R v Filippou [2011] NSWSC 1607

Supreme Court New South Wales

Medium Neutral Citation: R v Filippou [2011] NSWSC 1607 Hearing dates: 8/12/2011 Decision date: 22 December 2011 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: In relation to the murder of Samuel Willis, the offender is sentenced to imprisonment comprising a non-parole period of 20 years commencing on 28 June 2010 and expiring on 27 June 2030, with a balance of term of six years. In relation to the murder of Luke Willis, the offender is sentenced to imprisonment comprising a non-parole period of 20 years commencing on 28 June 2015 and expiring on 27 June 2035, with a balance of term of six years, commencing on 28 June 2035 and expiring on 27 June 2041. The earliest date on which the offender will be eligible for release on parole is 27 June 2035. Catchwords: CRIMINAL LAW - Sentence - two counts of murder - both committed in single confrontation - history of neighbourhood dispute - three gunshots at point blank range Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) Christopher Angelo Filippou (Offender) Representation: P Barnett SC (Crown) P Rosser QC / N Moir (Offender) Solicitor for Public Prosecutions (Crown) John Anthony Solicitors (Offender) File Number(s): 2010/208897 Publication restriction: Nil

SENTENCE 1On 10 October 2011 Christopher Angelo Filippou was indicted in relation to two charges of murder. The first charge was that on 27 June 2010 he murdered Samuel Willis. The second was that on the same day he murdered Luke Willis. In relation to both charges the offender pleaded not guilty of murder but guilty of manslaughter. The Crown did not accept this plea and the matter went to trial on the issue of murder. In accordance with an order previously made, a jury had been dispensed with and the trial proceeded by myself alone. 2Identical issues were raised in relation to both charges. The sole defence raised by the then accused was the partial defence of provocation. In the end I determined that the Crown had disproved this defence beyond reasonable doubt. Accordingly, on 18 November 2011, I entered a verdict of guilty of murder in relation to both charges. I published my reasons for reaching that verdict. Subsequently, on 8 December 2011, evidence was tendered and submissions made by both parties relating to sentence. 3The facts giving rise to the killings, briefly, are as follows. The two victims, Luke and Sam Willis, were brothers. They were aged respectively 28 and 22 at the time of their deaths. Since about 2000 they had been living intermittently in a house at Mayfield owned by their father. Sam Willis was still living there in June 2010. Luke Willis had moved out and was living in his own home at that time, but he kept in close contact with his brother and visited the house regularly. 4In early 2009 the offender, Christopher Filippou, bought the house immediately to the rear of the Willis property, so that they shared a back fence. The offender lived there with his wife and his adult son. 5About a year before the killings a neighbourhood dispute developed between the two households. This apparently had its genesis in a noisy drinking session in the Willis back yard in June 2009. A few days later an anonymous handwritten note was left at the Willis property complaining of the noise emanating from the household. Its terms were threatening. About seven months later, in January 2010, following another party in the Willis home, a further anonymous letter was received. This was again in threatening terms. A handwriting expert called by the Crown at the trial was firmly of the opinion that both letters were written by the offender, and I accepted this to be the case. 6After receiving the first of these letters, Sam Willis canvassed the surrounding neighbours as to whether they knew anything about it, and whether they were concerned by noise emanating from the Willis household. According to what he told his father, the response was generally positive and sympathetic, except from the offender, who said: "If you come around and threaten me again I will shoot you". 7A few acts of minor vandalism took place early in 2010 involving objects littered around the Willis property or paint sprayed on the front fence. The night before the killings, on Saturday 26 June 2010, Sam Willis and his friend Alex Best found a plastic bag on the Willis front lawn, containing a mass of dried leafy matter and a note containing the words, "Cheers you dope from Alex". Sam Willis was in no doubt as to who had left this bag on the front lawn, namely the neighbour immediately to the rear of the Willis house. He and his friend Alex decided to go round to the offender's home and talk to him about what had been happening. However, on the way they telephoned Luke who talked them out of it, saying that they might disturb the offender's children if they did so. Accordingly, instead of knocking on the offender's door, Sam and his friend poured the contents of the plastic bag onto the offender's white utility which was parked in the driveway of his home. Mr Best also scratched the words "Suck me" on the back of the utility. 8On the evening of Sunday 27 June 2010, Luke and Sam Willis came to the Mayfield home after being out for much of the day and saw that the lounge room window at the front of the house had been smashed. A plastic bag containing telephone books had been thrown through the window. The Willis brothers had no doubt that it was the neighbour at the rear of their home who was responsible for the damage and they set out to talk to him. 9I should interpolate here that the offender's son, Christopher Filippou Junior, gave evidence at the trial that it was he, not his father, who broke the front window of the Willis home. Despite real misgivings about this evidence, in the absence of any contrary evidence I had to conclude that this was the case and that the offender knew nothing about the breaking of the window. 