R v Maglovski (No 2)
[2013] NSWSC 16
•04 February 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Maglovski (No 2) [2013] NSWSC 16 Hearing dates: 1, 5, 6, 7, 8, 9 November 2012, and 15 November 2012 (sentencing hearing) Decision date: 04 February 2013 Jurisdiction: Criminal Before: Beech-Jones J Decision: The offender is convicted and sentenced to a term of imprisonment. The Court sets a non-parole period of sixteen years commencing on 8 October 2011 and ending on 7 October 2027 with an additional term of four years commencing on 8 October 2027 and ending on 7 October 2031.
Catchwords: CRIMINAL LAW - sentencing - murder - domestic homicide - break down of marriage - husband kills wife - conviction following trial - provocation rejected by jury - whether provoked by deceased for purposes of mitigation on sentence - whether loss of self control - relevance of expert sociological evidence on "honour killing" in Macedonian culture - whether intention to kill - offender aged sixty years - mitigating factors - no prior convictions - prior good character - unlikely to re-offend - rehabilitation - whether remorseful - pre-trial disclosures of defence - general deterrence, retribution and denunciation. Legislation Cited: - Crimes Act 1900 - s 19A, s 23
- Crimes (Sentencing Procedure) Act 1999 - s 54A, s 61(1)Cases Cited: - Barton v R [2009] NSWCCA 164
- Goebel-McGregor v R [2006] NSWCCA 390
- MAH v R [2006] NSWCCA 226
- Markarian v R [2005] HCA 25; 228 CLR 357
- Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1
- Muldrock v R [2011] HCA 39; 85 ALJR 1154
- R v Koloamatangi [2011] NSWCCA 288
- R v Maglovski [2012] NSWSC 1378
- R v Shee [2012] NSWSC 1422
- Stingel v R [1990] HCA 61; 171 CLR 312Category: Sentence Parties: Crown (Prosecutor)
Dragi Maglovski (Offender)Representation: Counsel:
P.A. Leask (Crown)
J.G. Spencer (Offender)
Solicitors:
Crown (Director of Public Prosecutions)
George Sten & Co (Offender)
File Number(s): 2011/321270
Judgment
On 1 November 2012, Dragi Maglovski was arraigned on an indictment that charged that he, on 8 October 2011, at Hurstville in the State of New South Wales, did murder Rosa Maglovski, also known as Rosa Maglovska. Rosa Maglovska was the offender's wife.
To that charge the offender pleaded not guilty to murder, but guilty to manslaughter. The Crown did not accept that plea. The trial proceeded. On 12 November 2012 the jury returned a verdict of guilty to the charge of murder.
I heard submissions and received evidence on sentence on 15 November 2012. I was due to hand down this sentence on 14 December 2012. However, as a result of the offender's ill health, the imposition of sentence was adjourned until 1 February 2013. Due to a difficulty with prison transportation the matter had to be again adjourned until today, 4 February 2013.
The maximum penalty for the offence of murder is life imprisonment (s 19A Crimes Act 1900). I am required to impose a life sentence if I am satisfied that the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that form of sentence (s 61(1) of the Crimes (Sentencing Procedure) Act 1999, "the Sentencing Act"). It suffices to state that I am not satisfied that a life sentence is appropriate in this case.
Section 54A of the Sentencing Act specifies a standard non-parole period of twenty years for the offence of murder. In sentencing the offender I am required to be mindful of the two legislative guideposts constituted by the maximum sentence of life and that standard non-parole period (Muldrock v R [2011] HCA 39; 244 CLR 120 at [27]). However, I am not required to undertake the sentencing exercise by asking whether there are reasons for not imposing the standard non-parole period of twenty years (Muldrock at [25]). Instead, bearing in mind the two legislative guideposts, I am required to identify all the factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence (Markarian v R [2005] HCA 25; 228 CLR 357 at [51] per McHugh J; Muldrock at [26]).
Background
I will first set out certain undisputed facts concerning the offence. These are taken from the evidence at the trial.
As at October 2011 the offender and his late wife had been married for over twenty-five years. They had lived at the same address in Hurstville for over twenty years. They had built the home on that property themselves. They lived at the home with their two adult children, Silvana now aged twenty-six, and Daniel now aged twenty-one.
It is necessary to briefly describe the layout of the family home. The house had two separate sections. As one moved through from the front entrance towards the back of the house one passed the three main bedrooms occupied by Mrs Maglovska, Silvana Maglosvka and Daniel Maglovski into a living area and then to a kitchen at the rear. This whole floor was described in the evidence as the "front section". The kitchen in this section of the house was rarely used. As the topography of the house was such that the land fell away at the rear this rarely used kitchen was a storey or so above the backyard. At the back of this kitchen there were outside steps leading down to the backyard. At the bottom of the steps in the lower storey of the house is what was described in the evidence as the back section of the house. It consists of three rooms: a laundry that faces onto the backyard, a combined kitchen and living room, and a small room leading off the combined kitchen and living room that was used to store clothing.
