DPP v Rattya
[2007] VSC 6
•31 January 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1403 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PETER TIMOR RATTYA |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 - 16 November 2006, 25 January 2007 | |
DATE OF SENTENCE: | 31 January 2007 | |
CASE MAY BE CITED AS: | DPP v Rattya | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 6 | |
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Criminal law – Sentence – Murder – Intentional shooting of victim with bow and arrow at close range – Elaborate attempts to mislead police as to what occurred – Chronic schizophrenia – Some moderation of moral culpability and need for deterrence under Tsiaras principles – Acquired brain injury – Little remorse – Many prior convictions including for violence – Long history of drug and alcohol abuse – Poor prospects of rehabilitation – Sentenced to imprisonment of 21 years with non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Quin | Solicitor for Public Prosecutions |
| For the Accused | Mr S Cash | Balmer & Associates |
HER HONOUR:
Peter Timor Rattya you have been found guilty by a jury of the murder of Amer Alihromic. It is my duty to sentence you for that offence.
On 15 January 2005, you shot and killed an acquaintance, Amer Alihromic, with a bow and arrow, in the backyard of the boarding house where you were living. He was 26 years old at the time. He had lived at that boarding house for a short time in the previous year, before you moved in. You had bumped into him earlier that afternoon, on your way home, and had invited him to come over and listen to music with you, as he had done before.
By mid-afternoon, a small group of people, including residents and visitors, had congregated at the boarding house and were listening to very loud music; some were drinking alcohol and smoking marijuana. Late in the afternoon, you and Amer were the only ones left in the backyard. By that time, Matthew Lau, Codi Campbell and Glen Wills had gone into the house to watch television and another group had gone to the shops and then on to the casino.
You and Amer had a disagreement about religion. You said that he persistently made noises like a hyena “or a devil” and it began to spook you, to “spin you out”. You repeatedly asked him to stop making the noises, but he refused. You threatened to go inside to get your bow if he did not stop. He did not respond to your threat.
You went into the house, through the back door, to retrieve a bow and arrow from your bedroom wall, returning outside a few minutes later. When you came out, Amer was half lying on the ground, towards the rear of the yard, leaning back on his elbow. You approached him, coming within a distance of about 5 or 6 feet. According to witnesses who were looking out through the kitchen window, you aimed the bow directly at him and shot an arrow. Amer was pleading not to be shot. In returning a verdict of guilty of murder, it is clear that the jury rejected your evidence that you only pointed the arrow above his shoulder, intending to frighten him, and had shot him by accident after he kicked the end of the bow.
Amer Alihromic did not die instantly. After you shot him, he stood up and staggered towards the house, before collapsing on the ground near the back door, where he eventually died.
After you shot him, it must have been obvious that Amer was, at the very least, seriously injured and would require urgent medical attention. But instead of calling an ambulance, you went about a series of events which were intended to protect you. You went back into the house. By this time, the three people in the house were aware of Amer’s plight. You threw the bow at Matthew Lau and told him to return it to your bedroom. You went into the kitchen and got a knife and demanded that someone stab you in the leg with it, so that it would appear to the police that you had acted in self-defence. You would not allow an ambulance to be called until such time as you had been stabbed.
There is no doubt that those present were afraid of what you might do next. Whilst at first they refused to stab you, Matthew Lau eventually complied with your request, fearing you may harm Codi Campbell, his pregnant partner. You told him where to stab you and how far to put the knife in. After being stabbed in the kitchen, you directed Matthew to take the knife outside and place it in Amer’s right hand, to further corroborate the story that you had acted in self-defence. At the time, Amer was lying on his back with his right arm outstretched. Blood stains show that you went and stood over Amer’s body at some stage whilst he was lying on the ground.
It was only after you had tampered with the crime scene in this way, that you allowed an ambulance to be called to the boarding house. You told Matthew what to say. The emergency operator was only told that one person had been stabbed; no mention was made of anybody having been shot with a bow and arrow. When the ambulance arrived only seven minutes later, Amer was already dead.
The arrow had entered Amer’s body through the solar plexus, piercing the left lobe of his liver. It continued to travel upwards through his body into his chest, piercing the lower lobe of his right lung and causing it to collapse. The arrow penetrated his back near his right shoulder blade. The arrow caused internal haemorrhaging, the cause of his death being a penetrating chest wound caused by the arrow. Toxicological tests showed that there were no drugs or alcohol in the victim’s body at the time of his death.
When interviewed by the police, you persisted with the lie that you had acted in self-defence. You only abandoned that particular lie at trial. Instead, you put forward a new lie for the first time at trial, the lie of an accidental shooting. Your account of Amer kicking at the bow and thereby dislodging the arrow is contrary to other evidence and was plainly rejected by the jury.
