Regina v Patsalis & Spathis

Supreme Court of NSW|1999-06-28|Before: Kirby J, Hunt CJ, Gleeson CJ, Mason P, Hidden JJ

New South Wales Supreme Court CITATION : Regina v Patsalis & Spathis [No 22] [1999] NSWSC 1320 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70002/97; 70200/97 28 June 1999 - 30 June 1999 2 July 1999 5 July 1999 - 7 July 1999 12 July 1999 - 14 July 1999 19 July 1999 - 23 July 1999 27 July 1999 2 August 1999 - 6 August 1999 9 August 1999 HEARING DATE(S) : 11 August 1999 - 13 August 1999 16 August 1999 - 20 August 1999 23 August 1999 - 27 August 1999 30 August 1999 - 31 August 1999 1 September 1999 - 2 September 1999 6 September 1999 - 10 September 1999 13 September 1999 - 17 September 1999 20 September 1999 - 24 September 1999 1 October 1999 14 December 1999 JUDGMENT DATE : 23 February 2000

Regina PARTIES : v Michael Patsalis Alexios Spathis JUDGMENT OF : Kirby J

P Power (Crown) COUNSEL : J Amor-Smith (Patsalis) D Campbell (Spathis) K Roots (Crown) SOLICITORS : Coustas & Co (Patsalis) Hancock Alldis (Spathis) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE; Sentencing felony murder; Assistance to authorities s442B Crimes Act; Special Circumstances ACTS CITED : Crimes Act, 1900 - s442B, s556A Sentencing Act, 1989 - s5(2) Savvas v The Queen (1995) 183 CLR 1 The Queen v Olbrich [1999] HCA 54 R v Isaacs (1997) 41 NSWLR 374 R v JB (Hunt CJ at CL, unreported, 20/11/97) R v P M Mills (CCA, unreported, 3 April 1995) CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Cartwright (1989) 17 NSWLR 243 R v Hayes (1981) 3 A Crim R 286 R v Downey (1997) 97 A Crim R 41 R v Farouk (CCA, unreported, 29 March 1996) R v Phelan (1991) 66 A Crim R 446 DECISION : Refer Paras 81 and 82

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

70002/97 - REGINA v Michael PATSALIS 70200/97 - REGINA v Alexios SPATHIS

1 HIS HONOUR: On Friday 24 September 1999, Mr Michael Patsalis and Mr Alexios Spathis were each found guilty of the murder of Klaus Peter Ludwig. Mr Ludwig died on 11 April 1996 at Botany. 2 The matter was then adjourned until 14 December 1999 for submissions on sentence. Those submissions having been made, it remains for me to determine the facts (in a manner consistent with the verdict), and pass sentence. 3 The facts which must be determined are those material to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1). That determination should include any relevant difference in the role of each prisoner in the death of Mr Ludwig, if that is capable of being ascertained (cf The Queen v Olbrich [1999] HCA 54 at 5 (paras 13-16)). The other principles which must guide my determination of the facts are conveniently set out in R v Isaacs (1997) 41 NSWLR 374, where the Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) said this: "4. … findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184." 4 Here there is a considerable body of material relevant to the circumstances in which Mr Ludwig died. Mr Patsalis and Mr Spathis each provided lengthy interviews to the police. Each gave evidence at the trial. Neither gave evidence on sentence. In some important respects their accounts correspond. In others they differ markedly. I will begin by identifying the common ground.

The Common Ground 5 Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig's murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig. 6 Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes. 7 The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00 pm at Mr Patsalis' flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly. 8 Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone. 9 Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany. 10 At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis. 11 Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day. 12 The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body. 13 The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area. 14 The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed.

The Crown Case 15 The Crown contended, and the jury accepted, that both Mr Patsalis and Mr Spathis were responsible for Mr Ludwig's murder. The Crown case was put in three ways. · First, a joint attack by both accused. Two knives had been purchased. Mr Patsalis and Mr Spathis were arranged on either side of Mr Ludwig. The wounds were consistent with both knives (or either knife), although it was not possible to say, simply based upon the wounds, whether they came from the left or the right, or from both directions. · Secondly, a joint criminal enterprise to either rob and/or murder Mr Ludwig. If the agreement was to rob, it was the Crown case that the accused who did not do the stabbing was aware of the possibility (amounting to a substantial risk) that, in the course of the robbery, his co-accused may intentionally kill, or cause grievous bodily harm, to the person being robbed, Mr Ludwig. · The third basis upon which the Crown suggested that both accused were responsible, was felony murder, either as the person who stabbed the deceased, or "… being aware that the co-accused was armed with a knife, the accused was aware that there was a substantial risk that his co-accused might immediately before, during, or immediately after the commission of the robbery, stab (the victim) seriously injuring him or killing him."

