Director of Public Prosecutions v Rakic

[2015] VCC 1346

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00922

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID RAKIC

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2015
DATE OF SENTENCE:	24 September 2015
CASE MAY BE CITED AS:	DPP v Rakic
MEDIUM NEUTRAL CITATION:	[2015] VCC 1346

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio	Office of Public Prosecutions
For the Accused	Ms D. Lamovie
Victoria Legal Aid

HIS HONOUR:

1David Rakic, in July 2014 you rented a room in St. Kilda.  You were working but at little money due to your problem using the drug Ice.  As a consequence you failed to pay your rent.  The manager of the rental accommodation re-let your room.  On 28 October 2014 you went to the office where the manager was working.  You took your steering lock, smashed the glass window near the front door and stormed into the office.  You followed the victim from the foyer into his office.  He locked his door but you kicked it in.  The victim picked up a chair to defend himself.  You swung your steering lock widely, hitting him on the forehead.  You then dropped the weapon and threw punches, connecting to his nose and eye area, eventually getting him to the ground.  Others who were in the office area bravely came to the victim's assistance and you were overpowered.  The police were called, you remained at the scene and were cooperative and were arrested when the police arrived.  While you were being held you told the victim you did what you did because you had been evicted, had lost your bond and as a consequence were living in your car.  The victim sustained cuts, bruises and grazes and was left with swelling, especially to his forehead. 

2Your violence was frightening.  The victim was well entitled to re-let your room and use your bond to cover the rent that you had failed to pay.  Importantly, he was entitled to be safe at his workplace, free from the sort of violent recriminations and retributions that you embarked upon.  As conceded by your counsel, the offending was serious.  Your use of a weapon adds to the gravity.  Fortunately for the victim and for you, the victim's injuries were not serious or long-lasting.

3You are now 36.  I have read the report of Mr Simmons, the psychologist, as to your personal circumstances and upbringing.  There is nothing of particular note that requires emphasis or mention.  However, in the past you have committed serious crimes.  You have many prior convictions including for violence and for having weapons, including three for armed robberies.  But they were many years ago.  It seems you were in trouble and before the courts in your late teens until about the age of 25.  You received a range of penalties including imprisonment.  You were given more lenient Community-based Orders directed at your rehabilitation and many of these were breached.

4You seem to have stopped offending in 2002, only to be back before the courts and in jail in 2006.  From then till now you have not been in any trouble.  I am told that you now have accommodation and have remained in regular casual employment.  These are two important matters providing you with stability and providing me with a degree of confidence that you can resume the lawful ways as you have had for the last 10 or so years.  Employment is particularly relevant as imprisonment may well see you lose your job. 

5The counsel relied on the Court of Appeal's recent guideline judgement in Boulton & Ors. v The Queen.  Her submission was a Community Corrections Order could adequately address all sentencing purposes, thus incarceration was unnecessary.  She emphasised what was made clear in the Court of Appeal that a Community Corrections Order can be simultaneously punitive and rehabilitative, unlike jail.  This is a case where under old sentencing regimes, seriousness of the offence would ordinarily give rise to serious consideration if not certainty of a term of imprisonment.  However, as was said in Boulton, "Community Corrections Orders may be suitable even in cases of relatively serious offending which might previously have attracted a medium term of imprisonment such as, for example, aggravated burglary, intentionally causing serious injury." The court went on: "Sentencing judges may find that in view of the objective gravity of conduct and the personal circumstances of the offender, a properly conditioned Community Corrections Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects for rehabilitation."

6I had you assessed for a Community Corrections Order and you were found to be suitable.  It was recommended that you undergo programs for treatment and rehabilitation for drug and alcohol problems and other programs to reduce your re-offending as well as being under supervision.  Mr Simmons also recommended anger management, which I agree is important given the circumstances of this offence.  I add Mr Simmons spoke of your remorse.

