Director of Public Prosecutions v Herodotou
[2017] VSC 178
•12 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0030
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELIAS HERODOTOU |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19-29 September, 3-7, 10-11 October, 8 December 2016 and |
DATE OF SENTENCE: | 12 April 2017 |
CASE MAY BE CITED AS: | DPP v Herodotou |
MEDIUM NEUTRAL CITATION: | [2017] VSC 178 - First Revision 11 August 2017 |
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CRIMINAL LAW – Sentence – Murder – Stabbing with knife – Spontaneous fight – Excessive self-defence – Prior convictions for violence – Offending whilst on bail and community correction orders – Mixed prospects of rehabilitation – No remorse – Sentenced to a term of imprisonment of 22 years with a non-parole period of 18 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F Dalziel | Solicitor for Public Prosecutions |
| For the Offender | Mr P Morrissey SC | Christopher James Lawyers |
HER HONOUR:
You have been found guilty by a jury of the murder of Darren Webb in the early hours of Sunday, 5 July 2015.
On the afternoon of Friday 3 July, you spent time at the flat of your friend, Jayde McIntosh. You took with you another friend, Blaze Williams. You introduced the two women, and the three of you spent several hours consuming alcohol, ice and GHB.
On the Friday evening you left the flat, leaving Ms Williams asleep. Later that evening, Mr Webb arrived to visit Ms McIntosh, who was an old friend of his. Mr Webb and Ms McIntosh used drugs together, before he spent the night on the couch.
On the Saturday morning, Ms McIntosh introduced Mr Webb to Ms Williams. They spent the morning getting to know each other. It became apparent that Mr Webb was attracted to Ms Williams.
Mr Webb and Ms Williams left together that afternoon, to go buy some ice. They then went to the Crown Casino, arriving just after 3.00 pm. They spent some time playing pokies, after which Ms Williams went shopping while Mr Webb checked in to the Crown Metropol Hotel.
Ms Williams and Mr Webb then spent a few hours in his hotel room, drinking, smoking ice, and engaging in some preliminary sexual activity. After speaking to Ms McIntosh, they decided to drive back to her flat, collect her and bring her back to the hotel. On the way to the flat, they stopped so Ms Williams could buy some GHB.
You had spent the Saturday afternoon with another friend, Cristina Presti. The two of you used ice together that afternoon.
Mr Webb and Ms Williams arrived back at the flat, just before 8.30 pm. Ms McIntosh and Ms Williams spent some time getting ready to go out. You arrived around 9.30 pm. A couple of other friends were at the flat too.
That seems to have been the first time that you and Mr Webb had met, although you had heard of him before through mutual friends. You believed that Mr Webb disliked you, because you had heard that a girl known to you both had told Mr Webb that you had raped her. There is nothing to suggest that the rape allegation was true, or that Mr Webb ever believed it to be. However, even before you met Mr Webb, you believed he bore some animosity towards you; you carried a grievance about that throughout the evening.
You entered Ms McIntosh’s bedroom, where she and Ms Williams were trying on clothes. Ms McIntosh left the room, and you and Ms Williams had sex, with the door to the bedroom partly open. Mr Webb and the others in the flat could hear what you and Ms Williams were doing, and some could see you as well.
Mr Webb became increasingly agitated and upset. He took a pair of scissors from the flat, and put them down the back of his pants. He told Ms McIntosh he wanted to cut your penis off. Ms McIntosh tried to calm him down, and told him not get so upset over a girl. You did not witness this conversation, and there is no evidence that you were aware at any stage that Mr Webb had armed himself with the scissors. But Mr Webb was clearly upset that you were having sex with someone to whom he was attracted.
Around 10.45 pm, you, Ms McIntosh, Ms Williams and another male friend left the flat and got into Mr Webb’s car. After dropping off the male friend, Mr Webb asked where you would like to be dropped off. Ms Williams said that if you were not coming to the hotel, then she would not be going either. Mr Webb said he did not care if Ms Williams was coming or not; he turned the car around and started driving back towards Ms McIntosh’s flat.
In the car you brought up the topic of the rape allegation, asking Mr Webb why he would believe it, and saying that it was not true. Mr Webb told you that he did not believe the rape allegation.
When you were almost back at the flat, Ms Williams remembered that she had left some of her belongings in the hotel room. Mr Webb turned the car around again and began driving back towards the hotel.
