R v Orfanidis
[2017] VSC 586
•26 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0191
| THE QUEEN |
| v |
| CHRISTOPHER ORFANIDIS |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 June and 28 July 2017 |
DATE OF SENTENCE: | 26 September 2017 |
CASE MAY BE CITED AS: | R v Orfanidis |
MEDIUM NEUTRAL CITATION: | [2017] VSC 586 |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Intentionally causing injury – Upper-range examples of offences – Offender and unknown co-offender pursued victims in a car chase for about 5 kilometres before assaulting them – Provocation – Deceased fired a shot at offender before car chase – Plea of guilty at first reasonable opportunity – Remorse – Additional hardship of imprisonment – Guarded prospects of rehabilitation – Total effective sentence of 10 years and six months imprisonment – Non-parole period of seven years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose QC (sentence) Ms S Borg (plea) | Office of Public Prosecutions |
| For the Accused | Mr I Hill QC with Ms G Morgan | Leanne Warren and Associates |
HIS HONOUR:
Christopher Orfanidis, you have pleaded guilty to the manslaughter of Phi Long Ung, and intentionally causing injury to his associate, a male known in these proceedings as Witness A. The maximum penalty for manslaughter is 20 years’ imprisonment and, for intentionally causing injury, 10 years’ imprisonment.
Circumstances of Offending
In July 2015, you were living in Libby Lane, Sunshine West, with your now fiancée.
On 3 July 2015, you took exception to a car, a Toyota, being parked opposite your premises. You politely asked the driver, Witness A, not to park outside your premises. He complied.
Two days later, Witness A was again parked opposite your premises. His passenger was Mr Ung. You pulled up in your Holden. Your passenger was an unknown male, whom I will call X. You got out of your car and remonstrated with Witness A for parking outside your premises again. He apologised, telling you he was just dropping off a mate.
You became violent, punching and kicking his car. You broke off his driver’s side mirror.
Witness A and Mr Ung drove off. They went up Fitzgerald Road but then did a U‑turn and came back past Libby Lane. You and X waved them down. Witness A made the mistake of stopping to speak to you. He said: “What the fuck’s your problem?”
Mr Ung partially climbed out of the passenger window and yelled at you and X to fuck off unless you wanted trouble.
You escalated things, threatening to kill them if they came back to Libby Lane. Mr Ung responded by threatening to kill you, to which you said “That’s it, you’re fucked. We’re going to get you now”.
You claim that during this exchange, when both cars were stationary, that Mr Ung fired a shot in your direction. The prosecution alleges that Mr Ung only fired a shot after Witness A and Mr Ung drove off and you and X chased them in the Holden.
I accept, on the balance of probabilities, that Mr Ung fired a shot prior to the high‑speed chase that ensued. Even though Witness A suggested in his second police statement that the shot was fired during the chase, he conceded, under cross‑examination at committal, that there was a bang consistent with a shot being fired, whilst both cars were stationary. He said he only ever heard one such bang.
I accept that you were provoked by the firing of the shot by Mr Ung in your direction and, that under the influence of that provocation, you gave chase. But I note that you had provoked Mr Ung’s act of provocation. You were the aggressor at the outset. You punched and kicked Witness A’s car, breaking off the driver’s side mirror. Shortly after, you waved down their car and threatened to kill them if they came back to Libby Lane.
After Mr Ung fired the shot, Witness A took off and they drove on to the freeway with you and X in pursuit. They drove for about five kilometres before turning on to the Ballarat Road off ramp. You were in close pursuit throughout.
You claim that Mr Ung fired more shots at your car during the chase. You said this to Jeffrey Cummins, the psychologist commissioned by your lawyers to provide a court report.
In this regard, you rely on a number of agreed facts, including that Mr Ung had a gun, that when the gun was recovered by investigators it had an empty magazine attached to it capable of holding five cartridges, that a fired cartridge case was located in the breech of the gun, that Mr Ung was found to be in possession of several spare live rounds of ammunition and that Mr Ung was wearing homemade body armour.
