Director of Public Prosecutions v Konstantinidis
[2012] VCC 1423
•12 September 2012.
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01062
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN KONSTANTINIDIS |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 September 2012. | |
CASE MAY BE CITED AS: | DPP v. Konstantinidis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1423 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Nankin | |
| For the Accused | Ms J Hession |
HER HONOUR:
1 John Konstantinidis, you have pleaded guilty to one charge of causing serious injury. You have also admitted prior convictions. The facts underlying your offending are as follows:
2 At about 9.30 am on Monday 27 February 2012, you went to the Ambassador Hotel at Nepean Highway, Frankston, in company with your co-accused, Deborah Bizzani and two other men. You went to an apartment on the ground floor, where the victim, Russell Janazewski lived and started knocking on the door, yelling out, "Let me in Russell. You fucked up and did the wrong thing, I'm going to kill you." You kicked the door a number of times and Bizzani tried to get in through the front window.
3
Mr Janazewski ran to the bathroom and called police, then cancelled, thinking he would be able to talk to you. He went back to the lounge room and asked if it was possible to sort out the problem without him getting hurt, saying you had the money. He was referring to a drug debt of $100. You told
Mr Janazewski you just wanted to talk to him and promised not to hurt him and Mr Janazewski opened the door. As soon as he did, you punched him in the face three times with a clenched fist, causing him to fall to the ground and then you and Bizzani came into the apartment, you grabbed Mr Janazewski 's left leg while Bizzani kicked him in the head two or three times.
4 Bizzani also kicked Mr Janazewski in the head while he was on the ground and then you knelt down. At that stage, Mr Janazewski saw a Winchester hunting knife, about 25 centimetres long in your hand and you started to cut his left leg. Mr Janazewski turned on his side to reach for an empty bottle to defend himself, at which point you stabbed him in the lower right side of his torso, and also stabbed him in the back. One of the men who came in with you then removed Bizzani from the apartment and you left through the front gate, dropping the knife, which was later recovered by police.
5 Mr Janazewski tried to go to a neighbour's apartment but could not as he was in pain and bleeding and as he lay in the doorway, tried to put a towel on his wounds, called out for other residents to contact an ambulance. His neighbour, Darren Phillips, came to help him, at which point you rang Mr Janazewski saying, "Don't call the cops or I'll kill you and tell Darren he is next."
6 Mr Janazewski was taken to the Alfred Hospital, where he spent six days and required surgery. As a result of the attack, he suffered a minimally displaced fracture of the nasal bone, an associated puncture wound, and an associated puncture wound which required surgical washout. He suffered bruising to the right eye region and forehead, and an abrasion to the right temple area. He received a five centimetre stab wound in the right side of the mid trunk, which is a deep wound, penetrating through the abdominal wall, but which did not damage any internal organs.
7 Open abdominal surgery was required to determine the extent of possible internal injuries and repair of the wound. He also received a five centimetre stab wound, another deep wound to the left shoulder blade, also requiring operative repair. Finally he received a 12 centimetre stab wound to the front of his leg, severing 80 per cent of the underlying quadriceps muscles, which required surgical repair and the insertion of a drain tube for six days. After release from hospital, Mr Janazewski needed counselling with a psychiatrist. He made no victim impact statement but did write a letter in support of you, which I will refer to later in these sentencing remarks.
8 You attended Frankston Police Station on March 6 2012 and conducted a no comment record of interview. You were remanded in custody until March 16 2012, when you were bailed and pleaded guilty to the charge on 25 June at committal mention, that is, you entered a very early plea of guilty. The maximum penalty for causing serious injury intentionally is 20 years.
9 Your co-offender Ms Bizzani was sentenced to an aggregate term of five months imprisonment, wholly suspended for 18 months, for a number of charges heard in the Magistrates' Court, including a charge of threat to kill.
10 I now turn to your personal circumstances. You are 43 years old, the only child of parents who emigrated here from Greece in 1960, you being born here in 1969. Your parents ran a business and you had a happy and unremarkable childhood, where you were much loved by your parents and you remain very close to them to this day. You grew up in the Doncaster area and were educated at Greythorn High School, transferring in your final year to Templestowe Technical School, leaving part way through Year 12.
11 You were apparently an average student, who excelled at sport and who, as a result of some bullying you received because of your Greek background, gravitated to more violent elements in your school as a matter of protection and engaged in some misbehaviour and truancy.
