DPP v Smiljanic

[2020] VCC 495

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00101

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAIN SMILJANIC

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF SENTENCE:	22 April 2020
CASE MAY BE CITED AS:	DPP v Smiljanic
MEDIUM NEUTRAL CITATION:	[2020] VCC 495

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms J. McGarvie	Sarah Pratt & Associates

HIS HONOUR: 

1Kain Smiljanic, on 24 June 2015, a County Court judge sentenced you to a term of imprisonment of four years and three months with a minimum non-parole period of two years and five months.  The sentences were imposed for the crime of reckless conduct endangering life and being a prohibited person in possession of a firearm.

2In broad terms, the offences involved you shooting a sawn-off rifle three times at a truck driver, and in the vicinity of a service station on the Melbourne Road in North Geelong. 

3I commence by reference to that prior matter because you were on parole when you committed the two offences which you have pleaded guilty to before me.  That is, you have pleaded guilty on 17 April 2020. 

4The two offences were, first, a relatively new offence of discharging a firearm, discharging a shot into a premises with reckless disregard to the safety of any person.  This crime has a maximum term of 15 years' imprisonment. 

5The second charge was being a prohibited person in possession of a firearm.  The maximum term for that is 10 years' imprisonment. 

6In respect of the earlier sentence, you were released on parole on 6 June 2018.  It seems you did well enough early in your parole.  You were in a stable relationship, eventually moved in with your partner.  You gained work in and were playing football.

7However, by early 2019, you were again using drugs and associating with other drug users and criminals.  One of those was a Travis Kelly.  He was an older man in his early 30s.  He, too, had served a lengthy sentence of imprisonment and he had been in the community at this time for about 18 months.

8On 6 March 2019, you argued with Kelly.  Your text messages to him and from him reveal threats.  On the morning of 7 March 2019, you decided to escalate the argument to a frightening and dangerous level.  You, and an associate who you will not name, drove in your car to Kelly's home in Bell Park.  Kelly lived there with his then-girlfriend and her young son. 

9You and other man had a firearm.  The shots were fired into, or at Kelly's home.  They were .22 millimetre long arm calibre bullets.  One shot penetrated the boot of a car in Kelly's driveway.  The second bullet penetrated the front bedroom window damaging the wall and lodging inside a walk-in robe.

10It is unclear who of the two of you in your car fired the gun.  You instructed your lawyers that you drove your car and the other man fired the gun.  There is no evidence one way or the other to allow any conclusion to be properly drawn.  In the end, it does not matter as the case you have pleaded guilty to, alleges you committed the offence of discharging the shot into the premises on the basis that you are complicit in the crime.  That is, equally responsible, whether you fired the gun or not.   

11The whole episode had the added aspect of utter dangerousness because, having heard the shots fired at his house, Kelly grabbed his loaded semi-automatic handgun and ran into the street, firing it at you as you escaped in your Commodore. 

12Kelly pleaded guilty to reckless conduct endangering life and being a prohibited person in possession of a firearm.  On 29 November 2019, he was sentenced by another County Court judge to five years with a minimum of three years.  I am told he has recently lodged an appeal out of time. 

13After the shooting, you and Kelly exchanged further aggressive text messages.  Investigations reveal you also gave a box of ammunition to your associate to hide.  A search of your address located a 12 gauge under and over barrel of a firearm and the wooden stock and grip of a firearm. 

14The firearm that was used in the shooting, together with the parts of the firearm (indistinct) at your address were (indistinct) together as the basis for the second charge to which you have pleaded guilty.  It was being a prohibited person in possession of firearms.  The maximum term for that offence, as I have said, is 10 years.  It is noted you were sentenced to that offence as well in the earlier shooting incident in 2014. 

15The offence of discharging a shot into premises carries, as I have outlined, a maximum term of 15 years.  That is, significantly more than the offence of reckless conduct endangering life to which Kelly pleaded guilty. 

16It is an offence recently inserted into the Firearms Act. It was operative for about a year before your offending. In the second-reading speech introducing the (indistinct) into the Firearms Act, the Minister for Police stated that the new offence was in response to,

'An increase in drive-by shootings.  It was' - the Minister went on to say - 'a response to the fears and risks created by firearms being used in public streets.'

