Director of Public Prosecutions v Hornjak & Anor [2013] VSC 114

3 During the days immediately before his death, Adam Williams was seen to be acting in an unusual and aggressive manner. The evidence indicates that he was given to acting quite violently, in response to little or no provocation. On the day of his death, Williams visited Jessica House. He was armed with a serrated edge knife. As he approached the house, he noticed another resident of St Kilda, Sarah Shaddick. For reasons which are not clear, Shaddick was instantly frightened of Williams. She ran away from him, and Williams followed her. While doing so, he poured lighter fluid onto her head and shoulders, and set her on fire. Ms Shaddick managed to extinguish the fire by turning on a shower in the premises.

4 In the meantime, Adam Williams then entered Apartment 15, where you, Roslyn Rennie, were living with Dobrovitch. At that time you, John Hornjak, were also living in the same apartment. When Williams entered the room, he encountered two other persons, Andrew Campbell and Nathan Rosendale, who had attended there to purchase methylamphetamine. A confrontation broke out between Williams and Campbell and Rosendale. Williams was wrestled to the ground, and Campbell and Rosendale then repeatedly stomped on his head. He was also stabbed a couple of times by Dobrovitch. Shortly after that brutal assault, Williams died as a result of injuries inflicted on him.

5 At the time of the assault, you, Roslyn Rennie, were in another room in Apartment 15. Shortly after Adam Williams' death, you attended at a nearby 7-Eleven store, and purchased disposable gloves and bleach. You then proceeded to clean up the area in which Williams had been killed, as well as an area in the kitchen, where Dobrovitch had bled as a result of an injury he sustained during the fatal assault on Williams.

6 Adam Williams was then rolled up in a tarpaulin by you, John Hornjak, and he was placed in a wheelie bin. You, John Hornjak, and you, Roslyn Rennie, then carried the bin downstairs, where it was placed amongst all the other rubbish bins.

7 Over the next few days, discussions took place between those who were involved in the killing of Adam Williams, and you, as to how to best dispose of Williams' body. You, Roslyn Rennie, endeavoured to enlist the assistance of an acquaintance, Craig Morris, to dispose of the body, but Morris refused to cooperate. Subsequently, you persuaded another colleague, Matthew Barnett, to assist in that regard. As a result, Barnett drove his utility motor vehicle to Jessica House. You, John Hornjak, together with Dobrovitch and Barnett, loaded the wheelie bin into the utility. You, Hornjak, then travelled, with Dobrovitch and Barnett, to Mordialloc, where the three of you attempted to dispose of the body by dumping the wheelie bin into the Mordialloc Creek. However, you were unsuccessful in doing so, because you were unable to cause the bin to sink to the bottom of the creek. Accordingly, the three of you removed the bin from the creek, and wheeled it approximately 50 metres to some nearby bushes, where it was left.

8 Approximately two weeks later, you, Hornjak, and you, Rennie, together with Sarah Shaddick and Andrew Campbell, drove to Mordialloc, and checked on the site where the wheelie bin had been dumped.

9 Approximately two months later, on 4 March 2012, the wheelie bin was discovered during the annual "clean up Australia" campaign, and was taken to landfill. However, it has not been possible to find, or recover, the wheelie bin containing Mr Williams' body which, it would seem, had subsequently been covered by large piles of rubbish.

10 You, John Hornjak, were interviewed by police on 23 August 2012 and, again, on 5 September 2012. In each interview, you made admissions to the police. On 5 September 2012 you were charged with being an accessory to murder. On 19 October 2012, you provided a DNA sample to the police, and made an induced statement. At a committal mention held on 20 December 2012, you pleaded guilty to the offence of being an accessory after the fact to manslaughter.

11 You, Roslyn Rennie, were first interviewed on 30 August 2012, and again on 17 September 2012, when you were charged with being an accessory to murder. On that day, you also made a statement setting out your version of the events. At a committal mention held on 30 January 2013, you pleaded guilty to the offence of being an accessory after the fact to manslaughter.

