R v Gill & Mitchell
[2003] VSC 364
•26 September 2003
A
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1408 of 2003
| THE QUEEN |
| v |
| JASON RUSSELL GILL & MICHAEL PATRICK MITCHELL |
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JUDGE: | REDLICH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2003 to 21 May 2003 | |
DATE OF SENTENCE: | 26 September 2003 | |
CASE MAY BE CITED AS: | R v Gill & Mitchell | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 364 | |
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Sentence – Murder – Whether responsibility of each offender proved for all of the deceased's injuries.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McArdle Q.C. with Ms R. Carlin | Ms Kay Robertson, Solicitor for the Office of Public Prosecutions |
| For the Accused Jason Russell Gill | Mr L. Hartnett | Chester Metcalfe & Co. |
| For the Accused Michael Patrick Mitchell | Mr D. Drake | Grubissa White |
HIS HONOUR:
Summary of Facts
On 11 January 2002, Jason Russell Gill and Michael Patrick Mitchell, together with Lucas Robert Stanbury, were arrested and charged with the murder of Lazo Krincevski at Ivanhoe in the State of Victoria on 14 December 2001. Following a contested committal hearing, both Mr Gill and Mr Mitchell were committed to stand trial on one count of murder.
Lucas Stanbury was discharged at committal in relation to the charge of murder, but was, however, committed to stand trial on a charge that knowing that Mr Gill and Mr Mitchell to be guilty of the murder of Lazo Krincevski, he did acts with the purpose of impeding your apprehension, prosecution, conviction or punishment. He was arraigned on 3 February 2003 and pleaded guilty to this charge also giving an undertaking to the court at this hearing to give evidence at the trial of Jason Gill and Michael Mitchell in accordance with his statements made to the police and his Record of Interview.
On 1 April 2003 at the Supreme Court in Melbourne, Lucas Stanbury was sentenced by his Honour Justice Nettle to two years and five months imprisonment, with a period of one year and ten months fixed to be served before being eligible for parole. Further, his Honour ordered that all of the sentence of imprisonment imposed, save for forty-four days of pre-sentence detention, be suspended for a period of two years.
Subsequent to that hearing, Mr Gill and Mr Mitchell were each presented on one count of murder, to which charge you both pleaded not guilty.
Following a trial in the Supreme Court which commenced on 29 April 2003, a jury on 26 May 2003 found both Jason Russell Gill and Michael Patrick Mitchell guilty of Lazo Krincevski’s murder. The hearing of the plea was adjourned to enable both persons to be psychologically assessed. On 30 July 2003, I heard the pleas and received psychologist's reports concerning both Mr Gill and Mr Mitchell.
The Facts
Background
Thursday 13 December 2001 at 75 Beatty Street, Ivanhoe
In the early evening of Thursday 13 December 2001, a number of persons both invited and otherwise arrived at the home of Mr Mitchell at 75 Beatty Street Ivanhoe for a drinking session. People came and went at various times. Lazo Krincevski, together with Richard Scott and Robert Cameron, were part of the group who came to 75 Beatty Street, Ivanhoe that evening. Some of the alcohol was provided by Mr Mitchell and some was supplied by those who came to visit. Present at the house with Mr Mitchell in the early evening were his estranged wife Val and three of their children – David, Michelle and Michael Junior who resided with Mr Mitchell at 75 Beatty Street.
Mr Gill and Lucas Stanbury also lived at 75 Beatty Street. A large volume of alcohol was consumed there during the day by Mr Stanbury and Mr Mitchell. Mr Gill did not consume any alcohol prior to his attending cricket practice at around 5.30 p.m. that evening. After cricket practice Mr Gill was collected by Mr Stanbury and another friend and all returned to Mr Mitchell's home where Mr Gill commenced drinking along with everyone else.
During the evening Mr Mitchell together with Messrs Cameron, Scott and Krincevski decided to buy more alcohol. After purchasing a carton of beer and some Jim Bean cans, they returned to 75 Beatty Street some time after midnight. Mr Mitchell and the others continued to drink alcohol. At this time Mr Mitchell's children David and Michelle were present.
