R v Medini
[2002] VSC 12
•15 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1405 of 2002
| THE QUEEN |
| v |
| AFRIM MEDINI |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2002 | |
DATE OF SENTENCE: | 15 February 2002 | |
CASE MAY BE CITED AS: | R v Medini | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 12 | |
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Criminal Law – Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Parkinson | Office of Public Prosecutions |
| For the Accused | Mr P. Randles | Randles Cooper & Co Pty Ltd |
HIS HONOUR:
Afrim Medini, you have pleaded guilty to a substantial number of offences which occurred during the period 9 January 2001 and 19 June 2001.
The offences can be separated into two categories. The first concerns threatening and violent conduct directed towards various members of a family, which resulted in some property damage and considerable and significant distress, anxiety and upset to the persons involved. These offences are the subjects of Counts 1 - 7 (inclusive).
The second category of offences, concerns agreement with another to enter premises in Lalor with a firearm and to steal money and the incitement of another person to assist in this offence. Counts 8 and 9 deal with this conduct.
Count 1 states that between 9 January 2001 and 19 June 2001, you made a series of demands on Slavoljub Tasevski for the payment of moneys, varying from $40,000 to $500,000, accompanied with threats to kill the said Mr Tasevski. This extremely serious offence carries a maximum penalty of 15 years' gaol - see s.27 of the Crimes Act 1958.
Count 2 is a variation of Count 1, in that the demands made upon Mr Tasevski were also accompanied by threats to property. This is also a serious offence and carries a maximum term of imprisonment of 10 years. See s.28 of the Crimes Act. The following counts, Counts 3 - 7, charge you with conduct in carrying out the said threats, such conduct occurring on 17 January 2001, when you damaged a motor vehicle belonging to Mr Tasevski by fire; on 10 April 2001, when you discharged a firearm through the window of premises at 110 Warwick Street, North Sunshine, and placed persons therein in danger of death; on 10 April, the same day, damaging a window, internal wall, and a basketball backboard at the same premises; followed on 2 May 2001, by discharging a firearm through the window of premises situated at 19 Cromley Street, Sunshine, thereby placing persons therein in danger of death; and finally, on 11 May 2001, intentionally causing damage, by the discharge of a firearm, to a window and internal wall of the same premises.
The premises at Warwick Street are owned by Milanco Gligorieva, and the premises at Cromley Street are owned by his cousin, Slavoljub Tasevski.
The offences set out in Counts 3 - 7 (inclusive) are all treated by the Crimes Act as serious offences, and each carry a maximum term of imprisonment of 10 years - see ss.22 and 197(1) of the Act.
Count 8 states that you, in Lalor, on 19 June 2001, agreed with Mr Benito Maccia to enter premises in St Albans with a firearm and steal money therein. This is an offence established by s.321(1) of the Act, the penalty for which is provided for by s.321C(1)(a), namely the same penalty for the commission of the agreed offence. The agreed offence was aggravated burglary under s.77 and carries a maximum term of imprisonment of 25 years - see s.77(2).
The final count states that you, on the same day, incited a person called Alex Baldwin, who was in fact a police operative, to assist with a proposed aggravated burglary. This is an offence by reason of s.321G, the penalty for which is imposed by s.321I(1). It imposes the same penalty in respect to the proposed offence, which would have been aggravated burglary, and by reason of s.77(2), the maximum term of imprisonment is 25 years.
It is clear that all these offences are treated by the Legislature of this State as being extremely serious offences and in particular, the conspiracy and incitement offences involving a proposed aggravated burglary. You pleaded guilty to all these offences and, by your plea, you admit the elements of each count.
The offences in Counts 1 - 7 (inclusive) were committed by you without you knowing the identity of your victims and the reason or reasons for the threats made to, and violent conduct committed by you on, these unfortunate people. These offences were committed by you at the request, accompanied by financial reward, of Mr Benito Maccia. The reason or reasons why he was pursuing the vendetta against the victims are not clear. He has been charged with a number of serious offences, including incitement to murder, and his committal is to take place some time in March this year. You have agreed to give evidence against him.
You were born on 29 September 1974. At the time of the commission of these offences, you were aged 26 and are now 27. Save for a short period when you resided with your girlfriend, you have lived with your parents in Northcote.
You left school aged 17, having completed Year 10, but it is clear that you were not an enthusiastic or successful student. Your initial work was as an automated mechanic and when you were aged 21, your father purchased an automotive business called "Turbo Automatics" which repairs and maintains automatic transmissions in premises at Epping. You worked there for the last five or six years, you enjoy the work and the job will be available to you when you are released from prison. I understand that you are a good employee.
