REGINA v. BADANJAK [2001] NSWSC 1041

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70024 of 2001 GREG JAMES, J.

FRIDAY 16 NOVEMBER 2001 REGINA v. JOSIP BADANJAK

1 HIS HONOUR: On 3 September 2001, the offender Josip Badanjak pleaded guilty to the murder of his wife Maria Badanjak. He had been charged that at Blacktown on 24 January 2000 he had murdered his wife by stabbing her to death at the premises at Blacktown the family had owned. He has been in custody since that date, 24 January 2000 and his sentence should date from that date. 2 He pleaded guilty on 3 September 2001 following investigation of matters referrable to his mental condition. Those matters are referred to in the report of Dr. Bruce Westmore of 27 September 2001 and in the report of Janet Deblin, consultant psychologist, of 26 June 2001. Dr. Westmore's report discloses that when he saw the offender for re-examination, the offender expressed his sorrow for the death of his wife, that "it's very heavy on my soul and I'm very sorry for that. I can't bring her back and it is very hard to talk about that". He had in his history given to that doctor referred to what all the evidence confirms was the tempestuous and at times violent family relationship. In particular, he had referred to his wife's anger because he would not stop drinking and because of the difficulties that presented to the family, not only in terms of the personal relations, but also to money problems. He referred to his alcoholism and to his painful back condition. He referred to his forgetfulness and the observations of him by relatives that when he was drunk he was "terribly bad". 3 Dr. Westmore referred to a cultural difficulty underlying the relationships between the offender and his wife and the offender and his children. He referred to acute stressors in the relationships, in particular, occasioned by his belief that his wife was acting inappropriately. Dr. Westmore concluded that although on the day in question the offender had shown vicious aggression, that aggression appeared to be specific to the object of the aggression, that is his wife and to the occasion. Dr. Westmore was of the view the man did not represent a danger to the general community. Dr. Westmore did recommend, however, that the offender consider entering sobriety. He concluded that the offender was now aware of the gravity of what he has done and the impact on him and his children. He has been cut off from contact by his children and no longer has access to his grandchildren. This is likely to cause him long-term distress and will mean that he will be entirely abandoned by his family for the future on his release. 4 Dr. Westmore had examined the offender in July 2001 initially. He did that for the purpose of ascertaining whether any mental state problem existed which should appropriately be raised at trial or on plea. The history given to Dr. Westmore by the offender except in one matter, that is relating to the suggestion by the offender that the stabbing occurred in self-defence or as a result of having previously been stabbed by his wife in circumstances where she was not defending herself against him, generally accords with the facts as proved before me. Dr. Westmore in the report he gave following that initial examination referred to the offender's admission of having stabbed his wife, "how many times he could not say" and that the offence was committed as an acute episode in a context of chronic marital conflict. Dr. Westmore concluded that although there were stressors and suggestions of personality or psychiatric problems, he could find no clear history to indicate that the offender "was suffering from a major depressive illness prior to this incident" and further, he concluded there was "no clear history supportive of the presence of a psychotic disorder". 5 The report from the psychologist recorded that she similarly was of the view that there was no evidence of psychotic illness but she expressed the view that the offender had described long-standing symptoms consistent with a depressive illness, that his presentation seemed odd at times and often incongruent with the seriousness of his predicament and the circumstances which led to the murder. She suggested that he may have incurred head injuries in the numerous work-place accidents the history given to her establishes he had suffered. She suggested there was "considerable cognitive dysfunction on the basis of his presentation and the neuropsychological screening tests administered". She attributed this to alcohol related brain damage or a demented illness, though she referred to the possibility of a cerebrovascular accident or some such similar event, given the history of heavy drinking and smoking. She does suggest that there was a degree of behavioural disinhibition due to organic brain damage to be considered in the context of alcoholic disinhibition arising from the admitted substantial ingestion of alcohol by the offender on the day in question. 6 In a follow-up report of 16 October she refers to the possibility that the offender's intellect was in the lower than average range of normal functioning and that there had been an impairment arising from a gradual deterioration of intellectual ability over time possibly associated with those factors to which I have shortly earlier referred. 7 In that context, the plea to murder was entered. During argument and again before me today the question of whether the offender should be treated for the purpose of considering the utilitarian value of his plea as having entered an early plea was discussed. The Crown wishes to make no submission to suggest that it was not an appropriately early plea since, in cases of murder, such questions as were investigated here should entirely properly be investigated. There was no attempt, apparently at any stage, to put in issue the commission by the accused of the fatal act, what was sought to be investigated was to ascertain his mental state at the relevant time. 8 It is submitted on his behalf that he should receive as much as possible of the discount appropriately to be awarded for an early plea and, in addition, some further discount arising from his expressions of remorse and contrition to the psychiatrist to which I have already referred. 