Director of Public Prosecutions v Thomas
[2016] VSC 8
•29 January 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0177
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLLIN ORMAN THOMAS |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 December 2015 |
DATE OF SENTENCE: | 29 January 2016 |
CASE MAY BE CITED AS: | DPP v Thomas |
MEDIUM NEUTRAL CITATION: | [2016] VSC 8 |
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CRIMINAL LAW – Sentence – Murder – Arson – Offender assaulted deceased several times and then set fire to the garage where the body was located – Difference between intention to kill and intention to causing really serious injury – Whether arson treated as aggravating factor of murder or separate offence - Relevance of accused personality disorder to moral culpability.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy QC | Director of Public Prosecutions |
| For the Accused | Mr C Mandy | David Barrese & Associates |
HIS HONOUR:
Overview
On 16 October 2015, the jury found you guilty of the murder of Mr George Anagnostellis and guilty of arson involving the garage in which his body was recovered.
The events giving rise to these two convictions occurred in the early hours of the morning of 11 April 2014 at the home of George’s parents, John and Grematia Anagnostellis, in East Malvern.
The prosecution’s case was that you deliberately caused really serious injury to George, resulting in his death, and that you subsequently set fire to the garage where he died. The verdicts exclude suicide as a cause of death.
Personal circumstances
You are now 34 years old and have a seven year old son, Tane, who lives with his mother Melissa.
You were born in New Zealand, and spent your childhood there until immigrating to Australia with your mother and stepfather at age 16. Your childhood in New Zealand was disruptive; you followed your parents around the North Island as they sought work, which meant that you attended no fewer than 12 schools and were often cared for by relatives. You completed year nine at school but have not completed any apprenticeship or vocational training.
Your relationship with your parents is now non-existent.
Your work record is also close to non-existent. You have had a few odd jobs but essentially have been unemployed since mid-2000 relying on welfare and, if you were lucky, proceeds from poker competitions, in order to support yourself. It is through poker that you met George Anagnostellis.
You have a history of substance and alcohol abuse. You were introduced to cannabis by an uncle. You sought treatment for your drug and alcohol problems in 2012 and were diagnosed with depression. You reduced your drinking briefly, but in 2013 you spent time in custody and upon being released you struggled to reintegrate into the community and began drinking heavily again.
George Anagnostellis
George Anagnostellis was 49 at the time of his death. Sadly, George Anagnostellis’ personal and professional life disintegrated after 2009. His cleaning business failed and, within a couple of years, he and his wife had separated. Eventually, he had moved into a kitchenette/bedroom at the back of a garage at his parents’ home. He was quite a heavy drinker and smoked marijuana. His major social activity appears to have been going to the Sandown Park Hotel, where he regularly participated in poker tournaments.
Notwithstanding this situation, George remained close to his five children and had a cordial relationship with his former wife. He is described by all as a gentle and caring man.
The circumstances surrounding George’s death
As I have mentioned, George was a regular at card nights at the Sandown Park Hotel and had become friendly with you and a group of card players.
On 10 April 2014, you and George with others in the group participated in a poker tournament at the hotel which finished late in the evening. Afterwards, you, together with George, Andrew Heke and Scott Sullivan, drank alcohol and socialised. Early in the morning on 11 April 2014, somewhere between 1.05am and 1.12am, the four of you left the hotel to go to George’s house.
The group arrived at the East Malvern house and went to the kitchenette at the rear of the garage. A table and chairs were located within the kitchenette where you and the other three sat playing cards and drinking alcohol, which included George’s home-made ouzo and wine.
Sullivan fell asleep and subsequently went home. You, Heke and George remained at the garage. Heke allegedly fell asleep.
