Director of Public Prosecutions v Strucelj
[2020] VSC 140
•8 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT STRUCELJ |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Shepparton (trial), Melbourne (plea and sentence) |
DATE OF HEARING: | 29-30 April, 1-3, 6-9, 13-15 May, 23 August 2019, 1 November 2019 |
DATE OF SENTENCE: | 8 May 2020 |
CASE MAY BE CITED AS: | DPP v Strucelj |
MEDIUM NEUTRAL CITATION: | [2020] VSC 140 |
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CRIMINAL LAW – Sentence – Murder – Stabbing with knife – Offender went to neighbours’ remote property in the middle of the night, angered by their noise – Verbally aggressive towards occupants while brandishing knife found on the property – Spontaneously inflicted single stab wound to victim’s neck – Self-defence rejected by jury – Mixed prospects of rehabilitation – No remorse – Sentenced to a term of imprisonment of 22 years with a non-parole period of 18 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Mahady with Ms C Pezzimenti | Solicitor for Public Prosecutions |
| For Mr Strucelj | Mr C Morgan | Kerry Clancy Solicitors |
HER HONOUR:
Robert Strucelj, you have been found guilty by a jury of the murder of Peter James Doyle. Mr Doyle died in the early hours of Monday, 8 January 2018, at the home of his friends, whom I will refer to as the Wilsons, in order to protect the identity of their children.
You had never met Mr Doyle before that night. You had only had one previous interaction with the Wilsons, when you were looking for your dog, a few days earlier.
The Wilsons were living with their children on a rural property at the end of Williams Lane, which ran off Williams Road, Strathmerton. You were living with your father at a property on Williams Road, about one kilometre away from the Wilsons.
Your friend, Viorel Buga, lived next door to the Wilsons, in the property on the corner of Williams Road and Williams Lane. Mr Buga had complained to you on a couple of occasions that the Wilsons had been making noise on Williams Lane.
On the evening of 7 January 2018, you had been at home doing chores. You had been drinking Jack Daniels since the early afternoon. You went to bed around midnight.
A number of people had been socialising at the Wilson house that afternoon and evening, including Mr and Ms Wilson, their friend Shaun McAllister, and six children. Mr Doyle joined the gathering around 5.30pm, and played pool, ate dinner and drank beer with the other adults.
Later that evening, the male adults played poker in the pool room. Ms Wilson went to bed around 10.00pm, leaving the children still playing.
It had been a hot day, and it was still a warm evening. So, around 1:00am, Mr Doyle, Mr Wilson and Mr McAllister took five of the children to a dam on a nearby property on Williams Lane. The dam was a short distance from both the Wilson and Buga properties. The dam was further away from your property than theirs.
Mr Wilson drove a car to the dam, and angled the car across Williams Lane, so that the headlights illuminated the dam.
The adults supervised the children, while the children squealed and yelled as they played and swam in the dam.
Given the dam’s close proximity to Mr Buga’s house, he could hear people screaming “jump, jump, jump” and “whoa”, as the children played in the dam. This went on for about 10 or 15 minutes. Mr Buga opened his door to see what was going on; he saw light shining through the paddock, away from his house and towards your place.
You woke up at about 1:15am and went outside to use the bathroom. While doing that, you heard screams coming from the direction of Mr Buga’s house. In your evidence, you said that you heard high-pitched, piercing female screams that sounded ‘bad’, like the screams of someone in need of help. You said that it didn’t sound like the screams of someone jumping into a dam. But you were the only person who said the screams sounded like someone in trouble. Mr Buga, and all the witnesses who had been present at the dam, described them as nothing more than the sounds of children playing loudly.
You telephoned Mr Buga to find out if he was alright, as the noise was coming from the direction of his property. He said he was alright. He told you the new neighbours were jumping into a dam close to his house, and he couldn’t sleep. Even if you had been initially confused about the noises, that call should have reassured you that nobody was calling for help.
You said the screaming caused you to throw on some thongs, jump on your mountain bike, and ride down Williams Road to find out what was going on.
Around the same time, the group at the dam were starting to head back to the Wilson property, which was about 500 metres from the dam. Mr Doyle, Mr McAllister and some of the children walked back, while others returned by car. The car was travelling very slowly, as some of the children were being allowed to ride on the outside of the car.
You cycled down Williams Road, to investigate the source of the noise. As you came to the corner with Williams Lane, you saw the taillights of a car heading away from the dam and towards the Wilson house. You decided to leave your bike behind and pursue the car on foot. You offered no rational explanation for that odd decision.
Despite the low speed of the car, you never caught up with it. You gave evidence that you had to stop multiple times while following the car, because you were exhausted. However, throughout the time that you were following the car, there was no more screaming, and you could easily have turned around and returned home.
