Director of Public Prosecutions v Samardzic

[2018] VCC 2118

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-02339

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER SAMARDZIC

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:	13 December 2018
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP v Samardzic
MEDIUM NEUTRAL CITATION:	[2018] VCC 2118

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HIS HONOUR:

1Peter Samardzic, you have pleaded guilty to one charge of aggravated burglary and one charge of theft.  Those crimes carry maximum penalties of 25 years and 10 years respectively.  You have pleaded guilty at the earliest reasonable opportunity and I will take the view that you, at least now, have appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.

2You are now 41 years of age.  You have a very concerning criminal history going back over many years.  On my calculation you have been gaoled on ten separate occasions for the crime of burglary.  I have been shown some summaries by the Crown and they simply confirm what my earlier view would have been, that you in effect have been for a very long time a house burglar, albeit within the auspices I suppose of drug use.

3A summary of offending is that on 23 July 2018 a 69 year old lady was alone in her unit in Bairnsdale.  She had retired and had a vegetable garden out the back and that was where she lived.  At 12.35 am on that day she woke up and heard noises coming from the front of her unit.

4She lay in bed listening to those noises for ten minutes until she heard a loud bang.  She got out of bed and walked to her lounge room to investigate.  There were no lights on in the unit.  However, she saw a shadowy figure standing near her television table going through her belongings.

5She yelled, "Get out of my house", and startled you and you ran towards the laundry.  She gave chase and has stopped when she saw a flash of light which she believed to be the flash of a torch.  She observed the back laundry door was open.  You ran out of the back laundry door and mumbled, "Sorry", as you went out.

6She yelled at you that she was going to call the police.  She locked her back door, returning to her lounge room and turned on the lights.  She discovered that her unit had been ransacked, cabinet drawers were left open and the contents of the drawers had been pulled out.

7Her handbag had been disturbed and a number of items were missing, including her purse and her car keys.  She called 000 and police attended.  They arrived within minutes and it was confirmed that she was safe and a small amount of cash was then seen in the backyard where it had been dropped by you.

8A further search of the overall area was undertaking it being a series of units numbered one to five.  As the two police officers walked down the driveway they came across you.  You appeared to them to be nervous, pacing backwards and forwards and mumbling your words.

9They had a conversation with you where you stated that you were from Noble Park and were at a mate's place in Lakes Entrance.  You were in the driveway of Day Street because you'd seen a man jump the fence and you were chasing him and you told them that you had taken ice and heroin that evening.

10They asked you what were in your pockets and you began to take out the contents of your pockets and put them on the ground.  What you took out of your pockets was what you had stolen from her house, including her car keys, her house keys, a credit card defender wallet with her cards in it, a Commonwealth Bank credit card, a Commonwealth Bank debit card, both in her name, a Fly Buys card in her name and there was also a set of keys with a Taser attached which was not hers, but was yours and gives rise to the aspect of this being not only a person present but a weapon, aggravated burglary.

11When you were asked about the Taser you told the police that was it was for self-defence.  You then told the police that you had done the wrong thing and asked if you could apologise to the victim.  For somebody who has been gaoled on numerous occasions in the past for burgling houses it is a little bit hard to accept.

12In any event you were handcuffed and placed in the back of the divisional van and I am not going to buy into all that.  Medical assistance was sought.  The paramedics in the end said there were no concerns for you and they said you were medically fit to be interviewed.

13When taken back to the police station for reasons that have not been quite explained to me you were agitated and apparently incoherent and police, together with an independent third person, thought that you were not fit to be interviewed.

14Whether that was all genuine or feigned I have got no idea and you certainly do not get sentenced on the basis that it was feigned.  The end result was that you were not interviewed.

15The offending is inherently serious as was indicated during the course of discussion with counsel.  It is very sort of offending that in my view the community is most concerned about.  When a woman of her years is to be confronted by a man in the privacy of her own home it is just not to be tolerated.

16I am well aware of the decision in Meyer which obviously relates to confrontational aggravated burglary but what is also pointed out clearly in Meyer is that current sentencing practices for all forms of burglary, aggravated burglary, should be treated with some caution.

17Each case is to be dealt with in its own particular set of circumstances.  The effects of the crime on that lady have been and will continue to be devastating.  Her victim impact statement was read out by the prosecutor and I will read it in its entirety it being fairly short.

18"Since this crime I have to sleep with the light on.  I cannot go into the backyard anymore.  I have to get my daughter to come over and take my bins out and I believe my vegetable garden would be dead by now.  I get to my backdoor step and I can't breathe.  If anyone comes near me and I don't expect it I jump through the roof.  It has made me feel like a coward because I can't do the things I used to do.  I used to go out and tend my garden every day and now I can't.  I only go out one night a week and that is local and only with daughter.  Before this I could go out and about on my own and it didn't worry me.  Physically I feel that everything has become much worse.  Before this happened I sometimes used a wheelie walker but now I have to use it all the time.  I haven't slept properly since that night.  I've installed a new secure back door with dead bolts and sensor lights.  I had to start using Ventolin medication along with preventative medication on a daily basis".

