The Queen v Giannioudis [2019] VSC 75

2 The maximum penalty for manslaughter is 20 years' imprisonment.

3 In October 2017, you were living in an apartment with your brother in Collingwood. You were unemployed, severely drug addicted and, to fund your habit, selling heroin in the Richmond area.

4 Mr Cartwright had been a previous customer of yours and there was, dating from at least a few weeks prior to the night of his death, a marked hostility between you. The duration of that hostility and the extent to which Mr Cartwright had acted aggressively towards you, was in issue on your plea. I will later return to this issue.

5 On Monday 30 October 2017, you and your partner, Ms Bates, arrived by car to the vicinity of Victoria and Nicholson Streets, Richmond at about 8.00pm, in order for you to sell heroin. Mr Cartwright together with his partner arrived in the vicinity a short time later. The weather was inclement, reducing the number of pedestrians generally and your customers specifically. You told one potential customer close to 9.00pm that you had not sold any heroin due to the rain and could not, therefore, supply drugs to her on credit.

6 At about 9.17pm, you and Ms Bates were near 140 Victoria Street, Richmond. Mr Cartwright and his partner were on the opposite side of the road. While his partner sat down and remained there, Mr Cartwright crossed the road and approached you and Ms Bates. He was carrying a washing basket. After a brief interaction, you produced a knife and stabbed Mr Cartwright once to the chest.

7 Mr Cartwright's partner heard him cry out in pain and ran to him, not realising he had been stabbed. She observed you holding a knife. Mr Cartwright told her he had been stabbed before lifting his shirt to reveal heavy bleeding.

8 You and Ms Bates fled the scene and drove away. Mr Cartwright, carrying the washing basket, and together with his partner, walked across and along Victoria Street, before starting to stumble. He collapsed after complaining of white flashes and blurred vision. He was assisted by passers-by. Police and paramedics arrived at the scene at 9.29pm. Once stabilised, Mr Cartwright was taken to Royal Melbourne Hospital. En route he went into cardiac arrest and lost consciousness. Surgeons were unable to save his life and he was pronounced dead at 11.15pm. A later autopsy found a sharp force injury to the left chest to the depth of 12cm. The cause of death was a haemorrhage secondary to a stab wound of the chest.

9 You and Ms Bates returned to your flat in Collinwood, where you arranged and executed a heroin transaction with the disappointed customer from earlier in the evening.

10 Mr Cartwright's partner assisted police by informing them that your mobile number was written on a card in Mr Cartwright's wallet against the name 'Bee', your nickname. Police attended the Collingwood flat the following morning. Your brother was home, but you were not. You were arrested in your car and in the company of Ms Bates just after midday on 31 October 2017.

11 The death of Simon Cartwright has been nothing less than devastating upon his family.

12 Mr Cartwright was very well loved by his father, step-mother and mother in their full knowledge of his battles with drug addiction and his lifestyle that accompanied that struggle. His father speaks, ever so tenderly, of his son who could be a bit of a 'terror', but who was always loving. His step-mother, who raised him along with two step-siblings, speaks of always treating him as if he had been her own. His mother speaks of the loss of her only child.

13 The impact on his father, mother, and step-mother of Mr Cartwright's death goes beyond the grief that their 38 year old son has gone. Mr Cartwright Senior suffers depression and panic attacks, and an inability to maintain employment. His wife, Ms Cooke, also has resigned her employment and is undergoing counselling while taking anti-depressant medication. This has put a financial strain on their household. Ms Ricardo, too, is taking medication and has the assistance of a counsellor.

14 In short, as the victim impact statements make plain, the lives of Mr Cartwright's family will never be the same again.

16 You are now 31 years of age, having been born on 4 January 1988. You were 29 years old at the time of the offence. You, too, have battled drug addiction. That may have been all but inescapable, given the particular circumstances of your upbringing.

17 Your mother and father were both heroin addicts prior to your conception, which occurred, you believe, as a result of rape. Drug use by your mother (and father) continued throughout the pregnancy and you were born, one month premature, into addiction. Your brother Johnny, some 18 months younger than you and born at six months' gestation, was also born into addiction.

18 Your parents married while your mother was pregnant with you but separated when you were only two years old. That separation was precipitated by your father striking you so hard that his hand print was visible on your back. Your mother also suffered significant physical violence by your father.

19 At the age of five you were living with your mother and brother in public housing when your stepfather moved in. After a little time, he began sexually abusing you. You found no respite outside the home. When you 'ran away' to stay with your godparents, you suffered sexual abuse at the hand of your godfather. When you had contact with your biological father you suffered further physical abuse.

