R v Papathanasiou
[2016] VSC 722
•2 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0095
Between:
| THE QUEEN | |
| and | |
| CHRISTOS PAPATHANASIOU | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 25 October & 2 December 2016 | |
DATE OF SENTENCE: | 2 December 2016 | |
CASE MAY BE CITED AS: | R v Papathanasiou | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 722 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury, aggravated burglary and theft – Accused, without warning, stabbed former relative repeatedly to face, head and limbs, all but severing her nose – Victim suffers debilitating psychological and physical scarring – Accused ran to another house, entered while persons present and stole car keys and then car – Objectively very grave assault but very low moral culpability because of accused’s psychotic state – Accused’s behaviour caused by psychosis, precipitated by schizophrenia – Corresponding reduction in weight to general deterrence, specific deterrence, curial denunciation and just punishment – Pleas of guilty despite prosecution preparedness to consent to verdict of not guilty by reason of mental impairment – Remorse – Limited criminal history – Impact of schizophrenia on hardship of imprisonment – Illness now controlled by antipsychotic medication – Good prospects of rehabilitation – Total effective sentence of seven years and six months’ imprisonment with non-parole period of four years – But for pleas of guilty, total effective sentence of ten years and six months’ imprisonment with non-parole period of seven years – But for mental illness and pleas of guilty, total effective sentence in order of 13 or 14 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr T Marsh (25 October 2016) Ms D Dempsey (2 December 2016) | Victoria Legal Aid |
HIS HONOUR:
Overview
Early on the morning of 14 December 2015, Christos Papathanasiou visited his cousin’s ex-wife Alexia Ioannou at her home. She made him a coffee. After smoking a cigarette and drinking his coffee on the porch, Mr Papathanasiou went to the kitchen and took up a large knife. He then went to the lounge room with the knife raised in his hand and asked Ms Ioannou, “Why would you do that to me?” Ms Ioannou initially thought he was joking but then realized he was about to attack her. She screamed but was cornered. Mr Papathanasiou stabbed her in the face and head. She fell to the ground as he continued to stab her. She thought she was going to die. Somehow, Ms Ioannou managed to get up and flee towards the bedroom where her two guests were staying. Mr Papathanasiou continued to stab her from behind as she ran. Her guests awoke and saw Ms Ioannou in the hallway with Mr Papathanasiou behind her holding a knife. One of the guests screamed at him to stop and he ran out the front door.
Mr Papathanasiou then ran to an unrelated address in Berwick, about two kilometres away. There, he entered the house and said to the occupants, “Hello, hello” and, “I need your keys, I need your keys, I’ve just killed someone.”
He then grabbed some car keys from a desk, went outside and tried to start a Ford sedan parked out the front. He yelled back to the occupants that he had the wrong keys. One of them pointed to a Toyota nearby. Mr Papathanasiou then got into the Toyota and drove away.
Ms Ioannou suffered at least 20 wounds to her head, face and limbs. Her nose was fractured and all but completely severed. She underwent emergency plastic surgery. While her wounds have healed, she still suffers significant physical and psychological scarring.
Six days later, on 20 December 2015, the Toyota was found at a vacant address in Endeavour Hills when the owners arrived to move in. Mr Papathanasiou was there too. He fled on foot when the owners arrived.
A short time later, he was arrested in Eumemmering. He was charged and has remained in custody ever since.
Mr Papathanasiou was ultimately indicted in this Court on charges of intentionally causing serious injury to Ms Ioannou, aggravated burglary of the Berwick house and theft of the Toyota. He has pleaded guilty and now falls to be sentenced for those crimes.
Objectively, the offence against Ms Ioannou is very grave. It was a ferocious and frenzied attack and must have been a terrifying ordeal. Absent two very important matters in mitigation, the total effective sentence would have been almost twice as long as the one I am about to impose. Those factors are, first, that, at the time of the offending, Mr Papathanasiou was in the grips of a psychotic episode caused by schizophrenia which is now controlled by medication; and, second, he has pleaded guilty despite the fact that the Director accepts that Mr Papathanasiou was so unwell at the time that, had he chosen to plead not guilty by reason of mental impairment, he would have supported that defence and such a verdict.
Background and circumstances giving rise to the offence
Introduction
Before passing sentence, I shall turn to a more detailed summary of the background and circumstances giving rise to the offences. They were spelt out in the prosecution opening, which was read to the Court by Mr Brown, who appeared for the Director on the plea.
Christos Papathanasiou was 32 years old at the time of the offending and is now 33. Alexia Ioannou was previously related to him by marriage. Mr Papathanasiou is a cousin of her ex‑husband.
Intentionally causing serious injury
In December 2015, Ms Ioannou was living at Strathaven Drive, in Berwick. On 13 December 2015, Mr Papathanasiou visited Ms Ioannou at her home. She had not seen him for about two years as he had been living in Queensland. Ms Ioannou was aware that he had a history of poor mental health, but there had been no difficulties between them in the past. She spent most of the day with Mr Papathanasiou and drove him to his father’s house in Berwick that night.
That evening, Ms Ioannou had two guests, Zeesham Mehdi and Taniesha Brighton, sleeping at her house. They both slept in a bedroom towards the rear of the house. Ms Ioannou slept in the lounge room on her couch.
