R v Svetina [2011] VSC 392

3 He was born in Croatia, where he met and married your mother, Zdenka Svetina, in 1956. You, their first-born child, were born in 1957. Your brother, Zdenko (also known as John) was born in 1962. In 1971, the family moved to Australia. Your father had qualified in Croatia as an electrical fitter and he continued to work full time in that capacity in Melbourne until partial retirement at the age of 55. Thereafter, he occupied his time with investing in shares, which was not particularly successful, handyman-type electrical work and one-off small scale switchboard construction projects. Your mother and father separated in December 2009 after a breakdown in their relationship that had begun to develop following your father's partial retirement. As your mother said in evidence, being together all the time was just too much.

4 In December 2009, you were 52 years of age and divorced with two children of your own and a stepchild from the marriage. When your marriage broke down in 1995, your mother paid out your ex-wife's share of the marital property and thereby enabled you to continue to live in your former marital home at 32 Beard Street, Doncaster. That property was then signed over into your parents' names, in part to provide them with security for the moneys advanced to pay out your ex-wife, and in part to prevent further claims being made against it.

5 Your parents also owned a house at 12 Amelia Crescent, Doncaster. At some point, you moved out of the Beard Street home, which was sold, and took up residence at the 12 Amelia Crescent house. At that time, half the sale proceeds of the Beard Street home went to repay your mother for the payments she had made to your ex-wife and the other half was kept for you by your parents. The 12 Amelia Crescent property was valued then at approximately $200,000 and you agreed with your parents that you would buy it from them by payments to be made over time.

6 In accordance with that agreement, you made payments over a period of years which, together with the $130,000 they were holding on your behalf, totalled $200,000. In order, however, to avoid stamp duty and capital gains tax, which would have been exigible on a transfer of the property to you, the property was kept in your parents' names.

7 Some two and a half years before you killed your father, you agreed with your parents on a joint venture to demolish the 12 Amelia Crescent house and redevelop the property as two residential units. The plan was that you would provide the 12 Amelia Crescent land, which was treated within the family as belonging to you and, at that stage, was valued at approximately $670,000; and your parents would fund the construction costs of the redevelopment, which were estimated to be of a similar order. Then, upon completion, your parents would have one unit and you would have the other.

8 In order that the demolition and re-construction could proceed, during October 2009 you moved out of the 12 Amelia Crescent property and into your parents' home at 9 Wilton Way, Doncaster. It was not a successful arrangement. You were close to your mother but your father resented your presence and made no secret of it. Rightly or wrongly, he perceived you to have emboldened your mother to question and resist his domineering attitude towards her, and he resented it. Thus the relationship between your father and mother, and between your father and you, deteriorated rapidly to the point where your father began to resort to violence.

9 On 9 November 2009, police were called to attend a non-violent domestic incident between you and your father. Two weeks later, the police were called again, after your father and mother argued over your mother's internet usage. Your father accused her of chatting to other men on the internet and he was enraged with jealousy. As a result of that incident, an intervention order was granted which prevented him going into certain parts of the house.

10 On 9 December 2009, while you were away from the house, your father again confronted your mother about her internet usage. Your father grabbed her by the hair and ripped her blouse to her waist, causing her to run to the home of a nearby neighbour for help where the police were called. Later that evening, after you had returned home, your father went into the garage and began to damage items with a hammer. You confronted him and another brief struggle ensued. Once more, the police were called and on that occasion it was decided that your father should spend the night at the home of your brother, John.

11 Early the next morning, your father left John's house unannounced and returned to the Wilton Way property. Having parked his car around the corner, he gained entry to the property by cutting a hole in a flywire screen and climbing in through the window. Once inside, he confronted your mother and threatened her with a knife. Another struggle ensued in which your father stabbed your mother once in the mouth and once in the arm. You heard the noise and came to your mother's aid. When you got there, your father was attempting to stab your mother and she was resisting. You prized the knife away from your father and punched him and then restrained him by straddling him until the police arrived. Your father was arrested and charged, and ultimately pleaded guilty to an offence of intentionally causing injury for which he was gaoled until 9 March 2010.

