Director of Public Prosecutions v Rajic
[2017] VCC 1019
•12 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-17-00027, CR-17-00028, Case No. CR-17-00029, CR-17-00030, AP-14-2886
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Zdravko RAJIC, Tyson FOLINO, Stephen SPITERI |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2017 | |
DATE OF SENTENCE: | 12 July 2017 | |
CASE MAY BE CITED AS: | DPP v Rajic & Ors | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1019 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated Burglary – Assaulting a Police Officer in the Due Execution of Duty – Possessing Firearm Whilst Prohibited – Possessing Unregistered Handgun – Contravention of a Community Corrections Order
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Rajic: Total effective sentence of 4 years’ imprisonment.
Spiteri: Total effective sentence of 6 years’ imprisonment.
Folino: Total effective sentence of 7 years 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Hamill | Office of Public Prosecutions |
| For the Accused | Ms N Kaddeche for Rajic (Plea) Ms L Warren for Rajic (Sentence) Mr A Furstenberg for Folino Mr D Dann QC for Spiteri (Plea) Mr H. Rattray for Spiteri (Plea and Sentence) | Leanne Warren & Associates Furstenberg Law Balmer and Associates |
HER HONOUR:
1 Stephen Spiteri, Tyson Folino and Zdravko Rajic, on Indictment No.C1610576, which I will refer to as “the Truganina indictment”, you have each pleaded guilty to one charge of aggravated burglary at Truganina on 12 February 2016. In addition, you, Stephen Spiteri, have pleaded guilty to assaulting a police officer in the due execution of duty on that day. Your role in the aggravated burglary, Mr Spiteri, is particularised as one of entering the building as a trespasser with intent to steal and at the time, having a firearm with you, and knowing that someone was present, or being reckless as to whether a person was present in the house. On the other hand, the aggravated burglary charge which relates to you, Mr Folino and Mr Rajic, is Charge 2, which pleads that each of you entered the building as trespasser with intent to steal and knowing that a person was present, or being reckless as to whether a person was present in the house.
2
Tyson Folino, you have also pleaded guilty, on Indictment No.G12034353, which I will refer to as “the Wyndham Vale Indictment”, to the following offences which occurred at Wyndham Vale on 25 July 2016: Aggravated burglary; possess firearm whilst prohibited; possess a general category handgun which was unregistered; and assaulting the police officer in the due execution of duty. The aggravated burglary is pleaded as entry by you into the building at
45 Brougham Avenue, Wyndham Vale, as a trespasser with intent to steal and at the time of entering having a firearm.
3 In addition, you Mr Folino, have pleaded guilty to four summary charges of trespass (Charges 8,9,10 and 11), and one charge of commit indictable offence whilst on bail (Charge 12).
4 Mr Rajic has also pleaded guilty to one charge of a contravention of a CCO, but I will return to that later.
5
The circumstances of the offending of each of you is set out in full in the amended crown opening on the plea, which was tendered at the plea hearing and I sentence you all on the basis of the facts contained in that document[1].
I will briefly summarise that offending.
[1] Exhibit 1
6
On 12 February 2016, you all arrived, by car bearing false registration plates, at a house in Truganina, in which a hydroponic cannabis crop was being cultivated in two rooms. You cut the wire to a CCTV camera at the property.
A neighbour saw you doing this and rang police. The occupant of the house, Mr Hua, was woken by his dog barking. One of you entered the hallway and yelled at Mr Hua to quieten his dog, then struck the dog with a metal object.
Mr Hua picked up his dog and sat on a chair, guarded by one of you. The other two of you then then entered the garage. You, Mr Spiteri, had with you a loaded nine-millimetre semi-automatic hand gun, although neither of you, Mr Rajic, or you, Mr Folino, were aware of this. All of you entered with knowledge, or were reckless as to Mr Hua’s presence. One of you then asked Mr Hua for the keys to his motorbike, while another of you took two phones from the lounge. You,
Mr Spiteri, were later found in possession of Mr Hua’s wallet, while you,
Mr Folino, were found in possession of Mr Hua’s mobile phone.
7
Two police officers attended at the property and you all tried to flee. You,
Mr Spiteri, went first, holding a gun in your hand. This is the first time you,
Mr Folino and you, Mr Rajic, became aware of the presence of a firearm. Acting Sergeant Fox approached you, Mr Spiteri, and you raised the gun towards
Mr Fox’s torso for a short period of time, before throwing it on the ground. This is the subject of Charge 3.
