R v Imbrisak [2006] NSWSC 1382 (14 December 2006)

Last Updated: 18 December 2006

NEW SOUTH WALES SUPREME COURT

CITATION: R v Imbrisak [2006] NSWSC 1382



CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 2005/984

HEARING DATE{S): 7/11/2005; 11/11/2005, 21/11/2005; 22/11/2005; 31/03/2006; 26/05/2006; 13/07/06

DECISION DATE: 14/12/2006

PARTIES:
Regina (Crown)
Alen Imbrisak (offender)

JUDGMENT OF: Hidden J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
J Keily SC (Crown)
J Spencer (offender)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Jeffreys & Associates (offender)


CATCHWORDS:
CRIMINAL LAW: Sentence
murder
manslaughter through excessive self-defence, malicious wounding
separate incidents
pleas of guilty
special circumstances
partial accumulation
totality

ACTS CITED:
Crimes Act 1990

DECISION:
Sentenced as follows: Manslaughter - fixed term of seven years from 17 December 2003
Malicious wounding - fixed term of two-and-a-half years from 17 December 2003
Murder - non-parole period of thirteen-and-a-half years from 17 June 2008, balance of term of five years.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Criminal LIST


HIDDEN J


14 December 2006


2005/984 REGINA V ALEN IMBRISAK


REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Alen Imbrisak, pleaded guilty before me to the following charges:

(1) The murder of Lei Zainal at Darlinghurst on 30 November 2003;
(2) The manslaughter of Csaba Bognar at Marrickville between 17 and 19 December 2003;
(3) The malicious wounding of Bernadette Bognar, also at Marrickville, on 17 December 2003.

2 The charges relating to Csaba and Bernadette Bognar arise from the same incident. The offender had been indicted for the murder of Mr Bognar and the malicious wounding of Ms Bognar with intent to do her grievous bodily harm, but the Crown accepted pleas of guilty to the charges I have set out in satisfaction of that indictment. I received agreed statements of facts in respect of the three charges.

Murder

3 Dealing first with the murder of Mr Zainal, the deceased was a man of slight build in his mid-forties. He came to this country from Indonesia in 1994 to undertake university study. Unfortunately, he discontinued his studies in 1999, his visa expired, he was unable to work and was concerned that he would be deported. He was a single man with no dependents.

4 At the time of his death, he had been supporting himself by working as a transvestite prostitute in the Kings Cross area for about three years. He would pick up men and take them to a secluded area, where he would fellate them. There was evidence that he always told his clients that he was a man.

5 He met his death at the hands of the offender in the small hours of 30 November 2003. The only account of the circumstances is that which the offender gave to Dr Westmore, forensic psychiatrist, in March 2006. It will be necessary to return to that account and to the psychiatric evidence generally. Put briefly, it was that the deceased approached him, offering sexual services, that he assumed that the deceased was a woman until he realised from the pitch of his voice that he was not, and that he was affronted by being approached sexually by a man.

6 A condom was found at the scene from which DNA of the deceased and further DNA which could have been that of the offender was extracted, and from this it appears that there was sexual activity before the killing. What is clear is that the offender stabbed the deceased a number of times in his neck, his face, his left shoulder and both arms. There were four stab wounds to the neck, one cutting the carotid artery and another the jugular artery.

7 The deceased was seen staggering in the street until he fell. Passers-by summoned an ambulance and he was conveyed to St Vincent’s Hospital. He died about 20 minutes after his arrival there. A forensic pathologist concluded that the cause of death was blood loss resulting from multiple stab wounds to the head and neck.

Manslaughter / Malicious Wounding

8 Csaba Bognar is the father of Bernadette Bognar. The background to the offences against them is that, for several months in the later part of 2003, the offender had been living with them at their home unit in Marrickville. He was romantically interested in Bernadette Bognar, but she did not reciprocate his feelings. He left the unit in late November 2003, after she had made it clear that she did not wish an involvement with him. Thereafter he visited her father and her on several occasions.

9 On 16 December 2003 he came to the unit, bringing with him some expensive birthday presents for Bernadette. She told him that she would not accept them and that she did not want to encourage him in any way. He became upset and left the unit, leaving the presents behind.

10 In the early morning of the following day, 17 December 2003, he came to the unit and, after ringing the doorbell for an extended period of time, was admitted by Mr Bognar. The two men went to the lounge room where they remained for a time. At the same time Bernadette was showering in the ensuite bathroom attached to her bedroom. After her shower, and while still in her bedroom, she heard loud footsteps and crashing sounds coming from the direction of the lounge room, and she heard her father screaming out her name.

