R v Neacsu
[2012] VSC 388
•4 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0155 of 2011
| THE QUEEN |
| v |
| MARIN NEACSU |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2012 | |
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | R v Neacsu | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 388 | |
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Plea of guilty – Murder, stabbing of estranged wife’s lover, multiple stab wounds, sustained attack, immediate confession, early plea.
Age 56 years, Minor priors, remorse, very limited “Verdins”, disputed fact finding on plea.
Sentence: 17 years 6 months - Minimum of 14 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose S.C. | Office of Public Prosecution |
| For the Accused | Mr A Furstenberg | Lewnberg & Lewenburg Solicitors |
HER HONOUR:
On 24 February 2012 you, Marin Neacsu, pleaded guilty to one count of murder of Ionel Coca, which occurred on 23 February 2011.
You were born on 24 July 1954 and are currently aged 58. You have two prior convictions. The first being at the Broadmeadows Magistrates’ Court on 14 November 1989, of trafficking a drug of dependence (heroin) and possessing a drug of dependence (heroin) for which you were fined $2,500 and $500 respectively. The second offences were at the Dandenong Magistrates’ Court on 11 December 1992 one count of recklessly cause injury for which you were convicted and sentenced to 7 months’ imprisonment, such sentence being wholly suspended for a period of 12 months, together with a fine $500 and a second count of unlawful assault for which you were fined $400. The first offences are matters that relate to procuring the sexual favours of a female, I have unfortunately received no information in respect of the second group of offences.
The background, relating to the murder of Mr Coca, began in August 2010. He came to Australia from Romania. Prior to his arrival here he had met your son in law Manual Carciumaru and he, together with your daughter Alis, met him upon his arrival, initially he stayed at their home and you later became friends with the deceased man and invited him to reside with you and your wife at your premises in Sunshine West. He did so and moved into a bungalow at the rear of the house. His plans were to stay in Australia for about a year, then return to Romania with a view to, ultimately, permanently migrating to Australia.
Whilst he was residing at your premises he and your wife, Dida Neascu, became friends and ultimately fell in love, although whether that occurred before or after the deceased left your premises is not known. The Crown in their opening remarks submitted that, as a consequence of this relationship, you became suspicious and jealous, and prior to Christmas 2010 the relationship between yourself and your wife and the deceased man was strained. Your counsel submitted this was not accurate, and the reality was, not that you were suspicious or jealous, but that you realised that the deceased was infatuated with your wife and you had said to her “Look I think he wants to fuck you”. It was under these circumstances that you told the deceased man he had one week to leave the premises. The deceased man did move out into the Derrimut Hotel.
You and your wife had been married some 35 years and together you had four children, Alis Carciumaru, Dorina Fenech, Liliana Neascu and Viorica Rata. Approximately two months after the deceased moved out of your premises, your wife Dida, also moved out. That was approximately one week before the murder of the deceased man. Your wife had moved into an apartment with the deceased, but that information was not conveyed to you or your daughters, it was submitted, although from reading the statements of your wife and daughters, it would appear that at least one of your daughters was aware of the relationship between the deceased and your wife.
Your wife told you and the family that she was residing with an old woman who came from her church. She was not saying where the location was, or who the old woman was. Your wife returned each day to the family home and performed duties around the house, but she was also, during that time, slowly moving her possessions out. You wished your wife to return to the family home and you spoke to her about that matter constantly. She indicated she was not prepared to return home. At no stage did she tell you that she had left you and the family home to live with the deceased man. You utilised your daughter Viorica, to speak to your wife on the telephone and ask her to return home, but she was not willing to accede to those requests.
On the evening of 23 February 2010, there was an argument between you and your wife. Your wife was attending at the house on that evening because there had been a phone call arranged. One of your daughters, who resided in South Australia, was going to ring and speak to your wife, again, about coming home. You asked her to come back again and an argument developed. With that, you then armed yourself with a blue handled fishing knife and demanded that your wife take you to where she was now living. You pulled her by the hair and her hand was cut by the knife, you threatened to kill her if she didn’t drive you to where she was now residing. It is clear that your wife was in fear of her life. You dispute that you deliberately cut her with the knife, on the right hand, and I make no particular finding one way or the other. It may have been a defensive wound, it may have been your wife trying to take the knife off you, or protecting herself from some movement. That is not really known and you are not being charged, or being punished, for what you did in terms of your wife on that evening. So I am not concerned to make a finding of fact for those purposes.
