Regina v Popovic

[2001] NSWSC 1118

CITATION:	Regina v Popovic [2001] NSWSC 1118
FILE NUMBER(S):	SC 70069/99
HEARING DATE(S):	13/6/00,14/6/00,15/6/00,19/6/00,20/6/00, 21/6/00, 22/6/00, 26/6/00, 27/6/00,28/6/00, 29/6/00,3/7/00,4/7/00,5/7/00,6/7/00,7/7/00,10/7/00,11/7/00,12/7/00,13/7/00,4/6/01,8/6/01,16/11/01
JUDGMENT DATE:	19 December 2001
PARTIES :	Regina v Zlatan Popovic
JUDGMENT OF:	O'Keefe J

COUNSEL :	Mr P V Conlon SC - Crown Mr P Zahra SC/Mr M C Ramage QC - Prisoner
SOLICITORS:	Director of Public Prosecutions - Crown Peter Ash & Associates - Prisoner
CATCHWORDS:	Manslaugther - Malicious woundings - Multiple convictions - Temporally related crimes - Totality - Provocation - Plea of guilty to manslaughter - Late contrition - Concurrency of sentences - Special circumstances - rehabilitation prospects
LEGISLATION CITED:	Crimes Act 1900, s 35 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v Storey (1997) 89 A Crim R 519 Regina v Isaacs (1997) 90 A Crim R 587 at 592 R v Troja NSWCCA 16 July 1991, unreported, per Kirby P R v Hill (1980-1981) 3 A Crim R 397
DECISION:	A fixed term of 3 years imprisonment on each count of malicious wounding; to be served concurrently. 10 years imprisonment on the count of manslaughter. Non parole period fixed at six years on this sentence.

IN THE SUPREME COURT
OF NEW SOUTH WALES
WOLLONGONG
CRIMINAL DIVISION

O’KEEFE J

19 December 2001

No: 70069/99

REGINA v ZLATAN POPOVIC
Decision on Sentence

HIS HONOUR : INTRODUCTION

1 Zlatan Popovic (the prisoner), who was born on 16 February 1972, was arrested on 26 February 1999 and charged with having murdered Vedran Ravnjak (Mr Ravnjak, or the deceased) at Wollongong on 22 February 1999. Charges of maliciously wounding nine people at Wollongong on 22 February, 1999 were also then laid against him. The death and injuries referred to in the charges occurred when the prisoner discharged two shots from a double barrel shot gun in Kiera Street, Wollongong, at a time when a large number of shoppers and other people were in the vicinity.

2 The prisoner pleaded not guilty to the charges of murder and malicious wounding in Wollongong on 13 June 2000. After a hearing before a jury, which extended until 13 July 2000, the prisoner was convicted on each of the malicious wounding charges but the jury was unable to agree on a verdict in respect of the charge of murder.

3 On 19 March 2001 the prisoner stood trial for a second time on the charge of murder. Unfortunately, because of intervening circumstances quite beyond the control of the prisoner, the second trial had to be aborted. The jury was discharged on 29 March 2001.

4 After the discharge of the second jury there were discussions between the legal representatives of the prisoner and the Crown and for the first time since the arrest of the prisoner the Crown indicated that it would be prepared to entertain a plea of guilty to a charge of manslaughter. This decision was based on evidence given at the second trial in relation to threats from Mr Ravnjak directed at the prisoner, his mother and young son, extending over a period commencing in January 1999.

5 The prisoner was brought before the court again on 1 June, 2001. The court was then advised that a plea of guilty to manslaughter would be entered by the prisoner and accepted by the Crown. On 4 June, 2001 the prisoner entered a plea of guilty to manslaughter based upon the partial defence of provocation. This was accepted by the Crown, and on 8 June 2001 the prisoner appeared for sentence in Wollongong. On that occasion, because of the desire of those advising the prisoner to obtain evidence in support of his plea, and to have the benefit of senior counsel representing him, the sentence hearing was, on application made on behalf of the prisoner, adjourned to a date to be fixed. Such hearing was not able to take place before 16 November, 2001.

THE ONUS AND STANDARD OF PROOF

6 The decision of the court on sentence is an important matter for a prisoner. It has been characterised as being in some situations no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities” (at 530)

7 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration eg, do they aggravate or mitigate the penalty to be imposed? It was said in Regina v Storey (supra) that:

“’Aggravating’ and ‘mitigating’ must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction.
The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”

and:

“We have spoken of disputed ’facts’ … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue” (supra at 531 – 532)

8 These statements accord with the law of New South Wales (Regina v Isaacs (1997) 90 A Crim R 587 at 592)

9 In determining the facts on which the sentence is to be imposed upon the prisoner in this case I have applied the law as set out above in the light of the verdict of the jury and the plea of guilty.

