Plevac v Regina

[2005] NSWCCA 454

CITATION:	PLEVAC v REGINA [2005] NSWCCA 454
HEARING DATE(S):	27 October 2005
JUDGMENT DATE:	27 October 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 39; Hoeben J at 42
DECISION:	Application dismissed

CATCHWORDS:	CRIMINAL LAW - applicant seeking leave to appeal against sentence of life imprisonment - murder - whether sentence manifestly excessive - excess weight placed on maintenance of innocence where no community protection imperative - uncertain prospects of rehabilitation applicant maintains innocence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW)
CASES CITED:	R v Everett, unreported, Court of Criminal Appeal, 13 December 1995 R v MJR (2002) 54 NSWLR 368 R v Rosevear [1999] NSWSC 732 Veen v The Queen (No 2) (1987) 164 CLR 465
PARTIES:	The Crown Josef Plevac (Appl)
FILE NUMBER(S):	CCA 2005/1193
COUNSEL:	P G Ingram (Crown) A Haesler SC (Appl)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Appl)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	02/002
LOWER COURT JUDICIAL OFFICER:	James J

2005/1193

McCLELLAN CJ at CL
SIMPSON J
HOEBEN J

27 OCTOBER 2005

REGINA v Josef PLEVAC

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against a sentence imposed on him by James J when he redetermined pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 a life sentence imposed on the applicant by McInerney J for the murder of his wife. His Honour imposed a sentence of twenty-five years commencing on 22 September 1989 and expiring on 21 September 2014 with a non-parole period of nineteen years commencing on 22 September 1989 and expiring on 21 September 2008.

2 The applicant was first tried for the murder of his wife before Finlay J and a jury, and was convicted and sentenced to life imprisonment. That conviction was quashed by this Court and a new trial ordered. On 28 August 1996 the applicant was again convicted of murder and sentenced to life imprisonment by McInerney J. His Honour provided that the sentence should date from when the applicant was taken into custody on 22 September 1989.

3 The applicant appealed against his conviction but that appeal was dismissed. Although the applicant accepted the facts tendered by the Crown on the application for redetermination he has otherwise continued to maintain that he was innocent of the offence.

Facts

4 The applicant and his wife, Dana Plevac, separated in October 1988. They had a daughter Natalie who was five years old at the time of the murder. An apprehended domestic violence order, which restrained the applicant from approaching his wife and daughter was in force at the time.

5 In February 1989, the applicant suffered serious burns causing scarring in a fire in the house in which he was living. The burns became infected and the applicant was admitted to hospital.

6 On 19 September 1989, while he was in hospital, the applicant told his daughters from a previous marriage who were visiting him at the time that he still loved his wife and wanted her back. However, he also spoke to his daughters about how scarred and ugly he was and said that he wanted his wife to feel the same pain that he was feeling. Although the applicant had suggested that he was referring to emotional pain, the evidence given by the daughters was that when these remarks were made the applicant was referring to his own physical injuries.

7 The applicant was employed as a milkman. At about 6.30 am on 22 September 1989 he went to a garage where he delivered milk each day and purchased ten dollars worth of petrol.

8 At about 8.30 in the morning the deceased and her daughter Natalie stepped out of their unit on the fourteenth floor of a block of home units and approached the lifts on that floor. A person suddenly appeared, who on the Crown case, was the applicant. His body, apart from his eyes, was totally covered in black clothing. The applicant threw liquid from a container over his wife and set fire to it. The liquid was petrol. Natalie watched as her mother went up in flames. The deceased fell to the ground and crawled into a lift. The applicant ran to the door of the stairs near the lifts. The manager of the block of home units heard the fire alarm go off and saw on a fire board that the fire was on the fourteenth floor. He caused the lift, which was on the fourteenth floor, to descend to the ground floor. When the door of the lift opened he saw a person “that was very much alight at the time and was screaming for help. She came out of the lift, she stopped and she fell over and the flames blew up … and she was lying there. She was pretty much burning”.

9 At about 8.30 in the morning another resident, whose unit was on the second floor of the block of units and who was about to walk down the stairs, smelt smoke and heard a woman crying for help. She saw a man who was naked from the waist up run down the stairs. He appeared to have burns on his back and a bandaged arm and was carrying clothing. He left the stairs on the first floor and the resident observed him outside the block of units running toward the Great Western Highway.

