R v Maaka

[2015] NSWSC 358

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Maaka [2015] NSWSC 358
Hearing dates:	10 December 2014; 2 April 2015
Decision date:	07 April 2015
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Imprisonment for 20 years with a non-parole period of 15 years
Catchwords:	CRIMINAL LAW – sentence – murder – guilty plea – intention to inflict grievous bodily harm – severe and violent attack upon homeowner when disturbed during break and enter– offender affected by drugs – criminal record - disrupted upbringing – no finding of special circumstances – Form 1 offences taken into account - partial accumulation upon existing sentences CRIMINAL LAW – sentence – murder – where offender disputes matters in agreed facts – offender unimpressive witness - evidence given by offender at sentence hearing rejected
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Sentence
Parties:	Regina Euriah Victor Maaka
Representation:	Counsel: Ms M Cinque (Crown) Mr J Stratton SC (Offender) Solicitors: Solicitor for Public Prosecutions Hardinlaw
File Number(s):	2012/335428; 2012/371733

Judgment

1. HIS HONOUR: On 10 December 2014 the offender, Euriah Victor Maaka, appeared before me and adhered to a plea of guilty he had entered in the Wyong Local Court to a charge that on 27 October 2012 at Hamlyn Terrace he murdered Mr Bill Gogos. I heard evidence and received submissions on sentence last Thursday.

2. The maximum penalty for murder is imprisonment for life and there is also a standard non-parole period of 20 years. These are legislative guideposts that I must bear in mind in the assessment of sentence. (The Crown does not contend that this is a case in which the maximum penalty might be imposed.)

3. The offender also asked that when I sentence him for the murder I take into account his guilt in respect of 16 other offences listed on a Form 1 document.

Facts

4. The facts relating to the offence were set out in a statement of “agreed facts”. The offender gave evidence last Thursday in which he said that while he had accepted that it set out what happened, there were some aspects which were incorrect. I do not believe him for reasons which I will explain later. The following is drawn from the agreed facts.

5. Mr Gogos, lived in a two storey brick home in a residential street in Hamlyn Terrace, a place on the western side of Tuggerah Lake and north-east of Wyong. He worked as an IT specialist with a large insurance company at the inner Sydney suburb of Crows Nest. He usually drove to work with a fellow employee, Ms Deborah Patterson. He was last seen by Ms Patterson when he dropped her home at 7.15pm on Thursday 25 October 2012.

6. Sometime later that evening the offender and two friends, Jamie Monahan and Malcolm Pendegast, went to Mr Gogos’ address. They were in a Mercedes coupe that had been stolen together with other property from a home the offender had broken into sometime in the previous fortnight. The offender had been driving around in the Mercedes since.

7. Once they arrived at Mr Gogos’ home, Monahan remained in the car while the offender and Pendegast entered the fenced backyard. A block had been taken from a garden retaining wall in the front yard and it was used to smash a glass sliding door panel at the rear of the house to gain entry.

8. Once inside the deceased’s home the offender ransacked a study/office on the upper storey. Mr Gogos walked in and disturbed them. The offender punched him to the head, causing him to fall to the ground in a semi-conscious or unconscious state. The offender then pulled a drawer from a desk and struck Mr Gogos with it an unknown number of times to the head. An amount of cash, up to $2000, fell from the drawer and was taken by the offender. He and Pendegast then returned to the stolen car and were driven from the scene by Monahan.

9. Ms Patterson raised the alarm the next morning when Mr Gogos had not arrived to pick her up for work. Ultimately the police were called and attended the home in Hamlyn Terrace. They gained entry and found Mr Gogos in an ensuite bathroom, bloodied and obviously badly injured. Ambulance officers were called and he was taken to Wyong Hospital where he was found to have suffered a catastrophic brain injury. He was transferred to the intensive care unit at Gosford Hospital but was declared brain dead in the early afternoon of 27 October 2012. He was maintained on a ventilator until his sister arrived from Greece. Organ donation surgery was carried out with the family’s consent.

10. An autopsy examination was carried out. It was determined that Mr Gogos had died as a result of blunt force head injury. Specific injuries noted included severe craniofacial trauma, particularly to one side of the head; substantial injuries within the brain; and a laceration below the nose consistent with having been struck in the mid-face with an object with a sharp edge. The forensic pathologist’s opinion was that the injuries were consistent with a severe and possibly prolonged assault to the head. The number of blows and the force used could not be determined but fractures to the cheek bones indicated that a large force was used.

