R v Singh & Ors [2008] VSC 293

2 Your pleas 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.

3 Christopher O'Brien was 22 years of age at the time of his death, with 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 you Darren Summers, moved into premises occupied by you at 1261 Heatherton Road, Noble Park. The affairs of Christopher O'Brien were under the control of the State Trustees and the rent payable by Christopher O'Brien was paid directly into your bank account. Nearby to those premises were the premises at 1288 Heatherton Road, Noble Park occupied by you, CL, and others including your father Dimitrios Likiardopoulos, your brother John Likiardopoulos, Antoinette Villella and Hakan Aydin.

4 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. In his statement to police, on which the Crown case is essentially based, Hakan Aydin said the house was "... a big party joint. Everyone was doing heaps of drugs, mainly speed, ice and marijuana." He also described the inevitable heavy drinking.

5 The circumstances leading to the death of Christopher O'Brien began in early 2007 when you, Darren Summers, alleged that Christopher O'Brien had removed a silver coloured bracelet belonging to your girlfriend from the house you occupied at 1261 Heatherton Road. After O'Brien had been challenged about the theft, the bracelet reappeared but you, Darren Summers, conveyed the information about the alleged theft by him to the Likiardopoulos family.

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

7 Upon it being concluded that you were a suspect for the theft of the mobile phone, you, Shalendra Singh, were made to sit in a chair in the dining/loungeroom area of the house where you were verbally and physically abused by persons in that household. It is important to note the physical assaults on you included being struck with fists, kicked, made to do humiliating acts, burnt with cigarettes and having methylated spirits wiped on your injuries. This so-called punishment took place over a two day period. Ultimately, you persuaded other members of the Likiardopoulos household that you were 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.

8 In the early part of March 2007, Christopher O'Brien was asked to attend at the Likiardopoulos house at 1288 Heatherton Road. Once he was there he was also subjected to very serious assaults over a two day period. 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 were Dimitrios Likiardopoulos, John Likiardopoulos and Hakan Aydin. For these purposes it is sufficient to state that the assaults which were carried out over a two day period on the deceased were extremely serious and ultimately were the cause of his death. In the early hours of 7 or 8 March 2007 it became apparent to those present at the house that the deceased was in a serious medical condition. Indeed, he died whilst in the loungeroom area of the house, despite efforts by others present to revive him through the use of cardiopulmonary resuscitation.

9 The evidence indicates that Dimitrios Likiardopoulos took charge of the situation and displayed 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 two of the others present who had been involved in the attack on Christopher O'Brien, his son John Likiardopoulos and Hakan Aydin, to take the deceased in a car and bury his body in the Dandenong Mountains. Ultimately John Likiardopoulos and Hakan Aydin were unable to find an appropriate location as they drove around with the body of the deceased in their motor vehicle. They finally discarded the body of the deceased and threw it into the Dandenong Creek off Pillars Road, Bangholme.

10 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.

11 John Likiardopoulos and Hakan Aydin have pleaded guilty to the manslaughter of Christopher O'Brien and Dimitrios Likiaradopoulos will stand trial for his murder in February 2009.

12 The offence to which each of you has pleaded guilty and for which you are to be sentenced is not based directly on the attack on Christopher O'Brien but rather the aftermath and is comprised of the following.

13 Each of you having been present and aware of what had occurred, you, CL, attended at a Safeway petrol station and purchased three bottles of methylated spirits from the cashier for the purpose of assisting in the clean up of the premises. Likewise you, Darren Summers, provided a quantity of cleaning chemical from your garage to assist in the clean up of the premises. You also drove your car across to the address and loaded plastic bags into the boot of your car containing items such as clothing, shoes, towels, a hammer and other items used in the assault and killing of the deceased. You took these items back to your own premises at 1261 Heatherton Road and burnt them in a 44 gallon drum in your backyard. You removed the ashes and disposed of them at an unknown location.

14 Later when enquiries were commenced into the whereabouts of Christopher O'Brien, you, Darren Summers, informed those people that O'Brien had simply disappeared and that you were unaware of his whereabouts.