You were arrested on 19 June 2001 and your only application for bail was unsuccessful. You have been in custody ever since. Because of threats made indirectly by Mr Maccia, who was also arrested on the same day and who also has remained in custody, you are in protective custody at Port Phillip Prison and it is expected that you will remain there. It could never be said that being in prison is a happy circumstance, but to be in protective custody, within a prison, is indeed a depressing and restrictive environment.
You got to know Mr Benito Maccia, who is now aged 62 years, in the year 1997 by reason of the fact that his business premises were located opposite to your father's business in Epping. Mr Maccia is the owner and operator of the Superior Shoe Company and the Superior Moccasins factory. Your involvement in the criminal conduct commencing in January 2001 is due to your acquaintance with Mr Maccia.
To better understand your involvement, it is necessary to identify who the principal victims were of your criminal conduct. They are Slavoljub Tasevski; his cousin, Milanco Gligorieva; Elizabeth Gligorieva, the latter's sister; Borce Vasilevski and members of their families. These people are all related and form part of the same family group.
Mr Maccia got to know the family fairly well by reason of his employment of Elizabeth Gligorieva, whom he employed at his Superior Shoe Company in Thomastown. He also, from time to time, employed Mr Tasevski's wife, Ljubica.
The statement of Elizabeth Gligorieva gives some inkling as to the explanation of what appears to be the bizarre conduct by Mr Maccia. Miss Gligorieva is aged 35 years. It is clear from her statement that Mr Maccia became infatuated with her and although there was some spasmodic sexual contact over a few years, by and large, she rejected his advances. During 1997 to 2000, Mr Maccia formed friendships with the victims and their families and on occasions, he attended social gatherings of the victims. He soon became familiar with the make up and activities of the families.
Prior to January 2001, some members of the family had been involved in a shop business which was unsuccessful and which included Mr Tasevski's brother, Gordanco, who came to Australia from Brazil. When the business failed, he returned to Brazil. The business failed owing some substantial debts. This created some tension within the family. Mr Maccia was aware of some of the circumstances and the cause of the tension. Your criminal conduct was thought by members of the family to have arisen out of this business venture. For some time, it was thought that the threats were coming from members of the family. The first threatening telephone call was made in November 2000, but you were not involved. It is a fair inference that Mr Maccia was behind it.
Having made those observations, it is fairly clear that those circumstances were unknown to you.
In December 2000, Mr Maccia offered to lend you the sum of $5,000 to enable you to take a holiday and you accepted his kind offer. This placed you in his debt. The arrangement was that you were to pay off the loan in the year 2001.
It was during January 2001 that Mr Maccia requested you to make telephone calls to various members of the Gligorieva and Tasevski families, and to demand money from them with threats to kill, to cause serious injury and/or damage property.
On each occasion, Mr Maccia drove you to various public telephone boxes in the northern suburbs to make calls and told you what to say. For each call, you were credited with a sum of money against your indebtedness to Mr Maccia. Usually, the sum of $100 was credited for each telephone call you made. The police became involved. Mr Maccia requested you to contact police investigators to find out what was going on.
This happened over the months following January 2001 and there is no doubt caused considerable fear, upset and distress to the various members of the family. This was especially so after 17 January 2001 when Mr Maccia hired you to set fire to a motor car owned by Mr Tasevski, which at that time was parked at Mr Gligorieva's house in Sunshine. Mr Maccia drove you to the location and provided you with the accelerant to use in the fire. You set fire to the vehicle causing approximately $1,000 damage. For this, Mr Maccia allowed you the sum of $500. This act gave credence to your threats and no doubt caused fear in your victims.
In the meantime, you continued to make phone calls to Mr Tasevski, making threats to kill or injure him and his family unless money was paid and threatening to cause damage to his property.
As I have said, the evidence of Mr Tasevski shows that in fact the telephone calls commenced in November 2000, in which a male person stated that Mr Tasevski owed some money. This continued into December. As I have said, this was before you came on the scene. However, as I have also said, it caused Mr Tasevski and members of the family to speculate that other members of the family had been involved, including one of the partners in the ill‑fated business.
What was motivating Mr Maccia is difficult to determine.
Sergeant Dolan, the officer in charge of the overall matter, gave evidence in which he stated it was difficult to ascertain what was behind Mr Maccia's determination to put fear into the victims and their families. As I have said, he knew the families very well. It was thought at one stage that it may have been the result of some unlawful activity, but that proved incorrect. It may be that his infatuation with Miss Gligorieva having turned sour, he was attempting in his own bizarre way to get her back by creating problems and then providing some comfort. There is some support for this theory because in April/May 2001, Mr Maccia hired a private security firm to look after the various members of the family. By keeping a close involvement with the family, he was able to get an insight into the police investigation and no doubt took steps to avoid being caught.
