R v Goldman
[2004] VSC 245
•27 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1504 of 2003
| THE QUEEN |
| v |
| MICHAEL GOLDMAN |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March to 24 March 2004 | |
DATE OF SENTENCE: | 27 May 2004 | |
CASE MAY BE CITED AS: | R v Goldman | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 245 | |
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Sentence – Attempted murder of police informer.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions. |
| For the Accused | Mr P. Chadwick | Slades & Parsons |
HIS HONOUR:
Goldman Plea
Michael Goldman was found guilty of attempting to murder Alexander Kudryavstev on 10 July 2002.
In the 18 months preceding July 2002 you, Alexander Kudryavstev and Yasik Moroz and others were jointly involved in committing burglaries and thefts, particularly in the south-eastern suburbs of Melbourne. The jury verdict was in all likelihood based upon this fact. I do not take such criminal activity into account as a matter affecting your sentencing, but it is relevant as bearing upon the motive for the present offence.
You disputed that you had been involved in any criminal activity with these or any other persons. As there was a substantial dispute on the plea as to this and other important facts upon which you should be sentenced, I have identified those facts which you alleged are in dispute.
Mr Kudryavstev and Mr Moroz at your direction burgled a factory in Moorabbin belonging to a man named Ilias. You disputed at the trial that you were a party to the burglary of Ilias’ factory. Ilias was a friend of a criminal named Nikolai Radev.
A meeting took place in May or June 2002 between you, Messrs Radev, Kudryavstev and Moroz in which Radev sought to have the property which was stolen from the factory returned to Ilias. Radev was told that the stolen property had been sold. The circumstances which led to your involvement in this meeting and whether Moroz was present were disputed by you at the trial. Subsequently police raided self-storage premises under the control of Mr Kudryavstev and Mr Moroz and recovered most of the stolen property.
On 5 July 2002 you, Mr Kudryavstev and at least one other person were arrested by police and separately interviewed in relation to various matters. Following those interviews you were all released. Prior to your release, but after the conclusion of the interview, Mr Kudryavstev indicated his willingness to provide investigators with information concerning his criminal activity and the activities of other persons including you.
Within the next few days Mr Kudryavstev spoke with investigators on a number of occasions and agreed to provide the police with detailed information concerning his and your criminal activity. He became a registered police informer.
Between 6 and 10 July 2002, you, Mr Kudryavstev and Mr Moroz met to discuss the implications of the allegations that had been put to you by police during the course of their interviews on 5 July 2002. Such a meeting, though initially denied by you, was admitted during your cross-examination. A suspicion existed that one of the members of the group had provided information to the police. During the course of this meeting you expressed the view that there must be an informer. You denied at the trial that there was any discussion at the meeting about an informer.
A submission made on your behalf on the plea that you did not realise that Mr Kudryavstev was a police informer until you received the brief of evidence towards the end of 2002 cannot be accepted.[1] You had testified that you observed two men that you realised were surveillance officers remove the tape recording device from Mr Kudryavstev as he lay on the nature strip.[2] The Crown relied primarily upon the evidence of Mr Kudryavstev and the content of the tape recording to demonstrate that you believed Kudryavstev was an informer before you shot him.
[1]Trial Transcript at 902.
[2]Trial Transcript at 446.
You alleged that on the day prior to the shooting of Mr Kudryavstev, Radev met with you and told you that the property of Ilias had been recovered in a police raid. In cross-examination you admitted that you had been questioned by police some days earlier about the police raid on the self-storage premises and told a quantity of goods were found there.[3] You alleged Radev complained that he had been lied to when he was told that Ilias’ property had been sold.
[3]Trial Transcript at 486.
Following your meeting with Radev on the day prior to the shooting, you met with Mr Kudryavstev and Mr Moroz in the afternoon to discuss the state of the police investigations and to plan further crimes. At the trial you disputed what was discussed and denied that Mr Moroz was present. You alleged that you told Mr Kudryavstev that you and Radev were upset because you had been told a lie about the stolen property being sold and that you would not have anything further to do with Mr Kudryavstev.
You alleged that the next morning 10 July 2002, you met with Radev and he asked you to arrange a further meeting with Mr Kudryavstev that day. You alleged you agreed to invite them both to your home. You alleged that Radev said he would come to your flat later that day.
You called Mr Kudryavstev and asked him to come to your home. Mr Kudryavstev said he would call you back. He later rang you and said he would visit you at 1.30 p.m.
