R v Farrell
[2021] VSC 414
•13 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0282
| THE QUEEN | Crown |
| v | |
| RIAN JAMES FARRELL | Accused |
---
JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June 2021 |
DATE OF SENTENCE: | 13 July 2021 |
CASE MAY BE CITED AS: | R v Farrell |
MEDIUM NEUTRAL CITATION: | [2021] VSC 414 |
---
CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty – Contested facts – Single stab wound to the chest – Whether excessive self-defence – Youthful offender – Strong family support – Good prospects for rehabilitation – Sentenced to 7 years’ imprisonment with a non-parole period of 5 years – Sentencing Act 1991, s 5, 6AAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie | Office of Public Prosecutions |
| For the Accused | Mr P Matthews | Stary Norton Halphen |
HER HONOUR:
Introduction
Rian Farrell, you have pleaded guilty to the manslaughter of Liam Cahill. A plea was made on your behalf on 8 June 2021. The circumstances that bring you before this Court are very tragic. You regarded Liam Cahill as your best friend. You were born in the same year as Liam Cahill and were only few months apart in age.[1] You went to the same primary and secondary school and shared similar friends and interests. You were both pursuing plumbing apprenticeships. Despite your friendship with Liam, you must now take responsibility for causing his death.
[1]Liam Cahill was born 30 August 1997. Rian Farrell was born 14 October 1997.
Liam died on 30 May 2020 when you stabbed him in the chest with a large knife during a fight. Although you only stabbed him once, the resulting injury was severe, and death occurred within a very short time.
Procedural history
You were arrested soon after the incident and taken into custody. You voluntarily participated in a formal record of interview and were remanded and charged with murder. On 27 October 2020, you were committed to this Court for trial.[2] On 18 and 19 February 2021, six Crown witnesses were cross-examined under the fast-track process initiated by this Court in response to the COVID-19 pandemic.[3] On 19 March 2021, you offered to plead guilty to manslaughter. The plea offer was accepted, and on 14 April 2021 you were arraigned and formally pleaded guilty. You have been in custody since your arrest.
[2]Following a fast-tracked committal that proceeded on the basis of submissions only.
[3]Under s 198B of the Criminal Procedure Act 2009.
During the plea hearing, the Crown read out a summary of facts.[4] Both the Crown and your counsel tendered written submissions.[5] The factual basis of your offending was largely agreed between the Crown and your counsel, but there was dispute about whether your behaviour could be characterised as excessive self-defence. It was not in dispute that you stabbed Liam Cahill in the chest, during a physical fight. You told police who interviewed you that immediately before the stabbing, you believed Liam Cahill was reaching for a bottle, and you panicked and responded by stabbing him in response. Your counsel submitted that it could not be shown beyond reasonable doubt that you intended to cause serious injury and that it is reasonably possible that you intended to get Liam away from you or to wound him, but not cause a serious injury.[6]
[4]Tendered as Exhibit P1: ‘Amended Prosecution Opening for Plea Hearing’ dated 7 June 2021 (‘Plea Opening’).
[5]Outline of Prosecution Sentencing Submissions dated 4 June 2021, tendered as Exhibit P2 (‘Prosecution Submissions’); Outline of Defence Plea Submissions dated 31 May 2021 tendered as Exhibit D1 (‘Defence Submissions’).
[6]Defence Submissions, [4].
The Crown argued that when you stabbed Liam, your intent was to cause serious injury or you were at least aware of the real probability that a serious wound would be inflicted, in light of the manner in which you stabbed Liam.[7] Further, the Crown submitted that the stabbing did not occur in circumstances of excessive self-defence because there was a lack of support for your account that Liam was reaching for a bottle when you stabbed him. I will describe my findings about this issue after my summary of what happened on the night of the incident. I will use first names for convenience.
[7]Falling short of an intention to cause really serious injury. Prosecution Submissions, [4].
Circumstances of your offence
Background
On 27 May 2020, you booked a 15th floor apartment in Docklands for two nights for a gathering to celebrate the 23rd birthday of a woman you had started seeing — Ksenija. You and another friend, Bianca, organised the gathering. The apartment had two bedrooms, and an open plan kitchen/lounge area connected to a balcony. The open plan kitchen/lounge area was quite confined. Liam and some other friends were invited to the gathering. It was to be the first time many of your friends, including Liam, would meet Ksenija.
You and Bianca arrived at the Docklands apartment at around 4pm on Saturday 30 May 2020, to prepare for the gathering. You brought a supply of alcohol including mixers, and both you and Bianca started drinking while waiting for others to arrive. Just after 6pm, Liam joined you and Bianca, bringing with him some more alcohol. The three of you were socialising and drinking together. Just before 7pm, CCTV captured you and Liam talking and laughing in the hallway outside the apartment. Liam then entered the lifts and left, although he returned a bit later.
