Director of Public Prosecutions v Anthopoulos, Paul
[2012] VCC 1935
•5 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00611 &
CR-12-00421
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL ANTHOPOULOS |
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JUDGE: | HER HONOUR JUDGE THORNTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2012 | |
DATE OF SENTENCE: | 5 December 2012 | |
CASE MAY BE CITED AS: | DPP v Anthopoulos, Paul | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1935 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence – plea of guilty – intentionally cause injury to six victims – aggravated burglary – false imprisonment – youthful offender
Sentence: TES: 4 years’ and 2 months’ imprisonment – non-parole period of 2 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Thomson (Plea) Ms K. Richter (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. Melasecca | Michael Kelly Solicitors |
HER HONOUR:
Plea
1 Paul Anthopoulos, you have pleaded guilty to six charges of intentionally causing injury[1] involving six victims, one charge of aggravated burglary being with intent to assault and knowing that a person was present or being reckless as to whether or not a person was present,[2] and one charge of false imprisonment.[3]
[1]Crimes Act 1958, s18; Charges 1,2,3,5,6 and 8.
[2]Crimes Act 1958, s77; Charge 4.
[3]Contrary to common law; Charge 7.
2
The offending occurred on one day at South Melbourne and Noble Park on
22 May 2011.
3 You have pleaded guilty on the basis of acting in concert with Sean Kurukchi for Charge 3, intentionally causing injury to Luke MacPherson.
4 You have pleaded guilty on the basis of acting in concert with Sean Kurukchi and two other men for each of Charges 5 and 6, intentionally causing injury to Chad Walker and Paul Mackay, after entering an address in Noble Park and a bungalow which was at the rear of the premises.
Maximum penalty
5 The maximum penalty for the offence of aggravated burglary is 25 years’ imprisonment.
6 The maximum penalty for intentionally causing injury is 10 years’ imprisonment.
7 The maximum penalty for false imprisonment is 10 years’ imprisonment.
Circumstances of the offending
8 You agreed with the facts of the offending which were tendered by the prosecution and read in court. Those facts form the basis of this Sentence.[4]
[4]Exhibit A dated 14 November 2012. A scanned copy of the Prosecution Opening is attached as Appendix 1.
Charge 1 – intentionally cause injury
9 In the early hours of Sunday, 22 May 2011, Sean Kurukchi drove you and his brother to the Hungry Jacks adjoining the United Service Station on Kings Way, South Melbourne after leaving Crown Casino. It was about 5.25 am. You had purchased take-away food and Jean-Paul McAllan was sitting in the driver’s seat of his vehicle in front of the service station with his friends, Michelle Mai and Ray Balisoro, consuming food which they had just purchased. You approached the car and said, “What are you looking at?” directed towards Mr McAllan and when he put up his hands and shook his head, you then said, “Come on then, you fucking gook”. Mr McAllan said, “I’m just eating, man. I’m not looking at anything”.
10 After making gestures motioning for Ms Mai to join you and Sean Kurukchi, you opened the driver’s car door and Sean Kurukchi reached in and took the ignition keys. Together with Mr Kurukchi, you told Mr McAllan to get out of his car and fight. Mr McAllan said he did not want any problems and you both taunted him and his female passenger, asking to use his phone and continuing to press him to get out of his car.
11 He remained seated in his car and Sean Kurukchi threw the car keys at him and then you punched him hard to the right eye. You both slammed the car door and started joking about what had happened. You both asked Ms Mai to join you. Mr Kurukchi’s brother intervened and you both eventually went back to your car.
12
Mr McAllan vomited and Ms Mai rang 000. The police and ambulance arrived later but Mr McAllan and his friends had by that time left in a taxi because
Mr McAllen was too sick to drive and the police were dealing with another incident. About 2.30 pm, Mr McAllan attended the Monash Medical Centre where a scan revealed that he had a fractured right eye socket. Your conduct in punching Mr McAllan constitutes the first charge of intentionally causing injury.
Charges 2 & 3
13 After returning to your car at Hungry Jacks, and as Sean Kurukchi was driving out of the service station which adjoins the Hungry Jacks outlet on Kings Way, you saw Luke MacPherson and Matthew Greenwood sitting on the nature strip.
14
They were eating food which they had just purchased from the outlet when Sean Kurukchi yelled something at them and Mr MacPherson responded something like, “Good on you, mate”. Mr Kurukchi swore at him and then both of you got out of the car and ran towards them. Sean Kurukchi kicked
Mr MacPherson to the face with a full-force roundhouse kick, knocking him unconscious. His injuries, in addition to the unconsciousness, were a broken nose, a split lip and bruising to his face. Your conduct in acting in concert with Sean Kurukchi in this incident is the basis of Charge 3, intentionally causing injury to Luke MacPherson.
