R v Misalis
[2014] VSC 617
•18 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 00220 2013
| THE QUEEN |
| v |
| GEORGE MISALIS |
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JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2014 |
DATE OF SENTENCE: | 18 December 2014 |
CASE MAY BE CITED AS: | R v Misalis |
MEDIUM NEUTRAL CITATION: | [2014] VSC 617 |
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Murder – Wife – ‘irrationally strangled wife’ - no coherent motive.
Sentence: 18 years – minimum 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose | Office of Public Prosecution |
| For the Accused | Mr P Morrissey SC | Tony Hargreaves & Partners |
HER HONOUR:
George Misalis, you have pleaded guilty to the murder of your wife Zaharia Misalis on 26 March 2013 and your plea was heard on 8 October 2014.
You are 61 years of age, having been born on 9 March 1953 and have no prior convictions.
The maximum penalty for murder is life imprisonment.
You were charged on 28 March 2013 with one count of murder and conducted, on 11 December 2013, a contested committal at the conclusion of which you were committed for trial, with a recorded plea of not guilty. However, when you were arraigned before Lasry J on 24 April 2014 you pleaded guilty to one count of murder.
In the amended Crown opening the learned Crown Prosecutor Mr P Rose QC stated, in paragraph 2 of that document, that the plea of guilty to the murder charge was on the basis that you ‘irrationally strangled your wife’ with the Crown adding in parentheses that they did not allege a coherent motive but it should be inferred, and was agreed between the parties, that at the time of strangling your wife you intended to inflict a really serious injury.
As indicated during the plea hearing, I am unable to understand the basis of what has been put forward. I have rarely seen a rational motive or basis for someone killing their wife, partner or husband. On most occasions it is anger, fear, loss of control or things that I would consider irrational that has caused the murder of a loved one. The Crown ultimately withdrew the comment that this was an irrational murder.
The background to this offending as contained in the Crown summary was that on 10 December 2012, police officers had attended at your family home with the intention of interviewing you in relation to historical allegations of rape. You were arrested and conveyed to the Mill Park Police Station where you were interviewed and released from custody. The following day you arranged for your solicitor to contact the informant for you to make a statement. Due to Christmas, officers being on leave and other matters intervening, that statement was organised to occur on 13 February 2013.
What is not contained in the Crown summary, but which is contained in the statement of material facts, at page 2 is that:
On Tuesday 11 December 2012, Arthur Dines, a solicitor acting for the accused, contacted the informant in that matter, Detective Leading Constable Rosemary Eden. Dines stated that the accused had told him he had engaged in an affair with the alleged victim after she was married and wanted to make a statement and give an account of the circumstances. Dines further stated the victim of the alleged sexual assaults had tried to contact the accused some 12 to 18 months earlier and the accused was concerned his family would find out about the affair.
On 16 January 2013, you consulted your general practitioner, Dr Giaprakis, who has been your general practitioner since 1980. Over the 30-odd years that you had been treated by Dr Giaprakis he said he had noted emotional symptoms from time-to-time, all of those being at relevant and, what would seem to be, appropriate times for emotional upset, such as when your father died, when you and your wife were involved in a financial dispute, or when you were fearful in respect of tests being conducted for the possibility of prostate cancer. On this occasion, you told the doctor that you were upset because you had received several prank telephone calls to both your mobile and your home telephone from an unknown male person. You told the doctor that you had no personal, business or financial concerns that were troubling you, just these telephone calls. On all previous occasions he had treated you via counselling with no medication, but on this occasion he prescribed an antidepressant, Eleva 50mg daily.
On 18 January 2013, you were working on a balcony at premises, when you fell and sustained a fractured left neck of femur and a fractured skull. You had no loss of consciousness and at the Austin Hospital where you were admitted your head wound was sutured and you were discharged home on 23 January 2013, with there being no claimed concerns in respect of the skull fracture. You were prescribed the pain killing medication Oxycontin.
Dr Giaprakis visited you both in the hospital and upon your return home on a regular basis, weekly as far as I have been able to ascertain. It appears that you only took the antidepressant medication, he had earlier prescribed, for one day and then decided to cease its use. Dr Giaprakis was informed of that fact by your daughter Stephanie whilst you were still in hospital, and he determined after assessment that it was not necessary for you to restart its use at that stage. I will deal with his evidence relating to this material shortly.
Dr Giaprakis indicated to you that you should or could, because you were having trouble with the medication Oxycontin causing constipation, change your medication to Paracetamol or Panadeine as required. I am unaware as to whether or not you did continue with the Oxycontin or if you changed to the Panadeine. The hospital had discharged you with crutches and encouragement to exercise and progress to use of standing up and walking on the crutches in an attempt to regain your mobility as time progressed.
It is clear from the evidence that you were concerned about a number of matters, mainly financial, as a result of this accident. You were concerned you would lose your business, with your customers going elsewhere, as a result of your inability to work and consequent concern for the financial implications to yourself and your wife. It is clear that you had been heading towards retirement, and had been reducing your working hours, as a consequence. According to your daughter, you were informed that you had more than sufficient money to retire and be quite comfortable. An incident occurred during this recuperation time of a failure to pay an electricity and gas bill for the holiday house that you had in the Rosebud/Tootgarook area, with you searching through your receipts to try and establish that you had in fact paid those bills and making a statement that there must be some other more sinister reason for the gas and electricity being turned off.
The reference you made to Dr Giaprakis about people calling on both the landline and mobile, in all probability refers to the fact that your home landline number was one digit separate from the landline number of a licensed brothel and it was obvious that calls were being received by persons at your house on the landline that were as a result of client’s misdialling the brothel’s number. That would not of course appear on your mobile, as those numbers were entirely different. Your daughter in her statement indicated that she had seen an advertisement for the brothel and recognised the similarity of the number and had ascertained what was occurring. There was no evidence as to whether she had ever passed that information on to you, although it would be most surprising that she would keep that information to herself.
