R v Baxter

[2009] VSC 178

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1411 of 2008

THE QUEEN

v

JASON ANDREW BAXTER

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2009
DATE OF SENTENCE:	12 May 2009
CASE MAY BE CITED AS:	R v Baxter
MEDIUM NEUTRAL CITATION:	[2009] VSC 178

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CRIMINAL LAW – Sentence – Plea of guilty – Defensive homicide.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Kidd	The Office of Public Prosecutions
For the Accused	Mr P Morrissey	Ronald V Tait

HIS HONOUR:

1. Jason Andrew Baxter.  You have pleaded guilty to one count of the defensive homicide of Graeme John Falzon on 18 December 2007.  You were originally charged with the murder of Mr Falzon.  However, on 7 April 2009, the Crown filed over the murder presentment, with a new presentment containing the charge of defensive homicide.  On the same day, you were arraigned on that charge, and pleaded guilty to it. 

1. The offence, to which you have pleaded guilty, occurred in the following circumstances.  On 16 December 2007,  you came to Melbourne from Bendigo, where you had been living.  After you arrived in Melbourne, you resided with an acquaintance, Jack Ambrose, in a unit in Braybrook.  Just after midnight on 18 December, you were sleeping on a mattress on the floor of the lounge room of the unit.  The deceased man, Graeme Falzon, arrived at the unit, and knocked on the door.  Mr Falzon had previously resided at the address, and he attended on this occasion to collect personal property which he had stored there.  For that purpose, he had been driven to the address by a friend, Mr Grixti. 

1. After Mr Falzon gained entry into the unit, he had a conversation with Mr Ambrose, and then collected his belongings.  In the meantime, you went back to bed on the mattress.  Mr Falzon removed his belongings, and placed them on the front door step.  Mr Grixti collected them, and put them in the boot of his car.  Mr Falzon returned inside the unit, leaving the front door open behind him.  According to your record of interview, he stood at the end of the mattress, and confronted you, asking you what you were doing in his bed.  In response, you grabbed a knife, which you kept beside your bed, and stood up quickly, face to face with Mr Falzon.  At that point, Falzon punched you in the mouth with his right fist.  You responded by punching Falzon with your left hand, and stabbing him with the knife in your right hand.  In your interview, you were unable to recall how many times you stabbed or hit Falzon.  You told the police that Falzon just kept coming at you, trying to throw punches at you, and that you just wanted him to stop attacking you.

1. During the incident, you dropped the knife inside the lounge room.  Your altercation with Falzon continued, and you both moved towards the front door.  Mr Grixti was able to see Falzon and you punching and wrestling each other just inside the front door area.  While still wrestling, the two of you burst out of the house, into the front yard.  Falzon called out to his friends to come and help him.  Grixti alighted from his vehicle, and pushed the pair of you apart.  As you were only wearing a tee-shirt and your underwear, you went back inside and locked the door.  In the meantime, Falzon remained outside, displaying some signs of distress.  He was experiencing difficulties breathing. 

1. After a short time, you noticed that Falzon and his friends had not departed.  You opened the door, and demanded to know why he was still there.  At this stage, you had armed yourself with a saucepan and a knife.  Grixti made it clear to you that neither he nor Falzon were threatening you, and requested that you help him.  You told Grixti that he should take Falzon to hospital.  You put down the knife and the saucepan, and assisted Grixti to place Falzon on the seat of his vehicle.  Before returning inside the unit, you said to Grixti, “I didn’t mean it to come to this”.  Grixti conveyed Falzon to the Footscray Hospital.  Despite the endeavours of the doctors, Mr Falzon passed away shortly after 1.30 am. 

1. The post mortem examination conducted by the forensic pathologist revealed that Falzon died from internal blood loss, as a result of a single penetrating stab wound to the left side of his chest.  The blade had penetrated approximately 130 millimetres into the chest cavity.  In addition, Mr Falzon had sustained a further ten superficial stab wounds, mainly to the left side of his body and his left arm.  In your interview, you stated that you did not sustain any serious injuries, but that your jaw had been sore for a few days. 

