R v Slifkas
[2019] ACTSC 40
•13 November 2018 and 4 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Slifkas |
Citation: | [2019] ACTSC 40 |
Hearing Dates: | 13 November 2018 and 4 February 2019 |
DecisionDates: | 13 November 2018 and 4 February 2019 |
Before: | Mossop J |
Decision: | See [34] and [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery in company – offender involved in opportunistic robbery of person walking home at night – plea of guilty to theft of car – obtaining property by deception – limited criminal history – some prospects of rehabilitation – sentence of imprisonment to be served by intensive correction |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT), s 24 Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 78 Criminal Code 2002 (ACT), ss 45A, 308, 310(b), 326 |
Parties: | The Queen (Crown) Victor Slifkas (Offender) |
Representation: | Counsel K McCann (Crown) D Lee (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gabbedy Milson Lee (Offender) | |
File Numbers: | SCC 25 of 2018 SCC 26 of 2018 |
MOSSOP J:
Introduction
After a trial before a jury the offender was convicted of aggravated robbery. The robbery was aggravated by reason of it being in company. The maximum penalty for aggravated robbery in company by joint commission via s 45A, contrary to s 310(b) of the Criminal Code 2002 (ACT), is 25 years imprisonment, 2500 penalty units or both.
Immediately prior to the hearing before the jury, the offender pleaded guilty to dishonestly appropriating property, namely a Toyota Camry motor vehicle, from a named person with the intention of permanently depriving him of the property. The victim of this offence was different to the victim of the aggravated robbery offence. The maximum penalty for theft contrary to s 308 of the Criminal Code is 10 years, 1000 penalty units or both.
The offender also pleaded guilty to a charge of obtaining property by deception. He did so in the Magistrates Court and was committed to this Court for sentence. The charge related to the sale of the mobile phone stolen during the aggravated robbery. The maximum penalty for an offence against s 326 of the Criminal Code is 10 years, 1000 penalty units or both.
Facts
Mr Slifkas borrowed a car from a person who I will refer to as UQ on 7 November 2014. It was due to be returned to UQ on 9 November 2014. On 9 November 2014, Mr Slifkas contacted UQ and asked if he could borrow the car for a further day until 10 November 2014. An arrangement was made to return the car at 3pm on Monday, 10 November 2014.
At about 12:10am on Monday, 10 November 2014, Mr Slifkas was a passenger in the car previously borrowed from UQ. As the car drove along the cul-de-sac of Riley Place in Chifley, the occupants of the vehicle saw a person who I will refer to as SS walking along with a mobile phone in his hand. The mobile phone was a Nokia Lumia smart phone. SS was enticed close to the car. Mr Slifkas held out his hand to greet SS. When SS responded by shaking his hand Mr Slifkas did not release it, allowing Stephen Kopec to grab his phone from him and assault him. Mr Slifkas then got out of the vehicle and assaulted SS. Melissa Bowman, a passenger in the vehicle, hit SS over the head with a glass bottle. Shortly thereafter, the occupants of the car got back inside the car. When the car drove back past SS, he threw a tin of paint at the car and the lid came off, causing white paint to be strewn over the car, inside the car and on the road.
Later, the smart phone was sold by Mr Slifkas for cash at a Cash Converters store. He attended there with his brother, Peter Slifkas.
The car borrowed from UQ was due to be returned on the afternoon of 10 November 2014. At some stage following the robbery of SS in the early hours of the morning on 10 November 2014, the offender said that he wanted to get rid of the car and was going to crash it. Mr Kopec said that he would get rid of the car. The car was ultimately found burning within an underpass in Kambah on 17 November 2014.
Victim impact
A victim impact statement was prepared by SS’s mother. That indicated that as a result of the offending conduct SS has become more withdrawn from his family and from society. It also resulted in him finding it harder and harder to go to work every day with him ultimately quitting his job. It affected his confidence and his financial circumstances. The victim impact statement indicates that these effects are continuing to date. It demonstrates the long-lasting effects upon a victim of spur of the moment offending upon him.
Objective seriousness
The offence of aggravated robbery occurred at night. It was directed to a person who was vulnerable because he was walking home in darkness after work. The offenders were in company and presented to the victim in overwhelming numbers. The offence was opportunistic and unplanned. No weapon was involved other than the bottle deployed by Ms Bowman. I consider the offending conduct in the mid range of objective seriousness for the offence of aggravated robbery.
The offence of obtaining property by deception is in the low range of objective seriousness for this offence having regard to the value of property.
The offence of theft is below the mid range of objective seriousness for the offence. While the value of the vehicle in question was not set out in any agreed facts, a car is a substantial item of property and the theft was made possible only by the abuse of the trust placed in the offender by its owner.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report. Mr Slifkas is currently 24 years old but was 20 at the time of the offending conduct. He was born and raised in Victoria, is one of eight children and described an unstable childhood due to his parents separating at times. His father died when he was 13 and his mother then left the children with Child and Youth Protection Services. Mr Slifkas advised that things did not work out with his foster family leading to periods of time in refuges and unstable accommodation. He reported maintaining supportive relationships with six of his seven siblings and this was verified by his brother.
