R v Perzefi; R v Garubi; R v Tracey - [2014] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PERZEFI; R v GARUBI; R v TRACEY
[2014] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
26 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application by the Director of Public Prosecutions for permission to appeal against three sentences imposed in the District Court. The defendants and respondents, Perzefi, Garubi and Tracey, each pleaded guilty to two counts of aggravated blackmail. The defendants, with others, were joint participants in both offences. Perzefi also pleaded guilty to the offence of aggravated assault. Perzefi received a head sentence of five years and six months, with a non-parole period of three years. Tracey received a head sentence of three years and 10 months to be served cumulatively upon an activated suspended sentence of 12 months, with a non-parole period of two years and three months. Garubi was sentenced to remain in custody until the rising of the Court on the day of sentencing, upon which he was released. The defendants faced a maximum penalty for each offence of aggravated blackmail of imprisonment for 20 years. Perzefi faced a maximum penalty of three years’ imprisonment for the aggravated assault.
Whether the Director should be granted permission to appeal. Whether the sentences for aggravated blackmail called for a significant component on account of general deterrence. Whether there was a need for personal deterrence in respect of each of the defendants. Whether the sentences were so low as to shock the public conscience.
Held per Gray J (Kourakis CJ and Nicholson J agreeing at [1] and [48]):
(1) Application of the Director granted in respect of each defendant. The gravity of the offending called for a substantially lengthier term of imprisonment in each case (at [27]).
(2) The sentences imposed on each defendant were so low as to shock the public conscience (at [27]).
(3) The Judge made material errors when sentencing Tracey and Garubi. In sentencing Tracey, the Judge erred in his approach to a prior conviction of manslaughter (at [27]). It was an error to characterise Garubi’s conduct as an act of stupidity, and to proceed to release Garubi on the rising of the Court without hearing from the Director as to the appropriateness of such a course (at [27]).
(4) Sentences imposed on each defendant in the District Court set aside (at [45]-47]).
(5) Perzefi sentenced to nine years’ imprisonment with the sentence of 12 months’ imprisonment imposed by Chivell DCJ to commence on the expiration of the sentence of nine years’ imprisonment. A non-parole period of six years fixed in respect of the total period of imprisonment of 10 years (at [32]-[35], [45]).
(6) Tracey sentenced to eight years and six months' imprisonment, with the activated suspended sentence of 12 months’ imprisonment to commence on the expiration of the sentence of eight years and six months’ imprisonment. A non-parole period of six years in respect of the total period of imprisonment of nine years and six months fixed (at [41], [46]).
(7) Garubi sentenced to four years' imprisonment with a non-parole period of two years. Having regard to the time spent in custody, being more than 12 months, and having regard to the youth of Garubi, the sentence be suspended on his entry into a supervised three-year good behaviour bond (at [44], [47]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Hollitt [2006] SASC 280; R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82; Kim v Police [2011] SASC 221; R v Harkin (2011) 109 SASR 334; R v Elmir [2003] NSWCCA 192; Lovell v The Queen [2006] NSWCCA 222; Director of Public Prosecutions v Whiteside (2000) 1 VR 331, considered.

R v PERZEFI; R v GARUBI; R v TRACEY
[2014] SASCFC 12
Court of Criminal Appeal: Kourakis CJ, Gray and Nicholson J

KOURAKIS CJ: I would allow the appeal for the reasons given by Gray J. I would join in the orders proposed by his Honour.
GRAY J.
The Director of Public Prosecutions seeks permission to appeal against three sentences imposed in the District Court.
The defendants and respondents, Ludovic Perzefi, Dritan Garubi and John Michael Craig Tracey, each pleaded guilty to two counts of aggravated blackmail. The defendants, with others, were joint participants in both offences. Perzefi also pleaded guilty to the offence of aggravated assault.
Perzefi was sentenced to a head sentence of five years and six months with a non-parole period of three years. Tracey received a head sentence of three years and 10 months to be served cumulatively upon an activated suspended sentence of 12 months, producing a cumulative total of four years and 10 months’ imprisonment. A non-parole period of two years and three months was fixed. Garubi was a first offender and by the time the Judge came to impose sentence, had spent more than 12 months in custody. The Judge considered this was an appropriate punishment and determined that Garubi should remain in custody until the rising of the Court on the day of sentencing and he would then be released.
