Director of Public Prosecutions v Zepic

[2021] VCC 875

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01314

DIRECTOR OF PUBLIC PROSECUTIONS

v

ENES ZEPIC

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2021
CASE MAY BE CITED AS:	DPP v Zepic
MEDIUM NEUTRAL CITATION:	[2021] VCC 875

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel
For the Director of Public Prosecutions	Mr L. Cameron
For the Accused	Mr A. Lewin

HER HONOUR:

1Enes Zepic, you have pleaded guilty before me to two charges of theft, one charge of negligently dealing with the proceeds of crime, one charge of being a prohibited person in possession of a firearm and one charge of possessing a drug of dependence. 

2There were also three summary charges which were uplifted to be heard before the County Court pursuant to the provisions of the Criminal Procedure Act.  They were two charges of possession of a prohibited weapon and one of possession of cartridge ammunition without a licence. You have also admitted prior convictions.

3The facts underlying your offending are as follows.  In the early afternoon of 23 January 2019 police saw on CCTV footage, taken at the Airport West Westfield Shopping Centre, a white Toyota Kluger travelling through the northern car park past the Westpac entry.  Police were patrolling the northern car park of the shopping centre when they were alerted to the white Toyota Kluger by a member of the public.  About 10 minutes later you were seen on CCTV going into the shopping centre wearing a red baseball cap, black, T-shirt, black tracksuit pants and dark green and white Adidas runners.

4Police located the Toyota which bore stolen Victorian registration plates and it was parked on a concrete traffic island.  It was locked and secured.  Police observed a firearm lying on the rear driver's side seat in plain sight.  The Toyota was also then identified as an outstanding stolen vehicle.  It had been stolen during a residential burglary in January 2019.  Your possession of the stolen vehicle and use of it underlies Charges 1 on the indictment, theft of motor vehicle.

5The Toyota was towed for examination.  Police located within the car a loaded 9mm single barrel Luger, which was a semi-automatic handgun with the hammer cocked.  Your possession of this underlies Charge 3 on the indictment, being a prohibited person in possession of a firearm.

6Police located 12 9mm rounds of ammunition in the magazine of the handgun.  Your possession of that underlies summary Charge 16, possession of cartridge ammunition.  Police also located a white LG mobile phone in the centre console.

7There were two stolen Victorian registration plates fixed to the front and rear of the vehicle and your possession of those underlie Charge 2 on the indictment, negligently dealing with the proceeds of crime.

8Police took trace DNA swabs from a Coke can and a water bottle located in the car.  An orange and blue work top with your name embroidered on the right breast was also located and the mobile phone was fingerprinted, showing your thumb print on it.  Police also found one of your fingerprints on the false registration plates.

9Further examination of the handgun showed that the serial number had been erased and it was established by police, ballistics experts that the gun was capable of being discharged.

10On 8 February 2019, police executed a search warrant at your home in north Werribee.  They found a key to a Volkswagen Golf.  That car was located at your home bearing false number plates and your possession of those underlie Charge 4 on the indictment, theft.  They also found an extendable baton in the boot of the Golf car.  Your possession of that underlies the summary charge of being a prohibited person possessing a weapon.  They also found a Ziplock bag containing 11.2 grams of methylamphetamine.  Your possession of those underlies Charge 5 on the indictment, possessing a drug of dependence.

11Police also located a black taser, your possession of which underlies a further summary charge of being a prohibited person in possession of a weapon.  They also found clothing items identical to that found in the Kluger on 23 January and seen being worn by you in the CCTV footage from the same date.

12During a record of interview with police you initially denied knowledge or ownership of the Toyota but later admitted buying it for $500 from a drug associate who you would not name.  You said you purchased it in the early hours of 23 January.

13You admitted you were the person seen in the CCTV footage.  You admitted ownership of identifying clothing.  You ultimately, after initial denials, admitted ownership of the mobile phone located in the Toyota.  You denied knowledge of the handgun, saying you had never touched it.  You denied being involved in the theft of the number plates fitted to the Toyota but you did admit you were not licenced to carry a firearm.  You told police you were borrowing the Volkswagen Golf but later admitted to buying it and saying you were aware it was stolen and paying $500 for it.  You denied knowledge or ownership of the extendable baton but admitted possession of the methamphetamine, which was, I neglected to mention, found on your bedside table.  And you admitted possession of the taser located in your bedroom.

