R v Dowsett
[2009] VSC 88
•23 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1720 of 2008
| THE QUEEN |
| V |
| CHRISTOFFER HAYDEN DOWSETT |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2009 (Plea) | |
DATE OF SENTENCE: | 23 March 2009 | |
CASE MAY BE CITED AS: | R v Dowsett | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 88 | |
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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Premeditated murder – Remorse – Prisoner undertaking to give evidence against co-accused – Significant medical disabilities of the prisoner.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Lincoln | Office of Public Prosecutions |
| For the Accused | Mr G. Meredith | Victoria Legal Aid |
HIS HONOUR:
Christoffer Hayden Dowsett, you have pleaded guilty to the murder of Michael Traycevski on 15 September 2007; on 18 March 2009 I heard a plea on your behalf.
The trial of your co-accused, Natalia Oscianko, will proceed on Monday 23 March after you are sentenced for this offence.
Your actions in the brutal killing of the deceased were premeditated and merciless. However, you have agreed to give evidence against your co-accused, Natalia Oscianko, and that fact alone necessitates a reduction of what would have been a very long period of imprisonment.
The facts
The deceased and Ms Oscianko commenced to live together in 2002, having a daughter, Mikaela, in 2005. In 2006, you and your de facto spouse, Julie Becker, met Ms Oscianko and developed a relationship with her and the deceased. They lived close by and you became very friendly with Ms Oscianko, whose relationship with the deceased was deteriorating and at times became violent. You and the deceased did not get on. On at least two occasions you became involved in physical altercations with the deceased, including striking him with a baseball bat, which resulted in him being hospitalised.
In the period of approximately three months prior to the murder of the deceased, you and Ms Oscianko discussed on a number of occasions the killing of the deceased, including the consideration of various means by which his life could be ended. As far as I can tell, whilst the plan to kill the deceased was hatched by Ms Oscianko, you went along as a willing participant, encouraged by your apparent dislike for him. You informed Ms Becker of the plan to kill the deceased and, notwithstanding her efforts to dissuade you from this enterprise, you and Ms Oscianko were determined to carry out his murder.
After considering and rejecting various means of perpetrating the murder, including throwing him off the E.J. Whitten Bridge, you finally decided to kill him on the night of 14 September. You told Ms Becker that it was going to occur: “It’s him or me”.
After a number of messages and discussions with Ms Oscianko during that evening, you prepared for the murder. You and Ms Oscianko altered the numberplates on your panel van and hid the signage on it by using duct tape. It was to be used to convey the body of the deceased to a secluded location once he had been killed.
At approximately 1.30am on 15 September, whilst you were in bed, you were contacted by Ms Oscianko. You drove to her home, collected the child, Mikaela, and returned her to your house. Then you went back to the deceased’s home, having equipped yourself, to carry out the murder, with a piece of nylon rope.
Your description of the killing of the deceased was summarised by the crown prosecutor based upon your record of interview and your statement of 11 March 2009 as follows:
“I just walked into the room. Nat was lying down beside him. Then she got out and I got in. He woke up. Then when he was quiet and he was facing the right way she quietly got up and as she was getting up I was getting in. He woke up as I was about to put it (the cord) around his neck. I managed to get part of it around his neck. I rolled him around and I was underneath him and then Natalie pinned him down by jumping on top of him. She was kneeling on him, like sitting on him holding him down with her arms. He then woke up and said ‘Can’t we talk about this’ and she said ‘No, Michael, it’s over. It’s done’. We wrestled – we fell off the bed together. He landed face down and I landed on top of him. I ended up sitting on the ground on the bedroom floor with one bent knee. I remember I was in an awkward position. I strangled him in this position. He was face down on the carpet. The cord was crossed and wrapped once around his neck. Michael’s feet were down near my feet. He had given up by this point and was no longer struggling. Natalie had by this stage walked out to the kitchen once she had helped me get the rope around his neck. It took about three minutes for him to die. He let go his bodily functions and he urinated and that’s how I knew he was dead.”
In your statement, you say that you felt remorse pretty much straight away, but your actions do not demonstrate such feelings. You dressed the deceased, then went home and returned in the panel van to his premises, where you and Ms Oscianko endeavoured to remove any signs of the crime.
You wrote a note implicating another person in the murder, which was placed in the pocket of the deceased’s pants.
You then, with Ms Oscianko, carried the deceased to the panel van and you both returned to your house.
