76 ALJR 133
Imnetu v R [2014] NSWCCA 99
Kentwell v R [2014] HCA 37
Muldrock v R [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
185 ALR 11176 ALJR 133
Imnetu v R [2014] NSWCCA 99
Kentwell v R [2014] HCA 37
Muldrock v R [2011] HCA 39
Judgment (3 paragraphs)
[1]
Solicitor:
Solicitor for Director of Public Prosecutions
Legal Aid NSW
File Number(s): 2011/296712
[2]
Judgment
HER HONOUR: On 9 February 2015 the offender, Jason Hiroki, was charged by way of indictment that, on 27 July 2011 at Mount Saint Thomas in NSW, he murdered Nicholas Katapodis. He pleaded not guilty to this charge. A co-accused, Aroha Hiroki, was charged in the same indictment with murdering Nicholas Katapodis and she also pleaded not guilty. In addition Jason Hiroki was charged, in the alternative, that he was accessory after the fact to his co-accused, Aroha Hiroki, murdering Nicholas Katapodis. He pleaded guilty to this charge. Aroha Hiroki pleaded not guilty to a corresponding alternative charge that she was accessory after the fact to Jason Hiroki murdering Nicholas Katapodis. A jury was then empanelled, and a joint trial proceeded against the two of them. On 11 March 2011 the jury found Jason Hiroki guilty of murder and Aroha Hiroki not guilty of both charges. Jason Hiroki now comes to be sentenced in relation to the primary charge of murder. The alternative charge of being accessory after the fact, to which he pleaded guilty, is rendered inutile by the jury's verdict.
The factual background, briefly, is as follows. Both Jason and Aroha Hiroki are New Zealanders by origin. They share the same surname because they are first cousins. At the time of the offence they had been living together as partners for a number of years, but they were not married. They were renting a house in Gladstone Avenue in Mount Saint Thomas, a suburb of Wollongong. The offender was working as a tattooist. Aroha Hiroki was working as a prostitute in local brothels. It is uncertain whether the offender knew about her occupation at the time. He said that it came as a complete surprise to him when he discovered, after the offence, what she had been doing, whereas she said that he had known about it all along.
In the late morning or early afternoon of Wednesday 27 July 2011, the two Hirokis went to the Hellenic Club at Figtree, a nearby suburb of Wollongong, where they joined up with a friend of theirs, Wade Knowles. The three of them were sitting in the outdoors smoking area, drinking beers, when the deceased, Nicholas Katapodis, who was a friend of Wade Knowles, came and joined them. The four of them sat drinking and talking for a while. Mr Katapodis had never met the Hirokis before, but they appeared to be getting on well, so it was arranged that they would all go back to the Hiroki residence in Mount Saint Thomas and continue their drinking and talking. They left the Hellenic Club and first went to the Figtree Cellars, virtually next door, where they purchased some beer. They then drove to Wade Knowles' home in order to collect some cannabis, after which they returned to the Figtree Cellars and bought some more beer as well as a bottle of vodka and a bottle of Kahlua. CCTV footage showed that their two visits to Figtree Cellars took place at 3.22 and 4.40pm respectively, so they presumably arrived at the Hiroki residence a little before 5.00pm.
What happened thereafter comes largely from the evidence of Mr Knowles, at least until he left the house at about 8.30 pm. The two Hirokis also gave accounts which were largely consistent with that of Mr Knowles in relation to those earlier times. However they gave significantly divergent accounts as to what happened after he left. I shall be returning to say more about this a little later.
It seems that after they arrived at the Hiroki residence, the four of them sat around the dining room table, drinking copious amounts of alcohol, for a good three hours. The three men were also smoking cannabis. At about 8.00 pm Mr Katapodis got up to go to the toilet. A little later the offender, Jason Hiroki, went to the bathroom, and called out in anger. Mr Katapodis, who must have been heavily intoxicated by that time, had urinated all over the bathroom walls. Mr Knowles went to the bathroom to find out what was happening, and saw the offender strike Mr Katapodis in the face, sending him to the ground, apparently unconscious. Mr Knowles assisted Mr Katapodis to his feet, and restrained the offender from any further outbursts. They all, according to Mr Knowles, then returned to the dining room, and continued to drink around the table. At first there was some hostility between the offender and Mr Katapodis, but after a while things seemed to settle down, and the atmosphere had returned to normal, he said, by the time he left and drove home, at about 8.30 pm.
