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[2021] ACTSC 24
Supreme Court of the ACT
2021-02-16
Mossop, J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v Sidaros (No 6)
Citation: [2021] ACTSC 24
Hearing Date: 15 February 2021
Decision Date: 16 February 2021
Before: Mossop J
Decision: See [65]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – intentionally inflicting grievous bodily harm – attempted arson with intent to endanger life – aggravated burglary – arson – offences in the mid range of objective seriousness – act endangering life – dishonestly riding in a motor vehicle without consent – above mid range of objective seriousness – failing to properly store ammunition – low end of objective seriousness – found guilty in judge alone trial – offending occurred in the context of outlaw motorcycle gang activities – medium risk of reoffending – ongoing association with an outlaw motorcycle gang – no acceptance of responsibility or remorse – family support – young offender – reparation order – sentences of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – principles of sentencing following a retrial – no material difference in facts found – original sentences not manifestly inadequate or affected by specific error – term of original sentences not exceeded
Legislation Cited: Crimes Act 1900 (ACT), ss 19, 117(1), 27(3)(d) Crimes (Sentencing) Act 2005 (ACT), s 19 Criminal Code 2002 (ACT), ss 44, 45A, 312, 318(2), 404(1) Firearms Act 1996 (ACT), s 181(1)(b)
Cases Cited: Giotas v R [2008] NSWCCA 287 R H McL v The Queen [2000] HCA 46; 203 CLR 452 R v Hannes [2002] NSWSC 1182; 173 FLR 1 R v Sidaros (No 4) [2020] ACTSC 87 Tarrant v R [2007] NSWCCA 124; 171 A Crim R 425
Parties: The Queen (Crown) Axel Sidaros (Offender)
Representation: Counsel T Hickey (Crown) M Thangaraj SC and S Pararajasingham (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers: SCC 312 of 2018 SCC 313 of 2018
MOSSOP J:
Introduction
(a) count 2: intentionally inflicting grievous bodily harm on Peter Zdravkovic contrary to s 19 of the Crimes Act 1900 (ACT);
(b) count 3: attempted arson with intent to endanger life contrary to s 117(1) of the Crimes Act and s 44 of the Criminal Code 2002 (ACT);
(c) count 4: aggravated burglary contrary to s 312 of the Criminal Code;
(d) count 5: arson contrary to s 404(1) of the Criminal Code;
(e) count 6: act endangering life contrary to s 27(3)(d) of the Crimes Act; and
(f) count 7: dishonestly riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code.
All counts, with the exception of count 7, are offences of joint commission under s 45A of the Criminal Code.
The maximum penalty for intentionally inflicting grievous bodily harm is 20 years’ imprisonment. The maximum penalty for attempted arson with intent to endanger life is 25 years’ imprisonment. The maximum penalty for aggravated burglary is 20 years’ imprisonment, a fine of $300,000 or both. The maximum penalty for arson is 15 years’ imprisonment, a fine of $225,000 or both. The maximum penalty for an act endangering life is 10 years’ imprisonment. The maximum penalty for dishonestly riding in a motor vehicle without consent is 5 years’ imprisonment, a fine of $75,000 or both.
After the trial concluded and judgment was reserved the offender entered a plea of guilty to a transfer charge of failing to properly store ammunition contrary to s 181(1)(b) of the Firearms Act 1996 (ACT). The maximum penalty for this offence is imprisonment for one year.
The judge alone trial represents the second time that the offender was tried for these offences. He was first tried before a jury in November and December 2019 and found guilty of all the current charges, as well as an additional charge of attempted murder. He was sentenced by Murrell CJ in April 2020 to a head sentence of 14 years’ imprisonment: see R v Sidaros (No 4) [2020] ACTSC 87. His convictions were later quashed by the Court of Appeal in July 2020 and a new trial was ordered.
Facts
On 28 June 2018 at approximately 10:30pm, four people entered the residential premises of Peter Zdravkovic at 20 Carter Crescent, Calwell. Three people were captured on CCTV entering from the rear of the property. In the order that they appeared in the CCTV, they were identified as offender 1, offender 2 (who I found to be Mr Sidaros) and offender 3. They were wearing hoodies, full length pants and gloves. Offender 1 was carrying a .45 calibre handgun and Mr Sidaros was carrying an Adler 12-gauge shotgun. They walked through the backyard onto the patio. One of the intruders opened the carport roller door and another offender driving a vehicle (offender 4) pulled up to the carport with jerry cans of petrol (The entry into the carport and the covered outdoor area at the back of the house is count 4 – aggravated burglary). Offenders 3 and 4 spread the petrol over the cars in the carport and the back driveway (a Mercedes, a BWM and a ute) and around the back patio of the house.
