R v Babic
[2008] VSC 218
•20 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1470 of 2006
| THE QUEEN | Plaintiff |
| v | |
| FRANK BABIC | Defendant |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2008 | |
DATE OF SENTENCE: | 20 June 2008 | |
CASE MAY BE CITED AS: | R v Babic | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 218 | |
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Sentence murder – committed whilst on parole for murder – serious violent offender – s 6B Part 2A of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | OPP |
| For the Accused | Mr S. Johns Mr S. Cash | Balmer & Associates |
HER HONOUR:
Frank Strathcoe Babic, you have been convicted after trial of the murder of Raphael Innaimo on 26 June 2006. You are now aged 45 having been born on 13 September 1962 and you are and have been unemployed for some time. Your last place of residence was the Edinburgh Castle Hotel in Sydney Road, Brunswick.
You have significant prior convictions commencing in 1981 when you were aged 19 and sentenced to Youth Training Centre for a series of burglaries, thefts and possession of Indian hemp. By February of 1982 you were before the County Court on a charge of armed robbery for which you received 18 months' imprisonment with a minimum of six months. From there your criminal history continues with numerous assaults, possession of drugs, thefts and burglaries from that time, up until July of 1997. You received a number of fines for those offences and also a large number of sentences of imprisonment of short duration being between one month and three.
As I have calculated, there are 84 offences resulting from 25 court appearances in that time. Of utmost significance, however, is an offence that occurred after that, in July of 1997, when you were convicted in the Supreme Court of one count of murder and sentenced to a term of 13 years with a non‑parole period of 10 years and six months. At the time of the commission of this offence for which I am to sentence you, you were on parole for that murder, having been released on 22 December 2005. That means you were on parole for a period of just on six months at the time of the commission of this murder.
As a result of these matters you fall to be sentenced as a serious violent offender under Part 2A of the Sentencing Act 1991. Section 6B of that Act states that:
If a sentence of imprisonment is justified, then the court in determining the length of that sentence must regard the protection of the community as the principal purpose for which sentence is to be imposed and the court may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence.
I intend to make that declaration and to sentence you in that manner.
In this case there are two victim impact statements. The first being from the parents of the deceased man, Janet and Giulio Innaimo and the other from a friend of the deceased, William Thorburn, representing both himself and the community of which Mr Innaimo was a member. I accept without hesitation the sadness and tragedy that this death means to all of those people and also accept that no matter what sentence is passed, their son and friend will not be returned to them. Equally I hope that they understand that whatever sentence is passed it is no reflection on the life or value of the life of Raphael as it is never a reflection of the value of any victim's life. All lives are important and beyond value. The sanctity of human life is why the crime of murder is considered so serious by the Parliament and the courts.
The Crown in your case submit that the appropriate sentence is one of life imprisonment with no minimum term to be fixed. Your counsel agreed that whilst the head sentence as submitted by the Crown was not inappropriate, the court should fix a minimum term. I do intend to fix a minimum term but it will be a substantial minimum term and I shall explain my reasons shortly.
The circumstances of your offending are chillingly similar to your previous conviction for murder. On the day of the murder you and Mr Thomas had travelled around the city and suburbs arriving ultimately back in Brunswick, a short distance from where you were staying at the Edinburgh Castle Hotel. The deceased man ran what could be described as an odd lot warehouse; a large building containing thousands of items for sale. You and Mr Thomas went into the building ‑ not into the store part of the premises, but the private part. The deceased man was having a shower when you entered and came out of the shower wearing some trousers and little else. He confronted you and Thomas in his lounge area and it appears that he believed you had been attempting to steal some items from his premises.
What occurred from there is a matter of some dispute. But I act upon the basis that the deceased man punched you at least once. You had no injuries and I am not satisfied that he inflicted any real injury upon you. What ensued from there is not totally known but ultimately what I am able to say is that the deceased man received a ferocious beating over a period of time. I am unable to say how long that took. But the forensic evidence indicates that he was beaten with a metal fire poker and he sustained at least 55 injuries consistent with being inflicted by that weapon. He also had electrical flex wrapped around his neck tightly and more loosely around his body and legs.
The cause of death was multiple head and neck injuries. There were punched out regions in the cartilage of the larynx all the way through on the left side which punched a hole into the right side. This ultimately created an air embolism that went to the heart and that caused the heart ultimately to be unable to function. There was also a separate blow to the superior corneaux. The other injury of significance was the ligature around the neck. The pathologist was of the view ultimately that Raphael Innaimo died of an air embolism.
It was a savage and sustained beating of this man. It could be described as almost frenzied and it is clear from your lack of injuries that the deceased man was unable to put up any form of substantial resistance. You obviously also wandered about the premises, at least looking for the electrical flex and other slightly odd items, such as girdles and other items of clothing.
