R v Likiardopoulos [2008] VSC 387

Supreme Court of Victoria|2008-09-30|Before: LASRY J

CRIMINAL LAW - Sentence - Plea of guilty - Manslaughter - Remorse - Youthful offender - Gravity of the offending.

1 John Likiardopoulos you have pleaded guilty to one count of manslaughter. Your plea of guilty to this count arise out of the killing of Christopher John O'Brien at Noble Park between 1 March 2007 and 8 March 2007. The maximum penalty for the offence of manslaughter is 20 years' imprisonment.

2 The circumstances of the offence, which through your counsel, you have said almost nothing about during the course of submissions, were as follows. The deceased, Christopher O'Brien was 22 years of age at the time of his death in March 2007. He had an intellectual age of approximately 14 years. He had been residing in a Special Care residence in Chandler Road, Noble Park but in October 2006 moved out of those premises and, having met Darren Summers, moved into his premises at 1261 Heatherton Road, Noble Park. Nearby to those premises were the premises at 1288 Heatherton Road, Noble Park, where you and other members of your family lived. That included your father, Dimitrios Likiardopoulos, who is charged with the murder of Christopher O'Brien and will stand trial in February 2009, and Hakan Aydin, who has also pleaded guilty to the manslaughter of Christopher O'Brien and who I will sentence later today.

3 It appears that illegal drugs were regularly and freely available at this address and in that connection from time to time a number of people went to the premises presumably to purchase drugs.

4 The circumstances leading to the death of Christopher O'Brien began in early 2007 when Darren Summers, who has pleaded guilty to being an accessory to manslaughter in respect of the killing of O'Brien, had alleged that O'Brien had removed a silver coloured bracelet belonging to his girlfriend from the house at 1261 Heatherton Road. Challenged about the theft, the bracelet reappeared but Summers conveyed the information about the alleged theft by O'Brien to your family.

5 Some time later a friend of your family, Con Nearhos, complained that his mobile phone had either been lost or stolen at the premises at 1288 Heatherton Road. The initial suspect for that theft so far as your family was concerned was Shalendra Singh. Singh was a regular visitor to the premises for the purpose of using drugs.

6 Upon it being concluded that Singh was a suspect for the theft of the mobile phone it is sufficient to note that he was made to sit in a chair in the dining/lounge room area of the house where he was verbally and physically abused by persons in that household. The physical assaults on him included being struck with fists, kicked, made to do humiliating acts, burnt with cigarettes and having methylated spirits wiped on his injuries. This so-called punishment took place over a two-day period. Ultimately, Singh persuaded other members of the Likiardopoulos household that he was not the thief of the mobile phone and that in fact Christopher O'Brien, the deceased, was the person who had stolen it. The allegation of theft of the bracelet to which I have earlier referred added some corroboration for this allegation.

7 In the early part of March, Christopher O'Brien was asked to attend at the Likiardopoulos house at 1288 Heatherton Road. Once he was there he was also subjected to most serious assaults over a two-day period which ultimately caused his death. The extended viciousness and cruelty of this attack on Christopher O'Brien almost defies belief. In addition to the physical assaults, he was spat on and verbally abused. The assaults included punching to the head and face and kicking to the body. Ashtrays and sticks were also apparently used to assault the deceased and the assaults were carried out by a number of people. Included in that number you're your father, Dimitrios Likiardopoulos, Hakan Aydin and yourself. You took your turn in assaulting Christopher O'Brien and on the evidence on which the Crown case is based, and which you do not appear to dispute, you did so with a hammer along his spine, neck, elbows and ankles. You obtained toxic substances from under the kitchen sink which the deceased was forced to drink and you also forced him to eat chilli flakes. As though this was some form of entertainment, the attack on Christopher O'Brien was punctuated with drug taking and sleeping by those taking part.

8 The forensic anthropology report on the remains of the deceased revealed large number of skeletal defects which included a large number of fractures to the left and right scapula, a number of vertebrae and a number of ribs. Whilst some of the defects observed may have occurred after death the evidence suggests traumatic injury to the lumbar vertebrae.

9 In the early hours of 7 or 8 March 2007 it became apparent that the deceased was in a serious medical condition. He died whilst in the lounge room area of the house, despite efforts by others present to revive him through the use of cardiopulmonary resuscitation.

