REGINA v. HARRISON & GEORGIOU [2003] NSWSC 1240

CITATION : REGINA v. HARRISON & GEORGIOU [2003] NSWSC 1240 HEARING DATE(S) : 26/02/03-28/02/03; 03/03/03-06/03/03; 10/03/03-13/03/03; 17/03/03-20/03/03; 24/03/03-17/03/03; 31/03/03-04/04/03; 07/04/03-09/04/03; 06/06/03; 24/10/03; 30/10/03; 19/12/03 JUDGMENT DATE : 19 December 2003 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : For each of the offences of murder, each offender is sentenced to imprisonment for a period of 33 years. In each case there will be a non-parole period of 28 years. The offender Harrison's sentence and non-parole period is to date from 9 November 1997. The offender Georgiou's sentence and non-parole period is to date from 3 February 2002. The earliest date the offender Harrison will be eligible for release on parole is 8 November 2025. The earliest date the offender Georgiou will be eligible for release on parole is 2 February 2030.

CATCHWORDS : Criminal law - sentence - multiple murders - single episode - previously sentenced for same crimes to determinate sentences - previous sentences set aside following offenders' successful appeals - presently convicted of a lesser number of crimes - persuasive effect of previous order - whether criteria for life sentences met - discretion not to impose life sentence. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Georgiou [1999] NSWCCA 125 CASES CITED : Harrison & Georgiou [2001] NSWCCA 46 Harris (2000) 50 NSWLR 409 Pearce (1998) 156 ALR 684 PARTIES : REGINA v. HARRISON, Bruce Malcolm; REGINA v. GEORGIOU, Konstantinos FILE NUMBER(S) : SC No. 70105 of 2001;; No. 70217 of 2001 Crown: W. Robinson, QC. COUNSEL : Harrison: P. Bodor, QC. Georgiou: G. Wendler Crown: S.E. O'Connor SOLICITORS : Harrison: Michael Croke & Co. Georgiou: Xenos Jordan

