R v Ball
[2014] VSC 669
•23 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WARRNAMBOOL
CRIMINAL DIVISION
S CR 2012 0137
| THE QUEEN |
| v |
| AARON JAMIE BALL |
---
JUDGE: | CURTAIN J |
WHERE HELD: | Warrnambool |
DATE OF HEARING: | 7 November 2013 |
DATE OF SENTENCE: | 23 April 2014 |
CASE MAY BE CITED AS: | R v Ball |
MEDIUM NEUTRAL CITATION: | [2014] VSC 669 |
---
CRIMINAL LAW- Sentencing - Defensive homicide (2 counts) - Causing serious injury recklessly (1 count) - Stabbing - Plea of guilty.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams SC with Mr T. Hoare | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr G. Georgiou SC | Slade & Parsons |
DRAFT
HER HONOUR:
Aaron Jamie Ball, you have pleaded guilty to two charges of defensive homicide and one charge of causing serious injury recklessly. The charges arose out of an incident which occurred at your home 33 Miller Street, Casterton on 4 October 2011. As at that date, you had been living at that address with your mother, Dianne Hutchins, and your sister, Chanteal Hutchins, for two years and had been living in the Casterton area for some five years.
You and your family were in the habit of yelling abuse at neighbours and passers-by and, indeed, filming them with your phones. You were also in the habit of taunting and then chasing children away which in turn caused disputes with their parents and other adults. And so it was that you and your family became known as “The Loonies”.
At around the time you moved to Miller Street, you distributed an unsigned letter to nearby residents warning them that you had a violent temper which was difficult to control. You claimed to be trained in weapon techniques and you warned people to leave you and your family alone. The house at 33 Miller Street was diagonally opposite the back yard of the house where Raymond McCombe and his family lived in Addison Street. The McCombe household comprised Raymond McCombe, his two daughters, Jessie and Laurie, his de facto wife, Janelle Lovell, and her son from a previous relationship and two young infants, the children of she and Raymond McCombe.
Raymond McCombe’s wife had died seven years previously and her death, understandably, was a sensitive issue for the McCombe family.
The McCombes and you and your family were openly hostile and aggressive to each other. The two young girls, Jessie and Laurie McCombe, complained that you and your family had taunted them about their mother being dead. Jessie McCombe was regularly abused and taunted by you and she would respond, in turn, by abusing you. Often, these run-ins would result in you chasing Jessie home. Jessie also reported that at times you would shine torches into the bathroom window, the front window, the back yard and sometimes the car at their premises. There were a number of altercations between you and members of the McCombe household.
It appears that there were many calls to the police from both sides of the dispute and so it was that the police were often involved. There were a number of intervention orders in place and at the time of these offences, there was a referral of both parties to the Dispute Settlement Centre of Victoria in place.
In September 2011, you rang the police claiming Raymond McCombe was banging on your door asking you to come out and talk and you alleged he knocked over your mail box. On another occasion, also in September 2011, some two weeks before these offences, Jessie McCombe was walking past your house with three friends and you threatened to kill them and they then ran away up a laneway which leads behind your house. You appeared in the back yard brandishing a knife and threatening them.
Turning to the events of 4 October 2011, that evening you were at home with your mother and sister. Jessie McCombe was sitting on the roof of a shed at her property with a friend, Ryan Hickson, who was the nephew of Toby Lynch, one of the men that you were later to stab that night. You and your mother were yelling abusive comments at Jessie and Ryan such as, “We can tell where you came from” and “Go root your mother”.
In response, Ryan Hickson bared his buttocks to you and made some derogatory comments. Jessie went to your house and yelled at you telling you not to say things about her mother. She then returned home and you called the police. Leading Senior Constables Kelly and Lee were dispatched to 33 Miller Street in response to two males yelling. They promptly arrived and spoke to you and your mother. You reported the incident to them and they in turn went to the McCombe house and spoke with Raymond McCombe, Toby Lynch and Stephen Mark.
Raymond McCombe told the police officers that you had said to Jessie, “Why don’t you die like your mum?” and Toby Lynch reported he had seen you with a shotgun. Stephen Mark said he had seen you on the front porch of your house with a “rifley” sort of gun. They were all reminded of the dispute resolution process in place. They were told to keep the peace and the police then left.
About half an hour later, the police were again called out, again in response to a call from you, this time claiming that six males were making threats at the front door of your house. Again Leading Senior Constables Kelly and Lee responded to the call. They arrived at about 8.38pm. They saw no one in the street but you told them Raymond McCombe and four other males were at the front door making threats and two other males were standing at the corner of Miller and Addison Street, also making threats.
The police officers left your premises and saw Raymond McCombe, Toby Lynch and Stephen Mark with some children in the back yard of the McCombe house. It appears that they were drinking around a bonfire. The police then drove around the block and Leading Senior Constable Kelly got out of the car and spoke with a neighbour who said he had not seen or heard anything untoward.
Leading Senior Constable Kelly had a clear view of the McCombe house and whilst standing there he saw a neighbour, Nanette Kelly, go to the McCombe house and return shortly thereafter. All appeared peaceable so the police officers left. It was then ten past nine.
Jessie McCombe was in the back yard of their property with two young friends, Brooke Pillar aged 14 and Stacey Boutcher, aged 13. Raymond McCombe was also in the yard. Jessie was very upset about what you had said about her dead mother and she grabbed a pole and said she was going over to your house to smash a window. She was talked out of this but despite her father telling her not to do so, she nonetheless went over to your house and stood on the nature strip yelling at your sister Chanteal who by this time was standing on the front porch and filming Jessie.