15 More generally, it is said of each of you by the Crown that you assisted in the clean up of the premises as directed by Dimitrios Likiardopoulos and that in particular you, Shalendra Singh, and you, Darren Summers, did what you could to divert the police by making statements to them - aspects of which were false. In particular, you, Shalendra Singh, told police in a statement on 12 August 2007 that you had last seen the deceased approximately five months earlier at Darren Summers' house. You described the fact that you were there and that Christopher O'Brien was watching television and that you did not speak to him on that occasion. That, you said, was the last time you had seen O'Brien. You went on to tell the police in relation to the premises at 1288 Heatherton Road:

At no time have I ever been aware that Chris was at the house and has been assaulted by anyone living there and certainly not whilst I have been at the house. I have never been present during nor have any knowledge of Chris being assaulted by anyone.

16 You, Darren Summers, told police in a statement dated 11 August 2007 that about two and a half to three months earlier there was an occasion when Christopher O'Brien did not return home to your premises and has not been there since. You said you had not seen him for about three months. You told police that all Christopher O'Brien's belongings were still in your room and that you were still being paid the fortnightly rent by the State Trustees. That at least was true. You then said,

I've got no idea where he could be. I tried to call the Dandenong and Frankston Hospitals to see if he had been there, but no luck. I didn't really know anyone that knew him. He was basically picked up by a worker once a week and he would sometimes go to a dance hall on a particular evening.

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

18 Each of you were arrested and interviewed by police and in each case you chose not to answer the questions put to you, exercising your right to make no comment.

20 CL, you have prior convictions in the Heidelberg Children's Court in 2003 for assault in company, armed robbery and being in the possession of a controlled weapon without excuse. You were released on a bond of $100 to be of good behaviour for 12 months. I am told by your counsel that incident effectively involved friends of yours approaching a person demanding or asking for cigarettes which were refused and a knife was produced and that at one stage you took the knife from those who were wielding it. I agree with the submission that the penalty imposed on you lends some credence to that explanation.

21 Darren Summers, you have some 53 convictions from seven court appearances between 1990 and 2001. Primarily, the offences are offences of dishonesty including burglary and theft. The point made about them on your behalf is that but for one in 2001, they cease in the mid 1990s and are only of marginal relevance. Whilst there is a period without offending, "marginal" is not the term I would use to describe their relevance. However, they do have to be seen in a proper context.

22 I have received eleven victim impact statements. These statements reflect the desperation created by the brutal killing of Christopher O'Brien and the agonising loss suffered by his family. It is submitted that in relation to the offences to which you three prisoners have pleaded guilty, they have limited relevance since they are most directly relevant to those of your accomplices who are to take legal responsibility for causing the death of Christopher O'Brien. There is merit in that submission.

23 Nonetheless, it should be noted that the offence to which you have all pleaded guilty is one which involved concealing the fact of the killing of Christopher O'Brien and that contributed to the fact that for five months his family were unable to know what had become of him.

24 You, Shalendra Singh, are aged 23. You were born in Fiji and are the product of your father's second marriage. Your mother remained in Fiji after your parents' separation in 1991. You and your father came to Australia in that year. Your education was in the Noble Park area until Year 11. Following your secondary education you attended a TAFE college in Dandenong and undertook a hospitality course and you also have some certificate level qualifications in automotive mechanics. From about the age of 14 you developed epilepsy and you have had regular grand mal seizures.

25 You have been in custody since your arrest in August of 2007 and you have had seizures whilst in custody. Although your relationship with your father had fractured, apparently those issues have been resolved between you and I am told by your counsel that upon your release from custody you will be returning to live with him and have agreed to abide by his conditions which particularly include a prohibition against the use of marijuana which you have used regularly over a period of time.

26 A report was tendered in evidence prepared by Consultant Psychiatrist, Dr Danny Sullivan. He describes you as vulnerable and considers that you need and will benefit from drug counselling, in view of your polysubstance abuse and cannabis dependence. He also considers that on your release you will require support for accommodation, employment and re-integration into the community.

27 You, CL, are aged 18 and you were 17 years at the time of this incident. I am told that you were born in Melbourne and brought up in the Preston area. You are the youngest of three children and you are also the product of a fractured marriage. The break up occurred when you were about four years of age. Apparently those circumstances were difficult and involved at various stages domestic violence and the need for intervention orders. The result seems to be the dislocation of your upbringing.

