The Queen v Bacak [2015] VSC 474

Supreme Court of Victoria|2015-09-04|Before: LASRY J

CRIMINAL LAW - Sentence - Assist an offender - Plea of guilty - Assisting in disposal of the body of the deceased - Undertaking to give evidence in the trial of principal offender - Significant remorse - Good prospects for rehabilitation - Non-custodial sentence appropriate - Community Corrections Order imposed.

1 On Friday 31 July 2015 in this court, you pleaded guilty to one charge of, put succinctly, assisting an offender. The facts giving rise to this charge occurred on 30 and 31 October 2014 and the principal offender was John Butorac. Your offending concerned the disposal of the body of a man alleged to have been murdered by Butorac.

2 Following your plea of guilty, I heard a factual opening and submissions from the Prosecutor and a plea from Mr O'Connell of senior counsel on your behalf. Having given consideration to these submissions it is now my duty to sentence you for this offence. The maximum penalty for assisting an offender pursuant to s 325(1) and (4) of the Crimes Act 1958 is 20 years imprisonment, given the penalty for the principal offence of murder.

3 In the early hours of 31 October 2014, Country Fire Authority members were called to a car fire on the Bulla-Diggers Rest Road in Bulla. The fire had been started by the use of a flammable solvent. The badly burnt body of the deceased man Kenan Balikel was found in the boot of the vehicle - a Peugeot 407 station wagon. Mr Balikel had been the owner of the vehicle which was, at the time, unregistered.

4 An autopsy was conducted later that day which revealed that the deceased had died as the result of a crushing, high impact blow to the neck and thyroid which caused a severe haemorrhage. He was already dead when the car in which his body was placed was set alight.

5 As mentioned , the deceased man is alleged to have been murdered by John Butorac. You had known Butorac for a long time. You too knew the deceased. He and Butorac were also known to each other, their association commencing two aand a half years earlier . Butorac ran an automotive business known as Customs and Classics in Tullamarine and restored motor vehicles and had been asked to do some work on a Ford Mustang that the deceased had owned.

6 In the days leading up to the death of Mr Balikel, he had spent time with Butorac. The last place they were together was Butorac's factory in Tullamarine in the early afternoon of 30 October 2014. The prosecution allege that Butorac murdered Balikel at those premises by striking the deceased in the head and the front of his neck with a crow bar.

7 You were not present when the killing occurred and what you know about the death of the deceased was limited to that conveyed to you by Butorac.

8 According to your statement made to police on 3 February 2015, you visited Butorac in the late afternoon of 30 October 2014. By then he had killed the deceased.

9 You and Butorac had coffee, at which time you noticed he was stressed and agitated. Later you left him in Melton and went home.

10 At about 9:30pm, he, Butorac, arrived at your home and, after a time, asked you to assist him to get rid of a body. He then told you he had killed the deceased. You initially refused to help him, and I am sure you were repelled by what you were being told and asked to do. However, eventually, you agreed to assist. Later asked why you agreed to do what you did, you told police it was because you were a 'fucking idiot'.

11 You, having agreed to help, the two of you went to his factory and, upon your arrival, assisted him to place the body of the deceased into the Peugeot. As I understand, it was during this manoeuvre that Butorac told you that he had struck the deceased with a crowbar. You said you asked why he had done it and he said something about being threatened by the deceased and money being demanded.

12 With Butorac and you now driving your vehicle you then travelled to the location where the vehicle was destroyed by fire. You have identified various relevant locations on maps attached to your police statement. With the help of accelerant the vehicle containing the deceased in the boot was set alight and the two of you left in your vehicle and returned to the factory.

13 During the next stage of your travels Butorac disposed of clothing, you having identified for police where that occurred. Clothing was located and tested for DNA. The results of that analysis appear to support your description. You then returned home with Butorac and he subsequently left your place in his vehicle.

14 Later that day you provided a statement to police which was false and which asserted that Butorac was with you at your home between 9:42pm and 1:00am the previous evening. As I have indicated, it was on 30 January 2015 you revealed the truth to investigating police.

15 You initially gave police the account of events you and Butorac had agreed to disclose to them designed to protect both of you but, during a break in the interview, you spoke to your sister Maria and she urged you to tell the police the truth, and you then did so.

16 Notwithstanding that Butorac had been a close friend and confidant, your willingness to be involved in this attempt to conceal his crime is to be condemned. It is of course a very serious offence and your decision to relent and assist in the way that you did was, at a minimum, a very foolish step on your part.

17 Whilst your assistance to Butorac lasted for some time the initial decision you made to assist can be properly described as spontaneous. You had no involvement of any kind in the events leading up to his request of you.

18 You are now aged 46 years. You are of Croatian background and the third of four children born to your parents, who came to Australia in the 1960s. You were educated in the western suburbs of Melbourne and after Year 11 undertook technical and further education in mechanic engineering. Subsequently your main work has been as a carpenter and you have worked successfully in that trade.

19 You married in 1994 and that marriage ended in 2005. That event had a significant effect on you and you displayed the symptoms of anxiety and some degree of depression. There are two children of the marriage and, apparently, since the divorce, you have not had significant contact with them.

20 You now live at home with your elderly mother and younger sister, who have been a significant support to you.

21 On 6 July 2015, Mr Patrick Newton, a clinical and forensic psychologist, assessed you for the purpose of preparing a report. He concludes that you suffer from anxiety and depression which he suggests warrants a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. It seems to me that you have something of a disposition to such a condition, but it is largely a result of your involvement with Butorac and the consequences you now face as a result.

