R v Serrano [2007] VSC 231

2 On receiving that verdict, I set down the hearing of submissions in relation to sentence for 28 June. The prisoner's counsel were invited to reappear and make submissions on sentence. The prisoner has not yet been recaptured and his counsel declined to attend and make submissions on sentence.

3 Milica Trailovic was born in Yugoslavia in 1942. At the time of her death she was 61 years of age. She was then living at her home at 25 Skye Crescent, Endeavour Hills. She was a widow. Her second husband, John, had died in 1996. Ms Trailovic was last seen on 26 December 2003, and she has not been seen or heard of since.

4 Ms Trailovic met the prisoner approximately three years before her disappearance and death. The prisoner was born in Spain in 1940, and migrated to Australia in 1972. He lived in the unit which he owned in Hallam. He had been previously married and divorced.

5 After the prisoner met Milica Trailovic, the couple commenced a relationship together. He generally stayed overnight at her home in Endeavour Hills two or three nights per week. Approximately two years before her death, Ms Trailovic returned to her former homeland of Serbia for a visit without the prisoner. When she returned, the relationship between herself and the prisoner continued.

6 There was evidence that the prisoner and Ms Trailovic had had some disagreements, particularly about matters pertaining to money. However, there was no evidence of any previous major disagreement between them, or of any violent or acrimonious flare up between them. On the other hand, there is some evidence which suggests that the prisoner might have been more keen on maintaining and developing his relationship with Ms Trailovic than she was with him.

7 There is no evidence that Ms Trailovic had intended to spend any of the forthcoming Christmas/New Year period of 2003 anywhere other than at her home in Melbourne. On the contrary, she had purchased and paid for tickets for the prisoner and herself to attend a New Year function in Keysborough. She had also discussed plans with her friends to attend a function for the Serbian New Year which was to take place on 13 January.

8 The last reliable sighting of Ms Trailovic was by her next door neighbour at about 10.00 am on 26 December 2003. After that date, the prisoner continued to reside at her home until he left, at the request of the police, on 22 January 2004. In late December 2003, the prisoner commenced to tell friends, neighbours and acquaintances of Ms Trailovic that she had left for a holiday in Queensland. He told them that at about 8.30 am on Boxing Day 2003, he had, at her request, dropped her off near the bus stop at the Dandenong Plaza. He said that she had insisted that he leave before she departed from the Plaza. He gave friends and neighbours, and subsequently the police, a number of differing accounts as to what he said were the intentions of Ms Trailovic. One suggestion which he made was that she was intending to travel to Queensland to attend a meeting of Jehovah's Witness congregants there. However, that suggestion was clearly not accepted by the jury. Ms Trailovic had been a member of the Jehovah's Witness sect, but had ceased her involvement with the group almost two years previously. There was no evidence that she had attended the small conference of Jehovah's Witnesses in Brisbane at Christmas 2003.

9 On 5 January 2004, and again on 7 January, the prisoner reported to the Dandenong Police Station that Ms Trailovic was missing. When he spoke to the police, and later participated in interviews with the police, he maintained the same account which he had given to the friends and neighbours of Ms Trailovic, namely that he had left her at Dandenong Plaza bus stop on 26 December 2003 and had not seen or heard of her since.

10 The account given by the prisoner for Ms Trailovic's absence was highly contrived and flawed. It is not surprising that the jury was satisfied beyond reasonable doubt that that account was untrue, and that Ms Trailovic did not depart for Queensland as maintained by the prisoner.

11 In March 2004, the police investigation into the absence and possible death of Milica Trailovic began in earnest. Bloodstains were found on her dining room window, on the vent on the floor near that window, on the dining room table, and on a couch in the lounge dining room. Twelve square metres of carpet had been recently cut up from that area and were missing. Two broken chair legs, matching the legs of three remaining dining room chairs in Milica Trailovic's house, were found behind her garden shed. There were bloodstains on one of those chair legs. DNA extracted from all of the bloodstains, to which I have referred, matched the DNA profile of Milica Trailovic. Evidence was called on behalf of the prosecution that Milica Trailovic had not suffered any other injury before 26 December 2003 which might account for the bloodstains detected by the police in March 2004.