This next material to which I am about to refer is, once again, not in the Crown summary, but forms part of the depositions in your case. An analysis was undertaken of your home landline, and the mobile phones held by you and your family for the 26 March 2013. There was a call at 8.52am, which was an incoming telephone call attempting to contact the brothel, with a duration of 24 seconds. The caller who was intending to call the brothel stated that once he had established he had the wrong number he terminated the call. A further incoming telephone call occurred at 1.36pm in which the caller was informed that neither you nor your wife were at home, and the next recorded call was from your mobile phone at 2.37pm, it was an outgoing telephone call to your solicitor, Arthur Dine’s mobile phone for a duration of 3 seconds, you left no message on his message service.
Approximately five minutes after that call, at 2.43pm, there was an outgoing call, again from your mobile phone, to your son Illias’ mobile phone with a duration of 23 seconds. During that call to Illias, who was in the same home as you but in a different part, you said to him, ‘We’ve done something bad Louie’. Illias Misalis then ran to the master bedroom and discovered both you and your deceased wife. The next outgoing call was at 2.43pm and 48 seconds which was your son Ellias Misalis calling triple 000. Your son ran out of the house screaming, crying, whilst also speaking on the triple 000 number and as a result two neighbours came to the house. One, Ivanka Schembri, was a retired nurse and she ascertained that your wife had died and that you were conscious but with laboured breathing. You were admitted to hospital with two injuries to your neck, two incised wounds by way of stab wounds from scissors.
You have since that time given a number of versions of events, which appear to be inconsistent with the post-mortem examination and in most aspects unbelievable, which is how your counsel has submitted that I should treat them.
None of those versions or explanations contains material that adequately explains either the sequence of events on the day of the murder or the motivation behind the murder. You have differently claimed that your wife put the rope around her own neck and gave it to you to pull closed, and that you put the rope around her neck. You’ve also claimed that your wife stabbed you to the neck with the scissors, whilst also admitting that you stabbed yourself to the neck with the scissors, you’ve said that you stabbed her a ‘few times’ in the back, and said there was no argument, you have said you were angry with her, and said she was angry with you, and that you had an argument. No other persons were present, and no one has seen or heard anything that would shed a light upon what occurred in your bedroom that day. I shall deal with your comments in the various discussions with the police shortly.
A post-mortem examination was conducted by Dr David Ranson who said there were potentially three types of significant injury findings which could have potentially contributed to Zaharia Misalis’ death. There was a ligature mark around the front and side of the deceased’s neck with associated bruising, those marks were consistent with the grey rope that was found in the bathroom near the body of the deceased, which had been neatly folded and placed there. Further, she was found with a folded and rolled handkerchief in the larynx area, in that it had been pushed substantially down her throat and would have obstructed airflow through the larynx. This undoubtedly would have led to her death but the pathologist took the view that this may in fact have been placed in position after death, due to his belief that it would have been exceedingly difficult to place such an object in that position in the deceased’s body if she was alive and resisting.
The third area of injury was the presence of a large number of incised stab wounds. There were four on the right side of the back, some with recognisable features as having been caused by the blade of scissors, with evidence of deep penetration of those wounds. There were another approximately 10 incised wounds of a stab-type on the left side of the chest low down, and beneath this cluster of wounds there was damage to tissue, fragmentation of deep ribs, penetration and laceration to the left dome of the diaphragm, the heart, the aorta, the spleen, the stomach and the left lobe of the liver. A number of the wounds involved in the 10 stab wounds contained repeated thrusts within the wound, as the tracking indicated more injuries than were consistent with the number of stab wounds. An example would be that there were 30-plus incised injuries in the anterior and posterior wall of the stomach.
Dr Ranson in his findings stated:
This relative lack of blood within the abdominal and thoracic cavity despite the large number of stab wounds to internal structures in these areas suggests that the individual was already deceased or close to death, thus having a substantial drop in blood pressure and reduction in blood circulation when the stab wounds occurred. Given that it is not possible to say unequivocally that the stab wounds to the lower chest on both sides posteriorly necessarily occurred during life, I cannot conclude that the stab wounds, while causing potentially life threatening injuries internally necessarily played a direct part in the mechanism of the death.[1]
In his penultimate paragraph, Dr Ranson stated:
The specific ligature neck compression features seen in this individual comprised a deeply grooved abraded ligature mark that ran across the front of the neck and up on each side of the neck but was discontinuous over the back of the neck with each side of the visible line separated both horizontally and vertically. This pattern could be explained by a process of ligature hanging causing neck compression or ligature strangulation from behind and above. And finally on the basis of information available to me at this time, I believe a reasonable cause of death statement could be constructed as ligature compression of the neck.[2]
[1]Page 177 of the depositions.
[2]Page 177 of the depositions.
You were hospitalised as a result of the injuries you sustained at the scene of this murder.
You had no long term consequences as a result of those injuries to your neck, which are believed to be self-inflicted. The police spoke to you at the hospital on the day of the murder and asked you what occurred. You told them the following:
Going today to Austin for physio because I have broken bone here and my wife she said, ‘We’re not gonna go. I don’t feel like going’… I said, ‘We should go.’ She didn’t want to take me because I wasn’t able to drive. We have start a bit of an argument. We, never had arguments before, like, sometimes. And then she said, ‘I’ve had enough. I’m not going to take you anymore and I don’t want to hang around. I’ve had enough of everything.’ She goes you know… she went, then she got a rope, a rope and she put the rope around her neck. I said, ‘What are you doing’ to her and she said, ‘I don’t want my life. I want you to just ….. about’ you know. I said, ‘I can’t do that’. Then she starts calling me names and I said, ‘It’s not nice.’ She put the rope around her neck and she gave me the other end and said, ‘Don’t worry about it’, but it was just too late. She went down and blood start coming out of her and after I saw the blood I panicked myself a lot, I panic, I thought it’s bad. It’s bad and I take her to the en suite and then she was still going. She was still hanging around and she got the scissors, a pair of scissors and then she hurt, hurt me there on this side first. And I got the scissors and I stabbed her. And after that, I did this one myself because I was panicking. Now with me maybe, whatever I done I did it… I really admit I did it but it was something – I don’t know – the last few months… Very hard times because of my leg and I did it. She put this one first. Never had anything like that before but that’s why I killed, very devastated.
