R v L M A

[2005] VSC 152

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1519 of 2004

THE QUEEN

v

LMA

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	5-8, 11-13, 14, 21 April 2005
DATE OF SENTENCE:	11 May 2005
CASE MAY BE CITED AS:	R v LMA
MEDIUM NEUTRAL CITATION:	[2005] VSC 152

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Criminal Law – Sentencing – Manslaughter by stabbing of friend by 16 year old – Unlawful and dangerous act – Several mitigating circumstances – 5 years and 6 months imprisonment – Non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gamble	Office of Public Prosecutions
For the Accused	Mr P. Dunn Q.C.	Galbally & O’Bryan

HIS HONOUR:

1. You have been found guilty of manslaughter by a jury that found you not guilty of the murder on 25 April 2004 of Simon Eades at Oak Park.  Simon Eades was a friend of yours.  So too were three others who were in your home at Oak Park on that day around 2.30 in the morning.  Simon, aged 20, was the oldest of the five.  You, then aged 16, were the youngest.  Two of the five were female.  One was your then girlfriend.  The other was your girlfriend’s cousin.  Until about fifteen minutes or so before you stabbed Simon Eades, the five of you had been having a good time.  Vodka and other forms of alcohol had been drunk.  There was dancing to loud music.  The trouble started when the two females had an argument over chewing gum.  After that was resolved there was a fuss when your girlfriend spoke of her being pregnant.  You were annoyed with her over that.  You told your girlfriend to leave.  Your girlfriend then annoyed you further by telephoning a male friend to come and collect her.  That led to your pushing her. 

1. Simon came to her aid.  He restrained you.  You resented his doing so.  You showed your resentment by punching Simon.  When your girlfriend went upstairs to collect her bag, you followed her into your bedroom.  So did the other three of your friends.  In the bedroom, you again pushed your girlfriend.  Again, Simon went to restrain you.  You punched him again.  Then you went one very stupid step further.  You had chosen, despite your mother’s pleas not to do so, to keep nailed to your bedroom wall a set of dangerous weapons.  The collection included several knives.  When you moved over to the knives, your friends moved away.  Brandishing a knife, you confronted Simon at the top of the stairs.  You then used the knife in a way that caused two stab wounds to Simon.  The first was to the chest, the second was to the neck.  The second caused only a minor injury.  Regrettably, the first entered the heart and caused a quick death.

1. You then took a number of steps which aggravated the seriousness of the killing.  You had Simon moved out of your house to some shops which were more than 200 metres from your house.  There you put pressure on your friends to lie to the police, to say that an unknown person had stabbed Simon.  You then lied to the police with a story about an unknown assailant.

1. This was a serious manslaughter by unlawful and dangerous act.  I accept that there was nothing planned about the stabbing.  I can understand why the jury could have had a reasonable doubt that, at the time of the stabbing, you had the intention to cause really serious injury.  It was very much more a spontaneous act in the context of an increasingly emotionally charged situation.  Your lack of maturity made it the more difficult to cope with that situation.  Nevertheless, you made a series of particularly stupid choices for which you must now bear the consequences.  You chose to keep weapons on hand in your bedroom.  You chose on the night to drink too much.  You chose to stab Simon not just once, but twice.  You then chose to try to distance yourself from responsibility.

1. I have read the victim impact statements of Simon’s mother, father and older brother Aaron.  The statements have obviously been prepared after much anguish by each of them.  Simon was clearly an impressive young man, and came from an impressive family given that over 700 people attended his funeral.  That only makes it the more difficult for those close to him to bear the pain of the loss.  Sentencing principles warrant my taking account of that pain, although those principles require the primary focus to be on the circumstances of the offence and of the offender.

1. I turn to you and your background.  You are now 17 years of age, coming up soon to 18.  You were born in June 1987.  During the plea I heard testimony from both of your parents.  They separated when you were aged six.  Over the next ten years, there were times when the adverse effects of that separation showed.  It was in part reflected in your moving from home to home and from school to school.  Further, for a time, your mother’s male partner gave the wrong kind of example by disciplining you with violence.  Both your mother and your father and their families appear now to be strongly supportive of you.

1. This is not the first time that your behaviour has brought you before the courts.  The matters that led to two appearances before the Children’s Court in 2003 appear not to be particularly significant.  But they are an indication of a disposition to have less than due respect for the law, including as to drinking and drug-taking.  That lack of respect is also, to some degree, signalled by your choosing to collect, and to display in your bedroom, not stamps or coins, but weapons.

1. There are several mitigating factors operating in your favour.  Your age is the most significant of those factors.  Your remorse is another.  I accept that there is a substantial element of remorse, despite the indications in the hours after the stabbing that your interest was primarily in avoiding responsibility.  I have also noted your readiness to plead guilty to manslaughter from a time before the committal hearing.

1. The prospects for your rehabilitation are very good.  I heard some impressive testimony from two youth workers and a chaplain from the Melbourne Juvenile Justice Centre as to both your good behaviour there, and your willingness to participate in education and other programs.  You have used the time to pass Year 10.  You are now working on Year 11.

1. The indications are clear that you and the community would be advantaged by your being held in a youth training centre rather than in an adult prison. The Adult Parole Board has power under section 244 of the Children and Young PersonsAct to direct a transfer. Before scheduling the sentencing for today, I arranged for appropriate documents to be provided to the Board to enable it to be in a position to make a decision today as to the exercise of that power, after this sentence is handed down.

1. I have signed the disposal and retention orders.  There were good reasons and no objection to my doing so.  In fixing the term of the sentence and non-parole period I have had considerable regard both to the statements of principle and the manner of the application of those principles in the case of PP less than two years ago.  I impose a sentence of imprisonment of  5 years and 6 months.  I fix a non-parole period of 3  years.  I declare the period of pre-sentence detention to be 382 days to today.  I direct that that be entered in the court records.