14The maximum penalty for theft is 10 years' imprisonment.  The maximum penalty for negligently dealing with the proceeds of crime is five years' imprisonment.  The maximum penalty for being a prohibited person in possession of a firearm is 10 years' imprisonment.  The maximum penalty for possessing a drug of dependence is one years' imprisonment or 30 penalty units or both.  The maximum penalty for being a prohibited person possessing a weapon is two years imprisonment or 250 penalty units.  And the maximum penalty for possessing cartridge ammunition is 40 penalty units.

15No victim impact statements were tendered.  A contested committal was conducted.

16That committal resulted in you being committed for the charges with which I am dealing, but also in the discharge of other charges.

17Ultimately, this matter was taken to an initial directions hearing on 4 July 2019.  The matter was listed for trial on 1 August 2019 after the failure of those discussions.  You were granted bail with fairly strict conditions, including a curfew

18A sentence indication was conducted on 7 May 2020, at which date the matter was finally resolved and you entered a plea of guilty.

19I now turn to your personal circumstances. You are now 34 years of age. 

20Your parents immigrated from Bosnia in 1998 and you were born here and raised in Yallourn until you were a teenager when the family moved to Werribee.  You told senior clinician of Lamberti Associates, Amanda Brown, that you had a happy childhood experience and at that stage both you and your brother were living with your parents.  You told Ms Brown that you loved your home life and never wanted to move out.

21You completed Year 10 at secondary school before leaving to begin a cabinet making apprenticeship, at which time you were 16.  You completed that apprenticeship when you were 20.  You then moved across to affirm engine recognition at Head Tech Cylinder Heads, as you had always loved cars and you worked with that company for seven years, completing your reconditioning apprenticeship when you were 27.

22You then worked at an organisation called The Quarry where you worked as a machine operator for 18 months.

23When you were 29 you established your own engine reconditioning factory which operated for about 18 months until you were arrested and gaoled in relation to these matters.

24You began using drugs when you were 18.  You started off with ecstasy which you essentially used in nightclubs on weekends.  When you were 25, however, you were introduced to cocaine which you used on a sporadic basis until you became reliant upon it.  Between the ages of 25 and 28 you were using up to six grams a week.  When you were 28 you were then introduced, unfortunately, to ice because cocaine was too expensive and you found ice more effective, as most ice users always do.  Eventually your use of methamphetamine increased to a daily use of a gram and that was within a year.  You enjoyed using it, again, as many people working in trades unfortunately do because it enabled you, amongst other things, to work very long hours and to work nightshift.

25You told Ms Brown that you started using drugs because they were fun and it worked for you.  Then you lost a very close friend to suicide and to some extent it appears drugs helped you with the emotional aftermath of that.

26Along the way, during what was an admirable work history, you managed however to compile a number of concerning priors, beginning in 2006 when you were dealt with for criminal damage. In 2007 you were dealt with for receiving stolen goods, theft and burglary.

27In 2008 you were dealt with for driving in a manner dangerous and exceeding the speed limit.  You were dealt with again in 2008 for burglary, criminal damage, theft of motor vehicle, going equipped to steal, for which you were placed on a short community based order.

28In 2010 you were dealt with for breaching an alcohol interlock condition, unlicenced driving, excessive speeding and you were breached on the community based order and fined.

29In 2015 you were again dealt with for breaching an alcohol interlock condition, other minor driving offences, such as driving without a P plate, unlicenced driving and so forth and placed on another community corrections order, but you were breached on that in October 2016 and placed on a suspended sentence.

30Then in October 2016 you were in gaoled for 100 days for drive whilst disqualified, theft of motor vehicle, fraudulent use of registration label, possessing a controlled weapon, receiving stolen goods and forging a registration label.  On that same day your community corrections order was breached.