Prior to 8pm you went down in the lifts to bring Ksenija up to the apartment. It seems that visitors could not get up to the 15th floor unless someone met them in the lobby and took them up in the lifts. There was some coming and going from the apartment. At some stage you and Ksenija shared a line of cocaine. Jessica and Ardijah, arrived just after 9:30pm. Closer to 10pm, four young men, Aaron, Joshua, Fox and Kyle, arrived, bringing cartons of alcohol. You drank alcohol and socialised with the others.
At about 10:20pm, an unfortunate incident occurred. Liam took offence at a harmless remark that Aaron had made about a music festival both had attended a few months earlier. Liam reacted in an unexpected manner by suddenly throwing a number of punches at Aaron’s head.[8] The other young men who were present pulled Liam away from Aaron. Joshua needed to hold on to Liam for two or three minutes to wait for him to calm down. Despite being restrained by Joshua, Liam grabbed a bottle. Joshua called out for someone to take the bottle from him, which was done. By then the atmosphere had deteriorated, and Aaron was justifiably upset. He had received a black eye and a cut forehead in the attack on him.
[8]Joshua Sydenham-Crofton in his 1 June 2020 statement at [11], Depositions 104, said that Liam had made some strange remarks before this incident.
You and other guests asked Liam why he had assaulted Aaron. You asked Liam to leave the apartment out of respect for Ksenija whose birthday was being celebrated. You checked on Ksenija several times to see if she was alright. Bianca was crying. A neighbour recalled hearing a female yelling ‘Get out of my apartment’. Around this time, close to 10:30pm, Aaron left with Joshua, Fox and Kyle due to what had happened and because Liam refused to leave. They collected their cartons of alcohol and took them away with them when they left. At that stage there were four females left behind in the apartment along with you and Liam.
When Liam refused to leave, Ksenija told him that he had made her feel uncomfortable. Liam went into a bedroom to speak with Bianca. You offered Liam a smoke for the road, but Liam took it out onto the balcony where people were smoking.[9] Between the time Aaron and the other young men left and the physical fight between yourself and Liam, you phoned Joshua to ask if he and the others were alright. You apologised for what had happened, and said that you did not know what to do. You said that Liam was getting a bit aggressive. At 10:52pm, you sent a text message to another friend, Eden, who was not at the gathering. You texted: ‘Cunt. Liam just fucking smacked Gatty [Aaron]. And now his [sic] not leaving the apartment.’
[9]Ksenija Horvat-Vranic statement 31 May 2020, [18], Depositions 73.
The offending conduct
After you sent that message to Eden, you tried to make another phone call at about 10:53pm (to an unknown person). You then followed Liam into the kitchen of the apartment. Liam was at the fridge, about to get a drink. You asked him what he was doing and why he was not leaving. Liam turned around abruptly and punched you in the head. You punched Liam back, swore at him and the two of you were then seen to be grabbing and punching at each other, moving around within the kitchen/lounge area during the fight. In your record of interview you said that the floor was slippery underfoot while you and Liam were fighting one another.
Ksenija and Jessica tried to pull the two of you apart. Ksenija ripped your jumper in the process. You and Liam continued to fight, grappling with one another in the space between the kitchen and the apartment’s front door. Bottles were knocked off a table, the bin was knocked over and the food went everywhere.[10] Ardijah tried to move various bottles off the table in the apartment in case they fell on someone’s head. The fight started in the kitchen and continued into the space next to the TV. The pair of you bumped into the island bench at one point.
[10]Ksenija Horvat-Vranic statement 31 May 2020, [22], Depositions 73.
The fighting continued for a couple of minutes.[11] Liam managed to push you towards the rear kitchen bench which aligned with the stove and refrigerator. At that point he was close to you and facing you. You reached behind with your left hand,[12] grabbed a knife from the knife block and stabbed Liam once to the centre of his chest. The knife block was situated on the rear kitchen bench between the fridge and the stove.[13] At that point in time you were positioned in the area between the stove and the fridge facing Liam who was next to the island bench.[14]
[11]Ksenija thought you and Liam Cahill fought for about a minute. Jessica thought the fight lasted about five minutes. The CCTV footage and your phone records indicate the fight lasted less than a couple of minutes.
[12]Farrell is left handed.
[13]See sketch plan of Jenny McLeish, Victoria Police 10 June 2020, Depositions, 261; Farrell ROI Depositions, 327; and Statement of Jessica Tse dated 31 May 2020, [27] Depositions 81.
[14]Farrell Record of Interview (‘ROI’), Depositions 335, Jessica Tse’s evidence 18 February 2021, Transcript of Proceedings, R v Farrell (Supreme Court of Victoria, S ECR 2020 0282), Justice Tinney, 18 February 2021 (‘s 198B Transcript’), 37.
After the offence
After you stabbed Liam, he immediately turned and walked towards the bathroom, but was ushered out of the apartment by Ksenija, who locked the door.[15] This was at around 10:55pm. Although the four women who were present did not see the knife enter Liam’s chest, there was blood on the wall of the apartment. Ksenija saw the blood and vomited in the toilet. Ardijah and Jessica were both crying.
