R v Andreevski
[2010] VSC 618
•9 December 2010
| IN THE SUPREME COURT OF VICTORIA | (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2009 1670
S CR 2009 0004
S CR 2009 1663
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIKOLA ANDREEVSKI JC JOHN RAY GARCIA |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August – 9 September, 18 October, 3 & 8 November 2010 | |
DATE OF SENTENCE: | 9 December 2010 | |
CASE MAY BE CITED AS: | R v Andreevski & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 618 | |
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CRIMINAL LAW – Manslaughter – Cause serious injury recklessly – Cause Injury Recklessly - Affray – Youthful offenders – Circumstances of offending – Hierarchy of offending - Principle of specific deterrence – Principle of general deterrence – Genuine remorse – Good prospects of rehabilitation - Longer than usual parole period – Sentencing Act 1991 (Vic) - R v Verdins, Buckley & Vo (2007) 16 VR 269 – R v Zander [2009] VSCA 10 – R v Wise [2007] VSCA 266 – R v Johnstone [2007] VSCA 193.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Ms D. Piekusis | Office of Public Prosecutions |
| For the Accused Andreevski | Mr P. Kilduff | Robert Stary Lawyers |
| For the Accused JC | Mr W. Stuart | Galbally & O’Bryan |
| For the Accused Garcia | Mr J. Desmond | Peter Clarebrough & Associates |
HIS HONOUR:
We come now to the end of the involvement of the trial division of this Court in these matters. People have rights of appeal and they are perfectly entitled to exercise those. It just means in relation to appeals that are brought, the process goes on but we do conduct the system that seeks insofar as it can to be fair from the point of view of everyone. I understand the tension that exists for victims but I also understand how significant any term of imprisonment will be for this group, as with this entire group of young men.
One man in this series of events has been sentenced to be imprisoned for 22 years. That is all you really need to know about it in one sense.
On 8 September 2010 you were each found guilty by a jury of the crime of manslaughter. In the same set of verdicts, you JC, were found guilty of causing serious injury recklessly and you, Andreevski and Garcia, were found guilty of causing injury recklessly. Both of Andreevski and JC had pleaded guilty to the charge of affray on arraignment and are therefore convicted of that offence and you, Garcia, were found guilty of that charge by the jury.
Background of offending
The circumstances leading up to the fight at Diggers Rest Recreational Reserve on Sunday 8 February 2009 have been canvassed before.[1]
[1]See R v Smith [2009] VSC and R v Vucak & Ors [2010] VSC.
They began the week prior to the attack. During that week, Ante Vucak, then 18, contacted the deceased's younger brother, Kyle, for the purpose of arranging a fight, such fight was apparently in retaliation for an alleged attack committed by Kyle Nunan and others on a young male in Sunbury the previous week. Prior to that, Ante Vucak and Kyle Nunan were not known to each other.
Kyle Nunan’s evidence was that Vucak understood he was 16 years old and he initiated a fight on the basis that Kyle Nunan was said to have been picking on a younger man, ostensibly Vucak’s friend.
Vucak and Kyle agreed on MSN to take part in a fight at Diggers Rest Skate Park that coming Sunday. On Friday 6 February 2009, Kyle Nunan received a telephone call from an unknown male confirming the location and time of the fight. In the days leading up to that Sunday, Kyle Nunan had told several others about the fight, including his brother, Nathan Roberts-Nunan, his brother's friend, Stephen Thorneycroft and some of his own friends.
In the days leading up to Sunday 8 February, Ante Vucak contacted several other co-accused in the matter and told them about the fight which had been organised.
On the afternoon of Sunday 8 February, Vucak began gathering a group to attend the fight. There had been discussions among young men in and around St Albans during the week. It was put to me on the plea of your co-accused that there had been substantial traffic on the internet.
A group met, on instructions, at a house in Acfold Court, St Albans. That was the home of Timothy Lutze, also known as Timothy Cooper. Nathan Smith was living at that address, along with you, Garcia, as well as Lutze’s mother, his sister and his girlfriend. Other young men came to the premises; they included Joseph Ferraro, Darko Jozic, Jovan Ogrizovic, Mladen Mrnjaus, Tomislav Stevanja, Marco Zizic, Tomislav Panic and Anthony Vodanovic in addition to you JC and you Andreevski.
