R v Budimir
[2013] VSC 149
•5 April 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0105
| THE QUEEN |
| v |
| MARK BUDIMIR |
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JUDGE: | NETTLE JA | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 6, 7, 8, 11, 12, 13, 14, 15, 18, 19 February and | |
DATE OF SENTENCE: | 5 April 2013 | |
CASE MAY BE CITED AS: | R v Budimir | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 149 | |
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CRIMINAL LAW – Sentencing – Murder – Brutal physical assault on estranged wife’s lover resulting in death – Aggravating circumstances – Partially successful attempt to incinerate body – Flight – Stole deceased’s car and left State – Limited remorse – Problematic prospects of rehabilitation – Hardship – Family Court orders precluding accused from having any contact with children – Sentence of 18 years’ imprisonment with a non-parole period of 16 years – Pasquale Barbaro v R [2012] VSCA 288, applied; Markovic v R (2010) 30 VR 589, followed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr C L Lovitt QC (until 19/2/13) with Ms S L Hinchey | Galbally Rolfe Barristers & Solicitors |
HIS HONOUR:
Mark Budimir, you have been found guilty of the murder of Dino Moresco at Brooklyn on 30 October 2011 and it remains for me to sentence you.
The facts
You were been born on 15 November 1968 and so you were almost 42 years of age at the time of the murder. It came about as a result of a breakdown in your marriage to Jana Budimir. You first met her in 1988 when you were 19 years of age and you married her in 1992 when you were 23 and she was 22. She was the first woman with whom you had a serious relationship. There are four children of the union, ranging in age from eight to 15.
From the time of birth of your first child until about 2009, Jana Budimir was essentially a stay-at-home mother and house wife who occasionally undertook some part-time work. Following the birth of your fourth child, Ms Budimir began a business from home which soon expanded and resulted in her leasing a storage container from which she carried on business, and then premises in Geelong Road, Footscray in which she developed a nursery business under the name or style of ‘Garden Door’. She worked long hours in the business during the week and at weekends and, as a result, she began to spend far less time at home caring for you and the children.
During 2010, she began to purchase stocks of concrete garden statues from the deceased who carried on a business of manufacturing concrete garden ornaments from factory premises at 19 Industry Park Drive, Brooklyn. To start with, their relationship was professional and platonic but, as time advanced, they saw more of each other and they became very close. Perhaps, because of that or possibly for other reasons, your marriage began to fail. By early 2011, it was under considerable stress. You were keen for it to survive, and you sought to persuade your wife to the same point of view, but she wanted none of it.
At some time during 2011, you became aware that she was seeing a great deal of the deceased and you went to visit him. According to what you told police after you were arrested for his murder, you went and saw him a couple of times before 20 September 2011 and urged him to see less of your wife and not to meet her socially. He failed to heed your requests. According to Jana Budimir’s evidence, she first slept with him on 19 August 2011, the day after you and she and he had been out together to celebrate her birthday. At that stage, you were unaware of her infidelity.
Events developed from there and, on the night of Saturday 17 September 2011, while you were you were at Dromana looking after the children, Jana Budimir went with the deceased to the West End nightclub and then spent the remainder of the night with him. The next day, they went to a trade fair in Sydney where, once again, they spent the night together before returning to Melbourne late the following day.
By the time Jana Budimir returned home in the early hours of Tuesday 20 September 2011, you had been told by a friend that she was seen with the deceased at the West End nightclub, and you strongly suspected that she had spent the remainder of the weekend with him in Sydney. At some stage, you also obtained access to her telephone account records and ascertained that the number and duration of telephone calls between her and the deceased strongly implied that they had been romantically involved since about June 2011.
At that point, she still maintained to your face that she was not romantically involved with him, although she made plain that she no longer loved you and that she wanted you to leave home. You refused to leave home.