19The consequences to a victim are part of the sentencing process.  In this particular set of circumstances where you have obviously been doing this sort of thing for a living one day you are going to have a set of circumstances such as this and the consequences of it must have been known to you.

20I have no idea how many victim impact statements you have heard read out in court before but I am assuming it is probably a number.  I regard this as a very serious example of aggravated burglary.  It is an ageing woman, alone in her own home who has suffered severe consequences.  I do not accept that your circumstances at the time, were particularly coherent, but you certainly were aware of what you were doing and certainly aware of the consequences and you went ahead and did it.

21The offending, as I said, is I think very serious.  It calls for the application of general deterrence, specific deterrence in your situation are probably problematic but I do take them into account in any event.  Clearly denunciation has to be a part of this sentencing process and obviously an appropriate punishment has to be imposed.

22When I consider the appropriateness of the punishment it is quite clear that looking at your criminal history and the violation by you of the homes of others as a method of gaining your existence community protection becomes a very significant factor in my view.

23Gaol of significant proportions becomes inevitable and I have already described how many times you have been imprisoned in the past for this offending, albeit for burglaries and not for the crime of aggravated burglary.  In those circumstances I look to matters prior to you and your counsel has provided a very helpful history.

24He points out that this must have been done in many courts on many occasions that your father was a fitter and turner.  Both parents are now deceased, your mother dying in 2014.  At that time you received a small inheritance and bought a unit I am told in Lakes Entrance.  Your father had died in 2011.

25You went through to Year 9 in school and then worked in abattoirs and as a cabinet maker.  You have led a life afflicted by addiction to illicit drugs and this has ebbed and flowed over the period of your adulthood.  Your counsel has quite correctly pointed out that there have been periods of what would appear to have been rehabilitation or certainly a lack of detected offending and it is put that your offending has related to funding drug addiction.

26He points out that in June of 2005 you suffered in all probability an acquired brain injury as the victim of a serious assault and as I pointed out to him your burgling of houses commenced well before then.

27I have before me, as is described in the submissions, a report from your medical practitioner and you do have a number of significant medical concerns.  You had an unfortunate set of circumstances insofar as your health is concerned as a result of the assault upon you some years before.  Surgery would not have assisted and that has had certainly side effects.

28You are on prescription drugs at the time he reports, codeine, epilim, lyrica and telfast.  It is not put to me that there is any medical condition relating to you that cannot be adequately treated in a custodial environment and there is nothing to suggest that the principles of Verdins are in any way enacted.

29It is said that you have an acquired brain injury but as I already pointed out, your offending commenced long before that condition came into existence.  You do suffer from anxiety and depression which your practitioner describes as chronic, chronic of course just simply meaning longstanding.

30There is nothing to suggest that you would do gaol harder than anybody else and indeed as your counsel points out you are doing, if it can be described that way, well in prison.  You have a position where upon being sentenced you may be able to be the lunchtime chef at Fulham and you are clearly making good use of the time that you have been on remand.

31It then comes down to the circumstances of you.  I would have to take the view that the prospects of your rehabilitation are bleak.  I think the risk of you re-offending upon your release if you use drugs again would probably be in the order of 100 per cent.

32It may be, and I hope it can be, that the circumstances are of this prison sentence being of significantly longer duration than the other ones you have received previously, they give you the opportunity of a prolonged abstinence and the wherewithal to endeavour not to use upon your release.

33However, the seriousness of the offending obviously is a very significant factor in all this and the community attitudes to this sort of offending have to be as well as a judge can bearing in mind the constraints placed upon him or her taken into account.

34Accordingly in these set of circumstances on a charge of aggravated burglary you are sentenced to be imprisoned for a period of four years and six months.  On the charge of theft 12 months.  For reasons of effectively totality I will direct that the sentence on the theft be served totally concurrently with the sentence on the aggravated burglary leaving a head sentence of four years and six months.

35I direct that you serve three years and three months before becoming eligible for parole and I direct that 141 days be reckoned as having been served under this sentence.  So that you are aware of the benefit of your having pleaded to these matters and not fought them out I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of seven years with a minimum term of five.

36Are there any other orders I have to make, gentlemen?  No?  Do you want me to leave so you can talk to him?

37MR CASEMENT:  Right now, Your Honour?  Yes.

38HIS HONOUR:  I will just leave the Bench.  As soon as Mr Casement has had a chance to talk to him you can take him back and bring back Mr Hubbard.

39MR CORDY:  Your Honour indicated you would make that disposal order I understand.

40HIS HONOUR:  I have made that, yes.

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