Shortly after Sullivan left, you initiated an unprovoked vicious attack on George. The cause of this unprovoked attack was George’s refusal to discuss with you the whereabouts of a mutual acquaintance whom you believed had a sexual relationship with your former partner. You admitted several times in your record of interview with the police that you assaulted him 20-30 times with a mixture of punches, elbows, knees and headbutts to the face, head and nose. You could not remember if George was on the ground while being assaulted. You thought that George had been knocked out. The injuries produced a great deal of blood and it must have been clear to you that George was close to death.
I have little doubt that the balance of the record of interview (which I will briefly recite) was a fabrication. It was as follows:
(a) George regained consciousness and was helped to a chair by you. He was limp, but responsive.
(b) You ‘cleaned up’ George, who uttered a few words and then became ‘a little agro’ towards you.
(c) George recovered to the point where he was standing up ‘looking pretty pissed off’ and shouting, and acting aggressively. At this time, George was in front of the kitchen bench and was very aggressive. He had recovered sufficiently and was threatening you in both English and Greek.
(d) George said ‘I’m happy to pour petrol and take you and Heke with me right here right now’. He picked up a jerry can and poured petrol from it. You then picked up Heke and dragged him out.
(e) You told police that as you got to the flyscreen door the ‘last thing I saw was George with a lighter’ and facing towards the ouzo. An explosion occurred as you were ‘pushing the flyscreen door’.
(f) Both Heke and you were blown out into the yard.
I take up the undisputed story. At some point after 5.00am, a fire started in the kitchenette, which ultimately led to an explosion which damaged the roller door and window. George was burnt by the fire. I accept that he was already deceased when the fire started. Heke suffered moderate burns to parts of his body and you, a burn to your right foot.
After the fire, you and Heke were picked up by a friend at a BP Service Station in Caulfield.
The next day, you voluntarily attended the Dandenong Police Station and participated in a lengthy record of interview which I have referred to.
Dr Lee, the pathologist who carried out the autopsy on George’s body made the following findings:
(a) There were a number of blunt impact injuries to the head, neck, face and torso. The injuries to the head included lacerations to the scalp, fractures of facial bones (two to the nose and one to the orbital bone), subdural and subarachnoid haemorrhages and facial contusions. The injuries to the neck included haemorrhages within the strap muscles and fractures of the hyoid bone and thyroid cartilage.
(b) Dr Lee’s opinion was that George Anagnostellis died from bleeding around the brain (subcutanial and subdermal). In addition, the injuries to his neck could have contributed to his death.
The verdicts on both the murder and arson charges make it clear that the members of the jury accepted your admissions relating to your assault upon George and rejected your account of subsequent events. I am quite satisfied that your account of George’s recovery was a farrago of self-serving lies.
Victim impact statements
The prosecutor did not file any victim impact statements, however, a medical certificate from Peroula Tsoudis, a psychologist, and a letter from Dr Nutan Thoman were tendered. Each had treated George’s parents, John and Grematia, for psychological trauma. Both are suffering ‘severe psychological injuries’ as a result of their son’s sudden and violent death, in particular John, who is suffering post-traumatic stress disorder as a result of finding his son’s charred body in the garage. Ms Tsoudis is concerned at the risk of both parents committing suicide.
Nature and gravity of the offence
Murder is the most serious offence in this State. The maximum penalty is set by statute at imprisonment for life.[1]
[1]See Crimes Act1958 (Vic), s 3.
Both the prosecutor and defence counsel submitted that your offence falls within the bottom end of the middle range of seriousness for the charge of murder. There was no weapon used; plainly the attack on George Anagnostellis was the result of a rage on your part provoked by his failure to disclose the whereabouts of your mutual acquaintance.
Notwithstanding the vicious beating that you inflicted on George, resulting in his death, the prosecution does not allege that you intended to kill him, but rather, to cause him really serious injury.
The trial was conducted cooperatively with a refinement of the issues which the jury had to consider. In the end the jury dealt with two relatively narrow issues (putting aside the charge of arson which I will return to in a moment):
(a) whether you intended to kill or cause George really serious injury; and
(b) a factual proposition that in some way his death resulted from the explosion and not the bashing you inflicted upon him.
