Director of Public Prosecutions v Stojanovic
[2021] VCC 551
•5 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00308
Indictment No. K13303408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ILIJA STOJANOVIC |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 April 2021 |
DATE OF SENTENCE: | 5 May 2021 |
CASE MAY BE CITED AS: | DPP v Stojanovic |
MEDIUM NEUTRAL CITATION: | [2021] VCC 551 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Possession of a firearm in contravention of a firearm prohibition order; resist an emergency worker on duty; prohibited person in possession of an imitation firearm; trafficking in a drug of dependence; 15.8 grams of methylamphetamine; theft; handling stolen goods; prior convictions; offence committed whilst subject to a community correction order; early plea of guilty; moral culpability high
Legislation Cited: Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Acciarito v The Queen [2019] VSCA 264; Barbaro & Zirilli v The Queen [2012] VSCA 288; Berichon v The Queen [2015] VSCA 151; DPP v Graoroski [2018] VSCA 332.
Sentence: 48 months imprisonment with a non-parole period of 32 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Office of Public Prosecutions |
For the Accused | Ms J. McGarvie | Sarah Pratt & Associates |
HER HONOUR:
Introduction
1Ilija Stojanovic, the events giving rise to your sentencing today occurred on 24 December 2019. In the morning of that day you and two associates, Zoran Djukic and Ilija Skoric were sitting around a table in the carport of Mr Djukic's house in Dandenong when three police officers arrived unexpectedly. They were there to investigate an earlier incident in which Mr Djukic was the victim but were clearly unwelcome at that moment as you and your associates were smoking ice and in possession of more ice and firearms.
2Upon seeing the police Mr Djukic immediately placed an iPad down on the table and walked towards them. You also stood up and attempted to walk past the police, who stopped you. You then tried to push past them, at the same time throwing a gun from your waist region towards Mr Djukic. The gun bounced off Mr Djukic's chest and came to rest on the bonnet of a parked car.
3You continued to resist and were struck several times before the police were able to subdue, handcuff and arrest you.
4The gun you threw was found to be a loaded five-shot revolver. Underneath the iPad was found a gold imitation handgun. On the table in front of where you had been sitting was a plastic container with three Ziploc bags containing a total of 15.8 grams of methylamphetamine. Next to the plastic container was your wallet, a set of car keys and a mobile phone with your fingerprint. Another Ziploc bag containing 1.1 gram of methylamphetamine was found in the garden bed close to where Djukic had been standing. On the wall in the carport was a ledger obviously detailing drug transactions.
5The car keys were to a 2017 Audi S3 coupe parked in the driveway, which was affixed with stolen New South Wales number plates. The car was valued at $54,000 and was stolen on 8 December 2019. Your fingerprints were located on the inside rear-view mirror and outside driver's side window of this car.
6Police seized the items I have already mentioned, as well as another three mobile phones and $2,190 in cash.
7You were interviewed at the Dandenong police station and made no comment. You were charged and remanded in custody, where you have been ever since. Mr Djukic was also arrested and charged, and his matter has not yet been finalised.
8On 7 April 2021 you pleaded guilty before me to the following offences:
Charge 1: Possession of a firearm in contravention of a firearm prohibition order contrary to s.112B of the Firearms Act1996. That charge is punishable by a maximum term of 10 years' imprisonment. This relates to the loaded revolver you threw at Mr Djukic. The firearm prohibition order was served on you on 30 May 2018 and prevented you from acquiring, possessing, carrying or using a firearm.
Charge 2: Resisting an emergency worker on duty contrary to s.31(1)(b) of the Crimes Act1958, which carries a maximum penalty of five years' imprisonment. This relates to your resistance of the police officers.
Charge 3: Prohibited person in possession of an imitation firearm contrary to s.5AB(2) of the Control of Weapons Act1990. This obviously relaters to the imitation handgun, and you are a prohibited person by virtue of your prior convictions.
Charge 4: Trafficking in a drug of dependence contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act1981, which carries a maximum term of imprisonment of 15 years. This relates to the 15.8 grams of methylamphetamine in the plastic container on the table, not the 1.1 grams in the separate Ziploc bag. That is, it does not include the 1.1 grams in that bag.
Charge 5: Theft contrary to s.74 of the Crimes Act 1958, which carries a maximum term of 10 years' imprisonment. This relates to the Audi and is put on the basis that you used the car, not that you stole it initially.
