Director of Public Prosecutions v Mitchell (a pseudonym)
[2017] VSC 315
•28 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0053
| THE DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| TOM MITCHELL (A PSEUDONYM)[1] | |
[1]In accordance with s 534 of the Children, Youth and Families Act 2005, pseudonyms have been used to describe the child offender and all other children mentioned in this case.
---
JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Geelong and Melbourne |
DATE OF HEARING: | 6 and 19 June 2017 |
DATE OF SENTENCE: | 28 June 2017 |
CASE MAY BE CITED AS: | DPP v Mitchell (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 315 |
---
CRIMINAL LAW – Sentence – Manslaughter – Single stab wound to the chest – Victim unarmed – Victim trying to break up fight between two groups of youths at party – Offender 17 at time of offence – Prior convictions – Early plea – Remorse – Hardship of time spent on remand in Grevillea Unit at Barwon Prison – Some prospects of rehabilitation – Sentenced to 8 years’ imprisonment with a non-parole period of 4 years 9 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Lewis | Solicitor for Public Prosecutions |
| For Mr Mitchell | Mr S Gardner (6/6/17) Mr S Norton (19/6/17) | Stary Norton Halphen |
HER HONOUR:
You have pleaded guilty to the manslaughter of Nathan Gent on Friday, 17 June 2016.
These events took place at a 15th birthday party, which was held at a house in Norlane, a suburb of Geelong. You had never met Justin, the boy whose birthday party it was. The party had been advertised widely on Facebook, and a very large group of guests was expected.
That afternoon, you were at home in Melbourne, when you were contacted by some friends from Corio who invited you to the party. You caught public transport to Corio, where you met up with them.
Mr Gent was a friend of Justin’s parents. He had spent most of that day helping them prepare for the party. He helped set up lights and tarpaulins in the backyard. He also helped with food preparation, and had volunteered to serve food during the party.
Guests began to arrive around 7:00 pm. Around 8:00 pm, a family friend who was a professional musician started performing.
The party was held in the backyard. Mr Gent was inside, preparing food, when you and four of your friends arrived around 8:30 pm. Around 9:20 pm, you began approaching guests and asking them if they were looking at you. That led to one of the guests, a boy called Craig, approaching you; he told you that if you wanted a fight you should go elsewhere. You pushed Craig to the ground. When Craig’s older brother, Julian, approached you, you punched him in the mouth, causing him to fall to the ground as well. Julian’s friends restrained him, as he yelled racist abuse at you.
Adults at the party became aware of the incident, and told guests that if anyone was going to fight they would have to leave the party. You yelled out that you would fight every one of them out the front “one by one”. You walked to the front of the property, accompanied by some of your friends. Other guests followed you.
Two groups of youths faced off against each other, out the front. You and your friends stood on the road, facing the house. The other group stood nearer to the house, facing your group. Your group was significantly outnumbered by the other group. Some of your group were armed with knives, and some of the other group were holding fence palings and bottles as weapons. The two groups were yelling aggressively at each other. Tensions were heightened. One of your friends, Philip, was punched in the back of the head by someone. Another boy, Charles, was hit with a fence paling by someone from the other group. You had taken your pocket knife out of your pocket, and were standing with the opened knife in your right hand.
Mr Gent came outside to try to calm the situation and stop the fight. As he came from the house, he approached from the direction of the other group. Mr Gent was unarmed, and was not behaving aggressively. You moved towards Mr Gent, and stabbed him once in the chest with the knife, in a “round-house” movement.
Mr Gent immediately staggered backwards and collapsed on the footpath, a short distance from where he had been stabbed. He was carried into the house and placed on the lounge floor, where first aid was administered. Paramedics attended, but were unable to save him. The cause of death was a single stab wound to the chest, which had punctured his heart.
After the stabbing, you initially threatened other guests, before you and your group were chased by other guests and ran down the road. At one stage, you were struck with a fence paling. Before you fled the scene, you used a cloth to wipe your knife, before passing it to one of your friends. You later made your way home to Melbourne.
Around the middle of the following day, you were arrested and interviewed by police. You gave a mostly accurate account of what had happened at the party.
The maximum penalty for manslaughter is 20 years’ imprisonment. However, the circumstances which may give rise to a conviction for manslaughter are varied, and the range of degrees of culpability very wide. It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.
