Director of Public Prosecutions v Tsiavis

[2018] VCC 1396

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -18-00693

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAVVA TSIAVIS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2018
DATE OF SENTENCE:	20 August 2018
CASE MAY BE CITED AS:	DPP v Tsiavis
MEDIUM NEUTRAL CITATION:	[2018] VCC 1396

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Conduct endanger life
Legislation Cited:  Firearms Act 1996

Cases Cited:

Sentence:Total Effective Sentence 3 years 3 months with a non-parole period of two years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Hill	Director of Public Prosecutions
For Accused Tsiavis	Mr J. P McQuillan	Patrick W Dwyer Criminal Lawyer

HIS HONOUR:

1Savva Tsiavis, on 14 August 2018, you have pleaded guilty to one charge of Indictment No.H12028463.  You have pleaded guilty to reckless conduct endangering the life of Salim Mohamed on 8 June 2017.  The maximum penalty for that offence is ten years' imprisonment.

2You also admitted your prior criminal history which I will refer to in your personal circumstances. At the time of the offending, you were a prohibited person contrary to s.5(1) of the Firearms Act 1996. Your offending involved the use and discharge of a handgun.

Circumstances of you offending

3On 8 June 2017, you attended at 56 Derby Street in Kensington.  You were in the company of Tristan Le, your co-accused and other known associates of Redwan Adem, Halimo Hassan and Sarah Summers.  Your victim, Salim "Fabulous" Mohamed, is known to all of you.

4You attended at 56 Derby Street at approximately 12.15 pm in the afternoon on 8 June 2017.  You and Le were armed with firearms.  You had been picked up at your Southbank premises shortly prior to these events by your co-accused and your known associates.  There was an ongoing dispute between Adem and Mohamed.

5At that time, Mr Le, your co-accused, phoned Mohamed and they had a brief conversation.  Le had arranged for Mohamed to meet him at the Derby Street flats.  At that time, Mohamed exited a lift in Derby Street flats accompanied by Cherkera Lovett.  He then walked to the front of the flats with Lovett.

6As they walked out of the building, Ms Lovett ran off.  Mohamed turned right and walked into the direction of the car in which you and your co-accused came in. Mohamed raised his right hand signalling towards you and Mr Le.  You and Mr Le walked away from the car and toward the driveway of 70 Derby Street in Kensington.

7At about 12.17pm, Mohamed then stood on one side of the children's playground which is located next to the Derby Street flats and walked back and forward beside the playground.  You, Le and Mohamed spoke to each other across the playground.  Mohamed moved away from yourself and Mr Le in the direction of the Derby Street flats and as he did so, you and Mr Le produced your firearms.

8You and Le then stood in the carpark at 70 Derby Street in Kensington and walked towards the Derby Street flats and the children's playground.  Redwan Adem, Halimo Hassan and Sarah Summers remained in the car during this time.

9As Mr Mohamed was out the front of the Derby Street flats moving back and forth and away from Mr Le and yourself, you were standing between the parked cars.  Le produced his high-powered firearm, you produced a handgun before firing a total of six shots in the direction of Mohamed.  You and Le fired these shots that is the two of you fired six shots while standing in the driveway of 70 Derby Street in Kensington, on the footpath and grass area of the driveway.  That is the charge of reckless conduct endangering life.

10Your firearm was a .22 handgun which was not recovered by police.  The CCTV from the Derby Street flats captures bullets hitting the ground and knocking dirt up in the air with Mohamed moving back and forward, hiding behind two trees to avoid getting shot.  The CCTV also shows Mohamed holding up his right hand in a gesture to that similar of holding and firing a firearm towards you and Mr Le.

11The bullets fired by you and Mr Le hit nearby trees and the building of the Derby Street flats, going through the security mesh wall, a glass window and the plaster. One projectile was lodged in the front security door screen of the ground-floor unit.  Thankfully, no person was hit or injured as a result of this shootings.  You and Le then left the scene in a car with your associates.

12The police later arrested Mohamed but forensic testing on him and his clothes cleared him of any shooting activity.  The Ballistics' Unit of the Victorian police examined the crime scene in the Derby Street flats and the police located the .223 calibre fired cartridge case from Mr Le's firearm on the grass and under the parked car the east side of the children's playground.

13A further two .22 calibre unfired rounds and .22 calibre cases from your firearm were located in the same area between the grass and the footpath next to the children's playground.  The two trees Mohamed was hiding behind sustained some damage as a result of being hit by the bullets.  There is damage to the building at Derby Street, to the security mesh wall, a glass window and the plaster trim from the bullets penetrating the building.  This damage is located behind where Mohamed was standing at the time the shots were fired at him.

