DPP v Gruevski [2018] VCC 798

3 You admitted your criminal record, which includes forty-eight findings of guilt or convictions from twelve court appearances between 2007 and 2017. Your prior offending includes offences of violence, driving offences, weapon offences and breaches of intervention orders. You have received adjourned bonds without conviction, including a bond combined with a justice plan, as well as youth training centre orders, good behaviour bonds with conviction and community correction orders, some of which you have breached

4 The maximum penalties that apply to the charges are aggravated burglary, 25 years' imprisonment, and causing injury recklessly and common law assault, five years' imprisonment.

5 In respect of your co-offenders, Mr Bell was sentenced as follows:

With orders for accumulation, his total effective sentence was four years and five months' imprisonment with a non-parole period of two years and six months' imprisonment

7 In respect of Mr Yates, he was sentenced as follows:

Charge 2 ─ Two years' and six months' imprisonment;

With orders for accumulation, his total effective sentence was two years and seven months' imprisonment with a non-parole period of one year and three months' imprisonment.

8 In respect to Ms Woods, she was sentenced as follows:

With orders for accumulation, her total effective sentence was two years and two months' imprisonment, with a non-parole period of 19 months' imprisonment.

9 Tendered as Exhibit A on the plea, and read aloud in court, was the summary of prosecution opening. The circumstances of your offending require some explanation. On 15 July 2016, the principal victim in this matter, Benjamin Salt, was involved in an incident at Mac's Hotel in Melton, where he assaulted Brittany Bell, Mr Bell's daughter and your partner. Ms Woods was present during the incident. Benjamin Salt was arrested, interviewed under caution and released pending summons.

10 About a week later, you asked Brittany Bell if she knew Mr Salt's address.

Ms Bell did not disclose Mr Salt's address to you because she did not wish anything to happen to Mr Salt, as she believed that you would retaliate against him. Further, Ms Bell urged Ms Woods not to disclose Mr Salt's address to you because of her fears.

11 In early October 2016, Ms Bell told police that she did not wish to proceed with the charges against Mr Salt, and on 20 October 2016, the brief of evidence against him was not authorised.

12 On Sunday, 18 December 2016, you, together with Mr Bell, Mr Yates and Ms Woods, were at your home in Melton South, drinking alcohol, and it is apparent that, by the end of proceedings, Mr Bell, Ms Woods and you were adversely affected by alcohol.

13 Brittany Bell went to bed and you, together with Mr Bell, Mr Yates and Ms Woods, decided to attend at Mr Salt's address to "scare" him. Ms Woods knew Mr Salt's address and at about 7.30pm, acted as navigator, as Mr Yates drove you all to Mr Salt's home. Mr Yates parked his vehicle two houses down from Mr Salt's home. Ms Woods, stayed in the vehicle for a period of time whilst you, Mr Bell and Mr Yates, entered Mr Salt's home. Mr Bell was armed with a metal pipe about half a metre long (Charge 1) and together with you and Mr Yates, entered Mr Salt's house, through an unlocked front door intending to assault him. (Charge 2).

14 Mr Salt was in his bedroom playing Xbox through the network with his housemate, Damian Leckie, who was in his bedroom. Mr Salt's younger brother, Mitchell, was also present in his bedroom.

15 You and Mr Yates entered into Benjamin Salt's bedroom and asked if he was Ben, to which he replied, "No". Mr Yates told Mr Salt to stop in his bedroom and walked out of the bedroom. Mr Yates shut the bedroom door behind him. Mr Salt opened the door and tried to get past Mr Yates, but Mr Yates pushed him back.

16 You approached Mitchell Salt in his bedroom and asked, "Are you Ben?" to which he replied, "No". You and Mr Bell walked out of Mitchell Salt's bedroom, with Mr Yates standing at the bedroom door, preventing Mitchell Salt from coming out. You and Mr Bell approached Mr Leckie, who, by this stage, was in the lounge room and Mr Bell asked, "Where's Ben?" to which Mr Leckie replied, "Why?"

