Director of Public Prosecutions v Sabitovic

[2023] VCC 1894

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02012

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLEM SABITOVIC

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2023
DATE OF SENTENCE:	19 October 2023
CASE MAY BE CITED AS:	DPP v Sabitovic
MEDIUM NEUTRAL CITATION:	[2023] VCC 1894

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              one charge of armed robbery- related summary offence of commit indictable offence on bail- plea of guilty- following sentence indication- history of substance abuse

Legislation Cited:      Criminal Procedure Act 2009; Crimes Act 1958; Bail Act 1977

Cases Cited:R v Verdins [2007] VSCA 62; 16 VR 269; Akoka v The Queen [2017] VSCA 214

Sentence:                  2 years 6 months imprisonment with a non-parole period of 16 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Nibbs	Office of Public Prosecutions
For the Accused	Mr J. Portelli	James Dowsley & Associates

HER HONOUR:

1Allem Sabitovic, on 17 July 2023, after hearing submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that, should you plead guilty to one charge of armed robbery, then pursuant to s207(1)(a) of the Criminal Procedure Act 2009 (Vic), I would impose a sentence of a specified type, that being an immediate custodial sentence.

2After considering the indication given, your counsel later indicated that you intended to plead guilty to that charge. You pleaded guilty on arraignment on 13 September 2023 to one charge of armed robbery, contrary to s75A of the Crimes Act 1958 (Vic). This carries a maximum penalty of 25 years' imprisonment.[1] You have also pleaded guilty to one related summary charge of committing an indictable offence whilst on bail, contrary to s30B of the Bail Act 1977 (Vic) which attracts a maximum penalty of 3 months' imprisonment.

[1] This armed robbery is a category 2 offence as it was committed in company and resulted in injury. The court must impose a custodial sentence (not combined with a Community Correction Order) unless satisfied of any of the matters in s 5(2H) of the Sentencing Act1991 (Vic).

Circumstances of Offending

3The circumstances of your offending were set out in a Summary of Prosecution Opening for Sentence Indication Hearing, which was tendered on the plea as the Summary as Exhibit A. This offending occurred in the early hours of 25 January 2021, when you were aged 32 years old.

4There are two co-offenders in this matter, Zereth Lebeter and Fiona Jones. You were reportedly in a relationship with Ms Jones at the time of the offending. The complainant was aged 56 at the time and was not known to you.

5By way of brief background, you and Ms Jones attended at the St Kilda RSL in Acland Street on the evening of 24 January 2021, where you met with Mr Lebeter who had been there during the afternoon, and at some point later, police attendance was requested by staff. You left with Ms Jones, and shortly thereafter Mr Lebeter departed.

6In the early morning of 25 January 2021, the victim was in his car driving along Greeves Street, St Kilda seeking to acquire the services of a street sex worker. The victim observed Ms Jones near the intersection with Inkerman Street.

7The victim and Ms Jones had a conversation regarding paid sexual services and Ms Jones told the victim to go to her flat. He parked his vehicle and Ms Jones then led him into the courtyard of 5 Greeves St. You and an unidentified co-offender walked east across the courtyard and then crouched behind a wall and remained there. Mr Lebeter was also present in the vicinity, and when the victim and Ms Jones walked through the courtyard, Mr Lebeter approached them from behind.

8Mr Lebeter had a white T-shirt wrapped around his head and was carrying a yellow boxcutter in his hand. Mr Lebeter said to the victim 'what the fuck are you doing with my girlfriend?'. The victim replied 'she introduced herself to me. She put it on me'.

9You then ran towards the victim, Ms Jones and Mr Lebeter. You were carrying a red boxcutter. You said 'Get his gold, get his wallet, get his keys and get his watch'.  In fear, the victim ran away from the group of you.

10The unidentified co-offender, who had been standing back from the group, also started to run after him. Mr Lebeter yelled 'I'm going to kill you, I’m going to rob ya, you’re fucked”.

11The victim ran onto Greeves St, where he tripped and fell between some parked cars on the street. You and Mr Lebeter caught up with him and pinned him down to the ground, by standing on him.

