Director of Public Prosecutions v Radovanovic
[2019] VCC 213
•26 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01563
CR-17-00454
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARKO RADOVANOVIC |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2019 | |
DATE OF SENTENCE: | 26 February 2019 | |
CASE MAY BE CITED AS: | DPP v Radovanovic | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 213 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCE
Catchwords: Cultivating not less than a commercial quantity of cannabis L and theft of electricity – burglary, theft and possession of a category E handgun – Extracurial punishment – catastrophic injuries occasioned to Mr Radovanovic arising out of the crimes committed – general deterrence of little significance as a sentencing consideration, likewise specific deterrence, despite prior and subsequent offending – prospects of rehabilitation guarded – Community Correction Order imposed – exceptional circumstances conceded by the Crown prosecutor
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.D. Singh | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A. Patton | Haines & Polites |
HER HONOUR:
1 Marko Radovanovic, you have pleaded guilty to charges on two indictments.
2 Indictment E11017485 concerns one charge of cultivation of a narcotic plant, namely cannabis L, between 3 December 2013 and 30 December 2013, in a quantity that was not less than a commercial quantity applicable to that narcotic plant and theft of electricity relating to the same timeframe.
3 In relation to Indictment G10464752.1, you have pleaded guilty to one charge of burglary, one charge of theft and possession of an unregistered category E handgun. Those charges arise out of an incident that occurred on 3 August 2015.
4 In addition, you have admitted your prior criminal history. It is an extensive history and you have relevant firearms convictions recorded in 2010 and 2012, relevant convictions for cultivating a narcotic plant, cannabis in 2005 and other drug related offending, for which you have received a variety of dispositions in the past, including actual prison terms to be served.
5 You are now 48 and you were 43 at the time of the offending relating to the first indictment and aged 45 at the time of the second offending relating to the second indictment.
6 I shall proceed to sentence you now on the basis of the Crown openings that were read at the plea hearing.
7 East of the offences for which you are charged are serious and that is reflected in the maximum penalty prescribed by law and they are for:
·cultivating a commercial quantity of a narcotic drug, 25 years’ imprisonment;
·theft – 10 years’ imprisonment;
·burglary – 10 years’ imprisonment; and
·possession of a category E handgun, 12 penalty units or 10 years’ imprisonment.
8 I will turn now to the circumstances of the first indictment.
9 You were arrested at a property in Tarneit on 3 June 2013. Troy McClelland and one other person who is not named were also arrested. When police executed the search warrant they located a hydroponic cannabis crop contained within four grow rooms. In total, there were 73 plants recovered and they weighed 61.488 kilograms. In addition, an electrical bypass was located and the estimate of stolen electricity has been fixed at $2,492.60.
10 After your arrest, a formal record of interview was conducted. You confirmed that you were an electrician and that you had worked at the premises a few times but you said that you did not see anything else at the property.
11 Troy McClelland, the co-accused, was convicted following trial of both charges. His sentence was then the subject of an appeal to the Court of Appeal. On 30 May 2017, the appeal was allowed. On the evidence, the Court of Appeal was satisfied that it was not possible to draw a conclusion, beyond reasonable doubt, as to the role performed by Mr McClelland, other than he attended the premises regularly and frequently, and during the period charged to cultivate the cannabis crop that was being grown there.
12 He was re-sentenced on the basis of the offending taking place over a period of 27 days and also on the size of the cannabis crop that was found on the day the police executed the warrant. The court was satisfied that it constituted 2.46 times the minimum quantity for a commercial quantity of cannabis. He was sentenced on the basis he took an active part in the cultivation of the drug during the time alleged, by attending the premises on at least seven occasions for that purpose.
13 Mr McClelland had a number of previous convictions, including possession of cannabis and heroin and a long history of drug use. The sentence that was imposed by the Court of Appeal was a term of imprisonment of 3 years 9 months with a non-parole period fixed of 2 years and 5 months.
14 Apart from your presence at the time the police executed the warrant and your admissions that you were an electrician who had worked at the premises a few times, there was no other evidence concerning your particular activities at the crop house and I will be sentencing you on the basis of your plea, that is that you were involved between 3 December and 30 December 2013, in your role as an electrician.
