R v Gojanovic
[2002] VSC 467
•19 September 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1494 of 2001
| THE QUEEN |
| v |
| DENIS PAUL GOJANOVIC |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 AUGUST 2002 | |
DATE OF SENTENCE: | 19 SEPTEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. GOJANOVIC | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 467 | |
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SENTENCE – Murder – Victim former de facto wife – Offender concerned to obtain custody of child of union – Intrusion into victim's home – Violent and sustained attack – No remorse – Importance of general deterrence – 20 years' imprisonment with a non-parole period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. Leckie | Office of Public Prosecutions |
| For the Accused | Mr. A. Lewis | Michael Brugman & Associates |
HIS HONOUR:
I will make the orders that were sought on the last occasion, the forensic sample order was by consent, and I make that order. I also make the disposal order subject to the caveat that Mr Lewis placed on it at the time.
MR LECKIE: Thank you, Your Honour.
HIS HONOUR: Denis Paul Gojanovic, having been found guilty by a jury of the murder of Angela Farnsworth at Belmont on 12 March 2001, it is now my responsibility to sentence you.
In determining the appropriate sentence it is necessary to canvass the circumstances surrounding the commission of this offence. You met Angela Farnsworth in 1995. At that time Ms Farnsworth had three children aged between six and two from two previous marriages. You lived together at a number of addresses including Corio, Newcomb, St Leonards, Herne Hill and Pavo Street, Belmont. In October 1998, when you were living at Herne Hill, a child Nicholas was born from your association. In September 2000, one of the children from Angela's marriage to Mark Farnsworth returned to live with his father. In October 2000, Ms Farnsworth rented a property at 68 Pavo Street, Belmont where you stayed from time to time but you were not residing there at the time of Ms Farnsworth' s death.
During 2000, your relationship with Ms Farnsworth was deteriorating. On the evidence the family experienced constant financial difficulties. Your own income was derived from part-time work as a music teacher, a short stint as a courier, and the infrequent engagements of a band in which you played the guitar. The family income was augmented by government assistance and maintenance, however, the financial situations was exacerbated by Ms Farnsworth's addiction to gambling on poker machines. One manifestation of the financial problems was the family's eviction from Herne Hill because of arrears of rent.
Efforts have been made over time by Ms Farnsworth's brother, Mr Chris Denmead, to assist the family in its financial management. These efforts proved largely unsuccessful.
Apart from financial problems, Ms Farnsworth had health problems. For example she was on medication to compensate for the removal of her thyroid and to treat a panic disorder from which she suffered.
There was a considerable act of evidence during this trial about verbal arguments between you and Ms Farnsworth. These arguments were on such topics as money and your lack of employment. The preponderance of evidence is that, on such occasions, Ms Farnsworth was highly critical of you and frequently put you down, while you endeavoured to diffuse the situation rather than argue back. However, in about July 2000 this discord spilled over into violence. In the course of an argument, you grabbed Ms Farnsworth by the throat and threatened to hit her with a hammer. She suffered bruising and, thereafter, frequently expressed fear of you. You expressed your remorse for what had occurred to several people. Despite this incident, your association continued and there was evidence of your care of the children, including feeding and baby-sitting them and driving them to and from school. Your concern for their well-being and specifically that of your son Nicholas, was deposed to by Ms Farnsworth's previous husbands Robert Mitchell and Mark Farnsworth. From your perspective there were issues as to whether the children were being adequately supervised and as to the amount of money available to feed and clothe them. You regarded the genesis of those problems as being Ms Farnsworth's gambling habit. To your knowledge a compliant to the Department of Human Services was made in July 2000 by Mark Farnsworth. It was investigated and no action was taken.
There was a vast amount of contradictory evidence about Angela Farnsworth's capacity as a mother. For example Mark Farnsworth had a catalogue of parenting complaints, whilst Robert Mitchell was generally satisfied with Ms Farnsworth's performance. Much of the criticism appears to me to relate to the untidiness of the household run by a mother who had to cope with four children aged between two and 11 years.
Witnesses who may be regarded as independent such as Neville and Margaret Hill, the deceased's neighbours at Pavo Street, describe the children as healthy and happy and well dressed. The independent evidence was unanimous that Ms Farnsworth adored her children and they in turn adored her.
