Director of Public Prosecutions v Selman

[2020] VCC 573

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02170

DIRECTOR OF PUBLIC PROSECUTIONS

v

AVNI SELMAN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April & 6 May 2020
DATE OF SENTENCE:	6 May 2020
CASE MAY BE CITED AS:	DPP v Selman
MEDIUM NEUTRAL CITATION:	[2020] VCC 573

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:              Intentionally cause injury; attempted kidnapping     
Legislation Cited:      Sentencing Act1991 (Vic)

Cases Cited:Brown v The Queen [2020] VSCA 60; R v Verdins & Ors [2007] VSCA 102; 16 VR 269; 169 A Crim R 581

Sentence:18 months imprisonment and community corrections order (18 months duration, 175 hours of community work, treatment & programs)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Offender	Ms L. Ristivojevic	Ondrik Larsen Lawyers

HER HONOUR: 

1Avni Selman, you have pleaded guilty on indictment to charges of attempted kidnapping and intentionally cause injury, both of which occurred in Wangaratta on 20 April 2019.  You did not commit this offending on your own and co-offenders Ian Jackson, Garrie Scott and Sedat Ciftci are also charged as a result of this incident but are yet to be dealt with by the courts.

2In sentencing you for these crimes I must have regard to the maximum sentence for each of the offences that you have committed.  The charge of attempted kidnapping carries a maximum penalty of 20 years imprisonment.  The remaining charge carries a maximum of 10 years imprisonment.

3The circumstances of your offending are set out in a document entitled “Summary of Prosecution Opening”, dated 28 November 2019.  It is a detailed document and represents an acceptance by you of all of the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.

4In short compass, at the time of the offending you were 33 years of age and living in Shepparton.  The victim of your offending was Joshua Kelly and, whilst he was unknown to you, he was known to your co-accused Ian Jackson, to whom it is said Mr Kelly owed a debt.  On Saturday 20 April 2019, you and your co-offenders travelled from Shepparton to Wangaratta to settle that debt. 

5At approximately 2.20 pm the victim attended an address in Wangaratta by previous arrangement with Alisha Woodall to collect money which she owed him.  He arrived, driven by Luke Allan, and noticed a Holden Commodore drive past once or twice before pulling in front of Allan's vehicle.  As Allan reversed his vehicle, you and Jackson approached the victim, followed shortly after by Scott and Ciftci.

6The offending which then followed was witnessed by Andrew Mills, Melissa Peach, Luke Allan and Alisha Woodall.  Mr Kelly initially sought to defend himself by approaching the four of you and threw several punches before being assaulted by you, Jackson and Scott.  He was punched, kicked and his head pushed by you into a concrete footpath during the assault.

7Witness Andrew Mills heard noise and looked out his window to see three people fighting on his driveway.  He went outside and saw you and Jackson continually punching and kicking the victim whilst he lay on the road in a foetal-like position with his arms covering his face.  At this stage, Mr Kelly was shirtless and bleeding from his face. 

8Mills then saw Scott approach the victim, who had stood up, and “[gave] him two round house swings with his fists to the victim's body”.  The victim staggered but managed to remain upright.

9The victim was then dragged by you towards the Holden Commodore in an attempt to force him into the vehicle, however he managed to break free.

10In the meantime, Mills was asking you all to stop but was ignored.  He began to record the offending on his mobile phone and called out to his partner, Peach, to call the police, which she did. 

11As Mills was recording the incident, you approached the witness telling him to stop filming.  Mills refused and you retreated, yelling at the other offenders to get the victim into the car.  Jackson caught the victim and continued to assault him.  You and Ciftci returned to the Holden Commodore and reversed it to where the victim was positioned.  You and Jackson continued to assault the victim by repeatedly punching and kicking him as he lay on the footpath. 
You then again dragged the victim towards the Holden Commodore, assisted by both Jackson and Scott, while Ciftci was seated in the front passenger seat.

12The victim was dragged to the rear door of the vehicle before again managing to break free and flee the scene, seeking refuge at a nearby address.