On the way there, Mr Webb made a brief stop at a service station around 11.00 pm. Whilst he was out of the car, Ms Williams leaned over and pocketed the hotel key card, which was sitting on the front seat; she was just mucking around, and did it as a joke.
During the journey, you and Ms Williams were kissing and fondling in the back of Mr Webb’s car. Mr Webb asked you to stop, and you both did so.
When Mr Webb parked in the casino’s underground car park at around 11.30 pm, he walked off on his own unexpectedly, leaving you, Ms Williams and Ms McIntosh sitting in his unlocked car.
The three of you sat in the car for quite a long time, waiting to see if Mr Webb was coming back. Ms McIntosh was unsuccessful in her repeated attempts to contact Mr Webb by phone. At some stage, Ms Williams recalled that she had the hotel room key, so you and Ms Williams went up to Mr Webb’s hotel room. You entered the room around 12.30 am. Ms McIntosh eventually gave up waiting in the car, and went home.
You and Ms Williams partied in the room. You had sex, took some GHB, and opened up the safe where Mr Webb had put his ice. At around 1.00 am you ordered room service, charging it to Mr Webb.
In the meantime, Mr Webb had been wandering around the casino. When he realised he did not have his room key card, he went to reception and got a replacement card.
Around 2.00 am, Mr Webb entered the room. When he did so, he was understandably angry. He found you and Ms Williams naked in his hotel room, which was in a state of disarray, and enjoying room service. He also noticed that his drugs had been removed from the hotel safe. Although Mr Webb was yelling at you and Ms Williams, he did not threaten or initiate any violence.
You began to yell back at Mr Webb. You brought up the rape allegation again, in an angry tone. You then started a physical fight, by punching Mr Webb at least twice, near the front door.
In response to your attack, Mr Webb managed to land a couple of blows on you, causing a black eye and splitting your lip. The two of you started wrestling and jostling, and moving each other backwards and forwards in the room. The fight moved from near the room entrance, to the foot of the bed, and then back and forth between those two areas. At one stage, Ms Williams tried to break up the fight, by hitting Mr Webb with her open hand and grabbing onto his jumper.
At some point in the fight you and Mr Webb moved past the bar fridge area again. Your pocket knife was lying there, with the blade opened; it had been left there after it had been used earlier that night to cut up some ice. Your unchallenged evidence was that you noticed that Mr Webb was reaching towards the knife, so you reached out and grabbed it first.
Thereafter, you inflicted more than a dozen injuries to Mr Webb with the knife. Some of them were relatively shallow or superficial, but several of them, including the fatal wound, were deeper. Mr Webb’s right eye was bruised and he had an incised wound below that eye. He had a superficial incised wound across his forehead, a bruised and fractured nose, lacerations on the insides of his lips, and subcutaneous bruising under his scalp. The more serious injuries included incised or stab wounds to the right collarbone, the left thigh and the left shin, in each of which the knife had penetrated for several centimetres.
The fatal wound was to the left side of Mr Webb’s neck. It penetrated for about six centimetres, and pierced Mr Webb’s carotid artery. Given that the knife only passed through soft structures in the neck, it would not have required a large degree of force to inflict that injury.
Ms Williams only saw the knife very briefly, towards the end of the fight. Because you and Mr Webb were hunched over and struggling, she could not see much of what happened with the knife. She was also seriously affected by drugs, particularly by the GHB, which had made her “blow out” and have trouble standing only a short time before.
At no stage during the fight did Mr Webb have control of the knife, or manage to inflict any incised injuries on you. Nor did he have any other weapon on him, having left the pair of scissors in the car. The two of you were fairly similar in height and build. In so far as he may, at some stage, have had one of his hands on your knife-holding hand, or a hand around your throat, it is likely he was doing so to try to defend himself from your stabbing motions. Many of his injuries may not have been bleeding much during the struggle, so the extent to which your stabbing motions had made actual contact may not have been visible at the time. However, given the number and completely one-sided nature of the knife injuries, it is not surprising that the jury rejected your claims that Mr Webb was winning the fight, or that you were not acting deliberately when you stabbed him.
The fight ended when Mr Webb moved towards the door and sat in an alcove near the entrance. By this stage, he had cuts on his face and was beginning to bleed more profusely from his neck injury. He appeared to be choking.
Ms Williams said someone should call for an ambulance. You made no effort to help her find a phone. You replied “Fuck him, he’ll be alright, I know first aid,” and told her not to call an ambulance. She tried to use the phones in the hotel room, but the cords had been cut by you. She asked to use your phone, but you refused to give it to her. Eventually, you passed her Mr Webb’s phone, and she tried to call 000 on that phone. At some stage, you also started to call 000 on your own phone, but you panicked and hung up before asking for help.
