R v Vikic
[2016] VSC 818
•19 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0037
| THE QUEEN |
| v |
| RASIM VIKIC |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 November 2016 |
DATE OF JUDGMENT: | 19 December 2016 |
CASE MAY BE CITED AS: | R v Vikic |
MEDIUM NEUTRAL CITATION: | [2016] VSC 818 |
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CRIMINAL LAW – Sentence – Murder – Plea of not guilty – Accused claimed self-defence – Accused stabbed deceased in the back with severe force – Killing not premeditated – Limited remorse – Low level intellectual impairment – Moderate prospects of rehabilitation – Sentenced to 20 years imprisonment with 16 years non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr D Hallowes SC | Paul Vale Criminal Law |
HIS HONOUR:
Rasim Vikic, on 25 August of this year you were convicted of the murder of Leigh Andrew Graham who was then 31 years of age.
The events which led to that conviction may be stated briefly. In the early part of January 2015 you had been living with your girlfriend Kellie Richards in a bungalow at 4 Warwick Road, Sunshine. At that time you were both addicted to heroin. On Thursday 10 July 2015, you had an argument with Ms Richards, who left the house. She spent the night at a girlfriend’s home.
When she returned to Warwick Road on Friday she found that you were not there, as you had been told to leave the premises by the principal tenants. Ms Richards then went to 2 Essex Street, North Sunshine where Mr Graham lived. It was a boarding house and Ms Richards had lived at the house in the past.
Ms Richards did not tell you where she had gone but she did have contact with you on Saturday by text. She was very resentful about the breakdown of the relationship. She told you she was living in a rooming house. She did however say that she might see you on Saturday night at a party.
On Sunday you contacted her and asked her to ring you and told her that you knew that she was at Mr Graham’s place. Mr Graham and Ms Richards did go to the party and consumed drugs and alcohol. They spent much of Sunday sleeping.
You eventually came to 2 Essex Street. You have suggested that it was by the invitation of Ms Richards but she has said it was not. You asked to stay at the house because you had nowhere else to go and you were allowed to do so. The precise sequence of events is not clear. Ms Richards gave evidence that she gave you a sleeping bag and said that you could sleep in the shed at the back of the house ‘like a dog’. You struck her to the face. You say that about that time Mr Graham told you that you could stay in the back room but that you would have to be out by Monday.
You made a trip to the Braybrook Hotel, which was nearby, and collected some cigarette butts and returned to the house. It is known that you were at the hotel between 8.13 and 8.25pm, and the call to 000 following the stabbing of Mr Graham was at 9.15pm.
When you returned to the house you asked Ms Richards for some food, which she prepared, and you ate some in the back bedroom. You asked her to stay in the room but she would not. The two of you then started arguing.
There is some confusion about the evidence given by Ms Richards as to when she was struck and as to when the commotion took place about sleeping in the shed. In any event, she said there was an argument in that room between the two of you and that Mr Graham intervened. On the probabilities, I think it is likely that it was at that time that you had struck her and that is what caused Mr Graham to intervene.
Ms Richards said that Mr Graham sent her to his bedroom where she had been sleeping. That room was originally the lounge room of the house and Ms Richards said she was sleeping in the bed and Mr Graham on the couch. In her narrative Ms Richards said that she heard Mr Graham say, ‘Fuck, he stabbed me.’ When she came out of the room Mr Graham was against one of the bedroom doors near the front door of the house. She asked you what you were doing and you said, ‘You’ve been sleeping with him’ and she told you that she had not. She told you to get rid of the knife.
Mr Graham had by then slid and fallen to the floor. Ms Richards rang the ambulance, although she says you told her not to. In the 000 call Ms Richards said that Mr Graham had been stabbed during a run‑through. You both made attempts to administer CPR until the police and ambulance arrived. After the police arrived, you said it had been a Sudanese male who had been in the house and you had seen him run out the front door.
You were taken to the police station where you repeated largely that version in detail in a statement which you signed.
When you were at the police station police recovered the murder weapon, a large kitchen knife, from a box seat in the kitchen. There was what appeared to be plaster on the knife. That was significant because there was a mark on the wall next to the front door apparently made by a knife or some other sharp object. The information about the finding of the knife was passed on to Detective Senior Constable Hupfeld from the Homicide Squad who was then at the Sunshine Police Station. He then arranged to conduct a formal interview with you.
In the early part of the interview you maintained your earlier version and denied having anything to do with the stabbing. After it was put to you that the knife had been found, you put forward a different version. You said that Mr Graham had agreed to you staying at the house but told you it would have to be outside. You said it was Ms Richards who told you you could sleep in the back bedroom. You said that Mr Graham later saw you in the house and an argument developed in which you said Mr Graham said to you, ‘I’ll sort out the cunt’ and he then retreated into his bedroom. You further said that you went back into the back bedroom where you picked up the knife, which somehow managed to be there, and went back into the hallway where Mr Graham lunged at you and you stabbed him once to the shoulder in self‑defence.
