R v Van Zoelen [2012] VSC 605

3 On Wednesday 21 September 2011, you and Kerry Blackwell booked a room at the Parkside Motel, Bundoora. The booking was for two people for three nights, but in fact the room was to be occupied by you, Ms Blackwell and Leon Douros. All three of you spent the next three days shopping and patronising the local hotels, drinking and playing the poker machines. There was some arguing between you and Mr Douros late on the Thursday night, but otherwise in the days and hours leading up to Mr Douros' death you and he were on good terms, as indeed is apparent from the CCTV footage taken from a service station in Bundoora at around 11.30pm on the Friday night when you and Mr Douros were seen to be at ease in each other's company.

4 On that occasion, you and Mr Douros returned to the motel room after purchasing food and drinks from the service station and commenced to drink whiskey. You admitted in your record of interview that you stood over Mr Douros and ordered him to drink several glasses of whiskey, you said as a joke. It appears that you drank three glass of bourbon and Coke, and Mr Douros drank approximately five glasses of straight bourbon or whiskey. The toxicologist's report noted Mr Douros' blood alcohol reading was 0.3, indicating a very high level of alcohol that is of a degree that can cause significant physical and mental impairment.

5 What the catalyst for your assault on Mr Douros was is not clear. It may be you took exception to "a look" that Mr Douros gave you which you described as "grumpy" and "not friendly", and which you said annoyed you, or it may be that his lifting your leg up and twisting your ankle in an endeavour to wake you as you lay on the bed, or it may be that Mr Douros hit you on the forehead with a bottle as you emerged from the bathroom, because he had wanted to keep on drinking. But in any event, whatever the catalyst, you then subjected Mr Douros to a brutal and savage assault. You admitted punching him in the face five or six times and told the police that you may have kicked him. After punching Mr Douros to the head, he fell back and hit his head on the bedside table and you continued to punch and kick him. While you were assaulting Mr Douros, Kelly Blackwell was talking on the telephone to one Donald Jackson. He told the police that he heard Leon was "kind of hitting on Kelly and Kelly wasn't having any of it and that you started getting mad about something and then all hell broke loose". He said, "I could hear punching, slapping and hitting in the background and I could hear Leon in the background begging for mercy and screaming for help."

6 Although the evidence does not establish the extent to which Mr Jackson heard the assault, this call was made at 12.36am and lasted for eight minutes. Shortly after 1.45am, you texted a friend saying that you were taking a mate to hospital and at 1.49am Ms Blackwell, in responding to a text from Jackson who had enquired if everything was okay, replied, "No it's not. I've got to take Leon to hospital".

7 In fact, Leon Douros was not taken to hospital. Instead, some time after the assault you and Ms Blackwell decided to pack up and leave the motel. You picked up Mr Douros and dragged him down the stairs and put him in the back seat of your car. You and Ms Blackwell drove to Mr Douros' home in Ellen Street, Springvale. It appears, however, that you got lost on the way and it was some time before you arrived at the house. You took Mr Douros inside and laid him on the floor and covered him with blankets and put the heater on, you said, to keep him warm. You told the police you thought Mr Douros was still alive at this time, but the evidence of the pathologist, Dr Ranson, suggests that Mr Douros must have died some time during the journey to Ellen Street. At 4.41am, you rang the emergency services and requested an ambulance. A recording of the call was played on the plea. In it you sound measured and composed. You gave the operator a false account of what occurred and relayed to Ms Blackwell the directions for CPR and resuscitation. You were heard to say, "I don't want him to go", although it must have been apparent to you that Mr Douros was, by this time, dead. When the paramedics arrived at 5.00am, you repeated the false account about what had happened to Mr Douros.

8 When spoken to by the police, you gave a statement which you later told the police contained lies. In your record of interview conducted in the presence of an independent third person, you said that Leon had come into your room and twisted your ankle to wake you up, and that he cracked you on the forehead with an empty bottle as you came out of the bathroom. You admitted punching Mr Douros five to six times to the face, and that he had a bloodied nose, and you told the police that after the assault, Leon had a shower and then went to sleep, and that while he was asleep he rolled off the bed and hit the back of his head on the bedside table. This account is not consistent with Mr Douros' injuries, and when confronted with the extent of them you admitted that your actions had caused his death.

9 The pathologist, Dr Ranson, determined that the cause of death was multiple injuries including intraperitoneal and retroperitoneal haemorrhage from ruptured liver and kidneys. Mr Douros also suffered multiple fractured ribs. Dr Ranson opined that the likely cause of all the injuries was blunt trauma and some compression trauma and that a very significant amount of force would have been required to have caused these injuries, but that the blows inflicted may not have been as many as the number of injuries observed and that a single blow may have caused multiple injuries. Dr Ranson was also of the opinion that the time in which Mr Douros would have survived the injuries without medical attention is likely to have been less than an hour. The autopsy report notes that Mr Douros was 165 centimetres tall, that is, five foot five and weighed 68 kilograms. It is to be noted that you are 208 centimetres, that is, six foot ten and weigh 158 kilograms.

