R v Blundell
[2005] VSC 175
•19 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1518 of 2004
| THE QUEEN |
| v |
| LUCAS JAMES BLUNDELL |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 May 2005 | |
DATE OF SENTENCE: | 19 May 2005 | |
CASE MAY BE CITED AS: | R v Blundell | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 175 | |
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CRIMINAL LAW – Sentence – Plea of guilty – Manslaughter – Unlawful and dangerous act.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.J. Johnston | Office of Public Prosecutions |
| For the Accused | Mr C.F. Thomson | Victoria Legal Aid |
HIS HONOUR:
You, Lucas James Blundell, have pleaded guilty before me to one count of manslaughter. You have pleaded guilty to killing Stephen Colin Wales at St Kilda East on the evening of 4 March 2004. The maximum penalty for this offence is 20 years’ imprisonment.
Manslaughter is a crime which occurs in a wide variety of circumstances. In this case the prosecution contends that the killing of Stephen Wales took place by way of unlawful and dangerous act committed by you. Thus, it is accepted by the prosecution that the death of your victim occurred in circumstances where there was no intention on your part to cause his death.
To explain how you, a person of good reputation, at the age of 29 years came to commit such a crime requires some consideration of the circumstances.
In March 2004 you lived together with your partner, Michelle Shepherd, and your six‑year-old autistic son, Bailey, in a block of flats in Inkerman Street, East St Kilda. In the next-door flat lived a person known as Jim Ahmet, who at the time was aged approximately 27 years, together with a 16-year-old youth, Cori White. It is apparent from the evidence before me that you and, in particular your partner Michelle Shepherd had a good relationship with the two young men who lived together next door. She had loaned them money and various other things such as a television set and a bookcase and she had given advice to them. They, and in particular Cori White, often used her computer.
Some days before the evening of 4 March 2004, Michelle Shepherd borrowed a sum of $25 from those neighbours. That day you arrived home from work at approximately 6 p.m. It is apparent that soon thereafter your partner Michelle and the two occupants of the next-door flat argued about her failure to repay the debt of $25 that evening on request. Upon this argument occurring, you intervened and said that you would go and get the money. You then left the premises and went to a nearby ATM where you took out the sum of $100.
Whilst you were absent, the dispute between the two males and your partner Michelle continued and escalated. In the course of this argument she requested that a television set that she had loaned them be returned. Cori White returned the television set by dropping it upon her foot. She went back to your flat. Jim Ahmet then battered, kicked and damaged the door of your flat. At this time your partner Michelle was inside the flat together with your son Bailey.
You returned to the flat from the ATM machine. As you returned you met Cori White, Jim Ahmet and a friend of theirs, Samantha Cole, coming down the stairs. You went upstairs and observed the damage that Ahmet had caused to the door of your flat. There you found your partner Michelle and your autistic son Bailey in an hysterical state. This caused you to lose your temper, grab a nearby chair and batter and cause damage to the door of their flat. In the course of doing so, you knocked the door handle off the door.
Soon thereafter Cori White, Jim Ahmet and Samantha Cole returned to the premises. Samantha Cole observed you trying to fix the door. You gave White and Ahmet $50 and attempted to open their door. You told them that you would help them get into the flat and fix them up about the damage.
Had matters been left there, the tragedy which followed would never have occurred. However, Cori White and Jim Ahmet were extremely angry about the damage to their door.
Cori White then told you that he was going to ring his mother. He told your partner Michelle that she had better watch her back. He told you that he would get the Outlaws to come. Previously he had told you and Michelle that his mother’s brother was a member of the Outlaws Motorcycle Club. He had made similar statements to Samantha Cole.
You returned to your flat where you found Michelle in a highly upset state. You and she then left the flat to buy some food and to get money from an ATM. After discussion, you and Michelle then decided that you, she and Bailey would go to stay overnight at the home of your aunt in South Morang. You commenced to travel to South Morang, but realised that you had insufficient clothing for Bailey.
The fateful decision to return to your premises was then made.
In the meantime, and true to his threat, Cori White had telephoned his mother, Anita White. He told her that you and Michelle had put an axe through his door. She, together with her 13-year-old son Nathaniel White, picked up her boyfriend, Stephen Wales, and drove to the scene.
She observed the damage to the door of her son Corey’s flat and knocked on your door. You, of course, were not home. A group consisting of her 13-year-old son, Stephen Wales, Cori White, Jim Ahmet and Samantha Cole then stood outside the block of flats in Inkerman Street. The evidence given at the committal is that at that stage Anita White was highly upset and was seeking revenge.