15 You punched Mr Greenwood to the face while he was sitting on the nature strip and he jumped up and started scuffling with you. You hit him several times to the face, causing bruising and soreness, which is the conduct which forms Charge 2, intentionally causing injury to Mr Greenwood.
16 Both Mr Greenwood and Mr MacPherson were later taken to Royal Melbourne Hospital by ambulance. You left in the car driven by Sean Kurukchi in the company of his brother.
Charges 4, 5, 6, 7 & 8
17
At about 6.30am on the same day as the earlier offending, you, Sean Kurukchi, his brother and an unknown male, forced your way into a house at
5 Chandler Road, Noble Park where three people were sleeping. Another person was sleeping in a bungalow at the back of the house. This is the conduct which constitutes aggravated burglary, Charge 4.
18 You and the other three men confronted Mehmet Kurt, who was asleep on a couch in the living room and said that you were looking for “TJ” who owed you $5,000.
19 You and the other three men then forced your way into a bedroom where Chad Walker and his girlfriend, Rachel Green, had been sleeping. Mr Walker had barricaded the door of the bedroom with a couch. All of you entered the room yelling at Mr Walker about “TJ” and the money he owed. Mr Walker said he knew nothing about it, and one of you hit him over the head with a pot, knocking him to the ground and cutting him over the right eye. He sustained a laceration which was sutured at the Dandenong Hospital, and this is the conduct which constitutes Charge 5, intentionally causing injury to Chad Walker on the basis of acting in concert.
20
You and the other three men then left the house, breaking into the bungalow at the rear by smashing a glass sliding door. Mr Paul Mackay had been sleeping in the bungalow and was confronted by you and the other men about owing them money. One of you hit him on the head with a pot and another hit him with a broom handle. He was bleeding from the left temple and had pain in his back when he escaped and ran away up Chandler Road towards Heatherton Road. This is the conduct which constitutes Charge 6, intentionally causing injury to Mr Mackay on the basis of acting in concert.
Mr Mackay suffered bruising to the forehead and left eye and abrasions to the left cheek, elbows and knees.
21 After this assault, Mr Mackay was taken to the address where Mr Kurukchi lived and was permitted to shower and given fresh clothing. At about 11.30 am, he was driven to premises in Heatherton Road, Noble Park, where the Kurukchi family conducted a finance company business. He was taken there by Sean Kurukchi, his brother and you. Sean Kurukchi and you later drove him back to the Chandler Road address but when you arrived police were in attendance at the house. You told Mr Mackay not to make a statement to police and you said that your father was a lawyer and that if he made a statement you would be able to use it in some way. Mr Mackay was taken back to Mr Kurukchi’s home address and eventually released. This is the conduct which constitutes false imprisonment, Charge 7.
22 Mr Mackay went to Dandenong and bought some food and a jumper and then walked to the city where he slept in an abandoned car.
23
The police had attended the Chandler Road address in Noble Park and left at about 5 pm, after investigating an unrelated aggravated burglary. You and Sean Kurukchi then returned to the house and remonstrated with Mr Kurt about going to the police. You both punched and kicked Mr Kurt to the ground and you, Mr Anthopolous, struck him to the head with a caulking gun, injuring his left orbital wall, left mastoid and left mandibular ramus. He was admitted to Dandenong Hospital where he was treated for multiple bruising to his forehead and around his right eye, localised swelling on his left forehead, and tenderness to the left mandible. He was released from hospital two days later. This is the conduct which constitutes intentionally causing injury to
Mr Kurt, Charge 8.
Victim Impact Statement
24 Mr MacPherson is the only victim who has made a Victim Impact Statement, being the person who was kicked to the face and knocked unconscious by Sean Kurukchi in your company. He stated that he was aged 19 when he was admitted to the Royal Melbourne Hospital Emergency Department via ambulance and he required follow-up treatment for his broken nose for several weeks after being discharged, finding the experience extremely painful. He had to take time off work and was financially burdened with his medical bills. He still suffers from migraines and has difficulty sleeping because his breathing through his nose has been affected. He believes that this affects his performance at work.
25 He found the attack frightening and because he had not previously attended the CBD at night, he found the experience to be psychologically damaging, causing him to become hypervigilant. He has suffered a loss of confidence, being unable to return to the city or attend public venues after dark because of the anxiety and paranoia that he has experienced since this attack.