After the murder you left the deceased's premises and went to the Safeway Supermarket behind those premises. At the time you were covered in the deceased's blood. It was dripping from the sleeves of your jacket and actually left a trail through the store. Your behaviour at the supermarket was very odd, as despite being covered in blood in this manner you did things that drew attention to yourself and resulted in the police being called.
You waited for the police to attend and ultimately an ambulance was called, as those observing you believed that you must have been injured to account for the quantity of blood that covered you. The ambulance attended and it was soon realised that you were not injured but the police ultimately took you to Royal Melbourne Hospital as you wished to be seen by a doctor. You were suffering no injuries of any consequence whatsoever. It is hard to explain your behaviour or, for that matter, the behaviour of the police who, despite you being covered in significant levels of fresh blood, left you at the hospital without ascertaining the reason why you were soaked in blood.
Mr Ian Joblin has prepared two reports in respect of your mental health, one being prepared on 6 August 1996 in relation to the plea for the previous murder, and the other on 6 April 2008. I will deal with the matters raised therein shortly.
It was only when the body of the deceased was discovered on the day after that you were arrested as you were returning back to your room at the hotel.
The killing was done with a high degree of ferocity and the photos of the deceased's body and the surrounding area where he was killed are a testament to that fact. Whilst accepting that this was not premeditated in the terms of a planned execution, it must equally have continued for some short time. The best term I could use to describe the injuries that were inflicted is that they were consistent with someone who was in a rage, an out of control rage.
The similarities to which I referred earlier as to the previous murder of which you were convicted are contained in the words of Eames J who sentenced you for the crime when he stated:
Mr Domm suffered many severe injuries to the head and face and was badly scalded with boiling water. It is apparent that he was struck many blows in the course of a violent incident and was struck a blow to the head with a kettle. At some point in the struggle a length of electrical flex was passed four times around his neck and he was strangled by you. It was a violent incident although I accept that it probably arose spontaneously, perhaps after bickering between you both and was an episode of short duration.
You told the police in that case that you were in fact acting in self‑defence and it was the deceased that came at you with the electrical cord but that you somehow removed and used it to strangle him. The jury rejected both self‑defence and the provocation defence that was mounted in that case.
In this case, through your instructions to counsel, you also said that you were acting in self‑defence, and that the deceased man had come out of the shower towards you wearing the electrical flex already wound around his neck. Equally in this case the jury accepted that the Crown had proved that you were not acting in self‑defence.
I do not accept that Mr Innaimo was at any stage wearing any electrical flex around his neck.
Your counsel has submitted that I should be satisfied you were provoked, and relied upon the evidence of Mr Thomas at the trial where it was put to him during cross‑examination that the deceased said he was going to grab a knife and kill him, all of which was recanted in re‑examination. Mr Thomas also agreed during cross‑examination that the deceased had the fire poker first and the deceased had pushed you and that the deceased had punched you.
Having observed Mr Thomas during the trial, I am not prepared to act upon statements that were put to him in a leading manner as he was, in my view, a person who had recall of the incident but not of the details and was intellectually incapable of disagreeing on most occasions.
I do accept that the deceased either pushed or punched you. But that that does not in my view come into the category of provocation such as would reduce the sentence that is to be imposed. It may well have made you angry, but not in a manner consistent with being provoked.
Your counsel also submitted that I had to take into account your intoxication on that night and quite rightly stated that it was not a matter of mitigation but a matter of explanation for your actions. It is clear that you had been drinking that day and there is some material indicating you had taken some Xanax tablets. I am unable to determine the quantities of either substance you ingested but your somewhat bizarre behaviour on the night, particularly after the killing had occurred, is capable of indicating a disinhibiting effect as a result of the combination of the two.
I also have to take into account your personal circumstances and history. You are now aged 45 having been born in Croatia and migrating to Australia when you were approximately five. You have one brother who is married with a child and you have no contact with him.
Your parents are still together but you now have no contact with them. You were raised in Ascot Vale attending Flemington High School and leaving upon the completion of fourth form (or Year 9 as it is now is). You sought an apprenticeship upon leaving school but were unable to obtain one. From there you commenced work as an unskilled labourer and held positions of that nature in firms such as Olympic Tyres, printing works and numerous other places. You lived at home until the age of 21; that time living at home was interrupted, of course, with periods of imprisonment. At the age of 21 your father sent you to Croatia to try and enable you to cease using drugs and to find a suitable wife. You did not stay in Croatia as you discovered that you would be the subject of conscription if you remained and accordingly you returned to Melbourne. That is when you met your wife Suzanne whom you married in 1985. You and your wife had four children, two girls and two boys. The two boys were born in 1986 and 1988. Both of them most unfortunately died of cot death, one after four months and one after 16 days. You had moved to Adelaide shortly after your marriage to get away from the drug environment in Melbourne and you were on a methadone program during your time in Adelaide.