10 A police officer found a plastic container smelling of petrol on the stairs. In the opinion of a senior fire brigade officer a hydrocarbon fuel, such as petrol, had been used in lighting the fire.

11 The deceased told a fire officer that someone had thrown petrol over her but that she did not know who it was. She was taken to hospital but died at approximately 2.40 pm as a result of full thickness burns to 90 per cent of her body.

12 A number of witnesses observed a man who was not wearing a shirt walking or running along the Great Western Highway and later made photographic identifications of the applicant as being the man they had seen. At about 11.30 on the morning of 22 September 1989 a hairdresser in Katoomba cut the applicant’s hair. She noticed black particles that looked like soot in the applicant’s hair. Another hairdresser working at the salon smelt a strong odour of petrol while the applicant was present.

13 At about 11.30 am the applicant telephoned a friend and told her that he was in Katoomba. At about 3.30 pm the applicant arrived at that friend’s house. The friend, who had seen the applicant the night before, noticed that he had had his hair cut. The applicant told her that he had had his hair cut in Fairfield. The applicant asked the friend to telephone his wife’s place of work. The friend did so and was told that Mrs Plevac was dead. She told the applicant, who said, “it can’t be”.

14 The applicant was arrested at about 4 o’clock on the afternoon of 22 September 1989. A police officer observed old scarring on the applicant’s body and what appeared to be fresh burns on the applicant’s left side. A police medical examiner who examined the applicant formed the opinion that a raw, weeping area on the applicant’s upper arm and the left side of his chest and abdomen indicated burns that were less than twenty-four hours old. The applicant admitted to the medical examiner that the fresh burns had been sustained that morning. When questioned by police, the applicant denied killing his wife. He said that on 22 September 1989 he had gone to the service station and bought petrol, that he had later gone to Katoomba and that he had then returned to Sydney and visited the friend. He said that he had last seen his wife several nights before.

15 At the trial the applicant made an unsworn statement to the jury. In his unsworn statement he said that on 22 September 1989, by arrangement with his wife, he had gone to his wife’s unit to collect some of his clothes. His wife, who had come out onto the balcony of the unit, told him to come upstairs and wait on the stairs and the applicant did so. The applicant took off his shirt so as to be ready to put on a clean shirt. He heard his wife and his daughter scream. He opened the door to the fire stairs and saw a man in a tracksuit. He saw his wife and it appeared to the applicant that she was holding the applicant’s clean clothes in a fire. The applicant said:

“I jumped towards her because I got bandage on my hand. I pull everything out and I must have been burnt, I don’t know, but at that stage I completely lost it. I know now but at that stage I lost, panicked and I ran. I ran to my car”.

16 The applicant said that he loved his wife and when people talked about him saying that he wanted Dana to feel pain, it was not physical pain but “I was thinking about pain which was in my heart and how I was missing her, nothing else”. The applicant closed his statement with the following words: ‘I didn’t kill my wife, I am innocent and if they do proper job they will find the real killer. That is all what I think”.

17 When redetermining the applicant’s sentence the sentencing judge considered these facts. His Honour observed that both Finlay J and McInerney J had imposed a life sentence which was mandatory unless the applicant’s culpability was diminished by “any mitigating circumstance” (s 19 of the Crimes Act).

18 When considering the appropriate sentence his Honour paid careful regard to the courses which the applicant has completed in prison, including a course of Christian instruction and other vocational and personal development courses. His Honour also gave careful consideration to the report of a psychiatrist, Dr William Lucas, and to reports from the Serious Offenders Review Council.

19 His Honour also noted that counsel for the applicant accepted that the murder was an objectively serious offence and that the applicant had continued to maintain his innocence so that it could not be said that he had demonstrated any contrition. However, it was pointed out that the report of the prison psychologist, and of Dr Lucas, indicated that the applicant would be likely to be able to be rehabilitated and settled into the community without difficulty. Because the applicant had not been given a determinate sentence he had not progressed through the classification system to a point which would enable his early release. The fixing of a sentence would enable that process to be followed.

The remarks of the sentencing judge

20 The sentencing judge determined that the applicant was eligible to apply for a determination under Schedule 1 of the Act. His Honour noted that he had not been convicted of any offence apart from the murder. His Honour also noted that the applicant was forty years old at the time of committing the offence and when re-sentenced was fifty-five years of age.