Wade Knowles was the last person, other than the Hirokis, to see Nicholas Katapodis alive.
The details of what happened thereafter remain unknown. One thing is virtually certain, namely that Mr Katapodis was murdered within the next three hours. At about 11.35 pm, Aroha Hiroki telephoned for a taxi to come to the Mount Saint Thomas address. She and the offender then took the taxi to the Coniston Hotel, where they arrived at about midnight. The bar attendant said that they had one or two drinks, and left after about half an hour. CCTV footage shows that they were both wearing different clothing from what they had been wearing earlier in the day, as shown in the CCTV footage at the Figtree Cellars.
The next day, 28 July, the offender again saw Wade Knowles. He told him that after Mr Knowles had left their home the previous night, Mr Katapodis had threatened to send some hit men over to give the offender a hiding. So the offender had struck him in the face. Mr Katapodis had then got up and left, and that was the last they had seen of him.
On Sunday 31 July the offender went to the home of an acquaintance, Gavin Webster, who lived on a large area of land at Dapto, south of Wollongong. He asked Mr Webster if he could "borrow a bit of turf". When asked what for, he said it was to bury a body. He told Mr Webster that he had killed a man. He had gone to get some beer late at night, he said, and when he returned he found this man "on top of his missus", so he grabbed him and threw him across the room. The man hit his head on the table and died. Mr Webster refused the offender's request.
On 4 August 2011 the offender went to Queensland on a pre-arranged working trip, followed a week later by Aroha Hiroki. They remained there until the middle of September. In the meantime, Mr Katapodis's relatives had become increasingly concerned at his disappearance. On 12 August his sister reported him as missing to the police. After speaking to Mr Knowles, the police made the connection with the Hirokis, and they obtained a warrant to search the Mount Saint Thomas house. When they did so they found copious amounts of blood on and under the carpets, as well as blood on the furniture and blood spatters on the walls. An attempt had been made to clean much of it up, but a great deal still remained. Virtually all of it contained the DNA of the deceased, Nicholas Katapodis. There was no sign of a body. The police looked under the house, but concluded that the soil was too compacted for a body to have been buried there.
On 14 September 2011 the offender returned from Queensland. He was arrested the same day and charged with the murder of Nicholas Katapodis, largely on the basis of the bloodstains in the house together with the offender's conversation on 31 July with Mr Webster. He has been in custody ever since.
The offender at that stage declined to say anything to the police. However Aroha Hiroki gave a number of interviews. It is unnecessary to describe them here, except to say that she continued to maintain the story that, after an altercation between the offender and Mr Katapodis, the latter had walked out of their home on the night of 27 July. No charges were laid against her at that stage. However some time later she was charged with being accessory after the fact to the offender's murder of the deceased. She was granted bail.
It is apparent that the relationship between the offender and Aroha Hiroki deteriorated significantly while the offender was in custody. By the end of 2012 their telephone conversations, all of which were recorded, had become quite vitriolic, and Aroha Hiroki had apparently commenced another relationship.
The offender was due to face trial in the Supreme Court in March 2013. In February that year, his solicitor contacted the police and said that he would like to give them further information. On 28 February he had an extensive recorded interview with police, in which he gave the following account of the events on the night of 27 July.
After Wade Knowles had left, the offender said, the three of them sat around the dining room table, drinking and smoking. Some time later he, the offender, left the other two and went over to the couch in the lounge room to go to sleep. He was in the habit of doing this, he said, after drinking beer and smoking cannabis. He asked them to wake him in an hour, and he would then re-join them. The next thing he knew, Aroha was tugging at his legs and calling for him to wake up. He got up and saw Mr Katapodis lying on the dining room floor. He was not breathing. He asked Aroha what had happened. She said that Mr Katapodis had tried to come onto her, and that she had "whacked" him. He, the offender, was stunned, he said, so he took some beers from the fridge and walked outside. He did not want to remain in the same house as the body, so they left and went to the Coniston Hotel. After they returned, in the early hours of the next morning, he dragged the deceased's body to a shed at the back of the house, and locked the door.
The next day he borrowed Wade Knowles' car, and bought cleaning materials at a local supermarket so that Aroha Hiroki could clean up the blood. They also spent some time with Mr Knowles and another friend. The offender gave them an account of what had happened the previous evening, which became the version that the Hirokis would generally use from then on. According to this version, after Mr Katapodis had threatened the offender with the hit men, the offender had struck him so hard as to cause him to bleed extensively. Mr Katapodis then got up and staggered out of the house and walked down the street. This was the last they saw of him.
