R v Zdravkovic
[2017] ACTSC 70
•23 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zdravkovic |
Citation: | [2017] ACTSC 70 |
Hearing Dates: | 20 February 2017; 1 March 2017 |
DecisionDate: | 23 March 2017 |
Before: | Penfold J |
Decision: | See [42]-[44] below |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning actual bodily harm – act of retribution, response to provocation or gratuitous attack – gratuitous attack and importance of general deterrence and denunciation – alcohol abuse – relevance of community protection. |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), s 312 Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) |
Cases Cited: | R v Dib [2003] NSWCCA 117 |
Parties: | The Queen (Crown) David Zdravkovic (Offender) |
Representation: | Counsel Ms K McCann (Crown) Mr R Livingston (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Legal Group (Offender) | |
File Numbers: | SCC 8 of 2015; SCC 10 of 2015 |
The offence
David Zdravkovic has pleaded guilty to one count each of aggravated burglary and assault occasioning actual bodily harm. The burglary offence arises under s 312 of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for 20 years. The assault occasioning actual bodily harm offence arises under s 24 of the Crimes Act 1900 (ACT) and has a maximum penalty of five years imprisonment.
In sentencing Mr Zdravkovic for the aggravated burglary, I am also asked to take into account an offence of driving while disqualified, as a repeat offender. This offence arises under s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and, for a repeat offender, carries a maximum penalty including imprisonment for one year.
The incident
The incident from which these charges arose took place on 13 October 2014. Mr Zdravkovic and the victim live quite close to each other. Some days before the incident, the victim had borrowed $20 from Mr Zdravkovic, which he paid back the day before the incident. On 13 October 2014, Mr Zdravkovic found the victim outside the victim's townhouse, followed him into the house despite the victim's efforts to prevent his entry, and demanded the return of the $20. When the victim said that he had previously repaid the money, Mr Zdravkovic subjected him to a sustained attack, in which he punched the victim in the head three or four times, hit him several times with a metal broom handle (hard enough to bend the broom handle) as the victim lay on the floor curled in a foetal position, and then produced a large kitchen knife, held it to the victim's face, and threatened to cut out the victim's eye. Mr Zdravkovic then left the victim's house.
The victim suffered severe bruising to his face, ear, arms, and one shoulder, a wound to his nose, and a cut to one foot.
Some time after Mr Zdravkovic left the victim's home, the victim called an ambulance, and police were then notified of the incident. Mr Zdravkovic was arrested not long afterwards, and took part in a police interview in which he denied the victim's allegations and accused others of the attack on the victim.
The scheduled offence was committed earlier the same day (13 October 2014) when Mr Zdravkovic, who had previously been disqualified from driving until at least 16 November 2015, was observed by his former partner driving a car away from her home.
Legal processes
Mr Zdravkovic was charged on 13 October 2014, and released on bail the next morning.
He then spent two more nights in custody, on separate occasions, after arrests relating to further offending, before being arrested on new charges on 25 November 2015 and remanded in custody. On 18 July 2016, Mr Zdravkovic was sentenced in the Magistrates Court for six offences; the sentences included fines, and a total of just under eight months imprisonment for three of the offences, backdated to 25 November 2015 and to end on 22 July 2016. Apart from this period in custody, the prosecutor says that as at 20 February 2017 Mr Zdravkovic had spent 214 days in custody solely attributable to the offences for which I am to sentence him.
However, defence counsel says that in determining the sentences for these offences, I am required by the totality principle to have regard also to that eight‑month period during which Mr Zdravkovic was serving other sentences.
The six offences for which Mr Zdravkovic served that total sentence of nearly eight months at the beginning of his current period of custody were one each of common assault, contravening a protection order, possessing cannabis, and driving while disqualified, and two other motor vehicle offences. He was fined for three of the offences, but for the assault, contravene protection order, and drive while disqualified, he was sentenced to periods of imprisonment running almost entirely consecutively from 25 November 2015 to 22 July 2016. The assault involved a violent attack on Mr Zdravkovic's then partner, and the protection order offence related to the sending of highly offensive text and voice messages to Mr Zdravkovic's former partner (the mother of his 12‑year‑old daughter).
In relation to the current offences, Mr Zdravkovic was initially charged with aggravated robbery involving the use of an offensive weapon. He pleaded not guilty to the offence in the Magistrates Court and was committed to this court for trial. After many delays, the trial was finally set down to begin in the week starting 5 December 2016. On 6 December a jury was empanelled and the matter was adjourned, and on 7 December the Crown produced a new indictment and Mr Zdravkovic pleaded guilty before this Court to the two charges on which I am now to sentence him.