12Ms Jones then caught up with you. The group of you then stole a number of items from the pockets of the victim, including:

i.A wallet containing $200 cash, an ANZ bank card and a Medicare card;

ii.A single vehicle key to a Holden Commodore;

iii.A black Nokia mobile phone;

iv.A gold chain with a gold cross;

v.A Seiko banded watch; and

vi.A gold coloured bracelet.

13Ms Jones said to you and Mr Lebeter “this is the last time I'm going to fucking do this”.  The victim was screaming as he was pinned down to the ground. You and Mr Lebeter told the victim to stop screaming or you would stab and kill him. You and Mr Lebeter held boxcutters to the victim's throat, as the victim was screaming for help. You and Mr Lebeter told him victim to shut up.

14Mr Lebeter stomped on the victim's head with his shoe. When the victim attempted to get up from the ground, you kicked him to the head. The victim was in extreme fear and thought the group of you were going to kill him.

15A nearby neighbour observed the assault of the victim from his balcony. At 4:22 am, a report was made to police.

16Mr Lebeter ran back into the courtyard of 5 Greeves Street. You and Ms Jones were also nearby. The victim approached you and asked for his gold chain back, as his mother had given it to him. You swung a boxcutter towards him and also stole his gold bracelet. You asked the victim which car was his. Ms Jones then pointed to the car parked in Greeves Street and said 'that one'.

17At approximately 4:42 am, police officers were patrolling along Greeves Street. The victim approached the police car seeking assistance. Paramedics were called to assess him. As a result of the incident, the victim suffered a laceration to the back of his head, bruising in the shape of a shoe print to the back left side of his head and scratches to his neck.

18You were on bail at the time of the incident.

19At approximately 4:32 am, you, Mr Lebeter and Ms Jones attended the stairwell to the underground carpark of 33 Inkerman Street, St Kilda. This was captured on CCTV. You left the stairwell shortly after arriving.

20On 28 April 2021, at approximately 9:40 am, police attended at 20 Princes Highway, Dandenong, where you and Ms Jones were arrested and transported to the Dandenong police station. You participated in a record of interview on this occasion. You stated that you were in a relationship with Ms Jones and that you had memory issues. You denied any involvement in this issue.

21On 29 April 2021 police attended at an address at Noble Park – the home of your grandmother, Fatima Sabitovic.  Your grandmother consented to police searching the wardrobe where you stored your clothes. The police seized a pair of pink shorts from inside the wardrobe alleged to be the shorts worn by you during the incident.

Victim Impact Statement

22The victim has prepared a victim impact statement, as tendered on the plea as Exhibit B.  He expressed his fear resulting from the night of the offending and his thought that he was going to be killed.  As a result of the offending, he has experienced difficulty sleeping and reports dreaming of people attacking him with knives. The victim has lost confidence and describes not wanting to go out at night.

23He places blame on himself for being in such a position and notes that he made a mistake. He has experienced depression, anxiety and suicidal thoughts. With the support of his family, he has sought help from a psychologist to deal with the impacts of the offending.

24I take into account the impact that your offending has had on the victim.

Procedural History

25You were arrested as I said on 28 April 2021 and participated in a record of interview. You were committed to stand trial on 17 September 2021, following a contested hearing in the Magistrate's Court. There were multiple Directions Hearings listed in this court and a s198B examination of the victim was heard in March 2022. The matter was then listed for Trial.

26You made an application for a Sentence Indication Hearing and on 28 July 2022, the court declined to give a sentence indication as your co-accused, Mr Lebeter and Ms Jones were yet to be sentenced. The listed Trial was later vacated. The plea of Mr Lebeter and Ms Jones was heard on 4 August 2022. Mr Lebeter was sentenced on 16 August 2022. I note that Ms Jones' is yet to be sentenced.

27Your matter was again listed for a Sentence Indication, which was heard on 4 April and 17 July this year. Your counsel sought some time to consider the indication given and the matter was listed for a Final Directions Hearing, which proceeded on 30 August. Your counsel later indicated that the matter would resolve and that you would enter of plea of guilty. This plea hearing took place on 11 October 2023.

