Director of Public Prosecutions v Pandilovski
[2023] VSC 514
•30 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0371
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZORAN PANDILOVSKI | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 June 2023 |
DATE OF JUDGMENT: | 30 August 2023 |
CASE MAY BE CITED AS: | DPP v Pandilovski |
MEDIUM NEUTRAL CITATION: | [2023] VSC 514 |
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SENTENCE — Murder — Standard sentence offence — Family violence — Offender choked estranged wife to death in her own home— Offender concealed deceased’s body in storage room of deceased’s home — Not isolated incident of violence towards deceased —Late plea of guilty — Some remorse — Plea of guilty in time of pandemic trial back logs — Harsher conditions on remand because of pandemic — Loss of relationship with only child of marriage — Minimal criminal history — Reasonable prospects of rehabilitation — Sentencing Act 1991, ss 5, 5B & 6AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For Zoran Pandilovski | Mr D Hallowes SC | Stephen Andrianakis and Associates |
HIS HONOUR:
CIRCUMSTANCES OF OFFENDING
Zoran Pandilovski, on the morning of 14 July 2020, Elaine Pandilovski, your former wife and the mother of your only child, was at home by herself. Your son, who was then aged 12, was having a sleepover at his maternal grandmother’s house.
You arrived at Elaine’s house in your car at about 7:45am. At about 9:25am, you drove away, by which time Elaine was dead, having been choked to death by you. It seems likely that the killing occurred in the loungeroom.
It is not contended by the prosecution that you went to the house to kill Elaine. It is agreed that you went there to collect your son’s iPad or computer which needed repair.
After killing her, you moved Elaine’s body to a storage room at the back of the garage. You told forensic psychologist Dr Barth that you moved Elaine’s body into the storage room because you did not want your son seeing the body when he returned home.[1] Whether or not that be so, it was a modest attempt at concealment of the body. It was inevitable that Elaine’s body would be found within a relatively short time frame.
[1]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [41].
After you moved Elaine’s body into the storage room, you perversely took two photographs of her in‑situ using her mobile phone, and you took Elaine’s mobile with you when you left the house at 9:25am. When Dr Barth asked you why you took those photos, you said “I can’t remember taking the photos, I have to have done it, the state of mind I was in, I was not there (mentally).”[2] Whilst the prosecution’s contention that they were “trophy photos” is not without merit,[3] I am not satisfied beyond reasonable doubt that that was your motivation.
[2]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [42].
[3]Cf R v Pandilovski (Ruling No 1) [2022] VSC 552 at [28].
You were involved in a head‑on collision not long after leaving Elaine’s house. You veered into the path of an oncoming car at high speed in what is likely to have been a suicide attempt. Remarkably, no one was killed. You were taken to Royal Melbourne Hospital. At the hospital, you picked up scissors and threatened to harm yourself. You were discharged from the hospital the next afternoon and taken into custody.
After Elaine failed to attend work or respond to text messages on 14 July 2020, some of her work colleagues attended her home that afternoon. At the same time, Elaine’s mother attended the home with your son. Elaine’s mother let herself in but did not find Elaine. Neither did Elaine’s sister, Jody Arnarellis, when she attended the home in the late afternoon. But in the evening of 14 July 2020, police attended the home and found Elaine’s body in the storage room.
The maximum penalty for the offence of murder is life imprisonment. And the standard sentence is 25 years’ imprisonment.
Intention to kill
One matter in dispute at your plea hearing was whether I should be satisfied beyond reasonable doubt that you intended to kill Elaine. The pathologist who conducted the autopsy, and gave the cause of death as “compression of the neck”, noted the following injuries to Elaine’s body:
·Bilateral superior thyroid cornu fractures;
·Bruising in the left paralaryngeal soft tissues and within the superior aspect of the right sternomastoid muscle;
·Facial, orbital and laryngeal mucosal petechiae;
·Lymphocytic thyroiditis; and
·Minimally granular renal cortices.
He also said this:
Although the length of time required for the application of force to produce the findings observed in this case is not able to be determined with certainty, the presence of prominent densely distributed petechiae suggests a period of tens of seconds and potentially longer.
Given the duration of force needed to choke Elaine to death, and your failure to contact 000, I am satisfied that it was your intention to kill.
Victim Impact
Elaine was 44 at the time of her death. The way she died would have been terrifying. Not only did you cut short her life, but you have also visited great suffering and loss on her loved ones. Their mental and physical health have been damaged by your crime.