Instead, you continued on foot to the Wilson property, where you saw a light on in the carport. You walked onto their property, past a ute which was parked in the driveway, and continued on towards a boat at the edge of the carport.
At that point, you heard some male voices talking and laughing, but no screaming. You said that you did not expect to hear male voices, as you thought that only Mr Wilson and some females lived at the Wilson property.
In your evidence, you insisted that you could not have walked away or turned back at this point, because you were exhausted. That simply doesn’t make sense. It would have been easy for you to turn around and slowly walk or cycle home, resting on the way back as much as you wanted. It was dark, and the others were unaware of your presence at this stage, so wouldn’t have stopped you leaving. Instead, you chose to go on and confront the people on the property about the noise.
As you approached the carport, you saw two men, Mr Wilson and Mr McAllister, and a child (a 12 year old girl, whom I will call Susan Wilson). Susan alerted Mr McAllister and her father to your presence in the carport. At that time, Mr McAllister was right next to Susan, and Mr Wilson was near the door into the house. I accept that you did not see Mr Doyle at that time, as he was seated behind and obscured by the boat.
As you entered the carport, you saw a knife lying about on the front of the boat and picked it up. You said that you picked up the knife for your own safety, in case “it turned nasty on me”. But the male voices were simply laughing and talking, giving you no reason to think that anyone was going to harm you. I accept that, when you picked up the knife, you weren’t intending to use it to cause really serious injury or death. However, you were clearly intending that there was going to be some sort of confrontation between you and the men in the carport, and you picked up the knife in anticipation of the others reacting badly to your presence or your behaviour.
You entered the carport with the knife held in such a way that everyone could see you were armed. You yelled ‘What the fuck is going on?’ and ‘What’s going on with the screaming?’ You didn’t ask whether anyone was hurt or needed help. On the contrary, you were clearly angry about all the noise you had heard. You behaved aggressively from the moment you entered the carport.
That said, I do not accept Mr Wilson’s evidence that you ran into the carport and immediately stabbed Mr Doyle in the neck. Nor do I accept Mr Wilson’s claim that he did not become involved in any verbal altercation with you. It is clear that within seconds of you arriving in the carport, you and Mr Wilson were swearing and verbally abusing each other in an aggressive manner, including arguing about the fact that you were holding a knife. Mr McAllister was concerned enough by what he was seeing and hearing to take Susan inside; neither of them witnessed you later stabbing Mr Doyle.
There was a dispute between you and Mr Wilson as to whether Mr Wilson was present when you stabbed Mr Doyle. Mr Wilson asserted that he was present at the time, and only went inside to get his baseball bat afterwards. On the other hand, you asserted that Mr Wilson was inside getting a bat when you stabbed Mr Doyle. You and Mr Wilson were equally unbelievable as witnesses, and there is no basis for preferring either of your accounts.
But even if I accepted your account, it is unsurprising that the jury rejected your claim to have stabbed Mr Doyle in self-defence. On your account, after Mr Wilson went inside to get his bat, Mr Doyle stood up and said to you “I’d put that knife down if I were you”. Although you told him several times that you would put it down, you didn’t do so. He then said to you, quite calmly, “What do you think’s going to happen now.” He then threw an uppercut punch at you. You ducked, and the punch just grazed your chest. You reacted in a split second, and threw what you described as “a punch” towards Mr Doyle’s face, stabbing him in the neck. You steadfastly (and totally implausibly) refused to admit in cross-examination that you had stabbed him, even though you were well aware that you were holding a knife in the relevant hand at the time. You were also well aware that Mr Doyle was unarmed.
The knife blade was 20 centimetres long, and caused an eight centimetre deep wound in Mr Doyle’s neck. It severed the carotid artery, incised the jugular vein and the larynx, and pierced the oesophagus. I reject your assertion that you didn’t realise that you had stabbed Mr Doyle – apart from the fact that you knew that you had hit him with a knife in your hand, the injury would have bled profusely and immediately. You claimed, quite implausibly, that even after you had “punched” him, Mr Doyle came at you with a karate kick, before falling over (presumably you said that to try to bolster your claim of having acted in self-defence).
After stabbing Mr Doyle, you ran away from the carport, taking the knife with you, into one of Mr Buga’s paddocks. From there, you called Mr Buga and told him to ring the police, without any other explanation. Even though you claimed that you were very worried for your own safety, you did not ring the police yourself, or ask Mr Buga for shelter or protection.
Instead, you ran back to your bicycle and rode home. When you got home, you jumped into the outdoor spa, wearing the shorts that you had worn when you stabbed Mr Doyle. When you got out of the spa, you took your shorts off, hung them on the line to dry, and started drinking.
In the meantime, the Wilsons called the police for help, and desperately tried to stop the bleeding. However, Mr Doyle died before the police arrived, from blood loss caused by the stab wound.
