Kyriakidis v The Queen
[2004] WASCA 33 (S)
•12 MARCH 2004
KYRIAKIDIS -v- THE QUEEN [2004] WASCA 33 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 33 (S) | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:148/2003 | 9 FEBRUARY, 12 MARCH & 24 MAY 2004 | |
| Coram: | MALCOLM CJ STEYTLER J MCKECHNIE J | 12/03/04 | |
| 11/06/04 | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appellant resentenced to 4 years 5 months | ||
| B | |||
| PDF Version |
| Parties: | DIMITRIOS KYRIAKIDIS THE QUEEN |
Catchwords: | Criminal law and procedure Sentence Effect of mental condition on sentence Totality of criminal conduct No new principles |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 |
Case References: | Camerson v The Queen (2002) 209 CLR 339 Kyriakidis v The Queen [2004] WASCA 33 R v Payne (2002) 131 A Crim R 432 R v White [2002] WASCA 112 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KYRIAKIDIS -v- THE QUEEN [2004] WASCA 33 (S) CORAM : MALCOLM CJ
- STEYTLER J
MCKECHNIE J
DECISION : 11 JUNE 2004 FILE NO/S : CCA 148 of 2003 BETWEEN : DIMITRIOS KYRIAKIDIS
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WA
Coram : MILLER J
File Number : INS 50 of 2003
(Page 2)
Catchwords:
Criminal law and procedure - Sentence - Effect of mental condition on sentence - Totality of criminal conduct - No new principles
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003
Result:
Appellant resentenced to 4 years 5 months
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr M Mischin
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Camerson v The Queen (2002) 209 CLR 339
Kyriakidis v The Queen [2004] WASCA 33
R v Payne (2002) 131 A Crim R 432
R v White [2002] WASCA 112
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
Nil
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1 JUDGMENT OF THE COURT: On 28 August 2003 the appellant was sentenced to a total of 8½ years' imprisonment, with eligibility for parole, after he pleaded guilty to one count of going armed in public so as to cause terror and to another of armed robbery in company. That sentence was ordered to be served cumulatively upon a term of imprisonment then being served by the appellant. The appellant applied for leave to appeal against the sentences imposed upon him and, on 12 March 2004, leave was granted, the appeal allowed and the sentences imposed set aside: Kyriakidis v The Queen [2004] WASCA 33. The Court did not then re-sentence the appellant but, instead, called for further submissions.
2 This last step was taken primarily because the Court was told by counsel for the appellant that additional psychiatric evidence in respect of the appellant was now available, or could be made available, and that this evidence would shed considerably more light on his condition than did the then somewhat unsatisfactory state of the medical evidence. Additional psychiatric evidence has now been obtained by way of a further report from Dr Fellows-Smith.
3 The appellant's offending behaviour appears to have had its origin as far back as 2 July 2001 when his father died suddenly. The appellant, who was then 28 years old, began using stimulants in order to help him deal with his feelings of grief. This use became heavy, involving the intravenous use of amphetamines and also the ingestion of between 15 and 20 ecstasy tablets per week.
4 On 2 July 2002, the anniversary of his father's death, the appellant committed two offences, one of aggravated burglary and another of unlawful wounding in a so-called "road-rage" incident which followed a period of very heavy drug taking. On 19 May 2003 at the Joondalup Court of Petty Sessions the appellant received a sentence of 12 months' imprisonment with parole eligibility for the offence of unlawful wounding. On 19 September 2003 the appellant received a sentence of 18 months' imprisonment with parole eligibility for the offence of aggravated burglary. The sentencing Judge ordered that the sentence be served cumulatively on the sentences imposed by Miller J, the subject of this appeal.
5 In September 2002 the appellant consulted a psychiatrist, Professor Burvill, by whom he was treated as an out-patient. He was prescribed the anti-depressant drug Cipramil. After his second appointment with Professor Burvill, the appellant and his girlfriend, Melissa Caldwell, decided to take a fishing holiday in Karratha. It was in
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- the course of that holiday that the offences, the subject of these proceedings, were committed on 19 October 2002. The offences the subject of the indictment were set out by Malcolm CJ and Steytler J in Kyriakidis at [7]:
"… The applicant and Caldwell, while driving along a stretch of highway near Shark Bay, noticed a parked car in which two young men were sleeping. It was then still early in the morning. The applicant told Caldwell to videotape his actions. She did so. He walked towards the car, looked inside, and then walked back towards where Caldwell was standing before saying, "Jim's World.com - episode madness". He then walked back to the car with a crowbar in his right hand and a canister of pepper spray in his left hand. He smashed the driver's side window with the crowbar. The two men hurriedly got out of the car. However, the applicant, who had gone round to the passenger side of the car, beat the passenger across the head and body with the crowbar, causing him to suffer five wounds requiring 60 stitches in all. The driver of the car, in an act of desperation, managed to wrest the crowbar from the applicant's hands. This caused the applicant to remove from his pocket a Glock pistol. He was, by then, some metres from the car. He walked back towards the car, fired the pistol in the air and then removed the car keys from the ignition. He walked away from the car before turning back, walking towards it once again, and demanding the return of the crowbar from the driver of the car, who was standing at the driver's side door. The driver returned the crowbar to the applicant who then left the scene in his car, together with Caldwell."
