New South Wales Supreme Court CITATION : Regina v Georgiou & Harrison [2000] NSWSC 287 FILE NUMBER(S) : SC 70069/98; 70038/98 HEARING DATE(S) : 22/08/99-02/99 JUDGMENT DATE : 10 March 2000 Regina PARTIES : Constantine Georgiou Bruce Malcolm Harrison JUDGMENT OF : Dowd J at 1 Mr Bill Dawe S.C.: Crown COUNSEL : Mr Gabriel Wendler: Georgiou Mr Robert Somosi: Harrison S.E. O'Connor SOLICITORS : Xenos Jordan Solicitors Michael Croke & Co CATCHWORDS : sentence - murder - attempted murder - totality Crimes Act 1900 LEGISLATION CITED : Sentencing Act 1989 Victims Rights Act 1996 Regina v Previtera (1997) 94 A Crim R 67 Regina v Issacs (1997) 90 A Crim R 587 Regina v Veen [No.2] 164 CLR 465 Ibbs v The Queen (1987) 163 CLR 447 Regina v Twala (unreported, NSWCCA, 4 November 1994) Regina v Garforth (unreported, NSW CCA 23 May 1994) CASES CITED : Regina v Leonard (unreported, NSW CCA 7 December 1998) Regina v Fernando (unreported, NSW SC 21 August 1997) Regina v Kalajzich 94 A Crim R 41 Regina v Petroff (unreported, NSW CCA 12 November 1991) Mill v The Queen (1988) 166 CLR 372 Regina v Postiglione (1997) 71 ALJR 475 R v Pearce (1998) 156 ALR 684 DECISION : Each convicted of three counts of murder and one count of attempted murder; Sentenced concurrently on each count of murder and attempted murder IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION FRIDAY 10 MARCH 2000 DOWD J REGINA -v- Constantine Georgiou & Bruce Malcolm Harrison SENTENCE 1 DOWD J: The prisoners, Constantine Georgiou and Bruce Malcolm Harrison, were indicted that on 9 November 1997, at Chippendale, they did murder Rick De Stoop. They were also indicted that on 9 November 1997, at Chippendale, they did murder Sasha Milenkovic and on 9 November 1997, at Chippendale, they did murder Michael Kulakowski. Both prisoners were further indicted that on 9 November 1997, at Chippendale, they did attempt to murder Robin Aprim David. To each of those charges the prisoners pleaded not guilty. 2 The trial commenced before me on 2 June 1999 and continued for some 11 weeks. On 22 August 1999 the jury returned a verdict of guilty of murder as against each of the prisoners on all four counts; that is, guilty of the murder of Rick De Stoop, guilty of the murder of Sasha Milenkovic, guilty of the murder of Michael Kulakowski and guilty of the attempted murder of Robin Aprim David. 3 The facts were that, on the morning of Sunday 9 November 1997, at about 11.30 am the three deceased persons, Rick De Stoop, Sasha Milenkovic and Michael Kulakowski, together with Robin David, attended the Black Market Café accompanied by the deceased Kulakowski's girlfriend, Angela Konz, and some other friends. 4 The Black Market Café, which is situated in Regent Street Chippendale, is a nightclub with loud dance music being played most of the day and night. The café has a ground floor and first floor open to the public. There is a cellar and storage room in the basement which is only accessible with a key and is usually kept locked. The cellar is not open to members of the general public, only a number of employees of the café have a key which opens the basement door. 5 The three now deceased and David were members of the Bandido Outlaw Motor Cycle Club, Kulakowski was the National President of the Bandidos Club and Milenkovic held that Club's position of Sergeant at Arms. 6 When the three deceased, David and their friends arrived at the café they were met at the door by a Justin Culshaw, who was a member of the Rebels Outlaw Motorcycle Club. Culshaw was employed as one of several doormen at the café by a company known as Garrison Security. However he was not on duty on that day. Angela Konz, to whom I have referred, had a previous association with Culshaw and had previously met the prisoner, Harrison. 7 The group entered the café and went to the bar and ordered drinks. After some time, Milenkovic walked away from the group returning after a short time and asked Kulakowski to come to a meeting with him. Kulakowski told his girlfriend, Konz, that he would be five minutes and the three deceased then walked off towards the basement door of the café. 8 At about 12.45 pm. the same day the prisoners attended the café, having travelled to the café in Constantine Georgiou's Porsche. The prisoner Harrison had already been at the café from early in the morning until about 10 o'clock that day. 9 The prisoner Georgiou was a current member of the Rebels Outlaw Motorcycle Club. The prisoner Harrison was an associate of Georgiou's and a former member of the Rebels Club. 10 About five minutes after the three deceased left their group of friends, two - and by some, more - gunshots were heard coming from the basement. Shortly after that a fight developed near the entry to the cellar door near the cigarette machine, in a type of cloakroom. 11 Three or four minutes after the fight broke out the prisoner Georgiou ran from the basement followed by the prisoner Harrison who was holding a gun in both hands extended in front of him, moving it from side to side and then out of the café. Konz's evidence was that both the prisoners were dressed in long black jackets and the prisoner Georgiou had a black woollen hat on. 12 A witness who was on the top of a garage opposite the café saw two men dressed in dark clothing running down the street beside the café, one of them carrying a pistol. The prisoners drove off in Georgiou's Porsche. 13 Attempts were made by the employees of the café and patrons to open the basement door, but a key was required which was obtained and the door was opened. The bodies of the three deceased were discovered lying on the basement floor, Kulakowski still being alive. 14 Robin David, who was the victim of the attempted murder, told the Court that he came to the café with the three deceased in the early hours of the morning on 9 November 1997 and stayed upstairs on the ground level while the three deceased went into the cellar. David said that he could not remember anyone in particular talking to the three deceased before they went down to the cellar. He said about five or 10 minutes later he heard gunshots. 