R v Fantakis; R v Woods

[2018] NSWSC 1700

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fantakis; R v Woods [2018] NSWSC 1700

Hearing dates:

2 November 2018

Date of orders:

08 November 2018

Decision date:

08 November 2018

Before:

Wilson J

Decision:

Elefterios Fantakis

 

For the crime of murder, Elefterios Fantakis is sentenced to a non-parole period of 18 years imprisonment, to date from 3 October 2013, and expiring on 2 October 2031, with a balance of term of 6 years, expiring on 2 October 2037. The total term of sentence is 24 years imprisonment.

 

Andrew Woods

 For the crime of accessory after the fact to murder, Andrew Woods is sentenced to a non-parole period of 6 years imprisonment, to date from 3 October 2013, and expiring on 2 October 2019, with a balance of term of 2 years, expiring on 2 October 2021. The total term of sentence is 8 years imprisonment.

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Carter [1999] NSWCCA 376
R v Hawken (1986) 27 A Crim R 32
R v Previtera (1997) 94 A Crim R 76
R v Wilkinson (No 5) [2009 NSWSC 432
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category:

Sentence

Parties:

The Crown
Elefterios [Terry] FANTAKIS
Andrew Keith WOODS

Representation:

Counsel:
Mr L Lungo as Crown Prosecutor
Mr I Todd for the accused Fantakis
Mr M Picken for the accused Woods

Solicitors:
Solicitor for Public Prosecutions
Ms S Buchanan for the accused Fantakis
Mr A Sahinovic for the accused Woods

File Number(s):

2013/297834 Elefterios [Terry] FANTAKIS; 2013/298107 Andrew WOODS

Publication restriction:

None

Judgment

1. HER HONOUR: On the afternoon of 11 August 2011, Elisha (or Sam) Karmas left his Punchbowl home. Mr Karmas’ work truck and work tools were left unsecured; his wallet was on the kitchen bench; and the radio in the house was turned on. All of the evidence points to a conclusion that, when he left, he did not intend to go any distance, or to be away for any length of time. He never returned, and on each of the well over two thousand days that have passed since then, Mr Karmas’ family has experienced the pain of not knowing what happened to him.

2. Through dogged and determined police work, and from the verdicts of a jury of this Court, what is known is that the offender Elefterios Fantakis murdered Mr Karmas at Punchbowl that day and that, thereafter, the offender Andrew Woods assisted him in concealing his crime.

3. Between 26 February 2018 and 25 May 2018 the offenders stood trial before this Court and a jury of (initially) 15, respectively, for murder, and being an accessory after the fact to murder. Each was found guilty by the verdict jury of 12, and convictions were recorded at that time. It now falls to this Court to sentence the offenders for the crimes of which they have been convicted.

Penalty

4. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and carries, pursuant to s 19A, a maximum penalty of life imprisonment. There is a standard non-parole period (“NPP”) of 20 years that attaches to the offence (in the circumstances of this case), pursuant to the Table to Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. Accessory after the fact to murder is an offence contrary to s 349(1) of the Crimes Act and carries a maximum sentence of 25 years imprisonment. There is no standard NPP.

The Facts of the Offenders’ Crimes

6. I note at the outset that any finding made that is adverse to either of the offenders must be made to the criminal standard of proof beyond reasonable doubt, whilst findings favourable to them require proof to the lower civil standard: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, at [27].

7. Despite almost nine of weeks of evidence at trial from ninety-five witnesses, the facts of Mr Karmas’ murder, and of what happened to his body thereafter, that can be taken as proved to the very high criminal standard, are sparse.

The Background to the Offences

8. The background to these terrible crimes is an event that is itself terrible: the suicide of Nicholas Fantakis, the twin brother of the offender Elefterios Fantakis, on 27 May 2011. Nicholas Fantakis, who had a history of psychosis, hanged himself that day in his mother’s home. The offender Fantakis, who experienced this loss soon after the death of his father, was never able to accept that his twin had killed himself. He became convinced that the death was murder. He raised his concerns with police and made an application for a full coronial inquest.

9. Over the months that followed there was an increasingly bitter dispute between the Fantakis family and Nicholas Fantakis’ de facto partner, Maria Angeles, over his funeral, and his estate and property. The offender Fantakis initiated legal proceedings in this Court over the estate, and there was considerable hostility from him towards Ms Angeles.

10. The offender Fantakis was under considerable pressure in these months: he was supporting his devastated mother, who had found her son Nicholas after his suicide; he was dealing with the grief of both his father’s and his twin’s death; he was involved in litigation with Maria Angeles over his late brother’s estate; and he was burdened with a great deal of debt that, formerly, his brother had been wholly or partially responsible for.

11. Under the impact of these stressors, the offender developed a delusional disorder. By August 2011 his condition was sufficiently marked for the offender’s long-term, if “on and off” partner, Patricia Mantas, to observe that the offender had developed mental health concerns. She noticed him to be depressed and irrational, and he said things that did not make sense anymore (T682). From August, he was discussing conspiracy theories (T683).

12. Into that hothouse of hostility, stress, and anxiety, Mr Karmas intervened as an intermediary (T439-40) in the conflict between the offender and Ms Angeles, intending to assist people he knew as neighbours to resolve their dispute. Thereafter, the offender Fantakis came to believe that Mr Karmas had conspired with Ms Angeles to murder Nicholas, with the aim of securing Nicholas’ property and claiming on his life insurance policy.

13. On 8 June 2011 the offender Fantakis went to a property owned by him and his late brother, situated on Warwick Street across the road from the Karmas home, to remove Nicholas’ personal possessions. Mr Karmas observed what was occurring, and went across the road to speak with him. After Mr Karmas returned home, the offender told Amara Mantas that Mr Karmas had come to the property “snooping”. He said “I really don’t like him”.

14. On returning home after speaking with the offender at Warwick Street that day, Mr Karmas told his daughter Sarah that he was concerned about the removal of property from Ms Angeles’ home, and he telephoned police to report the incursion. Police attended soon after and the offender Fantakis was spoken to (with police satisfied he had committed no crime).

15. The offender Fantakis regarded Mr Karmas’ actions as an unwarranted interference in his affairs. Mr Karmas later told his brother George that the offender had “paid him a personal visit at his front door” as a consequence, threatening him,

I will bury you alive if you say anything more to police”.

16. He told Mr Karmas to “stay out of it” (T339).

17. The situation was reported by Mr Karmas to his friend and neighbour Khaled Charawani. During the course of a walk about two weeks before Mr Karmas was murdered, he told Mr Charawani that the offender Fantakis was “pretty upset” about the property dispute and Mr Karmas’ role in it, and had threatened him (T821-822). (Although Mr Charawani told the jury that the threat reported to him was to kill, I cannot be satisfied of that to the requisite standard, despite the general correspondence on that point with the evidence of George Karmas. I regarded Mr Charawani as an unreliable witness in some respects, and do not accept to the criminal standard those aspects of his evidence that were not first recorded in his police statement, a statement made at a time very close to the events there described.)