15 In respect to the second indictment, that concerns an incident on 3 August 2015. It involved you offending in company with Frank Rajic and two others. You were disguised wearing a black hood and gloves. You entered a property at 27 Streeton Avenue, Caroline Springs in company with Frank Rajic and two others. The property was being used as a Cannabis L grow house. The group cut some branches off some mature cannabis L plants, weighing approximately 19.15 kilograms, and then left the premises.
16 Robert Cleland, who had an interest in the crop, arrived at the premises and upon seeing your group, chased your group in his vehicle. You left the premises initially alone in a vehicle and then picked up Rajic. Rajic then drove the vehicle away with you as passenger.
17 Eventually Cleland caught up with your vehicle and the two vehicles stopped in The Esplanade, Taylors Hill. You exited from the vehicle carrying a firearm, being the unregistered category E handgun.
18 You ran towards the driver’s side of Cleland’s vehicle. He performed a U-turn and struck you to the right leg with his vehicle. As he started to drive away, you raised the firearm towards his vehicle and then ran back to the vehicle where Rajic was waiting.
19 Cleland then performed another U-turn and then drove towards you. You then aimed the firearm at his car.
20 It was conceded by Mr Singh, the prosecutor that your actions in raising the firearm were performed in self-defence.
21 Mr Cleland continued driving at you and struck you, causing you to be carried on the bonnet for a distance before coming off and colliding with the brick fence at no. 92 The Esplanade.
22 He continued driving past the vehicle that was then being driven by Rajic and performed another U-turn and rammed the rear driver’s side of that vehicle causing damage. You were lying unconscious on the footpath at that time. Cleland continued driving forward after hitting the other vehicle and collided heavily with you and the brick fence outside No.92 The Esplanade.
23 As a consequence of his actions, you suffered catastrophic injuries that were particularised in paragraph 11 of the Crown opening.
24 You were taken to hospital with life-threatening injuries. You suffered traumatic brain injury, orthopaedic and extensive internal injuries. Your recovery was complicated by pneumonia, deep vein thrombosis and septicaemia. Post-traumatic amnesia duration was not measured, possibly due to your medical complications. You now experience hearing loss and you are severely disabled as a consequence of your injuries.
25 Mr Rajic was sentenced by his Honour Judge Ryan on 22 December 2016 for this and some unrelated offending. In respect to this offending, he was charged with one charge of burglary and one charge of theft. He too, had the extensive criminal history. He was aged forty-three. He had a past history of heavy drug use, commencing at an early age.
26 He was sentenced to 18 months’ imprisonment in respect to the burglary and 2 months’ imprisonment in respect to the theft charge. Other orders were made in respect to a separate indictment and he received a total effective sentence of 6 years and 4 months with a non-parole period of 4 years and 4 months’.
27 Mr Radovanovic, ordinarily your offending would warrant the imposition of a gaol term. However Mr Singh, the Crown prosecutor in this case, has conceded that, having regard to the unusual and exceptional circumstances of your case, together with your current condition and personal circumstances, that the imposition of a Community Correction Order was open as an appropriate sentencing disposition in all the circumstances.
28 Mr Patton, on your behalf, sought a Community Correction Order so that you can remain in the community with the intensive supports that you are provided to assist you in your activities of daily living.
29 Material has been put before the Court that confirms your extensive cognitive, physical and physiological deficits.
30 Ms Alice Dwyer, occupational therapist, confirms that you are at risk of further injury or negative health outcomes without the supports that you have currently in place. Your ability and needs fluctuate day to day and are exacerbated by fatigue, stress and distraction. The most notable of these are poor balance, right ankle instability, back and pelvis pain. I noted that, you have significant metalwork retained after surgeries, altered sensation of body position awareness, bladder dysfunction and hearing loss.
31 You require a single crutch and an ankle brace on your right ankle when walking. Your gait is unsteady and at times you experience collapse because of weakness in your legs. You have severe difficulty stepping and significant reduced hearing. You do have intact vision but have difficulty in taking in information in your left visual field. You need a person to accompany you whenever you have to cross roads.
32 I am satisfied that you have significant cognitive impairments as a consequence of the acquired brain injury suffered as a result of being struck multiple times by Mr Cleland's vehicle. Currently you have intensive supports and it is anticipated in the near future that you will have 24 hour around-the-clock care.