Whatever be his motive, and it was unknown to you, it seems to me to be a matter which is better left to Mr Maccia's appearance in the criminal system. The point is, you were unaware of why he was hiring you to do what you did. Nevertheless, you were a willing participant.
In April 2001, Mr Maccia hired you to shoot at the house of Milanco Gligorieva at 110 Warwick Road, Sunshine. He supplied you with a .22 rifle and ammunition. Mr Maccia drove you to the house and you fired a shot into the house, causing damage to the front and rear windows, and you also fired a shot into a basketball ring backboard, which was erected in the backyard. Mr Gligorieva's 14 year old daughter, Danni, was present in the house but was not physically injured. However, she has been emotionally injured and scared. This particular incident is the subject of counts 4 and 5. Mr Maccia allowed you $1000 for this incident.
Some three weeks later, on 2 May 2001, at the request of Mr Maccia, you fired a bullet into the house of Mr Tasevski, causing damage to a window. There were people in the house at the time. Fortunately, no one was injured. This is the incident which is the subject of Count 6.
On 11 May 2001, you repeated the firearm attack, causing damage to a window in the meals area of the house and an internal wall. This conduct is the subject of Count 7. You received $1000 for these incidents.
During April and May 2001, Mr Maccia hired a private security firm to keep Elizabeth Gligorieva, her brother, sister-in-law and their family, under surveillance. In June, Miss Gligorieva requested Mr Maccia to cease the security patrols, which he did, but Mr Maccia hired a person to follow and keep Miss Elizabeth Gligorieva under surveillance. These facts, although having nothing to do with you, give some insight into the possible motives of Mr Maccia.
During this period, you were also continuing to make phone calls and making threats. As I have said, it is clear that the family members were in fear of their lives and safety. It appears they underwent counselling due to the stress when members of the family found their day to day activities were under threat. Your actions caused considerable tension amongst them.
In mid-June 2001, Mr Maccia and you met with a person who turned out to be a police covert operative. Mr Maccia put forward a proposition that you and the operative should enter a house situated in the St Albans area and steal some $800,000 from the safe. As I understand it, Mr Maccia believed that there were moneys of that order in the house. Later that day, another meeting took place between you and the operative, during which you discussed the commission of the proposed aggravated burglary. Later, you went to the address in St Albans for the purpose of gathering information, to enable you and the operative to enter the premises and steal the money. It was whilst you were performing this reconnaissance that you were arrested. Mr Maccia was also arrested.
Both of you were taken independently to the office of the Tactical Response Squad in St Kilda Road and were interviewed. You quickly and frankly admitted your involvement in the matters, the subject of the nine counts. You identified Mr Maccia as the person who requested you to do what you did, and as the person who introduced you to the burglary opportunity.
Mr Maccia, as I understand it, was less than cooperative with the police and his committal is to take place next month. You have given an undertaking to this Court to give evidence in accordance with a statement which has been tendered to the Court and is to remain on the file.
All of these offences are viewed by the Legislature as serious offences carrying maximum periods of imprisonment from 10 years up to 25 years.
The offences are serious and your level of criminal culpability is high.
The five victim statements that were tendered in evidence, graphically described the enormous distress, fear and upset you caused to the victims and their families. Their lives were severely disrupted, and some of them have suffered from emotional problems as well as financial loss as a result of the firearm discharges and the burning of the motor vehicle.
The victim impact statements are from Slavoljub Tasevski, who was the victim of the threats and whose car and house were damaged by your conduct, as well as from Milanco Gligorieva and his wife, Vesna, who were also the subject of threats and whose house was also damaged. In addition, there is a statement of their daughter, Danni, who was affected by the attack upon their house. Finally, there is the impact statement of Elizabeth Gligorieva, who was also traumatised by your conduct towards her and her family.
The impact of the crime upon the victim is relevant to the sentencing process. This was the position at common law. The impact statement goes to the issue of the seriousness of the crime. It is not open, however, for the victim to express an opinion as to what is the appropriate outcome of the proceeding. It is always open to a judge in considering the appropriate sentence, to have regard to the fact that no evil effect resulted from the crime to the victim, and conversely, is entitled to have regard "to any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the crime." - per Full Court in R v Webb (1971) VR 147 at 150-1. See also R v Boyd (1975) VR 168.