Charge 6: Handling stolen goods contrary to s.88 of the Crimes Act 1958, which carries a maximum penalty of 15 years' imprisonment. This relates to the stolen number plates that were on the Audi.
9A plea on your behalf was conducted before me on the same day and it now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which are sometimes complementary and sometimes contradictory in nature[1]. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.
[1] Section 5(2) of the Sentencing Act 1991.
Personal circumstances
10Turning first to your personal circumstances. These were outlined in defence submissions and a 2019 report of consultant psychologist Miriam Latif, which was prepared in relation to an earlier court appearance. Ms Latif saw you by video link on 19 August 2019 for two hours, that is, prior to the current offending.
11You were 30 years old at the date of the offending and are now 32.
12You were born in Novi Grad, a small farming village in Bosnia, and were the only child of your parents. You experienced significant hardship, poverty and trauma in your childhood because of the Bosnian War. You were exposed to constant bombing, gunfire and danger. By the time you were seven or eight you knew how to handle a gun.
13When you were five or six years old your parents were imprisoned in separate war camps and subjected to violence. There are differing accounts of whether you lived with your grandparents or went with your mother at this time. In any event you told Ms Latif that you were constantly worried your parents would be killed. After your family was reunited you were relocated to a village 200 kilometres from your home.
14When you were 10 you and your parents came to Australia as refugees, eventually settling in Hampton Park. You spoke no English, had no money and minimal possessions. Your mother worked as a cleaner for 15 years and your father worked as a painter for 17 years. They are now both in receipt of the Disability Support Pension due to post-traumatic stress disorder. You are still close to them.
15You found school in Australia difficult. There were communication issues and you were conscious of your material deprivations. You fought with other students and described yourself as an 'angry kid'. You left school after Year 10 and began working as a painter with your father. Unfortunately, you also began experimenting with illicit substances. Your first court appearance was in 2012, when you were 23, where you received a without conviction fine for possessing cocaine, possessing an unregistered handgun and possessing a controlled weapon.
16You worked with your father until you were 25, when you went out on your own. You ran your own painting business for two years. When you were 27, in 2016, a significant relationship broke down and you descended into serious drug abuse, particularly methylamphetamine, and further offending.
17You completed residential drug rehabilitation in 2017 and were apparently abstinent for a year following. You also achieved abstinence whilst on parole in 2018 to 2019.
18Ms Latif diagnosed you with post-traumatic stress disorder, substance use disorder, ADHD and adjustment disorder with mixed anxiety and depressed mood. She considered that these conditions, particularly your poor coping ability, contributed to your drug abuse but did not play a direct role in your offending behaviour, which was mainly caused by your drug use. You have not had any treatment for your mental health apart from drug counselling.
19You have been productive in custody, working as a unit billet, which required you to complete a training course on safe cleaning during COVID-19. You are in the process of applying for a position as a peer educator, which suggests that you have been drug and incident free during your time in prison. At the time of the plea you were on the methadone program and were considering buprenorphine.
Objective gravity of your offending and moral culpability
20I turn now to the objective gravity of your offending and your moral culpability. Your offending is objectively serious. It occurred less than a month after you were released from prison for offences including theft of a motor vehicle and trafficking in methylamphetamine. It occurred whilst you were on a corrections order for those offences.
21Whilst all your offending is serious, the most serious is your possession of the firearms, particularly the loaded handgun. You instructed your counsel that you had the firearms essentially for self-defence in the context of your drug use and association with other drug users. When pressed, Ms McGarvie abandoned that claim, which was of dubious mitigatory effect in any event, and accepted that your possession was associated with ongoing criminal activity; although, she submitted, not necessarily drug trafficking. Your possession of firearms in connection with other criminal activity, whatever that may be, aggravates your offending.[2] Further, whatever your purpose, your possession of a loaded revolver in circumstances where you were in fact trafficking in drugs is particularly serious because of the obvious risk that the gun might end up being used to cause injury or death.[3]
[2]Berichon v The Queen [2015] VSCA 151.
[3]DPP v Graoroski [2018] VSCA 332 at [38].
22There is no doubt you knew you were prohibited from possessing firearms both by virtue of the Chief Commissioner's Prohibition Order and by virtue of your criminal history. Moreover, this is the third time you have come before the court for the illegal possession of firearms.