17The great danger of shooting at a house with a car is self-evident.  The occupants of the house are imperilled.  Risks are created for those in the vicinity which maybe as it was here, those in an ordinary suburban street at 10 in the morning.  This lethal and (indistinct words) is very serious criminality.  Also these offences provoke like-responses from other criminals which was the import of the text messages that were (indistinct words.)

18The immediate response here was also a shooting, by Kelly, at the car as it drove off down the quiet suburban street.  Thus, if the substantial maximum term and what is required to commit this crime, this is a very serious crime.  In examining all the circumstances of your conduct in committing this grave crime, I am of the view that it is a serious example of the offence. 

19You were enraged at some earlier perceived conduct that took place at your mother's house.  You made threats by text, then you organised a co-accused and a firearm.  You had time to reconsider.  It was not a spontaneous crime.  It was ill-considered, that is clear enough. 

20The fact that you committed the offence while wearing an ankle-bracelet that identified your location reveals how little you through this through.  It reveals again, that without much provoking, you turn to firearms and shoot them in public in order to frighten or at least in reckless disregard for the safety of any person.

21Accordingly, what was said by your counsel to be a lack of sophistication, also reveals how dangerous you can be, because it mattered not the likely outcome of your (indistinct).

22The fact the offending was in broad daylight and thus the occupants are likely to be up and moving in the house and members of the public moving on the street adds to the seriousness. 

23Obviously committing the offence while on parole is a matter that brings into play the Sentencing Act provisions relating to cumulation, thus I will not double-count this matter, but it is a circumstance that reveals the very guarded prospects you have and the importance of protection of the community from you.  It does add to the overall seriousness of your crime and especially your obviously high moral culpability.

24As to your personal circumstances, you are still a young man at 25.  You were 24 at the time.  As mentioned more than once, you were sentenced for like-crimes in June of 2015.  Prior to that in March 2014, you were placed on a 12 month community corrections order for amongst other matters, making threats to kill, and possession of an unregistered handgun. 

25Subsequent to the County Court sentence of June 2015, you went before the Magistrates' Court for offences including aggravated burglary and possession of a prohibited weapon and the breach of the community corrections order.  The sentence was 12 months, partly concurrent with the new non-parole period fixed at three years, up from two years and five months as best as I can read it.

26On your arrest for these offences, your parole was cancelled and you are serving a sentence now.  I am told that the sentence will expire on 14 September 2020 subject to any further days credit due to the COVID-19 crisis.

27I will return to what you have done while in custody, both before and subsequent to this offending.  The sad truth is that save for about nine months, you have been in custody since you were 19 years old, with more time to come.

28You were raised by your mother who remains supportive.  Her brother, your uncle was a father-figure in your early years.  Your mother re-partnered and you have two step-brothers who are important to you.  You moved to live with your uncle from about the age of 16, unfortunately he introduced you to methylamphetamines.  You were working in his plastering business for about a year or so.  Your use of methamphetamines and other drugs was rampant around the age of 17 to 19 until you were gaoled. 

29While in prison on remand for the earlier offending, you underwent counselling and drug treatment.  You ceased when you first to Loddon and then to Dhurringile Prisons.  However, while there, you returned to playing football with success.  You had been a good local junior footballer in the Geelong area before being imprisoned. 

30Upon release on parole you went to live and work with your father.  It did not work out and after three months you moved to Corio.  You reconnected with a young woman.  She was a good influence.  You were able to secure work with a firm installing temporary fencing.  You returned to play football and, impressed those at the local club.  However, your partner's grandfather died in January 2019 and you did not cope.  The relationship faltered and you resumed using ice.  Your partner would not have you in the house and you went to live with your mother.  You were using drugs and associating with drug users.  You gave up football and attending church. 

31Since your return to prison, you have embarked on group drug counselling programs and also one-on-one counselling.  The letters from the Caraniche Drug and Alcohol Services, indicates your motivation and your growing insight.  You played football again in the local competitions and plan to do so again for 2020.  The current COVID-19 pandemic means that that will not occur. 

32Indeed, your regular visits from your mother, grandmother, step-brothers, have now been stopped.  Prison is harder because of the current health crisis.  Also you are anxious because of the poor health of your grandmother.   I have factored those matters into the equation.

