R v Pyliotis
[2019] VSC 231
•11 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0085
| THE QUEEN |
| v |
| KATIA PYLIOTIS |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12–15, 19–23, 26–30 November 2018, 3–6, 10–14 and 17 December 2018; 28 March 2019 (Plea) |
DATE OF SENTENCE: | 11 April 2019 |
CASE MAY BE CITED AS: | R v Pyliotis |
MEDIUM NEUTRAL CITATION: | [2019] VSC 231 |
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CRIMINAL LAW – Sentence – Murder – Victim attacked in home with various objects – Suffered numerous head injuries – DNA evidence – Accused diagnosed with Post-Traumatic-Stress Disorder and Major Depressive Disorder – Good prospects of rehabilitation - Sentenced to 19 years’ imprisonment, with a non-parole period of 15 years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Doyle with Ms J Warren | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Edney with Ms M O’Brien | Stary Norton Halphen |
HIS HONOUR:
Katia Pyliotis, on 17 December 2018, after a trial lasting approximately 25 days, you were convicted by a jury of the murder of Eliah Abdelmessih at his home in Kew on 18 September 2005.
Shortly after the death of Mr Abdulmessih, as a result of forensic investigation, DNA of an unidentified female was found at the crime scene. After the death, you moved to South Australia. In 2016, you were involved in a relatively minor criminal matter which lead to your DNA being taken and your profile being placed on the national database. In May 2016, that profile was matched to the DNA which had been extracted from the biological samples found in Mr Abdulmessih’s home.
As a result, on 16 May 2016, you were arrested in South Australia at the place where you were working as a volunteer. A record of interview was conducted in which it was later conceded that you told a number of lies which formed an important part of the case against you at trial.
You continue to deny any criminal involvement in the death of Mr Abdulmessih and it follows, although you have expressed regret about his death, you are not remorseful and equally, you have no insight into your offending. Those matters, if they had been positively in your favour, would have been in mitigation. They do not aggravate your offending, but I will have to consider them in relation to your prospects of rehabilitation.
When you were in custody, you spoke to your mother and other members of your family on the telephone. In a conversation with your mother, you appeared to have accepted that you were at the crime scene, intimating that you found Mr Abdulmessih when he was already dead. Nothing that you have said in those conversations could explain the finding of your DNA in various places in the house, and although you made reference to another person who is now dead being present, nothing further came of that.
It follows that you accept that you were present in the house at some time on the day of Mr Abdulmessih’s death. It is both in the exercise of your right to silence and your choice, that you have not put forward any further explanation of your presence, innocent or otherwise. Again, they are not matters which are directly relevant to sentence, but indicate why I have, for the purpose of sentence, to make findings consistent with the jury verdict about the death of Mr Abdulmessih.
Mr Abdulmessih’s body was found in the entry foyer of his house near the front door. His head was face down on the floor, his legs were partly in the lounge room. He was partly dressed and his clothing was bloodstained and a bloodstained pair of track suit pants were found near Mr Abdulmessih’s head. Mr Abdulmessih’s head, with his mouth and nose submerged, was in a red plastic bowl filled with bloodstained fluid. There were obvious injuries to his head.
Numerous bloodstained items were on the floor near the body, including a broken statue of the Virgin Mary and a tin of mangoes. Near Mr Abdulmessih’s legs, the investigators found a black Thinsulate left glove with damage in the form of cut and/or tear to the left index finger.
In another part of the house, near the entrance to the shower room, a broken, bloodstained wine bottle was found. There were bloodstains on empty cardboard toilet rolls found in the bathroom, on the tiles above the hand basin, on the cold tap in the laundry and on the cellophane around a bunch of flowers found in the laundry trough. In the sunroom was a plastic bag containing a number of bloodstained items such as towels, medical dressings and toilet paper.
There was other bloodstaining around the house, including blood spatter evidence from which Steven Fowler, an expert in the interpretation of blood spatter evidence concluded that most of the blood distributed in the house had occurred in the front foyer area and that the distribution might have been caused by the use of a number of items, including the statue and the mango tin and some tools that were present.
Your DNA was found inside and outside the black Thinsulate brand glove, in the confirmed bloodstaining near the foot of the statue of the Virgin Mary, on one of the toilet rolls found in the bathroom, on the swab taken of the blood above the vanity in the bathroom, on the swab of blood on the cold tap in the laundry, and on the handle of the plastic bag containing the bloodstained towels in the sunroom. In a number of these areas, including on the statue of the Virgin Mary and on the black Thinsulate glove, the blood of Mr Abdulmessih was also found.