Breaker’s Nightclub
Lucas Stanbury and Jason Gill, together with a number of other persons left by taxi from 75 Beatty Street to go to Breakers nightclub in Bell Street Preston about 11.00 pm.
In the early hours of Friday morning, Mr Gill left Breakers and together with Lucas Stanbury. They were in company with Raymond Allen, Chris Elmes and Anthony Molinaro and together they all commenced walking down Bell Street. This group of persons all stopped at the 7 Eleven in Bell Street and bought something to eat and some drinks. At or about the time that Mr Gill and Mr Stanbury departed the 7 Eleven store, Mr Gill took possession of a V can only a short time before Mr Krincevski’s murder.
After stopping for a short while in front of the Gold Medal factory, Mr Gill and the rest of the group headed down Bell Street towards Liberty Parade where the group separated. Jason Gill, together with one Chris Elmes, walked back via Liberty Parade to the house at 75 Beatty Street. Lucas Stanbury and the others continued down Bell Street until they too separated near the corner of Bell Street and Oriel Road. Lucas Stanbury then walked on alone down Oriel Road towards Mr Mitchell's home at Beatty Street.
Friday 14 December 2001 at 75 Beatty Street
Chris Elmes and Jason Gill, having arrived back at Beatty Street from Breakers, continued drinking alcohol with Mr Mitchell, the deceased Lazo Krincevski and the others still remaining at Beatty Street. Shortly after his return to Beatty Street, Jason Gill went out into the front yard with Lazo Krincevski. An argument ensued. Mr Mitchell left the house too and joined Mr Gill and Mr Krincevski in the front yard.
Shortly afterwards, David Mitchell ventured outside. Seeing no one in the front yard, he walked to the intersection of Beatty Street and Oriel Road where he saw Mr Gill and his father, Michael Mitchell with the deceased some thirty metres away in Oriel Road. David Mitchell saw Lazo Krincevski fall to the ground in Oriel Road. Mr Gill was very close to Mr Krincevski at that stage. Mr Mitchell then ordered his son David to go back home. David Mitchell then returned to 75 Beatty Street.
Return from Breakers by Stanbury along Oriel Road
The next observation of both Mr Gill and Mr Mitchell was by Lucas Stanbury who was walking down Oriel Road. He saw both men climb over the front fence of the house at 80 Oriel Road which is on the corner of Jellicoe Street. This house was only a very short distance from the position where David Mitchell had observed both Mr Gill and Mr Mitchell with Mr Krincevski.
Both Mr Gill and Mr Mitchell were standing over Lazo Krincevski who was lying on the front lawn. Mr Gill then proceeded to drop a concrete slab which landed close to Mr Krincevski’s head. This concrete slab was a pit cover taken from the top of a telephone cable pit in Oriel Road close to the corner of Jellicoe Street and Oriel Road. According to Lucas Stanbury, the slab missed hitting Mr Krincevski’s head. Mr Mitchell then picked up the concrete pit cover, saying words to the effect of, "No fuck him. I'll do it." Mr Mitchell then held the slab around head height and dropped it down on the Mr Krincevski 's head. Lucas Stanbury urged both Mr Gill and Mr Mitchell to go home. Both men then returned to 75 Beatty Street with Mr Stanbury.
A full V can was found at the crime scene on the nature strip of Oriel Road in the vicinity of an open telecom pit. The V can had blood spatters belonging to Mr Krincevski on its lid, a blow from this V can having probably caused an elliptical laceration over Lazo Krincevski’s eye. The V can also contained other human DNA on its side which may have been the DNA of Mr Gill. Mr Mitchell’s DNA was found on a beer can on the nature strip of Jellicoe Street adjacent to the garden in which Mr Krincevski’s body was found.
On the way back to the house with Lucas Stanbury, Mr Gill said “Well, at least he got, got good” and Mr Mitchell said “Oh, got his right whack, he deserved what he got, he’s a dog.”[1]
[1]Transcript p.492, lines 3-7.
As Mr Hartnett rightly conceded on the plea, David Mitchell's evidence that both Mr Gill and Mr Mithcell and Lucas Stanbury returned to the house together was persuasive confirmation of Mr Stanbury's account of the sequence of events.[2]
[2]Transcript p.1923.
