R v Karageorges [2006] VSCA 49

2 The appellant pleaded not guilty to a charge of murdering his wife of 29 years, Tina Karageorges, and was convicted after a trial. The murder occurred on 8 March 2003. The appellant was granted leave by a single judge of this Court to appeal against a sentence of 18 years imprisonment with a non-parole period of 14 years.

3 The circumstances of the murder are set out in the sentencing remarks and there is no need to repeat them in detail. The appellant and his wife Tina were married for 29 years and had 3 children. The two older children were aged 28 and 24 at the time of the murder. The youngest child was 14.

4 The sentencing judge found that the marriage was relatively harmonious and there was no evidence that the appellant was physically violent to his wife. He was, however, jealous of her and on number of occasions wrongly suspected she was unfaithful, despite her denials. The murder was triggered by similar unfounded suspicions.

5 On the night of the murder, the youngest and the oldest children were upstairs in the family home. The appellant and the deceased went upstairs to make love. After they had undressed the appellant's suspicions were aroused by what he believed to be bruising between his wife's legs. He challenged Tina about the bruising. She said that it was a rash, but the appellant did not believe her. The couple then dressed and went to the sewing room downstairs. The appellant persisted with his allegations that the deceased had been unfaithful to him and she continued to deny that this was the case. The appellant told his wife that they could go to the doctor the following day to have the marks on her legs checked, to

ascertain whether they were caused by sexual intercourse, or were a rash as she claimed.

6 The appellant's evidence was that his wife then told him that she had had affairs with other men. Two abortions which she had had early in the marriage, with his knowledge, may have been of pregnancies resulting from those affairs. She also said that the older of their two sons might not be his child. The Crown accepted that the deceased made these statements to the appellant, although in fact she had never had an affair. She made these statements following previous denials of infidelity and as a result of the appellant's persistent refusal to accept that she always been faithful to him.

7 The appellant was shocked and enraged by what his wife said. After a brief interval, when he went outside and had a drink of water, he killed Tina by stabbing her 27 times. As well as stabbing her 4 times in her chest and at least twice in her abdomen, the appellant inflicted 12 stab wounds to her right arm and hand and other wounds to her leg. The pathologist gave evidence that these wounds occurred while she was attempting to defend herself against the appellant's frenzied attack.

8 The appellant told the police and the experts who examined him that he had no memory of stabbing his wife, but woke up next to her on the ground. Expert testimony at the trial was that it is not uncommon for people who kill their partners to block out the memory of the murder. Immediately after the appellant 'woke up' he telephoned 000, told the operator that he thought he had stabbed his wife and requested an ambulance and police attendance. He confessed what he had done to the police.

9 The appellant was granted leave to appeal on the following grounds.

(1) The head term and the non-parole period were manifestly excessive.

(2) The learned judge gave insufficient weight to the appellant's reduced moral culpability as a result of the extreme emotional stress he was under at the time of the killing, because he believed that Tina had been unfaithful to him.

(3) The non-parole period was manifestly excessive having regard to the learned judge's findings as to the circumstances of the offence and the offender.

10 In sentencing the appellant the learned sentencing judge took appropriate account of the extent and severity of the appellant's acts of violence. The appellant inflicted 27 knife wounds on his wife, and continued to strike her while she was on the ground attempting to defend herself. The deceased was murdered in the safety of her home and she suffered terribly in the last moments of her life. The judge referred to the principle of general deterrence and said it was necessary to make it clear that extreme anger could not justify a person being violent to their spouse, let alone lethally stabbing them.

11 As mitigating factors the sentencing judge took account of the following factors:

(a) the killing was unpremeditated and at the time of the killing the appellant was 'in a state of uncontrolled anger' which had been precipitated by what his wife had said in response to his concerns about her infidelity.

(b) the actions were 'out of character' for the appellant

(c) the appellant had no previous convictions and was otherwise 'a person of excellent character'.

(d) the fact that 'within the confines of his 'rigid personality' he was remorseful for what has happened and sought help for his wife immediately after he realised what he had done. He had consistently told the truth to the police.

(e) the effect on the accused of having destroyed his family and home in 'one short episode of rage'.

(f) the fact that the accused had no contact with his children and that when he was released from prison it would be difficult for him to re-build his life.

12 In his written and oral submissions counsel for the appellant did not suggest that the sentencing judge failed to take account of relevant factors in mitigation, or took irrelevant factors into account in assessing the appellant's culpability, but submitted that the sentence was manifestly excessive. It was submitted that in the exercise of his sentencing discretion the judge gave insufficient weight to the extent to which the appellant's culpability was reduced by his extreme emotional stress. This was triggered by the wife's statements indicating she had been unfaithful and that he might not be the father of one of the children.

13 It was submitted that the sentencing judge should have placed greater weight on the fact that the case was different from most 'failed provocation' cases. The sentencing judge had found that the appellant had not previously been violent or abusive and there was no intimidation or domination in the relationship. He had reacted violently on this occasion because his wife had said he might not be the father of one of the children. The partial excuse of provocation only failed because the prosecution had successfully negatived the objective limb of that defence.

14 Mr Croucher drew the Court' s attention to the sentences imposed in R v Leonboyer [2001] VSCA 149; R v Browne [1999] VSC 282 and R v Margach [2006] VSC 77. He also referred to Neal v R [1982] HCA 55; (1982) 149 CLR 305 on the issue of the effect of emotional stress in reducing culpability.

15 The appellant also submitted that the reduced moral culpability of the appellant compelled the imposition of a shorter than usual non-parole period.

16 In passing sentence the sentencing judge took proper account of the extreme violence of the appellant's acts in stabbing his wife and the mother of their three children, in their family home. He gave appropriate weight to other factors relevant to the appellant's culpability and to the principle of general deterrence. The infliction of violence, whether in a domestic setting or otherwise, is unacceptable, and cannot be justified simply because it is triggered by extreme anger.

17 The learned sentencing judge also took account of the victim impact statements which described the effect of the crime on the deceased's sisters and her children, the youngest of whom was deprived of his mother when he was only 14. Although this matter was not explicitly mentioned by the trial judge, the fact that two of the children were present in the house when their father stabbed their mother 27 times, could have been taken into account as an additional aggravating circumstance. The sentencing judge also considered all other mitigating factors, which are mentioned above.

18 It is apparent from his sentencing remarks that the judge considered all relevant facts and sentencing principles. I am unable to detect any error in his approach to these matters. While in one sense the appellant murdered his wife as a result of his extreme emotional stress, this occurred in a context where he had previously questioned his wife's fidelity. She had denied his unfounded allegations on a number of earlier occasions and initially did so on this occasion as well.

19 Nor can any error be detected in the sentence itself, which is well within the range of those which could be imposed in the exercise of a sound discretionary judgment. As this Court has said on many previous occasions, each case must be dealt with by reference to its particular facts, so that comparisons with sentences in other cases with different facts are of very limited value.

20 In relation to Ground 3, the non-parole period fixed by the learned sentencing judge was also clearly appropriate.

21 The appeal should be dismissed.

22 In my opinion the appeal should be dismissed for the reasons stated by Neave, J.A.

23 I agree and do so for the reasons advanced by Neave, J.A.

24 The order of the Court will be that the appeal is dismissed.