R v Likiardopoulos [2009] VSC 217

3 Christopher O'Brien was 22. He had an intellectual age of a 14 year old. He rented a room at Darren Somers' house across the road at 1261 Heatherton Road. The State Trustees managed his affairs. They paid his rent to Darren Somers and paid him a modest allowance every few days.

4 Shalandra Singh, a 24 year old man used to visit your house to use marijuana. At some time in February/March 2007 he was suspected of having stolen a mobile phone from one of your associates. He was summoned to the house and at your direction, interrogated about the phone and subjected to a sustained and violent assault. Mr Singh denied all knowledge of the phone and ultimately, this proved to be the case and it seems in recompense for the assault upon him, Mr Singh was invited to live in your house under your protection for $100 per week.

5 Darren Somers was also a regular visitor to your house and there was some suggestion that Christopher O'Brien was responsible for a necklace belonging to Somers' girlfriend having gone missing, and in that way, suspicion in regard to the mobile phone then fell on Christopher O'Brien. He was summoned to the house either on the pretext of fixing a computer or at the invitation of Shalandra Singh, acting under your instructions. However he came to be at the house, he went there uninjured and did not leave alive.

6 During the time Christopher O'Brien was at the house he was subjected to a brutal, callous and merciless assault which culminated in his death. The assault began in the afternoon he went to the house and continued on the evidence of Haykin Aydin into the second night, and on the evidence of Shalandra Singh, into the third day. No one witness was present throughout the entire period and it indeed appears from the evidence that at one point you were asleep and at another time, you were away from the house. However a number of people did visit the house while Christopher O'Brien was there and being assaulted.

7 Daniella Vasilinovic was one. She said that the assault began when Christopher O'Brien looked at her in a way that aroused Haykin Aydin's jealousy, and that you were not present at that time. She also gave evidence of an assault that she observed when Christopher O'Brien was walked into the kitchen and fell at her feet unconscious. She described it as follows:

"They were slapping him to get him up and when he sat up, Jimmy hit him."

Q: "How did he hit him?"

A: "Punched him in the face."

Q: "What did Jimmy do?"

A: "Hit him."

Q: "How did he hit him?"

A: "With a fist in his mouth."

Q: "Did it have an effect on Chris?"

A: "He started bleeding from the mouth."

Q: "Did you see any kicking?"

A: "There was like, hitting and kicking. It was basically Johnny, Jimmy and Haykin. They were like all together. I didn't know who did what first "(T.444)

And at another point in her evidence she describes the kicks as "decent"(T.463). Haykin Aydin and Shalandra Singh, although they each gave a different account as to how the assault began, each said the genesis of it was the allegation of the stolen telephone. Haykin Aydin nominated Shalandra Singh as initially assaulting Christopher O'Brien by hitting, punching and in his words "smacking him around", and at that time you were encouraging and exhorting Singh to do so. Haykin Aydin admitted to punching Christopher O'Brien five or six times, slapping him and kicking him twice. Apart from being involved in humiliating Christopher O'Brien, Shalandra Singh denied assaulting him and nominated Haykin Aydin and your son John, as the principal assailants. Although no doubt Haykin Aydin and Shalandra Singh were each trying to minimise their respective roles, as conceded by the Crown before the jury, they each nonetheless described the two king hits that you administered to Christopher O'Brien causing on each occasion, a tooth to come flying out of his mouth, and they both gave evidence of your presence, encouraging, exhorting and urging on the assault of Christopher O'Brien in the most derogatory terms, although it is not suggested that you were there for all of it.

8 Dimitrios Margoulis gave evidence that he went to the house in the morning and saw Christopher O'Brien being punished. He looked injured, bruised and had a fat lip. He returned to the house on another day and saw Christopher tied with shoelaces and John Likiardopoulos hitting him with a hammer and both John Likiardopoulos and Haykin Aydin abusing him. At one point on the same day he saw Haykin Aydin and John Likiardopoulos walk Christopher O'Brien out of the bathroom and seat him on a couch and he said he then left at that point. He did, however, admit to grabbing Christopher O'Brien by the ear and yelling at him. He did not attribute any actions to you, other than to say that you were in and out of the room while Christopher was there. In my view there was much force in the Crown's submission to the jury that Mr Margoulis was trying to minimise your involvement.

