Director of Public Prosecutions v Stojcevski

[2017] VCC 1981

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01414

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL STOJCEVSKI

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v Stojcevski
MEDIUM NEUTRAL CITATION:	[2017] VCC 1981

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Robbery - false imprisonment

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Ms H. Bate Mr N. Marcevski	Marcevski Lawyers

HIS HONOUR: 

1Michael Stojcevski, you have pleaded guilty to one charge of robbery and one charge of false imprisonment. 

2The maximum penalty for robbery is 15 years' imprisonment and for false imprisonment 10 years' imprisonment.

3You were born on 7 June 1991 and are currently 26 years old.  At the time of the offending you were 25 years old. 

4Your co-offender Murat Yolcu, who I sentenced in this court on 19 October this year, was born on 12 March 1989 and is currently 28 years old. 

5You have a brief criminal record about which I will go into more detail shortly.

6At the time of the offending the victim, Nidhiraj Singh, was 23 years old and had travelled from New South Wales to Melbourne for the weekend to work. 

7On Saturday 25 March 2017 at 2 am, Mr Singh left a bar on Swanston Street in Melbourne and started to walk along Lonsdale Street towards his accommodation.  He was alone. 

8As he was walking, both you and Mr Yolcu approached him.  Nobody else was nearby at the time. 

9You told Mr Singh to kneel on the ground.  You both started racially abusing and threatening him, saying things such as, "We're sick of you Indians coming and thinking you’re top shit."  One of you said, "Do you want to get hit?"  Inferring that you would do so, Mr Singh knelt on the ground.

10You demanded to see Mr Singh's mobile phone and told him to stand up.  You were both standing about a metre in front of Mr Singh.  You told him to reset the phone to its factory settings, which Mr Singh said that he did not know how to do.  You said, "Don't play dumb" a few times.  Mr Singh was then directed how to reset the phone, which required that he enter a password to his iCloud account.  Mr Singh said he did not know the password, to which you both repeatedly said, "Stop playing dumb.  Do you want to get hit?"  This continued for about 15 minutes.

11During the incident you demanded that Mr Singh show you his wallet and hand over any money he had.  Mr Singh produced $45 cash, which you took, handing $40 of it to Mr Yolcu.

12At some stage the two of you told Mr Singh to sit on a nearby park bench.  You continued to demand that he reset his phone.  Mr Singh attempted to unlock the phone by answering a security question instead of entering the password.  He guessed that the answer was his date of birth, but this was incorrect. 
Mr Singh produced his driver's licence to show you both that he had entered his real birth date.  Mr Yolcu took the licence and photographed it on his phone and kept the licence.

13Eventually the two of you told Mr Singh he had five minutes to unlock and reset the phone or he would "get hit".  Mr Yolcu started a five-minute timer on his own mobile phone.  Mr Singh continued to try to log in without success.  He said he felt "horrible and very threatened".  With 15 seconds to spare Mr Singh was finally able to reset the password by an email to his hotmail account and restore the phone's factory settings. 

14Mr Yolcu took Mr Singh's phone from his hand.  You both asked how much money Mr Singh had in his bank account, to which he responded, "Maybe $200".  You, Mr Stojcevski, said, "Give us the money and you can go".  You both took Mr Singh to a nearby ATM and hid behind a pole while Mr Singh withdrew $150, which was as much as he had available in his account. 

15The two of you discussed what you should do next to ensure Mr Singh did not report the incident to police.  You initially mentioned taking Mr Singh with you to Sunshine, but eventually decided to take him to a nearby park.  All the while both of you threatened Mr Singh, saying that you had his licence and you knew where he lived, and things like, "Do you want to see your mum again?"  While you were walking near Flagstaff Gardens you demanded Mr Singh's watch, which he had hidden in his back pocket.  Mr Yolcu took the watch from
Mr Singh.

16The two of you and Mr Singh walked until you ended up near Festival Hall in West Melbourne.  Eventually you both hailed a taxi and demanded that
Mr Singh get in with you.  Mr Yolcu sat in the front and you, Mr Stojcevski, sat in the back next to Mr Singh.  Mr Yolcu directed the taxi to a residential area in Burnside Heights where all three of you exited the car and started to walk off towards a park.  When the two of you were then a few metres ahead of him, Mr Singh ran back towards the taxi and got inside.  He told the taxi driver what had happened and borrowed his mobile phone to call a friend.  The taxi eventually dropped Mr Singh at home around 4 am.  The following morning Mr Singh called his parents, who told him to report the incident to police. 

17Parts of the incident were captured on CCTV from cameras around the Melbourne CBD and inside the taxi.