12 On leaving school you undertook a computer control data course for about six months, then in 1984, took up work as a computer operator with the Flag International Motel chain. You worked there until 1990, when you took up employment with an organisation, Rugs Galore, where you worked for about 12 years, rising to the position of manager then state manager. Your employer, Mr Dowson, who gave evidence on the plea, described you as an honest, reliable and hard working employee, who was also a very good salesman.
13 In 2002, you moved to work as a state manager of Carpet Call for six months, then decided to open your own business in a store at Fountain Gate Shopping Centre called Rugs R Us. The business was initially successful.
14 You lived at home with your parents until you were 21 and then in about the year 2000, you and your then fiancée bought a house at Diamond Creek. The relationship broke up after about six months and you bought out your former fiancée's share and lived there for four years. In 2004 you bought a second house at Narre Warren, into which you moved, keeping on the Diamond Creek property, which you ultimately sold in 2006.
15 The business which had begun successfully, eventually ran into trouble as sales declined and overheads, in particular the rental, escalated. Finally in 2009 your business went under and you sold your house and moved back to your parent's home where you have lived ever since.
16 You were introduced to cannabis when you were 15 and in your teenage years, also abused alcohol to some extent, although that is no longer a problem for you. However, you went on to develop a chronic cannabis addiction, becoming a daily user for about 27 years and at its height, from about the age of 30, involving use by you of three to four grams of cannabis a day, which is a very considerable habit.
17 At age 25, you began using heroin and ecstasy on an intermittent social basis. Then in 2008 at the age of 39, when you were encountering difficulties with your business, you were introduced to methylamphetamine or ice which you used to cope with your business pressure, and it would seem, developed somewhat of an addiction to it.
18 You have, what is at first glance, a fairly extensive criminal history, beginning in 1994 with a charge of theft and then a charge of possessing a regulated weapon in 1998. You were fined in both cases and were not able to recall the circumstances of that offending.
19 In 2002 you were placed on a suspended sentence for driving offences and in 2004, were convicted on charges of recklessly causing injury, throwing a missile and intentionally damaging property. Your counsel told me these occurred when you became frustrated and impatient whilst waiting in a line at a bank, and picked up an attachment to a bollard and threw it at a teller, which although you did not intend it actually hit her. You were fined for those offences.
20 You received further suspended sentences for driving offences in 2007 and in the same year, were fined for behaving in an offensive manner in a public place, assaulting police, intentionally destroying property and failing to answer bail. That offending arose after you saw two people try to punch at the window of a car being driven by an older man. You confronted them, they left and returned in a van, the window of which you then punched in, police arrived and you confronted them.
21 In February 2009, you received fines and a suspended sentence for charges of threatening to kill, threatening to damage property, resisting police, stalking, unlawful assault, trafficking in cannabis, possessing ecstasy and possessing prohibited items. This offending arose initially from a dispute by you at a time when your business was under considerable stress. You attended Telstra premises, where you argued over a bill of about $5,000, making threats which were reported to police. Police then raided your home, where they found seven cannabis plants, an ecstasy tablet, cannabis which you had personal use, but which appears to have been of such a quantity that the charge of trafficking was laid, and four prohibited weapons, which were ornamental items such as a Samurai sword, nunchucks, a machete and a black dagger. You told police you collected those items and that they never left the house.
22 You have had some significant medical difficulties in the past few years, in particular, chronic migraine headaches for the past six years, grand mal epilepsy, for which you were diagnosed four years ago, a chronic anxiety disorder, for which you have been treated with Xanax, and hepatitis C. The epilepsy and the hepatitis C conditions are controlled by medication.
23 When on bail you were placed on the CISP program through which you attended on psychiatrist Anthony Cidoni and psychologist Dr Janev. In his report dated 3 April 2012, Dr Cidoni just diagnosed you as having suffered chronic depression or dysthymic disorder for several years, with associated anxiety, that is a long term pattern of depressed mood and associated depressive symptoms that fell short of a major depression. He believed you had cannabis and amphetamine abuse problems and had developed a dependence on your Xanax medication, which you were taking four times a day. In a second report, dated 5 June 2012, Dr Cidoni noted he had prescribed the medication Olanzapine, in order to improve your mood disorder and that you in previous weeks had ceased Xanax use.
24 You also in that time began attending psychologist, Dr Janev and continued to attend upon her, up until extremely recently. In her report, dated 30/12/2012, Dr Janev said you had attended her on a fortnightly basis since April, during which time she had administered cognitive behavioural therapy to reduce your psychological and substance dependence symptoms, as well as anger management strategies. She felt you had progressed well in treatment, and had not re-offended or relapsed back into drug use, which you had discontinued since being released on bail in March. She said you presented as "dedicated and eager to build a life away from drugs and crimes on a consistent basis."
