R v Stojkovic
[2002] VSC 210
•31 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
ADMIRALTY LIST
No. 1533 of 2000
| THE QUEEN |
| V |
| MADRAJ STOJKOVIC |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24-28 September 2001, 1-5 October 2001, 8-11 October 2001, 22 November 2001, 21 February 2002, 14 March 2002, 31 May 2002 | |
DATE OF SENTENCE: | 31 May 2002 | |
CASE MAY BE CITED AS: | R v Stojkovic | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 210 | |
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-Criminal law – Sentencing – Uxoricide – Failed self defence – Remorse – 16/13.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W Morgan-Payler QC Ms G. Cannon (31 May 2002) | Office of Public Prosecutions |
| For the Accused | Mr S Langslow Mr M. Bland (31 May 2002) | Stary Myall |
HIS HONOUR:
Madraj Stojkovic, on 11 October 2001 you were convicted by a jury of the murder of your wife Vesna Stojkovic at your home in Herbert Street Avondale Heights on Sunday 30 April 2000. It is now my duty to sentence you according to law.
Before recording the circumstances in which you came to commit this crime and other matters relevant to the sentencing process it is appropriate that I should record the reason for the inordinate delay between the date of your conviction and today, the date upon which you are being sentenced.
After you were convicted you were remanded in custody to a date to be fixed for a plea to be made on your behalf. When that date had not been fixed by mid-November 2001 I arranged for this matter to be mentioned on 22 November to review the position. On that date your former counsel appeared amicus curiae to inform the Court that a funding problem had arisen with respect to your defence arising, at least in part, from the fact of your conviction and the subsequent effect of that conviction upon assets which had been previously owned by you and your wife. On that date, at your request, I adjourned the further hearing of this matter to a date to be fixed in February 2002.
The matter was then fixed for 21 February 2002 when Mr Langslow was once again retained on your behalf. Although he was able to call witnesses he was unable to tender the psychiatric report of Dr Walton to which I will refer shortly in as much as the funding problem earlier referred to prevented that report from being obtained. To enable further inquiries in this regard to be made I adjourned the matter again to 14 March 2002 on which date you were represented by your solicitor, acting pro bono, who informed the Court that the psychiatric report would not be able to be supplied. Accordingly I ordered that a pre-sentence report be prepared pursuant to s 96 Sentencing Act 1991 and provided to the Court. I directed that the Secretary of the Department of Justice's attention be drawn to the fact that Dr Walton had already examined you and that provided his fee was paid his report would be available. However, it was not until shortly after 7 May 2002 that Dr Walton's report was received enabling this matter to be now dealt with. It has been listed today for plea and sentence; thus enabling the Crown to put any further submissions thought appropriate having regard to Dr Walton’s report. In the event, Ms G Cannon, who appeared for the Crown today criticised Dr Walton’s conclusions but made no substantive submissions in relation to his report.
You were born in Vrange in the former Republic of Yugoslavia on 13 March 1954. You completed technical school there and trained as a panel beater and subsequently as a carpenter. You married the deceased in 1981 in Yugoslavia when she was 16 years of age. Later that year you migrated to Australia and commenced to live with your wife in Yarraville. In due course you had two children, Lidija, a girl now aged 20 and Marjan, a boy now aged 18.
By about 1989 your marriage had deteriorated somewhat and your wife returned to Yugoslavia to live with the two children. You followed her and eventually returned with her to Australia in 1991, having affected a reconciliation.
Over the succeeding nine years you worked hard and acquired a number of assets, including properties and other material possessions. By the year 2000, however, your relationship with the deceased was once again less than harmonious, a situation probably contributed to by your self-imposed long working hours brought about by your laudable, if misguided, belief that material possessions would bring with them family harmony.
On 3 February 2000 your wife took out an intervention order against you, causing you to leave the family home. However, after some weeks a reconciliation again occurred and you moved back to your family home in Herbert Street Avondale Heights; a home into which you and your wife had put much money and personal effort to make comfortable for your family.
Despite the reconciliation which occurred after the intervention order was revoked, in the weeks immediately prior to your wife's death there were tensions between you which erupted, on a number of occasions, in situations where your wife offered you violence of a somewhat bizarre kind. Witnesses deposed during your trial to her having attacked you without apparent reason on two occasions and you gave evidence of other incidents of bizarre behaviour on her part; which behaviour was antipathetic towards you. The Crown invited the jury to disbelieve these incidents, although, having regard to the events surrounding your wife's death they were probably of only marginal relevance. I am satisfied that the incidents to which I have referred did take place in much the way they were described by the witnesses called on your behalf. They may help to explain your behaviour on the night you killed your wife although they in no way excuse it.
On the weekend of 29 and 30 April 2000 the Serbian Orthodox community celebrated Easter, a feast the date of which is fixed by reference to the Julian rather than the Gregorian calendar. You and your wife invited some friends, the Simic family, to celebrate Easter Sunday with you at your home. They arrived about 1 o'clock, bringing their daughter Zivana with them. There was no apparent tension between you and your wife during lunch or, indeed, afterwards.
Between about 2.30 and 3.00 pm your daughter Lidija and Zivana Simic left your home and went for a drive in Lidija's car. You, your wife and Ratomir and Anna Simic remained at your home socialising during the afternoon. At about 5.00 pm your daughter returned home because a friend of hers, Tamara Gaspar had arrived at your place.
At about 6.35 pm, whilst the Simics were still at your home, your daughter asked if she and her two friends could go to the Highpoint shopping centre. As they began to leave you had words with your daughter because, as you believed, she was not behaving properly with respect to the motor vehicle she was driving which you had then recently bought for her. I am satisfied, however, that the incident was of little moment and had no real bearing on the tragedy which was to follow.
