Director of Public Prosecutions v Zeldis

[2024] VCC 1378

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
 Suitable for Publication

Case No. CR-22-01533

DIRECTOR OF PUBLIC PROSECUTIONS

v

IGOR ZELDIS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 & 30 August 2024
DATE OF SENTENCE:	30 August 2024
CASE MAY BE CITED AS:	DPP v Zeldis
MEDIUM NEUTRAL CITATION:	[2024] VCC 1378

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Arson – Commit indictable offence whilst on bail – Relevant prior criminal history – Delay – Very good prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 s 197(6); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 48CA.

Cases Cited:Boulton v The Queen (2014) 46 VR 308.

Sentence:                  Community Correction Order for a period of 3 years and 6 months. Fined $500 on Summary Charge 5.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E James	Office of Public Prosecutions
For the Accused	Mr I Hill KC Dr M Gumbleton	Milides Lawyers

HIS HONOUR:

Introduction

1Igor Zeldis, you have pleaded guilty to one charge of arson contrary to s 197(1) and s 197(6) of the Crimes Act 1958 (‘Crime Act’), which carries a maximum penalty of 15 years imprisonment.

2You have also pleaded guilty to a related summary offence (Charge 5) of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment.

3You have admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5On 4 April 2022, at approximately 9:40pm, a fire broke out at Unit 1 at 555 Clayton Road, Clayton South (‘The Unit’). The Unit is part of a block of 8 units with a driveway running along the northern boundary.

6Fire Rescue Victoria attended the address and extinguished the fire. The fire caused extensive damage to the Unit but did not injure any person. The Unit was made uninhabitable by the fire.

7Police attended the scene. Fire Rescue Victoria provided an opinion that the fire was suspicious due to its speed and spread from the time of the first report, to the time of their arrival. Police established a crime scene. The residential unit was owned by the Department of Families, Fairness and Housing. The registered tenant at the time of the fire was Dimitri Barladyan. Mr Barladyan was not at the Unit at the time of the fire and has refused to make a statement to police in relation to this matter.

8One of the attending police officers at the scene, SC Mayer, spoke with nearby neighbours Luke Woloschin and Stacey Isherwood on the evening of 4 April 2022.

9Mr Woloschin and Ms Isherwood refused to provide a statement to police however SC Mayer’s body worn camera captured the following:

(a)   Mr Woloschin stated:

(i)he heard a commotion at the address, with multiple male voices yelling;

(ii)he approached the unit and observed three males loitering around the unit;

(iii)one of the males was holding a baseball bat;

(iv)the male holding the baseball bat was European looking, skinny with tanned skin and he had an accent;

(v)the male asked him if he knew where a male by the name of "Dimmer" was;

(vi)he believed "Dimmer" was the male who resided at 1/555 Clayton Road; and

(vii)he asked the male to keep the noise down so his daughter doesn’t wake up the male with the baseball bat replied that he too had a daughter.

(b)   Ms Isherwood stated:

(i)she observed a car parked on the wrong side of the road on Narrumburn Street with the headlights off;

(ii)she observed Mr Woloschin speaking to a male outside the Unit;

(iii)she was driving up the driveway of 555 Clayton Road to her residential unit and observed the same male smash a window of the Unit with a baseball bat;

(iv)she described the male as tanned skin, short and skinny; and

(v)she took video recordings of the premises on fire on her mobile phone.

10On 5 April 2022, Forensic Officers Michelle Morrison and Kayla Patterson attended the scene. Ms Patterson photographed the scene. Ms Morrison forensically examined the scene and determined the following:

(a)   at the time of the fire the front door was open;

(b)   there was extensive fire damage throughout the unit, particularly in the living area;

(c)   the pattern of fire damage indicated that the fire originated in the northeastern corner of the living room and then spread towards the front door and living area/study. The pattern of damage to the couch indicated that the fire originated on or around the northern end of the couch;

(d)   there were no obvious accidental sources of ignition identified in the area of fire origin;

(e)   the cause of the fire was the ignition of combustible materials, such as the couch in the north-eastern corner of the living room; and

(f)    the source of ignition was not determined. In the absence of any obvious accidental sources of ignition, Ms Morrison concluded that the fire was probably ignited directly by a match or cigarette lighter.

11On 5 April 2022, CCTV footage managed by Victoria Body Corporate Services was provided to police.  The footage captures the area outside the Unit and records the movements of you and your co-offenders prior and post the lighting of the fire. The prosecution opening summarises these observations. Some minutes before the unit is observed to be on fire you are seen taking something small from your pocket and handing it to a co-offender. The footage also depicts your clothing and features, including your tattoos on your inner left and outer right forearms. Footage from another CCTV also captures you and an unknown male running towards a Kia Stonic Wagon parked nearby.

