R v Vujica [2023] NSWSC 1532

Supreme Court New South Wales

Medium Neutral Citation: R v Vujica [2023] NSWSC 1532 Hearing dates: 06 December 2023 Date of orders: 06 December 2023 Decision date: 06 December 2023 Jurisdiction: Common Law Before: Sweeney J Decision: 1. Convicted. 2. Sentenced to a non-parole period of 14 years imprisonment to date from 15 January 2022 with an additional term of 5 years imprisonment. 3. The head sentence is one of 19 years imprisonment. 4. The non-parole period will expire on 14 January 2036. 5. Offender warned about the application of the Crimes (High Risk Offenders) Act 2006 (NSW). Catchwords: SENTENCING — Murder — Trial by judge alone Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Millwood [2012] NSWCCA 2 Texts Cited: Nil Category: Principal judgment Parties: Rex (Crown) Danny Vujica (offender) Representation: Counsel: P Hogan (Crown) I McLachlan (offender)

Solicitors: Solicitor for Public Prosecutions (NSW)(Crown) Simon Joyner Lawyers (Accused) File Number(s): 2022/012694 Publication restriction: Nil

JUDGMENT 1. On 20 October 2023 after a trial by judge alone, I found Danny Vujica guilty of the murder of Michael Haynes on 15 January 2022. He is now to be sentenced for that offence. The maximum penalty for the offence of murder is life imprisonment, and a standard non-parole period of 20 years is prescribed for an offence in the middle of the range of seriousness. Both of those legislative guideposts must be borne in mind. 2. I made findings of fact in my verdict judgment. What follows is a summary of those facts necessary for the purposes of sentencing Mr Vujica. 3. Early in the morning of Saturday 15 January 2022, Michael Haynes was on his way from a friend's place to the home of his former partner and his children in Popondetta Road, Blackett. 4. Mr Vujica was also out. He had not slept well, having been troubled by traumatic dreams and memories of childhood abuse. He left his mother's home early to try to obtain some cannabis to help him sleep, relax and prevent bad dreams and memories. He tried unsuccessfully to obtain cannabis from a friend. 5. A little before 5.30am, Mr Haynes and Mr Vujica encountered each other at a 7-11 service station on Popondetta Road at Emerton. They had not met before. Mr Vujica told Mr Haynes he was trying to obtain some cannabis. Mr Haynes made some phone calls and sent some text messages and told Mr Vujica that someone was coming with cannabis. 6. They both went to a nearby KFC outlet. A third person arrived on a motorbike. I was satisfied that that man took $50 from Mr Vujica, did not give him any cannabis, and rode off on his motorbike with Mr Vujica's $50. Mr Vujica was aggrieved about his $50 having been taken. 7. Mr Haynes went to the McDonald's next to the KFC and ordered some food. Mr Vujica went into McDonald's and spoke with Mr Haynes. Their encounter was recorded on CCTV, although without sound. It lasted for about four minutes. During that conversation, Mr Haynes showed Mr Vujica his phone, I was and am satisfied in response to Mr Vujica demanding to know if Mr Haynes had been involved in the man on the motorbike having taken Mr Vujica's $50. I infer from his showing Mr Vujica his phone that Mr Haynes was not a party to the money being taken by the man on the motorbike. 8. Mr Vujica sent a text message to his friend Bryce Gregory, complaining that he had had a knife pulled on him. I was unable to find that Mr Vujica's $50 was taken from him at knifepoint. 9. After the conversation at McDonald's in which Mr Haynes declined to help Mr Vujica contact the man on the motorbike to ask him to come back and return the $50, Mr Haynes collected his food, and Mr Vujica called his friend Bryce Gregory and asked him to come and collect him. He complained about having been robbed of $50, and said a man he had met at the service station, a reference to Mr Haynes, had set him up to lose $50. 10. As Mr Haynes walked out of the McDonald's with some food, Mr Vujica was standing in the car park talking on the phone to Mr Gregory. Mr Gregory began driving towards Mr Vujica to collect him as requested. Their phone conversation, from the time Mr Vujica called Mr Gregory when he was at McDonald's until just before Mr Gregory arrived at Mr Vujica's location on Popondetta Road, lasted about 13 minutes. For most of that time, Mr Vujica was following Mr Haynes along Popondetta Road. 11. As Mr Haynes left the McDonald's car park, Mr Vujica turned his bike around and followed Mr Haynes, at a little distance. They both crossed the road and began walking along Popondetta Road. Some, though not all, of their journey along Popondetta Road was recorded on CCTV cameras, a small portion with sound. 