12 The offence, to which you have each pleaded guilty, is a serious offence. The maximum sentence for the offence is five years' imprisonment. In particular, your offending in this case involved you both in conduct which had the purpose of impeding the apprehension, and successful prosecution, of three co-offenders, who had been involved in a particularly violent and serious instance of the crime of manslaughter. By that offence, your three co-offenders had unlawfully taken the life of another human being. Your actions were designed to remove any evidence of the death of Mr Williams, and any evidence which might implicate your three co-offenders, Campbell, Dobrovitch and Rosendale, in the unlawful killing of him. As such, your offending was designed to undermine the due enforcement of our criminal law, and to impede the criminal justice system.

13 I have read the victim impact statements of Mr Williams' brother, and his partner, together with a moving note written by his youngest sister. Although Adam Williams, at the time of his death, was apparently experiencing some personal difficulties, nevertheless it is clear that he was a man with good qualities, who was dearly loved by his family. The victim impact statements, and the note, speak eloquently of the grief and anguish occasioned to Mr Williams' loved ones arising out of his unlawful death. You, John Hornjak, and you, Roslyn Rennie, were not legally responsible for Mr Williams' death. However, your actions were directed to, and resulted in, the permanent concealment of Mr Williams' body. As a result, he has not been accorded the dignity of a funeral. Even more significantly, his family have been deprived of the opportunity of paying a last farewell to him, and of achieving, at least in some measure, a degree of closure in respect of his premature death. In that way, your offending has substantially aggravated the grief and anguish occasioned to Mr Williams' loved ones arising out of the killing of him by your co-offenders.

14 I turn, then, to matters put in mitigation in respect of each of you on the pleas presented on your behalf. Before considering matters relevant to each of you individually, there are some matters, put in mitigation, which are common to both of you.

15 First, of course, on your apprehension by the police, you each made full admissions of your part in the offence to which you have pleaded guilty. Those admissions were, in large measure, candid and spontaneous. Indeed, you, John Hornjak, when spoken to by the police, spontaneously stated, "I want to tell you what happened, it's been worrying me, I have not been able to sleep".

16 Those sentiments, expressed by you to police at Warburton Police Station, are very much consistent with statements subsequently made by you to Ms Pamela Matthews, a consulting psychologist who examined you on 27 February last.

17 In addition, neither of you have resiled from the admissions of guilt, which you have made. I accept that the plea of guilty, by each of you, was made at the earliest possible opportunity. In a case such as this, your plea of guilty is of important weight. First, it signifies your acknowledgment of your criminality and wrongdoing. Secondly, in each case, I accept that it is an expression by each of you of your remorse for your involvement in the offence. Thirdly, the plea of guilty by each of you is of real utilitarian benefit. Notwithstanding that it would seem that your co-offenders may contest their guilt, the fact that you will not be doing so will reduce the length of the trial, and, importantly, reduce the burden which would otherwise fall to the jury at your trial.

18 Over and above that, you have each, from an early stage, indicated an intention, and commitment, to cooperate with the prosecution, and to give evidence against your co-offenders, if required to do so. On your plea, each of you, on oath, affirmed the truth of the statements which you have made to the police, undertook to cooperate with the prosecution of your co-offenders, and undertook to give true evidence, if called upon to do so. I explained to each of you the importance of the undertakings given by you, and the potential consequences should either of you not abide by those undertakings.

19 The undertakings thus given by you, and your cooperation with the authorities, are of significant benefit to the administration of justice. The law has long recognised the importance of offenders, such as you, cooperating with the authorities, and with the prosecution. That is because, in the absence of such cooperation, serious offences may well go undetected, and persons, who have committed serious crimes, may well remain at liberty. As such, as a matter of public policy, the cooperation given by you, and the undertaking which each of you have made to this Court, are substantial mitigating circumstances in each of your cases.

20 By cooperating with the police, and undertaking to cooperate with the prosecution, each of you have no doubt placed yourselves in somewhat invidious positions in relation to your co-offenders. That is not uncommon for persons in a position such as you. However, it is a consideration which is relevant in assessing the mitigating effect of your cooperation in this case.

