R v Dimitrakis
[2010] VSC 614
•8 December 2010
| IN THE SUPREME COURT OF VICTORIA | (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0143 of 2010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARI DIMITRAKIS |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 26 October 2010 | |
DATE OF SENTENCE: | 8 December 2010 | |
CASE MAY BE CITED AS: | R v Dimitrakis | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 614 | |
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CRIMINAL LAW – Intentionally cause serious injury – Guilty plea – Undertaking to give evidence against co-accused – Circumstances of offending – Psychogenic amnesia – Moderation of principles of general deterrence – R v Verdins [2007] 16 VR 269 - R v VZ (1998) 7 VR 693.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC | Office of Public Prosecutions |
| For the Accused | Mr C. Kilias | Vassis & Co |
HIS HONOUR:
Ari Dimitrakis, on 23 August last, you pleaded guilty before me to one count of causing serious injury intentionally to Chris Soteriou at Fitzroy on 2 January 2010.
Your plea was conducted before me on the 25th and 26th of October 2010. You had indicated that you would plead guilty shortly prior to the committal mention on 9 August 2010 and were committed on that charge to this Court on that date. Your plea is therefore to be taken as an early plea. Further, as a result of your plea, you will no longer be obliged to face your trial for attempted murder. You gave an undertaking to give evidence against your co-accused, Vicky Soteriou, the wife of your victim, and you have received the credit for that.
The maximum term of imprisonment for this offence is 20 years. You have some minor prior court appearances, each without conviction in 1996 and 2001 for which financial penalties were imposed. Those charges will have no influence on the sentence I am about to impose.
The matter was opened at length by Mr Tinney of Senior Counsel, senior Crown prosecutor, and the written form was tendered as Exhibit 1 on the plea. I have called upon it substantially in setting out the relevant facts in this case.
In brief, the offending occurred late on the evening of 2 January 2010 as Mr Soteriou and his wife, Vicky, walked to their car along Rose Street, Fitzroy. You stabbed Mr Soteriou a number of times with a knife. The attack was apparently borne of discussions between yourself and Vicky Soteriou concerning the proposed murder of her husband. It was Mr Soteriou’s 44th birthday. The attack occurred shortly after he and his wife had left a restaurant where they had been celebrating that occasion with friends.
Background to Offending
Mr Soteriou and his wife were married in 1995. They have three children together, a 14 year old daughter and two year old twins. Mr Soteriou was entirely unaware that his wife was having an affair with you, a person who he had met only once briefly in 2009. He is by training, a civil engineer, and was the household’s sole income earner. By all accounts he provided a comfortable lifestyle for his family, acquiring various properties and luxury cars during the marriage. He also had two separate superannuation plans at the time that he was attacked, each with a death benefit of $1 million.
In about 1998, you had married Eileen Dimitrakis. She is your second wife. You lived together in a house belonging to your wife’s mother in Donvale and were living there up until your arrest in January of this year.
You were involved in a sexual relationship with Vicky Soteriou. It was a relationship that commenced in July or August 2007, although you had known each other since 1994. In 1994 you had been involved in an on again, off again intimate relationship with each other for about six months’ duration. That was prior to the marriage of the Soterious.
Some time in early 1995 Vicky Soteriou had contacted you, explaining that her father was forcing her to marry a man she did not want to. However, you had no further contact with her until 2006 or 2007 and you yourself remarried in the meantime. After meeting accidentally in July or August 2007 your sexual relationship recommenced and continued up until the time of the offence.
It seemed a relationship to be fairly described as torrid. There seemed to be some periods of no contact, contrasted with periods of intense contact. At some time in 2009, together you discussed leaving your respective spouses to be with one another. On your own account, Vicky Soteriou told you she wanted to guarantee her financial security when she finally left her husband, which included the completion of the family home at Ivanhoe which was at that time under construction.
On your own account it was about this time, that is early 2009, that Vicky Soteriou first suggested that her husband be killed. You say that she maintained that such a course was necessary as he would not allow her to leave him. You say also that a number of different plans were discussed as to how Mr Soteriou might be killed until about November 2009 when you first discussed with Vicky Soteriou killing the deceased on his birthday, that is 2 January 2010.
In December 2009 you say that she told you that her plans were to take her husband to Alfa Azouri Restaurant in Brunswick Street Fitzroy for his birthday. They would attend the restaurant in company with friends and they would park in the street near the restaurant.
