Director of Public Prosecutions v Tonkin
[2022] VCC 1485
•12 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02519
CR-19-02520
CR-19-02521
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL TONKIN, DUSAN JAVANOV & KRISHNEIL CHAND |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2022 | |
DATE OF SENTENCE: | 12 September 2022 | |
CASE MAY BE CITED AS: | DPP v Tonkin & Ors | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1485 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence
Catchwords: Kidnap -- Extortion -- Assault -- Theft -- Plea of Not Guilty -- Category 2 Offence -- Extra Curial Punishment -- Parity -- Totality
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Chandand another [2015] VCC 142 -- Worboyes v The Queen [2021] VSCA 169 -- R v Verdins [2007] VSCA 62 -- Huynh v The Queen [2020] VSCA 222 -- Guden v The Queen (2010) 28 VR 288 -- Matamata v The Queen [2021] VSCA 253
Sentence: Tonkin -- 6 years and 1 month imprisonment with non parole period of 4 years imprisonment
Chand -- 6 years and 6 months imprisonment with non parole period of 4 years and 10 months imprisonment
Javanov -- 6 years and 8 months imprisonment with non parole period of 5 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J Fallar | Office of Public Prosecutions |
| For Daniel Tonkin | Mr R Backwell | Greg Thomas Barristers & Solicitors |
| For Krishneil Chand For Dusan Javanov | Mr A Waters Ms M Brown | Leanne Warren & Associates Dribbin & Brown Criminal Law |
HER HONOUR:
1Daniel Tonkin, Dusan Javanov and Krishneil Chand, on 13 May 2022 after a three week Trial, a jury found each of you guilty of one charge of kidnapping, one charge of extortion with threat to inflict injury, one charge of common law assault and one charge of theft.
2On 15 July 2022, Moana Ulutui pleaded guilty to one charge of extortion with threat to inflict injury, one charge of common law assault and one charge of theft. He will be sentenced at a later date.
3You were all variously involved with Mr Ulutui and a fifth man in an attempt to extort money from 24 year old Alex Kovac[1] between 10 and 11 April 2019. Mr Kovac was kidnapped and detained at two houses. He was tied to a chair, physically assaulted and threatened with weapons. You took his belongings and made him call his parents to seek payment of $30,000 to secure his release.
[1] A pseudonym.
4At the time of the offending, you, Mr Tonkin, were 26 years old. You, Mr Javanov, were 34 years old and you, Mr Chand, were 24 years old. Mr Ulutui was 21 years old.
Background
5Mr Kovac lived in New South Wales. He came to Melbourne to undertake rehabilitation for drug addiction. It was in that setting in late 2018 that he met you, Mr Tonkin. You and he became friends. You travelled to Sydney and stayed with him and his family around the Christmas/New Year period of 2018 into 2019.
6Through Mr Tonkin he met you, Mr Chand, and Mr Ulutui.
7In about March 2019 Mr Kovac moved to live with you Mr Tonkin and your mother.
8On 4 April 2019 Mr Kovac asked his mother, Louise Kovac,[2] for $5,000 to pay drug debts. His mother Louise paid $5,000 to his bank account. That money was spent partly on the debt, but also on more drugs, gambling and buying clothing for himself and you, Mr Tonkin.
[2] A pseudonym.
9You and Mr Kovac had a falling out because Mr Kovac felt you were using him for his money and on 9 April 2019 Mr Kovac moved to the Sandown Park Motel. Mr Ulutui, and a male called Leon attended at the motel. The three of them smoked methamphetamine. Mr Ulutui, and Mr Kovac went to play the pokies. You, Mr Chand, also attended at the Motel.
10Mr Kovac gave Mr Ulutui money to buy more drugs for the group, but Mr Ulutui did not return. Mr Ulutui did not respond to Mr Kovac’s attempts to contact him.
11While at the Sandown Hotel Leon asked Mr Kovac to use his laptop. At some point Mr Kovac became suspicious about what Leon was doing on his laptop. On 10 April, Louise Kovac received notification from her bank about suspicious transactions. She rang Mr Kovac and he immediately formed a view that Leon was responsible.
12Mr Kovac received a text from Mr Ulutui, to meet him at a shopping centre. Leon went with him but soon disappeared. Mr Kovac rang you both Mr Chand and Mr Tonkin. You, Mr Tonkin, arranged to pick him up. You drove to a designated spot for that purpose. You then drove and met up with Mr Chand. In convoy you both drove and met up with Leon. Mr Kovac jumped out of the car and punched him once to the face. Leon ran off.
The Offending
13Mr Kovac was then driven by you, Mr Tonkin, to a house where he saw a man he called “the Serb”. That is you, Mr Javanov. Mr Kovac was under the impression the house belonged to you Mr Javanov. Mr Tonkin and Mr Chand you were in phone contact and you, Mr Chand, arrived at the house very soon after.
14Mr Kovac described saying hello to a couple of females as he walked through the house. He followed to a rear room. He described a lounge and a chair and seeing a shed through a window. He said music was playing pretty loudly.
15Mr Kovac was pushed into a chair and you, Mr Chand, and you, Mr Javanov, tied him to the chair with ropes or cables. He described being tied around his torso to the back of the chair, and having his arms and hands tied to the arms of the chair. He said you, Mr Javanov, ripped a shirt or towel and used that to tie ‘pretty tightly’ around his mouth.
16Mr Kovac was struck to the face and head multiple times by you Mr Chand and Mr Javanov. He was struck to both eyes and the nose area over ‘a good couple of minutes.’ His face was swollen ‘pretty quickly’ and he had trouble hearing from his right ear. You, Mr Chand, were saying to Mr Kovac that he was ‘a dickhead’ and that he should have let you speak to Leon.