12. At some point, as Mr Vujica followed Mr Haynes along Popondetta Road, Mr Haynes became aware of that. He told Mr Vujica, in emphatic terms, which were sound-recorded, to leave him alone and not follow him to his children's house. When Mr Haynes continued his journey towards his children's home, Mr Vujica followed him on his push bike on the other side of Popondetta Road. 13. I was and remain satisfied beyond reasonable doubt that Mr Vujica was intent on recovering his $50, and that was why he followed Mr Haynes, because the man on the motorbike who had taken his $50 had gone, he could not contact him to have him return and return his $50, he was aggrieved that Mr Haynes would not help him do this, he held Mr Haynes responsible in some way as the only person present, and he was intent on pursuing Mr Haynes to recover his $50. 14. Mr Gregory arrived in his car and got out of his car. Mr Haynes approached Bryce Gregory and Mr Vujica holding a brick. He told Mr Gregory to get back in his car. Mr Gregory asked him what he was going to do with the brick. I am satisfied Mr Haynes picked up the brick when Mr Gregory arrived to defend himself from two people. 15. Mr Vujica threw a haymaker punch with his right hand towards Mr Haynes' head. He was holding in his hand a small knife blade which was attached to his key ring. With the knife he stabbed Mr Haynes in the neck deliberately and intentionally, with the intention of causing him grievous bodily harm. He did not act in self-defence. After being stabbed, Mr Haynes fell to the road. While Mr Haynes was lying on the road, Mr Vujica demanded his $50. Mr Haynes told him he did not have his $50. 16. Mr Vujica got into Bryce Gregory's car and encouraged Bryce Gregory to drive away at speed, which Mr Gregory did. After dropping his friend and passenger home, Mr Gregory took Mr Vujica to his home, where Mr Vujica burned the clothes he was wearing on his upper body, and left his pushbike with Mr Gregory for him to dispose of. 17. Mr Gregory drove Mr Vujica to a point where his mother collected him and drove him to her house. Later that day, Mr Vujica was arrested in a car with his brother, apparently headed for Queensland where Mr Vujica's father lived. 18. Meanwhile, people came to assist Mr Haynes. Ambulance officers arrived and took Mr Haynes to hospital. On the way, he suffered a cardiac arrest from the loss of blood from the stab wound inflicted by Mr Vujica to the left side of his neck. Mr Haynes was pronounced deceased on arrival at the hospital. 19. I am required by law to assess the objective seriousness of this murder by reference to its circumstances, as a factor in fixing an appropriate sentence. This may seem strange to Mr Haynes' family because of the devastating effects of this crime on them. However, the law does distinguish the circumstances of murders, and I am required to assess the circumstances of this one. 20. In assessing the objective seriousness of the offence, I take into account the following factors. It was not planned or premeditated. Mr Vujica pursued Mr Haynes, intent on recovering his $50, but not planning to kill him. Mr Haynes was a stranger to Mr Vujica, randomly encountered. Mr Vujica killed Mr Haynes with one stab wound to his neck. He used a knife, a small knife which he carried on his key ring and which he said in evidence he used at work. There was no evidence to contradict the latter. 21. His intention was to cause grievous bodily harm. He was angry with Mr Haynes, intent on recovering the $50 which had been taken from him by the man on the motorbike, angry that Mr Haynes would not help him contact that man and ask him to come back and return his money, and intent on recovering his $50 from Mr Haynes, who had been present when the $50 was taken and was the only person remaining. 22. Mr Vujica's anger in holding Mr Haynes responsible for the loss of his $50 was illogical, as Mr Haynes had not taken his money. It was also self-absorbed. Even as Mr Haynes lay on the roadway injured, Mr Vujica was still demanding his money, demonstrating his self-absorption. 23. His evidence in the trial, even when he knew that he killed Mr Haynes, that "the whole thing was not worth it, I just wanted to get on and go home, I was having my day off" demonstrated his self-centred view of the events. That he left the scene in Mr Gregory's car, leaving Mr Haynes lying injured on the road, showed his self-absorption and lack of concern for Mr Haynes. 24. He killed a stranger, a man on the way to see his children, over $50. Taking those factors into account, I assess this offence as just below the midrange of seriousness. 25. Michael Haynes' father, Michael Haynes, read a victim impact statement on behalf of himself, as a father who has lost a child, and on behalf of Mr Haynes' children who have lost their father. I thank him for his courage and dignity in once again representing his family in a difficult task to tell the court, the offender and the community about the impact on his family of the loss of Michael Haynes. 