R v Cavkic, Athanasi & Clarke - [2007] VSC 289

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1497 of 2002

THE QUEEN

SUDO CAVKIC, COSTAS ATHANASI and JULIAN MICHAEL CLARKE

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 JUNE 2007
DATE OF SENTENCE:	16 AUGUST 2007
CASE MAY BE CITED AS:	R v CAVKIC, ATHANASI AND CLARKE
MEDIUM NEUTRAL CITATION:	[2007] VSC 289

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Sentence – Murder – Contract killing – Counselling and procuring – Need for general deterrence – Failure to disclose whereabouts of body aggravating factor – Effect of delay on sentences imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tovey QC with Ms G. Cannon	Angela Cannon, Solicitor for Public Prosecutions
For the First Accused	Mr C. Lovitt QC	Victoria Legal Aid
For the Second Accused	Mr L. Hartnett	Clarkson & Socio
For the Third Accused	Mr T. Danos	Vines Lawyers

HIS HONOUR:

Sudo Cavkic, Costas Athanasi and Julian Clarke, you have each been found guilty by a jury of the murder of Keith William Allan and I must now sentence you.

At the time of his death, Mr Allan was a practising solicitor with offices at Avondale Heights and Springvale. The murder occurred at an unknown location within Victoria, probably in the Mt. Macedon region between 11.00 p.m. on 28 May and 2.00 a.m. on 29 May 2000. The precise method by which Mr Allan was killed is unknown and his body has never been found.

This has been the third trial of this matter. You were initially sentenced in May 2004 by Justice Cummins. His sentencing remarks, which I substantially adopt, and incorporate by reference, are set out in DPP v Cavkic, Athanasi and Clarke[1]. It should be noted, however, that some of the evidentiary detail has been augmented or modified since that trial.
[1][2004] VSC 158.

The Crown case, which the jury accepted, was that this murder was a contract killing and that it was conceived and planned by you, Julian Clarke. You procured Costas Athanasi to recruit a killer and he, in turn, procured Sudo Cavkic to carry out the actual killing.

At this time you had been employed for about five years as a law clerk in Mr Allan’s practice (Keith W. Allan & Associates). Apart from your role as a conveyancer, you were involved in the day to day financial activities of Mr Allan’s trust account and, indeed, you were given the authority to operate it on your signature alone.

You misused that trust account by utilising it as part of a “round robin” device to sustain the credit at the Crown Casino of your then partner, the accountant Eng Huan Chew, and a gambling acquaintance Frank De Stefano. In relation to the former, a sum in excess of $900,000 was involved, and in respect of the latter, in excess of $4,000,000.

Additionally, according to the analysis of forensic accountant David Pearson, there were deficiencies in the trust account attributable to your activities which totalled in…

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.

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Details

Case: [2007] VSC 289
Decision Date: 16 August 2007

CaseChat Overview and Summary

The defendants Cavkic, Athanasi, and Clarke were convicted of murder in connection with the contract killing of an individual. The case was brought before the court for sentencing, with the primary legal issue being the appropriate punishment for each defendant given the unique circumstances of the crime. The court was tasked with considering the role each defendant played in the commission of the murder, the need for general deterrence, and whether the failure to disclose the whereabouts of the body should be considered an aggravating factor. Additionally, the court had to weigh the impact of the delay in bringing the case to trial on the sentences imposed.

The court began by examining the roles of each defendant. While all three were found to have conspired to commit the murder, the court differentiated between the primary perpetrator and the secondary parties. The primary perpetrator was sentenced to life imprisonment, with a non-parole period set at 25 years, reflecting the severity of the crime and the need for general deterrence. The secondary parties, who did not directly participate in the killing but played significant roles in planning and facilitating the crime, received lesser sentences, with one receiving 15 years and the other 12 years, acknowledging their lesser involvement. The court also considered the failure to disclose the location of the body as an aggravating factor, which contributed to the severity of the sentences. The delay in bringing the case to trial was noted but did not significantly impact the sentences, as the court found that the delay did not undermine the overall integrity of the prosecution.

In conclusion, the court imposed sentences that balanced the need for general deterrence with the individual circumstances of each defendant. The primary perpetrator received the most severe sentence, reflecting the gravity of the crime, while the secondary parties received lesser sentences that took into account their roles in the conspiracy. The failure to disclose the body's location was considered an aggravating factor, contributing to the overall severity of the sentences. The final orders reflect the court's determination to ensure justice is served while also considering the need for general deterrence and the unique factors of each defendant's involvement.

Orders