8
As you threw the gun down, Mr Fox tackled you to the ground and handcuffed you. You, Mr Folino, and you, Mr Rajic, scaled the fence and ran across
a number of properties, before hiding in a storm water drain. You were both arrested by police a short time later.
9 A search of the property, which was Mr Hua’s residence, revealed two rooms set up for hydroponic cultivation of cannabis. Mr Hua told police he was growing the crop to repay a gambling debt. He told police he found your offending very traumatic.
10
You, Mr Rajic, and you, Mr Spiteri, made “no comment” records of interview. You, Mr Folino, denied the offending and you were released on bail on
17 February 2016.
11
On 25 July, 2016, whilst on bail in relation to the Truganina offending, you,
Mr Folino, attended at 45 Brougham Avenue, Wyndham Vale, at 7.15 am, in
a stolen vehicle being driven by your co-offender, Stacey Fernandez. At that address, you got out of the car, put on dark clothes, a black beanie and gloves, and carried a gun, which was not loaded, into the house. There was no one home (Charges 1, 12). There was a sophisticated hydroponic cannabis set up in almost every room. Your co-offender was revving the car engine and sounding the horn outside and one of the neighbours called police. Police arrived and challenged your co-offender, who refused to provide identification and drove away. The two officers, including Mr West, went to the back of the house. You kicked the door a few times, yelling at the police officers to "back off".
12 When you, Mr Folino, exited the back door of the house in an attempt to escape police, you waved a small silver handgun at both police officers at shoulder height. This is the subject of Charge 4. Police officers moved back and called for assistance and went to the front of the house to warn bystanders that you had a gun. One of the officers, at whom you waved the small silver handgun, was Mr West and I will return to his impact statement shortly.
13
You then jumped the fences, Mr Folino, into No 47 Brougham Avenue and then
No 49 Brougham Avenue. You entered No 49 and hid in the en suite shower. The occupant ran outside and alerted police. You then jumped the fences into No.51 and No.53 Brougham Avenue. You entered the house at No.53 and asked the occupant to hide you in the shower in return for $2,000, but he refused and asked you to leave. You then hid in the roof of his house and were found by police at about 11 am. You were arrested by police and taken to the police station, where you gave a “no comment” record of interview.
14 At the time of the offending, you were a prohibited person within the meaning of the Firearms Act because, in the previous five years, you had served a term of imprisonment for an indictable offence and had been subject to a community corrections order, with a supervision condition attached. The firearm you had with you when you entered the Wyndham Vale property, which was later found in a neighbouring garden, was not registered. Your co-accused, Stacey Fernandez, is to stand trial on 5 February 2018 on aggravated burglary and other charges.
15 Both the Truganina matter and the Wyndham Vale matter resolved, in relation to each accused, on the first day of the contested committal for the Truganina matter, before any evidence was called.
16 You, Mr Spiteri, have pre-sentence detention of 213 days, not including today. You, Mr Folino, have pre-sentence detention of 358 days, not including today. You, Mr Rajic, have 133 days of pre-sentence detention, not including today. Ancillary orders are sought against each of you for disposal of various exhibits seized and forfeiture of the guns and magazine and other items seized. Through your counsel, you have each indicated that you do not oppose the making of these orders and I will therefore be making them today.
17 The prosecution tendered Victim Impact Statements from police members Patrick West and of Benjamin Fox, and these were read out in court. Mr Fox attended at the Truganina property on 12 February 2016 and you, Mr Spiteri, raised a gun towards his torso. He feared he was going to be shot and killed and has continued to experience flashbacks, hypervigilance and daily anxiety, sleep disturbance requiring medication and consequential fatigue. He has withdrawn from family and friends and is suspicious of everyone who passes his home. His work performance has been affected by his symptoms, as has his family life.
18 Mr West stated in his Victim Impact Statement that he was very emotionally shaken at the time and feared for his life when you, Mr Folino, waved the gun at him during the Wyndham Vale incident. He was affected for a number of days by emotional strain caused by the incident and had some psychological counselling to help him deal with its impact.
19
I now turn to the personal circumstances of each of you. I turn first to you, Mr Rajic. Your counsel tendered a number of documents which I have considered. You were born in Australia to Croatian parents. You struggled academically, but excelled at soccer. Your sporting prospects ended after you broke your leg. You left school at 17. When you were 17 and in Year 10, your parents decided to return to Bosnia for a holiday. You and your brother became caught up in the civil war there and fought in the militia. You witnessed some horrible scenes there. When you returned to Australia, you were emotionally disturbed and unable to work for about three years. You began to abuse alcohol and stimulants, including methamphetamine. You also gambled. However, you married in 2005, bought some real estate and worked as a painter. You had
a daughter in 2008. You did not offend between 2004 and 2009.