[15]Jessica and Ardijah’s evidence was that he walked straight out, whereas Ksenija says she remembers Liam walking into the bathroom, she following him, he turned around, she told him he had to go and he walked out, see Transcript of Proceedings, R v Farrell (Supreme Court of Victoria, S ECR 2020 0282), Justice Jane Dixon, 19 February 2021 (‘Plea Transcript’), 91.
Jessica became concerned about Liam and left the apartment at 10:57pm to check on him, closely followed by Ksenija. Jessica found Liam collapsed in the hallway near the front door. She called out and when the other young persons gathered around Liam he was already in a bad way. Emergency calls were made for police and ambulance.
At some stage, you fetched a towel from inside the bathroom of the apartment.[16] Ksenija used the towel to apply pressure to Liam’s chest. Neighbours were alerted to the unfolding incident by screams outside their doors and one of them was trained in first aid and rendered assistance.
[16]Plea Transcript, 75, and Crown agreed at [106].
At 10:59pm, you called your friend Eden from inside the apartment. In a 49-second conversation, you told him that you had stabbed Liam, referring also to a fight. Eden told you to get Liam to hospital. You then tried to phone another number unsuccessfully. At 11:01pm, you rang Eden again, and Eden heard screaming in the background. At 11:02pm, Ardijah and Bianca went down to meet police in the lobby after you gave them the key to operate the lifts so they could bring police up to level 15.[17]
[17]Plea Transcript, 75 and 105.
At 11:03pm, you called Joshua, sounding distraught and telling him, ‘Liam is not breathing.’ At some stage, you were seen to approach Liam and yell: ‘no, wake up.’ You may have tried to shake Liam.[18] Ksenija told you to stay in the apartment. One neighbour recalled you appearing to be in shock and saying, ‘I’m sorry’. Another recalls you raising both hands and saying, ‘please don’t die’ and ‘it can’t be true’.
[18]Bianca thought this may have occurred, but could not remember.
Ardijah and Bianca brought police to the 15th floor to attend to Liam. On seeing police, you went back into the apartment.[19] In a state of panic, you decided to escape over the balcony. You climbed over the balustrade and manoeuvred yourself down two floors, scaling the exterior of the building. There was a sheer drop below you. You entered an apartment on the 13th floor, and at 11:06pm, ran through the apartment and down an internal stairwell. At level six you exited the stairwell and tagged behind a group riding the lift down to the lobby. At 11:07pm you began to run through the lobby but slowed down when you saw police nearby. As you left the building a police officer called out to you. You sprinted across the forecourt and were pursued by police and apprehended.
[19]One police officer then commenced performing CPR on Liam Cahill.
Meanwhile, one of the police members at level 15 had commenced CPR on Liam. Paramedics arrived at around 11:10pm but could not resuscitate Liam. He died at the scene.
After your initial attempt to flee, you cooperated with the arrest.[20] Police cautioned you and explained your rights. You told them Liam was your best mate and asked whether he was ok. Police told you Liam was dead. You swore repeatedly, saying ‘my life’s fucked! I’m going to jail.’ You said again that Liam was your best friend and that you did not mean it.
[20]As is clear from the body worn camera footage.
You were taken to Melbourne West Police Station and were formally interviewed in the early hours of the following morning. You were fully cooperative with police, offering the PIN for your mobile phone, listing the names and details of persons present at the apartment and providing full admissions to stabbing Liam in the chest with a knife and to your actions afterward. When asked what made you decide to reach for the knife you said it was just a panic instinct when you saw he was going for the bottle, and it was a split second decision.[21] You said you had been hit at least four times and it was not stopping any time soon. You said there was no one to break it up, there were only girls there.[22] You said you saw Liam reaching for a bottle and perceived he was going to hit you.[23] You said it was a regular sized stubby.[24]
[21]Farrell ROI Q & A 639, 640 Depositions 337, 338.
[22]Farrell ROI Q & A 653 and 658, 662 Depositions 339, 340.
[23]Farrell ROI Q & A 144 Depositions 282.
[24]Farrell ROI Q & A 453 Depositions 317.
Findings on matters of factual dispute
In considering disputed issues of fact I must not take facts into account in a way that is adverse to your interests unless those facts have been established beyond reasonable doubt. However, if there are facts which I propose to take into account in your favour, it is sufficient if those facts are established on the balance of probabilities.[25] This is the conventional approach to fact-finding in sentencing hearings.
[25]Regarding the approach to a contested plea see Whelan JA in Formosa v The Queen, [2012] VSCA 298, [8], recently applied by Lasry J in R v Chee [2021] VSCA 355.
The Crown disputed that the stabbing occurred in circumstances of excessive self-defence. I am satisfied on the balance of probabilities that this was a case of excessive self-defence. You did not start the physical fight with Liam. It was Liam who attacked you, causing you to retaliate to defend yourself. Liam had already attacked Aaron in a completely unprovoked way. Although no one else saw Liam reaching for a stubby just before you stabbed him, this was a fast moving, dynamic incident and stubbies were present at the scene when you and Liam were fighting. It is not clear how well the scene was preserved after the incident. At the time you grabbed the knife, you were somewhat boxed in by Liam between the island bench and rear kitchen bench. I accept that you did not have the opportunity for calm reflection at the time you grabbed the knife. In those circumstances I accept that you perceived a risk that Liam would grab a stubby and hit you with it, as you said in your police interview, bearing in mind that earlier that night Liam had grabbed a bottle when restrained from attacking Aaron. I accept you intended to wound Liam when you stabbed him with a knife. I conclude that the stabbing was a spontaneous, impulsive action in response to fear and panic.
