R v Cavkic, Athanasi & Clarke
[2007] VSC 289
•16 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1497 of 2002
| THE QUEEN |
| v |
| 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 the order of between $420,000 to $560,000 depending on the assumptions and allowances made in this analysis.[2]
[2]See Exhibit 67.
You used the money to finance your lifestyle which included gambling at the Crown Casino.
It is clear from the evidence that Keith Allan was a poor financial manager and his own oversight and use of the trust account, for which he bore ultimate responsibility, left much to be desired. However, given the state of the trust account ledgers, it is impossible to reach a concluded view on the propriety or otherwise of his own trust account activities.
What the evidence did reveal was that Mr Allan was concerned about your role in the office. In a letter to you written in about September 1999, he complained about your lack of assistance in addressing office problems and expressed the view that if you had been deliberately trying to destroy the office, you could not have done a better job. He gave examples of your perceived failure. Mr Allan concluded that letter with the words: “I know I have stuffed up my life, but if I got some help it could have been possibly saved. I don’t really know what to say next except good-bye.”
By November 1999 the legal practice was coming under scrutiny from Victorian Lawyers RPA Ltd (being the Law Institute of Victoria) and the parlous state of the trust ledgers was revealed. You were required by the Law Institute’s inspector, Ms Marie Ryan, to reconstruct these ledgers. However, you failed to perform this task and proffered various untenable excuses as to why you did not do so.
Ms Ryan visited the office on three occasions, the last being in late March 2000. In a subsequent letter dated 19 March, a number of specific documents relating to the trust account were requested, together with files relating to certain office payments. This material was to be reviewed on 5 June 2000 and it was clear to you that the net was closing in on your illegal activities. Accordingly, you conceived a plan of having Mr Allan killed in the hope of covering up your depredation of his trust account, foisting the responsibility for the deficiencies in that account upon the dead solicitor.
In order to carry out that scheme, you recruited Costas Athanasi to arrange for the engaging of the killer. His participation was financed through cheques written by you on the trust account purporting to be repayments of a personal loan of $50,000 to Keith Allan. A false file was created for this purpose. In fact, payments to Mr Athanasi, or on his behalf, made on 12 April and 1, 12 and 19 May, totalled $93,000.
Matters came to a head when, in the week commencing Monday 22 May 2000, a trust account cheque required for a conveyancing settlement initially bounced and, by the Friday, it appeared that the necessary funds for two further settlements on the following Monday would not be available. At lunch on that Friday (26 May) Keith Allan informed a number of staff members that the firm was in trouble and that he could go to gaol. Although not present at that conversation, you must have been well aware of the financial situation. It was in these circumstances that your plan to kill Keith Allan was activated.
As part of that plan you constructed a letter on your office computer. The letter, which was written only hours before Keith Allan’s death, included the following:
“Keith,
It is with great reluctance that I write this letter.
I cannot however go on with the charade that you have demanded of me.
Keith, I like you very much and there is nothing that I would not do to save your practice and the jobs of [the staff] and myself. I feel that this has not been better illustrated than my complicity in covering your tracks and the sham of trying to delay the investigation by the Law Institute these past eight months.
It cannot go on any longer.
Unless you have adequate funds in trust to trade and by that I mean to cover all trust balances by 9.30 a.m. Monday 29 May 2000 I will have no alternative to report the matter to the Law Institute unless you have already done so.
Please do not do anything rash. Rather stand firm as the investigation by the LIV may not hold the horrors you fear.
…
Lastly Keith you have indicated to all and sundry your preparedness to take your own life. Put this thought out of reach Keith.”
The purpose of this letter was to promote, in the minds of investigating police, the idea that Keith Allan had committed suicide impelled by the shame of his own actions in plundering his trust account. It was devious and despicable conduct, but quite consistent with a person prepared to be the architect of a contract killing. It might have succeeded but for the subsequent events in Ayr Street, Laverton, to which I shall turn shortly.