In 1994, legislation was introduced into this State which provided for a victim impact statement to be prepared by a victim and submitted to the Court to assist in determining the appropriate sentence. This had the effect of facilitating what, in the past, had been a difficulty, namely, placing before the Court credible evidence of the effect of the criminal conduct upon a victim. Often in the past, assertions were made from the Bar table and the Court was more often than not left to its own devices to draw inferences from the circumstances of the offence as to the likely impact on the victim. Now a procedure is available to enable evidence in proper form to be placed before the Court. Sections 95A - E of the Sentencing Act 1991 make provision for use of the statements.
Section 95A(1) provides:
"(1)If the court finds a person guilty of an offence a victim of the offence may make a victim impact statement to the court for the purpose of assisting the court in determining the sentence."
(Emphasis added).
The legislation does not go on to give any real guidance as to how the Court will be assisted in determining sentence by the contents of such a statement. In my opinion, the common law position would apply and the Court can take into account, when determining the severity of the criminal conduct, the impact and effect upon the victim.
Legislation provides for the content of the statement, the means by which it is prepared, and requires the distribution of the statement. The legislation also provides for the giving of oral evidence by the victim, who may also be cross‑examined.
The statement is made in writing by statutory declaration, or by statutory declaration and additional oral sworn evidence.
The Prosecutor and the prisoner may request that the victim be called, or the person who made the impact statement on behalf of a victim, or the medical expert who made a statement. If a person is called as a witness, he or she may be cross‑examined and re-examined. In addition, the victim may call a witness in support of any matter contained in the victim impact statement, and again, such person may be cross-examined and re-examined.
It is important to note that under s.95E(3), any party may lead evidence on any matter in the statement or in a medical report attached to it.
The statement must be filed with the Court and a copy provided to the other side, "a reasonable time before sentencing is to take place" - see s.95C. This, no doubt, is to enable both prosecution and defence to consider the contents, object if thought appropriate, and if necessary, seek to have the victim or others brought before the Court for oral examination.
Under s.95B, the statement is confined to "particulars of any injury, loss or damage suffered by the victim as a direct result of the offence". Power is given to the Court under s.95B(2) to rule out all or parts of the statement as being inadmissible, including any medical report attached to it.
The impact statements assist the Court in a number of ways. Often in the sentencing process, the focus tends to be on the prisoner, and the impact statement is a timely reminder that the Court should not overlook the effect of the criminal conduct on the victim. The victim impact statements in the present case graphically illustrate the enormous distress, anxiety and upset caused to the victims and their families, to the point where some of them were in fear of leaving their home and walking down the street, and were constantly concerned that the threats you made would be carried out.
The use of the statements were discussed by Vincent J in R v Beckett, unreported, delivered 20 August 1998. His Honour said:
"The introduction of such statements was not, as I see it, intended to effect any change in the sentencing principles which govern the exercise of discretion by a sentencing judge. What such statements do is to introduce in a more specific way factors which a court could ordinarily have considered in a broader context, and they constitute a reminder of what may be described as the human impact of the crime. They draw to the attention of the judge, who would have of necessity to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it".
I respectfully agree with what His Honour said. The introduction of such statements do not affect any change in the sentencing principles, because in fact, the effect on a victim was always a relevant matter to the sentencing process, but the legislation provided the means of placing the evidence before the Court in proper form.
I also refer to the observations made by Charles JA in R v Dowlan (1998) 1 VR 123 at 140.
Copies of the statements were provided to your counsel, and no objection has been taken to them. They provide credible evidence to the effect of your conduct on the victims and their families. The statements include the effect of Mr Maccia's conduct also, but I ignore his conduct, in so far as that conduct does not bear upon your conduct. In other words, I ignore his conduct if it is separate and distinct from yours.
The determination of a sentence is the exercise of a judicial discretion, a task which is recognised as difficult. The law requires me to determine the facts, supply the relevant principles of law, and determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances of the case. Principles of law are found in the common law and in statutes, in particular, in this State, the Sentencing Act 1991. Taking into account the principles of sentencing, the relevant statutory provisions, the maximum sentence as prescribed for the offences by the statute and all relevant circumstances, both aggravating and mitigating, the task "of a sentencing judge is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as an appropriate sentence". See R v Young (1990) VR 951 at 954.
As the Full Court said, it has always been accepted in this State that, "The purposes of punishment are manifold" and hence, "the task of a sentencing judge has never been regarded as capable of being confined without injustice within rigid formulae".
The High Court summarised the principles to apply in Veen v R (No.2) (1998) 164 CLR 456 at 476, where Mason CJ, Brennan, Dawson and Toohey JJ said:
"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes punishment. The purposes of criminal punishment are various, protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence, but sometimes they point in different directions".