Evidence
As well as the agreed statement of facts, the following material is in evidence before me:
(a)a criminal history;
(b)a pre-sentence report from February this year;
(c)a CADAS report also from February this year;
(d)a chronology explaining Mr Zdravkovic's time in custody since these offences were committed;
(e)photographs of the victim, and of the metal broom handle taken after the incident; and
(f)three statements of facts relating to the offences for which Mr Zdravkovic was sentenced in the Magistrates Court in July last year;
all of which were tendered by the prosecution.
The defence tendered:
(a)a Forensic Psychiatric Report dated 25 May 2016 from Dr John Kasinathan in relation to Mr Zdravkovic's fitness to plead to these offences; and
(b)references from the Alexander Maconochie Centre (AMC) chaplain and from the manager of Campbell Page, the training provider at the AMC.
As well, oral evidence was given by:
(a)Darah Bartlett, who prepared the pre-sentence report; and
(b)Mr Zdravkovic.
Objective seriousness
In considering the objective seriousness of the offence, I have had regard to the following matters.
The aggravated burglary in this case was constituted by Mr Zdravkovic entering the victim's home as a trespasser, that is, despite the victim's attempts to keep him out, with intent to commit an offence that involved causing harm to anyone in that building, and having an offensive weapon with him. The fear caused to a victim by such an entry makes this, in my view, a more serious version of the burglary offence than, for instance, a burglary committed by entering an unoccupied house intending to steal property.
The assault was a very unpleasant one and must have been terrifying to the victim. The “actual bodily harm” that he suffered was substantial, although his injuries do not appear to have caused any lasting damage.
Mr Zdravkovic, while acknowledging in discussion with the pre-sentence report author that his behaviour was wrong, attempted to blame the victim by claiming that he, Mr Zdravkovic, had acted in response to an inappropriate comment made by the victim to Mr Zdravkovic's 12-year-old daughter. He told the author of the Forensic Psychiatric Report that he had assaulted the victim in self‑defence because the victim had made an inappropriately sexual comment to his daughter. It is almost impossible to imagine that an offender could successfully raise self-defence in such circumstances.
The Crown, however, by reference to these claims, submitted that the attack on the victim was aggravated by the fact that it was "an act of retribution, as opposed to a gratuitous attack or one of provocation”. In written submissions filed by leave after the sentencing hearing, the Crown submitted that Mr Zdravkovic's reasons for committing the offence aggravated the offence, because Mr Zdravkovic had acted on vague information about the victim's alleged actions, and sought to punish the victim for his alleged behaviour. The Crown submitted that the need to deter individuals from taking the law into their own hands, as Mr Zdravkovic appeared to have done, meant that general deterrence and denunciation were particularly important in this case.
First, I am not convinced that if Mr Zdravkovic had acted for the reasons he claimed, he would have been seeking to punish the victim for his inappropriate remark, as distinct from seeking to warn the victim away from his daughter.
It is also notable that the statement of facts to which Mr Zdravkovic has apparently agreed does not contain any mention of the motive for the attack which Mr Zdravkovic now seeks to rely on. One can only wonder whether that motive was identified later in the hope that it would be seen as a mitigating factor or was initially obscured for a reason that is not apparent.
I am grateful for the Crown's helpful submissions about assessing the gravity of offences by reference to their motives, and I accept the Crown's submission about the importance of deterring individuals from taking the law into their own hands, whether that is done to ensure that people are punished or to persuade them away from particular conduct. On the other hand, it seems to me that a purely gratuitous violent attack would also call up the sentencing purposes of general deterrence and denunciation.
In the current circumstances, it seems to me appropriate to refrain from making any finding about Mr Zdravkovic's motive for the attack that is inconsistent with the agreed statement of facts. That then leaves me to sentence Mr Zdravkovic on the basis that he has engaged in what appears to be an entirely gratuitous and violent attack on an acquaintance with whom he was previously on good terms, and to do so on the basis that both general deterrence and denunciation are, accordingly, significant sentencing purposes.
Both of these offences are, in my view, of at least mid-range seriousness.
Subjective circumstances
I have also had regard in this sentencing to Mr Zdravkovic's subjective circumstances.