28You have accrued 211 days of pre-sentence detention. You were remanded in custody on 28 April 2021 and released on bail on 24 November the same year.

Prior Criminal History

29You have admitted an extensive prior criminal history, which dates back to 2007. You have many prior appearances relating to motor vehicle and driving offences, theft and dishonesty, family violence and drug offences. You have received various dispositions from the Magistrates' Court including terms of imprisonment, fines and community correction orders. You have prior appearances in this court, in 2007 and 2016. Relevantly, you have prior convictions for burglary, attempted burglary, theft and theft of a motor vehicle. You do not have any prior convictions for robbery or armed robbery, thus this incident demonstrates an escalation to some degree in criminal offending.

30You have a history of non-compliance with sentencing orders, having previously had a community correction order cancelled by formal court breaches in both 2016 and 2020. You also appear to have a history of disregarding bail conditions, having multiple convictions for committing an indictable offence whilst on bail and contravening a conduct condition of bail. I note however, that in relation to this current matter, you have maintained compliance with your bail conditions.

Personal Circumstances

31You are now aged 34. You were born in December 1988 to parents of Yugoslavian decent. Your parents separated when you were young. You mostly remained in the care of your mother, with occasional visits to your father once every two weeks or so. You purportedly found your early years challenging, due to frequent moves and your parents' separation. You formed close relationships with your cousins, which provided you with some stability throughout your early childhood.

32You struggled academically through your schooling. You attended multiple primary schools and found it difficult to keep up with the concepts taught in class. You also attended three secondary schools. You fell further behind academically and began to exhibit significant behavioural issues. You were expelled from Christian Brothers College in Year 9 for fighting and then went to attend Cheltenham Secondary School in Year 10. You later completed VCAL at Sandringham College.

33Your father re-partnered when you were in primary school. You have a half-sibling through your father, who is ten years younger than you. Your mother re-partnered when you were 16.  You purportedly began acting out due to 'no longer being the man of the house' and felt protective towards your mother.

34After leaving school, you began an apprenticeship, however you did not enjoy it and you struggled with the required literacy aspects. You then switched to working as a truck driver. You later lost your driver's license, which prevented you from continuing with this work.  You have also previously worked as a painter and a tiler.

35There seems to be a significant correlation between your substance abuse and your offending. You commenced using cannabis after you finished school and have stated that at the time you were associating with a negative peer group. Your cannabis use increased to a daily frequency over the next few years. You then commenced using methamphetamine in your early twenties. You reportedly also consumed alcohol heavily. Your first conviction occurred after you started using methamphetamine.

36You were diagnosed with severe anxiety and depression in your early twenties and you were prescribed antidepressant medication by your General Practitioner, but you did not engage in any counselling at this time. You were subsequently placed on the Disability Support Pension and since then, you largely remained unemployed.

37You commenced your first significant relationship in your early twenties which lasted for three years. Your drug use and criminal offending led to the breakdown of this relationship. You spent your first period in custody in 2016. You met your co‑offender in this matter, Ms Jones, in 2017 and you commenced a romantic relationship which was marred by drug use and violence. You spent further time in custody in 2020, in relation to a number of charges including two charges of contravening family violence intervention orders, where Ms Jones was the victim.

38You were remanded following your arrest in this matter. You were accepted into a rehabilitation program at The Cottage in Shepparton and you were granted bail to attend this program in November 2021. The program lasted for a period of 16 weeks. You were subject to onsite supervision, regular urine screens, daily drug counselling and education programs during this period. Two letters were provided by Aaron Gilhooley, operational manager of the Cottage, which were tendered on the plea (Exhibit 2). Mr Gilhooley notes that throughout your time at The Cottage, you demonstrated a firm commitment to your recovery from substance abuse. You reportedly displayed a willingness to change and grow. Mr Gilhooley states that you showed impeccable discipline and responsibility around not using alcohol and drugs, and he believes you have begun your integration back into being a responsible member of society.