I accept that your concerns for the well-being of the children, (particularly Nicholas), were genuine, and, on 23 February 2001, these were to some extent magnified when Nicholas accidentally took an overdose of his mother's medication Alprazolam and required treatment at Geelong Hospital.
On 6 March 2001, you removed what remained of your belongings from the Pavo Street house, apparently at Ms Farnsworth's directions. Nonetheless on the following evening you took Nicholas away on an agreed access visit. It is not clear as to the precise date you were required to return Nicholas. The evidence is that when you failed to do so, Ms Farnsworth consulted a police officer on 8 March, and a solicitor on 8 or 9 March, regarding custody of the child.
Also on 8 March, an arrangement had been entered into between the estate agent responsible for leasing the Pavo Street house and Ms Farnsworth whereby arrears of rent of one month were paid by her father, Mr Brian Denmead, and proceedings for vacant possession of the property at the Residential Tribunal were adjourned.
An insight into your attitude towards Ms Farnsworth and your desire at this time to retain custody of Nicholas may be gauged by your attendance at the Tribunal where, in urging that Angela, (and of course her children), be evicted from the property, you told the presiding member, among other things, that Angela was a bad tenant and had not kept the property in good condition. (The latter proposition is not, I should say, borne out by the photographic evidence).
According to your sister Assia Baban, you stayed with her between 6 and 12 March. You expressed yourself as unhappy at having to return Nicholas because of your view that Angela was not coping and was unable to look after Nicholas properly. However, your sister told you on the evening of 11 March, that you should take Nicholas back and sort things out with Angela bearing in mind the future welfare of Nicholas. In your record of interview you told police of your sister expressing the view that you should not go for custody of Nicholas and that if you obtained custody you would not be able to live at her house. Your mother, Graziella Gojanovic, also told you on the night of Sunday 11 March, that your son should be with his mother. These were not sentiments you wished to hear having gone to a solicitor some days previously to discuss having custody of Nicholas at least 50 per cent of the time.
The evidence at your trial of the events of the late evening of 11 and early morning of 12 March was as follows. At about 10.30 p.m., while in the Geelong area, you rang Ms Farnsworth's friend Susan Gladwell in an unsuccessful attempt to locate Angela. Shortly thereafter, at 10.57 p.m., you rang Robert Mitchell questioning him about Angela's financial situation. You were told that her brother Chris was going to assist with her finances.
The telephone records indicate that you then rang the Pavo Street address on your mobile phone at 1.51, 2.45 and 3.36 a.m. At around this time you were sitting off the Lord of the Isles Hotel having observed the car of Ms Farnsworth's uncle parked there. At about 4 a.m. Ms Farnsworth left the hotel accompanied to that motor vehicle by Mr Craig Hay, a member of the hotel staff. She had asked him to escort her to her car because of a professed fear of you. Similar sentiments had previously been expressed by Ms Farnsworth to Henry Vuik, a gaming attendant at the Great Western Hotel. Earlier, on 10 March, Ms Farnsworth had informed another staff member at the Lord of the Isles Hotel, Ms Cheryl Marshman, that she was having serious domestic problems with her ex-boyfriend being you who was hassling her.
When Ms Farnsworth drove off, you, in effect, followed her to Pavo Street. You parked your car around the corner where it could not been seen by Ms Farnsworth and entered the house by the side door. This door may well have been unlocked since there was an arrangement for Ms Farnsworth to later go out for a cup of coffee with Mr Hay.
As to what happened next there is only your account to investigating police, the evidence of neighbours, and what may be reconstructed from Ms Farnsworth's injuries. At about 4.15 a.m. the neighbour Mr Hill heard a loud yell which he recognised as Angela's voice. He dozed off but his wife deposed to hearing five or six screams from Angela as well as what she believed was a male voice. About ten minutes later Mrs Hill heard footsteps leaving the premises via the back door. At about 4.40 a.m. the telephone commenced to ring constantly, ringing out on each occasion. Three such calls were from Mr Hay. By this time Angela Farnsworth was dead.