Your background
26
You are 25 and committed these offences at 23. After finishing Year 10, you completed an apprenticeship in carpentry. You were arrested on 24 June 2011, remanded in custody but released on bail four days later after an assessment by Clinical Psychologist, Dr. Michael King.[5] You successfully completed the Court Integrated Services Program and were supervised by
Mr Joe Lamberti, Rehabilitation Consultant[6] who has known your family for about 20 years through his treatment of your father. Mr Lamberti testified that you have been cooperative, punctual, free of illicit substances and enjoyed working and spending time with your family.
[5]Exhibit 2 dated 28 June 2011.
[6]Exhibit 3 dated 27 June 2011.
27 Mr Lamberti testified that your main problem has been a dependency on amphetamines but you have beaten this addiction. He referred to the fact that you had been smoking "ice" which had caused you to suffer paranoia, misdirected anger, and anxiety attacks.
28 You were immediately bailed to live with your maternal uncle who employed you in his building and architectural design company. He testified that you were a hard worker, responsible and that your offending conduct was completely out of character. He testified that you were employed by him from mid 2011 until Christmas and that his brother took over the responsibility for supervising you when he went overseas. He was aware of your close family relationships and the fear that your family endured in respect of the person known as “TJ” who had threatened to harm them.
29 Your other maternal uncle testified that he was also a builder, has seen you growing up and that you skilfully completed a large roof for him. He also testified that you have a good work ethic and that he was shocked when told about your offending. He has observed you to be remorseful. You subsequently resided with your parents and sister during the bail period and were compliant with stringent bail conditions.
30 Your family situation has been dysfunctional because your father has for many years been an alcoholic and suffers from bipolar disorder. Your sister has been diagnosed with borderline personality disorder and there has been a strained relationship between your father and sister resulting in intervention orders and breaches of those orders. You have protected your mother and sister from your father in the past and since June 2012 have moved to live with your father as his carer to ensure that he takes his medication and minimises his alcohol consumption. Mr Lamberti testified that in moving to live with your father, you have become isolated, struggle with continued cannabis use and are somewhat depressed suffering severe anxiety about your forthcoming court appearance. He regarded you as being realistic about attainable goals, dedicated to your father, protective of your sister with an ambition to work hard and start your own family.
31 Your mother and sister gave evidence that you have ceased your drug use and have supported the family by caring for your father. Your sister testified that she had become involved with the person known as "TJ", whom she had met in a psychiatric unit, and that he had threatened her and your entire family. She testified that you have been protective of both her mother and her at times when her father was mentally ill or affected by alcohol.
32 You first appeared in the Melbourne Magistrates’ Court in June 2008 for charges of recklessly causing injury, assault in company and behaving in an offensive manner in a public place. You were released without conviction on a Community Based Order for 12 months and required to undergo assessment and treatment for alcohol or drug addiction, medical, psychological and psychiatric assessment and treatment and to undergo programs to reduce re-offending, such as anger management and the cognitive skills program, in addition to community work. You breached that order and appeared at the Dandenong Magistrates’ Court in April 2009 where you were convicted and fined. You also appeared at the Dandenong Magistrates’ Court in January 2009 for a charge of unlawful assault and wilful damage which occurred in 2008. You were released on an adjourned undertaking to be of good behaviour for six months. The assault and recklessly cause injury charges are relevant prior appearances.
Sentencing submissions
33 The prosecution submitted that this is serious offending for which a term of imprisonment was inevitable and, taking into account parity principles, submitted that a range of between 6 and 7 years’ imprisonment for a total effective sentence with a range of between 4 and 5 years’ imprisonment for a non-parole period was appropriate.
34 Your Counsel highlighted your dysfunctional family background involving your father and sister who both suffer from mental health issues; your youth, extended family support, delay, drug rehabilitation, work history, negative influence of Sean Kurukchi, limited criminal history and recent depression. He relied on the evidence of your mother , sister, two of your maternal uncles and the evidence of Joseph Lamberti for the proposition that you have rehabilitated and are deserving of mercy for the imposition of a Community Correction Order or a wholly suspended sentence of imprisonment. He also relied upon your statement provided to the police after you were interviewed for the proposition that you volunteered further information which is indicative of rehabilitation.
35 Your Counsel made further submissions in favour of a Community Correction Order and tendered a lengthy paper summarising authorities and arguments in favour of a non-custodial disposition.
