Director of Public Prosecutions v Zuzek

[2015] VCC 585

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00437

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN ZUZEK

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2015
DATE OF SENTENCE:	7 May 2015
CASE MAY BE CITED AS:	DPP v Zuzek
MEDIUM NEUTRAL CITATION:	[2015] VCC 585

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – attempted armed robbery – armed robbery – possess drug of dependence

Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Mills [1998] 4 VR 235; The Queen v Tsiamas & Kastanis (unreported, Court of Appeal Supreme Court of Victoria, No.25/26 of 1997, 21 May 1997)

Sentence:Convicted and ordered to be detained in a Youth Justice Centre for a period of 2 years

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Roper	Solicitors for the Office of Public Prosecutions
For the Accused	Mr G. Thomas	Greg Thomas Barrister and Solicitor

HIS HONOUR: 

1Mr Nathan Zuzek, who is 20 years of age and was born on 30 November 1994 and turns therefore 21 this November, pleaded guilty to Indictment F10220487 to three serious crimes, being two charges of attempted armed robbery, one of armed robbery and one of possess drug of dependence.  The serious nature of these offences is illustrated by the fact that Parliament, for the charge of robbery has imposed a maximum penalty of 25 years.  For the charge of attempted robbery, Parliament has imposed a maximum penalty of 20 years' imprisonment.  One can appreciate from that why those offences are so serious and why Parliament, at the behest of the community, has imposed such penalties.  These crimes are not tolerated in the community and are seen, obviously, as most serious offences. Indeed, but for life imprisonment which can be imposed for murder, this is the highest penalty imposed under the Crimes Act 1958 (Vic).

2The particular circumstances insofar as they relate to Mr Zuzek are somewhat concerning.  They relate in a way and emanate out of his history.  His history is demonstrated by a number of factors.  One factor, of course, is his criminal history sheet in which he has been before the Court from the age of 15.  He has been dealt with essentially and throughout that time, up until the most recent sentence, by the Children's Court.  He has been subject to a variety of sentences all designed to assist him and place him in a position where he does not commit offences.

3Unfortunately, on this particular day, with a combination of polysubstances, as best as I can understand it, heroin, Rivotril, Valium and alcohol, he was in such a position that within a period of some half an hour, he commits the three major offences.

4In his statement, he mentions that he has no memory of precisely these offences and that is quite obvious in the circumstances.  The manner in which he carried out these offences is also perhaps indicative of his state on that date.

5The first charge, as I said, involved an offence at 12:45AM on 20 January, an attempted armed robbery with the use of a box cutter.  As put by Mr Thomas, all of these crimes are perhaps indicative of the type of preparation, and were done in a manner whereby they were recorded on CCTV and, as I said, within a very short time of each other.

6The second charge is the armed robbery, when Mr Zuzek in fact obtained a sum of $90 and the third matter was a further attempted armed robbery, again with the use of a box cutter on this occasion, which occurred at 12:54AM that day.  A tourist, apparently, was in the premises and called the police.  Mr Zuzek was stalled by an attendant, indicating it was not possible to obtain funds and very shortly thereafter, he was apprehended by a police wagon which had been called to the premises.

7Having been so apprehended, Mr Zuzek was then arrested.  He willingly gave up the box cutter that he had used or attempted to use, and also a small snap lock bag, which contained cannabis and makes up the final charge of possess drug of dependence.  The circumstances in regard to that are such that it warrants only a penalty of five penalty units because it is not, and it is accepted, was not for a trafficking purpose.

8As I said, Mr Zuzek was cooperative.  The plea of guilty has been indicated at the earliest possible time, and indeed, in my experience, a person who is charged in January of this year and here he is on 7 May before this Court, being dealt with, one cannot really get justice operating any quicker.

9The learned prosecutor stressed to the Court it is important to remember that we are dealing with very serious offences.  However, we are also dealing with a young man who is still defined under the Sentencing Act 1991 (Vic) as a young offender.

10Insofar as the plea of Mr Thomas was concerned, tendered as Exhibit 1 was the written submission for which I thank him, that was tendered overnight.  Essentially, he was at pains to describe the circumstances of the matter to relate those to the background of his client.  That background being such that he had lived for some time in a transitory state.  Living on the street in circumstances where he was and has been both afflicted with drugs and also trying to deal with various mental issues.