15 David said that he ran to the cellar door which was ajar and looked through the door. He said he might have gone in a step or two, but he did not go down into the basement area. He then said he felt pain in his neck and realised he had been shot. 16 In cross-examination, Robin David denied ever seeing the two pistols that were recovered, and denied taking a pistol to the café that day. He denied going down into the cellar and firing a .25 calibre pistol and denied giving the person who went with him to the hospital a pistol. He further denied that he stood near the cellar doorway and shot the prisoner, Harrison. 17 A witness saw two men at about 1.10pm running across the road from the café and into a taxi, one of them being Robin David who appeared to be bleeding from wounds to his neck and hands. The two men went to Royal Prince Alfred Hospital where David was admitted for treatment for gun shot wounds in the back of his neck and left hand. 18 I reject Robin David's version of events. He was clearly in the cellar, was at the foot of the stairs when the bullet, which passed through the back of his neck, was fired and after passing through his neck hit the wall. The blood spatter showed he ran up the stairs and out of the cellar. It is likely he was the person who fired the .25 calibre pistol. 19 At about 12.45 police who were patrolling the area, noticed that there was a large number of people outside the café as well as the service station across the road. Being suspicious, the police drove down Queen Street along Meagher Street to find the prisoners running west along Meagher Street from the direction of the café. The prisoner Harrison had his right hand down the front of his trousers inside a long black overcoat he was wearing, as though attempting to conceal something. The prisoners ran to Georgiou's silver Porsche, entered in the car and drove away. 20 The police who had witnessed the prisoners' actions followed the vehicle along Cleveland Street for a short distance before the vehicle accelerated rapidly through a red light at the intersection of Cleveland and Chalmers Streets, Redfern. A high speed pursuit through the narrow streets of that area then ensued. 21 As the Porsche travelled along Cleveland Street another police officer, who had been getting something to eat and was walking in the street, heard and saw the Porsche speeding along the street. The police officer was able to position himself so as to be able to see the driver of the Porsche. The police officer then heard something on his police radio and contacted the police radio himself to give a description of the driver which was consistent with the way the prisoner Georgiou looked on that day. 22 While the Porsche was being followed by the police, a metal object was thrown from the passenger window of the Porsche which landed on the road. A silver coloured pistol, which was later identified as a 9 mm calibre Parabellum Smith & Wesson self-loading pistol was located in the gutter and handed to the police. That pistol was identified as having been given to the prisoner Georgiou. A 9 mm calibre Parabellum Beretta self-loading pistol was also later found on the route of the Porsche which the police pursued. That pistol was traced as previously being owned by a security manager from whom it was stolen in 1994. 23 After the police had followed the Porsche for some distance, they briefly lost sight of it and then saw the prisoner Harrison walking west out of Hutchinson Lane, Surry Hills, not far from where the Porsche was later found to be abandoned. Harrison was apprehended but broke free and commenced to move quickly down Hutchinson Street. After a chase and the intervention of a civilian, the police apprehended Harrison. 24 Harrison was bleeding slightly from a wound to his left wrist. When asked how he received this injury he stated, "I don't know. Maybe when I fell over with the police." He was later taken to Sydney Hospital where he was treated for a gunshot wound to the left wrist. 25 The Porsche was located unattended in Hutchinson Lane. On the front seat of the Porsche police located a pair of black cotton gloves. A later analysis found blood in the gloves which could not be excluded as having originated from Harrison. 26 In their investigation police and ambulance offers attended the café at about 1.17pm. The deceased, De Stoop and Milenkovic, were pronounced dead. The deceased Kulakowski, who had been critically injured, was treated by ambulance officers and rushed to hospital. He died on 10 November 1997. 27 On that day the prisoner, Harrison, participated in an electronically recorded interview with police in which he denied any involvement in the shootings. 28 On 17 November 1997, police executed a search warrant on premises occupied by the prisoner Georgiou at North Bondi. A number of photographs depicting Georgiou and others holding pistols identical to the Smith & Wesson Beretta pistols were located at those premises. 29 On 3 February 1998 officials with the Australian Customs and Immigration Department conducted a random check on the vessel Arafura at Botany Bay which was on route to Korea via Japan. The prisoner, Georgiou, was found on the ship carrying an altered stolen passport and a New South Wales driver's licence in the name of Johnifern Marian Ross and $10,963 odd in cash. The prisoner, who continued to assert his correct name was Ross, was detained and, after the police had been contacted to find out his true identity, he was arrested. 30 I now deal with the evidence particularly relating to Georgiou and his version of events. The prisoner Georgiou gave alibi evidence on the night of 8 November 1997 he and his de facto wife, Wendy Duncan, had gone to the prisoner Harrison's house where they spent about seven hours with Harrison's girlfriend Lena and another friend and that they all went with Harrison to the café in his, Georgiou's, Porsche. 31 At the café the prisoner Georgiou said he had met up with another couple he knew and they all decided to leave and get something to eat. Georgiou, Duncan and their friends left the café, leaving the prisoner Harrison there. 