Brooke Pillar and Stacey Boutcher followed Jessie over to your house. Jessie picked up a plastic bottle and threw it at your sister who laughed and went inside. By now you and your mother were seated inside your mother's green Mitsubishi sedan which was parked in the driveway of your house. You got out of the car and ran at Jessie and grabbed her. She screamed for her father and screamed to be let go.
On hearing Jessie scream, Steve Mark recognised her voice and he told Toby Lynch that they would have to go over and stop it and get the kids out of there. Raymond McCombe, Toby Lynch and Stephen Mark ran down to 33 Miller Street and Raymond McCombe and Toby Lynch went onto your front lawn. Raymond McCombe was seen standing between you and Jessie trying to calm things down. Stephen Mark explained to Jessie that she could not go onto other people's property and tried to walk her out down the driveway.
By this time you and your mother were standing on the front driveway yelling at Jessie, Toby Lynch and Raymond McCombe, who was standing on the road. You and your mother said to Jessie “Go kill yourself, like your mum” and it is apparent that you said that more than once.
Janelle Lovell, who had also walked over to your house complained to you mother “What’s your fucking problem yelling at kids?” and with that your mother got into the car and Janelle Lovell went to the car window and continued to remonstrate with her. Jessie McCombe continued yelling at you and your family. It was said by Janelle Lovell that everyone was angry.
By this time there were nine people, including yourself, at or near the driveway and front porch of your house. It was in these circumstances that you went from the front of the property down to the backyard arguing with Raymond McCombe, Toby Lynch and Stephen Mark. You were walking backwards and there was some pushing and shoving and eventually you and Toby Lynch were arguing in the back yard at the end of the driveway near the fence line.
At some point, Raymond McCombe also found himself in the back yard. You produced a knife and stabbed Toby Lynch once in the chest. He withdrew from you saying he had been stabbed. Stephen Mark saw you arguing with Toby Lynch. He did not see a weapon at this stage. He went over to you and was trying to calm you down and move you away from the people who were yelling at you.
He was telling you he did not want to fight you but you were pushing him and then you stabbed him. Although he thought he had only been punched by you. Stephen Mark tried to punch you back but missed as his energy was failing him. He turned around and saw your mother driving her car at you and Raymond McCombe. Indeed, it appeared to him that the car had made impact. Someone yelled out that Spotty, that is Raymond McCombe, had been stabbed and it was then that Stephen Mark realised he had been too.
So by this stage Toby Lynch and Stephen Mark had both been stabbed. They left the driveway and went out to the front of the premises. Janelle Lovell also saw your mother drive her car at Raymond McCombe and you. The car appeared to clip Raymond’s leg. He staggered but did not fall. He was standing facing Janelle Lovell and you were behind him standing to the right.
Janelle Lovell saw you stab Raymond McCombe to the right side of his neck and shoulder approximately five times. She then ran to a neighbour to summon help. Raymond McCombe was still standing but he fell to the ground and you continued to stab him. While on the ground you cut his jeans some 40 centimetres from the waist down the left leg and inflicted a knife wound to his genitals. Jessie McCombe must have been standing nearby because she also saw you stabbing her father from behind and then, when he fell to the ground, she saw that you continued to stab him repeatedly.
At 9.48 p.m. Chanteal Hutchins rang Triple-0. She reported that two males and two females were fighting in the back yard and that Raymond McCombe was attacking you. You got onto the phone and told the operator that somebody had tried to murder you. You were bleeding from your hands and you had been knifed.
Given the presence of blood on the doorframe of the house that call was most likely made while you were in the house after you had stabbed Raymond McCombe. After that call, you, your mother and sister drove off in the car and eventually drove across the border to Mount Gambier.
Neighbours also called Triple-0 requesting the police and the ambulance. In the meantime Stephen Mark walked to a neighbour's house. He was taken in and given a towel to cover his injuries and eventually driven by a neighbours to the Casterton Hospital. He was later transferred to the Hamilton Hospital where he underwent emergency surgery. He had, in fact, been stabbed three times. In the left shoulder, described as superficial, in the abdomen, described as a curvilinear laceration eight centimetres in length and a two centimetre laceration to the left upper back with an associated haematoma seven centimetres in diameter.
It is this conduct which forms the subject of Charge 3 on the Indictment. Toby Lynch walked up Miller Street and went to the front of the McCombe’s house. He saw his girlfriend as he was getting into a car to be taken to the hospital and remarked to her “I’m fucked, darling”. He was also taken to the Casterton Hospital. It was ascertained that he had a six centimetre gash to his stomach and underwent emergency treatment. It was necessary to transfer him to the Royal Melbourne Hospital by Air Ambulance, but en route his condition deteriorated and the helicopter was diverted to the Geelong hospital. He underwent emergency surgery there, but to no avail, and died at 3.05am on 5 October 2011.
An autopsy performed by Dr Matthew Lynch determined that the cause of death was a stab wound to the chest. Toby Lynch's death forms the subject of Charge 2 on the indictment.
Leading Senior Constables Kelly and Lee again arrived at 33 Miller Street, this time at approximately 9.56pm. Janelle Lovell was distraught saying that Raymond McCombe had been stabbed. Leading Senior Constable Kelly could not locate Raymond McCombe in the back yard because of the long grass but he returned with Janelle Lovell and together they found Raymond McCombe lying in the grass. At 10.03pm, the ambulance arrived and paramedics determined that nothing could be done for Raymond McCombe, he was dead.
