Director of Public Prosecutions v Patris

[2016] VCC 1683

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02221

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRIS PATRIS

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2016
CASE MAY BE CITED AS:	DPP v Patris
MEDIUM NEUTRAL CITATION:	[2016] VCC 1683

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nankin
For the Accused	Mr A. Andrianakis

HIS HONOUR:

1Chris Patris, you are to be sentenced for one charge of kidnapping pursuant to s.63(A) of the Crimes Act, one charge of intentionally causing injury and one charge of attempting to pervert the cause of justice.

2The applicable maximum sentences are 25 years' imprisonment for kidnapping and attempting to pervert the course of justice, 10 years' imprisonment for intentionally causing injury.

3You pleaded guilty before me on 7 September.  When interviewed by police on 13 May 2015, you answered some questions but did not make admissions.  There was a contested committal in December of that year and the matter was listed for trial in this court.  It settled and as stated, you pleaded guilty to these offences.   I bear in mind that this was a negotiated position and the Crown has not proceeded against you on a number of charges.

4You receive the benefit of your plea of guilty and the level of co-operation and that short history of the proceeding shows.  You have facilitated the interests of justice.  That eight accused have pleaded guilty   avoids the cost and difficulty of a trial of some length.  Your plea expresses remorse.

5At your plea hearing which ran on 31 October, Mr Slim for the Crown tendered a written Crown opening and photographs depicting injuries of  Nathan Findlay.

6Mr Georgiou SC,  for you, tendered a letter by your father's general practitioner Dr James Lawless, the letter of general practitioner Dr Graham Smith in respect of your own health, the forensic psychologist report of Dr Aaron Cunningham and two letters of character evidence by Robin Abdel-Malek and Jenny McKay.  Mr Georgiou provided a written outline of submissions.

7The circumstances of your offending are described in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.

8Your offending and that of seven co-accused occurred on 13 May 2015.  It was primarily directed at Nathan Findlay.  Findlay had been hitherto been selling drugs for you.  He owed you several thousand dollars.    At the plea hearing,  through Mr Georgiou, you denied that the debt was drug related.  You did not give evidence before me about this.   After consideration of relevant depositional material, including but not only the statement of Findlay and applying the principles of The Queen v Storey, I find that the debt was a drug debt and as put in the Crown opening.

9To enforce payment you engaged Joshua St Mart and Nathan Morley-Corrin to capture Findlay and bring to your home in Officer.  Those two men assaulted and took Findlay from a Cranbourne park to Officer.  You and others were there. Findlay was pressed about his debt and other debtors.  After communication with you, Brett Audsley and his nephew, Ben Johnson,  came to the house.  They arrived at about 2.40 pm with an associate of Findlay named Hurley.  It is apparent that he also owed money.  He has not been charged.   It had been or was decided that Audsley and Johnson take Findlay to Traralgon to collect moneys.  Driving your motor vehicle, a Statesman, they set off at about 3 pm.

10Paragraph 14 and 15  of the Crown Opening state as follows:

"Findlay was forced to travel with Audsley and Johnson to Traralgon in order to collect moneys owed.  At approximately 3 pm he was made to get into Patris' white Statesman to be driven to Traralgon.  However the trip was aborted about halfway due to Audsley and Johnson's suspicions that Findlay was attempting to contact people on his phone and suspicions concerning possible surveillance.  The car was stopped.  Findlay was assaulted by Audsley and Johnson, had a loaded gun pointed at him by Audsley accompanied by threats to be killed 'because he was setting them up.'  He was also searched and personal items taken from him; jewellery and phone."

11It appeared the position at plea hearing that what happened on the Traralgon trip was not part of the Crown case against you.  You will not be sentenced on the basis that you were complicit in the actions of Audsley and Johnson just described in paragraphs 14 and 15.   However I do find that he was taken at your request or direction for the purpose of making good  drug debts to you.  This is part of Charge 1 against you, kidnapping.  That offence and your complicity in it continued until his, Findlay's, release by police at or soon after 7 pm.

12Audsley and Johnson brought Findlay back to Officer.  Paragraph 16 and 17 of the opening state as follows:

"He was taken back to Officer, taken to the garage where he was tied up, gagged and a balaclava put over his head.  He was punched, kicked and threatened by Audsley and Johnson while Patris stood and watched telling Findlay that this would not be happening if he had paid his money.  He was taken back inside the house to the kitchen area where he was further assaulted.  Audsley and Johnson then left the premises."

