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[2004] VSC 158
General information, not legal advice.
Supreme Court of Victoria
2004-05-10
Cummins J
Original judgment source is linked above.
Criminal law - Sentence - Murder - Execution killing - Counselling and procuring - Considerations applicable.
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1 Sudo Cavkic, Costas Athanasi and Julian Michael Clarke, after a seven week trial each of you has been convicted by a jury of the murder in Victoria but at a place unknown on or about Sunday, 28 May 2000 of Keith William Allan. The murder was a paid execution. It was planned, deliberate, methodical and cold-blooded. It was you, Mr Cavkic, who killed Mr Allan. It was you, Mr Athanasi, who arranged it. And it was you, Mr Clarke who planned it and for whose benefit the murder was committed. The murder was for money. You, Mr Cavkic, killed the deceased for money; you, Mr Athanasi, arranged the killing for money; and you, Mr Clarke, conceived and set in train the killing in order to deflect from yourself blame for thefts you had been committing on the trust account of the practice of Mr Allan, a solicitor.
2 Those bare facts place this killing in the worst category of murder.
3 You Mr Clarke, were Mr Allan's trusted employee. You were his law clerk. He was a solicitor, practising primarily at Avondale Heights. When the solicitors' regulatory body, Victorian Lawyers RPA Ltd, was closing in on the solicitor's practice in an investigation of its affairs, which investigation imminently would reveal your extensive thefts, Mr Clarke, you arranged for the murder of your employer so that, with him forever silenced, you could divert blame for the thefts from yourself to the dead solicitor. You then spun a web of manipulation and deceit seeking to hide the murder and your causal role in it. You were brought undone by good police work. So too were you, Mr Cavkic and Mr Athanasi.
4 This crime, already as I have stated in the worse category of murder, possesses a further exacerbating factor. Each of you was convicted by the jury of the murder of the deceased "at a place unknown". The charge was so expressed because the body of the deceased has never been found. From Monday, 29 May 2000, day after day, week after week, year after year the loved ones of the deceased by not only your actions but by your silence have suffered the cruel anguish first of hoping their loved one was alive, then not knowing but hoping against hope, then sinking into acceptance of his death, and yet never, even now, being able to give him the dignity of a farewell and a final resting place. After your convictions by the jury, the matter was stood over to enable pleas in mitigation to be made on each of your behalves. It is five weeks from your convictions until today. Despite in that time having full opportunity to reveal where the body was left, none of you has revealed it. None of you has any remorse for the murder. Instead of exhibiting remorse each of you has presented to the court, from the day of your convictions until today the day of your sentences, a granitic silence.
5 In the small hours of Monday, 29 May 2000, two young and alert police officers from the Altona North Police Station, Senior Constables Strongman and McCarthy, and who are a credit to their Force, were conducting a divisional night patrol in the Altona and Laverton area. At about 2.20 am they observed your white Jaguar sedan, Mr Athanasi, which you had purchased on 20 April 2000 with part of the money paid to you by Mr Clarke to arrange the murder of the deceased, proceeding on the roadway near the border of Altona Meadows and Laverton South. They followed it into a cul-de-sac, Ayr Street, Laverton. Ayr Street was a short street leading to a parkland which bordered Skeleton Creek. At the end of Ayr Street the officers found not one but two vehicles and not one but two persons. You, Mr Athanasi were alone in your car. The officers asked you your particulars and a number of questions about what you were doing in the cul-de-sac, in the proximity of another person and vehicle. They did likewise with the other person. You kept your cool, Mr Athanasi. You gave the appearance of innocent cooperation. You told the truth about matters that helped you, but lied about why you were there. The officers had no means then of knowing that you were lying. In the end, having no reason to doubt your story, the officers told you you could leave. You got back into your Jaguar and quietly drove off into the night, leaving the other person there to face the police. You felt no loyalty to him, even though you knew he was there because of arrangements you had initiated with him. The man you left behind was Sudo Cavkic.