An autopsy performed by Dr Matthew Lynch determined that Raymond McCombe had suffered 34 stab wounds and had died from incised injuries to the head, chest and abdomen. The pathologist determined, as best he could, that the requisite force to inflict those injuries was severe. Mr McCombe's death forms the subject of Charge 1 on the Indictment.
As stated previously, you drove with your mother and your sister to South Australia. You stopped at Dergholm at 10.30 pm to buy petrol and arrived at the Mt Gambier Hospital at 11.35pm. By this time, you had changed your clothes. Uniform members of the South Australian Police, having been alerted to be on the lookout for you, attended at the hospital at 12.03am. They spoke to you and your mother in the waiting room of the hospital. That conversation and all subsequent conversations were recorded by the police.
At the hospital, you were treated for your injuries and you told the doctor that you had been pinned to the ground by a few people and were struggling with them when you were hit by a car travelling at 60 kilometres per hour. You told the doctor that the injuries to your head and face were caused when the car hit you and an injury to your thumb had occurred when you heard two pistol shots and may have deflected the bullet with your thumb. That injury was also described by the treating doctor as superficial and inconsistent with a gunshot wound.
Your mother’s car had been parked at the hospital car park. It was searched and a large striped shopping bag was located in the boot. In it were the clothes that you had been wearing earlier that night, including a fleecy jacket which was wet through. DNA testing later revealed that Raymond McCombe’s DNA was present in blood located on that jacket.
In the meantime, the Victoria Police were conducting a search of the back yard at 33 Miller Street. The back yard was unkempt with long grass and a large pile of rubbish up against the house. They located a silver coloured knife lying beside Raymond McCombe’s body. The knife had blood on it which later testing established for DNA both from you and Raymond McCombe. Blood was also found on grass near his body and blood on the handle of the back door.
The Mt Gambier Police arrested you and later, at 4.25am, you participated in a record of interview conducted by officers from the Mt Gambier CIB at the Mt Gambier Hospital. During that interview, you stated that Raymond McCombe and eight males had attended at 33 Miller Street, Casterton and threatened you and your family. You said they were armed with knives and bottles and a man called Josh was armed with a handgun. The men started pushing you into the back yard and whilst saying they were going to stab you and kill you and Josh was saying that he had come from Port Phillip Prison to kill you.
You told the police that Josh menaced you with the gun, that you had been pistol whipped and the men lifted your T-shirt and pointed to where they were going to stab you. You were held to the ground and managed to get up and punch and kick them.
You told the police you kicked one of the men in the jaw and knocked him over backwards and that Josh pointed the gun at you and you heard two bangs. You told the police that they let two shots go and shot you in the hands and your mother had seen them pointing a gun or something at you and that that was why she drove the car at them. You also told the police that Raymond McCombe had punched you and they were trying to stab you and that you defended yourself with your hands and your feet and that you did not handle any weapons.
At approximately 5.30am, you were transported to the Mt Gambier Police Station and you were later interviewed by Detective Senior Constable Barry of the Victorian Homicide Squad in the presence of Detective Sergeant Scott of the Mt Gambier CIB. You repeated the same version of events.
You told the police that you were attacked by a number of men who came onto the property including a bald headed man called Josh who threatened you with a firearm and pistol whipped you. A gun was pointed at you and others produced steak knives. You were chased around the yard and the men grabbed you and held you down.
You told the police that they were coming at you with knives and bottles and you were responding with roundhouse kicks. You did not have any weapons and you did not use any weapons at all but Raymond McCombe had a bottle in his hand and tried to smash it over you. You were asked, “Is there anything you did that could have caused Raymond McCombe to die?” and you responded, “Only if I like punched him or kicked him but it’s only just like forcing away. I don’t know. It’s nothing I could have done to kill him. He had a bottle in his hands and tried to smash it over me”.
You did not know the name Toby Lynch and when asked, “Did you do anything to anyone else that could have killed them?” you said, “No”. Likewise you had never heard of the name Stephen Mark. When told you were being charged with murder, you replied that you did not kill anyone and that you were the victim, you were attacked by people.
You told the police in speaking of Raymond McCombe that he was alive and standing when you left him. You were asked if the clothing taken from you was the clothing you had worn during the incident and you said that it was, which of course it was not. You had changed earlier in the night. As to your claim that you had been shot in the hand, subsequent investigations revealed that no one had heard gunshots and indeed Stephen Mark did not see any weapon on that night and the three men whom you attacked that night were all unarmed.
You were subsequently charged with the murder of Raymond McCombe and you were later charged with the murder of Toby Lynch and the attempted murder of Stephen Mark. On the first day of what was to be the trial, the Crown accepted your pleas of guilty to two charges of defensive homicide and one charge of recklessly causing serious injury.
The maximum penalty for defensive homicide is 20 years’ imprisonment and for recklessly causing serious injury 15 years' imprisonment. So it is that Parliament regards these as very serious offences indeed. By your pleas of guilty to the two charges of defensive homicide, you acknowledge that you acted with the intention to kill or to cause really serious injury to Raymond McCombe and Toby Lynch and it is accepted by the Crown that you killed Raymond McCombe and Toby Lynch in circumstances where you believed your actions were necessary to protect yourself from the infliction of death or really serious injury but that you did not have reasonable grounds for that belief and in respect of the charge of recklessly causing serious injury occasioned to Stephen Mark, that you acted without lawful justification or excuse and that you were reckless as to whether your actions caused him serious injury.