Your wife tried to avoid driving you to where the deceased was living with her, and initially drove you to the street where your daughter Alis resided in Ardeer. You did not accept that that was where she was residing, and you again threatened her with violence, if she did not take you to where she was actually living. She subsequently drove to the flats in Ridley Street and you forced her to direct you to the flat in which she was living. It was an upstairs flat and the deceased man was sitting on the couch watching television. Either you or your wife knocked on the door. The deceased man unlocked the front security door and it is at that point that your wife warned him that you were armed with a knife. You have then let go of your estranged wife, who you had been holding by the hair until that time. She ran away and hid in the bushes. The Crown submitted that you then attacked the deceased in the doorway of the flat and began stabbing him.
This is an area that was disputed by your counsel. The dispute involved two matters. The first being that you had no knowledge or suspicion that the deceased man was residing in the flat and what you were intending to do was to confront the “old woman from the church” with whom your estranged wife was allegedly residing. That is the first point in dispute. The second is, that you have instructed your counsel that the deceased man attacked you when you arrived at his premises, that he was the initial aggressor. To determine those matters I need to examine the evidence. Neither, in my view, is a matter of aggravation and accordingly they are not matters on which the crown have to satisfy me beyond a reasonable doubt. They are, in my view, put forward by you as matters in mitigation and, accordingly, you need to satisfy me, on the balance of probabilities, that that is the situation as it existed on that day.
Whilst not contained in any of the three statements of your estranged wife, during the committal proceedings on 24 October 2011, counsel appearing on your behalf put the following questions and she gave the following answers:
You are still arguing with Cornel aren’t you at this stage?---Yes, Yes.
What you are arguing with him about is that he wants to know about who you are living with, is that right?---Correct.
Are you still telling him that you lived with a Romanian woman?---Correct.
He doesn’t believe you, you think, is that right?---Yes.
You are saying that “I’m living with a Romanian woman” over and over and he’s saying words to the effect of “I don’t believe that”, is that right. That’s how the arguments going?---Yes.
He challenges you doesn’t he to show him this Romanian woman?---Correct.
And to show him where you live so he can meet this Romanian woman, is that correct?---Correct, correct.[1]
[1]Page 18.
There is nothing in the record of interview in relation to any aspect of this, which contains ‘no comment’ responses, which is of course your right, although you respond to numerous other questions. In relation to this issue, and the other issue I have to determine, you make only no comment answers. Those questions and answers, to which I have referred in the committal proceedings and which were relied upon by your counsel, demonstrate, that at no stage did you appear to accept that your estranged wife was residing with an old Romanian woman. Nor do I accept that, the reason that you had the knife, was only to force your wife to take you to meet this old Romanian woman, so you could discuss with her what she was advising your wife, in respect of your marriage. When asked why you took the knife with you, by the police in the interview, you declined to comment. Mr Furstenberg had submitted, when asked the question by me, presumably on your instructions that you took the knife ‘to intimidate his wife into showing him where she was living’.[2] That does not explain why, after your estranged wife had driven you to the address, you did not leave the knife in the motor vehicle, but took it with you, when you went to confront the old Romanian woman from the church. Further, in relation to this, I do not find the explanation provided plausible and, it is my view, that you were deeply suspicious of your wife being involved with the deceased.
[2]Transcript 24/02/2012 page 22 line 9
What occurred on this night was a decision relating to confirming your suspicions and confronting the deceased, if your suspicions proved correct. Whilst that does not mean, I am of the view, that you went to the premises with an intention of either killing or causing really serious injury to the deceased man, it does mean that I reject that, when you went there you were expecting to find an old Romanian woman from the church and that, you were in fact surprised or taken by surprise to see the deceased man at the premises. Apart from the submissions put by your counsel, there was in my view, no evidence put forward to support that submission.
In relation to the second submission, that the deceased attacked you when you arrived at the premises and that he was the initial aggressor, your counsel relied upon what you stated to the forensic medical officer who examined you at the police station that night, Dr Angela Sungaila. There was no statement of Dr Sungaila attached to the depositions, but contained within the cross-examination of Sergeant David Barry from the Homicide Squad was the following, and I quote:
Q:You would have noted under the history section of her statement, Dr Angela Sungaila’s statement, that she’d been given a history of the circumstances only in regard to what the accused man had volunteered to her about the incident, is that right?
