Director of Public Prosecutions v Manuel

[2021] VSC 568

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0046

DIRECTOR OF PUBLIC PROSECUTIONS

v 

ALEXANDER PETERA HIKOWAI MANUEL

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021
DATE OF SENTENCE:	5 November 2021
CASE MAY BE CITED AS:	DPP v Manuel
MEDIUM NEUTRAL CITATION:	[2021] VSC 568

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CRIMINAL LAW – Sentence – Manslaughter – Theft – Offender started fight with deceased – Single stab wound inflicted in course of fight – Offender stole deceased’s car – Early plea of guilty – Mild intellectual disability – Some Verdins moderation – Long criminal history – Guarded prospects of rehabilitation – Prospects of deportation – Sentenced to a total effective sentence of 7 years and 9 months’ imprisonment with a non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Rochford QC Mr P Pickering	Ms A Hogan, Solicitor for Public Prosecutions
For Mr Manuel	Mr J Kelly SC Ms C Lynch	Leanne Warren & Associates

HER HONOUR:

1. In the early hours of Tuesday 18 June 2019, you killed Ricky Thompson by stabbing him in the head with a knife, during an argument which you had started.  After you stabbed him, you stole his car.   

1. On the Monday evening, you had been at a friend’s apartment.  Whilst there, you took a small, sharp knife from the kitchen knife block, and used it to cut out a graffiti tag that you had drawn on a sketch pad. The knife was about 15cm long, including the handle.

1. In the early hours of the Tuesday morning, you left the apartment with Kristy Avdulla, whom you had just met that night.  You took the kitchen knife with you.  You and Ms Avdulla drove to the home of two other friends, and picked them up.  The four of you then drove to the Chelsea Heights Hotel.  You arrived at the hotel at about 2:15am.

1. Ricky Thompson arrived at the hotel about half an hour later, driving his silver BMW sedan.  He parked his car two spaces away from Ms Avdulla’s car.  Mr Thompson walked into the hotel gaming area.

1. You had not met Mr Thompson before that night, although you knew some of the same people.  Over the next half hour or so, you spoke with one of your mutual acquaintances, Brett Young, and with Mr Thompson.  You were described as being very “in your face” with both of them.

1. A short time later, while Mr Thompson and Mr Young were playing the pokies, you came up behind them and asked them for a lift.  Both replied that they couldn’t give you a lift.  You said, “So what, I’m skunk?”  Mr Thompson replied “No-one said that”.  You repeated “So what, I’m skunk?”

1. At this point, Ms Avdulla came over to you and said “Let’s go”.  The two of you walked out the front door of the hotel together, towards the carpark.

1. Around the same time, Mr Thompson walked out of the hotel, towards his car.  He went to the passenger side of his car to retrieve a phone charger.  You went to the driver’s side and got into his car.  Mr Thompson shut the passenger side door and went around to the driver’s side, where you were sitting with the door open.

1. Mr Thompson said to you “Get out of the car” and “Get the fuck out of my car”.  You replied “No, fuck off”.  You continued to argue for about a minute.  You demanded that Mr Thompson give you the keys to his car.

1. You got out of the driver’s seat and continued to argue with Mr Thompson.  Your attitude toward Mr Thompson was very aggressive and hostile.  Mr Thompson eventually threw his car keys toward the driver’s side front wheel.  They landed on the ground near the wheel.

1. You threw a punch at Mr Thompson, but did not seem to connect.  You swung another punch, hitting Mr Thompson in the right arm.  Mr Thompson threw a couple of punches back, but did not connect.  Mr Thompson then crouched over, as though he was going to make a rugby tackle.

1. You reached into the back of your pants and grabbed something in your right hand. You then swung a round-house punch with your right hand, and connected with Mr Thompson’s head.  Mr Thompson immediately fell to the ground, with blood pouring from his head.

1. You yelled “Where the fuck are the keys”.  Ms Avdulla said they were near the front tyre.  You found the keys and got into the driver’s seat of Mr Thompson’s car, saying “Fuckin’ move him”.  You then shouted “I can’t start the fucking car”.  Ms Avdulla showed you how to start the car.  You then reversed the car, passing within two to three metres of Mr Thompson’s body, which was lying on the ground, and drove off.

1. Ms Avdulla and another friend followed you in their car.  You were driving at high speed, and without lights, on the Peninsula Freeway.  They eventually lost sight of you.

1. Meanwhile, a witness ran to the hotel security guard, and yelled for him to call an ambulance.  Police and ambulance soon arrived.  Mr Thompson was taken to the Alfred Hospital.  His injuries were assessed as being non-survivable, and he was declared brain dead at 6:50pm that evening.

1. Mr Thompson had suffered a fatal stab wound to the left side of his head, which extended through the left temporal lobe of his brain.

