James Roy Kladaric v The Queen
[2017] VSCA 225
•29 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0105
| JAMES ROY KLADARIC | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined 'on the papers' |
| DATE OF JUDGMENT: | 29 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 225 |
| JUDGMENT APPEALED FROM: | [2017] VCC 661 (Judge Hicks) |
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CRIMINAL LAW – Leave to appeal – Sentence – Making threat to kill – Arson – Guilty pleas – Total effective sentence 3 years imprisonment – Non-parole period of 2 years – Whether manifestly excessive – Youth of offender – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Farrelly Legal |
| For the Respondent | No appearance | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 7 April 2017 the applicant pleaded guilty and was convicted of one charge of making a threat to kill and one charge of arson. On 10 April 2017 he was sentenced by a judge in the County Court as follows:[1]
[1]DPP v Kladaric [2017] VCC 661 (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Making Threat to Kill [s 20 CrimesAct 1958] | 10 years | 3 years, Aggregate | - |
2. | Arson [s 197(1) Crimes Act 1958] | 15 years | 3 years Aggregate | - |
| Total Effective Sentence: | 3 years |
| Non-Parole Period: | 2 years |
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 2 days |
| 6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of this offence after a trial would have been 3 years and 10 months imprisonment, with the applicant becoming eligible for parole after serving 2 years and 9 months of that sentence. | |
| Other relevant orders: Forensic sample order pursuant to s 464ZF of the Crimes Act 1958, Forfeiture Order for petrol container and yellow gas container | |
The applicant seeks leave to appeal his sentence on the following ground:
The total effective sentence and non‐parole period fixed are each manifestly excessive.
Particulars:
(a)The learned sentencing judge gave manifestly insufficient weight to the applicant’s youth and the importance of rehabilitation.
(b)The learned sentencing judge imposed a term of imprisonment in adult prison when detention in a Youth Justice Centre was the appropriate disposition.
(c)Detention in a Youth Justice Centre would satisfy the need to rehabilitate the applicant while satisfying the principles of specific deterrence, general deterrence, denunciation, and the protection of the community.
(d)The sentence imposed is more severe than that which is necessary to achieve the purposes for which it was imposed.
As is apparent from the proposed ground, and as is amplified in the written case, the contention which the applicant wishes to advance on appeal is that insufficient regard was paid by the sentencing judge to the applicant’s youth and that the sentence imposed should not have been in an adult prison but should have been in a youth justice centre.
The applicant’s offending behaviour was set out in a summary of prosecution opening dated 3 March 2017. Relevantly, that summary reads as follows:
The accused’s mother, Roza BRAHIMI, was a tenant of [address] Warrnambool, a Department of Health and Human Services home. She was in the process of relocating to Geelong. On Wednesday 28 September 2016 Roza returned to the property from Geelong around 9.00pm with her daughter (the accused’s sister), Adriana BRAHIMI and Adriana’s partner, Eddie CAUSHLLARI. Rosa found the accused asleep in a bedroom on a mattress on the floor.
The accused was woken by his mother and was upset that she had woken him and that she was moving. Roza, Adriana and Eddie were loading items into a moving truck for a number of hours. He was yelling ‘fuck you why are you doing all of this?’.
The accused left to get food and returned a short time later. He was walking in and out of bedrooms and Roza told the accused to stop carrying on and to help them loading the truck. The accused then told his mother to ‘go and get fucked’ and ‘I wish you were dead’. He walked into his room and out again. The accused continued to say ‘fuck you I’m going to kill you’. Roza was in fear because of these threats and the accused’s behaviour resulting from drug use. The accused then said ‘this is your head’ as he was punching walls throughout the house and kicking doors. This left holes in the doors and walls. Adriana asked her mother how she could deal with this and the accused walked in and stated ‘you want to see fucking damage I will show you fucking damage’. The accused has kicked Adriana’s bedroom door and walked towards her and said ‘do you want a go?’. Adriana walked off. (Charge 1 –Making threats to kill)
Roza got in her car to leave (leaving belongings behind in the house) and the accused followed her. He then stated ‘I’m going to burn the house down I’m going to burn everything in it and then see how you like it’. Adriana saw the accused saying something to their mother but couldn’t hear what it was. Adriana thought her mother looked scared of the accused.
