R v Soteriou [2011] VSC 623

4 You drove in your husband's car to the restaurant in Fitzroy, en route stopping to purchase wine for the festivities. It was unusual for you to drive that car, and you did not tell your husband where you were going. You parked the car in Rose Street, Fitzroy, which runs off Brunswick Street where the restaurant was located. You arrived at the restaurant at around 9.00pm and were joined by five friends. It was a happy and convivial night. You appeared to your friends to be a happy couple. There was nothing untoward about your demeanour or your conduct, except for the fact that you were noted to be absent from the restaurant at some stage during the night.

5 The restaurant was a regular haunt for you and your husband. There was dancing and birthday sparklers, and your husband, uncharacteristically for him, apparently at your invitation, drank wine and a cocktail.

6 At the end of the evening, you all agreed to meet at a bar in the city, and it appears that you all walked out of the restaurant and you and your husband walked to your car, parked at the far end of Rose Street.

7 You and Chris Soteriou were filmed on CCTV footage. You are seen to be turning into Rose Street; you were walking together, your husband had his arm around you. Moments later, as you approached your car, your husband commented upon a man appearing to be crouching near it. You walked off onto the roadway and Mr Soteriou continued to walk on the footpath. The man crouching was in fact your lover, Ari Dimitrakis, and as Mr Soteriou drew near, Ari Dimitrakis attacked him, slashing his throat and stabbing him up to six times. The sound of the scuffle was heard by two off-duty doctors who had just alighted from their parked car. Dr O'Loughlin approached Mr Soteriou and his attacker, and called out to his friend, Dr Bryan, to ring the police. Dr O'Loughlin called out to the attacker that the police had been called and, with that, Ari Dimitrakis dropped the knife and ran off, fleeing the scene in a car which was nearby. Drs O'Loughlin and Bryan then administered first aid to Mr Soteriou and, were it not for their timely intervention and the very swift response of police and emergency services, the consequences of the attack for Mr Soteriou may well have been fatal.

8 Triple zero received Dr Bryan's call at 11:51pm. By 12.17am, Mr Soteriou was at the Royal Melbourne Hospital, where he underwent emergency surgery. Dr Rechnitzer, an intensive care specialist who had the care of Mr Soteriou during his period in hospital, gave evidence that Mr Soteriou had suffered serious and life-threatening injuries. These included respiratory shock, massive bleeding in the abdomen which resulted in haemorrhagic shock and multiple lacerations consistent with stab wounds to the neck, abdomen and chest. Mr Soteriou underwent a number of surgical procedures; he was placed under heavy sedation and he was treated in intensive care from 3 to 15 January and remained in hospital until he discharged himself on 23 January 2010. By that time, you had been charged with his attempted murder.

9 On 13 January 2010, you had told the police that Ari Dimitrakis was your lover and you claimed that he had been stalking you. You told the police that you suspected he may have attacked your husband. Two days later, on 15 January, you went to the Richmond Police station of your own initiative and there admitted to the informant that you were "involved in it with Ari"[1]. In the subsequent interview, you admitted to the police that you and Ari Dimitrakis had planned it, that it was to take place on your husband's birthday, and that you were guilty. You told the police that you had met Ari in a park on the day of your husband's birthday and Ari had said, "I'll see you tonight", and either he was going to do it or he would get someone else.

10 The case against you was a strong one. The Crown relied upon your admissions and confession, and also upon a significant body of circumstantial evidence. Ari Dimitrakis also gave evidence on behalf of the Crown and, although the Crown did not rely on all that he had to say, he did give evidence that he met you in a park on that day, that you told him the name of the restaurant that you were going to, and that the car would be parked around the corner from the restaurant. He also said you gave him a knife wrapped in a towel. You did not give evidence at your trial, but through your counsel you contended that Ari Dimitrakis had been stalking you and that he attacked Mr Soteriou on a frolic of his own because you would not leave your husband. Clearly, by reason of their verdict, the jury were satisfied that you and Ari together intended to kill Mr Soteriou.

