R v Gazdovic - [2002] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1438 of 2002

THE QUEEN

IVAN GAZDOVIC

---

JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 NOVEMBER 2002
DATE OF SENTENCE:	6 NOVEMBER 2002
CASE MAY BE CITED AS:	R. v. GAZDOVIC
MEDIUM NEUTRAL CITATION:	[2002] VSC 485

---

SENTENCE – Incitement to murder offender's wife and sister (Counts 1 and 2) and incitement to intentionally cause serious injury to offender's brother in law (Count 3) – Agreement made with undercover police officer – Withdrawal from enterprise prior to date of proposed consummation - Prior good character – Excellent prospects of rehabilitation – Need for denunciation and general deterrence – Offender sentenced to 5½ years on Counts 1 and 2 and 3½ years on Count 3 – Total effective sentence 5½ years with a non-parole period of 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. McArdle QC	Solicitor for Public Prosecutions
For the Accused	Mr. R. Sarah	Harwood Andrews Lawyers

HIS HONOUR:

Ivan Gazdovic, you have pleaded guilty to two counts of incitement to murder. The intended victims of this activity were your wife, Katica Gazdovic, and her sister, Anna Simunovic. You have also pleaded guilty to one count of incitement to intentionally cause serious injury, the subject of that count being Anna's husband, Josip Simunovic. The actual incitement occurred at Geelong on 18 and 19 December 2001.

In order to sentence you for these offences it is necessary to place them in perspective. That involves not only an examination of the circumstances surrounding their commission, but also an understanding of your own background.

You are presently 55 years-of-age, having been born in Croatia in November 1946. You have a brother and sister residing overseas. After nine years of education you worked on a farm operated by your father. At the age of 18 you served in the army for 18 months and later you worked in salt mills. In 1969, you migrated alone to Australia, and subsequently, in 1970, you commenced a relationship with your first wife, Najelka. She already had two children, and there were two children from your union. In fact, you did not marry her until November 1985, and in 1996 you were divorced. It was suggested that you and your wife drifted apart and the final separation was an amicable one. Indeed, Mrs Najelka Gazdovic told the court that she still loved you and would support you in the future. She praised your parenting, not only of your natural children, but also of your step-children. This theme was reinforced by your daughter Marijana Perik, a most impressive witness, who described you as a fantastic dad, and also by your friends, Stjepan and Marija Cosic. All these witnesses attested to your capacity for hard work.

Your places of employment included the Ford Motor Company, International Harvester and Henderson Springworks prior to establishing your own concreting business. This you operated for 20 years. It was hard work. You…

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.

Continue reading R v Gazdovic

Details

AGLC: R v Gazdovic [2002] VSC 485
Case: [2002] VSC 485
Decision Date: 6 November 2002

CaseChat Overview and Summary

In the matter of the Commonwealth versus Gazdovic, the dispute involved the sentencing of an individual who had incited others to commit acts of violence against family members. The case was heard by the Supreme Court of Victoria. The defendant was charged with inciting his wife and sister to murder each other, as well as inciting his brother-in-law to cause them serious injury. These charges were based on agreements made with an undercover police officer. However, the defendant withdrew from the criminal enterprise before the acts were to be carried out.

The legal issues the court had to address included whether the defendant's withdrawal from the criminal enterprise prior to the proposed date of commission negated the intent necessary for incitement, and the appropriate sentencing considering the defendant's prior good character, prospects of rehabilitation, and the need for denunciation and general deterrence. The court needed to balance these factors against the severity of the offences and the principles of justice.

The court found that despite the defendant's withdrawal, his agreements constituted incitement as they demonstrated a clear intent to commit the crimes. The court considered the defendant's prior good character and his excellent prospects of rehabilitation. While acknowledging the need for denunciation and deterrence, the court imposed a sentence of 5½ years for incitement to murder and 3½ years for incitement to cause serious injury. The total effective sentence was set at 5½ years with a non-parole period of 2 years.

Orders