Mr Zdravkovic is now 48. He has a substantial criminal history in the ACT and in New South Wales. A large proportion of his previous offences have been driving offences of various kinds and there are also a number of drug possession charges. His record also includes many burglary or equivalent offences, but they appear to involve entering premises in order to steal property rather than to commit assaults, and there are a number of other dishonesty offences such as being in possession of goods suspected of being stolen. His New South Wales record includes an assault occasioning bodily harm committed in 2005 for which he was sentenced to two months imprisonment, and his ACT criminal record shows a common assault committed in 1993 and a common assault, and a contravention of a protection order, committed on separate occasions in 2015. That is, the current offences seem to represent a worrying increase in Mr Zdravkovic's tendency to violence.
Mr Zdravkovic was born in Serbia and came to Australia as an infant with his parents, who then divorced when he was seven years old. After that, he lived for some time with an aunt and uncle, and had no further contact with his father until he was 15. Mr Zdravkovic maintains good relationships with his mother and siblings, but has only sporadic contact with his father. Mr Zdravkovic was involved in a 17‑year relationship which produced the daughter I have already mentioned. At some point, his daughter was taken into care by Child and Youth Protection Services (Child Protection), which Mr Zdravkovic blames on the child's mother and her illicit substance use. Child Protection, however, reports that both parents are regarded as unsuitable to care for the child due to domestic violence, neglect and drug use by both parents, and care orders until the child is 18 years old have apparently been sought.
Mr Zdravkovic completed Year 10 and began an apprenticeship. He has experience in various trade areas, but told the pre-sentence report author that he is unable to resume his most recent employment, as an earth mover, because of injuries sustained in a car accident. Depending on his physical capacities after he has had surgery to address those injuries, Mr Zdravkovic plans to open a car detailing company. At the time of the current offences, however, Mr Zdravkovic was living on a disability support pension as a result of those injuries.
It seems that Mr Zdravkovic has been involved in two car accidents in the last few years (2001 and 2015). In the 2015 accident, he sustained injuries in the area of his frontal lobe and his lower back, broken hands and cracked ribs. He is now being medicated for those injuries with anti-inflammatory medication. The accident may have caused an acquired brain injury which seems to have impaired Mr Zdravkovic's ability to handle frustration and stress and, according to Child Protection, his cognitive abilities.
Since the accident, Mr Zdravkovic has also been treated for depression and, after some difficulties with medication, he says he is now being provided with appropriate medication which enables him to relax, to communicate and to process information better.
Mr Zdravkovic is a regular user of cannabis when in the community. He has also used heroin, although he claims not for some years, as well as methylamphetamine more recently: the information before me suggests that this was while he was in custody but this may simply reflect a confusion about dates. Mr Zdravkovic has been using alcohol since he was 10 years old and said that he had consumed half a bottle of spirits (approximately 11 standard drinks) on the day of the current offences. He told the CADAS reporter that at the time of the current offences he had been using Ice regularly, but maintains that alcohol is his most problematic substance.
Since being remanded in custody, Mr Zdravkovic has completed a number of counselling sessions and is described as having been “motivated and genuine to make changes”.
Dr Kasinathan, in considering whether Mr Zdravkovic was fit to plead, concluded that he did not have a severe mental illness given that he did not appear to suffer from delusions, hallucinations, serious disorder of thought form, severe disturbance of mood or any behaviour indicating any of those symptoms. However, he considered that Mr Zdravkovic has psychiatric diagnoses under the DSM-5 of:
(a)Alcohol Use Disorder;
(b)Cannabis Use Disorder;
(c)Amphetamine Use Disorder;
(d)Opiate Use Disorder;
(e)Antisocial Personality Disorder; and
(f)possibly, Post‑Traumatic Stress Disorder.
As noted, Dr Kasinathan was investigating Mr Zdravkovic's fitness to plead, and did not express any views about the impact of his various diagnosed disorders on Mr Zdravkovic's culpability for the current offence or the impact of a prison sentence on him.
There is nothing in the material before me, including Dr Kasinathan's provisional diagnoses, to raise any question arising from Mr Zdravkovic's mental health about the pleas of guilty to these offences, or about his responsibility for them. The evidence before me does, however, suggest that imprisonment will not have any particularly negative effect on Mr Zdravkovic, and may indeed be helpful in bringing some stability and order into his life for a time. On the other hand it may not entirely eliminate his opportunities for substance abuse.
Rehabilitation
Mr Zdravkovic has been accepting counselling while in custody, and told a CADAS reporter that he was motivated to “sort himself out” so that he could regain access to his daughter, whom he has apparently not seen since 2015. He gave evidence that when he is released from custody, he would like to continue receiving counselling and other medical assistance, although he did not know how long he would need such help given that he feels he has made significant progress in addressing his anxiety and reaction to stress.
