Director of Public Prosecutions v Tsoukalas

[2023] VCC 247

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01758

DIRECTOR OF PUBLIC PROSECUTIONS

v

PANAYOTIS TSOUKALAS

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2023
DATE OF SENTENCE:	22 February 2023
CASE MAY BE CITED AS:	DPP v Tsoukalas
MEDIUM NEUTRAL CITATION:	[2022] VCC 247

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Attempted aggravated carjacking – Causing serious injury recklessly – Contravene family violence interim intervention order – Relevant criminal history – Moderate to high risk of recidivism – Limited evidence of genuine remorse – Prospects of rehabilitation guarded – General and specific deterrence – Verdins – Drug use linked to offending – Long history of drug abuse – Complex mental health presentation – COVID-19 Pandemic.

Legislation Cited:      Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic) Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102.

Sentence:                  Imprisonment for a period of 6 years and 6 months with a non-parole period of 4 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Hogan	The Office of Public Prosecutions
For the Accused	Ms A Wong	Victoria Legal Aid

HIS HONOUR:

Introduction

1Panayotis Tsoukalas, you have pleaded guilty to:

(a) one charge of attempted aggravated carjacking contrary to sections 321M and 79A of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment (Charge 1); and

(b) one charge of causing serious injury recklessly, contrary to s 17 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 2). 

2You have also pleaded guilty to the related summary offence of contravene family violence interim intervention order, contrary to s 123(2) of the Family Violence Protection Act 2008, which carries a maximum penalty of 2 years imprisonment (Summary Charge 3).

3You have also admitted your criminal record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5On 26 March 2022 at 11.40am James Remedios was driving to the shops in his 2013 white Toyota Corolla sedan. He turned into Camellia Avenue in Noble Park and parked his car facing Elonera Road approximately 100 metres from the ‘T’ intersection. He collected his food from ‘Little Lion Food & Grocery’ and returned to his car.

6Mr Remedios then drove the car towards the intersection of Camellia Avenue and Elonera Road and indicated that he was going to make a right turn. He stopped at the intersection and waited for traffic to clear. Sara Rep was parked outside 10 Elonera Road and was facing the intersection of Camellia Avenue. Ms Rep observed you walk in a westerly direction on Elonera Road. She observed that you were holding a silver knife in your right hand. You were accompanied by an associate, Nicole Hudson. Ms Rep observed that you had a bandana around your face or head area.

7You ran towards Mr Remedios’ vehicle. You opened the driver’s door and began trying to forcefully remove Mr Remedios from his car. You still had the knife with you at this time. You tried to cut the victim’s seatbelt with the knife around his shoulder area. You continued to shout at him, ‘Get out.’

8Mr Remedios was still strapped into the car with the seatbelt around his waist when you stabbed him to the chest with the knife you were holding. Mr Remedios was in shock and released his foot off the brake causing his car to roll into the intersection, narrowly avoided an oncoming vehicle. Mr Remedios continued driving towards his house with blood seeping from his chest. He felt pain and saw that there was a lump of flesh that was protruding from the place on his chest where he had been stabbed. You and Ms Hudson both ran south on Camellia Avenue for approximately 100 metres. Ms Rep called ‘000’ and reported the incident. Most of the incident was captured on CCTV from nearby businesses.

9At 11.50am, police observed you and Ms Hudson walking along Camellia Avenue. They saw you remove your face covering. Police asked you to get on the ground. You and Ms Hudson were placed under arrest. Police searched you and located a small wooden handled kitchen knife down the front of your pants. At the scene you were cautioned by police and you told them, ‘I tried to pull someone out of the car.’ You also told police that you had the knife and tried to cut the seatbelt.

10You were taken to the Dandenong Police Station and you were interviewed. Prior to the interviewing commencing, you asked police, ‘Is he okay? The guy who got stabbed in the car?’ and police asked, ‘Was the guy in the car stabbed?’ You replied, ‘Oh nothing, I must be getting it mixed up with something else.’

11During the interview, you told police that you could not recall where you were. You stated you remembered Ms Hudson screaming when the two of you had been arrested. You could not recall being searched by police or why you had been arrested. You also stated that Ms Hudson was not involved in the incident. After you were interviewed you were released pending further enquiries as at that stage, the victim was not known to Police.

12When Mr Remedios arrived home, he told his father what had occurred. His father told him he should see a doctor. Mr Remedios drove to the nearby Silverton Medical Clinic to seek treatment. He was advised by staff he would need to attend the hospital to be treated.

13At 12.00pm, Mr Remedios arrived at the Mulgrave Private Hospital where he was treated for his injuries with the insertion of an intercostal chest catheter. Mr Remedios was treated and then taken by ambulance to the Alfred Hospital as he had a fluid build-up in his lungs.