A day or two later, you went again to the deceased’s factory and warned him, in terms which he perceived to be a serious threat that, if he did not stay away from your wife, you would so deal with him that it would make the front page of the newspapers.
The state of affairs worsened on the night of Friday 23 September 2011. Over the course of a long ranging discussion, you repeatedly implored Jana Budimir not to abandon your marriage but she remained adamant that the marriage was at an end and she wanted you to leave. Eventually, in anger and frustration, you jumped on her on the bed and slapped her a number of times on the face before locking her in the room. Then police were called and you were arrested and, shortly after that, she obtained an intervention order from the Magistrates’ Court which prohibited you from returning home or having any more contact with her or the children. You were also charged with assault and false imprisonment, to which you later pleaded guilty and for which you were given a suspended sentence.
Despite the intervention order, you continued to visit the children at home during the day when Jana Budimir was at work, apparently with her tacit consent. You also reached an informal arrangement with her that you should have custody of the children during every other weekend. She seemed glad to be relieved of the obligation of looking after them at those times. She also agreed that she would have the intervention order varied to allow you lawful access to the children, although she failed to have that done.
Early in October 2011, you had another altercation with her when you went to her Garden Door premises in breach of the intervention order and argued with her and, as a result, you were arrested and held in remand for 10 days until released on 12 October 2011.
After being released, you arranged with her for you to take custody of the children for the long weekend preceding Cup Day and, at lunch time on Saturday 29 October 2011, you took custody of the children at an arranged meeting at a Hungry Jack’s restaurant close to the matrimonial home. Your mother was also present, possibly at Jana Budimir’s insistence, and the plan was that you should take the children to Dromana for the weekend and stay in a caravan which you kept there in a caravan park. The weather proved so inclement, however, as to make the trip impracticable. Consequently, during the afternoon of Saturday 29 October 2011, you spoke by telephone to Jana Budimir as to what you should do with the children in lieu of taking them to Dromana. She recommended that you take them next day to an arts and crafts fair which was then being staged at the Royal Exhibition Building.
Unfortunately, you chose not to do so. Instead, the next day, you left the children in the care of your sister, Lily, and then drove via the Garden Door premises, which you observed were closed, to the marital home to keep watch on Jana Budimir. When you got there in the mid-afternoon, you noticed that she and the deceased were loading some of your belongings into a truck which you owned but which was still in her possession. In her evidence, she described the items as ‘rubbish’ for which she hoped to get some money from a metal recycler. Possibly, you thought them to be more valuable than that. Whether or not you did so, however, you were incensed that she and her lover should deal with your property without your consent. It added considerably to the sense of injustice which you felt at being kept out of your home by court order while your wife continued to live there and sleep with her lover in your bed.
At trial, it was suggested on your behalf that you went to the deceased’s factory because you were concerned about your possessions or because you needed them for your business and because you wanted to see whether Jana Budimir and the deceased had taken them there. On the plea, it was submitted that you did so because you wanted to take photographs of Jana Budimir and the deceased converting your possessions, and thereby vindicate your position. Neither explanation is particularly convincing. As I apprehend the evidence adduced at trial, you knew that the only items which they touched were the ones which you saw them loading, and it is improbable that you had any concern about the value of those or needed to use them in your business. The only evidence as to their nature is that they consisted of old and rusted disused white goods and a disused garden roller. In those circumstances, it is more likely that the gravamen of your concern was what you regarded as the contumelious manner in which Jana Budimir and the deceased were dealing with your things.
When you first went to the deceased’s factory that afternoon, you entered onto the premises, although not into the factory itself. You later told police that you wore gloves because you knew that you were not meant to be there and you did not wish to leave any fingerprints. Consequently, I doubt that your only purpose was to check on goods. Your previous conduct in going to the factory implies that, if your only concern were with something to which you considered you were lawfully entitled, you would not have had any concern about leaving finger prints or otherwise about who knew you had been there.
