R v Koljatic-Bestel [2011] VSC 124

2 The maximum penalties prescribed in respect of each of those offences are,

• incitement to commit serious injury - 20 years imprisonment;

• obtaining property by deception -10 years imprisonment;

• possession of a drug of dependence - five penalty units.

3 On 14 September 2010, you were arrested by police and remanded in custody. The matter was resolved by the time of your committal mention on 14 January of 2011 where you indicated your intention to plead of guilty to these offences. A plea was listed and heard before me on 28 March 2011. There is no doubt it can be described as an early plea as well as a strong indication of remorse and I will treat it as such.

4 You are 32 years of age, you have no prior convictions and you are the mother of two young children. You are a relatively unusual person to be standing before the court for sentencing on matters of this nature. The sentence in this matter was delayed at your request to enable your ex husband to place material before the court to indicate that he has forgiven you for this offending in which he was the intended victim.

5 The circumstances of the offending are set out in the Crown's opening, which is Exhibit 1 on the plea. To understand the offences a little background material is required. The victim of the incitement charges, as I earlier said, is your husband, Antoine Bestel. You met your husband when you commenced working for him part-time in a restaurant he had and then full-time in a bar and restaurant, you were quite young at the time you initially met him. You and your husband lived together for some time, ultimately marrying a short time before you had your first child in approximately 2003. You had, at the time of this offending, two children aged 7 and 5 and by November of 2009 you had separated from your husband, due to allegations of domestic violence towards yourself and your children. There was unfortunately a significant and bitter custody dispute relating to the two children that was on going at the time of this offending. Intervention orders were sought, granted and broken and it would appear it was a most unpleasant time.

6 In approximately February of 2010, you met and formed a friendship with a man by the name of Robert Micevski. That relationship continued for approximately six months. Charge 1 relates to your requests to Micevski, after you had been in a relationship for a couple of months, to see if he could help you by "sorting out your husband", which included requests to do this in the following terms, by giving him "a good bashing and break some bones", "would you do something", "I need something done", "can you organise something", "I've spoken to others, they won't do it, they're shit". Micevski clearly was unwilling to do anything, but did say he would ask around to see if he could locate someone who could do it. It is agreed that during this time you continually asked if he knew someone who could do what you requested. You gave to Micevski two passport photos of your husband as well as his business card with his business address on it.

7 Charge 3, the second charge relating to incitement to cause serious injury, related to your meetings with a man by the name of Mark Laver who was a friend of Micevski. He had told you that he knew someone who would do it and he drove you to meet Laver at around midnight on a Friday or Saturday night. You spoke to Laver, informed him of the problems you were having with your husband and asked him if he could, "fix him up". You further stated, "I don't care if they have to bash him or get rid of him anyway they can". You also told Laver that you feared for your life, which was why you had to get rid of him. You were described as "worked up", "enraged" and "desperate". You pulled out two photos of your husband as well as his business card but Laver indicated he could not help you and that he did not know anyone else who could.

8 In relation to this, you said to Laver that you didn't want your husband just "touched up you wanted him done over properly". It was as a result of this material and your actions, together with your behaviour around that time, that on 4 August 2010, Micevski and Laver decided to tell Antoine Bestel what you were planning. They attended at his business address and informed him. Mr Bestel stated he was shocked and denied ever hurting you or his children and reported the matter to the Northcote Police Station ,which ultimately, led to Charge 4, the charge of incitement to murder.

9 As a result of Mr Bestel contacting the police, on Friday 13 August 2010 covert operative 215 contacted you on your mobile phone, informing you that he could help you with your problem. What followed from there was a series of contacts by the covert operative to you over a period of a month. I am informed on the plea, and it is not disputed by the Crown, that the covert operative was the one who initiated all contact, that the covert operative left numerous messages requesting that you return his calls, which you did not comply with, and, although it could be described that the covert operative made "all the running" in the contact in respect of this charge, you still made some statements, which were recorded, indicating your desire for your husband to be killed. However it should be noted that you did not have the money required, nor did you provide any of the money required to the covert operative. There is no evidence that you actively sought the money to pay him. It appears from the materials that a lot of the talking and proposals were in fact made by the covert operative.

10 You drew the layout of your husband's business premises and gave the covert operative six passport-sized photos of your husband. You confirmed on a number of occasions that you wished to have him killed. Although I accept that you made some statements indicating that you were willing to have your husband murdered it, does appear that the majority of the material and statements in respect of your husband being killed or murdered came from the covert operative. There is no doubt that the covert operative was put into action as a result of your behaviour and requests in respect of Charges 1 and 3 but there certainly needs to be some amelioration of the penalty, as clearly, the covert operative was the main protagonist in respect of this charge. Whilst I have no doubt you were in agreement, I am not entirely confident that the first suggestion in respect of your husband being murdered came entirely from you, that fact should and will have an impact upon the appropriate penalty to be imposed.

