The Queen v Xypolitos [2013] VSC 485

Supreme Court of Victoria|2013-09-06|Before: CURTAIN J

CRIMINAL LAW - Sentencing - Murder - Jury verdict - Victim de facto stepson aged 17 ½ years - Struck to the head with a hammer 2-3 times - Dismemberment of the body and concealment of the crime over 8 ½ years - Very little, if any, prospects for rehabilitation - 27 years' imprisonment with a non-parole period of 24 years' imprisonment.

**1 John Xypolitos, you have been found guilty, by jury verdict, of murder and have admitted a prior conviction. In 2003 Gary Greg Adams was, in effect, your stepson. You had been in a relationship with his mother, Jo-Ann Adams, since 1998 but by July 2003 the relationship was coming to an end. Nonetheless, the three of you remained living together at 22 Raisell Road, Cranbourne West and you exercised dominion over the household.

2 Gary Greg Adams was an only child. In June 2003, he had turned 17. Gary was deemed to be special needs due to learning difficulties. He was a slow learner and had difficulty reading and writing. He was tall and slender, wore glasses for a squint and spoke with a lisp. He was interested in skateboarding, ice hockey and BMX bike-riding. Although your relationship with him in the earlier years had been good, by 2003 the relationship was less than harmonious. You were a disciplinarian and tended to belittle him. You told the police that you were very hard on Gary, were a "mongrel" towards him and treated him harshly. Gary confided to his friends that he did not like the fact that you were not his father and that there had been arguments between you, which, it appears on at least two occasions, had involved some violence. So as to avoid further arguments with you, Gary came to an arrangement with his mother that he would spend two to three days a week away from home, provided she knew where he was. To this end, a mobile phone was purchased.

3 As at December 2003 it had been mutually agreed between you and Jo-Ann Adams that you would leave the Raisell Road house in January the following year and live elsewhere. Gary knew of these arrangements.

4 On 5 December 2003, shortly before 6.00pm, Jo-Ann Adams came home from work. You were at home preparing the evening meal. Jo-Ann saw that Gary's skateboard was in its usual position by the front door, but his bike helmet was not there. She asked you if Gary was home. You told her he had gone back out. In fact, Gary was dead, you having hit him two to three times to the head with a hammer, and his body was then, at that very time, resting in a child's plastic swimming pool in the shed in the backyard of the house.

5 Mrs Adams gave evidence that there was nothing out of the ordinary about your demeanour that night, which was confirmed by her sister, Machelle Crichton, who visited the house later that night. There they spoke about their father's hospitalisation. The next morning Jo-Ann Adams had a quick look into Gary's room and saw that he was not there. When she returned to the house later that day she looked more closely into his room and saw Gary's backpack, which he never went without, and a half-eaten packet of chips and some lollies lying beside the bed. Gary's skateboard was gone and his bike was at the side of the house. Mrs Adams tried to contact Gary on his mobile phone on that Saturday night, but the phone rang out. By Monday night, she had become very concerned about him and made a number of calls to his friends and to his father, to no avail.

6 Mrs Adams reported Gary as missing to the Cranbourne Police Station on the Wednesday, and later to the Narre Warren and Frankston Police Stations. She was told to see if Gary came home for Christmas. She continued to make inquiries and, indeed, you drove her to places where she sought him out. You went with her when she bought Christmas presents for Gary in anticipation of his return and, at one point, in April 2004, it was agreed between you and she that you would leave the house at Raisell Road as an incentive for Gary's return. Of course, all the while you knew that Gary was never coming home.

7 The Missing Persons Unit became involved in 2004 and, in October and December of that year, you made two statements to the police. You told the police that Gary had come home that Friday afternoon to fix the chain on his bike, that you gave him the keys to the shed to get some tools, and then Gary had gone out again. You also told the police you were not responsible for Gary's disappearance.

8 In May 2008, you were again spoken to by the police. In a recorded interview with Acting Inspector Timothy Day, you told him that you had been "a mongrel to Gary" and you maintained that Gary had been working on his bike because the chain was broken.

