Director of Public Prosecutions v Ristevski
[2012] VCC 1303
•13 August 2012
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00741
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE RISTEVSKI |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2012 | |
DATE OF SENTENCE: | 13 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Ristevski | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1303 | |
REASONS FOR SENTENCE
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Catchwords: Dishonesty offences-Damage offences-Assault offences-long term heroin addiction-significant criminal history-plea of guilty
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C.B. Hollingworth | OPP |
| For the Accused | Ms O.A. Trumble | X |
HER HONOUR:
1 George Ristevski, you have pleaded guilty to aggravated burglary which carries a maximum sentence of 25 years imprisonment; possessing an unregistered firearm while prohibited which has a maximum sentence of 15 years imprisonment; two charges of burglary; four charges of theft and two charges of criminal damage, offences which have a maximum sentence of 10 years imprisonment, and one of assault which has a maximum sentence of five years imprisonment.
2 You have also agreed to this court dealing with the charge of driving whilst disqualified and have pleaded guilty to that. That offence has a maximum penalty of 240 penalty units or two years imprisonment as it is an offence which you have committed before.
The offences
3 I sentence you on the basis of the opening which was read by the prosecutor (Exhibit A). I note that this summary is different from the witnesses’ accounts in the depositions in some details and I have been told that the summary is agreed between the prosecution and defence.
4 In brief on 9 December 2010 you entered commercial premises intending to steal (Charge 1) and stole money and gift cards from a staff member's purse (Charge 2).
5 On 14 December 2010 you entered another commercial premises intending to steal (Charge 3). You entered an office and from a handbag stole a wallet containing money and identification cards (Charge 4).
6 In 12 February 2011 you went to the unit where your partner then lived. You were not supposed to attend as there was an intervention order in place, but I am told that you were invited there and thought that the order had been removed.
7 I am also told by your counsel that you went there because your partner informed you that there was a problem between a neighbour and her son. Both the prosecution and the defence agree that there was a history of animosity between the neighbour Mr Jude and your partner and her son. They thought that Mr Jude had provided her teenage daughter with drugs and perhaps had also engaged in a sexual relationship with her. Mr Jude denied these allegations.
8 It is not necessary for me to decide if there is any substance to these allegations. The point is that you went to 71 Andrews Avenue in Reservoir supposedly to prevent your partner's son from making the tense situation worse. Instead you made it worse.
9 Shortly after 10.30 p.m. Mr Jude was at home at unit 3, 71 Andrews Avenue with a friend, and another friend Mr Furlong had left temporarily. You and your partner's son smashed in the front door of his unit and went in. You were armed with a golf club and intended to assault the people in unit 2 (Charge 5). You were abusive and threatening to the victims and stole items from the coffee table including money, a phone, alcohol and medication (Charge 6). You and your partner's son left the unit and met the friend of Mr Jude who had just returned. You hit Mr Furlong on the head while he was still in his car (Charge 7).
10 It appears from the depositions, and this is not controversial, that the police were called by Mr Jude and they attended at about 11.30 p.m. and spoke to the occupants of both units. I am told that you left the area.
11 You returned about five hours later, at about 4 a.m., having apparently been informed that the occupants of unit 3 had done some damage to your partner's unit. From the summary I note the police attended again after these events and from the depositions I note that they observed smashed windows in both units.
12 When you returned it seems you decided to pay back Mr Jude for the damage your partner alleged he had done to her unit-you were not there to know if this was accurate-and you proceeded to smash the window of unit 3 (Charge 8). Not content with that, you extensively damaged the car that Mr Jude's friend had arrived in earlier (Charge 9). It was at this point that police were called again and you left the scene again.
13 A little later you stole a car (Charge 10) and when you drove it you committed a further offence of driving while you were disqualified from doing so (Summary Charge).
14 Later police located the stolen car and found in it a backpack containing personal papers identifying you and also an imitation hand gun which you were prohibited from possessing (Charge 11). Eventually you were arrested back at 71 Andrews Avenue later that morning.
Impact on the victims
15 The victims chose not to make separate statements to the court about the impact of your offending on them. However it is apparent from the statements of the Andrews Avenue victims about your offending that they were extremely frightened by your violent rampage over the course of the night, into and around their unit.
16 I do not need separate statements to know that the people present at unit 3, 71 Andrews Avenue that night suffered as a result of your actions and I take this suffering into account in deciding the appropriate sentence.
Basis for sentencing
17 I sentence you on the following bases. First, your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt.
- The aggravated burglary involved the use of a weapon and you were accompanied by another person.
- Instead of calming the situation between your partner and her son and the neighbour you made it worse by actively engaging in the dispute.