Roza drove down the road and Adriana went to drive down in the truck with Eddie. As Adriana went to towards the truck she saw the accused come out the front door with a yellow container. Adriana heard him say ‘burn’ among other things she couldn’t hear. Adriana and Eddie drove away in one of the trucks and stopped down the road where Roza was waiting.
Roza returned to the house to get the second truck and drove it to the nearby depot. Adriana picked Roza up in the car and Eddie drove there in the truck. At this time they could see a glow coming from the direction of the property and smell smoke. Roza had no battery on her phone so she drove straight to the Police station because of the threat made by the accused. Adriana went to the house and saw that it was on fire and fire trucks were in attendance. Police were notified at 1.00am on 29 September 2016. (Charge 2 –Arson)
The applicant was born on 1 November 1996. He was 19 at the time of the offending. He was 20 at the time of sentence. He was not living at the Warrnambool property he set on fire at the time of the offending but he had been a frequent visitor. It is apparent from a psychological report by Elizabeth Warren, forensic psychologist, dated 6 March 2017, which was tendered on behalf of the applicant, that he considered the house to be his family home and that he associated it with his father who died when he was 17. Ms Warren indicates that whilst not suffering from pathological grief he was experiencing ongoing sadness at the loss of his father.
The first matter of significance mentioned by the sentencing judge in his sentencing reasons was the applicant’s age at the time of the offending and at the time of sentence.[2]
[2]Reasons [5].
The judge summarised the offending and indicated that he took into account in mitigation the applicant’s early pleas of guilty, what the judge considered to be genuine remorse, and the applicant’s youth. In relation to his youth the judge said: ‘[w]ell known sentencing principles relating to the sentencing of young offenders applies to you’.[3]
[3]Reasons [22].
The judge went on to indicate that there were several factors which lessened the weight to be given to the applicant’s youth. The first was the gravity of the offending. The second was the fact that the applicant had some relevant prior convictions including convictions for intentional damage to property and unlawful assault. The judge then indicated that it was the applicant’s subsequent behaviour since committing the offences which was, in the judge’s view, a matter of ‘considerable concern’. Details of the subsequent behaviour were set out in a document tendered on the plea. The judge summarised the position as follows:
Suffice to say, you were arrested on 13 October 2016 in respect of the matters before me and remanded for two days until 14 October 2016, where a contested bail application resulted in you being granted bail.
Approximately a week later, you failed to report on bail on 24 October 2016. You continued to fail to report on your bail conditions on several occasions.
On 7 November 2016, you were sentenced for various driving offences at the Magistrates’ Court at Warrnambool for a 12 month Community Correction Order in respect of the offending which occurred on 18 July 2016. As a condition of your Community Corrections Order, you were given community work of 120 hours. You completed none of that. You continued to breach the Community Correction Order by failing to notify of change of address, failed to perform community work on 22 and 23 November and 1, 8, 15 December, and you failed to undergo treatment and rehabilitation on 21 November. You failed to attend for supervision on 25 November and 2 December 2016.
In short, you made little or no progress on the Community Correction Order which you had been given.
On 28 December 2016, as a result of a domestic dispute, you got into an argument with your victim, smashed her phone, started kicking bins over and putting holes in plaster walls. At one stage you grabbed your victim by the throat. You also grabbed a metal pole and began knocking photo frames off the wall and smashing them. Your victim then left the premises. As she did so you were heard to use the words, ‘I’m going to burn your house to the ground’.
This all occurred within three months of you burning your mother’s premises.
On 28 December 2016 you were arrested and charged with a number of offences, including recklessly cause injury, intentionally causing criminal damage, theft, threat to destroy property, commit an indictable offence whilst on bail, contravene a conduct condition of bail, and breach a Community Correction Order.
