R v Trajkovski
[2008] VSC 465
•5 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1645 of 2008
| THE QUEEN |
| v |
| STALE TRAJKOVSKI |
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JUDGE: | KELLAM J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2008 | |
DATE OF JUDGMENT: | 6 November 2008 | |
CASE MAY BE CITED AS: | R v TRAJKOVKSI | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 465 | |
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CATCHWORDS: Criminal Law – Sentencing – Acquitted of attempted murder – Found guilty by jury of intentionally causing serious injury – Offer to plead guilty made at an early stage – Remorse – Sentence of five years and six months’ imprisonment with a non-parole period of three years fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P D’Arcy | Solicitor for OPP |
| For the Accused | Mr S Johns | Theo Magazis and Associates |
HIS HONOUR:
You, Stale Trajkovski, have been convicted after trial of one count of intentionally causing serious injury. The maximum penalty for this crime is 20 years’ imprisonment.
This crime arises out of circumstances which took place in your home in Werribee on Sunday 1 July 2007. You and your wife Suzana Trajkovska had been married for approximately 18 years. The marriage had produced one son, Michael, who was then aged 18 years. Your wife had become unhappy with the marriage and on 22 June last year she moved from the matrimonial home into a unit nearby. She took up residence with a man with whom she worked. She did not tell you that she was leaving your home. With the assistance of your son Michael and the man with whom your wife was taking up residence, she moved a considerable amount of furniture from your home into the unit. This was done in secret and you did not know of what had occurred until your return home from your work on the evening of 22 June 2007. During the ensuing week you and your wife had a number of discussions about your failed relationship. You wished your wife to return to you. She told you on a number of occasions that she did not intend to return. You were extremely upset about her leaving you and about the circumstances in which she did so. It would appear, however, that after approximately a week of leaving you your wife came to believe that you were becoming accepting of the circumstances as she opted to do some washing for you and your son and to make a meal for you. On the morning of Sunday 1 July she brought the washing and the meal which she had made to your home. She brought the clothes inside and placed them on the floor. She then returned to the car to obtain a tray of food which she had prepared. She took it inside the house and placed it on the stove.
Her evidence is that as she was doing so she felt pain in her back, just below her shoulder. She experienced further pain in the back area immediately thereafter and realized that she was being stabbed. She screamed for help. Your son Michael and his girlfriend were upstairs at the time. Your wife gave evidence upon your trial that Michael came downstairs and prevented you from further attacking his mother. Michael’s evidence before the jury was that at the time that he came downstairs his mother was running out of the front door. However, in his statement to the police he stated that when he came downstairs he saw you close to his mother. He said that he thought you might be ‘beating up’ on his mother and he pushed you away from her. He said that he had his back to his mother and that he stood between you and her during which time she went out the door. Michael did not demur from this version at committal. Whatever the truth of the matter, I accept that you desisted from attacking your wife upon the arrival of Michael at the scene. You said ‘sorry’ to him immediately after the attack on his mother. That said, however, you did nothing to assist your wife who was clearly bleeding at this time. Upon leaving the house she got into her car. She realized she was bleeding profusely. She telephoned her male friend. She also telephoned 000. She then drove to a nearby shopping area and stopped her car in the car park. Police soon thereafter attended at that area, as did an ambulance.
Your wife was then taken to the Alfred Hospital. Upon examination she was found to be suffering from a pneumothorax and an intercostal drain was inserted. Clearly that injury was caused by a wound which penetrated the membrane surrounding her lung. The likely cause of the pneumothorax was a penetrating injury of the chest of your wife close to her left shoulder. Examination revealed that there were seven small stab wounds of which five were on her back and two were on her upper left chest. Three of the wounds on her back were located over her left shoulder blade. A further wound was located over her right shoulder blade. There was a further wound half a centimetre or so in depth on her upper arm. Each of the wounds was approximately one to one point five centimetres in width. With the exception of the stab wound which caused the pneumothorax the wounds were described by the treating doctor as being “fairly superficial”. Nevertheless, and although the stab wounds were not deep any stab injury in the vicinity of the chest and back has the potential to be lethal. Suzana Trajkovska spent five days in hospital and made a good physical recovery, although in her victim impact statement she states that she remains troubled by scars. However, it is apparent from the material annexed to her victim impact statement that your attack upon her has caused her considerable emotional and psychological harm from which she still suffers.
After your wife left the home, you remained at the premises.