In the end result, the punishment must fit the crime. The sentence must be commensurate with the seriousness of the crime, and this is known as the principle of proportionality. As the High Court said in Hoare v R (1989) 167 CLR 348 at 354:
"A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances".
This requires the Court to start with a consideration and appraisal of the objective gravity of the offence. The sentence must fit the seriousness of the crime. The seriousness of the crime is measured by the maximum penalty imposed by the law and the circumstances. The sentence must serve not only as a sufficient deterrent to the prisoner, but to any others who are of like mind and, further, it must provide protection of the public. One of the fundamental purposes of punishment is to protect society. Retribution is also of importance. In addition, of course, the Court considers matters personal to the prisoner, his character, his history, his conduct, and his probable future and, in particular, his prospects of rehabilitation. If the latter are good, every possible step must be taken to achieve it. It is in the public interest to keep people out of gaol.
Statute has to some extent overtaken the common law, and the Sentencing Act 1991 sets out guidelines and lists relevant matters that must be taken into account when a sentencing judge performs his or her task. They are found in s.5.
Section 5(1) sets out the purposes of which sentences may be imposed and it is noted that the purposes are the "only purposes for which sentences may be imposed". The purposes can be summarised. They are to punish the offender to an extent in a manner which is just in all the circumstances, to deter the offender or other persons committing like offences, to establish conditions for rehabilitation of the offender, to manifest the denunciation by the Court of the conduct, and to protect the community from the offender. These guidelines are expressed in the alternative, and the sub‑section concludes by stating that a combination of two or more of the purposes may be relevant in the particular case. To some extent, the purposes are potentially conflicting and the Legislature has not nominated any particular purpose as being the paramount one. Further, the guidelines are silent as to how the Court should apply them, but clearly the Court must consider the relevant purposes and weigh them in a manner which will do justice in the circumstances. Having observed that, in my view, the basic principle is still that stated by the High Court, namely, the principle of proportionality. In other words, a sentence should never exceed that which is appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances.
Section 5(2) sets out a list of matters that the Courts must have regard to. They can be briefly summarised. They are the maximum penalty prescribed; current sentencing practices; the nature and gravity of the offence; the offender's culpability and degree of responsibility; personal circumstances of any victim; any injury, loss or damage resulting directly from the offence; whether the offender pleaded guilty and if so, at what stage; the offender's previous character and the presence of any aggravating or mitigating factors concerning the offender or of any other relevant circumstances.
Guided by s.5 and the principles of common law which are not inconsistent with the statutory provision which, of course, must prevail, the Court weighs up all the relevant circumstances, including both aggravating and mitigating factors, and pronounces a sentence which is the result of the "instinctive synthesis" of those matters. That is the appropriate sentence. That does not mean that the process of reasoning is one of guesswork, but indicates the complex process involved in sentencing by which, after paying attention to all relevant matters, both aggravating and mitigating, the Court arrives at an appropriate sentence. It is not permissible in this State to adopt what was known as the two-stage approach in determination of sentence, namely, to determine the undiscounted term of imprisonment then, having reached that result, take into account all mitigating factors to arrive at the proper and appropriate sentence. See R v Nagy (1992) 1 VR 637.
These offences are serious. The maximum periods are 15 years for Count 1, 10 years for each of Counts 2 to 7 and 25 years for Counts 8 and 9. The Legislature has determined the severity. The objective facts of this case support that determination. To make demands of people accompanied by threats, which are then carried out in circumstances causing fear and terror in the victims, is serious and grave criminal conduct. There are a number of factors which aggravate their gravity -
·Your conduct in making demands over the telephone and making threats to Messrs Tasevski and Gligorieva and other members of the family was over a period of some five and a half months.
·Your threatening conduct was backed up by action in the form of damage to a motor vehicle and the discharge of a firearm on two days resulting in damage to premises, but more importantly, putting those who were inside the premises in fear of their lives. This conduct provided overt support for your threats and caused Mr Tasevski's and Mr Gligorieva's families and others fear and concern.
·The discharge of a firearm at two premises on three separate occasions were extremely serious acts and fortunately, for you and others, did not cause any physical injury.
·Your actions were premeditated and planned, admittedly at the request of Mr Maccia, but, on any view, you were a free agent and not subject to any significant duress.
·Your whole conduct was terrifying to the victims.
