R v Obradovic
[2001] VSCA 98
•14 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 334 of 2000
| THE QUEEN |
| v. |
| LUKA OBRADOVIC |
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JUDGES: | WINNEKE, A.C.J., PHILLIPS and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 June 2001 | |
DATE OF JUDGMENT: | 14 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 98 | |
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Criminal law – Sentencing – Recklessly causing serious injury and intentionally causing injury – Result of matrimonial dispute – Firing of flare gun at close range – Offender in mid-60’s and in poor health – Imprisonment for three years upheld but minimum term reduced to eight months already served.
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| APPEARANCES: | Counsel | Solicitors | |
| For the Crown | Ms S Pullen | Mr. S. Carisbrooke Acting Solicitor for Public Prosecutions | |
| For the Appellant | Mr. D. O’Doherty | Warren Graham & Murphy | |
WINNEKE, A.C.J.:
I will invite Phillips, J.A. to deliver the first judgment in this appeal.
PHILLIPS, J.A.:
On 27 September 2000 the appellant, who was born on 17 November 1934, pleaded guilty in the County Court at Bairnsdale to one count of recklessly causing serious injury for which the maximum penalty is 15 years' imprisonment, and to one count of intentionally causing injury, maximum penalty 10 years' imprisonment. Seven previous offences were alleged against him which were dealt with in the course of four court appearances, three in the Magistrates' Court and one in the County Court, in and between November 1993 and May 1997. At least some of these were admitted, and I will return to this later.
On 27 September counsel on behalf of the appellant made a plea in mitigation, during which two medical reports were tendered, a victim impact statement, the reasons for judgment in the Family Court on 3 November 1999 and a certain letter from the appellant's solicitors dated 19 November 1999, to which I shall also return. At the conclusion of the plea a pre-sentence report was sought by the judge and that, which was dated 4 October 2000, reported that the appellant was not suitable for a community-based order because of his health and the difficulty he would have in travelling regularly to the Community Corrections Office at Bairnsdale.
On 18 October 2000 the appellant was sentenced. For the offence of recklessly causing serious injury he was sentenced to be imprisoned for a period of three years, and for the offence of intentionally causing injury he was sentenced to be imprisoned for a period of 18 months; both sentences to be served concurrently. A non-parole period of 12 months was fixed and a forfeiture order was made for a flare gun and ammunition. Apparently by oversight the judge omitted to make a declaration of pre-sentence detention of three days.
The appellant now appeals by leave given on 16 February 2001 by a judge of
appeal. The appeal is on two grounds, according to the appellant’s notice: first, that the sentences imposed were manifestly excessive and, secondly, that the judge erred in certain specific respects, namely, by (a) failing to give sufficient weight to circumstances which it was claimed rendered specific deterrence "inapplicable"; (b) failing to give sufficient weight to the appellant's ill health; (c) concluding that the appellant had a predisposition to violence; (d) failing to give sufficient weight to "circumstances of provocation"; (e) failing to consider circumstances which "may make it desirable to suspend any sentence"; and (f) failing to give adequate weight to the plea of guilty. Most of these details were merely particulars of the first ground, manifest excess, but paragraphs (c) and (e) allege specific error.
In addition, leave to amend the grounds was sought this morning by adding a third ground, namely, that the judge erred in excluding from consideration the element of remorse, and I would grant that leave.
The two offences now in question came about as a result of a dispute in the Family Court. According to his counsel on the plea, the appellant, who was born Serbian in an area of Yugoslavia which is now Croatia, married in 1950 and had five daughters. In 1969 he came with this family to Australia and settled in Wollongong, working in the local steel mill. In 1976 or thereabouts he moved to Melbourne. Unfortunately, his wife suffered some serious psychiatric illnesses and in the result the marriage broke up.