On the other hand, I accept the Crown’s submission that even if you perceived that Liam was contemplating grabbing a bottle as a weapon, you were not justified in stabbing him in the chest with a large kitchen knife.[26] Your actions were a disproportionate and excessive response to the threat you were facing.
[26]Plea Opening, [48].
The knife you had stabbed Liam with was about 20 centimetres long and caused a deep wound to the centre of Liam’s chest.[27] There was some dispute about the degree of force required to cause that wound, but I am satisfied on the basis of the evidence of forensic pathologist, Dr Burke, that the degree of force used to cause the wound was somewhere between mild and moderate.[28] Regardless of how the degree of force is described, the size and shape of the knife made it a very dangerous object to bring into the fight.[29] Photographs of the knife used in the stabbing aid in understanding why the injury was so severe.
[27]The stab wound penetrated deeply into Liam’s chest and was directed from front to back at a downward angle of 45 degrees. It penetrated through the heart and left lung, and was measured as 20 centimetres in depth with a 5-centimetre entry wound.
[28]Although his report referred to ‘at least moderate force’ based on the fact that cartilage was penetrated Dr Burke agreed that the degree of force may be less if the victim is moving toward the knife. Also that other factors are relevant to degrees of force, such as the sharpness of the knife. Evidence of Dr Burke 18 February 2021, s 198B Transcript, 6-7.
[29]The Crown said the expert evidence supports the conclusion that you would have had to have used at least moderate force to inflict the wound. Your counsel disagreed, saying the evidence equally supported a conclusion that only minor force would have been required to cause the wound.
Gravity of the offence
Your crime was a grave one because it deprived Liam Cahill of the precious gift of life. Whilst the crime of manslaughter is inherently serious, I must look to all the circumstances of your offending to determine where it fits on the scale of objective gravity. The Crown submitted that this was a serious example of the offence and that your moral culpability is high.[30] However, Mr Matthews relied on the circumstances of excessive self-defence.
[30]Prosecution Submissions, [7].
I accept that the objective gravity of your offending is mitigated by circumstances of excessive self-defence. Liam had punched you in the head when you continued to insist that he leave the apartment, provoking you to defend yourself. The ensuing fight was unable to be broken up by the females present. This was a dynamic event that escalated out of control very quickly. No doubt you and Liam were angry and upset with one another at the time of this fight.[31] I accept that your decision to take a knife from the knife block was made on the spur of the moment without close attention to the kind of knife you had grabbed. Although your actions in stabbing Liam were rash and impulsive, after stabbing him once, you immediately desisted. Nevertheless, even accepting that you perceived a risk that Liam might grab a stubby and hit you, the fact remains that Liam was not armed when you stabbed him.
[31]Prosecution Submissions, [2(c)].
Both you and Liam had consumed drugs and alcohol, so it is likely you were both adversely affected by those substances at the time of the fight.[32] Of relevance to you, I find it likely that, coupled with your youth, the substances you consumed reduced your normal inhibitions and impaired your judgment at the time of the fight. Your actions in trying to escape from the apartment after the incident are a further reflection of your impaired judgment and immature thinking that night. Youthfulness and immaturity provide some degree of mitigation of moral culpability.
[32]Farrell said he had 10 to 12 drinks between arriving at the apartment that afternoon and the incident he also had ‘coke’ cocaine. He said both he and Liam consumed alcohol and ‘MD caps’ that night (ecstasy). Farrell ROI Q & A 575 – 589, 69-70, Depositions, 331-332. See also Report of Dr Burke dated 11 August 2020, 3 ‘The toxicology analysis showed a blood alcohol level of 0.14g/100ml, and the presence of MDMA and MDA (ecstasy), Depositions 837.
You did not immediately flee after you stabbed Liam, instead providing some small acts of assistance, until police arrived. Your attempt to escape police by scaling two floors of the exterior of the apartment tower reflects your heightened emotional state at that time.
Aside from your initial attempt at flight, you were remorseful when interviewed by police. You continued to be highly emotional, expressing disbelief at what had occurred, and sorrow at the loss of your friend.[33]
[33]Farrell ROI Q & A 30, Depositions 268 ‘[…] I stabbed Liam. He’s my best mate. I didn’t mean to kill him. I love him. That’s it’.
In light of all of the above, and bearing in mind the imprecision involved in any attempt to characterise objective gravity by reference to a generalised range, I find that your offending falls within the lower range of objective seriousness for the subject offence.[34]
[34]Noting that descriptors that rely on these broad categories have inherent limitations, see Lee v the Queen [2018] VSCA 343, [31]-[32].