12 Milica Trailovic's body has never been found. Clothes matching items of clothing previously worn by Milica Trailovic were found at a location just outside Newborough. The prisoner's vehicle was tracked to that location, at which he had stopped for a period of 12 minutes very late at night on 12 April 2004.

13 The Crown case was that the prisoner had bashed and murdered Milica Trailovic with the dining room chair leg in her lounge-dining room. By its verdict, the jury was satisfied beyond reasonable doubt as to the Crown case. It is not necessary for me to refer to the evidence which substantiated that verdict. It is sufficient for me to observe that the Crown presented a substantial circumstantial case, implicating the prisoner in the disappearance and death of Milica Trailovic. In my view, the jury was entitled to be well satisfied, beyond reasonable doubt, that the prisoner had murdered Milica Trailovic in her lounge-dining room in the circumstances alleged.

14 It will never be clear exactly what occurred in the lounge-dining room of Milica Trailovic, nor why the prisoner murdered her. A number of possible motives may be suggested from parts of the evidence, but there is, in my view, insufficient evidence to enable me to infer beyond reasonable doubt that the murder occurred other than in circumstances involving a spontaneous eruption of violence by the prisoner. Forensic evidence establishes beyond reasonable doubt that the prisoner struck Ms Trailovic a number of blows. He struck her at least two blows while she was standing near the dining room window, at least one further blow while she was either sitting, staggering or bending by the table, and another blow while she was lower down near the couch. I am satisfied that those blows were struck either with a dining room chair, or with a leg from the dining room chair. Clearly, the jury was satisfied that the prisoner inflicted those blows with the intention of either killing Ms Trailovic or causing her really serious injury.

15 Accordingly, it is appropriate that I sentence the prisoner on the basis that the murder arose in circumstances involving a spontaneous and violent outburst of anger. The blood stain evidence, and other forensic evidence, satisfies me beyond reasonable doubt that the prisoner struck Ms Trailovic a number of times with a chair or a chair leg. He continued to strike her as she was falling, and after she had fallen, to the ground. It was a vicious, brutal beating of a defenceless, innocent woman of mature years in what should have been the safety of her own home.

16 The gravity of the conduct of the prisoner is aggravated by his conduct following the murder. The prisoner removed Ms Trailovic's deceased body from her home, and hid it in a location which has still not been discovered. He took further elaborate steps to endeavour to remove and conceal evidence which would have implicated him in the murder of Ms Trailovic in her own home. As I stated, he cut up a large section of the carpet, and managed to dispose of it. He hid the chair leg with which he had beaten Ms Trailovic to death, and also hid her spectacles, which had been damaged in the assault. He concocted and maintained a false account to friends, neighbours and acquaintances, and then to the police. His conduct in doing so, and his demeanour during the three recorded interviews which he had with the police, demonstrates that he has no remorse at all for his crime. Further, as the authorities indicate, his conduct in concealing the death and the body of Ms Trailovic, and endeavouring to lay a false trail in relation to her disappearance, aggravates the gravity of his wrongdoing.[1] That conduct was intimately connected with the murder by the prisoner of Ms Trailovic. It was part and parcel of the offending, and as such added to the seriousness of the offence. The prisoner's implication in the murder of Ms Trailovic was only uncovered by thorough and resourceful detective work by the police responsible for the investigation of her disappearance.

17 In addition, shortly after he had murdered Ms Trailovic, the prisoner paid an unbidden visit to the woman who had witnessed the last will of Ms Trailovic. He had a copy of that will in his possession. Having made that visit, he then attended upon and spoke to the solicitor who had acted for Ms Trailovic, and who had prepared her will. On each occasion, he used as a pretext for those visits his avowed concern as to the whereabouts of Ms Trailovic. On either 12 or 19 January 2004, the prisoner attended the premises of the Serbian Welfare Association. He said that he wished to speak to a Serbian lawyer in order to ascertain where the will of Ms Trailovic was located. He claimed that he was concerned that if he was unable to find the will, the estate of Ms Trailovic would pass to the government, rather than to Ms Trailovic's niece. Clearly, the prisoner was being untruthful when he spoke to the representatives of the Association. He already had a copy of the will and knew what disposition had been made by Ms Trailovic for her estate.

