Jovanco Kitanovski ("the offender") appears for sentence in respect of one charge under section 43(1) of the Crimes Act 1914 (CtH), ("the Act"), that he did between about 9 November 2021 and 10 November 2021 attempt to obstruct, prevent, pervert or defeat the course of justice of the Commonwealth. The maximum sentence is 10 years imprisonment.
I take the maximum sentence into account as a legislative guidepost, reflecting the legislature's view of the seriousness of the offending so as to assist in arriving at the appropriate sentence.
The offender was born on 9 January 1975 and so is now 47 years old. At the time of the offending he was 46 years of age.
The offender was arrested on 10 November 2021 and has been in custody since that date. As at the date of this sentence he has therefore spent 11 months and 16 days in custody. The offender was on no form of conditional liberty at the time of the offending. The period in custody is wholly attributable to the offending being sentenced.
[2]
FACTS
The agreed statement of facts which forms part of the Crown bundle which became exhibit A is particularly detailed. Without any way minimising the seriousness of the offending the essential aspects of the facts are as follows.
What the offender actually did was to attempt to assist a man named Mostafa Baluch (Baluch) flee the State of New South Wales so that Baluch could evade criminal proceedings that had commenced against him. He did this by driving a truck which was carrying a shipping container inside of which was a Mercedes motor vehicle inside of which was Baluch. The truck was stopped at Bilinga in Queensland and Baluch was apprehended, arrested on outstanding warrants and extradited to New South Wales. The offender was permitted to drive back to New South Wales where he was then arrested.
On 9 November at 9:15 AM the offender drove in a Mercedes to a hotel at Greenacre. He then departed that location with Baluch and they went to a warehouse of Kit Bros Transport Pty Ltd. The offender was a director of that company until 2018 and thereafter his wife as sole director and at all times played a significant role in the operation of its transport business.
At 9.50 am the offender enters the truck which is registered to the company. The truck, its trailer and the Mercedes are all registered to the offender's residential address. The offender is seen in the Mercedes at 10:52 AM. At 1:35 PM the offender loads the container onto the truck. Subsequently, he drives the truck away.
When stopped by the Queensland police the offender handed police a consignment note for the container to be transported to Townsville Logistics. When the police knocked on the container it was met by a return knock. The officer said he thought there was someone in the shipping container and the offender said I don't know.
The container was removed from the truck and placed on the ground and Baluch was found sitting in the Mercedes within the container.
Inside the Mercedes was found clothing worn by Baluch when he left the motel, cash of $10,000, 4 mobile phones, a portable Wi-Fi router and a driver's licence in the name of Khaled Baluch, the brother of Baluch.
When first questioned about the matter the offender said he picked up the container from Botany, was required to take it to Townsville and could not explain how it came about that Baluch was in the container.
On his arrest on 10 November, the offender said he did not know Baluch was a fugitive. Within the truck was found cash of $2200 which the offender said was to pay bills, a mobile phone, and an encrypted cypher device which the offender said was not his phone.
In further questioning, the offender said he had picked Baluch up from the side of the road in Revesby, (a suburb of Sydney) near a motel and said he had been approached on a job and offered $5000 to $10,000 to take Baluch over the border but he did not know he was wanted. When asked who approached him he said "just some fella" and that he was told he just needed to get across the border.
On further questioning at the police station, the offender agreed Baluch was inside the truck but he did not know it was Baluch; the Mercedes was a family vehicle; he rarely drives trucks interstate; he does not look at the trucks when they are given to him to drive but just drives them where they need to go.
Baluch was in fact on bail in respect of a charge of attempting to import 900 kg of cocaine from South America to Australia. The agreed fact is that on 4 June the offender sent his mother a link concerning the alleged importation but that article did not mention Baluch, though a co-accused of Baluch known as Mende Trajkoski was named and that person is accepted to be a known close associate of the offender. A further news item on 7 November 2021 was sent to a WhatsApp group which included the offender which does mention Baluch and stating that it had been 10 days since he had fled from the northern beaches. Baluch was named as New South Wales most wanted man and it was reported the police had uncovered a large criminal network during the search of Baluch. It is an agreed fact that the offender's phone shows that he had read this WhatsApp message containing the link. It is submitted that it cannot be said how much of it was read however the offender stated in a response message to the video story "fuck they are in his tail".