Submissions on Felony Murder 16 The jury verdict does not, of course, disclose the basis upon which the jury arrived at its verdict. Is there a basis upon which one can differentiate between the two prisoners, in terms of their culpability? It was submitted on behalf of Mr Spathis that there are differences in the criminality attaching to each alternative, and the possible role of each prisoner within those alternatives. A joint criminal enterprise to murder is worse, it was suggested, than a joint criminal enterprise to rob whilst armed. The culpability of the person who fires the bullet, or wields the knife, is greater than that of the person who simply appreciates that there is the possibility (amounting to a substantial risk) that his co-accused may act in that way. 17 Counsel for Mr Spathis selected felony murder as the least reprehensible alternative. The Crown, it was suggested, could not establish beyond reasonable doubt that Mr Spathis was the person who stabbed Mr Ludwig. Counsel, in these circumstances, made the following submission: "In other words sentencing, it is submitted, ought proceed on the premise that being the one who did not do the stabbing Spathis was (at the time of his participation in the robbery) aware that his co-accused was carrying a knife, with there being a possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab Mr Ludwig, wounding him." 18 Counsel added: "The submission … is not intended to assert that the sentencing tribunal would find as a fact beyond reasonable doubt that Patsalis in fact inflicted the wounds. That may be a finding which can be made (however, it is not the purpose of these submissions to make a positive case against Patsalis). Alternatively, it may be the court is undecided and thus should give the benefit of doubt to each prisoner." 19 Whilst I believe it was open to the jury to regard Mr Ludwig's death as the consequence of a joint attack, I do not make that finding. Nor am I able to say, beyond reasonable doubt, that it was Mr Patsalis rather than Mr Spathis who stabbed Mr Ludwig, or Mr Spathis rather than Mr Patsalis. 20 However, I do not believe that I should approach the matter in the way suggested. In the context of felony murder, Hunt CJ at CL in R v JB (unreported, 20 November 1997) said this: (at p 17/18) "The courts have resisted any attempt to formulate a hierarchy between the various categories of murder, and the assessment of the particular offender's moral culpability for a murder cannot depend simply upon the category of murder involved; each case must be considered in the light of its own particular relevant facts." 21 Further, in R v P M Mills (CCA, unreported, 3 April 1995) Cole JA (with whom Gleeson CJ and Sperling J agreed), said this: (p 3) "… this was a felony murder; it was not the firing of a fatal shot with intent to kill or to inflict grievous bodily harm. It was said that a felony murder not involving those elements was of lesser culpability than one in which there was the intent to kill or to inflict grievous bodily harm. No authority was able to be cited for that proposition." 22 His Honour did not accept that proposition. Gleeson CJ, in the same case, added: (at p 4) "The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence than applies to intentional killing. I would reject that premise." 23 Both Mr Patsalis and Mr Spathis were convicted by the jury of murder. The fact that the assassin, or assassins, cannot be identified beyond reasonable doubt provides no warrant for approaching the sentencing task upon the basis suggested by counsel, that is, assuming the most favourable possible construction, from the viewpoint of each prisoner (The Queen v Olbrich at p 4/5, para 12-23). Rather, the enquiry should be into the objective gravity of the crime, and the nature of the deliberate acts of each prisoner (so far as these can be determined) which played a part in the death of the deceased.

The Gravity of the Crime 24 By any standard, this was a cold-blooded and shocking crime. The deceased was lured into a trap. He was alone. There was no suggestion that he was armed. He was out-numbered. He was taken at night to a deserted location where he was attacked. He was repeatedly stabbed, such that he died almost at once. Counsel for Mr Spathis submitted that the wounds suggested frenzy, and were consistent with panic. Certainly, there were multiple wounds, front and back, and to the head. The victim was given no chance. There is nothing in the evidence which suggests panic to my mind. Mr Ludwig was deliberately slain where he sat, between Mr Patsalis and Mr Spathis.

