R v Blackburn
[2006] VSC 246
•7 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1402 of 2005
| THE QUEEN |
| v |
| DARREN JASON BLACKBURN |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2006 | |
DATE OF SENTENCE: | 7 July 2006 | |
CASE MAY BE CITED AS: | The Queen v Blackburn | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 246 | |
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CRIMINAL LAW – Manslaughter – Aiding and abetting – Sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C G Hillman SC | Solicitor for Public Prosecutions |
| For the Accused | Mr D Drake | Regan Richards |
HIS HONOUR:
Darren Jason Blackburn has pleaded guilty to a charge of manslaughter relating to the killing of Graham Leonard Band on 1 February 2004. The offence carries a maximum penalty of 20 years’ imprisonment.
Band was known as “Banjo”. He was 62 years of age at the time of his death. The killing took place in his first floor Housing Commission flat at 127 Gordon Street, Footscray.
Blackburn and Band had known each other for several years. In early 2001 Blackburn and Lenore Henry moved into Band’s flat which was then on the fifth floor of 127 Gordon Street, Footscray. While they were living in Band’s flat, Ms Henry became pregnant. She and Blackburn went out one night to celebrate the fact. She maintained that Band raped her in the flat after they returned either on that night or in the following early morning. She did not tell Blackburn for approximately two weeks. When she did, he assaulted Band. Ms Henry also alleged that Band had attempted to rape her on a later occasion in the absence of the prisoner. Notwithstanding these events, they remained in Band’s flat until the fifth or sixth month of the pregnancy when they moved to Western Lodge also in Gordon Street, Footscray. They stayed there for approximately two-and-a-half months before moving to a unit in Somerset Drive, Sunshine. Their relationship broke down in January 2004 resulting in Blackburn moving out and moving to live either in Band’s apartment or that of a friend named David Armstrong in the same building. Both Band and Blackburn also knew a man by the name of Tasman O’Connor. He also lived with Band. He owned a samurai sword which he had taken with him into Band’s flat.
On the day prior to the incident, 31 January 2004, an incident occurred in which Band was assaulted. This resulted in swelling over his right eye, a laceration to the back of his head and cuts to the face. It appears that both Blackburn and O’Connor were involved. It is not clear, however, precisely what role each played. That afternoon, however, Blackburn told Ms Henry at Armstrong’s flat, that he and O’Connor had bashed up Band. Blackburn spent that night at Armstrong’s flat. O’Connor spent the night at Band’s flat.
On the following day, 1 February 2004, the day of the killing, Blackburn was observed at a hotel in the morning, drinking at the bar. He also purchased three bottles of beer from that hotel. He was observed arriving back at the flats drinking one of those bottles with another one under his arm. There was some evidence of further consumption of alcohol at the flats.
Shortly after midday, Blackburn rang Ms Henry a few times wanting her to go to the flats. They asked her to help. At 13.07 that day there was a triple 000 call from Band’s flat seeking the attendance of an ambulance. The fire brigade arrived first in response to the triple 000 call and found Band lying on his bed. Their attempts to revive him ceased with the arrival of the MICA unit which established that he was in fact dead. The body was still warm and the blood had not congealed. There were two penetrating wounds to the chest. There was also significant other trauma. An examination of the room revealed some blood spattering and a linear scrape mark on the ceiling consistent with the samurai sword having been dragged across it. A light bulb was broken. Blood was found on the samurai sword which was later matched with that of Band. There was plaster on the tip of the sword and the tip was damaged. Dr Lynch, the forensic pathologist who conducted the post mortem, found that Band had died as a the result of a stabbing injury to the chest which penetrated the heart. There were two penetrating wounds to the chest one on the right and one on the left which penetrated the heart. There was also a stabbing injury to the middle chest which did not penetrate the chest. He also found seven incised injuries to the body caused by a sharp-edged object. There were also some incised injuries to the hands, described as defensive injuries. There was bruising consistent with Band having been struck with the blunt side of the sword on his left shoulder.
