District Court New South Wales Medium Neutral Citation: R v Hatzimanolis [2021] NSWDC 787 Hearing dates: 19 November 2021, 16 December 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Jurisdiction: Criminal Before: Haesler DCJ Decision: Contravene AVO: Sentenced to a term of imprisonment of 9 months. Wounding with intent to murder his father: Sentenced to a term of imprisonment of 9 years. Non-parole period of 5 years 5 months. Catchwords: CRIME – Contravene prohibition/restriction in AVO (Domestic) – wound with intent to murder (DV) SENTENCING - Relevant factors on sentence – guilty plea - defence of mental illness not put forward - long term schizophrenia - attack on his father - causal relationship between his mental illness and his offending – assessment of moral culpability –victim impact - special circumstances need for offender to be kept in and released to a mental health facility Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes (High Risk Offenders) Act 2006 Crimes Act 1900 Mental Health Act 2007 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Elturk v R [2014] NSWCCA 61 Engert v R (1995) 84 A Crim R 67 Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 McCullough v R [2009] NSWCA 95 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Tepania v R [2018] NSWCC 247 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Alexander Hatzimanolis (the offender) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the offender) Solicitors: Legal Aid NSW (for the offender) Mr M Rollestone (for Director of Public Prosecutions) File Number(s): 2020/00365916 SENTENCE – EX TEMPORE REVISED 1. Schizophrenia is a chronic and severe mental disorder that affects many people. It is characterised by distortions; in thinking, perception, emotions, language, sense of self and behaviour. It is a disease frequently associated with considerable disability and impairment in psychosocial function. It leads to other significant problems, including drug use, homelessness, discrimination and victimisation. People with the disease are often vulnerable but it can also, as the matters presently before the Court indicate, make others in the community vulnerable, particularly those who care for those with a schizophrenic illness. 2. There is no dispute that Alexander Hatzimanolis has for many years suffered from schizophrenia. It is not in any dispute that since 2015 he has been admitted to psychiatric facilities regularly. He was last discharged on 26 March 2019 after a lengthy stay at Shellharbour Hospital. He was then subject to a Community Treatment Order and managed by a local mental health team. Some of that management appears to have fallen by the wayside during the pandemic. 3. Although, according to material before me, he had a defence at law available to him because of his mental illness, Mr Hatzimanolis has accepted his guilt and entered a guilty plea to a charge of wounding with intent to murder his father. He is fit to plead. That offence carries a maximum penalty of 25 years' imprisonment: s 27 Crimes Act 1900 NSW. For an offence which, taking into account only objective features, falls in the middle of the range, Parliament has said there is a standard non-parole period, that is, a standard minimum sentence, of ten years' imprisonment. 4. Mr Hatzimanolis has also asked that I deal with him for a related summary offence of contravening a restriction in an Apprehended Violence Order; s 14(1) Crimes (Domestic and Personal Violence) Act 2007. 5. Although Mr Hatzimanolis' pleas of guilty precluded his mental illness from absolving him of criminal responsibility, his mental state at the time of offending was and remains relevant. It remains relevant to the assessment of his moral culpability, it remains relevant to my assessment of the objective seriousness of the offence, and it remains relevant to how I formulate and structure the present sentence: Elturk v R [2014] NSWCCA 61. Agreed facts 1. Every offence for sentence should start with a summary of what has occurred. There are agreed facts before the Court. In October 2020 an Apprehended Domestic Violence Order was made at Wollongong Local Court against Mr Hatzimanolis. The person nominated as in need of protection was his grandmother. The terms of the Apprehended Domestic Violence Order stipulated that the accused must not assault or threaten her or anyone she has a domestic relationship with. Her son, the offender's father, was living with her at the relevant time. He was entitled to the protection of that order. 2. On 24 December 2020 the offender left his home in Corrimal Street to visit his father in a street nearby. After a meal the two went to visit family for Christmas. His father drove; the accused was a passenger. They returned to his father's home at about 9pm. It appeared to his father that the offender had lost something. He said, "What are you looking for?" A set of keys had been left inside the father's and grandmother's house. As his father went into the house to get the keys, Mr Hatzimanolis got out of the car, took a black kitchen knife from his bag and followed his father into the home and into a bedroom. 