The Events of 11 August 2011

18. In the Karmas household, the morning of 11 August 2011 began as an ordinary working day. Although Mr Karmas, who operated his own small building company, was then doing some building work for a friend and client, he was waiting on materials and told his wife, Jennifer Karmas, that he would not be working on site that day. Mrs Karmas left for work at about 8.15am. She had observed her husband to be his usual self, and there was nothing out of the ordinary. Mrs Karmas did not see or speak to her husband after her departure for work.

19. Rebecca Karmas, Mr and Mrs Karmas’ eldest daughter, left home for work at around the same time as her mother. She had seen her father in the family kitchen that morning, and described his mood as “almost jovial” (T213).

20. Her younger sister Sarah was both working and studying at this time. She saw her father in the kitchen a little after 8.30am, making coffee. After having some breakfast, she went to her room to study. From the window of her bedroom she saw her father from time to time as he went to and fro between the house and the back yard. Later, she saw him doing something on his work utility, putting tools away. At around 1pm Sarah went into the kitchen, where Mr Karmas was making a sandwich. They spoke, and then Sarah returned to her room. This is the last clear and wholly reliable sighting of Mr Karmas.

21. At about 3.15pm, and running late for work, Sarah left the house via the backdoor, calling a farewell to her father as she ran. She did not see or hear him, but the radio was on in the kitchen, indicating to her that her father was at home. He did not, however, return her farewell.

22. Mr Karmas had arranged to meet Mr Charawani at 3pm to go for a walk; he did not keep the appointment and, uncharacteristically, he did not contact Mr Charawani about it.

23. At some stage after 1pm, and probably at 1.50pm, Mr Karmas went to the Wilga Street Punchbowl premises of the offender Fantakis. He travelled there from Warwick Street Punchbowl in the blue transit van owned and used by the offender Fantakis, with Fantakis and his labourer. The van was caught on security footage from the premises of a nearby business, JusTiles, entering Wilga Street at 1:52pm (that being the corrected time). It is likely that Mr Karmas was in the van for this journey. Mr Karmas’ prescription spectacles, upon which he relied for reading and other close work, were later found in the glovebox of the van.

24. The Crown has asked the Court to find that the offender Fantakis “lured” Mr Karmas to the Wilga Street property for the purpose of killing him. Whilst I think that that is highly likely, and I find that the offender by that stage harboured thoughts of harming or killing Mr Karmas, as evidenced by the threats that he had made, and some of his later writings, I cannot be satisfied beyond reasonable doubt that he in fact lured Mr Karmas to Wilga Street expressly for the purpose of killing him there. It is at least possible that Mr Karmas volunteered to assist the offender with his building works at Wilga Street, and was murdered opportunistically, albeit in accordance with a simmering wish held by the offender Fantakis to harm him.

25. At the property at Wilga Street, at some time between about 1:50pm and 4.54pm, the offender murdered Mr Karmas by the violent application of force to his person, resulting in his death. This must have occurred, consistent with the verdicts of the jury, at a time or place, or at a time and place, when the offender Fantakis’ labourer, Derek Cheong, could neither see nor hear the attack.

26. The later writings of the offender Fantakis, in which he recorded accounts of having murdered Mr Karmas as Wilga Street, are evidence of that application of force leading to Mr Karmas’ death. That is the central theme of the documents: that there was a violent attack on Mr Karmas at that location. I accept that central theme as proven beyond reasonable doubt. The detail of what is recorded as having occurred, which sometimes varied, is not evidence which can be accepted to the same high standard of proof as establishing precisely what happened to Mr Karmas. I fear that will never be known.

27. After the violence that led to his death, Mr Karmas’ body was loaded into the blue van, resulting at some stage in DNA consistent with that of Mr Karmas, with the likely source blood, being deposited along the rear trim of the driver’s door of the van, either directly or by indirect transfer from the person of the offender Fantakis.

Events of that Evening, including the Involvement of Woods

28. After Mr Karmas was murdered there was, inferentially, contact between the offenders which led to Woods assisting Fantakis to conceal his crime and evade detection by police. Having regard to the evidence relevant to mobile telephone activity, and the cell tower locations in the general area of Parramatta, from which the signals of the telephones of Woods and Mr Karmas travelled on the afternoon of 11 August 2011, I am satisfied to the criminal standard that the offender Woods was in possession of Mr Karmas’ telephone that afternoon. It was he who sent each of the messages received by Maria Angeles, purportedly from Mr Karmas, that afternoon.

29. The messages were designed in part to direct inquiries about Mr Karmas’ disappearance towards Ms Angeles, and away from the offender Fantakis. Their content is consistent with the deluded and wrong belief entertained apparently by both offenders that Mr Karmas and Ms Angeles were involved with each other.

30. An arrangement was (necessarily and inferentially) made between the offender Fantakis and the offender Woods to meet, with Fantakis calling on Woods to assist him in concealing the body of Mr Karmas. The two met pursuant to that arrangement and, travelling in separate vans, each drove a vehicle through the toll plaza at Hammondville on the M5 at about 8.40pm that evening, heading west.

31. The two men drove to the Campbelltown home of the grandmother of the offender Woods, where they remained for some hours, leaving at around 1am on 12 August 2011 in the blue van belonging to the offender Fantakis. The offenders travelled in the van to an area within the Georges River Catchment, off-road having regard to the heavy deposit of mud and other sediment on the tyres and mud-flaps of the vehicle, where, between about 1am and 4.46am, Mr Karmas’ body was concealed.

32. His body has never been found.

33. At trial the offender Fantakis gave sworn evidence as to a journey with Woods in the late hours of 11 August 2011 and into the early hours of the following day taken to dispose of detritus from his late brother’s cultivation of cannabis. That evidence was quite absurd and I, like the jury, did not accept it, even as a reasonable possibility.

34. I am satisfied to the requisite standard that the note, Ex. AG, which was found in the blue van owned by the offender Fantakis and that was undoubtedly written by him, is a reference to the concealment of Mr Karmas’ body. It says,

Wrap in black cotton sheet and tie with black ribbon (shoe lace) tight and through [sic] in the river (Georges river).

35. The offender Fantakis’ evidence about Ex. AG being notes concerning a ritual that a wise woman had recommended to him, is evidence that, from observing the offender as a witness, I regard as a series of patent and transparent falsehoods. These lies themselves provide some support for my conclusion about the meaning of what is recorded on the note.

36. After concealing Mr Karmas’ body, the two offenders returned to Campbelltown where Woods collected his van and the two drove in tandem, being recorded passing east through the Hammondville toll plaza on the M5 at about 4.36am on 12 August 2011.

