R v Maccia
[2003] VSC 384
•10 October 2003
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1432 of 2002
| THE QUEEN |
| v |
| BENITO MACCIA |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 and 10 September 2003 | |
DATE OF SENTENCE: | 10 October 2003 | |
CASE MAY BE CITED AS: | R v Maccia | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 384 | |
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CRIMINAL LAW – Sentence – Stalking – Incitement to murder.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | Kay Robertson Solicitor for Public Prosecutions |
| For the Accused | Mr C. Dane Q.C. | Galbally & O’Bryan |
HIS HONOUR:
Benito Maccia, you have pleaded guilty to the following two serious offences –
(i)that at Melbourne between 1 November 2000 and 19 June 2001 you stalked Slavoljub Tasevski, Borce Vasilevski, Milanco Gligorieva and their families;
(ii)that at Lalor on 19 June 2001 you incited “Alex Baldwin” to murder Slavoljub Tasevski.
The first count, stalking, is a statutory offence which was created by the Crimes (Amendment) Act 1994 which came into operation on 23 January 1995. It is an offence which carries a maximum penalty of ten years’ imprisonment.
The second count, incitement to murder, was a common law offence which became a statutory one many years ago. Division 11 of the Crimes Act 1958 deals with incitement and by reason of s.321I(1)(ba) of the Act the maximum penalty is either life imprisonment, or imprisonment for a fixed term.
It is noted by reason of s.321L that the offence of incitement at common law is abolished.
By pleading guilty to both counts, you have admitted the essential elements of the crimes of stalking and incitement to murder.
The maximum penalties prescribed by Parliament show that both offences are serious and the incitement to murder is a very serious offence.
It is now my function to sentence you. My task is to determine the facts and applying the principles of sentencing law determine in the exercise of my discretion, what is the proportionate and appropriate sentence in the circumstances.
In relation to the sentencing process, I note the observations of the Court of Appeal in R v Storey,[1] where four members of the Court said –
“Sentencing is not a mechanical process, it requires the exercise of a discretion. There is no single right answer which can be determined by the application of principle. Different minds will attribute different weights to various facts in arriving at the ‘instinctive synthesis’ which takes into account the very purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, and which pays due regard to the principles of totality, parity, parsimony and the like.”
[1][1998] 1 VR 359 at 366.
At the outset it is necessary for me to determine the relevant facts. The source is the depositions. There was a committal and some witnesses were cross-examined. No evidence has been called in this court by you in respect of the facts constituting the two counts. The facts have been supplemented by assertions made on your behalf by Counsel from the Bar table and also reports from two experts which state what you told them concerning some of the facts. What you told them has not been proven as evidence but nevertheless are matters that the court considers. This is a permissible practice in this State.
In R v Storey,[2] the same members of the Court of Appeal said –
“Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the Bar table and we see no reason why that practice should not continue. … As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial.”
[2]supra, at p.371.
However, the weight that I attach to the facts stated to the experts is another matter. Sworn evidence as a general rule carries more weight than statements made in reports or from the Bar table. Your counsel has not sought to contradict the essential facts stated in the depositions nor the facts stated in the victim impact statements. In considering the latter I confine myself to the statements which are relevant to the two counts.
In carrying out my task to determine the facts, I am bound to find the relevant facts consistent with your plea of guilty, but I am not bound to take the most lenient view of the facts.[3]
[3]See R v Kane [1974] VR 759 at 762 and R v Hill [1979] VR 311 at 312.
However, your plea of guilty, whilst an admission of all the elements of the offence, does not amount to an admission of all the facts stated in the depositions.[4]
[4]See R v Hill, ibid.
Nevertheless as I have said, counsel on your behalf has not contested any of the facts in the depositions. It is open to me to draw inferences from those facts.
In reaching my conclusion on the facts, I accept that matters, which are adverse to your interests and which are not inherent in your plea of guilty, must be established beyond reasonable doubt. On the other hand, if there are circumstances in your favour, it is enough if those circumstances are proven on the balance of probabilities.[5] The principles I have just stated have been reaffirmed by the High Court in R v Cheung.[6]
[5]See R v Storey, supra, and R v Albrich (1999) 199 CLR 270.
[6](2002) 76 ALJR 133.
I have read the depositions.
Before stating the facts, it is necessary for me to say something about the crime of stalking.
The crime of stalking was created by statute. The crime is concerned with the conduct of an offender towards another person, the victim. Stalking-type conduct is defined by s.21A(2) of the Crimes Act but it is not an exclusive definition. It includes following the victim, entering or loitering outside or near the victim’s residence or place of business, interfering with the victim’s property and acting in a way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety. It is necessary for the prosecution to prove that the conduct was done with the “intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety … and the course of conduct engaged in actually did have that result.”
Section 21A(3) assists the prosecution in proving the necessary intention if it is proven “that [the] offender knows, or in all the particular circumstances that offender ought to have understood, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.”
The prosecution has to prove that the conduct in question did actually have the result, namely, causing physical or mental harm to the victim or arousing apprehension or fear in the victim for his or her own safety.
Stalking is a composite offence and can be made up of many acts of stalking behaviour. In the present case, the conduct complained of spanned nearly eight months and was constituted by many separate acts which caused physical or mental harm to the victim or aroused apprehension or fear in that victim for his or her own safety, and the safety of their families. However, you have been charged with one overall embracing offence of stalking which is made up of many instances of unlawful conduct. All told, there were 11 instances of stalking-like conduct done with the necessary intent having the effect of causing physical or mental harm or arousing apprehension or fear in the victim.
Your conduct was appalling over that eight month period, and had a frightening, distressing and disturbing effect upon Messrs Slavoljub Tasevski, Borce Vasilevski, and Milanco Gligorieva and their families. The acts of stalking were committed, at your request and most of them on your behalf, by a young man, Afrim Medini, who at the relevant time was aged 26 years.
You were born on the fifth day of April 1940 and are now aged 63 years. At the relevant time you were aged 60 years.
The conduct of which you are charged with two offences occurred during the period November 2000 through to the end of June 2001. When apprehended by the police, you denied any knowledge of any of the allegations put to you, hid behind your professed lack of understanding of the English language and declined to provide any information to explain the appalling conduct.
By admitting your guilt, you admit the elements that make up each count. On the other hand, you do not admit all the facts which are in the depositions. Evidence was called on your behalf from a number of sources. First, two reports by Professor P.E. Mullen, a forensic psychiatrist, were tendered. The professor was not available to be cross‑examined. Three reports prepared by the forensic psychologist, Jeffrey E. Cummins, were also tendered in evidence. He gave evidence and was cross‑examined. In addition, a number of witnesses gave evidence concerning your business, the type of person you were, and the changes in your conduct leading up to and including the period of the stalking. Character evidence was also adduced.