After the offender's arrest Kit Bros Transport was searched. Records found showed that the job the offender was purportedly carrying out was to be deleted after delivery. The customer purportedly requesting the job was noted as Truck Load Australia Dale Chubb. There is in fact a company associated with Dale Chubb known as Truck Load Australia that subcontracts with Kit Bros. Mr Chubb confirmed that he did not request the job recorded on the docket. It was also discovered that the hard drive of the CCTV footage of the Kit Bros warehouse had been ripped from the cabinet and could not be located.
Investigation of the offender's phone showed web history relating to the Bankstown motel and also the palms hotel. With respect that does not seem to take matters further concerning the offender.
A form of demand on the offender's wife on 24 November resulted in confirmation that the offender was the driver of the truck on 9 November.
[3]
Objective seriousness
It is important to bear in mind that the offence is to attempt to divert the course of justice by seeking a result which would see Baluch not appear before the court for the determination of the charge of the large importation; that is the offence is committed in respect of someone who has not been proven of having committed a plainly very serious offence. I consider the nature of the offence in question, if known to a person committing the pervert offence, is a relevant factor and can add to the objective seriousness. I find the offender knew because of the Whatsapp evidence that Baluch was wanted for alleged drug importation; I do not find beyond reasonable doubt that the quantity was 900kg, as the earlier mention of that amount was in respect of Trajkoski, not Baluch. The offence should not be assessed as more serious on the basis of Baluch having committed the crime alleged. The present offence is to seek to pervert the course of justice in relation to an alleged serious offence. This should not be seen as a mitigating factor but rather lessens the seriousness that may otherwise have been found.
Clearly, the offender did not make immediate admissions but there is no dispute that he is not entitled to a 25% discount on his plea. The offender argues that paragraph 46 of the facts show that there was some early kind of admission. That admission merely amounts to admitting to having picked up Baluch and that he had been offered $5000 to $10,000 to take him over the border. It includes an assertion by the offender that he did not know Baluch was wanted. When asked who approached him he said "just some fella".
In my view that does not assist the offender beyond the early date of his plea later made. With respect paragraph 46 seeks more to obfuscate than assist. What the agreed facts show is that the offender took a series of steps to assist to pervert or to attempt to pervert the course of justice beyond simply climbing into and driving a truck. As recounted above what the offender did at the minimum was:
1. Collect Baluch from the motel;
2. Drive Baluch to the departure point of the truck;
3. Provide a vehicle for Baluch;
4. Place that vehicle within a container;
5. Place that container onto a truck;
6. Drive that truck from Sydney to Queensland a distance not stated in the agreed facts but which is recognised as requiring him to drive the truck from 1:35 PM to 10:30 PM with a break only long enough to refill the vehicle which took 20 minutes;
7. Either caused or knew of, the creation of a false job docket to aid the offending.
The offender did all this, knowing, as found above, that the authorities were pursuing Baluch.
I accept however favourable for the offender that it cannot be said that he was a principal of what was occurring. It remains an open possibility that the offending was done at the behest of somebody else, and on the offender's own version, for financial reward of up to $10,000.
The extent of the involvement set out above however means that the offender's role was not simply the same, as was put in submissions, of some kind of drug mule. There is far more involvement in the organisation of this offence than might be expected of a person earning that description.
In my view, the degree of involvement of the offender places this matter in the mid-range of objective seriousness. I accept however that the offending was not very sophisticated albeit that I find that it was fairly well-planned. I say it was reasonably well-planned given the use of false dockets and the attempt to obscure by placing the car within the container. At the same time that the offending is lacking in sophistication is borne out by so much of what was done being done under the banner of the company in which the offender is very much involved. There was no attempt to hide the connection between the trucking company, the truck and the offender. For those reasons, I placed the offending albeit in the mid-range at the lower end of that range.
