R v Stavreski [2004] VSC 16

8. Both Mr and Mrs Stavreski worked as cleaners at the Austin Hospital in Heidelberg. On Monday 5 August 2002, before leaving for work Mrs Stavreski had a strange conversation with her daughter. Upon informing her daughter that she was cooking meat that evening Violeta responded that she was not angry with her mother that she was cooking meat. As there was no particular day on which the family ate meat Mrs Stavreski regarded her daughter's response as odd, but gave it no further consideration at that time.

11. At about 9.30 p.m. that evening Mr and Mrs Stavreski returned home from work. The cars belonging to both their son John and their daughter Violeta were parked in the driveway. Mr Stavreski made himself a cup of coffee and then went to the shed in the rear yard to do some hobby work. Mrs Stavreski noticed that the cooking pot which she had left on the stove in preparation for the evening meal was missing. Having checked the boys' rooms she went to Violeta's room and opened the door. She then noticed that there was blood smeared on the wall. The room was in disarray. The blood smears and the state of disarray is apparent from the photographs in Exhibit 1. There was a broken picture frame on the bed which had contained a photograph of Violeta and her boyfriend. The cooking pot was also on the bed.

14. Mrs Stavreski called out to her daughter who was not visible. Her daughter responded saying thank you and made some other odd comment. Upon looking behind the bedroom door Mrs Stavreski observed Violeta kneeling on the floor. She had a cloth or rag covering her body. Violeta said to her mother "Do you love me?" and her mother said "Well of course". Violeta then said "Well if you love me you will come inside and I would like to kiss you. Kneel down beside me so I can kiss you". Mrs Stavreski then knelt down beside her daughter and upon lifting up the cloth observed that her daughter was completely naked. As she lifted the cloth her daughter lunged forward and bit her mother on the face to the right side of the mouth. She then pushed her mother backwards forcing her mother onto her back between the bed and the wall. She subjected her mother to a violent and sustained attack as a consequence of which Mrs Stavreski was seriously injured. She subsequently underwent surgery. She had received a jagged severe full-thickness laceration to the right lower lip, an eight to ten centimetre defect in the right temporal area down to an area beside her eye and with her hair and scalp being torn down to the deep layers of skin. She sustained a partial amputation of the right ear. She also sustained many minor injuries. She remained in intensive care for ten days and was kept at the hospital for a further six days before she was discharged.

17. As Mrs Stavreski was being assaulted by her daughter she screamed out to Mr Stavreski for help but as was his practice he had the radio turned on in his hobby shed and did not hear her. After Violeta had persisted in her attack on her mother for some time, she got off her mother telling her to remain on the floor. Violeta went to the bedroom window which looks out into the back yard, lifted the window and called out to her father to come and see what had happened to his wife. Mr Stavreski heard his daughter yelling out to him and went to his daughter's bedroom window. He was shocked when he saw his wife and the scene of the assault. He returned to the workshop and taking a screwdriver with him went to Violeta's bedroom. He could barely recognise his wife and asked Violeta what had happened to her mother. Violeta responded that she didn't love her mother or anybody any more. Violeta then commenced an attack on her father. It is not entirely clear whether or not Violeta had something in her hands when she commenced her attack. Both Mr and Mrs Stavreski believe that she did. Forensic examinations do not reveal that Violeta had a weapon.

20. Violeta commenced a ferocious attack upon her father. Mr Stavreski told his wife to get out of the room and she managed to move into the kitchen area. She left a trail of blood from the bedroom to the kitchen via the hallway. On attendance at the premises police discovered parts of Mrs Stavreski that had been torn or bitten from her on the floor in the bedroom and in the area between the bedroom and the kitchen. Violeta continued to attack her father attempting to scratch and bite him. The attack was described by Mr Stavreski in his Record of Interview as ferocious although the only injuries that he sustained were scratches to the side of the face. During the course of the attack Mr Stavreski stabbed Violeta on numerous occasions at the base of her neck and in the midline in the area of the left collarbone and to both her upper and lower limbs. During the course of the attack Violeta said to her father that she was going to kill him and continued to struggle with him until Mr Stavreski got her onto the floor.

23. In the course of his Record of Interview with police, Mr Stavreski was anxious to provide investigating police with a full account. He described his daughter's aggression and how he had continued to stab her until she became quiet. During the interview he said that he had "lost control". He was fearful for his own safety and that of his wife who was seriously injured. He wanted to get to the telephone to call an ambulance.

