R v Gould
[2007] VSC 419
•26 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1401 of 2007
| THE QUEEN |
| v |
| DARREN PAUL GOULD |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2007 | |
DATE OF SENTENCE: | 26 October 2007 | |
CASE MAY BE CITED AS: | R v Darren Paul Gould | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 419 | |
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Criminal Law – Sentence – Manslaughter – Single stab wound to back of shoulder – Death caused by massive blood loss resulting in multiple organ failure.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Lincoln | Office of Public Prosecutions |
| For the Accused | Mr J. Saunders | Hale and Wakeling Barristers and Solicitors |
HIS HONOUR:
Darren Paul Gould, on Wednesday 3 October 2007, after a trial lasting eight days, you were convicted at the Supreme Court at Melbourne of the manslaughter of Michael Brown. You were acquitted on both murder and defensive homicide.
The maximum penalty for manslaughter is 20 years imprisonment.
Michael Brown died on 25 November 2005 as a result of having been stabbed by you on 20 November 2005. The 20th of November 2005 was a Sunday. You and the deceased and other friends and acquaintances had spent a good part of the day drinking together. Michael Brown, when sober, was highly regarded by his friends. He was a very different and difficult person when he had been drinking, and often became violent and irrational. That was his state on 20 November 2005. In addition to his problems with drink, he was also obsessed with his former girlfriend, Amy Fowler.
About the time of his death he had taken to accusing his friends, including you, of talking behind his back. He also alleged that you and others had been engaged in a sexual relationship with Amy Fowler. On 20 November 2005 drinking had started at 34A Aberdeen Road, Macleod, where the deceased had lived with the brothers, Robert, Lance and Peter Venn, and Lonnie Davis. The deceased was due to move out and live with his brother, but had stayed overnight at Aberdeen Road.
The drinking started reasonably early in the day and involved Robert and Lance Venn, Lonnie Davis and probably Amy Fowler. About midday you and Slav Monev came to the house and joined in the drinking. Amy Fowler had left by then. Peter Venn, who had weekend access to his daughter, asked the group to leave. In response to your invitation, the group went to your home at 1 Portree Street, Macleod. The deceased had been drinking quickly and was becoming increasingly paranoid about Amy Fowler. He was aggressive to all the members of the group. He continued to drink when at your house and probably consumed well over a “slab” (24 cans) of beer on the day.
Later in the day, probably between 9.00 and 10.00 p.m. (although in your evidence you put it much earlier), the deceased became much more aggressive towards you and you asked Slav Monev and Lance Venn to remove him from your house. They did so. Lance Venn took the deceased back to Aberdeen Road where he stayed for between half an hour and an hour. The deceased told Lance Venn that he was going back “to sort Darren out”. That was a reference to you. He was aggressive to Lonnie Davis.
He left the house. Although Davis was not paying particular attention to the matter, he did not see the deceased with a knife and did not believe that any knives were missing from the house at Aberdeen Road.
At about 11.00 p.m. the deceased returned to your house; he banged on the windows. That noise was loud enough to be heard by the witness Michael Snare, who was about 60 metres away and who thought it sounded like somebody banging on a nearby garage door. Shortly afterwards, he heard raised male voices.
The next thing Mr Snare noticed was hearing heavy footsteps coming toward his front door. It was the deceased, who was bleeding profusely. Mr Snare and Ms Elderton, who lives with him, gave such assistance to the deceased as they could. They called 000 and police and ambulance attended the scene. The deceased was taken to the Austin Hospital. He died there on 25 November 2005. He died of multiple organ failure caused by the massive blood loss from a single stab wound. That wound was behind the deceased’s left shoulder. Something had penetrated about six centimetres. The axillary artery had been “nicked”, causing the bleeding.
The police who attended were able to trace a trail of blood from Mr Snare’s front door to the front of number 1 Portree Street. You were not present when the police attended.
At that time you were on bail in relation to an incident involving a train driver. You stopped reporting on bail. You stayed away from 1 Portree Street, but that may have had as much to do with your relationships as it had to do with these events. The police regarded you as a suspect. They obtained a warrant to allow for the interception of your telephone.
There were two particular calls which became relevant. One was with Gordon Henderson. In that call you made it clear that you had deliberately stopped reporting on bail. In another call to Daniel Tavo you said “I’m just waitin’ for them to come around, but it is [a] bad thing what I did … No but it’s – it was something like I’ve shived … cunt sort of thing”.
When interviewed by the police you acknowledged that you knew the deceased but otherwise made a “no comment” record of interview.
