Director of Public Prosecutions v Zefi

[2023] VCC 2341

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01199

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARTHUR ZEFI

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2023
DATE OF SENTENCE:	22 September 2023
CASE MAY BE CITED AS:	DPP v Zefi
MEDIUM NEUTRAL CITATION:	[2023] VCC 2341

REASONS FOR SENTENCE
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Subject:Persistent contravention of intervention order

Catchwords:          Guilty plea – 244 calls and 3 SMSs made to intimate partner and two attendances at her home over eight weeks - relevant prior conviction -  traumatic war service in Kosovo – protection of community and rehabilitation

Legislation Cited: Family Violence Protection Act 2008

Cases Cited:Zac Skeates (a pseudonym) v R [2023] VSCA 226; DPP v Morton [2020] VCC 1850; DPP v Smith [2017] VCC 1851

Nguyen

Sentence:Aggregate sentence of eight months imprisonment and an 18-month CCO

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr Thomas Crouch	Office of Director for Public Prosecutions
For the Defence	Mr John Desmond	Pica Criminal Lawyers

HIS HONOUR:

1Arthur Zefi, you have pleaded to guilty to 2 charges of persistent contravention of intervention order.[1]

[1] Contrary to section 125A Family Violence Protection Act 2008

Circumstances of offending[2]

[2] The circumstances of your offending are set out in the Prosecution Opening for plea dated 21 September 2023. They are agreed facts.

2Your offending occurred between 7 May 2019 and 3 July 2019.

3You had been in an on and off intimate partner relationship with Hilda Santa Lucia (“the complainant”) for about four years until March 2019.

4On 14 April 2019, the complainant reported to police you had seriously assaulted and threatened her.

5Police arrested you on 16 April 2019 and charged you with a number of offences arising out of that episode.[3]

[3] On 20 September 2023 the jury acquitted you of charges which had been prosecuted as a result of that incident

6On 29 April 2019, a Magistrate at Broadmeadows made a two-year family violence intervention order, in favour of the complainant, against you.

7The order prohibited you from:

(a)   contacting or communicating with the complainant; 

(b)   approaching within 5 m of her;

(c)   going to, or remaining, within 200 m of her home.

8On 29 April 2019 police served you with a copy of the order and explained the conditions to you.

9Between 7 May 2019 and 4 June 2019, on six days, you telephoned the complainant 78 times; sometimes more than 20 times in a day (charge one)

10Between 5 June 2019 and 23 June 2019, you called the complainant daily, apart from 6 and 19 June, making 166 calls. You also sent her three SMS messages. And, on 15 June 2019, you went to her home and buzzed her apartments intercom. When she answered you hung up. Your buzzed her again. When you said, “Hilda, it’s me,” she hung up. Nearly 2 hours later, when the complainant left her apartment, in a car, she saw you standing at her streetcorner (charge two)

11By your guilty plea you admit you knew, or ought to have known, that each time you called her, or messaged her, or went to her home, you were breaching the Family Violence Intervention order.

12Your behaviour persistently breached the intervention order. The complainant was scared and worried for her safety. And she felt unsafe in her own home.

13When police arrested you, you were not mentally fit to be interviewed.

14You were remanded in custody.

15You have spent 1486 days in presentence detention.

Criminal Record

16You have admitted a relevant criminal record

17On 19 May 2015, at Broadmeadows Magistrates Court you were convicted of persistent contravention of the family violence order and bail offences and sentenced to 29 days imprisonment with a 12-month CCO.

18On 26 July 2016, a contravention of that order was proven, and the order was varied.

19You have one subsequent court appearance.

20On 8 October 2020 you were convicted of two counts threat to kill and one count of common assault and sentenced to months imprisonment. The victim was your estranged wife.

Personal circumstances[4]

[4] Your personal circumstances set out psychological report of Gina Cidoni, who assessed you on four October 2020 (Exhibit 1)

21You were born in March 1980 in Albania. You were 39 years old when you offended. You are now aged 43 years.

22You have four sisters and a brother.

23You were raised in Albania. At home, your father and brother, who was older than you, were physically abusive. At 16, you left home and went to live in Macedonia.

24In 1997 you returned to Albania. In 1998, when war broke out, you were conscripted into the army. You witnessed many atrocities and faced death itself many times. You remained in Albania after the war until 2000 when you move to Greece. For seven years, you lived and worked at Santorini where you met your wife, who is Macedonian. She is also an Australian citizen.

25You came to Australia in 2009 and married her here. You lived with her mother at Moonee Ponds.

26You have a son together. He was born in January 2010 .

