R v Kostov
[2005] VSCA 243
•10 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 330 of 2004
| THE QUEEN |
| v. |
| JOHN KOSTOV |
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JUDGES: | CHARLES, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 October 2005 | |
DATE OF JUDGMENT: | 10 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 243 | |
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SENTENCE – Attempted murder and aggravated burglary – Remorse – Personal considerations – Cumulation – Total effective sentence of 11 years, and non-parole period of 8 years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| The Applicant in person |
CHARLES, J.A.:
The applicant, who is now aged 45, applies for leave to appeal against the total effective sentence of 11 years' imprisonment, with a non-parole period fixed of eight years, imposed on him on 15 November 2004 by Kellam, J. in the Supreme Court after he had pleaded guilty to one count of aggravated burglary and one count of attempted murder. The maximum custodial sentence for each offence is 25 years. At the time of sentence the applicant had no prior convictions.
On 20 May 2005 Chernov, J.A. refused leave to appeal under s.582 of the Crimes Act 1958. At that stage his Honour dealt with three grounds for seeking leave to appeal, first that the sentence is manifestly excessive, secondly that the judge failed to give sufficient weight to the applicant's prior good character and lack of prior convictions, and thirdly that the judge erred in giving too much weight to the principles of general and specific deterrence.
The circumstances of the offending are set out in the original sentencing remarks of Kellam, J. and there is no need to repeat them here. They were appropriately described by Chernov, J.A. as brutal and terrifying. The circumstances involved the applicant breaking into the home occupied by his former wife (from whom he had been separated since November 2001) her partner, Mark Nicholson and the three children of the marriage, at Tarnagulla near Bendigo. His wife had instituted divorce proceedings on 12 August 2003 and the hearing had been fixed for 24 September at the Family Court in Melbourne. On the day the offences were committed, 23 September 2003, the wife had left the home to travel to Melbourne to attend the hearing at the Family Court. The applicant that night entered the house with an axe with which he proceeded to attack Nicholson, who was seriously injured in the events which followed.
The applicant now by his new ground 1 seeks to challenge the order for cumulation made by Kellam, J., who directed that one year of the four-year sentence imposed on count 1, aggravated burglary, be served cumulatively upon the sentence of 10 years imposed on count 2, attempted murder. The applicant submits that the offences were a continuation of one act and not two offences; that, in effect, his invasion of his wife's property could not be regarded as burglary since he was a part owner of it; that the offence was not premeditated; and that the applicant suffers from a number of serious health problems which will make prison onerous for him.
There is nothing in this ground. The offence of aggravated burglary was complete upon the act of invasion whilst armed with an axe in the knowledge that there were people in the home. The subsequent conduct of the attack on the victim was a separate matter. The offence of aggravated burglary was extremely serious, amounting to a family home invasion with the clearest intention to assault the victim. It took place in the early hours of the morning with an axe when three children were in the house as well as the victim. Kellam, J. dealt with these matters specifically in his sentencing reasons. The amount of cumulation directed was modest and certainly does not indicate error.
Ground 2 claims that the sentencing judge was in error in concluding that the applicant "showed no evidence of real remorse". The applicant claims that the judge effectively regarded the applicant's continued anger over the break-up of his marriage as an indication of lack of remorse. It is argued that the judge failed to give sufficient weight to the applicant's amnesia. Furthermore the applicant had pleaded guilty, in itself betokening remorse, and it is suggested that the judge was "perhaps mistaken in not recognising the admissions to police could also be regarded as such".
It is again clear that there is nothing in this ground. The judge gave careful consideration to the question of remorse. The applicant had carried out a horrific attack on the victim, a person who had formed a new relationship with the applicant's former wife after they had separated, and the attack was carried out in circumstances of extreme anger and jealousy with murderous intent. In my view, on the facts considered by the judge, his Honour was perfectly entitled to conclude that there was no real evidence of remorse in the plea material.
Insofar as complaint is made that not enough weight was given to the applicant's amnesia in determining remorse, none of the medication taken by the applicant would on the evidence before the judge have accounted for any pharmacological reason for amnesia. There was insufficient evidence before the judge to satisfy his Honour that the applicant was genuinely in a state where he had no recollection of the events, as opposed to whether he was simply lying about the issue in a desire to avoid facing the magnitude of his offending. There was insufficient material on this issue to be taken into account on the matter of remorse. The plea of guilty, also relied on by the applicant, was taken into account by the judge.
Under ground 3 the applicant relies on the assistance he gave the victim after he was injured. On the evidence, the applicant gave little or no assistance to the victim after the latter had been seriously injured during the applicant's attack upon him. Not content with his violent and brutal attack on the victim, the applicant proceeded to threaten him upon leaving. There is nothing in this ground.
Under proposed ground 4, the applicant relies on Graves disease and its alleged effect on him that night. He contends that no weight was given to the side effects of this disease or any ongoing problems. Furthermore, the applicant now challenges the report of Professor Drummer made on 20 August 2004 that was before the sentencing judge in this matter. He sought to do so on the basis of a number of pages of written material that were not before the judge and by himself giving supposedly expert medical evidence from the Bar table. He also contended that his counsel had wrongly failed to challenge a number of pieces of evidence that were before Kellam, J. His counsel was, I should say, was a barrister of considerable criminal experience.
Kellam, J. had before him a number of medical reports as to the applicant's condition and was aware of the significance of it. His Honour spent some time analysing these matters in the sentencing remarks. In all the circumstances, and taking into account the effect of Graves disease upon the applicant, the sentences imposed on him were in my view well within the range that could be expected for offences of this kind committed in the known circumstances.
Both offences were of a particularly serious nature and called for long custodial sentences. There is no question, in my view, of manifest excess. There was, I think, no error in Kellam, J.'s sentencing reasons, and Chernov, J.A. was right to refuse the application under s.582 of the Crimes Act. I would dismiss the application.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CHARLES, J.A.:
The application for leave to appeal against sentence is dismissed.
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