1. Immediately after the incident, you departed from Mr Ambrose’s unit, and stayed that night with a cousin a short distance away.  On the next day, you returned to Bendigo by train, where you disposed of the knife, which you had used in the  fight with Falzon.  You remained in Bendigo until 24 December 2007, when you returned to Melbourne.  At that time, you were intending to catch a train to Brisbane.  Before you were able to do so, you were arrested by the police at Tottenham Railway Station.  In a lengthy record of interview that day, you made admissions to the police to the effect which I have already set out. 

1. The effect of your plea of guilty is that you have admitted that, in fatally stabbing Mr Falzon, you intended to kill him, or to cause him really serious injury.  The Crown has accepted that at the time of the stabbing, you believed that it was necessary for you to stab him, with that intent, in order to defend yourself from the infliction of death or really serious injury at the hands of Mr Falzon.  At the same time, by your plea of guilty, you have accepted that you did not have reasonable grounds for that belief.

1. By its nature, the offence of defensive homicide is a serious offence.  It involves the infliction of fatal injury to another human being with the intention of taking that person’s life, or of causing him or her really serious injury.  The maximum sentence of 20 years’ imprisonment, fixed by Parliament for that offence, indicates the gravity with which the law regards the offence for which you have pleaded guilty. 

1. In this case, there are a number of serious factors attaching to your offending.  Before the incident, you had already equipped yourself with a knife.  You told the police that you always kept a knife beside your bed for protection, when you slept in a foreign place.  Thus, before the incident commenced, and even before you had met Mr Falzon, you had a knife at the ready to protect yourself.  When Mr Falzon punched you, you reacted in a manner which was grossly disproportionate.  Mr Falzon was unarmed.  On your account, he had only struck you on the one occasion before you reacted, although he then kept coming at you.  In response, you inflicted eleven blows to him with a knife, including the fatal stab wound to his left hand side.  The degree of culpability of your offending is to be gauged by the disproportionate extent to which you overreacted to the danger, which you believed there was of Mr Falzon killing you or causing you really serious injury.

1. On the other hand, I also accept that there were a number of mitigating factors connected with your offending.  Immediately before the incident, you were half asleep.  You had come to Melbourne some two days previously, because of a domestic dispute with your partner, as a result of which you had been evicted from your home.  You had resorted to using drugs, and I accept that, at the time of the offending, your mind and judgment were somewhat clouded by them.  It is accepted that Mr Falzon was the aggressor, and there is evidence from the autopsy of an injury to his hand, which supports your statement to that effect to the police.  I also accept that you acted spontaneously and without premeditation, notwithstanding that you had already had a knife at the ready.  I also accept that immediately after you understood that Mr Falzon no longer posed a threat to you, you desisted from further fighting him, and assisted to place him into Mr Grixti’s vehicle.

1. The issue of your remorse is somewhat more problematic.  I accept that, once you understood that Mr Falzon was no longer threatening you, you immediately resiled from your intention to kill him or cause him really serious injury, and, instead, assisted him into Grixti’s vehicle.  However, your flight at that point militates against you being remorseful at that stage.  Your actions, in the ensuing five days, reveal that you were more concerned with the trouble in which you had placed yourself, rather than with Mr Falzon’s welfare.  I do, however, accept that after your arrest on 24 December 2007, you were remorseful, and that you were sincere in your acknowledgement to the police, in your record of interview, that what you had done was wrong.

1. After your arrest, you were cooperative with the police.  In the course of your interview with them, you made full and frank admissions.  It is noteworthy that you did not, in that lengthy interview, seek to exaggerate the level of threat posed to you by Mr Falzon, nor to understate your own actions.  I accept  that your plea of guilty is accompanied by remorse.  In addition, your guilty plea is, of itself, a mitigating circumstance of some moment.  You have spared Mr Falzon’s mother and three sisters the trauma of a contested criminal trial, and have also saved the community from the burden of the expense of your trial. 