3. When his father gave him the keys, Mr Hatzimanolis grabbed him from behind and placed him in a headlock. He wrapped his left arm around his father and, with the knife in his right hand, stabbed his father in the throat in a slicing motion. His father put up his hands and pushed the offender away. Then he lay back on the bed. He kicked out at Mr Hatzimanolis. The offender then lunged at him and tried to stab him in the throat again. His father continued to kick several times and fell back into a door. He was screaming, "Alex, Alex." His son was yelling abuse at him, abuse which was clearly related to a delusional belief. He left the home, throwing the knife into the front garden and returned to his own unit. 4. His father tried to call Triple-0 but he had so much blood on his hands that he could not operate the phone. He then went into his own car and drove the 500 metres to Wollongong Hospital. He presented at emergency with a deep penetrating wound to his anterior neck, approximately 3 centimetres in size. He underwent surgery and was found to have; laceration of the endolarynx between the true and false cords posteriorly, lacerations of the right sternohyoid and sternothyroid muscles of the anterior neck and a right sided thyroid lamina transverse fracture with a medially fragmented piece of cartilage. 5. He had surgical treatment, including sutures and drains. He spent some time in the high-dependency unit at the Wollongong Hospital. He was discharged to a ward after 24 hours. He was discharged from hospital on 29 December with instructions to follow up. 6. Police arrested Mr Hatzimanolis at his home later that evening. He told them where the knife could be located. He participated in an electronic interview, in which he admitted that it was his intention to kill his father and that he did not expect his father to survive. He said he had had some drugs and alcohol that day. He also disclosed that he had not taken his medications for his schizophrenia in the days prior to the incident. 7. His guilty plea was entered in the Local Court. I must accordingly reduce the otherwise appropriate sentences by 25% to take into account the utilitarian value of that plea. Objective seriousness 1. Turning first to the attempt murder charge, the two key elements of that charge have been met, that is, an intention to murder, that is, take a life, and the wounding. It is clear, looking at the matter objectively, that this was a planned and premeditated offence. The nature of the weapon, a knife, has to be taken into account. The victim of the matter was effectively ambushed in his own home and wounded. The location of the wounds is significant. If one looks solely at the nature of the wounds, they, themselves, do not fall into the highest category, as Mr Fraser points out by reference to the authority of McCullough v R [2009] NSWCA 95. However, as the Crown point out, it is the location of the wound that is critical, but that location founds a key element of the offence, that is, the intention to murder. 2. The wounds themselves, with the treatment received, healed; that is, at least the physical wounds healed. The offender did not persist, although he left his victim without aid and only the victim's desperate efforts saved his life. The offence, given the location of the wounds and the weapon used, carried with it the likelihood of death, which was high, but the lasting physical injury was prevented by surgical intervention. The motivation to commit the offence was strong, so far as the offender was concerned, but the basis for it was totally delusional and the produce of his mental illness. 3. It is unchallenged in these proceedings that there was a causal relationship between his mental illness and his offending. A judge, in such circumstances, must consider the moral culpability of the offender, that is, their blameworthiness for the offence. Here it is relevant to my assessment of the objective circumstances, and I must take into account his mental state; a point made in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and Tepania v R [2018] NSWCC 247. Moral culpability is also often taken into account when assessing the subjective case for an offender. 4. A sentencing judge does not engage in a staged approach to sentencing, putting every matter into separate categories. To do so often results in double counting matters in aggravation or mitigation. A sentencing judge has a duty to take into account all relevant considerations, articulate what those considerations were and synthesise them. Ultimately, as here, this must result in a sentence with a period that must be spent in custody and a period that may be spent on parole. 5. The facts here reveal a clear intention to kill. And, the victim would have died had he not been able to drive himself to the hospital. If there had been further persistence he obviously would not have survived. The wounds themselves were of a type that enabled survival with surgical intervention. They are all matters I will take into account. Victim Impact 1. When I come to sentence, I take into account the statement of the offender's father, his victim. He wrote to me: "This event has impacted me physically, emotionally and psychologically and, though I am actor, I do not wish to make swordplay of the obvious or what I must contend with concerning my ongoing health. My main concern is in regard to my mother who was nearby the scene at the time"-- 1. He speaks of the harm that his son's condition has done to his mother. He speaks of the care that his mother had for him. He fears for his mother if anything were to have happened to him, as he is her carer. He