31In December 2016 you were dealt with at the Sunshine Magistrates' Court for burglary, theft of motor vehicle, unlawfully entering premises, handling stolen goods, committing an indictable offence on bail, theft of a trailer, possessing a prohibited weapon, possessing house break in implements and possessing cartridge ammunition.  You were sentenced to six months' imprisonment.

32I was instructed by your counsel that essentially much of this offending arose in the context of your drug use, of the inevitable poor associates that you make when you are using drugs on a regular basis and I make the comment that the offending for which you were arrested in 2019 is a strong indication to me that had you not taken the positive steps, which I will shortly outline, you were heading for a life of heavy crime, if I can put it that way.  I say that because of your possession, in broad daylight, in a car of a loaded semi-automatic handgun with the serial ground off.  That says to any person experienced in the criminal law that whoever is dealing with that gun and whoever is committing those offences has just notched up the level of their criminal involvement.  That means you are a person who can get hold of a dangerous weapon through whatever underground criminal contacts you have begun to make and it indicates a close association with them.  Am I making myself clear?  And am I wrong?  No.  All right.

33Mr Zepic, hopefully you will never appear before a court again.  But as soon as any judge experienced in the criminal law comes across the artifacts that were involved in your offending a sort of light goes on - this is not going to look good in my sentencing remarks but I want to say it anyway.  A sort of a red light 'heavy crook' flashes up and that is what you are dealing with.  So that even though you do not really have prior convictions equating to the seriousness of that, in terms of what you have been caught for, if I can put it this way and for what the courts have dealt with you. At the end of the day that says to me you are moving in very heavy criminal circles and you were, as I said to your counsel this morning, teetering on the edge of a very long drop.  All right?

34When this matter was heard on 7 May I was persuaded by your counsel because you had the good sense, once you were released on bail, to engage with the services of Lamberti & Associates to defer sentence of this matter for 12 months in order to see how you went, if I can put it that way.  You have gone incredibly well.  You are now employed as a concreter.  I receive a very positive reference from your employer to that effect.  You are engaged to a woman who you have known as a friend for many, many years before becoming involved, which is always a very good basis for a relationship.  She is a respectable employed person.  The two of you have now purchased a house, you are expecting a baby.  You are looking to open your own business.

35Importantly, I have now reports saying that you have satisfactorily dealt with your drug problem and the psychological problems underlying it and all in all you have resolved a number of sentencing issues that would otherwise make it impossible for a court to deal with you in any way other than by imposing a term of imprisonment.

36Importantly, specific deterrence, that the imposition of a sentence designed to teach you a lesson and to deter you from your offending is no longer necessary.

37More importantly, the principle of protection of the community is no longer, in my view, live in the sentencing exercise before me.  Protection of the community is a principle which says that a judge in sentencing an offender must look at what danger they present to the community.  Are they likely to come out again and engage in criminal behaviour in a way which can endanger a member of the community, such as driving around with a loaded gun. Because of the actions you have taken, because of the rehabilitation you have undergone I no longer regard you as a danger to the community.

38The issue of general deterrence, however, does remain live.  General deterrence is a principle that says the court must impose a sentence in certain circumstances which sends out a message to the community that makes it very clear that if other persons are inclined to offend in the same way they will be met with by a stern response from the court. In particular theft of motor vehicle and possession of that loaded weapon cry out for a disposition which does send that message, which does answer what is called dictates of general deterrence.  Because of that requirement I am not able accede to your counsel's submission that I should deal with you only by way of the imposition of a term of imprisonment, which you have already served.

39Now ordinarily, because I am going to proceed to the imposition of what is called a 'combination', that is a term of imprisonment combined with a community corrections order, I would have to stand this matter down and have you assessed.  But I am satisfied that I do not need to order that you undergo further drug treatment or mental health treatment.  In the circumstances I need only impose a special condition of unpaid community work and if I impose less than 200 hours and a community corrections order of less than two years I can do that without you being assessed and I propose to take that course.

40I note that as a result of the materials that have been produced on your behalf indicating the very great rehabilitative measures you have undertaken, the prosecution no longer seeks that a further term of imprisonment be imposed.