11Mr Thomas stressed the full admissions that had been made, and the remorse that was expressed immediately, and is demonstrated by the early plea.  The fact is, a person who pleads guilty at the earliest opportunity, and as I said, there could be no earlier in this case, is entitled to an appropriate discount for which I accept.  He also, insofar as the offences themselves, pointed to the quite obvious lack of preparation, albeit I point out the weapon, but all of them happened, as was put to me, within about ten to 15 minutes of each other.

12Insofar as his personal attributes, Mr Zuzek essentially, as I said, has been homeless since 15.  He completed Year 9 in education and currently is seeking to improve that by the facilities offered at Malmsbury.  Tendered on his behalf as Exhibit 1 was the psychological assessment made by Ms Cidoni on 28 April of this year.  It is a very sad read that now a man, a person of such a young age, has had such difficulty in his life.  As I said, the night is perhaps slightly unclear to him based upon the fact that as he recalled to the psychologist, he had used heroin, ingested five Valium tablets and seven Rivotril pills.  As I said, no wonder he could only remember small bits of the night.

13The background history is of early difficulties.  Those difficulties both of intellectual and a mental state are such that led to his homelessness.  Mr Zuzek has two daughters.  One of whom is being cared for by his mother.  He has had some particular health problems since birth that he has had to deal with and I note on p.4, those matters are detailed.  He has also been diagnosed with ADHD and Dyslexia from an early age.  He has had treatment in regard to those for some time and as I say, he unfortunately has been subjected to polysubstance abuse for some time as well.

14Insofar as his psychological testing is concerned, there are, as indicated, ongoing problems of a psychological and social issues.  Problems of conflict with authority and rebelliousness.  However, noting the instability of his upbringing and the problems, it was the view of the psychologist that there is opportunities for him provided he is prepared to take them.  As she said, he has acknowledged the wrongfulness of his actions and is able to consider the impact upon his victims and did so in his discussion with her.

15I should point out that there has been no victim impact statement filed. There was an attempt by the prosecution to obtain those, however they were not forthcoming.

16It is suggested that imprisonment as such would be very difficult for him to handle because of his current naivety, vulnerability and impressionability.  As to his rehabilitation, it is clear Ms Cidoni was of the view that he is in need of stable housing upon release.  He needs to pursue both mental and substance abuse treatment, while in detention in the hope of supporting him when he is released.

17If I might say so, perhaps the most positive material that was tendered was Exhibit 2, and that is the report of David McKay from the Malmsbury campus of Parkville College.  As expressed by Mr Zuzek himself under oath, he is, at this stage, trying to improve himself and trying to improve his education.  It would appear from this statement of David McKay that Nathan has attended every educational class available to him and has taken part in these classes in a very highly respectful and enthusiastic manner.  He always comes to class with a positive attitude and is willing to participate in class discussions.  The teachers are optimistic in regard to his rehabilitative prosects because of the exemplary conduct shown, his high work ethic, his outstanding attitude and admired perseverance while attending Parkville College.

18Having read that, I asked Mr Thomas to call Mr Zuzek.  Mr Zuzek stressed that he was enjoying his education.  I expressed to him the pretty clear and blunt facts in his life.  He tells me, as does his caseworker, Ms Morph, who is in Court and I thank you for your assistance, that you do understand the position in your life you are in at the moment.  I want to stress it again.  When you come out after the detention I am about to give you, there will not be any further chances for you.

19Given the propositions put and the submission of the learned prosecutor in this matter, that a term of detention, despite the seriousness of these offences was possible, a report was tendered to me, which I understand that the Department of Human Services accept because of its currency, that is currency within the last three months, this being the report that was tendered before Her Honour Magistrate Popovic, who pronounced sentence upon Mr Zuzek in March of this year, and indeed that is the reason why he is currently serving a period of detention.

20As to the suitability for such an order of which I am required to look to under s.32 of the Sentencing Act, the proposition put was that Mr Zuzek was suitable for such a disposition, and that determination was made by Mr Hayden Butcher, Senior Court Advice Officer.  The Department was of the view that if the Court considered that incarceration was the only option, that Mr Zuzek was a suitable candidate for a Youth Justice order.