28 After the separation of your parents you stayed with your mother for a period of time and went to a series of primary schools. For eight years you had no contact with your father although you made contact with him subsequently. Indeed, you moved with him to Adelaide and finished your primary schooling in that city, returning to Melbourne and completing your education to Year 10 level, or at least a few months of it. Your mother suffered from significant depression and you became involved in her care and were registered as such with Centrelink.

29 At an early age you commenced the use of drugs, including marijuana and also alcohol. You were smoking marijuana at the age of 11 years on a daily basis.

30 You, Darren Summers, are 37 years of age, having been born on 16 January 1971. You are also the product of a fractured marriage and after that occurred at the age of five you moved to Western Australia with your mother where you remained until you were 14. When you were 12 your natural father died as a result of a suicide. According to the history that you gave forensic psychologist Elizabeth Warren, he was schizophrenic as you are. Your mother has remarried and your stepfather has apparently suffered from multiple sclerosis for some period of time.

31 You are one of three children but you only have contact with one of your two sisters who resides in Western Australia.

32 Your education was problematic and included time at a special school in Western Australia and then on return to Victoria a series of jobs followed three years ago by a disability pension.

33 You have fathered one child, born on 31 May 1991.

34 You are taking antipsychotic medications which are indicated for the treatment of schizophrenia and related psychosis.

35 You have been a cannabis smoker and used alcohol. You are suffering from a mild to moderate cannabis dependence. You have apparently a high level Generalised Anxiety Disorder.

36 In the case of you, Shalendra Singh, the following mitigatory circumstances are relied upon by your counsel. First of all, you have pleaded guilty to the offence and did so at the committal proceedings. It is submitted that your plea of guilty should be viewed as a sign of your remorse as well as the utilitarian value it has in avoiding the need for a trial. Secondly, you have no prior convictions and at age 23 you are a youthful offender with, it is submitted, prospects of rehabilitation because there is some prospect of employment as well as a family to return to.

37 Your counsel also points to the fact that, as I have earlier described, within the Likiardopoulos premises you were suspected of being a thief and received what was appropriately described as a very severe beating. Your decision to remain in the house notwithstanding the way you were treated is sought to be explained on the basis that at that stage you had fallen out with your father and that, based on the report from the psychiatrist, Dr Danny Sullivan, you were a particularly vulnerable and naïve person. Dr Sullivan does describe the fear you had of the Likiardopoulos family and their affiliates, particularly Dimitrios Likiardopoulos.

38 On behalf of you, CL, it is first submitted that you pleaded guilty at the first available opportunity. In addition to the utilitarian benefit that flows from the avoidance of a potentially lengthy trial, it is submitted that your plea is also a demonstration of your remorse. Having read the report of Mr David Ball, forensic psychologist, tendered on your behalf, I am not inclined to accept that submission. He records you as telling him that you were pleading guilty because you just wanted "to get it over with". He said you expressed little empathy with Christopher O'Brien although you were "sad" after reading the victim impact statements.

39 As I have earlier said, at the time of the offence you were 17 years of age and therefore come within the definition of "young offender" for the purpose of s 3(1) of the Sentencing Act 1991 (Vic) ("the Act").

40 In the course of submissions on your behalf I was referred to the principles enunciated by the Court of Appeal in R v Mills.[1] Batt JA stated those principles as follows:[2]

1. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
2. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. ...
3. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.

41 As Batt JA said of these principles in R v Bell:[3]

They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender. Youth cannot in all cases keep an offender from gaol.

42 However, the reality is that you have served time in custody at the Melbourne Juvenile Justice Centre, having been there since your arrest on 12 August 2007 - a period of 364 days. I was informed that whilst in custody you have undertaken courses to improve your skills and that your ambition upon release is to be involved in the construction industry. The report of the Department of Human Services of 24 July 2008 suggests that you have shown considerable interest in improving your qualifications and it does seem that you have undergone a positive change of attitude while you have been at the Melbourne Youth Justice Centre, including your attitude to your offending, which is to your credit.

43 In submissions, the learned prosecutor accepted that in your case, given your youth and what he described as your limited role, your offending could be described as "less serious".