26. When Violeta ceased struggling Mr Stavreski left the bedroom locking the door and immediately telephoned the emergency line. He said to the operator that there was an accident and that he had killed his daughter. He told the operator that his daughter was killing his wife and that he had killed her by stabbing her ten times or so with a screwdriver. He asked for an ambulance to look after his wife and expressed urgency saying that there was blood everywhere. Shortly thereafter the ambulance operators and police attended.

29. When the police arrived a little after 10.30 p.m. Mr Stavreski was standing at the front door. They found Mrs Stavreski inside the hallway of the house seriously injured and covered in blood.

32. Following the trail of blood the police went to Violeta's bedroom. Violeta was not in her bedroom when they unlocked the door. They observed blood on the wall and ceilings. The bedroom window was open. Police officers then went out into the back yard and there found Violeta naked face down in the dirt. She was in a very serious condition. She was immediately taken to the Northern Hospital and she underwent emergency surgery for the multiple stab wounds that she had received. She was bleeding profusely from those wounds. In surgery it was noticed that there were some 20 puncture wounds around the area of the base of the neck and the left collarbone. Following surgery she was taken to intensive care but the following morning Violeta died from the multiple stab wounds to the neck and chest. In addition to the stab wounds the deceased had suffered a large number of areas of bruising and abrasions some of which were related to her exit through the window and her movements in the garden. The pathologist who conducted the autopsy concluded that death was caused by multiple stab wounds.

35. Upon a subsequent search of the deceased's bedroom a very small quantity of cannabis was found and one blue tablet containing 0.2 of a gram of methylamphetamine. Blood analysis of the deceased revealed two nanograms per millilitre of THC.

38. Tragedy surrounds all homicides which come before this Court, but it is difficult to imagine a more distressing and tragic case than the present. Despite the ordeal which the Stavreski family has faced, they remain united and fully supportive of Mr Stavreski. His son Nik testified on the plea that the family had had no forewarning of such behaviour by Violeta.

41. Although Mr Stavreski was initially presented on one count of murder the present presentment of manslaughter was filed by the Director of Public Prosecutions in anticipation of a plea of guilty on the basis of the application of the principles relevant to provocation. I was informed by the learned prosecutor, Mr Elston, that in ordinary circumstances the Director of Public Prosecutions considers it a jury question whether or not provocation exists to justify a verdict of manslaughter rather than murder. The facts of the present case were considered to be so extraordinary and exceptional as to justify the acceptance of a plea to manslaughter on the basis of provocation. The course followed by the Crown of accepting a plea to manslaughter was entirely appropriate.

44. During the course of the plea there was some discussion as to whether the facts could also be characterised as a case of excessive self-defence that was not accompanied by a murderous intent. Mr McIvor who appeared on behalf of Mr Stavreski informed me that had the trial proceeded on the count of murder, the accused would have relied upon self-defence and the absence of intent in answer to the charge.

47. In the judgment of Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions[1] it was observed that excessive force used in the belief that it was necessary in self-defence will not constitute such a defence where there are no reasonable grounds for the belief that that degree of force was necessary. The joint judgment, referred with approval to the decision of R v McInnes[2] in which manslaughter was identified as the proper verdict where an accused uses excessive force under provocation or lacks the intent to kill or cause serious bodily harm.[3]

50. Violence or the threat of violence to oneself or another will in many circumstances constitute both provocation and a basis for self-defence. The learned prosecutor did not dispute that Mr Stavreski was compelled to defend himself and his wife. Mr Stavreski by his plea admits that he used excessive force, but that at the time that he did so he acted under provocation. Mr McIvor also submitted that Mr Stavreski did not have the intent necessary for the offence of murder. As both parties regard manslaughter provocation as appropriate and having regard to the position adopted by the Director on the question of sentence, it is unnecessary to further consider how Mr Stavreski's plea should be characterised.

53. It was submitted on behalf of Mr Stavreski that I should wholly suspend any period of imprisonment which I imposed upon him. At the commencement of the plea, the learned prosecutor informed the Court that if I was disposed to wholly suspend any period of imprisonment the Crown would not take issue with such a course having regard to the extraordinary circumstances of the case.