20 When you were about eight years old, and your mother and step-father had produced your step-brother, they both resumed heroin use. At that tender age you witnessed them injecting the drug themselves, as well as selling heroin to other drug users who frequented the house. You also observed, on more than one occasion, both your mother and step-father overdose. These adults insisted that neither you nor your younger brothers - whom you protected as much as you could - tell anyone outside the home about their drug use and its consequences. And so, you added that secret to the weighty secretive burden you already carried about your ongoing multiple sexual and physical abuse.

21 It was not until you were aged 15 and staying with your maternal grandparents in Adelaide, that you buckled under the strain of your situation. After being admitted to hospital as a result of panic attacks, you were assessed by the South Australian Child and Adolescent Health Services, during which assessment you first disclosed your history of being sexually abused. You then told your maternal aunt of this.

22 That led to your mother being informed. Her response was to call you a liar. As a result, you did not immediately return to Melbourne, but were enrolled in school in Adelaide. However, after visiting your brothers in Melbourne during school holidays, you did not go back to South Australia. Neither did you live in the family home, as your mother would not allow it. You were effectively homeless. Unsurprisingly, although twice attempting to complete year 11 schooling, you were not able to.

23 Your mental health was extremely fragile. Following a suicide attempt, you were admitted as an involuntary patient to the Royal Children's Hospital. There you were raped by a fellow patient. You subsequently became a patient of Orygen Youth Health and came under the care of a psychiatrist. You were repeatedly hospitalised after numerous self-harm or suicide attempts.

24 You lived independently in public housing. You had no contact with your mother. Your step-father died when you were 18, and when you were 22, your mother moved to Adelaide.

25 Your pivot towards illicit drug use must be seen in the context of this childhood and young adulthood, which can only be described as abominably traumatic. You started using cannabis as a teenager, later turning to heroin. You have been a daily user since the age of 22. That led you to criminal conduct - including a number of relevant prior convictions - a marginal existence, and ever deteriorating mental and physical health. In October 2017 at the time of this offence, you weighed just 45 kilograms and were using about $400 worth of heroin daily.

26 Since the age of 17 years, you have had three intimate relationships of note. The first two ended unhappily. But for some two years, you have been in a relationship with your current partner, Ms Bates. Together you have a son. This relationship appears to be loving and mutually supportive and, notwithstanding your offending and the inevitability of a lengthy custodial sentence, an ongoing one.

27 It is beyond question that your offending is grave. You armed yourself with and used, to fatal conclusion, a knife on a major public thoroughfare in inner Melbourne. Your conduct is deserving of opprobrium and a significant gaol term.

28 That said, and without derogation, at the hearing of your plea, a number of issues arose with respect to the more nuanced assessment of the objective gravity of your offending and your moral culpability for it. First, the depth and duration of the mutual enmity between Mr Cartwright and you and, in particular in that context, the level of aggression flowing from Mr Cartwright. Second, the applicability or otherwise of the principles in R v McKee[1] with respect to the relevance of your drug addiction to your offending. Third, the applicability of the principles in Bugmy v The Queen[2] as to the relevance of your background. Fourth, the applicability of the principles in R v Verdins[3] as to any operative impairment to your mental functioning at the time of the offence.

29 Further, an issue arose with respect to the complex task of assessing your prospects for rehabilitation.

31 As I have already stated, you and Mr Cartwright were known to each other in the drug milieu in which you each moved. Analysis of your mobile phone and that used by Mr Cartwright reveals that you exchanged text messages with Mr Cartwright on both 31 July 2017 and 18 September 2017. The messages on the earlier date related to the sale of drugs. Those on the later date show some hostility from you to Mr Cartwright, such as 'U should watch your back cause when I see yas it's on no matter what junkie state use are in bitches' and a complaint from Mr Cartwright that you had tried to stab him and his partner when he was assisting her while she was in a drug affected state, 'My girl was Odin the other night ... I was carrin her and u tryed to sneak And stab me and my girl from behind. now everyone knows how doggish u are!!!!'. It is common ground that you and he had an altercation at a Collingwood shopping centre some weeks prior to 30 October 2017.

32 Your counsel submitted that by that time you were in fact in fear of Mr Cartwright in light of a history of incidents between you over the preceding six months. These were said to be:

(a) An occasion in April 2017 when Mr Cartwright, apparently drug affected, and in company with his partner approached you and Ms Bates on a Richmond Street and asked you for 'ice'. When you said you did not have any, he suggested that you, Ms Bates and his partner together engage in sexual activity while he observed.

(b) An occasion in May 2017 when Mr Cartwright approached you at the back of the flats where you lived, asking for free drugs. When you refused, he produced a knife and demanded drugs and the gold you were wearing. You received a stab wound to your right arm which required medical attention. You gave a false account of how you acquired the injury to your doctor.