37. The false account of his movements later given by the offender Woods to police and others, and his attempts to have his grandmother and a long-time friend support those accounts, was intended to obscure both his own involvement, and that of the offender Fantakis, in the concealment of Mr Karmas’ body.

Later Events Relevant to the Offences

38. After Mr Karmas’ death and the secreting of his body, the offenders each took steps to hide their respective involvement, or conducted himself in a way consistent with knowledge of that involvement. Each lied about various things: I have referred already to the lies told by Woods about his movements on the night of 11 August 2011 and those of Fantakis. Fantakis lied to Jenny Karmas about his knowledge of her husband’s movements on that afternoon, not telling her about the drive to Wilga Street. Both lied comprehensively to police, Woods in a formal witness statement.

39. The offender Fantakis took steps to hide the use of his van during the crime, leaving it parked and locked in the driveway of Precision Mechanics on Belmore Road on the morning of 12 August 2011, to keep it away from Wilga and Warwick Streets, where it might have easily been secured by police; and subsequently cleaning it with bleach in an endeavour to remove forensic evidence.

40. The offender Fantakis tried to deflect police inquiries, offering investigators various theories to account for Mr Karmas’ disappearance, including that he had been involved with Ms Angeles, or that he was “chilling on an island somewhere”. None of this was true, and its repetition at the trial could only have added to the distress of his family.

41. As the police investigation progressed, with its obvious focus on the offenders, both came to feel an aggressive hatred to those officers most involved in the investigation, a hatred that became so vitriolic as to result in them discussing plans to discover the home address of, and harm, the officer in charge, Detective Senior Constable Roxanne McGee. Commendably, she diligently persisted in her investigation regardless of the threat to her personal safety.

42. The steps taken by the offenders to cover their respective crimes, or which evidence their consciousness of them, do not make those crimes worse; they provide evidence of them which, like the jury, I accept to the requisite standard.

The Impact of the Crimes

43. All murders are serious: that is why the offence attracts a maximum penalty of life imprisonment. The reason murder is regarded in that way was given devastating expression in the victim impact statements given to the Court by Mr Karmas’ wife and children, and by his siblings [last Friday] on 2 November 2018.

44. Although the offenders were able to listen to those of the statements that were read to the Court that day with no apparent emotion, it is likely that they were the only persons in the courtroom to remain unmoved by the pain and suffering described in them. The grief caused by the murder of Mr Karmas and the concealment of his body is immeasurable; certainly no words the Court can use are adequate to acknowledge the depth of the suffering of the Karmas family.

45. It is a pain that is heightened further because the family have no body to honour, and no grave to visit. They must live with their own imaginings of what exactly happened to Mr Karmas, and the unknowing of where his body now is. Every news item about the discovery of human remains is a fresh source of anxiety and pain, a fresh prompt to the unwelcome thoughts of what might have happened, and to the flood of grief that follows.

46. Nothing this Court can do, no sentence that can be imposed upon the offenders today, can ever address the magnitude of that loss, or make good that suffering.

47. What the Court can do is acknowledge the loss and the suffering that was caused by the murder of Mr Karmas on 11 August 2011, and the later concealment of his body. Although there is no question that the offenders were entitled to put the Crown to proof at trial, and no conclusion adverse to either flows from that choice, acknowledgement can be given to the further trauma the Karmas family has had to endure because of the operation of the criminal justice system itself, and the distress caused by sitting day after day listening to evidence either painful, or offensive, or both. As the long months of the criminal trial wore on, I observed Mrs Karmas and her children to hold themselves with quiet dignity. They are to be admired for their demeanour in the courtroom during what could have only been a highly stressful situation for them, and I express my thanks for it. I extend to the Karmas family my deepest sympathies for the loss of a good man who was clearly deeply loved and greatly respected by his family, and others who knew him.

43. The harm done when a member of the community is murdered is one of the things the Court must consider, in accordance with R v Previtera (1997) 94 A Crim R 76 at [84] – [87].

The Seriousness of the Crimes

The Offence of Murder

49. It is necessary to consider the gravity of the murder of Mr Karmas by an objective assessment of the circumstances of the crime. As I have already said, few of those circumstances have been revealed, principally because of the steps taken by the offender, with the later assistance of Woods, to conceal the body of Mr Karmas, and other evidence of the crime.

50. It is, however, clear that the offender Fantakis, under the sway of a deluded belief that Mr Karmas had been involved in the death of his brother in May 2011, came to blame and hate him, and actively wished and thought about doing him harm. Whether Mr Karmas was killed on 11 August 2011 opportunistically or as the fulfilment of a specific plan for that day, cannot be determined on the evidence. What can be said is that Mr Karmas was killed in furtherance of a wish held by the offender Fantakis to do harm to him, because of what he believed to be Mr Karmas’ role in the death of Nicholas Fantakis, and involvement in the property dispute with Ms Angeles thereafter.

51. On the afternoon of 11 August 2011, between 1.50pm (when the blue van drove into Wilga Street with Mr Karmas likely on board and his spectacles in the glove box of the vehicle), and 4.54pm (when the first text message was sent from Mr Karmas’ mobile telephone to Ms Angeles) the offender attacked Mr Karmas with violence at the Wilga Street property, and killed him. Having regard to the offender’s threats to Mr Karmas after 8 June 2018, and his later expressions of his hatred of Mr Karmas and wish to kill him, I am satisfied that his intent at the time was to kill.

52. The offender thereafter concealed Mr Karmas’ body from all attempts to discover its whereabouts. Despite extensive searches using the resources of both State and Federal police and specially trained dogs, Mr Karmas’ remains have never been recovered.

53. The offender Fantakis has not, to this day, revealed the location of Mr Karmas’ body, no doubt because he does not perceive it to be in his interests to do so. Although providing that information would do much to lessen the suffering of the Karmas family, it would also traverse the offender’s claims of innocence, and end any opportunities he may believe he has to challenge his conviction. For the sake of the Karmas family, it can only be hoped that, at some point, the offender will reveal the information.

54. I have treated the offender’s act in concealing Mr Karmas’ body in the same way Johnson J approached a similar act in R v Wilkinson (No 5) [2009] NSWSC 432.

55. Insofar as it is necessary to assess the gravity of a crime by reference to a range, I would place this offence in about the middle of such a range.

The Offence of Accessory After the Fact to Murder

56. The involvement of the offender Woods was considerable, with his intention being to assist his friend in evading the consequences of the crime he knew he had committed. Having regard to the delusion that Woods apparently shared with Fantakis that Mr Karmas had in some way been involved in the death of Nicholas Fantakis and attempts subsequently by Ms Angeles to secure his estate, it is reasonable to conclude that the assistance he gave to Fantakis was prompted by a degree of animus he had held to Mr Karmas, as well as his friendship for the Fantakis twins.

