Crown v Accused

1. Danielle Birchall, a jury found you guilty of the murder of your de facto father‑in‑law, Konstantinos Kritikos, who was 87 at the time of his death.[1] It is not in dispute that, on the afternoon of 11 November 2020, you attended Kon's home at 224 Reynard Street, Coburg. He was alone, as his wife Effie was in hospital at the time, recovering from a fall. The jury, however, rejected your version of events that you simply had a brief conversation with him and left. The jury's verdict means that they were satisfied that whilst you were at Kon's home that afternoon, you savagely assaulted him with murderous intention. Kon died in hospital on 24 November 2020. You were charged with his murder and remanded in custody on 9 March 2021. You maintain your innocence.
2. After that brief overview, it is necessary to backtrack.
3. At the time of the killing, you were in a long-term relationship with George Kritikos, Kon's son. He is the father of your sons Jesse (now aged 18) and Shannon (now aged 14). You and George were both longstanding heroin addicts. On the day of the killing, both you and George used heroin in the morning and in the evening. Not only did you need money for heroin and general living expenses, you also needed money to complete the purchase of a car which you were supposed to pick up from the vendor on 12 November 2020. You knew that Kon kept substantial amounts of cash at his home in a glory box in his bedroom.
4. At approximately 2.42pm, you left your home in McBurnie Drive, Kurunjang, telling George that you were going to see your horses which were then agisted at a property in Toolern Vale. You did not go to see the horses. Instead you drove to Kon's house, arriving there at approximately 3.35pm.
5. At around 4.30pm, Kon's neighbours, Jonathon Evans and Emily Thomson, who lived at 226 Reynard Street, heard thudding and groaning noises coming from Kon's house. They went round to Kon's back door to investigate. They called out but there was no response. They could not see anybody through the glass back door. They went round to the front of the house. Jonathon Evans went down the side path to the front door. He could hear someone groaning. He called out 'Is everything OK?' After about 10 to 20 seconds, he heard you respond 'Everything is OK, it was just George, George was upset'.
6. Jonathon Evans and Emily Thomson went back to their house. About 15 minutes later, Jonathon Evans was out in his backyard and had a conversation with you over the fence. He could hear you but he could not see you. You asked him whether Emily had received a text message that you had sent her earlier about Effie.
7. You left Kon's at approximately 5.12pm, arriving back at McBurnie Drive, Kurunjang at approximately 6.42pm. You were wearing different clothing and your hair was wet when you returned home.
8. You and George went out later in the evening, meeting up with your drug supplier at the Parkview Hotel in Fitzroy. You went back to his place in Kingsbury. You left there at approximately 10.30pm and on the way home you suggested to George to drive via Kon's place since he was on his own. Kon usually left his bedroom light on at night because of his poor eyesight. As you were driving past Kon's place, you remarked that the house was in total darkness. George stopped the car and got out. He thought he could hear his father calling out his name. The two of you hurried inside finding Kon prostrate on the hallway floor, groaning. There was blood everywhere - on Kon, on the floor, the walls and the ceiling. Kon's face was horribly disfigured. You called 000. George asked his father who did it and he claims that his father said in Greek in your presence 'Afti Afti Afti' meaning 'She did it, She did it, She did it'.[2] Police and paramedics attended. They ushered the two of you out of the house.
9. Later in the evening, the two of you were arrested. Your footprints were taken. You indicated during your police interview that you had not removed your shoes when you attended the house during the afternoon or night, but your bloodied footprints were later detected at the crime scene. You also claimed that when you attended the house in the afternoon, you had stood just inside the back glass door talking to Kon. If that had been the case, Jonathon Evans and Emily Thomson would have seen you when they came around to Kon's during the afternoon to check that he was OK and peered through the back glass door.
10. I have already mentioned that on 11 November 2020, you returned home to Kurunjang at approximately 6.42pm in different clothing and with wet hair; crime scene analysists found evidence in the bathroom of Kon's house, consistent with someone washing off blood.
11. As mentioned, Kon died in hospital on 24 November 2020.
12. The pathologist Dr Burke who conducted the autopsy identified about 30 lacerations on Kon, including numerous lacerations to his head and scalp on multiple planes. He opined that an implement of some kind (such as a garden mattock) had been used to inflict many of the injuries. Kon had also suffered facial fractures, ruptured globes, and loss of teeth (two of which were recovered from Kon's bowel).