11. The police investigation revealed that Mr Gogos had been assaulted in the office and had laid there for some time. There were signs that he had then staggered about the house and possibly may have gone to bed at some stage. There were also signs of him having had a shower before collapsing on the ensuite floor. I am satisfied that Mr Gogos was so injured and incapacitated that he was incapable of appreciating the gravity of the situation and calling for help.

12. The offender was arrested in the stolen Mercedes after a police pursuit on 28 October 2012. There was evidence of the car having been involved in a number of offences of failing to pay for petrol and being involved in some collisions. He resisted police and force was required to remove him from the car and place him under arrest. He falsely claimed that the Mercedes belonged to his “Pop”. Whilst at the police station he made an unguarded disclosure of information that would only have been known to someone involved in the break-in at the deceased’s home.

13. The offender was interviewed by detectives involved in the investigation of Mr Gogos’ death. He gave an account of his movements and denied any involvement. He was remanded in custody in relation to offences arising from the police pursuit. Police investigated the account he had given of his movements and it did not check out. They ascertained that he had arrived at a birthday drinks gathering at a home at Gorokan in the early hours of 26 October where he bragged about a break-in he had just committed.

14. One witness recalled that he said:

“I broke into this old guy’s house and hit him and knocked him out … The old guy woke up and found me in the house so I hit him. I killed him bro, I think I killed him. He didn’t move. Look at my hand. [I note that police observed injuries to his hand on 28 October which were still evident when they again spoke to him on 29 November 2012.] I picked up the cabinet and dropped it on his head.”

15. Another witness reported that he said:

“I pulled out a drawer and I hit him with it. He dropped to the ground … I realised the guy was still moving so I hit him again”.

16. Yet another witness said that he said:

“The guy woke up. I just pumped him. I fucken pumped him. I knocked him out on the ground. I pulled out a drawer and smashed it over his head to make sure. The money fell on the floor. I was cheering cause if I didn’t do that I wouldn’t have found the money. When I was walking out downstairs I heard the guy snoring.”

17. The offender made more admissions to other people the following day.

18. DNA testing confirmed that he had been at the home of the deceased. He was further interviewed about the murder on 29 November 2012 but denied any knowledge of it. He said he barely remembered his movements at the relevant time because “he was stoned half the time”. He could not explain why his DNA would have been found at the deceased’s home. After the interview had concluded and he was told that he would be charged with the murder he responded, “Whatever”.

Form 1 offences

19. The offender asks that the following offences be taken into account:

Break, enter and steal and stealing a car (the Mercedes) at North Gosford 12-28 October 2012.

Dishonestly obtaining fuel at service stations (x 3): $90 worth at Gorokan on 24 October 2012; $73 worth at Tuggerawong on 25 October 2012; and $60 worth at The Entrance on 26 October 2012.

At Norah Head on 28 October 2012: failing to stop and assist the driver of a motor vehicle involved in a collision; driving in a manner dangerous to the public; using a car as an offensive weapon with intent to prevent arrest; resisting a police officer in the execution of his duty; having custody of a knife in a public place; possessing housebreaking implements; possessing a prohibited drug (cannabis); having a registration plate reasonably suspected of having been stolen; intimidating a police officer in the execution of his duty; driving without a licence; and driving while under the influence of a drug (cannabis).

20. In accordance with the relevant guideline judgment, in taking these offences into account it is appropriate to give greater weight to personal deterrence and retribution when sentencing the offender for the murder.

The offender’s age and criminal record

21. The offender was born in October 1994 and so he had only just turned 18 at the time of the offences.

22. He has a criminal record. He was charged by way of a future court attendance notice for an offence of assault occasioning actual bodily harm he committed on 19 July 2012. He went into custody the day after Mr Gogos died when he was arrested for the offences at Norah Head on 28 October 2012. He was subsequently charged with a number of other offences that had been committed on various dates prior to going into custody.

23. He received custodial sentences of various lengths for those offences but for an overall period of about 13½ months dating from 28 October 2012 until 10 December 2013. The individual offences were:

Assault occasioning actual bodily harm on 19 July 2012

Break, enter and steal and Wield knife in a public place on 5 September 2012

Goods in custody suspected of being stolen on 23 September 2012

Larceny on 29 September 2012

Larceny and Dishonestly obtain property by deception (x 7) on 3 October 2012

Break, enter and steal (x 2) on 18 October 2012

24. The Crown contended that the sentence I impose should be completely accumulated upon those sentences so that it is backdated to 11 December 2013. Mr Stratton SC submitted that the sentence should be backdated to 28 October 2012 which would have the effect of completely subsuming all of the other sentences.

