Citation: R v Constantinou [1999] NSWSC 520
Court: Supreme Court of New South Wales
Date: 4 June 1999
Judge(s): James J
Background
The applicant had been convicted in 1984, following a jury trial before Lusher J, of three separate murders committed in the inner suburbs of Sydney between October and December 1982. The victims were elderly men attacked from behind during street robberies carried out to fund heroin purchases. The applicant was also convicted of four counts of robbery with striking and wounding and one count of robbery with striking, offences committed with a co-offender. Lusher J imposed three concurrent sentences of life imprisonment.
The applicant brought proceedings under s 13A of the Sentencing Act seeking to have the life sentences replaced with determinate sentences comprising a minimum term and an additional term. This process, sometimes called life sentence redetermination, allows offenders sentenced to life imprisonment under the old indeterminate regime to seek the setting of fixed terms by the Supreme Court.
The co-offender, Hatziathanasiou, had been convicted of two of the three murders and had already had his life sentences redetermined. Under the sentences set in that application, Hatziathanasiou would become eligible for parole in January 2003 and entitled to release no later than January 2009.
Legal Issues
- Whether the applicant's three life sentences should be redetermined under s 13A of the Sentencing Act by the setting of minimum and additional terms.
- What minimum term was appropriate, having regard to the objective gravity of the three murders, the robbery offences, the applicant's subjective circumstances, and the applicable sentencing principles.
- Whether the principle of sentencing parity with the co-offender Hatziathanasiou was relevant, and if so, to what extent it should moderate the sentences imposed on the applicant.
- What form the additional term should take, given the nature and extent of the offending.
Decision
James J accepted that the application should be granted, finding that the objective gravity of the three murders was severe. All three victims were elderly men attacked from behind at night or during street robberies. The murders were committed in a pattern of violent predatory offending, and the applicant was the primary perpetrator of the physical violence inflicted on the victims. The sentencing judge at the original trial had made no finding about who delivered the fatal kicks to the first victim, but the applicant had admitted to the acts causing death in each case.
The court assessed the applicant's subjective circumstances, noting matters such as his background, conduct while in custody, and any steps toward rehabilitation. Despite the gravity of the offending, James J concluded that complete denial of any prospect of release, even in the applicant's later decades, would be disproportionate given the parity principle when measured against the sentences already set for Hatziathanasiou.
The parity argument carried some weight. While the court identified important differences between the two offenders, including the applicant's greater role in the actual violence and his conviction for three murders compared to Hatziathanasiou's two, those differences did not justify a position where Hatziathanasiou would be released in his forties while the applicant had no prospect of release at any age. James J noted that other applications by triple murderers had previously been granted.
On the question of the additional term, the court determined that the additional term should run for the remainder of the applicant's natural life. This reflected the severity of the offending and the fact that the applicant was the principal perpetrator of the violence. The minimum term fixed the earliest point at which parole eligibility would arise, with any actual release remaining subject to the Parole Board's determination.
Orders Made
- For each of the three murders, the applicant was sentenced to a minimum term of penal servitude of 30 years, commencing 9 January 1983 and expiring 8 January 2013, being the earliest date of eligibility for release on parole.
- An additional term for the remainder of the applicant's natural life was imposed for each murder.
- All three sentences were ordered to be served concurrently.
Key Takeaways
- The Supreme Court confirmed that parity with a co-offender is a relevant consideration in life sentence redetermination proceedings under s 13A of the Sentencing Act, even where meaningful differences exist between the co-offenders' roles and culpability.
- Differences in culpability between co-offenders do not automatically justify a complete denial of any prospect of release for one offender when the other will be released during a normal life span; proportionality remains a governing principle.
- Under s 13A, a court may impose an additional term for the remainder of a prisoner's natural life where the gravity of the offending warrants it, while still setting a finite minimum term that creates eventual parole eligibility.
- Previous grants of s 13A applications by triple murderers were treated as relevant, though not determinative, contextual guidance.
- The minimum term set by the court operates as the threshold for parole eligibility only; actual release remains subject to a separate determination by the Parole Board.
Legislation and Cases Referenced
Legislation:
- Sentencing Act (NSW), s 13A (life sentence redetermination)
- Crimes Act (NSW), s 18 (heads of murder, as then in force)
Cases Referenced:
- McCafferty (cited by the court as an example of a granted application by a triple murderer)
- Rees (cited by the court as an example of a granted application by a triple murderer)
- R v Hatziathanasiou (the co-offender's redetermination, referred to in the judgment)