27Your wife is a nurse. You worked as a caravan builder for 12 months. This employment was interrupted due to an arm injury in 2010. Subsequently, you have Hello had intermittent labouring and factory work

28You separated in 2015.

29You formed a relationship with the complainant in the same year.

30You stayed with her for brief periods. Otherwise, you were homeless and slept on the street or stayed at a shelter.

31You were sleeping in a park at Maribyrnong when police arrested you.

32You told a psychologist, Gina Cidoni, you do not use drugs and drink alcohol only very occasionally. You said you do not gamble.

33When she interviewed you, you were markedly disturbed and stressed.

34In the context of your war experiences, she diagnosed you with PTSD, depression and anxiety.

35Your intelligence testing score was very low.

36Ms Cidoni concluded you have difficulties in thinking clearly, making sound decisions and problem-solving. In her opinion your offending is causally linked to your mental condition which would make coping in prison harder for you.

37She recommended a PTSD treatment program for you.

Sentencing submissions – defence

38Your counsel, Mr Desmond submitted, considering your offending is a low-level example of a serious offence, I should impose upon you a term of imprisonment, less than the time you have spent in remand custody

39When I told him, in my view, community protection, and your rehabilitation, necessitate your supervised release into the community, he submitted, considering you have already been substantially punished by your imprisonment, a CCO could meet all sentencing objectives

Sentencing submissions – prosecution

40Mr Crouch, who appeared for the Crown, submitted, given your offending was repetitive and persistent, and the complainant suffered significant harm, any CCO should be combined with a sentence of imprisonment.

41Helpfully, he referred me to sentences of this court for broadly comparable offending.

Consideration

42The maximum penalty for each of your crimes is five years imprisonment.

43Although your crimes involved no actual violence or threat of violence, the number of your communications was oppressive and extreme. Additionally, you went to the complainant’s home when it was prohibited.

44While you were not violent and didn’t threaten violence, you acknowledge your conduct caused her to be petrified and worried for her safety. And she felt unsafe in her own home.

45Very recently, in  Zac Keates (a pseudonym)  v The King [2023] VSCA 226, the Court of Appeal said, at [61], “… the seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury. Family violence is now understood – and defined in law – to encompass behaviour that is physically, sexually, emotionally, psychologically and economically abusive or threatening or coercive, even if such behaviour does not constitute a criminal offence. That kind of behaviour produce a situation where people, disproportionately women, live in “real and justified fear of men who are, or were, their intimate partners.” It produces a domestic atmosphere steeped in dread. It robs victims of capacity and agency and also engenders shame.”

46Your crimes warrant the imposition of a term of imprisonment.

47However, there are matters which I have taken into account to  moderate the prison term and the type of sentence I will impose.

48I accept the following mitigating factors;

(a)   Firstly, your guilty plea is evidence of some remorse.

(b)   Secondly, your mental health problems, caused by the trauma of your service for your country in the Kosovo war:

(i)are causally linked to your offending because they have impacted your ability to handle conflict and situational stressors, and

(ii)have made prison harder for you.

49Because you have a history of similar offending against your wife, specific deterrence and protection of the community are important sentencing considerations in your case.

50In my view, to achieve these objectives, and your rehabilitation, you require supervised release, with interventions to deal with your mental health and behavioural problems, into the community.

51I have had you assessed for a community correction order, and you have been found suitable.

52You told the assessing officer you understand the requirements of a CCO and will comply with another if I decide to make such an order.

53You completed your 2015 CCO, which was varied, in 2016, after a formal court breach.

54I accept there are some protective factors for your rehabilitation, namely:

(a)   your encouraging responses when you were assessed for a CCO;

(b)   the help of your friend, Rocco Madafferi, who supported you at court and will have you live with him on your release; and

(c)   your desire to re-establish a relationship with your son.

55I am hopeful for you, Mr Zefi, provided you do address your mental health and behavioural issues, you will not reoffend.

56I will impose an aggregate sentence because your 2 crimes form a series of offences of the same character.

Conclusion

57By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

58Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

on the 2 charges of persistent contravention of intervention order you are sentenced to 8 months imprisonment with a CCO.

59Pursuant to s 18 I declare 8 months of the time you have spent in custody is to be deducted from your sentence.

60The effect of this declaration is you have served your prison term.

61Accordingly, your CCO will commence today.

62In addition to the core conditions, to promote protection of the community, and your rehabilitation, I impose the following special conditions:

(a)   Supervision

(b)   Mental health treatment and rehabilitation

(c)   Programs to reduce reoffending

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