As far as the offending is concerned, you took a dangerous weapon to the party. Although you may not have gone there with a specific intention of using the knife, you and your friends were clearly willing to engage in a fight if the opportunity arose. You started the physical violence, pushing or hitting two boys in the backyard. I accept that Julian’s extremely offensive racist abuse angered you greatly (particularly given that you have suffered from racism for much of your life). But, instead of simply leaving the party, you challenged people to come out the front and fight you. The other group – which seems to have consisted mainly of Maori or Islander youths from the Werribee area – appears to have been as keen to fight as your group was. Once out the front, you and your friends found yourselves outnumbered by the other group, and two of your friends had been assaulted. Threats were being exchanged on both sides. Further violence was clearly imminent.
Your counsel invited me to find that because Mr Gent came from the same direction as the other group, you may have been confused as to whether he was a member of that group. That is not what you told police – you told them that Mr Gent was someone who had got between you and the people you wanted to fight. But, on either version, Mr Gent was unarmed and did not say or do anything aggressive as you took several steps across the road towards him, and stabbed him once to a very vulnerable part of his body.
You told police that you were trying to hurt Mr Gent, not to kill him, and your plea of guilty to manslaughter (rather than murder) reflects that fact.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.
Nathan Gent was 27 years old at the time of his death. He was the eldest son of Anne Gent and Robert Pronk. When he was six months old, his parents separated, and he had no further contact with his father until he was about 11. Mr Gent had three siblings from his mother’s subsequent relationships: Danielle, Ashlee and Matthew.
When Mr Gent was 19, he began a relationship with Linda Gates, with whom he had a daughter. After their relationship broke down, Ms Gates and their young daughter returned to her interstate home.
Mr Gent’s family miss him greatly, in many different ways. Their lives have been a rollercoaster of emotions since his sudden and violent death. To his siblings, he was a generous, loving and protective older brother, who would go out of his way to help them. That he had spent the day in question helping friends prepare for their son’s birthday party was typical of his generous nature.
Some of Mr Gent’s loved ones are also suffering because his unexpected death has robbed them of the opportunity to mend their relationships with him.
I turn to consider your personal circumstances. You were born in September 1998, in Liberia, Africa, a country stricken by civil war. Your early childhood was spent in a refugee camp, until you came to Australia when you were 6 years old. Your childhood in Africa was marked by trauma, violence and extreme poverty.
Your father was mostly absent from your childhood. Your mother has largely raised you and your four siblings on her own.
You soon adjusted to life in Sydney, after the initial culture shock. Although you enjoyed primary school, your home life was troubled. Your older half-brother was physically violent and severely abusive towards you; he was later imprisoned.
Things went downhill after you changed schools in grade 6. There, you were often racially abused and assaulted, which left you feeling even more vulnerable. There was further dislocation in your primary school years, when your family moved to Adelaide and then back to Sydney. By year 8, you were missing school and shoplifting, trying to gain approval from your peers.
Your behaviour deteriorated further after your father’s sudden death in Liberia, when you were about 16. You started smoking cannabis, and hanging out with other marginalised and disaffected youths (including some cousins who had spent time in custody). You felt a sense of belonging with that peer group, whose members engaged in violent criminal conduct, drug use and trafficking.
Your mother moved the family from Sydney to Geelong, to try to get you away from your anti-social peers. Unfortunately, in Corio you again fell in with the wrong crowd – a group of youths who were engaged in car thefts and reckless driving. You started using ice and cocaine on a regular basis.
Again, your mother tried to help you, this time by moving to Melbourne. But your involvement with drugs increased further. You were expelled from school about two weeks before this offence, following allegations that you were selling drugs.
This is not your first interaction with the criminal justice system. In December 2015, you were found guilty in the Parramatta Children’s Court of six charges, which covered offending on a number of occasions between May and October 2015. Because you failed to attend court on that occasion, a warrant was issued for your arrest; you have yet to be sentenced for those matters.
In December 2015 and January 2016, you appeared in the Geelong Children’s Court. No conviction was recorded on either occasion. On the first occasion, you were placed on nine months’ probation. The second time, you were placed on an eight month youth supervision order. When you killed Mr Gent, you were still subject to both of those orders, as well as being on bail for some charges that are yet to be dealt with; that is an aggravating feature of your offending.
The vast majority of your earlier charges in NSW and Victoria related to minor theft or dishonesty offences. However, two of the charges did involve threats of violence. In both of those instances, when spoken to by police for perfectly legitimate reasons, you resorted to brandishing a weapon – in one case a baton, in the other case a pair of scissors. You persisted with threatening violence with the weapons, even though the police were trying to diffuse the situation. In one case, you were daring the police to Taser or shoot you.
