R v Cummins
[2012] VSC 36
•8 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 104 of 2011
| THE QUEEN |
| v |
| NICHOLAS CUMMINS |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2012 | |
DATE OF SENTENCE: | 8 February 2012 | |
CASE MAY BE CITED AS: | R v Cummins | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 36 | |
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MANSLAUGHTER - Plea of guilty – Victim 61 year old man not known to offender - Victim’s death arose out of a brutal assault – Youthful offender – Favourable prospects of rehabilitation – No prior convictions – Remorseful – TES: 7 years imprisonment with a non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC with Mr T Kassimatis | Valos Black & Associates |
HER HONOUR:
Nicholas Cummins, you have pleaded guilty to one count of manslaughter. No prior convictions are alleged against you.
In November 2010, you were living in Darwin and returned to Melbourne to answer charges in the Broadmeadows Magistrates’ Court on 17 November. Upon your return, you spent four or five days staying with family, catching up with friends and drinking alcohol. On 16 November, you had stayed at Bradley Harvey’s place in Buncle Street, North Melbourne, and commenced drinking at two o’clock that afternoon, with your co-accused, Les Robinson, Bradley Harvey and another male. Les Robinson was a friend of yours and he lived at the nearby Housing Commission estate in North Melbourne, as did the deceased, Charbel Auseff Satouf.
Mr Satouf was 61 years old. He suffered from asthma and was in receipt of a disability pension. He had been seriously assaulted in June 2008, as a result of which it was his custom to carry a knife when he went out.
At about 10.00pm on the night of 16 November, Mr Satouf left his flat armed with a knife and a pair of scissors. He went to a 7-Eleven store, a petrol station and then back to the 7-Eleven store, all in an effort to withdraw money from various ATMs. Each endeavour proved unsuccessful. Shortly after 10.30pm, Mr Satouf was walking along Buncle Street, North Melbourne and it is the Crown case that you, Mr Robinson who had with him his dog, and Mr Harvey were seen to chase Mr Satouf from the intersection of Buncle Street and Pampas Street, North Melbourne. Mr Satouf was seen walking backwards as Mr Robinson was rushing towards him, and the Crown allege that as Mr Satouf was attempting to run away from you and Mr Robinson, he turned to face both of you and Mr Robinson then addressed him in a threatening manner with both of his arms in the air. Mr Robinson apparently made reference to an earlier incident which had occurred between Mr Satouf and the mother of a friend of Bradley Harvey.
It is alleged that Mr Robinson then began to assault Mr Satouf, and the dog also began to attack him. Mr Satouf produced the knife and held it in the direction of you and Mr Robinson, and Mr Robinson then kicked Mr Satouf and he fell to the ground, at which time he continued to be attacked by the dog. You punched Mr Satouf a couple of times to the right side of his face and Mr Robinson continued to assault Mr Satouf by punching and kicking him to the head, face and left side of his body. You also punched Mr Satouf to the face, neck and temple area, and kicked him in the ribs and stomach. Mr Robinson stomped on Mr Satouf’s head and you kicked him in the back, and while he was motionless on the ground, you kicked Mr Satouf to the middle of his body. You stopped kicking him and walked off through a small gateway, but Mr Robinson then began to stomp heavily on Mr Satouf’s head and upper body. He appeared to be out cold. Mr Robinson continued to assault Mr Satouf. When he stopped, he walked off and met up with you, and the two of you then walked along a path in an easterly direction and walked past two security guards, who had heard a female, cry for help. They asked of the two of you if you were okay, and one of you replied affirmatively. You and Mr Robinson then ran towards the flats in Canning Street at about the same time as the two security guards discovered Mr Satouf.
The Ambulance service attended the scene and Mr Satouf was conveyed to the Royal Melbourne Hospital. Upon examination, it was ascertained that he had suffered the following injuries: a haemorrhage to the brain, broken ribs, a ruptured spleen, leaking or collapsed lung, spinal injuries, a possible fracture to the skull and bites and lacerations to the ankles or lower legs. As a result of the injuries sustained, Mr Satouf underwent numerous operations, including the removal of a piece of skull to allow his brain to swell, and was placed into an induced coma in an effort to save his life.
In the interim, you and Mr Robinson went to Mr Robinson’s flat and stayed there for about 50 minutes, during which time you changed your clothes. You both then went back to Bradley Harvey’s place in Buncle Street. You left there and walked to the intersection of Mount Alexander and Racecourse Roads and there caught a taxi, dropping Mr Robinson back at the North Melbourne flats and you returned to where you were staying at your parents’ house in Essendon. The following morning, you went to Court and then, in the next day or so, returned to Darwin.