This version was designed, the offender told the police, to explain the extensive blood in the Gladstone Avenue house.
The offender also told police about going to Gavin Webster's home on the Sunday after the killing in an endeavour to dispose of the body. When that was unsuccessful, the only way to dispose of the body that he could think of was to bury it under the house. So the next day he dug a hole in the earth under the house. He and Aroha then wrapped the deceased's body, which was still in the shed, in gladwrap. That evening, after dark, they put the body on a skateboard and took it around to the point where you could access the area under the house. He put the body into the hole which he had previously dug. The next day he went back and covered the body with earth and trampled it down. As we now know, he did such an effective job that when the police first looked under the house, only two or three weeks later, they concluded that no body could have been buried there.
The offender said that he had been prepared to take the blame for Aroha's actions in killing Mr Katapodis because she was young and had her life ahead of her. He felt sorry for her, he said. But she had displayed no loyalty towards him, and his sister had been threatening to tell the police the truth, so he thought that he should do so himself. It was for this reason, he said, that he had come out with the truth so late in the day.
After this interview the police returned to the Gladstone Avenue house. This time they dug through the compacted earth under the house, and found the body of Nicholas Katapodis. It had been partially wrapped in gladwrap.
On 4 March 2013 a post mortem examination of the deceased's body was conducted by the forensic pathologist Dr Rebecca Irvine. Given that this was more than 19 months after his death, there had been significant post mortem changes, which made the doctor's assessments of the cause of death more difficult, although she said that the tissue preservation was remarkably good, given the time which had passed. This was because the body had not been exposed to the air in the meantime.
Dr Irvine found three separate fractures of the deceased's skull. The first was a focal depressed, or indented, fracture on the top front of the skull, slightly to the right hand side. The fracture itself was small - about 1.2 cm in size, but over it was a large three-cornered laceration, about 9 cm in length. Dr Irvine assumed that these were associated, because they were in the same place, but it was possible that they were separate injuries. The second fracture was a long, linear fracture of the left temporal skull, involving the base of the skull. The third fracture was in the left posterior fossa of the base of the skull. In addition there was an acute fracture of the ulna in the left forearm, about one third of the way between the wrist and the elbow. Finally, and somewhat surprisingly, there was a plastic wrapper from a carton of beer stuffed into the deceased's mouth, inside the cheek region. Dr Irvine only discovered this when she pulled back the deceased's lips in order to check his teeth. She said that it could have been deeper in the deceased's throat at the time of death, and been dislodged when the body was moved. In that event it could have caused suffocation. If it had been further back in his throat, or in his windpipe, it would have been fatal, the doctor said.
Given the time that had passed, Dr Irvine was unable to specify the cause of death with any degree of certainty. However she said that the skull fractures were potentially life-threatening injuries, and were the probable cause of death.
In the light of this new information, the offender's impending trial date was vacated. On 27 March 2013 the police charged Aroha Hiroki with the murder of Nicholas Katapodis. On the same day she entered into a lengthy recorded interview with the police. Quite surprisingly, in the early part of this interview she continued to maintain the same version of events that she had previously given to the police, namely that after the altercation between the offender and Mr Katapodis, the latter had left the house and walked away. This was in spite of the fact that she knew by then that his body had been found buried under their house.
During the course of this interview the police told Aroha Hiroki about what the offender had said in his interview of 28 February, namely that it was she who had killed Mr Katapodis. They also told her that a conversation she had had over lunch with the offender's sister, Kerri-Lee Hiroki, about three weeks earlier, had been lawfully recorded by police. In this conversation Aroha Hiroki had made some potentially self-incriminating statements. Shortly after telling her this, the police interview was suspended. When it resumed an hour and a half later, Aroha Hiroki appeared to be very upset, and said that she wanted to tell the police the truth. She said that Mr Katapodis had never walked out of their house. After Wade Knowles had left, and the three of them were sitting around the table, the offender had grabbed one of his bowling balls from its bag beside the door, and had thrown it at Mr Katapodis' head. Mr Katapodis fell to the floor, after which the offender again struck him on the head with a bottle, breaking the bottle. There was a great deal of blood, she said, and after a while she realised that Mr Katapodis was dead. Her account was a little garbled, but it seems that before this happened there had been a previous altercation between the offender and Mr Katapodis in which, amongst other things, Mr Katapodis had tried to punch the offender, but had missed and had himself fallen to the floor. She denied that she had had any physical contact with Mr Katapodis, saying that the only time she touched him was to feel for his pulse. She also denied assisting the offender in disposing of the deceased's body.