21 I now turn to the matters which are personal to each of you.

22 You, John Hornjak, are 31 years of age. As your counsel, Mr P Morrissey SC, stated, you had, until late 2011, lived something of a "double" existence. On the one hand, you had been a useful member of society, gainfully employed, and involved in a meaningful relationship. At the same time, you had become heavily involved in the consumption of addictive illicit drugs, and, in particular, amphetamines and methylamphetamine. It was that addiction which, shortly before these events, propelled you into the setting, characterised by drugs and violence, in which the offence took place.

23 You come from a stable and supportive family. Your parents came to Australia from Serbia in 1969. Your father established a successful mechanical repair business. You completed your secondary education at Year 12 level. Having done so, you undertook training as an automotive transmission specialist. During that time, you lived at home with your parents and your brother. You completed your training at the age of 24 years, and joined your father's business. You continued to work there, with one interruption, until 2011. During that period, you formed a relationship with Ms Allie Cho, with whom you lived for some years.

24 At the same time, however, you were increasing your consumption of illicit drugs. You first commenced using cannabis at the age of 15 years. By the time you were 20 years of age, you commenced using methylamphetamine. During the next decade, you used that substance, and other amphetamines, in increasing amounts. At one stage, in 2006, you undertook a one week detoxification program which was successful. However, when that program concluded, you relapsed into using illicit drugs. In 2008, you were convicted by the Sunshine Magistrates' Court of obtaining property by deception. I was told on your plea that the offence involved a large amount of money, which you used to purchase further drugs. The magistrate adjourned the matter for 12 months, upon you undertaking to attend counselling and undertake treatment for your amphetamine addiction. As a result of your offending, your father terminated your employment with his business. However, after a few months he permitted you to return, albeit subject to some conditions.

25 During that time, your relationship with Ms Cho continued. However, you continued to deceive her as to your drug use. In mid-2011, she discovered a cache of needles, and promptly left you. As a result, you were unable to pay the rent on the flat in which the two of you had been living and you were evicted. You committed a series of offences, including a theft of a motor vehicle, which you sold to gain money for drugs. In November 2011, you were placed on a community based order for twelve months in respect of those offences. You appealed against that decision, but your appeal was subsequently struck out in February 2012.

26 In the meantime, you resorted to further criminality, in order to feed your drug habit. In November 2011, you committed a burglary in Caulfield, which was subsequently dealt with by the courts in February 2013.

27 After you left Ms Cho, you lived in various residences, including in a rooming house in Elwood. There you met Roslyn Rennie and Michael Dobrovitch. You moved in with them in Jessica House. At that time, Ms Rennie and Dobrovitch were acting as the caretakers of a property. As I have already stated, they were also supplying drugs from the apartment in which they resided.

28 It was in that context that you became involved in the offence, to which you have pleaded guilty. The killing of Adam Williams, by your co-offenders, was particularly brutal and confronting. Notwithstanding your previous offending, you had not, at that stage, been involved in any significant crime of violence. I have no doubt, as submitted by your counsel, that you were, to some extent, intimidated and out of your depth, when you were faced with what had occurred. That observation does not excuse your involvement in the crime. Rather, it does explain it, and, more importantly, may provide some key to your prospects of rehabilitation.

29 After the offence, you left Jessica House. On 31 January 2012, you committed a robbery and a burglary and a theft of tools. Those offences were again committed in order to pay for your drug habit. The circumstances in which you committed the robbery are of some concern, in particular as they involved you forcefully seizing a bag from a woman, who was carrying a baby in her arms.

30 Nevertheless, three weeks later you commenced to stay with Craig Morris. You told Mr Morris what had occurred, and you gave him an account, which is consistent with the account which you gave to the police.

31 It seems clear that at about that time, your realisation, of the effect of your involvement in this offence, had a dramatic effect on you. On 16 March 2012, you were accepted into, and commenced, the Narconon Drug and Alcohol Rehabilitation and Education Program. That program is conducted at premises at East Warburton, at which you resided until 29 November 2012. The report of Ms Pilon, the executive director of the program, notes that as a result of your participation in the program, there were a number of important improvements in your state of mind, your attitude to others, your motivation, and your sense of responsibility. Ms Pilon notes that you expressed great remorse and regret for your actions. You stated to her that you wanted to confront your demons, and to find a way to make amends for your actions.