• Charge No CA981 of 2002 - unlawful assault of Andrew Martin Hennessey.
• Charge No CA983 of 2002 - unlawful wounding of John Freitas Pestana.
• Charge No CA984 of 2002 - wilful and unlawful damage to a window of a Mitsubishi Colt sedan Registration No. 8FT 563
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- • Charge No CA985 of 2002 - possession of a Glock semi-automatic sub-compact handgun, two magazines and 17, 9-millimetre calibre rounds, whilst not the holder of a licence under the Firearms Act. The appellant also acknowledged two aggravating circumstances in that the firearm was a handgun and that a number or identification mark had been defaced or removed.
• Charge No CA896 of 2002 - possession of two large fireworks without a licence under the Explosives Regulations.
7 The charge of wilful damage to a window of the car related to the smashing of the car window with the crowbar as captured on the video-tape. That offence was the effective commencement of the criminal conduct. The unlawful assault on Mr Hennessey, who was the driver of the vehicle, consisted of spraying pepper-spray into his eyes and swinging the crowbar into the car window, narrowly missing Mr Hennessey's face.
8 The unlawful wounding of Mr Pestana occurred following the sustained attack by the appellant upon him with the crowbar. The attack resulted in wounds requiring some 60 stitches and associated pain and discomfort.
9 The appellant voluntarily disclosed the location of the firearm to police officers after his arrest.
10 The two fireworks were found in his possession on arrest.
11 The effect of these pleas of guilty, which we are prepared to treat as early pleas of guilty, is that, unlike Miller J, this Court now has before it the totality of the criminal conduct of 19 October 2002.
12 After the appellant's arrest on 22 October 2002, he was remanded to a psychiatric hospital for assessment. That ultimately resulted in the preparation of two psychiatric reports which were placed before the sentencing Judge.
13 The first of these was prepared by Dr Raymond Wu, a consultant psychiatrist, on 2 December 2002. The relevant parts are set out in Kyriakidis at [13] and [14].
14 It is also necessary to refer to Dr Fellows-Smith's report dated 17 February 2003 and set out in Kyriakidis at [15], [16] and [17].
15 Although his recommendation for further investigations had not then been carried out, in answer to questions specifically asked of him,
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- Dr Fellows-Smith expressed the opinion that the appellant was suffering from temporal lobe epilepsy and said that it was likely that he was suffering from a combination of a drug-induced paranoid psychosis and complex partial seizures at the time of the offences committed on 19 October 2002.
16 Following the judgment of this Court, Dr Fellows-Smith reviewed the appellant on 3 April 2004. He also watched the video-tape.
17 In his earlier report, Dr Fellows-Smith had said that the appellant described himself as being paranoid and fearful that he was going to be attacked by people on the road. In his report dated 6 April 2004, Dr Fellows-Smith says:
"On further examination on this point Mr Kyriakidis' anxiety is understandable based on the psychopathology that he was experiencing in the days preceding this offence. Furthermore although it is likely that his use of amphetamines greatly exacerbated his condition[,] his symptoms, in particular his 'fear of being attacked by people on the road,' were part of a recognisable psychiatric condition, temporal lobe epilepsy (TLE) that Mr Kyriakidis has had since early childhood."
18 After referring to a number of hallucinations reported by the appellant as occurring in different sense modalities, and to other aspects of the appellant's psychiatric history, Dr Fellows-Smith said:
"When I examined him on the 3 April 2004 Mr Kyriakidis reported that he had been free of illicit substances since his apprehension eighteen months previously and that he had been treated with an anti depressant, an anti-psychotic and an anti-convulsant however, due to side effects he had been non-compliant of his medication for six to eight months. Significantly the episodes of impaired reality testing had ceased when he was on his medication however he described himself as becoming lonely as he believed he had a special access to the spirit worlds [,] in particular his deceased father during these episodes. Having ceased his anti-convulsant he returned to having approximately two episodes a week of TLE lasting up to thirty minutes occurring on waking or when stressed."