25. This issue is to be determined by having regard to the totality of criminality involved in all of the offences. In my view, except for one aspect, there should be full accumulation given the number and nature of the other offences. The aspect I am concerned about is that no non-parole period was set for any of the sentences; the longest of which was 12 months from 11 December 2012 to 10 December 2013. That sentence was imposed on 1 October 2014 and there would have been no utility in setting a non-parole period given the total term had already expired. I propose to assume a non-parole period similar to the usual statutory proportions would otherwise have been fixed and so the sentence I impose will be notionally accumulated upon that so that it will date from 1 September 2013.

26. The custodial history printout indicates that the offender has not been a model prisoner. He has been dealt with for disciplinary offences on five occasions, four of which involved fighting, intimidation or assault. (The other matter involved drug possession and I was told it was some type of antidepressant.)

The personal circumstances of the offender

27. Dr Olav Nielssen, forensic psychiatrist, interviewed the offender on 30 January and 27 February 2015.

28. The offender gave an account of the murder of Mr Gogos which is at odds with the statement of agreed facts which he told Dr Nielssen “was not entirely correct”.

29. He told Dr Nielssen that his life at the time of the offences was one of committing illegal acts in order to get money for drugs. He was using cannabis, ecstasy and methamphetamine (“ice”). He described himself as “being a bit scattered on the drugs … it sort of impaired my judgment … when I was taking the drugs I was a bit more energetic and fearless … when I was sober I was a bit timid”. His use of drugs started with cannabis at the age of 14. He had never participated in any drug rehabilitation.

30. In an account of his life history he said that he was of Maori heritage from the North Island of New Zealand. His mother had attempted to commit suicide when she was pregnant with him and in fact did so when he was an infant. He had hardly seen his biological father. He lived with his grandparents but when they separated and his grandfather moved to Australia he followed. Thereafter he variously lived with his grandfather, an aunt and an uncle. He returned to New Zealand to live with his grandmother but got into trouble over a fairly minor criminal matter and returned to Australia after receiving a caution.

31. He left school at around age 16. He had some unskilled employment but this was hampered by drug use.

32. He told Dr Nielssen of experiencing periods of depression at various points in his life, particularly after the breakdown of his only significant relationship when he contemplated suicide.

33. Unsurprisingly, Dr Nielssen made a diagnosis of “substance use disorder”. He considered that the lack of a stable living arrangement and guidance “appears to have contributed to the circumstances that led to this offence”. However, “the main factor contributing to the offences was his reckless use of stimulant drugs”. The homicide was committed “at a time he was in an irritable frame of mind as a result of coming down from a combination of cannabis and stimulant drugs”.

34. The doctor thought that the offender seemed to recognise the role of drug use in his poor social performance and his offending behaviour. He said the offender had indicated a willingness to participate in counselling for substance abuse and to assist with personal development.

35. Dr Nielssen concluded his report with a guarded assessment of the offender’s rehabilitation prospects. He added:

“He presented as a pleasant and polite young man who expressed remorse regarding the effect of his actions, is of at least average intelligence and was assessed to be capable of participating in any rehabilitation programs that might become available, including vocational training and personal development programs.”

36. I suspect Dr Nielssen would have been even more guarded in his assessment if he had been aware of all of the other offences listed on the Form 1 that the offender asks to be taken into account and of his poor prison disciplinary performance.

37. I mentioned earlier that the offender gave evidence at the hearing last week. He gave an account of his life history which is broadly consistent with what he had told Dr Nielssen. I accept that part of his evidence. It was supported by the impressive evidence given by his grandfather, Mr Victor Maaka. He described the offender as a child at school as being “pretty bright; “pretty smart”; and “a good kid”. But it seems that his life unravelled during his mid-teenage years with the onset of drug use. When he returned from New Zealand he kept running away and would lie to his grandfather; something he never did before.

38. Mr Stratton submitted that the whilst the offender was brought up in a loving family household by his grandparents, it was still the case that he had suffered the trauma of not knowing his own parents and that must have had some negative influence upon his psychological make-up. I accept that. It is fortunate that he continues to have the support of his grandparents; I was told his grandmother was in court and was prepared to give evidence as well.

The offender’s evidence concerning the offence

39. Whilst I accept the evidence of the offender about his personal circumstances, his account of the circumstances of the offence is another matter. He said that he had been using drugs, ice, ecstasy and marijuana and had not slept for about three days. He selected Mr Gogos’ home to break in because it was “a pretty big house” and it had the appearance of being unoccupied. He and Pendegast each banged on the front door a number of times and it was unanswered.