(c) An occasion shortly afterwards on which you found graffiti on the wall of your apartment stating 'B U lagging dog!' and 'B U dead'.[4] You believed Mr Cartwright to have been responsible for that graffiti.

(d) The Collingwood shopping centre incident, in August 2017. Ms Bates was in a supermarket while you waited with your son, then in a pram, outside. Mr Cartwright's partner approached you, asking for drugs. You refused. Mr Cartwright's partner became upset and, given the history to date, you went to the carpark to put your son in your car. Mr Cartwright and his partner followed you. Mr Cartwright threatened you with an umbrella and called you a 'lagging dog'. You do not understand why this term was used. A security guard tackled Mr Cartwright to the ground. You and Ms Bates left when requested to do so by the security guard.

(e) An incident shortly afterwards in Victoria Street, Richmond. You were with Ms Bates. You observed Mr Cartwright and his partner. You thought she had overdosed. She was unconscious and being dragged across the street by Mr Cartwright. Others in the vicinity were acting aggressively towards Mr Cartwright. You attributed this to street knowledge or rumour about his behaviour at the Collingwood shopping centre. You stepped in to prevent any violence. You deny any attempt to stab Mr Cartwright on that occasion.

(f) The series of mutually hostile text messages dated 18 September 2017.

33 In so far as this history extended beyond the text messages and the incident at the Collingwood shopping centre, it was not accepted by the Crown.

34 Your counsel acknowledged that in so far as this history was relied upon as being mitigatory, he carried the burden of establishing it on the balance of probabilities. No evidence was called.

35 There is some material in the prosecution brief that suggests that you were afraid of Mr Cartwright in the immediate aftermath of the incident in Richmond. You sent a text message to your disappointed customer stating that the 'dog' that had earlier tried to rob you with your child had tried to do it again. You also sent two messages to your brother imploring him not to answer the door to your flat as someone had just tried to rob you and might come looking for you there. If that eventuated, you asked him to call security. Also, the following morning you sent two further text messages to different recipients in which you said that you were almost robbed and hurt the night before.

36 The movement of Mr Cartwright and his partner on Victoria Street on the night of 30 October 2017 is captured by CCTV footage. I have watched that footage. The actual confrontation between you is not discernible. It is not clear whether Mr Cartwright held the washing basket the entire time or when, and from where, you produced the knife. It was said on your behalf that you had earlier secreted the knife at a tram stop as a measure of general protection, as a physically small woman engaged in street trafficking. The CCTV footage shows that the confrontation occurred near a tram stop. There is no evidence that you knew that you would cross paths with Mr Cartwright that evening. Further, I accept that it may not have been readily apparent to you that Mr Cartwright was fatally or even seriously injured. After being stabbed, he walked across the street, carrying the washing basket, in a normal fashion and did not begin to stumble until he was on the footpath of the opposite side. That is relevant to the interpretation of the text messages you sent in the aftermath of the confrontation.

37 While accepting the existence of animosity between you and Mr Cartwright, I am unable to determine its depth or longevity much beyond that accepted by the Crown. I do accept there is some evidence of his previous aggression towards you and certainly ample evidence of yours towards him. I also accept that there is at least some evidence of your fear of him.

38 In the event, whatever the history you had with Mr Cartwright, it is hardly mitigatory of your conduct. You did not need to engage with him that evening. The CCTV footage reveals that, despite the rain, the street was busy with both foot and vehicle traffic. You could have walked away as, on your own account, you had previously.

39 The wielding and use of knives in public, under any circumstances, simply cannot be tolerated.

40 Your offending, whilst occurring on the street at the time you were trafficking drugs, was not committed to satisfy your own drug addiction. Accordingly, your situation is different from that examined in McKee. So much was ultimately conceded by your counsel. Your drug addiction per se is not mitigatory of your conduct.

41 But, as conceded by the Crown, the Bugmy principles are relevant to the sentencing exercise. Your childhood and early adulthood can only be described as horrendous. Not only did you suffer physical and sexual abuse, you carried an intolerable burden of silence about that abuse as well as the drug addiction of your parents and the lifestyle accompanying it. That addiction was visited upon you with your first breath. When at last you had access to appropriate medical assistance and, aged only 15 years of age, gathered the enormous courage to tell your mother of the sexual abuse you had suffered, she called you a liar and excised you from the family, preferring to live with one of your abusers and render you homeless.

42 You have suffered, to use the phrase of the High Court, 'profound childhood deprivation' and tragically, that will leave its mark on you throughout your life.

43 I have had the benefit of a report by Ms Alison Mynard, a clinical psychologist. Unsurprisingly, you have a long history of mental instability. Ms Mynard details:

(a) Your engagement with the Child and Adolescent Mental Health Service in Adelaide, aged 15 years.

