R v Efandis [2008] VSC 508

[2008] VSC 508

CRIMINAL LAW - Sentence - Murder -Accused and deceased in relationship - Accused drugged deceased and set fire to house while deceased alive - Premeditation - Planned murder - Motive greed - No remorse.

Stuart Ward, Acting Solicitor for Public Prosecutions

1 Vasiliki Efandis. You have been found guilty by the jury empanelled on your trial of the murder of George Marcetta on 9 September 2004.

2 In order to determine the appropriate sentence which is to be imposed on you, it is necessary for me first to make findings about the circumstances in which you murdered Mr Marcetta. In doing so, I act in accordance with the evidence at your trial, and consistent with the verdict of the jury which was based on the case which the Crown put before it.

3 You met Mr Marcetta some two years before his death. You were then 44 years of age, and he was 56 years old. At that time Mr Marcetta was divorced, and he had one daughter, Athanasia. Mr Marcetta was then a self-employed painter, carrying out contract work under his own business name. Although the business in the past had had some difficulties, at the time at which you met him, and in the subsequent two years, it proved to be quite profitable. During those two years, you befriended Mr Marcetta, and developed a close relationship with him.

4 During the period of your relationship with Mr Marcetta, you became closely involved in his business and financial affairs. Over that time, you gained an interest in, and substantial control over, Mr Marcetta's assets and business. In 2003, Mr Marcetta sold the house in which he was then living in Dandenong, and you and he entered into a joint contract to purchase the property at 140 Liberty Parade, Bellfield, in which Mr Marcetta perished. Mr Marcetta contributed $100,000 to that purchase, and you contributed just over $80,000. Although the property was purchased in your joint names, on the settlement of the transaction, the title to the property was registered in your name alone. In the meantime, you gained a 50 per cent share of Mr Marcetta's business, without contributing any finance or capital to it. In addition, in mid 2002, Mr Marcetta had purchased a Jaguar vehicle, which he repaired and renovated at significant expense. In early 2004, that vehicle was registered in the name of your daughter, Atalanti.

5 Although the house at 140 Liberty Parade was purchased in your name, you did not live there. Mr Marcetta lived there on his own, but you visited him there, and on occasions stayed overnight with him. You were then living with your daughter nearby, at your home at 91 Oriel Road, Ivanhoe. On the evening of 8 September, you visited the house at 140 Liberty Parade. You cooked Mr Marcetta's dinner for him. You told the police in your interview that you had cooked his favourite dish, consisting of pork rolls and noodles. At about 2.00 am the house was set alight. It is indisputable that the fire was deliberately lit. There were multiple seats of fire, an accelerant (kerosene) was used, and large amounts of paper were spread throughout the house. The fire first became apparent to neighbours at about 2.30 am. After it was extinguished, Mr Marcetta's badly burned body was found next to the burnt bed in his rear bedroom. Subsequently, samples taken from his body at the post-mortem were found to contain high quantities of Temazepam. The evidence of the pathologist was that Mr Marcetta was alive at the time the fire commenced but, mercifully, he did not survive the fire for long. The pathologist's evidence, which was not the subject of any dispute, was that Mr Marcetta was killed as a result of the effects of the fire.

6 It is clear that the jury was satisfied beyond reasonable doubt that, on the evening of 8 September, you drugged Mr Marcetta with a large dose of Serepax, which you had laced in his meal and possibly also in his drink. In the previous 12 months, your doctor had twice prescribed you Serepax, in September 2003 and April 2004. You had retained a significant amount of that prescription, which you used in your plan to kill Mr Marcetta. Having drugged Mr Marcetta, and rendered him helpless, you then set about spreading paper throughout the house. In particular, you spread a large quantity of paper in Mr Marcetta's bedroom, next to his body. After the fire, investigators found five empty four litre bottles of Sparko kerosene, together with seven caps for such bottles. On that evidence, I am satisfied, as no doubt was the jury, that between 20 and 28 litres of kerosene were used by you as an accelerant to ignite and spread the fire. You then set fire to the bedroom in which Mr Marcetta was located. After you departed from that bedroom, you set fire in five other rooms of the house. In some rooms, there were multiple seats of fire. You then exited the house and went home to 91 Oriel Road. Subsequently, at 3.00 am a neighbour of the house in Liberty Parade telephoned you at your home at Oriel Road to tell you of the fire.

7 It is evident from the above description that your murder of Mr Marcetta occurred in circumstances which could only be described as chilling. The evidence was that Mr Marcetta was very fond of you. I am satisfied that, although you affected to reciprocate his affection, in reality you had no sentimental attachment to him at all. Rather, you insinuated your way into his life, gained his trust, and then abused it in the most appalling way. You resorted to lacing his favourite meal with the sleeping tablets, in order to prepare him for his death.