20 By 2009, your ice addiction gripped you and you commenced drug-related offending. You were also gambling excessively. By 2012, you had lost everything, divorced your wife and moved back in with your parents. Your mother died in April 2017, while you were in custody, although you were able to see her before she died. Your time on remand thus far is the longest time you have ever been in custody.
21
Forensic psychiatrist, Associate Professor Carroll, reported on 12 November 2015 in relation to other matters, that your traumatic experiences in Bosnia have resulted in symptoms which meet the criteria of post-traumatic stress disorder, which was both chronic and severe and required evidence-based sustained trauma-focused therapy, including treatment with anti-depressants from
a specialist. He noted that you were diagnosed with anxiety, depression and substance disorder a number of years ago and had a few sessions of counselling in 2013. Whilst on bail, between September and October 2014 and again in April 2015, you saw a psychologist at the Innesfree Rehabilitation Centre, where you received cognitive behaviour therapy. You have funded your own in-patient rehabilitation on three occasions, the last of which was in May this year. Dr Carroll also diagnosed you with an ongoing substance abuse disorder.
22 Your counsel noted that the time you have spent on remand is the longest you have ever been in custody. It was also noted that your relevant offending commenced in 2009 when you were 30 years old, and that there was a significant gap in offending in the five years leading up to 2009.
23 In mitigation, your counsel relied on your early plea of guilty, which was indicative of your acceptance of responsibility, your willingness to facilitate the course of justice and which had utilitarian value. She tendered a bundle of documents, including certificates of courses you have completed whilst on remand, letters of confirmation concerning your in-patient rehabilitation and counselling at Innisfree and a letter from you expressing remorse for your conduct. I have taken these into account. In relation to parity, she submitted that you had no interaction with Mr Hua at all. I note that I am unable to reach this conclusion, given the fact that the summary of prosecution opening does not specify which of you interacted with Mr Hua. In relation to the second breach of the CCO, which you admitted, she submitted that your non-compliance and the current further offending, related to your relapse into drug use.
24 Your counsel conceded that an immediate term of imprisonment for your current offending is appropriate, but submitted that it would be appropriate to couple this with a lengthy CCO and with a fine on the contravention.
25
The prosecution acknowledged that you are to be sentenced for the aggravated burglary on the basis that you had no knowledge of the presence of a firearm. It was submitted that you have relevant prior convictions, comprising three for burglary and two for possessing prohibited weapons, and that since 2009, you have received every possible opportunity by the courts to address your addiction. In almost all cases, apart from successfully completing a CCO in 2010, you have breached court orders, including an Intensive Corrections and Community Corrections Orders. In the circumstances, it was submitted that
a further community corrections order would be inappropriate and that the appropriate disposition was the imposition of a term of imprisonment and
a non-parole period.
26 I turn to your personal circumstances, Tyson Folino. These were set out in full in the psychological reports tendered at the plea hearing and I summarise them briefly. You are 29 years old, married with two young children aged four and seven months. You have a brother aged 23 and some half-siblings. You were an average student, but completed Year 12 in 2005, with an administrative pass. Your parents divorced and re-partnered, but you got on well with your step-father, an engineer, who taught you how to shoot on the family farm.
27
After school, you left home, completed a rendering apprenticeship and worked in rendering, tiling and stonemasonry. You have been with your wife for about ten years and married in 2012. Your main pursuit was competitive kickboxing, at which you excelled, to the point where you represented Victoria. Your parents did not approve of the sport. You were injured at an international tournament in Thailand in 2010. You suffered a serious concussion at the competition and shortly thereafter, when competing in Sydney, you suffered
a type of brain haemorrhage. You retired from the sport on medical advice.
28 After retiring from kickboxing, you started working at the casino, replacing stonework. You were working long hours and were introduced to methamphetamine use through work. You developed a severe physical addiction to the drug and your criminal history followed. When not working, you spent a lot of time gambling. Your wife returned to live with her parents when you were charged with these offences.
29 Although your counsel tendered three psychological reports, reliance was placed primarily on the most recent one, dated 23 June 2017, by Patrick Newton, which deals with your current offending. I note for the sake of completeness, that in her report dated 14 October 2014, forensic psychologist, Pamela Matthews, assessed you as being of low borderline intelligence. She also assessed you as presenting with the lowest level of cognitive functioning, which suggested both a developmental learning component, an additional overlay of deficits associated with an acquired brain injury. She felt that your presentation of immaturity was consistent with your cognitive defects. She also felt that you also suffered with a persistent depressive disorder since the end of your kick boxing career and that this condition allowed you to spiral downwards into substance abuse and unsavoury friendships and lifestyle.