13A co-offender named Marino came to the house.  He threatened, punched and kicked Findlay.  Marino declined your suggestion that he take Findlay away with him.

14At about 4.50 pm, you spoke on the phone to a co-offender Nicholas Reed and told him to come to the house.  You left with others soon after his arrival at about 5 pm.  Findlay remained watched over by Reed and your partner,  Annie Whitbourne.   He was pressed again about debts and debtors.  At one point, Findlay observed Reid with a handgun, later found by police at the premises.

15Although you had left, you kept phone contact with others including Audsley and, at the house, Reed and Whitbourne.  Paragraph 24 of the Crown opening states:

"Patris telephoned Reed and instructed him to ask Findlay who he had been messaging on the way to Traralgon.  Patris, via phone and SMS spoke to Reed regarding who might know that Findlay was at the house in Officer.  He instructed Reed to take Findlay for a drive.  When Reed asked what would stop Findlay from getting out of the car and running away, Patris told him to assault him ('crack the cunt').  Patris gave further instructions to Reed about finding out who would know where Findlay was."

16Accordingly, whilst not complicit in what Audsley did on the Traralgon trip, you were made aware of at least some aspects.

17Police had been conducting surveillance, both visual and upon telephones throughout the day.  At about 7 pm, they surrounded the house.  At 7.12 pm, Whitbourne rang and told you this.  She  told you not to return.   At 7.30 pm, you rang Whitbourne and instructed her to flush a box or package of methylamphetamine down the toilet.  She disposed of it into the kitchen sink.  This is the subject of Charge 3, pervert the course of justice.  I agree with Mr Georgiou's submission that it is at the low end of range for such an offence.

18Soon after Whitbourne, Reed and Findlay left the house, Whitbourne and Reed were arrested.  In part, paragraph 30 of the opening states as follows:

"Findlay was recovered by police and seen by ambulance officers.  He suffered bruising, lacerations, bleeding, swelling to the head and face, sore and bruised back, chest and ribs as a result of the assaults upon him, in particular the ones in the garage and kitchen area.  He had a headache and was bandaged."

19There seemed to be general agreement across the various plea hearings, including your own, that the most serious and damaging assault of Findlay happened in the garage.  That was perpetrated directly by Audsley and Johnson, in your presence with your encouragement and approval.

20Mr Georgiou raised parts of the depositional material and made the point that you did not at any time physically assault Findlay and, for example,  at one point in the garage  ask the others to stop.  You gave him a drink of water in the kitchen.  I accept these things.   However I also find that you were the senior participant in the day's events.  Others acted on your request or instruction.  You kept up communication of that kind after you left the house.  What happened was aimed primarily at your benefit.

21As to Charge 2, I find that you approved and encouraged essentially all assaults upon Findlay at Officer.  You will be sentenced on that basis.

22You are a 47 year old man without prior convictions.  In May 2014 you were fined without conviction for driving offences and possessing a prohibited weapon.  That is of little relevance to this sentence.

23You came to Australia from Greece at 1.  You had an older brother who died about two years ago and have a younger sister and brother.  Your parents separated about 30 years ago.  Your mother lives in Melbourne.  She has a long history of serious mental health problems.  Your father lives in Apollo Bay.  He is in poor health, suffering diabetes and a heart condition.  You are close to both of your parents and see them regularly.   Mr Georgiou describes you as your mother's main carer.  That entails assisting her with shopping, medical appointments and care of her home.  You usually see her every two days.  You see your father in Apollo Bay every fortnight.

24You have been married.  That ended, after 15 years,  about eight years ago.  There was a son aged 12.  You share custody and have a good relationship with him.   You have been in a relationship with Annie Whitbourne for about five years.  She has a son aged seven or eight who lives with his father;  but it  is expected that he will return to live with Ms Whitbourne.

25You grew up in the Ascot Vale area but completed Year 12 at Northcote High School.  You began but left a Mechanical Engineering course at Swinburne TAFE and then worked in sales for many years.

26You suffered serious injuries in a motorcycle accident in 2000 and after that began studies in Naturopathy and like disciplines.  You became qualified in 2005.  You have worked for yourself in that since.

