Director of Public Prosecutions v Petak

[2024] VCC 502

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01590; CR-24-00408.

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDDIE PETAK

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2024
DATE OF SENTENCE:	19 April 2024
CASE MAY BE CITED AS:	DPP v Petak
MEDIUM NEUTRAL CITATION:	[2024] VCC 502

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:  recklessly cause injury – traffick a drug of dependence –   delay – substantial period on remand – rehabilitation

Legislation Cited: ss 5(1), 6AAA, 18, Sentencing Act 1991 (Vic)

Cases Cited:                   Worboyes v The Queen [2021] VSCA 169; R v Renzella [1997] 2

VR 88.

Sentence:  Total effective sentence of six months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Ms. A Byrne
For the Offender	Ms V. Drago	Ms. M Shanahan

HER HONOUR: 

1Eddie Petak, you have pleaded guilty to one charge of reckless cause injury (Indictment N10582095.1), and on a separate indictment, one charge of trafficking a drug of dependence, possessing a drug of dependence and possession of a false document (Indictment N10582095.B).

2You have also agreed to this court hearing and have pleaded guilty to the summary charges of:

·     Deal with proceeds properly suspected of being the proceeds of crime;

·     Failure to comply with a direction to assist; and

·     Commit an Indictable Offence, namely, Trafficking in a Drug of Dependence whilst on bail.

3The full circumstances of your offending are outlined in the prosecution opening that have been marked today as Exhibit A and B.  This constitutes the factual basis upon which I sentence you.

Circumstances of the Offending

Indictment N10582095.1

4As it relates to the indictment containing the charge of reckless cause injury, the following is a brief summary.

5On 10 March 2022 you began making enquiries to hire an escort.  As a result of these enquiries and communications you booked the complainant, Ms Amie Kane[1], who was working as a sex worker, for two hours that night for $1,100 commencing at 8.30 pm.

[1] A pseudonym.

6At approximately 9.30 pm Ms Kane arrived at your address at 157 Sunshine Road, West Footscray, and she had no pre-existing bruising upon arrival.  You paid her the money, engaged in some sexual activity and offered to buy cocaine for Ms Kane at her request.  You left the house for this purpose, later returning with the two of you using cocaine together before engaging in consensual sex. You extended her booking time, paying her in cash.  Throughout the evening you prepared alcoholic drinks for her and she drank multiple drinks during the evening.

7At 5.40 and 5.41 am, Ms Kane messaged her friends, including Ryan Plank[2].  She sent further messages to him which stated, among other things, that she needed help, her phone had begun to die, she was trying to stay awake and she asked him to call the police and ambulance, and she gave him the address.

[2] A pseudonym.

8At 6.17 am on 11 March 2022 Mr Plank contacted Triple 0 providing the relevant details.  Some time during this period Ms Kane began to feel sick and passed out and at 6.36 am her phone battery died.  You woke up some time later and observed Ms Kane to be passed out on your bed.  You tried to wake her up a couple of times but were unsuccessful.  You decided to try and rouse her by putting her in the shower.  You took her to the ensuite bathroom off the main bedroom.

9It is the prosecution case that you excessively man-handled Ms Kane to and from and inside the bathroom, causing her to suffer various bruising injuries to her face, neck, abdomen and limbs.  You removed her bathrobe and roughly put her in the shower.  There she fell over multiple times in the shower, her face and limbs striking parts of the shower and its floor, and that is the basis of Charge 1, recklessly causing injury.

10You then moved her into the bed in the main bedroom where she remained asleep, unconscious, for many hours.

Report to Police

11In terms of the police report, I have already referred to the Triple 0 call at 6.17 am.  Police were diverted to other jobs and attended the address at 12.20 pm to conduct a welfare check.  There was no response from within the house.  They left and returned at 6.25 pm. 

12You were contacted by the police, were co-operative, exited the property and were arrested. 

