DPP v Awad
[2019] VSC 706
•25 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0038
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALBERT AWAD |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9, 13 September 2019 |
DATE OF SENTENCE: | 25 October 2019 |
CASE MAY BE CITED AS: | DPP v Awad |
MEDIUM NEUTRAL CITATION: | [2019] VSC 706 |
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CRIMINAL LAW - Sentence - Unlawful and dangerous act manslaughter - Single knife wound to chest of victim – Excessive self-defence – Consumption of drugs and recent epileptic fit relevant to offending – Post-ictal confusion and automatism considered – Plea of guilty – Genuine Remorse - Moderately extensive criminal history - Offending neither among the most serious nor least serious examples of manslaughter - Imprisonment more onerous owing to epilepsy - Term of imprisonment of 7 years with non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Hutton | Office of Public Prosecutions |
| For Mr Awad | Mr P Tehan QC with Mr A Lewis | Slades & Parsons |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The offending..................................................................................................................................... 2
Aggravating and mitigating factors for culpability in the offence.......................................... 4
Post-ictal confusion?..................................................................................................................... 5
Epilepsy generally......................................................................................................................... 9
The impact of the offence on the victims...................................................................................... 9
Conclusion on objective gravity of the offence and Mr Awad’s personal culpability...... 10
Personal background and prior criminal history....................................................................... 11
Key aspects of prior criminal history....................................................................................... 12
Guilty plea and remorse................................................................................................................. 13
Relevant sentencing objectives..................................................................................................... 14
Comparable cases and sentences.................................................................................................. 15
Sentence and formal declarations................................................................................................. 16
HIS HONOUR:
Introduction
Yet again, the facts of this case prove the insidious and destructive impact of illicit drugs on the lives of people in our community.
Albert Awad, while semi-conscious, having consumed drugs and experienced an epileptic seizure, you were set upon by two men armed, respectively, with a metal pole and a baseball bat, aiming to eject you from the premises where you were situated. In the violent struggle that followed you pursued your attackers and fatally stabbed one of them, Nicola Manyoh-Thiak, a 22-year-old man. Having initially been charged with the murder of Mr Manyoh-Thiak, to which you entered a plea of not guilty, about three weeks before your scheduled trial you entered a plea of guilty upon being re-arraigned on the charge of manslaughter.
One of your potential avenues of defence to the charge of murder was that you had acted involuntarily in a state of post-ictal confusion following your epileptic seizure. Another was that you were acting in defence of yourself and members of your family who were present. In pleading guilty to the charge of manslaughter, however, you have accepted that you killed your victim by deliberately stabbing him – an unlawful and dangerous act – without lawful justification for doing so, yet also without any intention to kill him or cause him really serious injury.
At your plea hearing, the Court heard differing views from neurologists concerning the likely effect on you of your epileptic seizure during the time of the offence, and of the ongoing effects of your epilepsy. As well, the Court has heard of your material and emotional impoverishment during your formative years.
Among other things, some particular matters for consideration in passing sentence upon you for the crime which you have admitted are:
(a) the objective gravity of the offence and your culpability for it;
(b) whether, and if so to what extent, your offending occurred in the midst of post-ictal confusion;
(c) the application, if any, of the legal principles that apply in cases in which an offender’s mental impairment played a role in the offending and/or will affect him or her in prison; and
(d) the weight to be given to your deprived background.
With these and other sentencing considerations in mind, I turn to what occurred in more detail.
The offending
Mr Manyoh-Thiak was born on 19 February 1996 in Khartoum, Sudan, and was 22 years old at the time of your offending. Arriving in Australia with his family as a refugee when he was 5, he completed his schooling in Australia and attained an ATAR of 96 allowing him to commence a course in architecture at RMIT.
Mr Manyoh-Thiak’s family believed that he was attending classes and working as a landscape architect. Sometime in 2016, however, Mr Manyoh-Thiak began dealing drugs with a friend, Panon Myaker, initially trafficking cannabis before graduating to the trafficking of methamphetamine. In March of 2018, Mr Manyoh-Thiak and Mr Myaker commenced using a flat in Church Street, Richmond from which they stored and sold drugs. The flat was tenanted by Trevor Lewis and at the time of the offending was frequented by you and your partner, Nadia Ali.