36 I do not propose to summarise all of the arguments and authorities referred to in that paper. In essence, however, it submitted that where an offender has undertaken real and positive rehabilitative steps prior to sentence and the evidence does not indicate a need to protect society from the offender, the punitive and deterrent aspects of the sentencing process should not operate so as to destroy the results of rehabilitation already achieved. The paper submitted that in these cases, the community is best served and protected through a sentencing disposition that allows the rehabilitative process to continue in a non-custodial setting, and that leniency in sentencing at this critical stage of an offender’s life might lead to their reform.
37 It was also argued that the significant consequences for an offender who breaches a non-custodial disposition (which may include terms of imprisonment) act to safeguard the community against any future recidivism. It also briefly referred to the relevance of delay, the plea of guilty, mercy and, in exceptional circumstances, family hardship as mitigating factors in the sentencing process.
38 A number of authorities were cited which your Counsel relied upon in support of these propositions including Griffiths v The Queen (1997) 51 ALJR 749, Williscroft v Queen [1975] VR 292, R v John Richard Bell (1981) 5 A Crim R 347, R v Sonny Eleazar Molina (1984) 13 A Crim R 76 and DPP v Roe [2005] VSCA 178.
39 I also note that the paper addressed the circumstances in which a Court should exercise its discretion to order suspended sentences and bonds under s.13 of the now repealed Alcoholics and Drug-Dependent Persons Act 1968. Some of the authorities referred to in this regard pre-date the current sentencing regime under the Sentencing Act 1991, and the paper does not correctly restate the current form of s.27(2B) of that Act which in this case prohibits a suspended sentence on the charge of aggravated burglary.
Further sentencing considerations
40 The maximum penalty of 25 years’ imprisonment for the offence of aggravated burglary and 10 years’ imprisonment in each case for the offences of intentionally causing injury and false imprisonment reflect the seriousness of these offences as determined by Parliament.
41 The purposes for which a court may impose sentence are: punishment to an extent and in a manner which is just in all the circumstances; deterrence, both specific and general; rehabilitation; denunciation and/or protection of the community.
42 In sentencing you I must have regard to a range of matters such as the seriousness of the offences, your culpability, your personal circumstances and those of the victims. This is unprovoked offending in the course of one day involving random attacks on numerous victims in the company of other offenders. Principles of general deterrence, denunciation, protection of the community and specific deterrence are relevant for this offending. The community is entitled to be protected from unprovoked, violent attacks in public places and in the home. The attack upon Mr Kurt in company is serious, both because of the extent of his injury and the circumstances of you and Mr Kurukchi returning to confront him after the police had left, when he had already been confronted by you during the aggravated burglary earlier. He was not injured during the first confrontation but your return and assault on him has overtones of retribution and would have compounded the impact of the aggravated burglary.
43 False imprisonment is an offence where there is a great variation in range of seriousness and I regard this example as being at the low end of seriousness, taking into account the context that the victim was provided with a shower and clothing and ultimately released after a period of about eight hours during which he was not assaulted. There was no issue taken by the prosecution with your Counsel’s assertion that you also provided him with some money before he was released. There would appear to have been no plan in relation to the false imprisonment and the reason for your involvement, as distinct from that of Mr Kurukchi, remains unclear.
44
I regard the circumstances of the aggravated burglary as reasonably serious given that you were in company with three other males who forced their way into the property where three people were sleeping at 6.30 am. The attacks which occurred in the house involved a pot used as a weapon but I note that there is no evidence of you entering the property armed. The attack on
Mr Mackay would have been frightening in the circumstances of the smashing of the glass sliding door of the bungalow before he was assaulted.
45
Your role in relation to the victims of Charges 1, 2 and 8 is significant and you directly physically attacked each victim. Fortunately the injury suffered by
Mr Greenwood at Hungry Jacks was at the low end for the offence of intentionally causing injury, amounting to bruising and soreness which I propose to reflect in the sentence. However you directly inflicted the injury to the first victim at Hungry Jacks and I regard this injury of a fractured right eye socket as at the high end for a charge of intentionally causing injury. I also regard as aggravating, the use of the caulking gun to inflict injury to Mr Kurt’s face when you attacked him with Mr Kurukchi.
46 There is utility in your plea of guilty entered on 15 June 2012, which is deserving of a sentencing discount. This has avoided the need for contested committal proceedings for the charges which occurred at Hungry Jacks and a trial for all charges which has saved the community the cost and the witnesses the inconvenience of attending court to give evidence. The more serious the crime, the greater the weight to be given to a plea of guilty.