There was no internal connection between the back section and the front section of the house. There was also no internal connection between the laundry and the kitchen in the back section.
For some time Mrs Maglovska and the offender shared one of the three main bedrooms in the front part of the house. About eight to nine months prior to her death the offender and Mrs Maglovska started sleeping in separate parts of the house. Mrs Maglovksa stayed in her bedroom in the front section. The offender started sleeping in the small room that led off the kitchen and living room in the back section.
On the morning of Saturday, 8 October 2011, the offender woke at approximately 8:00am, had coffee and walked his dog. At some point during the morning Mrs Maglovska and Silvana went to inspect properties together. Silvana was intending to purchase a unit. Silvana and her mother returned before midday. Silvana prepared herself to leave again to meet a friend in the city for lunch. She left the house at some time between 12:15 to 12:30. I will refer later to her evidence as to what she observed just prior to her departure. However at the time of her departure she recalled that both her parents were in the laundry in the back section. Her brother, Daniel, was in his room in the front section listening to music.
At 12:48pm the offender rang 000. He placed the call from a phone in the kitchen in the back section. He told the 000 operator that "I kill my wife" and that "I stab her". He said "We were in a fight, she want a divorce".
Approximately ten minutes later the first police officer arrived at the scene. He went into the front of the house and disturbed Daniel Maglovski in his bedroom. Daniel was wearing headphones. He had no idea that his mother had been killed. The officer returned to the front of the house and saw the offender standing outside. The offender was covered in blood and had a cut hand. He told that officer "my wife, I killed her".
Other police officers and an ambulance arrived at the scene. Mrs Maglovska's body was discovered in the kitchen in the back section. She was lying on her back. She had a number of stab wounds and bruising. An ambulance officer initially detected a faint pulse, but she did not survive long.
The offender repeated his admission of killing his wife to a number of the officers at the scene. Three of the officers gave evidence during the trial. Each described the offender as being in a very calm state. The most senior of them described him as not "showing any real emotion at all. Very cold", and that "he seemed very matter of fact, wasn't trying to explain things or move away. Just standing there ...".
The offender was transported from the scene to a nearby hospital to have the wounds to his hands attended to. Later, he was taken to Hurstville Police Station and interviewed. His interview was electronically recorded (an "ERISP"). I describe aspects of the ERISP in more detail below, however, it suffices to state that he told the police officers of the breakdown of his marriage. He described how in the laundry that morning his wife had mentioned her desire to divorce him which had led to an exchange of words and her spitting on him. He stated how this had led to them fighting. He said that he had punched her and then stabbed her.
A forensic pathologist, Dr Matthew Orde, performed an autopsy on the deceased. Dr Orde gave evidence at the trial. He observed a number of sharp force and blunt force injuries to her body. The blunt force injuries involved extensive bruising over her head and torso. I will not describe them all but they included bruising to the central and right side of the rear of the scalp and a "complex lacerated defect" on the left side of the scalp being an area where the skin had torn due to blunt force. He discovered that the deceased's nose was "fractured or broken" and she had a black eye on the left side of her face which had closed due to swelling of the left eyelid. In the torso region he described bruising in the shoulder and chest regions.
With the sharp force injuries Dr Orde divided them into two sub-categories: cuts which were deeper than they were wide, which he described as stab wounds, and wounds which were more shallow than they were wide, which he said were commonly referred to as slash wounds. He observed six stab wounds to the head and sixteen slash wounds to the head and neck area. He also described four stab wounds to the torso and a number of shallow wounds on the hands which he described as "entirely in keeping with those so-called defensive injuries". Altogether he observed what he described as ten stab wounds and 29 slash wounds.
Dr Orde expressed the opinion that "death would have been a consequence of the multiple injuries sustained by the deceased".
Issues at the trial and findings
As I have stated when he was arraigned the offender pleaded guilty to manslaughter but not guilty to murder. This plea was entered on the basis that he admitted that it was his voluntary act(s) that caused the death of his wife, and that he undertook those act(s) with an intention to cause her death or inflict grievous bodily harm upon her. However, the plea put in issue whether the Crown could prove beyond reasonable doubt that he was not acting under provocation as provided for in s 23 of the Crimes Act. This issue was resolved adversely to the offender. It is necessary to outline some of the evidence at the trial in order to place the jury's verdict in context.
I will first address the evidence concerning the background to the events of 8 October 2011 and then the evidence concerning the killing of the deceased on that day.