57. Having learned of the commission of murder by the offender Fantakis, Woods chose to assist him. Since there is no evidence that Woods happened by chance on the murder, or was even in the vicinity of Wilga Street at the time, it must necessarily be that, having discovered that the crime had occurred, he made a decision to aid his friend. He was not in that sense put into a position where he was suddenly called upon by a friend to help and caught by surprise, agreeing to assist without thought. The offender Woods had the opportunity for reflection, and chose to involve himself in very serious criminality.

58. He did so by taking Mr Karmas’ mobile phone to locations in the general area of Parramatta (that being the area in which Fantakis believed Ms Angeles to work), and sending text messages to her, with the intention of giving the impression that Mr Karmas was alive at that time; making it appear as if Mr Karmas was involved in a liaison with Ms Angeles; and deflecting inquiries into the whereabouts of Mr Karmas away from the offender Fantakis, and towards Ms Angeles.

59. Subsequently, and pursuant to an arrangement with Fantakis, he met up with his friend and assisted him in secreting Mr Karmas’ body in the Georges River basin area. Although the offender has submitted that there is no evidence that he had any role to play in selecting the site, the fact that the operation used the home of the offender’s grandmother as a base of operations disbars acceptance of that submission. The irresistible if inferential conclusion is that Woods did have a role to play in determining where to conceal Mr Karmas’ body, at least helping to select the area of the Geroges River Basin within the vicinity of Campbelltown, and the Dan Street property.

60. Thereafter, Woods made a false witness statement to police that was intended to further aid the principal by providing false information about Fantakis’ whereabouts (and his own) on the night of 11 August 2011, and he sought to impose on others to falsely support his claims. In the latter course, he actively encouraged his grandmother and friend Mr Lines to supply false information to police, a criminal offence when given in the form of a statement, as Mr Lines initially did.

61. Like the offender Fantakis, Woods has refused to provide information about the whereabouts of Mr Karmas’ body, again, likely for reasons of self-interest, to avoid traversing his protestations of innocence, and to continue to protect his friend.

62. The assistance Woods gave was such as to stand between Fantakis and the police who were investigating Mr Karmas’ disappearance: R v Hawken (1986) 27 A Crim R 32. It was that assistance, together with the actions of Fantakis in covering his crime, that significantly obstructed the police investigation, and directly led to the considerable delay in charges being brought. Without Mr Karmas’ body having been found, the inquiry was very substantially impeded.

63. This high level of assistance must be regarded as falling towards the upper range of criminality for such a crime. It was not spontaneous and fleeting assistance, it was considered; it involved the disposal of a human body and other aid; it extended over a considerable period of time; and it went a very great distance to aiding the principal in avoiding arrest.

The Offenders’ Respective Mental States as at 11 and 12 August 2011

64. It is not possible for the Court to determine precisely what frame of mind each offender was in at the time of the commission of these offences, but I am satisfied on the balance of probabilities that each had a degree of mental illness, and that their respective illnesses are of direct relevance to the commission of their respective crimes.

65. The offender Fantakis did not see a psychiatrist until 4 November 2011, three months after he murdered Mr Karmas. He was referred by his general practitioner for specialist assistance due to depressive symptoms. At the offender’s November 2011 consultation with Dr Stuart Saker, the clinical psychiatrist who had treated his twin and who also treated the offender Woods, he gave an account of his personal circumstances that included the fact that he was suspected of having committed murder. He was diagnosed with a major depressive episode and prescribed anti-depressant medication.

66. The offender gave further details about the police inquiry into the murder of Mr Karmas in later consultations, expressing “paranoid” ideas about the police. By January 2012 Dr Saker regarded these ideas as “paranoid over-valued ideas about police conspiracy” (T1955). The doctor did not note any formal thought disorder and thought the offender’s insight and judgment were good.

67. Dr Saker continued to regard the offender as having good judgment until October 2012 when he “started to twig” that some of the offender’s paranoid ideas had no justification in reality (T1962). By December 2012, when the offender told Dr Saker that he had a special skill in smelling police officers out, the doctor prescribed anti-psychotic medication to him. The offender did not, however, comply with the medication regime.

68. The doctor’s final diagnosis of the offender Fantakis’ condition was that he had a delusional disorder and depression. He told the jury that people with a delusional disorder often have an incorrect, although non-bizarre, view of a particular thing, but can otherwise function across multiple domains.

69. The conclusions of Professor Greenberg as to a diagnosis of a delusional disorder with a psychotic illness are broadly consistent with those of Dr Saker.

70. Dr Saker told the jury that he had treated the offender Woods from 17 May 2012 to March 2013, and had seen him on at least four occasions on which he had also seen the offender Fantakis. Woods gave a history of having heard voices from the age of 6 years (T1978), and said he was still hearing voices. It seems that he was admitted to the Royal Prince Alfred Hospital in or a little before May 2012, although this admission was apparently based upon his description of being harassed by police and put under surveillance. His description was thought to be delusional (T1977). Woods’ grandmother recalled that the offender was a patient at Campbelltown Hospital for 2 or 3 days in July 2012.

71. Like Fantakis, Woods described being a suspect in a murder inquiry. Dr Saker concluded that the offender Woods demonstrated features of paranoid schizophrenia, with persecutory delusions and auditory hallucinations. He did, however, conclude that his insight and judgment at that first consultation were good. Woods was treated with anti-psychotic medication.

72. In subsequent consultations the doctor found the offender to be still preoccupied with the police investigation, and occasionally hearing voices. His insight and judgment continued to be good.

73. Dr Dayalan saw the offender Woods in October 2018 and, on the basis of that consultation and information derived from Dr Saker’s consultations and Justice Health notes, the doctor concluded that Woods may have been schizophrenic at the time of the commission of his crime, with impaired judgment.

74. Having regard to the psychiatric evidence before the Court, together with, in the case of the offender Fantakis, the evidence of Ms Mantas, I have concluded on balance that each was mentally ill to a degree at the time of the murder of Mr Karmas and the concealment of that crime.

75. Although it is probable that the delusional disorder the offender Fantakis was later diagnosed with worsened over time, it is likely that he had that disorder, probably in a nascent state, by the beginning of August 2011. It was because of his deluded belief that Mr Karmas had been involved in the murder of his brother and had assisted Ms Angeles in June, July and into August 2011 that the offender formed the intention of harming Mr Karmas, when an opportunity presented. However, the offender does not claim and cannot benefit from any suggestion that he did not know the nature and quality of his act or that it was wrong.

76. Even as the offender Fantakis’ condition worsened in 2012 and into 2013, Dr Saker was able to conclude that his insight and judgment were good. His delusional disorder and depression did not prevent him from functioning across many aspects of life; but it did lead him to the false belief that Mr Karmas was a dangerous enemy who had to be stopped. The offender well understood the nature of his act and its wrongfulness, as evidenced by the steps he took to conceal it. His moral culpability for his crime, whilst it must be lessened to a degree by his mental disorder, remains relatively high.