You arranged to meet Keith Allan at the Avondale Heights office on the evening of 28 May 2000. He appeared at about 9.30 p.m. (minutes after you had finished typing the letter). Later, at about 9.55 p.m., you were depicted on a security camera in Mr Allan’s presence at a Quix service station in Keilor East. This was the last time Keith Allan was seen alive. Within minutes of that time you were in telephone contact with Mr Athanasi. Four minutes later Mr Athanasi was in contact with Mr Cavkic and there was consistent contact between Messrs Cavkic and Athanasi in the subsequent four hour period during which Keith Allan was murdered. I should add that you also attempted to contact Mr Athanasi the following morning.
There was evidence before the jury as to your conversations on 29 May with an employee of the legal firm, Adele Hancock, and the deceased’s brother, Lyle Allan, from which the jury could have inferred your knowledge that Keith Allan would not be reappearing. Additionally, there were lies told by you to the investigating police, including those as to the nature of the money you paid to, and on behalf of, Mr Athanasi. Finally, there was your conduct in attempting to contact Athanasi on 19 and 20 February 2002 after Cavkic had been charged with murder. These pieces of evidence were capable of demonstrating your consciousness of your own guilt of the involvement in the murder of Keith Allan.
In your case, Mr Athanasi, the Crown contention, which the jury accepted, was that you arranged for your friend Sudo Cavkic to perpetrate the killing. In my view the jury would have been satisfied that the Russian Tokarev self-loading pistol, together with a number of cartridges and the shoulder holster found in the possession of Mr Cavkic after his interception on 29 May, were supplied by you for his use in this enterprise. The jury would also have regarded as significant the circumstances that, at 9.32 a.m. on 28 May, you were attempting to call Julian Clarke from the Mt. Macedon area and, at 9.10 p.m. you were seeking to ring Sudo Cavkic from the same location. Subsequently, during the period in which the killing occurred, you were in frequent telephonic contact with Mr Cavkic who rang you on a number of occasions from the Mt. Macedon area. It was no coincidence that later that night, when Mr Cavkic telephoned you because of problems with the hand brake on the victim’s Mercedes vehicle, you attended the scene in Ayr Street to render assistance. As with Mr Clarke, your conduct on 19 and 20 February 2002, following the arrest of your friend Sudo Cavkic, demonstrated your awareness of your guilt of this murder.
Your motive for participating in this murder as the recruiter of the killer, was simply for money. It seems likely that at least some of that money was used to service your gambling activities.
On the evidence before this Court, I must proceed on the basis that your participation extended no further than the matters I have set out.
The jury found, Mr Cavkic, that you were the killer. It was a sheer quirk of fate that you were intercepted by local police (Senior Constable Michael Strongman and Senior Constable Travis McCarthy) at about 2.20 a.m. in Ayr Street, Laverton. At that time you were the sole occupant of the deceased’s motor vehicle. On the back seat of that vehicle was a spade to which dirt was adhering. Either on the back seat or in the boot of the vehicle – there was a dispute about this matter – was a hoe. It was similarly encrusted with soil. In the passenger floorwell of the vehicle was a green plastic garbage bag inside which were a number of Keith Allan’s possessions. These included a camera, binoculars, mobile phone, hair brush and spectacles. A number of internal globes and lenses had been removed from the vehicle and some of these were also found in the garbage bag. Additionally, between the driver’s seat and the console, police located the deceased’s wallet containing money, his driver’s licence, credit cards and an ignition key.
Behind the front passenger seat was a five litre petrol can containing approximately 100 millilitres of petrol. When searched, you were in possession of a cigarette lighter. The Crown did not assert that the petrol was to be used to set fire to the deceased’s vehicle. It remains an open question as to whether it had already been used in the disposal of Mr Allan’s body.
Upon your interception you contrived to mislead the police about your situation. You gave a false name and address and untruthfully claimed to have borrowed the car from your friend Keith, without his knowledge, after having encountered him on a pub crawl at the Taylor Lakes Hotel.