Be that as it may, however, shortly after you arrived at the factory, Stephen O’Connor, who was a business associate of the deceased, arrived there with a load of cement for him. He saw you run out from behind bushes and disappear down the right hand side of the factory. Then, a few moments later, he saw you come from the side of the factory, run out to the road and drive away in your green Commodore station wagon at a very high rate of acceleration. From there, you went back to the matrimonial home and took up watch again on Jana Budimir and the deceased and, at that point, you took some photographs of the deceased’s car number plate and registration sticker.
Meanwhile, Mr O’Connor had returned to his factory, which was relatively close to the deceased’s factory, and telephoned the deceased by landline. He told him that he had seen a man acting as you did at the factory and the deceased replied that he thought he knew who it was. The deceased also told Mr O’Connor that he would see him again back at the factory. By then you were keeping watch on Jana Budimir and it is possible that you heard one side of the telephone conversation or at least guessed what it was about. Whether or not you heard any of the conversation, however, you anticipated that the deceased would return to his factory, and so a short time later you returned to the factory to await his arrival.
You got there before him and you kept a distance. At around the same time, Ms Imogen Dinges, who was a customer, arrived at the factory in her car with her daughter. She had come to collect a load of concrete statues. She arrived at a little after 5.00 pm and found that the deceased was not present. Then she waited until shortly after 6.00 pm before departing unrequited. It is likely that you were close by during that period although she did not notice you.
Just after Ms Dinges left the factory, at approximately 6.10 pm, the deceased arrived in his car. In your record of interview, you said that, when he arrived, you were seated in your car in the cul-de-sac adjacent to the abattoir car park at the end of Industry Park Drive. You also said that you did not wish to confront him but that he appeared to notice your car. You claimed that you then got out of your car and hid behind a wheelie bin in the hope that he would not see you. Then, according to you, he parked his car diagonally across the road to block your car; got out of his car; picked up two or three rocks [although, at another stage of the interview, you told police that he may have had the rocks with him in his car]; walked up to you, saying: ‘What the fuck are you doing here? What are you doing here? Why are you here for [sic]? You are ‘a fuckin’ idiot’; and then threw three rocks at you, one of which hit you on the knuckles of the right hand while you were allegedly protecting your face, and another of which hit you on the arm.
I note that, if in truth the deceased threw any rocks which hit you, which I doubt, any injuries caused to you were de minimis.
At one point in your record of interview, you told police that the deceased then said again: ’what are doing here’, and with that you started running towards him. But, at a later point in the interview, you changed that and said that, before you started running towards him, he threw his mobile telephone at you and you caught it, and that he then ran away towards the abattoir car park. You also told police that your immediate reaction to catching the telephone was to think: ‘Grouse, he won’t be able to ring the police now’, and then you chased him. That admission suggests that you intended to hit him.
According to one of the versions of events which you gave police, the deceased got to another rock while you were chasing him and threw it at you but it missed. According to another version of events which you gave police, in the same interview:
the deceased ’was walking to get more rocks, or running. Yeah, he would’ve been running to get more rocks …[a]nd I caught up to him by the time he bent over to pick them up.
If it were necessary to choose between those two versions of events, I should be inclined to pick the latter. But both are unconvincing. The idea that the deceased deliberately blocked your path of egress to provoke a confrontation and then advanced towards you throwing rocks is inherently unlikely. By all accounts, he was a man of slight build and quiet, non-violent disposition and the evidence is that, after you went to see him at his factory on the last occasion before the killing, he feared you. While I cannot say so beyond reasonable doubt, in the scheme of things it is more probable than not that, if he had seen you parked in the cul-de-sac, he would have stayed well away and called the police.