In the week leading to the offence, Mr Manyoh-Thiak and Mr Myaker had left a quantity of amphetamine at the flat which later disappeared. Both believed that you had stolen the missing amphetamine, so they banned you from visiting the flat.
Present at the flat on the afternoon of 16 March 2018 were Mr Lewis, Ms Ali and her children, and Mr Myaker. Mr Myaker smoked some cannabis and fell asleep. You arrived at the flat and went into the bathroom. Ms Ali checked on you and saw that you had ‘used’ drugs and appeared to be passed out on the floor ‘having a small epileptic seizure’, as she put it, due to a condition you have suffered from for many years.
At approximately 8:00pm Mr Manyoh-Thiak arrived at the flat and was told you were in the bathroom ‘on the nod’, meaning you were asleep from drugs. He and Mr Myaker decided to confront you regarding the missing drugs and eject you from the flat. Mr Manyoh-Thiak armed himself with a metal vaccum cleaner pipe and Mr Myaker with a baseball bat, before entering the bathroom where they found you lying in the empty bathtub. Both men yelled at you to ‘fuck off’ and leave the flat before assaulting you with their weapons. They struck you several times to the head causing you to lose balance and fall back in the bath.
At some unknown stage, you obtained a knife and pursued Mr Manyoh-Thiak and Mr Myaker through the front door of the flat and onto a balcony. As Mr Myaker was running away he heard Mr Manyoh-Thiak yell for help. Upon returning to the balcony, Mr Myaker hit you once again to the head with his baseball bat – with a force he described as being ‘pretty hard’ – whilst Mr Manyoh-Thiak struck you with the metal pole. You were then seen to move toward Mr Manyoh-Thiak and push the knife forward and into his body, being the unlawful and dangerous act that led to his death.
Following his stabbing Mr Manyoh-Thiak, accompanied by Mr Myaker, ran down the stairs. Mr Myaker assisted Mr Manyoh-Thiak who was observed to be in pain. The two men ran to a 7-Eleven store a short distance away where Mr Manyoh-Thiak stated “I’ve been stabbed in the heart” before collapsing in the driveway entrance of the store. Concerned you were still in pursuit, Mr Myaker continued to run in an attempt to draw you away from Mr Manyoh-Thiak.
Indeed, you were still in pursuit of the two men, with witnesses hearing you yell out to Mr Manyoh-Thiak, “You’re fucked, that’s what happens” and “I will kill you”. Giving up the chase of Mr Myaker you were seen to walk back past Mr Manyoh-Thiak lying prone outside the 7-Eleven store and heard to say “Die you black dog” whilst holding a knife.
Following those events you returned to the flat, cleaned blood from yourself, put on a jacket and hat and left the flat heading away from the direction of the 7-Eleven store. I accept the prosecutor’s argument that this conduct was designed to conceal your identity and avoid police detection.
Paramedics attended upon Mr Manyoh-Thiak collapsed in the driveway of the 7-Eleven store, and observed he had no pulse. Upon being conveyed to the Alfred Hospital he was pronounced dead. An autopsy undertaken later revealed that he suffered a single stab wound to the lower right side of his chest, caused by a sharp implement such as a blade. Defensive wounds were also noted. The pathologist estimated that at least moderate force was required to inflict his fatal injuries.
Aggravating and mitigating factors for culpability in the offence
From this account, it may be accepted in your favour that your act of stabbing Mr Manyoh-Thiak was preceded by an attack upon you by two armed assailants. Medical examination afterwards revealed that you sustained a series of minor to moderate injuries consistent with you having been attacked and beaten. The attack must have come as a great surprise, catching you off guard while in a vulnerable physical and mental state. Not only did you have cause to fear for your own safety, but your partner and her children whom you treat as your family (one of whom is your own biological child) were also present within the confined space of the flat, providing legitimate grounds for you to fear for their safety as well. I agree with your counsels’ characterisation of the event as ‘excessive self-defence’.
