R v Boshevski
[2011] VSC 303
•29 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2010 134
| THE QUEEN |
| V |
| ROBERT BOSHEVSKI |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2011 | |
DATE OF SENTENCE: | 29 June 2011 | |
CASE MAY BE CITED AS: | R v Boshevski | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 303 | |
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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Substantial remorse – Alcoholism – Reasonable prospects for rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr D McKenzie | Victoria Legal Aid |
HIS HONOUR:
Mr Boshevski you have pleaded guilty to a charge of murdering Murray Reuter on 3 November 2009 at Cobram. Both you and Mr Reuter worked at an abattoir in Cobram and you shared a rental house at 12 Warkil Street Cobram.
It seems from the evidence that when you both were sober you were good friends but when alcohol affected one or both of you arguments, sometimes physical, developed.
On Melbourne Cup day 2009 both you and the deceased had consumed very large quantities of alcohol. You had finished work at about lunchtime the previous day and both of you had consumed alcohol during the afternoon and evening of Monday 2 November. At 9.30 a.m. on the Tuesday morning you were filmed purchasing a cask of wine and a stubby of beer from the IGA Supermarket in Cobram. The wine, it seems, was for Mr Reuter. Sometime later you attended first the Cobram Hotel and then the Grand Central leaving there at about 4.20 p.m. You were seen walking by Natalie McDonald in Punt Road, Cobram. She describes you as appearing drunk and stumbling as you walked. This was at 4.30 p.m.
It is clear that Mr Reuter, although not with you at the hotels, also consumed a very considerable quantity of alcohol on this day, its effects perhaps being cumulative upon the effects from his consumption on the Monday. A blood test taken post-mortem demonstrated upon analysis a blood alcohol concentration of 0.40ml/100 millitre. This is an extraordinarily high reading.
There is a paucity of direct evidence as to what actually happened at the Warkil Street House. You must have arrived back there some time shortly after 4.30 p.m. At approximately 6.00 p.m. a neighbour Marcus Diaco heard you saying “if you fucking do that again I will stab you in the neck.” Another neighbour heard arguing and raised voices. At 7.16 p.m. your friend Louise Semmell telephoned you from Launceston. You sounded drunk and Ms Semmell did not take you seriously when you told her you had killed Mr Reuter. You were ‘heavily affected by alcohol” at 9.53 p.m. when observed in a police interview room by Detective Senior Constable Prestage of the Cobram Police. Your condition was such that you were not formally interviewed until the next morning. Your taped responses to Senior Constable Pert at the scene demonstrated considerable apparent alcohol related confusion. Your answers ranged from “ ……..I killed that prick….’ to “……..he’s me mate……’ to “……..I wasn’t here……..I just turned up…..”.
Your instructions to your psychologist and to Mr McKenzie your Barrister are to the effect that you have no recollection of any events surrounding the death of Mr Reuter. After some consideration, I am satisfied on balance that this is correct. Whilst you maintained to the police that you sat outside your house drinking for some hours before going inside and discovering Mr Reuter’s body, towards the end of your interview you accepted that you may have been responsible for his death:
Q.(281) Alright. I’ll put it to you that you are responsible for the injuries to Murray which have ultimately caused his death and that is you are responsible for his murder. What do you have to say to that?
A. I can’t recall anything I did.
Q. (282) I’ll put it---?
A. I must have been blank. I can’t remember.
Q.(287 And I put it to you that what you’ve done to Murray was while he was lying down on the couch it hasn’t been – it has not been as a result of any kind of struggle or any – you trying to defend yourself. You’ve attacked him when he was not expecting to be attacked.
A.I couldn’t do that. Just walk up to somebody. I’m not that type of person to go and kill someone and don’t remember.
I am fortified in concluding that you suffered from alcoholic amnesia by the acceptance of that fact by Mr D’Arcy who prosecutes, and by the significant and observed extent of your intoxication which I have set out a short time go.
Whilst there is no direct evidence of how the incident developed, the injuries sustained by the deceased are clear enough. Two full depth penetration stab wounds were observed to the right side of the chest. These wounds terminated at the back of the chest wall, traversed major vessels, the heart and the right lung. There were also wounds to the face, the left side of the chest, and the arms. At least some of the arm injuries were of the defensive type which suggests that the deceased was conscious at the time he was attacked despite his blood alcohol reading.
The deceased was a decent young man whose family have been profoundly affected by his passing. Mr D’Arcy read victim impact statements from his sister and mother. They will always feel their loss deeply, a loss that was totally unnecessary and for which you must bear full responsibility. I am required to and do take their loss into account.
You have been an alcoholic for most of your adult life, although it seems that you have only recently accepted that alcohol has compromised your life. Mr McKenzie outlined your sometimes tragic family history. It seems you are a third generation alcoholic. Your father, whom you idolised, when drunk was violent towards your mother. During one such episode she killed him and was imprisoned for three years. You were about nine when this occurred. You lived with your grandparents in their Macedonian village during this period. From your early teens you would partake in the indigenous ‘grappa’. You went to military officer training school at about the age of 17 or 18 and after your first year of that training, your mother migrated to Australia with your stepfather and your younger brother, and of course you.
Ms Lechner, a forensic psychologist engaged by your solicitors, outlines in her helpful report a history of escalating alcohol consumption from this time. You gained manual work upon your arrival in Australia and have rarely been unemployed. You spent a large proportion of your earnings at hotels. Drinking provided you with an instant circle of friends in a new country. You have never been able to maintain long term relationships although two short term relationships have resulted in three, now adult children. I have no doubt that your alcoholism has contributed to your being unable to sustain meaningful familial relationships, be they with your then partners or your children.
