Director of Public Prosecutions v Radulovic

[2019] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation:

DPP v Radulovic [2019] NSWLC 1

Hearing dates:

15 January and 12 February 2019

Decision date:

12 February 2019

Jurisdiction:

Criminal

Before:

Judge Graeme Henson AM, Chief Magistrate

Decision:

See [28]-[29]

Catchwords:

CRIME – Sentence – Assault Occasioning Actual Bodily Harm in Company – Possess Prohibited Drug – utilitarian value of guilty plea – previous criminal record - substance abuse – possible underlying mental health issues – no medical report - section 5 threshold crossed – Intensive Corrections Order not appropriate – sentence of full-time imprisonment imposed

Legislation Cited:

Children’s (Criminal Proceedings) Act 1987 (NSW) s 15
Crimes Act 1900 (NSW) s 59(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 47(3), 66
Drugs Misuse and Trafficking Act 1985 (NSW) s 10(1)

Cases Cited:

Imbornone v R [2017] NSWCCA 144
R v Borkowski [2009] NSWCCA 102
R v De Simoni (1981) 147 CLR 383
R v Doan (2000) 50 NSWLR 115
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60
R v Pullen [2018] NSWCCA 264

Category:

Sentence

Parties:

Director of Public Prosecutions (prosecutor)
Dejan Danny Radulovic (defendant)

Representation:

Counsel:

 

Mr Chhabra (for the defendant)

   

Solicitors:

  Mr Muller (for the prosecution)

File Number(s):

2018/00053669

Publication restriction:

Nil

Judgment

1. The defendant is before the Court to be sentenced in relation to two offences - an offence of violence and a drug related offence. The offence of violence is charged as Assault Occasioning Actual Bodily Harm in Company. This is an offence contrary to section 59(2) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is imprisonment for 7 years and/or a fine of $5500. The offence is amenable to summary disposition in the Local Court. In such circumstances the Local Court is limited to a maximum penalty of 2 years imprisonment. The observations made in R v Doan (2000) 50 NSWLR 115 are apposite. The objective seriousness of an offence that is amenable to summary disposition is to be judged by the maximum penalty attaching to the offence not to the jurisdictional constraint.

2. The second charge is one of Possession of a Prohibited Drug contrary to section 10(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 2 years imprisonment and/or a fine of $2200.

3. On 26 November 2018, after months of negotiations between the DPP and the accused through his legal representatives, the defendant entered pleas of guilty to the charges. A more serious charge was withdrawn by the DPP on the basis of the pleas entered to the other charges. The pleas of guilty were given some 9 months after the proceedings first came before the Court. Given that the charges to which pleas were entered were before the Court firstly on 18 February 2018 for the drug matter and 20 February 2018 for the Assault Occasioning Actual Bodily Harm matter it can hardly be said that there were not earlier opportunities to enter pleas, irrespective of whether the DPP had at one stage in April 2018 elected to proceed on indictment. I note in passing the observations by Howie J in R v Borkowski [2009] NSWCCA 102 regarding the principles of general application that may affect the discount afforded by a court for the utilitarian value of a plea of guilty. It is the view of the Court that the history of delay in the entry of pleas should result in a discount of no more than 10%. The case against the offender as disclosed in the agreed statement of facts was overwhelming.

4. As indicated, an agreed statement of facts was tendered in the proceedings. They are attached to the court file. For the sake of brevity I have reduced them to their essential components.

5. The context of the offending is to be found in a practical joke played by the victim on the father of the offender. One of the accused, Vaso Radulovic drove a truck. It was parked at his place of work. The victim took the keys to the truck and secreted them in the side pocket of the driver’s side door. It is clear that Vaso Radulovic found no humour in what had been done. When he could not find his keys Vaso Radulovic rang the victim twice. On each occasion he was told where the keys were. At the end of the day a short conversation occurred between Vaso Radulovic and the victim. The victim apologised.

