open and he could jump straight in. In fact, finding the door locked, he told Cecchin he was coming back with the boys. Cecchin drove away before Mr Covic could do anything.
9 The police intercepted Mr Covic as he was driving out of the carpark.
10 The events that occurred after the agreement was concluded were put to the jury during the trial as evidence which supported the charge of conspiracy. It would appear that the jury accepted that the conversations were evidence of an agreement to kidnap Cecchin, and that the subsequent actions of both accused that night supported the evidence. It was the emergence, through text messages and telephone calls, of the whole picture of the events, that enabled the plan to be understood.
11 The steps taken in an attempt at kidnapping Cecchin, following the agreement, were part of the essential narrative of the trial, but do not add to the basis upon which I shall sentence the accused. They should not be regarded as aggravating features, and they had not been the subject of a further charge of attempted kidnapping, and so should not be taken into account in sentencing.
12 However, it was submitted by Mr Tyrell, who appeared on behalf of Mr Covic, that the post-agreement behaviour indicates the lack of planning and lack of sophistication, demonstrated by Mr Covic parking his car illegally with flashing lights activated, and approaching Cecchin’s car on foot, with no weapon and no means of taking Cecchin away. Accordingly, submitted Mr Tyrell, I should take those actions into account as placing the criminal culpability at the lower end of the range. I agree with that, because the post-agreement actions of Mr Covic disclose almost a half-hearted attempt to carry out the plan, and therefore lend the same characterisation to the agreement itself.
13 The victim impact statement of Cecchin also raises the issue of the range of seriousness of the offending. Mr Cecchin stated that when he learned later from the police that there had been a plan to kidnap him he felt anger and fear, and constantly relived the event. He reported difficulties with his employment, and his family, describing his home as his sanctuary. The evidence about Mr Cecchin during the trial, and indeed given by him was at odds with this image of a family man living a stable life, and his claims to have been deeply affected by the conspiracy are not persuasive. Accordingly I place little weight on the statement as contributing to the gravity of the crime.
14 The criminal histories of the accused are instructive in that they reveal a disposition shared by both accused towards anti-social and criminal behaviour and in particular towards violent crime. In the case of Mr Covic this disposition preceded his regular use of methylamphetamine, or ice, beginning in 2007. In the case of Ms Oscianko, a general anti-social disposition coincided with homelessness as a teenager, having been obliged to leave her dysfunctional family home.
15 Both criminal histories feature multiple driving charges, and that of Ms Oscianko is characterised by many convictions for dishonesty. In 2001, when aged 21, she was dealt with for charges of arson and theft, and was placed on a Community Based Order. A friend had damaged her property, and she retaliated. It seems it was treated as a relatively minor matter, and is indicative of an anti-social attitude rather than violence.
16 On 19 June 2003 each accused was convicted in the County Court at Geelong of aggravated burglary and intentionally causing serious injury. Mr Covic was also convicted of making a threat to kill.
17 In that case both the accused had learned of assaults being perpetrated on a young woman friend by her partner, and they resolved to take the law into their own hands and assault the offender.
18 Ms Oscianko was aged 21 at the time of the offending and Mr Covic was ten years older. Her Honour Judge Lewitan, of this court, sentenced Ms Oscianko as the person who conceived of the idea but not as the primary offender, although Her Honour took into account that she had indeed participated in the assault, by tying the victims legs. Her Honour placed considerable weight on her prospects for rehabilitation, which she described as reasonably good, and she sentenced her to prison for 18 months, to serve 12 months before being eligible for parole.
19 Her Honour assessed Mr Covic’s prospects for rehabilitation as reasonably good as well, and sentenced him, as the principal offender, to 24 months’ imprisonment, to serve 18 months before being eligible for parole. In October 2009 Mr Covic was sentenced by His Honour Judge Mullaly in the County Court for one charge of blackmail to 2 years’ imprisonment, wholly suspended for 3 years. His Honour exercised leniency mainly on the basis of the circumstances of the offending placing it at the lower end of the range of seriousness.
