R v JL
[2024] VSC 803
•19 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0315
| THE KING | Crown |
| v | |
| JL | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 October 2024 |
DATE OF SENTENCE: | 19 December 2024 |
CASE MAY BE CITED AS: | R v JL |
MEDIUM NEUTRAL CITATION: | [2024] VSC 803 |
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CRIMINAL LAW — Sentence — Manslaughter — Category A serious youth offence — Plea of guilty — Youth offender — Single stab wound — No premeditation — Limited criminal history — Difficult childhood — Bugmy considerations — Verdins enlivened — Positive prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | K Churchill B Goding | Office of Public Prosecutions |
| For the Accused | J Gullaci SC D Dempsey | Victoria Legal Aid |
HIS HONOUR:
Introduction
JL, on 11 September 2024, you pleaded guilty to killing Adam Bockhodt on 3 June 2023 by way of manslaughter.
The maximum penalty for the offence of manslaughter is 25 years’ imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 5.
Background
Mr Bockhodt was born in Melbourne on 17 August 1988 and was 34 years of age at the time of his death. He is survived by his mother, Bridget Drowley, stepfather, James Drowley, and half‑sister, Jennifer Gray.
Mr Bockhodt completed his schooling at Caulfield Primary School and Glen Eira College. He enjoyed playing baseball from an early age, and was known by his family and friends as an animal‑lover, who had a good sense of humour, and who was extremely loyal to those close to him.
Despite the significant support of his mother, Mr Bockhodt commenced exhibiting some antisocial behaviours during his youth, which resulted in several periods of juvenile detention. Tragically, Mr Bockhodt struggled with drug addiction for most of his life. I do not propose to discuss his background in any detail out of respect for his memory and his grieving family. I have only mentioned these matters in order to provide some understanding as to how his world came into collision with yours.
Mr Bockhodt had been friends with a woman, LC, for about 15 years. The pair had been in a romantic relationship for some time, however, once that ceased, they remained friends.
Events leading up to the offending
You began chatting with LC through social media, and met her for the first time on 31 May 2023 when she invited you to her apartment in South Yarra. You stayed at her apartment for the next two days, during which time you both consumed alcohol together. On various occasions across the 48‑hour period, you told LC that you were in love with her, to which she did not respond other than to thank you.
Between 5:00pm and 5:30pm on 2 June 2023, LC left her apartment to go to the cinema. Shortly after 5:30pm, you left the apartment, taking with you several of her possessions, including her house keys, a Louis Vuitton bag, a North Face puffer jacket, Prada sunglasses, a lanyard, and prescription medication.
You then returned to your accommodation in Frankston, which was a residential care home operated and staffed by a family services organisation. When your carers arrived to collect you from the Frankston railway station, you appeared to them to be substance affected, and you informed them that you had taken 80 mg of Oxycontin, four or five Xanax tablets, and had consumed several glasses of Hennessy alcohol.
Between 6:00am and 7:00am the following morning, 3 June 2023, LC and Mr Bockhodt, whom LC had arranged to assist her with recovering the items you took, arrived at your accommodation in Frankston. While travelling to where you were living, LC posted various videos on the social media platform, TikTok, in which Mr Bockhodt said, ‘you’re fucked now, cunt’. Mr Bockhodt also left a voice message on your phone calling you a ‘little rat’, and noting that he was ‘coming for you’, and if you did not return the items you would be ‘dancing with the devil’.
When Mr Bockhodt and LC arrived at your accommodation, they began calling out to you to return LC’s items. Your carers contacted 000 for assistance and police were requested. Police arrived and, on conducting a search, located and returned LC’s lanyard, Louis Vuitton bag, black North Face puffer jacket, and two bottles of alprazolam and pregabalin capsules which were found by one of your carers.
You spoke with a police officer at the scene, and confirmed that you had spent the previous night with LC, who had given you drugs and tried to encourage you to sell them. You stated that you had taken Oxycodone and Xanax, as well as some other medications. You denied stealing from LC.
Upon return of the items, LC, in the company of Mr Bockhodt, left the premises and returned to her apartment.
On learning that the medication had been given to LC, you immediately became agitated. You broke down crying, explaining that you were hearing voices and had homicidal thoughts. Your carers drove you to Frankston Hospital, where you were assessed by a mental health nurse who conducted a mental health assessment. The nurse concluded that you might have been suffering from mania complicated by substance misuse, and that you were a medium risk of harm to others. The on‑call psychiatrist wrote you a prescription for a low dose of Olanzapine, and prepared a further plan for management of your mental health.
Despite your behaviour prior to attending the hospital, and the information you conveyed to medical staff, it appears that, in fact, you were not having a mental health episode and, instead, you obtained the prescription with the intention to on‑sell the medication. Upon your release from hospital, you posted a photo of your prescription on social media with the caption, ‘in and out in a couple hours … how to bring cash to your door like fresh air’.
On the journey back to your accommodation in Frankston, you engaged in a text message exchange with LC and organised to collect a pair of shoes from her apartment that evening.
