R v Koltuniewicz
[2013] VSC 650
•19 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0154
| THE QUEEN |
| v |
| BADEN KOLTUNIEWICZ |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2013 | |
DATE OF SENTENCE: | 19 December 2013 | |
CASE MAY BE CITED AS: | R v Koltuniewicz | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 650 | |
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CRIMINAL LAW – Sentencing – Defensive homicide – Deceased was initial aggressor – Deceased was unarmed – Accused stabbed deceased repeatedly with a knife – Anxiety disorder – Guilty plea offered at early stage – Genuine remorse – Numerous prior convictions, including for violence – Some prospects of rehabilitation – Sentence of 8 years and 6 months’ imprisonment with a non-parole period of 6 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hassan | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC | Ann Valos Criminal Law |
HER HONOUR:
On 6 April 2013, your brother, Grant Koltuniewicz, died as a result of injuries you inflicted on him. You have pleaded guilty to one count of defensive homicide. It is now my duty to sentence you for that offence.
At the time of the offence you were 31 years old, unemployed, and living temporarily with your father, Larry Kolton, and your father’s boarders, at a house in Seabrook.
Your brother, Grant, was 28 years old. He was living elsewhere, but was also spending quite a lot of time at your father’s home.
Grant was a concreter by trade. He had been in a rather volatile relationship with a woman. Unfortunately, a year or two earlier, he had started using the drug “ice”, as a result of which he was no longer the hard worker he had once been, he had become aggressive, and started hanging out with people of whom the family did not approve. However, according to your father, since the previous Christmas, Grant was showing some signs of improving and getting his life back on track.
On the evening of Saturday, 6 April 2013, you were in the back living area of the house, which was being used as a bedroom.
Grant arrived at the house some time between 7.30 pm and 8.00 pm. He went into the front room, and chatted briefly with your father and one of his boarders, Graeme Gregor, who were watching football on the television. Grant then asked them where you were, and they directed him to the back room.
Minutes later, Mr Gregor heard arguing and loud bangs from the back room. Shortly thereafter, Grant came staggering into the hallway, where he collapsed, bleeding heavily. You followed Grant out of the room and went over to him, distraught, and saying you were sorry.
Your father called “000”. When police arrived, you were kneeling over Grant, crying uncontrollably, and repeatedly asking for help for him.
When the ambulance paramedics arrived, shortly before 8.30 pm, they also tried to resuscitate Grant, but he was pronounced dead at the scene at 8.44 pm.
A post-mortem examination found a total of 18 injuries, including stab wounds to the chest, abdomen and back, incised wounds to the hands and arms, and facial abrasions. Two of the stab wounds had penetrated the heart. The cause of death was multiple stab wounds to the chest, resulting in acute blood loss.
There were no witnesses to the incident. You have given a number of accounts of what took place between you and Grant that evening, which differed in various respects, including as to: whether you were asleep or awake when Grant arrived; whether the lights were on or off; whether you let Grant in or he let himself in; what violent acts Grant performed towards you; and what was said between the two of you. A common thread throughout the accounts has been your assertion that Grant was the aggressor. Although your accounts have varied somewhat, that seems to be a reflection of the distressed mental state you were in after the incident, rather than any dishonesty on your part.
Your first, brief account was given to Senior Constable Melissa Peters, who arrived shortly after the incident. You told her, “I knew this was going to happen, I told him to stop threatening me daily about bikies. I had enough. He can’t keep saying that. I can’t keep taking this, every day, I can’t. He came in my room and I just kept stabbing him I don’t know how many times or where I got him.”
You told Senior Constable Peters you did not know where the knife was now, but thought it was in your room. A black handled boning knife, with a blade length of 15 centimetres, was found protruding from the side of a coffee table in the back room. The blade was jammed between the table top and a support under it. The knife blade was bent, and there were bloodstains along its length. Subsequent DNA analysis confirmed that Grant was the source of the blood.
While being transported to the police station in a divisional van, you spoke further about what had occurred to Constable Zeph Sweep. You said that you were lying on the couch, when Grant came in and started fighting with you, with a glass of Coke and “started his shit again.” You said you grabbed whatever was nearby, and started striking him with it. It was either a kitchen knife, a boning knife, a Stanley knife or a hammer, whatever was on the bench at the time. You said it was dark, the lights were off, and you had been in there asleep. You said you and Grant struggled in the kitchen, and when Grant fell to the floor you panicked.
