JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 7, 8, 11, 12, 13, 14, 15, 18, 19 February and 27 March 2013
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Budimir

Details

AGLC: R v Budimir [2013] VSC 149
Case: [2013] VSC 149
Decision Date: 5 April 2013

CaseChat Overview and Summary

In the case of R v Budimir, the accused was convicted of the murder of his estranged wife’s lover, a crime committed through a brutal physical assault that led to the victim’s death. The accused also attempted to incinerate the body, though only partially successfully, and fled the scene, stealing the victim's car and leaving the state. The case was heard in the Supreme Court of Victoria. The primary legal issue for the court was to determine the appropriate sentence for the accused, taking into account both the gravity of the crime and various mitigating factors.

The court considered several legal precedents, including Pasquale Barbaro v R and Markovic v R, to weigh the aggravating and mitigating factors in sentencing. The aggravating factors included the brutal nature of the crime, the attempt to dispose of the evidence, and the accused's flight from the scene. Mitigating factors included limited remorse, the accused's problematic prospects for rehabilitation, and the hardship caused by family court orders that precluded him from having any contact with his children. After careful deliberation, the court concluded that the sentence should reflect both the severity of the crime and the mitigating circumstances.

The court found that an 18-year imprisonment term with a non-parole period of 16 years was appropriate. This sentence balanced the need for punishment and deterrence with the mitigating factors presented. The court noted that the sentence must be proportionate to the crime, ensuring that it serves the dual purposes of punishment and deterrence while considering the personal circumstances of the accused. The decision underscored the importance of a comprehensive assessment of both aggravating and mitigating factors in sentencing for serious offences.

Orders