R v Traycevska
[2010] VSC 270
•17 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1639 of 2009
| THE QUEEN |
| v |
| PETRA TRAYCEVSKA |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2010 | |
DATE OF SENTENCE: | 17 June 2010 | |
CASE MAY BE CITED AS: | R v Traycevska | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 270 | |
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CRIMINAL LAW – Incitement to commit murder 2 counts – Section 321G Crimes Act 1958 (Vic) – Guilty Plea – Accused’s son murdered - First intended victim acquitted of murder – Second intended victim father of first intended victim – Undercover operative – Sentencing considerations – Applicability of Verdins principles.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Trapnell SC | Office of Public Prosecutions |
| For the Accused | Ms J. Sutherland | Paul Vale Criminal Law |
HIS HONOUR:
On 23 November 2009, you were arraigned and pleaded guilty to two counts of incitement to murder before me in that you did, at Altona Meadows between 22 July 2009 and 24 July 2009, incite “Mick Farnworth” to murder Natalie Oscianko and Andrew Oscianko respectively.
You were charged on 25 July 2009 and committed for trial to this Court on 11 November 2007 without any witnesses being called. You indicated an intention to plead guilty at the committal.
You have a number of prior convictions for dishonesty offences which are not particularly relevant to my task here.
The maximum penalty for incitement to murder is life imprisonment pursuant to s 321I (1) paragraph BA of the Crimes Act.
Background to Offence
On 17 September 2007, the body of a deceased male, Michael Traycevska, your son, was located on the grass verge beside Hume Road, Laverton North. Michael Traycevska had been murdered by the tightening of a ligature around his neck. Following investigation, police arrested Christopher Dowsett and Natalie Oscianko, your son’s de facto partner, in respect of the murder of Michael. Dowsett made full and frank admissions with respect to the murder and offered to cooperate with the police. He gave an undertaking to give evidence at Oscianko’s trial. Oscianko made a no comment record of interview. Dowsett in due course pleaded guilty to the murder and was sentenced to 14 years with a non parole period of 11½ years by this Court on 23 March 2009.
Oscianko's trial commenced on 3 April 2009 and resulted in her being acquitted of the murder of Michael Traycevska. When the verdict was announced there was an obvious degree of anger from the family and friends of the deceased, yourself included.
In July 2009, based on gathered intelligence, investigators from the Altona North Criminal Investigation Unit commenced “Operation Coffer”. This operation related to efforts by a member of your family to incite the murder of Natalie Oscianko. On 22 July 2009, you met with a police covert operative named “Mick”.
During that meeting, you stated the following to covert operative “Mick”:
· your son Michael was a good son and had been murdered;
· his girlfriend Natalie had killed him and had been acquitted;
· you wanted Natalie Oscianko murdered;
· you wanted covert operative Mick to commit the murder;
· you wanted Natalie to suffer before her death by him using a power drill to drill out her eyes; and
· you wanted Natalie buried alive in concrete.
You also stated to the covert operative that you wanted the father of Natalie Oscianko, Andrew Oscianko, murdered as well. You claimed to covert operative Mick that this was necessary as Andrew Oscianko knew that his daughter had murdered your son and you expressed concern that he may revenge his daughter’s death, thereby placing the Traycevska family in danger.
You stated you would pay $15,000 for the murder of Natalie and a further payment of $1,000 would be made for the murder of Andrew Oscianko. You made arrangements to pay a deposit the following Friday to covert operative Mick in order for the murder of Natalie to occur over the weekend of 25/26 July 2009. Final payments would be made after the murders occurred. The prosecution note in their opening that you were due to receive a substantial compensation payment for the death of your son from the Victims of Crime Assistance Tribunal.
On 24 July 2009, you met with covert operative “Mick” in Altona Meadows. You handed him a white envelope containing $4,000 in cash. You advised Mick that $3,000 was a down payment for the murder of Natalie Oscianko and that $1,000 was a down payment for the murder of Andrew Oscianko. During this meeting, Mick stated that you could contact him at any time to cancel the request.
It was arranged that the murder of Natalie was to occur in the early hours of Saturday 25 July 2009. You stated that if Andrew Oscianko was present at that time, he was to be murdered then. You further stated that you wanted Andrew Oscianko “gunned down and filled with bullets”.
On Saturday 25 July, investigators from the Altona North CIU executed a search warrant at your home. They seized an A4 plastic sleeve containing two newspaper articles that you had previously shown to covert operative “Mick” and a piece of paper noting the address of Andrew Oscianko. Following that search you were arrested and charged with the present offences. You were taken to the Altona North police station whereupon you gave a no comment record of interview.