You got dressed and told Ms Williams to do the same. She stood there, hysterical, and screaming that Mr Webb looked like he was going to die. You went over to Mr Webb and lifted his head, at which point the seriousness of the neck wound must have been clearly visible. At some stage, you passed him a towel and gave him some water to drink.
Ms Williams put on a dressing gown, and ran downstairs to the lobby to get help. By the time ambulance officers arrived a short time later, Mr Webb was pronounced dead.
You left Mr Webb either dead or dying in the hotel room. You left the room around the same time as Ms Williams, went downstairs and took a taxi to a friend’s house.
Over the next few days, you stayed with various friends, continuing with your drug-taking, partying lifestyle. You gave your friends several different accounts as to what had happened. You changed your hair colour. You lied to police concerning your identity, when they first spoke to you. You were finally arrested on 10 July 2015.
I accept that you may well have fled the hotel that night in a panic. You were on bail at the time (as well as on two community correction orders), and may have panicked at the thought of having offended further in those circumstances. But your subsequent conduct until you were arrested five days later is consistent with the immature, irresponsible, self-centred lifestyle that you have lived for most of your adult life. Even now, there is no evidence that you are genuinely remorseful, or have accepted responsibility for what you did – you continue to blame Mr Webb for what occurred.
Although the prosecution case was put on the basis that you either intended to, or knew that your act would probably, kill or cause really serious injury to Mr Webb, it is not clear from the verdict on which of those bases the jury convicted you. In some cases, it may be important for the sentencing judge to make a specific finding as to intentional or reckless murder, but it was not suggested by either counsel that this was such a case. Rather, your moral culpability is to be determined by the nature of the killing, including your conduct, rather than the particular intent with which the conduct was carried out.
Mr Webb’s annoyance, upon discovering you had been using his hotel room to party and had taken his drugs, did not justify you punching him. You started the physical fight without any good reason for doing so. It is not suggested that you had any murderous intention when the fight started. Mr Webb eventually punched you back a few times. He was at all times unarmed. The knife was introduced into the fight spontaneously and unexpectedly. However, your respective injuries confirm that, from the moment when you grabbed the knife, it was you and not Mr Webb who was in effective control of the knife.
You had undoubtedly used ice that afternoon with Ms Presti. You and Ms Williams had used GHB in the hotel room. She said you had both smoked ice in the hotel room as well, but you denied that; nothing much turns on that particular difference. The drugs you had consumed may well have affected your perception and judgment, but both counsel agree that it is neither a mitigating nor aggravating matter here.
Although the jury clearly rejected your claim that you killed Mr Webb in self-defence, it is not clear on what basis they did so. It is entirely possible that the jury rejected your claim of self-defence outright, and were satisfied beyond reasonable doubt that you did not believe you were facing a threat of death or really serious injury at the time you inflicted the neck wound to Mr Webb. However, I am not satisfied of that matter beyond reasonable doubt for the purposes of sentencing you. Accordingly, I will sentence you on the basis that your response was not a reasonable response to the threat you believed you faced.
Your conduct after you stabbed Mr Webb was almost entirely concerned with looking after yourself.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others. Victim impact statements were filed by Mr Webb’s mother, sister, aunt and uncle.
Mr Webb’s father died when he and his sister were children; it was Mr Webb who walked his sister down the aisle at her wedding. Mr Webb was also a carer for his mother, who had a leg amputated some years ago, and is in a wheelchair following a car accident.
Mr Webb’s family miss him dearly, particularly his dry sense of humour and his laughter. Mr Webb enjoyed fishing and camping, and spending weekends away at a friend’s farm near the beach.
Mr Webb’s family are traumatised by images of what he endured in the period before his death, and deeply saddened by the thought that he died alone in the hotel room. They have had many sleepless nights, suffered anxiety, and struggle with trying to find a way to protect his nieces and nephews from the tragic details of his death.
Given the extent of his injuries, his family were advised not to view Mr Webb before his funeral. They were not able to say goodbye to him one last time.
I turn to consider your personal circumstances. You were born in June 1987, and are now almost 30 years old. You were 28 at the time of the offending.