That resulted in a period of relative stability because you were working and maintaining the methadone program. The tragedies of the death of your children devastated your wife, and I have no doubt you also. You indicated to the psychologist that you were determined to get through these deaths but your wife went into severe depression and became suicidal, and commenced using illicit drugs. She was ultimately imprisoned as a result of offending in which she became involved. During that time you maintained the children and tried to support your wife whilst she was in custody. It appears that you managed to do that but when she was released she was described as a changed woman and her mental state deteriorated rapidly. She breached her parole and was returned to prison and it was at that point you returned with the children to Melbourne. Up until that time you had been maintaining your methadone.
In 1992, upon your return to Melbourne, it appeared that you became quickly involved again with anti‑social elements and you were having great difficulty in coping. In 1992 you were stabbed, and you also began using heroin again. You ultimately ended up in prison. You lost custody of your two children and your father ceased to have contact with you, although, as I understand it, you remained in contact with your mother. You received another prison sentence and shortly after being released you committed the offence of murder for which you have served a period of 10 and a half years. You spent your time in custody at Pentridge, Fulham, Barwon, Langi Kal Kal. You maintained that you were drug free for the last five years of your prison sentence.
Upon your release from prison, whilst on parole you went to live with your parents in Avondale Heights and you were drug free. You told Mr Joblin that serious problems developed between you and your parents and that you resented the restrictions that your parents' placed upon you. They, not surprisingly, wanted to know of your movements ‑ what you were doing, where you were going, who you were meeting. You stated that they refused to permit people to visit you at home and as a result a relationship that you had started faltered. Two months later, following an argument with your parents, you left and moved into cheap boarding house style accommodation returning to drug use, this time injecting amphetamines.
As I said, you no longer have any contact with any of your family. But after you had started using amphetamines you were in fact hospitalised at Western General as you required an operation to your hand due to the injecting in the veins of your hand.
You met a woman there who offered you the use of a room at her home in Melton. You left hospital, went on to the methadone program and moved to Melton. Whilst collecting your methadone you met another woman named Katie who was there also collecting her methadone and shortly after that you left Melton and moved into Katie's accommodation with her in Footscray. You obtained a job with a furniture company which lasted 3 weeks. At about the end of the 3 weeks they found out about your criminal history and you were sacked.
In late May or early June Katie, with whom you were living, was imprisoned, and as her accommodation was provided through a woman's accommodation centre you had to leave the premises and you returned to the cheap boarding house accommodation also returning immediately to drug use.
In relation to the examination of your drug use and mental health, at the time of the offending, you informed Mr Joblin that you were using amphetamine, Xanax, Rohypnol, Rivotril, Valium, drinking excessively and using methadone, not all necessarily on that day but during that time period.
Mr Joblin referred to your lengthy time in prison as a matter which in his view could not be underestimated. He stated in his report:
There is no doubt that the values, attitudes and behaviours on which prisoners rely in order to complete a sentence satisfactorily are those that are inappropriate in wider society. In my experience, the longer a prisoner is incarcerated, the more difficult it is for such a prisoner to abandon those values, attitudes and behaviour on release. To a degree Mr Babic fits into this category. He acknowledged that it is the “law of the jungle in prison” and he complied with that for 10 and a half years. In my opinion, it would be excessively ambitious to expect that on release he would be able to simply relinquish the pattern of behaviour to which he had become accustomed and immediately practise the more appropriate values of the community at large.
He further stated at page 5 of his report in his conclusion:
Unfortunately, because of his somewhat entrenched personality disorder he has problems coping with conflict. Further, it appears he was not able to leave the psychological state and behaviours necessary for survival within the prison system at the gates when he left in December 2005. When he encountered further problems he sought to answer those problems simply with the same values to which he had been exposed over the previous 10 and a half years in gaol. Unfortunately, they were inappropriate, as seen in his drug use and living conditions over the three weeks prior to late June of 2006. That syndrome has been referred to as the "barbed wire psychosis". While that does not mean that he is at all psychotic it indicates that he is unable to replace the inappropriate values that predominant in the gaol system with the values more suitable to existing in the wider community.
My understanding of that is that to a degree you are institutionalised, having spent so long in custody over your years. You do not appear to have a treatable mental health problem. You are not psychotic but you clearly have a personality disorder, as noted by Mr Joblin. You have no‑one but your current girlfriend, Katie, who has also been in prison, who visits you or is likely to visit you. You have had no recent contact with either of your daughters and are unlikely to receive any contact in the future. And the same considerations apply in respect of your parents and your brother. There is no doubt that your time in prison will be relatively difficult in terms of contact with the outside world and your institutionalisation may well become complete in total.