At the premises, machetes, baseball bats, tyre levers, metal poles and tool handles were assembled and were at some stage, laid out on the driveway. The response to the challenge administered to Vucak was obviously to go armed. At least some of your co-accused admitted knowledge of weapons.
Lutze at some stage placed a metal baseball bat and machete in the boot of his car and assisted Vucak in preparing two petrol bombs, commonly known as Molotov cocktails. On their account, weapons were distributed. Nathan Smith took with him two boning knives he used in his employment.
The Offence
The group of young men set off in three cars, Lutze drove his car and took Smith, you JC and Garcia, in addition to Ogrizovic, who has previously pleaded guilty to the charges laid against him. Ferraro drove Vodanovic, Mrnjaus and you, Nikola Andreevski. Jozic took Zizic, Vucak, Panic and Stevanja. The group, therefore, numbered 14 young men. I note, as I have before, that amongst that number, some of you were friends with one another, some were acquaintances and some, when compared with each other, were just complete strangers.
The three cars drove up the Calder Highway until they reached the BP Service Station at Calder Park. There, Vucak had arranged to take delivery of a small sword from a man named Branislav Karula. The sword was given to you, John Garcia, for the apparent purpose of being taken to and used in the fight. From the time the entire group left the BP Service Station, it was clear there was a serious enterprise, involving a total of 14 armed young men underway. The group drove in convoy to Ingot Road, Diggers Rest, near the Diggers Rest Recreational Reserve, which contains the Diggers Rest Skate Park, arriving there shortly before 6.00pm.
Lutze got out of his car and in company with Vucak, got into the Renault being driven by Jozic. The car then drove around the Diggers Rest Recreational Reserve and observed the deceased’s car, parked near the skate park, before returning to Ingot Road. The preparations of the group at that stage did not pass unobserved by local residents, who gave evidence that they witnessed several members of your group arming themselves. The registration numbers of cars were noted and the police were called. A group of nine started off towards the reserve. The drivers of the vehicles remained behind, as did Vodanovic and Zizic, who remained in Ferraro's vehicle. The group, to which you belonged, entered the reserve from the car park entrance in Plumpton Road. The petrol bombs were left at the entrance to the car park. Your group then walked on and, on various accounts, quickly began to run across the oval.
Nathan Roberts-Nunan, who had come with his friend, Stephen Thorneycroft, to support his younger brother, Kyle, had parked his car in the skate park car park. He was sitting in the back seat and Stephen Thorneycroft was in the front seat of his vehicle. Kyle Nunan was nearby. At this stage, it was pretty close to 6.00pm on Sunday 8 February. There were a large number of children and youths gathered around and using the skate park and a large group were also at the nearby Diggers Rest Cricket Club. Several members of that group gave evidence on your trial.
As your group came across the oval, Kyle Nunan left the scene, headed towards the skate park. The deceased, Nathan Roberts-Nunan got out of his car and was attacked by Vucak, who was armed with a machete. At about the same time, Smith, armed with two boning knives stabbed Stephen Thorneycroft in the stomach. The wound inflicted was sufficient to expose his intestines.
Nathan Roberts-Nunan tried to defend himself with a club-lock, which he reached into the car to get. Your co-accused, Ogrizovic, struck him with a baseball bat with sufficient force to break the bat. Smith then stabbed Nathan Roberts-Nunan, simultaneously to the left mid-section of his back and the upper part of his right arm. The wound to Nathan Roberts-Nunan’s back proved to be fatal.
Smith, in addition to you, JC, also attacked Nathan’s vehicle, stabbing tyres, smashing the windscreen and rear window and other windows of the car. It was during this attack that you, JC, sustained the injury to your hand. You admitted, during your record of interview, that you broke a window of the car with the handle of the machete and that it slipped on impact, the blade cutting your hand.
You, Garcia, admitted to being close to the car during the attack, along with Smith, Vucak, Ogrizovic and JC. You, Andreevski, say you were towards the rear of the group as they came across the oval and once the attack had begun, stopped where you were and did not go any closer. In any event, as I have said previously, it is the unremitting senselessness and cowardly display of mob violence and its most extreme, which constitutes fighting to the fear of the public. That is the core of the crime of affray to which you, Andreevski and JC, pleaded guilty. You Garcia, pleaded not guilty, but were found guilty of that offence by the jury. I reiterate that this event at Diggers Rest was one of the worst examples of an affray which could be imagined. I emphasise that you all chose to be part of it.