At about 7:00 a.m. the next day, on 14 December 2015, Mr Papathanasiou returned to Ms Ioannou’s house. She invited him inside and offered him a coffee. He drank the coffee on the front porch while smoking a cigarette. After he finished his cigarette, Mr Papathanasiou came back inside the house and went into the kitchen. Ms Ioannou assumed he was making another coffee.
When in the kitchen, Mr Papathanasiou armed himself with a kitchen knife, the blade of which was about 20 centimetres long. He returned to the lounge room with the knife raised in his hand and asked Ms Ioannou, “Why would you do that to me?” At first, she thought he was joking. But, as he came towards her, she realized he was serious, so she started to scream for help and jumped from one side of the couch to the other. She was cornered, however, and Mr Papathanasiou stabbed her in the face and head. She fell to the ground and Mr Papathanasiou continued to stab her. She described the blows as getting heavier and she thought she was going to die. She managed to get to her feet and ran towards the rear bedroom where her guests were sleeping. Mr Papathanasiou continued to stab her from behind as she fled towards the bedroom.
Mr Mehdi and Ms Brighton were woken by Ms Ioannou’s screams and opened the door for her. They saw her in the hallway with Mr Papathanasiou behind her with a knife in his hand. He stabbed her at least one more time before she could get into the bedroom. Ms Brighton screamed at Mr Papathanasiou to stop, and he ran out the front door.
Ms Ioannou was covered in blood and was bleeding from her multiple stab wounds. Mr Mehdi and Ms Brighton placed towels over some of her wounds until the police and ambulance arrived. She was then taken by ambulance to the Dandenong Hospital.
Aggravated burglary
After leaving Ms Ioannou’s home, Mr Papathanasiou ran to an unrelated address at 86 Earlsfield Drive, Berwick, which was about two kilometres away. Kaila Battams and Jamie Bailey shared that house. That morning, both were home in their separate bedrooms. Ms Battams heard an unfamiliar voice in the house yell out, “Hello, hello.” When she came out of her bedroom to investigate, Mr Papathanasiou ran at her from the kitchen and yelled, “I need your keys, I need your keys, I have just killed someone.” She told him that she would get her keys and walked towards the key holder at the front door. Mr Papathanasiou was agitated and Mr Bailey, having heard the yelling, came out of his bedroom.
Theft of motor car
Mr Papathanasiou came to Mr Bailey’s doorway and yelled at him, “I have just killed someone, give me your keys.” He then noticed a set of keys on Mr Bailey’s desk, and grabbed them. He went outside and jumped in a Ford sedan parked in the driveway. He could not start that car with the keys and yelled out to Ms Battams that the keys were the wrong ones. She pointed out a Toyota Corolla parked on the nature strip. Mr Bailey explained to him how to get into the car through the passenger door. Mr Papathanasiou then drove away in the Toyota Corolla.
Discovery of Toyota
Almost a week later, on 20 December 2015, Mr Papathanasiou parked the Toyota in a carport at 92 James Cook Drive, in Endeavour Hills. That address had been vacant for some time as it had been sold recently. At about 10:00 a.m., the new owners arrived to move in and noticed Mr Papathanasiou and the Toyota in the carport. After a short conversation with the new owners, Mr Papathanasiou ran from the address leaving a bag and the Toyota behind. (The Toyota was blocked in the driveway by another vehicle.)
Arrest
A short time later, Mr Papathanasiou was arrested at 2/26 Olive Street, in Eumemmering. He was conveyed to the Narre Warren Police Station to be interviewed. After his details were obtained and he was cautioned, the record of interview was suspended to allow him to be examined by a Forensic Medical Officer. Forensic Medical Officer Dr Romey Giles assessed him as being unfit to be interviewed.
Injuries to Ms Ioannou
As a result of the attack upon her, Ms Ioannou suffered at least 20 wounds to her head, face and limbs. Upon admission to the Dandenong Hospital, she underwent emergency plastic surgery. The photographs taken of her at the hospital show her in a terrible state.
The stab wounds included four separate wounds to the rear of her head. The deepest wound was associated with an underlying fracture of the outer table of the skull. No fixation of the bone was performed and the inner table of the skull was not breached. The soft tissue wounds were debrided and repaired using absorbable sutures.
On her left cheek, there was an incised wound, seven centimetres long, overlying the zygomatic arch. In line with the wound was a minimally displaced fracture through the outer table to the arch but no bony fixation was performed.
One of the stab wounds across Ms Ioannou’s face caused her nose to be almost severed and fractured her nasal bones. Her nose was surgically repaired, but, according to a forensic physician, it is likely to heal with significant structural deformity.
There were multiple incised wounds of varying thickness on Ms Ioannou’s left leg. The deepest one required debridement and repair. The remainder of the wounds did not breach the dermis and were not surgically repaired.
Ms Ioannou also suffered incised wounds to her right index finger and left middle finger which required debridement and repair.
Nature and gravity of offences
I turn now to the nature and objective gravity of the offences and the impact upon the victims.[1]
[1]See ss 5(2)(c) and (daa)-(db) of the Sentencing Act 1991 (Vic).