10 The evidence indicates that your father Dimitrios Likiardopoulos took charge of the situation and presented a firearm which was pointed at everyone in the house saying that he would "never go back to prison for this fucking dog" and "I'll kill anyone who fucking talks". He supplied a red sleeping bag from within the house and ordered you and Hakan Aydin to take the deceased in a car and bury his body in the Dandenong Mountains. A car was borrowed and the mission commenced. You were unable to find an appropriate location as you drove around with the body of the deceased in the car and ultimately you discarded the body of the deceased and threw it into the Dandenong Creek off Pillars Road, Bangholme.

11 Back at the premises at 1288 Heatherton Road, those present were directed by Dimitrios Likiardopoulos to clean the house to rid it of any forensic evidence of the assault and killing of the deceased. No person was permitted to leave the premises and Dimitrios Likiardopoulos made it clear to everyone that he was in charge and his approval would be required before anybody could leave.

12 The skeletal remains of the deceased were found in the Dandenong Creek wrapped in the red sleeping bag on 14 August 2007.

13 You were arrested and interviewed by police on 12 August 2007 and you chose not to answer the questions put to you, exercising your right to make no comment.

14 A number of victim impact statements were read to the Court by the Senior Crown prosecutor. They included statements from Christopher O'Brien's Aunt, Carmel O'Brien; Alicia Bateman; his brothers Scott O'Brien, Shannon O'Brien, Lucas Adams and Wayne O'Brien. Finally, his mother Beverley O'Brien also filed a statement. The documents tell a harrowing tale of trauma and loss and an inability to comprehend why such an attack happened in the first place. I have taken them into account in determining the sentence I should impose on you.

15 The evidence suggests that the person who oversaw this offending and who controlled the attempts to conceal it was your father, Dimitrios Likiardopoulos. However, beyond the issue of that relationship, this form of manslaughter is, in my opinion, in the worst category and you played a significant role in the cause of Christopher O'Brien's death.

16 As I have said on a previous occasion when sentencing Shalendra Singh, your brother Constantine Likiardopoulos and Darren Summers, the extended viciousness of this attack on an entirely defenceless young man defies belief. This went on for two days and the conduct was disgusting. If the answer to the obvious question "why?" is drugs, then this case is once again a stark reminder to the community that the use, abuse and consequences of the consumption of drugs like amphetamine and "ice" is out of control to a considerable level and a way must be found to develop some solution to the problem. Extreme violence following drug-taking of this kind is a phenomenon the community surely finds repulsive and it has become a matter of urgent social policy. It is far too prevalent.

17 The primary motive for this offence appears to be the attraction of extreme and gratuitous violence. It is hard to imagine that an allegation of minor theft against Christopher O'Brien could have played any real part in the decision to engage in the violent activities that caused his death. The disregard you showed for his welfare and his life means that a severe and fitting punishment must be imposed on you.

18 Your plea of guilty was offered at the committal proceedings. At that time you were charged with murder. You are entitled to have a lesser sentence imposed on you by reason of that plea and, as appears below, under the Sentencing Act 1991 (Vic), I am required to identify any reduction that I make as a result of that plea which I will. I accept, as your counsel submitted, that your plea has significant utilitarian value in that a potentially lengthy and complex trial has at least been partially avoided. I do not consider that remorse was the predominant or significant reason for your plea. However, in view of material more recently received, I am persuaded it represents a level of remorse and the discount I have identified is more significant for that reason.

19 You are now aged 21 and at the time of the offence you were 19 years of age. You have prior convictions from the Children's Court which are not significant for these purposes.

20 Your parents' marriage broke up when you were 14 years old and you have been residing with your father, Dimitrios Likiardopoulos, since then. Clearly, he has been a very bad influence in your life. Your education in Victoria did not proceed beyond Year 9 level. You then went to Adelaide to reside with your father where you completed Year 9 and, as Mr Jackson put it on your behalf, a portion of Year 10. A later report from Mr Ian Joblin, forensic psychologist, indicates that you in fact completed Year 10.

21 Your employment history so far is intermittent and you have had little in the way of formal employment.

22 Your counsel has informed me that you have "tried" drugs but as he also noted and as the evidence makes clear, drug use was prevalent in your father's house.

23 The evidence does suggest that you have support of other members of your family and I was told that upon your release they will be available to support you. I was provided with a number of references from people who have known you over your life. That is supported by a letter which I received this morning signed by your grandparents dated 15 September 2008. That letter demonstrates the trauma which has afflicted your family as a result of these events and, to their credit, shows their continuing loyalty to you.

