R v Szitovszky
[2007] VSC 193
•12 June 2007
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1460 of 2006
| THE QUEEN |
| v |
| CHRISTOPHER SZITOVSZKY |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-9, 13-14, 16, 19-23, 26-30 March 2007, 2-3, 27 April 2007 | |
DATE OF SENTENCE: | 12 June 2007 | |
CASE MAY BE CITED AS: | R v Szitovsky | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 193 | |
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CRIMINAL LAW - Sentencing - Murder – Violent attack with axe – Maintains Innocence - Young offender – Good prospects of rehabilitation – Support of family - 18 years imprisonment with a non-parole period of 13 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tinney | Office of Public Prosecutions |
| For the Accused | Mr G.J. Steward with Mr T. Kassimatis | Galbally O’Bryan |
HIS HONOUR:
Christopher Szitovszky, on 3 April 2007 you were convicted of the crime of murder. The victim of the murder was your father, Peter Szitovszky. The maximum penalty for the crime of murder is life imprisonment.
At the time of your father’s murder you were living with your mother and father at 17 Xavier Drive, Wheelers Hill. Your older brother, Simon, also lived at that address but was at the time in Hungary.
In the early hours of the morning of 1 July 2004 neighbours heard an argument outside your house. Two of those neighbours saw a person with characteristics similar in some respects to you in the street, yelling and making hand gestures.
At approximately 6.00 am that morning you telephoned 000 and reported having discovered your father lying near the front door of your house. He was dead.
Your father was a taxi driver. The evidence given in your trial suggests that he had risen early and had left the house to go to his taxi, which was parked in the street.
An axe was lying across your father’s chest when police and ambulance officers attended the scene that morning. The evidence given at your trial revealed that your father had sustained 14 identifiable injuries to his neck and head and to his chest and abdomen. The injuries were consistent with the use of the axe as a weapon. The cause of death was multiple incised injuries to the neck and throat. The evidence given suggested five or six axe blows to the neck, four to the face (three of which were relatively superficial), and four to the chest and abdomen. The evidence was that death would have occurred quickly.
You pleaded not guilty at your trial. You have always maintained, and you continue to maintain, your innocence.
I am bound to sentence you on the basis of conclusions on the facts which are consistent with the jury’s verdict. In the circumstances it seems to me that I must proceed on the basis that you were the person heard by the neighbours and seen by two of them in the street that night, and that you were the person who dealt the blows with the axe which inflicted the injuries on your father and which caused his death.
In considering sentence, in relation to matters adverse to you I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]
[1]R v Storey [1998] 1VR 395 at 369; R v Olbrich (1999) 199 CLR 270; R v Cheung (2001) 209 CLR 1 and R v Ramage [2004] VSC 508 at [25].
You were born on 12 November 1982 and are now 24 years of age. You have no prior convictions of any kind. Members of your family and other witnesses who gave evidence at your trial said that you had never displayed violence. You are a non drinker, a non smoker, and a non user of drugs.
You attended secondary school at Caulfield Grammar, Wheelers Hill’s Campus, and completed your VCE in 2000. You commenced a course at Deakin University in 2001 and deferred in 2003. In the latter part of 2004 you resumed studying at Deakin University. That study was interrupted when you were charged with the murder of your father, some 16 months after your father’s death, and spent approximately five months in custody. You were then released on bail and you resumed study at Deakin University in the second semester of 2006.
Your mother and your older brother indicated by the evidence which they gave in your trial that they fully support you.
In the course of your trial evidence was led concerning your personal situation and your relationship with your father. No additional evidence was led on your plea in relation to those matters.
On your plea a bundle of references were tendered. I have considered those references. It is clear that prior to the crime of which you have been convicted you were a person with a good reputation.
No victim impact statement has been filed in relation to this matter.
