New South Wales Supreme Court CITATION : Regina v Saso KRSTEVSKI [2002] NSWSC 977 CURRENT JURISDICTION: Common Law Division Criminal List FILE NUMBER(S) : SC 70005/02 20/05/02 - 24/05/02 27/05/02 - 31/05/02 03/06/02 - 07/06/02 HEARING DATE(S) : 11/06/02 - 14/06/02 17/06/02 - 21/06/02 24/06/02 - 28/06/02 01/07/02 - 04/07/02 06/09/02 JUDGMENT DATE : 25 October 2002 PARTIES : Regina Saso Krstevski JUDGMENT OF : Kirby J COUNSEL : B C Newport QC (Crown) P D Young (Accused) SOLICITORS : DPP - State (Crown) Nikola Velcic & Associates (Accused) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Sentence - Unprovoked murder to cover up fraud and facilitate further fraud LEGISLATION CITED : Crimes (Sentencing Procedure) Act, 1999 R v Storey (1996) 89 A Crim R 519 CASES CITED : Olbrich v The Queen (1999) 199 CLR 270 De Simoni v The Queen (1981) 147 CLR 383 R v Previtera (1997) 94 A Crim R 76 DECISION : Sentence - Ref Para 39 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST DAVID KIRBY J Friday 25 October 2002 70005/02 - REGINA v SASO KRSTEVSKI JUDGMENT ON SENTENCE 1 KIRBY J: On 4 July 2002, a jury found Mr Saso Krstevski guilty of the murder of his employer, Mr David Duncan. It remains for me to pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion in a manner consistent with the jury's verdict. Where facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Krstevski, it is enough that they should be proved on the balance of probabilities (R v Storey (1996) 89 A Crim R 519; Olbrich v The Queen (1999) 199 CLR 70). The relationship between Mr Krstevski and the deceased 2 In 1998, Mr Krstevski was employed as an ink maker with G & H Coatings of Marrickville. In September 2000, the owner of that company noticed that cheques were missing from the company chequebook. The cheque stubs were also missing. He made an investigation. Company cheques required two signatures. The signatures on the cheques had been forged. The cheques had been presented. They had been paid into the account of Mr Krstevski. 3 Mr Krstevski's employer assembled the documents which demonstrated the fraud. He confronted Mr Krstevski. At first, Mr Krstevski denied he was responsible. His employer threatened to go to the police. Mr Krstevski then admitted that he had forged the cheques and stolen the money. He signed a letter acknowledging responsibility. He agreed to repay the money by instalments. 4 Mr David Duncan was the proprietor of another ink making business at Botany. It was known as Hydrotech Ink. In October 2000, Mr Duncan purchased the business of G & H Coatings. It was part of the arrangement that Mr Krstevski would then work for Hydrotech Ink, introducing Mr Duncan to the techniques used by G & H Coatings. 5 Mr Krstevski began work with Hydrotech Ink on 23 October 2000. Soon after it was plain that Mr Duncan had misgivings about Mr Krstevski. Small amounts of money were stolen from the office. On occasions Mr Krstevski failed to attend work and, in various ways, showed himself to be unreliable. 6 In December 2000, Mr Krstevski defaulted in the repayments he was required to make to his former employer. Mr Duncan was furnished by that employer with a copy of Mr Krstevski's confession. On 5 January 2001, Mr Krstevski authorised Mr Duncan to subtract $50 each week from his wages to repay his previous employer. This disclosure added, no doubt, to the misgivings of Mr Duncan concerning Mr Krstevski and to his dissatisfaction. Fraud upon the company 7 Mr Krstevski had a friend, Mr Robert Dileski. They had been neighbours in Rockdale. They shared a Macedonian background. Mr Dileski was a heroin addict. On Friday 19 January 2001, Mr Krstevski forged two cheques. One was drawn in favour of Mr Dileski, and the other in his own favour. Mr Krstevski copied Mr Duncan's signature on each cheque. The cheques were presented that afternoon to the bank and cashed. 8 At the same time, a third cheque was removed from the Hydrotech chequebook. It was filled out by Mr Krstevski. The cheque was made payable to Mr Dileski. Again Mr Krestevski forged Mr Duncan's signature. The cheque was given to Mr Dileski. 9 The following Monday, 22 January 2001, Mr Dileski presented the cheque. The bank, however, was not satisfied with the signature. It declined to negotiate the cheque and returned it to Mr Dileski. 