The references to your wife hurting you is a reference to her, you say, stabbing you on the right hand side of your neck with the scissors.
You were subsequently interviewed on 28 March 2013 at the Alfred Hospital. During that interview you explained to the police that this all started some six or seven years earlier, when people were making phone calls referring to things such as how many bitches have we got in the house if there were girls available all talking dirty words. As explained earlier, your phone number was of a marked similarity to that of a brothel. You told the police that you believed that ‘there were people out there trying to destroy us.’
You were then asked about what happened Tuesday, and you stated, starting at question 118: that you woke up in the morning, the phone rang again and you were asked again something along the lines of how many girls you’ve got there. Your wife asked you who rang and you explained it was those people again and you asked her, ‘who are these people’ to which she said she didn’t know. You said you were both a little bit upset and down a bit. You continued on saying, ‘And then we just start little bit – talking little bit funny to her.’ And then I start doing my exercises. Then she said, ‘If you don’t believe me, if you’re a man or something and she had a rope. She throw it on top of me, I got little bit of fright but that wasn’t the case and then I got the rope and I put it around her neck…’
You were then asked at:
Q120:What, tell me everything you can remember about putting the rope around Zaharia neck.
A:She had somewhere, I don’t know where, she had some scissors and she – after I got up and gone towards the en suite she just got me a little bit here, on the side. Then we start all over the place…
Q121: What happened then George?
A:As we were going to the en suite, I fall down and I stabbed a few times in the back. And after that I don’t know – fell down and then – fell down. Then I wake up after little while. I don’t know I was – I thought it was a dream. And then, then, I called my son Louie. I said to him ‘You come up – I’ve done something very bad’. That’s what happened, that’s all I can remember.
You told the police that your wife brought the rope from the garage and that the knots had already been tied in that rope. It was a rope that you used for working around the house. You were asleep and then doing your exercises in the morning when your wife brought the rope in. You repeated very much the same story that you told on the day of the death, saying that you were asking questions about the phone calls. You said, ‘You both got upset, she got upset, I got upset’. You were asking her ‘what were they doing there, why were they calling you’. She said she didn’t know, that’s when she got upset, got the rope and threw it on you. You picked up the rope and you put it around her neck and that was it.
You said at different times through that interview where is your wife now and that was after you had been told on a number of occasions that she was in fact dead. You told the police at Q169, when asked how hard you think you pulled the rope, you said that you thought or this was a joke I will just let her go and you told them that after you then saw a bit of blood coming on the side of the bed you thought it’s blood, you got scared and you needed to keep going. You said that Zaharia tried to escape a little bit but not much. You told the police at Q172 in answer to ‘What did she do to try and escape?’ You said, ‘She tried to escape, no, she didn’t put too much effort to escape.’
And then at:
Q173: Can you tell me what she did though to try and escape?
A: Just pushed my hands around, then I just did what I did.
Q175: What happened then?
A:I still had the rope hanging on my hands and I pulled it tighter. She wasn’t even talking much. I dunno why, she wasn’t even…
Q176:Was the rope tight enough to stop her voice coming out?
A:I don’t know about that – how tight it was, but she wasn’t screaming or anything.
Q177:George, when you were pulling the rope was Zaharia standing up or was she on the ground?
A:She was on her knees.
You told the police that after you had used the rope she was lying face down and you dragged her from the bedroom to the en suite. And then:
Q230:Face down. So again can you describe to me how you moved her from the bedroom to the en suite? You said you picked her up – up by the hands and arms?
A: Her arms.
Q231: Did you drag her in face down?
A: Yeah.
Q232:Face down and when you got her into, when you let go of her in the en suite, did she move or try and get away?
A: No. She wasn’t moving much.
You told the police that when she was in the en suite you picked up the scissors and you just went crazy and stabbed her in the back a few times. You told police that she was lying on her front face down, you were stabbing her in the back and at the time you did that you were on your knees. You said to the police that you fell down at some point after this and that you woke up because you believed you kind of lost consciousness. You found yourself near the door of the en suite but you had no idea how you got there. You believed it must have been a dream. But you also told the police that when you woke up you saw the rope, you got it, you collected it and tidied it up neatly, it having been already removed from Zaharia’s neck. It was near the doorway between the en suite and the bedroom. You were asked about a handkerchief that was shoved deep into the throat of Zaharia and you said you have no idea as to how that got in her throat.
Then at Q340:
Q340: Where you worried about her screaming or shouting?
A: Yes I was, yeah.
Q342:So what did you do if you were worried about her screaming or shouting what did you do?
A:I had the rope around the neck and the – that make it stop. I thought it’s going to be like that.
You told the police in this interview in answer to questions:
Q373: And what was it in relation to those phone calls that caused an argument.
A: It’s just an argument.
Q374: Yeah.
A: Just an argument, yeah.
Q375: So, were you angry?
A: I was angry but not too angry.
Q376: Ok.
A: I was angry.
Q377: Can you tell me what it was that made you angry?
A:I don’t want strangers talking, ringing and talking like that. That’s one thing and that’s the most important.