6 You, Mr Cavkic, also attempted to bluff the police. Like Mr Athanasi, you too were cool under pressure. You too lied to the police. You engaged the police in a process of brinkmanship, progressively lying about but then admitting as much as you had to admit as the police enquiries progressed. The officers picked up an inconsistency in the name given by you and the name by which Mr Athanasi referred to you. You had in your possession a Russian Tokarev self-loading service pistol loaded with five cartridges in the magazine (with a capacity for eight cartridges), and a shoulder holster. In the dark you hid the weapon from the police and it was only discovered when you were later taken to the Williamstown Police Station. Particular attention was paid by the police to the vehicle in your possession in Ayr Street. It was a dark blue Mercedes sedan. Police soon established it was leased by Mr Keith Allan. In it you had the accoutrements of death - two shovels, with fresh soil on them, rope, an iron bar, and personal possessions of Mr Allan. You also had a can of petrol. You intended to set fire to the Mercedes in order to destroy evidence and to divert the police investigation. But the responsible actions of the two young police officers thwarted your plan.
7 There was also a silent witness in Ayr Street. Although not seen at the time, there was blood on the lower portion of your clothing and footwear, Mr Cavkic. That clothing and footwear was seized from you at the Williamstown Police Station and later forensically examined for DNA at the Victorian Forensic Science Centre, Macleod. The blood was that of Mr Keith Allan.
8 You Mr Cavkic were removed to the Williamstown Police Station. The pistol you had in your possession was discovered. Homicide was called in. At that stage the police had you, the pistol and shoulder holster, the Mercedes and its contents, and demonstrable lies by you as to the circumstances of your possession of the Mercedes. You said to Detective Senior Sergeant Rovis, a senior homicide squad officer who attended at the Williamstown Police Station, at the commencement of his questions of you:
"Look, I can clear this up with a couple of phone calls. I told the other cops this already. I can't believe this shit."
"We want to clear this matter up as well. I don't know if we should even be involved. All we want to know is where the owner of the Mercedes is. We're not interested in the firearm or why you had the car."
You Mr Cavkic then presented the officer with a false account, at the end of which the officer said:
"Sudo, some of what you're telling us seems a bit far-fetched. There are two possible scenarios that I can think of. One is that Keith has been killed and somehow you have his car and two, that Keith is alive and for some reason has not come forward. If he's alive and well and you know where he is tell us now before this whole thing gets out of hand."
You maintained your false story. Later that day you were then charged with possession of the pistol. It would have been wholly premature for investigating police to conclude on Monday, 29 May 2000 that they had a homicide on their hands, and they did not. They proceeded to investigate the matter thoroughly.
9 One of the complicating factors in the investigation of whether this was a homicide or a disappearance was the web of manipulation and deceit spun by you, Mr Clarke. That conduct reached its nadir in a letter you created at 9.27 pm on Sunday, 28 May 2000 at your victim's office and as your murderous arrangements were closing around him. The letter was exhibit DD before the jury. It stated:
"Keith,
It is with great reluctance that I write this letter.
I cannot however go on with the charade that you have demanded of me.
Keith, I like you very much and there is nothing that I would not do to save your practice and the jobs of [the staff]. I feel that this has not been better illustrated than my complicity in covering your tracks and the sham in trying to delay the investigation by the Law Institute these past 8 months.
It cannot go on any longer.
Unless you have adequate funds in trust to trade and by that I mean to cover all trust balances by 9.30 am Monday 29 May 2000 I will have no alternative to report the matter the Law Institute unless you have already done so.
Please do not do anything rash ..."
"Lastly Keith you have indicated to all and sundry your preparedness to take your own life. Put this thought out of reach Keith."
You then shadowed Mr Allan to the executioners you had arranged for him.