You told police, Vicky Soteriou further told you she and her husband would walk slowly to and from the restaurant. That she wanted you to wait near their car and stab Mr Soteriou to death before taking her handbag in order to add the impression that the attack was unfortunate consequence of a robbery.
On the day of the offence, you told police you met Vicky Soteriou in a park following a text message whereupon she handed you a knife wrapped in a towel and said: “I’ll see you tonight” before driving off. You had also met with her the day previous.
At approximately 9pm that evening, Vicky Soteriou drove her husband to the restaurant, parking their Nissan 350Z in Rose Street Fitzroy, which meets with Brunswick Street close to the location of the restaurant. The couple passed what was otherwise an apparently pleasant evening there in company with friends.
At about 11.40pm the Soterious began to walk back to their car, they had arranged to meet their friends at another establishment in the City. In the meantime you had driven your wife’s mother’s Corolla to the Fitzroy area and parked in Rose Street at a point close to the Soteriou vehicle, waiting for them to return to their car from the restaurant.
As they approached, Mr Soteriou noticed a male in a nearby vehicle reaching down into it. He took not much notice of it. He continued to walk past and once he had, he felt a knife blade cut across his jaw and a stream of warm blood flowing down his neck. It appears that you had tried to cut his throat.
He turned to face you, did not recognise you and said: “Why are you doing this?” You did not respond. He saw that you had a knife in your hand and punched at you a couple of times, at which point you inflicted multiple stab wounds to his upper body.
There were a number of witnesses who either saw or heard various parts of the incident. Two passers-by heard muffled sounds in Rose Street, saw Mr Soteriou and you on the ground, looking as if you were wrestling. They heard Mr Soteriou screaming out: “I’ve been stabbed, I’ve been stabbed”. Both of these witnesses were medical practitioners. They told you that the police were coming and that appeared to have the effect of scaring you off. A number of witness had by that time in fact dialled 000.
At this point you separated from Mr Soteriou, got into your nearby vehicle and drove very quickly from the scene. You had dropped the knife you used to stab Mr Soteriou at the scene.
The male doctor was able to provide a general description of your vehicle as well as part of the registration number. Both doctors present then provided medical assistance to Mr Soteriou who repeatedly expressed the belief that he was going to die, an expression which was heard by a number of witnesses.
The doctors continued to assist him until police and ambulance officers arrived. During this time, Vicky Soteriou had been seen to be crying, hysterical and, at one point, appeared to have fainted and had to be supported by one of the doctors at the scene.
Mr Soteriou was transported by paramedics to the Royal Melbourne Hospital where, upon examination, he was found to have suffered a stab wound to the neck, multiple stab wounds to both sides of the chest, bilateral pneumothoraces and haemothoraces, a lacerated liver with active bleeding, a ruptured right hemidiaphragm and respiratory distress requiring intubation. The injuries were, and it seems an understatement to say, life threatening and required urgent surgery.
Mr Soteriou underwent multiple laparotomies in addition to other treatment, was intubated and remained in an induced coma until 11 January. He was finally discharged from hospital on 23 January 2010, following a total stay of three weeks, having been for a substantial time of that hospitalisation in intensive care.
Having left the scene of the stabbing, you subsequently went and picked your wife up from a place where she had been “playing the pokies” in Donvale.
On the day following the offence, you returned to the home of your wife’s parents in Donvale. There you assisted in hosting a barbecue for immediate and extended family. Late in the evening of 3 January, your health seemed to deteriorate and that continued up until the afternoon of 4 January when at 6.30pm paramedics were called to attend you.
You had appeared to those around you to be unwell and, as it was put, “spaced out”. It would appear that you had ingested excessive amounts of prescription medication, including Xanax. You were taken to hospital where you remained until 8 January, admitted on the basis of a suspected attempted suicide by drug overdose.
On 6 January 2010 whilst still in hospital, you told your sister-in-law you had done something really bad but would not say what you had done.
On 9 January following your discharge, you told another sister-in-law that you had done something really bad but again would not tell her what it was.
Four days later on 13 January, at about 1.45pm, Vicky Soteriou attended the Richmond CIU. During a lengthy conversation she told police about the affair she had been having with you and further claimed that you had been stalking her for a period of months. Vicky Soteriou claimed to be fearful of her own safety and that of her children. She said that she told you of the arrangements regarding her plans to take her husband to dinner, but denied telling you of the location. She also said that following the attack she had visited you at Upton House, which is attached to the Box Hill Hospital, and asked if you had been responsible for the attack, which you denied.