20 I now turn to look at the personal background and circumstances of each of the accused.
21 Ms Oscianko, you are now aged 31, and the mother of a daughter who is nearly 6. I have already referred to your early background and your homelessness from the age of 13, brought about by an abusive relationship on the part of your father. You were the only child and your parents had high expectations of you, which you felt unable to fulfil. Your father was stern, indeed violent, and you felt unloved. You rebelled and chose not to return home after your father took you to a half-way house when you were 13 or 14. You lived on the streets, sleeping in parks and under bushes, and got into trouble with the police.
22 For a time you were in a relationship with Mr Covic, and then in 2002 you met Michael Trajcevski, who became the father of your daughter. You were with him for 5 years and you have described this as a happy time. However, he was killed and you were charged with the murder, and held in remand until the trial, when you were acquitted, and another person was charged and convicted of the murder.
23 You spent 18 months and 4 days in custody awaiting trial, but for four of those months you were serving two sentences for driving whilst disqualified. The balance has been calculated at 14 months and 4 days, or a total of 496 days. This is described as “dead” time, in that none of it was able to be credited to a sentence to be served. It will be taken into account in a general way, in contributing to determining the appropriate length of the sentence I shall impose.
24 Following your acquittal Michael Trajcevski’s mother still blamed you for the murder, and went about hiring a person to kill you and your father. An undercover police officer disclosed the plan and Mrs Trajcevski was sentenced to four years in prison for conspiracy to murder.
25 On your release in 2009 until the beginning of this year you had no stable home, and stayed in your car, or on friends’ couches. I note that this offence occurred during that period, and your evidence during the plea hearing was that you were using ice at the time. However, it appears from what you told the psychologist Mr Simmons, that, save for short periods, neither drugs nor alcohol have been an enduring problem for you in the past. In February this year you obtained your own house through the Ministry of Housing, and your daughter has been living with you since then. At present you are in a relationship with Justin Reynolds.
26 You are employed part-time as an administrative officer, and your employer speaks well of you in a written reference, as do others who have assisted you with various supports since the murder trial. Your father has written describing the family problems which triggered your youthful misbehaviour, and setting you on the course your life took. He believes you have changed markedly and that you now have a sense of purpose in looking after your daughter and making a better life for yourself.
27 Mr Simmons diagnosed a depressive disorder which he said would likely respond to treatment, and that a custodial sentence may very well worsen it. Mr Langslow, who appeared on your behalf on the plea, urged me to wholly suspend any prison sentence I impose, for reasons which include your lesser role, the fact that you have not offended since this matter and that you have changed your life. Certainly you have settled into a stable life looking after your daughter and working, and you gave evidence that you realise you made mistakes in the past and that you are now a different person. You are the sole parent for your daughter, and you have made a home for her. You said that at the time of the offence, you did not have your daughter in your custody and it was a bad time for you.
28 The prosecution submission was that this serious offence was not spontaneous but was planned over many hours, and some effort was made to act upon the agreement. In those circumstances, Mr Fisher submitted, the appropriate sentence falls within the range of three to five years, with a minimum of two to three years to be served before being eligible for parole, taking into account the mitigating factors and the time spent on remand in relation to the charge of murder. Having carefully analysed the circumstances of the offending together with your role and that of Mr Covic, I have concluded that that range is too high.
29 Your role in the agreement was to lure Cecchin to a place where he could be kidnapped, although you deny that that was why you lured him. You did not instigate the plan, but joined the agreement at some point after Mr Covic had already discussed it and arranged back-up with Mawas. The telephone conversations between you and Covic on which the prosecution relied during the trial occurred immediately before the meeting at the petrol station. While it was not long-standing involvement, and indeed Mr Covic appears to have been the chief target of the police once the conspiracy was suspected, your role was important and Mr Covic relied upon it.
30 The question of parity requires a careful comparison of the circumstances of each of you. You are ten years younger than Mr Covic. Your disposition towards committing violent crime is demonstrably less serious than his. Your role in this crime was a lesser one, just as was the case in the matter which led to your conviction in 2003. You served fourteen months in prison before being acquitted of an unrelated matter, and that must be taken into account in general terms. Your prospects for rehabilitation would seem to be good, with your daughter’s care providing a motivation to change that did not exist in 2003 when you last appeared in the County Court.