Q378:Ok. What was it that made you angry at your wife?
A:She threw the rope. Ok. Then I got up and she just, she had her scissors at the same time and she just went bang.
Q379:OK so when.
A:I was sit. I was on my bedroom on my back and doing exercising.
Q380So were you exercising and arguing at the same time?
A:Exercising and arguing at the same time and then once she walking into the bedroom and then she got the rope from somewhere and she throw it over me.
Q381:While you were lying on the bed?
A:It was when I was lying in bed. Yeah.
Q382:What did she say when she threw the rope at you?
A:I dunno know exactly. I don’t.
Q383:Did that make you angry, the fact that she threw the rope at you or?
A:When I said about the phone call I said what’s happened but she goes to me ‘If you are man you find out yourself.…’ Wasn’t angry at this stage for me to become so angry.
Q384:So.
A:I was a little bit angry, not to that stage.
Q385:Yep.
A:That point.
Q386:Yep.
A:And that’s what triggered the whole thing.
Q387:So, was it the throwing of the rope or the fact that she said ‘If you were a man you would find out?’
A:The whole thing.
Q388:Yep.
A:Like the whole thing. It just came one after the other.
Then continuing on at Q395 where you had already told the police you were in the sitting position on the bed.
Q:She walked towards you, what did she do?
A:She had this item somewhere. I don’t know where, she had the item. Brought it out, and she just get – got me with the scissors.
Q396:When you say got you, what do you mean?
A:She just hit me with the scissors, the item on this side.
Q397:And where, on your neck?
A:On the neck, yeah.
Further clarification and then:
Q400:So you are pointing to your left side?
A:On this side yes.
Q401:Ok. Did that cause an injury?
A:It caused little injury.
Q402:Yeah.
A:Not much, not much.
Q403:What did you do then?
A:Then I got the rope and I just put around the neck.
Q404:Ok. So you’re saying that she had scissors in her hand?
A:Yeap.
Q405:And she got you in the left side of the neck with the scissors?
A:Yeap.
Q406:You got the scissors off her?
A:I got the scissors. I throw it away.
Q407:You threw them away?
A:Threw them away.
Q409:You’re still sitting down?
A:Yes. I throw them away and I grabbed her and I just put her there.
Q414:What position was she in when you put her down on the ground?
A:Face down.
Q415:Face down.
A:Face down. Yes, the knees, on her knees and I grabbed the head and I just put the tie the rope around.
Your counsel has placed heavy emphasis and reliance upon the case of R v Verdins[3] and has tendered reports from Dr Danny Sullivan, psychiatrist and Mr Patrick Newton psychologist.
[3](2007) 16 VR 269.
In the report from Dr Sullivan, he stated:
It is likely that prior to the alleged offences Mr Misalis was suffering a moderate depressive episode as set out in the International Classification of Diseases 10th revision (ICD-10). This was associated with anxiety symptoms and mild paranoia with persecutory interpretations of life events, falling short of delusional. There is insufficient information to confirm a diagnosis of depression with psychotic features. Any psychotic features noted by Mr Misalis were transient, ill-formed, or not clearly of delusional levels of preoccupation.[4]
[4]Exhibit 4, Report of Dr Danny Sullivan dated 4 March 2014 paragraph 47.
At paragraph 54 through to 58 he stated:
54I have considered the availability of a mental impairment defence as set out at 220 of the Crimes Mental Impairment and Unfitness to be Tried Act 1997. It is not clear that at the time of the alleged offence Mr Misalis was suffering a disease of the mind which impaired his capacity to know the nature and quality of his conduct or prevented him from reasoning about the wrongfulness of his conduct. I do not believe that Mr Misalis has such a defence available.[5]
55I am of the opinion that Mr Misalis’ mental state at the time of the alleged offence was strongly associated with the events. In particular, I consider that his capacity to think clearly and make calm and rational choices was markedly impaired. He was preoccupied with a range of circumstances and sufficiently depressed that he could not focus on the reality of his situation without viewing his life through a depressive prism.
56From Mr Misalis’ incomprehension of how he could have acted so, and the lack of any strong motive, I infer that the intent of the offence was obscured, and consider that depression is likely to have been integral to his actions. He describes suddenly arising anger and loss of self-control, impaired recollection of the events and a sense of being estranged from the events. Such impaired recollection is commonly described by the protagonists of violent offences.
57I consider that on any of the alleged accounts of the events which unfolded in the Misalis’ bedroom, his judgment was impaired by depressive disorder, which reduces the capacity for effective problem solving and realistic appraisal of events and their significance.
58There is no indication that Mr Misalis was disinhibited at the time of the alleged offence.
[5]Ibid.
Dr Sullivan’s findings are clearly directed towards the matters contained in paragraph 26 of the R v Verdins[6] where the court stated:
[6][2007] 16 VR 269, 275 [25], [26].
25.… It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.
26.Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.[7]
[7]Footnotes omitted.
Dr Sullivan found, with the exception of disinhibition, that you had all of those impacts as a result of your moderate depressive episode. This was asserted to be based upon information from you, the depositional material, including the report of Dr Giaprakis and a mental health court liaison service psychiatric nurse, Ms J Cheslin, what is described as collateral information from your daughter, together with your subsequent behaviour in June of 2013 when you assaulted a nurse within the prison system, together with a neuropsychological assessment indicating a mild cognitive impairment. At the time of the writing of this report, you were being prescribed Olanzapine, an antipsychotic medication; Pristiq, an antidepressant; and Allopurinol, a medication for gout.
You had been transferred from the Melbourne Assessment Prison to Thomas Embling on 6 June 2013 as a result of assaulting a nurse without warning or explanation.
