R v Evans

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1481 of 2009

THE QUEEN

JAMES EVANS

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2009
DATE OF SENTENCE:	16 December 2009
CASE MAY BE CITED AS:	R v Evans
MEDIUM NEUTRAL CITATION:	[2009] VSC 593

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Defensive Homicide – 10 years imprisonment – minimum of 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert S.C.	Office of Public Prosecution
For the Accused	Mr G Meredith	Greg Thomas Barrister and Solicitor

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HER HONOUR:

James Evans, you have pleaded guilty to one count of defensive homicide, being that on 19 July 2008 you killed John Thomas Patton.
You are currently 25 years of age, having been born on 23 June 1984.
This killing occurred at 31 Delaware Street, Reservoir, which was a boarding house. It had four separate rooms which were rented. You occupied a room next door to the room occupied by the deceased and his girlfriend, Kerry-Lee Gregal. You had not occupied that room for very long at the time of this offence. Neither had the deceased occupied his room for any great length of time.
On Saturday, 12 July 2007, the deceased man, John Patton, committed a burglary and stole a number of items including a motorbike, an Xbox and approximately 30 "Lucky 13" brand shirts. He stored all of this property in his bedroom. On that same day the deceased came to your room and told you what he had stolen. It was organised that you would try and sell the motorcycle and also some of the shirts that had been stolen. You received approximately 20 of those shirts. A couple of days after that you told the deceased that the shirts that had been given to you by him had been stolen from your room. During that same week the deceased lent you approximately $40, in total, as well as approximately a gram of marijuana, worth he believed, about $30.
About a week later, on the morning of Saturday, 19 July 2008, you had your then girlfriend, Rhiannon Augustus, staying in your room with you. After you got dressed you picked up your Excalibur brand folding knife, which you put into your pants pocket. You and Ms Augustus left and went to visit her mother in Reservoir. You left there and then went to visit a friend in Epping, arriving there at approximately 2 p.m.. Ms Gregal, meanwhile, had entered your room at the boarding house and whilst in the company of the deceased, she rang you, requesting that you provide the $70 that, they said, had been lent to you. You claimed to have paid $60 the previous night and you accused the deceased man of ransacking your room. You and Ms Augustus were driven home then, by a friend. During the drive home you were making disparaging comments about the deceased.
You arrived home about 3 p.m. You and Ms Augustus went into your room and the deceased man commenced to yell at you, making comments such as, "So you think I've been stealing from your room and you think I'm a dog, a lowey." You went to the deceased's room and Ms Augustus stayed in your room. The deceased and you began to argue, verbally only, with him yelling and you yelling over the top of his yelling. You were standing approximately a foot apart and the deceased then punched you in the face, with a clenched fist. You punched him back, also in the face. And the two of you became involved in a scuffle. You were described as, standing up wrestling each other. You were then heard to say, "Do you want me to stab you again?" At that stage Ms Gregal saw blood running down the deceased's clothing, from high in the stomach area, down his leg. She then picked up a large kitchen knife from a nearby table, held it against your throat and said, "Put the knife down or I'll slit you." You then put the knife into the front pocket of your jeans, folding the knife up as you did. Ms Gregal then told you to leave the room and you commenced to do that, but as you stepped away from the deceased man he said, "You stabbed me, you fucking rat. You're a fucking maggot. Just get out of our room". You then punched the deceased man again to the face, with a clenched fist. The deceased threw a punch at you, but missed, striking a nearby cabinet. Ms Augustus had come into the room by that stage and she ultimately led you out of the room. An ambulance was called, and both Ms Gregal and Ms Augustus attempted to do what they could, to stem the blood flow and apply some resuscitation attempts. You went to your room, changed out of your clothing, which was bloodstained; you used that clothing to then wipe the deceased's blood from your body. You took the clothing and you secreted it in the back garden shed.
You returned to the house saying words along the lines of, "I'm getting the fuck out of here", but, as indicated, Ms Augustus stayed to help. An ambulance was called at 3.06 and shortly after the arrival of the police and the paramedics, the deceased man was declared dead.