Background Facts
Between 2004 and 2006, two men had invested monies in a company associated with B. As a consequence, it was said that they had lost approximately $900,000.00. Apparently the two men were upset about the loss, however, they had not made any claim that any debt was owed to them by B. On 9 August 2012, one of the men met with B and told him that he was under pressure to obtain $100,000.00 of the money that had been lost.
On 30 August 2012, B received a telephone call from Perzefi who identified himself as “Frank Albanian”. He said he wanted to see B about some business and asked B to meet him that evening. B refused to meet, saying he did not know who Frank Albanian was.
On 31 August 2012, the defendants, together with five or six other men, attended business premises at Mitcham operated by B. Perzefi spoke to B outside his shop and then in a car park adjacent to the shopping centre. At this time, the defendants and the other men surrounded B. Perzefi informed B that he was something like the “head senior” of the Comanchero Motorcycle Club in Sydney. He claimed to have taken over a debt so that the debt was now owed by B to Perzefi. At the time, Perzefi was wearing a jacket, to which there appeared to be attached a Comanchero badge. Perzefi showed B a slip of paper which had words to the effect of “My dad is owed 600k and I am owed 750k” handwritten on it. The words “total 1.35 million” were also written on the paper. B was threatened that if he did not pay, he and his family, including his elderly mother, would be dealt with violently. Perzefi said he would take over B’s business and make life very hard for him. He threatened to kill B’s mother. Perzefi said words to B to the effect of, “I know where you live in North Adelaide” and “you can sell your home and pay us”. Perzefi demanded that some of the debt be repaid. He informed B that if no payment was made, B would be put in the boot of a car and taken away.
Perzefi demanded B’s car and B handed the keys to Tracey. The vehicle was later driven away. Tracey provided B with a phone number to contact him. Perzefi told B to contact “Tee” on that number to work out payment of the money. B was further threatened that if payment was not made, the men would return to his business and take his property.
Some days later, Perzefi, Tracey and two other unidentified men went to B’s business premises, but B was not in attendance that day. By this time, B had reported the offending to the police and an undercover operation had commenced. Three undercover police officers played the part of associates of B. On 7 September 2012, B contacted Perzefi by telephone. The call was recorded. In the course of the call, Perzefi made a reference to B owning a house worth $1.5 million. Repeated references were made concerning B’s children and of Perzefi coming to B’s residence. B was further threatened that if the money was not paid, “the boys” would come and “destroy everything in [his] life”.
On 9 September 2012, B made a further telephone call to Perzefi in response to a missed incoming call from Perzefi. During this call, Perzefi repeated his threat to “come and visit you with my boys”, adding that they would come at night and put him in the boot of a car.
On 10 September 2012, an undercover police officer, using B’s mobile telephone, attempted to engage Perzefi in conversation. Perzefi refused and insisted on speaking with B. Shortly thereafter, Perzefi contacted B by telephone. B missed the call and called Perzefi back. Perzefi threatened to put him in a coma. The undercover police officer then spoke with Perzefi to discuss the payment of cash in exchange for the return of the vehicle. On 12 September 2012, further negotiations occurred and by 13 September 2012, it was arranged between the undercover police officer and Perzefi that a payment of $20,000.00 would be made in exchange for the return of the vehicle.
On 13 September 2012, telephone calls were made between an undercover police officer and Perzefi to arrange a meeting which ultimately took place at a Café in North Adelaide. The undercover police officers were in attendance at the Café with the $20,000.00 cash. Perzefi and Garubi were in the vicinity of the café and Tracey was bringing B’s vehicle. A conversation took place between Perzefi and the undercover police officer, in the course of which Perzefi represented himself as having 700 Comanchero members behind him and the capacity to arrange for someone to shoot B.
At one point during the conversation, Perzefi had a handheld electronic device and moved it around the body of the undercover police officer, asking if he had anything on him. Perzefi directed the cash to be handed to Garubi, who admitted that he then handed it to a third party who disappeared. The cash has not been recovered. After the deal had been concluded, Perzefi wiped a glass he had been handling, presumably to remove fingerprints. Following the handing over of the money, Perzefi walked to a motor vehicle being driven by Tracey and, at that time, the defendants were arrested.
