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[2013] VSC 134
Supreme Court of Victoria
2013-04-09
KING J
Original judgment source is linked above.
Plea to manslaughter - currently aged 67 - prior conviction for voluntary homicide in Greece in '92. Deceased - 82 year old Greek male shared house - dispute over garden bed - specific and general deterrence important.
1 Periklis Papadopoulos, you have pleaded guilty to one count of manslaughter of Andonios Mirtsopoulos; that killing occurring at Clayton on 20 October 2011.
2 You are currently 67 years of age, having been born on 1 January 1946 in Prodromos in Greece. You have a prior conviction, which is a prior conviction of real significance, being that on 27 January 1992 you were convicted at the Trikala Court of First Instance in Greece of voluntary homicide; illegal possession and carrying of a weapon; and insulting (being insulting words, as far as I can understand). You were convicted and sentenced to life imprisonment for voluntary homicide, the equivalent of a charge of murder; one year and 10 months imprisonment for illegal possession and the carrying of a weapon; and a fine of 50,000 drachmas for the offence of insulting. You remained in custody from that date, 27 January 1992, until you were released on 25 February 2008 - meaning that you served a total of 16 years before being released. The person that you murdered was your cousin, and, according to the information provided by your counsel, the offence occurred after you had been out hunting, had attended a tavern and consumed some alcohol. A minor argument broke out between yourself and your cousin, you left the tavern, you went to the boot of your vehicle, you retrieved a gun and you shot your cousin. I have no more elaborate information than that. A petty argument leading to a loss of life.
3 I have received four victim impact statements, being one each from Mr Mirtsopoulos' children and ex wife. I have read them all. There was discussion in the victim impact statement about reconciliation between the deceased and the ex wife, but they had been divorced as I understand it for many years, and the two sons had not spoken to their father in many years. The daughter had only just spoken to the deceased, after many years of not talking to him. I understand that they feel a loss, but it needs to be tempered with the fact that an estrangement existed, at that time. Equally I do not need victim impact statements to measure the loss that the community feels upon the killing of another member of the community. All people are valuable and their loss causes pain, and heartbreak to their friends, their family and the wider community. Whilst the family was estranged, it also means that the opportunity to reconcile, and put aside one's differences, has now been lost and not only the children of Mr Mirtsopoulos, but also his grandchildren have lost the possibility of getting to know their grandfather.
4 In this case, the prosecution read to the court and tendered on the plea the Crown opening, Exhibit 1. During the plea, conducted on your behalf by senior counsel, it was made clear that there was a dispute between you and the Crown as to the circumstances surrounding the offending, accordingly, I am obliged to undertake fact-finding in respect to this matter. This appeared to come as a surprise to the Crown and certainly to the court, and I wish to make it clear that if there is a factual dispute on a plea, that matter should be made clear to the trial judge and to the Crown, prior to the matter being heard in the courtroom, which unfortunately did not happen in this case. I shall deal with the uncontested matters firstly, and then we will move to the contested issue, as to the actual circumstances of the killing.
5 You migrated to Australia in 1969, became an Australian citizen in 1974, and returned to Greece in 1978. You had already met and married an Australian girl of Greek heritage. She returned to Greece with you. That marriage is still apparently extant, but you have not been in a marital relationship for over 20 years. As I indicated, you were imprisoned in Greece for the murder of your cousin and were released in February of 2008. You remained in Greece only until 2009 when you returned to Australia. Your wife, your daughter and your son remained in Greece. I have no explanation provided as to why you decided to return to Australia and leave your family in Greece.
6 You were by profession a painter. You suffered a fall in approximately July of 2011 and were hospitalised for about a week with broken ribs and lacerations, as well as a shoulder injury. You had moved into the premises at 13 Thompson Street, Clayton about a year prior to this offending, in the period of October/November of 2010. This appeared to be a rooming house, of some sort, for elderly Greek men. The deceased man, Andonios Mirtsopoulos, was also a resident of the premises at 13 Thompson Street, Clayton. The third member of the household was George Karkanis. Mr Mirtsopoulos was a Greek man aged 72 at the time that he died. Mr Karkanis was 67 years of age at the time. The relationship between you and Mr Mirtsopoulos was never a good relationship. Mr Mirtsopoulos had resided at the house in excess of four years and Mr Karkanis, in his statement said that you and Mr Mirtsopoulos argued over small, petty matters and had done so for the last six months - otherwise not talking much at all. Mr Karkanis had separated you and Mr Mirtsopoulos on a previous occasion.