Intentionally causing serious injury
Intentionally causing serious injury is, by definition, a serious offence. It involves intentionally causing another person serious injury and carries a maximum penalty of 20 years’ imprisonment.[2] Serious instances of the offence can be the most serious non-fatal offences against the person, and even as serious as inchoate offences relating to murder.
[2]See s 16 of the Crimes Act 1958 (Vic).
If Mr Papathanasiou had not been afflicted by florid psychosis at the time of the offence, to which I shall come shortly, I would have regarded this as a far more grave example of intentionally causing serious injury. But, even allowing for that factor, it is still a very serious offence. Without warning or provocation, Ms Ioannou was ferociously and repeatedly stabbed in the face, neck and limbs, while in the safety of her own home, by a trusted guest. Her nose was almost severed. It is no exaggeration to say that the nature of the attack was such that Ms Ioannou easily could have suffered even more serious and lasting injuries. She could have been killed. I am also satisfied that the attack would have continued had Ms Ioannou’s other guests not saved her.
The impact of the crime on Ms Ioannou, who read her victim impact statement aloud in Court, has been profound.[3] She spoke of the various medical procedures she has endured, which included having plastic surgery and stitches on her broken nose. Her other injuries – including a fractured cheekbone, fractures to her skull and other deep cuts – were also extremely painful. After the assault, her injuries made it difficult to sleep. She now has visible scars which affect her both mentally and physically. She does not like going anywhere anymore because she thinks people are looking at her scars. For this reason, she missed Christmas in 2015 with her children as she did not want to traumatise them. The trauma of the attack has made her despise Australia and she no longer wishes to live here. The ordeal also led to significant substance abuse to numb the pain and a gambling addiction which became out of control. It is clear, from listening to and observing Ms Ioannou in Court, that she remains deeply traumatised by Mr Papathanasiou’s attack.
[3]In accordance with the discussion on the plea, I have had regard only to the admissible parts of the victim impact statement.
I should add that, from my position in Court, I did not notice any scarring to Ms Ioannou’s face. Indeed, upon reading the materials before the hearing, I expected Ms Ioannou to be very disfigured. Mr Brown advised that he too was expecting worse scarring. However, he also explained that he saw Ms Ioannou in a conference room before Court. While she was wearing heavy make-up, he observed that the scars were clearly visible. Mr Brown was content for the Court to proceed on the basis of his additional description – namely, that, even with heavy make-up, the scars were clearly visible. Mr Marsh, who appeared for Mr Papathanasiou, was content for the Court to proceed on that basis too. Accordingly, I shall do so.
As Mr Marsh pointed out, the offence was spontaneous and the weapon was obtained opportunistically. But, for the reasons I have given, overall, it was still, objectively, a very grave offence.
Aggravated burglary
Aggravated burglary can also be a very serious offence, depending on its particular form and its attendant circumstances. The potential gravity of the more serious forms of this offence is reflected in the maximum penalty of 25 years’ imprisonment,[4] the second-highest maximum penalty available under Victorian law.
[4]See s 77 of the Crimes Act 1958 (Vic).
The form of aggravated burglary committed here involved entering premises with an intention to steal and with the knowledge that a person was present (or recklessness thereto). This is usually a less serious form of the offence. More serious forms usually involve entering with an intention to assault while carrying a weapon and are usually followed by separate offending involving the infliction of serious violence.
While it must have been a distressing experience for Mr Bailey and Ms Battams to have Mr Papathanasiou entering their home unannounced, telling them he had just killed someone and demanding car keys, I regard this instance of the offence as falling towards the lower end of the spectrum of seriousness. He had no weapon and he did not appear intent on any violence.
Theft
Theft is a less serious offence than the other offences committed by Mr Papathanasiou. It involves the dishonest appropriation of another person’s property with an intention of permanently depriving the other person of the property. The offence carries a maximum penalty of ten years’ imprisonment.[5]
[5]See s 74 of the Crimes Act 1958 (Vic).
In this case, the offence involved Mr Papathanasiou stealing Mr Bailey’s Toyota by taking it from the house. The theft was aggravated by the fact that he kept the car for the next six days. It is likely that Mr Bailey was inconvenienced substantially in not having his car for that period.
Were they not associated with the grave attack on Ms Ioannou, both the aggravated burglary and the theft of motor car charges could have been dealt with comfortably in the Magistrates’ Court.[6] Each offence is also rendered substantially less serious by Mr Papathanasiou’s mental state.
Mr Papathanasiou’s culpability and degree of responsibility for the offence
[6]See ss 28 and 29, and clauses 4.4(b) and 4.7 of Schedule 2, of the Criminal Procedure Act 2009 (Vic).
Introduction
I turn now to Mr Papathanasiou’s culpability and degree of responsibility for the offences.[7]
[7]See ss 5(2)(d) of the Sentencing Act 1991 (Vic).
As part of the prosecution opening, Mr Brown also drew my attention to the opinions in the reports of psychiatrists Associate Professor Andrew Carroll and Dr Fiona Best, who, at the instance of Mr Papathanasiou’s former legal representatives and the Director respectively, examined him after the incident. Mr Brown explained that, initially, issues arose in relation to whether Mr Papathanasiou was fit to stand trial[8] and whether he might have a defence of mental impairment.[9] Reports were sought from those psychiatrists on these questions.