Victim’s circumstances and victim impact statements
Liam Cahill was 22 years of age when you killed him. He lived in Pascoe Vale with his mother and worked as an apprentice plumber. He was due to complete his apprenticeship three months before his death.
The Court received victim impact statements from his parents Timothy and Pauline Cahill, and Liam’s sister Alycia. Liam’s father, Timothy Cahill, read aloud his victim impact statement to the Court. Mr Cahill spoke of the indescribable pain that Liam’s death has caused the family. He viewed it as his duty to nurture Liam into adulthood and to support him when he had his own family in the future. He feels these opportunities have now been taken from him. He described Liam as a loyal and loving son, who would do anything for his family and friends. He will dearly miss the fishing trips they would take together. They spoke often by phone to keep in touch. Since Liam’s death, Liam’s father has lost interest in fishing, which had been a hobby since childhood. He feels empty and expressed that the pain of losing his son will never cease. Pauline and Alycia also spoke of their great pain and sorrow in the victim impact statements they filed. The Court was given a poignant photo of Liam with his sister on a fishing trip.
I acknowledge the contents of each victim impact statement and the enduring sorrow and grief that Liam’s family continue to suffer. I also acknowledge that many of Liam’s friends have been emotionally scarred by what happened to Liam.
Your personal circumstances
You are currently 23 years of age. You were 22 at the time of your offending. You were raised in Newport with your two younger brothers. Apart from a brief period when you were 18 years old and lived with friends, you have always lived at home. Your father is a fire protection engineer and your mother is a fashion designer. Your parents are happily married. In the course of the plea, your counsel tendered a report from Dr Tanya Yuen, neurosurgeon, dated 15 June 2021 (‘Dr Yuen Letter’),[35] and a bundle of testimonials from friends and family.[36] I have taken those documents into account.
[35]Exhibit D2.
[36]Exhibit D3.
You grew up in a stable, loving home.[37] You faced some challenges growing up[38] and were a ‘hand full’ according to your father.[39] You attended Williamstown North Primary School and Williamstown High School. You started year 12 but did not finish, leaving school to work as a labourer, before commencing a roof plumbing apprenticeship when you were 19 years old. You enjoyed that work and were employed for three months, before your apprenticeship was disrupted in August 2018 when you sustained a hand injury at work. A golden-staph infection led to a spinal epidural abscess.
[37]Defence Submissions, [6(b)].
[38]Letter of Barry Farrell dated 6 June 2021, and letter of Noel Malcolm Heather dated 31 May 2021.
[39]Letter of Barry Farrell, 6 June 2021.
You were admitted to hospital on 2 August 2018, and your condition was life threatening. You were at serious risk of quadriplegia. You underwent emergency spinal-cord surgery and were put on intravenous antibiotics for six weeks. You spent four months in hospital recovering. You had to learn how to walk and use your bowels again after your surgery. You recovered but were left with ongoing issues with balance and co-ordination and you were advised against working as a roof plumber. You were cleared to work as a general plumber.[40]
[40]Dr Yuen letter, 1. Also, according to Rian Farrell’s father medical expenses were paid by the Worksafe Authority, and he was paid weekly loss of earnings benefits until recommencing work. WorkSafe have assessed him as having 52% incapacity, see letter of Barry Farrell, 6 June 2021; Plea Transcript, 77.
You continue to suffer issues with balance, motor function in your left leg, and problems urinating.[41] You have continued to receive medical treatment for these issues whilst on remand, and a catheter will be inserted in the near future. You have experienced recurrent nightmares about catheters being inserted and removed, and you have discussed this with a counsellor in prison. You are receiving physiotherapy with respect to your walking and issues with balance. Your physical and mental health treatment in custody has been somewhat disrupted due to the pandemic. I will return to this later.
[41]Letter of Barry Farrell, 6 June 2021, part of Exhibit D3.
In 2019, you commenced a general plumbing pre-apprenticeship. You managed to find employment with a small commercial plumbing company. You were eight months into the first year of that apprenticeship when, in early 2020, the COVID-19 pandemic hit Melbourne, and restrictions commenced. Your employment was terminated as a result.
It is clear that your medical condition took a great toll on you. Your father spoke of it leading to you ‘spiralling out of control’ in 2019, when you came into contact with the criminal justice system for the first time.[42] Your limited criminal history commenced in July 2019, when you were placed on a 24-month Community Corrections Order (‘CCO’) for several dishonesty and drug-related offences (including three drug-trafficking charges). Under the conditions of your CCO, you were required to complete a significant amount of community work and engage in drug treatment.[43] There is no material before the Court as to how you progressed on that CCO,[44] but it appears you were still subject to that CCO when you committed the offence before this Court.[45]
[42]Letter of Barry Farrell, 6 June 2021, part of Exhibit D3.
[43]Rian Farrell was also subject to supervision and Judicial Monitoring conditions.
[44]Mr Dickie for the Crown indicated the prosecution did not have any information from Community Corrections in this regard, Plea Transcript, 114.
[45]It appears the CCO would have been due to expire around 8 July 2021, being 24 months after the CCO commenced.