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

REGINA v. BRUCE MALCOLM HARRISON REGINA v. KONSTANTINOS GEORGIOU

1 HIS HONOUR: On 9 April 2003, following a lengthy trial before me, verdicts of guilty on each count of murder were returned by the jury against each of the offenders, Bruce Malcolm Harrison and Konstantinos Georgiou. 2 Subsequently, I have received lengthy submissions orally and in writing from the Crown and from counsel for the offenders in respect of the appropriate sentences to be imposed. The offences of which the offenders were convicted in each case have been the subject of numerous proceedings in this court and in the Court of Criminal Appeal. 3 The offenders and in particular Konstantinos Georgiou have been engaged in litigation concerning these offences for a very long period of time now. The short facts of those offences are to be found set out in judgments of the Court of Criminal Appeal of 25 May 1999 in Regina v. Georgiou [1999] NSWCCA 125; in the judgment of the Court of Criminal Appeal following the appeal from the trial before Dowd, J. as to the convictions that occurred on 22 August 1999, that being Regina v. Harrison and Georgiou [2001] NSWCCA 46; the judgment of 21 November 2001 which has been referred to in my interlocutory judgments during this trial; in the judgment of Sperling, J. on a separate trial application; and in the remarks on sentence of Dowd, J. following the convictions to which I have referred. 4 Notwithstanding that those facts have been referred to in those judgments again and again, I will refer to them again here shortly. There is, however, a substantial difference between the legal position and the factual position as it was seen to be following the convictions recorded by Dowd, J. and those which I record in respect of each of the offenders on the verdicts found by the jury in the proceedings before me. 5 Before Dowd, J. at the trial then occurring, the jury found each of the offenders guilty of an additional count to those which were found against them in the proceedings before me, that being one count of attempted murder of Robin David. During the trial before me, I acceded to submissions that there was insufficient evidence in law to warrant that count being left to the jury. I published a short judgment concerning that matter. Essentially, I was of the view that the evidence did not permit me to conclude, as Dowd, J. had concluded, and to which conclusions he referred in his remarks on sentence, that it was open to the jury to conclude that Robin David had gone down into the cellar and had been shot at with intent that he be killed. Consequently, I took the course that I did. 6 Shortly, that leaves against each of the accused verdicts of guilty of the intentional murders of the three victims, Rick De Stoop, Sasha Milenkovic and Michael Kulakowski. These killings occurred in the basement of the Black Market Café in Chippendale. I concluded, although Dowd, J. did not, that all three of those killings were deliberate executions which took place in that cellar when there were present in that cellar the three deceased, the two offenders presently before me and possibly others. There is no doubt that two guns were used in the shooting. There is no doubt that at least two persons participated in the shooting, these being the two offenders whom I must now sentence. 7 There is no doubt that heavy calibre guns were brought to the scene for the purpose, no doubt, of being available to shoot with the intention of causing grievous bodily harm or killing. There is no doubt that whilst the offenders were fleeing from the scene those guns were thrown out or away and there is no doubt that those guns had been supplied to the motor cycle club of which the offenders were members by Mr. Georgiou, some considerable time beforehand. 8 I am unable to say, however, that the deliberate executions to which I have referred occurred as a result of a plan to kill, to which the offenders were party, which had been devised much earlier. I have no doubt that what occurred envisaged that there might be a necessity to use, against the three deceased, the heavy calibre weapons that had been brought to the scene and thus that whatever it was that had given rise to what occurred down in the cellar included in the mind of each of them at least a realisation that a shooting, or shootings and consequent killings may well occur but I am unable to ascertain what it was, whether as Dowd, J. adverted to, some commercial dispute over the door takings at the club, or whether it was some personal dispute over the affections of a young lady who gave evidence in the proceedings, or whether it was some matter of protocol relating to the display of club colours and club presence, or whether it was some disputed matter by either geographical, commercial or prestige territory in the area which caused all this. Whatever, I am left unable to say that what had occurred in the cellar, although highly likely to have been a previously planned execution to which the deceased were lured, was not a killing or killings which arose at the scene as a result of some attempt to reach some agreement, or to discuss some proposition which went awry. 9 There is evidence of the use of another or other firearms in the cellar. I am unable to say how that came about or in what manner or by whom that firearm was used. On that basis I have concluded that I do not disagree with the view of Dowd. J, although he expresses his view as an affirmative finding, that there was not a planned execution, or expresses in the same passage the view that he could not be satisfied that there were deliberate executions, since I understand that finding to mean that his Honour was not satisfied beyond reasonable doubt that there had been planned in advance a scheme designed to kill, no matter what might otherwise have occurred, the three deceased in the way in which they were killed. 10 That finding is quite crucial, in my view, to the exercise of the discretion not to impose the life sentence that I reach some such conclusion, as did Dowd, J., by my own independent reasoning as both views and the common conclusion mitigate against the imposition of the life means life penalty. 11 In Dowd, J.'s remarks on sentence he has examined the factual material in great detail. He has had regard also to the subjective circumstances of the offenders. Generally, it is not sought here on behalf of the Crown, or on behalf of either of the offenders that I should differ except in relation to the attempted murder count from his Honour's views, or that the evidence except in one other respect shows any material alteration in the circumstances. That respect relates to the offender Georgiou. 12 When, following the trial before Dowd. J, that offender subsequently appealed against conviction, the sentence imposed upon him was set aside. He was thereafter sentenced by Judge Shillington in the District Court on eight counts of offences, including supply prohibited drugs, including methylamphetamine and cocaine and the possession of prohibited weapons: a butterfly knife, an electrical discharge device and a nunchaku and lastly possessing a prohibited article, to wit, handcuffs. 13 He had been sentenced for those offences after a jury trial in which he had pleaded not guilty. The proscribed material had been found in premises occupied by him. The trial judge concluded that he had been dealing in drugs on a large scale and that what was found in the premises evidenced that dealing. The things found were plainly the impedimenta of a drug dealer. The dealing had, apparently, occurred in conjunction with other persons. Those persons had been dealt with for other offences in South Australia. The trial judge had regard to those matters and to those sentence imposed in South Australia in order to afford some degree of context to the sentences he imposed. The offender had, as the trial judge referred to, some prior record but of a limited kind and, in particular, in the Children's Court. His record before me in respect of prior offences includes, of course, this matter before Judge Shillington and those matters. The Crown on that occasion submitted to Judge Shillington that he should commence the sentence he imposed on the date on which the offender was taken into custody for the three murders for which he now must be sentenced. 14 Judge Shillington said this:- "The Crown has contended that the sentences imposed on these matters by me should not be backdated. The difficulty which I see in this approach is that if, on his forthcoming trial, he is found not guilty, the prisoner could no longer complain that the backdating should have occur. In the event of a conviction after the forthcoming murder trials, the sentencing justice would have available complete flexibility options for sentence. I therefore propose to backdate the sentences to 3 February 1998. I take the view that the crime should be regarded globally being activities carried on at the same time and relating to the business in my view of large scale drug dealing." 15 It was in that context that Judge Shillington sentenced the prisoner to a term of eight years imprisonment on three of the charges. Those terms to be served concurrently to date from 3 February 1998. He imposed a non-parole period of six years. He sentenced the prisoner on other counts to concurrent sentences. He found no special circumstances. 16 In this matter, it is accepted that should I impose determinate sentences as Dowd, J. did, I should have regard to the sentences imposed by Judge Shillington which should at least to a substantial extent remain effective That will require substantial accumulation and the application of the principle of totality so that should the sentence I impose be of the order of that which Dowd J imposed, it will still be necessary to ensure that Judge Shillington's sentence is not deprived of its significance and that it sufficiently marks the criminality of the conduct to which it was referable. That, however, does mean that since I would be imposing a sentence which would be cumulative upon the sentence which Judge Shillington imposed, that same degree of overlap by way of part cumulation and part concurrence should be provided to afford recognition to the total effect of all the sentences the prisoner will have to serve. 