On the evening of 15 September, you drove with Ms Oscianko to Hume Road, Laverton North and dumped the deceased’s body in a rubbish site. Subsequently, as you both were concerned that the deceased’s runners had not been wiped, you both returned to the Hume Road site and Ms Oscianko wiped the deceased’s runners clean.
Later on, you destroyed the clothing you wore at the time of the killing as well, it would seem, as the nylon rope used in the murder.
You told Ms Becker that you killed Michael because you did not like the way that Ms Oscianko was treated and she wanted him killed.
When you were initially interviewed by the police on 17 September 2007, you denied having any knowledge of the circumstances surrounding the deceased’s death. You maintained this stance for several days, with the aim of throwing suspicion upon others. However, on 22 September 2007, you made a full confession to the police of your role in the deceased’s murder. You also told the police that you were concerned that the deceased or his associates may cause you or your family harm.
Maximum penalty and sentencing practices
The maximum penalty for the crime of murder is life imprisonment. Section 5(2) of the Sentencing Act obliges me to take account of current sentencing practices; there is a wide range of sentences imposed for murder ranging from thirteen years’ imprisonment to life imprisonment.[1]
[1] Sentencing Advisory Council Report “Homicide in Victoria: Offenders, Victims and Sentencing” November 2007.
Your background
You are now 44 years of age, having been born on 7 August 1964. You were raised in Essendon and finished Year 11 at Essendon Technical College. Subsequently, you obtained a plumbing apprenticeship and, for a number of years, worked as an office re-fitter.
You suffered serious injuries as a result of two accidents (one motor vehicle and one industrial) in 1988 which caused you to be unemployed for a period of approximately six years. As a result of these injuries you have often suffered from cluster headaches. You were, however, able to return to work and in the period of ten years prior to this offence worked as a truck driver with an organisation known as Canny Carrying. You worked full time driving both locally and in the country. You and Ms Becker have one child, a son, who is now 13 years of age.
You have had several significant health issues in your life apart from the effects of the two accidents. First, you suffer from a progressive ophthalmological condition known as retinitis pigmentosa.[2] This has reduced your peripheral vision and will, I accept, reduce your overall vision significantly in the ensuing years. It had already commenced to cause problems with your occupation as a truck driver, which was clearly in jeopardy. The condition is untreatable and will, in all likelihood, worsen, but the wearing of spectacles assists in direct vision. Secondly, you had, since June 2007, been treated by your local general practitioner for depression which was accompanied by poor sleep, poor appetite, low mood, reduced concentration and stress.[3] You were treated with anti-depressants and, on a subsequent review on 20 July, your general practitioner noted that you had made improvement and things were settling, but he continued your relatively high dosage of anti-depressants. On 18 August, he noted that you were doing well and managing well, and again gave you repeat medication.
[2]Reports of Dr Mack, Dr Atkins, Dr Simi-Sachdev.
[3]Clinical notes of Dr Abni.
There is nothing, as far as I can tell, to suggest that there was any relevant psychiatric condition affecting you at the time of the murder of the deceased. You were working regularly, and there is nothing in Ms Becker’s evidence, nor in the report of Mr Walton, consultant psychiatrist, to suggest that such a condition was playing any part in your considered decision to murder the deceased.
Prior convictions
You have no prior convictions and I accept that you were of good character prior to this offence.
Nature and gravity of the offence
For a number of months you and Ms Oscianko plotted the murder of the deceased. His death was premeditated, as were your actions afterwards to dispose of his body. You killed the deceased at his home when he was defenceless and showed him no mercy despite his pleas. I do not accept that the deceased or his family posed any real threat to you – he did not make any such threat and Ms Oscianko (who apparently relayed such information to you) is anything but a reliable source. I do, however, accept that you had a perception that you or your family may be subjected to violence.
Responsibility/culpability
Although your counsel referred to Ms Oscianko as “dangerous and manipulative” and that you were “putty in the hands of Oscianko”, I do not accept that she was the sole architect of the deceased’s death with you merely being the unwitting tool of her vengeance. Rather, the evidence of Ms Becker is that you, as much as Ms Oscianko, plotted the fate of the deceased. There is no suggestion that at any time you endeavoured to dissuade Ms Oscianko nor tried to withdraw from the enterprise. Indeed, notwithstanding the many entreaties of Ms Becker, you continued to canvass various modes by which the deceased could be murdered and ultimately carried out the murder in a brutal fashion.