77. Although direct evidence concerning the mental state of the offender Woods in August 2011 is not available to the Court, it is likely, on balance, that he suffered from some form of mental illness, probably including symptoms consistent with the schizophrenia that Dr Saker noted in around April 2012, and which Dr Dayalan retrospectively considers was likely to have been present earlier. Although there is some evidence that the offender Woods suffered from auditory hallucinations from as young as 6 or perhaps 9 years of age, that information is derived largely from the offender’s history to Dr Saker and, later, to Dr Dayalan. It is not supported by any evidence on oath, and the history, certainly to Dr Saker, was given at a time when the offender was unwell. Its reliability is uncertain. I cannot accept the detail of that evidence even on balance, although I do accept that the offender Woods has a history of mental illness.

78. There is also evidence that the offender had used illicit drugs in the period before, at, and after Mr Karmas’ death, and it is difficult to disentangle the effects of illicit drug use from the offender’s mental illness, or even to know whether illness exacerbated drug use or drug use exacerbated illness. Ultimately, I have treated the offender’s drug use as a neutral factor.

79. I accept however, that the offender Woods was mentally ill at the time he rendered assistance to Fantakis, and that his illness contributed to his poorly judged decision to aid Fantakis in the way that he did. There is as a consequence some diminution of his moral culpability but, since his insight and overall judgment remained good throughout according to Dr Saker, who saw him rather closer in time to the events than did Dr Dayalan, it is not substantial. The offender Woods well understood what he was doing.

80. The offenders’ crimes remain very serious, despite some level of contemporaneous mental illness.

The Subjective Circumstances of Elefterios Fantakis

81. The offender did not give evidence before this Court on sentence, although he did give evidence on his own behalf at trial. What the offender there deposed to was, for the most part, false, but I have had regard to such of that evidence as (uncontroversially) addressed his personal and family circumstances.

82. The offender Elefterios Fantakis was born on 18 October 1974. He is now aged 44 years. He comes from a close Greek family although, with his twin brother and father now dead, sadly only the offender’s mother and sister of his immediate family remain.

83. According to evidence led at trial, from the offender, Patricia Mantas, her daughter, and others, the offender has been a very hard working, family oriented man, who was kind and loving towards family and friends. His family remain supportive of him, and his mother was present every day during the trial.

84. The offender has always been fully employed and, significantly, he has no prior criminal history. He is entitled to the benefit of his former good character, and the absence of criminal convictions, as mitigating features on sentence. These are also matters of relevance to his future prospects, to which I will return.

85. The offender’s case on sentence substantially comprised medical reports; I have approached the history given by the offender to the various professionals with a degree of circumspection consistent with what was said in R v Qutami [2001] NSWCCA 353.

86. Tendered on behalf of the offender were reports and other documents principally relating to the offender’s mental health. Included in that bundle, Ex SF1-5, are three psychiatric reports, from Dr Olav Nielssen, Dr Stuart Saker, and Professor David Greeberg, dated 30 October 2018, and 3 April 2017 respectively; and two Justice Health & Forensic Mental Health reports from Doctors Gordon Elliot and Charles Chan of May 2017 and 4 November 2013 respectively.

87. In preparing his report of 30 October 2018, Dr Nielssen conducted two interviews with the offender via audio-visual link on 13 June 2017 and again on 29 September 2017, and had regard to other documentary material supplied to him.

88. Dr Nielssen began his report by canvassing the history obtained from the offender Fantakis during the June 2017 interview. The offender described his upbringing in Sydney and Darwin as “fantastic”, having been raised in a close-knit Greek family with one twin brother, an older sister and loving if strict parents. He described normal developmental milestones, and academic and sporting proficiency at school. The offender attained an honours qualification in building at the University of New South Wales.

89. After graduating from university, the offender worked briefly in high-rise construction, before pursuing full time work in the family business as a builder. He also stated that he had worked for a period as a sales representative for a window covering company.

90. The offender Fantakis told Dr Nielssen that he had been in a relationship of fourteen years duration, which ended approximately one year prior to his arrest as a result of stress connected with the police investigation into Mr Karmas’ murder. He also described how friends and acquaintances had distanced themselves from him in the wake of the police investigation.

91. In the interview, the offender confirmed to Dr Nielssen that, upon his entry into custody, he was diagnosed with a psychotic illness and was treated with the antipsychotic medication, Olanzapine, for a period of two years. He maintained, however, that at around mid-2011 he had seen a psychiatrist, Dr Saker, who had confirmed that he was not suffering from any sort of mental condition. He explained that he had sought the assistance of Dr Saker not because he felt he may be suffering from a similar condition to his late twin brother, who had been treated for psychosis and bipolar disorder, but because of his distress in relation to his brother’s death, which he was adamant was not the result of suicide.

92. The offender Fantakis considered that he did not have any history of psychiatric illness and, as far as he was aware, Dr Saker had neither made a diagnosis of psychiatric illness, nor recommended treatment for any such disorder. He denied ever experiencing symptoms of schizophrenia-like psychosis such as experiencing hallucinations or persecutory beliefs. He stated that he had seen his brother in a manic state and, in contrast, described himself as “a very stable character”.

93. The offender denied any past illicit substance abuse, and maintained that the quantity of cannabis found as his house by investigating police had belonged to either his late brother or father.

94. Dr Nielssen considered that the offender Fantakis did not present as especially depressed in mood, and was without symptoms often indicative of an underlying or emerging psychotic illness, such as odd or incorrect usages of words. He was reportedly oriented as to place and time, with no apparent impairment in his registration of questions or his retrieval of information.

95. Ultimately, Dr Nielssen made a diagnosis of psychotic illness or a form of delusional disorder, although he acknowledged that this diagnosis was based primarily on the history of such a diagnosis made by several other psychiatrists, the history of treatment with antipsychotic medication from Dr Saker and within the Justice Health system, and on his interpretation of the beliefs of the offender in relation to his brother’s death. Other factors contributing to this conclusion were the fact that Nicholas Fantakis had suffered from a psychotic illness, together with the “abnormally litigious attitude” demonstrated by the offender, including sending detailed complaints to the United Nations and other agencies.

96. Although he acknowledged that the offender denied any form of psychotic illness, and presented with few objective symptoms of chronic psychosis, Dr Nielssen considered that,

“…the evidence given by Dr Saker in [the offender’s] trial would appear to confirm that Mr Fantakis had developed a form of psychotic illness by mid 2012, with the fixed bizarre belief that a device had been implanted in his brain, and for which he was advised to commence treatment with antipsychotic medication”.

97. He expressed the belief that,

“…[Mr Fantakis] was very likely to have been affected by a delusional belief at the time of the offence and that abnormal beliefs arising from an underlying mental illness was a contributing factor to his behaviour”.

98. He concluded that the offender Fantakis has “some prospect” for rehabilitation, and recommended ongoing psychiatric review and treatment with antipsychotic medication.

