Director of Public Prosecutions v Papaioannou
[2019] VCC 1978
•29 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01479
Indictment No. H11009394.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW PAPAIOANNOU |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2019 | |
DATE OF SENTENCE: | 29 November 2019 | |
CASE MAY BE CITED AS: | DPP v Papaioannou | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1978 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Common law assault – Early plea of guilty – Committed against former domestic partner – Rolled-up charge comprising three assaults – Lower end in the scale of offending – High moral culpability – Influence of alcohol is not mitigatory – Good work history – Long standing alcohol abuse – No relevant prior convictions – Prior good character – Good prospects of rehabilitation – Fined $3000 without conviction
Legislation Cited: Casino Control Act 1991 s 52 – Sentencing Act 1991 s 5(4) – Sentencing Act 1991 s 8
Cases Cited:Uzun v The Queen [2015] VSCA 292 – Pasinis v The Queen [2014] VSCA 97 – Filiz v The Queen [2014] VSCA 212 – DPP v Meyers [2014] VSCA 314 – Marrah v The Queen [2014] VSCA 119 – Kalala v The Queen [2017] VSCA 223 – DPP v Smeaton [2007] VSCA 256 – Barbaro v The Queen (2012) 226 A Crim R 354 – Ryan v The Queen (2001) 206 CLR 267 – SD v The Queen (2013) 39 VR 487
Sentence: $3000 fine without conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N B Batten Ms M Lynch | Mr J Cain, Solicitor for Public Prosecutions |
| For you | Mr P F Bloemen | Galbally & O’Bryan Lawyers |
HIS HONOUR:
1 Andrew Papaioannou, you have pleaded guilty to one charge of common law assault. This is a rolled-up charge comprising three incidents. The maximum penalty for this offence is 5 years’ imprisonment.
2 The prosecution filed a summary of prosecution opening dated 29 May 2019 which I have been told by your counsel I can treat the relevant parts as a statement of agreed facts.[1]
The facts
[1] Exhibit P1. The relevant paragraphs are 1, 3–17. The reference in [13] to ‘Charge 2 False Imprisonment’ is effectively removed and in [15] the sentence commencing ‘The accused threw a punch …’ has been effectively removed.
3 In March 2017 Tamara Kirkland[2] was the owner of a house located at Rosebud. She lived there with you. At the time you were her de facto partner.
[2]A pseudonym.
4 On 27 March 2017 at 4 pm Ms Kirkland was working at home. She came out of her office and you began to verbally abuse her. You were affected by alcohol. The verbal abuse continued for some time. At about 5 pm Ms Kirkland grabbed her two dogs and left the house and went to the beach.
5 When she returned at 6 pm you continued shouting at her. You repeatedly punched a television, which you owned, smashing the screen. You unplugged it and threw it into a garden bed outside. You continued shouting at Ms Kirkland.
6 You approached Ms Kirkland in the kitchen, blocked her from leaving and puffed your chest out and pushed yourself up against her, but without making contact. You clenched your fists and punched the air in front of her face. Ms Kirkland was scared. You returned to the lounge and watched TV. These facts comprise the first incident.
7 About half an hour later you grabbed a cup of tea from Ms Kirkland’s hand and threw it on the floor, swearing at her. She went to get a cloth from the kitchen to clean up the mess and you followed her. You again puffed out your chest and forced Ms Kirkland into a corner. She tried to get past you but you grabbed her around the chest and shoulders from behind.3 You squeezed her like a bear hug. She told you to stop but you continued. Her arms and chest began to hurt and she could not break free. You and Ms Kirkland ended up on the floor with you keeping a firm grip on her. She was very scared. These facts comprise the second incident.
8 Eventually you let go of her and Ms Kirkland went to her car and got in the driver’s seat, intending to drive away. You followed her and got into the rear driver side passenger seat before she could leave. Ms Kirkland got out of the car and started running down the street. She hid in some bushes.
9 At 8:43 pm you rang Ms Kirkland’s mobile telephone and left a voice message. You sounded very distressed.
10 At 8:44 pm Ms Kirkland rang a mutual friend, Scott Cameron, whom you and Ms Kirkland had gone to school with. Mr Cameron was at home in Berwick with his mother, Marjorie Cameron. Mr Cameron and his mother later picked up Ms Kirkland from shops near her home. They decided to return to Ms Kirkland’s house to collect some of her possessions and two dogs. It was intended that Ms Kirkland would spend the night with the Camerons in Berwick.
