The Queen v Constantinou [2013] VSC 474

Supreme Court of Victoria|2013-08-23|Before: PRIEST JA

CRIMINAL LAW - Sentence - Murder - By strangulation - Plea of not guilty - Removal of deceased's jewellery - Disposal of body - No remorse - Sentence of 24 years' imprisonment with non-parole period of 20 years

**1 Steve Constantinou, you have been found guilty of murder, the maximum penalty for which is life imprisonment. In the circumstances, I have no option other than to sentence you to a substantial term of imprisonment.[1] For the reasons I will shortly state, I intend to sentence you to be imprisoned for a period of 24 years, and to fix a period of 20 years before you are eligible for parole.

2 Johanna Martin was, so the evidence reveals, a gregarious, friendly and, at least in her dealings with you, a generous woman. Her husband, with whom she had at times a difficult relationship, recently had died. At the time of her own death, she was optimistic, and looking forward to a trip back to her native Holland. As Ms Bushell put it, she had 'found peace, excitement and a newfound love of everything in her world since her abusive husband died'. By your actions, you deprived her of any further happiness or enjoyment of her new found freedom.

3 You pleaded not guilty to the charge of murder. You thereafter ran a scurrilous defence, underpinned by the blatantly preposterous claim that Ms Martin had met her death in the course of a sex game gone wrong. It was a somewhat opportunistic attempt, in my opinion, to capitalise on the fact that Ms Martin was a sex worker. I make it plain that I do not aggravate the sentence I pass because you have conducted an utterly hopeless and time-wasting defence to the charge. But you are not entitled to the significant discount on sentence that you otherwise would have attracted had you entered a guilty plea.

4 I detect in you no shred remorse. The manner in which you sought to manufacture false accounts, including that of erotic asphyxiation that you advanced on your trial, demonstrates that this is so. I am satisfied beyond reasonable doubt that you lied in this court when you claimed that Ms Martin had inadvertently met her death having introduced you to a sex game involving a dog collar and reins. This was a false account that you manufactured to try and overcome the lie you had told police that Ms Martin strangled herself, that lie having been exposed by Dr Bedford's opinion that it is impossible for someone to strangle themselves to death. Again, I do not aggravate the sentence or impose additional punishment on you because you lied on oath in an endeavour to secure an acquittal on the charge of murder. But the fact that you were calculatedly and deliberately untruthful, and sought to a large extent to cast blame for her own death on Ms Martin, bespeaks an absence of any contrition or remorse on your part. My strongly held view that you are totally bereft of any remorse was buttressed by your counsel's inability to point to any evidence of remorse when I raised that matter in the course of the plea.

5 The circumstances of your offending may be briefly described. Johanna Martin met her death at your hands somewhere between 12.06pm and 12.54pm on 11 October 2011. In my opinion you revealed part of the truth when you told the police in your record of interview that Ms Martin was strangled with a rope which you later disposed of (albeit you advanced the manifestly untenable suggestion that she had strangled herself). I am satisfied beyond reasonable doubt that you strangled Ms Martin with a rope which you later disposed of to cover up your commission of the crime of murder. I am also satisfied beyond reasonable doubt that you intended to kill her. Dr Bedford gave evidence that the cause of death was neck compression, and that a significant or moderate amount of force had been applied to the deceased's neck which must have gone on for thirty seconds or more. You would have in that thirty seconds had time to appreciate that your use of the ligature on Ms Martin's neck would cause her death, yet you did not desist. Defence counsel sought to make much before the jury of the lack of defensive wounds on Ms Martin. But on the available evidence I think it to be highly likely that you strangled Ms Martin from behind, in such a position and with sufficient force that she was unable to resist you. I think it highly likely that the two abrasions on her neck evidence a thin ligature having slipped during a struggle, and that the abrasion on Ms Martin's chin was the result of attempting to grasp the ligature during a struggle.