12 While your father was in gaol, your father and mother agreed to separate and divide their assets equally. Under the terms of the arrangement, your father was to retain the Wilton Way property and some cash, and your mother was to have one of the Amelia Crescent units and cash. In accordance with the arrangement, you and your mother moved out of the Wilton Way property and left cash there for your father in the appropriate amount to satisfy the balance of his entitlement.

13 Following your father's release from gaol, he and your mother communicated by email. In that correspondence, he sought to change the separation arrangement. In place of what had been agreed, he demanded that the Wilton Way property be sold, and that the sale proceeds and all other assets be divided equally, with the result that he would finish up with one of the Amelia Crescent Units and your mother the other, and you would have nothing except for a refund of your $130,000.

14 Your father's attitude was that other payments which you had made towards the Amelia Crescent property were to be treated as rent and compensation for him for having been sent to gaol, and thus that you should be denied any part of the accretion in the capital value of the Amelia Crescent property since you acquired it. Your father engaged a family law solicitor to achieve that objective.

15 By that stage, your father detested you. He blamed you for the breakdown of his marriage and for having been sent to gaol. He claimed that you and your mother had framed him and had lied to the police about what he had done. He told a close family friend, Samir Hadzajlic, that he hated you because of what you had done to him and that he intended to ensure you received nothing. He said that, if you were to receive anything, it would have to come from your mother's share. He also told Mr Hadzajlic that he was scared of you, and believed that you still had a key to the house, and he showed Mr Hadzajlic a tomahawk which he kept beside his bed for protection, and said that, if you came near the house, he would cut you with it.

16 It is apparent from your record of interview, that you were aware of your father's attitude towards you, if not of all the details of his possession of the tomahawk and his threat to cut you with it if you came to his home.

17 You sought to resolve the impasse. You several times attempted to discuss the situation with your father, but on each occasion without success. On one such occasion, when you called him and announced yourself, he responded 'Who?', as if to make the point that he no longer recognised you. On some other occasions, he simply put down the telephone without replying. On Monday 5 July 2010, you went around to his house and spoke to him through the front door. He responded with a torrent of profane abuse, spoken in Croatian.

18 You spent most of the day of 8 July 2010 pottering around at home and playing poker on the internet. At some point during the day, you again spoke to your father by telephone. On that occasion, he said that he could not speak to you for the moment because he had people with him. That seemed to you to be a slightly more positive response than previously. You thought, or at least hoped, that it was an indication that your father was leaving the door open for further discussion. As you later told police, you had dinner at home at around 6.00 pm. As appears from a police forensic examination, you then logged on to an internet Poker site called 'Poker Stars' at 6.08 pm, logged on to a tournament at 6.14 pm, actively played until 7.22 pm, and then timed out at 7.23 pm. Then, at some time between 7.23 pm and 8.00 pm, you drove to your father's home.

19 What happened after that is not altogether clear. Although when first asked about the matter, you denied any involvement in your father's death, you later admitted to police that, when you arrived at his home, you turned off the power 'to flush him out' and then entered the house through an unlocked front door. There is no doubt that you turned the power off. The police found it that way when they came to investigate some days later. But, in view of your father's professed fear that you might come around, and what you told the police was his long standing habit of locking up at night before going to bed, I am not convinced that you found the front door unlocked. There is some evidence which suggests that you may have entered through a garage window, which you admitted to police you opened, and in the process knocked down some stacked materials.

20 Be that as it may, I infer that, when you arrived at your father's house, he was watching television in bed in accordance with his usual practice. Then, when you cut the power, it caused the television set to stop functioning. In all likelihood, that resulted in your father going downstairs to investigate and, unsurprisingly, taking his tomahawk with him. I am uncertain as to whether you then took him by surprise or he ambushed you. It is not improbable that you were waiting for him and that, when he came down stairs, you confronted him. That would be consistent with your objective of 'flushing him out'. On the other hand, I cannot exclude the possibility that he somehow got downstairs in the dark without you being aware of it and took you by surprise.

