R v Aydin
[2008] VSC 388
•30 September 2008
| g | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1689 of 2008
| THE QUEEN |
| v |
| HAKAN AYDIN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 July 2008 | |
DATE OF SENTENCE: | 30 September 2008 | |
CASE MAY BE CITED AS: | R v Aydin (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 388 | |
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CRIMINAL LAW – Sentence – Plea of guilty – Manslaughter – Remorse – Co‑operation with authorities – Undertaking to give evidence – Sentencing Act 1991 (Vic) s 6AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert QC | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Michael J. Gleeson & Associates |
HIS HONOUR:
Hakan Aydin you have pleaded guilty to one count of manslaughter. Your plea of guilty to this count arises out of the killing of Christopher John O’Brien at Noble Park between 1 March 2007 and 8 March 2007. The maximum penalty for the offence of manslaughter is 20 years’ imprisonment.
The Circumstances of the Offence
You have a significant criminal record which I will deal with shortly, but in November 2006 you were released from prison. You were in need of a place to live and having met Dimitrios Likiardopoulos in prison, you finished up residing with his family for two or three months.
The circumstances of the offence were as follows. The deceased, Christopher O’Brien, was 22 years of age at the time of his death in March 2007. He had an intellectual age of approximately 14 years. He had been residing in a Special Care residence in Chandler Road, Noble Park, but in October 2006 moved out of those premises and, having met Darren Summers, moved into his premises at 1261 Heatherton Road, Noble Park. Nearby to those premises were the premises at 1288 Heatherton Road, Noble Park, where you and members of the Likiardopoulos family lived. That included Dimitrios Likiardopoulos, who is charged with the murder of Christopher O’Brien and will stand trial in February 2009, and John Likiardopoulos, who has also pleaded guilty to the manslaughter of Christopher O’Brien.
It appears that illegal drugs were regularly and freely available at this address and in that connection from time to time a number of people went to the premises presumably to purchase drugs. You participated in what psychologist Bernard Healey described as “alarming” drug taking.
The circumstances leading to the death of Christopher O’Brien began in early 2007 when Darren Summers, who has pleaded guilty to being an accessory to manslaughter in respect of the killing of O’Brien, had alleged that O’Brien had removed a silver coloured bracelet belonging to his girlfriend from the house at 1261 Heatherton Road. Challenged about the theft, the bracelet reappeared but Summers conveyed the information about the alleged theft by O’Brien to the Likiardopoulos family.
Some time later a friend of the Likiardopoulos family, Con Nearhos, complained that his mobile phone had either been lost or stolen at the Likiardopoulos premises at 1288 Heatherton Road. The initial suspect for that theft so far as the Likiardopoulos family was concerned was Shalendra Singh. Singh was a regular visitor to the premises for the purpose of using drugs.
Upon it being concluded that Singh was a suspect for the theft of the mobile phone it is sufficient to note that he was made to sit in a chair in the dining/lounge room area of the house where he was verbally and physically abused by persons in that household. The physical assaults on him included being struck with fists, kicked, made to do humiliating acts, burnt with cigarettes and having methylated spirits wiped on his injuries. This so-called punishment took place over a two‑day period. Ultimately, Singh persuaded other members of the Likiardopoulos household that he was not the thief of the mobile phone and that in fact Christopher O’Brien, the deceased, was the person who had stolen it. The allegation of theft of the bracelet to which I have earlier referred added some corroboration for this allegation.
In the early part of March, Christopher O’Brien was asked to attend the Likiardopoulos house at 1288 Heatherton Road. Once he was there he was also subjected to most serious assaults over a two‑day period which ultimately caused his death. The extended viciousness and cruelty of this attack on Christopher O’Brien almost defies belief. In addition to the physical assaults, he was spat on and verbally abused. The various assaults included punching to the head and face and kicking to the body. Ashtrays and sticks were also apparently used to assault the deceased and the assaults were carried out by a number of people. Included in that number were Dimitrios Likiardopoulos, John Likiardopoulos and yourself. On the evidence on which the Crown case is based, and which he does not appear to dispute, John Likiardopoulos assaulted O’Brien with a hammer along his spine, neck, elbows and ankles. He obtained toxic substances from under the kitchen sink which the deceased was forced to drink and he also forced him to eat chilli flakes. As though this was some form of entertainment, the attack on Christopher O’Brien was punctuated with drug taking and sleeping by those taking part.