11 Mr Tinney SC submitted that this was a very serious example of a serious crime and that it fell towards the upper end of the range of seriousness.[2] This is so, he submitted, because it involved the attempted murder of your spouse in circumstances where the idea was yours, where, from the time you conceived the plan to its execution, substantial time had passed, providing you with ample opportunity to desist, and where you provided the weapon and nominated the location and timing of the attack. Mr Dunn QC submitted that to act on this basis required accepting Ari Dimitrakis' evidence, a witness conceded by the Crown to be not entirely truthful. I am satisfied that the plan to kill Chris Soteriou was not a spontaneous decision or one in which you simply acquiesced in order to appease Ari, as you seemed to say to the police. Ari Dimitrakis gave evidence that it was you who raised the subject of having your husband killed and that this was in late January/February 2009, and that the topic was raised every two to three weeks. He said that you suggested a hit man and said that insurance would pay for it. Although there was some dispute as to your entitlement under the insurance policies, Ari Dimitrakis' evidence was not otherwise challenged on this point and I am satisfied that the idea of killing your husband was initially yours and that the topic was discussed from time to time, and that these discussions took place when you and Ari were embroiled in a passionate and turbulent affair, you discussed leaving your husband and the two of you being together, it appears, in life and in death. Ari Dimitrakis' evidence that you and he visited a display home that you and your husband were planning to build on land purchased in Ivanhoe, asking for his input and that once the house was built, you would leave your husband was not specifically challenged. Nor was the evidence of your purchase of adjoining gravesites at the Keilor Cemetery in September 2009 and the letter which you wrote from prison in April 2010 after you knew that Ari had been charged with the attempted murder of your husband, wherein you professed your love for Ari "for all eternity"[3], in the full knowledge that he had attempted to murder your husband. The expression of such sentiment in those circumstances can only be seen as a resounding endorsement of what he had done and done so consistently with your plan to kill your husband.

12 Further, the crime could not have been implemented to the degree that it was if it had been the result of a spontaneous decision on that day, or if the idea had simply been Ari's and you had acquiesced in it, Ari would not have known the date of your husband's birthday, you would have no other reason to tell Ari where you were going that night, and he would not have known otherwise. The records of his mobile phone indicate that he did not follow you to Fitzroy on that evening. He would not know where your car was parked or what car you would be in, or what time you would be leaving the restaurant unless you had told him. The fact that Ari was near your car when it was parked in a side street two streets from the restaurant, of all the streets in Fitzroy, and that he was there at the very time you and your husband were returning to the car and that the knife used in the attack was the same brand as the knives you had in your home (although you gave the police a different account as to how Ari came to have that knife in his possession) these are all matters which satisfy me that the detail and coordination required were such that the crime must have been the subject of considerable planning, between the two of you.

13 Mr Tinney SC submitted that you were motivated not by love alone, but by a selfish desire to rid yourself of a troublesome encumbrance to your continuing relationship with Ari, and I accept that this was so. However, your husband was not the only impediment to your life together with Ari; he, too, was married, but his wife found out about the affair. She had seen a photograph of you on Ari's mobile phone and had read some of the text messages. But your husband knew nothing of the affair, despite the fact that you had Ari's name tattooed on your finger as concealed by your wedding ring and the initial "A" tattooed on your neck and covered by your hair. Further, you were constantly texting each other, at least from September 2009, in excess of 2,000 texts on your part and 1,000 texts on the part of Ari. You were leaving your house to see Ari, and Ari was seen in your street by neighbours on many occasions, speaking on his phone, presumably to you, and trying to get your attention.

14 The Crown did not make much of motive before the jury, other than, of course, to say that the crime took place in the context of this obsessive affair. But clearly the goal of the plan was to have your husband dead, and the only reason for this could be so that you could be with your lover without any diminution in your lifestyle and financial security. Clearly, you contemplated a life with Ari and your children in the house proposed to be built at Ivanhoe. Ari was a man of very modest means indeed. There can be no other reason for you, desirous of a life without your husband, not simply initiating proceedings in the Family Court.

15 Your counsel, Mr Dunn QC, submitted that the behaviour which led to your coming before the Court was the result of an extremely torrid affair which had an intensity out of the ordinary and, as a result of which, there was a loss of calm reasoning on your part. Certainly, the relationship with Ari was very intense both on your part and his. But this, in reality, does little to explain your conduct. Generally speaking, people enthralled with each other and caught up in a grand passion do not go on to attempt to kill their spouse. Ari did not.

16 It is not disputed that your husband had provided you with an affluent lifestyle, and it appears from the sentiments expressed in the birthday card that you were prepared to have him believe he was loved and appreciated in return. In truth, you wanted him dead, and you and Ari Dimitrakis planned his murder and took all the necessary steps to ensure that it occurred, your endeavours being thwarted only by the timely intervention of those present and the expertise of the professional staff at the Royal Melbourne Hospital. Further, had your plan come to fruition, your three children would have been left without a father, a consequence of your criminality which it appears you were prepared to discount. It follows that your conduct is properly to be regarded as heinous conduct of the highest order and a gross betrayal of the trust that reposes between husband and wife.

