R v Ivanac
[2016] VCC 1907
•5 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01279 & AP-16-2873
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY JOSEPH IVANAC |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2016 | |
DATE OF SENTENCE: | 5 December 2016 | |
CASE MAY BE CITED AS: | R v Ivanac | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1907 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Livitsanos | Office of Public Prosecutions Victoria |
| For the Accused | Mr C. Terry | James Dowsley & Associates |
HIS HONOUR:
1 Bradley Joseph Ivanac, you have pleaded guilty to one charge of attempting to pervert the course of justice.
2 The prosecutor opened the circumstances of the offending by reading from a written, "Summary of Prosecution Opening upon Plea."
3
In short, on 12 April 2016, during an application to vary bail in the
Magistrates’ Court, you produced a letter purportedly signed by a prospective hotel employer stating that you had been offered a position as bar tender and would be required to work late. The letter was false. You wrote it. The purpose was to persuade the magistrate to vary your bail conditions, which had a curfew between 8 pm and 6 am.
4 You made full admissions when interviewed.
5 In May you failed to appear at a filing hearing concerning the current charges in the Magistrates’ Court. A warrant was issued. You were arrested and remanded the next day on unrelated matters and were remanded on the current matter the day after.
6 You have now been in custody for 201 days with much of this time being spent at the MRC and at times subject to lockdown. This term has been attributable to a combination of offending. Not only were you remanded on the charge of attempting to pervert the course of justice but you were also in custody due to being charged with a number of matters that were to be heard in the Magistrates’ Court. Those matters were heard on 29 September 2016 and you were sentenced to an aggregate term of 18 months' imprisonment with a non-parole period of 12 months. The magistrate declared the allowable pre‑sentence detention (134 days at that time) and you then began serving the sentence, although you appealed against that sentence.
7 The plea hearing on the charge of attempting to pervert the course of justice was initially listed before me on 22 November 2016 but was adjourned to 1 December to enable the plea hearing to be combined with the appeal. Accordingly, the hearing on 1 December 2016 was conducted as a joint plea on indictment and an appeal from the Magistrates’ Court hearing. Initially you intended to appeal the conviction on some of the Magistrates’ Court matters but those conviction appeals were abandoned and the appeal hearing proceeded as a sentence appeal on all matters.
8 I now return to matters specifically directed to the plea hearing on the charge of attempting to pervert the course of justice.
9 It is conceded that you pleaded guilty at the first reasonable opportunity. You must benefit from doing so. Your plea saves time, expense and the need for witnesses to give evidence. During submissions your counsel initially submitted that I should find the plea also reflects remorse. I accept that by pleading guilty you have facilitated the course of justice but I indicated to your counsel, Mr Terry, that I could not identify any evidence of remorse as such. As I follow, your counsel accepts that this is so.
10 The prosecutor, Mr Livitsanos, made comprehensive submissions during the plea opening directed to the offending and where it should be viewed on the scale of seriousness. The cases of Saleem [2014] VSCA 109, Zotos [2014] VSCA 324 and R v Baba [1977] 2 NSWLR 502 were given particular attention. A number of other cases together with passages from the Sentencing Manual were also referred to. A table of cases is appended to the decision in Toglonini [2011] VSCA 113.
11 Mr Terry did not take issue with the statements of principle relied upon by Mr Livitsanos but counsel differed in their submissions concerning the categorisation of the seriousness of your offending. Mr Terry submitted it was very much at the lower end of the scale. Mr Livitsanos submitted that it was higher than that. In particular, Mr Livitsanos, without identifying a sentencing range, opposed a submission made by Mr Terry that a sentence not significantly different, probably somewhat less, than the sentence imposed in Saleem, a sentence described by the Court of Appeal for the offending in that case as “stern”, was appropriate. The sentence in Saleem was 14 months imprisonment. Mr Livitsanos, referred me to Zotos, where a sentence of three years imprisonment was imposed to emphasise that a range of sentences have been imposed for offences such as yours.
12 Of course he acknowledged that every case turns on its own facts. Some helpful guidance was given by the Court in Zotos concerning the use of ‘comparable’ cases.
13 Both Saleem and Zotos were cases where a sentence on indictment was combined with a sentence on appeal from the Magistrates’ Court.
14 Mr Livitsanos, noted that the curfew condition that you sought to change was obviously thought necessary by the magistrate who imposed it when granting you bail. Some charges for which you were granted bail related to offending alleged to have occurred during the early morning. In particular the burglary was committed at about 5 am.
15 Although I do not infer that the reason sought for the variation was to enable you to commit crimes, no satisfactory explanation for why you wished to have the bail curfew changed or removed has been provided.