9 An examination of the reports indicate that there has been over the years some degree of intellectual decline. An examination of the histories taken in conjunction with the offender's prior circumstances discloses an appalling saga of violent ill treatment of his family. That is consistent with the alcoholism, the intellectual decline and increasing cognitive deficits. It may, however, explain the background to the commission of this offence, it does not in any way excuse it. 10 In gaol it would appear some greater degree of clarity has been given to the offender's realisation of his own position, no doubt arising from an inability to ingest the quantity of alcohol habitually that he had formerly ingested, but there is that degree of insight that allows him to understand what he has done and to express the remorse for it that he has to the extent at least as the psychiatrist has described. I accept he has some greater degree of insight now than he had and that there is a degree of remorse and sorrow. It is therefore appropriate that I give value to the plea on both of those heads as submitted. 11 The appropriate value was the subject of oral submissions and I would accept the submissions that he should be entitled when considering the Regina v. Thompson & Houlton (2000) 49 NSWLR 383 criteria to a discount of 15%. I will in addition take into account his cognitive deficits to some limited extent only, since it appears they have only a limited part to play in depriving him of the controls to be expected of an ordinary person in his circumstances, and will take into account his cultural background for the purpose at least of enabling some understanding to be given to the rage and frustrations he gave in to on this occasion and to the contrition and remorse that he has shown. He expressed the view that his crime was heavy on his soul. He will have a number of years in custody and the rest of his life to reflect upon that matter. 12 The short facts of the commission of this offence were set out in an extensive document by way of chronology provided to me as part of a large volume of sentencing materials by the Crown. That volume is Exhibit A. The content of it is not disputed, nor is any matter in it objected to. 13 Shortly, the offender was born on 10 May 1948 in Croatia. His wife was some five years younger, similarly born in Croatia. They married there and migrated to Australia in December 1969. The offender taught himself the English language and worked as a carpenter. There are three children of the marriage, Jagoda Rose, Ankica Badanjak and Stjepan Badanjak. About 1978 the offender and the deceased purchased the family home at Lance Crescent, Greystanes. 14 On 19 December 1983 the prisoner appeared at Parramatta Local Court in respect of an assault on his wife and received the benefit of a recognisance for 12 months. Three years later, the offender and the deceased separated for approximately 12 months and the offender lived at another address in Merrylands. Subsequently, there have been apprehended domestic violence orders and assault prosecutions of the offender. The apprehended violence order number one, originally granted in February 1989, was extended. A condition was imposed that the offender refrain from alcohol. The relationship was marked by the deceased's wife having to resort to the protection of the court on a number of occasions. It is not necessary to give the details of the various episodes in the extensive history. The children have grown-up during a relationship, which is established to be marked continuously by episodes of drunken violence on the part of offender. 15 In about 1992, Jagoda, who is now aged 28, moved out. She has had limited contact with her parents thereafter, though she had resumed contact with her mother prior to her mother's death. 16 The tempestuous relationship continued after Jagoda moved out and there was a further apprehended domestic violence order obtained. The offender, who had moved from the home, moved in to premises at 113 Newton Road, Blacktown by agreement with the then tenant, Mr. Kevin Francis, to enable him to live separate and apart from his wife in 1995 to 1996 with his son Stjepan. Then he returned to Croatia for about four months. Stjepan returned to live with his mother. Later, the offender again lived at Newton Road, Stephen returning again to live with him once more. Some six or seven months later he moved back to Bungarribee Road where the deceased was living to share the accommodation with her and once again Mr. Francis resumed his tenancy of the premises at Newton Road, Blacktown. 17 In 1998 there was another dispute between the offender and the deceased. Once again the offender moved out. 18 In mid-1999, police brought the offender to the Newton Road address because of arguments taking place between the offender and the deceased at Bungarribee Road. 19 In May 1989 the police attended the Bungarribee premises as a result of a complaint by the deceased of the offender being intoxicated and behaving in a loud and aggressive manner. The deceased and her daughter had taken refuge in a bedroom. 20 In about January 2000 the deceased discussed with Jagoda, her daughter, the possibility of moving out of the Bungarribee Road address and living somewhere else together. The offender and Stephen were not to be part of the move. At that point the deceased informed Jagoda that the offender was not happy with this proposal. 