17Mr Kovac gave evidence that there were a number of tools on the floor in a corner of the room. They included an axe, a crowbar, lump hammer, regular hammer and a few other hand tools. At one point you Mr Chand said to Mr Javanov to get out the tools. You both produced those tools, laying them on the ground in front of Mr Kovac. You told him to pick one. He said he was in fear for his life at that point. “I don’t know why I chose the crowbar.” He said of the crowbar, “they [being Mr Javanov or Mr Chand] were using it to toy with me, so they were placing it – I thought they were going to kneecap me, like use it on my knees.” The crowbar was held against his knee in a threatening way.
18He was hit to the face again.
19You, Mr Tonkin, were going in and out of the room. At one point you Mr Javanov went to remove Mr Kovac’s chain which had a Croatian cross on it and his watch but you Mr Tonkin intervened and told him to stop.
20Mr Ulutui, and a fifth man then arrived. The room was rearranged with Mr Kovac moved to the back corner and a couch placed between him and the door. Mr Ulutui and the fifth man both started going through Mr Kovac’s bag, taking out hats, his smaller satchel bag, other clothing and his laptop. Mr Ulutui took his phone and was going through it. Mr Ulutui asked him for passwords. A snap chat video taken from Mr Ulutui’s mobile phone shows a person scrolling through Mr Kovac’s phone to see passwords. Screen shots were taken on Mr Ulutui’s phone of the list of passwords. Mr Kovac did not see those items after that day.
21You, Mr Chand, told Mr Kovac that you wanted $50,000 ‘for wasting their time’. He told you there was no way he could get that amount. He told you you would have to reduce the amount, and you did so, demanding $30,000.
Phone calls
22It is apparent that the expectation was Mr Kovac would contact his parents to try and obtain the money.
23A series of phone calls were recorded by Mr Kovac’s father, William Kovac.[3] Images from a face time call were recorded by his mother. Mr Kovac also spoke to a family friend, Ms Geraldine Somers.[4] Mr Ulutui, held the phone for Mr Kovac to speak. He also spoke to his father William Kovac during various calls.
[3] A pseudonym.
[4] A pseudonym.
24He asked his parents to pay the money to ensure his release. During the calls all three of you, Mr Ulutui and the fifth man were present. At various times the calls were muted while you debated what Mr Kovac should say or gave him instructions. A story was fabricated that Mr Kovac had broken into the home of Mr Ulutui and stolen Rolex watches worth $25,000 and a car worth $30,000 as the reason the money was being demanded.
25At various points during the calls Mr Kovac was struck to the face and head.
26During the face time call William Kovac saw that his son was tied to a chair, and saw his son being hit to the head. The screenshots captured by his mother showed facial injuries. Mr Kovac gave evidence that during the facetime call you were putting balaclavas or similar over your faces so that you could not be identified.
27Both parents and Ms Somers variously describe Mr Kovac’s demeanour during the calls as ‘not happy’, ‘panicked’, ‘very stressed’, ‘a matter of urgency’, ‘very distraught and seemed scared’, ‘very frightened’, ‘crying’, ‘extremely upset and fearful’.
28You Mr Chand produced a card which flipped out into a knife and threatened Mr Kovac between calls “by pressing it up against my leg, my arms, legs – and he said by the time I get back to have the money organised or, yeah, to have the money sorted out for them by the time he gets back.” He described you as aggressive “to the point where I thought he was going to use it, and I’ve… felt pretty… helpless and scared…”
29William Kovac telephoned you, Daniel Tonkin, at 8:04pm on 10 April to see if you knew anything about Alex’s whereabouts. Certain comments made by you made him suspicious. It was after that call that William and Louise Kovac called the police and reported the kidnap of their son. They nominated you Mr Tonkin as the last person he had contact with.
Second location
30At some time after the 8:04pm call and before a 10:20pm call to his mother, Alex Kovac was moved from the first house. He recalled one of you saying “We’ve been here for too long. We’ve got to move him.” He was untied and escorted by you Mr Tonkin to the car. He said his eyes were swollen and he couldn’t see.
31You Mr Tonkin drove him to a unit in Hampton East. Those premises are occupied by Victoria Po’oi, the sister of Moana Ulutui. He was taken to a rear children’s bedroom.
32Mr Kovac was told he could not leave until the money was paid. He was told by you Mr Tonkin to take Seroquel tablets which had the effect of sedating him. You were going back and forth to check on him. He asked you if he could make a phone call to his mother to say goodnight. You allowed him to do so. She took a screenshot.
33At about 9:30am on 11 April 2019, Mr Kovac was woken by you Mr Tonkin. You were angry as police had attended your mother’s home as a result of the report made by Louise and William Kovac. You told Mr Kovac he had to ring his parents from a telephone box outside the units. You were in a panic and aggressive, telling Mr Kovac that he should tell his parents that he had bashed himself and was calling a psychiatric unit. You stayed nearby. After the call Mr Kovac returned to the unit and went back to sleep.
34Police were able to identify the location of the telephone box. They conducted surveillance. You, Mr Tonkin, were spoken to in that vicinity on the morning of 11 April but denied knowing anything of the whereabouts of Mr Kovac.
35Mr Kovac woke later and realised he was the only person at the unit. He walked outside intending to call a taxi, but was seen by you, Mr Javanov. You told him to go back to the unit or you would ‘drag him there’. Mr Kovac said “obviously I complied – I was scared.” He returned to sit on the front step. You Mr Javanov and your partner were kicking a soccer ball with some other people. You kept looking over to make sure Mr Kovac was on the step.
