Director of Public Prosecutions v Tragjasi

[2018] VCC 1936

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01782

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL TRAGJASI

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2018
DATE OF SENTENCE:	21 November 2018
CASE MAY BE CITED AS:	DPP v TRAGJASI
MEDIUM NEUTRAL CITATION:	[2018] VCC 1936

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo
For the Accused	Mr C. Hooper

Pages 1 - 10

 

 

HIS HONOUR:

Circumstances of the offences

1Daniel Tragjasi, you have pleaded guilty to 11 counts of theft, one count of aggravated burglary, and one summary count of unlawful assault.  The circumstances of the offences were set out in the Crown opening, which was read in open court earlier today and which I incorporate by reference.  I also incorporate the maximum penalties that are referred to in the Crown opening.

2Essentially, you are or were a heroin addict, and you were stealing from retail liquor stores in order to sell the high end wine and spirits, to buy heroin.  The offending involving the 11 different occasions spanning the period from 2 March 2017 until 7 June 2018, a period of some 15 months.  There was a gap in or about mid-2017 until early 2018, when for a significant amount of that period, you were in fact in custody.

3So the total value of the goods stolen of all the different amounts of liquor, comes to $2521.95, with your modus operandi being to conceal the goods in your pants, and then walk out of the store.

4The most serious offence occurred on 31 May 2018, obviously when you were in the Aldi store.  You entered the wharehouse/loading dock section or the storage section of the store, after pressing a button that allowed you to get access to it, and at that stage, when you were challenged by the manager who had seen you on the CCTV footage, when he asked what you were doing, you said ‘get out of my way’. He put his hands up to stop you leaving and said what have you got. You said nothing. He reached towards you and when he accused you of stealing, you said you did not have anything, and then, "Get out of my way, I've got a fucking blade".

5At that point, you reached into your jacket pocket and produced what he said was a knife, approximately four and a half inches in length.  You then said,
"Just move or I'll fucking" and gestured using the knife, by moving your hand towards him, the store manager, who has not filed a victim impact statement.  So that is the charge of aggravated burglary and the summary charge of unlawful assault. 

Seriousness of the offences

6Judged by the maximum penalty, the aggravated burglary is the most serious offending here.  The form of aggravation alleged is that you were armed when you entered the management area of the store in order to steal.

7While your intent upon committing the act of trespass was to steal, and you are to be sentenced on that basis, the fact was you were carrying a knife.  Your counsel submitted that the offending should be characterised as at the lower range of seriousness for the offence of aggravated burglary.  I accept that as appropriate characterisation.

8At the same time, however, your whole intention in being within that store was to steal and you then took the opportunity to enter a restricted area, in order to achieve that end.  These were commercial premises, and employees working within that area should not be confronted with persons unlawfully in storage or management areas.

9I accept that there was no premeditation as such in the committing of the offence, in that you could not have known that you would be able to access that part of the store, as distinct from attempting to steal from the public areas. 

10Your culpability for this offence, however, is significant given your numerous prior convictions for shop stealing.  Further adding to your culpability is the fact that you also have prior convictions for burglary and you were, in relation to the charges commencing from Charge 4 onwards, namely from 14 December 2017, on a community corrections order at the time.  Thus while this offending is not in the same range of seriousness as an aggravated burglary such, as a confrontational aggravated burglary, it is still a serious example.

11The summary charge of unlawful assault is at the lower range of seriousness, and no victim impact statement has been provided.  It must have, however, been frightening for the shop manager, to be confronted with you holding some form of a knife, when he challenged you.  Your counsel asserted that it was in fact a pair of scissors that you used for cutting off the price tags of the liquor to be stolen.

12I am unable to accept this submission, given that you used the term "Blade" in your discussion with the store manager.  There is an element of pre-meditation, in that you were carrying a knife during this theft expedition. 

13Turning to the theft offences, the total value as I have said is $2521.95.  This is a significant amount of stock lost by the various liquor outlets.  Further, as I have indicated, you have numerous prior convictions for shop stealing.  The offending occurred, as I have said, over a period of 15 months and was regular, only ceasing for one period when you were in fact in custody.

Prior convictions

14Turning to your prior convictions, they are extensive and I will not repeat them all, but they are contained in the criminal record that was tendered.  The two major features of the prior convictions are your repeated numerous offences for theft and dishonesty type offences, and your failure to respond to lenient or
non-custodial dispositions.

15Thus, as the learned Crown prosecutor put, you have been subject of two suspended sentences that you have breached, two community-based orders upon which you have breached, and two community corrections orders, which you have breached.