Mr Zdravkovic does seem to be making good progress in custody, and he gave evidence that he has produced negative results to all the urinalysis he has been subjected to during the current period of custody, although that was not mentioned in the pre‑sentence report. Among other things, his role as a prison delegate suggests that he is respected by both prison authorities and his fellow inmates. I also note the supportive references from the AMC chaplain and from the manager of the AMC education provider.
However, Mr Zdravkovic's attempts to justify his actions by blaming the victim for the incident by reference to the victim's alleged behaviour to Mr Zdravkovic's daughter at some earlier point, rather than recognising his own contribution, and the contribution of excessive alcohol consumption, does not give me a lot of confidence in his claimed intention to address his own behaviour. In saying that, I recognise that Mr Zdravkovic's behaviour and his cognitive abilities may be affected by his acquired brain injury, and that with the right sort of medical and psychological help, he may make significant further progress in rehabilitating himself. On the other hand, I am not convinced that Mr Zdravkovic is yet in a position to manage his own rehabilitation in the community.
Other sentencing considerations
General deterrence has already been identified as an important sentencing consideration in this case, and I am satisfied that personal deterrence is also still necessary. The evidence before me about Mr Zdravkovic's acquired brain injury, together with the evidence about his substance abuse and its role in the current offending, do not in my view render Mr Zdravkovic an inappropriate vehicle for general deterrence. At the same time, they do suggest that the protection of the community is a relatively significant factor in this case.
While noting Mr Zdravkovic's achievement and his apparently more settled mental health since he began the current period of custody, I cannot see any basis for concluding that he should be released in the very near future. Both the purposes of punishment and denunciation, and the need to protect the community, including of course by furthering Mr Zdravkovic's rehabilitation, seem to require a further period in custody.
Pleas of guilty
Mr Zdravkovic has pleaded guilty to these offences, although not until the second day of his trial after a jury had been empanelled and, presumably, after all necessary preparation had been done by the Crown. It is true that the offences ultimately pleaded to are slightly less serious than the offence originally charged, but it is not clear to me that the time it took for that agreement to be reached can be entirely or even largely attributed to one party rather than the other. The Crown submitted that any plea of guilty discount ought to be minimal, given that the guilty pleas were entered two years after Mr Zdravkovic was committed to this court (R v Dib [2003] NSWCCA 117). However, the court file does not establish that Mr Zdravkovic or his lawyers were entirely or even largely responsible for those delays. I note that on several occasions Mr Zdravkovic's anticipated trial was simply adjourned to a further criminal listing period without explanation. There will be a sentencing discount to recognise Mr Zdravkovic's pleas, and especially the utilitarian value even at that late stage, but it will not be substantial.
Sentence
Mr Zdravkovic, please stand. I record convictions on the charges of aggravated burglary and assault occasioning actual bodily harm. I also note the scheduled offence of driving while disqualified as a repeat offender, and I have taken it into account in sentencing for the aggravated burglary.
I now sentence you to imprisonment for three and a half years for the burglary, reduced from four years because of your guilty plea, and to 21 months for the assault, reduced from two years. The sentences are to be served mainly concurrently but so that the assault offence adds six months after the burglary sentence, giving a total sentence of four years.
The sentence will be backdated to 25 February 2016. That gives you the benefit of just over five months concurrency with the sentences imposed by the Magistrates Court as well as the time you have spent in custody since those sentences expired. It also takes account of your three separate nights in custody since these offences. That means that the sentence I have imposed will expire on 24 February 2020. You were of course in custody serving other sentences from 25 November 2015, so I must set a new non-parole period applicable to the new total period of custody. For that total period, four years and three months, I set a non-parole period of two years and 10 months, starting from 25 November 2015 and therefore to expire on 24 September 2018.
The effect of the backdating and the non-parole period is that, as mentioned, you will be eligible for parole, at the earliest, in about 18 months, namely, 24 September 2018. If you are released to parole at that point, you will then have a parole period of 17 months. That should ensure that you can obtain appropriate drug rehabilitation and mental health support in the community for long enough to entrench what I hope will be your developing capacity to live safely in the community.
If you have any particular questions about the orders I have just made, please ask the court officials or your lawyer, Ms Bolas.
You may sit down, Mr Zdravkovic.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Nishadee Perera Date: 26 April 2017 |