On 31 August 2012, following the offending at Mitcham, the defendants and a number of men proceeded to business premises at Evandale. Shortly after 7.00 pm, S was closing his business at Evandale. The defendant and the other men arrived in two motor vehicles. Perzefi, Tracey and Garubi entered the premises. S left the premises and walked to a pizza shop, where others were present. Perzefi, Tracey and Garubi followed and made threats to S in the pizza shop. Perzefi presented S with a piece of paper with the amount of $10,500.00 written on it. Perzefi pointed to a ring he was wearing and asked S whether he knew who he was. The ring bore a crest which S took to refer to a bikie club. Perzefi told S that the $10,500.00 was a debt owed to him and threatened S that if the debt was not paid, he would be shot or put into the boot of a car. The defendants encouraged S to return with them to his business premises. At those premises, S handed Perzefi $690.00, being the business takings of that day. At this time, Perzefi struck S to his neck. Tracey then took S outside of the premises to the rear car park and continued discussions as to how the debt could be paid. At this time, Perzefi made further threats of an indecent nature. S was informed that the debt had been purchased by Perzefi from a person that S understood to be a reference to one of the two earlier referred to men. S attested that he owed nothing to him. In the course of the discussion, Tracey agreed that S could have 14 days in which to gather the money. There was no further contact between the defendants and S prior to the defendant’s arrest on 13 September 2012.
The offending was well-planned. Both B and S were approached at their respective business addresses on the same day. At the time of the approach, in addition to the defendants, arrangements had been made for some five or six other men to attend. Perzefi had gathered information about B, including his residence and its value, and B’s family. Perzefi attended on 31 August 2012 with pieces of paper recording the suggested debts and showed this paper to both B and S. The defendants were in a position to take possession of B’s motor vehicle and to store it prior to its return. These were premeditated offences. As noted above, arrangements for the meeting on 13 September 2012 were discussed on a number of occasions. Perzefi had with him a device to check whether the undercover police officer was wearing a wire. Arrangements were in place for the cash, once handed over, to be immediately removed from the scene. The return of B’s vehicle was organised and the getaway vehicle was in place.
The Judge had regard to the antecedents of Perzefi and determined to impose one penalty for the three offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). His Honour imposed a head sentence of five years and six months’ imprisonment, having made a reduction of six months on account of Perzefi’s pleas of guilty. His Honour fixed a non-parole period of three years.
The Judge had regard to the antecedents of Tracey. His criminal antecedents included the offences of trafficking methamphetamine, possessing a firearm without a licence and manslaughter. The Judge described the circumstances of the manslaughter offence as “most unusual” and determined to ignore that antecedent when sentencing. The Judge invoked his powers under section 18A of the Sentencing Act and sentenced Tracey to a term of imprisonment of three years and 10 months, having made a reduction of eight months on account of his pleas of guilty. He directed that the sentence be cumulative upon an activated suspended sentence of 12 months’ imprisonment. The Judge then fixed a non-parole period of two years and three months, referable to the total amount of time to be spent in prison of four years and 10 months.
Garubi was a first offender and by the time the Judge came to impose sentence, he had spent more than 12 months in custody. The Judge considered that this was an appropriate punishment and determined that Garubi should remain in custody until the rising of the Court on the day of sentencing and he would then be released.
The Director’s Appeal
The principles applicable to appeals against sentence by the Director are well established. A court should grant permission only in the rare and exceptional case.[1] It is insufficient for a grant of permission for the Director to demonstrate that error has occurred. Permission should only be granted if it is necessary to enable the Court to establish and maintain adequate standards of punishment, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or if a sentence is so far below the appropriate range of sentence that it reflects an error of principle.[2] If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[3]
[1]    Everett v The Queen (1994) 181 CLR 295.
[2]    The Queen v Osenkowski (1982) 30 SASR 212, 213.
[3]    R v Nemer (2003) 87 SASR 168, 172.
The defendants faced a maximum penalty for each offence of aggravated blackmail of imprisonment for 20 years. Perzefi faced a maximum penalty of three years’ imprisonment for the aggravated assault.
This Court has identified at least three aspects of blackmail which affect the assessment of the gravity of the offence. They are the nature of the plan, the nature of the intended harm and the degree of distress occasioned by the offending.[4] In the present proceeding, the Director drew attention to the particularly well organised plan and the fact that repeated threats of violence were made, those threats being reinforced by the presence of the group of men, as well as Perzefi’s assertions that he was associated with the Comanchero Motorcycle Club. The Director also drew attention to the victim impact statements of B and S and submitted that it was plain that although there had been little physical harm, the offending had caused a significant emotional impact with lasting effects.
