REGINA v FLANJAK [2003] NSWSC 779

New South Wales Supreme Court

CITATION : REGINA v FLANJAK [2003] NSWSC 779 HEARING DATE(S) : 27/2/03, 3/3/03-7/3/03, 10/3/03-14/3/03, 17/3/03-21/3/03, 9/5/03, 20/8/03 JUDGMENT DATE : 20 August 2003 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Sentenced to a term of imprisonment of twenty years to commence on 28 May 2001 with a non-parole period of fifteen years. The earliest date upon which he will be eligible for parole is 27 May 2016.

CATCHWORDS : Criminal Law - sentence - murder - multiple gunshot wounds - attempted suicide by offender - prior relationship between deceased and offender - relevance of victim impact statements - sentencing principles CASES CITED : R v Previtera (1997) A Crim R 76 Veen v The Queen (No 2) (1988) 164 CLR 465 Regina PARTIES : v Michael Flanjak FILE NUMBER(S) : SC 70056/02 COUNSEL : J Spencer, M Crowley (Offender) M Cunneen (Crown) SOLICITORS : Ragani Lewis, Office of the Director of Public Prosecutions (Crown) Ivan Mednis (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

ADAMS J WEDNESDAY 20 AUGUST 2003

70056/02 REGINA v FLANJAK

JUDGMENT ON SENTENCE 1 ADAMS J: On 21 March 2003 the offender, Michael Flanjak, was convicted by a jury upon an indictment charging him with the murder of Ana Cepernic on 28 May 2001. The offender shot Mrs Cepernic with a 9mm Parabellum calibre Beretta automatic pistol which he had owned for some time. Mrs Cepernic was shot shortly after 4.30pm on 28 May 2001. Only a few minutes after that, the offender's motor vehicle was seen not quite a kilometre away to drive off the road, hit an embankment and then a tree. The offender was found by a motorist who saw this happen, collapsed on the front seat. In due course it was discovered that he had a bullet wound in his chest. The Beretta pistol was found in the car, its magazine empty but with a cartridge in the breach. It is clear that he had not been shot in the car, since the bullet was not recovered, though it had passed through his body. 2 Thirteen empty cartridge cases, which had been fired from the Beretta, were found at the scene of the murder. An autopsy of the deceased discovered twenty five separate gunshot entry wounds but a number of these were fragments, almost certainly from bullets which had broken up, some after passing through the body and others from the bullet first striking other objects. There were a number of what appeared to be defensive injuries and only one gunshot wound would have been immediately fatal as it entered the chest cavity and injured the heart. Of the other wounds, only one would have been fatal without surgery. On all the evidence, I am satisfied beyond reasonable doubt that the offender emptied the magazine of the pistol, except for one cartridge, whilst shooting at the deceased, who tried to defend herself, and then turned the gun on himself in an attempt to commit suicide. 3 The offender's case was that he had lent the pistol to Mrs Cepernic earlier on the day of her death, that she shot him in a jealous rage when he refused to leave his wife to live with her and that he thereafter remembers nothing until he regained consciousness in the hospital where he was being treated for his chest wound. He claimed that he did not know whether he had fired the shots that killed Mrs Cepernic and it was suggested in cross-examination and to the jury by counsel appearing for him that his wife, Olga Flanjak, was the killer although it was also weakly suggested that one or other of his sons might also have committed the crime. It is obvious from the verdict that the jury did not have any reasonable doubt that Mrs Cepernic died at the offender's hand. I am bound, of course, by that verdict but I wish to add, considering the grave injustice done to Mrs Flanjak on behalf of the offender, that the suggestion that she killed Mrs Cepernic was, to my mind, without reasonable foundation and the same is true of the suggested guilt of the offender's sons. It is necessary to add, however, that I have not taken this aspect of the case into account in determining the appropriate sentence to be imposed. 4 The only evidence of the offender's loss of memory is his assertion to that effect. It is obvious from his brief communications with the ambulance officers who attended him shortly after he crashed his car that, at that time, he did not have any impairment of memory. I have carefully considered the evidence that the offender gave about this matter and, bearing in mind my own view of his presentation and demeanour as a witness, I have concluded beyond reasonable doubt that he remembers very well what occurred and that his evidence in this regard was a fabrication. 5 The consequence of the offender's asserted loss of memory is, for present purposes, that there is no account from him as to what occurred. Mr Spencer of counsel, for the offender, submitted that I should conclude, for the purpose of sentencing, that the offender was first shot – as he claimed in his evidence in the trial – by Mrs Cepernic in a jealous rage and that he then took the gun from her and emptied the magazine at her in an excess of emotion and anger and then fled the scene. Although this scenario was probably rejected by the jury, I am unable to say that it was certainly so, even though the defence of provocation was rejected, because it was open to the jury to reject that defence upon the basis that, although the offender was shot first, his response exceeded that which might have been expected from an ordinary person in his position. 