Within a few minutes, your group had retreated across the oval. The group all managed to leave the scene, although initially, there were seven passengers in Lutze’s car. Jozic and Ferraro gave evidence that they saw blood on at least some of the group.
Lutze, after observing blood on Smith, was told by you, Garcia, that the blood had come from somebody he had stabbed. A matter which Smith later confirmed. Your group were driven back along the Calder Highway and went to a rural property in Edwards Road, Diggers Rest. The property belonged to Branislav Karula, the person who had produced the small sword at the BP Service Station.
Whilst you were at the property, there was some discussion with regard to the fight. You, Andreevski, together with Ferraro, Zizic and Vodanovic were among the first of the group to leave. Only Jozic preceded you. Lutze gave evidence he heard other members of the group bragging about what had happened. Decisions were reached, among some, with regard to destroying physical evidence and setting up alibis. Weapons and bloodied clothing were left at the property. Some of the group remained there for about 40 minutes. Lutze drove his Mitsubishi Magna around the corner and abandoned it, intending to report it stolen. Smith, Lutze, Ogrizovic and, you, Garcia and JC were collected by Lutze’s girlfriend’s mother and were dropped off at Ogrizovic’s home. You, Andreevski, upon leaving, returned directly to Lutze's address in St Albans to retrieve your vehicle and were there met by police.
Nathan Roberts-Nunan was pronounced dead at Royal Melbourne Hospital at 8.07pm on Sunday 8 February 2009. Stephen Thorneycroft underwent surgery for a lacerated liver and his spleen was removed. Such injuries are commonly fatal.
Hierarchy of offending
As I have noted in the past, it has been necessary to establish a hierarchy in relation to this offending. Nathan Smith pleaded guilty to murder, intentionally causing serious injury and affray. He was sentenced to a total effective sentence of 22 years with a non parole period of 17 years. The severity of that sentence is subject to appeal.
Lutze, Jozic and Ferraro, the drivers, were each released on community-based orders for two years and are required to complete 400 hours of unpaid community work following each pleading guilty to one count of affray. The distinction which operated in their favour was that they did not leave their respective vehicles and come onto and across the oval. They were taken at law to have been part of the affray because of their knowledge of the enterprise generally, but they did not join in the continuing enterprise to such a degree as to be capable of being counted as party to the death or serious injury on the basis of acting in concert or extended common purpose. The implied agreement to act as a getaway drivers was linked to the crime of affray.
The Crown case proceeded on the basis that the actions of Nathan Smith were the unintended consequences of an agreement to engage in affray in circumstances where there was knowledge of weapons being carried and where it was objectively foreseeable that one of your number would expose some person to an appreciable risk of serious injury. That matter was ultimately accepted by the jury. Further, it is necessary to differentiate between each offender involved in the enterprise, as it seems the members of the jury did, on the basis of the verdicts returned. Each accused did not play the same part in the enterprise and that includes reference to those who previously pleaded guilty.
Vucak, for instance, was the principal organiser and struck what was probably the first blow to the upper arm of Nathan Roberts-Nunan. Ogrizovic was a significant actor in the early phase of the assault and was armed with a baseball bat which he used to strike Nathan Roberts-Nunan. Panic was amongst the first across the oval. It does not appear that either you, Andreevski, or you, Garcia, were involved in damaging the deceased’s car. You on the other hand, JC, by your own admission, were involved in doing so and further, you were armed. The absence of involvement in the assault and the actual use of weapons is a matter which places the offenders, Stevanja and Mrnjaus in a somewhat less serious category.
Counsel on the plea urged me to view your conduct, Mr Andreevski, on a similar level. Mr Kilduff, on your behalf, submitted I could not be satisfied beyond reasonable doubt that you were armed. On your trial, no witness gave evidence of seeing you on the oval with a weapon. You, Garcia, were given the small sword at the BP Service Station. No witness gave evidence on the trial that at the time you crossed the oval and were involved in the general attack on the car, that you were armed. You, JC, by your own admission were armed with a machete which you used to strike the car.