18Five days later, on 30 March 2017, police executed a search warrant at your home.  Clothing matching that worn by one of you in the CCTV footage was located.  You were arrested and conveyed to the Melbourne West Police Station where you participated in a record of interview.  You made general admissions to the offending and told police that Mr Yolcu was the main offender.

19On the same day police executed a search warrant at Mr Yolcu's home.  At that house police found Mr Singh's driver's licence, his Tissot watch and clothing which matched that worn by the other offender as captured on the CCTV footage.  Mr Yolcu was arrested and answered “no comment” in an interview process.   

20You were both charged and transported to the Melbourne Magistrates' Court for a filing hearing and remanded in custody.

21Both matters resolved at the first committal mention on 22 June 2017.  You each indicated an intention to plead guilty and sought that the matters be heard as a plea hearing in the summary stream of the Magistrates' Court.  Both cases were listed for a contested summary jurisdiction application on 13 July 2017. 

22Mr Yolcu ultimately withdrew his application for summary jurisdiction.  Your application for summary jurisdiction proceeded but was refused by the magistrate.  You were both committed to the County Court for a plea hearing by way of straight hand-up brief.

23You were remanded in custody on 30 March 2017.  You were subsequently granted bail on 7 April 2017 and have accordingly served nine days pre-sentence detention. 

24Mr Singh declared a victim impact statement on 27 June 2017.  He did not wish for it to be read aloud.

25I now turn to your personal circumstances. 

26As I noted earlier, you are currently 26 years old and at the time of the offending you were 25. 

27Your prior criminal history comprises one appearance at the Sunshine Magistrates' Court in March 2016 when, for unlawful assault and criminal damage charges, without conviction you were put on a  six-month community correction order.  I note that you successfully completed this order.  I also note both the nature of this previous offence as well as the circumstances of your attendance at court on the day of the hearing very much reduced the objective seriousness of this offence for the purposes of this sentence.  

28Throughout your childhood you were exposed to a sustained period of hostile verbal and physical abuse from your father, and he eventually “disowned” you in April this year when he learned about the current charges.  Your mother separated from him in 2014. 

29You experienced significant learning and socializing difficulties at school from a young age.  This was recognised as a disability by your teachers and you received disability support for individual learning.  This had an adverse effect on you because you did not want to be seen to be different to the other students and your mother did not see you as someone who was disabled. 

30You continued to struggle throughout high school and left halfway through Year 10 and commenced a TAFE course which you were unable to complete before the end of the first year.  Your difficulties were compounded by your father's disparaging remarks about your progress and very cruel comparison with your brother.  You have subsequently been employed in both full-time and part-time employment, but again experienced difficulty in managing social interaction in the workplace.  You are currently engaged with a cargo container agency awaiting casual employment.

31Your difficulties were first formally assessed when you were aged 12 in Grade 6.  A report from Ms Scorgie, a psychologist, was tendered which diagnosed intellectual disability and associated adaptive behaviour issues at that time. 

32In April this year you were placed on a Mental Health Plan by Dr Hussain, in addition to prescription medication for depression and anxiety and referral to Ms Heidi Lecluse, consultant psychologist.

33Two reports from Ms Lecluse were originally tendered and a further one tendered today.  Ms Lecluse confirms the earlier diagnosis of moderate to severe intellectual disability and opines that it has become more pronounced over time because of a lack of targeting or ongoing intervention.  In addition, Ms Lecluse considers that you also suffer from post-traumatic stress disorder consequent upon your exposure to domestic violence and high levels of anxiety and depression. 

34You have maintained regular psychological support with Ms Lecluse since April this year and continuing through this month.  This has continued on a monthly basis and you have shown commitment in your attendance.

35Ms Lecluse conducted a formal assessment for your introduction into the National Disability Scheme.  This will allow your family access to social, community and ongoing professional support services to support your mental health issues. 

36As a result of the evidence placed before me, I referred you for assessment as to intellectual disability and, if so found, a Justice Plan and a plan of available services. 

37A Justice Plan has been approved and was authorised by the Department of Human Services on 14 December 2017.

38Character reports were provided from the Very Reverend Pesovski and the managing director of a company you recently worked for.  I have also been assisted by an account of your background and recent history provided by your mother.

39The offending obviously is very serious.  Robbery committed in company against vulnerable and lone victims in the street late at night, and in this case keeping your victim contained as you did over an extended period of time, is to be greatly deplored.  The offending was accompanied by threats of violence at the time and intimidation by further threats on the basis that the victim was told you knew where he lived.

40Apart from matters of specific deterrence to you, these are crimes which require emphasis in sentencing of what the law calls general deterrence.  That is, the sentence you receive is partly designed to deter others from engaging in the same type of conduct.  Other considerations include denunciation by the court and the protection of the community, balanced with your personal circumstances and matters in mitigation.  In this particular case those matters do receive some necessarily significant emphasis and reduction of what otherwise would be applied in specific and general deterrence.