[4] R v Hollitt [2006] SASC 280, [21].
The Director submitted that a sentence for aggravated blackmail called for a significant component on account of general deterrence. It was said that the behaviour of the defendants, the standover tactics and the resorting to threats of violence to seek to obtain the payment of monies were totally unacceptable to the community. The need for the sentences to generally deter others from committing such offences was very great.
The Director submitted that the need for personal deterrence in respect of each of the defendants was also required. It was submitted that the defendants, apart from their late pleas, had not demonstrated any contrition or remorse and that, in these circumstances, it was difficult to conclude that their rehabilitation was underway. It was pointed out that the $20,000.00 handed by Garubi to a third party had not been recovered and that there had been no meaningful identification, let alone apprehension, of that third party. The identities of the men who supported the defendants at the premises of B and S have not been disclosed. The failure of the defendants, in particular Perzefi, to provide any information about their dealings with the two earlier referred to men or their planning for the offending militated against any suggestion that they had embarked on any meaningful rehabilitation.
The Director submitted that while this was not a case of a genuine debt being enforced by illegitimate means, the conduct of the defendants was in the nature of vigilante conduct. It was said that remarks of this Court in relation to vigilante conduct were apposite. Attention was drawn to this Court’s decision in Perdikoyiannis and to my remarks as follows:[5]
The courts must take deliberate, pre-meditated actions, conducted in concert with others, in circumstances of private retribution or vigilante conduct seriously. This is necessary for the preservation of the rule of law in our society, as such conduct is the "antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms". As Latham J observed in Willetts and Gurney:
" ... The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law's denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished."
[Footnotes omitted.]
White J relevantly observed:[6]
The violence involved in the respondents' conduct was an affront to the maintenance of the rule of law in the community. The respondents' conduct amounted to unbridled thuggery which a civilised society cannot tolerate. Those who are aggrieved by the conduct of others are not entitled to inflict or threaten physical violence as a means of enforcement of debts and obligations or as a means of effecting retribution. It is not open to subgroups in society to devise and implement means which are outside the law to achieve their own ends. The role of the criminal law in protecting the community requires that sentences for offences of the present kind reflect a firm denunciation of the conduct and a strong deterrent to its repetition.
[5] R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82, [44]; see also Kim v Police [2011] SASC 221, [24].
[6] R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82, [81]

Taking the law into one’s own hands undermines the manner in which our justice system operates.[7] The observations of Brooking JA in Director of Public Prosecutions v Whiteside in the Victorian Supreme Court, drawing on previous authority, are pertinent:[8]
Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on "rumour and innuendo", assaulted a fifth for "messing with kids", the Court of Appeal endorsed the judge's description of the "vigilante action" and said that it called for serious reaction from any court anxious to preserve the rule of law: Sheekey [1996] EWCA 385. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Re A-G's Reference (Nos 17 and 18 of 1994) (1995) 16 Cr App R (S) 418 at 421 ("That is what this case was about, people taking the law into their own hands. It has to be stopped"); Kennedy [2000] QCA 48 per McMurdo P ("vigilante enterprises of this kind are simply not tolerated by the community"); Demittis (unreported, Court of Appeal, Qld, No 122 of 1997, 29 May 1997) at pp 5-6 per McPherson JA ("The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community"); Brelsford (unreported, Court of Appeal, Qld, No 301 of 1995, 14 September 1995) at p 4 per McPherson JA ("Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice").
[7] R v Harkin (2011) 109 SASR 334, [42] (Gray and Sulan JJ) citing Director of Public Prosecutions v Whiteside (2000) 1 VR 331 and R v Sheekey [1996] EWCA Crim 415; see also R v Harkin (2011) 109 SASR 334, [92]-[96] (White J); see further R v Elmir [2003] NSWCCA 192, [20]; Lovell v The Queen [2006] NSWCCA 222, [70].
[8] Director of Public Prosecutions v Whiteside (2000) 1 VR 331, [24].
Counsel for the defendants each submitted that the Director’s application for permission should be refused. It was said that there was no range of penalties established for the offence of aggravated blackmail. Attention was drawn to what were said to be comparable sentences imposed in the past for suggested similar offending. It was argued that it could not be said that the sentences imposed were outside the sentencing discretion of the Judge and, more particularly, that it could not be said that the sentences were so low as to shock the public conscience.