The Crown is not in a position to point to either Blackburn or O’Connor as the person who struck the fatal blow to the heart. The Crown has had to proceed against both men on the basis that whichever one of them struck the fatal blow, the other aided and abetted the commission of the killing. The proceeding against O’Connor resulted in a not guilty verdict. Counsel for the Crown explained that result on the basis that the critical evidence was admissions made by O’Connor to Armstrong and that Armstrong proved to be a witness who could not be relied upon, a reality conceded by prosecuting counsel to the jury in the trial against O’Connor.
There appear to me to be dangers in proceeding for the purposes of sentencing on the basis that one or other of the two men struck the fatal blow and the other aided and abetted. The reality is that the Crown cannot prove that Blackburn struck the fatal blow. In those circumstances, it seems to me that the prudent course is to proceed for the purpose of sentencing on the assumption that it was O’Connor who struck the fatal blow and he was aided and abetted in the killing of Band by Blackburn. It is in any event the more likely scenario. Blackburn’s plea of guilty, therefore, should be treated as involving an admission that he aided and abetted the person who struck the fatal blow in killing Band.
Looking first at the objective seriousness of the actual offence, counsel for the Crown submitted that I should come to the conclusion that the offence lies in the middle to upper level of the range of seriousness. Counsel for Blackburn submitted that it was, while serious, below the middle range.
The main evidence of what occurred is to be found in the somewhat limited responses of Blackburn in his record of interview. In that interview he said that he and O’Connor were at Band’s flat when the issue of the alleged rape of Ms Henry came up. Blackburn raised the issue of Band apologising to her. Band replied “fuck the bitch”. Then, as Blackburn put it, the “shit hit the fan”. It appears that Band was first attacked by O’Connor who picked up a coffee table and hit him with it. Blackburn then punched him about three times, as a result of which Band finished up on the floor. When Band was on the ground, O’Connor hit him with the samurai sword using it like a baton - using the back part of it. Blackburn could not say how many times O’Connor hit him with it. It appears that he was then stabbed with the sword. Blackburn did not, in his interview, acknowledge the stabbing but in answer to the question of what happened when Band was hit with the sword, Blackburn said that,
“... then he was just completely fucked and rooted. So I picked him up and threw him on his bed. He was choking on - on his blood and that, and gasping.”
Blackburn admitted that he then put a pillow over Band’s head. He said he did this to shut him up. He acknowledged that he held him down. He said he did not hold him down for very long. When asked further questions about the pillow, he said that he was “... sick of fucking listening to him.” When asked to explain, he said, “Oh his chokin’ and shit on his - whatever he’s chokin’ on. His gaspin’ was just - the noise was just unreal.” He said he had blood coming out of his mouth and he thought his eyes were shut. He said when he held the pillow over his head Band did not put up any struggle. After a short period he said he got O’Connor to check him and O’Connor told him that he was dead. He said that he was hoping that he was alive but he was not. He said, “I didn’t wanna fuckin’ kill him.” Later asked again about the pillow, he said that when he put it over his face he thought he was dying and thought that maybe he “might be able to give him a hand, because he was making too much friggin’ noise”. Having decided that he was dead, the two men went upstairs to the flat of Armstrong.
I accept the Crown submission that this was an armed attack by two men on a defenceless man in his own home. Blackburn was plainly an extremely willing participant in the joint attack. It is true that there is nothing in the record of interview of Blackburn that contains an acknowledgement by him of witnessing the stabbing. He was well aware that the sword was being used to attack Band and he witnessed everything else including the aftermath of the stabbing. While Band’s response to the approach by Blackburn for an apology was provocative it provides no excuse for what followed. I am satisfied that Blackburn was directly involved at the very early stage in the attack, notably when he punched him three times after the coffee table incident, causing him to fall to the ground. The grievance was his and he willingly participated in the punishment of Band. In all the circumstances, it seems to me that, in assessing the gravity of the offence committed by him on this occasion, it does fall within the middle to upper level of seriousness of offences of this kind.