1. As I have stated, nonetheless, the crime of defensive homicide is a serious crime, involving the intentional taking by you of the life of another.  Mr Falzon was a relatively young man with two children, and a life ahead of him.  You have deprived him of his right to life.  Further, I have read the victim impact statements of Mr Falzon’s mother and his three sisters, to each of whom he was particularly close, and by each of whom he was much loved and valued.  Their statements set out, in moving detail, the grief and anguish occasioned to them by your offending.  As a result of your actions, Mr Falzon’s mother has lost her only son, and his three sisters have lost their only brother.  While Mr Falzon was the primary victim of your offending, the statements of Mr Falzon’s family are a salutary reminder that there are other victims of your crime, who have been left to cope with the ongoing grief, trauma and loss occasioned by your wrongdoing. 

1. I turn, then, to your personal circumstances, from which, in my view, there are a number of factors, which are relevant to the sentence, which I am to impose on you.  In this regard, I was greatly assisted by the eloquent plea made on your behalf by Mr P Morrissey, and also by the thorough reports of Mr Bernard Healey, clinical psychologist, and Dr Lester Walton, consultant psychiatrist, which were tendered on your plea. 

1. You are 25 years of age.  Your background and history reveals that you have had a most unfortunate life, a disproportionately large amount of which seems to have been lived either in institutions or in custody.  When you were four years of age, your father was convicted and imprisoned for a double murder.  While you were still young, your mother commenced a relationship with a man who was particularly violent to her.  On many occasions you witnessed his violence, and when you tried to intervene, you were the subject of it yourself.  At the age of 12, you were placed in State care.  While in youth training at Turana, you completed the general certificate of education (which is the equivalent of Year 10), and gained some skills in welding and tiling. 

1. However, from a very early stage, you commenced using various illicit drugs.  You have smoked cannabis from the age of 12, and two years later you commenced to use heroin.  You have also taken cocaine, amphetamines and ecstasy .  Based on your history, it is hardly surprising that Dr Walton describes you as a drug dependent person. 

1. You have a number of previous convictions, both in the Children’s Court, and thereafter, which have resulted in various periods of detention.  Mr Morrissey told me that during three different periods while you have been at liberty, you have been able to engage in tiling and plastering work, and, during those periods, had endeavoured to remain free of drugs.  You had also played competitive football in the Bendigo League. 

1. At the age of 18, you developed a relationship, which lasted for two years.  As a result of that relationship, you have a six year old son, Tyler, with whom you remain in contact.  At the age of 20, you commenced a relationship with another young woman, Beth Thompson, by whom you have two sons, Connor aged 5 years, and Jordan aged 2 years.  As I have already stated you came to Melbourne on 16 December 2007, because you had had a dispute with Beth Thompson, as a result of which she required you to leave the home.  You still have contact with your youngest son, but your second son, Connor, lives with Beth Thompson’s mother, who does not allow him to have contact with you.

1. You do have a long record of previous convictions, which have been admitted by you.  In the period between March 2000 and February 2007, you came before the Courts on some 19 different occasions.  The large majority of the offences, for which you were sentenced, were offences of dishonesty, motor traffic offences, and some drug related offences.  However, you also have three previous convictions involving violence.  Two of those convictions were in the Children’s Court in March and April 2000.  More relevantly, in March 2006, you were convicted at the Magistrates’ Court at Bendigo on a number of offences, including intentionally causing injury and making a threat to kill.  For those two offences, you were sentenced to be imprisoned for a period of six months.  At the same time, you were sentenced in respect of a number of other offences, and your total effective sentence was of one year’s imprisonment, with a minimum of six months.  Mr Morrissey explained to me the circumstances in which the two offences of violence occurred.  The sentences imposed on you reflect that your offending at that time was of some gravity. 

1. On the other hand, I agree with Mr Morrissey that it is significant that on the 19 occasions on which you have come before the Courts, you have not once received a sentence involving a non-custodial supervision order.  Instead, on thirteen of those occasions, you have received a custodial sentence.  Furthermore, the sentences of imprisonment, which have previously been imposed on you, do not appear to have involved any significant periods during which you might have been eligible for supervision under parole.  That factor is relevant because, it supports the submission by Mr Morrissey that it is in the interests of the community and yourself that your sentence should give you the opportunity to qualify for a reasonable period of supervision upon your ultimate release back into the community.