13Upon searching the property police located Ms Kane who was only able to mumble incoherently in response and who had noticeable swelling and bruising to her left eye.

14Paramedics attended due to Ms Kane's condition, arriving at approximately 6.40 pm.  Ms Kanes's speech was observed to be slurred and unintelligible.  She had a haematoma and swelling to her left eye socket, cheek and cheekbone, and a laceration to her lower lip.  She had significant generalised weakness which prevented independent movement. 

15Ms Kane was transported to hospital by ambulance, arriving at 7.46 pm. Later blood and urine samples were obtained from her and she discharged herself at 1.32 am.

First Interview – 11 March 2022

16You were transported to the police station and interviewed, and your answers are extracted at paragraph 25 of the opening.  You were then released without charge.

Investigation

17On 12 March 2022 investigators executed a search warrant at your address, locating and seizing a number of items including drugs and some of Ms Kane's property. 

Medical Evidence

18On 15 March 2022 Ms Kane was forensically examined and the examination revealed that she had sustained:

·     left and right periorbital bruising;

·     subconjunctival haemorrhage to the left eye;

·     bruising to the neck;

·     redness and bruising to the left lower abdomen; and

·     bruising to the right shoulder, left arm, left and right knee, right leg, right foot, and left leg.

19Dr Harrison opined that:

·She had sustained injuries to her head and neck, limbs and abdomen that were the result of blunt trauma and blunt trauma with friction.  

·She had a range of different injury types involving multiple body areas, that could be consistent with a complex fall or being inflicted. 

·The bruising to abdomen, inner right arm and left knee could have been caused by fingers.

20On 16 March 2022 the samples earlier obtained from Ms Kane were analysed indicating the presence of methylamphetamine and cocaine with no evidence of Xanax.

21The toxicology report, medical evidence and photographs were also forensically examined arriving at the following opinions:

·The level of methylamphetamine in Ms Kane’s blood was very high.

·When examined by paramedics, her heart rate blood pressure was not elevated despite this high level.

·Circulating GHB may have ameliorated some effects of methylamphetamine toxicity. The absence of GHB in her blood does not exclude its presence in the hours before testing.

·If she had taken Xanax it would have been present. 

Second Interview – 24 March 2022

22Ms Kane made formal police statements on 16 and 17 March 2022. 

23On 24 March you were arrested again and participated in a further interview.  The answers are extracted at paragraph 37 of the prosecution opening which again I have considered but will not repeat here. When asked about the bruising to her stomach you stated it may have been when you picked her up in the shower and you may have grabbed her.

Indictment N10582095.B

24The charges on the next indictment containing the drug charges in part arise from the warrant that was executed at your address on 12 March 2022. 

25As already noted, a search was conducted where a number of items were located including drugs.  The drugs located were as follows:

·     Plastic zip lock bag containing brown powder (later analysed to be .05g mixture including methyl-amphetamine & 3, 4 methylenedioxy-amphetamine (Charge 1 – Trafficking in a drug of dependence (methylamphetamine)  

·     Plastic zip lock bag containing white powder (later analysed to be 0.2g of mixture including cocaine) (Charge 2 – Possess drug of dependence (cocaine))

First Interview – 11 March 2022

26As already noted, you were interviewed on 11 March 2022, mainly in respect of the matters concerning Ms Kane.  At that interview police directed you to provide the passcode to your mobile phone and you refused.

Search Warrant 24 March 2022

27On 24 March 2022 investigators executed a further search warrant at your residence and you were arrested and transported to the Melbourne West Police Complex for interview. 

28A search was conducted with the following items seized:

·False Victorian registration plates, (QXY466 & SUX977) (Summary charge 12 – dealing property suspected of being proceeds of crime);

·$10,000 cash (Summary charge 12 – dealing with property suspected of being proceeds of crime);

·Victorian driver's licence, two of them, one in the name of Brenton Cowell, the other Thomas McKinnon, both depicting your photograph (Charge 3 – Make false document (Victorian Driver Licence));

·Notebook containing names, dollar values and measurements (relating to trafficking of methylamphetamine) (Charge 1 – trafficking in methylamphetamine); and

·A card printing machine (Summary charge 12 – dealing property suspected of being proceeds of crime).

