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[2005] VSC 97
Supreme Court of Victoria
2005-04-06
OSBORN, J
Original judgment source is linked above.
Murder - Sentence - Domestic killing - Hypoglycaemia - General deterrence - Retrial.
Kay Robertson, Solicitor for the Office of Public Prosecutions
1 Denis Paul Gojanovic, you have been found guilty by a jury of the murder of Angela Farnsworth at Belmont on 12 March 2001.
2 The murder of Ms Farnsworth occurred in the context of the breakdown of a personal relationship between the two of you. After some years living together in what was described as an 'on and off relationship' and increasing difficulties in that relationship you separated. Ms Farnsworth was living at Pavo Street, Belmont with three of her children including the son you had together, Nicholas, who was then 2½ years old. You wanted to assume the role of primary carer for Nicholas and that week refused to return Nicholas to his mother in accordance with agreed access arrangements.
3 On Sunday 11 March 2001 at approximately 9.00 p.m. you left your sister's home in St Leonards and having told your sister you were going fishing, in fact went looking for the deceased. Ms Farnsworth was at that time in the Lord of the Isles Hotel in Geelong. A series of phone calls made by you from your mobile phone demonstrate that you were in the general area of that hotel from approximately 10.30 p.m. onwards. Ms Farnsworth left the hotel at 3.45 a.m. and was walked to her car by a hotel staff member. She then drove to her home in Pavo Street, Belmont.
4 The overwhelming probability is that you followed her home but it is possible that you had driven to her house in anticipation of her return at about this time. In any event, you parked your car around the corner from her home in the next street and shortly after she had returned home you entered the house.
5 Precisely what then occurred is known only to you. You assert in your record of interview that there was an argument. The deceased asked you to get out, she threatened to call the police and she told you emphatically that she would not give up custody of Nicholas to you.
6 Your response was to attack her in a vicious, determined and brutal fashion.
7 Despite a significant advantage in size and weight you were not content to grapple with her, although you asserted to police that there was an initial wrestle.
8 Whether or not this is true, it is apparent not only from your admissions to police but also from the circumstantial evidence as to blood spatter, the injuries that Ms Farnsworth suffered and markings on the wall, that you took up a rubber headed mallet and battered her repeatedly to the head. You hit her both when she was upright and when her head was close to the floor. You struck her squarely in the middle of the forehead and to the crown of the head, to each side of the skull and to the back of the skull. You inflicted a total of six blows to the head, one with sufficient force to fracture her skull. The consequences of this battering are graphically illustrated in the photographs tendered in evidence.
9 You then took a dressing gown cord, wrapped it twice around her neck, twisted the ends of the cord back over each other and strangled her to death, applying pressure for a minimum of 15 to 20 seconds.
10 The ferocious brutality of your attack is further evidenced by a series of bruises and abrasions which Ms Farnsworth suffered, particularly to the arms and hands. (By contrast you yourself suffered only one abrasion to your upper arm).
11 The terror you inflicted upon your victim can be further inferred from the fact that the screams heard at about 4.15 a.m. were sufficient to disturb three neighbours in the house next door in Pavo Street, waking two of them from their sleep. (Indeed I am satisfied that you strangled Ms Farnsworth to stop her screaming. This conclusion is supported not only by the evidence as to her screaming, but by your statement to police that before placing the cord around her neck you had intended to place it around her mouth. The probability that she was conscious at the time of the strangling is further supported by the blood smear pattern on the wall immediately adjacent to her body).
12 Very shortly after the killing you left the scene taking with you the rubber mallet with which you had battered Ms Farnsworth. You disposed of this in a garbage bin on the drive back to St Leonards. On arrival at your sister's house you washed your trousers in order to remove blood from them. You then had coffee and biscuits and stated your intention to take your son Nicholas back to his mother later that morning.
13 In due course you drove with Nicholas to Geelong leaving at about 9.00 a.m. and commenced to lay a false trail by ringing Ms Farnsworth's friend Sue Gladwell at about 9.25 a.m. to ask if Ms Farnsworth was with her. You told her you needed to catch up with Angela that day and that your sister had told you that you could not stay at St Leonards unless you returned Nicholas to Angela. Shortly afterwards, as part of your charade, you arrived at Pavo Street with Nicholas. You were then requested to attend at the Geelong Police Station and to provide a statement to assist police in their inquiries. You did this and made a statement you declared to be true which denied that you were present in Geelong on the previous evening. That version of events was persisted with throughout most of your subsequent videotaped interview, and it was only when it became clear to you that you could not sustain this fabricated account of your movements, that you confessed your involvement in the killing.
