By Paul Gregoire and Ugur Nedim
On 10 December 2006, Theodore Efthimiadis was standing on a platform at Central Station waiting for a train to the Central Coast. He looked to his side and noticed an old acquaintance he’d met in prison 20 years earlier. That person was later referred to as ‘Mr X’ during Mr Efthimiadis’ jury trial.
42-year-old Efthimiadis informed Mr X he was on his way to see his partner, who was staying at her uncle’s place. His partner, who was in her late teens, had taken off from their residence in Queensland, as the pair had been arguing quite a bit.
Efthimiadis admitted he had being doing a lot of drugs, but his partner had taken their 2-year-old son away from him. Efthimiadis should have known better than to be in NSW, as there was an outstanding warrant in NSW for his arrest, due to a breach of his parole conditions.
According to Efthimiadis, it was at this point that Mr X suggested he should pay someone to “do away” with his partner. Efthimiadis said that he only went along with Mr X’s suggestion, as the man had a reputation for violence, and at no time had he actually intended for his partner to be murdered.
Unbeknownst to Efthimiadis, Mr X was a police informant. On the following day, Mr X informed the police that he knew a man who wanted to hire someone to kill his partner. A NSW police undercover operative then began calling Efthimiadis to organise the hit.
Mr Efthimiadis travelled back down from Queensland on 23 December 2006. He met the undercover officer at Wyong station and they drove to Wyee station in the police officer’s car. At first, Efthimiadis suggested that he’d like an accident to occur, so his partner would be wheelchair-bound.
But the undercover officer questioned this suggestion, asking, “So you want her put in a cemetery or you want her put in hospital?” Efthimiadis replied, “A cemetery.”
Efthimiadis was arrested and charged that day with solicit to murder. He was refused bail.
The findings of the sentencing judge
NSW District Court Judge O’Connor remarked that nothing in the recorded conversations between Efthimiadis and the undercover operative suggested that the defendant was reluctant to meet. The judge further noted that Efthimiadis appeared “relaxed” in the in-car video footage, when he was arranging the hit with someone he considered to be “a professional killer.”
His Honour found that there was nothing about Efthimiadis’ mental state that could reduce his culpability, and that his actions were solely motivated by his desire to secure custody of his son.
The judge also found that the defendant’s culpability wasn’t diminished by the undercover officer’s “persistence,” and this was demonstrated by his desire to create an alibi by wanting the killing to take place whilst he was in Queensland.
His Honour assessed the objective seriousness of the offence at withing the mid-range of an offence of that nature. He found that the offender’s criminal history deprived him of any leniency indeed, Efthimiadis had spent 12 of the previous 20 years in custody for various offences.
The sentencing hearing
The offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period (SNPP) of 10 years.
An SNPP is a reference point for the sentencing court when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
The judge sentenced him to 13 years and 4 months prison, with a non-parole period of 10 years.
Granting an extension of time
Mr Efthimiadis appealed the sentence to the NSW Criminal Court of Appeal (NSWCCA) in 2015. It was his second attempt at an appeal.
In his earlier attempt on 14 November 2013, the NSWCCA refused to grant Efthimiadis an extension of time to appeal his case. On that occasion, Justice Johnson found that even if the appeal was allowed, the court would have reached the conclusion that no lesser sentence was appropriate.
However, on 24 September 2015, the court found that the previous refusal did not “create a jurisdictional bar to any further proceedings.” And since there was new evidence, including Efthimiadis’ progress in custody, the extension was granted on the basis that there were prospects of success.
The Muldrock error
The sole ground of appeal was that the sentencing judge had made an error when applying the SNPP to Efthimiadis’ sentence. This was in light of the principles set down in the 2011 High Court case Muldrock v The Queen, known as the ‘Muldrock error’.
In 2011, the High Court found that a sentencing judge is in error where they approach the SNPP as the standard sentence for a mid-range offence, and then look for mitigating and aggravating factors as to why they should not apply it.
During Mr Efthimiadis’ first appeal, the NSWCCA conceded that a Muldrock error had indeed occurred, as the sentencing judge found that the SNPP should be applied because the offence was considered to be in the mid-range of objective seriousness and there were no “special circumstances” to vary the sentence.
During his second appeal, the NSWCCA again found that a Muldrock error had occurred. It was therefore the duty of the court to impose a different sentence, unless “no other different sentence [should] be passed.”
The NSWCCA’s findings
Justice Price noted that Efthimiadis’ lawyers had criticised the sentencing judge’s appraisal of the offence as being in the mid-range, as the judge had taken into account his intention to kill and his communication of this intent as aggravating factor; when they were already ingredients of the offence itself.
His Honour found that while this was true, the degree of planning and the length of time the intention had been held were relevant factors to be taken into account. It was also relevant that Efthimiadis had committed the offence whilst on parole, and had shown no remorse.
Although the court had heard that Efthimiadis had made some positive progress in regards to undertaking a drug rehabilitation program whilst in custody, he had returned to using drugs on every other occasion he’d been released from prison.
His Honour found that it was therefore difficult for the court to “make any positive findings with respect to the risk of re-offending” and his “prospects of rehabilitation”.
A deterrence against domestic violence
His Honour agreed that the offence was within the mid-range, as the degree of planning was an aggravating factor and the offender was motivated by the “selfish desire” to gain custody of his son.
“It is difficult to conceive a more serious offence of a domestic nature other than murder itself,” he explained.
Justice Price noted that general deterrence was a significant factor in this case. “All too often partners in a domestic relationship resort to violence,” he outlined, adding that the community can’t tolerate this type of conduct.
The fact that Efthimiadis was considering having his partner killed to secure the custody of his son “needs to be expressed in the sentence to deter persons who might be like-minded to commit such a crime,” His Honour continued.
Taking into account the maximum sentence and the SNPP, along with “the objective circumstances of the offence and the subjective features of the offender,” His Honour concluded that “no lesser sentence should have been passed.”
The appeal was therefore dismissed.