This is the scene which greeted you as you arrived back and drove into Inkerman Street. At the time Michelle was in the passenger seat and Bailey was seated on a child’s seat in the rear. Seeing the group in the street, you did not stop in Inkerman Street but rather continued on and turned into Raglan Street. There you stopped. You commenced to tell Michelle that it was better to forget the clothes and go straight to South Morang. The group of six people observed your car and, led by Anita White, they chased it down Inkerman Street and into Raglan Street with the intention of confronting you and Michelle Shepherd.
The full detail and sequence of the precise events which followed are not entirely clear. The statements made to police by those present are, in some cases, in conflict and, to a degree, are clearly self-serving. However, a number of facts are established clearly by the depositional material. Anita White says that she ran to your door and said: “Get out of the car, you fucking bitch.” Samantha Cole says Anita White was screaming and swearing. Anita White says that she reached into the open window and grabbed you by the shirt. You say you were hit in the head by her.
Taking into account the circumstances, I consider that to be likely. She then realised that you were not Michelle and ran around to the passenger side of the car. At this stage, according to Anita White, Samantha Cole was grappling with Michelle through the passenger-side window.
Samantha Cole agrees that there were at least two people grappling with Michelle at that time. Anita White then proceeded to punch Michelle. It would appear that as that was happening you got out of the car and went around the front towards the passenger side where Michelle was being assaulted by Anita White and at least one other person.
You say that you were telling them to stop. At this stage Stephen Wales intervened and (to use the words of Cori White) struck you with a “hay-roller”.
You told police that you were punched several times by him and you went to the ground. You were on your hands and knees. Whilst on the ground you say that you reached in your pocket and pulled out a pocketknife, which you described to police as having a blade of approximately six centimetres in length. It is clear that you used a knife to stab Stephen Wales on two occasions in the period of the next moments. Either shortly before or at the same time as those events, Anita White was continuing to attempt to assault Michelle, who was endeavouring to get to the driver’s-side seat of the car. Anita White was yelling to others to grab the car keys, no doubt to ensure that there was no escape by Michelle. However, Michelle managed to get to the driver’s seat and drove off with one of the doors open. One of the group yelled words to her to the effect of: “You are dead. We are going to kill you. We will get the Outlaws on to you.”
As she drove away, she saw you on the grass with a group of people around you. She could hear you yelling.
In fear for your safety, she drove directly to the St Kilda police station. She arrived at 9.10 p.m. After stabbing Wales, you ran away from the scene. You say that you rang 000 and then ran directly to the St Kilda police station, which is less than half a kilometre from the scene of the confrontation. You arrived there at 9.12 p.m. You told police that you had been attacked and that you had stabbed your attacker with a bar or a rod. Almost immediately you were placed in custody. Your victim, Stephen Wales, died soon thereafter.
Regrettably, as is commonplace, a minor matter, in this case an argument about $25, escalated to the point where a person has lost his life needlessly. The victim impact statements tendered before me are from his mother, his father, Anita and Nathaniel White. For his parents the loss of a much loved son who was aged 42 is almost unbearable. Clearly, he was a good friend as well as a son to them. The statements of Anita and Nathaniel White, likewise, demonstrate the effect that the loss of Stephen Wales has had, and will have, on their lives.
This morning three further victim impact statements were filed on behalf of the three children of your victim.
They are heart-wrenching statements of the effect the death of their father has had upon each of them. Upon reading the statements made by those innocent victims one cannot help but be deeply frustrated by the futility of the loss of a life that started with a dispute about a $25 debt.
The post-mortem demonstrates that there were two wounds caused by a knife in the chest of Stephen Wales; the first on the right anterior of the chest which penetrated the lung, the second on the anterior chest wall of the costal margin. This knife wound penetrated his heart. The first of those injuries was three centimetres in depth and the second approximately eight centimetres in depth. The evidence of pathologist Dr Lynch is that the degree of force required to cause such injuries is at least moderate.
Clearly, the use of a knife which causes the death of another human being is a serious matter. There are, however, a number of mitigating facts about both the circumstances of the offence and matters personal to you.