What is clear beyond reasonable doubt, however, is that, by the time you got up to him, you had every intention of hurting him. As you told police, when you caught him, you grabbed him by the jumper and threw him down to the ground and started to wrestle with him. Then you got him in a headlock and, when he managed to struggle out of it, you elbowed him in his chest and head wherever you could. You said that he was kicking and punching and trying to scratch you. No doubt he was. I infer that he was struggling desperately to resist your attack. You said that you managed to rip his hand off your face and to stand up while he was on the ground. There is no reason to doubt that either. You were far bigger and stronger than he was and you were readying yourself for the end play. At that point, as you told police, you asked him: ’Why are you cheating with my wife’ (and you soliloquized to police as you said that: ‘I warned him if he was doing anything with my wife that he’d be in big trouble’). Then you lifted him up from the ground to head height and, as you put it, threw him onto the ground ‘as hard as you could’.
In your record of interview, you described that move as being like a ‘power slam’ ‘in wrestling’ and that the deceased landed on his head and that you saw blood coming out of his mouth. I have no doubt that you did. To throw a small man from head height onto a paved surface with as much force as a man of your height and strength can muster is likely to have that effect.
You claimed that, even then, he was still trying to ‘fight [you] and stuff like that’. I reject that as false. It is not reasonably possible that the deceased was trying to fight you after you had thrown him head first onto the ground as hard as you could and blood was coming out of his mouth.
You said, too, that you then ‘stood on his chest a few times, to keep him down’. I do not accept that there was any need ‘to keep him down’. By that stage the further blows which you admit you administered with your feet were gratuitous and, I am satisfied, were solely for the purpose of inflicting further serious injury.
You said that, after those blows, the deceased was ‘still spluttering and bloody and all that sort of stuff and blood was still coming out of his mouth. I think he had a broken nose or something, as well’. You added that you recognised that the deceased ‘wasn’t gonna move, he was – he was coughing blood and everything like that. And he was rolling around on the ground’. Then, you said, you noticed that there was a truck in the meatworks which was starting to come out to the street and you did not want the driver to see ‘all the fighting that was out on the street’. And so to prevent that, you went to the deceased’s car and drove it around and parked it next to him to block the truck driver’s view. I accept that as accurate.
After the truck had ceased to be a concern, you said that you bundled the deceased into the load area of his vehicle, shut the lid and drove him approximately two kilometres to Bunting Street, Brooklyn to a disused area of an industrial site where rubbish was prone to be dumped. It does not appear how you knew about that place. You told police that you then walked back to your vehicle in Industry Park Drive, and from there drove your car home to your parents’ farm in Rockbank. There you obtained two litres of petrol from the shed for the purposes of burning the deceased’s body and then you drove back to Bunting Street with the petrol. By that stage, the deceased was dead.
You claimed that you were in a quandary as to whether to take his body with you or to leave it there; but you decided on the latter because he had fouled himself and smelt. Consequently, you pulled his body out of the load area, pulled off his sneakers and jeans, and bundled his body head first into a wheelie bin. Then you poured the petrol over the body, placed papers around it and set it alight, after which you piled shipping pallets and a wardrobe on the fire to aid the conflagration.
After a while, you drove to Millers Road where you purchased a meal of kebabs and then drove back past Bunting Street to have a look at how the fire was progressing. You claimed that you could not see anything at that point and so you drove on down Somerville Road to Fairburn Road.
Fortuitously, a policeman who was driving in the opposite direction noticed that you were driving the deceased’s car. Its details had been put out on a keep-a-look–out call. He made a u-turn and followed you with his warning lights flashing and, when you realised that he was after you, you sped away at very high speed in order to avoid him.
From there, you drove through the night, via Stawell where you stole some number plates from a car yard and exchanged them for the plates fitted to the deceased’s vehicle, and then on via Echuca to Broken Hill.
The following morning, you made a number of telephone calls to Jana Budimir in which, in addition to vituperating her for her infidelity with the deceased, you told her emphatically that you had got rid of the deceased for her and the children and that you had got rid of him so that she would come back to you. Later that day, you were caught and arrested by New South Wales police.
