DPP v Callinicos & Stoupas
[2007] VSC 22
•21 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1469 of 2006
| DPP |
| v |
| STANLEY CALLINICOS |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2006 | |
DATE OF SENTENCE: | 21 February 2007 | |
CASE MAY BE CITED AS: | DPP v Callinicos and Stoupas | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 22 | |
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CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – guilty pleas – general and specific deterrence – pleas of guilty – unusual combination of strong mitigating factors.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Gyorffy | Ms Angela Cannon, Solicitor for Public Prosecutions |
| For the Accused Callinicos | Mr D Brustman | Valos Black & Associates |
| For the Accused Stoupas | Mr A Jackson | Tony Hannebery Lawyers |
HIS HONOUR:
Stanley Callinicos and Sophia Aileen Stoupas, you have pleaded guilty to committing the crime of manslaughter upon Peter William Shellard at North Caulfield in Victoria on 7 May 2005.
The maximum penalty for manslaughter is imprisonment for 20 years. Because it involves the destruction of human life, manslaughter is regarded as a crime of most serious gravity.
The circumstances I will now describe reveal that you both assaulted the deceased by binding him up and that you, Ms Stoupas, acting in concert with you, Mr Callinicos, hit the deceased to the head with a heavy object, twice, and that these actions substantially caused the death of the deceased. In doing so you committed the crime of manslaughter by unlawful and dangerous act.
Mr Shellard was a businessman aged 56 years. He lived at a house known as Rosecraddock in Caulfield North. For some time prior to his death, he had been in a personal and business relationship with Shirley Withers. Ms Withers will stand trial this year for the murder of the deceased. The prosecution will contend she did further acts that caused his death with the intention of bringing that result about.
In the months leading up to the death of Mr Shellard, Ms Withers formed a relationship with both of you. You were drug addicts, and you, Mr Callinicos, supported these habits by dealing in drugs. You supplied amphetamines and heroin to Ms Withers, and you both became friendly with her. She showered you both with money for drugs and gifts. She took you to the casino and gave you gambling money. Ms Withers operated a clothing boutique in Brighton from which many of the gifts came. By reason of Ms Withers’ generosity, you both fell under her strong influence.
Ms Withers fell out with the deceased when she misused her position as the operator of some of his financial accounts. Police investigations have revealed many instances of her unauthorised use of his bank accounts and credit cards. The money embezzled by her is alleged to amount to several hundred thousand dollars, much of which went to support the boutique, which was trading poorly. The deceased came to realise this, and took the necessary steps to cancel her authority to operate the accounts.
Ms Withers presented to both of you an entirely different picture of Mr Shellard. She told you he was not paying his bills, was denying her access to money she was entitled to, was trying to take away a house belonging to her and was forcing her to have sexual intercourse involving bondage.
On 6 May 2006 you, Mr Callinicos, were approached by Ms Withers to assist her to get someone to help her tie up the deceased, force him to sign the house back over to her and show him what being tied up was really like. She asked you to buy speed and heroin, some of the heroin being intended for the deceased, and the rest of it being intended for you and Ms Stoupas.
Mr Callinicos, despite some doubts of conscience, you agreed to provide this assistance and bought the drugs. Both of you were given some of the heroin by Ms Withers and the remaining heroin was kept by Ms Withers in a syringe. The three of you then went to Mr Shellard’s house in Ms Withers’s car. You had with you ropes, handcuffs and other paraphernalia you intended to use upon him.
In the car, you, Mr Callinicos, prepared the rope for the deceased’s feet and you, Ms Stoupas, had the handcuffs ready for his hands. You entered the house when the deceased was asleep in his bed in his boxer shorts. Ms Withers put a pillow over his head. You Mr Callinicos tied up his feet with the rope, and you, Ms Stoupas, tried to handcuff him.
Mr Shellard put up a very strong struggle. In the course of this struggle, he bit your finger, Ms Stoupas. You managed to rip it out but you then grabbed the nearest object and instinctively hit him on the head with it, twice. Mr Callinicos, you did not hit Mr Shellard. But you acted in concert with Ms Stoupas during these events. That Mr Shellard might be hit on the head with an object during the course of these events was reasonably foreseeable and therefore came within the scope of what the two of you together did to Mr Shellard.
Violently tying Mr Shellard up and hitting him with an object were assaults and substantial causes of Mr Shellard’s death. A reasonable person in your positions would have realised these actions would have exposed him to an appreciable risk of serious injury. This is the basis of your pleas of guilty to the charge of manslaughter by unlawful and dangerous act.