The forensic anthropology report on the remains of the deceased revealed large number of skeletal defects which included a large number of fractures to the left and right scapula, a number of vertebrae and a number of ribs. Whilst some of the defects observed may have occurred after death the evidence suggests traumatic injury to the lumbar vertebrae.
As you describe in the statement you made to police on 15 August 2007, you took your turn in assaulting Christopher O’Brien without there being any reason or explanation for you doing so. Your counsel submits that you had no grudge or hostility toward O’Brien and no reason to assault him. Your brain being close to “drug-addled” was the nearest we got to an explanation.
In the early hours of 7 or 8 March 2007 it became apparent that the deceased was in a serious medical condition. He died whilst in the lounge room area of the house, despite efforts by several people – and you say you were one of them - to revive him through the use of cardiopulmonary resuscitation.
The evidence indicates that Dimitrios Likiardopoulos took charge of the situation and presented a firearm which was pointed at everyone in the house saying that he would “never go back to prison for this fucking dog” and “I’ll kill anyone who fucking talks”. He supplied a red sleeping bag from within the house and ordered you and John Likiardopoulos to take the deceased in a car and bury his body in the Dandenong Mountains. A car was borrowed and the mission commenced. You were unable to find an appropriate location as you drove around with the body of the deceased in the car and ultimately you discarded the body of the deceased b y throwing it into the Dandenong Creek off Pillars Road, Bangholme.
Back at the premises at 1288 Heatherton Road, those present were directed by Dimitrios Likiardopoulos to clean the house to rid it of any forensic evidence of the assault and killing of the deceased. No person was permitted to leave the premises and Dimitrios Likiardopoulos made it clear to everyone that he was in charge and his approval would be required before anybody could leave.
The skeletal remains of the deceased were found in the Dandenong Creek wrapped in the red sleeping bag on 14 August 2007.
After the death of Christopher O’Brien, I am told you moved out of the premises at 1288 Heatherton Road. Your counsel submits that from this point you lived in fear. This is supported by what you told police in your record of interview, and also by the statement of Gerard Little, who deposes that he was told by Dimitrios Likiardopoulos to “find [Aydin] and top him so he can’t talk and dog us in”.
Your counsel submits that much of what occurred in this dreadful incident was a result of the hold that Dimitrios Likiardopoulos had on you and the other participants. That appears to be supported by the evidence that you rely on and there is a strong chorus that Dimitrios Likiardopoulos was very much in control of what was happening. However you remained and participated, presumably attracted by the prospect of yet more available drugs and the fact that you were in no condition to make sensible choices.
Victim Impact Statements
A number of victim impact statements were read to the Court by the Senior Crown prosecutor. They included statements from Christpher O’Brien’s Aunt, Carmel O’Brien; Alicia Bateman; his brothers Scott O’Brien, Shannon O’Brien, Lucas Adams and Wayne O’Brien. Finally, his mother Beverley O’Brien also filed a statement. The documents tell a harrowing tale of trauma and loss and an inability to comprehend why such an attack happened in the first place. I have taken them into account in determining the sentence I should impose on you.
Record of Interview and Provision of Information
On 14 August 2007, you were arrested and interviewed by police. You gave a what the police accept was a truthful and detailed account of what occurred and then later that night you went with police to 1288 Heatherton Road where you gave the police more detail by reference to the premises themselves. Following the information you provided the remains of Christopher O’Brien were located. On 15 August 2007, you signed a statement which incorporates the details of what you had told police in your interview and at the committal proceedings in May of this year you pleaded guilty.
Plea of Guilty and Assistance Provided to the Authorities
Your counsel submitted that you have pleaded guilty at the earliest opportunity, and you have co‑operated fully with the police. I agree with that submission. The co‑operation you have provided to the authorities is a matter of significance in the sentence to be imposed on you. You made full admissions as to your involvement in the death of Christopher O’Brien when you were arrested by police. You assisted police in recovering O’Brien’s body, and took part in a re-enactment. These acts were done in the knowledge that they placed you and your family at risk from other participants in the assault on O’Brien.
During the course of the plea on your behalf, Senior Detective Campbell from the Homicide Squad of the Victoria Police gave evidence on this topic. He described your assistance as having been very significant for the investigation into O’Brien’s death. Indeed, he gave evidence before me that he doubts that police would ever have found O’Brien’s body if it had not been for your co‑operation. Detective Campbell’s evidence also supports your counsel’s submissions regarding your expressions of remorse and your fear of reprisals.
