R v Gee
[2006] VSC 231
•28 June 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1503 of 2005
| THE QUEEN |
| v |
| BRADLEY JAMES GEE |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 MARCH, 3-7 APRIL, 10-11 APRIL, 16 JUNE 2006 | |
DATE OF SENTENCE: | 28 JUNE 2006 | |
CASE MAY BE CITED AS: | R v GEE | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 231 | |
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Sentence – Murder – Background relationship – Subjective provocation – Remorse – Prospects of rehabilitation – General deterrence - Less weight given to specific deterrence – Sentenced to 17 years of imprisonment, non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Victorian Office of Public Prosecutions |
| For the Accused | Ms J. Dixon | Victoria Legal Aid |
HIS HONOUR:
Bradley James Gee, you have been found guilty by a jury of 12 of the murder of Angelo Koupanis at Colac on 7 November 2004.
You are an interstate truck driver by occupation and until the murder of Koupanis, you carried on a demanding cycle of work between New South Wales, Victoria and South Australia.
In 2003 you had met and formed a relationship with Belinda Wallace, then a 17 year old girl living in Newcastle (who led you to believe she was somewhat older). She had accompanied you on work trips and you had also seen her in her home town on a regular basis whenever you were able to visit.
In October 2004 she moved to Melbourne with you with a view to setting up a home together. Initially she stayed with a family friend of yours, but after a short time moved to the house of Donna Cann in Werribee. You would also stay at this house when work permitted. The arrangement commenced in late October and the intention was that Belinda would find a house that you could move into with her.
While you were absent driving interstate, Ms Cann's house was visited by one Rodriguez, a former boyfriend of hers, who brought with him an acquaintance from Colac, Angelo Koupanis.
Koupanis and Belinda entered into an immediate sexual relationship. They both concealed this from you and Belinda continued to live principally at the home of Ms Cann where she shared a bedroom with you and you both kept belongings.
Koupanis was in the habit of visiting the Melbourne area regularly from Colac. While in Melbourne it appears that he was involved in ongoing drug dealing and in particular the purchase of marijuana both for his own personal use and for the purpose of sale to others in Colac. Belinda spent time with him on his regular visits to Melbourne and shortly after this commenced you became suspicious of their relationship. You had difficulties maintaining the same level of telephone contact which had previously existed between Belinda and yourself and it became apparent that Belinda was spending time with Koupanis.
In turn you made inquiries about Koupanis and learnt that he dealt in drugs. You warned Belinda against him but she said he was just a friend. The evidence supports the view that Belinda must have had a fuller knowledge of the activities of Koupanis than you did. The evidence as a whole supports the view that Koupanis was dealing in marijuana on a regular basis, and that he himself used heroin. It also shows that he supplied both substances to Belinda and on the day of his death administered heroin to Belinda.
On Melbourne Cup Day Belinda spent the day with you but on the following day went off with Koupanis during the afternoon, while you were working. As a result, she was not there to farewell you before you left that evening on a trip to Adelaide.
You drove to Adelaide that night in a state of anger with both Belinda and Koupanis. This anger was no doubt compounded by difficulties which you experienced in making satisfactory telephone contact with them.
On the Wednesday, after having delivered your load from Melbourne and before picking up a return load in Kapunda, you purchased a new knife at the Modbury shopping complex. The knife was a Columbia River folding knife with a double locking mechanism. It was supplied with a belt pouch. I accept that the knife had potential for use by you in your occupation in relation to things such as cutting away blown tyres and splicing ropes. Nevertheless, by reason of its size, sharpness and quality it potentially constituted a very serious offensive weapon as must also have been quite obvious to you. I cannot be satisfied beyond reasonable doubt that as the Crown submitted you purchased the knife for the express purpose of killing Koupanis but I am satisfied you were aware it constituted a dangerous weapon.
During the return trip from South Australia you rang Koupanis' phone twice in the early morning. Whether it was to speak to Belinda or Koupanis is unclear, but it is clear you had no doubt they were together.
On return to Melbourne you slept overnight in your truck and spent most of Friday first delivering produce at Dandenong and then returning to pick up a load of cable drums in the western suburbs.
Donna Cann had arranged for Koupanis and Belinda to come to her house on that Friday, both so that Koupanis could repay her the sum of $1,000 which he had borrowed from her and also so that you could sort things out with Belinda.
That night you sent messages to Belinda saying that you had had enough and that she had made her choice. In response she in effect said that she had simply wanted some time apart and complained of the terms in which you had referred to her.
In the event Koupanis and Belinda did not return to Cann's house at any time on the Friday or Saturday, and on the Friday night you accompanied Cann to a party for the first portion of the evening. You then made some further attempts to contact Belinda in the early hours of Saturday.
On the Saturday you received text messages from Belinda which affirmed her relationship with you although she remained with Koupanis. The last of these messages was "Did u really mean what u said yesterday? I fucken love you?" Although as the Crown submits there may be some ambiguity in this message by reason of the final question mark, it was clearly not a message of rejection.