I doubt whether the second proposition troubled the jury for very long. In my view, you should be given some credit for the utilitarian value of this approach to the trial.[2]
[2]Karam v The Queen [2015] VSCA 50 [156]-[157].
Remorse
Any remorse as to the murder of George Anagnostellis is moderate and ambivalent. There is the utilitarian benefit of you admitting your role in the assault to the police at the earliest opportunity. It was open to you to take a variety of courses to complicate the investigation but you made admissions, and a number of those admissions were relied upon by the prosecutor to prove the case of murder. Of course, that needs to be balanced by the lies that you told the police about events after George was rendered unconscious.
There are also mild demonstrations of remorse apparent from comments you made during your record of interview. You said that you felt guilty after the assault and expressed feelings of regret. One example is where you said:
I’m actually feeling pretty shitty about it ‘cause as…you talk about it more this poor old mans upstairs. I didn’t realise he had three kids. Wow.
This, as I just mentioned, needs to be balanced against your desperate efforts to shift the blame and your denial of responsibility for George’s death.
Prospects of rehabilitation
Your criminal history up until 2013 was relatively minor. It included charges of obtaining property by deception, theft and a charge of driving whilst disqualified.
There are, however, recent convictions relevant to your prospects of rehabilitation.
In October 2013, you were convicted of the charges of affray, unlawful assault, recklessly causing injury, and criminal damage arising out of an incident at the Sandown Park Hotel. You were sentenced to and served four months in prison.
Then shortly after your release, in January 2014, you were involved in an attempted robbery at a Hungry Jacks restaurant. You were sentenced to three months imprisonment in April 2015. Whilst this is not a prior conviction, it is relevant to your prospects for rehabilitation.
Finally, there was an assault on another prisoner in September 2014 whilst you were at Port Phillip Prison. You were sentenced to 14 days’ imprisonment. These convictions demonstrate your inability to control your violent outbursts and an increasing tendency to resort to violence.
However, I accept, as submitted by your counsel, that prior to and leading up to these charges you were using drugs and alcohol and not receiving treatment for your personality disorder, a matter which I will mention in a moment.
It is to your credit that you elected to serve a term of imprisonment for a raft of outstanding fines prior to the imposition of this sentence so you could participate in a drug and alcohol course which would not have been available to you if you were on remand.
I am prepared to accept, particularly in the light of Patrick Newton’s report (which I will mention in a moment) that, notwithstanding your inability in the past to make any worthwhile contribution to Australian society, there is a prospect of you emerging from imprisonment with a better insight as to your behaviour and, hopefully, with some work skills you can put to good use.
Moral culpability
Through your counsel, you have tendered a psychological report prepared by Mr Newton, which seeks to explain, in some way, the reason behind your offending. The report concludes that there is no evidence that you suffer from a cognitive deficit or an intellectual disability.[3] Mr Newton maintains, however, that you suffer from major personality disorders. He believes that the chaos, instability and abuse which you experienced as a child has profoundly affected your emotional development. In other words, your disruptive and difficult childhood has left you ‘vulnerable to experiencing relatively intense emotional reactions to life stressors’ because, quite simply, you do not know how to deal with conflict.[4]
[3]Psychological assessment report of Mr Patrick Newton, [36].
[4]Psychological assessment report of Mr Patrick Newton, [33].
After conducting a detailed review of your conflict-management skills and capacity to control your anger, Mr Newton concluded that:
(a) you have difficulty identifying the physical signs that you are becoming irritated or that your anger is growing intensely; and
(b) your ability to articulate the types of thoughts proceeding your emotional experiences is limited.
