DPP v Mirkovic

[2019] VCC 2219

No

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-19-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMON MIRKOVIC

---

JUDGE:

HIS HONOUR JUDGE RYAN

WHERE HELD:

Melbourne

DATE OF HEARING:

13 December 2019

DATE OF SENTENCE:

19 December 2019

CASE MAY BE CITED AS:

DPP v Mirkovic

MEDIUM NEUTRAL CITATION:

[2019] VCC 2219

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Aggravated burglary – Co-accused – Plea of guilty

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Burns & Ors [2019] VCC 1836 ;Boulton v The Queen [2014] VSCA 342

Sentence:      4 year Community Correction Order with conditions; 6AAA declaration: 3 years imprisonment with a non-parole period of 18 months imprisonment.

---

APPEARANCES:

Counsel

Solicitors

For the DPP

Mr N. Goodenough (For Plea)

Mr A. Sharp (For Sentence)

Solicitor for Office of Public Prosecutions

For the Accused

Mr D. Swan

Victoria Legal Aid

HIS HONOUR:

Damon Mirkovic on Friday, 13 December 2019, you pleaded guilty to indictment C18112051 containing, so far as you were concerned, one charge of aggravated burglary. Your three co-offenders, Gary Burns, Eric Chew and Kayne Phillips, were sentenced by me on 13 November 2019. (See [2019] VCC 1836)

The maximum penalty for aggravated burglary is 25 years’ imprisonment.

Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening. 

In summary, on the afternoon of Saturday, 18 August 2018, you were picked up by your co-offenders, Phillips and Chew, from your home in Lavington, New South Wales and went to Phillips’ mother’s home, which was located in North Albury. 

It was Burns’ birthday the following day, and earlier in the afternoon Phillips and Chew had attended at Burns’ residence to have a celebratory drink with him.

Burns remained at his residence and celebrated his forthcoming birthday with other friends.  Sometime in the early morning of 19 August 2018, Burns met up with you, Phillips and Chew in the rear shed at Phillips’ mother’s home, where you all consumed the drug Ice.  Chew came up with the idea to go to an address in London Road, Wodonga to steal drugs and cash from that place, as he believed it would be an easy target.  Chew knew the people who lived at the address in London Road and believed that they would have drugs and cash there.

You and your three co-offenders armed yourselves, with you taking a hammer.  You travelled to the address in London Road, Wodonga in a cream coloured Astra sedan and, upon arrival in London Road, you drove past the address several times prior to parking nearby.  You and your three co-offenders walked past the house and stopped and discussed whether you should continue with the intended crime. 

You all decided to continue on and then walked back to the house and up to the front door via the front steps to the veranda.  Chew led the way and approached the front door, opened the screen door and knocked.  Chew covered his face with a piece of clothing and knocked several more times until the victim answered the door.

The victim opened the door, thinking it was one of his sons coming home, but was confronted by Chew.  Chew said to his victim “hey motherfucker”, and the victim attempted to close the door, but before he could Chew shoved a baseball bat into the doorway and forced his way inside the house. 

A scuffle broke out between Chew and the victim.  Chew and the victim both fell to the floor with Chew on top of the victim.  At or about this time, the victim’s younger son was woken by the commotion and came out of his bedroom to observe Chew on top of his father.  The teenage boy screamed at Chew to get off his father and get out of the house.  Phillips entered the house armed with a hammer and waved it near the victim and his son to frighten them.  Unlike Chew and Phillips you did not enter the victim’s home.

Chew got off the victim and swung a baseball bat at him but missed.  Chew took a second swing at the victim and struck him to the left thigh.  As a result of the aborted entry, all four offenders ran from the house and drove back to Phillips’ mother’s home.

The victim had four closed circuit television cameras attached to the outside of his house.  One camera captured all four offenders walking up the stairs to the front door, and Chew opening the security door.  The security footage showed that your co-offender, Burns, was armed with a cricket bat.  The entire incident lasted less than two minutes.

Tendered as Exhibit B was the victim impact statement of Mr Schadendorf.  As at
19 November 2018, he was finding it difficult to sleep.  He expressed anger at what had happened and especially at your co-offender Chew who had been a guest in his house and an acquaintance of his sons.  Further, he was worried about his younger son going out at night and, while the injury to his leg had resolved he was still concerned about the injury that he had suffered to his left hand.