Upon searching your person, the police observed that you were wearing an empty shoulder holster. You did not reveal that you also had a pistol hidden in your trousers. This was discovered when you were later taken to the Williamstown Police Station.
When questioned by Detective Senior Sergeant Lucio Rovis, you elaborated upon your earlier lies. You repeated the story of the pub crawl and meeting Keith Allan at the Taylors Lakes Hotel, but you now claimed that he had lent you his car to pick up a package, which contained the gun, in the car park near where you were intercepted. You asserted that Keith was happy for you to return his vehicle and the gun whenever you next happened to bump into him.
In what may be regarded as masterly understatement, Mr Rovis commented that some of what you had told him seemed “a bit far-fetched”.
The evidence was conclusive that Keith Allan was a life long teetotaller and that he never lent his Mercedes, which was his pride and joy, to anyone. Moreover, extensive security video footage from the Taylors Lakes Hotel demonstrated that neither you nor Keith Allan were present on that evening. No doubt the jury regarded these lies as demonstrating your consciousness of your own guilt.
Perhaps the most damning of the combination of circumstantial factors which inextricably link you to this crime, was the DNA analysis which demonstrated beyond all doubt that portions of your right shoe, right sock, and right trouser leg, were stained with Keith Allan’s blood.
Although the case against each of you was a circumstantial one, it was, in my view, overwhelming.
The police investigation was protracted, at least to some extent, by the lack of a body and the need to address the innuendo that, because of the state of the Keith W. Allan & Associates trust account, Mr Allan may have absconded or committed suicide. Accordingly, there was a delay in bringing the charge of murder. In your case, Mr Cavkic, this occurred in February 2002, in yours, Mr Clarke, October 2002, and in your case, Mr Athanasi, November of that year.
In the three trials which have been completed, none of you have chosen to give evidence. Rather, each of you have put the Crown to its proof to satisfy the jury beyond reasonable doubt that Keith Allan was dead and that each of you was criminally responsible for his death. You are, of course, not to be punished for exercising this legal right. On the other hand, you do not receive the discount which adheres to a plea of guilty. Nor do you obtain the benefit of any expression of remorse.
This was a contract killing devised by you, Julian Clarke, to silence Keith Allan and transfer the blame for your own dishonesty, so far as possible, onto the dead solicitor. It involved not only funding this homicide, but also creating false documentation in an effort to divert the focus of the police investigation. In your cases, Mr Athanasi and Mr Cavkic, you were prepared to arrange for and carry out, respectively, the premeditated and cold-blooded killing of another human being purely for financial reward. I agree with the comment of Justice Cummins that this killing falls into the worst category of murder.
If general deterrence has any role to play in sentencing for the offence of murder, it must be in cases of contract killing and cases where the killing is premeditated and planned, whether for financial reward, or to escape detection for other criminal activity. This is such a case. Moreover, the facts and circumstances surrounding this offence bring into play, to some extent, the principle of specific deterrence.
Further, in the present case, there is another aggravating factor. It is now more than seven years since Keith Allan died. None of you have availed yourself of the opportunity (which most recently has existed since 14 May 2007) to reveal the whereabouts of Keith Allan’s body. Your silence has necessarily exacerbated the distress of Keith Allan’s friends and loved ones. As Justice Cummins eloquently expressed the situation:
“From Monday 29 May 2000, day after day, week after week, year after year, the loved ones of the deceased by not only your actions but your silence have suffered the cruel anguish first of hoping their loved one was alive, then not knowing but hoping against hope, then sinking into acceptance of his death, and yet never, even now, being able to give him the dignity of a farewell and a final resting place.”
