Regina v Dimitris Lagopodis [2000] NSWSC 1201

New South Wales Supreme Court

CITATION : Regina v Dimitris Lagopodis [2000] NSWSC 1201 FILE NUMBER(S) : SC L97/005 HEARING DATE(S) : 1 December 2000 JUDGMENT DATE : 11 December 2000

PARTIES : Regina Dimitris Lagopodis JUDGMENT OF : Sully J

COUNSEL : M. C. Grogan - Crown P. Byrne SC - Applicant SOLICITORS : S. E. O'Connor - Crown Ross Hill & Associates - Applicant LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Robert Charles Veen - 7 July 2000 DECISION : Application granted.; In place of sentence of life imprisonment passed on 7 September 1990, sentence of imprisonment for a term of 18 years, with a non-parole period of 14 years.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

Monday 11 December 2000

97/005 - Regina v Dimitris Lagopodis

JUDGMENT

1 HIS HONOUR: The applicant, Mr Dimitris Lagopodis, applies for the redetermination of a sentence of life imprisonment that I passed upon him on 7 September 1990. The application must be dealt with in accordance with the provisions of schedule 1 to the recently enacted Crimes (Sentencing Procedure) Act 1999. 2 On 31 July 1990 the applicant was indicted before me, jointly with one Michael Kiely. Both were accused of having murdered one Mark Andrew Soyka. Both pleaded not guilty and thereupon they were tried jointly. The jury found both of them guilty as charged. Both were convicted and sentenced to life imprisonment. 3 An appeal by the applicant against conviction was dismissed by the Court of Criminal Appeal on 16 March 1992. An application for leave to appeal against sentence was lodged simultaneously with the appeal against conviction, but that application seems not to have been pursued. 4 The relevant objective facts are canvassed in my remarks on sentence of 7 September 1990 and I need not now repeat them in detail since the objective facts, as I then found them, and the objective culpability of the applicant, as I then assessed it, were not questioned at the hearing of the present application. 5 In 1990, and speaking of the objective culpability of the applicant, I made the following observations: "It is put that the prisoner, as so depicted in those materials, is to be understood as having done what he did under what is described as a subtle manipulation by Mr Kiely, by whom it is fair to acknowledge at once, and on the material before this Court, Mr Lagopodis was undoubtedly influenced. But once it is conceded, as it has been frankly conceded in submissions at the Bar table, that Mr Lagopodis cannot be said to have been so overborne by Mr Kiely as to have lost his, Mr Lagopodis', own free will, then it seems to me to be next to impossible to envisage on the objective facts of this case any circumstances capable of mitigating at all, let alone mitigating significantly, Mr Lagopodis' own culpability in the decease of Mark Soyka. 6 The objective facts so far as Mr Lagopodis are concerned are perfectly clear. He was, on the view most favourable to him, one of four adults who were deliberately engaging in a protracted assault, physical and mental, upon a seventeen year old boy who was himself a drug addict and a Serapax addict totally incapable of defending himself in or against the situation with which he was confronted." And later: "The late Mr Soyka remained a human being entitled to that basic reserve of dignity and self-respect which are the true birthright of every human being; and it seems to me, reflecting upon the circumstances of this crime as they emerged in the evidence, that the worst single feature of the crime is precisely that in the end it took away from that unfortunate young man every last vestige of human dignity and self-respect that he had left to him. I said when I was dealing with Mr Kiely, and I will repeat, for it applies, in my judgment, with equal force to Mr Lagopodis, that what was done to that young man was cruel in its nature, cowardly in its circumstances and brutish in its general character." 7 I see no reason to revise now, let alone to reverse now, any part of that overall assessment. The contrary was not submitted at the hearing of the present application. 8 The nub of the present application is a submission that the applicant's progress in custody since sentence was passed in 1990 has been such as to demonstrate the applicant's achievement of a level of rehabilitation such as to justify the present redetermination of his current life sentence; and such as to justify, also, at least a measure of leniency in the terms of any redetermined sentence. 9 Bound up in that submission are two related propositions: first, that the evidence shows the applicant to be, in the relevant legal sense, remorseful for his crime, and secondly, that the evidence establishes that the applicant is not a continuing danger to society, at least in so far as he is not likely to commit in the future any crime of violence that is properly comparable to the crime of murder for which he is currently imprisoned. 10 The foregoing submissions need to be considered in the context provided by the terms of, in particular, clauses 3 and 7 of schedule 1 previously mentioned. Both of those clauses prescribe various matters to which a Court must have regard when dealing with an application of the present kind. 11 As to cl 3 (1)(a), I need say nothing more than I have previously said about the circumstances surrounding the murder of the late Mr Soyka. 