16 Although the letter of prospective employment is somewhat amateurish it required some effort to prepare and must have required some involvement and cooperation by your partner whose phone number was used as a contact point should contact be attempted with the purported prospective employer. The likely trigger for discovering that the letter was fraudulent is the fact that the purported signature is spelt differently from both the letterhead and typed name above the signature.
17 You have an extensive prior criminal history. Your history shows a remarkable and consistent disregard for the law including court orders. You may not have understood that offending such as yours is usually punished with significant terms of imprisonment, a matter similar to the point agitated in Saleem and summarily rejected, but your contact with the courts must have made you aware that your conduct was serious and had the potential to undermine confidence in the administration of justice.
18 Magistrates’ courts are busy and there is pressure to deal with cases expeditiously. Trust in the genuineness of written material produced by litigants is necessary for the system to operate efficiently.
19 Mr Terry outlined your background and matters personal to you.
20 You are 28 and have four siblings, three of whom are half siblings. You have two children of your own. A boy aged three and a half and a girl just turned nine.
21 Prior to being remanded you had custody of your son for five days a week. He has special needs and has been diagnosed with Autism Spectrum Disorder. You also had weekly access to your daughter who usually stayed with you on the weekends.
22 Your parents separated when you were four. You did not get on with your mother’s new partner and left home aged 11, at your mother’s instigation.
23 You have had periods of homelessness and instability throughout your teenage years and early adulthood.
24 You reconnected with your father when you were about 15 but contact has been limited.
25 Your current partner has a child aged two.
26 Much to your credit, given your disadvantaged background you completed your VCE.
27 You have worked in various jobs but were not working at time of the offending.
28 You have a drug history but ceased regular use of drugs in late 2013 with relapses in 2015 and 2016. You are drug free in prison.
29 You are keen to make the most of your time in prison and are on waiting lists for courses to assist with drugs and anger. You made efforts towards completing a Men’s Behavioural Change Program and Positive Lifestyle Program before being remanded. You had also undertaken a parenting course prior to incarceration.
30 Two psychological reports from Dr Aaron Cunningham were tendered. One was prepared in 2013, the other in September 2016 for the then pending Magistrates’ Court hearing. Mr Cunningham noted your diagnosis at age four with ADHD for which you had been prescribed Ritalin. He thought your presentation consistent with the diagnosis.
31 You told Mr Cunningham that you are depressed in custody due to being separated from your children and fear your partner will abandon you as others have left you when you were in prison.
32 Mr Cunningham thought you were “impulsive, reckless and emotionally immature”. He thought your abandonment in childhood, leaving you without appropriate adult caregivers, contributed to your difficulty complying with authority figures. He said you distrust authority and believe you will be persecuted and abandoned by others. He thought you struggle to manage stress and cope independently in the community.
33 Mr Cunningham thought you would benefit from support programs and treatment services in the community including psychological and drug and alcohol intervention in the community as well as relationships counselling and stable employment.
34 Mr Livitsanos submitted that I should be guarded about your rehabilitative prospects. He emphasised your extensive criminal history. Your counsel did not disagree but submitted that there were some encouraging signs. You are not unintelligent and have taken some steps to seek support and assistance. As noted in discussion, despite your appalling criminal history, it is in both your and the community’s interests to encourage your rehabilitation but this can only be done within the limits of what is possible and permissible given your offending.
35 The appeal proceedings concerned a total of 18 charges. There are three charges of theft of a motor vehicle (Charges 1, 11, and 25), five charges of contravening family violence intervention orders including one charge of persistently doing so (Charges 2, 4, 6, 20 and 23), two charges of unlicensed driving (Charges 8 and 30), three charges of unlawful assault (Charges 22, 29 and 33), one charge of committing an indictable offence whilst on bail (Charge 9), one charge of burglary (charge 10), two charges of theft (Charges 17 and 26) and one charge of criminal damage (Charge 21).
36 Mr Livitsanos comprehensively outlined the details of this offending. For the purposes of these reasons, which are focussed on the charge of attempting to pervert the course of justice, I will not recite the summaries.
37 The magistrate sentenced you to an aggregate term of 18 months' imprisonment with a non-parole period of 12 months. I do not think that such an order is permissible pursuant to section 9 of the Sentencing Act 1991 although I readily understand the sense and convenience of doing so.
38 Although I propose to structure the sentence differently I am of the firm view that no lesser total effective sentence should be imposed. I think the submission by Mr Livitsanos that the total effective sentence was remarkably lenient, at least, if not manifestly inadequate and that had the hearing been conducted differently you would have been at considerable risk of the sentence being increased, is correct. Had the appeal stood alone I am confident I would have warned you of the risk of an increase and expect you probably would have abandoned the appeal.