Dr Dodd, Forensic Pathologist, gave evidence as to the cause of Lazo Krincevski’s death describing it “as blunt head trauma, cut throat and multiple stab wounds.”[3] The pathologist’s opinion was that the deceased’s head injuries were consistent with being struck on the head with the pit cover and that these head injuries were a cause of death. Forensic evidence showed that the deceased had not only been bashed on the head, but that he had broken ribs, that he had been stabbed several times, and that his throat had been cut. During the period in which Lucas Stanbury observed both Mr Gill and Mr Mitchell in the front yard of 80 Oriel Road Ivanhoe, he saw no conduct by either of them that would explain the injuries inflicted upon Mr Krincevski other than those caused when the concrete pit cover was dropped upon Mr Krincevski’s head.
[3]Transcript p.983, lines 1-2.
On 14 December 2001, Lucas Stanbury made a false statement to police attempting to cover for Mr Mitchell by telling them that he (Mitchell) had accompanied Mr Gill and himself to Breakers nightclub. Mr Mitchell proffered the same false account to police.
Mr Gill was interviewed by police on 17 December 2001. Jason Gill told them that he did not know or recognise Lazo Krincevski even when shown a photograph of him.
Mr Mitchell was interviewed by police on 14 December 2001. He denied having seen Lazo Krincevski on or about 13-14 December 2001. He was re-interviewed on 21 December 2001 and continued to deny that he had seen Mr Krincevski at the time in question.
Mr Gill's circumstances
Mr Gill, you were born on 13 August 1972 and you are 31 years of age. You were born in Carlton and lived with your parents and younger sister in West Heidelberg. You attended the Heidelberg Heights Primary School and then the Macleod Technical School to Year 10. You appear to have related well to teachers and peers and you represented your school in football, cricket and athletics and won awards. You completed the theoretical aspects of a painting and decorating apprenticeship at Flagstaff TAFE College. Shortly after your family moved from West Heidelberg to Ivanhoe you left home, then being 18 years of age but then returned home for a period before commencing to live with a girlfriend. In 1991 you suffered an injury to your left leg in a road accident and after some seven weeks of rehabilitation returned home to convalesce. According to the report of Mr Bernard Healey dated 14 June 2003, you then lived at home for the following two years with your girlfriend until that relationship ended. Thereafter you lived for varying periods of time away from home again returning home for some months before leaving again. In the three months prior to this offence you had been living at Mr Mitchell's home, he being your mother's brother. Your parents were, for reasons now proved to be sound, unhappy about you residing there, it being, as your father said on the plea, a place where alcohol and cannabis were readily available.
You come from a decent and law abiding family. Your father who is now 55 years of age, suffered a heart attack when he was 42 years of age and has undergone triple bypass surgery. Since then he has been in receipt of a disability support pension. He had previously been a store supervisor. Your mother is 55. When her father became a paraplegic in a motor vehicle accident she was required to assist her parents in the care of nine young siblings. She now cares for her mother. She has stood by you and gave supportive evidence on your trial. Your sister aged 27 is in a permanent relationship and has two children. All of your family were regularly present throughout your trial and it is evident that they are greatly concerned about your welfare. Their devotion and support is ample testimony to the fact that you are possessed of worthy qualities.
The injury to your left knee and leg was serious. You required physiotherapy every second day for some 12 months whilst you convalesced at home. Thereafter you underwent numerous operations to the knee, leg and ankle. You have now been diagnosed with significant arthritis. In 1993 you were again involved in a motor vehicle incident. You were a passenger in another motor vehicle which caught fire after an accident. You pulled the other occupants of the vehicle to safety. You were emotionally traumatised by that accident and you have suffered symptoms of post traumatic stress disorder including flashbacks. You have consulted a psychiatrist at the Austin Hospital. You were also the victim of an assault in October 2001. Yet despite these episodes, personality testing by Mr Healey revealed that you were not suffering from any apparent signs of psychological or emotional disturbance and your intellectual testing revealed that you were of average capacity.
It appears that you began smoking cannabis in late adolescence. This smoking continued and increased to something in the order of three grams daily. You told Mr Healey that you would generally become intoxicated from consumption of alcohol once or twice each week. You told Mr Healey that you recognised the adverse impact of those substances upon your functioning and, in particular, on your judgment. The personality testing by Mr Healey revealed that you have a vulnerability to substance abuse consistent with your dependence upon cannabis and alcohol.