Offenders 1, 4 and Mr Sidaros approached the rear glass sliding door of the house, which leads from the back patio into the living area. At about this time Mr Zdravkovic stepped out of the shower and was standing in the living room next to the doors which led into the bathroom and master bedroom. Mr Zdravkovic’s partner, Tayysha Senthavysouk, was lying on the bed in the master bedroom, watching videos on her phone. The couple’s three-year-old child was in his bedroom, on the other side of the bathroom from the master bedroom. The master bedroom was on the street side of the house. The child’s bedroom was on the backyard side of the house.
Mr Zdravkovic heard a loud bang. He saw people outside with guns. He grabbed his gun, a Sako rifle, from beside his bed. There was an exchange of fire. Shots from the shotgun and handgun were fired through the glass sliding door into the living room. This shattered the glass sliding door and caused damage to the living room, the doorway to the master bedroom, and the mattress, window and blinds in the master bedroom. Mr Zdravkovic also fired shots in the direction of the intruders.
During the exchange of fire Mr Zdravkovic yelled at Ms Senthavysouk to “get down”. She hid on the floor in between the mattress and the window of the master bedroom. One of the shots fired by offender 1 hit the mattress and passed through it from the doorway side of the bedroom, in the direction of the window. The bullet became lodged in the edge of the mattress, very near to where Ms Senthavysouk had been hiding on the ground (This is count 6 – act endangering life).
At some point during the shooting Mr Zdravkovic received a gunshot wound to his left hand. It is not clear whether Mr Sidaros or offender 1 fired the shot that severed his finger. He was taken to Canberra Hospital later that night and triaged as a category two patient, indicating that he had a potentially life-threatening or limb-threatening injury with the potential to deteriorate. He was assessed and diagnosed with a left middle finger comminuted fracture requiring surgical amputation at the level of the middle phalanx. He also had a left ring finger laceration, extensor tendon laceration on the left index finger which required surgical repair, an injury to his distal fat pad and two glass foreign bodies which were removed from his right foot (The infliction of the wound to Mr Zdravkovic’s finger is count 2 – intentionally inflicting grievous bodily harm).
Victim impact statement
Ms Senthavysouk prepared a victim impact statement. Her statement detailed the serious and ongoing impacts that the attack has had on her and her family. She described the event as “traumatic” and stated that it has changed her life. She experiences ongoing fear that the intruders will come back again. She takes medication and sees a counsellor to deal with depression and anxiety, although she still experiences panic attacks and has difficulty sleeping. She finds it hard to cope with everyday life and struggles to concentrate properly at work. She stated that some people look at her differently when they learn that she was shot at. She reflected on the possibility that she could have died and her appreciation for her partner having been present.
Ms Senthavysouk was particularly affected by the fact that her son was at home at the time. After the attack her son was crying and as she went to pick him up, he began shaking uncontrollably. This memory continues to haunt her. She described the feeling of helplessness when she could hear her son crying but could not get to him, and not knowing whether he was injured. She remembers thinking that she was going to die.
She described the continued effect of the attack on her son. She stated that he cannot sleep properly and is particularly scared at night-time. He talks about the “bad guys” and says that he is scared they will come back and shoot him. She expressed fear and concern at the long-term impacts of these memories upon her son.
As a result of the attack, she feels like she has lost almost everything. Her car was burnt in the fire, the house was damaged and she can no longer live there. She feels like her home was taken away from her and now she has to start afresh.
These impacts are consistent with what might be expected to have arisen from offending of the type which occurred.
Objective seriousness
Each of the offences was committed in the context of participation in the activities of an outlaw motorcycle gang. The general motive for the offences was retribution and extra-curial punishment.
The offender’s underlying motive was to do what was necessary in service of the gang in order to become a patched member of the gang.
The offences occurred at night and within the home of Mr Zdravkovic and his family.
The offences involved significant planning. A stolen vehicle was obtained, loaded guns were carried, jerry cans filled with petrol were brought to the site and the offenders’ identities were deliberately obscured.
The offender did not have a primary role in planning the incident. Rather, he had a low status within the Comancheros inconsistent with being a driving force in the planning or execution of the attack on Mr Zdravkovic. Although he played a significant part in the attack on Mr Zdravkovic, the CCTV footage indicates that he was a follower rather than a leader during the incident.
The fact that the offences were committed in company is an aggravating feature of counts 2, 3, 5 and 6. In relation to count 4, being in company is an element of the offence that was charged.