In my view, the application of the Director should be granted in respect of each defendant. I consider that the gravity of the offending called for a substantially lengthier term of imprisonment in each case. I consider that the sentences imposed on each defendant are so low as to shock the public conscience. I also consider that the Judge made material errors when sentencing Tracey and Garubi. For reasons to be discussed later, in the case of Tracey, it was an error on the part of the Judge to ignore the earlier offence of manslaughter. In the case of Garubi, it was an error on the part of the Judge to characterise Garubi’s conduct as an act of stupidity. It was also an error on the part of the Judge to proceed to release Garubi on the rising of the Court without hearing from the Director as to the appropriateness of such a course. I would grant permission to appeal. It is convenient to now address each of the separate appeals.
The Appeals
Perzefi
When re-sentencing Perzefi, I have had regard to his involvement in the offending as discussed above.
At the time of the offending, Perzefi was aged 28 years. He was born in Albania and was raised by his parents with his siblings. His education was restricted to the year 6 or 7 level. When aged 12 years, he travelled to Greece seeking work and remained there for the next decade. From time to time, he returned to Albania and on one of those visits he met his wife to be. He came back to Albania on a more permanent basis in 2004 and in September 2005, they married. Employment opportunities were limited and they decided to emigrate to Australia. They initially settled in Canberra, where his wife’s family lived. At the end of 2008, they moved to Adelaide. There are three children of the marriage, born in the years 2007, 2008 and 2010. Material tendered to the sentencing Judge disclosed that Perzefi’s mother suffers from a heart condition and that his wife is receiving treatment for an anxiety and depressive state, particularly following his being taken into custody. While in custody, he has had difficulty with his dental health and he has struggled emotionally. His pleas of guilty were entered shortly before his trial was to commence. His criminal antecedents included a conviction in 2011 for committing an offence of aggravated assault, in respect of which a fine of $1,000.00 was imposed.
Perzefi provided no information that could lead to the arrest of the other men involved with the defendants in the offending against B and S, nor any information that would allow the apprehension of the third party who received the $20,000.00, or, for that matter, the recovery of the $20,000.00.
The offending against both B and S was very serious. In the case involving B, following the conduct on 31 August 2012, there was the ongoing telephone contact and, ultimately, the obtaining of the $20,000.00. If it had not been for the intervention of the police, it might be expected that matters may not have ended on 13 September 2012. B feared for his own safety and that of his family. His suffering in this respect is readily understandable. It is to be accepted that no violence accompanied the threats to B. The sentence to be imposed should reflect the need for both general and personal deterrence. I consider it appropriate to utilise section 18A of the Sentencing Act and to impose the one sentence for all of Perzefi’s offending. I see little to differentiate between the gravamen of the offending against B and S. I would treat Perzefi as a first offender. His criminal antecedents appear to involve relatively minor offending and this is the first occasion on which he has faced imprisonment. He has dependants, including three young children. In the circumstances, these matters carry more weight when determining an appropriate non-parole period.
Having regard to the foregoing, I would sentence Perzefi to a term of imprisonment of nine years. In arriving at this sentence, I have made a reduction of one year on account of his pleas of guilty.
Before fixing a non-parole period, it is necessary to give consideration to one further matter. On 31 October 2013, Perzefi was sentenced to a term of imprisonment of 12 months in respect of two firearm offences, being the offences of possessing a class H firearm without a licence and possessing an unregistered firearm. The other two offences of failing to secure a firearm and failing to store ammunition were the subject of recorded convictions, but no other penalty was imposed. A different Judge of the District Court, Chivell DCJ, sentenced Perzefi after the Judge imposed the sentence the subject of the present appeal. Chivell DCJ was not informed of this appeal. Chivell DCJ directed that the sentence of 12 months’ imprisonment commence on the expiration of the sentence imposed by the Judge, that sentence having been imposed on 20 September 2013. Chivell DCJ then reviewed the non-parole period imposed by the Judge. The result was the fixing of a non-parole period of three years and eight months, commencing on 13 September 2012.
The Director has sought permission to appeal against the sentence imposed by Chivell DCJ for the limited purpose of a reconsideration of the non-parole period fixed by Chivell DCJ in the event that this Court is to allow the Director’s appeal against the sentence imposed by the Judge. The application for permission to appeal against the decision of Chivell DCJ is out of time, however, in my opinion, it is both necessary and appropriate to grant permission to enable the Court to fix an appropriate non-parole period.