After you completed your schooling you worked for painting and building contractors completing an apprenticeship over a four year period. After some six months you gave up this work and did plastering work for some eighteen months. You then ran a business for some eight months with the assistance of family and friends and you then tried your hand at bricklaying. At one stage you travelled to the Gold Coast in an unsuccessful quest for work, then returning to Melbourne where you were unemployed for some twelve months until you commenced renovating houses with a friend who was a carpenter. It was work of this nature in which you were involved at the time of your arrest for this offence.
You have 33 prior convictions from six court appearances but it was not disputed during the plea that those prior convictions are of little significance, none of them involving offences of violence. A number of those offences relate to your use of cannabis and you have numerous convictions for theft and deception. At your last court appearance you were placed on a community based order for twelve months following the theft of goods from Bunnings Warehouse. You told the psychologist that by this time you had a gambling problem.
You have a love of music, having written songs, taken singing lessons and having been a member of a band which has recorded a number of songs. Since you have been at Port Phillip Prison you have formed a band and written further songs which have been recorded on a CD.
There has been a marked lack of permanency in your places of residence, employment and personal relationships and you have shown a dependency upon drugs and alcohol. Your counsel submitted that it would normally have been the case that over the next ten years you would have been expected to settle down, commence a long term relationship, start a family and develop a career. There appears to be nothing that should prevent you from achieving such objectives upon your release. I take into account that you have not previously served a term of imprisonment and that you have a network of support which you can utilise on your release.
You are a young man who, with encouragement and the continued support of your family may still lead a worthwhile life as you have reasonable prospects for rehabilitation.
Mr Mitchell's circumstances
Mr Mitchell you were born on 14 March 1956 and you are presently 47 years of age. You were the sixth eldest of ten children born to your parents. You grew up in West Heidelberg and attended local schools growing up in disadvantaged circumstances. Your father was a heavy drinker and a harsh disciplinarian who regularly beat you. As you told Mr Newton, psychologist during the course of an extended consultation with him at Port Phillip Prison on 27 June 2003 you did not regard your father's conduct towards you as abusive. Your father is presently in his 70's in a nursing home. Your mother who is also in her 70's, is frail and suffers from a brain aneurysm. She is cared for by your sister Maureen Gill. Mr Newton described the home environment in which you grew up as a boy as one characterised by alcohol abuse, physical violence and poverty. He ascribes your history of behavioural disturbance from an early age to these experiences which he suggests have had a more detrimental effect upon you than you are able or willing to acknowledge.
You attended at the local West Heidelberg Primary Catholic School until you were expelled because of unruly behaviour and stealing. You continued at the local State School but you experienced considerable difficulties in learning to read and write, experiencing significant behavioural problems throughout primary schooling including regular truancy, fighting and petty theft. You then attended a Technical School until the age of fifteen but your behavioural problems continued unabated into Secondary School. By the age of twelve years, you were already consuming regular and large amounts of alcohol.
When you were about twelve years of age, your father was involved in a very serious road accident suffering significant brain damage, your mother then having to carry the additional burden of caring for your disabled father.
By your fifthteenth birthday you determined to leave school as you were experiencing substantial academic difficulty. An assessment undertaken by Mr Newton shows that you are a person of average intelligence with your reading and comprehension abilities being in the average range despite the history of your educational disruption. You remained at home with your mother at first to assist her in looking after your father. You then took a job at a local supermarket and you have subsequently worked as a telegram boy and then as a labourer. At the age of eighteen you were imprisoned in an adult prison on a most serious offence involving the partial strangulation and multiple stabbing of a young girl on a train. You were sentenced to 10 years' imprisonment and you were released after seven years at the age of 24 years. I shall need to make further reference to this prior conviction.
