DPP v Jakovac [2020] VCC 153

3 A security worker, Cameron Jones, approached you but you ran from the shopping centre. Jones called 000. You began hitting the rear window of a car in the carpark with an object and then ran across the Melton Highway. You then tried to open the door of a car parked near the entrance of a Harvey Norman store. Peter Thompson was sitting in the driver's seat. You forcibly grabbed his shoulder and tried to drag him out of the car, telling him to get out. Thompson grabbed the inner door handle and pulled it hard saying he would not get out. You ran off and Thompson called 000. That is Charge 1, attempted carjacking.

4 You ran towards the Harvey Norman store carrying the imitation handgun and in the store you put the handgun in your trousers and took out a knife. Jones and other security guards ran into the store and customers ran from it. You threw a backpack onto the floor. You went into an office and locked yourself in. Police arrived and had the store evacuated. You came out of the office when asked by the police to do so and you were arrested. Police located the imitation handgun and in your pocket a capped syringe and a knife in your backpack. This represents two of the summary charges, possessing an imitation handgun and possessing a controlled weapon without excuse.

5 You were charged with committing an indictable offence whilst on bail and you were remanded in custody where you have remained for 281 days. When interviewed on 31 May, you explained your behaviour as a result of being frantic from drugs and lack of sleep and said you could not remember pointing the gun or the knife at anyone.

6 Mr Thompson's victim impact statement explained the considerable impact of your attack on him. His shoulder was bruised, he lost two days' wages and he felt very overwhelmed emotionally for a week. His sleep was disturbed and he isolated himself from his family and fellow workers and felt helpless. He is still extremely nervous and feels threatened in carparks and shopping centres.

7 Turning now to your personal background and circumstances. You were born and raised in Albury-Wodonga and you are now aged 42. You have two older sisters. Your father left the family when you were 14. You attended a boarding school until Year 10 and high school for Year 11, after which you left school and worked for your father. You were a champion skier until a knee injury ended competitive skiing for you and then at the age of 20 you suffered a serious workplace accident which precipitated an addiction to pain medication. That led to a heroin addiction which partly explains your criminal history. In 2001, you succeeded in withdrawing from heroin use and thereafter studied at university and worked in various roles. In 2017, personal struggles brought about a relapse in drug use and by 2019 you were homeless and adrift.

8 Your criminal history dates to your early adult years in this state and in New South Wales and includes a range of drug and related offending. You were given several community based orders, some of which you breached, as well as an intensive corrections order which, despite its inherent difficulty, you appear to have completed. Then in 2001, you served nine months of a partly suspended prison sentence. That is your last conviction and you stayed out of trouble until early 2019.

9 You had two sons, now adults, with your long-term partner, but that relationship ended and you lived with your sister Amanda and her husband who employed you in his construction business for seven years, during which time you remained drug free. You engaged in further construction work and also completed a Certificate IV in Occupational Health and Safety.

10 With your partner Simone, you have had two children, now aged six and eight, but that relationship deteriorated between 2016 and 2017. You had accumulated debts and you began to use methamphetamines, resulting in you being unable to function at work. Your house had to be sold and you and Simone separated. You underwent voluntary residential drug treatment several times in 2017 and 2018 but you were otherwise itinerant and using large amounts of drugs. You are facing some summary charges to be dealt with in the Magistrates' Court in the coming months relating to offending alleged to have committed early in 2019, a few months before the episode at the Watergardens Shopping Centre and soon after the failed drug rehabilitation.

11 When interviewed by the police on 31 May last year, you explained the context of your offending being paranoia resulting from drug use and lack of sleep. You said your aggression was intended to attract the police to save you from the negative influences of your paranoia. Your attempt to enter the bank was to find a place which you regarded as safe and you had no intentions to rob or hurt anyone. In fact, you said you had not touched Mr Thompson and you gave up trying to take his car because he was elderly and determined not to let you take it. You said you knew you were breaking the law and you would not have done it on a normal day. You said you had never done anything like it before, that you had been desperate for months and you were sick of the struggle. You said what you had done was like a bad dream and you were confused as to what was real. You were in a highly stressed state, lacking insight into your actions.

12 This is consistent with what you told the psychologist Mr Cummins recently, that you were embarrassed and ashamed of what you did and that you understood that the victims and others would have been traumatised by your bizarre behaviour. You thought you had been experiencing symptoms of a drug induced psychosis at that time. It is also consistent with what Mr Cummins observed, that your embarrassment and shame was obvious and that you appeared shocked and overwhelmed by it.

13 Such serious offending as this warrants a strong focus on general deterrence to deter others from such crimes. Members of the public are entitled to go about their business free of such frightening behaviour which must be sternly denounced by the courts. Your own specific deterrence is also important given your criminal history and the failed rehabilitation, but there are several mitigating factors to reduce the severity of the sentence I impose.

14 The first is your plea of guilty and the remorse you have demonstrated, and that includes your cooperation with the police when arrested. Your plea has avoided the need for a trial which has facilitated the progress of the case and has been of assistance to the criminal justice system. It means you are entitled to a discount on your sentence. Although your attempts of rehabilitation failed, they demonstrate insight and repeated determination in the face of a serious addiction and such failure is not unusual. Your long years of remaining out of trouble suggest the possibility of returning to that state. You have strong family support and you are equipped with qualifications and experience for work. You have above average intelligence. You have a young family who might look to you for support. In prison you have been working and learning metal work as a trade, and you told Mr Cummins that you have done courses and completed certificates.

15 Mr McGarvie, who appeared on your behalf, submitted that your prospects of rehabilitation are fair and that a prison sentence combined with a Community Correction Order was appropriate. Mr Plummer, for the prosecution, agreed as to your prospects but submitted that a prison sentence with a non-parole period is warranted. I am not persuaded that a prison sentence longer than 12 months is justified.

16 You have been assessed as being at high risk of re-offending, but as suitable for a Community Correction Order.

17 if you stand now, Mr Jakovac, I will sentence you as follows.

For attempted carjacking, nine months' imprisonment.

For possessing an imitation firearm, six months.

For possessing a controlled weapon without excuse, four months.

For committing an indictable offence whilst on bail, one month.

The base sentence for the purposes of cumulation is the sentence for Charge 1. I order that two months of the sentence for Summary Charge 6 and one month of the sentence for Summary Charge 8 be served in cumulation upon the base sentence. That results in a total effective sentence of 12 months.

You have been in custody for 281 days although I stand to be corrected if that is not accurate. That is to be reckoned as already served and I shall declare that on the court record.

18 As soon as you are released, you will be given a Community Correction Order which will last for two years. You will be under supervision and you must submit for drug treatment and rehabilitation and for other programs to which you might be directed. You must also perform 100 hours of unpaid community work. Any hours that you spend in programs will be credited against those hours of community work. Within two working days of your release you must attend the Corrections Office at 499 Ballarat Road, Sunshine.

19 If you had pleaded not guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years.

20 The prosecution seeks orders for forfeiture of some items and to obtain a forensic sample of saliva. I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

HER HONOUR: Now the Community Correction Order is ready for signature. Perhaps you'd like to accompany my associate to the dock?

(Discussion re pre sentence detention. 281 days PSD agreed)

The address of the Sunshine Corrections Office, I have Ballarat Road, but apparently is Foundry Road.

HER HONOUR: Is there any other matters, Mr Plummer?