40. He said that when he was disturbed by Mr Gogos in the upstairs study he panicked. He hit Mr Gogos with his hands three times, the third blow struck the shoulder/arm region. He then “threw” a drawer at him which might have hit his head, or his hand. Mr Gogos hit the ground and the offender thought he was unconscious because he was making a very loud breathing noise; a snoring noise. At that stage he did not think he would die.

41. The offender said a number of times in his evidence that he threw the drawer at Mr Gogos. But at one point in cross-examination he agreed that he “smashed Mr Gogos over the head with it”. When asked about the contradiction he protested that he was nervous and confused. When pressed further he said he was not claiming it was “almost accidental”; he had thrown the drawer intending to hit him.

42. The offender gave this answer to a question about how Mr Gogos appeared after he had hit him:

“After I hit him, his face was not that bad, straight away. He was normal when I left. He wasn't bleeding. He didn't have any cuts. And when I left, he was still alive, and he was still in the office. He was in the same room. He wasn't bleeding when I looked at him. He looked fine. Yeah, I would say it takes time to get bruising. At the time, he was just unconscious. I didn't know how serious.”

43. In re-examination, on the subject of why he was not sure where he had hit Mr Gogos with the drawer, he said the light was not on in the study. If that was the case, it is difficult to understand his unequivocal assertion that Mr Gogos had no cuts, he was not bleeding and he looked fine.

44. The offender said that after Mr Gogos went to the floor he immediately fled to the car. He told his friends that he had a fight with someone and he thought he was “knocked out”. He asked, “What should I do?” One of them replied, “Oh, he’ll be all right. Let’s go. We got to go. Don’t worry.” He asked whether they should stop and call somebody from a payphone but one of the others replied, “No, it’ll be all right. We got to get out of here.”

45. He denied saying some of the things that are quoted in the statement of agreed facts. When pressed as to one statement a witness claimed he had made that he accepted he “might have” said, he explained, “it is hard to remember hardly anything”. He said that he agreed to those facts because he did not want to make things worse for himself. He agreed that when he was alleged to have made those statements at the gathering he attended later on the night he was “pretty happy” or “on a high”. He denied that after agreeing to the facts he had reflected upon them and decided that they did not present him in a very good light. He claimed that he had been advised by his solicitor that it was not a good idea to dispute the facts because it might not work in his favour. (Mr Stratton later said that there had been “many discussions about the difficulties of contesting facts in sentencing matters and the potential advantages and disadvantages of that” but I cannot accept that this explains damaging admissions being “agreed”.)

46. When pressed about why he suggested stopping at a payphone and calling an ambulance he at first said “I don’t know”; then that he was not thinking properly at the time; and then he said that he was worried about Mr Gogos being dead or dying and he thought it was a good idea to stop and make a call that could not be traced back to him from a payphone. His evidence was to the effect that when he left Mr Gogos he thought he was alright but when he got to the car he thought more about it; he thought “what if he doesn’t wake up from being unconscious”. He then claimed he said to the others, “I think he’s dead. I think I might have killed him. I think we should try and help him” but he was told not to worry.

43. The offender was an unimpressive witness. He was at times argumentative with the Crown Prosecutor. His demeanour at times gave the impression of petulance. His responses often changed from claims of memory to claims of having a difficulty in recalling. His version of the assault upon Mr Gogos minimised the ferocity that it must have entailed given the findings post-mortem. His claim that Mr Gogos had no cuts, was not bleeding, and was fine when he left is inconsistent with the objective evidence. I was not persuaded that he had any concern about Mr Gogos’ fate after he decamped from the scene. And his concession that after the event he was “pretty happy” or “on a high” is consistent with the statements he now denies but at one time agreed were accurately recorded in the statement of facts.

Seriousness of the offence

48. Although I am not satisfied beyond reasonable doubt that the offender intended to kill Mr Gogos, it is clear that he had an intention to inflict really serious harm. On his own admission he had struck Mr Gogos and knocked him out. I am satisfied that he then smashed a drawer into his head “to make sure”. The injuries found by the forensic pathologist were extremely severe and resulted from multiple blows and “a large force”. None of what followed the first punch was necessary in order for the offender to flee the scene; I am satisfied that it was simply unbridled, gratuitous and extreme violence for the sake of it. Having regard to his later gloating about what he had done, which I also accept, I am satisfied that the offender carried on with the violence simply for the sake of it.