On 15 January, Vicky Soteriou again attended at the Richmond CIU and spoke with police. During these discussions she stated that you and she had planned it all, or that she was involved with you in planning the attack on her husband, at which point the police immediately ceased that interview.
A short time later they began a formal video recorded interview. Whilst declining to elaborate to any great extent, she admitted that she, together with you, had planned and organised the attack upon her husband. She said she had no knowledge of who did the actual stabbing, a remarkable claim I might interpolate in all the circumstances, you having told her that either you would do it yourself or arrange someone else to do it. She said that the crime was planned for her husband's birthday and at that location.
She further stated that she did not really want her husband dead, but you kept forcing her, mentioning it repeatedly and she just thought, yes, all right. She said she was in love with you, you who showed her so much love. She said she was with police in order to say she was guilty, that she did it with you and that she was sorry for it. Objective bystanders would not fail to note that she appears to have taken a view of the matter which is precisely the obverse of your own.
At approximately 4pm on that afternoon, police executed a search warrant at your residence in Donvale where they seized your mother-in-law's Corolla for forensic examination. That examination revealed the presence of Mr Soteriou’s blood at various places in the front passenger seat of the vehicle.
Later in the day, upon your return to the house in Donvale, you were arrested and taken to the Richmond CIU offices where you participated in a video recorded interview with the police. During this interview you, amongst other things, denied any knowledge of the planning and attempted murder of Mr Soteriou. You admitted your affair with Vicky Soteriou but were not honest with regard to when you had last seen her. You claimed to be unaware of what had happened to Mr Soteriou and offered an alibi for the time of the stabbing. You consented to a forensic sample being taken, but refused to participate in an identification parade.
On 15 January, both you and Vicky Soteriou were charged with attempted murder and other offences relating to the incident.
On 25 January 2010, you had a telephone conversation with your cousin Dennis Kronos. That conversation was recorded. During the conversation Kronos told you that Mr Soteriou had seen and could identify you, to which you responded: “I’m confessing now because I don’t give a fuck”. You said that Vicky had told you to be there that night and had organised the whole thing.
In June 2010, you commenced providing a statement to the police which was completed, signed and sworn on 16 July 2010. In that statement you gave a detailed account of your affair with Vicky Soteriou. You claimed that the subject of killing her husband was raised in early 2009 and then repeatedly raised thereafter, you sometimes promoting to her that you had contacts who would kill him. You claimed you had only said this to please her as it would “bring a sparkle to her eye” and result in great sex between you. You told them the plan discussed involved killing Mr Soteriou on his birthday. You said you met Vicky Soteriou in the park on the afternoon of 2 January and that she gave you a knife wrapped in a towel saying: “I’ll see you tonight”.
You claimed to have no memory of anything from that time, that is the time you received the knife until the time you collected your wife from the gaming venue at about 12.15 to 12.30am in the early hours of 3 January. You claimed that you went along with Vicky Soteriou in her verbal sense, but never really thought you would have to kill Mr Soteriou. To your mind, it was all role playing engaged in for the purpose of heightening enjoyment during sex. You said that on the day of the incident you had taken way too many tablets and this affected your memory. You claimed to have no recollection of the events. You said you were not claiming not to have done it, rather whatever you were alleged to have done was done when you were “off your nut” as you put it. You said: “I’m not denying any involvement in this terrible crime, I just do not recall the actual details of the incident the night Chris was stabbed”. You claimed you were sorry for what had happened.
It is fair to say that the plea conducted by Mr Kilias of counsel on your behalf sought to distance you from the offending and your responsibility for it. Challenge, for instance, was made to the question of who and in what circumstances burial plots were secured at the Keilor Cemetery, to which reference had been made in the prosecution opening. Your counsel submitted that you were not involved in the transactions. The depositions present the transactions in an entirely different light. In her statement, Natalie Quinn makes it perfectly clear that both you and Ms Soteriou were involved in two transactions involving the purchase of the grave site.
The matter is not particularly important in its own right, but it does illustrate your attempts to distance yourself from the enterprise and pass blame onto your co-accused. It does have some bearing on what happened next on the plea. You gave evidence before me that your statement of 16 July 2010 is true and correct and gave an undertaking to me to give evidence in accordance with it.
Your statement, which otherwise appeared at p.19 of the depositions, became Exhibit 3 on the plea. You claimed to have consumed a very large amount of Xanax on both the 1st and 2nd of January 2009 and say in the statement that Vicky Soteriou gave you the knife on 2 January. You cannot remember anything until meeting your wife, as I have already indicated.