Having regard to the foregoing and, in particular, the fact that Perzefi has no criminal antecedents of particular relevance and has dependents including three young children, I consider it appropriate to fix a non-parole period of six years in regard to the total term of imprisonment of 10 years.
Tracey
Tracey is aged in his mid-thirties. He has been in a stable domestic relationship for many years. There are two children of that relationship, aged approximately seven and 13 years. It was said that Tracey became involved with Perzefi through Tracey’s earlier interest in purchasing a tattoo parlour business owned by a friend of Perzefi. Although the purchase did not proceed, Tracey and Perzefi became friends. Tracey suffered an injury and came upon hard financial times. He not only had his family to provide for, but also a disabled brother. It was against this background that he agreed to take part in Perzefi’s activities involving B and S. It was said that although Tracey did engage in a joint enterprise, the principal player was Perzefi and Tracey’s moral culpability was said to be less. Tracey’s criminal antecedents include drug offending, robbery, carry an offensive weapon, hinder police and manslaughter. His conviction for manslaughter was recorded in December 2005 and he was sentenced to four years’ imprisonment with a non-parole period of 18 months. In July 2011, he was sentenced for taking part in the sale of a controlled drug and for the offence of possessing a firearm without a licence. He was sentenced to a suspended term of imprisonment of 12 months with a non-parole period of eight months. His suspended sentence bond required him to be of good behaviour for three years. His present offending breached the terms of the suspended sentence bond.
Counsel for Tracey submitted that the role played by Tracey in the offending was less serious than that of Perzefi, citing the following observations of the Judge:
… I will sentence you on the basis that your role is less serious than Perzefi, and that you did act as a calming influence upon him in his threats made to “B” and “S”.
Counsel complained of the lack of reference to Tracey’s “calming influence” in the Director’s outline of argument and the overemphasis on Tracey’s repeated interactions with the two victims. A distinction was drawn between the two offenders in that Perzefi was to be the major beneficiary of the unlawful conduct, while Tracey was only being paid $100.00 per day for his part in the offending. It was submitted that Tracey’s approach differed from that of Perzefi in that he was less aggressive and sought to calm Perzefi down. I do not accept this submission. Tracey took advantage of and was complicit in the conduct of Perzefi, who was the leader. A “good cop, bad cop” routine can be just as threatening or intimidating, or even more so.
On the hearing of the appeal, the Director complained of the Judge’s approach to the manslaughter conviction. As noted above, the Judge said that he would ignore that matter. The manslaughter offence had involved Tracey being a party to the taking of a loaded firearm into a volatile setting. When sentencing for that offence, Nyland J observed:
… Your culpability is due to the introduction of a loaded gun into circumstances in which all three of you must have realised that it might be discharged and that was inherently, and objectively, a dangerous act, and one which might cause serious injury.
…
It is also an agreed fact that when the three of you set out from Tracey’s home just prior to the shooting you, Considine, and you, Tracey, did not know what to expect when you arrived at 3 Filsoll Street. Each of you was, however, aware that the rifle was in the car, that it was loaded and that it was primarily intended to be given to Troy Murray to protect himself as well as Rebecca Considine, and also the property of 3 Filsoll Street. It was, however, anticipated that the rifle might be presented in public by one, other or both of you in circumstances where it might be discharged and cause serious injury.
To my mind, it is also significant that Tracey was sentenced in July 2011 for several offences, including being in possession of a firearm without a licence. Further, the present offending involved Tracey being present when threats of violence and an act of violence took place. The manslaughter offence was a relevant antecedent and should not have been ignored.
Tracey’s conduct in breaching his suspended sentence bond is relevant in three respects. First, it is appropriate to revoke the suspended sentence. Second, it is a circumstance of aggravation with respect to the present offending. Finally, it suggests that a sentence should be imposed that will act as a personal deterrent.
I consider that Tracey should be sentenced to a term of imprisonment of eight years and six months. His criminal antecedents preclude the leniency that may attach to a person with no relevant antecedents. In arriving at this sentence, I have made a reduction of one year on account of the pleas of guilty, and contrition and remorse. As indicated above, the suspension of the sentence of 12 months imposed in July 2011 should be revoked. I consider it appropriate to fix a non-parole period of six years.
