R v Memedoski and Doyle
[2013] VCC 2025
•9 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-13-00155
CR-13-00153
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Lejla Memedoski and Liam Doyle |
---
JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2013 | |
DATE OF SENTENCE: | 9 December 2013 | |
CASE MAY BE CITED AS: | R v Memedoski & Doyle | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2025 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Dickie | OPP |
| For the Accused Memedoski For the Accused Doyle | Ms Healey Mr Lawrence | Victoria Legal Aid Doogue O’Brien George |
HIS HONOUR:
1 Ms Memedoski, you have pleaded guilty to the offence of incitement to assault. The offence has a maximum penalty of five years' imprisonment.
2 Mr Doyle, you have pleaded guilty to the offence of attempted aggravated burglary. This offence has a maximum penalty of 20 years' imprisonment.
3 The prosecution has provided a summary of the offending. It is Exhibit B in these proceedings. It is not my intention to repeat that summary. It will be attached to these remarks.
4 Both of you need to understand that you have been involved in serious criminal offending.
5
Ms Memedoski, you first met Mr Doyle, Mr Tondut and Mr Moore at a
McDonald’s restaurant in the early hours of the morning of 29 August 2012. Within a short time you had complained to these men about the behaviour of your ex-boyfriend, Mr James Moorby. There was a conversation about going to his address to assault him. You encouraged that course, taking the men to the address and pointing out the front door of his flat. You remained close by when Mr Doyle and Mr Tondut went to the front door and tried to force their way into the flat. Clearly you understood their intention was to try and assault Mr Moorby; you had incited them to that course. They would not have located Mr Moorby without you taking them to him.
6 Mr Doyle, you did not know Mr Moorby and yet you were prepared to attend at his flat and try to force your way inside with the intention of assaulting him. Fortunately, you were unable to enter and you retreated when Mr Tondut’s arm went through the glass in the doorway. Your behaviour in trying to force your way into the house is very serious offending. It must have been a terrifying experience for the victim. In a case of this type, where you attend at someone’s address with the purpose of assaulting them, and in pursuit of that purpose you try to force your way into their home, general deterrence, punishment and denunciation are recognised as central aspects of sentencing.
7 In determining the orders to make in this case I must, of course, take account of the matters in mitigation and the matters relevant to rehabilitation. I will discuss these matters now.
8 Ms Memedoski, you are not charged with the offence of attempted aggravated burglary and this is a significant point of difference between you and your co-offenders. That difference should be reflected in the sentence I impose.
9 Even though I regard your offending as a serious example of incitement, there are compelling reasons why I should make an order that focuses on your rehabilitation rather than upon general deterrence, punishment and denunciation.
10 First, you are a young woman with no prior convictions. Rehabilitation is an important sentencing consideration for the young offender, especially the young offender with no prior convictions. It is to your credit that, notwithstanding the difficult family circumstances identified in the report of Carla Lechner, clinical and forensic psychologist, you completed your secondary schooling and endeavoured to maintain employment thereafter.
11 Secondly, you entered an early plea of guilty. You were originally charged with aggravated burglary and then an alternative charge of attempted aggravated burglary. You pleaded not guilty at the committal. After the committal an indictment was prepared alleging the charge of incitement to assault and you pleaded guilty to that charge on arraignment at the Directions Hearing in this court in July. Your plea of guilty means the victim has not had to give evidence at a trial and has saved the community the costs associated with a trial. I am also satisfied that your plea of guilty is an indication of your genuine remorse.
12 Thirdly, although your offending cannot be excused, there is an explanation as to why a young woman without prior history would behave in the way that you did on this evening. Ms Lechner provides a summary of your circumstances at the time -
“She fell unexpectedly pregnant and, although desirous of a termination, she experienced immense grief after the event, this being compounded by the simultaneous loss of relationship with the father of the unborn child. Ms Memedoski became destabilised and in the absence of social supports, she reacted in a self-destructive manner by drinking and associating with people she did not know. The offending occurred in this context.”
13 Ms Lechner’s report indicates that your rehabilitation is likely to be facilitated by an involvement in treatment supports; I agree with that assessment. In her report Ms Lechner says this:
“Ms Memedoski gives a history of a disrupted and disturbed childhood and adolescence. She reports that she was previously diagnosed with ADHD and prescribed stimulant medication”.
Ms Lechner does make a provisional diagnosis but concedes that the case notes from your recent admission to the Alfred Hospital would be helpful in elucidating any mental health issues. She says that you would be assisted by ongoing monitoring of your mood state, “in addition to attending for counselling supports that assist with developing mood management strategies.”
14 Ms Memedoski, given the nature of your offending I am unable to accede to your counsel’s submission that you be released on an adjourned undertaking with a general condition that you attend upon “Headspace” for ongoing support. The serious nature of this offending needs to be marked by a more significant order. Given the matters raised on your behalf, it would be appropriate to release you on a Community Corrections Order with conditions that are designed to assist your rehabilitation. I will explain the full terms of the order after I have addressed your co-offender.