23The trafficking charge is based on your possession of 15.8 grams of ice on a single day for the purpose of sale. This is more than five times the trafficable quantity of 3 grams but well short of a commercial quantity of 50 grams.[4] I accept there is no evidence of a significant ongoing enterprise and that your offending occurred in the context of your own addiction. I would categorise it as lower-range trafficking. That is not to say it is not serious, rather it is to rank it on the scale of seriousness for that offence. I also make clear that I do not treat your possession of the firearms as an aggravating feature of this offence.[5]
[4] The statutory sentencing regime for all drug trafficking offences in Victoria is quantitative rather than qualitative, that is, it is based on the quantity of the drug trafficked, rather than any sort of subjective assessment of its deleterious effects. This means, for example, that trafficking in a traffickable quantity of ice is no more serious than trafficking in a traffickable quantity of cannabis, all other things being equal. It also means that the greater the relative quantity trafficked the more serious the offence, again all other things being equal.
[5] In accordance with Acciarito v The Queen [2019] VSCA 264.
24Ms McGarvie submitted that your resisting of the police fell within the lower range of seriousness as it consisted of simply pushing past them. I accept the prosecutor's submission to the contrary that your simultaneous throwing of a loaded firearm aggravates this offence. Further you have a number of relevant prior convictions where you have either resisted or attempted to evade apprehension by police.
25Your cavalier use of a high-value car which you knew to be stolen and which you disguised with stolen number plates is also serious conduct. You had no regard to the inconvenience and stress, at the very least, you caused the owner. Further, this is the fifth time you have been sentenced for theft of a motor vehicle.
26Ms McGarvie, again quite rightly in my view, specifically disavowed any reliance on the principles of Verdins as reducing your moral culpability. I do take into account your disadvantaged background and psychological conditions; however, I consider your moral culpability for all offending to be high. You have prior convictions for the same or similar offences. You were well aware of the importance of abstaining from ice upon your release from prison.
27In her report, which was prepared for the purpose of the matters for which you were released from prison in November 2019, Ms Latif said:
'In my opinion his substance abuse is a direct contributing factor to the offending and it is imperative he cease illicit substance use to reduce his risk of reoffending significantly in the future. Should this not occur the likelihood that Mr Stojanovic will commit similar offences is high'.
28You knew that taking ice would put you back into the criminal milieu and likely lead to further offending and yet you chose to do it. You did it even though you had just got out of prison and even though you were subject to a court order.
Current sentencing practices
29One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices, which may be gleaned from statistics or sentences imposed in other cases or both. The rationale for doing this is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
30Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
31I am grateful to prosecution and defence for providing me with examples of sentences imposed in other cases involving the illegal possession of firearms – albeit not necessarily for precisely the same offences – and also for drug trafficking and resisting police. The prevalence of the combination of illegal firearms and drugs is noteworthy. I have had regard to those cases, which I shall not list here, but of course ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
32Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[6] I have not received any victim impact statements but assume the victim of the theft of motor vehicle has suffered, as I have already mentioned, as does society generally by way of increased insurance premiums. Further the devastating effect of ice on our community is well known. , The risk to our community from the illegal possession and use of firearms is also something that is well known.
[6]Sections 5(2)(daa), (da) and (db) of the Sentencing Act 1991
Plea of guilty, co-operation and remorse
33You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing you have facilitated the course of justice and taken legal responsibility for your crimes. This is particularly valuable in the current environment where COVID-19 has placed the criminal justice system under considerable strain.
34Ms McGarvie submitted that your plea was accompanied by remorse. Whilst a plea of guilty may indicate remorse, it is not of itself proof of remorse. People can plead guilty for many reasons, including pragmatism. In that regard it has to be said that you were effectively caught red handed. Further, as the courts have made clear, true remorse is not anxiety at the prospect of being punished nor simply regretting one's conduct. True remorse involves a desire to make amends and a determination to change one's behaviour.[7] In your case, although you apologised for the hurt you caused your parents, those words of apology sound empty in the face of your lengthy criminal history. I am not persuaded that you are truly remorseful for your crimes, as opposed to being sorry that you were caught.
[7]Barbaro & Zirilli v The Queen [2012] VSCA 288 at [36].
35The fact I have not been persuaded of your remorse is not aggravating, it simply means you do not get the benefit of the additional discount in sentence to which you would be entitled had I so found.
Your character and risk of reoffending
36Turning to your character and risk of reoffending, your criminal history suggests your prospects of rehabilitation are bleak. At 32 you are on the cusp of throwing your life away by your repeated criminal behaviour. As I said to you during the plea hearing, you have something that many other people who appear in our courts do not have: you have a trade, and you have supportive parents. For those reasons and because of your age, I do not regard you as beyond hope. You know that your future depends on your abstinence from drugs and the cessation of your attraction to guns. It is possible you will come to your senses. I have read the character reference from your father and the character reference from your family friend and it says something about you that they are still prepared to support you after all you have put them through.