8 The evidence was that each evening, after you had previously gone home from the Liberty Parade house, you would send Mr Marcetta an SMS on your mobile phone, to which he would respond by using his mobile phone. On 8 September at 11.08 pm, you sent to Mr Marcetta's phone, from your phone, such a message. At 11.29 pm, Mr Marcetta's phone sent your telephone a message in response. I am satisfied beyond reasonable doubt, as I am sure that the jury was, that both of those SMS messages were sent by you, after you had drugged Mr Marcetta, and while you were still at the house at 140 Liberty Parade. You sent each of the two messages, in order to comply with the normal custom which existed between yourself and Mr Marcetta, and so as to provide an alibi for yourself. However, your plan came unstuck, because, unbeknown to you, the two SMS messages were served by the Preston base tower. The evidence shows that it is only remotely possible that the Preston base tower could have served your mobile phone, if you had been at your home in Oriel Road. Thus, the evidence powerfully establishes that you sent both SMS messages while you were at the Liberty Parade property, in order to implement your plan to murder Mr Marcetta. By that time, Mr Marcetta had been rendered virtually senseless by the Serepax, which you had caused him to ingest.

9 It is clear that you planned, and prepared to commit, your crime for some time before the day of the fire. The evidence does not indicate when you came into possession of the large quantity of Sparko kerosene, which you used in the fire. However, the evidence does establish that the label on the bottles of Sparko kerosene, which were found by the investigators, had been last used by the manufacturer in February 2004. I am satisfied that you came into possession of the kerosene sometime well before 8 September 2004. On the evidence, there was no reason for you to acquire the kerosene, other than to commit the crime which you ultimately carried out.

10 Immediately after you arrived at the scene of the fire at about 3.15 am on 9 September, you blamed Mr Ivan Bassett for the fire when you spoke to a policeman. In subsequent interviews with other investigators, you continued to blame Mr Bassett for that fire. There is no evidence whatsoever that Mr Bassett played any part in the fire at all. I considered that Mr Bassett was a sincere and genuine witness, and that the jury would have accepted his denial that he played any part in the fatal fire.

11 Mr Bassett had been a friend of Mr Marcetta for some time. During 2004, he and Mr Marcetta had had some differences. You sought to exploit those differences by implicating Mr Bassett in the fire, in order to escape any accusation against yourself. Further, in June 2004 you had falsely reported to the police that Ivan Bassett had stolen Mr Marcetta's tools on 18 June. You told the police that you knew that it was Mr Bassett who had committed that offence, because you had seen his vehicle driving away from the premises at Bellfield with a trailer containing Mr Marcetta's tools. Clearly your report was false. In fact, Mr Bassett's vehicle had been extensively damaged in a collision before 18 June, the date of the alleged burglary. Mr Bassett sold the wreck of the vehicle on 16 June to a motor vehicle wrecker, who gave evidence at your trial.

12 I am satisfied that your false report of the thefts relating to Mr Bassett was, in some way, related to your murder of Mr Marcetta. You made that report, either to exacerbate the differences between Mr Marcetta and Bassett, or, alternatively, to create evidence, in advance of your crime, that Mr Bassett bore such animosity to Mr Marcetta that he would stoop to stealing Mr Marcetta's tools of trade. Those conclusions reinforce my finding that your murder of Mr Marcetta was the product of planning by you over a significant period of time.

13 In addition, nine days before you committed the crime, you and Mr Marcetta consulted a solicitor, and instructed him to send a letter of demand to Bassett, claiming a debt which you alleged Bassett owed Mr Marcetta. The timing of that letter, and the circumstances of it, satisfy me that you arranged for that letter to be sent, in order that you might set up Mr Bassett as a potential suspect for the murder of Mr Marcetta, which you then intended to commit in the near future.

14 Finally, some two days before Mr Marcetta's death you had hired a Ford motor vehicle. There was no need for you to hire that vehicle, as you already had available three other vehicles for your own use. You hired it in order to conceal your presence at Liberty Parade in the early hours of 9 September, and so that you would not be identified leaving the premises at that time. The other vehicles, which you ordinarily drove, would have been readily recognisable, and associated with yourself.

15 Based on all that evidence, I am satisfied beyond reasonable doubt, as I consider was the jury, that you had planned, and prepared, your dreadful crime, over a period of some time before you committed it on the early morning of 9 September 2004. During that period, you had abundant opportunity to consider the enormity of the offence which you were about to commit, and for the normal human emotions of compassion and sympathy to displace your murderous intentions. Instead, throughout that period, you proceeded, cold bloodedly, to plan and prepare your murder of George Marcetta. Your callous ruthlessness was equally characterised by the cunning, evil and devious way you inveigled Mr Marcetta to eat his final meal, which you laced with Oxazepam, and then set about burning down the house, in which he had been rendered senseless, while he was still alive.