You also told Constable Sweep that Grant came down, asking you why the back door was locked, and that you had told him you were trying to sleep. Grant then said, “Who the fuck are you?” and you opened the door and let him in. You said you asked Grant to turn off the light, and Grant said “I’ll fucking smash you now” and started hitting you.
In your formal record of interview conducted at the Werribee police station, around midnight that same evening, you told police you feared for your life, because your brother was an ice addict and unpredictable. You said your brother attacked you again, and you grabbed the nearest thing and defended yourself.
You said “I was in the back room asleep. He ripped the doors open because I had ‘em locked. He came in and turned the light on. I said, ‘please, I don’t want to deal with you tonight. I can’t handle it’. And he goes, like he said, ‘Who the fuck are you?’ I said, ‘Leave me alone. I just want to be asleep. I don’t want to hear anyone. I don’t want to speak to anyone’. And he got up and he grabbed me by the hair. He hit me a couple of times. He threw his drink at – yeah, grog at me, you know, but it was more near me than at me because I was lying on the couch. He proceeded to do what he usually does and bullied me around and – and be aggressive. I grabbed whatever I could on the – on the coffee table and I just started striking him with it”. You said, “We wrestled a little bit, he then left the back room…we were wrestling on the way out and then he’s on the floor”.
You also said that it was dark, you were asleep, and the TV was on. Grant walked in and turned the light on, and you told him to turn it off, before getting up and turning it off yourself. You said that at that stage Grant “just started”.
You told police that you thought you had reached for a Stanley knife or a kitchen knife, but you were uncertain because the lights were off. You acknowledged in your record of interview that Grant was not armed.
Examined by a doctor about five hours after the incident, you said that Grant had woken you by grabbing your hair and clothing, and had punched you to the body; you had defended yourself with your hands. You said he had stomped on your left foot, and after that you were not sure what had happened.
It is not necessary to resolve the various differences in your accounts of exactly what happened. The prosecution accepts that you should be sentenced on the basis that Grant entered the room, startled you, and showed initial aggression towards you, both verbally and physically. The physical aggression included throwing some liquid in your direction (which may have fused the electrical current, and plunged the room into darkness), and then hitting you. You responded by grabbing what your counsel’s written submissions described as a “pre-positioned knife”, being one of the various knives which you kept around the house due to your anxiety and paranoia.
However, the prosecution says you have overstated the extent to which you felt threatened by or frightened of your brother, as a result of his previous violence.
Grant did have convictions for unlawful assault, affray and recklessly causing injury. However, I am unaware of the circumstances of that offending, and there is no evidence to suggest that you were the victim of any of those particular offences.
You told police you were continually threatened by your brother, on a daily basis. For example, in your record of interview, you said "Every night I'm threatened with my life. I've already been - my half of my head got crashed in with a shotgun and the other end got put in my mouth, and he threatened to pull the trigger, and that, on me. So every night I sleep in fear when I'm at my father's house. The restraining order was put on him so he wouldn’t come near me, but he still does and nothing ever gets done about it. The police never, ever act on it.”
This is an inaccurate, exaggerated account, both of your general relationship with Grant, as well as what had in fact occurred in relation to an intervention order taken out against Grant.
The police were called to your father’s house in March 2012, a year before these events, and saw that you had a swollen, black eye. You told police that Grant had been going through your phone messages, and punched you in the eye. You said you did not want to pursue a family violence order, and made a statement of no complaint. However, the police took out an interim order on your behalf. When you did not attend court on the return date, to pursue the order, it lapsed.
It is common ground that you reported the March 2012 incident to police as having involved a punch, not an assault with a gun. According to your counsel, you had not wanted to tell the police about any gun, as you thought that might make the situation worse. However, there is evidence that you told your general practitioner, in April 2012, that you had been hit in the face with a gun butt by your brother. Whilst your claim that “half of [your] head got crashed in with a shotgun” seems to be an exaggeration, I am prepared to proceed on the basis that Grant hit you with a gun butt on that previous occasion.
There is no evidence of any intervention order between you and Grant, apart from the March 2012 interim order. Even if, as you asserted in your record of interview, you believed that the order was still in place in April 2013, there is no evidence that you had ever complained to the police about Grant breaching that order in any way.[1] Your assertion that Grant regularly breached the order, and “nothing ever gets done about it. The police never, ever act on it” is not substantiated.
