R v Maletsas [2022] NSWSC 712

Supreme Court New South Wales

Medium Neutral Citation: R v Maletsas [2022] NSWSC 712 Hearing dates: 20 May 2022 Date of orders: 20 May 2022 Decision date: 20 May 2022 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Sentence to 19 years imprisonment with a non-parole period of 14 years and 3 months Catchwords: CRIME – murder – sentencing – unplanned attacked caused by offender's self-induced intoxication – intent to cause grievous bodily harm – longstanding mental health issues Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Sentence Parties: Regina Stellios Chris Maletsas Representation: Counsel: K Prince (Crown) T Edwards (Offender)

Solicitors: Solicitor for Director of Public Prosecutions Justine Hall Solicitor File Number(s): 2020/266673 Publication restriction: No

Judgment 1. Stellios Chris Maletsas is before the court for sentence for the murder of Marks Campbell at Erskineville on 13 September 2020. Mr Campbell was killed shortly before 9.00pm that day. The offender was arrested in the early hours of the next morning. He was remanded in custody until his trial, which commenced on 27 April 2022 and concluded with the return of the jury's verdict on 11 May 2022. 2. The maximum penalty is life imprisonment. That sentence is mandatory under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) if the court is satisfied that the culpability of the offender is so extreme that community interests can only be served by a life sentence. This is not such a case. The court must determine an appropriate finite term in years. A standard non parole period of 20 years is specified in the Crimes (Sentencing Procedure) Act and must be considered. A shorter non-parole period is called for in this case. 3. The deceased and the accused occupied separate units in a public housing complex on the south side of Swanson Street, Erskineville at numbers 25-31. There were four blocks of apartments at that location, each being a long, narrow building of two storeys oriented on a north-south axis, with lawns and trees in between. Each block had four units at ground level and four units at the upper level. Block 1, in which the offender resided with his partner, Ms Aishee Hammond, was the most easterly of the four buildings. It fronted on to a cross street, Elliott Avenue. The deceased's unit was on the upper level of block 3, at the northern end nearest to Swanson Street. 4. An entryway about a quarter of the way down the eastern side of Block 3 contained stairs that gave access to an upper landing, off which was the door to the deceased's unit. At ground level the doors off this entryway served the unit below the deceased's and the next ground floor unit to the south. Outside the entryway was a concrete path running the length of the east side of the building. Adjacent to the path was the lawn between Block 3 and Block 2. 5. In determining the facts that bear upon the gravity of the offence I have applied the criminal standard of proof in respect of all matters that contribute to greater seriousness, and the civil standard in finding mitigating circumstances. In considering the impact of this murder upon the community, I have taken into account the victim impact statement provided by the deceased's sister, Ms Judith Patigas, that was read in court during the sentence proceedings. 6. In September 2020 the deceased was 57 years old and had lived in his unit for at least seven years. The offender was 28 and had occupied his unit for about nine months. Ms Hammond had commenced living with the offender in about April 2020. The deceased came from Zimbabwe. All that the evidence discloses about his background is that he was unemployed and that from 2009 he was intermittently the subject of police attention for minor disturbances of the peace, mostly associated with his heavy alcohol consumption. The deceased's conduct included shouting abuse at other residents and passers by, playing very loud music, resisting arrest, intimidating other residents and making threats of violence against them. 7. During 2020 prior to September the offender and the deceased had angry verbal exchanges with each other on a number of occasions and at times came near to physical conflict. The offender kept two dogs in a laundry within the complex and he and the deceased quarrelled over the dogs. From about June 2020 Ms Hammond had encountered the deceased occasionally, and she felt that he intruded upon her physically and caused her to feel alarm. 8. By 2020 the offender had been a heavy user of alcohol, prescription drugs and illicit drugs for more than a decade. Shortly before the trial he was interviewed by Dr Adam Martin, a forensic psychiatrist qualified by the Crown. He told Dr Martin he had been drinking a bottle of spirits a day for a lengthy period leading up to 13 September 2020. Other evidence suggested a lower or variable rate of alcohol consumption but also established that during 2020 the offender had frequently consumed Valium, Xanax, cannabis, methamphetamine, cocaine and heroin. I am satisfied beyond reasonable doubt that on the evening of 13 September 2020 the offender was acutely intoxicated. He had consumed both prescription and illicit drugs that morning. 