16Significantly for this sentencing, is that on 30 October 2017, you were placed on a community corrections order, to commence at the end of a sentence of imprisonment for 13 charges of shop stealing, four of theft, four of burglary, two of carrying a dangerous article in a public place, one of unlawful assault, one of robbery, two of threatening to inflict serious injury, and three months later, you were sentenced for theft, shop stealing with $100 fine on 19 December 2017.

17But on the same day, 30 October 2017, on a suspended sentence for nine charges of stealing from a shop, one of possessing heroin, another one of shop theft less than $600, and two of committing an indicatable offence on bail, and one of dealing with proceeds of crime, a suspended sentence of 48 days' was reinstated, and you were sentenced to an aggregate sentence of 45 days' for the committing of the indicatable offence on bail.

18Now, that is just the matters that were dealt with in October 2017.  There were early matters, back right until you are aged 19 of numerous counts of shop theft, dishonesty type offences, and indeed, much earlier in 2006, where you were dealt with for armed robbery.  In 2006, in this Court, you were dealt with on three counts of armed robbery, placed on a suspended sentence, which you then breached.  The sentence was restored.

19So your prior convictions are extensive and indicate that considerations of specific deterrence are very relevant.  Protection of the community is arguably also relevant, in that you continue to commit acts of theft, notwithstanding that you have been dealt with for that offence on numerous previous occasions.

20Specific deterrence is also relevant, given that the bulk of this offending occurred while you were on a community corrections order for similar offending.

Personal circumstances

21Your personal circumstances were set out in the report of Mr Warren Simmons, psychologist, which I incorporate by reference.  You are aged 33.  Your mother is present in court to support you.  She works in human relations at a university.  Your father is of Albanian extraction and your parents remain married, and you have an older brother, a year older than you.

22You advised Mr Simmons that you had a good upbringing, but there was some difficulties in your relationship with your father, who had a drinking and a gambling problem.  You completed Year 9 at Sunshine High School.  You got into fights at that school, and that resulted in you being expelled.  You then worked as a labourer, and subsequently you were involved in numerous small jobs.

23You also worked for a period when you were aged 21 to 25, as a skilled labourer in plastering.  Since 2010, you have been in and out of custody and have been on Newstart, and had other minor jobs.  You have had at least two serious relationships, however, they broke down as a result of your drug use.

Explanation for the offending

24You smoked cannabis when you were at school, according to the report of
Mr Simmons, a couple of times, and subsequently when you left school, you continued using that drug.  But you ceased that at age 21.  At age 16, you commenced using heroin, and at that time you were with older peers and they introduced you to it.  Your use of that drug continued until you were incarcerated.

25In recent times before you were incarcerated, you were using that drug every two weeks.  You have also been on methadone for about the last 15 years, and you advised Mr Simmons, that you ceased using that when you then
re-commenced using heroin.  You also used ecstasy in your early 20's.

26You have undertaken a number of prison-based alcohol and drug programs, and have also completed two residential drug withdrawal programs in Footscray, and have been abstinent for several months after those programs, before you relapsed. 

27Your explanation for the offending was as I have indicated, is that you were stealing the alcohol, in order to sell it to obtain heroin.  Mr Simmons opines in his report, that he could find no evidence of anxiety, depression, or psychotic disorder.  He notes that you have described to him a pattern or a cycle of being on a heroin substitute and then lapsing, and drifting in and out of treatment.  He opines that this is a typical cycle.  He notes that your patterns have included being drug-free, and you wanted to this to be part of your life, and to be normal.

28He is of the opinion that you require intensive drug and alcohol intervention in either a prison setting, or a community residential program.  This may also assist to identify whether there are any mood disorders to explain your substance abuse.  He ends his report as follows:

"Mr Tragjasi is a 33 year old man who reported a generally positive childhood, with no history of abuse or neglect.  He indicated his father had problems with gambling, while he was growing up, but his mother made sure that their needs were always catered for".

29Then, he goes on:

"While dispositions are a matter for the court, it is respectfully suggested that Mr Tragjasi would benefit from intensive drug and alcohol intervention, in custody at a program such as Margoneet Correctional Centre, or a in a community residential rehabilitation program, which would be the optimal choice.  This should be combined with intensive counselling and further exploration of whether there is any pattern of mood disorder that may appear, correlated to his substance use.  While Mr Tragjasi's age may give one hope that he is drawing to the end of his offending career, this is unlikely to cease, unless he is able to remain drug-free.  Mr Tragjasi's prospects for rehabilitation in that regard, are therefore somewhat guarded".

30This opinion would seem to indicate that you may be somewhat at a fork in the road as you get older.  This will be your most significant sentence of imprisonment.  You have been in the workforce previously; the sentence may allow for a final break with your drug-using peers, who lead you into relapse in relation to your drug offending.  The maturity that comes with age may assist you to finally get off drugs.