6 I am unable to be satisfied beyond reasonable doubt as to what precipitated your murderous attack on Ms Martin. The prosecution advanced a motive that you killed her to avoid repayment of money that you owed her. Whether that was the situation, or whether you argued over money or something else, I am unable to find beyond reasonable doubt. It follows that I cannot be satisfied to the criminal standard that your crime was premeditated, as opposed to impulsive or opportunistic.

7 Your offending was, however, extremely grave. I am satisfied beyond reasonable doubt that within a few short minutes of extinguishing her life, with almost unfathomable callousness, you stripped Ms Martin's body of her jewellery. You left home at 12.54pm and by 1.11pm you had parked in Barkley Street, Footscray, so that you could sell the jewellery that you had stripped from her. You were back home by 1.43pm, and by 1.48pm you were leaving home with Ms Martin's trussed up remains which you dumped unceremoniously in Lorimer Street a little after 2.00pm. Your evidence that you kissed her deceased body's cheek and apologised is ludicrous although, of course, I do not punish you for making that deliberately false claim. In my view, the manner in which you stripped Ms Martin of her jewellery post-mortem in order to sell it, and the manner in which you disposed of her body - which demonstrated a complete disregard for her dignity in death, and which was done in order to conceal your part in her death - are both aggravating features of your offending.

8 Shortly after dumping her body, at 12.38pm you were captured on CCTV footage laying a bet; and at 3.06pm you were captured on CCTV footage collecting on the bet. Your appearance on the footage (recognising, as I do, the limitations of such footage), the fact that you were sufficiently composed to lay a bet, and the fact that you had the presence of mind to follow your bet and collect on the win, put paid to any suggestion that you were in a state of panic. Moreover, even were you a gambling addict - a matter about which I enjoy a deal of scepticism - it beggars belief that even the most hardened addict would seek solace in gambling after the commission of such an appalling crime. I am satisfied beyond reasonable doubt that you were not in any state of panic or upset and that your actions following Ms Martin's death at your hands was not influenced by any gambling addiction. As I observed to your counsel on the plea, the source of the assertion that you had a gambling addiction was a history provided solely by you. Given that I am satisfied beyond reasonable doubt that you lied in this Court - having told multiple lies to the police - I would not be prepared to accept any evidence which had you as its source unless supported by other evidence.

9 Although I must not permit it to unbalance the sentencing discretion, I am required to take into account the impact of your offending on the victims of your crime. I have endeavoured to give proper weight to the various victim impact statements that were tendered. I received victim impact statements from Ms Martin's son, Wayne; from her daughter, Paulene; from her granddaughter, Katrina; and her grandson, Sam. Various of her extended family and friends also provided victim impact statements. All were read aloud by the prosecutor or the maker of the statement, or were provided to me to be read at my convenience. I have taken all of them and their contents into account. Plainly, Ms Martin was a kind, funny, gregarious, engaging, loving and much-loved individual, whose death has affected adversely the lives of many who will greatly miss her.

10 I must impose a sentence which punishes you to the extent and in a manner which is just in all the circumstances. I must also have regard to current sentencing practises. In my opinion, general deterrence is an important factor in sentencing you for Ms Martin's murder. In imposing sentence upon you, I must have regard to the need to deter other like-minded individuals from committing similar offences, and I must pass a sentence which adequately reflects the court's denunciation of your conduct. Although I do not ignore it entirely, I regard the need for specific deterrence to be of reduced importance in your case. I regard it as unlikely that you will ever be in a position to re-offend in a similar fashion. For much the same reason, I regard the need for the community to be protected from you as minimally important.

11 In reaching these conclusions I have had regard to your previous good character, and what I regard to be reasonable prospects of rehabilitation. I am prepared to accept that for most of your 50 years or so you have been of good character.