9 Paul Gavigan also visited the house. He denied assaulting Christopher O'Brien but was present when Haykin Aydin delivered a round-house kick to his head and John Likiardopoulos attacked him with a claw hammer. He also saw Christopher O'Brien fall to the ground and you ordered him to get up and get into the bathroom, saying you would deal with him later. You laughed about having knocked out a tooth and Gavigan implored you to let O'Brien go: "You're going to kill this kid, mate". Mr Gavigan described Christopher O'Brien's appearance at this stage as follows:

"All his teeth were knocked out. He had a laceration from his neck here right through to his chin. He was just bruised all down his leg. His face was out, his eyes were dilated that bad, you could see what was coming." (Page 365).

10 So it is that the evidence reveals that Christopher O'Brien was brutally assaulted. He was made to sit on a chair in the kitchen and there was evidence from Mr Singh that at some stage he was tied to it. He was struck with fists, a claw hammer, an ashtray, kicked, made to drink detergent and eat chilli flakes and subjected to humiliating and degrading acts. Christopher O'Brien endured these physical assaults and indignities over many hours in circumstances which must have been terrifying. The assaults abated when his attackers stopped so that they could take drugs and when he was taken to the bathroom to be showered and cleaned up. Haykin Aydin said that he and John Likiardopoulos did this at least twice. Towards the end of this sustained assault, Christopher O'Brien lost control of his bowels and you directed him to be taken to the bathroom to be cleaned up. When he returned he could not walk unaided and he was placed on a chair but unable to sit upright, slid to the floor and commenced convulsing. A pulse could not be detected and attempts at CPR proved unsuccessful. Christopher O'Brien was dead. Panic and pandemonium broke out and your son's girlfriend, Antoinette suggested calling an ambulance but you were adamant that this was not to be done. Instead, you ordered that Christopher O'Brien's body be buried in the Dandenongs. To this end he was put in a sleeping bag which was placed in the boot of a car driven by Haykin Aydin who, together with your son John, drove to the Dandenongs looking for a suitable site. None was found and Haykin Aydin, recalling a fishing spot known to him as a child, disposed of the body by throwing it into a creek at Bangholme. On returning to the house they told you that they had buried the body. You then ordered a thorough clean up of the house which was done at your direction twice, and you seized everybody's mobile phones, putting them in a briefcase which was later found by the police at an associate's house.

11 On 14 August 2007, Haykin Aydin took the police to where he had dumped Christopher O'Brien's body. The skeletal remains were located but a pathologist was unable to establish a cause of death because of the depredation of the body. The pathologist noted that there were fractures to the nasal bone, the first, second, third, fourth lumbar vertebrae, fractures to two ribs and both scapuli. A forensic anthropologist confirmed that two teeth were missing and the body had perimortem fractures, that is, fractures which occurred around the time of death.

12 The Crown case is that you were acting in pursuit of a joint criminal enterprise to assault Christopher O'Brien with the intention of causing him really serious injury, and by your actions, you were counselling and procuring the other assailants in their attack on Christopher O'Brien in that you encouraged and exhorted the other participants to do what they did, and that Mr O'Brien died as a result of the culmination of what was done to him and that you also participated in the assault. At your trial, through your counsel, you did not challenge the dynamics of the household and your position in it and it was put that various witnesses were minimising their roles, if not denying them, and exaggerating yours, and your counsel invited the jury to return a verdict of guilty to accessory to manslaughter which the jury clearly rejected.

13 Your counsel, Mr Papas has submitted that what happened to Christopher O'Brien should be looked at in the context of heavy drug use and the involvement of other persons present that were, in his words "behaving not just as automatic functionaries of the prisoner" (plea T118), but he conceded that you were the older man, it was your household and you exercised control. In these circumstances, Mr Pappas submitted that this offence was to be categorised "as a serious killing but not necessarily at the top of the range".

14 The Crown submitted that because of the sustained nature of the assault, amounting to torture on a defenceless, vulnerable man, albeit done with the intention of causing really serious injury, this murder is to be placed in the worst category of offences of this kind.

