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Supreme Court of Victoria |
![[AustLII]](173.1.gif)
Supreme Court of VictoriaLast Updated: 13 May 2011
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF SENTENCE:
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CASE MAY BE CITED AS:
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CRIMINAL LAW – Sentence – Manslaughter – Stabbing – Intoxication – Early offer of guilty plea – 10 years’ imprisonment with non-parole period of 7 years 6 months.
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Ms D Karamicov
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Solicitor for Public Prosecutions
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For the Accused
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Mr P Matthews
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Victorian Legal Aid, Bendigo
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1 David Frank Tate, on 4 July 2010, after a protracted drinking session, you
killed your friend, John Desmond Harris, by a single
stab wound with a steak
knife which you were using to eat your dinner. The next day you were charged
with murder. By a letter dated
26 November 2010 you offered to plead guilty to
manslaughter. That offer was accepted prior to the date scheduled for the
committal.
By an indictment filed in this Court on 16 March 2011 you were
charged with the crime of manslaughter and on 15 April 2011 you were
arraigned on that charge before me and pleaded guilty.
2 The maximum penalty
for the crime of manslaughter is 20 years’ imprisonment.
3 The
circumstances of the offence can be briefly stated. Mr Harris was
approximately 20 years older than you. You met him through
mutual friends and
for a time you shared a residence with him. You engaged in heavy drinking
sessions together. The two of you
fell out as a result of arguments over your
behaviour towards a 16 year old girl, who was a close friend of Mr Harris
and who he
considered to be like a daughter, and you ceased living with
him.
4 On Saturday 3 July 2010 you were staying with a woman named Michelle
Steinberg. Mr Harris came to see you. You were not there
when he arrived
. You were out with your three children who were with you over that weekend on
an access visit.
5 When you returned with your children that afternoon you
and Mr Harris discussed matters and apparently sorted out your differences.
The two of you then began drinking alcohol, and you both continued drinking from
then until the following Sunday evening, when the
fatal stabbing occurred. This
prolonged drinking session was interrupted only by periods when you each fell
asleep. At one point
during that session, the argument about the young woman
resumed and resulted in you threatening Mr Harris with a metal vacuum
cleaner
pipe.
6 At about 7.30 pm on Sunday 4 July 2010 Ms Steinberg
began preparing dinner. She prepared dinner for your three children and for
you
and Mr Harris. She handed you your dinner with a fork and a steak knife
and did the same for Mr Harris who was sitting next
to you.
7 No-one
witnessed what then occurred and, according to what you have told your own
family and a psychologist, you do not know what
happened. At some point you
stabbed Mr Harris in the chest with your steak knife, penetrating his
heart. Attempts by Ms Steinberg
and by ambulance officers to revive
Mr Harris were unsuccessful and he died at the scene.
8 On the plea your
counsel submitted that it was “fair to surmise” that the issue of
the 16 year old girl had arisen again
and was the “context” in which
the blow was struck. Both counsel told me the basis of the manslaughter plea
was that
you struck Mr Harris to the torso whilst holding the knife without
intending death or really serious injury. You were very intoxicated
at the
time, as was Mr Harris.
9 When interviewed by police you gave a
consistent account of all of the events surrounding the stabbing, but did not
describe or
refer to the stabbing itself.
10 You were born on 15 January
1977 and are now 34 years of age.
11 You have prior convictions for theft
offences in 1995. In 2008 you were dealt with without conviction for two
offences of shop
stealing. Those matters were adjourned on condition that you
attend and participate in the program at Odyssey House.
12 On the plea, the
prosecution tendered an opening and also tendered victim impact statements from
two sisters of the deceased, Belinda
Smith and Leanne Smith. The victim impact
statements were read by the prosecutor.
13 The deceased was described by his
sister Belinda Smith in the following terms:
“John was a man with great qualities. In life he was honest, loyal, gentle and loving just to name a few ... John was not an aggressive person and ... he would never have deliberately hurt anyone or anything.”
14 The effect of Mr Harris’s death on his family has been devastating. Belinda writes:
“John’s death is something which sits in the pit of my stomach day after day, and will for the rest of my time. John was my big brother and my best friend.”
Belinda also refers to the effect of her brother’s tragic death on her own children.
15 Leanne Smith writes:
“John trusted everyone, and could never see any bad in anyone, and it painfully kills me that he trusted the person who consequently came and took away his life, so brutally and undeservingly.”
She goes on:
“Since John’s death, a Christmas, a New Years, a wedding, my birthday and his birthday have all passed, and yet the pain does not get easier and the nightmares don’t go away.”
16 On the plea counsel on your behalf tendered a report by the consulting
forensic psychiatrist, Dr Danny Sullivan, dated 27 September
2010 and a
report from the consultant forensic psychologist, Ms Pamela Matthews, dated
10 April 2011. Ms Pamela Matthews also gave
evidence orally. Letters were
tendered from your father and your stepmother and your stepmother gave oral
evidence.
17 According to the history you gave to the psychiatrist and the
psychologist, which was confirmed by your stepmother, you had a very
difficult
and disturbed upbringing. You were the youngest of four boys and both of your
parents had significant alcohol problems.