Dr Sullivan gave evidence before me on the hearing of your plea, and I found his evidence very troubling. He first saw you in May 2013 and reviewed you again in September 2013. In his report he described you as having a ‘moderate depressive episode’, but during his evidence before me referred to you having ‘severe depression’ when asked questions relating to his determinations. When specific questions were asked as to the basis upon which he came to certain conclusions, I found the explanations less than satisfying. I asked a question in relation to impairment of rational choices:
Can I ask in relation to that doctor, in what way was it markedly impaired, what was the impairment to be able to think clearly and make calm and rational choices?
The explanations provided in answer to that question were lengthy, indicating first of all a reliance upon your general practitioner Dr Giaprakis prescribing antidepressants to you for the first time in your life just prior to your fall from the roof, and when pressed upon your failure to take them, and Dr Giaprakis failing to re‑prescribe or direct you that it was important for you to take that medication, his view was that Dr Giaprakis was in all probability just concerned with your pain relief.[8]
[8]Page 71 plea transcript.
It should be noted that this is totally inconsistent with the statement of Dr Giaprakis provided to your instructing solicitors answering specific queries, together with a copy of those responses being included in the statement of Dr Giaprakis in the depositions,[9] Dr Giaprakis stated in response to specific questions raised by your instructing solicitors:
(1)I have treated Mr Misalis for over 32 years from 17 September 1980 to 15 March 2013.
(2)As described above, Mr Misalis presented with mild emotional symptoms in December 1998, August 2005, October 2006 and 2009. He was particularly upset about prank telephone calls in January 2013. I recommended that he try antidepressant medication at that stage. However, he took the medication for only one day, and a few days later he was admitted to the Austin Hospital following a fall. Although he was teary, sad and frustrated at times following his discharge from hospital, I did not consider that he had any significant depressive symptoms that required antidepressant medication.
(3)I have never referred Mr Misalis to a psychiatrist or a psychologist. Although he presented with some emotional problems from time to time, I did not consider these to be serious enough to warrant referral to a specialist.
(4)As described above, Mr Misalis’ mood was low when he was first discharged from the Austin Hospital. However, his mood seemed to improve as his physical condition improved. At no time after his discharge from hospital was I concerned enough about his mental state that he required antidepressant medication or referral to a psychiatrist or psychologist.
(5)As described above, I saw Mr Misalis on several occasions for mild emotional symptoms, including features of anxiety or mild depression. He never told me that he was hearing voices and at no time did I consider him to be psychotic. Moreover, I deny telling Stephanie that her father told me that he was hearing voices.
[9]Page 187 [4].
These positive statements are inconsistent with what Dr Sullivan tells me of what he presumes your condition must have been at the time of the occurrence of this murder. The second basis upon which Dr Sullivan relied was that the killing did not appear to have any rational basis.
You were unable to explain to Dr Sullivan the motive or reason why you became angry with your wife and killed her. He also relied upon the lack of preceding acrimony or arguments in your relationship. He said you were adamant however that there was no issue between you and your wife about the historical sex offence with which you were to be interviewed by the police. There was no discussion about the lengthy extramarital relationship in which you had been involved, so you informed Dr Sullivan. You told Dr Sullivan there just had been no discussion or arguments about any of it. He relied upon your inability to explain and to provide a clear and logical explanation as to what occurred. He took the view that you appeared to be genuinely puzzled as to what had happened.
He continued when trying to explain what he meant by saying that the offence was obscured and that the depression was likely to have been integral to your actions. He stated at page 77:
I certainly think that the nature of Mr Misalis’ unusual depression with its confusional aspects, with its persecutory flavour but perhaps not falling into the realm of a psychotic illness was one of the reasons that he can’t explain, that other people can’t understand what has happened. I think that the main mental factors which I see as associated with the offence and in the absence of any other …[10]
Continuing shortly thereafter:
… in this situation my perspective is that his difficulties in thinking, his preoccupation with a range of worries which other people might consider minor but which in his mind became – had become very significant. His worries about his finances, his leg, being charged by the police, I think it assumed an unhealthy significance in Mr Misalis’ thinking sufficient to render him depressed and in that sense not to be able to reason as sensibly as he normally would be able to about what was happening in his life.
[10]Page 77 plea transcript.
When asked again to explain exactly what he means by ‘the intent of the offence was obscured’, he said:
The second aspect in terms of focussing upon the intent is that I can’t see an obvious intent which would be associated with a mental disorder which is, of course, the area that I’m being asked to comment upon explicitly, such as with a delusion or with a very clear causal association. The next aspect I have is that this is a man who has a severe depression. It’s a depression which is evident from his arrival in custody. It’s a depression which was evident, if not severe, beforehand from the accounts of the GP and its depression which has been significant enough to warrant, firstly, for the first time in his life the prescription of antidepressants and secondly observations from other people that his demeanour had changed. So in that context we tend to ask the question why has this person at this time developed these conditions, and in this situation I see that he has developed a depressive illness which has unusual aspects and the words that I’ve used there are, firstly, pseudo dementia so it’s got a confusional aspect which makes it look as though he may be dementing or he may have some form of brain disorder which is affecting his presentation, and, secondly, it’s got some psychotic elements which aren’t a clear psychotic illness but which are suitably unusual and usually mapped to the severity of the depression. So from my point of view as a psychiatrist I would regard those aspects as significant and relevant in a man who doesn’t have any other pre-morbid history of significant mental disorder which meets the threshold for treatment or for clear diagnosis.