I have already referred to the family background above. The offender and Mrs Maglovska were married in Macedonia between 1982 and 1983. At the time they were married the offender was 30 and Mrs Maglovska was nineteen years old. At the time of her death Mrs Maglovska was 48 years old. Her daughter described her as an independent and ambitious woman. At least up until the time that the offender and Mrs Maglovska commenced sleeping in different rooms there was no suggestion of any violence or aggression in their marriage. The offender had no prior convictions and I directed the jury as to the use that they could make of his good character on that account in their deliberations.
In his evidence at the trial the offender stated that about nine months before 8 October 2011 his wife told him that she did not want to sleep with him any more because he was "stinking". He said that this made him feel "extremely bad" and "hurt". The evidence of Silvana and Daniel confirmed that he did start sleeping downstairs at around this time. I accept this part of the offender's evidence.
The offender then stated that within a few weeks of him moving to the back room his wife told him "I can't live with you any more". When they were arguing she said "I don't want to sleep with you any more" referring to their sexual relationship. He said this made him feel humiliated and "like I don't exist any more". I accept this evidence.
The deceased operated a business cleaning offices in the years prior to her death. The offender would often undertake work for the business out of hours. In order to do so the deceased would give him swipe cards to access the offices. He stated that about six weeks prior to 8 October 2011 the deceased took one of these site access cards from him. He said she told him "You're not going to work anymore. You're too slow and I'm going to employ another man". He said this made him feel "very humiliated".
The offender said that on the long weekend before 8 October 2011 his wife went to Canberra and Queanbeyan to work. He referred to this in his ERISP. When asked whether the deceased's attitude had changed, the offender stated that "she wanted to be a man and I a woman". In his evidence he said that his wife said "I don't want you to come" and "I don't want you any more" and she stayed over night. He described this as a "great humiliation".
The offender also said his wife told him that she did not need him any more. He said that if they separated he would feel embarrassed and ashamed in front of the local Macedonian community and his children. He stated that it was his belief that the Macedonian culture viewed divorce as "very bad".
These events and beliefs were recounted by the offender as giving context and background to what was said to be the deceased's provocative conduct towards him on 8 October 2011. The jury's verdict does not necessarily mean that they rejected this evidence. For the purposes of sentencing I accept these matters as far as they go. While the offender no doubt found many of these events distressing, they were simply the playing out of his wife's decision to bring their marriage to an end. Over the years the dynamic of their marriage had changed as Mrs Maglovska had matured, raised her children, commenced work and established her cleaning business.
8 October 2011
When he was asked by the Crown prosecutor why he killed his wife the offender stated:
"Because she spat in my face and she didn't want to live with me anymore. I've been working all my life for that house and all of a sudden it had to be destroyed overnight".
This answer encapsulated the offender's case on provocation which the Crown had to negative. The jury were instructed that the Crown could do so if it proved beyond reasonable doubt any one of two matters. The first is that the act of the accused which caused the death of the deceased did not result, in fact, from a loss of self-control on the part of the accused that was induced or caused by some conduct on the part of the deceased (the "first limb"; see s 23(2)(a) of the Crimes Act). The second was that the conduct of the deceased was not such that it could possibly have induced or caused an ordinary person in the position of the accused to have so lost his self-control as to have formed an intention to kill the deceased or to inflict grievous bodily harm (the "second limb"; see s 23(2)(b) of the Crimes Act).
In addressing the first limb the offender pointed to the act of the deceased in spitting in his face as the culmination of her efforts over a period of months to humiliate him and end their marriage. The offender contended that this gave rise to the reasonable possibility of a loss of self control on his part.
In his evidence at the trial, the offender gave the following account about the events that occurred after Silvana and his wife returned from inspecting properties. He said that Mrs Maglovska was in the laundry and he was nearby cleaning the garden. He said they spoke in the laundry and she said something to the effect: "I won't be doing your washing much longer". He also said that she stated words to the effect: "It's finished with us ...".
The offender said that the deceased walked out of the laundry and then through the kitchen of the back section and into the small room that runs off it. He said she was shuffling some papers. He entered the room after her. During at least part of the conversation that ensued he said "Why are you doing this to me? We [are] supposed to be preparing weddings for our children, not to do this".
The offender said that the deceased then spat in his face. She said "I don't want to live with you any more" and "I don't like you any more". In answer to a question from the Crown Prosecutor the offender said that "once she spat on me I couldn't stand it, I couldn't hold it, and the fight started".
The offender said that he then pushed the deceased onto the couch and was heading towards her when she kicked him in the chest, stomach and genitals. He said that this was painful and he punched her with a closed fist to the left side of her head. He said that she took a glass Coca Cola bottle and swung it, but he fended it away and it shattered on the tiled floor. He said he cut his hands trying to get the partially shattered remains of the bottle out of her hands. He said she hit and scratched him with her other hand while he was trying to get the coke bottle away from her. He said he then punched her. She fell to the floor. He punched her again.