27You have had over a number of years heart problems including high blood pressure, palpitations and irregular rhythms.  These problems are said to be affected by stress.  You take medication as required.   After arrest you spent 44 days in remand custody before being granted bail.  When seen by forensic psychologist Dr Cunningham in custody, you were experiencing what he termed "stress palpitations", poor sleep and weight loss.  Seen more recently by Dr Cunningham, some palpitations continue, sleep problems remain to some extent.   You worry about your son, Ms Whitbourne, your health and your mortgage.  Dr Cunningham diagnoses adjustment and  anxiety disorder, largely related to your legal predicament.  You own the Officer home but owe about or over $400,000 on mortgage.

28Mr Georgiou described particularly strict conditions of your bail including daily reporting and nightly curfew.  This has affected your relationship with and care for your son and father.  I take this into account as an aspect of some punishment already undergone.

29As stated, you have no prior convictions.  There are pending matters.  You are charged with trafficking methylamphetamine in a commercial quantity on
6 April 2015, a little over one month prior to these offences.   There is a committal hearing in January 2017.  As I understand, you do not admit the offence and it thereby has no relevance to my sentence.

30This is very serious offending.  Kidnapping attracts  a maximum sentence of 25 years.  Your role, as I earlier described, was senior in the day's activity.  It occurred in the sinister context of the drug culture.  Its aim was to your benefit.

31There was a prolonged, several hour detention of Findlay which experience,  I would find,  must have been very frightening and harmful to him.   Such circumstances make relevant and important sentencing purposes and considerations of deterrence,  particularly general deterrence, your moral culpability, the need to condemn the offending and impose punishment proportionate to it.  There must be a period of imprisonment.

32I take into account moderating factors which go to reduce the length of that imprisonment compared to what the adverse features and identified sentencing purposes otherwise require.

33They particularly include the following.

34(1)    Your plea of guilty and co-operation.

35(2)    Your personal history and circumstances.  This would include the hardship to others,  your parents, son and partner,  raised in the plea hearing and  materials.  I accept that anxiety about these people will make imprisonment harder for you.

36(3)   Your otherwise relatively good character.  This also relates to your prospects for rehabilitation.  I should see those as genuine.

37As stated,  these matters should moderate your sentence. However I find the circumstances of this offending and your role to be serious and concerning.  Ultimately there must be imprisonment of substantial length.

38The principle of parity does not strictly apply.  Your situation is different to co-offenders.  For example, your role was senior but your prior history markedly less than others.  However,  I attempt to sentence you with some reference to sentences of others I have already imposed,  given the matters and reasons leading to such sentences.

39After considering what I see to be the relevant matters, I sentence you as follows.

40Charge 1, kidnapping, you are sentenced to 5 years' imprisonment;

41On Charge 2, intentionally causing injury, 12 months' imprisonment;

42On Charge 3, attempting to pervert the course of justice, 6 months' imprisonment.

43I direct that 4 months of the sentence on Charge 2 be served cumulatively on the sentence for Charge 1.  That is a sentence of 5 years and 4 months.  I set a minimum term of 3 years and 4 months.

44I declare under s.18, 44 days of pre-sentence detention.

45Under s.6AAA, I indicate I would have imposed a sentence of 8 years with a minimum term of 6 years if you had not pleaded guilty.

46I have omitted to say what I said in all or most of the other sentences, that in directing cumulation I have taken into account the relationship of Charges 2 and 3 to Charge 1.  They are adverse features, particularly Charge 2 of the sentence of the offending under Charge 1.  That is the approach that I have taken.

47Now what else do I need to do?

48MR NANKIN:  There is just the disposal order, Your Honour.

49HIS HONOUR:  Yes, well I will sign that.  There has been a forensic sample taken?

50MR NANKIN:  There was a forensic sample taken.  It will be retained automatically.

51HIS HONOUR:  Yes.  I have signed those orders.  Is there something else for me to do?

52MR NANKIN:  Nothing else, Your Honour.

53HIS HONOUR:  I thank you both for your assistance.  I note that Mr Patris' partner and I presume his father are here today.  I will allow them to speak to Mr Patris for a short time.  If you would supervise that, it cannot be very long.  I will wait whilst that happens.

54MR ANDRIANAKIS:  Thank you, Your Honour.

55HIS HONOUR:  Mr Patris will be taken into custody now, thank you.

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