In relation to the issue of impairment of judgement and ability to reason in a calm manner, in response to a question asked by your counsel, he stated:
Once more there are two significant aspects to this, your Honour. The first is that people with significant depression think in a depressed way. They interpret the past in a negative or depressed way. They underestimate their past achievements, they are less optimistic about the future and they regard their present as hopeless. So the first thing is that depression takes the nature of their observations of past, present and future, but the second aspect is that depression itself is associated with alterations in thinking. So a neuropsychologist will typically find a slowing of processing, they will find that people become more overwhelmed when they are given a high level of complex tasks or they have competing demands and they notice that people have real trouble shifting between tasks. So there is some clear neuropsychological repercussions in an everyday sense, people with depression, they will report absentmindedness and forgetfulness. They report a little more confusion dealing with tasks which previously they had mastered and they often report that they are distracted by internal ruminations or other worries. So once people meet a level of clinical depression, to use that term generically, we see that it is manifest in increased difficulties coping with previously normal cognitive tasks.
At that point I asked: but how would it come to the point that it would so impact upon a person’s ability to reason that they would kill someone they loved? Dr Sullivan’s answer was:
Well the killing part from my point of view, in that sense, is unknowable. But let me perhaps talk about the effects of cognition on a person’s ability to reason. We know that people with moderate to severe depression become preoccupied with guilt about things they might have done. We know that they become concerned about finances, that they might become bankrupt or that their money will run out before they die. They become concerned about their capacity to manage and in many cases they’ll have anxiety or panic attacks. All of those are features which are irrational in the sense that they don’t respond to straightforward management. People can be pointed to their bank books but they still believe that somehow their money might go. They can be given financial advice but that still won’t necessarily accept that that is correct. So depression of clinical significance affects an ability to reason and to think through logically whether a condition is actually the way that they think it is.
Her Honour:
Even if I accept all of that, how does it get to the point that it takes away a person’s moral compass, because as you say he understands right and wrong at that time. He is able to comprehend right and wrong, so how does it take that away and turn them into a person that can then become involved in what can only be described as a frenzied killing?
Answer:
Your Honour I can’t answer that question clearly without speculating, but we certainly know from mentally disordered homicides and looking at the features of those homicides which are different from the run of the mill homicides, if I can use that term, that often the capacity to think about what the future holds may have some relevance, so it may be that the person believes that there is a threat which affects them and their partners, it may be that they misinterpret.
You were taken to the Alfred Hospital after you had murdered your wife, and the only reference to your mental health situation to be found in the records is contained at page 714 of the depositions where it stated:
While an inpatient Mr Misalis had an inpatient review by a psychiatric team who found him to be settled and not an acute risk to himself or others at the time of review (29/3/13) and the team was happy to reassess the patient when needed and on remand, for further psychiatric input (as per Dr T Long).
You were discharged on a course of Augmentin DF and PRN paracetamol. There was no prescription for any antidepressant or antipsychotic medication at the time you were in hospital at the Alfred, even after a psychiatric evaluation. There is no doubt that you were sad, that you were noted to have a flat effect, and were slow in responding to questions, although described as alert and orientated and co-operative.
I also have to take into account your personal circumstances. You were born in Meliti, Florina, Greece on 9 March 1953; you are 61 years of age. You migrated to Australia in 1970 when you were aged 17, and although there are conflicting reports in respect of your education, I accept you were not extensively educated in Greece, and you arrived in Australia without much comprehension of English. You were the second of five children and your family were farmers. Although Dr Sullivan indicated that you had completed Year 12, I find it more likely that what you told Mr Newton was in fact correct. He reported that you attended a primary school in your village where you learnt to read and write some Greek and acquired the rudiments of numeracy. When you migrated to Australia you obtained some basic language training but initially were most concerned with finding employment. You settled in Northcote, attended night school to try and acquire some English and obtained employment working in factories, building and concreting. Your English is still not particularly good, but you are able to understand and make yourself understood clearly enough. You met your wife Zaharia shortly after you arrived in Australia and you married in the mid-1970s. You subsequently moved on to installing air conditioners, and from that you started to establish your own business in that particular field, which you operated quite successfully until the fall that you suffered in early 2013. You had three children who are now aged between 27 and 38. You and your wife were living in South Morang and your two unmarried children were residing with you. Your daughter Vickie Misalis, was living with her husband and children. Your three children continue to support you, despite the fact that you have killed their mother; it is clear from the document that was tendered on their behalf that they entirely forgive you for the murder of their mother, and they don’t intend to lose you, their father, as well. For that you should consider yourself fortunate. There is no doubt that the support of your children will be helpful to you in the future. You were not insured for disability insurance at the time of the accident, and despite your reasonably good financial position and your plan to retire, it was a cause of stress that you were not working and producing an income, and what would occur to your business long term. You and your wife were described as having a loving and caring relationship, harmonious and happy until approximately 12 months ago.
In relation to that situation between your wife and yourself, there is material which has been filed by your children to which I have had some regard. Your daughter Stephanie made a statement which was on the police brief and forms part of the depositions. The first statement was taken on the day of the murder in March 2013. She provided a subsequent statement on 10 April. I accept the contents of her statement of the 26 March 2013, and while I accept some of the material contained in her statement of 10 April, I do not accept the totality of it. The evidence of Stephanie Misalis in respect to the situation of your mental health was in direct contrast and conflict with that of Dr Giaprakis, where she stated in her statement to police at page 88 of the depositions:
In the first or second visit post Dad being discharged, Dr Louie went into the bedroom and had a chat with Mum and Dad with the door closed. Afterwards Mum and I walked to the door. Dr Louie said, ‘I don’t know how much you know about how your Dad has been feeling over the last 12 months’. I sort of made out that I knew a bit, as I wanted to feel that he could talk to me about how Dad was feeling. He then said Dad was not sleeping properly and was having a lot of nightmares when he did sleep. He said that Dad had been hallucinating and hearing voices. I asked him what he was going to do about it and whether he had had mental health assessments done. Dr Louie was a man of few words and he sort of seemed dismissive towards me and told me he would be back next week.
