R v Pavlis
[2018] VSC 440
•9 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0338
| THE QUEEN |
| v |
| PETER PAVLIS |
Accused
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JUDGE: | Taylor J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2018 | |
DATE OF SENTENCE: | 9 August 2018 | |
CASE MAY BE CITED AS: | R v Pavlis | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 440 | |
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CRIMINAL LAW – Sentence – Murder – Guilty plea – Accused aged 76 years – No relevant prior history – Otherwise of exemplary character – Early stages of dementing illness – Verdins – Specific deterrence and prospects of rehabilitation of little moment– General deterrence and denunciation given significant weight – Sentence of 17 years’ imprisonment with non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P Morrissey SC | PICA Criminal Lawyers |
HER HONOUR:
Peter Pavlis, you have pleaded guilty to murder.
The maximum penalty for murder is life imprisonment.
Summary of Offending
On the morning of 25 July 2017 you drove to the home of Jennifer Borchardt and, there, killed her in a frenzied stabbing attack using a single edged weapon.
She suffered six incised injuries to the neck region and torso. Those stab wounds caused extensive trauma. Two of the wounds had posterior exit points. Additionally, Ms Borchardt suffered extensive defensive injuries to both her hands and fingers.
The horror of her last moments can barely be imagined. You were a man very much trusted by her. She had started to work in your company as a teenager and grew to become your business partner. She was encouraged to think that she was part of your “family” and, seemingly, viewed you as part of hers. You betrayed her trust, loyalty and affection in the most cruel way by brutally and needlessly ending her life. You arrived at Ms Borchardt’s home early on the morning of 25 July 2017 at about 7.00 am. She was still in her pyjamas. The vicious and determined attack then perpetrated by you ended her life on her kitchen floor sometime during the three and a half hours after your arrival.
The reason for your actions remains opaque. While there was some suggestion that you were jealous of or angry about the relationship she had recently formed with
Mr Robert Hansen, there is no evidence to support that theory and it was apparently proffered merely in an effort to explain the inexplicable. You have said to Associate Professor Stephen Macfarlane, who prepared a psychiatric report about you, that you discovered a box full of $100 notes in Ms Borchardt’s home that morning and it was that discovery that triggered your actions. That statement insinuates – falsely – that Ms Borchardt engaged in some form of financial misconduct. An audit of your company records shows no financial irregularity. And, no such box filled with money was found at the crime scene. I do not accept that it ever was there.
I am unable to discern the true motive for your behaviour. Perhaps you did harbour some suspicions about financial misconduct, however unfounded. Perhaps something entirely unrelated took you to Ms Borchardt’s home that morning. Perhaps, even, it was a routine visit. But, regardless of the trigger for your actions, they were callous and cowardly.
So too was your behaviour in the aftermath of Ms Borchardt’s death. You attempted to clean up the crime scene. You then left, only to fabricate and maintain a false pretence that you were as perplexed about Ms Borchardt’s absence from work and unanswered telephone calls as her friends and co-workers. You also changed your clothes and lied about the cause of a fresh knife wound you had sustained to your thumb.
You left the body of Jennifer Borchardt to be discovered by Mr Hansen when he returned from work shortly before 4.00 pm. His text messages to his partner had, uncharacteristically, gone unanswered that day and the unlocked security door at the front of the house – also an uncharacteristic behaviour of Ms Borchardt – could only have been a note of dread as he entered their shared home to find the lifeless body of the woman he loved.
You, together with your son, arrived at Ms Borchardt’s home at about 5.00 pm that evening. Your wife arrived separately. You all returned to your own home before giving statements to police. You lied when you said that you had not seen Jennifer Borchardt since the previous evening. And, at the very least, you were disingenuous when you told police that Ms Borchardt was unhappy about an issue with a family member.
Police returned to your home address later that evening and you were arrested at about 8.30 pm.
Impact on Victims
Jennifer Borchardt’s family and friends are utterly shattered by her death. I have received Victim Impact Statements from her nieces, brother and sister-in-law, partner and her close friends. The generous, fun-loving and kind woman that Ms Borchardt was shines from those statements. She had not yet reached her fiftieth birthday. The absence of that much loved woman is keenly felt.
A number of the deponents have suffered significant physical and other health problems as a consequence of your offending. All of them struggle to understand why Ms Borchardt died at your hand. An intense sadness pervades their lives and is a counter-weight to the ordinary pleasures and milestones that they will inevitably experience.
Personal History
I now turn to the matters personal to you.