Premeditation 25 The Crown asserts that the crime was premeditated, and that is a circumstance of aggravation. Counsel for Mr Spathis sought to refine the issue by asking what crime was planned? It was said, on behalf of Mr Spathis, that the Court should not find beyond reasonable doubt that there was premeditation of murder. Rather, the crime in contemplation, in respect of which there was planning, was robbery, where one at least of those involved was carrying a weapon. Although the same submissions were not made on behalf of Mr Patsalis, the same issue arises. It requires an examination of the events which preceded the stabbing. 26 It was Mr Patsalis who befriended Mr Ludwig. He sought to gain his confidence. They met a number of times at the Restwell Parade coffee shop, and at the Bankstown Sports Club. Mr Patsalis gave evidence that, on Saturday 6 March 1996 (five days before the murder), he discussed at length the purchase by Mr Ludwig of contraband cigarettes for cash. I have no doubt that he persuaded Mr Ludwig to become involved. He did so, knowing that there were no cigarettes on offer. 27 Mr Patsalis' purpose, rather, was crime. I will leave to one side, for the moment, the nature of that crime. Certainly, his purpose included robbing Mr Ludwig of the cash which he was required to bring to a meeting which was then organised. 28 Mr Patsalis gave an account to the jury which involved Mr John Spathis, an uncle of Mr Alexios Spathis. He said that he believed, as Mr Ludwig believed, that Mr John Spathis had available a large consignment of contraband cigarettes. He described discussions with Mr John Spathis, before the murder, concerning such cigarettes. Mr John Spathis, it should be said, had a small supermarket at Ashfield. He stocked, amongst other things, cigarettes. Mr Patsalis said that Mr John Spathis had told him that he had spoken to Mr Ludwig. 29 It is reasonable to suppose that the jury rejected Mr Patsalis' account. It is hardly surprising that they should have done so. It was implausible. In a lengthy interview to the police upon his arrest, Mr Patsalis made a passing reference to Mr Alexios Spathis' uncle. He did not include the detail of the matters which were to emerge as his "defence". His account, moreover, was not supported by the text of the letter Mr Ludwig left behind, written the day before his murder (Exhibit AX). I repeat, that I have no doubt that Mr Patsalis knew full well that there were no cigarettes on offer, and that he was luring Mr Ludwig into a trap. 30 I have made reference already to the purchases which were made on the afternoon of 11 April 1996, the day Mr Ludwig was murdered. The meeting with Mr Ludwig was arranged for 5.00 pm. As it happened, he was late. He arrived shortly after 5.30 pm. Between 3.45 pm and 4.38 pm a number of items were purchased. The times of each purchase can be fixed with precision by reference to the computer print-out of the cash registers within the stores from which the purchases were made. The items purchased were as follows: · At 3.35 pm from BBC Hardware, Yagoona, two pairs of gloves, and one blue tarpaulin/ground sheet. · Between 4.00 pm and 4.20 pm, a can of petrol from a Mobil service station at Yagoona. · At 4.38 pm at K-Mart, Bankstown Square, two knives (one with a 7 inch blade and the other with a 9 inch blade), each within a protective knife sharpener, which was like a scabbard. 31 It may be helpful if I first state the position of each prisoner in respect of these purchases. Mr Patsalis acknowledged that he made the first purchase (at 3.45 pm). Mr Spathis was not present. Mr Spathis denied knowledge of the gloves. He saw the blue tarpaulin, but thought nothing of it. 32 Mr Patsalis also made the purchase of the can of petrol. He did so on the instructions of Mr Spathis. Mr Spathis acknowledged having given those instructions. They were given because he noticed his car was running low on fuel. Mr Spathis said that he did not enter the petrol station because he was aware that petrol stations have video surveillance. He had no wish to be filmed in circumstances where he was assisting in a transaction which involved contraband cigarettes. The petrol was in a 5 litre tin. It was put in the boot. It was not added to the tank. 33 Mr Patsalis was present when the knives were purchased from K-Mart. He insisted that they were purchased by Mr Spathis. He was sufficiently concerned to enquire of Mr Spathis as to his purpose. He was told that they were required for Mr Spathis' business at the hotel. That explanation satisfied him. 34 Mr Spathis denied having purchased the knives. He waited in the car park at K-Mart whilst Mr Patsalis made the purchases. When Mr Patsalis returned to the car, he was carrying a shopping bag. Mr Spathis asserted that he was not aware of the contents of the shopping bag, namely the knives, before the stabbing. 35 Mr Patsalis therefore knew of each purchase; the two pairs of gloves, the tarpaulin, the petrol and the knives. He said he had no appreciation of the purpose of these items, and specifically their connection with the crime which was about to occur. The jury verdict may be taken as a rejection of that assertion, at least in respect of the knives. The jury was directed that it was an essential circumstance in the Crown case that each accused should have known of the knives, or at least one knife, and should have been aware of the possibility (amounting to a substantial risk) that his co-accused may use the knife to rob Mr Ludwig or cause him serious harm. 36 The Crown attached considerable significance to the purchases made that afternoon. The purchase of two knives and two pairs of gloves pointed to a joint criminal enterprise between Mr Patsalis and Mr Spathis, in its submission. 37 The goods purchased, moreover, defined the nature and scope of the enterprise according to the Crown. They were the tools for the night's work. The knives were to attack Mr Ludwig. The gloves were to avoid fingerprints. The petrol was to burn the body and the truck. The tarpaulin was ultimately used that evening to protect Mr Spathis' car. Mr Patsalis' trousers were soaked in blood. The tarpaulin prevented the transfer of that blood to the car seat. It is possible that the tarpaulin may have been intended to wrap Mr Ludwig's body. 38 I am satisfied that Mr Patsalis had these purposes in mind, and that there was, in his case, premeditation of murder. 39 Mr Spathis is in a slightly different position. On his own account, he was aware of the tarpaulin, and the petrol. I accept that Mr Spathis was not present when the knives were purchased from K-Mart. However, by the jury verdict, he must be taken to have been aware of at least one knife, and the purpose of that knife, namely, to rob or cause serious harm to Mr Ludwig. It was urged on behalf of Mr Spathis that I should not find (beyond reasonable doubt) premeditation of murder. If one confined oneself to matters which Mr Spathis acknowledges he knew, or which he can be taken to have known, by reason of the verdict, that may be so. However, in drawing the appropriate inference, I do not believe that the available material is so limited. Mr Patsalis gave the following account to the police of an episode at the Marrickville RSL. It provides insight into the role of Mr Spathis on this evening. Mr Spathis, having parked his car at Marrickville, then joined Mr Ludwig and Mr Patsalis at the truck. According to Mr Patsalis, there was an argument about who should drive the truck. Mr Patsalis, in his interview to the police the day after the murder, described what happened in these words: "Then what occurs was - and they had a bit of a dispute about this - was who should drive the truck. Alex wanted to drive the truck, Peter wanted to drive the truck. Alex said to him, 'Listen, I want to make sure that we're not being followed.' And he goes to him, 'Crikey, he takes a lot of precautions', something along those lines. He goes, 'I'm the one who should be worried.' Alex said to him, 'Well, listen, I know the way and it's better for me to drive because that way I don't have to tell you to turn right and turn left at the last moment and you miss a turn,' and so he convinced Peter to allow him to drive. And Peter made a big fuss over that if Alex was to have an accident that Alex would pay for the damage." 40 Mr Spathis denied that account. However, I have no doubt that it occurred. Mr Ludwig had hired the vehicle from Thrifty Rent-A-Car. The Hiring Agreement included a clause (Exhibit W), which stated "No other driver permitted". 41 Mr Patsalis' account is consistent with the Hiring Agreement, and the picture of Mr Ludwig which emerged from the evidence. I infer that it was important to the arrangements between Mr Patsalis and Mr Spathis that evening that Mr Spathis should drive the truck. 42 Counsel submitted that each of these matters was consistent with the possibility that the common purpose was robbery (with possible wounding), rather than murder. The petrol may have been purchased to burn the truck. Mr Ludwig, when stripped of his money, could hardly complain to the police. He had chosen to embark upon what he knew was an illegal enterprise. 43 However, I am not persuaded. I accept in the case of Mr Spathis, as I did in the case of Mr Patsalis, that there was premeditation of murder. I do accept, nonetheless, that Mr Patsalis was the dominant party in the enterprise. It was Mr Patsalis who planned the crime. It was Mr Patsalis who seduced Mr Ludwig into believing that there were cigarettes on offer. It was Mr Patsalis who made the purchases. Mr Patsalis persuaded Mr Spathis to assist him. Mr Spathis, weakly, agreed to do so. 44 Throughout the trial (which lasted fifty-five days), the brother of Mr Ludwig sat in Court. Other members of the family came from time to time. One can only imagine the anguish that they felt, and the impact upon their lives. However, the sorrow of those who remain behind is not a matter that I should take into account when sentencing each prisoner, and I do not do so (R v Previtera (1997) 94 A Crim R 76 at 85).