15 Your co-offenders in this matter have been dealt with as follows: Your son, John Likiardopoulos, was sentenced in respect of manslaughter to 12 years with a non-parole period of 9 years. Your other son, Con Likiardopoulos, was sentenced in respect of accessory to manslaughter to 18 months' detention in a youth training centre. Shalandra Singh was sentenced in respect of accessory to manslaughter and was imprisoned to 27 months with a non-parole period of 14 months. Darren Somers was sentenced in respect of accessory to manslaughter to 30 months' imprisonment with a non-parole period of 18 months, and Haykin Aydin was sentenced in respect of manslaughter to 6 years' imprisonment with a non-parole period of 3 years and 6 months. All of your co-offenders pleaded guilty. Shalandra Singh and Darren Somers were sentenced on the basis of statements made to the police intended to divert the investigation, and also in the case of Con Likiardopoulos, their involvement in cleaning up the house. John Likiardopoulos was sentenced on the basis of physically assaulting Christopher O'Brien with a hammer and forcing him to drink the detergent and eat the chilli flakes. Haykin Aydin was sentenced on the basis of his physical assaults on Christopher O'Brien and it is noted that he received a significant discount because of his cooperation with the authorities and his preparedness to give evidence in the trial against you.

16 Consistently with the way the matter was put to the jury by the Crown, I proceed on the basis that the genesis of the assault was the theft of the mobile phone and that you were the instigator of the assaults, a participant in it and you counselled and procured the others to really seriously injure Christopher O'Brien. It has never been put that your physical actions were the totality of the assault on Christopher O'Brien and indeed they were not. I accept that your actions involved the two king hits to Christopher O'Brien's mouth and a third punch to the mouth causing bleeding and kicking him, as attested by Daniella Vasilinovic, Haykin Aydin and Shalandra Singh. It is apparent that at least the incident with the detergent recorded on the mobile phone occurred in your absence, either because you were asleep or away from the house because you showed the image to Haykin Aydin and complained to him that he had left your son with Christopher O'Brien. But the evidence is clear that the assaults continued after that and according to Singh, Aydin, Gavigan and Vasilinovic, assaults took place when you were present. The evidence as to the dynamics of the household is all one way; you were the dominant personality, a domineering figure, "the head honch, the boss of the house" as Mr Gavigan described it (p 359), and this is consistent with the evidence concerning your involvement in the assault. A physical participant to a limited degree, but otherwise the controlling and dominant force in the dynamics of what occurred; interrogating Christopher O'Brien aggressively, urging and exhorting others to beat him with the intention that he be really seriously injured, addressing him in the most derogatory terms, and directing what the others did with him, and to him and assaulting him yourself with the intention that he be really seriously injured.

17 It is in these circumstances that Christopher O'Brien, intellectually disabled, vulnerable, outnumbered, defenceless and helpless, humiliated, subjected to indignities, brutally assaulted and cruelly treated, over an extended period of time, met his death in circumstances totally devoid of any humanity, compassion or moral compass. It is these circumstances which make this a very bad case of murder, even though the Crown do not, and have never alleged that, at the time you assaulted Christopher O'Brien, you intended to kill him.

18 You are 49 years old and have admitted 16 prior matters and convictions from five Court appearances. On 2 June 2006, you were sentenced to a total effective sentence of 12 months' imprisonment in respect of being a prohibited person in possession of an unregistered firearm and possession of a drug of dependence, and 9 summary offences, 248 days of that sentence was suspended for 18 months. Hence, you were on a suspended sentence when you committed this offence. Otherwise, your prior criminal history, apart from a conviction for common assault, does not involve any offences of violence and in my view have limited application to the sentencing discretion in this case.

19 A pre-sentence report by Dr Anthony Cidoni, consultant psychiatrist at Forensicare, was obtained by the Court and tendered in evidence as Exhibit "H". Tendered on your behalf were two reports from Miss Carla Lechner dated 20 March 2006 and 13 April 2009, Exhibits "1" and "4" respectively, and the report of Dr Adam Deacon, Consultant Psychiatrist with Forensicare dated 5 April 2006, Exhibit "2" and your medical history, Exhibit "3".