I have found that Ante Vucak played a pivotal role in these events. I found that he misrepresented the nature of what was to occur; to Kyle Nunan to a large degree and to those of you he recruited or was ultimately responsible for recruiting.
It was put that Lutze also played an organisational role, which is true in part. He had of course been recruited by Vucak in the first place. It seems apparent now that Lutze was responsible for recruiting Smith and Ogrizovic, in addition to you, Garcia, and ultimately you, JC.
I found that Ogrizovic was amongst the first to reach Nathan Roberts-Nunan and Stephen Thorneycroft and that he struck Nathan Roberts-Nunan with the baseball bat he carried, with sufficient force to break it. That bat was tendered as an exhibit on your trial. I found Panic was also among the first across the oval and was armed with a weapon. I cannot be satisfied that Mrnjaus and Stevanja, while armed, struck either victim or damaged the car. You, JC, did damage the car and were armed with a machete. You, Garcia, were among the group surrounding the car. I cannot be satisfied that you were armed with a weapon and there is no evidence that you attacked either victim or damaged Nathan Roberts-Nunan’s vehicle. You Andreevski, were, on the evidence, slightly behind Stevanja and Mrnjaus. There is no evidence that you were armed.
I accept that from your own perspectives, the three of you feel as though you have done nothing which merits criminal punishment, because you did not inflict injury or cause death. But the law is such that when you choose to act as part of a group with the general level of hostility present in the way this group operated, then each of you in that group will be held responsible, at least to some degree, for what was done.
Here there was a possible scenario, and not a fanciful one, where each of you could have been charged with murder on the basis that your commitment to the affray was such that you foresaw the possibility of death or really serious injury. Should that be so, you would have been guilty of murder. The prosecution did not proceed on that basis and I regard that view of the matter as both practical and sensible in the circumstances of this case.
It should be noted that although it will not be possible to afford you the discount that those who pleaded guilty received, I regard the trial as having been conducted in the most reasonably economical way possible.
In the final analysis, I think that in relation to you JC, the jury concluded your proximity to the front of the group, your use of the machete to break a window of the car and your finishing up with a cut on your hand showed that you were party to an agreement that included the probability of serious injury. The jury were not prepared to act beyond reasonable doubt with regard to that issue as it related to you, Andreevski and you, Garcia. I must say it was open and reasonable for them to do so.
I turn now to the matters personal to each of you.
Nikola Andreevski
Nikola Andreevski, you are 22 years old and the second of three children in your family, having an older brother and younger sister. You grew up in Avondale Heights attending St Martins Primary School from prep to Grade 6. You showed interest in motor sports and fishing activities, shared on a regular basis with your father, brother, uncle and grandfather.
You attended St Bernard’s Secondary College until the successful completion of Year 12 in 2006. You were, on your own account, very interested in your studies until Year 9 when your uncle Vanko died in tragic circumstances. You described yourself as shattered and told Ms Lechner, the psychologist who examined you, of how he was hit from behind during a fight in a pub. No one was charged and his family and friends had no resolution. You found it difficult to concentrate during Year 9 and 10 noting, “It was like losing a Dad to me, I hated watching my grandfather suffer.”
You had begun working part time whilst in Year 10 and upon leaving school, continued to work while completing a traineeship with Chalmers in Transport Fleet Control. You remained there for 12 months before working with the Murray Goulburn Company Transport Department where you were employed at the time of your arrest in March 2009. Upon your release on bail pending your trial, you were enrolled in a pre-apprenticeship course at Victoria College, completing your studies at the end of 2009. You commenced an electrician's apprenticeship this year and hope to return to complete your time upon your release from custody.
I received four character references on your behalf. They were from Gert Grondowski dated 17 October 2009. He was your former employer. A reference from Rachel Lerm, who will soon be your sister-in-law, dated 5 October. There was a reference from your father, Ordan Andreevski, dated 4 October 2010 and finally from your brother Dimitri.
Counsel on your plea noted the outstanding support of your family throughout this process. Your father and brother were present in court throughout the trial and on your plea. On the plea in particular your father, mother, grandfather and grandmother and brother were present. It was noted in the written material provided that they continue to support you.