Your conduct that night resulted in the loss of two lives and seriously affected the physical health of a third person. Raymond McCombe was 38 years old at the time of his death. He had two daughters, Laura and Jessie, then aged 16 and 15 respectively. Their mother, Samantha, had passed away some seven years earlier and he had brought those girls up substantially on his own.
He had formed a new relationship with Janelle Lovell who had a son of her own and together they had two children, Sienna then aged 18 months and Blake then aged five months. At the time of his death, Raymond and Janelle were engaged to be married. By your actions, you have left four children without their father.
A DVD portraying Raymond McCombe was played to the Court and various victim impact statements were also tendered. Victim impact statements were made by his mother, Dorothy McCombe, who described her son as “her lifeline, a wonderful father and a good son”. His brother, David McCombe, described Raymond as “a person who had a hard time with his wife dying early and bringing up two children”. David McCombe commented that the family relationships had now changed forever.
Rhonda Meyer, Raymond McCombe’s sister in her victim impact statement said that his death had affected her marriage and her children and that Jessie had stayed with her initially after he father died and she was, at that time, a mess. Another sister, Linda Emmerton, has suffered a resurgence of a chronic illness and Raymond McCombe’s fiancée, Janelle Lovell, described being mentally and physically scarred for life. Suffering depression, anxiety and stress and now left with raising two young children on her own to whom she is unable to explain what happened to their father.
Raymond McCombe’s daughter, Laura, in her victim impact statement described the difficulties she had with school after her father's death which resulted in her leaving school at an earlier time than she anticipated. She had to move home three times as she does not feel settled. She has been on medication for depression and insomnia and after her father’s death became very sick with stress. She found the court case and giving evidence terrifying and the past years without her father have been very difficult. She misses him every single day.
A victim impact statement made by Jessie McCombe was also tendered in evidence. She described her father as “everything to us. A great man and a great father”. She also left school as a consequence of her father's death. The girls have been orphaned. They are not living together nor is either living with Janelle Lovell. So that their lives have been completely disrupted and irrevocably changed by your actions that night.
Toby Lynch was 25 years old at the time of his death. He grew up in the Warrnambool area and had been a relationship with Jessica O’Neil since they were very young. They had grown up together as children, living in the same street and he had gone to Casterton that day to help Raymond McCombe put a new kitchen into the house where he was then living.
Glenice Lynch, his mother, in her victim impact statement described Toby as “her best friend, teacher and key to her soul” and that he is missed every second of every day. Peta Lynch, Toby Lynch’s sister, read her victim impact statement to the Court. She said that your actions had put she and her family into a depression as they tried to deal with the grief and loss of a younger brother and that by your actions you took away a big part of her family's life.
Terry Lynch, Toby Lynch’s brother, in his victim impact statement, spoke of their shared passion for motorsport and that friends and family were the most important part of his brother’s life. Peter Hickson, Toby Lynch's former brother-in-law, in his victim impact statement described Toby as a dedicated uncle to his sons, Ryan and Denny, a caring and loving person always looking out for the children’s welfare. Jessica O’Neill, his girlfriend, in her victim impact statement describes how much she misses Toby.
Stephen Mark is now 31 years old. He was born and raised in Casterton and continues to live there. He has a son, now aged three. He had known Raymond McCombe all his life. He was present at Court during the plea but understandably cannot bring himself to talk about what happened to him.
No sentence this Court can impose can ameliorate the grief and suffering of the loved ones of Raymond McCombe and Toby Lynch and no sentence this Court can impose can restore to them their loved boyfriend, father, husband, brother and son. No sentence this Court can impose can redress the consequences of your crime to Stephen Mark.
I turn now to matters personal to you. You have admitted prior convictions arising from an incident on 16 November 2000 at Geelong. You were then living at 20 Harper Road and you were known to constantly harass the young girls who would frequent the premises next door at number 24 Harper Road.
At 11.00pm on 16 November 2000 a 17 year old girl stood at your front door.
She placed the palms of her hands on the security wire door as she was about to look through the door. You thrust a knife through the screen penetrating her hand. A short time later, you drove your car through your driveway gates and continued driving onto the footpath and collided with the fence at Number 24 Harper Road where a group of young people had congregated. Police attended and you were subsequently charged with recklessly causing serious injury, which related to the injury sustained by the young girl, and reckless conduct endangering life, which related to the driving of the motor vehicle in the direction of the young people, and two driving offences.
You were convicted and sentenced to an aggregate of 23 months’ imprisonment, 18 months of which sentence was suspended and you were required to serve five months’ imprisonment. It appears that you successfully completed the operational period of this suspended sentence. You would have been 20 when you committed these offences and they are relevant in this instance because they involve a use of a knife, the infliction of injury and your impulsive actions.
You are now 34 years old and at the time of these present offences, you were 31. You were living a secluded life with your mother, Dianne Hutchins, who has since died and your half-sister, Chanteal, who was then aged 24. You grew up mainly in the Hamilton and Warrnambool regions of Victoria but you also attended schools in Ballarat. Your family moved a lot and you went to at least eight schools. Your last year of formal education was Year 8 at the Ballarat East High School and during that year you were referred to a psychiatrist because of bullying and other behavioural issues. Ultimately, home schooling was recommended and this was pursued for some 12 months.