56. It is well recognised that manslaughter varies from a nominal crime to the boundaries of murder and that sentences can vary from being extremely light to very severe.[4] There is no tariff as to the appropriate sentence for manslaughter. In determining the appropriate sentence I am mindful of the denunciatory role of sentencing. As Gleeson CJ, President Kirby and Hunt CJ observed in Regina v McDonald:

"Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. Regina v Hill (1981) 3 A Crim R 397 at 402. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system." [5]

60. There are exceptional circumstances where Courts have refrained from imposing a custodial sentence for the offence of manslaughter.[6] It is recognised that a non-custodial sentence in domestic provocation cases will only be imposed in exceptional circumstances.[7]

63. In determining the appropriate sentence for manslaughter by reason of provocation, I have taken into account some of the factors referred to by Hunt CJ in R v Alexander[8] including the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; and the time between the provocation and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence. In New South Wales it has become customary to expressly refer to such considerations. [9]

66. Mr Stavreski you have pleaded guilty to the count of manslaughter. You will have followed from what I have already said that manslaughter is a very serious crime which ordinarily requires that the offender serve a term of imprisonment.

69. You are 54 years of age and without prior convictions. You have been a peaceful hardworking husband and father since you came to Australia some 30 years ago. You were confronted by circumstances which shocked you and must have been very difficult to comprehend. I accept that you acted in immediate defence of yourself and your wife and that under extreme provocation you used excessive force. There was only the briefest of time between the call for force to defend yourselves and the loss of self-control. Your wish was to quieten your daughter so that you could summon an ambulance. The crime to which you have pleaded guilty does not suggest that you are likely to offend again nor is it suggested by the Crown that this case calls for me to take into account general deterrence.

72. It is perhaps unnecessary to state that you are extremely remorseful and distressed for having killed your daughter. You were fully co-operative with investigating police and were anxious to place a full account of what occurred before them. Your wife and sons remain fully supportive of you and share with you the burden which you must carry as a result of the loss of your daughter. Not surprisingly your wife has required counselling and looks to you for support. Your wife has faced a terrible ordeal and should not be made to suffer further.

75. No sentence or other order that I can make will do anything to ease the pain which you and your entire family are suffering. You may never find answers to what has been described as the utterly inexplicable behaviour of your daughter who was extremely disturbed on this day. Your family should not have to endure the further distress that would arise were I to require you to serve a gaol sentence.

78. The circumstances of your case calls for a lenient sentence. This is acknowledged by the Director of Public Prosecutions' submission that the suspension of any gaol sentence would not be inappropriate.

81. Provocation or excessive self-defence manslaughter is a serious offence and the Court must be seen to uphold the sanctity of life but this consideration and the principle of general deterrence can be accommodated in these exceptional circumstances by a sentence of imprisonment which is wholly suspended. In all the circumstances I regard the proper sentence as one of three years. You will therefore not be required to spend any time in custody, but you must not commit any further offence which is punishable by imprisonment otherwise you may be required to serve some or all of the suspended sentence. Accordingly I order that you are sentenced to three years' imprisonment but I order that the whole of that sentence be suspended for a period of thirty-six months.

[1] [1987] HCA 26; (1987) 162 CLR 645 at 664.

[2] (1971) 55 Cr. App. R. 551 at 562.

[3] R v Deniz [2003] VSCA 23.

[4] R v Osip [2000] VSCA 237; R v Weinman (1987) 49 SASR 248 at 249; R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at 299; R v Papazisis and Bird (1991) 51 A Crim R 242 at 245.

[5] Unreported, NSW CCA 12 December 1995.

[6] See for example R v Denny [2000] VSC 323; R v Southwell [2002] VSC 526; R v Gazdovic [2002] VSC 588; R v Makike [2003] VSC 340; R v Scott [2003] NSWSC 627; R v Yeoman [2003] NSWSC 194; R v Rodriguez 7 May 1996; R v Bunnett 28 October 1996; R v Bradley 14 December 1994.

[7] R v Bogunovich (1985) 16 A Crim R 456 at 460-461 per Maxwell J; Boyle v R (1987) 34 A Crim R 202 at 204-6; R v Alexander (1994) 78 A Crim R 141.

[9] See for example R v Dimond [2000] NSWSC 1212; R v Yu [2003] NSWSC 1153; R_egina v Johnson_ [2003] NSWCCA 129; R v Marlow [2003] NSWSC 1130.