DPP v Lewis
[2006] VSC 393
•25 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1591 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN GEOFFREY LEWIS |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2006 | |
DATE OF JUDGMENT: | 25 October 2006 | |
CASE MAY BE CITED AS: | DPP v Lewis | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 393 | |
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Criminal Law – Sentencing – Manslaughter – Unlawful and dangerous act – Stabbing – Loss of self control – No premeditation - Plea of guilty – General and specific deterrence – Violent history of offender and victim – Prior convictions of offender – Extreme social disadvantage of offender – Drug and alcohol abuse – Remorse – Length of term should not destroy prospects of rehabilitation – Sentence of imprisonment of 9 years – Non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Horgan SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For Darren Geoffrey Lewis | Mr W Toohey | Rob Melasecca & Associates |
HIS HONOUR:
Darren Geoffrey Lewis, you have pleaded guilty to committing the crime of manslaughter against James Fitzgerald on 2 December 2004.
The crime of manslaughter carries a maximum penalty of 20 years. It is one of the gravest of crimes because it involves the unlawful destruction of a human life.
Your crime was manslaughter by unlawful and dangerous act. Intentionally, unlawfully and dangerously, you stabbed Mr Fitzgerald, not intending to kill him, but by doing so you brought about his death.
The circumstances in which the crime was committed were as follows.
You and Mr Fitzgerald were residents of the Housing Commission flats at 538-540 New Street, Brighton. You occupied one flat and he occupied another.
Late in the evening concerned, a third man, David Pearce, went to Mr Fitzgerald’s flat to buy drugs. He was turned away by Mr Fitzgerald, and there was an exchange of abuse between the two men. As Mr Pearce was walking away, Mr Fitzgerald attacked him from behind, punching him twice to the head. The two men became engaged in a fight in which kicks and punches were exchanged.
You had been using heroin, Benzodiazepines and alcohol on this day. You happened to see Mr Fitzgerald’s attack upon Mr Pearce and went to his aid. You attacked Mr Fitzgerald, repeatedly hit him in the back and head area, and inflicted fatal stab wounds on him with your large kitchen knife. You also inflicted wounds upon other parts of his body as he tried unsuccessfully to defend himself.
Mr Fitzgerald was disabled by your actions, and you stopped attacking him. When you realized what you had done, you called an ambulance on your own mobile telephone. Mr Pearce continued to kick Mr Fitzgerald, but you told him to stop, saying that he had had enough.
Mr Fitzgerald was taken to hospital where, a few hours later, he died of a stab wound to the back that went through to his chest and a lung. He was found to have been taking alcohol, cannabis, methamphetamines and amphetamines.
When you attacked Mr Fitzgerald, witnesses heard you say things like “I told you I’d get you back one day” and “how does it feel” and “you call people dogs, you fuckin hassle everybody, you terrorise everybody…” Your own explanation for your actions was caught on a covert surveillance tape shortly after your apprehension. You referred to the scarring you got two years before when Mr Fitzgerald “bottled” you. You said “I don’t know, he was down there attacking Dave. I didn’t think about it. I just went bananas.” Counsel for the Director of Public Prosecutions told me you expressed no pride in, and have expressed some regret for, what you did. The surveillance tape records you being asked “Glad you did it?” and you saying “nup”.
The killing occurred against the background of your drug and alcohol abuse and the violent relationship you had with Mr Fitzgerald. I will give a summary of these matters, but I want to make it clear Mr Fitzgerald’s violence towards you and other people in no way justified or excused your crime.