Your conduct in agreeing with Mr Maccia to enter premises with the intent of stealing a large sum of money was, fortunately for you, nipped in the bud. The law treats such agreements and the incitement to commit such an offence as seriously as the commission of the offence, and that is demonstrated by the Legislature's enactment of the maximum terms being the same. Nevertheless, one has to view the particular offences in the light of their circumstances and whilst the preparation for such a serious crime in itself is a serious offence, I do accept that in the scale of things, Counts 8 and 9 can be viewed at the lesser end of the scale. You were indeed fortunate that the police were already on to Mr Maccia, and that the intervention by the police stopped the commission of a very serious offence, which may have resulted in injury to others. The carrying of a firearm sometimes leads to inadvertent or panic shooting, causing injury or death. The risk of unintended catastrophic consequences is always present when a firearm is carried in the perpetration of a crime. As I say, you are indeed fortunate the police moved in when they did. Each offence carries a substantial maximum. However, they can be viewed as the one transaction.
The gravity of the offence is the starting point in the sentence exercise. All told, there are nine offences. Separately and in totality, they represent grave criminal conduct on your part and are to be viewed seriously.
In fixing the appropriate sentence, the Court is obliged to not only apply principles of general deterrence but on behalf of the community, clearly denounce your criminal conduct. For reasons which I will state hereafter, I feel a degree of confidence that you will not transgress in the future. Nevertheless, the sentence must not only send a clear message to those who are like minded but also deter you from indulging in criminal conduct again.
The sentencing process requires the Court to not only take into account matters that may be generally described as aggravating matters, but also take into account matters personal to you and mitigating factors.
In my opinion, there are a number of mitigating factors which I take into account:
·You admitted your involvement in the criminal offences at the first opportunity, namely, when you were apprehended by the police and interviewed. You frankly admitted your offences.
·You have pleaded guilty at the first opportunity.
·You have expressed sorrow and seek to apologise to the victims, people you did not know. You have demonstrated remorse. A number of witnesses were called on your behalf, and I accept their evidence that you are truly sorry for what you have done. Your attitude to these offences is demonstrated by the fact that after your initial bail application failed, you chose to commence your sentence. I accept your remorse is genuine.
·You were not the instigator of the criminal conduct. This must be understood in context. You did not know your victims, let alone the reason why you were victimising them. The fact is that you were the perpetrator of Mr Maccia's vendetta. You did as you were requested and did so obviously without any thought. Nevertheless, you were the agent and not the instigator.
·You have been in custody since arrest on 19 June 2001 and have received threats to your life, resulting in your confinement in protective custody, which is a severe form of incarceration with little contact from others and, no doubt, a depressing environment. For reasons which will become apparent, any custodial sentence will be served in the same form of restrictive confinement.
Confinement has had a depressing effect upon you and this is supported by the report of Mr Ian Joblin, the forensic psychologist. This form of incarceration is relevant to the length of the sentence and is considered to be a factor which would justify a not insignificant reduction in the sentence. See R v Rostom (1996) 2 VR 97.
·You agreed with the authorities to give evidence against Mr Maccia despite threats to your life, and you have undertaken to this Court that you will do so in accordance with a statement, a copy of which has been tendered, and is to remain on the file. This cooperation will no doubt ensure that your sentence will be served in protective custody. There is no doubt that such a form of sentence is restrictive, as I have already observed, and I refer to the observations of Charles JA in R v Rostom, supra, at p.102.
The authorities establish that such cooperation is a matter which is relevant to the sentencing exercise. See R v Rostom, supra; DPP v Thomas (1998) 3 VR 188; and R v Duncan (1998) 3 VR 208. Again, it is a matter justifying a significant reduction in the sentence.
·Your prospects of rehabilitation are good. I place substantial weight on this consideration in determining the appropriate sentence. You have a supportive family. Members of the family gave evidence before the Court, and I accept their evidence, as to your remorse, their support for you, and the fact that you will be welcomed back into the family upon your release from prison and will be supported. Your old job will be available in the family business.
In addition to the evidence called in support, there is the report of the forensic psychologist, Mr Ian Joblin.
He noted that you were gullible, could easily be duped, particularly if finance was involved. You have a readiness to believe what you are told and can be easily misled. He emphasised that you had an obsession with money and that the inducement held out by Mr Maccia with respect to money was indeed a powerful one, but more importantly, he reported that you do not wish to have anything more to do with the criminal justice system and are determined to change your ways.
He concluded as follows:
"There is no doubt that leading up to 19 June 2001 Mr Medini had serious difficulties. He had deteriorated. He was involved in antisocial behaviour well out of his control. He felt he could not extricate himself from what was obviously a very serious antisocial environment. The reason he did not extricate himself not only related to his gullibility and his perception of being overborne but also by the very attractive ease with which he could obtain money."