One of your brothers was killed in a
road accident. Your parents separated when you were very young. Your father
was able to address
his alcohol problems. Your mother was not. She was
dependent upon alcohol for many years. She went through a number of
relationships
with men who were also alcoholics. When she died, it was you who
found her.
18 According to the accounts you have given of your childhood, you
were sexually abused between the ages of about 5 and 7. You had
significant
difficulties at school and were often suspended. You began abusing alcohol and
other substances from a very young age.
You lived for a time with your father
and stepmother while at primary school but then went back to live with your
mother during
high school.
19 After leaving school you worked in a variety of
occupations including fruit picking, at canneries and abattoirs, and as a
stacker
operator. As a result of your own significant alcohol problem you have
not worked in recent years.
20 You were married in 1993. You and your wife
separated in 2007. You have three children. They were aged 11, 7 and 4 at the
time
of this offence. They were present in the house when you killed
Mr Harris.
21 You have abused alcohol for many years and you have also
abused other substances including amphetamines, petrol sniffing, ecstasy,
and
other drugs. You have on a number of occasions attempted to address your
alcoholism. In 2007 you undertook two programs in
Benalla after an admission to
the Goulburn Valley Hospital. In 2007 while living with your father and
stepmother you regularly attended
Alcoholics Anonymous. In 2008 you undertook a
program called “One Step” in Wangaratta and for a short time in 2009
you
attended Odyssey House. You have received some psychological counselling
over the years but have never been under psychiatric treatment.
22 Dr Sullivan is of the opinion that you suffer from poly-substance
dependence. He expresses the opinion that there is no clear
evidence of
psychiatric illness such as schizophrenia. In his opinion there is no
indication of significant personality disorder
or marked cognitive impairment.
He expresses the opinion that your intoxication at the time of the offence would
have impaired your
judgment and impeded your ability to think calmly or clearly.
He observes that a critical feature of any potential disposition should
be
protracted drug and alcohol counselling, and suggests that upon your release you
ought to be closely monitored and tested. He
expresses the opinion that the
likelihood of you being involved in future similar events to that for which I am
sentencing you now
would be minimised by abstinence.
23 Ms Matthews
reaches similar conclusions to Dr Sullivan with one exception.
Ms Matthews is of the opinion that you are displaying
symptoms of
borderline personality disorder.
24 In discussing the offence with
Ms Matthews, you indicated that you could not recall what had occurred but
that you accepted that
you must have been responsible for the stabbing.
Ms Matthews said in her report that what you told her in this respect was
not an
admission but rather an attempt at reconstruction. She reported that you
expressed profound remorse to her and that you took full
responsibility for your
behaviour. She suggested that your inability to recall the stabbing raises the
potential diagnosis of dissociative
amnesia and/or acute stress disorder. In
relation to disposition she recommended in addition to drug and alcohol
intervention, a
violence intervention program.
25 In her oral evidence,
Ms Matthews said she had found you to be very remorseful, and said your
absence of memory was consistent
with a trauma reaction. She expressed the view
that you have reasonable prospects of rehabilitation as long as you abstain from
alcohol. She said you did now recognise the way alcohol had controlled your
life.
26 Your counsel submitted that this was not a case where the particular
legal principles which concern impaired mental functioning
apply.[1] He explained that in this case it is
your very unfortunate childhood, which has led to your severe dependency on
alcohol, which
in turn is the explanation for this tragic offence. I accept
this approach and proceed on that
basis.[2]
27 You have no prior convictions for
violence. The evidence before me does not indicate a prior history of violence.
There is no
evidence which would enable a conclusion that you had foreknowledge
that your intoxication could result in
violence.[3]
28 The factors put on your behalf
in mitigation are the following:
(1) The evidence establishes that you have displayed genuine significant remorse.
(2) You advised of your willingness to plead guilty to manslaughter before the committal and you did then plead guilty at the earliest opportunity.
(3) There are reasonable prospects for your rehabilitation.
(4) You are presently being held in protective custody because of concerns held by authorities in relation to your safety. I was told that these concerns arise out of this offence.
29 Your counsel conceded that denunciation and general deterrence must be
significant factors. He submitted that whilst specific
deterrence was relevant,
the evidence as to your remorse meant that that was not a factor which needed to
be prominent here. He
submitted that the intoxication at the time of the
offence (as a discrete factor) was neither an aggravating nor a mitigating
factor.
He submitted that the gravity of the offence was not at the high end
and that it was a spontaneous single act. He submitted that
this is a matter
where a long period of eligibility for parole would be appropriate.
30 On
behalf of the prosecution it was submitted that this was an offence towards the
higher end of gravity in relation to offences
of this kind. A weapon was used,
namely the steak knife. There was no evidence of any provocation, and the
victim was at the time
very vulnerable due to his state of intoxication. The
killing took place in the home of a friend and in front of three young children.