You were born on 2 February 1942. You were 75 years of age when you murdered Jennifer Borchardt. You are now 76 years old. Until 25 July 2017 you had lived a
hard-working, productive and good life.[1]
[1]A prior 1993 appearance at the Prahran Magistrates’ Court for two charges of tamper/interfere with motor vehicle is of no moment.
Your early years were spent in Greece and were touched by the chaos and fear of war, first the Second World War and then the Greek Civil War. Up and until the age of 10 you were largely brought up by your grandmother. During those early years you suffered some abuse by an uncle. At about that age your father, a merchant seaman, took you away from war-torn Athens and you lived on merchant vessels prior to coming to Australia. Upon arrival you lived with your parents and sister in a single room in a house shared with other Greek migrant families. You spoke no English.
Nonetheless, you attended school in both Coburg and Brunswick. You ended your formal education aged 14 in order to seek employment in aid of the financial circumstances of your family.
That disruption to your schooling and the difficulties of language had an impact upon your literacy. While you can read, you write with difficulty. But, you learnt to work and work hard. You had a variety of jobs and discovered your skill at sales. On your plea, this was described as the “front of house factor”. Your business success supports that descriptor. You ran and made money from a milk bar, a laundromat and a chicken shop prior to commencing the Muesli Company in 1985.
The Muesli Company began operations from a small premises in Richmond and later moved to a factory in Thomastown. It was a more complex business than you had previously owned and you employed others, including Jennifer Borchardt, to assist. Ms Borchardt eventually bought into the business. You maintained your front of house role, which your counsel described as you being of relevance in the modern age. You were well liked and respected by your employees. That is demonstrated, most cruelly, by their expression of the betrayal perpetrated by you of them, as well as of Ms Borchardt, in the Victim Impact Statements of two of your former employees.
Alongside your various businesses you also created a family. You met Jane in 1965. You have now been married for over 50 years. You have two children and now grandchildren. I accept that you have been an exemplary husband, father and grandfather. And that you feel a great deal of anguish that your actions have caused a great deal of distress to your family.
I also accept that you have been an extremely generous and community spirited man. That generosity found many targets, both public charities and private recipients. It extended to the family of Ms Borchardt when they lost their house in a fire. In fact, the closeness and, indeed, familial love that you shared with Ms Borchardt over many, many years, makes your conduct on 25 July 2017 all the more unfathomable.
It is no surprise that the common thread throughout the many character references I have received is that your offending was out of character. Those references suggest that you are an otherwise loyal, hard-working, trustworthy and kind man. By your own actions you have destroyed a long-standing and honourable reputation.
It is necessary to say something about your health.
I have received a report from your general practitioner (‘GP’). You have a number of health issues including diabetes, osteoarthritis and a history of heart problems. Your GP states that, at least in 2017, your chronic conditions were stable but poorly controlled.
As I have already said, I have also received a psychiatric report authored by Associate Professor Macfarlane alongside associated MRI test results. You are in the early stages of a dementing illness. Some symptoms of cognitive decline were evident in the twelve months prior to your offending.
Professor Macfarlane has used actuarial data regarding life expectancy and in consideration of your health, has formed the opinion that you can be expected to survive “a significantly shorter” period than the eleven years that the average 76 year old can expect.
Analysis – Health Considerations
At the hearing of your plea your counsel relied upon your mental impairment as being relevant to an assessment of your moral culpability and your suitability as a vehicle for general deterrence in accordance with the first limb of Verdins.[2]
[2]R v Verdins (2007) 16 VR 269.
Professor Macfarlane states that your impairment was insufficient to explain your offending. Rather, your impairment was incidental to it. His report makes reference to your ability to attempt to clean up the scene, construct a story to explain your injured hand and follow legal advice you received after your arrest to support his opinion. Professor Macfarlane goes on to state that your impairment was likely to have left you with little regard for the consequences of your actions, including the consequences for yourself.
Considering the material before me, I accept that the assessment of your moral culpability must, to a degree, be ameliorated by the onset of your dementing illness.
The future progression of that illness can only be a matter of speculation. And I note that Professor Macfarlane does not expect imprisonment, in and of itself, to cause deterioration in your condition. Additionally, there is no evidence to suggest that any of your health issues cannot be appropriately managed within the custodial environment. Nonetheless, I accept that you will find imprisonment more burdensome than a person who does not suffer from your physical and mental health conditions.