The Subjective Case for Mr Patsalis 45 Mr Patsalis was born in Cyprus on 17 February 1968. He was 28 at the time of this crime. He is now almost 32 years old. He came to Australia at the age of 6. He is the eldest of four children. 46 I accept that his early years were difficult. His father became violent and abusive, especially towards his mother. His father was also a gambler, an affliction which is shared by Mr Patsalis. His mother suffered from mental illness. She spent time in psychiatric hospitals. Ultimately, in 1996, Mr Patsalis' parents separated. 47 Mr Michael Patsalis clearly showed promise. He was described as being responsible and sensible, and deeply religious. He completed his Higher School Certificate in 1986. He then attended the Charles Sturt University of Bathurst, and graduated in 1991 with a degree in Social Science. It was whilst at Bathurst that he became heavily involved in gambling. He began to borrow money. 48 In 1991 Mr Patsalis was accepted as a cadet by the Police Academy at Goulburn. His studies were, however, disrupted. He was accused on two occasions of misconduct. On the first occasion he was charged with a criminal offence. The charge was dismissed. On the second occasion, one gathers, he was invited to leave the Academy. He did so a matter of days before graduating. 49 Mr Patsalis thereafter worked in a variety of jobs. He was a short order cook, and he acted as a security officer. Mr Amor-Smith of counsel, in helpful written submissions, identified a number of matters which, it was suggested, warranted leniency. Mr Patsalis later provided a detailed written submission. He elaborated upon some of these matters. The matters are as follows: · First, it is said that Mr Patsalis has shown remorse. · Second, it is said that Mr Patsalis gave significant assistance to the authorities, warranting a discount under s442B of the Crimes Act. · Third, it is said that Mr Patsalis will probably spend his term in protective custody. That fact should be recognised in the sentence imposed. A further discount is warranted. 50 I should add to this list one further matter. Mr Patsalis, before these events, was a compulsive gambler. His gambling lies at the heart of his involvement in this crime. He is described by Dr Lisa Brown, psychiatrist, as a pathological gambler. Although he has since (in his written submissions) disowned any interest in gambling, the issue arises whether there are, in his case, special circumstances which suggest that he may require a period of rehabilitation greater than that arising under s5(2) of the Sentencing Act. 51 I will deal with each of these issues in turn.