In my view, on the evidence before me, the suggestion that Mr Ung fired more than one shot does not rise above speculation. You made a no comment record of interview. You did not give evidence at your plea hearing. Witness A does not provide support for your claim. I am not satisfied on the balance of probabilities that Mr Ung fired multiple shots.
As previously mentioned, Witness A and Mr Ung turned off the Ring Road at the Ballarat Road off ramp. As you followed closely behind in your Holden, a speed camera recorded you as travelling at 123 km/h. Your Holden collided twice with the rear of the Toyota. I am not satisfied beyond reasonable doubt that you deliberately collided with the Toyota, which was braking. The second collision put the Toyota into a spin. It collided with a guardrail and came to a stop.
You and X got out of your car and Witness A and Mr Ung got out of theirs. Mr Ung was armed with a rifle which you wrested from his grip. You then struck him forcefully to the head, at least twice, with the wooden frame of the rifle. You also kicked him whilst he was curled up on the ground.
At the same time, X was punching and kicking and stomping on Witness A. You went over to Witness A and also hit him a few times as he lay on the ground, pleading for you to stop.
You then got back into your Holden and X got into the Toyota and the two of you drove off.
A motorist eventually stopped for Witness A. An ambulance and police attended the scene shortly after.
Both victims were taken to the Royal Melbourne Hospital. Mr Ung underwent emergency surgery for serious head injury but never recovered consciousness. He remained in a coma until his death on 21 July 2015. Dr Ranson, the pathologist, found the cause of death to be head injury, stating that “[t]he major trauma to this man comprised extensive head injuries with lacerations to the scalp, associated with widespread underlying bony damage.”
Mr Ung had also sustained other injuries including fractures to the fifth and seventh ribs.
Witness A’s injuries included a fractured seventh rib, fractured ring finger, a lung laceration and bruising and abrasions to the head.
I note that the prosecution attributes criminal responsibility to you for the injuries suffered by Witness A on the basis that you were both a perpetrator of blows to Witness A and a party to the blows inflicted on him by X in that you intentionally encouraged and assisted X to assault Witness A.[1]
[1]Amended Summary of Prosecution Opening dated 23 June 2017, footnote 68.
You assaulted Mr Ung to the head with considerable force. You struck him at least twice with a weapon, the wooden frame of the rifle. When he went to the ground, you continued to assault him. The entire assault may not have been protracted, but neither was it a momentary application of force. You did all this in a public place. You then left Mr Ung badly injured on the roadside.
When you physically attacked Mr Ung, you may have still been in a rage from him firing a shot at you earlier. But as you pursued him in your car over a distance of five to six kilometres, there was an opportunity for you to rein in your anger.
I accept the prosecution’s submission that this was an upper range example of the offence of manslaughter by unlawful and dangerous act. I take a similar view in relation to the offence of intentionally causing injury.
Your unlawful, violent and dangerous actions have resulted in a man’s death. Your principal victim, Mr Ung, who was 37 years of age at the time of his death, leaves behind two young children. His mother, father and sister, all of whom made victim impact statements, struggle to cope with his premature and violent death. No sentence that I impose can undo the harm that you have done. But I accept that you are remorseful for what you have done, as evidenced by your plea of guilty, for which you will receive a significant sentencing discount.[2]
[2]The plea of guilty was entered at the first reasonable opportunity.
Circumstances of Offender
I turn to your personal history.
You were born on 27 October 1983. You come from a law abiding family. Your father, now retired, was a factory insulation and maintenance worker. Your mother, also retired, was a loans manager for the Commonwealth Bank. Both your parents are still alive and together and supportive of you, as are your brother and sister. They all visit you in prison. Your sister wrote you a reference, as did a childhood friend.
According to what you told the psychologist, Jeffrey Cummins, when you were in Year 8, you were asked to leave St John’s Catholic School in Braybrook for disruptive behaviour. You went to Ardeer High School, but you were asked to leave there in Year 10 because of fighting.
You have had very little employment since leaving school and, no doubt, your longstanding, illicit drug use has contributed to that.
By the age of 14 you were using cannabis; by the age of 15, amphetamine or ‘speed’; and, from 17 onwards, methamphetamine or ‘ice’.