In 1993 he met his second wife and they married in 1995. They separated in January 1999 and that led them both to the Family Court. One of the problems between them was a yacht which had been purchased in 1993. Apparently the ownership of the yacht, and in particular who contributed to its purchase, was in dispute, the appellant claiming that he had invested all his money in the yacht with a view to the two of them travelling around the world, his wife being an experienced sailor. Upon their separating in January 1999, mutual intervention orders were obtained, one against the other, and the appellant was excluded from the unit in Sunshine where they had both been living. So he went to live on the yacht.
In June 1999 an application was made by the appellant's wife for an order excluding the appellant also from the yacht. The first such application was refused in the Magistrates' Court but it led to another application to like effect being made some months later. Apparently it was by then claimed that the appellant's wife had sold the yacht to a third party, and this aspect of the dispute came before the Family Court in November 1999. It led to the judgment, a copy of the reasons for which was tendered on the plea. The dispute was certainly not settled at that point but the judge announced that he would make orders "which will have the effect of enabling the appellant to attend upon the boat to remove from the boat that which is clearly hers, or that which she claims is hers and which the intervener says is not his". The intervener referred to was one Vladimir Nikolaeff, to whom the appellant's wife claimed to have sold the boat.
It was with a view to enabling the appellant's wife to attend upon the boat for the purpose described "in a peaceful way" that the judge made an order requiring the appellant to absent himself from the boat for at least 24 hours. Accordingly, an order was made that the wife should nominate a day upon which she intended to visit the yacht and that "the husband is to absent himself from the yacht for a period of 24 hours commencing at one minute past midnight on the day nominated and he is not to return to the yacht until one minute past midnight on the next day".
On 19 November 2000 the appellant duly received a letter from his solicitors notifying him that his wife would attend at the yacht on 4 December and that he must absent himself from the yacht on that day. The letter from the solicitors was another of the documents tendered on the plea. It not only said that the appellant's wife was intending to visit the yacht on 4 December, it went further, continuing –
"... and therefore pursuant to Paragraphs 3, 4 and 5 of the Orders made on 22nd October [sic] 1999 in the Family Court, you must absent yourself from the yacht for a period of 24 hours commencing at one minute past midnight on Saturday 4th December 1999 and you are not to return to the yacht until one minute past midnight on Sunday 5th December 1999."
Counsel's submission to the judge was that that was "very unclear" and that the appellant had read it as meaning that he should absent himself from the boat on the Sunday, not the Saturday. How this could be when the letter itself stated very plainly that his wife would be visiting the yacht on 4 December I am not certain.
At all events, on the morning of Saturday 4 December, according to his counsel on the plea, the appellant went into town to get some lunch. Shortly after midday he set out to return to the yacht, planning, it was said, to gather his things together and leave that evening because his wife was expected the next day. When he arrived back at the yacht in his car he saw his wife, Mr Nikolaeff and another man, one Piwinski, already there at the yacht with a trailer attached to the back of their car. For a while he sat and watched what was happening. According to his counsel, what he saw was the yacht being stripped, everything being taken off it. He sat in the car, it was claimed, until he saw a particular jerrycan being taken from the boat, a jerrycan which he knew to be his and containing petrol which he knew to be his because he had bought it in Melbourne three weeks earlier. That such a small item could have led to all that followed is astonishing.
The appellant got out of the car and grabbed the jerrycan from the trailer and went to put it in his car. At that point, it seems, he was challenged by Piwinski, there was a struggle or a tug of war, and an exchange of threats and abuse, with the result that the appellant produced a flare gun from his belt, shot one flare into the air and then, pointing the flare gun into the face of Mr Nikolaeff, fired again. Mr Nikolaeff sustained a penetrating injury to the right cheek area of his face, and a medical report from the Alfred Hospital dated 9 August 2001 was another of the documents tendered on the plea. The infliction of this injury was the subject of count 1, that of recklessly causing serious injury.