Mr Robinson was arrested and interviewed on the morning of 17 November. Upon the execution of a search warrant at your family home, the police spoke to your mother, who in turn advised you of their interest, and you voluntarily flew back from Darwin and participated in a record of interview on 23 November. At that time, Mr Satouf was still alive, although on life support. You told the police that you had walked outside and seen Mr Robinson having a disagreement with “a bloke”, that they were arguing, and the next thing, the bloke pulled a knife out and that you ran and got a wheelie bin and threw it to distract him, and then you started punching him and kicking him (questions 53 and 58). You admitted hitting him when he was standing up and then, when he fell over, you admitted kicking him in the stomach. You told the police that you hit Mr Satouf in the head, you thought once or twice when he was standing up and, when he fell over, you kicked him in the stomach a few times (question 129), and that you would have kicked him in the stomach two or three times. You admitted going back to Mr Robinson’s flat and changing your clothes and then returning to Bradley Harvey’s house and going to Mount Alexander Road and catching a taxi.
At the conclusion of the record of interview, you were remanded in custody and Mr Satouf died on 25 November. A post-mortem performed the following day determined that Mr Satouf died as a result of the injuries sustained to his head. The forensic pathologist found that there were distinct areas of blunt force trauma to the top of the head, both sides of the face and the upper body generally.
The Crown has put its case against you on the basis of unlawful and dangerous act manslaughter. In your record of interview, you asserted that you were acting in response to the production of the knife, but you now accept that your actions went beyond any legitimate defence, occurring as they did principally at a time when Mr Satouf was down on the ground and being attacked by Mr Robinson and the dog. You dispute that you chased Mr Satouf as the Crown contends and that you knew of the grievance that Mr Robinson apparently had with Mr Satouf. In light of your plea, both the Crown and your counsel submit that it is not necessary to resolve these matters, and I proceed on that basis.
The maximum penalty for the crime of manslaughter is 20 years’ imprisonment. Mr Satouf was administered a severe beating, although your role was limited to punching him to the head, it appears while he was standing, and then kicking him in the ribs and stomach in the area of the middle body, on your account, two or three times. Mr Satouf certainly posed no threat to you when he was down, and your actions were therefore entirely gratuitous, no doubt fuelled by your drunken state. Although you did not inflict the injuries to Mr Satouf which were the cause of his death, your actions nonetheless did constitute a brutal assault upon Mr Satouf, he suffering, inter alia, broken ribs and a collapsed lung. Your actions have contributed to the untimely death of another human being. As stated previously, Mr Satouf was 61 years old. He was a married man and the father of two adult children. He came to Australia from Lebanon in the early 1970s. He had been employed at the Ford factory in Campbellfield from 1986 to 1990, when he had an operation on his lungs and was not able to return to work. At the time of his death, he had been living in the Ministry of Housing flats in North Melbourne for eight years and he was well known in the Melbourne Lebanese community.
Victim Impact Statements made by Mr Satouf’s wife, son and daughter were tendered in evidence. Mr Satouf and his wife had been married for 30 years, although at the time of his death they had been separated for some time. They nonetheless still enjoyed a loving and caring relationship. Mrs Satouf has suffered depression since her husband’s death and acutely feels his loss. His daughter, Sandy, and son, Steven, each attest to the love of their father, whom they describe as a sweet and loving man, kind and generous. No sentence this Court can impose can restore to them their husband and father, and no sentence can ameliorate their grief.
You were 19 years old when you committed this offence, and you have recently turned 21. Your counsel, Mr Morrissey SC, has described you as coming from a good family. You have one sibling, an older sister, who suffers from mild Down Syndrome. Your father, previously a publican, is now employed as a manager in a betting operation. Previously, this necessitated his living in Vanuatu and consequently absent from the family home for long periods of time. Your mother was required to devote much of her attention to the special needs of your sister, and you are also said to have been a great supporter and very protective of her.
You attended Essendon Grammar and participated in numerous sports at school and locally. You were described as a modest student and a good sportsman. Your father returned to live full-time with the family when a British company purchased the Vanuatu operations and he took a management position with them. It appears that with the return of your father to the home, you became somewhat non-compliant and ultimately you were expelled from Essendon Grammar.
When you were 13 in 2004, you were struck by a car and suffered a number of injuries, which included a broken leg and broken nose. The following year, you attended the Niddrie High School, but it appears that by this time you were lacking motivation at school and you had started drinking alcohol and started to display what Mr Morrissey SC described as “an attitude problem”.
Charles Miller, in his testimonial, opined that he was under the impression that in your father’s absence, you were a boy who felt a burden, real or imagined, of being the man of the family and that your perceived responsibilities led you to think that you deserved the latitude and freedom which came with adulthood and eventually led to your drinking alcohol and spending time with older friends.
