R v Kourpanidis
[2021] ACTSC 112
•3 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kourpanidis |
Citation: | [2021] ACTSC 112 |
Hearing Date: | 3 June 2021 |
DecisionDate: | 3 June 2021 |
Before: | Elkaim J |
Decision: | See [51] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter – remorse on behalf of offender – impossibility of identifying blow which caused death |
Legislation Cited: | Crimes Act 1900 (ACT) s 15(2) |
Cases Cited: | Mikic v Local Court of NSW & Anor [2013] NSWSC 334 |
Parties: | The Queen (Crown) Kerry Kourpanidis (Offender) |
Representation: | Counsel A Williamson (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) O’Connor Harris (Offender) | |
File Numbers: | SCC 74 of 2021; SCC 73 of 2021 |
ELKAIM J:
On 22 March 2021 the offender pleaded guilty to the offence of manslaughter (CAN 2961/2021), contrary to s 15(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 20 years’ imprisonment.
There is a detailed Agreed Statement of Facts in the Crown Tender Bundle. There is also a summary which I adopt for present purposes:
The Kingston Hotel is a licenced venue in the Canberra suburb of Griffith. It consists of a bar, restaurant, pool room and beer garden. As at July 5, 2020, in accordance with ACT government Covid 19 directions, the hotel's manner of trading needed to be adjusted. Patron numbers were capped, patrons needed to be seated unless making a purchase and the hotel's pool tables had been covered up and could not be used.
On Sunday July 5, 2020 the victim, Warren Hordpenko was at the Kingston Hotel. He arrived at the hotel at around 5pm. He was alone. Mr Hordpenko had been drinking for most of the afternoon. At around 6pm the offender, Kerry Kourpanidis, arrived at the hotel with his girlfriend and his daughter. They met his brother and went into the hotel to have a counter meal. While they were there Mr Hordpenko approached the offender and his family. He spoke directly to the adults and the offender's daughter. At one stage he told the offender's daughter she was beautiful and touched her on the face. A short time later the offender and his family left the hotel.
The offender, his partner and his daughter arrived home a little after 8pm. When they arrived home the offender's partner criticised him for not standing up to Mr Hordpenko. At that the offender left his home, got in his car, and drove the short distance back to the hotel. He parked his car and entered the hotel. Mr Hordpenko was in the pool room speaking to some other patrons. He was either standing next to, or seated on, a bar stool. The offender ran at Mr Hordpenko and tackled him to the ground. He then struck him in the head several times, then got up and left.
The force of the assault rendered Mr Hordpenko unconscious. Hotel staff commenced CPR and the ACT Ambulance Service ("ACTAS") was called. When ACTAS arrived, they took over performing CPR from the hotel staff. After a short while they moved Mr Hordpenko to the ambulance. Paramedics were unable to revive Mr Hordpenko. Mr Hordpenko was pronounced dead at 9.42pm. The cause of death was traumatic basal subarachnoid haemorrhage.
The offender has pleaded guilty on the basis that he voluntarily assaulted Mr Hordpenko, and that voluntary act caused traumatic basal subarachnoid haemorrhage, which in turn caused his death. The assault was unlawful and in striking Mr Hordpenko to the head several times, the offender realised that he was exposing Mr Hordpenko to an appreciable risk of injury.
I will refer to Mr Kourpanidis as the offender and, without any disrespect, to Mr Hordpenko as the deceased.
There are two matters to add to the summary. First, is that the deceased was very drunk at the time of these events, to the extent that he had come to the attention of the hotel’s staff. At about 8:50pm he was asked to leave the premises. Unfortunately, he did not do so.