20 These various reports detail your personal history and antecedents which I accept. You were born and raised in South Australia. Your family life was unhappy, marked as it was by your father's physical abuse. You have had a very limited education, having left school in Year 8 at the age of 15. You worked in a number of unskilled positions and came to Melbourne at the age of 18 and worked at Dunlop Tyres for 12 months. Over the years, you have moved between Victoria and South Australia and you have worked at various jobs. It is said that you last worked 9 years ago. Otherwise, you are in receipt of a disability pension. You married, a marriage which lasted 20 years and produced three sons, two of whom are your co-offenders. You have a daughter aged nine by another relationship which has now also ended. Ms Lechner assessed you as being in the low average/borderline range of verbal intelligence, with approximately 91% of the adult population performing better. You are, in her view, a concrete and utilitarian thinker with a tendency to interpret the world around you in an egocentric subjective manner. You gave a history of suicidal ideation and attempts from an early age and episodic depression. You reported to Ms Lechner in April 2009 that you were a regular user of marijuana since the age of 27 and that before you were remanded in respect of this offence, you were using about three grams of marijuana a day, although you reported to Dr Cidoni that you were using up to five grams per day before being incarcerated. You also reported using amphetamines and heroin intermittently.

21 Ms Lechner opined that you presented with symptoms consistent with a diagnosis of clinical depression and that you have features of a borderline personality disorder. Dr Cidoni concluded that you presented with a history consistent with a depressive disorder best described as a dysthymic disorder with co-morbid anxiety which fits the pattern of generalised anxiety disorder. You have, in his opinion, what could be described as borderline personality traits such as impulsivity, mood instability and anger, related, he said, to your history of child abuse, and you have a history of poly substance abuse. Both Dr Cidoni and Ms Lechner reported that you are at risk of suicide and that your anti-depressant medication should be re-established.

22 Mr Pappas relied upon the earlier reports of Ms Lechner and Dr Deacon and the notation in your general practitioner's records that you consulted him on 7 March 2007 which is around the time of the assaults, if not the day, and he had recorded "query depression" to found a submission that the principles of Verdins and Tsiaras are here applicable.

23 Ms Lechner had in 2006 opined that you presented with a dual diagnosis of clinical depression and marijuana dependency, that you used marijuana to self-medicate and that from a clinical perspective, you required psychiatric review and management. Dr Deacon reported in 2006 that you appeared moderately to severely depressed and that you required ongoing psychiatric review. As I understand Mr Papas' submission, this was therefore evidence that you were depressed in 2006, you have again been assessed as depressed in 2009; it was queried whether you were depressed in 2007 and you have not been psychiatrically reviewed as recommended and thus I could not exclude that you were depressed at the time of the offence, and that the depression, together with your concrete thinking, has contributed to the commission of the offence and in that way your moral culpability is reduced and considerations of general and specific deterrence should be given less weight.

24 However, Dr Cidoni, who had the benefit of the report of Ms Lechner, and the report of the psychiatrist, Dr Deacon, and your medical history as recorded by your general practitioner and most recently had the benefit of interviewing you, did not diagnose you as suffering from a psychiatric illness or a psychological condition, and made no connection between your mental state and your offending conduct. Indeed, you reported to Dr Cidoni, as you did also to Ms Lechner, that you had not been involved in the commission of this offence and you told Dr Cidoni that you felt set up by the police. You told Ms Lechner that, although present at the time of the offence, you did not assault Christopher O'Brien, and that Haykin Aydin was the person responsible for Mr O'Brien's death, and that you felt powerless to intervene because you were scared of Haykin Aydin, a proposition which was not put to him. Ms Lechner, in her report of 13 April 2009, opined that you have a long-standing drug dependency problem that no doubt further aggravates your mood disorder, both factors impairing your judgment and reasoning skills, and that at the time of the offence you were unoccupied, using a substantial amount of marijuana and living in a house frequented by young drug users. It seems to me in these circumstances that the highest it can be put is that you may have been depressed at the time of the offence and that you were using a substantial amount of marijuana and that that may have impaired your judgment. But otherwise, in these circumstances, where it is not said that there is any psychiatric or psychological illness diagnosed such as to amount to an impaired mental functioning, and no causal connection is established between a mental disorder and the offence and indeed where you do not admit your involvement in the offence, in my view the principles of Verdins and Tsiaras do not apply to reduce your moral culpability or impact upon the considerations of general and specific deterrence.