In relation to each of you there are personal matters which are relevant to the sentence to be imposed. However, before I refer to them, I want to say something about the deceased. Again I can do no better than quote the comments of Justice Cummins:
“Mr Keith Allan was born on 19 November 1946 and was 53 years of age at the time of his death. He was the younger of two children. He was educated at Northcote High School and then the University of Melbourne where he obtained the degree of Bachelor of Laws. He was admitted to legal practice on 1 April 1971. He commenced practise as a sole practitioner under the name Keith W. Allan & Associates in Avondale Heights on 16 July 1973. In 1992 he also commenced legal practice in Springvale, although this was always secondary to the Avondale Heights practice. He was a bachelor. He was devoted to his parents. He and his older brother, Lyle, lived together in Northcote next door to their parents’ home. Their father died in 1993. Their mother continued to reside in the parental home. The two men were devoted to their mother and cared for her with attention, love and affection. At the time of Keith’s murder, Lyle was a retired school teacher pursuing studies towards a Doctorate of Philosophy. Keith Allan was a plain man who led a modest life. He had a long-term relationship with a lady living nearby and had many loyal acquaintances and friends through the harness racing industry.”
As the Victim Impact Statement of Lyle Allan makes clear, both he and his mother, Mrs Mavis Allan, suffered enormously from the loss of a son and a brother. Mrs Allan died in February 2002 deprived of the knowledge of the fate of her son and unable to lay his body to rest.
The impact upon Lyle Allan has included caring for his dying mother, whose own death, in his view, was hastened by the death of her youngest son. The effect upon Lyle Allan’s health has included aggravation to his Type 2 diabetes, glaucoma, constant headaches and, according to a treating psychologist, Kerryn Westhorp, Post Traumatic Stress Disorder and Depressive Disorder.
Lyle Allan has had to cope with cross-examination in two committals and three trials. He has had to listen to the denigration of his brother’s character, and the assertion that he may have staged his own disappearance or committed suicide. He has felt it necessary to move from his family home in Northcote and has been unable to concentrate on his PhD studies at Monash University. He continues to miss his brother greatly.
The death of Keith Allan and the manner in which it occurred, is something from which his family and friends will never fully recover.
You, Sudo Cavkic, are 39 years old. You were born in Bosnia in January 1968 and came to Australia at the age of 2. You have an older sister and younger brother. Your parents were both hard working and law abiding. Your father worked as a bricklayer and your mother in a factory. I am told that you are embarrassed by the shame you have brought upon your family.
You were educated at local schools in the Footscray and St. Albans area leaving St. Albans High School in year 11 at the age of 17. At school you were good at sport and eventually you rose to play State League Soccer. Upon leaving school you commenced an apprenticeship in upholstery. After about two years you did TAFE courses in plumbing and plastering. Your employment history is generally good and has encompassed such occupations as plasterer, trades assistant and cleaner in your brother’s cleaning firm.
You moved to Western Australia in 1992 with a young woman and this partnership produced a daughter now aged 15. When, after some two years, that relationship broke down, you initially remained in Western Australia for a further 2½ years to be close to your daughter. You returned to Victoria in 1999. I accept that you have loving feelings for your daughter and for your family. Your separation from your daughter and the feelings of shame for what you have caused your parents to endure are, in themselves, aspects of punishment. In relation to the latter, you have declined to have your parents visit you in gaol and, consequently, have not seen them face to face for the past five years; nor have you seen your daughter since October 2001.
Your prior convictions, incurred between February 1988 and December 1996, substantially comprise drink driving offences. These are effectively irrelevant for sentencing purposes, although I note a subsequent conviction for affray being a fight at the Kealba Hotel in May 1999, for which you received a short prison sentence in October 2001. It was put that the delay in that case coming to court was due to your co-offender, who was your employer, wanting to defend the case. This was not a prior conviction and you have committed no other offences of violence.
According to a psychologist’s report prepared by Ms Elizabeth Warren, and dated 9 April 2004, you are of normal intelligence and have no psychological or psychiatric disorder. Ms Warren described you as an affable and sociable man who was slightly over-accommodating to the needs and desires of others. In your counsel’s words, you were a loyal person who was easily led. A character witness, Mr Derek Cutajar, described you as a good natured and non-aggressive person and expressed the view that this offence was totally out of character. He also spoke of the traumatic effect on you of the death by electrocution of a work colleague in 1999 and of your efforts to assist his widow and two young children.