15 Mr Doyle, you are charged with a more serious offence than Ms Memedoski. As the prescribed penalty confirms, the offence of attempted aggravated burglary is regarded as a very serious offence. However, considering the matters in mitigation and relevant to your rehabilitation, I have determined that you should also be released on a Community Corrections Order.
16 You are still a young man and entitled to the weight that should be given to rehabilitation as a sentencing consideration. You have no prior convictions. A number of very positive character references have been tendered on your behalf. They speak of a responsible, hard working young man whose offending is totally out of character. For the last four years you have worked for the Department of the Environment and Primary Industries as a seasonal project fire fighter. I accept your counsel’s submission that your work involves a positive contribution and service to the community.
17 Mr Doyle, you should never have become involved in this offending. On the night in question you had far too much to drink. I am satisfied that your level of intoxication effected your normal sound judgement. This does not excuse what you have done but it does explain why someone of previous good character would do something totally out of character. It is not my role to lecture you but I think it is appropriate for me to say this, that in future if you are going to drink alcohol, you should do so in a responsible and measured way. You have been able to call on your previous good character to assist you in this hearing. Should there be further offending, and alcohol would most likely be the cause given your sensible behaviour normally, you will find a future court much less forgiving than I am prepared to be today.
18 I accept that you should also be given credit for your plea of guilty. It did not come at the earliest point in the process but it has avoided a trial and the need for the victim to give evidence and I accept that you are remorseful for what you have done.
19 I am satisfied that you have excellent prospects for rehabilitation.
20 Mr Doyle, notwithstanding the serious nature of your offending, I am satisfied that your relative youth, your acceptance of responsibility, your previous good character and your excellent prospects of rehabilitation make a Community Corrections Order the appropriate order in this case. Your order will be different to that of Ms Memedoski’s. It will be longer in terms of time and will require you to perform an appropriate amount of community work. The differences in the orders reflect the differences in your offending behaviour and the penalties that attach to those differences.
21 Mr Doyle, your counsel has argued for an Order without conviction. He relies on the provisions contained in s.8(1)(b) & (c) of the Sentencing Act1991. He submits that your previous good character and the impact of recording a conviction on your employment prospects are crucial in arguing for a non-conviction order. There is no doubt that the recording of a conviction is a particular marking by a court of the serious of offending behaviour. As I understand the position in relation to your employment, the recording of a conviction will be one matter, among others, that your employer will consider in determining whether you can continue in your role as a fire fighter. Avoiding a conviction may help you retain that employment.
22 Mr Doyle, I have decided notwithstanding the seriousness of the offending that I should allow you to avoid a conviction. As I have already said you have no prior convictions, you are of previous good character, have served the community well over the last four years as a seasonal fire fighter and have excellent prospects for rehabilitation. Those prospects are assisted in my view if you are able to continue in your role as a fire fighter.
23 Ms Memedoski, having decided to avoid convicting Mr Doyle, it is appropriate that I also make a non- conviction order in your case.
24 Ms Memedoski and Mr Doyle , would you both please stand. Ms Memedoski, the charge is proved against you and you will be released on a community corrections order. The order will last for a period of nine months. You are required under the terms of the order to attend an induction appointment at Carlton Community Corrections Service at 444 Swanston Street, Melbourne before 4.00 pm on Wednesday 11 December 2013. The order has special conditions requiring you to undergo -
· treatment and rehabilitation (including testing) for drug abuse and dependency;
· treatment and rehabilitation (including testing) for alcohol abuse and dependency; and
· mental health assessment and treatment.
25
You can be seated there. Mr Doyle, the charge is proved against you and you will be released on a community corrections order. The order will last for a period of 15 months. You are required under the terms of the order to attend an induction appointment at Morwell Community Corrections Service at
25 Ann Street, Morwell before 4pm on Wednesday 11 December 2013. The order has special conditions requiring you to –
· perform 240 hours of community work;
· undergo treatment and rehabilitation (including testing) for alcohol abuse and dependency; and
· undergo mental health assessment and treatment.
26 Mr Doyle, I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. For the purpose of undergoing that procedure you must report to the Officer in Charge of the Moe Police Station during the four week period commencing 28 days after today’s date. If you fail to co-operate in the taking of the sample, the police may use reasonable force to obtain it. This order is made pursuant to Sections 464ZF(2) and 464ZF(2)(A) of the Crimes Act 1958. I make the order for the following reasons; the seriousness of the offending, the order is in the public interest and the order is consented to.
---
Attachment 1:
Indictment No: C12609663 and C1208686
Court Reference: CR-12-02163, CR-13-00153 and CR-13-00155
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. BENJAMIN MICHAEL SHANE TONDUT, LIAM RORY DOYLE and |
| Date of document: | 12th of August 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions | Solicitor’s code: 7539 Reference: 1205143, 1204789 and |
- On the 28th of August 2012 Liam Doyle, Benjamin Tondut and Jamie Moore had a 'night out' in Melbourne. They had drinks at various places and ended up at a McDonald's restaurant in the early hours of the 29th of August.
- That's where they met Lejla Memedoski, for the first time. They all got into a taxi.
