Crown v Accused

1. Emil Petrov, a jury found you guilty of the murder of your estranged wife Cindy Crossthwaite on 20 June 2007.
2. The maximum penalty for murder is life imprisonment.[1]

1. On the morning of 20 June 2007, the deceased took two of her three children, namely, Jesmine, aged 9, and Nicholas, aged 8, to Coburn Primary School in Melton South. She never returned to pick them up.
2. A close friend of the deceased, Kerryn Wilkie, texted her at 9:10am to see how the deceased's third child Jonas, aged 13 months, had got on at the doctors the previous day but she received no reply. She went round to the deceased's home at approximately 11:20am. The deceased's car was in the driveway. She knocked on the door and telephoned the deceased but, again, received no response. Ms Wilkie could hear the television blaring. She left.
3. Ms Wilkie returned to the deceased's home at approximately 1:57pm. Everything was as before. She could not raise the deceased.
4. At 3:15pm, Ms Wilkie went to Coburg Primary School to pick up her own daughter. She discovered that Jesmine was still waiting to be picked up by her mother. Nicholas had gone to a friend's house after school. Ms Wilkie took Jesmine home, but things were as before. They could not raise the deceased or get in. They left. Ms Wilkie tried to get in contact with the deceased's father, Philip Crossthwaite.
5. At approximately 4pm, the deceased's father attended at his daughter's home and let himself in. On entering via the front door, he found his daughter lying on her back on the floor of the loungeroom, the upper part of her body covered by a blanket. He felt for a pulse but there was none. He found Jonas on the bed in the master bedroom. He called 000.
6. Police and crime scene experts attended.
7. Max Jones, a blood stain pattern analyst, gave evidence at your trial that it was likely that the deceased was first assaulted and that, after she went to the ground, already bloodied, she was shot in the head at close range.
8. The pathologist, Dr Lynch, who conducted the autopsy gave evidence that the cause of death was a compressive neck injury and a gunshot wound to the head. He opined that there were at least 12 applications of force to account for the injuries he observed to the deceased's head, neck, shoulders, chest and arms. He said the bullet penetrated near the right eye, close to the nose.
9. You were arrested and interviewed by police, the interview commencing at approximately 1am on 21 June 2007. You denied any involvement in the murder. You said that on the morning of the 20 June 2007, you were not sure about what time you got up but that you had just watched some DVDs. You said that around about 10:30 to 11am, you went into work - SunAce Australia in Brooklyn - to tell them you would be back at work the next day, having taken a few days off work because of depression. You were released without charge.
10. Many years passed.
11. You were re-arrested in 2019 and charged with the murder, after a witness informed police that a former friend of yours, Brian O'Shea, had sourced a gun for you around the time of the murder.
12. Brian O'Shea was also arrested and charged with the murder on a complicity basis. He was granted a separate trial. The jury in that trial was ultimately discharged without verdict. The prosecution of O'Shea for murder was discontinued after O'Shea agreed to give evidence against you.
13. You were first tried for the murder in early 2024. O'Shea did not give evidence at your first trial where the jury were unable to agree on a verdict. Your retrial was held in November 2024. O'Shea was a witness for the prosecution. He told the jury that you were furious at the deceased in relation to the property dispute that you were having with her in the Family Court and for the fact that your father was under investigation for having allegedly sexually assaulted Jesmine and Nicholas, your children. You believed that the deceased had put the children up to making false allegations against your father. O'Shea told the jury about sourcing a gun for you approximately eight months before the murder. He said that you told him you wanted the gun for family protection after a break-in at your parents' home in Footscray where you were living. He said that about six to eight weeks before the murder, you told him you were going to kill the deceased and showed him a wig, a beanie and a jacket in the boot of your car which you planned to wear for disguise. You then made out that you were just kidding. He said that sometime after the murder, you told him that you and your father had disposed of the gun and the disguise in a hole you dug beside a freeway near Lara or Little River.
14. Another significant difference between your first and second trials was the way the prosecution put its case. At the first trial, the prosecution argued exclusively that you were the perpetrator, that is, the one who actually shot the deceased. At your retrial, the prosecution argued that you were either the perpetrator (its primary case) or a party to a joint criminal enterprise with an unknown perpetrator to whom you supplied the gun used to murder the deceased.
15. This switch in tactics was likely due to a couple of difficulties with the prosecution's primary case. Two residents near the deceased's home had observed a man casing houses, including the deceased's, on the afternoon of 19 June and morning of 20 June 2007. The prosecution argued that that man was the killer, but the appearance of the man, especially his build, was more dissimilar to you than it was similar. The other difficulty was the evidence of a witness who claimed she saw you on the morning of 20 June 2007 near shops not far from the deceased's home. That witness's evidence was implausible and inconsistent with objective evidence in several respects, none of which it is necessary to recount here.[2] Suffice to say that I am not satisfied beyond reasonable doubt that you were the perpetrator, which is not to gainsay the jury's verdict. Consistent with their verdict, I will sentence you on the basis that you were party to a joint criminal enterprise with an unknown perpetrator to murder the deceased and that you participated in that joint criminal enterprise by providing the gun.
16. I have made passing reference to the fact that you were involved in a property dispute with the deceased at the time of her murder. Those proceedings were before the Family Court. They related to several properties which you claimed were wholly and beneficially owned by your parents, even though you were the registered owner or part owner. You claimed that these properties should be excluded from the marital pool of properties. In late May 2007, the Family Court adjourned the property proceedings for you and your parents to file and serve affidavit material by 15 June 2007 in support of your claim. You were also ordered to pay by that date the deceased's costs of the adjournment. The matter was relisted for final determination on 6 July 2007. No affidavit material was filed by you and your parents in support of your claim as at the date of the deceased's murder, nor had her costs been paid.
17. I have also made a passing reference to your anger towards the deceased over the child molestation allegations against your father. Those allegations, which were made to police by Jesmine in October 2005 and by Nicholas in April 2006, were still under investigation at the time of the deceased's murder. In your statement of 27 March 2007 you stated:

I believe the children have made these accusations because of their mother Cindy. I now think it's to do with money and property so that she can sue me and my father. Our divorce is complicated and messy. A couple of properties that are in my mother and father's name have been put in my name as well. Cindy is now trying to claim those properties in the settlement. I believe that by the accusations against my father she thinks she will be able to successfully access some of this property and money.

18. It was not until after the deceased's murder that a letter was sent by police to your father advising of the non-authorisation of the brief against him.[3]
19. The murder in June 2007 occurred in the context of you menacing or attempting to menace the deceased over an extended period of time. I note that Kerryn Wilkie told the jury that prior to you and the deceased separating in 2005, the deceased told Ms Wilkie that you had threatened to kill the deceased if she left you.
20. I also note that Jesmine told the jury that on 13 December 2005, she answered her mother's phone without speaking and heard you say "I'll get you next time". She made a note of what you said and gave it to her mother. The note became an exhibit at your trial. Jesmine also testified that something similar happened a few weeks later. On that occasion, she again answered her mother's phone without speaking and heard you say "You can't outsmart me".
21. I accept the evidence of Ms Wilkie and Jesmine about these matters.

1. Victim impact statements were made by the deceased's father, her three children, Jonas' father and two close friends.
2. With the same dignity that he displayed as a witness during your trial, Phillip Crossthwaite recalled at your plea hearing the horror of finding his slain daughter on 20 June 2007 and the massive emotional and financial toll that her murder has taken on him and his family.
3. Jesmine and Nicholas bravely spoke of the enormous loss and suffering they have endured as a consequence of your actions. They have effectively lost both their parents. You put them in an invidious position.
4. Jonas too, the child of the deceased and Daniel Hinds, has also suffered. His mother was taken from him when he was so young that he does not even have memories of her to treasure, something that grieves not only him but his father.
5. Your offence has also devastated the deceased's two close friends, Kerryn Wilkie and Julie Burford.

1. The prosecution submitted that your offending falls into the worst category of murders and requires the maximum sentence of life imprisonment. The prosecution's written submissions to this effect assumed that you were the perpetrator and highlighted the violence inflicted on the deceased prior to the fatal shot. When I indicated in discussion that I was not satisfied beyond reasonable doubt that you were the perpetrator, the prosecution focused on the fact that the murder occurred in the context of Family Court proceedings. As the prosecution submitted to the jury, those proceedings were reaching a crescendo at the time of the murder and the deceased was likely to emerge as the victor in the Family Court.
2. The prosecution also relied on Basham[4] as a comparable worst category case. It was the only case in its table of comparable cases that resulted in a sentence of life imprisonment. Basham was the perpetrator of his estranged wife's murder by hanging (which followed a savage beating); he then tried to make it look like a suicide. The murder occurred in the context of criminal proceedings against Basham for having raped his wife. She was to give evidence against him at a contested committal hearing one week later. In attending his estranged wife's home, Basham was in breach of his bail and an intervention order.