Second, is the interchange that had occurred between the deceased and the offenders’ daughter. This is described in the detailed Statement of Agreed Facts at [9] as follows:
After the offender and his family had finished their dinner Mr Hordpenko came back to their table and attempted to engage them in conversation again. He addressed the offender and Ms McGarrity as the offender's daughter's mother and father. Ms McGarrity told him that she was not her mother. At one stage he turned to Paul Kourpanidis and squeezed him on the arm. Mr Hordpenko then began to speak directly with the offender's daughter. Ms McGarrity heard Mr Hordpenko say "You're a good girl. Look at your eyes. Perfect eyes. And oh, those lips. Perfect lips. Your perfect lips. That nose. Beautiful nose". He then touched the offender's daughter on the face, moved closer to her and said, "But I can tell the one thing I hate about you, I hate your nostrils". Ms McGarrity told Mr Hordpenko that was a "weird" thing to say, and immediately asked the [deceased] to leave. At that the offender, Ms McGarrity, the offender's daughter, and Paul Kourpanidis left the hotel. As they were walking out the offender's daughter said to Ms McGarrity "why did that man touch me? Why did that happen?".
(Emphasis in original).
The cause of death was found to be a vertebral artery dissection. The pathologist who carried out the autopsy, Professor Duflou stated in his report:
In general terms, vertebral artery dissection with or without basal subarachnoid haemorrhage can be caused by many mechanisms, including but not limited to chiropractic manipulation of the neck, childbirth, turning the head suddenly, being struck by a cricket ball, mundane acts such as painting a ceiling, and a large number of other seemingly innocuous activities. In a percentage of cases, no definite predisposing factor has ever been determined and it appears that this damage to the blood vessel wall can occur spontaneously. It therefore also follows that the amount of force applied to the head need not be at all great, and in most cases of traumatic subarachnoid haemorrhage due to vertebral artery injury the amount of force is likely not of great magnitude. There are reports of "king hits" being inflicted and causing such injury, but the majority of fatal cases do not show evidence of significant external trauma as one would expect following the application of severe force to the head or neck. Similarly, bony injury to the neck, jaw and skull is relatively uncommon in these cases, suggesting relatively minor application of violence.
A dissection of the type described by the pathologist was said to be very rare.
The deceased was obviously a very decent man. He was 44 years of age when he died. I heard a number of Victim Impact Statements. Their contents describe the deceased as a loving and affectionate man. Here are some excerpts from some of the statements:
Mrs Christine Henderson-Hordpenko described her husband as a great soulmate. They had “many plans and dreams”. She said he was:
[T]he warmest, most gentle, loving and caring man.
…
When he met people he always acknowledged the children with the adults, treated them just as important as the adults.
…
Waza was such a hard worker, usually seven days a week, 10 – 12 hours a day, he wore his body out to provide a good life for us.
The deceased’s mother said:
My son was a person that wouldn’t have harmed anyone he was loved by everyone including children who miss him desperately.
…
He brought so much joy to me when he was around, the big and long hugs he gave and the long talks on the phone we had, all have been taken away from me, I can never get that back…
The deceased’s father said:
He was only 19 when he fell in love and married Christine, a woman with three very young daughters he raised those girls as his own. Warren worked as hard as any person I’ve seen often long hours and weekends to provide a loving home environment for them and provide for all their needs.
He grew up an honest hard-working young man, dearly loved by all his family including his step Daughters and his son, and became a loyal friend to all that became his friends.
Fleur Henderson was one of the deceased’s step-daughters. She wrote:
This has shattered our family, let alone my 20 year old brother without a dad now and my mum without the love of her life.
Paige Galway, also a step-daughter of the deceased said:
My dad was a kind, soft hearted and gentle person. He has been in my life since I was 6 years old and he has always treated my two sisters and I as if we were his own blood. He’s always been a man with a huge heart who would give the shirt off his back. He’s worked extremely hard all his life and wanted the best for everyone, especially his family.
The third step-daughter, Sian Henderson, said:
Waza, my beautiful step dad had been in my life since I was a two year old girl. He always brought so much joy and happiness to our family and provided us with a beautiful little brother, Saxon who we never would have had if it weren’t for him.
…
My dad was such a hard working man always working and doing everything he possibly could to provide for us as a family, even when he had injuries from constantly being on his knees all day at work. He would then come home and cook us amazing food for dinner and wouldn’t sit down until everyone had eaten, he always put everyone before himself.