32 Georgiou said because he had been drinking he left his Porsche at the café and went in his friend's car. Georgiou said he left his keys with Justin Culshaw, his friend who was at the door, which is what he would normally do if he were drinking, and that normally Justin would drive the car home for Georgiou or look after it until Georgiou picked it up on a later occasion. The prisoner admitted to the Court that in November 1997 he leased and had possession of a silver Porsche registered ADP 498 which was the car used in the chase earlier referred to. 33 Georgiou said the four of them went back to his house in North Bondi at around 9.30, 10 am; that the girls went to the kitchen to make some breakfast and he and his friend watched music videos and talked about cars. He said at about 12.30 to 1 the couple left and he had a shower, went to bed and slept until 5pm when his alarm went off. 34 The prisoner Georgiou said that when he woke up he checked the messages on his mobile telephone and, after realising there were four urgent messages, tried to return one of the calls but could not get through. He said he then commenced watching television and, whilst watching the news, saw his car being towed away. He said he rang Justin Culshaw to find out what had been going on. He said Culshaw told him there had been a shooting, that the prisoner Harrison had been arrested and somebody had taken the prisoner Georgiou's car. He said Culshaw also told him that a Bandido and the prisoner Harrison had been shot. The prisoner Georgiou said that he panicked when he heard that Harrison had been shot. 35 After speaking to Mr Culshaw the prisoner Georgiou said he then made a few phone calls to people at the café. He was told to stay low for a while until those people found out what was going on. They told him to get out of his house so he told Duncan to go away and stay with her sister and he would contact her later. The prisoner Georgiou then left for the North Sydney area and went into hiding. 36 In relation to the prisoner being arrested in February 1998 attempting to board a ship, the prisoner Georgiou made the following admissions to the Court: 1. That on 3 February 1998 he boarded the freighter Arafura which was docked at Port Botany. 2. At the time he boarded the freighter he had in his possession a British EEC passport in the name of Johnifern Marian Ross bearing his photograph; a ticket for passage on the Arafura to Yokohama, Japan issued in the name of Johnifern Marian Ross; two identical drivers' licences issued in the name of Johnifern Marian Ross and bearing his photograph; the sum of $10,963.15 cash in Australian currency. 37 It was then admitted that the passport had been issued to Jennifer Marian Ross, a British national, and had been reported lost in Australia on 26 October 1997. He had further admitted that he was removed from the Arafura by immigration officials on 3 February 1998 and was later taken to Kogarah Police Station, and further admitted that enquiries made by police revealed the prisoner's identity. 38 The prisoner said that after the night of 9 November 1997 he did not make any more calls from his mobile telephone. He said that he turned the phone off and about two weeks later he acquired a new Sim card and a new number. He said that he made no effort to contact the prisoner Harrison. 39 In cross-examination and in evidence-in-chief, the prisoner denied that he had driven to the prisoner Harrison's house about midday on 9 November 1997, or saying that he wanted to go back to the café to see a girl. Georgiou denied that he went back to the café at about 12.20pm or that he parked his car in Meagher Street. 40 Georgiou denied being in the basement of the café and denied shooting the three deceased and Robin David. He said that he knew of Michael Kulakowski but did not know him and that he knew Sasha Milenkovic but not Rick De Stoop personally. 41 At the café he said he did not have a conversation with the people at the door, or see the prisoner Harrison on the footpath with an injured wrist. Georgiou denied suggesting to Harrison that he would take him to the hospital and denied being chased by the police. Georgiou denied abandoning Harrison and his car in Surry Hills, or that he threw any pistols from the car. 42 The prisoner Georgiou said he did not see or speak to Justin Culshaw after the incident, except on that one occasion when he rang him to find out what had happened and that during that period he was only speaking to one member of the Rebels, but refused to identify that person. He said that that member had organised his false passport. 43 The prisoner Georgiou said he did not go to the police because did he not trust them. Georgiou denied that taking flight on the ship was the result of a consciousness of guilt. 44 On a weekend some few weeks prior to the shooting the prisoner Georgiou and his defacto travelled to a property at Queanbeyan with another couple. The property was owned by the parents of his friend, Frank Fischetti. During that weekend both of the subject pistols were fired on a makeshift target on the property. The bullets, later recovered by police investigations, were proved to have come from the murder weapons. The prisoner Georgiou had obtained one of the murder weapons from his cousin, Michael Cazilieris, although the prisoner said he had borrowed the two murder weapons from Cazilieris only for the sake of the shooting weekend and at that time only. 45 In support of the alibi defence of the prisoner Georgiou, Duncan give evidence by way of alibi. Her evidence was that she had gone to the premises of the prisoner Harrison in November 1997, at around 10pm one Saturday night and that Harrison, Georgiou, Harrison's friend Lena and she went to the Black Market Café; that she and Georgiou went in one car and Harrison and Lena went in a separate car and she had spoken to someone named Angela at the door. 46 After spending some time at the cafe, Duncan said the four left and went back to their residence at North Bondi where they had breakfast with the other couple that had joined them from the café which they had left about 12.30pm. At about that time Duncan said the prisoner, Georgiou, then walked to the local shops to get milk and bread and that he rang her from the shops to ask her if there was anything else that she needed. That phone call was, of course, recorded. 47 There was a considerable amount of evidence during the hearing from various telephone experts as to locating the source of a mobile telephone call. It was patently obvious from the evidence that, contrary to what was asserted by Duncan, the prisoner Georgiou was in the vicinity of the street in Darlinghurst where the Porsche had been abandoned and that he was not making the call from Bondi as he and Duncan alleged. Duncan's contention that she was hiding at her sister's place and two other friends, and she had not contacted Georgiou was patently untrue. Duncan denied the prisoner Harrison's version of the story that they had been at his residence from about midday Saturday. 