At the date of the plea hearing, you had served 90 days by way of pre-sentence detention. You were in custody from the time of your arrest until you were granted bail on 22 October 2009.
Background
You are now 60 years old. You own your own home. You are separated from your husband, however of late he has been very supportive of you. It was put on your behalf that due to his Macedonian background, he appears to prefer solitary methods of dealing with his grief over the loss of Michael and takes refuge in alcohol. You speak in very fond terms of him now as opposed to during the early stages of the marriage.
You are essentially on a disability pension and the mother of seven children. Two of your children came to Court to support you; Margaret who is now 40, and Ahmed your son-in-law, as well as your daughter Natalie, who is 30.
You lost both your parents in an automobile accident when you were three. You were then to go and live with your grandparents, which you did briefly, before being placed in a Salvation Army home until the age of five, when you were returned to your grandparents. For approximately six years you suffered sexual abuse at the hands of your grandfather, who you later learned suffered from a type of war induced psychosis. There followed a finding that you were being exposed to moral danger and you were then placed into the State run Allambie centre.
From here you ran away, keeping company with a man many years your senior before meeting up with family at Wodonga and eventually being placed back into the institution. You were approximately 16 when you again visited your grandparents, for the purposes of seeing your grandmother. Your grandfather was there and came at you, telling you that you were not to say anything and you picked up a poker and attacked him with it. You believe you were then charged with assault and institutionalised at Winlaton. You would have been dealt with in the Children’s Court and as such, that count and its consequences do not appear on your record.
It was at this time you developed a dependency on alcohol. Through your counsel you stated that became a method of self-medication and developed into a substantial habit which in turn transformed to dependence. At age 18 you met your first husband Alex, who was 17 years your senior. As your relationship developed, it was marred by your dependency on alcohol. Together you had two children, Sharon and Margaret. Alex died of lung cancer in 1997; however you had separated many years before then.
You were 29 when you met and married Christopher, your now estranged husband. In the initial stages of that relationship, your husband was a gambler and a drinker and his abuse and aggression often resulted in stays in women’s refuges. You coped by drinking more alcohol.
Your alcohol problem necessitated your attendance at Pleasant View in the 1980s and ultimately resulted in your successfully overcoming your drinking problem while in your 30s. Counsel stated on the plea that this heralded a new chapter in your life.
In 2000, you were diagnosed with breast cancer which resulted in a partial mastectomy and thereafter chemotherapy and radiation was administered. Your oncologist was not positive at the time as to the prospects and you yourself feared the worst and became extremely anxious at the prospect of not ever seeing your children again. Ultimately you recovered and currently your disease is in remission.
There is a strong history of mental disorder in your family. It would appear your grandfather, as previously mentioned, suffered from some sort of mental disorder. Your son Michael suffered from depression, as do some of your other children suffer from depression. Your daughter Natalie has been hospitalized for psychiatric problems.
You have shown great strength and determination in the face of adversity. Prior to the plea you had been living at home with your 15 year old son and 18 year old daughter.
Mrs Traycevska’s Explanation
Ms J. Sutherland, who appeared for you on the plea, read to the Court your own explanation for your behaviour:
My son Michael, 26-year-old, was murdered. Later that night Homicide detectives came to my home to break the devastating news. That was when the whole world came down on me. A few days later the informant investigating the case arrested Christopher Dowsett and Natalia Oscianko. During the interview Christopher Dowsett made full admissions and entered a plea of guilty for my son Michael and was sentenced in the Supreme Court on March 23, 2009 to a maximum 14 years, minimum 11 and a half.
During Natalia Oscianko’s trial Christopher Dowsett and Julie Becker went Crown witnesses. They knew what was going on, how they planned to murder him. After one and a half days of hearing step-by-step from the beginning to the end of the longest, most scared and most painful last three minutes of little boy’s life just devastated me. I wasn’t there in his last breath to help my son Michael. Then hearing throughout the trial the medical evidence on the strangling and how the doctors said there are three different ways of actually dying from strangulation and then suffocation ultimately. When I heard the doctor actually explain that in two of the ways in dying from this type of strangulation is that the victim would normally go unconscious after the first minute but with the way my son Michael died was that he didn’t go unconscious, he put up a struggle. He tried to defend himself and uttered the words, ‘Can’t we work this out.’ Then in Christopher Dowsett’s own words that Natalia was on top of him holding him down so ‘I can get the rope round his neck’. Then I had to hear that Christopher knew my son was dead when my little boy urinated, losing his dignity and suffering humiliation. I can’t get the thoughts and especially the pictures of the way the doctors had explained and especially in Christopher Dowsett’s own words how he and Natalia had killed my son and the way he had suffered. I just can’t take the picture of my son out of my mind gasping for his last breath. I break down and feel so empty that life and everything in it feels so worthless.
