R v Butorac
[2016] VSC 371
•18 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0010
| THE QUEEN | |
| v | |
| JOHN BUTORAC | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2016 |
DATE OF SENTENCE: | 18 November 2016 |
CASE MAY BE CITED AS: | R v Butorac |
MEDIUM NEUTRAL CITATION: | [2016] VSC 371 |
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CRIMINAL LAW – Manslaughter – Attempting to pervert the course of justice – Pleas of guilty – Remorse not evident – Utilitarian benefit – Disposal of body by burning – Concealment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC with Mr S. Ginsbourg | The Office of Public Prosecutions |
| For the Accused | Mr D Hallowes | Emma Turnbull Lawyers |
HIS HONOUR:
John Butorac, on 16 September 2016, you pleaded guilty to one count of manslaughter, being that you killed the deceased man, Keenan Balikel, on Thursday 30 October 2014. You also pleaded guilty to one charge of attempting to pervert the course of justice.
The maximum penalty for manslaughter is 20 years’ imprisonment. The maximum penalty for attempting to pervert the course of justice is 25 years’ imprisonment.
It is now my responsibility to sentence you for these two offences.
Circumstances of offending
The deceased man was 42 years of age and on a disability pension at the time of his death. He supplemented his income by buying, restoring and selling motor vehicles. His wife had just given birth to their fifth child.
You operated a business known as Custom Classic Cars which was a car restoration business. Prior to these incidents you were engaged by the deceased to rebuild a 1967 Ford Mustang from a shell which he had purchased. This was a significant restoration costing a large amount of money. At the time that you killed the deceased the project had not been completed, but you were in contact with each other every day.
On 30 October 2014, you and the deceased were together during the morning and early afternoon. At around 11.40am, the deceased drove you to a Liberty service station in North Melbourne in a white Mercedes van where fuel was purchased. You then drove together to a timber yard in North Sunshine at around midday. The purpose of that trip was to enable the deceased to order some building material for a restaurant at Nelson Place in Williamstown, which he was in the process of renovating.
You and the deceased man next went to a pasta restaurant in Tullamarine and had lunch together.
You operated a factory which you rented at Tullamarine and from where your business was run. Between 3.15pm and 4.30pm you and the deceased were at that factory. It appears there was an argument between you during the course of which you assaulted the deceased man and struck him with a crow bar to the back of his head and chest, fracturing his skull and ribs. You also struck him in the front of the neck. The force of that blow was such that his airway was crushed and caused his death. Those facts are at the basis of charge 1 being a charge of manslaughter. The motive for the attack remains unexplained.
After killing him you then wrapped the deceased’s body in a car cover and hid it in the back corner of the factory between two cars.
Later in the afternoon, at about 4.30pm, you rang the phone number of the deceased’s mobile phone and then hung up without leaving any message. This was the beginning of several steps you took to try to distance yourself from what you had done.
Ante Bacak is a 44-year-old carpenter, who had known you for 20 years and had become your friend. At about 6.00pm on 30 October 2014, he visited your factory in Tullamarine and you and he went and had coffee. Bacak noticed that you were stressed, shaky and agitated but did not know why. You and Bacak then drove to Melton so that you could organise some cool room panels for your shed at home and then returned to Tullamarine. Bacak then left you at your factory and drove to his home at Keilor Downs, arriving at about 9.00pm.
Shortly after 9.00pm, you again dialled the deceased man’s mobile phone number. At 9.25pm, you sent a text message to the deceased man’s phone, which read ‘I’m heading off, key is on the back wheel of Jeep, great couple of hours’.
At 9.30pm, you left the factory at Tullamarine and drove a white Holden Rodeo to Bacak’s home, arriving between 9.30pm and 10.00pm, and asked him whether he would be willing to get rid of a body. You then said to Bacak, ‘I did it, I actually did it…I killed Kenny’. You then asked Bacak to help you get rid of the deceased man’s body and, when Bacak initially refused, you became agitated and insistent, and Bacak ultimately and reluctantly agreed to help.
At about 10.30pm, Bacak drove you to the Tullamarine factory and, during the journey, you received a phone call from the wife of the deceased asking where he was. You told her that he had left a few hours ago to have a drink with his friends.
On arrival at the factory, you showed Bacak where the body of the deceased was and the body was then taken to a vehicle and placed in the boot. Added to the luggage in the car was a 20 litre drum of thinners and a plastic jerry can full of petrol.