A:Yeah, I think that’s how she described it, it’s been a while since I read her statement, but I remember something along those lines.
Q:That he’d been involved in a fight and she’s quoted him, “he had my head on the ground”, and also a further quote “hands around my throat”, is that right?
A:Yes, I remember reading that in there.
Q:It’s correct, isn’t it that her physical examination of the accused man found an injury to his throat, is that right?
A:Yes, that’s right.
Q:As well as other injuries to his ear and also his shoulder and arms, is that right?
A:Yes, that’s right.
Q:He also apparently complained about back pain which Dr Sungaila understood had been exacerbated rather than caused on the particular night, is that right?
A:Yes, that’s right.[3]
[3]Page 162 of the depositions.
Again, there is nothing in the record of interview that you made to the police, that indicates that you told them the deceased man was in any way the aggressor on that evening, with you declining to comment in relation to any questions of what actually occurred at the flat.
Your counsel further relied on the evidence of a witness who saw you and the deceased man fighting, in terms of wrestling and struggling outside the flat, with one man being on top and then the other on top. That does not, in my view, support that the deceased man was the initial aggressor in respect of this matter. The evidence is clear that when he answered the door, he was unarmed. The only evidence is that you were at the door with a knife, that you had forced your estranged wife to take you there, that as the deceased fled from you down the stairs, you chased him and yelled out ‘he stole my wife, he stole my wife’.
The injuries that you suffered, were apparently, not of a level that required any actual treatment. The description given by the witness and the injuries which were observed on you, as far as I am able to ascertain, are consistent with a man fighting for his life, which is supported by him running away and you chasing him.
What you told Dr. Walton about the matter was contained on page 2[4] of his report and relates both to the injury to your wife and the death of the deceased, and I quote:
[4]Report of Dr. Lester Walton 19 January 2012
Mr. Neacsu armed himself with a kitchen knife with a view to intimidating his spouse to acquire her address. Rather than deliberately wounding her, he stated that she grabbed at the knife he was wielding and that is how she cut her right palm.
Mr. Neacsu stated that promptly he placed the knife in his pocket, mainly in order to administer first-aid to his spouse.
Then later:
When they arrived the security door was closed but the main door was open. Mr. Neacsu stated “ I saw the man, I had a heart attack straight away. I was not in this world”
End of Mr Neacsu's quote.
Continuing with the Doctor's report. He said:
At this stage his wife ran away screaming loudly to the deceased that Mr. Neacsu was armed and that he should be careful.
And later, down the page:
Having arrived at the premises, Mr Neacsu demanded of the occupant that he open the door because “we need to talk”. Mr. Neacsu stated that the victim promptly attacked him and they became involved in exchanging blows.
Mr Neacsu stated “ I was sick, feeling very bad, very unwell. He was younger, stronger. He was strangling me. He said I’ll kill you motherfucker. I was gasping for air. I thought I was going to die”, and this was the context in which he stabbed the victim.
Mr. Neacsu stated that he then has a memory blank until he was downstairs again with an intense desire to run away because he remained afraid of the victim.
End of quote from Dr Walton's report.
The information provided to Dr. Walton is inconsistent with most of the material in the depositions and also the excuse provided to the court, when your counsel was asked why you took the knife with you to the flat, if all you were going to do was confront the little old woman from church.
It is clear, from the evidence of the crime scene examiners and the photos, that were produced, that the deceased ran away from you on the stairs. He must have run into the flat prior to that, as there are blood drops, sprays and contact blood deposits in a large number of places within the flat. All of that is consistent with you entering into the premises, chasing the deceased, which again is consistent with the deceased later running down the stairs saying “call the police, call the police” and you pursuing him with a knife and stabbing him multiple times. I am not satisfied, on the balance of probabilities, that the deceased man was in any way the initial aggressor, as a result of the totality of the evidence.
As I indicated, they are not aggravating factors, they are merely part of the circumstances in which the killing occurred, and I do not, and will not treat them as aggravating factors.