Parity
47 On 14 May this year I sentenced your co-offender, Sean Kurukchi to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment. The sentence imposed on Mr Kurukchi must be taken into account for the sentencing principle of parity and due allowance must be made for differences between co-offenders.[7]
[7]Postiglione v R (1997) 189 CLR 295,301
48
The application of the principle of parity with the sentence imposed on
Mr Kurukchi is complicated by the nature and number of charges for which he was sentenced. Mr Kurukchi was sentenced on a charge of recklessly causing serious injury to Mr MacPherson, whereas you have been charged with intentionally causing injury to the same victim on the basis of acting in concert. Your culpability is less for that offence, however Mr Kurukchi’s charges in respect of the other victims were less serious because they were charges of recklessly causing injury whereas you are to be sentenced for intentionally causing injury. Mr Kurukchi was also sentenced for kidnapping, which is a more serious offence than your charge of false imprisonment. Your culpability and role was less in respect of the detention of Mr Mackay. Mr Kurukchi was also sentenced for additional offending concerning drug trafficking and possession of an explosive substance, unrelated to you, and this must be considered for the totality of his sentence.
49 Mr Kurukchi’s role and personal circumstances are distinguishable because his prior criminal history was more significant and at the time of the offending he was nine years your senior. He was sentenced for different charges and additional charges which I have just outlined.
Youth
50 Your relative youth at the time of the offending is a factor which I take into account in mitigation having regard to the principles which apply to youthful offenders.
51 The courts have recognised that there is a vital community interest in rehabilitation of young offenders. There is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.[8] In the case of Azzopardi[9], Redlich AJ, outlined the sentencing principles concerning youth which reflect the fact that they are immature, lacking a degree of insight, judgement and self-control possessed by an adult. In that case all of the applicants were aged 19 at the time of the offending. He referred to the potential for young offenders to be rehabilitated because their mental and emotional stage of development may be more open to positive behaviour change than adults who have established patterns of anti-social behaviour and the fact that incarceration in an adult prison will more likely impair rather than improve the offender’s prospects of successful rehabilitation.[10]
[8]DPP v Malikovski [2010] VSCA 130 at [50] and [51] per Maxwell P; R v Mills [1998] 4 VR 235 at 18.
[9]Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372.
[10]Ibid [34] – [36].
52 However, he also referred to a corresponding reduction in the mitigating effects of the offender's youth as the level of seriousness of the criminality increases.[11] I have kept these principles in mind, noting that you were a youthful offender at 23 rather than a “young offender” for the purposes of the Sentencing Act 1991.
[11]Ibid [44].
53
The prosecution range was unsupported in submissions and in my view is too high having regard to principles of parity, principles of rehabilitation of youthful offenders, totality, your prospects of rehabilitation and the guilty plea.[12]
Mr Kurukchi’s role and personal circumstances are distinguishable.
[12]Sentencing Snapshot No. 124 (June 2012) – Aggravated Burglary; Sentencing Snapshot No. 128 (June 2012) – Intentionally Causing Injury.
54 I do not accept your Counsel’s submission for the imposition of a Community Correction Order or suspended imprisonment term because of the number of victims and the injuries sustained and your criminal history. In June 2008 you were given an opportunity to complete rehabilitative programs for drug and alcohol addiction for charges involving violence. You did not comply with that order.
55 The charge of aggravated burglary is also a "significant offence” for the purposes of s.27(2B) of the Sentencing Act 1991 which means a suspended term of imprisonment is not available for that charge.
56 Your Counsel called your sister to give evidence about threats made against your family by a person known as TJ. Your Counsel also relied on the evidence of your sister and mother about the dysfunction within your family because of your father’s mental state and alcoholism. There was a submission made that there was turmoil within your family because of fear about serious threats made by TJ, but the subsequent statement that you made to the police does not support this proposition that you were in fear of TJ. That statement is very confused and suggests that TJ was in fact at the house after the aggravated burglary occurred assisting you to assault Mehmet Kurt. I accept the evidence of your uncle that the family were in some fear of “TJ” but I am unable to make any finding as to the relevance of this alleged fear to the offending for the purposes of sentencing.