After your release from prison you married your wife Valsamina and you have had four children from that relationship, David, Michelle, Jamie and Mikey. Jamie, a sixteen year old has psychiatric problems and has in the past been in institutions or cared for by his mother. You have been responsible in recent years for the upbringing of David, Michelle and Mikey and I accept that you are very close to and devoted to all of them. You had been for some time prior to your incarceration engaged in the full time care of your children and you were in receipt of a Supporting Parent's Benefit. Despite your lack of means you have always provided them with food and clothing and a roof over their head. Within the limitations of your financial means and background you have endeavoured to do your best as their father. Since you have been in custody for this offence your children have all remained together in the family home in Beatty Street. You are to be commended for the approach you have adopted towards David who was compelled to testify against you. You have been at pains to assure him that he did what he was obliged to do and that you hold no animosity or grudge against him. I was informed on the plea by Mr Drake that David sees you every Tuesday and that he is fairing well in his second year of apprenticeship as a baker. Your daughter Michelle is completing Year 12 and your youngest son Mikey who is thirteen is still at school. It appears that David and Michelle are caring for him. I am sure you are acutely aware of how your conduct has deprived your children of your presence at a time when you are so needed in their lives.
Since you have been in custody you have behaved in a responsible manner. You have completed courses in industrial cleaning, food handling and health and safety. It is your intention to do some leather craft work and you anticipate obtaining a forklift driver's licence. You have obtained a billet position and are responsible for cleaning out other cells. I take into account the positive attitude you have displayed whilst in custody and that it is your undoubted wish to return to caring for your family as soon as you are able.
Mr Mitchell you have a long term history of poly-substance abuse. You used to drink your father's alcohol until aged fifteen years when you began drinking regularly with friends in the neighbourhood. Thereafter your drinking escalated steadily. This pattern of heavy drinking has continued unabated until your arrest on the present offences. Prior to this offence you would drink on three or four days each week and your consumption was extreme. You told Mr Newton that you would drink in excess of forty standard drinks on each such occasion but claimed that there was no significant social impact to your drinking. You acknowledged that you experienced regular "black outs" when you could not remember what you had been doing, but you denied any other symptoms of psychological impairment as a result of your drinking. Mr Newton expressed the opinion, which I accept, that you were physically dependent on alcohol. You had a marked tolerance to the effects of alcohol which permitted you to consume extreme amounts.
In addition to the abuse of alcohol you also informed Mr Newton that you heavily used cannabis and had done so since you were 15 and on a daily basis. This was a steadily escalating pattern over the years. It appears that you frequently smoked cannabis at the same time as you indulged in one of your frequent binge drinking episodes. You also admitted abusing amphetamines for a twenty year period up to 1998, consuming about two grams of the drugs per day.
You have some 49 convictions from 23 court appearances. Apart from the very serious prior conviction in 1974 to which I have referred, you have numerous convictions for dishonesty, drug offences in relation to cannabis and amphetamines and a number of offences involving violence. Those offences were committed on an intermittent basis with only one of those subsequent convictions resulting in a short term of imprisonment in 1995.
Mr Drake submitted on your behalf that, although your alcohol abuse brought you to the attention of the police in relation to some of your prior convictions, your abuse of alcohol and other drugs has not given rise to any substantial or significant violent display. As this submission was not disputed, I do not intend to sentence you on the basis that your alcohol and drug abuse generally caused you to become violent or that you had any reason to conclude that it did. That is not to say that the heavy use of alcohol and drugs has had a serious detrimental impact on your functioning. There can be no doubt that your judgment on the night of the offences would have been severely impaired. Mr Newton found that you were by nature an impulsive individual who had poor planning skills. Mr Newton concluded that these tendencies you have would have been significantly exaggerated by the consumption of alcohol and cannabis thereby removing your inhibitions causing you to act precipitously and interfering with your judgment as to how you should behave.
You have no psychological or neurological complications according to Mr Newton nor did you show any particular impairment of your cognitive processing abilities. Mr Newton put this down to the fact that you have been abstaining from alcohol and cannabis as a result of your long period in custody. He concluded that you did have an anti-social personality disorder and a physiological dependence on alcohol and cannabis. Significantly you expressed the view that you did not have a drinking problem which Mr Newton described as a near delusional confidence in your ability to control your drinking whenever you wanted to. It appears that despite your long history of alcohol and drug abuse and your many prior convictions you have had little counselling to address your drug and alcohol abuse. It is my intention in imposing a sentence upon you to provide for a longer than normal parole period so that upon your release you can be supervised to reduce the prospect of a return to your previous levels of drug and alcohol abuse.