A further matter of concern is that on 8 January 2020 you were fined $1,500.00, without conviction, on a single charge of recklessly causing injury. That charge related to an incident on 4 January 2020 at a Southbank nightclub, when you were intoxicated and you punched a male twice to the face because of the role he played in your previous arrest.[46] You handed yourself in to police after the incident, made full admissions and offered to apologise to the victim for your actions.[47]
[46]Plea Transcript, 68-69; Preliminary Brief – Statement made by Informant, provided by the Crown via email on 8 June 2021.
[47]Preliminary Brief – Statement made by Informant, provided by the Crown via email on 8 June 2021: the reason given for assaulting the victim: ‘Because I was angry because of the previous thing and maybe because I had drank a bit’ […] ‘I regret what I did. I definitely will apologise to him.’
Regarding your substance use, you commenced alcohol and cannabis use in year 10. By the time of your acute medical episode in August 2018, you had been using a range of recreational drugs.[48] Your counsel described your drug use as ‘bingeing’, as against daily drug use, noting that you tended to binge to a ‘significant and concerning extent’ when in the company of others.[49] In 2019, you were drug-free while on bail for your drug and dishonesty offences. However, you relapsed while on the CCO. Your counsel accepted that your drug and alcohol use was problematic at the time of the offending, and that it probably played a role in the offence.
[48]Cocaine, speed, marijuana, MDMA, ketamine, LSD, ecstasy, magic mushrooms, Valium and marijuana according to the report of Dr Yuen.
[49]Plea Transcript, 68.
Your father, in his letter to the Court, expressed the view that when you lost your job during the pandemic in 2020, you went into a downward spiral, with a loss of dignity and self-worth.[50]
[50]Letter of Barry Farrell, 6 June 2021, part of Exhibit D3.
Regarding your mental health, your counsel submitted that you have experienced distress, guilt and regret about your offending. You have had nightmares about the night of the incident and receive antidepressant medication[51] to assist you with anxiety and sleeping difficulties.
[51]Mirtazapine, see Defence Submissions, [6(g)].
You have been drug-free whilst on remand and describe feeling more ‘clear headed’ than you have in a long while.[52] This has allowed you to write about your experiences whilst on remand, which has reportedly been beneficial to you.[53]
[52]Defence Submissions, [6(l)].
[53]Defence Submissions, [6(m)].
Plea of guilty and remorse
I accept that you pleaded guilty at an early stage. The Crown argued that this was not the ‘earliest’ plea, however I note that you were originally charged with murder, and could have raised self-defence for consideration of a jury if the matter proceeded to trial. At any event, given the more serious charge you were facing, I regard your plea as having been offered at an early stage.
Your plea of guilty to manslaughter entitles you to a significant sentencing discount based on the utilitarian value of the plea. A trial would have taken several weeks and may not have been heard promptly due to the pandemic. Your plea provides a degree of closure for Liam’s family, and avoided the need for further cross-examination of witnesses, including the young people who were present on the night of the incident. Precious Court resources have been spared. The Victorian Court of Appeal has recently held that the utilitarian value of a plea of guilty in the circumstances of the COVID-19 pandemic is greater than at other times, and should attract ‘a more pronounced amelioration of sentence than at another time’ because of the extraordinary pressures placed on court resources.[54] Whilst the backlogs are more substantial in the courts below, this Court is also under pressure accommodating jury trials, with the threat of lockdowns, while waiting for a greater proportion of the population to be vaccinated.
[54]Worboyes v The Queen [2021] VSCA 169, [35]-[39].
Your plea of guilty is also a reflection of genuine remorse. This is evidenced by your cooperation with police,[55] and the testimonials of your family and friends stating their observation that you are truly sorry for your crime.[56] Some friends who provided references for the Court were also friends with Liam Cahill. They describe the distress caused by your actions and your shame after having taken the life of your friend.
[55]Full admissions during interview on 31 May 2021.
[56]Letters of Barry Farrell, Brooke Johnson, Letter of Jason Kurzemnieks dated 4 June 2021, Letter of Fox Harper dated 31 May 2021, all part of Exhibit D3.
Burden of custody and hardship caused by COVID-19
Your counsel submitted that due to your youth and your physical ailments, you are a vulnerable prisoner. You were remanded in May 2020, when Melbourne was in the midst of its second lockdown. For many months after you first went into custody you could only have remote, electronic contact with your family. This must have been particularly difficult at your age, and being a first time prisoner. Mr Matthews highlighted the anxiety you have experienced on remand. Your physiotherapy, and, in particular, your mental health treatment have both been interrupted when lockdowns have been declared.[57] I acknowledge that you are a vulnerable prisoner and that you have experienced hardship because of your individual physical and mental health needs. Both parties agreed that the Court should take judicial notice of the fact that the COVID-19 pandemic has disrupted the delivery of rehabilitation services within the Victorian prison system, and has limited prisoners’ access to personal visits.[58] While it is hoped that vaccines will shortly become more readily available, it appears that restrictions will continue to wax and wane for some time. I will give weight to those factors that make imprisonment more burdensome for you than for someone without your health conditions.