Mr Slifkas reporting completing Year 9 at school. He also reported completing qualifications including a Certificate II in Cabinet Making and a Certificate in Electro‑Technology (a pre‑apprenticeship course for an electrician). Mr Slifkas reported last being in paid employment as a rural fencing contractor in Victoria in mid-2017. There is no evidence as to how long he was so employed or what his accommodation or other circumstances were during this time.
Mr Slifkas reported that alcohol and cannabis had been a factor in the current offence. He reported no further issues with alcohol consumption as an adult, but reported regular smoking of cannabis from the ages of 13 to 23 years, smoking up to 9g per week. He also reported regular smoking of methamphetamine from the ages of 18 to 23, using up to 1g per week. Understandably, having regard to this history, when, on 23 April 2018, the Drug Abuse Screen Tool (DAST-10) was administered upon the offender, it assessed the offender’s use of illicit substances over the last 12 months as involving a substantial risk and requiring assessment. Mr Slifkas has submitted several applications for rehabilitation facilities but has not yet been offered a place.
He reported being diagnosed with depression and anxiety and records available to the pre-sentence report author indicated that he had contact with Corrections Psychological Support Services.
Whilst in the Alexander Maconochie Centre (AMC), Mr Slifkas has completed a number of courses: the First Steps to Anger Management Program; the Alcohol Drug Awareness (harm) Prevention Training program; and the Peer Mentor Program. The pre-sentence report notes that Mr Slifkas failed to provide a sample for urinalysis on the date he was remanded in custody at the AMC and received a penalty of 28 days of non-contact visits.
Mr Slifkas stated he has accepted the jury’s verdict and appeared to accept responsibility for his actions. He acknowledged the impacts of his offending behaviour on the victim and indicated he wished to apologise to the victim for his actions.
Mr Slifkas has been assessed as being at a medium risk of reoffending. The author of the pre-sentence report notes that his risk may be further reduced if he continues to engage in interventions to address his illicit drug abuse, employment and maintains his mental health.
Criminal history
As an adult, Mr Slifkas has various convictions for failure to appear in court after a bail undertaking which were committed in 2015 and 2016 and one minor theft charge. [Redacted for legal reasons.]
Plea of guilty
In relation to the offence of aggravated robbery, he was found guilty by jury on 19 September 2018. He is not entitled to any discount on the sentence for this offence as a result. So far as the charge of theft was concerned, the offender entered a plea of guilty on the first day of the trial when arraigned on 17 September 2018. There was some utilitarian value in this plea. I will allow a discount of approximately 10% on the custodial sentence that I would otherwise have imposed. In relation to the charge of obtain property by deception, he pleaded guilty on 20 February 2018 in the Magistrates Court. I will allow a discount of 25% on the custodial sentence that I would otherwise have imposed.
Time in custody
The offender has spent 203 days or six months and 20 days in custody attributable to these offences including today.
Sentence for co-offender
The offender’s brother, Peter Slifkas, and Ms Bowman were convicted and sentenced for offences related to the robbery. Having regard to the circumstances and the lesser charges of which they were convicted, they received modest sentences. The most relevant co-offender is Mr Kopec. He pleaded guilty to aggravated robbery and was sentenced to two years and nine months imprisonment on 22 September 2016. He was sentenced for that offence along with a number of other offences which resulted in a total sentence of imprisonment of five years and five months with a non-parole period of two years and eight months. Mr Kopec had pleaded guilty to the offences.
Mr Kopec had been on conditional liberty at the time of the offending conduct being the subject to three good behaviour orders, one of which was associated with a suspended sentence. He also had a more serious criminal history than Mr Slifkas.
But for the plea of guilty, Refshauge J would have sentenced him to three years and eight months imprisonment. The sentence of two years and nine months represents a discount of 25% on account of the plea of guilty. As a result of being made concurrent with another sentence imposed at the same time, the effect of the sentence was to add 25 months to the overall sentence imposed.
The involvement of Mr Kopec in the aggravated robbery was similar to that of Mr Slifkas. I do not accept the submission put on behalf of the offender that his involvement was lesser than Mr Kopec’s. While Mr Kopec was responsible for grabbing the phone, the role played by Mr Slifkas in detaining the victim initially and then exiting the car and placing the victim in a chokehold was of equal significance in the joint commission of the offence.
Consideration
The offender is now 24 years old. At the time of the offending conduct he was 20 years old. Apart from the failures to appear in May and June 2016, the last offence for which he was convicted was committed in June 2015. There is evidence of drug use including methamphetamine use up to the age of 23. The drug abuse screening tool administered by the pre‑sentence report author indicated that his drug use needed a proper assessment. Having regard to his youth, acceptance of responsibility and his limited criminal history as an adult, there are at least some prospects of rehabilitation so long as his predisposition to abuse illicit drugs can be addressed.
The offending conduct was plainly serious. It was committed opportunistically upon a person who was vulnerable as he walked home alone from work in the middle of the night. It was committed by a group of people acting as a pack. The victim impact statement indicates that the offending conduct has had a very significant and long lasting impact upon the victim.