MANSLAUGHTER

10 In Regina vHill (1980-1981) 3 A Crim R 397 Street CJ pointed out the difficulty that is posed for a court in relation to the imposition of a sentence for the crime of manslaughter. He said:

“It has been said that manslaughter, perhaps beyond any other crime, is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence.” (supra at 402.)

11 The range of sentences which may be imposed on a conviction for manslaughter is greater than for virtually any other crime because of the high maximum sentence fixed by the statute on the one hand and the great variety of the circumstances that may be comprehended by the crime on the other. This range of circumstances against which the sentence must be imposed means that it is difficult to compare other cases, as it is to find any clear pattern from such cases. Each case must ultimately depend on its own facts. (Regina v Troja NSWCCA 16 July 1991, unreported, per Kirby P.)

12 When determining the appropriate sentence in a case of manslaughter there are competing considerations. On the one hand is the fact that there has been a felonious taking of human life. Such a taking of human life is recognised both by the legislature and the community as a serious crime. That recognition must be addressed in the sentence imposed. In that context it must be remembered that it is an important role of the law to act so as to protect human life by punishing those who take it feloniously. In the present case the deceased person, Mr Ravnjak, is not able to give his version of the events which lead up to and were involved in his actual shooting by the prisoner. In these circumstances, care must be taken not to concentrate solely, or mainly, on the subjective elements of the crime.

13 On the other hand are the factual context and circumstances of the crime, which may significantly reduce the blameworthiness of the prisoner. Provocation is relevant in this regard in relation to the killing. The difficulty which the Court must come to grips with is a balancing of the demands of the criminal justice system and community expectations in relation to protecting the lives of members of the community and punishing a person who has taken a life feloniously, against the subjective circumstances of the person responsible for the taking of the life in the particular case.

MALICIOUS WOUNDING

14 The verdict of the jury on 13 July 2000 means that the prisoner should be taken to have discharged the shot gun in question deliberately. Since the charges did not involve an intention to wound or inflict grievous bodily harm on the persons in question, it should be accepted that the jury’s verdict was based on recklessness.

15 No issue of provocation arose in the trial in relation to the nine charges of malicious wounding, but since the shooting of the nine people in question took place immediately before and as an accompaniment of the ultimate shooting of Mr Ravnjak, consideration needs to be given to those circumstances and to the principle of totality when determining the sentences for the offences.

16 Nevertheless, members of the community are entitled to go about their everyday affairs without concern that someone may shoot them, albeit as part of an intent to kill or inflict harm on some other person brought about in circumstances of provocation by such other person. The members of the community are entitled to be free from having their physical health and well-being interfered with in the course of the resolution of personal and private problems between two particular people.

17 The maximum penalty fixed by s.35 of the Crimes Act 1900 in respect of malicious wounding is imprisonment for seven years. Although this is considerably less than the maximum penalty provided for manslaughter and malicious wounding with intent to inflict grievous bodily harm, it is nonetheless a significant penalty and marks the nature of the offence as serious. Furthermore, the place and time of the commission of those offences in the present case mark them as objectively serious.

18 Thus, when determining the sentences for the nine charges on which the prisoner was convicted by the jury it would not, in my opinion, be appropriate to make the sentences on the nine counts of malicious wounding wholly concurrent with the sentence to be imposed in respect of the conviction for manslaughter. The sentences in respect of those offences should reflect their seriousness and the disapprobation of the Courts for crimes of such a nature.

STATUTORY MATTERS

19 Considerations of retribution, deterrence and rehabilitation are at the forefront in the sentencing of a person.

20 The Crimes (Sentencing Procedure) Act 1999 makes provision for the imposition of a lesser penalty than would otherwise have been imposed in the event that a prisoner has pleaded guilty (s.22). In determining the extent to which the penalty should be less the court is required to have regard to the time at which such plea has been entered. The earlier a plea of guilty is entered the more beneficial is it for the legal justice system and the more beneficial it should be for the prisoner. That is a relevant factor in relation to the charge of manslaughter. (Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383.)

21 In addition to the regard which may be had to a plea of guilty are factors such as, for example, the nature, extent, significance and usefulness of the assistance given by an offender to the authorities, the truthfulness, completeness and reliability of any information or evidence provided by the offender, the timeliness of any such assistance and the likelihood as to whether or not the offender will commit further offences after release (s.23(1), (2) (b) (c) (d) (e) (j). In addition, in imposing a sentence the court must take into account any time which the offender has been held in custody in relation to the particular offence (s.24(a)). Furthermore, the age and antecedents of the offender are relevant consideration. The effect of the offence on the victim and the family of the victim (s.23(2)(a)) must also be had regard to, in the manner defined by the decided cases.