[8]See Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[9]See Part 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Associate Professor Carroll
At the instance of the defence, Associate Professor Carroll provided a report dated 2 May 2016.
Mr Papathanasiou declined to see Associate Professor Carroll. Nevertheless, based on the materials he examined, including repeated assessments by prison psychiatrist Dr Clare McInerney and other collateral information from community clinicians and family members, he was able to form the view that Mr Papathanasiou was, at that time, not fit to stand trial because he would be unable meaningfully to instruct his lawyer. He said:
There is evidence that his lawyer has been incorporated into his delusional belief system … Currently he declines to meet with his solicitor or with myself as the psychiatrist instructed by his defence team. … Even if he were to meet with [his lawyer], it would be likely that any instructions at this time would be strongly influenced by his active psychotic symptomatology.
Associate Professor Carroll opined that Mr Papathanasiou’s unfitness was due to a psychotic illness and that, if he were to be treated with antipsychotic medication (which, at that time, he had been refusing to take), it would be expected that, within some months, his mental state would improve and there would be a high likelihood of his becoming fit to stand trial.
However, it seems principally because of an absence of a consultation with Mr Papathanasiou, Associate Professor Carroll felt he had insufficient data to give a defensible opinion as to whether the defence of mental impairment was available.
Dr Best
At the instance of the Director, Dr Best provided a report dated 27 June 2016.
Dr Best opined that, while it might appear superficially that Mr Papathanasiou was fit to stand trial, he had not been able to demonstrate that he was able to instruct his legal practitioner. Recently, he had “sacked” his lawyer and developed a view that his legal team were trying to “sabotage” him. She said that he appears to have incorporated his legal team into his delusional system and has concerns that they are the devil. She concluded that, given this difficulty, he was not fit to stand trial at that time.
Dr Best also noted that, since 17 March 2016, Mr Papathanasiou had been engaged in treatment with Dr McInerney, who is of the opinion that “the medical and family collateral history points strongly to an enduring psychotic illness which … should now be accepted as the correct diagnosis”. Dr Best also observed that recent correspondence with Dr McInerney indicated that her opinion now is that Mr Papathanasiou has schizophrenia and that his psychotic symptoms are of ten years’ duration, but that he continues to refuse treatment for schizophrenia. Dr Best opined that Mr Papathanasiou’s illness is “characterised by persecutory and religious delusions, derogatory and command auditory hallucinations, passivity phenomena, disorganisation and thought disorder”.
Dr Best was also of the opinion that a defence of mental impairment was available to Mr Papathanasiou. She concluded that, at the time of the attack, Mr Papathanasiou was “mentally unbalanced by his mental illness in such a way that, whilst he did know the nature and quality of his conduct, he did not know that the conduct was wrong, due to bizarre and religious delusions and auditory hallucinations which made it impossible for him to reason with a moderate degree of sense and composure about whether the conduct was wrong”.[10]
[10]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Dr Zimmerman
At the plea hearing, Mr Marsh also tendered a report dated 29 August 2016 by psychiatrist Dr Nina Zimmerman.
Dr Zimmerman assessed Mr Papathanasiou as fit to stand trial.
Further, based on the history she received from Mr Papathanasiou, the psychiatric notes from the prison, reports of other psychiatrists and other collateral sources, Dr Zimmerman concluded that Mr Papathanasiou suffers from schizophrenia but that that illness was in remission and controlled by antipsychotic medication at the time of her examination.
Dr Zimmerman was also of the opinion that, at the time of the attack, Mr Papathanasiou was actively psychotic. While there was no evidence that he was unaware of the nature and quality of his actions, Dr Zimmerman was of the view that Mr Papathanasiou was not able to reason with a moderate degree of sense and composure about the wrongfulness of the conduct he was engaged in. Consequently, she too was of the view that the defence of mental impairment was available to him.
In coming to that view, Dr Zimmerman considered evidence from several sources. For example, one of his siblings had said that, in the months before the attack, Mr Papathanasiou had talked increasingly about hell and being the devil. The sibling was sufficiently concerned to ring a mental health facility on three occasions but was told to call police instead. In the week leading up to the attack, Mr Papathanasiou’s cousin rang expressing concerns about similar observations. The sibling rang the mental health facility again but was given the same response.
Mr Papathanasiou told Dr Zimmerman that he had been hearing voices and feeling paranoid since October 2015. He believed that his family were gods who were going to send him to hell. He visited his mother briefly and begged her not to kill him. The day before the attack, he visited Ms Ioannou. He spoke to her about “devil stuff”. She offered him a puff of “ice” and he had some. He said he was feeling restless and agitated. Ms Ioannou drove him to his father’s house, which was nearby. He was worried that his father was going to kill him with a baseball bat. He felt that he was dying and dropping into the next life. He wandered about for hours listening to voices and believing that satellites were following him. He returned to Ms Ioannou’s place for a coffee. He remembers going to the kitchen, seeing a man come out and hearing static in his ears. He remembers being on top of Ms Ioannou and screaming at her. He said the event had a dream-like quality, that he felt he had no control over what was happening and that it was as if he were watching a video. He said he saw the man again and believed that he was going to call the police. He also heard voices saying, “I’m going to fuck you.”