99. As earlier noted, Dr Stuart Saker, a clinical psychiatrist, treated the offender Fantakis in the period between 2011 and 2013, seeing him on 15 occasions. His report, Ex SF2, was also part of the evidence at trial. In it, Dr Saker opined that,

“Over the time I have known Mr Terry Fantakis, and consistent with my clinical notes, it has been increasingly evident that he suffers from psychosis and in particular quite well systematised persecutory delusions as well as depression."

100. Such persecutory delusions centred on his belief that his brother’s death resulted from murder, not suicide. Dr Saker also reported a belief by the offender that he was being bugged or followed, although acknowledged that this may have been accurate in the context of an extensive police investigation as, in fact, it was.

101. The doctor also made reference to a more bizarre delusional belief held by the offender that a transmitter had been implanted in his brain by the NSW Police Force, even going so far as to bring a Computerised Tomography scan result to an appointment which showed an area of calcification on his brain, that supposedly being the transmitter.

102. The offender reportedly declined or was non-compliant with anti-depressant and anti-psychotic medication on numerous occasions.

103. Dr Saker concluded that, in his view,

“[the offender] had no clear evidence of psychosis prior to 2013,”

104. and that

“…any information that comes from Terry Fantakis is highly unreliable as he has untreated persecutory delusions and has an extremely skewed view of reality”.

105. Professor Greenberg, forensic psychiatrist, completed a report dated 3 April 2017 at the request of the Crown, tendered at both trial and sentence (Ex. SF3). Professor Greenberg did not examine or interview the offender Fantakis, and so was reliant on relevant documentation and the report of Dr Saker, to provide adequate material upon which to base his opinion of the offender.

106. Professor Greenberg concluded that the offender Fantakis’ diagnosis, based on his review of the documentation, appeared to be one of Paranoid Delusional Disorder or a Paranoid Schizophrenic Disorder. He opined, however, that on his assessment of the documentary material, a diagnosis of Delusional Disorder was more likely, given that the offender presented with no other active symptoms of schizophrenic illness such as hallucinations, disordered thought, catatonic behaviour or marked negative symptoms.

107. He also opined that,

“[The offender’s] grandiose ideas/delusions may be part and parcel of his bravado in which he outwardly expresses these ideas to ward off the perceived threats (paranoid beliefs)”.

108. In the professor’s opinion, the central issue for consideration was the exact date or time period when the offender began to experience paranoid psychotic beliefs, and was therefore unable to distinguish psychotic fantasies or false beliefs from reality.

109. Professor Greenberg concurred with Dr Saker that the offender’s illness was “emerging” over a period of time prior to the initial diagnosis of an overt psychotic delusion made by Dr Saker on 30 January 2013.

110. He agreed that initially, the various stresses following the death of the offender’s twin brother, his financial difficulties, and his position as a suspect in a police homicide investigation, culminated in the offender suffering from clinical depression and the development of persecutory overvalued ideas.

111. However, he disagreed with Dr Saker’s conclusion that the offender had demonstrated no clear evidence of psychosis prior to 2013. In the professor’s view, while acknowledging the difficulties in making such assessments with hindsight and on documentary evidence alone, he considered that,

“…there is documentation to suggest he appears to present with overt delusional psychotic beliefs perhaps as early as 27 October 2012, approximately 14 months after the alleged offence”.

112. Professor Greenberg also disagreed with Dr Saker’s assessment as to the unreliability of information from the offender Fantakis. He referred to aspects of the history given by the offender as “…likely to be accurate”, and noted that the offender,

“[…] still retains a level of insight but his judgment may be viewed by others as poor”.

113. A further psychiatric report from Dr Gordon Elliot was tendered as Ex SF4. This report was requested by the Court prior to the trial commencing, because of possible issues connected with the offender’s fitness. In compiling his report Dr Elliot conducted a psychiatric assessment of the offender Fantakis on 3 May 2017 and had regard to relevant documentary material supplied to him.

114. Prior to the interview on 3 May 2017, Dr Elliot had assessed the offender Fantakis on two occasions in his role as treating psychiatrist at the Metropolitan Remand and Reception Centre: on 17 October 2013, and again on 12 September 2014. The doctor provided a brief summary of those initial interviews in his report.

115. On the first occasion, Dr Elliot stated that the offender did not present with changes in emotional expressiveness that would usually accompany a diagnosis of schizophrenia and was not formally thought disordered. His overall impression was that the offender was “suffering from delusions that were both persecutory and grandiose”.

116. On the second occasion, the doctor reported that the offender continued to vehemently deny that he had a mental illness, and became wary and defensive when Dr Elliot suggested that he undertake a blood test to monitor the side effects of medication. The doctor again considered that the offender was psychotic, and that his diagnosis was one of delusional disorder.

117. In the intervening period between these two interviews the offender was assessed by various other psychiatrists through Justice Health. Dr Elliot canvassed those assessments in his report, noting that there was some divergence of opinion between a diagnosis of overvalued ideas, and one of persecutory delusional disorder.

118. The offender reportedly did not display the deficits in emotional expressiveness often associated with schizophrenia, was not formally thought disordered, but presented with,

“…elaborate persecutory and grandiose delusional beliefs regarding the NSW Police, the victim of his alleged offence and his brother’s ex-partner, all being involved in the death of this brother as part of a fraudulent insurance claim.”

119. Dr Elliott considered,

“his most likely diagnosis [to be] one of a delusional disorder”.

120. A further letter written by Dr Charles Chan, Psychiatry Registrar at the Mental Health Screening Unit (“MHSU”) at Silverwater Correctional Complex, dated 4 November 2013, is Ex. SF5.

121. In it, Dr Chan relates that “over the last two years”, the offender had remained “preoccupied and fixated on his conspiracies”, relating to his brother’s death, his brother’s ex-partner, and the failures of the police investigation.

122. The doctor reported that since his admission to the MHSU, the offender had consistently denied any mental health issues, and refused to take prescribed Mirtazapine and Olanzapine. His affect was described as “calm, euthymic and reactive”, with no formal thought disorder identified. His beliefs appeared to be “fixated”, with the offender unable to consider alternative explanations.

123. Dr Chan considered the offender to have a delusional disorder. It appears the offender continues to suffer from the same delusions.

124. I have already concluded that the mental illness that the offender experienced at the time of the commission of his crime does have some mitigating impact on his moral culpability for it.

The Subjective Circumstances of Andrew Woods

125. The offender Andrew Woods was born on 26 November 1976. He is almost 42 years old.

126. The offender did not give evidence at trial or on sentence, and what is known of him comes from his self-report to doctors, or the limited information gleaned during the course of the trial. Evidence at trial was that the offender has a supportive mother and grandmother. He has previously held employment as a scaffolder.