You agreed to take part in a re‑enactment and with the police went to 2 Essex Street. In that re‑enactment you repeated the version set out above but added that when you went to the doorway of Mr Graham’s bedroom he charged at you and you then went and armed yourself. You said that Mr Graham armed himself with a grey brick which was visible in the hallway and he confronted you with a brick in his hand. You said when he lifted the brick up you stabbed him in the upper back because you were scared. You said he dropped the brick, which you kicked out of the way. Prior to visiting the scene you had made no mention of the brick.
A post‑mortem examination of the body of Mr Graham was conducted on 13 July 2015 and three recent injuries were observed; a large wound to the upper left arm, a relatively small wound to the soft tissue of the left shoulder, and the fatal wound to the upper middle back. The fatal wound had a downward trajectory for about 12 to 13 centimetres. It perforated the aorta. It would have required severe force. The two wounds to the back were such that the sharp end of the blade was at the bottom of the wound. Although a number of substances were detected in the blood of Mr Graham, they do not appear to have had any particular significance in relation to his behaviour.
This case was conducted on the basis that you were acting in self‑defence and that what you said in the record of interview and re‑enactment about being under attack was largely true. The jury were ultimately satisfied beyond reasonable doubt that that was not so. On the whole of the evidence I do not think that that was surprising.
I am satisfied beyond reasonable doubt that you stabbed Mr Graham in the back. Although it is the evidence that he had his back to the wall near the front door, that is consistent with a front on attack by you on Mr Graham coming out of his bedroom, which was a small distance away from that spot. The fact that the attack took place near the front door is reinforced by the damage to the wall, apparently caused by the murder weapon. I also give weight to the proposition that to have caused the two wounds to Mr Graham’s back while facing him, you would have to have been holding the knife in an upside down position.
I am also satisfied that your reasons for attacking Mr Graham were anger and jealousy. I accept you genuinely cared for Ms Richards and you believed that she was sexually involved with Mr Graham. I doubt that that was so, but you were told something by Ms Richards which may have led you to a different conclusion.
On the plea, it was urged by your counsel that I should find that your intention was to inflict really serious injury rather than to kill. Although I was prepared to and do conclude that this was not a premeditated killing—and that factor is a very important one in your favour—I do not think that much would flow in your favour from a finding that your intention was to have caused only really serious injury because it would be at the high end of really serious injury.
It should be noted the blow to the upper left arm passed through the arm entirely. When regard is had to the nature of the weapon and the two particularly significant blows, one to the back and one to the arm, delivered from behind, and the need for the use of severe force to cause the back wound, this becomes a reasonably serious example of the crime of murder.
It is not helpful in the sentencing process to engage in philosophical analysis. I accept that you acted quickly and did not engage in any great analysis of what you were about to do, but you did want to punish Mr Graham and you did want to get him away from Ms Richards. That is actually more consistent with intent to kill. The jury convicted you of murder rather than manslaughter.
On the plea I received a report from psychologist Mr Jeffery Cummins dated 6 October 2016 and a report from neuropsychologist Dr Linda Borg dated 31 October 2016. I will return to those reports.
You are now 38 years of age. You were born in Melbourne into a reasonably strict Bosnian family. You have an older sister and a non‑identical twin brother who died of an overdose when he was 16. You presently have at least some contact with your family.
You attended St Albans Primary School and St Albans Secondary School. You did not do well at school and attended special classes for spelling and mathematics. You did not complete Year 10.
You moved out of home with your brother when you were 15 or 16. Your brother was in Ballarat and that’s when you first used drugs. The two of you came to a share house in St Albans but later moved back to Ballarat and it was then that your brother died.
You were given a one‑way ticket to Bosnia on your 17th birthday. It appears that that was done by your family in an attempt to get you off drugs and to help you manage your grief related to the death of your brother.
On your return to Australia you worked on and off in the building industry, sometimes with family members and at one stage lived with your uncle. You worked in the building industry until sometime in 2009 or 2010. You have not worked since.
You were in a long‑term de facto relationship, on and off from about 2001 until 2007. You have a 12 year old son from that relationship who suffers from autism. Your former partner has brought your son to see you in prison three or four times. She now has another partner and has just had another child. I accept that further contact with your son during your sentence, other than by telephone, will be difficult and I have taken that into account.
For 12 months prior to July 2015 you had been in a relationship with Ms Richards. Since your separation from your former partner, your drug and alcohol abuse has increased and you regard your mental health as having deteriorated. Your physical and mental health is hard to determine because your memory about these things is not good. You do appear to have been assaulted and have had experience in the mental health system.