[57]Plea Transcript, 68.
[58]A matter that was also noted in Worboyes v The Queen [2021] VSCA 169, at [18].
Current sentencing practices
The maximum penalty for manslaughter applicable at the date of your offending is 20 years’ imprisonment.[59] Manslaughter is an offence that can involve a wide range of circumstances leading to a broad spectrum of appropriate sentences.[60] Keeping this in mind, I reviewed a number of unlawful and dangerous act manslaughter cases involving individuals whose offence circumstances had some similar features to yours, including those referred to by the parties in their written submissions.[61]
[59]The maximum penalty for manslaughter has since increased to 25 years. See Crimes Amendment (Manslaughter and Related Offences) Act 2020, s 3 (amending the Crimes Act 1958, s 5).
[60]In Vu v the Queen [2020] VSCA 59, the offender pleaded was found not guilty of murder at trial, but found guilty of manslaughter. At [33], the Court of Appeal said: ‘The sentencing range for the crime of manslaughter is strikingly wide, as is the range of criminal conduct that can cause the relevant unlawful killing. The range of conduct commences with a “joke gone wrong” and extends to conduct “just short of murder”.’
[61]On the topic of current sentencing practices for manslaughter, a report from the Sentencing Advisory Council published in 2021 shows that a wide range of penalties have been imposed in the period from 2015-2015 to 2019-2020, although sentences have been tending to increase and more recently the maximum sentence has been increased by Parliament.
In DPP v Devey (No 2),[62] the 53-year-old offender pleaded guilty to manslaughter. Like this case, there was a limited factual dispute. In that case the offender disputed that he went to the kitchen and armed himself with a knife prior to the altercation in which the victim was stabbed.[63] The offender was a chronic substance abuser and was present at another man’s unit with the victim and others, all of whom were drinking heavily. An argument erupted and the offender was refused any more alcohol by the victim and told to leave. The offender put his bike helmet on to leave, but was still seated when he was punched by the victim. The offender walked out through the kitchen, followed by the victim, and in the ensuing scuffle the offender stabbed the victim once in the torso. He then fled the scene. The sentencing judge could not establish which of the two men initially produced the knife.[64] The personal circumstances of the offender differed from yours,[65] but the lead-up events bear some similarities.
[62][2021] VSC 121 (7 years and 6 months’ imprisonment, non-parole period was 5 years, 6 months).
[63]DPP v Devey (No 1) [2020] VSC 826.
[64]The prosecution case was that Devey walked into the kitchen and grabbed a knife, whereas the defence case was that the victim introduced the knife to the fight.
[65]The offender was much older and his criminal history and drug history was longstanding He had significant physical health difficulties that would impact him in prison and a previous PTSD diagnosis.
In R v Garrard,[66] the 21-year-old offender pleaded guilty to manslaughter. The offender had offered to sell cannabis to the victim. The offender and the victim became embroiled in a physical altercation in which the victim managed to get the offender in a headlock. The offender was armed with a knife and used it to stab the victim to the abdomen. Once again, the offender’s personal circumstances differed from yours,[67] but the background context of physical fighting is similar.
[66] [2020] VSC 154 (7 years, non-parole period was 5 years).
[67]It involved significant trauma due to childhood sexual abuse leading to drug addiction and homelessness. Incerti J found that during his evidence on the plea, the offender had ‘recognise[d] the wrongfulness’ of his actions and taken responsibility for them, [74].
In DPP v Beattie,[68] the offender pleaded guilty to manslaughter as a result of having stabbed his friend following a verbal argument. The victim who had been a friend of the offender for over 30 years had been staying with the offender, but after an argument the offender insisted he leave. The offender retreated to his bedroom and was in there when the victim sought to enter the bedroom. The offender armed himself with a knife and stabbed the victim in ‘a dynamic situation’ as the victim approached him. The offender called emergency services and rendered assistance, until police arrived.[69] Although there had been a verbal argument in the lead-up incident, the victim had not assaulted the offender. The Court found that although the offender did not instigate the fatal confrontation, the offender’s conduct was highly dangerous, and not a reasonable response to the circumstances. Again, the offender’s personal circumstances differed from yours.[70]
[68][2020] VSC 229 (6 years and 6 months’ imprisonment, non-parole period was 4 years).
[69]He himself tried to call 000 twice, but neither call connected. He then phoned a friend to attend, that friend attended and successfully phoned 000.
[70]The offender was 50 years of age at the time of sentence and was a heavy substance abuser since his adolescence.
I perused the sentences imposed in a number of other manslaughter cases involving a single stab wound, but with fewer similarities to those I have just mentioned.[71] All of the sentences I have referred to help inform the Court about current sentencing practice and are part of the mix of factors to be considered in arriving at a just sentence. In considering comparable sentences, I bear in mind that ‘[t]here is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case’.[72]
[71]See also: R v Dellamarta [2021] VSC 220 (7 years and 6 months’ imprisonment, non-parole period was 5 years); DPP v Ackerley (No.2) [2021] VSC 257 (6 years and 6 months’ imprisonment, non-parole period was 4 years); DPP v Awad [2019] VSC 706 (7 years’ imprisonment, non-parole period was 5 years); DPP v Frost [2019] VSC 672 (10 years and 6 months’ imprisonment, non-parole period was 7 years and 9 months).