30 I note that neuropsychologist, Dr Linda Borg, assessed you in March 2016. She reported findings which included that you had adequate literary skills and generally average intelligence. However, she found also that you had slow cognitive processing, which was likely to have resulted from concussive episodes and a closed head injury, suffered when kickboxing in 2010. She also felt that you were suffering as well from a depressed mood, which further compromises your cognitive abilities.
31 Mr Patrick Newton reported on 23 June 2017, taking a history from you, that within months of becoming addicted to methamphetamine, you were consuming three and a half grams per day, which he described as an extreme level of consumption. You continued your drug use, even while on CISP bail and up until the time of this offending. You told him you had been abstinent since being remanded on these matters and have completed a drug education program. You expressed remorse to him for your offending, although you distinguished between harm done to “civilians” and harm done to those in crop houses, whom you described as “in the game”. You said that you went along with others to the first aggravated burglary and then got selfish and committed the second one on your own.
32 Mr Newton's findings were similar to those of Dr Borg and Ms Matthews. He did not consider your cognitive defects to be extreme and considered that there was little to suggest that they would have materially affected your ability to reason about your offending conduct or to exercise appropriate restraint or judgment in relation to your actions. In spite of your stoic exterior, he found you to be immature, with poor self-esteem and considerable insecurity. He also found you to be impulsive. The effects of your brain injury are that you learn poorly and slowly from negative consequences, but have a low tolerance for frustration or delay.
33 Mr Newton found that you are in a period of enforced remission from a severe methamphetamine use disorder. You told him you wanted to stop drug use permanently. However, he noted that you have only participated in very limited treatment thus far to address your drug addiction. You expressed scepticism to him about the benefits of treatment and were not interested in discussing options for further treatment and support following your release. Mr Newton felt that your limited insight places you at risk for relapse to drug use upon release and that drug use is the biggest risk factor for further offending. He recommended that you participate in intensive, supervised education and drug counselling in the community and in a specialist program for violent offenders prior to release.
34 Mr Newton was quite guarded about your prognosis. He felt that your period of enforced abstinence while on remand has given you the chance to gain insight into the need for personal change and that your rehabilitative needs might best be met by a relatively lengthy period of supervision and support in the community.
35
You have prior convictions. Your prior relevant prior offending comprises convictions in 2013, 2014, and 2015, for possessing prohibited weapon without approval; in 2011 and 2015 for burglary; and in 2015 for assault police officer. You have other prior convictions for dishonesty and driving offences. For example, in October 2014, you were sentenced to a two year community corrections order by Coghlan J in the Supreme Court for attempting to pervert the course of justice and possession of a firearm. In his sentencing remarks, his Honour Coghlan J noted that you had previously breached a number of community corrections orders and had been assessed as unfavourable for
a further community corrections order. However, in the circumstances of the case before his Honour, his Honour imposed a further community corrections order.
36 Your counsel indicated that you have family support from your wife, father and step-mother, who were in court during the plea hearing. You have some solid work skills and years of employment between the ages of 19 and 24. Your counsel conceded that your offending is serious, that you committed the aggravated burglaries without necessarily expecting that anyone would be present; that your trespassing offences would have been frightening for the neighbours, but did not involve any threat from you; and that the height of any aggression displayed by you was the momentary brandishing of an unloaded weapon when trying to avoid capture during the Wyndham Vale incident.
37 Your counsel indicated that the psychological reports were tendered to demonstrate how you came to offend and were not relied upon to establish any Verdins factors. Your counsel noted in respect of the time spent on remand thus far, that you have been in the Swallow Unit, with limited access to courses and only one hour per day in the yard.
38 It was conceded that the second aggravated burglary was committed while you were on bail and warranted some cumulation. It was conceded that a sentence of a term of imprisonment was inevitable, but it was submitted that there should also be a long period of supervision. It was also conceded that your prospects of rehabilitation must be viewed as guarded.
39
Again, whilst it was conceded that the waving of a gun at police by you was very serious, it was noted that the gun was not loaded. In relation to the Truganina matters, it was Mr Spiteri, who unbeknown to you, entered the premises with
a firearm. In relation to the trespass charges, it was submitted that these ought to be treated as part of the sequelae of the main offending and attract substantial, if not entire, concurrency with the sentence imposed for the aggravated burglary. It was submitted that you ought not be double or triple punished in respect of having committed the Wyndham Vale offences while on bail and having been charged with committing an indictable offence while on bail.