As I have said, when you were apprehended by the police, you initially denied any knowledge of the alleged unlawful acts and denied knowing the co‑accused, Afrim Medini. The depositions do not contain any statement from you as to the events alleged against you and more importantly, any evidence as to your reason or motive for the appalling unlawful conduct constituting the two counts. As I have said, the reports of Professor Mullen and Mr Cummins set out some facts concerning the background leading to the offences. But there is not any direct evidence from you as to your motive. Both experts opine a view as to your conduct, your state of mind and an explanation for your outrageous and bizarre conduct. Some of the witnesses were cross‑examined at the committal. However, in considering and determining what the facts are, I am left with sworn evidence in the depositions and no direct evidence from you as to the events and more particularly, as to your reason or motive for the conduct. Faced with that situation, I am bound to accept the evidence in the depositions concerning the important matters unless for good reason it should not be accepted or, of course, it is inherently improbable or, through cross‑examination of any witness at the committal, the evidence is altered or weakened.
It is necessary to go back prior to November 2000.
You came to this country from Italy in 1966 at the age of 26 years. Your first employment was as a labourer. Within six years you had saved sufficient money to commence a business. You started out as a one-man business with the assistance of your wife and son making moccasin shoes and gradually built up the business from a small home manufacturing situation to a substantial manufacturing enterprise at a factory. You had retail outlets. At one time the business employed about ten persons. The business was successful and at various times you employed two members of the family you later terrorised. You worked extremely hard and long hours. It was a business entirely managed and controlled by you. You performed all the necessary tasks in the operation from purchasing the raw materials to negotiating contracts with large chain stores.
You were married and have one son. You now have two grandsons. The marriage broke down in the late 1980s when your wife left you for another man. You believe that the substantial cause of the breakdown were the hours you put in, conducting your business. I accept that you suffered considerable pain as a result of the breakdown, and although you continued to have an amicable relationship with your former wife, you were never able to speak to her directly about the events that brought the relationship to an end. You continued to support your former wife financially until her death in 1999. I accept that you were greatly distressed by your former wife’s death. Your son was a security officer and since your incarceration from the date of your arrest, has moved into and managed the business, with the assistance of an accountant. The evidence showed that changes have been made to the business, it is successful and its future is bright, although your son would prefer to be doing something else other than managing and conducting the business.
It is necessary to identify the members of the family that you harassed and terrorised.
Mr Slavoljub Tasevski, also known as Stumpy Tasevski, is the person who you incited another to kill. He is married to Ljubica. They lived at all relevant times at 19 Cromley Street, Sunshine. From time to time you employed Ljubica.
Mr Borce Vasilevski, also known as Bob, is a cousin of Slavoljub Tasevski. Another cousin is Mr Milanco Gligorieva. He is married and his wife’s name is Vesna. They have two children, one of whom is known as Dance (also known as Danni.) They reside at 110 Warwick Street, North Sunshine.
Elizabeth Gligorieva is also a cousin of Slavoljub Tasevski. She came to Australia in 1988. Her brothers are Milanco Gligorieva and Borce Vaslevski.
Elizabeth Gligorieva worked in a business selling shoes and in about 1996 she helped you at a market stall which you had at West End Market in Sunshine. Eventually she agreed in 1997 to work for you full-time as a shop assistant at your shop in Thomastown. You became attracted to her and pursued her. According to her you coerced her into having sex with you in a motel in 1998 after a drinking session. Thereafter she did not wish to return to work, but did so reluctantly, some days later. In January 2000 you gave her a cheque for $100,000 in an attempt to induce her to sleep with you. You raised her pay and appointed her manager of the shop. Later, another sexual act occurred but apparently Ms Gligorieva was not a willing participant. You helped her financially to finish the building of her house. You requested her to have sexual relations but she refused. You stated you wanted to marry her.
By mid 2000 you were pursuing her and asking her for a relationship, which upset Ms Gligorieva. She refused to discuss matters with you unless they related to business. You became more and more aggressive and upset. You were angry.
Ms Gligorieva told you to stay away from her and not to intrude into her private life. You commenced to follow her around. You requested people who live near her to inform you as to the identity of people who visited her. It is clear you were obsessed with her. On the other hand, she was not interested in having a relationship with you.
You told Professor Mullen that your relationship with Ms Gligorieva was different to the way she had stated it in her depositions and in evidence at the committal. You claim you had a romantic relationship which commenced in early 1997 and you claim that you regularly went out together and had over an extended period a satisfactory sexual relationship. You state that you willingly and happily provided financial assistance for Ms Gligorieva over a variety of matters, including the building of her house, and that she became quite dependent on the relationship. You stated that you were devastated when you discovered that she was evidently having a sexual relationship with some other person. Ms Gligorieva was cross-examined as to this alleged sexual relationship at the committal. She denied it. I find on the evidence that she did not have a sexual relationship during this period with a relative. Indeed, I did not understand Mr Dane QC, your counsel, to contend that the evidence established that she did. You told Professor Mullen that you believed that you were being exploited and that Ms Gligorieva was simply using you to obtain money and that you were angry with her and the relative. It appears that you had an intense sense of rejection and anger when you discovered what was happening. That you were overwhelmed. You commenced to drink, lost your appetite and suffered a significant weight loss. You became extremely angry and vengeful towards Ms Gligorieva and more particularly the other members of her extended family. It appears that throughout this period you consumed substantial quantities of alcohol.
There is some direct evidence that you were drinking more in this period and that you were more stressful and tense.
Mr Dane informed the court that he was not contending that the facts established the relationship which you described to Professor Mullen, or indeed that Ms Gligorieva had a sexual relationship with a relative.
Given the sworn evidence of Ms Gligorieva, I accept her evidence that she did not have a longstanding amicable sexual relationship with you. I also find that she did not have a sexual relationship with a relative. However, Mr Dane submitted that the evidence showed that you believed you did have such a relationship and that you did perceive that she was having a relationship with another. I am prepared to proceed on those assumptions. It does give some explanation for your extraordinary conduct.
During the two to three years leading up to the end of the year 2000, you befriended the victims and their families and you participated in social gatherings with them. You were friendly towards them and gained their trust and friendship. You became familiar with the victims, their family, their residences and activities.