26. Their devastating loss, the absence of Mr Haynes for the rest of their lives, is a tragic and senseless blow from which they will never recover. I acknowledge their pain, loss and the harm done to them by the offender taking the life of Mr Haynes, and I take it into account. 27. The Crown submitted that the offence was aggravated because the emotional harm caused by it was substantial. Counsel for Mr Vujica took issue with this, submitting that such harm is inherent in the offence of murder. 28. I accept that the emotional harm suffered by Mr Haynes' family is the harm which family members experience when a family member is murdered. I do not intend by those legal terms to diminish the emotional harm they have suffered. Of course it is substantial, but I do not treat it as an aggravating factor within the meaning of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 29. Mr Vujica is 27 years old and was 25 at the time of the offence. He has a record of prior offences of violence. There was an assault of his mother in 2014, for which he was placed on a bond, and an assault of a law officer in 2018, for which he was imprisoned for two months. That appears to have occurred when he was in custody, and appears to relate to a corrections officer. 30. In 2014, when he was 18 years old, he assaulted two men, strangers to him, causing one grievous bodily harm, and one actual bodily harm. He approached the two men on the street, according to the agreed facts for his sentence of those offences, and spoke with them for a while. One man he kneed and kicked, hit to the head and face multiple times with a milk crate, punched to the face, forced him to the ground, kneed him to the face and stomped on his torso. 31. He then kicked a second man to the face, causing a cut to his chin, which was the actual bodily harm offence. He then went back to the first man and stomped on his face six times, forcing the back of the man's head on to the concrete footpath. He then kicked the man to the side of his head, then stomped on his face four more times. He then walked away, leaving the man on the ground. 32. When ambulance officers arrived, the victim was unconscious. He later developed bruises on his face in a pattern consistent with the sole of Mr Vujica's shoe. He had a fractured right eye socket which required surgery, a fractured cheekbone and a fractured nose. He was considered to have a significant brain injury, the effects of which were still apparent some months later and which were considered to have resolved a year later. 33. This savage attack on a stranger, after which Mr Vujica walked away, leaving the man lying on the street, showed that this offence for sentence was not an isolated, aberrant or out of character act of violence. 34. Mr Vujica's offence of murder is not made more serious by his past offences of violence, and his sentence for the offence of murder is not to be increased for his past offences of violence. His record of violence is not lengthy but it means he is not entitled to be treated leniently, as someone without that prior record may be. 35. Mr Vujica was sentenced to five years and three months imprisonment for the offence in which he inflicted grievous bodily harm, and two years and four months' imprisonment partly overlapping with the first sentence, for the assault occasioning actual bodily harm. He was released to parole in May 2020, but in April 2021 his parole was revoked because of driving offences, and he served a balance of parole of one month and four days. He was subject to conditional release orders imposed in April 2021 for those driving offences when he committed this offence for sentence. 36. Again, the breach of conditional liberty by the murder offence does not make the murder offence more serious but the breach of those orders is a matter to be taken into account in sentencing Mr Vujica for the murder. 37. In 2016, when he was to be sentenced for the assaults causing grievous bodily harm and actual bodily harm, Mr Vujica told a psychiatrist he had been using methamphetamine at the time of the offence and since the age of 16. He reported a history of paranoia and psychotic symptoms. 38. Dr Olav Nielssen, psychiatrist, assessed Mr Vujica and prepared a report for this sentence hearing. He thoroughly reviewed Mr Vujica's prior psychiatric reports, hospital admissions and treatments. Mr Vujica's history included suicide attempts in his teens, including by attempting to hang himself. 