The burden of imprisonment
37In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. There is no evidence that your various psychological conditions will make a term of imprisonment harder for you than a prisoner not suffering from those conditions, and I note you have been sentenced to terms of imprisonment previously. However, I do take into account that your time on remand has been harder on account of the COVID‑19 pandemic and that your future imprisonment will likely also be harder. I accept that a term of imprisonment during the pandemic is generally harder than at other times. Whilst the worry of contracting the virus in prison has probably abated with time, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.
Purposes of sentencing
38In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.
39A custodial sentence must only be imposed as a last resort, but it is conceded to be the only appropriate disposition in your case. That said, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes. Further, when there are multiple charges, as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. I have sought to ensure that that does not happen by my various orders for cumulation and concurrency.
40Your crimes demand that my sentence denounce your conduct and deter others from similar behaviour. Your prior criminal history also gives rise to the need for my sentence to specifically deter you and to protect the community from you. At the same time the requirement of just punishment requires that in fixing my sentence I take into account the various mitigating factors that apply to you and I do so. I have already outlined those factors in detail during the course of these remarks.
41Ms McGarvie urged that I allow for your potential rehabilitation by allowing for a lengthy period on parole, noting that you responded well to parole in 2018 to 2019 and that you would benefit from targeted mental health treatment as well as drug rehabilitation. Of course, the best way that community protection can be achieved is by your rehabilitation.
42Now can I enquire with counsel before I proceed to pass sentence what is the pre‑sentence detention?
43MS DICKENS: Your Honour, it's been calculated at 498 days.
44HER HONOUR: And that's not including today?
45MS DICKENS: Not including today.
46HER HONOUR: All right, thank you. I'll just get Mr Stojanovic to speak again so I can see him, because I've lost him from the screen.
47OFFENDER: Yes, Your Honour.
48HER HONOUR: All right, thank you.
Sentence
49On Charge 1, which is the possession of a firearm in contravention of a firearm prohibition order, I convict and sentence you to 28 months. That is two years, four months and that is the base sentence.
50On Charge 2, which is resist an emergency worker, I convict and sentence you to eight months' imprisonment.
51On Charge 3, which is a prohibited person in possession of an imitation firearm, I convict and sentence you to 18 months' imprisonment. That is 18 months.
52On Charge 4, which is the trafficking in methylamphetamine, I convict and sentence you to 18 months' imprisonment.
53On Charge 5, which is the theft of motor vehicle, I convict and sentence you to eight months' imprisonment.
54On Charge 6, which is the handle stolen goods, I convict and sentence you to four months' imprisonment.
55I direct that four months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 3, eight months of the sentence imposed on Charge 4, five months of the sentence imposed on Charge 8 and one month of the sentence imposed on Charge 6 be cumulative on each other and on the sentence imposed on Charge 1. So that makes a total effective sentence of 48 months, or four years, and I set a non-parole period in respect of that sentence of 32 months. In other words two years, eight months.
56So, Mr Stojanovic, you are familiar with the parole process. You understand that that means that is the earliest time at which you can be released. That is two years and eight months. It is up to the Adult Parole Board as to whether or not you are released at that time.
Section 6AAA
57If you had not pleaded not guilty to those charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of six years with a non-parole period of four years and six months.
LMV
58Pursuant to s.89 of the Sentencing Act1991 I am required to cancel and disqualify your driving licence on Charge 5 for such period as I specify. That is the theft of motor vehicle.
59I cancel your licence if you have one and disqualify you from obtaining a further licence for three years effective from the date of your arrest, namely 24 December 2019.
Presentence detention
60I declare that you have served a total of 498 days pre-sentence detention, not including today, in respect of the sentence that I have imposed and order that this declaration be entered in records of the court and that the period be deducted administratively.
61As I understand it there are no ancillary orders being sought by the prosecution. So are there any other matters that counsel wish to raise with me?
62COUNSEL: No, Your Honour.
63HER HONOUR: Thank you. Mr Stojanovic, you understand the sentence that I have imposed?
64OFFENDER: Yes, Your Honour.
65HER HONOUR: All right, thank you. We'll adjourn the court.
66MR DICKIE: If Your Honour pleases.
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