After conferring with investigating police, Mr Kudryavstev suggested the conversation he would have with you should be recorded. A tape-recorder was taped to Mr Kudryavstev's body for the purpose of recording the discussions that were to take place between you that afternoon. Mr Kudryavstev then went to your flat at Highett Road, Hampton. What thereafter occurred was recorded, the tape recording and an English translation of the conversation becoming exhibits in the trial.
Immediately upon Mr Kudryavstev entering your apartment you shot him in the upper abdomen with a .32 Browning pistol which had been wrapped and concealed in a tea towel. The bullet travelled in a slightly downward direction causing serious internal injuries and lodging in Mr Kudryavstev's buttock. Mr Kudryavstev fell to the kitchen floor overturning the kitchen table which provided him with some protection. You unsuccessfully attempted to discharge the pistol on a number of occasions but the pistol jammed, probably because the tea towel became caught in the breech of the pistol.
The recorded conversation was to the effect that you accused Mr Kudryavstev of talking to others about you whilst Mr Kudryavstev denied doing so. You said that you would shoot Mr Kudryavstev dead. After a short time Mr Kudryavstev, despite his injury, was able to escape from the kitchen and run outside onto the street. As he did so, you again fired the pistol at Mr Kudryavstev before he had exited the flat. The bullet went through the front door and lodged in the door jam of the flat. Mr Kudryavstev ran out of the flat, stumbling out onto Highett Road. You followed close behind Mr Kudryavstev continuing to point the gun at him with the gun being covered by the tea towel. You were observed doing so by a woman driving past in a car and by a boy in an adjoining flat. Eventually Mr Kudryavstev fell onto the nature strip opposite your flat. You approached Mr Kudryavstev who was lying on his side on the nature strip and from a distance of about a metre, you again fired the pistol aiming at his head.
A plumber seated in a parked car close by observed you as you shot Mr Kudryavstev. Mr Kudryavstev turned his head at the instant the gun was discharged. The bullet left an entry and exit hole on Mr Kudryavstev's head, one being on Mr Kudryavstev's forehead and the other to the right-hand side of his nose, immediately below his right eye. You immediately returned to your flat whilst the plumber, the woman who had driven past and the police who were nearby came to Mr Kudryavstev's assistance. You were able to observe Mr Kudryavstev being attended to on the nature strip as you called the 000 emergency number stating that you had shot Mr Kudryavstev. You then returned to where Mr Kudryavstev was lying on the nature strip being attended to by various people. Mr Kudryavstev attempted to speak to a police contact via his mobile phone and you slapped the phone out of his hand. You told police who arrived at the scene that you had shot Mr Kudryavstev and you were then arrested.
It was not surprising, having regard to the nature of the Crown case alleged against you that you did not dispute that you had shot Mr Kudryavstev in the manner alleged. You gave evidence that you had been compelled to shoot Mr Kudryavstev because Radev had come to your flat bringing with him the .32 Browning pistol before Mr Kudryavstev arrived. You alleged that immediately before Mr Kudryavstev arrived Mr Radev produced an automatic rifle and threatened to kill you if you did not shoot Mr Kudryavstev in the head with the pistol. You claimed that Mr Radev concealed himself behind the sliding door in the lounge room when Mr Kudryavstev entered the flat. You claimed that you shot Mr Kudryavstev in compliance with Mr Radev's order but that you intended to miss Mr Kudryavstev and did not have an intention to kill or cause serious injury to Mr Kudryavstev. You further testified that you heard Mr Radev open the lounge-room window when Mr Kudryavstev ran out onto the street. I observe that the photographs tendered at the trial do not show an open window. Further, the photograph of the lounge room reveal a coffee table and plants very close to the window, at which you allege that Radev was standing.
You claimed that after Mr Kudryavstev ran out of the flat, Mr Radev further threatened you and your family if you did not go out onto the street and shoot Mr Kudryavstev. You allege you did as Radev directed. You said Radev took up a position at the lounge-room window looking out onto the street. You claim that under this coercion you went to the nature strip and discharged the pistol intending to miss Mr Kudryavstev. You swore that you had neither an intention to kill or to cause serious injury.
The jury, by its verdict, was satisfied that Mr Goldman intended to kill Mr Kudryavstev. There is no reasonable view of the evidence that could support a conclusion that your intent varied from the time you first shot him. On the plea, your counsel disputed the Crown submission that Mr Radev was not present and that you did not act pursuant to the threats of Mr Radev. I conveyed my view to counsel that I remained to be persuaded that there was a reasonable possibility that you acted under any coercion from Radev. Mr Chadwick was provided with an opportunity to address this matter by further submissions or the calling of further evidence.[4]
[4]Trial Transcript at 842 - 824.
