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1 You, John Kostov, have pleaded guilty before me to one count of attempted murder and to one count of aggravated burglary. The maximum term of imprisonment on each count is 25 years' imprisonment. These crimes arise out of circumstances which took place at Tarnagulla, near Bendigo, on 24 September 2003. At that time your former wife, Leanne Elliott, and the three children of her marriage to you, who were then aged eleven, seven and six years respectively, lived in a home in Clyde Street, Tarnagulla.

2 By way of background, you were married to Leanne Elliott in 1988, and in 1996 the family moved to Tarnagulla. It is apparent that the marriage between you and Leanne Elliott was an unhappy one and there was a significant amount of conflict between you and your wife. There had been a period of separation early in the marriage but you and Leanne resumed your relationship shortly before the family moved to Tarnagulla. Regrettably, the relationship did not improve and by November 2001 your wife determined that the relationship had broken down irretrievably and you left the home. During 2002 your wife formed a relationship with Mark Nicholson. As the material before me reveals, that relationship caused some jealousy on your part. Mr Nicholson did not, however, live with your wife at Tarnagulla during that period, although on occasions he did stay overnight.

3 Divorce proceedings were instituted by your wife on 12 August 2003. The application was served upon you on 30 August 2003. The application noted that the proceedings were fixed for hearing at 11.30 am on 24 September 2003 at the Family Court in Melbourne. Leanne Elliott left the family home at about 6.20 pm on the evening of 23 September and stayed overnight at her mother's home in Reservoir. Her friend, Mark Nicholson, agreed to look after your three sons that night and agreed to stay at the home of Leanne Elliott in Clyde Street, Tarnagulla for that purpose. He went to bed at about 10.00 on the evening of 23 September 2003. The next thing that he recalls is waking up to the noise of dogs barking. He observed that a bedside clock recorded the time as 4.00 am. He yelled out to his dogs to stop barking and then dozed off for a brief period of time before the bedroom light came on. He looked up and there he saw you standing at the doorway staring at him. He observed that you had an axe in your right hand. With both hands you then swung the axe into the air above his head and said, "I'm going to kill you, you fucking cunt". You swung the axe towards his head. He jerked his head to the right and the blade of the axe brushed his hair, hitting him at the rear of his left shoulder blade. That blow caused him extreme pain. You said repeatedly that you were going to kill your victim and again lifted the axe above your head with both hands. The victim thought that you were going to strike his head but instead the blade went straight into his right leg above the knee, shattering his right femur. Your victim attempted to grab the axe from you. However, he could not stand up because of the severe injury you had caused to his right leg. He fell to the floor. You swung another blow at him with the axe but it missed. Your victim was able to grab the axe and a struggle took place.

4 At about this time, your son, Alexander, who was then aged 11 years, walked into the room and was observed by you. You screamed at him and told him to go to the kitchen and get a yellow handled steak knife. It is quite clear from the material before me that Alexander was frightened and for that reason did as he was told by you, his father, and returned with the knife. You then commenced stabbing motions towards your victim in order to dissuade him from holding on to the axe. You said, "If you do not give me the axe I will stab you". You slashed him with the knife although it did not cause him more than minor lacerations. You were demanding that he let go of the axe. Ultimately, your victim did let go of the axe and commenced to back away. You raised the axe again in another attempt at striking but you missed. It seems that at about this time the presence of Alexander and the calm courage of your victim brought some calmness to the terrifying scene. Your victim continued to talk to you to try to humour and calm you and to persuade you to cease the attack upon him. Alexander fetched a towel for your victim to wrap around his leg. Thereafter it would appear that the presence of Alexander and the persistent pleas of your victim caused you to desist from your attack at this time. You told your victim that if you had had better eyesight he would be "dead by now" and you then threatened him by saying, "If you mention anything to the police or anybody I'll come back and finish you off properly. It won't just be me, I'll bring a couple of mates."

5 An ambulance was called and Alexander valiantly assisted your victim with pillows and blankets. No doubt by reason of the serious threat made by you to your victim as you departed the premises, he was untruthful about the cause of his injuries when he arrived at the Bendigo Hospital. The account that he gave to those at the hospital was that he had cut his leg on some tin in the backyard while collecting firewood. Of course, this story was bound to be disbelieved by surgeons when it became apparent that his right femur was broken and had to be corrected surgically by the insertion of a rod and, furthermore, that a serious injury to his left shoulder requiring surgical treatment was clearly not caused by a piece of tin.