40 The prosecution conceded that the two aggravated burglaries committed by you were of different types. In the Wyndham Vale matter, nobody was present in the crop house when you entered and the gun was no loaded. However, the aggravating factor is that you committed the second aggravated burglary only one month after being released on bail for the first aggravated burglary. It was submitted that there was a presumption of cumulation under s.16 of the Sentencing Act[2] in respect of the sentence for this second aggravated burglary. Moreover, your offending overall breached both community corrections orders that you were on at the time. It was conceded, of course, however that double punishment was to be avoided. Finally, the prosecution noted your attitude towards drug treatment as expressed to Mr Newton and submitted that this limited the confidence one could have in your prospect for rehabilitation. The prosecution submitted that you should be sentenced to a term of imprisonment with no community corrections order.
[2]1991 (Vic)
41
I turn to your personal circumstances, Mr Spiteri. You are now 26 years old. Your parents were in court to support you on the plea. Your father is
self- employed in an excavation business and your mother works full-time in
a school canteen. You left school in Year 9 and then completed a four year apprenticeship as a diesel mechanic in 2010. You worked at the same place for a further year, but suffered a fractured skull in a serious motorcycle accident in late-2011 and so did not start the new job you had lined up. Instead you began to use ice extensively. Most of your offending has occurred since this time. The offending includes drug possession, driving offences and dishonesty offences. The relevant prior offending includes possessing a gun and ammunition without a licence in September and November 2014 and committing indictable offences while on bail in November 2014.
42 According to your counsel, your motivation for the Truganina offending was your understanding that cannabis was being grown there and you went there to steal it. You were using ice at the time. You were paranoid and had a gun with you for this reason. You used it during the offending, raising it towards Officer Fox, which would have caused him fear, but did not make verbal threats to use it. You have been in custody since around 10 July 2016, although the entire period is not referable to the current offending. You were bailed to the CISP program between March and April 2016, but continued to take ice.
43 Whilst in custody, you have completed a number of courses and I have perused the bundle of certificates tendered on your behalf. The courses include Managing Ice Addiction, Managing Cravings, Managing Loss, Managing Emotions, Managing Sleep, Managing Worry. You have also been working 30 hours per week as a unit billet since May 2016. You also provided a recent negative urine screen, dated 8 May 2017.
44 Your counsel relied on a number of matters in mitigation, your early plea of guilty, which is indicative of remorse and has utilitarian value; your relative youth and your positive prospects of rehabilitation, given the efforts made thus far in custody to deal with your addiction. In addition, you have family support.
45
In examining the table of cases decided by the Court of Appeal from 2007 to the present, where aggravated burglary was the principal offence, your counsel submitted that, as the gun held by you was not used on entry into the property, nor fired, that its use was short lived and that it was thrown away with no verbal threat being made, your offending should be seen as falling within the
mid-range of sentences set out in the schedule. Although the use of the gun was the factual foundation of the assault charge, it was submitted that its use was part of the one episode of offending and therefore there should only be modest cumulation in relation to the sentence imposed on the assault charge.
46
The prosecution submitted that the aggravating factors in your case were that the gun was loaded and that you had prior convictions for the use and possession of firearms. Secondly, that you have had several failed attempts at community corrections orders. Thirdly, that your prospects of rehabilitation are not good, given that you have failed to comply with previous community corrections orders; that you breached a current community corrections order by the current offending; and that there is a subsequent matter involving a further aggravated burglary to be heard in this court in October. The prosecution submitted that you should be sentenced to a term of imprisonment and
a non-parole period, with no attached community corrections order.
47 In sentencing you, Mr Spiteri and you, Mr Folino, I have taken care to avoid any risk of double punishment in respect of the aggravated burglary and assault charges.
48
I turn first to the offence of aggravated burglary, which carries a maximum penalty of 25 years imprisonment. In assessing the gravity of this offence,
I take into account that each of you committed the offence with the intention of stealing goods, namely cannabis crops. The Truganina aggravated burglary was planned and committed in company at 1 pm. You had disguises with you. There was a person present, Mr Hua, the owner and occupant of the house. To the extent that Mr Hua was growing the cannabis crop himself, or even if he were the crop sitter, he was sitting in his own home and a soft target who was highly unlikely to report the crime to police and but for your drawing the attention neighbours to your activities, the crime may have gone unreported.
49 You, Mr Spiteri, had a loaded semi-automatic hand gun with you, although neither of your co-offenders knew this at the time of entry into the house. That gun was not produced by you, Mr Spiteri, during the aggravated burglary.