6. This was not enough for Vaso Radulovic who challenged the victim to a fight. He began shaping up to the victim. Other workers separated them but Vaso Radulovic continued to shape up to the victim and challenge him to throw a punch. The victim declined to physically engage. The facts are unclear but it seems that around this time Vaso Radulovic ceased to be in the victim’s immediate vicinity. It can also be inferred that Vaso Radulovic summoned his son, Dejan Radulovic and another man by the name of Michael Radulovic, whom I assume to also be his son.

7. The offender spoke to the victim, telling him his conduct towards his father was “not right”. He then rang Vaso Radulovic and told the victim to come and see his father. After walking to another part of the depot another male, Michael Radulovic came towards the two of them, approached the victim and punched him to the left eye. Vaso Radulovic was by this time, also present. As set out in paragraph 17 of the agreed statement of facts “the offenders continuously assaulted the victim who covered his head but could see legs around him kicking him”. He could not see which of the three were doing what to him and shortly he lost consciousness, waking up on the floor surrounded by other colleagues and covered in blood. Photographs at paragraph 21 graphically depict the physical appearance of the victim. The victim was subsequently taken to hospital. Paragraphs 24 and 25 describe the injuries of the victim. They include severe bruising to one side, fractures to his left eye socket and minimally displaced fractures of nasal bones with acute fractures in at least two places.

8. As a result of his injuries the victim had to undergo plastic and reconstructive surgery to treat the fractures and deviation of his nasal bones as well as the scars on his face.

9. The victim was still in hospital the following day when he received a telephone call from the offender wherein words were said by the offender to the effect that he “better not say anything or we will give you a visit”. This statement together with other statements attributable to the offender through back tracking the calls to the offender’s mobile phone are clearly statements intended to intimidate the victim into silence. This conduct has not been subject of a charge. It is not however a course of otherwise criminal offending behaviour that is caught by the principles enunciated by the High Court in R v De Simoni (1981) 147 CLR 383. This part of the agreed facts goes towards demonstrating an initial lack of contrition and remorse on the part of the offender.

10. The offender was arrested on 18 February 2018. He remained in custody bail refused until 9 March 2018 when he was released on bail. Vaso and Michael Radulovic have also been arrested. As at this date their matters remain unresolved. That being the case no issues of parity arise.

11. In the ordinary course the court would turn its mind to the aggravating factors set out in section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). However, some of the factors set out in that provision are elements of the offence of Assault Occasioning Actual Bodily Harm in Company. To have regard to them for the purposes of section 21A(2) would result in double counting. As is too often the case the court has no information before it regarding the intermediate and long term consequences of this vicious, cowardly attack on the victim so that it cannot reach a level of evidentiary satisfaction on the issue of whether section 21A(2)(g) considerations arise. Sentence must proceed without a finding in that regard.

12. Before turning to the subjective factors, I note that the offender is no stranger to the criminal justice system. However, it is important to note that this statement relates to his offending as an adult. Although for explanatory purposes it is necessary to note he has a history of engagement within the children’s jurisdiction the gap between that era and his offending in the adult community exceeds 2 years. Section 15 of the Children’s (Criminal Proceedings) Act 1987 (NSW) prohibits the Court taking the record of the Children’s Court jurisdiction into account.

13. The offender’s criminal record as an adult reflects an offence of Affray for which a bond was imposed, confirmed on appeal, breached and dealt with by a suspended sentence that expired in late August 2016, a bond for drug possession which was breached, other drug related offending and driving matters resulting in the imposition of monetary penalties. It is not a significant record however it is one that can only lead to the conclusion, particularly in light of repeated breaches of bonds, that the prospect for rehabilitation is guarded. In this regard I note the Sentence Assessment Report assesses the offender as a medium risk of reoffending.

14. Antecedents to one side the offender was 23 years of age at the time of the offending. He is now 24 years of age. The Court has been assisted in relation to his background by a Sentence Assessment Report prepared by an officer of Community Corrections and material provided by the offender through his counsel. I turn firstly to the Sentence Assessment Report.