The offender said he then walked about 2.5m to 3m into the kitchen and grabbed a knife from the kitchen sink. He said the deceased had crawled or scrambled while bent over from the small room into the kitchen. The offender said he remembered stabbing her twice, once to her back and the other to her throat. He said he then threw the knife away and dialled 000. He walked into the laundry to wash his hands so that he could check the extent of his injuries, and then went outside to wait for the police.
In his ERISP the offender was asked whether his wife said anything during his attack. He stated as follows:
"A And then I hit her again. And we started ...
...
Q 318 Fist?
A Fist. Everything.
Q 319 Was she saying anything?
A No. She say, 'No. Please. Don't. Don't. Don't ...'
Q 320 And then what happened? Keep talking us through what happened.
A Keep, keep, ah, keep fighting and that's it. I stab her and that's it."
As I have stated the offender conceded that he inflicted fatal injuries upon the deceased with the intention to kill or inflict grievous bodily harm. I find that he intended to kill the deceased. In his ERISP he stated:
"Q 343 What did you think was going to happen when you stabbed her?
A She going to die.
Q 344 So you knew she was going to die?
...
A Yeah. Knew, I knew because we were fighting. Maybe ...
...
Q 348 And what did you think would happen to her?
A Say she will die."
It is necessary to note three aspects of the offender's account which were the subject of specific contest.
First, in cross examination the Crown prosecutor challenged the offender on whether Mrs Maglovska in fact spat on him. The offender restated that she did. He said that consistently in his ERISP and in his evidence. I am acutely conscious of the possibility that such assertions can be made safe in the knowledge that they cannot be contradicted. Nevertheless, I accept that it occurred. However, for the reasons I will explain, I do not consider that it has the significance that the offender sought to attribute to it.
Second, I have already summarised Dr Orde's evidence concerning the bruising, fractured eye socket and number of sharp force wounds to Mrs Maglovska's body. Dr Orde identified ten stab wounds. The offender could only remember stabbing her twice, although he stated "but I don't remember". Counsel for the offender, Mr Spencer sought to explain the discrepancy by pointing to the shattered glass as a potential source of some of the stab wounds. Dr Orde conceded that some of Mrs Maglovska's minor injuries could have resulted from the broken glass, but said that it was "unlikely" that the glass caused any of the deeper stab wounds. In my view Dr Orde's evidence establishes that the offender stabbed the deceased at least ten times and beat her severely. It was a savage albeit quick attack.
Third, Silvana Maglovska's evidence was that just prior to her leaving the house she stopped at the door at the top of the stairs when her parents were in the laundry. She states that she heard her father say "You watch, you watch what will happen". She said that was the first time she ever heard her father threaten her mother. The offender denied saying that. This evidence was potentially of great significance to the issue of provocation as it suggests that the offender had an aggressive state of mind in the laundry, before he was spat on.
Mr Spencer submitted that the jury's verdict does not necessarily mean that it accepted Silvana's evidence on this point. He contended that the jury could have found provocation was negatived because they were satisfied beyond reasonable doubt that the Crown had disproved the second limb of provocation; i.e. that the conduct of the deceased was not such that it could possibly have induced or caused an ordinary person, in the position of the offender, to have so lost his self-control as to have formed an intention to kill the deceased or to inflict grievous bodily harm (s 23(2)(b)).
I agree that it does not necessarily follow from the jury's verdict that it accepted this part of Silvana's evidence. It is nevertheless my function to determine whether it should be accepted. Mr Spencer correctly pointed out that this evidence did not appear in her first two statements which were provided on the day of the offence and 13 October 2011 respectively. It only appeared in her third statement, dated 6 September 2012.
I heard evidence concerning the origins of the material in the third statement on a voir dire conducted during the trial. The voir dire concerned the admissibility of some other evidence sought to be adduced from Silvana Maglovska that was only revealed in that statement (R v Maglovski [2012] NSWSC 1378). Ms Maglovska stated that she was under a lot of stress at the time of her first two statements, being so close in time to the death of her mother but after that time she had received "counselling" and that "I've tried to block a lot of this out. Speaking to [the counsellor] about the issue has re-jigged my memory". Although I am conscious that Silvana Maglovska is deeply wounded by her father's actions and may have cause to give evidence adverse to him, I found this explanation convincing and her evidence compelling. I accept it.
A loss of self control?
This leads to the question of whether the offender did in fact lose self control when he killed his wife. I have described the jury's verdict as being explicable by reference to the jury not being satisfied of the first limb of provocation, the second limb of provocation, or both.
I am satisfied beyond reasonable doubt that the offender did not experience a loss of self control in the sense referred to in s 23(2)(a) of the Crimes Act. The offender may have suddenly risen to anger and possessed a desire to lash out as he saw his world and sense of self disappearing, but he did not lose his normal ability to reason.