The Simics left at about 8 o'clock, leaving you and your wife alone. You told police, later, that you and your wife cleared the dishes away and you then returned to the family-room and lay down on a couch. An argument broke out between you during which, as you told police, she demanded that you pack your belongings and leave the premises. You said that you commenced to do this because you were fearful of another intervention order being obtained by her. You went to your garage and as you commenced to load tools onto your trailer you told police that the deceased entered the garage and threw a heavy metal object at you which struck you on the hand, causing a minor injury.
After the incident in the garage you told police that you looked at the deceased and noticed that she was holding a carving knife in her hand. You said that in order to protect yourself you picked up a hammer. Both of you returned to the house. You told police that as you did so you placed the hammer on the floor in the laundry next to the doorway into the family-room. You said that the deceased then sat in a lounge chair brandishing the knife while you sat on a couch in the same room.
You told police that after a short conversation your wife leapt from the chair in which she was sitting and attacked you with the knife. A struggle ensued with your holding the deceased's forearms. During this struggle the deceased's left wrist was cut by the knife which she was holding.
At some point you released your grip, picked up the hammer that was on the floor and struck the deceased with it on the head. You sought to explain the multiple injuries which the deceased suffered to your having struck her again whilst she was falling to the floor.
After striking your wife you went into the garage for a short time before returning inside where you picked up the knife and placed it in the deceased's left hand wrapping her fingers around the handle. You were later to explain this action as being an attempt to ensure that police investigators accepted that your wife had in fact been armed with a carving knife at some time during your altercation with her. After performing this action you telephoned police and offered no resistance when you were ultimately arrested.
A post mortem examination conducted on your wife revealed that she had a comminuted fracture of the skull with contusions to the brain, lacerations and haemorrhage. She also had facial bruises and lacerations. The cause of death was the head injury which she received. Medical evidence given on your trial was to the effect that some, at least, of the head injuries were inflicted when the deceased was face down on a hard surface.
You gave evidence on your own behalf at your trial in support of your defence that, in striking your wife, you acted in lawful self defence. Although your case was put in this way it was clear from your evidence, and I accept, that your were extremely remorseful over what you had done, whether it had been done in self defence or not. I accept your evidence that immediately after the attack on your wife you seriously considered suicide. Accordingly, somewhat unusually perhaps, in a circumstance where you have put forward a defence to a murder charge I am satisfied that you have demonstrated real remorse for the dreadful act which you committed on that Easter Sunday night. In this instance I do not consider that your having contested the Crown case against you in any way diminishes the sincerity of that remorse. I accept that you are truly sorry for what occurred and would do anything now to reverse the consequences of what may well have been a very temporary murderous impulse, were that only possible. The knowledge and full realisation of what you have done will themselves impose a significant punishment upon you.
The jury's rejection of your plea of self defence is not surprising in that there were many actions you could have taken to avoid any attack by your wife, if she was in fact attacking you at the time you sought to retaliate, other than resorting to violence yourself. For one thing you could clearly have withdrawn from the situation and left the house.
The courts must never tire of condemning domestic violence wherever it occurs. When it occurs in its extreme form as in this case, and as in so many cases that come before this Court, it is necessary that condign punishment be inflicted upon the perpetrator.
During the period of your marriage both you and your wife had sought medical assistance in respect of psychological problems. Dr Lester Walton, consultant psychiatrist, who examined you on 3 May 2000 and 2 November 2001 notes that during the marital difficulties which you experienced in the early 1990's you consulted a psychiatrist, Dr N Lewis, who prescribed anti-depressant medication although you appear to have ceased seeing him from about 1991. In the period immediately prior to her death your wife had been taking anti-depressive medication prescribed by her local general practitioner.
Dr Walton's very full report documents your psychiatric history since you have been incarcerated. At one point you were treated in a psychiatric unit and you are still taking anti-depressant medication.
Your two children, to whom I have already referred, were called by the Crown on your trial. They had earlier made statements in which they were both critical of you. However, when actually called, they were somewhat less inclined to support the Crown case against you. In what purports to be a joint victim impact statement filed by them they have written a letter expressing their love for you and, in effect, pleading for leniency on your behalf. Whilst this document might not strictly qualify as a victim impact statement it is of value in the sentencing process in that it places before the Court some material relevant to the effect of this crime on the two remaining persons most affected by it. In this regard I also note and accept your counsel's statement from the bar table to the effect that your children have been severely affected not only by the death of their mother but also by the consequent legal process.
You come before the Court with no prior convictions and a history of hard working devotion to your family. Witnesses called on your behalf on your plea attested to your general reputation being of the highest order. They were not challenged. There is no reason to believe that you will ever offend in this way again. Indeed, like most murderers, this is likely to be your only appearance before a court. Accordingly, specific deterrence has little role to play in determining your sentence.
The principal sentencing considerations in a case such as yours must be the denunciation of this dreadful crime by the Court and hence by the community, the deterring of others who might be similarly minded to seek to resolve their relationship problems by resort to violence and your rehabilitation as a useful and valued member of society. These sentencing objects can only be achieved by the imposition of a substantial gaol term. You are presently 48 years of age. You will spend the greater part of your middle years in gaol. It is to be hoped that upon your release you are able to establish meaningful relationships with your children and perhaps even, their children. If you are to be successfully re-integrated into society it is by seeking that path that you are most likely to be successful.
It is the sentence of the Court that you be imprisoned for 16 years. It is further ordered that you serve a minimum of 13 years before being eligible for parole.
I declare the period of 761 days, being the period of pre-sentence detention be reckoned as having been served in respect of this sentence and I direct that this declaration and its effect be entered in the records of the Court.
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