17 I am of the view that no lesser period than four years non-parole, even having regard to the totality principle, should be afforded in respect of the sentences imposed by Judge Shillington. That means that I would conclude that the sentence to be passed for this offence should commence on 3 February 2002 in Mr. Georgiou's case were I to impose the determinate sentences for the murders. 18 The sentence in Mr. Harrison's case should commence on 9 November 1997. 19 The principal issue with which the sentencing proceedings before me have been concerned is whether bearing in mind that Dowd, J. sentenced the offenders and each of them on the three counts of murder, to which I have referred, to determinate sentences of imprisonment in each case of 33 years with a non-parole period of 28 years to be served concurrently and there was no Crown appeal against such sentences. 20 Yet, the offenders successfully appealed on a legal misdirection to the Court of Criminal Appeal, so that they came back for a new trial. 21 Should I impose sentences more severe than those imposed by Dowd, J? Although there were submissions indicating matters, including the absence of any conviction on the charge of attempted murder of Robin David, on the basis of which it was submitted I should impose lesser sentences, I find nothing in the material which would in any way guide me to consider any lesser sentence should have been imposed or should now be imposed by me. 22 Before dealing with the principal issue, it is now incumbent upon me when sentencing to have regard to the matters set out in s.21A of the Crimes (Sentencing Procedure) Act 1999 which provides for aggravating and mitigating factors that should be considered by the court if known to the court and the objective and subjective factors that might be taken into consideration. The submissions before me on sentencing have all accepted either expressly or implicitly that every one of the aggravating or mitigating factors to which s.21A refers were taken into account by Dowd, J. in his sentencing exercise at the conclusion of the first trial. 23 It is obvious that many of the aggravating factors to which s.21A(2) refers exist in this case, including the use of violence, a weapon, the offence being committed in company, the offence having been committed without regard for public safety, the vulnerability of the victims, the multiple victims and series of criminal acts and that the offence was part of some kind of planned or organised criminal activity, although as to that latter, I reiterate I am not satisfied beyond reasonable doubt that the murders themselves were previously planned as opposed to being contemplated. There is little by way of mitigation to which s.21A(3) refers that might be taken in aid of mitigation of penalty in favour of the offenders. 24 In particular, there is no plea of guilty. The only pre-trial disclosure in this case of any substance was when the prisoners, by their own admission before me, revealed they had lied at their previous trial concerning the circumstances in which they then asserted their lack of involvement in the offences. There is no remorse or contrition shown and no possible basis upon which any reparation for the crimes of this magnitude might be made. 25 Those things being said, I accept and I understand all parties accept that except in the respects I have referred to, Dowd, J's detailed and, indeed, on its face, as I see it, exemplary judgment, records all the matters of relevance to which I have been referred. 26 In the Crown's detailed written submissions, it was asserted that I should exercise an independent sentencing discretion. So much, of course, I accept. It is for me to exercise the sentencing discretion on the facts and submissions before me and in accordance with principle but in accordance with my own views. However, it is in accordance with principle that I should have regard to two important matters: the first being that as a matter of policy for the better guidance of the exercise of such discretion, a court would have regard to the fact that a prior sentence passed by a Supreme Court judge, after full consideration of all relevant material, would be a matter of considerable importance, to which in the proper exercise of discretion, considerable weight should be given. 27 Further, there is another principle which has been adverted to in a deal of the case law debated before me. Whether it be regarded as a principle or a policy matters not for the purposes of this decision. That is that a party who successfully appeals their conviction should not find that as a consequence of that conviction being overturned on appeal, that they are liable to a more severe sentence than the sentence originally passed unless the circumstances had relevantly or materially changed to their detriment. This is not that case. 28 It is not necessary for me to explore the decisions to which the Crown has taken me as enunciating a proposition of law. It is common ground they do not. These two matters to which I have referred are policy matters which govern the proper exercise of the discretion. 29 The sentencing regime for murder in this State provides that for crimes of great heinousness, a sentence of life imprisonment may be passed. That sentence may only be passed in the event that the crime or crimes accord with the criteria established in s.61 of the Crimes (Sentencing Procedure) Act 1999. That section provides that the court may only pass a sentence of life means life if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, and community protection and deterrence can only be met through the imposition of that sentence. When it comes to consider whether those criteria are satisfied, a court must have regard to the prior decisions of the judges of that court sitting in like matters. It is a matter of great importance that having regard to the applicability of the criteria to established facts, that an earlier Judge on the same facts in the same matter has concluded that the criteria are not met. 30 I am not prepared to take the view in this case that they are met. Particularly am I not prepared to determine that the life sentence must be passed in these two cases and on these three charges because the New South Wales Court of Criminal Appeal in Regina v. Harris (2000) 50 NSWLR 409 has determined that even if the criteria are met, there remains a discretion to be exercised in accordance with ordinary principles for the court to refrain from the passing of the sentence of life imprisonment. The two principles or policies to which I have referred, I would regard as particularly important when coming to consider that question. That leaves by way of discussion of the matter at a level of principle, as I have presently been undertaking, the question of whether some longer or shorter determinate sentence might be passed other than the sentences imposed by Dowd, J. I have concluded, as I have said, that no shorter sentences could be said to be appropriate on the factual material before me. Having regard to the exercise of my own independent discretion, putting aside Dowd, J.'s views, and taking them into account, I conclude also that no shorter sentence might be imposed. 31 As to any longer sentence, the one matter that might speak in favour of a longer sentence, is that before me each of the offenders went into the witness box, admitted that they had lied at their previous trial, falsely swearing at that trial to facts said to show their innocence of the offence which they before me admitted to be untrue. In the trial before me, they also swore to facts which it might be are closer to the truth bearing in mind, however, their admitted lies and the objective evidence in this case but which were plainly not the full true story. There was very little of what they said which was exculpatory or mitigatory that I would be minded to accept. About all that I am prepared to accept is that they embarked on this exercise of going to the Black Market Café with heavy calibre weapons as part of some exercise involved in the same way with the motor cycle club of which they were members and influenced to some extent by one of the senior members of the club. Although I am not prepared to conclude they were influenced to the extent that they went reluctantly. 32 That said, it seems to me that having regard, particularly to the fact that they have not been convicted of as many offences as they had been before Dowd, J. but, otherwise, that their conduct is very much the same as it was held to be by him and having regard to the fact that it is accepted that although they gave evidence before me that they had previously lied, I should not include in the sentences that I pass upon them any component relevant to their commission of the offence of pervert the course of justice or perjury since I pause to remark that I am informed they have been charged with those offences but not yet dealt with, it does not seem to me that I should pass a sentence having a proper appreciation of the factual material on my own behalf and the benefit of that appreciation of the factual material referred to by Dowd, J., that is any more extensive than the sentences Dowd, J. imposed. 33 These were three appalling crimes. They have left a number of people devastated. They have taken place in circumstances which show that the offenders have committed acts of ruthlessness and callousness which might not have been by them at least by way of prior deliberate planned intent but which in their execution were accompanied by brutal ruthlessness. The sentences involving as they do periods of imprisonment of at least 28 years in respect of each death, are very long sentences. Nonetheless, in my view, for those offences those sentences are well merited.