There is ample evidence that Mr Fitzgerald was a violent man. Various other residents of the flats described him engaging in serious unprovoked assaults with various weapons, some resulting in people being hospitalised. He used to carry around a rusty Samurai-type sword. He consumed various kinds of drugs and, at his worst, would “schiz out”, as one resident put it. He was known to smash the windows of the flats of other residents. He did, at times, “terrorise everybody”, as you put it. In May 2004, a group of 10 residents, including you, signed a petition to the Housing Commission that he should be removed because “he repeatedly abused, threatened and assaulted several people…”
You were a victim of Mr Fitzgerald’s violence. You used to be friends with him but the friendship broke down. Various residents describe him chasing you with blocks of wood, and assaulting and abusing you. Mr Fitzgerald was seen hitting you with an iron bar on more than a couple of occasions. You have scars on your face and nose as a result of him assaulting you with a broken bottle.
While Mr Fitzgerald was sometimes violent, so were you. Residents describe you carrying an iron bar and chasing him around the flats with it. One saw you chase him with a machete. Some heard you shout abuse at him. You too were the subject of a petition of removal. In June 2002, 15 residents complained to the Housing Commission that they were “sick and tired of living in fear” and that you were “quite dangerous and [were] always carrying a weapon…” The weapon was a knife. Your counsel said you carried it to protect yourself from Mr Fitzgerald but this is not an acceptable excuse.
It is not easy to unravel the nature of your relationship with Mr Fitzgerald. Doing the best I can, I think it very likely you had more to fear from him than he from you. The scars you bear on your face are testimony enough to his capacity to engage in serious violence against you. I can therefore accept your account that you killed Mr Fitzgerald, not intending to do so, and not in any premeditated way, but in a temporary state of loss of self-control, explained in part by the violence he displayed towards you and others over a long period of time, and in part by the drugs and alcohol you took on the day of the crime.
I will now deal with your personal circumstances. Then I will deal with Mr Fitzgerald’s, and those of his family.
Your background is one of extreme social disadvantage. You were born on 3 August 1971 and are now 35 years of age. You were 33 when you committed the crime. You were grown up in Moe by your mother and her partner Jimmy. You did not meet your father until you were 12 and spent a troubled couple of years living with him in Cohuna. He died in 2003. You have a natural sister, who has visited you in prison, and a step sister.
Between the ages of 13 and 14 you were sexually abused by a maternal uncle, which was reported to the police, but no action was taken. You left school soon after, not completing year 9. You have lived a somewhat nomadic existence since, doing seasonal and general labouring work, but never consistently. You have established long-term relationships on three occasions but are not presently in such a relationship.
Your drug and alcohol problems, to which I will refer now, are related to your criminal history, to which I will refer later.
You began experimenting with drugs and alcohol at the age of 14. Over the course of your life, you have been a user of a variety of drugs and a heavy consumer of alcohol. This has interfered with your personal development and explains many of the difficulties you have experienced. You understand the negative impact of drugs on your life and, with the assistance of rehabilitation and counselling assistance, have been drug and alcohol free for significant periods. You have, however, found it difficult to maintain this commitment in the long term.
I have been assisted by the evidence of Dr Simon Kennedy, your forensic psychologist. These are his main findings:
· You are a person of average intelligence and suffer from a long-term Dysthymic Disorder, which is a form of depression, thought not of a serious kind. You take medication for this condition.
· Your neglected and abusive childhood has made it difficult for you to develop trusting relationships with others and a proper sense of self-esteem. Therefore you have tended to lead an isolated life with few personal attachments.
· Your drug use is a form of self-medication for the depression.
· Your criminal offending is related to your drug and alcohol abuse, not to any inherent propensity to commit crime. Drug and alcohol relapse prevention would have to be as essential part of your long term recovery, and would greatly reduce the risk of your re-offending.
Your criminal record is a long one. Many of the offences are street offences connected with the nature of the life you have led. But you also have many convictions for crimes of violence. Most of these have not been of the most serious kind, at least so far as I can tell from the low to moderate sentences imposed. Some, however, have been serious. You received seven terms of imprisonment between 1993 and 2004, totalling about eight months, the longest for four months, the shortest for one day. The offences included intentionally or recklessly causing injury, assault by kicking and resisting the police (1995) and possessing a weapon and assaulting the police (1997). You have also been convicted of reckless conduct endangering a person and assault (1998) and intentionally causing injury (2002). You received suspended sentences of imprisonment, and intensive correction and community based orders with compulsory drug and alcohol treatment conditions. In the year you committed this crime of manslaughter, 2004, you were in prison for three months, and were released on 1 July. It is a concern that, despite these prior convictions, you have not acquired the skills necessary to control your actions.