Garubi
Garubi was born in Albania and aged about 21 years at the time of the offending. His father, a public official at the time, was murdered in Albania. He came to Australia with his mother and two sisters. He attended school in Albania, and worked in a shoe factory and as a waiter. In coming to Australia, he has worked in a variety of jobs, primarily in the construction industry as a labourer. He had no criminal antecedents and an unblemished record.
It was submitted that Garubi’s criminal culpability was less than that of his co-offenders. It was said that the part he played in the offending was relatively minor. His role was that of providing a show of strength and as acting as a lookout. The difficulty with this submission is that he was the immediate recipient of the $20,000.00 on 13 September 2012 and he was the person who handed the cash to the third party, who then disappeared. Garubi has not provided any meaningful information to the police in regard to the identity of others involved, including the five or six men who attended with the defendants at the time of the offending, nor of any meaningful information as to the identity of the third party to whom he gave the cash. As earlier noted, the Judge was prepared to characterise Garubi’s conduct as an act of stupidity. To suggest that this characterisation reduced Garubi’s criminal culpability would be incorrect. He was a joint participant in the offending against B and S and was prepared to continue to participate and to act as an intermediary in the transfer of the $20,000.00.
It may be accepted that Garubi’s role was a lesser role than that of his co-offenders, however, he engaged in serious criminal offending. In the circumstances, I would impose a term of imprisonment of four years. In arriving at this sentence, I have made a reduction of 12 months on account of his pleas of guilty, and contrition and remorse. In fixing a substantially shorter head sentence than that imposed on the co-offenders, I have had particular regard to his youth and good record. I have also had regard to the lesser role he played in the criminal activities. In the ordinary course, I would have fixed a merciful non-parole period. However, Garubi has spent more than 12 months in custody. In this circumstance, I consider it to be inappropriate for Garubi to be returned to prison. On the other hand, I consider it to be entirely inappropriate for him to be released without parole and without supervision. In these unusual circumstances, I would impose a head sentence of four years, but suspend that sentence on Garubi entering into a three-year supervised good behaviour bond. I would fix a non-parole period of two years.
Conclusion
I would make the following orders in regard to the appeal concerning Perzefi:
-That permission to appeal be granted to the Director in respect of the sentences imposed by the Judge and Chivell DCJ and the appeals allowed.
-That the sentences imposed in the District Court be set aside.
-That Perzefi be sentenced in respect of the counts of aggravated blackmail and the offence of assault to the one sentence of nine years’ imprisonment.
-That the sentence of 12 months’ imprisonment imposed by Chivell DCJ in regard to the firearms offences be confirmed.
-That the non-parole period fixed by Chivell DCJ be set aside.
-That the sentence of 12 months’ imprisonment imposed by Chivell DCJ commence on the expiration of the sentence of nine years’ imprisonment.
-That a non-parole period of six years be fixed in respect of the total period of imprisonment of 10 years.
-That the sentence of nine years’ imprisonment and the non-parole period of six years be taken to have commenced on 13 September 2012.
I would make the following orders in regard to the appeal concerning Tracey:
-That permission to appeal be granted to the Director and the appeal allowed.
-That the sentence imposed in the District Court be set aside.
-That Tracey be sentenced to a term of imprisonment of eight years and six months in respect of the two offences of aggravated blackmail.
-That the suspension of the sentence of 12 months’ imprisonment imposed on 7 July 2011 be revoked.
-That the sentence of 12 months’ imprisonment commence on the expiration of the sentence of eight years and six months’ imprisonment.
-That a non-parole period of six years be fixed in respect of the total period of imprisonment of nine years and six months.
-That the sentence of imprisonment of eight years and six months and the non-parole period of six years both commence on 13 September 2012.
I would make the following orders in regard to the appeal concerning Garubi:
-That permission to appeal be granted to the Director and the appeal allowed.
-That the sentence imposed in the District Court be set aside.
-That the one sentence of imprisonment of four years with a non-parole period of two years be imposed for both offences.
-That, having regard to the time spent in custody, being more than 12 months, and having regard to the youth of Garubi, the sentence be suspended on his entry into a supervised three-year good behaviour bond.
NICHOLSON J: I would allow the appeal for the reasons given by Gray J. I would join in the orders proposed by his Honour.