Citation: R v Fantakis; R v Woods [2018] NSWSC 1700
Court: Supreme Court of New South Wales
Date: 8 November 2018
Judge(s): Wilson J
Background
In August 2011, a man left his Punchbowl home in circumstances suggesting he intended to return shortly. He never did. Following a lengthy police investigation and a trial spanning almost three months, a jury convicted Elefterios Fantakis of his murder and convicted Andrew Woods of being an accessory after the fact to that murder.
The murder arose from a bitter dispute rooted in the death of Fantakis's twin brother in May 2011. Fantakis refused to accept that his brother had died by suicide, and came to believe, delusionally, that the victim had conspired with his brother's former partner to cause that death. When the victim attempted to mediate the resulting dispute, Fantakis turned on him, eventually killing him at a Punchbowl property.
After the killing, Woods assisted Fantakis by sending deceptive text messages from the victim's phone, helping conceal the body in the Georges River Catchment area, and making false statements to police. The victim's body was never found.
Legal Issues
- What sentence was appropriate for Fantakis for murder, having regard to the gravity of the offence, his mental disorder, his moral culpability, and the absence of remorse?
- What sentence was appropriate for Woods for accessory after the fact to murder, having regard to the extent and seriousness of his assistance, his mental illness, and his moral culpability?
- Did the delay between the offending and the sentencing hearing warrant any reduction in either sentence?
- Did the mental illness of either offender, at the time of the offending, reduce moral culpability sufficiently to warrant a more lenient sentence?
- Were there special circumstances justifying an alteration to the standard non-parole period ratio for either offender?
Decision
Gravity of the murder and Fantakis's culpability
The court found that Fantakis murdered the victim by violent application of force at the Wilga Street property between 1:50pm and 4:54pm on 11 August 2011 (at [25]). While the court found that Fantakis harboured thoughts of harming or killing the victim and intended to kill at the time of the attack, it could not be satisfied beyond reasonable doubt that he had lured the victim to that location for the express purpose of killing him (at [24]). The court placed the offence at approximately the midpoint of the range of objective seriousness for murder (at [55]). Fantakis's act of concealing the body was treated as an aggravating circumstance in line with the approach taken in comparable cases (at [54]).
Gravity of Woods's conduct as accessory
The court found that Woods's assistance was extensive, deliberate, and sustained. He took possession of the victim's mobile phone, sent deceptive messages designed to deflect suspicion towards a third party, assisted in transporting and concealing the body, made a false witness statement to police, and encouraged others to provide false information (at [28]-[29], [58]-[60]). This level of assistance fell towards the upper range of criminality for an accessory after the fact (at [63]).
Mental illness and moral culpability
The court found that Fantakis had a delusional disorder in a nascent state by August 2011, which contributed to his false belief that the victim had played a role in his brother's death and drove his intention to harm him (at [75]). However, his understanding of the nature and wrongfulness of his acts remained intact, as demonstrated by the steps he took to conceal the crime, and his moral culpability remained relatively high (at [76]). The court similarly found that Woods was mentally ill at the time of the offending, and that his illness contributed to his decision to assist Fantakis, but his insight and judgment remained good throughout, and he well understood what he was doing (at [79]).
Delay and special circumstances
The court declined to reduce either sentence on account of delay. The delay in charging was substantially caused by the offenders' own concealment of the crime, and the subsequent delay in bringing the matter to trial was attributable to adjournment applications made by the offenders themselves (at [160]-[161]). The court also declined to find special circumstances in favour of either offender. The statutory parole periods arising from the sentences to be imposed were considered adequate to support supervision and any necessary treatment (at [170]-[172]).
Remorse and rehabilitation
Neither offender demonstrated any remorse or contrition, most clearly illustrated by their continued refusal to disclose the location of the victim's remains (at [162]). The court could not make any clear finding as to Fantakis's prospects for rehabilitation, noting that he still appeared to harbour delusional beliefs and had not accepted his diagnosis (at [164]-[166]). For Woods, the court expressed cautious and guarded hope, given his improved conduct and treatment compliance in custody, but tempered that view by his drug history and refusal to acknowledge wrongdoing (at [167]-[168]).
Orders Made
- Elefterios Fantakis (murder): sentenced to 24 years imprisonment, comprising a non-parole period of 18 years from 3 October 2013 (expiring 2 October 2031) and a balance of term of 6 years (expiring 2 October 2037).
- Andrew Woods (accessory after the fact to murder): sentenced to 8 years imprisonment, comprising a non-parole period of 6 years from 3 October 2013 (expiring 2 October 2019) and a balance of term of 2 years (expiring 2 October 2021).
Key Takeaways
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A delusional disorder that motivates an offence can reduce an offender's moral culpability for sentencing purposes, but will not do so substantially where the offender understood the nature and wrongfulness of the act and took deliberate steps to conceal it (at [75]-[76]).
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Where an offender's own criminal conduct necessitated the police investigation, and that offender then took active steps to obstruct the investigation and delay proceedings, the court will not reduce the sentence on account of the resulting delay (at [160]-[161]).
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The Supreme Court assessed Woods's assistance as falling towards the upper range of criminality for an accessory after the fact to murder, given that it was considered rather than spontaneous, involved disposal of a human body, extended over a substantial period, and significantly impeded the investigation (at [63]).
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Continued refusal to disclose the location of a murder victim's remains was treated as cogent evidence of a complete absence of remorse, a factor expressly taken into account at sentencing for both the principal offender and the accessory (at [162]).
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Under section 19A of the Crimes Act 1900 (NSW), murder carries a maximum penalty of life imprisonment; the standard non-parole period applicable on the facts was 20 years, though the court imposed a non-parole period below that figure having regard to the mental illness of the principal offender (at [4], [75]-[76]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Carter [1999] NSWCCA 376
- R v Hawken (1986) 27 A Crim R 32
- R v Previtera (1997) 94 A Crim R 76
- R v Wilkinson (No 5) [2009 NSWSC 432
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54