Weighed against these facts, however, you armed yourself, somehow and at some stage, with an edged weapon. You then pursued your attackers out of the bathroom, through the flat and onto the balcony. It appears that, by that stage, they were trying to flee from you, realising you were armed with a knife. Having seen photographs of the flat, I accept that the distances involved were small and the duration of time between the initial attack, the pursuit and the stabbing might have been measured in seconds rather than minutes.
Nevertheless, very shortly after you stabbed Mr Manyoh-Thiak you continued to pursue him and Mr Myaker out into the street and toward the 7-Eleven store. You made aggressive verbal threats and statements indicating you had assumed the role of the attacker, bent on retaliation and serious harm. Thereafter you made readiness for evasion and escape, cleaning up blood, changing clothes and heading away from the scene of your dying victim.
Post-ictal confusion?
A significant issue for consideration is the extent to which your stabbing of Mr Manyoh-Thiak can be explained as an action carried out in an impaired mental state. Your counsel argued that your mind was impaired by a known condition that can follow an epileptic seizure, namely post-ictal confusion, during which the sufferer lacks the usual ability to properly conceive of or execute their actions: in short, while the sufferer is not completely in control of their actions. The prosecution argued, on the other hand, that you simply reacted violently to a violent attack, albeit in a state of understandable surprise and confusion that any person would suffer upon being abruptly woken from sleep or a drug induced daze.
The issue is significant because, although that particular state of confusion is no longer put forward as a basis for denying the voluntariness of your action, as a defence to the crime, it is relied upon as a basis for attracting the operation of certain sentencing principles as stated in the case of R v Verdins.[1] If applicable, those principles might operate to reduce your moral culpability for the offence in a way that is relevant to the consideration of the sentencing purposes of punishment and denunciation. Depending on the nature and symptoms of your condition, the application of those principles might also moderate or eliminate the consideration of the purpose of deterrence, both personal and general.
[1](2007) 16 VR 269.
Post-ictal confusion was described by Professor Mark Cook, a neurologist and epileptologist called on your behalf, as a state that may be experienced by a person following an epileptic seizure. He explained in his first written report that:
… the so-called “post-ictal” confusion is a common feature of seizure activity, both of major (where there is a generalised convulsive seizure) and minor (where people stare blankly) convulsions. The confused period lasts seconds to minutes generally, often up to 15 minutes. Rarely it can last longer. During this period people are often combative, and may behave in an “automatic” manner, and may not be entirely in control of their actions.
He continued:
During the period of confusion immediately after a seizure people are not completely in control of their actions, though the activity may seem purposeful it is often poorly conceived and executed — often described as automatic behaviour or an automatism — during which time the subject may behave in an erratic and violent manner. The automatic behaviour may seem quite complex — such as driving a car or continuing other demanding activities. The subject typically has no recollection of events subsequently though.
In a second report, written in response to a report from a neurologist, Professor Roy Beran, filed on behalf of the prosecution, Professor Cook addressed Professor Beran’s view that you did not stab your victim as a direct consequence of an epilepsy-related automatism in view of what Professor Beran thought was clear evidence of the purposefulness of your actions before, during and after the stabbing. Professor Cook said,
… confused and sometimes apparently directed actions which are often violent are quite common after epileptic seizures. Awareness may be partially retained, and afterwards the subject is often conscious of what has occurred, but unsure how the circumstances developed.
In his written report and oral evidence, Professor Beran referred to a number of factors which, in his view, showed you were aware of your actions both at the time you did them and afterwards. According to Professor Beran, collectively, they indicated a degree of purposefulness that made it unlikely that, at the relevant time, you suffered a pathological state of confusion such that you were not in control of your actions. Those factors were that you:
(a) retrieved a knife;
(b) pursued your attackers from the bathroom out to the balcony;
(c) made no mistake about the person whom you stabbed on the balcony, despite the presence of other persons (that is, you stabbed one of your attackers);
(d) continued to pursue your attackers after the stabbing;
(e) used verbal expressions toward them that suggested knowledge of what had occurred and what you were wishing to do; and
(f) took actions to avoid detection and capture, demonstrating an appreciation of the nature of what you had done.