Intention to inflict really serious injury
The injuries which you inflicted on the deceased were massive. According to the expert evidence adduced at trial, they included subarachnoid haemorrhage, bruising and lacerations to the face, a broken nose, a fractured first left rib, laceration of the liver to the point that it was almost torn in half, a small bowel mesenteric haemorrhage, a large volume of free blood in the abdomen and a fractured hyoid bone, due to multiple blunt force trauma. The expert witnesses were unanimous in the view that such injuries could not have been caused in the manner you described to police. On that basis, I conclude beyond reasonable doubt that you gave him a far greater beating, and kicking, than you were prepared to admit. As the process was aptly described at trial, you literally pummelled him to death.
Your defence at trial was that you did not intend to kill him or cause him really serious injury but reacted instinctively, in a mental state compromised by the breakup of your marriage, to what you perceived to be a danger of really serious injury. On that basis, you claimed that, if you were guilty of any offence, which you denied, you were guilty of no more than manslaughter or possibly defensive homicide.
Among other problems with that defence, however, were that, at relevant times, you were 6’ 2” in height and weighed at least 100 kilograms, whereas the deceased was only 5’ 8’’ in height and weighed but 70 kilograms; the ‘rocks’ which you say the deceased threw at you, if indeed he did throw them at you, were on your own admission smaller than a tennis ball; and, as I have already noticed, the deceased was a man of quiet and inherently non-violent disposition.
In the result, the jury rejected your defence. By their verdict, they have shown that they were satisfied beyond reasonable doubt that you intended at least to cause the deceased really serious injury and that you did not honestly believe that he posed a risk of death or really serious injury to you. I sentence you accordingly.[1]
[1]Cheung v The Queen (2001) 209 CLR 1, 12 [14] (Gleeson CJ, Gummow and Hayne JJ).
Nature and gravity of the offence
Murder is the most serious offence in the criminal calendar, for which the maximum penalty is life imprisonment. This was a relatively grave murder because, although it was not necessarily planned or premeditated, and you did not use any weapons other than your fists, elbows and feet, your size and weight relative to the deceased, your obvious physical prowess and strength compared to his lack of it, and the nature of the injuries which you inflicted on him, first with the headlock and then with what must have been a succession of agonising blows, leave no doubt that you deliberately intended so to damage his body that, objectively speaking, he was very likely to die.
Denunciation and general deterrence
I recognise that you were, in some sense, provoked by the deceased’s association with your wife and by the deceitful way in which both he and she had treated you concerning their affair. I also accept that, although that sort of provocation can no longer be prayed in aid as a partial defence to murder, it is something which might perhaps be taken into account in mitigation of penalty.[2] Even so, this was a brutal murder of a small and peaceful man, by a large and powerful assailant, and it warrants condign punishment in the formulation of which denunciation and general deterrence are the predominant sentencing considerations.
[2]R v Okutgen (1982) 8 A Crim R 262, 264; R v Alexandridis [2008] VSCA 126, [14] (Redlich JA); cf R v Heenan [2006] VSC 123, [31].
Aggravating circumstances
The gravity of your crime was exacerbated by your efforts to destroy the deceased’s body by burning it and by stealing his car and belongings in your attempt to evade detection. Quite apart from demonstrating a palpable lack of remorse, your profanation of his body rendered the crime ‘especially serious’[3] and, as the victim impact statements show, caused the deceased’s family further inestimable pain and suffering.
[3]Director of Public Prosecutions v England [1999] 2 VR 258, 266 (Brooking JA), citing Director ofPublic Prosecutions v McKee [1999] VSC 207 (Cummins J).
Despite the carefully constructed and forcefully argued submissions of your counsel, which I found to be of considerable assistance, I do not accept that your burning of the deceased’s body was the result of irrational panic. It was a calculated manoeuvre for you to return to your parents’ farm and obtain petrol with which to burn his body, and evidently you were sufficiently calm about what you were doing – even after you set his body alight as if it were just so much garbage – to find the time and inclination to purchase a meal of kebabs. Perhaps even more remarkably, you then set about planning to take a holiday of a kind which you remembered your wife had enjoyed some 15 years before.
