R v Blackwell
[2013] VSC 499
•13 September 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0114
| THE QUEEN | |
| v | |
| KELLY BLACKWELL | Accused |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2013 | |
DATE OF SENTENCE: | 13 September 2013 | |
CASE MAY BE CITED AS: | R v Blackwell | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 499 | |
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CRIMINAL LAW – Manslaughter by negligence – Attempt to obtain property by deception – Pleas of guilty – duty of care owed – savage, prolonged bashing by co-accused – No intervention despite duty of care – Attempt to access deceased’s bank account using his ATM card – Deprived and troubled background – Diagnosed with depression, anxiety and post-traumatic stress disorder – Expression of remorse and regret – TES: 4 years’ imprisonment with a non-parole period of 2 ½ years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson | Office of Public Prosecutions |
| For the Accused | Mr R Thyssen | Victorian Aboriginal Legal Service |
HER HONOUR:
Kelly Blackwell, you have pleaded guilty to one count of manslaughter and one count of attempting to obtain property by deception, and have admitted prior matters, none of which are relevant for these purposes.
In September 2011, you had known the deceased, Leon Douros, for approximately 12 months. He had separated from his wife and two children, and you and he had been living at his parents’ house in Ellen Street, Springvale, for 3½ months while they were overseas.
You described yourself as Mr Douros’ partner. You accompanied him on access visits to his children and assisted him in his endeavours to obtain greater access to them. In August 2011, you accompanied Mr Douros to his GP, where he sought treatment for depression and alcohol dependence. On 7 September 2011, you again accompanied Mr Douros to his GP and, on this occasion, a Centrelink carer’s allowance form was completed by the doctor on your behalf and that of Mr Douros. The role of carer was explained to you by the doctor, and subsequently you sent that form to Centrelink. They in turn acknowledged receipt of and requested the completion of further documentation in order to commence making payments to you. The Crown relies on the totality of this evidence as indicative of the nature of your relationship with Leon Douros. It was such that, at the time of his death, you owed him a duty of care.
In the week preceding 24 September 2011, Damien Van Zoelan, whom you had known for some 18 months and had previously been his registered carer, came to stay with you and Leon Douros at the Ellen Street house. It appears that in that time there was some tension between he and Leon Douros. On 21 September 2011, apparently in order to escape that tension, you booked a room at the Parkside Inn Motel, Bundoora. The booking was made for three nights. You and Van Zoelan had stayed there many times before, and on that day, the two of you checked in and, although the booking was made for two, Leon Douros also stayed in that room with you. The three of you went out that night to a local hotel and then returned to sleep at the motel. The next day, the three of you again left the motel and went to another local hotel. Mr Douros bought a bottle of bourbon at a licensed outlet and, upon returning to the motel room, everyone began drinking. Damien Van Zoelan and Mr Douros started arguing, which continued throughout the night. The next day, the three of you drove around the Greensborough/Eltham area, shopping, playing the poker machines and dining at a local hotel. That night, Mr Douros again purchased a bottle of bourbon and also a bottle of scotch whiskey. All three of you returned to the motel, and shortly after 11 o’clock Mr Van Zoelan and Mr Douros left the motel and went across the road to the nearby service station, where they purchased food and soft drinks. CCTV footage shows them talking and walking amiably in each other’s company. They went from the service station back to the motel room, where all three of you commenced drinking. You later told the police that you drank three Jim Beams.
During the night, you spoke a number of times on the phone and texted a man you knew as “Matt”, whom you had met on the internet and who lived in Indiana, USA. During these calls, Matt was later to say that he could hear Mr Douros flirting with you and you rejecting his advances. He could also hear Mr Van Zoelan getting mad, followed by a commotion, including the sounds of hitting, punching and slapping, which went on, he said, for between five to ten minutes, and then Matt heard Mr Douros yelling and begging Mr Van Zoelan to stop and for someone to help him. At no stage did Matt hear you trying to intervene or stop the attack by Mr Van Zoelan on Mr Douros. Nor did Matt hear you being threatened by Mr Van Zoelan. The Crown contend that during this time, Mr Van Zoelan engaged in a savage attack upon Mr Douros which resulted in his death. This attack was witnessed by you, and at no time, despite being under a duty of care to Mr Douros, did you seek to effectively intervene. The attack was a sustained one, and it would have been obvious to you that Mr Douros was seriously injured and in urgent need of medical attention. His laboured breathing could be heard by other residents of the motel.