17 Your husband Chris Soteriou read his Victim Impact Statement to the Court. Although it appears that he has recovered to a degree from the physical injuries inflicted upon him that night, he nonetheless is receiving ongoing medical treatment and has asked the Court not to underestimate the physical impact this crime has had on him. He remains devastated by your crime and its consequences to him, your children and the wider family. Your crime has brought asunder the life he previously enjoyed and shared with you. He has ceased his previous lucrative employment, he has not been fit enough to return to work and doubts that he will be able to work again at the senior levels he previously attained. With the assistance of his mother, he is now the full-time carer of the twins, now aged three but, as I understand it, he is now estranged from his 15 year old daughter. The family life that he enjoyed in the past and expected to enjoy into the future is now lost to him.

18 Not surprisingly, your husband has been diagnosed as suffering post-traumatic stress disorder. He has suffered a diminution in his sense of self worth, and everything which he had wanted for his family must now be recast. It is difficult to appreciate the profound sense of betrayal that he must feel in the face of the knowledge that his wife, with her lover, had attempted to murder him on his 44th birthday, of all days.

19 I turn now to matters personal to you. You are now aged 44. You are the mother of three children; a daughter now aged 15 and twins, a boy and girl, now aged three. The twins were conceived as a result of three years on the IVF program and after you had suffered a miscarriage. You are supported in your predicament by your elderly parents, who were present throughout the trial and who themselves are in inadequate health. They came with you and your sister to Australia from Greece in 1967. Both your parents worked initially in factories and later, because your father is a builder, he bought and did up houses. They are said to be comfortably off.

20 You completed Year 11 at the Preston Girls High School and trained as a hairdresser. You lived at home until you married in 1994. Mr Soteriou gave evidence at the trial, and it was not disputed, that your life together, in his words, was "very luxurious. We had a good lifestyle. It was a good life". Mr Soteriou's employment took him to Sydney in 1997. He lived there three days a week, returning home for four days. Mr Dunn QC submitted that this separation may have sown the seed for some distance between you and Mr Soteriou.

21 Upon your confession to the police, you were charged and remanded in custody, where you were initially accommodated in Marmak, the psychiatric unit at Dame Phyllis Frost Centre and then, having suffered a brief reactive psychosis, you were transferred to the Thomas Embling Hospital, where you remained until March 2010 when you were returned to custody at the Marmak Unit. You were subsequently released on bail in September 2010 and have been seen by a psychiatrist, Dr Kerry Mack, since then. Dr Mack's report, dated 4 November 2011, was tendered in evidence on the plea as Exhibit "2". She reported that you suffered a further brief reactive psychosis with paranoid features in February 2011 as the result of the stress of legal proceedings. You are presently prescribed antipsychotic medication and, in Dr Mack's opinion, you are at risk of relapse and at a high risk of developing further psychotic symptoms and could, in her words, "longitudinally develop schizophrenia". In Dr Mack's opinion, the stress of incarceration will be a challenge for your mental health.

22 A further report by Dr Sullivan dated 10 November 2011 was tendered in evidence on the plea as Exhibit "1", his earlier reports being tendered on the voir dire. You reported to Dr Sullivan that you had suffered a breakdown in July 2011, although Dr Mack refers to this as occurring in February of this year, but that upon your being returned to custody after verdict, you have settled well. You are working in the stores and kitchen and you report no significant symptoms of mental distress, other than that which would be expected, and no psychotic symptoms. In his opinion you appear determined to use your time in prison productively and to engage in meaningful occupation. You are, he stated, distressed at the now limited opportunity you will have to be a mother to your children. You only see your 15 year old daughter when your parents bring her to see you, and your access to the twins is now the subject of Family Court proceedings. Dr Sullivan observed that your incarceration will impact negatively on the attachment of the two youngest children to you. Dr Sullivan also opined that you appeared to have developed an idealised notion of Mr Dimitrakis which, of course, was contrary to the way in which your defence was conducted.

23 Mr Dunn QC submitted that there are a number of mitigating circumstances. They were as follows:

(1) You have no prior convictions and you are otherwise a person of good character.

(2) Your behaviour in custody and on bail has been trouble-free. This would suggest that your prospects for rehabilitation, he submitted, are sound.

(3) In the months prior to the offence, there were a number of extraordinary events, which included Ari Dimitrakis' suicide attempt and your efforts to break up that relationship and that your offending should be seen in that context.

(4) That you disclosed to the police the identity of Ari Dimitrakis, who was not known to the police and was not previously a suspect.