Dr Zimmerman also found Mr Papathanasiou’s thoughts at interview were well communicated and organised and that there was no evidence of any persecutory, bizarre, grandiose or religious themes. Mr Papathanasiou reported that his beliefs that he was the devil stopped about a month earlier. He also reported that he is no longer hearing any voices and has not done so for about a month.
Consent mental impairment hearing
Following receipt of Dr Zimmerman’s report, the issue as to Mr Papathanasiou’s fitness to stand trial was resolved.
The parties then agreed that the matter should resolve as what is commonly called a consent mental impairment hearing. Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of indictable offences such as those charged against Mr Papathanasiou is determined by a jury. However, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), if a person is charged with an indictable offence and, before the empanelment of a jury, the Director and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded. In this case, the Director and the defence were agreed that the psychiatric evidence established the defence of mental impairment.[11]
[11]See Part 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Had the matter proceeded on that basis, the likelihood is that the Court would have delivered a verdict of not guilty by reason of mental impairment and that, after receipt of the necessary reports and a certificate of available services, Mr Papathanasiou would have been placed on a custodial supervision order and treated at Thomas Embling Hospital, which is a secure psychiatric facility. While the nominal term of such an order would have been 20 years, it is reasonable to expect that, in a much shorter space of time, his rehabilitation would reach a sufficiently satisfactory level to cause his release into the community on extended leave and eventually on a non-custodial supervision order.[12]
[12]See Parts 4 and 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Pleas of guilty entered instead
However, following a further conference, Mr Papathanasiou instructed his lawyers that he wished to enter pleas of guilty to the charges on the indictment. Mr Marsh read aloud a letter to the Court written by Mr Papathanasiou explaining his reasoning. He said:
Your Honour, due to untreated mental illness over many years, I find myself in a very unfortunate situation where somebody has been hurt. I take responsibility for not having [sought] treatment much earlier for post-traumatic stress disorder, schizophrenia, psychosis, numerous king hit attacks, suicide attempts which left me in a coma for four days half paralysed, depression, anxiety and a disturbed and traumatic upbringing. I could never have anticipated such a sad and dangerous situation as this, as it is not in my nature or character. I take responsibility for not having sought treatment and this is why I’m pleading guilty today.
Dr Zimmerman’s viva voce evidence
Dr Zimmerman also gave viva voce evidence on the plea. Her opinion remained that Mr Papathanasiou suffers from paranoid schizophrenia, that he was psychotic at the time of the charged incidents and that the defence of mental impairment was available to him. She believes his first clear episode of psychosis occurred in 2011, but there may be earlier instances.
Recognizing that he has now pleaded guilty, Dr Zimmerman offered that Mr Papathanasiou’s psychotic state would have impaired his ability to exercise appropriate judgment. In particular, as a result of his deluded fears for his own personal safety, his disordered thoughts and chaotic feelings, it would have been impossible for him to make clear, reasoned judgments at the time of the offending.
Approach to psychiatric evidence
The parties accepted that the correct approach to the psychiatric evidence on the plea is as follows. While it is impermissible to act on that evidence to the extent that it establishes the defence of mental impairment, for to do so would be inconsistent with the pleas of guilty, it is nevertheless permissible to act on that evidence, if accepted, to the extent that it supports the conclusion that Mr Papathanasiou’s behaviour was caused by his disturbed mental state short of the defence of mental impairment. This, in turn, may impact on an assessment of his appreciation of the wrongfulness of his conduct, his ability to make calm and rational choices and his moral culpability, as well as the weight to be accorded to principles such as general deterrence, specific deterrence, denunciation, just punishment and protection of the community.[13]
Conclusions
[13]See, e.g., Lucas v The Queen [2012] VSCA 245 at [20]-[22] (per Redlich JA, Maxwell P agreeing); R v Sebalj [2006] VSCA 106 at [12]-[15] (per Vincent JA) and [18]-[21] (per Maxwell P); and R v Sandhu [2016] VSC 516 at [36].
I turn now to my conclusions.
I accept the evidence of Dr Best and Dr Zimmerman. The objective evidence of Mr Papathanasiou’s behaviour leading up to and during the attack makes it plain that he was very unwell at that time. In my view, his deluded and confused thoughts did cause him to act as he did; and such thoughts were the product of his schizophrenia. While I must not act on the basis that Mr Papathanasiou was so unwell that his departure from reality amounted to the defence of mental impairment, I am satisfied that he was so deluded that his moral culpability was reduced, not to nothingness, but to a very low level, just short of the lowest level it could be without amounting to that formal defence.
It is for this reason that what is, objectively, a very grave example of the offence of intentionally causing serious injury is much less serious than it might appear at first blush. While the offences of aggravated burglary and theft committed by Mr Papathanasiou are far less serious examples of those offences, their gravity is also reduced by the same consideration.
Other mitigating factors
I turn now to the other factors in mitigation on which Mr Papathanasiou is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Marsh on the plea.
Background
Mr Papathanasiou is the oldest of four siblings in his family. His two sisters were present in Court for the plea hearing, together with one of his cousins.
Mr Papathanasiou was born in Greece and migrated to Australia when he was aged three. His early life seems to have been marred by some domestic abuse from his father towards his mother and the children. However, Mr Papathanasiou and his father have remained very close over the years and continue to have a significant relationship.