Mr Patsalis and Remorse 52 It is said that Mr Patsalis suffers from remorse. He appeared to Dr Brown to be preoccupied with the death of Mr Ludwig. He regretted that his behaviour should have caused distress to Mr Ludwig's family. 53 However, Mr Patsalis insists that he is innocent. He accepts no responsibility for Mr Ludwig's death, nor even the robbery. I cannot accept, in these circumstances, that he is genuinely remorseful.

Discount for Assistance 54 Should Mr Patsalis be given a discount for the assistance he provided to the police in their investigation of this crime? The issue involves both questions of fact and questions of law. 55 There is no question in my mind that Mr Patsalis recognised that the crime, in its execution, had gone badly wrong. It appears that Mr Spathis may have panicked when at Terrey Hills, so that Mr Ludwig's body was left by the side of a suburban road, where it was then set alight. However it came about, Mr Patsalis appreciated that they had been seen. I accept the account of Mr Spathis, given to the police the day following the murder, where he attributed to Mr Patsalis these words, spoken as they were about to part company: "He said, 'Don't say anything ever, you know, even if, even if, you know, you get caught, you know, if, if your name, 'cause they seen your car." 56 Either shortly before, or shortly after, saying these words, Mr Patsalis determined that he would go to the police. He went to the Hilton Hotel at 4.00 am the morning following the murder. He began to write out his story. He presented himself at the Bankstown Police Station shortly after 6.00 pm. His motive was entirely self interest. It had nothing to do with assisting the authorities to solve the crime. It was a pre-emptive strike against Mr Spathis. Nonetheless, Mr Patsalis provided the police with important information concerning Mr Spathis, and the crime. Because it served his purpose (in that he was less likely to slip up), he substantially related events as they occurred. However, he omitted entirely his role in these events. The information provided by Mr Patsalis could hardly be described as full and frank. It did, however, contribute to the success of the prosecution against Mr Spathis, and also, ironically, against Mr Patsalis himself. In blaming Mr Spathis, Mr Patsalis unwittingly incriminated himself. 57 Should the sentence which would otherwise be imposed upon Mr Patsalis be reduced by reason of the assistance he provided to law enforcement authorities (s442B Crimes Act 1900)? 58 The policy behind this section is to encourage the provision of information to assist in the solving of crime. The motive of a person who provides the information is relevant, but not determinative. If the person who provides the information does so because he or she feels contrition, they may be entitled to greater leniency than may otherwise be the case (R v Cartwright (1989) 17 NSWLR 243 at 252). However, self interest is not a disqualification. The fact that the information is given after arrest is likewise no impediment to a discount in an appropriate case (as the circumstances in Cartwright's case make clear). 59 The authorities emphasise that the information provided should be full and frank (R v Hayes (1981) 3 A Crim R 286, per Burt CJ at 287-288; R v Cartwright (supra) per Hunt and Badgery-Parker JJ at 17). That is not to say that an account which is in part untruthful, or incomplete, or unreliable, will necessarily fail to attract any discount (R v Downey (1997) 97 A Crim R 41). It is a question of fact and degree. 60 Here, the account of Mr Patsalis was, in significant respects, untruthful, incomplete and unreliable (s442B(3)(c)). In the circumstances, I do not believe a reduction under s442B is appropriate.