14 At your trial it was contended on your behalf that there was a reasonable possibility that at the time of the killing you were affected by hypoglycaemia so as to produce a state of automatism, or alternatively render it possible the killing was accidental or done without murderous intent.
15 It is apparent the jury rejected these contentions and I must of course sentence you on the basis of a view of the facts which is consistent with the jury's verdict. Further, I must not take into account matters adverse to you unless they are established beyond reasonable doubt but may take into account matters favourable to you if they are established on the balance of probabilities.
16 I should record that the jury were entirely justified in taking the view which they did of the evidence as to hypoglycaemia. Although the medical evidence demonstrates that you were at the relevant time a Type 1 diabetic, with a relatively high risk of hypoglycaemia, the evidence as a whole supports the conclusion that you were not hypoglycaemic at the time in issue.
17 The chief aspect of the circumstances of the killing which may be said to mitigate in any way your relative culpability is the fact that it appears probable that you killed in a state of rage engendered by a confrontation over your son Nicholas. This confrontation occurred within the context of the disintegration of your relationship with Ms Farnsworth. This disintegration may be regarded as providing the emotional basis for your rage and violence (although not, as the jury concluded, as providing a basis for provocation such as to reduce your crime to manslaughter).
18 You met Ms Farnsworth in 1995. At that time she had three children aged between 2 and 6 years and had previously been married twice. You lived together at a series of addresses and in October 1998 Nicholas was born. It is apparent that by the year 2000 the relationship had soured and that there were arguments between you as to the perceived inadequacies of each other. On one occasion in July 2000 you resorted to serious violence in the course of such an argument.
19 During 2000 and 2001 you were especially critical of Ms Farnsworth's disposition to gamble on poker machines. It may well be that in part you were particularly sensitive in this regard because following your diagnosis as a Type 1 diabetic more than 10 years earlier and subsequent changes in employment and your bankruptcy in 1989 following a marriage breakdown, you had subsisted with a greatly reduced financial capacity than that which you had previously enjoyed.
20 In addition to complaints and concerns relating to Ms Farnsworth's gambling, you also voiced repeated concerns over the care of Nicholas by her. It must be said however that the evidence does not demonstrate any substantial objective inadequacy on her part in this regard. Moreover, on the Sunday night prior to the killing both your mother and your sister had urged you to return Nicholas to his mother. This circumstance, in my view, strongly corroborates the evidence of a number of independent witnesses (such as that of Ms Farnsworth's neighbours) that the children were in fact loved and well cared for, although it is clear that their mother struggled financially. The evidence to the contrary was unconvincing and came from witnesses whom I do not accept as objective.
21 It is apparent, however, that you did perceive Ms Farnsworth as an inadequate parent for your son and genuinely desired to maintain a close supervisory relationship yourself with your son. Mr Joblin suggests that you may have had particularly strong feelings in this regard because of inadequacies in the relationship which you had with your own father. In any event you felt sufficient emotion concerning Ms Farnsworth and Nicholas firstly, to actively seek to have Ms Farnsworth evicted from her home during the week prior to her death in order to force her to give up the custody of her children and secondly, to refuse to return Nicholas to her at the conclusion of an agreed period of access during this week. It appears you descended to these actions because you perceived Ms Farnsworth as improvident due to her habit of gambling on poker machines and also regarded her as emotionally unstable.
22 Insofar as she is concerned there is uncontradicted evidence that Ms Farnsworth herself would not willingly have given up custody of Nicholas to you and was greatly distressed at the failure to return Nicholas in accordance with the agreed access arrangements. Shortly prior to the killing you had thus materially exacerbated the antagonism between the two of you.
23 It is inherently likely in these circumstances that when you confronted her in her home in the early hours of Monday morning the confrontation was emotional and acrimonious, and that it was in the context of this emotion and acrimony that you lost self-control and deliberately killed her in extreme anger.
24 Upon sentence following a previous trial of this matter Coldrey J reached a similar conclusion having regard to the evidence then before the Court.
"I think the probabilities are that when you entered the house you were already in a highly emotional state. This was caused not only by your anxiety about the future of your son Nicholas, but by your desire to have a prominent role in it. The indication by Ms Farnsworth that this might be in jeopardy translated into anger towards her and, as had happened about eight months earlier, in July 2000, your anger exploded into violence."
25 Although I am satisfied that you went to Ms Farnsworth's house with pre-existing feelings of anger, frustration and antagonism towards her, I also accept that the evidence does not permit a conclusion beyond reasonable doubt that the killing was premeditated.