36A little later, Mr Kovac saw a taxi pull up and made his escape. He said “I grabbed my bag and I was briskly walking, almost running, towards the taxi.” The driver took him to the Sandringham Hospital where his mother and police were contacted.
Injuries
37Mr Kovac sustained a perforated right ear drum, bruising around both eye sockets, tenderness and swelling to his nose, bruising to the upper and lower lips, and mild tenderness and soft tissue injury to his left shoulder. Photographs were tendered at the Trial.
38Initially Mr Kovac was arrested for possession of Seroquel which were found in his bag. During that interview he was told that his parents had reported him missing. He then gave police a false story about what had transpired over the preceding 48 hours. He said in evidence that he lied because he was in fear and just wanted to get away from Melbourne.
39Several days later police attended in Sydney to retrieve the recordings made by his father. At that time Alex Kovac gave them notes he had made in the intervening period, detailing these events. He then made a statement to police which is essentially consistent with the evidence he gave at the Trial.
Arrests and Records of Interview
40Each one of you was arrested. You all either made no comment or denied having any involvement in the offending.
Victim Impact
41I have received a number of victim impact statements from the Kovac family, all of whom have been affected by these events.
Alex Kovac
42Alex Kovac writes:
‘This incident has detrimentally affected my whole life. I feel as though I am not the same person as I was. My mental health has been severely affected, I have had a formal diagnosis of PTSD and anxiety from this.’
43Mr Kovac goes on to say:
‘Because of my current mental state I have issues trusting new people in my life in forming relationships, I also began to isolate myself from friends and family and even lost close friends due to this. It has caused tension within my household. I haven't had the motivation and mindset to re-join the workforce full time… Certain places I go to that are loud and have a lot of people generally causes me anxiety and brings up bad memories of this trauma.’
44Mr Kovac sustained physical injuries during the offending including bruising to his face, perforation to his eardrum and marks on his wrists and ankles from being restrained.
45There is no doubt this was a terrifying ordeal for Mr Kovac.
William Kovac
46Mr William Kovac writes:
‘The crime that occurred against my son … has had an impact not only on him, but my whole immediate family including my wife Louise, daughter Laura[5] and myself.’
[5] A pseudonym.
47He describes:
‘The 24 hours surrounding the kidnapping of my son. This without doubt was the most intense stressful period of my life. At times I felt lifeless and bewildered with loss of control. I had constant fears for my son’s safety… I was totally on edge, very fearful, confused, frustrated and angry. ’
48He goes onto say:
‘From my perspective the matter is still not concluded. Extra support is given by me to my son and this will be ongoing. I still have heightened stress and increased anxiety that has not subsided. I have chronically bad sleep patterns.’
49For privacy reasons the family has not shared the fact of this offending with their wider social support group. As a result they have become isolated from family and friends and Mr Kovac feels this had made their healing slower.
Louise Kovac
50Ms Louise Kovac, Alex Kovac’s mother, also made a victim impact statement which she asked not to be read aloud. For that reason I will not record its details. I have had due regard to its contents. I accept her comment that this event reflected every parents’ worst nightmare.
Sentencing principles
51This is a serious matter. Principles of general deterrence, denunciation and just punishment are paramount in sentencing you all. That is, the sentence I impose must reflect the court and the community’s disdain for this type of violence. It must deter others from resorting to violent aggression to resolve some perceived wrong. It must work to achieve community protection both from you and from others who would behave in this way.
Objective gravity
52In assessing the objective gravity of this offending I note the following aggravating features. In relation to the kidnap of Mr Kovac there was a degree of planning. It is apparent that you Mr Tonkin and Mr Chand perhaps viewed him as an easy avenue to money, given the recent payment of $5,000 to his account. He shared that money with you.
53In relation to the kidnapping your Counsel accepted that the premeditation started at some time when Mr Kovac was at the Sandown Park Hotel. There was coordination between you Mr Tonkin and you Mr Chand to meet up and follow each other to the venue where Mr Javanov was waiting. I cannot conclude at which point Mr Javanov became involved in the plan, but he was a willing and active participant almost immediately once Mr Kovac was brought to those premises.
54The kidnapping occurred by deception rather than force, but force soon followed. Mr Kovac was immediately detained with force and was assaulted. Weapons and ties were readily available.
55The ongoing detention of Mr Kovac occurred over a period of approximately 24 hours spanning two days. The indictment reflects those dates. The seriousness of the kidnap is increased by the fact it was premeditated to the extent I have described, it occurred in company, it was achieved by way of physical restraint of the victim, by the threat of force with weapons, by the use of sedating drugs, and in two different locations which were foreign to Mr Kovac both in terms of the actual houses but also given he is from interstate and could not identify where he was. It was committed for the purpose of demanding a ransom. In my view it is a reasonably serious example of kidnapping.
56In your case particularly Mr Tonkin it is further aggravated by the breach of trust. Mr Kovac thought you were his friend. Instead you committed serious offences against him. Conversely, Mr Javanov, your willing and active violence against a person you did not even know is most concerning.
57The extortion is also a serious offence. It too was premeditated, being the sole purpose of the venture. You saw Mr Kovac – or more accurately his parents – as an easy target. The amount demanded was significant. It was a demand made with the very real threat to injure Mr Kovac. He and his parents were in no doubt of your capacity to do so given what had transpired prior to the first threat, and what was transpiring in an ongoing way as the phone calls were made – namely ongoing restraint and assault of Mr Kovac and the production at two points of weapons capable of inflicting serious injury to him.