31 It was submitted on behalf of the prosecution that specific deterrence is
especially important, given your history of substance
abuse. It was submitted
that your prospects of rehabilitation are not promising as they are entirely
contingent upon your ability
to overcome your alcohol dependence. The early
guilty plea was to be assessed in the face of what was a strong prosecution case
on manslaughter.
32 In my view this is a very serious instance of unlawful
and dangerous act manslaughter. A knife was used on a vulnerable victim
in the
home of an entirely innocent female friend and in front of three young children.
There is no evidence of any aggression by
the victim towards you or of any
conduct by him which could explain your brutal stabbing of him.
33 I accept
Ms Matthews assessment of the situation in relation to rehabilitation.
There are reasonable prospects of your rehabilitation
but only if you are able
to abstain from alcohol. It is impossible to predict whether you will be able
to do so or not.
34 In my view specific deterrence remains an important
factor here and general deterrence and denunciation are most
important.
35 Otherwise, I accept the matters put in
mitigation.
36 Counsel for the prosecution submitted that a sentence in the
range of 8 to 10 years’ imprisonment with a non-parole period
of 6 to 8
years’ imprisonment was appropriate. On your behalf it was submitted that
the range is lower than was put by the
prosecution.
37 I have had regard to
current sentencing practices, and to what were said by the prosecution to be
comparable cases.[4] I have also had regard to
relevant authority and other manslaughter
sentences.[5]
38 The offence for which you
must be sentenced is manslaughter and not murder. You did not intend to kill or
to inflict really serious
injury. You are remorseful and have pleaded guilty.
You had a sad and disturbed childhood and are severely dependent on alcohol.
You have made attempts to address your alcoholism. The evidence does not reveal
a violent history.
39 On the other hand, this is a very serious manslaughter,
committed using a knife in the home of an innocent friend and in front
of three
young children. You killed an intoxicated and vulnerable person who offered no
provocation and who had exhibited no aggression
towards you.
40 I do not
consider that a long period of eligibility for parole is appropriate here, given
the fact that the psychiatric and psychological
reports recommend abstinence and
testing, and given the unsuccessful attempts you have made in the past to
address your substance
abuse.
41 If you had not pleaded guilty I would have
sentenced you to 12 years’ imprisonment with a non-parole period of 10
years.
42 For the offence of manslaughter I sentence you to 10 years’
imprisonment and I fix a non-parole period of 7 years and 6
months.
43 The
pre-sentence detention is 313 days.
[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[2] Ms Matthews’ report indicated that the offender met six of the nine criteria for borderline personality disorder in DSM-IV (five being sufficient for the diagnosis), and also observed that these diagnostic criteria did not cover the full constellation of the offender’s presentation. Borderline personality disorder is capable of constituting the kind of condition dealt with in Verdins: see R v Howell [2007] VSCA 119; (2007) 16 VR 349 at 357. In this particular case the approach taken by counsel for the offender was appropriate. In any event having taken into account the circumstances of the offender’s unfortunate childhood leading, as they had, to the severe dependency on alcohol, and the role that that intoxication played in this offence, there would be little or no further ambit for amelioration of moral culpability, or general or specific deterrence by applying Verdins’ principles. There is no evidence that the offender’s psychological condition means that imprisonment will weigh more heavily on him or will deteriorate because of his imprisonment.
[3] As to which, see R v Martin[2007] VSCA 291; (2007) 20 VR 14.
[4] I have considered the published sentencing statistics (Sentencing Snapshots No 85 and No. 110) and four sentences referred to by the prosecution: DPP v Samson-Rimoni [2010] VSC 111 (9/5), R v Gould [2007] VSC 419 (7½/5), DPP v McGill [2008] VSC 499 (7/6) and R v GM [2006] VSC 473 (9½/6). All of these four cases concerned stabbings but the circumstances otherwise vary significantly. Samson-Rimoni and GM concerned youthful offenders. With the exception of Samson-Rimoni, the offenders in the four cases had prior criminal histories involving violence. A significant distinction between the four sentences referred to and this case is the circumstances of the stabbing. In all of the four cases there was some level of violence and aggression emanating from the deceased, or from people with him, towards the offender. There is no suggestion of that here. Gould may be closest to these facts. It was also a case where both the offender and the deceased were very intoxicated. But the deceased there was the first to become aggressive and violent and, after being removed from the scene, sought out the offender to continue his confrontation with him. This, and the fact that the stab wound in Gould’s case was to the shoulder, led the sentencing judge to characterise Gould’s manslaughter as being at the “lower end of manslaughter cases involving the use of a weapon”. The judge went on to observe:
“It is to be contrasted with cases where wounds to the central part of the chest or even deep wounds to the abdomen or back are inflicted”.
This is one of those contrasting cases.
The NSW manslaughter sentences are R v Jacqueline Barbara Doolan [2010] NSWSC 615; R v Harris [2007] NSWSC 1417; R v Terry John Hamshere [2005] NSWSC 1319; R v Jeffrey Dunn [2005] NSWSC 1231; R v Craig Brookes Dally [2000] NSWCCA 162; and R v Anne Yvonne Horton [1999] NSWSC 983.
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