26 Whilst I thus proceed on the basis firstly, that the killing was not premeditated and secondly, that it occurred in a state of high emotion arising out of the disintegration of your relationship with Ms Farnsworth, there are nevertheless, in my view, five seriously aggravating circumstances associated with your crime.
27 Firstly, the vicious and protracted physical brutality of the killing to which I have already referred and in respect of which no more than passing reference to the photographs of the injuries inflicted is necessary to demonstrate the horrific nature of your attack.
28 Secondly, the selfish callousness of the killing. You knew that not only were you taking the life of another individual but also that you were killing the mother of four innocent children. You deliberately took Ms Farnsworth's life to gratify your own self-centred frustrations and without regard to the inevitable pain, loss, grief and damage that the killing would cause to others.
(You were 36 years old and the father of two children yourself. Your actions were those of an extraordinarily self-centred weak and callous man.)
29 Thirdly, the fact that the killing took place in what should have been the safety of the deceased's home further exacerbates the gravity of your conduct.
30 Fourthly, a further aspect of your crime which may be regarded as aggravating the need for a substantial penalty is the need for general deterrence. I adopt, with respect, what was stated by Coldrey J in sentencing you after the last trial:
"Your background, which is devoid of any prior convictions, together with the very personal nature of this offence, suggests that, in your case, specific deterrence need not be given very great weight. However, violent responses to emotional problems associated with domestic relationships, cannot be tolerated by the courts. Custody disputes are to be resolved by the courts - not by private aggression. The courts have a duty to deter those who may be minded to resort to violence as a problem solving technique. Consequently general deterrence is an important element in any sentence to be imposed."
31 The circumstances with which you were confronted were ones with which many individuals have to grapple. You were faced with frustration at your former partner's behaviour and your failure to obtain the role of primary carer for Nicholas. The Court and the community which it represents cannot tolerate resort to violence, let alone homicidal violence, in circumstances of this kind. The Court must send a clear message to estranged parents that they cannot act as you did and expect to receive other than a penalty which affirms the sanctity of individual human life and condemns in the strongest terms the deliberate taking of another life even in circumstances of strong emotion.
32 Fifthly, a further factor is the total lack of remorse demonstrated by you: firstly, at the time of the killing; secondly, in returning to the scene with your son Nicholas and seeking to deceive police as to your involvement in the killing; thirdly, in your continued and protracted lies to police during the first two hours of the record of interview; and fourthly, in the self-centred terms of your ultimate confessional statements in which you seek to portray yourself as a victim. Indeed you concluded your record of interview in part with the observation that you felt 'relieved' after the killing.
33 Dr Joblin's report and evidence record expressions of remorse to him, but there is no credible evidence of remorse prior to your first conviction for murder in respect of this killing and I am not persuaded that you have ever fully accepted responsibility for what you have done. You no doubt have regretted and continue to regret the consequences of the killing but there is no evidence that you have ever expressed true remorse for what you did to Ms Farnsworth.
34 You are not, of course, to be penalised either for putting the Crown to its proofs or for appealing your initial conviction in this matter. Nevertheless, I concur in the view of Coldrey J that:
"... what is clearly discernible on all the materials is an attempt to deflect your responsibility for this offence and seek to attribute what has occurred to the stresses occasioned by the deceased's parental failures and the deleterious effects of hypoglycaemia."
35 In particular, your ultimate confessions in the record of interview (which followed a deliberate and protracted course of convoluted and evolving lies) sought to cast blame upon the deceased and your defence at this trial has been put forward primarily on the basis that you were to be excused having regard to what was said to be the reasonably possible effects of hypoglycaemia.
36 In the present case all the above matters fall to be considered in the context of sentence upon retrial. Both the previous trial and the retrial were lengthy. The previous trial resulted in a verdict of guilty of murder after some six weeks. Coldrey J sentenced you in September 2002 to a term of 20 years' imprisonment and directed that you serve a minimum term of 15 years' imprisonment before becoming eligible for parole.
37 Subsequently, the Court of Appeal by way of a majority decision set aside your conviction and ordered a retrial. In consequence of this decision, the retrial was conducted over the greater part of the last two months before you were again found guilty of murder.
38 The retrial occurred through no fault of yours and no doubt the strain over a lengthy period of not knowing your fate has been a burden to you. I take that into account in considering penalty but its significance must be muted having regard to the matters to which I have already referred.
39 It also requires little imagination to appreciate the terrible burden the repeated proceedings in this matter have imposed on Ms Farnsworth's family. Her parents, brother and other members of the family have been present throughout the trial and both her father and brother have again been required to give evidence. It is apparent from the demeanour of Ms Farnsworth's family during the course of the retrial that the observations made by Coldrey J when you were last sentenced remain true.