You have abused alcohol for many years. You started smoking cannabis at about age 14 and had been a daily user up to the early part of 2015 when you started exclusively using heroin, which you had been using for about five years. During that period you had a significant addiction to heroin.
You have received very little meaningful treatment for your drug dependence. You are presently being treated for insomnia.
In his report Mr Cummins found that you are moderately depressed and he suggested that a neuropsychologist’s report be prepared. Under the heading ‘Opinion and Conclusions’ Mr Cummins said:
At interview it was obvious he was still having difficulty coming to terms with the jury verdict, being one of murder. He stated at the time of his offending he would have been under the influence of heroin and possibly also alcohol. At interview he stated he believed he stabbed the deceased man as a result of genuinely feeling physically threatened, although he also said he now accepts that he may have “imagined” he was being threatened – “because of my paranoia”. In this regard he wondered whether his level of paranoia was solely reflective of his chronic drug usage of cannabis and more recent usage of heroin and whether in the alternative his elevated level of paranoia was primarily reflective of him being assaulted on multiple occasions and therefore “anticipating the worst”.
He expressed shame and regret concerning his offending behaviour and emphasised it was never his intention to kill the deceased man, although simultaneously he acknowledged the jury had found him guilty of murder.
Based on his comments and presentation at interview, it is likely he does have at least a low level ABI, [ABI is an acquired brain injury] which would be reflective of his chronic poly-drug use and/or reflective of head injuries. Under these circumstances, it is my opinion it would be appropriate to have Mr Vikic neuropsychologically examined. Once a neuropsychological report has been obtained, I would appreciate the opportunity to comment further on Mr Vikic’s prognosis.
At interview Mr Vikic appeared to be genuinely remorseful and shocked that he had not only stabbed someone, but had caused that person’s death. I accept it is possible that Mr Vikic offended as a result of generally experiencing symptoms of elevated paranoia, although at interview Mr Vikic was so vague and spoke in such general terms about these issues that I was unable to form any specific opinion about the relevance of his paranoid thinking to his offending behaviour. In this regard, if your office is able to obtain any medical file from Western General Hospital, I would be prepared to comment further on this issue.
The remorse described by Mr Cummins, of course, is limited because you have difficulty taking responsibility for what you have done. You are yet to rid yourself of the notion that you acted in self‑defence, although I suspect you genuinely believe it.
In her report Dr Borg says that you do have some intellectual impairment that makes it more likely for you to engage in inappropriate and impulsive offending which is a feature of this case.
Apart from that matter, there is little to be found in the psychological material as a whole which would lead me to significantly mitigate your sentence but I have taken it into account. I should also add that I have taken into account the limited remorse which you express because at least you do have very firm regret for taking the life of another human being.
You are now employed in prison as a cook and have returned only one positive urine sample, which is to your credit.
On the plea I received victim impact statements from Karen Konynenberg, Mr Graham’s mother, from Ms Richards, from Kate Vaughan, partner of Mr Graham, on her own behalf and on behalf of her children Keira‑Lee and Xavier Graham, from Keira‑Lee Graham on her own behalf, and from Melissa Sheedy, partner of Mr Graham and mother of Aurora May Graham. Those statements show the long‑lasting effect which offending such as yours has on a broad range of people in differing ways. Keira‑Lee Graham’s statement was particularly moving. I have taken that material into account.
You have a number of prior convictions which are not all that serious and rather typical of persons who are addicted to drugs. You were placed on a Community Correction Order in June 2012 for 12 months. You did not avail yourself of the opportunities that order gave you. It does accord with your assertion to the professionals that by then your life was pretty aimless.
I direct that the material I received in relation to your dealings with the Department of Corrections in relation to Community Correction Order be placed on the court file.
I take into account that to some degree you have been held in your cell for long periods, although some of that time was caused by your own conduct, and I direct the material that I have received about pre‑sentence detention and the circumstances of your detention be placed on the court file.
I have to make some assessment of your prospects of rehabilitation. At the time of your offending your prospects generally were bleak. I think they are now less bleak because I consider that your enforced separation from drugs of addiction could only be to your benefit. I believe that you have some understanding, at least, of the extent to which you have wasted many of the opportunities which have been open to you. I hope that you will be able to keep contact with your son. You are relatively young and I regard your prospects of rehabilitation as moderate.
I am to have regard to just punishment, general and specific deterrence and protection of the community and I have done so.
You are sentenced to be imprisoned for 20 years with a non‑parole period of 16 years. I declare that you have served 433 days by way of pre‑sentence detention. I direct that this declaration and its details be entered in the records of the court.
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