6 The police became involved in the investigation and on Thursday 25 September 2003 you were arrested. You were interviewed on the night of 25 September 2003 and you gave a description of your movements on the night in question. You said that you had been in your car "for a bit of a cruise" in the Reservoir area. You said that you stopped in a bottle shop and bought "something to drink". You said that you later met up with some people in the Campbellfield area but after that things "got a bit fuzzy" and you did not know what had happened. There is evidence that you were in the K-mart car park at Campbellfield, with others, at about midnight.

7 You told police that at that time you were drinking straight Jim Beam whisky. You told police that you knew Clyde Street in Tarnagulla well and that you knew Mark Nicholson well and that you used to be friends with Mark Nicholson. You told police that apart from having remembered consuming alcohol that night at the K-mart car park, your next memory was of waking up the next morning and feeling unwell. You told police that you had no memory of going to Tarnagulla and that insofar as the allegations made were put to you, you said that you could not deny such allegations but that you had no recollection of what had happened during the night. You told police that you were on medication at the time. You told them that you were prescribed Aropax for depression and Deralin, a product for thyroid treatment. You were unable however to say how much you had had to drink. You said the last thing you remember was being in the car park when you thought to yourself "Gee, I'm getting pretty whacked here and I'd only had a little bit to drink and that's it."

8 Insofar as your assertions to police that you have no memory of attending upon the premises of your former wife in Tarnagulla, nor any memory of the events which took place there on the morning of 24 September 2003, the prosecution has obtained a statement from Professor Olaf Drummer, the head of the Scientific Services Section of the Department of Forensic Medicine at Monash University. Professor Drummer, in his statement, makes it clear that Aropax is not a drug which is known to effect memory. Likewise, the active ingredient in Derolin is not known to have any effect upon memory. On the other hand, the consumption of alcohol at levels above 0.1% may produce marked changes in behaviour and may affect cognitive actions including memory and judgement. That said, however, there is no medical explanation for your alleged failure to remember any of the events of the early morning of 24 September 2003. You told police that Tarnagulla is approximately 170 kilometres from your mother's home. Thus you drove in excess of 300 kilometres that morning with no apparent memory of the trip. Professor Drummer considers it unlikely that you could drive such a distance without incident if you were highly intoxicated. As your counsel concedes, the explanation for your alleged loss of memory, may be that you were in total denial at the time that you spoke to police, or alternatively that you were untruthful about the state of your memory.

9 The facts in this case are disturbing indeed. Your horrific attack upon your victim had no justification whatsoever. It arose solely by reason of your inability to accept that the relationship between you and your wife was at an end. It is not without significance that on the day of the attack your wife was attending the Family Court and conducting the dissolution of your marriage in accordance with law. On the other hand, some hours before the matter came on for hearing at the Family Court you saw fit to inflict horrendous injuries upon your victim in a fit of anger and jealousy. Furthermore, the fact that part of your attack took place in the presence of your son Alexander, and that you involved him in the matter by requiring him to get a knife is reprehensible indeed.

10 The victim impact statements tendered before me are graphic statements of the effect that your criminal acts have had upon a number of people. The victim impact statement filed by Mark Nicholson refers to the serious consequences of his injuries. The depositions reveal that he was an in-patient at Bendigo Hospital until 1 October 2003 but had to be re-admitted because of serious infection which developed requiring further surgery and transfusions. He has now had a total of six operations upon his right leg. He has had internal fixation of his right thigh and he cannot bend his knee and has to sit with his right leg straight. He is still under treatment in relation to the possibility of infectious disease. Mr Nicholson states that for the first six to eight months after the attack he had constant nightmares. That is hardly surprising. He will suffer the physical consequences of your criminal conduct for the rest of his life and the emotional impact will affect him for some time yet. A victim impact statement filed by your former wife expresses her sadness about the effect that your behaviour has had upon your children. Statements filed by each of your children reflect the effect that your behaviour that night has had upon your relationship with them. A statement filed by their grandmother describes the effect of your conduct upon her and her grandchildren.