This finding is based on the following. First there is the evidence of Silvana that I have referred to above. It demonstrates that the offender's anger was roused in the laundry and he then pursued the deceased into the small room that ran off the kitchen in the back section. He became aggressive and was on the verge of becoming violent before he was spat on.
Second, there was the offender's conduct in walking into the kitchen area from the small room to obtain a knife, returning to the adjoining room, and then stabbing the deceased while she was reeling from his blows and scrambling into the kitchen area. The deliberation and time involved in so acting suggests he was not acting under any relevant loss of self control, although that is not determinative (see s 23(3)(b)).
Third, there was the composure demonstrated by the offender in immediately dialling 000 and speaking to the operator. He sounds relatively calm.
Fourth, there is the description given by the police officers who attended at the scene and spoke to the offender. Their description of his composure is in stark contrast to the distress felt by an experienced paramedic who attended the scene.
Fifth, there is the offender's composure and recollection in the ERISP conducted on the evening of the crime. I accept that if the offender lost his self control around 12.45pm, the effect of that loss of self control may not be evident in an ERISP that commences at 8.16pm that evening. However, during the ERISP the offender displayed an ability to recall the events surrounding his wife's death and appears to be in a similar emotional state to that suggested by the 000 call and the police descriptions of the scene.
In the end result I am satisfied beyond reasonable doubt that the offender made a deliberate decision to attack his wife. He intended to kill her. However his actions were not premeditated. His anger rose up on 8 October 2011 after she made it clear that their marriage was over and he realised she was determined to finally leave. After he started attacking her he had the ability to stop, but instead stabbed her while she begged him to stop.
Victim impact statement
Silvana Maglovska delivered a victim impact statement. She described how her and her brother's lives had changed in an instant without warning following their mother's death. She is consumed by unanswerable questions as to how this crime could have happened, why her father did not stop before it was too late, and whether her mother's death would have been avoided if she had taken her mother to lunch with her on that fateful day. She describes how, in the immediate aftermath of the incident, she and her brother were left the task of organising their mother's funeral. They chose not to have an open coffin due to the injuries to their mother's face. Her sense of loss is indescribably profound:
"Mum was supposed to help me, help me plan for my wedding, help me purchase my first home, help me raise my kids but instead I am all alone."
Silvana Maglovska's statement painted a vivid image of her and her brother lost and in pain as a consequence of the destruction of their family and all of the happy memories associated with it.
The significance of victim impact statements was discussed in MAH v R [2006] NSWCCA 226 at [61] to [63]. I do not treat them as evidence which I can act on, or material which operates in aggravation of the offence, or material that could be used otherwise adversely to the offender. That said, the Court acknowledges the deep suffering caused to Silvana and Daniel as a result of the offender's conduct.
The offender's personal history
Tendered on sentencing was a report from a forensic psychologist, Ms Anna Robilliard. Ms Robilliard concluded that the offender does not suffer from any psychiatric or psychological injury. Her report conveniently sets out aspects of the offender's personal history which are consistent with the evidence led at the trial.
The offender is now sixty years old. He was born in a small village in Macedonia in 1952. He was the youngest in a family of four boys and three girls. His sister is seventy-five years old and lives in Australia. The remainder of his surviving siblings live in Macedonia. His parents are both deceased. Ms Robilliard describes him as having grown up in a close-knit, stable family in which he was never exposed to violence, neglect or abuse. Religious gatherings were said to be an important part of family and village life.
The offender completed his secondary schooling at fifteen or sixteen years of age. He had repeated one year to that time. After finishing schooling, he commenced an apprenticeship as a carpenter. When he was twenty-two, the offender was sponsored to come to Australia by his older sister. He lived with her and her family in Sydney for about seven years. He found work in various factories. In his late twenties he returned to Macedonia because his mother was ill. She died soon after he arrived. At that time he met the deceased, and he remained in Macedonia for two years while they courted and married. As I have stated, his wife was nineteen years old when they were married, and the offender was aged thirty. They returned to live in Australia in 1984.
Silvana was born in 1985. Two or three years after her birth the offender and the deceased bought their home in Hurstville. Daniel was born in 1991. Some years later the offender and his wife demolished their Hurstville home and built a new house on the property.
The offender has worked with the same carpentry firm making cabinets, office furniture and kitchens since the 1980s. On weekends he also did carpentry work based on recommendations from friends. The deceased worked as a cleaner, and at some point established her own cleaning business, which sub-contracted to other cleaning companies. The offender would assist her with the cleaning jobs after he finished work at night.
In his evidence at the trial the offender described his and his wife's social life as centred upon activities with other families in the local Macedonian community.
I have described the background to the offence above. There is nothing to suggest that there was any substantial marital disharmony until the last year of Mrs Maglovska's life. There was no suggestion from either of their children or any other witness that prior to this deterioration there had been any aggression or violence in their relationship.
As I stated earlier, the offender has never been convicted of an offence.