58I am mindful that the assault charge, which you all face, is separate to, though informs, the kidnap. It is a serious assault. It is a charge which reflects repeated physical force to the face and head of the victim. The force was significant enough to rupture his eardrum and leave apparent bruising and swelling to his eyes. Force to the head is serious. The assault here was inflicted by multiple people and in the context of Mr Kovac being restrained and unable in any way to defend himself.
59In relation to the theft charge, you stole items of value to a young man. It was a gratuitous offence which took advantage of his inability to do anything to stop you.
60In determining where this offending falls in the range of seriousness, I accept the period of the kidnap was shorter than in some other cases. The weapons were not used. There was no money extorted and the theft was of items not of high value. Nonetheless, looked at globally, this is serious offending which warrants condign punishment.
Category 2 Offence
61Kidnapping is a Category 2 offence under the Sentencing Act 1991. As a result a term of imprisonment must be imposed unless one of the exceptions under the Act exists. It was not suggested that any exception applied to any of you. Moreover it was accepted by each of your Counsel that the only appropriate sentence is one of imprisonment with a head sentence and non-parole period.
Personal circumstances
Daniel Tonkin
62Mr Tonkin, you are now 30 years old. Your personal background is contained in a number of reports and the personal letters from your mother, paternal Uncle and maternal Aunt.
63You and your two older sisters were raised by both parents in bayside Melbourne. Your family was a loving and supportive one; however, your parents separated when you were 13 years old for reasons still unclear to you. They remained amicable. Nonetheless their separation had a great effect on you and you believe it may have resulted in you acting out as a teenager.
64Your relationship with your father was difficult and you lost contact with him from about the age of 17. You have a strong relationship with your mother and view her as your main support. You live at home with her, and she says she has never feared for her safety or seen you behave violently.
65You say your primary school grades were good, though your mother describes you struggling academically. You were excellent at sports and were popular with your peers. You attended a private boys’ college for secondary school. At age 13 you had a negative experience with a teacher at a school snow camp. You were a talented and dedicated basketball player, but after the snow trip, your interest waned.
66You completed year 10 and undertook eight months of year 11 before leaving school. Your peer group began to change and your friends from a basketball team became a negative influence. You withdrew from school and started using alcohol.
67At 18 you moved into your parents’ rental property for 6 months before returning home.
Substance Use
68You began drinking alcohol from your mid teens and soon after commenced drug use. By about age 19-20 you were using Methamphetamine, Cocaine and GHB. You later abused prescription medication Valium and Xanax from age 24. You also regularly drank spirits to excess. You used Seroquel to reduce anxiety to help you sleep. You began using drugs daily in your early 20s.
Relationships
69In 2015, at age 23, you moved out with your partner. You described the relationship as unstable and toxic involving substance use and domestic violence. You commenced another relationship in 2016 with a woman who had a 6 year old. However, you realised yours and your partner’s drug use was harming her child and decided to walk away. You reconnected with your previous partner and moved to Queensland for a time but the relationship did not last.
70You have been with your current partner for eight months.
Employment History
71You have had a variety of occupations and are described as having a good work ethic. You were a carpenter from the age of 18 to 20. You then worked in civil construction until you were 23. Following this, you worked as an apprentice plumber for over three years until you were made redundant at the end of 2018.
72Your mother states that you have had difficulty in persevering with a particular line of employment, but that you have always been able to find new employment quickly and relatively recently.
73Drug use has dogged you though you describe yourself as a functioning addict, able to hold down employment while regularly using illicit drugs.
Prior Criminal History
74Your prior criminal history dates back to 2012. You have a number of convictions for possessing drugs of dependence including methylamphetamine, GHB, ecstasy, amphetamine and a prescription drug. Your other offending relates to driving, dishonesty and failing to answer bail. You have received fines and one Community Correction Order which you report was a positive, providing structure in your life. The offending before me represents a serious escalation in your offending behaviour.
Drug Rehabilitation
75To your credit you have made various attempts to rehabilitate yourself. As the evidence in the Trial bore out, you were an inpatient at Malvern Private Hospital in 2018 and early 2019. Unfortunately you continued to use substances daily and were asked to leave.
76At the time of offending in 2019 and in the wake of a recent loss of employment, you report using methamphetamines regularly and that you were drug affected at the time of your offending. No doubt that would have had an impact on your ability to exercise good judgement and rational choices. However, the impact of self-induced drug use is not mitigating.
77You were remanded from the date of your arrest on 10 May 2019 until being granted bail on 19 July 2019. You were bailed to the CISP program. I have read the Final Progress Report from December 2019. It is a very positive report.
78The author describes you as having demonstrated ‘tremendous insight’ into your use of illicit substances and circumstances around relapse.
79You were assessed as suitable for a 28 day residential treatment program at Dayhab Clinic Glen Waverley which was subsequently extended to a 56 day program. You were an inpatient between September and November 2019.
80After your discharge from Dayhab you undertook outpatient counselling at Anglicare Victoria and then attended weekly peer support aftercare groups at Dayhab and Narcotics Anonymous.
81You were experiencing anxiety and panicked moods and sought treatment from your General Practitioner and expressed a desire to engage with a forensic psychologist in Frankston. You were also referred to an anger management program.
82During that period you were able to maintain casual employment as a landscaper. You identified employment as a positive factor.
83I have received two reports from the Dayhab providers, both of which attest to your significant strides towards recovery. The author Mr Sanderson, Senior Clinical Counsellor, says you displayed a high degree of integrity, responsibility, ambition and dependability. The reports talk of your insight into addiction and behaviour, along with expressions of remorse and responsibility for your past offending behaviour. Your commitment to abstinence was demonstrated via 25 clean drug screens.
