Director of Public Prosecutions v Zujo

[2018] VCC 317

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00398

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENAN ZUJO

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2018
DATE OF SENTENCE:	19 March 2018
CASE MAY BE CITED AS:	DPP v Zujo
MEDIUM NEUTRAL CITATION:	[2018] VCC 317

REASONS FOR SENTENCE
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Subject:         Criminal law – Sentencing – Sexual assault of a child under 16.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr C. Baker	Chester Metcalfe & Co

HER HONOUR: 

1Kenan Zujo, you have pleaded guilty before me to one charge of sexual assault of a child under the age of 16 and you also admitted your prior criminal history. 

2The offence is objectively serious and that is demonstrated by the ten years' imprisonment which is the maximum penalty that is prescribed by Parliament.

3You assaulted the victim, a 14 year old school boy, in the manner described in the opening read out by the learned prosecutor, Ms Bate, at the plea hearing and that is marked Exhibit 1.

4The context to the offending was that you were on a bus, the 902 bus from Doncaster Road and the victim had left his school and boarded that bus on Wednesday 11 October 2017.  The victim was in company with some other students from his school.  The bus must have been full because they were asked by the bus driver to move down to the back of the bus to make room for more passengers.

5It was when the victim and his friend, another male, was standing at the back in the aisle that they had some interaction with you.  The victim had his school backpack on his back and was holding on to a grab handle and he was chatting with his friends from school.

6You were seated at the rear of the bus and about two minutes after the group had boarded, you grabbed hold of the victim's bag handle and pulled him back towards you.  The victim, in his Video Audio Recorded Evidence statement (VARE) acknowledged the possibility he may have bumped you with his backpack.

7Be that as it may, that would not have justified your actions thereafter. 

8You started verbally harassing the victim, swearing at him and asking him inappropriate questions.  You then inappropriately took off your shoe and put your hand holding the shoe in the victim's face.

9His friend intervened and asked you what was your problem to which you responded "This guy's my problem".  Thereafter, there was further verbal interaction between yourself, the victim and his friend, that is particularised in the opening.

10You were asking further inappropriate questions about the boys race and religion and you were argumentative.  Another friend of the victim told you to leave him alone and that he was only in Year 8 and he called you a "fucking idiot". 

11You then grabbed the victim's buttocks on the outside of his shorts and your fingers went between his buttock cheeks and touched his anus and that constitutes the offence the subject of the charge, Charge 1, sexual assault of a child under the age of 16.

12Thereafter, the bus driver became aware of the commotion down the back of the bus.  He stopped the bus and you alighted.  The bus driver was ultimately advised as to what had happened by the victim and an incident report was lodged.  The victim called his father who came and picked him up from the bus stop and they went directly to the police station to report the matter and the victim's VARE was recorded.

13You were arrested the following day at about 5.25 pm at the Box Hill Shopping Centre.  A record of interview was conducted and you denied the offending.  You denied sexually assaulting the victim, stating "I did not touch this boy".

14The victim has been impacted upon by reason of your behaviour.  He was only aged 14 at the time and you were aged 26.  He felt very uncomfortable and frustrated, angry and violated by your mistreatment.  He was very frightened and he tried to act calmly so that the situation would not escalate any more than it had.  He was in shock and was upset by being verbally and physically assaulted for no reason.

15He unfortunately has been made fun of at school because people found out about this and that caused him further upset.  He is now
hyper-vigilant whenever he is out in social situations and he is very protective of others such as his mother, father, sister and girlfriend because of what happened to him.

16Your behaviour on this occasion was unacceptable.  Any person who travels on a bus, public transport, they are entitled to feel safe and not be subjected to such assaults.

17This charge does represent a type of behaviour that is reflected in the broad spectrum of behaviour that is represented in this charge. 

18I consider your offending is at the lower end of the scale of seriousness but it nonetheless is still serious offending. 

19There is a need to condemn your behaviour and general and specific deterrence are important sentencing considerations.

20Overall, I do accept that the behaviour was of relatively short duration and involved inappropriate sexual touching over clothes that was situational. I do not consider that you deliberately sought out this young man in order to commit this act for your own sexual gratification.    