At trial, you said that you did not intend to cause Mr Doyle really serious injury or death, and that you acted in self-defence. In finding you guilty of murder, the jury clearly rejected both of those claims. The jury verdict does not indicate which aspect of self-defence the prosecution had disproved beyond reasonable doubt.
Although the prosecution case was put on the basis that you either intended to kill or cause really serious injury to Mr Doyle, it is not clear from the verdict on which of those bases the jury convicted you. In some cases, it may be important for the sentencing judge to make a specific finding as to intent, but it was not suggested by either counsel that this was such a case. Rather, your moral culpability is to be determined by the nature of the killing, including your conduct, rather than the particular intent with which the conduct was carried out.
This case falls within the middle range of seriousness for murder. On the one hand, you only inflicted a single stab wound, without pre-meditation, using a weapon which you had picked up spontaneously at the scene. However, the aggressive confrontation which occurred that night was entirely of your making. You went to an isolated rural property, in the middle of the night, incensed that the occupants had been making noise some time earlier. Shortly after entering the property, and before anyone had seen you, you armed yourself. You then aggressively confronted a group of strangers who were simply laughing and chatting amongst themselves. You may not have known that there were other children in the house, but you were well aware that Susan was present as you brandished the knife and yelled abuse. It is hardly surprising that the people at the house did not respond well to your aggressive, armed intrusion. You deliberately stabbed an unarmed man in the neck – a very vulnerable part of the body. Even if Mr Doyle had said and done the things that you claim, that in no way justifies your actions that night.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others. Victim impact statements were filed by Mr Doyle’s family members, friends, and some others who were involved with these events.
Peter Doyle was born in Melbourne in 1985. He was 33 when he died. After leaving school, Mr Doyle began working in panel-beating.
In 2012, Mr Doyle’s grandfather died. Mr Doyle relocated to the Strathmerton area, to live with and look after his widowed grandmother, with whom he was very close. He helped maintain her property, took her shopping, and assisted her with other household chores.
Mr Doyle loved living in the country, near a river, where he gained great pleasure from fishing and swimming. A respectful, loyal and empathetic person, he was actively involved in volunteering to help others in his local community.
Mr Doyle’s death has devastated those who loved him. Some of them are having trouble sleeping, and experience nightmares about what happened to him.
He and his mother had been estranged for about 14 months before his death; she feels guilty that there is no longer an opportunity to repair their relationship, and tell him that she loved him.
This incident has affected their sense of personal safety, especially at night, and for those who live in more isolated locations.
These events and their aftermath have also led to tensions and unpleasantness between the Wilsons and others, in what is a small regional community.
There is nothing this court can say or do that will bring back Mr Doyle, or heal the grief and pain caused by these events. The sentence I am going to impose is not a reflection of the worth or value of Mr Doyle’s life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.
I turn to consider your personal circumstances. You were born in January 1972 in Croatia, and are now 48 years old. You have two younger sisters, with whom you are very close, and you grew up in a loving and caring family.
Your family moved to Australia in 1977. You and your sisters went to primary school in Coolaroo, and you then attended Broadmeadows Technical School to year 10. You started working at Visy Board when you were 16, together with your father. You later began (but did not complete) a plumbing and gas fitting apprenticeship.
Your parents separated about 16 years ago, after which you and your father moved to the hobby farm where you were living, in a caravan, at the time of this offence.
You were last employed in about 2010 or 2011, when you worked at a cheese factory in Strathmerton for about 18 months. Apart from that brief period of employment, you have been receiving a disability support pension since 2003, due to mental health problems.
You started abusing alcohol when you were about 16 or 17, and it has had a significant negative effect on your life since then. However, you do not acknowledge that you are alcohol dependent. You have also regularly used cannabis since your late teens.
For a period of up to a year around 2002, you were a frequent user of methamphetamine, commonly known as ‘ice’. You relapsed into ice use for a short period in 2016.
You have had longstanding problems with gambling, which you acknowledge have caused you financial difficulties over the years.
During your 20s, you had a couple of long term relationships, both of which ended after you got engaged but before you got married.
You have a long history of prior convictions, beginning in December 1989, when you were 17. Many of them were for minor property, driving, or public disorder offences, which did not result in terms of imprisonment.
However, in April 1999, you were sentenced to three years’ imprisonment for a culpable driving charge. That conviction arose from a car crash in 1997, in which you killed your best friend whilst driving under the influence of alcohol and cannabis.
You clearly did not learn from that incident, as you repeatedly committed driving offences, including drink driving offences, after your release from prison. Alcohol abuse continued to feature in some of your other charges in later years. You have served two further sentences of imprisonment, since the culpable driving conviction.