I am satisfied that the violent confrontation in Raglan Street was not of your making. Your loss of temper earlier in the evening when you damaged the door of your neighbours does you no credit, but it was in circumstances where you had been provoked by similar behaviour on their behalf. However, thereafter you were conciliatory in your approach, offering to undertake repairs and to assist with their entry into the unit as well as repaying them twice the sum owed by Michelle to them. Your arrival back in Inkerman Street with Bailey and Michelle shortly before nine o’clock was at a time when you believed your neighbours would have left. Instead, you found six people out on the street, at least some of whom obviously were in a confrontational state of mind. You drove around the corner and you stopped. Of course it would have been far wiser to have kept going, but I accept that you stopped to discuss with Michelle what should be done.
The attack upon you and Michelle by Anita White in company with others in the presence of your child was indeed contemptible and unlawful behaviour and I accept that at that stage you had some cause to fear for the safety of your family. Clearly, such fear was enough to compel Michelle Shepherd to leave you at the scene and attend in an hysterical state at the St Kilda police station. It is relevant that her statement as made to police at St Kilda was the only statement made by any witness on the night of the incident itself and that immediately upon arrival she told police that you were being bashed up by six persons. There is no reason to believe that she knew you had stabbed Wales at the time of her attendance at the St Kilda police station, nor is there any reason to believe that her state, as observed by police, was other than a genuine response to the circumstances as she perceived them.
Anita White asserts that after you got out of the car, you punched her, although she says the punch was blocked by Stephen Wales. You deny ever having got close enough to Anita White to strike her. Certainly she suffered no injury for which she saw fit to seek attention at the hospital.
The second statement made by Samantha Cole contradicts the statement of Anita White. Cole states that she was at the passenger window of the car with Anita White when Stephen Wales ran past her to the front of the car where you were situated. She then saw Stephen Wales facing away from her with you facing her. She says that Stephen Wales’s arms were moving as though he was throwing punches at you.
Similarly, Nathaniel Cole denied that you had struck Anita White and neither Cori White nor Jim Ahmet agreed that any such thing happened. They do, however, say that when you got out of the car, you came around to the front of the car towards Anita. They say that you had your fists up in a menacing fashion. You say that you were yelling at them to stop assaulting Michelle. What the true circumstance was is unknown, but it is clear that at that time Stephen Wales ran up and started punching you. I do not accept that you punched Anita Wales at any stage, as asserted by her, although it is probable that Stephen Wales thought you might attempt to stop her from assaulting your partner Michelle by the use of violence. That, in my view, is the explanation for why he ran up to you at that time.
I accept that you were punched a number of times by Wales before you stabbed him. Dr Hurley, who examined you soon after these offences, found bruising on your right and left forehead, your left collarbone, your right chest, your right upper arm, your right wrist, right elbow, left elbow and right knee. Abrasions were found on the outside of your right hand, right knee and shin. His evidence is that such injuries could not be excluded as having happened during the time frame in question. They are indeed consistent with the description of the assault given by you to police immediately after these events took place.
Regrettably, the factual circumstances behind your use of the knife are not entirely clear. At first you maintained to police that you stabbed Stephen Wales with a piece of metal you picked up from the ground when he knocked you to the ground. When it became apparent some hours after the event that your explanation in this regard was untenable, you admitted that you used a penknife that was in your possession and which you discarded as you ran from the scene. The penknife you described to police required to be opened. Clearly, it was then used twice.
The evidence is that it was used with at least moderate force. You told police it had a blade approximately six centimetres in length. It is likely to have been somewhat longer, as one wound suffered by Wales was deeper than six cm. You told police that you carried such a knife to cut your lunch and occasionally to assist in your work as an arborist. You were in your work clothes at the time and, as the learned prosecutor concedes, it may well be that your explanation for possession of the knife is correct; however, whatever justification you may have had for carrying a knife, and whatever justification you may have had to defend yourself and Michelle and your child, resort to the use of a knife on two occasions was an excessive response to the threat then posed to you. Furthermore, of course the knife was used upon a vulnerable part of the body of your victim.
However, that said, I am satisfied that the confrontation that took place at the instance of Anita White in Raglan Street did cause you fear and anxiety, particularly in circumstances where you had your young autistic child with you. The evidence before me demonstrates that at the time in question at least both Anita White and Samantha Cole were screaming abuse at your partner in an hysterical manner and assaulting her.
Although it would appear that Stephen Wales was not instrumental in any way in the commencement of the confrontation, it is apparent that he entered the fray when he perceived that you might attack Anita White.
Ahmet has been described as a person who is 5 foot 10 inches tall, approximately 70 kilograms in weight and extremely fit. Wales was taller than you are and clearly had the better of you in the physical confrontation with you.