10 Mr Keith Allan was a sole practitioner. He was an honest solicitor. However he was a trusting person and an inefficient financial manager. In February 1995 he employed you Mr Clarke as a law clerk at his practice. Your work was largely conveyancing work. Mr Allan also largely left the financial side of the practice to you, at which you were skilled. From 5 February 1996 he authorised you to operate the trust account on your sole signature. You saw your chance to abuse the system of accounting at the practice and abuse it you did. Through his limitations Mr Allan did not appreciate what you in fact were doing. Mr Allan, as the sole legal practitioner, was responsible for what occurred at the practice and he failed grievously in that regard. In so failing he failed his clients and his professional and legal responsibilities. But it was you, not he, who was misusing the trust account. In the end when it became apparent even to Mr Allan that the financial and operational elements of the practice had been hopelessly compromised he was prepared to face the consequences. On the afternoon of Friday, 26 May 2000 he told his staff (in your absence) that he was going to telephone the investigator at Victorian Lawyers RPA Ltd on the Monday and ask her to come out to the practice. That would soon have revealed your own conduct Mr Clarke. However that revelation was inevitable, because that regulatory body had been investigating the legal practice for some time and it was inevitable that the truth would be revealed. Thus it was that you, Mr Clarke, had already conceived and set in train the plan to murder Mr Allan and then to blame the dead and silent solicitor for your own financial misdeeds.
11 After Mr Allan's death, on 31 May 2000 a receiver was appointed to the solicitor's practice. In the result there were 69 claims against the practice, mainly in relation to conveyancing matters, totalling $827,302.07. The Legal Practice Board in respect of those claims had paid out the amount of $577,128.44 at 26 June 2003. There was a deficiency in the practice trust account of approximately $500,000.00.
12 Over a significant period of time and unknown to your employer, you Mr Clarke had been utilising the trust account to sustain your lifestyle. You yourself were not a heavy gambler but your partner Mr Chew was and you funded his gambling habit. You also utilised the trust account to create and maintain a profile at the Mahogany Room, Crown Casino whereby you appeared to be a successful person and whereby you gained the acquaintanceship of persons there including assisting in roll-over gambling arrangements of one patron. From 26 November 1998 to 7 September 1999, 32 payments totalling $3,751,000 were paid from the trust account for that person's benefit, in respect of which $144,000 was unfunded. Between 2 February 1999 and 19 April 2000, 37 payments were made from the trust account to Mr Chew, totalling $961,978.00, in respect of which $29,000 was unfunded. In the 12 months to September 1999, approximately $4,300,000 passed through your Westpac Bank account. Between 1 January 1999 and 26 May 2000 there were 53 deposits totalling $3,960,000 from that account to the trust account. The total payments from the trust account to you or persons in your favour and which was unfunded was $426,960.00. All of this abuse and theft was imminently to be revealed by the ongoing investigation by Victorian Lawyers RPA Ltd which had commenced on 25 November 1999 as the result of a complaint lodged with that body. That in turn led to it commencing an examination the trust account records of the practice. The inspector was a very able and experienced certified public accountant. In order to enable yourself to blame Mr Allan for your own conduct, you had him killed. You even paid for the killing with money you stole from his trust account.
13 You, Mr Athanasi, were paid $70,000.00 by Mr Clarke to arrange the murder of Mr Allan. This was done by the payment to you of four trust account cheques between 12 April 2000 and 19 May 2000 arranged by Mr Clarke. The cloak for these cheques was the pretence that they were repayments to you of a loan. All false.
14 It is not known, Mr Cavkic, what was your reward for doing the killing. Probably you were paid an amount of cash by Mr Athanasi.
15 The telephone records produced before the jury demonstrate a web of contact between you all in the preparation, conduct and aftermath of the killing. Mr Allan was killed in the hours between 11.00 pm on Sunday, 28 May 2000 and 2.00 am on Monday, 29 May. It is not known precisely how he was killed. It is likely that the killing took place in the mountain area north-west of Melbourne, perhaps in the vicinity of Mt Macedon or Mt Blackwood. It was on the return from the murderous expedition that you, Mr Cavkic, and you Mr Athanasi, were investigated by the alert Altona North night shift police patrol. You, Mr Clarke, ensured that you stayed well in the shadows.