Professor Cook’s response to these arguments was to point out that violent, combative actions typically occur during post-ictal confusion; actions in the state of post-ictal confusion can appear directed; some awareness of what is happening can be retained; and some appreciation of what has occurred may slowly be recovered. In other words, nothing that occurred was inconsistent with post-ictal confusion, and indeed, all of what occurred was consistent with you having been in that state.
But, when asked to identify any occurrence on the day that made it appear more likely that you were acting in a state of post-ictal confusion rather than in violent retaliation to a violent attack, Professor Cook appeared hard pressed to give an answer. Eventually he mentioned some questions which you apparently asked when you were on the balcony, as recounted by Ms Ali’s daughters, to the effect of, “What’s going on?” and “Why are you doing this”?
I find it difficult to accept that these questions more likely point to a state of post-ictal confusion than to a natural state of perplexity upon being suddenly attacked for no obvious reason. Indeed, you seemed to direct your question, logically, to your attackers and the questions were perfectly sensible ones. Although asking those questions may be consistent with post-ictal confusion, they are equally consistent with a person who is totally aware of his predicament, asking a rational question that is perfectly appropriate to that predicament.
In my opinion, based upon the evidence of what occurred on the day, Professor Beran’s view has much force.
Professor Cook sought to support his opinion from various things you said in telephone calls with friends and family while you were in prison. There was a good deal of inconsistency in the accounts you gave in those phone calls of what had occurred on 16 August 2018. Those accounts range from you having picked up the knife in the flat and inadvertently pushing it into Mr Manyoh-Thiak, to an account of self-defence, to ultimately suggesting that it was not you who had stabbed Mr Manyoh-Thiak but somebody else. Your earliest account accords best with the facts that you now accept to be correct. Later accounts, rather than suggesting the existence of some confusion on the day, point instead to you attempting to put forward alternative versions of events that could be supported by your family as witnesses at your trial, or otherwise trying to reassure your family and lift their confidence.
I am not persuaded that the telephone calls provide any solid support for you being in a state of post-ictal confusion when you stabbed Mr Manyoh-Thiak.
Professor Cook also opined that because you had a well-diagnosed condition of epilepsy, had previously experienced post-ictal confusion (as documented in medical records in 1997), and had indisputably experienced an epileptic seizure immediately before your attack, the Court could conclude you were probably in a state of such confusion at the time of the stabbing. Professor Beran did not agree with that reasoning, preferring instead to focus on the evidence of your actions at the time of the critical events on the day in question. In his view, the purposefulness of your actions tended against a conclusion of such confusion.
Ultimately, there was a degree of artificiality about this debate. I listened carefully to the examination and cross-examination of both witnesses, each undisputed experts in their field. They did not disagree on any relevant medical principle. The difference in their conclusions was somewhat explained by the different facts that each chose to concentrate upon, both having independently read the thousands of pages of evidence as they were asked to do.
In the end, I found Professor Beran’s adherence to the actual events of the day a more reliable guide to what your state of mind was at the relevant time.
Significantly, I accept that post-ictal confusion is a genuine condition and that you have suffered it in the past. But, as Professor Cook agreed, it is not a binary state, either on or off. Rather, it can occur “to a degree” and its effects can last only seconds, and a sufferer can recover from it at differing rates at different times. Additionally, it need not necessarily occur with every epileptic seizure.
Being a potential mitigatory fact advanced in your favour, I evaluate its existence on the balance of probabilities.[2] If you experienced any pathological state of post-ictal confusion on 16 August 2018, I find it was relatively minor and fleeting. I am not persuaded, to the requisite level of satisfaction, that when you pushed the knife into the body of Mr Manyoh-Thiak you were deprived of the control of your actions to any appreciable degree by an impaired state of mind.
[2]R v Storey [1998] 1 VR 359, 371.
Epilepsy generally
That said, there was persuasive evidence, not disputed by the prosecution, that you have suffered epilepsy since at least your late teenage years. You are prescribed medication for your condition. You have suffered epileptic fits whilst in prison and Professor Cook has stated — and I accept — that the stress of imprisonment is likely to dispose you to suffering epileptic seizures more frequently. In turn, having such seizures in prison will likely create difficulties for you among the prison population which those who do not suffer epilepsy would not experience. In that sense, prison will be more onerous for you than for a prisoner who does not suffer epilepsy.