In November 2000, you commenced the stalking conduct which at that stage was directed towards Slavoljub Tasevski, and Borce Vasilevski. These men and their families received telephone calls mainly from a person who identified himself as Tony. The substance of the calls was that demands were made for varying sums of money between $40,000 and $500,000, with threats to destroy property or kill Slavoljub Tasevski or members of the family. He received some 16 calls from November until late May 2001. His wife also received a number of threatening calls. Borce Vasilevski received at least nine calls between January and May 2001 in which threats were made, demands for money and threatening that harm would come to Slavoljub Tasevski or Milanco Gligorieva if the money was not paid. The threats and the demands were actually conveyed to the persons named in the calls by the recipients of the calls. Between mid February and 11 June 2000 Milanco Gligorieva and members of his family received at least 26 threatening telephone calls. Elizabeth Gligorieva first received a threatening call on 20 March 2001 when threats were directed towards her family. Between that time and June she received other calls, including calls from you of an intimidating nature, and was visited by a man at her work who repeated the threats. It appears that you yourself did not make the calls but got others to make them, and from about January 2001 you engaged Afrim Medini to not only make the phone calls at your request and on your instructions, but also to carry out various dangerous acts involving the members of the family and their property.
Afrim Medini was born on 29 September 1974 and at the time of the commission of these offences was aged 26 years. You met Mr Medini in the year 1997. In December 2000, you offered to and did lend him the sum of $5,000 to enable him to take a holiday. As a result, he was in your debt. The arrangement was that Mr Medini was to pay off the loan during the year 2001. In or about January 2001 you requested him to make telephone calls to various members of the Tasevski and Gligorieva families and to demand money from them with threats to kill, or to cause serious injury and/or damage property. You drove Mr Medini to various public telephones in the northern suburbs to make calls and you told him what to say. For each call you allowed him the sum of $100 which was in reduction of the loan moneys.
Not content with making the phone calls and creating fear amongst the families, you then got Mr Medini to carry out a number of unlawful and dangerous acts.
On 19 June 2001 you and Mr Medini were arrested. In his interview, he frankly admitted his involvement with you and detailed the conduct in which he indulged affecting the members of the families at your request. He pleaded guilty before me and on 15 February 2002 I sentenced him to a period of imprisonment.[7] Mr Medini gave an undertaking to the court that he would give evidence against you. In contrast to Mr Medini’s attitude, you denied any involvement in the unlawful activity to the police, you have failed to give any explanation for your conduct to the police and initially you maintained that you were not involved.
[7]See [2002] VSC 12.
On 9 January 2001 you instructed Mr Medini to telephone Slavoljub Tasevski and threaten to damage his property unless he paid a large sum of money to you.
Mr Medini did telephone and made the threat.
To make good the threat, you instructed Mr Medini to burn Slavoljub Tasevski’s motor car which at that time was parked outside Milanco Gligorieva’s house at 110 Warwick Road, Sunshine. You gave Mr Medini the accelerant and drove him past the premises during the day time so that he was able to identify the vehicle. On the day of 17 January, Mr Medini drove to the address, poured the accelerant over the vehicle and ignited the fuel. This caused approximately $1,000 damage to the vehicle. You paid Mr Medini $500 for the job. The following day you went back to the location, inspected the damage and requested Mr Medini to set fire to
Mr Gligorieva’s house but he refused to do so. In the meantime, Mr Medini, at your request, continued to make the threatening phone calls from public telephone boxes. On 30 March 2001 you requested Mr Medini to drive a motor vehicle into the rear of Vesna Gligorieva’s motor car which was parked outside her work at Essendon. He did so, causing about $1,200 damage.
By this time the members of the family were scared, upset and distressed by what had happened. They were in fear of their lives. At that stage threats had been made and damage had been caused to the property of members of the family. They were living in considerable fear. They did not know who was responsible and viewed members of their own family with suspicion.
During April and May 2001 you hired a private security firm to provide protection to Elizabeth Gligorieva and other members of the family. In June, at the request of
Ms Gligorieva, you ceased the security patrols but you then hired a person to follow and keep her under surveillance. During this period the threats were continuing. It is fairly obvious that you were able, by talking to the members of the family, to ascertain some insight into the police investigation and no doubt this enabled you to take steps to avoid being caught. You were the person responsible for the threats, demands and damage to property, but you deceitfully represented to members of the family that you were concerned about their well‑being, and obtained information from them which enabled you to have some idea of the police investigation. There is no doubt that the family members were in fear of their lives and safety. There is evidence before the court that members of the families underwent counselling due to the stress caused by your conduct.
Your conduct was particularly cruel. You caused the threats to be made. You then gave substance to the threats by causing Mr Medini to carry out violent acts to property. You observed the devastating effect upon the victims. Yet you persevered.
In early April you took steps to increase the fear in this family. You hired Mr Medini to shoot at the house of Milanco Gligorieva at Warwick Road, Sunshine. You supplied Mr Medini with a .22 rifle and ammunition. You drove him to the house and he fired a shot into the house causing damage to the front and rear windows. He also fired a shot into the basketball ring backboard erected in the back yard.
Mr Gligorieva’s 14 year old daughter, Danni, was present in the house and whilst not physically injured, she has been emotionally injured and extremely frightened by the incident. You paid Mr Medini $1,000 for the job. The damage costs were somewhere in the vicinity of $500.
In the latter part of April you were driving in Milanco Gligorieva’s car to the home of Elizabeth and as you passed through Deer Park you pulled out a hand gun, put it to the back of Milanco’s head and said, “What do you think of this, if someone came and put this to your head, how would you live?” This conduct frightened
Mr Gligorieva. The threats made to members of the family continued.
In early May 2001 you drove Mr Medini to Slavoljub’s Tasevski’s house in Sunshine to show Mr Medini where that family lived. On 11 May 2001 Mr Medini returned to the premises and fired three shots through the kitchen window. Slavoljub Tasevski, his wife and a family friend were present in the meals area at the time of the shooting. The wife was standing at the kitchen sink and one of the bullets missed her head by inches. You paid Mr Medini $1,000 for the shooting.
The events which I have just summarised, constitute the various stalking conduct, the subject of Count 1. However, in June you talked to persons to carry out unlawful acts on your behalf. The attempts to induce others to commit serious criminal offences on your behalf are not the subjects of any count. However, the evidence is before the court. Because of evidence called on your behalf as to your alleged state of mind during this period, it is relevant to that question and accordingly it is necessary to briefly refer to it. During the period May to 12 June 2000 you attempted to persuade Mr Medini to murder Slavoljub Tasevski and indicated you would pay $15,000 to do the job. On 11 June 2000 you sought to persuade a security man, Emir Illiss, whom you had employed to keep an eye on the Gligorieva families, to burn the car owned by Mrs Vesna Gligorieva. You also requested Mr Illiss to find somebody to shoot at the car. You also requested a covert police operative named “Alex Baldwin” whom you had met in early June, to fire shots into the home of Borce Vasilevski. The requests were not carried out. By this time the police were involved. You were informed that Vesna Gligorieva’s car had been damaged and that shots had been fired although that was not the case.