You gave evidence. In that evidence you said that the deceased had returned to the house and that you had gone to the front door after you heard knocking on the window. You went onto the porch and the deceased asked to come into the house. You refused him entry. He rushed at you but you managed to push him off the porch. As you did that, a knife fell to the ground. That knife came from the deceased. You picked up the knife. You were standing on the porch above the deceased. You had the knife (a steak knife) in your right hand. Your hand was raised above shoulder height and was resting on the side of the house. You said that the deceased again rushed at you, you grappled with him, you still had the knife in your hand. The deceased moved back and said “you got me”. You said that you went back into the house and noticed a speck of blood on the end of the knife which you washed and threw into the kitchen sink. You said you have not seen the knife since.
It follows that your primary defence was accident and your secondary defence was self-defence or a combination of the two.
The following additional matters were of importance. Dr Dodd, a very experienced forensic pathologist, gave evidence that the injury would have required a moderate degree of force. He also said that “nicking” of the axillary artery in this way was very unusual. He said that the deceased was 190 centimetres tall and weighed 102 kilograms.
You said that you are 175 centimetres tall and at the time you weighed 72 kilograms. The jury accepted that you had deliberately stabbed the deceased. They found that you did not intend to cause death or really serious injury. On the evidence, both of those findings seem appropriate.
The issue then became one of self-defence. The final issue was whether or not the use of a knife in the circumstances was reasonable. I am satisfied that the jury were satisfied beyond reasonable doubt that the use of a knife by you in the circumstances was not reasonable. On any version of the events, at the time of the stabbing you were armed and the deceased was not. It was open for the jury to have concluded that you and not the deceased produced the knife.
There are, however, some matters in mitigation which arise from the circumstances. The deceased had returned to your home after being ejected. He was drunk, aggressive and probably irrational. I am satisfied that you had got to a point where you had enough of him and just wanted him to go away. You had also been drinking, but the evidence does not allow me to conclude whether or not you were drunk. I accept you were affected by what you had had to drink.
I accept that the deceased was bigger than you, but once you were armed, that was not a particularly important consideration. This is a case which involved one stab wound. It was to a part of the body where you would not reasonably anticipate that the wound would be fatal or even cause particularly serious injury. It did occur in circumstances in which you were frustrated with the deceased and your response had an element of punishment in it. In the circumstances I am prepared to regard it at the lower end of manslaughter cases involving the use of a weapon. It is to be contrasted with cases where wounds to the central part of the chest or even deep wounds to the abdomen or back are inflicted.
You have an extensive criminal history. You have 69 prior convictions from either 18 or 19 appearances. You were on bail when this offending occurred. That matter related to an incident involving a train driver who found you wandering on the train line. When he stopped the train and tried to remove you, you tried to engage him in a fight in front of an oncoming train. You were armed with a long metal object which was probably an umbrella. The train driver tried to get you off the track. The umbrella broke in the struggle. You struck the train driver in the chest with it and stabbed him in the left forearm. It seems that part of the umbrella went through his forearm. Those events occurred on 24 March 2005. On 19 April 2006 you pleaded guilty to causing serious injury recklessly and reckless conduct endangering life before Her Honour Judge Gaynor in the County Court.
Her Honour sentenced you to be imprisoned for two months on the count of recklessly causing serious injury and six months for reckless conduct endangering life. One month of the sentence on Count 1 was ordered to be served cumulatively upon the sentence on Count 2. That was a total effective sentence of seven months. There were 89 days pre-sentence detention taken into account. You finished serving that sentence on or about 22 August 2006. You had been in custody since 28 February 2006. You were arrested for the train incident on 24 March 2005 and remained in custody until 21 June 2005 when you were committed for trial and released on bail. You will be entitled to pre-sentence detention in relation to this offending from 28 February 2006 until 19 April 2006 and from 22 August 2006 until the date of sentence. As at the date of the plea (5 October 2007) you were entitled to 430 days.
The sentence imposed by her Honour Judge Gaynor is subject to appeal by the Director of Public Prosecutions. That sentence does appear to be a very merciful one, but whether it is subject to appellate error remains to be seen. One part of the sentence imposed by her Honour gives an introduction to the very lenient manner in which you have been dealt with by the Courts. Her Honour dealt with you for breach of a Community Based Order, she cancelled that Order and directed no further action.
The Community Based Order had been imposed by her Honour on appeal to the County Court from orders made at the Heidelberg Magistrates’ Court on 31 May 2004. That court had dealt with you for causing injury intentionally, unlawful assault, failing to answer bail, assaulting a police officer in the execution of his or her duty, burglary and theft. You also came upon that day for breach of a suspended sentence which had been imposed by the same court on 21 August 2003. That sentence related to handling stolen goods, five charges of failing to answer bail, hindering a police officer in the lawful execution of his or her duty, possession of a controlled weapon without excuse, going equipped to steal on that theft. On that day, you were also dealt with for breach of Community Based Order and fined $600. That Community Based Order had been imposed by the same court on 15 October 2003. I can only assume that after you went into custody in March 2005, the Community Based Order which had been for a period of 18 months virtually lapsed. It is important to note that there were conditions on that Order arising out of your use of alcohol and drugs and giving you yet another opportunity to get treatment.
