Jacovic v The Queen
[2002] WASCA 149
•7 JUNE 2002
JACOVIC -v- THE QUEEN [2002] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 149 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:143/2001 | 20 MAY 2002 | |
| Coram: | MURRAY J PARKER J MILLER J | 7/06/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DRAGAN JACOVIC THE QUEEN |
Catchwords: | Criminal law Sentencing Murder Sentence of life imprisonment with minimum term of 14 years Whether minimum term excessive Relevance of assisting trial process Claim of remorse Turns on own facts |
Legislation: | Nil |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 Nguyen v The Queen [2001] WASCA 119 R v Sherratt (2000) 112 A Crim R 177 Veen v The Queen [No 2] (1988) 164 CLR 465 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JACOVIC -v- THE QUEEN [2002] WASCA 149 CORAM : MURRAY J
- PARKER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Murder - Sentence of life imprisonment with minimum term of 14 years - Whether minimum term excessive - Relevance of assisting trial process - Claim of remorse - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
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Category: B
Representation:
Counsel:
Applicant : Ms K J Farley
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Nguyen v The Queen [2001] WASCA 119
R v Sherratt (2000) 112 A Crim R 177
Veen v The Queen [No 2] (1988) 164 CLR 465
Case(s) also cited:
Nil
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1 MURRAY J: I have had the advantage of reading in draft the reasons for decision of Miller J, with which I entirely agree. I too consider that it cannot be said in this case that the exercise of discretion by the sentencing Judge in fixing the non-parole period miscarried in any way. Leave to appeal should be refused.
2 PARKER J: Substantially for the reasons given by Miller J, whose decision I have had the advantage of reading in draft, I agree that leave to appeal against sentence should be refused.
3 MILLER J: The applicant was indicted in this Court on 1 November 2000 on or about a charge that on or about 18 December 1999 at Parmelia he wilfully murdered Mirsada Jacovic. He was tried before a Judge and jury on 10 September 2001. He pleaded not guilty, but advised the Court through counsel that he was prepared to plead guilty to the charge of manslaughter. This plea was not accepted by the Crown.
4 After a two-day trial the appellant was convicted on 11 September of murder. He was sentenced by the learned trial Judge on 28 September 2001. The sentence imposed was one of life imprisonment with a minimum term of 14 years before eligibility for parole. The sentence was backdated to 19 December 1999.
5 The applicant seeks leave to appeal against the minimum term imposed. The grounds of appeal as amended at the hearing before this Court are as follows:
"The non-parole period of 14 years imposed upon the applicant was manifestly excessive in that:
(1) The offence was not one of the very worst of its kind;
(2) The Learned Trial Judge erred in that: the non-parole period failed to take into account or to adequately take into account the applicant's remorse;
(3) The Learned Trial Judge erred in failing to take any or any sufficient account of the evidence indicating a certain degree of provocation;
(4) The Learned Trial Judge erred in that the non-parole period failed to take into account or to adequately take into account the hardship that would be caused to the
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- Applicant's children by virtue of his receiving the maximum non-parole period."
6 Before dealing with the grounds of appeal it is convenient to summarise the facts. They were that in the early hours of Sunday morning, 19 December 1999 the applicant and his wife were embroiled in an argument at their home. According to an account given to interviewing police, the applicant said that his wife told him during the course of their argument that she intended to leave him for a younger man. At about 2am the applicant went outside the house and took a large sledgehammer from the garage. He re-entered the house with it. His wife saw it and ran to the bedroom. The applicant pursued her and struck her first on the legs with the sledgehammer, breaking both of them. She fell to the floor and the applicant proceeded to beat her with the sledgehammer, hitting her principally on her head. The injuries inflicted caused her death.
7 There was evidence at the trial of the applicant from Dr Clive Cooke, a forensic pathologist. He testified that there were at least nine laceration type injuries to the head, three on the left side of the scalp and six to the face. There were injuries to the point of the chin, underneath the point of the chin, on top of the point of the chin, the centre of the lower lip, the centre of the upper lip, the bridge of the nose and to the right side of the forehead. The latter injury was a very severe compound injury which exposed brain tissue and fractured skull bone. The face of the deceased had a depressed appearance and was badly disfigured. There was extensive fracturing of the vault, base and left side of the skull and facial bones and various other injuries of severity. These included the fractured legs, together with several fractured ribs, a partial collapse of the right lung and tearing of the liver with associated internal bleeding.
