R v Gazdovic [2002] VSC 485

Supreme Court of Victoria|2002-11-06|Before: COLDREY J

SENTENCE - Incitement to murder offender's wife and sister (Counts 1 and 2) and incitement to intentionally cause serious injury to offender's brother in law (Count 3) - Agreement made with undercover police officer - Withdrawal from enterprise prior to date of proposed consummation - Prior good character - Excellent prospects of rehabilitation - Need for denunciation and general deterrence - Offender sentenced to 5½ years on Counts 1 and 2 and 3½ years on Count 3 - Total effective sentence 5½ years with a non-parole period of 2 years.

In order to sentence you for these offences it is necessary to place them in perspective. That involves not only an examination of the circumstances surrounding their commission, but also an understanding of your own background.

You are presently 55 years-of-age, having been born in Croatia in November 1946. You have a brother and sister residing overseas. After nine years of education you worked on a farm operated by your father. At the age of 18 you served in the army for 18 months and later you worked in salt mills. In 1969, you migrated alone to Australia, and subsequently, in 1970, you commenced a relationship with your first wife, Najelka. She already had two children, and there were two children from your union. In fact, you did not marry her until November 1985, and in 1996 you were divorced. It was suggested that you and your wife drifted apart and the final separation was an amicable one. Indeed, Mrs Najelka Gazdovic told the court that she still loved you and would support you in the future. She praised your parenting, not only of your natural children, but also of your step-children. This theme was reinforced by your daughter Marijana Perik, a most impressive witness, who described you as a fantastic dad, and also by your friends, Stjepan and Marija Cosic. All these witnesses attested to your capacity for hard work.

Your places of employment included the Ford Motor Company, International Harvester and Henderson Springworks prior to establishing your own concreting business. This you operated for 20 years. It was hard work. You spent the daylight hours on the job, whilst in the evening you prepared quotes and arranged necessary materials. Your dedication to work resulted in your ownership of the family home in Vines Road, Hamlyn Heights. You have also been a contributor to the local Croatian community in Geelong. You worked on the local Croatian hall and assisted community members with concreting and other odd jobs. In particular, you made a significant contribution to the North Geelong Soccer Club. For a period of time you were treasurer. Additionally, you would take junior players on soccer trips, were active in club social functions, putting on spit roasts and operating the bar. For many years you were a regular attender at the Holy Family Parish Church in Geelong. You have no relevant prior convictions.

All the character witnesses spoke of the high esteem in which you were held by the Croatian community, and they expressed the view that these offences are totally out of character. There is no doubt, on the material before this court, that you are genuinely remorseful for what has occurred. All of the witnesses offered you their continuing support.

This leads to the question of how a man with your background became embroiled in these offences. In 1998 you visited Croatia, where you met Katica Marenjak in the village of Ordania. She had two sons from a previous marriage, the younger named Dejan, being then aged about 14. You asked her to marry you, and in July 1999 she entered Australia on a temporary visa. Her son Dejan accompanied her, and you lived together as a family in your Hamlyn Heights house.

About two months after Katica's arrival you married. It seems clear that the relationship was a happy one during the first year. You paid for Katica and Dejan to come to Australia, and the material indicates that you supported them well financially. In addition, you sent money to your wife's elder son in Croatia.

Unfortunately, when you had initially returned from your 1998 visit to Croatia, you had contracted both Hepatitis A and salmonella enteritis. The latter subsequently developed into salmonella osteomyelitis, which affected your lumbar spine. After a period of hospitalisation, you were able to resume your occupation as a concreter, but it appears that your health again deteriorated, particularly your back, and you became unable to work. This was undoubtedly a great blow to your self-esteem. It generated and coincided with other factors which caused your marriage to deteriorate. For example, it created financial stresses as the source of income dried up. One effect of this was the desire of your wife, perhaps understandably in the circumstances, to attain some financial security by having the Hamlyn Heights home transferred into joint ownership. This you declined to do, having regard, amongst other things, to the claims of your broader family. You assert that your wife threatened to commit suicide and leave a note blaming you if you did not comply with her wishes, and this caused marital tension.