127. At the time of the commission of the present offence, the offender had a limited criminal history. His sole conviction prior to August 2011 dates to June 2009, for an offence from October 2008 involving participation in an illegal car race.

128. After Mr Karmas’ death, and at a time when the police investigation into it was ongoing, the offender was convicted in March 2013 of supplying a prohibited drug and possessing a prohibited plant, offences for which he received concurrent 18 month good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

129. In October 2012 he was charged with an offence of driving under the influence of alcohol or drugs, for which – in October 2013 – he was fined and disqualified from driving.

130. His criminal history is limited, this being a mitigating feature on sentence. There is no evidence to justify a conclusion that the offender Woods was formerly of good character, having regard to the evidence of his history of illicit drug use.

131. Tendered on behalf of the offender Woods at the sentence hearing (as Ex. SW7) was a report of Dr Sathish Dayalan, forensic psychiatrist, dated 29 October 2018. In preparing his report, Dr Dayalan conducted a clinical assessment of the offender, on 16 October 2018, and had regard to other relevant documentary material.

132. Dr Dayalan obtained a history from the offender Woods (which is not supported by objective evidence) commencing with his upbringing in Camden, New South Wales. The offender described his childhood as “great”, despite his parents’ divorce when he was two years old.

133. He later disclosed that he had been abducted and sexually assaulted when he was six years old, and had subsequently seen a child and adolescent psychiatrist for a period of one year. He reportedly began to experience auditory hallucinations at this time, in the form of sounds of laughter. He did not believe that he had been prescribed medication.

134. The offender moved out of home at the age of 14. At school, he described performing above the average academically, but admitted to being disruptive in class. After leaving school in Year 11, the offender began work in printing and drafting and, later, as a chef. He also reported having worked in real estate, information technology, in timber flooring, and in scaffolding.

135. The offender reportedly began using cannabis and drinking alcohol on a daily basis at age 15, at which time his auditory hallucinations developed to include the hearing of muffled sounds of words. He said that he consulted a psychologist at this point, but could not recall any details.

136. At the age of 24, the offender Woods reported to Dr Dayalan that he began to use amphetamines on a regular basis. From this point, the auditory hallucinations became more intense. He was prescribed an antipsychotic medication, Olanzapine, by his general practitioner.

137. Alhough he accepted that the intensity of his auditory hallucinations had subsided whilst taking the medication, the offender Woods reported that he had experienced sedative side effects, and so ceased to take it after one year.

138. He admitted to feeling paranoid and hyper-vigilant, being suspicious of neighbours, and said that he would repeatedly check his roof.

139. To Dr Dayalan, the offender Woods admitted that he had been smoking three points of crystal methamphetamine on a daily basis at the time of the offence in August 2011. He had also been using LSD and cannabis approximately once per month. He stated that he had not been compliant with psychiatric medication in the weeks prior to the offence, and reported having experienced auditory hallucinations, persecutory beliefs and paranoia at that time.

140. On 3 May 2012, the offender was admitted to the inpatient psychiatric unit at Campbelltown Hospital. Clinical notes made available to Dr Dayalan, to which he made reference in his report, note that the offender presented with paranoid thoughts, and was suspected of suffering from a psychotic illness. It was suspected that he had been previously diagnosed with schizophrenia. The offender expressed a belief to hospital staff that he was under police surveillance and that his flatmate was involved in this operation. He also claimed that his father had paid the police a sum of $90 000 to “frame him”, and described hearing three voices of a commentary nature.

141. The offender Woods reported to Dr Dayalan having a suspicion that hospital staff had “done something to him”. Following his discharge in May 2012, the offender arranged a CT scan of his brain. He noted an area of white calcification and believed that this was a microchip, inserted by hospital staff. This belief was further reinforced by auditory hallucinations.

142. Following discharge from Campbelltown Hospital, the offender Woods continued to consult a psychiatrist, Dr Saker, up until June 2013. In this period, he was trialled on a number of different antipsychotic medications including Risperidone, Quetiapine and Olanzapine. He admitted that his compliance with these medications had been erratic.

143. In his report, Dr Dayalan canvassed the various psychiatric assessments made of the offender Woods by Justice Health professionals following his incarceration in Correctice Services custody on 5 October 2013.

144. Upon his entry into custody, the offender was noted to have “some grandiosity, query paranoia surrounding court matters, police and lawyers” with an “odd presentation overall”. He was reportedly hearing voices that were “not commanding” in nature, and reported a history of schizophrenia.

145. By 7 October 2013, the offender was noted to have “some improvement” in presentation, and stated that he felt “more relaxed and settled”. He appeared “less grandiose”, but with paranoia still evident in relation to police surveillance, and continued auditory hallucinations.

146. On 13 October 2013, the offender was reviewed by psychiatrist Dr Gordon Elliot (again, the same as assessed the offender Fantakis). To Dr Elliot, the offender stated that he was possibly facing extradition to the United Kingdom, to face charges relating to a letter that he had sent to the Queen concerning his belief that a particular court transcript had been altered without his authorisation. He referred to interference with his brain, and admitted to experiencing auditory hallucinations. The offender Woods was considered by the doctor to be thought disordered and delusional, and a diagnosis of schizophrenia was made. He was commenced on the antipsychotic medication, Aripiprazole.

147. In subsequent psychiatric reviews by Drs Elliot and Henderson, it was noted that the offender was not compliant with treatment and continued to present with psychotic symptoms. On 24 January 2014, it was reported that Woods had had a relapse of auditory hallucinations, having ceased to take recommended medication. A Dr Simonelli reviewed the offender, and recommenced him on Quetiapine, having identified features consistent with schizophrenia.

148. In June 2014, Dr Morgans made a diagnosis of schizophrenia and referred the offender to the Mental Health Screening Unit at Silverwater Correctional Complex.

149. Upon reception there on 21 June 2014, the offender “presented as calm and settled”, with euthymic mood and reactive affect, and logical sequential thought processes. He was reportedly still compliant with prescribed medication, and denied experiencing any perceptual disturbances or paranoia.

150. In subsequent psychiatric assessments, the offender Woods complained of excessive sedation on Quetapine and his dosage was reduced. On 23 September 2016, the offender reported that he was no longer experiencing auditory hallucinations, however also expressed his concern that a “flash drive” had been interfered with by the Department of Corrective Services. Mild thought disorder was noted.

151. On 24 January 2018, the offender was reviewed by Dr Hannon, to whom he denied any ongoing psychotic symptoms. Dr Hannon was of the opinion that the offender suffered from schizophrenia, which was currently under remission.

152. The offender’s improved mental state may be the basis of or have contributed to the improvement of his conduct in custody. Corrective Services case notes that are in evidence record the offender as a management problem in the early period of his time in custody. In more recently recorded notes however, the offender’s work ethic has been praised, and he has been described as an asset to a work team. The offender has worked with a Facilities Maintenance Unit since August 2015 and is the longest serving inmate in the plumbing section of the Unit. He has been appointed a team leader, and is highly regarded. A note for 3 October 2018 describes the offender as obligingly helpful, respectful and polite, and someone who is regularly called upon for his plumbing skills.