9 In late 2010, Mrs Adams was at a public function where Detective Senior Sergeant Ron Iddles of the Homicide Squad had been the guest speaker. Mrs Adams approached him and expressed her concerns about the state of the investigation into her son's disappearance. Detective Senior Sergeant Iddles located the file and briefed Detective Senior Constable Hunt of the Homicide Squad, who then commenced a further investigation. In March 2011, Detective Senior Sergeant Iddles interviewed you and again you denied any involvement in the disappearance of Gary Adams.

10 The police persisted in their investigation and, through the adoption of very sophisticated means, on 12 April 2012 you eventually admitted that you killed Gary Greg Adams on 5 December 2003 and that the following day you dismembered his body by cutting it up with a hacksaw. You said that you bagged the body parts and left them in the shed for a week until you eventually disposed of them at various tips throughout Melbourne and that you buried other skeletal remains in the backyard of your mother's house in Oakleigh. Shortly after you made these admissions, you were arrested and taken to the offices of the Homicide Squad, where you were interviewed. You told the police that you were "under a lot of stress at the time, not thinking, obviously".

11 An excavation of the ground beneath a shed at your mother's house revealed a number of fragments of human skeletal remains, determined to be of an individual aged between 13 and 18. At your trial, by a notice to admit, you admitted that these remains were those of Gary Greg Adams.

12 It is remarkable that you did not tell anyone about your involvement in Gary's death for over eight years, including when very experienced police officers spoke to you, yet it cannot have been a topic far from your mind. You told a covert operative that you had built a shed over where you had buried the remains and extended the roof line so as to prevent aerial surveillance and that, on one occasion, you were in the process of digging up the remains when you were disturbed by a neighbour's dog. You intended to further cut up the remains with an electric air saw, and that you would dig down to where the remains were located from inside the shed, presumably so as to avoid detection. You also said that you intended to buy your mother's house when it was put up for sale. So, over the years, you planned what you were going to do so as to ensure the continued concealment of your crime and your involvement in it and all the while, until at least 2011, keeping in contact and remaining on friendly terms with Mrs Adams and no doubt observing her in her grief and despair and, indeed, her steadfastness and determination to find out what had happened to her son. Indeed, Mrs Adams gave evidence that she asked you in 2011 if there was something she needed to know that she wanted to hear it from you and not the police. She had asked you specifically if there had been an argument "because we can deal with it if there was", she said. You remained unmoved and lied.

13 Mrs Adams' Victim Impact Statement was read to the Court by the prosecutor, Mr Tinney SC. Mrs Adams' persistent efforts in trying to locate her son and pursuing the investigation into his disappearance and death, including attending every day of the trial, speaks eloquently of a mother's enduring love for her only child, and the Court applauds her for her unfailing devotion not only to the memory of her son, but to the pursuit of justice for his killer.

14 Mrs Adams' statement speaks of the gross deception and manipulation she suffered at your hands in the days, months and years following Gary's disappearance. Your efforts to comfort her on Christmas and birthdays, the cruel charade that you engaged in for over almost 8½ years, when all the while you were the one and only person who knew what had happened to Gary, because it was you who had murdered him and disposed of his body in such a brutal and callous fashion.

15 Victim Impact Statements were also made by Machelle Crichton and Bromwyn Minihan, Gary's aunts, who read those statements to the Court. They each spoke of the impact Gary's disappearance has had on family life, not knowing what happened to Gary and where he was. For eight years at Christmas' and birthdays, they waited for Gary to come home. As Mrs Crichton said, his disappearance and murder cast "a grey shadow over the lives of the family, made even darker through not knowing what happened to Gary and where he was".

16 The murder you have here committed is a serious example of the most serious of offences. Little is known of what actually happened. You said it occurred in the heat of the moment. There was pushing and shoving and "Gary just probably grabbed a screwdriver" and tried to stab you with it, and you grabbed the hammer and swung out with it, hitting him to the head two to three times. You told the police that there had been pushing and shoving and Gary was getting "a little bit uppity" and rubbing you up the wrong way, it appears, about the impending separation. You said he came at you with a screwdriver, but he did not hit you with it.

17 None of this fully explains your conduct; apart from a spontaneous act perhaps borne of anger or frustration. Whether Gary did grab a screwdriver and tried to hit you or taunt you with it, or whether that was simply a gloss you put on the events, the fact remains that you struck him to the head two to three times with a hammer, a particularly savage assault, causing his death. The jury was satisfied that your actions were not done in self-defence; it matters not, in the circumstances of this case, whether your intention was to kill Gary or to cause him really serious injury.