48 I find that the flight by Georgiou and the attempted departure was evidence going to the guilt which has been established against him. I reject the evidence of Georgiou and his witnesses as to alibi. I find on the whole of the evidence the prisoner Georgiou was present in the Black Market Café cellar and that he drove with Harrison from the scene of the killing after the killings. 49 The prisoner Harrison's case and his evidence was that he went in the early morning of the day of the shooting with his girlfriend Lena and another friend to the café and met the prisoner Georgiou with Duncan who arrived in the Porsche. Harrison's case was that he had been drinking heavily and had been taking speed and cocaine. He said that they all went home to Bondi Beach and that at about midday on that day Georgiou arrived and asked Harrison to come back to the café because Georgiou wanted to meet a female there. Harrison said that as he went near to the coat rack close to the entrance, he heard two bangs and felt as though he had been hit on the arm and that he left in a hurry, during which time a pinhead size spot of blood of the deceased De Stoop landed on his left boot, which he asserted was apparently splashed from someone emerging with De Stoop's blood from the basement. 50 Harrison denied being in the cellar. His evidence was that he met Georgiou outside the café after he left and that Georgiou left to take him to the hospital and, because of the pain in his arm and his high level of intoxication, he did not remember the car trip, and that he found the car had been stopped and Georgiou had left him. He was then apprehended and that his attempted escape from that apprehension was because he was scared and confused. 51 Harrison's evidence was that he was in the coat room area a metre or so from the cellar door and that he had not seen the police car in Meagher Street when he ran out of the café. Harrison denied that he threw the pistols from the Porsche as he and Georgiou were being pursued. 52 Ballistics evidence, crime scene evidence as well as photogrammetry evidence and photographs, together with the view of the scene of the killings in the cellar, were in evidence in the proceedings. The cellar and the adjoining alcove and the two other rooms at the back were an extremely confined space. 53 A total of seven 9 mm shots were fired in the basement of the Black Market Café on 9 November 1997 and one .25 calibre shot was fired. Of the seven shots fired from the 9 mm pistols, three were from the Beretta pistol and four were fired from the Smith & Wesson pistol. Six of the shots can be accounted for in the wounds of the three deceased. The seventh shot was fired but struck a wall near the stair area which leads from the cellar to the ground floor of the café, after passing through Robin David's neck. 54 An examination of the pistols revealed that the prisoner Harrison's DNA matched that found on a .25 calibre pellet that was in the basement of the café where the deceased were located. The DNA of the deceased De Stoop was found on Harrison's boot, as I have said. There was blood pooled on the floor of the basement where the three bodies of the two deceased and the seriously injured Kulakowski were found. 55 Harrison's case was that the bullet which had injured him had been kicked or trampled or carried inadvertently down into the basement by those carrying out the investigation or some other person, or those who went down there - a large number of people having entered the cellar door before police secured it. 56 The deceased De Stoop died from a fatal gunshot wound to his forehead. There was internal sooting to suggest that the muzzle of the weapon used to shoot De Stoop was held in contact with his skin at the time of discharge, similar to an execution-style murder. There was also a second gunshot wound to the upper region of the deceased's neck below the right ear. The deceased Milenkovic died from a fatal gunshot to the left side of his head above his ear. There was no evidence of any sooting. 57 The deceased Kulakowski died as a result of a fatal gunshot wound to his head. There was some sooting to the left and right margins where the bullet went in, suggesting the muzzle of the weapon had been held in close proximity or in partial contact with the skin at the time of discharge. The deceased also suffered a second gunshot wound to his right wrist. 58 It is clear there were six people in the cellar of the café; three deceased, the two prisoners and Robin David. It is a matter of speculation, and I am unable to find one way or the other, as to whether there was present any other person on the evidence before me. There may well have been other persons involved in the events leading up to the shooting, but that is a matter not necessary here to resolve. 59 I reject the version given by the prisoner Harrison as to his not being in the cellar and the way in which the speck of blood arrived on his boot and how he received the bullet wound. There is no question and I find beyond a reasonable doubt that each of the three deceased was shot and killed by bullets fired by one or other of the prisoners who were both present in the cellar. Those shootings were at close range and the shootings were done with the intention to kill all three of them. 60 The attempted murder of Robin David was a very serious attempt. I find the attempt was carried out beyond a reasonable doubt with intent to kill Robin David and was perhaps within millimetres, and certainly centimetres, of being successful and the gun which fired the bullet which hit Robin David then hit the wall can only have been fired with intention to kill. 61 On an examination of the whole of the evidence, some of which I have summarised above, I find beyond reasonable doubt there was a joint criminal enterprise between the two prisoners, whichever of the two prisoners were physically responsible for each of the shootings causing the three deaths and the serious injury inflicted to Robin David in the attempted murder. The evidence before the Court causes me to find that there was in contemplation in the joint criminal enterprise of the two prisoners that the shooting of the three deceased and the attempted murder at their hands might occur. 