153. Dr Dayalan has also observed the offender in recent times. At the time of his assessment on 16 October 2018, Dr Dayalan considered that the offender Woods presented as initially suspicious, but later, “polite and cooperative”. His mood was described as “euthymic”; his affect, “reactive”, with no apparent thought disorder noted. The offender denied any delusional beliefs, but admitted to auditory hallucinations, though of reduced frequency.

154. Dr Dayalan was of the opinion, based on presentation, the history provided by the offender and the information made available to him, that the offender suffers from schizophrenia. In his opinion,

“…it is very likely that at the time of the offence, Mr Woods had had an exacerbation of his schizophrenia due to non-compliance with treatment and use of crystal methamphetamine. His ability to think in a rational manner and carefully consider the consequences of his behaviour would have been impaired at the time of the offence.”

155. He considered that the offender’s symptoms had improved since incarceration due to prescribed antipsychotic medication and abstinence from illicit substances, and recommended continued and assertive follow up from community mental health professionals and participation in a substance use rehabilitation program upon release.

156. Dr Dayalan’s opinion must suffer to some extent from his reliance upon the unsubstantiated history given to him by the offender Woods, particularly as to his drug use and manifestation of symptoms in August 2011.

157. I have already concluded that the offender’s likely mental illness, the extent of which it is impossible to know, has some mitigating effect on sentence, by lessening to a degree the offender’s moral culpability.

Other Matters Relevant to Sentence

Delay

158. The issue of delay in bringing these proceedings to trial was raised as a feature that could mitigate sentence for each of the offenders. Whilst I have given that matter careful consideration, I do not consider delay to be a feature that should operate to lessen the sentences to be imposed upon the offenders.

159. Each was charged on 3 October 2013, a little over two years after Mr Karmas was murdered. The sentences imposed today will be imposed over seven years after the murder, and the secreting of Mr Karmas’ body. In some circumstances, a delay of that extent could lead to a reduction in the sentences that might otherwise be imposed.

158. There is psychiatric evidence before the Court to the effect that each man felt greatly stressed by the police investigation, and I do not doubt that the stress of being under investigation for serious offences caused each a great deal of anxiety in that two years or so, and contributed to a worsening in the mental health of each. However, where it was the criminal conduct of the offenders that gave rise to the need for a police inquiry, and where the steps each took to frustrate that inquiry materially contributed to its length, neither can benefit from delay.

159. Similarly, whilst there was some level of delay in furthering the criminal proceedings that can be attributed to the Crown (being that required to finalise the brief of evidence following charges being brought) the years that then passed without the trial taking place is attributable to the offenders. Each has made applications for adjournments, both in the Local Court and in this Court, or taken other steps to push back both committal and trial. Each supported the applications made by the other. Neither can call delay in aid in those circumstances: R v Carter [1999] NSWCCA 376.

Remorse

162. There is no remorse and no contrition. The complete lack of remorse in the case of each offender is highlighted by the refusal of each to reveal the location of Mr Karmas’ body and, in so doing, give at least some relief to his family. As Mrs Karmas said in her statement to the Court on 2 November 2011, there were two people in the courtroom that day who know where Mr Karmas’ body is. Neither was willing to reveal that information.

Prospects of Rehabilitation

163. The offender Fantakis submitted that his prospects of rehabilitation are good. In favour of that submission he can call upon his former good character, his excellent work history, his supportive family, and his acceptance of some treatment for his mental disorder in recent times.

164. Against that is the offender’s refusal to acknowledge the wrong he has done, or make such amends as he could, notably by telling the authorities where he left Mr Karmas’ body. It is difficult to be confident of rehabilitation where there is no acceptance of wrongdoing.

165. There is also evidence to suggest that the offender still does not accept his psychotic illness and need for ongoing treatment. According to Dr Nielssen, the offender still appears to harbour delusional beliefs concerning his brother’s death, which could elevate the risk posed by him to others upon his eventual release. That is troubling.

166. Having considered all of the relevant factors, I am unable to make any clear finding as to the offender’s prospects for the future, particularly in circumstances where that future is many years away.

167. As to the prospects of rehabilitation for the offender Woods, in his favour is his limited criminal history, and supportive family. It would appear that he has some work skills that may be of benefit to him on release from custody, and he has accepted treatment for his mental illness whilst in custody. There has been improvement in his behaviour in prison, and he is now regarded as a model prisoner, who works well and is courteous to others.

168. However, he also refuses to acknowledge wrongdoing, or make amends for his crime. He refuses to say anything about the whereabouts of Mr Karmas’ remains. His former drug use raises questions as to future drug use and, in particular, the impact of drug use on mental illness, and compliance with a treatment regime. On balance, there is some hope, albeit somewhat guarded.

Deterrence

169. There is a need for the sentence imposed upon each offender to serve the purposes of both specific and general deterrence. The requirement for the latter continues, despite the fact that each suffered with some level of mental illness at the time of the commission of their respective crimes. In the circumstances that apply here, I do not conclude that the offenders are not suitable vehicles for the message of general deterrence.

Special Circumstances

170. Although it is open to the Court to make a finding of special circumstances and alter the ratio of the sentence to be imposed upon each offender by lessening the non-parole period, I do not propose to make such a finding in favour of either the offender Fantakis or the offender Woods.

171. Whilst I accept that the offender Fantakis would benefit from a lengthy period of parole to provide a longer than usual period of supervision, during which his compliance with any necessary treatment regime could be monitored, the parole period will be lengthy as a necessary consequence of the sentence that will be imposed. I see no real need for, or benefit of, an even longer period than that provided by operation of statute.

172. Similarly, whilst the offender Woods may benefit from a lengthier period of supervision to assist him in maintaining any necessary treatment regime, given the sentence I intend to impose there is no real utility in a finding of special circumstances. The statutory period of parole should, in any event, be adequate.

Sentence

173. Having considered all of the available evidence, and noting s 3A of the Crimes (Sentencing Procedure) Act, the following sentences will be imposed.

orders

Elefterios Fantakis

1. For the crime of murder, Elefterios Fantakis is sentenced to a non-parole period of 18 years imprisonment, to date from 3 October 2013, and expiring on 2 October 2031, with a balance of term of 6 years, expiring on 2 October 2037. The total term of sentence is 24 years imprisonment.

Andrew Woods

1. For the crime of accessory after the fact to murder, Andrew Woods is sentenced to a non-parole period of 6 years imprisonment, to date from 3 October 2013, and expiring on 2 October 2019, with a balance of term of 2 years, expiring on 2 October 2021. The total term of sentence is 8 years imprisonment.

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Decision last updated: 08 November 2018