1. Victim impact statements were made by Kon's son George, his nephew Pando Novachev and by the neighbours Jonathon Evans and Emily Thomson.
2. Pouring salt into George's wounds, I note that you ran the trial on the basis that George was indirectly responsible for Kon's death. It was your case that George had organised with his drug dealer for someone to do a run-through of Kon's house and steal money from his glory box and that it was that person who murdered Kon. It was put to George during cross-examination that he had killed his own father by proxy.[3] In his victim impact statement, George states that he might as well be in jail because his dad was his only friend. Panda Novachev writes that 'we are devastated by the brutality of [Uncle Costa's] death and the fact that someone so kind and fragile had his life stolen so senselessly in his home, his safe haven'. Jonathon Evans and Emily Thomson, manifestly caring neighbours, write that their 'faith in [their] fellow man has been broken at the knowledge that there is someone who could perpetrate a crime of such a magnitude against someone as vulnerable as Kon'. They have been traumatised by what happened to Kon and by having to give evidence about the matter on several occasions.

1. Before I turn to an assessment of the objective seriousness of your offence, I should note that at your plea hearing there were a number of facts in dispute. I am not satisfied that you went to Kon's that afternoon to steal from him whilst he was sleeping - as alleged by the prosecution - because you arrived around 3.35pm when you knew he was likely to be awake: Kon normally went to bed at 4pm. Nor am I satisfied that you knew Kon was still alive when you left his house that afternoon. Given his injuries, it is reasonably possible that he passed out before you left, leading you to think that he was dead. If you believed that he was still alive, or may have still been alive, it is unlikely that you would have encouraged George to drive home via Kon's and drawn George's attention to the fact that all the lights were off at Kon's, causing him to stop and investigate.

1. Whilst it was not alleged that you attended Kon's home intending to assault him, it was not disputed that yours was an upper range example of the offence of murder. Your victim was your de facto father-in-law. As you well knew, he was a frail elderly man and you viciously attacked him in his own home with an instrument. You subjected him to many, many blows. His was an agonising death.

1. I turn then to your personal history.
2. You were born on 6 April 1975, making you 45 at the time of the offence and almost 50 now. You grew up in Tasmania.
3. Your parents[4] had three daughters and two sons. You are the middle child. You have no contact with your family save for one older sister.
4. Your education only went as far as Year 8 and your work history is sparse. Your last paid employment preceded the birth of your son Shannon.

1. Your father was prosecuted for sexual assaults against you and your sisters when you were children. He was convicted, but I was informed the convictions were overturned on appeal on a technicality.
2. Protective services were involved with your family and I was provided with extensive materials from their files.
3. I am satisfied on the balance of probabilities that as a child you were subjected to repeated physical and sexual abuse by your father, culminating in you being removed from your parent's care and being made a ward of state in Tasmania at the age of 11. As a ward of state, you had multiple foster home placements.
4. Your abused and deprived childhood has had far-reaching consequences for your adult life, including longstanding drug abuse (mainly amphetamines and heroin), numerous convictions for dishonesty and deception offences, and multiple intimate relationships which were marred by emotional and/or physical and sexual abuse.
5. You have five children from two of those relationships. Your oldest child Brandon - with whom you are close and who gave evidence during the trial - now looks after the two sons you had with George Kritikos.
6. Clinical psychologist Carla Lechner, who provided two reports on you, has diagnosed you with Complex Post Traumatic Stress Disorder, Borderline Personality Disorder, Major Depressive Disorder and Opioid Use Disorder (currently in remission in custody).
7. Ms Lechner writes:

Ms. Birchall's educational/vocational, social and emotional development was severely undermined by her experience of abuse, such that she has never held long-term employment, she has no friendship network, her intimate relationships were psychologically and/or physically abusive and she has had no real sense of self or belonging. She developed a heroin addiction that assisted her in 'avoiding' traumatic memories but that further adversely affected her ability to manage associated emotions in an adaptive manner.