Whether you were being truthful or not, I find that you did consciously and deliberately stab Chris Soteriou a number of times, intending to cause him serious injury. I find that you did so as part of a detailed plan which you had agreed with your co-accused. Your very active stabbing of Mr Soteriou, in the way that you did, shows your commitment to the enterprise.
Sentencing Considerations
I received a victim impact statement from Mr Soteriou, which was read to the court on the plea by Mr Tinney. The effects on him have been absolutely devastating and also on his family. Almost a year after the event Mr Soteriou still suffers from severe discomfort and tissue scar pain on a daily basis. He is seeing a psychologist, who is treating him for post-traumatic stress disorder, none of which is surprising in the circumstances. He has been unable to resume his position as the director of his own company, including substantial, almost verging on devastating financial loss as a result of these events. He has again, not surprisingly, been diagnosed with depression and suffers continuing emotional trauma. As part of, one suspects, his post-traumatic stress disorder, he has continuing fear for his own safety and, in particular, for his very young twins.
One of the most significant features of the plea is what is to be made of your psychological condition and how it is to be regarded in the process of sentencing you.
Dr Lester Walton, a very experienced consultant forensic psychiatrist, gave evidence on your plea. As part of his evidence a report prepared by him and dated 8 September 2010, was tendered. I quote from that report. This is what was said by Dr Walton under the heading “Opinion”:
“(1) In the context of an intense infatuation which subsequently soured, especially when Mr Dimitrakis was confronted by his lover insisting that he ought to dispose of her spouse, Mr Dimitrakis has reached sufficient states of despair to attempt suicide. However, rather than unremitting depressed mood, his emotions seemed to fluctuate and I’m inclined to make a diagnosis of an adjustment disorder with depression, rather than a major depressive order, and there is certainly no evidence of psychotic disturbance of thought. Mr Dimitrakis is a man of normal intelligence. Apart from self medicating to excess and frank overdoses, Mr Dimitrakis is not a drug abuser;
(2) I appreciate that Mr Dimitrakis has pleaded to this charge which squarely reflects his accepting of responsibility for the misconduct despite his lack of recollection of it. However, simply as a matter of completeness, I state that I can identify no formal mental state defence. Memory loss is quite a common phenomenon associated at high states of emotional arousal and aggression. In Mr Dimitrakis’s case there may well be also an element of psychogenic amnesia, the thrusting from conscious awareness of a thoroughly disagreeable and distressing event. Mr Dimitrakis’s substance abuse around the time of the offending may also have some relevance.
(3) As best I can judge, Mr Dimitrakis’s mental disorder was active at the time of this offending. It is a condition which requires ongoing attention at present. While an adjustment disorder is a fairly common and mild condition, and therefore would not likely be seen as having much relevance in terms of ameliorating general deterrent aspects of sentencing, unlike the narrow concept of mental impairment, those conditions qualifying for Verdins considerations have been interpreted much more broadly and those sentencing principles have been applied relatively. Thus it may be seen by the sentence that Verdins does have at least some relevance in this case. Mr Dimitrakis is experiencing imprisonment as onerous but probably not especially more so than any other naïve prisoner. The fact that he is not given to violence habitually is reassuring. Without doubt he has learned a hard lesson and overall his prospects for rehabilitation would seem quite reasonable.”
In his evidence before me Dr Walton largely confirmed those matters. The law relating to the role to be played by impaired mental functioning in sentencing has been set out by the Court of Appeal in R v Verdins.[1]
[1] [2007] 16 VR 269.
Those principles are that:
“Impaired mental functioning, whether temporary or permanent (the condition) is relevant to sentencing in at least the following six ways;
1. the condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it is to be served.
3. Whether general deterrence should be moderated or eliminated, a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration, likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both.
5. The existence of the condition at the date of sentencing, or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health.
6. Where there is a serious risk of imprisonment having significant affect upon the offender's mental health, this will be a factor tending to mitigate punishment.”
Dr Walton gave evidence that you had attempted suicide by taking an overdose of various medications in April 2009 and December 2009 and January 2010. I interpolate to say that it was submitted that those attempts related almost entirely to the pressure it was said you were under as a result of your relationship. The proposition, however, was supported only in part in a report from your general practitioner, Dr Andrew Daravas who reported that you were more concerned about other matters, such as your business as a limousine driver.