10It was at about 6 pm on the Sunday evening that Luke and Sam Willis arrived outside the offender's home. The offender's son had gone out earlier, so the offender was alone with his wife. Mrs Filippou said that she heard the two men calling out at the front of their home. She told the offender, who went straight down the hall and out the front door. 11According to what the offender later told the police, when he went to the street outside, the two brothers were "loudmouthing". The older brother, Luke, whom the offender had never seen before, took a gun out of his pocket and said, "I've got this". The offender immediately grabbed the gun and shot Sam Willis through the neck and Luke Willis through the left side of his chest. Both men fell to the ground. The offender then fired a second shot into Sam Willis' chest. Both men were dead before the police or ambulance officers arrived at the scene shortly afterwards. 12Immediately after the shooting, the offender went inside and asked his wife to telephone their son Christopher. He then returned outside and placed the revolver into Sam Willis' hand. After this he went back inside, collected his car keys and drove away. He spent the night with a friend and the next morning handed himself into the Belmont Police Station. Later that day he entered into a recorded interview with the police in which he freely admitted that he had shot the two brothers. He effectively said that they had asked for it by producing the gun. 13There was thus no dispute that it was the offender, Christopher Filippou, who fired the fatal shots at Luke and Sam Willis. As already indicated, the only issue at the trial related to the partial defence of provocation, which reduces the offence from murder to manslaughter. As relevant here, the two issues raised under provocation were: first, whether the fatal shooting in each case was done as a result of a loss of self-control on the part of the offender, which was induced by conduct of the deceased towards him; and, secondly, whether the conduct of the deceased was such as could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent to kill or inflict grievous bodily harm upon the deceased. Once the issue of provocation has been raised, the burden lies on the Crown to disprove it beyond reasonable doubt. As already indicated, identical issues were raised in relation to both charges. It was accepted that provocation by either one of the Willis brothers would be relevant in relation to the killing of the other. 14A significant factual issue arose under this defence, relating to the origin of the small .38 calibre revolver which fired the fatal shots. A considerable amount of evidence was devoted to whether it was Luke Willis who brought the revolver to the confrontation, as described by the offender, or whether it was the offender himself. Although I considered it unlikely that the revolver emanated from the Willis household, I was unable to find beyond reasonable doubt that the offender was lying when he said that it was Luke Willis who first produced the weapon. Accordingly, I accepted, for the purposes of the trial, that it was Luke Willis who brought the revolver to the confrontation. 15In considering whether the offender had lost his self-control when he fired the fatal shots, I took into account the offender's actions immediately after the killing, which did not denote the actions of a person who had lost control of himself. Of even greater significance were the numerous statements made by the offender well after the event in which he continued to justify his conduct and to indicate that he would do the same thing again in the same situation. He even said at one stage that he was "fucking proud" of what he had done. These were not the statements of a man who had come back to rationality after a temporary loss of self-control induced by the conduct of the deceased. Accordingly, I concluded that he had not lost his self-control when he inflicted the fatal injuries on the two brothers. 16Even if, contrary to my finding, the offender had lost his self-control at the time of the killings, I found that an ordinary person confronted with the situation which met the offender that evening could not have lost self-control so as to form an intention to kill or inflict grievous bodily harm on the two deceased. 17It is for these reasons that I found that the defence of provocation had been disproved by the Crown and I entered a verdict of guilty of murder in relation to both charges. 18The maximum penalty for the offence of murder is life imprisonment, with a standard non-parole period of 20 years. The standard non-parole period is generally applicable in relation to offences in the mid-range of objective seriousness, subject to matters which might aggravate or mitigate the otherwise appropriate sentence. In the present case, where the offender stands convicted of two charges of murder, there is a major question as to the extent to which the sentence in one case should be concurrent with or cumulative upon the sentence in the other case. I shall be discussing this later. 19I turn first to consider the aggravating and mitigating factors as they relate to the offences themselves as opposed to the offender. Other than aggravating factors which are likely to be inherent in the offence of murder, there is only one matter which is potentially relevant here, namely that the offence involved two separate killings, with three shots being fired at close range at the two victims. On the other hand, the fact that there were two offences of murder and therefore two victims will be taken into account in the partial accumulation of sentences. Accordingly, it would be inappropriate to also take it into account as an aggravating feature of the individual offences. 