R v Simpas & HR [2008] VSC 222

3 Kristofer Simpas, you have three prior court appearances, the first in April 2004 on charges of being an unlicensed driver and theft of a motor vehicle for which you were placed on a non-conviction $50 good behaviour bond. October of 2004, of entering a private place without excuse for which you were fined $100 and January 2006, driving without P plates and speeding, placed on a good behaviour bond for 12 months. Whilst they are not serious offending in any way, they do indicate that you had been involved in minor trouble with the police for a short time.

4 I am exceedingly sorry to all parties for the delay in this matter, but despite receiving the pre-sentence reports in a timely manner, the report from Ms Northey, a consultant psychologist, was not received until June of this year despite many attempts to obtain that report.

5 The circumstances of your offending were set out by the Crown in a lengthy opening and I will not repeat all of that opening here. But, in summary, these events took place on 24 March 2006 and into the early morning of the next morning. It occurred outside the Casino, above Galactic Circus, near the corner of Whiteman and Clarendon Streets in Southbank.

6 The deceased man was a 20 year old man who, with a small number of friends, went to the area in the park at Clarendon Street. They intended to meet with some international visitors Mr Chol and the deceased and Mr Spinks all attended there. They were in a car and Chol was the dedicated driver. Mr Tubasiman, Mr Schrader and a man called Mr Pass were the international visitors. They were assembled outside the parked car in Clarendon Street drinking Cougars and other drinks but certainly not causing any trouble. It was at this point that you, HR, are first seen. You are on Clarendon Street with a group of very young people. People aged from their low teens to their high teens. You wanted a can of alcohol that Mr Spinks had and an exchange took place. You slapped and pushed Mr Spinks and he pushed and slapped you back. Mr Spinks was a large man, about six foot four. The police attended and moved people on and the incident did not actually progress very far. Mr Chol and the deceased, Mr Morgan, went to Whiteman Street on the way to a club. There was a delay with the rest of the group because they had gone to a toilet stop at McDonald's in the opposite direction.

7 Mr Chol and Mr Morgan were walking ahead of the rest of the group and there was a discussion with some young people sitting just near the exit to the park. That was all about how no one wanted to fight but they were telling Mr Morgan and Mr Chol to calm Mr Spinks down. You HR were being aggressive and saying, "Do you want to fight" and you were encouraging others; encouraging them to come closer. There was pushing and shoving, punching and Mr Spinks came back into the park and ran towards the group. That caused the young people associated with you to run back away from Mr Morgan and Mr Chol. A cap was left there by one of the men; it was picked up by Mr Morgan and he was waving it at your group. Mr Spinks was clearly still agitated. The reason that all of this is known is that it is on the security video compilation taken from the cameras around the area. Most of the activities that night are in fact a matter of record on video.

8 The group of young people then moved back into the park and there is a delay for a short time. It is at that point that you HR, are seen on Whiteman Street. You are encouraging your friends to come and fight these men, saying, "We are many" or in the words of one witness, "There are heaps of us and just three of them." It is you HR who first appears, moving towards this group. You have grabbed a glass bottle and broken it on some bricks outside 47 Whiteman Street. You attacked these men and in a fight with Mr Morgan, he got the better of you. There is no doubt that you had the broken bottle and were going to use it if you could.

9 You were on the ground with Mr Morgan punching you, and it would appear Mr Spinks attempting to attack you whilst you were in that position. It is then Mr Simpas that you come into the affray and you attack Mr Morgan. You hit him in the head area which causes a wound to the cheek, and then punch him to the neck both times with the broken bottle in your hand area. That caused a large incised wound to the neck area and he literally bled to death within a very short time.

10 After the deceased got off the ground near HR, he staggered over a short distance to where Mr Spinks was now also located, and you charged at Mr Spinks, hitting with a roundhouse swing with a bottle, striking him to the side causing him serious injury; the second count to which you have pleaded guilty.

11 After the killing you were both seen by people. You Mr Simpas were in a school nearby and you contacted people by phone who came to see you at the school. You were described as distressed. HR, you were seen outside the aquarium making your way away from the scene, and a friend assisted you by throwing your T-shirt into the river, which was literally covered in blood.

12 You HR, were interviewed on 25 March and maintained you did not use a bottle. You told police that you had finished a bottle of scotch and wanted more and that was why you approached the young men. You told the police that Mr Spinks was the aggressor and slapped you for no reason. You also stated to them that it was Mr Morgan who was the aggressor in the final fight, which is also clearly untrue. You told the police that you had a bottle but you threw it down; that you certainly wanted to get Mr Spinks but not with a bottle.