13The footage recorded by Mills was played to the court at your plea hearing and has been tendered and viewed by me.  I accept the joint submission that this incident occurs over about five minutes and that the footage recorded does not record the entirety of what happened.  From that footage it can be seen, however, that Mr Kelly is vulnerable in the context of four upon one and that for the length of that recording, you are a substantial - in both size and substance - aggressor.  I certainly accept the description of you as an active participant.

14You and your co-offenders were located by police in the Holden Commodore as you were leaving the scene.  You were subsequently interviewed by police and chose, as is your right, to make a “No comment” record of interview.

15The victim was located at a house nearby and conveyed to the Wangaratta Hospital by ambulance.  His injuries were found to include:

·firstly, multiple fractures, including fractures to three ribs and a comminuted nose fracture;

·secondly, air and blood collection in the space between the two membranes (the pleura and the pleural space) covering the left lung, resulting in lung collapse;

·thirdly, multiple soft tissue injuries including:

othree superficial lacerations on the scalp;

oblood collection (a subgaleal haematoma) in the space between the membrane covering the outer surface of the skull and the tough layer connected to the scalp muscle;

olacerations on the nose and left ear;

olaceration and bruise on the right shoulder;

obruising on the left chest;

ograzes on the right forearm and wrist;

omultiple grazes on the right upper thigh; and

·complication of lung infection, which was hospital acquired pneumonia, requiring antibiotics and lung tissue collapse.

16Mr Kelly required:

·emergency chest drain insertion to treat the lung collapse, which was removed two days after the offending;

·plastic surgery outpatient referral to discuss surgery regarding the nasal fracture;

·investigative imaging; and

·medications, including potent painkillers, antibiotics and medication to support his digestion. 

He spent five nights in the intensive care unit before being discharged on 25 April 2019, pending ongoing appointments in relation to the setting of his nasal fractures.

17Dr Jason Schreiber determined that the injuries were of moderate severity and noted that it takes an extended time - between weeks and months - for bone fractures to heal, and indicated that blunt force to the head bears a high risk of injury to essential organs such as the brain or eyes.  Subgaleal haematoma poses a risk for blood distribution over the skull, potentially resulting in life-threatening haemorrhagic shock.

18It is perhaps trite to say that this is serious offending. 

19I accept that there was no evidence of a preconceived plan to injure Mr Kelly, but such potential must have at least been contemplated as you neared the scene and in a group.  I accept the joint submission that the decision to try and kidnap him was likely to have been spontaneous and, given the charge, obviously unsuccessful.  I do not see the charge of attempted kidnapping at the higher end of an offence of its type. 

20The injury charge is in a different category.  You were prepared to travel in company with three co-offenders some distance to discuss the debt that was said to be owed by Mr Kelly to Mr Jackson.  Mr Jackson at least must have known Mr Kelly would have been at that address at that time at which he was located by the four of you.  Whatever existed between Mr Kelly and Mr Jackson, it was not your issue.  You should never have been involved.  Four on one automatically placed Mr Kelly at disadvantage, as did the fact he was caught by surprise and had limited, if any, ability to defend himself.  At various stages he was on the ground whilst being attacked and was clearly in fear.  Fortunately, there were no weapons involved but the injuries upon him were multiple and can hardly be described as insignificant.

21Unfortunately, violence is something which is not unknown to you.  You have a criminal history which now spans some nine years.  On 20 December 2011, you were dealt with at the Shepparton Magistrates' Court for driving offences which included failing an oral fluid test, speeding and driving whilst disqualified. 
At that time you were fined without a conviction being recorded.

22On 30 June 2014, you appeared at Broadmeadows Magistrates' Court for refusing to provide a sample of oral fluid, driving whilst disqualified and other associated offences.  You were placed on a community corrections order for a period of 18 months which included treatment conditions.

23In September 2016, you were dealt with on three occasions in the New South Wales Local Court in relation to driving offences, which included driving with the presence of an illicit drug and driving whilst disqualified.  You were fined on each of those occasions.  You were apparently a professional driver at that time, and indeed at the time of the five sets of offences to which I have referred, which is of obvious concern.