HIS HONOUR: Madam Crown, Mr. Bodor, Mr. Wendler, is there any additional matter whether by any matter of law or any matter upon which you might wish to address that you might wish me to take into account, my having given the reasons that I have so far before I pass sentence in these matters.

I give you that invitation at this point since the sentencing proceedings have been so long interrupted and have extended over such a period? I have exposed in the remarks I have made so far my intent subject to hearing from you any further.

ROBINSON: Hearing my friend Mr. Wendler, I also have nothing.

HIS HONOUR: I note that having made the remarks that I have, the Crown Prosecutor at the conclusion of Mr. Wendler's concession that he wishes to raise no further matter concerned with his client's custody and having heard his further concession today that there is nothing further he wishes to say in regard to the matters to which have I referred, has expressed herself as also content. 34 Mr. Harrison and Mr. Georgiou, would you rise please. For each of the offences of murder of which the jury found you guilty and of which I have and do convict you, I sentence each of you to imprisonment for a period of 33 years in each case with a non-parole period of 28 years. Mr Harrison in your case the sentences and the non-parole period are to date from 9 November 1997. Mr. Georgiou, in your case the sentences and the non-parole period are to date from 3 February 2002. Please sit down. 35 I add to what I have said that I am cognisant of the principles referred to in the High Court's decision in Regina v. Pearce (1998) 156 ALR 684. That decision requires that a judge consider for each individual offence the specific sentence that must be passed for that offence and then give consideration to the cumulation or concurrency of those sentences so as to produce an appropriate totality. Normally, it is not appropriate to simply pass a sentence for all crimes of an identical kind and to order complete concurrence. 36 Dowd, J. took that course. I take that course in this case because this was one continuous and short episode of linked criminality involving three murders committed at the one time by the one group of people, for whatever it was, the one objective and because the total sentence that has been imposed has been imposed to reflect that criminality.

HIS HONOUR: The offenders might be removed. **********

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