18 In my view, the only reasonable inference from that conduct of the prisoner is that, having murdered Ms Trailovic, he perceived an opportunity to take advantage of her disappearance and death by benefiting from her estate. I consider that that is the only rational explanation for his approaches to the solicitor of Ms Trailovic and to the Serbian Welfare Association. In the course of sentencing submissions, Mr Gibson, the Crown prosecutor, initially submitted that I was entitled to draw the inference that the prisoner was motivated by greed when he murdered Ms Trailovic. However, Mr Gibson realistically accepted that, on the evidence available to me, and particularly in light of the absence of the prisoner's counsel, it would not be appropriate for me to draw that inference as an aggravating feature of the offence. Nonetheless, I do accept that, shortly after her murder, the prisoner did perceive that there might be some financial advantage to him accruing from his murder of Ms Trailovic. The conduct of the prisoner in approaching both the solicitor of Ms Trailovic and the Serbian Welfare Association was closely and intimately connected with her murder. It is a further matter which I am entitled to, and do, take into account in aggravation of the offence.

19 Thus, in summary, the murder for which the prisoner is to be sentenced is one which must be characterised as resulting from a spontaneous outburst of violence. There is no sufficient evidence which would support a finding of any premeditation by the prisoner. On the other hand, as I have stated, the murder was constituted by a vicious beating comprising a number of blows with either a wooden chair or a wooden chair leg. The victim, Ms Trailovic, was a woman of mature years who was entitled to feel safe and secure in the loungeroom of her own home. She trusted the prisoner, and had had a three year relationship with him. The prisoner betrayed that trust in the most fundamental way. Not content with murdering her, he then aggravated his wrongdoing by disposing of her remains, thereby depriving her of a decent burial, and depriving her friends and neighbours of the opportunity to bid her a last farewell. He has sought to exploit her death for his own financial gain. The prisoner has shown no remorse for his murder of Ms Trailovic. His conduct after the offence reveals that he is a callous and cowardly individual.

20 The fact that the prisoner absconded during the trial and while on bail is not an aggravating feature of his offending. However, it speaks ill of his character. He has betrayed the trust reposed in him not only by the Court, but also by his surety. He has shown that he is a person who cannot be trusted, and has displayed contempt and disregard for the dictates of the law[2]. The prisoner's absconding also, to some extent, detracts from his prospects for reform and rehabilitation[3]. However, in the context of the serious crime for which he has been convicted, the fact that the prisoner has absconded is only of little consequence in determining the appropriate sentence which is to be imposed upon him.

21 I have read the victim impact statement of the niece, two brothers and sister of Ms Trailovic, and the letter of Ms Trailovic's niece which was attached to the victim impact statement. Those documents graphically portray the grief and trauma which have been occasioned to the loved ones of Ms Trailovic as a result of her violent murder. Milica Trailovic was the direct victim of the prisoner's violent crime. In addition, others who were dear to her, have been left behind to cope with the sorrow and sense of loss wrought by her murder. Their suffering and grief, much of it still unresolved, are an inevitable consequence of the prisoner's callous conduct.

22 As the prisoner has not yet been recaptured and his counsel have declined the opportunity to make any submissions on his behalf, it is necessary for me to attempt to ascertain what I can about his circumstances from the evidence given at trial, and from some of the deposition material. In this respect, I am substantially reliant on the contents of a statement which the prisoner made to the police on 4 March 2004, and which was read into evidence at the trial.

23 The prisoner is almost 67 years of age, having been born in Spain in 1940. There is evidence that he was orphaned at an early age, and was brought up in stringent and difficult circumstances in an orphanage. He gained a trade as a cabinet maker. In 1972, the prisoner migrated from Spain to Australia. Shortly thereafter, he met and married a woman named Violet. On any account, the marriage was unhappy, but did last for some 15 to 20 years. The couple had no children and ultimately divorced. In the meantime, the prisoner had obtained employment, working as a metal worker for a company in Clayton. His employment with that company ceased at the age of 55, when the company discontinued its business.