21 His Honour considered the facts of the crime and made the following findings at [44]:

“So far as the objective facts of the murder are concerned, the murder was aptly described by Finlay J in his remarks on sentence as “callous, planned and appalling” and in the worst category of murder. The applicant murdered his wife by throwing petrol over her and then striking a match and setting her alight. The applicant clearly had the intention of killing his wife. Although Finlay J did not make any express finding, his Honour would not have described the murder in the terms in which he did, if he had considered that the applicant had merely had an intention to cause grievous bodily harm to his wife. The murder was premeditated and planned. Having himself suffered painful burns as a result of the fire of February 1989, the applicant had determined that his wife should suffer an agonisingly painful death by being burnt. The applicant bought petrol at the service station on the morning of 22 September 1989 and equipped himself with matches. He clothed himself so that all of his body, apart from his eyes, was covered, to eliminate or lessen the risk of his being identified. He went to the block of units where his wife lived and waited on the stairs for her to leave her unit. He committed the murder in the presence of the five year old child of his wife and himself. After committing the murder, the applicant fled and took steps such as having his hair cut, in an attempt to destroy incriminating evidence. “

22 His Honour concluded that notwithstanding the objective seriousness of the offence, and the applicant’s lack of contrition, it was nevertheless appropriate to grant the application and set a specified term for the sentence and a non-parole period.

23 The sentencing judge was mindful of the fact that, apart from this offence, the applicant had led a blameless life with no previous criminal convictions and a good employment history. His Honour also identified the fact that the applicant had been a model prisoner and had an excellent record as a worker in prison workshops. His Honour was satisfied that the applicant would be likely to be able to be rehabilitated and settled into the community.

24 His Honour was referred by counsel to a number of decisions where sentences were imposed for “domestic murder.” R v Everett, unreported, Court of Criminal Appeal, 13 December 1995 and R v Rosevear [1999] NSWSC 732 were both cases where a man had murdered his wife by pouring petrol over her and setting her alight.

25 In Everett, this Court reduced the sentence imposed on the offender from a sentence of twenty-four years with a minimum term of eighteen years to a sentence of twenty-one years with a minimum term of sixteen years. His Honour identified that the Court of Criminal Appeal had reached its decision substantially because the sentencing judge had not made a finding that Everett had the intention of killing his wife and that he might have had the lesser intention of permanently scarring her.

26 In Rosevear, the offender was sentenced to a prison term of twenty years with a minimum term of fifteen years. In that case Studdert J did not make a finding that Rosevear had an intention to kill indicating at [5] that he was “satisfied that Rosevear had an intention to kill or an intention to cause grievous bodily harm or that he had acted with reckless indifference to human life.”

27 James J formed the conclusion that the present applicant’s offence was objectively worse than either of the offences in Everett and Rosevear. He concluded that the applicant had the intention to kill his wife. He also found at [56]:

“There was a higher degree of premediation and planning in the present applicant’s offence. In neither Everett or Rosevear was there a determination on the part of the offender to subject the victim to what the offender knew from person experience would be agonising pain. In neither Everett nor Rosevear was the offence committed in the presence of a child.”

28 Having regard to all of these matters his Honour reached the following conclusion at [57]-[59]:

“Having taken into account the objective facts of the offence, the subjective features of the applicant, the applicant’s progress in prison, the other matters I am required to take into account by the provisions of Sch 1 and the various cases to which I was referred, I have decided that I should set a specified term for the sentence of twenty-five years.
In setting a non-parole period I recognise that I am setting a period on the expiration of which the applicant will merely be eligible to be released and will not necessarily be released and that the applicant will not be released until the Parole Board has decided that the release of the applicant is appropriate. On the other hand, in setting a non-parole period, I am required to set a period which I consider is the minimum term that justice requires that the applicant should serve in prison. See for example R v Bugmy (1990) 169 CLR 525 at 536 per Dawson, Toohey and Gaudron JJ. I have decided that I should set a non-parole period of nineteen years.”

The application

29 The applicant advances one ground of appeal, being that the sentence imposed was manifestly excessive. That ground is particularised as follows:

(a) The sentence was too severe having regard to the pattern of sentencing at the time it was committed.
(b) In his assessment of this offence’s objective criminality, his Honour erred in his use and reference to analogous cases.
(c) In the particular circumstances of this case, his Honour erred in placing significance, or too great a significance, on the applicant’s maintenance of his innocence.