13 You Mr Simpas, were interviewed on Sunday 26 March and told police that you only pushed Mr Morgan to get him off. You did not mention your possession of the bottle and indeed, stated that Mr Morgan had the broken bottle and had cut you. None of that was in fact true. This was a disgraceful episode; a very clear example of mob rule fuelled by alcohol and aggression.

14 The three men sitting on the fence in Clarendon Street of whom the deceased was one, were doing nothing wrong. You HR approached and demanded their alcohol. You then became aggressive when you were told that they would not give it to you. Whilst it is Mr Simpas who struck the blows that killed Morgan Morgan, do not for one minute think that you are not just as, if not more, responsible than him, for the death of this innocent man.

15 Mr Simpas, while you may initially have believed that you were only going to help HR, your actions in taking with you and using a broken bottle, for the purpose of hurting a person, are equally reprehensible. This young man Morgan Morgan, came to this country to escape violence and hatred and you have caused his absolutely senseless and untimely death. You need to think about this young man for the rest of your life. Every time that you are tempted to become involved in alcohol or hanging out in the streets with too many other young people, remember this and remember where it leads; to the totally senseless loss of another young life.

16 Why all of you people were hanging around the Casino area and drinking to excess is not really something that is capable of being understood. Some of the members of your group were as young as 12 years of age and there were many aged 14 to 16. One has to ask, "Where are their parents, where do they believe their children are at that time, the time of these events occurring in the small hours of the morning outside the Casino?" It is a reflection on our society and not a positive reflection that so many young people can be out on the streets of Melbourne intoxicated, without their parents having any knowledge of their whereabouts. If there had been more knowledge and more supervision, peHRaps these tragic events would not have occurred.

17 In respect of Mr Morgan's family and friends, I can only say to them that this is a terrible waste of your much loved family member and friend. The sentence I impose will do nothing to alleviate that pain and it would not matter what sentence I passed; that would not change. The sentence that I impose I assure you, is not a reflection of the value of Morgan Morgan's life.

18 His life, like every life in this country, is invaluable. It is not measured in terms of the sentence imposed. The sentence reflects the circumstances and the law that I have to take into account when making the determination. I hope that with time your pain will ease but I understand it is exceedingly difficult to imagine that at this stage.

19 You have both been held in custody since you were charged with these offences. You have each pleaded guilty to the offences and in respect of Mr Simpas, I note that he offered to plead guilty to the offence of manslaughter at an early stage. In respect of HR, while the plea was not offered at such an early stage, there were quite complex areas of law that needed to be determined.

20 But in respect of both of you, I do accept that you are remorseful and that your pleas are also an indication of that remorse. You are entitled to, by law, and will receive a substantial discount for the entries of those pleas of guilty.

21 I also have to take into account your personal circumstances. Dealing firstly with you, Kristofer Simpas, you are now aged 21 and were aged 19 years and two months at the time of the commission of these offences. Your parents were both migrants, your father being born in Greece and your mother in Egypt. You have a younger sister.

22 You attended school at Bell Street Primary and then went to Alphington Grammar but you had to leave as your parents were unable to afford the fees. From there you went to Northcote High School. At the end of Year 11 you left and obtained an apprenticeship as a motor mechanic. It was noted in your pre-sentence report that you had been expelled from school three times for fighting.

23 As indicated, you have commenced an apprenticeship and your employer is supportive of you and is willing to have you recommence that apprenticeship when you are released from custody.

24 You are described as coming from a dysfunctional family as your parents often argued and there was violence between them. You would spend time at your grandparents who lived nearby when this was occurring. Your father who worked in a Greek restaurant as a chef had a serious alcohol problem and would arrive home alcohol affected and the arguments would then commence.

25 Your father left the family home and returned to Greece when you were aged about four. Your mother followed him to Greece and remained there for about a year trying to patch up the relationship and during that time you resided with your grandparents. Your parents did resume their marriage and they remained together until you were aged approximately 15 but it could never have been described as a happy environment.

26 After your father left again, your mother moved in with her parents and you all resided there due to financial constraints. Your mother had not worked during her marriage to your father and living with her parents created significant tensions also as they blamed her for your father leaving, indicating that she could not have been a good wife or a good manager. Whilst your mother tried to obtain employment she was unable to do so due to her lack of work history and ultimately she declared bankruptcy due to her inability to meet her commitments.