7 Some two weeks prior to the death, Mr Mirtsopoulos had dug up the fenced-off back garden with the intention of planting vegetables. There are photos indicating the area. Despite Mr Mirtsopoulos being the person who had dug the garden area, on the night preceding the killing, you planted four or five tomato and pepper plants in the garden area that he had turned over, in preparation for his vegetables.
8 It would appear that you lived semi-separate lives, whilst sharing the same premises. In the early evening of 20 October 2011, Mr Karkanis was in the kitchen eating his dinner with you, whilst Mr Mirtsopoulos was cooking in his kitchen area, which was located outside. Mr Karkanis finished his dinner and went outside to sit on a bench located in the backyard of the premises. Mr Mirtsopoulos went to talk to Mr Karkanis, he became quite agitated and upset as he discussed and asked why you had planted your plants in his vegetable garden. He became, as I indicated, quite agitated and angry and he called out to you to come outside. You came outside holding a pear, and an approximately 5 inch long bladed knife, which you had been using to slice and eat the pear.
9 You told the police in your interview, that you had false teeth and that prevented you from eating the pear in the normal manner and, accordingly, you used a knife to slice fruit to eat it, although your answers in the Record of Interview appear to indicate that you had finished eating the pear and were getting rid of the remnants of the pear, at this time. You came out and spoke to Mr Mirtsopoulos and you walked towards the garden area. An argument broke out between the two of you. This is where the issue of how Mr Mirtsopoulos died becomes a matter for my determination, and I will deal with that shortly.
10 There is no doubt that, there was pushing, shoving and yelling at each other and that, you had the knife with you throughout this. There is no dispute that the deceased man was stabbed once, with the knife to the chest. Equally what occurred after that is not in dispute. Mr Karkanis said that he separated you two, which is when he realised there was a large amount of blood coming from the deceased's chest, and he saw the knife in your hand. It was shortly after that that Mr Mirtsopoulos collapsed.
11 Mr Karkanis stated that he said to you, in the Greek language, 'There is blood what did you do? Did you stab him.' To which you replied, also in the Greek language, 'Oh no what have I done, I'm going to go to jail for this bastard.' You then wiped the blade of the knife on your shirt sleeve, ran into the house, where you changed your clothes and left.
12 Mica paramedics attended at the house and Mr Mirtsopoulos was pronounced dead at the scene, a short time after their arrival. The cause of death was a single stab wound to his chest. The wound track was 12 cm in length and the force required on the scale of mild, moderate, severe and extreme was considered by Dr Parsons to be at least severe.
13 In his statement George Karkanis described the incident in some detail. He said, that you came from the kitchen holding a pear in one hand and a knife about six or seven inches long with a black handle. He described you, as starting initially to talk to each other in reasonable voices, and then those voices becoming raised and the language, as he said, rude. He told you to stop arguing but it continued. He walked to the garden where you both were. You were both standing near a small orange tree, to the left of the gate to the garden. He was about three metres away from you. The deceased was pulling out the tomato plants that you had planted and you started pushing him into the fence. The next thing is, that both of you were punching into each other, with both closed fist and open hand, to the head and the body. He thought you were only punching with your left hand. He couldn't see your right hand. He stepped in and separated you. You were on his right, the deceased on his left, and he got you to move about two metres away from each other. You both continued to yell at each other and say things. You had your hands down at your side at this stage. He turned and started to walk away. You also started to walk away towards the gate, when you turned around and ran back at the deceased man, who also moved towards you. He said he was about two metres away from you, near the gate when he turned back to separate you, he put his arms between you, pushed the two of you apart, it was when he noticed blood spurting from the deceased's chest. He then noticed the knife in your right hand, which was the first time he had seen it since you'd actually come into the garden area. He said, he asked you 'There is blood what did you do? Did you stab him?' You replied what I indicated earlier, 'Oh no what have I done, I'm going to go to jail for this bastard.' And that you then wiped the blood off on your sleeve, and that you asked him at that point to help you, by not telling anyone what had happened, and to help you cover it up if anything serious had happened. You were initially wearing your blue pyjamas and sandals. After this occurred you went in and changed, into dark pants and a light coloured shirt. You ran from your house to the driveway.
14 During the committal proceedings Mr Karkanis said, that he had not seen the knife prior to Mr Papadopoulos being killed and said, that he thought that it must have been in your pocket. You were of course wearing pyjamas. Whilst I accept that Mr Karkanis may not have seen the knife, I do not accept that it was in your pocket or hidden in any particular manner. Mr Karkanis agreed that things had happened very fast.
15 The area that is disputed between you and the Crown is, what is contained in your record of interview, which I shall go to in a moment, but in relation to these matters Mr Karkanis was cross-examined at the committal. It was put to him that in his statement he said that 'you ran back at Andonios who also moved towards Periklis'.