17 You and Mr Bell became angry and replied to Mr Leckie's question by saying, "He likes to glass girls". Benjamin Salt walked past Mr Yates into the hallway, where you punched him in the face twice, and a scuffle broke out between you. Mr Bell, swung the metal pipe at Mr Leckie, which he partially blocked, and a scuffle broke out between them. During the scuffle, Mr Bell, having got the worst of it, grabbed a black-handled steak knife from a table next to the couch, and Mr Leckie retreated behind the couch. You approached Mr Leckie and punched him in the face with a closed fist, causing him to bleed. (Charge3)

18 While the scuffles were taking place, Ms Woods entered the house and identified Benjamin Salt to you and Mr Bell and said, "He bashes girls", referring to Mr Salt. You and Mr Bell approached Benjamin Salt and took him into the kitchen area, where you further assaulted him. Ms Woods was in the kitchen whilst this happened. Benjamin Salt describes Ms Woods as yelling at him the whole time, whilst he was assaulted in the kitchen. (Charge 4)

19 Mr Leckie, in his deposition, describes Ms Woods as "walking like she was the boss running the whole thing".

20 Eventually you all left. You and Mr Bell told Mr Benjamin Salt and Mr Leckie not to tell anyone, and not to report the matter to the police or you would return with guns.

21 Mr Mitchell Salt describes his experience as being held in his room and deposed to the fact that when he tried to come out, the "guy", being Mr Yates, pushed him back again. He described Ms Woods as his older brother Billy's ex-girlfriend, and deposed in his statement that Ms Woods came into his room and said she was sorry that she and her co-offenders were there, but if he called the cops, they would come back with guns. Ms Woods then left Mitchell Salt's room.

22 At some stage, either prior to entering Mr Salt's premises or upon leaving them, Mr Bell damaged the right hand tail light of Mr Salt's red Holden Cruze motor vehicle. Mr Yates, upon leaving, took the opportunity to steal from Mr Benjamin Salt's bedroom his Xbox and controller.

"I was hit multiple times to the face. My arm was hit by blocking the baseball bat. I have no visible injuries. The whole time I was telling them to leave the house."

24 Mr Leckie described his injuries in the following terms:

"I have a sore right wrist from being struck with the metal pole and my nose is slightly sore from being punched by the man in the blue jumper [Mr Gruevski]. I have red marks on my upper chest area which I think are from the silver haired [man] grabbing me whilst we were wrestling for the pole."

25 Whilst each of your victims' injuries are at the lower end of the scale, this is a result of good luck rather than good management, in that they proved to be a match for you and your co-offenders when you invaded the privacy of your victims' home.

26 Tendered as Exhibit B were the victim impact statements of Messrs Salt and Leckie. Mr Salt suffers from anxiety when alone in his own home, constantly checking that the locks in his home are locked. There are some nights when he cannot sleep. He declines invitations to go out for fear of whom he may encounter. Mr Leckie writes in almost identical terms. By your conduct you have adversely affected the lives of your victims.

27 Tendered at the initial part of your plea hearing conducted on 22 November 2017, were a number of medical, psychological and other reports, Exhibits 4-9 both inclusive. In summary, it is likely that you were born with an intellectual disability. When you were eight years of age you were struck by a truck, and as a consequence you have an Acquired Brain Injury. In addition, you suffered other physical injuries. Some of the reports were prepared for your personal injury claim. In some of the reports there was a suggestion that the test results that you achieved may have been unreliable, as you were not making your best efforts during testing.

28 Of note is that subsequent to the instant offending, on 21 March 2017, you were convicted of make threat to kill and assault an emergency worker whilst on duty, and placed on a community correction order with a justice plan. Exhibit 4, the report of Ms Rixon from the Department of Health and Human Services, dated 9 November 2017, demonstrated that you had complied with the terms of the community correction order and justice plan, including seeking treatment for your longstanding alcohol abuse through Odyssey House. This report was supported by sworn evidence when Ms Rixon gave evidence on your behalf.

29 Your counsel on your behalf conceded in respect of your relationship with

Ms Bell, that it has been marked by significant domestic violence, as is evidenced by your criminal history and Exhibit 3.

30 On 23 November 2017, your plea was part-heard, and you were remanded in custody and have remained so since that date.

31 On 18 May 2018, your part-heard plea proceeded, after a number of adjournments, both administrative, as well as upon application, for the purposes of obtaining a further report in respect of you. In the interim, I ordered that you be assessed for suitability for a community correction order combined with a justice plan. On 18 May 2018, tendered as Exhibit 15, were your counsel's amended outline of defence submissions on plea and, as Exhibit 16, the report of Dr O'Meara, clinical neuropsychologist, dated 16 April 2018.