When an autopsy was conducted on the body of Mr Abdulmessih, he was found to have suffered numerous injuries. The major ones of these comprised widespread lacerations, bruising and abrasions to the head, principally over the front of the face and on the right side, the right side of the head and the top and back of the head. There was extensive laceration with degloving (that is, separation) of the skin of the scalp from the surface of the skull over the right side of the back of the head. No fractures of the skull were seen in association with these severe scalp lacerations. As well as the injuries to the face and head, there were bruises and abrasions to other parts of the body, including the right arm and hand and both legs. The cause of death of Mr Abdulmessih was determined to be a head injury in a man with immersion of his head and upper airways. Those matters in relation to the description of the DNA are taken from the prosecution opening for the trial and the autopsy findings are taken from the prosecution opening for the plea.
The crime scene was complex, because Mr Abdulmessih’s house was kept in a chaotic state. I am prepared to conclude that although there was a frenzied attack on Mr Abdulmessih which ranged over a number of parts of the house, the attack was not pre-meditated, and it is likely to have been triggered by some event, the nature of which cannot be established and about which, in the absence of evidence, I could not attach any blame to Mr Abdulmessih.
You did mention in one of the calls from prison, as I’ve already noted, that another person had been present, but I am unable to make any findings about that.
I proceed on the basis, consistent with the jury verdict, that you were the person who attacked Mr Abdulmessih and the person who inflicted the injuries on him and caused his death. That attack in his own home was both brutal and sustained. I am unable to make a finding about how it was that Mr Abdulmessih’s head was left as it was, but I do not regard that as a matter of aggravation because it is possible that it was a futile attempt to render assistance.
Some of the matters, such as leaving the scene and failing to get help were argued in aggravation. I find that those matters were bound up in your conviction and I will not use them in aggravation of your sentence.
The trial was conducted on your behalf, on the basis that the murder might have been committed by Susan Reddie because she had confessed to it and her so-called alibi was inadequate. Susan Reddie is now deceased. The case in which she was the alternative murderer was put solely on the material which had emerged at the time and which ultimately, was rejected by the Homicide Squad. One suspects that rejection was mostly on the basis of the DNA evidence and an assessment of the capability of Ms Reddie to have committed the crime. That analysis did not give rise to a reasonable doubt in the minds of the jury. It was always going to be a very difficult task.
This trial was the fourth trial in this matter. There were two short trials and one trial which had run to the closing address of defence counsel. All those trials were discontinued. You had nothing to do with the discontinuance of any of those trials.
It took another year before this trial came on. Apart from a month when you were on bail, you have been in custody. It means that by the time of this sentence, you will have been in custody for almost three years, and you were in custody for two and a half years before you knew your fate. That is an unusually long time and I have taken that, together with the uncompleted trials, into account in your favour.
It also follows, as a matter of logic, that you have had the responsibility of taking the life of another human being, hanging over your head since 2005, and although you may have come to believe that you had avoided the most dire consequences, the fact of what you did remained.
Your life has been a somewhat difficult, and a somewhat tortured one. You are now 37 years of age. You were 23 at the time of the offence. I observed on the plea that, on the evidence, it is likely that you were an unsophisticated and unworldly 23-year-old. In that sense, I regard you as a youthful offender.
You are the youngest of four daughters and you regard your childhood as having been happy. Your family life was stable and unremarkable and your health has been good, apart from a dislocated shoulder which has continued to trouble you.
You progressed through school to Year 12. There appears to have been at least some aspects of your family life where the aspirations of other members of your family were high, and you appear to have not done as well, academically, as your older sisters. That led you to conceal, for a number of years, what your true VCE score was. You had in fact received a VCE score somewhat lower than that which you told the family about.
After leaving school, you obtained a Certificate III in Business Management and Administration and a Certificate III in Hospitality during which you worked at a delicatessen, a restaurant and the David Jones Food Court involved in food preparation.
In 2005, you were working at McDonalds and that is where you met Mr Abdulmessih who attended the Kew McDonalds frequently and was well known to members of the staff, including you. His behaviour was unusual, and to a degree, over-friendly, but there is no evidence of any dealing he had with you, which was out of the ordinary.
You moved to Adelaide in 2006, whether that had anything to do with these events is not clear. It seems that you regarded yourself as under pressure at home, relating in part to the high-achievements of your older sisters and perhaps your duplicity about your VCE results.
