R v Kostov - [2004] VSC 445

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1436 of 2004

THE QUEEN

JOHN KOSTOV

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2004
DATE OF SENTENCE:	15 November 2004
CASE MAY BE CITED AS:	R v Kostov
MEDIUM NEUTRAL CITATION:	[2004] VSC 445	Revised 27 October 2005

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CRIMINAL LAW – Sentence – Aggravated burglary and attempted murder – Plea of guilty.

Entry into ex-wife’s home armed with an axe – Attack upon occupant in presence of child - Total eleven years’ imprisonment with minimum of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	The Solicitor to the Office of Public Prosecutions
For the Accused	Mr J.D. Montgomery	Victoria Legal Aid

HIS HONOUR:

You, John Kostov, have pleaded guilty before me to one count of attempted murder and to one count of aggravated burglary. The maximum term of imprisonment on each count is 25 years’ imprisonment. These crimes arise out of circumstances which took place at Tarnagulla, near Bendigo, on 24 September 2003. At that time your former wife, Leanne Elliott, and the three children of her marriage to you, who were then aged eleven, seven and six years respectively, lived in a home in Clyde Street, Tarnagulla.

By way of background, you were married to Leanne Elliott in 1988, and in 1996 the family moved to Tarnagulla. It is apparent that the marriage between you and Leanne Elliott was an unhappy one and there was a significant amount of conflict between you and your wife. There had been a period of separation early in the marriage but you and Leanne resumed your relationship shortly before the family moved to Tarnagulla. Regrettably, the relationship did not improve and by November 2001 your wife determined that the relationship had broken down irretrievably and you left the home. During 2002 your wife formed a relationship with Mark Nicholson. As the material before me reveals, that relationship caused some jealousy on your part. Mr Nicholson did not, however, live with your wife at Tarnagulla during that period, although on occasions he did stay overnight.

Divorce proceedings were instituted by your wife on 12 August 2003. The application was served upon you on 30 August 2003. The application noted that the proceedings were fixed for hearing at 11.30 am on 24 September 2003 at the Family Court in Melbourne. Leanne Elliott left the family home at about 6.20 pm on the evening of 23 September and stayed overnight at her mother’s home in Reservoir. Her friend, Mark Nicholson, agreed to look after your three sons that night and agreed to stay at the home of Leanne Elliott in Clyde Street, Tarnagulla for that purpose. He went to bed at about 10.00 on the evening of 23 September 2003. The next thing that he recalls is waking up to the noise of dogs barking. He observed that a bedside clock recorded the time as 4.00 am. He yelled out to…

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 Kostov

Details

AGLC: R v Kostov [2004] VSC 445
Case: [2004] VSC 445
Decision Date: 15 November 2004

CaseChat Overview and Summary

In the case of R v Kostov, the appellant was convicted of aggravated burglary and attempted murder. The appellant entered the home of his ex-wife armed with an axe and attacked the occupant in the presence of a child. The case was heard in a higher court of Australia, which was tasked with reviewing the sentence imposed on the appellant. The appellant entered a plea of guilty to the charges. The court was required to determine whether the sentence of eleven years' imprisonment with a minimum of eight years was appropriate.

The primary legal issue was the appropriateness of the sentence imposed on the appellant. The court considered the severity of the crimes committed, the use of a weapon, the presence of a child, and the appellant's plea of guilty. The court also took into account the appellant's criminal history and the need for deterrence and rehabilitation. The court had to balance these factors to ensure that the sentence was just and proportionate to the crimes committed.

The court concluded that the sentence was appropriate given the gravity of the offences. The court found that the appellant's actions demonstrated a significant level of violence and posed a serious risk to the safety of others. The presence of a child during the attack further aggravated the circumstances of the case. The court determined that the sentence imposed was necessary to achieve the objectives of punishment, deterrence, and rehabilitation. The court found that the sentence reflected the seriousness of the crimes and provided adequate protection to the community.

The court upheld the sentence of eleven years' imprisonment with a minimum of eight years. The court found that the sentence was proportionate to the appellant's crimes and took into account the relevant factors considered in sentencing. The court did not order any further action or review of the sentence.

Orders