After observing that you understood the issues involved in this proceeding, he had this to say:
"Interestingly, if he's not the subject of further difficulties from Mr Maccia he should be able to straighten out his life as he does seem to have experienced a strong deterrence not only from his travels through the criminal justice system but also from the threats and apparent bounty on him in custody."
I place some reliance upon that conclusion of Mr Joblin.
You are now aged 27 years. Your past history shows a headstrong young man who is at the crossroads. Your prior convictions, although relatively minor, show a contempt for the law. Although not alleged against you, you have two drink driving convictions which are noted in the report of Mr Joblin. Your prior convictions and your attitude to the law are relevant to the question of rehabilitation, and whether or not you will take the right path hereafter. The questions are, have you learned by your experience and are you prepared to discipline yourself, curb your excesses and start out afresh?
Amongst the character witnesses were your girlfriend and her father. Both are prepared to stand by you. Their evidence is of some weight on the question of rehabilitation.
Your plea of guilty has meant that much time and expense has been saved. Again, in accordance with the authorities, you are entitled to a not insubstantial reduction in your sentence, especially when the plea was made at the earliest opportunity, as was the case here. See generally observations of the High Court in Cameron v The Queen [2002] HCA 6, delivered 14 February 2002.
I have carefully considered the circumstances of this case, your record in the past, which could be put down to excesses of youth, and the fact that you told the Court that you had learned by your experience. I feel a degree of confidence that you now realise how stupid you were in indulging in the criminal conduct at the behest of Mr Maccia. I have a degree of confidence based on a number of factors, including your supportive family, girlfriend and her father, that you will choose the right path hereafter, and stay out of trouble.
It is my task, taking into account all relevant matters, both of an aggravating and mitigating effect, to determine what is an appropriate sentence which gives effect to the principles of totality and proportionality.
You are convicted on each count and sentenced as follows:
On Count 1, you are sentenced to a period of three years' imprisonment.
Count 2 is a variation of the circumstances in Count 1 and should be treated as part and parcel of the one transaction. On Count 2, you are sentenced to a period of one year's imprisonment to be served concurrently with Count 1.
On Count 3, you are sentenced to one year's imprisonment.
On Count 4, you are sentenced to two years' imprisonment.
On Count 5, you are sentenced to two years' imprisonment.
On Count 6, you are sentenced to two years' imprisonment.
On Count 7, you are sentenced to two years' imprisonment.
Counts 3 to 7 are to be served concurrently with each other and with Counts 1 and 2.
On Count 8, you are sentenced to three years' imprisonment.
Count 9 is a variation of Count 8 and is bound up with it and is really part of the same transaction. On Count 9, you are sentenced to a period of one year's imprisonment.
Counts 8 and 9 are to be served concurrently with each other and the sentences in respect to Counts 2 - 7 (inclusive).
I order that one year of Count 8 be served cumulatively with Count 1, and this results in a total effective sentence of four years.
This approach accords with the principles stated by Ormiston JA in DPP v Grabovac (1998) 1 VR 664 at 680. The end result, in my opinion, gives effect to the principles of totality and proportionality.
The head sentences have been substantially reduced by reason of the factors which I identified above.
It is now necessary to consider the minimum period of imprisonment. Under s.11(1)(b) of the Sentencing Act 1991, the Court is bound to fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which makes the fixing of such a period inappropriate. In my view, the general rule should apply and I will fix a minimum period.
It must be borne in mind that the minimum term is part of a sentence, and the Court is concerned, when fixing a minimum period, with determining what is the appropriate period that you should be imprisoned.
In R v Chan (1994) 76 A Crim R 252 at 255, the Court of Criminal Appeal had this to say with respect to the fixing of non-parole periods in this State:
"In the first place, the fixing of a non-parole period does not serve to determine the date upon which the offender will be released upon parole. It operates to fix a time when the Parole Board may itself decide if and when he is to be released on parole. Then in fixing a non-parole period the judge is selecting a period that must be served, having regard to all the circumstances of the offence. A purpose, but not the only one in fixing a non-parole period is to assist the prisoner's rehabilitation through conditional freedom. However, the non-parole period also has a punitive aspect.
As a general rule, there should not be too great a disparity between sentence and non-parole period".
It is observed that the Court is emphasising that the non-parole period is part of the sentence and must satisfy the general principle that the "punishment must fit the crime". However, as the Court said, there are other relevant factors, which include mitigation and rehabilitation, and they are to be taken into account. The same factors that are taken into account on the head sentence are again weighed carefully. The weight that should be attached to each particular relevant matter depends upon the circumstances of each case. As a general rule, the factors that are favourable to the prisoner are given more weight, i.e., the mitigating factors, the risk to the community upon release and rehabilitation. "The intention of the Legislature is that a minimum term is a benefit to the prisoner ..." - see Iddon and Crocker v. The Queen (1987) 32 Aust CR 315 at 325-6, and Bugmy v The Queen (1990) 169 CLR 525 at 530-32 and 536-38. However, the other factors may have their part to play. Again, it depends upon the particular case.