11 At 9:38 pm you rang 000 and asked for police to attend at your Rosebud address because your wife had gone missing and she had been gone two hours and might be dead.
12 At about 10:05 pm you rang 000 again concerning your wife having gone missing. While you were on the phone to the operator, Ms Kirkland returned with the Camerons. You asked Mr Cameron why he was there. He told you that Ms Kirkland was there to collect her dogs and go to Berwick. Ms Kirkland found the dogs and collected some items from the house and put them in her car.
13 You told Mr Cameron that everything was alright and that Ms Kirkland wouldn’t be going to Berwick. Mr Cameron suggested to you that you sleep off the effects of alcohol and sort things out the next morning. You then became angry and aggressive.
14 Ms Kirkland returned to the house to get more of her belongings and you followed her inside, locking the front security door and/or the main door. You grabbed Ms Kirkland with both hands and held her with a firm grip. She struggled to break free but was unable to do so. You held her in a bear hug and you and she ended up in your daughter’s bedroom, where you both fell onto the bed. These facts comprise the third incident.
15 Mr Cameron and his mother, who were outside the house, heard Ms Kirkland screaming loudly. Mr Cameron grabbed a baseball bat from his car and tried to smash open the security door. He smashed a window to the right of the front door and tried to gain entry. He could see you on top of Ms Kirkland in a bedroom. You let go of Ms Kirkland and turned to the front door, whereupon Ms Kirkland was able to run outside.
16 You came out of the house and confronted Mr Cameron, accusing him and his mother of betraying you. You and Mr Cameron began to wrestle with each other, with Mr Cameron trying to restrain you. Mrs Cameron rang 000. These are uncharged acts which provide context and do not form part of the facts giving rise to charge 1 on the Indictment.
17 At 10:16 pm police arrived at the house in response to the earlier 000 calls to conduct a welfare check. Senior Constable Adam Devlin noticed that you were extremely intoxicated. You were slurring your words, unsteady even when sitting, emotional and tearful and struggling to follow the conversation. You claimed to have locked yourself out of the house and broken a window to get back in. Police remained at the house until 10:52 pm. They made sure Ms Kirkland was able to leave for the night with the Camerons.
18 Mr Cameron and his mother returned to Berwick in their own car, while Ms Kirkland drove to their house in her car.
19 You were interviewed by police on 6 April 2017 and made no comment, as is your right.
Victim impact
20 Ms Kirkland prepared a victim impact statement dated 12 November 2019.[3] I have had regard only to the relevant aspects of that statement. I have disregarded the contents of paragraphs 3 and 7, much of paragraphs 4 and 5 and the reference to you lacking remorse in paragraph 10. So far as paragraph 8 is concerned, your counsel accepted that your offending in relation to the charge before me has had a significant impact on her life. I have sought to moderate the extent of that impact as detailed in the rest of that paragraph by reason of the effect of the fire on Ms Kirkland not being relevant in sentencing you for the present offence.
[3] Exhibit P2.
21 I accept that the events of this night, so far as relevant to this charge, have changed Ms Kirkland’s life forever and have caused her significant emotional and psychological stress and anxiety. On this night, you demonstrated a rage and anger that made her feel fearful for her safety to such an extent that she felt it was necessary for her to leave her own home to get away from you. You became very controlling and your actions in physically holding her against her will, not once but twice that night, have left scars on her that she continues daily to confront.
22 Ms Kirkland did not deserve what you did to her that night. She did not deserve to be treated with such disrespect or to spend the last two and a half years with personal struggles inflicted by the trauma and abuse she received from you. Ms Kirkland considered that you were narcissistic, controlling and selfish. While this is her assessment of you and not a professional opinion, your behaviour has left scars and an anger that still affects her today.
23 No matter what issues you were dealing with at the time, Ms Kirkland stated that you had all the opportunity and support you needed to get help and confront your problems and addiction, but you continually chose not to.