I note that there are no victim impact statements in this matter. It appears that Band has two younger sisters but he has had no contact with them for 20 or more years. He has no other family.
Turning to matters personal to Blackburn, he has had since 1998 a number of convictions for a variety of offences. In particular he has been convicted twice on counts of theft. He also has a conviction for being found in possession of property suspected as being the proceeds of crime (two charges) and obtaining property by deception. He has convictions for a number of offences relating to what appears to have been drunken behaviour on public transport. He has a conviction for failure to comply with a community based order and failure to answer bail. On 12 December 2001 he was convicted of intentionally causing serious injury by the County Court and received a six month sentence to be served by way of intensive correction order. He breached that order and was ordered to serve the unexpired period of 69 days.
Counsel for Blackburn did not address me about these matters. This is understandable when regard is had to this man’s background and history and his mental, psychiatric and substance addiction problems are considered. They simply are manifestations of those problems.
He is 34 years of age. He was born in New Zealand. He grew up initially in a family where the father drank heavily, used cannabis and was violent. His father left the family when Blackburn was six. He was, however, very upset by his father’s departure. His father has spent much time in jail in New Zealand. Blackburn was effectively brought up by his mother. There were four children in the family. One is a sister who is intellectually disabled and has the mental age of a six year old. She has had a number of children, is married, but is cared for by their mother and the children by their father. He has a brother who is divorced and who has a problem with substance abuse – he has no contact with him. He has another brother who died of cancer at the age of six. They were very close and his death was traumatic.
His education was very poor. He performed very poorly at school. He could not see the point and regularly truanted. As a result, at the end of his schooling, even though he was moved on each year, he could not read or write. He has in fact been taught to read and write while in custody. He started smoking marijuana at the age of 12 or 13, having five joints per week - graduating to half an ounce per week which has been his standard intake. When he was still a boy, he started taking anti-psychotic pills which he obtained from another boy. These made him feel calm. At the age of 15 to 16 he was apparently drinking something like four or five bottles of wine a night. He drank it quickly to the point where he blacked out or fell asleep. He reached the point where his drinking and substance abuse was extreme.
On leaving school he had some haphazard employment in a variety of positions generally of short duration. He worked as a window tinter, making Venetian blinds, manufacturing jackets and did some work at cobblestone paving. His life, however, revolved around the consumption of alcohol and drugs. He had received some psychiatric treatment in New Zealand.
He came to Australia at the age of 24. He was not receiving psychiatric treatment at that time. He came with his then partner, Louise, with whom he had formed a relationship. She was pregnant with their second child and they brought their first born child with them. He tried to change his habits but he was still drinking significantly and would often go on binges that could last for weeks. He would drink between two to four litre casks of wine a day and would drink one or two slabs of beer throughout the week and taking marijuana at the same time.
His first job in Australia was at the Aussie Liquor Mart and he was responsible for moving alcohol around the establishment. He effectively drank throughout the day, drinking the alcohol on the premises. He was apparently able to consume large amounts of alcohol without obvious signs of ill-effects. The job at the Aussie Liquor Mart continued for 18 months. He was caught a number of times either intoxicated or stealing alcohol and was given a number of chances. After 18 months, however, he simply did not turn up for work. Apparently at that point his relationship with Louise had ended and she had had enough of him and his drinking. He went on a binge on the break up of the relationship and was drinking even larger quantities of alcohol than usual. That passed. He then found employment with Bonlac, loading containers on a casual basis. He received cash in hand for that work and that, together with unemployment benefits, enabled him to keep purchasing alcohol. He would, on average, consume two casks of wine at night, costing him approximately $15.00.
At this stage, he was homeless. Initially he was living in a tent on the riverbank at Werribee. One day the tent was destroyed and he commenced living behind a local church until that area was boarded up to prevent him gaining access. He then wandered the streets sleeping wherever he could. He was found accommodation in a hostel for the homeless at Footscray. He then tried to make contact with his children and it seems that that has now been achieved and he writes to them often and they write to him.