11 Serious as indeed your crime is, there are nevertheless a number of mitigatory matters. First, you have pleaded guilty. Whilst it is true that your plea of guilty has avoided the cost and inconvenience of a trial and more particularly has saved your victim and in particular your son Alexander from the trauma of re-living the horrific events which took place on the morning of 24 September 2003, it must be noted that your plea of guilty is a relatively late plea. Your victim and Alexander, and your former wife were cross-examined in detail at the committal proceeding which took place in May of 2004. A directions hearing took place in this matter in the Supreme Court on 7 September 2004 at which you pleaded not guilty to the charge of attempted murder. You pleaded guilty when arraigned before me on 12 October 2004. Although I accept that your plea of guilty entitles you to some discount on the sentence which I would otherwise impose, particularly by reason of avoiding the necessity for further cross-examination of your victim and your son Alexander, it must be observed that this late plea was entered in circumstances where the case against you was of overwhelming strength.

12 Although it cannot be said that you readily admitted your part in the crime when interviewed by police two days later, it is nevertheless true that you did concede that if Alexander had said to police that he had been told by you to get a steak knife "that would be the truth". You also said, "If I've done it, I really, you know, it's not me, and I'm really so sorry for it, because it's you know." That said, however, and of course taking into account in your favour the fact that you have pleaded guilty, I have been unable to find any other clear statement of remorse expressed by you for the events which bring you before this court.

13 I have been told something of your personal history and your circumstances. You are aged 44 years. At the time of the offence you were 43 years of age. You have no prior convictions and accordingly I sentence you as a person of previous good character. A report prepared by Mr Michael Crewdson, a consulting psychologist who saw you at Port Phillip Prison on 6 October 2004, was tendered before me. You grew up in Reservoir as the youngest of three sons born to Macedonian migrant parents. Your parents were responsible, hard working people. You were educated to Year 11 at Keon Park and then commenced an electronics course at RMIT which you partially completed. After your education you worked as a kitchen hand, petrol pump attendant and as a scrap metal yard labourer. You obtained employment with the Ford Motor Company as a maintenance and installation electronics technician. You have been involved in the conduct of a home based electronics business in recent years. In 1997 you developed thyrotoxicosis and since that time you have received disability payments. You confirmed the fact that in later years the relationship between you and your wife was far from amicable although in your discussions with Mr Crewdson you blame your wife for this circumstance. However, you acknowledged to Mr Crewdson that you have been a heavy drinker since your teenage years. Mr Crewdson concluded that your intellectual function was within normal limits but that you are an isolated, alienated and rather schizoid person. He notes that your rehabilitation "will require some effective psychological assistance with personal effective assertiveness and in coming to terms with the nature of his own actions and the cost in terms of liberty and emotional isolation from his children". I note to your credit that you have been involved in some community activities in that you joined the local CFA in September of 1995 and within three years of joining became a communications officer and attended at fires in Creswick, Daylesford and Maryborough.

14 Significantly, I note that you provided no statement to Mr Crewdson of the circumstances of your offence, nor did you express any remorse to him for your behaviour. You continue to claim "amnesia" for the events in question. Mr Crewdson concludes that you may be lying about this or alternatively your repugnance for your behaviour may be responsible for your suppression of memory. Mr Crewdson suggests that it is possible that you are suffering from Post Traumatic Stress Disorder. I am far from satisfied that that is the case. Indeed, on Mr Crewdson's own analysis a necessary ingredient in your presentation, i.e. "re-experiencing the event" is missing as you claim to have no memory of the events. Certainly, Mr Crewdson asserts that your claimed lack of memory may be driven by the representation of experiences which are not "consciously accessible". In my view, this opinion of Mr Crewdson's is highly speculative. On any view it is not probable, nor does Mr Crewdson assert it to be so. Whether or not your claimed memory loss is simply untrue, or whether or not it is the consequence of a profound psychological response to your violent behaviour, it is apparent that your rehabilitation has yet to start in terms of coming to terms with an understanding of how your violence has affected the lives of your victim and your family.

15 Tendered before me was a statement which you had prepared setting out your educational background and skills. You claim to have considerable knowledge of electronics as well as experience in mechanical work and welding. Somewhat surprisingly you claim that your skills include "excellent interpersonal skills" and "problem solving ability". I observe that those skills were noticeably absent on the day of this offence.

16 In addition, there was tendered before me a work reference which certified that you were employed by Davies Shepherd Pty Ltd between 15 March 1990 and 10 March 1994 and advising that you were a quality control inspector and your employers considered you to be "honest, hard working ... amiable and always willing to help those who seek his advice". I note that you have undertaken a number of courses in prison including occupational health and safety, workplace hygiene, asset maintenance and that you have attended a drug and alcohol education program. Your counsel, Mr Montgomery, submits that you have suffered enormous loss by reason of the breakdown in the relationship between you and your children. I accept that your conduct is likely to result in your being estranged from your children for the foreseeable future and I accept that such estrangement does and will cause you considerable distress.