Motiveless Spontaneous crime whilst intoxicated.
It was submitted on both of your behalves that there was no motive for you to kill Mr Krincesvki. There had been no apparent hostility between you and the evidence of the events of that evening suggested that Mr Mitchell and the deceased were well disposed towards each other. Both Mr Hartnett and Mr Drake described this as a spontaneous killing in the course of an episode of extreme binge drinking. Mr McArdle fairly conceded that this was not a pre-meditated offence although the aggression and violence escalated from outside Mr Mitchell's home as you moved down Oriel Road towards Jellicoe Street. Neither did the Crown take issue with the submission that each of you and the deceased were extremely intoxicated at this time.
The evidence led in the course of the trial and the information provided by you Mr Mitchell to Mr Newton suggests that you had consumed something in the order of 25 standard drinks on the evening prior to the incident and you had in addition been drinking continually throughout the day. You also told Mr Newton that you had been smoking cannabis throughout the day and were quite stoned. You claimed that you had no recollection whatsoever of the events of the evening and the night of the murder.
Mr Gill, although you had not been drinking during the course of the day, you drank to excess throughout the evening at both the Beatty residence and at the Breaker's Nightclub. You have also shown signs of an unhealthy dependence on alcohol and drugs which has brought you to this sorry state.
Mr Mitchell, Mr Gill, your alcohol consumption and cannabis use on this night was not out of character for either of you. It led to a diminution in self-control. I view its relevance as primarily bearing upon the spontaneity of your action rather than as a factor in mitigation of the offence.
I shall sentence you both on the basis that your senseless conduct was unpremeditated and occurred in circumstances where you were substantially affected by alcohol removing your inhibitions and impairing your judgment.
Lack of Remorse
Each of you lied to the police about your movements on this night and your knowledge of the deceased. You Mr Gill went to your cousin's home for some days to avoid the investigating police. You disposed of some of the clothes that you were wearing and lied to the police about what you had been wearing. Both of you have shown no contrition for your conduct on this night. You both sought to conceal your conduct from investigating police, and in Mr Gill's case by a detailed and false account of your movements. I take into account the possibility in your case Mr Mitchell that you suffered a loss of memory about the events of this night.
The knife wounds
Based upon the circumstantial evidence the Crown case was that you were both responsible for all of the injuries inflicted upon the deceased. The Crown submitted that it was fanciful to suggest that a third party had caused any of the deceased's injuries. By contrast it was submitted on behalf of each of you that I should not find you responsible for the knife wounds which would, if they were attributed to you, constitute an adverse circumstance. Mr Krincevski had received numerous deep stab wounds to the back and abdomen and his throat had been cut by a very large incision.
As I indicated during the course of submissions on the plea, I intend to consider the circumstantial evidence in conjunction with the testimony of Mr Stanbury who observed your conduct with the concrete pit cover. Mr Stanbury testified that he did not see either of you inflict any stab wounds and observed no stab wounds on the deceased's body. The question thus arises as to whether, as the Crown suggests, I should find both of you responsible for the knife wounds. The jury by its verdict were satisfied of each of the elements of the crime of murder. The jury verdict must, at the very least, have rested on the fact that you were both responsible for the blunt trauma to the deceased's head which was a cause of his death. The Crown's contention that you inflicted all of the injuries including the stab wounds was not necessarily determined by the jury. As it is not a fact inherent in the verdict it falls to the sentencing Judge to determine whether such fact has been established on the evidence. As it is a fact adverse to you I must be satisfied about it beyond reasonable doubt. (See Weininger v The Queen[4]; Olbrich v R[5]; Storey v R[6]; R v Cheung.[7]) I am not required to take the most lenient view of the evidence (see R v Hill[8] and R v Harris[9]) nor does the absence of persuasion about a fact favourable or adverse to the offender become the equivalent of persuasion of the opposite fact. (See Weininger v The Queen.[10])
[4](2003) 196 ALR 451.
[5](1999) 199 CLR 270 at 280.
[6][1998] 1 VR 359 at 369.