After both of you and Ms Withers overpowered Mr Shellard, you left him trussed up with ropes and electrical cords, lying on his side on the floor, moaning and groaning. The three of you then went to the kitchen. Ms Withers left you there alone and went to Mr Shellard’s bedroom. The prosecution says she there injected the deceased with heroin, which was also a substantial cause of his death. Neither of you played any part in Ms Withers’s actions in this regard, and your sentences will not reflect this in any way.
A little later you, Ms Stoupas, with Ms Withers’s help, inserted a suppository into Mr Shellard. Then the three of you left the house about 2.00am on Saturday, 7 May 2005. You all returned at about 8.00am so Ms Withers could give more heroin to Mr Shellard, after first giving some to both of you.
At about 6.50pm, Ms Withers reported to the police that she had found Mr Shellard in his home. A police investigation began and on 9 June 2005 the three of you were arrested and charged. Ms Withers is in custody awaiting trial on the charge of murder. You are both in custody having now pleaded guilty to the charge of manslaughter.
The autopsy of the deceased revealed that the causes of his death were the effects of heroin injection and head injury in a man with coronary artery atherosclerosis, from which Mr Shellard was suffering.
[paragraph deleted upon revision].
It is a matter of great significance that you have both offered to give evidence against Ms Withers in her trial on the charge of murdering Mr Shellard. Doing so exposes you to considerable physical risks. These risks are not hypothetical. Ms Withers attempted to hire a hit man to kill both of you before she was brought to trial. Her attempts to have you killed were discovered and prevented in a covert police operation. Despite the risks involved to both of you, you gave undertakings before me to give evidence on behalf of the prosecution in Ms Withers’s trial in terms of the witness statements admitted as Exhibit 6, for you, Mr Callinicos, and Exhibit 9, for you, Ms Stoupas. The evidence will be of great importance in Ms Withers’s trial and will vitally assist her prosecution. The statements contain evidence of facts that are not proved by other prosecution witnesses.
Being prepared to assist the prosecution is relevant in a number of ways:
· The fact of being prepared to give this evidence is of great significance in itself and entitles both of you to a substantial discount on your sentence.
· Giving evidence against a co-accused exposes you to the risk of abuse and mistreatment, or worse, at the hands of your fellow prisoners while you are in custody. You will therefore have to spend your time in prison in protective custody. The conditions in protective custody are highly restrictive. In consequence, your time in custody will be more difficult than most.
· On the issue of remorse, there are few demonstrations more compelling than agreeing to give evidence against a co-accused in the circumstances I have described. You have both entered early pleas of guilty and have otherwise signified your remorse. Giving this assistance, despite the risk, goes further – it shows you are both prepared to do what you can to demonstrate your great remorse for the terrible things you did to Mr Shellard.
By reason of these matters you will receive a sentence significantly less than would otherwise have been imposed, although, given the severity of the offence that you both committed, a term of immediate imprisonment is nonetheless called for.
[paragraph deleted upon revision].
[paragraph deleted upon revision].
The impact of Mr Shellard’s tragic death upon his family has been very considerable. He has three children, Jenny Shellard and Sarah and Claire Lechina. He has a former wife, Jane Shellard, and a brother, John Shellard.
Victim impact statements were provided by or on behalf of these persons, which were read out in open court at the hearing of your plea on sentence. I am mindful of the impact of Mr Shellard’s death on all of these persons, but especially upon his children, who have suffered the irreplaceable loss of their father. As Jenny said, the night she lost her dad, she lost a piece of her innocence that will never come back. In the way she described in her statement, her life has changed forever. The same may equally be said of the deceased’s two other children. Claire’s mother tells me the shine in Claire’s eyes has gone dim and Sarah’s trust in human nature has been grossly undermined because of the crimes committed upon their father.
The statement of the deceased’s brother John shows how difficult it has been for him to deal both with his brother’s death and with the financial winding up of his affairs. The deceased’s former wife Jane has lost the father of her daughter and lives with the upsetting knowledge of how her former husband suffered.
These various impacts of the crimes you committed upon Mr Shellard must be reflected in the sentences I impose upon you, taking into account that your criminal responsibility is confined to the crime of manslaughter committed in the circumstances I have already described.
I will now deal with your personal circumstances.
Mr Callinicos, you were born on 29 October 1962 and are aged 44 years. Your parents are elderly and you have three sisters, all younger than yourself. You grew up in Melbourne in your early years but went to Greece with your family aged 10 years. Your father is of Greek origin. You returned to Australia aged about 17 years, your parents following a little later. You completed your schooling to Year 12 in Melbourne, but did not pass all of the subjects. You had been living with your uncle, and did so for a few years longer. You enrolled in but did not complete an electronics course for two and a half years. Over the years you have had a number of jobs in various capacities, some for significant periods up to one and a half years. You have been engaged to marry twice, but neither relationship worked out. You have been recently informed you have a child aged 10 years, whom you have not met. You have not progressed far in your life because of an addiction to drugs - amphetamines and heroin – which began when you were aged 21 or 22 years.