Shortly after 5:00pm, you telephoned a friend, KA, and were overheard saying either, ‘I’ll get the knife’ or, ‘yeah, bring the knife’. At about 6:00pm, you arranged for transportation to take you to Bonbeach railway station, during which you left a voice message for LC, in which you stated, ‘I love you, don’t set me up. I’ll get my ABN this week. I’ll do a lot better for you’. When at the station, you met with KA who provided you with a hunting knife. You concealed the knife under your clothing and boarded a train to take you towards South Yarra.
The offending
An Uber collected you from Elsternwick railway station, and at about 8:00pm you arrived at LC’s apartment in South Yarra. LC gave you security access to the building, and you walked through the foyer and entered the lift. Once inside the lift, you removed the hunting knife from under your clothes and turned it around in your hands before again concealing it. You then exited the lift on level one of the building and proceeded to LC’s apartment.
Present inside the apartment at that time was LC, her friend MH, and Mr Bockhodt. Upon your arrival at the apartment, you had a conversation with LC who was positioned in the doorway. She then invited you inside, where you spoke for a brief period. At this time, MH was sitting on the couch in the lounge room, and Mr Bockhodt was standing in the doorway to the spare room.
Mr Bockhodt then proceeded to move towards where you and LC were speaking, at which time you produced the knife and stabbed him once in the chest. Mr Bockhodt hunched over and removed the knife, before staggering into the kitchen where he fell to the floor. He was bleeding significantly. You then fled the apartment, collecting the knife on the way.
LC and MH called 000 while a neighbour, MA, attended the apartment on hearing screams for help, and assisted Mr Bockhodt by using a towel to try and stem his bleeding. Mr Bockhodt lost consciousness and his breathing became increasingly difficult and, after approximately 30 seconds, it stopped completely.
Police arrived at LC’s apartment a short time later and attempted to provide first aid. Paramedic units arrived shortly thereafter, and at 8:20pm all resuscitation efforts ceased and it was determined that Mr Bockhodt was deceased. The single stab wound to the chest was later formally confirmed as the cause of Mr Bockhodt’s death.
After leaving LC’s apartment, you fled the area, travelling southbound onto Bendigo Street, Prahran. Whilst fleeing, you recorded a video on your mobile phone in which you brandished the knife, which appeared to have blood on it, and said, ‘Any of you cunts try to set me up again, any of youse, just know what will happen’.
You then dumped the knife outside a property on Malvern Road in South Yarra, which was later located by detectives, and arranged for an Uber to collect you and transport you to a location on Alma Road in St Kilda, at which you met a friend, KC.
Over the following three to four hours, you contacted various associates by telephone, and at approximately midnight on 4 June 2023, you visited another friend who resided at Inkerman Street in St Kilda, before finally returning home to Frankston shortly before 1:00am.
Arrest and interview
On arrival at your residence in Frankston in the early hours of 4 June 2023, you were apprehended by police officers and told that you were under arrest for murder and cautioned. You were transported to Melbourne West Police Station where, at 4:50pm, a Forensic Medical Officer deemed you fit for formal interview. You answered ‘no comment’ to a majority of the questions then asked by police, and you were subsequently charged and remanded in custody.
Procedural history
Various preliminary hearings in this matter proceeded in this Court throughout the latter part of 2023. In March 2024, multiple section 198B examinations were conducted.[2]
[2]Pursuant to Division 3A of the Criminal Procedure Act 2009 (Vic).
On 6 August 2024, you applied for a sentencing indication hearing on one charge of manslaughter, which was not opposed by the prosecution. This application proceeded before me on 30 August 2024 and was granted. On the same day, parties made submissions with respect to the indication.
On 3 September 2024, I ruled that, should you plead guilty to a charge of manslaughter, I would sentence you to a youth justice detention order which, I noted, has a maximum possible length of four years. You accepted this indication, and entered a plea of guilty to the charge of manslaughter on a new indictment on 11 September 2024, this being approximately 16 months after you were originally charged.
Victim impact statements
The Court received a number of victim impact statements from those closest to Mr Bockhodt, each of which I have read and carefully considered. They each attest to the fact that Mr Bockhodt was a much loved family member who will be terribly missed.
Bridget Drowley
Mr Bockhodt’s mother, Bridget Drowley, describes how she feels she has a life sentence following the death of her son, who she will never see again, nor the family he could have had. Ms Drowley notes that her son had grown into a beautiful man, whom she adored. She details how she wishes she could have been there in her son’s final moments, and that she will never be ready to let him go.
Jennifer Gray
Mr Bockhodt’s half‑sister, Jennifer Gray, details the heartbreak of losing her brother, who would do anything for the people he loved. Ms Gray describes the impact that Mr Bockhodt’s death has had on her life. Following her brother’s passing, Ms Gray took two weeks leave from her work and, upon her return, experienced various emotional challenges. Further, Ms Gray and her family have faced financial difficulties as a result of her continued absences from work which she has taken to enable her to grieve, and to attend counselling sessions and court hearings. Ms Gray explains that she requires psychological support to assist with anxiety and sleeping, and that she feels guilty to be alive.
Personal circumstances
Childhood and family relationships
You were born on 1 November 2005 to your mother, SL. You did not know your father and your mother has never revealed his identity to you.