21 Jagoda last had contact with the deceased about 3.30 pm on 24 January 2000 by telephone when she could hear the offender's voice in the background saying that coffee should be brought to him. 22 At about 4.15 pm on that day the deceased saw her good friend Mila Tirkes. She looked pale and was quiet. She complained of a very heavy headache. 23 At about that time, at the Newton Road Blacktown address, Mr. Francis was approached by the offender. The offender referred to his only having had three beers at the pub since there was no-one that he knew. He had a further beer and stayed for about half an hour. Whilst there, he told Mr. Francis that his wife had packed his and his son's clothes as she wanted them out. His son had apparently had some mates around drinking and had given her cause for complaint. He told Mr. Francis that she was going to sell the premises at Bungarribee Road and get a smaller place for herself and Ankica. According to Mr. Francis, the offender then said to him that he intended to go to his home and knife his wife, "that will sort things out". He said to Mr. Francis that he had told his wife he could not move in with Mr. Francis and that what he would do is to go to his home and kill his wife and Ankica. Mr. Francis told him not to be stupid, that he would throw his whole life away. Mr. Francis expressed the view that the offender appeared sober "for once". 24 At 6.25 pm the police emergency 000 service was dialled by the offender who told the receptionist that he had killed his wife and asked the police to attend. On arrival, he was standing at the front door of the premises. He was arrested and participated in due course in an electronically recorded interview. 25 During that interview, he admitted he had stabbed the deceased with a kitchen knife that had been found by police on the kitchen bench top. In the interview he indicated that when he entered the premises, the knife was on his wife's lap, that he did not know how "she stabbed me or she stabbed herself". He said that he was not drunk but had had maybe just a little alcohol, five beers. He expressed the view that he could not be drunk on five beers. When he entered the premises, his wife was on the telephone sitting on a stool. He stabbed her while she was on the phone. The initial account that he gave was that she grabbed his arm, he grabbed the knife from her lap and thrust it into her "when she was fighting with me". He stabbed her, he said he did not know how many times, but it must be possibly in the chest area, that she fell to the ground and that he stabbed her by thrusting the knife into her. His account was to an extent incoherent. 26 It appears that Ankica came home shortly after her mother's death, saw her father wiping the blood down the sides of his white woollen jumper and he said to her, "I just killed your mother. She's dead. I've had enough of her, she's dead", or words to that effect. There was a suggestion that he had said words to the effect that "now the rest of you kids are finished. There's going to be no more Badanjaks after me". 27 The medical report disclosed that Mr. Badanjak had sustained some wounds to his arms. Those wounds were consistent with recent stabbing injuries from a hard sharp object. They were not consistent necessarily with his wife stabbing him. They were explicable upon the basis that he may have inflicted injuries on himself in the fight. 28 The injuries to his wife were described in the report of Dr. Peter Ellis who referred to a number of stab wounds, in particular, one on the left side of the lower chest wall 1.5 centimetres long extending through the ribs and penetrating the pericardium. There was a second wound close by which extended again through the left fifth rib cartilage, entering the lateral part of the anterior wall of the pericardium and penetrating the right ventricle. Another wound on the left upper anterior chest wall 1.6 centimetres long did not penetrate the rib cartilage. A further wound on the right upper chest wall passed through into deep skeletal muscle, but did not penetrate the chest cavity. A wound on the anterior surface of the right biceps area damaged that arm, but the damage did not extend into the deep tissues. Another wound was both a combination stab and incised wound and that was sustained to the left biceps. There was a further wound to the left forearm and other minor scratches and lacerations. A stab wound, however, was noted on the left lower neck five centimetres long and damaging the left jugular vein. It appears that that wound comprised at least two separate wounds taken together. Two further wounds were found, one on the left upper triceps and one on the posterolateral surface of the left triceps. There was a stab wound behind the right ear. There were wounds consistent with being suffered whilst the deceased was attempting to defend herself. 29 It is apparent from that account that there is ample material from which I can conclude and do conclude that the offender in a frenzy occasioned by his anger stabbed his wife numerous times. The evidence does not allow me to say what was the first blow, but the evidence is certainly not inconsistent with the proposition he put to the police and which has been submitted by his counsel as appropriate, that is that he first stabbed her in the throat. 30 It has been submitted that I should not conclude that the killing was premeditated. I do not accept that submission. On what he said to Mr. Francis, he plainly did contemplate killing his wife. Whether that intention had entirely crystallised at that time is not clear, but certainly at the time at which he took the knife from his wife, it seems perfectly clear that because of his rage, he had lost self-control and was determined to kill his wife. 31 It is accepted that there was no attempt on his part at any time to conceal what he had done. He called the police immediately and it is to those two factors I refer in particular when I confirm that it is appropriate that he be treated on his plea as having the entitlement to the discount to which I have already referred. 