14Mr Remedios was treated at the Alfred Hospital for a small collapsed lung, and he had a collection of blood between his lung and chest wall. Mr Remedios was released from hospital on 29 March 2022. He had four stitches and now has scars as a result of his injuries.

15Police examined Mr Remedios’ car and on 29 March 2022 found your palm print on the car.

16On 31 March 2022, Police attended 12 Coolavin Road in Noble Park and placed you under arrest.

17You are subject to a full interim intervention order which was active and had been served on you on 26 March 2022. A condition of that order was that you not to be within 200 metres of 12 Coolavin Road in Noble Park. It is these facts that give rise to related Summary Charge 3.

18You were taken to the Dandenong Police station and interviewed.

19During this interview you stated that you did not know the victim. You stated that you did not remember the incident. You stated that your first memory was when you were in the police van. When asked if you had committed the offence you replied, ‘No, I don’t know, I don’t remember anything.’

Nature and gravity of the offending

20Attempted aggravated carjacking is, by its nature a very serious offence, reflected in the maximum penalty imposed by Parliament of 20 years imprisonment. In this instance the feature of aggravation is the fact that you were holding a knife when you attempted to take the victim’s car. You wielded the knife and used it by attempting to cut the victims seatbelt in order to remove him from the car. This was undoubtedly a terrifying experience for the victim who was simply driving his car in order to compel a simple errand.

21Clearly frustrated by your attempt to remove the victim from his car, you then gratuitously stabbed the victim in the chest giving rise to Charge 2, recklessly causing serious injury which is also, by its nature, a serious offence carrying a maximum penalty of 15 years imprisonment. The action of stabbing the victim caused him to release the break resulting in the car moving away from you at which point you left the scene.

22While clearly not fully aware of the seriousness of his injury immediately following the stabbing, the victim attended a local medical clinic, followed by the Mulgrave Private Hospital and ultimately, the Alfred Hospital, where he remained for some three days to receive specialised treatment for the injuries he sustained.

23Your offending was committed in broad daylight in a public area upon a person who was unknown to you. In my view in all the circumstances both Charges 1 and 2 represent relatively serious examples of attempted aggravated carjacking and recklessly causing serious injury.

Victim impact

24A victim impact statement was prepared by Mr Remedios in which he describes the emotional, physical and financial impact of your crime. While the victim impact statement consists of the victims hand written brief notes attached to the statement, it is clear on reading those notes that your crimes have had a long lasting effect on him.

25He states that he has ‘up and down days’ following your attack, and that seeing the scar on his chest ‘brings it all back’. He describes the uncomfortable experience of being in hospital and lists the expenses he has incurred including medical and legal costs.

Personal circumstances

26You are now  37 years of age. You were born in Greece and moved to Australia when you were two years old. You were raised in Noble Park in a stable and loving household, alongside your two older sisters. You have limited contact with your sisters as they disapprove of your lifestyle choices. However, you remain close with your parents and speak to them regularly on the phone. This is in spite of the fact that the police applied for a family violence intervention order to protect your parents from you seven months ago.

27You completed your schooling in Noble Park, leaving Carwatha Secondary College after Year 10 to pursue a mechanical apprenticeship. At age 19, having completed the apprenticeship, you worked as a crowd controller for around two years. You then spent nine years working in the construction industry as a labourer and form worker. You had to cease this work when you were sentenced to a term of imprisonment on 30 October 2018. Since then you have struggled to find consistent employment. You aspire to find work in the construction industry upon your release.

28You have two children from different relationships. Your daughter was born in 2012 and you lived with her and her mother, your ex-partner, until your daughter was 18 months old. After the separation, you continued to spend time with and care for your daughter, but due to difficulties in the relationship with your ex-partner, your contact with your daughter was gradually reduced. You were eventually prevented from seeing your daughter altogether in 2016. You were able to re-establish contact in 2019 for around 3 months, but contact ceased again due to relationship difficulties with your ex-partner.

29Your son was born in 2018 while you were in custody, to a different partner. You were released when your son was three months old and saw him most days until you went back into custody in late 2019. You have had limited contact with your son due to COVID-19 lockdowns and being in custody.

30You have been profoundly impacted by your inability to see your children. There are currently no court orders or parenting plans in place for either child, something which you hope to remedy once you are released.

31You started using methamphetamine when you were 20 years old as a way of easing your neurological and mental health symptoms, which are explored in more detail below. You also used drugs as a way of distracting yourself from not having contact with your children. You have also used cannabis, heroin, cocaine and GHB. I note you were taking methamphetamine daily leading up to this offending and were drug affected at the time.