Phone Analysis

29Your iPhone, which was located in your possession at the time of the search, was later analysed and it was found to contain photographs and messages relating to methylamphetamine as follows:

·A photograph taken on 15 March 2022 at 1.40 pm which depicts your loungeroom and the coffee table;

·Present on the coffee table are two plastic zip lock bags containing a white crystal substance;

·A message exchange on 19 March 2022 at 11.40 am depicting an unknown female counting a large sum of Australian currency; and

·A message exchange on 18 March 2022 asking to be supplied with ‘two points’.

30You were subject to two grants of police bail originally imposed on 3 October 2020 and 3 November 2020 (Summary charge 15 – commit indictable offence (trafficking DOD) on bail). 

Second Interview – 24 March 2022

31During the second interview already referred to, on 24 March 2022, you were questioned about some of these matters and your answers are extracted at paragraph [12] of the prosecution opening.

Gravity of offending

32The charge of reckless cause injury, Mr Petak, is inherently serious, as indicated by the maximum penalty.  In your case I take into account that Ms Kane was in a somewhat vulnerable state given her level of intoxication.  Also, I take into account the range of injuries she sustained as evidenced by the photographs. 

33However, the charge of reckless cause injury is put on the basis of excessive force being used and I do consider its context to have a moderating effect.  The reckless cause injury occurred in the context of you engaging Ms Kane for her services and her becoming extremely intoxicated.  She told you that she needed to collect her brother – this reference may have in fact related to her son – the following morning and in an attempt to wake her you placed her in the shower. 

34During your interview with police on 24 March, you explain that this included that you may have injured her in the course of trying to deal with her in her limp state.  I accept your counsel's submission that your offending on this charge can be contrasted with offending that involves the deliberate or gratuitous infliction of violence and that it falls within the lower range, as also accepted by the prosecution.

35The offending the subject of the remaining charges occurs in the context of the search warrant executed on 12 and 24 March 2022.  Trafficking in drugs is also an inherently serious offence and you do have a relevant, though dated, prior history for such offending.  However, I do accept your counsel's submission that these offences fall within the lower range of seriousness for such matters, taking into account in particular the small quantities of drugs involved with reference to both Charges 1 and 2.  In my assessment of Charge 1, I do take into account that the offending is for the period between 12 and 24 March 2022, and while the quantum of drugs trafficked within this period is not, and cannot be alleged, the charge is to be also assessed against the notebook and photographs seized from your premises.

36In relation to Charge 2, the prosecution concede it was possessed for personal use, which I accept.  Also, in respect of these matters I take into account that you were on bail at the time.

37In relation to Charge 3, I note that it relates to two false Victorian driver's licences, as outlined.

38In respect of the summary offences, I note the circumstances, and that Charge 12 is comprised of the money, print machine and the vehicle registration plates.

Chronology

39The procedural chronology described by your counsel, Ms Drago, as ‘fragmented and tortured’ is important in this case and has been helpfully outlined by your counsel.  The relevant dates include the following:

·On 11 March 2022 you were originally arrested and interviewed about these matters and released from custody the next day;

·On 24 March 2022 you were again arrested, interviewed and remanded in custody;

·In September 2022 a contested committal hearing proceeded and on 2 September 2022 you were granted bail;

·On 28 January 2023 there was alleged further offending and you were remanded in custody on summary matters for which you were ultimately acquitted;

·On 20 March 2023, on application this court revoked your bail;

·On 21 November 2023 this court granted you bail on conditions; 

·Your trial was initially listed to proceed on 26 September 2023.  An application was made to adjourn this to 16 April 2023 on account of your counsel's sudden unavailability in exceptional circumstances;

·Your case resolved into a plea on 16 April 2024.