33At your age, your rehabilitation is, of course not abandoned, but overall your prospects are guarded at best.  The support of your mother and your commitment to counselling are important indicators that you wish to do well and maybe able to do so, but it will be a long road back for you. 

34What must be given prominence above your rehabilitation is the need for deterrence of you and others, who may be minded to use guns in furtherance of disputes amongst criminals, have to understand that if you do use guns with reckless disregard to the dangers created, then long prison terms await.

35I must also give weight to protection of the community from you by incapacitation achieved by imprisonment.  Brazen and dangerous conduct must be denounced, not just in these words, but in practical terms by the punishment of the grave crimes you committed. 

36Possession of a firearm and parts of a firearm are also serious offending, particularly given your history.  However, you will not be double-punished because the main firearm aspect of Charge 2 is a use of a firearm to shoot at Kelly's house.  It has become clear that the ammunition that you gave to your associate, is not part of Charge 2. 

37Though Kelly has been dealt with for a different crime and is not on the same indictment with you, his offending and his sentence is completely relevant.  There must be some sense of proportionality.  He is older by seven or so years and has prior offences involving (indistinct) and drugs.  I have read the sentencing reasons of the County Court judge who imposed the total effective sentence of five years with a minimum of three, on Mr Kelly. 

38The prosecution contended that you, as the initiator of the use of the firearms, committed more serious offending than Kelly who retaliated.  Your counsel's endeavour to contend that Kelly's conduct in shooting down the street at your escaping car was more serious offending was bravely put, but in my view, both are serious examples of the different, but similar, crimes committed by each of you. 

39Your history of using firearms in the way you did in the past means that even though you were in your mid-20s and he in his early 30s, your circumstances are no less concerning than Kelly's.  Your offending on 7 March 2019 is at least as serious and in my view, more so than that of Kelly's.  I am of the view that to the criminal standard, that this is the position; that is, your offending is more serious than Kelly's. 

40Parity insofar as it apply to you is not about mathematical precision.  It is a factor to be considered in the overall synthesis. 

41Your plea of guilty is of value.  I adopt what J Dixon J has said in the matter of The Queen and Bourke, a sentencing matter in the Supreme Court , regarding the value of a plea of guilty in the context of the COVID-19 crisis where jury trials are currently suspended. 

42I consider your plea of guilty and what I have discerned from your mother's letter, that you understand that you are at a critical point in your life.  You have taken responsibility for this crime and in that sense, your plea of guilty is evidence of some remorse. 

43As required by the Statute, that is, the Sentencing Act, I will endeavour to establish conditions to facilitate your (indistinct).  The only tool I have is to establish another period of potential parole.  Whether and when you are released on parole is for others, not me.  My sentence is fixed in the knowledge that you may have to do every day of the head sentence. 

44The practical operation of the Sentencing Act and your counsel's concessions means that your sentence will be cumulative upon your current unexpired sentence.  There are no reasons whether by an exceptional or compelling ones to order otherwise.  However, I do not overlook that you have been in custody since 7 March 2019 and none of that time can be counted as part of this sentence. 

45Doing the best I can, in all the circumstances, I impose the following sentences for each of these charges. 

46Charge 1, you are sentenced to a term of imprisonment of five years and three months;

47On Charge 2, you are sentenced to a term of imprisonment of two years.  I order that nine months of the sentence imposed on Charge 2 be cumulative upon the sentence imposed on Charge 1. 

48That gives a total effective sentence of six years and I order that you serve four years before being eligible for parole. 

49The sentence that I have just imposed will be cumulative upon the sentence that you are currently undergoing.  Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of eight years with a minimum of six. 

50Are there any other orders required?

51MR MOORE:  No, Your Honour.

52MS MCGARVIE:  No, Your Honour.

53HIS HONOUR:  Thank you.  Mr Smiljanic, there is no capacity for communications that I can easily achieve as we did on the last occasion with your lawyers, so we will end the link to the prison.  Your lawyers will be in touch with you as soon as possible in the current circumstances.  Thank you.

54Ms McKellar, can you end the link to the prison?

55TIPSTAFF:  Yes, Your Honour.

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