"Angela Farnsworth was aged 31 years at the time of her tragic and untimely death. The Victim Impact Statements from her family describe a family oriented, caring and compassionate person. Each member of her family has been affected by her death. Her parents, Brian and Shirley Denmead, lost not only a daughter but a friend and the only one of their children residing in Geelong. Both have had to cope with unwanted publicity, the trauma of this trial, and a gamut of emotions ranging from anxiety and grief to fear and anger. Not surprisingly their health has suffered. Angela was very close to her brother Chris Denmead, whilst to his wife Kate she was like a sister. Both were devastated by her death. In his Victim Impact Statement, Mr Denmead recounts the health problems which Angela had to confront in recent years. The legacy of this loss to her sister Tracey Dowie has included a huge emotional burden. Apart from having to confront her own pain and heartache there is the added concern she feels for her parents. One result of Angela's death has been the splitting up of her children. It is clear that the elder three children are missing each other and their mother acutely. The effects on Nicholas, who was only two at the time, [are] as yet unknown. In a Victim Impact Statement Adam, the eldest child, describes missing a mother who was his best friend and writes of her love and care for him. Angela Farnsworth's death, and the manner in which it occurred, is something from which her family will never fully recover."
40 The Victim Impact Statements thus fill out what might reasonably have been inferred in any event namely that the loss of Ms Farnsworth to her family is a dreadful one. It is one which is likely to have seriously deleterious consequences for each of the children and cause lasting emotional pain to her parents, siblings and extended family.
41 I turn then to your own circumstances. Mr Gojanovic you are presently 40 years old. You were born in Geelong. Your father is Croatian and mother Italian and your parents came to Australia in 1956. You had a brother 15 years your senior who has been deceased for some years and an elder sister Assia with whom Nicholas is now living. Your father was a shift worker at Ford Geelong and his long hours of employment left little time for parental contact when you were young. Consequently, you were never close. Your father is now mentally and physically disabled. You have had a close relationship both with your mother and your sister. Both remain very supportive of you and you have received regular visits while in custody.
42 You were educated at the Holy Family Primary School in Bell Park and later attended Bell Park Technical School. You completed year 11 in 1981 passing trade subjects. Thereafter, you worked for a shower screen company in Williamstown for two years and for a similar period as a bricklayer's labourer. You then commenced as a courier with the firm "Couriers Please", rising to the position of Regional Manager. In late 1987, having earlier been diagnosed with diabetes, you could no longer continue that work. Once your condition had stabilised you worked for the Ford factory in Geelong until 1989. This was your last full time job. You are a self-taught guitarist and from 1981 you played throughout Victoria in various bands with titles such as Physical Graffiti, Too Hot to Handle and Yard Dogs. In 2001 you were a member of a band called The Bite. You were also teaching music with a firm A & B Music.
43 As a result of a relationship which you commenced in 1985 a son Daniel was born in November 1986. That relationship ended in 1989 and having ultimately obtained custody of Daniel you stayed at home to look after him. Subsequently from the time Daniel was 3 years old his upbringing was undertaken by your parents. As a result of the separation from your then partner, the financial burden of house payments and Family Court costs caused you to become bankrupt in 1989 which as I have said is the year in which you last held a full time job.
44 Mr Joblin reports that your desire for a good relationship with your son Nicholas was attributable to awareness of the lack of a positive father son interaction in your own childhood. You now feel very keenly that through your actions you have destroyed that objective. Mr Joblin further states that you are not psychotic and have no further psychological problems. Further, he regards you as having a good intellect.
45 A number of other people have also provided written references which were tendered on your behalf and the transcript of evidence given by a number of witnesses upon the plea before Coldrey J was also tendered to me. Members of the family who operated the Blue Seas Café and became your friends describe you as a caring, kind, generous man with a gentle manner. Evidence from other members of the community who knew you is to the same effect.
46 Dr Sowerby, your GP, writes of you being a caring father. He had never seen you in an angry or aggressive mood and in effect he regards this offence as out of character. Dr Sowerby also speaks of the support that you gave Ms Farnsworth with her medical and psychological problems.
47 You have no prior convictions and in summary the evidence of a number of persons supports the view that you have generally been of good character and I accept that, save in your relationship with Ms Farnsworth, this has been so.
48 A reference from your employer indicates that you were an asset to the music school in which you taught and a highly committed teacher.
49 Your conduct during the extended time you have now been in custody also supports the view that you have it in you to be a good worker and to apply yourself to your rehabilitation.