Ms Robilliard did not identify any psychiatric or psychological illness or disorder on the part of the offender. She also noted that he did not report any particular difficulties with incarceration and stated that he was likely to continue to adopt a "quiet and socially isolated place in the prison community".
In relation to his remorse and prospects of rehabilitation, Ms Robilliard stated as follows:
"It seems he had no mechanisms for releasing tension within the relationship and endeavoured to contain and control his emotional hurt and pain.
...
During our meeting he expressed apparently sincere regret and remorse over the death of his wife stating he still loves her.
...
This man has no history of anti-social behaviour or of violent behaviour nor did he give a history of excessive substance abuse which might contribute to loss of behavioural control. The incident in question occurred in the context of a very long term, intimate relationship which underwent marked changes that affected the [offender] deeply. His cultural perspectives and expectations made the dynamics of the changed relationship between himself and his wife acutely painful and emotionally distressing and Mr Maglovski appeared to lack strategies for releasing stress and tension or ways of addressing differences and conflict in his marriage. His capacity to control his strong emotional responses to their changed circumstances was overcome by small but highly significant incidents which occurred between them on the morning of 8 October 2011. The cumulative impact precipitated a sudden and violent outburst by the [offender] which was unprecedented in the history of his marital relationship. His expressions of regret and remorse appear to be sincere and genuine. The likelihood of a similar set of circumstances reoccurring appears to be negligible."
I consider the questions of remorse and the offender's prospects of re-offending below. At this point I note three matters about this analysis.
First, I do not take Ms Robilliard's reference to a "sudden and violent outburst" as expressing an opinion one way or another as to whether the conduct of the offender involved a "loss of self control" within the meaning of s 23(2)(a) of the Crimes Act. I have already found that there was no such loss of self control, however, that finding is not inconsistent with Ms Robilliard's description. In my view, it is an accurate one.
Second, Ms Robilliard's description of the position the offender found himself in and how that eventually contributed to his offending is persuasive. As I have stated at the time the offender married his wife he was thirty and she was nineteen. It can be expected that her comparative youth at the time, coupled with her arrival in a foreign country, would lead to her being significantly dependant upon her husband. Nevertheless, there is no doubt that Mrs Maglovska was an extremely resourceful woman. Over time, her position and the nature of their relationship changed dramatically as she became more independent. Ms Robilliard's description of the offender as someone who had no mechanisms for addressing the difficulties in their relationship strikes me as persuasive. The offender was simply ill-equipped to deal with the changing nature of his relationship with his wife, and could not accept the exercise by her of her right to determine a future without him.
Third, Ms Robilliard refers to his "cultural perspectives and expectations". In his evidence at the trial the offender stated that if he and his wife separated he would feel embarrassed and ashamed in front of the local Macedonian community and his children. As I have said, he gave evidence that it was his belief that the Macedonian culture viewed divorce as "very bad". He told Ms Robilliard that their divorce would not only humiliate him, but also reflect poorly on the children. This evidence assists in placing the offender's emotional state in context in order to understand how the events of 8 October 2011 transpired. It stands in contrast to the sociological material that was tendered on sentence which I address next.
The sociological evidence
Also tendered on the hearing was a report from a professor of sociology from the University of Sydney, Michael Humphrey, entitled "Honour Killing and Macedonian Cultural Background". Under the heading "Macedonian Culture and Gender", the author states:
"Macedonia remains a traditional and patriarchal culture. Indicators such as a high level of domestic violence and very low divorce rate suggest the persistence of very conservative gender roles. High levels of domestic violence indicate that men continue to rule households and the State does not intervene in domestic disputes. The divorce rate of 5% of marriages in Macedonia is very low by international standards - e.g. around 33% in Australia and more than 50% in some Western European countries. This low divorce rate indicates women remain within marriages and are unable to leave, even if there is domestic violence.
Macedonian society, like the Balkans in general, remains patriarchal in which men hold authority and have responsibility for providing for the family. ... Women in particular are made to carry the burden of honour in their moral behaviour. Across Mediterranean cultures this is referred to as the honour code. Where women's behaviour - imagined or real - is publicly seen to shame or humiliate the family and to the head of the household honour killing is an institution which is culturally understood as a way to ritually cleanse the family of the shame." (emphasis added)
Taken at face value, this last statement might be seen as conveying an assertion that there is a "cultural understanding" in Macedonia that some form of behaviour by women necessitates a ritual cleansing of "the family of the shame" of their conduct in the form of domestic homicide.