You also continued to suffer pain from the injuries sustained in the accident. You could no longer play sport to the levels you previously enjoyed and, as I understand it from the various reports and testimonials, it appears that your personality seemed to change from this time. It also appears that at around this time you were diagnosed with ADHD. You were initially prescribed medication, but it appears that nothing further came of it. You were able to work part-time at the local pizza shop and at the Royal Show, and indeed it was in this way that you came to meet Mr Robinson. Your alcohol intake became a significant problem for you over the years and it also appears that you were using marijuana on a regular basis. The sequelae of the injuries continued to bother you and you left school in Year 10 without completing it, having previously participated in a special education program at Debney Park.
You ultimately obtained employment with a family friend, Matthew Tripp, who offered you a position with Sportsbet, initially in Melbourne, but then more successfully in Darwin. It appears that you had gone there in part to address your drinking problem. It was submitted by your counsel that in Darwin you had led a life that was going places. Mr Tripp gave evidence on your behalf and his testimonial was also tendered in evidence. He spoke highly of your abilities. You enjoyed a good relationship with your work colleagues and you were effective in your work. Subject to the regulator’s approval, he would propose that your pursue a role in middle management with the company upon your release. Mr Tripp also said that you were extremely remorseful and saddened for the victim and his family, and also for your own.
Mr Richard Tregear, Community Outreach Worker, also gave evidence. He has visited you on half a dozen occasions over the last eight months and you have discussed with him your problem with alcohol and the prospect of remaining abstinent. You have also expressed to him your remorse and shock at having been involved with another person’s life ending. Numerous testimonials were also tendered in evidence. They variously describe you as deeply remorseful and ashamed and sorry for the grief that you have caused. You are also described therein as a loyal friend, a caring and loving brother to your sister, a good worker, reliable, honest and respectful.
Mr Jeffrey Cummins, forensic psychologist, also gave evidence on your behalf and his reports were tendered in evidence. Mr Cummins, in consultation with Dr Ian Stuart, clinical neuropsychologist whose report was also tendered in evidence, has concluded that you have suffered some residual brain damage affecting the left frontal lobe and left temporal lobe, resulting in poor short-term memory. Mr Cummins has also diagnosed you as suffering an adjustment disorder, your personality change since the accident and the change in your attitudes and sporting prowess being reflective of that, and such disorder is said to have impacted adversely upon your development. Mr Cummins tested your IQ and assessed it at 76, placing you in the middle of the borderline range. He also assessed you as a slow learner, consistently with Dr Stuart’s findings, and immature and, in his opinion, quite naïve. You have acknowledged to him that you have a long-term problem with alcohol and he reported that you attend AA while on remand. You also expressed to Mr Cummins your remorse and empathy for the victim and his family.
Dr Stuart, in his report, opined on the basis of the information he had to hand that you had sustained a mild traumatic brain injury as a result of the accident in 2004, but that your practical intelligence is intact and falls into the average range.
Mr Morrissey SC, who appeared together with Mr Kassimatis, submitted that your offending must be placed in the context of your continuing to suffer the sequelae of the injuries sustained in the accident, including the residual brain damage, which in turn has led in part to your alcohol abuse, immaturity and adjustment disorder, and I accept that this is so. Nonetheless, by your own admission you were very drunk (question 125) and you acknowledged in the record of interview that you are, in your own words, “quite a bad drinker” and that you drink “way to much” (question 95). You acknowledged, again in your words, that “drink gets you into trouble” and that you have “a real issue with alcohol” (question 279).
As I understand it, alcohol was also involved in the matters before the Broadmeadows Court, where you faced charges of recklessly making a threat to inflict serious injury, unlawful assault and resist police, and this offence occurred on the eve of your court appearance, the prospect of which clearly failed to deter you from drinking to excess on this night. By the time you were interviewed by the police a week after the assault, you appeared to have come to the realisation that you had to stop drinking.
Having read the transcript of the record of interview and having viewed it, I accept that you admitted your involvement in the assault on Mr Satouf, although in my view you were not entirely frank about certain aspects of it, and that your demeanour was that of a somewhat naïve and immature young man.
Mr Morrissey SC submitted that because of your age when you committed this offence, that is, 19 years old, you were then a young offender and now you fall to be sentenced as a youthful offender. Rehabilitation, he said, is of primary importance and that, in turn, is linked to the protection of the community. He conceded, however, that general deterrence is not to be ignored and that considerations of specific deterrence, he submitted, are intrinsically linked with rehabilitation. Mr Morrissey SC relied in particular in this regard upon the fact that at the age of 19 and 20, you have spent 12 months on remand for murder, which has had a salutary effect upon you and I accept that this would be so.
Upon being remanded, you were subsequently transferred to Port Phillip Prison. You were held at the Charlotte Unit in difficult conditions for approximately three months, which led to depression and for which it appears you were treated with Avanza. Ultimately, you were transferred to the young offenders unit, Penhyn in late February 2011, where you have been working as a gardener. However, your conduct while on remand has not been without incident. You provided one positive urine analysis resulting from an occasion when you took buprenorphine in November 2011, apparently in the belief that your offer to plead guilty to manslaughter had not been accepted and that you would be facing a charge of murder.