33 Reports from Dr Sara Fratti, senior clinical neuropsychologist, and Dr Kathryn Hoskin, clinical neuropsychologist, confirm your significant deficits relating to the cognitive, behavioural and the emotional impacts of your acquired brain injury.
34 Your extensive supports include physiotherapy, occupational therapy, speech pathology, neuropsychology as well as allied assistance, attendant care workers, a case worker and a TAC support coordinator.
35 Regrettably all your deficits are permanent in nature and will continue to affect you in the longer term, particularly as you approach older adulthood.
36 Another aspect of your condition is that you can at times act impulsively and have little insight. You have difficulty expressing your thoughts and generating ideas and solving interpersonal problems logically. You are easily overwhelmed and confused. I am satisfied that were you to be imprisoned that the burden of imprisonment would be significant and limbs five and six of the Verdins[1] principles are enlivened.
[1]Verdins; Buckley; Vo (2007) 16 VR 269
37 In formulating the appropriate sentence, I have had regard to your pleas of guilty. Those pleas have real utilitarian value. By your pleas, you spared the cost and unnecessary expense and inconvenience of trials being conducted in respect to both indictments. You now accept that the conduct was wrong and I accept that the pleas are indicative of some remorse on your behalf.
38 You have subsequent outstanding charges relating to some breaches of intervention orders.
39 I note having regard to the nature of your deficits due to your acquired brain injury that you have been significantly impaired and I have already referenced the problems with impulsivity and lack of insight and that may well explain why you have difficulties adhering to the intervention orders.
40 You have an intervention order in place in relation to a former partner with whom you have a young child. You have not seen that child since separation.
41 Overall, I consider that the likelihood of reoffending is low and your prospects for rehabilitation are good, particularly having regard to your current level of disability and your current level of attendant care. It is unlikely that you would engage in offending of the nature for which you are currently before the Court.
42 Having regard to your acquired brain injury and other problems that I have highlighted, the need for general and specific deterrence has been moderated considerably and has only a limited role to play in your sentence. Your catastrophic injuries and the consequences of those injuries are of a severity sufficient for them to be seen as a form of extracurial punishment and mitigate your sentence to a significant extent.
43 Balancing all the matters that I must, I consider that a Community Correction Order to be imposed of 2 years’ duration with supervision only is required and is just punishment.
44 Accordingly, in respect to both indictments, you will be placed on such an order. Convictions will be recorded in respect to Indictment E11017485, in respect to cultivation of a narcotic plant not less than a commercial quantity and the charge of theft and you will be placed on a Community Correction Order of 2 years’ duration with supervision.
45 In respect to Indictment G10464752.1, one charge of burglary, one charge of theft and one charge of possess an unregistered category E handgun, you will be convicted and placed on a Community Correction Order of 2 years’ duration with supervision.
46 You have had the proposed orders explained to you by your experienced counsel, Mr Patton as well as the consequences of any breach. Mr Patton has indicated that you understand such an order and that you are prepared to consent to the making of those orders.
47 Finally, I make the disposal order sought and the forfeiture order sought.
48 MR SINGH: As Your Honour pleases.
49 HER HONOUR: Given the somewhat artificial nature of a s.6AAA declaration and the fact that I am not obliged to give one in these circumstances, Mr Singh, I do not propose to do so.
50 MR SINGH: Yes. Perfectly understandable, Your Honour.
51 HER HONOUR: Thank you. All right. Those orders have been prepared. I will sign the order and the duration is two years.
52 MR PATTON: Thank you, Your Honour.
53 HER HONOUR: I will get you to accompany my associate to sign.
54 MR PATTON: Yes Your Honour. Of course.
55 HER HONOUR: All right. They are signed. When I leave the Bench I will get my associate to copy those and provide those to you and I will ask that the revised sentencing remarks be provided with priority, so that they can be provided to Haines and Polites to assist you with the Magistrates' Court matters.
56 MR PATTON: Thank you, Your Honour.
57 HER HONOUR: Very well, I will let Judge Johns know you are ready to go.
58 MR PATTON: Thank you, Your Honour.
59 HER HONOUR: Thank you.
0