In summary, you bear a very heavy responsibility and culpability for the death of the deceased. The premeditated nature of his murder and the steps taken afterwards to dispose of his body all place this case outside the norm of many other homicides.
As I have said, any psychological impairment appears to have been minimal and, in my view, of no effect upon your moral culpability.
Victim impact
Mikaela has lost her father, a relatively young man of 26 years whose life was terminated by your actions. Other members of the deceased’s family, including his parents and his sister Margaret have also suffered a grievous loss.
Guilty plea
You have pleaded guilty to the crime of murder and thereby saved the community and the Court the expense of a trial. Although you were not forthcoming to the police initially, on 21 September you made a full confession, and this is to be taken into account. In particular you are to be given credit for providing the deceased’s family with some answers regarding the circumstances of his death and not subjecting them to the burden and anxiety of a trial.
Undertaking to give evidence
Your undertaking to give evidence at the trial of Ms Oscianko is the primary factor in your favour. The Crown case is essentially circumstantial and your evidence as to the participation of Ms Oscianko and the circumstances surrounding the commission of the crime will enhance considerably the prospects of the Crown case against her being successful. Previous decisions of this Court and the Court of Appeal emphasise the public policy considerations which entitle you to a reduction of the sentence which would have been imposed. You are entitled to a significant discount on your sentence on account of this factor.[4]
[4]R v Johnston [2008] VSC 133 [15] – [19], R v Nagy (1992) 1 VR 637; 644-645.
Remorse
Notwithstanding your actions subsequent to the death of the deceased and your initial denials to the police, I accept that you now do have genuine remorse for your actions. This also counts in your favour.
Impact of imprisonment
Dr Walton, the consultant psychiatrist, believes that you are currently in the grips of a chemically significant depressive disorder, albeit not of very major severity but not trivial either. He believes that as a result of this condition alone you will endure a more onerous imprisonment than others, notwithstanding that a sizeable minority of the prison population are clinically depressed. I accept this opinion. I also accept that imprisonment will be more difficult for you, having determined to give evidence at the trial of your co-accused. In addition, your failing eyesight will inevitably make imprisonment more onerous for you than for other prisoners.
These matters must all be taken into account in your favour.[5]
[5]R v Verdins (2007) 16 VR 269 [32].
Conclusion
Sentencing you is a daunting task. I am faced with a man who plotted the death of the deceased over months and, without hesitation, carried out the plan he had conceived with the co-accused. Not one backwards step along the way. General deterrence, specific deterrence and just punishment are of real importance given the circumstances surrounding your offending. I am not persuaded that your psychological state demands any reduction in the consideration of the principles of general and specific deterrence, which must play a significant role in fixing your sentence.
On the other hand, I must take into account your plea of guilty, your decision to give evidence at the trial of the co-accused and the difficulties you will face in undergoing a period of imprisonment. In particular, your decision to give evidence is one which, as the authorities make clear, entitles you to a significant discount in your sentence.
I have been assisted by submissions from both the Director of Public Prosecutions and your counsel as to an appropriate period of imprisonment. At the end, of course, it is my decision, based on the matters that I have already canvassed.
Balancing these competing considerations as best I can, I have determined that you should be sentenced to a term of imprisonment of 14 years. I think it fair to regard your prospects of rehabilitation and success once your period of imprisonment is completed as being reasonable, and I also take into account the hardship that you will face in serving your prison sentence in fixing a non-parole period of 11 years, 6 months. But for your assistance, I would have imposed a far lengthier sentence, well in excess of 20 years’ imprisonment.
Sentence
Christoffer Dowsett, you have pleaded guilty to the murder of Michael Traycevski of which I now convict you.
I sentence you for that offence to a term of imprisonment of 14 years and set a non-parole period of 11 years, 6 months beginning this day.
I declare that the period to be reckoned as already served under the sentence I have imposed on you is 550 days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
I order pursuant to s 464ZFB(1) of the Crimes Act that the forensic sample and any related material and information obtained be retained for placement on the database.
For the purpose of s 6AAA of the Sentencing Act, I state that, but for the plea of guilty, I would have imposed a period of imprisonment of 16 years with a non-parole period of 13 years, 6 months. I record that this putative sentence solely takes into account a plea of guilty as opposed to that of not guilty. The discount to which you are entitled as a result of your undertaking to give evidence against the co-accused, which I regard as the most significant factor in this sentencing exercise, does not form part of the s 6AAA exercise.
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