24 You had no right to make Ms Kirkland feel unsafe, to intimidate or dominate her and absolutely no right to hurt her or hold her against her will.
Offence seriousness
25 A concerning aspect of your offending conduct is that it was committed against your former domestic partner and against a background of ongoing difficulties in your relationship, largely as a result of your abuse of alcohol. Accordingly, your offending conduct falls into the category of domestic violence.
26 Domestic violence, perpetrated mostly by males against their current or former female domestic partners, is an appalling blight on our society. As the Victorian Royal Commission into Family Violence observed:
Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities.[4]
[4] Victoria, Royal Commission into Family Violence: Summary and Recommendations (2016) 1.
27 The Royal Commission was established in February 2015 as a consequence of the Victorian Government’s ‘recognition of the harm family violence causes, and of the need to invest in family violence reforms to assure the future wellbeing and prosperity of all Victorians’.[5] In announcing the Government’s intention to establish the Royal Commission, the Premier declared that family violence was ‘the most urgent law and order emergency occurring in our state and the most unspeakable crime unfolding across our nation’.[6]
[5] Id.
[6] Id.
28 The Victorian Court of Appeal has also expressed its concern with the growing scale of this scourge on our society and has emphasised the importance of general deterrence, denunciation and just punishment. The Court has made ‘repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members’.[7]
[7] Uzun v The Queen [2015] VSCA 292 [48] (Maxwell P), [39] (Priest JA). See generally Pasinis v The Queen [2014] VSCA 97 [53], [57] (Neave and Kyrou JJA); Filiz v The Queen [2014] VSCA 212, [21], [23] (Maxwell P and Redlich JA); DPP v Meyers [2014] VSCA 314, [45]–[46] (Maxwell P, Redlich and Osborn JJA); Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA); Kalala v The Queen [2017] VSCA 223 [55]–[63] (Maxwell P and Redlich JA).
29 In Kalala v The Queen[8] the Court of Appeal, referring to Filiz v The Queen,[9] said that the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44’. In Kalala Osborne JA said:
[T]he prevalence of family violence and the seriousness of its consequences on the one hand, and the need for condign punishment to denounce and deter it on the other hand, are considerations which current understanding would emphasise as being of fundamental importance in cases such as the present.[10]
[8] [2017] VSCA 223 [59] (Maxwell P and Redlich JA) (citations omitted) (‘Kalala’).
[9] [2014] VSCA 212.
[10] Kalala [95].
30 In DPP v Smeaton[11] Dodds-Streeton JA observed that:
Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault.
[11] [2007] VSCA 256.
31 Mr Papaioannou, your conduct in assaulting Ms Kirkland in her home, where she had the right to feel safe, not once but three times on this night and while you were significantly adversely affected by alcohol is utterly deplorable and must be denounced in the highest possible terms. You committed a gross breach of the trust you owed her as her domestic partner.
32 I consider that your moral culpability for this offence is high and the fact you were under the influence of alcohol at the time is not mitigatory. However, I accept that in the scale of offending of this type, your offence falls at the lower end of that scale. It appears Ms Kirkland suffered no physical injury at the time.
33 Nonetheless, general deterrence, denunciation and just punishment remain important sentencing considerations in this case. Moreover, in light of you being assessed as being ‘medium risk of re-offending according to the Level of Service Risk Assessment Tool’[12] I must give some weight to specific deterrence in sentencing you for this charge.
Personal circumstances
[12] See Community Correction Order Assessment Outcome Report dated 18 November 2019 p 1 (Exhibit C1).
34 You were born on 24 July 1971 and you are now aged 48 years. At the time of the offending you were aged 45. You come from a background of a hard working Greek migrant family. Your father was a storeman and your mother worked in retail and in a cafe.
35 Your parents came to Australia in the 1950s. They have never been in trouble with the law. They worked hard to provide for you, your brother and your sister. Your parents are now in their mid-70s and are retired.
36 You have one brother who is a psychologist and your sister lives in Sydney and works as a corporate accountant. They are both estranged from your family. You, on the other hand, maintain a close relationship with your parents and resided with them on Phillip Island in the aftermath of committing this offence.
