Director of Public Prosecutions v Tolj
[2021] VCC 778
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR-21-00797
Indictment No. L11150064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER TOLJ |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2021 | |
DATE OF SENTENCE: | 11 June 2021 | |
CASE MAY BE CITED AS: | DPP v Tolj | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 778 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery – category 2 offence - participation in in-patient program - encouraging compliance with in-patient program – parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Akoka v The Queen [2017] VSCA 214;
Sentence: 18 months' imprisonment, 12 months’ non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Jones | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms P. Marcou | Markotich Lawyers |
HIS HONOUR:
Introduction
1Christopher Tolj, you have pleaded guilty to one charged of armed robbery contrary to s 75A of the Crimes Act 1958. The maximum penalty for this offence is 25 years' imprisonment.
2
Armed robbery is a, 'Category 2', offence for the purposes of the Sentencing Act 1991. Where an offence is designated as 'Category 2', s 5(2H) of the
Sentencing Act1991 provides that a court must impose a custodial sentence unless one of the exceptions apply. It was not suggested that any of these exemptions applied in this case.
Summary of Offending
3The circumstances of the offending were set out in the Summary of Prosecution Opening for Plea, which was Prosecution Exhibit 1.
4In short, the victim in this matter was a 31 year old man previously unknown to you or your co-accused, Shaun Baensch. At 6.45 pm on Saturday 2 May 2020 the victim sent Danielle Misiti, your then girlfriend, a message through an online dating application. The message suggested that they meet up for a, 'Puff session'.
5
You used Misiti's telephone to respond to that message at 2.53 am on Sunday
3 May 2020. You pretended to be Misiti and told the victim that they ought to meet up. The victim responded to this message with a further message that included photographs of methylamphetamine and his penis. You continued to engage with the victim and arranged a meeting at the victim's residence in Ocean Grove.
6You, Baensch, Misiti, and an uncharged second female then travelled from Geelong to Ocean Grove and arranged to meet the victim in the carpark of the Ocean Grove Hotel. All four of you went in your car to a location in the vicinity of the carpark. Once there, you and Baensch got out of the car, and Misiti and the uncharged female got into the front seats.
7Baensch armed himself with a garden stake from the ground near the vehicle. You removed a long-arm firearm from the boot of the car.
8Misiti drove with the uncharged female in the front passenger seat to the carpark and met the victim, who directed them to the location of his residence. Whilst talking to the victim, Misiti executed a U-turn in the carpark to face the car towards the road. At this time the victim heard yelling voices behind him.
9He turned around to see you and Baensch approaching. You pointed the firearm at his head and said, 'Do you like creeping chicks out online do ya? I'll fucking shoot ya, do you think I won't give a fuck'.
10Whilst pointing the firearm at the victim, you said to him, 'What have you got in your house that we can take?' The victim was then forcibly walked to his residence approximately 200 metres away. Once there, you and the victim entered the premises and Baensch remained outside. Whilst inside you searched the premises. You continued to point the firearm at the victim during this search.
11You left the premises with a ten dollar note, a bag of white crystalline substance believed to be methylamphetamine, and a red Apple iPhone 8. The money and the mobile phone are particularised in the indictment as belonging to the victim (Charge 1 – Armed Robbery).
12You and Baensch then returned to the car and went to Misiti's premises in Grovedale.
Effect on the Victim
13The victim has been afforded the opportunity to provide a Victim Impact Statement but has declined that offer.
Gravity of Offending
14The offence of Armed Robbery is inherently serious. This is evident from the maximum penalty of 25 years' imprisonment.
15This offence involved the brandishing of a firearm. The weapon was not discharged at any point during the incident. There is no evidence as to whether the weapon was loaded. As such, the involvement of the weapon in the robbery could not be proven to have carried some inherent risk to life. I can, however, conclude that you brandished the firearm with the specific intention to cause the victim fear.
16It is accepted by the Crown that the decision to commit the armed robbery was made without any planning. The decision to make a demand for property was a spontaneous, albeit excessive reaction to the victim's conduct.
17However, the decision to scare the victim because of unhappiness that he sent the penis picture to Misiti's telephone was something that you, Baensch, and Misiti had collectively determined to do prior to driving down to Ocean Grove. There was an element of planning in this matter in that the victim was set up and lured out of his premises to frighten him and discourage him from further contact with Misiti.