As I indicated earlier, Dr Giaprakis said no such conversation ever occurred and he passed no such information on to Stephanie. None of this was mentioned to the police initially at the time of her initial statement and I am unfortunately quite sceptical as to the contents of this, and other matters she declares occurred in her subsequent statement to the police, and I will not be relying upon the contents of that statement in relation to your mental health status during the relevant time.
The evidence of other witnesses, being family friends, who saw you during that time as to your mental health indicated that you were after your accident worried about your business, your ability to recover from the accident,
Your daughter Vickie Misalis, in a detailed statement on 10 April, also indicated that the first sign of any problems which she noticed was after the fall at your home. She noticed that at times after that you would say you were confused and didn’t know what was going on and that you seemed forgetful. She expressed some concern about how you and your wife reacted to the power bills not being paid in relation to the Rosebud holiday house.
There is no doubt you were incapacitated to a large degree as a result of the fall. It is clear that your wife was also focussed upon your health and your problems in relation to the fall that you had suffered. She nursed you and cared for you, and declined the offer of a nurse to assist in that task. I also have no doubt that you were both stressed as a result of the accident, and that you were in fact depressed to a degree, but I accept what Dr Giaprakis stated, which was that as your physical condition improved so did your mental health. Your mental health was such that this doctor who had been treating you for all of these years, and knew you well, did not believe that there was any necessity for medication or referral to any specialist treater in relation to your mental health at the time shortly prior to this offending.
I accept there may have been a degree of deterioration between the time Dr Giaprakis last saw you and the time of the murder of your wife, but there is nothing to indicate that you had entered into any form of psychotic or florid state or that your depression had become severe or so severe that you had entered into the various stages described by Dr Sullivan as to loss of the ability to reason in a calm moderate sense, that it was borderline as to whether you had an understanding of right and wrong.
Dr Sullivan conceded, rightly, that the fact of the statement that you made to your son when you spoke to him, very shortly after the murder occurred, stating that you had done something wrong was a clear indication that you were aware that your actions in killing your wife were in fact not only wrong, but illegal. What I also note and consider to be of some significance is that five minutes prior to ringing your son you rang your solicitor. There can be no reason for you to ring your solicitor after murdering your wife, except that you have an appreciation, a clear appreciation, that what you had done was to commit a serious crime. The fact that your solicitor did not hear the phone and didn’t answer does not alter that conclusion. Your first thought was not to ring your son, it was to ring your lawyer.
Equally, on each occasion you were spoken to by the police, you quite properly, exercised your right to legal advice prior to participating in any form of interview. I draw no adverse inferences form that but they do not seem to be the actions of a man who was confused or unable to comprehend what he has done, or what has happened.
I find, those factors to which I have just referred, in combination with all of the other material to which I have referred, convinces me that you are not a person to whom all levels of Verdins apply. I have no doubt that you are depressed at this time, and that you were in a significantly depressed state at the time you were transferred to Thomas Embling in June of 2013. But that is not the time at which you committed the murder. You were in the unusual position of having a medical practitioner caring for you and seeing you very regularly over that time, he was a person who knew you, and your emotional fragilities and vulnerabilities. It is obvious that he was concerned about your mental health and was keeping a particularly close watch upon that. You were also under the care of the Austin Hospital who one would expect would have noticed a major depressive episode occurring in a patient, even one being cared for by the orthopaedic department. Finally you were hospitalised immediately after you had murdered your wife, and a psychiatric assessment was conducted. There was nothing on your file that was brought to my attention by your counsel or by the Crown, despite my request, to indicate that at the time of admission to hospital or in the immediate aftermath you were in any major depressive episode, or to use the words of Dr Sullivan in a moderate to severe depressive episode, or the words of Mr Newton suffering a major depressive disorder with melancholic features, assessed at a severe level.
Each of those experts refer to the fact that it was ‘likely’ or it was ‘plausible to conclude that he would have’, which is appropriate language as what is being done is a reconstruction based upon what they have read, or been told either by you or others around you, with varying degrees of reliability. The treating doctors of which there were many, did not see or recognise any such illness either shortly before or shortly after the murder having occurred, as has been propounded by Dr Sullivan and Mr Newton. I am accordingly not persuaded on the balance of probabilities that you were suffering to the degree indicated by the experts reports.
Verdins broadened the law established by cases such as R v Mooney[11], R v Anderson[12] and R v Tsiaris[13], by stating there was no longer a requirement that the mental illness demonstrated, be a serious psychiatric illness not amounting to insanity. That is the law as it stands today.
[11]Unreported, Victorian Court of Crim Appeal 21, June 1978.
[12][1981] VR 155, 160.
[13][1996] 1 VR 398.
The court in Verdins, however cited with approval R v Matthews, a decision of the New South Wales Court of Criminal Appeal which said that the reason for giving less weight to general deterrence in the case of an offender suffering from a mental disorder or abnormality lay in the circumstance that –
… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.[14]
[14](2004) 145 A Crim R 445, 450.
Whilst Verdins permits the courts to ameliorate sentences if someone is suffering from a mental illness, it could not ever have been meant to extend that leniency to someone who is just a little anxious, or has some mild depression, unless as Matthews says the person lacks the ability to make reasoned or ordered judgments, or has a limited appreciation of the wrongfulness of the act, or of its moral culpability. Anti-depression medication is recognised as one of the most commonly prescribed medications in our community. We live in more stressful times, more people are anxious, more people are stressed, more people are sad, unhappy and depressed, or at the least more people are being treated for those conditions.