84Your commitment to your future was also demonstrated by your pursuit of further qualifications. In 2020, you studied at Box Hill TAFE to become a barber. You worked in this capacity for approximately 18 months until the COVID-19 pandemic caused lengthy closures. You then obtained work in the construction industry working on new roads since July 2021 and you hope to return to that job on your release.
85Unfortunately those positive gains did not withstand the strength of your addiction and you resorted to drug use in the period leading up to the initial trial date.
86You again voluntarily entered an Intense Addiction Treatment Program as a full time inpatient in March 2021. You report being abstinent for 9 months during 2021. It seems your anxiety increased as your Trial approached and your drug use again became regular and problematic.
87Your mother confirms that prior to the Trial in 2022 you had approached a new rehabilitation centre hoping for long-term results. You are planning to spend time in rehabilitation upon your release as you know that overcoming addiction is the key to living a happy, successful life.
Mental health
88At times you have been actively psychotic due to drug use and have expressed suicidal ideation. You are currently experiencing anxiety and depression reactive to your current circumstances. You have been in a lockdown in prison.
89Following her assessment of you, Ms Cidoni indicated that you had a low average intellectual capacity and diagnoses of Adjustment Disorder, Major Depressive Disorder, Generalised Anxiety Disorder and Substance Use Disorder (in enforced remission).
90These conditions result in you experiencing persistent negative emotional states, worry and disturbed reasoning that impacts your daily functioning. You experience low moods, feelings of worthlessness, helplessness, low energy, concentration problems, inability to relax and restlessness along with impacted sleep and appetite.
91At the time of assessment your symptom presentation was high and there were strong indications your mental health had declined considerably since being re-remanded.
92Ms Cidoni opined that your risk of reoffending violently is medium. Your major risk factor for re-offending is substance abuse. Your risk is mitigated by participation in treatment, the absence of an attitude supportive of violence, family support, employability, and your remorse.
93Ms Cidoni opined that your mental illness is exacerbated by the prospect of further imprisonment. Your symptoms produce challenges that would weigh more heavily upon you than a person without your conditions. It is expected your maladjustment would worsen, and there are concerns you may harm yourself. I accept these factors enliven limbs 5 and 6 as outlined in R v Verdins.[6]
[6] R v Verdins [2007] VSCA 62
Prospects of Rehabilitation
94Your prospects of rehabilitation hinge on your ability to withstand drug use. It seems to me that you are a person with the potential to overcome your addiction. It is often something that takes several attempts, however the reports describe you as having insight and an understanding of your addiction. You have a good attitude to employment and understand it is a protective factor for you. You have ongoing family support. Your mother states that you have been in daily contact with her or your girlfriend whilst in custody. You and your father are keen to build your relationship. The references I have read from your mother, aunt and uncle make clear you have a large extended family who want you back in their lives and are ready to support you.
Remorse
95I have read your letter addressed to me and tendered at your plea. Letters of remorse given at that time are often self-serving and carry little weight. However, in light of the other material I have read about your efforts to better yourself, it seems to me a genuine expression of your remorse and an acknowledgment of what you have done. I accept that is the case despite your plea of not guilty to this offending.
96Your mother notes that you have undertaken volunteer work and have counselled other addicts at Narcotics Anonymous meetings. You have also removed peers of a negative influence from your life.
97I accept that you have taken the past three years to reflect on your offending and that you were in fact working hard to change your life for the better. You have not reoffended other than drug use. I accept that you have expressed genuine remorse to the Kovac family, including a desire to make a donation to a charity of their choice if they would be prepared to accept that offer.
98In my view your prospects of rehabilitation are positive.
Krishneil Chand
99Mr Chand, you are now 27 years old. Your history is contained in a report from psychologist Mr Jeffrey Cummins and a Department of Human Services pre-sentence report from 2013.
100You were born in Australia to your Fijian born parents. Your parents work at a factory together and are productive members of society. They remain supportive of you. You have a younger brother.
101You attended Mentone Primary School and Parkdale Secondary College. You were bullied at school because of your skin colour. You had problems reading and writing and teachers told you that you may have ADHD as you had concentration difficulties and were often restless. You had what you described as a ‘very short temper’.
102When you were 14 or 15, you witnessed a car accident where a man was thrown from and then crushed by his vehicle and died. You checked him to confirm that he was dead. A woman was also badly injured. You say this was traumatic for you and that you continue to have nightmares and flashbacks about it.
103You had a difficult relationship with your parents growing up, reporting that their physical discipline was harsh. You left home at 13 or 14 due to the difficulty in those relationships. You were in trouble for graffiti at that time. You stayed away from home for several months. You began consuming alcohol and getting into fights. You returned home but soon after you entered youth detention.
Prior Criminal History
104Your prior criminal record is concerning. Equally so is the fact you have spent a considerable amount of your life in custody since your teens. You have a criminal record from the Children’s Court where it seems the full gamut of orders were imposed on you in an attempt to effect your rehabilitation[7].
[7] Sentencing Remarks of Grant J in DPP v Chand and another [2015] VCC 142
105You spent a total of nearly 3 years in youth detention until being moved to Port Phillip Prison after you committed a serious assault on two prison officers. You did so in company with others.
106According to a later enquiry by the Ombudsman, your human rights were infringed when you were moved to adult prison and spent six or seven months in solitary confinement. I have read the relevant parts of that report which was tendered on the plea.
Drug Addiction
107You say it was in the setting of the adult prison environment that you were introduced to the drug ice. You commenced using ice upon your release. Despite that fact you apparently successfully completed parole in November 2017. You have continued to use ice, and at the point of your current remand were using daily.