21 In one of the versions of events which you gave police, you said that is what happened. You claimed that you called out to your father, then saw a shadow, and then that your father hit you in the mouth with the blunt end of the tomahawk causing you a bloody nose, a loose tooth and a bruised shoulder. That may be so, but there is very little objective evidence that you suffered the injuries which you alleged.

22 It is clear, however, that, whoever surprised whom, you managed to prize the tomahawk away from your father, thereby inflicting injuries to his fingers; and, having so prized it away from him, struck him with it at least 10 times to the head and face, including not less than three times while his head was low to the floor. That implies that he was in a crouching or lying position on not less than three of the 10 occasions on which you struck him.

23 It is also clear from your own admissions that, although your father was still alive when you left him to die, you discarded your blood soaked clothes and shoes in a nearby dump-master; you went to a local store and purchased milk; and you returned home and resumed playing poker on the internet before spending the next two days getting drunk.

24 When first questioned by police, you denied any involvement in your father's death. And when asked to produce the clothes and shoes which you were wearing at the time in question, you produced other clothes and shoes. Then you said that you had gone to your father's house, but you denied turning off the power. Then you said that you entered through the open front door and saw a light in the study, and were walking towards it when you were attacked by your father. Then, when it was pointed out that the power had been turned off, you admitted that you had turned it off to 'flush out' your father or to give him a fright, but you said that you had no intention of killing him. Then, when asked how many times you had struck him, you said only twice, and only while he was standing; even though the forensic evidence is clear that you struck him at least 10 times and, of those, at least three times while he was lying or crouching.

25 The Crown case at trial was that you murdered your father because he was attempting to cut you out of your financial entitlements and because of the objectionable way in which he was behaving towards you and your mother. By acquitting you of murder and finding you guilty of defensive homicide, I take the jury to have concluded that you killed your father with murderous intent but that it was reasonably possible that you believed it necessary to act as you did in order to respond to a threat of death or really serious injury. Plainly, however, the jury were also satisfied that you did not have reasonable grounds for any such a belief. I sentence you accordingly.

26 The maximum penalty for the offence of defensive homicide is 20 years' imprisonment, which is the same as manslaughter. Like manslaughter, the circumstances in which defensive homicide may be committed are infinitely variable. In this case, I consider that a number of considerations combine to place your offence of defensive homicide at the upper end of the mid range of seriousness.

27 To begin with, you created circumstances propitious for the commission of the offence by unlawfully invading your aged father's home at night in the dark after turning off the electric power, so as to 'flush him out'.

28 Secondly, although it is possible that your father came at you with the tomahawk, and you suffered some injury as a result of him hitting you with the blunt end of it, such if any injury as you may have sustained was certainly minor and did not prevent you from taking the tomahawk away from him.

29 Thirdly, once you had got the tomahawk from him, there was nothing to prevent you from taking it and going home. You could have come back another day to pursue your discussions in a less threatening and more rational environment. Instead of that, you laid into him with it.

30 Fourthly, although the jury did not exclude as a reasonable possibility that you believed it was necessary to strike your father in order to guard against the risk of death or really serious injury - and I sentence you accordingly - the fact is that you struck him at least 10 times, three of which when he was crouching or lying on the floor. Given that you were confronted by nothing more threatening than a man of 74 years of age, of limited strength and restricted physical capacity, whom you had managed to disarm, your reaction was grossly disproportionate to any threat you may have faced and, even if you believed it was necessary, was in fact so far in excess of the way in which a reasonable man would have reacted in the circumstances as to merit very substantial criminal punishment.

31 For much the same reasons, I assess your moral culpability as being at the mid to upper end of the range and, therefore, above the point which the Crown submitted. Subject to the question of your psychological condition at the time, to which I shall come, I consider that the way in which you created circumstances propitious for the commission of the offence means that you are morally responsible for the tragedy which ensued.

