R v Vjestica

[2005] VSC 315

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1463 of 2004

THE QUEEN

v

BORISS VJESTICA

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JUDGE:	BONGIORNO J
WHERE HELD:	Wodonga
DATE OF HEARING:	16-19, 23, 25-27 May and 30 June 2005
DATE OF SENTENCE:	11 August 2005
CASE MAY BE CITED AS:	R v Vjestica
MEDIUM NEUTRAL CITATION:	[2005] VSC 315

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Criminal Law – sentencing – murder – pre-meditation – no proven motive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Solicitor for Public Prosecutions
For the Accused	Mr D Drake	Clarebrough Pica

HIS HONOUR:

1. At about 8.30am on 15 October 2003 in the driveway of a house in Schlink Street, Wodonga, you shot Shaun Francis Finnigan.  He was a 17 year old boy, the son of your de-facto wife, Gillian Finnigan, with whom you had lived for about three years.

1. You stood trial for murder in respect of this shooting and, on 27 May 2005 you were found guilty by the jury.  Your former de-facto wife was acquitted by the same jury of attempting to pervert the course of justice with respect to events which allegedly occurred immediately after the shooting.  It is now the duty of this Court to sentence you according to law.

1. Although the background to this shooting is not altogether clear,  what does emerge from the evidence is that in the days immediately prior to it Shaun Finnigan was avoiding contact with you and, possibly, his mother and that he was in fear of you.  Your case was that he was avoiding both of you because of his reluctance to go to Melbourne to commence a bricklaying job which had been arranged for him and which you and his mother favoured.  Whether this was so or not now matters little, although in so far as these circumstances obscure any provable motive for the murder the sentencing task facing this Court is, to that extent, more difficult.

1. Shaun Finnigan’s shooting was witnessed by a number of people who gave evidence upon your trial.  Generally, their evidence was that on the morning of the shooting he and a number of his friends were working on a motor vehicle in the driveway of the house in Schlink Street when you pulled up outside in your car.  These witnesses said that you alighted from your car and walked up the driveway towards Shaun Finnigan who began to walk towards you.  Some words were exchanged following which you fired a single shot from a hand gun at very close range which struck Shaun Finnigan in the region of the right clavicle.  He did not fall, but rather ran towards the rear of the driveway to the back of the house holding his right shoulder area.  You said nothing to anyone but turned and walked in an unhurried manner to your car and drove away.

1. The general consensus of the evidence was that the words exchanged by you and the deceased included words to the effect that you asked him if he was “concerned” and if he thought that he was a “big man.”  The shooting occurred almost immediately after those words were spoken and with your holding the weapon, a crude pistol created from a sawn off .22 calibre single shot rifle, either against or very close to his body.  Whether Shaun Finnigan said anything in reply to your questions is not clear, although one witness at least thought that he said “yes” and another that, as he began to walk towards you, he said “I’d better face him.”  Immediately before presenting the gun at the deceased you had pulled it from the waist band of your trousers.

1. Your version of the shooting which was heard for the first time when you gave evidence before the jury during your trial was that early that morning, after taking the deceased’s mother to work, you decided to look in Shaun’s room “to see if there was something there that shouldn’t be.”  You were referring to drugs.  You said you found some foil with powder in it and then, in the inside pocket of a suit, you found a gun.  You said you were shocked.  You said you pulled the trigger of the gun, which did not have a trigger guard, twice without result. 

1. You told the jury that having found the gun, you decided to confront the deceased with it.  You went looking for him.  You were initially unsuccessful, but eventually found him at the house in Schlink Street.  You said you had placed the gun in the glove box of your car but that before alighting from the car you had put it in the waist band of your trousers.  Your version of the verbal exchange with the deceased was somewhat longer than that deposed to by other witnesses but ended with your pushing the deceased in the chest region with the barrel of the gun, remonstrating with him for having had it in your house.  You said that then, in some way, the weapon discharged accidentally.  You were shocked by the event, you said, such that you left the scene without investigating whether, in fact, Shaun Finnigan was seriously hurt.

