R v Andrakakos; DPP v Arkan; DPP v Andrakakos [2003] VSCA 170

2. I have had the advantage of reading in draft form the reasons to be published in these matters by Ormiston, J.A. I agree with his Honour, for the reasons which he gives, that the application of Andrakakos for leave to appeal against his conviction should be refused; and that the appeals brought by the Director of Public Prosecutions against the sentences imposed upon Arkan and Andrakakos should be dismissed.

5. I also wish to express my agreement with the comments of Ormiston, J.A. that the sentences imposed upon Arkan and Andrakakos were at the lowest end of the range of sentences which the trial judge could reasonably have imposed for a murder of this kind. It is only the restraints, emanating from principles of double jeopardy and which govern Directors' appeals, which has led me to the view that the appeals against sentence should be dismissed.

10. The three appellate proceedings have been brought to the Court arising out of the prosecution and sentencing of Peter Andrakakos and Nese Arkan, to whom, for convenience, I shall refer by their surnames. Both were presented on a count alleging that they murdered one Keith Herman at McKinnon on 22 September 2001. Arkan pleaded guilty when she was arraigned on 6 November 2002 but her sentencing was postponed until after the trial of Andrakakos. Andrakakos, having pleaded not guilty, was found guilty by verdict of a jury on 14 November 2002 and was sentenced, together with Arkan, by Nettle, J. on 20 December 2002. His Honour's clear and comprehensive sentencing reasons, including a detailed statement of the relevant facts, may be found at [2002] VSC 577. In consequence Arkan was sentenced to be imprisoned for 21 years, with a direction that she not become eligible for parole until the expiration of a period of 17 years, and

Andrakakos was sentenced to be imprisoned for 19 years, with a direction that he serve a period of 16 years before becoming eligible for parole. The proceedings before the Court of Appeal consist of one application and two appeals. The application is brought by Andrakakos seeking leave to appeal against his conviction, confined at the hearing to a single ground that the learned judge's charge to the jury "was unbalanced and unfair in that the prosecution case was repeatedly put to the jury whereas by contrast the applicant's case was briefly explained". The two appeals are each brought by the Director of Public Prosecutions who has appealed against the sentences imposed against both Andrakakos and Arkan on the sole ground that each sentence was manifestly inadequate, giving identical particulars to which reference will be made in due course.

14. The facts relating to this horrifying murder are fully stated in the learned judge's sentencing reasons and in particular in paragraphs [3]-[27]. It should be understood that, although his Honour was able to sentence the two prisoners on essentially the same factual basis, there were some matters of detail, particularly derived from Arkan's record of interview (see especially para.[15]), which could not have been and were not led in evidence on the trial of Andrakakos. There was sufficient confirmation by Andrakakos of what he knew Arkan had done to the victim for the judge's summary to be used for the purpose of considering Andrakakos's conviction application. Moreover, as I would understand it, the facts relied on for and against each prisoner on the plea referred to their differing individual roles and there was no suggestion that the sentences could not be considered against the same factual background. For the purposes of this judgment, nevertheless, it is useful to state the essential facts briefly.

17. The victim, Mr Herman, was a widower aged 81 years old at the time of his death and had been living alone in his own home for several years. Arkan had met him through an escort agency and had lived with him for a very short time. There had been disputes between them and later a burglary, for which Arkan had been convicted on Mr Herman's complaint. Some time later she and Andrakakos, who was aged 24 and was some nine years younger than Arkan, began to live together and on the night in question they drove around the streets looking for someone to rob. Arkan remembered Mr Herman and suggested that he might be a suitable victim for that purpose, to which Andrakakos agreed. They parked nearby and some time about 1 a.m. they walked to Mr Herman's house. They broke in and found him sleeping in his bed[1] after they had entered. At Arkan's request Andrakakos blindfolded him and both he and Arkan thereafter over several hours ransacked his room and the rest of his house and loaded much property into one of the deceased's cars, which they used to transport that property to their own car.