8 After the applicant had assaulted his wife he took steps to conceal what he had done. He removed the body from the house and took it in his vehicle, dumping it by the roadside. His wife may then have still been alive. The applicant returned to the house to remove incriminating blood stains and he disposed of the sledgehammer. He then went to the Fremantle police station and reported that his wife was missing. He participated in a police interview in which he falsely informed the police that he and his wife had argued, he had hit her and she had run away. In a later police interview the applicant confessed to having frequently used violence towards his wife during the course of their marriage.
9 When the learned trial Judge came to sentence the applicant he referred to the facts and then to matters personal to the applicant. He
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- pointed out that he was 46 years of age and had come to Australia from Yugoslavia in July 1971. He had since returned to Yugoslavia on several occasions. He and his wife had four children, ranging in age from 4 to 10 years. They were in the house at the time of the assault. When the applicant was sentenced the children were living with the applicant's sister. His Honour made reference to injuries suffered by the applicant in a landmine explosion in 1992. These injuries had precluded the applicant from being able to work. Reference was also made by his Honour to a number of convictions of the applicant in Petty Sessions, but his Honour pointed out that none of these convictions were of any significance in relation to the sentence to be imposed for the crime of murder.
10 Having reviewed matters personal to the applicant and the facts of the case, his Honour then concluded:
"In my opinion the circumstances of that crime were such as to constitute an offence at the very top of the range of such offences. To commence your attack by first breaking both of your victim's legs, placing her defencelessly at your mercy, was an act of barbaric cruelty in itself. Then to proceed to crush her chest and strike her face and head in the way you did was an act of appalling and almost incomprehensible violence. The jury has quite rightly, in my opinion, rejected your claim to have been provoked into the assault upon this young woman which resulted in her death.
I am required by section 90 of the Sentencing Act 1995 to impose upon you a sentence of life imprisonment for murder and also to set a minimum period of not less than 7 years nor more than 14 years that you must serve before being eligible for release on parole. Stand up please, Mr Jacovic.
I sentence you to life imprisonment and for the reasons which I have indicated I set a period of 14 years as the minimum period that you must serve before you are eligible to be released on parole and the sentence is to be deemed to take effect on and from 19 December 1999."
11 The applicant contends that his Honour was in error in concluding that the offence was at the very top of the range of offences of murder. It is said that although the "physicality" of the murder was at the high end of the scale of seriousness for offences of this type, there were other relevant
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- issues which should have reduced the non-parole period from the maximum available.
12 In my view the learned trial Judge was absolutely correct in concluding that the crime was at the very top of the range of murders. There may have been a worse case, but that does not mean that a lesser penalty should have been imposed upon the applicant. In Veen v The Queen [No 2] (1988) 164 CLR 465 at 478, Mason CJ, Brennan, Dawson and Toohey JJ summed up this principle in the following way:
"The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case, ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
13 In any event, the sentence to be imposed upon the applicant was a mandatory sentence of life imprisonment. It is doubtful that the question of where the offence stood in the order of seriousness affected the order for eligibility for parole. In R v Sherratt (2000) 112 A Crim R 177 Murray J (with whom Pidgeon J agreed) said (at [44] - [45]):
"44 … to frame the ground of appeal, as in this case, so as to assert that the decision of the learned sentencing judge in respect of the minimum period fixed 'was manifestly excessive in all the circumstances' is to argue for a proposition which is incorrect as a matter of law. When imposing a life sentence for the crime of murder the minimum period of 14 years is not to be taken as being reserved for the worst conceivable case of murder, short of the offence of wilful murder, a submission implicit in the argument presented by counsel who suggested that Parker J must have placed too little weight upon the various matters having a mitigatory effect if they resulted in the reduction of the minimum period merely from 14 years to 12 years.
45 That is not to say that the matters particularised in ground 1.1 did not require consideration in fixing the
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- minimum period, but in my respectful opinion, the error in the approach exemplified by the ground is made manifest when one comes to ground 1.2. The relevance of an intellectual deficit in the offender to the sentencing process generally was recently discussed by this Court in Halliday (unreported, Court of Criminal Appeal, WA, No 210 of 1997, 3 April 1998) and again in Dalgety [2000] WASCA 10. It was held that the offender's intellectual retardation did not eliminate the aim of general deterrence as one to which a sentence should properly give effect, but that factor would, generally speaking, still operate 'sensibly moderated'. Those cases were relied upon by the applicant, but in my respectful opinion to do so was to treat the process of fixing the minimum period rather as if it was the imposition of an effective finite term of imprisonment and, as has been seen, that is not the basis upon which the minimum period is to be fixed."