Your version of events was that you went to Pavo Street to confront Ms Farnsworth about her gambling. You also said you told her you wanted to talk about what was going to happen with Nicholas. Her reaction was to tell you that you would never have Nicholas and to get out or she would ring the police. You stated that at that point you lost control of yourself. You mentioned a wrestle with Ms Farnsworth, but it is unclear whether this occurred when you first confronted her or at a time when you had obtained a rubber mallet that was kept in the house. You hit Ms Farnsworth at least seven blows to the head with that mallet. Based on the forensic evidence, at least two of those blows occurred when the deceased's head was near the floor. One of the blows caused a fracture of the skull. Having disabled Ms Farnsworth with a mallet, you removed the cord of her dressing gown, wound it twice around her neck, pulled it back over itself and exerted sufficient pressure to strangle her.
In an endeavour to protect yourself from discovery, you took the rubber mallet with you and disposed of it in a garbage can somewhere between Portarlington and St Leonards. Similarly, on arrival at your sister's house, you washed the blood from your trousers. Later that morning you commenced to lay a false trail by ringing Angela's friend Sue Gladwell at about 9.25 a.m. to ask if Angela was with her. You told her you needed to catch up with Angela that day and that your sister had told you that you could not stay at St Leonards unless you returned Nicholas to Angela. Shortly afterwards as part of your charade you arrived at Pavo Street with Nicholas. It is perhaps fortunate for Nicholas you were intercepted by police before you could enter the premises. Having been alerted by Mr Hill, they had discovered Ms Farnsworth's body shortly after 6 a.m.
You went as directed to the Geelong Police Station where you made a statement peddling a false account of your activities during the relevant period. That version of events was persisted with throughout most of your subsequent videotaped interview, and it was only when it became clear to you that you could not sustain this fabricated account of your movements that you confessed your involvement in this offence.
It is impossible to determine how much of your version of events the jury may have accepted. Clearly the jury rejected any assertion that the killing fell within the scope of legal provocation. The evidence is insufficient to demonstrate that you intended to kill Ms Farnsworth prior to entering the house. There is nothing in the material to suggest that you came armed with any weapon and although you parked your vehicle around the corner, this is consistent with a desire not to alert Ms Farnsworth of your impending presence. In any event, it was conceded by the Crown that it was unable to prove premeditation. I think the probabilities are that when you entered the house you were already in a highly emotional state. This was caused not only by your anxiety about the future of your son Nicholas, but by your desire to have a prominent role in it. The indication by Ms Farnsworth that this might be in jeopardy translated into anger towards her and, as had happened about eight months earlier, in July 2000, your anger exploded into violence.
It was contended on your behalf that your mental state was affected by a hypoglycaemic attack, (known colloquially as a "hypo"), to which you, as a brittle diabetic were susceptible. Faced with what you regarded as the potentially disastrous effects of losing Nicholas to his mother, you acted instinctively in a blind rage rather than having formed any intention to kill or cause really serious bodily injury. Additionally it was thought to use the hypoglycaemic state as contributing to a loss of self-control in the face of the deceased's reported provocative behaviour.
The jury must be taken as having rejected the proposition that you suffered from any hypoglycaemic episode at the time of the killing. That is not at all surprising. Although questioned by the police about the effects of your diabetes, you never told them that you experienced such an episode at the time of the killing. Further, you did not tell Dr Cameron Profitt, the forensic medical officer who examined you at 2.50 p.m. on 12 March, and took a history of your diabetes, that you had a "hypo" earlier that morning. After you had been charged and remanded in custody, you spoke with a prison informer Phillip Wickham. According to him you claimed that you could not remember anything because your blood sugar levels were low. The record of interview belies your lack of memory. Additionally you said your blood sugar level was 1 to 1 and a quarter. When asked how you knew that you replied that you just knew when the levels were like that. Later, according to Mr Wickham, you told him that your low blood sugar was your prime case in avoiding the charges.