Harsher Custodial Conditions 61 I move, then, to the third aspect raised on behalf of Mr Patsalis, that he will be required to serve his sentence in protection, and that fact must be reflected in the term imposed. One of the matters the Court is required to take into account under s442B(3)(g) is that a person who provides assistance may suffer harsher custodial conditions. It could not be suggested, in my view, that by reason of the information provided to the police, Mr Patsalis now requires protection. Mr Spathis, it might be noted, also provided information implicating Mr Patsalis, after some initial reluctance. It is not suggested that he has required protection. 62 Mr Patsalis elected to go into protective custody after arrest (and before being granted bail), and after conviction. He was, as mentioned, at one time a police cadet. Persons associated with the police force ordinarily require protection. The Crown accepted that probably some form of protective custody was required for Mr Patsalis. 63 For my part, I doubt that Mr Patsalis requires protection. His association with the police service was brief, and incomplete. I have no evidence from any person from the Corrective Services Department that they believe it is appropriate that Mr Patsalis, in his own interests, be provided with protection. Nonetheless, in view of the concession by the Crown, I will make a small allowance to take account of this aspect. 64 On 10 April 1993, Mr Patsalis was charged with stealing. He pleaded guilty. No conviction was recorded (under s556A of the Crimes Act), upon his entering into a recognisance to be of good behaviour for a period of two years. The Crown acknowledged that this matter had no relevance in determining the appropriate sentence. I will approach the matter upon the basis that Mr Patsalis has no convictions.

Special Circumstances 65 I come finally to the issue of special circumstances. The Sentencing Act 1989 obliges me to fix a minimum term, and an additional term. It also provides for a ratio between such terms, unless the Court decides that there are special circumstances (s5(2)). The issue is whether there is a need or justification for a departure from the ratio which is suggested by the statute. There must be something in the case which warrants a longer than usual additional term by comparison with the minimum term (R v Farouk (CCA, unreported, 29 March 1996) per Gleeson CJ at 5). Some insight is provided by the remarks of Hunt CJ at CL in R v Phelan (1991) 66 A Crim R 446, where he said this: (at 449) "'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration. Such will often be the case with young offenders who are facing their first custodial sentence. Those statements are taken from the judgments of this Court in Regina v Moffitt (1990) 20 NSWLR 114 at 121, 132, 136; 49 A Crim R 20 at 26-27, 38, 41-42." 66 Mr Patsalis is facing his first custodial sentence. He could not, in my view, be characterised as a young offender. There are, nonetheless, several matters which may suggest special circumstances. The compulsive nature of Mr Patsalis' gambling, described by Dr Brown as "pathological", may suggest that he would benefit from a significant period of supervision by the adult Probation and Parole Service. The fact that Mr Patsalis may be required to serve his sentence in protective custody is, likewise, a matter which could justify a finding of special circumstances. 67 However, the crime for which Mr Patsalis must be sentenced is plainly very serious. Indeed, it has been repeatedly described as the most serious in the criminal calendar. A lengthy custodial sentence, is therefore, inevitable. The additional term, under s5(2), will itself be lengthy. In my view, that term will furnish an adequate period for supervision. I therefore do not see the need to depart from the statutory ratio. 68 Mr Patsalis spent 121 days in custody before being released on bail on 21 May 1996. During the course of my summing up I revoked bail for one day, on 22 September 1999. In the sentence imposed, I have therefore given credit for 122 days.