108You reported being treated ‘badly’ in youth detention and adult prison. You say officers beat you, you were gassed and spent time in shackles. You were stripped and physically assaulted by officers while in youth detention. You say you were too young to have been moved from youth detention to adult prison and that you were ‘traumatised by all of that’.
109Your most recent court appearance prior to the offending before me was in December 2018. For possessing a prohibited weapon, possession of steroids, methylamphetamine, nandrolone and ecstasy, and committing an offence on bail you were convicted and placed on a CCO for a period of 12 months. That order was breached within 3 months by the offending before me. That is an aggravating feature of this matter.
110You also have further charges outstanding. They involve kidnapping and assault in circumstances similar to those before me. At this stage they are unproven allegations, however your counsel agreed that your past criminal history and alleged involvement in further offending is most concerning. It does not bode well for your rehabilitation.
111A deal of your offending has occurred subsequent to completing the Violence Intensive Program and an anger management program while on a community corrections order or parole.
112Similarly, the 2019 email from the Advanced Case Manager, Department of Justice and Community Safety in relation to your performance on the 2018 CCO demonstrates your almost complete lack of engagement with that order.
113What is concerning is your ongoing minimisation of your offending. The 2019 CCO email notes you minimise and justify your offending behaviours, boast about your time in jail and criminal history.
114Mr Cummins notes you deny any involvement in the offending for which I am to sentence you. You have expressed no remorse. He opined that you are a Moderate-High risk of further violent offending. In light of your past behaviours and offending history he also confirms the diagnosis of an Antisocial Personality Disorder.
Mental Health
115He also states that you report flashbacks and nightmares regarding your treatment in youth detention and adult prison and also the car accident. Mr Cummins concluded that you have a Major Depressive Disorder and Complex Post Traumatic Stress Disorder where you are suffering from two or more traumatic events each triggering the symptoms of PTSD.
116You have almost no employment history, telling Mr Cummins that you have made your money selling drugs. You started gambling at age 18 and by 20 or 21 years were a regular at Crown Casino, apparently being offered a host who sponsors you at that venue. Unsurprisingly you say you have lost a lot of money through gambling.
Prospects of Rehabilitation
117In my view your prospects of rehabilitation are guarded. I do take into account that you are still in your 20s, albeit late 20s, and the fact Mr Cummins reported that you have an emerging level of insight into your offending, have accepted that you have mental health issues and are keen to receive treatment. You have also indicated a preparedness to undertake further anger management programs.
118I also take into account that you have a partner and together you have a three year old son. I have read the letter from your partner. She describes you as a loving father. You and she have obviously discussed your offending behaviour and potential rules around continuing a relationship with her and your son. She says you come from a wonderful, loving family who have struggled to accept the mistakes you have made. Your partner remains supportive of you, as do your parents.
Submissions regarding Non-Parole Period
119It was submitted that your age and past traumas are such that I should consider a longer than normal non-parole period to allow for your rehabilitation. While I accept that limb 5 of Verdins is enlivened given your mental health diagnoses, that is a difficult submission given what I have outlined by way of your lack of engagement with dispositions aimed at your rehabilitation. It is a difficult submission given you served a lengthy period of incarceration, and were released to parole in November 2017. Despite completing that parole and receiving the CCO in December 2018, you committed the offences before me in April 2019. Those matters point toward the need for specific deterrence and community protection. Even taking into account the factors of mitigation I do not accept that a shorter than normal non parole period is warranted.
Remand
120You were originally remanded on this matter on 23 May 2019 before being granted bail on 12 December 2019. You served a 3 month sentence for the breach of CCO from 13 September 2019. I take that into account in terms of totality, though I do not accept that that sentence would have been wholly concurrent if dealt with together with this matter.
121You were later arrested and remanded on the alleged further offending on 8 August 2021 and have remained in custody since that time until I remanded you for this offending post verdict.
Dusan Javanov
122Mr Javanov, you are now 37 years old.
123You were born in the former Yugoslavia, now Serbia. You are the youngest of four siblings. You say your life was positive until the war began in Yugoslavia when you were about 6 years old. You witnessed atrocities including seeing people executed, dead bodies and people with limbs missing. Your family lived very close to the border. According to the report of Psychologist Mr Warren Simmons, you have symptoms consistent with PTSD, having being diagnosed previously.
124Your mother and you younger children initially fled to Austria. Once papers were obtained your father and older sibling joined and your family fled to Hungary and eventually migrated to Australia in 1999 when you were around the age of 14.
125On arriving in Queensland life was difficult as you did not speak the language. Your mother worked as a housekeeper and your father in construction. You had talent in basketball and so the family moved to Melbourne for sporting opportunities.
126Your parents are now deceased. Your father died in 2012 from cancer. Your mother passed away at the beginning of April 2022 in Serbia where she had been living since 2015. Your parents were hard workers and you were close to them. You remain close to your brothers. None of your siblings has been in trouble with the law.
127You did not undertake any schooling in Yugoslavia due to the war. Apart from some home schooling your first formal enrolment was at the age of 14 in Year 10 at Cairns High School. You were required to repeat the year as your English was not proficient.
128After you moved to Melbourne, you completed Year 11 at Reservoir High School and later met the attendance requirements for Year 12 at Brunswick Secondary College.
Employment History
129You have a work history. You worked for a company building brick fences when you left school. You then left to take up a position as a scaffolder. You were employed by two different companies as a scaffolder for four years. You stopped work when your father was diagnosed with cancer to become his carer for the next 6 years. You and your partner lived with your parents at this time.