Your childhood was plagued with many difficulties. Your mother suffered from significant mental health challenges, primarily associated with her diagnoses of schizophrenia, depressive disorder, dissociative disorder, and personality disturbance disorder. The schizophrenia from which she suffered seemingly had the most prominent effect on her of all of these conditions. Your mother also abused alcohol, and she and her various partners and other associates abused drugs and alcohol in your presence.
A Child Protective Services (‘CPS’) investigation was commenced on 2 November 2005, just one day after you were born, due to concerns regarding your mother’s poor mental health and poor provision of antenatal care. CPS remained involved in your life throughout your childhood and adolescence, up until you turned 18 years of age, resulting in various protection and supervision orders, as well as various periods of out‑of‑home placement. At least eight notifications were made to CPS about your welfare throughout your childhood.
Your relationship with your mother was atypical. You experienced physical violence at the hands of your mother, and it is suspected by CPS that you suffered some form of sexual abuse as a child, and you have disclosed as such in mental health assessments since your offending. I note that CPS documents do not specifically name your mother as the suspected perpetrator of your sexual abuse.
CPS reports from your early childhood refer to neglect on the part of your mother, in addition to your exposure to unsafe behaviours. In your adolescence, concern was raised with respect to your mother’s inadequate supervision of you, lack of medical care or intervention when you were injured or alcohol‑affected, your poor school attendance, association with antisocial peers, and engagement in substance abuse and drug dealing. Instances of family violence shifted from being solely perpetrated by your mother, to being inflicted on a mutual basis by both of you towards each other.
You experienced multiple periods of placement in out‑of‑home care, although the specific dates during which you were in care or with your mother are unclear. In 2018, whilst in the care of your mother, you were involved in an altercation with her associate and were subsequently placed in out‑of‑home care. It is reported that, in April 2019, you were sexually assaulted by a peer in out‑of‑home care which resulted in your relocation to residential care. You experienced difficulties in residential care, which include encouragement to use illicit substances, being burnt with cigarettes, and exposure to sexual exploitation which resulted in you applying for an intervention order against a 27 year old man. At some stage in 2019, you returned to living with your mother.
Between 2020–2021, at the age of 15 years, you were placed in out‑of‑home care with a man named Eugene. You experienced a period of stability during your time with Eugene, including maintaining employment, engaging in clear conversation, and displaying no signs of substance abuse. There is some uncertainty with respect to the exact length of time you spent in Eugene’s care, however, in May 2023, you relocated to youth residential accommodation due to Eugene’s heroin use. You remained in this accommodation and were under the care of the Secretary of the Department of Families, Fairness, and Housing up until the time of your offending.
Drug and alcohol use
Your drug use commenced at the age of eight, when you started smoking cannabis, and by age 12 you were a regular user. You have consumed a vast array of substances throughout your life, including benzodiazepines such as alprazolam (Xanax), quetiapine (Seroquel), ecstasy, cocaine, hallucinogens, and methamphetamine. You also consumed alcohol, often to the point of intoxication.
Education and employment
You attended a mainstream primary school, however, your attendance was poor. When you moved on to secondary school, you expressed reluctance to attend and frequently requested to move to a different school. At some stage during your early high school years, concerns were raised by the school with respect to your relationship with an older male teenager, which you disclosed to staff was sexual in nature. The resolution of this matter is unknown.
From 2018, you attended St Joseph’s, a flexible learning school, which you enjoyed to a considerably greater extent than your time in mainstream schooling. Despite your inconsistent attendance, you completed the equivalent of year 10, and have reported adequate literacy and numeracy skills.
Mental health
There is limited documentary information with respect to your mental health history.
You have had limited formal engagement with mental health services in the community throughout your life, apart from a brief engagement with Headspace and a potential self‑report to Orygen, both of which are youth mental health services. You indicated to staff in youth detention that, when reporting to Orygen, you had a diagnosis of Bipolar Affective Disorder or Schizoaffective Disorder, however, no such diagnosis is formally recorded in any of the relevant materials.
There is reference in various records to one ‘psychotic episode’ which you experienced sometime between 2021 and 2023, however, it is possible that this episode refers to your appearance at Frankston Hospital in June 2023, which you acknowledge was for the purpose of obtaining medication to on‑sell. No concrete evidence with respect to this episode is recorded anywhere.
In 2019, you had an overnight hospital stay following an episode of self‑harm while in residential care. You denied intending to take your own life, and noted that you had no suicidal thoughts or plans.
Further self‑harming behaviour is reported by Justice Health since your time in youth detention. Again, however, you deny any intention to take your own life.
Criminal history
You have a previous criminal history comprising one court outcome in 2022. This matter involved a number of aggravated burglaries (person present), thefts, thefts of a motor vehicle, unlicensed driving, speeding, failure to stop on police direction, possession of a prohibited weapon, and dealing with property suspected of being proceeds of crime. The total effective sentence imposed by the Frankston Children’s Court was a six‑month good behaviour bond without conviction. This bond was dismissed on 9 May 2023 following your compliance with the order.