10 Mr Douros was 42 years old. He was married and the father of two young boys. He had recently separated from his wife and was living at his parents' house in Ellen Street, Springvale while they were on an extended holiday in Greece. You and Ms Blackwell were also living at the Ellen Street address. Mr Douros had become involved with Ms Blackwell, whom he met on the internet 12 months earlier, and as previously stated, you had only known Mr Douros for some two weeks, having met him through Ms Blackwell whom you also met on the internet.

11 Victim impact statements made by Mr Douros' wife, Nektaria, his son, Stephen, his parents Stavros and Dimitra and his brother, Efrosini Haralambopoulos, were tendered in evidence. They each speak of their grief and sadness at the loss of a loved husband, father, son and brother, and no sentence this Court can impose can ameliorate their suffering or restore to them their loved one.

12 I turn now to matters personal to you. Your personal circumstances were detailed in reports prepared by psychiatrist Dr Danny Sullivan, dated 22 November 2012 and tendered in evidence as Exhibit 5, psychologist Mr Kevin O'Neill, in a report dated 19 November 2012 and tendered in evidence as Exhibit 4 and a report dated 27 November 2012 by psychologist, Dr Dion Gee, tendered in evidence as Exhibit 3.

13 You are 32 years old, single, one of four children. Your father died when you were nine years old and your mother has been diagnosed with a mental illness which has required hospitalisation over the years.

14 You were born and raised in South Australia in a loving family environment. Your schooling appears to have been marked by behavioural issues, including being bullied. You attended remedial classes at both primary and secondary level, but despite your learning difficulties you completed your Year 12 certificate. From there, you went to a TAFE college and completed certificates in commercial cooking and hospitality. You have been in receipt of a disability or Austudy allowance since you were 16 but you were able to work in the hotel industry performing general menial hotel work, only giving up that work in order to come to Victoria to pursue your relationship with Miss Blackwell. You have maintained an interest in sport, and since leaving school played basketball where your height was regarded as an advantage. In recent years, you were diagnosed with testicular cancer, requiring an orchidectomy and lymphoma. You have been in remission since 2007 and currently undergo six monthly checkups. You are presently awaiting a knee operation, all of which can be managed and addressed while in prison.

15 You told the police in the record of interview that you are borderline autistic and you reported to Dr Sullivan that as a child you were diagnosed with Attention Deficit Hyperactivity Disorder, insomnia and borderline autism and indeed you have an established medical history of being treated for hyperactivity and impulsivity. At the age of four, you were treated with antipsychotic medication, apparently for the management of attention deficit and hyperactivity disorder and at the age of 10 you were assessed as having features of autism spectrum disorder and Asperger's Disorder. You were also then assessed to be marginally above the range of intellectual disability. You were prescribed various medications from childhood right through to your twenties, including Ritalin, Dexamphetamine, Lithium, Ligactol and Seroquel.

16 In Dr Sullivan's opinion, you do not present with a psychotic or mood disorder and you do not appear to have a supervening personality disorder. Dr Sullivan assessed you as being of low average IQ. He was of the opinion that you portray a number of features of autism spectrum disorder, and he was satisfied that you met the criteria for a diagnosis of Asperger's disorder. You are articulate and, in Dr Sullivan's words, have high language use, but your adaptive functioning is below the normal range, and significantly impaired, and this is reflected in your ability to manage problem solving and daily living skills. In Dr Sullivan's opinion, it was very likely that your problem solving skills and difficulties in social interaction were associated "at some level with the offence", in particular your capacity to respond appropriately, which is determined by your ability to read an emotion, to walk away or to appreciate when someone is being jovial, rather than aggressive, but it was not, he said, a strong causal connection. In Dr Sullivan's opinion, some people with Asperger's disorder cope well with rigidity and structure. Nonetheless, you may be more vulnerable to the influence of others and be regarded as an easy target in the prison environment and, in this way, the Asperger's disorder will impact upon your placement in prison and I note in this regard that you have already been accommodated in a unit designed for the intellectually disabled. Such was your presentation to the Correctional authorities, and you have been reported as being more needy than other prisoners. The disorder is lifelong, but will not deteriorate. Nonetheless, Dr Sullivan was of the opinion that there were guarded prospects for your rehabilitation if you are provided with psychological and social support, and possibly medication.