32 You undertook your primary schooling in Croatia. When you arrived in Melbourne in 1971, your English was limited. Over the next four years you were educated at Mitcham Technical School, Kew High School, North Fitzroy High School and Collingwood High School. After beginning to repeat Year 11 at North Fitzroy High School, you left school midway through that year. You entered the workforce at age 17 and for the next 12 months you worked for Dinkum Pies. Then, at the age of almost 19 years, you began a career with Community Services, Victoria, starting at Willsmere Hospital in Kew and later moving to Kew Children's Cottages. Beginning in 1983, you had a three year break from Community Services, during which you undertook agency nursing work. Then you returned to work with the Department of Human Services at Janefield Training Centre and later at Statewide Forensic Services in Alphington. You worked within the disability area and were involved in developing and managing relapse prevention plans for clients with mild disabilities. Your position was that of a community services officer, which involved both administrative work and hands-on care. You are said to have loved that work and found it very challenging.

33 In 2005, a female member of staff made a claim against you that you had subjected her to sexual harassment in 2003. In the first instance, the claim was upheld but you appealed by way of a grievance procedure. While the appeal was pending, you were removed from your position with Statewide Forensic services and put to work in crisis accommodation houses in Kew and Parkville. While working in the accommodation facility in Kew, you were attacked by one of the inmates and you were subsequently threatened with violence by the same person when you were working at the accommodation facility in Parkville.

34 Your appeal against the sexual harassment claim was successful. The grievance procedure determined that you had been denied natural justice. Meanwhile, however, you had been diagnosed as suffering from Hepatitis C, thought to have been contracted when you were a child, and that precluded you from continuing to administer first aid to clients. In November 2005, you were put on to WorkCover benefits for work related stress and you ceased to work.

35 For approximately 14 months prior to your arrest, you attended on Dr Arthur Velakoulis, psychiatrist, at the Melbourne Clinic, and a psychologist, Mr Tony McHugh. You were assessed as depressed and your general practitioner prescribed the antidepressant Cipramil. Later, Dr Velakoulis increased the dosage from 20 mg to 60 mg.

36 On 30 July 2011, you were assessed by consulting clinical and forensic psychologist, Mr Jeffrey Cummins, at the request of your solicitors. In his report dated 4 August 2011, Mr Cummins stated that you are of at least high average intelligence and that you do not present as psychotic or schizophrenic or as having a personality disorder, but that you are severely depressed. Mr Cummins also opined that, at the time of the killing, and for at least two years prior to it, you were suffering from a Dysthymic Disorder (DSM IV-TR Code 300.40), which is a depressive mood disorder characterised by feeling depressed for most of the day and for more days than not, and it is very probable that there was an exacerbation of your depressive symptomatology the result of the conflict which developed between your mother and father and between you and your father in the months leading up to the killing. In the result, Mr Cummins said, your perception and judgment were most probably compromised at the time of the killing.

37 I accept that you are remorseful. Although you initially lied to police and sought to conceal your involvement, it is apparent that you truly regret having taken your father's life and the consequences of his death for your mother, brother and other members of the family. You did not plead guilty to defensive homicide, which was your right, although one might suppose that you would have done so if you were truly remorseful. But, in the end, you made a large number of admissions to police and you co-operated with them in a manner which I take to imply that your initial reaction was born more of shame and fear than defiance. I had the opportunity of watching you throughout the trial. Time and again, your reaction to aspects of the evidence concerning the killing and the injuries inflicted on your father appeared to me to be the result of a deep sense of grief and contrition. That impression is supported by Mr Cummins' report, in which he stated that upon examination you spoke in a remorseful manner concerning your father's death and in a responsible and insightful manner concerning the role you played in it.