37 Your daughter Angela[13] is now aged 18 and lives with you in Wheelers Hill. She is currently doing year 12 VCAL at Holmesglen TAFE. You and her mother have been separated for some years. You have had full custody of your daughter since March 2017. Before that you shared half of the custody of your daughter with her mother.
[13] A pseudonym.
38 At the time of committing this offence you were not working and thus in a position to be a full-time parent. However, you now have casual full-time employment as a forklift driver.
39 You completed year 11 at Glen Waverley Secondary College. As a teenager you worked at McDonalds for three years. You sold pies and other food and beverages at Waverly Park for 10 years, when you were aged 12 to 22 and you also worked at the MCG. You were able to obtain a vendors licence as a child when you were 12.
40 You worked as a storeman when you left school for two years. You then worked as a salesman at Bessemer to sell the Margaret Fulton cookware range for two years. After this you were employed as a car salesman for 4 years.
41 You then worked for 20 years at Crown Casino from 1995 to 2016. During this time you were employed as a dealer for six years, table fame supervisor and had secondments to the training department. You rose to become a table game manager and ultimately acting assistant to the casino manager. You quit your job at Crown Casino in mid-2016 when you moved to Rosebud.
42 You hold a Casino Special Employee Licence, Category A for Area Managers and above, pursuant to the Casino Control Act 1991 (Vic). Whilst the present offence is not one specified in the legislation as necessarily giving rise to disciplinary action being taken in respect of your licence,[14] I accept that the recording of a conviction in this case may affect any assessment of the seriousness of this offence for the purposes of determining whether you are a suitable person to hold a licence under that Act. I will take this into account when deciding whether or not to impose a conviction on you.
[14] See Casino Control Act 1991 s 52.
43 Since being arrested you worked for ‘Jayco’ from September 2018 to May 2019. You quit this job at the time of your first trial and you were re-employed when the trial was adjourned. You then worked until July 2019. On 29 October 2019 you commenced casual employment as a forklift driver and storeman at Architectural Window System.
44 I accept that you have a good work history and that this is a protective factor in relation to your current efforts to remain abstinent from alcohol.
45 You have longstanding problems with binge drinking alcohol. During your adolescent years you became a heavy drinker, particularly at weekends when you would engage in binge drinking. Your alcohol issues have continued throughout your life and they worsened during the time you were employed at the Casino. Your drinking issues worsened again about five years ago when your daughter Angela would stay away from home and you would drink heavily in her absence. Your problems with alcohol abuse reached an apotheosis during late 2016 to early 2017 and at the time of this offence.
46 In June 2018 you undertook a 28-day residential rehabilitation program for alcohol abuse at ‘Refocus Rehab Toorak’. In July 2018 you undertook another 28-day residential rehabilitation program for alcohol abuse at ‘Dayhab Glen Waverley’.
47 You had one relapse incident since July 2019 and as a consequence you undertook another 28-day residential rehabilitation at ‘Refocus Rehab Toorak’.
48 I have had regard to the contents of the letter from Mr Neil Sanderson from Dayhab dated 13 November 2019[15] and the letter from Ms Barbara Kustra from Refocus dated 13 November 2019.[16]
[15] Exhibit D2.
[16] Exhibit D3.
49 You have incurred significant expenses funding the cost of these residential rehabilitation programs, amounting to approximately $40,000.
50 You also voluntarily attended psychological sessions at ‘The Talk Shop’ in Wheelers Hill on 10 occasions in 2017. You currently attend Alcoholic Anonymous meetings twice weekly.
51 You voluntarily retained an alcohol interlock device on your car despite it becoming eligible to be removed in July 2019.
52 You understand that overcoming your addiction to alcohol will present a lifelong challenge for you. However, you have always tried to shield your daughter from your drinking problem. I accept that the fact you are currently living with your daughter is also a protective factor in relation to your current efforts to remain abstinent from alcohol.
53 You are currently prescribed Prozac (fluoxetine) for anxiety and depression and you are also medicated for high blood pressure. Your counsel accepted that no Verdins principles are engaged in your case.