10 Mr Duncan, by this time, had determined that he would dismiss Mr Krstevski. Shortly before the events which I have described, Mr Duncan spoke to a friend, Mr David Lennie, about his legal obligations when dismissing an employee. On Tuesday 23 January 2001, the day before Mr Duncan's death, he had approached a former employee, and asked him to return to Hydrotech. In the same conversation Mr Duncan expressed himself dissatisfied with Mr Krstevski. The circumstances of David Duncan's death 11 On Wednesday 24 January 2001, Mr Krstevski began work at the normal time. A customer, Mr Duselis, came to the factory at 10.40 am to pick up an order. The order was not ready. Mr Duselis therefore waited. Only two people worked in the business, Mr Duncan and Mr Krstevski. Everything appeared normal to Mr Duselis. Mr Duselis finally left the factory at about 11.25 am. 12 Mr Duncan was in the habit of having lunch with a friend and business associate, Mr Robert Annesley. Mr Annesley rang Mr Duncan on a mobile phone to make arrangements. The call was made at 11.55 am. During the course of conversation Mr Duncan suddenly stopped talking. There was silence, except that Mr Annesley could hear the sound of metal striking metal. The sound was loud, as though it were close. It recurred three times, and then the call cut out. 13 It was common ground that Mr Annesley had witnessed the moment of Mr Duncan's death. At the time he was struck, Mr Duncan was at the rear of the factory. He was crouched down, mixing ink, talking to Mr Annesley with the phone cupped between his cheek and his shoulder. Mr Krstevski silently came up behind him. He was carrying a solid metal object known as a drum lifter. It consisted of a metal bar, with rotating arms at either end. The sound of metal on metal that Mr Annesley heard was the sound of the rotating arms as they hit the central fulcrum of the drum lifter. 14 Mr Duncan was struck on the back of the head with great force. His skull was fractured and he suffered massive brain injuries. Such was the ferocity of the blow that he did not even utter a cry. He dropped the phone. There followed at least four other blows. They were directed at Mr Duncan's face, his neck, and his chest. Each inflicted severe injuries. 15 It was said on Mr Krstevski's behalf that death was instantaneous. There was no element of prolonged suffering or terror. I accept that that was so. It was so because Mr Krstevski intended that there should be no mistake. He set out to kill Mr Duncan, and the method he employed involved hideous brutality. He showed no mercy. It was a callous and cowardly attack. 16 The attack was over in 45 seconds. That short interval separated the time that Mr Annesley's phone call terminated and a call made thereafter by Mr Krstevski. The call was made on the phone Mr Duncan had been using at the time of the attack. Mr Krstevski telephoned Mr Dileski. The call was made at 11.57 am. Mr Krstevski said to his friend simply, "I did it. Come around." 17 Mr Dileski knew at once what Mr Krstevski had done. He said to his companion, Mr Apostolovski, these words: "Saso's just done the boss." Mr Krstevski's brief message was understood because he had discussed his malevolent intention towards Mr Duncan several days earlier. Mr Dileski and Mr Apostolovski each gave evidence that two days before the attack, Mr Krstevski said that he intended to kill Mr Duncan. Neither took his statement seriously at the time it was made. 18 In making these findings I am conscious of the need to be persuaded beyond reasonable doubt. I am also conscious of the attack made at the trial upon the credit of Messrs Dileski and Apostolovski. Mr Dileski, at least, was an accomplice to Mr Krstevski's fraud. He also pleaded guilty to having been an accessory after the fact of Mr Duncan's murder. 19 However, that notwithstanding, I am persuaded that Mr Krstevski had, indeed, announced his intention to kill Mr Duncan several days before he did so. There was, therefore, premeditation. First, the accounts given by Messrs Dileski and Apostolovski were consistent and were believable. Secondly, they gave the same account to Constable Sammons the day after the murder, 25 January 2001. Thirdly, Mr Krstevski knew that Mr Duncan was unhappy with him as an employee, and that he no longer trusted him. Mr Duncan had not given Mr Krstevski notice. Nonetheless, Mr Krstevski well understood that his days in the job were numbered. Fourthly, Mr Krstevski had, before 24 January, already committed fraud, as I have described. He was, moreover, intent upon further fraud, as I will shortly describe. The presence of Mr Duncan was an impediment to that fraud. 