Returning to what occurred when you arrived at the flat, there is no doubt that the deceased had tried to protect himself from your stabbing actions. He was not successful, as is apparent from the large volume of blood located in the flat, on the front door, around the landing outside and particularly in the area outside flat 6 , where you caught up with the deceased man after he had fled.
The deceased man was losing large amounts of blood as he fled from you, as is evident from the photos in Exhibit 2, which is photo book 2, and most particularly at photos 94 through to 140. Photos 196 through to 198 show the massive blood loss that was sustained outside flat 6 and the following photos of the deceased man lying on the ground, are more than graphic. You stabbed him 16 times. It was vicious and clearly quite frenzied.
You left the flat in the car, in which you had arrived there. You drove to the home of your daughter Alis, in McLauglan Street, Ardeer. You had blood on your face, hands, arms, legs, socks, shoes and clothing. The blood, in which you were covered, was clearly that of the deceased. You still had the knife with you. After you spoke to your daughter Alis, you told her that you had killed this man and requested that she drive you to the police station.
You attended at the police station, walking in there with the knife still in your hand and saying that it was you – ‘I did it’.
As indicated you were interviewed by the police on both the 23rd and 24th of February, which was after you had been examined by a forensic medical officer. You admitted that you had stabbed the deceased Mr Coca, but made no comment, in respect of any questions relating to the circumstances of that stabbing. A committal was held in the matter in October of 2011. At the conclusion of the committal, you entered a plea of not guilty to a charge of murder, but indicated, that you would plead guilty to an alternative charge of manslaughter. On 7 December 2011, through your counsel, you indicated that you would enter a plea of guilty to one count of murder and you were arraigned in relation to that, and subsequently a plea was heard in February of this year. I accept that, it was a relatively early indication of a plea of guilty.
I also have to take into account your personal circumstances. As indicated, you are 58 years of age having been born and raised in Bucharest in Romania, the eldest of three children. You have two sisters; one lives in Spain and one in Italy. Your father was described by you as a violent alcoholic who died in around 1990. Your mother is alive and lives in Romania, she is now 75 years of age. You married your wife, also Romanian, in 1976 when you were 22 years of age and, on my calculations, your wife who was born in September of 1961 would have been 15 years of age. Together with your wife you have four daughters who range in age from 27 to 34. I am informed that all of your daughters continue to support you and that they attend regularly upon you in the prison system, which is a positive matter in terms of your prospects for rehabilitation and also will make your time in prison easier. Your children do not have a happy relationship with their mother, which was and had been the situation for quite some time prior to the killing.
You grew up in Romania, when it was under a communist regime, and you came from a religious orthodox background, which was clearly not tolerated well within the extreme communist regime that existed in Romania at that time. You completed your education in Romania and then worked for some time in manual areas such as tyre building, truck driver, waiter – things of that nature. You came to Australia as a political refugee, and you were aged approximately 30 when you did so. It is clear that you came with your family and you worked upon your arrival here, firstly as a tyre builder, also again as a truck driver, you did some cleaning work and finally you worked as a truck jockey for the Salvation Army and it was during this employment that you injured your back – that was in 1990 and the injury was incurred as a result of lifting a heavy item in your role as a truck jockey. You were left with chronic pain and disability and subsequently placed on a disability support pension on which you have remained since that time.
At some later stage you received a payout in respect of your injury and you used that money to travel to Jerusalem. You bought some gifts for the church with which you had been involved. I am not sure, but it does appear that you have returned, once at least, to visit your mother in Romania. You continue to suffer from chronic back pain and you take various forms of analgesia, being Panadol and Panadene Forte. You have Type 2 diabetes, which is managed through diet, and high blood pressure. You are totally alcohol free and have never consumed alcohol.
I have received both oral and written evidence from your parish priest, Father Dumitru Coman, in which he talks of your piety and your support and assistance for others. Further I have received a brief reference from Sister Mary O’Shannassy Director of Catholic Prison Ministry of Victoria, testifying to your attendance at mass within the prison system.
Whilst counsel did not deal with any of the prior convictions recorded, Dr Lester Walton in his report dated 19 January 2012 dealt with one of the matters in the following way when he stated:
"Mr Neacsu was uncertain as to whether or not he may have any formal prior convictions. There was an incident in the 1980s when he was found to be in possession of less than one gram of heroin. He has never used any illicit drugs himself but he had acquired the heroin with a view to encouraging a particular female towards sexual intimacy with him."