9. During the afternoon of 13 September the offender and Ms Hammond went shopping in Marrickville. Their route home, on foot, took them from Newtown Railway Station in a south-easterly direction along Erskineville Road, which becomes Swanson Street after crossing the rail line at Erskineville station. They continued east along Swanson Street on the southern footpath. As they passed the deceased's unit block, some abuse was shouted between the offender and the deceased. I am satisfied that the offender said words to the effect "Go back to Africa" or "Go back home" but I cannot reach any conclusion about what the deceased said or who initiated the exchange. 10. The offender and Ms Hammond continued walking to their own unit. Immediately upon arrival there, the offender said to Ms Hammond words to the effect "I'm going to find out what his problem is" and he left the unit to walk to Block 3. Ms Hammond followed. From some location that is not revealed by the evidence, the offender picked up a metal pole about 1.5 metres long and about 30 millimetres in diameter. There is no evidence to establish whether it was of solid metal or tubular. The offender had this pole in his hand by the time he reached a large steel fire hydrant cabinet that was located between blocks 2 and 3, towards the Swanson Street end of the lawn that separated the buildings. Ms Hammond arrived near to the fire hydrant cabinet shortly after the offender. 11. The offender repeatedly struck the side of the hydrant cabinet with the metal pole, making a very loud noise, and at the same time called out repeatedly to the deceased in his unit "Come down, you black cunt" or "Come down, you black dog" or similar words. The deceased came down the stairs from his unit to the ground floor level of the entryway. I am satisfied that he was carrying a wooden broom handle or similar, about 1.3 metres long. I am not satisfied that he ever used the broom handle against the offender, or that he gestured or threatened to do so. 12. As the deceased came down the stairs, the offender walked quickly across the lawn, met the deceased in the entryway and pulled him by his clothing outside. I am satisfied beyond reasonable doubt that the deceased did not offer any blow against the offender, and did no more than attempt to push the offender away from himself and try to disengage. By the time the offender and the deceased emerged from the entryway, the offender had dropped the metal pole nearby. He then threw the deceased heavily on to the concrete path immediately outside the entryway. 13. The offender straddled the deceased as he lay on his back on the concrete, and punched him hard to the face several times. He then seized some part of the deceased's upper body or clothing, raised his head about 20 centimetres above the ground and smashed it down on the concrete. This was repeated about three times. The offender then stood up, retrieved the metal pole and struck at least one very heavy blow with it to the deceased's head. I cannot be satisfied beyond reasonable doubt that more than one blow of the pole actually connected. The deceased did not move after he first landed on his back on the concrete path. He may well have been unconscious from that time. The whole physical conflict lasted about 30 seconds. 14. The blows to the deceased's head and/or the impacts of his head being smashed to the ground caused fractures to the base of his skull. The deceased sustained subarachnoid haemorrhage on both sides of the brain and cerebral contusions and oedema on the left side. Numerous of his facial bones were fractured. Severe injuries to his chest were caused, either by the offender sitting or kneeling on him or punching his head or by other blows to this region that were not individually identified by witnesses. 15. Some of the deceased's ribs were broken and one lung was punctured, causing air to escape in his chest cavity. The results of the blunt force to the deceased's head were fatal. The deceased had been significantly affected by alcohol at the time of the assault. His blood alcohol reading at autopsy was 0.139 grams of alcohol per 100 millimetres of blood. 16. After delivering the blow to the deceased's head with the metal pole, the offender left the scene and returned to his unit. Ms Hammond had stood nearby throughout the assault and she left and returned to the unit slightly ahead of the offender. I am satisfied beyond reasonable doubt that she was never close enough to the physical conflict to have received any injury in the course of it and that, contrary to assertions that both she and the offender have made, the deceased did not strike at either of them at any time with the broom handle that he carried down from his apartment. The broom handle was dropped by the deceased in the entryway and it was never taken outside the building. 