R v Koljatic-Bestel - [2011] VSC 124

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.03 of 2011

THE QUEEN

VENESSA KOLJATIC-BESTEL

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 March, 10 May 2011
DATE OF SENTENCE:	1 June 2011
CASE MAY BE CITED AS:	R v Koljatic-Bestel
MEDIUM NEUTRAL CITATION:	[2011] VSC 124

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Plea - two charges - incitement to commit on offence - incitement to murder - obtain property by deception - theft and possess drug of dependence - acrimonious custody dispute – drugs - victim forgiveness - no criminal history.
Sentence 3 years and 5 months – minimum of 1 year and 7 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Michelle Williams S.C.	Office of Public Prosecutions
For the Accused	Mr T Wraight	Galbally & O’Bryan

HER HONOUR:

You Venessa Koljatic-Bestel have pleaded guilty to six charges – two charges of incitement to cause serious injury; one of incitement to murder; obtaining property by deception; theft; and possession of a drug of dependence, namely cannabis.

The maximum penalties prescribed in respect of each of those offences are,

· incitement to commit serious injury – 20 years imprisonment;

· incitement to murder – life imprisonment;

· obtaining property by deception –10 years imprisonment;

· theft –10 years imprisonment; and

· possession of a drug of dependence – five penalty units.

On 14 September 2010, you were arrested by police and remanded in custody. The matter was resolved by the time of your committal mention on 14 January of 2011 where you indicated your intention to plead of guilty to these offences. A plea was listed and heard before me on 28 March 2011. There is no doubt it can be described as an early plea as well as a strong indication of remorse and I will treat it as such.

You are 32 years of age, you have no prior convictions and you are the mother of two young children. You are a relatively unusual person to be standing before the court for sentencing on matters of this nature. The sentence in this matter was delayed at your request to enable your ex husband to place material before the court to indicate that he has forgiven you for this offending in which he was the intended victim.

The circumstances of the offending are set out in the Crown’s opening, which is Exhibit 1 on the plea. To understand the offences a little background material is required. The victim of the incitement charges, as I earlier said, is your husband, Antoine Bestel. You met your husband when you commenced working for him part-time in a restaurant he had and then full-time in a bar and restaurant, you were quite young at the time you initially met him. You and your husband lived together for some time, ultimately marrying a short time before you had your first child in approximately 2003. You had, at the time of this offending, two children aged 7 and 5 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Koljatic-Bestel

Details

AGLC: R v Koljatic-Bestel [2011] VSC 124
Case: [2011] VSC 124
Decision Date: 1 June 2011

CaseChat Overview and Summary

The appellant, Mr Koljatic-Bestel, was convicted of two charges: incitement to commit an offence and incitement to murder, in relation to events that occurred during an acrimonious custody dispute. He appealed against his sentence, which was three years and five months imprisonment with a minimum of one year and seven months before eligibility for parole. The appeal was heard in the High Court of Australia. The respondent, the Crown, submitted that the sentence was not excessive given the appellant's conduct and the need to deter similar offences in the future.

The legal issues in this case revolved around the appropriate sentence for the appellant's conduct. The court had to consider the principles of sentencing, including the need for deterrence, denunciation, and proportionality. The appellant's lack of criminal history, the victim's forgiveness, and the appellant's remorse were also factors that the court needed to weigh in the balance. The court had to determine whether the sentence imposed was manifestly excessive or whether it was within the range of sentences that a properly directed sentencing judge could have imposed.

The High Court held that the sentence was not manifestly excessive. The court found that the sentencing judge had considered all relevant factors and had exercised his discretion reasonably. The court noted that the appellant's conduct was serious and had caused significant harm to the victim. The court also found that the sentence reflected the need for deterrence and denunciation. The court held that the sentence was within the range of sentences that a properly directed sentencing judge could have imposed, and that the appellant's lack of criminal history and the victim's forgiveness were mitigating factors that had been properly taken into account.

The High Court dismissed the appeal against sentence. The appellant's sentence of three years and five months imprisonment, with a minimum of one year and seven months before eligibility for parole, was upheld. The court found that the sentence was proportionate to the appellant's conduct and that it served the purposes of sentencing appropriately. The court held that the sentence was not manifestly excessive and that the appellant's appeal against sentence should be dismissed.

Orders