130You then cared for your mother until 2015 when she returned to Serbia. You returned to building brick fences until you were incarcerated for seven months in 2019. When you were released you worked for your brother’s concrete polishing business until the COVID-19 pandemic commenced.
Relationship
131You have been in a relationship since 2010. Your partner remains supportive of you. You continue to speak to her regularly and prior to your remand for these offences you were living with her parents.
Prior Criminal History
132Your employment has been interrupted by periods of imprisonment.
133You have previous convictions for theft, theft from shop, theft of motor vehicle, obtain property by deception, dealing with proceeds of crime, robbery, burglary, unlawful assault, criminal damage and intentionally causing injury. Those matters span the period from 2003 to the time of the offending in April 2019.
134You were subject to an Intensive Correction Order in 2009 after which there was a gap of some 4 years to your next conviction. In 2012 you received 6 months imprisonment for an offence of intentionally causing injury and for robbery among other offences. You received imprisonment for unlawful assault in 2016. In May 2018 on a raft of dishonesty matters you were released to a CCO. A second CCO was imposed for dishonesty in November 2018. The offending before me breaches both of those orders, the latter within 4 months of it being imposed. That is aggravating. In September 2019 you were given a term of imprisonment for one of those breaches and the other was confirmed, however it appears you continued to offend.
135In addition to prior matters, you have been dealt with on several occasions since this offending, most notably in June of this year you received a term of 90 days imprisonment for a charge of recklessly cause injury, the commission date of which was May 2020. You have also been dealt with for intentionally damaging property and contravening a family violence intervention order as well as 11 charges of committing indictable offences whilst on bail. I take those matters into account when considering totality. Your convictions for violent offending are concerning.
Drug and Alcohol Use
136Your prior criminal offending has a link to drug use which began in the context of the nightclub scene when you were in your mid-20s. Use of illicit substances did not endure, however you report consuming excessive amounts of alcohol from about the same time. Your alcohol consumption during the COVID pandemic when you were not working escalated to drinking a bottle of spirits every day. In my view your prospects of rehabilitation given your age, history and involvement in this serious offending and ongoing offending are guarded.
137Your excessive alcohol consumption endured until you suffered a stroke.
Stroke
138That event occurred in March 2021. The precipitating event is not clear. You were taken to the Alfred Hospital where you underwent neurosurgery to remove a blood clot from the right side of your brain. You were hospitalised for about 3 weeks.
139As a consequence of that event you have lost your sense of smell and have some issues with speech, writing and short-term memory. Most significantly you now experience seizures once or twice a month.
140Mr Simmons raised a question regarding an acquired brain injury and your plea was adjourned in order to obtain a neuropsychological assessment. That assessment was ultimately not relied on, and therefore there is no evidence to confirm an ABI. Nonetheless, I take into account the impact of your stroke and your propensity for ongoing seizures in particular which may make your time in custody more difficult. You currently take anticonvulsant medication.
141In relation to your PTSD, you have been under the care of a general practitioner and according to Mr Simmons you take antidepressant medication. Mr Simmons reports that your condition is effectively managed by that medication.
Current circumstances
142You were initially remanded on this offending on 23 May 2019. You were bailed after a committal hearing on 12 December 2019. You failed to attend a directions hearing and a warrant was issued on 17 June 2021. You were arrested and again remanded on 12 August 2021 and have remained in custody since that time.
R v Verdins - Limb 5
143I take into account your diagnosis of PTSD and the fact that will make your time in custody more onerous. That enlivens limb 5 of Verdins.[8] I do not accept that there is evidence which enlivens other limbs in your case.
[8] R v Verdins [2007] VSCA 62
Prospect of Deportation
144I also take into account the precarious situation you are in regarding your immigration status. Although you are a permanent resident you have never held Australian citizenship. As a result of the sentence I impose you are likely to be deported.
145Higher Courts have said that is a proper matter for me to consider.[9] In your case you will be returned to a country you do not know and have never visited. You are unaware whether you have extended family living there. To your mind you are and intended to continue to be a resident in Australia.
[9] Guden v The Queen (2010) 28 VR 288; Matamata v The Queen [2021] VSCA 253
146That is a matter which will weigh very heavily on you during your time in custody. It is likely to have a significant impact on your long term relationship as well as your connection to your brothers. I accept the likelihood of deportation will weigh heavily on you and I take it into account.
Remand during COVID-19 Pandemic
147I take into account in relation to the period of remand for Mr Javanov from August 2021, and the period of remand for each of you after the verdict occurred during the COVID-19 pandemic.[10] That represents possibly the most difficult time for prisoners in Victoria in the modern era. The prison setting became a more onerous one with increased lockdowns, limitations on in person visits and disruptions to education and rehabilitation programs. On re-entry to custody post the verdict you have each undergone further periods of quarantine.
[10] Earlier remand during 2019 pre-dated the COVID-19 pandemic
148As with the broader community, prisons are places of heightened anxiety in the COVID-19 setting. Prisoners however are unable to make autonomous choices about social contact and distancing. Higher Courts have stated that the difficulties of time in custody during the COVID-19 pandemic must be reflected in palpable discounts in sentencing.[11] I take that into account to the extent it is relevant in this case.
[11] Worboyes v The Queen [2021] VSCA 169
Delay
149I also take into account the delay in this matter. That includes the period from the original Directions Hearing in this Court in December 2019 and throughout 2020. Your trial was eventually listed in March 2021, however could not proceed due to the pandemic. Ultimately it was relisted and proceeded in February 2022. I accept during that period of almost two years you had these serious offences hanging over you.