FACTS

22 Mr Ravnjak had formed an association with an attractive young woman Maria Nacin. She broke up with him. He was unable to accept that their relationship was at an end and believed, wrongly as it happened, that the reason for the break up had been that the prisoner had formed an association with her. Whilst she had not formed such a relationship it emerged at the second trial that she had falsely informed Mr Ravnjak that she had in fact done so.

23 There was a history of confrontation between the prisoner and Mr Ravnjak and of harassment by Mr Ravnjak. On 5 January 1999 the prisoner and Mr Ravnjak were involved in an incident at a party in Wollongong to which Mr Ravnjak had not been invited, but at which he attended looking for Ms Nacin. The prisoner asked Mr Ravnjak to leave. At that time, Mr Ravnjak appeared very upset, and said to the prisoner “if I leave now, our friendship has ceased.” The deceased did leave at the urging of the prisoner. This encounter appears to mark the end of the friendship that had existed between the prisoner and Mr Ravnjak.

24 The prisoner claimed to have been shocked by this event, and to have been concerned for the safety of Ms Nacin. Thereafter, there were a number of telephone calls to the prisoner from Mr Ravnjak in which he sought to speak to Ms Nacin. She was not present when the phone calls took place, but in the course of one of the conversations, the prisoner says that Mr Ravnjak threatened him:

“You watch yourself. Be very wary, because I will be around and I can get you any time I want.”

25 When asked how he felt about that event and follow up phone calls from Mr Ravnjak, he said:

“I felt that he was a nuisance at that time.”

26 Between 10 and 18 January 1999 there was little contact between Mr Ravnjak and the prisoner. However on 18 January there was a confrontation between Mr Ravnjak and the prisoner at premises in Young Street, Wollongong. The prisoner was there with a number of his associates when Mr Ravnjak came to the premises looking distressed. There was a verbal exchange between the two and they went outside where there was a fight, just before which the prisoner claims, and I accept, Mr Ravnjak said: “I am going to kill you when we get outside.” This threat standing alone and at that time does not appear to have worried the prisoner because he said:

“I didn’t take him seriously that he was going to kill me.”

and:

“I was upset with him saying he was going to kill me. I did not think he – at that time – I did not think that was his intention.”

27 There was a fist fight in which the prisoner knocked Mr Ravnjak to the ground after having inflicted a number of blows on him. Whilst Mr Ravnjak was down, the prisoner kicked him a number of times in both the body and head. The prisoner claimed in his evidence that Mr Ravnjak produced a knife in the course of this fight. No knife was ever found. Having heard this evidence, seen the prisoner when he gave it, and assessed it with and against the other evidence given, I do not accept the prisoner’s evidence that Mr Ravnjak had a knife. The fight was a fist fight. It was convincingly won by the prisoner. Indeed, so convincing was his win that Mr Ravnjak spent some days in hospital as a result. During the time that he was in hospital he made no contact with the prisoner.

28 After Mr Ravnjak was released from hospital he telephoned the prisoner and again threatened him, saying that he would kill him. However, when contact was made around that time, the threat was to “drive (the prisoner) off a cliff” - a threat which the prisoner thought was “ridiculous”. However, when Mr Ravnjak persisted in his threatening telephone calls, the prisoner says:

“I was getting upset. I was believing the things he was saying to me. I started to think that he was capable of doing what he’s saying. I was getting worried – I was scared. I can’t deny it I was scared. I think I had him on my mind constantly, but not to the effect of what happened later.”

29 The next occasion on which the prisoner came in contact with Mr Ravnjak was on 25 or 26 January 1999 at a nightclub in Swan Street, Wollongong. Mr Ravnjak came in and stood beside the prisoner, who felt very uncomfortable as a consequence. He thought there was going to be another fight and claimed that he was scared that Mr Ravnjak might have been armed. Both the prisoner and Mr Ravnjak left the club and I accept that Mr Ravnjak pointed at him and made a motion across his throat indicating that he intended to slit the prisoner’s throat. When asked what his feelings were at that time he said he was “uncomfortable”, “had a lot of emotional feeling” but “just couldn’t believe, like I could not believe he wanted to go on with it”. However, I accept that by about this time the prisoner was beginning to think that Mr Ravnjak could be capable of carrying out his threats and may do so.