20. For this purpose they demanded that he tell them where his money, credit cards and other valuables were to be found and for this purpose they[2] beat, kicked and tortured him for a lengthy period over the small hours of the morning. The precise timing of the vicious assaults on Mr Herman is not entirely clear but this much can be said. Their initial interrogation of the old man proved insufficient to produce what they had expected in money, credit cards and the like, so that they descended to the infliction of blows to his head and body, while he lay both in bed and on the floor to which he was subsequently pushed, each of them participating in the infliction of those blows. After a number of kicks to body and head while Mr Herman lay on the floor, his blindfold came away, at which time it may be assumed that he recognised Arkan. Thereafter at some stage Arkan asked Andrakakos to leave the bedroom and get on with the searching while she stayed alone with Mr Herman. Another terrifying period of interrogation and torture followed conducted by Arkan using a knife from the kitchen. During this period Andrakakos returned from time to time to see if more information had been extracted. Arkan used the knife viciously both with the blunt end to strike heavy blows to Mr Herman's face and with the cutting end, in the first place to prise out one of Mr Herman's eyes. Andrakakos happened to come into the room at this very time but returned to his systematic search of the rest of the house and outbuildings, vandalising them if they proved unproductive. At another stage he returned to see Arkan cut off at least part of Mr Herman's penis.

23. This excruciating pain and terror, as it was properly described by the learned judge, continued for up to four hours for it did not seem to result in Mr Herman's immediate death, nor in the first place was it intended to. The object was to place Mr Herman in a state of terror and pain caused by these grievous injuries which it was hoped would produce more information as to the whereabouts of his valuables. The expert evidence concluded that Mr Herman died during the time that the two prisoners were within the house and before they left, as a result of either a combination of the affects of those injuries in themselves or by reason of the strain which they placed on the old man's heart. Other than the knife injuries the expert witnesses described heavy injuries to the face and head, consisting in particular of complex fractures to the upper jaw and deep bruising of the tongue, together with a fracture of the rib and heavy bruising nearby as well as deep bruising of the diaphragm and to the tissues of the back, all consistent with impact by a blunt instrument or kicking. The forensic experts' task, however, was made harder by the fact that, when the prisoners had finished with Mr Herman and had taken what they had wanted, they set the house on fire seemingly by lighting a fire in the bedroom in order to incinerate Mr Herman's body, which to a significant extent they succeeded in achieving.

26. Afterwards they took the stolen property to store in both their bedroom and a back garden shed. They were arrested two days later in relation to another matter but they were then interviewed and charged with the murder of Mr Herman. At first they denied any involvement but in due course made admissions as to a significant number of matters. Arkan effectively admitted total participation but Andrakakos denied being involved with the knife injuries or with the fire, saying in effect that he had no intention of inflicting any serious injuries upon Mr Herman. At the trial therefore it was his participation in those injuries and, in particular, his intent which were in issue.

29. At that trial, in which Andrakakos was the sole accused, there was no eye-witness evidence of the principal events. The Crown case depended essentially on the applicant's own record of interview, which, after an earlier blanket denial of any participation, conceded that he had planned to rob Mr Herman and burgle his house and that he was present in or about the house while Arkan had inflicted most of the injuries. To him they were said to be a complete surprise and which he purported to disapprove. His participation seemed confined (apart from the burglary) to blindfolding and tying up the old man, struggling with him on the bed and floor and giving him a slight kick, characterised by him as a "tap". The Crown, nevertheless, placed heavy weight on his admitted participation in the burglary from start to finish and his admitted observation of Arkan's various attacks on the victim, including the specific knife injuries already described, while the applicant continued ransacking the house. Independent and forensic evidence was given of the nature and extent of the injuries, about the fire and its effects on the house and the finding and recovery of the victim's stolen property. The interview, of course, also included Andrakakos's denial of any planned use of force and of any conscious approval of Arkan's vicious attacks.

33. As I have said Andrakakos's application for leave to appeal against conviction is confined to the single ground that, in substance, the learned judge's charge to the jury was unbalanced and unfair because the prosecution case was repeatedly put to the jury in contrast to the applicant's case which was only briefly explained". The reason for this complaint appears to derive from the form of the judge's charge to the jury. To some it may seem to be in unconventional form, but it does not follow that it is any the worse for that. Instead of proceeding, almost religiously, through the judge's directions as to the use of evidence and otherwise as to the law, then to a summary of the evidence and finally to a summary of counsel's arguments on each side, Nettle, J. chose to deal with each issue raised by the trial by describing on each occasion the relevant principles and then following with the relevant evidence and the contentions of the parties. There was no detailed regurgitation of the evidence thereafter, nor did the judge summarise and repeat the final addresses as a whole.