It is clear, from the materials put forward, that you and your wife had a far from satisfactory marriage, in the latter part of your lives. You believed, that the sexual relationship between you and your wife had deteriorated, in the context of your multiple physical illnesses, and that, your wife became unfaithful because you were sick and the deceased man was young and healthy. It would appear that, you and your wife had been living relatively separate lives for quite some period of time and that at some point you have obtained a housing commission house in your own right, in that, it is referred to as being “your house” in different statements and the other property, being referred to as your wife’s house and one of your daughters was actually residing in, what was referred to as “your” house, at the time of this offending. All of that is supportive of the fact that you and your wife were clearly not involved in a happy and contented marital relationship.
I have received a report from Dr Lester Walton dated 19 January, as I said, in which he opined that you are now caught up in what is becoming an increasingly chronic depressive disorder, which in his view was likely triggered by learning of your wife’s infidelity, potentially aggravated by the violent incident and then further aggravated by your current legal situation. He also describes you as being caught up in self-castigation and self-pity, but that you are able to express some remorse.
Your counsel submitted that Verdins had application in this case, beyond the limb that you would find a prison sentence more onerous than the average prisoner, and relied upon the report of Dr Walton. I granted an opportunity to provide further written submissions on this point which your counsel undertook, and I received submissions arguing that there should be a reduction in your moral culpability as a result of you suffering from a diagnosable depressive disorder at the time of the offending. I have read the submissions and the crown response, and I do not accept that the first limb of Verdins, relating to reduction of moral culpability, has in any way been enlivened as a result of your mental health. At page 6 of his report, in the final two paragraphs, Dr Walton says:
"While it is the case that Mr Neacsu likely was suffering from a diagnosable depressive disorder prior to the killing, essentially what he describes is a crime of passion. That he has been cuckolded was finally definitively confirmed to him and he was further inflamed by what he perceived to be the aggressivity exhibited by the deceased. Depressive illnesses certainly can erode a person’s capacity for exercising proper social judgment and such a disorder may also disinhibit aggressive urges, more commonly towards oneself than others.
I could not exclude the proposition that these factors may have some relevance but I do not see them as a central explanation of this man’s misconduct. Perhaps it might be seen that Verdins considerations might be implicated to at least some extent. Mr Neacsu is certainly enduring imprisonment as onerous, arguably more so than a person not afflicted by his depressive condition."
I accept what Dr Walton has to say, in terms of the fact that you are a person suffering from a depressive disorder, which remains untreated at this point, as you do not desire any treatment for it, and the sentence will be moderated in terms of the fact that prison will be slightly more onerous for you. I will not moderate the sentence otherwise by the principles outlined in Verdins. The evidence is clearly insufficient to establish that any of the other limbs of Verdins are relevant. The onus is upon you to enliven the Verdin’s principles, on the balance of probabilities, as a mitigating factor[5] and the evidence contained in Dr. Walton’s report does not establish that necessary relationship between your depressive illness and the offending. If anything, it makes it clear they are not necessarily causally related.
[5]Charles v The Queen [2011] VSCA 399 at 42
I take into account your plea of guilty and will reduce the sentence that I would otherwise have imposed. I accept that your plea of guilty is demonstrative of your remorse and I will take that into account as well, as the practical consequences of the plea which has saved the community and the court time, money and the great trauma and anxiety of witnesses having to give evidence.
I also have to take into account the victim impact statements that have been tendered by the crown. They are from his father Ion, his mother Dumitra and his brother Dorel. They were obviously a close family, and they have lost a son and a brother who they loved greatly. His parents are aged and his father is in poor health, and to not only lose a child, but to lose a child half a world away from where you are, and to have to make all the arrangements to bring your child’s body home must be inconceivably difficult and saddening. Whilst we are a long way away from them, I do want them to understand that whatever sentence I impose upon you today is not a reflection of the worth of their son’s life. His life is like all people’s lives – invaluable. We are all diminished by the murder of another human being and whatever sentence I impose today is only a reflection of what is required by the law and the facts of the case. There is no doubt that he was a much loved son and brother, and one that his parents, brother and his daughter will remember with love and affection. Hopefully his family will remember Lonel with love, laughter and joy for he deserves that, he does not deserve to be remembered only for the manner in which he died. His memory hopefully with time will become a memory of pleasure that he was here, albeit for a short time.