[1]Senior Constable Dietachmayer’s statement refers to you having complained about Grant assaulting or threatening you when using drugs, but that appears to have been prior to the intervention order being taken out.
There is also no evidence to support your assertion to police that Grant had ever threatened your life, or was threatening you on a daily basis.
There is no doubt that your relationship with Grant had its ups and downs over the years. Some of the early conflict apparently related to your drug abuse, but that conflict seems to have largely resolved itself by the time of your mother’s death in 2005 or 2006.
At various times you had worked or lived together as adults. Your father and sister, Mr Gregor (the boarder), and Daniel Sheriffs (an old friend of both you and Grant), all gave evidence of some difficulties in your relationship with Grant, including arguments between the two of you; but none of them described a relationship as violent or as fractured as the account you gave to the police. That said, they were obviously not present at every interaction between you and Grant.
Your counsel said that in so far as your accounts to the police may involve an element of histrionics or exaggeration, that should be seen as no more than a reflection of your anxiety, which I will consider shortly.
I accept that on the night in question, Grant came upon you, unexpectedly, while you were either resting or sleeping, in the house in which you were living at the time. He was the initial aggressor, both verbally and physically. He had assaulted you on at least one occasion before. You were both young and fit, although Grant was apparently stronger than you. And, since he started using ice, he had become aggressive and somewhat unpredictable.
In all the circumstances, and given the paranoia and anxiety from which you have suffered for many years, the Crown accepts that you perceived that it was necessary to grab and use a knife in order to defend yourself.
However, by pleading guilty to defensive homicide, you have accepted that you did not have reasonable grounds for believing that you needed to do what you did in order to defend yourself. It is true that the incident was a relatively short one, lasting only a matter of minutes, and certainly no more than 10 minutes. But, there were no reasonable grounds for stabbing Grant so many times, including three or four times in the chest, in circumstances in which he was not using, or threatening to use, a weapon on you. As far as your injuries were concerned, the doctor who examined you that evening noted only minor injuries, including a non-specific area of redness on the forehead, a patchy red abrasion on your upper right limb, and a bruise and some swelling on your left toe. After Grant’s initial blows, this was very much a one-sided fight. Your response was completely disproportionate to the threat you actually faced.
I will discuss your moral culpability further, after I have considered the evidence concerning your mental state.
I have read the victim impact statement made by your sister, Breanne Geyle. The circumstances surrounding Grant’s death have, quite understandably caused her great distress. Her distress is complicated by that fact that you, her only other sibling, are the person responsible. She loved both her brothers, and is still supportive of you. As she herself says, “the whole thing is just a tragic sad mess”, and she feels she is caught in the middle, without any prospect that your sentencing will bring her some sort of closure.
I turn now to consider your personal circumstances.
You were born in January 1981 and are now almost 33 years old. You were the second of the three children.
Your parents’ relationship was a dysfunctional one, and involved periods of violence and separation, before your mother finally left your father in 2000, when you were 19.
You did not cope terribly well at school, due to ongoing anxiety issues, which manifested themselves in various problems, including poor social integration.
You attended local high schools until year 10, after which you attended a trade school. You started a boilermaker’s apprenticeship, but were dismissed from your position (either in your final year, or just afterwards) for reasons unknown to me.
You began abusing illegal drugs in your teenage years, which apparently caused tensions between you and your mother and brother. Because your mother would no longer let you live with her, you began to live a rather itinerant lifestyle, sometimes living with your father, sometimes in temporary accommodation or on the streets.
Your relationship with your father has never been a particularly healthy one. Your father was an alcoholic, who was violent and emotionally abusive towards you in your childhood. However, as you got older, it seems that you became violent towards him. There have been numerous police attendances at your father’s house over a period of some 10 years, in respect of physical altercations between you and your father. Each of you has, at various times, accused the other of being violent towards them.
The only reason you were living with your father at the time of these offences was because you were unemployed, and had nowhere else to go. You were expecting to move out the following week, as community housing had become available.
The Crown accepts that you had stopped using heavier illegal drugs, such as heroin and amphetamines,[2] some years before this incident. You had been on methadone for a number of years, and were still on it at the time of the offence. However, you were still smoking cannabis at the time;[3] it is most regrettable that you have continued to use cannabis, given its apparent link with some of your mental health problems.
