R v Omerhodic
[2013] VCC 810
•15 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-13-00309
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GALIB OMERHODIC |
---
JUDGE: | Her Honour Judge Cotterell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2013 | |
DATE OF SENTENCE: | 15 May 2013 | |
CASE MAY BE CITED AS: | R v. Omerhodic | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 810 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr J. O'Sullivan | O’Sullivan & Ruffilli |
HER HONOUR:
1 Galib Omerhodic, you have pleaded guilty before me to one charge of aggravated burglary. The maximum penalty for that offence is 25 years imprisonment. You have further pleaded guilty to two charges of recklessly causing injury, and the maximum penalty for that offence is five years imprisonment, and finally, to one summary offence of wilful damage to property, and the maximum penalty for that offence is six months imprisonment or a fine of 25 penalty units.
2 The facts of this matter were opened by the prosecutor, and the summary of the opening was filed as Exhibit A on the plea and it will be exhibited to these sentencing remarks.
3 Your offending occurred in the context of an ongoing dispute with the family next door, the Zanellas, mainly over the Zanella family dogs whose repeated barking has irritated you and made your life difficult, as your two properties are adjoining and very close.
4 The incident which brings you before the court occurred on the evening that you had a gathering of your extended family at your home and you consumed an excessive amount of alcohol, which you said you do not usually do but this resulted in you acting in a way that was completely out of character.
5 You threw two rocks through the kitchen window of the neighbouring house. You then disappeared for a period of time. You were brought back by your son and you then entered the house of your neighbour after the neighbours had fled, entered their back door and locked the door after them to ensure their safety from you.
6 You broke the door down by force and entered, wielding a 20 centimetre stick. With that stick you struck Nathan Zanella, one of the sons of the family, causing swelling, bruising and a scratch, and you also scratched the chest of Jacquie Zanella, the mother of Nathan, with the stick you were holding during the struggle as she tried to intervene on behalf of her son.
7 This was a tarrying experience for the Zanella family, to be assaulted in their own home, and it is a disgraceful display of drunken aggression by you. The victim impact statements, which were filed by Jacquie Zanella and her son, Nathan, were tendered as Exhibits B and C, and they express the fear that they felt at having their home invaded and being attacked by you in the way I have described, and I take those matters into account.
8 I now turn to matters personal to you. You have no prior history, no criminal history, and it is clear that you are very much a family man. That is attested to by a number of letters that were tendered to me from your extended family, including your mother-in-law and father-in-law as well as by your daughter. They all demonstrate that you are a much loved member of the family, that you are very respected, you are hard working and you have always worked in the best interests of your family and I take those matters into account.
9 You came to Australia at the age of two, you eventually completed your education including a civil engineering diploma. You have had some interruptions to your employment, suffering from the rise and fall of various building companies given the vagaries of the economy, and that has caused you to undergo periods of unemployment during your life.
10 You developed a speciality as a building cost estimator, which has resulted in you having solid employment for years at a time and your last lengthy period of employment ended when the company went into liquidation, again, as I understand it, due to an economic downturn.
11 You were, it is important to note, employed during the period of your offending. You now have covered employment but more on a casual basis and you are doing work at home, as I understand, when it is available.
12 Your history of frequent change of employment has also revealed another side to your character, because you have shown yourself willing to take other jobs far below your qualifications to ensure the family income and you have done so for the sake of your family's security.
13 I further take into consideration that you have expressed remorse over what you did when you invaded the home of the Zanella family. You have expressed that remorse both to your family members and to your psychologist, as was attested to by a report written by Zelwin Lever, your psychologist. He speaks of your remorse and he also assessed you as suffering from chronic depression and anxiety due in part to childhood issues, but especially exacerbated by your significant financial pressures and work insecurity and, of course, it is clear that this offending occurred in the context of your continuing frustration with the barking dogs and excessive consumption of alcohol.
14 It is clear from those matters that I have just described that your behaviour on that night is completely out of character. I do accept that there has been a long term dispute over the dogs barking from the Zanella property, but nothing can excuse your behaviour. I denounce your conduct on that afternoon on behalf of the community, as I am required to do. Such actions of people taking the law into their own hands will not be tolerated by any civilised society.
15 I am also required to take into account general deterrence in sentencing you. That is, that others understand that such actions will have serious consequences, and I do that, however, also taking into account that this is not a normal aggravated burglary. It is not the type of aggravated burglary that one normally deals with in these courts. I also consider, given your prior character and your remorse, that you yourself do not need to be specifically deterred. I am satisfied that you are most unlikely to offend again.
16 I have also taken into account current sentencing practices and the range submitted by counsel for the Director of Public Prosecutions that a Community Corrections Order is within the range of sentencing options available.
17 I also take into account your plea of guilty at the early stage. I take that as being representative of your remorse, as well as sparing the complainants the ordeal of giving evidence and the community the expense of a lengthy trial.