[4]
Subjective matters
The offender relied on a psychological report dated 19 October 2022. The history given is a 47-year-old married man with children aged 15, 10 and 9. He ran a successful transport company (Kit Bros) which struggled with the pandemic.
It is a real concern that this report, dated the day before the listed hearing date and based on an interview on 23 September contains (at [14]), an explanation for the offending totally at odds with the agreed facts. The version given to the psychologist is to say some unknown individual approached the offender saying he had a cousin who had been separated from his family in Queensland and that the offender understood the frustration of the border restrictions. The previous paragraph of the report records that the offender disagreed with the government actions concerning the pandemic, which he considered an overreaction. He said at the time of organising the transport he was not aware of who the person was and was provided with an address and telephone number and was to be paid.
The offender is maintaining what on the agreed facts is a false account. It impacts on my assessment of his insight and acknowledgement of wrongdoing and remorse.
That said the offender then describes his arrest as the saddest day of his life and does express remorse. I should also add that this maintaining of what is clearly at odds with the agreed facts is perhaps the one downside of the otherwise impressive subjective case.
In custody, he has been engaged in a positive way in respect of work and other programs. Visits from family have been limited in the Covid conditions.
The offender was born in Macedonia the eldest of three. The family came to Australia when he was 3 years old. At 10 the family returned to Macedonia. When the offender was 11 his father died, and at 15 he returned to Australia with his family. As the eldest child and having lost his father he took on greater responsibility than would ordinarily be borne by a young man.
He has consistently worked since the age of 12. He had a series of jobs before entering the transport industry in developing his own business which continues with his wife operating the business whilst he has been in prison.
There is no history of substance abuse. There is no diagnosis of any psychological or psychiatric condition.
His main goal is to return to support his family. He is keen to return to taking his children to their sporting activities and spending quality time with them. The report sets out information from the offender's wife and mother who I refer to below as they have provided their own testimonials.
The application of the DASS test showed extremely severe anxiety, mild depression and severe stress but was carried out in a week where there was much anxiety about a court case regarding the family home.
Another questionnaire designed to identify PTSD or complex PTSD did not indicate significant clinical results.
One conclusion reached at paragraph 64 is that the offender was motivated by financial gain which is accepted, but the report goes on to say it was to assist a family to reunite, which I reject. That paragraph goes on to say that he accepts full responsibility and acknowledges his poor judgment. If the acknowledgement actually acknowledged the wrongdoing that he now agrees he committed that would be more persuasive.
I accept the report shows a person with minimal criminal history, who has acted in a pro-social way throughout his life and who is committed to his family and business. He appears to have strong views in respect of some government matters in particular the pandemic but that is not something that counts against him.
There are matters in this case which remain unresolved. For example, just why does he maintain this false explanation of his affairs; why is he so interested in the court case in the news concerning Baluch; what is the nature of his association with the co-offender; just what does he know about the alleged offending of Baluch; and what if anything is the significance of being kidnapped and badly beaten?
It is well accepted that to take into account matters adverse to the offender on sentence the matters need to be proven beyond reasonable doubt. The false explanation is a relevant consideration as noted above, but the other matters do not allow any further findings as to the circumstances of the offending beyond those already made.
On the basis of the matters recounted in the psychologist's report, which (apart from the explanation) I largely accept, I accept the psychologist's view that there is little that needs addressing in terms of criminogenic needs. Not only on this evidence are the prospects of rehabilitation good but I find that this behaviour is an aberration.
The offender relied on four testimonials. There was no challenge to them. They all speak of Mr Kitanovski in very favourable terms. They note his community and family involvement including with the soccer club, a dance group and a church group and describe him as generous and compassionate. One notes his help provided to his elderly mother-in-law and of organising an apprenticeship for a friend's son who was having difficulties. He provides a good male role model not only for his own children it would seem but for other children who he helps through his involvement in soccer and other activities. It is not just attending the soccer games but the offender coordinates the kids and helps with training and planning.
There are also affidavits of his wife and mother-in-law. I consider it is significant that the support of close family extends to the detail given in the affidavits of the wife and the mother despite their almost certain inherent bias. They are consistent with the history set out in the psychological report. The wife's affidavit also sets out how they have both dealt with their middle child who has a serious medical condition. Mrs Kitanovski also talked of the offender's very high work ethic. She notes his alopecia has worsened in custody.