Mr Papathanasiou’s early life involved active participation in martial arts – namely, Wing Chun and Wushu (both Chinese martial arts) – which he pursued to a high level, very much driven by his father’s encouragement.
In his early teens, Mr Papathanasiou switched to playing tennis. Such was his talent that he left school in Year 11 to attend a professional tennis academy. He travelled to Europe to participate in tennis tournaments on the professional circuit. He continued in that endeavour until his parents divorced in 2002, when he was 19.
The divorce of his parents had a traumatic effect on Mr Papathanasiou. As the eldest child, and as a son, he somehow saw himself as responsible for trying to keep things together for the family in the challenging time that immediately followed the divorce. He effectively quit his tennis career at that stage, although he also suffered an injury at around the same time which probably would have severely hampered the prospects of continuing that sporting career in any event. He moved back to Australia to live with his father and his brother, while his two sisters remained living with their mother.
Back in Australia, Mr Papathanasiou worked at his father’s furniture spray‑painting business. He also returned to school as a mature-age student to complete Year 12, in order to please his mother.
In the years that followed his parents’ divorce, there was a gradual decline in Mr Papathanasiou’s mental health. He experienced ongoing depression and anxiety and gradually drifted into drug use, beginning with cannabis and what are often referred to as “party drugs”.
Mr Papathanasiou’s drug use led to an eight‑month residential rehabilitation programme, followed by a further five-month stay in a half‑way house. While he remained free of drugs during that period, after he finished his time in the half-way house, Mr Papathanasiou suffered a dramatic decline in his mental health. He relapsed into using drugs again and attempted to commit suicide in 2009 by taking an overdose of heroin while in Sydney. He was in a coma for some time and was treated in hospital.
Upon his release from hospital, Mr Papathanasiou did not receive any follow‑up treatment and found himself again somewhat lost. He returned to Melbourne and experienced another break-down in 2011. During that period of time, he had become overwhelmed by depression, anxiety and paranoid thoughts. He was effectively homeless. He isolated himself from his family and friends and was sleeping behind rubbish bins. He was dishevelled and not taking care of himself. During this time, Mr Papathanasiou had some very limited engagement with psychiatric services but did not undergo any course of prescribed treatment.
In 2012, Mr Papathanasiou met a woman called Emma and the two of them began a relationship together. She fell pregnant and the couple moved to Queensland to live with Emma’s mother. Unfortunately, they lost the baby at about 15 weeks due to an ectopic pregnancy. The couple had used drugs together in the past and, after the loss of their baby, both relapsed into using drugs to cope with the stress.
It was during this time that Mr Papathanasiou was charged with assault with intent to steal, theft and assaulting a police officer. He was convicted and sentenced to nine months’ imprisonment but released on parole after three months. Upon his release, Mr Papathanasiou moved to Cairns to live with his uncle. He subsequently reunited with Emma and fell back into using ice. Following a positive urine test, he was found to be in breach of his parole and returned to prison for a further five months. He ultimately spent a total of about eight months in custody.
After his release from custody in August 2014, Mr Papathanasiou returned to the Gold Coast and worked as a mechanic. He left that job in October 2015 following a breakdown in the relationship with his fellow employees. It was at this time that he began experiencing severe paranoia and was hearing voices. He began living in abandoned properties in the Gold Coast area. He experienced hallucinations and delusions which had a common theme that he was the devil and that he would be punished for eternity. He also formed a deluded view that people he knew were somehow agents in that process.
Mr Papathanasiou subsequently returned to Victoria. He initially lived with his mother, but soon became convinced that she was plotting to “torment him”, so he left home and began sleeping on the streets again.
On the day of the offending, Mr Papathanasiou found himself in the general area of his father’s home. He was walking the streets of Berwick when he realized he was near Ms Ioannou’s home.
Having set out that personal history, I turn now to the other factors in mitigation.
Pleas of guilty
First, there are Mr Papathanasiou’s pleas of guilty.[14]
[14]See s 5(2)(e) of the Sentencing Act 1991 (Vic).
The pleas of guilty are significant in several ways. First, they have avoided what would have been a stressful trial and have spared the witnesses, particularly Ms Ioannou, the ordeal of reliving these events and being cross-examined about them.
Secondly, the pleas of guilty involve an acceptance by Mr Papathanasiou of legal responsibility for his actions and a willingness to facilitate the course of justice.
Thirdly, the pleas were entered despite the powerful evidence that satisfies me that the defence of mental impairment was certain to succeed. Both Dr Best and Dr Zimmerman were clear in their views that the defence of mental impairment was available. As I indicated earlier, the Director himself was prepared to have the matter proceed as a consent mental impairment hearing. Mr Brown submitted that, by pleading guilty instead of pleading not guilty by reason of mental impairment, Mr Papathanasiou has avoided the uncertainty of release that would come with the imposition of a supervision order. While that may be so, whatever the reasoning behind the course taken, it is plain that he had a certain defence of mental impairment, which, in my view, makes the pleas of guilty all the more worthy in mitigation.[15]
Remorse
[15]See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).
Secondly, I am satisfied that Mr Papathanasiou has a significant level of remorse for his offending.[16] There are four reasons for that conclusion.
