R v Vazquez [2012] VSC 593

3 Mr Tosevski was released from prison in late 2008. He was aggrieved by the damage to his car which was apparently assessed at approximately $15,000. He blamed you for it. Your older sister is married to Fadi Haddara's brother. You were close to Fadi Haddara and, according to the undisputed amended summary of prosecution opening, looked up to him as an older brother.

4 You and Mr Tosevski had been friends before his imprisonment. You fell out over this drug debt. Mr Tosevski made intermittent attempts to recover the cost from you of the damage to his car.

5 On 13 September 2010, he made another attempt. An arrangement was made to meet with your father at his business office at 12/2 Techno Park Drive, Williamstown. At 7.20am, your father called Mr Tosevski. That call lasted for 56 seconds. Mr Tosevski subsequently told Ms Jeka he was going to your father's office to endeavour to recover money for the damage to his car.

6 Some time before 10.38am, you and your father travelled to his office in Techno Park Drive. He remained in his office and you secreted yourself in a small adjacent storeroom. Your sawn-off double barrel shotgun had previously been hidden in that room.

7 At 10.38am, Mr Tosevski parked his car and walked towards 2 Techno Park Drive. He approached and entered your father's office - number 12. He was unarmed. A verbal argument between Mr Tosevski and your father ensued. You heard raised voices.

8 You entered the room. Mr Tosevski turned towards you. You raised your firearm at a range of a metre or less and shot him in the head, killing him instantly. You or your father on your behalf then placed two unfired shotgun cartridges in the right hand pocket of Mr Tosevski's track suit pants.

9 At 10.45am, your father telephoned emergency services. He told the operator that there had been a shooting at his office. He said that an ex-friend of his son had come into his office and threatened him with a gun. He said that you grabbed the gun from the man and shot him. All of these statements were lies.

10 You adopted this lie in your dealings with police. At the scene, you told Detective Senior Constable Murphy: "... he come in with a shotgun and tried to kill my fuckin' old man and I wrestled him and fuckin' it went off ...". You perpetuated the lie in a formal police interview conducted later that day.

11 The prosecution have accepted your plea of guilty to defensive homicide. It follows that I must sentence you on the basis that at the time you shot Steven Tosevski, you genuinely believed that it was necessary to do that to protect yourself or your father from death or really serious injury.

12 I regard this as a grave example of this offence and I assess your objective criminality as high. Whilst I must accept that you held the genuine belief I referred to a moment ago, by any measure that belief was entirely unreasonable. You hid in an adjacent room, armed yourself with a sawn-off shotgun and heard raised voices. Even accepting the history of recent acrimony between you and the deceased, your response to hearing those raised voices was grossly disproportionate to any threat that your father may have faced. Mr Tosevski was unarmed and you gave him no chance of retreat. I regard your conduct in laying a false trail for the police, perhaps instigated by your father, as an aggravating circumstance. As I have observed, you or your father in your presence placed ammunition in Mr Tosevski's pocket and you perpetuated your father's lie that Mr Tosevski was armed and that the gun discharged whilst you were disarming him.

13 You are entitled to a sentencing discount arising from your plea of guilty. You have saved the community the inconvenience and expense of a criminal trial. I am not prepared to infer any remorse from this plea. I consider that when the plea of guilty to defensive homicide became available to you, in all the circumstances it was incumbent upon you to take it. As I will indicate shortly, however, I am prepared to infer some contrition or remorse from other sources.

14 You are now 27 years old. You come from an apparently sound family background. Your counsel submits that this will provide you with a solid base for reintegration into the community upon your eventual release. With reservations, given your father's role in these events, I accept this. You failed to complete Year 10 at Williamstown Secondary College and your work history since has been intermittent. You have abused alcohol and drugs, including marijuana and amphetamines. This would interfere with the employment capacities of any person, but for you there were underlying health issues which, I accept, exacerbated the deleterious effects of these substances.

15 At about the age of 10, you were diagnosed with autoimmune hepatitis. This is a serious condition and, in your case, over a period of time has resulted in you developing cirrhosis of the liver. Professor Robert Jones, director of the Liver Transplant Unit at Austin Health, has provided a report to the Court. It is unnecessary to recite the full detail as to your current condition. Your underlying autoimmune hepatitis can be medically managed under the care of a specialist hepatologist. Cessation of consumption of all other liver toxins is vital. There is a chance that your liver disease will progress to established liver failure, in which case a liver transplant would be indicated. This, too, is not without risks, ranging from death to less severe complications.