12 As to cl 3 (1)(b), I note that the applicant, when he stood for sentence in 1990, had a record of prior criminal convictions. They are detailed in paragraph 25 of exhibit A. Some of those offences are not trivial; but none of them is remotely comparable in criminality to the crime of murder. I take the same view of the post-sentence disciplinary offences that are detailed on page 4 of exhibit E. 13 As to clause 7 (1)(a), it is convenient to consider, first, two reports made to the Court by the Serious Offenders' Review Council. The reports are exhibits C and D. 14 The earlier report is dated 13 November 1997. It canvasses in the usual way the applicant's post-sentence custodial history and makes the following overall comments: "Although his conduct in prison has for the most part been described as satisfactory, Lagopodis is still considered a high security risk inmate by prison authorities and after a period of more than eight years in custody he remains A2 classification. Although Lagopodis has made spasmodic attempts to accept the assistance inmate development staff could provide, he has not, as yet demonstrated a commitment to using his time in prison constructively. The SORC will persevere with attempts to gain Lagopodis' cooperation and will continue to monitor his performance and development. Should his life sentence be re-determined the SORC will prepare a management plan designed to prepare the inmate for eventual return into the community as a law abiding citizen." 15 The later report is dated 7 November 2000. The comments made in this report of the applicant's custodial history reflect much more favourably upon the applicant. The closing comments too, although brief and somewhat elliptical, have about them, as it seems to me, a much more positively favourable air than did the previous report. The particular overall comments in the later report are: "In the event that the Supreme Court grants Lagopodis' application for the redetermination of his indeterminate sentence, then the Serious Offenders Review Council will develop a plan for his management during the remainder of any minimum term imposed. In due course, Lagopodis will be progressively reduced in security classification leading ultimately to his inclusion in unsupervised Day Leave and Work Release programs in preparation for his eventual return into the community." 16 A fair reading together of these two reports seems to me to warrant the conclusions: first, that the applicant has made continuing, and generally successful, progress towards rehabilitation; and secondly, that the Council sees no cause for present alarm, from the point of view of the relevant public interest, in the prospect of a proper redetermination now of the current life sentence. 17 Prudent optimism of this kind is further justified, in my opinion, by reference to conclusions reached in two well-qualified professional reports. 18 The first report forms part of exhibit B, and was furnished under the date 27 March 2000 by Dr Bruce Westmore, a forensic psychiatrist of well-recognised professional standing in this Court. The second report is exhibit 2 and was furnished under the date 27 November 2000 by Miss/Mrs Sheelagh Daniels, the clinical team leader of CRC Justice Support Inc. 19 The relevant portion of Dr Westmore's report reads, "The offence as noted earlier appears to have occurred in a young man under the adverse influence of an older person. Mr Lagopodis was probably more vulnerable to be influenced because of his age, possibly naivety and a sense of low self-esteem relating to his illiteracy. In the company of the co-accused he probably had power and authority beyond his dreams and certainly some wealth. He is able to acknowledge now that he did commit acts of violence towards the victim and when I asked him about this specifically he acknowledges that he slapped him around the head, whipped him with a cane stick and punched him in the guts.' He reports he was principally motivated by the victim's alleged aggression towards the child. He does however note the victim also is alleged to have stolen money. Until 1997 he is reported to have denied responsibility for the homicide so this is a relatively recent, but positive, development. Clearly, some progress has been made in this regard and talking to a counsellor has been helpful he said. This event does appear to be quite situationally specific, that is it was not an indiscriminate act of violence leading to death. Process of maturation have occurred, Mr Lagopodis has also made some achievements academically. All of these are positive prognostic features and the specific nature of the events leading up to the aggression also mean that this man is probably not likely to act randomly in an aggressive way in the future. Any supportive evidence that he is continuing any sort of close emotional relationship with his co-accused would be seen by me as being negative prognostic factors. Mr Lagopodis himself indicates he has not maintained a close relationship with his co-accused He does appear to have some future goals. While no guarantees can ever be given that Mr Lagopodis will not act in such a way again in the future, I think his risks of doing so are probably very low. To that extent a court could consider looking at a fixed term for him, however I would also indicate that any future time in custody should be spent in a very active, goal directed way to preparing him for release to the community. He will have suffered an element of institutionalisation while in custody and it is likely he will have had contact with undesirable individuals although he does appear to be a fairly confident person now and more able to make his own decisions and this reflects a greater maturity than when he was aged nineteen or twenty. If released it will be most important that he chooses his friends carefully and avoid any subculture involved in illegal business activities." 