16 The cross-examination is as follows:[1]
17 Counsel submitted that, what was contained in your record of interview contains a clear disputation with what was said by Mr Karkanis, and that, I ought not be satisfied to act upon the evidence of Mr Karkanis as to the circumstances of the killing.
18 Unfortunately, there are no numbers to the questions and answers that were asked, so I shall refer to them only by page number. Your first explanation about what occurred is found at page 258 of the depositions, in which you indicated that you have gone outside, approached Mr Mirtsopoulos near the garden area, put your hand on him to say we should not be fighting over tomato plants and that he, the deceased, started straight away to punch you, and that you were holding the knife because you were eating the pear . You then continued:
19 At page 264, you told the police that you took the knife out unconsciously, that you just had it in your hand, you'd been cutting fruit.
20 The language used in the interview was a little confusing as sometimes the interpreter spoke about you in the third person and other times as though he was you.
21 At page 265, you were asked (through the interpreter) by this time how were you feeling and your response was:
At that stage there was nothing wrong he was talking to [me] like he was talking with me now. When he started hitting me, I had to defend myself. I went backwards and I've got some problems with my health, [I have] got a big health problem with [my] health, broken...
To which you interrupted the interpreter and said in English:
four ribs and shoulder and then I have six stitches in my leg, I have big problem I can't stay you understand me.
I can't stay still because he can't move his leg. Even if I wanted to defend myself with my hands I can't do it because I'm hurting a lot, I'm in a lot of pain. When he started hitting me constantly, that time don't know what happened with the knife. I went like this with the knife and I think, I think, I tried to scare him somehow ok and because [I] knew that [I] couldn't defend [myself] because of [my] physical medical problems the way I had my hands stretched out with the knife, he came onto the knife.
The interpreter was asked to explain in more detail and he continued, saying:
Ok, he, because he was coming towards me, towards Periklis, he fell on the knife. George, even George did not see the knife because it's obvious when you intend to use the knife you can see, you use the knife to finish someone off.
You were asked more detail about why you moved the knife from your left hand to your right hand, and you said:
that you had the knife in the left hand before the argument.
I was going to go in the kitchen to wash it because I was using it to eat with and I didn't have time and I didn't have time to put the knife away and as the other person came you put it on from the left hand to the right hand or I moved it to the right hand when the trouble started on during that, yeah, that time.
You said: because I could not defend myself with my hand, before I changed the knife from the left hand to the right hand, I was trying to protect myself or defend myself with my right hand. I am not sure what repercussions this particular hit would have on [my] thumb but when [I] saw that [I] was hit here, he was hurting.
I don't have any alternative but to use the knife to scare him with and change the knife from the left hand to the right hand.
You were asked specifically about who advanced on who at page 272 to 273:
22 Your counsel indicated that these statements in your record of interview were consistent with the factual matters that he submitted demonstrated that Mr Mirtsopoulos could well have fallen towards you, landing on the knife rather than you advancing upon him, with the knife being utilised by you in an aggressive manner. He relied upon, what he submitted were the factual aspects of you being on a grassy area, the deceased possibly having slippery-soled shoes on at the time and there being a hose around the area, that could have caused a tripping.
23 Having examined all of this material, I am satisfied beyond a reasonable doubt, that what Mr Karkanis had to say as to what occurred at the premises of the yard that night was the true and accurate version of what occurred, that is, that after he separated you from Mr Mirtsopoulos you took some steps away and then returned and advanced swiftly towards Mr Mirtsopoulos with the knife in your right hand, having changed it from your left hand. Mr Mirtsopoulos advanced approximately a step towards you, at some time, but that you ran at him and used the knife with a severe level of force upon him, one stab wound only, all of which is consistent with what is contained in the Crown summary.
24 I also have to take into account your personal circumstances, a number of which I have already mentioned in the history of the offending. You came from a very poor farming family in a village in Greece. You were unable to continue at school as a result of the poverty in which your family lived and you left school at the age of 16, you commenced working as a painter, as I understand it, as the equivalent of an apprentice. It was in 1969 that you migrated to Australia, before returning to Greece in 1974 with your then pregnant wife, you had a son after your return to Greece, you and your wife had already had a daughter who went with you back to Greece. Your marriage was described as being at an end shortly after the birth of your son, but you and your wife remained together due to religious beliefs and pressures of life in a small village, you having returned to the village where you grew up. You regained employment as a painter in Greece and worked in that capacity until you were gaoled for the murder of your cousin in 1992. I have received almost no other personal information, apart from the fact that you are concerned about the welfare of your two children who still reside in Greece, particularly their financial welfare post the Global Financial Crisis and specifically its impact on your children and generally upon Greece.
