New South Wales Court of Criminal Appeal CITATION : R v Petrinovic [2001] NSWCCA 118 FILE NUMBER(S) : CCA 60771/99 HEARING DATE(S) : 2 April 2001 JUDGMENT DATE : 2 April 2001 PARTIES : Regina v Frank Petrinovic JUDGMENT OF : Stein JA at 23; Wood CJ at CL at 24; Studdert J at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70042/98 LOWER COURT JUDICIAL Greg James J OFFICER : COUNSEL : R.D. Cogswell SC/B. Baker (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown) LEGISLATION CITED : Crimes Act CASES CITED: Veen v The Queen (No. 2) (1988) 164 CLR 465 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60771/99 STEIN JA WOOD CJ at CL STUDDERT J Monday 2 April 2001 REGINA v FRANK PETRINOVIC JUDGMENT 1 STUDDERT J: On the 19 July 1999 the applicant Frank Peter Petrinovic pleaded guilty before Greg James J to the murder of Ian Hagarty at Lurnea. The Crown accepted that the plea was made on the basis of felony murder. The sentencing judge imposed a sentence of twenty-seven years penal servitude with a minimum term of twenty years to date from the 26 October 1997 when the applicant was arrested. The applicant, who appears in person, seeks leave to appeal against the sentence imposed. 2 The learned judge was provided with an agreed statement of facts referred to in his remarks upon sentence and which it is appropriate to record here again: "At about 5.30 pm on Sunday 26 October 1997, the prisoner, Frank Petrinovic, and a co-offender, Mandie Jancek, drove to the vicinity of the Liquorland Bottle Shop, located at the corner of Hill Road and Reilly Street, Lurnea. Both the prisoner and Jancek travelled there in vehicle MOW-739, a 1983 Holden Commodore sedan owned by the prisoner. The prisoner got out of the vehicle in Reilly Street. He put on a black balaclava and surgical gloves and armed himself with a loaded .32 calibre Argentina brand revolver. At the time he was also carrying a red plastic Grace Bros. shopping bag. The prisoner walked into the Liquorland Bottle Shop through the Reilly Street entrance. He walked towards the cash register and confronted the two employees on duty, Ian Hagarty and Troy Stephens. The prisoner ordered the two employees to the ground. Both complied. The prisoner stood over both employees and pointed the loaded revolver in their direction. The prisoner threw the Grace Bros. bag he was carrying behind the counter and said, 'fill up the bag'. Mr. Hagarty stood up and said, 'alright mate, I'll do it'. At that point a struggle started between the prisoner and Mr. Hagarty. During the struggle, two shots were discharged from the revolver by the prisoner. One of the bullets struck Mr. Hagarty in the right side of the neck. The bullet partially severed the left pulmonary artery of the left lung and travelled through the left posterior rib cage. In the opinion of the forensic pathologist who carried out the post-mortem examination on Mr. Hagarty, the death of Mr. Hagarty was caused by this gun shot wound. The second bullet did not enter Mr. Hagarty's body. It created a combined entry/exit wound. Mr. Hagarty continued to struggle with the prisoner after the shots were fired, eventually taking the revolver off the prisoner and staggering away. He later collapsed in the driveway area. Around this time, a number of the customers in the shop came to the aid of Mr. Hagarty. The prisoner was restrained by the customers in the driveway area. At that point the co-offender Jancek entered the shop on foot and attempted to pull away the customers who were restraining the prisoner. She was unsuccessful and she left the shop. Jancek then returned a short time later driving vehicle MOW-739. She drove the vehicle into the bottle shop, and drove at the prisoner and the customers, narrowly missing a number of people. This resulted in the prisoner breaking free of the customers for a short time. The prisoner attempted to get into the vehicle driven by Jancek, but was unable to do so. The prisoner then picked up a house brick and threatened the witnesses who were trying to detain him. The prisoner ran out onto the footpath of Reilly Street where he was again restrained by customers until police arrived. The prisoner was taken into custody by police, together with the co-offender Jancek who was restrained by witnesses in the motor vehicle she was driving. Mr. Hagarty was taken by ambulance to Liverpool Hospital, but soon after died of his injuries. Located at the scene was the loaded revolver used by the prisoner, the balaclava worn by the prisoner which was removed by one of the witnesses who tried to detain him, surgical gloves worn by the prisoner, and the Grace Bros. shopping bag. A search was made of the vehicle owned by the prisoner. Located in the vehicle was a radio scanner which was set on the police channel for the Liverpool area, and a box of surgical gloves. The prisoner was taken by police to Liverpool Police Station. Later he was taken to Liverpool Hospital where he was treated for injuries sustained by him at the scene. The prisoner was later returned to Liverpool Police Station where he was interviewed. The prisoner stated that he did not wish to comment about what had occurred." 3 The offence committed was one for which at the time of sentence the Crimes Act provided a maximum penalty of penal servitude for life (s 19 A). That same section provided for the passing of a lesser sentence than the statutory maximum where appropriate (s 19A(3)). 4 Objectively the crime which attracted the sentence imposed was a most grave crime. The facts recorded speak for themselves. 5 The applicant has an appalling record, as his Honour remarked. The applicant was born on 15 March 1960. In the period between 13 July 1979 and the date of his arrest on 27 October 1997 the applicant spent over fifteen years in custody. In June 1983 he was sentenced to terms of imprisonment for three armed robberies which were committed whilst on parole for offences of break enter and steal. In August 1984 he was sentenced for two further armed robberies which were committed after he had escaped from prison. In April 1989 he was sentenced for seven armed robberies on indictment and these offences were committed whilst the applicant was on parole in respect of earlier armed robberies. When sentenced in April 1989, in addition to the seven armed robberies on indictment a further five armed robberies were taken into account on a Form 1. On 15 May 1990 he was sentenced for a further armed robbery and this offence was also committed at the time of the applicant's escape from Kirkconnel Prison in 1984. 