Meanwhile, the appellant's wife had been taking photographs while the yacht was being unloaded. After the shots were fired she ran to the boat. The appellant, it appears, pursued her and reloaded the gun and then, as she was trying to get into the cabin of the yacht, fired the flare gun at her from the jetty from a distance of about two metres. She was struck in the arm and suffered swelling and burns. Fortunately, according to appellant's counsel on the plea, she appears to have made a full recovery since. The infliction of injury on his wife was the subject of count 2, that of intentionally causing injury.
Thereafter the whole affair was fairly speedily resolved. Other people in the area intervened and took the flare gun away from the appellant, and a little later he was apprehended by the police and interviewed by them. He readily admitted to firing the flare gun but he claimed that at the time he thought that Mr Nikolaeff was about to hit him and that he had fired the first shot into the air in order to scare Nikolaeff, only to see him coming back at him. According to prosecuting counsel on the plea, "He said that the three people" - meaning his wife, Nikolaeff and Piwinski - "were coming at him like beasts and that Nikolaeff came at him with a spanner". It is true that in a statement to police Piwinski conceded that he approached the appellant holding a spanner, but he said that he put it into his pocket as he neared him and he denied any threat to the appellant.
On the plea, appellant's counsel relied heavily on the peculiar, or perhaps more accurately the special, circumstances giving rise to the two counts to which the appellant pleaded guilty; namely, the acrimonious dispute that was continuing between husband and wife over their marriage break-up, the so-called confusion over the solicitor's letter, the appellant's perception that his property was being unjustly removed from the yacht, and what was called an element of provocation, not merely in the events that occurred near the yacht on 4 December, but in the ongoing dispute over habitation and the like. All this, however, was duly brought to account by the judge, for in his sentencing remarks his Honour said:
"Mr Obradovic, I assure you that I have taken into account everything said by [your counsel] on your behalf. Again, in particular, your plea of guilty. [Your counsel] also indicates that, taking into account the volatility of your marriage breakdown, together with the confusion of that letter that you received from your solicitor as to your attendance at the yacht on this day, further it was said that you were provoked, in that it was your property, or at least, some of it, that was being unlawfully interfered with, in your view."
Thus the plea of guilty and the claim to provocation were both regarded, and indeed, in having regard also to what was described as "the confusion of that letter" from the solicitors, the sentencing judge was, if I may say so, acting generously. Be that as it may, the judge said expressly that he accepted that the appellant was at the yacht on 4 December "because of an error in understanding that letter".
In the course of his sentencing remarks, the judge indicated that he was not well disposed towards the submission made by the appellant's counsel that "these offences are at the lower end of the scale", and with respect I agree. On the other hand, it was obviously necessary to take into account the appellant's age, his history and his personal circumstances including, importantly, his health, and I turn now to those.
Born in Yugoslavia with five siblings, the appellant's mother and father were together until he was six or seven. His childhood, it was said on the plea, was fairly happy until the onset of the Second World War, when his older brothers went off to fight. In 1941 German soldiers came into the village and, he claimed, first interrogated and then executed his mother in front of him. After the war he was reunited with his brothers and father. In 1950 he went into the Yugoslavian Army and qualified as a mechanic. He married, joined the police force and later on worked as a mechanic and an engineer. In 1969, as already mentioned, he came to Australia, that marriage later breaking up. On the plea emphasis was placed upon all of the trauma the appellant had suffered during his life and the fact that, until he was almost in his sixties, he was a stranger to the criminal justice system. (In passing, I note that the judge put this change as occurring after his second marriage, which occurred in 1995, although the first alleged offence came before the courts in 1993, when he had but met his second wife.)
As for the appellant's health, the appellant is now 65 years old and is poorly. According to the doctor's report, he suffers from non-insulin diabetes mellitis, requiring daily injections of insulin and blood sugar level monitoring; he also suffers glaucoma, hypertension and cervical spondylosis, and he has some lumbar spine degenerative disease. In consequence he is taking six types of medication, including insulin injections and eye drops. He uses a wheelie frame to help stabilise himself when walking. More recently, since the offences but before he was sentenced, he broke his leg in a car accident and, further, it was claimed, he is living in circumstances bordering on the poverty line. All of this was put on the plea and was taken into account by the sentencing judge.