Saxon, the deceased’s son, wrote:
I looked up to how amazing he was with me and other children and I aspired to be like him!
It is now necessary to examine the subjective features relevant to the offender. He pleaded guilty early in the proceedings and is entitled to a discount. The Crown suggested 20% to 25%, Mr Archer said 30% was appropriate, considering the early indication by the offender of his preparedness to plead guilty to manslaughter. I think the correct figure is 25%.
I think, as expressed through his plea of guilty, the offender has shown remorse. This is also evident from the Pre-Sentence Report which states:
Mr Kourpanidis expressed a significant victim empathy. He described the victim in a positive light and referred to him as a hardworking man. He acknowledged that he had multiple family members who would be affected [by] his death. Mr Kourpanidis told the author of this report that, “I accept full responsibility” and that there are “no excuses” for what he did.
Other than some driving offences a number of years ago, the offender does not have a criminal record. There is no suggestion that he is likely to re-offend.
The offender was born in 1984. He is one of three children. He had a positive upbringing within a supportive family. He has had two long-term relationships. The first was with the mother of his daughter. The offender’s current relationship has existed for about two years. His partner remains supportive of him.
The offender completed Year 12 and then an apprenticeship in carpentry. He has been in constant employment. He does not have any addictions to drugs or alcohol. There is no suggestion of any mental illness.
I was provided with a number of references on behalf of the offender. Some of the referees gave oral evidence. They all speak of his devotion to his family and his contribution to society. He was described as “an honest, reliable and hard-working builder”. He was said to be “a person of strong morals, steadfast ethics and an enduring asset to society, as well as a great father, friend and adopted uncle to our children”.
A colleague from the offender’s days in the Army says that the offender “exhibited an uncharacteristic lapse in judgement by returning to the Kingston hotel to confront Mr Hordpenko”. Other statements emphasise that the actions were out of character and the effect his incarceration will have on the relationship with his daughter.
The letter from Mr Bell indicates that the offender has continued his pro-social conduct in prison.
One person stated, concisely:
Kerry is a good man who made a mistake.
This observation is obviously correct but does not deal with the extent of the mistake and its overwhelming consequences.
Mr Archer, on behalf of the offender, suggested the finding of objective seriousness should be low. He first of all said it should be based upon the initial pushing of the deceased off the stool. This was because the pathology report could not identify a specific act causing death and it could well have occurred sometime before the attacks on the deceased’s head. Mr Archer said I should attribute the death to the initial pushing off the stool because this would give, in circumstances such as these, the benefit to the offender.
I disagree with that approach. I cannot reach a conclusion of which blow or action specifically caused the death. It is to be recalled this was a short, lasting seconds, vicious attack which resulted in a death. Absent the identification of a cause attributable to a specific action, the only logical approach is to regard the attack as having caused the death. Although relating to different circumstances I think this approach is consistent with that taken by Beech-Jones J in Mikic v Local Court of NSW & Anor [2013] NSWSC 334 at [16].
Mr Archer then pointed out that the acts of violence were not “of high objective gravity”. This was because no weapons were involved, no drugs or alcohol were involved (on the part of the offender) and the cause of death was unusual.
The difficulty with this submission is that it is not uncommon for a person to be seriously injured, sometimes killed, as a result of a single punch. Of course had the offender arrived with a gun or a knife, the seriousness would have been increased. The absence of weapons is not a mitigatory factor. It is but one of the circumstances to be taken into account in assessing objective seriousness.
Mr Archer suggested that provocation was “an extenuating circumstance that significantly reduces the moral culpability of the accused”. I agree that it has an effect in this case but not to the degree suggested. The position may have been different if the attack had occurred immediately after the touching of the offender’s daughter and the accompanying comments. In that event the provocation would have been proximate and more able to be seen as an immediate reaction to improper conduct on the part of the deceased.
The provocation loses its force with the passage of time, so that when the offender arrived back at the hotel the asserted acts of provocation had become more the reason for his return than an explanation for the violent attack.