57 I accept that your alcohol and drug abuse contributed to the offending and that since being released on bail, you successfully completed the Court Integrated Services Program.[13]
[13]Exhibit 4 dated 21 November 2011 and 16 September 2011/
58 I accept the evidence of Mr Lamberti, your uncles, your mother and sister about your efforts towards rehabilitation and the steps you have taken to address your drug use since your arrest pending the plea hearing. I have taken into account the comments made by the Court of Appeal about the relevance of drug addiction to moral culpability and rehabilitation in the case of R v Koumis.[14] I have concluded, in assessing your long-term prospects of rehabilitation, that your conduct between arrest and plea hearing is a foundation for optimism and demonstrates your commitment towards rehabilitation. I accept that you have good prospects of rehabilitation with the support of your family and your work ethic.
[14][2008] VSCA 84 at [53]-[59].
59 I accept the prosecution submission that the statement you provided to police subsequent to your interview was not necessarily frank or of any assistance to police, but I accept that you made some concessions which indicated remorse in your interview with police. I also accept your uncle’s evidence that you have had regrets. Clinical psychologist, Dr. Michael King[15] conducted an interview with you in custody and described you as a young man of "entirely normal intelligence", "profoundly distressed in hindsight, at the activities he has witnessed and been party to”. I am satisfied on the balance of probabilities that you are remorseful.
[15]Exhibit 2 dated 28 June 2011/
60 I have taken into account the rehabilitation which you have embarked upon whilst on bail, your compliance with strict bail conditions and the delay as mitigating factors. Delay has been recognised as a powerful mitigatory factor[16]. You have had to manage the anxiety and stress for 18 months pending your plea which is significant for a youthful offender.
[16]R v Merrett, Piggott and Ferrari [2007] VSCA 1 [35].
61 Despite the mitigating factors, the impact of your offending upon the victims was serious and warrants an emphasis on both general and specific deterrence. I have come to the conclusion that no other sentencing disposition is appropriate other than a term of imprisonment to be served.
62 For completeness, so far as your carer role for your father is concerned, I indicate that I am not satisfied that the exceptional circumstances test required for family hardship is met in your case. However, I have taken into account in mitigation that this will be your first term of imprisonment, and that you will suffer inevitable hardship as a result of the repercussions for your family which will be onerous having regard to the mental health issues of your father and sister.
63 I have taken into account principles of proportionality and totality moderating the individual sentences and cumulation because of the number of charges to avoid a disproportionate sentence.[17] This reflects the overlap between some offences. I have also taken into account that you were acting in concert for some of the offences and were not the principal offender, in particular for the injury caused to Mr MacPherson.
[17]Mills v R (1968) 166 CLR 59 at 63; DPP v Grabovac [1998] 1 VR 664, 680 per Ormiston JA.
Sentence
64 On Charge 1, intentionally causing injury, you are convicted and sentenced to 2 years’ imprisonment
65 On Charge 2, intentionally causing injury, you are convicted and sentenced to 4 months’ imprisonment.
66 On Charge 3, intentionally causing injury, you are convicted and sentenced to 18 months’ imprisonment.
67 On Charge 4, aggravated burglary, you are convicted and sentenced to 2 years’ and 6 months’ imprisonment, which I nominate as the base sentence.
68 On Charge 5, intentionally causing injury, you are convicted and sentenced to 9 months’ imprisonment.
69 On Charge 6, intentionally causing injury, you are convicted and sentenced to 6 months’ imprisonment.
70 On Charge 7, false imprisonment, you are convicted and sentenced to 4 months’ imprisonment.
71 On Charge 8, intentionally causing injury, you are convicted and sentenced to 2 years’ imprisonment.
72 I make the following orders for cumulation:
· 6 months of the sentence imposed on each of Charges 1 and 8;
· 3 months of the sentence imposed on Charge 3;
· 2 months of the sentence imposed on each of Charges 5 and 6;
· 1 month of the sentence imposed on Charge 7;
be served cumulatively on each other and on the sentence imposed on Charge 4.
73 I have made orders for cumulation reflecting separate victims and the seriousness of the individual charges but have made no cumulation for Charge 2 to take account of the low level of injury (bruising and soreness) and principles of totality.
74 That makes a total effective sentence of 4 years’ and 2 months’ imprisonment to be served.
75 Taking into account your youth, the fact that this is your first term of imprisonment, your good prospects of rehabilitation and remorse I direct that you serve a period of 2 years’ imprisonment before being eligible for parole.
Pre-sentence detention
76 I declare that 20 days pre-sentence detention be reckoned as already served on this Sentence, and that such declaration be entered into the records of the court.[18]
[18]Sentencing Act 1991, s18
Section 6AAA Sentencing Act 1991
77
Where I impose a less severe sentence than I would otherwise impose because of the plea of guilty, I must state the sentence, if any, that I would have imposed but for the plea of guilty. Accordingly, I indicate that if it were not for the plea of guilty, I would have convicted and sentenced you,
Mr Anthopoulos, to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment. So, I have taken into account the plea of guilty and the sentence has been reduced.