30 Thereafter, there were many, many phone calls from Mr Ravnjak to the prisoner. They were threatening. These appeared to have re-commenced in late January, possibly 29 or 30 January 1999. One of these conversations, which the prisoner appears to have received on about 5 February 1999 at the nightclub in Swan Street Wollongong, was very long, probably more than half an hour in duration. In it, Mr Ravnjak said he was going to slit the prisoner’s mother’s throat. On that occasion the prisoner apparently lost his self control, swore at Mr Ravnjak and told him that if he was going to kill his mother he, the prisoner, would kill Mr Ravnjak. It was during this conversation that the deceased made threats to kill the prisoner’s son by slitting his throat. The prisoner said that Mr Ravnjak told him:

“…he was going to slit me mother’s throat.”

and:

“He was going to slit my mother’s throat, he was going to kill both of them.”

and:

“That is nothing. I guarantee you that I will kill your mother. I went off at him then. I started swearing at him … I was telling him off. I was telling him ‘if this is the case I am going to kill you’.”

31 This was the first occasion that the prisoner had threatened Mr Ravnjak. He did so in the course of explaining to him the importance of his family to him and that “my family comes first to me”. It was in the course of this telephone conversation that the prisoner says that Mr Ravnjak first threatened that he was going to slit the throat of the prisoner’s son. The prisoner also said that in the course of this telephone conversation, Mr Ravnjak threatened on a number of occasions that he was going to kill both the mother and son of the prisoner.

32 In the course of his evidence the prisoner was asked what words of threat were actually used. The prisoner said:

“I guarantee you I am going to tie you down on a chair. I am going to slit your mother’s throat. I am going to stick my penis up your son’s arse. I am going to make sure you are watching this from the chair. I am going to kill them in front of you. I will chop them up into little pieces, and when they are chopped up I will torture you and slowly kill you.”

33 This graphic detail does not accord with the account of the conversation and threats given by the prisoner in his record of interview. In it, the prisoner said:

“Then he started saying he was going to slit me mum’s throat.”

and that Mr Ravnjak also said:

“I am going to kill your mum … before I kill you, I will kill your mum.”

In this interview the prisoner also said:

“And then he mentioned my son, and that’s the day I got out the gun.”

No suggestion was made in the record of interview that there were threats of raping the prisoner’s mother or his son. There was no suggestion of any sexual actions against either.

34 In the course of his evidence about this conversation, the prisoner questioned whether Mr Ravnjak was “playing games” or “only mucking around”. The extravagant nature of the threats as detailed in the prisoner’s evidence would no doubt suggest that they may be to shock and upset rather than being literal and serious. However, the prisoner said that Mr Ravnjak insisted that he was serious.

35 Although I am firmly of the opinion that there is some exaggeration on the part of the prisoner in his evidence as set out in paragraph 32 above, I am satisfied on the balance of probabilities that threats of a kind that were very upsetting, disturbing and quite worrying were made by Mr Ravnjak to the prisoner. They included threats to kill the prisoner, his mother and his son.

36 The prisoner’s reaction was that he was angry and scared and that he felt “like a cat, a cat on its stance and its spine just goes up. I felt like all my hairs just gone up into my head, my body.” I accept this evidence and further accept that by this time he had come to believe that Mr Ravnjak was capable of carrying out his threats.

37 The prisoner, who is supported by some phone records in this regard, said that the day after the particular threatening phone call to which I have just referred, he telephoned Mr Ravnjak’s father, identified himself and outlined to him the problems he had been having with his son. He sought the assistance of the father, asking him to prevail upon his son to stop making threats and causing trouble. He explained in particular that for a Montenegran, as the prisoner said he was, family was very important and that he would not abide threats being made against his family. Mr Ravnjak’s father said that he would see what he could do and would talk to his son. Notwithstanding this assurance the frequent threatening phone calls from Mr Ravnjak continued.

38 There was a further event which should be noted. It occurred a matter of days before the killing. It is an event that took place between the conversation of 5 February 1999 and the actual killing. That incident was that Mr Ravnjak went to the vicinity of the home of the prisoner’s mother and was seen by the prisoner in the street. The prisoner thereupon grabbed a .357 Smith & Weson magnum pistol which he had purchased, rushed out of the premises and chased Mr Ravnjak firing five shots at him. The prisoner said:

“He looked like he had something in his hand. It was a pistol, I guarantee.”

39 No mention of Mr Ravnjak having a pistol on this occasion was made to the police, to Dr Westmore, a psychiatrist called in the accused’s case in the first trial (who took a detailed history), or to Dr Skinner, a psychiatrist called by the Crown (who also took a detailed history). Furthermore, no pistol was found on or in the effects of Mr Ravnjak. I do not accept the evidence of the prisoner in this regard. Whilst I have no doubt that Mr Ravnjak came to the house of the prisoner’s mother, that he went away and that there was a gun fired by the prisoner, I equally have to doubt that the evidence about Mr Ravnjak having a gun is an afterthought on the part of the prisoner and not true.