During this time at the factory, you told Bacak that you had ‘cracked’ the deceased over the head with a crow bar. Bacak could recall that you gave him no reason for what you had done but he also recalled that you told him that in the preceding days or weeks the deceased had threatened you with a gun demanding money.
At all events, the Peugeot vehicle with the body of the deceased in it, was driven by you to the Bulla area. Bacak followed in his vehicle. During the drive, you poured accelerant from one of the containers around inside the car and then stopped near a bridge on the Bulla to Diggers Rest Road on a hill. You the lit the car with a lighter, as you pushed the car to start it rolling. You also wore a tradie’s glove, which caught fire after the vehicle had ignited. It rolled down the hill and stopped against a barricade.
You then got into Bacak’s car and drove away from the scene, by which time the Peugeot was fully engulfed in flames. You returned to your factory. You checked to make sure that there was no evidence left behind of blood or anything else that might connect you to the death of the deceased. You changed your clothing and then Bacak drove you to an address in Tullamarine and, I assume during the trip, you threw your clothes out of the window of the vehicle. Bacak then drove back to his house where you had left your white Holden Rodeo which you got into and drove away.
Meanwhile in the early hours of the morning of 31 October 2014, the vehicle was seen to be on fire and emergency services were called. The body of a deceased was located in the boot and was badly burnt.
Upon a post-mortem being conducted, extensive fire damage to the body of the deceased was found and three main sites of injury were located. First, Dr Ranson and the pathologist found that the front of the deceased’s neck, the thyroid and the cricoid cartilages were fractured and distorted resulting in a collapse of the airway. Dr Ranson expressed the opinion that considerable force had been used in causing the injury. Dr Ranson also located skull fractures at the back of the head and injury to the lower ribs on the thoracic cage.
From 31 October 2014 onwards, you spoke to the police a number of times. During these conversations your themes were that you were not involved in Mr Balikel’s death but there were people who might well have been. You told them that the deceased, though a friend, may have been a drug dealer and you claimed that he had financial advantage over you.
You made a written statement to the police in relation to your dealings with the deceased, saying that his Ford Mustang was worth at least $150,000 and described the relationship under which the car was to be worked on. You told them that you and Balikel saw each other very frequently and that he had paid you $35,000 to work on the Mustang but you had returned the money because you had a mental breakdown.
In that statement, you also set out in detail your movements of the day the deceased was killed by you, saying that after you and he had returned to the Tullamarine factory he received some telephone calls and referred to the pressure that you claimed the deceased appeared to be under. You said he had left the factory in some kind of BMW motor vehicle and you had not seen him since. You also gave an account of your contact with Mr Bacak and when you had last seen the Peugeot motor vehicle.
On 27 January 2015 there was publicity about the case with the police releasing CCTV footage showing the Peugeot and a white Holden Rodeo and seeking information about the Holden. The next day you contacted the police and arranged to meet them. In the conversation that followed you claimed to have been approached by an unknown man demanding to know the whereabouts of the vehicles that had been in Mr Belikel’s possession. This was false and designed to divert attention for the killing of Mr Belikel away from you. When you saw the CCTV of the two vehicles you identified the Holden Rodeo as Bacak’s and said that vehicle had been parked at your factory overnight and collected in the morning. You then gave an account of being at Bacak’s house, watching television and falling asleep and then driving Bacak to the factory the next morning and watching him start his car. After finishing the conversation with police you then rang Bacak in an intercepted call and told him that when the police contacted him to stick to the account you had agreed on.
Charge 2 on the indictment is comprised by your disposal of the body of the deceased and colluding with Bacak to provide false statements to the police.
On 30 January 2015, Ante Bacak was arrested and, after attempting to stick to the agreed story, ultimately confessed to his involvement in assisting you to dispose of the deceased’s body and implicated you by describing what you had told him. He made a written statement, later pleaded guilty before me to the offence of assist offender and was sentenced for that offence.
On the same day that Bacak confessed to his involvement, you were further interviewed by police and you maintained the version of events that you had given originally. You also denied that you and Bacak had concocted a story about leaving Bacak’s car at the factory overnight and you denied that you told Bacak you had killed the deceased or that you and he had disposed of his body.
This was a violent and extremely serious killing by you, albeit apparently spontaneous. The reason why you did what you did remains a mystery but obviously both you and the community generally must understand that such violent and tragic conduct as yours will be met with serious and substantial punishment. Specific and general deterrence are significant sentencing factors and your conduct is to be denounced for its violence and tragic consequences.