The trial of the two accused occupied a little over a month. Considerable evidence was called as to the events surrounding the killing of Mr Katapodis, although - for obvious reasons - no Crown witness was in a position to indicate what happened immediately before his death. The jury was taken on a view of the Mount Saint Thomas house. This was extremely helpful, particularly in light of the evidence as to the distribution of bloodstains inside the house, which I shall return to discuss a little later.
At the close of the Crown case the offender chose not to go into evidence. Aroha Hiroki, however, gave evidence and was extensively cross-examined by the Crown Prosecutor and by Ms Janet Manuell SC who appeared for the offender. Ms Hiroki said in her evidence in chief that the account of events which she had given in her interviews was not the truth. The true version, she said, was as follows. She did not see the confrontation between the offender and Mr Katapodis in the bathroom, but after the three of them had come out of the bathroom and into the kitchen (which is between the bathroom and the dining room) she saw the offender hit Mr Katapodis twice. On each occasion Mr Katapodis fell to the ground and then got back up again. Wade Knowles went between them in order to calm them down, and the three of them went back into the dining room. At about that time, the witness said, she herself got up to check the state of the bathroom. As she walked past Mr Katapodis she gave him a shove. She then went and cleaned up the mess in the kitchen and the bathroom. Shortly after she returned to the dining room, Mr Knowles got up and left, without telling anyone that he was going. The offender asked Mr Katapodis if he would like a beer, and having received an affirmative answer he got up to get one. As he passed Mr Katapodis, the latter got up and threw a punch at the offender, but missed and himself fell to the floor. He then got up and sat back down again. This, according to Aroha Hiroki, angered the offender, and he struck Mr Katapodis who again fell to the ground. The offender picked him up and put him against the wall where he hit him again. At that stage, Ms Hiroki said, she herself left the room and went outside. When she returned Mr Katapodis was lying on the ground and the offender was sitting at the table having a smoke. The offender then picked up a bottle and smashed it over the deceased's head. A little later he got his bowling ball out of its bag and again smashed the deceased over the head. He asked Aroha Hiroki to get him a beer, which she did. She then left and went to her bedroom. Some time later she saw the offender drag something past the bedroom window in the direction of the garden shed. Later again he came into the bedroom and said that he wanted her to take the blame for the killing. Then, at his insistence, she had a shower and accompanied him to the Coniston Hotel.
Ms Hiroki admitted that after the killing, she assisted the offender by cleaning up the blood and by helping him convey the deceased's body to the point where it was buried under the house. However she said that she only did this under duress, as the offender had threatened to kill her if she did not do so.
As indicated, Ms Hiroki was cross-examined extensively by both the Crown Prosecutor and Ms Manuell SC. It is unnecessary for present purposes to describe this cross-examination in any detail, except to say that in a number of respects, her account did not stand up to closer scrutiny.
The jury's verdict indicates that they must have found that the offender acted alone when he assaulted and killed Mr Katapodis, and that Aroha Hiroki acted under duress when she assisted him after the event; or, to put it more accurately, they were not satisfied beyond reasonable doubt that she did so voluntarily, and in the absence of duress.
I turn now to say something about the offender's background. Much of this derives from a lengthy report of the psychologist Anna Robilliard, dated 28 April 2015, which was tendered by the defence in the sentencing proceedings.
The offender is now 43 years old, having been born in Invercargill, New Zealand, on 1 November 1971. He is of joint Maori and Scottish descent. His childhood was, on all accounts, relatively uneventful. He loved sport and art, and excelled at both of them, being an outstanding rugby player and an accomplished artist. In 1988 much of the family, including the offender, moved to Australia, to the Wollongong area. In 1992, at the age of 20, the offender joined the Australian army. At about that time he married an old girlfriend from New Zealand. Later in the same year the offender had an accident playing football for the army, in which he suffered a severe injury to his lower back. As a result he was discharged from the army, and put onto a pension. Since then he has undergone three major surgical procedures, but his pain levels have remained at a constantly high level. Indeed, he told Ms Robilliard that his pain has been much worse since the most recent operation in 2008.
