DPP v Power

[2016] VSC 498

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0053

THE DIRECTOR OF PUBLIC PROSECUTIONS

v  

ADAM POWER

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9–12, 15–19, 22–26, 29 February, 1–4, 7 and 30 March 2016
DATE OF SENTENCE:	29 September 2016
CASE MAY BE CITED AS:	DPP v Power
MEDIUM NEUTRAL CITATION:	[2016] VSC 498 (First revision 6 March 2017 – to remove restricted status)

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CRIMINAL LAW – Sentence – Manslaughter – Aggravated burglary – Assault (x 5) – Joint criminal enterprise – “Run-through” of house, late at night, by 13 men armed with dangerous weapons and wearing Rebels Motorcycle Club clothing – Serious examples of manslaughter and aggravated burglary – Offender the primary organiser – No prior convictions – Youthful offender – Good prospects of rehabilitation – Need for general deterrence, denunciation and just punishment – Sentenced to total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC Ms F Holmes	Solicitor for Public Prosecutions
For Mr Power	Mr J Saunders	Melasecca, Kelly & Zayler

HER HONOUR:

1. Adam Power, you have been found guilty by a jury of the manslaughter of Michael Sleiman, of aggravated burglary, and of five counts of assault.[1]

   [1]          The maximum penalties for those offences are: (a) Manslaughter - 20 years’ imprisonment; (b) Aggravated burglary – 25 years’ imprisonment; and (c) Assault – 5 years’ imprisonment. 

1. The offences all relate to an incident that took place on the night of Sunday, 26 January 2014, at 99 Billingham Road in Deer Park.  The incident was the last of a number of confrontations which had taken place between two groups of people, beginning two days earlier.

1. One of the groups was connected to members of the Borg family, including Ben, Matthew and Jessie Borg, all of whom are your younger cousins. 

1. The members of the other group were connected to two brothers, Phillip and Daniel Labanie.  The deceased man, Michael Sleiman, was part of the Labanie group, and lived at the Billingham Road property.

1. Ben Borg was told by an ex-girlfriend that Phillip Labanie had sexually assaulted her.  That allegation set in motion the chain of events that led to these offences.

1. On the evening of Friday, 24 January 2014, Ben and Matthew Borg and some of their associates drove to 99 Billingham Road, where they understood that Phillip Labanie was staying.  The Borgs got out of their cars and spoke to people at the address, including Michael Sleiman.  Ben Borg was yelling out that he wanted to speak to Phillip Labanie about raping his ex-girlfriend.  Some of the Labanie group armed themselves with weapons, but did not use them.  One of the Borgs went to the boot of a car and retrieved a spear gun, which he pointed at the Labanie group.  Once the Borgs were satisfied that Phillip Labanie was not there, they did some “burn outs”and sped off.

1. Phillip Labanie became angry when he was told about the Friday night confrontation.  On the Saturday, after finding out where the Borgs lived, the Labanies and Michael Sleiman drove to the Borg home.  Initially, there was a verbal confrontation between the Labanie group and various members of the Borg family.  Eventually, the confrontation developed into a physical fight, in which the Labanies and Michael Sleiman punched, kicked and tasered Ben Borg.  Ben Borg was subsequently taken to hospital, where he was kept overnight.

1. After that first Saturday incident, there were a series of abusive and threatening phone calls and text messages between the two groups. 

1. The two groups met again, face to face, later on the Saturday.  On that occasion, a large group of somewhere between 20 and 40 people associated with the Labanies (including Michael Sleiman) drove to the Borg house, to confront the Borgs and their supporters (who numbered around 15 on that occasion).  However, as the two groups gathered, the situation was diffused without violence by one of the men who knew people in both groups.  The Labanie group left.

1. When the Friday and Saturday incidents occurred, you were on a hunting and fishing trip, with one of your co-accused, Jamie Fisher.  The Borgs contacted you and told you what had happened.  You and Mr Fisher returned to Melbourne.

1. The next day, Sunday 26 January, Ben Borg was released from hospital.  While you and Jamie Fisher were en route back to Melbourne, a group text message was sent from Jamie Fisher’s phone that said, “Tomoro we gonna go see a few guys that stabbed Adams little cousin come for spin if use want” [sic].  Later, at your request, the Borgs provided you with the names of some of the members of the Labanie group.  By this stage, you were clearly organising the “run-through”, which eventually took place later that evening, rather than the next day (as originally planned).