You are now an elderly man. But you were also an elderly man when you committed a brutal murder. While your age and associated age related health problems are, as I have said, relevant sentencing considerations, and the sentence I pass may mean that you are at risk of death in custody, those matters cannot justify an unacceptably inappropriate sentence.[3] There can be no doubt that the sanctity of human life is so dear to our legal system that a substantial sentence will be imposed upon an offender who kills another with murderous intent and without legal justification or excuse.
[3]Delich v The Queen [2014] VSCA 66 at [26] (‘Delich’); R v Caruso [2010] VSC 354 at [25] (King J) (‘Caruso’).
Analysis - Remorse
At the hearing of your plea your counsel urged that you had demonstrated some meaningful or realistic remorse notwithstanding your actions in the immediate aftermath of your offending and your initial denial to police concerning your involvement. Some of the character references tendered on your behalf speak of your shame and sorrow at your actions. You told Professor Macfarlane that what you did was wrong and you were sorry for it, even though you also expressed some unfortunate sentiments when asked if confronted with the same situation you would have behaved differently.
Your counsel sought the opportunity for you to speak from the dock. That course was agreed to by the prosecutor. You said you were sorry and had no right to do what you had done.
You did plead guilty at an early opportunity and by doing so you have indicated a willingness to facilitate the course of justice. Your plea also has significant utilitarian benefit and has spared the witnesses and those close to Ms Borchardt the ordeal of a trial.
The prosecutor characterised your remorse as low level. Your counsel said it was somewhat belated, but nonetheless real and relevant.
While there is no doubt that self-pity has played a role in your expressions of shame, sorrow and embarrassment, I do accept that you have demonstrated a measure of meaningful remorse, albeit belated.
Sentencing Considerations
The murder of Jennifer Borchardt was brutal and horrific. The fact that you killed
Ms Borchardt in her kitchen not only ended her life, but also violated the sanctity of her home. She was entitled to feel safe there, particularly with a man who was “like family” and was trusted with the keys to her premises.
Your motive remains unexplained. While I accept that there is no evidence that you had pre-planned your actions of the morning of 25 July 2017, I am of the view that the frenzied, forceful stabbing attack of a vulnerable woman in her own home is a serious example of murder. I accept that your moral culpability is, to some degree, ameliorated by the early stages of your dementing illness. Nonetheless the sentence I pass must give significant weight to both general deterrence and denunciation.
Your actions in attempting to clean the murder scene and your other deceptions about your involvement were callous and cowardly and totally at odds with the character of the man spoken about by those who have provided references on your behalf. But as I have said, your plea of guilty at an early stage indicates a willingness to facilitate the course of justice and also has a utilitarian benefit. And, it indicates some level of remorse. As I have noted, I accept that you have demonstrated a belated measure of meaningful remorse.
I take account of your advanced years and your health issues.
Both your counsel and the prosecutor argued that specific deterrence and prospects of rehabilitation are of little moment in the sentencing exercise given your antecedents, age and health. I agree.
I have been referred to a number of authorities to assist me with the range of sentences for a murder offence such as this.[4] I have had regard to current sentencing practices.
[4]Delich [2014] VSCA 66; Stenshold v The Queen [2014] VSCA 171; McPhee v The Queen [2014] VSCA 156; DPP v O’Neill (2015) 47 VR 395; Bayram v The Queen [2012] VSCA 6; Dutton v The Queen [2011] VSCA 287; R v Mangione [2006] VSCA 34; DPP v Zhuang (2015) 250 A Crim R 282; R v Gojnovic (No 2) [2007] VSCA 153; Caruso [2010] VSC 354; R v Acikoglu [2001] VSC 163; R v Beck [2005] VSCA 11; R v Vella [2001] VSCA 174.
Your counsel also urged a measure of mercy, particularly with respect to the non-parole period that I am to impose. To the extent that I am able to do so in the balancing exercise, I have done so. In that regard I reiterate that the very real possibility that you will die in gaol does not, in all the circumstances, indicate a lack of mercy.
Sentence
Mr Pavlis, would you please stand.
Balancing, as best as I am able, the competing considerations laid down in the
Sentencing Act 1991(‘the Act’) and having regard to the matters I have just discussed, for the offence of murder I sentence you to imprisonment for 17 years. You must serve a minimum of 12 years before being eligible for parole
I declare that you have already served 381 days of that sentence by way of
pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a sentence of 20 years’ imprisonment with a non-parole period of 15 years.
I also make the disposal order in the terms sought by the Crown.
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