1. Ms Avdulla contacted police later on the morning of the 18^th, and identified you as the person who had stabbed Mr Thompson.  Mr Thompson’s car was found by police later that day in Frankston.  You were eventually arrested on 4 July 2019.

1. You were initially charged with murder and aggravated carjacking, and have been in custody since then.  As a result of negotiations with the prosecution, you pleaded guilty to manslaughter and theft, after the initial charges were dropped.[1]

   [1]Because your offending occurred in 2019, the maximum penalties for these two particular offences are 20 years’ imprisonment for manslaughter, and 10 years’ imprisonment for theft.

1. I turn to consider the seriousness of your offending.  

1. Your behaviour both inside and outside the hotel was aggressive and verbally abusive.  You had no right to demand Mr Thompson’s car, far less to start a physical fight when he refused to hand it over to you.  It is hardly surprising that Mr Thompson tried, unsuccessfully, to defend himself, after you threw the first couple of punches.   His defensive actions in no way justified you pulling a knife and stabbing him in the head.  He was unarmed, and there was nothing stopping you from running away, if you thought he was about to tackle you.

1. I accept that you may have been carrying the knife to use in connection with your graffiti activities.  But the fact remains that you were carrying a knife in a public place, and readily resorted to using it, with fatal consequences.  

1. After you stabbed Mr Thompson, you made no attempt to assist him, or call for help.  On the contrary, you stole his car and drove away, leaving him seriously injured on the ground.   

1. You did not steal the car in a panic, in order to flee the scene of the stabbing.  The entire incident only occurred because you wanted to take Mr Thompson’s car against his wishes.

1. Not only did you take Mr Thompson’s life, your actions have had a terrible effect on his family.  In their victim impact statements, members of Mr Thompson’s family have described the pain, anger and heartbreak that your actions have caused them.  They went through an agonising period whilst Mr Thompson was in hospital, not knowing whether or not he would survive, before losing their much-loved son, brother, father and uncle.  Mr Thompson was 44 when he died.  His family miss having him at family gatherings and special occasions, to laugh and joke and create new memories with.  His daughter is devastated that her father will not be there to walk her down the aisle at her wedding.

1. There is nothing this court can say or do that will bring back Mr Thompson, or heal the grief and pain caused by your actions.  The sentence I am going to impose is not a reflection of the worth or value of Mr Thompson’s life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.

1. I turn to consider your personal circumstances.  You were born in New Zealand in September 1991, and are now 30 years old.  You were 27 at the time of the offending.

1. Your parents separated when you were two, and you moved to Australia with your mother.  As a young child, you spent several school holidays visiting your father and grandparents in New Zealand, but have had little contact with your father since you were 17.

1. After arriving in Australia, your mother began a relationship with a man to whom you looked up to as a father, but the relationship ended when you were about 10.

1. Your mother’s work as a nurse required her to work early shifts.  Between the ages of about 7 and 9, you were cared for before school at a neighbour’s house.  There, you were the victim of sustained indecent assaults committed by your male neighbour, who was also sexually abusing his own son at the same time.  You did not disclose the offending until you were in secondary school.  The perpetrator was not prosecuted until 2015, after his son also disclosed that he had been a victim.

1. You were noted in primary school as having learning deficits, and were provided with a support person in primary and secondary school.

1. By the time you started secondary school, your mother had re-partnered with a violent alcoholic.  It was a very unhappy home, in which you and your mother were the victims of frequent domestic violence.  By the time you were in your early teens, you had run away from home, left school, and were living on the streets.  You quickly formed anti-social friendships, and started using various illegal drugs.

1. You returned home briefly when you were 15, after your mother became pregnant with your sister.  You left home again, after a physical altercation in which you tried to stop your stepfather assaulting your mother.

1. Between the ages of about 17 and 19, you enjoyed a period of relative stability.  You were living at home with your mother and sisters, and working for a bedding company.  You also began what has been an on-again off-again relationship with your current partner.

1. However, after moving out of home, increasing drug usage led to you losing your job, and then your flat.  You appeared before the Magistrates’ Court for the first time in November 2010.  By 2011, you had been sentenced to six months in youth detention. 

1. Your daughter was born in 2013, which was a positive event in your life.  However, your continued struggles with drug addiction worsened, after you became addicted to “ice”.  By 2014, you had been remanded in adult custody, for what was to be the first of several periods of imprisonment.

1. You have a very extensive criminal history, which consists primarily of numerous property, drug and driving offences, as well as unlawful possession of prohibited or controlled weapons.  You also have multiple convictions for breaches of community based orders, a suspended sentence and bail, demonstrating your lack of compliance with your legal obligations. 