1. Later that afternoon and evening, Michael Sleiman, the Labanies, and some of their friends had an Australia Day barbeque at 99 Billingham Road.

1. Just before 10.00pm, 13 males wearing dark clothing associated with the Rebels Motorcycle Club walked up Billingham Road as a group, and ran onto the property at No 99.  They were carrying a range of dangerous weapons, including axes, machetes, baseball bats, knives and chains.  You were one of the men in that group and were carrying an axe.

1. There were five people on the front porch at the time: Haythm Yousif, Charlie Eid, Phillip Labanie, Michael Sleiman and his girlfriend, Pamela Anagnostopoulos.  Upon seeing your group entering the property, the four men fled inside, shutting the door behind them, leaving Pamela Anagnostopoulos still sitting on the sofa on the porch. 

1. As the invaders jumped over the front porch railing, Pamela Anagnostopoulos was struck on the legs with a hard object, suffering a physical injury.  She was unable to walk for around two weeks, and was treated by a physiotherapist for about 12 months; she is still suffering psychologically from the events of that night. 

1. Assault charges 1 to 4 relate to causing Messrs Yousif, Eid, Phillip Labanie and Sleiman, respectively, to apprehend the immediate application of force, at the time when they were out on the front porch and fled through the house.  Assault charge 5 relates to Pamela Anagnostopoulos, and includes both the actual application of force, as well as causing its apprehension.   

1. Your group smashed cars and windows, and forced your way into the house by hacking through the front door with an axe.   Once inside, your group went on a terrifying rampage, smashing the building and its contents with their weapons.  

1. Unfortunately, the back door of the house was sealed up because of building works, so the men who fled inside had to jump out of rear windows to escape.  Phillip Labanie, Haythm Yousif and Charlie Eid all managed to escape in that way, but Michael Sleiman was unable to do so. 

1. Michael Sleiman was brutally attacked in the rear bedroom by members of your group, who inflicted multiple blows with different weapons.  His cause of death was described as “stab wound to the chest in a man with blunt head injuries”.  These facts form the basis for the charge of manslaughter (charge 7).

1. The prosecution case in relation to all of the charges was run on the basis of a joint criminal enterprise.  That is to say, the prosecution case was that you were a party to an agreement, arrangement or understanding (an “agreement”) to commit the relevant offence. 

1. Given the way the prosecution case was run, in finding you guilty on all charges, the jury must have been satisfied beyond reasonable doubt that you were a party to the following agreements:

(a)       In the case of each of the assaults (charges 1 to 5), an agreement to engage in an assault;

(b)      In the case of the aggravated burglary charge (charge 6), an agreement to enter the house as trespassers, with the intent to assault people in the house with the offensive weapons that you and others were carrying; and

(c)       In the case of the manslaughter charge (charge 7), an agreement to engage in an assault in the course of which someone might be so attacked with a weapon as to create an objectively significant risk of serious injury.  

1. The jury clearly rejected the defence suggestion that you and your group intended nothing more than a show of force or presence, to intimidate the Labanie group and put an end to the events of the previous days.

1. In sentencing on the basis of a joint criminal enterprise, it is relevant to have regard to the particular role which the offender played in the enterprise.  The prosecution did not allege that you personally attacked Michael Sleiman, or performed any particular acts during the “run-through”.  However, the evidence established, and your counsel conceded at the plea hearing, that you were the principal organiser of the entire enterprise.  In those circumstances, your moral culpability is not reduced because others may have performed some of the acts that were well within the scope of the agreement which you put together.

1. Your counsel urged me to sentence you at the lower end of the range for the offence of manslaughter, because you did not personally intend that someone would be seriously injured.  But, in most cases of unlawful and dangerous act manslaughter, liability is imposed on the accused by the operation of an objective test, rather than because of the accused’s actual intention.  It is still necessary to look at what in fact occurred.