You, Mirkovic, were arrested on 22 August 2018 in Albury and were taken to your home in Lavington, where you voluntarily surrendered to investigators the clothing that you had worn during the aggravated burglary.  You participated in a record of interview, during which you made a complete confession and nominated each of your co-offenders, Burns, Chew and Phillips.  Further, you provided a written statement to investigators about the aggravated burglary, and the statement appeared in the hand-up briefs of your co-offenders and is in the depositional material.  You entered your plea at the earliest opportunity and are entitled to the benefits that flow from your plea being its utilitarian benefit and that in your case it is evidence of your remorse, which I accept.

You spent only a matter of hours in custody on the day of your arrest and accordingly you have no pre-sentence detention.  However, in your evidence on the plea those hours in custody were sufficient for you to reflect upon what you had done and the consequences that flowed from your actions to your family, yourself and the victim in that you felt disgusted by your actions.

Mr Goodenough of counsel, who appeared on behalf of the Crown, informed me that but for your assistance to the police, the informant in this prosecution was of the view that it would have been very unlikely that Burns and Phillips would have been apprehended for their offending.  Further, I was informed generally that the quality of the CCTV footage was poor and that whilst Chew could generally be picked out on the footage, when he was interviewed under caution, he made a “no comment” interview and so provided little assistance to the police investigation.

Accordingly, you are entitled to a substantial discount to the sentence that you might otherwise have received because of your assistance to authorities and the value of that assistance to the investigation into the aggravated burglary and the successful prosecution of everyone concerned in it.

At the time of the commission of your offence, you were 21 years of age and are presently 22 years.  You have no prior convictions and have no subsequent convictions.  The last matter places you in a different position to those I sentenced in November 2019. 

I will not go through the backgrounds of your co-offenders as they appear in my sentencing remarks of 13 November 2019.  Suffice to say, that each of your co-offenders had relevant prior convictions, and Burns and Phillips were somewhat older than you.  Although Chew was, at the relevant time, the same age as you, he had 30 convictions or findings of guilt from seven court appearances from December 2012 until January 2018.  He had six prior convictions for aggravated break and entering a dwelling in company, both in the Children’s Court and the Albury Local Court, and had been sentenced to terms of imprisonment in respect to his last two appearances for that kind of offence.

In addition, Chew had prior convictions for affray, robbery in company, possessing prohibited drugs, and being the subject of police pursuits.  Further, he was on parole at the time of the commission of the instant offending. 

In respect to your personal background, you were born in Wodonga and have one sibling, a sister who is aged 13 years.  After residing in Wodonga for three years, your family relocated to Melbourne and you commenced your schooling at Epping Primary School.  Following your maternal grandfather suffering a stroke, the family moved back to Wodonga in 2007 to assist with his recovery.  At this time, you would have been aged about 10 years.

Thereafter, your grandfather lived with your family and you shared a close and supportive relationship with him.  His death in 2016 had a profound impact upon you.

You have a loving and supportive family.  Your parents were in court during the course of your plea.  You were not exposed to any form of trauma or abuse during your childhood or adolescent years.

You attended Wodonga Primary School, Wodonga Middle College and Wodonga Senior Secondary School.  You left school at the commencement of Year 11 to pursue employment. 

You are no stranger to employment, as you commenced work while at school working for McDonald’s when you were 14 years of age.  After leaving school, you continued to work at McDonald’s, while also working part-time as a labourer.  You worked for 18 months as a pre-cast concreter for “Rock Work Pipes”.  In January 2018, you commenced as a truck driver with “STARTRACK” delivery service. 

During the course of your plea, you gave evidence, expressing remorse for your conduct and what appeared to be genuine concern for the victim of Chew’s assault.  Further, you were deeply concerned for the consequences that any term of imprisonment might have for your family and for your employment.  Your evidence was consistent with your letter to the Court tendered as Exhibit 4 on the plea and the emotions that you experienced while in the police cells.

You have a long-term partner to which you have a two year old child, Briella, and your partner is presently in the early stages of a second pregnancy.  You partner does not hold a driver’s licence nor is she employed.  I was informed that your partner suffers from anxiety and this seems to have some connection with her being unemployed.  You and your partner and young child are presently residing with your partner’s parents in Laguna, New South Wales and you are the sole bread winner for your young family.  You pay $150 board to your partner’s parents.