Submissions for JL
Gravity of the offending
As to the gravity of your offending, your counsel concedes that manslaughter is a serious offence, however, notes that manslaughter offending can occur in a variety of ways and that determination of the objective gravity in such cases must be determined on the individual facts and circumstances of the particular matter under consideration.[3]
[3]Sentencing Act 1991 (Vic) s 5(2)(c).
Counsel on your behalf submits that, when considering a range of factors, your offending falls in the low to mid‑range of seriousness for the offence of manslaughter. The Court’s attention is drawn to the fact that you inflicted only one stab wound to Mr Bockhodt as a result of one stabbing motion, and that the offending was not as a result of a frenzied attack involving multiple stab wounds or blows. You also committed this offending alone, with Mr Bockhodt not being attacked by a larger group, and the offending was not protracted, as your presence in the apartment was likely no more than one minute or so.
Your counsel concedes that you should not have been in possession of a knife, and that general and specific deterrence are important matters for the Court’s consideration given the prevalence of knife crime. However, it is submitted that you only obtained the knife in the belief that it would be required for protection, which was formed on the basis of the communications you had received that day from LC and Mr Bockhodt. However, objectively, you did acquire the knife and you were prepared to use it if it became necessary.
Further, counsel on your behalf submits that your offending was not premeditated, and occurred spontaneously in the dynamic circumstances with which you were faced when visiting LC’s apartment. Your counsel concedes that your behaviour was a clear overreaction to Mr Bockhodt’s mere movement towards you in the apartment, and that you had no awareness that he was in possession of a knife himself. Despite your overreaction, it is contended that this is not a case in which you had decided to stab or threaten someone with a knife prior to entering the apartment, but instead is a matter in which you responded to a perceived threat to your safety which was genuinely held on the basis of communications you had received in the preceding 24 hours.
With respect to your comments made to staff at Frankston Hospital on the day of the offending, namely that you had an intention to harm others, your counsel dismissed these as you feigning symptoms of a mental disorder in an attempt to obtain medication which you could then sell. It was not conceded on your behalf that these comments were an accurate reflection of your state of mind on the day of the offending.
Personal background
The reports of clinical neuropsychologist, Dr Laura Anderson, dated 28 May, 23 August, and 9 October 2024, were filed with this Court and are relied on by your counsel with respect to various matters.
These reports detail your personal background and the challenges which you have faced throughout your childhood and adolescence, much of which I have referred to above.
It is emphasised by your counsel that CPS were involved in your life almost immediately after you were born due to their concerns with respect to your mother’s poor mental health. Your mother struggled significantly in this regard, with schizophrenia having the most prominent impact on her wellbeing.
CPS was a constant presence in your life, from your childhood through to your adolescence, and up until you turned 18 years of age. Various matters necessitated their involvement, including physical violence, neglect, and exposure to unsafe behaviours in the family home. As a consequence, there were many occasions on which you were moved to out‑of‑home or residential care, however, these experiences also proved fraught, as you reported suffering from sexual and physical assault in these environments.
Your attendance at both primary and secondary school was poor, although you report having completed the equivalent of year 10. At some stage during your youth, you began interacting with antisocial peer groups, which raised some concern amongst staff at CPS.
You commenced using drugs from as early as eight years of age, and were reportedly a regular cannabis smoker at age 12. You have also reported consuming benzodiazepines, ecstasy, cocaine, and other illicit substances.
Your counsel, in the context of discussing your background, drew the Court’s attention to your diagnosis of Complex Post‑Traumatic Stress Disorder, and provisional diagnosis of Borderline Personality Disorder.
Plea of guilty
Counsel submitted that it is open to the Court to consider your plea of guilty an early plea, given that this matter was part of the fast‑track procedure, which immediately brought it to this Court, with section 198B hearings following shortly thereafter.[4] This submission is made despite the fact that, as is acknowledged by your counsel, the plea came following a sentencing indication and was made very shortly before your trial which was due to commence on 30 September this year.
[4]Ibid s 5(2)(e).
Even if this Court rejects the submission to classify your plea as early, your counsel contends that the utilitarian value of your plea is great.[5] It is submitted that this matter is one which, should it have proceeded to trial, contains numerous triable issues, and there was a realistic and rational possibility that a jury could have found you not guilty of murder or manslaughter.
[5]Ibid.
This submission is founded on your counsel’s argument that it was open to you to advance an argument of self‑defence at a potential trial, based not only on your own evidence, but on the ‘significant volume’ of evidence the prosecution may have called which would support such a claim. This evidence includes the messages sent to you and videos posted by LC and Mr Bockhodt; LC and Mr Bockhodt’s attendance at your residence; Mr Bockhodt’s presence at LC’s apartment when you were collecting your possessions; and Mr Bockhodt’s possession of a knife. Your counsel argues that Mr Bockhodt was engaged by LC as an enforcer, whose presence was intended to intimidate you.
With respect to how such a defence would be argued given that you, in light of the threats you received, did not have to attend LC’s apartment that day, your counsel notes that you did attempt to avoid LC’s apartment by arranging to meet her on Chapel Street to collect your items. However, this did not eventuate, and it is accepted that this is a matter which would have been the subject of challenge by the prosecution at trial.