17. This summation of the course of the offender's attack on the deceased is based upon acceptance of parts of the evidence of the eyewitnesses. They did not all have the same vantage point or opportunity to observe, and they were not all equally impressive in recounting their observations. I have reconciled differences in their recollections, taking into account which of them I found most plausible and reliable with respect to the various elements of the attack. 18. This was a brutal, merciless assault by a younger man upon an older victim, who, at the time, was the less able to defend himself by reason of inebriation. The offender's own self-induced intoxication fuelled in him an irrational rage. 19. By past conduct, the deceased had made himself a pest in this public housing complex. He had disturbed the harmony of the neighbourhood, and at times had caused others, including the offender and Ms Hammond, to feel insulted and to apprehend that an assault might be committed. But nothing in the deceased's irritating behaviour could explain or mitigate the offender's actions on 13 September 2020. I do not regard the fact that the deceased came down from his unit with a broom handle, in response to the offender's angry summons to him, as any show of aggression that could mitigate what followed. 20. The whole episode of ferocious violence was perpetrated in the presence of several close neighbours of the deceased, who were shaken and horrified by the murder being carried out so brutally on their doorstep. The offender continued his sustained attack, oblivious to the presence of neighbours and passers-by, several of whom were young women. The fatal blows were delivered in such quick succession that none of those whose attention was attracted could have reached the offender or restrained him in time to save Mr Campbell. 21. Despite the savagery of his actions, I am not able to infer beyond reasonable doubt that the offender had an intention to kill. Rather, I find that he intended to inflict grievous bodily harm. I attribute the number and the fatal force of his blows to his lack of judgment, in his state of intense and unreasoned rage, about how far he should go. 22. The blow that most strongly suggests an intention to kill was the final one with the pole. Straight after that the offender said, "You will never ever talk to my woman like that again. I will fuckin' murder you." He then walked off. I find this pronouncement ambiguous as to whether what he had done to that point had been with intent to cause death. It is equally consistent with being a threat of death in the future, if the deceased should again insult Ms Hammond. The evidence included affirmative indications of the lesser intent, given in answers in the police interview. In three answers given to police he said: I feel scared to walk in that neighbourhood with him there. Not any more. I've no mercy, no pity for that. No way. I find this also equivocal as to his intent. He gave these answers to questions 281-282: Q. Has anyone, when all this was going on - was there anyone that attempted to intervene? A. Oh, my missus was, like, "Get off him, get off him." But I was at the point of saying, "You know what? Fuck this, you know. Like, after what he's done to me and you I'll make sure he learns a lesson." Like, I didn't mean to hurt him that bad. Q. What do you mean by "bad?" You want to make sure he learns a lesson? A. Like, cause he's always scaring children. He always sexually harasses my partner. He belted her with a pole, and me. Why wouldn't you think I want this guy to learn a lesson? 1. My conclusion about the level of the offender's intent is consistent with the jury's verdict. The case was left with them on the basis that they might convict if they found either an intent to kill or to cause grievous bodily harm. In the way the issues were argued at trial, I do not infer that the jury must have assessed that the offender intended to cause death. The evidence does not exclude the reasonable possibility that the offender's intent was to cause very serious harm and I find that it fell short of intent to kill. 2. It is primarily because the evidence does not establish an intent to kill that I propose to fix the non-parole period at less than the standard of 20 years. I take into account nevertheless that the grievous bodily harm that was in fact caused was to the deceased's face and head. The intentional infliction of serious head injuries carries with it a higher risk of causing death, as would have been self-evident to the offender. The intentional causing of grievous bodily harm in this case was of a very serious kind. 3. I recognise the absence of any planning or premeditation for the attack. I have no doubt that the offender's acute self-induced intoxication was the primary cause of his spontaneous and disproportionate reaction to the cumulative effect of the previous occasions of friction with the deceased, and to the exchange of words that took place as the offender and Ms Hammond walked back from their shopping trip. Self-induced intoxication is not mitigating but it displaces pre-meditation 4. I have considered the subjective factors that affect the offender's position. He did not give evidence at the trial, but the recording of his police interview was tendered. He also did not give evidence in the sentence proceedings. 