15. The offender is a gyprocker in gainful employment who resides in stable accommodation with family, including at least one of the co-accused. The report identifies issues to do with substance abuse, alcohol and drugs and anger management issues, the latter circumstance being one with which he has struggled through his schooling. The suggestion is made that this condition and perhaps recourse to substance abuse may have a causal relationship as a reaction to the breakdown of his parents’ relationship and the subsequent custody battle that took placed through the Family Court for some time. The Court notes that during this difficult period the offender had recourse to a psychologist.

16. I accept the likelihood that there are factors that arose during the offender’s childhood that were not conducive to a stable upbringing and that he had problematic role models. Given that his father was the prime mover in the commission of this offence that reality is self-evident.

17. The Sentence Assessment Report identifies a period of alcohol abuse from the age of 22 and admissions by the offender that he has been experimenting with and using prohibited drugs since he was aged 15. The second charge before the Court suggests that drug use may well remain part of his background. So too does the likelihood that he is a person afflicted with anger management issues and has been since he was a young child. Again the Sentence Assessment Report highlights this possibility noting that it was the offender who disclosed the issue.

18. Mindful of what the Court said in Imbornone v R [2017] NSWCCA 144 regarding the weight to be given to the uncorroborated claims of the person with the most to gain, namely the offender, it is nonetheless reasonable to observe that difficulties within his background associated with the failure of his parents’ marriage, and the descent into drug abuse and crime by his mother resulting in her incarceration, are aspects of upbringing that in the experience of courts often act to diminish moral and ethical restraint and commonly bring about a weakening of the commitment otherwise shown by ordinary members of the community to respecting others and the strictures of the law.

19. Bearing in mind the observations in the Sentence Assessment Report regarding possible underlying mental health issues the Court would have been greatly assisted by a psychiatric or psychological report. I understand that the extremely restrictive bail conditions imposed on the offender did not assist with enabling this avenue to be pursued. Without such material both the Court and, as a consequence, the offender are at a disadvantage. Unassisted the Court is left to do the best it can in assessing whether the offender’s history lends itself to the likelihood that his level of moral culpability is reduced. In light of a number of separate pointers towards this likelihood I err on the side of caution that his social values and sense of judgment has been impacted upon by those factors identified.

20. This does not excuse his conduct, which remains cowardly, reprehensible and brutal whether inspired by his father and/or his brother or not. It does however bring about a finding that his moral culpability is less than it would otherwise have been without the complications experienced, through no fault of his own, during the formative stage of his life.

21. References tendered on behalf of the offender paint him in a very different light from the person involved in the offending. It should be noted that courts are rarely, if ever, provided with a bad reference and that the weight to be given to the untested contents is limited. Despite these considerations they do point to the prospect of rehabilitation as being possible. The letter of apology tendered by the offender is to be treated with caution in terms of contrition and remorse. This is because of his conduct subsequent to the commission of the offence wherein his comments and veiled threats to the victim imply a complete lack of contrition and remorse. Perhaps reflection leads to a greater level of genuineness in relation to remorse and contrition. Perhaps an offender familiar with the criminal justice process is sufficiently knowledgeable to know what is expected on these two fronts. The weight to be given to the offender’s written apology is correspondingly limited.

22. The Court does not lose sight of the fact that the offender resides with his father. On the agreed facts before the Court his father appears to have been the architect of the violent attack on the victim. The clear inference from the facts is that he is a person who exercises a strong level of control over his sons and presents as an individual who also lacks self-control, who sees violence as an appropriate response to what was objectively nothing more than a workplace attempt at humour that most people would either laugh off or get over in short order.