There is also some evidence, to which your counsel draws the Court’s attention, of you seeking LC’s confirmation that she would be alone when you came to collect your possessions. This conduct, as put forward by your counsel, is consistent with you attempting to avoid a confrontation at LC’s apartment.
In the context of the utility of your plea, your counsel makes reference to the absence of a key witness at a potential trial, LC, who passed away even prior to the section 198B examinations. It is argued that there would be a real issue with respect to how much and what portions of her evidence would be admissible at trial in circumstances in which she had not even been cross‑examined.
The evidence of MH, who is the only other witness of the offending, is also identified by your counsel as somewhat difficult, as there is some doubt as to the extent to which she was genuinely attempting to recall the events in question.
Your counsel thus contends that the cumulative effect of these matters is to heighten the utility of your guilty plea to a significant extent.
Remorse
Counsel submits that there is evidence of your remorse, namely, your guilty plea, your expressions of regret to Dr Anderson with respect to the chain of events leading up to your offending, and Dr Anderson’s conclusion that you demonstrate a high level of insight and awareness into your behaviour.[6] It is noted by counsel that the level of remorse expressed by you is a complex matter, which is somewhat distorted by your discussions with Dr Anderson about the offending in which you offer an alternate version of events to those agreed upon by the parties.
[6]Ibid s 5(g).
During oral submissions, in the context of discussing matters indicative of remorse, your counsel makes reference to an ‘unprompted’ letter drafted by you on the morning of the plea, in which you note that you are ‘responsible for the loss of a son and a brother’, and ‘will forever hold a tremendous amount of guilt and shame’.
Criminal history
Counsel refers to your limited criminal history, which is discussed above, and draws the Court’s attention to the fact that you have never experienced any time in custody and have had limited dealings with the criminal justice system.
Youth and serious youth offence
Counsel submits that your youthful age at the time of the offending is a significant matter for the Court’s consideration. You were 17 years of age when you committed this offence and, as such, were a ‘child’ as defined in the Children, Youth and Families Act 2005 (Vic) (‘Children, Youth and Families Act’), and a ‘young offender’ as defined in the Sentencing Act 1991 (Vic) (‘Sentencing Act’).[7] Given your age, your counsel contends that the principles elucidated in R v Edwards and R v Mills have application in this matter.[8]
[7]Children, Youth and Families Act 2005 (Vic) s 3(1); Sentencing Act 1991 (Vic) s 3(1).
[8]R v Edwards (1993) 67 A Crim R 486, 489; R v Mills [1998] 4 VR 235, 241.
Due to your unstable and dysfunctional upbringing, it is your counsel’s submission that rehabilitation is a highly relevant sentencing consideration in this matter. Reference is made to the Court of Appeal’s comments in Azzopardi v The Queen, in which it is stated that youth as a mitigatory factor is only extinguished in cases of the ‘gravest criminal offending’.[9] Despite the extent to which rehabilitation must yield to other key sentencing considerations given the serious nature of your offending, counsel contends that rehabilitation is an important matter, especially given that the offending was committed impulsively.[10]
[9]Azzopardi v The Queen (2011) 35 VR 43, 57 [44].
[10]DPP v JA & Ors [2023] VSC 531 [25]–[27].
As you are a ‘young offender’ by virtue of the Sentencing Act, it is open to this Court to make a youth justice centre order if satisfied of the matters in section 32(1) of that Act. Your counsel submits that such an order is appropriate given that your prospects of rehabilitation are reasonable, and that you are immature and likely to be subject to undesirable influences if remanded in an adult prison.[11]
[11]Sentencing Act 1991 (Vic) s 32(1).
You have pleaded guilty to manslaughter, a category A serious youth offence under the Sentencing Act, and therefore this Court is prohibited from making a youth justice centre order unless satisfied that exceptional circumstances exist.[12] Counsel notes that exceptional circumstances can be composed of a combination of relatively common matters, and that assessment of such is a fact dependent determination.[13] It is your counsel’s position that this Court should find that exceptional circumstances exist, and that any period of detention that may be imposed should be served in a youth justice centre.
[12]Ibid ss 3(1), 32(2C).
[13]Castillo (a pseudonym) v The King [2023] VSCA 150 [47].
Your counsel relies on various matters to establish exceptional circumstances in this matter, namely, the circumstances of the offence; your personal history; guilty plea; limited prior history and no pending matters; your age at the time of the offence; positive engagement in programs and education while in custody; childhood deprivation; efforts to address your mental health issues whilst in custody; and your good prospects of rehabilitation.
Should a youth justice centre order be made in this matter, your counsel reminds the Court that it is limited to detaining you in a youth justice centre for a maximum period of four years.[14]
Bugmy principles
[14]Sentencing Act 1991 (Vic) s 32(3)(b).
Your counsel submits that the principles established in Bugmy v The Queen are applicable in this matter given that your childhood proceeded in an environment of ‘parental neglect and deprivation’.[15] As I have detailed above, and as was described extensively by your counsel in oral submissions, you were exposed to physical violence and alcohol and drug abuse as a child, and CPS intervention resulting in placement in out‑of‑home care was a frequent feature of your youth. As such, it is argued on your behalf that these matters, as held in Bugmy v The Queen, are extremely relevant to the assessment of your moral culpability and act as a strong mitigating factor.[16]
Verdins principles
[15]Bugmy v The Queen (2013) 249 CLR 571, 594–5 [43]–[44].