32 Having completed the Narconon Program, you have returned to live with your parents. You have resumed working in your father's business, and you have what might be described as a managerial role in it. In the meantime, in September 2012, you were placed on a community corrections order in relation to your participation in the offences you had committed on 31 January 2012, to which I have already referred.

33 The matters relating to your background, which I have just recited, are relevant. First and foremost, it is clear that you have taken constructive and commendable steps to cure yourself of your destructive drug addiction, and to rehabilitate yourself so that you will be capable of living a productive and law abiding life. Your steps towards rehabilitation, which I have just described, reinforce my conclusion that you are remorseful for your offending, and for the hurt which you have occasioned to Mr Williams' family as a result of it. Those matters are also a basis upon which to express a reasonable degree of confidence about the prospects for your rehabilitation. That confidence is reinforced by the opinion of Ms Matthews, the psychologist, who has described your actions as positive foundations for rehabilitation. In that respect, I note that you have strong support from your parents, who were in court during your plea, and your elder brother.

34 I now turn to your background, Roslyn Rennie. In many respects, it is quite different to that of Mr Hornjak. You have had a difficult life, which was outlined to me in a helpful plea by your counsel, Mr Dann. That life ultimately resulted in you finding your way into the type of environment, characterised by drugs and violence, in which your offending took place.

35 You were born in 1961, and are 51 years of age. You were raised in Alexandra. Your father was a farmer. You have three elder sisters, and an elder brother. They have each lived productive and useful lives.

36 You completed your secondary education at the end of Year 10. At that time, you were the victim of a nasty rape, as a result of which you became pregnant. As a consequence, you moved to Melbourne, to live with one of your sisters. You gave birth to a baby, who was immediately given up for adoption.

37 Shortly thereafter, you commenced to live on your own in the Elsternwick and St Kilda area. There you found employment working in a restaurant, and subsequently performing clerical duties at the Stock Exchange. In 1980, at the age of 19 years, you returned to your home for Christmas Day to visit your parents. Tragically, your mother had a fatal heart attack before you arrived at home. I have no doubt that that traumatic episode occasioned considerable grief to you.

38 You returned to Melbourne, but lost your employment, when you stole a cheque from your employer. You then obtained other employment, working with a newspaper in an administrative and reception role. At that time, you entered into a relationship, from which you had a child in 1984. After a short time, you then worked for Australian Consolidated Press for three years in an administrative capacity. Your partner and you, with your young child, then travelled to Ayres Rock. There, you gained employment in a number of different capacities.

39 Your next child, a daughter, was born in October 1993. However, she was born without a functional immune system, and she died five months later. You gave birth to another daughter in December 1994, who, unfortunately, has suffered from the same disorder. She was required to undergo three bone marrow transplants over a course of two years. For some time, she was required to live in a crib in the Royal Children's Hospital, and then in isolated accommodation.

40 By then, you were living in a different relationship. However, because of your daughter's disorder, you and your partner lived in a degree of isolation. You moved to Darwin, and worked there in a number of other capacities. Your relationship with your partner ended in Darwin. It was there that you met Dobrovitch.

41 Ultimately, you moved, with your daughter, to Melbourne in 2010. Dobrovitch and you obtained the position of caretakers at Jessica House. The residents of that accommodation consisted of a combination of backpackers and drug users.

42 You have consumed illicit drugs for more than thirty years. Your drug habit did not prevent you from working, and you apparently used amphetamines to energise yourself. You used drugs once per week, or once per month. By the time that you and Dobrovitch moved to Melbourne, you were both also supplying drugs to other users.

43 During your relationship with Dobrovitch, he was violent towards you. In the period of time leading up to the offence, he had become more violent towards you. At the time of the offence, you were endeavouring to extricate yourself from your relationship with him.