49. I accept Mr Stratton’s submission that the offence was not planned or premeditated; it is something that occurred spontaneously as the offender was disturbed. However, the fact that Mr Gogos was so violently assaulted in his own home by an intruder attempting with his co-offender to steal any valuable property they might come across and that Mr Gogos was then left for dead marks this as a serious, callous, brutal and utterly pointless murder.

Other matters relevant to sentence

50. Dr Nielssen’s report appears to suggest there is a link between the offender’s substance use disorder and the murderous attack upon Mr Gogos. I do not accept that there is such a link; but even if there was I do not believe that it has any material bearing on the offender’s moral culpability. He claimed that he was not thinking clearly but that everything he did was driven by a desire to obtain money for drugs. At the most, this might be an explanation for breaking into Mr Gogos’ house; it says nothing to explain the violence.

51. I acknowledge the need not to allow subjective matters to prevail over the objective seriousness of the offence. There is also the need to have regard to the various purposes of sentencing including the need to recognise the harm done; ensure adequate punishment; denounce the offender’s conduct; make the offender accountable for his actions; and deter him and others from committing similar offences. However it is necessary to also bear in mind that the offender was barely 18 years of age at the time of the offence and that he was the product of a somewhat disrupted upbringing amongst various extended family members. These are significant matters and it is necessary to make some allowance for them.

52. I have borne in mind the need to take into account the 16 offences listed on the Form 1 document.

53. In the concluding paragraph of his report Dr Nielssen stated that the offender had “expressed remorse regarding the effect of his actions”. I am unable to see any remorse in the history recounted earlier in the report. The offender professed to be remorseful in his evidence and his grandfather gave evidence of him having expressed it as well. I think he probably is; but his self-serving attempt to minimise the seriousness of his actions makes it difficult to be certain about.

54. It is necessary to be cautious about the offender’s rehabilitation prospects. The nature of the murder and the sheer number of other offences the offender committed in the latter half of 2012 whilst he was in the throes of an out-of-control drug addiction calls for circumspection. The gaol disciplinary record does as well. Dr Nielssen was not able to make any meaningful prediction about rehabilitation; nor am I. As he grows older and hopefully gains some maturity it might be that he will resolve to do things to ensure he does not come into conflict with the criminal justice system again. Time will tell.

55. The offender must get credit for his plea of guilty which was entered in the Local Court. However, this was some 18 months after he was charged and I am told it followed lengthy negotiations over the facts. Mr Stratton submitted that the offender should receive the “full benefit”; in other words, a 25 per cent reduction of sentence on account of the utilitarian benefit to the criminal justice system. Commonly a plea entered prior to committal would attract such a discount but in this case it was delayed for the reason stated. On top of that, the offender was not prepared for a significant time to confirm in this Court that he would adhere to his plea until further negotiations about the facts took place. I will make an allowance of 20 per cent.

56. I am not prepared to find that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. Mr Stratton allowed that such an approach was open but submitted nonetheless that there was scope to make some adjustment on the basis of the offender’s youth; this being his first sentence; and his “troubled history”. I have considered that submission but propose not to make any adjustment.

57. A number of cases were referred to in which the offending bore some similarity to that in the present case. I will not spell out the detail of them but simply confirm that I have assessed them as a guidepost after having first provisionally determined the sentence I intend to impose. They have been of some assistance but it has to be acknowledged as well that each case contains its own unique set of facts and circumstances.

Impact of the offence upon others

58. Bill Gogos was 53 years old when his life was taken by the offender. He was much loved by his parents, siblings, nephews and nieces. He was admired and respected by a wide circle of friends and work colleagues. Statements by his sister Areth and his brother Nick attest to the profound pain and grief that the loss of their beloved sibling has caused. It is something they experience on a daily basis and it will endure long into the future.

59. The taking of a human life is recognised as the most serious of criminal offences. There are many reasons for this and they include recognition of the harm that extends beyond the victim him or herself. In this case the community has been harmed by the taking of the life of a good man. Family, friends and colleagues have been immeasurably harmed as they are left to suffer the nightmares of grief for the rest of their days. I respectfully reiterate that they have my most sincere sympathy.

Sentence

60. Convicted.

Sentenced to imprisonment comprising a non-parole period of 15 years and a balance of the term of the sentence of 5 years.

The sentence is to date from 1 September 2013. Eligibility for release on parole will arise upon the expiration of the non-parole period.

I confirm that I have taken into account the offences on the Form 1. That is a total sentence 20 years. Without the plea of guilty, it would have been one of 25 years.

61. The offender’s solicitor will explain to him the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW).

**********

Decision last updated: 07 April 2015