Count 2: intentionally inflicting grievous bodily harm
Count 3: attempted arson with intent to endanger life
Count 4: aggravated burglary
Count 5: arson
Count 6: act endangering life
Count 7: dishonestly riding in a motor vehicle without consent
Transfer charge: failing to properly store ammunition
Subjective circumstances
The offender is 26 years old and was 23 at the time of the offending. He was born in NSW and moved with his family to the ACT in 2010. He has three younger brothers and reports a positive relationship with his parents and siblings. He receives regular visits from his family members while in custody. He lived in his family home with his parents and siblings prior to entering custody and can reside at this accommodation when he is released into the community.
He is currently single and has no children.
The offender completed Year 12 and obtained certificates III and IV in fitness. He commenced a university degree in sports science but decided to pursue a carpentry apprenticeship after the first year. He had almost finished the apprenticeship prior to the offending. He was employed while in the community and worked for various construction companies. He reported no issues with managing his finances.
The offender reported that most of his friends are work colleagues or members of the Comancheros. At the time of both pre-sentence reports (prepared in January 2020 and February 2021) he confirmed that he remains a current member of the Comancheros. He declined to comment on his future plans regarding continued membership.
He has been involved in violence within the prison for which he has been disciplined. He has maintained his stated hostility towards the authorities.
He commenced irregular cannabis use at the age of 15. By the age of 18 he started using cannabis daily and continued to do so until his arrest. From the age of 21 years he used cocaine monthly and illegally obtained prescription medication monthly. He reported that he has engaged in experimental methamphetamine use, although this is not ongoing.
The offender has had some contact with mental health services while in custody. He was reviewed in July 2019 following thoughts of self-harm and suicidal ideation. The updated pre-sentence report states that the offender has no current physical or mental health conditions.
While in custody he had not participated in any programs, education or employment, although he did commence the Solaris Therapeutic Community program a few days before the sentencing hearing.
The evidence of his father describes a history of the offender perceiving that he did not fit in and had difficulty making friends, and of being bullied. The evidence of his mother is of ongoing family support upon his release from custody. That is consistent with the other evidence which indicates that he comes from a successful, law-abiding family who, whilst remaining strongly supportive, must be despairing at the conduct of their child and the situation into which he has put himself.
He has maintained that he has no knowledge of the offences, with the exception of the transfer charge. Consequently, there has been no acceptance of responsibility and no expression of remorse.
Time in custody
Consideration
It will be obvious that in this case the nature of the offending is such that no other sentences apart from significant sentences of full-time detention would be appropriate.
So far as the purposes of sentencing are concerned, it is plain that having regard to the gang-related nature of the offending and the gravity of the offending, general and specific deterrence, punishment, protection of the community and recognition of the harm done to the victims must all be significant sentencing considerations. The offender’s youth and positive family circumstances mean that, notwithstanding his ongoing involvement with the gang while in custody, the prospect of his rehabilitation must be taken seriously.
So far as the future is concerned, there is clearly a tension between his ongoing involvement with the Comancheros and the possibility that, with family support and increasing maturity, he is able to cease involvement with outlaw motorcycle gangs. I accept that his ongoing association with the Comancheros would clearly be very adverse to his prospects of rehabilitation. That must be balanced against his youth and ongoing strong family support. How that tension works itself out cannot be predicted with confidence at this stage. However, the sentence imposed should not rule out the significant possibility that the offender’s expressed attitude and associations will change upon release from custody.
I have had regard to the comparable cases and statistics referred to in the earlier sentencing decision and, in relation to the cases, agree with the Chief Justice’s comments at [95] as to their utility.
It is also necessary to take into account the sentences imposed by the Chief Justice. Although I have attributed a different description to the objective seriousness of the offending to that in the Chief Justice’s reasons, I do not perceive that there is any difference of substance. Similarly, the material available in relation to the subjective circumstances of the offender is largely the same as that which was before her Honour and I do not perceive there to be difference in our assessments of his subjective circumstances. At least in so far as the individual sentences imposed by the Chief Justice for each offence are concerned, the sentences imposed should be regarded as the upper limit of an appropriate sentence because otherwise an offender may be seen to be worse off as a result of having brought a successful appeal against a conviction: R H McL v The Queen [2000] HCA 46; 203 CLR 452 at [23], [72]. That position will not apply where the facts found are different, if the relevant sentence imposed was a manifestly inadequate one or if the sentencing was infected by some other error: R v Hannes [2002] NSWSC 1182; 173 FLR 1 at [84]; Tarrant v R [2007] NSWCCA 124; 171 A Crim R 425 at [31]; Giotas v R [2008] NSWCCA 287 at [49]-[51]. The facts that I have found do not differ in material respects from those found by the Chief Justice. I do not consider that the individual sentences imposed by the Chief Justice were manifestly inadequate or affected by specific error. It is therefore a circumstance in which, although I must separately exercise my sentencing discretion to set appropriate sentences for each offence, the individual sentences imposed previously should not be exceeded.