32 The submission is made that general deterrence should play a less significant role in these circumstances than it otherwise may. I do not see that the offender is suffering from some such substantial condition as would warrant some special mitigation of sentence, which might otherwise be appropriate. I am unable to see in the history of this matter why - the emotional relationship having reached this culmination - there should be some particular mitigation of sentence otherwise appropriate having regard to the requirements of general deterrence and specific deterrence. His prior statement to Mr. Francis and his subsequent statement to his daughter in my view do not operate to aggravate culpability, but do deprive the offender of the opportunity to assert that the killing of his wife and this episode of violence should not be treated as otherwise than coming in the context of the violence that he had inflicted on his spouse on so many occasions during their marriage. 33 The Crown does not submit that there should be any particularly marked emphasis in the individual circumstances of this case on personal deterrence. I understand that is a submission that the component of personal deterrence should be given its ordinary weight. I accept that submission. 34 In the discussion on sentence, I referred counsel to the decisions in Regina v. Macadam-Kelly [2001] NSWCCA 170 and Regina v. Elphick [2000] NSWSC 977. In those decisions I had regard to the view the Courts have taken of those who kill their spouse for failing to accede to their wishes. I cited the remarks of Allen J in Regina v. Cheung (CCA unreported 11 December 1995) as to a submission that crimes such as this are to be mitigated because the offender has for some personal reason attempted to impose his view of how someone else should live their life upon their victim. In Elphick (supra), I referred to the pattern of sentencing in spouse murder cases at paragraphs 27 and 28 of that judgment. I have regard to those matters here. 35 I am of the view that there is limited contest, if any contest, with what is contained in the reports of the psychologist and psychiatrist. Notwithstanding the Crown's submission in reliance on Regina v. Qutami [2001] NSWCCA 353, I see nothing in the histories given to those reporting that I would not accept, except for the proposition that there was any element of self-defence or physical provocation giving rise to what the offender in fact did. Not only was there no such matter as would found a defence, but there was no such matter as far as I can see which would have in any way contributed to the offender doing what he did. The suggestion that there was is inconsistent with what he said to Mr. Francis. 36 It is apparent that this killing was committed with intent to kill whilst the offender was in a high emotional state, a state which in him, caused him to give vent on this occasion, as it had previously, to his rage by domestic violence, although on this occasion it occasioned violence to a greater extent with the appalling and fatal consequences. What he has done has been to deprive himself of his life's partner and to deprive himself of contact with his children. 37 One of those children has provided a victim's impact statement. Section 27 of the Crimes (Sentencing Procedure) Act 1999 applies. Division 2 of that Act dealing with victim impact statements to offences dealt with on indictment in the Supreme Court resulting in the death of a person. Section 28 of that Act provides that this court may, if it considers it appropriate to do so, receive and consider the victim impact statement at any time after it convicts but before it sentences an offender. If the primary victim has died as a result of the offence, the court must receive a victim impact statement given as here by a family victim and acknowledge its receipt, which I do. 38 Section 28(3) provides that the court may make any comment on it that the court considers appropriate. The Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. 76 has referred to the inappropriateness of the court having regard to any particular value placed on the life of the deceased by those near and dear to the deceased and that when considering punishment for the offence, such a statement should not be taken into account for the purpose of fixing punishment in the light of any such value. I do not consider the statement provided to me for that purpose. I do, however, note the tragedy in the family life referred to in this statement and the appalling consequence expressed by the author for her of being deprived of her mother. The court in every such case is cognisant that the offence to which the offender has pleaded guilty is one involving the unlawful taking of human life and that that means, of course, the depriving of others of the society of the deceased. 39 I turn then to the appropriateness of the sentence. Having regard to the findings I have made as to the offence, concerning the circumstances of the offender at the time of the commission of the offence and the submission that it was appropriate in the circumstances to consider a sentence containing a non-parole period, a range for which would extend from approximately 12 to 16 years, a substantial sentence is called for. 40 I pay regard to the offender's age and lack of family circumstances liable to lead to a lack of support for him at the expiration of the inevitably long period of confinement he must suffer but do not regard special circumstances as made out. 41 In all the circumstances, I conclude that the appropriate sentence I should pass is a sentence of 16 years with a non-parole period of 12 years. 42 Josip Badanjak, I sentence you to 16 years imprisonment to date from 24 January 2000. In respect of that sentence I impose a non-parole period of 12 years to date from that date.

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