On both Friday and Saturday you were tired, emotionally upset, and angry with Koupanis. In the course of expressing your frustrations to Donna Cann, you expressed an intention to do violence to Koupanis. Although your language was no doubt in part no more than a venting of emotions, I am satisfied that by the Saturday you had formed an intention to confront Koupanis physically and as you said "bash him".
You slept part of Saturday but that evening you travelled with Donna Cann and her nine year old son to Colac in her car. She intended to visit friends in Warrnambool and you intended to catch up with Belinda and Koupanis. In so doing, it is likely that you had a mixture of aims firstly, to get Belinda away from Koupanis if you could, secondly, to exact some revenge from Koupanis and thirdly, to retrieve the money owing to Donna Cann if you could. In addition and perhaps more significantly I am satisfied you were subject to strong emotions including frustration, jealousy, anger at Koupanis and concern for Belinda coupled with confusion as to her true feelings.
Koupanis was living in a house in Wilson Street, Colac principally occupied by one Matthews. It is inherently likely that you spoke with Donna Cann about the house and that not only were you told, as you said in evidence, that it was not a "pretty sight", but also that you were told it was frequented by a number of people.
You had already met Rodriguez and it is also likely that you formed the view that a direct confrontation on your own with Koupanis together with a number of his associates might not be easy.
When you arrived at Wilson Street you left Ms Cann who had parked her car a short distance from the house and walked past the house and then back to it. On entering the front garden of the house you would have been aware that someone had the TV on in the central room of the house (as Matthews described) and that an unknown number of persons might be in that room. You also observed that a light was on in the western front bedroom occupied by Koupanis.
Your evidence, which I accept in this regard, is that on approaching the window to this bedroom you were able to look through a rip in the blind and observe what was going on.
You next say that you saw Koupanis injecting a substance into Belinda's arm and that in effect you then froze at the window looking at them.
I accept that it is highly likely you observed Koupanis and possibly Belinda consuming drugs as both the witnesses Murrell and Jans separately describe smoking "cones" in that room with Koupanis shortly prior to or at about this time.
I further accept that it is possible you saw Koupanis injecting Belinda as you describe, given that a similar incident is described by Matthews as having occurred earlier that day and I accept his evidence in this regard as entirely truthful. Nevertheless I am not positively persuaded that this did occur (noting that I must be satisfied of matters adverse to you beyond reasonable doubt but may accept matters favourable to you if they are established on the balance of probabilities).
Irrespective of what level of drug use you actually observed, however, what then occurred is that you continued to watch until Koupanis received a phone call and then after putting on their shoes and socks and otherwise readying themselves, Koupanis and Belinda left the room and moved to the front door.
It is likely both appeared somewhat affected by the consumption of drugs. You describe Koupanis as steering Belinda as if leading her in a dance. Murrell describes her as being "pretty out of it" shortly beforehand and it is apparent from the whole of the evidence that she had consumed marijuana on a recurrent basis over the previous two days and had been injected with heroin that afternoon. I accept your description as circumstantial and accurate. Koupanis himself also had a blood content demonstrating substantial ingestion of cannabis shortly before this time, sufficient to affect his behaviour at the time he left the room.
When Belinda and Koupanis left the room and moved to the front door, you also moved from the window of the bedroom back across the front of the house and entered into a relatively confined verandah space with lattice siding. At this point in time I am satisfied that you had at the very least a definite intention to inflict violence upon Koupanis.
Koupanis emerged and you say pushed you when you confronted him. Whatever first occurred you then erupted and stabbed him some 19 times with the knife, piercing the chest cavity many times and penetrating the heart, the lungs and the area around the heart. You also cut his left hand and stabbed his left leg as he sought to evade you. Koupanis cried out and fell to the ground. You then cut his throat four times, severing the left carotid artery and jugular vein, and cutting through the throat muscles and the voice box to the neck bones.
You then left the scene but returned briefly to look for a phone you thought you had dropped.
Donna Cann had meanwhile moved her car so you had to ring her before she picked you up and drove you on to Warrnambool.
You told the jury that you do not recollect taking out the knife or the actual stabbing and slashing of the deceased. Whatever may now be the extent of your memory, I am satisfied that you deliberately took the knife out of the pouch on your belt, locked the blade, and savagely assaulted Koupanis with a violence and continued purpose that could only have had one end, namely his death.
The jury were satisfied that you so acted without an excuse by way of provocation which would reduce your crime to manslaughter.
In so finding I am of the view that the conclusions of the jury are to be understood, not on the basis that there was no subjective provocation offered to you when you were confronted with Belinda and Koupanis in a drug affected state, but rather on the basis that the killing was done by you in a state of self-control and not while in a state of loss of self-control. Your own evidence supports this conclusion in that you acknowledge lurking in the garden and observing the progression of a sequence of events in the bedroom. You do not describe an eruption at what you saw through the hole in the blind. Rather you say that after watching and waiting you walked to the front door intending to talk to and "maybe punch" Koupanis. I am satisfied you went to the front door intending to inflict violence upon Koupanis, whether you did so with the knife already in your hand or whether you determined to use the knife only when actually confronted with Koupanis, is ultimately perhaps of little moment.