The glucometer readings produced at the trial, on their face, did not assist your cause since the readings at 12.14 a.m. and 7.56 a.m. on 12 March were both high ones. However, the hypothesis was advanced that having taken long acting Protophane insulin the previous evening, the injection of a dose of Actrapid insulin shortly after 12.14 a.m. on 12 March could have brought on a low reading, (or hypoglycaemic episode), about the time of the killing. Whilst the medical experts accepted that this was so in theory, they questioned the necessity for any does of Actrapid at that time having regard to the ongoing effects of the Protophane. As it was, there was no evidence whatsoever of such an injection having occurred. It was sought to float an inference that, as a matter of practice, a blood test would necessarily be followed by an injection of insulin. However, the witness upon whom this proposition was founded, a Monica Ivelja, gave evidence to the effect that, in her experience, you did not always inject yourself after conducting a test. More telling was the passage in your record of interview where you disavowed taking any drugs or prescribed medication during the relevant period. Finally, the united medical opinion of Drs Odell, Sowerby and Profitt, was to the effect that you could not have performed the relatively complex combination of acts surrounding and involved in this killing if you had been suffering from a hypoglycaemic episode at the time.
I should add that, on your plea, Professor Geoffrey Nicholson, a highly credentialled endocrinologist gave expert evidence of the physiology and possible psychological impact of hypoglycaemia. Insofar as that evidence was predicated upon your having taken Actrapid early on 12 March, it could not advance your cause. Further, unlike the doctors who testified in your trial, Professor Nicholson was unaware of your activities during the period surrounding and including this offence. Consequently he could express no concluded opinion as to the likelihood of hypoglycaemia at the relevant time.
Whilst I regard this defence as lacking in substance, you are not to be punished for that; nor are you to be punished for the denigration of Ms Farnsworth which was a prominent component of the defence case. However, what is clearly discernible on all the materials is an attempt to deflect your responsibility for this offence and seek to attribute what has occurred to the stresses occasioned by the deceased's parental failures and the deleterious effects of hypoglycaemia. It is in this context that I am unable to discern any significant level of remorse for what you have done. This is despite the impression you may have given to the clinical psychologist Mr Ian Joblin, who prepared a report and gave evidence on your behalf.
I have already stated that there is insufficient evidence to make any finding that you went to Ms Farnsworth's house with the intention of killing her. However, the offence is aggravated by your uninvited intrusion into the victim's home. Although the truth about what precisely occurred is unlikely ever to be known, it seems clear enough that, faced with your unwelcome presence, some form of confrontation occurred. Given her professed fear of you and her inability to retreat further from your presence, Ms Farnsworth may very well have threatened to call the police. You then subjected her to a vicious and sustained attack. On your own account it involved obtaining and using the mallet. If that activity does not, itself, demonstrate a determination to kill Ms Farnsworth, your subsequent actions in retrieving the dressing gown cord and strangling her with it, certainly does. The fact that this attack occurred in what should have been the safety of Ms Farnsworth's home, is an aggravating aspect of this offence.
The only mitigating factor which may be discerned on the material before the Court, is your state of emotional turmoil at the time fuelled as it was by what you perceived to be the threat to Nicholas' future welfare and your participation in it. Nonetheless, this is a grave offence.
Your background, which is devoid of any prior convictions, together with the very personal nature of this offence, suggests that, in your case, specific deterrence need not be given very great weight. However, violent responses to emotional problems associated with domestic relationships, cannot be tolerated by the courts. Custody disputes are to be resolved by the courts - not by private aggression. The courts have a duty to deter those who may be minded to resort to violence as a problem solving technique. Consequently general deterrence is an important element in any sentence to be imposed.
In considering the appropriate sentence, there are matters personal to you which I must take into account. Before doing so, however, I would like to say something about the deceased and her family.
Angela Farnsworth was aged 31 years at the time of her tragic and untimely death. The Victim Impact Statements from her family describe a family oriented, caring and compassionate person. Each member of her family has been affected by her death. Her parents, Brian and Shirley Denmead, lost not only a daughter but a friend and the only one of their children residing in Geelong. Both have had to cope with unwanted publicity, the trauma of this trial, and a gamut of emotions ranging from anxiety and grief to fear and anger. Not surprisingly their health has suffered. Angela was very close to her brother Chris Denmead, whilst to his wife Kate she was like a sister. Both were devastated by her death. In his Victim Impact Statement, Mr Denmead recounts the health problems which Angela had to confront in recent years. The legacy of this loss to her sister Tracey Dowie has included a huge emotional burden. Apart from having to confront her own pain and heartache there is the added concern she feels for her parents. One result of Angela's death has been the splitting up of her children. It is clear that the elder three children are missing each other and their mother acutely. The effects on Nicholas, who was only two at the time, is as yet unknown. In a Victim Impact Statement Adam, the eldest child, describes missing a mother who was his best friend and writes of her love and care for him. Angela Farnsworth's death, and the manner in which it occurred, is something from which her family will never fully recover.