40 Following the encounter referred to in paragraph 29 between the prisoner and Mr Ravnjak at the night club in Wollongong, at which the prisoner was working as a doorman, the prisoner went to Mt Kiera and retrieved a sawn off shotgun which he had purchased some 8 to 12 months before the shooting. Thereafter the prisoner kept this gun, together with and some ammunition which he had collected and would fit the shotgun, at close hand. In addition approximately a week before the actual shooting the prisoner purchased the .357 Smith and Weson magnum pistol to which reference was made in paragraph 38.

41 Although it was submitted on behalf of the prisoner that he was not a violent person, his record shows that in 1992 he had pleaded guilty to illegally possessing firearms and had been fined. He was thus aware that the possession of unlicensed firearms was against the law. Notwithstanding this, and quite unrelated to any threats made to him by Mr Ravnjak, he purchased the sawn-off shotgun on a beach in the Wollongong area for approximately $200 from a person whose name the prisoner claimed not to be able to recall. The weapon purchased was said to be old. However it was in working condition and at some stage was hidden by the prisoner in bushland at Mt Kiera well before any problems between the prisoner and Mr Ravnjak.

42 The .357 Smith and Weson pistol was purchased by the prisoner from an unidentified person. Whilst it was purchased after threats had been made by Mr Ravnjak, its purchase and possession were nonetheless unlawful.

43 From the foregoing it can been seen that the prisoner was no stranger to illegal firearms and had in fact on an occasion prior to the killing used a heavy weapon, which he had obtained illegally, against Mr Ravnjak in circumstances in which there was no verbal threat made at that time to the prisoner, his mother or son, although the deceased’s presence near the house of the prisoner’s mother could be, and was, taken by the prisoner as threatening to his mother. In this context it should be noted that the prisoner’s son was in the custody of his mother, the former wife of the prisoner. He lived with his mother at an unidentified address in the western suburbs of Sydney. There is no evidence to suggest that the deceased was aware of such address or that the prisoner believed that the deceased was aware of the address.

44 Between early February 1999 and the day before the killing the telephone calls by Mr Ravnjak to the prisoner or his place of abode continued. These were both numerous and threatening. According to the prisoner they were, in the main, confirmatory of the threats made on 5 February 1999. Furthermore, the evidence at the second trial tended to confirm that the deceased was obsessional about Ms Nacin and was a person who had, in the past, shown that he was capable of violence. There was thus a basis for the belief that I am satisfied the prisoner had by that time formed that Mr Ravnjak was capable of carrying out his threats and may well do so.

45 Having retrieved the sawn off shot gun the prisoner put it into a backpack. In his record of interview he said that from the time he retrieved it from Mt Kiera he carried it with him and that it was generally loaded. When asked whether he was carrying the shotgun on the morning of the shooting he said he was and that:

“It went everywhere with me until I found the person that I found.”

46 During the course of this interview the following was also said:

“Q. What was your intention if you had found Vedran Ravnjak on one of those occasions with your loaded firearm?
A. I would have shot him.
Q. And what was your intention when you shot him? Was it to wound him or was it to kill him?
A. I don’t know. First thought probably just wound him. But, that particular day I wanted to kill him.”

47 The prisoner had the shotgun with him in his motor vehicle on 22 February 1999. On that day it was not loaded. The prisoner and a male companion drove into Kiera Street, Wollongong sometime shortly after 3.30 pm. The prisoner parked his vehicle on the western side of Kiera Street, facing north. Both men alighted. However, when he got out of the car the prisoner “spotted Veg” on the western side of Kiera Street. It was then that the prisoner reached back into his vehicle and took out the back pack in which he had the shotgun and ammunition for it. He then crossed to the eastern side of Kiera Street. When he had reached the footpath on the eastern side of Kiera Street the prisoner called out to Mr Ravnjak, who was then walking diagonally from west to east across Kiera Street, the direction of the diagonal being to the north. This means that Mr Ravnjack’s back was half turned away from the prisoner who was by that time on the eastern side of Kiera Street. What was actually said between the two men is difficult to know. One of the witnesses to it, Mr Davies, was not able to remember what was actually said. Another, Mrs Townsend said that what was said was short, but she did not know what it was. However, after the first call by the prisoner something additional was said, but again what that was is far from clear from the evidence of either Mrs Townsend or Mr Davies or at all. However, what I accept beyond any doubt is that the verbal exchange between the prisoner and Mr Ravnjak was initiated by the prisoner and was quite short.