You have estimated that over the last ten or fifteen years you were spending “up to $300 a week on grog.” During this time you remained in often heavy labouring jobs. I suspect this has contributed to your current surprisingly good health. Doubtless the year and a half you have abstained from alcohol whilst in custody has also contributed to your good health.
You have never sought help for your alcoholism, nor have you had any periods of abstinence up until your arrest. Over the last five years, before your arrest, your life revolved around work and the pub. As an abattoir worker you would typically start work early and finish at about lunch time. You would then attend the hotel and drink until it was time to go home to bed. You reported to Ms Lechner that during the period you would often suffer from what you described as “the shakes”; you would often experience alcoholic blackouts and experience memory loss. Two to three times a week you would wet your bed.
I am encouraged by your response to both your alcoholism and more generally the predicament you find yourself in. I consider that your prospects for rehabilitation are entirely dependent upon your continued abstinence from alcohol. You have completed your withdrawal from alcohol whilst on remand and have expressed an insight into the need for ongoing abstinence and a preparedness to seek assistance in this regard, both in gaol and in the community. You have two minor prior convictions which I regard as irrelevant and I propose to treat you as a first offender. Whilst I am guarded about the prospects for your rehabilitation, I accept that you are genuine in your expressions of desire to avoid alcohol in the future. On balance, I consider your prospects for rehabilitation are very reasonable. I take into account in your favour your lack of relevant prior criminal convictions.
I am satisfied that you have exhibited significant remorse. I accept that your plea of guilty evidences remorse. I remarked in discussion with Mr McKenzie that there are, on occasions, pleas of guilty in this court to overwhelming cases. There is a utilitarian value to these types of pleas but often it is difficult to detect remorse from the fact of the plea itself. I do not believe that your plea is in this category. While I believe it is likely, had you pleaded not guilty to murder, that you would have been found guilty, this result was by no means a certainty. By your plea you have admitted that you intended to kill Mr Reuter or at least cause him really serious injury. I have said that I accept that you have no memory of the incident itself. Your plea, therefore, evidences an acceptance by you of what your intention must have been, rather than what you know it to have been. As I have said, I am prepared to conclude from your plea a significant level of contrition or remorse. You have expressed remorse to Ms Lechner which might be expected in the controlled climate of a medico-legal psychological examination but you have also demonstrated significant remorse to your friends. Luke Barry was until the day prior to this incident a friend and housemate of both Mr Reuter and you. He was a witness at the committal and prepared an additional statement that was tendered by Mr McKenzie on your plea. Mr D’Arcy did not object to its tender and advised me that the Crown accepted its contents. Mr Barry in that additional statement a deterioration in the dynamics between you and the deceased:
“I know Bob is very remorseful of what has happened knowing quite well it has totally been caused through alcohol tempers and both refusing to back down from each other. To me as sharing a house with both of them I found them to be both great mates when alcohol was not involved to a great extent.
I cannot believe and come to terms with this sad tragedy. The sadness to the Reuter family and the Boshevski family and by two great mates.”
Mr Barry also sets out in that statement how sometimes your disagreements with Mr Reuter became physical although he had never seen you punch Mr Reuter.
“I have never seen Bob punch Murray but in the heat of their arguments both Bob and Murray were very loud vocal, bad language and would push and shove each other, to what I would call a very dangerous situation. I would break it up and settle them both down and tell them both to wake up to themselves, but on two occasions I had no control to stop them. They were absolutely drunk and neither of them would back down calm down and see reason.”
On one occasion three months prior to this incident you pushed the deceased and he stumbled through a window severely lacerating his arm. Notwithstanding this I accept that you demonstrate a high level of remorse and you are entitled to credit for that.
I have touched upon your plea of guilty and its relationship to the aspect of remorse. It also has a utilitarian value. The relatives of the deceased have been spared the ordeal of a criminal trial and the State has been saved the expense and inconvenience of staging such a trial. I estimate that had you contested the charge of murder a trial would have occupied two or three weeks of court time. I do not propose to penalise you for the lateness of the plea. As I have said, I accept that you have no memory of relevant events. In that circumstance, I accept that you needed time to consider your position and seek advice before committing yourself to a plea of guilty to the charge of murder.
Ms Lechner identifies that you suffer from symptoms of alcohol dependency, which are currently in remission, and moderate levels of depression, although it is not put on your behalf that there is any link between any depressive illness and the offending. Ms Lechner does, however, consider there is a link between your alcoholism and a long standing lowering of mood which has been masked by your drinking. I accept that custody may be slightly more onerous to a recovering alcoholic with long standing symptoms of depression and I take this into account in your favour, although I do not consider it to be a weighty factor.
Whilst there is much that can be and has been said on your behalf by Mr McKenzie in the course of his very capable plea, the fact remains that you have taken a young man’s life. At the time you did so you acted consciously and voluntarily and you intended, at the very least, to cause him really serious injury. The community expects such behaviour to be denounced and punished. Part of this sentencing exercise must be to deter others, no matter how drunk they are, from resorting to extreme violence to resolve their disputes. I do not consider that specific or personal deterrence has a significant role to play in this sentencing exercise.
This is a tragic case. Lorraine and Emily Reuter have lost a loved one. The quality of their lives will be forever diminished by your actions, and so will yours. You are now nearly 56 years old. I necessarily will have to sentence you to a term of imprisonment that will constitute a large proportion of the rest of your life. You may never see your mother or your stepfather again. You are still young enough to offer the community something upon your release. That, or course, I believe depends of course upon whether you have the strength to remain abstinent for the rest of your life.
Stand up please.
I sentence you to 14 years and 6 months imprisonment. I declare that you will be eligible for release on parole after serving 11 years of that sentence.
I declare that 603 days of that sentence has been served by way of pre-sentence detention, including today.
I declare pursuant to Section 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to 17 years and six months imprisonment with a minimum term of 14 years and six months.
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