39Since leaving the Cottage, you have been living with your paternal grandmother. You have been acting as her carer assisting her with daily tasks. You have reportedly enjoyed staying with your grandmother, as it has provided you with additional responsibility. Your grandmother's health is unfortunately ailing, and she recently suffered a stroke. Your maternal grandmother, with whom you also enjoy a close relationship, has recently been diagnosed with cancer. Your counsel submits that the health of both your grandmothers and your inability to support them during your incarceration, and the possibility that their health may decline, will cause you considerable stress which will make prison time more burdensome for you. I accept that and I take that into account.

40You have enjoyed a close relationship with your mother through your childhood and adulthood. She has remained supportive of you. She provided a character reference to the court and gave evidence at the Plea Hearing. She notes that since your release from The Cottage, you have been doing everything possible to re‑establish your family and community relationships. You purportedly have not engaged in past behaviours or with previous acquaintances.  You currently work on a part-time basis with Sab Con Developments, a company operated by your uncle and he provided a letter to the court, which was tendered. Your employment is said to have helped you by providing a regular routine and contact with others within a safe environment. Your uncle is extremely happy with your performance and states that you have proved how reliable you are – you turn up on time and you work well with others in the team.

41Mr Sabitovic, you are very fortunate to have the support of your mother as well as your extended family. This support is going to be invaluable over the next period of time both whilst you are in custody and also upon your release.

42Psychologist Miriam Latif conducted an assessment of you in March 2020 and prepared a report dated 20 April 2020. She has diagnosed you with stimulant use disorder, cannabis use disorder, sedative hypnotic and anxiolytic use disorder, gambling disorder, adjustment disorder and other psychotic disorder. Ms Latif recommended that you attend in‑patient drug treatment and noted that it was essential that you be properly medicated. As your counsel has submitted, these recommendations appear to have been properly founded and you have adopted these recommendations which has enabled you to make significant changes in your life.

43Ms Latif also opines that your presentation as it was in March 2020 was likely to make a long-term custodial sentence more onerous for you than someone not suffering your conditions. Your counsel submitted that limbs 5 and 6 of the principles set out in R v Verdins are therefore enlivened.[2] On this point, the prosecution submit that they cannot say that they are not enlivened, but it is at the lower end of the weight that should be given to these considerations.

[2] [2007] VSCA 62; 16 VR 269.

44I accept that you have presented with a complex history of mental health issues and that these may make your time in custody more onerous than somebody who is not suffering those conditions.  I also accept that there is a risk that your mental health may decline as a result of the custodial environment but given that the report from Ms Latif is a number of years old, I give this some weight but it is not an overwhelming consideration.

45More recently you were assessed by clinical psychologist Ross Evans in May and June this year.

46You reported to Mr Evans that at the time of the offending you were all under the influence of drugs and as a result you have difficulty remembering certain details of the incident. It seems however that your account of the offending omitted certain details and you appear to have sought to minimise your involvement. For example, you told Mr Evans that your friend attacked the victim when he approached your girlfriend asking her for sex. You told him that your co-offender pulled out the knife and robbed the victim but that you stood by and watched as events unfolded. You made no mention of the active role you played in carrying out the armed robbery. This however may be a reflection of the fact that at the time of those assessments and the reports, you were pleading not guilty.

47Testing conducted by Mr Evans indicated elevations on major depressive disorder, panic disorder, language disorder and several learning disorders. He considered each of your disorders were in remission and noted that you did not exhibit major mental health symptoms at the time of the assessment that would meet the criteria for a current mental health condition. He did note however that you continue to take medication to manage your anxiety and depression having previously been formally diagnosed with these issues and with bipolar affective disorder by your General Practitioner.

48Mr Evans notes that you have expressed your regret for your poor behaviour and the way that this has impacted upon your relationship with close family members and friends. You have purportedly ended relationships with negative associates and have taken steps to repair relationships within your family. Your mother gave evidence during the plea as to the changes that she has noticed in you and the close relationships that you have redeveloped with your cousins and other family members.

49Whilst on bail you have been seeing psychologist David Lococo who has been working with you to assist in managing your anxiety and symptoms of panic by way of cognitive behavioural therapy. He notes that you have responded well to treatment and there has been some improvement in mood and he considers that you would benefit from continuing with treatment.