20 Having murdered Mr Duncan, Mr Krstevski cleaned up. Mr Duncan's body was placed in an ink barrel, which was then sealed. Soon thereafter, Messrs Dileski and Apostolovski arrived at the factory. With Mr Krstevski, they went to the upstairs office. The steel grill door to the office was locked. Mr Krstevski had removed the key to the office from Mr Duncan's body, which he then used to open the security grill. Once in the office, Mr Krstevski obtained the company chequebook. He wrote a number of cheques. One was in favour of Mr Dileski. Another was drawn in his own favour. He forged, in each case, Mr Duncan's signature. A plan was devised to facilitate the cashing of the cheques. It is not clear who devised the plan. Mr Dileski was given a business card of Hydrotech Ink. He went to the bank. When he was questioned by the bank officer about the cheque, he invited the bank to telephone Mr Duncan. He presented the business card. The bank rang Hydrotech Ink. Mr Krstevski answered the phone, posing as Mr Duncan. He authorised the payment. And so it was that the first cheque was negotiated. Messrs Dileski and Apostolovski then returned to the factory. 21 Mr Krstevski, in the meantime, had changed from his work overalls into his street clothes. He then went to the bank. Mr Dileski manned the phone. His intention was to authorise the payment to Mr Krstevski when the bank rang. 22 However, Mr Annesley, Mr Duncan's friend, arrived at the factory before the call. Mr Dileski then abandoned the phone. He and Mr Apostolovski left the factory. The bank then rang. Mr Annesley answered the telephone. He was already alarmed by the absence of Mr Duncan. He therefore referred the bank to Mr Duncan's wife, whose telephone number he provided. Mrs Duncan refused to authorise payment of the cheque. Instead, she called the police and herself set out for the factory. 23 Mr Krstevski returned to the factory, no doubt puzzled by what had gone wrong. Instead of finding Mr Dileski and Mr Apostolovski, he found Mr Annesley waiting. The police arrived soon after. Mr Krstevski was arrested later the same day. 24 Apart from the two cheques which were presented to the bank that afternoon, a number of other cheques and cheque butts were missing from the company chequebook. They have never been found. Messrs Dileski and Apostolovski gave evidence that Mr Krstevski said, before the murder, that he intended to write a cheque for $25,000. Mr Krstevski, when he gave evidence, acknowledged that on 24 January he wrote a cheque for that sum. He did so, according to his testimony, at the request of Mr Dileski, and for Mr Dileski's benefit. He claimed that the cheque was given to Mr Dileski. That cheque has also not been found. 25 I am satisfied that Mr Krstevski was intent upon further fraud involving the missing cheques. It is impossible to say, on the evidence, precisely how much was in contemplation, or what the precise arrangements were between he and Mr Dileski. 26 I am satisfied, nonetheless, that Mr Duncan was murdered in order to facilitate fraud, and to cover up the fraud which had already been committed. I am, of course, not sentencing Mr Krstevski for fraud (De Simoni v The Queen (1981) 147 CLR 383). I am sentencing him for murder. However, it is important that I identify the context within which the murder took place. By any standards, the objective seriousness of the offence is of a very high order. 27 It was said, on Mr Krstevski's behalf, that he was under the influence of Mr Dileski. It was submitted that his moral culpability therefore, must be judged in that light. The relationship between Mr Krstevski and Mr Dileski was certainly odd. It was described by Mr Krstevski's counsel as one of the great enigmas of the trial. I do not accept, however, that Mr Krstevski was influenced by Mr Dileski in his plan to kill Mr Duncan. Specifically, I reject, as did the jury, that Mr Krstevski acted against Mr Duncan because of threats made by Mr Dileski against him. Mr Krstevski is not weak minded. He is not unintelligent. He is well educated. At its highest, he was encouraged by Mr Dileski in his fraud. 28 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. I have been furnished with the Victim Impact Statements of members of Mr Duncan's family. The statement of his wife, Mrs Margot Duncan, and those of his children, Alex, Bonnie, Tim and Harrison, are amongst the saddest and most moving that I have read. One can only sympathise with the anguish of the family at the senseless destruction of a life that had delivered so much and had so much more to give. However, I must, of course, deal with such material in a manner consistent with the principles identified in R v Previtera (1997) 94 A Crim R 76 at 85. 29 Let me pass from the circumstances in which the offence was committed to the subjective case of Mr Krstevski. The subjective case of Mr Krstevski 30 Mr Krstevski gave evidence at the trial. He did not, however, give evidence on sentence. He nonetheless furnished a statement of his background. He was born on 8 November 1975 in Macedonia. He came from a good family. He had a happy childhood. He completed high school and enrolled in university. He was obliged to interrupt his university studies when conscripted into the army. He completed one year's service in the army, and thereafter travelled to Australia with his parents in 1996. 