Ancillary orders
Retention of sample order
78 The prosecution have made application for the forensic sample that you have given to be retained.[19] That order is not opposed by you and I am satisfied that in all the circumstances the making of the order is justified. I order that the forensic sample be retained. I make that order having regard to the seriousness of the circumstances of the offending, the fact that the application is not opposed and consider that the granting of the order is in the public interest.
[19]s.464ZFB(1) Crimes Act 1958.
79 HER HONOUR: No questions about any of that?
80 MS RICHTER: No, Your Honour.
81 HER HONOUR: All right, thank you.
- - -
APPENDIX 1
PROSECUTION OPENING
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
IN ITS CRIMINAL JURISDICTION
Court Reference: CR-12-00611 & CR-12-00421
IN THE MATTER OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
V
PAUL ANTHOPOULOS
_________________________________________________________________________
Date of Filing: 14 November 2012
Filed on behalf of: The Director of Public Prosecutions
Prepared by:
Campbell Thomson Barrister
Instructed by: Katrina Richter
Craig Hyland Telephone: 9603 7666
Solicitor for Public
Prosecutions
565 Lonsdale Street Fax: 9602 3729
Melbourne VIC 3000
_________________________________________________________________________
AMENDED SUMMARY OF PROSECUTION OPENING
Introduction
1. Paul Anthopoulos had spent the early hours of Sunday 22 May 2011 at the Crown Casino with Sean and Ron Kurukchi. Sean drove Ron and Paul to the Hungry Jacks on Kings Way, South Melbourne in his blue Holden sedan NSS911 at about 0525 hours. They purchased some takeaway food. The Hungry Jacks outlet adjoins the United Service Station.
2. Jean-Paul McAllan, Michelle Mai, and Ray Balisoro were sitting in McAllan’s Toyota in front of the Service Station, having also purchased some food from Hungry Jacks.
Assault on McAIlan
3. Anthopoulos went up McAlIan’s car and said What are you looking at? McAllan put up his hands and shook his head. Anthopoulos then said Come on then, you fucking gook. McAlIan said I’m just eating man. I’m not looking at anything.
4. After Anthopoulos and Sean Kurukchi made gestures motioning for Mai to join them, Anthopoulos opened McAllan’s car door and Sean Kurukchi reached in and took the ignition keys.
5. Anthopoulos and Sean Kurukchi told McAllan to get out of the car and fight. McAllan said he didn’t want any problems. The two men taunted McAllan about Mai, asked to use his phone, and continued pressing him to get out of the car.
6. Sean Kurukchi threw the car keys at McAllan and then Anthopoulos punched McAllan hard to the right eye. Sean and Paul slammed the car door and started joking about what had happened. Sean and Anthopoulos asked Mai to join them. Ron Kurukchi intervened and Paul and Sean eventually went back to Sean’s car.
7. Mai rang 000. McAllan vomited. Police and an ambulance arrived later but were dealing with another incident so McAllan and his friends left in a cab because McAllan felt too sick to drive. They went to Ray’s house in St Kilda. At around 1430 hours McAllan went to the Monash Medical Centre where a scan revealed he had a fractured right eye socket (Count 1: Intentionally Cause Injury).
8. After the assault on McAllan, Sean Kurukchi was driving out of the Service Station where Luke McPherson and Matt Greenwood were sitting on the nature strip.
Assaults on McPherson and Greenwood
9. McPherson and Greenwood were eating burgers after a night out. Sean Kurukchi yelled something at them and McPherson said something like Good on you mate. Sean replied What cunt?
10. Sean Kurukchi and Paul Anthopoulos got out of the car and ran towards McPherson and Greenwood. Sean Kurukchi kicked McPherson to the face with a full force round house kick and knocked him unconscious. McPherson suffered unconsciousness, a broken nose, a split lip and bruising to his face (Count 3: Intentionally Cause Injury on the basis of acting in concert).
11. Anthopoulos punched Greenwood to the face while Greenwood was on the ground. Greenwood jumped up and he and Anthopoulos scuffled. Anthopoulos hit Greenwood several times to the face causing bruising and soreness (Count 2: Intentionally Cause Injury). Both Greenwood and McPherson were later taken to Royal Melbourne Hospital by ambulance.