50I note that you have spent a number of days in custody which was served during the COVID-19 pandemic in which prison conditions were more onerous than usual and I take this into account.

Nature and Gravity of Offending

51The offence of armed robbery is a serious one and this is reflected in the maximum penalty applicable. The prosecution submits that this is a serious example of this offence. This was a violent armed robbery carried out by you and co-offenders to sustain your drug habit. That it was committed in company makes it particularly serious. There was a degree of planning involved with Ms Jones luring the victim to a more secluded area where he was confronted with a weapon. You later used the box cutter to threaten him, and undoubtedly the experience would have been terrifying for him.

52The violent confrontation involved you physically kicking him to the head when he tried to get up. As I have said, you have not been charged in relation to this assault, but it forms part of the circumstances of the offending, as does the fact that your victim sustained minor injuries. You stole items that were of sentimental value to him, and he made this clear to you when he asked you to return the gold chain gifted to him from his mother. I accept that the offending was relatively unsophisticated, and that you made little or no attempt to disguise your identity or your movements.

53The sentencing principles of general and specific deterrence are relevant here; others who might be inclined to behave in a similar way, must understand that offending of this nature will likely attract a term of imprisonment. I also take into account the principles of denunciation, protection of the community and just punishment whilst balancing these with the need to consider your rehabilitation. I do indeed denounce your conduct.

54It is to your credit, that despite your extensive criminal history and your long‑standing issues with substance abuse, that you have managed to sustain a lengthy period of abstinence since your release on bail almost two years ago.

55During your time spent at The Cottage – almost 4 months, you were in quasi custodial conditions in which you were required to attend programs and subject to regular urinalysis. According to the letter from Aaron Gilhooley, residents build up over time to some discretionary off-site responsibilities, and you were eventually permitted to spent time away from the premises during the day. In February 2022, you were considered eligible for weekend leave and your bail conditions were varied to enable you to do so.

56As I have already said, Mr Gilhooly notes that you have shown a firm commitment to your recovery from substance abuse and you have taken every opportunity to adhere to feedback given to turning your life around. He has described your progress as a surprising and inspirational journey noting that 'it appears that the willingness to change and grow is genuine, he has certainly taken many forward steps in the past four months to do this'.  It appears that this has continued.

57I note that the staff at The Cottage were extremely pleased with your level of responsibility and it seems that you have followed recommendations upon your exit from the program. I accept that the program at The Cottage involved a degree of confinement and restriction of your freedoms. Applying the principles set out in Akoka v The Queen,[3] I take this time into account as part of the instinctive synthesis and have moderated the sentence accordingly.

[3] [2017] VSCA 214.

58Furthermore, you have obtained steady employment working a number of days a week for Sabcon Developments, and you spend time with your family and assisting your grandmothers. Given that there will be a period where you will be no longer able to remain in the home with your paternal grandmother, it will be necessary for other arrangements to be made to assist with her care. This I hope will provide you with the motivation to continue on the path to rehabilitation during your time in custody and upon your release.

59It is in the community's interests as well as your own that you be rehabilitated. As I have said, you appear to have reintegrated back to society and the notion that you must return to custody despite the considerable progress that you have made would understandably be difficult. There is of course a risk that a return to custody may have a detrimental effect on your rehabilitation. I accept that returning to custody may expose you to negative influences and risks dismantling the structures and networks that you have developed in the community. Unfortunately, there is no other alternative to ordering a further period of imprisonment. Although your efforts at rehabilitation are impressive and although gaol carries with it a risk of undoing the excellent progress that you have made, given the seriousness of the offending here, and to give effect to the principles of sentencing, it is necessary that I must impose a further period of imprisonment.

60I must also have regard to parity. Your co-offender Mr Lebeter pleaded guilty to a single charge of armed robbery in August 2022. He too had run a contested committal in September 2021. Mr Lebeter was sentenced by Judge Lacava to 3 years and six months' imprisonment with a non-parole period of two years.