[16]Ibid.
With respect to your mental state, counsel draws the Court’s attention to the conclusion of Dr Anderson that your ‘significant, severe, and multi‑faceted’ early childhood experiences created in you a propensity to engage in impulsive violent behaviour, in addition to your diagnosis of Complex Post‑Traumatic Stress Disorder and provisional diagnosis of Borderline Personality Disorder. These matters, your counsel submits, enliven limb one of Verdins, and reduce your moral culpability.[17] Your counsel concedes that this extent of the reduction is limited.
[17]R v Verdins & Ors (2007) 16 VR 269, 276 [32].
Counsel further contends that Verdins limbs five and six are also applicable in this matter given Dr Anderson’s opinion that your ‘underlying complex trauma symptomology’ may undermine your ability to cope within a custodial setting, and that custody may contribute to a decline in your mental health and overall functioning.[18] However, it is conceded by your counsel that the applicability of Verdins in this context is ‘very modest’ at best, especially given that you have been in detention for some time and appear to have fared well.
[18]Ibid.
Time in detention
Your counsel emphasises your productivity throughout your time in detention, in which you have been placed since June 2023, as a further matter in mitigation.[19] It is noted that you have participated in a number of programs and education courses over the past 17 months, have had 24 appointments with a mental health clinician, engaged with a youth addiction dual diagnosis service, and are now on anti‑depressant medication.
[19]Sentencing Act 1991 (Vic) s 5(2)(g).
Prospects of rehabilitation
It is submitted that you have good prospects of rehabilitation based on the following matters, many of which I have referred to in greater detail, namely: your age; limited prior history and lack of pending matters; positive behaviour in detention; receipt of mental health treatment; completion of behavioural programs; your education; access to the CPS transitional program, ‘Better Futures’; and a ‘moderate’ risk profile as opined by Dr Anderson.[20]
[20]Ibid.
Current sentencing practices
The Court’s attention has been drawn to various matters in which offenders of a similar age to you have been sentenced for the offence of manslaughter,[21] including DPP v Ali & Ors;[22] R v MA;[23] DPP v JA & Ors;[24] DPP v ST;[25] R v KV;[26] and R v Chol.[27]
[21]Ibid s 5(2)(b).
[22][2024] VSC 601.
[23][2023] VSC 613.
[24][2023] VSC 531.
[25][2023] VSC 49.
[26][2022] VSC 805.
[27][2022] VSC 341.
Sentencing disposition
Taking into account all matters argued, it is your counsel’s ultimate submission that a sentence of confinement in a youth justice centre is appropriate in all of the circumstances.
Submissions for the prosecution
Legislative framework
There is no challenge by the prosecution to the submissions of your counsel that, due to being the age of 17 at the time of the offending, you were a ‘child’ and ‘young offender’ as defined by the relevant legislation.[28]
[28]Children, Youth and Families Act 2005 (Vic) s 3(1); Sentencing Act 1991 (Vic) s 3(1).
The prosecution draws the Court’s attention to the powers it may exercise when sentencing a child with respect to an indictable offence, noting that this Court can impose any sentences which the Children’s Court may impose under the Children, Youth and Families Act.[29] However, should this Court make an order that a child be detained in a youth justice centre, this order must be made in accordance with certain divisions of the Sentencing Act.[30]
[29]Children, Youth and Families Act 2005 (Vic) s 586(1).
[30]Ibid s 521.
The prosecution makes clear that the crime of manslaughter sits outside the jurisdiction of the Children’s Court, and that you fall to be sentenced under the Sentencing Act.[31]
[31]Ibid s 516(1)(b).
Gravity of the offending and moral culpability
The prosecution submits that manslaughter is an inherently serious offence, evidenced by the applicable maximum penalty of 25 years’ imprisonment.[32] Manslaughter is a category 2 offence and a category A serious youth offence.[33]
[32]Crimes Act 1958 (Vic) s 5.
[33]Sentencing Act 1991 (Vic) s 3(1); Children, Youth and Families Act 2005 (Vic) s 3(1).
It is further submitted that manslaughter can occur in a vast array of circumstances, and the Court’s assessment of criminality must correspond accordingly.[34] It is the prosecution’s argument that the following matters are relevant to that assessment in this case:
[34]DPP v SJK [2002] VSCA 131 [64].
(a) your acquisition of the knife prior to the offending and plan to be in possession of it when collecting your items from LC;
(b) your inspection of the knife, of a large hunting variety, to ensure that it was readily available to you as you travelled in the lift to LC’s apartment; and
(c) the use of a dangerous weapon to cause Mr Bockhodt’s death.
Whilst the prosecution concedes that your culpability is somewhat reduced given your age and personal circumstances, it is contended that your culpability remains at a moderate level.
General sentencing principles
The prosecution submits that general deterrence is an important sentencing consideration in this matter, especially given the prevalence of knife crime amongst young people.[35] It is identified that just punishment and denunciation are also matters of significance.[36]
[35]Sentencing Act 1991 (Vic) s 5(1)(b).