- While they were in the taxi, Lejla Memedoski started talking about her ex-boyfriend – James Moorby. She was complaining about something that her ex-boyfriend had done[1]. There was conversation in the taxi about going to James Moorby's place and assaulting him. Lejla Memedoski, Liam Doyle and Benjamin Tondut were involved in this conversation.
[1]Jamie Moore states that Lejla Memedoski was “whinging about her ex-boyfriend and him not being there when she had a miss carriage” (depositions page 86 paragraph 4)
- Ms Memedoski gave the taxi driver the address to her ex boyfriend's place. They arrived at Mr Moorby's address at about 7am on the 29th of August 2012. They all got out of the taxi.
- Lejla Memedoski showed Mr Tondut and Mr Doyle[2] the front door of Mr Moorby's flat. The front door is not in clear view of the street. To see it, you have to go through a gate, then walk up an alleyway, then open a second gate to see the door to the flat. She pointed the front door out.
[2]Jamie Moore's evidence at the committal was that Tondut and Memedoski went “inside the front gate” depositions page 32.25
- Mr Tondut and Liam Doyle went up to the front door[3]. The door was banged on, and Mr Moorby came down to answer it.
[3]Record of Interview of Mr Doyle ROI 18; 87
- Mr Moorby opened up the door a small way. Mr Tondut said to Mr Moorby something along the lines of “...we've got a big problem...do you know Lejla?” Mr Mooby said he did.
Attempted aggravated burglary – TONDUT and DOYLE
- Both Liam Doyle and Ben Tondut then tried to force the door open[4]. Mr Moorby struggled to keep the door shut while Ben Tondut and Liam Doyle tried to push it open. While trying to get the door open, Mr Tondut broke a glass pane in the door, cutting his arm. Mr Doyle and Mr Tondut then ran away.
[4]Committal evidence of Moorby depositions page 13.17; 14.4
- After Ben Tondut cut his arm and ran away, Mr Moorby came out of the flat. He passed Lejla Memedoski outside[5]. She went into the flat and grabbed some some toilet paper – to deal with the cut to Mr Tondut's arm (the prosecution says). Mr Moorby went back inside and kept her inside the flat until the police came.
[5]In the alleyway, outside of the courtyard to the flat – committal evidence of Moorby – depositions page 23.12.
- Police arrived at the flat soon afterwards. Lejla Memedoski was arrested and taken to the St Kilda police station.
Interviews
- At about 2pm on the 29th of August 2012, the police interviewed Lejla Memedoski. That interview was recorded. During that interview, she told the police that
- she was on her way to a bar when she met three men
- she was drunk
- they all went to her ex-boyfriend's place
- she thought the “boys” wanted to “scare” her ex-boyfriend[6]
- these boys didn't know her ex-boyfriend[6]Lejla Memedoski stated in her record of interview that she met men who later went with her to her ex boyfriend's house to – and that the men went there to “scare” her ex boyfriend.
She was asked why it was, that the boys would be going to scare him, if they didn't know him. She said “because he forced me to get a termination” (ROI 70)
She said that when she got to the address, she was told to wait outside. And she tried to catch a cat. Then she saw one of the guys come out with blood on his arm (ROI 16)
- On the 12th of September 2012 Liam Doyle was interviewed by police. That interview was recorded. He told the police that
-he and Ben Tondut had been out in Melbourne when they met up a girl
- he, Ben Tondut and Jamie Moore caught a taxi out to St Kilda with this girl
- the girl got upset about how her ex-boyfriend had treated her (ROI 61)
- he wasn't present when any discussion was held about what was going to happen at the 'ex boyfriend's place – they had stopped at a bottle shop along the way and the others 'must have organized' that when he wasn't there (ROI 68)
-they went to the girl's ex-boyfriend's place
-he was with Ben Tondut when Ben knocked on the door, “Right by the door” (ROI 18; 87)
- after the door was knocked on, he walked away
- he heard a smash and went back towards the door where he saw Tondut, at the door, bleeding (ROI 96 – 101)
He told the police that he didn't try to open the door or get inside (ROI 126 – 127)
- On the 12th of September 2012 Benjamin Tondut was interviewed by police. He stated
- He, Jamie Moore, Liam Doyle and Lejla Memedoski went to the victim's address (ROI 23)
- At the victim's house, he put his hand through the window, trying to get in, and when the victim slammed the door, he pushed the window (ROI 23)
- When he gets a bit drunk, he snaps really easily. If he drinks, it lowers his perception of being able to handle himself.
Incitement to assault – MEMEODOSKI
- Ms Memedoski incited Mr Doyle and Mr Tondut to assault James Moorby. She encouraged them to do so, by taking them to the address, then pointing out the front door to his flat. After pointing out the door, she stayed close by..
Pre-sentence detention
- None of the accused have spent any time in custody by way of pre-sentence detention.
Victim impact statement
- To be advised
Ancillary orders
- A forensic sample retention order will be sought in relation to Mr Tondut.
- A forensic sample order will be sought in relation to Mr Doyle.
Maximum penalties
- Attempted aggravated burglary – 20 years
- Incitement to assault – 5 years
0
0
0