It follows that at the time of the train incident and this offence you were on a Community Based Order. You were on bail at the time of this offending.
You have been released on many Community Based Orders in the past and probably breached most of them. You had been placed on suspended sentences and one set of matters were adjourned for two years by the County Court on appeal in July 1999, on your undertaking to be of good behaviour. You seem to have almost completed that two year undertaking, but whether you did or not, you were never dealt with for breach of it. That appeal had been for an aggregate sentence of six months’ imprisonment. In June 2001 you received a further 12 month suspended sentence and although you were twice dealt with for breach, no further action was taken. It was a condition of the adjournment that you seek treatment for your addiction to heroin.
It is clear that over a ten year period you have been treated very leniently by the courts. On some occasions you have responded to that leniency, but from June 2001 your offending appears to have escalated.
It is perhaps ironic that one of the things which impressed her Honour Judge Gaynor about you was the way you had behaved when in prison. That behaviour gives a glimpse of hope for the future.
At various times in your life you have been addicted to drugs. You have seen the worst side of addiction in the death of both your partner (the mother of your two elder sons) and your brother.
You had a great deal to drink on 20 November 2005. You had by then been involved in the events of March 2005 which must have demonstrated to you the problems associated with your abuse of alcohol, particularly when coupled with the use of drugs of addiction, whether prescribed for you or not.
There is nothing about your substance abuse which can mitigate your behaviour. You have a long history of offending driven, in the main, by substance abuse. You deserve credit for ending your heroin addiction but, if as I suspect, it has been replaced by alcohol and other drugs, then you are still a long way away from recovery.
This is a homicide case, for the reasons I have earlier expressed, not at the most serious end of unlawful and dangerous act of manslaughter cases on its own facts. You were on bail for a not totally dissimilar offence at the time of offending. You have a number of prior convictions for violent conduct. Many of those appear to be of a relatively minor nature, but your offending has been on an ascending scale, even though you have been given every opportunity in the past.
It follows that personal deterrence will play a significant part in this sentence.
The question of general deterrence is also important. The almost arbitrary use of knives seems to be becoming prevalent in our community. This case shows how dangerous the use of knives actually is.
I must have regard to just punishment.
I have been provided with a report from Mr Bernard Healey, psychologist, which was prepared for your 1999 matters and a report prepared by Dr C. Newlands, psychiatrist, which was prepared for the plea before her Honour Judge Gaynor and have taken into account the matters set out.
You are now 37 years of age. You were educated to Year 10 at Macleod Secondary College. You left part way through Year 11. You struggled with literacy and were teased.
You became an apprentice boilermaker but were troubled by many of the things which troubled you at school and you did not complete your apprenticeship.
You worked at factory and labouring jobs, as a meat worker and in roofing. You last worked in about 2003.
You suffer from depression for which you take prescription medication, but it did not appear to have played much, if any, part in this offending. I have borne it in mind in fixing the sentence I am about to impose.
You have the sole care of your two sons now aged 17 and 16. You have had the care of them since the death of their mother from a heroin overdose in 1997.
You appear to have been involved in a series of relationships since 1997. After the commission of this offence, you commenced a relationship with Ms McKay and you were living with her at the time of your arrest. There is now a child of that relationship. I accept that you care about your children and have done the best with your sons in very difficult circumstances.
It is submitted on your behalf that rather late in life you have started to mature. In your own interests that is crucial because it is absolutely clear that otherwise you will spend increasingly large amounts of your life in custody.
As I said at the plea, it is fair to say that you regret what you have done. In particular, I accept, that you regret that your actions caused the death of Michael Brown. I give you credit for the fact that your trial was conducted sensibly and expeditiously.
The key to your future will depend upon your ability to discontinue your abuse of alcohol and other drugs. You did get off heroin, but it seems prescription drugs and alcohol have taken its place. You now seem to have at least some reasonable appreciation of the consequences and are attempting to do something about it. You have been in custody since 28 February 2006. Although the particular offending is not in the category of the worst kind of unlawful and dangerous act manslaughter, I am obliged to have regard to your history and in particular that you were on bail at the time of this offending.
On the charge of manslaughter I sentence you to be imprisoned for 7½ years. You have never had the benefit of supervision on parole in the past. There are some features of your earlier offending which lead me to conclude that supervision would be of assistance to you.
I fix a period of five years before you are eligible for parole. That is a slightly lower than usual non-parole period for a head sentence of this kind, but it is designed to give you a longer period of supervision in the community than usual in the hope that it will assist you.
You have been in custody directly in relation to these matters for 451 days.
I declare that a period of pre-sentence detention being 451 days be reckoned as having been served as part of this sentence and I direct that this declaration be entered into the records of the court.
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