18 Having considered all of those matters I have concluded that it is appropriate to release you on a Community Corrections Order which may address any issues that you may have in relation to alcohol or psychological matters. It will also give you the opportunity through some community work to contribute something to the community that you have offended against, and it will also allow you to continue to work and support your family as a useful participating member of the community as you have done in the past and up to this incident which has brought you before the court.
19 I have concluded that this path will benefit the community more than the imposition of a term of imprisonment given your particular circumstances. As I indicated, I will have you assessed for a Community Corrections Order. I will hopefully get that done today. I will sentence you as soon as I can and I will actually do the sentence when I have that confirmed.
20 In addition to that, I will make orders that you provide a sample which will be a scraping from your mouth for keeping on the database and I will also make a compensation order which is being sought on behalf of the Zanella family.
21 Thank you. So you are to attend at 1.45 today at the County Court for you appointment and I will sentence you at 3.30pm today. You can now leave the dock and your bail will be extended until 3.30pm.
22 What will your client's availability be in relation to community work?
23 ACCUSED: Saturday and Sunday.
24 MR O'SULLIVAN: Your Honour, he does work on weekends apparently but he is going to have to make himself available on one of those days to do community work.
25 HER HONOUR: Yes, you will have to make yourself available. I will send over the materials for your appointment and we will see you back here at 3.30pm.
26 MR O'SULLIVAN: As Your Honour pleases.
[Upon resuming at 3.30pm]
27 HER HONOUR: You will have to go in the dock while I just make the order, thank you. There is just one thing I am just concerned, and that is the compensation order. The claim by Comminsure. Why is this an insurance company claiming compensation?
28 MS GUESDON: I am assuming - I will just get it confirmed, that the insurance company must have paid out and they are getting reimbursed. Is that right?
29 HER HONOUR: But I mean that is what they are there for. I do not understand that.
30 MS GUESDON: I mean the insurance company has such a loss as a direct result of the accused's actions.
31 HER HONOUR: Is it normal that insurance companies claim this?
32 MS GUESDON: I have definitely seen it done regularly.
33 HER HONOUR: All right. I was just concerned about that. It seems that is their business. All right, I will make that now. Also I need to know the police station that he must attend.
34 MS GUESDON: Reservoir.
35 MR O'SULLIVAN: Reservoir.
36 HER HONOUR: Can I have an address?
37 MR O'SULLIVAN: Edwards Street, Reservoir 3073.
38 HER HONOUR: Right, thank you. Mr Omerhodic, if you would stand up for me, please. Having made my sentencing remarks this morning and having had you assessed for your suitability for a Community Corrections Order, I have now received a report which indicates that you are in fact a low risk offender and that you are suitable and willing for release on such an order. I am now going to sentence you.
39 On Charge 1, 2, 3 and charge 9 the summary charge, you are convicted and sentenced to a Community Corrections Order for a period of 12 months.
40 The order, I know you are aware of this, will include a condition which requires you to perform unpaid community work, and I am going to order that you perform 200 hours of unpaid community work over that period. Further, you will be subject to a treatment and rehabilitation condition in relation to your use of alcohol. That has been recommended and it is appropriate. Further, there is a condition that you undergo a mental health assessment as directed. So that will relate to your depressive issues that were raised in your psychological report, and then there is also a condition to allow for your referral to a violence intervention or other anger management program as is required. So they will recommend that if they feel that is required.
41 The order is one which if you were to breach it, either by committing further offences, or by failing to comply with either your work component or any of those counselling components, you would be breached, charge with a breach, brought back before the court, be dealt with again and re-sentenced. So I just want to impress on you it is most important that you comply with those orders.
42 In relation to the other orders that are being sought there is a s.464ZF order, which is that you submit for the taking of a sample, an intimate sample, and I order that you undergo that procedure. That is a procedure for taking a scraping from your mouth. I am satisfied that you should undergo that process and provide the sample, because the seriousness of the circumstances of the offending warrant the order, the order is not opposed and the granting of the order is in the public interest, and I further have to inform you that if at the time you are requested to provide that sample, if you do not give it willingly an authorised member of the police force may then use reasonable force to obtain that sample.
43 I think that is all. Finally, having considered the seriousness of the circumstances of the offence, I am satisfied that in all the circumstances the making of the order is justified and that is why I have made the order. Thank you.
44 Then the other order that I am making is an order for compensation and I order that you pay to Comminsure the sum of $1735.35, and further, that you pay to Giuseppe Zanella the sum of $100 compensation, which I understand is the excess amount in relation to his insurance policy.
45 So those are the orders. I have sentenced you, as I have, as I said, because of your prior character and your obvious remorse in relation to this matter. Now you must be very careful not to offend again. Thank you.
46 You can now leave the dock. Ms Guesdon, I did not ask you for any submissions in relation to the duration of the order, which occurred to me as I was actually reading it out.
47 MS GUESDON: Your Honour, I did not have anything to say on that.
48 HER HONOUR: Then I think that completes the matter and I have now signed the orders.
(See Crown Opening attached.)
---
0
0
0