Dr Walton said of your suicide attempts: “They reflect his state of fairly intense distress at the time”. You told him that the earlier attempts had been associated with your attempts to get out of the relationship.
Dr Walton confirmed that your intake of prescription medication, Duramine, might have contributed to your amnesia. Dr Walton confirmed his diagnosis of adjustment order:
“I made a diagnosis of adjustment disorder. It is fundamentally a mood disorder where depression, as you have already heard, has been most prominent and sometimes of suicidal proportions. The condition has eased to some extent and the aftermath of this sad event, partly because it has all come to light and he is out of this predicament in some respects, but of course the anxiety and depression is also promoted by the fact that he remains in a considerable predicament in relation to court and sentencing and so on. So it has improved a little bit, but there are residual symptoms or at least that was the case when I saw him and I would be surprised if it changed significantly in the interim.”
He was separately taken through the six principles set out in Verdins to which I have referred. He said that principles one and two came into play to some degree. He did not think that principles three and four were of consequence. With regard to principle five, he did think that because of your generally depressed state, a term of imprisonment might weigh more heavily upon you than on others. That is not what he had said in his report and when cross-examined about it, he said he did not place much weight on that consideration. He did not regard principle 6 of having significant application in your case.
Dr Walton did say that he regarded you as being more vulnerable than usual to the intense approaches of your co-accused, given your general mental condition. He regarded you now as having some insight into your offending.
Following cross-examination by the prosecutor, it is reasonable to say that the question of your amnesia remains largely unresolved.
In his report Dr Walton said you told him “that he has a memory blank from childhood until he was 13”. That would have been a remarkable circumstance but Dr Walton said when cross-examined that it was really a comment about significant events in his life up until that time.
I am worried about your claim of amnesia because it does seem to be very convenient in the circumstances. I am not satisfied, however, that it can be said that such memory loss as you have experienced is not psychogenic amnesia. That is, you cannot bear to bring the horrific circumstances of your offending to the forefront of your mind. How that fits with your ability to claim an alibi when first interviewed by the police, I'm not entirely sure.
It is clear, however, that taking Dr Walton’s evidence as a whole, you are entitled to some amelioration of sentence for your mental condition.
Personal circumstances
I will deal briefly with your personal circumstances. You are now 49 years of age. You were raised in Richmond. Your father is now 75 years old, however your mother died in 2005. That was an event which had a significant effect on you because you had been very close to her. You have an older brother some 18 months your senior. It can be said that your family is a close one.
Dr Walton reported that there was no family history of any mental disturbance. You first married in 1984, and separated in 1986. You describe the circumstances of that marriage on the basis that you were simply both too young and that your then wife did not want children.
You remarried in 1988 as I have already noted. Attempts by you and your wife to start a family had been unsuccessful, even though you had recourse to the IVF program. It seems that your wife has continued to support you and visit you regularly in prison.
You had been working as a self-employed chauffeur but it appears that that was not a necessarily particularly successful business which was one of the stressors upon you leading up to this event.
You have been not an illicit drug user. You have at times in your younger years been a heavy drinker and now consume only the occasional glass of wine.
You had serious injuries imposed upon you in 1992 when you were struck by a hit run driver when you were riding your bicycle. You appear to have recovered from those injuries.
I have mentioned it already, but it emerged from both the evidence of Dr Walton and on the evidence of your general practitioner that when your depression emerged you did consult your doctor. You have been prescribed, over the years, a variety of anti anxiety and anti depressant medications. You had not, it appears, up until these events been seen by any mental health professionals, although there must have been some examination of you at the time of the three episodes of drug overdose. They are the matters generally.
I received a number of references on your behalf. Your friends and family are very supportive of you. They generally regard this conduct as out of character and, of course, it is clear there is nothing in your past history that is even remotely similar to it.
You have pleaded guilty, which I have already observed. That fact does have to be seen in the context that you no longer face the charge of attempted murder. In general, the case against you for this offence is overwhelming. However, I am compelled, as a matter of law, to give you a lower sentence than I would have on account of your plea, and you will see that I have done so.
You are in a general sense remorseful and you have written a letter to Mr Soteriou which was read to the Court on the plea. I doubt that the letter is much consolation to him. The fact of the matter is that you alone attacked Mr Soteriou and inflicted the various injuries upon him which will affect him for the rest of his life. You can blame your co-accused as much as you like, but by your plea you accept what you did. I accept that you would not have offended in this way had it not been for the relationship. That is simply a statement of fact.