62 Those killed and the prisoners were associated with or members of competing motorcycle groups. Evidence in the proceedings leads the Court to conclude that the meeting related to the control of the "door" at the café and the lucrative earnings that flowed from the running of those types of premises and the provision of security to them. 63 The selection of a venue where an extreme noise level was likely to mask the noise of the shooting, and obviously its venue did mask some of the noise of most of the shots fired, and the meeting occurring in circumstances where loaded heavy calibre pistols were placed at or near the heads of those invited to go into the cellar raises the strong possibility that there was contemplated an execution-style killing. On the evidence before the Court, however, it is not possible to reach that conclusion to the necessary criminal standard. 64 It is clear, however, that the killings were intentional and that the loaded weapons were intended not just to frighten, but were there with the potential for killing and the practising of the weapons that I have referred to, testing the weapon's capacity to fire shortly prior to the killings make it clear that killing was in contemplation of the parties, or there was an intention to inflict, with the weapons, grievous bodily harm. 65 In the circumstances of the killing of the three deceased I find beyond a reasonable doubt that there was a joint criminal enterprise between the two prisoners which contemplated the use of the firing of the weapons that were in fact used, and that the killing of the three deceased was in contemplation. I find beyond a reasonable doubt that the three deceased were killed by the firing of the loaded pistols at close range by one or other of the two prisoners and that each of the deaths occurred by one or other of the two prisoners as part of their joint criminal enterprise. 66 I also find beyond reasonable doubt that the circumstances of the shooting of Robin David was committed by one or other of the two prisoners as part of that joint criminal enterprise and that the enterprise contemplated the murder which was attempted as a necessary intent to the execution of the agreed joint criminal enterprise, and that whichever of the two prisoners attempted that murder of Robin David, the attempt was in contemplation as part of the joint criminal enterprise earlier referred to and that both prisoners are guilty of attempted murder. 67 I now set out the subjective facts concerning Georgiou. The prisoner Georgiou was born in Greece and emigrated to Australia with his family in 1969. He is 33 years old. He is the youngest of four children and appears to have been raised in a close and supportive family environment. At the age of 18 the prisoner left home, moving in to live with his sister who is six years older than he. The prisoner maintained contact with his family after he left the family home, attending family functions and gatherings until he was arrested. 68 The prisoner resided at his sister's home for approximately 10 years. He would look after his sister's children while she was at work and would often cook for them. The prisoner has been in a close relationship with his defacto wife Wendy Duncan for some years. Prior to incarceration he resided with her and her two year old daughter in Bondi. They plan to marry while the prisoner is in custody. 69 The prisoner was educated to School Certificate level, leaving school at the age of 16 to enter into an apprenticeship as a mechanic for four years while working for his father who was also a mechanic. The prisoner did not complete the apprenticeship, leaving just prior to his final examinations. He had some subsequent work as a mechanic whilst living with his sister and had some short-term casual work. His sister commenced a car rental/leasing business for the prisoner. The business was later transferred to his name. The prisoner operated his business from his home in North Bondi for approximately one year until he was arrested. 70 The prisoner Georgiou has a criminal record mainly consisting of traffic matters concerning his bike riding. This criminal record does not, in my view, impact on the sentence to be imposed. A number of character witnesses, including members of his family, have been admitted into evidence. I largely accept the good things his family say about him. People who commit quite horrific crimes, however, are still quite capable of being good and kind family members. 71 Consistent, however, with the prisoner Georgiou's claim of innocence. I find there has been no remorse or contrition shown for these terrible crimes. 72 The subjective material in relation to the prisoner Harrison is that he is some 39 years old. He was born and bred in Victoria and has two sisters, both of whom are married with children and hold professional positions. 73 The prisoner Harrison left school at the age of 17 after completing year 11 and enlisted in the Armed Services. He served three years in the Armed Forces in Townsville then left to return to Victoria where he obtained labouring type work to be closer to his family. Twelve months after he returned to Victoria he moved to Sydney to work as a labourer and in 1996 he opened a tattoo business. The prisoner has been married once, ending in divorce some four or five years later. He has two children from that relationship. He has not seen his two children since his arrest. Three years ago he met his current partner, Lena Laboyrie, and they have a daughter who is quite young. 74 The prisoner had been a member of the Rebels Outlaw Motorcycle Club from 1985 to 1996. He said that his reason for leaving the Rebels was that, as a tattooist, his business targeted the gay population and that was not acceptable to members of the Rebels. The prisoner claimed that he no longer had an association with the Rebels, has not been to any Rebels functions except for the prisoner Georgiou's birthday at the Elizabeth Street clubhouse, and on one other occasion in late 1997. At the time of his arrest, however, the prisoner was wearing a Rebels belt which he explained as being his entitlement as a life member. I do not accept that the prisoner Harrison no longer had a continuing association with members of the Rebels Motorcycle Club. 75 The prisoner does not have any previous criminal antecedents but, consistent with his claim of innocence, he has shown no remorse or contrition for the offences. 