Papadopoulos v The Queen
[2014] VSCA 63
•4 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0109
| PERICLES PAPADOPOULOS |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | NETTLE and WEINBERG JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 April 2014 |
| DATE OF JUDGMENT | 4 April 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 63 |
| JUDGMENT APPEALED FROM | R v Papadopoulos [2013] VSC 134 (King J) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to manslaughter – Applicant stabbed fellow rooming house occupant in chest following petty dispute – Sentenced to 11 years and six months’ imprisonment with non-parole period of nine years – Whether manifestly excessive – Applicant had prior conviction in Greece for ‘voluntary homicide’ (murder) – Prior offending occurred after similarly minor dispute – Limited evidence of remorse – Specific deterrence particularly significant – Sentence not wholly outside range reasonably available – Application dismissed.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | The applicant appeared in person | |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I invite Weinberg JA to deliver the first judgment.
WEINBERG JA:
The applicant, Pericles Papadopoulos, now aged 68, pleaded guilty before King J to a charge of manslaughter. He was sentenced to a term of 11 years and six months’ imprisonment, with a non-parole period of nine years. He now seeks leave to appeal against that sentence, essentially upon the sole ground that it was manifestly excessive.
Circumstances surrounding the offending
The applicant, Andonios Mirtsopoulos and George Karkanis together occupied a boarding house intended for use by elderly Greek men at 13 Thompson Street, Clayton. They had lived there together for a considerable time.
The applicant and Mirtsopoulos did not get along at all. In the six months leading to the stabbing of the deceased, they argued repeatedly over petty matters. Other than that, they rarely communicated.
Two weeks prior to the instant offending, Mirtsopoulos expended considerable effort in digging up the fenced-off back garden of the premises. It was his intention to plant vegetables in that area. On the night of 19 October 2011, the applicant planted his own tomato and pepper plants in the very area that Mirtsopoulos had cultivated for his own use. Not surprisingly, this did not go down well with Mirtsopoulos.
On the following evening, 20 October 2011, Mirtsopoulos was preparing dinner in the outside kitchen area. The applicant and Karkanis were both in the kitchen, having their evening meal. Karkanis finished eating and went out into the backyard. Mirtsopoulos approached Karkanis and made it clear to him that he was
upset with the applicant for having unilaterally assumed control of the area that Mirtsopoulos had previously dug up.
Mirtsopoulos then called upon the applicant to come outside. When the applicant emerged from the house, he was holding the remnants of a pear, and had in his left hand a knife approximately five inches in length. He had been using that knife to slice, and eat, the pear.
The applicant and Mirtsopoulos exchanged words with each other as they walked towards the newly cultivated garden area. The conversation became heated, and the pair began to shove and punch each other. The applicant was, all the while, still in possession of the knife.
Karkanis pulled the pair apart. He then turned and began to walk away. The applicant took a number of steps away from Mirtsopoulos before turning around and advancing towards him. By this stage he had switched the knife from his left to his right hand. At the same moment, Mirtsopoulos took a step towards the applicant. The next thing that happened was that the applicant stabbed Mirtsopoulos once, with the knife.[1]
[1]The sentencing judge did not accept defence counsel’s submission that Mirtsopoulos had fallen or tripped towards the applicant and had impaled himself on the knife. Her Honour was obviously correct to do so. Not only did that account fly in the face of the evidence given by Karkanis, but, if it were true, the applicant would almost certainly have had a complete defence to the charge of manslaughter.
Karkanis then separated the pair again. He saw that Mirtsopoulos had blood coming from his chest. Shortly thereafter, Mirtsopoulos was pronounced dead at the scene.
The course of the plea
Senior Counsel who appeared for the applicant on the plea outlined something of his background. He noted that the applicant had been born in Greece, and had come from a very poor family. The applicant left school at 16 because his family could not afford to provide him with any further education.
The applicant first came to this county in 1969. He married in 1974 and his wife gave birth to a daughter shortly thereafter. The family moved to Greece in 1978 where, subsequently, they had a second child, a son.
Critically, for present purposes, it was noted that in 1992 the applicant had been convicted, in Greece, of what was described as ‘voluntary homicide’, but was, in effect, what we would term 'murder'. The applicant was sentenced to life imprisonment. He eventually served 16 years in prison in Greece until his release in 2008.