Five victim impact statements were tendered in evidence and they graphically describe the enormous distress, fear and upset which was caused to the victims and their families. Their lives were severely disrupted, some of them suffered emotional problems, required counselling and damage was done to their property. The victim impacts statements are from Slavoljub Tasevski, Milanco Gligorieva and his wife Vesna, and a statement by Danni Gligorieva who is the daughter of Milanco Gligorieva. Finally, there is the victim impact statement of Elizabeth Gligorieva who was also severely traumatised by your conduct towards her and her family.
I have carefully considered the victim impact statements. The statements contain evidence which is not relevant to the sentencing exercise and I ignore it. The legislation concerning victim impact statements give a right to the parties before the court to require the maker of the statement to attend and be cross‑examined. No application was made by your counsel to cross‑examine any of the victims and there was no contest to anything contained in the statements.
The victim impact statements assist the court in a number of ways. Often in the sentencing process the focus tends to be on the prisoner, and an impact statement is a timely reminder that the court should not overlook the effect of the criminal conduct on the victim. The statements in the present case graphically illustrate the enormous distress, anxiety and upset caused to the victims and their families, to the point where some of them were in fear of leaving their home and walking down the street. They were constantly concerned that the threats made would be carried out. Even their own homes were not safe. The statements provide credible evidence of the distressing effect of your conduct on the victims and their families.
The incitement to murder count is concerned with you engaging what turned out to be a covert police operative, “Alex Baldwin”, to murder Slavoljub Tasevski. You had already discussed the matter with Mr Medini in May but he refused to carry out the job. Between 13 and 19 June 2001, you had much contact with “Alex Baldwin” and you discussed killing Mr Tasevski. Because of the evidence called on your behalf as to your alleged state of mind at that time and in particular your ability to think clearly and make a proper judgment, it is necessary to summarise the evidence of “Alex Baldwin”. Much of the discussions with “Alex Baldwin” were taped. The evidence is indeed compelling and no doubt played a significant role in the decision to plead guilty.
You first met “Alex Baldwin” on 13 June 2001 in Sunshine. You met him in the company of the security man, Emir Illiss. You were told that “Alex” had been the person responsible for shooting the car owned by Mrs Vesna Gligorieva. You paid “Alex” $500. However, before doing that you sought information as to what had occurred. You produced a business card and “Alex” wrote his name on it, together with a mobile phone number. “Alex” said he did not want one of your business cards and you spoke of being careful with phone numbers so that a connection between you and “Alex” was not established as a result of the identification of the phone number. You then enquired about the personal details of “Alex” who asked Emir to move away and he then proceeded to tell you about himself. “Alex” stated that he was concerned about not being accused of crimes he did not commit and you attempted to allay his concerns that if any further undertakings were contemplated only you and “Alex” would discuss it. You told him to call you “John”. Further discussions took place concerning precautions to be taken so that a connection could not be drawn between you and Alex. It was agreed between you and he that you would not tell Emir anything about what was going on. You told him that you did not want to end up in police hands.
You asked him whether he was going to stay in Melbourne. You told him that if you phoned him you would do so from a public phone booth so that the telephone records would not identify who was contacting him. The conversation then ceased with “Alex” telling you that he was agreeable to meeting with you in the future.
On 14 June 2001 you rang “Alex”. You referred to yourself as “John”, and “Alex” referred to you as “Boss”. A meeting was arranged. You rang from a public telephone. You told him that you wanted to talk about doing two other things. A meeting was later arranged at the West End Market. You and he met. You had some discussion about doing an aggravated burglary which is not the subject of any charge. In the course of that conversation you informed him that you wished to scare somebody and that you would pay him $1,000 to fire shots into a window. You were reluctant to explain why but you said they were poor relations. You then mentioned the address of Borce Vasilevski. At the end of that meeting you drove with “Alex” and showed him the house in question.
On 15 June 2001, you had another conversation with “Alex” who told you that in fact he had fired the shots at the house. This was incorrect, it did not occur.
On the following Monday, 18 June 2001, you met with “Alex” at the West End Market. A conversation took place about the purported shooting at the home and you stated that “Alex” should have fired a shot at a male person in the home. You discussed this and commented that he had missed an opportunity to shoot that person. Then further discussion took place about the planning of the aggravated burglary.
After further discussion, the topic returned to the house shooting and you then said you wanted somebody killed. You told him you particularly wanted a man killed and you asked him what he thought. He said that it could be arranged. You told him that the murder victim drove a white Ford, that he lived nearby but you did not wish to go there in case you were seen. You discussed with him how he would go about shooting him and how to get away from the scene.
On the following day you had another conversation with “Alex” relating to the murder. You told him that you wanted a person known as “Stumpy” killed. You told him that Stumpy was related to the people who lived at the house that “Alex” had shot at and you then said that you “had issues with the family”. You repeated how you purported to be a friend with them but if you had your way you would burn the lot. You said that the family had hurt you and you wanted to take out your revenge on them. You were then asked would you stop after Stumpy was killed, and you replied, “Maybe”. You also had spoken to the police, as a friend of the family, asking how you could help them and you were of the view that you were not suspected at all. You told him that there were a number of issues. Later you asked about the cost. You emphasised the price should not be too high. “Alex” sought information about the killing and in particular the location. You said it would be easy because Stumpy’s house had one house next door and factories lined the remainder of the street. “Alex” said he wished to go and look at the place and you wrote on a piece of paper the name of the street. Further discussion took place about the street location, the house position and the household vehicles. You said that if anything went wrong “Alex” would have to put a bullet into Stumpy’s wife’s head. You then handed over $2,000 as payment for the house shooting. You and he agreed on a code as to the price. You and he parted. Later there was a telephone call and he indicated the price would be $10,000 to do the Stumpy murder. You did not immediately respond to that. Indeed, you indicated later that you wanted “Alex” to think further about the price.