Put at its simplest, I am satisfied you determined to use the knife against an unarmed man whom you had waited for the opportunity to confront, and I am satisfied you did so as a practical man well knowing the cutting potential of the knife and then using the knife in a brutal, overwhelming and savage frontal assault.
There are a number of aggravating factors in the circumstances of the killing.
·You went to the house armed with a knife and although I am not satisfied you did so with a premeditated intention to kill, I am satisfied you did so knowing that the knife was a potentially dangerous weapon and with a preparedness to use the knife depending on the outcome of events;
·You attacked an unarmed man with the knife, despite the fact that you were physically larger and stronger than he was, and that he cannot have adequately anticipated the ferocity of your attack (which occurred at his home);
·You attacked him with a sustained ferocity that gave your actions a quality of extreme determined brutality.
As against this, there are only limited matters that can be said to explain your conduct and to some extent mitigate your moral culpability.
·I accept that the killing occurred in the context of an intense emotional relationship with Belinda which was under increasing stress in the preceding week and in the process of apparent disintegration;
·You were also in all probability physically and emotionally fatigued as a result of very long working hours as an interstate truck driver;
·Belinda was young you felt protective towards her and Koupanis had effectively lured her away from you while you were absent working arduously as an interstate truck driver;
·Part of the apparent attraction of Koupanis was the supply of drugs by him to Belinda and it was apparent that Belinda had not simply rejected you out of a preference for Koupanis;
·Drug use occurred as you looked through the window; and both Belinda and Koupanis appeared to be affected to some extent by the ingestion of illegal drugs;
There were thus circumstances which to some extent explain but do not excuse your anger and subsequent violence.
Koupanis was born in 1973 and was 31 at the date of his death. He had previously been involved in a de facto relationship and had a seven year old daughter from that relationship and a stepson who regarded him with affection.
Victim impact statements have been tendered to the Court which confirm what might otherwise be inferred, namely that whatever shortcomings he may have had, his violent death has caused significant emotional trauma and distress to others who knew him. Victim impact statements from family members and concerning his stepson, have been presented to the Court and I acknowledge their contents.
I turn then to your personal circumstances. You were born on 5 December 1971. You had a difficult childhood in that your father was a chronic gambler and your mother separated from him when you were about 9. It appears that your relationship with your father was not a happy one and when your mother remarried neither you nor your sister had a good relationship with your new stepfather. You moved out from home at a young age.
In turn you married young and worked to put your wife through University. You have three daughters from your marriage aged respectively 14, 10 and 8. Unfortunately, however, your marriage broke down and you had been a single man for a number of years at the time of your offence. Your conduct has now effectively fractured the potential for any renewed continuing relationship with your daughters.
It has also destroyed the possibility of any meaningful new intimate relationship in the middle years of your life, as you had hoped for with Belinda.
I accept that you are intelligent and you commenced interstate truck driving in order to support your family at an age when you had the potential to obtain a tertiary education.
You have attributes which have enabled you to work hard and be a support to other family members. You have retained the affection and support of your mother, sister and grandmother but will have limited opportunity for contact with them while you are in custody because they live in New South Wales.
You have no prior convictions and have expressed remorse for your conduct. It was never contended at your trial that the killing of Koupanis was other than unlawful[1] and I accept the evidence of Senior Chaplain Hayes called on your behalf that you have expressed genuine grief as to your conduct and its effects.
[1]The sole question put in issue was whether the Crown could negate provocation.
I further accept that your conduct in custody generally supports the view that you will seek to rehabilitate yourself during your sentence.
In sentencing you I must give due weight to the seriousness of your offence. The Court and the community which it represents cannot condone the deliberate taking of another person's life and the Court must by its decisions uphold the sanctity of human life.
The penalty which I impose must also send a clear message that killing in the course of emotions generated by the breakdown of a personal relationship will not be regarded as somehow acceptable.
Further, the use of a knife in the course of a confrontation with an unarmed man at his home was not only cowardly but conduct in itself demanding of a penalty reflecting the need for general deterrence.
Having said this, I accept that given your prior history, the circumstances of your offence and the evidence of your remorse and current conduct, it is appropriate to give less weight than might otherwise be necessary to considerations of specific deterrence and to impose a penalty which maximises the prospects of your rehabilitation by way of a more substantial possible parole period than might otherwise be appropriate. In so doing, however, I must have regard to all the circumstances of the case including its fundamental seriousness.
Bradley James Gee, having regard to the above matters and the considerations specified in the Sentencing Act 1991 I sentence you to 17 years' imprisonment for the murder of Angelo Koupanis and I fix a non-parole period of 12 years.
I declare that pursuant to s.18(4) of the Sentencing Act that you have already served a period of 587 days in custody.
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