11 She went to the lounge room, to see her father standing against a lounge chair and the offender facing him, holding a knife. He had the knife raised above his head with the blade facing towards her father. Mr Bognar had his hands up and was trying to hold the offender’s arm, apparently in an effort to prevent him from stabbing him. Bernadette saw blood on her father’s clothing, as well as in the immediate vicinity.

12 Mr Bognar called out to her to get a knife and she went to the kitchen, removed two steak knives, and returned to the lounge room. She ran towards the offender and stabbed him in the forehead, causing him to fall onto a mattress in the lounge room. She stabbed him in the left arm and in the chest area, the knife broke, and she tried to gouge out his eyes. The offender stabbed her to her head, her left ear and her left little finger. The injuries to her ear and her finger required surgery.

13 Mr Bognar called to her to get out of the unit. She ran outside and sought assistance from neighbours. The offender left the unit shortly afterwards. He was later arrested and conveyed to hospital. Mr Bognar himself made his way to the street, where he was assisted by Bernadette and by neighbours. He also was taken to hospital, where he died two days later. He had sustained multiple stab wounds to his head, his neck and other parts of his body. It was the wounds to his neck and his head, leading to severe haemorrhaging in the brain, which caused his death.

14 The offender’s account of the manslaughter of Mr Bognar is set out in the agreed statement of facts. Put briefly, it is that there had been an altercation between the two men before Bernadette came to the lounge room. What led to the altercation is not clear. Mr Bognar left the room, returned with a kitchen knife and attacked the offender. There was a struggle, during which the offender suffered defensive wounds to his right hand. As I understand it, the offender gained possession of the knife and he then stabbed the deceased a number of times.

15 The plea of guilty to manslaughter was entered, and accepted, on the basis of excessive self-defence. The offender believed that what he did was necessary to defend himself, but concedes that it was not a reasonable response to the circumstances as he perceived them: s421 of the Crimes Act. The Crown prosecutor accepted the plea because the offender was the only person who could give an account of what occurred at the relevant time. Moreover, observations at the scene and injuries to his hand were consistent with that account.

Subjective Case

16 The offender was 29 years old at the time of his offences, and he is now 32. He has a lengthy criminal record, dating from 1992, consisting mainly of drug offences and offences of dishonesty. He has served a number of short terms of imprisonment, but in 2001 he was sentenced to imprisonment for three years with a non-parole period of 18 months for assaulting a police officer in the execution of his duty. That is the only significant offence of violence on his record. He was arrested in respect of the Bognar matters on 17 December 2003 and has remained in custody since that day. He was later charged with the murder of Mr Zainal.

17 He was born in Croatia, and came to this country with his family when he was four years old. He was brought up by his mother and his stepfather, and has never known his biological father. He told Dr Westmore that his stepfather was violent towards him when he was younger, and that he frequently ran away from home and truanted. He did not fare well at school, and left after year 10. He worked as an apprentice chef for some years but, because he had difficulty with examinations, he never completed the apprenticeship. Nevertheless, he continued to work in that industry.

18 Apart from his romantic interest in Bernadette Bognar, he had had two relationships with women, both of which lasted about 12 months. Otherwise, his social network did not extend beyond associates he had met while in prison, and he was something of a “loner”. However, he appears to have maintained some contact with his family, and during his present period of custody he has been visited by his older sister.

19 He began using illicit drugs in his mid-teens. Over the years, he has used cannabis, heroin and cocaine. It is not his case that he had been using drugs at the time of the incident involving the Bognars, but he told Dr Westmore that he had injected cocaine before the killing of Mr Zainal. Since being in custody he has been on a methadone program.

20 Dr Westmore had two consultations with the offender, producing reports of October 2005 and March 2006. He is hepatitis C positive and reported having difficulties with his liver. He gave a history of being diagnosed with schizophrenia in 1998 and 1999. On both occasions he was put on antipsychotic medication and his symptoms abated. He had had no psychiatric treatment since. He told Dr Westmore that, at the time he killed Mr Zainal, he was depressed and was hearing voices. He associated that psychiatric phenomenon with his use of cocaine.

21 Dr Westmore noted his history of polysubstance abuse and arrived at a provisional diagnosis of a psychotic disorder. He also considered the offender to be suffering from an antisocial personality disorder, based on the nature and extent of his criminal history. He thought it likely that his use of illicit drugs would lead to a decline in his general level of functioning.