30 The applicant accepts that it is proper for a court when determining a sentence to have regard to the sentencing practice as it was at the date of the commission of the offence (R v MJR (2002) 54 NSWLR 368). In identifying the pattern of sentencing it will be appropriate to have regard to available statistics, any surveys and sentences which were imposed.

31 However, notwithstanding the relevance utility of these matters the court is ultimately required to impose the sentence which, having regard to the circumstances of the individual case and the purpose of sentencing, is appropriate.

32 In the present case, the sentencing judge had before him a survey of sentences that had been imposed where a spouse had killed another. From this material it is submitted that no range for the offence of a spouse killing a spouse by fire could be identified. This is undoubtedly the case for, thankfully, this type of killing has not been common.

33 Notwithstanding the fact that a range could not be identified there are two cases Everett and Rosevear, that provide assistance in identifying the appropriate penalty in the applicant’s case. His Honour had regard to them and, as I have earlier related, the sentencing judge imposed a more severe sentence than was imposed in either of those cases.

34 The applicant complains that in taking this course his Honour was in error. In particular, it is submitted that his Honour erred in finding that the applicant’s offence was objectively worse than either of the offences in Everett and Rosevear. Complaint is also made that his Honour placed too much emphasis on the objective facts diminishing the significance of the applicant’s progress and rehabilitation demonstrated during his fifteen yeas in prison.

35 I am not persuaded that his Honour has erred when imposing sentence. I am satisfied that it was open to his Honour to find that the applicant had intended to kill the deceased and had planned her murder in a way which would inflict the maximum pain and distress before she died. His was a truly terrible crime committed in the presence of their five year old daughter. It deserved punishment at the top of the appropriate range of sentencing.

36 I accept that the contemporary reports in relation to the behaviour of the applicant indicate that he has met the requirements of the prison system. However, it is apparent that he has not come to a realistic appreciation of his actions and accordingly his complete rehabilitation may be uncertain.

37 Complaint is made by the applicant that the sentence imposed by his Honour was inappropriately influenced by his Honour placing too great a significance on the applicant’s maintenance of his innocence. His Honour found that because he has not admitted his guilt “he has not received any psychological counselling which might have assisted his rehabilitation.” It is submitted that his Honour has used the fact that the applicant has not admitted his guilt to increase the sentence rather than confining its significance to denying the applicant any discount because of an admission. It is further submitted that before this fact it could be taken into account to increase any sentence it would have to be shown that the failure to acknowledge guilt increases the objective seriousness of the offence or was evidence of a dangerous propensity requiring protection of the community. Reference is made by counsel to Veen v The Queen (No 2) (1988) 164 CLR 465. It is submitted that in the absence of evidence that the protection of the community or any other purpose of sentencing was served by increasing the sentence because of the failure of the applicant to acknowledge guilt, his refusal to do so, was not a significant factor in the sentencing exercise and his Honour erred in so regarding it.

38 I accept that the applicant has complied with the requirements of the prison authorities during his already lengthy term of imprisonment. However, in my opinion, his Honour had appropriate regard to the applicant’s continued failure to acknowledge his guilt. If the applicant had taken a different course I may have considered some reduction in the sentence which his Honour imposed. However, this is not the case and in my opinion no less severe sentence than that imposed by the sentencing judge is warranted in law. Although I would grant leave to appeal, I would dismiss the appeal.

39 SIMPSON J: I agree with the order proposed by the presiding judge. I would simply add this: that on the hearing of the application fresh evidence was tendered. The Crown did not take issue that this evidence was in a conventional sense fresh evidence available to be taken into account on the application.

40 The Court accordingly received affidavit evidence concerning a medical condition that the applicant now suffers. He has developed an onset of severe vision impairment which on the medical evidence is potentially sight threatening. While that condition engenders a certain amount of sympathy for the applicant, and it may well be that it will add to his difficulties during his period of incarceration, it is not in my opinion such as to call for any variation in the sentence imposed or intervention by this Court.

41 Accordingly, I agree that the application should be dismissed.

42 HOEBEN J: I agree with the orders proposed by the presiding judge.

43 McCLELLAN CJ at CL: The orders of the Court will be as I have indicated.

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