11 Charge 5, the theft of a coffee machine, arises in relation to Charge 4, the charge of incitement to murder in that you had been provided, under an agreement with the Blue Pod Coffee Company, with three coffee machines for your use on the basis that you continued to purchase Pods to use in those coffee machines, and the property in the coffee machines stayed with the Blue Pod Coffee Company and never transferred to you. During your discussions with the covert operative Nikoli, you offered to him a Lavazza brand coffee machine, which came from the Blue Pod Coffee Company and which was valued at $1,400, as an indication that you were serious. This occurred during your discussions about your inability to provide or obtain the money required by the covert operative to pay for the murder of your husband. The conversation is at page 197 on the depositions and it says:

Nikoli: If I say to you it worries me then we go ahead.

Venessa: I can give you a brand new coffee machine that I got yesterday.

Nikoli: Nah.

Venessa: As a present, a gift so the boys think - they know that its serious.

Nikoli: How much is that worth?

Venessa: That's worth $1,400. Straight out. It's not even at the shops it's from Lavazza.

Nikoli: I ask if they are interested.

Venessa: Your most welcome.

Nikoli: Yeah.

Venessa: I could give you as a gift now.

12 The circumstances of the obtaining by deception, Charge 2 on the indictment, relate to activities you undertook between 22 June 2010 and 6 July 2010 all relating to an Aussie Farmers Direct Account. You had previously, on two occasions, set up accounts for yourself but using your ex-husband Antoine Bestel's credit details via direct debit authorities. They are not the subject of charges, but the subject of charges is that you did that again on 22 June in relation to the name of Larry Habchi with a direct debit authority from Antoine Bestel's business bank account. You ordered a total of $1,248.84 worth of goods during that time which have not been paid. You set up another account between 31 June 2010 and 13 July 2010, another Aussie Farmers Direct Account, this time in the name of Desiree Bestel. You again set up a direct debit authority from Antoine Bestel's business bank account and a total value of $3,826.78 worth of goods were ordered during this time. Neither of those accounts have been paid. The total owing by you to Aussie Farmers Direct is $5,175.62. You were arrested on 14 September 2010 and the police located various items including a very small amount of cannabis which is the basis of Charge 6.

13 I have made a disposal order in relation to the cannabis. There is a compensation order for the moneys outstanding to Aussie Farmers Direct and a forensic sample order pursuant to s 464ZF2.

14 I have been presented with a psychological report prepared by Dr Simon Kennedy which is Exhibit 2, to which I shall refer shortly.

15 You are 32 years of age having been born on 1 July 1978. Your father is 65 and still works full-time as a machinist in a knitting mill. Your mother, Bjelka, is aged 54 and works full-time as a care attendant at Kew Cottages looking after intellectually disabled residents. Your brother Stephen is 31 and works as a manager of a pre-cast concrete company. All of them came to court to support you. None of your family have ever been in trouble with the police and you yourself have no prior convictions. Your parents are both from Croatia - they came out separately to Australia and met here. Your grandmother is alive and still lives with your parents. You grew up in Thornbury and attended St Josephs Primary School followed by Santa Maria College in Northcote. From Santa Maria College you commenced a hairdressing apprenticeship with a company called Lamaz in Northcote. You completed that and in 2001 you bought into a partnership of a hairdressing salon called Hair Section in Elwood. You worked to try and build up the business and you also worked part-time as a waitress at a local pizza restaurant La Porchetta and another restaurant that was owned by your husband-to-be Antoine Bestel - you did that to assist your finances whilst you were building your hairdressing business. You eventually gave up the hairdressing business for a period of time and worked full-time with Mr Bestel. In 2009 you set up a children's hairdressing salon called Kidz Kutz in Thornbury which was successful until your arrest.

16 You originally met Antoine Bestel when you were quite young, about 14 or 15 at the salon to which you were apprenticed, in that he was a friend of your employer. You lost contact with him until you commenced working part-time for him at his restaurant. He is approximately 12 years older than you.

17 Whilst you were working with your husband in his restaurant you became romantically involved. You had left home at the age of 18 and, as indicated, worked in hairdressing. You returned home in your early 20s, for a period of time and when you were 22 ,you left home again and moved in with Antoine Bestel. You had by that stage been working for him, then together you ran a restaurant and bar in King Street, although, ultimately, this was not a successful business and it was sold.

18 You became pregnant with your daughter, Tabatha, and you married Antoine Bestel, approximately a month before she was born in 2003. You had another child Xavier, who was born in 2004. Between 2003 and 2009 you stayed at home to care for the children. You had returned to the Thornbury area, after the children were born, to enable your mother to provide you with assistance. There were problems in your marriage that were on-going. The children had illnesses, you described your husband's behaviour, to Dr. Kennedy, as not supportive and that he continued to go out and live the equivalent of a single lifestyle, whilst you looked after the children. He continued going clubbing, using cannabis and other drugs, whereas you had ceased clubbing and all use of drugs, during your pregnancies. You reported to Dr Kennedy that, in 2008 you felt quite depressed and began drinking. You were in a dire financial situation, as your husband was by that stage on unemployment benefits, and you said, there was regular verbal and occasional physical abuse from your husband, directed towards you.

