Delich v The Queen [2014] VSCA 66

1 On 29 January 2013, the applicant, Denis Delich (now aged 62) pleaded guilty to one charge of murder before Coghlan JA. Following a plea before Lasry J on 27 March and 15 May 2013, the applicant was sentenced on 14 June 2013 to 20 years' imprisonment with a non-parole period of 16 years. The applicant seeks leave to appeal his sentence.

2 The deceased (Almasa Locic) was the applicant's wife for 23 years before a separation in 1997 and a divorce in 2002. The applicant and the deceased had two sons, Eddie and Dean. It is the breakdown of the marriage that provides the background to the offending.

3 In 1984, the applicant and the deceased purchased a property at 32 Bertrand Avenue, Mulgrave ('the family home'). These were the premises near where the killing of the deceased took place.

4 Following the divorce in 2002, the applicant purchased the deceased's share in the family home. The deceased moved to a unit in Noble Park North. However, the applicant believed that the family home was too big for him so the deceased sold her unit to her son, Dean, and purchased the family home back from the applicant. The deceased and Eddie moved into the family home and the applicant moved into Eddie's home in Endeavour Hills.

5 In early 2009, conflict arose between the applicant and his sons in respect of money that the applicant believed his sons owed him. This conflict became violent to a degree. Tensions between the applicant and his sons continued and in February 2009 the applicant telephoned the deceased from outside her home and demanded that she send Eddie and Dean outside. The applicant stated to the deceased that she should not come outside because he did not want her to see what was going to happen. Ultimately, police were called and the applicant was found sitting outside the deceased's home with a loaded handgun. As a result, on 1 May 2009 the applicant was placed on a 12 month community based order in relation to making a threat to kill the deceased and her sons. The applicant spent nine weeks in remand prior to being sentenced. An intervention order was also obtained by the police on behalf of the deceased and her two sons. The applicant abided by that order.

6 In October 2010, a further intervention order was obtained by the deceased against the applicant by consent. The order was to last until November 2011. In mid-September 2011, the applicant followed the deceased and made threats to her family. As a result, the deceased moved out of the family home and stayed with her sons and her sister in Dandenong North. On 26 October 2011, the intervention order was extended until 21 November 2011. The deceased later returned to live in the family home.

7 On 1 November 2011, the deceased left the family home and went to visit her sister in Dandenong. Later that morning the applicant drove to 29 Bertrand Avenue, Mulgrave and parked his car. That was approximately 50 metres from the family home. The applicant carried with him a loaded semi-automatic handgun which he had purchased on 31 December 2010 in Adelaide.

8 The applicant climbed over the rear fence to enter the family home, hid behind the garage and waited for the deceased to return home. Around midday, the deceased returned home. The applicant confronted her when she drove into the driveway and the deceased screamed and ran. The applicant chased the deceased and shot her in the back outside 30 Bertrand Avenue, Mulgrave. The deceased fell. The applicant then stood over the deceased and shot her at close range. The deceased died at the scene.

9 The applicant handed himself in to the police at Dandenong Police Station a short time later. When interviewed, the applicant stated that he had been thinking about the possibility of such an incident for about six months.

10 The applicant submitted that there were a number of mitigating factors. To begin with he had pleaded guilty, saving the time and expense of a trial. He argued that he was entitled to a full discount for his acceptance of responsibility and his plea of guilty.

11 The applicant next submitted that he had cooperated with police immediately after the offending. That, viewed together with his acceptance of responsibility and his plea of guilty, was submitted to be evidence of his genuine remorse for the offending.

12 The applicant pointed to the fact that he had lost everything that was important in his life in the years leading up to the offending, including his marriage and his business. He was financially destitute and his mental health deteriorated. His relationship with his sons had broken down.

13 The applicant said that he had been through a series of traumatic and troubling major life events in the years leading up to the offending. They included not receiving any payment for his share in the family home; disputes with Eddie and Dean over money he had given them; being told by the deceased that he was not the biological father of Eddie and Dean; and observing the deceased, whilst she was in a drunken state, having intercourse with a male whilst the applicant and the deceased were in the early stages of their relationship.