You left the premises and went to a nearby boarding house in Clarke Street, Reservoir, where you made admissions to a number of people, admitting stabbing the deceased man. There were ongoing discussions, via mobile phone, between you and the girlfriend of the deceased man, between Ms Gregal and your girlfriend, as well. In discussions with your girlfriend you convinced her that, she should tell the police it was the deceased who had the knife and that, you in fact had got it off him and stabbed him, but you did not mean to. You also convinced her to tell them, that your knife had been stolen from you, a few days earlier. Initially she agreed to lie to the police in this manner, but ultimately she told the truth. Other persons attempted to convince you to hand yourself in, but you refused to do so.
You were finally arrested by the police, at that boarding house in Clarke Street at 8 p.m. on the next day, Sunday, 20 July. During your interview with the Homicide Squad you put forward an explanation that, it was the deceased who had come at you with the knife. You said, that he had removed it from your pocket and you were trying to prevent him from stabbing you, when all of a sudden the knife went into him and he then fell to the ground.
The deceased man died from a single stab injury to the chest.
The maximum penalty for an offence of this nature is 20 years' imprisonment.
You have a significant number of prior convictions, commencing in the Children's Court in November of 1999 and continuing through until October of 2007. There are 11 appearances in either the Children's Court or the Magistrates' Court with a total of 47 charges being dealt with in that time.
Of most significant concern, in relation to those prior appearances and convictions are, the number that relate to causing injury, the first being at the Children's Court on 28 April 2000, charged with causing injury intentionally and unlawful assault. You were released on probation, with a special condition that you attend and participate in counselling.
Again on 6 October 2000, a charge of reckless conduct endangering persons, discharging a missile to the danger of a person, as well as other offences. You were placed on $100 good behaviour bond, with a special condition you follow the directions of the Intensive Youth Support Services of Anglicare.
At the Children's Court on 11 September 2001, on numerous charges, including causing injury recklessly and discharging a missile to the danger of a person. You were released on probation for a period of six months. In relation to the various counts of discharging missiles, you informed your counsel that they mainly related to dropping water bombs, from the high rise Housing Commission flats. I have nothing that disputes that and I am prepared to accept it.
At the Magistrates' Court at Melbourne in August of 2002, you were convicted of causing injury recklessly, causing injury intentionally, assault with a weapon, throwing a missile to the danger of a person and other offences. You were released on a community-based order for 24 months, with 175 hours of unpaid community work over 24 months and to undergo assessment and treatment for alcohol or drug addiction and to submit to medical, psychological or psychiatric assessment and treatment as directed and to be under the supervision of a Community Corrections Officer. You were breached for that on 3 September 2003. The breach was found proven and you were sentenced to be convicted and discharged without penalty.
In the Magistrates' Court at Ringwood on 3 September 2003 you were convicted of, amongst other things, causing injury intentionally, for which you received a penalty of 12 months' detention in a Youth Training Centre.
The Magistrates' Court at Ringwood on 14 December 2004, causing serious injury recklessly. You were sentenced to a term of imprisonment for 4 months, suspended for 12 months. You were breached in respect of that, on 4 October 2007. The breach was found proven. The suspended sentence was wholly restored.
At the Magistrates' Court at Melbourne, 4 October 2007, amongst other charges, again charges of unlawful assault, making a threat to kill, causing injury intentionally, robbery, resisting a police officer in the lawful execution of duty and you were sentenced to an aggregate term of imprisonment of 14 months, in respect of those charges and directed to serve a minimum of 7 months.
The deceased man, John Patton, was 37 years of age at the time of his death and, as indicated, was residing in a boarding house with his de facto partner, Kerry-Lee Gregal.
I have received three victim impact statements in respect of the death. Those statements are from, firstly, his mother, Lynnette Patton, his daughter, Terriy, and his brother, Scott Bradley Patton.