You have a large number of prior convictions from 1988 to 2004. The offences are virtually all for trafficking or possessing drugs, or for drug related property offences. Between June 1991 and August 2004 you served at least eight terms of imprisonment ranging from four to 12 months, totalling over four years in prison. For many years you lived the life of a drug addict and a petty criminal with little respect for the law. You have consistently failed to get the message that your drug addiction and criminal offending was leading you to personal disaster and you now stand accused of the crime of killing another human being – a charge to which you have pleaded guilty. Nothing in your criminal history to date approaches the severity of this crime.
The evidence reveals you to be a gentle giant with no violent disposition.
Your mother gave oral evidence on your behalf and told me the family stood by you now as they had done in the past. She also confirmed your remorse for having killed Mr Shellard. A letter from your father revealed you have come from a hard-working, law-abiding family who will stand by you despite what you have done.
Your aunt, Elva Noonan – your mother’s sister – also gave evidence on your behalf. She spoke fondly of your tenderness towards your grandmother when she was dying of cancer. John Franklin, a member of the Salvation Army, and your cousin, swore an affidavit which was tendered on your behalf. I think it sums you up so well I will quote it in full:
“Stan presents himself as a softly spoken individual, who appears to have a child-like view on life, and does not seem to display the same level of maturity as his peers. He does however have a very gentle nature. I have never witnessed Stan being aggressive or displaying violent behaviour. Stan has a very supportive set of parents, who are pleased to have Stan help in the maintenance of their rental properties. Although Stan has had a somewhat colourful past, I believe him to be caring and thoughtful in nature. Stan seems to have a very strong family bond, and seemed to be getting his life on track, up until the unfortunate incident before the court at present. Stan seems to be easily influenced, and in my opinion would benefit from immersing himself with positive role models.”
Dr Paul Grech gave me a comprehensive clinical report which he supplemented with oral evidence. Dr Grech saw you on five separate occasions, and also spoke with your previous general practitioner and correctional officers, the mother of your daughter and various members of your family.
The main points to emerge from Dr Grech’s evidence are these:
· You are physically and mentally well at present, although you are taking antidepressants and Bupremorphine, and you may have a mild underlying mood disorder.
· You have a two decade history of polysubstance abuse, particularly of amphetamines and heroin.
· You are appalled at your conduct in committing the crime to which you have now pleaded guilty, which resulted from you allowing yourself – when drug addicted – to be influenced and duped by Ms Withers, whose false stories about the deceased you stupidly believed.
· At no stage did your plans involve the possible death of Mr Shellard.
· You have a propensity to fall under the influence of females, who are easily able to distort your judgement.
· You are of average intelligence.
· You are not of violent disposition, and the present charge is out of character.
· You are strongly attached to Ms Stoupas and hope to marry her and have children with her on your release.
· You seem committed to remaining drug free and assisting Ms Stoupas to do so, but whether you can follow through with this intention is an unknown variable.
Ms Stoupas, I will now turn to your personal circumstances.
You were born on 30 April 1975 and are aged 31 years. Your entire family was in court to support you during the hearing of your plea on sentence – your father John, mother Joy, brother-in-law Tim, older sister Nicole and twin sister Alexandra. They visit you in prison regularly, and your relationship with them has improved since you have been able to be honest about your drug addiction and your involvement in the crime to which you have now pleaded guilty. Your family are building houses on a property in the country. You can live with them there on your release if you want to, and your present intention is to do so.
You left school aged about 15 years and have only done your schooling to part-way through Year 10. At aged about 16 years you left home to go to live with a friend on Phillip Island, where you started living off the dole, drinking and smoking marijuana and getting into minor criminal trouble. After a couple of years you returned to Melbourne and started taking hard drugs – speed and heroin – at about age 20 years.
You have had periods when you have been stable, working and not taking drugs. For example for a time you worked with your father as a mechanic. And you worked at the Kingston Club for about nine months, doing a hospitality course. You enjoyed the work and were good at it. You were also once in a stable relationship, but that broke down. In consequence you attempted suicide. Following that you fell in with the old crowd, going back into full-blown drug addiction.
This was the context in which you met Mr Callinicos. You were existing to use drugs – scoring at every opportunity - and estranged from your family. Mr Callinicos sold drugs to you and a former boyfriend, then you became friendly with him, and maintained a similar drug-based lifestyle with him. Through Mr Callinicos, you met Ms Withers, and soon fell under her influence when she gave you money and gifts, as I have already described.