You have pleaded not guilty and conducted a trial which is your right. Whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated.
Ultimately I am called upon to impose a sentence in light of all of this material to which I have referred, including very specifically the protection of the community. I intend to impose a disproportionate sentence for the offence that you have committed and I do so as I consider that it is necessary for the protection of the community.
In relation to the issue of whether a minimum term should be set, I have been referred to a number of authorities by the Crown in respect of a court's refusal to set a minimum term. I shall mention some of those briefly, being R. v. Farqharson,[1] which was the murder by a father of his three young children as an act of revenge against their mother; R. v. Dupas,[2] the murder of a young woman, with Dupas having already been sentenced to life with no minimum for the murder of two other young women on separate occasions and with numerous prior convictions for rape and other violent offences; R v. Debs,[3] who was sentenced for the murder of two police officers in the execution of their duty and then a young woman prostitute. I was also referred to R. v. Camilleri[4] and R. v. Coulston[5] and other matters.
[1][2007] VSC 469.
[2][2007] VSC 355.
[3][2007] VSC 220.
[4][1999] VSC 184.
[5][1997] 2 V.R. 446.
In R v. Coulston[6] the court comprising Winneke P and Brooking and Southwell JJ stated:
Sentencing judges must remain fully conscious of what has been said in decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non‑parole period. They will remain well aware that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. It is a dreadful sentence, at all events for an offender who is not of advanced age, but dreadful crimes where the past history is bad may require a dreadful punishment.[7]
[6][1997] 2 V.R. 446.
[7]Emphasis added.
Vincent J in R v. Camilleri, which related to the murder and torture of two young girls over a period of days and could be described as crimes of the utmost savagery, stated:
When sentencing Beckett I remarked that there are some occasions, fortunately very few, where even in the case of a person of his age and background, the elements of denunciation, retribution and general deterrence must predominate over the prospects of rehabilitation as sentencing considerations to the extent that no minimum term should be fixed. That proposition has application in your case as it did in his. However, the sentence imposed upon Beckett was reduced in this important respect by reason of his pleas of guilty and co‑operation with the authorities. It is terrible to contemplate the prospect that as a consequence of the order which, in my view, justice and the proper application of sentencing principles would require in your case, you may never be released from prison. However, I consider that my duty is clear.[8]
[8][1999] VSC 184, para 37.
In this case you have certainly committed the worst crime that the law recognises, the taking of another innocent person's life, and this is the second time that you have done that. It was, however, not done as a planned, vengeful exercise, an execution, nor as retribution. It did not involve torture or degradation of the deceased, which are some of the common features of the crimes to which I have referred. The courts have indicated that it is a matter of judgment, and to a large degree of the high moral culpability that certain crimes attract, that would require no minimum term to be set, examples of that being Camilleri and Dupas.
As the court said in R v. Coulston:[9]
Sentencing is governed by the intellect but the emotions also have their proper part to play. These include abhorrence of what is abhorrent, as well as merciful compassion. Often a moral judgment from which emotion cannot be absent must be made about the wickedness of the crime.
[9]At page 463.
It is partly for those reasons that I consider it is still appropriate, despite the lack of remorse demonstrated, to impose a minimum non‑parole period. I accept that despite your age of 45 it must be a significant non‑parole period and that means you will be an aged person when and if you are released in the future. Pursuant to s.16(3B) of the Sentencing Act the non‑parole period that I impose will be served cumulatively upon the parole period of two and a half years that you have breached and are now serving.
Accordingly, in respect of the count of murder you are convicted and sentenced to be imprisoned for life.
I direct that you are to serve a period of 28 years' imprisonment before becoming eligible for parole.
I declare that you are a serious violent offender and you have spent ‑ now, in relation to this, Ms Borg?
MS BORG: Yes, Your Honour.
HER HONOUR: What do you say about the time in custody?
MS BORG: My understanding is that there is 315 days relevant to this offence, being from the date of arrest, being 28 June 2006, until the date that the parole was cancelled on 9th of May 2007.
HER HONOUR: So is that the time that I actually declare as time in custody?
MS BORG: Yes, Your Honour, in regard to this offence, yes. The date after that is relevant to ‑ ‑ ‑
HER HONOUR: I understand that's relevant to the sentence, the breach of parole.
I declare that you have spent 315 days in custody in relation to this offence and that such should be entered in the records of the court.
I grant the application for a retention order under s.464ZFB and a disposal order.
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