The deceased's daughter is only 13 years of age and has lived with her grandmother, John Patton's mother, for the last 11 and a half years. Her son, although not the full-time carer, did contribute occasionally to his daughters upkeep, so financially she has lost any benefit that may have come that way, but, more importantly, emotionally she has lost her son, his daughter has lost her father and his brother has lost a very good friend and close brother. Nothing that this court says or does, in terms of the imposition of a penalty, can alter the level of pain and loss that they feel and I will take the contents of those statements into account, when determining the appropriate penalty.
You have pleaded guilty to the count of defensive homicide and the Crown have accepted the plea on the basis that, when you entered the room of the deceased you had a knife in your pocket, but it was the deceased who hit you first, and the Crown accept that, he was the initial instigator of the dispute.
In relation to matters in mitigation, you have pleaded guilty to this count. It was admitted by your counsel that, a plea of guilty also demonstrates remorse. I am prepared to accept that there is a degree of remorse in your plea of guilty, even though that is inconsistent with your behaviour, both post offence and your denials and lies to the police during your record of interview.
In relation to your personal circumstances and background, the information I have is what you provided to Dr Paul Grech, which is contained in a report prepared on 24 November 2009 and which is Exhibit 4 on the plea. You are the eldest of four children born to your parents, Christine Grant, who is now aged 46, and Donald Francis Evans, who died in 1994. Those siblings are Tanya, 24, Sean, 19 and Grant, your youngest brother, who died from cot death. Your parents separated and your mother went on to have a number of other children, Kirsty, 13, Aaron, 11, Travis, 8 and Richard, 5. Your father had two sons prior to his marriage to your mother, who are Brett, aged 32 and Tony, aged 35. It would appear that the father of your half-siblings, that is, your mother's partner, also had another three children prior to his relationship with your mother, being Tracy, Joanne and Linda.
You described each of your biological parents as alcoholics and said, that your home life was violent. As I indicated, it would appear that your brother, Grant, died of cot death and you were placed into foster care, at about the age of 7. It was around that time that your parents separated. You initially stayed with your father, but DHS became involved and you spent a number of times, with different foster families around the Drouin area. On some occasions you were with your natural siblings, but at other times, you were separated. You had some good placements and you had some bad placements.
At around the age of 10, you and your siblings moved back in with your mother and her new partner, Robert. You were informed that your father had just died of lung cancer, but you were not permitted to go to his funeral by your step-father and your relationship with your step-father, from that point, remained a very poor one.
You claim that you were inappropriately touched by your step-father, when you were aged 10 or 11 and although your mother was there, that did not stop it, they were both exceedingly drunk. It was the only time you can recall such an incident occurring.
The family moved to Glenroy when you were aged 11 to 12. You started stealing money from your mother and from the local Safeway. Your step-father found out about this and, as described by you, he beat you all over. This was noticed by a school counsellor and DHS again became involved and you were placed with a family in Epping.
You were charged with indecent exposure in relation to a young girl and flashing. You were required to complete a MAPS program, while on the probation order with Juvenile Justice. That was on 18 November 1999. You spent time in and out of residential care, including places associated with the Berry Street residential care program, which is described as a last resort for young people, who have had a traumatic childhood, who cannot be managed by other services.
You claim to have been drinking from the age of 9, chroming from the age of 12, injecting yourself with heroin at 14 and snorting amphetamines from 15 and injecting them from the age of 16.
At the age of 17 you were charged with assault and you left residential care not to return again.
In relation to your education, you attended many schools over the years consistent with the changing foster placements. You repeated part of Grade 5. You described yourself as getting into trouble at primary school, not getting along with the teachers and being an attention seeker. The same, you said, applied to secondary college. You started Year 8 at Epping Secondary College, but did not complete it. You started a day program at Eltham through Berry Street, for approximately 6 to 8 months and you did ultimately complete a Certificate II in sign writing at Victoria University in Sunshine.