22 At Dr Westmore’s suggestion, the offender was examined by Professor David Sillence, Professor of Medical Genetics at the University of Sydney. The professor provided a report, to which it is not necessary to refer in any detail. It is sufficient to say that he examined whether the offender had a genetic disorder, in the light of his history of learning difficulties and his physical appearance. He found that history “highly suggestive” of such a disorder, but chromosomal testing was normal and he could reach no firm conclusion about the matter.

23 The fact that the offender killed twice within a relatively short period of time requires attention to whether he might be a continuing danger to the community, a question which Dr Westmore examined in his 2006 report. The doctor was concerned about the offender’s somewhat callous account of the circumstances leading to the death of Mr Zainal, and felt that there may be “concerns about his future behaviour towards transgender people” if he should be approached in a sexual way by such a person. That view, however, was expressed tentatively. Otherwise, the doctor noted that the two killings were unconnected and occurred in very different circumstances, and that the offender’s criminal history contains no entry for anything approaching the seriousness of the present offences. Generally, he found nothing in his history to suggest that he had “the psychological profile of a ‘serial killer’”.

24 Dr Westmore strongly recommended that the offender refrain from using any illicit drugs in the future, “as the use of drugs may precipitate psychotic symptoms in him and may impair his judgment and increase any propensity he might have to act impulsively”. The doctor also thought that he needed “extended therapy” to ascertain the full extent of his psychological problems, noting that he would be unlikely to receive therapy of that kind in custody.

Sentencing

25 I have had the benefit of comprehensive written submissions by the Crown prosecutor and oral submissions from Mr Spencer, counsel for the offender.

26 The murder of Mr Zainal carries a maximum sentence of imprisonment for life, and a standard non-parole period of 20 years. Without minimising the seriousness of the offence, it clearly does not call for the imposition of the maximum sentence. As will be seen, I also consider that there are reasons for departing from the standard non-parole period.

27 The killing was brutal and the motive for it is difficult to determine. The only explanation for the offender’s behaviour is that which he proffered to Dr Westmore, that is, that he was affronted by sexual contact with a person he discovered to be of his own sex. This is hardly an adequate explanation for his attack upon the unfortunate Mr Zainal, and it affords no significant mitigation of his crime. Moreover, by the nature of his lifestyle as a prostitute and the secluded area in which he had to ply his trade, the victim was vulnerable to violence and to serious injury.

28 On the other hand, there is nothing to suggest that the killing was planned. It was clearly spontaneous, and its very ferocity demonstrates that the offender was not thinking rationally at the time. I accept that he was in a disturbed state of mind induced, as he told Dr Westmore, by the ingestion of a prohibited drug. Having said that, the fact that he was affected by a drug is not of itself a mitigating factor in the circumstances of the case, and the evidence does not raise the special considerations concerning the sentence of mentally disordered people considered in cases such as R v Engert (1995) 84 A Crim R 67.

29 I approach the question of the standard non-parole period guided by the now familiar principles enunciated in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [117] ff. The relevant factors from that case and from subsequent cases were summarised by Simpson J in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13]. If it were necessary to express where the crime lies in the scale of objective gravity, I would place it at or about the mid-range. However, it is not necessary to express any concluded view about that because the offender’s plea of guilty and aspects of his subjective case, to which I shall refer later, provide sufficient reason to depart from the standard non-parole period. Nevertheless, that period remains relevant as a “sounding board” or “guide post” in the manner in explained in Way at [122].

30 The offender pleaded guilty to the murder on the day the case was fixed for trial. However, his legal representatives had then only recently been supplied with certain additional statements relevant to the Crown case. It could fairly be said, as the Crown prosecutor acknowledged, that he pleaded guilty when the totality of the Crown case was made known to him. I would recognise the utilitarian value of the plea by reducing the sentence otherwise appropriate by 15%. There was a strong Crown case, including admissions said to have been made to Bernadette Bognar. Nevertheless, the Crown prosecutor acknowledged, very properly, that the plea also demonstrates a measure of remorse.

31 Turning to the manslaughter of Mr Bognar, that offence carries a maximum sentence of imprisonment for 25 years. In practice, the range of sentence for manslaughter is very wide as the offence embraces an almost infinite variety of circumstances. Nevertheless, it is by its nature a serious offence because, whatever the circumstances, it involves the unlawful taking of a human life.