48 In his record of interview the prisoner said:

“I yelled out Veg. And he looked at me, walked over to the front of my car and walked towards me.
…
He was probably three metres away from me. I told him to stop there which he did, and I asked him if he said he would do what he said over the phone.
…
I asked him in Serbian because he talks Croatian, Serbian’s the same. I asked him in Serbian, the things he said over the phone and he, you know, ‘Are you gonna commit to them, going to do it?’ And he had a smile on his face and he went, ‘Yeah’, so, you know, if you translate it bloody oath you know.
…
And that’s when I snapped.
…
Darkness fell over my eyes. I took it out of my bag. He watched me load it. I loaded it, took it up; he didn’t really notice what it was and sort of came forward towards me … I swung the gun over. I hit him with the gun, that’s when the first shot fired …

49 The evidence makes it quite clear that Mr Ravnjak was not carrying anything in his hands. He had no bag with him and was wearing loose fitting clothing. In his evidence the prisoner claimed that he thought the loose clothing might possibly have concealed a knife. This evidence from the prisoner was proffered in support of a claim that he had killed Mr Ravnjak in self defence. It was not mentioned in the record of interview either at the police station or at the demonstration in which the prisoner took part at the scene on 27 February 1999. I do not accept his evidence in this regard. When considered in the light of the plea entered on behalf of the prisoner I am satisfied beyond any doubt that the killing of Mr Ravnjak by the prisoner did not occur in circumstances in which the prisoner was in any actual fear on the particular occasion for his own life or bodily well being. He was, however, provoked to do what he did largely by the threats made by the deceased concerning the prisoner’s mother and son. That he was provoked is the effect of the plea.

50 The two shots were fired in reasonably quick succession – the time separating them being only a matter of a few seconds. The first shot is the one that caused the injury to the nine bystanders, who were spread along the eastern side of Kiera Street at various distances up to some 50 metres. They included men, women and a child. Various injuries were inflicted on them. Fortunately for the prisoner none of the wounds inflicted on the bystanders resulted in serious and permanent disablement, although some of the wounds produced ongoing effects which, in at least one case, were debilitating.

51 The second shot was discharged when Mr Ravnjak was approximately a metre or so away from the prisoner. As a consequence of the close proximity at which the shot was fired the contents of the cartridge did not have any real opportunity to scatter. They, together with restraining wad of the cartridge, entered the abdomen of the deceased. The pellets spread out inside him inflicting injuries which were fatal within a relatively short time. The wad remained embedded, rather like a plug.

52 Thereafter, the prisoner and his companion slowly walked back across to the western side of Kiera Street and left the scene. The prisoner declined to identify his companion. A witness whose evidence I found quite compelling viewed the aftermath of the events from her place of employment on level three of a building which overlooked the scene. She described the way in which the prisoner and his companion crossed the road as “strolling across the road slowly”. She observed the prisoner place the gun in the bag which he had been carrying as they crossed the road, saw them both get into the car and drive away. Another witness observed the vehicle leave the scene, driven by the prisoner. He recorded its registration details and there was no suggestion from him or any other witness that the vehicle left the scene other than in a quiet and orderly manner. The prisoner remained at large for some four days during which time he gave an interview to the media concerning the events of the day. In it he expressed no remorse for the killing of Mr Ravnjak, although he did express remorse in respect of the shooting of the bystanders. He maintained this position at his first trial.

53 From the foregoing it can be seen that objectively the circumstances of the killing were serious.

54 However, the plea of guilty to manslaughter based on provocation means that it must be taken that the act causing death was committed as a result of a loss of self control on the part of the prisoner which was induced by the conduct of Mr Ravnjak towards the prisoner. These threats involved him, his mother and his son. The acceptance of the plea further involves the conclusion that the conduct of Mr Ravnjak was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm on Mr Ravnjak.

55 Having regard to the circumstances in which the killing occurred, the relative situations of the deceased and the prisoner on the day in question, such of the evidence given by the prisoner as I have said I accept, and the plea accepted by the Crown, I am satisfied beyond a reasonable doubt that the prisoner intended to kill Mr Ravnjak, but that such intention was a consequence of the provocation proffered by Mr Ravnjak over a period of time and finally on the day of the shooting.

56 The prisoner was taken into custody on 26 February 1999 and was interviewed by the police. He did not deny having fired the shot which caused the injuries to nine people in the vicinity nor did he deny having fired the shot which killed Mr Ravnjak. In effect his record of interview proffered defences to the various charges of self defence, accidental discharge of the weapon and, in relation to the killing, the additional defence of provocation. It is the last mentioned consideration which remains extant.