Although I have not heard Mrs Gazdovic's response to this allegation, I note that reference is first made to the matter in an intervention order application dated 6 September 2001 taken out by you against your wife.

Another cause of marital disharmony, according to the evidence of Ms Grazia Shrimpton of the Migrant Resource Centre in Geelong, was your inability to facilitate the migration of your wife's eldest son to Australia. Whilst this was beyond your control, it was Ms Shrimpton's view that your wife held you responsible for this failure.

The preponderance of evidence is to the effect that as you became debilitated and incapacitated and insecure you turned to alcohol as a solace. You acquired a conviction for exceeding .05. By November 2001 medical tests indicated that you probably had developed cirrhosis of the liver. Your drinking in turn led to arguments with your wife. Although I accept that you are not by nature a violent person, the evidence indicates that on a number of occasions these arguments spilled over into assaults upon your wife, usually the slapping of her face. Your feelings of insecurity were, in my view, manifested by your endeavours at one stage to isolate your wife from her friends and relatives to keep her at home, whilst at another time, as the intervention order indicates, you sought to have her leave your house. There is no doubt that you were concerned about your marital situation. On a number of occasions you rang your wife's brother, Paul Pavlak, seeking to discuss your problems. In effect, he told you that it was your marriage, you had to sort out the difficulties.

Ultimately, about the end of September your wife and stepson left the Vines Road house and went to reside with her sister Anna and husband Josip at 4 Selma Street, Corio. You were extremely upset by this turn of events. Your perception was that this couple were interfering in your marriage and death threats were uttered by you against them. You also threatened to kill your wife unless she returned home. Her response was to obtain an intervention order against you. None of the events I have detailed are the subject of charges against you, but they provide the necessary background to understanding these offences.

Subsequently, you met a man named Leigh Eastick. There was conflicting evidence as to when and through whom the introduction was effected. However, the evidence indicates that you engaged him to commit a sham burglary on your house in order to found a false insurance claim. Despite your denial in the police interview, I am satisfied that the insurance payment was to be used to fund someone to kill your family. The burglary occurred in the early hours of 15 December. On 16 December you verbally informed your insurance company of your claim. On 18 December, Eastick, having been intercepted by the police, telephoned you at their direction and advised that a person named John, who had killed people before, would contact you between 4.30 and 5 p.m. You were also told that John had been in gaol with Eastic and was a very tough man.

At 4.40 p.m. an undercover policeman using the name John George contacted you before visiting you at Vines Road. Your conversation with John was recorded. In it you discussed the killing of your wife Katica together with Anna and Josip Simunovic by bashing or shooting. Their respective sons were also to be killed if they intruded on the proceedings. You supplied a photo of your wife and her sister Anna and drew a plan of the Selma Street house. Your anger towards your wife stemmed from her having left home, and towards her relatives for, as you saw it, interfering in your marital affairs. The price to be paid varied from $25,000 to $35,000, depending on the number of persons killed. You were to endeavour to obtain a $5,000 deposit with the balance to come from the proceeds of the sale of your house which you had placed on the market on 23 November.

You told John that you believed you could only raise $1,000 initially. You made several phone calls, including to your daughter, Marijana, in an unsuccessful endeavour to borrow the money. On 19 December you were driven by your friend Skipan Kosic to the National Australia Bank, North Geelong. Using your passbook account and Visa card, you obtained $1000, and, in a telephone conversation, John was notified of this fact. Eventually, a meeting was arranged in Hamlyn Park, in the vicinity of your home. You handed over $1000, as well as two further photographs depicting your wife. Following the meeting, you had John drive past the Selma Street address.

You reiterated that you wished the two women to be killed quickly, but you now said that you wanted Josip Simunovic to survive. However, you wished him to suffer. You mentioned breaking his arms, legs and head. Similarly, you now instructed John that if either of the sons got in the way, they were to be maimed rather than killed.

During the course of this conversation, John was subjected to a diatribe about the money you had spent on Katica and her son. At this stage, you were urging John, who was not going to perform the killings personally, to arrange for them to occur before the weekend. Told that this would be impossible, as planning was required, you requested that they be done by Christmas. You asked that you be informed the day before the event was to occur.

