R v Ogrizovic
[2010] VSC 414
•13 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1672 of 2009
| THE QUEEN |
| v |
| JOVAN OGRIZOVIC |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 3 August 2010 | |
DATE OF JUDGMENT: | 13 September 2010 | |
CASE MAY BE CITED AS: | R v Ogrizovic | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 414 | |
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CRIMINAL LAW – Manslaughter – Cause serious injury recklessly – Affray – Guilty plea – Youthful offender – Circumstances of offending – Specific deterrence – General deterrence – Good prospects of rehabilitation – Genuine remorse – Longer than usual parole period – Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R.A. Elston SC with Ms D. Piekusis | Office of Public Prosecutions |
| For the Accused | Mr S. Johns | Lewenberg & Lewenberg |
HIS HONOUR:
On 7 June 2010, you pleaded guilty to one count of manslaughter, one count of causing serious injury recklessly and one count of affray.
A plea was conducted on your behalf on 2 August 2010. The further hearing of that plea was adjourned until last Monday, 6 September 2010, for you to undergo some medical treatment, which I will deal with later.
Your co-accused, Ante Vucak, Tomislav Panic, Tomaslav Stevanja and Mladen Mrnjaus had pleaded guilty to the same charges as you on the same date and their pleas were heard on 2 and 3 August 2010. They were sentenced on 10 August 2010, as you would have been had it not been for your medical condition.
I adopt the outline of the facts which I set out in my reasons for sentence for the co-accused. I need only repeat that you fall to be sentenced for the part that you played in the attack at Digger’s Rest in the evening of 9 February 2009 which led to the death of Nathan Roberts-Nunan, the serious injury of Stephen Thorneycroft and the terrorising of the local community.
You were part of a group which came armed to the Digger’s Rest Recreational Reserve on that evening. You were armed with a small baseball bat. Although you were recruited somewhat late in the piece by a man called Lutze and travelled in his car to the scene, it turned out that you were towards the head of the group as it reached the other side of the cricket oval on that occasion. You were faced only with a few young men, including Nathan Roberts-Nunan and Stephen Thorneycroft.
Members of your group, namely Vucak and Smith, initiated the violence by use of a machete and two boning knives respectively. When Nathan Roberts-Nunan tried to get his steering lock to defend himself, as he was plainly entitled to do, you struck towards his head. Whether you struck his head or the steering lock, you did so with sufficient force to break the bat. I am satisfied that you were intending to strike him. I accept that your weapon was not the most dangerous used, but it was used, which places you into a different category than a number of your co-accused.
It is clear that the group you travelled in the car with, plus Vucak, were the most significant actors in this event. I accept, as you have stated, that you were involved in these events out of a misguided sense of loyalty and you believed that you were likely to encounter a group of 15 when you got to the other side of the oval.
You were born on 10 May 1990. You are the youngest of three children, having an elder brother and an elder sister. Your father was born in Croatia and is of Serbian/Croatian descent. He migrated to Australia with your grandparents in 1969. In 1984 your father travelled to Bosnia and married your mother Dragana. In 1985 your mother came to Australia. Your sister Asanka was born in 1986, your brother Steven in 1999 and you in 1990. You attended St Albans Primary School and Brimbank Secondary College where you successfully completed Year 11. You commenced Year 12 but left during the year. After leaving school you worked in a pizza shop, PG Pizzas in St Albans. You worked for two months at Day/Night Computers doing reception, reformatting and fixing computers. You then worked for two years with your father truck driving and as a removalist. Whilst on bail you have completed a warehouse logistics certificate relating to getting a forklift driving qualification.
You have no prior convictions. Your prospects of rehabilitation are good. You are young. You were 18 at the time of these events and you are now still only 20 years of age. You fall to be sentenced as a young offender but I am obliged to have regard to the serious nature of this offending.
You offered to plead guilty to manslaughter and recklessly causing serious injury in June of this year. You had already pleaded guilty to affray at the conclusion of the committal hearing. You had at that time, it should be interposed, been committed for trial for the more serious crime of murder. Discussions premised on a plea to manslaughter had taken place for some time and there had been some informal discussions as to what the result of this case might have been at the committal hearing. In all the circumstances I regard your plea as being at a satisfactorily early stage.
The question of your health had arisen, as I have already pointed out. You had been admitted to the Western General Hospital on 29 August 2009 in relation to a spontaneous right-sided pneumothorax. You underwent surgery for that and you were discharged on 8 September 2009. A more recent examination, one on 28 June 2010, revealed the reoccurrence of a small left-sided pneumothorax. You have had a further admission to hospital and you were treated and underwent a further operation in relation to your recurrent haemothorax. You are currently not on medication, there being no medication which can be prescribed to control the condition. You are regarded as having satisfactory health in this regard when both lungs are expanded.
It follows, however, that you have the prospect of a reoccurrence of the pneumothorax. That is something that will have some impact on your experience in custody. When this condition occurs it causes sharp pain in your chest and back. You have to use a Ventolin inhaler in these circumstances. It is something that will have an effect, although one that is hard to calculate, on the manner and circumstances in which you will serve your sentence and the effect the sentence will have upon you. I have taken such matters into account. It is not a matter of significant consequence.