20The single mitigating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 is that the offence was not a planned or pre-meditated one. 21I think I should say a little more about this, as I am aware that the victims' family considers that it was indeed a pre-meditated offence. This is based on the proposition that it was the offender himself who threw the books through the front window of the Willis home earlier that Sunday, and then, in effect, armed himself for what he regarded as the inevitable visit that would follow from the Willis household. However, there was sworn evidence at the trial that it was not the offender but his son, Christopher Filippou Junior, who broke the front window of the Willis home that day, in retaliation for the minor damage which had been occasioned to the offender's car the night before. I have real misgivings about that evidence, which I expressed in my principal judgment. However, in the absence of any evidence to the contrary, I have no choice but to find that the offender knew nothing about the breaking of the window that day. It follows that there was nothing to alert the offender to the likely arrival of representatives of the Willis household. It is on this basis that I am bound to conclude that the offence was not a planned or pre-meditated one. 22As to the origin of the revolver which fired the fatal shots, I accept the Crown's submission that for sentencing purposes I am in a form of limbo. I think it likely that it was the offender who brought the firearm to the confrontation. However, I cannot be satisfied of that matter beyond reasonable doubt, which is the standard required for an aggravating factor on sentence. By the same token, I cannot be satisfied on the balance of probabilities that it was Luke Willis who presented the gun, this being the standard which is required of a mitigating factor on sentence. Accordingly, I am obliged to sentence the offender on the basis that the origin of the revolver is an unknown quantity. 23The Crown Prosecutor submitted that the criminality or the objective seriousness in the killing of Samuel Willis is greater than that relating to the killing of Luke Willis. This is because it involved two shots, the second being fired into the victim who was already lying wounded on the ground, in a situation where the offender deliberately moved into a position to fire the second shot. This is certainly the case. Indeed it is likely that the offender realised that, despite the seriousness of Sam Willis' neck wound, it was not necessarily a fatal injury. This is the probable explanation for the fact that he then fired a further shot into Sam Willis' chest when he was lying on the ground. To this extent I accept the Crown's submission that there was an additional element of deliberation in relation to the killing of Sam Willis. However given that all three shots were fired within a very short period of time - it would seem approximately ten seconds - it is difficult to attach a great deal of significance to this factor. There was no time for any serious reflection or deliberation. 24Mr Rosser submitted that the offences fall below the mid-range of objective seriousness. He pointed out that there were no aggravating factors other than those inherent in the offence of murder. In mitigation was the fact that the offences were not planned or pre-meditated. However, I am quite unable to find that these senseless and violent killings fall anywhere below the mid-range of objective seriousness. In my opinion that is where both of them should be categorised. 25I now turn to say something about the offender personally. He is now 54 years old. He turned 53 on 24 June 2010, three days before he committed these offences. He is no stranger to the criminal courts. His first offences, being offences of dishonesty and drug related offences, brought him before the Children's Court when he was only 15 and then 17 years old. At the age of 18 he was sentenced to imprisonment for three years and three months with a non-parole period of a little under one year for three offences of break, enter and steal together with a drug-related offence. That was in 1976, 35 years ago now. Since then he has not received any further custodial sentences. Indeed, his only convictions during those 35 years were in March 1999 when he was fined a total of $600 after pleading guilty to one charge of common assault and one of contravening an apprehended violence order. These latter convictions are particularly relevant here, for they arose out of a neighbourhood dispute between the offender and his then next door neighbour. This was the culmination of a history of problems between the two households which had led, some time earlier, to the offender and his neighbour taking out apprehended domestic violence orders against each other. The Facts Sheet in the 1999 case was tendered by the Crown before me. It shows that the offender was exhibiting a great deal of anger and aggressiveness on that occasion. Fortunately the victim was able to retaliate and force the offender to retreat, thereby avoiding any serious physical injury during the course of this confrontation. The penalty, as indicated, was a fairly minor fine. 26Otherwise there is not a great deal of detail about the offender's life history in the material currently before the Court. He himself did not give evidence, either during the trial or on sentence. A pre-sentence report was tendered by the Crown, written by Ms J McMahon of the Probation and Parole Service, and the defence tendered a report of Dr Bruce Westmore dated 13 July 2010. This latter was prepared following an interview with the offender on 10 July 2010, less than two weeks after the offences. These two documents between them paint the following picture of the offender's background. 