1. These are all serious examples of the relevant offences, particularly the aggravated burglary and manslaughter.  The offending took place at night, in a suburban house, where its occupants were entitled to feel safe.  Thirteen men, similarly dressed in intimidating clothing, carrying a range of dangerous and frightening weapons, swiftly and unexpectedly invaded the property as a united force, noisily smashing things as they pursued the occupants into and through the house.  Although the entire episode only lasted around two minutes, it caused your victims to fear for their lives, and left one person dead and another one physically injured.  It must have been an absolutely terrifying ordeal for those who were present at the house at the time.  The “run through” had been pre-planned, and all of the offending that occurred was within the scope of the enterprise which you had orchestrated (presumably, as some sort of retaliation for what members of the Labanie group had done to your cousins).

1. Before turning to your personal circumstances, I want to say something about the impact your actions have had on others.  Victim impact statements were filed by Michael Sleiman’s parents, his three sisters and a sister-in-law, as well as Pamela Anagnostopoulos.

1. Michael Ali Sleiman was 20 years old at the time of his death.  After he moved out of his parents’ home, he remained close to his family, all of whom are suffering in various ways.  They miss him enormously.  They are particularly traumatised by the thought of what he went through at the time of his death.   Some of them have become anxious or stressed.  Others report having become fearful, hypervigilant about security, or socially isolated.   

1. Many of them are angry because, in their minds, you are responsible for the murder of Michael Sleiman.  While their anger that you were involved in the killing of their son is understandable, you were in fact charged with, and convicted of, the less serious offence of manslaughter, not murder.

1. As well as losing her boyfriend, Pamela Anagnostopoulos suffered physical[2] and psychological injuries as a result of the events of that night.  Since childhood, Pamela Anagnostopoulos has suffered from Tourette’s syndrome, which has worsened as a result of these events and her consequent anxiety and depression.  She now cannot find employment, and panics when she is in public.   Because her handbag and phone were stolen on the night by someone in your group, she worries that her identity is known by her attackers.  She and her family went into witness protection for 6 weeks, and sold their home and moved to a new area, in order to feel safer.

   [2]See [15] above.

1. I turn now to consider your personal circumstances.

1. You were born in December 1990.  You have a close relationship with your mother, and with your younger brother, Jordan.  You have had no contact with your natural father since you were five years old.  Your mother married your step-father when you were 10, which gave you a step-brother, with whom you are also close.  Your maternal grandparents played an active role in raising both you and Jordan.

1. Your primary and secondary schooling at local State schools was uneventful.  You were a popular student, and enjoyed school.  Although an average student academically, you were good at sport, representing your secondary college in both athletics and football.  Your interest in sports continued beyond high school.  You played football for Albanvale Football Club for many years.  You are also a keen hunter and fisherman.

1. You have had a strong and consistent work history, beginning on a part-time basis while you were still at high school.

1. At the end of Year 11, in 2007, you left school to pursue a carpentry apprenticeship.  The apprenticeship was progressing well, but was cut short in 2009 when you injured your left eye.  As a result, you underwent four operations, and spent a couple of months in hospital.  You now have only five per cent vision in that eye.  You subsequently received compensation for your injury, and used it to buy a house.

1. Following the injury, you and your then-girlfriend, Danielle, left Melbourne and went to work on a dairy farm.  In 2012, you moved back to Melbourne.  You struggled to find work given your injury, and took various labouring jobs.

1. In 2013 and 2014, you worked as a hand signaller for a company subcontracted to Metro trains.  After the offending, until the time of this trial, you were working as a landscape supervisor for a labouring company.

1. Your relationship with Danielle ended in mid-2015.  You still enjoy the support of many members of your family, who have attended the various court hearings and visited you in custody.

1. Between January 2015 until your conviction, you attended some counselling with a clinical psychologist, David Read, to help you manage what he described as “low mood, anxiety and unhelpful thinking.”  However, there is no suggestion that you were suffering from any mental health issues at the time of the offending, or are suffering from them now.  Your counsel conceded that none of the principles in Verdins apply to you. 

1. Several people, including former employers and a football coach, provided character references for you at the initial plea hearing.  They described you in positive terms, such as hard-working, honest and reliable.  They regarded your actions as being out of character for you.  That said, not all of your referees (such as your most recent employer, Tim Martenstyn) seem to have been aware of the specific details of your offending, or of your association with the Rebels Motorcycle Club. 

1. Since you have been in prison, you have been volunteering as a disability mentor in the unit at Port Phillip Prison that houses prisoners with a cognitive impairment.  Selection criteria for mentors are strict, and require consistent displays of good and responsible behaviour.  The co-ordinator of the disability program  has spoken in very positive terms about your behaviour and work with that program.  In order to become a mentor, you have also completed courses such as a Peer Listener Program.