31 Once in Australia, Mr Krstevski furthered his education. He undertook a number of courses, first with the Commonwealth Employment Service in English (and he now speaks good English), and then with TAFE in Office Skills in 1998. At the same time he attended evening courses to improve his computer skills. He obtained employment in the security industry and then as an ink maker with G & H Coatings. His life, to that point, appeared exemplary. 32 In December 1999, Mr Krstevski was charged with having goods in his possession reasonably suspected of having been stolen. He was also charged with having furnished false or misleading information. It appears that he pleaded guilty to each charge. He received a modest fine in respect of each offence. The fraud against G & H Coatings, which I have described, began in about July 2000. 33 Mr Krstevski, in Macedonia, as well as Australia, played soccer, where he excelled. Since his arrest on 24 January 2001, the day of Mr Duncan's murder, he has remained in custody. He has used his time well. He has further improved his English and undertaken courses which have included instruction in respect of drugs and alcohol. 34 Mr Krstevski was examined by Dr Westmore, Forensic Psychiatrist, both before and after the trial. Mr Krstevski maintains his innocence. Whilst expressing sorrow for the family at their loss, Mr Krstevski insisted that he was not responsible. There is no contrition. There can be no real remorse without an acceptance of responsibility. 35 In his report of 12 August 2002, Dr Westmore expressed the following view concerning the danger posed by Mr Krstevski: "It is difficult to pass any definitive comments regarding his potential for future dangerousness. This event does appear to have been a very specific incident involving Mr Krstevski and his employer. There is no evidence in his history to suggest that he represents a risk to the general community, that is, there is no history which would suggest he might be a random type killer." 36 Turning to the prospects of rehabilitation, Mr Krstevski presents as a puzzle. He is mild mannered and polite. He is well educated. He was described by Dr Westmore as being of at least average intelligence. He has, as I have described, used his time in gaol well. He has no history of violence, or convictions for crimes of violence. Yet, Mr Krstevski committed a crime of unimaginable brutality. He employed stealth in catching Mr Duncan unawares. His crime has a chilling, cold blooded quality to it. It was committed, moreover, for reasons which are difficult to comprehend. Certainly Mr Krstevski had an urgent need of money. However, money, as a motive, is not an entirely satisfying explanation for his crime. One suspects that the key lies in the true nature of his relationship with Mr Dileski, a heroin addict. The description Mr Krstevski gave in evidence of that relationship, where he acted under threats from Mr Dileski, was absurd, and rejected by the jury. Such an assertion was inconsistent with Mr Krstevski's long association with Mr Dileski, and the nature of their relationship. Whilst ever the true motivation of Mr Krstevski remains a mystery, it is difficult to predict the future and say, with confidence, that a similar crime is unlikely. At best, one can say that the prospects of rehabilitation, given time and maturity, are reasonable. Special Circumstances 37 I have been urged to make a finding of special circumstances (s44(2) Crimes (Sentencing Procedure) Act, 1999). Mr Krstevski is a relatively young man. There are hints of his suffering problems with drugs and gambling. Mr Krstevski may well benefit from an extended period of supervision. In other circumstances a finding of special circumstances may have been justified. However, necessarily the parole period must itself be significant. It is, in my view, sufficient without adjustment. 38 As mentioned, Mr Krstevski was arrested on 24 January 2001, but allowed to leave on 25 January 2001. He was thereafter re-arrested on 16 February 2001. He has remained in custody since that date. His sentence, therefore, should date from 16 February 2001. 39 Saso Krstevski, I sentence you to imprisonment for 24 years commencing on 16 February 2001, with a non-parole period of 18 years. You will be eligible for release on parole on 15 February 2019. Your sentence will expire on 15 February 2025. ********** Last Modified: 10/28/2002 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.