21I accept that at around the time of the offending, you were being treated for some form of mood dysfunction and that you were also drinking heavily.  Your counsel, Mr Baker, stated that you informed him that you had drunk a bottle of wine. Obviously that would have impacted upon your judgment on the day. 

22There was no reliance on what is called the Verdins principles but I have taken into account, in a general sense, your background of mental instability. 
I am satisfied that you did understand what you did was wrong at the time. 

23You have a history of significant alcohol abuse and also there is some reference to you smoking cannabis in the material that was relied on in the plea hearing.  Your alcohol abuse had escalated following the breakdown of a four year relationship in 2015. 

24Your personal history is that you are the only child of your parent's relationship.  Your father sadly died as a consequence of the Bosnian War in 1992. 
Your mother repartnered and her partner, your stepfather, has twin sons to whom you are very close and you consider them to be like brothers.

25Your family travelled to Croatia as refugees and later migrated to Australia in around '93, '94.  Australian citizenship was granted in 1995.

26You enjoy a positive relationship with both your mother and step-father. 
They have been in court and are supportive of you and are prepared to have you back in their household when you are released.  They observed that your mood has settled and you are more clear-headed since being on remand and that you have been drug free and not affected by alcohol.

27You do have some formal education.  You completed Year 12 in Australia. 
You enrolled but did not complete two tertiary courses in business management and economics.  You have had success in obtaining employment in semi-skilled jobs in the retail/sales area and have worked with an industrial high pressure cleaning company.  Your plan is to seek full-time employment upon your release. 

28I did have some material from Dr Kojadinovic, psychiatrist, and also a clinical psychologist, Shelley Coleman, that detail for me your contact with the mental health system.

29Since 2015, there have been periods of time where you have had treatment both hospitalisation in the acute psychiatric ward at Maroondah Hospital and private treatment with Dr Kojadinovic and that largely arose because of problems with you being argumentative and acting in an inappropriate manner with your family and also demonstrating elevated mood. 

30Dr Kojadinovic saw you three times.  Over the period from June 2015, he prescribed mood stabilisers which you were on for a period of two months and you were last seen by him in early 2016.  He considered that your behaviour was in the context of elevated mood due to bipolar affective disorder.

31Shelley Coleman is your mother's treating psychologist and she said from her observations on 9 March 2016 that you were exhibiting characteristics of bipolar affective disorder and she queried whether you were having a psychotic episode.

32A more up to date assessment was provided from a clinical psychiatrist,
Dr Pandurangi, who saw you and prepared a report of 3 March 2018. 
He confirmed currently there was no mental health treatment being administered whilst you are on remand and he did not think that you were suffering any schizophrenia or psychotic type illness. 

33He could not find any evidence of bipolar mood disorder although he accepted that how you presented to Dr Kojadinovic did indicate some form of mood dysfunction.  He was not sure whether it was bipolar affective disorder. 

34I accept Dr Pandurangi's diagnosis that you do not meet the diagnosis of paedophilic disorder or any other paraphilic disorder and therefore do not propose to include as a condition of your Community Correction Order that I am about to impose that you be assessed and treated in respect to the Sex Offender's Treatment Program.

35In fixing the sentence, I have taken into account all mitigating factors that have been highlighted by Mr Baker.  I accept that you entered a plea of guilty at the earliest opportunity.  That plea has real utility – it spared the state the cost and inconvenience of a trial and importantly, it spared the complainant from being cross-examined at committal or trial which is important in the context of his case where the victim set out in his victim impact statement the difficulties he has had coping with the process.

36I consider your plea of guilty means that you have facilitated justice and you will receive a sentence discount accordingly.  I am also satisfied that the plea of guilty is a degree of remorse on your part.  I have had regard to the time that you have spent in custody whilst on remand – that is 158 days and that it is your first time spent in custody. 

37I have also had regard to the fact that you have a lack of relevant prior criminal history.  There is only one previous court appearance that was detailed for
24 May 2016 and of relevance, there is no previous sexual offending convictions.

38I noted that you were placed on a Community Correction Order for a period of one year with special conditions by the Ringwood Magistrates' Court in relation to a number of charges and I am told that that is the subject of contravention proceedings which are yet to be dealt with. 