Victim Impact Statements
In this matter, I have received a number of victim impact statements. They have come from Mihriban Balikel, who is the wife of the deceased. Also, I have received a victim impact statement from Rabia Menekse, who is the older sister of Keenan Balikel. Finally, I have received a victim impact statement from Mehmet Balikel, who is the father of the deceased man. Those victim impact statements were read to the Court by the prosecutor and they each set out in detail the anguish that has been caused to those people by the death of Keenan Balikel. Each of these people will be affected by the death of the deceased and the emotional consequences of that involves for the rest of their lives. It will be difficult for each of them to recover from the consequences of what you have done. Mr Belikel’s family have lost a much loved member of the family. It is sad indeed that this tragic event occurred shortly after the birth of the deceased man’s fifth child. I have paid careful attention to these statements and taken them into account in fixing the sentence that I will impose on you.
I am conscious of the fact and regret that these three members of Mr Belikel’s family have found the court proceedings arduous and stressful. That is unfortunately often the case. Hopefully, from here on their lives can achieve a higher level of normality and stability than has been the case to date.
Personal circumstances and prospects of rehabilitation
You are now aged 50 years. You were born in Australia to Croatian parents who came here in 1964. Your father is alive aged 80 years. Your mother died in January 2016 and though in custody you were permitted to attend her funeral. They were both hardworking people. You are supported by your family and by several other people who in written documents have attested to their experience of you and your good character. That material makes your very serious offences in this case all the more puzzling. I accept though that your conduct is out of character with the rest of your life. It is a tragedy for you that you have ruined a successful life and career by this senseless act of violence.
You have prior convictions of little consequence for this matter. They were dishonesty matters that were dealt with in the Magistrates Court in 1996 and 1997 and did not involve custodial sentences. You have no prior convictions for offences of violence.
Your upbringing was in Altona and your secondary education finished at year 11. You then became an apprentice fitter and turner, then working at Toyota for 9 years and then, after teaching yourself to be a metal shaper, starting businesses culminating with the business Custom Classic Cars which you were running at the time of these offences. The restoration of motor vehicles was both your career and your passion. You developed a specialty which was obviously in demand.
You have no issues concerned with alcohol or drugs; indeed your counsel has told me that you do not drink at all. There is no material to indicate any problems with your mental state and so the mystery as to why this occurred remains.
Once in custody for these matters, you have been very usefully employed at the Metropolitan Remand Centre in the metal shop. You are involved in repairing damage to equipment in the gaol as well as building trailers and things of that kind. You are also a peer prisoner which is a position of some trust. I am told that after you have been sentenced you may well remain at the MRC for some time because of the talents that you have to offer.
Given your lack of relevant prior convictions, your history and your talents as a tradesman, I would accept Mr Hallowes’ submission that your prospects for rehabilitation are good. Upon your release, you plan to resume your automotive career as best you can.
Plea of guilty and remorse
As I have already indicated, you pleaded guilty to the two charges in the indictment on 16 September 2016. On any view that was a plea of guilty entered late in the process. You were on the verge of standing trial on the charge of murder. Until then, I had been informed on your behalf that the issue in the trial would the identity of the person who killed Mr Belikel. Implicit in that position was that it was not you.
Your plea of guilty has a utilitarian benefit. The community has been saved the time and expense of a trial and, importantly, Mr Belikel’s family has also been spared the upset and trauma of having to go through that process.
On the other hand, your plea of guilty is not a demonstration of your remorse for your offending. As your counsel accepted during the plea, there is no evidentiary basis on which I could conclude you are remorseful and I do not do so.
Conclusion
On the charge of manslaughter you will sentenced to be imprisoned for a period of nine years. On the charge of attempting to pervert the course of justice you will be sentenced to be imprisoned for five years. I direct that three years of the sentence on that second charge be served cumulatively with the sentence on the charge of manslaughter. That results in a total effective sentence of 12 years’ imprisonment. I direct that you serve a period of 8 years and 6 months before you are eligible to apply for release on parole.
I declare that your pre-sentence detention is a period of 658 days not including this day and direct that be entered in the records of the Court and reckoned as time already served pursuant to s.18(1) of the Sentencing Act 1991.
I also declare that pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty to these offences, the total effective sentence that I would have imposed would have been 14 years imprisonment with a minimum period before being eligible to apply for release on parole of 11 years.
I have already made the disposal orders sought by the prosecutor.
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