24On 29 March 2017, you appeared at the Shepparton Magistrates' Court in relation to charges of negligently causing serious injury, assault emergency worker on duty, resist emergency worker on duty and attempted escape from custody.  You were convicted and placed on a community corrections order for a period of 12 months.  This order included community work as well as treatment conditions.

25On 5 May 2017, you appeared at the Shepparton Magistrates' Court in relation to driving whilst suspended and exceeding speed.  You were sentenced to a period of seven days imprisonment.  A subsequent appeal was abandoned.

26On 10 June 2017, you appeared at the Wagga Wagga Local Court for failing to give information leading to a driver's identification and were again fined.

27On 11 October 2017, you again appeared in Wagga Wagga Local Court in relation to a range of driving offences, again including charges of driving with an illicit drug present in your blood and driving whilst disqualified, and were fined.  In addition, you were imprisoned for a period of two months.  These offences also occurred in the context of you being a professional driver where community expectations and community safety requires compliance with road rules and regulations.

28On 25 January 2019, you appeared at the Shepparton Magistrates' Court in relation to a range of offences, including aggravated assault of a female, theft, failing to answer bail, criminal damage, driving whilst disqualified, driving at a speed dangerous and contravening the community corrections order which had been imposed upon you on 29 March 2017.  In relation to that order, the breach was found proven and the corrections order was varied and extended for
12 months as of 25 January 2019.  For the remaining matters, you were sentenced to 15 days imprisonment in combination with an additional corrections order of 12 months duration.

29Whilst you are not to be punished for this history again, it does provide some guidance as to the need for specific deterrence - that is, putting you off further offending - denunciation and the need to protect the community from you. 
In addition, it assists with the assessment that needs to be undertaken as to your prospects for rehabilitation.  All are relevant to the sentencing task as it applies to you.

30The assessment of your prospects for rehabilitation includes the fact that at the time of your offending, you were subject to two community corrections orders, which had been imposed by the Shepparton Magistrates' Court on 25 January 2019 in relation to the various charges to which I have referred.  In addition, you were on bail at the time for matters still pending in New South Wales.

31Your offending in breach of these court orders is an aggravating feature. 
Your inability to abide by court orders is an obvious concern as to your future prospects.  Overall, your past history indicates that neither the sanction of gaol, albeit in the form of short, sharp shocks so far, nor the support of therapeutic intervention, has steadied your path.

32Your personal circumstances give some insight as to how you got yourself to this position.  You are now 34 years of age and are one of three children from the marriage of your father, Marni Selman, and your mother, Andrea McDade.  You have an older sister, Vanessa Scali, a younger brother, Jared Selman, and a younger half-sister, Nicole.

33Your parents separated when you were around 10 years of age.  You initially lived with your mother and other siblings before returning to live with your father.  The ability to bond in the context of this relationship was limited by your father spending extensive periods away from home or taking you with him.  Your father worked as a truck driver.  Your education was affected and you left school at approximately 15 years of age to then work with your father in trucking.

34At 26 years of age, you invested in purchasing four motor vehicles and two properties.  Approximately two years later, you started your own transport company, Selman Transport, providing refrigeration transport.  The company started in mid-2014 and you purchased two refrigerated trucks and obtained extensive loans to support your business.  You were working long hours and fell behind in repayments which placed you under mounting financial pressure.

35You were already using methamphetamine - since the age of approximately
23 years - to help keep you awake during the long drives associated with your work. 

36At 22 years of age you married your wife, Christina.  There are two children of that relationship:  Mia, aged seven years, and Lucas, aged four years.  Your relationship with your wife struggled as your working life took up a great deal of your time and you were already involved in the use of illicit drugs. 
You separated in 2016.

37In 2017, you received a prison sentence in New South Wales which saw you released in November of that year.  You remained in New South Wales working, before being retrenched from your then employment and then returning to Shepparton in September 2018.