25 But I do take into account in the exercise of the sentencing discretion that you have been diagnosed as suffering depression and anxiety and that, according to Ms Lechner and Dr Cidoni, you do require psychiatric review to stabilise your mood and that you are at risk of suicide.

26 The most recent report of Ms Lechner and the report of Dr Cidoni highlight another aspect of your presentation, and that is, because you maintained that you were not involved in the assaults, you have not expressed any remorse, although Ms Lechner noted you expressed sympathy and empathy for the victim and antipathy for the way in which he died stating "He was an innocent kid who wouldn't hurt a fly". There is no doubt that he was, but your present empathy and sympathy were totally absent when Christopher O'Brien was being brutally assaulted by you and the others, and your sentiments, in my view, are totally inconsistent with the sworn evidence in this case.

27 The maximum penalty for the crime of murder is life imprisonment. In sentencing you I take into account the nature and gravity of the offence here committed and your role in it which I have previously addressed. Although the lesser intention of causing really serious injury resulting in death was alleged by the Crown and I proceed to sentence you on that basis, nonetheless the circumstances in which Christopher O'Brien met his death make this a serious example of the most serious of offences. This was a brutal, callous, merciless beating and assault culminating in death, which occurred over a protracted period of time, perpetrated on a totally innocent, vulnerable and defenceless intellectually disabled young man in circumstances which must have been terrifying and frightening for him and where no humanity, decency or compassion was shown to him. The wanton disregard shown to Christopher O'Brien by ordering the disposal of his body, which conduct I take you to have admitted by reason of your counsel's invitation to the jury to convict you of accessory to manslaughter, is consistent with the cruel way you treated him in the last days of his life and in my view that conduct compounds your culpability as does the fact that you committed this offence during the operational period of a suspended sentence.

28 Victim Impact Statements made by Christopher O'Brien's mother, Beverly O'Brien, his four brothers, Scott, Shannon, Wayne O'Brien and Lucas Adams, his aunt Carmel O'Brien, and cousin Alecia Bateman were tendered in evidence. They each speak of the deep loss of their loved one, the sad consequences to them, the tragedy of his cruel and untimely death and the disposal of his body which consequently deprived them of laying his body to rest. No sentence imposed by this Court can restore to them their loved one.

29 In sentencing you, I take into account your age, and that at the age of 49 you will be serving a substantial period of imprisonment and that you are said to be at risk of suicide in the prison environment. I take into account all matters personal to you; your unhappy earlier life, your limited education, your limited verbal IQ, your depression and anxiety.

30 Any sentence I impose must serve to punish you and act in denunciation of your conduct and signal to other members in the community that such conduct is totally unacceptable in a civilised society and will always be met with stern punishment. Any sentence imposed must also serve to specifically deter you from re-offending and give due weight to your prospects for rehabilitation of which very little has been said in this case and given that you have not admitted your responsibility for the death of Christopher O'Brien and have shown no remorse, such prospects must be said to be qualified.

31 In sentencing you I take into account also the sentences imposed upon your co-offenders, in particular your son, John Likiardopoulos, and Haykin Aydin, although they both pleaded guilty to manslaughter, and in the case of Haykin Aydin he received a substantial discount for his considerable cooperation, features which are here absent.

32 Accordingly, for the crime of murder you are convicted and sentenced to 20 years' imprisonment.

33 And I order that you serve a non-parole period of 17 years and I declare that you have already served by way of pre-sentence detention a period of 643 days.

34 You have been serving the restored balance of the suspended sentence since 7 May 2009 and having regard to the substantial sentence of imprisonment I have imposed upon you, and also having due regard to the principles of totality and so as not to impose a sentence which is crushing. I do not propose to order any cumulation of this sentence upon the sentence you are presently undergoing and so by operation of law this sentence will run concurrently with the sentence you are currently undergoing.