12On 9 April 2022, Victoria Police issued a media release via an online ABC News article. CCTV footage from 555 Clayton Road was attached to the article.

13On 10 April 2022, your ex-wife, Diana Zeldis received a WhatsApp message with a link to the media article. Ms Zeldis identified you in the footage, and subsequently contacted Crime Stoppers to provide this information. On 10 May 2022, she made a formal statement to police where she stated that she was married to you for ten years before separating in 2019. You have one daughter together. She identified you in the CCTV footage as the one holding the baseball bat and was also able to identify your tattoo which has the name of your daughter.

14On 5 May 2022, Police executed a search warrant at an address in Ormond. Present at the address were you and two other people.

15Police conducted a search of the address and seized a number of items, including three iPhones. A blue iPhone 13 was identified as belonging to you.

16During the execution of the search warrant, DSC Lordanic activated a covert audio recording device prior to entering the premises and concealed it in his clothing.

17You were located in the upstairs bedroom. You were arrested.

18In the presence of SC Patounas, you stated the following to DSC Lordanic:

(a)   you know “Dimmer” as he is also Russian and attends your restaurant to eat;

(b)   you went to the unit on the night of the fire to give “Dimmer” some food;

(c)   on 4 May 2024, “Dimmer” told you that the fire was caused by an electrical fault;

(d)   “Dimmer” said he saw you on the news; and

(e)   you had seen yourself on the news.

19You were transported to Moorabbin Police Station for interview. Whilst in the car with DSC Lordanic, you further stated the following:

(a)   you saw yourself on the news;

(b)   there were 10 people at the Unit at the time;

(c)   one guy came out of the other units and said “Listen. I have my daughter here.” You said “OK. I’m sorry” and “that’s it.”; and

(d)   you were not at the address whilst there was a fire.

20On 22 December 2020, you were bailed from the Moorabbin Police Station on unrelated charges (Related summary offence – commit indictable offence whilst on bail).

21You made a no comment interview at Moorabbin Police station.

Nature and gravity of the offending

22In relation to the charge of arson, as it is unknown who actually physically lit the fire, the prosecution case is put on the basis that you were involved in the commission of the offence pursuant to s 323(1)(a) and 324B of the Crimes Act. Therefore, as you were ‘involved in the commission of the offence’ you are ‘taken to have committed the offence’.

23Arson is an inherently serious offence carrying a maximum penalty of 15 years imprisonment. In this instance the fire was lit in a unit that was one of eight. As such other units that were in close proximity, were put at risk. Further, significant damage was caused to the unit and has been assessed at approximately $250,000.

24You have provided no explanation for your involvement in this offending and when assessed for the purposes of a community correction order, you downplayed your role. However, in the circumstances it appears that this was a targeted act committed in company and by your plea you have admitted your involvement in the offending. The fire was lit in a built up suburban area, with no regard for others who were in close proximity in the adjacent units. In the circumstances in my view, this is a relatively serious example of arson.

Personal circumstances

25You are 39 years old and were born in Russia. It is unknown when you moved to Australia and you report you have no family here. You also report that you lived in Israel. You married your ex-wife in 2013 and separated in 2019. You have a daughter together although since the marriage breakdown and your criminal offending, your relationship with your daughter has been strained.

26You report that the breakdown of your marriage triggered a mental breakdown resulting in anxiety and clinical depression. At this time, you report that you used alcohol and drugs and experienced financially challenging periods. You became homeless and resorted to crisis accommodation and found yourself exposed to the criminal justice system.

27In 2019, you engaged with the Light of Hope Foundation (LOHF) as a means of support. LOHF assisted you to commence psychological counselling with Dr Boris Goloub and apply for the National Disability Insurance Scheme (NDIS). Dr Golub, in his letter of support to NDIS, opined that you suffered from PTSD, adjustment disorder and persistent depressive disorder. Your NDIS application was ultimately approved on 22 March 2022. Your initial engagement with Dr Golub was via a mental health plan commenced on your own volition as you had identified mental health symptoms following your marriage breakdown, together with flashbacks to some painful childhood memories. The NDIS plan has enabled to you to continue your counselling with Dr Golub resulting in positive change. You have indicated your desire to continue this counselling.

28A letter of support from LOHF dated 8 August 2024 was tendered on the plea. The letter acknowledges that you are ‘steadfastly progressing towards stabilising [your] mental health and aspire to attain independence’.

29Whilst the offending took place within weeks of you being approved for the NDIS, the support and structure provided by the plan has undoubtedly had a positive impact on you. This is reflected in your strong compliance with a 20-month community correction order (‘CCO’) imposed in the Magistrates Court in relation to unrelated offending and onerous bail conditions that have been in place since May 2022.