As your partner’s pregnancy advances she will become increasingly reliant on you for support that includes but is not limited to transporting her to her many medical appointments.

Accordingly, I am satisfied that worry about your partner and the progression of her pregnancy as well as being divorced from your daughter would weigh heavily on you were you to be sentenced to a period of imprisonment.

You have had some passing contact with drugs of dependence and, in particular, methylamphetamine.  You reported to your counsel that you have used methylamphetamine on no more than five or six occasions and only once since the commission of the instant offence when the situation that you face overwhelmed you.  You referred yourself to Gateway Health for treatment in respect to your drug abuse.  Your referral commenced on 16 January 2019, but your attendances did not commence until May this year, and you have had nine counselling sessions since then.

Tendered as Exhibit 3 on your plea was a letter from Gateway Health setting out your dealings with that organisation and the author of that document, Renee Gillespie, wrote that you have “developed relapse prevention strategies in counselling”.  Further,
Ms Gillespie noted that you have stable employment, a supportive network to act as protective factors, and that you understand the impact that drugs have on your life in all its aspects, namely upon yourself personally, your family and the community generally.

In respect of your employment, I was informed that you earn approximately $1,100 per week.  However, you have some $10,000 in debt, arising from pay day loans and credit cards.  These debts arose out of your inability to meet normal day to day expenses while living independently with your partner and young daughter and away from your partner’s parents.

I was informed that your supervisors at work have told you that you are likely to receive advancement at “STARTRACK” and that you have raised with them the possibility of a transfer to Melbourne.  Your superiors are content to transfer you to Melbourne should you require it.  I was informed that the purpose of your request was so that you would be divorced from any influences that might cause you to re-offend.

Tendered as Exhibit 2 were two references, one from your Fleet Supervisor and one from Amanda Eyers.  Both of your referees write as to your work ethic and your attitude to your young family.  It would appear that your arrest in respect to the instant offending has shocked you into the realisation of what is required of you as an employee and a father.

During the course of your evidence you swore that you play cricket and football for local clubs in the Albury/Wodonga area and to my mind this confirms your abstinence from drugs and your desire to be part of normal community life and is indicative of a desire to rehabilitate yourself.

Having made a statement against your co-offenders, you and your partner each received threats to your personal safety, and your partner was assaulted in the street on one occasion.  Whilst these threats seem to have subsided in the early part of this year, I have no doubt that you would be at risk while in prison, if not from those that you informed on, then from prisoners who regard those who assist authorities as “dogs”.

You are a youthful offender.  To my mind rehabilitation must play an important role in arriving at the appropriate sentencing disposition in your case.  You have no prior or subsequent convictions.  You live in a stable relationship and you are presently the father of one young child and will be the father of a second child in the foreseeable future.  You have always worked and earn a very modest wage, working for “STARTRACK”.  You have prospects of advancement in your present employment.  You have had what could only be described as limited contact with drugs of addiction, and voluntarily sought treatment in respect of your drug abuse.  You are currently drug-free.

Further, upon arrest, you made a complete confession to your role in the aggravated burglary and nominated each of your co-offenders and their role in that offending.  To my mind, your prospects of rehabilitation are excellent.  You have shown genuine remorse and assisted investigating authorities.

Mr Swan associate public defender who appeared on your behalf, acknowledged the objective seriousness of your offending.  However, he submitted that your personal circumstances are such that a Community Correction Order, either alone or in combination with a term of imprisonment, were the only appropriate dispositions in all the circumstances.  Mr Goodenough, on behalf of the crown submitted that a combination sentence involving a period of imprisonment was within the range of sentences available for your offending.

In light of the matters put to me I had you assessed for a Community Correction Order.  The Assessment report assessed you as a low risk of re-offending generally and found you suitable for a Community Correction Order.

In Boulton v The Queen [2014] VSCA 342 at [131], the court opined:

“It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”

I must take into account the sentences which were imposed upon your co-offenders.  Gary Burns received a sentence of three years and six months’ imprisonment with a non-parole period of 18 months.  Eric Chew received a sentence of four and a half years’ imprisonment with a non-parole period of two and half years. Kayne Phillips received a sentence of four years’ imprisonment with a minimum term of two years.  Each of your co-offenders had spent substantial periods of time by way of pre-sentence detention on remand, and Burns had been released on bail and was returned to prison by my Sentence. 