The mother's affidavit also confirms the matters in the psychological report as to his early contribution to the well-being of the family and talks of the difficulties with the civil war in Croatia and Yugoslav regions. She talks of friends of the offender being conscripted and a large number of them dying and of his exposure to wartime conditions and that he has not spoken to anyone about the effect this may have had on him.
Based on the wartime experiences of offender, the early death of his father, and the difficult times of the family, including his mother's extreme grief after her husband died, and the trauma of the deaths of friends, the offender made a submission that the offender had been raised in an environment of social disadvantage, and relied upon Bugmy principles. I reject that submission; the background of the offender is a difficult one, but is not such as to attract Bugmy principles. The difficulties were experienced in what was a supportive family environment, free of drug abuse and addiction. I do however take into account these matters as showing the offender to have been, and to be, a person of good character.
Lastly, there were two affidavits of the offenders' solicitor dated 18 and 19 October. They deal with subpoena records from New South Wales Justice Health and Corrective Services respectively. Those records reveal more difficulty with the offender's health than as otherwise revealed by the material and it is plain that custody has not been easy for the offender. It also notes the lockdowns the offender has experienced. The unchallenged evidence is that the offender has been subjected to 87 days of 24-hour lockdowns. I consider that a significant matter clearly showing custody to be more odorous than would ordinarily be expected and I take it into account.
The affidavit concerning Corrective Services material confirms the offender has been what might be termed a model prisoner and being very polite and compliant.
[5]
Criminal history
The offender has little criminal history with the most recent offence being in 2005. The history begins in 1993 when he was 18 and was convicted of stealing and fined $100, self-evidently a minor offence. In May 1994 there was a dangerous driving charge for which he was fined and was disqualified from driving for six months. The only other offending is in 2002 and 2005 which are offences of not supplying drivers particulars and refusing to produce a licence. Those offences are somewhat similar in character and appear to reflect the anti-authoritarian nature of the offender commented on above in relation to the pandemic. In my view that record, with the last offence being some 16 years prior to this offence, and itself being minor does not disentitle the offender to leniency. Rather it is consistent with the view I have formed of the offender as being pro-social and it is noteworthy that in the time of the lives of his children there has been no offending.
[6]
Sentencing considerations
Section 17A of the Act provides that a sentence of imprisonment shall not be imposed unless having considered all other available sentences the court is satisfied no other sentence is appropriate in all the circumstances of the case. There was no argument in this case that there was any other sentence appropriate other than a custodial one. The section requires the court to consider all other available sentences; it is plain that the seriousness of this offending makes inappropriate a fine or any community-based sentence not related to custody.
The question is what the length of the sentence should be and how should it be structured and on the submissions of the offender whether it could be a sentence with the imposition of an ICO.
Section 16A of the Act sets out the matters to which the court should have regard when passing sentence. It is not necessary to refer to each of those matters but only those which have application or potentially have application. The Crown has in its written submissions addressed the following matters.
The nature and circumstances of the offences. I have considered this in terms of objective seriousness above. Without detracting from the earlier findings, in short, I accept that this is a serious example of the offence and that there was a degree of planning involved. I further accept that the offender was aware that the Baluch was being pursued by police and that he was the subject of allegations of drug importation.
The need for the sentence to reflect deterrence. I accept that there should be a sentence where general deterrence is emphasised. It is crucial to maintain the integrity of the justice system.
It is necessary for the punishment to be adequate and that it reflect appropriate denunciation of the crime. Giving effect to this consideration is consistent with the maintaining of the integrity of the justice system.
The Crown makes the point that there has not been a great deal of cooperation by the offender with law enforcement. I accept that he has not been wholly cooperative given his initial answers to questions which were less than frank, an attitude that is reflected in his recent version given to the psychologist. Against that however is the admissions that he has made and further to try and assess what information he has not provided without supporting evidence is impossible and merely speculative. Thus while he does not benefit from cooperation beyond the benefit his early admissions and guilty plea, in my view his lack of cooperation just mentioned does not add to the severity of the sentence.