I accept that your chaotic childhood has undermined the development of your personality while your longstanding substance abuse lifestyle impacted your life-skills. You have had little opportunity to develop these skills due to a piecemeal engagement with employment, education and relationships. Mr Newton’ also states that your behaviour is not simply a complication of substance abuse but rather a ‘pervasive pattern of social, occupational and interpersonal dysfunction’ and has diagnosed you as having an antisocial personality disorder with prominent narcissistic features as well as a substance abuse and gambling disorder’.[5] He concludes that your inability to control disruptive rage results from a series of long standing personality issues which contribute to a severely heightened risk for anger related problems.
[5]Psychological assessment report of Mr Patrick Newton, [48].
The law requires me to consider these personality disorders as part of an assessment of your moral culpability in fixing the appropriate sentence. [6] In my view, these personality disorders operate to reduce your moral culpability to a moderate degree. I have adjusted the sentence I would otherwise impose to reflect this.
[6]See DPP v O’Neil [2015] VSCA 325.
The arson count
I turn now to the conviction for arson.
There are two ways that I can treat this conviction: either as an aggravating feature of the murder charge or as a separate offence.[7] The prosecution’s case was that the arson occurred after the death of Mr Anagnostellis and should be treated as a discrete event. Your counsel did not dispute this approach. I propose to treat these counts separately.
[7]Ibid [96]-[97].
The garage belonged to George’s parents, John and Grematia, and formed part of their home. In more recent years it had become the temporary home of their son. It was damaged by the fire and explosion. The prosecution did not tender evidence as to the amount of damage caused by the fire and explosion, but I have seen photographs taken afterwards, depicting damage to personal possessions, as well as some damage to the garage. There is also the charring of George’s body. I consider that the arson offence is part of the overall course of criminal conduct and although it is a separate offence, it is appropriate to allow for partial concurrency with the sentence of imprisonment for murder
Totality
In fixing your sentence, the law requires me to take some account of time already served by you in prison on other charges which are not calculated as part of time served in pre-sentence detention.[8] There are three months’ imprisonment for attempted robbery, 14 days imprisonment for intentionally causing injury, and also the 200 days you served in relation to outstanding fines.[9] I am mindful of the ‘overall criminality’ of the offending and that the sentence that I impose cannot be the product of a mere arithmetical exercise or more than what is necessary to satisfy the objectives of sentencing. It must be a matter of ‘instinctive synthesis’.[10]
[8]R v Piacentino; R v Ahmad (2007) 15 VR 501, 507 [32].
[9]See ‘Prospects of rehabilitation’ section above.
[10]See Hudson v The Queen (2010) 30 VR 610, 616-617 [27]-[28].
Conclusion
You murdered a helpless and innocent man. When George did not give you the answer you wanted you ‘snapped’ and erupted into a violent rage beating him repeatedly. Such lack of control cannot be tolerated and calls for a lengthy period of imprisonment. In time, and with treatment, you may learn to deal with stressful situations and conflict without resorting to aggression.
For the reasons that I have set out I consider that your prospects of rehabilitation are fair. As I have said, I accept that you have demonstrated some moderate and ambivalent remorse, and until recently, you had no history of violent offending. Against that I must give significant weight to general deterrence in this sentencing exercise. Part of this sentence's function is to deter others from similar violent brutality. Other functions of this sentence are to denounce your conduct and to punish you. Given your recent episodes of violence, in your case, specific deterrence also must be given some weight. Overall, I accept both counsels’ submissions that this offending falls within the middle range of seriousness for the charge of murder but towards the lower end of that range.
Balancing these factors as best as I can, on the charge of murder, I sentence you to 20 years imprisonment. On the charge of arson I sentence you to one year imprisonment. I direct that six months of this sentence be served cumulatively upon the sentence for murder.
The total sentence is therefore twenty years and six months imprisonment. I direct that a minimum of 16 years and six months imprisonment be served before you are eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that your period of pre-sentence detention is 428 days, including this day. That period is to be reckoned as time already served and I direct that be entered in the records of the Court.
I have also made the disposal orders sought by the Director of Public Prosecutions pursuant to s 78 of the Confiscation Act 1997 (Vic).
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