23. Realistically counsel for the offender concedes the threshold identified in section 5 of the Sentencing Act has been crossed. This is also the position of the DPP. Section 5 of the Act cautions a Court against sentencing an offender to imprisonment unless, having considered all possible alternatives that no other penalty than imprisonment is appropriate. Counsel for the offender urges the Court to consider a sentence of imprisonment served by way of an Intensive Corrections Order. Such an order is, by virtue of section 7 of the Act to be regarded as a sentence of imprisonment, albeit one that is served outside a prison and within the community.

24. The suitability and appropriateness of an Intensive Corrections Order in meeting the purposes of sentencing set out in section 3A of the Sentencing Act has been considered in decisions such as R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60 as a sentence involving “substantial punishment”. It was recognized in R v Pullen [2018] NSWCCA 264 at [89] that “where the offender’s prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an ICO may be available”. In these proceedings I have noted the prospect of rehabilitation could only be regarded as guarded, and why. In this respect, additional to the reasons articulated, the Court cannot ignore the fact that on a number of occasions when given sentences directed towards rehabilitation the offender failed during the currency of the respective orders to live up to the reasonable expectations that are a part of such outcomes.

25. In addition there are the provisions of section 66 of the Sentencing Act as it applies to assessing the appropriateness of a sentence to be served by way of an Intensive Corrections Order. As Section 66(1) articulates – “community safety must be the paramount consideration”. Such a factor is in addition to the requirements to address section 3A of the Act. Those provisions speak for themselves. Some of the provisions speak more loudly than others. Against the need to ensure community safety is the need for “adequate punishment”, so too with the need for denunciation and accountability and recognition of the harm done to the victim as well as the community. Weighing all those factors in the balance with the other heads of consideration I have come to the view that firstly that the gravity of the conduct within the commission of this offence and the level of moral culpability which is above the mid-range cannot be met by a sentencing outcome that results in an Intensive Corrections Order. The offender is not suitable for community service thereby affecting the degree of punishment that might otherwise have formed part of the conditions of an Intensive Corrections Order if the Court was persuaded as to its suitability as a sentence. Further there is insufficient evidence before me of a mental issue requiring attention in a community setting. Even if that were the case there is nothing to suggest that such a need should it be established as existing could not be met during a period of parole.

26. It is my view the appropriate sentence of full time imprisonment for this conduct, after applying the discount for the utilitarian value of the plea and balancing the other mitigating factors, would be one of imprisonment for a period of 18 months. However there are two other factors that need to be addressed. In accordance with section 47(3) of the Sentencing Act the Court must take into account any period of time spent in custody referrable to the offence in question. In these proceedings I note the offender was in custody from 18 February 2018 until 9 March 2018, a period of 19 days. The sentence ultimately imposed should be backdated to reflect this period.

27. Secondly the bail conditions upon which the accused was released were particularly onerous, effectively in the nature of home detention. The sentence should be adjusted to reflect the quasi custodial nature of those restrictions but this should not operate to make the resultant sentence inconsistent with the seriousness of the offending.

28. For the offence of Assault Occasioning Actual Bodily Harm in Company the offender is convicted and sentenced to imprisonment for a minimum period of 8 months with an additional period of 6 months during which he may be released on parole subject to supervision by Community Corrections and the other standard conditions of parole. If released to parole the offender is to participate in such programs as considered appropriate by Community Corrections, including attendance upon and treatment in respect of any diagnosed mental condition. Taking into account the period of pre-sentence custody the sentence is to commence from 24 January 2019. The offender will be eligible for parole on 24 September 2019. The sentence will expire on 24 March 2020.

29. There remains the sentence to be imposed in relation to the unrelated offence of Possess a Prohibited Drug. In light of the sentence of full time custody imposed for the more serious offence and having taken into account the factors relevant to that offence there is little purpose in imposing what would be in the ordinary circumstance a monetary penalty. The offender for the offence of Possess a Prohibited Drug is convicted. The matter is dealt with pursuant to section 10A of the Sentencing Act with no additional penalty.

Judge Graeme Henson AM

Chief Magistrate

Downing Centre Local Court

12 February 2019

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Decision last updated: 18 March 2019