The Queen v Delich [2013] VSC 309

Supreme Court of Victoria|2013-06-14|Before: LASRY J

CRIMINAL LAW - Sentence - Murder - Guilty plea - Premeditated offending - Voluntary surrender to police - Guilty plea at earliest opportunity - Absence of remorse - Sentence of 20 years' imprisonment with non-parole period of 16 years.

1 Denis Delich, on 29 January 2013 you pleaded guilty before Coghlan J to murdering Almasa Locic. That murder took place on 1 November 2011 near premises in Bertrand Avenue, Mulgrave. The maximum penalty for murder is life imprisonment.

**2 The deceased was your wife and had been for 23 years before a separation in 1997 and a divorce in 2002. The marriage produced two sons, Edin, known as Eddie, and Dean. The breakdown of your marriage provides the factual background and motivation for what occurred on 1 November 2011.

3 Having married in 1975, the relevant events began in 1984 when you and your wife purchased the property at 32 Bertrand Avenue, Mulgrave, the premises near where this killing occurred. You and the deceased lived in those premises and your children grew up there. The separation between you and your wife in 1996 is said to have occurred against suggestions of your gambling and also the prospect of her having had an extra-marital relationship with a family friend. It was in 1997 that the separation between you became permanent, and as I earlier noted you were divorced in 2002.

4 Following the divorce you retained the property at 32 Bertrand Avenue, Mulgrave having paid out to the deceased her share in the property. She moved to a unit in Noble Park North, but the divorce and her movement to those premises did not end her contact with you. Ultimately, you wanted her to move back into the family home because the home was too big for you. She sold her unit to your son Dean and purchased the family home back from you. She and your other son, Eddie, moved into the house. You, in turn, moved to Eddie's home, a property in Endeavour Hills.

5 In 2009, there was conflict between you and your sons over a demand you made of them for money expended on raising them during their lives. That conflict became violent to some degree, and the tension and difficulties continued. Later in February 2009, you wrote a letter to your son Eddie demanding the transfer of the title to the house he owned in Endeavour Hills, as well as a motor car to you. There was then a conversation in which you told him to meet you in person at a park. You then rang the deceased and told her to send both of her sons outside and that she should not come out because you did not want her to see what was going to happen. As a result, the police became involved, and not long after that you were arrested for sitting in your car outside the deceased's home in possession of a loaded handgun.

6 As a result, on 1 May 2009, at the Magistrates' Court at Dandenong, you were placed on a twelve-month community based order in relation to the offences of making a threat to kill the deceased and your sons Eddie and Dean Delich. You were also convicted of possessing an unregistered general category handgun. Mr Desmond informed me during his plea on your behalf that you were remanded in custody for a period of nine weeks before these matters were finalised.

7 Following that incident, an intervention order was obtained by the police for the purpose of protecting the deceased and her two sons from you. The order prohibited contact between yourself and the rest of your family for a period of twelve months. You abided by that order and there was no contact.

8 In 2010, you continued to monitor the activities of your former wife to the extent that in October 2010 a further intervention order was necessary and obtained from the court by her. Indeed, that was an order to which you consented. The order was to last until 1 November 2011, but in mid-September 2011 you followed your wife and made threats to her and her family. As a result of those activities, your former wife moved out of the home and stayed with her sons and her sister in Dandenong North. It would also appear, from what you told police, that you had purchased the firearm you used to kill your wife. You told police in your record of interview that you did that on New Year's Eve 2010 in Adelaide.

9 On 26 October 2011, the intervention order which had been obtained by her against you at the Dandenong Magistrates' Court was further extended. The extension obtained was until 21 November 2011.

10 On 1 November 2011, your ex-wife left the premises at 32 Bertrand Avenue, Mulgrave and went to her sister's place in Dandenong. Later that morning, you drove your vehicle to the Mulgrave area, parking outside premises at 29 Bertrand Avenue, about 50 metres away from the home of your former wife. You had with you the loaded semi-automatic handgun.

11 Knowing that the property at 34 Bertrand Avenue was vacant, you went to the rear of those premises and climbed over the fence so that you were positioned at the rear of your ex-wife's premises at 32 Bertrand Avenue. You hid behind the garage and waited for her to return home, and at about midday she did so. She drove into the driveway, and by the use of a remote control opened the roller door to the garage. You confronted her and she screamed. You then chased your ex-wife into Bertrand Avenue and outside the property at 30 Bertrand Avenue you shot her in the back as she fled from you. She fell face first onto the footpath and you then stood over her at close range and shot her again with the clear intention of ensuring she was dead. In the course of doing that the gun in your possession jammed, and two unspent cartridges were expended from it. Almasa Locic died at the scene.

12 The pathologist who later examined your ex-wife's body identified two gunshot wounds. One gunshot wound caused a non-life threatening injury but the second gunshot wound through her left abdominal wall and its medical consequences were the cause of death.