39 I am conscious that you initially intended to contest Charges 8, 9, 10, 11 and 17 and that two days had been set aside to hear these matters but after consultation with Mr Terry and through Mr Terry you pleaded guilty. You must of course benefit from your pleas of guilty generally.
40 Concerning the appeal matters you will be convicted on Charges 1, 11, 25, which are all charges of theft of a motor vehicle, Charges 8 and 30, which are charges of unlicensed driving, Charge 10, a charge of burglary, Charge 9, committing an indictable offence whilst on bail and Charges 17 and 26, charges of theft and sentenced to18 months imprisonment (aggregate sentence).
41 On the charges of theft of a motor vehicle any licence you hold will be cancelled and you will be disqualified from obtaining another for a period beginning today and ending three months after you are first released from custody pursuant to the sentences passed by me today whether such release be on parole or on the expiration of the sentence I will impose.
42 You will be convicted of Charges 2, 4, 6, 20 and 23, charges of breaching family violence intervention orders, Charges 22, 29 and 33, charges of unlawful assault and Charge 21, a charge of criminal damage, and be sentenced to six months imprisonment (aggregate sentence).
43 These sentences are to be served concurrently making for a total effective sentence of 18 months imprisonment. Ordinarily there would be no justification for ordering complete concurrency however I feel constrained to do so because of the manner in which the appeal proceeded.
44 Having taken this approach to the appeal matters I consider that I need to be careful not to, “Ramp up the sentence”, to adopt a phrase from Zotos, I impose on the charge of attempting to pervert the course of justice or to order greater accumulation between the attempt to pervert the course of justice and the appeal matters to compensate for the remarkably lenient treatment for the latter.
45 Reference was made during submissions to Buscema [2011] VSC 206, a case in which Nettle JA, as he then was, made what the parties accepted was a helpful analysis of the crime of attempting to pervert the course of justice.
46 First, His Honour noted that:
“Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending”.
47 He then listed a number of factors that bear upon the assessment of the nature and gravity of the particular offending.
48 The parties addressed these factors.
49 In Saleem, which concerned the provision of false letters from a doctor and an Imam to persuade the magistrate that ‘exceptional circumstances’ existed the Court of Appeal said:
“The applicant’s offence strikes at the heart of the administration of justice, and is designed to erode the confidence that should exist between the Bench and those appearing for sentence”.
50 The passages from the Victorian Sentencing Manual, to which I was referred, note the seriousness with which the courts regard the offence including the seriousness of interference with the processes of the bail laws.
51 The public must have confidence in the administration of justice.
52 As already noted you have a very poor criminal history, there is no satisfactory explanation for your offending, your partner must have been involved, the offending could not be described as spontaneous, it was directed towards deceiving a court where an order for a curfew must have been imposed for good reasons and which you sought to have changed or removed.
53 I do not accept your counsel’s submission that your offending is very much at the lower end of the scale of seriousness.
54 You will be convicted of the charge of attempting to pervert the course of justice and be sentenced to two years imprisonment.
55 Mr Livitsanos relied upon the fact that pursuant to s.16 (3C) of the Sentencing Act 1991 any term of imprisonment imposed for a crime committed whilst an offender is on bail is to be served cumulatively upon any other sentence of imprisonment imposed at the same time as that term unless the court otherwise directs. He submitted accordingly, cumulation, “Has a lot of work to do.”
56 Mr Terry conceded there must by some cumulation between the sentence for the charge of attempting to pervert the course of justice and the appeal sentence but submitted that I must also give value to the totality principle.
57 I order that nine months of the total effective sentence (18 months) imposed on the appeal matters be served cumulatively on the sentence of two years for the crime on the indictment.
58 That makes for an effective term of two years and nine months imprisonment.
59 Although you have a very bad record, you are still only 28 and I am inclined to give you an opportunity to show that you can rehabilitate and take advantage of any parole that you may be granted. I fix 18 months as the term you must serve before you are eligible for release on parole.
60 You have served 201 days by way of pre-sentence detention. This period is to be reckoned as time already served under the sentence I have imposed.
61 Had you not pleaded guilty to the charges I expect the total effective sentence would have been about three years and nine months with a non-parole period of about two years and nine months.
62 Is there anything that needs correcting that counsel can identify?
63 MR LIVITSANOS: Not that I'm aware of, Your Honour, no.
64 MR TERRY: No.
65 HIS HONOUR: All right. Can I thank you both very much for your help. I found the matter trickier than I expected.
66 MR LIVITSANOS: As Your Honour pleases. Your Honour, administratively I noted on the last occasion to the contest that was set for 16 and 17 of March next year will need to be vacated.
67 HIS HONOUR: Yes, it will. All right. I'll leave the Bench. Thank you.
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