Mr Chadwick reiterated on the further plea that the jury verdict was consistent with the jury accepting that you had been threatened by Mr Radev but that one or more of the elements of the defence of duress were not satisfied. He submitted that the jury may have concluded that you did not avail yourself of the opportunity to escape when you followed Mr Kudryavstev out onto the street. I regard this explanation for the jury’s verdict as highly unlikely.
The sentencing judge must find the relevant facts. GAS v R; SJK v R.[5] The facts must be found according to the relevant standard of proof depending upon whether it is a fact adverse to the offender or in mitigation. R v Olbrich;[6] Cheung v R.[7]
[5](2004) 206 ALR 116; [2004] HCA 22.
[6](1999) 199 CLR 270.
[7](2001) 209 CLR 1 at 9-11.
Despite the comprehensive submission by Mr Chadwick, there are compelling reasons why your account of how you came to shoot Mr Kudryavstev cannot be entertained as a reasonable possibility. Much of the evidence relied upon by the Crown was inconsistent with such an explanation and your account. I am satisfied that on each occasion that you discharged or attempted to discharge the pistol you were not acting under any coercion from Mr Radev.
Mr Kudryavstev was lured to your flat by you with the intention that you would kill him. You believed that Mr Kudryavstev had informed on you in relation to your criminal activity. Your anger and your desire to kill Mr Kudryavstev is evident upon listening to the recording.
Personal circumstances
You are presently aged 55 years of age having been born at Kiev in the Ukraine in 1948. Both of your parents were qualified engineers, your mother also being a qualified architect. Your father, by virtue of the system then operating in the former USSR had both a civilian occupation and was a captain in the Soviet Army. Both of your parents are now deceased. You have one sister who lives in Chicago although you have no contact with her.
You were educated to the age of 18 years. Being of the Jewish faith, there were restrictions imposed upon you and your family as to travel. Your family life was one of hardship and I accept that you had a difficult childhood and youth growing up during a period when anti-Semitism was rife in Russia.
At the age of 17 years, you were involved in a serious car accident and you suffered head and abdominal injuries. You were in a coma for some four days. After your recovery you suffered from blackouts and severe migraine headaches. You developed a bowel obstruction and underwent surgery on three occasions in the Soviet Union and once again since you arrived in Australia. As a consequence of the injuries sustained in your car accident you were precluded from performing any armed service in the USSR.
On the completion of your secondary education you obtained a Diploma in Electronics from the PURM Institute of Technology and you then worked as a technician involved in the assembling of telecommunications equipment. You also worked at various times in the building industry and obtained a position as a building supervisor. You married at the age of 21 years and had a daughter. When restrictions on travel for members of the Jewish faith were lifted you emigrated to Australia in 1980 at the age of 32 years.
At the time of your emigration, your mother also left Russia and joined your sister who had already emigrated to the United States. You chose to come to Australia arriving in Melbourne in February 1981 where you have lived ever since. You were able to utilise your work experience in Russia to obtain a position with Ericsson. It was your intention to bring your wife and daughter to Australia from Russia. In January 1982 at some risk, you returned to Russia to arrange for their emigration to Australia. You returned to Australia in early 1982. Your wife and daughter also travelled to Australia in 1982. They now reside in New South Wales.
Not long after their arrival, your wife began to demonstrate problems with her mental health and she was eventually diagnosed as suffering from schizophrenia. It appears that much of your time was taken up in looking after your ill wife and your young child. I was told on the plea that because of her mental condition, your wife was prone to making false allegations of violence and mistreatment against you resulting in police attendance on a number of occasions. In 1995 you were charged with the attempted murder of your wife, but the charge was dismissed at the committal proceedings.
Whilst working at Ericsson you sustained a back injury and were diagnosed with a disc prolapse and were hospitalised. You declined surgery and have had residual problems with your back. You received worker’s compensation from Ericsson using the lump-sum payment to purchase a family home in South Caulfield. You have attempted to perform light duties in different employs spending some three or four years as a salesman. You were subsequently employed as a machine operator with a curtain manufacturer. You briefly opened a pawn shop in Hawthorn and you were for a short period of time an AMP insurance agent. When you were not in employ, you were in receipt of Sickness Benefits and continued to support your wife and daughter in the house that you had purchased in South Caulfield.
In 1990 your wife obtained an Intervention Order against you and you were compelled to leave the family home. Your daughter who had by then completed her VCE travelled to the United States to live with your sister to attend university in Illinois. You were then divorced and you gave your wife the house. She continued to live in it until she moved to New South Wales where she currently resides. You have maintained ongoing contact with your daughter but you do not see your former wife. Your daughter keeps in touch with you by letters and phone calls and has continued to do so since you have been in custody.