I have also received victim impact statements from two neighbours, and having viewed the photos, I can comprehend why they are distraught and no longer wish to reside in the apartment block, as this charnel house that you created was immediately outside their door. I take all of those matters into account in determining the appropriate sentence.
Murder is a serious crime, it carries the maximum penalty of life imprisonment. The courts have consistently stated in relation to the crime of murder that killings of a domestic nature are no less serious than killings involving unrelated or stranger killings. It was submitted in relation to this matter that this was a crime of passion, which to some extent, it may well be, but anger and rage does not reduce a person’s moral culpability to any great degree. It was further submitted that I should take into account the matter of Omer Bayram v The Queen[6], a decision of the Court of Appeal comprising Warren CJ, Ashley and Harper AJ’s. That was a case in which the accused murdered his wife. He was initially sentenced to 19 years imprisonment with a non-parole period of 16 years after a plea of guilty. The appeal was allowed and the appellant was resentenced to 16 years and six months imprisonment with a non-parole period of 13 years and six months. The circumstances as found by the Court of Appeal are noted at page 2, and I quote:
6"According to the appellant, the argument centred around the deceased’s desire to sell the family home as part of the divorce settlement and his insistence that this not occur. During the argument, the appellant picked up a knife from the kitchen bench and stabbed his wife five times. One blow struck her in the anterior chest penetrating her heart, three blows struck her in the left lateral chest and one blow struck her in the left lateral thigh. The forensic pathologist who performed the autopsy on the deceased also observed multiple incised injuries to the deceased’s right hand consistent with attempts at self-defence. The deceased died from acute blood loss.
7The appellant described the killing in the record of interview. He said he and the deceased had an argument of which he could not recall all the details. He said that the argument ‘just got out of hand, and I got the knife there – I don’t know how, it was on the bench – the kitchen, by the kitchen sink, I grabbed it, and – that’s it.’" Continuing with the judgment:
8"The appellant said the deceased came at him and he ‘I don’t know, just pushed just, I just stabbed at her.’" Continuing again with the judgment:
9"The appellant described the argument as ‘just the usual thing … she wanted a divorce.’ He said the deceased made fun of him saying ‘I want to sell everything, I’m going to take everything.’ He said he had worked hard for 26 years including 22 years on night shifts when he looked after the children in the day time whilst his wife was at work. He said that ‘everything’ meant the house, a taxi licence and a lot of money in the bank. He said he stood to lose half a million dollars. He said she wanted her life with his money. The appellant said the deceased’s statements about taking ‘everything’ drove him crazy and he could not remember anything else. He said he was ‘out of my mind’. He said that earlier in time at the Federal Magistrates’ Court he told the deceased she could have what she wanted but to leave the house. He said that if the house was sold their adult children would not have a home."
[6]R v Bayram [2012] VSCA 6.
On examination of the reasons for granting the appeal there appears to be only one matter of substance, apart from manifest excess, to which the court refers, being ground 2. Ground 2 alleged that the learned sentencing judge erred in law by mischaracterising the offence as "a relatively serious form of murder". The court stated:
27"Turning first to ground 2. The learned judge based the characterisation of the offence as ‘a relatively serious form of murder’ by mischaracterising the appellant’s motivation for murdering his wife. To state the point directly, there is considerable difference between a man killing his wife for money and a man who kills his wife because of a strong fear of losing the home for his children.
28Counsel for the appellant ought have properly explained to the judge the motivation of the appellant. It was inadequate not to take the judge through the relevant parts of the record of interview or respond to Her Honour’s indication requiring direct evidence of intention. Counsel should never gloss over materials on the assumption that the judge will have all the materials and see the point, or indeed any others that might be relevant. It behoves counsel to put to a sentencing judge the instructions of the client together with the relevant evidence.
29Regrettably, Her Honour has been led to perpetrate an error readily avoidable with proper assistance from counsel. I would add that on the appeal counsel for the Crown sought to rely upon the principle, stated in Romero v R[7], that this Court will not ‘lightly entertain arguments that could have been, but were not advanced on the plea.’[8] Here the motivation of the appellant for murdering his wife was disclosed by him from the outset. He was either not listened to or was ignored in the preparation and presentation of his plea. In my view it would render a serious injustice if the appellant was precluded from correcting the error in this case. The circumstances take it outside the ordinary care contemplated in Romero."