Turning more particularly to the grounds of appeal, the first is manifest excess. For my own part I do not think that that is established. The offences, particularly count 1, were serious. To fire the flare gun into the face of the victim at short range was highly dangerous and, as the prosecutor said on the plea, it could have proved life-threatening. It is true that the circumstances that led to the confrontation were special; the appellant on the day was particularly vulnerable given the invasion of what was, in effect, his home - authorised though it was by the judge's order - and, of course, there are to be considered the plea of guilty, the age of the appellant, his previous good character up until 1993 and his poor state of health. Nonetheless, when all is said and done I do not think it can fairly be said that the sentences imposed were altogether outside the range of sentences reasonably open in the proper exercise of the sentencing discretion. But that is not the end of the matter because, as I see it, the judge made one specific error in sentencing, if not two, and that reopens the sentencing discretion.
First, I refer to the somewhat curious remark his Honour made about remorse. I say immediately that the appellant's counsel did not refer to remorse when making the plea in mitigation, nor did the prosecutor. No finding was made in that regard but in sentencing, after mentioning the marriage break down, "the extremely parlous state of your health" and the plea of guilty as matters which had to be brought to account, the judge then added this:
"The issue of remorse, I don't think is one that applies in this matter, taking into account the family law nature of the event."
As best I can construe it, this amounts to dismissing remorse as an irrelevant consideration. Perhaps his Honour was of the view that because of the hostility between husband and wife there was no remorse, but the plea of guilty, in circumstances where the appellant at one stage claimed to have been acting in self-defence, pointed perhaps in the other direction. Certainly persistence in the continuing matrimonial dispute between husband and wife did not in itself mean the appellant had no remorse for the injuries he inflicted upon at least one of his victims, if not both of them. As Ms Pullen showed by reference to the record of interview, at one stage the appellant appeared to indicate that his intention had been to hurt his wife but not Mr Nikolaeff. As I have said, no finding was made about the existence or otherwise of remorse; the error was simply in rejecting that consideration as wholly irrelevant.
The more important error lay elsewhere, however. It concerned the alleged prior matters and their effect. According to the further presentment the appellant had since November 1993 faced court four times, thrice in the Magistrates' Court and once in the County Court. In November 1993 he was bound over, it was alleged, to be of good behaviour after appearing on a charge of failing to safely store a firearm. On 28 February 1994 he was allegedly sentenced to pay an aggregate fine of $1,000 after conviction for intentionally or recklessly causing injury and failing to safely store a firearm. On 28 May 1996 he was allegedly sentenced to be imprisoned for 12 months but the sentence was wholly suspended after conviction on three offences; obtaining property by deception, using a false document with intent and making a false document with intent. In late May 1997 he was fined $200, it was said, after conviction for being in possession of or carrying a firearm or explosive device or weapon in court.
On the plea the appellant admitted some of these and denied others, but with respect to the sentencing judge it was not made very clear which was which. Perhaps this was because of the need for an interpreter. Be that as it may, the transcript at p.2 records that the appellant "admitted one prior conviction and denied others". At p.3 his Honour said "put that down as a denial" and invited the Crown to lead evidence if so inclined. A little later his Honour said:
"... he doesn't admit the last one and he does not admit the conviction in relation to the injury charges contained within those offences where the fire offences are; he admits them but not the injury matter."
On p.4 his Honour again invited the Crown to submit proofs. At the conclusion of the plea his Honour returned to these previous matters. When granting bail to the appellant to appear on 18 October for sentencing – and I refer to pp.25-26 – his Honour said that the appellant had, "admitted all bar two of those offences contained within that record" (meaning the record shown in the further presentment) and warned the appellant that the Crown might call evidence to prove what so far had not been admitted.