At 11.36 am police received notification that your wife was situated in the car park at the nearby shopping centre. Police did not attend at your home for nearly an hour later, that is until 12.40 pm although they had made telephone contact with you and requested you to remain at home. Upon the arrival of police at your home you were arrested and taken to the Werribee police station. Your son, Michael, was also requested to go to the police station. Subsequent to this request your son Michael said that he wished to collect some property from his car. The informant, Detective Senior Constable Bitton, observed Michael to go to his car and collect a container. Michael said that there was $50,000 in the container. Mr Bitton looked at it and observed a large amount of cash. He did not count the money and Michael kept it with him. Immediately thereafter a crime scene was established at your home. A Wiltshire cutlery knife of approximately 18 centimetres in length was found by police. That knife was subsequently found to have blood on its blade which matched your wife’s DNA and blood on its handle which matched your DNA.
In the course of police investigation a note was found at the premises. Evidence was given in the course of your trial that the note was written partly in Macedonian, partly in English and partly in Serbian. The accredited translator who gave evidence described it as having been written in “pigeon Macedonian”. The translator who gave evidence at your trial considered that an appropriate translation of the note is as follows:
“To Michael, son. If something happens, don’t be afraid. Sell everything that has a cut and the house. Don’t be disappointed, I cannot stand any more. Coats $8,000, Ford more than 20,000, the house is worth 480,000. Goodbye my son Michael. In the storeroom near the shoes, the last one, take out the top board. There is something for the last service for ‘us’ (or alternatively for ‘you’).”
In giving evidence about this note the translator agreed that it had been written by an uneducated person who was semi-literate in Macedonian. As to the last sentence “There is something for the last service for (us) or (you)”, he stated that the last word was unclear and could be either “us” or “you”. In cross-examination he conceded that the word “servic” as spelt in the note and which appears in the last line seems to be an English word. He said that the same word in Macedonian would mean a “car repair shop”. Finally he conceded that he could not exclude the possibility that the last sentence in the note was consistent with “This is my last giving to you or my last service to you”.
Your trial took 5 days. You did not give evidence as was your right. The jury acquitted you of the charge of attempted murder. They found you guilty of the alternative count of intentionally causing serious injury. The prosecution, in your trial, contended that the note which was found by police was a suicide note which had been written prior to the attack upon your wife. It was contended by the prosecution that the writing of the note and the provision of the money to your son was evidence of pre-meditation of the attack upon your wife. On the other hand, your counsel submitted that the jury could not be satisfied beyond reasonable doubt that the note was a suicide note, and submitted further that the possibility that the note was written after the attack on your wife, but with knowledge of your likely situation in consequence thereof could not be excluded. It was contended on your behalf before the jury that your conduct in stabbing your wife arose in circumstances where you lost your temper and could not control your anger towards her. That is, it was argued that the attack on your wife was not premeditated, but was the consequence of your rage and sudden loss of control.
Clearly the jury were not satisfied that you had an intention of killing your wife at the time you were stabbing her, but were satisfied that you intended to cause her serious injury at the time. I accept that the note which was found by police is equivocal in its meaning. I am unable to be satisfied beyond reasonable doubt that the note was written before your wife attended at the premises or that it reflects pre-meditation on your part to attack her. Although your wife gave evidence that nothing was said by you, or by her before the attack took place, the evidence of Michael’s girlfriend who was upstairs at the time is that there was talking in the Macedonian language immediately before she heard your wife scream. Accordingly, I propose to sentence you on the basis that I am not satisfied beyond reasonable doubt that the attack upon your wife took place in circumstances of pre-meditation but rather in circumstances of your incapacity to control your fury and anger. That is not to say that the attack on your wife from behind is not a most serious offence. On any view your behaviour was horrifying and cowardly. It would appear that your wife was stabbed in a frenzy and on seven separate occasions. She entered your home acting in good will towards you and your son, bringing clothing which she had washed and food which she had cooked and prepared for you. Clearly, the attack was commenced from behind her. The fact that you were angry and hurt about the departure of your wife from your home in no way justifies your violent behaviour. Domestic violence is totally unacceptable no matter what the circumstances.