The principal of parity must be carefully considered when at arriving at an appropriate sentence in your case. 

It seems to me that your personal circumstances and antecedents, your cooperation with the police and its value to the successful prosecution of two offenders that might otherwise not have been charged, your prospects for rehabilitation and what I accept as genuine remorse as well as the potential risk to your safety while in prison, sets you apart from your co-offenders.

In your circumstances the sentencing principles of general deterrence, denunciation and just punishment have application to you, unlike your co-offenders however, specific deterrence has little or no role to play in the exercise of my sentencing discretion.  Will you please stand.

By this sentence, I must punish you, publicly denounce your conduct and deter others from committing this kind of crime.  Taking into account the circumstances of your offending and its effects, together with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I will impose a merciful sentence by convicting you and releasing you on a Community Correction Order for a period of four years with conditions:

(i)        that you be subject to supervision;

(ii)       that you perform 400 hours of unpaid community work; and

(iii)      that you undergo treatment and rehabilitation in respect to drug abuse.

Are you prepared to enter into such an order?

OFFENDER:  Yes, I am.

HIS HONOUR: Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have sentenced you to three years’ imprisonment with a minimum term of eighteen months’ imprisonment. My associate will now bring to you the documents that relate to the community correction order for your signature. Mr Swan, do you wish to approach the dock to assist your client.

MR SWAN:  Yes, thank you, Your Honour.

HIS HONOUR:  Once those documents are signed you may come out of the dock and sit behind your counsel.  However, I understand that there is an application for a forensic sample, is that so?

MR SHARP:  That is correct, Your Honour.

HIS HONOUR:  Yes.  Mr Swan, what is your attitude to this application?

MR SWAN:  Is that the application for a forensic sample, Your Honour?

HIS HONOUR:  It is.

MR SWAN:  It is by consent, Your Honour.  By consent.

HIS HONOUR:  Thank you.  Stand up please, Mr Mirkovic.  I have released you on a community correction order for a period of four years.

OFFENDER:  Yes,

HIS HONOUR:  Apart from the statutory conditions, I have placed upon the order further conditions, being that in the period of four years you must perform 400 hours unpaid community work.

OFFENDER:  Yes.

HIS HONOUR:  If you fail to comply with this order, the Secretary of the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work in accordance with the provisions of the Sentencing Act 1991. You must be under the supervision of a community correction officer for a period of four years. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. Now, understand this, I have imposed what I regard as a justifiable but merciful sentence. If you are so foolish as to breach this community corrections order by the commission of another offence, you will be dealt with for that offence and you will be brought back to me for breaching this order.

OFFENDER:  Yes.

HIS HONOUR:  Do not come back to me.

OFFENDER:  I will not be.  Thank you.

HIS HONOUR: You may remain standing for the time being. The Crown have made application for a forensic sample pursuant to s.464ZF(2) of the Crimes Act.  I have granted that order because of the seriousness of the circumstances of your offending warrant the order and that the order is by consent and that the granting of the order is in the public interest.  So, the next thing that I need to inform you is expressed in a ham-fisted sort of a way, so listen carefully but Mr Swan will explain it to you in the fullness of time.  You are obliged for the purposes of undergoing this procedure to report to the officer in charge of the Wodonga police station located at 100 Hovell Street during the period of four weeks commencing 28 days after today, so a period of 28 days passes and then time starts for you.  You have got four weeks to go to the officer in charge of the Wodonga police station for the purposes of having a buccal swab taken from your mouth.

OFFENDER:  Yes.

HIS HONOUR:  Do you understand?

OFFENDER:  Yes.

HIS HONOUR:  If you do not turn up and do not comply with this order, you breach this order and you come back to me.

OFFENDER:  Yes.

HIS HONOUR:  I need to inform you that if at the time of request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic sample to be conducted.  Do you understand?

OFFENDER:  Yes.

HIS HONOUR:  Now, counsel and yourself will be provided with copies of these documents for your records.  Sorry, I have forgotten the last page.  Sit down.  Merry Christmas.

OFFENDER:  Merry Christmas.

- - -