After a period at the home in Footscray, he was found a flat. His dole money was largely spent on alcohol and drugs and he spent very little on food. He then moved into the flat of what his counsel called a “kindred soul” in Werribee and got some employment loading containers. With the cash in hand and dole payments he continued his drinking but became so badly affected that he was admitted to a detox centre. He remained there for seven days. Upon his release he resumed his large consumption of alcohol.
It was at this stage that he moved into a house in Seddon and made the acquaintance of Band. The two of them lived in the accommodation in Seddon. Asked as to their relationship, Blackburn said that they both “just drank”. Through an acquaintance he met Ms Lyn Henry who was eventually to have his other child, Summa. They moved in with the deceased into the Footscray flat they having nowhere else to stay. They stayed there with him for about a year during which time both he and Band consumed large quantities of alcohol. The circumstances in which Blackburn and Ms Henry were living with Band were extremely difficult. There was only one bedroom and they were sleeping on the floor. After a year the arrangement with Band terminated. At that point, Blackburn had not found out about the rape allegation. He and Ms Henry went into accommodation in the Lodge in Footscray where they stayed for three months. Housing was then found for them in Sunshine and they were living there when their daughter, Summa, was born.
At that time Blackburn obtained a job working for an air-conditioning company. He was a sheet metal worker and was taught on the job. He was, however, still drinking considerable amounts of alcohol. He was drinking more and more and had a falling out with Ms Henry, following which he went to live with Armstrong in the same block of flats as that in which Band lived. At that time O’Connor was living with Band.
Blackburn has not in the past confined himself to excessive consumption of alcohol and marijuana. He has abused amphetamines, ice, ecstasy and prescription pills such as Rohypnol and Valium. Some four or five years ago he also began using heroin on a regular basis.
Reports have been provided for Blackburn by psychiatrists, Dr Walton and Dr Sullivan, and by psychologists, Mr Cummins and Ms Lechner. His testing by Ms Lechner and Mr Cummins by IQ tests reveals him to be in the low average range with between 84 to 88 percent of the population performing better at the tasks involved. His memory quotient suggested a very poor short-term memory.
Following his admission into custody, he was diagnosed as suffering from paranoid schizophrenia and has been receiving treatment with anti-psychotic medication. It appears that he was diagnosed with schizophrenia in New Zealand. He reported to Dr Sullivan that from approximately the age of 15 years he had experienced auditory hallucinations with a persecutory or derogatory content. He also reported to Dr Sullivan that as a consequence of hearing voices he had at times assaulted strangers in the street and felt hatred towards people. In New Zealand he had been treated with chlorpromazine an anti-psychotic medication. Currently he is taking clozapine at a dosage of 650 milligrams a day which is apparently a high dosage. He has been on that medication since approximately March 2005. He was assessed at St Paul’s psychiatric unit on 30 November 2004 but a definitive admission did not occur until 17 June 2005. He had at that stage become suicidally depressed and was assailed by auditory hallucinations again. Dr Walton, who also assessed Blackburn, reported that there had been a recurrence of depression recently with the result that in early May 2006 his anti-depression medication of Avanza was increased to 60 milligrams daily. As to his current psychotic medication, clozapine, Dr Walton has commented that Blackburn’s psychiatric illnesses have proved to be rather treatment-resistant and therefore resort has been had to clozapine which he describes as not being a medication of first choice because of its potential serious side-effects. He comments however that considerable gains have been made and that residual symptoms at present are of modest proportions compared to the symptoms when he was treated.
Counsel for Blackburn submitted that his low IQ results place Blackburn in the category of persons who are mentally impaired. Counsel relied upon the principles referred to in the case of R v Richards and Gregory[1] where Winneke P in referring to offences involving the application of objective standards commented:
[1][1998] 2 VR 1, 9.