MATTERS RAISED IN MITIGATION

1. The Degree of Provocation

On behalf of the prisoner it was contended that the degree of provocation should be found to be great. I have already made a finding as to the affront and threats afforded to him by Mr Ravnjak especially on, but not limited to, 5 February 1999. The evidence also reveals that there was a very large number of telephone calls by Mr Ravnjak to the prisoner leading up to the day of the shooting. There may well have been as many as 30 to 50 such phone calls and undoubtedly most, if not all, were threatening. Given the acceptance of the plea I approach the question of sentence on the basis that these phone calls, in combination with the various confrontations and the events immediately preceding the shooting, had a cumulative effect upon the prisoner and were responsible for the prisoner losing his self control and committing the crime to which he pleaded guilty. The nature of the behaviour of Mr Ravnjak was such that although the prisoner did not take the threats seriously for some time, persistence and repetition and the abusive character of Mr Ravnjak had their effect and gave rise to the relevant loss of self control.

57 In my opinion the threats were seen by the prisoner as real and because they involved family were significant to him, but the description “great” goes beyond the description I would apply.

2. The Value of the Plea of Guilty

58 It was further submitted that the proffering of the plea of guilty should be seen against the background of the history of the two trials in which the prisoner had been involved. It is appropriate to take into account in favour of the prisoner the fact that he had pleaded guilty to the charge of manslaughter when he did and that such plea was accepted by the Crown in satisfaction of the indictment. I do so. No question of the benefit of a plea arises in respect of the nine malicious woundings. They were convictions following a trial.

3. Contrition

59 It was also submitted on behalf of the prisoner that the plea of guilty entered on his behalf was itself evidence of contrition and that he is now generally regretful that he has taken another persons life and injured a substantial number of innocent bystanders.

60 Shortly after the prisoner left the scene of the crimes and before he was taken into custody, he engaged in a media interview. In that interview he expressed his regret that he had injured the people who were the victims of his first shot however, he expressed no regret in respect of his killing of Mr Ravnjak. As I have said, this stance was maintained at the first trial. The second trial was aborted before the prisoner had had an opportunity to give evidence. However, the fact is that no contrition was expressed by the prisoner until later than the second trial. It was expressed by the prisoner when he gave evidence at the sentence hearing. The prisoner then advanced a number of reasons for his initial stance and for his later change of heart. They were that he was initially depressed and confused and trying not to think of what he had done. Furthermore, he was in a state in which he was telling himself that he had done the right thing. During his time in custody he says that he has settled down, feels more relaxed and now recognises that he had wrongfully taken a life. That recognition has led to an expression of contrition both before the sentence hearing as well as at such hearing. On the balance of probabilities, I am prepared to accept it as genuine, albeit belated.

61 Contrition is a factor to be taken into account in favour of the plaintiff and I so do so in relation to all matters.

4. Lack of Premeditation

62 It was then submitted on behalf of the prisoner that there was no premeditation, that the killing rose out of a chance encounter with Mr Ravnjak and was a consequence of the verbal exchange which occurred immediately before the shooting.

63 In my opinion this submission does not accord with the sequence of events and facts which I have outlined above. The shotgun was not obtained for self protection. It had been purchased a long time before the shooting and before any threats had been made by the deceased. It was retrieved by the prisoner well before the killing and carried by him, mainly in a loaded condition, so that he could use it on Mr Ravnjak when he found him. His evidence (at paras 45 and 46) does not fit with this submission. By his own admission the prisoner’s intent was to kill Mr Ravnjak. The plea of guilty on the basis of provocation involves an acceptance of the fact that there was either an intent to kill or inflict grievous bodily harm at the time of the shooting, albeit as a result of the provocation. I have already held that I am satisfied beyond reasonable doubt that the prisoner’s intent was to kill Mr Ravnjak and had been so prior to the day of the killing.

64 I am satisfied beyond reasonable doubt that as a result of the threats proffered by the deceased up to and including the day of the killing, the prisoner intended on that day to discharge the shotgun at Mr Ravnjak and had been so intending prior to that day.

65 I do not accept that this ground of mitigation operates in the present case.

5. Co-operation With Police

66 The prisoner decamped from the scene of his crimes. He remained at large for some days. His apprehension was dramatic. It did not involve his going to a police station and formally giving himself up. Although he confessed to the shootings and showed the police where the weapon was I do not think that it is appropriate to characterise his behaviour as one of cooperation with the authorities. Throughout his record of interview he maintained that he was protecting himself (ie self defence), that the discharge of the gun on both occasions was not intentional (ie accident) and that in any event he acted under provocation. He declined to name a most material witness, the person who accompanied him prior to, at the time of, and subsequent to, the shooting. I should hasten to say that under our system of law an accused person is entitled to remain silent and to defend himself and no additional penalty should be, or in this case is, imposed because such rights were exercised. However, this is quite a different proposition from the proposition that in the instant case an otherwise appropriate penalty should be reduced because of co-operation with the authorities.

