DPP v Ivanovski (a pseudonym)

[2022] VCC 1606

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANKO IVANOVSKI (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF SENTENCE:	6 September 2022
CASE MAY BE CITED AS:	DPP v Ivanovski (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1606

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Imprisonment, Total Effective Sentence 3 years and 9 months. Non-parole period 2 years and 6 months. 15-year SOR.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	Mr M. Taylor
For the Accused	Mr L. Richter	Mr P. Lunt

HIS HONOUR:

1Branko Ivanovski[1], you have pleaded guilty to one charge of incest.  The facts of your offending are set out in Exhibit A, the summary of prosecution opening for plea.  I was informed by your counsel that the facts as set out in that document are agreed.  I sentence you on the basis of the facts set out in that document and incorporated into these reasons for sentence.

[1] A pseudonym.

2You have admitted a minor criminal history.  In my view, the matter that you have admitted is irrelevant to the sentencing considerations I have to take into account today.

3Your personal history is set out in a number of documents, primarily in the report of Gina Cidoni (Exhibit 2).

4You were born in Europe in August 1959 and came to Australia when you were 10 years of age. 

5You completed secondary school, a course in engineering and then underwent an automotive apprenticeship with GMH.  You worked as a car designer and then as some sort of global engineering processor up until 2002, when you started your own business building residential homes.  You retired in 2015.

6You have a number of serious health issues that exhibited themselves between 2005 and 2017.  Details are set out in the reports but in summary you suffered from perforated diverticulitis disease, you had hernia repairs and abdominal abscesses.  You had numerous operations which saw you bring an action, I think, against those who treated you initially.

7You have difficulty dealing with, Type 2 Diabetes, which you suffer from, and monitoring that has been problematic.  Those medical issues will make your time in custody more onerous for you.  Ms Cidoni in her report says:

8

Imprisonment is an onerous experience for many offenders.  For Mr Ivanovski this is magnified because of his mental and physical illness.  His depression and PTSD including low self-worth, lack of energy and motivation, psychological symptoms such as difficult breathing, agitation and avoidance and being triggered re-experience, a negative effect like a violent episode could exacerbate symptoms.

9What she is saying is, you could find yourself in situations in gaol that could exacerbate your conditions.

It is expected that because of his fragility he could suffer long-term consequences from being subjected to stress, deprivation and extremely atypical patterns of norms of living and interacting with others.  His distress tolerance is low.  He would find prison extremely stressful and there is a concern about the onset of a major depressive episode and risk of self-harm.

10So, she is there talking about the mental health issues that you suffer, primarily as a result of your physical issues over the years, have seen you with PTSD and with depression and anxiety, and they are factors which will make your time in custody more onerous for you.

11There is a victim impact statement filed in this case and I have referred to that in dealing with your counsel this morning.  But your victim says that you sexually assaulted her in her own childhood home where she should be more than safe from the world, and that you took advantage of a vulnerable sleeping child and violated her.  She trusted you to protect her and you did completely the opposite; you hurt her sexually and emotionally.  She is fearful of who to reach out to for help.  She shut herself away in a shell and kept quiet.  She had no adult in her home that she could trust to protect her.

12What you did to her impacted her mental health, her sense of security, her trust in others and her strength.  She says:

The last two years since going to the police have been the hardest [she has] had to experience since the assault itself.  It's broken me and made me feel extremely anxious and once again, I feel unsafe, and I am brought back to the way [she] felt when [she] was 13.  [She concludes] That no amount of time can change how I have been impacted by your actions.  I will never forget what you have done to me.

13I take the contents of the victim impact statement into account in sentencing you.

14A number of factors urged by Mr Richter I take into account in sentencing you.  Firstly, your plea of guilty.  That plea of guilty I take to exhibit some remorse for your conduct.  Significantly, you have spared the community and your victim the need to have a criminal trial.  She has not been cross-examined in the course of the process that brings us to today.

15The value of your plea of guilty is increased because of the effect that
COVID-19 has had upon our legal system.  You have further facilitated the course of justice.

16I also accept that COVID will affect your time in custody.  It has made life more difficult for prisoners and I take that into account, the lack of visits, the lack of courses, the lockdowns, and the like.

17I have referred to your physical health issues which will obviously make your time in custody more onerous for you, and your mental health issues, your PTSD, and your depression, all of which could be exacerbated whilst you are in custody.  And I accept that limbs 5 and 6 of Verdins have been enlivened in your case and I take that into account in sentencing you.

18I take into account your relatively good character; your prior conviction as I said is irrelevant.  You demonstrated yourself to be, before and after, a hardworking man and a dedicated father.  As I said to your counsel, I am at a loss to understand why you behaved in the way you did.  Some form of sexual aberration clearly was operating at the time.  However, you have demonstrated rehabilitation in the years that followed.

19With that in mind I take into account the delay that has occurred in this case.  It has been some 17 years since the offence occurred.  Although that is not particularly unusual in cases of incest.  Victims are often loath to come forward because of the family dynamic that makes disclosure terribly difficult, and it clearly existed in this case.

20It is significant that in that delay you have demonstrated rehabilitation.  You are now a grandfather.  You have proved yourself to be a hardworking man and you enjoy the support of the victim's mother.  I take into account your age and your history since your offending and your prospects of rehabilitation must be seen as good.

21However, as your counsel properly conceded, incest is a very serious offence.  General deterrence, just punishment and denunciation are the significant sentencing factors in your case.  Society must protect its children.  Your victim was, as she said, entitled to your protection, not your exploitation.  Incest is a very serious offence carrying a maximum penalty of 25 years.  However, I accept that your offence is a low-level example of that serious offence.

22That all being said, gaol is the only option for your offending.  I have had regard to what I see as all the mitigating factors and as I understand it, the current sentencing practices.  I have significantly reduced the sentence I would otherwise impose to reflect and recognise the factors in mitigation to which I have referred.

23Will you stand up please.

24On the one charge of incest, you are sentenced to be imprisoned for three years and nine months.

25I order that you serve two years and six months of that sentence before being eligible for parole.

26Pursuant to s6AAA of the Sentencing Act 1991 I indicated that but for your plea of guilty I would have imposed a term of imprisonment of six years with a non-parole period of four.

27You are registered under the Sex Offenders Registration Act for 15 years and you will be provided with, in due course, with a copy of your reporting obligations.

28Are there any other orders I need to make?

29MS BOLTON:  No, Your Honour.

30MR RICHTER:  No, Your Honour.

31HIS HONOUR:  All right, you can remove Mr Ivanovski and I will terminate the link.  Thank you counsel for your assistance.

32MS BOLTON:  Thank you, Your Honour.

33MR RICHTER:  As Your Honour pleases.

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