39There is also an outstanding matter yet to be heard that occurred at the Eastland Shopping Centre on 21 March 2017 and concerns another charge of sexual assault.  The allegation is that you touched a girl inappropriately on her leg.  You have not admitted that offending and therefore it is not relevant in respect to sentence today.

40In sentencing you, I must impose just punishment.  From the nature of your offending and all the material that is before me, it is obvious that you need ongoing mental health treatment and assessment and also treatment and counselling for your alcohol problem.

41Alcohol was the major factor contributing to your offending behaviour on this occasion and on the basis of the expressed opinions from the two psychiatrists and psychologists that I have already referred to, I conclude that any future drug use or alcohol abuse would likely lead to a deterioration in your mental health.  So it is important that you get therapeutic support in the community to address that.

42That will ensure that you have the best prospects for your rehabilitation going forward and also provide the best protection for the community.

43I will be sentencing you to what is in effect the time served, already served in prison and, to follow, one year Community Correction Order with the conditions that I have already outlined.

44I will ask you to stand now at this stage, Mr Zujo. 

45In respect to the one charge of sexual assault of a child under 16, you will be convicted and sentence to 158 days imprisonment (which is equivalent to time served) to be followed by a Community Correction Order of 12 months' duration with supervision and the following special conditions that you be ordered to undertake treatment and rehabilitation for alcohol abuse and dependency and mental health assessment and treatment as directed.

46Prior to the imposition of the order, you must consent to the order being made. 
If you were to contravene such an order, that would be a fresh offence and you would be charged and the maximum penalty that is prescribed in respect to contravention is three months' imprisonment and you would further fall to be resentenced in respect to this offence and any offending, if there is fresh offending.

47The focus on your order is not to punish you for the offending but rather to offer you support in the community when you are released from prison. 
I consider that the time spent in custody already is sufficient punishment and that is the reason why I am not imposing any further hours of community work, do you understand that?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  All right.  You must address the cause of your offending, that is the drinking which leads to deterioration in your mental health.  So that is what this order is addressed to, all right?

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  All right.  Because I am concerned that I want to ensure that the progress you have been making whilst you are in protective custody in gaol is repeated outside when you are back home with your mum and your stepdad.  All right?

52OFFENDER:  It'll only benefit our family.

53HER HONOUR:  All right, well that is absolutely imperative because you are very fortunate that you have got them there to support you.  Not everyone who comes before the courts does so ‑ ‑ ‑

54OFFENDER:  I thank my parents ‑ ‑ ‑

55HER HONOUR:  ‑ ‑ ‑ need to appreciate that, all right?  Yes, so are you prepared to consent to such an order?

56OFFENDER:  Yes, Your Honour.  Yes, I am.

57HER HONOUR:  All right, the order will be made in those terms and I have signed the order.  I will get you to sign your copy shortly.  I just have to make a couple of declarations.

58I declare pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty
I would have sentenced you to nine months imprisonment to follow a CCO of 18 months on the same terms and I make the following declaration of
pre-sentence detention. 

59I declare that you have served 158 days pre-sentence detention and direct that that be entered into the records of the court which is effectively the imprisonment component of your sentence so the intention is you will be released today.

60OFFENDER:  Thank you, Your Honour.

61HER HONOUR:  Finally, sexual assault of a child under the age of 16 is a class 2 offence and such offence attracts a mandatory reporting of eight years under the Sex Offenders Registration Act 2004.  I make that order for registration and note the reporting period of eight years and shortly you will get notification of all of the obligations and responsibilities under that legislation, all right? 
Please take a seat.

62My associate and your counsel, Mr Baker, will approach you with all those documents for you to sign.  All right, I assume that he has got to go downstairs to be processed, does he?

63MR BAKER:  That is correct, Your Honour.

64HER HONOUR:  Yes, all right, but the intention is that he is released today.

65OFFENDER:  Thank you, Your Honour.

66HER HONOUR:  All right, thank you.  All the best for the future.

67OFFENDER:  Thank you, Your Honour.

68HER HONOUR:  All the best for mum and dad too. 

69OFFENDER:  Definitely.

70HER HONOUR:  Thank you.

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