R v Serrano - [2007] VSC 231

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

THE QUEEN

APOLONIO SERRANO

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2007
DATE OF SENTENCE:	29 June 2007
CASE MAY BE CITED AS:	R v Serrano
MEDIUM NEUTRAL CITATION:	[2007] VSC 231

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CRIME – Sentence – Murder – Accused absconded during trial – Convicted and sentenced in absence – Conduct after murder – Hiding deceased’s body and concocting false account of deceased’s whereabouts – Accused 67 years of age – Relevance of age.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Prisoner	The prisoner was not present and was not represented by counsel or solicitor

HIS HONOUR:

On 7 October 2005, Apolonio (Tony) Serrano (“the prisoner”) was charged with the murder of Milica Trailovic at Endeavour Hills on or about 26 December 2003. A jury was empanelled on his trial on 23 May 2007. On 4 June, the prisoner, who was then on bail, absconded and failed to appear. At that stage, 45 witnesses had been called on behalf of the prosecution. It was anticipated that the prosecution case would conclude within about one day. On 6 June, the prisoner had still not appeared, and his counsel withdrew from the trial. I ruled that the trial should continue in the absence of the accused and his counsel. Accordingly, the trial resumed on 7 June. On 13 June, the jury retired to consider its verdict. On 15 June, the jury, after deliberating for approximately one and a half days, returned a unanimous verdict of guilty of murder.

On receiving that verdict, I set down the hearing of submissions in relation to sentence for 28 June. The prisoner’s counsel were invited to reappear and make submissions on sentence. The prisoner has not yet been recaptured and his counsel declined to attend and make submissions on sentence.

Milica Trailovic was born in Yugoslavia in 1942. At the time of her death she was 61 years of age. She was then living at her home at 25 Skye Crescent, Endeavour Hills. She was a widow. Her second husband, John, had died in 1996. Ms Trailovic was last seen on 26 December 2003, and she has not been seen or heard of since.

Ms Trailovic met the prisoner approximately three years before her disappearance and death. The prisoner was born in Spain in 1940, and migrated to Australia in 1972. He lived in the unit which he owned in Hallam. He had been previously married and divorced.

After the prisoner met Milica Trailovic, the couple commenced a relationship together. He generally stayed overnight at her home in Endeavour Hills two or three nights per week. Approximately two years before her death, Ms Trailovic returned to her former homeland of Serbia for a visit without the prisoner. When she returned, the relationship between herself and the prisoner continued.

There was evidence that the prisoner and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Serrano

Details

AGLC: R v Serrano [2007] VSC 231
Case: [2007] VSC 231
Decision Date: 29 June 2007

CaseChat Overview and Summary

The case of R v Serrano involved the conviction and sentencing of the accused, Serrano, for the crime of murder. Serrano absconded during the course of his trial, leading to his conviction and sentencing in his absence. The key issues that the court had to determine were the appropriate sentence for the murder, taking into account the accused's conduct post-offence, which included hiding the deceased's body and creating a false account of the deceased's whereabouts. Additionally, the court considered the relevance of the accused's age, 67 years at the time of sentencing, in determining the appropriate punishment.

The legal issues before the court involved the application of sentencing principles in a case where the accused had not only committed murder but also engaged in further criminal conduct post-offence. The court was required to balance the severity of the crime against the accused's conduct after the murder, including his attempt to evade justice by absconding. The court also had to consider the relevance of the accused's age in the context of sentencing, weighing this factor against the need for deterrence and retribution.

In reaching its decision, the court noted the gravity of the crime and the accused's subsequent actions that demonstrated a lack of remorse and an attempt to avoid legal consequences. Despite the accused's age, the court found that these factors did not mitigate the seriousness of the offence. The court emphasised the importance of holding the accused accountable for his actions and ensuring that the sentence reflected both the heinous nature of the crime and the need to protect the community. The court ultimately determined that a custodial sentence was necessary, reflecting the severity of the murder and the accused's post-offence conduct.

The final orders of the court included the imposition of a custodial sentence on the accused, Serrano, for the crime of murder. The exact length of the sentence was determined based on the court's consideration of the aggravating and mitigating factors, with a particular emphasis on the accused's post-offence conduct and the need for deterrence and retribution. The court's decision underscored the importance of ensuring justice is served, even in cases where the accused attempts to evade accountability.

Orders