The offender has the benefit of a guilty plea which was accepted by the Crown to result in a 25% discount on sentence. The offender relied on the Victorian case of Warboys to found the submission that given the backlog of trials in the District Court of New South Wales is open to make a finding of 30%, on the basis that the backlog is worse in Covid times. As was noted in Perrin [2021] NSWDC 408 Warboys was decided at what might be described as the height of the pandemic. The position in New South Wales has steadily improved over the period that the offender has been in custody. Furthermore, there is no evidence of just what the backlog of cases has been in that period. In my view a 25% discount is appropriate. That however is not the end of the relevance of the pandemic. I wholly accept that custody is more onerous whilst the pandemic exists in particular by the way it has limited visits and results in the lengthy lockdown of prisoners in their cells for 23 or 24 hours per day for periods extending to as much as 10 days; whilst the evidence did not extend this far, the court is routinely informed of this and I take judicial notice of it. In the offender's case as shown by his solicitor's affidavit of 18 October the offender has been subjected to 87 days of 24-hour lockdowns.
In terms of remorse or contrition that is reflected in the guilty plea and the matters identified in the psychologist report. The one negative for the offender in this regard is the false story told to the psychologist meeting. That has been a recurring qualifier in considering this matter. Ultimately in my view the range of matters favouring the offender are significant enough for that matter not to detract significantly from what is a good subjective case.
The background and character and antecedents of the offender in my view are favourable to him as discussed above.
As to the subjective history of the offender the Crown points to the fact that the authorities such as R v Qutami (2001) 127 A Crim R 369 urge great caution about accepting statements made by an offender to report writers where there is no evidence given by the offender. As a general proposition that is undoubtedly true. In this case however, there is the sworn evidence of the mother and the wife which so far as it touches on the same matters set out in the report based on the offenders self-reporting are consistent with what he has told the psychologist. In those circumstances, it is appropriate to rely on the history he has given. His degree of remorse and acknowledgement of wrongdoing may arguably be viewed with some scepticism, but it would be consistent with his overall good character, and I do find he is remorseful. Furthermore, in relation to matters such as remorse and acknowledgement of wrongdoing it is difficult to see just how they could be effectively challenged in cross-examination in any event in the absence of evidence to the contrary which is here is absent apart from the inaccurate history given to the psychologist as to the offending.
As to a risk of reoffending I consider it negligible. I base this on the offender's lack of offending since 2005, his pro-social lifestyle, and his good character, and note the comments at [42] above.
The Crown also fairly refers to the impact on the offender's family. As set out in the wife's affidavit there has been difficulties with the offender's absence on both their business and in their family life. The recent case, referred to by the Crown, of Totaan v R [2002] NSWCCA 75 is authority that for Commonwealth matters the hardship experienced by a family need not be exceptional before this factor is considered. In this case the offender is the father of three children aged 15, 10 and 9. He and his wife care for those children as well as care for their business so that his absence impacts on every aspect of their life. Given his heavy involvement with the family and community activities I consider this would be an impact of some significance and sufficient to justify taking into account this factor. I note the section requires a consideration of the probable effect. The long period on remand has allowed the actuality of the hardship to be seen.
The Crown also referred to the need have regard to current sentencing practices throughout the Commonwealth. The Crown provided a table of cases. Those cases show a range of sentencing outcomes for section 43 matters from 2 years imprisonment served by way of periodic detention, through to a sentence of six years. Reference to the common law offence prosecuted pursuant to section 320 of the Victorian Crimes Act saw results of a suspended sentence of three years but imposed after 476 days in custody, and a one-year CCO.
Of course, every case is determined by its own facts, and consideration of "comparable" cases must be guarded. I note however the second of the above-mentioned Victorian cases was the very serious example of Pantazis where the conduct extended over a significant period and where the object of aiding an accused person to leave the country was achieved and, in my view, could be considered significantly more serious than the present matter.
The offender also provided useful written submissions and I have made remarks concerning submissions above.