1. On the occasion of your last period of imprisonment, it would seem that you were released in or about May or June of 2007.  Apparently, while in prison, you had been treated with Seroquel, which is a tranquilliser used to treat those suffering from schizophrenia.  However, Dr Walton did not diagnose you to be suffering from any form of current psychosis.  Mr Healey, on testing, found evidence of moderate depression and anxiety, and noted that, while in custody, you had been placed on a methadone program.  Mr Morrissey correctly acknowledged that there is no evidence which would support any mitigation of your sentence, based on any psychological or psychiatric condition suffered by you.  On the other hand, I do note that your current term of incarceration has been quite onerous.  It appears that during the last nine months you have been required to be placed in protection in the Banksia Unit of Barwon Prison.  As a result, you have not had the access to programs and other facilities which are available to other prisoners.  You have had limited contact with your eldest and youngest sons, and no contact with your middle son Connor. 

1. The question of the prospects for your rehabilitation is somewhat problematic.  In his report of 7 April 2009, Dr Walton observed that you do not appear to have commenced a process of psychological maturation which is important to your rehabilitation.  On the other hand, Mr Healey in his report of 6 September 2008, was of the opinion that had you been granted bail, you would have been likely to comply with the terms of it.  Your lengthy and repetitive history of offending does not inspire me with significant confidence as to your prospects of rehabilitation.  However, it is fair to observe that, so far in your life, you have had little by way of expert assistance or supervision.  Your addiction to various drugs would, I apprehend, have been a substantial barrier to your remaining free of trouble over the last eight years.  The fact that you are undergoing a Methadone programme supports the view of Mr Healey, and gives reason for some cautious optimism for your future prospects, provided that you receive the appropriate level of supervision. 

1. As I have already stated, notwithstanding the mitigating circumstances attached to your offending, I consider that your offence is a serious one, and proper sentencing principles require me to treat it as such.  In particular, it is necessary that the sentence which I impose on you should adequately reflect the gravity of your wrongdoing, and be appropriate to express the condemnation by the Court and the community of your offending.  In addition, it is important that the sentence be sufficiently severe to constitute a deterrent to others, who might be minded to act in a similar way as you did, as well as to be a specific deterrent to yourself.

1. On the other hand, I am persuaded to fix a sentence which gives some weight to your rehabilitation.  I also consider it is appropriate to fix a reasonable period during which you might become eligible for parole, which is a little longer than usual.  I have reached that conclusion for five main reasons.  Firstly, it is clear that you have not had the opportunity, in the past, to have available to you close supervision while you are in the community.  Secondly, you do have some skills, which you have previously been able to put to good use when at large in the community.  Thirdly, you have family support, and support from other members of the community in Bendigo, who would be able to assist you to rehabilitate.  Fourthly, you have acknowledged your wrongdoing and, by your plea of guilty, have accepted responsibility for your actions.   Fifthly, and most importantly, you are still relatively young.  It is in the community’s interest that the sentence of imprisonment, which I impose on you, be so structured to maximise the prospect that you do not re-offend after you are released into the community, and to ensure that you receive adequate supervision to ensure that, in the community’s interest, you do rehabilitate yourself.  Such a sentence would also caste on you the onus to ensure that you conduct yourself in prison in such a way that you qualify for parole when your minimum term expires.  At the same time, it is important that during your term of imprisonment, you undertake programs which address your underlying drug problem, and also teach you anger management skills. 

1. Accordingly, for the crime of defensive homicide, you are sentenced to be imprisoned for a period of 8 years and 6 months. I fix a minimum non-parole period of 5 years and six months. Pursuant to s 18(4) of the Sentencing Act, I declare that the period to be reckoned as already served, and to be noted in the records of the Court, is the period of 505 days pre-sentence detention. 

1. As I have stated, I have taken into account your plea of guilt, as a mitigating circumstance. I am bound, by s 6AAA of the Sentencing Act, to state the sentence which I would have imposed on you, if you had not pleaded guilty.  That is a difficult task, because of the interrelationship of your plea of guilt with issues such as remorse, cooperation, and rehabilitation.  However, doing the best I can, if you had not pleaded guilty, I would have imposed a sentence of 10 years’ imprisonment, with a minimum non-parole period of 7 years.