Counsel submitted that the trial was run and that submissions were made to the jury and to myself on the basis of your remorse regarding these events. In her report, Carla Lechner noted your comments during interview and I quote: “The guy who died didn’t deserve to die. I don’t understand why this happened. I never believed that anyone in our group is the kind of person who would do that stuff. I am ashamed to be associated with something like that. Destroyed his family. I know what it’s like. My family was destroyed by my uncle’s death. I didn’t think this was going to happen. If I did I wouldn’t go. I’m ashamed of myself that I was a party to that group. I didn’t anticipate the danger. It’s put a hole in my life".
Counsel on your behalf submitted that I should have regard the fact that you were not involved in any sense in the organisation of these events. Mr Kilduff noted that you were in a different group of friends and did not know Smith, Lutze, Ogrizovic, JC or Garcia and some of the others were mere acquaintances. Counsel further submitted that I consider yours the most minimal role that anyone in the group played in terms of going across the oval. He further submitted, and I accept, that you do have good prospects of rehabilitation and prior to these events, had been of good character. You were young and, it was submitted and I accept, that you are genuinely remorseful for what happened.
John Ray Garcia
John Ray Garcia, you are currently 22 years of age, born on 8 September 1988 and at the time of this incident, on 8 February 2009, you were 20 years old. On the plea, your counsel submitted that there was no evidence that you had knowledge of, nor became involved in the incident prior to late Sunday afternoon and I accept that is so. Mr Desmond, on your behalf, submitted I could not be satisfied beyond reasonable doubt of your part in any premeditated planning with regard to the fight.
It was further submitted on your behalf that evidence shows that while you may have passed the small sword around the motor vehicle when it was collected from the BP station on Calder Highway, and that you played with it during the car trip, there is no evidence that at the time the group crossed the oval, you were armed with any weapon. I have indicated I find in your favour in that regard.
It was further submitted that no direct evidence was elicited that you engaged in any shouting or yelling which encouraged Smith or Vucak or others. Counsel on your behalf also submitted that your complicity was based on your running across the oval with a number of armed offenders, conscious of an appreciable risk of serious injury occurring and in general terms that is correct.
You were born and raised in the Philippines. In 2006 your parents separated. Whilst you were still young, your mother relocated to the United States. She would send money back to the Philippines where you remained. Your father was not present. You were raised by your half brother and sister in Manilla. Your mother was diagnosed with terminal cancer and returned to the Philippines when you were 13 years old. Your mother died within six months. However, counsel told me that you regarded that six months as being perhaps the happiest of your life, having been reunited with your mother. Within the next two months you experienced further tragedy when you lost your maternal grandmother who was with you at the time to support your mother. Three months later, your sister’s husband also died as a result of cancer.
Your sister then assumed care of you for a brief period when you were 16. She assisted you to locate your father who was in Australia and aided in the processing of the necessary applications required for your immigration here. At this time you resided with your fraternal aunt in the Philippines, having at times assisted with the palliative care of your maternal grandmother.
At age 18, on 3 November 2006, you left the Philippines and came to live with your father and his partner, your half brother and half sister in St Albans. When you first arrived you all got on extremely well. On 15 January 2007, your father discovered that his son, then aged 15, had committed suicide. This resulted in a deterioration of the relationship between the two of you to such an extent that you were asked to leave the St Albans house and you did so at the age of 16. At that time you were studying year 11 at Brimbank College and were employed at Hungry Jack’s in Deer Park. You were living from time to time with friends and at other times made arrangements for your own accommodation.
Upon leaving the house of your father, you had no possessions and felt you had no option but to quit school. You were at that stage transient and on the lookout for places to live. During that time you developed an interest in boxing, which later became a hobby and it was during your pursuit of those interests that you met Timothy Lutze. You soon developed a relationship with him and his mother who would assist you by driving you from time to time between work and boxing commitments.
You soon after changed employment from Hungry Jack’s to factory work at Costal Logistics and it was during the course of your change of employment that Ms Cooper, following consultation with her son and daughter, offered you a place to live. You were welcomed into their family. It was in such context that you met Nathan Smith, also known as Chippy, who had also been taken in by Ms Cooper.
At the time of your arrest you were not in permanent employment, although you had completed a power awareness and open registration course at TAFE in Chadstone. You did so for the purpose of securing a job on a sub-contract basis as a technician with Foxtel.