22 Importantly, he expresses the view that given your circumstances the prospects of you reoffending in any fashion are very low. Mr Newton's report seems to demonstrate that you have insight into your offending and the personal issues that lay behind it. You apparently regard yourself at a crucial stage of your life. I urge you to make the most of the opportunity that is now to be afforded to you.

23 Your criminal record begins in 1989 with a number of offences including theft and drug offences in respect of which you were fined. The other matters were in 2001 and 2005 and were traffic matters. Both involved you having driven while suspended and a wholly suspended sentence was imposed on each occasion.

24 On the other hand I have been provided with a number of written references which attest to your good character. You and your family have been prominent in the Croatian community.

25 Mr Misic, from the Australian Croatian Association, has known you for 30 years and attests to your reliability, trustworthiness and hard work. Likewise, Mr Samardzic, from the Melbourne Knights Football Club, has known you for a similar time and attests to your involvement with the Croatian community. Mr Vukusic provided a written reference and gave evidence before me. He has known you for 40 years and during that time employed you for some 12 years. You were, he told me, helpful and conscientious. He agreed that you should be more careful in who you help and what you help them with. Finally, Mr Juric also provided a written reference along similar lines All of these people emphasise that your conduct is completely at odds with the person they know. Clearly to have become involved in this very serious crime is something which was contrary to your instinct and character.

Plea of guilty, Cooperation and Undertaking to give evidence

26 You pleaded guilty at an appropriately early stage.

27 During the course of the plea before me on you you gave evidence. You were shown the statement you made to the police about the death of Mr Balikel and the role that Butorac played in that tragic event. You also described your own role in assisting him to dispose of Balikel's body. You swore that the statement is true and you undertook to give evidence at the committal proceedings for Butorac on 25 September 2015, and at any future trial of him as required. In giving that evidence you said you were doing so because it is the right thing to do. I accept that is your primary motivation. Given your long association with Butorac and his link with the Croatian community that would not have been an easy decision.

28 I also accept that your plea of guilty and willingness to give that evidence is a sign of your remorse and regret for what occurred and your way of trying to atone for what occurred.

29 The cooperation you have offered is extensive and detailed, Mr O'Connell submitted, and coincides and supports other evidence to be relied upon in the trial against Butorac. Inevitably there will be some risk to you and your family by taking that step.

30 Therefore, pursuant to s 5(2AB) of the Sentencing Act 1991, I declare that I am imposing a less severe sentence than otherwise would have been imposed because of the undertaking you have given to assist after you have been sentenced, and I direct that the undertaking you gave to give such assistance be noted in the records of the Court.

31 As I am sure you understand, that means that if you do not comply with the undertaking you have given to give evidence when called upon, you will be able to be brought back to this Court with the potential consequence that a different and harsher sentence will be imposed on you.

32 For the several reasons referred to in the report of clinical psychologist Patrick Newton I regard your future prospects as being good. You have found this case and the resulting prosecution you have had to face difficult and upsetting. You are already specifically deterred from committing any further criminal conduct. Your misplaced sense of loyalty to Butorac is the substantial explanation for your conduct in this case.

33 In addition, you have vocational skills which means that a stable life can follow the conclusion of this matter.

34 Ordinarily, general deterrence would require the imposition of an immediate custodial sentence in a case such as this, where the clear object of the conduct was to reduce or eliminate the prospect of a person who has committed the offence of murder being successfully prosecuted.

35 However in the circumstances that prevail in this case, with particular reference to your plea of guilty, cooperation and obvious remorse, and also in view of the concurrence of the prosecutor on instructions, I have reached the conclusion that it would be appropriate to impose a community corrections order on you albeit that the offence to which you have pleaded guilty is very serious. A community corrections order in this case would satisfy the requirements of just punishment.

36 I have been provided with an Assessment Outcome Report from the Department of Justice dated 4 August 2015, which has assessed you as suitable for a Community Corrections Order. I propose that order last for a period of 12 months and, in addition to the mandatory terms required by s 45 of the Sentencing Act 1991, include the following conditions:

Pursuant to section 48C, you be required to perform 126 hours of unpaid community work; and
Pursuant to section 48E, a supervision condition be included. The supervision condition would require you to attend Community Correctional Services at 10 Foundry Road, Sunshine, from time to time as directed. You are required to report to that office within two working days of this order being imposed.

37 I am also required to explain to you the effect of you not complying with this order. If you breach a condition of the order you may be re-sentenced for the original offence, a sentence which will likely be considerably harsher than the sentence I am now imposing, supplemented with an additional penalty of three months imprisonment imposed as a direct consequence of the breach.

38 So on the charge of assisting an offender to which you have pleaded guilty, subject to you agreeing to this order, you will be placed on a Community Corrections Order in the terms that I have outlined to you.

39 Pursuant to s 6AAA of the Sentencing Act 1991, I am required to declare the sentence that I would have imposed on you had you not pleaded guilty to this offence. Albeit that this is a thoroughly artificial exercise because none of the other mitigatory considerations would be available without a plea of guilty, I indicate that had you not pleaded guilty the sentence I would have imposed would have been a period of 3 years imprisonment. I would have fixed a period of two years before you would have become eligible to apply for release on parole.

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