5. In the trial the Crown led expert evidence from Dr Martin, and the accused called Dr Seidler, a forensic psychologist. Their evidence was directed to the offence of abnormality of mind under s 23A of the Crimes Act 1900, in force at the time of the offence. On sentence, the two experts' reports have been tendered. 6. The experts' evidence includes hearsay of the offender's personal and family background, provided to them by way of history. I accept that information as accurate. For the most part the experts did not suggest that this part of the offender's history was dubious, and they expressed the view that it was borne out by school counsellors' reports and medical records in which there are descriptions of disturbed behaviour of the offender from about age 6. 7. The offender was born in Australia to a mother and father of Italian and Greek descent respectively. The parental relationship was volatile and the father assaulted both the mother and the offender himself. The offender's parents separated when he was four. He had only intermittent contact with his father during childhood and thereafter. As a single parent, the offender's mother worked and studied to support the two of them. While the offender was growing up, his maternal uncle assumed the role of disciplinarian. He administered severe and excessive corporal punishment. 8. At the age of six a school counsellor prepared a report on behaviour of the offender which Dr Martin described as worrying and consistent with "a very adverse and difficult family background." At the age of 8 it was reported that he displayed cruelty to animals, dishonesty, aggression towards his mother and destructiveness. Dr Martin said that this presentation was unusual, and consistent with being a response by a child of that age to experience of violence. 9. Also at around this age the offender was diagnosed with Attention Deficit Hyperactive Disorder, ADHD. He was experiencing symptoms of anxiety and exhibiting defiant behaviour. Dr Martin summed up these observations as indicating "a highly troubled child, who acts out and breaks the rules significantly." The ADHD, coupled with below average intelligence, as professionally assessed, explains the effect as poor academic achievement. He did not complete year 10. 10. Between the ages of 10 and 12 years the offender's school reports documented difficulties that he had in controlling his behaviour and in socialising with peers. He acted provocatively and could not manage frustration. Dr Martin found all of these recorded aspects of the offender's behaviour, to the age of 12, to be evidence of severe emotional disturbance. 11. At the age of 14 a paediatrician reported that the offender exhibited conduct disorder, losing his temper easily, lashing out very aggressively. Dr Martin said that those tendencies may be linked to Antisocial Personality Disorder involving impulsivity, disregard for the rights of others and lack of remorse. 12. The offender's mother formed a relationship with another partner when the offender was about 14. As a result of his difficulties in adjusting to this change, the offender left home at that time. During his mid to late teens the offender therefore had no stable accommodation or family structure and he commenced using alcohol and illicit drugs. He formed associations with antisocial and criminal individuals, and was exposed to violence in that period. 13. Dr Martin considers that the offender's recorded psychological difficulties, originating in childhood, are consistent with his uptake of illicit drugs and with his pattern of heavy substance abuse and addiction from his mid teens, continuing to the date of the offence. I accept the opinion of Dr Martin that in 2020 the offender suffered from complex post traumatic stress disorder. Dr Martin said that this condition is: Essentially synonymous with borderline personality disorder and is a way of saying that a person has very significant emotional problems which are directly related to developmental trauma. There is clearly evidence of disordered behaviour, personality traits which would be consistent with a personality disorder. 1. It is inherent in this diagnosis that the concurrent symptoms of complex PTSD and a borderline personality disorder had been longstanding, since the offender's teenage years. Dr Martin also concluded that some obsessive and compulsive ways of behaving that the offender has described are "part of an underlying anxiety condition, which I would say is lifelong - well, goes back to his childhood." 2. Dr Martin endorses the diagnosis of ADHD that other practitioners have made since the offender's childhood. I accept that that condition is ongoing. It is relevant to the offender's failure to acquire any vocational skills or to hold employment and it is no doubt another element in the frustration and turbulence of his life, contributing to his descent into drug addiction and total dysregulation. The ADHD is also relevant to how the offender will endure custody. It has no direct bearing upon the commission of the crime. 