For Verdins to apply in categories such as reducing moral culpability, reducing the need for general deterrence and the like, the situation is one where the link between the mental illness and the commission of the offence must be one that is demonstrable, clear, obvious or at the least comprehensible of a reasonable explanation as to the connection, and certainly not tenuous. It should be capable of being explained or demonstrated, such that a member of the public would understand why a person was deserving of a lessening of their punishment due to the level of their illness, as was stated in the passage from Matthews set out above. There has been a tendency to argue and urge the court to permit any form of mental health issue to enliven the different categories of Verdins, particularly general and specific deterrence, as well as difficulties in dealing with incarceration. I am of the opinion that those matters require careful consideration, and not just an easy and general acceptance.
The reconstruction by experts of what the mental state of a criminal must have been, based upon what they are told by the person charged and limited other sources, must, at times, impose some very severe limitations on the reliability and dependability of those assessments.
I am prepared to accept that there is some limited application of Verdins in respect of amelioration of the sentence I would otherwise have passed, in that I accept that you had a degree of depression. However, I am not satisfied, on the balance of probabilities, that the depression you had was of such a level as to impair your ability to make calm and rational choices or to think clearly or to impair your ability to appreciate the wrongfulness of your conduct or to obscure the intent to commit the offence, or such that you were no longer able to exercise appropriate judgment. What I do accept is that your time in prison will be more onerous than a normal prisoner with no depression.
I cannot be satisfied beyond a reasonable doubt as to the motive for your offending, although it is clear that your actions and the problems that people observed in terms of your anxiety and possible depression occurred after the police had been to interview you in respect of the alleged sexual offending of a historical nature. Your wife, you say, was unaware that you had a longstanding extramarital relationship with a female relation of yours and I cannot say that she ever found out. I treat this as a motiveless crime, but it is motiveless because you are the only person who knows why you killed her.
You were able to say quite adamantly to Dr Sullivan that it was not because your wife had found out about those allegations or your previous relationship with the alleged victim, but you were unable to explain what it was about. You talked about her being angry with you and you being angry with her but with no basis and no explanation at all as to what was the cause of the anger. I shall not speculate about those matters and I will treat this as I said as a crime with an unknown motive.
However, the fact is that you are before this court for murdering your wife. She was a woman who had done nothing to hurt you. She had done nothing in fact but nurture you and care about you. During your illness, she looked after you, according to the statements of your children, with great dedication. She had done the books of your business over the years and had been of assistance to you in many capacities. She was also fretting over your health and had lost a substantial amount of weight during your recovery time from the accident. You had until relatively recently a good, happy relationship with her.
But the sad truth is that you are alive and in this court, and she is dead. She is another victim of domestic violence, whatever the underlying reason for that violence is. The courts and our community have said that women in particular must be protected from their partners. We have white ribbon days, we have marches in our streets in support of women and their right to not be abused or have their lives taken by their partners, but still it continues.
She was killed in a savage and brutal manner. The strangulation with the rope was undoubtedly brutal. It was submitted that your wife was dead or dying at the time that you inflicted the other injuries upon her and whilst that is probably correct, it does not alter the fact of the viciousness of the attack upon her either as the cause of her death, or the desecration of her body immediately post death. She was in her home, according to the material, going about her business in an ordinary way, caring for you. She should have been safe. She probably felt safe. Our community and our courts have consistently said, and more particularly in recent times, that women will be protected by the courts. That they have the right to feel safe from serious injury or death being caused by their partners. Your wife had the right to continue to enjoy her life, her future, her grandchildren, her retirement years, and you took all of those things from her. She is the victim in this case, not you, and whilst there has been no victim impact statement tendered in this case, it doesn’t mean that Zaharia Misalis is forgotten. She was obviously a decent, caring mother, grandmother and wife whose loss will be felt by her friends and her family. Her life like all others in our community is important, and that must be remembered and considered in the sentence that I impose upon you.
As I indicated, I will moderate your sentence in respect of Verdins as I accept that you have certainly a form of depression now which may well be at a moderate level. It is however improving and hopefully will continue to improve.
There are other factors in your favour that I will take into account. You are a person of good character, and I have read the character material put forward on your behalf. You pleaded guilty, although not an immediate indication of your guilt, it was not a long delayed acceptance. I accept that you have remorse and that the later years of your life will be served in a harsh environment for you. It will not be easy and I accept equally that you will be deprived of the company of your children and your grandchildren on a regular normal basis.
As I indicated, you are fortunate that your children intend to support you and undoubtedly you will still see them, but I accept not with the frequency that you would if you were not incarcerated but living in the community. I believe that general deterrence has a significant part to play. Specific deterrence, whilst it has some part to play I do not think has a very significant part to play in that you have been some 61 years a member of our community without committing any crime. This is clearly a crime of emotion, anger, almost fury, over some disagreement between your wife and yourself of which I am unaware. You are highly unlikely to be remarried or in a position of being in an intimate personal relationship again and it is highly unlikely such a tragic situation could arise. I also believe that you are quite sorrowful about the loss of your wife and you will not need any particular period of incarceration to remind you of that.
There is still a matter of denunciation, which to a degree goes hand in hand with general deterrence. It is important, as I said, that it be understood that people, women in particular, are to be safe in their own home; that we, the community, will not tolerate persons whom they love and care about killing them in the sanctity of their own home.
Taking all of those factors into account, including your plea of guilty, the relatively early stage of that plea, your remorse, the Verdins factors of which I am persuaded, your personal circumstances, and balancing that with the other factors to which I have already referred, you are convicted of one charge of the murder of your wife Zaharia Misalis and sentenced to 18 years imprisonment, I direct that you are to serve a minimum of 14 years before being eligible for parole.
Pursuant to S6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been a sentence of imprisonment for 20 years with a non parole period of 16 years.
Application for 464ZFB(1) retention of forensic sample is granted.
Application for a Disposal Order is granted.
Declare that 629 days pre‑sentence detention has been served in relation to this matter and such is to be noted in the records of the court.
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