12. Sean, his brother Ron, and Paul Anthopoulos drove away from the scene.
Aggravated Burglary
13. At about 0630 hours on Sunday 22 May 2011, Paul Anthopoulos, Sean Kurukchi, his brother Ron Kurukchi, and an unknown male forced their way into 5 Chandler Road, Noble Park. There were three people sleeping in the house and one person sleeping in the bungalow outside. Mehmet Kurt was on a couch in the living room. Chad Walker and his girlfriend Rachel Green were in a bedroom near the front of the house. Paul Mackay was in the bungalow. The four men confronted Kurt and said they were looking for “TJ” (Tunjay Sahlih) who owed them $5000. (Charge 4 Aggravated Burglary)
Intentionally Cause Injury to Walker
14. The intruders then forced their way in Walker’s room. Walker had barricaded the door with a couch. The intruders yelled at Walker about TJ and the money he owed. Walker said he knew nothing about it. One of the four men hit Walker over the head with a pot, knocking him to the ground and cutting him over the right eye. This laceration was later sutured at the Dandenong Hospital after examination by Dr Clowry (Deps P. 416). (Charge 5 Intentionally Cause Injury on the basis of acting in concert)
Intentionally Cause injury to Mackay
15. The four intruders then left the house and broke into the bungalow by smashing a glass sliding door. Mackay just had time to put on some clothes when the men confronted him and said he owed them money. One of the men hit Mackay on the head with a pot and another hit Mackay with a broom handle. Mackay was bleeding from the left temple and had pain in his back when he escaped and ran away up Chandler Road towards Heatherton Road. Mackay suffered bruising to the forehead and left eye and abrasions to the left cheek, elbows and knees. See Deps Ps. 552-554. (Charge 6 Intentionally Cause Injury to Mackay on the basis of acting in concert)
False imprisonment
16.Mackay was taken to 4/72 Callander Road, the address of Sean Kurukchi, where Mackay was permitted to shower and given fresh clothing.
17.At about 1130 hours, Sean and Ron Kurukchi and Paul Anthopoulos drove Mackay to the premises of the Kurukchi family finance company at 1272 Heatherton Road, Noble Park, in the black Holden Astra of Liz Anthopoulos.
18.Mackay was later driven hack to 5 Chandler Road by Sean Kurukchi and Paul Anthopoulos in the Astra. Police were in attendance at the house. Paul and Sean told Mackay not to make a statement to police. Anthopoulos said his father was a lawyer and that if Mackay made a statement they would be able to use it in some way. Mackay was then driven back to the Callander Rd address and eventually released.
19.Mackay went to Dandenong and bought some food and a jumper and then walked to the city where he slept in an abandoned car.
Intentionally Cause Injury to Kurt
20. The police left 5 Chandler Road, Noble Park at about 5pm, after investigating another unrelated Aggravated Burglary. Sean Kurukchi and Paul Anthopoulos returned to the house and remonstrated with Kurt about going to the police. They punched and kicked Kurt to the ground. Anthopoulos struck Kurt to the head with a caulking gun, injuring his left orbital wall, left mastoid and left mandibular ramus. Kurt was admitted to Dandenong hospital where he was treated for multiple bruising on his forehead and around his right eye, localized swelling on his left forehead, and tenderness to the left mandible (Deps Ps. 532-540). Kurt was released from hospital on 24 May 2011. (Charge 8 Intentionally Cause Injury to Kurt)
Arrest
21. Anthopoulos was arrested on 24 June 2011, remanded into custody and released on bail on 28 June 2011 (four days PSD).
22.Police interviewed Anthopoulos and he admitted punching McAllan because he was drunk and high (Qs.106, 134, 248-250). Anthopoulos said he saw Sean kick McPherson and that he had a little confrontation with Greenwood and hit him (Qs 165,183). Anthopoulos denied entering 5 Chandler Rd (Q 312). He said he saw Mackay run out of the bungalow and get hit by a car (Qs 367- 383). He said he went to Sean’s house with Ron in another car (Qs 400-407). He said he gave Mackay some money because he was sorry for him (Q. 415). He said he did not remember going to Sean’s office but possibly did (Qs. 444-446, 459). He denied talking to Mackay about not going to police (Qs 647-650).
23.Aggravated Burglary is level 2 offence (maximum 25 years imprisonment). Intentionally Cause Injury is a level 5 offence (maximum 10 years imprisonment). False Imprisonment is a level 5 offence (maximum 10 years imprisonment).
24. Anthopoulos has relevant prior convictions.
25. McPherson has made a victim impact statement.
Campbell Thomson
Prosecutor
14 November 2012