Citation: Regina v Saso KRSTEVSKI [2002] NSWSC 977
Court: Supreme Court of New South Wales, Common Law Division
Date: 25 October 2002
Judge(s): Kirby J
Background
The accused was employed as an ink maker and had a documented history of fraud against his previous employer. After moving to a new employer's business, he quickly committed further fraud by forging company cheques in favour of himself and a close friend. By late January 2001, his new employer had grown deeply suspicious of him, had obtained a copy of his earlier confession to fraud, and had taken steps to dismiss him.
On 24 January 2001, the accused approached his employer from behind while the employer was crouched at work and speaking on a mobile phone. He struck the employer on the back of the head with a heavy metal drum lifter, then delivered at least four further blows to the face, neck, and chest. The employer died from the attack. Within 45 seconds, the accused telephoned a friend to announce what he had done.
The accused was tried and convicted by jury. This judgment dealt solely with the question of sentence.
Legal Issues
- What facts relevant to sentencing were established to the required standard of proof, consistent with the jury's verdict?
- Whether the killing was premeditated, and if so, to what degree.
- What was the operative motive for the murder, and how did it bear on culpability?
- Whether any finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was warranted to vary the standard non-parole period ratio.
- What sentence, including non-parole period, was appropriate given the objective gravity of the offence and the offender's personal circumstances?
Decision
Kirby J found that the murder was premeditated. Evidence from two witnesses established that the accused had announced his intention to kill his employer several days before the attack. The judge accepted this evidence as consistent, corroborated by an account given to police the day after the murder, and supported by the accused's own awareness that his employment was in jeopardy and that further fraud was about to be uncovered.
The court characterised the killing as callous and cowardly. The accused had used stealth, striking without warning while his employer was defenceless and unaware. The method involved hideous brutality: a blow of great force to the back of the head followed by further strikes when the victim was already incapacitated. The motive was to conceal the fraud already committed and to prevent discovery of the third cheque that had been dishonoured just days earlier.
Kirby J found the murder fell into a serious category because it was a purposeful, instrumental killing carried out for financial gain, with planning and without any provocation. The accused had no prior convictions for violence, had used his time in custody constructively, and presented as mild-mannered. However, the true motivation for the killing remained obscure, making confident predictions about rehabilitation difficult. The accused's account at trial, that he had acted under threats from his friend, was rejected by the jury and by the sentencing court.
On special circumstances, the judge declined to make a finding that would extend the parole period beyond the statutory ratio. Kirby J accepted that the accused was relatively young and might benefit from extended supervision, but concluded that the parole period resulting from the standard ratio was itself sufficient.
Orders Made
- The accused was sentenced to imprisonment for 24 years, commencing 16 February 2001.
- Non-parole period fixed at 18 years.
- Eligible for release on parole: 15 February 2019.
- Sentence expiry: 15 February 2025.
Key Takeaways
- Premeditation was established through consistent witness testimony that the accused had announced his intention to kill his employer several days before the attack, supported by contemporaneous accounts given to police.
- Where facts adverse to an offender are relied upon at sentencing, those facts must be proved beyond reasonable doubt; facts favourable to the offender need only be established on the balance of probabilities (following R v Storey and Olbrich v The Queen).
- A purposeful killing carried out to conceal existing fraud and facilitate further fraud was treated as a serious category of murder, attracting significant weight on the sentencing discretion.
- The court declined to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, holding that the parole period arising from the standard ratio was adequate in the circumstances, even where the offender was young and potentially in need of supervision.
- Uncertainty about an offender's true motivation, where the account offered at trial was rejected as absurd, weighed against confident findings of good rehabilitation prospects.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases
- R v Storey (1996) 89 A Crim R 519
- 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