You have no history of alcohol or substance abuse. For a period of approximately 18 months prior to your arrest, you were in a stable relationship with Marion who was 25 years old and employed as an accountant with Defence Credit. Your counsel described that relationship as continuing and stable.
In a report dated 11 October 2010, Mr Cummins, a very experienced forensic psychologist, noted your strong Christian faith. On p 4 of his report, Mr Cummins noted your current minimal involvement or contact with your father and step mother. Mr Cummins notes: “In my opinion, Mr Garcia’s prospects for long term rehabilitation are favourable.” He notes further: “In my opinion, it’s probable at the time of the offending, he was unusually vulnerable to adverse peer group pressure because at that time he was in my opinion suffering from an adjustment disorder with mixed disturbance of emotions and contact.”
He further opines that: “The adjustment disorder was triggered by the turbulence in his relationship with his father which led to him leaving the family home. That turbulence was triggered as a result of his half brother taking his life only two months after Mr Garcia had arrived in Melbourne.”
Counsel on your behalf submitted on the plea I should accept that such diagnosis will reduce your moral culpability in relation to the offence. I noted on the plea that such diagnosis was increasingly common these days.
Mr Desmond on your behalf argued that you were unusually susceptible to peer group pressure and I should take that into account as an operable or causal effect at the time of your offending. He submitted that Verdins[2] had some application. Mr Desmond drew attention to your youth and lack of prior offending and summarised that you had been subjected to peer group pressure which had catastrophic consequences.
[2]R v Verdins, Buckley & Vo (2007) 16 VR 269.
Counsel also submitted such matters were of additional relevance in relation to the principle of general deterrence, insofar as consideration should be moderated. A similar submission was made with regard to specific deterrence. I was directed to the cases of R v Zander[3], R v Wise[4] and R v Johnstone[5] in that regard.
[3][2009] VSCA 10.
[4][2007] VSCA 266.
[5][2007] VSCA 193.
Counsel also submitted that I should find you are a young man of otherwise good character and noted you handed yourself into police and gave police an account of events not inconsistent with the finding of the jury.
Mr Desmond argued that despite your election to run your trial, there existed evidence of genuine remorse for your part for the death and serious injury that occurred.
There were a number of references tendered on your behalf, firstly from Reverend Rene Rivera. He is the pastor of the For the World of Christian Fellowship Church in Caroline Springs dated 10 October 2010. There are also character evidences from Ms Wendy Aguila, who was a church member of a Christian Fellowship Church, from Mai Tran, who is a team leader from the Labour Power Recruitment Services, who assisted you with finding casual employment, from Anthony Evangelista, a friend through baseball, dated 10 October, a reference from Ms Jill Maderal, CPA, who is a friend, a reference from Mr Joselita Ong, he is the father of a friend who noted that prior to the events, was prepared to take you on as an apprentice, in the telecommunications trade and still intends to do so upon your release from custody. There is a reference from Camile Palok, dated 9 October 2010. She is a registered nurse at the Royal Melbourne Hospital and has known you for two years, as a member of the church community.
There was a reference from Evrnon Magtanong, who is a Master of Architecture Student and is a baseball mate. A reference from Joneil Prado, who is a former manager of Hungry Jack’s and, also, a team leader in the Basketball Church League. A reference from Emma Roberts, who is a recruitment consultant, a detailed reference from Ms Cooper, who you now refer to as mum and in whose household you have lived, in the way that I had set out earlier.
I received a reference from Rafael Villanueva, who is an IT auditor at Melbourne University and is the father of a friend. I have a reference and a further reference from an Edward Alan Berro, he is an airline service operator and your basketball coach. A reference for Honey Marie Binuya of 12 October 2010, who is a clinical liaison nurse at the Royal Melbourne Hospital. A reference to Marion Villanueva of 12 October 2010, who is an associate member of CPA Australia and works as a Finance Officer at Defence Force Credit Union and is your girlfriend. I received a report from Sister Mary O'Shaughnessy, GP, who is the Director of the Catholic Prison Ministry in Victoria, with whom you have had contact since being on remand. Finally, I received a reference from Jonathan Lopez, who is a youth and young adults co-ordinator associated with the Word for the World Church, dated 10 October 2010.