It is obvious that the full account of what occurred to Keith Allan has not emerged in this trial. This includes the manner of his death and the disposal of his body. Your counsel suggested that one factor in your own reluctance to ameliorate your situation by providing information was your strong sense of loyalty. If this is so, such loyalty is misplaced. But it is still not too late to influence your circumstances positively by revealing the whereabouts of Keith Allan’s body.
Your intelligence, temperament and capacity for hard work and relatively minor prior convictions, suggest that your prospects for rehabilitation are reasonable. Indeed, I am informed that you have been a model prisoner in the past five years working virtually constantly at one job or another and undertaking courses offered within the prison system. Your greatest danger is becoming institutionalised given the time you must remain in custody.
Costas Athanasi, you are 43 years old. You were born in Cyprus in 1964 and your family came to Australia when you were aged 6. You have two older brothers and a younger sister. Your parents are both hard working people and, at one stage, had a fruit block in Loxton North (South Australia). Later, they operated a fruit and vegetable business in St. Albans. I am informed that your family remains supportive of you.
After attending St. Albans Primary School you completed your HSC at Kealba Secondary College, where you were talented at sports, particularly in soccer, tennis, swimming and athletics. You did not go on to seek tertiary education, apparently because your father was keen for you to go to work.
You have a good employment record. You worked initially in your father’s green grocery business which expanded to two shops and a packing shed. After your parents’ investment in the building of a shopping centre in St. Albans failed, resulting in bankruptcy, the family returned to Cyprus. You were then 25 years old. Cashing in on the tourist boom, the family opened and operated several bars during the summer months.
You returned to Australia and met your de facto wife, who you took to Cyprus in 1996. Two years later you returned to Australia because your partner was missing her parents. In 1999 that relationship terminated amidst emotional and drug related problems. There were two children, now aged 12½ and 11, from that partnership. It is not clear to me on the material if you are still in contact with these family members but in any event your children will be mature adults before you are able to associate freely with them. This, itself, constitutes a punishment.
During 1998, while working as a security guard, you suffered a serious injury to your left arm when you were stabbed in an altercation outside a nightclub. The injury required micro surgery to repair tendons and blood vessels, and it rendered you unable to work.
It appears that it was around this time (when you were aged about 34) that you commenced to take, and subsequently traffick in, illicit drugs. You also commenced to gamble. You became addicted to both.
Your prior convictions, which essentially involved street offences, are irrelevant to this sentencing exercise. However, in July 2003, you pleaded guilty in the County Court to offences which included six counts of trafficking in a drug of dependence; four counts of possessing drugs; and possession of a double action 8-shot air pistol.
On 4 July 2003, Judge Gullaci, in the course of pronouncing sentence, described you as “a middle level trafficker”. The drugs involved in the trafficking were methylamphetamine and ecstasy, and the drugs you possessed were heroin, ketamine and cannabis. It is sufficient to note that Judge Gullaci imposed a total effective sentence of 69 months imprisonment with a period of 52 months before your eligibility for parole. Pre-sentence detention already served was declared as 487 days.
Since your arrest on those charges in March 2002 you have been in custody. It was submitted, and I accept, that during that time you have been a model prisoner. Although a drug addict at the time of your arrest, you have since desisted from drug use and have undertaken courses in drug education and relapse prevention. Additionally you have undertaken such courses as sewing and subsequently made garments for hospitals. Indeed, I am instructed that, over five years, you have undertaken all available courses and worked consistently. This is to your credit.
A psychological report prepared by Mr Bernard Healey in June 2003, indicates that you are of average intelligence and that you suffer from no major psychological or psychiatric disorders. Mr Healey further remarked:
“Since being in custody he has demonstrated genuine resolves to make changes in his life, co-operating with relevant courses and applying himself conscientiously to work.”