14 The applicant suffered from chronic depression and began receiving treatment for that condition in 2007, continuing up until the time of the offending. In respect of his chronic depression, the judge was referred to letters from the applicant's treating doctor, Dr Francis Nguyen and his psychiatrist, Dr L Fernando. His Honour was also directed to a report of Forensic Psychologist Dr Aaron Cunningham dated 26 March 2013 and two reports of Consultant Psychiatrist Dr Lester Walton dated 16 April 2013 and 26 November 2012.

15 It was conceded that, whilst the applicant did not engage all limbs of R v Verdins,[1] his condition nevertheless was still relevant to issues of moral culpability and rendering custody unusually onerous.

16 It was also said that the applicant's condition should be taken into account in that imprisonment would be more burdensome for the applicant as a result of his condition and his condition was likely to be aggravated by imprisonment.

17 The offending was said to be out of character and the applicant was a low risk of re-offending. He has realistic prospects of rehabilitation.

18 The applicant was 61 years of age and specific deterrence was of little significance given the applicant's low risk of reoffending. That was based on the fact that his wife was deceased, he would be old upon release and his prior convictions were of little significance.

19 The prosecution submitted that the applicant harboured hatred for the deceased and his motive for the murder of the deceased was revenge. The applicant was not genuinely remorseful and that was highlighted by his interview with police.

20 The applicant had relevant prior offences that included making a threat to kill and possessing an unregistered handgun.

21 There was no basis for the the assertion that one of the stressors in the applicant's life was seeing the deceased (his then wife) having intercourse with another male. Further, given that this allegedly took place in 1997, it was not a realistic stressor for the applicant that went towards explaining his behaviour.

22 The judge took into account the Victim Impact Statements of the applicant's sons, Eddie and Dean; Alya Delich, the deceased's daughter-in-law and wife of Dean; and Katya Degregorio, wife of Eddie.[2]

23 His Honour stated that the murder of the deceased was planned, pre-meditated, callous and unprovoked.[3] Senior Counsel for the applicant took no issue with this characterisation of the offence.

24 The judge noted that the applicant pleaded guilty, which was a demonstration of the applicant's willingness to accept responsibility for his actions. The applicant's plea of guilty avoided a trial and spared the families involved from trauma they would otherwise have had to endure.[4] The judge considered, however, that the applicant's willingness to accept responsibility did not represent any form of remorse, as indicated by the applicant's statements to police in his police interview.[5] It could not be accepted that the applicant was sorry.[6]

25 His Honour also noted that the applicant was diagnosed as suffering from dysthymia, and anxiety and depressive disorders in the years leading up to the offending as well as post-offending.[7] It was accepted that the applicant had found custody, and would continue to find being in custody, much more difficult than if he did not suffer from those depressive disorders. The judge acknowledged that sentence imposed would weigh more heavily on the applicant than it would on a person of normal mental health.[8]

26 The applicant's age was noted as a relevant sentencing consideration. As the judge said, the sentence given to the applicant might mean that his life may come to an end whilst in custody. However, this could not justify the imposition of an unacceptably inappropriate sentence.[9]

27 Given the applicant's lack of remorse, his Honour did not consider that specific deterrence should be significantly moderated as a sentencing consideration.[10] The applicant felt hostility toward his sons and the nature and severity of the symptoms of the applicant's condition and its effect on his mental capacity was not such as to reduce the need for specific deterrence.[11]

28 His Honour stated that, in addition, general deterrence must be reflected in the sentence handed down.[12]

29 The applicant seeks leave to appeal against the sentence on two grounds:

(2) The judge committed the following specific errors:

(a) His Honour failed to moderate specific deterrence.

(b) His Honour failed to moderate sentence by reference to age, imposing a crushing sentence.