38When you did so, you instruct that you discovered that your wife had sold the family home without your knowledge.  She was refusing you access to your children.  By that stage your business had effectively collapsed and, in your view, you had simply lost everything.  You returned to extensive drug use.

39You have not seen your children since September 2018.  This is perhaps not wholly surprising given your extensive use of drugs at that time.  By the time of your offending, you were using a gram of ice per day.

40This outline sets context for your offending.  It is not an excuse for it.  In reality, your life had been out of control for quite some time, well in advance of your offending.

41On your behalf three reports have been tendered, authored by Dr Aaron Cunningham, psychologist.  They are dated 6 August 2019, 29 October 2019 and 27 April 2020.  I have had recourse to each of these reports and take their contents into account.  Your counsel does not call into your aid the principles of R v Verdins & Ors (2007) 16 VR 269. Essentially, the value in those reports is that they set out your personal circumstances and factors which can be taken into account in assessing your future prospects.

42Dr Cunningham identifies a depressive condition currently being treated with Avanza.  You have found this medication to be of assistance.  In his opinion, you present with a moderate risk of future violent offending, and it is your drug use and association with drug-using peers that are the main contributors to your offending.  Quite obviously, he suggests that ceasing drug use and drug-using peers would reduce your risk.  Not surprisingly, he recommends that you have assistance to transition you back into the community, particularly by psychological intervention.

43Your father remarried and presently owns his own transport company and orchard in Shepparton East.  Your mother now resides in Mornington and is retired, having previously worked for the local council in Kyabram.  Your sister is a stay-at-home mother of three children.  She runs a family orchard and cold store business with her husband.  You have an extremely close relationship with her, and she and her husband offer you employment upon your release, as well as accommodation with their family.  You are extremely fortunate to have that continuing support.

44Numerous character references have been tendered on your behalf including those from your friend Victoria Latina, your sister Vanessa Scali, your brother-in-law Dominic Scali, friend Nicholas Goulopoulos, family friend Judith Bogdan and your mother Andrea McDade.  Whilst each of these persons has known you in a different capacity, each does reflect on a person vastly different from that represented in the offending.  You are variously described as a loving father and a hard worker.  The authors of the references have noticed a significant change since you have been in custody and you are described as both remorseful and ashamed.  I do take the contents of the references tendered into account.

45As a direct consequence of your offending, you have now spent in excess of
12 months on remand.  The impact of the COVID-19 pandemic has been raised on your behalf.  I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing.  In a decision of Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated:

“In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”

46You instruct that you have been subject to 20-hour lockdown since 30 March 2020 and are no longer able to have actual family visits.  Rather, these occur in limited fashion and virtually.  For someone with close family connection this change will be difficult.  In addition, you are unable to access programs. 

There is no evidence before me that you were accessing programs, but I certainly accept that the inability to access any is an additional disadvantage.

47I accept that the risk of contracting COVID-19 within the prison system is a source of anxiety.  In your case, your father has been recovering from cancer treatment and you remain concerned about his wellbeing.  I have taken these issues into account in a general sense.

48To your credit, you have acknowledged your responsibility for your offending in your early plea of guilty.  This demonstrates a willingness by you to facilitate the course of justice and, importantly, has saved the need for witnesses to attend and relive the circumstances.  All of these factors will be taken into account in your favour.  In the context of the materials before me, I am satisfied your plea of guilty also exhibits some remorse, albeit the focus is more so on yourself and less so on the unfortunate victim.

49I accept that the time that you have spent thus far in custody is the longest you have spent in custody and is capable as acting as both a sanction and as a deterrent into the future. 

50You are well supported by family, who offer you a foundation upon your eventual release to the community.  They are now fully aware of your drug use and abuse and the circumstances of this offending.  In effect, your dirty laundry has been aired, which puts you in a good place to properly utilise the supports which they offer you.  With the clarity of an extensive period without drug use, you do intend to take up your sister's offer to reside with her and to work in her husband's family business.  You have engaged legal representation to obtain some form of access to your children.  I encourage you to pursue this.  You understand that access simply cannot happen without a one step at a time approach and that you really will have to be abstinent from drugs.