3. Dr Seidler made similar diagnoses but also accepted the offender's self report of psychotic symptoms, particularly auditory and visual hallucinations. Dr Martin did not accept that such symptoms had been experienced, except to the extent that the offender is likely to have suffered at times from drug induced psychosis during periods of acute intoxication. His hospitalisation at Concorde in 2011 for some months was, according to the offender's history given to Dr Seidler, due to drug induced psychosis. Dr Martin did not consider that the offender had been to any extent psychotic at the time of the murder, and I am not persuaded on the balance of probabilities that he was. I infer that the jury likewise were not satisfied that he was affected by psychosis at the relevant time, having regard to their rejection of the defence under s 23A of the Crimes Act. 4. Both Dr Martin and Dr Seidler observed in the offender a tendency to exaggerate and misrepresent the symptoms he experienced at the time of the murder and at relevant times before and after. I am not persuaded to accept Dr Seidler's view that the offender presently has, or ever has had, psychotic symptoms that would support a diagnosis of schizophrenia. 5. The offender's pervading and longstanding psychiatric disorders, being complex PTSD and/or borderline personality disorder, together with ADHD, have contributed to his failure to sustain gainful employment. Since leaving school he has attempted some vocational training but has never completed any of it. He has had very little work because behavioural problems and instability have made him unreliable, leading to termination of a number of jobs. 6. The offender has been in receipt of a disability support pension since approximately the age of 20. Regrettably, instead of addressing his poor mental health by conforming to medical advice and using prescription medications as directed, for over a decade the offender has usually been unmedicated and instead has been intoxicated by the many substances that he has heavily abused. 7. The offender's psychiatric history mitigates his culpability to the extent that it explains the long history of drug abuse that has exacerbated his mental disorders and that by September 2020 had rendered him dysfunctional and volatile. He has worsened his psychiatric propensity for outbursts by misusing drugs instead of trying to contain his mental disorders with treatment. The offender's culpability in the murder is reduced only marginally by consideration of his mental illness because of the overlay of abuse of drugs. General deterrence remains an important consideration for his sentence. 8. The offender committed a series of minor street offences in Western Australia in 2010 and 2011. His most serious prior to conviction in New South Wales was for robbery when armed with an offensive weapon, committed in November 2014. The facts of that offence reveal that even it was not a particularly grave matter. The offender was dealt with constructively in the District Court for that offence, with a suspended sentence and a bond requiring him to attend a psychologist and cooperate in psychological treatment for depression, anxiety and stress. His Honour Judge Whitford SC recommended to Community Corrections that his case management should continue to focus on mental health issues, and drug and alcohol intervention. 9. The offender did not reform his behaviour under this regime. His record of attendance on Community Corrections and his response to supervision were poor. He did not comply with the condition requiring attendance on a psychologist. The offender was called up on 13 April 2018 and given a further chance under an extension of the bond. Again he breached the conditions. The call-ups for breach of the bond resulted ultimately in a sentence of full-time custody for the 2014 robbery, with a non-parole period of five months. Prior to serving that term the offender was convicted of damaging property by fire, possession of a prohibited weapon, possession of prohibited drugs and larceny. 10. On 16 August 2020 the offender was charged with damaging property. He attended at the residence of his father and grandmother in Drummoyne and threw a brick paver at his father's luxury motor vehicle, causing $5,500 worth of damage. This followed arguments with his father concerning the offender persistently seeking money from his grandmother. The offender was subject to a community corrections order for this offence when the murder was committed but I do not consider that that should be factored in to any increase in his sentence, given the vastly different degrees of gravity of the two crimes and his otherwise relatively minor prior record. 