Plea submissions

31In his plea submissions, your counsel emphasised your desire to address your drug abuse problems, which are at the heart of your offending.  While accepting that you had failed in a number of community based dispositions, he submitted that you ought again, be the subject of a combination sentence, involving a community corrections order with intensive supervision.

32I regard the seriousness of the offending here, including the circumstances that you were offending whilst on a community corrections order, and your extensive prior convictions, as making this matter too serious to be dealt with by way of a combination sentence, as urged by your counsel.  Your counsel did note that at one stage, you had successfully completed a period of parole.  So, I am unable to accept his submission of a combination sentence.

33Also relevant to sentence are your prospects of rehabilitation, which your counsel accepted were to be regarded as guarded.  You do have the support of your mother, who was in Court to support you.  However, as
Mr Simmons noted, you have had the support of her and your family in the past, but notwithstanding this, you have relapsed.

34I accept the submission of your counsel that this offending could not be seen as an escalation of your past offending, however, the simple reality is that you continue to reoffend, notwithstanding prior dispositions.  You had been somewhat compliant with the community corrections office on the community corrections order that you were subject to most of the time of the offending.  However, notwithstanding this, you relapsed into further offending.

35In sentencing you, I have taken into account the submissions made on your behalf.  I give you credit for an early plea of guilty.  This is some evidence of remorse.  You have facilitated the course of justice, and have insight into your offending, and have taken responsibility for it.

Purposes of sentencing

36The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any.

37I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.  As I have noted, considerations of specific deterrence and protection of the community, are such that as I have indicated, a sentence of imprisonment with a non-parole period is the appropriate disposition here.

38While I accept that the offence of aggravated burglary here is at the lower range of seriousness, Parliament has set out a maximum penalty of 25 years' imprisonment.  Further, your prior history of multiple offences of dishonesty and burglary, as well as some offences of interpersonal violence, and carrying a dangerous article, are all such that considerations of specific deterrence are salient, notwithstanding the relatively low aggregate amount of property involved, and the circumstances of the aggravated burglary.

39General deterrence is also a consideration, given that in effect you were targeting the soft targets of retail licensed premises, and indeed the office area of the Aldi store.  Denunciation is also important; your conduct is to be condemned.  You cannot continue to operate on the basis that you are free to enter retail stores, and help yourself to their property, in order to fund your drug habit.

40Rehabilitation is also a consideration.  It is in the long-term interest of the community, that you be rehabilitated.  This requires a hard road for you, given your long history of failure to respond to lenient dispositions, and your long history of drug use, and indeed, medication by way of a drug substitute, methadone.

41I regard it as appropriate to impose an aggregate sentence on you in relation to the 11 theft charges.  This was a course of conduct, and they are similar in nature.  It is appropriate there be some cumulation of that sentence on the head sentence for the aggravated burglary.

42As the offence of aggravated burglary and the summary charge of assault occurred in the one incident, I regard it as appropriate for the sentences on those two matters to be served concurrently.  Having regard to the submissions by your counsel, and the opinion of Mr Simmons, I have fixed a somewhat longer period during which you will be eligible for parole, to allow a well supervised period, where you may be able to finally as you get older, rid yourself of heroin addiction.  Could you please stand.

Sentence

43On Charges 1 to 11, being charges of theft, you are sentenced to an aggregate term of 12 months' imprisonment.

44On Charge 12 of aggravated burglary, you are sentenced to three years' imprisonment.

45On the summary charge of unlawful assault, you are sentenced to three months' imprisonment.  I direct that six months of the aggregate sentence of 12 months, be served cumulatively on the sentence on Charge 12.

46The sentences are otherwise concurrent.  I order that you serve a minimum term of two years imprisonment, before being eligible for parole.  I declare that you have served 166 days' of pre-sentence detention, and direct that it will be noted, and deducted administratively.

47I declare that had you not pleaded guilty, I would have imposed a total effective sentence of six years imprisonment, with a four year non-parole period.  Are there any other matters, Mr Prosecutor?

48MR TEO:  No, Your Honour. 

49HIS HONOUR:  Thank you.  Mr Hooper, anything from you?

50MR HOOPER:  Just the sentence for the assault, Your Honour, was that three months?

51HIS HONOUR:  Three months concurrent.

52MR HOOPER:  Concurrent.  Thank you.

53HIS HONOUR:  Yes, I want to thank you, Mr Hooper, for your submissions, and Mr Teo, for your assistance.

54MR TEO:  As Your Honour pleases.

55HIS HONOUR:  Adjourn until 10.30 tomorrow morning.

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