R v Gazdovic

[2002] VSC 588

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1545 of 2002

THE QUEEN

v

MARIA GAZDOVIC

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2002
DATE OF SENTENCE:	20 December 2002
CASE MAY BE CITED AS:	R v Maria Gazdovic
MEDIUM NEUTRAL CITATION:	[2002] VSC 588

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Sentence – Manslaughter - Plea of guilty – Killing with saucepan and walking stick of domineering and abusive husband of nearly 50 years – Marginally excessive self defence – Release on 2 year undertaking under s.72 of Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kayser	Office of Public Prosecutions
For the Accused	Ms N Gobbo	Leanne Warren & Associates

HIS HONOUR:

1. Maria Gadzovic, you have pleaded guilty to manslaughter.  On 19 October 2001, you killed your husband Anton.  You had been married to him for nearly 50 years. 

1. You and the deceased were born nearly seventy years ago.  You were both raised in a village in Croatia.  When you were 19, you chose to marry him, despite being warned against doing so by your family.  He started abusing you and beating you three days after you were married.  The abuse and the beatings were to continue for nearly 50 years.  He told you often that he would kill you.   The two of you fled from Croatia to Italy in the late 1950’s.  There, you gave birth to the only child of the marriage, a son.  Shortly after that, the three of you came to Australia.  You and the deceased worked hard here.  You raised your son.  You were eventually able to acquire your own home in Cambellfield.  Until your son left home, the deceased physically and verbally abused your son as he did you.  He isolated you from contact with family and friends.  He controlled all aspects of your life.  You were his slave.  As an aspect of maintaining his control over you,  he kept guns on hand in the house.

1. Circumstances changed in the last few years.  That seems to have been mainly because you and the deceased had problems with illness.  In 1998, you had to go to hospital for an operation.  The deceased showed no sympathy for your needs at that time.  He insisted that his needs be met.  For some months after coming out of hospital you went back to being his slave.  Then, you summoned up the courage to leave him.  You moved in with your son and his family, despite that you found being there embarrassing.  You also had the courage to report the presence of the deceased’s guns to the police.  The police came and took the guns away.  It was not long before the deceased was urging you to return to him.  He promised not to beat you.  You went back to him.  He went back to beating you and abusing you as before.  Deprived of his guns, he needed another means of intimidating you.  He brought an axe into the house.  He placed it in an obvious and handy place in the front hall near the kitchen.  He told you why the axe was there.  It was to deal with you.

1. The deceased had his health problems.  In 1998, he suffered a stroke that led to his using a walking stick at times.  He suffered from diabetes.  Yet, as time went on, he chose to drink more alcohol and from an earlier time in the day.  He did not like what he was told by his doctor.  His attitude towards you became more menacing in the months, weeks and days leading up to 19 October 2001.

1. On 19 October 2001, the deceased had started drinking beer around 8 a.m.  An hour or so later, you did some washing outside.  When you came into the kitchen, the deceased was seated at the table.  His greeting was not: “Good morning.”  It was an all too familiar threat: “I’ll kill you”.  He had the inclination to carry out that threat.  With the axe nearby, he had the means to carry out the threat.  He told you to get him noodles for lunch.  You took up a saucepan to cook some macaroni for him.  You could not resist making a remark.  It was one that was scarcely inappropriate given the time of day.  It was that it was too early for lunch.  The deceased did not appreciate your remark.  He bristled.  He said that you were finished.  He said he was going to cut you into pieces and make sausages out of you.

1. He moved out of the kitchen into the front hall.  That, of course, was where he kept his axe.  You were scared that he might carry out his threat.  You followed him.  You were still carrying the saucepan.  He went to pick up the axe.  You hit him with the saucepan a number of times.  You hit him on the hand and you hit him on the head.  With the last of those blows, the handle on the saucepan came away from the pan.  The blows caused him to fall to the floor.  You then took up the deceased’s walking stick in case he came at you again.  That is what he did do.  When he got near you, you hit him with the walking stick on the hand and on  the head.  He fell to the floor again.  Even from the floor, he managed to get the walking stick off you as you hit him.  He then hit you with the walking stick.  You retreated down the passageway towards his bedroom.  He still came after you.  You grabbed a folding chair.  You hit him with the chair.  That caused him to drop the walking stick.  You picked it up.  You hit him again with it.  You only stopped hitting him when he was no longer moving.  You then sat on a chair and watched him for a considerable time, in case he came at you again.  He could not do so.  You had hit him hard and often enough to cause his death.

1. You got up from the chair.  You telephoned a friend.  She told you to ring the police, and you did.  You told the police what had happened on the day.  You told them a little of what had happened over the prior 50 years.  The story was, and is, eminently believable.

1. Mr Kayser has indicated to me a number of things as to the position of the prosecution.  One is that what you said to the police on the day you killed your husband is accepted as truthful.  Another is that it is accepted that you had initially acted in self defence, but then continued to inflict violence beyond what was reasonable, so that there was manslaughter by unlawful and dangerous act.  Another is that an immediate custodial sentence is not called for.  In the circumstances of this case, to say that those concessions are sensible is an understatement.

1. You have pleaded guilty.  You indicated from an early stage that you were prepared to do so.  The chance of an acquittal thereby passed up was, in the circumstances of this case, of significant value.  I cannot think of a homicide case where the level of moral culpability could be rated as low as here.  You are nearly 70, having been born in March 1933.  Yet you have led a blameless life.  You have no prior convictions.  You have spent almost all of your life catering to the excessive needs of an abusive, domineering husband.  All the indications are that you have been, and remain, extremely remorseful for what you have done.  I could not rate the prospects of rehabilitation more highly.

1. I recognise that any manslaughter conviction has to be regarded as serious. But here, all the evidence points to the conclusion that your life was at stake.  I accept that the community could not but disapprove of any situation where excessive violence is used in self defence.  But, in my assessment, you only marginally failed to judge to a nicety when to stop using a walking stick in self-protection.  I think almost any community member, who was fully aware of all of the background that I have summarised, would approve of my being merciful here.  There is clearly nothing to be gained by sentencing you to any further period of detention.  Of the range of sentencing options open to me, I propose to adopt the Section 72 undertaking option.  It is the first time since 1991 that I have done so, but other judges have done so in strikingly unusual circumstances.

1. This means that, following your conviction, the proceedings will be adjourned for a period which I fix at two years, upon you giving an undertaking to comply with the following conditions.  The first is that you appear before the court if called on to do so during the period of the adjournment, and, if the court so specifies, at the time to which the further hearing is adjourned.  That is two years from today's date.  The second is that during the period of the adjournment you will be of good behaviour.  You will be released if you are prepared to give the undertaking in those terms.  If you are prepared to give that undertaking, you will need to come forward and sign a document that has been prepared.  I will then witness your signature.  Having done so, I would hope and expect not to see you again.