16 Professor Jones was understandably cautious about expressing any views on your life expectancy. What can be said with certainty is that if you do not manage your illness well by expert medical intervention and total abstinence from liver toxins, including alcohol and drugs, your life expectancy will be reduced, probably dramatically.

17 It is accepted on your behalf that you will receive adequate medical treatment in prison, which is, theoretically at any event, an alcohol and drug-free environment. At the conclusion of passing this sentence, I will ensure that Professor Jones' report is provided to Justice Health and held on file for the parole authorities.

18 Whilst I am of the view that there is a high likelihood that your illness will be managed better in custody than you have been able to in the past, I also accept that because of it, your imprisonment will be more burdensome than that of the ordinary gaol inmate. I take this, and the possibility of a reduced life expectancy, into account as factors that operate to moderate the sentence that I will shortly impose.

19 It was put on your behalf that at the time of offending, you were suffering from a post-traumatic stress disorder. A report from Dr Michael King was tendered in support of this proposition. His opinion was not based on some speculative post offence diagnosis. In 2009 you were kidnapped and tortured by a group of young men. Upon your release, you were hospitalised and a diagnosis of post-traumatic stress disorder was then made. I do not consider this condition reduces your moral culpability to a significant degree. You secreted yourself in the adjacent room to your father, you knew Mr Tosevski was coming and you armed yourself with a sawn-off shotgun. Any hyper-vigilant spontaneous reaction to Mr Tosevski's raised voice, if those adjectives are appropriate at all, occurred only after you took those measured preliminary actions. I do accept, however, that you do continue to suffer from post-traumatic stress disorder and I also accept that this, together with the understandable anxiety related to your illness, may make your imprisonment more burdensome.

20 Mr Morrissey SC, on your behalf, contended for a modest "Verdins"[1] discount on account of the post traumatic stress disorder that I have referred to. Whilst I accept that your imprisonment may be made more burdensome by this condition, and it may in some very modest way have affected your ability to make calm and rational choices, thus impacting upon your moral culpability, I consider that these factors operate only modestly to mitigate your otherwise very serious offending.

21 Your prospects for rehabilitation are entirely dependent upon you taking control of your life. If you relapse into drug taking and alcohol abuse, you will not see middle age. You have the strongest incentive possible to avoid them. Your family will offer you support both emotionally and financially when you are released, however eventually it is up to you. Given your age and relative lack of prior convictions, and given the incentive you have to take control of your life, I assess your prospects of rehabilitation as reasonably good.

22 A number of references were tendered on your behalf which fortify me in this conclusion, as does the productive use that you have made of your time on remand. I also accept that you now exhibit some remorse for your actions. This remorse was not immediate - you lied and were complicit in planting false evidence on the body of Mr Tosevski. I accept, however, that with time you have come to accept the gravity of your actions and the impact they have had on Mr Tosevski's family. The references I have referred to speak of it, as does Dr King. Mr Tosevski was once your friend. His family offered you friendship and I accept that you understand now the pain you have caused them.

23 That pain is starkly apparent in the Victim Impact Statements I have read. Steven Tosevski's mother and father speak of how their lives have forever been changed. No words are adequate to describe their grief. Grief that you have caused. Their suffering will not conclude upon the passing of this sentence - it will endure, as will the suffering of his sisters, his partner Pam, and his extended family. I am obliged to take these impacts into account.

24 As I have indicated a few moments ago, there are a number of factors that operate to your benefit in this sentencing process, but they comprise only part of what I must consider. Objectively assessed, this is a most serious offence. As I have said, I must sentence you on the basis that you held a genuine belief that you were acting in necessary self-defence. I regard this belief as grossly unreasonable. Your offending is aggravated by the use of a modified firearm and the false trail you attempted to lay. General deterrence is a factor that looms large in this exercise, despite the factors that operate to your benefit. People who are inclined to use loaded firearms to solve verbal arguments must understand that the community simply will not tolerate this and that long prison sentences await them. The community is entitled to expect this type of conduct to be denounced and punished.

25 I should indicate that, but for your serious liver illness, the sentence that I am about to impose would have been considerably longer than it is. Stand up please.

26 On the charge of defensive homicide, I sentence you to ten years' imprisonment. I direct that you serve seven years before becoming eligible for parole.

27 I declare that 520 days not including today have been served by way of pre-sentence detention.

28 I declare, pursuant to s 6AAA of the Sentencing Act 1991, that, but for your plea of guilty, I would have sentenced you to twelve years' imprisonment with a minimum term of nine years.

[1] R v Verdins [2005] VSC 479; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.