36. One must say immediately that what Nettle, J. chose to do was entirely admirable and followed the precepts, often repeated over the years, that a judge's charge to the jury should be tailored to the circumstances of and the issues raised by the case before the Court, so that the only issue here can be whether the judge succeeded in doing what he set out to achieve. The principle, taken from the civil jury appeal in Alford v. Magee[3] was recently referred to by both Charles, J.A. and myself in R. v. De'Zilwa[4], when it was noted that it had been approved as applicable to criminal jury trials on at least six occasions in the preceding ten years by members of the High Court.[5] What is required must depend on the circumstances of each case. Of course the essential elements of the accused's case must be stated to the jury in one way or another but it does not follow that a mere point by point repetition of counsel's address is always or necessarily the appropriate way to go about that. If the accused gives evidence and calls witnesses, ordinarily there ought to be a summary of what that evidence is, but it may be preferable to summarise such evidence by way of repeating the relevant essential points as answers to each part of the Crown case as it is separately summarised. Where no evidence is given or called by the accused, and the only evidential material in his or her favour appears from the record of interview, much discretion will lie in the trial judge as to how that is put to the jury. Sometimes much of that evidence is incoherent and conflicting so that it will not serve the accused's interests to have that repeated verbatim or even in summary form. At other times what appears from the record of interview, though self-serving, may amount to a completely different account of events, about which the jury should be reminded in some way or another.[6] Again, although a general summary of what the accused contends through their counsel can suffice, a fair exposition of how it is contended that each disputed element of the Crown case has not been established may be preferable.[7]

39. As may be recalled, the only evidential material in favour of the applicant in the present case was that part of his record of interview in which he denied complicity in the murder of Mr Herman. Much of the early part of his interview consisted in bare denials and in the second part, after he had realised that he had to admit that he was present at the scene of the burglary, many of his answers were used to support the Crown case, although there was, as his counsel emphasised, a significant number of answers towards the end of the interview in which he denied knowledge that any violence was going to be used and in which he sought to distance himself from the attack which he conceded Arkan was making on the old man. It was this relatively small part of the interview upon which counsel for the accused placed reliance in his final address, so that he quoted passages extending to some two or so pages from it in order to make his various points.

42. What the learned judge chose to do in the first place, after dealing with the customary general directions, including those on onus of proof and on circumstantial evidence, was to explain to the jury in clear terms what were the elements of the crime. He then turned to the way in which the Crown put its case, explaining that in the first place true concert or "common design" was alleged, an arrangement between Andrakakos and Arkan to use as much violence as might be required to carry out the robbery; then, secondly, describing the prosecution alternative case of extended common purpose, to the effect that the prisoners agreed merely to commit the robbery and that Andrakakos contemplated Arkan would use only minimal force, but that it was possible that she might resort to a level of violence in fact used by her; thirdly, again in the alternative, the Crown contended that, although it might not establish that there was any actual or extended common purpose, Andrakakos aided and abetted Arkan in the murder of Mr Herman. As might be imagined each of those bases required his Honour to explain with some care and in some detail how the Crown might satisfy the jury to the appropriate standard about each alternative, bearing in mind that acceptance of any of the alternatives required the jury to be satisfied upon what was essentially a circumstantial case, with no direct evidence other than that which could be deduced from the limited admissions made by the applicant. Counsel for the applicant complained of the elaborate way in which the judge described the Crown case but, unless it was carefully described, and appropriate qualifications made, as in fact occurred, there was a risk, in a case where the killing had been so horrifying, that the jury might leap to unjustified conclusions.

45. Therefore the judge immediately after the explanations of the three different ways in which the Crown had put its case, turned to the three ways in which counsel for the applicant had answered that Crown case, albeit that that explanation concentrated on counsel's emphasis on the prosecution's failure to prove either version beyond reasonable doubt.