8. A neuropsychologist Dr Brewer - who also provided a report on you - diagnosed you with a mild functional intellectual disability, reflective of 'the entrenched blanketing impact of depressive psychological distress including hopelessness, despair and learned helplessness'.
9. In Bugmy v R,[5] the High Court said this, relevantly, about sentencing an adult whose childhood was marred by extreme abuse and deprivation:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[6] > > ... > > The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. > > Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[7]

1. As mentioned, you have multiple prior convictions, mainly for dishonesty and deception offences. Those convictions were accumulated between 1998 and 2019 in over 20 Magistrates' Court appearances. You have received multiple prison sentences over the years, the longest being a total effective sentence of 18 months' imprisonment with a non-parole period of 8 months, which was imposed in 2006. Notably, you have no prior convictions for violence.

1. I am guarded about your prospects of rehabilitation. There is no evidence of remorse. You continue to deny responsibility for the murder. Your mental health conditions are entrenched. Brewer assesses you as a moderate risk of re-offending. You have a long history of drug abuse.

1. Let me now summarise what I consider are the circumstances which should mitigate your sentence.
2. First, the profound abuse and deprivation you experienced as a child.[8]
3. Second, the harsher prison conditions that existed during your time on remand as a result of COVID-19 lockdowns and restrictions.[9]
4. Third, the likelihood that because of your mental impairments, you will find prison harder than prisoners who are not so afflicted.[10]
5. Fourth, the delay in the finalisation of the criminal proceedings against you,[11] occasioned by George Kritikos informing the jury at your first trial in July and August 2023 that you had previously been in jail. The jury had to be discharged through no fault of your own and the retrial could not take place until October and November 2024.

1. Your counsel referred me to a number of comparable sentencing cases, namely the cases of Munn,[12] Bednar,[13] Tan,[14] and Anderson.[15] They are each standard sentence cases, where there was a finding of guilt of murder after a trial and where the offending involved the fatal assault of a vulnerable victim with a weapon.
2. The head sentences for murder in those cases ranged from 25 to 28 years' imprisonment and the non-parole periods ranged from 20 to 23 years.

1. Please stand.
2. The maximum penalty for murder is life imprisonment and the standard sentence is 25 years.
3. The sentence I will impose on you is higher than the standard sentence for murder but having weighed the aggravating and mitigating circumstances in your case I have formed the conclusion that this is appropriate.
4. Accordingly, for the offence of murder, I sentence you to 27 years' imprisonment with a non-parole period of 20 years.
5. I declare that you have served 1362 days by way of pre-sentence detention.

[1] Kon's date of birth was 25 June 1933.

[2] Strictly speaking, the Greek word 'Afti' means 'She' in English.

[4] According to Ms Lechner's first report dated 10 August 2023, your father died in 2022. According to Dr Brewer's report dated 23 May 2024, your father is alive but your mother is deceased.

[5] Bugmy v R [2013] HCA 37; (2013) 249 CLR 571.

[8] Bugmy v R [2013] HCA 37; (2013) 249 CLR 571.

[9] Surtees v R [2023] VSCA 42 [10].

[10] The application of Principle 5 in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins') was conceded by the prosecution. Your counsel disavowed Principles 4 and 6 in his oral submissions (see plea hearing Transcript at 26 and 32).

[11] Rodriguez v DPP (Cth) [2013] VSCA 216; (2013) 40 VR 436, [36].

[12] DPP v Munn [2020] VSC 251.

[13] Thomas Bednar v The King [2024] VSCA 180.

[14] DPP v Tan [2023] VSC 416.

[15] DPP v Anderson [2024] VSC 565.