Your first conviction for violence was in July 2013, when you were convicted of charges which included threats to inflict serious injury, and using a firearm under the influence of alcohol. Those charges, like the current one, arose out of a neighbourhood dispute.
For the purposes of sentencing, you were assessed by Jeffrey Cummins, a forensic psychologist. In his report, dated 5 August 2019, Mr Cummins referred to material he had seen in the files of the Goulburn Valley Area Mental Health Service. Those files referred to several inpatient psychiatric admissions in Melbourne and Goulburn Valley in 2012, 2013 and 2016. At the time of those admissions, you were variously diagnosed with paranoid schizophrenia, borderline personality disorder, organic mood disorder, and mental disturbance due to alcohol abuse. There were a number of references to your having poor compliance with taking medication, or accepting the need for mental health treatment.
You also told Mr Cummins of an earlier psychiatric ward admission around 2002 or 2003, which was not on the files seen by Mr Cummins.
As well as reviewing your files, Mr Cummins assessed you himself. Although he said that the symptoms you reported (such as suspicion and paranoia) were consistent with several different personality disorders, you did not display sufficient signs to justify a diagnosis of any disorder apart from alcohol use disorder and cannabis use disorder.
As far as the offending was concerned, Mr Cummins noted that there was nothing to suggest you were psychotic at the time. Rather, you might have been experiencing an elevated level of suspicion and paranoia due to alcohol and/or cannabis use.
Mr Cummins noted that you had been given Seroquel, a mood stabiliser and antipsychotic medication, whilst in custody, to calm you down since the jury verdict. He said your symptoms of anxiety and depression appeared to be reactive to the verdict, rather than being operative at the time of offending. He believes you may be at risk of developing a reactive adjustment disorder in response to the jury verdict. In so far as Mr Cummins opined that a term of imprisonment would “inevitably” have an adverse effect on your mental health, he put forward no basis for me to conclude that the effect would be permanent, or more severe than for other offenders who are sentenced to lengthy terms of imprisonment.
Mr Cummins raised the possibility that you may be suffering from an acquired brain injury, caused by the motor vehicle accident and/or alcohol abuse. He recommended that you be examined by a neuropsychologist, in order to see whether any of the Verdins principles might apply in your case due to an acquired brain injury.
The hearing of the plea was adjourned part-heard, to enable you to be assessed by a neuropsychologist, Martin Jackson. Mr Jackson was asked to assess your cognitive functioning, and to advise whether you had any condition that might have contributed to your decision to go and investigate the noise that night.
You told Mr Jackson that you believed your previous psychiatric admissions to be related to drug or alcohol induced psychoses, rather than underlying psychotic illness.
In contrast to Mr Cummins, after performing various tests, Mr Jackson reported that you did not present as being depressed or anxious. He also noted that you did not demonstrate any psychotic symptoms.
Mr Jackson administered a number of tests across a wide range of cognitive abilities. Although he noted your limited education, Mr Jackson assessed you as having an IQ in the average or high average range on most intellectual abilities. Your executive function skills were also in the average or high average range, and there was no evidence of any disorder of impulse control. The only areas in which you performed at below average level were areas which are irrelevant to this offending.
Mr Jackson concluded that it was clear that you did not have an acquired brain injury due to any cause, and were not demonstrating any cognitive impairment associated with a mood disorder.
When the plea came back before me for further hearing on 1 November 2019, your counsel requested another adjournment, in order to seek a further psychological assessment. As the prosecution did not oppose that course, I adjourned the further hearing of the plea until 29 January 2020. Shortly prior to that hearing date, the court was informed that you would not be relying upon any further reports.
There is a clear need for general deterrence and denunciation in a case such as this. Neighbourhood disputes should not be addressed by the sort of aggressive approach that you took here.
Although your prior convictions are for offences far less serious than this one, they are numerous and stretch over a long period of time. They do demonstrate a general disregard for the law, and a failure to address the substance abuse issues that have caused you problems throughout your life. Your prospects of rehabilitation are dependent on you addressing your substance abuse issues (which appear to also be connected with previous mental health problems).
You have shown no remorse for your actions. On the contrary, you don’t accept the jury’s verdict and continue to blame others, including Mr Doyle, for what happened that night. Your lack of remorse is also relevant when considering your prospects of rehabilitation.
You are poorly educated and have not worked for much of your adult life. However, you still enjoy the support (including financial support) of your two sisters and your parents, some of whom attended court for much of your trial. That will be of assistance to you when you are eventually released from custody.
Finally, before I pronounce sentence, I note that this offence was committed before the introduction of the standard sentencing regime.
Having had regard to all of these matters, for the murder of Peter James Doyle, I sentence you to imprisonment of 22 years. I fix a period of 18 years before you will become eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 851 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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