then concludes: "At the same time I still seek to understand and come to terms with the health condition which has affected my son since early youth, which I believe resulted in his actions and which I hope his coming to terms with will eventually lead to healing for himself and others." Breach Apprehended Domestic Violence Order 1. I must also sentence for a breach of an Apprehended Domestic Violence Order. This offence indicates, objectively, a complete disregard for the Court's order. Any breach of such orders, particularly in a way such as this, undermines the authority of the courts and show, in a sense, the ineffectiveness of the courts attempts to extend protection to people at risk of harm from others. If court orders are ignored, as Mr Hatzimanolis did when he attacked his father, the law and the courts' capacity to protect the vulnerable is diminished. Generally, such matters must be punished severely and often by a separate and independent sentence. Maximum penalty and standard non-parole period 1. The maximum penalty here is 25 years, the standard non-parole period ten years. I must give content to the standard non-parole period. Careful attention to the maximum penalty and the standard non-parole period is required. Both are important guides to the exercise of my sentencing discretion but, in doing so, again, as the Court made clear in Muldrock, reflecting what was said in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5, I cannot engage in a staged approach to sentencing. Any guidance must be synthesised, along with all other relevant matters. Criminal Record 1. Mr Hatzimanolis has a criminal record. While he is not entitled to the leniency often given to first offenders, this is his first custodial sentence. There was an offence involving a knife in 2017 but, more importantly, a number of breaches of community based orders, which have to be taken into account. The material in relation to them was put before me this morning in exhibit B. COVID 19 1. Mr Hatzimanolis has been in custody during the COVID pandemic. Some material before me indicates he has been adversely affected by the pandemic. Specifically, he has not had a chance to receive psychiatric treatment, which he so sorely needs. He has also, as I have heard evidence in many cases, been subject to the restraints that have been imposed on all prisoners in an attempt to prevent COVID entering the gaols. There are more lockdowns. There is restricted access to programs, visits and work. He may face those restrictions again. They are matters I take into account. Subjective case 1. Mr Hatzimanolis was born in 1989. He grew up locally. He was an average student but left when quite young. He was able to get work and he was able to gain admission to the university. But it appears, since 2013, perhaps earlier, his life has been blighted to his underlying psychiatric illness. Associated with that illness has been the use and abuse of illicit drugs and alcohol. 2. I have had the considerable benefit of two reports from Dr Furst, a forensic psychiatrist. The first report addressed the question of fitness to plead and the availability of a defence based on his cognitive impairment or his mental state. It is clear from the first report, which I accept, that the offender was not fully aware of the consequence of his action due to his mental illness. 3. Dr Furst sets out Mr Hatzimanolis' history. Importantly, he has referenced the Shellharbour Hospital records, and set out what occurred during those admissions and following his discharge, the Community Treatment Order on 26 March 2019. The summary of his community care over the preceding two years was authored on 5 January 2021. Antipsychotic medication was prescribed. It appears that an important review meeting, planned for November 2020, never took place. 4. Dr Furst's summary indicates that Mr Hatzimanolis' mental state and symptoms had been fluctuating over the preceding months. He presented with chronic delusions that intensified following a fire at his home and were complicated by his ongoing substance abuse. He lacked insight into his need for medication and he had been falling behind and/or was inconsistent in relation to attending for his medication injections. 5. Dr Furst, in his second report, reviews the Justice Health records, they show that there was noticeable paucity of psychiatric assessment reviews between his reception in custody in December and over his months on remand. 6. Mr Hatzimanolis was only first seen by a nurse mental health practitioner on 22 April 2021, he was reviewed again in May 2021, and he was seen by another mental health nurse on 15 June 2021. He had been receiving his medication and it would appear that that was the main focus of these visits. 7. When Dr Furst reviewed the records in October 2021, he noted that no referral had been made for Mr Hatzimanolis to be reviewed by a psychiatrist or to be admitted to a mental health pod or, at least, any such referral was not documented in his file up until the last entry note on 27 July 2021. 8. Dr Furts also noted that Mr Hatzimanolis, over the several months since his arrest, appears to be neglecting his self-care and had shown presentation consistent with negative symptoms of schizophrenia. 