1. By its verdict the jury rejected your account, at least of the incident itself.  It found that the discharge of the gun was a deliberate act on your part with the intention of either killing Shaun Finnigan or at least inflicting really serious injury upon him.  Whilst the jury did not necessarily reject your story of having found the gun in the circumstances you said you did it is quite likely that it did do so, there having been evidence that you had had that very gun in your possession some days prior to the shooting.  However, for sentencing purposes, it matters very little.  Although the prosecutor submitted that the murder was premeditated in the sense that you had gone looking for Shaun Finnigan with the intention of killing him, the highest inference the evidence will safely bear beyond reasonable doubt is that you formed that intention or, at least, the intention to do him really serious injury immediately before you carried out the act. 

1. You are 38 years old and single.  You are the son of Serbian migrants who came to this country in 1971 when you were aged four.  You have a sister, Vesna.  Your father is dead but your mother, now aged 68, visits you regularly in prison and your sister supported you throughout this trial. 

1. A number of witnesses were called in the course of your plea.  They attested to various aspects of your life including your willingness to take responsibility for your mother and sister when your father was ill and after he died and your acts of kindness to various people in the area in which you lived.  They spoke of your interest in soccer and its promotion and your skill at the game.  There was evidence of an occasion on which you probably saved a child’s life in a near drowning incident.

1. Since you have been in gaol you have apparently conducted yourself in an exemplary manner and have undertaken a number of courses available to assist in your ultimate rehabilitation.

1. In the course of your adult life you have worked in a number of unskilled and semi-skilled occupations such as carpet laying, truck driving, plastering and similar occupations.  Your sister described your work ethic as being very strong. 

1. You have admitted to a number of court appearances for various offences of a relatively minor nature, although one of them did involve violence.  However, even in respect of that offence, you received a relatively small fine.  You have never served a prison sentence for any prior offence.  Your prior convictions are, accordingly, of no relevance in respect of the fixing of this sentence.

1. During the course of your trial there were a number of references to the victim’s father, Paul Finnigan – Gillian Finnigan’s former husband – also known as Possum.  He has filed a victim impact statement in which he attests to the effects of this crime upon him.  Those effects are those which one would readily accept as being the natural result of the tragedy to which he has been exposed.  In so far as that statement contains relevant and admissible material it will be taken into account in the sentencing process.

1. Your counsel made a number of cogent submissions on your behalf in support of the proposition that you should have some leniency extended to you by the Court.  He said you had always been prepared to plead guilty to manslaughter in respect of the killing of Shaun Finnigan and that this indicated some acknowledgement on your part of the wrong you had committed.  However that may be, it is not an acknowledgment of a deliberate killing of which you have now been found guilty and can have but little weight on the overall assessment of an appropriate sentence in your case.

1. Your counsel also stressed that you accepted a quasi-parental welfare role in the life of the deceased after commencing to live with his mother.  He said you tried to steer Shaun in a law-abiding direction and promote in him a sense of responsibility.  But this submission depends upon largely unproven assertions.  In the absence of a proven substantiated motive for this crime and a much more extensive examination of your relationship with the deceased, the Court would need to be very careful indeed before reaching any conclusion on this issue.  Your relationship with Shaun Finnigan may have been as you would have the Court accept.  However, on the available evidence such a finding could not be made even on the balance of probabilities.  Even if it was it is difficult to see how it could affect your sentence.  After all, you have been found guilty of deliberately causing his death. 

1. On 26 June 2005, you were assessed by Mr Jeffrey E Cummins, a consulting clinical and forensic psychologist at Port Philip Prison.  His report of that assessment is before the Court.  It is completely unremarkable.  You were, at the date of his assessment, still protesting your innocence of murdering Shaun Finnigan.  You otherwise presented as a seemingly normal individual caught up in events which you maintained were not your fault although you acknowledged to Mr Cummins, as your counsel did to this Court, that you deserved to be convicted of manslaughter.  You expressed surprise at the jury verdict, particularly because the Crown was unable to prove any motive for what you did.