17 Your counsel submits that you are a person who has tried hard to be "a good, honest, hard working fellow". He submits that the circumstances which bring you before this court happened in the context of the break-up of your marriage and that you were clearly a jealous and possessive man, who could not handle the consequences of that break-up and could not accept the normal processes that people should accept. Mr Crewdson formed the opinion that you are an introverted individual with extreme levels of anxiety who suffered major depression with the loss of your relationship and family in circumstances which you found to be distressing. I accept that is so and that your failure to control your anger and distress may explain to a considerable degree, but not excuse, the background under which you committed these crimes.

18 However, as well as matters personal to you, I must take into account other things. First, the issue of general deterrence looms large in cases such as this. Regrettably, it is not uncommon for partners to a relationship breakdown to seek to bring violence to bear on others whom they see as being associated with that breakdown. In this case, you entered the home of your wife and children in the early hours of the morning armed with an axe and attempted to murder a decent man who was babysitting your children only hours before the hearing of the proceeding to dissolve your marriage. You attacked him with horrendous and frightening violence. It was good fortune only that your first blow with the axe missed the head of your victim and struck him on the left shoulder. However, not satisfied with the result of this blow you then smashed his right thigh with murderous intent. Whilst your wife was attending to the lawful dissolution of your relationship, you were at her home, armed with an axe, and intending to kill a man who had caused no harm to you.

19 Our community has established processes and support systems for people who suffer emotional trauma by reason of relationship breakdown. No matter how traumatic and upsetting the relationship breakdown is, the fact is that civilised members of the community use such resources as are provided by the community to enable them to cope. The community cannot tolerate people such as you deciding to exact vengeance and/or retribution by way of violence upon others in consequence of a relationship breakdown. Those persons who contemplate such a course must expect that there will be serious consequences should they engage in violence to attempt to resolve the issues arising from relationship breakdown.

20 Furthermore, I must take into account the question of specific deterrence. As I have stated above I observe no evidence of real remorse in the material before me. Indeed, you continue to harbour considerable anger about the marriage breakdown. You told Mr Crewdson that you were "still very angry" about the marriage break-up and you discussed those feelings with him with "some vehemence". I note that you claimed to Mr Crewdson that you would "never be a danger to anyone" but, in circumstances whereby you claim, for whatever reason, to have no memory of what you did and in circumstances whereby you deny that it was your true character which caused you to engage in these matters, my conclusion is that specific deterrence is a matter of some significance in terms of sentencing you.

21 Furthermore, as submitted by the prosecutor, your conduct is such that it requires a stern sentence of imprisonment in order to manifest the community's denunciation of your conduct and, as I have said, to deter those who breach the safety of family homes and commit acts of violence. In all the circumstances there is no alternative but to sentence you to a term of imprisonment.

22 On Count 1, the charge of aggravated burglary, I sentence you to 4 years' imprisonment. On Count 2, the charge of attempted murder, I sentence you to 10 years' imprisonment. The prosecution submits that there should be some, although moderate, cumulation of sentence, particularly taking into account the gravity of the home invasion in this case. On the other hand, Mr Montgomery of council submits that the aggravated burglary and the attempted murder are all part of a single course of conduct and that the sentences should thus be concurrent. I have given careful consideration to these submissions. Whilst in the circumstances before me it is true that the offence of aggravated burglary is rooted in your intention to commit the ultimate assault upon your victim, it must be remembered that your entry into the home was with an axe in circumstances whereby you knew on were reckless as to whether or not persons, including your children and your ultimate victim, were present. In the circumstances the nature or gravity of the offence which you committed once you had entered the premises armed with an axe is of such gravity, that subject to offending against principle of totality there should be some cumulation. I direct that one year of Count 1 be cumulative upon the sentence imposed on Count 2. That makes a total effective sentence of 11 years.

23 It is appropriate that the Adult Parole Board, should they see fit to grant your parole should have ample opportunity to adequately supervise your release into the community. For that reason I direct that you not be eligible for parole before you have served 8 years' imprisonment.

24 I declare that pursuant to s.18 of the Sentencing Act you have spent 418 days in custody and I direct that the same be noted in the records of the Court.

25 Remove the prisoner.