You worked for a time, at the age of 16, with a company called Eye Candy Production as a sign writer. Since then you have worked as a factory hand, a landscaping assistant, demolition worker and concreter.
As indicated, you have had heavy illegal substance use for a lengthy period of time. In relation to this you reported, that you engaged in the daily use of methamphetamine and Ecstasy for 4 to 6 weeks, stopping abruptly a fortnight prior to the current offending.
You described to the psychologist, associated sleep deprivation and escalating hallucinatory effects, with a period of use of ice and amphetamine, which you claim exceeded 50 grams in a 4 to 6 week period, reaching 3 grams daily, in the final days. You stated that, you ended that use with a single hit of heroin to stop, after which you slept for close to 24 hours, then you smoked marijuana in the fortnight preceding the offence.
During the time of your heavy usage of ice you claimed to be paranoid, but that, of course, has no relevance at the time of the offending, as you had ceased that heavy usage two weeks prior to the offence.
There is no real formal diagnosis on any mental health issue but, it is clear from the lifestyle described, particularly the excessive use of illegal substances and your very traumatic background, that some form of assistance to you in the future could only help and not hinder your long-term prospects.
You have no relationship of any substance. The girlfriend who was present at the time of the offending, had been your girlfriend for approximately three days, at the time.
In custody your sister is on your phone list and you talk to her occasionally. You have had almost nothing to do with your mother for about the last 5 or 6 years but, there has been contact by letter on one or two occasions since you have been in custody. Your mother now resides in Shepparton.
Since you have been in custody you have been dealing with the problems that you have as to alcohol and have completed a 14 week drug and alcohol course, through Moreland Hall. It has a component dealing with relapse prevention, and you have been studying for a welding certificate, since you have been on remand.
Most tragically, you have not had a visit since you have been on remand, which is an indication of the unfortunate and very solitary life that you lead. You are only 25 years old and you still have the opportunity to make something of your life. It will require a great deal of application on your part, but at least you have taken some steps in the right direction, with the completion of the therapeutic course.
In relation to this offending, the matter of defensive homicide is a relatively new offence and there have been only 10 sentences passed under the new legislation, with only one matter referred to the Court of Appeal. The sentences in those cases have varied from, as far as the head sentence is concerned, 7 to 10 years, and the minimum terms from 4 to 8 years.
Your counsel sought to persuade me that, this was a low level example of defensive homicide. I am not, however, so persuaded. I would consider this a mid-range level of offending. You brought the weapon to the room. You produced the weapon, in response to a blow, with no other weapon being produced at that time. You lied about the production of the weapon to the police, and indicated no remorse for your actions, at that stage. Further, you have a criminal history which includes offences involving violence to persons, as well as the use of some form of weapon, albeit not as serious a weapon as a knife.
As well as matters personal to you in sentencing, I also have to take into account specific and general deterrence, denunciation, protection of the community and imposition of a just and appropriate sentence. As has been expressly noted in the case of the DPP v. Kevin Roy Edwards, this offence is one that, but for your subjective, but mistaken, belief that it was necessary for you to carry out such conduct to defend yourself from the infliction of death or really serious injury, this would be a crime of murder. And it is thus, inappropriate to be compared with unlawful and dangerous act manslaughter cases.
Taking all of those matters into account and balancing all the factors, to which I have referred during these sentencing remarks, you are convicted of one count of defensive homicide and sentenced to be imprisoned for a period of 10 years. I direct you that you are to serve 7 years' imprisonment before being eligible for parole.
I declare pursuant to s.6AAA but that for your plea of guilty the sentence imposed by the court would have been a sentence of 11 years and six months with a minimum of 8 years and six months.
In terms of pre-sentence detention I declare that you have served 514 days in pre-sentence detention and that such be noted in the records of the court.
Disposal Order granted and Retention of forensic sample 464ZFB(1) granted.

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[2009] VSC 593

16 December 2009