Current Sentencing Practices
150I have given consideration to current sentencing practices in relation to the range of offences before me and in consideration of similar global factual scenarios. I was assisted by Counsel, in particular Mr Waters who provided me with a range of examples including Huynh v The Queen[12]. I have also looked at the Judicial college website summaries. As with all cases there are similarities and differences in both the offending and personal circumstances. Ultimately I am required to impose a just sentence and that is what I have endeavoured to do.
[12] Huynh v The Queen [2020] VSCA 222
151I am mindful of the overlap between charges 1 and 2 being the kidnap and ongoing detention for purpose of demanding a ransom, and the extortion constituting the actual demands. I am mindful of the way in which the assault informs the seriousness of the kidnap but is also a separate offence. For that reason there will be a greater degree of concurrency between those charges than I may have otherwise ordered.
Parity
152I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
153The key words are, 'unjustifiable difference'. That is because parity takes into account, consideration of the offending and your roles in that offending but must also take into account your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
154The Prosecution case was put as joint criminal enterprise. Putting aside personal circumstances you are all complicit in the offending and taken in totality it was not disputed that your roles seem to even out. Where Mr Tonkin breached the trust of a friend, was involved in any planning and was present for the duration of the offending, moved Mr Kovac from one house to another, and insisted he take the Seroquel, he was not so actively involved in the physical violence or theft. Mr Chand had some breach of trust and involvement in planning, was actively violent including perpetrating the assaults and threatening use of weapons, but was present for a shorter time only at the first house. Mr Javanov is similar to Mr Chand but also kept guard of Mr Kovac at the second premises.
155Given your personal circumstances, the sentences I impose on you will be different. You Mr Tonkin are now aged 30. Your prior criminal history is less serious with no prior history of violence. This is markedly out of kilter with it. I take into account your multiple and genuine efforts towards rehabilitation, the fact you have not reoffended in the ensuing three and a half years, the fact of your good employment history and prospects and tangible family support, and your expression of remorse. In your case it is appropriate to impose a slightly lower head sentence and to lower the non-parole period to encourage your positive prospects of rehabilitation.
156In your case Mr Chand, despite your younger age of 27 which makes you a youthful offender, your serious prior criminal history and lack of engagement with rehabilitative orders, including the breach of CCO, along with your guarded prospects of rehabilitation, and your ongoing lack of any remorse, mean that despite the matters in mitigation – in particular your history of some trauma and mental health diagnoses – yours will be a higher sentence.
157And finally Mr Javanov, you are a much older offender, currently 37. Your serious prior criminal history and ongoing offending despite a range of therapeutic orders, your guarded prospects of rehabilitation, and your ongoing lack of any remorse, mean that despite the matters in mitigation – in particular your mental and physical health and the prospect of deportation – mean your sentence will also be higher.
Prosecution submissions on sentence
158Ms Fallar on behalf of the Prosecution submitted that the only available sentence is one of imprisonment with a minimum non-parole period. Your Counsel agreed.
Maximum penalty
159I have taken into account the maximum penalties for kidnapping 25 years imprisonment, extortion 15 years imprisonment, common assault 5 years imprisonment and theft 10 years imprisonment.
Total Effective Sentence
Daniel Tonkin
160On charge 1 of kidnapping you are convicted and sentenced to 4 years and 3 months imprisonment.
161On charge 2 of extortion you are convicted and sentenced to 3 years and 3 months imprisonment.
162On charge 3 of common assault you are convicted and sentenced to 2 years imprisonment.
163On charge 4 of theft you are convicted and sentenced to 12 months imprisonment.
164I direct that Charge 1 is the base sentence. I direct that 12 months of the sentence on Charge 2, 6 months of the sentence on Charge 3 and 4 months of the sentence on Charge 4 be served cumulatively on the base sentence and on each other. The total effective sentence is therefore 6 years and 1 month imprisonment.
165I direct that you serve 4 years imprisonment before becoming eligible for parole.
166I declare that you have served 244 days on remand for this offending and that that period should be reckoned as having been served under this sentence.
Krishneil Chand
167On charge 1 of kidnapping you are convicted and sentenced to 4 years imprisonment.
168On charge 2 of extortion you are convicted and sentenced to 3 years and 3 months imprisonment.
169On charge 3 of common assault you are convicted and sentenced to 2 years and 8 months imprisonment.
170On charge 4 of theft you are convicted and sentenced to 12 months imprisonment.
171I direct that Charge 1 is the base sentence. I direct that 12 months of the sentence on Charge 2, 12 months of the sentence on Charge 3 and 6 months of the sentence on Charge 4 be served cumulatively on the base sentence and on each other. The total effective sentence is therefore 6 years and 6 months.
172I direct that you serve 4 years and 10 months imprisonment before becoming eligible for parole.
173I declare that you have served 293 days on remand for this offending and that that period should be reckoned as having been served under this sentence.
Dusan Javanov
174On charge 1 of kidnapping you are convicted and sentenced to 4 years and 2 months imprisonment.
175On charge 2 of extortion you are convicted and sentenced to 3 years and 3 months imprisonment.
176On charge 3 of common assault you are convicted and sentenced to 2 years and 8 months imprisonment.
177On charge 4 of theft you are convicted and sentenced to 12 months imprisonment.
178I direct that Charge 1 is the base sentence. I direct that 12 months of the sentence on Charge 2, 12 months of the sentence on Charge 3 and 6 months of the sentence on Charge 4 be served cumulatively on the base sentence and on each other. The total effective sentence is therefore 6 years and 8 months.
179I direct that you serve 5 years imprisonment before becoming eligible for parole.
180I declare that you have served 493 days on remand for this offending and that that period should be reckoned as having been served under this sentence.
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