76 Whilst incarcerated the prisoner Harrison has held responsible positions of trust within the correctional centres where he has been held. He has utilised his artistic talent to produce a large wall painting with a Christian theme and was planning other work prior to his transfer to the Lithgow Correctional Centre on 13 January 2000. The prisoner has also enrolled in an Art Certificate Course through TAFE while he is in custody. 77 I have been furnished with a number of Victim's Impact Statements on behalf of each of the three deceased under the Victims Rights Act 1996. In reading these, the Court is acutely conscious of the stress the deaths of the deceased must have caused, and will continue to cause. The families have most movingly depicted their individual loss, and this is noted by the Court with sadness. 78 However, in accordance with the decision of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 67 at pp.84-85, I am unable to take into account the Victim's Impact Statements in determining punishment for the offence and, although I am moved by those statements, I disregard them for sentencing purposes. 79 The principles of law concerning the process of sentencing were set up by the New South Wales Court of Criminal Appeal in R v Isaacs (1997) 90 A Crim R 587. The Court held at pp. 591-592 that there are five well established principles of law and practice for the judge to take into consideration: "First, it is for the judge and not the jury to determine punishment. "Secondly, the judge must determine the facts for sentencing which may have emerged in evidence in the trial or the course of sentencing proceedings and this involves an exercise of judicial discretion obliging the Court to find the facts material to that exercise. "Thirdly, the primary constraint upon that decision-making process is that it must be consistent with the jury's verdict. "Fourthly, that the findings of facts to be relied on must be found beyond reasonable doubt. "Fifthly, a sentencing judge has no requirement, other than being consistent with the jury's verdict, to find facts which are most favourable to the offender provided that in the resolution of any reasonable doubt in favour of the accused then the Court is obliged to sentence upon the facts most favourable to the offender because of the application of the principle in four above." 80 In the fact finding process and in the sentencing I have applied these principles. 81 As this sentencing of the two prisoners arises from the same set of facts and both prisoners have been found guilty of the same offences, the Court must consider that although the prisoners come before the Court with different antecedents and character, it is not appropriate in my view that the application of the principle of parity for the same offence warrants no divergence in sentence between the two prisoners. They were arrested at a different time and their respective sentences will reflect that date of arrest. The sentence will be the same for both prisoners for the four offences for which they have been found guilty. 82 For the offence of murder under s 19A(1) of the Crimes Act 1900, ("the Act") a person convicted of murder is liable to life imprisonment. However, under s 442(1) of the Act, a court may pass a sentence of imprisonment of lesser duration. It is within the discretion of the Court in an appropriate set of circumstances for life imprisonment to be imposed. 83 Under s 431B(1) of the Act a court may impose a sentence of penal servitude for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence of life imprisonment. 84 It has been submitted to me by the Crown that these murders are in the worse category of cases and that this court should give consideration to the maximum penalty. 85 In examining the appropriate sentences for these offences, I have looked at the range of sentences published by the Judicial Commission and the principles of sentencing, particularly as enunciated in R v Veen [No. 2] 164 CLR at 465 at p.476 for some of which purposes I will refer to shortly. 86 It has been held the imposition of the maximum penalty, that is life meaning life, is reserved for the worse category of cases; Ibbs v the Queen (1987) 163 CLR 447 at 451 and 452. In R v Twala (unreported, CCA, 4 November 1994) and in particular the judgment of Badgery-Parker J at page 7, with whose judgment the other judges agreed, provided that in order to characterise a case as being the worse category: "It must be of great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed.)" 87 In determining whether the penalty of life imprisonment should be imposed, the Court may consider the aggravating circumstances; the question of whether the sentence is to be served in protection; whether there are mitigating circumstances, for example a plea of guilty or contrition; whether the prisoner exhibited callousness and lack of remorse; whether there is no prospect of rehabilitation. 88 These principles were set out in R v Garforth (unreported, CCA, 23 May 1994.) It is not necessary that a murder be planned or premeditated to constitute a worse case scenario; Leonard (Richard William) ( unreported, CCA, 7 December 1998.) 89 In the oft cited case of R v Fernando NSW SC 21 August 1997, his Honour Abadee J held at 537: "It is always important to seek to determine the sentence appropriate to a particular crime and to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place." 90 In R v Kalajzich 94 A Crim R 41, a case involving a proven contract killing, Hunt CJ at CL found, at p.51: "The maximum penalty for murder of penal servitude for life, meaning for the term of the prisoner's natural life is (as I have said) reserved for cases falling within the worst category of cases (citing Ibbs) but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment. (citing Garforth pp 11-13) It must nevertheless be possible in the individual case to point to its particular features which are of very great heinousness, and there must be an absence of any facts mitigating the objective seriousness of the crime (as distinct from any subjective features mitigating the penalty to be imposed.)" 