[36]Ibid s 5(1)(a), (d).
As you have committed a category A youth offence, the prosecution reminds the Court that the need to protect the community, or any person, from your violent or wrongful acts, is a matter which must be considered.[37]
[37]Children, Youth and Families Act 2005 (Vic) s 362(g)(i).
With respect to specific deterrence, it is noted that you have a limited criminal history, and that this sentencing consideration will largely be met by the imposition of a custodial term.[38]
[38]Sentencing Act 1991 (Vic) s 5(1)(b).
Victim impact
The prosecution emphasises the impact of this offending on Mr Bockhodt’s family, some of whom have made victim impact statements to which I have already referred.[39]
[39]Ibid s 5(daa).
Plea of guilty and remorse
The prosecution challenges your counsel’s submission that your guilty plea can be categorised as early given that it was entered less than one month from the commencement of the trial.
The prosecution does, however, accept that the utilitarian value of your plea is significant in circumstances in which a key prosecution witness is now deceased, multiple witnesses were uncooperative, there were substantial pre‑trial issues, and finally, that a defence of self‑defence was open to you and arguable on the facts.[40]
[40]Ibid s 5(g).
It is the prosecution’s submission, however, that there is no evidence of true remorse on your part.[41] Reference is made to the report of Youth Justice Case Manager Amy Frangalas, dated 11 October 2024, and her opinion that your level of empathy is ‘superficial’, and that you do not regret your actions which were performed in self‑defence and were ‘necessary’ after you were threatened. It is further noted that Dr Anderson concludes that there is no underlying cognitive dysfunction that affects your capacity to understand your behaviour or to develop or express remorse. Both Ms Frangalas and Dr Anderson noted that you expressed anger with respect to being in a position in which you had to stab someone.
[41]Ibid.
As such, the prosecution contends that whilst you have accepted responsibility for causing Mr Bockhodt’s death, you significantly downplay your conduct in circumstances where the matter has not resolved on the basis of excessive self‑defence.
Given these matters, it is the prosecution’s ultimate position that your insight into your offending and your remorse are limited, which in turn impacts the assessment of your prospects of rehabilitation and the importance of specific deterrence and protection of the community.
Youth and prospects for rehabilitation
The prosecution accepts that, given your young age, rehabilitation is a primary sentencing consideration.[42] At 17, now 18, years of age, you are less blameworthy for your behaviour than an adult would be if they engaged in the same conduct. It is further noted by the prosecution that the importance of rehabilitation is heightened if the Court determines that your prospects are positive, a finding which the prosecution concedes is open in this case.
[42]R v Mills [1998] 4 VR 235, 241.
Despite these matters, the prosecution reinforces the impact of the seriousness of the offending on the weight to be attached to your young age. The Court’s attention is drawn to comments in Azzopardi v The Queen and DPP v SJK, which, to summarise, highlight the importance of youth and rehabilitation in cases involving a young offender, however, acknowledge that the significance of these matters can be tempered in cases involving serious offending where other sentencing principles carry serious weight.[43]
[43]Azzopardi v The Queen (2011) 35 VR 43, 57 [44]; DPP v SJK [2002] VSCA 131 [61], [65].
Ultimately, the prosecution accepts that your youth is relevant to the Court’s assessment of your culpability and prospects of rehabilitation, which it concedes are positive, however, these matters can give way to the serious nature of your offending which is a poignant matter in this case.
With respect to rehabilitation specifically, the prosecution refers to the conclusions of Dr Anderson, who identifies you as a moderate risk of reoffending. It is opined by Dr Anderson that your normalisation of and admission to using violence to meet your needs, glorification of violent and sexually violent attitudes, and prior engagement in intimate partner violence are key matters relevant to assessing your rehabilitative prospects.
Bugmy and Verdins
The prosecution concedes that the Bugmy principles have both specific and general application, and further concedes that limb one of Verdins is enlivened.[44] However, it is observed that there is some difficulty in disentangling the psychological evidence supporting these principles. Whilst the prosecution submits that it is open to the Court, for example, to give full weight to the applicability of Bugmy and limited weight to the Verdins principles, it is noted that the weight and extent of the significance attributed to these matters is ultimately a matter for the Court.
[44]Bugmy v The Queen (2013) 249 CLR 571, 594–5 [43]–[44]; R v Verdins & Ors (2007) 16 VR 269, 276 [32].
With respect to Verdins limbs five and six, the prosecution contends, as was submitted by your counsel, that they have only modest application in this case, and that Dr Anderson’s conclusions fail to demonstrate that there is a serious risk that imprisonment will have a significantly adverse effect on your mental health.
Appropriate disposition
The Crown has filed a table of comparable cases which illustrate the current sentencing practices with respect to manslaughter.[45] I have taken these into account.
[45]Sentencing Act 1991 (Vic) s 5(2)(b).
Given the nature and seriousness of your offending, the prosecution’s position is that confinement is the only appropriate disposition in this case. The prosecution is satisfied, however, that given your youth, prospects of rehabilitation, history, and the significant utilitarian value of your plea, it is open to the Court to find that exceptional circumstances are established, and to impose a sentence of detention in a youth justice centre.