Since leaving school, you have worked in a number of unskilled positions. At a timber mill, a pine plantation, a driveway attendant, in furniture delivery and as a security guard. But you have not been employed since 2002 and you have been in receipt of Centrelink benefits since then. It appears that at the time you committed these offences, you were some six weeks short of completing courses in cooking and tourism with the Hamilton Skill Centre and you have done other courses in the past designed to improve your skills.
You were raised by your mother and you and she and your sister formed a tight-knit but isolated family unit. You never had any relationship with your father and there was little or no contact with other family members and no friends. Your counsel, Mr Georgiou SC, submitted that your life was marked by great instability, multiple changes of school and residences, a lack of achievement in most aspects of life, the complete absence of a father figure and strongly held beliefs of victimisation and persecution. Yours was a dysfunctional family unit and that dysfunction, he submitted, commenced early in your childhood and continued into your adult life.
In 2009, you, your mother and sister came to the attention of the South West Health Care Services but there appears to have been nothing further until, indeed, you were admitted to the acute assessment unit at the Melbourne Assessment Prison on 10 October 2011, upon being remanded in custody for these offences.
You were then presenting with disorganised speech, expressed paranoid themes and a vague but convoluted account of what had led to your incarceration. You were certified under the Mental Health Act and transferred to the Thomas Embling Hospital for further assessment and treatment. You remained at that hospital for ten months and you were discharged with a diagnosis of paranoid schizophrenia with longstanding fixed delusions and chronic psychosis.
Your mother and sister were noted to share the same delusions. You were prescribed Halazepam and Amisulpride and upon discharge from the Thomas Embling Hospital, you were housed at St Paul’s Psycho-social Unit at Port Phillip Prison where you remain to this day.
A number of reports concerning your mental health at the time of these offences and now were tendered in evidence both on your behalf and by the Crown. Since being in custody, you have been assessed as having an IQ of 77 and have been described as being of rather dull intelligence, but you are not intellectually disabled.
A psychological assessment written by Dr Mira Aurora and Ms Terry Robertson following upon your hospitalisation and discharge at Thomas Embling Hospital dated 10 August 2012 was tendered in evidence as Exhibit 3. It noted that you have limited insight in your mental illness and you present as a moderate risk of violent re-offending. However, that level of risk in the author’s view may be underestimated because of the lack of information available to them.
Further, it was the author's opinion that any future violence is likely to occur in the context of a deterioration in your mental health. A report dated April 2012 by Dr Pandurangi, Senior Registrar of Forensic Psychiatry at the Victorian Institute of Forensic Mental Health referred to you as suffering a paranoid psychotic illness, previously untreated and likely to be paranoid schizophrenia or a delusional disorder and as at that date, you were still exhibiting psychotic symptoms.
Two reports by consultant psychiatrist Dr Lester Walton dated 3 November 2012 and 11 June 2013 respectively were also tendered in evidence. Dr Walton remarked that the duration of your stay at the Thomas Embling Hospital, some ten months, marked the likely severity of your illness. Dr Walton was of the opinion that you were likely to be suffering psychotic symptoms as far back as 2009 and that, as you were observed to be acutely psychotic so soon after the offending, it was safe to conclude that you were in the grips of similar symptoms at the material time and that it was probable that you had the defence of mental impairment available to you.
As your mother and sister shared the same delusional beliefs for which they were also never treated, the possibility that your mother suffered the principal psychotic illness and you and your sister shared in that psychosis, a folie à trois could, Dr Walton concluded, be sensibly doubted. In his opinion, you are properly to be diagnosed as suffering actual schizophrenia and this is so, as I understand it, because the symptomology of a folie à trois or à deux is likely to abate when one is separated from the person who bears the mental illness and that has not occurred in your case.
You also told Dr Walton that you acted in self-defence and implicated your mother. A report dated 13 September 2013 by Dr Remy Glowinski, consultant psychiatrist at the Victorian Institute of Forensic Mental Health, was also tendered in evidence. He reported that your more bizarre symptoms subsequently settled when you are on anti-psychotic medication and that senior treating clinicians at the Thomas Embling Hospital had found your presentation difficult to categorise.
Dr Glowinski thought it possible that you suffered from a delusional disorder which had arisen or significantly worsened after the offence emanating from your highly disturbed personality and persecutory material emanating from your mother whom he described as paranoid, highly protective and dominant.
In his opinion, if you do suffer a delusional disorder it is difficult to treat and it is not unusual for persecutory beliefs to persist, despite psychiatric treatment.
When you were spoken to by Dr Glowinski you denied having a knife and at one stage told him your mother came out of the house with a carving knife and that she stabbed Stephen Mark in the back which, of course, is inconsistent with his account and your plea of guilty.
The most recent report is that of Dr Mark Ryan, consultant psychiatrist and acting assistant clinical director at the Thomas Embling Hospital. That report, dated 10 January 2014 was obtained in order to assess your suitability for a hospital security order under s 93A of the Sentencing Act 1991.
Dr Ryan reported that you are currently under the care of the psychiatric team at St Paul's Psycho-social rehabilitation unit at Port Phillip prison. He reported that you are now no longer on medication and withdrew it from it, under supervision of a psychiatrist, in early 2013. There has been, he reported, no discernible change in your presentation since withdrawal of the medication.