7I am satisfied that you have insight into your offending and are remorseful.  These are important matters if I am to give you another chance.  The key is, Mr Rakic, and you know this, that you remain drug-free.  Again, I am satisfied that you are motivated to remain drug-free.  Mr Simmons also emphasised this matter.  Employment is something that is important to your stability and ultimately your permanent reform.  As the Sentencing Act mandates I must endeavour to establish conditions that facilitate your reform.  In my view, those conditions, including you remaining able to continue with employment, does not mean that you will not have to do a significant amount of unpaid community work but it does mean that you will not be incarcerated thus ending your current work arrangements and stability.  I note the prosecutor contended that given the seriousness of this confrontational aggravated burglary, your pattern of violent offending and, it seems, violent offending when using drugs and your regular breach of court orders, immediate jail was required.  The prosecution allowed for one other alternative and that was a combined Community Corrections Order along with imprisonment.  I have given anxious consideration over the time to this alternative and you, Mr Rakic, are truly on the cusp.  But in the end I am not going to move to the punishment of last resort.  The important sentencing purposes of denunciation and deterrence, both to you and others, as well as your rehabilitation, can be properly met by a lengthy Community Corrections Order.  I intend to impose an aggregate term for these offences. 

8For committing the crimes of aggravated burglary and causing injury intentionally, I sentence you to an aggregate term of the three year Community Corrections Order with the following conditions.  You are to do 300 hours of unpaid community work, undergo assessment and treatment for drug abuse, undergo assessment and treatment for alcohol abuse and undergo treatment and rehabilitation involving programs which you will be directed to do to reduce your risk of re-offending, being in this area most important is anger management but that will be a matter for the Office of Corrections.  You are also to be under supervision.  As you will shortly hear, your plea of guilty has been given significant weight and your sentence would have been longer and of a different kind but for your plea of guilty.  So had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a term of 18 months' imprisonment together with a three year Community Corrections Order. 

9A document will be shortly produced setting out the conditions that I have just gone through, together with other mandatory conditions that apply to everyone.  If you sign, ultimately that document will bring the matter to an end. 

10MS DIPIETRANTONIO:  The only other matter, Your Honour, is the disposal order.

11HIS HONOUR:  Yes, we'll sign all those things.

12MS DIPIETRANTONIO:  Sorry, thank you.

13HIS HONOUR:  That's the only other order, is it?

14MS DIPIETRANTONIO:  Yes, Your Honour. 

15HIS HONOUR:  Mr Rakic, the order that I have put you on lasts for three years.  It goes from today, 24 Sep 2015 to 23 September 2018.  You are nearly 40.  The following conditions apply to everyone on a Community Corrections Order and apply to you.  You must not commit another offence for which you could be imprisoned during the time that the order is in force.  That, as you know, is almost every offence you can think of.  It does not mean that you will get imprisonment from a Magistrate but if it is an offence for which you could be imprisoned, it breaches this order and you will come back here, the mercy that has been shown to you, the second chance you have been given as it were, that will not be repeated.  You have to comply with obligations and requirements under the Sentencing Regulations that I am told is they need to take a photograph of you to know who you are when you go off to work, rosters and the like.  You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre within two clear working days.  Your Community Corrections Centre is down there at Werribee.  That is at 87 Synnot Street Werribee.  Go there within two clear working days and go through the process and so on.  You must let them know within two clear working days if you change your address or job.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions from the Office of Corrections.  They apply to everybody that is on a Community Corrections Order and they apply to you.  In addition, conditions that have been set up for you are that you must do this 300 hours on unpaid community work over the three years. 

16There is nothing voluntary about that, Mr Rakic.  You cannot turn up late for that and just say the trains were all over the place.  You have got to keep people informed of where you are, take into account that it might take you a little bit longer on public transport to get to places so that you are there at the time you have to be and you stay until you have to leave.  Get the 300 hours done and that is the punishment aspect of it.  Likewise, you have got to be under the supervision of the Community Corrections Officers, so they will want to see you, you have got to turn up for those appointments.  You also must undergo treatment and assistance for drug abuse and dependency as directed by them, undergo assessment and treatment for alcohol abuse or dependency as directed by the regional manager and to participate in programs that they direct you to do.  If you sign that, as I say, it brings your matter to an end. 

17Ms Lamovie, if you could take this down the back to him.

18MS LAMOVIE:  Yes.  He has signed the order, Your Honour.

19HIS HONOUR:  Thank you.  It went without saying, Mr Rakic, that the penalty of a Community Corrections Order was with conviction.  But I make it plain now.  You will get a copy of that and you are free to go.  Is there anything else?

20COUNSEL:  No, Your Honour.

21HIS HONOUR:  Thank you.  I thank counsel for their significant assistance in this matter.

22COUNSEL:  If Your Honour pleases.

23HIS HONOUR:  Mr Rakic can leave the dock.

24OFFENDER:  Thank you, Your Honour.  

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