16 Because of the initial lack of conclusiveness as to whether this was a homicide or a disappearance and because the matters required extensive investigation, it was not until 18 February 2002 that you Mr Cavkic were charged with the murder of Mr Allan. You, Mr Athanasi were charged with the murder on 1 November 2002. You, Mr Clarke, were charged with the murder on 31 October 2002. None of you has ever admitted your guilt. Each of you at trial remained mute as is your plenary right not to be derogated from. No accused is to be punished for exercising his or her legal rights and you are not. The defences at trial of each of you were the same, namely that the prosecution had not proved that Mr Allan was murdered. The jury found that the prosecution had proved beyond reasonable doubt that Mr Allan had been murdered and that each of you is guilty of his murder. The prosecution case was that you Mr Clarke were the architect and intended beneficiary of the murder, you Mr Athanasi were the arranger, and you Mr Cavkic the killer. Put in legal terms, you Mr Clarke counselled and procured the murder, you Mr Athanasi also counselled and procured the murder, and you Mr Cavkic committed the murder. Those respective roles were plainly revealed by the evidence and are consonant with the jury's verdict.
17 I pay tribute to the work of the jury in this case. Twelve citizens randomly chosen from the community selflessly applied themselves over a period of seven weeks to the onerous task of being the judges of the facts. Their conscientiousness and perceptiveness are a tribute to themselves and to the community. Time after time juries demonstrate selfless and responsible qualities. The administration of justice is well served by the citizens of this State who provide jury service.
18 You Mr Cavkic are now 36 years of age, having been born on 1 January 1968. You were 32 years of age at the time you murdered Mr Allan.
19 You were born in Bosnia and at the age of 2 years came to Australia with your family. You come from a good, hard-working family. You attended local schools in the St Albans area and left school in Year 11. You have a good employment history thereafter but like many persons you have been adversely affected at times by economic downturn in the areas in which you worked. You were unemployed at the time of this offence. You have a daughter now aged 12 who is living with her mother interstate. You have genuine and worthy feelings for your family and especially for your daughter and you feel shame for the position you are now in in its effect upon them. Those feelings are important as indication that you are capable of rehabilitation, as I consider you are. You have conducted yourself well in custody and have undertaken courses in custody, which are worthwhile in themselves and also indicate the ultimate prospect of rehabilitation. You are of normal intelligence. You suffer no psychiatric illness or psychological disorder. You have some prior convictions mainly for driving offences and none for violence. In the context of the seriousness of the crime of which you have been found guilty I disregard your prior convictions. I have taken into account the matters comprehended in the psychological report tendered on the plea on your behalf of Ms E.L. Warren of 18 April 2004 and the matters helpfully put on your behalf by your counsel.
20 You Mr Athanasi are now 39 years of age, having been born on 17 June 1964. You were 35 years of age at the time of Mr Allan's death.