50 As I have already indicated you have no prior convictions whatsoever. This, together with your generally non-violent history, your work record, your contribution within the community generally and your level of intelligence indicate that your prospects of rehabilitation are good. These matters also bear upon the weight to be given to specific deterrence.
51 You are also fortunate in having the ongoing support of your family and friends to whom the process of retrial has also no doubt occasioned significant stress, but who may also be said to collectively enhance the prospects of your rehabilitation.
52 The fact that you suffer from Type 1 diabetes with an ongoing risk of hypoglycaemia was also raised as a matter to which the Court should have substantial regard in sentencing you. It was submitted that this will render a custodial sentence materially more onerous than it would otherwise be firstly, because of the increased risk of hypoglycaemic attack and secondly, by reason of your continuing psychological vulnerability.
53 I do not accept that you are at a greater risk of suffering harm from hypoglycaemic attacks while in custody than you would be if at large in the community. The medical evidence supports the view that you are at ongoing and increasing risk of both hypoglycaemic unawareness and in turn hypoglycaemic attacks whether or not you are in custody. Further, although on the one hand you will not have the direct support of family and friends while in custody, on the other you will have the benefit of ongoing supervision and a regular lifestyle. Conversely the evidence is that the irregular lifestyle formerly adopted by you placed you at particular risk of hypoglycaemic attacks.
54 Those now having responsibility for you in custody are of course subject to a duty of care and there is no evidence to justify the conclusion that there is a real risk that they will fail in fulfilling that duty. Insofar as reference was made to prison records during the course of the plea, those records demonstrate an ongoing awareness of and response to your needs. Evidence was given by Professor Nicholson that the medication which you are currently receiving is not the optimum now available. There is no evidence, however, that if his suggestions are taken up with those treating you, such medication can not be provided while you are in custody. I suspect that whether or not you are in custody the chief problem that you face in this regard is a lack of financial capacity to purchase medication which is not government funded. Moreover the probability is that the medication available for your condition will improve over time whether or not you are in custody.
55 I also do not accept that your ongoing vulnerability to hypoglycaemic attack places you in a category of emotional or psychological vulnerability such that a materially reduced sentence is justified. Type 1 Diabetes is not an unusual condition and the evidence at your trial demonstrated a person may live successfully with it for very many years.
56 The last matter which bears on the penalty which is appropriate to your case is the fact that upon previous conviction for the murder of Ms Farnsworth you were sentenced to be imprisoned for a period of 20 years with a minimum non-parole period of 15 years. The authorities such as R v Chen[1] establish that I must exercise my discretion having regard to the circumstances now before me. Nevertheless the fact and practical effect of the sentence previously imposed by Coldrey J are matters that I should take into account.
57 The authorities make clear that I should not impose a higher sentence unless there are specific reasons for so doing. It is in the public interest that the process of appeal with respect to any unfairness in a trial should not ordinarily carry with it the risk of a heavier sentence upon retrial, nor should there be any appearance of punishment for the fact of appeal.
58 In the present case there are no special circumstances which in my view would justify a heavier penalty than that imposed by Coldrey J. Moreover in my view the penalty previously imposed by Coldrey J remains entirely appropriate. I have formed this view having regard to the principles stated in the Sentencing Act 1991 and the circumstances of your case including in summary the following.
59 As I have said I accept that I should proceed on the basis that the killing was not premeditated and occurred in the context of the breakdown of a domestic relationship and during a confrontation over custody of your son. Further, I accept that you have no prior convictions and have generally been of good character and have demonstrated a capacity for applying yourself in prison. You have also been subjected to the stress of a retrial. I do not, however, accept that your susceptibility to hypoglycaemic attacks justifies a materially reduced sentence. Nor do I regard the above matters as substantially offsetting the fundamental seriousness of your crime and the aggravating features of your conduct which I have identified, namely the extreme brutality and callousness of the deliberate killing undertaken by you in Ms Farnsworth's home, the consequential harm to others, the real need for an element of general deterrence in the sentence and your apparent lack of genuine remorse.
60 I am fortified in my conclusion by the previous decision of Coldrey J and particularly so having regard to his experience and expertise, nevertheless I have ultimately arrived independently at the view that the penalty imposed by him is appropriate on the evidence as it now is and having regard to the matters to which I have referred.
61 Denis Paul Gojanovic I sentence you to imprisonment for a period of 20 years for the murder of Angela Farnsworth. I fix a minimum period of 15 years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 1,486 days inclusive of today's date. I direct that such declaration be noted in the records of the Court.
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Gojanovic \[2005\] VSC 97