18The role you played in the armed robbery was significant. You were the person who armed yourself with the firearm and you were the one who took it out of the boot of the car. It cannot be determined on the evidence at what point you decided that your plan to scare the victim would involve the use of the weapon. What can be determined, is that the weapon came from the boot of the car you owned and that you were the one who introduced the firearm into the incident.
19
This is a significant point of difference between you and the co-accused,
Mr Baensch. In his case, I could not conclude beyond reasonable doubt that he had any awareness of the weapon prior to you taking it out of the car.
20You were the one who, whilst pointing the weapon at the head of the victim, made a demand for property.
21While still brandishing the weapon you forcibly walked an unarmed and outnumbered victim 200 metres to his premises, and then inside where he was forced to give you the property, the subject of the charge.
22Whilst Mr Baensch was fully complicit with your actions after making the demand for property, it was you who was always in possession of the firearm during the incident. It was you who made the demand for property, then brandished a weapon in order that the victim comply.
23It is appropriate to sentence you on the basis that your culpability for the offence is somewhat higher than was the case for the co-accused.
24This was a serious example of the offence of armed robbery. The nature of the offending means that the sentencing purposes of both general deterrence and denunciation of the conduct must have significant weight in the sentencing process.
Personal Circumstances
25You are now 28 years old. You were 27 years old at the time of the offence. You were born in Geelong. You are the eldest of three siblings born to Tania Sadler and Michael Tolj, the others being your 23 year old brother and 20 year old sister.
26Your father was born in Croatia. Your parents met in that country and married in 1991. They settled in Geelong in 1993. Your parents ran a scaffolding business which they both worked in.
27Your parents separated when you were in Year 8 at school. Your father moved to Melbourne whilst your mother remained with you and your siblings in the family home in Geelong. Your mother provided a reference to the court.[1] She notes that you assisted her with caring for your younger siblings and that you were significantly impacted by your parent's separation.
[1]Defence Exhibit 2.
28You left school part way through Year 11. You commenced a hairdressing apprenticeship. You did this for 18 months before commencing work with the family scaffolding company. You were a scaffolder in the business for seven years until it went into liquidation in 2017. Subsequent to that, you found full-time employment with a company in Geelong.
29You have a history with drug use. You first used cannabis at age 15. From age 23 you commenced methamphetamine use. You do have a prior criminal history, but it is relatively minimal with no offences relating to violence nor anything involving a sentence of imprisonment.
30I am instructed that the pandemic lockdown, with its restrictions on the construction industry, have had an adverse impact upon your employment. This meant that for approximately two months prior to the commission of this offence you were effectively unemployed. It is in these circumstances that your drug use escalated.
31A psychological report prepared by Mr Patrick Newton was tendered on the plea.[2] He diagnosed you with severe substance use disorder with regard to methamphetamine, GHB, and cannabis. He regarded your condition as being in early remission. Mr Newton considered that you would benefit from structured treatment to ensure that your addiction was comprehensively addressed.
[2]Defence Exhibit 3.
Plea of Guilty
32You have pleaded guilty to this charge at what is conceded to be an early stage in proceedings. The matter resolved on the morning of what were to be contested committal proceedings. As a result of your plea all witnesses were excused. You are entitled to receive a sentencing discount for the utilitarian value of that plea. By that plea, you have spared the time and resources that would otherwise have been expended on contested proceedings.
33The utilitarian value of your plea is especially high in circumstances where pandemic restrictions have resulted in significant backlogs in the court system.
34Based on your plea of guilty, your partial admissions at the time of your police interview, your expressions of contrition to Mr Newton, and most significantly the efforts you have made to address your personal issues that contributed to the offending, I accept that you have genuine remorse for the offending.
In-patient Treatment
35
You served 47 days in custody prior to being released on bail on 3 February 2021. It was a condition of that bail that you reside as an in-patient at the Refocus alcohol and drug rehabilitation program. During the plea I have had evidence provided both by way of tendered documents,[3] and by the direct testimony from
Barbara Kustra who is the director of Refocus.
[3]Defence Exhibit 4.
36
The evidence shows that you spent a total of 126 days in residential rehabilitation at that facility. Ms Kustra gave evidence of the highly structured regime to which you were subject. I accept that the restrictive nature of the Refocus in-patient program should be considered to have a punitive component such that the principles in Akoka v the Queen[4] are applicable. Consistent with those principles, I regard your time in residential rehabilitation as part of the intuitive sentencing synthesis, rather than accounting for it as a day by day reduction equivalent to
pre-sentence detention.