27The offender was born in Sydney to Macedonian parents. He was the eldest of three brothers. He was brought up in Newcastle and apparently had an uneventful childhood, leaving school at the age of 16 years after obtaining his school certificate. He then started work at the Newcastle dockyards. This coincided with the commencement of his drug use. Between the ages of 16 and 18 years it seems he was heavily into drugs, taking anything which became available to him. It was at this stage that he committed the offences which resulted in the custodial sentences referred to earlier. 28After his release from custody the offender's drug use apparently decreased dramatically. It was at about that time that he commenced his relationship with his wife. They were married a few years later. They have three children, currently aged between 34 and 27 years old. 29The offender's drug use did not, however, come to a complete end with his incarceration as a young man. He continued to use cannabis from time to time until a few years ago. More significantly, he has continued to use heroin by needle, the last occasion being only two weeks before the present offences. He told Ms McMahon he generally took heroin on a monthly basis. Dr Westmore reported him as saying that he used it every one to four weeks, depending on its availability. The offender's wife and children were unaware of his continuing heroin use. Indeed, they reported him as adopting an "anti-drug" stance within the home. 30The offender's alcohol use has been regular but moderate. He apparently has a routine of drinking beer and whiskey at weekends, in order to relax himself. He had been drinking immediately before he committed the present offences, but he has always denied that alcohol played any part in the events of that evening. 31The offender has had an essentially stable employment history. He worked as an electrical fitter's assistant with the State Rail Authority for a number of years. More recently, his principal employment has been as a cleaner. At the time of these offences he had been working for about three years as cleaner and general assistant at a Newcastle primary school. The offender told Dr Westmore that he had good relationships with his co-workers. This was confirmed in the pre-sentence report. The author of the report had contacted the deputy principal of the school, who said that the offender was a reliable employee who was well-liked by both staff and students. 32The offender and his wife Glenda have been married for 33 years. They clearly have a close relationship. Indeed the offender told both Dr Westmore and the author of the pre-sentence report that his life essentially revolved around his family, and that he did very little outside socialising. His wife and children confirmed this. Apart from work and regular visits to the TAB, they said that he used to spend virtually all his time at home. He was repeatedly described as a private person who kept very much to himself. 33It became apparent during the course of the trial that the offender has a considerable amount of anger underlying his personality. Indeed this was, in my view, a significant factor in the commission of the present offences. His anger also manifested itself during his confrontation in 1999 with his then next-door neighbour. On the other hand, the offender told Ms McMahon that he did not like confrontation, and she observed that he did not appear to have problems with anger management at work or at home. 34This is but one of several enigmatic aspects of the offender's life as revealed by the material before me. Another one is that, in spite of his closeness to his wife and children, he has long been alienated from his birth family: he has had no contact with his parents or at least one of his two brothers for over 14 years now. 35The offender been less than entirely frank with the police, Dr Westmore, Ms McMahon or even his own family about some aspects of his life and of the events leading up to these offences. His family's ignorance of his heroin use is one illustration of this. In addition, when the offender recounted the history of the offences to Dr Westmore, he denied that he had written the two letters which had been left at the Willis home during the twelve months before the killings. The expert evidence given at the trial left it in no doubt, as I commented earlier, that it was the offender who wrote these letters. 36Similarly, the offender told the police and Dr Westmore that he spent the night after the killings in his car which was parked in a Newcastle suburb. It is obvious that he wanted to avoid any reference to the friend at whose home he in fact spent the night. His family knew nothing about this friend, and he clearly wanted that situation to continue. The friend, incidentally, knew him as "Steve Tatu". She had never heard of Christopher Filippou. The offender gave Ms McMahon an explanation for this friendship in terms which frankly defy credulity when one has regard to the totality of the evidence. 37It can be said of all of us that there is only one person who really knows our inner workings, and that is particularly so in the case of this offender. One thing is certain, namely that he has exhibited no remorse whatsoever for the fact that two young lives have been lost as a direct result of his actions. Indeed, more than once he sought to place the blame on the deceased brothers, saying on one occasion that they "probably deserved what they got". 38The offender's lack of contrition or remorse cannot in any way be used as an aggravating factor on sentence, but it certainly deprives him of the benefit of any mitigation on that account. It is also potentially relevant to the need for personal deterrence. However, given the length of the sentences the offender will be serving in any event, and the age he is likely to be on his release, personal deterrence is of little, if any, significance in this case. 39This brings me to a consideration of any aggravating or mitigating factors under s21A insofar as they relate to the offender personally. And so far as I can ascertain, there are none of any particular relevance here. Certainly the offender has a record of previous convictions, but they are so long ago now, and of such a different order to the current offences, that they fade into insignificance. For reasons already given, I could not say that the offender has good prospects of rehabilitation, but that also is of minimal importance, given the time he will be spending in custody. 