Senior counsel on your behalf began the plea by stating that you maintain your innocence. He went on to put a number of matters in mitigation. He submitted that the crime was totally uncharacteristic and alien to the character described by your family and other witnesses called in your trial. He submitted your prospects of rehabilitation are very good. He submitted that your background and education will mean that you will be isolated in the prison community and that your time served in custody will be extremely difficult. He said that the five months you spent in custody on remand had been a harrowing experience for you. He pointed to the fact that you have the continued support of your mother, your brother and your friends. He submitted you are unlikely to re-offend. He submitted that this is a case where a significant difference between the sentence and the non-parole period would be justified.
Your counsel referred to the fact that your father’s death would have been swift. He submitted that that is not a mitigating factor but rather it is a fact indicating that the circumstances of the death are not an aggravating feature.
Counsel for the prosecution submitted that this was a case of a merciless attack with a weapon where there was, without doubt, an intent to kill. He submitted that there must have been a level of premeditation in the attack as the evidence in the trial was that the axe did not belong to the household, and that accordingly it must have been obtained by you for the purpose of the murder. On the plea the prosecutor referred to the evidence which had been given in your trial by your mother, your brother, and one of your friends, to the effect that, whilst your relationship with your father had been poor at times in the past, it was improving at the time of the murder. The prosecutor submitted that this was a serious instance of the crime of murder involving premeditation and a very violent attack as the victim stepped out of the front door of his own home.
At your trial evidence was given by your mother and brother in relation to the family history. My conclusion on the balance of probabilities, on the basis of that evidence, is that you grew up in an uncertain and, at times at least, unhappy environment. Your family experienced financial difficulties. Your parents’ responses to their financial difficulties differed markedly. Your mother has undertaken an extraordinary burden, working for long periods in two full time jobs simultaneously, in order to provide for the family. Your father suffered from depression for which he eventually obtained treatment. On occasions he returned to Hungary to live. There were periods when, whilst your mother was making extraordinary efforts to provide for the family, he remained at home apparently idle and unmotivated. During the period leading up to your father’s death his position and his attitude to life appear to have improved. Initially, he obtained a job as a driver for an organisation named Scope and then, in addition, he obtained a taxi licence. He became a hard working taxi driver. In April 2004 he contributed to the cost of you and your mother and brother undertaking a holiday in Hungary.
Whilst things were improving for your father, my conclusion, on the balance of probabilities based upon the evidence in your trial, is that that was not the case for you. You dropped out of university. The evidence in your trial leads me to conclude that, whilst you were not without friends, you were socially isolated. You did not have a job. Your direct personal contact with friends was limited.
On the evidence before me I cannot make a finding as to what motivated you to kill your father. Further, on the evidence, other than the basic facts to which I have referred, I cannot make findings as to the circumstances in which the murder took place. I do not accept the prosecutor’s submission that the use of the particular axe requires the conclusion that the murder was premeditated and planned significantly in advance. The evidence that the axe used was not from your household came from your mother and your brother. I am not satisfied beyond reasonable doubt that the axe was obtained by you from some outside source in advance of the murder for use as a weapon.
Murder is a most heinous crime. The jury has found you guilty of that crime. All of the matters put by your counsel in mitigation are, in my view, properly to be taken into account, and I do so. In addition, I take into account your age and the matters to which I have referred concerning your family history and your personal situation. Your prospects of rehabilitation are good. The impact of your crime on the victim, your father, is as obvious as it is terrible. The other victims, principally your mother and your brother, revealed in their evidence that, whilst they are devastated by your father’s murder, their overriding concern now is for you.
Notwithstanding my previous observations, I can and I do conclude that this crime related to the particular relationship between you and the victim. Your life has otherwise been unblemished. You have good prospects of rehabilitation. I do not see the issue of specific deterrence as being significant in your case.
The issue of general deterrence is very important. This was a violent and gruesome crime.
In the circumstances for the crime of the murder of your father I sentence you to eighteen years’ imprisonment and I fix a non parole period of thirteen years.
Pursuant to s 18(4) of the Sentencing Act I declare that period to be reckoned as already served and to be noted in the records of the Court is the period of 219 days.
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