Denis Gojanovic, you are presently 38 years old. You were born in Geelong. Your father is Croatian and mother Italian and your parents came to Australia in 1956. You had a brother 15 years your senior who has been deceased for some years and an elder sister Assia with whom Nicholas is now living. Your father was a shift worker at Ford Geelong and his long hours of employment left little time for parental contact when you were young. Consequently you were never close. Your father is now physically and mentally disabled. You have had a close relationship both with your mother and your sister. Both remain very supportive of you.
You were educated at the Holy Family Primary School in Bell Park and later attended Bell Park Technical School. You completed Year 11 in 1981 passing trade subjects. Thereafter you worked for a shower screen company in Williamstown for two years and for a similar period as a bricklayer's labourer. You then commenced as a courier with a firm "Couriers Please" rising to the position of Regional Manager. In late 1987, having earlier been diagnosed with diabetes, you could no longer continue that work. Once your condition had stabilised you worked for the Ford factory in Geelong until 1989. That was your last full time job.
You are a self-taught guitarist and from 1981, you played throughout Victoria in various bands with such titles such as Physical Graffiti, Too Hot to Handle and Yard Dogs. In 2001, you were a member of a band called The Bite. You were also teaching music with a firm A & B Music.
As a result of a relationship which you commenced in 1985, a son Daniel was born in November 1986. That relationship ended in 1989, and having ultimately obtained custody of Daniel, you stayed at home to look after him. Subsequently from the time Daniel was three years old his upbringing was undertaken by your parents. As a result of the separation from your then partner, the financial burden of house payments and Family Court costs caused you to become bankrupt in 1989.
It is reported in his evidence to this court Mr Joblin attributed your desire for a good relationship with your son Nicholas to the lack of positive father/son interaction you had felt as a child. You now feel very keenly that, through your actions, you have destroyed that objective. Mr Joblin further stated that you are not psychotic and have no specific psychological problems. Further, he regarded you as having a good intellect.
A number of people provided written references and gave character evidence on your behalf. Members of the family who operated the Blue Seas Cafe and became your friends described you as a caring, kind, generous and as having a gentle manner.
Dr Sowerby, your GP, wrote of you being a caring father. He had never seen you in an angry or aggressive mood and, in effect, he regarded this offence as out of character. Dr Sowerby also spoke of the support that you had given Ms Farnsworth with her medical and psychological problems.
Your activities as a caring father was spoken about by Trevor Drew who also said that you were placid and non-aggressive. He described your assistance to young people at St Leonards Football and Cricket Club. You had also played cricket for that club.
Ms Leanne Calenzo told the court of your involvement with the Portarlington Pre-School and willingness to provide assistance to this group. To Conrad Morell and Wilhelm Van Parrern, who employed you as a music teacher, you were both a proficient guitarist and dedicated teacher respected by your students. Both spoke of your dedication to your children. This theme was taken up by Latitzia Grdovich, Jillian Johnstone, Mark Farnsworth, your sister Assia Baban and Francis O'Day, (a St Leonards neighbour). Mr O'Day also spoke of your excellent reputation in the St Leonard's community. These witnesses also expressed the view that the acts of violence perpetrated by you were out of character.
As I have already indicated, you have no prior convictions whatsoever. This, together with your essentially non-violent history, your reasonable work record, your contribution within your community, and your level of intelligence, indicate that your prospects of rehabilitation are good. This also bears upon the weight to be given to specific deterrence.
You are also fortunate in having the on-going support of your family and friends. The fact that you suffer from diabetes was also raised as a matter to which the Court should have regard in sentencing you. Although being a brittle diabetic has, on occasions, made life difficult for you, the regulation of your medical condition will be no more onerous in prison than in the outside community.
Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of 20 years. I fix a minimum period of 15 years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 556 days, inclusive of today's date. I direct that there be noted in the records of the Court that the fact that such declaration is made and its details.
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