44 In your case, Darren Summers, reliance is placed on the fact that you also pleaded guilty to this offence at the committal. On your behalf, Mr Wraith refers me to your background and your psychological condition notwithstanding your extensive previous convictions. Your medical conditions include epilepsy and schizophrenia. I was provided with a report by Elizabeth Warren, forensic psychologist, which suggests that you have a moderate cannabis dependency and Generalised Anxiety Disorder. You also apparently have difficulties with anger as a result of your psychological condition.

45 Your counsel also raised what was apparently your concern that you might be sentenced in some way for the manslaughter of Christopher O'Brien. I make it clear in relation not only to you but also Shalendra Singh and CL that you are being sentenced only for the offence of being an accessory to manslaughter. It is not legally permissible to in any way increase that sentence by reference to facts which are only relevant to the offence of manslaughter - an offence for which you are not before the Court.

46 It was submitted on your behalf that the time you have served to date as pre-sentence detention is a sufficient penalty and should be fixed as the minimum term. I do not agree.

47 The seriousness of the offence in this case is that you all were aware of the brutality of the attack on Christopher O'Brien over an extended period. Notwithstanding that knowledge you co-operated in doing things which were aimed at protecting those who had killed O'Brien. It seems to me that general deterrence is a significant sentencing consideration and your willingness to help to conceal this terrible crime is an attitude which the community simply will not tolerate.

48 However, it must be noted that it is also significant that each of you claim, and the Crown does not disagree, that much of the activity which occurred after the death of Christopher O'Brien in which you participated was closely supervised by Dimitrios Likiardopoulos.

49 In the case of you, Shalendra Singh, you had been assaulted prior to the incident which now brings you before this Court and whilst that does not excuse in any way your conduct, it certainly provides an explanation for it and indeed mitigates it to some extent.

50 You, CL, were, I think, of such an age that you felt you were really in no position to refuse to comply with the instructions given by your father and I take that into account in the sentence to be imposed on you.

51 No such submission was made in terms on your behalf, Darren Summers, but given your background and psychological condition I consider that the circumstances to which I have referred also mitigate your offending.

52 In my view, there is no question that the offending is serious in each case. In two cases it involved making false statements to police as well as the efforts to conceal the appalling crime of others by cleaning and removing incriminating items. Whilst I accept that in each of your cases your pleas of guilty may have some element of remorse, I do not consider it to be the dominant motivation for the pleas. I do consider that general and specific deterrence both have a significant role to play in the sentences I should impose. The learned Crown prosecutor appeared to accept that the time served by all of you to date comes within the acceptable range of sentences as a minimum sentence to be fixed before being eligible for parole. In two cases I am afraid I cannot accept that.

53 Shalendra Singh, on the count of being an accessory to manslaughter, I sentence you to be imprisoned for a period of 2 years and 3 months. I order that you serve a period of 14 months before being eligible for release on parole. I declare that the period to be reckoned as already served under the sentence is 357 days inclusive of today's date.

54 CL, on the count of being an accessory to manslaughter, pursuant to the Children, Youth and Families Act 2005 (Vic), I sentence you to be detained for 18 months in a Youth Justice Centre. The Youth Parole Board is the body that determines when you are to be released pursuant to s 458(1) of that Act, however I do recommend to the Youth Parole Board that you be released forthwith. I declare that the period to be reckoned as already served under the sentence is 360 days inclusive of today's date.

55 Darren Summers, on the count of being an accessory to manslaughter, I sentence you to 2 years and 6 months' imprisonment. I order that you serve a period of 16 months before being eligible for release on parole. I declare that the period to be reckoned as already served under the sentence is 356 days inclusive of today's date.

56 I have taken into account the fact that each of you have pleaded guilty and that those pleas were entered at the committal hearing. For the purpose of s 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your pleas I would have sentenced you, Shalendra Singh, to 3 years' imprisonment and ordered that you serve 18 months of that sentence before being eligible for parole. In your case, CL, I would have sentenced you to 2 years detention in a Youth Justice Centre. In your case, Darren Summers, I would have sentenced you to 3 years and 6 months' imprisonment and ordered that you serve 2 years before being eligible for parole.

57 Finally, I will make the retention and disposal orders which the Crown has applied for and which you have not opposed. I also grant the Crown's application for a forensic sample with respect to you, CL.

58 I reserve liberty to apply to CL, in the event that any further orders need to be made.

[1] [1998] 4 VR 235.

[3] [1999] VSCA 223 at [14].