Also, he had the apparent support of up to five persons. I am entirely satisfied that your response was a spur-of-the-moment response in circumstances where you were under emotional pressure and not able to weigh up in a considered way the options open to you. These circumstances are such that, as indeed conceded by a most experienced prosecutor, this is a most unusual case of manslaughter.
I turn now to other matters relevant to your plea.
You have pleaded guilty to the crime of manslaughter.
You said at the committal hearing that you were prepared to plead guilty to the crime of manslaughter at that time.
You are entitled to have the fact that you have pleaded guilty taken into account in your favour, and I do so. The community has, by your plea, been spared the time, cost and inconvenience of a trial. But, more importantly in this case, the people who cared about Stephen Wales and who were present at the scene have been spared the trauma, embarrassment and humiliation of giving evidence in the trial against you. This is not insignificant in the circumstances of this case where a number of the statements made by the persons who confronted you and Michelle are, as I have said, contradictory and, in some circumstances, self-serving. Furthermore, I take into account in your favour the fact that you intimated early your intention to plead guilty to the charge of manslaughter. This is a significant matter, particularly in circumstances where the facts of what took place are such that an arguable case in self-defence may have been available to you.
Having viewed the videotape of the record of interview carefully, I accept that you were generally cooperative and truthful with police, save for the significant fact of your failure at first to be truthful with police about your use of a knife rather than some implement found by you on the ground.
I accept that your plea reflects true remorse and demonstrates, as is accepted by the prosecution, that you had no intention of causing the tragic death of Stephen Wales. I note that you told police some hours after the event when asked if you wished to say anything in answer to the charge: “Just that I didn’t mean it, I wanted him to back off. I thought they were going to kill me. I thought they were going to kill my family. That’s all I wanted. I just wanted it to stop. That’s it.”
I have been told something of your personal circumstances and your history. You are aged 30 years, having been born on 15 October 1974. You were 29 years of age at the time of the offence. You have no prior convictions although more than nine years ago charges of indecent language, drunk in a public place, trespassing and resisting police were the subject of a fine of $400 without conviction. The age of those matters and indeed the manner of disposition by the magistrate is such that they are not of relevance to my task today.
Evidence has been led on your behalf. I heard from your aunt, Dr Julie Dixon, that she has never seen you angry or violent and that you are a caring father to your autistic son. She said that you are calm and thoughtful with Bailey and he is your main priority in life. She told me that you completed your secondary schooling at Castlemaine Secondary College and then studied horticulture at TAFE for a year before undertaking an apprenticeship in horticulture with the Bendigo City Council for four years.
You then undertook an arborist course for three years at Burnley College whilst working with a private contractor.
The evidence before me is that you have never been out of employment.
In addition, I heard from Mark Shiers, who is an assistant arborist with the City of Brimbank, and who has known you for approximately seven years. You were his supervisor. He described you as “probably the best supervisor I’ve worked under”. He was shocked to hear of your conduct on the evening of the offence. He said that he had never seen you behave in a violent way. He said, “Luke was one of the best mediators I’ve ever worked with. In our job we quite often - we deal with the public and quite often we would come across irate ratepayers and Luke was always good with the customers - could settle any disputes that came up.”
Paul Foley, a cherry-picker operator, gave evidence before me. Likewise, he has worked with you in the past at a firm by the name of Citywide. He described you as a very good arborist. He said that you have an ability to teach other people on the job. In respect of your capacity to relate to other people, he estimated you to be “one of the most liked people amongst the 20 or 30 people at work there”.
Likewise, he has never seen you behave in a violent manner.
I heard evidence from Paul Landells, who has worked as an arborist with you. He said that he had never seen you raise your voice in anger.
Gregory Eldridge, an arborist with Citywide, gave evidence before me. He worked with you on a day-to-day basis and described you as always having a smile on your face and never being angry about anything. He described your capacity to deal with ratepayers who were unhappy about the destruction of trees. He said that you would deal with them very calmly. Your knowledge of trees is, in his view, “fantastic”. You have a “brilliant work ethic”, in his opinion. He has never seen you get violent and when he heard about this incident, he said, “I couldn’t believe it. Unbelievable. Totally out of character”.
The Operations Manager of Citywide Services, Matthew Gordon Williams, gave evidence before me. He has 28 people working under him in the tree-care decision and is responsible for the tree-care contract in Stonnington and Port Phillip cities. He said that you have “exceptional skills”. You are, he said, a lateral thinker and he would often call on you to do what he considered to be “the more difficult jobs and have confidence that those jobs would be carried out in a professional manner”. He said that you are looked up to by the staff and that you are “quick to put your hand up” to assist in training and providing guidance to new employees. He said that you telephoned him at five o’clock in the morning after the events which bring you before this court. He said that the response of his staff was absolute shock and disbelief. He said you are “a very happy, jolly kind of guy, always coming into work with a smile on his face, never had any issues with doing any kinds of work, got along with everybody”.