- You escalated the situation by the way you acted, by your words and conduct and the commission of other offences such as the theft of items from the coffee table and the assault on Mr Furlong.
- Although you had time to think about what you had done you returned hours later, no doubt revved up by your partner's complaints, and committed further offences against the property of the same victims, and
- You committed all of the offences while you were undergoing a suspended sentence.
18 Aggravated burglary is a serious offence and your offending is towards the middle of the range because of the aggravating features that accompanied it and because it was the beginning of a sustained period of offending against these victims.
19 The criminal damage in respect of the car is a serious example of that type of offence. The other charge is less serious but certainly not a minor example.
20 The assault on Mr Furlong is described in the depositions as you hitting him on the side of the head with the bottle of alcohol which you had just stolen. Mr Furlong describes "just a knock". The agreed summary does not allege the use of a bottle and so I sentence you for this charge on the basis that no weapon was involved.
21 The offending in Charges 1 to 4 in December 2010 are less serious then the offending in February 2011 and did not involve entry to and theft from domestic premises or forced entry or damage, but I treat them still as of some seriousness given that in the first instance you were with someone else and for both occasions the theft of personal items would have been of real concern to the victims as well as the theft of items of identification on the second occasion.
22 The final set of offences in the early hours of 13 February show your lack of appreciation of your level of offending. You just did not think and kept on committing offences. I will return to this aspect a little later.
23 I have no information about your co-accused on the first two charges and I am told that your co-accused in respect of the Andrews Avenue offences was not charged, so parity is not relevant for me to consider. In any event your criminal history would probably be more significant than your co-accused in respect of Charges 1 and 2.
Factors in mitigation and personal circumstances
24 Although you originally denied all the offences when questioned by police, you pleaded guilty in this court. You are entitled to have that fact taken into account in your favour and I do so.
25 By your plea the community has been spared the time and cost of a trial and the victims have been spared the ordeal of giving evidence, in particular those from the Andrews Avenue offences. Although it was not a plea entered at the earliest stage it was still before the date of the trial and I also take into account that no witnesses were required to give evidence at committal.
26 According to the psychologist Ms Lechner, whose report I received, you apparently expressed shame, regret and embarrassment over your offending. I therefore accept that your plea is an expression of a level of remorse.
27 I have been told something of your personal circumstances. You are now aged 38 years and unfortunately much of your personal history is tied up with your criminal history. Between 1994 and 2010 you have been convicted of more than 150 offences over about 21 court appearances. These are mostly dishonesty offences, but include driving and drug offences. Of most relevance is that you have previously been convicted at least once for each of the offences for which you are to be sentenced today or for very similar offending.
28 You left school at 15 and although you worked with your father for a time in his painting business you did not gain any qualifications. Before you were 20 you were addicted to heroin and began the cycle of drug use, offending and gaol. You first went to gaol in 1996 or 97 and you say that you have not spent more than three or four months out in the community since then.
29 Your parents continued to care for and support you, but you stayed away from home when you were in a bad phase as you were ashamed. You have an older brother and a younger sister and no-one else in the family has been in trouble.
30 In the psychological report from Ms Carla Lechner (Exhibit 1) she notes that you told her that you have been on the methadone program for four years and so have not been taking heroin. Your counsel informed me that you had relapsed at the time of the offences in February 2011.
31 You also have a long standing problem with benzodiazepine tablets and from Ms Lechner's report it sounds as if you are still taking at least two a day even while in custody, and these are not prescribed for you (Page 3).
32 Ms Lechner is of the opinion that you are at high risk of becoming institutionalised and that because you lack the skills to cope when you are in the community you relapse to drug use, then offending and then return to gaol. She expresses the further opinion that you would benefit from support and treatment on your release. You have admitted that you have been given opportunities before and not taken them.
33 I received another report from Mr Martin Jackson, a neuropsychologist (Exhibit 2). He assessed you as having mild problems in a number of areas including impulse control. This provides a reason for your inability to stop yourself from offending especially over the course of the night at Andrews Avenue. Mr Jackson thought that the existence of the mild problems showed it is likely that you have a mild acquired brain injury, but, as he stated, it is not clear if this is from your long term substance abuse or the head injuries you have received. The real problem is that it shows you will find it difficult to rehabilitate yourself and change your life.
34 Your counsel pointed me to two factors that you say have made you really want to do something to change your life and stay out of gaol. First, your father passed away from cancer in June this year while you were on remand for these offences. You had not seen him for 17 months or so. You also had not seen your mother as she was caring for your father and unable to visit. Since his death your mother has visited you. You feel guilt over not being there during your father's illness. Your strong wish is to be released reasonably soon so that you can live with your mother and provide her with support. The second factor is that your partner was killed violently in October 2011 while you were on remand. You feel guilt over not being there for her.