[7](2002) 76 ALJR 133.
[8][1970] VR 311.
[9][1961] VR 236.
[10]Supra at p.453 [24].
The learned prosecutor drew my attention to Mr Mitchell's prior conviction in 1974 in which you, Mr Mitchell had savagely assaulted and stabbed a young woman on a train and were sentenced to 10 years gaol. He further drew my attention to your prior conviction in April 1997 when you were arrested for being drunk outside premises in Fitzroy and upon being searched were found to have a military style bayonet concealed in your pants. Mr McArdle also pointed to some evidence that after you, Mr Mitchell went outside when Mr Gill and Mr Krincevski could be heard arguing, you re-entered your home for a few moments before following Mr Gill and Mr Krincevski down Oriel Road, the suggested inference being that you obtained a knife. Neither this evidence or these prior convictions permit any inference to be drawn that it was you who inflicted the knife wounds upon the deceased.
Mr Hartnett submitted that I should be satisfied on the evidence that after you both returned to the Mitchell home with Mr Stanbury, Mr Gill, who was then suffering from an ankle injury did not leave the premises and was observed to be lying down on the couch. Thus, Mr Hartnett submitted that it could not have been Mr Gill who returned to the scene of the crime and stabbed the deceased.
Mr Drake referred to two prior convictions of Mr Krincevski in 1996 and 1998 in which he was found to be in possession of a regulated weapon identified in the latter conviction as a pocket knife. He submitted that one explanation for the presence of a knife at the scene of the crime may well be that Mr Krincevski lost it in the course of a fight and the assailants used it on him.
I regard all of these hypotheses as little more than speculation. I am conscious that the pathologist's opinion was that the deceased was likely to have died within a very short time after he received the head injuries caused by the concrete cover, and that the stab wounds were inflicted whilst the deceased was still alive. A reasonable possibility is that one of you stabbed the deceased in the other's presence and that Mr Stanbury did not observe such acts. Another possibility is that Mr Stanbury deliberately omitted to make any reference to them. Another reasonable possibility is that after you walked back to Mr Mitchell's home with Mr Stanbury one or both of you returned to the crime scene and inflicted the knife wounds upon the deceased.
I am unable to conclude when, by which of you, and in what circumstances the stab wounds were inflicted. (See Weininger v The Queen[11]; The Queen v Olbrich[12]; R v Storey.[13]) By contrast to the present case, the facts adverse to the offenders in DPP v GAS & SJK[14] were found to be established by the plea.
[11](2003) 196 ALR 451.
[12](1999) 199 CLR 270 at 280.
[13][1998] 1 VR 359 at 369.
[14][2002] VSCA 131 [46].
As I am unable to be satisfied beyond reasonable doubt as to who it was that inflicted the stab wounds or as to when they were inflicted or in what circumstances I shall not take them into account as adverse facts in sentencing each of you.
Gill – aider and abettor
Mr Hartnett submitted on your behalf Mr Gill that I should treat you as only an aider and abettor to the murder of Mr Krincevski. It was never suggested during the course of the trial that the facts could support such a view. I was further invited to take the view that you had deliberately avoided hitting the deceased when you dropped the concrete pit cover near his head. No evidence was led during the trial to support the conclusion that your intention was to miss the deceased's head. In your interview with the police you Mr Gill had denied any knowledge of the deceased or that you were present when he was murdered. In your evidence before the jury you admitted leaving Lazo Krincevski as he was walking down Oriel Road toward Jellicoe Street. Mr Hartnett declined to call any evidence on your plea to establish such a claim. No evidence has thus been adduced to establish such a fact in mitigation of the offence. The level of your culpability, whether you be a principal or aider and abettor is to be determined by reference to the circumstances of the case and not by reference to your primary or accessorial liability. See R v Goundar[15]; R v Guthrie & Watt[16]; DPP v GAS & SJK.[17]
[15][2001] NSWCCA 198.
[16][2003] VSC 323.
[17][2002] VSCA 131.