Counsel, on your behalf, submitted that these reports tell of a young man, who is a thorough gentlemen, God fearing and respectful for others and they do. Your counsel also noted that the reference of Sister O'Shaughnessy, evidences her opinion that serving your sentence will be more onerous on you than a prisoner with normal health.
Finally, your counsel submitted that in terms of your culpability, I should have some regard to parity of sentencing, albeit that your co-offenders have pleaded guilty and were entitled to a discount for doing so. I have had regard to the matters put to me on your behalf. I should say, in relation to the matters that are put under the heading of what is ordinarily called Verdins[6], which relates to your mental state. Although I have given some weight to those matters, it is difficult to give them substantial weight. That is because of the very nature of this offending, which is, to a large degree and particularly in relation to you, offending of the moment. Rather than having any particular aspect of planning or similar issue about it and offending which has, at the very centre of it, the whole notion of peer pressure. Not just peer pressure being influenced on you from others, but peer pressure throughout the whole group. Peer pressure from each person in the group on every other person in the group. I have had regard to those matters in forming your sentence.
[6]R v Verdins, Buckley & Vo (2007) 16 VR 269.
JC
JC, you are currently 17 years of age, born on 2 June 1993 in Melbourne. Your mother worked as a nurse and is currently on a disability pension. She suffers from migraines and some other disabilities. Your father was a horse trainer and now is also on a disability pension, suffering from arthritis. There are four children to the family, of which you are the youngest. Your eldest brother, Frank, is 31 years old and is a storeman. Nathan is 20 years old and a salesman who lives with Frank in a separate household. The third brother, Ashley, is 19 and involved in storeman type work and is living at home with your parents.
You completed your primary education at four different primary schools. Your family moved to several houses, which caused some dislocation. Your secondary education was firstly at Brimbank Secondary College for Years 7, 8, 9 and 10. You were due to commence Year 11, but as a result of your involvement in these events, that was not possible. You intended to commence your Year 11 studies this year at Kensington Community College and began such course in February, but the commencement of your trial, on 4 August, required you to cease attending school. You had been studying maths, English, personal development, sport and art and, at the mid-year test, had passed all of those subjects.
You have been in custody since 1 September this year and have used your time productively. Through the YMCA, you have begun a three month course in personal training and whilst unsure whether that is an occupation you want to continue with, it is something that you have set out to complete. Counsel, on your plea, submitted that you intended to resume your Year 11 studies next year. You have obtained your White Card, which permits entry onto construction sites, having done a Safety Course at the time you were first incarcerated, prior to being granted bail. Your aim is to finish a Year 12 course and go on to either work as a fitness instructor or in the construction industry.
You have a girlfriend Dakota, who is 19 years of age and due to give birth to your child in March or April of next year. She visits you twice weekly in custody as do your parents.
On your plea, counsel drew attention to the report of Dr Kennedy who indicated that your intellectual abilities are in the average range. Mr Stuart submitted that this was a factor in your favour with regard to your prospects of rehabilitation. I have received a character reference from Bernadette Ayton who speaks well of you and your family.
Counsel reiterated that you were the youngest of the group who crossed the oval, that you were immature at the time and while perhaps still immature, you have now the capacity to appreciate the horrific nature of the events which led ultimately to the death of a young man for no good reason or for no reason at all.
In a report dated 11 October 2010, Dr Simon Kennedy, clinical and forensic psychologist, expressed an opinion with regard to your demeanour which counsel drew attention to on your plea. Under the topic of the evaluation, sub-topic “Presentation” Dr Kennedy said this:
“John JC was assessed at the Juvenile Justice in Parkville. He presented distinctively. He is a young man who is probably formally of average intellectual ability but estimates however presented as non-verbal and extremely immature. He presented as extremely passive and as a person who is quite unassertive. He has some tattoos. Despite being intellectually in the average range, he presented as a person with low insight and understanding of his own personal motivation. He appears to have had little drive, focus or ambition although it is uncertain to what extent this is related to his incarceration. His account of his life, of himself and his life, was limited to his lack of verbal fluency.”
Counsel submitted that paragraph reflected his own experience in dealing with you and I noted, during the plea, that it did fit in with some of the matters that I had observed during the trial. I have taken into account all the matters put on your behalf.
Would you stand up please, Mr Andreevski.