Orders
The orders of the Court are:
On the charge of attempted arson with intent to endanger life (CC2018/11025, count 3) the offender is convicted and sentenced to imprisonment for six years starting on 30 August 2018 and ending on 29 August 2024.
On the charge of aggravated burglary (CC2018/11022, count 4) the offender is convicted and sentenced to three years’ imprisonment starting on 30 August 2018 and ending on 29 August 2021.
On the charge of intentionally inflicting grievous bodily harm (CC2018/11028, count 2) the offender is convicted and sentenced to four years’ imprisonment starting on 1 March 2022 and ending on 28 February 2026.
On the charge of arson (CC2018/11020, count 5) the offender is convicted and sentenced to imprisonment for four years starting on 1 March 2023 and ending on 28 February 2027.
On the charge of arson I make a reparation order under s 19 of the Crimes (Sentencing) Act 2005 (ACT) requiring the offender to pay $20,000 to Peter Zdravkovic.
On the charge of act endangering life (CC2018/11023, count 6) the offender is convicted and sentenced to imprisonment for four years starting on 1 March 2024 and ending on 29 February 2028.
On the charge of dishonestly riding in a motor vehicle without consent (CC2018/11027, count 7) the offender is convicted and sentenced to imprisonment for 18 months commencing on 30 November 2026 and ending on 29 May 2028. 8. On the charge of failing to properly store ammunition (CC2018/13863) the offender is convicted and sentenced to 21 days’ imprisonment commencing on 9 May 2028 and ending on 29 May 2028.
The non-parole period is five years and six months commencing on 30 August 2018 and ending on 29 February 2024.
I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 22 February 2021
R
Sidaros
Offender 4 poured petrol and threw a jerry can into the living room before fleeing with the other offenders out the front of the carport and into the waiting vehicle. As they were fleeing, offender 3 ignited the petrol which immediately started a fire on the cars in the carport and on the patio. The fire did not travel to the petrol which had been poured inside the house. This was likely because offender 3 was interrupted while creating a trail of petrol from the cars to the rear sliding door. (The attempt to burn the house amounts to count 3 – attempted arson with intent to endanger life, the lighting of the vehicles is count 5 – arson).
The offenders drove away in the vehicle. This was a silver Toyota Prado which had recently been stolen (This gives rise to count 7 – dishonestly riding in a motor vehicle without consent). The vehicle was found burnt out shortly afterwards.
The offending needs to be understood in the context of a split between two opposing factions of the Comanchero outlaw motorcycle gang and the escalation of hostilities that ensued. Prior to 2018, Mr Zdravkovic was the commander of the ACT chapter of the Comancheros. In early 2018 there was a division in the ACT chapter. As a result, some of the ACT members became aligned with the sergeant-at-arms (or second in command) at the time, Pitasoni Uluvalu, in opposition to Mr Zdravkovic. Mr Zdravkovic was effectively kicked out of the gang while Mr Uluvalu, also known as “Soni”, became the new commander.
Mr Zdravkovic had left the Comancheros in “bad standing” and, consequently, there were ongoing tensions between Mr Zdravkovic and members of the Comancheros. On 31 January 2018 Mr Zdravkovic took photographs of himself wearing Comanchero colours (meaning, a vest or branded Comanchero clothing) and holding the colours of other members. On 17 March 2018 an incident occurred where some Comanchero members entered Mr Zdravkovic’s backyard, a scuffle broke out and a firearm was discharged with a bullet grazing Mr Zdravkovic’s head. The following day Mr Zdravkovic took photographs of himself burning Comanchero colours and posted these to social media with captions that included “You will never take my colours like I took yours”. This was a highly provocative action within the culture of the Comancheros.
On or around 19 March 2018 a Snapchat message was posted to the account associated with Roger Palavi, a person with links to the Comancheros, which stated “…peter zdravkovic you and your crew got 24hours to hand over everything bikes, your AMG, colours everything or else the HITSQUAD gonna show up to your family’s..” This was consistent with Mr Zdravkovic having been kicked out of the club in bad standing and there being an implication that violence would be directed towards Mr Zdravkovic if he did not comply with the demands.