(5) That you confessed your guilt and said you were sorry in the record of interview on 15 January in circumstances where you were not previously a suspect.

(6) That you tested the Crown case but did not give evidence.

(7) Mr Soteriou appears to have made a reasonable physical recovery and expresses himself optimistic about life.

24 These considerations however must be placed in the context that for some 13 days when the police were investigating the incident, you did not disclose to them the existence of Ari Dimitrakis or your joint plot to kill your husband. It was only when you had been informed by your husband, quite erroneously, that the police were about to make an arrest did you then tell them about Ari and subsequently confess your guilt to this crime. Mr Tinney SC submitted, and I accept, that this does, in light of your subsequent confession, indicate your continuing dishonesty, a desire to manipulate and a complete lack of regret to that point for what you had done. Further, although you expressed yourself sorry in that interview with the police, very little has been said about your remorse. Mr Dunn QC, when pressed, submitted that you had had a very, very long time to reflect and you have come to the view that this was the most bizarre, stupid and awful thing that could happen and that you are remorseful and that your own life has been shattered by your own actions.

25 Your co-accused, Ari Dimitrakis, was sentenced by another judge of this Court to seven years' imprisonment with a non-parole period of five years. He had pleaded guilty to a charge of intentionally causing serious injury, an offence which carries a maximum penalty of 20 years imprisonment. Ari Dimitrakis received a discount on his sentence by reason of his early plea of guilty and his cooperation with the authorities and undertaking to give evidence on behalf of the Crown in the case against you. Further, Ari Dimitrakis' sentence was ameliorated to a degree by reason of the application of the principles in R v Verdins.

26 Mr Dunn QC submitted that the sentence imposed upon Ari Dimitrakis was an appropriate yardstick, acknowledging, of course, that his criminality did not involve the gross betrayal of trust here present and that he pleaded guilty to an offence which carried a lesser maximum penalty.

27 This however was not a case, as Mr Dunn QC submitted, of simply testing the Crown case, and although you are not to be punished for running a trial, which is, of course, your right, nonetheless that trial was conducted despite your confessions of guilt to the police and your expressions of remorse and contrition as expressed in the record of interview and which must be placed in that context. Further, I am satisfied that you here engaged in highly manipulative conduct both in your dealings with Ari before and after the offence, and the police and your husband. In these circumstances, where no other reason for your offending is relied upon by your counsel, other than your lack of judgment as a result of your grand passion for Ari Dimitrakis, considerations of specific deterrence clearly do carry considerable weight, as, of course, do considerations of general deterrence.

28 The maximum penalty for attempted murder is 25 years' imprisonment. It is, of course, a very serious offence, involving as it does the formation of an intention to kill. You did not wield the knife, but you intended your husband's death just as surely as if you did. Your conduct is properly to be regarded as a very serious example of a very serious offence, involving as it does a gross betrayal of trust, and I therefore regard your culpability as high. Certainly, you have no prior convictions and, were it not for this offence, you would otherwise be regarded as a law-abiding citizen. I take into account also that, according to Dr Sullivan, you are determined to use your time in prison productively and to engage in meaningful occupation. I accept that in these circumstances, your rehabilitation is most likely to be achieved and I accept also that by reason of this offence, you personally will suffer dire consequences, you will now be denied the opportunity to mother your children and nurture them in any meaningful and realistic way for many years to come, which is of particular significance, given the twins are only three years old and given the circumstances in which they were conceived. I take into account also that incarceration will weigh more heavily upon you, for these reasons, and that incarceration may well impact upon your mental health in the future. I take into account also that you have subsequently been diagnosed as suffering from depression. I take into account also that you will be serving a sentence of imprisonment for the first time, and a substantial one at that.

29 Against these matters go the nature and gravity of the offence here committed and the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and protect the community from you. Mr Tinney SC has submitted that an appropriate sentence is within the range of the order of 13 to 16 years, with a non-parole period of 10 to 13, and Mr Dunn QC did not address this submission. In my view, such a range, as submitted by the Crown, does not adequately address considerations of parity of sentence with Ari Dimitrakis, even allowing for the fact that he pleaded guilty to an offence with a lesser maximum penalty and matters personal to him which went in mitigation of the sentence to be imposed.

30 Accordingly, having regard to current sentencing practices, the nature and gravity of the offence here committed, parity of sentence with your co-offender and all matters which go in your favour, you are convicted and sentenced, for the crime of attempted murder, to 12 years' imprisonment and I propose to order that you serve a period of 9 years before being eligible parole. I declare that you have already served by way of pre-sentence detention a period of 298 days.