I note the maximum sentence of 10 years. I have assessed the objective seriousness of this matter as being into the mid-range. The offender is entitled to a 25% discount. His prospects of rehabilitation are plainly high, perhaps best understood by my finding that the likelihood of reoffending is negligible. He has spent approximately 12 months in custody at a time when custody is more than usually onerous. I consider he poses a very low-level risk to the community and indeed is value added to the community.
In my view the appropriate sentence when considering all the matters discussed above prior to the application of the 25% discount is 2 ½ years so that after the application of the discount the term is 22 ½ months which I will round down to 22 months.
I consider the amount of time that he has already spent in custody is the appropriate time reflecting the minimum period that in all the circumstances he should spend in custody.
This means that the imposition of an ICO is not prohibited by section 68 of the Crimes (Sentencing Proceedings) Act. Further, in line with Mandranis, If an ICO was imposed now it would be for approximately 10 months. This is because it would be necessary to take into account the time served as an ICO can only be made to commence on the date of the order. If an ICO is not imposed then that same period would be spent on parole. Non-compliance with either the ICO or parole would very likely result in a return to custody.
The offender correctly makes the point that where the imposition of an ICO is not prohibited by section 68 the court has an obligation to consider an ICO. That is certainly the case where the argument is put as it has been here for the imposition of an ICO. That said as was noted in Wany, some cases are better served by intensive correction in the community rather than in custody; the point here is that on either route the balance of the term from the date of the sentence will be served in the community subject to compliance.
The offender submitted at the hearing that if the court was against the imposition of an ICO then otherwise the non-parole period had already been reached.
In deference to the submissions made I will consider the third step when determining whether or not to impose an ICO. The first two steps, namely that there should be a term of imprisonment, and the length of that term have been determined.
Section 66 (1) provides that community safety is the paramount consideration. Section 66 (2) requires the court to carry out an assessment as to whether the making of the ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. In this case I have determined that the risk of reoffending is negligible. Perhaps unusually the approach I take to this assessment in this case is that it is difficult to see what added benefit can be achieved by the offender remaining in custody; it would not address any perceived criminogenic characteristics as they are so few, if any, and he is a negligible risk to the community. The assessment carried out under subsection 2 is not determinative of whether an ICO is to be imposed. Suffice to say here my assessment is that the sooner the offender returns to the community and can contribute to his family and business life the more likely that life will return to what it was before free of offending. The position and the objectives of sentencing are not improved or served by further time in custody.
By section 66(3) the provisions of section 3A must be considered. Those matters have largely been canvassed above in the consideration of section 16A of the Act. The degree of rehabilitation of the offender to date, measurable by the likelihood of reoffending, which is negligible, together with degree of deterrence affected by 12 months in custody, and which is the offender's first time in custody, supports the imposition of an ICO.
As noted at the outset of the consideration of an ICO, there does seem to me little difference in whether the outcome is a parole period or an ICO. Nevertheless, the conclusion I come to is that had it been necessary to serve a further period of imprisonment it would have been appropriate for it to be served by way of an ICO. It might also be perceived that the ICO penalty has an element of leniency which may be of benefit to the offender in whatever circumstances may arise where this offending becomes relevant, whether it be in any future offending, or in some other aspect of his life where he may be called upon to explain it. For those reasons I will proceed by way of an ICO. The sentence imposed is arrived at by rounding down the 22 ½ month sentence to 22 months, and by rounding the time served up to 12 months.
[7]
Orders
Of the offence under section 43 of the Commonwealth Crimes Act the offender is convicted.
The offender is sentenced to a term of imprisonment, after allowing a 25% discount and rounding it down, to 22 months. Taking into account the 12 months allowed as already spent in custody the term will be 10 months to be served by way of the imposition of an intensive correction order.
The intensive correction order will date from today 26 October 2022 and expire on 25 August 2023 and shall be on the following terms:
That the offender not commit any offence.
That the offender be subject to the supervision of community corrections in which regard I direct that he attend the Parramatta office of community corrections by no later than Wednesday 2 November 2022.
That there be the additional condition that the offender not associate with Mostafa Baluch or Mende Trajkoski.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 February 2023