I note, however, Mr Georgiou’s submissions this morning that since Dr Ryan’s report was written in January this year, you have been seeing Dr Senna, a psychiatrist at the St Paul’s unit and you have resumed anti-psychotic medication by reason of the anxiety you are said to be suffering as a result of this outstanding court case.
You continued to express what Dr Ryan described as a well systemised set of conspiracies involving missing persons, homicide and the involvement of the police and the victims of these offences. You continue to hold bizarre ideas. For example, being a clone or grandson of Hitler, being able to read minds and having being subject to experimental medical procedures. It appears that the genesis of these ideas derived largely from your mother’s beliefs.
You are currently being managed by a multi-disciplinary psychiatric team. You are reviewed on a monthly basis by a psychiatrist and your most recent diagnosis is a schizoid personality disorder and the delusional ideas which were attributed to a folie à deux with your now deceased mother as the source of the belief system.
You are said to be managing reasonably well in the St Paul’s unit and you are described by staff as settled and displaying no problematic behaviour. In Dr Ryan’s opinion you have a paranoid psychotic illness characterised by persistent persecutory delusions that are not overly preoccupying or distressing and other bizarre ideas that are less strongly held and not currently, by definition, delusional.
Yours is an atypical presentation and most of your odd beliefs initially came from your mother and they have not significantly receded since your separation from her. You do not appear, at present, to have the other hallmarks of a schizophrenic illness and the provisional diagnosis is one of a delusional disorder. It was undiagnosed and untreated at the time of these offences.
In Dr Ryan’s opinion, there appeared to be some diminution of some of the more unusual ideas that you held when you were treated at Thomas Embling but most have remained intact and significant withdrawal of medication has not led to a significant relapse.
In Dr Ryan’s opinion, confidence with respect to the diagnosis is likely to develop over time with both continuing diminution of these beliefs or a re-emergence of more florid psychotic clinical picture as possible outcomes.
Dr Ryan considered a hospital security order might be an appropriate disposition but at the present time such a hospital bed at the Thomas Embling Hospital is not available and there is a waiting list.
Dr Ryan advised the Court that any prisoner assessed as requiring compulsive psychiatric treatment in Thomas Embling Hospital will be transferred there as a security patient and that, should you receive a custodial disposition, there will remain the option of transferring you to Thomas Embling Hospital as a security patient, should that be required.
Your counsel, Mr Georgiou SC, submitted that these offences occurred in circumstances where Raymond McCombe, Toby Lynch and Stephen Mark had come onto your property. Raymond McCombe and Toby Lynch, as later revealed in their respective autopsies, had at some stage consumed cannabis and methamphetamine and certainly they had both been drinking. Everyone was angry, it was dark, there were a number of men on your property, there was yelling and Mr Georgiou SC submitted you were scared and panicked and, in those circumstances, you reacted spontaneously, in the heat of the moment, and stabbed the three men.
In particular, Mr Georgiou SC submitted that in respect of Raymond McCombe, the 34 stab wounds were indiscriminate and perpetrated by you, a person who was unwell, who panicked and responded in a frenzied reaction. Mr Georgiou submitted that you had a genuine belief in the need to defend yourself and your family from the infliction of death or really serious injury, and that in respect of the stabbing occasioned to Stephen Mark, the same circumstances prevailed. You were not looking for trouble, you reacted in the heat of the moment in a state of fear and panic.
Mr Georgiou submitted that you now accept that in respect of your three victims, you inflicted those injuries. Nonetheless, it appears from the various medical reports that have been tendered, that you have little insight into the nature of the your offending, which adds complexity to the considerations of remorse, contrition and rehabilitation.
Mr Georgiou SC submitted your psychiatric state and your plea of guilty to the two charges of defensive homicide and one charge of recklessly causing serious injury and particularly, in circumstances where Dr Walton was of the opinion the defence of mental impairment was reasonably arguable and available to you, are matters which go in your favour.
He submitted that by your plea of guilty, you have saved the community the cost of a protracted trial, one where many witnesses, including child witnesses and the daughters of Raymond McCombe would have been required to give evidence.
Mr Georgiou SC also submitted that I should take into account that you are a person of limited intellect, that you have had a dysfunctional life to date, that you have been dependent upon and under the domination of your late mother and tragically for all concerned, until these events came to pass, you had suffered from a serious psychiatric illness as, it appears, did your mother and your sister, for which you were never treated. Mr Georgiou also submitted that your prior convictions and these offences occurred when your mental state was undiagnosed and untreated.
Mr Georgiou submitted because of your low intellect and the likelihood that you were suffering from paranoid schizophrenia at the time, general deterrence should have little or no effect and that considerations of specific deterrence by reason of your prior convictions should be sensibly moderated.
Mr Georgiou submitted that prison will weigh more heavily upon by reason of your mental illness, you are held in protection and because of the unusual and bizarre beliefs that you hold, it would be difficult for you to be housed in mainstream. You will have no visitors and have limited means to stay in touch with your sister.
While in custody, you have participated in several vocational courses and you spend your time reading, watching TV and playing snooker and Mr Georgiou advised the court that you are presently working seven days a week as a kitchen billet. It is anticipated that upon sentencing, you will resume participating in a cooking course and that you are currently studying mathematics, English and horticulture and that you are involved in prison fellowship and hope to become a prison mentor.