18 You were effectively his stepfather. You were in a position of trust and care in respect of him. Gary was only 17½ years old and he was, after all, in his own home when you murdered him. Your subsequent degradation of Gary's body, your concealment of the crime and your cruel manipulation and deception over the ensuing years aggravates the circumstances attendant upon Gary's death. For these reasons, your offending is properly to be regarded as of a very high order and your moral culpability as very high indeed, warranting the imposition of a substantial sentence of imprisonment, so as to reflect the true nature and gravity of the offence here committed and give proper weight to the need to pass a sentence which will serve to punish you and act in denunciation of your conduct. Any sentence imposed must also serve to give effect to general deterrence and acknowledge the sanctity of human life. Consideration must also be given to specific deterrence, which carries particular weight in this case. You have shown no remorse and nothing can realistically be said about your prospects for rehabilitation. During your trial, I observed your demeanour to be particularly detached and at other times quite manipulative. You are, to all intents and purposes, a callous, brutal and cunning murderer. Very little has, and can be, said in mitigation of the penalty to be imposed.

19 I turn now to circumstances personal to you. You are one of four children and you have been supported in your present predicament by your eldest sister. Your parents came here from Greece in 1954. Your father is dead and your mother continues to live at the family home where you were living at the time of your arrest. That you would involve your mother in this dreadful crime by using her property as a burial site is just another example of the callousness of your behaviour.

20 You are now 57 years old. You have two daughters from two previous relationships, neither of whom are you close to. You have had a reasonably good work record. You are a qualified motor mechanic and have always worked in that and associated fields. In 2009 and 2010, you worked in the mines in Western Australia. Your prior conviction in 1993 for reckless conduct endangering life which resulted from an incident when you fired a shot into the window of the house where your then ex-partner lived. You told the police on that occasion that you were frustrated with access to your daughter and that you wanted to show the family you could fight fire with fire. Thus, your prior conviction is a serious example of a serious offence, committed, as here, in domestic circumstances.

21 Mr Tinney SC submitted that the serious nature of this crime, the lack of any obvious reason for its commission, the extraordinary steps taken by you to cover it up over a long period of time, your actions towards the body of the deceased and your prior conviction for reckless conduct endangering life are all relevant considerations in considering the weight to attach to general deterrence, specific deterrence, punishment, denunciation and protection of the community. Mr Tinney SC submitted that given all of the circumstances of the offending and matters personal to you, that a head sentence in the range of 26 to 30 years imprisonment with a non-parole period in the range of 22 to 26 years is here appropriate.

22 Mr Trood, who appeared on your behalf, submitted that whatever did take place arose spontaneously, that this was not a protracted assault, which was one of the aggravating features present in the case of R v Borg,[1] also a case of murder, degradation of the body and concealment of the crime, and that both the head sentence and non-parole period submitted by the Crown as appropriate is "a little high".

23 For the reasons I have previously given, I regard this as an extremely serious example of the most serious of offences and, as I said previously, your moral culpability is high. Little has been said which can mitigate the penalty to be imposed, other than you are now 57 years old and that you will be an old man if and when you are released from prison. I acknowledge that, at 57, each year spent in prison is a matter of significance to you, but given your lack of remorse and your very limited prospects of rehabilitation, if any, and what appears to be your lack of insight, coupled with the objective gravity of your offending, a very substantial period of imprisonment is nonetheless warranted. You will now have time to reflect upon your crime and the consequences of it.

24 The maximum penalty for the crime of murder is life imprisonment. Nonetheless, it is conceded by the crown that, in this case, it is appropriate to fix a term of years. Any sentence the Court imposes must address the nature and gravity of the offence here committed and serve to punish you and act in denunciation of your conduct. Any sentence imposed must also serve to protect the community from you, seek to specifically deter you from re-offending and give effect to general deterrence so that like-minded people will know that, should they commit a murder such as this, they will be met with condign and stern punishment.

25 Accordingly, for the crime of murder, you are convicted and sentenced to 27 years' imprisonment. I order that you serve a period of 24 years' imprisonment before becoming eligible for parole.

26 I declare that you have already served by way of pre-sentence detention a period of 512 days.**

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