1. In disputing that yours was a worst case murder, your counsel relied on what was said by the High Court in R v Kilic[5] about having regard to both the circumstances of the offence and of the offender in determining whether an offence falls into that category. Your counsel highlighted that you have no prior or subsequent convictions. He also submitted that your prospects of rehabilitation are very good. The prosecution accepted that you have good prospects of rehabilitation.

1. Turning now to my analysis, there is no dispute that yours is an upper range example of the offence of murder. At the very least, you were a party to the premeditated execution of your estranged wife, and the mother of your own two young children, in her own home. If you were not the perpetrator, you participated in the joint criminal enterprise by providing the murder weapon, no small matter. The gravity of what you did is aggravated by the threats you made to the deceased before and after your separation in 2005 and by the fact that you and the deceased were involved in a contemporaneous Family Court dispute which was not playing out how you might have liked. But after careful consideration, I am not persuaded that your case falls into the worst category of murders. It is a reasonable possibility that you were not the perpetrator and did not agree to or foresee the infliction of the additional violence that was visited upon the deceased before she was shot in the head. Further, your lack of criminal antecedents assumes greater significance because of the passage of approximately 12 years between the murder and your arrest and charge. Neither of these considerations were applicable in Basham, the only comparable case referred to by the prosecution where the murder fell into the worst case category.

1. Turning to your personal circumstances, you were born in Serbia on 4 January 1964, making you 43 years old at the time of the offence and 61 now. You are the only child of your parents. Your father is deceased. You mother is now aged 85 and is unwell.
2. Your family moved to Australia in 1971.
3. You left school part way through Form 4.
4. You did a year of compulsory national service in the Yugoslav army.
5. You worked at SunAce in Brooklyn for many years as a maintenance fitter. You were a good worker.
6. You met the deceased in 1989 and married in 1996, having two children, Jesmine and Nicholas.
7. You drank excessively and this became a bone of contention in your marriage.
8. The deceased left you in 2005, taking the children. She fell pregnant to Daniel Hinds and Jonas was born in May 2006.
9. Following the separation you lived with your parents at 33 Creswick Street, Footscray. After your father died in 2017, you became your mother's primary carer.
10. You married your current wife Sutatta Maneekeang in early 2020, having known her for about 12 years. The two of you have a son who is aged four. Your wife is a Thai national who is in Australia on a bridging visa. She is looking after your mother and your son.

1. As mentioned, you have no prior or subsequent convictions.

1. Character references were provided by:
   • your wife Sutatta;
   • a co-worker and friend Darryl Jones; and
   • another co-worker and friend Wally Hearder.
2. Your wife says you are a good husband and father and that you have been your elderly mother's primary carer for some time. She says your son is missing you greatly. I take into account that separation from your young son will make prison additionally burdensome for you.
3. Your co-workers described you as a good worker and friend.

1. You were assessed by forensic psychologist, Patrick Newton.
2. He diagnosed you with an alcohol-use disorder of moderate to severe intensity[6] and persistent insomnia disorder. Mr Newton opined that:

[49(18)] A review of factors which have demonstrated an empirical correlation with the risk of violent recidivism suggests that Mr Petrov is at a low-moderate risk of engaging in further violent crime. The main risk factors in his case reflect his substance-related problems, poor capacity to manage stress and unstable interpersonal relationships... > > ... > > [61] This level of risk will likely decrease as he ages, with further reductions being possible if he were able to complete a comprehensive violence-prevention program.

1. Given that you have no prior or subsequent convictions, and taking into account your age, I accept your counsel's submission that you have very good prospects of rehabilitation, even though you continue to deny responsibility for the deceased's murder. Accordingly, I will moderate the weight given to specific deterrence and protection of the community in sentencing you.

1. There has been considerable delay between your arrest in 2019 and the finalisation of the proceedings against you. During that protracted period you have been in a state of suspense and anxiety. Patrick Newton stated in his psychological report:

[25] Mr Petrov told me that he has found the extended nature of this prosecution difficult. He said that his mood has been "pretty bad since 2019". > > ... > > [49(8)] Mr Petrov reported that he has experienced noteworthy reactive distress since his arrest on these matters in 2019.