“...persons, who either because of their background or subnormal intellect or both, cause death by grossly negligent conduct will be usually adjudged of lesser moral culpability simply because for the purposes of punishment their standards cannot be equated with those of a reasonable person.”
Counsel put that his low IQ and poor socialisation skills significantly disadvantaged him in the circumstances in which he found himself in making judgements and decisions. Counsel went further, however, and argued that his history of abuse of substances, psychiatric illness and intellectual disability in combination contributed to the tragic events. Counsel relied upon Dr Walton’s comments that:
“This man has an established diagnosis of chronic schizophrenia. In addition from time to time he also suffers from diagnosable depression...
These mental illnesses occur on a background of lengthy and substantial poly-substance abuse and I suspect that Blackburn has a degree of acquired brain injury, he certainly is of dullish intelligence.“
Dr Walton went on to refer to his conclusion that notwithstanding the mental illness and impairment a defence of mental impairment was not available (also despite the history of auditory hallucinations). He went on to say:
“However it is proper to state that he is suffering from a chronic severe and disabling psychiatric illness which often may give rise to a defence of mental impairment and the illness probably has some relevance in terms of non-specific erosion of the capacity to consistently and properly exercise social judgement. For example, it would seem to be the case that Blackburn was aggrieved in relation to the manner that the deceased had sexually assaulted Blackburn’s partner, who more adjacent to the killing, refused to supply an apology and uttered further offensive remarks, and thus the anger which any normal person might experience in relation to those issues may well have been more readily overtly expressed by a person suffering from schizophrenia. It certainly is my view that fundamentally this man’s aggressive behaviour was not the direct product of his mental illness, but the schizophrenia might be seen as having some indirect relevance, with at least some amelioration of culpability.”
I note that Dr Sullivan expressed views similar to those of Dr Walton. I note his comment, however, that Blackburn appeared to him to be suffering from a major depressive disorder of mild to moderate severity and would also have a diagnosis of poly‑substance abuse as recognised by DSM-IV-TR. He commented that the use of cannabis and amphetamines is relevant due to their effect in promoting psychosis, depression and anxiety as well as impairing judgment. He also was of the opinion that his abuse of alcohol was likely to have impaired his judgment and capacity to control his behaviour. Counsel for Blackburn also relied upon the following conclusions of the psychologist Ms Lechner who said:
“Blackburn impressed as cognitively and emotionally immature. It is unclear if this is a function of his mental health problems and therefore representative of cognitive deterioration or representative of his premorbid functioning. He finds it hard to both identify triggers to his negative feelings and to appropriately express them. He stated that he does not like reality because it is depressing, ‘its depressing... I don’t want to be here, there’s nothing for me... the world seems fucked, there’s no reason I should be here’... Blackburn has tended to respond to stress, anxiety and low mood state by increasing his use of drugs and alcohol. His coping strategies are very limited.”
In light of this evidence, counsel for Blackburn submitted that it is relevant to consider the often quoted statement of the Court in R v Tsiaras[2]. The Court stated:
“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”
As I understood the submissions of his counsel, reliance is placed in particular on the first, third and fourth points.
[2][1996] 1 VR 398 at 400.
The Crown accepts that the propositions stated in Tsiaras apply to Blackburn in view of the above material from expert assessment. His psychiatric illnesses and mental impairment are of long-duration and it should be accepted affect his judgment and ability to react appropriately. In those circumstances his moral culpability is reduced and he is a less appropriate vehicle for general deterrence. Counsel submitted, however, that it was necessary to take a sensible approach to this issue of the effect of these matters in the moderation of culpability and the operation of the objective of general deterrence.[3] Counsel submitted that it was not a case where the person convicted did not understand the nature and quality of the conduct or what he was doing was wrong. It was not a case where he was not able to reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. Counsel for the Crown submitted that it is necessary to analysis the nature, severity and effect of the condition when considering the issue of the reduction of moral culpability and the significance of general deterrence as a sentencing objective. I accept those propositions.