25 I have no information whatsoever as why you returned to Australia, leaving your two children and your wife in Greece. I can make no findings of fact based upon any matter connected to those issues.
26 Mr Dimitrios Polizos was called and spoke on your behalf, he is a person who has known you from the time of your arrival in Australia. He gave evidence that when he was in Greece about five or six years ago, you got in contact with him and asked if he would assist you to return to Australia, as you had been in gaol and had been financially ruined. He assisted you to return and provided accommodation at a house his company owned in Moorabbin, where you remained until you moved to the house in Clayton. You did some work as a painter, when it was available. He explained that you were a close family friend and you spent holidays and religious days with him and his family. He gave evidence about visiting you in prison whilst you have been on remand, where you have talked of your regret. He spoke of your sorrow that this had happened to you, and your remorse that his death would put you in gaol. Having heard the witness, I take that as being difficulties in English not being his first language, and that what he was indicating was that you were remorseful for both killing Mr Mirtsopoulos and ending up in gaol. I will accept his evidence in that manner. You were at the time of killing and in your interview with the police, more concerned with your own welfare and having to spend time in prison, than with the death of the deceased man. I see little to indicate that the situation has altered. Your plea and the evidence of Mr Polizos I take as demonstrating some limited remorse.
27 There is little more that could have been said on your behalf. You are a 67 year old man who has now killed two people in two separate incidents. Both of them over what could best be described as trivial matters, on the limited information that I have. You have pleaded guilty to manslaughter, and you are entitled to have that plea recognised and given weight in mitigation of your penalty, as is required by Parliament. That plea recognises that you did not have an intent to kill or cause really serious injury, but that you did commit an unlawful and dangerous act, that resulted in the death of a fellow human being.
28 The dangerous act was that of carrying and using a knife in an argument, that was just fisticuffs. Even on your own version, the best version put forward, you "held the knife out" and "stretched your hand to show him the knife" and "tried to scare him" Mr Mirtsopoulos was an unarmed man, he was elderly - being 8 years older than you and your behaviour, in using his garden bed he had prepared for his vegetables, was deliberately provocative. You were both, it would appear, grumpy old men, who were intent on being unpleasant and difficult towards each other. To allow that unpleasantness to descend to the level where Mr Mirtsopoulos died is appalling. One would have expected that after 16 years in a Greek prison for murdering your cousin, the last thing you would wish to do is kill another human being and ensure that you spend the majority of what is left of your life also in prison. However, that it where your actions and your demonstrated arrogance and hostility towards Mr Mirtsopoulos has led you. If it were not for the acceptance of the plea of manslaughter by the Crown, you could have certainly expected to spend the whole of the rest of your life behind bars. However, you have pleaded guilty to the offence of manslaughter and the Crown have accepted that plea, and that will be reflected in the sentence I pass upon you today.
29 Your counsel submitted, that you have little in the way of prior offending, and I ought to be satisfied that you are not a danger to the community, with little need for specific deterrence. I reject that submission totally. You had no prior convictions before the offence of murder in 1992, that is accepted, but the fact that you have not committed further offences, whilst in custody, does not make you a less dangerous person. You were released from prison in February 2008 and by October of 2011 you have killed another person. Very few people in our community kill one person, it is a rare person who kills two people, on separate occasions. It is clear to any right thinking person that personal deterrence is a significant sentencing factor. The issue of protection of the public is a matter of some significance, whilst general deterrence is also of great importance in a killing committed over such a petty and minor issue.
30 Balancing all of the matters to which I have referred, including, but not limited to, your plea of guilty, your age, your prior criminal history, your personal circumstances including the conditions under which you will serve your sentence, together with specific and general deterrence, protection of the community, the need to impose a just and appropriate sentence, denunciation and punishment, you are convicted and sentenced to be imprisoned for a term of 11 years and six months. I direct that you are to serve a minimum of 9 years before becoming eligible for parole.
31 Pursuant to s 6AAA of the Sentencing Act - I declare that the sentence I would have imposed but for your plea of guilty would have been 13 years with a minimum of 10½ years.
32 I declare that there have been 538 Days (including today) served in pre sentence detention in relation to this matter and that such be noted in the records of the court.
33 Application for retention of forensic sample s 464ZFB(1) is granted.
I certify that this and the 14 preceding pages are a true copy of the reasons for sentence of King J of the Supreme Court of Victoria delivered on 9 April 2013.
The Queen
Papadopoulos [2013] VSC 134