1. The first trial of these charges began on 2 February 2016.  However, I discharged the jury on 8 February 2016, because of matters raised by some of the jurors that are not relevant to sentencing.  A fresh jury was empanelled on 9 February 2016; that was the jury that proceeded to verdict against you.

1. You were tried together with three co-accused, whom the prosecution alleged were other members of the group of 13, namely, Jamie Fisher, Matthew Delamothe and Bekhim Muhtari. You each faced the same 7 charges. Part way through the joint trial, I discharged the jury in relation to Mr Muhtari,[3] and ordered that he be tried separately on a later occasion. Matthew Delamothe was acquitted on all charges. Jamie Fisher was found guilty on the aggravated burglary and assault charges, but the jury was unable to reach a verdict on the manslaughter charge. In June 2016, Mr Fisher faced a second trial of the manslaughter charge, but that jury was also unable to reach a verdict.[4]     

   [3]As a result of the prosecution obtaining some additional DNA evidence against Mr Muhtari.

   [4]It is clear from the questions asked by both juries in their deliberations that the juries were satisfied that Mr Fisher was a party to a relevant joint criminal enterprise, but were divided on whether or not he had withdrawn from it prior to the killing of Mr Sleiman.

1. I deferred sentencing you immediately after I heard your plea, as I had expected to be able to sentence you and Mr Fisher at the same time, after his second trial.  However, given that Mr Fisher is now to face a third trial in relation to the manslaughter charge, I decided to go ahead and sentence you.[5]  As you are the first person to be sentenced in relation to this incident, no parity issue arises.

   [5]I delayed doing that for a further period, as your solicitors requested time to put before the court further material relating to your time in custody.

1. There is some evidence that you are now remorseful.  That said, it can be difficult for the court to assess the strength of such evidence where (as here) referees or psychologists merely assert as a conclusion that an offender is remorseful, without explaining what the offender has actually said or done to demonstrate that. 

1. However, within the last week, the court received a letter of apology from you, expressing your regret for what has happened.  In so far as you have expressed the belief that you are at a crossroad in your life, I hope for your sake (and the sake of the community) that you do choose to make the right choices once you are finally released from custody.

1. You have no prior convictions. 

1. You are now almost 26 years old; you were 23 at the time of the offending.  Although that does not make you a young offender in the legal sense, I accept that you were youthful.

1. The law says that the youth of an offender, particularly a first-time offender, should be a primary consideration for a sentencing court where the matter properly arises.  In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.  However,  those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offending. 

1. In sentencing you, I am mindful of the fact that the aggravated burglary and manslaughter offences, in particular, were serious instances of serious offences.

1. I accept that you have very good prospects of rehabilitation: your lack of prior convictions, strong work ethic, family and community support, and absence of addiction or mental health problems, all point in that direction.

1. However, having regard to the seriousness of the offending and your role as the ringleader of the group, I have only given limited weight to your youth.  

1. Although there may not be a great need for specific deterrence, principles of general deterrence, denunciation and just punishment still have a very important role to play in this case.  

1. Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 10 years.  I will treat that as the base sentence.

1. For the offence of aggravated burglary, I sentence you to 7 years’ imprisonment.  I order that 2 years of that sentence be accumulated on the base sentence.  Although the offences were committed as part of the one episode, there should be some accumulation to reflect the fact that the aggravated burglary involved additional criminality above and beyond the fatal assault on Mr Sleiman.

1. For each of charges 1 to 4 (the assaults not involving the actual application of force),  I sentence you to 4 months’ imprisonment.  For charge 5, the assault on Ms Anagnostopoulos, which also involved actual violence, I sentence you to 8 months’ imprisonment.  Given the substantial overlap between the assaults and the aggravated burglary, I agree with both counsel that it is appropriate not to accumulate any part of the sentences for assault.  Accordingly, I order that the sentences for assault be served concurrently with the base sentence.

1. That makes a total effective sentence of 12 years’ imprisonment.

1. I fix a period of 9 years as the period you must serve before becoming eligible for parole. 

1. Further, I declare that the period to be reckoned as already served under this sentence is 490 days, inclusive of today's date.  I direct that there be noted in the records of the court the fact that such declaration was made and its details. 

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