1. Mr Cummins does not comment in his report on any remorse you may have displayed in respect of Shaun Finnigan’s death, but his description of your attitude leads to a conclusion that any remorse you feel is confined to that which might be expected following an accidental shooting – not a murder.  This is consistent with your position since the trial commenced.  It avails you little in respect of the fixing of your sentence. 

1. Mr Cummins thought you were of at least high average intelligence and had no signs or symptoms of any mental illness or personality disorder.  He thought you were unusually calm and attributed this to your shock and disbelief at the jury verdict.  He expected that the full effect of the verdict and consequent sentence may not really register with you for some time. 

1. You told Mr Cummins that it was only after associating with Gillian Finnigan that you came to realise that she and her family had an extensive history of involvement with drugs and that you wanted to shield Shaun Finnigan from these influences.  You explained the events leading to the shooting as you did to the jury;  that is to say as being an attempt by you to remonstrate with Shaun Finnigan as to his possession of a gun and what appeared to be drugs.  Of course, the validity of any conclusion to be drawn from this history which you gave to Mr Cummins depends entirely on whether your statements concerning finding drugs and the gun in Shaun Finnigan’s bedroom are accepted.  The Court is not prepared to accept this history even for sentencing purposes, although even if it did the sentencing process would be unaffected having regard to the jury’s verdict and the finding already referred to with respect to premeditation. 

1. Although Mr Cummin’s report provides some further information as to your background and some of the matters surrounding this crime, there is nothing in it which either aggravates or ameliorates your guilt as found by the jury.

1. There are a number of specific principles which the Court must take into account in fixing a sentence.  It must ensure that the sentence imposed punishes you to an extent and in manner which is just in all the circumstances.  It must be such as to deter you and other persons from committing offences of the same or a similar character.  It must, if possible, establish conditions within which your rehabilitation  may be facilitated.  It must manifest the denunciation by the Court of the type of conduct in which you engaged and it must, so far as possible, protect the community from the offender.

1. In your case, the sentencing principles most applicable are those of punishment, deterrence and denunciation.  The length of time which you will spend in gaol will either enable you to achieve a measure of rehabilitation such that you will be able to play some role in society when you are released, or it will not.  Whether it does or not will be entirely up to you.  So far as community protection is concerned, there is no evidence to suggest that you would be likely to re-offend, at least in the same way, again.  Statistically, with very few exceptions, murderers do not repeat their crimes.  There is no reason to believe that you would be in any way out of the ordinary in this respect.

1. Your counsel submitted that the gravity of your offending should be viewed as falling towards the lower end of a scale of seriousness for this crime.  To so categorise it would place it as being among those examples of murder where there has been a sudden loss of control in circumstances where the defence of provocation is not open.  Here, the jury’s verdict must be interpreted at least as a finding that you intended to inflict really serious injury on Shaun Finnigan when you shot him, even if that intention was formed only a short time before the act took place. 

1. The Crown Prosecutor submitted that the Court should view this offence as an assassination, that is to say an offence which was planned and carried out in the execution of that plan.  That submission would require acceptance of a much larger period of premeditation than the Court has found.  In the circumstances, you will be sentenced on the basis which I have indicated, namely that this event occurred with intent formed shortly prior to its occurrence.

1. The law requires, in the ordinary case, that a non-parole period be fixed in respect of any sentence of imprisonment of the length to be imposed upon you.  It is designed to encourage your rehabilitation and ameliorate the harshness of an otherwise very long sentence.  There will be a non-parole period fixed in this case which will enable you to serve the last part of your sentence in the community if the Parole Board decides that you should be released before the end of your sentence. 

1. It is the sentence of the Court that you be imprisoned for 21 years.  It is further ordered that you serve a minimum of 17 years before being eligible for parole.  It is declared that a period of 676 days should be reckoned as pre-sentence detention in respect of this sentence and it is ordered that that declaration and its effect be entered in the records of the Court.