16 I am also satisfied that the motive for your crime was greed. You murdered Mr Marcetta because you believed that you would benefit financially from his death. As I have stated, you had already gained substantial control of Mr Marcetta's assets. The only person who stood in the way of your enjoyment of total ownership and control of those assets was Mr Marcetta. With his death, there was no-one left who could contest your ownership of the house at Bellfield, or your interest in his business.

17 You clearly have not felt, or displayed, any remorse at all for the death of Mr Marcetta. On the contrary, in recorded conversations which you had with friends in December 2004, you spoke most disparagingly of him. In your interviews with police investigators you told them a number of matters which were particularly derogatory of Mr Marcetta. That, of course, is not an aggravating circumstance. However, it reinforces my finding that you yourself felt no affection for Mr Marcetta, but, on the contrary, had callously exploited his attraction to and affection for you, in order to murder him for his worldly assets.

18 Furthermore, your conduct in seeking to lay the blame on Mr Bassett for the fire, and for the death of Mr Marcetta, is relevant both to your lack of remorse, and also as illustrating your high level of moral culpability. Your conduct demonstrates the ruthlessness with which you pursued, and put into effect, your evil plan. You were not content with murdering an innocent man, but were also prepared to falsely implicate another, in order to deflect suspicion from falling on you.

19 The findings, which I have so far made, disclose that your offending contains features which place it in the higher categories of the crime of murder. In summary, those features include the following. The murder had been pre-planned and pre-meditated over a period of time. It involved a gross breach of trust, and the betrayal by you of another person's genuine love for you. The murder by you of Mr Marcetta was callous, cold hearted and merciless. You showed no pity to your unwitting victim, and you clearly suffered no pangs of conscience as you set about murdering him. It was only fortuitous that Mr Marcetta did not survive for long in the fire. However, you were not to know that. By drugging him and then setting fires around him, you potentially condemned him to die helplessly in the midst of a horrifying inferno. If the medication you had given him had not been so effective, you could have exposed him to a terrifying death. You carried out your crime in a most devious, calculating and treacherous way. You were motivated purely by greed. Mr Marcetta gave you absolutely no cause to murder him. Indeed, on the contrary, he had been generous and loving towards you.

20 By your crime you have taken the life of a man who, on the evidence, enjoyed life, and was a decent and productive member of the community. He had a loyal group of employees and friends, a number of whom gave evidence at the trial. The victim impact statements of his former wife, Ionna Marcetta, and his daughter, Athanasia Marcetta, are salutary reminders that while Mr Marcetta was the primary victim of your dreadful crime, there are others who also have suffered considerably as a result of it. The grief, pain and sense of loss, felt by those who loved him, are the inevitable consequence of your wrongdoing.

21 The crime of murder is the most serious crime known to our legal system, involving the intentional taking of the life of another. The maximum sentence prescribed by law for murder is life imprisonment, signifying the seriousness which the law attaches to that category of offence. The features of your particular crime, to which I have referred, place your criminality in one of the higher classes of the crime of murder. The sentence which is to be imposed upon you must be adequate to properly reflect the Court's and the community's outrage at, and condemnation of, your conduct, and to vindicate the most important value protected by our legal system, namely the sanctity of each human life. The sentence must be of sufficient severity to deter others, minded to commit crimes such as yours, from doing so. Where a sentence is to be imposed for a premeditated act of murder, the consideration of general deterrence, in my view, is of particular importance. In addition, it is important that any sentence I pass on you be sufficient to act as a specific deterrent to you.

22 I turn, then, to matters relating to your background, in order to identify relevant mitigating circumstances. You are now almost 50 years of age, having been born in 1958. You come from a large family, and you are still close to your parents and siblings. You were educated in Moe, and completed your Higher School Certificate there. After leaving school, you undertook some tertiary study, and obtained a business studies qualification in Morwell. Since then, your working career, and your life, have been dogged by a number of accidents, and by injuries which you have sustained as a consequence of them. In 1979 you were involved in a motor vehicle accident in which you suffered neck and back injuries. At that time you were completing your business studies course, and also working part time at a hospital. In 1981 you commenced work as a caterer at the Royal Women's Hospital. You remained in that employment for some five years. At the same time, you were also working part time in a nursing home. During that time, you met and developed a relationship with George Cleoris. You became pregnant with your daughter Atalanti during that relationship. However, before Atalanti's birth in the latter part of 1985, the relationship came to an end.