The impact of the offence on the victims
Nicola Manyoh-Thiak was one of 10 children born to his parents, Rachel and Michael. His brother, Deng, courageously read to the Court the victim impact statements written by his parents, brother David and sisters Rabica and Dabora, as well as his own. Clearly, Nicola was beloved of many and his loss is incalculable. As his parents themselves said, “no words can describe the pain, the darkness and trauma” that they are experiencing and will continue to experience for the rest of their lives as a result of losing Nicola.
Deng and Rebecca both spoke of having lost their “best friend”, David of having had his life “altered … permanently” and Dabora of experiencing ongoing hurt, anger and fear.
Their statements of profound loss remind the Court of the vital context in which your sentencing must occur – that is, the extinguishment of a life valuable not only to the holder but also to so many others whose lives have been upended forever.
Conclusion on objective gravity of the offence and Mr Awad’s personal culpability
Every loss of life is of catastrophic dimension. Every life has equal value. But not all killings have the same consequence for the one who caused death. Killing in self-defence is excused; killing with an intent to kill, murder, is seen to be more deserving of severe punishment than causing death by a criminal act with something less than that intention. A killing that is drawn out and cruel is seen as more sinister and grave, and thus deserving of more punishment, than a killing that is purely reflexive and immediately regretted. Among the offences that may amount to the crime of manslaughter alone, there are generally recognised gradations of seriousness.[3]
[3]R vJagroop [2009] VSCA 46, [63].
Recognising, of course, that there is no meaningful scale for those who have suffered the loss of their loved one, to do justice for all in a system where the penalty must be measured not only against the events particular to the crime in question but also in relation to the wider set of homicides that are punished by the courts, one must begin with an assessment of the objective gravity of the particular offence.[4] That objective gravity is to be determined solely by reference to the nature of the offending itself, not by reference to factors personal to the offender (such as his or her background and character).[5]
[4]Ibid, [62] per Weinberg JA.
[5]Muldrock v R [2011] 244 CLR 120, 132 [27].
Manslaughter convictions cover a very wide range of conduct, with a correspondingly wide spectrum in the gravity of offending. The authorities caution against labelling the whereabouts on that spectrum that any particular case fits, whether in the ‘low’, ‘mid’ or ‘upper’ range, suggesting instead that the better approach is to find relevantly comparable cases which serve as yardsticks for gravity and moral culpability.[6] Nevertheless, I conclude that your offending falls neither among the most serious nor least serious examples of manslaughter cases.
[6]Lee v The Queen [2018] VSCA 343, [31] citing DPP v Weybury (2018) MVR 153, 165 [33]-[34].
Bearing these thoughts in mind, I will return shortly to consider this case against some others that have come before the courts in this State in recent times.
I turn from the gravity of your offending to a consideration of factors that are personal to you.
Personal background and prior criminal history
You were born on 1 June 1983 of Egyptian descent, your parents having migrated to Australia from Egypt before you were born. You were 34 years old at the time of the offence, now 36.
Your upbringing was somewhat turbulent, being described by your counsel as particularly unstable and disadvantaged. A good deal of your history was described by your cousin, Josephine Nabil, who grew up in close proximity to you.
By the age of 4, your parents had divorced resulting in your mother’s return to Egypt and your father suffering a nervous breakdown and developing schizophrenia. Your grandparents became your primary carers, raising you predominantly in Housing Commission flats in Carlton, although you frequently moved between the residences of your grandparents, father, uncle, and upon her later return to Australia, your mother. Being raised in a strict Egyptian Coptic Christian family, your behavioural issues often resulted in your exclusion from the family home and periods of homelessness. Your mother remarried. When you were living with her, you were mistreated, particularly by your step-father who physically abused you, regularly beating you, tying you up and locking you in a room for hours on end.