(b) Episodes of self-harming and suicide attempts requiring psychiatric admissions when you were aged between 15 and 16 years.

(c) A diagnosis of Borderline Personality Disorder when you were aged 16 years.

(d) Your consistent engagement with various mental health services when you were aged between 16 and 19 years, along with a decade long therapeutic relationship with a psychologist.

(e) Your diagnosis of complex post-traumatic stress disorder, borderline personality disorder, major depressive disorder, anxiety and psychosis.

traumatised and hyper-aroused state contributed to [your] impulsivity, poor judgement and violent behaviour, with significant impairment in [your] ability to regulate [your] emotions and [your] behaviour.

45 Your counsel submitted that this conclusion supported the application of the Verdins principles in the sentencing exercise, particularly with respect to the assessment of your moral culpability and the weight to be given to both general and specific deterrence. It was argued that the impairment to your mental functioning, as opposed to your personality disorder or drug-induced psychosis, affected your ability to exercise appropriate judgement. So much was conceded by the Crown. Accordingly, I take these matters into account.

46 Assessing your prospects for rehabilitation is a difficult exercise.

47 You have a criminal history for violence. In 2017 you were convicted of recklessly causing injury and placed on a Community Corrections Order some five weeks before the present offending. In 2016 you were convicted of intentionally causing injury. In 2010 you were convicted of assault with a weapon. You also have various convictions for drug offences, driving offences and property offences.

48 You have suffered an ongoing, pernicious drug addiction, and succumbed to a lifestyle associated with that scourge.

49 On the other hand, you have shown some self-motivation in seeking professional help to address your addiction issues. Since you have been in custody, you have taken advantage of that help. You have remained drug free and somewhat recovered your general physical health. You have also taken advantage of the educational and vocational opportunities available to you. You have the support of your partner, Ms Bates. You have a son. You have the support of your aunt.

50 But, there can be no doubt of the enormous challenge you face to defeat your addiction, particularly when you are released from custody and no longer have an externally imposed regimen to structure your days and limit your options.

51 The other relevant factor is the authenticity of your remorse. On all of the material before me, I accept that you have shown genuine penitence and contrition for what you have done and the impact it has had on those that loved Mr Cartwright and those who love you.

52 Ultimately, with a degree of caution, I find your prospects for rehabilitation to be reasonable.

53 It follows from the above analysis that the sentencing task in this matter is a particularly difficult one.

54 By your plea, you have accepted that you killed Simon Cartwright and that you had no lawful justification for doing so. And, by acceptance of that plea, the Crown acknowledge that at the time you stabbed Mr Cartwright you had no intention to kill or do really serious injury. You must be punished for that act and, as I have said, nothing other than a significant gaol term will amount to just punishment or appropriately denounce your behaviour.

55 The sentence I impose must give substantial emphasis to general deterrence, although I have moderated the weight of this factor to take account of the Bugmy and Verdins principles, as explained above. There can be no doubt that anyone who uses a knife to fatal effect in a public street will face a harsh penalty.

56 Similarly, although also moderated in the same fashion, I place emphasis on the need to specifically deter you from criminal activity. I am also of the view that there is some need to protect the community from you.

57 As I have stated, I consider your prospects for rehabilitation to be cautiously reasonable and I accept you are genuinely and deeply remorseful for your actions. I take into account your plea of guilty, made very early. Not only has it spared the family of Mr Cartwright the ordeal of a trial, it has utilitarian value and demonstrates a willingness on your part to facilitate the course of justice. And, it is one of the factors relevant to your remorse.

59 I have been assisted with the provision of comparable cases.[5] I have, in so far as it is possible with respect to the offence of manslaughter by unlawful and dangerous act, had reference to current sentencing practice.

61 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 ('the Act') and having regard to the matters I have just discussed, for the offence of manslaughter I sentence you to imprisonment for eight years. You must serve a minimum of five years and six months before being eligible for parole.

62 I declare you have already served 478 days of that sentence by way of pre-sentence detention.

63 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of 11 years' imprisonment with a non-parole period of eight years.

64 I make the disposal order in the terms sought by the Crown.

[1] [2003] VSCA 16; (2003) 138 A Crim R 88 ('McKee').

[3] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[4] Photographs of that graffiti, said to have been taken in Collingwood on 28 June 2017, were tendered.

[5] R v Hudson [2013] VSC 184; R v Trent [2007] VSC 229; DPP v Bryan [2014] VSCA 54; Kells v The Queen [2013] VSCA 7; R v Copeland [2014] VSC 39; R v Williams (Sentence) [2012] VSC 643; DPP v Gillin [2018] VSC 102; R v Jones [2018] VSC 415; DPP v Kerr [2014] VSC 374; R v Raimundo [2015] VSC 550.