You were born in Australia, but spent the first eight years of your life living in Cyprus. You were raised primarily by your maternal grandparents. Your mother continued to live in Cyprus for some time after you returned to Australia. Thereafter, she lived with you intermittently. Your parents separated when you were four years old, and your father has been absent from your life since then. Your mother subsequently re-partnered and has a daughter from that relationship.
You began using drugs from the age of 14, beginning with cannabis. You have also regularly abused ice, speed, ecstasy and GHB. You have been a binge drinker since you were about 18. Although it seems that there may have been a period of some years when you were not abusing substances, you had relapsed by the time you were around 24 or 25.
Your schooling was unremarkable. You left school during year 12, at the age of 17. You began a carpentry apprenticeship, but could not continue due to your drug and alcohol abuse. Since then, you have worked intermittently in various hospitality and retail roles.
On New Year’s Eve 2007, you fell off a second story building while under the influence of ecstasy and alcohol. You were in hospital for five days. You suffered an acquired brain injury, which has resulted in mild impairment of some of your executive functioning skills. However, there is no evidence that the brain injury played any measurable role in the current offending.
Between 2008 and 2010, you experienced your longest period of employment, ending up as a bar manager. This coincided with a period of abstinence from illegal drugs.
Around 2011 or 2012, you had a motor vehicle accident. You received a damages award of $80,000. You spent that money over the course of six months, partying in Thailand, binging on drugs and alcohol.
You have a long history of offending. Many of your convictions are for possessing various illegal drugs. More concerning are your prior convictions for violence, beginning in 2008, when you were 18. They include convictions for intentionally causing injury, assaults, recklessly causing injury, recklessly causing serious injury, and weapons possession.
Until 2015, you had never been sentenced to an immediate term of imprisonment. Some of your earlier sentences appear somewhat lenient for the offences, perhaps because of your relatively young age at the time.
In March 2015, you were sentenced to 192 days (being time served on remand) and an 18 month CCO for various offences, including assault with a weapon, recklessly causing injury, and contravening a family violence intervention order. When you killed Mr Webb, you had only been out of prison for just over three months.
On 17 December 2015, Judge Cohen sentenced you to a total of nine months’ imprisonment for various offences, including false imprisonment, intentionally causing injury, and theft, which occurred in January 2014.[1] After taking into account pre-sentence detention, it is common ground that you completed that sentence on 31 May 2016.[2] It is necessary for me to have regard to that sentence, in considering totality principles.
[1]DPP v Bright & Ors [2015] VCC 1927; you were sentenced under the pseudonym “Julian Floyd”, the same pseudonym as I have chosen to use.
[2]Accordingly, s 16(3C) of the Sentencing Act 1991 does not apply.
At the time of the current offending you were on two sets of bail - one for the matter which Judge Cohen dealt with, the other for a separate County Court matter which is listed for trial in August of this year. You were also on two CCOs at the time - the 18 month CCO imposed in March 2015, and a 12 month CCO imposed in May 2015 for assault and reckless conduct. That you offended again in such circumstances not only shows your complete disregard for the law, but is also a separate aggravating feature.
Although you reported to Sara Fratti (a psychologist who assessed you in late 2015 for the purposes of the plea before Judge Cohen) that you experienced symptoms of anxiety and depression, it seems that no formal diagnosis of such a condition has been made by any mental health professional.
Your current plea was adjourned part-heard, to enable you to be assessed by another psychologist, but no further report was put before the court. In the end, your counsel conceded that no Verdins considerations arise in this case.
Your prospects of rehabilitation are mixed. On the one hand, you still enjoy support from some family members and friends, and there have been instances in the past in which you have abstained from drug and alcohol abuse, and held down a steady job. You have also undertaken a few courses in custody, including a 40 hour substance use program. You have not used drugs since you were taken into custody in July 2015.
On the other hand, you have a long history of offending, including violent offending. You have lived an immature and irresponsible lifestyle, with little regard for the consequences of your actions. You are not genuinely remorseful for killing Mr Webb. You also offended in complete disregard for the conditions of your bail and CCOs.
Substance abuse clearly remains an ongoing issue for you, notwithstanding your current enforced abstinence. Apart from whatever courses and treatment may be available in custody, you will have plenty of time to undertake counselling and address your substance abuse issues during the period in which you will be eligible for parole. Whether or not you will be granted parole will no doubt be affected by your behaviour and attitude in custody.
There is a need for both specific and general deterrence in this case.
For the murder of Darren Webb, I sentence you to 22 years’ imprisonment.
I fix a period of 18 years as the period you must serve before becoming eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 370 days, not including today’s date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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