So matters stood until your next contact with John, which was on 22 December. On this occasion, you told John that your wife and son had moved from the Selma Street address to an unknown venue. This was untrue, but it had the desired effect of frustrating the operation. You told John not to go to Selma Street, and called off any action against your sister-in-law and her husband. As for your wife, you spoke of bashing her, in the course of a robbery, if you located her, although nothing was to happen until after the new year.

Your motives for withdrawing from the initial enterprise may have been mixed, and your attitude ambivalent, but I am satisfied that by this stage you had had second thoughts about the enterprise.

In a record of interview, conducted after your arrest on Christmas Eve, you reiterated your resentment and anger at your wife leaving you after your financial support for her and her family, and at the perceived encouragement of her relatives Anna and Josip. You further told police that you had changed your mind, from having your wife killed to having her bashed. You described your actions as silly, and expressed your sorrow for them. You also spoke of your desire to have your wife return.

The comprehensive psychiatric report prepared on your behalf by Dr Barry Kenny, states that you have no psychiatric or psychological problems. Your actions are described as a gross error of judgment of which you are now acutely aware. You attribute your initial intention to a combination of sadness, anger, and confusion at the outbreak of your relationship. Dr Kenny expresses the view that your impaired physical health may also have contributed to your flawed decision.

Dr Kenny notes your change of mind before any actual harm was done. The reality, of course, is that no actual harm could have been done, in the circumstances. However, knowledge of your initial intention, short-lived though it may have been, has had some effect upon the potential victims.

In the victim impact statements tendered to the court, your wife Katica, and Anna and Josip Simunovic, speak of emotional trauma, resulting in sleepless nights, requiring medication, and a tendency to look over their shoulders. Katica also writes of having consulted a psychologist. Her son John has been similarly affected. Although you profess to still love your wife, any reconciliation would appear to be impossible.

You have been in prison since December 2001. Your poor state of health resulted in your almost immediate hospitalisation. The disabilities included the previously mentioned Hepatitis-A, and chronic liver disease, as well as diabetes. You remain unfit to attend any work in prison.

While in prison, you have endeavoured to improve yourself. You have completed a Kangan TAFE course in Reading and Writing, and undertaken an Alcoholics Anonymous program. This activity is to your credit.

A letter from the prison chaplain at Port Phillip Prison, Sister Monica Weedon, records your regular church attendance, and notes your love and respect for your first family, and for the community in which you have lived.

I have already referred to your history of hard work, your effectively unblemished past of over 50 years, your remorse, your contribution to the community and the ongoing support of your peers. All these factors indicate that your prospects of rehabilitation are excellent. In the circumstances, the principle of specific deterrence does not need to be given any significant weight. Additionally, you must be given credit for your pleas of guilty.

All that being said, these offences, although not frequent, are serious ones. Any overall sentence imposed must reflect the need for denunciation of this type of conduct, it must also be designed to deter others from seeking to pursue such a course of action to resolve domestic and other problems. However, like all offences, there are degrees of gravity. In your case, the major mitigating factor and one which distinguishes it from a number of other cases of this type is your decision to abandon the enterprise prior to your arrest. Your conduct appears to have been a relatively brief aberration, occurring at a time when you were at a low ebb mentally and physically. Indeed, the Crown very fairly placed your offending at the lower end of the scale of seriousness for this type of crime.

Although it will be open to order cumulation of the sentence imposed, I intend to treat these offences as covering the one incident and reflect the gravity of that incident in the total effective sentence. I am also of the view, because of the various mitigating factors, to which I have referred, I should fix a lower than normal period of imprisonment before you become eligible for parole.

Accordingly, balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, denunciation, general deterrence and rehabilitation, I have concluded that the appropriate sentence on each of Counts 1 and 2, being incitement to murder, is five and a half years, and on Count 3, being incitement to intentionally cause serious injury, is three and a half years. Those sentences are to be served concurrently, making a total effective sentence of five and a half years. I fix a period of two years before you become eligible for parole. It is declared that a period of 318 days, inclusive of today's date, be reckoned as the period of detention already served under the sentence. I direct that there be noted in the records of the court the fact that such declaration is made and its details.

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