The fact that Ms Soteriou may have been a more dominant partner, given what you actually did such domination does not reduce your moral culpability. It may be an explanation as to how you got into the situation, it does not excuse it. The plan could not have been carried through unless you decided to do so.
You have cooperated with the authorities and agreed to give evidence. The law compels me also to regard that as an important consideration in reduction of sentence and I do so.
I was strongly urged to give a lower than usual non parole period because of the factors personal to you which I have already dealt with in addition to your general prospects of rehabilitation which must be regarded as good. I am satisfied that those matters, insofar as they act in mitigation, go both to the head sentence and to the non parole period and I have applied them as I am obliged to do.
It should be remembered that non parole periods must serve all the purposes of sentencing of a head sentence. It might be useful to remind all of what was said by Callaway JA in R v VZ.[2] He said this:
[2](1998) 7 VR 693 at 697.
“In looking at the facts for itself, the court is to be guided by principle. In particular the High Court has repeatedly affirmed that the purpose of fixing a non parole period is to provide for mitigation of punishment of the prisoner in favour of his rehabilitation through conditional freedom when appropriate. Once a prisoner has served a minimum time that justice requires that he must serve having regard to the circumstances of the offence, it is the public interest that is primarily to be served by what Winneke P called in R v Molvale discrete consideration of those factors which exist in the material before the court which bore upon the question of when the prisoner should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.”
He continued:
“I put to one side cases where a non parole period is inappropriate. In other cases it is apparent from the authorities to which I have referred that a non parole period cannot be fixed unthinkingly by some method of taking two years or one-third and a quarter off the head sentence. All the relevant factors have to be taken into account, they are many and varied. I mention only three of them because they bear on this case. The first is that a non parole period has a penal element. The second is that where either general or specific deterrence is important that objective should not be undermined by an unduly short non parole period. The third which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. The present offences call for condign punishment and general deterrence was a relevant sentencing objective that it was common ground and His Honour found that the applicant was unlikely to offend again. He added that no question of specific deterrence around for consideration. The offences had first come to light in 1981 but the evidence at that stage was insufficient to warrant a prosecution. That may explain why the applicant had not re-offended, but it did not detract objectively from his prospects of rehabilitation, assuming that a head sentence of eight years’ imprisonment was appropriate, I consider a non parole period of six and a half years manifestly excessive in the circumstances of the case.”
That is simply that case.
I have come to the conclusion, however, that yours is not a case that calls for the imposition of a lower than usual minimum term. I do not regard there being anything about your personal circumstances, the circumstances of this offending, or your prospects of rehabilitation which would warrant that course. I have come to the conclusion that a potential parole period of two years would meet the needs of your case.
This is a very serious offence. Mr Soteriou might well have died. As an instance of causing serious injury intentionally, it is at the upper end of the range of seriousness for that offence. It was planned, it occurred in the place and in the circumstances dictated by that plan. Its motivation arose out of your relationship with your co-accused and it had a motive, indirectly at least, of financial gain if carried to its final effect. It was callous and cold blooded. You went and waited at the place arranged to commit it. It cannot be said, as can be often said of offences of this kind, that there was something in the moment that led to its occurrence.
I am obliged to have regard to just punishment, to general and specific deterrence and I have already dealt with the potential amelioration of those matters. I have taken into account all of the matters put on the plea on your behalf.
Would you stand up, please.
I sentence you to be imprisoned for seven years with a non-parole period of five years.
I am obliged to state what sentence I would have imposed had it not been for your plea of guilty. That exercise is entirely theoretical in your case because I am obliged to give weight to your undertaking to give evidence against your co-accused as well.
It has not been the practice in this State to engage in two tier sentencing, and although I am compelled by statute to say what sentence I would have imposed had you not pleaded guilty, it is not open to me, as I understand present sentencing principles, to express what sentence I would have imposed had you not agreed to give evidence against your co-accused.
Doing the best I can I state that I would have sentenced you to be imprisoned for nine years with a non-parole period of seven years had it not been for your plea. That needs to be seen in the context that if it had not been for your undertaking to give evidence against your co-accused the sentence would have been much higher than that.
I declare that 326 days pre-sentence detention be reckoned as having already been served pursuant to this sentence. I order that the statement as to what sentence I would have imposed had it not been for your plea of guilty and this declaration, be entered in the records of the Court.
It just seems to me under all the circumstances it is not appropriate to maintain any suppression order.
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