At 1.49am, you text Matt, “I have to take Leon to hospital”, and at 1.50am, Matt texted back, “How bad your bro?”, to which you replied at 1.51am, “Pretty bad”. Mr Van Zoelan at this time also texted a friend, stating, “Taking a mate to hospital”. So it would appear that both of you appreciated the necessity of medical intervention, but in fact neither of you did take Mr Douros to hospital. Instead, at around 2.00am, you and Mr Van Zoelan put Mr Douros into the back of the car and drove back to Ellen Street, Springvale, but you became lost along the way and the journey took over two hours. Certainly by the time you got to Ellen Street, Mr Douros was dead. You and Mr Van Zoelan placed his body on the floor of the loungeroom of the house in Ellen Street, covered it with a blanket and then Mr Van Zoelan rang 000, giving the operator a false account of what occurred.
You participated in a charade, pretending to perform CPR on Mr Douros, consistently with the operator’s instructions. The ambulance paramedics arrived at 5.00am. You and Mr Van Zoelan gave them a false account of what occurred. Later that day, the police obtained a witness statement from you and, after being spoken to by the police, you went you went to the RSL at Springvale and there attempted to access Mr Douros’ account using his card at the ATM, which is the subject of the second charge on the indictment.
On 30 September 2011, you were interviewed by the police and, on that occasion, your earlier witness statement was read to you and you sought to clarify certain aspects of it. You told the police that Van Zoelan was punching and kicking Mr Douros, and you could see bruising on Mr Douros’ shoulderblades, ribs and thigh, and bleeding on his nose, which you wiped with a tissue, and that you tried to tell Van Zoelan that that was enough. You also told the police that the assault occurred over four episodes, which in total endured for half an hour, and that you could not rouse Mr Douros when you spoke to him, and that he had been making grunting and wheezing sounds and struggling to breathe. You also acknowledged to the police that if you had helped Mr Douros, he would have had a chance of survival.
The pathologist, Dr Ranson, subsequently determined that Mr Douros had sustained multiple injuries, including multiple fractured ribs and intraperitoneal and retroperitoneal haemorrhaging from a rupture of the liver and kidneys, causing death. Dr Ranson opined that the likely cause of all of the injuries was blunt trauma and some compressing trauma, and that a very significant amount of force would have been required to have caused the injuries. Dr Ranson was of the opinion that Mr Douros would have survived the injuries without medical attention for something less than an hour.
Mr Douros was 42 years old. He was married, although separated from his wife, and was the father of two young boys. Victim impact statements were tendered on behalf of Mr Douros’ mother and father, Dimitra and Stavros Douros, his wife, Nektaria Douros, his brother, Efrosini Haralambopoulos and his son, Steven. Steven’s two victim impact statements were also supported by a report from a psychologist with whom he has been receiving counselling. Steven has been very traumatised by his father’s death and is described as being scared and angry. All of these statements speak eloquently of the victims’ grief and loss and the impact that the deceased’s death has had on them. No sentence this Court can impose can restore to them their loved husband, father, son and brother.
The maximum penalty for the crime of manslaughter is 20 years’ imprisonment and for the crime of attempting to obtain property by deception, five years’ imprisonment. Sentences for the crime of manslaughter are extremely variable, as are the manifold ways in which the crime itself may be committed. Manslaughter by negligence is a “relatively unusual instance of the crime”. The crime is one of causing death by actions which fall so short of the standard of care which a reasonable person would have exercised in the circumstances and which involved such a high risk of death or serious injury that the conduct merits criminal punishment.
By your plea of guilty to manslaughter by negligence, you acknowledge that your failure to intervene in the assault and to seek medical intervention for Mr Douros consequent upon the injuries he had sustained fell short of the standard of care that a reasonable person would have exercised in the circumstances and involves such a high risk of causing death or really serious injury that it warrants criminal punishment. All of this must have been apparent to you, because you were in the room when the assault was occurring and saw that Leon Douros was being subjected to a savage beating by a man who was considerably taller and of much bigger physique than Mr Douros, who was comparatively small in stature, and that Mr Douros did nothing to defend himself against the attack and thus took the full force of Van Zoelan’s assault upon him. You told the police that you saw blood and wiped Mr Douros’ nose with a tissue, but you did nothing else, and as stated, other residents in other rooms at the motel could hear Mr Douros’ laboured breathing, which they described as snoring, so you, in the same room as he, must have known that Mr Douros was at least badly injured and knew that his condition required medical attention, but you did nothing to obtain it, and no reason has been put forward as to why that is so, other than your judgment must have been impaired on the night, as undoubtedly it was. As to the second charge on the indictment, you told the police that after providing the witness statement to them, you went with a friend to an RSL, you wanted a drink, but did not want to ask your friend for money to purchase it and, in those circumstances, you attempted to access Mr Douros’ account at the ATM. You failed to do so because you could not remember the correct PIN.