Six victim impact statements were tendered. The makers of those statements were:
·Kathy Dafopoulos, Elaine’s mother;
·Mary Yoannidis, Elaine’s aunty;
·Steven Dafopoulos, Elaine’s brother;
·Acacia Arnarellis, Elaine’s niece; and
·Kathy Falzon and Caroline Stamp, both friends of Elaine.
It is clear from these moving statements that the great suffering caused by your offending remains acute.
Assessment of objective gravity
Another matter in dispute at your plea hearing was whether your offence was an upper range example of the offence of murder or a mid‑range example.
Had it been a premeditated killing, I would not have hesitated to view it as an upper range example of murder, but the prosecution conceded there was no evidence of premeditation. I consider that yours is an upper mid‑range example of murder. The main circumstance of aggravation is that it was a domestic murder, carried out in Elaine’s own home against the backdrop of past violence on your part towards her.
PROCEDURAL HISTORY
On Monday 17 April 2023, almost three years on from the offence, you pleaded guilty to the murder. On the preceding Thursday, a jury had been empanelled to try your case but for reasons which are not relevant to your sentencing, that jury was discharged on the Friday. After the weekend break, we were about to empanel a fresh jury when your counsel announced you would be pleading guilty and you were promptly arraigned and entered your plea.
Whilst, years before, you had offered to plead guilty to manslaughter (on 11 June 2021 to be precise), it was a very late plea to murder. But the lateness of your plea does not mean that it is of little significance. On the contrary, it is a significant sentencing consideration for its utilitarian benefits. Most importantly, it brought certainty and finality. And it spared witnesses (including members of Elaine’s family) the ordeal of having to testify at your trial. It also saved the community the cost of a trial.
Your counsel contended that I should find that, although it was a late plea in the context of a strong prosecution case, you are remorseful. He referred to your attempts at self‑harm shortly after the murder, the fact of your ultimate plea of guilty and the expressions of remorse you made to forensic psychologist Dr Barth, to whose report I will refer in more detail shortly. I am prepared to accept that you are remorseful.
CIRCUMSTANCES OF OFFENDER
I turn to your personal circumstances.
Biography
You were born on 5 June 1975 in Macedonia, making you 45 at the time of the murder and 48 now. You have one younger brother.
Your family emigrated to Australia when you were nine. Your parents, who are still alive, are retired factory workers. They and your brother are still supportive of you.
You and Elaine began your relationship in your teens. You both attended Lalor North Secondary College, where you completed Year 12.
After finishing school, you attained a diploma in marketing from RMIT University and have mainly worked as a sales and account manager in the pharmaceutical industry. To your credit, over many years you have been a hard worker and a successful one.
You became engaged to Elaine in 1999 and married her in 2002.
On 11 February 2008, your only child, a son, was born.
In November 2019, after an altercation between you and Elaine, Elaine attended Mill Park police station alleging that you had been physically violent towards her. She obtained an intervention order against you. You moved out of the family home. You abided by that intervention order. Elaine did not seek an extension of the order when it lapsed after 12 months. She told her mother that you had been doing counselling and had appeared to be calmer, friendlier and more affectionate.
You maintained contact with your son and attended the family home on occasion for lunch and dinner with him and Elaine. You say that at times you and Elaine continued to have intimate relations.
In February 2020, you indicated to a mutual friend that you were hopeful of a reconciliation with Elaine. Elaine told that same friend that that was not going to happen.
During the lockdowns of 2020, you told Dr Barth that you felt increasingly isolated and drank more alcohol,[4] although there is no suggestion that you were substance affected on the day you murdered Elaine.
[4]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [34]. I note that in [34] Dr Barth incorrectly refers to late 2021/early 2022 as the relevant period; however, during your plea hearing, your counsel advised “I've spoken to Dr Barth, who confirms that's late 2019, early 2020” (see Transcript of Plea Hearing, p.27).
Criminal History
You have one relevant prior conviction, from 1999. It was criminal damage of a car in which Elaine and her sister were seated. As your counsel properly acknowledged, this was not an isolated act of violence towards Elaine. Regrettably, there were other incidents of violence spread over a number of years. The murder did not happen “out of the blue”, to borrow your counsel’s phrase. As indicated in several of the victim impact statements, Elaine complained to others about ongoing physical abuse from you.
Psychological Report
I turn now to Dr Barth’s report on you.
The main points I take from that report are these:
·Sources of stress or conflict in your marriage included finances and your own repeated infidelity.
·Dr Barth stated that you are “prone to maladaptive behaviours when [you] feel that [your] personal needs are not being met and when [you are] lacking a sense of control in life. This has been displayed in the form of periodic binge drinking, irregular drug use, erratic gambling and extra‑marital affairs.”[5]
·You suffer depressive and anxiety related symptoms but according to Dr Barth the “symptoms are not sufficiently severe at this time to warrant the diagnosis of a psychological disorder.”[6] In Dr Barth’s opinion, your symptoms are proportionate to the situation you find yourself in.