[2]Both of which you began using when you were about 18.
[3]You began using cannabis when you were about 15.
You have worked from time to time in a variety of jobs, including gardening, fencing, forklift driving, labouring, working in take away food shops, maintenance work, and collecting scrap metal. However, your employment history has been spasmodic, and it seems that you have struggled to maintain regular employment, due to your drug usage and mental health issues.
You have had a number of interactions with mental health practitioners over the years. The following history is taken from a number of different reports, which were prepared in connection with various court appearances.
In 1999, when you were 18, you were first admitted to psychiatric care, because of a psychotic episode.
Between 2001 and 2003, you were under the care of Dr Datta, a psychiatrist, who was treating you for depression.
In 2003, you suffered from a drug-induced psychosis, which required hospitalisation and subsequent outpatient treatment. In early 2004 or 2005, there was a further drug-induced psychosis, which was also apparently caused by amphetamine use.
You have suffered from serious anxiety for a number of years. Mr Robert Cock, a psychologist who saw you in May 2006 in connection with some violent offending for which you were sentenced in August 2006, said your anxiety manifested itself in agoraphobia, hypervigilance and paranoia.
In August 2006, you were admitted involuntarily to the Werribee Mercy Psychiatric Unit suffering from psychotic symptoms, including bizarre, delusional, fearful thinking. Once again, these were believed to have arisen as a result of illegal drug use. Dr Ashish Mordia, a psychiatrist at the Unit, reported that your long-term outcome would depend on your abstinence from illicit drugs of all kinds, especially amphetamines and cannabis.
By March 2007, Vivienne Miller, a psychiatric nurse engaged by Forensicare, described you as currently psychotic, and exhibiting symptoms of schizophrenia. She said you had been diagnosed as suffering from “schizophrenia, paranoid type”, by Dr Anthony Cidoni of Forensicare, in July 2006; however, Dr Cidoni’s report is not before the court.
Dr Adam Deacon, a psychiatrist who saw you in December 2008, described the development of your schizophrenia over the past decade, in the midst of concomitant use of illicit drugs. At the time of seeing you, he said you were largely free of psychotic symptoms, and displayed good insight and awareness of your schizophrenia.
The most recent report before the court was from Dr Stella Kwong, a psychiatrist, dated 2 June 2010. Dr Kwong opined that you had been suffering from what she described as “a severe panic illness” and social phobia, ever since you were very young. She did not believe that you were suffering from schizophrenia at the time she saw you, as there was no remnant of any formal thought disorder, hallucination or delusional signs or symptoms. But, she also said you were severely handicapped by your “neurotic illness”, and when under enormous stress could lapse into psychosis, especially when drug-affected. Dr Kwong’s report does not deny the correctness of the earlier schizophrenia diagnoses by Drs Cidoni and Deacon.
Neither the prosecution nor the defence suggests, and there is no evidence, that you killed your brother in a psychotic state, or due to hallucinations or delusional thinking caused by schizophrenia. And your behaviour immediately after the stabbing was completely appropriate, in terms of your distress and concern for your brother.
However, both sides accept that your response to Grant’s unexpected intrusion and initial aggression was affected by the anxiety and paranoia from which you have suffered and been treated for a number of years. That serves to reduce to some extent the moral culpability of your offending.
However, this is not an isolated instance of violence or criminal conduct by you. You have a long criminal history, involving almost 20 separate appearances before the courts since 1998, when you were 17 years old. Many of your convictions were for theft or other property offences. You also have multiple convictions for possessing illegal drugs, primarily heroin and cannabis, although those have decreased in frequency in more recent times.
Of particular relevance for present purposes are your prior convictions for offences of violence.
In October 1998, when you were 17, you were convicted of intentionally causing injury. In the course of stealing some cigarettes from a shop, with a female friend, you punched the shopkeeper. You received a community based order.
In November 2000, when you were 19, you were convicted of multiple offences, including reckless conduct endangering serious injury, unlawful assault, intentionally or recklessly causing injury, and possessing a regulated weapon. The regulated weapon was a meat cleaver, which you would carry around as a weapon when purchasing and using drugs. On this occasion, you and another person were stealing from a Target store, during business hours. When security guards challenged you, you brandished the cleaver and resisted their capturing you; you injured two security guards in the process. You received a sentence of 9 months’ detention in a youth training centre.