27 You had not seen your father from that time as it was a very acrimonious separation and your parents were unable to be civil to each other. Your father arrived at court as your trial was due to commence and that is the first time that you have seen him since your parents' separation.

28 You have informed all of those persons who have been dealing with you that you commenced drinking at the age of 15 and described yourself as a binge drinker. You said you drank to make yourself feel good but certainly tried to hide your drinking from your family which, as Ms Northey the psychologist noted, was not surprising as,

Given his father's reported abuse of alcohol it is understandable that Mr Simpas would feel guilty about his own abuse of alcohol. His family was apparently not aware of his alcohol consumption and this may explain why he has not been consistently upfront about the assumed involvement of alcohol in this offence.[1]

29 Since you have been in custody you have completed what Ms Northey noted as a "useful and relevant range of behaviour modification programs including youth understanding, drugs and anger." She also says that you required professional psychological counselling in order to more fully address the features of what she described as post traumatic stress disorder which she believed was salient in this offence.

30 In your discussions with Ms Northey, she noted that you had the benefit of hindsight now and two years of additional maturity which allowed you to recognise and fully appreciate that there were other choices that you could have and should have made in respect of that night.

31 You told some of the workers who have been assisting you that you had been drinking on that night but you told Ms Northey that you had not. Ms Northey noted in her report,[2]

On the basis of my past experience of interviewing young men in relation to acts of violence of this serious nature, I am inclined to think that the disinhibiting effects of alcohol are most likely to have been a factor and that Mr Simpas was reluctant to tell me he'd been drinking because he felt guilty about that. Given the absence of priors for violent offending, I do not believe that Mr Simpas is sufficiently callous as to have committed the offence in cold blood without the disinhibiting effects of alcohol. He had little realisation immediately after the incident as to the extent of the injury unleashed upon his victim. This is more typical of a person who had been drinking at the time and who was not clearly cognisant of the actual consequences of his action.

32 It is clear that you now have an understanding of the consequences and have exhibited both remorse and empathy for your victim and his family. Whilst that will not necessarily assist his family, it is important that you understand what you have done if you are to refrain from this sort of behaviour in the future. I do accordingly accept that you have good prospects for rehabilitation in the future. You are a youthful offender and rehabilitation must be given due recognition.

33 HR, you have now just turned 20 years of age. At the time of these offences you were aged 17 years and nine months. You are a refugee and come from a difficult background. You are the oldest of five children and have four sisters. Both your mother and father came to this country along with you and your siblings, as refugees.

34 Your mother came to this country first in 2001 and you arrived in November 2003. Your parents were refugees from Syria, as they were Kurdish. Your mother was persecuted for her religious and political views in Syria and she left there to live with her brother in Australia, after arriving here and seeking asylum. She came to Australia because she was very ill and needed an operation which she had in 2002. Your mother was a lawyer and was involved in women's rights and Kurdish rights. She has been imprisoned and tortured.

35 Your father, who was a teacher, was dismissed from his position and also ultimately had to flee Syria, taking with him the then four children. Your family went from their home in Allepo to The Morat, where he worked as a labourer, before moving to Turkey for one year as a refugee, then being granted permission to come to Australia.

36 You attended a number of different schools, but you also missed out on schooling because of your refugee status. You spoke no English and struggled with both the cultural difficulties and the language. Your mother encouraged you to find friends and develop a social network in Australia, which you did and you would often go out on weekends. It is clear that your mother was not aware of your activities on those weekends.

37 You attended the Brunswick Language Centre for a year to improve your English and then attended Banksia Secondary College. You failed Year 11. Your family had requested you repeat Year 10 initially, but the school disagreed. At the end of Year 11 you left school and attempted to enrol in a mechanics course and tourism course at Northern TAFE. That did not eventuate and you returned to school to repeat Year 11. That is what you were doing at the time of these offences. However, you were refusing to attend school; were staying out late at night and this was having a marked effect on your family and was a cause of constant problems between yourself and your parents.

38 Since you have been in custody you have been actively involved in education at the Youth Justice Centre. The report in respect of education has been very positive and you are described as having a mature approach to your education, recognising that it will increase your employment prospects upon release.

39 Your time in custody has clearly been a difficult adjustment for you and you were for some time, involved in a number of incidents involving violence, relating to vulnerable fellow detainees. There were 13 of those incidents in all. Your placement was changed in August 2007 and there has been only one incident since that time.