48. The learned judge then proceeded to give directions as to the applicable principles of law so far as each prosecution case of complicity was concerned. That again required the judge to give a careful direction as to the relevant elements of complicity, which he proceeded to do. Having dealt with the legal requirements of each of the three alternative bases for complicit liability, his Honour then summarised the relevant evidence.

51. For this purpose the judge dealt with three aspects of the evidence, but in what he described as the "reverse order". He began with the injuries inflicted on Mr Herman, doubtless because for the most part they were not controversial and because the critical issues in that respect were who inflicted those injuries and whether Andrakakos was aware for relevant purposes that Arkan was inflicting most of those injuries. So the judge next moved to summarise the Crown case in support of its contention that those injuries were in fact inflicted by one or other of the two accused. This in essence required a summary of Andrakakos's relevant admissions. At this stage the judge also summarised the factual contentions made by counsel on his behalf, such as his answer that the bruising on the deceased's back might be accounted for by the fall of an old man to the floor. Next his Honour pointed out that there was a dispute as to when particular blows were struck and in particular whether and to what extent Andrakakos himself had kicked Mr Herman in the stomach, but which he had said was merely a tap because no more was needed for a man of that age. Further, the learned judge dealt with some care with the extent to which Andrakakos knew of the injuries being inflicted by Arkan and comments said to have been made to her that she was "nuts to do such a thing over a Visa card" and his desire to get out of the place. The judge here emphasised counsel's submission on behalf of the applicant that the use of the knife by Arkan was done entirely on her own initiative and that his client had always denied that he was involved with its use or that he had ever handled the knife, despite some apparent cuts to one of his hands. Then again, as to the injuries to the victim caused by the fire, the judge emphasised that Andrakakos had denied all along any knowledge of how the house caught on fire. Throughout his Honour consistently repeated his requirement to the jury that it must be satisfied of each of the Crown allegations beyond reasonable doubt.

54. The final aspect of the factual evidence summarised by the learned judge related to that evidence which went to Andrakakos's and Arkan's common purpose and otherwise to Andrakakos's complicity in the murder of the victim. Here in fact the judge commenced that description by emphasising counsel's forceful submissions that their only arrangement or understanding had been that they should go to the victim's house to commit a robbery, that they would break and enter and steal but they would not use any violence. The judge therefore referred to those parts of what Andrakakos had said in his record of interview which counsel had contended were consistent with the view that he had not entered into any agreement about the use of violence. Various answers were repeated as to his lack of intention, according to the interview, to harm the old man, who he had said had offered no resistance. Moreover, his Honour emphasised that the applicant had said that he did not think that Arkan would do anything like what she had in fact ultimately done to Mr Herman. His Honour thereafter turned to aspects of the Crown case on this subject but again, within a short time, he reiterated defence counsel's argument that an agreement to tie up a man and blindfold him fell along way short of an agreement to inflict the kinds of injuries ultimately suffered by Mr Herman. The judge then dealt with certain parts of the Crown case in which the prosecution had asked the jury to draw an inference, but the judge reiterated counsel's submission that there was no such evidence. Indeed each item was followed by a reminder to the jury how counsel had submitted that the particular inference suggested by the Crown should be rejected. In particular, when he dealt with the evidence of the applicant seeing Arkan using the knife to put out one of the victim's eyes and cutting off a portion of his penis, he repeated the applicant's evidence that he had felt sick and his comment to Arkan about doing such a thing over a Visa card. His Honour emphasised counsel's argument that it was no part of the applicant's duty to stop an unexpected attack on another person, if the jury could not be satisfied that those persons were acting in concert.

57. Finally the judge turned to the third way in which the Crown had put its case and the evidence led for the purpose of showing that the applicant had aided and abetted Arkan in the killing of Mr Herman. His Honour recited some 12 factual matters relied upon by the Crown but emphasised at one stage that counsel for Andrakakos had reiterated that it was not for the accused to prove anything and that it was for the Crown to establish the case beyond reasonable doubt. The majority of the matters so recited by the judge were in fact taken from the applicant's record of interview, so there was little other factual material relating to this aspect of the case other than what had already been summarised and the applicant's denial of his participation in the murder, as opposed to the robbery. The Crown argued by inference from a circumstantial case and the defence, as had earlier been outlined by his Honour, had contended that such a case had not been made out to the necessary standard. This was made clear by the judge and there was little more that could have been said on this issue.