31 The question is whether the principles of general and specific deterrence can both be satisfied by a term of imprisonment that need not be served immediately. Your present circumstances mean it is less likely than in the past, that you will offend again. Although it is important that others be deterred by the sentence I give you, which will be a sentence of imprisonment, I am persuaded that the reasons I have already outlined justify the sentence being wholly suspended in your case.
32 Ms Oscianko, I sentence you to 12 months’ imprisonment which will be wholly suspended for 12 months. I have reduced the sentence from 24 months to 12 months, taking into account part of the 14 months dead time, bearing in mind that an arithmetical exercise is not required. I must advise you that if you were to re-offend during the next 12 months, in any way punishable by a prison sentence, you will have breached the suspended sentence and will have to return to court to be re-sentenced. You would then have to serve the time, unless you could show exceptional circumstances as to why you should not and that is very hard to do.
33 Mr Covic, I now turn to your personal circumstances and your background. You are a 39 year old single man. You lack close family ties, being an only child estranged from your parents, and divorced from your wife, who has prevented you from seeing your two children for the last six years.
34 You have had an insidious problem with methylamphetamine, or ice, for some years, and you suffer from chronic depression or a dysthymic disorder. You have a good work history as a spray painter, truck driver and in the security industry, but you have been unemployed for a period, until recently. I have already recounted your criminal history, which Mr Tyrell characterised as disclosing a tendency to want to help people in a misguided way, which has led to violence or a propensity for it. Your drug abuse has likely played a significant part in that, as your friends who have written letters in your support, indicate.
35 You have ceased using drugs since this offence and are looking for an opportunity to move away from the area where you are now living, because it brings you into contact with a criminal element.
36 Dr Cunningham, a forensic psychologist who saw you recently, described both those factors as protective, in the sense that, along with counselling, they may improve your psychological functioning.
37 Mr Tyrell submitted that these indications of a good prospect of rehabilitation, and the likelihood that you have reached a stage in your life when you are motivated to reform, justify a disposition combining a short prison term with a Community Corrections Order. The prosecution submitted that the same sentence as that indicated for Ms Oscianko was appropriate, three to five years, with a non-parole period of two to three years and I have already stated that I consider that range to be too high.
38 In view of the degree of criminality in relation to this matter, your previous disposition towards violence and opportunities in the past for rehabilitation that you failed to take up, I am not satisfied that a community based sentence would meet the requirements of either general or specific deterrence. I accept that you may be in a better position now, with greater maturity and insight, and having ceased using drugs, to change your tendency to resort to criminal behaviour. But that must be tested after you have served a custodial sentence, to which I shall apply some leniency by fixing a longer parole period than might otherwise be the case.
39 I sentence you to prison for two years and I fix a minimum period of 12 months which you must serve before being eligible for parole. You have already spent 24 days in custody, and they shall be reckoned as already served, pursuant to s.18 of the Sentencing Act. I shall cause that to be noted on the court record.
40 There is an application by the prosecution for the disposal of two mobile phones and related items. I shall make that order, subject to any objections which counsel might like to indicate, but I do not think I heard anything about that previously.
41 MS LYNCH: I would like to just make some brief submissions in relation to that. The bulk of which has been taken care of but just so that it's on the record.
42 HER HONOUR: Certainly.
43 MS LYNCH: There were two phones belonging to Ms Oscianko, they contain images of her deceased partner and child when the child was younger.
44 HER HONOUR: I see.
45 MS LYNCH: There have been some arrangements by the informant to copy those images to disc and I understand that that is in the post now, but if it could be perhaps not acted upon until confirmation receipt of those images by Ms Oscianko before the phone is destroyed.
46 HER HONOUR: All right. Ms Piper, has that been ‑ ‑ ‑
47 MS PIPER: That's certainly my understanding, Your Honour. They're on the way and in the mail, and it's certainly is my understanding that the disposal won't be acted upon until that's done.
48 HER HONOUR: All right, thank you.
49 MS LYNCH: As the court pleases.
50 HER HONOUR: That's all, thank you very much.
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