11. The record is sufficient to disentitle the offender from leniency. It also diminishes the Court's confidence in his prospects of rehabilitation. Rehabilitation would require that the offender should recognise his own need for psychiatric help and the importance of abstaining from drugs and alcohol. The offender's term of imprisonment must necessarily be of such a length that his prospects of rehabilitation fall to be considered at a distant date and, accordingly, should not be written off prospectively. Rehabilitation by the date of the offender's release is possible. He was a danger to the community, in the drug addled state to which he had reduced himself by September 2020. However, I do not assume that he will return to that state upon his release to parole at the end of the period I propose to specify. 12. In a letter to the court, the offender's father states that the two of them have spoken by telephone at least weekly during the offender's remand. The father says that in these calls the offender has "expressed how remorseful he has been over the incident at Erskineville." I attach little weight to that statement, taken in isolation, having until today seen no direct expression of remorse from the offender. Taking into account the other evidence of a nearly lifelong absence of contact between father and son, and the evidence of conflict between them in June 2020 that resulted in the smashing of the father's car, I am bound to treat the offender's communications through his father with considerable reserve. 13. There has also been tendered a letter of support from the mother of a former girlfriend of the offender. This referee's experience of him during an acquaintance of nine years attests to positive qualities that are not otherwise revealed by the evidence before the Court, and I take her support for him into account. The offender has expressed remorse to the referee, which she accepts as genuine based upon her perception of him as "a very compassionate and caring person." I have no doubt as to the sincerity of the referee, but evidence of the offender's misrepresentation of his symptoms to Drs Martin and Seidler has shown him to be manipulative and leaves the Court in doubt as to the genuineness of these prior indirect intimations of remorse. 14. The Court must balance what he has said to the referee against his conduct in the police interview, commencing six-and-a-half hours after the murder, where he was assertive and to a degree boastful and self-justifying about the vicious assault he had carried out, and self-righteous in making untruthful claims that he acted in self-defence. Twenty months later, with ample time to detoxify and to receive psychiatric attention from Justice Health, the offender's offer of a plea to manslaughter before the jury was still inherently a disavowal of his true level of wrongdoing. The offender has today provided a letter to the Court, at last expressing directly his remorse. Belated as this is, I should accept it as sincere and take it into account in acknowledging that it signals some positive prospects for rehabilitation. 15. In some respects the offender's time in custody will be made more difficult for him by his psychiatric disorders. They are such that he may find himself in conflict with prison officers and/or with fellow inmates due to his lack of emotional control. I will make some allowance for this in the sentence imposed. This factor is tempered by the consideration that in prison the offender will not have access to the large quantity and variety of intoxicants that he has been accustomed to using. The cessation of drug intake that exacerbates his medical state is likely to be positive for him. As Dr Seidler has put it: The stability, predictability and containment of the prison environment may have some positive impacts on Mr Maletsas' mental health, but he will also likely struggle more than the average inmate due to his ongoing symptomatology. 1. In fixing the duration of his sentence, I take into account that during the period of the offender's remand prison conditions have been more restrictive than usual, particularly with respect to contact with family members and other visitors. 2. I find nothing in the circumstances to warrant varying the usual proportion between non-parole period and head sentence. In particular, the balance of term during which the offender will be subject to supervision in the community, if released to parole, will be of such length that it should be quite sufficient to facilitate re-integration of him into the community, with the assistance of Community Corrections and his own cooperation. 3. I will now make orders for the sentence that is to be imposed to give effect to all of the matters to which I have referred. Would you stand, please, Mr Maletsas 4. Understand that the Crimes (High Risk Offenders) Act 2006 (NSW) is applicable to the result of your conviction for this murder. Your counsel will no doubt explain the significance of that, which will take effect the completion of your sentence. 5. For the murder of Marks Campbell on 13 September 2020 at Erskineville you are sentenced to imprisonment for a term of 19 years, comprising a non-parole period of 14 years and 3 months, commencing on 14 September 2020 and expiring on 13 December 2034; and a balance of term of 4 years and 9 months, expiring on 13 September 2039. The first date on which you will be eligible to be released to parole is 13 December 2034.