25
I return now to the offending which has brought you before this court. In 2011 you mother suffered a very serious stroke and is largely incapacitated. Your father is elderly and you have assumed the role of carer, primarily for your mother, and are in fact paid a carer's wage. It was noted by both
Dr Janev and Dr Cidoni that you have suffered depression for some years but it appears you were extremely devoted in the care of your mother, although you found this to be ultimately a difficult and socially isolating experience.
26 Apparently in about the month before this offending, you went out for a birthday celebration with Mr Janazewski, where ice was used and you then essentially went on a month long bender, where you returned home only intermittently and indulged in an orgy of ice taking. Your counsel told me you had not slept for three days before this offending and in that previous month had been associating regularly with the victim and in that context the drug debt arose. You were also abusing xanax at the time. I commented during the plea that the courts are seeing far too much of xanax misuse, which seems to result in all sorts of mood and behavioural disturbances.
27 Apparently over the years you have developed a level or paranoia, largely it would seem as a result of your chronic cannabis habit. Before the offending you had an amicable relationship with Mr Janazewski but the situation arose with he and his associates where there was a dispute over a possible relationship between you and one of the female members of that friendship group. Then in that month, eggs were thrown at the window of your parent's home, a rubbish bin was set alight, shots were fired outside the house and on occasion, two car loads of people drove past the house, which you perceived as being part of a campaign of intimidation against you.
28 On the day of the offending, you rang Ms Bizzani and the two other men, (the latter two not being charged with this offending) and who provided statements to police, saying they got a call from you. You sounded upset and agitated and they went for a cup of coffee with you, near where the victim lived. One of the men, Andrew Egan, told police there was a conversation where you talked about people coming around to your house, but no plan of attack was hatched. On the way home you said you wanted to "pop into" the Ambassador Hotel to see someone, but there was no suggestion of inflicting any injury.
29 Your counsel said that once you arrived at Mr Janazewski's apartment, you worked yourself into a rage, made an impulsive decision to attack him, and used a knife that you found at his apartment and picked up, whilst in the throes of that rage. Mr Egan told police he did not see a knife before you entered Mr Janazewski's apartment.
30 Returning to Dr Janev's report, she opined that you were suffering from a substance abuse disorder, relating to cannabis and crystal methylamphetamine and that in her view, substance dependence had underpinned much of your current and past offending behaviours as well as your depression and paranoia. A recent neuropsychological assessment by Dr Lorretta Evans, on April 17 2012, disclosed what Dr Janev describes as "a memory capacity well below age expectation, affecting a number of cognitive skills, particularly bilateral memory skills and his ability to encode and remember new information."
31 Dr Evans attributed these problems to long term cannabis use, to your history of seizure and trauma to the brain, suffered in a six month period when you worked as a security guard. Dr Evans also believed your past aggressive behaviours were best explained by a crystal methylamphetamine intoxication. Dr Janev believed the offending that brought you before this court, was explained by "a combination of substance dependence disorder, dysthymic disorder, paranoia and anxiety symptoms."
32 Importantly, she referred to the principles outlined in Verdins, saying that when you came to therapy, it was clear your psychological disorders had impacted on your mental functioning, making you more vulnerable to error and offending behaviour than people without your diagnoses and symptomatology. She said you were suffering from impaired mental functioning at the time of the offending, which decreased your moral culpability in the areas of ability to exercise judgment, ability to make calm and rational choices and think clearly, the ability to appreciate the wrongfulness of your conduct and the ability to act without disinhibition.
33 She concluded, "In my opinion Mr Konstantinidis's psychological disorders likely contributed to the commission of his offence and obscured his intent to commit the offence." She said you had improved significantly since commencing treatment with her, had been in remission for illicit substances for some time and were reporting improvements in your mood and anxiety, as well as expressing a strong desire to continue treatment beyond your court case. She was very concerned for your mental health, were you to be sentenced to imprisonment, as she believed you had become extremely dependant on your counselling service for treatment and support.
34
Dr Cidone also in both his reports, expressed concerns over your capacity to cope with imprisonment, given your health problems, your psychological problems and your mental health problems. Dr Janev believed you were very capable of living constructively in the community, saying, "I have observed
Mr Konstantinidis draw significant validation and esteem from the opinions of the criminal justice system. He cares about society's perception of him and has worked hard to ensure that he does not re-offend."