You attended schools in Fitzroy and Brunswick until Year 10, your education being punctuated with bullying due to your learning difficulties. At 13 you were introduced to cannabis, and by 19 you had started using heroin. Around this time you became engaged to Rosemary Fernando, who introduced some stability to your life for a period. Tragically however, Ms Fernando was killed in a car accident when she was only 22 and pregnant with your child.
Your adult life has been similarly turbulent, marred by interspersed periods of imprisonment, and drug abuse to which I have referred. You have carried on irregular periods of employment, including bricklaying, panel beating, carpentry and spray painting: at one stage you commenced an apprenticeship in carpentry but did not complete it due to your inability to concentrate.
In your mid-20’s you commenced your relationship with Ms Ali, welcoming the opportunity to assist in the care of her children Mahrosh, Faydia and Mohammed now aged 14, 13 and 11 respectively. Eventually, you had a child with Ms Ali, Mariam, now aged 10. Initially, your relationship with Ms Ali also brought a period of stability in your life during which you returned to school and attained a Certificate III and IV in Steel Fabrication.
Key aspects of prior criminal history
From your late teens you were a user of heroin, with this addiction informing and coinciding with much of your subsequent criminal offending. In August 2002 you were convicted of burglary and theft offences, and in July 2003 you received a 6 month Community Based Order for the possession of heroin. The following year at the age of 20, you were convicted of armed robbery and sentenced to detention in a Youth Training Centre for 21 months. You were also convicted of a number of drug and dishonesty offences that same year, resulting in a further effective term of 3 months detention in a Youth Training Centre.
In 2005 you were sentenced for burglary, dishonesty offences and possessing heroin, receiving a 30 day sentence of imprisonment and a 12 month Community Based Order. Your failure to comply with that order through further offending saw you sentenced to 1 month of imprisonment (wholly suspended), and a further 5 months imprisonment (partially suspended) for possessing amphetamine and for dishonesty offences. By 2006 you were before the courts once more and sentenced to a total effective sentence of 6 years with a non-parole period of 3 years for offences of armed robbery and robbery. Again, in 2010 and 2013, you were convicted of further dishonesty offences and sentenced to 3 months imprisonment and 14 days imprisonment respectively. Similarly, in 2015 and 2016, you were sentenced again for further drug offences, resulting in fines and short periods of imprisonment.
I am prepared to accept that your past offending occurred in conjunction with, and is substantially explained by, an entrenched and addictive drug habit formed in your adolescence. On your plea, I was informed you are making concerted efforts to address your drug addiction. Over the past 18 months, while in remand, urine samples that you have regularly provided indicate you have been drug free, and you are part way through a drug rehabilitation course.
Guilty plea and remorse
Your plea of guilty to the charge of manslaughter operates in your favour on sentence for a number of reasons. It spares the witnesses and the family of Mr Manyoh-Thiak the trauma of a trial, and it saves community expense. These are often called utilitarian benefits. Additionally, your plea represents a genuine concession on your part because it is not disputed that you had at least an arguable defence of self-defence. Moreover, your counsel would add that you had a plausible defence of automatism. In practical terms, your plea was made at an early stage after negotiations led to the charge of manslaughter being substituted for the initial charge of murder.
Seen in that light, your guilty plea reinforces the submission made on your behalf that you are genuinely remorseful for having caused the death of Mr Manyoh-Thiak. In my opinion you are entitled to a discount upon your sentence beyond that which would be warranted merely for the utilitarian value of your plea.
Relevant sentencing objectives
Now is the time to draw these strands together and consider the extent to which, individually and collectively, they engage the purposes for which sentences may be imposed as laid down by Parliament in the Sentencing Act. The sentence I impose must be no more severe than is necessary to achieve those sentencing purposes.
As a general proposition, for the unlawful killing of another, the sentencing purposes of punishment, denunciation and, at least, general deterrence would be relevant. In my opinion those purposes all have some application in this instance: you took the life of Mr Manyok-Thiak through a deliberate, unlawful and dangerous act accompanied by the aggravating features I have identified.
In your case, however, the application of those purposes is moderated to some extent because some features of the offence and your personal circumstances reduce your moral culpability. Here I refer to the fact you were responding to an unexpected attack by two armed people; that it occurred in close proximity to your partner and young children; that it happened in the immediate, confused aftermath of you awaking from the effects of a drug-induced sleep and an epileptic episode; and that your drug-affected state itself had its origins in a habit formed in adolescence, in the context of a sad, difficult and deprived upbringing.