When Michael’s life was taken that was the moment in my life, my world, my existence was taken. I had to hear that he was initially to be thrown from the E J Whitten bridge. The thought of my son not being found brought me to tears. To this day I thank the person who found Michael and rang the police to tell them they had come across a person he believed to be dead lying face down in rocks and prickles. Entering the morgue I screamed. Seeing Michael cold and lifeless. I collapsed and I couldn’t believe or want to believe in my son being dead. Unfortunately and sadly the words from the police about Michael were confirmed. I can’t explain the nightmare. I visited the Altona cemetery to find a plot for Michael but there was nothing good enough for my boy. On Friday afternoon we travelled to the Williamstown cemetery and met the curator. I’m trying to deal with this grief.
Sentencing Submissions on behalf of the Prisoner
Counsel on your behalf conceded that denunciation and general deterrence are significant curial factors when sentencing. Ms Sutherland submitted that whilst the imposition of a goal term was inevitable, a strong component of mercy was ultimately required in the sentencing disposition. This was so not only because of your background and the dreadful and inequitable loss that you suffered, but also because of the struggles that you have demonstrably managed to overcome. She put as follows:
Can one really think of a worse start in life that at age three both parents are killed, then she is in the home and then she goes off to grandfather and grandmother and thereafter six years of sexual abuse, in those days often it was the child that was at fault, it was often seen running away, getting into alcohol as a way of self-medicating, having seven children, and even though they have had their challenges they are beautiful children she tells me, she is proud of each and every one of them and they are making their own way in life, then of course in the year 2000 being struck down with cancer and somehow getting through that and thinking that her life just for once may be going in the right direction and things would be good, and then of course this hideous crime is committed. Yes, she has done the wrong thing, she has done the wrong thing in a most profound way, and we all understand that, but to lock this woman up for a lengthy period of time, and I understand the Crown are going to make submissions if called upon pursuant to the authority, it is a pretty heavy sentencing range in my respectful submission.
It was further argued that I should view the events giving rise to these charges as one transaction. That is, the second count on the presentment should be viewed as part and parcel of the one plan, in that it was not hatched independently, in a temporal sense. It was put that in your mind at the relevant time, Mr Oscianko knew of the guilt of his daughter. That you were worried about your family and what might happen to them. With regard to questions of accumulation, it was put that partial accumulation was applicable and a longer parole than usual was urged. It was highlighted that you pleaded guilty at the earliest opportunity albeit it in the face of an overwhelming Crown case.
A number of reports were tendered on your behalf. I was taken to a report Dr Ruth Vine dated 8 February 2010 wherein she suggested that a community-based order would be suitable. The report details the concerns of Dr Vine in relation to the anxiety and depression you suffer being exacerbated upon a return to prison.
In my opinion, Ms Traycevska would be at a considerable risk of worsening depression and anxiety should she again be incarcerated and receive a custodial disposition. While Ms Traycevska would be able to receive some degree of counseling and ongoing psychotropic medication in custody, she would not be able to continue the program of psychological counseling in which she is currently engaged with Ms Vicki Palmer. I understand she has had at least two assessments through the State-funded mental health system, and it is anticipated they will maintain a degree of oversight and supplement the support provided by Ms Palmer. I understand that her general practitioner, likewise, remains keen to continue involvement in her treatment and care. Thus, from a psychiatric perspective, it would certainly be appropriate that consideration be given to a community-based disposition, either as a suspended sentence or Intensive corrections Order, with requirement that she continue to receive psychological assistance and support, and assessment and treatment through the mental health service, as indicated.
Dr Ian Calcutt, your general practitioner, in his report of 16 March 2010, said:
To sum up, Petra is a very vulnerable person, with significant depressive illness complicated by recurrent bereavements and post traumatic stress syndrome. The stress of prison would be a very great psychological burden for her, and as Dr Hill suggests, the risk of suicide would be significant.