(c) His Honour failed to mitigate sentence by reference to reduced moral culpability, given the Applicant's anguished and unfortunate life situation.

30 The applicant submitted that the sentence was manifestly excessive, given the applicant's prospects of rehabilitation, the anguish he has suffered, the additional burden of incarceration and the 'crushing' nature of the term imposed.

31 The respondent submitted that the sentence imposed was within the range of sentences available to the sentencing judge in all the circumstances.

... The ground of manifest excess will only succeed where it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.

34 In Nguyen v The Queen,[14] the Court said:

... As has frequently been stated, the ground of manifest excess is difficult to establish. An applicant must show that the sentence fell outside the range of sentences that could be imposed in the reasonable exercise of the sentencing discretion. The excess must be manifest in the sense that it is plain, clear, obvious, apparent or unmistakeable.

35 The applicant's case is a grave example of the offence of murder. It was, as his Honour found, 'a callous, vicious and public execution of your wife by you', which was planned, premeditated and thoroughly unprovoked.[15] General deterrence, denunciation and just punishment assumed considerable importance.[16] Specific deterrence was also relevant.

36 The trial judge took into consideration all of the matters relied upon in mitigation, including those identified above.

37 The applicant relied upon R v Acikoglu[17] as a comparator. In that case, the defendant shot his de facto dead in her home. The applicant submitted that in Acikoglu, as compared to the present case, the defendant had no mental difficulties and no age issues, and lacked the unfortunate life circumstances of the applicant.

However, he did show remorse. Bongiorno J imposed a sentence of 18 years, with a 14 year non-parole period.

38 A comparison with Acikoglu is of little or no assistance to this Court.[18] Like cases are not precedents and provide only, at best, a general guide or impression as to the appropriate range of sentences which may be available to a sentencing judge in the proper exercise of discretion.[19]

39 Neither the head sentence of 20 years nor the non-parole period of 16 years could reasonably be regarded as being at or anywhere near the upper end for offending of this nature. The sentence in our opinion reflects the very careful consideration given by the trial judge to all relevant matters including all the matters referred to by the applicant.

40 Although this is not the worst example of the offence, the applicant bears a significant degree of moral culpability. In our opinion, the planned, premeditated, callous and unprovoked attack with no remorse weighs heavily against the submission that the sentence was outside the range. The suggested excess is not 'manifest, in the sense that it is plain, clear, obvious, apparent or unmistakeable'.[20] The sentence did not fall wholly outside the range that was reasonably open to the sentencing judge. In fact, it was well within the range.[21]

41 The applicant submitted that specific deterrence should not have been a consideration, as there was no meaningful risk of re-offending. Almasa Locic was dead, and any risk to the sons was remote. The applicant submitted further that a reduced but substantial sentence would be no less of a deterrent. It was also argued that, by the time of his release, the applicant would be old and chastened, having spent a lengthy term in prison. Further, it was submitted that he would be subject to Parole Board assessment and supervision.

42 We do not accept these submissions. The sentencing judge stated correctly in relation to specific deterrence:

... Given your lack of remorse, I do not consider that taking into account the need to specifically deter you from committing such offences should be significantly moderated as a sentencing consideration. You feel significant hostility toward your sons and the nature and severity of the symptoms of your condition and its effect on your mental capacity is not such as to reduce the need for specific deterrence.[22]

43 His Honour was not persuaded that significant moderation was required. This finding was open to the judge in circumstances where his Honour rejected the submission that the applicant was genuinely remorseful, having regard to the contents of the record of interview,[23] and found that the applicant, as the evidence established, continued over a long period of time to harbour a deep seated hostility animosity and resentment towards his sons.[24]

44 Regarding Ground 2(b), Senior Counsel for the applicant submitted that the sentence was 'crushing' in the sense used in R v Beck,[25] connoting the destruction of any reasonable expectation of useful life after release. Further, it was submitted that in principle age is mitigatory of imprisonment.[26]

45 In our view, the sentencing judge was cognisant of the applicant's age and its effect on the sentence imposed. However, as his Honour stated,

You are not a young man and I have considered your age and its effect on the sentence. Whilst your age is a relevant sentencing consideration, that will not justify the imposition of an unacceptably inappropriate sentence.

