Citation: Regina v Flanjak [2003] NSWSC 779
Court: Supreme Court of New South Wales
Date: 20 August 2003
Judge(s): Adams J
Background
The offender was convicted by a jury of the murder of a woman with whom he had maintained a long-term extramarital relationship. On 28 May 2001, he shot her multiple times with a 9mm Beretta pistol at her home, inflicting 25 separate gunshot entry wounds. Within minutes of the shooting, he drove his car off the road and was found with a self-inflicted gunshot wound to the chest, the pistol's magazine empty save for one cartridge in the chamber.
At trial, the offender claimed that the deceased had borrowed the pistol earlier that day and shot him first in a jealous rage, and that he had no memory of the events thereafter. He also suggested, through counsel, that his wife or sons may have been responsible for the killing. The jury rejected these accounts and returned a guilty verdict.
Sentencing proceeded on the basis that the offender had brought the loaded weapon to the deceased's home and shot her, though Adams J accepted that the precise circumstances leading from the production of the pistol to the fatal shooting could not be established with certainty.
Legal Issues
- Whether the offender's account that the deceased fired first and provoked him was a reasonably possible basis for sentencing
- Whether the offender's attempted suicide and emotional state at the time of the offence were relevant mitigating factors
- The appropriate weight to give victim impact statements in the sentencing exercise
- Whether special circumstances existed warranting a reduction in the non-parole period below the statutory proportion
- How to balance the purposes of punishment, including deterrence, retribution, and protection of society, when the offender was unlikely to reoffend
Decision
Adams J rejected the defence submission that sentencing should proceed on the basis that the deceased fired first. The court found beyond reasonable doubt that the offender shot the deceased first and then turned the gun on himself. Several factors supported this conclusion: prior threats by the offender to kill the deceased if she ended the relationship, implausibilities in the offender's account of events immediately before the shooting, the weight of the pistol making the deceased's alleged use of it implausible, and the offender nodding in response to an ambulance officer's question about whether he had shot himself.
The court accepted that the killing occurred while the offender was in the grip of overwhelming emotion, anger, and despair, as evidenced by his emptying the magazine and immediately attempting suicide. While Adams J found no premeditated plan to kill the deceased when the offender arrived at her home, an intention to kill was formed during the encounter. The offender's background as an otherwise law-abiding citizen was noted, and the court found he was unlikely to reoffend.
Adams J addressed victim impact statements carefully, observing that such statements inform the court of the human consequences of a crime but do not determine the sentence. The relevant principle, drawn from R v Previtera, was that courts must remain objective and dispassionate, weighing all circumstances including the nature of the offence, the offender's intentions, and the public interest, alongside the interests of victims.
The court found that, while factors capable of constituting special circumstances existed, it was neither necessary nor desirable to reduce the non-parole period below the statutory calculation. The offender had expressed no remorse or contrition, a factor noted in the sentencing assessment.
Orders Made
- The offender was sentenced to a term of imprisonment of 20 years commencing 28 May 2001
- Non-parole period of 15 years fixed
- Earliest parole eligibility date: 27 May 2016
Key Takeaways
- A sentencing court is not bound to accept a factual scenario advanced by the defence at sentencing, particularly where that scenario was effectively rejected by the jury and the court independently finds it not reasonably possible on the whole of the evidence.
- Overwhelming emotional state at the time of a killing, evidenced here by an immediate attempted suicide, can be a relevant mitigating circumstance, though it does not diminish the gravity of a murder committed with an intention to kill.
- Under the principle affirmed in R v Previtera, victim impact statements inform the court of the human consequences of an offence but do not drive the sentencing outcome; the court must remain objective and dispassionate.
- Absence of remorse or contrition is a factor properly taken into account in sentencing, as Adams J explicitly noted in declining to further reduce the non-parole period.
- The purposes of criminal punishment identified in Veen v The Queen (No 2), including protection of society, deterrence, retribution, and reform, are not applied in isolation; the sentencing discretion requires each to be weighed against the others in light of the particular facts.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and non-parole periods)
Cases
- R v Previtera (1997) A Crim R 76 (relevance of victim impact statements to sentencing)
- Veen v The Queen (No 2) (1988) 164 CLR 465 (purposes of criminal punishment and the sentencing discretion)