The background to the applicant’s conviction in Greece was summarised by her Honour in her sentencing remarks. She noted that the victim was the applicant’s cousin. They had been hunting, and then attended a tavern and consumed some alcohol. A minor argument broke out between them. The applicant left the tavern, went to the boot of his motor car, retrieved a gun and shot the victim dead. As her Honour aptly said, this too was a ‘petty argument leading to a loss of life’.
The applicant speaks only limited English. It was submitted on the plea that he would be largely isolated in prison in Australia, and that he would have little or no support from anyone outside the prison system.
A witness was called to give evidence in support of the applicant. He was a friend. It seems that he had visited the applicant whilst he was in the remand centre. His evidence was that the applicant had told him that he wished the incident had never occurred, and that he was sorry for what had happened. Perhaps tellingly, he said that the applicant wanted to know why all of this had happened to him. Nonetheless, in the opinion of the witness, the applicant seemed very remorseful.
At the time of the offending, the applicant was recovering from injuries sustained when he fell off a ladder, several months earlier. He had been hospitalised as a result of the fall. He was not in good health.
It was submitted on behalf of the applicant that notwithstanding the gravity of his offending, there was some basis for extending leniency. It was said, for example, that unlike some other cases, the applicant had not intentionally armed himself with a weapon in anticipation of a confrontation.
It was conceded that, having regard to the prior conviction for murder, specific deterrence was a relevant sentencing factor. It was submitted, however, that this had to be balanced against the fact that the applicant had led a generally blameless life, apart from that earlier incident. It was also submitted that the applicant's age should count in his favour in assessing the weight to be given to specific deterrence.
It was noted that the applicant's children live in Greece and that things had been particularly difficult for them. The applicant spoke to them by phone from time to time, but not all that frequently.
The Crown submitted, on the plea, that this was a particularly serious case of manslaughter. The evidence showed that, after an initial altercation, the applicant and Mirtsopoulos had been physically separated by Karkanis. There was no reason whatever for the applicant thereafter to have attacked the deceased, still less any reason for him to have stabbed him in the chest.
The Crown further submitted that general deterrence was particularly important in this case. Members of the community had to be discouraged from seeking to settle disputes through the use of force.
The Crown finally submitted that, having regard to the applicant's prior conviction for murder, specific deterrence was a paramount sentencing consideration. Notably, the circumstances surrounding the earlier offence were, in some respects, not dissimilar to those that led up to this particular killing.
Sentencing remarks
King J accepted that the applicant's personal circumstances had to be taken into account. She noted, however, that during the course of his interview with the police he appeared more concerned with his own welfare, and the fact that he would have to spend time in prison, than with the death of the deceased. She concluded that there was little indication that he had gained very much insight into the wrongfulness of his conduct.
Nonetheless, her Honour was prepared to treat the applicant's plea of guilty, and what he had told his friend as to his own feelings about what had occurred, as some limited evidence of remorse.
Her Honour was also prepared to accept that imprisonment might be more difficult for the applicant than it would be for others given that he had no family ties in this country. She noted, however, that he had had only limited contact with his children in the past. She accepted that the applicant's age would also make imprisonment more burdensome, and indicated she would take this into account to a limited degree.
In the end, what seemed to have weighed most heavily upon her Honour's mind in sentencing the applicant was the fact that he had now killed two people in two separate incidents, each one over an apparently trivial dispute. Mirtsopoulos, too, had been elderly. He was unarmed. The applicant's behaviour in arrogating to himself the right to plant his tomato and pepper plants in the garden that Mirtsopoulos had earlier prepared was itself provocative and arrogant. No doubt the two men were intent on being as unpleasant and difficult towards each other as they could be. However, there was little, if anything, that could be said by way of mitigation so far as the objective gravity of the offending was concerned.
King J made it clear that, contrary to the submission put forward on behalf of the applicant, specific deterrence was a particularly important sentencing factor. So too, of course, was general deterrence. Her Honour was obliged to impose a sentence that was just, and appropriate, in the circumstances. That sentence had to denounce the offending. Accordingly, nothing less than a lengthy term of imprisonment was warranted.
The application before this Court
The applicant's written case, which was prepared by counsel, acknowledged that nothing less than a significant term of imprisonment could reasonably have been expected. The prior conviction for murder was obviously the single most damaging aspect of the applicant's situation.