14A projectile from your .22 calibre handgun was lodged in the security door of Unit 3 in a direct line from where you were firing toward Mohamed.  This offence was very dangerous and it is only luck that no person was injured.  The police investigation continued by the inspection of CCTV and phone record examination.

15On 13 July 2017, a search warrant was executed at your address at 39 Coventry Street, Southbank.  Items were seized during the course of that search including a pair of white Asics shoes which were seen worn by you on the CCTV.

16On 19 July 2017, you contacted the police and arranged to meet them in Macaulay Road, North Melbourne where you were arrested.  You were interviewed and you stated the following during the course of your interview: 

·You remembered being home;

·that you went to the city at some point;

·that you were at home in Southbank;

·that you went to Kensington;

·that the girl was in a situation in strife and a bit of trouble (you were referring to Cherkera Lovett);

·that someone was holding her;

·that her name was Cherkera Lovett;

·that she was known to you for years;

·that she was in a bit of trouble with her boyfriend or her ex-boyfriend;

·there was a bit of an incident and you went back to the car;

·that you said that Chekera had come to the police station to tell them what had happened;

·that she had jumped out of the train station around the corner and caught a train to the northern suburbs;

·you identified yourself on the CCTV stills from Southbank;

·you said you had no involvement in being at the 56 Derby Street in Kensington with a gun;

·that you were there and an African guy had a gun and he was shooting at you;

·You hopped out of the car for a second;

·the girl was standing close to the guy with a gun;

17During the record of interview, you supplied by consent the DNA buccal swab.

18You have been in custody since the day of your arrest.  You have served 397 days pre-sentence detention.  As part of the police investigation, a number of compulsory examinations of witnesses including Hassan, Summers and Mohamed were conducted.

19This matter was listed for contested committal on 3 and 4 April 2018.  You resolved this on 4 April 2018 prior to any evidence being called by the prosecution.  Not surprisingly, Mr Mohamed has not filed a victim impact statement in this case.  I am told he is custody in protection for other offending by him.

Your personal circumstances

20At the time of offending, you were 30 years old.  You are now 31.  You were born in Greece.  At the age of three, your family moved to Australia.  No doubt your parents wanted to give you a better chance in life.  You were brought up in Preston.  You father works as a welder but he is currently unemployed.  Your mother works as a personal carer attendant.

21In the course of the plea, your mother gave evidence here in court.  She did so passionately and emotionally.  She said it was partly the family's fault that they gave up on you when you were young and started staying away from school when you were about 14.  She stated that since your time in gaol this time, you have reconnected with the family and have changed your attitude to the family.

22You have two older brothers both of whom live with your parents.  They both work and live law-abiding lives.  In recent times, one of your brothers tried to assist you on a rehabilitative path.  You lived together in a unit in Southbank.  You returned to your old criminal and drug using lifestyle and your brother returned home.

23Your primary education was at Wales Street Primary in Northcote.  You struggled with reading and writing and you had assistance with additional tutoring.  You started at a local high school but were expelled for fighting in Year 8.  You then attended Collingwood Alternative School for two years in a sporadic fashion.

24At age 15, you left school permanently.  You have worked in the roles of renovating houses, garbage collector and concreting.  You have not had any stable employment since you were aged 22.

25You have an extensive criminal history.  Your first appearance was on 3 March 2005 for criminal damage at the Heidelberg Magistrates' Court.  You have had a total of nine previous court appearances for charges including criminal damage, possessing prohibitive weapon, contravening family violence orders, reckless conduct endangering serious injury, prohibited person possession of firearm, drug charges (predominantly methamphetamine), burglary and handling stolen goods.  Your longest term of imprisonment prior to this offending was eight months' imprisonment.

26You have a violent past with dishonesty offences included in your criminal activity.  You have a long-term drug addiction problem which has driven your criminality.  Predominantly you have used ice intravenously from the age of 18 until the time of your arrest, a period of some 12 years.

27Your period in custody this time is your longest period without drug use.  Exhibit “T5” was a bundle of urine analysis certificates covering the period of 10 August 2017 to 2 June 2018.  You had negative results for amphetamines and only a positive result for opiates which was on 22 December 2017, was explained by medication for pain relief due to an injury suffered by you.

28Prior to your offending, you were experiencing swelling in your lymph nodes.  Investigations for cancer were undertaken at the Austin Hospital.  The cancer results were inconclusive.  You did not follow up your condition until your family forced you back to hospital.  In 2017, your results were all clear.