Limited remorse
You pleaded not guilty, as was your right, and for which you are not to be punished.[4] Nonetheless, by putting the Crown to proof, you have forgone the discount on sentence to which you would have been entitled for the utilitarian value of a plea of guilty and you have foregone the further discount for remorse of which a plea of guilty might have been regarded as an indicative.[5]
[4]R v Gray [1977] VR 225, 231; R v RND [2002] VSCA 192, [19]–[26] (Ormiston JA).
[5]Phillips v R [2012] VSCA 140, [68]–[69] (Redlich JA and Curtain AJA); Barbaro v R [2012] VSCA 288, [32] (Maxwell P, Harper JA and T Forrest AJA).
Additionally, apart from your evident concern for the circumstances in which you now find yourself, including your realisation that you will be separated from your children for many years to come, you have shown few signs of remorse.[6] Your burning of the deceased’s body and the content of the telephone calls which you made to your wife on the morning following the killing were the antithesis of contrition.
[6]R v Jabaltjari (1989) 64 NTR 1, 10; Sellen v R (1991) 57 A Crim R 313, 317; Barbaro v R [2012] VSCA 288, [36]–[37].
Admittedly, once you had been caught, you co-operated with police and gave a largely truthful account of what had happened. It is also to be observed that, in the report of Mr Patrick Newton, forensic and clinical psychologist, which was tendered in support of your plea in mitigation, he stated that, while you continue to stress the roles played by others in the death of the deceased, you consider that it was a ‘tragic accident’; that you are ‘deeply sorry that [the deceased’s] family had suffered his loss’; and that you ‘felt aghast to be to be involved in the death of another person’. There are statements to similar effect in some of the character references offered in support of your plea, including those of your sister Lily Cuca, long time friends, Ms Hili, Ms Golowka and Ms Paterson, your brother Ivka Budimir and your sister Marie Budimir, and also in the oral evidence given by Ms Freda Pace and Marie Budimir.
As against that, however, you chose not to give evidence in support of your plea in mitigation of penalty or thereby to expose your claim of remorse to the light of cross-examination; and, as the Court of Appeal recently observed in Pasquale Barbaro v R:[7]
… a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
[7][2012] VSCA 288, [38] (Maxwell P, Harper JA and T Forrest AJA).
Furthermore, the way in which your defence was conducted at trial – especially the vehement attack concerning peripheral matters which was waged on your wife in cross-examination[8] – left no doubt that you still regard her as the cause of the evil which has befallen you and that she alone is to blame.
[8]Which I take into account pursuant to s 5(2C) of the Sentencing Act 1991; R v RN [2002] VSCA 192, [23]–[25].
More recently, too, throughout the plea in mitigation of penalty, you maintained the stance that, although what you did may not be excusable, it should be understood as a consequence of depression and anxiety, with a consequent loss of behavioural controls and, as it were, to that extent should be forgiven.
Finally, on this aspect of the matter, there are Mr Newton’s following further observations that:
Mr Budimir’s mental state is characterised by continuing distress and dysfunction. He is swept by intense emotions and his mood is labile. He oscillates between states of deep unhappiness regarding the situation in which he finds himself and an equally strong resentment at those (especially his ex-wife) whom he perceives to be ultimately responsible for his misfortunes.
…
… Mr Budimir feels a deep sense of betrayal by others, he feels bitter about his fate, and he is likely to manifest impulsive acts of irritable acting-out towards others if challenged. …
…
The circumstances relating to Mr Budimir’s offending represent a catastrophic failure on his part to manage the conflict and problems within his marriage appropriately. ... Thus, even now, he remains convinced that he was acting to
protect his children and defend his rights, and he seemed genuinely perplexed that the jury’s verdict does not reflect this.