This injury was clearly a defining event in the offender's life. He had to cease his sporting activities as well as his life in the army. He resorted to substance abuse and alcohol in order to deal with the physical and psychological issues arising from the injury and its aftermath. As a result his marriage was damaged, and his wife left him in 1997. The offender expressed deep regret at this. He thinks of her constantly, he told Ms Robilliard.
In about 2002 the offender returned to New Zealand, where he undertook studies in master carving. Whilst there he commenced a relationship with his first cousin, Aroha Hiroki, who is ten years younger than him. The family disapproved strongly of this relationship because of the close familial ties, and as a result the couple became largely distanced from the rest of the family. Not long afterwards the two of them moved to Australia.
On all accounts the relationship between Jason and Aroha Hiroki was marked more by excessive drinking, violence and sex than by mutual affection. The offender's mother, in a letter which was tendered on sentence, said that the two of them already had drinking problems, and when they got together the situation became much worse. As Mrs Hiroki put it, they were always drinking, arguing and using foul language.
This observation is certainly borne out by listening to the telephone calls between the two of them when the offender was in custody.
The offender has a lengthy history of relatively minor offences. These started when he was a minor both in New Zealand and Australia, and a number of them pre-dated his back injury. Since the year 2000 he has, on my calculation, been before the courts on 11 occasions, in relation to 18 different offences. A number of them have been offences of violence, such as assault. However their relatively minor nature is indicated by the fact that, in spite of his extensive record, he has never previously been sentenced to full time imprisonment. The most recent series of offences were dealt with in 2010. On 12 January 2010 the offender was fined and placed on a two-year good behaviour bond for two offences of common assault and one of affray. He was subject to this bond when he committed the present offence.
I should say at this point that Ms Robilliard in her report gave an account of the offender's prior convictions. She noted that no offences were recorded between 1995 and 2008. This is certainly correct so far as his NSW criminal history is concerned. However the New Zealand police records show that between 1999 and 2006 the offender was before the New Zealand District Court on eight occasions and was convicted of a total of 11 charges.
At this stage I return to say more about the circumstances of the killing itself. For obvious reasons, no one other than the offender, and possibly Aroha Hiroki, can know precisely how Mr Katapodis met his death. Perhaps the most illuminating evidence in this respect came from Detective Sergeant Gregory Moon, a crime scene expert with particular expertise in blood spatter interpretation. During the Court's view of the Mount Saint Thomas house, it was Sergeant Moon who showed the jury the significant portions of the premises. Also through him a large number of photographs were tendered, showing the blood patterns as originally found by the police when they searched the house in August 2011. These showed extensive blood in three principal areas of the house, the first being the northern end of the dining room not far from the kitchen door, the second being the southern end of the dining room close to the lounge room, and the third being in the lounge room itself. According to Sergeant Moon, the distribution and pattern of blood stains indicated an event that was both mobile and spread over a period of time. In other words, it was likely that there were multiple incidents before the deceased finally came to rest in the first area, not far from the kitchen. In addition, blood spatters under the dining room table and in other areas indicated that the deceased was close to or on the ground when some of the incidents took place. It follows that Mr Katapodis must have been struck heavily enough to produce extensive bleeding in several parts of the house, and was probably struck again when he was already lying on the ground. It seems that none of the blood which was later found in the house bore the DNA of either of the Hirokis, so it must be assumed that Mr Katapodis himself did not display any significant violence towards either of them. There were certainly no overt signs of injury when they went to the Coniston Hotel later that night or when they saw Wade Knowles the following day.
For obvious reasons, the various accounts given by Aroha Hiroki must be treated with suspicion, and could not be relied upon unless they were supported by the objective evidence. In this respect, there was one portion of her interview in February 2013 which does appear to align with the objective evidence. It relates to a bowling ball owned by the offender. There can be little doubt that a bowling ball must have been involved at some stage during this episode, as the police later found the offender's bowling bag, containing four bowling balls, with extensive bloodstaining inside it. Part of this staining must have occurred, Sergeant Moon said, when one of the balls was not in the bag. Aroha Hiroki said in her last interview that the offender lent down and got a ball out of the bag and threw it at Mr Katapodis's head. This accords with an indentation relatively high on the dining room wall near the kitchen door, which exactly corresponds with the markings on a bowling ball. Accordingly, it is very likely that this particular episode did occur, roughly as described by Ms Hiroki. Certainly the injuries sustained by the deceased are entirely consistent with his having been struck with a bowling ball. They are also consistent with his having been struck by a bottle, as described by Ms Hiroki.