Dean Grant, the Business Unit Manager for Citywide Services, gave evidence before me. He is responsible for approximately 70 employees. He said that your position with the firm has not been terminated at this stage because of the high regard that Citywide has for you.
Gary Thyer, a workplace trainer by occupation, gave evidence before me. He is employed by the Victorian WorkCover Authority and has trained you in a number of courses relevant to your work as an arborist. He knows you only on a professional basis in that capacity, but he describes you as “unassuming, intelligent, quick to learn” and “generally very pleasant to have in the class and always trying to help people around him”.
Tania Withers, a student in diversional therapy at Swinburne TAFE, gave evidence before me. She met you through Michelle Shepherd. She described her relation with you as being “like a brother to me”. In respect of your relationship with Bailey, she said, “He’s fabulous with Bailey. Yes, he’s very, very patient, very caring, very understanding. Because Bailey’s autistic, Bailey can sometimes push him to the edge and he’s very, very patient with Bailey.” She said that Bailey had been traumatised by the events of the evening and by your being in custody. He would not talk for a long time although recently he has started to communicate with people again.
On the basis of the compelling character evidence which has been given before me, I accept that you are a person of good character and that your conduct on this particular evening was out of character. I accept that you are a hard-working member of the community and that you are highly regarded as an arborist by those who know you. I accept that your time in prison has been, and will be, more difficult by reason of your concerns about your young autistic son. There is evidence before me that Bailey is at a specialist school and that his autism, which has been confirmed by the Alfred Child and Adolescent Mental Health Services, is characterised by impaired development in communication, social interaction and behaviour.
Ms Withers confirmed the effect that the events of this evening have had upon Bailey.
Your counsel, Mr Thomson, submits that his condition, together with the fact that his mother has had to move from where you lived previously and has had trouble finding housing are exceptional circumstances. I have considered this submission and although I accept that undoubtedly this matter will cause you additional grief and hardship during your incarceration, the disability suffered by Bailey is not such an exceptional circumstance that it should be given greater weight than is appropriate beyond that fact. There is no expert evidence before me as to the effect of your incarceration upon Bailey such as would entitle me to say that his disability should be treated as an exceptional circumstance for sentencing purposes.
I accept that your offence took place in the particular circumstances of the night in question and on the spur of the moment and that you are unlikely to re-offend. I accept the submission of your counsel that you have never been involved in an event like this in the past and that it was the conflation of the particular circumstances that evening which made you do something totally out of character for you.
However, as well as matters personal to you, I must take into account other principles of sentencing. In particular, the issue of general deterrence is not without significance. The use of a knife by you is a matter of relevance to this issue. Regrettably, in our community the carrying of knives and indeed the use of them is far from uncommon. Those people who carry knives and use them in situations of personal conflict must know that when, as here, tragic events follow, serious consequences will occur. Furthermore, this court must do the best it can to ensure that the sanctity of life is protected by appropriate punishment and thus I am called upon to manifest the community’s denunciation of your conduct and to impose a just sentence. Those circumstances lead me to conclude that there is no alternative but to impose a sentence of imprisonment upon you. The term of imprisonment to be served, however, should reflect all of the circumstances of the case. This case, once again, demonstrates that the range of circumstances under which the crime of manslaughter occurs is varied indeed and can result in a wide range of just and appropriate sentences.
I sentence you to seven years’ imprisonment. However, I am satisfied that in all of the circumstances a longer than usual period of parole is appropriate to enable you to reintegrate into the community and to have the support of the parole system with parenting Bailey and to reflect your remorse and the unusual circumstances of this particular offence. I order that you not be eligible for parole until such time as you have served three years and six months’ imprisonment.
Pursuant to s.18 of the Sentencing Act, I declare that you have been detained for 440 days’ pre-sentence detention and I direct that the same be noted in the records of the court.
I order, pursuant to s.464ZF of the Crimes Act, that you undergo a forensic procedure for the taking of blood and/or saliva samples in accordance with the act. I am making that order because of the seriousness of the circumstances of the offence and because the order is by consent and because the granting of the order is in the public interest. Mr Blundell, I am obliged as a matter of law to tell you that a member of the police force may use reasonable force to enable a forensic procedure to be conducted.
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