35 In addition to the psychological and neuropsychological reports that I received, a raft of references from family and friend were tendered on the plea, in which you were described in general terms as a kind and caring person who is extremely devoted to his family. Further, I received a letter from the victim, Mr Janazewski, in which he described you as a good friend and a great help in time of need. He said you had a good heart, expressed concern over your mother's fragile health and asked that the court not incarcerate you. It was a condition of your bail that you not have contact with him, but Mr Janazewski made a point of stating he had written a reference of his own free will and indeed he attended the first of the plea hearing in this case.
36 I am satisfied you are a person who for many years worked productively within the community, enjoyed significant support from family and friends and that you have been a devoted son. I am satisfied that your parents will find it very difficult to cope without you, should you be imprisoned, although in my view their hardship does not fall into the exceptional character such that this would be a matter I would take into account in sentencing you. It was conceded by your counsel that the only appropriate way for me to deal with you was by way of a sentence of imprisonment, to be immediately served and this is a concession that I very much agree with.
37 The attack you unleashed on Mr Janazewski was extremely violent, caused serious injury, involved the use of a dangerous weapon and in circumstances where the gravity of offending means there is no other appropriate sentence to impose upon you. However, as I have said, I am impressed by your efforts to reform yourself. I am satisfied these have been genuine efforts and that you are a person with very good long term prospects of rehabilitation, as long as you attend to your dependence on illicit drugs, which in my view has bedevilled your life.
38 I said to you during the plea, Mr Konstantinidis, you are the sort of person who would ordinarily never have appeared before a court in my view, had you not developed this chronic dependence on cannabis and that in turn made you vulnerable to abusing other drugs, such as ice and xanax. I am also satisfied you have suffered the side effects of long term cannabis abuse, that is you developed paranoia, long term memory problems and anxiety.
39 I accept that you are truly remorseful for the offending and I note this marks a considerable escalation in the sort of offending you have engaged in before. Most of that offending, and I do not here include the driving offences, has arisen from a frustration and a loss of control, which was again no doubt contributed to by your chronic drug use.
40 I note that because of your prior criminal history, I have to sentence you as a serious violent offender, but note also that the prosecution does not seek a disproportionate sentence and whilst in these circumstances, I must primarily have regard to protection of the community, it does not seem to me, given the efforts that you have made since March, and given the very many positive aspects of your history, that you do present a particular problem in relation to the safety of the community, provided you continue on the path you have begun.
41 I accept Dr Janev's opinion, that the principles of Verdins, as to moral culpability do have application in your case, for the reasons I have already outlined in summarising what she had to say about them. I also accept that Verdins has application in that because of your psychological and physical difficulties and physical ailments, a service of a term of imprisonment will be more than ordinarily difficult for you, in comparison to other prisoners. I also note this is the first time you have ever served a sentence of imprisonment.
42 In sentencing you, I take into account your early plea of guilty, your genuine remorse, your many years of productive employment within the community, you dedication to your parents, the rehabilitative undertakings you have made and the fact that you were in the grip of a short term addiction to a substance which is well known to transform users into much more violent human beings, at the time of this offending. I have found that you have very sound prospects of rehabilitation.
43 As a result, I will be sentencing you to a term of imprisonment, which will carry a minimum term, reflective of the mitigatory factors and the Verdins principles that I have outlined. I therefore sentence you as follows, could you stand up please?
44 On the charge of intentionally causing serious injury, I sentence you to four years imprisonment, and I order that you serve 18 months of this sentence before becoming eligible for parole. Have a seat, sir.
45 Pre-sentence detention?
46 MS HESSION: It was 17 days, Your Honour. There was ten days spent on remand - - -
47 HER HONOUR: All right, that is fine. Does that include today?
48 MS HESSION: Not including today.
49 HER HONOUR: All right. I declare that you have already served 18 days of this sentence by way of pre-sentence detention.
50 Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced you to a term of five and a half years imprisonment and order that you serve a minimum of two and a half years.
51 Yes, now, we have got some disposal order.
52 MR NANKIN: Orders, Your Honour?
53 HER HONOUR: Can I have the file please?
54 MR NANKIN: Your Honour, I've got fresh no draft orders for - - -
55 HER HONOUR: Have you?
56 MR NANKIN: If it assists.
57 HER HONOUR: All right, that would be helpful, thank you. Now, I am going to order - could you stand up please Mr Konstantinidis? I am going to order that the court take - no, it is a retention order. I have ordered that the DNA sample you provided is being retained, it is all right, sir, have a seat, thank you have got a lot of support, you have always got people here for you, every time you have come to court. You have got a very good future. Just do not go back onto the cannabis. Thank you. Yes, very well. Counsel are excused.
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