…
His insight into his offending is poor, and his understanding of the broader dynamics within his relationship and his interpersonal world more generally is unsophisticated.
…
Even in optimal circumstances, the protracted and multifaceted nature of the problems which Mr Budimir faces is such that his rehabilitation is likely to require long-term engagement and dedication. …
All things considered, I am satisfied that it will take many years in prison for you to appreciate the enormity of your crime and to accept the moral responsibility for its commission which you undoubtedly bear.
Need for specific deterrence
The prospect of you reoffending is also a matter of concern. It is true, as your counsel put it, that the killing stemmed from the breakdown of your marriage to the love of your life and that such a situation is unlikely to arise again. As the Crown submitted, however, it is also clear that you continue to harbour a deep sense of resentment towards Jana Budimir whom you blame for your predicament. There are also Mr Newton’s observations that you would benefit from a programme for violent offenders and that, although your inherent work ethic, intolerance of substance abuse and the level of family support which you currently enjoy would ordinarily bode well for recovery, in the context of the lengthy prison sentence which you now face your prognosis is considerably more guarded.
I recognise that, apart from the events which culminated in the killing, you have led a largely blameless and, in many respects, admirable life as a self-made small businessman and devoted husband and father. That is apparent from some of the evidence given at trial and from the character references which were tendered in support of your plea in mitigation. But, as against that, you have prior criminal convictions for burglary, criminal damage and theft, which date from a 1996 attempt forcibly to recover a bad debt, and also for the offences of false imprisonment and intentionally causing injury to which I have referred. Indeed, you killed the deceased while released on a suspended sentence for those offences of false imprisonment and intentionally causing injury. While your previous offences are in a different category altogether from the killing for which you are now to be sentenced, they illustrate that this is not the first occasion on which you have chosen to go after someone whom you conceive to have done you wrong and to punish them with criminal conduct.
In the result, I conclude that the sentence which I am to impose must provide for a significant measure of specific deterrence.
Mitigating circumstances
I accept that your mental state at the time of the killing was to some extent compromised by the effects of your wife’s infidelity, the consequent breakdown in your marriage and the resultant destruction of the family life which you valued greatly. The innate likelihood of that being so is supported by Mr Newton’s opinion that:
Mr Budimir is considered to be suffering from a ‘Chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct’. This diagnosis encapsulates my opinion that his symptoms are best understood as a prolonged failure on his part to adapt to changes in his life which were precipitated by the developments in his marriage. In response, Mr Budimir has experienced greater emotional distress than is typical for individuals in such a situation and has responded to this with problematic behaviours (of which the murder of Mr Moresco is the most extreme and dysfunctional example).
and that:
Mr Budimir’s offending represents a particularly pernicious breakdown of his behavioural controls in a situation of severe family stress. He ‘filtered’ his experiences through his rigid value system, and this coloured his judgment regarding the actions that were reasonable and justified to ‘defend his right’ and ‘protect’ his lifestyle’.
On that basis, I find that your capacity to make rational judgments at the time of the killing was to some extent affected and, to that extent, that the level of your moral culpability is reduced. But the reduction is not large. There is no longer much scope for the recognition of a reduction in moral culpability in crimes resulting from idiosyncratic (even if, in some quarters, still entrenched) psycho-social attitudes to the rights and roles of women. I am also not persuaded that your psychological condition, either at the time of the killing or now, is such as to engage any of the other considerations essayed in R v Verdins.[9] In particular, I do not accept that it was so significant as to reduce the need for general deterrence; or that the sentence which I am to impose will weigh significantly more heavily on you than on a man of undiminished mental health; or that there is a significant risk of imprisonment having a further adverse effect on the state of your mental health. In my view, neither Mr Newton’s opinion nor any of the other evidence before me goes anywhere near that far.[10]
[9](2007) 16 VR 269, 276 [32].
