DPP v Ivanovic
[2003] VSC 401
•2 October 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1457 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| THOMAS IVANOVIC |
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SENTENCE
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2003 | |
DATE OF SENTENCE: | 2 October 2003 | |
CASE MAY BE CITED AS: | DPP v Ivanovic | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 401 | |
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CRIMINAL LAW – Murder – Shooting on public street of innocent motorcyclist – Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr W. Morgan-Payler Q.C. | Office of Public Prosecutions |
| For the Accused | Mr R. Richter Q.C. and Mr C. Rozencwajg | Theo Magazis |
HIS HONOUR:
Life is not cheap; nor should it ever be.
Shortly before 6.00 p.m. on a pleasant summer's evening on Tuesday 8 January 2002, a decent law-abiding citizen who was simply seeking to gain his motorcycle rider's licence, left on a journey from Coburg, at the conclusion of which he was shot dead by you, Mr Ivanovic - shot twice with a deadly pistol, because of your ego. For no better reason than that: a wholly gratuitous killing on the public streets of Melbourne in broad daylight, because your ego was offended. On the public streets of Melbourne, you were carrying on your person what became a central exhibit in this trial, Exhibit D, a .32 Walther self-loading pistol. An illegal, unregistered, unlicensed, deadly pistol. You had it loaded. You had it ready to fire. You fired it into the body of another human being at close range, and three seconds later you fired it again, directly into his body. All he had done was to remonstrate with you about a driving incident, and point back up the road to where that incident had occurred. It is not known what was said by him or by you. But all the deceased did was remonstrate with you and then push you over. He then lurched towards you. It is not known whether that was because of what he saw you were about to do, or because his motorbike fell on him, or what. What was plain was that he was no threat whatsoever to your life or your safety or your person. There was a threat to your ego. That is why you killed him.
Your self-justifying and remorseless statements after you killed the deceased are eloquent of the circumstance that you need demonstrated to you the value of human life. You said to the postman who had been riding behind the deceased, Mr John Hair, "What are you looking at?" as the person you grievously shot lay in a foetal position on the ground. Shortly thereafter, you said to Mr Hair, "He had me by the throat, what did you expect me to do?" and Mr Hair, with the community and the law, replied "Not shoot him." You rang your friend Rocco Arico and said, "Come quickly" and when he came you said, "Just get me out of here." After driving you around the block, Mr Arico knew he would be well advised to get no further involved and he told you to get out of his car. You went and hid the weapon in a drain. You then walked back up the street to a decent community worker who was rendering aid to this man, and said to her "I shot him. I shot him. What the fuck did you want me to do? It was self defence." To Sergeant Fischmann, an off duty officer, you said, "Man, he grabbed me around the neck, so I shot him. What else could I do, man?" To your neighbour from opposite who asked "Tommy, what's happening?" you merely shrugged your shoulders. At least to your credit, you said to your sister and mother to call an ambulance. You also said to your mother, "Two men were waiting at the gate for me. One grabbed me by the throat and started to choke me. What could I do?" False; even to your own mother. According to Mr Arico you said "He threatened to kill me and then go inside and kill my family" - all false; an invention, which Mr Arico forgot in evidence in chief and had to be reminded of in cross-examination by your senior counsel. All of that was false about you or your family being threatened by the deceased, a man who had dared to remonstrate with you and push you over.
At trial, you sought to perpetrate another falsity: that you were in fear for extraneous reasons of the deceased, the L-plater on his 250 cc motor bike on that pleasant summer's evening in Cornwall Street, West Brunswick. You said nothing of this at the police station when asked, as was your plenary right not to be derogated from. You said nothing of this to the jury, as is your plenary right not to be derogated from. But you sought to perpetrate before the jury the falsity that you were in fear for extraneous reasons of the deceased. The genesis of this proposition was your relationship with a police officer, who Mr Morgan-Payler in the lonely responsibility of his office declined to call for the reason he stated at p.7 lines 7 to 8 of the transcript, and whom your most experienced counsel declined to call although the prosecution would have arranged his attendance at court. Your true situation remained throughout the trial hidden under a dark shroud. It remains there. Its attempted use here in this court - that is, its attempted connection with the scene at Cornwall Street at 6 p.m. on 8 January 2002 - was unsupported by evidence. It is of no avail to you. The video of your confident and assertive walk up to the deceased demonstrates no fear and demonstrates its opposite.
The person who you murdered was 38 years of age. He had done much good in his life and much good was before him. I have studied the victim impact statements carefully in this matter. They are moving and most impressive documents. First, that of both his parents; of his elder brother; of his sister-in-law; and of his close friend. The deceased was a compassionate, good person with his own inner strength. A man who was never violent, a lover of reading and of music. The three generations of this good man's family grievously miss him.
In your favour, Mr Ivanovic, is that you are relatively young. You were born on 14 April 1975 and are now 28 years of age. Next, this was not a crime of premeditation. Next, you have no prior convictions for violence. You have 14 prior convictions for driving offences on six occasions from February 1995 to May 2001. Next, you are of substantially lower than average intelligence. But you knew precisely what you were doing that Tuesday afternoon and evening; you knew what you were carrying on your person; you knew its deadly potential; you had it there; you were prepared to use it; and you used it twice.
In imposing sentence upon you for this wholly gratuitous killing, of the principles of sentencing, punishment is important, because this killing was so cruel and gratuitous. Special deterrence is important, because you need demonstrated to you, as your statements clearly show you do, that human life is not cheap. General deterrence is especially important, because others need to be deterred from wreaking cruel violence on persons on our public streets for no cause. Reformation is always important, and especially so in your case because of your relative youth and your lack of prior violent convictions. But you had a pistol, a deadly illegal pistol, you were prepared to use it, three seconds later you were prepared to use it again, and your later statements and conduct were eloquent of what you considered was the value of human life.
You have served 633 days in pre-sentence detention in relation to proceedings for this offence. Pursuant to s.18(4) Sentencing Act 1991 I declare that period of 633 days as already served under the sentence I impose, and I so certify.
As I said at the outset, Mr Ivanovic, life is not cheap, nor should it ever be.
For the murder of Mr Ivan Conabere I sentence you to 20 years' imprisonment. I direct that you serve a minimum term of imprisonment of 15 years before eligibility for parole.
Remove the prisoner.
Sine die.
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