60. Thereafter there was, admittedly, no further description of the arguments on both sides, nor of any favourable matters in the record of interview. Each case must depend on its own circumstances and perhaps different emphases might have been placed on different aspects of counsel's argument. Nevertheless the totality of the material suggests that the judge had throughout reiterated the burden which rested on the Crown and the way in which counsel for the applicant had emphasised the failure of the Crown to make out its case to the necessary standard. The judge's analysis had therefore drawn together the relevant parts of the evidence and the contentions on each side at stages where the jury might most conveniently grasp the essence of what the Crown had to prove and the way in which that case was being denied. The judge's charge was therefore tailored to the circumstances of the case, a case which involved a necessarily elaborate description of some difficult legal concepts relating to complicity. At the end of the day I see no vice in what the judge chose to do and indeed great virtue in his avoiding a mere recitation of evidence and argument. Nor do I see that any important part of the defence "case" was omitted by his failure to set out every single answer given in the course of the interview. The gist of those answers, especially that part relied upon by his counsel, was appropriately summarised.[8]

63. For these reasons I consider that both the evidential basis of Andrakakos's case and the contentions put by counsel on his behalf at the trial were appropriately and sufficiently explained to the jury by the judge in the course of his charge to them. Some aspects may have been given greater emphasis than others, but that is a matter for the trial judge and he could not have been expected, for the purpose of directing the jury, to repeat every line of evidence or every contention made in counsel's address. I would therefore dismiss Andrakakos's application for leave to appeal against conviction.

67. It is appropriate to deal first with Arkan's sentence (for a term of 21 years' imprisonment with a minimum term of 17 years), because the judge clearly viewed her offending as the more serious. Whereas the learned judge felt it necessary to accept that it was more probable that Andrakakos had been found guilty only as an aider and abettor, his Honour's description of the offence in his sentencing reasons clearly shows that he thought Arkan went to Mr Herman's premises "with the intention of using such level of violence as might prove necessary in order to get [his] money and [his] valuables". In that sense his Honour held that the murder of the old man, whom she knew she could find asleep alone and unarmed in his own bed, was premeditated. Moreover in describing the attack as a "vicious and sustained" one whereby "they remorselessly subjected him to excruciating pain and terror", it may be seen from these findings as to their respective responsibilities that his Honour considered that Arkan was the principal perpetrator of the vicious attacks on Mr Herman which I have already described.

70. In Arkan's favour the judge held that, although her plea of guilty had been delayed until the last moment, she had been frank and had made full admissions to the police and that her acts had been significantly affected by the drugs she had been taking. Moreover he took into account a very disturbed youth in which she had been subjected to abuse and as almost as traumatic an early adulthood leading to all her four children being taken into care. He accepted that she was remorseful but, having regard to her lifestyle and her admitted prior 38 convictions, there was relatively little chance of rehabilitation which he described as "more probably a forlorn hope". One further observation should be added for the present, namely that the judge in imposing the sentence he did stated that it was only because of her plea of guilty that he had been dissuaded from imposing a considerably longer sentence.

73. On behalf of the Director it was forcefully asserted that the remorseless, brutal torture of the old man should have led the judge to the imposition of a considerably longer sentence. Condign punishment was called for to reflect the Court's denunciation of the excruciatingly painful way in which the respondent Arkan brought about Mr Herman's death over several hours, primarily for the purposes of satisfying her own and Andrakakos's greed. It was contended that, notwithstanding the mitigatory aspects resulting from her plea, remorse and unhappy personal history, his Honour's sentence, having regard to the appalling attack described, was manifestly inadequate.