32You have a complex mental health presentation. A psychological report and an addendum report, both authored by psychologist Laura Fleming and dated 2 September 2022 and 20 January 2023 respectively, were tendered on the plea and outline your long history of neurological and mental health symptoms.

33You have reported obsessive compulsive behaviours from a young age, although you do not meet the diagnostic criteria for Obsessive Compulsive Disorder (‘OCD’) at this time. Nonetheless, you have engaged in repetitive and obsessive behaviour in order to neutralise or alleviate your anxiety or stress, and self-report a history of seizures and tics, as well as suicide attempts. Ms Fleming posits that your reliance on substances likely developed as a coping mechanism to deal with these OCD symptoms. Ms Fleming also conducted a risk assessment which indicated that you present as a moderate to high risk of recidivism.

34Ms Fleming is also of the view that you present with traits of Borderline Personality Disorder, characterised by marked impulsivity and a pervasive pattern of instability in relationships, self-image, and emotional regulation. She further notes that you also present with traits of Autism Spectrum Personality Disorder, which manifests as a failure to confirm with social norms, impulsivity, reckless disregard for the safety of others and irresponsibility, commencing from your adolescence. Ms Fleming concludes that, as a result of these conditions, a term of imprisonment is likely to weigh more heavily upon you than a person without your conditions.

35You have a relevant prior criminal history. You were sentenced over ten years ago for the offence of recklessly cause injury and have more recently been convicted for property and weapon offences. In 2021, you were sentenced on two separate occasions for contravening family violence intervention orders.

36Your sister provided a character reference, which was tendered on the plea. She describes you as a ‘normal and sensible’ person throughout your teen years and earlier twenties. She notes you began ‘acting up’ after the commencement of your first relationship, and that your antisocial behaviours got worse when that relationship broke down. She also describes how you have expressed frustration at your recidivism.

Sentencing considerations

37Ms Wong, who appeared on your behalf, highlighted a number of matters in mitigation.

38First is your plea of guilty. While the prosecution case was strong, your plea of guilty still carries utilitarian value. It was entered at the earliest reasonable opportunity and demonstrates your acceptance of responsibility and willingness to facilitate the course of justice. Your plea avoids the need for a trial and most importantly, your plea has spared the victim from having to give evidence.

39The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

40Ms Wong submitted that you have shown genuine remorse, however in the report of Ms Fleming, she notes that you stated that you did not remember the offence and that you planned to plead guilty so you could return to the community. Thus while I accept that you may have expressed a degree of remorse to your lawyer, there is little other evidence of genuine remorse over and above the plea of guilty.

41It was submitted on your behalf, that based on Ms Fleming’s conclusions regarding your mental health conditions and neuropsychological issues, prison would weight more heavily on you and as such, that Verdins[2] principle 5 is enlivened. Ms Hogan, who appeared on behalf of the Director of Public Prosecutions, did not take issue with this submission. I accept that Verdins principle 5 should be given weight in the sentencing calculus.

[2]R v Verdins [2007] VSCA 102.

42You have served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic and I take this into account. While the conditions have been improving, there is uncertainty as to when the prison environment will revert to normality. As such I accept that the additional burden you have endured over your time on remand as a result of the restrictions, will persist for some time.

43I turn to your prospects of rehabilitation. As noted you have a relevant prior criminal history. You also have a long history of drug abuse and you were using methamphetamine daily at the time of the offending. Ms Fleming concludes in her report that you have ‘poor’ insight into the effects of your substance misuse and would benefit from specialised interventions, including a relapse prevention plan. Ms Wong underscored your desire to remain abstinent upon release, and conceded that whilst your insight into your substance misuse is limited, it is not entirely lacking and can be improved with the appropriate treatment. In my view in the circumstances you require significant assistance to facilitate your rehabilitation and currently, your prospects can only be assessed as guarded.

44As correctly conceded by your counsel, deterrence both general and specific remain prominent in the sentencing discretion. Community protection is also relevant in the circumstances. Your offending was frightening conduct committed on an innocent member of the public. It was also committed in public in broad daylight. A strong message must be conveyed that such conduct will not be tolerated and will be met with stern consequences.

Sentence

45Mr Tsoukalas, would you please stand.

46Panayotis Tsoukalas, on Charge 1, attempted aggravated carjacking, you are convicted and sentenced to 4 years imprisonment. On Charge 2, recklessly causing serious injury you are convicted and sentenced to 5 years and 6 months imprisonment. On the related summary offence of contravene family violence interim intervention order, you are convicted and sentenced to 2 months imprisonment.

47I direct that 1 year of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2 making for a total effective sentence of 6 years and 6 months imprisonment. I direct that you serve 4 years and 6 months before becoming eligible for parole.

48Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 328 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

49Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 8 years and 9 months imprisonment with a non-parole period of 6 years.