Thus far I should have concluded that of the seven offences alleged as previous matters all were admitted save the last, taking a firearm or some such into court, and the offence of "intentionally or recklessly causing injury". That left the three charges of dishonesty, which were scarcely relevant for present purposes, and two charges of failing to safely store a firearm. That is all.
There is no sign in the material before us that the Crown did call further evidence to prove “what so far had not been admitted”, yet in opening his sentencing remarks on 18 October the judge said:
"You admitted today to some previous court appearances. Three of those previous court appearances indicate a predisposition towards possession of firearms and violence."
Unfortunately, what is meant by the first sentence of this is not known. Neither Mr O'Doherty who appeared before us for the appellant, nor Ms Pullen who appeared for the Crown, was present on the plea and sentence and neither was successful in obtaining instructions as to what exactly had occurred on 18 October to lead the judge to make reference, as he did, to the appellant's admitting “today to some previous court appearances". In the end it simply remains uncertain how far matters were advanced, if at all, on 18 October.
This is scarcely satisfactory, if I may say so, for an appellate court faced with the claim in the appellant’s notice that the judge erred in the significance he placed on previous offences. Fortunately, the doubt that exists need not be resolved
because, even if it be assumed that all allegations made in the further presentment were admitted, his Honour did, I think, fall into specific error in the significance which he attached to them. Put shortly, I do not consider that his Honour was justified in concluding that such previous matters as were alleged evidenced "a predisposition towards possession of firearms and violence". Whatever they might have said about firearms, one conviction for causing injury, and especially one which attracted only a fine, was an insufficient basis, I think, for finding a predisposition for violence. Indeed, as Mr O'Doherty pointed out, given the nature and extent of the acrimonious dispute which had apparently been continuing between husband and wife for some time, the absence of any particular incident until this one in December 1999 might have been thought to point against it. However that may be, his Honour fell into specific error, in my respectful opinion, in the significance he attached to the previous convictions, if, as I say, one assumes that they were all admitted. If not, the error may only have been the greater.
The sentencing discretion having miscarried below, it is for us to consider the exercise of that discretion. As I have said, I regard the offences as serious and I do not consider that the sentences imposed were outside the range properly available. Nonetheless, given the personal circumstances of the appellant, and in particular his antecedents, his age and his very poor health, I think that while the sentences of imprisonment on counts 1 and 2 should stand, I would reduce to eight months the term to be served before the appellant becomes eligible for parole. He has already served most if not all of that period of eight months in gaol and the time already spent in custody should be sufficient lesson, I think, given his circumstances - and given that, if he is released on parole, the threat of further incarceration will remain over his head should there be any further offending.
I would allow the appeal to that end.
WINNEKE, A.C.J.:
Like Phillips, J.A., I would grant leave to amend the grounds of appeal by
adding the ground in the terms to which his Honour has referred.
I too would allow the appeal for the reasons which Phillips, J.A. has given, and I would agree with the disposition of this appeal in the manner which he suggests.
BATT, J.A.:
I too agree that leave to amend the grounds in the manner already indicated should be granted, and that the appeal should be allowed and the order proposed by Phillips, J.A. made.
WINNEKE, A.C.J.:
The formal order of the Court will be that the appeal is allowed. The sentences below are quashed. In lieu thereof this Court orders that the appellant be sentenced on count 1 to a term of three years' imprisonment and on count 2 to a term of 18 months' imprisonment, the total effective sentence is therefore one of three years.
We order that the appellant serve a minimum term of eight months before becoming eligible for parole.
We declare that the period of 242 days be reckoned as time served pursuant to the sentences which we have imposed, and we direct that the declaration and its details be entered in the records of the Court.
I think that will mean that the prisoner will become immediately eligible for parole.
I have calculated the time at 242 days up until this time.
Do you understand what we have done, Mr Obradovic?
APPELLANT:
I understand.
WINNEKE, A.C.J.:
Thank you very much.
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