9. I am aware that Mr Hatzimanolis is housed today at the Clarence Correctional facility. He is not, as far as I am aware, in a mental health pod. Given the history before me and given Dr Furst's opinion, this raises questions about whether Corrective Services are properly exercising their duty of care, both to Mr Hatzimanolis and other prisoners with whom he will be and is being housed. 10. Dr Furst recommends that he be treated at the Long Bay Hospital as an involuntary patient. He concludes: "Mr Hatzimanolis is a mentally ill person within the meaning of the Mental Health Act. He needs much more regular and assertive psychiatric review and treatment than he has received over the last 11 months. The level of psychiatric care, or lack thereof, is substandard, such that Mr Hatzimanolis has been psychotic for many months." 1. In terms of Mr Hatzimanolis' prognosis Dr Furst notes that anyone with the underlying conditions suffered by Mr Hatzimanolis would be better off if placed in a long term hospital setting with involuntary detention under the Mental Health Act 2007. He says there are still pathways available in this respect, even though he has not decided to raise the mental illness defence. They would include placement in the Long Bay Hospital as a correctional patient and then transfer to another hospital when he is eligible for parole. He suggests Morisset or Bloomfield. A pathway such as this, with gradual implementation of leave privileges and eventual use of a community treatment order, would be of great assistance in preventing Mr Hatzimanolis from reoffending in a serious manner and also would be of great assistance in relation to his overall mental health and adjusting to living in the community. A copy of both of Dr Furst's reports will go with the warrant. Synthesis 1. Sentencing offenders who suffer from mental illness raises many difficult questions, both of judgment and assessment. Those problems are exacerbated when very serious crimes such as these are committed. They have been described by Basten JA as, "to an extent intractable:" Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1]. They require a "sensitive discretionary decision:" Engert v R (1995) 84 A Crim R 67, Gleeson CJ at 69. 2. A judge in any sentencing exercise has to consider the purposes of sentencing set out in s 3A and common law principles. Underlying all these purposes is the need to protect the community. Sentencing is also concerned with deterrence. Here particularly specific deterrence when it comes to encouraging offenders to take their medication. There are also purpose relating to general deterrence, retribution and reform. There are cases where, because of a person's mental illness, they present as more of a danger to the community and, in such circumstances, consideration of community protection may result in a longer sentence. But, more often than not, where someone has an underlying mental condition that is causally related, human sympathy would say that you simply would not expect him to get the same sentence as someone else. 3. As the decisions in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 and Engert made clear, the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead, therefore, as an automatic or logical consequence, to a reduction in the sentence because of its effect on moral culpability. That said, it is clear from my earlier remarks that I do, and believe I must, take into account the offender's reduced moral culpability. The principles I take into account, some of which I have already referred to, were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1: * Where the state of a person's mental health contributes to the commission of the offence in a material way, their moral culpability may be reduced. * There is also less need to denounce the crime. * It may also have the consequence that an offender is in an inappropriate vehicle for general deterrence." Those principles applies here. 1. There is no need to make an example of this offender. Nor is there a need to signal by this sentence the retribution that would fall upon others (who were not suffering an underlying mental condition) who stabbed another in the throat with intent to murder. 2. It is clear from all that I have read and digested that the custodial sentence will weigh more heavily on Mr Hatzimanolis because of his illness. He has been in custody since 24 December. There will be a short fixed term sentence for the breach. I then have to formulate a non-parole period which takes into account that it will be accumulated on the breach. The minimum period must be the appropriate minimum period for the offender to spend in custody. That minimum period has to reflect the seriousness of what he did and all the principles to which I have already referred. 3. I have to consider Mr Hatzimanolis' prospects for rehabilitation. On the material before me, the offender presents a danger both in and out of custody. He requires aggressive treatment for his underlying mental condition. He is still suffering from that condition and still he has psychotic symptoms, which have not so far ameliorated to any significant extent during his time on remand. 4. In submissions, Mr Rollestone, solicitor for the Director of Public Prosecutions, indicates that, while they accept the diagnosis, there is still a need, as there is in most sentences, for some vindication of a victim of violence. He submitted that, specific deterrence is important. The offender was aware of his condition and he was aware of his potential dangerousness. He was subject to court orders. He was able to comprehend those court orders, but he was nevertheless noncompliant with the medication. The offending shows a serious escalation in his offending. The key to both the original submissions those reiterated today is the need for the Court to focus on community protection. 