51The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.  I am also required to balance the interest of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

52I have taken into account the relevant sentencing guidelines referred to in
s.5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty.

53Both parties submit that the relevant sentencing considerations can be reflected in what is described as a combination sentence; that is, a period of imprisonment in combination with a community corrections order, which would be used to supervise you in the community, thereby supporting your transition or responding to any transgression.  The Crown’s submission is that in terms of the balance between imprisonment and corrections order, you are yet to serve sufficient time in custody when taking into account the relevant sentencing considerations.  I do accept that submission.

54I have had you assessed as to your suitability for a community corrections order as I simply cannot place you on such an order without such an assessment being undertaken.  A report dated 5 May 2020 has been received.  You are assessed as presenting with a high risk of reoffending. 

55Your prior involvement with Community Corrections Services is outlined in that report.  In terms of your previous involvement, you are described as being largely compliant with directions but engaging in what was described as a superficial level in offence-orientated discussion.  According to the author of that report, your thinking has shifted and you identify your drug use as the primary factor in your offending and non-compliance with previous corrections orders.  You are assessed as being suitable for a community corrections order.

56I intend to propose an aggregate sentence and I just realised I have not asked either of the parties whether they say I can or cannot.  Mr Raimondo?

57MR RAIMONDO:  Yes, Your Honour, you can impose one.

58HER HONOUR:  All right.  Any issue from your end?  Thank you.  Any issue from your end, Ms Ristivojevic?

59MS RISTIVOJEVIC:  No, Your Honour.

60HER HONOUR:  All right.  Thank you to each of you.

61I do propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form, or are part of, a series of offences of same or similar character.  In so doing, I also bear in mind the principles of totality and proportionality, which also have application.

62In relation to the two charges on the indictment, you are convicted and sentenced to 18 months imprisonment in combination with a community corrections order of 18 months duration.  382 days will be reckoned has having already been served.

63In addition to the conditions that I impose, which include 175 hours of community work, supervision by the Office of Corrections, treatment for drug use, offence-specific treatment which may or may not be identified by the Office of Corrections, I offset 75 hours of treatment against the community work component; that is, the more treatment that comes off the community work instead of you having to actually do that.

64In addition to the conditions that I have imposed, there are what are called standard conditions.  The first and foremost of those is obvious:  you must not commit any other offences during the 18-month period which could be punished by imprisonment.  You must also report within two working days of your release to the nearest Community Corrections Office, which I understand to be Shepparton.  You are required to advise your supervising Corrections officer of any change of address of where you are living or working and must do so within two clear working days.  It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of the Corrections officer.  You cannot leave Victoria without prior permission of your supervising Corrections officer.

65This order, in my view, presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available.  The order can be breached if you do not comply with it in terms of the conditions or, as I have said, reoffend whilst it is in place.  If you do, you will have to reappear before me for breaching the order.  I may have to resentence you on the original charges and for contravening the Corrections order.  I can only place you on that order if you are prepared to sign documents to that effect.  Are you prepared to do so?  Thank you. 

66Mr Raimondo, I did not understand that there were in fact any ancillary orders; is that right?

67MR RAIMONDO:  That's correct, Your Honour.

68HER HONOUR:  Thank you.

69Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a sentence of 30 months, with a minimum of 22 months before being eligible for parole.

70Now, we are going to have to do this one at a time.  Mr Raimondo, anything arising?

71MR RAIMONDO:  No, Your Honour.

72HER HONOUR:  Ms Ristivojevic?

73MS RISTIVOJEVIC:  No, Your Honour.

74HER HONOUR:  Thank you.  Mr Selman, it will take some time for those documents to come through.

75OFFENDER:  Yep.

76HER HONOUR:  What I will do in a moment is stand down so that you can speak to Ms Ristivojevic and your solicitor privately whilst the link is up.

77OFFENDER:  Yep, yep.

78HER HONOUR:  So I will excuse you, effectively, Mr Raimondo, and thank you very much for your assistance.  Ms Ristivojevic, thank you for yours.  At this stage I will effectively close the court.

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