[3]R v Yaldiz [1998] 2 VR 376, 383.
It must be acknowledged that the evidence points to a reduced and damaged mental capacity to exercise judgment appropriately. But the psychiatric and mental disabilities while reducing and damaging his capacity still leave him with sufficient capacity to make general deterrence a relevant purpose of sentencing in this case, albeit moderated. He also remains morally culpable although that aspect too is moderated.
As to specific deterrence, that same reduced and damaged mental capacity makes it very important that the sentence address the need for specific deterrence appropriately. While his reduced and damaged mental capacities may reduce the effectiveness of a term of imprisonment in deterring him in the future from such criminal conduct, he has sufficient capacity for it to have some impact on his behaviour. Specific deterrence is therefore an important consideration.
Turning to purely mitigating factors, counsel for Blackburn submitted that a mitigating factor to be considered was that he had been in custody for nearly two-and-a-half years awaiting finalization of this matter. Counsel referred to Miceli[4] where Tadgell JA said that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of the prisoner being sentenced. Counsel also referred to the proposition stated in that case that the issue did not depend on the delay being inordinate. Part of the two-and-a-half year delay has occurred on and between 9 August 2005 and 16 February 2006. On 9 August 2005, Blackburn pleaded guilty to murder at the joint trial with O’Connor. Some uncertainty then followed while his counsel investigated the issue of whether he wanted to change his plea and whether a defence of mental impairment was available. This culminated on 14 February 2006 with counsel informing Kaye J that Blackburn wished to withdraw his plea of guilty. The matter then came before his Honour on 16 February 2006, at which hearing, leave to withdraw the plea was given. Thus a period of six months was taken up with that problem. It needs to be borne in mind, however, that while it may be said that he was responsible for that period of delay, it was a direct consequence of the very psychiatric and mental disabilities that have been identified and it was those conditions which in the end persuaded Kaye J that leave should be given to withdraw the plea of guilty. The fact is that the matter has been awaiting trial or disposal for some two-and-a-half-years.
[4][1998] 4 VR 588.
An important matter to be borne in mind in sentencing Blackburn is that he has pleaded guilty. It is true that he has come to that position late in the piece. But his psychiatric and mental problems must have created major difficulties in advising him and enabling him to make his decision to offer to plead guilty to manslaughter. His plea of guilty should be recognised by an appropriate reduction in the sentence that should otherwise have been imposed. As to the issue of remorse, his counsel submitted that he had shown himself to be genuinely and relatively quickly remorseful. This was not challenged by the Crown.
In this case, we have a serious example of a very serious offence. Its objective seriousness is in the middle to upper range of seriousness for offences of this kind. In considering issues of punishment, denunciation and general deterrence, Blackburn’s mental incapacities are such that this case does not warrant what would otherwise be a punishment to reflect full moral culpability or the full requirement of general deterrence and denunciation. The force of those objectives must be tempered. Specific deterrence, however, remains a significant factor and should be given full recognition. The issue of rehabilitation as a sentencing objective does not appear to arise specifically in this case. No argument has been put to me as to how rehabilitation could be facilitated in this case. This raises another matter of concern. Unless there can be some improvement in this man’s capacities, he remains a danger to the community. Thus, the only way it would seem that the sentencing purpose of protecting the community can be met is by requiring him to serve a term of imprisonment. I have not had drawn to my attention any issues about possible difficulties of serving the term of imprisonment that must be imposed because of Blackburn’s psychiatric and mental problems. Allowance, however, must be made for the mitigating effects of the plea of guilty and the remorse that he has shown.
The events in question carries a maximum penalty of 20 years’ imprisonment. In my view the varied purposes of the sentence that should be served in this case, after due allowance of the mitigating factors, warrant a term of imprisonment of nine (9) years and a non-parole period of six (6) years. In my view such a sentence is proportionate to the crime.[5]
[5]R v Veen (1988) 164 CLR 465.
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