76. What is remarkable about the appellant's submissions is that virtually every one of the judge's findings as to the circumstances of the murder and the character of the respondent was unchallenged, as was indeed the stated basis for the sentence, except to the extent that it was argued that less weight should have been placed on the respondent's drug habits. Moreover, this is not a case in which the appellant has had resort, except indirectly, to any of the relevant authorities on principles of sentencing, for it is merely contended that the particular punishment was manifestly inadequate. The Director does not on this occasion suggest that the range of sentences imposed for murders of this kind have been inappropriate, so that this Court is not asked on this occasion to reconsider that range as being inappropriate in principle. Consequently the Director faces the well-known, judicially imposed restraints on resentencing at the behest of the Crown. Essentially the appellant's complaint is that the maximum and minimum terms imposed for this murder were sufficiently outside the accepted range of sentences as to justify intervention on a Director's appeal.

79. Having regard to those restrictions I have come to the conclusion, though with some unease, that the sentence imposed on Arkan was not so far below the relevant range, whether one considers head or minimum sentence, as to permit interference at the behest of the Director. It is, in my opinion, a sentence at the very lowest end of that range, for this kind of killing, motivated essentially by greed but involving the brutal and vicious drawn-out torture of the victim, ought ordinarily to attract a significantly higher sentence. The judge has, perhaps generously, reduced the sentence he otherwise would have imposed by reason of the plea of guilty and the other mitigating factors, such as they were, but again I cannot view his reduction of what he might otherwise have imposed as being beyond what a judge might fairly have done in his discretion. In other words, having regard to all of the relevant factors, the sentence is not so manifestly inadequate as to justify intervention by this Court. I should add that, for myself, it may be appropriate at some time in the future to reconsider the range of sentences imposed for this kind of killing, but at present the Director cannot satisfy the stringent requirements necessary to justify the allowing of his appeal.

82. For these reasons I would dismiss the Director's appeal in the case of Arkan.

Director's appeal relating to Andrakakos's sentence

86. Having regard to what I have said in the case of Arkan's sentence, the conclusion to be reached in the case of the Director's appeal against Andrakakos's sentence of 19 years' imprisonment with a minimum of 16 years must be largely dictated by what I have already said in order to avoid any breach of the principles of parity and disparity in sentencing.

89. In the case of Andrakakos the judge, as already noted, concluded on the balance of probabilities that he had been involved in this vicious murder only as an aider and abettor of Arkan, a woman nine years his senior. It should be noted that, although he carefully took account of the principle that aiders and abettors may bear equal or similar responsibility to that of a direct perpetrator, it does not follow that necessarily in every case an aider and abettor should be sentenced on the same basis as the perpetrator or principal offender. He did not expressly find that Andrakakos's culpability was much less than that of Arkan, although clearly enough he saw some distinctions in their roles which had to be recognised, as his sentences demonstrate.

92. In describing Andrakakos's role the learned judge pointed out that he was considerably younger than Arkan and to some extent "under her spell", such that she may have motivated him to do things which he might not otherwise have contemplated. He certainly did not instigate the particularly vile bout of torture with the knife embarked upon by Arkan in the victim's bedroom while Andrakakos was searching for valuables and other property to steal and take away.

95. In describing Andrakakos's personal circumstances the judge pointed to other matters of distinction. Although subject to some unpleasant experiences in his youth, he had not been abused in the way that Arkan had, but on the other hand his record of only two convictions was considerably less. He was also affected by drugs on the night in question. His Honour accepted that his participation involved not merely the planning of the robbery but also participation in the fire, in order to cover their tracks. Although he had made some admissions, his Honour was not persuaded that he had shown any remorse. Rather he had seemed largely concerned to shift blame onto Arkan. Although his chances of rehabilitation were somewhat greater than those of Arkan, having regard to his lesser age, those prospects were regarded by the judge as "conjectural". In imposing the sentence he did his Honour explicitly stated that there was a "lesser degree of culpability" on his part and that his previous character had been somewhat better. He therefore imprisoned him, so far as the head sentence was concerned, to a term some two years shorter than that imposed on Arkan.

98. Again the Director's submissions did not seek to raise any question of sentencing principle, nor to suggest that the range of sentences imposed for this kind of murder should be reconsidered as a matter of principle. The sole issue was manifest inadequacy. Again there were no challenges made in argument to the findings of fact made as to the offending or to Andrakakos's characteristics which would suggest that those conclusions were wrong. The Director's arguments as to manifest inadequacy depended essentially on the contention that the factors listed by the learned judge must have been given excessive weight for such a low sentence, both as to the maximum and minimum terms, to have been imposed. In particular it was said that the comparison made with the offending by Arkan was inappropriate having regard to the responsibility of Andrakakos in aiding and abetting Arkan in the way that he did. Moreover his personal circumstances, including his potential for rehabilitation, must have been given inordinate weight for the judge to reach what was said to be such a low sentence.