67 In the circumstances of the present case I do not think that this ground of mitigation is applicable.

6. Lack of Significant Criminal Record

68 The prisoner has a conviction in 1998 for assault against a female acquaintance. This does not appear to have been very serious since it was dealt with by the imposition of a fine of $300. I do not think that this conviction should be taken into account in any way which is adverse to the prisoner and I do not do so.

69 I have already averted to firearms offences on the part of the prisoner in 1992. These are not offences which can be treated as of no significance. Furthermore, the purchase by the prisoner of the weapon used in the killing and of the .357 Smith and Weson magnum cannot be ignored. Nor can the statement in the pre-sentence report that the prisoner is an associate of the criminal classes.

70 Whilst it would not be appropriate to increase an otherwise appropriate penalty as a consequence of the prior record of the prisoner, I am of the opinion that the ground of mitigation presently under consideration is not appropriate to take into consideration in reduction of penalty and I do not do so.

7. Generally in Employment and Prospects of Rehabilitation

71 From observation during the course of the first trial and during the sentence hearing I formed the view that the prisoner is an intelligent man. Should he put his mind to it he has the capacity to undertake a reasonably extensive range of employment. Prior to being taken into custody he was able to obtain various types of employment, although for a period prior to the commission of the present offences he had been working only two days a week as a doorman at the Wollongong nightclub previously referred to.

72 The indications from the prison authorities are that the prisoner has adapted well to prison life, that he has been cooperative and indeed of positive assistance to the prison authorities. He has expressed his wish to undertake appropriate vocational courses whilst in prison. Given his intelligence and cooperative attitude I think it is likely that he will be able to fit himself for gainful employment, whether in the businesses presently being conducted by his mother or otherwise. In determining the sentence to be imposed upon the prisoner I assess his prospects of rehabilitation as good and the likelihood of his committing offences of the kind for which he has been convicted and to which he has pleaded guilty as low.

8 Concurrency of Sentences

73 It has been submitted on behalf of the prisoner that the sentences to be imposed in respect of the convictions for malicious wounding should be wholly concurrent with the sentence to be imposed in respect of the conviction for manslaughter. I do not agree. I have already expressed the view that the combination of nine malicious woundings together with the manslaughter, even given that they are closely related in time and in origin, should nonetheless bear a greater blameworthiness than a conviction for the manslaughter alone. It would be inappropriate in accordance with community standards to ignore the nine malicious woundings, even taking into account the circumstances of the present case.

74 Even given the application of the principle of totality I am of opinion that regard should be had to the fact that nine people were injured as a consequence of the actions of the prisoner. However, recognition of the fact that those offences were closely related to and intertwined with the manslaughter is also appropriate.

75 In overview, the conjunction of crimes of which the prisoner has been found guilty or to which he has pleaded guilty call for the imposition of a fairly severe sentence. A total sentence in the order of 12 years imprisonment is called for. In these circumstances, I am of opinion that the correct approach is to impose a sentence in respect of each of the malicious woundings and then to make the sentence imposed in respect of manslaughter concurrent to some extent with the sentences imposed for the malicious woundings.

76 Given the number of the offence of malicious wounding, the place and time at which those offences were committed and taking into account such of the considerations in mitigation as are appropriate to these offences, I am of opinion that a fixed term of three years imprisonment should be imposed in respect of each of the offences of malicious wounding and that each of such sentences should be concurrent.

77 In fixing the sentence for manslaughter I have had regard to the facts as set out above, to the plea and other matters in mitigation that have been advanced on behalf of the prisoner and are referred to above. Having done so I am of the opinion that in respect to the charge of manslaughter it would be appropriate to impose a sentence of 10 years imprisonment but to adjust the date of commencement of that sentence.

78 In my opinion it is also appropriate to adjust the statutory ratio of the non-parole period for this offence by virtue of the special circumstances arising out of the rehabilitation prospects of the prisoner and the accumulations of sentence.

SENTENCE

79 Zlatan Popovic, you have been found guilty by a jury of your peers of nine charges of malicious wounding at Wollongong on 22 February 1999. I sentence you to a fixed term of imprisonment of 3 years in respect of each of those charges. The sentences are to be concurrent, each is to date from the day on which you were taken into custody namely, 26 February 1999 and to expire on 25 February 2002.

80 You have also pleaded guilty to a charge of manslaughter. In respect of the manslaughter of Vedran Ravnjak at Wollongong on 22 February 1999, I sentence you to imprisonment for 10 years, such sentence to commence on 26 February 2001 and to expire on 25 February 2011.

81 In view of the special circumstances that exist in this case I fix the non-parole period in respect of the sentence for the offence of manslaughter to conclude on 25 February, 2007. You will become eligible for parole on 26 February, 2007.

***********

Last Modified: 12/21/2001