[16]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
First, his pleas of guilty, in the face of a certain defence of mental impairment, are evidence of remorse. Mr Brown accepted that the pleas of guilty are indicative of remorse.
Secondly, I accept Mr Marsh’s submission that his reasons given for pleading guilty, as expressed in his letter to the Court, imply an element of remorse.
Thirdly, Mr Papathanasiou told Dr Zimmerman that he feels bad about what happened because it was traumatic for the victim and for him. He said that he feels “ashamed and embarrassed” and “unable to face people again”.
The fourth reason is the expression of remorse in the letter I received in evidence this morning from Mr Papathanasiou.
Limited criminal history
The third matter in mitigation is that Mr Papathanasiou has only a limited criminal history.
As I explained earlier, he was convicted in Queensland of assault with intent to steal, theft and assaulting a police officer, and ultimately served a total of eight months’ imprisonment.
I accept Mr Marsh’s submission that, while the offences are not trifling, they are of limited relevance to the current offending. Despite having been mentally ill for a significant period of time, Mr Papathanasiou has not demonstrated a propensity for violent offending.
Hardship of imprisonment
The fourth matter in mitigation concerns the particular hardship that imprisonment will work on Mr Papathanasiou.[17] Dr Zimmerman thinks that a custodial sentence will weigh more heavily on Mr Papathanasiou than on a person without a psychotic illness. Notwithstanding the fact that Mr Papathanasiou’s illness is currently in remission and that he is taking his prescribed antipsychotic medication, he will find the custodial environment to be stressful, and those stressors can be associated with relapse. He has found, and will continue to find, incarceration more onerous than most other prisoners because of the effects of his schizophrenia. I accept that evidence.
Good prospects of rehabilitation
[17]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
Finally, I am satisfied that Mr Papathanasiou has good prospects of rehabilitation.[18] I do not say those prospects are very good or excellent, but just good. There are three reasons that bring me to that conclusion.
[18]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
First, his pleas of guilty, remorse and limited prior convictions point toward strong prospects of rehabilitation.
Secondly, however, in my view, those prospects are heavily dependent upon his continued compliance with antipsychotic medication and abstinence from the use of illicit drugs.
In Dr Zimmerman’s view, it is imperative that Mr Papathanasiou remain on antipsychotic medication indefinitely and that, when returned to the community, his treatment be managed by a community mental health service.
Dr Zimmerman understands that, while he was resistant initially, Mr Papathanasiou is now compliant with his prescribed antipsychotic medication. While she conceded that Mr Papathanasiou had been prescribed antipsychotic medication in 2009 by a general practitioner and that he had either not taken it or had taken it for only a short period of time, she considered it significant that he has never been on treatment for a prolonged period in the past. Thus, there was no reason to assume that Mr Papathanasiou will become non-compliant in the future. She also believes that he now has insight into his illness and accepts the need to take medication. Given that he is responding well to assertive treatment and that he has not had such treatment in the past, and provided the necessary supports are in place, Dr Zimmerman is positive about Mr Papathanasiou’s prospects of maintaining stable mental health upon his release.
Thus, the second factor pointing to strong prosects of rehabilitation is that I accept that Mr Papathanasiou does have insight into the need to continue to take antipsychotic medication and that the indications are that he will continue to do so.
The third consideration concerns illicit drug use. In Dr Zimmerman’s view, it is important that Mr Papathanasiou remain free of illicit drugs, as their use can be very destabilising to mental health and can exacerbate psychotic symptoms. He has had problems with drug use in the past and had taken drugs leading up to the attack on Ms Ioannou. Dr Zimmerman’s view is that Mr Papathanasiou should also receive drug counselling, both in and out of custody, as I understood her.
Had Mr Papathanasiou not had a history of drug use or had he had a better record of recovering after treatment, I would have been more sanguine about his prospects of rehabilitation. That said, I am heartened by the points made by Mr Papathanasiou in his letter to the Court this morning. In particular, his plans for psychological and other drug-related treatment in custody, and the support he has from his family, give me some confidence that he is currently thinking in a positive manner about what is necessary for rehabilitation. That, in my view, augers well for the future.
Thus, overall, for the reasons I have given, I consider his prospects of rehabilitation to be good.
Sentencing purposes
I turn now to the purposes of sentencing.[19]
Denunciation and just punishment
[19]See s 5(1) of the Sentencing Act 1991 (Vic).
Given Mr Papathanasiou’s reduced moral culpability on account of the effects of his mental illness at the time of the offences, there is, in my view, necessarily, a corresponding reduction in the need for the sentence to reflect curial denunciation and just punishment.
General deterrence
Similarly, general deterrence can be of only minimal weight, as one so ill is not a suitable vehicle to be an example to others.
Specific deterrence
It is also difficult to see how specific deterrence could attract any more than minimal weight. Mr Papathanasiou’s pleas of guilty, remorse, lack of prior convictions and good prospects of rehabilitation also suggest that specific deterrence should attract less weight than otherwise in any event.
Protection of the community
On the other hand, there is a need to show caution in protecting the community from one who has demonstrated he can act with such extreme violence when unwell. That said, I also accept the evidence that it appears that the antipsychotic medication he is taking is likely to control his illness in the future. Further, I also accept that he has some insight into his illness and an understanding of the need to take such medication, probably for the rest of his life. Again, that Mr Papathanasiou understands that is confirmed by the remarks he makes in his letter to me this morning.