You told Mr Cummins that since you were 17 or 18, you have been a frequent user of methamphetamine and that it was not uncommon for you to use up to two grams per week. As well as using ice, you were also a regular user of GHB, leading up to your current offences.
Mr Cummins writes, at [40] of his report:
He has been a chronic poly drug user and at the time of his offending in July 2015, he was then dependent on both cannabis and methamphetamine and was also often using GHB. He was also frequently using Xanax and Valium, which were not then prescribed for him although they were previously prescribed for him.
Despite the longevity of your illicit drug use, you told Mr Cummins that you have never undertaken drug counselling or any residential drug detoxification or rehabilitation. That does not reflect well on you, especially in circumstances where you have a supportive family.
You were placed on the disability support pension in 2007 for an anxiety disorder.
In 2010, at a pre-arranged meeting with two men, you were shot in the stomach and right forearm and spent a week at Royal Melbourne Hospital. You declined to make a police statement.
That shooting, according to Mr Cummins, has contributed to you being paranoid at times, as has your use of illicit drugs.
You say that when you told Witness A not to park outside your place, you did so because you were paranoid that he and people associated with him may have been out to get you.
Unsurprisingly, given your drug history, you have a number of prior convictions. There are three prior convictions for physical violence.
At Melbourne Magistrates’ Court, on 9 November 2005, you were convicted of an unlawful assault and fined.
At Sunshine Magistrates’ Court, on 1 May 2008, you were convicted of recklessly causing injury and other offences for which you were sentenced to five months’ imprisonment, which was wholly suspended for 12 months.
At Sunshine Magistrates’ Court, on 28 October 2008, you were convicted of another count of recklessly cause injury and for that offence, and other offences, sentenced to an aggregate term of 10 months’ imprisonment. In relation to that prior conviction for recklessly cause injury, I note that you struck the victim to the head with an object.
In addition to these prior convictions for actual violence, you have a number of prior convictions for possessing weapons, including possessing firearms and ammunition.
I am guarded about your prospects of rehabilitation. Although you successfully completed parole in 2009 and there was a break until July 2014 when you were convicted of driving whilst disqualified, throughout that period, on your own admission, you were using illicit drugs, including ice.
Jeffrey Cummins, at [48] of his report, was also guarded about your prospects of rehabilitation.
Your counsel, Mr Hill QC, submitted that there were some prospects of rehabilitation. That is as high as one can put it. You have the support of your family and your fiancée, with whom you have been in a relationship for about five years, but you had their support in July 2015 when the current offending occurred.
On 11 May 2017, you were stabbed in prison and suffered a punctured lung. You declined to make a police statement. You spent time in protection. I accept that this incident is likely to have exacerbated your anxiety in prison and that prison is likely to be harder for you as a consequence. I take that into account in your favour, as I do the fact that you spent one year in custody on remand in 2006 and 2007 for alleged offending of which you were ultimately discharged.
But the sentences I impose on you must reflect the gravity of your current offending. Just punishment, denunciation and general and specific deterrence must be weighty considerations in your case.
Sentences
For the offence of manslaughter, I sentence you to 10 years’ imprisonment. That is the base sentence.
For the offence of intentionally causing injury, I sentence you to two years’ imprisonment.
I order that six months of that sentence be served cumulatively on the base sentence of 10 years’ imprisonment.
Thus, the total effective sentence is 10 years and six months’ imprisonment.
I declare a non‑parole period of seven years.
I declare that you have already served 802 days by way of pre‑sentence detention.
Pursuant to s 6AAA of the Sentencing Act1991, I declare that but for your plea of guilty, I would have imposed a sentence of 13 years and six months’ imprisonment with a non‑parole period of nine years.
Because of your use of a motor vehicle in connection with your offending, I cancel any driver’s licence that you hold and disqualify you from driving for two years, commencing immediately.
I make the disposal order that is sought by the prosecution and which I understand is not opposed by the defence.
At this point in time, I decline to make the forfeiture order that is sought by the prosecution, but I direct that your Holden may be retained by police and may be the subject of a further hearing if the parties are unable to resolve the matter. If the parties do resolve the matter, I would be content to deal with that matter on the papers.
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