50
The Wyndham Vale aggravated burglary was committed by you alone,
Mr Folino. You had planned it. You arrived at the house at 7.15 am in a stolen car driven by an associate and donned a dark top, beanie and gloves. You were carrying an unloaded hand gun. There was no one present in the house.
51
In the hierarchy of seriousness of offences of this type, where the most serious cases involve confrontational aggravated burglaries and the least serious involve spontaneous encounters, the Truganina offending lies squarely within the mid-range in terms of seriousness. Whilst it might be said that the Wyndham Vale offending lies slightly below this because there was nobody present in the house, the offence was committed by you alone, Mr Folino, and the gun was not loaded. You, Mr Rajic, and you, Mr Folino, have relevant prior convictions for burglary. You, Mr Spiteri, have a relevant prior conviction for possessing gun and ammunition without a licence and you, Mr Folino, have
a relevant prior conviction for possessing a prohibited weapon without approval. In addition, you, Mr Folino, have a prior conviction in 2015 for assaulting a police officer.
52 I turn to the offence of assault of a police officer in the execution of duty, which carries a maximum penalty of five years imprisonment and which concerns the conduct of you, Mr Spiteri, at Truganina, and you, Mr Folino, at Wyndham Vale. You, Mr Spiteri, raised a loaded handgun towards Mr Fox’s torso for a short time, before discarding it near the fence. Mr Fox then tackled you to the ground. When you pointed the gun at him, Mr Fox feared that he was going to be shot and killed, and has suffered persistent hypervigilance, sleep disturbance, anxiety, flashbacks since the incident. His symptoms have affected his family life and his work performance.
53 You, Mr Folino, waved a small silver, unloaded handgun at two officers who were trying to apprehend you. One of those officers, Mr West, feared for his life at the time and was very emotionally shaken for a number of days after the incident and required psychological counselling. I consider the offending of each of you, Mr Spiteri and Mr Folino, to be serious examples of this type of offence.
54 On the material before me, I note that apart from the taking of responsibility reflected in the pleas of guilty, you, Mr Rajic, have expressed remorse for your offending in a letter to the court and you, Mr Folino, have expressed some remorse to the psychologist, Patrick Newton, for your offending, although you appear to be minimising the gravity of offending in relation to crop-houses on the basis that the people involved it, or those present, are not “civilians”, but are rather “in the game”.
55 You, Mr Rajic, are 38 years old and your current offending represents a serious escalation in your criminal history. In addition, by your offending, you have breached the second CCO I imposed upon you on the 26 November 2015. This breach is based on the failure to comply with the requirement to attend drug treatment, as well as on your current offending. In the circumstances, given your age, it is difficult to be anything but guarded about your prospects of rehabilitation.
56
You, Mr Folino, are 29 years old. You have prior convictions for possession of prohibited weapons, burglary and assault police officer. Whilst on bail, six months after participating in the Truganina aggravated burglary in company where a person was present and where one of your co-offenders produced
a loaded firearm when trying to flee the scene, you planned and executed an aggravated burglary, having an unloaded gun with you. This represents an escalation in your offending. I acknowledge that whilst in custody, you have completed a number of courses designed to help you deal with your addiction. I acknowledge that you are a relatively young man, have young children and
a supportive family. Again, however, it is difficult on the material before me to be anything but guarded about your prospects of rehabilitation.
57 You, Mr Spiteri, are 26 years old, with no prior convictions for offences of violence. However, it is relevant to your prospects of rehabilitation that you have failed to complete previous court dispositions, that you breached a current community corrections order by the current offending and that you have subsequent matters, involving another aggravated burglary and further firearms offences, which are to be the subject of a plea in this court in the near future.
58
In sentencing each of you, I have had regard to the seriousness with which Parliament views the offence of aggravated burglary, as well as the importance of the sentencing principles of denunciation, just punishment, general and specific deterrence, as well as protection of the community and rehabilitation.
I consider that the offending of you, Mr Spiteri and you, Mr Folino, in raising
a gun towards police as they sought to apprehend you in the aftermath of the aggravated burglaries committed by you, is a serious example of the offence of assault a police officer in the due execution of duty. In addition, I have had regard to the principles of proportionality, parsimony, totality and parity. I have taken into account all of the matters put by your counsel on your behalf, particularly your personal circumstances, remorse, where appropriate and pleas of guilty.