Victim impact statements were provided to the court by Amer Alihromic’s mother, Fetaneta Alihromic, his only sister, Hajreta Custovic, and his brother-in-law, Salko Custovic. They tell a tragic story of how the war in the former Yugoslavia affected their family. On one terrible day in May 1992, Mrs Alihromic’s husband was shot dead in front of her and the two children. Twenty-two other close relatives were also killed that day. Amer Alihromic, then only a teenager, was separated from his family for some years. Mrs Alihromic and her young daughter were imprisoned in Serbia and subjected to terrible atrocities, before they finally came to Australia as refugees in late 1995. They were delighted to be finally reunited with Amer, when he arrived in Australia in 1999.
Against such an horrific background, Amer’s death has, quite understandably, had a devastating effect on his family. They had moved to Australia to put senseless killing and violence behind them and to start new lives. No sentence of this court will ever bring back their son, their brother or the uncle of their children.
You are now 42 years old. Your parents split up when you were about 6 years old and you spent a number of years of your childhood moving between life in Western Australia, with your mother and her new partner, and Victoria, with your father.
You left school after second year high school. You variously worked as a landscape gardener, meat worker and builder’s labourer until about 10 years ago, when you sustained serious head injuries requiring neurosurgical intervention, after being assaulted. Since then, you have not worked and have experienced memory problems, blackouts, migraines and difficulty in organising yourself.
You have a 21 year old son from a long-term relationship which ended about 6 years ago. You are distressed by the fact that your son has not wanted anything to do with you for some years. You have an older sister and two older brothers, but it seems you do not have regular contact with them. Your 72 year old mother is still alive, living at Bacchus Marsh and supportive of you.
The picture which generally emerges of you from the various expert reports filed at your plea is of an unemployed, socially-isolated person, living in a series of rented flats or boarding houses, with no hobbies or interests and suffering from various mental health problems and drug and alcohol addiction.
You have had longstanding problems with alcohol and drug abuse since you were about 14 or 15. About a dozen cans of full strength beer per day would be your typical alcohol consumption. When deprived of alcohol, you are prone to withdrawal sweating and shaking. When intoxicated, you experience regular blackouts. You claim to have drunk no alcohol for about a year before this offence, and there is no evidence that it played any role in your offending on this occasion. I note that there have been relapses in your previous attempts to give up alcohol, and believe you will require further counselling to address addiction issues.
You also started using marijuana around 14. Apparently your usage increased seriously once you gave up drinking, to the stage where you were smoking around 2 grams daily. Although you told Dr Lester Walton (a psychiatrist who has been seeing you on a regular basis in custody) that you were “stoned” at the time of offending, there is evidence that you had only smoked 1 or 2 cones that whole day, not a large amount for such a heavy user. In any event, Dr Walton doubts the cannabis would have had any direct affect towards promoting aggressiveness, although it may have indirectly aggravated your existing mental illness.
You started using amphetamines in your 20s. Although you told Dr Walton that you had snorted an unknown quantity of speed on the evening before the killing, you gave no such evidence in court. Even if true, Dr Walton believes it most unlikely that it would have had any residual effect at the time of the incident.
Although you do not regard yourself as an addict, Dr Walton believes you should properly be described as a substance-dependent person.
Neuropsychological testing conducted by the Acquired Brain Injury Assessment Unit in January 2004 showed your intelligence to be in the low average range, with quite marked impairment in your memory, concentration and attention, your planning and organizational capacities and your verbal problem-solving skills. These results are supported by the views of Dr Carol Newlands, psychiatrist at the Victorian Institute of Forensic Mental Health. They are all consistent with an acquired brain injury.
Dr Walton reports that you also show evidence of some cognitive defect which is independent of your acquired brain injury. In particular, he reports that you are disoriented in time and have underdeveloped literacy and numeracy skills. Whilst you register new information, your recall is rather haphazard and you exhibit some evidence of confabulation.
You also have a history of psychiatric problems, the precise details of which are rather vague. It seems that you were first admitted to a psychiatric hospital in Brisbane some years ago. There have been several admissions to the Werribee Mercy Psychiatric Unit, most recently an involuntary admission in 2004. You have suffered from and been medicated for depression. When and by whom you were first diagnosed with chronic paranoid schizophrenia, or first put on anti-psychotic medication, is not before the court. It seems that you may at some stage also have been diagnosed with a personality disorder. You have received ECT in the past.
At the time of offending, you had been prescribed the antipsychotic medication, Zyprexa. You told Dr Walton that you were taking your medication at the time. But there is other evidence that you have not always been compliant with your medication regime, particularly with taking Zyprexa.
Since being taken into custody, you have spent several periods in the prison psychiatric unit. There have been recurring periods of paranoia and auditory hallucinations necessitating ongoing adjustment of your medication.
Codi Campbell said that at one stage during the afternoon, she saw you in what she described as “a bit of a trance”, and she had to slap you a few times to get your attention. Whether such behaviour was a result of drugs, your acquired brain injury or mental illness is not clear. However, she was not describing such conduct immediately prior to or at the time of the shooting.
Dr Walton’s opinion was that, notwithstanding your long-standing mental illness, you did not have a defence of mental impairment open to you. Although the victim’s vocalisations may have been distressing to you, you do not seem to have been suffering from any delusions or hallucinating at the time. Also, the manner in which you went about trying to set up a self-defence scenario immediately after the shooting suggests to him a capacity for rational thought and an awareness of the wrongfulness of your actions.