24 During the course of submissions I ordered a pre-sentence report pursuant to s 96 of the Sentencing Act 1991 (Vic). That report was provided by Mr Ian Joblin. Mr Joblin refers to your family history and education as your counsel has done. He identifies drugs, particularly cannabis and later "ice", as an issue for you. You apparently informed Mr Joblin that you had been prescribed medication for sleeping whilst you have been in custody. In what you told Mr Joblin, you place the responsibility for your consumption of "ice" and your involvement in these offences on Hakan Aydin. Mr Joblin expresses the opinion that you have no diagnosable psychological condition or conditions. He describes you as someone with a good intellect and observed what he considered were signs of remorse in the way in which you presented to him. Otherwise, there is no clinical or psychological explanation for this appalling conduct.

25 The three main mitigatory circumstances which arise from the evidentiary material before me are your youth, your plea of guilty, and the fact that your activities whilst in custody suggest there are some prospects for rehabilitation. As to the first of those, it seems to me that the significance of your youth is considerably affected by the gravity of your offending,[1] and I will deal separately with that issue shortly. I have already referred to your plea of guilty and concluded that whilst you are entitled to a discount on your sentence as a result of it, it did not appear to me that remorse was a predominant reason for your decision to enter that plea. However, as I have just described, Mr Joblin considered that aspects of your presentation indicated remorse for what you had done. With some hesitation I have given you what I consider to be a significant discount for your plea of guilty both as to the head sentence and the non-parole period.

26 Of course it is relevant that at the time of this offending you were 19 years of age and thus a youthful offender. Normally considerable significance is accorded to that fact but this is one of those occasions when it must, to some extent, "... give way to the achievement of other objectives of the sentencing law".[2] Whilst consideration, indeed special regard, is allocated to youthful offenders, the nature of the conduct of the offender and the crime committed are of greater importance.[3] However, I have not dismissed your youth as a consideration. This, though, is an offence where general deterrence must be emphasised and whilst I have taken account of your youth, I consider that given the nature of your conduct the sentence cannot be significantly reduced because of it.

27 I have received a number of written character references concerning you. They suggest that violence was not part of your character as a child but confirm to some extent that you were under pressure in your early years. Several refer to the tension in your family when your parents' marriage came to an end. A teacher from Thornbury-Darebin Secondary College who coached you as a rugby player speaks highly of your personal qualities and your ability for self discipline. Your mother's letter tells a sad story and underlines the family difficulties you had to encounter.

28 The description of you in these documents is totally at odds with the conduct you have engaged in, in this case.

29 You have been in custody since 12 August 2007, this being mainly at the Metropolitan Remand Centre. I am told that you have completed a number of courses, and certificates in relation to those courses were produced during the plea on your behalf. The documents show that you have completed courses in mood management, problem solving, conflict management, communication skills, and staying safe in the community. In addition you are certified as competent in hospitality (kitchen operations) and asset maintenance (cleaning operations). These latter courses are aimed at obtaining a red card to work in the building and construction industry.

30 Mr Jackson submitted that this demonstrates a willingness by you to avoid wasting such opportunities as there are in custody, and to try to improve your circumstances and qualifications. I agree with that submission.

31 You have five convictions from three court appearances between 2000 and 2006. None of those matters were for violent conduct, nor did any of them result in prison sentences. The offences were for burglary and theft and also for possession of amphetamine and cannabis. On your behalf, Mr Jackson submitted that these matters were not of "great moment" in sentencing you and I agree with that.

32 As I observed in the course of submissions, I have struggled to think of a worse case of manslaughter. Your conduct over the extended two-day period was nothing short of cowardly, disgusting and brutal. As I have already said, but for your plea of guilty and the other matters in your favour to which I have referred, I would have imposed a significantly heavier sentence for this conduct leading as it did to the death of an innocent person.

33 For the crime of manslaughter you are sentenced to be imprisoned for 12 years. I fix a period of 9 years to be served before you are eligible for release on parole.

Sentencing Act 1991 (Vic) s 6AAA

1"> 34 Section 6AAA of the Sentencing Act 1991 (Vic) which came into force on 1 July 2008 provides that if a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence, the court must state the sentence and non-parole period if any that it would have imposed but for the plea of guilty. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state that but for your plea of guilty I would have sentenced you to 15 years' imprisonment and imposed a period of 12 years before being eligible for release on parole.

35 I declare that your pre-sentence detention is 416 days, including this day.

[1] See, eg, R v Hatfield [2004] VSCA 195 at [11] (per Chernov JA).

[2] DPP v SJK & GAS [2002] VSCA 131 (per Vincent JA).

[3] R v Talj [2003] VSCA 87 (per Warren AJA, as she then was).

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