32 In respect to the reports that I ordered, you were found suitable for a community correction order with conditions, together with a justice plan. In respect to the reports from the Department of Health and Human Services concerning a justice plan, I was provided with a declaration of eligibility for you in respect of services under the Intellectually Disabled Persons' Services Act 1986, a client overview report, and a justice plan.

33 In short, prior to being remanded, you had shown significant progress in working with support services, as a condition of your community correction order and justice plan imposed by the Magistrates' Court in 2017. The justice plan recommended that you meet with your case manager for referral to appropriate programs, as directed by the Department, which included both drug and alcohol treatment. The plan noted that, as a result of the Magistrates' Court order in 2017, you had attended drug and alcohol counselling on a fortnightly basis at Odyssey House. Further, it was recommended that you reengage with counselling services at the Melton City Council and that you consult your general practitioner for a review of your medication and further treatment recommendations.

34 As to your personal history, you were born in Macedonia and migrated to Australia at three years of age. You commenced your education in Australia at a mainstream primary school.

35 You are not a good historian, but from an analysis of the various reports, it is likely that you were transferred to a special school in Year 7 and left in either Year 8 or 9.

36 You have a long history of polysubstance abuse. You commenced smoking at 12 years of age. You commenced abusing alcohol at 12 years of age. You were an occasional user of cannabis between the ages of 10 and 12 years, until you ceased that abuse, owing to your preference for amphetamines. You abused amphetamines and methylamphetamine on a daily basis from the age of 12 until you were 26 years of age. The cessation at 26 appears to coincide with the birth of your twin sons, although you have relapsed into the abuse of methylamphetamine since that time. There were brief periods of daily use of Ecstasy when you were aged about 15 years. You abused cocaine when aged about 24 years. You have experimented with heroin, LSD, GHB and magic mushrooms. You have also taken large amounts of Xanax and attempted to overdose as a child.

37 Until you were remanded in custody you resided with Brittany Bell, the mother of your three children, the youngest of which Dimitri is two years of age. You resided in a house purchased from compensation that you received as a result of the injuries that you suffered from the motor vehicle collision, that occurred when you were eight years old. You were the primary carer for your children as Ms Bell works full time. Since your time in custody, you have been visited by your partner and your children.

38 You reported to Dr O'Meara, the author of Exhibit 16, that you chromed when you were about 14 years of age, and you provided Dr O'Meara with documentation in respect to hospitalisation as a result of chroming in 2003 and 2004, when you were aged 15 and 17 respectively. Dr O'Meara referred to the medical assessment and report of Dr Louise Seward dated, 10 October 2006, that contained corroborating reports of you being admitted on five occasions to the Northern Hospital between 2003 and 2004, due to excessive alcohol use and chroming.

39 You have a full scale IQ of 59, which places you within the extremely low range. Dr O'Meara summarised your position in the following terms:

"He has long standing diagnosis of intellectual disability, traumatic brain injury, and Attention Deficit Hyperactivity Disorder, as well as a reported history of substantial substance abuse and diagnoses of depression and anxiety (resulting in multiple psychiatric hospital admissions)."

"There is likely a nexus between a number of the cognitive deficits that

Mr Gruevski demonstrated on testing and the current criminal offending. In particular, his poor impulse control will mean that he is likely to act without fully considering the consequences, (despite being aware of the wrongfulness of his actions), particularly when under a time pressure or high attentional demand (e.g. in social scenarios where multiple things are happening at one time and he is required to respond quickly). His poor abstract reasoning, idea generation, and planning and organisational abilities will mean that he will be more easily influenced by others (particularly those in a position of power) and will experience difficulty generating alternative and more appropriate ways of acting in unfamiliar circumstances."

41 Dr O'Meara was satisfied that the tests that she applied to you were both valid and reliable.

42 Your intellectual position is stable and during the course of her report,

Dr O'Meara was of the view, that it was likely that you would have difficulty maintaining certain aspects of prison environment as a result of your cognitive deficits. She was of the opinion that you would be slow to learn the rules and routines of prison.

43 However, upon the return of your plea on 18 May, it was conceded by your counsel that imprisonment had presented no difficulties for you and in particular, you had not been the subject of any acts of violence by other prisoners.