Plea of Guilty

40While this matter has a protracted history, in April 2023 I note you offered to resolve all matters in a near identical form to that which you are now pleading guilty to. 

41As accepted by the prosecution, given the unique history in this matter, your plea of guilty on the reckless cause injury was at the earliest possible opportunity and your plea on the remaining charges at the earliest reasonable possible opportunity. 

42Your plea of guilty has important utilitarian value, and as discussed today the Worboyes principles have some application, your plea of guilty entitles you to an important discount in sentence[3]. I also accept that your plea indicates your willingness to facilitate the course of justice and is also indicative of remorse.

[3]Worboyes v The Queen [2021] VSCA 169.

43Further, I take into account your general co-operation with the police and some of the admissions made in your interviews.  In respect of the reckless cause injury the prosecution accept your account in the interview and the admissions made.

Personal Circumstances

44Your personal circumstances were canvassed in detail by Ms Drago.

45You were 44  years of age and at the time of offending are now 46. 

46You grew up in Altona Meadows and were raised in a hard-working migrant household.  You have parents and four siblings who have generally been supportive of you.  Your parents divorced when you were around six months old.  Your mother re-partnered and your biological father suffers from dementia.  He has since, some time last year while you were in custody, passed away and I note you were unable to attend his funeral.

47You left school in Year 11 and began working in glass manufacturing.  You have a solid work history mainly in hospitality.  You have managed various restaurants and venues before owning your own restaurant on Lygon Street, Carlton.  In more recent years you owned a car wash business which you sold shortly before the COVID-19 pandemic.  You continue detailing work wherever possible.

48You have a history of substance use that appears to be longstanding and commenced when you were very young.  This has arisen, it seems, in the broader context of family grief, with your sister who was born two months premature, dying from cot death.  You used cannabis throughout your school years before progressing to heroin which you managed ultimately to stop.  Your substance use evolved or progressed through working in the hospitality industry and after a work injury in 2012.  You had had successful and lengthy periods of abstinence from drugs.

49In 2012 you injured your back while working on a conveyor and as a result you suffer from two bulging discs.  You have had a significant ongoing issue in respect of this including limited mobility and you have received some support through your general practitioner, though it is considered that you may require a spinal fusion but there are complexities involved in this.

50You have a relevant prior criminal history including for the more recent matters that were discussed today with Counsel. 

51Your Counsel submits that you do not have a history for assault-related offences against women.  I take this into account, though I do note that you have a relevant history for offences of a violent nature.

52In respect of trafficking you have relevant matters, but again I note that your last prior for this offence dates back to 1999.  In many ways, your history does generally appear to reflect your substance abuse and an ability to remain abstinent from drugs for reasonable periods of time. 

53I have already referred to your various periods of remand.  Your counsel submits that despite the difficult circumstances of your incarceration you performed relatively well in custody.  Your time in custody I note included lockdown conditions caused by the pandemic.

Prospects of rehabilitation

54While there is a need for some caution, Mr Petak, given your prior criminal history and also the nature of this offending, I do consider that you present with good prospects of rehabilitation.  In my assessment I take into account that you have strong family support and other protective factors; you have work, accommodation, you have maintained abstinence from illicit substances since your initial remand on 24 March 2022.

55As submitted by Ms Drago you performed well in custody including by working and undertaking a reintegration program, and in the main when released on bail on both occasions, you complied with stringent bail conditions.  You attended before this court for judicial monitoring on at least 15 December 2023, 29 January 2024 and 15 March 2024.

56The prosecution note that there was some degree of difficulty with some aspects of compliance on your bail and I have taken this into account.

57On release from custody in September 2022 you began living with a friend, Sam Apap, who owns a gymnasium.  I have had regard to his reference.  You have remained living with him, working at the gym and also tending to his property.