In August 2006, you were convicted of intentionally causing injury and aggravated burglary. The circumstances of this offending were that you and three others invaded the home of a drug dealer, apparently as some sort of vigilante type action. You punched the victim and broke his nose. Your counsel acknowledged that the community based order which was imposed was rather lenient, this being during a period when doctors believed that you were suffering from schizophrenia or a paranoid psychosis. In August 2009, you were sentenced for breaching this community based order.
In May 2009, you were convicted of recklessly causing injury. This arose out of an incident in 2008, in which you stabbed a boarder at your father’s house, in the course of an argument about living arrangements. It is not clear what the implement was that you used on this occasion, but the victim suffered a laceration to the side of his body. Once again, you received a community based order, which you apparently breached the following year.
None of your previous convictions involved the degree of violence which you inflicted on this occasion. They are nevertheless of some concern, because this is not the first time that you have resorted to violence, including using a weapon against another person.
As already mentioned, there is no doubt that you used to place knives at various locations around your father’s home, in what your counsel described as a “standing defence tactic”. You did so because you were scared that people, including your family, were “out to get you”. I accept that this conduct has been driven by your anxiety or paranoia, notwithstanding that you were taking prescription medication at the time. But, such conduct is of concern in terms of the possibility of future offending by you, and the protection of the community.
Whilst I accept that your anxiety contributed to your offending on this occasion, and has some ameliorating impact on the issues of specific and general deterrence, it does not remove altogether the need for specific deterrence in your case. Nor does it mean that there is no need for general deterrence. People must be deterred from carrying, or keeping close to them, dangerous weapons such as knives, which can so easily be used with lethal consequences when an unexpected threat arises.
It is not suggested that your mental state will make incarceration more difficult for you than for others without such a condition. Indeed, it appears that you are doing relatively well in custody, in comparison with your more unstable existence in the community.
You were originally charged with murder. You offered to plead guilty to defensive homicide after the committal hearing. I accept that this is a relatively early plea. You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a defensive homicide trial.
I also accept that you are genuinely remorseful for what you did. You showed immediate concern for your brother and made full admissions to the police. You have continued to be deeply remorseful for killing your brother.
I am somewhat guarded about your prospects of rehabilitation, given the number and nature of your previous convictions, your various mental health issues, your long history of drug abuse, and your response to the numerous opportunities which courts have given you in the past.
There is a well-documented link between your drug usage, psychotic states and past offending. You have continued to use cannabis, despite psychiatric advice not to do so, although have stopped using heroin and amphetamine. You have been drug free in custody. Whether or not you will be able to refrain from using drugs, once you are released from custody, remains to be seen.
You have expressed a desire to pursue an education whilst in prison; that is a commendable goal, which may help improve your employment prospects upon release.
In her June 2010 report, Dr Kwong said it was extremely difficult to offer you any psychological assistance because of your lack of psychological readiness, substantial social support, financial resources and rehabilitation potential. Those continue to be issues of concern in assessing prospect for rehabilitation.
The maximum penalty for defensive homicide is imprisonment of 20 years.
The prosecution suggested that a head sentence of somewhere between 8 and 10 years, with a non-parole period of 6 to 8 years, would be appropriate in this case.
Your counsel argued that you should receive a merciful or unusually light sentence, particularly for the non-parole period, but also by way of head sentence. He argued that it was in the community’s interest that that occur, because you need oversight and support for a reasonably extended period of time. I am not persuaded that your case requires you to receive what might be described as an unusually light or merciful sentence. You are no longer a youthful offender. Many of your sentences over the past 15 years appear to have been rather lenient, involving some form of community based order or suspended sentence. On a number of occasions, conditions have been imposed requiring you to attend assessment and treatment for substance abuse, anger management, and psychiatric or psychological issues. Although you appear to have complied with some of those conditions, you have continued to offend, continued to use cannabis, and have been dealt with on a number of occasions for breaching court orders. Whilst I agree that it is desirable that you receive counselling and support during any period in which you are on parole, you will have ample opportunity to do so during the more usual non-parole period which I propose to set.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of defensive homicide, I sentence you to imprisonment of 8 years and 6 months. I fix a period of 6 years as the period you must serve before becoming eligible for parole.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 10 years’ imprisonment, with a minimum non-parole period of 7 years and 6 months.
Further, I declare that the period to be reckoned as already served under this sentence is 258 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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