Mr Archer submitted that the offender had “little if any time for calm reflection, given the distress of his child and the words and stated intentions of Ms McGarrity”. But the offender took his daughter home and put her to bed. He then drove back to the hotel. In my view he had ample time for reflection.
Consequently, the submission of an assessment of “low” objective seriousness is rejected.
The Crown submitted that the offending was at, or just above, “the mid-level of the spectrum of objective seriousness for manslaughter”. I generally agree with that assessment, although restrict the finding to mid-level. I also, although not completely, agree with the reasons the Crown has submitted lead to the conclusion.
While I would not necessarily use the word “cowardly”, the assault was upon a person taken by surprise and involved not only the initial tackle but also the continued striking of the deceased to his head and body.
Although the attack was short, it was brutal and included the targeting of the deceased’s head.
The Crown submitted that the offending was pre-meditated. I am not sure this is a correct description. I agree that the offender deliberately returned to the hotel with the intent of confronting the deceased. It is not clear however whether he arrived at the hotel intending the attack or intending a confrontation which developed into an intent to carry out a physical attack.
It must be observed however that there was no preliminary discourse before the attack commenced. The offender entered the room and immediately launched the assault.
The Crown submitted that the offender was “intent on exacting revenge”. Such a motive is clearly an aggravating feature. I would not classify the offender’s actions as revenge. Perhaps the distinction is subtle but in my view his actions are more consistent with reprisal for the perceived harm caused to his daughter.
I agree with the Crown’s condemnation of vigilante conduct. Earlier this week, in R v Crick [2021] ACTSC 106 I said that vigilantism “can be as criminal as the conduct it seeks to address”. In this case it immeasurably exceeded the conduct.
Besides objective seriousness it is also necessary for me to take into account the provisions of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT).
Ultimately I am dealing with the tragic tale of two decent men, but one of whom killed the other and must be appropriately punished. This is not a case in which specific deterrence plays any part. Rather it is a case in which the actions of the offender must be brought to appropriate account.
I agree with the Crown that there must be an element of general deterrence. The public must know that unjustified attacks can have severe consequences for which punishment will follow.
There are reasons for leniency, mostly derived from the offender’s background, the absence of a relevant criminal record and the remorse he has expressed. As stated in a number of the references, the offender can return to a life in which he can contribute to society and re-join his family. I think this aspect is best addressed through a nonparole period.
In relation to other sentences for similar conduct, both parties have pointed to various cases. They have also both reminded me that comparable cases are not necessarily a primary consideration. The range of penalties handed down in the list of other cases is broad.
Mr Archer particularly drew my attention to the case of R v England [2001] (Unreported, ACT Supreme Court, Miles CJ, 26 April 2001), suggesting that the offending there was more serious. I do not agree. In England there was an exchange between drunken louts. In this case a sober man deliberately returned to the hotel in order to confront the deceased. More generally, I have not gained much assistance from the authorities provided to me.
As to the issue of whether authorities from outside the ACT may be considered, I can see no reason why that should not be the case, provided of course that primary consideration is given to the facts of the case, the specifics of the ACT law (including maximum penalties) and any relevant authorities in this court.
It is also necessary for me to take into account that the maximum penalty for the offence is 20 years imprisonment.
Ultimately I’ve come to the view that the appropriate sentence should be one of imprisonment for 10 years. I stress this is an evaluative conclusion not based on any mathematical relationship between a finding of mid-level objective seriousness and the maximum penalty. I have attempted to follow the course suggested by Refshauge J in R v Mathews [2020] ACTSC 364 from [44].
Reducing the 10 years by 25% brings the term to 7 years and 6 months. I will set a nonparole period of 3 years and 9 months. The offender has been in custody for 329 days so that the starting date for the imprisonment and nonparole period will be 9 July 2020.
I make the following orders:
(a) For the offence of manslaughter the offender is sentenced to imprisonment for a period of 7 years and 6 months to commence on 9 July 2020 and end on 8 January 2028.
(b) A nonparole period of 3 years and 9 months is set to commence on 9 July 2020 and end on 8 April 2024.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim. Associate: Date: 3 June 2021 |
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