I turn now to discuss the objective seriousness of this offence, which is a relevant matter when setting the non-parole period. The standard non-parole period for murder is 20 years and the maximum sentence is life imprisonment.
Ms Manuell submitted that this offence falls below the middle range of objective seriousness for three primary reasons. They are: first, that this was a spontaneous, unpremeditated offence; second, the offender's intention at the time was to inflict really serious injury rather than to kill; and thirdly that I could not be satisfied beyond reasonable doubt that a weapon was used to kill the deceased.
As to the first matter, I accept that this was indeed a spontaneous offence without any premeditation. The offender had never met Mr Katapodis before that day, and until the episode in the bathroom it seems that their relationship was entirely amicable. Even after that episode and the events which immediately followed it, Mr Knowles described the atmosphere as having settled down and become relaxed by the time he left the house about half an hour later. We are not to know what happened to re-ignite the situation, but the offender's attack on Mr Katapodis was clearly a spontaneous reaction on his part.
The second and third matters raised by Ms Manuell are closely inter-related. She submitted that I could not be satisfied beyond reasonable doubt that a weapon was used by the offender, and that his intention was not to kill Mr Katapodis, but rather to inflict really serious injury. However in my view the injuries sustained by the deceased, together with the blood pattern distribution in the house, lead to an almost inevitable inference that a weapon or weapons must have been used. It would be unlikely in the extreme, to say the least, that the offender could have caused the three fractures to the deceased's skull with the use of his bare fists. Nor is the blood distribution throughout the house consistent with them having been sustained when Mr Katapodis fell against a hard object. In spite of Ms Manuell's submissions, I am satisfied beyond reasonable doubt that a weapon must have been used by the offender to inflict at least some of the injuries sustained by the deceased. It is not necessary for present purposes to make a positive finding as to what weapons were used, but, as already indicated, I think it highly likely that a bowling ball was used, and probably also a bottle.
This finding is material to the offender's intention at the relevant time. It is clear from Sergeant Moon's evidence that the assaults upon Mr Katapodis took place in different parts of the house, and over a period of time. I accept that the offender's capacity to perceive the consequences of his actions might well have been diminished by the alcohol and cannabis he had taken, but the actions themselves appear to have been so extreme that the offender must have realised that there was a real probability of death resulting. In any event, I accept the Crown submissions that in the particular circumstances of this case, there is little distinction to be drawn between an intention to kill and an intention to cause really serious injury.
The Crown Prosecutor submitted that the offence falls within or close to the middle range of seriousness, although he stressed that this is a range of seriousness rather than a fixed point. Given the savagery and the apparently sustained nature of the attacks on the deceased, I accept this to be the case, and I find that this offence is within the middle range of objective seriousness for murder. However the spontaneous nature of the offence would place it towards the lower end of that range.
I come now to discuss the aggravating and mitigating factors which are required to be taken into account on sentencing under s 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). The aggravating factors in the present case, which are not inherent in the offence of murder, are as follows: that the offence involved the use of a weapon; that the offender has a record of previous convictions, and that the offence was committed while the offender was on conditional liberty in relation to an offence. In relation to the offender's prior record, Ms Manuell submitted that this was not a relevant factor as he has no previous convictions for "serious personal injury offences." However I interpret s 21A(2)(d) as applying in all cases where the offender has a record of previous convictions. The section goes on to say that this factor is to be accorded particular significance in cases where an offender who has a record of previous convictions for serious personal violence offences is being sentenced for a serious personal violence offence. Certainly that is not the case here. But it by no means follows that the provision has no application.
S 21A also specifies as aggravating factors that the offence was committed in a person's home and that it was committed in company. However, given that the home here was that of the offender, and that the only person present was his partner and co-accused, I do not consider these matters to have any relevance in the present case.
The sole mitigating feature under s 21A is that the offence was not part of a planned or organised criminal activity. Ms Manuell submitted that s 21A(3)(e) also applies, in that the offender has no significant record of previous convictions, but for reasons already given I cannot accept this submission.