The jury by its verdict must have found you Mr Gill to be acting in concert with Mr Mitchell. The Crown relied on the evidence that it was you Mr Gill who took Mr Krincevski outside and commenced arguing with him, and that it was you who must have had possession of the V can which you used to assault him in Oriel Road. David Mitchell observed you, Mr Gill in close proximity to Lazo Krincevski when he fell on to the road. Mr Stanbury observed you Mr Gill to first pick up the concrete block and drop it from above Mr Krincevski’s head as he was lying on the lawn. The comments made by each of you Mr Gill and Mr Mitchell when returning to the house with Mr Stanbury reveal that you had a common purpose in punishing the deceased for some wrong which you perceived he had committed.
There is no basis in my view for distinguishing between you in terms of your conduct towards Mr Krincevski. I am satisfied, as the jury undoubtedly was, that you were acting in concert.
Disparity between offenders
The learned prosecutor, correctly submitted that your conduct was relatively equal. It was further submitted by the Crown and conceded by Mr Drake on your behalf Mr Mitchell that a consequence of your very serious prior conviction in 1974 must be that I sentence you to a longer term of imprisonment than Mr Gill. Were it not for that prior conviction there would, in my view, be little reason to distinguish between you having regard to each of your involvement in the events leading to the death of the deceased.
Victim Impact Statements
The Victim Impact Statement that I have received from Vlado and Gorica Krincevski has enabled me in a more specific way to consider the matters that a sentencing judge would ordinarily consider in a broader context. The statement has provided a human dimension to the impact of this crime drawing attention to how those close to Mr Krincevski have been intimately affected by this terrible crime. According to the Victim Impact Statement the deceased was a fit young man who had achieved black belt status in the art of kick boxing. Lazo Krincevski was separated from his wife and he and his five year old daughter Shanita had lived with his parents for the last four years. It is evident that Lazo was greatly loved by his parents and his brother Michael. Their suffering and anguish was evidenced by their presence during most of your trial. Mr and Mrs Krincevski describe the various ways in which their loss has affected their lives. Michael has been devastated by the loss of his brother. Shanita has lost her father. Your conduct has left them with an incalculable loss which they will have to endure for the rest of their lives.
The Courts have a duty through the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who, by resorting to violence, destroy such life. There must never be any doubts about the commitment of the community and the Court through which it speaks to reflect the importance of human life through the imposition of substantial penalties where an offender unlawfully kills another. The fact that both of your judgments were impaired by the consumption of alcohol does not excuse your conduct for what was a senseless death which tragically and prematurely deprived a young man of his life.
I have made myself familiar with and have regard to the range of sentences which have been imposed in the courts over recent years for this very serious crime, bearing in mind that each situation must be approached separately and only general guidance can be derived from the sentences handed down in other cases.
Disposition - Mr Gill
Mr Gill, you have committed a very serious crime. In determining your sentence I have had regard to all of the matters put before me on your behalf and the sentencing considerations referred to in the Sentencing Act 1991. Pursuant to s.18(4) of the Act, I declare the period of 623 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its details be entered in the Court record. Mr Gill, for the murder of Lazo Krincevski I sentence you to 16 years imprisonment and I direct that you serve a minimum of 12 years' imprisonment before becoming eligible for parole.
Disposition - Mr Mitchell
Mr Mitchell, I take into account your family circumstances and your expected age upon release. In accordance with the submission made on your behalf I intend to impose a longer than normal parole period during which time you should be supervised and, if possible, conditions concerning the consumption of alcohol should be imposed. One can only hope that during your period of incarceration you will gain some greater insight into your dependence upon alcohol and its tragic consequences.
Balancing the principles of sentencing including just punishment, general deterrence, rehabilitation, and denunciation, I have concluded that the appropriate sentence is that you be imprisoned for a period of 18½ years and I fix a minimum period of 14 years before you become eligible for parole. I declare pursuant to s.18(4) Sentencing Act 1991 that the period of 623 days during which you have been in custody as pre-sentence detention be reckoned as having already been served under the sentence I impose and I so certify and direct that this declaration and its details be entered in the records of the Court.
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CERTIFICATE
I certify that this and the 18 preceding pages are a true copy of the reasons for Sentence of Redlich J of the Supreme Court of Victoria delivered on 26 September 2003.
DATED this 3rd day of February 2004.
Bronwyn Hammond
Associate to Redlich J.
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