39. Dr Nielssen concluded that despite Mr Vujica having a history of reporting psychotic symptoms and brain injury, he found no obvious sign of neurological disorder, underlying psychotic illness, impaired concentration or retrieval of information when he interviewed him. He diagnosed a cannabis use disorder, in remission, which he thought possibly contributed to transient psychotic symptoms. He diagnosed an anxiety disorder, a chronic form of post-traumatic stress disorder, arising from sexual abuse by his stepfather over five years until the age of 13. He said there were no clinical features of persistent psychotic illness during his interview with Mr Vujica, and there was little clinical evidence of features of acquired brain injury. 40. He said "Mr Vujica has a complex psychiatric disorder arising from his experience during his upbringing that is associated with emotional lability and heightened perception of threat." He said "Mr Vujica's underlying psychological condition is likely to have increased his subjective perception of threat from Mr Haynes at the time of his offence." 41. Counsel for Mr Vujica submitted that his mental health issues reduced his moral culpability for his offence. The Crown submitted that the condition identified by Dr Nielssen is capable of reducing Mr Vujica's moral culpability only to a limited degree, if at all. 42. When a person's mental health contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced. I accept that the condition diagnosed by Dr Nielssen distinguishes Mr Vujica from people who do not have that condition, and in Dr Nielssen's opinion, which I accept, the condition affected his behaviour in the offence. It was, however, not the only factor operating on Mr Vujica's decision-making at the time he stabbed Mr Haynes. His anger at having lost his $50 and his focus on recovering it from Mr Haynes or blaming Mr Haynes for his loss were also factors in his offending. In those circumstances, his diagnosed psychiatric disorder reduces his moral culpability for his offence to a modest degree. 43. Counsel for Mr Vujica also submitted that his mental condition meant that he is not an appropriate vehicle for general deterrence. Accepting his condition was a factor in his offence, the need for general deterrence to be reflected in Mr Vujica's sentence is reduced a little, but his motivation to recover his money means that general deterrence still retains importance in sentencing him. 44. Specific deterrence is important because of Mr Vujica's prior record of violent behaviour which has increased in seriousness. 45. Counsel for Mr Vujica also submitted that his moral culpability for his offence is further reduced by the circumstances of his upbringing, in accordance with the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 46. Mr Vujica told Dr Nielssen his parents separated when he was five or six, and he had limited contact with his father after that. In 2016, he told psychiatrist Dr Rafe Pulley, as did his mother, that he witnessed violence by his father against his mother, although Mr Vujica's mother also told Dr Pulley that Mr Vujica was taken by his father at about seven, and lived with his father for about a year and a half without seeing his mother. 47. Mr Vujica and Ms Padget, Mr Vujica's mother, both told Dr Pulley that Mr Vujica was bullied at school. In 2016, Mr Vujica told Dr Adam Martin, psychiatrist, that his father was violent to his mother, and left the family when he was aged eight. He said his mother suffered from depression. He told Dr Martin he was expelled from school for fighting. 48. Mr Vujica told Dr Nielssen he was sexually abused by his mother's boyfriend from around the age of eight until the age of 13. In 2016, he had given Dr Pulley a positive account of his relationship with his stepfather from the age of nine. Those accounts seemed inconsistent. It seemed from Mr Vujica's ages in both accounts he was talking about the same man. 49. I note he told Dr Nielssen he had not told his mother about his sexual abuse until he was 24, and I accept some abuse victims delay their disclosure. However, the positive account of his stepfather given to Dr Pulley seems inconsistent with his later complaint of abuse by that man. These inconsistencies are difficult to resolve. I have decided I will accept in Mr Vujica's favour that he suffered the sexual abuse which Dr Nielssen says underlies his anxiety/post-traumatic stress disorder. 50. Mr Vujica told Dr Nielssen that he ran away from home as a teenager, lived on the streets and with his grandmother, and did not complete high school. He reported that he began to self-harm from 13, and made several attempts to cut himself and hang himself. He said he began smoking cannabis around the age of 12, and had continued to use it to help him sleep. 51. He told Dr Nielssen he had a history of working. 