His more limited criminal history and the fact that he was not on conditional liberty at the time of the offending are the most significant features distinguishing his circumstances from those of Mr Kopec. Taking into account the sentence imposed upon Mr Kopec, I consider that the starting point on the charge of aggravated robbery is a sentence of two years and eight months imprisonment. As the matter went to trial there is no discount for any plea of guilty.
So far as the theft of the motor vehicle is concerned, the theft involved a breach of the trust placed in the offender by the owner of the vehicle who had lent it to him. While at the time of the aggravated robbery it might not have been his intention to not return the vehicle, the involvement of the vehicle in the robbery and it being covered with paint led to the choice by the offender and Mr Kopec to destroy it rather than return it. In my view, a sentence of imprisonment of one year is the appropriate starting point which is reduced to 11 months on account of the plea of guilty. While the offending conduct is temporally related, it is separate to the aggravated robbery.
On the charge of obtain property by deception, this relates to the disposal of the mobile phone taken from SS, the starting point is a sentence of four months imprisonment, reduced to three months on account of the plea of guilty.
Considerations of totality have led me to make the sentences partially concurrent. The sentence for theft will be cumulative upon the sentence for aggravated robbery as to five months but otherwise concurrent. The sentence for obtaining property by deception will be cumulative as to one month but otherwise concurrent. This gives a total sentence of three years and two months. It will be apparent, having considered the alternatives, I consider that no sentence other than a custodial sentence is appropriate.
The issue then becomes how these sentences are to be served. Counsel for the offender submitted that it was appropriate to order an intensive correction order assessment. In my view, that course is appropriate. Having regard to the fact that he has a significant history of drug abuse, there may be utility in having a sentence which involves close supervision. The assessment of suitability may be made more difficult by the fact that he is presently detained in custody. I accept that it may be more difficult for him to be assessed as suitable for an intensive correction order if he is in custody and unable to demonstrate his suitability for life in the community. On the other hand, recognising that an intensive correction order cannot be part of a combination sentence, a further period in custody pending the outcome of the assessment may, if he is found suitable for an intensive correction order, improve his prospects of the court being able to make an order which appropriately reflects the gravity of his offending conduct.
Once an intensive correction order assessment has been prepared, it will be possible to assess whether the sentence should be served in that way or in full-time detention with a non-parole period or by way of a partially suspended sentence. Any question of backdating can be addressed when the sentence is imposed.
Orders of 13 November 2018
The orders of the Court are:
1.An intensive correction assessment is ordered in relation to charges CC2015/10890, XO2018/31306 and CC2015/9863.
2.The sentencing proceedings are adjourned until 1 February 2019 at 2:15pm.
Additional reasons given on 4 February 2019
On 13 November 2018, I gave reasons for my conclusion that an aggregate sentence of three years and two months should be imposed. That included two years and eight months for the offence of aggravated robbery, 11 months for theft and three months for obtaining property by deception. I ordered that an intensive correction assessment be prepared. The court now has before it an intensive correction order assessment report which finds the offender suitable for service of a custodial sentence in the community by way of intensive correction.
The offender has now spent 286 days or nine months and 11 days in custody on remand. That period of custody is of benefit to the offender because in the absence of such a period, an intensive correction order may not be sufficient to meet the purposes of sentencing, most particularly punishment and deterrence and holding the offender accountable. If any sentence is backdated to take into account the period spent on remand then the offender will have just under 23 months of his sentence left to serve. Particularly in the light of his history of alcohol and illicit drug use, an intensive correction order may be a sentence which is effective to encourage or consolidate his rehabilitation in relation to drug use. It may also assist him in relation to gaining and maintaining lawful employment as well as education. In light of the period that he has spent in custody solely attributable to these offences and his suitability for service of a sentence of imprisonment by intensive correction, as well as the matters referred to in s 11(3) and s 78 of the Crimes (Sentencing) Act 2005 (ACT), I consider it appropriate to make an intensive correction order notwithstanding that the total period of that order will be for more than two years. The sentences will be backdated to 24 April 2018.
The offender has also submitted that it would be appropriate to make a referral for restorative justice. I consider that is appropriate in relation to the charge of aggravated robbery, in relation to which the victim appears to have been significantly adversely affected.
Orders of 4 February 2019
The orders of the Court are:
1.On the charge of aggravated robbery (CC2015/10890), the offender is convicted and sentenced to imprisonment for two years and eight months commencing on 24 April 2018 and ending on 23 December 2020.
2.On the charge of theft (XO2018/31306), the offender is convicted and sentenced to imprisonment for 11 months commencing on 24 June 2020 ending on 23 May 2021.
3.On the charge of obtaining property by deception (CC2015/9863), the offender is convicted and sentenced to imprisonment commencing on 24 March 2021 and ending on 23 June 2021.
4.Each sentence is to be served by way of intensive correction in the community.
5.The offence of aggravated robbery (CC2015/1089) is referred under s 24 of the Crimes (Restorative Justice) Act 2004 (ACT) for restorative justice.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 May 2019 |
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