In light of your education and intellectual background, your work record and your activities while in custody, I am satisfied that you have the capacity for rehabilitating yourself.
Julian Clarke, you are presently 51 years of age. You grew up and were educated in the Geelong area, completing your secondary education at Belmont High School. On the scant information before me, you then graduated as a primary school teacher but chose to undertake employment in the State Ministry of Housing. During a period of 10 years you gained expertise in the area of conveyancing. You subsequently put this to use as a law clerk in that legal field at firms in Geelong and Melbourne. You undertook the same role for five years from February 1995 at Keith W. Allan & Associates where, as I have previously indicated, you were also effectively office manager.
Your employment history bespeaks intelligence, and no material suggesting any psychiatric or psychological problems was adduced in evidence.
You have three brothers, none of whom have any convictions and, until the perpetration of this crime, neither did you.
I have not been provided with any material about other aspects of your life although a statement by you, tendered in evidence at the trial, indicated that you were divorced with no children. In more recent times you have had homosexual relationships with the witness Gibbons and also with Mr Chew, the person whose gambling activities you assisted through the trust account.
No mention was made of your activities while in prison but it was never suggested that you had not conducted yourself properly while in custody.
I should make it clear that you are not being sentenced for any acts of dishonesty perpetrated upon the Keith W. Allan trust account. Nor are you to be punished because, by your actions, you betrayed the trust of your employer. That being said, I agree with the comment of Justice Cummins:
“A significant distinguishing factor between you and the other two accused is that it was you, not they, who conceived this crime, you, not they, who instigated it, and you, not they, who were its intended beneficiary.”
What is quite obvious is that without your initiative, there would have been no murder.
You were previously sentenced to serve a period of 30 years imprisonment with a non-parole period of 25 years.
In relation to you, Mr Cavkic, and you, Mr Athanasi, I agree with Justice Cummins that, in all the circumstances, you should largely be treated in the same manner. Previously, each of you received an initial head sentence of 27 years. In your case Mr Cavkic, the minimum period fixed by the sentencing Judge was 23 years. In your case, Mr Athanasi, Justice Cummins directed that 2 years of your sentence for murder be served cumulatively with the sentence you were undergoing for the drug and associated offences that had been imposed by Judge Gullaci. This made a total effective sentence of 29 years, and a non-parole period of 24 years was fixed.
On behalf of all of you, it was argued that the sentences imposed by Justice Cummins for the offence of murder were excessive. In aid of this submission, a chart containing sentences for similar murders was produced. It has frequently been stated that, since all cases must ultimately depend on their individual facts, such an examination of other sentences provides minimal assistance to a sentencing court. What is significant in the present case, and sets it apart from similar contract killings, is the absence of the deceased’s body and the refusal of any of you to provide that information for the grieving relatives and friends. Moreover, a secondary effect of this attitude, and its demonstration of lack of remorse, is to reduce, to some extent, the weight which may be attributed to your claims of actual rehabilitation. In all the circumstances I am not persuaded that the sentences imposed by Justice Cummins were excessive. Indeed, having regard to the facts and circumstances I have set out, and the principles enunciated in the Sentencing Act 1991, I would regard those sentences as entirely appropriate (including the provision for cumulation in your case Mr Athanasi). It was also submitted, however, that in re-sentencing you, I should take into account the delay in the finalisation of these proceedings. It was further put on your behalf that I should take into account the prima facie capacity for rehabilitation that each of you have demonstrated during the approximately five years of your incarceration.
The weight which a court should accord to the circumstance of delay has attracted various judicial views.[3]
[3]See R v Green [2004] VSCA 67 (para [15]) compared to R v Merrett, Piggott and Ferrari (2007) 14 VR 392 at paras [32]-[45].