In light of your settled state while housed at St Paul’s, Mr Georgiou SC did not submit that there is a serious risk if imprisonment having a significant adverse effect on your mental health as, indeed, the contrary appears to be the case and Mr Georgiou SC further submitted that there are some prospects for your rehabilitation. You have now been diagnosed, you have been receiving treatment, you have been cooperative and compliant with the medication.
Ms Williams SC, who together with Mr Hoare, appeared on behalf of the Director, conceded that the principles of R v Verdins apply in this case, that is your moral culpability for your crimes is reduced by reason of your mental illness. Ms Williams SC nonetheless submitted that your offending, particularly in respect of Raymond McCombe, is particularly grave and sits in the worst category of instances of defensive homicide.
That is so, she submitted, because (1) by the time you attacked Raymond McCombe, you had already stabbed Toby Lynch and Stephen Mark; (2) the attack on Raymond McCombe was out of all proportion to any threat he posed; (3) you continued to stab him as he lay on the ground; (4) you later mutilated his genitals; and (5) in respect of all three of your victims, they were all unarmed.
Ms Williams SC also submitted that your remorse is qualified by the fact that you fled the scene, you gave fictitious accounts to the police, your pleas of guilty come two years after the event and after a committal in which Mr McCombe’s daughters did give evidence and in these circumstances, the pleas of guilty, insofar as they are said to reflect remorse, should be given little weight, although she accepted that there was nonetheless a utilitarian value to the pleas.
Ms Williams SC also submitted that, by reason of your prior convictions, your lack of insight into your offending and your lack of true remorse, specific deterrence should be given due weight and she further submitted that your prospects for rehabilitation, if one accepts the diagnosis of Dr Glowinski, that of delusional disorder, that it is likely to be resistant to change. It would follow, given your limited insight and entrenched pattern of behaviour as reported by Dr Walton, that you will continue to pose a danger to the community and the community will need to be protected from you.
Ms Williams SC further submitted that you have stabbed three people, Toby Lynch once with the intention, she conceded, to inflict at least serious injury; Stephen Mark three times with your state of mind being reckless as to whether he was seriously injured or not; and that you intended to kill Raymond McCombe, such intent evidenced by the number of times you stabbed him.
Although the medical opinion differs as to the appropriate categorisation or name to be given to your disturbed mental state as it is now, all except Dr Glowinski accept that you were likely to be suffering from a mental illness at the time of these offences and I accept that the preponderance of the expert opinion is such that this is likely to be so. Further it was both undiagnosed and untreated.
Therefore I accept that there is a causal link between your offending and your mental illness, whether it be described as paranoid schizophrenia or a delusional disorder and I accept also that the principles of Verdins are here applicable so as to reduce your moral culpability for the crimes you have committed.
In applying the principles of Verdins, I am satisfied that your mental illness impaired your ability to exercise appropriate judgment and your ability to make calm and rational choices or to think clearly and, given Dr Walton’s opinion, may well have impaired your ability to appreciate the wrongfulness of your conduct.
By pleading guilty to the two counts of defensive homicide, you acknowledge you intended to kill or to cause really serious injury to Toby Lynch and Raymond McCombe but that you acted in the belief that it was necessary to do what you did to defend yourself from the infliction of death or really serious injury and that you did not have reasonable grounds for that belief.
Integral to defensive homicide is your belief in the necessity of your actions and I accept that you are genuine in holding that belief, otherwise there would be no basis for the Crown accepting your pleas. But also integral to the charge of defensive homicide is that there were no reasonable grounds for that belief which, by your plea, you acknowledge.
I accept that three men did come onto your property in circumstances where there had been a lot of yelling and mutual abuse and where your comments and those of your mother referring Raymond McCombe’s deceased wife were inappropriate and no doubt inflammatory.
I accept also that alcohol had been consumed. It was night time, it was dark and clearly this must have been a dynamic, fluid and highly charged event. It was in those circumstances that you responded to what you believed was a threat to your life or to the threat of being seriously injured and you produced the knife. Although the evidence does not reveal how you came to be in possession of it and went onto stab Toby Lynch, Stephen Mark and Raymond McCombe.
True it is that the three men came onto your property but they came unarmed and Stephen Mark expressly said and told you he had not come to fight you. Raymond McCombe had tried to intervene between you and Jessie and by the time you had stabbed Raymond McCombe you had already stabbed Toby Lynch once and Stephen Mark three times.
You inflicted some of the stab wounds on Raymond McCombe when you were standing behind him and at some point in that frenzied attack and most certainly when he was down on the ground, you must have realised he no longer posed a threat to you. Further, there was nothing defensive about your actions in mutilating his genitals.
So it is that there is much force in Ms Williams’ submission that your conduct in killing Mr McCombe was a serious, if not grave, example of the crime of defensive homicide. Of course in this instance, you have not only killed one person but two and seriously injured a third.
The reality is your response to the threat, as you believed it to be, was totally disproportionate to the conduct and menace posed by those three men and that belief, in the necessity of your actions, although genuinely held, was unreasonable in all the circumstances.
It follows that I do regard these two instances of defensive homicide as serious examples of a serious offence and indeed the charge of recklessly causing serious injury here, three stab wounds inflicted on a man who said he did not want to fight you, in circumstances where it must have been apparent to you that he was unarmed. This also is a serious example of a serious offence.
The account you gave to the police is clearly false and designed to cast yourself as the victim set upon by armed men. You maintained that you did not use any weapon or do anything to have caused the death of anyone and that Raymond McCombe was alive and standing when you left him. You knew that this was an untruthful account. It is inconsistent with the objective evidence, inconsistent with the accounts of those present and insofar as you sought to implicate your mother in the stabbing of Stephen Mark, clearly inconsistent with what occurred.