In South Australia, you trained a youth worker and worked for various state agencies. In 2011, whilst working at a residential care home, you were the victim of a serious home invasion and were stabbed several times with a knife in your left arm. There were also attempts by those offenders to set fire to the house. That event left you suffering from Post-Traumatic Stress Disorder (‘PTSD’) and that led to difficulties in your work.
In 2012, you were the victim of a sexual assault but found yourself unable to follow through with the full legal process, and the case did not proceed.
As a result of those two matters in particular, you did not work very much after the incident in 2011. It is to your credit that you did do volunteer work.
You were arrested in 2016.
You have been involved in several short term relationships. On your plea I received a report dated 9 March 2019 and a follow-up letter dated 20 March 2019, from Mr Patrick Newton, a Clinical and Forensic Psychologist, and some of the matters I have already mentioned, are drawn from that report.
You have been diagnosed as suffering from a ‘Major Depressive Disorder, Severe, Without Psychotic Features’. You appear to have first expressed depressive mood disturbance in about 2009. At that time, you were overweight and underwent gastric band surgery. You did lose a significant amount of weight and your self-esteem improved. You have had complications from that surgery which have not been finally resolved and you are still awaiting surgery.
After the serious home invasion in 2011, you attempted suicide and were an inpatient in a psychiatric hospital as a result. Your general condition was aggravated by the sexual assault in 2012, and you have been on anti-depressant mood stability medication prescribed for you over the years.
It follows that you are, to a large degree, an atypical person to be in prison. You have been assaulted several times. You are isolated and report that you have been targeted because you are different.
You assert your innocence and it follows that you found the jury verdict almost overwhelming, and although you had, prior to the trial, worked to cope with your circumstances in custody, you now find your position very difficult.
I have chosen not to read out the portion in these sentencing remarks contained in the recent report which sets out your more recent psychiatric difficulties. They will be included in my published version.
You recently, in March 2019, made a further attempt at suicide and were placed on suicide watch in the mental health unit for several weeks. Mr Newton, under the heading, ‘Mental Status Assessment Results — Depression’ said:
Ms Pyliotis presented as a severely withdrawn and depressed individual. She said that she is having considerable difficulty coming to terms with the implications of the jury’s verdict and that she remains in a state of shock and disbelief. Ms Pyliotis expressed a profound sense of unhappiness. She said that she finds her circumstances close to intolerable and that she feels hopeless at the prospect of the lengthy gaol term which she expects she will soon receive. Ms Pyliotis noted that she continues to be beset by intrusive suicidal thoughts. She told me that prior to the verdict she had been able to ward these off with the hope of a positive outcome, but that since the verdict such attempts as self-soothing have fallen flat and have had little impact upon her mood or thoughts more generally.
At a deeper level, Ms Pyliotis’ self-esteem is poor. She repeatedly referred to her ‘stupid decisions’, her ‘poor choices’, her unworthiness for ‘anything better than [she has]’ and her sense that she had made no positive contribution to her family, the community or the planet more broadly. Ms Pyliotis lamented that her life appears to have been ‘a waste of time’ and that with the prospect of an extended gaol term there would now be no opportunities for her to contribute to society or others in any meaningful sense. The pervasive sense of futility and meaninglessness that fills her days intensifies Ms Pyliotis’ depression.
Ms Pyliotis also reported significant physical symptoms related to depression. These include chronic sleep disturbance, poor appetite, lowered energy and a generalised sense of malaise. Finally, she reported difficulty concentrating and making decisions, together with a sense that her thoughts are so dominated by her preoccupations and worries that it is impossible for her to think clearly or settle down sufficiently to solve the problems which she feels are currently threatening to overwhelm her.
As noted above, Ms Pyliotis has been provided with ongoing mental-health care during her time in prison. She has been domiciled in a specific mental-health unit, has been receiving appropriate medication and has had access to psychosocial intervention with a psychiatric nurse and psychologist from time to time. Despite this Ms Pyliotis has continued to experience profound depressive symptoms. Indeed, these reached the proportions that she made a genuine suicide attempt approximately two days prior to my second consultation. She was still on ‘suicide watch’ when I saw her for the second time.
Based on my examination of her, confirmed by a review of the records you have provided, I formed the view that Ms Pyliotis would meet criteria for a Major Depressive Disorder, Severe, Without Psychotic Features.
Ms Pyliotis’ depression exists on a background of repeated traumatisation. While she is not currently suffering active symptoms of PTSD, it is considered likely that her history of PTSD will continue to render her an emotionally vulnerable woman. That is, she is likely to experience relatively intense responses to any exposure to violence or physical assault. Indeed, even quotidian stressors would be apt to evoke a relatively intense anxiety response on Ms Pyliotis’ part. Such factors are likely to cause her an increased level of distress and to complicate the treatment of her depression.