I turn now to matters personal to you. You are 33 years old. You were born and raised in New South Wales. You have a half-brother and half-sister. You have never known your father and you last spoke with your mother three years ago. You acknowledge your Koori heritage.
When you were three, your mother formed a relationship with a Mr Blackwell. He was an extremely violent man and you suffered physical, mental and possibly sexual abuse at his hands. At the age of 11, your grandparents removed you from that environment and provided you, until the age of 18, with stability, kindness and affection. You attended the Liverpool Secondary College until Year 10 and then completed a TAFE course in Office Administration, but life after the TAFE course began to unravel. You were raped and became pregnant at the age of 18. You gave birth to Amanda, now aged 15, who now lives with your grandparents. You then formed a relationship with a man who was violent towards you. This relationship produced three children now aged 11, 10 and 7, all of whom are in the care of the Department of Community Services in New South Wales. You then formed a relationship with another man who was also violent towards you, and this relationship produced a son, now aged 6. He was removed from your care at birth and is living with the three other children in the same foster care.
You then moved to Melbourne and formed a relationship with another man and had twin daughters by him. These babies were born prematurely and were removed from you shortly after their birth. No doubt it is a source of considerable anxiety and anguish that you are separated from all of your seven children. Your most recent relationship is with a man called Arman Singh, whom you married, although there seems to be some suggestion that this marriage is a sham. You have never lived together and it is submitted in any event that the relationship is somewhat intermittent.
You were arrested and remanded in custody in respect of these offences on 30 September 2011. You were subsequently granted bail on 2 February 2012 and arrested again on 4 September 2012 for failing to comply with your bail conditions. You have remained in custody since that date. You have been dealt with since these present offences for the offence of making a false report to the police in respect of a sexual assault for which you received a sentence of three months’ imprisonment wholly suspended.
Two reports were tendered in evidence on your behalf; the report of Warren Symmons, psychologist, dated 27 February 2013, which was prepared for another court matter, and the report of Ms Carla Lechner, clinical and forensic psychologist, dated 28 July 2013. Both reports detail your deprived and troubled background and your dysfunctional life to date. You have provided a history of significant marijuana use, commencing at the age of 15 and culminating in daily consumption of two to three grams up until the time of your remand. You have also used cocaine and amphetamine, and worked as a stripper to support your habit. You began drinking alcohol at 17 years of age and, up until the time of your remand, you were drinking at least two cans of mixed drinks a day, although you did not regard drinking at this level as problematic.
Ms Lechner concluded that you are evidencing symptoms of major depression, post-traumatic stress disorder, polysubstance abuse and features of a borderline personality disorder.
Ms Lechner described you as having low/average intelligence, capable of reflecting on the impact your behaviour has had on yourself and others, but easily overwhelmed by emotional factors that undermine your judgment and decision making. Ms Lechner reported that you told her you felt helpless to intervene when Van Zoelan was assaulting Mr Douros.
In Ms Lechner’s opinion, you made no attempt to shirk your responsibility or minimise your actions on that night. You expressed to her your remorse and shame for your inaction; in particular, that you did not seek medical intervention at the motel. You told Ms Lechner that you felt devastated by what had occurred, and it appears that you have suffered a resurgence of post-traumatic symptoms that relate to having witnessed the assault upon Mr Douros. In Ms Lechner’s opinion, it is likely that your judgment on this night was partially impaired by alcohol.
Mr Symmons reported that at the age of 18 and again at 21, you had been diagnosed with depression and anxiety, and post-traumatic stress disorder for which you had received some treatment, and that there was no doubt, he opined, that you met the criteria of post-traumatic stress disorder with evidence of depressive symptoms, the condition being chronic and entrenched, resulting from the abuse you suffered in childhood.