40 You have been involved in counselling courses and a "Stop the Violence" program, but your participation in that program has been described as limited, although your involvement has been much better in respect of one on one counselling. You ceased that counselling for a while, but ultimately returned and recommenced that counselling. You have been involved in sport activities whilst in custody and you have demonstrated a high level of motivation towards organising sporting events within the Justice Centre. You are not considered a management problem.

41 On this night you, like Mr Simpas, had consumed a large amount of alcohol which in no way justifies your behaviour, but may at least explain some of it. It is clear that you were aggressive and belligerent on that evening and determined to be the leader and encourage others to back you in your fight with the deceased and his friends. They had done nothing to deserve this and it is a true tragedy that you as a refugee, were involved in the death of another refugee. All of you had come here to escape the violence and oppression you were suffering in your homelands and Mr Morgan is now dead and you are one of those involved in his killing.

42 You HR, face two other sets of offences, being matters that occurred on two weekends in January and February 2006 where a group of young men; the same as those involved in this particular group, with the exception of Mr Simpas, were effectively mugging young men in the parks for their mobile phones. Your counsel described you quite simply as someone who was out of control. He submitted that now you are back in a more structured environment, you seem able to cooperate and behave yourself. That will be a matter for other courts to deal with and I do not intend to impose any additional punishment for those offences. But I must say that the behaviour referred to in those matters appears entirely consistent with your behaviour on the night.

43 Despite these matters, which occurred prior to this offence, overall I consider that ultimately you do have good prospects for rehabilitation. It is so unfortunate for Mr Morgan and for both of you that it is a process of your maturing and taking responsibility for what occurred on that night. It has been slow; your maturation process to a degree, but I accept that after initially having problems settling into custody, you both appear to have matured to a degree. With that maturation has come an understanding of the seriousness and the gross stupidity and futility of what you both did on this night.

44 I received a letter written by HR, which, while simply written, does express the maturity and regret for his actions that occurred. In this case I have to impose a sentence that balances the need for general and specific deterrence with denunciation and punishment and a very key issue; that of rehabilitation. The courts have consistently stated that for young offenders the primary focus should be rehabilitation. I was referred to a decision of the Court of Appeal in DPP v SJK and GAS,[3] which was a case of manslaughter. But it was one of manual strangulation, sexual assault and robbery of a frail 72 year old woman whilst she was asleep in her own home.

45 It had many levels of depravity associated with the offence. At paragraph 61, the court, comprising Phillips CJ and Chernov and Vincent JJA stated:

When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation but this is by no means the only basis upon which it assumes relevance. For at least a century the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people to some extent the law incorporates an acknowledgement of aspects of immaturity. By reason of the state of development that an offender may have reached, he or she may not fully appreciate the serious and real consequences of the offending action. However, it does not follow that this is always the situation and that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.

46 Here I do find that you are persons who fall within the category of what I have just described. That is, not fully appreciating at the time, the seriousness and potential consequences of your actions. There are many cases to which I have been referred which I do not intend to cite in this sentence, all of which strongly state that rehabilitation is a matter of great importance when dealing with youthful offenders. I intend to act upon that basis and the issue of rehabilitation will be the primary sentencing consideration. Although Mr Simpas is older than HR and was the person who actually wielded the bottle that killed Mr Morgan, I do not intend to differentiate between you on the sentence as I believe your culpability to be equal.

47 In relation to Count 1 on the presentment, the count of manslaughter, you are both convicted and sentenced to imprisonment for a period of four years and six months. In respect to the crime of intentionally causing serious injury, you, Mr Simpas, are convicted and sentenced to six months' imprisonment. I direct that three months of that sentence be served cumulatively upon the sentence imposed on Count 1, making a total sentence of four years and nine months' imprisonment.

48 In respect of the count of affray, HR, you are convicted and sentenced to be imprisoned for four months, two months of which is to be served cumulatively upon the sentence imposed on Count 1, making a total of four years and eight months' imprisonment.

49 I direct that in each case you are to serve a period of three years' imprisonment before being eligible for parole. I declare that you have each served - - - -

MR GILLIGAN: Mr Simpas, Your Honour, 821 days including today and HR, 822 days including today.

MR LEWENBERG: I agree with that calculation, Your Honour.

HER HONOUR: In respect of Mr Simpas, I declare that you have spent 821 days in pre-sentence detention and in respect of HR 822 days pre-sentence and that such should be noted in the records of the court. I also make the disposal orders as sought.

[1] That was from p.6 of Ms Northey's report.

[3] [2002] VSCA 131.