Rehabilitation and protection of the community
Finally, I accept that rehabilitation is an important sentencing purpose in Mr Papathanasiou’s case, particularly given his pleas of guilty, remorse, limited criminal history and good prospects of rehabilitation.
The sentence to be imposed requires that he be released sooner or later. The community will be better served and protected if, when he is released, his chances of reform have been maximized. Such chances are more likely to be improved if he is not crushed by an inordinately long prison sentence but rather is returned to the community, in which his mental health can be treated more effectively, at the earliest opportunity consistent with the other purposes of sentencing.
Current sentencing practices
I turn now to current sentencing practices, to which I must have regard.[20]
[20]See s 5(2)(b) of the Sentencing Act 1991 (Vic).
In order to determine such practices, I have considered such sentencing statistics that exist for those offences.[21] Those statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
[21]See Sentencing Advisory Council, Sentencing Snapshot (No 187): Sentencing Trends for Causing Serious Injury Intentionally in the Higher Courts, 2010-11 to 2014-15, June 2016; Sentencing Advisory Council, Sentencing Snapshot (No 184): Sentencing Trends for Aggravated Burglary in the Higher Courts, 2010-11 to 2014-15, June 2016; and Sentencing Advisory Council, Sentencing Snapshot (No 187): Sentencing Trends for Theft in the Higher Courts, 2009-10 to 2013-14, May 2015.
Also, I have considered several other sentences imposed by this Court, the County Court and the Court of Appeal for intentionally causing serious injury, aggravated burglary and theft in recent years.
While no two cases are ever truly alike, I have not found any case quite like this one. However, as I indicated earlier, if Mr Papathanasiou had not been afflicted by such serious mental illness at the time of his offending but had just callously stabbed Ms Ioannou, burgled the Berwick home and stolen Mr Bailey’s car for no particular reason, and had he not pleaded guilty, in my view, current sentencing practices are such that those offences collectively would be sufficiently serious to warrant a total effective sentence in the order of 13 to 14 years’ imprisonment.
But the fact that Mr Papathanasiou was so mentally disturbed at the time of the offending, and the fact that he pleaded guilty, together with the other mitigating factors, make the appropriate penalty very much less, despite the objective gravity of his behaviour and the terrible harm it has caused.[22]
[22]An illustration of the powerful mitigating effect on sentence that can be had by evidence of serious psychosis operating on a person’s thoughts and actions at the time of offending is to be found in R v Sebalj [2006] VSCA 106, where, on appeal, Maxwell P and Vincent JA imposed a sentence of 12 years’ imprisonment, with a non-parole period of nine years, on a count of murder. That murder conviction was sustained following a trial at which the defence of mental impairment was not left only because, the trial judge ruled, Mr Sebalj’s psychosis at the time of the killing was drug-induced rather than the product of schizophrenia. Had Mr Sebalj’s offence not been precipitated by psychosis, given current sentencing practices, it would be reasonable to have expected a much heavier sentence – perhaps one closer to 20 years’ imprisonment. See also R v Sandhu [2016] VSC 516.
Sentence
I turn now to sentence.
Please stand, Mr Papathanasiou.
Balancing all factors as best I can, I sentence Mr Papathanasiou as follows.
On Charge 1, intentionally causing serious injury to Ms Ioannou, Mr Papathanasiou is convicted and sentenced to seven years’ imprisonment.
On Charge 2, aggravated burglary at Berwick, Mr Papathanasiou is convicted and sentenced to 12 months’ imprisonment.
On Charge 3, theft of Mr Bailey’s car, Mr Papathanasiou is convicted and sentenced to six months’ imprisonment.
Having regard to the separate criminality involved in the three offences but also the compressing effect of totality, I direct that four months of the sentence for the offence in Charge 2 and two months of the sentence for the offence in Charge 3 be served cumulatively upon each other and upon the sentence for the offence in Charge 1.
The total effective sentence is therefore seven years and six months’ imprisonment.
I fix a non-parole period of four years.
The non-parole period is relatively short, both in absolute terms and as a proportion of the total effective sentence. All factors, both mitigating and aggravating, that have affected the individual sentences and the total effective sentence have also impacted on my selection of the non-parole period. In fixing this particular non-parole period, I intend to encourage Mr Papathanasiou to work towards early release by complying with his antipsychotic medication and by working towards ridding himself of drug use, and to ensure that, if he is released on parole, he is supervised for a substantial period of time. In that way, I intend to ensure that, upon his release, the community is protected through rehabilitation and supervision. Whether Mr Papathanasiou is suitable for release on parole, whether after four years, some other period or at all, will be a matter for the Parole Board.
Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 349 days (including today) be reckoned as served under this sentence.
I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Papathanasiou’s pleas of guilty, I would have imposed a total effective sentence in the order of ten years and six months’ imprisonment with a non-parole period of seven years.
Pursuant to s 89(4) of the Sentencing Act, in consequence of his conviction of the offence of theft of a motor car in Charge 3, Mr Papathanasiou’s driver licence is suspended for six months.
Mr Brown also applied for a disposal order concerning various items seized. Mr Marsh did not oppose the making of that order. In those circumstances, I shall make the order sought.