61Ms Jones has also pleaded guilty but to a charge arising from her involvement in this offending which was one of robbery. At the time of her plea hearing in August 2022, her matters were adjourned by Judge Lacava to enable her to be assessed for a community correction order. For various reasons her matter has not yet been able to be finalised and she remains on bail supported by CISP, pending sentence. Ultimately it is likely that I will sentence Ms Jones later this year, but her matters can be distinguished from yours given that she has pleaded guilty to a lesser charge.

62Returning to the question of Mr Lebeter's sentence to which I have had regard. I have read the detailed reasons for sentence. Mr Lebeter's role in the offending was, like yours, considerable. You were both active participants in the armed robbery, both with your use of the box cutter, threats made, stomping on the victim and stealing his property. Both you and Mr Lebeter's objective criminality are similar. You were both aggressive, threatening and violent toward the victim.

63There are of course some differences between you and Mr Lebeter. He was older than you at the time of the offending and sentencing, and he admitted a lengthy prior criminal history which relevantly included a sentence of armed robbery and robbery from 2002.

64You have also had the benefit of having engaged in residential rehabilitation and made significant steps towards your own reform. I accept that there has been a powerful change in your trajectory and I give this considerable weight in the sentence that I am about to impose.

65Mr Lebeter entered a plea of guilty at an early opportunity once committed. Your plea has come considerably later and following a sentence indication in which it was indicated to you that a further period in custody would likely be imposed upon a plea of guilty. I accept however that by seeking Sentence Indication Hearings previously, there have been efforts made to see whether or not the matter could resolve.

66Although your plea of guilty came much later than that of your co-offenders it is nonetheless valuable.  By pleading guilty you have saved the court and the community the time and the costs of a trial. More importantly you have spared the victim from having to give evidence and relive the experience. In the context of COVID‑19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence. Whilst that backlog has now in effect been reduced to a pre-COVID standard, your decision to plead guilty should be considered in light of that backlog. By pleading guilty this has ensured a reduction in trial work and accordingly I propose taking into account that your plea of guilty occurred during the pandemic, albeit that the weight attached to this is no longer as great as it was earlier this year.

67Furthermore, I accept that by pleading guilty you have demonstrated a degree of remorse for the offending. You have accepted responsibility for your behaviour, and this is consistent with your rehabilitative efforts to date. Your mother speaks of your regret. I accept that you are remorseful.

68I also take into account the delay. This matter has been hanging over your head now for a number of years, which has no doubt been stressful, but to your credit you have continued with your rehabilitation despite the stresses and uncertainty.

69Given your efforts to stay off drugs and rehabilitate yourself, I am of the view that your prospects of rehabilitation are good and would be substantially enhanced if you continue down the path that you have, of reform. They are also enhanced by the fact that you have considerable family support. In light of that, I have fixed a longer period of parole to facilitate your ongoing rehabilitation.

70As I have indicated, there is to be a further period required to be served in custody. I appreciate that this may impact upon your efforts but hopefully now you have some coping strategies for difficult situations and an understanding of the ways in which you can cope without resorting to poor decisions leading to bad behaviours. Can you stand up please Mr Sabitovic.

71On Charge 1, the charge of armed robbery, you are convicted and sentenced to 2 years and 6 months' imprisonment.

72On the summary charge, you are convicted and sentenced to one month imprisonment. I order that the sentence imposed on this summary charge be served concurrently with the sentence imposed on Charge 1.

73I fix a non-parole period of 16 months.

Pre-sentence detention

74Pursuant to s18 of the Sentencing Act, I declare that 211 days pre-sentence detention as time already served be deducted from the sentence that I have imposed.  

S 6AAA

75Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to a total effective sentence of 3 years and 2 months' imprisonment with a non-parole period of 22 months.

76Counsel, can I just confirm whether there are any matters that I have overlooked or that require correction?

77MR NIBBS:  No, Your Honour.

78MR PORTELLI:  No, Your Honour.

79HER HONOUR:  Yes, all right, thank you.  Can you please take Mr Sabitovic into custody.  Thank you.  I thank counsel for your assistance.

80Yes, thank you.  Can you please take Mr Sabitovic into custody. 

81We will adjourn thank you.

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