As a result, at the Magistrates’ Court at Warrnambool on the 15 February 2017, in respect of those matters, you were sentenced to an overall effective sentence of four months’ imprisonment with 49 days declared by way of pre-sentence detention.
You appealed to this court and such appeal was set down to be heard at the same time as the plea now before me. Your counsel abandoned such appeal after it became apparent to him that you were not regarded as suitable to be a person to be held with the youth justice centre system.
In short compass, subsequent to the offences before me and within a relatively short period of time after the offences before me you committed a number of serious offences, including a threat to burn your partner’s house down.[4]
[4]Reasons [30]–[39].
The sentencing judge set out the applicant’s personal circumstances and went through the psychological report by Ms Warren, to which I previously referred, in some detail.
It is clear from Ms Warren’s report that substance abuse is the applicant’s principal problem and the principal cause of his offending. Ms Warren describes ‘poly substance use disorder’ as his ‘primary condition’. There is associated stress, depression, anxiety, paranoia and excessive anger. The applicant is of average intelligence. He has limited insight into the consequences of his drug abuse. As indicated earlier, he has ongoing sadness at the loss of his father but Ms Warren says this does not amount to pathological grief. Ms Warren observes:
He could be considered in the early stages of full remission from illicit drugs such as ice and cannabis, in a controlled environment. The likelihood of relapse is high given the nature of drug dependence but he does not have a history of treatment failure or failure from efforts to stop and it is possible this period of gaol induced abstinence will serve as helpful catalyst [sic].
Ms Warren expressed the opinion that a sentence in youth justice would be more beneficial to him than adult custody.
It is clear from the sentencing reasons that all of these aspects of Ms Warren’s report were taken into account by the sentencing judge.
The sentencing judge assessed the applicant’s prospects of rehabilitation as ‘cloudy’.[5]
[5]Reasons [55].
Notwithstanding the matters to which the judge referred, particularly the subsequent offending and other behaviour, the sentencing judge had the applicant assessed for a youth justice centre order. The assessment, undertaken at the Warrnambool County Court on 7 April 2017, found the applicant not to be a suitable person to be detained in a youth justice centre. The reasons for this conclusion were the severity of the offending; the fact the applicant was at the upper limit of the age range; the applicant’s current apprehension in adult prison where, it is said, ‘his experience there is a contra indication for youth justice centre suitability’; the fact that he was in adult prison for violent offending; his failure to comply with previous community based dispositions; his limited family support; and the fact that he was physically mature and robust. The report indicated that Ms Warren’s report had been taken into consideration and the conclusion had been reached, notwithstanding that report, that the applicant was not suitable.
In relation to the Youth Justice report the sentencing judge said, after summarising its contents:
Whilst not binding upon me as to an outcome, such report, in my opinion, highlights the concerns that I have as to your future prospects of rehabilitation.[6]
[6]Reasons [58].
After summarising the matters in mitigation and other relevant matters, including applicable sentencing principles, the judge imposed the sentences set out earlier.
In the written case filed on behalf of the applicant in support of the application for leave to appeal, reliance is placed upon the applicant’s youth and upon this Court’s decision in Azzopardi v The Queen.[7] Reliance is placed upon Ms Warren’s report and the opinion she expressed in relation to the desirability of a sentence in youth justice as opposed to adult jail.
[7](2011) 35 VR 43.
My conclusion is that leave to appeal must be refused.
The sentencing judge was fully cognisant of all of the matters relied upon by the applicant and, in my view, his analysis of their significance is impeccable. In my opinion the sentencing judge’s conclusion that detention in a youth justice centre was not appropriate in the circumstances was undoubtedly correct. Notwithstanding that conclusion and the other matters to which the sentencing judge referred, the applicant’s youth was still an important sentencing consideration and, in my view, the sentence imposed, given the seriousness of the offending, reflects appropriate mitigation by reason of that consideration.
Leave to appeal is refused.
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