At 8.00pm that night you met at the West End Market and asked “Alex” about what he had observed at the Cromley Street address. The discussion then turned to whether "Alex" should shoot Stumpy away from the home. You indicated that you wished to have Stumpy murdered as soon as possible. You told him that you wanted somebody else shot in the legs and paralysed. You told “Alex” to be careful and that you were willing to pay $10,000. Further discussion occurred concerning the aggravated burglary job and you asked “Alex” to prepare himself to commit the Stumpy murder. You then discussed the getaway route after the murder.
On Tuesday 19 June 2001, again you met with “Alex”. A discussion took place again about killing Stumpy. You then handed over $5,000 being the down payment for committing the murder.
Later that day you met with Mr Medini and “Alex” and discussed the aggravated burglary job. After a fairly full discussion with Mr Medini, you then went on to discuss the murder. There was some talk about getting a hit man. At 2.58pm you all parted company. Later that afternoon you spoke with “Alex” and discussed the place where the Stumpy murder was to occur. Later that night you were arrested.
You have not been charged with the aggravated burglary and accordingly it is not a matter that I take into account in the sentencing process. However, it is relevant to the question of your judgment and thinking around this time which was put in issue by evidence called on your plea.
You were interviewed by the police that night and although you admitted knowing the families in question you denied all allegations put to you, you denied knowing Mr Medini or ever having any contact with “Alex Baldwin”. To this day as I have already said you have not provided any direct evidence explaining your involvement, and more importantly, the reason or reasons why you terrorised this family and sought to kill Mr Slavoljub Tasevski. Evidence adduced on your behalf revealed what you told the experts as to the reasons.
The determination of a sentence is the exercise of a judicial discretion, a task which is recognised as difficult. I am required to determine the facts, apply the relevant principles of law and determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances. Sentencing principles are found in the common law and in statutes, in particular, in this State, the Sentencing Act 1991. Taking into account the principles of sentencing, the relevant statutory provisions, the maximum sentence as prescribed for the offences by the statute, and all other relevant circumstances, both aggravating and mitigating, the task “of a sentencing judge is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as an appropriate sentence”. See R v Young[8]. As the Full Court said, “The purposes of the punishment are manifold” and hence, “the task of a sentencing judge has never been regarded as capable of being confined without injustice within rigid formulae”. The High Court summarised the principles in Veen v R (No. 2).[9] The court emphasised that sentencing was not a purely logical exercise, the difficulty in giving weight to each of the purposes of punishment, that the purposes overlap and sometimes the guideposts to the sentence point in different directions.
[8][1990] VR 951 at 954.
[9](1998) 164 CLR 456 at 476.
In the end, the punishment must fit the crime. The sentence must be commensurate with the seriousness of the crime. As the High Court said in Hore v R:[10]
“A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances.”
This is known as the principle of proportionality.
[10](1989) 167 CLR 348 at 354.
The starting point in the sentencing exercise is consideration and appraisal of the gravity of the offence. The seriousness of the crime is first measured by the maximum penalty imposed by the law and secondly the circumstances. The sentence must serve not only as a sufficient deterrent to the prisoner, but to others who are of like mind and, further, must provide protection for the public. One of the fundamental purposes of punishment is to protect society. Retribution is important and in addition the court considers matters personal to the prisoner, his character, his history, his conduct, his probable future and in particular his prospects of rehabilitation. Any mitigation factors concerning the offence are of importance.
Statute has to some extent overtaken the common law, and the Sentencing Act 1991 sets out guidelines and enumerates relevant matters that must be taken into account when the sentencing judge performs the task. They are found in s.5. Section 5(1) sets out the purposes for which sentences may be imposed and it is noted that the purposes are “the only purposes for which sentences may be imposed.” The guidelines are expressed in the alternative. To some extent the purposes are potentially conflicting and the legislature has not nominated any particular purpose as being the paramount one. Further, the guidelines are silent as to how the court should apply them, but clearly the court must consider the relevant purposes and weigh them in a manner which will do justice in the circumstances. Having observed that, in my view, the basic principle is that stated by the High Court, namely, the principle of proportionality. The sentence should never exceed that which is appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances.
Section 5(2) of the Sentencing Act lists matters that the court must have regard to. They are, the maximum penalty prescribed; current sentencing practices; the nature and gravity of the offence; the offender’s culpability and degree of responsibility; the personal circumstances of any victim; any injury, loss or damage resulting directly from the offence; whether the offender pleaded guilty, and if so, at what stage; the offender’s previous character and the presence of any aggravating or mitigating factors concerning the offender or of any other relevant circumstances. Guided by the principles, the court considers and weighs all relevant circumstances, including both aggravating and mitigating factors, and pronounces a sentence which is the result of the “instinctive synthesis” of those matters. That is the appropriate sentence. That does not mean that the process of reasoning is one of guesswork, but indicates the complex process involved in sentencing by which, after considering all relevant matters, the court arrives at an appropriate sentence. It is not permissible in this State to reveal the reasoning involved in the two‑stage approach in the determination of the sentence, namely, to determine the undiscounted term of imprisonment, announce it and then take into account mitigating factors to arrive at the proper and appropriate sentence and disclose the amount of the discount. See R v Nagy.[11]
[11][1992] 1 VR 637.
Both of these offences are serious. The maximum period for incitement to murder is life and the maximum period for stalking is ten years. The legislature has determined the severity. To make demands of people accompanied by threats, some of which are then carried out in circumstances causing fear and terror in the victims over a prolonged period, is serious and grave criminal conduct. There are a number of factors which aggravate the gravity of this offence of stalking –
·The course of conduct was premeditated, planned and organised by you using another person to carry out the conduct over a prolonged period of some seven months.
·The threatening conduct was backed up by action in the form of damage to motor vehicles on two occasions and the discharge of a firearm on two occasions resulting in damage to premises but more importantly, putting those inside the premises in fear of their lives. The conduct provided chilling support for the threats made and caused enormous fear, concern and upset to members of the family.
·The discharges of a firearm at premises at your request were extremely serious and dangerous acts and fortunately for you did not cause any physical injury, but did cause considerable mental injury.
·You deceitfully represented to various members of the family your concern for them and offered your services to assist them, including hiring a security firm to protect them. Your deception was compounded by the fact that the real object of the exercise was to ingratiate yourself with members of the family to determine the effect of the conduct upon them and also to ascertain details of the police investigation.
·The conduct terrified the victims.
·Despite knowing the appalling effect your conduct had upon the members of the family you persevered with it, causing the members of the family more distress; your conduct was indeed cruel and callous.
·Using economic pressure to coerce Mr Medini to carry out the stalking conduct in the hope that if he was caught you could deny any knowledge of it.