I received a report from Vicki Palmer, a psychologist whom you saw over a long period of time. She appears to have acted as a general counsellor and her report was of little assistance to me. I also received a detailed report from Dr Tejraj Tawde from Mercy Mental Health dated 11 February 2010. You had been referred to that service by Dr Calcutt after your release on bail, although you had been a patient at that service after the death of your son. At that time, you were suffering from depression. Dr Tawde relevantly reported:
In summary, Petra Traycevska was diagnosed with Post Traumatic Stress Disorder, recurrent Major Depression and Bereavement in context of severe psychological, legal and financial stressors. The records suggest that Petra Traycevska has been compliant with the appropriate follow-up required to meet her mental health needs. In terms of her prognosis, at present her risks of self harm are low and if she remains complaint with her treatment she is very likely to continue improving in her mental health and wellbeing. The support of her family has been a significant protective factor for her, although it needs to be remembered that the family are also bereaved and stressed. Her mental health is likely to worsen with an increase in the risk of self-harm as the upcoming court hearing and potential incarceration approach.
It should be noted that the report from Dr Sean Jespersen, psychiatrist, and Leanne McGain, senior clinician, to Dr Calcutt after you were first referred to Mercy Health, observed:
Petra is at risk of developing psychotic depression but nil currently. Risk is low to moderate and her mental state will need to be monitored closely over the upcoming months leading up to and following the murder trial.
It was in that context that I was urged to have regard to the principles set out in R v Verdins.[1] In particular, to have regard to your moral culpability and whether or not you are a suitable person to be used as an example for general and specific deterrence.
[1](2007) 16 VR 269.
Substantial submissions were made to me by Mr Trapnell on behalf of the prosecution in relation to the seriousness of the offending. I regard this offending, when viewed objectively, as being serious examples of offending of the kind. Your wish to see Ms Oscianko tortured is a matter of aggravation, as is your calculated view that her father should be murdered to prevent revenge, and it may well have been motivated by issues relating to the custody of your granddaughter.
It was submitted that there was little room for the operation of the Verdins and Tsiaris[2] principles because there was no connection between any mental illness from which you suffer and the offending. It was conceded that I would be obliged to have regard to Dr Vine’s view of the effect which incarceration would have upon you.
[2][1996] 1 VR 398.
I am satisfied that a fair reading of Dr Jespersen’s report is such as to indicate that at that time your depression was significant, but manageable.
Dr Calcutt said:
He (sic) psychological state seemed to stabilise after her contact with the Werribee psychiatric service, but it is now clear that this was not the case. It is now clear that the result of the investigation into her son’s murder did not satisfy her, and in particular the fact that on (sic) of the people she was sure was responsible seemed to get off scot free. I was unaware of this, but the depth of her feeling is clear from subsequent events.
A psychiatric examination of her after the event (performed by Dr Rebecca Hill) found evidence of post-traumatic stress disorder as well as major depression. She thought Petra’s risk of suicide when she saw her was significant but ‘manageable’, but that the risk might increase as her court date approached and possible incarceration became a possibility.
I am satisfied that on the whole of the evidence, you were suffering from a combination of major depression and post-traumatic stress disorder at the time of offending and that you are now.
Those conditions do reduce your moral culpability to a degree. Many people in the community would empathise to some degree with your position, but it cannot be condoned. The aggravating features are important and although your moral culpability is reduced, there is still a need for punishment and denunciation. You simply cannot take the law into your own hands.
This enterprise could not have succeeded, but not due to any decision which you made. There was, however, s degree of unreality about it.
In your case, the principles of general and specific deterrence will be moderated because of your mental condition and I have regard to Dr Vine’s report, which I have quoted.
On Count 1, you are sentenced to be imprisoned for 5 years and 6 months. On Count 2, you are sentenced to be imprisoned for five years. I order that 18 months of the sentence on Count 2 be served cumulatively upon the sentence on Count 1.
That is a total effective sentence of 7 years.
Because of the issues I have previously dealt with regarding you, it is appropriate to fix a lower than usual non-parole period. I direct that you serve a period of four years before being eligible for parole.
I am obliged to indicate what sentence I would have imposed if you had not pleaded guilty. As has now often been said, it is very difficult to isolate that feature because if you had conducted a trial, many of the other features which operate to your credit may not have been present. I would have imposed a sentence of 9 years with a non-parole period of 6 ½ years.
I declare that a period of 181 days be reckoned as having been served under this sentence, and direct that this declaration and its details be entered into the records of the Court.
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