While in custody, you have completed a number of vocational and lifestyle courses and participated in an indigenous art course. You have also enrolled in a Bachelor of Social Work with Deakin University. You are also working as a unit billet, a position of considerable responsibility. Two testimonials were tendered on your behalf; one from Lorraine Austin, your art teacher, who describes you as a committed student, and the other from your lifelong friend, Wayne Jones, who spoke of your regret at what you had done and your resolve to make something of yourself and be somebody. It was submitted by your counsel, Mr Thyssen, that you want to complete your studies and have some interaction with your children in the future.
Your co-offender, Damien Van Zoelen, pleaded guilty to manslaughter by unlawful and dangerous act and was sentenced to 8½ years’ imprisonment with a non-parole period of 5½ years. Your liability for the crime of manslaughter attaches not by reason of what you did, but what you failed to do. It is not put that you intended any harm to Leon Douros, but being under a duty of care to him, your conduct in not intervening and not seeking medical intervention fell so far short of community standards as to warrant criminal punishment. To quote from Weinberg JA in R v Amitesh Bali Jagroop: “the moral culpability of an offender who has been convicted of manslaughter by criminal negligence is likely to be lower than that of an offender who has killed someone by unlawful and dangerous act. There is, after all, in most cases of criminal negligence” and I interpose to say, as is the case here, “no intent on the part of the offender to cause any harm whatever to the victim”. [1]
[1] [2009] VSCA 46, 16.
Each case depends on its own particular facts and circumstances, and there is no inflexible rule that sentence for manslaughter by criminal negligence should be lower than those of other forms of manslaughter, but generally in Victoria, sentences for manslaughter by criminal negligence have generally been more lenient than those other forms of manslaughter.
I note in this regard that in both Jagroop and Reid v The Queen,[2] both cases of manslaughter by negligence, in each instance the offender therein not only owed the deceased a duty of care, but was the person who caused injury to the deceased which placed the deceased in peril and thus the present circumstances of this case may be distinguished from those.
[2] [2010] VSCA 234.
In sentencing you, I take into account your pleas of guilty and give you a discount for them. I take into account also that by reason of those pleas, you have facilitated the administration of justice, saved Mr Douros’ family from the ordeal of a trial and obviated the need of calling witnesses. I take into account that you acknowledged your responsibility at an early stage in the proceedings. Indeed, you pleaded guilty at the committal, although you did later withdraw that plea. I take into account also that your pleas of guilty are indicative of your remorse. I take into account also your remorse and regret as expressed to Ms Lechner and to Mr Jones.
I take into account that you have suffered an abusive childhood and your adult years have been marked by dysfunctional violent relationships. I take into account that at the age of 33, you are the mother of seven children, all of whom have been taken from you. I take into account also your depression and post-traumatic stress disorder, which, because it is entrenched, you would have been suffering from at the time of these offences and presumably still so, although I note in that regard you are not presently on any prescribed medication for your depression. I take into account also that you have applied yourself while in custody, that you are of average intelligence and that, with the appropriate supports in place, including psychological treatment, your rehabilitation is not without prospect. In short, I take into account all matters which go in your favour.
In sentencing you, however, I must also take into account the nature and gravity of the offence here committed and the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and give effect to both specific and general deterrence, so that like-minded people will know that a failure to exercise their duty of care in circumstances amounting to criminal negligence will result in condign punishment.
Accordingly, in respect of Charge 1 on the indictment for the crime of manslaughter, you are convicted and sentenced to three years and nine months’ imprisonment.
In respect of Charge 2 on the indictment, attempting to obtain property by deception, you are convicted and sentenced to six months’ imprisonment.
Although the two offences arose in a sense out of the one episode, they are nonetheless two discrete offences occurring at different times and places. Accordingly, it is appropriate to otherwise direct, pursuant to s 16(1) of the Sentencing Act 1991, that three months of the sentence imposed in respect of Charge 2 on the indictment be served cumulatively with the sentence imposed in respect of Charge 1. That is a total of four years imprisonment.
So as to address your prospects for rehabilitation, I propose to order that you serve a period of two and a half years’ imprisonment before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 500 days.
I declare pursuant to s 6AAA of the Sentencing Act1991 that, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of six years’ imprisonment with a non parole period of four and a half years’ imprisonment.
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