13 At 12.20pm on that day, you went to the Dandenong Police Station. You went inside and informed police of what you had done. You told police, "I did it. I've come to hand myself in". You had left the gun you used in the vehicle which you had driven to the police station and parked out the front.

14 At 1.05pm, you were interviewed at the Dandenong Police Station by Detective Senior Constable Ellis and Detective Senior Constable Owens. In explaining what had happened that day, you told police that you went to speak to your wife and that you did not have an intention to do anything but that she screamed and you panicked and the shooting occurred. However, that initial explanation soon changed. You described how you had acquired the gun you used in Adelaide at New Year's Eve 2010. You also said you had been thinking about the possibility of such an incident for about six months.

15 From what you said, it seemed that you had also contemplated the possibility of killing your sons but you had determined that you could not bring yourself to do such a thing. In describing your state of mind, you told the police that you were just going to go to her premises to see if something could be done, presumably about the financial circumstances you felt you were facing, and that if not, then you had nothing to lose. You said that if you had decided that if worst came to worst you would kill your wife because you had no option.

16 The prosecution described the motive for you having a desire to kill your wife as straightforward revenge. They refer to your answers in the record of interview in which you indicate that she had obtained everything from you, and as you put it "ripped me off". You accepted that you wanted to make sure she was dead, and you said that in your opinion she had destroyed your life.

17 No issue was taken with the factual circumstances outlined by the prosecutor in relation to the killing of the deceased.**

**18 I have been provided with victim impact statements from Dean, your son, Edin Delich, your other son, Alya Delich, the daughter-in-law of the deceased and the wife of Dean Delich, and Katya Degregorio, wife of Edin Delich.

19 Both of your sons were witnesses to the death of their mother, having arrived on the scene shortly after you shot her. Both of them recalled the horror of seeing her lying in the middle of a driveway near to death or dead. These are images which will be with these people for the rest of their lives, and their memory of this incident will be no doubt of a brutal, traumatic and futile act on your part to cause the death of the deceased. The two daughters-in-law of the deceased also described the trauma of the incident and starkly described the way in which the trauma has affected all of them in the weeks and months after the murder.

20 I have taken these victim impact statements into account in fixing the sentence that I will impose on you.**

21 Your act in killing your ex-wife you as you did on 1 November 2011 was planned, premeditated and callous. It is not explained by any conduct of hers and was thoroughly unprovoked. It demonstrated a complete disregard not only for your wife but for those who witnessed what you did. As you yourself told the police, you had thought about doing such a thing for a quite significant period of time. You had planned the killing. You had realised that upon seeing you your wife would immediately be extremely apprehensive and run away if she could. You intended to put her in a position where there could be no escape from you, and indeed that is what occurred. I repeat, this was a callous, vicious and public execution of your wife by you.

**22 You are now 61 years of age. You were born in Bosnia-Herzegovina. You had two younger brothers and two younger sisters. During your childhood, your family was "very poor" and you left the family home at the age of 17 going to Austria in search of improvement. You were in Austria for a year before relocating to Australia in 1969, having cousins who lived in Sydney. In Australia, you lived in Sydney and then in Queensland before finally relocating to Melbourne where you met your wife in 1973, marrying in 1975. Your mother and sisters are in Australia and still supporting you.

23 As I understand it, you have only primary school education, which you obtained in Bosnia-Herzegovina. You have never had a secondary education. Your work in Australia has been seasonal, including on tobacco farms and in factories. In the course of one such job, you suffered head and back injuries and received some $32,000 in compensation. At the time of these offences, as I understand it, you were in receipt of unemployment benefits.

24 There is no history on your part of alcohol or drug abuse.

25 You do appear to have some family support. I have been informed that a number of your family members and friends attended the Court for the hearing of the plea on your behalf. They apparently included your mother, two sisters, cousins and friends.**

**26 From 1974 onwards you have accumulated what appear to be relatively minor offences concerning driving and also theft. In the early 1990s, you were dealt with for cultivating cannabis and in 2007 you were dealt with for unlawful assault. All of the matters that I have referred to were dealt with in the Magistrates' Court.

27 You acknowledge that on 1 May 2009 you were convicted of making a threat to kill and possessing an unregistered general category handgun with which you were convicted and sentenced to a community-based order for twelve months. I have already referred to these matters and they form part of the context in which the murder to which you have pleaded guilty actually occurred.**

**28 As I earlier stated, you pleaded guilty to the count of murder on 29 January 2013 in this Court. Bearing in mind that after having killed your wife you drove directly to the Dandenong Police Station and confessed to your participation in the offence, it could not be in any sense argued that you did not plead guilty at the earliest possible opportunity. Your plea of guilty is clearly a demonstration on your part of your willingness to accept responsibility for what you have done. You accepted that responsibility immediately. A trial has been avoided and importantly, your sons and their families have been spared the trauma of what that would have involved. The value of that is significant and will be reflected in the reduction of your sentence that the law provides I must specify.