You remarried in 1993. That relationship ended in late 1998. Following your release from prison in February 1999 you met your current partner, Tanya, and formed a relationship with her. She is obviously supportive and devoted to you and has been present throughout the trial. She is studying to become an accountant and is working part-time in a restaurant. You lived with her in rented accommodation in Hampton, being the premises at which the present offence was committed.
You have been in the habit of travelling to Sydney eight to ten times per year spending two or three days at a time in Sydney with your daughter and grand-daughter who live there. You would also travel to Adelaide six to seven times a year to stay with close friends.
You are an astute and articulate man who I accept has a deep concern about your family’s welfare. You have assisted many of your former countrymen who have experienced difficulty in assimilating within Australian society. You have proved yourself to be a loyal friend.
Hardship in custody
It appears that your life as a remand prisoner has been difficult. There were repeated lockdowns that sometimes continued for days on end. I accept that whilst on remand you were confined to your cell as a result of a lockdown on some seventy different occasions. It appears that the authorities, in calculating your eventual release date, will give you a credit of nineteen days for the period in which you have been subjected to lockdowns.
During your time in custody you have already completed a number of training programs in the industrial laundry, food handling and personal development. You are presently undergoing education courses in English, Mathematics and Computers.
You will probably be required to serve the balance of your sentence at Port Phillip or at Barwon Prison. I accept that it is unlikely that you will be allowed a lower level of security and would be treated, as Mr Chadwick submitted, as a high risk category prisoner who will not have a number of the privileges that other prisoners might enjoy. You will be treated as a high risk category prisoner because of your conviction for having attempted to murder a police informer and your alleged involvement with associates in criminal activity. I accept that you will experience difficulties in prison because of your age, accent, personality and ethnic background. As the Prison Chaplain called on your behalf testified, you are likely to “do it harder” than most other prisoners. I take into account your present age and your likely age at the time of your release.[8]
[8]R v Saw [2004] VSC 117.
Prior convictions
You have admitted a prior conviction on 7 December 1994 of intentionally causing serious injury for which you were sentenced to a term of imprisonment for three years and required to serve a minimum of 18 months imprisonment. The Crown and the defence made competing submissions about the circumstances of your conviction, but Mr Chadwick was to acknowledge that you had been convicted and sentenced on the basis of the Crown case that you had waited outside a reception centre with a knife and had ambushed the victim and stabbed him to the stomach.
You admit a further prior conviction on 29 January 1999 of making a threat to kill and threatening to inflict serious injury for which you were sentenced to a term of 6 months’ imprisonment on each charge. Those sentences were to be served concurrently with the sentence then imposed upon you for breach of a prior suspended sentence imposed on 2 June 1998 of three charges of attempted theft and being a reputed thief found loitering in a public place.
Your prior conviction of making a threat to kill was uttered to the owner of a panel beating business to whom you made a demand for protection money of $500. That demand, made by telephone was the subject of a recording and a portion of your threat was read to me by the learned prosecutor.[9]
[9]Trial Transcript at 827 - 828.
Mr Chadwick submitted that the incident had arisen in the context of a business dispute between you and the mechanic who had been paid money to work on some used cars which you and some colleagues had imported from Japan. Although the background facts are in dispute the threat is not. You were sentenced on the basis that you had made a serious threat to kill.
You had other prior convictions including a conviction for intentionally causing injury on 5 February 1998 for which you were sentenced to be imprisoned for four months such sentence to be served by way of an Intensive Correction Order. I was told on the plea that this prior conviction arose following a drunken argument when you struck your wife. You pleaded guilty to intentionally causing injury. You thereafter separated from your wife. It was during this difficult period that you committed a number of offences for dishonesty and commenced to associate with former countrymen whom Mr Chadwick described as petty criminals.
It is not disputed that you are a serious violent offender within the meaning of the Sentencing Act. Section 6D Sentencing Act 1991 provides that the Court must have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed. The Crown submitted that because of the very serious nature of the attempted murder, the sentence I should impose should not be longer than that proportionate to the gravity of the offence with which he has been found guilty as it is an offence in the highest category of attempted murder. Mr Chadwick acknowledged that if Mr Goldman was sentenced on the basis that you had attempted to eliminate Mr Kudryavstev as a police informer it should be regarded as a serious case of attempted murder.
Although you fall within the definition of a serious violent offender I am not obliged to ignore proportionality when imposing a sentence upon you.[10] The discretion to do so should only be exercised where the trial judge is satisfied that the offender will remain a danger to the community beyond the period for which the offender would by that sentence be detained. As the sentence which I must impose will be a substantial one, partly because of the application of the principle of special deterrence, I do not regard it as necessary to invoke the provisions of Part 2A Sentencing Act 1991. R v Natoli;[11] DPP v McCullagh;[12] DPP v McIntosh.[13]
[10]Connell v R [1996] 1 VR 436 at 443 - 444 per Charles JA.