On 3 or 4 June 2018 police spoke to Mr Zdravkovic and Ms Senthavysouk and informed them that police had credible information of a plot to cause harm to them.
The offender had become involved with the Comancheros at some point around March 2018. Messages between the offender and Soni indicate that the offender was aligned with Soni’s faction within the Comancheros. The offender was seeking to become a member, requiring him to spend a period as a “nominee”. This is the first level of membership progression within the Comancheros and generally requires prospective members to spend 12 months as a nominee, with six months in the first nominee stage and six months in the second nominee stage. Nominees are expected to follow the orders of their superiors and demonstrate active engagement with the activities of the gang, including violence. While first stage nominees can wear Comanchero colours with a “bottom rocker” patch on the back and second stage nominees are given a “top rocker”, only members are entitled to wear the centre patch involving the image of a condor.
As at June 2018 the offender had demonstrated a committed and enthusiastic involvement with Soni’s faction of the Comancheros.
On 10 June 2018 the offender searched the internet for “carter cresceant caldwell”. On the same date a screenshot was captured on the offender’s phone of a Google Maps satellite image of Carter Crescent with a pin dropped on the nature strip across from 20 Carter Crescent.
On 26 July 2018 police executed a search warrant at the offender’s residence. Shoes, gloves and the offender’s Adler A110 shotgun were seized. During the search a note was found in the offender’s bedroom drawers with “10 Carter Cr Caldwell” written on it. The shotgun had accessories on the side and butt of the weapon. These accessories held 11 shotgun cartridges which were seized and examined (The storage of the cartridges with the shotgun gives rise to the transfer charge – failing to properly store ammunition).
He is assessed by the author of the updated pre-sentence report as at a medium risk of reoffending because of his ongoing antisocial associates and attitude to offending.
I do not place any weight on the very tentative conclusion of Dr Richard Furst that there may be relationship between his use of drugs and his involvement in the Comancheros. The factual basis for that conclusion is not clear and it is not clear whether or not the conclusion is one within the expertise of Dr Furst. Even if accurate, it would not be a significant matter in terms of sentencing. I have, however, taken into account the offender’s illicit drug use as part of his subjective circumstances.
His only criminal history involves presently irrelevant minor traffic matters.
It is very clear that the offender continues to have the support of his parents and that such support will be of great assistance to him upon his release from custody if he chooses not to engage with criminal associates.
The picture presented of the offender is of someone who craved acceptance and thought that he had found that amongst the members of the Comancheros. Within prison he has continued to associate with the Comancheros and identify as part of the gang. It is not clear whether that reflects an ongoing intention to associate with those involved in criminal outlaw motorcycle gang activities or whether it is a pragmatic response in the circumstances in which he finds himself. It is, unfortunately, inconsistent with the expression of any remorse or acceptance of responsibility for the conduct. It makes it difficult to assess his longer-term prospects of rehabilitation.
The significant difference between the sentencing exercises is that the offender is not being sentenced for attempted murder as he was found not guilty on that charge. That means that the overall sentence imposed must reflect the gravity of the proved offending.
I accept the submission made on behalf of the offender that the individual sentences imposed by the Chief Justice were not reduced by considerations of totality but that, instead, the issue of totality was addressed by the extent to which the offences were made concurrent with each other. In the present case I have achieved what I consider to be an appropriate aggregate sentence through concurrency rather than by shortening the individual sentences. In only one case (count 3) have I imposed a sentence that differs from that imposed by the Chief Justice.
In relation to the transfer charge, having regard to the fact that the charge was amended and the plea of guilty entered to the amended charge, I will allow a 25% discount on the sentence that I would otherwise have imposed on that charge.
A reparation order is sought. Notwithstanding that the amount sought was some $213,126, the Crown accepted, having regard to the principle of restraint in sentencing following a retrial referred to above, that the amount of any reparation order should not exceed the amount ordered by the Chief Justice, namely, $20,000. The available documents establish a loss of at least that amount. While counsel for the offender submitted that no order should be made because it would lack utility, the evidence does not establish the offender’s lack of means. A reparation order in the present case will be no less useful than in any other case where it is imposed upon a person serving a sentence which is not wholly or partly suspended, or does not otherwise involve a good behaviour order. I will therefore make a reparation order in the sum of $20,000 in relation to the charge of arson.
The effect of the orders which I am about to pronounce will be a head sentence of nine years and nine months with a non-parole period of five years and six months. The non-parole period is approximately 56% of the head sentence which is similar to the relationship in the sentences imposed by the Chief Justice. The offender’s youth and potential for rehabilitation are the reasons for setting a non-parole period at the low end of the usual range.