I do not, however, regard these untruthful accounts as aggravating features as I cannot exclude that the falsity of these accounts is not the product of your persecutory beliefs which, in turn, is the product of your psychotic illness under which it is most likely that you were labouring at that time.
Your lack of remorse and insight into your offending is most likely as a result of your mental illness and I do not regard the absence of those two features as a circumstance of aggravation. But the absence of those considerations is, nonetheless, relevant to your prospects for rehabilitation.
Even though you have now been diagnosed and have received treatment and, indeed, you are presently under psychiatric care, your prospects for rehabilitation must be very guarded and will, no doubt, depend on your mental state. You have been assessed as a moderate risk of violent re-offending. If Dr Glowinski’s diagnosis is correct, and I note which diagnosis Dr Ryan now supports, you have a delusional disorder which is treatment resistant. Indeed appropriate medication has failed to eliminate your bizarre beliefs and persecutory delusions, although when medicated they appear to have settled.
So it is that you are likely to continue to be a danger to the community and any sentence this court imposes must serve to protect the community from you.
In sentencing you, I am obliged to take into account current sentencing practices. A number of cases of defensive homicide have been referred to the Court. Each case depends upon its own facts and circumstances and no previous case has been cited to the Court which has involved two charges of defensive homicide and one charge of recklessly causing serious injury. Nonetheless, I have had regard to the sentences imposed in other instances of defensive homicide, in particular R v Ghazlan[1] and R v Callum Zane Smith,[2] cases in which the offender pleaded guilty to defensive homicide and, at the time, had been suffering from a mental illness. And indeed, this morning I heard further submissions, both from the Crown represented by Mr Hoare and Mr Georgiou, in respect of those two cases and their relevance to this sentence.
[1][2011] VSC 178.
[2][2008] VSC 617.
In sentencing you, I take into account your pleas of guilty and give you a discount for them. I take into account that by reason of your pleas, you have saved the community the cost of a trial and the witness, particularly Janelle Lovell and Laura and Jessie McCombe, the ordeal of one. Especially as Laura McCombe found giving evidence at the committal particularly difficult.
I take into account also that by reason of your pleas of guilty, you have facilitated the course of justice and by your pleas of guilty, you have acknowledged your responsibility for killing Raymond McCombe and Toby Lynch and seriously injuring Stephen Mark. I take into account that you genuinely believed it was necessary to do what you did in self-defence but even so, when objectively viewed, these are still three serious crimes involving, as they do, the use of a knife on unarmed men resulting in two men dying and a third being seriously injured. The sentence in respect of each charge must act in denunciation of your conduct and serve to punish you as well as protect the community from you.
In sentencing you, I take into account your age, your limited but relevant criminal history, noting that you were not charged with any offences between the year 2000 and these offences, thus, you have demonstrated a period in which you can live in the community offence-free. I take into account also your dysfunctional childhood and adolescence, including your disrupted and limited education. I take into account that you are assessed of low intelligence and that you have been diagnosed as suffering a serious psychiatric illness which was most likely operating on you at the time of these offences and still does.
Provided you remain under psychiatric care and supervision, your rehabilitation, that is your ability to live in the community without committing further offences, is not without hope. But realistically, your prospects for rehabilitation must be assessed in the context of your mental health. Certainly, you have the capacity to maintain lawful employment, as you have done in the past, you have participated in a number of vocational courses while in custody and you are compliant with your medication.
You now accept responsibility for your actions, although you have not expressed remorse and it appears you have little or no insight into your offending. Although I accept that that is likely to be an aspect of your mental illness, it does, nonetheless, impact upon the sentencing discretion insofar as it addresses the need to protect the community from you, rehabilitation and specific deterrence. I accept that by reason of your mental illness, considerations of general deterrence, although relevant, carry little weight. Considerations of specific deterrence, although applicable, should nonetheless, be sensibly moderated.
Accordingly, having due regard to the nature and gravity of the three offences here committed, you are convicted and sentenced as follows. On Charge 1, the count of defensive homicide of Raymond William McCombe, 12 years’ imprisonment; on Charge 2, the count of defensive homicide of Toby Hayward Lynch, nine years’ imprisonment; on Charge 3, the count of without lawful justification or excuse, recklessly causing serious injury to Stephen William Mark, five years' imprisonment.
Although these three charges arose out the one incident, they nonetheless concerned three victims and three discrete offences. Accordingly, pursuant to s 16(1) of the Sentencing Act 1991, I propose to otherwise direct that the sentences be served as follows. Charge 1 is the base sentence, that is 12 years’ imprisonment; five years of the sentence imposed in respect of Charge 2 is to be served cumulatively on the base sentence, that is 17 years’ imprisonment; and three years of the sentence respect of Charge 3 is also to be served cumulatively upon the sentences so imposed on the base sentence, that is, 20 years' imprisonment.
In order to address your prospects for rehabilitation, such as they are, I order that you serve a period of 17 years’ imprisonment before becoming eligible for parole.
I declare that you have already served by way of pre-sentence detention a period of 931 days and I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, were it not for your pleas of guilty to the charges of defensive homicide and recklessly causing serious injury, I would have sentenced you to a total effective sentence of 25 years’ imprisonment with a non-parole period of 20 years.
0
2
0