35 Your counsel submitted that these two deaths now provide a significant motivating factor for you to really change your life and stop the cycle of drug use, offending and gaol.
Submissions
36 The prosecutor submitted that an appropriate range for your sentence is four to five years with a minimum of two to three years imprisonment.
37 Your counsel submitted that your rehabilitation depends on you becoming drug free and receiving assistance in the form of supervision and support on your release. She conceded that a term of imprisonment must be imposed, but submitted that it should be a sentence which makes you eligible for parole in the near future and provides for a lengthy time on parole for support.
Findings
38 In your case it is very important that my sentence attempts to make you think before committing more criminal offences in future, in other words tries to prevent you from reoffending; and my sentence must also prevent others from committing these sorts of offences.
39 While it will be useful for you to have treatment for your drug addiction and supervision and support when you are released, you are the only one who can really change your life. Because of what the psychologist and neuropyschologist say I accept that you will find it hard to change even though you say now you really want to in order to help your mother. Obviously if you can live a drug free life your risk of reoffending will be much lower.
40 Because of your criminal history, your long standing drug addiction and your problems understanding how you need to change I find that your risk of reoffending is high for dishonesty offences and significant for the offences of aggravated burglary, assault and criminal damage.
41 I accept that this time in prison has been harder for you because of the death of two people very close to you while you were on remand and unable to be with them.
Ancillary orders
42 Application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interest of justice, having regard to the seriousness of the offences, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected if you change your mind I must inform you that the police may use reasonable force to enable such a procedure to take place.
43 I take into account that you have not objected to the orders sought by the prosecution for forfeiture of the imitation gun and disposal of the other items.
44 I have a discretion to impose a further disqualification period for the summary charge of driving whilst disqualified. You are currently disqualified to June 2013. I order that you be disqualified from obtaining a licence for a further two years from today's date. This period is set recognise the further offending and to increase the period of disqualification from the previous offending, but it is less than the previous disqualification period of four years, so that if you are released on parole there may only be a short time for you to wait before you can obtain a licence so that you will not reoffend.
45 Taking all those matters into account you are convicted and sentenced as follows:
Charge 1, burglary, 12 months imprisonment;
Charge 2, theft, 12 months imprisonment;
Charge 3, burglary, 12 months imprisonment;
Charge 4, theft, 12 months imprisonment;
Charge 5, aggravated burglary, three years six months imprisonment;
Charge 6, theft, 12 months imprisonment;
Charge 7, assault, eight months imprisonment;
Charge 8, criminal damage, 12 months imprisonment;
Charge 9, criminal damage, 16 months imprisonment;
Charge 10, theft, 16 months imprisonment;
Charge 11, possess unregistered firearm, two years imprisonment.
On the Summary offence of driving whilst disqualified, 16 months imprisonment.
46 Charge 5 of three years six months imprisonment is the base sentence. I direct that one month of the sentences imposed on Charges 1, 2, 3 and 4 and the Summary Charge, two months of the sentences imposed on Charges 6, 7, 8, 10 and 11 and three months of the sentence imposed on Charge 9 are to be served cumulatively on the sentence imposed on Charge 5. That results in an effective sentence of five years imprisonment.
47 I direct that you serve a minimum term of three years before becoming eligible for parole.
48 I declare that you have served 547 days of pre-sentence detention, not including today, and this is to be deducted administratively from the sentence I have just announced.
49 If you had not pleaded guilty but had been found guilty of all the offences after a trial the sentence I would have imposed is seven years three months imprisonment with a minimum of six years.
50 I have made the ancillary orders and the copies can be handed down other than those to remain on the file.
51 Yes, just take a seat, Mr Ristevski. Does counsel wish me to repeat the cumulation orders?
52 MS TRUMBLE: Can I just check was it three months for Charge 9 and 10 or just Charge 9?
53 HER HONOUR: Just Charge 9.
54 MS TRUMBLE: Two months for Charge 10?
55 HER HONOUR: Two months for Charge 10, that was included in that batch, yes.
56 MS TRUMBLE: Thank you, Your Honour.
57 HER HONOUR: I'll just go through; three years six months the base sentence; one month on Charges 1 - 4 plus the summary charge, two months on Charges 6, 7, 8, 10 and 11 and three months on Charge 9.
58 MS TRUMBLE: Thank you.
59 HER HONOUR: Yes, any questions?
60 MS TRUMBLE: No, Your Honour.
61 MS HOLLINGWORTH: No, Your Honour.
62 HER HONOUR: All right, thank you. Ms Ristevski may be removed. Yes, thank you.
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