91 In the decision of R v Petroff (unreported, 12 November 1991) Hunt CJ at CL on the nature of a life sentence, as follows: "The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment the offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive, and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by prison authorities." 92 There are many in the community who would consider that the callous and unprovoked contemplated killing of three, almost four, human beings would, by that fact alone, and the objective seriousness and the circumstances of the killing would warrant the imposition of life imprisonment. It is however, in my view, necessary to distinguish the present case from those cases that may be contemplated involving acts of torture, horror and the terrorising or gross injury being done to young children or unprotected people, or matters such as contract killings. I do not consider there is sufficient evidence to find to the appropriate standard that there was here a contract killing. 93 After due consideration and taking into account the ages of each prisoner I believe that, although a very lengthy sentence is warranted, the facts in this case, horrific though they are, do not warrant the imposition of life imprisonment for the prisoners. 94 In the present case each of the offences were interrelated and were committed during a single event. Where, as here, there are a number of offences, although separate but substantially contemporaneous and connected, a sentencing judge may impose a single sentence for one crime and then, for each of those other crimes, concurrent sentences. However, it is necessary that the resultant sentence served reflect the total criminality involved. 95 Ultimately the aggregate must be looked at to determine whether it is just and appropriate, having regard to the totality of criminal behaviour. If it is manifestly excessive, it will offend against the totality principle. The meaning and effect of that principle, adopted by the High Court in Mill v the Queen (1988) 166 CLR 372, and referred to in Thomas: Principles of Sentencing 2nd ed 1979 is as follows: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate.' The principle has been stated many times in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being added up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.' 'When... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic in passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." 96 It is later said in Thomas, supra, at page 57-58: "The many decisions of the Court in which the totality principle has been applied to explain the reduction of the cumulative sentence made up of correctly calculated individual parts suggest the principle has two limbs. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation." 97 These principles were again most recently discussed by the High Court in Postiglione (1997) 71 ALJR 475 at 881 and 882. I have applied these principles as to totality in the sentences that I will impose. 98 In fixing the sentence I have considered that there be a proportionality between the sentence and the facts of the crime itself. The gravity of the crimes here are most extreme. There is in this case a great deal of evidence before the court of rivalry between the motorbike gangs, some of which are engaged in serious criminal enterprises. The sentence is intended to reflect general deterrence against the use of violence and killing. It was a callous, senseless and cold blooded killing of each of the three. 99 I propose that the sentence also denounce the use of heavy calibre weapons and the use of weapons to endeavour to achieve base commercial ends. In imposing the sentence I will reflect the totality of criminality in the three murders and the attempted murder, as well as the objective seriousness of each of the four offences. I have taken into account the age of the prisoners and the failure to indicate remorse or contrition. I propose that the same concurrent sentence be imposed on both prisoners for each of the three murders, reflecting in each sentence the totality of the four crimes in which they have been found guilty. I then propose to impose a separate concurrent sentence for the offence of attempted murder on each of them. 100 The sentence that is to be imposed will result in each prisoner being released to society in the latter part of their lives. Section 5(2) of the Sentencing Act 1989 does not, as is often stated, establish a relationship between a minimum term and an additional term. Section 5 of that Act prescribes a requirement for the finding of special circumstances before a court may fix an additional term more than one third of the minimum term. In the present case, in the examination of whether there are special circumstances, I am unable to find that there are special circumstances. However, I consider that the additional term, coming as it does towards the end of the prisoners' lives, does not warrant a period as long as one third of the minimum term and that it is appropriate in this case that a somewhat larger fixed term be imposed reflecting the fact that, after a considerable number of years in prison, an unduly lengthy additional term is not warranted for the latter part of a prisoner's life. It is also my view that the objective seriousness of the offences warrant the imposition of a lengthy minimum term. 101 In the course of this trial the prisoner Georgiou gave evidence but declined to answer a number of quite significant questions as to his whereabouts during the period between his killings and his capture. Despite being given an opportunity to answer such questions, he declined on the basis that he said the evidence would place other people at risk. The prisoner Georgiou has offered no other further excuse or explanation and has not shown cause why he should not be dealt with for contempt. I find him guilty of contempt of this Court. Serious though that contempt is, I propose to impose a period of imprisonment, but I do not consider, in the light of the sentence that I propose to impose for the other offences, that it should be added to the term imposed for the other charges on which he has been found guilty, but will reflect the court's view as to the seriousness of his actions. That term will therefore be concurrent with the other sentences imposed. 