23 Shortly after Atalanti's birth, you were involved in a serious motor vehicle accident. Since then, you have been in receipt of the Disability Pension. In 1986 you met and formed a relationship with George Likisiotis. That relationship continued, on and off, for over a decade. During that time Mr Likisiotis became close to your daughter, and he assumed the role of stepfather to her. You assisted Mr Likisiotis in his taxi business, and at one time also drove a taxi for him part time. After you separated from Mr Likisiotis, you carried out housekeeping work, and started your own housekeeping business. It was in that capacity that you first met George Marcetta, for whom you did some housekeeping work.

24 During the 1990s, and more recently, your misfortune with accidents continued. In 1996 you had a fall, in which you fractured your right wrist. The injury did not heal properly, and you had to undergo two bone graft operations in 1997. Dr Krishnamurthi, your general practitioner, gave evidence at your trial that, as a result of that injury, you lost a substantial amount of your grip and strength in your right hand. Dr Krishnamurthi also gave evidence that you had been involved in four motor vehicle accidents between 1979 and 1999. As a result of those accidents, you had a chronic strain to the upper region of your back and capsulitis of the left shoulder. You have had a large range of treatment including hydrotherapy, osteopathy, acupuncture and physiotherapy. You are also on blood pressure medication, and take Losec for a reflux condition which has been caused by the large amount of anti-inflammatories you have had to take.

25 Your counsel, Mr Thomson, on your plea, told me that at the end of last year you were involved in another motor vehicle accident while on bail. As a result of that accident, you sustained a fractured collarbone and injury to your neck. Mr Thomson also told me that although you are being treated for your various conditions in jail, nonetheless you do not have access to the same range of treatment as was available to you while you were at liberty. You also have a limited ability to work in prison, because of your physical disabilities. Based on that evidence, I accept that, in that way, the sentence of imprisonment which I am to impose on you will bear more heavily on you than it would if you were in better health.

26 There were also tendered to me a number of character testimonials, prepared on your behalf by friends and your siblings. Those testimonials show you to be a loyal, caring and generous sister and friend. It is clear, both from the testimonials, and from evidence at your trial, that you have been a good and loving mother to your daughter. Throughout your trial you were supported by two of your sisters. You are fortunate to have a close and supportive family.

27 For the purpose of sentencing, I accept that a lengthy term of imprisonment will be difficult for you, both because of your health problems, and also because it will largely cut you off from your close and loving family. I also accept that, when you ultimately are released from prison, you will have few if any assets, and will, to all intents and purposes, be largely destitute. Although your motive in murdering Mr Marcetta was greed, in fact you gained nothing, and indeed lost much, by committing the crime. Not surprisingly, the insurer refused to indemnify you for the damage to the house at 140 Liberty Parade. You were unable to keep up the mortgage payments. The property has been sold by the mortgagee, and the small balance, remaining after discharging the mortgage, has been forfeited to the Crown. Thus, you have lost the money which you invested in the property, which, it would seem, was a substantial part of your own assets. As a result, life will not be easy for you, on your release from jail.

28 In determining the appropriate sentence to impose on you, it is necessary for me to balance, on the one hand, the particularly serious features of your offending against, on the other hand, the mitigating circumstances to which I have just referred. Although you have two previous convictions for breaching an intervention order, those convictions occurred 10 years ago, and, in any event, are of no moment in the context of the offence for which you must now be sentenced. In determining your sentence, I take into account in particular your health, your age, your previous good character, and the need to ensure that the sentence which I pass on you is not crushing, bearing in mind the principles of totality. On the other hand, as I have already stated, your offence is a particularly serious instance of the crime of murder. You have callously taken the life of another human being, by exploiting his trust and affection for you. Your offending was premeditated, and driven by the base motive of greed. Throughout the time in which you planned and prepared the offence, and put into effect your plan, you had abundant opportunities to recant, and to abandon your dreadful crime. I would be remiss in my duty if I were not to impose upon you a sentence which adequately reflected your high level of culpability in this case, and the particularly grievous nature of your crime.

29 In the course of his plea on your behalf, Mr Thomson made reference to recent sentencing statistics. With the approval of your counsel, the Crown made available to me some material in that respect. In general, as I indicated in the course of your plea, sentencing statistics are of limited value only, because each sentence necessarily involves a unique synthesis of the various and diverse factors which must be taken into account in an individual case. Nevertheless, the statistics have some use, in providing a general overview of the sentences which have previously been imposed by our Courts for the crime of murder. To that limited extent they have been of some assistance to me in determining the sentence which I am to impose on you.

30 Taking all those matters into account I sentence you as follows. Vasiliki Efandis, I sentence you for the murder of George Marcetta to a term of imprisonment of 24 years. I fix a minimum non-parole period of 20 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 555 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.