[72]Per Nettle J in Markarian v R [2005] HCA 25, [66].
Sentencing purposes
Your counsel submitted that specific and general deterrence require less emphasis in your case due to your youth and good prospects of rehabilitation. The Crown submitted that general deterrence remains important because young people need to be discouraged from engaging in confrontations while under the influence of alcohol and drugs. I accept the Crown’s submission that general deterrence is important in your case. Young people do need to be deterred from getting into fights under the influence of drink and drugs and from resorting to edged weapons during fighting. Denunciation must also play a role in your sentence. Despite the dynamic circumstances of the fight, your actions, in bringing a knife into the fight, must be denounced. Punishment and community protection are less prominent sentencing purposes given the sudden and unplanned way in which the event unfolded. You had not armed yourself with a weapon until moments before the stabbing.
Regarding specific deterrence, your criminal history is limited and needs to be viewed in the context of the misfortune you endured due to your work injury and hospital admission. On the other hand, the Court observes that despite being placed on a CCO in 2019, in January 2020, you punched one of your peers without provocation, whilst intoxicated. Your past substance abuse, the January 2020 offence, and the nature of the offence before the Court suggest that some weight should be given to specific deterrence. However, your youthfulness and good prospects for rehabilitation allow the Court to moderate the weight to be given to specific deterrence.
Regarding prospects for rehabilitation, I note you have accepted responsibility for causing Liam’s death and the testimonials filed with the Court, together with your presentation in the record of interview, allow me to conclude that you are genuinely remorseful. You are strongly supported by family and friends, who are shocked and saddened by your crime.[73] Your father believes you are determined to turn your life around, and he is committed to helping you.[74] The strong support network available to you bodes well for your prospects of rehabilitation. Also in your favour is your past attitude to work shown by your determination to resume your plumbing apprenticeship after your discharge from hospital in 2019. You have also been working in the factory at the remand prison for five months, and have been accepted for full-time education to assist you with employment upon release.[75]
[73]Bundle of testimonials tendered on the plea.
[74]Letter of Barry Farrell, 6 June 2021. Rian Farrell speaks to his father from prison almost every day. I accept that these regular conversations assist his ongoing rehabilitation, as submitted by Defence counsel.
[75]Specifically he has been accepted into the following courses: Micro-business, computers, and hospitality, Plea Transcript, 80.
You will need to actively use your time under sentence addressing the dangers of substance abuse. No doubt your experience of being in prison will have sharpened your appreciation of the link between substance abuse and criminal offending.
You will carry the guilt of this crime with you for the rest of your life. This being your first time in custody, I accept that you have deeply reflected on your past lifestyle and your future path.[76]
[76]Letter of Barry Farrell, 6 June 2021.
You are still only 23 years of age. The Victorian Court of Appeal has often referred to the significance of youth as a factor in sentencing a person to a period of imprisonment.[77] For more serious crimes, youthfulness will often have less primacy. However, in considering the weight to be accorded to youthfulness as a factor in mitigation, all of the circumstances of the case and of the offender must be considered, including the nature of the crime, whether the offender’s prior history is bad, and whether the offender is remorseful. Taking account of all these factors, I consider that your youth and immaturity require significant consideration in mitigation of sentence, both because your youth helps explain why you acted as you did, and because of the importance of rehabilitation for young people.
[77]Mills v R[1998] 4 VR 235; Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372 [34]–[43].
Manslaughter is a Category 2 offence under the Sentencing Act 1991 (‘Sentencing Act’).[78] This means that the Court must impose a sentence of imprisonment on you, unless certain matters apply. There are no matters before me that would remove the requirement that this Court impose a sentence of imprisonment on you for your offending.[79]
[78]Sentencing Act, ss 3(1); 5(2H).
[79]Those matters are set out at Sentencing Act s 5(2H)(a)-(e).
I consider that the sentence I am about to impose is proportionate to the gravity of your offending taking into consideration all of the circumstances of this case. Pursuant to s 5(3) of the Sentencing Act, I have applied the principle of parsimony so that the sentence I impose is no more severe than is necessary to achieve the purposes for which the sentence is imposed.
Sentence
Mr Farrell, on the charge of manslaughter, you are convicted and sentenced to a term of imprisonment for seven years. I fix a non-parole period of five years. I declare that you have already served 409 days,[80] not including today’s date, by way of pre-sentence detention, to be reckoned as already served under the sentence I have just imposed.
[80]From 30 May 2020 until 13 July 2021.
Pursuant to s 6AAA of the Sentencing Act I declare that, but for your plea of guilty, I would have imposed a sentence of eight years and six months’ imprisonment, with a non-parole period of six years and six months.
I will make the disposal Orders sought by the Crown.
4
14
0