Ms Pyliotis’ depression is clearly sufficiently intense to require ongoing mental-health care. This should include maintenance of appropriate measures to ensure that she is protected from impulsive acts of self-harm. It will be particularly important for her to have access to such care (and to be closely monitored) in the period surrounding her sentencing hearing.[1]
[1]Report of Patrick Newton, Clinical and Forensic Psychologist, dated 9 March 2019, [25]–[31].
When Mr Newton was dealing with the effect of the assaults and bullying you have suffered in custody, he said;
Ms Pyliotis has found these assaults distressing. They have ‘re-kindled’ the anxiety from the trauma she suffered and have intensified the severity of her depressive symptoms. The assaults have also led to her to conclude (perhaps not unreasonably) that she is not safe within the prison and this had added to her overall level of anxiety. Finally, by undermining her trust in other prisoners, the assaults have added to Ms Pyliotis’ social withdrawal and isolation in the prison.[2]
[2]Ibid [39].
As I observed on the plea, I am not sure that he is right. The way I view the matter is this; you have been mistreated in custody, I will take that into account in sentencing.
I have seen two affidavits from Brendan Money, the Assistant Commissioner, Sentence Management Division of Corrections Victoria. It seems to me that after being assaulted, you consulted your family and decided not to go into protection, but chose to make your way in the general prison population and you did pretty well for yourself in difficult circumstances which showed resilience and strength of character. I regard that very positively.
It is your conviction which is the overwhelming event for you, and is the cause of the your present condition.
I accept the diagnosis of depression and I am satisfied that the serving of your sentence will be more burdensome for you than for other prisoners not suffering from the same condition and I have taken it into account.
I am not able to say just how imprisonment will affect your condition, and in particular, whether it will negatively affect you, but it is hoped that you will receive treatment and be given some assistance whilst in custody.
Whilst in custody, you have completed a number of tasks for which you have received certificates of completion. These include:
(a) Certificate II in Kitchen Operations in 2018;
(b) Certificate I in Construction;
(c) Certificate II in Kitchen Operations in 2016;
(d) Certificate I in Access to Vocational Pathways;
(e) Certificate I in General Education for Adults;
(f) Certificate II in Horticulture;
(g) Certificate I in Information, Digital Media and Technology;
(h) Certificate II in Cleaning Operations; and
(i) Certificate I in General Education for Adults (Introductory).
On the plea, I received six character references from:
(a) Kate Boyce,
(b) Janet Cregan-Wood;
(c) David Hamilton;
(d) Amira Pyliotis;
(e) Aryel Pyliotis; and
(f) Hanna Pyliotis.
You have the unqualified support of your friends and family who, it seems clear to me, will continue to support you through your sentence.
In relation to that, it is a feature important to you and important to your sentencing, that you have no prior convictions and the one later matter which has been alleged, is of no consequences to this sentence.
It has been said of you by your friends and family, that there has been no incident previously in your life showing any signs of violence or any tendency towards it which I will take into account, but in one sense, it makes your offending more puzzling.
I have already indicated that there are some reservations about your prospects of rehabilitation because of your lack of insight and remorse, but you are reasonably intelligent and you have shown signs of resilience and determination. You are still reasonably young and you were only 23 at the time of these offendings. I regard your overall prospects of rehabilitation as good. That is, you do have a future.
On the plea, I received a Victim Impact Statement from Susan Ayad, Mr Abdulmessih’s goddaughter. It shows, as we are often shown in these cases, that although Mr Abdulmessih led a fairly solitary life, it did not mean that there were not people in the community who cared about him and had regular contact with him. It shows again the wide range of suffering which occurs as a result of offences of this kind and the way in which they are more excruciating when a number of years pass before they are resolved.
I am obliged to have regard to just punishment, denunciation and general and specific deterrence and I have done so. I am obliged to have regard to current sentencing practices which are to be moderated to a degree because of the sentencing practices at the time these events occurred, and the fact that you were 23 at the time of the offending.
I regard this is a reasonably serious example of the crime of murder, but also make it clear that there are significant matters operating in mitigation. I am obliged to balance the competing principles and have done my best to do so.
Katia Pyliotis, for the murder of Eliah Abdulmessih, you are sentenced to be imprisoned for 19 years and I fix a non-parole period of 15 years and six months before you will be eligible for parole.
I declare that you have served 1032 days, excluding today, by way of pre-sentence detention. I direct that the fact of this declaration was made and its details be entered in the records of the court.
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