19 In November 2009 your husband came home in a condition that you described as being "off his head on cocaine", your children were at that point at your parents and you sought and were granted an intervention order in respect of him. It would appear from that time on, you and your husband had what could be best described as acrimonious custody dealings.

20 It was with that background that the offending occurred. The report from Dr Kennedy also outlined the problems that which had been occasioned by your use of cannabis, methamphetamine which you say was introduced into your life by Macevski. You had previously used cannabis from about the age of 15 and then cocaine and ecstasy with your husband on a regular basis, until your pregnancy. You recommenced the use of these drugs as well as amphetamines between 2008 and 2010. You described yourself as being caught up in the chaos of being taken to court constantly with your husband threatening and trying to obtain custody of the children, working long hours in the hairdressing salon and trying to support the children. You described it as being involved with people and drugs and making the wrong choices.

21 You are currently taking anti depressant medication and anti psychotic medication for sleep and anxiety rather than for anti psychotic reasons. You are described as a person with a vulnerability to substance abuse, combined with low cognitive functioning. It is clear that you and your husband both overindulged in illicit drugs, and he continued to do so, even after you had the children. In a volatile custody situation you have behaved very badly, and tried to get others to do illegal things to your husband. I accept that is not your normal behaviour and that it is out of character for you. I note that after you were incarcerated for these offences, the custody of children went to your parents, it being apparent that your husband no longer sought custody once he had the opportunity.

22 In a most unusual situation your husband, the victim of Charges 1, 3, and 4 has provided evidence to this court that you have his unconditional support. He has been to visit you in prison, and had come to terms about the custodial situation of your children. He admitted, in his statement to the court, to having a history of drug taking and said, he became concerned about the amount you were drinking and the drugs you were using in 2008 - 2010. He was of the view that this was all related to post natal depression, or some psychiatric problem, a view which he is unqualified to express and which I shall not act upon. The report from the psychologist indicates that you do not have significant mental health issues, but have concerns in respect of anxiety, depression and substance abuse.

23 The forgiveness of the victim of the crime is a factor that a court can take into account, particularly where that is a genuinely held view and one that indicates good prospects for a civilised and decent ongoing relationship between two people who will have to deal with each other as parents of two young children. Accordingly it is a factor that I will take into account in your favour in the sentence that I will impose.

24 I also take into account in your favour your plea of guilty, the very early stage at which it was indicated, your genuine remorse, your lack of prior or subsequent convictions, your excellent prospects of rehabilitation, the responsibility that you have for the upbringing of your two children, the volatile custodial situation in which you had been placed, and the significant and ongoing family support available to you. I must balance that against the offending to which you have pleaded guilty, and the seriousness of that offending, and impose a just and appropriate punishment.

25 In the recent decision of the Court of Appeal of Natale v R,[1] Maxwell P, Ashley and Bongiorno JA's referred to the fact that current sentencing practices for incitement to murder revealed a spread of head sentences ranging from five-and-a-half to eight years imprisonment.

26 In light of the circumstances that I have found in this case and outlined earlier, you fall to be sentenced at the lowest possible level of the range of offences of this type, even if this falls below 'current sentencing practices'. I am cognisant of the sentences referred to in Natale v R and this case requires a significant penalty than those referred to in the decisions.

Charge 1 - incitement to cause serious injury - six months imprisonment

Charge 2 - obtain property by deception - 2 months imprisonment

Charge 3 - incitement to cause serious injury - nine months imprisonment

Charge 4 - incitement to murder - 3 years imprisonment

Possession of a drug of dependence - 2 penalty units

28 I direct that Charge 4, the incitement to murder, is the base sentence and that 2 months of the sentence on Charge 1, and 3 months of the sentence on Charge 3 be served cumulatively upon each other and upon Charge 4, making a total of 3 years and 5 months imprisonment. I direct that you are to serve a period of 1 year and 7 months before becoming eligible for parole.

29 Pursuant to s 6AAA of the Sentencing Act, I declare that but for the plea of guilty the sentence would have been 4 (four) years and 6 (six) months with a non parole period of 2 (two) years and 9 (nine) months.

30 Declare that there have been 260 (two hundred and sixty) days pre sentence detention served in relation to this matter and direct that such be noted in the records of the court.

32 Application for the taking of a forensic sample 464 ZF(2) is granted.

33 Compensation Order in the sum of $5,175.62 is granted, payable to Aussie Farmers Direct, 534 Church St Richmond.

[1] [2011] VSCA 28.