·Dr Barth assessed you as a low‑moderate risk of violent re‑offending. He added “[your] risk of violence is most relevant with regards to intimate partner violence.”[7]
·You expressed remorse for your actions. You told Dr Barth “I can’t believe the trauma I have caused so many people … I sit there every day in my cell and think about the impact on everyone, it’s overwhelming.”[8]
·With regard to your son, Dr Barth writes “Mr Pandilovski noted that [his son] was diagnosed with autism and described him as a ‘beautiful gift’.”[9]
·Dr Barth also writes that “[You] told [him] that [you] initially had some contact with [your son] via audio visual link but that [your son] has now ceased all communication with [you]. [You] explained that “[you] completely understand his decision” and expressed [your] gratitude to Elaine’s mother and aunty for their devotion to [your son].[10]
·You told Dr Barth that after you were incarcerated “the prospect of being separated from [your son] for a prolonged period added to [your] distress.”[11]
[5]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [50].
[6]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [46].
[7]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [59].
[8]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [43].
[9]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [24].
[10]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [28].
[11]Psychological assessment report of Dr. Mathew Barth dated 9 June 2023, [35].
Character References
Your younger brother Zac (Zvonko) Pandilovski provided a character reference on behalf of himself and your parents, who are unwell.
Your brother and your parents are shocked and distressed by your crime but continue to offer you their love and support.
Regarding your son, your brother and parents lament the loss of contact with him but the reference states “We are grateful that [he] has the support of Elaine’s family and we are aware that they are caring, loving and committed to [him].”
Progress in Custody
You have spent most of your time on remand at the Melbourne Remand Centre.
You have completed a number of courses for which certificates were tendered. Most significantly, the courses have included anger management.
It was put, and not disputed, that you have been a model prisoner whilst on remand.
SUMMARY OF MITIGATING CIRCUMSTANCES
It is convenient at this point to summarise the circumstances of mitigation:
·Your plea of guilty, which has additional utility because it was entered in a time of trial backlogs due to the pandemic.
·You are remorseful.
·You experienced harsher prison conditions for over two years because of the pandemic.
·There has been delay in finalisation of your case because of the pandemic.
·You have lost, at least for the foreseeable future, your relationship with your son. Though only you are to blame for that state of affairs, it is nonetheless a real hardship for you which adds to the hardship of prison life.
·Finally, you have reasonable prospects of rehabilitation.
SENTENCE
Section 5 of the Sentencing Act 1991 sets out the purposes of sentencing. Just punishment, denunciation and general deterrence are of particular importance in your case.
Because I consider that you have reasonable prospects of rehabilitation, I give less weight to specific deterrence and protection of the community from you.
I hope that the difference between the head sentence and the non‑parole period will promote your rehabilitation, which is not only in your interests but also in the community’s interests.
Current Sentencing Practices
I was referred to a number of standard sentence domestic murder cases by both the prosecution and defence. The prosecution referred to the cases of Margolis,[12] Coman,[13] Kingdon[14] and Cameron.[15] The defence provided a table of standard sentencing domestic murder cases which included those referred to by the prosecution (except Coman) as well as Fairhall,[16] Gonzalez[17] and Robertson.[18]
[12]R v Margolis [2021] VSC 341.
[13]DPP v Coman [2023] VSC 159.
[14]DPP v Kingdon [2021] VSC 858.
[15]DPP v Cameron [2020] VSC 334.
[16]DPP v Fairhall [2022] VSC 444.
[17]DPP v Gonzalez [2022] VSC 331.
[18]R v Robertson [2019] VSC 145.
The sentences imposed in these cases were head sentences of between 23 to 29 years and non‑parole periods of between 16 years 3 months and 23 years.
I derived some assistance from these standard sentencing cases, though of course, each case has its own particular features.
Sentence
Mr Pandilovski, please stand.
For the murder of Elaine Pandilovski, I sentence you to 24 years’ imprisonment.
I fix a non‑parole period of 17 years.[19]
[19]Appropriately, it was not submitted by counsel that I should impose a non‑parole period of less than 70% of the head sentence.
I declare that you have served 1141 days by way of presentence detention.
I acknowledge that the head sentence is one year less than the standard sentence for murder but I consider the head sentence to be appropriate for the reasons given above.
Pursuant to section 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 26 years’ imprisonment with a non‑parole period of 18 years and 6 months.
Ancillary Orders
Finally, I grant the prosecution’s unopposed application for a disposal order.
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