38 Your prospects of rehabilitation are good, at least in the long term. You have no previous criminal convictions and you are otherwise a person of very sound character. I have before me a number of testimonials, including testimonials from your ex-wife, your son, Matthew Jewell and your daughter, Samantha, as well as from other persons which whom you have worked or been associated over the years. They all speak highly of your character and approach to life. They show that, up to the time of the killing, you had contributed significantly to the quality of the lives of those around you and, more generally, to society through your work in caring institutions.

39 In the circumstances, it think it most unlikely that you will re-offend and I am strengthened in that conclusion by Mr Cummins' report, in which he stated that, in his opinion, your offending was situationally motivated, and triggered by the events which occurred at the home address immediately prior to the killing, and that your prospects for long-term rehabilitation are very favourable.

40 It follows that the principal sentencing considerations in your case are denunciation, general deterrence and just punishment. I do not consider that there is any need for specific deterrence.

41 In your favour, it is evident that your father behaved abominably towards you, and towards your mother. It is also plain that his misbehaviour affected you most adversely; which is hardly surprising. One can readily imagine how hurtful it would be to be despised and shunned by one's father in the way that the deceased treated you. One can also readily conceive of the pain it would cause to see one's father behave towards his mother as the deceased behaved towards yours. I accept that it was your father's misbehaviour towards you and your mother, and your wish to try to resolve the problem, rather than any concern about financial entitlements, which led to you going to his house on the night of the killing.

42 So to say, however, does not mean that the way in which your father behaved excuses you. For no matter how much he provoked you, you have committed an awful crime of killing him - a 74 year old man of significant physical infirmity - by striking him dead many times with an axe at night in his own home in the circumstances I have stated. Perhaps you convinced yourself that it was necessary to do what you did because your feared death or really serious injury. For that reason, you have not been convicted of murder. But it does not much lessen the gravity of what you did. The most that can be said in your favour, as your counsel put it on the plea, is that, as a result of all the pressures to which you were subjected in the months leading up to the killing, you snapped and lost control.

43 Your counsel did not place a great deal of emphasis on Mr Cummins' report and he made clear, on your instructions, that he did not suggest that it should lead to any particular reduction in the sentence to be imposed on you. Nevertheless, I allow that the need for general deterrence and denunciation is a little less than would otherwise be the case, because of what I perceive to be your reduced perception and judgment, and consequently reduced moral culpability, the result of the Dysthymic disorder and exacerbated depressive symptoms from which you were suffering at the time of the killing.[1]

44 The difference, though, is slight. It remains that you have committed an offence of a nature and gravity which demands denunciation and general deterrence, and thus substantial punishment. There is no suggestion in the expert material before me, or otherwise that the sort of sentence to be imposed on you should be other than a substantial term of imprisonment; or that, because of your condition, prison would weigh more heavily on you than it would on an offender not similarly afflicted; or that prison would have a significant detrimental effect on your mental health.[2]

45 As I have observed, you did not plead guilty. That was your right and you are not to be punished for exercising it as you did. At the same time, because you did not plead guilty, you are not entitled to the discount on sentence which is ordinarily allowed in recognition of the utilitarian value of avoiding the cost and ordeal of trial. I do take into account, however, that your legal advisers explored the possibility of the Crown accepting a plea of guilty to defensive homicide, only to have the overture rebuffed, and that your defence was conducted most courteously and circumspectly in a manner evidently designed to cause the least possible pain and inconvenience to members of your family and other witnesses.

46 Your brother, John, and his partner, Amanda Hayes, have both made victim impact statements. You heard them read out to the court during the plea. As you heard, they tell of deep hurt and distress, and a deep sense of loss, the result of your father's death and, even more so, the violent nature of it. To the extent I am able, I take that into account. I sentence you on the basis that your brother is devastated by your father's death and the effects of the trial and that Ms Hayes grieves with him and for him.

47 I am required by law to have regard to current sentencing practices. As Hansen AJA observed in DPP v Edwards,[3] sentencing practice in defensive homicide cases may be regarded as being in its infancy. Nevertheless, there are a number of cases in which sentences for defensive homicide have been imposed in this court and in the Court of Appeal and, consistently with what the High Court said recently in R v Hili,[4] they are capable of providing something of a yardstick against which to compare the sentence to be imposed.