21 You were born in Cyprus and at the age of 6 years came to Australia with your family. You also come from a good, hard-working family. You attended schools in South Australia (when your family was there for 4 years) and in the Kealba area and completed Year 12. You have a good employment history, working both in Victoria and in Cyprus when your family moved back there in 1996 after a financial failure of the family business. You stayed there for two years. You have had a long term relationship with a woman which relationship was attended by significant emotional and other problems. You have two children by that relationship, now aged 9 and 8 years. Despite the burden of serving terms of imprisonment, you have shown interest and concern for your children and keep in regular permitted contact with them and their mother. That stands significantly to your credit, Mr Athanasi, and is also relevant as indicating your potential for rehabilitation. You are of normal intelligence. You suffer no psychiatric illness or psychological disorder. In 1998 you were stabbed in the left arm while working as a security guard, the consequences of which caused you difficulty in holding employment. You became a gambler and also a user of and trafficker in illicit drugs. You have some limited prior convictions but none for violence and I disregard your prior convictions. In July 2003 (thus not a prior conviction) in the County Court you pleaded guilty to six counts of trafficking in a drug of dependence, four counts of possessing drugs, possession of a .177 calibre Walther double-action eight-shot air pistol, and some related counts. I have read the sentencing remarks of His Honour the sentencing Judge, Judge Gullaci made on 4 July 2003. His Honour found that you were "a mid-level trafficker" (pp 69 and 72). The trafficking was in methylamphetamine and ecstasy. The possession was of heroin, ketamine and cannabis. Between 18 February 2002 and 21 March 2002 you had been the subject of a covert police operation and your mobile telephone was lawfully monitored. Some 11,442 calls were made to and from your mobile phone in that period. When you were arrested in March 2002 you were addicted to numerous drugs. Since your then arrest you have desisted from using illicit drugs. Some offences to which you pleaded guilty constituted breach of an earlier suspended sentence imposed on 8 February 2001 for trafficking in methylamphetamine. In the event, Judge Gullaci on 4 July 2003 imposed a total effective sentence upon you of 5 years 9 months' imprisonment, with a minimum term of imprisonment before eligibility for parole of 4 years 4 months. His Honour pursuant to the provisions of the Sentencing Act 1991 declared the period of 487 days pre-sentence detention as already served under the sentence he imposed. You have been in custody since your arrest in March 2002 on the later of those charges. In custody you have conducted yourself properly. You have undertaken and successfully completed a number of courses, certificates as to which were tendered on the plea on your behalf. I consider you are a person of some capacity. Your good conduct in prison and the courses you there have successfully undertaken indicate that you are capable of reformation, as I consider you are. I have taken into account the matters comprehended in the psychological report tendered on the plea on your behalf of Mr B.J. Healey of 18 June 2003 (directed to the County Court proceedings) and the matters helpfully put on your behalf by your counsel.
22 You, Mr Clarke are now 47 years of age, having been born on 13 June 1956. You were 43 years of age at the time of Mr Allan's death.
23 You grew up and were educated in the Geelong area. You came from a good, hard-working family. At 18 years of age, you commenced working in the Ministry of Housing. After some 10 years you commenced working as a law clerk in Geelong. You later came to Melbourne and then commenced working as a law clerk in Mr Allan's legal practice in February 1995. No specialist report or other material has been placed before me on your behalf on the plea. Obviously you are intelligent. There is no evidence that you suffer any psychiatric illness or psychological disorder. In your case, Mr Clarke, as with the other two accused, there is absolutely no evidence of remorse. However in your case, Mr Clarke, unlike the other two accused, there is no specific material the harbinger of reformation. That of course does not mean that one abandons that element in sentencing. Reformation, and the prospect of or opportunity for it, is always important in sentencing and it is with you.
24 You have no other convictions.
25 You are not to be sentenced here for the thefts from the trust account of Mr Allan's practice, and you are not.
26 A significant distinguishing factor between you and the other two accused is that it was you, not they, who conceived this crime, you not they who instigated it, and you not they who were its intended beneficiary. You also were the trusted employee of the victim.
27 Mr Keith Allan was born on 19 November 1946 and was 53 years of age at the time of his death. He was the younger of two children of his parents. He was educated at Northcote High School and then the University of Melbourne where he obtained the degree of Bachelor of Laws. He was admitted to legal practice on 1 April 1971. He commenced practice as a sole practitioner under the name Keith W. Allan and Associates in Avondale Heights on 16 July 1973. In 1992 he also commenced a legal practice in Springvale, although this was always secondary to the Avondale Heights practice. He was a bachelor. He was devoted to his parents. He and his elder brother, Lyle, lived together in Northcote next door to their parents' home. Their father died in 1993. Their mother continued to reside in the parental home. The two men were devoted to their mother and cared for her with attention, love and affection. At the time of Keith's murder, Lyle was a retired schoolteacher pursuing studies towards a Doctorate of Philosophy. Keith Allan was a plain man who led a modest life. He had a long-term relationship with a lady living nearby and had many loyal acquaintances and friends through the harness racing industry. Keith's great interest outside the law was harness racing. He was a very small punter, in the $10 category, a non-smoker and non-drinker.