5. It is accepted, as the High Court said in Veen v The Queen, that any sentence must be proportionate to what occurred and there is no power of the Court to extend a sentence by way of some form of preventative detention. That is impermissible. Nevertheless, community protection was the main focus of the Crown's submission. So far as the wounding, they agree that, while technically the wounds themselves were not as severe as many, their principal point goes to the element of the offence, the intent to kill, but the nature of the wound, where the wound occurred and the weapon used should not be downplayed. The Crown submit that, should special circumstances be found, nevertheless the non-parole period must adequately reflect the seriousness of the offending, community protection and specific deterrence. 6. Mr Fraser drew my attention to McCullough and the need to differentiate, when I come to formulate an appropriate sentence, between what is an element of the offence and the wounding itself. He accepted that release to parole could only take place after a conclusion by the State Parole Authority that they were satisfied it was in the interest of the safety of the community to do so. But he submitted that special circumstances had to be found because, in a case such as this, because the fixing of a parole date might provide a greater incentive for this offender to be transferred to a facility that would better be able to manage him and manage his release to the community as an involuntary and as a correctional patient: s 73 Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 7. A decision to have Mr Hatzimanolis made a correctional patient can be made prior to the expiry of the non-parole period. But no one in Court has been heartened by the lack of progress on that front, to date. And, indeed, by the apparent failure to have him seen by a psychiatrist. 8. Synthesising all those factors. A fundamental precept of the criminal law is that a sentence should not be increased beyond that which is proportionate to the crime, nor to extend the period of protection of the community. That distinction, as was pointed out in Muldrock, may not be easy to draw. Here Mr Hatzimanolis' prospects for reintegration into the community at present are poor. I have had regard to other cases to which I have been referred, but every case and every sentencing exercise is individual. 9. He committed a serious offence upon his father in breach of court orders. His father was lucky to survive. His father has approached the matter in a mature way. He still cares for his son. He, as would any thinking person in the community, would expect Mr Hatzimanolis to receive all the treatment possible, not just for his own benefit but for the benefit of those who is incarcerated with and for the community on his release. The assessment of the likelihood of reoffending is appropriately left to the State Parole Authority, but much will depend on what services and assistance can be given to him while he is serving his sentence. 10. The public's protection can and will be ameliorated by the success of the treatment provided to the offender, But I am left with a premeditated offence, the motive for which is founded in delusional beliefs, by an offender who has not been given the assistance that he requires. There will be a finding of special circumstances. I will give him the full benefit of his plea of guilty. 11. It is also clear, and I have recommended, that the sooner Mr Hatzimanolis becomes a correctional patient, the better his condition can be treated. And that more than anything else will be fundamental to whether he is granted parole and where he is granted parole to. He would be, in my view, better treated in a mental health facility, or at the very least at the gaol hospital. Orders 1. I take into account the plea of guilty. The formal orders of the Court are that in relation to both matters you are convicted. 2. For the breach of the apprehended violence order there will be a sentence of imprisonment of nine months. That sentence will date from 24 December 2020. 3. In regard to the offence of cause wounding with intend to murder there will be a sentence of nine years. There will be a non-parole period of five years and six months. It will date from 24 February 2021. Mr Hatzimanolis will be eligible for consideration of release to parole on 23 August 2026. There will be a parole period of three years and six months from that date. The total sentence will expire on 23 February 2030. 4. I am obliged to tell the offender, and I am sure it will be explained by his lawyers, about the existence of the Crimes (High Risk Offenders) Act 2006, which applies to this offence. 5. Executive action could, if an order is made in the interest of the community, mean that you could be detained or subject to conditions after you have served your sentence. It is not a matter I take into account in mitigation but it is a matter that must be explained. 6. AUDIO VISUAL LINKS CONCLUDED AT 11.28AM ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2022