12 A number of impressive references as to your character were received, including a touching letter from your daughter, Jade. I need not recount their content in great detail. I have read and considered all of what was written. They paint a picture of a man who is an excellent father (having single-handedly raised his daughter from the age of two years); a good son; and a cherished friend to many. They depict a caring, amusing, gentle and good natured individual, who has not previously demonstrated any propensity for violence. Thus I am prepared to treat you generally as a person of good character, and this offence as an aberration. I regard your prior convictions - including that for stalking, the circumstances of which were explained on your plea - as being of very minimal importance in the exercise of the sentencing discretion.

13 I have been told something of your history and antecedents. Much of it was contained in a 'timeline' provided by your counsel. You were born on 14 September 1963, and are almost 50 years of age. You were educated at Eastern Road and Nott Street Primary Schools. Secondary schooling was undertaken at Albert Park High, South Melbourne Tech and CBC St Kilda. You spent much of your working life employed on the railways; working in bricklaying; and working as a cleaner, until you took up the full time care of your father, supplementing your income by working as a self-employed handyman. Despite Mr Galanakis' reservations about your reliability as a workman - which he expressed during his evidence on the trial - I am prepared to accept that you have had a steady employment record.

14 I also take into account in your favour that you have had two very responsible billets (or jobs) whilst incarcerated, and have earned a number of certificates evidencing the acquirement of a number of skills, during your confinement. You have also produced negative drug and alcohol screens. I take these matters into account in your favour. They show that you have the capacity to be productive, and, taken with your previous good character, demonstrate that you are not beyond reclamation. Indeed, I regard your prospects of rehabilitation as good.

15 You dote on your daughter, Jade, and closely follow her career in show business. As a result of imprisonment, you will suffer separation from your family - particularly Jade - although no more than the average person with a family in like circumstances. I regard your separation from family, however, as being of very limited importance in fixing sentence. It is by no means out of the ordinary for cases of this kind.

16 A report was received from a forensic psychologist, Mr Watson-Munro, and he gave evidence on the plea. According to Mr Watson-Munro, you have no major psychiatric disturbance apart from a gambling addiction or gambling disorder (which manifests itself in obsessive-compulsive behaviour), a major depressive illness and an anxiety disorder. There was also a suggestion of some post traumatic stress following witnessing your grandmother's death at age seven. I am not satisfied that any of these aspects reduce your moral culpability for the murder of Ms Martin. Indeed, their supposed connection with the crime was never articulated with any clarity. Moreover, I am not satisfied that your depression or anxiety will - save in an insignificant way - make your incarceration more burdensome than for others. As Mr Watson-Munro remarked, most people in gaol are anxious and depressed.

17 On the other hand, I am told that you are serving your time in protection, and will continue to do so. I do take that into account as a factor ameliorating the sentence that I am to pass on you.

18 I was also told of your offer to plead to manslaughter, which rightly was rejected by the prosecution. I do not regard that offer, however, as being of any relevance in determining an appropriate sentence. You committed murder. You offered no plea to it.

19 Your counsel, Mr Tyrrell, in an earnest, competent and realistic plea on your behalf, sought principally to rely on your previous good character, your good employment record, your lack of previous violence directed towards women and the fact that the present offence was totally out of character. He also, of course, relied upon the other mitigating features I have earlier referred to. I have had regard to his submissions.

20 In the end, I must impose sentence which is proportionate to your offending, and fix a non-parole period which represents the least period that justice requires that you be confined before conditional release on parole. The sentence in this case, as with every other case, must depend on its own facts, and be the product of an instinctive synthesis of the features particular to it. I have endeavoured to synthesise the factors that I have referred to in order to arrive at a just sentence.

21 Steve Constantinou, on the count of murder you will be convicted, and be sentenced to be imprisoned for 24 years. In my estimation, and having regard to the various factors I have already discussed which must animate any sentence I pass, in my opinion the minimum period which you must in the interests of justice be required to serve in confinement before the possibility of conditional release on parole is 20 years. Hence I fix a period of 20 years' imprisonment before you will be eligible for parole.

22 I declare the period of 640 days as already having been served pursuant to the sentence.

[1] See Sentencing Act 1991, ss 5(3) and (4).

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Judgment (25 paragraphs)

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