29 Your counsel argued on your behalf that your conduct immediately after the killing and your plea of guilty ought to be seen as evidence of genuine remorse for the offending. I do not accept that at all. In my opinion it could not be said your willingness to accept that responsibility represents any form of remorse on your part. Remorse is of course a deep or painful regret for your wrongdoing - you do not appear to have any such feelings. Indeed, in the record of interview when you were asked whether you regretted what you had done, you said you did not. You also told police that you did not believe that what you did was wrong, and that although you might feel sorry for an animal, you would not feel sorry for your wife.

30 On your behalf a brief reference was provided by Muhammed Keskic. In the written document he said he had known you for many years and argument and aggression were not characteristics you showed to him. He asserts that you are truly sorry for what has happened. I am sure Mr Keskic wrote with the best of intentions but I cannot accept that you are sorry, other than perhaps for your own circumstances.**

**31 For some years you have been seeking assistance for depression and sleep disturbance. In October 2007, Dr Fernando, a consultant psychiatrist, diagnosed dysthymia and indicated that his diagnosis was made against the background of the consequences of your divorce in 2006. At that stage you were taking medication for depression and also to assist with your sleep.

32 At the end of 2009, Dr Fernando noted that you were preoccupied with your losses in life, particularly at the hands of your wife. In 2010, you complained to Dr Fernando about the possibility of having been poisoned, displaying a degree of paranoia. Dr Fernando diagnosed you with a mixed anxiety and depressive disorder with psychotic features at times. You continued to take medication. On 12 September 2011, only weeks before you committed the offence of murder, you were described by Dr Fernando as having chronic depression and he described your presentation as distressed.

33 In November 2012, you were examined by Dr Lester Walton, who is a consultant psychiatrist who concluded that you had a chronic waxing and waning depressive disorder. He did not think it was of psychotic proportions. Dr Walton was giving advice as to whether or not you might have been able to raise mental impairment as a defence to the charge of murder. His conclusions did not support such a defence. In April of this year, after the plea in this matter had commenced, a further report was obtained from Dr Walton who described you as being in the grips of a chronic depressive disorder without any evidence of psychosis. He considered that your mood disorder had never been of psychotic proportions. He did not consider that you had a diagnosable personality disorder and he appeared to accept that you had a significant condition of depression.

34 In March of 2013, you were examined by a forensic psychologist, Aaron Cunningham who also diagnosed anxiety and depression. He referred to what he described as your "fixated" belief that your wife and children had conspired to ruin you financially and also that your wife had been unfaithful to you. It is this fixation that has resulted in this terrible tragedy.

35 On your behalf your counsel urged me to accept, and I do, that as a result of your depressive disorder you have already found and will continue to find being in custody much more difficult than if you had not suffered from that condition. In the language of the relevant principles, I take into account that the sentence I impose will weigh more heavily on you than it would on a person in normal mental health.[1] Given your lack of remorse, I do not consider that taking into account the need to specifically deter you from committing such offences should be significantly moderated as a sentencing consideration. You feel significant hostility toward your sons and the nature and severity of the symptoms of your condition and its effect on your mental capacity is not such as to reduce the need for specific deterrence.**

**36 Anybody understanding what you did on 1 November 2011 and your justification for doing it would be shocked. That said, any person contemplating the kind of fatal, summary justice that you meted out to your wife must understand that those actions will be met with very significant punishment and the sentence I impose on you must reflect that. The law refers to that as general deterrence. You must also be deterred from such violence being repeated.

37 You are not a young man and I have considered your age and its effect on the sentence. Whilst your age is a relevant sentencing consideration, that will not justify the imposition of an unacceptably inappropriate sentence.

38 The sentence I will shortly impose on you has the genuine potential to mean that that you will end your life in custody. Be that as it may, anything less would not, in my opinion, would be adequate to deal with your extremely serious criminal conduct.

39 In my opinion, the appropriate sentence for me to impose on you is to sentence you to a period of imprisonment of 20 years. I fix a period of 16 years that you must serve before you are eligible to make an application for release on parole.

40 Your pre-sentence detention is a period of 591 days and shall be reckoned as time already served. I direct that be entered in the records of the Court.

41 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty the sentence I would have imposed on you would have been a sentence of 24 years' imprisonment with a minimum term of 19 years to be served before you would be eligible for release on parole.

42 I have already made the orders for forfeiture and the forensic sample pursuant to s 151 of the Firearms Act 1996 and s 464ZFB of the Crimes Act 1958 respectively, which the Crown had applied for and which were not opposed on your behalf.**

[1] See R v Verdins; R v Buckley; R v Vo [ 2007] VSCA 102.

At a glance

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Before

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Judgment (45 paragraphs)

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