59 Would you all please stand.
60
On Indictment C1610576, Charge 1, aggravated burglary, Stephen Jake Spiteri, you are convicted and sentenced to four years and six months’ imprisonment. This is the base sentence. On charge 3, assaulting a police officer in the due execution of duty, you are convicted and sentenced to three years’ imprisonment. I direct that 18 months of the sentence on Charge 3 be served cumulatively on the base sentence. The total effective sentence is that of six years, with a non-parole period of four years. There are 213 days pre-sentence detention, not including today, and I direct that this period be entered into the court records and deducted administratively. I indicate, pursuant to s.6AAA of the Sentencing Act[3], that but for your plea of guilty, I would have imposed
a sentence of nine years’ imprisonment.
[3]1991 (Vic)
61 On Charge 2 of the same indictment, aggravated burglary, you, Zdravko Rajic, are convicted and sentenced to four years’ imprisonment, with a non-parole period of two years. There are 133 days of pre-sentence detention, not including today, in relation to these matters and I direct that this period be entered into the court records and deducted administratively. I indicate that, pursuant to s.6AAA of the Sentencing Act[4], that but for you plea of guilty, I would have imposed a sentence of five years’ imprisonment on Charge 2.
[4]1991 (Vic)
62
By your offending, you breached the community corrections order I imposed upon you most recently on 26 June 2017. You have previously also breached the CCO that I imposed upon you on 30 April 2015, for the same offending, which had been dealt with by the Magistrates Court on 9 December 2014. The Corrections report relating to this most recent contravention, documents your failure to engage with the community corrections order and concludes that you are unsuitable for any further community based order. In the circumstances,
I propose to cancel the community corrections order and re-sentence you on the summary offences. I note that Charges 3, 11 and 12 are withdrawn.
I propose to make the following orders: On Charges 1,2,4 through 10, 13 and 14, you are convicted and sentenced to three months’ imprisonment, to be served concurrently with the sentence imposed upon you in respect of the indictable offences being dealt with today and I fine you $1,000 on the charge of contravening the community corrections order.
63 On charge 2 of the same indictment, aggravated burglary you, Tyson Anthony Folino, are convicted and sentenced to four years’ imprisonment.
64
I turn to Indictment G12034353, which relates to you alone, Mr Folino.
On Charge 1 of that indictment, aggravated burglary, you are convicted and sentenced to five years' imprisonment. This is the base sentence.
On Charge 2 of this indictment, possessing firearm whilst prohibited and
Charge 3 of this indictment, possessing an unregistered handgun, you are convicted and sentenced to an aggregate sentence of three months' imprisonment. On Charge 4 of this indictment, assaulting a police officer in the due execution of duty, you are convicted and sentenced to two years’ imprisonment. I direct that 12 months of the sentence on Charge 4 is to be served cumulatively upon the base sentence.
65 I turn to the related summary charges. On Charges 8, 9, 10 and 11, you are convicted and sentenced to an aggregate sentence of two months’ imprisonment. On charge 12, commit indictable offence whilst on bail, you are convicted and sentenced to one months’ imprisonment.
66 I turn to the question of cumulation as between the two indictments. I direct that 18 months of the sentence imposed on Indictment C1610576, that is the Truganina indictment, is to be served cumulatively upon the sentence imposed on Indictment G12034353. The total effective sentence is one of seven years' six months' imprisonment, with a non-parole period of five years. There are 358 days of pre-sentence detention, not including today and I direct that these be entered into the court records and deducted administratively. I indicate, pursuant to s.6AAA of the Sentencing Act[5], that but for you plea of guilty, I would have sentenced you to ten years’ imprisonment.
[5]1991 (Vic)
67 Now, are there any matters mathematical that need to be dealt with?
68 MS HAMILL: Your Honour, just in relation to Mr Rajic's re-sentence regarding the community corrections order.
69 HER HONOUR: Yes.
70
MS HAMILL: In respect of some of those offences, there's only a fine available. And also in relation to the offence of fail to stop vehicle on police request, as
I read the section, Your Honour, a CCO was not available to be imposed for that offence at all, because the maximum penalty is by penalty units. And in relation to that charge, I would submit that there ought be no penalty imposed in relation to that offence at all.
71 HER HONOUR: Right, I was not addressed, I must say, by Mr Rajic's counsel at all in relation to the detail of those calculations.
72 MS HAMILL: No, Your Honour. To be fair to Mr Rajic's counsel, it appears that the CCO was imposed on an appeal, and a breach occurred, and on neither occasion was Your Honour's attention drawn to the fact that a CCO was not available to that offence.
73 HER HONOUR: All right. Let me hand down this table that we had prepared just to deal with this. Can you just mark off the ones for which only a fine is available.