17 Mr O'Neill, after conducting an interview with you and performing various tests and assessments, confirmed the diagnosis that you suffer from an autistic disorder of which Asperger's is a subcategory, and Dr Gee, in his report, also opined that your presentation was consistent with a pervasive development disorder of which Asperger's disorder is an example, but that you do not, however, meet the criteria for intellectual disability. He reported that you fall within the average range of cognitive function, but that you present with substantial impairments in adaptive functioning.

18 I take into account all of these matters concerning your antecedents and personal circumstances.

19 The maximum penalty for the crime of manslaughter is 20 years' imprisonment. Clearly, this is a serious offence, involving as it does the unlawful killing of another human being. Your counsel has submitted that your offending sits within the middle of the range of offences of this kind, but in my view, this is a bad case of manslaughter.

20 Your conduct in brutally assaulting Mr Douros, resulting in his death, although impulsive and spontaneous, was nonetheless senseless. You told the police that you were angry, one of the reasons being that Mr Douros had "cracked you on the head with an empty Jim Beam bottle". Dr Sungaila, the forensic medical officer who determined that you were fit to be interviewed, observed a one centimetre abrasion on your forehead at the hairline, with an area of surrounding tenderness, consistent with your allegation. Nonetheless, you are six foot ten inches tall, 208 centimetres, and weigh 158 kilograms. You were considerably taller and bigger than Mr Douros, and his assault on you, such as it was, must be placed in this context. Further, the blows required to inflict the injuries to Mr Douros, apart from the compressive injuries, suggest that you gave full vent to your anger and persisted in the assault, despite Mr Douros' pleas for mercy. Further, having inflicted those injuries, it must have been obvious to you that Mr Douros required medical treatment, yet you failed to take him to hospital, and it was some time later that you sought to obtain medical assistance when, by then, it was too late.

21 Any sentence imposed must therefore give due consideration to the nature and gravity of the offence here committed and your role in it. Such sentence must also act in denunciation of your conduct and serve to punish you. The sentence must, of course, give due weight to considerations of specific and general deterrence and the need to protect the community from you. I accept that your moral responsibility is to be reduced on the application of the principles of Verdins by reason of the Asperger's disorder, but that reduction is to be only to a limited degree. Likewise, considerations of specific and general deterrence are to be appropriately moderated, because although the evidence of Dr Sullivan is that there is a link between the offending and the Asperger's disorder, it is not, in Dr Sullivan's opinion, a strong one. I accept, however, that the Asperger's disorder will impact upon the way in which you serve your prison sentence.

22 In sentencing you I take into account your plea of guilty and give you a discount for it. I take into account that your plea of guilty has facilitated the course of justice, saved the community the cost of a trial and the witnesses the ordeal of one. I take into account that you offered that plea prior to the committal hearing and that the issues canvassed at the committal enabled the Crown to more properly accept your plea of guilty to manslaughter. I take into account also that you accepted your responsibility for killing Mr Douros in the record of interview.

23 I accept also that by reason of the Asperger's disorder you are unable to express true remorse, but I accept that you acknowledge your responsibility for killing Mr Douros and the senselessness of it, and that you regret your actions.

24 I take into account your age and that at the age of 32, you are still a relatively young man and that you have only been before the courts on two previous occasions and they have been for minor matters, so that you are otherwise a person of good character and, at the age of 32, you will be serving a sentence of imprisonment for the first time, and a significant one at that. I take into account that you have the continued support of your family, who are resident in South Australia, and that until and unless you are transferred to that State, your prison sentence will be served without the ameliorating comfort of visits from family and friends, and in particular your mother, with whom you are said to be close.

25 I take into account that Asperger's disorder, being a sub-category of autism, is a lifelong condition and that, while you may benefit from appropriate psychological therapy and social supports, the condition will not abate. Therefore, you will always have difficulties with impulsive behaviour and regulation of it and this must impact upon your prospects for rehabilitation and the likelihood of you presenting as a further risk to the community. Nonetheless, you have been able to maintain at least menial employment, complete your secondary studies and various vocational courses. You are literate and very articulate, but nonetheless, the Court must be cautiously guarded about your prospects for rehabilitation.

26 Your counsel has submitted that a longer than normal period on parole is here appropriate, so as to avail yourself of behavioural therapy and the like in the community, which may not be available in prison. However, your condition is life-long, it will not abate, and it is unlikely to deteriorate. Further, you have been able to avail yourself of vocational courses while in custody and behavioural programs are also available to you. For these reasons, I do not regard a longer than normal period on parole as appropriate.

27 Accordingly, for the crime of manslaughter, you are convicted and sentenced to eight and a half years' imprisonment and I order that you serve a period of five and a half years' imprisonment before becoming eligible for parole.

28 I declare that you have already served a period of 446 days by way of pre-sentence detention and I declare that, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), were it not for your plea of guilty, I would have sentenced you to ten and a half years, with a non-parole period of seven and a half years.