28 Mrs Allan, the mother of the deceased, was grievously afflicted by his disappearance. First the shock of his disappearance, then the cruel uncertainty of what had happened to him, and the even crueller oscillation between hope and despair, all took their toll on her health and her emotions. She died on 3 February 2002, never knowing what had happened to her loving younger son, and never having been able to lay his body to rest.
29 Mr Lyle Allan, the elder brother of the deceased, too has been grievously afflicted by the loss of his brother. I have given attention to his victim impact statement filed with the Court and which is a moving and impressive document. Mr Lyle Allan has been afflicted by the loss of his brother, by the cruel, longitudinal uncertainty of his brother's fate, and by being denied his fraternal right of placing his brother's body in its final resting place and at peace. Mr Lyle Allan devotedly cared for his mother during her deterioration consequent upon the disappearance of his younger brother. Since his mother's death he has moved from the home he and his brother shared because the memories are too painful, and has abandoned his studies towards his Doctorate of Philosophy. I have examined the psychological report by Ms K. Westhorp dated 26 April 2004 tendered this morning, which report spells out that which was implicit in Mr Lyle Allan's own victim impact statement and confirms that which one would expect from experience in the law. Ms Westhorp (paragraphs 14 and 24) diagnoses Mr Lyle Allan as suffering from post traumatic stress disorder and from depression. Following the finality of the trial and sentences Ms Westhorp anticipates (paragraphs 26 and 29) that Mr Allan's condition will slowly ameliorate.
30 Mr Lyle Allan has attended Court every day of these proceedings, now their 43rd day. He has conducted himself with dignity throughout. He is a loving and loyal brother of the deceased and son of his parents. I pay tribute to his decency and loyalty.
31 I turn to the proper sentences to be imposed upon each of you, Mr Cavkic, Mr Athanasi and Mr Clarke.
32 I have given careful consideration to whether in each of your cases I should impose life imprisonment. Life imprisonment with a minimum term is the usual sentence of this State for execution murders.[1] I refer to the relevant cases in the footnote. In the end, I have concluded that it is not appropriate to impose a life sentence upon any one of you for this crime, primarily in order to foster the prospect of rehabilitation.
33 Counsel on the plea did not review the authorities bearing upon the culpability of the procurer and the procured. In R v Robinson, Holt and Merriman[2] O'Bryan J (at 33) stated as to Holt:
"A contract killer capable of killing another human being for money has no conscience, no sense of remorse and is very dangerous to society."
In your case, Mr Cavkic that description is applicable. His Honour proceeded (at 35) as to Robinson:
"Some persons would argue that the guilt of the procurer is more serious than the guilt of the procured."
Grievous though the culpability of the killer is, as clearly stated by O'Bryan J in the passage I have cited, I consider the culpability of the architect of the killing, Mr Clarke's, is even greater. That is because it was you, Mr Clarke - not Mr Athanasi or Mr Cavkic - who conceived of and instigated the killing; it was for your, Mr Clarke's, benefit - not for that of Mr Athanasi or of Mr Cavkic - that the killing occurred; and but for you, Mr Clarke, there would have been no killing. Accordingly I have concluded that the proper sentence to be imposed upon you, Mr Clarke, is greater than that to be imposed upon Mr Cavkic and upon Mr Athanasi. I consider, although their roles and legal characterisations were different one from the other, both Mr Cavkic and Mr Athanasi have equivalent culpability each to the other for this crime of murder.