Mr Morrissey SC further submitted that your offending lacked the heinous qualities which are sometimes found in other cases; that there was no planning or the use of a weapon; and that you did stop assaulting Mr Satouf before Mr Robinson struck the critical blows which ultimately killed him; these are factors, he submitted, when combined with mitigating personal circumstances, warrant a sentence less than the median and most common sentence as revealed by the sentencing snapshots of 2005 to 2010 for the crime of manslaughter and, in particular, a longer than normal period on parole is here appropriate.
Mr Rochford SC, who appeared on behalf of the Crown, submitted that general deterrence is of high significance in this case by reason of the salient features of the offence, and that there is nothing out of the ordinary that distinguishes your case from any like case that comes before the Court. Mr Rochford SC also submitted that it was not unusual for a young offender to come before the Court for a violent act and, indeed, the sentencing snapshots reveal the biggest number to come before the Court for the crime of manslaughter in the period 2005 to 2010 were indeed persons aged between 20 and 24 years.
I accept that you have favourable prospects for rehabilitation. You are young. You have the support of a decent and loving family. You have endeavoured to further your education while on remand, having studied subjects for the VCAL certificate and participated in a number of programs designed to assist your rehabilitation, in particular including drug education, relapse prevention and offending behaviour programs. You have the prospect of employment upon your release. You are well regarded by your employer and friends, and you have a good work ethic. All of these matters are very much to your credit, but your rehabilitation, in my view, will only be achieved when you address the issue of alcohol in your life.
I accept also that you are remorseful, that you have expressed empathy for the victim of your crime and his family, and that you acknowledge your problem with alcohol and you appear to be gaining some insight into the need to address it. I accept also that you are still a young man and somewhat immature.
I accept that your status as a young offender at the time of the offence and now as a youthful offender dictate that primacy be given to rehabilitation, but a balance is to be struck between your youth and rehabilitation and considerations of general deterrence, specific deterrence and just punishment. General deterrence must still be afforded appropriate weight in cases such as this. The consequence of alcohol-fuelled violence is frequently before the courts, and any sentence imposed must signal to like-minded members of the community, even those who are young and immature, that such conduct as you engaged in will warrant condign punishment. Any sentence imposed must also act in denunciation of your conduct and serve to punish you and give effect to specific deterrence, although your experiences to date may be said to result in a somewhat diminished need for specific deterrence.
In sentencing you, I take into account your plea of guilty first conveyed to the Director on 3 December 2011, and I give you a discount for it. I take into account also that, by reason of your plea, you have saved the community the cost of a trial and the witnesses the ordeal of one. I take into account also that you cooperated with the police by voluntarily returning from Darwin and that you admitted your involvement in the record of interview. I take into account that you have expressed remorse for your conduct and empathy for your victim and his family. I take into account also your age and the fact that at the age of 21 you are facing a significant period of imprisonment for the first time and that you have spent 12 of the past 14 months on remand for the crime of murder when you were only aged 19 and 20. I take into account that you were a young offender at the time you committed this offence and that you are to be sentenced as a youthful offender. I take into account also your personal characteristics as described by Mr Cummins and Dr Stuart, in particular your naivety and immaturity, and the likelihood that the injuries suffered as a result of the accident in 2004 have, in part, contributed to your immaturity and consequent alcohol abuse. I take into account also that no prior convictions are alleged against you, that you are well regarded and that with the support of your family and friends and a resolve to abstain from alcohol, your prospects for rehabilitation are favourable. In short, I take into account all things which go in your favour.
In sentencing you, I take into account the nature and gravity of the offence here committed and your role in it. Every homicide is serious but this instance of manslaughter does fall towards the lower end. It was a somewhat spontaneous act on your part, no doubt fuelled by alcohol, and the presence of a knife, but it did not involve the use of a weapon on your part and your actions were somewhat discrete from the blows which caused the injuries which in turn were the cause of death. I take into account also, and having due regard and giving the appropriate weight to the matters which go in mitigation of the sentence to be imposed, the need nonetheless to pass a sentence which serves to punish you and act in denunciation of your conduct, as well as addressing considerations of general and specific deterrence.
Accordingly, for the crime of manslaughter, you are convicted and sentenced to seven years imprisonment, and in order to further address your prospects for rehabilitation and your youth, I propose to order that you serve a period of four years before becoming eligible for parole. I declare that you have already served by way of pre-sentence detention a period of 442 days, and I declare, pursuant to s 6AAA of the Sentencing Act, that were it not for your plea of guilty, which in turn would have impacted upon considerations to be given to the question of remorse and your rehabilitation, I would have sentenced you to eight years’ imprisonment with a non-parole period of six years.
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