44 It was in that setting that your offending took place. I accept that you were not present in the same room when the brutal assault on Mr Williams occurred. Further, after Mr Williams was killed, Dobrovitch sought to intimidate you, and he was violent towards you, in order to ensure that you cooperated with his co-offenders and him. While that does not excuse your offending, nevertheless it gives some explanation of how you became involved in such a serious offence.

45 Shortly after the offence, you terminated your relationship with Dobrovitch. You moved back to Darwin last year with your daughter. Since then, you have been unable to find employment. You are struggling financially, and your life is particularly difficult.

46 As I have already noted, you made full admissions to the police. When you gave your undertaking to the court to cooperate, you expressed remorse to the family of Mr Williams. Although your expression of remorse was somewhat limited, nevertheless I accept that that itself was a product of your difficult background.

47 You do have previous convictions, namely for drug offences. Significantly, none of your previous convictions are for violence. Thus, I accept that your involvement in the offence in this case was out of character for you.

48 In summary, the offence which each of you have committed is particularly serious, for the reasons I have already explained. However, in the case of each you, there are significant mitigating factors. Most importantly, you have each pleaded guilty, cooperated with the police, and given an undertaking to cooperate and give evidence against your co-offenders. In your case, you, John Hornjak, have taken positive steps towards rehabilitation.

49 Counsel for each of you conceded, correctly, that the seriousness of your offending makes it necessary that I impose a term of imprisonment upon you. They both submitted that, given the circumstances of your offending, and your mitigating circumstances, it is appropriate that the period of imprisonment should not be more than three years. Your counsel each submitted that I should make an order wholly suspending the term of imprisonment. The prosecutor, Mr Ryan SC, accepted that a custodial sentence of three years or less was within the range of appropriate sentences for each of you. He also submitted that, in light of your undertaking to cooperate with the prosecution, it would be appropriate to wholly suspend your term of imprisonment.

50 Taking into account, on the one hand, the gravity of your offending, and, on the other hand, your mitigating circumstances, I have come to the conclusion that I should accept the submission made on each of your behalf by your counsel. In particular, I am satisfied that, in the circumstances, it is appropriate to impose a sentence of imprisonment, on each of you, of less than three years, and that it is appropriate that that sentence of imprisonment be wholly suspended. Accordingly, I sentence each of you to a period of two years' imprisonment. Pursuant to s 27 of the Sentencing Act, I order that the whole of that term be suspended for a period of two years.

51 Pursuant to s 5(2AB) of the Sentencing Act, I announce that I am imposing a less severe sentence, than I would otherwise have imposed, because of the undertakings given by each of you to assist and cooperate with the law enforcement authorities in the investigation and prosecution of the manslaughter of Adam Williams, which occurred on 31 December 2011, to make yourself available for that purpose as and when required, and to give evidence in respect of that offence as and when required. I shall cause to be noted in the records of the court the fact that the undertaking was given, and the details of that undertaking.

52 You have each pleaded guilty to the offence for which I have just sentenced you. As I have already stated, I have taken into account your plea of guilty as a mitigating circumstance, which has resulted in a lower sentence than you would otherwise have received. Ordinarily, s 6AAA of the Sentencing Act requires me to state the sentence which I would have imposed on you but for the plea of guilty. In this case, your plea of guilty is inextricably connected with your cooperation with the police, and with your undertaking to assist and give evidence if required. I can, however, indicate to you that, if it were not for your cooperation with the police, your plea of guilty, and your undertaking to assist and give evidence if required, I would have sentenced each of you to an immediate term of imprisonment of three years. Thus, your plea of guilty, in each case, has resulted in a shorter term of imprisonment imposed on you, and also in the suspension of that term of imprisonment.

53 I am obliged by the legislation to explain to you the effect of the order, which I have just made.

54 You have each been sentenced to a term of imprisonment of two years, which has been wholly suspended for a period of two years. If either of you commit another offence, whether in or outside of Victoria, punishable by imprisonment during the operational period of the suspended sentence, you will be liable to be brought back before this Court for re-sentencing. In such a case, save for exceptional circumstances, the Court would be required to restore the sentence imposed on you, and to order you to serve it in custody.