Analysis and decision
Sentencing factors
Maximum penalty
As has been detailed above, the maximum penalty for manslaughter is 25 years’ imprisonment.
Manslaughter is a category 2 offence as defined by the Sentencing Act, and a category A youth offence per the Children, Youth and Families Act. Both parties accept that this Court is permitted to make a youth justice centre order with respect to this offending, despite manslaughter’s classification as a category A serious youth offence, as exceptional circumstances exist in this case. As such, any period of detention imposed can be served in a youth justice centre, and such a period is limited to four years.
Gravity of the offending
As has been observed, the offence of manslaughter involves the taking of human life, and thus is an inherently serious offence. It is further noted that manslaughter can be committed in a wide variety of ways, some of which might be regarded as more serious than others. In your case, I have taken into account the fact that, although you carried a knife to the apartment, your offending was not premeditated, you inflicted only one blow and not multiple blows, and the offending did not occur in company. In my opinion, you acted on the spur of the moment.
In all of the circumstances, I conclude that the gravity of your offence lies between the lower to middle range of this type of offending.
Level of culpability
As far as your level of culpability is concerned, I conclude that although you were armed with a knife when you went to the apartment, you did so in circumstances where you were responding to a number of communications, some of which were threatening, during the period leading up to your offending. I am satisfied that you took the knife with you as a form of protection, albeit that you handled it in the lift on the way to the apartment, but that you did not intend to use it unless you had to in the circumstances.
In assessing your level of culpability, I have also taken into account the impact of your difficult upbringing, and agree that the Bugmy principles apply to you to some extent. Furthermore, in my opinion, the first limb of Verdins is also enlivened, and reduces your level of culpability in a modest way.
Factors in mitigation
I have considered your guilty plea to the offence, and that you regret the actions which you took when you stabbed your victim. I acknowledge the circumstances leading up to your guilty plea, which was entered following a sentence indication. I do not regard your plea as a full example of an early guilty plea, however, I do take into account its utilitarian value. As has been noted by counsel, your guilty plea occurred in circumstances in which you had an arguable defence to the charge, and there were triable issues given the challenges confronting the prosecution should the matter have proceeded to trial.
As to your remorse, and any impact this has on specific deterrence and community protection, there is, in my opinion, a lack of clear remorse. However, I acknowledge that the development of remorse in your case appears to be a work in progress, and in its early stages. I accept that, currently, your insight into your offending is somewhat limited and there is some distance to go before you gain full insight, and acquire clear indications of remorse. Nevertheless, you have displayed positive engagement with Youth Justice, and engaged in open and meaningful discussion with respect to your offending, childhood trauma, substance use, negative peer associations, and disgruntled thinking patterns. Your willingness to discuss these matters is, in the opinion of Youth Justice, indicative of good prospects of successful intervention and rehabilitation.
Given these matters, I accept that your rehabilitative prospects appear positive and, therefore, I am of the view that the sentence imposed in this matter does not require emphasis on specific deterrence or community protection. I note that, when assessing your rehabilitative prospects, I have considered your lack of prior convictions, and that you have no established pattern of offending.
Following the parties’ submissions, the Court requested and received a pre‑sentence report dated 11 October 2024 which is authored by Youth Justice Case Worker Amy Frangalas. The report discusses your suitability for a youth justice centre order.
Ms Frangalas notes that you have had no historical involvement with Youth Justice on any community‑based dispositions within the Children’s Court jurisdiction, and that the current matter is your first encounter with the justice system. Further, it is stated that, since being remanded on 4 June 2023, your engagement with Youth Justice has been positive.
Ms Frangalas assesses your suitability for detention in a youth justice centre by making reference to the criteria set out in section 32(1) of the Sentencing Act. Consideration is had to whether you have reasonable prospects of rehabilitation, and are particularly impressionable, immature, or likely to be subject to undesirable influences in an adult prison. In short, Ms Frangalas deems you suitable for detention in a youth justice centre, and concludes that a youth justice centre is more appropriate than an adult custody facility given that your young age and level of impressionability would leave you vulnerable in such an environment.
The Court notes that your counsel endorses this approach, which is not challenged by the prosecution. Balancing all of the relevant factors as discussed in the course of these reasons, I also agree with this approach. I am satisfied that you have met the appropriate criteria, and that exceptional circumstances have been met, and as such, you will be sentenced to a youth justice order.
The question then becomes one of what the length of this order should be.
As has been observed, the maximum possible sentence for a youth justice order in your case is four years. You were remanded in custody on 4 June 2023 and, accordingly, have been in custody for more than 18 months. Your progress during the course of this time appears to have been positive, albeit your rehabilitation is not yet complete. I must balance these mitigating factors along with the seriousness of the crime you have committed, which I have done.
In all of the circumstances, I do not consider that the maximum possible sentence by way of a youth justice order is appropriate in your case. Accordingly, I will make an order that you be detained by way of a youth justice order for a period of 36 months.
But for your plea of guilty, I declare for the purposes of section 6AAA of the Sentencing Act that I would have imposed a period of detention of 48 months or 4 years.
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