41I am therefore going to deal with this matter in an aggregate way.  In my view the offending, essentially, all arises out of the same set of incidents and all the charges, bar the two charge relating to possession of cartridge ammunition, for which I can only fine you, I am going to sentence you to an aggregate term of 193 days which I declare have already been served by way of pre-sentence detention.  And I am going to release you on a community corrections order for 12 months.  This order is shorter than I would otherwise have imposed.  That is because, firstly, you have successfully remained on bail with stringent conditions for a period of two years.  You have also successfully undertaken another community corrections order in relation to other offending which was deal with in the Magistrates' Court.  And because of those two matters I am going to impose a 12 month community corrections order as opposed to, for example, an 18 month to two year community corrections order which I might otherwise have been inclined to do.

42I can only place you on a community corrections order with your permission.  Could you stand up please, sir, while I explain the conditions to you.

43They are that you must report to the office of corrections within two working days of the making of this order, that is by Wednesday of this week.  Whilst on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and then be gaoled for it, it means that if you commit an offence for which theoretically you could be gaoled, like knocking off a box of matches from Woolworths, you will breach this order, you will be brought back in front of me and I will re-sentence you.

44Whilst you are on the order you may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from the community corrections office as directed.  You must obey all lawful directions of the Community Corrections office.  You must not attend upon the Community Corrections office under the influence of drugs or alcohol.  You must report any change of address or occupation within 48 hours of the making of that change.

45I am going to order that you undertake 120 hours of unpaid community work.  Are you prepared to enter this order?

46OFFENDER:  Yes, Your Honour.

47HER HONOUR:  Thank you.  You can have a seat whilst the paperwork is prepared.

48In relation to the charge of possessing cartridge ammunition without a licence I am going to fine you $200 and I give you three months to pay.

49Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three and a half years, and order that you serve a minimum term of two years.

50Because I have convicted you of the offence of theft of a motor vehicle, I must take action in relation to your licence. Any licences you hold are suspended and that will be for a suspension period of one day. 

51HER HONOUR:  Yes.  Where do you live?  Darley, Bacchus Marsh.

52MR LEWIN:  Is there a Bacchus Marsh corrections office?

53HER HONOUR:  No.

54ASSOCIATE:  Or otherwise Melton.

55HER HONOUR:  It would be Melton.

56MR LEWIN:  There is no Bacchus Marsh corrections?

57HER HONOUR:  No.

58MR LEWIN:  Well then, yes.

59HER HONOUR:  You will be attending at Melton.  All right but you are suspended for one day.  And that will be - I guess I better say - did you drive today?

60OFFENDER:  No, my partner did.

61HER HONOUR:  All right, so that is today.  So you cannot drive until tomorrow.  All right?

62I am taking this unusual step because of the importance that your licence plays in your employment.  I have received a letter from your employer to that effect and it is my expressed view that very often the work of rehabilitation can be undone by loss of licence.  I am satisfied that that may well be the situation in your case and therefore I am taking that unusual step.

63Yes, thank you.  I think that takes care of everything.  There are the disposal orders and things like that?

64MR CAMERON:  Your Honour made those on 7 May last year.

65HER HONOUR:  Gosh, I am hardworking judge.  I have no memory of doing that.  All right, thank you very much.

66MR LEWIN:  As Your Honour please.

67MR CAMERON:  Your Honour please.

68HER HONOUR:  Thank you.

69ASSOCIATE:  They're just printing now.

70HER HONOUR:  Yes, that is fine, Hannan, no worries at all.  All right, I will get him to sign those, thank you very much.  Anything else that I need to attend to?

71MR CAMERON:  No, Your Honour.

72HER HONOUR:  All done?

73MR LEWIN:  If Your Honour pleases, nothing further.

74HER HONOUR:  Good luck, Mr Zepic, good luck with the baby.  I hope it all goes very well.  You have done a really good job for yourself, Mr Zepic, and I am sure you are - I am taking it you are a much happier man now than you were?

75OFFENDER:  Yes.

76HER HONOUR:  Just keep it up, all right?  Thank you very much.  I thank counsel for their assistance.

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