The sentencing task for all the young men in this case has been a very difficult one and finding a place where I think each of you fit in the hierarchy is equally difficult due to the myriad factors which exist. I do however, as was put to me on the plea, regard your conduct as being the least culpable of any of the accused with whom I have had to deal with for the events involved in the crossing of the oval.
It is in general terms, it is closest to that of Stevanja and Mrnjaus, but it must be remembered that they had the benefit of discounts in sentence for both their pleas of guilty and for agreeing to give evidence. Such discounts have been traditionally regarded as substantial.
On Count 1, the count of manslaughter, I sentence you to be imprisoned for five years.
On Count 2, the count of causing injury recklessly, I sentence you to be imprisoned for 18 months.
On Count 3, that of affray, I order that you be imprisoned for 18 months.
I order that six months of the sentence on Count 2 be served cumulatively upon the sentence on Count 1 and I order that the sentence on Count 3 be served concurrently with both the sentences on Count 1 and Count 2. That is a total effective sentence of five and a half years. I fix a non-parole period of three years before you will be eligible for parole.
I declare that 97 days be reckoned as having already been served under this sentence and direct that this declaration and its details be entered in the records of the Court.
You did plead guilty to Count 3. Section 6AAA of the Sentencing Act would appear to impose upon me some responsibility to state what sentence I would have imposed on that count had you not pleaded guilty. Such an exercise is simply a waste of time in the circumstances of cases of this kind. I regard the task as impossible and I decline to do so.
If you would sit down thanks, Mr Andreevski.
Mr Garcia, if you would stand up please.
Your role fits into the slightly more serious category because you were towards the front of the group and near the car when the car was surrounded. It must be noted however that you were not armed with a weapon and it follows that your involvement is less serious than that of Ogrizovic.
On Count 1, the count of manslaughter, I sentence you to be imprisoned for five years and six months.
On Count 2, that of causing injury recklessly, I sentence you to be imprisoned for 18 months.
On Count 3, affray, I sentence you to be imprisoned for two years.
I order that six months of the sentence on Count 2 be served cumulatively upon the sentence on Count 1 and order that the sentence on Count 3 be served concurrently with the sentences on Counts 1 and 2. I fix a non-parole period of three years and nine months before you be eligible for release on parole. I have had particular regard in fixing that non-parole period to the matters put to me as to the manner in which you will serve your sentence and the effect that it will have upon you. I declare that 121 days have been served under this sentence and direct that this undertaking and its details be entered in the records of the court. You can sit down.
Mr JC, stand up for a moment if you would.
You represent the hardest sentencing task that I have to undertake and do so because of your youth. Although I accept that there are great elements of youth and of youthfulness throughout every facet of this case, the fact of the matter is you were 15 at the time these events occurred and you are now 17 years old. The law commands me to have particular regard to the factor of youth in imposing a sentence of this kind.
It is perhaps less significant, because of the seriousness of this offending, than it might otherwise be but it is an important fact with regard to you and the position you were in at the time of these offences. So, even though the role played by you was a quite a significant one in the sense that you were part of the group which surrounded the car and did use a machete to break the window of the car, you do not otherwise fit into the hierarchy in a way that can be reasonably identified. That is because, and solely because of your youth. Therefore yours does not, in relation to any other sentence that is imposed, represent a sentence with which comparison can, in any true sense, be made.
For the crime of manslaughter you will be sentenced to be imprisoned for six years.
On the crime of causing serious injury recklessly you will be imprisoned for two years.
For the crime of affray you will be sentenced to be imprisoned for 18 months.
I order that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence on Count 1 and that the sentence on Count 3 be served concurrently with the sentences on Counts 1 and 2. I fix a non-parole period of three years and six months and do so only on account of your age. I will recommend to the authorities that insofar as is possible, any sentence that you serve will be served in a youth facility. I declare that 135 days be reckoned as already served under this sentence and order that this declaration and its details be entered in the records of the Court.
In relation to s 6AAA, I repeat in their totality the remarks that I made in relation to the sentencing of Mr Andreevski. No realistic assessment can be made pursuant to that section when dealing with sentences which are to be served wholly concurrently in any event. Although the crime exists in its own right, the reasons for which I ordered total concurrency in relation to it are bound up to a large degree in the other matters for which the accused have already been dealt with.
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