On the other hand, it was noted that the offence was not premeditated. Moreover, there was no suggestion, having regard to the Crown's willingness to accept a plea to manslaughter in answer to the charge of murder, that the applicant had intended to kill, or cause really serious injury to the deceased. The applicant had ultimately cooperated with the police by surrendering himself to them, and turning over the knife that he had used in the stabbing. The written case also drew attention to the applicant's personal circumstances and, in particular, his age. Counsel noted that the sentencing judge had found some degree of remorse, and had said that she took into account as well the utilitarian value of the plea of guilty.
The written case relied heavily upon the statistics contained in the Victorian Sentencing Manual regarding sentencing for manslaughter. Counsel accepted that sentences for that offence varied greatly because each case turned to a large degree upon its own particular facts. Nonetheless, it was submitted that the sentence of 11 years and six months imposed in this case was unduly severe.
Counsel noted that the Sentencing Snapshot for manslaughter dated May 2013 showed that during the period between 2007 and 2012, some 86 offenders had been sentenced for that offence. The most commonly fixed non-parole period was somewhere between six and seven years. Yet the applicant had received a non-parole period of nine years. It was submitted that this, of itself, suggested that the non-parole period, at the very least, was outside the range for offending of this nature.
The Crown responded to the applicant's written case by referring to what this Court said in R v Abbott:[2]
… The ground of manifest excess will only succeed where it can be shown that the sentence was 'wholly outside the range of sentencing options available' - FTN.1 to the sentencing judge.
The 'range' for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.[3]
[2](2007) 170 A Crim R 306.
[3]Ibid 309.
The point of the quote is that the ground of manifestly excessive will only succeed if the sentence imposed is wholly outside the range available to the sentencing judge.
The Crown further submitted that the sentencing judge had paid careful attention to all of the factors relied upon in mitigation, including the applicant's age and personal circumstances, his plea of guilty and his 'limited remorse'. It submitted that her Honour had been correct to regard the applicant's prior conviction for murder as being of great significance. That prior conviction made specific deterrence a particularly important sentencing factor.
Finally, the Crown submitted that the applicant's reliance upon sentencing statistics did not demonstrate that this sentence was outside the range reasonably available.
Conclusion
Both the head sentence of 11 years and six months, and the non-parole period of nine years could reasonably be regarded as being at the upper end of the range for offending of this nature. Had the applicant not been previously convicted of murder, in circumstances that were in some respects similar to those surrounding the commission of the present offence, there might have been some force in the applicant's submission that this sentence was excessive.
However, in my opinion, a prior conviction for murder, in circumstances where the applicant responded to a petty argument by procuring a gun and shooting the deceased, weighs heavily against the submission that the present sentence was outside the range reasonably available. The applicant is not to be punished a second time for his previous crime. However, the conviction is an important aggravating feature, and emphasises the need for deterrence, and protection of the community to feature heavily in the disposition of this matter. In short, I am not persuaded that either the head sentence, or the non-parole period, fell wholly outside the range that was reasonably open to the sentencing judge. I would accordingly refuse leave to appeal.
NETTLE JA:
For some time before today, the applicant was legally represented by solicitors and counsel. As Weinberg JA has observed, whilst the applicant was so represented, a written case settled by counsel was filed on the applicant's behalf. Consequently, I have paid close attention to that document and, of course, to the Crown's written response to it.
Some time before today, the applicant ceased to retain his solicitors and counsel and thus he appeared before us today unrepresented. With the aid of his sworn interpreter, however, he advanced a number of oral submissions. Those submissions were directed, in part, to disputing certain of the sentencing judge's
findings which bore on the nature and gravity of the offending. Those submissions were unsubstantiated and thus must be rejected.
The other area of oral submissions concerned the significance of the applicant's previous conviction for voluntary homicide. In effect, the applicant contended that the sentencing judge erred in taking that into account because it occurred so long ago. It will be apparent from what my brother Weinberg has said, that that submission was also misplaced and thus must be rejected.
For these reasons and the reasons given by my brother Weinberg, I would dismiss this application.
SIFRIS AJA:
I agree with Weinberg JA.
NETTLE JA:
The application for leave to appeal against sentence is dismissed.
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