[10]See and compare Armour v R [2011] VSCA 376, [16]–[18].
It was submitted on your behalf that, because you suffer from hepatitis C, prison is likely to be more burdensome for you than for a man of ordinary physical health. Possibly, that is so but I am not persuaded of it on the balance of probabilities. There is no expert or other evidence to that effect and, although you have had hepatitis C for some years, you appear to have had no difficulty in carrying on your business or otherwise living life to the full up to the time of the killing.
It was further submitted on your behalf that, because you are constrained by Family Court orders not to have any contact with your children, even by way of correspondence, your individual circumstances are such as to warrant some further amelioration of penalty. The Crown opposed that submission but I accept it. This is not a case of family hardship of the kind considered by the Court of Appeal in Markovic v R,[11] in which exceptional circumstances must be demonstrated. It is rather a question of recognising the anguish which you will experience as a result of being unable to care for and contact your offspring. According to Markovic, that is something which I may properly take into account.[12]
[11](2010) 30 VR 589.
[12]Ibid [20].
Current sentencing practices
Finally, I have had regard to current sentencing practices in cases of murder, albeit recognising that, because of differences in facts and circumstances between cases, the guidance afforded by them is of essentially limited assistance.[13] The point is demonstrated in a practical sense in the Sentencing Counsel’s Sentencing Snapshot No 109 of May 2011, which was tendered by your counsel in support of your plea in mitigation. Such was the range of facts and circumstances that in the period 2005-6 to 2009-10, sentences of imprisonment for murder ranged between eight years’ imprisonment to life, with a median of 18 years’ imprisonment and non-parole periods of between six years and 33 years with a median of 15 years and three months.
[13]Hili v The Queen (2010) 242 CLR 520, 536–537 [53]–[55]; Kumova v R [2012] VSCA 212, [26]–[27] (Redlich and Osborn JJA).
Your counsel referred me in particular to a sentence for murder of 17 years and six months’ imprisonment with a non-parole period of 14 years and six months imposed by King J in R v Neacsu.[14] It followed a plea of guilty to murder. Reference was also made to Omer Bayram v R,[15] where the Court of Appeal resentenced a prisoner to 16 years and six months’ imprisonment with a non-parole period of 13 years and six months, following a plea of guilty to murder. Counsel also identified three New South Welsh cases which, like this one, involved a crime of passion arising out of the infidelity of one or other party to a marriage. In R v Hazairan Iskandar[16] the offender was sentenced to a minimum term of 17 years’ imprisonment after the jury had found him guilty of murder. In R v Munesh Goundar[17] the offender was sentenced to 10 years and eight months’ imprisonment with a non-parole period of eight years for manslaughter by reason of provocation. In R v Gabor Ziha,[18] the offender was sentenced to life imprisonment with a non-parole period of 18 years after he was found guilty of murder.
[14][2012] VSC 388.
[15][2012] VSCA 6.
[16][2012] NSWSC 1324.
[17][2010] NSWSC 1170.
[18][2008] NSWSC 145.
Each of those cases is of assistance inasmuch as it provides some indication as to the range of possible sentences. But they go no further than that. Ultimately, I am left to balance the competing considerations to which I have referred and come to my own conclusion.
In the result, I have determined that you should be sentenced to 18 years’ imprisonment with a non-parole period of 16 years.
Sentence and orders
Mark Budimir, I convict you of the murder of Dino Moresco. For the reasons I have given, I sentence you therefor to 18 years’ imprisonment with a non-parole period of 16 years. I declare that the number of days already served under the sentence is [524] days, including this day, and I direct that the fact of the declaration and its details be entered in the records of the court. I shall also make an order under s 464ZFB of the Crimes Act 1958 for the preservation of forensic samples and an order under s 78(1) of the Confiscation Act 1997 for disposal of items found at the crime scene.
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