The Senior Crown prosecutor agreed that the case against Dimitrios Likiardopoulos was built around your evidence and that you are entitled to the maximum discount that I feel “able to afford” to you. You made an undertaking before me to give evidence at any further trial on behalf of the Crown in accordance with your statement to police on 15 August 2007.
The principles in relation to such discounts have recently been referred to by Ashley JA in R v Crossley:[1]
Whilst it has been accepted, in this State and in other jurisdictions, that an informer’s discount may yield a sentence which is more than 50% less than the sentence which would otherwise have been passed, the extent of the discount in any particular case must depend upon all the circumstances. As Nettle JA said in R v Johnston:
... While there are decisions which suggest a discount of 50% or, perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive. In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough. Other relevant considerations include the nature and gravity of the crime, the offender’s moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.
[1][2008] VSCA 134 at [30].
In this case, I have given you the maximum discount that I consider is appropriate in the circumstances. The head sentence I will impose on you represents slightly less than a discount of 50% but the non-parole period represents a discount of slightly more than 50%. It seems to me that a longer period of parole will be to both your benefit and that of the community.
Culpability and Degree of Responsibility
Your counsel submits that you were not involved in the attack on O’Brien during the whole two-day period; during the assault at times you took drugs, and you slept. While your heavy consumption of drugs is not a mitigatory circumstance, it does go some way to explaining your continued involvement in the attack. However, it in no way reduces your culpability.
Your counsel further submits that your involvement in the assault on O’Brien needs to be viewed in the context of the control exerted over you by Dimitrios Likiardopoulos, who was in a position of power. This submission is supported by the evidence of Mr Bernard Healey, Clinical Psychologist, that you were reduced and weak, both physically, mentally and emotionally, largely as a result of your drug use.
The role you played in this offence appears to me to be less prominent than the role played by Dimitrios and John Likiardopoulos. However you did participate and over the extended period condoned and supported what was occurring. As I observed when sentencing John Likiardopoulos, the primary motive for this offence appears to be the attraction of extreme and gratuitous violence. It is hard to imagine that an allegation of minor theft against Christopher O’Brien could have played any real part in the decision to engage in the violent activities that caused his death. The disregard you showed for his welfare and his life means that a severe and fitting punishment must be imposed on you.
Personal Circumstances
You are currently 28 years of age. You were born in Melbourne and are the eldest of five children. Until the age of 12 you resided in a Housing Commission in Dandenong with your family, and attended school at Dandenong North Primary. Your schooling continued into Year 7 at Cleeland Secondary College, but you did not complete that level. At this point you left home and thereafter lived on the streets, in refuges and at various hostels. I have no doubt that life on the streets from such a young age was very difficult.
Your counsel informed me that you left home because your father was an alcoholic and was prone to violent outbursts. I am told you have endeavoured to return home to stay with your mother, who has multiple sclerosis, when that has been possible.
At the age of 15 you began to receive unemployment benefits. You have no secondary education, and your employment record is virtually non-existent. For a period of time you lived on the streets which resulted in you being attacked in all kinds of circumstances and you claim that several of those attacks resulted in you losing consciousness as a result. Your only real interest, I am told, is sketching, drawing and painting, which you have continued whilst in custody.
You had begun using cannabis at the age of 12, and by the age of 16 you were using in the vicinity of three grams a day. In your teenage years you also used ecstasy, amphetamines and ice. At about the age of 17 you were receiving social security payments and were therefore able to get a flat in the Dandenong area.
In early 2007, after a period in gaol, you were offered accommodation with the Likiardopoulos family. There was, as I have described above, a ready supply of drugs at the premises. As your counsel explained, you would hand over any unemployment or social security benefits you received, in exchange for lodging. You had been living at the premises for approximately three months prior to the death of Christopher O’Brien.
You have one son, who is now three years of age. Your son represents, I am told, the light at the end of the tunnel for you. Your son has been able to visit you in gaol.
Prior Convictions
You have, as I calculate it, some fifty‑three convictions from eight court appearances. Five of those convictions are for offences of violence. Your counsel submits that the most significant of those matters arose out of a confrontation with your then girlfriend’s former boyfriend, you was violent and threatening towards you both. Be that as it may, your record is poor and on its own instils little confidence in your future prospects.
Psychological Assessment
A report by Mr Bernard Healey, Clinical Psychologist, was provided to the Court on your behalf, and Mr Healey gave evidence before me. Mr Healey reported that it was likely that you were suffering symptoms of depression over a considerable period of time, leading up to March 2007. That is contributed to by your present circumstances and the fact that you are presently imprisoned in tight security and subject to threats both verbal and written.