Nevertheless, as has been pointed out by your counsel there are some mitigating factors. The first of these is that the prosecution concedes that at the committal mention in this matter you stated your preparedness to plead guilty to the charge of which you were finally convicted. It is conceded by the prosecution that an offer to plead guilty to that charge was renewed on two occasions and most recently on the Friday before your trial commenced. Whilst it is true that you that you pleaded not guilty to the alternative count of intentionally causing serious injury before the jury I accept that you did so on legal advice. I accept that you have been prepared to accept responsibility for intentionally causing serious injury to your wife from an early time. I take that matter into account as a matter of considerable weight in your favour, and I accept that as evidence of your remorse. Whilst it is true that no remorse was expressed to police who interviewed you, as throughout that interview you maintained either that you had not stabbed your wife or that you had no memory of doing so, I do accept that you are remorseful. You were seen at an early stage by Mr Michael Crewdson, a psychologist, and just as with the police interview, you contended to him that you had no memory of the stabbing. Mr Crewdson suggested a number of potential explanations for your assertion that you had no memory, none of which indicated any major pathology. No issue arises of a R v Tsiaras[1] or R v Verdins[2] nature. Mr Crewdson suggested that one explanation may be that with a sense of shame you are unable to overtly admit what you have done. I do not accept that you do not remember what happened, but I do accept that Mr Crewdson’s explanation may well explain your continued assertion of your failure to remember the attack upon your wife and that your failure to do so does not necessarily reflect a lack of remorse.
[1][1996] 1 VR 398
[2][2007] VSCA 102
I have been told something of your personal history and your circumstances. You are now 61 years of age. Your were born in a Macedonian village close to the mountains in 1947. You are the youngest of five children and the only one who lives in Australia. Your father was a builder and your family lived in relatively comfortable circumstances during your childhood in Macedonia. You undertook national service in Macedonia for a period of 18 months, subsequent to which you undertook travel. You came to Australia and ultimately returned to stay. You have been married twice. With your first wife you have two children who are now aged 31 and 28 and who live in Sydney but keep in touch with you. Your first wife, who was very young when you married her, left you after approximately three years of marriage. You reported to Mr Crewdson that the separation was sad but relatively amicable and you took custody of your two boys and reared them.
Subsequently you met Suzana and you reported to Mr Crewdson that your relationship with her throughout your marriage was a good one. Your formal education was basic but you are semi-literate in Macedonian and can read newspapers in English, although with some difficulty. You have always been a hard worker and have worked solidly in occupations in meat works, railways and in the building and construction industry. In recent years you have earned a successful living as a self-employed painter and decorator. Mr Crewdson considers that the likely explanation of your behaviour is one of temporary disassociation and impulsive rage. As stated above you were arrested on 1 July 2007. Subsequently on 5 March 2008 you were granted bail upon a number of conditions. From the time of your grant of bail you have lived with relatives in Lower Templestowe. You have complied with all conditions of bail including a condition that you were not to be in contact with any witness, including of course and in particular, your wife.
You have no prior convictions and accordingly I sentence you as a person of previous good character. Evidence was led on your behalf. I heard from Violet Stoichevska a scientist at the CSIRO who described herself as your niece. She has known you all her life. Her family have had regular contact with you and your wife over many years. She got on well with your wife. She was shocked to hear that you had stabbed your wife. She described you as a hard working individual who supported your family and loved them. She described you as a meek individual whom she had never seen engage in violence.
Reports of Mr Michael Crewdson dated 7 February 2008 and 5 June 2008 have been tendered by consent before me. I have read those and take the contents into account. As stated above you are a man who at the age of 61 comes into contact with the criminal justice system for the first time. I accept that your age is such that prison will cause some hardship for you, particularly as a first time offender. Whilst you have been on bail you have continued to work as a painter and decorator and you complied fully with your bail conditions. I consider that your prospects of rehabilitation are good.
However as well as matters personal to you such as the chances of your rehabilitation and special deterrence I must also take into account other factors. In particular the issue of general deterrence is important in this case. Regrettably domestic violence is not uncommon in our society. There are legal mechanisms for resolving family disputes and our community has invested substantial sums in providing counselling and support for those involved in such disputes. There are family relationship centres available to provide dispute resolution processes for those involved in marriage breakdown. The community cannot tolerate the use of violence in marriage breakdown and in domestic circumstances. Members of our community who are unable to control their anger, bitterness and resentment at the ending of a relationship must understand that serious consequences will ensue if, rather than using those legal mechanisms, they resort to violence.
Furthermore I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. In the circumstances before me I consider there is no alternative other than the imposition of a sentence of imprisonment.
I sentence you to a term of five years and six months imprisonment. I order that you not be eligible for parole until you have served a period of three years’ imprisonment. Pursuant to s 18 of the Sentencing Act I direct that you have served 273 days pre-sentence detention and I direct that the same be noted in the records of the Court. Remove the prisoner.
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