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19 Dr Fellows-Smith also said:
"Mr Kyriakidis' explanation of his motivation for the offence was that it was directly related to his psychological state. In the video he is seen dressed inappropriately for the weather conditions, pacing around in an odd way. He starts by addressing the camera by saying 'Jim's World.com Episode One. Madness.' However instead of appearing frightened of being attacked by people on the road as he states [,] it is he who attacks the occupants of a car with a crowbar and pepper spray. Significantly he drops the crowbar and in quixotic fashion it appears that he is then being assailed by two men, one with a knife and the other with the crowbar, thus acting out his internal psychotic state. It is then that he starts to play out the role of 'hero' in the drama by making noises reminiscent of Bruce Lee in a Kung Fu film and by producing a firearm, which he discharges into the air. He does not appear to point the gun at the two men[,] however he does retrieve the crowbar (his property) from one of the men. Interestingly, he does not take the knife from the other man. Rather he takes the car keys presumably to stop them pursuing him in his get away.
Again somewhat ironically Mr Kyriakidis views his imprisonment as a good thing in many ways. He expressed what I thought was genuine remorse for the men he had terrorised at Shark Bay. Thus there was little evidence of the antisocial traits that one would attribute to such an act. Mr Kyriakidis stated that he found the prison environment as calming, allowing him to lead a more ordered life. He had returned to his year twelve studies, regularly exercised and ate well. He continued to see his partner Melissa now aged nineteen years old and their daughter Anastasia age one year on regular visits."
20 Under the heading "Opinion", Dr Fellows-Smith concluded:
"I understand that an EEG has been performed and that it was normal. This is not inconsistent with a diagnosis of temporal lobe epilepsy as the condition is episodic and might better be detected by a sleep deprived EEG. Clinical evidence based on Mr Kyriakidis' subjective account and my own observations including examination of the video evidence at the time of the offence support the opinion that Mr Kyriakidis has since
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- childhood been suffering from temporal lobe epilepsy and that his offending occurred in the context of his psychiatric condition that was exacerbated by drug abuse.
The drug-induced component of his psychosis appears to have resolved with abstinence from illicit drug use and the prescribing of anti-psychotic medication. He has however relapsed with a return of temporal lobe auras with the cessation of anti-convulsant therapy over the past six to eight months. As his non-compliance with medication is in part due to his lack of psychological understanding into his condition this suggests that there remains a degree of dangerousness in his untreated state. Given the risk of further violent offending I would advocate that ongoing specialist supervision and treatment is necessary should he be released from gaol."
21 There are other matters which bear upon sentence.
22 The appellant pleaded guilty to the offence of going armed in public so as to cause terror at the first reasonable opportunity. While his plea of guilty to the offence of armed robbery in company came later, it was still a relatively early plea. The offences to which the appellant pleaded guilty on 24 May 2004, as we have said, can be regarded as early pleas. They were indicated in the Court of Petty Sessions.
23 The range of offences which comprise the criminal conduct on 19 October 2002 amounts to serious criminal conduct. The sentencing Judge impermissibly took into account some offences which were not before him. They are now before this Court. We would, with respect, agree with Miller J's characterisation as "a senseless unbelievable act of violence".
24 Subject to the effect of the appellant's psychiatric condition, a sentence for this criminal conduct would ordinarily contain a strong deterrent aspect.
25 The appellant was 29 years old at the time of the commission of these offences. He has had previous convictions for common assault and for assault occasioning bodily harm (on 2 February 1994 and 22 July 1997 respectively). He had not previously been sentenced to a period of imprisonment.
26 While in prison, the appellant has made some attempts to rehabilitate himself. He has abstained from the use of illicit substances while in
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- custody and has returned to his Year 12 studies. On the other hand, it is disturbing that the appellant had been non-compliant with his medication for some six to eight months when seen by Dr Fellows-Smith on 3 April 2004. We were informed that the appellant has submitted, on request, to see the prison psychiatrist. The prison has been given a copy of Dr Fellows-Smith's report. The appellant is undergoing a 3 month trial of Epilim.
27 The appellant has been in custody since 6 November 2002. For a period of 15 days prior to that he was remanded on a hospital order for psychiatric assessment. By 19 May 2003 (the date of the unlawful wounding and aggravated burglary convictions) he had served approximately 7 months' imprisonment on remand in respect of the charges of armed robbery and going armed in public so as to cause terror.
28 The appellant's co-offender was sentenced to a period of 20 months' imprisonment in respect of her part in these offences. However, she was then only 17 years of age and was dealt with as a juvenile. We agree with Miller J that no issue of parity with her sentence can arise.
29 Weighed against the undoubted seriousness of the offences are mitigating circumstances in the form of the appellant's pleas of guilty, his psychiatric condition, his reasonable antecedents and his efforts to rehabilitate himself.
30 As to his pleas of guilty, these demonstrate a willingness to facilitate the course of justice and an acceptance of responsibility: Camerson v The Queen (2002) 209 CLR 339. His pleas are also indicative of some remorse. Dr Fellows-Smith was of opinion that the appellant's remorse for those he terrorised was genuine.