An opinion of this kind is likely to create much heat but shed very little light in sentencing proceedings. In any event, it has a number of difficulties. The existence of high levels of domestic violence within a society accompanied by apparent State inaction may justify a well founded fear of persecution on the part of a woman sufficient to establish refugee status (Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1). However that falls a long a way short of demonstrating a cultural understanding of wife killing as a form of ritual cleansing. Even if such a matter was established, it would be highly unlikely to assist any offender in the assessment of the appropriate sentence in this country for an offence of murder. If the offender shared that cultural understanding and it was said to be operative upon the offender at the time of the commission of an offence, then considerations of both general and specific deterrence would suggest that a much longer, not shorter, sentence would be warranted. It is noteworthy that in this case the offender did not assert any such understanding. He did not assert that he carried out any "honour killing" or shared some similar type of cultural understanding which was operative upon him when he killed his wife.
In any event, it is not necessary to consider this further. At the outset of his report when describing his qualifications Professor Humphrey states as follows:
"The anthropological opinion about honour killing presented in this report is not based on detailed ethnographic research in Macedonia or the Macedonian immigrant community in Australia. It is based on extensive knowledge about honour killing as an institution practised across diverse cultures, especially in the Mediterranean. The countries I have undertaken field research in relation to political and family violence include Australia, Bosnia, Lebanon, Jordan, Pakistan, South Africa and Argentina. I have special knowledge of Muslim cultures and have undertaken field research on Lebanese Muslims in Australia with a focus on family conflict and homicides including honour killing." (emphasis added)
This level of expertise and study does not justify the expression of an opinion of such a severe nature concerning Macedonia. Only one of the areas that he has studied is near Macedonia, namely Bosnia. Exactly what other countries or areas in the Mediterranean besides Lebanon justified the conclusion drawn were not identified. If they were, the conclusion may well come as a surprise to their inhabitants.
The balance of Professor Humphrey's report addresses what was stated by the offender in his record of interview. The report expresses opinions about the likely level of perceived insult which would have flowed from the conduct of the deceased, especially her statements as to the ending of the marriage and her act of spitting. Sociological evidence as to the severity of the nature of a provocative act might be of some assistance in explaining to an Australian Court the gravity of the insult to a person of a different culture which might otherwise seem innocuous (see Stingel v R [1990] HCA 61; 171 CLR 312, 327). However, in light of the jury's verdict and my findings, it is unnecessary to consider this further.
Aggravating and mitigating factors
Both the Crown and Mr Spencer addressed me on the presence or absence of the aggravating factors listed in s 21A(2) of the Sentencing Act and the mitigating factors listed in s 21A(3). The only potentially aggravating factor referred to by the Crown was that specified in s 21A(2)(eb), namely that the offence was committed in the home of the victim. Nevertheless, the Crown accepted that s 21A(2)(eb) was not directed to the form of extreme domestic violence addressed in this case, but was more concerned with invasions of the sanctity of the home by third parties.
Mr Spencer referred me to a number of mitigating factors specified in s 21A(3). First he contended that the offence was clearly not part of a planned or organised criminal activity (s 21A(3)(b)). I accept that is so. This was not a premeditated killing.
Second, Mr Spencer submitted that his client was "provoked by the victim" for the purposes of s 21A(3)(c). In particular, he contended that even though the jury had not returned a verdict of manslaughter on the basis of provocation, that did not preclude a finding that some conduct on the part of Mrs Maglovska materially contributed to the commission of the offence.
I accept that s 21A(3)(c) can be satisfied even in a case where jury has been satisfied beyond reasonable doubt that the Crown has negatived a defence of provocation under s 23 of the Crimes Act. For example, the basis for the jury's rejection of the defence of provocation may be that it found that the offender experienced a loss of self control due to some insulting behaviour of the deceased, but nevertheless was satisfied beyond reasonable doubt that an ordinary person in the position of the offender could not have formed the intention to kill or inflict grievous bodily harm; i.e. the jury may have rejected the so called second limb of the defence of provocation referred to in s 23(2)(b) of the Crimes Act.
However, the conduct of the victim which prompted the offence must, at the very least, be something in the nature of insulting or infuriating behaviour so that it could truly be described as provocative. In this case the act of the deceased in spitting on the offender could answer that description. However it follows from my earlier findings that the precipitating cause of the attack preceded that act and was concerned with her confirmation that their marriage was over. The free choice by the deceased to exercise her undoubted right to leave her marriage could never by itself meet the definition of provocative behaviour on any relevant standard. It is not a mitigating circumstance for a husband who either kills or assaults their spouse that their actions were a response to being advised by their spouse of a decision to end their relationship. I am not satisfied on the balance of probabilities that the mitigating factor in s 21A(3)(c)(i) is established.
Mr Spencer submitted that the mitigating factor identified in s 21A(3)(e) was made out, namely that the offender does not have any record of previous convictions. This is clearly correct. He also refers to s 21A(3)(f), namely that the offender was a person of good character. I also accept that factor is established.