34 Of the principles of sentencing applicable to each of the three of you, the Court and the community condemn your murderous conduct. Each of you is to be punished for that conduct. Deterrence of others in the community, and deterrence of each of you from further criminal conduct is relevant. Reformation always is important in sentencing. However remorse often is a harbinger of reformation and none of you has any remorse for your conduct. You are not to be punished for your lack of remorse and you are not; but it cannot be called in aid on your behalf in the exercise of sentencing discretion. As I have said, this killing is in the worst category of murder. Further significant exacerbation is the anguish you have caused the loved ones of the deceased first in the hope that he might be alive, then the descent into realisation of his death and finally the denial by your silence to those loved ones still living of interring the deceased's remains in a place of loving quietude and dignity. Although I have concluded that it is not appropriate to impose sentence of life imprisonment upon any of you, it is necessary that substantial sentences of imprisonment are imposed upon you.
35 You, Mr Cavkic, have served 812 days in pre-sentence detention on account of this offence. Pursuant to s 18(4) Sentencing Act 1991 I declare that period of 812 days as already served under the sentence I impose and I so certify. Mr Cavkic, for the murder of Mr Keith William Allan I sentence you to 27 years' imprisonment. I direct that you serve a minimum term of 23 years' imprisonment before becoming eligible for parole.
36 You, Mr Athanasi, have not served any time in pre-sentence detention on account of this offence of murder, because at the time you were charged with this offence (1 November 2002) you were already in custody in relation to the drug offences for which you ultimately were sentenced in the County Court on 4 July 2003 that I have referred to. Accordingly, I make no declaration as to pre-sentence detention in your case, Mr Athanasi. For the reasons I have stated, I consider the proper sentence to be imposed upon you for this offence of murder is the same as that imposed upon Mr Cavkic. However, pursuant to the provisions of sections 14 and 16 Sentencing Act 1991 I must have regard to the effect of the County Court sentences you still are serving. Those sentences were for serious crimes. However I must also, and I do, have regard to the principle of totality to ensure that the end result is just. Accordingly for the murder of Keith William Allan I sentence you, Mr Athanasi, to 27 years' imprisonment. That sentence operates from today.[3] Pursuant to s 16(1) Sentencing Act 1991 I direct that two years of that sentence be served cumulatively upon the sentences imposed by Judge Gullaci in the County Court on 4 July 2003 making a total effective sentence of 29 years' imprisonment. I direct that you serve a minimum term of imprisonment of 24 years before becoming eligible for parole. That minimum term also operates from today. You retain the benefit of the declaration by Judge Gullaci of having served 487 days pre-sentence detention. That declaration applies to both the sentence of imprisonment I have imposed today and the minimum term I have set.
37 You, Mr Clarke, have served 557 days in pre-sentence on account of this offence. Pursuant to s 18(4) Sentencing Act 1991 I declare that period of 557 days as already served under the sentence I Impose and I so certify. Mr Clarke, for the murder of Keith William Allan I sentence you to 30 years' imprisonment. I direct that you serve a minimum term of imprisonment of 25 years before becoming eligible for parole.
38 Remove the prisoners.
[1] R v Pollit (1990) 51 A. Crim. R. 227; R v Robinson, Holt and Merriman, O'Bryan J, 6 April 1995 and Holt and Merriman (1996) 87 A. Crim. R. 82 at 89-90; R v Robinson (1998) 1 V.R. 570; Iddon and Crocker (1987) 32 A. Crim. R. 315; R v Dumas [1988] VicRp 8; (1988) VR 65 at 71; and R v Chatzidimitrou and Freeman (1999) VSC 280 and [2000] VSCA 91; (2000) 1 VR 493 at [51]. See also Kalajzich and Orrock (1989) 39 A. Crim. R. 415 at 464 (NSW CCA.).
[2] 6 April 1995.
[3] As to practice, see R v Rich (No. 2) (2002) 4 V.R. 155 at [106] per Brooking J.A.
DPP
Cavkic, Athanasi & Clarke [2004] VSC 158
(2000) 1 VR 493