In my opinion, your conduct over that extended period constitutes one of the worst examples of stalking. You persevered with that conduct knowing that the victims were extremely upset, in fear and distressed. Your level of criminal culpability is indeed high. The conduct has had an enormous damaging effect upon the emotional wellbeing of all the victims.
The gravity of the offence is the starting point. The conduct constituting the stalking constitutes grave criminal conduct and the court views the offence as one of extreme gravity. In fixing the appropriate sentence the court is obliged to not only apply principles of general deterrence but on behalf of the community clearly denounce your criminal conduct. I think because of your age, your hitherto good character, and a period of incarceration will ensure you will not indulge in criminal conduct in the future and accordingly the question of specific deterrence is of little significance in this sentencing exercise. But nevertheless, the sentence must send a clear message to those who are like‑minded. Mr Dane submitted that it was not a case for general deterrence because he emphasised the events which led to the stalking were most unusual, it being put that your conduct could be explained as that of a rejected lover and that therefore it was most unlikely that any other person would be confronted with that situation. Further, he submitted that at the relevant time you were suffering from a form of mental disability which affected your memory, thought processes and judgment and as a result you were not an appropriate vehicle for general deterrence. I will return to this submission later.
The sentencing process requires the court to take into account matters personal to you and any mitigating factors. In my opinion, there are a number of mitigating factors which I take into account.
·Until you indulged in this conduct, you had led a good, hard working, blameless life for 60 years. You have one prior conviction which occurred in June 1977, namely theft by shoplifting and were fined $100. I put that prior conviction to one side as being of no significance.
·Prior to the commission of the offences, you enjoyed a very good reputation as a hard working, kind, decent person. This was not only observed in your private and social life but also as an employer.
·You have pleaded guilty. As a result, much time and expense has been saved. In accordance with the authorities you are entitled to a not insubstantial reduction in your sentence. See generally observations of the High Court in Cameron v Queen.[12]
·You have been in custody since arrest on 19 June 2001 and there has been some delay in bringing this matter to a conclusion. You first appeared before me in December 2002 and pleaded guilty. However, due to a number of circumstances there has been a delay in finalising the matter. As a general proposition the delay has been brought about by the request of your legal advisers for adjournments but I think the important thing is the impact of a delay upon you. I do take into account the delay. See R v Miceli.[13] I have no doubt that the passage of time not knowing your fate has been a source of distress and concern to you.
·That taking into account your character and reputation established over nearly 60 years, the conviction, and the denunciation of your conduct by the court, has destroyed your good reputation and represents a substantial penalty.
·That your prospects of rehabilitation are excellent and the likelihood of transgressing on your release is remote.
[12](2002) 76 ALJR 322.
[13][1998] 4 VR 588 at 591.
Mr Dane submitted that there were a number of factors which were affecting your judgment and conduct at the time of the commission of these offences and that those factors should be taken into account in determining the appropriate sentences. Reference was made to R v Anderson[14] and R v Tsiaras.[15] If a prisoner suffers from a psychiatric condition which affects his ability to reason and make judgments, it is relevant to the degree of culpability and responsibility and the question of general deterrence.
[14][1981] VR 155.
[15][1996] 1 VR 398.
At the outset it must be said that the court is not dealing with a serious psychiatric illness. It is contended that you were suffering from excess alcohol abuse, which affected your memory and judgment, and that there is now evidence of some frontal lobe damage to your brain which also affects your thinking processes and judgment forming. The evidence showed that you had limited schooling, that when you came to this country you commenced work as a labourer, that you have some difficulty with the English language and that you are not intellectually bright. Various tests were administered by the psychologist, Mr Cummins. He opined the view that as a result of these tests you are presently suffering from a degree of brain damage which is affecting your general memory and intellectual functioning, as well as the functioning of your frontal lobes which are important in the exercise of forming a judgment. The Crown contests these findings. Ms Pullen cross-examined
Mr Cummins and he accepted that the tests that he administered were not the latest and up to date tests, that he was not a qualified clinical psychologist and that criticisms had been made of the various tests he employed. Further, some tests were conducted without an interpreter, hardly a desirable set of circumstances when you add that Mr Cummins and your lawyers have discerned evidence of confabulation in their discussions with you. That is, confabulation in the medical sense of invention of circumstantial but fictitious detail about events supposed to have occurred in the past. This is usually to disguise an inability to remember past events. As an historian you are unreliable and it is apparent that any person seeking to assess your mental state has to proceed with the utmost caution. Despite those criticisms I am prepared to accept his findings that at present you do suffer from frontal lobe damage. But to what degree is doubtful. The question is were you suffering from frontal lobe damage at the time you indulged in your criminal activity?
Professor Mullen, a forensic psychiatrist, saw you on two occasions in early 2003. He had read a summary of the evidence and was given copies of the statement of Elizabeth Gligorieva and part of the transcript. He also spoke to your son. He expressed the view that you were “an intelligent man with good interpersonal skills”. This, in my view, is supported by the fact that from very humble beginnings you established a good and profitable business; a no mean feat. Evidence has been given, which I accept, that your drinking pattern altered dramatically in 1999 and I accept that that was due to increasing tension and distress caused by your perceived relationship with Ms Gligorieva. I also accept that your drinking increased in the year 2000. As a result, you suffered from the consequences of gross alcohol abuse affecting your memory, that you were forgetful and irritable. In addition, I am satisfied that during this period you were anxious and because of the failure of your perceived relationship with Ms Gligorieva you became increasingly depressed. The professor stated that in his opinion your conduct was very much influenced by a number of elements arising from your failed perceived relationship. He said that the impact of escalating alcohol abuse, the influence of hopelessness and despair consequent on your depressed mood, and finally the influence of the interaction with your co‑offender were all matters which would explain your behaviour. This resulted in poor judgment and impulsivity. Professor Mullen concluded as follows –
“The appalling behaviour of Mr Maccia which brings him before this court, was in my opinion, at complete variance with his previous character and behaviour. This conduct was part of an extended episode of stalking related, in my opinion, to his perception of rejection by Ms Gligorieva. The alcohol abuse and depression combined with his pre-existing vulnerabilities to exactly this form of rejection led to the extreme nature of the stalking. In my opinion, this very particular concatenation of events, which are unlike to re‑occur, precipitated Mr Maccia into his offending.”