He describes your consumption of an “alarming” quantity of drugs including cannabis, amphetamine, “ice”, ecstasy, alcohol and other drugs with a spiralling increase in the quantities. Mr Healey thinks it possible that at the time of these offences you may have been in an amphetamine psychosis.
Remorse
Mr Healey’s evidence supports your counsel’s submissions regarding remorse. It appears that you have endeavoured to write to the relatives of Christopher O’Brien but that could not occur so the letter was directed to the Court and was read by your counsel. The letter is a heartfelt expression of regret and shows an insight into the position of Christopher O’Brien’s family. You acknowledged his innocence of any action which could in any way justify or explain your action or those of his other assailants.
You also expressed your remorse in your record of interview and to the investigating police officers. Detective Campbell from the Homicide Squad, in his evidence before me, said that in his opinion your expressions of remorse were genuine. I accept that there is little more you can do to show how truly remorseful you are for your participation in the assault on O’Brien.
Rehabilitation
Your counsel submits that I should conclude that your prospects of rehabilitation are good both because of the remorse you have displayed and because, in custody, you have endeavoured to make some effort to improve your circumstances. Although the steps you have taken in custody are small they are at least symbolic of your effort.
In many respects, the success of your rehabilitation will depend on the likelihood of your drug dependency being successfully treated. Because of the circumstances of your custody, I am told by Mr Toohey there are difficulties about that which I would urge the authorities to consider. It is impossible for me to assess your chances of dealing with these issues on the information I have. However I agree that, as your counsel has submitted, your display of remorse is an encouraging factor.
Hardship in Serving the Sentence
It is necessary to bear in mind that whatever sentence you serve will be difficult by virtue of your role as a Crown witness and I take that into account in the way that was outlined in Males v R.[2]As Whelan AJA said in that case, when a prisoner is being held in protective custody, the circumstances of that custody are relevant to sentence but the extent to which it is to be taken into account in the prisoner’s favour depends on the source of the need for protection as well as the personal circumstances and likely duration. In your case, you are held in protection because of your co-operation with the authorities and your willingness to give evidence at the trial of the principal offender in this matter. Therefore, the hardship that you will endure in serving your sentence is of significance in the sentence that I impose.
[2][2007] VSCA 302.
You are in protection in prison, as you have been subject to a number of threats. Your counsel has told me that those threats came from Dimitrios Likiardopoulos and his son John Likiardopoulos when you have had some incidental contact with them during your prison movements.
An aspect of your present circumstances is that your outside time is two and a half hours per day and the programs which you would certainly expect to be participating in, in relation to your psychological and drug difficulties, are apparently not available to you. If ever a prisoner was in need of those programs you are that person. You are suffering hardship because of your willingness to assist authorities and it is to be hoped that Corrections Victoria can find a way to assist you as you need it with these programs.
Sentencing Act 1991 (Vic) s 6AAA
Section 6AAA of the Sentencing Act1991 (Vic) which came into force on 1 July 2008 provides that if a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence, the court must state the sentence and non‑parole period if any that it would have imposed but for the plea of guilty.
This case is a particular example of the difficulty created by that section. In this case I am substantially discounting your sentence for a number of reasons – not just your plea of guilty. Had you not pleaded guilty then none of those factors would have been operative. For the purpose of s 6AAA I propose to identify the entirety of the discount I have given you following your plea of guilty, although that discount is also attributable to a number of other factors. To do otherwise would be entirely artificial and would be to fix a nominated figure for the plea of guilty in isolation when obviously it was part of an intuitive figure based on a combination of circumstances.
Conclusion
As I observed in the course of submissions I have struggled to think of a worse case of manslaughter. The conduct which you and others engaged in over the extended two‑day period was nothing short of cowardly, disgusting and brutal. However, you are not without redeeming features so far as the offence is concerned and your co-operation with the police and willingness to give evidence is of particular significance as I have described.
For the crime of manslaughter you are sentenced to be imprisoned for 6 years. I fix the period of 3 years and 6 months to be served before you are eligible for release on parole. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state that but for your plea of guilty and the consequences of that plea which you have willingly undertaken, I would have sentenced you to 11 years’ imprisonment and imposed a period of 8 years before being eligible for release on parole.
I calculate your pre-sentence detention as 322 days including this day.
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