I was invited by your counsel to find that the circumstances of your offending made it particularly inapt to impose a sentence on you as a deterrent to others because your offending was, to a degree, the result of mental impairment: that is to say, the result of you acting whilst in the automatic state of post-ictal confusion. I have already said that I am not satisfied that, at the relevant time, you did suffer such impairment so I am not persuaded I should pay less heed to deterrence, general or specific, for that particular reason. Similarly, I do not consider that your moral culpability is reduced for that particular reason.
But, as already stated, I am persuaded that your moral culpability is reduced because of the natural confusion that you felt upon being attacked, making your response more reflexive and less calculated than had you been clear-eyed. That finding affects my consideration of the punishment that is just in your case, and lowers the extent to which I consider denunciation is a pertinent purpose in sentencing you. Another factor that bears upon my assessment of the punishment that is just in your case is that, because of your epilepsy, imprisonment will weigh more heavily upon you than it will upon those members of the prison population who do not suffer from that illness.
You have a relevant and moderately extensive criminal history that includes several armed robberies and several periods of incarceration. In view of your history of drug use and associated crimes involving the use of a weapon, your commission of this serious offence also involving the use of a weapon, and whilst in a drug-affected state, gives rise to concern about your rehabilitation prospects and the need for community protection. Nevertheless, your criminal history does not feature acts of violence upon others. As is so frequently the case, it seems most important that you address your drug addiction, which you are endeavouring to do: sadly, so easy to say, so difficult to achieve.
Your guilty plea, expressions of remorse, efforts to improve yourself whilst on remand and continuing family supports all point to some positive prospects of rehabilitation; your past criminal history and addiction to drugs, however, suggest those prospects should be viewed guardedly.
Comparable cases and sentences
The maximum penalty for manslaughter is 20 years imprisonment.
Both the prosecutor and your counsel have put forward a variety of cases that might provide some guidance around current sentencing practices for manslaughter offences, particularly those involving a single stabbing as this offence does.[7] Counsel calculated the average sentence given for 14 cases of that nature.[8] I have not found that statistic especially useful but I have considered each of those cases, and others,[9] for comparative purposes to assist in determining a just sentence in your individual case. While all assisted, those of particular assistance – for points of similarity, distinction or both – were DPP v Yucel [2019] VSCA 53, R v Walker [2018] VSC 83, R v Johnston [2015] VSC 16 and R v Kells [2013] VSCA 7.
[7]R v Walker [2018] VSC 83; R v Pitt [2012] VSC 591; R v Phan [2019] VSC 153; R v Hudson [2013] VSC 184; R v Kulla [2010] VSC 60; R v Fulton [2000] VSC 487; R v Coldbeck [2005] VSC 187; R v Johnston [2015] VSC 16; Rv Brown [2017] VSC 240; R v Mitchell [2017] VSC 315; R v Lamblin [2017] VSC 306; R v Raimundo [2015] VSC 550; R v Kells [2012] VSC 53; R v Bourbaud [2011] VSC 374.
[8]7 years, 4mths with a non-parole period of 4 years, 3 months.
[9]Judicial College of Victoria, Victorian Sentencing Manual ‘27.13.1 VSCA Summaries – Manslaughter 2013 to present’ 16 July 2019.
I have also reviewed the Sentencing Advisory Council’s publication relevant to this offence.[10]
[10]Sentencing Advisory Council, Sentencing Snapshot No. 224, April 2019.
Sentence and formal declarations
Albert Awad, for the offence to which you have pleaded guilty, I sentence you to a term of imprisonment of 7 years, and I fix 5 years as the period during which you are not eligible for parole.
But for your plea of guilty, I would have imposed a sentence of 10 years with a non-parole period of 7 years.
I declare that, not including today, you have served 574 days of pre-sentence detention, which is to be reckoned as a period of imprisonment already served under the sentence I have just announced.
I will make a disposal order in respect of the 16 items seized during the investigation of your offence.
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