The Crown submitted that the offender has shown a complete lack of remorse and callousness towards the victim from immediately after the attack until the present. He referred to the CCTV images taken at the Coniston Hotel on the night of the killing and to the offender's recorded telephone calls from gaol. In response, Ms Manuell presented further written submissions, in which she pointed out that these matters were not as simple as had been depicted in the Crown submissions, and that the offender has indeed expressed his regret at the course of events. I do not propose to go through these issues in any detail. It is certainly the fact that the offender has made no overt expression of remorse. Indeed, he has continued to assert his innocence of this charge. This cannot be used as an aggravating factor, but it deprives him of a potentially powerful mitigating factor.
Ms Manuell tendered a lengthy report of the psychologist Anna Robilliard. Ms Robilliard noted that the offender's accident in 1992 had profoundly affected his life ever since, leading to a dependence on alcohol and drugs in order to help him deal with his relentless back pain. She administered a test which is designed to measure severe personality pathology and reactive mood states. The offender measured extremely high on the scores relating to borderline and schizotypal personality disorders. People with these conditions have difficulty trusting other people, Ms Robilliard said, they perceive life as meaningless and are highly prone to depression. She described the offender as "a deeply unhappy man whose chronic pain has blocked him from finding a rewarding or enjoyable lifestyle. His intrinsically destructive dependence on alcohol and drugs has given him episodic temporary relief from emotional distress and simultaneously led to his pathological behaviour patterns and vulnerability to legal sanctions."
A significant issue on sentence in a case such as this is the offender's prospects of rehabilitation. This is a very difficult matter to predict in the present case. To a large extent it is likely to depend on the offender's ability to abstain from alcohol and drugs upon his release from custody. And this in turn is likely to be associated with the management of his pain levels arising from his lower back injury.
This brings me to discuss a matter which Ms Manuell raised on sentence, namely whether special circumstances exist which justify a departure from the statutory ratio between the head sentence and the non-parole period. Ms Manuell tendered two reports of Dr Eddie Price, dated respectively 11 September 2014 and 27 March 2015. Dr Price is, amongst other things, an injury management consultant. He confirmed that the offender continues to suffer from chronic back pain syndrome. He expressed the view that his incarceration places additional hardships on the offender, as he has restricted access to appropriate pain management medication as well as psychological services to assist him in his relaxation and pain management skills.
The Crown submitted that, for a number of reasons, this did not constitute special circumstances.
I do not propose to discuss this matter at any length. In my opinion some basis has been shown to support a finding that special circumstances exist. However, given the length of the sentence I will be imposing, the non-parole period will in any event be a lengthy one. I propose to extend it, but not by a significant amount.
Extremely moving victim impact statements were given in court by the deceased's two sisters, Lena Katapodis and Evangelia Gallagher. These bear testimony to the good hearted and loving nature of the deceased, and the devastating effect of his untimely death upon his family. On behalf of the Court I convey my sincerest condolences to them and to the other family members whose lives have been changed for ever by this event. No sentence that this Court can impose can adequately reflect the extent of their loss, and I hope that they understand that many other considerations must be taken into account in setting the sentence for this offence.
I take those statements into account in the manner set out in R v Previtera (1997) 94 A Crim R 96.
As already mentioned, the maximum sentence for murder is life imprisonment, and the standard non-parole period is 20 years. Since the High Court judgment in Muldrock v The Queen (2011) 244 CLR 120 these have been recognised as legislative guideposts that I am to take into account in the assessment of sentence, together with all the other facts and circumstances pertinent to the offence and the offender.
Section 54B (3) of the Act requires the Court to make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. In the present case, I propose to set a non-parole period which is shorter than the standard one for the following primary reasons: that the offence was a spontaneous one, without any premeditation; and because the subjective factors relevant to the offender, particularly his chronic back pain and the psychological issues arising from it, combine to favour a more lenient approach.
The offender has been in custody, solely in relation to this matter, since 14 September 2011, and his sentence is to be back-dated accordingly.
Jason Hiroki, I formally enter a conviction against you for the murder of Nicholas Katapodis. I sentence you to imprisonment comprising a non-parole period of 17 years with a balance of term of 6 years, making a total sentence of 23 years. The sentence is to date from 14 September 2011 and to expire on 13 September 2034. The earliest date on which you will be eligible for release on parole is 13 September 2028.
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Decision last updated: 05 May 2015