44 Your counsel submitted, ultimately, that a term of imprisonment of twelve months' combined with a community correction order and a justice plan, was the appropriate disposition in the circumstances. In particular, your counsel relied upon your plea of guilty and that it was entered at an early stage. Your counsel submitted that you were remorseful and that your intellectual disability attracted the application of the principles enunciated in Verdins, namely that your moral culpability was reduced as a result of your intellectual disability, that general deterrence should be moderated in your case, that specific deterrence should be moderated as well, and that imprisonment would be likely to have a significant impact upon your mental health.

45 In this regard, counsel referred to paragraph 6 at p.18 of Dr O'Meara's report. However, she expressed herself in the following terms:

"The intrinsically threatening nature of the prison environment may exacerbate his symptoms of anxiety, (including paranoia and hypervigilance) and the lack of access to his support systems and regular psychological therapy may exacerbate his symptoms of depression."

46 There was no evidence presented to me that Dr O'Meara's fears had come to fruition.

47 Further, it was put on your behalf that you had reasonable prospects of rehabilitation.

48 In my opinion, your prospects for rehabilitation are bleak. You have a lengthy criminal history that includes offences of violence. You have in the past failed to comply with orders that sought to address your offending behaviour within the community. As against that, it would appear that since March 2017, until the time when you were remanded in custody, you had complied with the Magistrates' Court order of 21 March 2017.

49 Mr Saunders, who appeared on behalf of the Crown, submitted that in the circumstances the only appropriate sentence was one which involved a head sentence, together with the setting of a non-parole period.

50 Your offending is a serious example of offending of the kind. In company, you committed an aggravated burglary with intention to assault Mr Benjamin Salt. You assaulted both Mr Salt and Mr Leckie in their own home. It seems to me that you have little or no impulse control. Accordingly, protection of the community must be regarded as a relevant sentencing consideration in your case.

51 You pleaded guilty at an early stage and are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian benefit. It would appear, for a period of approximately nine months or so, you complied with a community correction order and justice plan imposed by the Magistrates' Court. In my opinion, you would require substantial and continuing support for the rest of your life generally and in particular, to reduce your risk of reoffending.

52 In my opinion, your Acquired Brain Injury and its consequences upon your ability to reason impacts upon your moral culpability. Likewise, general and specific deterrence should be sensibly moderated in your case.

53 By this sentence, I must punish you and publicly denounce your conduct to deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to an aggregate sentence of 18 months' imprisonment, together with a community correction order for a period of three years with conditions:

(i) That you undertake assessment and treatment, (including treatment and testing for drug abuse or dependency as directed);

(ii) That you undertake assessment and treatment, (including treatment for alcohol abuse and dependency as directed);

(iii) That you undertake mental health assessment and treatment as directed;

(iv) That you undertake offending behaviour programs as directed;

54 I order that the community correction order be combined with a justice plan for a period of two years. The conditions of the justice plan are:

(i) That you undertake treatment for your drug and alcohol abuse;

(ii) That you undertake counselling in respect of your mental health;

(iii) That you participate in programs designed at changing your offending behaviour.

55 I declare that you have spent 190 days by way of presentence detention.

56 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to two years and six months' imprisonment with a non-parole period of 15 months' imprisonment. Mr Gruevski, what that means is this. That you have approximately another twelve months in gaol. When you are released from gaol, you will be released on a community correction order and a justice plan. Do you consent to being released on a community correction order and a justice plan?

58 HIS HONOUR: Do you understand that that will commence once you are released from gaol?

60 HIS HONOUR: And you understand you have got another twelve months to do?

64 HIS HONOUR: Just sit down there for a moment, my associate will bring you some documents for you to sign. Mr McLure - - -

66 HIS HONOUR: - - - do you want to go and assist your client in that respect?

67 MR McLURE: Yes, Your Honour. Thank you. Thank you, Your Honour.

68 HIS HONOUR: Now Mr Gruevski, you may remain seated. The Crown made application for what is known as a forensic procedure. That is, a scraping from your mouth. I have granted that order on the basis of the seriousness of the circumstances of the offending warrant the order. Your prior convictions warrant the making of the order and the granting of the order is in the public interest. I need to inform you that at the time of request for this forensic procedure, if you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of that order.

69 What is happening now is my final order, with a copy of the community correction order will be provided to counsel and you will also be given a cop of those documents Mr Gruevski for your personal records and they will go with you to the prison system. Are there any other matters that need to be attended to?

70 MS REVELL: There is nothing further, Your Honour.

72 HIS HONOUR: Remove the prisoner please. I will stand down temporarily, thank you.