Mr Cummins conducted a number of tests in 2001, and in April, May and June this year. As a result of those tests, Mr Cummins opined the view that your neuropsychological tests results “confirm he does have some acquired brain damage which is impacting adversely on his auditory verbal short term memory, his non‑verbal (visual) short term memory and on his ability to engage in visuo‑spatial problem solving and in his ability to maintain a cognitive set. Mr Maccia is very easily distracted and becomes confused very rapidly. He has significant organisational difficulties”. Mr Cummins then went on to say that in his opinion your cognitive state and memory functioning would have been compromised at the time of your offending behaviour. He said he based that opinion on his observations of you, the testing and conversations with your son. He stated that in his opinion “the results of all the neuropsychological testing imply for the purposes of sentencing Mr Maccia should not be regarded as functioning in a cognitive and memory sense as a ‘normal person’.” I do accept that is your present state.
However, the Crown contests the suggestion that that was your state during the criminal activity. Mr Cummins accepted that he had not read all the statements of evidence. One compares his conclusion with your conduct attested to by a variety of witnesses in the depositions during the period from the beginning of 2000 to June 2001. I earlier set out in some detail your conduct during the month of June 2001 with particular reference to discussions with “Alex Baldwin”. The evidence, in my view, clearly establishes that for many months you were in control of your thinking processes, and quite capable of organising and planning various activities. In this period you continued to run your business. For all intents and purposes it was a one man business and you performed a hands‑on role in relation to all facets of the business. That did not only include purchasing materials but negotiating contracts with some of the big department stores. In addition, you engaged Mr Medini and put in place a situation whereby you were able to pressure him to do your “dirty work”. Your organisation and planning of the stalking covered many months. You cunningly ingratiated yourself with the family for a number of ulterior purposes. Your discussions with “Alex Baldwin” show a person who was thinking, planning and organising a series of crimes with a keen understanding of avoiding detection by the police.
Whilst I accept that during this period you were drinking more, I do not accept that you were suffering frontal lobe damage to an extent that you were not functioning as a “normal person”. I note that Professor Mullen, in a supplementary report after receiving the psychological testing carried out by Mr Cummins, noted that brain imaging studies do not show any gross shrinkage or alteration in your brain. He observed, and I accept that that is not incompatible with functional damage. He goes on to state that the new information did not materially change the opinion he expressed in the first report but simply reinforces his view that your judgment and self‑control were severely compromised at the time when you embarked on the course of conduct which was to lead to the offending. I have little doubt that you lacked self‑control and good judgment. You acted impulsively, without thinking through what you were doing. What you did was completely out of character. You indulged in appalling, bizarre, irrational conduct, completely foreign to the way you had behaved in the past. But this view of your behaviour which to some extent explained your conduct nevertheless must be considered in the light of your criminal conduct, which occurred over a long period. You were very aware of the appalling effect your conduct had upon members of the family, but despite that, you persisted in your cruel and callous conduct.
I accept the evidence of Professor Mullen that the interaction of alcohol abuse and depression left you vulnerable to indulging in uncharacteristic and outrageous behaviour which no doubt compromised your self-control and prudential judgment. I take those matters into account. However, as against this I observe that this conduct was carried out over a period of some six months. It is necessary to weigh those elements in the sentencing exercise. For the purposes of sentencing I accept that these were problems which interfered with your judgment and that you did pursue a course of conduct out of character, but nevertheless I am also satisfied that your conduct demonstrated a person who planned and organised your appalling conduct over a long period of time. I do not accept that your mental state confused to some extent, as it was, makes you an inappropriate vehicle for general deterrence. I do not accept that at the relevant time you were suffering from a psychiatric disorder of such a nature or severity that general deterrence has no part to play in the sentencing process. In my opinion, it does. See R v Tsiaras[16] and R v Yaldiz.[17]
[16][1996] 1 VR 398.
[17][1998] 2 VR 376 at 383 per Winneke A.CJ.
Your prospects of rehabilitation are excellent. I place substantial weight on this consideration in determining the appropriate sentence. You are now aged 63 years. I am sure that you have learned from your passage through the criminal system and that you will not transgress again. Remorse is a relevant matter. I have some difficulty with this aspect of the sentencing process. It appears from evidence given in the experts’ reports, together with what Mr Dane told the court, that your attitude to the charges has vacillated making it extremely difficult at times to obtain instructions from you. At some points you are remorseful and yet at other times you wish to contest the proceeding. Mr Dane informed the court that at times you gave different instructions to him from those given to your solicitor. I fully understand the pressures upon a person awaiting his trial or sentence and I appreciate that sometimes an accused person does go through a variety of thinking processes, some of which are inconsistent. After this passage of time I am prepared to accept that there is some remorse and I take that into account.
I also take into account what the character witnesses said about you. You are a man to admire for your efforts in coming to this country, and with limited education you built up a good business through hard work and dedication. As sometimes happens, those who work hard reap rewards of wealth but lose on the home front. This appears to have happened to you.
The incitement to murder is a serious offence. You thought about this over a period of days, having raised it first with Mr Medini and then discussing it, planning it and organising it with “Alex Baldwin” over a number of days. Further, you paid him half the money for the job. The aggravating factor is that you considered, planned and organised this crime over a number of days, doing all that was necessary to execute your part of the arrangement and more importantly taking precautions to avoid any suspicion of you. The offence was pre‑meditated. You were indeed fortunate that the person with whom you were making the arrangements was a police covert operative. As far as you were concerned you expected the arrangement to be completed. In determining the proper sentence in regard to this count I also take into account the matters referred to, namely, the mitigating and personal factors which I have already discussed.
It is my task, after considering and taking into account all relevant matters, to determine what are the appropriate sentences which give effect to the principles of totality and proportionality.
You are convicted on each count and sentenced as follows:
On Count 1, you are sentenced to a period of six years’ imprisonment.
On Count 2, you are sentenced to a period of six years’ imprisonment.
The prima facie rule set out in s.16(1) of the Sentencing Act 1991 requires that the two sentences be served concurrently “unless otherwise directed by the court”. But whether or not a court would direct otherwise will depend upon the circumstances of the case. The court’s function has been discussed in a number of cases. See R v Lomax[18] and DPP v Grabovac.[19] In the latter case Ormiston JA[20] said –
“What the judge should have done was to fix the appropriate term for each offence, then to direct such cumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process. Obviously a judge could fairly fix on a degree of concurrency and cumulation with an eye to what would not offend against the principle of totality; after all that is the object of the rules relating to both concurrency and cumulation.”
[18][1998] 1 VR 551.
[19][1998] 1 VR 664.
[20]At 683.