Mr Spencer also referred to the related mitigating factors in s 21A(3)(g) and (h), namely that the offender is unlikely to re-offend and has good prospects of rehabilitation whether by reason of his age or otherwise. In this case, I am satisfied that there is almost no chance of the offender re-offending. Until the breakdown of his marriage, he was a person who had lived an exemplary life. As I have stated, there was no suggestion of any violent behaviour within the marriage prior to its breakdown. The terrible events that led to his being before the Court arose out of the collapse, as he saw it, of his family to which he had devoted himself throughout his life. He is now aged sixty and will receive a substantial custodial sentence. He has destroyed his family and will not have an opportunity to establish or take part in another.
Mr Spencer also referred to the conduct of the offender after the offence, in that he immediately telephoned the police to inform them of what he had done and he participated in the ERISP. Mr Spencer also pointed to the manner in which the trial was conducted on his behalf, namely by narrowing the issues to only provocation and the full acceptance by him that the other elements of the offence of murder were established.
Subsection 21A(3)(l) specifies that a mitigating factor is "the degree of pre-trial disclosure by the defence (as provided by s 22A)". Section 22A provides:
"Power to reduce penalties for facilitating the administration of justice
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
I have already referred to the admission made by the offender at the scene and in his ERISP. Prior to the trial, I listed this matter for two directions hearings. On the second directions hearing, Mr Spencer advised the Court that the sole issue to be raised in the trial would be provocation. As I stated, when he was arraigned the offender entered a plea of not guilty to murder but guilty to manslaughter. Thus, from an early point of the trial the offender indicated that the other elements of the offence of murder would not be put in issue. The only issue in the trial was whether the Crown could negative provocation. By the usual standards of the lengths of the murder trials in this Court, the trial was relatively brief. In my view, the offender is entitled to some leniency by reason of the approach that was taken by him both prior to his trial and during it.
Mr Spencer submits that his client has shown remorse. He referred me to s 21A(3)(i) which provides:
"(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ..."
I have found this aspect of the sentencing process difficult. My viewing of the offender's ERISP recorded on the evening of the killing does not reveal him showing any remorse. It may be his natural disposition, but he appeared to be calm and collected in his description of what had happened. During the trial his behaviour was exemplary although it was clear that he was under much greater emotional stress than he appeared to be on the night that he killed his wife. However, it is not clear whether this involved any appreciation or regret for his actions, or whether it was directed to sorrow at his own circumstances and the shame he is suffering. He did not address this issue in his evidence before the jury and he did not give any further evidence on sentencing.
The question of remorse is addressed in Ms Robilliard's report, and I have set out the relevant extracts above. With some hesitation, I am prepared to accept that he is now regretful and remorseful for killing his wife, although he also sees himself as the victim of her desire to leave the marriage.
It was not submitted that any reduction in sentence on account of the offender's age was warranted. In any event, the authorities binding on me make it clear that I cannot reduce the otherwise appropriate term of imprisonment to be served simply on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J, with whom Hidden and Hislop JJ agreed; Barton v R [2009] NSWCCA 164).
In the end, I am required to sentence a man who violently killed his wife because he could not cope with her decision to leave him. Her death was violent, but unplanned. She was slain in her own home after spending the morning with her daughter and with her son nearby, both innocent in every sense of the word. Until the breakdown of his marriage the offender had lived an exemplary life and still had much to look forward to, even if his marriage had not survived. In this case considerations of general deterrence and the need for the sentence to reflect notions of retribution and denunciation are highly significant. Married women have the right to choose their own destiny. Significant punishments will be imposed upon those who inflict violence on them for exercising that right. That said the offender does not represent a danger to society and his imprisonment is not necessary for its protection.
The offender has visited misery upon himself. I expect that as he contemplates what he had and what he has lost he will consider prison to be only a small part of the punishment he is enduring.
As I noted in R v Shee [2012] NSWSC 1422 at [46], following the decision in Muldrock, there is some doubt about whether sentencing courts are required or permitted to make an assessment of whether an offence in respect of which there is a standard non-parole period is in the low, middle or high range of objective seriousness (see R v Koloamatangi [2011] NSWCCA 288 at [19] per Basten JA, Adams and Johnson JJ agreeing). If I am required to make that assessment then it suffices to state that the objective features of this offence that I have outlined satisfy me that it falls below the middle of the range of objective seriousness for the offence of murder (cf s 54A(2) of the Sentencing Act).
It was common ground that any term of imprisonment should commence from 8 October 2011.
The sentence
Dragi Maglovski, for the offence involving the murder of Rosa Maglosvka you are convicted. You are sentenced to a term of imprisonment.
Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, I set a non-parole period of sixteen years imprisonment commencing on 8 October 2011 and ending on 7 October 2027 with an additional term of four years commencing on 8 October 2027 and ending on 7 October 2031.
The total term of imprisonment is one of twenty years. The offender will be eligible for release on parole on 7 October 2027 and the offender's sentence will expire on 7 October 2031.
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Decision last updated: 04 February 2013
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