R v Cacic
[2002] VSC 31
•26 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1415 of 2000
| THE QUEEN |
| v |
| IVAN CACIC |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2001 | |
DATE OF SENTENCE: | 26 February 2002 | |
CASE MAY BE CITED AS: | R v Ivan Cacic | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 31 | |
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Criminal Law – Sentencing – Manslaughter – Wielding pool cue as a weapon in a hotel causing bartender brain injury and death – Prisoner aged 66 with no prior convictions – 4 years imprisonment – 1 year 9 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr. G. Steward | Victoria Legal Aid |
HIS HONOUR:
You have been found guilty by a jury of the manslaughter of Desmond Hallinan on 3 September 1999. As at that date, Desmond Hallinan had been for some years a barman at the Royal Hotel in Footscray. For many years you had been a patron at that hotel. Also a regular patron at the hotel was a Branko Bosniak. From time to time, you and Bosniak had had arguments at the hotel. Indeed, on Friday 27 August 1999, just a week before 3 September, there had been such an argument.
During the afternoon on 3 September 1999, you and Bosniak were again at the hotel. At that stage, the two of you were friendly. After some hours of drinking your perspective changed. At about 9 p.m., you became involved in another argument with Bosniak. You had a pool cue in your hand. Desmond Hallinan jumped over the bar and moved towards you and Bosniak. Desmond Hallinan was obviously trying to settle things down. He gestured with his hands to indicate that you and Bosniak should stand apart. You swung the cue towards Desmond Hallinan. You moved the cue at him. The end of the cue caught him in his left eye. You did not intend to use the cue to strike a fatal blow or even to cause serious injury. But to act as you did was to act unlawfully and dangerously. The cue went through the eye socket into Desmond Hallinan’s brain. A surgeon tried to save him. He was to say that Desmond Hallinan was unlucky. The likelihood of the path of the cue causing significant injuries in the brain was small but it had been realised. Desmond Hallinan died of brain injuries eleven days later.
I have read carefully the three victim impact statements, prepared by three of the six siblings of Desmond Hallinan. There is reference in them to his eleven year old daughter, and to the circumstance that his death was shortly preceded by the death of his mother and shortly followed by the death of his father. The contents of the statements are moving. They and the reports which accompanied them have brought home the magnitude of the short and long term traumatic consequences, emotionally, financially and in other ways arising from the untimely death of a close family member in such tragic circumstances.
I turn to your personal circumstances. You were born in January 1936. You were raised in Croatia. You were one of five brothers. Three of them are still alive and living in Europe. You were educated beyond secondary level. You qualified as a textile technician. In Croatia, you worked as council clerk and school supervisor for about 8 years. In 1969, you moved to Australia to avoid the communist regime in your homeland. Here you worked in factories and mines and on the Dartmoor Dam. In 1985, you were classified unfit for work. Since then, you have been on a disability pension. You have never married. You have lived alone for most of the last thirty years. You developed interests in chess, in the piano accordion and the violin, and in some sports and a little gambling. Your social life was limited. You commonly frequented hotels.
I have read with attention to detail the reports of Dr Barry-Walsh and Mr Healey that were tendered on your plea. Dr Barry-Walsh has referred to your generally poor health. You have problems with hearing, memory, headaches, high blood pressure and chest and back pain. Dr Barry-Walsh also noted cognitive impairment consistent with what Mr Healey recorded as to your poor performance on psychological testing, particularly on verbal tasks. I have noted their concerns as to whether they were able to get from you an accurate history. It is regrettable that, as was noted, they were not able to gain access to a friend or other contact to provide more reliable objective information. You told Dr Barry-Walsh and Mr Healey that you were not an alcoholic or a heavy drinker. Mr Healey considered, and I am disposed to accept, that you have underplayed and rationalised a serious alcohol abuse problem. Both experts have referred to indications of your suffering from a paranoid delusional state. In addition to his concerns as to your physical health, Dr Barry-Walsh has concerns as to the level of your anxiety and depression, such that there is a need for continuing treatment.
As appears from the matters I have just noted, there are clearly a significant number of mitigatory considerations which I must take into account in assessing the appropriate punishment to impose on you. I also note that you have no prior convictions. That is a matter of particular significance given your age. That taken with your background and work record are such as to indicate both that special deterrence is a matter of little concern, and that you are an excellent prospect for rehabilitation. There are some indications of remorse. I also take account in your favour that there were delays in the proceedings against you being heard that were not in any way due to your fault.
Mr Steward urged me, on your behalf to impose only a short period of imprisonment. However, I am satisfied that there must be a significant period. I cannot accept that I should focus only on the second or so of action when the tip of the pool cue took the path into the brain of the deceased which Dr Rosenfeld was to describe as such an unlikely possibility. You chose to spend many hours drinking in the hotel on the day in question. That drinking could only have increased your disposition to become aggressive towards Bosniak. You chose to engage in an argument at a time when you held a pool cue in your hand. You ought to have known from experience that action would have to be taken by Desmond Hallinan to break up a potential fight, as it was. You then chose to handle the pool cue like a weapon when he came towards you. You made those choices. You must suffer the consequences of your choices. Hotels are a desirable means of providing social contact. Pool tables enhance the enjoyment of the hotels by patrons who behave responsibly. The tables need cues. Handled inappropriately, a pool cue can be a dangerous weapon. A pool cue can injure. A pool cue can also kill, as the death of Desmond Hallinan has tragically shown. A person who chooses to use a pool cue as a weapon, when its use causes death must expect to be punished appropriately. I think that right-minded members of the community would expect you to be punished with a significant rather than a nominal period in prison.
I declare that you have served 107 days in pre-sentence detention. I direct that that be entered in the court records. I impose a sentence of imprisonment of 4 years. I fix a non-parole period of 1 year and 9 months.
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