29Shortly after that reprieve you have gone on out and offended in this case.  Your mother's evidence was that you have turned a corner this time.  Your mother handed up a "Thank you" card which was Exhibit “T4”.  It expresses an apology by you to your parents about how you spoke to them in the past.  You have a substantially drug use history and previous convictions for being a prohibitive person in possession of a firearm.  Whilst you are not facing that charge, you clearly used a firearm in this offending.

30You have been examined by Gina Cidoni for the purpose of this sentencing process.  Ms Cidoni prepared a report which was undated.  She noted that your profile reflected immaturity, impulsivity with antisocial traits.  She did not assess you as having a personality disorder.  Ms Cidoni identified your drug use as your biggest risk factor of reoffending.  This is something your family identified when you were very young but you did not listen to them then.  Hopefully you will listen to them upon your release from prison and properly reengage with your family.

Sentencing Considerations

31The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them and your personal circumstances and those of your victim.

32I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interest of the community seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

33You have pleaded guilty to this charge and it was indicated at the committal proceeding.  Your plea has utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates a public confidence in the legal process set up to protect the community.

34You have by your plea relieved your victim from giving evidence against you.  It facilitates closure for him.  Your plea is also a clear acknowledgment by you that you accept your responsibility for your criminal conduct in this case and your plea also recognises you are willing to facilitate the course of justice in the community.  I also accept your plea to this charge indicates and demonstrates some remorse on your part.

35As part of the governing principles to be considered in sentencing you, I must take into account the current sentencing practices.  That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics relating to those sentences.

36I have considered those statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular facts and many of the cases would be distinguishable from your case as indeed they are from one another.  Of course, current sentencing practices are only one of the considerations I have to take into account when sentencing you.

37Your counsel submitted that a combination sentence of imprisonment and a community corrections order was appropriate in your case.  A substantial imprisonment sentence is the only appropriate disposition given your significant criminal history and the nature of your offending in this case.  Your criminal history clearly indicates you are no stranger to firearms.  You have on this occasion used one to offend against your victim.

38Some of the relevant factors to take into account when assessing the seriousness of your offending are:

(1) Your age.  You are seven years older than your co-offender, Le;

(2) the planning that had been behind this offending;

(3) the offending with firearms took place in broad daylight;

(4) the discharging of a firearm across a children's playground which was situated in the forecourt of a public housing estate;

(5) this shooting has all the hallmarks of a vendetta or payback directed to your victim;

(6) the level of risk of injury or death to your intended victim or some innocent bystander was high; and

(7) according to Ms Cidoni, at the time of the offending, you were in a condition of stimulant intoxication which led to increased autonomic activity as she described it.  This is a further level of recklessness in this offending.  It is not a mitigating factor.

39The offence calls for denunciation of your offending.  I am mindful not to impose a crushing sentence on you given that you have reengaged with your family from within the prison walls.  I have fixed a non-parole period which encourages you to continue your good behaviour in prison and your work.  It also gives you the opportunity if granted parole to have the support and supervision upon your release from prison.

40I assess your prospects of rehabilitation as relatively poor.  You have had a long period of drug addiction and have not engaged in positive lifestyles for nearly a decade.  Your family sought to assist you recently when you had your cancer scare but ultimately you rejected their offers of assistance.

41You now have reconnected with your family from the prison cell.  Your rehabilitation chances will be enhanced by maintaining a drug free lifestyle when you are released and engaging with your family when you are not in a crisis situation such as your health scare or your current status of being incarcerated.

42I have taken into account the principles of parity in sentencing in fixing your sentence.  Your offending is a very serious example of this offence.  Your offending calls for stern punishment to satisfy the sentencing requirements of general and specific deterrence, just punishment, denunciation for you action and the protection of the community.

43Will you stand please?

44On Charge 1, you are convicted and sentenced to a term of imprisonment of three years and three months.  I will fix a non-parole period of two years and three months.  Your total effective sentence is three years and three months, non-parole period is two years and three months.

45Section 6AAA; but for your plea of guilty, I would have sentenced you to a period of imprisonment of four and half years with a non-parole period of three years. I declare that you have served pre-sentence detention of 397 days.  Is that the correct number?  Thank you and I will make the forfeiture and other ancillary orders when they are handed up.

46Thank you.  I will sign those ancillary orders.  Does that cover everything?

47MR HILL:  Yes, Your Honour.

48HIS HONOUR:  Thank you.  Can you remove the prisoners please?  Thank you.  I will adjourn until 11, thank you.

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