31 The appellant's psychiatric illness or psychological condition raises difficult questions. Dr Fellows-Smith is of opinion that the appellant suffers from temporal lobe epilepsy. He maintains this opinion despite the results of an EEG which did not reveal any abnormality.
32 Dr Fellows-Smith's opinion was not based on the contents of the video-tape. However, his observations of the video-tape reinforced his opinion. In significant respects his observations are wrong. It is not apparent from the video that the appellant dropped the crowbar. Rather, the crowbar appears to have been wrested from the appellant's hands by the driver of the car in an act of desperation. Nor was the appellant ever assailed by his two victims. The reverse was only ever the case. Thirdly, neither of the appellant's victims had a knife. While it may be that the
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- reference by Dr Fellows-Smith to "quixotic fashion" suggests that this was how the appellant saw what was happening, there seems to be no evidence to support that proposition.
33 Dr Fellows-Smith's observations on the video must be rejected. However, there is no evidence to reject his diagnosis of frontal lobe epilepsy, formed before he viewed the video, and we accept it. That diagnosis is reinforced by the fact that episodes of impaired reality testing ceased while the appellant was on his medication but returned when he stopped taking it. Dr Wu referred to the fact that the appellant's longstanding symptoms might indicate "a prodromal syndrome" indicating a psychosis and that the appellant had been harbouring a prodromal psychosis during his adolescent years. Dr Wu recommended that the appellant should continue treatment with anti-psychotic medication.
34 In our opinion, the appellant's psychiatric illness is a significant mitigating factor notwithstanding that it must also be accepted, having regard for the evidence of Dr Wu and Dr Fellows-Smith, that the appellant's use of amphetamines greatly exacerbated his condition. That is so because the appellant's mental illness was, on the evidence of Dr Fellows-Smith (even setting to one side his observations based upon the video evidence), a contributing factor to the commission of his offences,
35 Steytler J discussed the dilemma faced by a court in circumstances in which, because criminal conduct was voluntary and intentional, the law holds the offender responsible for his acts, but those acts were contributed to by a mental illness which affected the judgment of the offender: see R v Payne (2002) 131 A Crim R 432 at 442 - 444. It is unnecessary to reproduce that part of the judgment but we adopt the principles therein set out to determine the proper sentence here.
36 The prosecution argues that the mental disturbance does not explain the motivation and trigger for this offending conduct. It was submitted that many people have temporal lobe epilepsy and do not resort to violence. The answer to that submission is in the evidence from Dr Fellows-Smith in his report dated 6 April 2004 to which we have referred.
37 There is considerable room for considerations of general and personal deterrence (particularly having regard for the significant contribution by way of the appellant's drug taking) even though those
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- considerations are lessened, at least to some degree, by the appellant's mental illness. Because the appellant exacerbated his mental condition by his drug abuse, less weight can be given to that condition although it is still a mitigatory factor reducing the appellant's moral culpability to some degree.
38 The appellant's age and antecedents also afford some mitigation.
39 We have noted the early pleas of guilty and give some regard to efforts at rehabilitation.
40 It is important to bear in mind the total sentence. In Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Anderson J said at 6:
"…it is well settled that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences even where more than one sentencing court is involved: Mill v R (1988) 166 CLR 59; R v Todd (1982) 2 NSWLR 517. The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole…"
41 The fact that the offences arose out of the one criminal enterprise must also be considered.
42 In R v White [2002] WASCA 112 the Court recognised that [26]:
"There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion."
Resentence
43 In resentencing the appellant we apply the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 which have the effect of reducing, by one-third, a sentence calculated in accordance with the law before the amendment. We deduct 7 months from the sentence to
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- be imposed for armed robbery to take express account of the time spent by the appellant in custody not applicable to the service of a sentence for any other offence.
44 We make a parole eligibility order for each of the terms of imprisonment which we now impose as follows:
• Count 1 - going armed to cause terror: 8 months.
• Count 2 - armed robbery: 3 years 5 months
• Charge CA981/02 – unlawful assault: 6 months
• Charge CA983/02 - unlawful wounding: 1 year
• Charge CA984/02 - wilful and unlawful damage: 4 months
• Charge CA985/02 - possession of unlicensed firearm: 4 months
• Charge CA986/02 - possession of fireworks: fine $100
45 We direct that sentences on counts 1 and 2 be served concurrently with each other and with the sentences on charges CA981/02, CA984/02 and CA985/02 but cumulatively upon the sentence on charge CA983/02, being that of unlawful wounding.
46 The total sentence is one of 4 years and 5 months' imprisonment. The sentences are to be served cumulatively on the sentence for aggravated burglary imposed on 19 September 2002.
47 We order that the Glock handgun, magazines and ammunition, and the two fireworks, be forfeited to the State.
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