58Further, I take into account what I have already referred to which is your solid work history.

Other mitigating factors

59Your counsel also advanced and relied upon other mitigatory factors on your behalf.  She refers to, and I take into account, the conditions of your previous incarceration in the context of the pandemic and I accept that this would have been 'both difficult and sobering.'  I have taken into account that you spent one month at MAP in isolation and were also the victim of an assault.

60As a mitigatory factor in your case I accept that delay is relevant in a number of ways focusing attention on issues of rehabilitation and fairness.  I take into account the delay and the various interruptions in the finalisation of your case and the associated stresses and anxiety it has caused.  I also take into account that you have demonstrated, as I have already referred to, a present commitment to rehabilitating.

61As already noted, you have 408 days by way of pre-sentence detention and a further 53 days by way of Renzella time as they relate to the summary offences for which you were ultimately acquitted[4].  In sentencing you I take into account the periods that you have served in custody.

[4]R v Renzella [1997] 2 VR 88.

Sentencing purposes

62The principles of general and specific deterrence, protection of the community and denunciation play an important role in the sentencing exercise, particularly in matters of violence and drugs which do impact our community. Your rehabilitation is also an important sentencing purpose, particularly given the matters already canvassed, including your more recent progress and efforts at rehabilitation. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case.  I have also taken into account the maximum penalties for each offence and I have had regard to the general sentence landscape, in particular for offences of recklessly cause injury and trafficking.

63Further, I take into account the principles of parsimony, proportionality and totality.  Totality, I consider, is an important sentencing consideration in your case given that the offending mostly arises in the context of the incident involving Ms Kane and the resulting search warrant executions in March of 2022.

64The prosecution submit an immediate term of imprisonment is required and a short term is appropriate.

65Your Counsel submits that while a community corrections order might have been an appropriate disposition, had your case resolved at an earlier time such a disposition would now be disproportionate.  She submits that a short nominal term of imprisonment is, in all the circumstances, the appropriate disposition.

66Assessing and synthesising all matters, I do consider that the only just and appropriate sentence is a term of imprisonment.  In determining and structuring this period I have taken into account all matters including the objective gravity of your offending as assessed and the significant mitigating factors advanced on your behalf.

Sentence

67Mr Petak, if you could please stand.

68On Charge 1, on indictment ending 095.1, on the charge of recklessly cause injury you are convicted and sentenced to four months' imprisonment.

69In respect of the other indictment ending 95.B, Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to four months' imprisonment.

70Possess drug of dependence, Charge 2, convicted and sentence to seven days' imprisonment.

71Possess false document, convicted and sentenced to one month imprisonment.

72On the summary charges, the proceeds charge, you are convicted and sentenced to one month imprisonment.

73The failing to comply with direction to assist, convicted and sentenced to seven days' imprisonment.

74Commit indictable offence on bail, given that I have taken it into account in assessing the substantive offences, seven days' imprisonment.

75I do not make any orders for cumulation on that second indictment, so that means that on the first indictment, the reckless cause injury, the period is four months. 

76On the second indictment the total effective sentence is four months.

77As between both indictments, I am going to cumulate two months.  So two months will be cumulated on the first indictment, the reckless cause injury, which would total a period of six months' imprisonment.

78Pursuant to s18, I declare that you have served six months' imprisonment.

79A s6AAA declaration, I have to say is very challenging in your case, but I can indicate that had you not entered a plea of guilty I would have sentenced you to at least a period of 12 months' imprisonment.

80The ancillary orders, disposal and forfeiture, are made in the terms sought unopposed.

81Counsel, is there anything further?  Mr Petak, you can take a seat.

82HER HONOUR: Ms Guesdon, Ms Drago and Ms Shanahan, thank you for your considerable assistance in this matter.  Mr Petak, this concludes your case, you can discuss the result with your Counsel.  The court is adjourned.

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