Initially, it might seem surprising that a prisoner who was chosen to contest a criminal charge and has ultimately been found guilty, should obtain any benefit from the delay occasioned by having adopted that course. Moreover, it might be argued that the delay equally affects the relatives of the victim and, further, that prisoners in your position have obtained the credit of pre-sentence detention.
However, on a proper analysis, such delay is occasioned by the operation of the criminal justice system and the exercise of the rights which that system accords an accused person. It must also be recognised that your exercise of that right has deprived you of the benefit of a plea of guilty and the demonstration of any remorse. Your sentence is also affected by the failure to reveal the whereabouts of Keith Allan’s body. These, however, are distinct and separate detriments, and care must be taken not to punish you twice. Finally, it must be borne in mind that you are the ones who have had to face the uncertainty of your ultimate disposition.
In my view, the authorities indicate that some account should be taken of the period of delay. Additionally, your exemplary conduct in custody during the period of some five years from the commencement of your incarceration, which suggests a capacity for rehabilitation, should receive some recognition in the sentences imposed. All this, however, must be placed in the context of the gravity of this offence, the features of which I have already identified. Ultimately, I have concluded that, in each case, the appropriate allowance for these factors is 18 months.
Mr Cavkic, I declare that you have already served 2,006 days pre-sentence detention for this offence and I direct that such declaration be noted in the records of the Court. You will be sentenced to be imprisoned for 25½ years and I fix a minimum period of 21½ years before you become eligible for parole. This sentence, and each of the others I impose, is to operate from today’s date.
Mr Athanasi, when you were sentenced by Justice Cummins, he ordered that 2 years of the sentence of 69 months fixed by Judge Gullaci on 4 July 2003 be served cumulatively upon the sentence for murder he was then imposing. This resulted, as I have noted, in a total effective sentence of 29 years. His Honour also directed that you retain the benefit of the 487 days pre-sentence detention declared by Judge Gullaci. As then required, Justice Cummins fixed a new non-parole period which he set at 24 years.
I proceed on the basis that you were to first serve the two years of the sentence imposed by Judge Gullaci, which you were then undergoing. Given that you were to retain the benefit of the 487 days pre-sentence detention, you then had 242 days remaining of the cumulated portion of the sentence of Judge Gullaci as at 10 May 2004. On my calculations, that part of your sentence was completed on 7 January 2005.
Thereafter, you commenced to serve the balance of the sentence imposed by Justice Cummins.
Subsequently, a number of events have overtaken that sentence. On 2 August 2005, a re-trial of this matter was ordered. At that date you had served a further 206 days of your sentence which, at that point, was by virtue of s.16(1) of the Sentencing Act 1991, being served concurrently with the sentence imposed by Judge Gullaci.
Between 2 August 2005 and today’s date, 16 August 2007, you have been in custody for a further 744 days.
On 16 June 2006, the original non-parole period fixed by Judge Gullaci expired and, consequently, I am not required to fix a new non-parole period pursuant to s.14(1) of the Sentencing Act. Moreover, I am informed that the head sentence for your drug offences expires on 15 November 2007. However, I do not consider that fact to be relevant for my calculations.
In your case, there is technically no pre-sentence detention to be declared. However, so as to fairly reflect your situation, and give effect to the principle of totality, it is necessary to have regard to the period of concurrent detention you would have served had not the appellate process supervened. Further, in order to achieve an appropriate level of parity with the sentences of your co-offenders I propose to take into account the period of approximately 10 months that you were in custody between 3 July 2003 and 10 May 2004, albeit you were serving part of your earlier sentence.
Accordingly, taking into account the various periods to which I have referred, on the charge of murder you are sentenced to be imprisoned for 24 years and I fix a minimum period of 19 years before you become eligible for parole.
In your case, Mr Clarke, I declare that you have already served 1,751 days of pre-sentence detention for this offence (inclusive of today’s date), and I direct that this declaration be entered in the records of this Court. You will be sentenced to imprisonment for 28½ years and, given the length of that sentence, I fix a period of 23½ years before you become eligible for parole.
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