52. A close reading of all the psychiatrist's reports suggest that Mr Vujica is not a consistent or reliable historian when telling doctors about his life. However, I accept he experienced the difficulties he described during his childhood and adolescence. I accept that those experiences had some impact on his "emotional resources to guide his behavioural decisions", to use Simpson J's (as her Honour then was) phrase in R v Millwood [2012] NSWCCA 2. 53. It is important to note what the High Court said in Bugmy. The High Court said: "An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced." 1. The evidence before me does not support a finding that that was Mr Vujica's situation. His emotionally disadvantaged childhood and adolescent experiences permit some degree of moderation of his moral culpability for this offence. However, his resort to violence as a response to a perceived frustration, against the background of his previous episode of serious violence against a stranger, increases the focus on the protection of the community. 2. Counsel submitted that Mr Vujica's mental condition will make his time in custody more onerous. I accept that is so, and take it into account. I note Mr Vujica told Dr Nielssen he was receiving antidepressant medication and medication for nightmares and post-traumatic stress disorder in custody. 3. Mr Vujica relied on an affidavit in which he recounted his custodial conditions. He said he has been frequently threatened in custody, because of his offence, and as a result, he has been placed in protective custody, where he is not able to work, and he has also not been able to undertake courses. He has also experienced restrictions due to Covid, including no visits, and reduced phone calls and medical treatment while in Covid related lockdowns, which he said have been frequent. 4. I accept that Mr Vujica being in protective custody and being subject to Covid lock-ins and other restrictions have made his experience of custody more onerous. I accept he is likely to remain in protective custody in the future, and so his conditions of custody will remain restrictive and more onerous than for people in the general prison population. I am required to take those past and future restrictive conditions of custody into account, and I do so to reduce his sentence, and correspondingly, the non-parole period. 5. Counsel for Mr Vujica submitted he has expressed remorse for the loss of the deceased's life. In his affidavit Mr Vujica said "I want to say I am very sorry to the deceased and his family for their loss". I accept that Mr Vujica is not the most articulate or sophisticated person in expressing himself, but having considered that, I am of the view it falls short of accepting responsibility for Mr Haynes' death. 6. Counsel submitted that Mr Vujica facilitated the administration of justice by cooperating in the efficient running of the trial, including admitting the inflicting of a stab wound as part of the agreed facts. I accept there were substantial agreed facts, including an admission as to the wound. Regrettably, the trial did not run as smoothly or quickly as might have been anticipated from those agreed facts. However, I will allow a small reduction of the sentence for the extent of Mr Vujica's cooperation in the trial process. 7. Dr Nielssen said Mr Vujica's prospects of rehabilitation depend on his access to courses and treatment in custody and the community. I accept his opinion. His prospects of rehabilitation must be guarded given his past history. 8. Counsel submitted I should find special circumstances to reduce the non parole period from the statutory ratio. Because of the length of the sentence which must be imposed, the parole period will be sufficient for Mr Vujica's reintegration into the community under supervision without any reduction of the non-parole period. 9. His sentence must be backdated to commence on the day he went into custody, 15 January 2022. 10. Counsel for Mr Vujica provided me with some sentence judgments which concerned murders committed in a range of different circumstances, with different intentions and different sentences imposed. I have considered them. 11. Before I sentence you, Mr Vujica, I must tell you that because of the offence you committed, at the end of your sentence the State may apply to this Court for orders that you be detained for a longer period or supervised in the community. Your lawyer will no doubt tell you more about that. 12. Having considered all those circumstances, I sentence you to a non-parole period of 14 years imprisonment, to date from 15 January 2022, with an additional term of five years imprisonment, making a total sentence of 19 years imprisonment. Your non-parole period will expire on 14 January 2036 and your sentence on 14 January 2041.