I will now turn to the personal circumstances of Mr Fitzgerald. He was 43 when he died, and spent most of his life in the southern suburbs of Melbourne. He was unemployed at the time of his death, but had worked in the meat industry. His nick-name was “Froggy”. He had an older sister and two younger brothers, one of whom is deceased. He was not married and had no children.
Mr Fitzgerald’s older sister is Mary-Anne Letts. She was in court during the plea hearing, which was clearly a difficult experience for her. Her Victim Impact Statement, dated 10 October 2006, was read out in open court at her request. She and her brother have suffered emotional trauma as a result of the crime. He has been drinking heavily and she has experienced disrupted sleep and childhood memory flashbacks. Her marriage was badly affected, as her brother died in the same week. She is still undergoing counselling. I acknowledge the suffering that she and her brother have experienced as a result of Mr Fitzgerald’s death and the manner in which it occurred.
Mr Lewis, the most important sentencing consideration in this case is the gravity of the offence. You unlawfully killed a man, a crime almost at the top of the criminal scale of gravity, which demands my strong denunciation, and you used a knife to do it, which is an aggravating factor. The victim’s family experience ongoing suffering as a result.
Both general and specific deterrence must be reflected in the sentence.
General deterrence is important, for those who would commit such a crime must know the consequences they face. In particular, the sentence must be such as to contribute to the Court’s concern to deter the commission of crimes with a knife as a weapon.
As to specific deterrence, I have taken into account your background, your depression and the circumstances in which the crime was committed. Your prior history does not suggest you have a propensity to commit a crime of this magnitude. Nonetheless, you do have relevant prior convictions for crimes of violence. Indeed you were only recently released from prison when you committed this greatly more serious further crime, this time with a knife Therefore, the sentence I impose must contain an appropriate specific deterrence component.
In assessing the gravity of the offence, I take into account that you are guilty not of voluntary manslaughter, but involuntary manslaughter, that is, manslaughter by unlawful and dangerous act.
The circumstances of the offending, which I have described, show this was not a planned attack, but one that occurred in a state of loss of self-control induced by drugs and alcohol, against the history of Mr Fitzgerald’s violent behaviour. I have also described your extreme social disadvantage and your depression. These considerations reduce your moral culpability to some extent, but the extreme gravity of the crime stills remains the compelling sentencing consideration.
A significant mitigating consideration is your genuine remorse. It is clear to me that you are personally ashamed of and remorseful for your actions. You expressed remorse at an early stage, and it has been reinforced by your plea of guilty. This degree of remorse also suggests you have prospects of rehabilitation.
I also take into account in your favour that you are still only 35 years of age, and will at some point have to re-enter the community. You do wish to overcome your drug and alcohol problems – to generally rehabilitate. You are a model prisoner, have taken on extra duties, and have been employed in the timber industry, both at Barwon Prison, where you were, and the Metropolitan Remand Centre, where you now are. You are clearly trying to make the most of your time in custody, to give yourself the best chance of re-establishing your life on release. I accept your counsel’s submission that I must not impose a sentence that would crush your positive hopes for the future.
Mr Lewis, in all of the circumstances, for the crime of killing James Fitzgerald you will be sentenced to a term of imprisonment of 9 years. I fix a minimum term of 6 years before you become eligible for parole. Pursuant to s. 18 of the Sentencing Act I declare the time you have spent in custody in relation to these proceedings is 692 days (exclusive of today), which time is to be reckoned as a period of imprisonment already served under the sentence imposed. I direct that this declaration and its details be noted in the records of the Court.
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