It was urged on me on the plea, and I have already found, that your prospects of rehabilitation were good. They are good because of your youth, your education, your lack of prior conviction, your lack of any subsequent involvement with the authorities, the strong family support that you have, your work history, your guilty plea, a finding that I would make that you are remorseful for your involvement in these events, that you have completed your forklift driver's course whilst on bail, you have kept the strict bail conditions and the report of Mr Patrick Newton, a forensic psychologist, which I will return to in a moment.
Before turning to Mr Newton I note that I did receive on the plea some references on your behalf which were positive about you, and in particular your prospects of rehabilitation. They were from your aunt Vukosava Kmecko, a family friend Victoria Abela and two other family friends, Raylene Wilson and Lynette Steele.
In relation to the question of remorse, you have shown your remorse for the serious consequences of your offending from the time that you were first interviewed by the police. I proceed to sentence you as I have sentenced all of the young men involved in this exercise, on the basis that the death of Nathan Roberts-Nunan and the serious injury incurred by Stephen Thorneycroft were the unintended consequences of your offending, but nonetheless consequences for which you as part of the group are obliged to take responsibility.
The findings of Patrick Newton, forensic psychologist, in his report dated 29 July 2010 which was tendered on the plea, are best set out under the heading of “Opinion” in paragraph 28 of that report. He said this:
“Mr Jovan Ogrizovic is a 20 year old man who participated in a psychological assessment in connection with the forthcoming court appearance. On the basis of a comprehensive evaluation of Mr Ogrizovic's current mental status, a review of his personal history and detailed psychological testing, the following conclusions were reached:
(1) Mr Ogrizovic presents as mildly depressed and anxious. His depression is based on his feelings of guilt and shame for his offending, compounded by his pessimism about the future ramifications of these matters. His anxiety incorporates a combination of worry about his legal situation and quasi-traumatic recollections of the incident and the deep sense of fear and distress which he felt at the time.
(2) Mr Ogrizovic’s symptoms caused him some distress. They were also an indication of insight and form the foundation of his development of victim empathy and remorse
(3) Mr Ogrizovic’s emotional distress is sufficiently intense to warrant the diagnosis of an adjustment disorder with mixed anxiety and depressed mood by DSM IV criteria. This diagnosis encapsulates my opinion that his symptoms are primarily reactive in focus, rather than being the outworking of a primary mood or anxiety related disorder.
(4) Mr Ogrizovic remains an immature man with a sense of identity that is still in the progress of forming. He tends to adopt a dependent stance in his relationships as a way of compensating for feelings of inadequacy and insecurity. More concerning though is his tendency to affiliate with other disaffected young men, who he sees as being stronger and more worldly than himself, and to whom he has turned for guidance in the past. The combination of a dependant inner personal style and an antisocial affiliation is central to his offending, and I would like to see it addressed through the provisions of structured intervention at an early juncture. Mr Ogrizovic’s thought processes are normal, he is not psychotic and his capacity for moral reasoning and reality testing is not impaired. He is estimated to be of at least average intelligence and this gives him a good prospect, all other things being equal, of benefiting from further education and rehabilitation.”
Those findings are reasonably optimistic as to what the future holds. It does give some insight into the fact that this offending is offending which took place in the presence of others and was dependent on the inter-reaction between you and others. It cannot be avoided, however, that at the end of the day, this offending was very serious. As a result of an incident what became and is reasonably described as “mob violence”, one young man is dead and another young man has suffered extremely serious injury.
On Count 1, the count of manslaughter, you are sentenced to be imprisoned for five years and three months.
On Count 2, the count of cause serious injury recklessly, you are sentence to be imprisoned for two years and six months.
On Count 3, the count of affray, you are ordered to be imprisoned for 15 months.
I order that nine months of the sentence on Count 2 be served cumulatively upon the sentence on Count 1.
For reasons that I have expressed in relation to the sentencing of your co-accused, I did not regard it as necessary to accumulate any of the sentence on Count 3, and that will be served concurrently with the sentences on Count 1 and Count 2. The total effective sentence is six years. I fix a non parole period of three years and six months before you are eligible for parole.
I indicate and state, pursuant to s 6AAA of the Sentencing Act, that had it not been for your plea of guilty, I would have sentenced you to be imprisoned for a total effective sentence of seven years, six months, and a non parole period of five years and six months.
I further record that 16 days have already been served pursuant to this sentence, and I make a declaration that those days have been served. I order that that declaration and its details be entered in the record of the Court, and I order that my statement as to the sentence I would have imposed pursuant to s 6AAA be recorded in the records of the Court. Did I make orders in relation to retention?
MR ELSTON: There were retention orders sought and made on the last occasion, sir.
HIS HONOUR: I simply note that I have already made the orders for retention of the DNA sample and an order for - - -
MR ELSTON: There will be an application in relation to forfeiture order and disposal orders in relation to items upon the plea of the last three.
HIS HONOUR: Yes, all right. I will subsequently consider the question of disposal, but that is not a matter that is going to worry you, I suspect, Mr Ogrizovic.
MR ELSTON: As Your Honour pleases.
HIS HONOUR: Anything else, gentlemen?
MR JOHNS: Nothing, Your Honour.
HIS HONOUR: Yes, thank you.
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