30At the time of offending, you were cut off from your daughter for a period of 18 months. It was submitted, and is evident from the materials, that you have worked tirelessly to rebuild the relationship with your daughter which remains a key motivation for you moving forward. You have been in a relationship since May 2022 which has also provided you with further stability. Your partner wrote a letter to the court outlining your otherwise good character and your commitment to restoring your relationship with your daughter. She has observed your solid efforts to remain drug free which has resulted in your reunification with your daughter through the Family Court proceedings. In August 2023 you purchased a home with your partner and you have adopted a healthy lifestyle.

31You commenced a food delivery business in July 2023 which has grown over the past year. The business also provides catering for events.

32A report from consultant psychologist Luke Armstrong was tendered on the plea. Mr Armstrong assessed you and conducted psychometric tests. In summary Mr Armstrong found your overall intellectual functioning to be below average. He found that in the period 2019 to 2021 the evidence suggests that you were suffering from a stimulant use disorder and were most likely an alcoholic. He confirms that your participation in the Magistrates Court ordered CCO and your work with your psychologist over the past 18 months, has assisted you in developing strategies to cope with ongoing stress. Mr Armstrong notes that your current mental state is very stable. He is of the opinion that your decision to desist from drug use, the presence of a protective relationship and the structure of the CCO have combined to return you to your premorbid functioning.

Sentencing considerations

33Mr Hill KC who together with Dr Gumbleton appeared on your behalf highlighted a number of matters in mitigation with a focus on your sustained rehabilitation since the commission of this offending.

34I first turn to your plea of guilty. This matter has had a long procedural history ultimately resolving following a second sentencing indication. It is however of some concern that when assessed for a CCO you sought to downplay your role in the offending to the writer of the report. Nonetheless, by your plea you have accepted responsibility saving the court the further time and expense of a trial, thereby promoting the course of justice.

35I take into account your mental health leading up to the time of the offending. It is clear on the materials that following your marriage breakdown in 2019 you suffered a significant psychological breakdown leading to anxiety and depression. This was further exacerbated when your contact with your daughter was cut off following the offending for a period of approximately 18 months. While Verdins principles are not relied on, it is clear that you have sought to address many of the issues that led you into criminal conduct following the separation. You are now in much more positive circumstances with a number of protective factors, and you are committed to continue to address your mental health concerns.

36Mr Hill submitted that delay is a relevant consideration. While the actual delay in this matter is not inordinate, it is submitted that in the time between the commission of the offence and now, you have been engaged in a sustained period of rehabilitation including the successful completion of the Magistrates Court imposed CCO, engaging in ongoing counselling, involvement in full time work, being settled in a relationship and importantly, reconnecting with your daughter. I accept that the delay can be taken into account to a degree.

37As to your prospects of rehabilitation, you come before the court with a minor prior criminal history however the subsequent matter in the Magistrates court in June 2022 which resulted in the CCO is of some concern. I was provided with a list of the Magistrates Court offences including the offence commission dates. It appears that those offences also occurred in the period following your marriage breakdown and the onset of your mental health decline. While the progress you have made is positive, in my view you will need ongoing support to maintain your rehabilitation and, if you accept the services provided to you, in my view your prospects can be assessed as very good.

38Ms James who appeared on behalf of the Director of Public Prosecutions submitted that deterrence, both general and specific, together with denunciation of your conduct are relevant sentence considerations. I agree. Whatever the dispute was that prompted this serious conduct, it was misguided and must be deterred. Further, while you have demonstrated your commitment to rehabilitation, in my view specific deterrence still has a role to play.

39Mr Hill submitted that in the circumstances an onerous CCO would be able to meet the relevant sentencing considerations reiterating the well known principles enunciated in Boulton v The Queen.[1] Ms James submitted that a combination sentence is more appropriate as the seriousness of the offending demands a period of imprisonment. I had you assessed for a CCO and you have been found suitable.

[1] (2014) 46 VR 308.

40In my view in all the circumstances a CCO is able to meet the relevant sentencing considerations. While all CCO’s are punitive in nature, the order I impose will have both punitive and therapeutic special conditions, and it will be onerous.

Sentence

41Mr Zeldis, would you please stand.

42Igor Zeldis on Charge 1, arson you are convicted and you will be placed on a community correction order for a period of 3 years and 6 months.  In addition to the standard conditions, you will be required to undertake 400 hours of unpaid community work, you will required to undergo treatment and rehabilitation in relation to alcohol use, your mental health, and programs to reduce reoffending. You will also be subject to supervision.

43Pursuant to s 48CA of the Sentencing Act 1991 (‘Sentencing Act’), I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.

44In relation to Related Summary Charge 5, commit indictable offence whilst on bail, you are convicted and fined $500.

45Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non parole period of 12 months.