48 As is to be expected, the facts of them vary widely, as do the sentences imposed. They range from R v Spark,[5] in which a head sentence of seven years' imprisonment with a non-parole period of four years and nine months was imposed on a 39 year old offender on pleading guilty to a killing with a baseball bat during an argument in which the victim threatened to inflict sexual abuse;[6] to R v Wilson[7] in which a head sentence of 10 years with a non-parole period of seven years was imposed on an 26 year old offender on pleading guilty to a killing with a knife during the course of a drunken boarding house brawl. Others include R v Taiba[8] in which a head sentence of nine years' imprisonment with a non-parole period of seven years was imposed on 32 year old drug addicted alcoholic on pleading guilty to defensive homicide committed while acting under the influence of alcohol and drugs; R v Evans[9] in which a head sentence of 10 years' imprisonment with a non-parole period of seven years was imposed on a 25 year old offender on pleading guilty to defensive homicide in the course of a boarding house fight over money; R v Middendorp[10] in which a head sentence of 12 years imprisonment with a non-parole period of eight years was imposed on a long time drug and alcohol abuser on being found guilty of defensive homicide constituted of killing his domestic partner in the course of a drunken fracas; and R v Ghazlan[11] in which a head sentence of 10½ years with a non-parole period of seven and a half years was imposed on a severely psychiatrically affected offender on pleading guilty to a count of defensive homicide constituted of retaliating with a knife to being tripped by the victim. Arguably the most relevant comparator for present purposes is R v Creamer,[12] in which a head sentence of 11 years' imprisonment with a non-parole period of seven years was imposed on a 53 year old female offender suffering from a major depressive disorder, but with no prior convictions and good prospects of rehabilitation. She was acquitted of murder but convicted of defensive homicide (to which she had offered to plead guilty) for stabbing her husband to death with a knife in the course of a fight because, she said, she feared that, in light of a history of family violence, he was going to kill her.

49 Finally, I have considered the possibility of setting a shorter than usual non-parole period in view of your age, prospects of rehabilitation and what I assess to be the low risk of you re-offending. I note, however, that Mr Cummins' report speaks only of your prospects of rehabilitation in the long term and does not suggest that they would be aided by a longer than usual period of parole supervision in the community. I must also keep in mind the need for denunciation and just punishment and avoid setting a non-parole period so short that it may tend to undermine public confidence in the sentencing process.

50 Bearing in mind each of the considerations to which I have referred, and doing my best to balance them one against the other in accordance with the Sentencing Act 1991, I have determined that you should be sentenced to 11 years' imprisonment and that you should serve not less than seven years before being eligible for parole.

51 Zlatko Svetina, I sentence you for the offence of defensive homicide of your father, Tomislav Svetina, to 11 years' imprisonment. I set a non-parole period of seven years. I declare that the number of days already served under the sentence is 385 days. I direct that the fact of the declaration and its details be entered in the records of the court.

52 Finally, I shall make a forensic sample order and a forfeiture order in the terms which have been submitted by the Crown.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32], (1) and (3).

[3] [2009] VSCA 232.

[4] [2010] HCA 45; (2010) 272 ALR 465.

[5] [2009] VSC 374.

[6] See also R v Smith [2008] VSC 617: seven years with non-parole period of four years and six months, guilty plea by youthful offender.

[7] [2009] VSC 431.

[8] [2008] VSC 589; cf R v Baxter [2009] VSC 178: eight and a half years with five and a half years on plea of guilty to defensive homicide in context of a boarding house fight.

[9] [2009] VSC 593.

[10] [2010] VSC 202.

[11] [2011] VSC 178; see also R v Martin [2011] VSC 217: eight years with five years on plea of guilty to defensive homicide by intellectually disabled offender who killed a 79 year old sexual predator after the latter made improper sexual advances.

[12] [2011] VSC 196.