2. Consistent with the Court of Appeal case of Mackie,[7] the delay justifies a reduction in your sentence, but I note that there is no evidence that you were in a state of anxiety and distress prior to your arrest in 2019.

1. In relation to comparable sentencing cases, the parties rightly agreed that, as the offending occurred in 2007, I should have regard to sentencing practices around that time as well as current sentencing practices.
2. With respect to comparable cases that reflect current sentencing practices (namely, Basham,[8] Kamalasanan,[9] Kurera[10] and Stone[11]) the head sentences ranged from 37 years' imprisonment to life imprisonment. The non-parole periods ranged from 18 to 30 years. As mentioned, the only one of these offenders to receive a head sentence of life imprisonment was Basham.
3. But with respect to older comparable cases referred to by the parties, (namely, Aleluia,[12] Azizi,[13] Baxter,[14] Boyle,[15] Browning,[16] Charlton,[17] Gajanovic,[18] Hettiarachchi,[19] Karageorges,[20] Meade,[21] Paulino[22] and Yasso[23]) the sentences were significantly lower: head sentences ranged from 18 years' to 30 years' imprisonment and the non-parole periods ranged from 14 years to 25 years. That is a significant consideration in working out an appropriate sentence to impose on you for a murder committed in 2007. As the Court of Appeal stated in the case of Stalio:

"the concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence".[24]

1. Nevertheless, in sentencing you today for an upper range example of murder, the sentencing purposes of just punishment, denunciation and general deterrence must loom large. Please stand.
2. On the charge of murder, I sentence you to 26 years' imprisonment.
3. I fix a non-parole period of 20 years.
4. I declare that you have served 225 days by way of presentence detention.
5. I also make the disposal order sought by the prosecution.

[1] The standard sentence scheme for murder, which was introduced in 2017, does not apply: s 165 A(2) of the Sentencing Act 1991 (Vic).

[2] I simply refer to my unreliable witness direction in my charge to your second jury.

[4] R v Basham [2023] VSC 79.

[5] R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 265 [18].

[6] In early remission, in a controlled environment, assuming no alcohol assumption in custody.

[7] Mackie v The Queen [2022] VSCA 28.

[8] R v Basham [2023] VSC 79. Head Sentence (HS) Life imprisonment, Non-parole period (NPP) 30 years.

[9] Kamalasanan v R; Sam v R [2019] VSCA 180. Re K, HS 24 years, NPP 20 years. Re S, HS 22 years, NPP 18 years. Deceased (husband of S) murdered in 2015.

[10] DPP v Kurera [2024] VSC 809. HS 36 years, NPP 30 years. Deceased murdered in 2022.

[11] Stone v R [2021] VSCA 186. HS 34 years, NPP 28 years. Deceased murdered in 2016.

[12] DPP v Aleluia [2017] VSC 204. HS 23 years, NPP 18 years. Deceased murdered in 2015.

[13] DPP v Azizi [2013] VSC 16. HS 20 years, NPP 16 years. Deceased murdered in 2007.

[14] R v Baxter [2009] VSC 180. HS 20 years, NPP 16 years. Deceased murdered in 2006.

[15] R v Boyle [2009] VSCA 289; (2009) 26 VR 219. HS 21 years, NPP 17 years. Deceased murdered in 1983. Remains discovered in 2006.

[16] DPP v Browning [2016] VSCA 153. HS 21 years, NPP 16 years. Deceased murdered in 2013.

[17] DPP v Charlton (No 2) [2023] VSC 707. HS 24 years, NPP 19 years. Deceased murdered in 2007.

[18] R v Gojanovic (No 2) [2007] VSCA 153. HS 20 years, NPP 15 years. Deceased murdered in 2001.

[19] R v Hettiarachchi [2009] VSCA 270. Total Effective Sentence 27 years, NPP 22 years. Double murder of parents-in-law in 2006.

[20] R v Karageorges [2006] VSCA 49. HS 18 years, NPP 14 years. Deceased murdered in 2003.

[21] Meade v R [2015] VSCA 171. HS 23 years, NPP 19 years. Deceased murdered in 2011.

[22] Paulino v R [2018] VSCA 306. HS 30 years, NPP 25 years. Deceased murdered in 2013.

[23] R v Yasso [2007] VSCA 306. HS 20 years, NPP 15 years. Deceased murdered in 2001.

[24] Stalio v The Queen [2012] VSCA 120; (2012) 46 VR 426, 432 [9 (C)].