[7][2011] VSCA 45.
[8]At [11] (Redlich JA, Buchanan and Mandie JJA concurring).
The circumstances of the offending are quite different to those involved in Bayram. There the husband and wife were arguing when Bayram grabbed and used a knife that was on the bench, and readily available, thus making the crime spontaneous and immediately responsive to the argument, and whilst having, according to the Court of Appeal, a purer motivation for his actions, being the protection of property for his children rather than just one of ensuring his wife did not receive an appropriate share of the family assets through a divorce.
In this case you have had an argument with your wife, obtained a knife and she has been injured slightly as a result. Unfortunately your behaviour does not cease at that point. If it had, it may be more comparable to that of Bayram. But in your case after your wife had been injured you then used the knife to force her to drive to where she was residing. When she took you to a spurious address, you did not accept it, you again forced her to drive further to the premises where she was actually residing. You forced her out of the car up the stairs and to the outside of the flat. She tried to warn the deceased man that you were in possession of a knife but was obviously not able to do so in sufficient time. You attacked the deceased man and pursued him. That is obvious as the bleeding alone demonstrates that you attacked him in the flat, on the landing outside the flat, chased him down the stairs whilst he was bleeding profusely and attacked him savagely downstairs outside the landing of another flat. There were numerous stab wounds to the deceased and you were covered in his blood.
This was not a spontaneous reaction to your wife and you having an argument. Whilst I am not going to sentence you on the basis that this was pre-planned or premeditated, neither was it a spontaneous eruption of anger as a result of a heated argument, or even walking in upon your wife in the arms of another man. As indicated earlier I do not accept that you went to the premises intending to speak to ‘an old Romanian lady from the church’. Your behaviour is inconsistent with that. It is apparent that you intended to see whether your wife was living with the deceased man, and if so, to confront him. I do not act upon the basis that you intended to kill him or even to cause him serious injury, you may well have had the knife on the basis that you intended to frighten him, intimidate him, or even cause him some minor injury if he turned out to be the person in the flat. However, I am satisfied that when you did see him, you were clearly enraged and that when you stabbed him multiple times and chased him out of the flat down the stairs and continued to attack him, that you then had the intent to kill, or at the very least, cause him very serious injury.
Your situation is in my view entirely distinguishable from that of Bayram. Our community, parliament and the courts have repeatedly said that women are not chattels, they are not something that is owned by a man, any man. Your wife was entitled to leave you. You may not have liked that, but she had the right to do so. She did not have to tell you where she was going, or if she was pursing a relationship with another man. You had no right to know this, and you had no right to control what she did, but particularly you had no right to kill the man with whom she had formed a relationship because of your anger as being, as it was described, “cuckolded”. Your relationship had been well and truly over and our society has moved forward and does not excuse any person on the basis of the crime being a “crime of passion”. Provocation has been abolished in this State, and rightly so. But the fact that a crime is a crime of passion can mitigate, to a limited extent, the gravity of the offence. What that means is that it may demonstrate that the offence was not in any way premeditated, pre-planned, but came about as a loss of self control, due to circumstances that were not of your making. Here you have chosen to pursue the issue of whom your wife was living with, and decided to pursue it whilst armed with a knife, you wanted to know, and you clearly believed you had a right to know. Accordingly, whilst this may be a crime of anger or rage, I do not accept that it was a crime of passion in the ordinary mitigatory sense.
I have to balance all of these matters to which I have referred including but not limited to your age, plea of guilty, remorse, limited prior convictions, your prospects of rehabilitation, which as I said in combination with your family support, must be considered good, but together they must be balanced with just punishment, denunciation, general and specific deterrence, both of which are relevant considerations in your case. I must also impose a sentence that is not crushing in light of your age.
Accordingly, as a result, you are convicted of one count of murder and sentenced to be imprisoned for a period of 17 years and 6 months. I direct that you are to serve a minimum of 14 years and six months before becoming eligible for parole.
I declare pursuant to s. 6 AAA that the sentence I would have imposed but for your plea of guilty would have been 20 years with a minimum of 17 years.
I declare that you have spent 559 days in pre-sentence detention, and that such be entered in the records of the court. That does not include today.
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