Further, the Court of Appeal has stated the general rule that there should not be too great a disparity between the sentence and the non-parole period. The Court has expressed itself in terms of a general rule, and hence, each case must be considered in the light of its own circumstances, and there may be reasons why the general rule should not be followed.
There are, in my view, a number of features about this case which justify a departure from the general rule. First, the mitigating factors. Secondly, that the victims of your appalling conduct need not fear anything from you and no doubt will be reassured by that fact. Thirdly, you have shown contrition and remorse, and as I have already stated, one should feel extremely confident that you will, with the support of your family and your girlfriend and her family, adopt the right path hereafter. I do not believe that you will pose a threat to the community upon your release.
The factor of rehabilitation is important and I accept that you have learned from your experience through the legal system and that you will take the opportunity to start afresh. Rehabilitation will be enhanced by conditional release, sooner rather than later. Indeed, Mr Parkinson, on behalf of the Crown, expressed a view, with which I agree, when he said,
"It (ie, the minimum period) may be in the light of his family and previously reasonably good character that he be given a period of parole which is longer than what others might be to keep him on the straight and narrow."
I think you will benefit from a reasonably lengthy period of parole, which will ensure a degree of awareness by you that transgression will land you very promptly back in gaol.
In my opinion, taking into account all matters, the appropriate minimum term during which the prisoner is not eligible to be released on parole is two years.
Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of imprisonment is to be reckoned as from 20 June 2001 when the prisoner was arrested. I declare that period to be 242 days inclusive of today's date, and I direct that the records of the Court note the said declarations.
Mr Parkinson, on behalf of Detective Senior Constable Ewan Giles, applied for an order that pursuant to s.464ZF(2) of the Crimes Act, the prisoner, Afrim Medini, undergo a forensic procedure in accordance with the Crimes Act 1958.
Section 464ZF(2) gives authority to a member of the police force to make application for an order directing a person to undergo a forensic procedure.
"Forensic procedure" as defined by s.46(2) means, "The taking of a sample from any part of the body". The samples can either intimate or non intimate, such terms being defined by the same sub-section. The power to make an order is confined to a situation where a person is found guilty of "a forensic sample offence", or of an offence "of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence". "Forensic sample offence" means any offence specified in Schedule 8 - see s.464ZF(1).
The convictions on Counts 8 and 9 are offences of conspiracy and incitement to commit a forensic sample offence, namely, aggravated burglary. I am satisfied that an order can be made in the circumstances of this case. The next question is whether an order should be made. I understood from Counsel that Mr Medini did not oppose an order being made.
The seriousness of the circumstances of Counts 8 and 9, Mr Medini's conduct in committing the other offences, and the prior convictions are such as to warrant the making of an order and further, the order is not opposed. I am of the opinion, given all the circumstances, including the background of Mr Medini, that granting the order is in the public interest.
Mr Medini, I am bound to inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted. What is sought in this application is the taking of blood and/or saliva samples. I think you can rest assured that if you do not oppose the taking of the sample and, indeed, you are ordered to provide it, it will be a relatively simple and pain free procedure.
I order that -
Pursuant to s.464ZF(2) of the Crimes Act 1958 Afrim Medini undergo a forensic procedure for the taking of blood and/or saliva samples in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the data base.
I will sign the orders.
Mr Medini, there are two other matters I just wish to raise with you. First of all, you have given an undertaking to this Court that you will give evidence against Mr Maccia, and you gave that undertaking on oath. It is noted and it is a matter that I have taken into account in determining the appropriate sentence in this case. It was a matter of some weight. I must warn you that if you fail to carry out that undertaking, in other words, if you refuse to give evidence against Mr Maccia, then steps can be taken to re‑sentence you. You must understand that.
Finally, Mr Medini, I have expressed great confidence in you. I think you have a very supportive family, supportive girlfriend and in-laws, or maybe future in-laws, and I do expect that you will learn by your experience. Some people may think I have been too lenient with you, but I really do believe that there is hope for you. Now do not let me down.
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CERTIFICATE
I certify that this and the 23 preceding pages are a true copy of the reasons for Sentence of Gillard J of the Supreme Court of Victoria delivered on 15 February 2002.
DATED this fifteenth day of February 2002.
Associate
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