The sentence I will shortly impose on you has the genuine potential to mean that that you will end your life in custody. Be that as it may, anything less would not, in my opinion, would be adequate to deal with your extremely serious criminal conduct.[27]

46 The judge did not fall into error in failing to further moderate the sentence imposed upon the applicant by reason of the applicant's relatively advanced age, having regard to the seriousness of the offending and other relevant sentencing considerations including deterrence, denunciation and just punishment.

47 The applicant submitted that despite the fact that his medical condition did not play a direct causal role in the offending so as to attract the principles in Verdins, he was 61, in a terrible emotional state, bereft of health, home, family and work. He was mentally ill, suffering from severe distress and chronic depression, heavily medicated and 'fixated' with grievances. The applicant submitted that the assessment of moral culpability as relevant to a sentence was not confined to the categorisation in Verdins, and that the sentence should have been reduced or moderated to take into account this condition. Further, it was submitted that the applicant did try and fight his depression and face his problems. Finally it was submitted that the sentencing judge did not give this aspect proper consideration.

48 In our view, the sentencing judge did take into account the state of the applicant's mental health, as described in the reports of Dr Cunningham, Dr Walton and Dr Fernando, and the context within which the applicant's offending occurred (namely while suffering from a depressive disorder and having fixated beliefs concerning his ex-wife and children). Moreover, his Honour accepted and properly took into account the likelihood that a sentence of imprisonment would impact more heavily on the applicant by reason of his mental state than it would upon a person of normal health.[28] However, there was no evidentiary basis upon which the learned judge could properly find that the applicant's moral culpability was reduced by reason of his medical and/or mental state, this ultimately being conceded by Senior Counsel for the applicant during the further hearing of the plea.[29] In these circumstances, no error has been demonstrated in his Honour's approach.

49 For these reasons we would grant leave to appeal and dismiss the appeal.

[1] [2007] VSCA 102 ('Verdins').

[13] [2007] VSCA 32, [13].

[14] [2014] VSCA 53, [20].

[17] [2001] VSC 163 ('Acikoglu').

[18] In Acikoglu, the sentencing judge found that the defendant's offending had not been premeditated and that he demonstrated remorse.

[19] Hudson v The Queen [2010] VSCA 332, [27]-[37]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, [53]-[55]; GC v The Queen [2013] VSCA 139, [39]-[40]; DPP v Bryan [2014] VSCA 54, [29].

[20] Soylemez v The Queen [2014] VSCA 23, [6]; Nguyen v The Queen [2014] VSCA 53, [20].

[21] The cases of R v Roesner [2002] VSC 384 ('Roesner') and The Queen v Robert Arthur Meade [2013] VSC 682 ('Meade'), referred to by Senior Counsel for the applicant provide some guidance. In Roesner, the accused pleaded guilty to brutally bashing his sleeping wife. There were many mitigatory factors and considerable remorse. Roesner was sentenced to 16 years with a non-parole period of 12½ years. In Meade, a premeditated killing of an ex-wife, the accused who pleaded not guilty was sentenced to 23 years with a non-parole period of 19 years. There was no remorse and no mitigatory circumstances.

[25] [2005] VSCA 11, [19] (Nettle JA).

[26] The applicant relied on R v Vella [2001] VSCA 174.

[27] Reasons [34]-[35]. See also R v Bazley (1993) 65 A Crim R 154, 158 and the authorities there referred to.

[29] Senior Counsel for the applicant submitted that despite such concession, the applicant should be permitted to make these submissions on appeal. Submissions were made by reference to the medical reports but we do not consider that they advanced the position. The evidence referred to was before the sentencing judge, and his Honour took the relevant matters into account.