Director of Public Prosecutions v Persilski

[2016] VCC 1609

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00689

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER PERSILSKI

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2016
DATE OF SENTENCE:	31 October 2016
CASE MAY BE CITED AS:	DPP v Persilski
MEDIUM NEUTRAL CITATION:	[2016] VCC 1609

REASONS FOR SENTENCE
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Subject: Criminal  law - sentence
Catchwords: Pleaded guilty to one charge of affray, one charge of being a prohibited person in possession of a firearm  – co-accused discharged at committal -  significant delay no fault of offender –suffering post traumatic stress disorder – guarded prospects for rehabilitation. 
Sentence: 497 days.  497 pre sentence detention – time served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	OPP
For the Accused	Mr L. Richter	Stary Norton Halphen

Page

s 1 - 5

 

 

HER HONOUR:

1Peter Persilski, you have pleaded guilty to one charge of affray and one charge of being a prohibited person in possession of a firearm.

2On the evening of 24 July 2014, you were with friends at the house of the co-accused John Lee.  At about 10.45 pm, gunshots were heard, being fired outside the house.  You and others went outside and confronted two men, one of whom was Steven Greenwood, both seated in his car.

3During the confrontation, someone in the group fired a sawn-off shotgun twice into the bonnet of Greenwood's car.  The group then ran back inside.

4You then heard people shouting, "Lee, you're dead.  We're going to get you, Lee."  A car window was heard to smash and then the people outside left the scene.

5A short time later, you with Lee and another of the group, Jimmy Gabra, left in Lee's car.  Gabra, who was also a co-accused, was dropped off around the corner and you and Lee continued driving.  You were in the passenger seat.

6The car was pulled over by the police and a loaded 12 gauge double barrel sawn-off shotgun was located in the front passenger seat footwell.

7On 29 July 2014, you were arrested and a record of interview was conducted in which you denied having put the gun in the car but said you had seen it there half under the seat.  In effect that was an admission and you also admitted the affray.  That is an indication of remorse which is a mitigating factor, in that it adds to your prospects for rehabilitation.

8You were released on bail but arrested for other offences on 23 August 2014 and remanded in custody.  You served a sentence of 200 days for those matters and remained in custody with the result that you have spent 497 days in custody for these offences.

9That time was spent in protection because of the assistance you gave to the authorities in a previous matter which was a conviction for kidnapping and recklessly causing serious injury in 2012.

10The co-accused were both charged with affray but were discharged at committal.  You did not take part in that hearing for funding reasons, maintaining your plea of not guilty until the matter resolved on 30 June this year.

11You were granted bail on 20 July 2016, your application being unopposed by the prosecution.

12Although the plea was late in the proceedings, it was entered at the first available opportunity.  Accordingly it deserves a discount on your sentence because you played a part in avoiding a trial and it brought your part of the proceedings to a close.  That utilitarian benefit to the criminal justice system is recognised in the sentencing process.

13It was submitted by your counsel that the offence itself was not at the lower end of the range of seriousness as it involved the use of a firearm but because it is not said that you used the firearm, your culpability is at the lower end or just above it.

14There has been a significant delay in the matter for reasons connected with the involvement of co-accused and other factors unrelated to your participation.  Delay must be taken into account, particularly given that you have spent 497 days in protective custody without access to programs and part of that time in lockdown following the prison riots last year.

15As far as your personal circumstances are concerned, you are now aged 34, living with your mother and step-father since being released on bail.  Your background, put briefly, is that you were born and raised in Macedonia until the age of nine when you came to Australia with your mother.

16Your father was a violent alcoholic and your mother's decision to leave the country was in part to escape that marriage.

17The trauma of your early years has affected you adversely, together with the later trauma, resulting in post-traumatic stress disorder.

18You have had considerable problems with illicit drugs, particularly methamphetamine but you have remained drug-free since your release, with a clean drug screen demonstrating that.

19Apart from the conviction already mentioned, you have other convictions for drug related matters at quite a serious level, and a non-conviction fine for affray many years ago.

20On the positive side, you have the prospect of employment as a butcher, and being presently drug free you intend to make a new start, but it is a pity that due to circumstances, you have not had the benefit of programs in custody or as a parolee to reinforce strategies for remaining abstinent.

21Fortunately, it is not unusual for offenders to reduce or even cease offending as they grow older.  This applies more often to those who do have employment and a stable lifestyle.

22Having said that, your prospects for rehabilitation are probably guarded because of the risk of relapse and you would be well advised to consider that risk carefully.

23The offending calls for a prison sentence because the offences are serious.  The maximum penalty for affray is 5 years' imprisonment and for the firearms charge, 10 years.

24General deterrence must play a part in the sentence as well as specific deterrence in your case, because of the circumstances and your prior and indeed subsequent offending, but the time you have already served is sufficient when the mitigating factors are taken into account.  It is also appropriate that the sentence be an aggregate sentence.

25Accordingly, I sentence you to an aggregate term of imprisonment of 497 days and I declare that to be reckoned as already served and I shall cause that to be noted on the court record.

26The prosecution seeks a forfeiture order in respect of the firearm and the ammunition.  Mr Richter, I am not sure if you have told me whether that is opposed or not?

27MR RICHTER:  It is not opposed, Your Honour, no.

28HER HONOUR:  Not opposed?  I make that order.  Are there any other matters?  Ms Bolton?

29MS BOLTON:  No, Your Honour.

30HER HONOUR:  Mr Richter?

31MR RICHTER:  No, as Your Honour pleases.

32MS BOLTON: Your Honour, s.6AAA?

33HER HONOUR: If I do not make it, it does not invalidate the sentence but I am supposed to address it. So I will. Pursuant to s.6AAA of the Sentencing Act, but for the plea of guilty, I would have sentenced you, Mr Persilski, to 2 years' imprisonment.

34MR RICHTER:  As Your Honour pleases.

35HER HONOUR:  Thank you.

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