Mr Dane submitted that I should direct that the two sentences be served concurrently. He submitted that the incitement to murder was a continuation of the overall course of conduct and was not separate and distinct from it. Ms Pullen on behalf of the Crown, however, submitted that the incitement to murder was an additional step in the conduct, and did represent a separate and distinct approach to a different state of affairs. She emphasised the nature of the proposal and the fact that you were using a person other than Mr Medini to carry out this appalling crime. I accept Ms Pullen’s argument. Of course, the mere fact that the offences constitute a single course of conduct does not preclude the court from making a cumulation order. See R v Jennings.[21]
[21]Unreported decision of the Court of Appeal delivered 2 June 1998 per Tadgell JA.
But in any event, giving effect to the principles of totality, in my opinion part of second sentence should be cumulative to the first sentence. Accordingly, I order that two years of Count 2 be served cumulatively with Count 1, and this results in a total effective sentence of eight years. In my opinion, eight years is the appropriate sentence for your conduct which occurred over a prolonged period and is proportionate to the gravity of the crime after taking into account the mitigating and personal factors.
It is now necessary to consider the minimum period of imprisonment. Under s.11(1)(b) of the Sentencing Act 1991, the court is bound to fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which makes the fixing of such a period inappropriate. In my view, the general rule applies, and I will fix a minimum period. It must be borne in mind that the minimum term is part of a sentence and the court is concerned when fixing the minimum period with determining what is the appropriate period that you should be imprisoned. See R v Chan.[22] In that case the Full Court said that there should not be too great a disparity between the sentence and the non‑parole period but expressed that as a general rule.
[22](1994) 76 A Crim R 252 at 255.
In that case the court emphasised that the non‑parole period is part of the sentence and must satisfy the general principle that the “punishment must fit the crime”. The court said that the same factors which are taken into account on the head sentence are again weighed carefully and as a general rule the factors that are favourable to the prisoner are given more weight, i.e., the mitigating factors, the risk to the community upon release and rehabilitation. “The intention of the legislature is that a minimum term is of benefit to the prisoner … “. See Iddon and Crocker v R[23] and Bugmy v R.[24] As I have just stated, the general rule is that there should not be too great a disparity between the sentence and the non-parole period. But that is the general rule and each case must be considered in the light of its own circumstances and there may be reasons why the general rule should not be followed.
[23](1987) 32 A Crim R 315 at 325-6.
[24](1990) 169 CLR 525 at 530-32 and 536-38.
There are, in my view, a number of features about this case which justify departure from the general rule. First, there are the mitigating factors. Secondly, I am confident that you will not break the law again. Thirdly, you are now aged 63 years and will be much older when eligible for parole. Fourthly, I am satisfied that you will learn from your experience. It is quite contrary to the conduct of the first 60 years of your life. Fifthly, I think a long period of parole will be an ever‑present reminder to you to well and truly put behind you any thoughts of revenge. You have demonstrated in the past since your arrest a degree of erratic thinking in relation to what has occurred and I am sure with the passage of time and a lengthy period of parole hanging over your head that you will well and truly put those thoughts out of your mind, and concentrate on living your life out peacefully and without any feelings of anger. I feel confident that you will learn from this experience and your rehabilitation back into the community will be enhanced by conditional release sooner rather than later. Indeed, Ms Pullen on behalf of the Crown expressed the view, with which I agree, that a fairly lengthy period of parole would be appropriate in this case.
I think you will benefit from a reasonably lengthy period of parole which will ensure a degree of awareness that any transgression will land you very promptly back in gaol.
In my opinion, taking into account all relevant matters, the appropriate minimum term during which the prisoner is not eligible to be released on parole is five years.
Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of imprisonment is to be reckoned as from 20 June 2001 when you were arrested. I declare that period to be 844 days inclusive of today’s date and I direct that the records of the court note the said declarations.
Application was made on behalf of the informant for an order pursuant to s.464ZF(2) of the Crimes Act 1958 that the prisoner, Benito Maccia, undergo a forensic procedure. The sub-section gives authority to a member of the police force to make application for an order directing a person to undergo a forensic procedure which is defined by s.464(2) which in effect means taking a sample from any part of the body of the person. The power to make an order is confined to a situation where the person is found guilty of “a forensic sample offence” or of an offence “of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence”. “Forensic sample offence” means any offence specified in Schedule 8, see s.464ZF(1).
The conviction on Count 2 concerns an offence of incitement to commit a forensic sample offence, namely, murder. I am satisfied that an order can be made in the circumstances of the case. The next question is whether an order should be made. Mr Dane submitted that an order should not be made. He emphasised that the only practical effect of the taking of the sample would be to add to what he described as an addition to the DNA data base, that the prisoner was most unlikely to ever commit any other offence, and also because of his age. The type of sample to be taken is of blood and/or saliva. See s.464ZF(4). Section 464ZF(8) requires the court to take into account the seriousness of the circumstances of the offence and must be satisfied that in all the circumstances the making of an order is justified. For reasons which I have already stated there is no doubt that the incitement to murder offence was extremely serious. Whilst I note the age of the prisoner and the unlikelihood that he may offend in the future, nevertheless, in my opinion, the seriousness of the offence and the public interest require an order to be made. Accordingly, I am prepared to make an order that pursuant to s.464ZF(2) of the Crimes Act 1958, Benito Maccia undergo a forensic procedure for the taking of blood and/or saliva samples in accordance with sub‑division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the data base. An order has been provided to me and I am prepared to sign the order.
Mr Maccia, I am bound to inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted. What is sought from you is the taking of blood and/or saliva samples. I think you can rest assured that if you do not oppose the taking of the sample and indeed, you are ordered to so provide it, it will be a relatively simple and pain free procedure.
I make the following orders –
(i)That Benito Maccia is convicted that at Melbourne between 1 November 2000 and 19 June 2001 he stalked Slavoljub Tasevski, Borce Vasilevski, Milanco Gligorieva and their families and that he be sentenced to a period of six years’ imprisonment.
(ii)That Benito Maccia is convicted that at Lalor on 19 June 2001 he incited “Alex Baldwin” to murder Slavoljub Tasevski and that he be sentenced to a period of six years’ imprisonment.
(iii)That two years of the second count being the incitement to murder, be served cumulatively with the sentence imposed in Count 1 making a total effective sentence of 8 years.
(iv)That the said Benito Maccia serve a term of five years’ imprisonment before he is eligible to be released on parole.
(v)Pursuant to s.18(4) of the Sentencing Act 1991 declare that the period of imprisonment is to be reckoned as from 20 June 2001 and further declare that that period is 844 days inclusive of today’s date and the court directs that the records of the court note the said declarations.
(vi)That pursuant to s.464ZF(2) of the Crimes Act 1958, Benito Maccia undergo a forensic procedure for the taking of blood and/or saliva samples in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the data base.
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