41The impact on Mr Singh is evidenced in the victim impact statement.  It was undeniably a very frightening experience. 

42In mitigation I take into account the submissions of your counsel and in particular I accept:

·    your plea of guilty and the early time at which it was entered, both for its utilitarian value and expression of some remorse;

·    your cooperation with the police;

·    that your victim did not suffer any physical injury;

·    your ability to gain and maintain employment in difficult circumstances;

·    the strong support you have from your mother and your brother;

·    the absence of any issue with alcohol or drugs;

·    and in particular your mental health disabilities and the commitment you have demonstrated to receiving assistance.

43As to parity, I sentenced Mr Yolcu in this court on 19 October 2017 to a term of imprisonment of 24 months with a 16-month non-parole period. 

44There are several features, however, which distinguish your circumstances from those of Mr Yolcu.  These include:

a)Mr Yolcu had a prior conviction for the more serious offence of armed robbery;

b)Mr Yolcu's offending on the present offence breached a community correction order imposed and current for his past offending;

c)Mr Yolcu is three years older than you; and

d)whilst Mr Yolcu had a longstanding history of depressive disorder, your mental health condition is significantly more serious and extends to reduce the moral culpability of your offending and disadvantage you in a prison environment.

45Balancing all the circumstances, in my view your rehabilitation is the principal factor to be applied in this case and in my view this is in the ultimate best interests of the community.  I propose to sentence you in a manner which is directed to that end.

46Mr Stojcevski, could you now please stand.

47On Charges 1 and 2 you are convicted and ordered to serve a community correction order for a period of two years. 

48The order commences today, 20 December 2017, and ends on 19 December 2019. 

49The corrections centre you will attend is the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, and you must attend there within two clear working days of today, that is, by 4 pm this Friday 22 December.  Do you understand that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  That is the final time.  You really should try and get there this afternoon or tomorrow, but you must attend there by 4 pm this Friday coming.

52OFFENDER:  Yes, Your Honour.      

53HIS HONOUR:  All the mandatory, that is, the compulsory, terms of the community correction order apply and the additional conditions I impose are that:

·    you be under the supervision of a community corrections officer;

·    you perform 150 hours of unpaid community work over a period of two years as directed by the regional manager;

·    you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager;

·    you attend for judicial monitoring here in court before me on 20 March 2018 at 10 am; and

·    you participate in the services specified in a Justice Plan.

54You will be assisted by the Social Services and Correctional personnel about that and you will get great support and directions and assistance by that Justice Plan.

55I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you; however, it is appropriate that I briefly summarise them here so that you are very clear about them.  The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·    you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2012, which essentially set out your obligations as to your attendance at the community corrections centre - such things as not attending drug or alcohol-affected, that is what those regulations are all about - that should not be a problem for you;

·    you must report to and receive visits from a community corrections officer;

·    you must report to the community corrections centre, that is the Sunshine centre, by 4 pm on Friday 22 December;

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·    you must obey all lawful instructions and directions of community corrections officers - such directions may be given either orally or in writing.

56If you become sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Sunshine community corrections centre and I recommend that you obtain legal advice if any of these things happen.

57However, I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me.  One of the options open for me is to cancel the community correction order and resentence you on the original charges and I may also deal with you for the breach, which is itself an offence, by sending you to prison for up to three months.

58First of all, do you understand and agree to the conditions of the community correction order?

59OFFENDER:  Yes, Your Honour.

60HIS HONOUR:  Do you understand the consequences of breaching your community corrections order?

61OFFENDER:  Yes, Your Honour.

62HIS HONOUR:  All right.  I will ask you to sign the community correction order shortly.  You may take a seat for the moment, Mr Stojcevski. 

63At the plea hearing the Crown sought a compensation order on behalf of the victim pursuant to s.86 of the Sentencing Act in relation to the stolen mobile phone and driver's licence, to which you have now consented, and I have made that order today.

64At this stage through you, Mr Marcevski, the community correction order can be provided to you and if you could pass that on to Mr Stojcevski and if you can read it through, and if he agrees for him to sign it please.

65MR MARCEVSKI:  Thank you.

66HIS HONOUR:  Mr Stojcevski can leave the dock for that purpose.

67MR MARCEVSKI:  As Your Honour pleases.  Your Honour, I have read the conditions to Mr Stojcevski.  He understands them and he has agreed to them and he has signed it accordingly.

68HIS HONOUR:  Thank you.  I have now signed that order.  Is there anything else from either counsel?

69COUNSEL:  No, Your Honour.

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