[4]Akoka v The Queen [2017] VSCA 214 (‘Akoka’).
Prospects of Rehabilitation
37Your participation in that in-patient program, and your very encouraging compliance with that program, is also significant in assessing your prospects of rehabilitation. You have pleaded guilty and showed remorse for the offending. You have very limited prior criminal history. You have strong support from your family. You have a good work history. All these matters contribute towards an optimistic assessment of your rehabilitation. You are at 28, still a young man if at the upper range of what might be considered youthful for the purpose of sentencing.
38Against that, the offending itself was committed whilst under the influence of drugs and was very serious. This conduct was committed only 13 months ago. It is evident also from both the psychological material[5] and your mother's reference,[6] that your problems with drug addiction are relatively long-standing. Some caution in assessing your prospects of rehabilitation is appropriate, notwithstanding the very encouraging progress you have made in recent months.
[5]Defence Exhibit 3.
[6]Defence Exhibit 2.
39Overall, I consider that you have good prospects of rehabilitation, and that this prognosis will continue to improve so long as you maintain your current positive attitude towards engaging with appropriate drug rehabilitation services.
40The substantial efforts you have made with regard to your rehabilitation and the insight that reveals, diminishes the need for the sentence to specifically deter you from further offending. I place only limited weight on specific deterrence for this reason.
Parity
41Your co-accused, Mr Baensch, was sentenced to 15 months' imprisonment with a non-parole period of 9 months for the charge of armed robbery. It is necessary to consider the principles of parity with the Baensch sentence in determining your sentence. There is no need to consider the Misiti sentence as she pleaded guilty to lesser offences in the Magistrates' Court.
42You and Mr Baensch were both of similar age. Both of you used drugs prior to the commission of the offence. Both of you had long-standing drug problems. Both of you pleaded guilty at an early stage in proceedings, albeit Mr Baensch slightly earlier. Both of you made admissions to the police, though yours were partial and Mr Baensch's were fulsome. Both of you were found to have remorse. Both of you have family support and a similar employment history.
43
As result of your time in in-patient residential rehabilitation, you can rely on the principles outlined in Akoka in mitigation of sentence. This was not a feature of
Mr Baensch's plea. I also have regard to the fact that your prospects of rehabilitation are slightly more optimistic than I found Mr Baensch's to be.
44Mr Baensch had a significantly lengthier criminal history than you do. Unlike him, you do not have any history for breaching court orders. Neither of you had any relevant violent priors, and the nature of the offences in Mr Baensch's criminal record was similar to that found in yours.
45It is appropriate in my view that there be some disparity between the sentences imposed on you and your co-accused.
46I have already noted that I consider your culpability for the armed robbery to be somewhat higher than that of Mr Baensch.
47A key consideration in sentencing your co-accused was that he provided an undertaking to give evidence for the prosecution if required. His cooperation was determined to be of significant value to the prosecution. He gave that undertaking in circumstances where he reasonably perceived he was subjecting himself to the risk of retributive violence.
48
The most significant matter in mitigation that was present in your case but not
Mr Baensch's was the time you spent in restrictive in-patient accommodation. This matter reduces the level of disparity required between your sentence and that of your co-accused but does not remove it.
Sentencing Submissions
49Ms Marcou submitted on your behalf that whilst a period of immediate incarceration was conceded as inevitable in the circumstances, it should be either the same or perhaps even less that imposed on your co-accused.[7]
[7]Defence Exhibit 1.
50Ms Jones on behalf of the prosecution submitted that a period of imprisonment that involved a head sentence and a non-parole period was appropriate.[8] She further submitted that the length of that sentence should be longer than that imposed on the co-accused as some disparity was justified in the circumstances. She did not submit what that level of disparity should be.
[8]Prosecution Exhibit 4.
Sentence
51
Mr Tolj, on the charge of armed robbery you are convicted and sentenced to
18 months' imprisonment. You are to serve a period of 12 months before becoming eligible for parole.
52I declare that there are 49 days of pre-sentence detention already served.
53Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty, I would have imposed a sentence of two years and three months' imprisonment with a non-parole period of one year and nine months.
54Now, is that pre-sentence detention correct, by everyone else's calculation?
55MS JONES: Yes, Your Honour. That is correct.
56HIS HONOUR: Thank you, is there anything further that is required?
57MS JONES: Nothing further.
58HIS HONOUR: Thank you. Thank you both for your assistance.
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