However, Dr Walton believes that your mental illness may have contributed to your aggression, as it is well recognised that chronic schizophrenia erodes a person’s capacity to consistently exercise proper social judgment. He believes you were probably noise-intolerant and overreacted in an effort to achieve silence.
It is well-established that serious psychiatric illness not amounting to mental impairment, or significant intellectual disability, may be relevant to sentencing in a number of ways. In this case, it was argued that your psychiatric condition and acquired brain injury would reduce both your moral culpability and the appropriateness of seeking specific or general deterrence as an appropriate purpose of punishment.
I accept that there should be some such amelioration because of your chronic schizophrenia, having regard to the ways in which Dr Walton says it may have impacted on your offending. However, I would give little weight to your acquired brain injury in this context. That is because although the symptoms of that injury seem to impact on matters such as memory or organisational skills (and therefore to rehabilitation issues), they seem to have little relevance to your offending.
It remains the fact that the taking of a human life is a most serious offence; the maximum penalty for murder is life imprisonment. The need to uphold the sanctity of human life is an important consideration in sentencing for murder.
There appears to be no apparent motive for your murdering Amer, beyond being agitated by your interaction with him in the backyard. I accept that you committed the offence with only minimal forethought and in a mental state in which your capacity to exercise proper social judgment was compromised. However, there are several aggravating factors to which I must also have regard.
Given your long-standing interest in archery, you undoubtedly understood that you were using a dangerous weapon. You specifically went to your room for the purpose of fetching the bow and arrow, after warning Amer that you would do so if he did not shut up. You aimed and shot at him from very close range, when he was lying down with no opportunity of escaping.
I am unable to conclude precisely how much time passed between the shooting and the 000 call, but there is no doubt you deliberately delayed calling an ambulance until after you had orchestrated your self-defence scenario. Despite telling the jury that you were “praying that he was still alive, that he would be saved” and that you were concerned only about Amer, that simply was not the case. You were focused solely on fabricating physical evidence to protect yourself. The emergency operator was only told that you had been injured, not a word was said about poor Amer. Whilst there is no evidence that the delay in calling the ambulance contributed to Amer’s death, it evidences your complete disregard for Amer’s welfare.
Although Fr Joe Caddy from the Catholic Prison Ministry says that you have expressed to him “deep and heartfelt remorse and regret” over your part in what happened, I have seen no real evidence of any remorse. You did nothing to assist the injured man and put forward and persisted with a variety of lies intended to minimise your responsibility. Upon being found guilty of murder, you apologised in open Court to Amer’s mother. But I found your apology somewhat insincere and self-serving. Your lies, and the fact that you continue to attribute the blame for Amer’s death to the ambulance service, undermine any of the perfunctory expressions of remorse you have made, either in Court or in the record of interview. I am not persuaded of any genuine remorse for what happened. That said, I also note Dr Walton’s comment that schizophrenia is an illness which distorts emotional expression, thereby making difficult the evaluation of any expression of remorse.
You have a long history of prior convictions. Between December 1982 and February 2004, you were convicted of 84 offences at 29 separate court appearances. Details of the circumstances of your past offending have not been provided. Whilst some convictions are for property or drug and alcohol offences, many of them involve actual or threatened violence towards others. You have been in and out of prison with some regularity, albeit not for particularly lengthy periods, since the early 1990s. Although you have a history of violence, this particular crime is by far the most serious one you have committed.
The number and type of prior convictions suggests that previous sentences have had little rehabilitative or deterrent effect. There also seems to be an obvious interrelationship between your past offending and your protracted history of alcohol and drug abuse. To what extent your mental state may also have contributed to past offending is not a matter about which there is any evidence before me.
I have been presented with a handful of certificates showing your participation, for one week in February 2006, in some drug and relapse programs run by Uniting Care. Whilst that may be a good start, it is abundantly clear that you require a lot more than that to address your ongoing problems.
According to Dr Walton, your require fairly close ongoing psychiatric supervision and there is some risk that you may need to remain within the prison psychiatric unit indefinitely. He believes that your prospects for overall rehabilitation are compromised by both the chronic nature of your mental illness and also (to a lesser degree) your acquired brain injury.
Given all of the matters I have discussed, I certainly remain concerned about the ongoing risks that you present to the community and feel pessimistic about your prospects for rehabilitation.
Notwithstanding some amelioration due to your mental condition, there still remains some need to deter others from employing dangerous weapons in the resolution of arguments. Amer’s death was a senseless act and a tragic waste of human life. The disregard you exhibited for the sanctity of Amer’s life must be denounced and punished.
I have had regard to the range of sentences handed down in this court over recent years for the crime of murder, bearing in mind that they can only provide general guidance and that each case must be assessed having regard to the individual circumstances of the offence and the offender.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 21 years. I fix a period of 16 years as the period you must serve before becoming eligible for parole.
I declare that the period to be reckoned as already served under the sentence is 643 days, inclusive of today’s date, and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
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