The Subjective Case of Mr Spathis 69 Turning to Mr Spathis, he was born on 7 June 1968. He attended Randwick Boys' High. He was an accomplished sportsman. He was made a prefect and house captain. He obtained the Higher School Certificate in 1986. He then pursued an interest in music, completing two years at various colleges for the performing arts. He also completed one year of an Arts degree at the University of New South Wales. 70 Before these events, Mr Spathis led an exemplary life. It is plain from the many references provided that he was held in high regard by a great many people. He had no criminal convictions. He was in full time employment in a variety of jobs. At the time of these events he had his own business (in partnership) running a bistro at the Three Swallows Hotel at Yagoona. Having been released on bail, Mr Spathis worked as a truck driver. So highly was he regarded that his employer, although aware of his conviction, said that he would be pleased to offer him a position upon his release from gaol. 71 Mr Spathis has no interest in gambling. He does not use drugs, or abuse alcohol. He is married. 72 I am confident that Mr Spathis' behaviour was aberrant, and that, through weakness he allowed himself to be dominated by Mr Patsalis. His prospects of rehabilitation are excellent. 73 Two things were said which are directly relevant to the sentence which is appropriate. · First, it is said that Mr Spathis has suffered remorse. · Second, it is said that there are special circumstances in his case justifying a departure from the statutory formula. 74 I will deal with each matter in turn.

Mr Spathis and Remorse 75 Mrs Spathis, the wife of the prisoner, provided a poignant account of her relationship with her husband. Her account included the following: "I must tell you of the intense emotional suffering Alex has endured since that night of 11 April 1996. He has expressed complete regret of his unexpected involvement and actions, has felt immense compassion to all families affected and feels deep personal shame and embarrassment. His personal suffering has seen Alex have innumerable nightmares and has been irreversibly scarred by the events of 11 April 1996." 76 I do not doubt that Mr Spathis profoundly regrets his involvement in the events of 11 April 1996. However, regret is not remorse. It has more to do with his suffering than the suffering of Mr Ludwig and his family. Mr Spathis, like Mr Patsalis, insists that he is innocent. He has acknowledged neither complicity in the robbery, nor in the murder. Without an acceptance of responsibility, I cannot accept that there is genuine remorse.

Special Circumstances 77 Counsel for Mr Spathis urged that the Court should find special circumstances. The following submissions were made: "2.1 Rehabilitation of a first-time offender serving his first prison sentence when still relatively youthful is an important component of the sentencing process. 2.2 An extended period of supervision helps the facilitation of this object. 2.3 Re-integration into society after a lengthy sentence is likely to be difficult and thus the availability of parole services is important in effecting complete rehabilitation." 78 I will not repeat the remarks I made concerning special circumstances in respect of Mr Patsalis. There is material which, in other circumstances, would justify a departure from the statutory formula. However, the additional term which I intend to impose is, with some minor adjustments, adequate, in my view, to serve the needs of rehabilitation. 79 I believe, for the reasons I have given, that Mr Patsalis was the dominant figure. I accept that Mr Patsalis played a much larger role than Mr Spathis. Nonetheless, Mr Spathis' role was significant. Without Mr Spathis one doubts that Mr Patsalis would have had the courage or the ability to achieve his evil objectives. 80 Mr Spathis spent 137 days in custody before being admitted to bail on 6 June 1996. I revoked bail in the course of my summing up on 22 September 1999. The verdict was returned the following day, 23 September 1999. Mr Spathis should receive 138 days credit for time served. 81 Michael PATSALIS, I sentence you to penal servitude for 21 years 6 months, consisting of a minimum term of 16 years, and an additional term of 5 years and 6 months. Giving credit for the period in custody (122 days), your minimum term will end on 22 May 2015, at which time you will eligible for parole. Your additional term will commence on 23 May 2015 and end on 22 November 2020. 82 Alexios SPATHIS, I sentence you to penal servitude for 19 years, consisting of a minimum term of 14 years, and an additional term of 5 years. Giving credit for the period in custody (138 days), your minimum term will end on 6 May 2013, at which time you will be eligible for parole. Your additional term will commence on 7 May 2013 and end on 6 May 2018. **********

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