21When Courts have to make a determination such as this, they are placed in a very difficult position.  We have before the Court a young man with a difficult history.  A person who, prior to the determination in March by Magistrate Popovic, had never been incarcerated before.  A young man who, as set out in Exhibit 1, has had particular psychological difficulties and difficult social problems.  Mr Thomas relied upon, as he said, the principles set out in the case of R v Mills [1998] 4 VR 235. These principles are paramount in this Court's determination and indeed reflect the community views.

22It has been remarked on many, many occasions particularly by the Court of Appeal that if one can take some steps at this stage, trying to assist the young offender, that is very much in the interests of the community.  There is no person, certainly no Judge, who likes sentencing young men to detention or imprisonment.  There are, however, some offences where such a sentence cannot be avoided.  When a Court is faced with offences that Mr Zuzek has committed, as I said, some of the most serious offences in the Crimes Act, and they are committed in such a nature upon persons carrying out their work, then there is no alternative.

23The real issue is, does a Court, because of the serious nature of these crimes, the need for a sentence of deterrence, does a Court place someone such as Mr Zuzek in an adult gaol by way of imprisonment or incarcerate him by way of a term of detention, as provided for under s.32 of the Sentencing Act.  These principles are competing, in a way, and were spoken of in The Queen v Tsiamas & Kastanis, which is an unreported determination of the Court of Appeal of the Supreme Court of Victoria, No.25/26 of 1997, determination given on 21 May 1997.

24Albeit a young offender under the Sentencing Act, you have, as I have said, Mr Zuzek, pleaded guilty to very serious offences. The reports that have been tendered indicate that you are suitable for a determination under s.32 of the Sentencing Act.  You are, because of the Sentencing Act, defined as a young offender. I take into account the submission of the learned prosecutor, which I accept as very professional in the circumstances and I have, indeed, determined considering the obligations that I am required to consider under s.32(1)(a) and (b) and (2) that in the circumstances of this case, it is appropriate to make an order to place you in a Youth Justice Centre.

25While it does not appear that you have been uncooperative in any degree in the past, it is, and should be made clear to you, that there are provisions should you misbehave after these matters for you to be placed in an imprisonment environment.  You should be aware of that.  That is not my intention but it could happen.  However, I am satisfied from your sworn evidence and the excellent reference you have had from the teachers that it is your intention to try and change your life and I hope you are able to do it.

26Insofar as the two charges of attempted armed robbery, and the one charge of armed robbery, on those three charges on the Indictment, you will be convicted of those matters and detained in a Youth Justice Centre for a period of two years. Each of those sentences will begin today. As I understand the position, they will be served concurrently with the sentence that you are currently serving and I will make an order pursuant to s.35 of the Sentencing Act that the 43 days that you have served to date be deemed to be a period of detention already served and that a record of such declaration be recorded in the records of this Court.

27Insofar as the charge of possess drug of dependence, I will order that you be convicted of that matter as well and that a fine of one penalty unit be imposed and I will grant a stay in regard to that of 12 months.

28Insofar as the provisions of s.6AAA of the Sentencing Act, to the extent that I can comply with the requirements of Parliament, all I can say is that had you not pleaded guilty, I would have seriously had to consider whether to impose a Youth Justice Centre order.  It seems to me that I cannot take the compliance of that provision any further in these matters.

29Mr Thomas, I have made some comments about your client's future.  Can I rely on you to stress to him that there will not be any more chances.

30MR THOMAS:  I will, Your Honour.

31HIS HONOUR:  Especially if he commits offences of this serious nature.

32MR THOMAS:  I will speak with him about that, Your Honour.

33HIS HONOUR:  Mr Prosecutor, is there any other matters that I need to attend to?  I think I have signed the disposal order?

34MR ROPER:  Yes, Your Honour.  I was just concerned with the 6AAA declaration, it does not in any way invalidate the sentence anyway.

35HIS HONOUR:  No, I know.  So by coincidence, I have had a request, someone is looking at them all and said something very similar they are interested in why I would say that.

36MR ROPER:  I think it is clear to me and Mr Thomas why.

37HIS HONOUR:  Yes, exactly.  So keep up with that education.  It is so important.  If you can just get through and finish your Year 12, then go on.  You are obviously intelligent enough to do it and stay off the drugs, all right?

38OFFENDER:  No worries.

39HIS HONOUR:  All right?

40OFFENDER:  Yes.

41HIS HONOUR:  Good luck.  Thank you officer.

‑ ‑ ‑