20 The relevant portions of Miss/Mrs Daniels' report reads: "According to Jim's extensive file he has consistently shown a commitment for rehabilitation and self-determination in the years in which we have been acquainted with him. Accordingly, he is shown to have undertaken a diversity of courses that not only aim to improve his vocational skills but also to improve his own self-concept. In particular, Jim has undertaken study in the area of numeracy and literacy, leather work and so forth. Critical to his ongoing motivation to change is the demonstrated support he has received from his family, at times overcoming great challenges and distances in order that visitation could continue to occur. Based on the evidence before me a letter of support for sentencing redetermination would appear logical and well-deserved. I wish Mr Jim Lagopodis well in his application." 21 I accept the whole of the quoted material. 22 As to clause 7 (1)(b), there is no need to add to what has been previously said. 23 As to clause 7 (1)(c), I note that the applicant was born on 27 May 1964. He was aged, therefore, about 22 and a half years at the time of the murder of Mr Soyka, and he is now aged 36 years and not quite seven months. 24 Clause 7 (1)(d) applies only in the case of an applicant sentenced before 12 January 1990. The present applicant was sentenced on 7 September 1990, so that clause 7 (1)(d) need not be further considered. 25 As to clause 7 (1) (e) there are two specific matters which seem to me to be significant. 26 One of them is easily assessed. Put simply, I am satisfied upon the basis of the letter admitted as exhibit 1 that the applicant, if and when released back into the community, will have a real and a valuable measure of social and domestic support. 27 The other matter is not so clear-cut. It is the matter of remorse. In the case of the present applicant it would not be open to find fairly on the evidence that the applicant is a continuing threat to the community, in the sense that if, and when, released he is likely to do to somebody else what he admittedly did to the late Mr Soyka. But that leaves for consideration a more subtle, but very important question, namely, whether the applicant really does now understand and accept that what he did to Mr Soyka was not only a crime in some technical legal sense, but was also seriously disordered morally. 28 It is not possible, in my opinion, to be dogmatic one way or the other in answering that question. The evidence available in this case does not seem to me to admit of such a black and white approach. I was urged by learned Senior Counsel for the applicant to answer the question favourably to the applicant, in part because of what can be drawn from Dr Westmore's report earlier mentioned; and in part because of what can be drawn from certain notes made in late 1999 by a forensic psychologist who had a number of consultations with the applicant. Having considered the matter as best I can in the light of the contained body of relevant evidence, I would not think it fair to make a positive finding adverse to the applicant; but I would think it both fair and prudent to see the question as still one requiring the careful, and continuing, consideration of the relevant professionals who are involved in the management of the applicant's case. 29 As to clause 7 (3)(a) and (b), I need not add to what I have previously said. 30 Clause 7 (3)(c) is not applicable in any particular way. 31 In drawing together all of the factors previously discussed I have regard to what I consider to be a well-established principle: that the present kind of application should not normally be refused outright, unless the particular Court has reached, upon proper grounds, a conclusion that the appropriate sentence in the particular case is one for the remainder of the applicant's natural life. The authorities are collected in paragraphs 96 and 97 of my judgment delivered on 7 July 2000 in the application of Robert Charles Veen. I do not see how, in the present case, it would be proper simply to refuse the application. The Crown did not contend to the contrary in its submissions at the hearing. 32 I have regard, also, to the submission, which I accept, that the applicant's relevant criminal intent was, on the evidence, an intent to inflict grievous bodily harm rather than an intent to kill. 33 I have regard, finally, to the fact that the applicant has been in unbroken custody for eleven years and not quite six months.