102 In compliance with the majority judgment in R v Pearce (1998) 156 ALR 684 and in particular paragraph 45 p.694 it is necessary to fix an appropriate sentence in respect of each prisoner on the basis of each of the three convictions for murder. I fix a sentence of twenty three years being a minimum term of eighteen and an additional term of five years for each conviction for murder , however in the light of there being three murder convictions I will impose for each murder a sentence reflecting the totality of criminality for each of the three murders and the conviction for attempted murder. The sentence for each of the three murders which I propose to impose will be concurrent and each will reflect that totality of criminality. 103 If sentencing for each of the prisoners' for the attempted murder of Robin David in the circumstances outlined I fix a sentence of ten years comprising a minimum term of seven and a half years and an additional term of two and a half years however the accumulation of the totality of the criminality is expressed in the three concurrent sentences which I propose to impose for each prisoner for each of the three murders and additionally I will impose a concurrent sentence for the attempt murder offence without specifying a non-parole period for that latter offence and it will comprise a fixed term, as the additional term is subsumed into that imposed for the murder conviction. 104 Will the prisoners, Constantine Georgiou and Bruce Malcolm Harrison please stand. 105 For the reasons which I have enunciated in the light of the maximum penalty potentially imposed, for the murder of Rick De Stoop on 9 November 1997 you are each convicted and I sentence each of you to a term which includes the totality of the seriousness of the three murders and the attempted murder, to a total minimum and additional term of 33 years to comprise a minimum term of 28 years and an additional term of five years. 106 In the case of the prisoner Constantine Georgiou, that will take into account the time you have served and commence on 3 February 1998 to conclude on 2 February 2026 from which time you will be eligible for release to parole and an additional term of imprisonment of five years to commence on 3 February 2026 and to conclude on 2 February 2031. 107 In respect of the prisoner Bruce Malcolm Harrison, the term of imprisonment will take into account your time in custody and will commence on 9 November 1997 and conclude on 8 November 2025 from which time you will be eligible for release to parole. The additional term will commence on 9 November 2025 and conclude on 8 November 2030. 108 In respect of the murder of Sasha Milenkovic on 9 November 1997, you are each convicted and I sentence each of you to a term, which similarly includes the totality of the seriousness of the three murders and the attempted murder, to a totality of minimum and additional terms of 33 years to comprise a minimum term of 28 years and an additional term of five years. Such terms will commence on the same date respectively for each prisoner in respect of the term imposed for the murder of be Rick de Stoop. 109 Similarly, in the case of the prisoner Constantine Georgiou, taking into account time served and commenced on 3 February 1998, the sentence is to conclude on 2 February 2026 from which date you will be eligible for release to parole and an additional term of imprisonment of five years to commence on 3 February 2026 and to conclude on 2 February 2031. Such terms will commence on the same date respectively for each prisoner in respect of the term imposed for the murder of be Rick de Stoop. 110 For this offence in respect of the prisoner Bruce Malcolm Harrison, the term of imprisonment will also take into account your time in custody and will commence on 9 November 1997 and conclude on 8 November 2025 from which time you will be eligible for release to parole. The additional term of imprisonment will commence on 9 November 2025 and conclude on 8 November 2030. 111 For the murder of Michael Kulakowski on 9 November 1997, you are convicted and I sentence each of you to a term which includes the totality of the seriousness of the three murders and the attempted murder to a total of minimum and additional terms of 33 years, to comprise a minimum term of 28 years and an additional term of five years. Such terms to commence on the same date and to be concurrent with the terms imposed in respect of the murders of Rick De Stoop and Sasha Milenkovic. 112 In the case of the prisoner Constantine Georgiou, that will take into account time served and will commence on 3 February 1998 to conclude on 2 February 2026 from which time you will be eligible for release to parole, and an additional term of imprisonment of five years to commence on 3 February 2026 and to conclude on 2 February 2031. 113 In respect of the prisoner Bruce Malcolm Harrison, the term of imprisonment will take into account your time in custody and will commence on 9 November 1997 and conclude on 8 November 2025 from which time you will be eligible for release to parole. The additional term of imprisonment will commence on 9 November 2025 and conclude on 8 November 2030. 114 For the attempted murder of Robin Aprim David, you are each convicted and each is sentenced to a fixed term of imprisonment for 10 years which will take into account the time already served and will be concurrent with the sentence imposed in respect of the murder of Rick De Stoop, Sasha Milenkovic and Michael Kulakowski. 115 In the case of the prisoner Constantine Georgiou, that will take into account time served and commence on 3 February 1998 to conclude on 2 February 2008. 116 In respect of the prisoner Bruce Malcolm Harrison, the term of imprisonment for the offence of attempted murder will take into account your time in custody and will commence on 9 November 1997 and conclude on 8 November 2007. 117 Constantine Georgiou, in relation to the contempt of court in refusing to answer the questions lawfully put to you in the course of these proceedings and refusing to adhere to the directions of the court, you are convicted of contempt of court and sentenced to a term of imprisonment for one year to commence today, 10 March 2000 and to conclude on 9 March 2001. oOo Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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