24 Thereafter, the prisoner found it difficult to obtain any further employment. He undertook a number of courses. He obtained a heavy truck licence, a forklift licence, and a welding certificate, and undertook an excavator's course. However, since 1995 he had been on a disability support pension. At the time of his arrest, he was working casually with Budget Rentacar.

25 In his interviews with the police, the prisoner maintained that he had some difficulties with his health, principally arising from problems with a hernia. Some evidence was led in relation to his health at the trial because it related to the question as to whether he would have had the strength and the physical capability to remove Ms Trailovic from the house. The evidence revealed that in 2001, the prisoner had undergone a procedure to repair his hernia, for which he stayed in hospital overnight. Two doctors who treated him for various conditions in 2003 to 2004 gave evidence. They both stated that at no time had the prisoner told them that he had any problem with his hernia or any other related disability. There is no evidence that the prisoner suffers from any other health problem.

26 The prisoner has two previous convictions. Both of them are of some antiquity. Although they both involved an element of violence, neither of the convictions were particularly serious. In the context of the crime for which I must sentence the prisoner, those previous convictions are relatively inconsequential. However, they do, to some extent at least, demonstrate that at the time at which he murdered Ms Trailovic, the prisoner was not otherwise of unblemished good character.

27 The main mitigating circumstance of the prisoner is his age. Any appropriate sentence which is to be imposed must take into account the fact that such a sentence would represent a substantial proportion of the period of life which is left to the prisoner. No doubt at his age, and in future years, a sentence of lengthy imprisonment would bear heavily upon him. Further, if the prisoner were to survive until he were due for release, he would no doubt find his rehabilitation into society to be most difficult and problematic. On the other hand, the authorities have emphasised that the advanced age of an offender cannot be allowed to justify the imposition of an unacceptably inappropriate sentence[4].

28 Thus, I am faced with sentencing, in his absence, an accused man who has been found guilty of the most serious offence in the criminal calendar. Although the murder was unpremeditated and spontaneous, nonetheless it involved a significant degree of violence to a mature woman in what should have been the security of her own home. Ms Trailovic had had a relationship with, and trusted, the prisoner. He abused that trust in the most dreadful way. Not content with her murder, he aggravated his wrongdoing by disposing of her remains, and concocting and maintaining a false account of her disappearance. He sought opportunistically to take advantage of her death for his own financial gain.

29 On the other hand, as mitigating circumstances, as I have stated, I take into account that the prisoner is of mature years, that for most of his life he has had to fend for himself, and that, by and large he has lived an unblemished life, although he does have two relatively minor previous convictions. I bear in mind in particular that a sentence of imprisonment will, in this case, bear heavily upon the prisoner.

30 It is important that the sentence which I impose is of sufficient severity, not only to deter the prisoner, but also to act as a general deterrence. In sentencing those convicted of the crime of murder, the Court is concerned to uphold the sanctity of human life, to express adequately the community's abhorrence and condemnation of the wilful taking of that life, and to ensure that an appropriate message is given to the community that such offences will not be tolerated by the Courts.

31 Taking those matters into account, I sentence the prisoner as follows. I sentence the prisoner to 17 years' imprisonment. I fix a period of 13 years during which the prisoner is not eligible to be released on parole. I declare, pursuant to s.18 of the Sentencing Act 1991, the period of 306 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

[1] See Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258 at [30 - 31, 35] (Brooking JA); R v Bangard [2005] VSCA 313 at [16] (Buchanan JA); R v Tran [2003] VSC 165 at [12] (Redlich J); Bell v R [2003] WASCA 216 at [23] to [26] (Murray ACJ).

[2] Compare R v Gray [1977] VicRp 27; [1977] VR 225 at 230.

[3] R v Thompson (1987) 37 A Crim R 97 at 100.

[4] R v Bazley (1993) 65 A Crim R 154 at 158; R v Whyte [2004] VSCA at [29] (Winneke P); R v Cumberbatch [2004] VSCA 37 at [12] (Chernov JA).