6 The applicant committed the subject offence only four and a half months after his release from custody following imprisonment for armed robberies and at a time when he was on parole. 7 The applicant was entitled to the benefit of his plea and the sentencing judge took this into account. He pleaded guilty at the first available opportunity when, after the Crown had indicated a willingness to accept the plea of guilty on the basis upon which it was entered. Of course the applicant was arrested at the scene of the crime and there were numerous witnesses available as to the commission of the crime. The evidence against the applicant was, as the sentencing judge remarked, "entirely overwhelming". Nevertheless there was the utilitarian value of the plea and the applicant was entitled to the benefit of it. 8 Evidence was given by the applicant at the time of being sentenced and he expressed his contrition for what he had done. The judge found this to be genuine and that was to be taken into account in his favour. 9 A subjective feature of this case was the applicant's addiction to heroin and indeed the evidence was that he abused heroin, some one and a half grams, on the day of the offence. The applicant had started using heroin when he was eighteen years of age and the armed robberies that he has committed, including the one in which the victim met his death, were committed to obtain money to feed his drug habit. 10 The applicant has, in addressing the Court today, explained that his criminality was for the purpose of addressing his drug habit and that he had no intention of killing the victim on the occasion of the commission of the crime that brings him before this Court today. 11 The applicant came before the Court of Criminal Appeal seeking leave to appeal against sentences imposed for the seven armed robberies for which he was sentenced in April 1989. In the Court of Criminal Appeal on the 18 September 1990 the applicant's appeal was dismissed but in the course of his judgment Hunt J, as he then was, made it clear at p 8 of his judgment that the Court would support judges who recognised armed robberies conducted to feed drug habits as warranting heavy sentences. His Honour gave emphasis to that proposition in the course of his judgment. 12 Those dicta in the Court of Criminal Appeal were expressed in the course of considering whether or not the fact that the applicant was addicted to heroin and was affected by it at the time of the crime ought to be regarded as a mitigating circumstance. The sentencing judge here concluded that the addiction ought not to be so regarded and in my opinion his Honour was entirely correct in coming to that conclusion. 13 The learned judge considered at that time other subjective features of this case which he observed were comprehensively addressed in the report of Dr Westmore. 14 The applicant, who was born in Yugoslavia, came to Australia when he was an infant. His parents separated when he was ten or eleven years of age. His father took him to Yugoslavia against his mother's wishes and when his father took him back to Australia he had lost contact with his mother although, at the time of the sentencing, he had recently resumed some contact with her. The applicant spent some time in institutions. His was an unfortunate childhood and, as Dr Westmore remarked, he had clearly led a life of extreme deprivation. However, Dr Westmore detected no psychosis. 15 In the opinion of the sentencing judge the prospects of rehabilitation were poor. Indeed, his Honour found "that the prospect of recidivism is high and that there is little, if any, prospect of rehabilitation" other than in the sense referred to by Dr Westmore, namely, his overall risk of re-offending might be reduced by advancing years. His Honour was entitled to make that finding on the evidence that was placed before him and that finding cannot and should not be disturbed by this Court. 16 The Crown had submitted before the sentencing judge that his Honour should sentence the applicant to imprisonment for life. That submission was carefully considered, as is reflected in the remarks on sentence, but the judge concluded that such a sentence would be inappropriate. In fashioning the sentence which was imposed the judge considered there were special circumstances which warranted a departure from the normal statutory ratio then in place. 17 The applicant has appeared in person and has submitted that this sentence was excessive. 18 The applicant should understand that this is a Court to correct error. The matter does not come back before this Court by way of a re-hearing. The record of the applicant was a matter of significance. Indeed, the offence for which the applicant was to be sentenced was committed in the course of what was on the applicant's record his nineteenth armed robbery. The effect of a record of that nature was referred to by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind". 19 The length of the applicant's criminal record and particularly the fact that it contains so many offences of armed robbery clearly obliged the sentencing judge to take into account those remarks of the High Court to which I have just referred. 20 This offence was, as I earlier remarked, committed whilst the applicant was on parole. This feature of the case added to the gravity of the crime committed. 21 Whilst the applicant has submitted before this Court there was no intention to shoot or to harm, nevertheless the robbery was committed with a loaded weapon. His Honour was alert to the circumstances and concluded that the culpability was "as great as murder committed intentionally". His Honour was, in the circumstances of this case, correct in law in reaching that conclusion and it was a conclusion open to him as a matter of fact. 22 I detect no error in principle in the remarks on sentence expressed by his Honour and, having heard what the applicant has put before the Court, I am not persuaded that there is any error which would warrant this Court's intervention. Indeed, I consider that the sentence imposed was, within the appropriate range. I would propose that leave to appeal be granted but that the appeal be dismissed. 23 STEIN JA: I agree with Justice Studdert, with his reasons and the orders which he proposes. While the sentence was a very severe one, no error is demonstrated in the sentence itself or in the reasons expressed by the sentencing judge. 24 WOOD CJ AT CL: I also agree. 25 STEIN JA: The orders of the Court are that leave to appeal should be granted but the appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.