32 As I have said, what led to the altercation between the two men is unclear. The most that can be said, based upon the offender’s account to Dr Westmore, is that it was in some way connected to his relationship with Bernadette Bognar. However that may be, the plea was accepted on the basis that the deceased, Mr Bognar, was the initial aggressor and that the offender was acting in self-defence, although his response was excessive. Generally speaking, it can be said that manslaughter through excessive self-defence is one of the less serious categories of that crime. However, each case much be assessed on its own facts. While acknowledging the fear and sense of urgency which the offender must have experienced, proper regard must be had to the high level of violence which accompanied his response.

33 The malicious wounding of Bernadette Bognar carries a maximum sentence of seven years imprisonment. That offence also must be understood in the light of its unusual circumstances. Here again, the offender’s actions were an urgent response to Ms Bognar’s entirely understandable attack upon him in an attempt to protect her father. That said, the injuries she sustained were quite serious.

34 The pleas of guilty to these charges were entered at a late stage of the proceedings but, again, the Crown prosecutor conceded that they were offered when the whole of the Crown case was made known to the offender. For them I would also allow a discount of sentence of 15%. The Crown prosecutor acknowledged that they too demonstrate a measure of remorse.

35 As already observed, the offender’s lengthy criminal record contains no offence of violence of the order of those for which he now stands for sentence. Nevertheless, in the light of that criminal history, I must be guarded about his prospects of rehabilitation. I am also concerned about his psychiatric history and the fact, as it appears from the reports of Dr Westmore, that there remains a measure of uncertainty about the extent of his psychological problems and about his prognosis.

36 Having said that, the offender presents as a sad and isolated figure, the product of a difficult background. He faces for the first time a long period of custody, during which I can but hope that his personal problems, including his propensity to drug abuse, can be addressed professionally. It is obviously important that he have the opportunity in due course for conditional release into the community for an extended period, subject to supervision and the sanction of parole. I propose to structure the sentences which I must pass to that end.

37 If he is afforded the treatment and support which he requires, I believe that he has fair prospects of rehabilitation. Certainly, in the light of his background and the degree of remorse evidenced by his pleas of guilty, and assisted by the views of Dr Westmore, I think that it is unlikely that he would commit further offences of serious violence.

38 It was common ground that the sentences for the manslaughter of Mr Bognar and the malicious wounding of his daughter should be wholly concurrent, as the offences were closely related and arose from the same incident. Mr Spencer accepted that there must be some accumulation upon those sentences of the sentence for the murder of Mr Zainal, but counsel agreed that partial accumulation would be appropriate in recognition of the familiar principle of totality.

39 This is best achieved, as the Crown prosecutor submitted, by passing fixed terms of imprisonment for the manslaughter and malicious wounding and a sentence with a non-parole period for the murder. Accordingly, I would not fix non-parole periods for the Bognar offences because of the partial accumulation of the murder sentence. I shall assess the fixed terms by reference to what would have been the appropriate head sentences, rather than the non-parole periods which might have been fixed.

40 But for the pleas of guilty, I would have imposed sentences of twenty-two years for the murder, eight years for the manslaughter and three years for the malicious wounding. Rounding off figures after allowing a 15% reduction for the pleas, the sentences will be eighteen-and-a-half years, seven years and two-and-a-half years respectively.

41 I find special circumstances in respect of the sentence for the murder, because of the accumulation and because of the aspects of the offender’s subjective case to which I have referred. However, any departure from the normal statutory proportion must be modest. The non-parole period for that offence must itself reflect the gravity of that crime, and the effective non-parole period resulting from the partial accumulation must be sufficient to mark the totality of the offender’s criminality. The sentences I propose will still leave the offender with a lengthy period of parole eligibility.

42 Alen Imbrisak, for the manslaughter of Csaba Bognar you are sentenced to imprisonment for seven years, to date from 17 December 2003 and to expire on 16 December 2010. For the malicious wounding of Bernadette Bognar, you are sentenced to imprisonment for two-and-a-half years, also to date from 17 December 2003 and to expire on 16 June 2006. I decline to set non-parole periods in respect of either of those sentences.

43 For the murder of Lei Zainal you are sentenced to imprisonment for eighteen-and-a-half years, comprising a non-parole period of thirteen-and-a-half years, to commence on 17 June 2008 and to expire on 16 December 2021, and a balance of term of five years, to commence on 17 December 2021 and to expire on 16 December 2026.

44 The overall sentence, then, is imprisonment for twenty-three years, commencing on 17 December 2003 and expiring on 16 December 2026. You will be eligible for release on parole after eighteen years, that is, on 16 December 2021.

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LAST UPDATED: 14/12/2006