40As the Crown Prosecutor has very fairly pointed out, there is also a question as to whether the offender should be given a reduction in penalty under s 22A of the Act because of his co-operation in the presentation of evidence at his trial. As I observed in my principal judgment, considerable efficiencies were gained during the trial as a result of close co-operation between counsel as to the presentation of evidence. This resulted in a reduction in the length of the trial, and a corresponding facilitation in the administration of justice generally. This is certainly the case. However it cannot be regarded as a particularly significant matter. The principal reason why the presentation of evidence was able to be facilitated was because the trial was by judge alone, rather than by judge and jury. And it was the offender who sought to dispense with a jury, on account of the considerable adverse publicity in the local media. Moreover, when placed into the context of the lengthy sentences which the offender will be serving in any event, this matter again fades into insignificance. 41It follows that there is very little material, either relating to the offences themselves or the offender personally, which suggests that the sentence in each case should be significantly greater or lesser than that provided by the standard non-parole period. 42This is not to suggest that there was anything ordinary or standard about these two unprovoked killings, committed by this inherently angry man. His acts of gratuitous and senseless violence bought two promising young lives to an unnecessary and a tragically untimely end. Whatever the origin of the firearm, the two brothers were clearly unarmed when the offender fired the fatal shots at point blank range, from less than a metre away. The two young men had no chance whatsoever: they were given no warning, and no opportunity to escape. Indeed these killings were so senseless and so unnecessary that one cannot help wondering about the mental health of the perpetrator. However Dr Westmore, who saw the offender only two weeks after the offences, found no evidence of mental illness, either then or at the time of the offences. 43The anguish and grief caused by the offender's actions is immeasurable. The offender expressed concern about the effect upon his own family, but this cannot be compared to the devastating and permanent loss suffered by the family and friends of the two victims. Luke and Sam Willis were fine young men, with diverse talents, who were just embarking on their lives and careers which were full of promise. All of this was cruelly brought to a sudden and untimely end. They were the only boys in the family, and the loss suffered by the rest of their family was graphically expressed in extremely moving victim impact statements which were read to the Court by their father, mother and sister Jessica. I would like to convey to each of them the sincere condolences of myself and of the Court. I take these statements into account in the manner provided by the legislation. 44It goes without saying that in sentencing the offender I am taking into account the general purposes of sentencing, namely retribution, rehabilitation, the protection of the community and general deterrence. As already mentioned, individual deterrence is not a significant issue in this case, given the advanced age that the offender will be upon his release from custody. For similar reasons, it is unnecessary to consider whether there are special circumstances which might justify a departure from the statutory ratio between the non-parole period and the total sentence, notwithstanding that the partial accumulation of sentences will result in a shorter balance of term than would normally be the case. 45For all the reasons I have given thus far, I propose to impose a non-parole period in relation to each offence of 20 years, with a balance of term of six years. That leaves outstanding the very significant question of the extent to which the sentences should be concurrent with and cumulated upon each other. 46It goes without saying that there must be a significant degree of accumulation in the circumstances of this case. After all, one of the starting points in the sentencing process is that the offender has taken not one, but two lives. On the other hand, I must have regard to the principle of totality, and impose a sentence which reflects the fact that the two offences occurred within seconds of each other, as part of the same confrontation. Taking all these matters into account, I propose to accumulate the sentences by a period of five years. 47The offender has been in custody since 28 June 2010, and his sentence is to commence on that date. 48Christopher Filippou, in relation to the murder of Samuel Willis I sentence you to imprisonment comprising a non-parole period of 20 years commencing on 28 June 2010 and expiring on 27 June 2030, with a balance of term of six years. 49In relation to the murder of Luke Willis I sentence you to imprisonment consisting of a non-parole period of 20 years commencing on 28 June 2015 and expiring on 27 June 2035, with a balance of term of six years, commencing on 28 June 2035, and expiring on 27 June 2041. 50The total sentence is therefore one of 31 years' imprisonment. The earliest date upon which you will be eligible for release on parole will be 27 June 2035.