6 It is therefore my responsibility to consider whether the scenario proposed by Mr Spencer on behalf of the offender is reasonably possible. I am of the view that it is not and that the only reasonable conclusion on the whole of the evidence is that the offender shot Mrs Cepernic first and then attempted to kill himself. The reasons for this conclusion can be shortly stated. The offender said that Mrs Cepernic had told him that she was afraid of being attacked and borrowed the pistol to defend herself. The offender said he showed her how to shoot the gun with one hand because "It's not a very heavy pistol" but he was unable to recall which hand she used to fire the weapon. The pistol was in fact quite heavy, even without the fourteen cartridges with which it must have been loaded at the time of the crime. The sequence of events as related by the accused concerning the interchanges between him and Mrs Cepernic in the period shortly before his final fatal visit to her home and the conversations which he said he had with her at those times is most unlikely, especially his account of what happened immediately before the shooting. Furthermore, on earlier occasions the offender had threatened to kill Mrs Cepernic if she broke off with him, at one point saying that he would fill her with sixteen bullets if she did so. The offender was asked by the ambulance officer who spoke to him very shortly after he was found in the car if he had shot himself, to which he nodded in assent. I have no doubt that he understood the question and intended to indicate "yes". 7 The evidence about the nature of the relationship between the offender and Mrs Cepernic, except that they had been man and mistress for many years, is rather slight and I cannot say with certainty what, at about the time of the shooting, their respective attitudes were. No doubt their feelings fluctuated. I think it probable that the shooting followed an argument. Whether it was the offender who wished to bring the relationship to an end or Mrs Cepernic I cannot say, though the probabilities favour the latter finding. In the end, although I have no doubt that the offender brought the pistol to Mrs Cepernic's house at the fateful time and that his evidence about having earlier left it with her is untrue, I am unable to be satisfied beyond reasonable doubt that, when he did so, he intended to kill, as distinct from threaten, her. So far as his culpability for the murder of Mrs Cepernic is concerned, it matters little whether he produced the gun for the purpose of frightening her into ceasing their relationship or continuing their relationship. Either way, it was very wrong of him to have done so. How and why events moved from the production of the pistol to its being used to kill Mrs Cepernic, I am unable to say. The offender was very experienced with guns. He took a loaded gun to Mrs Cepernic's house for some reason. It may well be that, when he did so, he had no intention of shooting her but that, during whatever exchange occurred, it is obvious that he did form the intention of killing her. I accept that the fact that he immediately turned the gun on himself demonstrates fairly convincingly that he was in the transports of emotion and despair. 8 Subjectively, Mr Flanjak's situation is such that it is fair to conclude this was a startling aberration in the life of an otherwise law-abiding citizen. He is presently aged fifty-three. His immediate family comprises two adult sons, an older sister who is married with children and now looks after his father who, at the time of the offence, was living with Mr and Mrs Flanjak. The offender learnt the building trade in Croatia and arrived in Australia in 1973, immediately getting work in the building industry. In August 1974 he married and his first son was born in May 1976 with the second son born about eighteen months later. Early in 1980, the offender started his own business, mainly cement rendering and his sons joined him in that business in the early 1990s. He was a very hard-working man and his business thrived. It appears that the offender commenced his relationship with Mrs Cepernic about 1985, so that it had subsisted for about fifteen years as at the date of the offence. The offender injured his back at work in 2000, which prevented him from working and may have had the effect of intensifying his relationship with the deceased, because he was not spending as much time working as he otherwise would have. 9 The offender has been in custody since 28 May 2001 so that he has spent something over two years on remand. Custody whilst on remand is rather harsher for a number of reasons than custody following sentence and it is appropriate that some allowance for this circumstance should be made. 10 Victim Impact Statements from Mrs Cepernic's husband and two children have been tendered. They give eloquent expression to the regard and affection which they held for the deceased. They also express the intense pain and distress which her death has caused and which the passing of time will do little to ease. 11 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was kind and generous, loved and surrounded by friends and family. If this were not so, counsel for the murderer might well submit that, as the victim was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. More difficult, perhaps, to accept but also important is the notion that the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires value also to be ascribed to the lives of those who come to be sentenced. 12 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ said – "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 13 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. The public interest as well as the personal interests of the victims must be reflected in the outcome. As is obvious, these considerations will be in tension, if not in conflict. 14 In this case, I sentence the offender upon the basis that his killing of Mrs Cepernic was whilst in the throes of overwhelming emotion, anger and despair not only to the extent that he emptied the magazine of the pistol whilst doing so but also that he attempted to kill himself. I have no doubt that the offender will not offend again. Nevertheless, the crime of murder committed with an intention to kill, is very grave and I must impose a substantial term of imprisonment. 15 Although the evidence discloses factors which could, in my view, constitute special circumstances within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999, I do not think that it is either necessary or desirable to reduce the non-parole period to less than that which would otherwise be imposed by virtue of the statutory calculation. I observe that the offender has not expressed any remorse or contrition for his crime. 16 Accordingly, Michael Flanjak is sentenced to a term of imprisonment of twenty years to commence on 28 May 2001 with a non-parole period of fifteen years. The earliest date upon which he will be eligible for parole is 27 May 2016. **********