[11][2001] VSCA 243.
[12][2000] VSC 554.
[13][2004] VSC 75.
Absence of remorse
At no time since you shot Mr Kudryavstev have you shown any remorse or sympathy for shooting Mr Kudryavstev.
It was the Crown submission that this attempted murder must be placed in the highest category of such offences and that the sentence to be imposed must reflect the fact that an attempted murder by one criminal of another criminal is not regarded by the law as less culpable than an attempted murder of a law abiding citizen. The Crown submitted that having regard to the importance of informers to successful criminal investigation, those who might be minded to murder an informer must be discouraged. The learned prosecutor submitted that this was a cold-blooded and pre-meditated attempt to execute an informer who you believed would give evidence against you and your criminal associates. The appropriate sentencing range suggested by the learned prosecutor in response to my inquiry, invited the consideration of a sentence which my research indicates would be higher than any previously imposed for this offence.
The Crown has established, consistent with the jury's verdict, that your motive for attempting to kill Mr Kudryavstev was to stop him informing to police and to prevent him being a witness against you or other persons jointly involved with you in criminal activity. You viewed Mr Kudryavstev as disloyal – as one who had broken the code of silence. The sentence which I must pronounce must reflect both the seriousness of an attempt to take the life of another human being and also the motive for doing so. I agree with the learned prosecutor’s submission that I must view your decision to kill a potential witness against you as a serious case of attempted murder.
The fact that Mr Kudryavstev was, by his own admission, a criminal, is irrelevant. The notion raised during the trial that there is a different form of justice where the victim is a criminal does not reflect the law or the policy which underlies it. General and specific deterrence remain primary considerations where the victim is a member of a criminal group. There is no separate system of justice for criminals. The full weight of the law must be brought to bear whether the victim is a law abiding citizen or a criminal. Each is entitled to the full protection of the law.
A further argument was raised during the trial before the jury, that the victim should somehow be penalised for the fact that he had received immunity from prosecution by virtue of his cooperation with the investigating police. Those who assist police with information perform a critical and invaluable service. Such conduct must be encouraged. The Court must, by the sentence it imposes, deter those who would resort to violence against a member of the community who provides assistance in the investigation and prosecution of crimes.
The maximum penalty for attempted murder was 15 years’ imprisonment under s.14 Crimes Act 1958. Under the Crimes Amendment Act 1985, s.14 Crimes Act 1958 was repealed, but the maximum sentence for attempted murder remained the same.[14] In 1991 further amendments to Crimes Act 1958 were introduced. By s.321P Level 2 Imprisonment (20 years) was specified as the penalty applying to attempts to commit Level 1 Imprisonment offences (murder).[15] In 1997 the Sentencing and Other Acts Amendment Act amended Level 2 Imprisonment to 25 years.
[14]Section 4 Crimes Amendment Act 1985.
[15]Section 24 Sentencing Amendment Act 1993 inserted a new s. 321P clarifying the penalty for attempted murder was Level 2 Imprisonment.
The learned prosecutor referred me to a number of heavier sentences imposed in recent years for attempted murder.[16] In determining the appropriate sentence I have had particular regard to the views expressed by the Court of Appeal in R v Boaza;[17] R v Kelly;[18] DPP v Adajian.[19]
[16]R v Cavus, [2003] VSC 288 per Harper J, 30 July 2003 - 11 years 6 months’, minimum 8 years; R v McIntosh supra per Cummins J, 16 March 2004 – 2 counts of attempted murder and one count of armed robbery, 24 years with a non-parole period of 20 years; The Queen v Vuocolo, [2003] VSC 472 per Coldrey J, 19 November 2003 - 8 years, minimum 5 years.
[17][1999] VSCA 126.
[18][2000] VSCA 59.
[19][1999] VSCA 105.
In fixing the appropriate sentence, I have taken into account the considerations set out in the Sentencing Act 1991. I have had regard to both the objective gravity of your offence and your personal circumstances. The sentence which I impose must manifest the Court’s denunciation of this type of conduct and make adequate allowance for both general and specific deterrence. Pursuant to s.18(4) of the Act, I declare the period of 688 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 into the Court record. Mr Goldman, for the attempted murder of Alexander Kudryavstev I sentence you to 14 years’ imprisonment and I direct that you serve a minimum of 11 years’ imprisonment before becoming eligible for parole.
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