After you were arrested in relation to Mr Gent’s death, you decided you needed to earn the respect of other detained youths by engaging in the same sort of intimidating and aggressive behaviour in which you had previously engaged in the community. Until relatively recently, you have been involved in regular verbal and physical confrontations with other detainees and custodial staff. You have pending charges for assault, affray and recklessly causing injury, arising out of such incidents.
From your arrest on 18 June 2016 until mid-November 2016, you were held at the Parkville Youth Justice Precinct. On 19 November, you and a number of other youths were transferred to the Grevillea unit at Barwon Prison. You remained in Grevillea for 174 days, until you were transferred back to Parkville in mid-May of this year.
In his recent decision in Certain Children v Minister for Families and Children & Ors (No 2),[2] John Dixon J accepted the expert evidence that the Grevillea unit was one of the most austere units in the adult prison system, designed and utilised to manage many of the most challenging, maximum security, adult prisoners. Children detained there were frequently kept in lockdown for up to 23 hours a day, and handcuffed during their limited periods of release from cells. Opportunities for education, stimulation, and time outdoors were severely curtailed. John Dixon J accepted that children would inevitably experience the unit as traumatising, unduly restrictive, onerous and unstimulating. His Honour described the Grevillea unit as a demoralising and dehumanising environment for the children detained there.
[2][2017] VSC 251.
You experienced serious mental difficulties coping with the extreme isolation and harsh conditions in Grevillea. You attempted suicide about a dozen times. You were placed on constant suicide watch while you were there.
It is well-established that if a prisoner has been held in conditions of undue hardship, that may operate so as to reduce the sentence that would otherwise be imposed. I have moderated your sentence to take into account that you have spent almost six months of your relatively short life in the unduly harsh conditions that prevailed in the Grevillea unit.
Since your return to Parkville, you have begun to mature, to change your attitude and identity. Instead of feeling hopeless and angry about your troubled life, you have started to look for positive reasons for living. You are currently finishing year 12. Your teachers describe you as respectful, self-motivated and outstanding to teach. That is an encouraging start, but it is a relatively recent development. I have no doubt that there will be many challenges ahead, as you struggle to maintain that more mature approach in custody. The challenges will be even greater if you are immediately placed back into an adult prison, instead of remaining in youth detention.
You were initially charged with murder. The committal hearing took place on 27 and 28 March 2017, at which issues of intent and self-defence were explored. The following day, you offered to plead guilty to the lesser charge of manslaughter. That offer was subsequently accepted. I treat this as an early plea.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. The witnesses to these events – most of whom were children – and the family and friends of Mr Gent, have been spared what would have been a very traumatic trial.
There is also evidence that you are remorseful, and truly regret killing Mr Gent. However, you have not taken full responsibility for all your actions; for example, you still persist with the false claim that somebody handed you the knife in the midst of the fight, instead of acknowledging that you brought it with you to the party.
At the time of the offending, you were 17. You are now 18 years old.
The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. However, those principles are not immutable; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending.
In sentencing you, I am mindful of the fact that manslaughter is a serious offence, involving the unintentional taking of another person’s life.
Although your formal criminal history may not be particularly extensive, this was not an unexpected or isolated act of violence on your part.
You do have prospects of rehabilitation. You are of above average intelligence. You are fortunate that your mother, as well as your younger siblings, are supportive of you and have visited you regularly in custody; that family support will continue to be important to you in the coming years. Your early childhood trauma and deprivation, and the violence and racism of your adolescence, have all contributed to the development of the angry, immature and disengaged youth who committed this offence. But there is evidence that you are starting to grow up, and make smarter choices for yourself. It is in the community’s interests, as well as your interests, that you be supported with appropriate education, programs and supervision, both in custody and on parole, to enable you to continue on the path of rehabilitation.
However, general deterrence still has an important role to play in a case such as this. There is a clear need to deter others from carrying dangerous weapons, and using them when conflict arises (particularly where, as here, the conflict has to some extent been sought out). This type of conduct needs to be denounced and justly punished.
For the manslaughter of Nathan Gent, I sentence you to 8 years’ imprisonment.
I fix a period of 4 years and 9 months before you become eligible for parole.
I declare that, but for your plea of guilty, I would have sentenced you to a total of 10 years’ imprisonment, with a minimum non-parole period of 7 years.
Further, I declare that the period to be reckoned as already served under this sentence is 375 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
---
1
0