101. To my way of thinking this was again a very modest sentence but, notwithstanding the matters raised on behalf of the Director, it again did not fall outside the range of sentences appropriate for this kind of offending and this kind of offender having regard to the stringent tests imposed for Crown appeals against sentence. Both maximum and minimum terms are so far to the bottom of the appropriate range that it is only those restraints which have induced me to conclude that the appeal should be dismissed. However, whatever has been said in the past about the responsibility of those who aid and abet serious offences such as murder, there are factors in the present case which suggest that the judge was correct in fixing the chosen difference between those terms and the terms imposed on Arkan. If, as the judge implicitly held, no attack on the victim was planned beforehand so far as Andrakakos is concerned, then his complicity in her vicious treatment of Mr Herman must be seen as a spur of the moment reaction to the way in which Arkan chose to carry out this killing. Doubtless he tied up and blindfolded Mr Herman, but as I would understand it, that was largely to avoid his recognising Arkan. The questioning of the old man clearly got out of hand but, as the kind of violence inflicted by Arkan was not part of any plan embarked on by Andrakakos, he was left largely in the position of having either to go along with what he could see of Arkan's attack or to pull out completely. Clearly he was too weak and greedy to do the latter and thus he was responsible for the murder and so to be condemned and punished appropriately for that. His only direct blow was the kick, so that the rest of the attack, both by kicking and by using of the knife, was essentially a matter of acquiescence so far as he was concerned. It went on for far too long with his knowledge, but none of it was on his initiative and certainly the knife attack was partly, by the design of Arkan, hidden from him. The fact that he observed,

expressing only minor hesitation on the first occasion, the two most vicious aspects of that knife attack goes to prove his complicity but not to show that his offending was on the same level as that of Arkan. Having regard to his youth and significantly lesser record, the distinction drawn by the learned judge was the kind of distinction which a judge in his discretion might fairly draw and it has not been demonstrated to have been drawn wrongly.

105. For these reasons, although again with the greatest of reservations, especially as to what may be seen to be the appropriate range of penalties for such crimes, I am not satisfied that the Director of Public Prosecutions has established any error by the sentencing judge of the kind which would justify intervention by the Court of Appeal. The appeal in the case of Andrakakos must therefore also be dismissed.

110. I agree with Ormiston, J.A. that the application by Andrakakos should be refused and the appeals by the Director of Public Prosecutions should be dismissed for the reasons stated by his Honour.

[1] The layout of the victim's house was, as one might expect, known to Arkan because of her relationship with him.

[2] For the purposes of Andrakakos's application, it seems likely that all but one blow (a kick) was inflicted by Arkan, especially as his Honour concluded at the plea that the most likely basis for the verdict was that Andrakakos was guilty on the basis of his aiding and abetting Arkan.

[3] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto, JJ.

[4] [2002] VSCA 158; [2002] 5 V.R. 408 at 416-417 and 411.

[5] Ibid, at 411. The figure is more accurately nine: see also De Gruchy v. The Queen [2002] HCA 33; (2002) 76 A.L.J.R. 1078 at 1084 para.[44]; Doggett v. R. (2001) 208 C.L.R. 343 at 373 [115]; KRM v. The Queen [2001] HCA 11; (2001) 206 C.L.R. 221 at 259 [114].

[6] As to the evidential effect of favourable or self-serving statements in a record of interview see, e.g. R. v. Duncan (1981) 73 Cr.App.R. 359; R. v. Su [1997] 1 V.R. 1 at 64-66; Cross on Evidence (Australian Loose Leaf ed.) paras.17335 and 33455.

[7] See De'Zilwa at 410-411 paras.[4]-[6].

[8] This case is therefore very far removed from R. v. Veverka [1978] 1 N.S.W.L.R. 478, the only authority relied on by the applicant.