Mitigating circumstances
54 You first indicated an intention to plead guilty to the present charge at the committal hearing. Accordingly, yours is an early plea of guilty. I accept that your plea has utilitarian benefit and also indicates an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
55 I accept that, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you by reason of the loss of your relationship with Ms Kirkland, there is insufficient evidence before to make a finding in your favour that you demonstrate true contrition and remorse beyond what is inherent in the guilty plea itself.[17] I do not accept that the two passages in the transcript of your evidence during the trial, which your council referred me to,[18] demonstrate true contrition and remorse for your assault of Ms Kirkland.
[17] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
[18]T 609.3-5 and T 620.1–7.
56 You have no relevant prior convictions or findings of guilt[19] and no subsequent offences or matters outstanding. Accordingly, I accept you are a person of otherwise good character and you are entitled to a measure of leniency on that account.[20]
[19] The only prior matter is an appearance in April 1997 on a charge of criminal damage which resulted in a fine of $600 without conviction.
[20] Ryan v The Queen (2001) 206 CLR 267, 278 [36] (McHugh J); SD v The Queen (2013) 39 VR 487, 493–4 [24]–[31] (Ashley, Redlich & Priest JJA).
57 I do not accept that as a result of the present offending conduct you have suffered what your counsel described as ‘extra- curial punishment’ in the accepted sense of that concept. However, I do accept that what occurred on that night has resulted in a ‘total upheaval of [your] life’.
58 During the course of the events of the evening of 27 March 2017 you broke a window at Ms Kirkland’s house and in the process you severely lacerated your left arm, injuring the left brachial artery and causing haemorrhagic shock.[21] You were admitted to Frankston Hospital where you underwent an exploration and repair of the left volar forearm laceration including repair of the post radial and ulnar arteries. Post-surgery you were admitted to the ICU for two days. Your arm was in a sling for two to three months and it took six months for you to regain strength in your arm. While I was told by your counsel that the function in your arm is ‘somewhat reduced from pre-injury level’, you have made a relatively good recovery from such a serious injury. Otherwise, you are in good physical health.
[21] See Peninsular Health – Discharge Summary dated 31 March 2017 (Exhibit D4).
59 I commend you on the substantial steps you have taken towards your rehabilitation. Your prospects for rehabilitation will depend to a very large extent on your ability to remain abstinent from alcohol. Nonetheless, I am prepared to assess your prospects of rehabilitation as being good.
Application of sentencing principles
60 I have had regard to current sentencing practices in relation to the charge of common law assault. It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’ given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
61 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors. In general terms, these include the seriousness of the offence, your culpability for it, the effect of the offence on any victim and your personal circumstances.
62 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
63 As I earlier observed, general deterrence and denunciation are very important sentencing considerations for an offence of this kind. Whilst just punishment, general deterrence and denunciation must be given significant weight in my instinctive synthesis, I am of the view that in your case, specific deterrence and protection of the community need be given some weight. I assess your prospects of rehabilitation as being good.
64 I had you assessed for suitability for a community correction order (CCO) because I wanted assistance in determining whether further rehabilitative measures would be of warranted in your case. You indicated to the assessment officer that you would not consent to the imposition of a CCO, because of the impact it might have on your current employment situation. This is your right and means that this form of disposition is not available to me in your case.
65 In all the circumstances I have formed the view that a significant fine is the appropriate sentence required to achieve the purposes for which this sentence is imposed.[22] I note the prosecutor submitted such a disposition was open to me in this case.
[22] See Sentencing Act 1991 s 5(4).
66 Regarding your financial circumstances, I was informed you are in full-time employment and you earn $800 net of taxation per week. You live with your daughter in a house which is provided by your parents rent free.
67 I have given anxious consideration regarding whether I should record a conviction in this case.[23] The objective serious of your offending conduct and the impact of the offence on your victim would more than justify my recording a conviction against you.
[23] See Sentencing Act 1991 s 8.
68 However, I have concluded your prior good character and the impact my recording a conviction would likely have on your economic and social well-being and on your future employment prospects, particularly in the casino and gaming industries, justifies not imposing a conviction in your case. I am of the view that not imposing a conviction will advance your prospects of your rehabilitation. I note the prosecutor submitted that this course was open to me in this case.
Stand up Mr Papaioannou
On Charge 1 (common law assault of Tamara Kirkland) without conviction you are fined $3000.00. This fine will be referred to the Director of Fines Victoria for collection.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty is a fine of $5000 with conviction.
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