Like Mr Callinicos, you did not intend to kill Mr Shellard. You thought you were going to his house to assist Ms Withers to tie him up, force him to sign documents and show him what being tied up was like. You reacted to him biting your finger by hitting him twice in the head with a heavy object, as I have described, and your actions substantially caused his death. You had no part in the administration of the heroin to the deceased by Ms Withers, which was also a substantial cause of his death.
You too have a criminal record, but nowhere near as long as Mr Callinicos. You faced court on five occasions between 1993 and 2004 on using and possession charges, and on drug or alcohol related property, assault and driving charges. You were sentenced to bonds, community based orders, fines or suspended terms of imprisonment, all of which you complied with. You had not served any term of imprisonment before being remanded on the charges arising out of Mr Shellard’s death. You history does not suggest you have a propensity for violence.
You too have expressed genuine and deep remorse for your part in killing Mr Shellard. Your offer to plead guilty to the charge of manslaughter came at an early stage and is consistent with this remorse.
You have used your time in prison as best as you can to achieve personal rehabilitation. You have undertaken various education and employment courses at Kangan Batman TAFE, and five certificates that were tendered show your good progress in this regard. You are living drug free in prison – as proved by the urine tests results that were also tendered.
Ms Kate Earl is a psychologist who provided a report on your behalf. These are the main points she makes:
· You are benefiting greatly from the courses you are doing in prison, which include attending mathematics classes once a week.
· You can work with your father on release.
· You are currently drug free, but do take antidepressants.
· You are of average intelligence, but a poor student academically, which led to some isolation at school.
· You have an overly dependent-type personality, which exposes you to poor judgement and manipulation at the hands of others.
· You are extremely remorseful about killing Mr Shellard, being frequently tearful about this, and suffering from nightmares associated with this event.
· If you are to significantly reduce your chances of re-offending, you will need psychological and psychiatric support to assist in:
· preventing relapse into drug dependency;
· alleviating depression;
· addressing unresolved issues related to feeling dependent and abandoned; and
· encouraging employment.
This completes what I want to say about both of your personal circumstances. I will now deal with the sentencing considerations that are important to your cases and then announce your sentences.
The gravity of the crime is a very important consideration. Killing another human being – even unintentionally – is deserving of the strongest condemnation. Both of you, acting in concert with each other and Ms Withers, entered Mr Shellard’s house and tied him up, during which he was struck to the head with an object.
Mr Shellard was completely innocent in relation to these events. The experience of being woken from his sleep and assaulted by three people and treated in this manner would have been unexpected, terrifying and demeaning. Yet he was only subdued because you took advantage of finding him asleep and then it was three against one.
General and specific deterrence are significant sentencing considerations. Those who would commit such a crime, and both of you, must be made to appreciate there will be serious criminal consequences.
There is an unusual combination of very strong mitigating factors in your cases which must operate to reduce what would otherwise have been sentences for long periods of imprisonment and also to reduce the non-parole periods.
Your guilty pleas and profound expressions and actions of remorse are important considerations. You have both gone beyond just being remorseful, and this must count for a reduced sentence. I have already dealt with other matters that count in your favour in this regard and I will not repeat those here.
The sincerity and quality of your remorse suggest to me you have reasonable prospects of rehabilitation. Neither of you have a propensity for violence. Both of you have very supportive families. There is reason to think you are both ashamed of the life you have been living to date, which led to your killing Mr Shellard, and want to move on positively from here. Although I must be guarded about how successful you may be in implementing your good intentions, I think those intentions are realistic and sincere and count in your favour.
Mr Callinicos, I have considered whether you should be dealt with more leniently because Ms Stoupas struck Mr Shellard, not you. Ms Stoupas, I have considered whether you should be dealt with less severely than Mr Callinicos because your criminal record is not as extensive. After taking into account the various considerations, which are various and countervailing, I have concluded you should both receive the same sentence for the crime you together committed.
Mr Callinicos and Ms Stoupas, I will now announce your sentences.
Mr Callinicos, for the crime of killing Peter William Shellard at North Caulfield in Victoria on 7 May 2005, you will be sentenced to a period of imprisonment of 6 years. You will serve a minimum term of 3 years and 6 months before being eligible for parole. You have served a period of pre-sentence detention of 361 days exclusive of today and I direct that this be reckoned in the calculation of the period of your imprisonment.
Ms Stoupas, for the crime of killing Peter William Shellard at North Caulfield in Victoria on 7 May 2005, you will be sentenced to a period of imprisonment of 6 years. You will serve a minimum term of 3 years and 6 months before being eligible for parole. You have served a period of pre-sentence detention of 592 days exclusive of today and I direct that this be reckoned in the calculation of the period of your imprisonment.
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