74 MS HAMILL: Yes, Your Honour.
75
HER HONOUR: And perhaps show it to his counsel and I will take back what
I have said in relation to imprisonment. You can take a seat, gentlemen, while we sort this out. Thank you.
76 MS WARREN: I would agree with those submissions, Your Honour.
77 MS HAMILL: Before I hand it up, Your Honour, I will just explain. Charge 5, which is fail to stop vehicle upon police request, that's the offence for which the CCO should not have been imposed and so it's proposed that there be no penalty imposed in relation to that.
78 HER HONOUR: Yes.
79 MS HAMILL: Charges 7 and 13, which are use unregistered vehicle and possess Schedule 4 poison, only carry with them fines.
80
HER HONOUR: All right, so, I will simply amend what I have said in relation to the disposition for the breach of the community corrections order and
re-sentencing, you, Mr Rajic. I will omit the reference to Charge 5 in the narration of the charges for which you are convicted and sentenced to a term of imprisonment. I will also remove reference to Charges 7 and 13, for which
a term of imprisonment as a penalty is not available. So that will leave us with charges 1, 2, 4, 6, 8 through 10, and 14, being the ones upon which that penalty of imprisonment is imposed.
81 On Charges 1, 2, 4, 6, 8 through 10, and 14, you are convicted and sentenced to three months’ imprisonment.
82 HER HONOUR: I will make those amendments. Otherwise, were there any other issues about the composition?
83 MS WARREN: No, Your Honour.
84 MS HAMILL: No, Your Honour. Just in relation to those matters that carry the fines, it may be that Your Honour considers it appropriate to convict and discharge, in relation to those.
85 HER HONOUR: On Charge 5 you are convicted and discharged. Charges 7 and 13 will carry the fine of $150 together. Thank you.
86 MS HAMILL: If I can file the original Victim Impact Statement of Patrick West.
87 HER HONOUR: Yes.
88 MS HAMILL: The Victim Impact Statement of Acting Sergeant Fox, I'm told was sent in the mail to the informant, but it hasn't arrived. It may be that it's been lost in the mail. If that is the case, then we can arrange for a further statement to be signed, if Your Honour requires it.
89 HER HONOUR: I do not require it. I would be happy to have a copy tendered, unless there is any objection.
90 MR RATTRAY: No, and it probably only concern me, Your Honour, and there's no objection to that.
91 MS HAMILL: I also have copies of the relevant disposal and forfeiture orders.
92 HER HONOUR: Yes.
93 MS HAMILL: One of them has been amended with reference to the forfeiture of Mr Folino's wallet, so that amendment has been made by hand.
94 HER HONOUR: Thank you.
95 MS HAMILL: If I can also indicate, Your Honour, I don't believe that I alerted the court to this on the last occasion, however the Crown wishes to make application for forfeiture of the Nissan X-Trail which was used to travel to the scene of the Truganina offending. There is a difficulty, in the sense that the police have not been able to track down the registered owner of the actual owner of that vehicle, who needs to be given notice of the application. In the circumstances, the Crown proposes that the application be made today by me and be adjourned to a date in approximately one months' time, to enable police to continue to make those enquiries. I understand that that course is not opposed by any of the accused.
96 HER HONOUR: All right. So I will just - - -
97 MR RATTRAY: Just on that, Your Honour.
98 HER HONOUR: Yes.
99 MR RATTRAY: My client has no interest in that vehicle and as such, I would submit that he's not a party to that application. It is somewhat unusual, given that the application is brought in respect of a matter where he is a party.
100 HER HONOUR: Yes.
101 MR RATTRAY: But my client certainly has no interest and would seek to make no comment, nor any submissions in respect of that application, so we'd certainly be content to have that application heard in our absence.
102 MR FURSTENBERG: Same position, Your Honour.
103 MS WARREN: And same position, Your Honour.
104 HER HONOUR: All right. In that case I will simply adjourn the further hearing of any application for any further disposal order for one month, noting that each of the accused does not seek to be represented or even notified of any further matters that relate to it.
105 MR RATTRAY: If Your Honour pleases.
106 MS HAMILL: Yes, Your Honour.
107 HER HONOUR: Since it is not going to be opposed, you do not need to come to court at all. You can file the material with my Associate.
108 MS HAMILL: Yes, Your Honour, I won't know what the attitude of the owner will be once he or she is found.
109 HER HONOUR: All right. I will just indicate that I have signed the forfeiture and disposal orders. Any other matters?
110 MR RATTRAY: No, Your Honour.
111 MS WARREN: No, Your Honour.
112 HER HONOUR: All right, thank you. Good, thank you.
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