1. You have convictions for violence, in the form of offences of: reckless conduct endangering serious injury, assaults, and threat to inflict serious injury; but I have not been provided with any information about the circumstances surrounding those offences.  However, I accept that the current offending is your most serious to date.

1. In the months before this offending, you were separated from your partner, and living on the streets.  You were also dealing with grief, after three of your friends had died, and your drug usage had increased.

1. For the purposes of sentencing, you were assessed by Ms Alison Mynard, clinical psychologist.  In her report, dated 27 August 2021, she described you as having a mild intellectual disability, with a full scale IQ of 67.  

1. Ms Mynard reported that your low cognitive functioning had an impact on your offending in the following ways:

(a)   By reducing your ability to use assertive verbal communication skills;

(b)  By causing you to misinterpret visual cues;

(c)   By making it difficult for you to use reasoning skills (particularly when you are feeling paranoid);

(d)  By inhibiting your self-awareness and self-monitoring skills, which makes you more impulsive; and

(e)   By making you more likely to be overloaded and overwhelmed in conflictual situations, which impacts on your erratic and violent behaviour.

1. I accept that those specific cognitive deficits contributed to this offending, thereby reducing your moral culpability.  They also lead to some moderation of the need for general and specific deterrence.

1. However, your inability to control your responses to conflict or frustrating circumstances, without resorting to violence, also leads to an increased need for community protection. 

1. Given your extensive criminal history, your long-term poly-substance addiction, and your intellectual deficits, your counsel conceded that your prospects of rehabilitation are guarded. 

1. According to Ms Mynard, after you are released into the community, you will be eligible for further disability support, to assist you to navigate your day-to-day activities, and improve your functioning.  This is the first time you have been formally diagnosed with an intellectual disability, and it may be that access to specialist disability support services will improve your rehabilitation prospects.

1. You have had numerous opportunities to address your substance addiction, through the treatment and counselling that has been ordered by various courts over many years.  Unless you do address your addiction, and the issues that underlie it, you are likely to continue the cycle of offending that has been the pattern of your life to date.

1. Whilst on remand, your drug use has been in remission.  You have started to attend some groups and counselling, and have been working within the prison.  These are all promising starts to what will be a long and challenging journey towards rehabilitation.

1. You are fortunate to still enjoy the support of your partner, your mother and sisters, and to have a close relationship with your daughter, who is now 8.

1. There are several other matters that are relevant to sentencing you. 

1. Around the time of your committal, you first offered to plead guilty to manslaughter and theft.  You formally pleaded guilty to those charges in this court on 1 July 2021, after the prosecution dropped the more serious charges.  I treat this as an early plea.

1. You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value, especially during the COVID-19 pandemic, when jury trials have been delayed.  Your plea has facilitated the course of justice.  The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, and the family and friends of Mr Thompson, have been spared what would have been a traumatic trial for all concerned.

1. Apart from any remorse that is inherent in your plea, there is little evidence of genuine remorse.  For the purpose of the plea hearing, you provided a letter to the court, addressed to Mr Thompson’s family, in which you expressed your regret at your actions.  It has become all too common in this court for such letters to be prepared at the last minute, simply to support a plea in mitigation.  Unless they are accompanied by other evidence of remorse, it is difficult for a judge to assess their genuineness, or give them much weight.

1. Much of your time on remand has been spent under the harsher than usual prison conditions that have been in place since the COVID-19 pandemic struck.  You have found the physical separation from your partner and daughter particularly difficult.

1. Despite having lived almost your entire life in this country, you are not an Australian citizen.  It is common ground that, given the seriousness of this offending, upon the completion of your sentence it is likely that you will be deported and returned to New Zealand.  I accept that the prospect of deportation, and separation from the only family you really know, will increase the hardship of your sentence.

1. Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 7 years and 6 months.  I will treat that as the base sentence.

1. For the offence of theft, I sentence you to 9 months’ imprisonment.  Although you stole Mr Thompson’s car immediately after you stabbed him, there still needs to be some accumulation of the sentences, to reflect the separate criminality involved in the two offences.  I order that 3 months of the sentence for theft be accumulated on the base sentence.

1. This makes a total effective sentence of 7 years and 9 months’ imprisonment.  I fix a period of 5 years as the period you must serve before you become eligible for parole.

1. Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 7 years.

1. Further, I declare that the period to be reckoned as already served under this sentence is 825 days, not including today’s date.[2]  I direct that there be noted in the records of the court the fact that such a declaration was made and its details.

   [2]Although you have been in custody since 4 July 2019, the total number of days of pre-sentence detention for these offences must be reduced by 30 days, due to a sentence imposed in the Magistrates’ Court on 6 November 2020 for an unrelated offence.

1. I have also made the disposal order sought by the prosecution.