14 Counsel for the applicant argued that the learned trial Judge failed to adequately take into account the remorse of the applicant. It was put that by pleading guilty to manslaughter and by cooperating with investigating police, there was evidence of remorse which should properly have been taken into account. However, I am unable to accept this submission. The applicant did not plead guilty to the crime with which he was charged. He pleaded not guilty and after trial was convicted and sentenced in respect of the lesser crime of murder. While he offered a plea of guilty to manslaughter, it was obvious that he had unlawfully killed the deceased and a plea of guilty to manslaughter was of no benefit to the Crown, save that there may have been some advantages in presentation of the Crown case in the sense that some matters need not be proven. In many homicide trials, however, counsel for the accused person will concede or admit matters of fact which shorten the trial.
15 Far from being remorseful, the applicant contended that he had acted under circumstances of provocation. The extent to which the applicant cooperated with investigating police is doubtful. He first gave an untruthful account of what had occurred and only on second interview did he confess to having killed the deceased. This was not cooperation in the general sense, but admissions against interest which were then properly used against the applicant at his trial.
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16 The contention that the learned trial Judge failed to take any or any sufficient account of evidence indicating a "certain degree of provocation" must fail. The jury was satisfied beyond reasonable doubt that the applicant had not acted under circumstances of provocation in law. There is no scope for suggesting that there was, nevertheless, a "certain degree of provocation". The learned trial Judge properly pointed out that the jury had rejected that contention. If, despite the jury's rejection of provocation, the applicant's assertion to the police that his wife told him she intended to leave him for a younger man is accepted, it would well explain why he came to assault her, but it hardly explains the brutality and extent of the assault and his subsequent dumping of her body, nor does it mitigate the gravity of his conduct.
17 The final ground of appeal contends that the learned trial Judge failed to take into account the hardship that would be caused to the applicant's children by virtue of his receiving the maximum non-parole period. At the hearing of the appeal a letter from one of the applicant's daughters was received in evidence by the Court. In that letter his daughter (now aged approximately 10 years) expressed the wish that her father be released from prison. Of course he cannot be released from prison, but the question is whether the interests of his children ought to have been taken into account by the learned trial Judge in fixing the non-parole period. Those children were four in number. Three are girls and one a boy. At the time of preparation of an antecedent report in August 2000, their ages ranged between 4 and 10 years.
18 The applicant sought to rely upon the decision in Nguyen v The Queen [2001] WASCA 119 where this Court pointed out that in exceptional circumstances a decision might be made not to impose an immediate sentence of imprisonment upon an offender where imprisonment would result in a child being deprived of parental care. However, that case is of no application to the circumstances of this application. Here, the offender had to be sentenced to mandatory life imprisonment. The only issue was the minimum term which he was to serve before eligibility for parole. It was conceded by counsel for the applicant that a minimum term towards the top end of the range was inevitable.
19 In those circumstances, deprivation of parental care was not a relevant issue. The children would be adults or approaching adulthood by the time the applicant was released in any event. Further, and importantly, it must be borne in mind that the applicant had deprived the children of the care of their mother by killing her. To suggest that the
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- non-parole period should be mitigated because the children would suffer hardship by virtue of the applicant being unable to provide parental care in place of their mother is an argument lacking support in principle and flawed in its factual foundation.
20 It is also relevant to have regard to the victim impact statement of the deceased's mother. This was tendered to the learned sentencing Judge and it outlines the physical and mental pain experienced by the mother of the deceased in consequence of her daughter's death.
21 The judgment of the learned trial Judge in relation to the period the applicant must serve before eligibility for parole was very much a matter of discretion. Such a discretionary judgment is one with which this Court will be reluctant to interfere. The Court has constantly cited Lowndes v The Queen (1999) 195 CLR 665 at [15] in this regard:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
22 The discretion committed to the sentencing Judge in this case was indeed of vital importance in the administration of the criminal justice system and it has not been demonstrated that the discretion miscarried in any way. For these reasons I would refuse leave to appeal.
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