R v Lovett
[2023] VSC 50
•15 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0090
| Between: | |
| THE KING | |
| -and- | |
| TREVOR ALLEN RICHARD LOVETT | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20 December 2022 |
DATE OF SENTENCE: | 15 February 2023 |
CASE MAY BE CITED AS: | R v Lovett |
MEDIUM NEUTRAL CITATION: | [2023] VSC 50 |
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CRIMINAL LAW — Sentence — Manslaughter by criminal negligence — Deceased stabbed and gravely injured during altercation with two others at accused’s home — Accused, 47, volunteered to take deceased to hospital by car but ultimately failed to do so — Instead, fearing unjust blame for stabbing, accused drove elsewhere — Deceased died in car within undetermined period after accused set off — After expiry of deceased, accused slept at friend’s premises for several hours, leaving body in car — Accused later attempted suicide by overdose of heroin, with body still in back seat of car — Accused originally charged with murder on basis he stabbed deceased — Rival suspect for stabbing — Prosecution unable to establish who stabbed deceased — No medical evidence deceased would have survived if treated promptly — Three years after initial charge, accused nevertheless offered, and Director accepted, plea of guilty to manslaughter by negligent failure to take deceased to hospital — No lawful conviction without plea of guilty — Admissions — Remorse — Delay — Extensive history of offending, drug abuse and poor mental health — Appalling deprivation in early life — Reasonable prospects of rehabilitation — Hardship of prison conditions during pandemic — Current sentencing practices — Unusual case — Sentence of five years’ imprisonment with non-parole period of three-and-a-half years — But for plea of guilty, sentence of eight years’ imprisonment with non-parole period of six years — Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Lewis | Abbey Hogan, Solicitor for Public Prosecutions |
| For Mr Lovett | Mr J Gullaci SC with Mr W Blake | Victoria Legal Aid |
HIS HONOUR:
Overview
In the early hours of a winter’s morning in Darley, at the home of Trevor Lovett, a fracas turned violent. In the course of the scuffle, Stephen Watts pinned brothers Lochlan and Hayden Johns against a bedroom wall. While it is not clear who did it, or how it occurred, ultimately, Mr Watts ended up being stabbed in the back with a knife. Shortly afterwards, he collapsed to the floor, obviously seriously injured.
Mr Lovett waved away the suggestion that an ambulance be called, and volunteered to drive Mr Watts to hospital instead. He and the Johns brothers put Mr Watts in the back seat of his own car. Despite an offer by Hayden Johns to accompany him, Mr Lovett rejected this too, and he set off with no other passengers.
Culpably, however, he did not go to the hospital. Nor did he think better of his original choice and ring an ambulance or otherwise seek professional medical attention. Instead, in a panic, fearing he would be unjustly blamed for the stabbing, he drove elsewhere. Tragically, Mr Watts died at some undetermined point not long into this headless, meandering journey, but, as his plea of guilty admits, not so soon as to excuse Mr Lovett for his negligent inaction.
Mr Lovett then drove to a friend’s home, which was also in the Bacchus Marsh suburb of Darley. He parked out the front, leaving Mr Watts’ body in the car. He went inside, and fell asleep. Some hours later, he awoke, and returned to his own home. While there, with others, he sought to clean up the scene.
In the afternoon, Mr Lovett drove to a carpark at Brimbank Plaza in Deer Park. Overcome with guilt, he tried to kill himself by an overdose of heroin. Before doing so, during a phone call, he said his goodbyes to the mother of six of his children. He then passed out, slumped at the steering wheel, with Mr Watts’ lifeless body still in the back seat.
Passing shoppers made this dreadful discovery, and alerted the authorities. Mr Lovett was revived and taken to hospital. But there was no reviving Mr Watts. It was far too late for that. He was pronounced dead at this grisly scene.
Mr Lovett pleads guilty to manslaughter by criminal negligence. By his plea, he accepts that he undertook a duty of care to take the gravely injured Mr Watts to hospital, but that his criminally negligent failure to do so was a cause of his death.
Initially, however, it was alleged that Mr Lovett stabbed Mr Watts and thereby committed murder or, in the alternative, manslaughter by an unlawful and dangerous act. Despite Mr Lovett’s denial of the stabbing, that very case was persisted in by the prosecution for over three years. It was only when Mr Lovett offered to plead guilty to manslaughter — not on the basis that he stabbed Mr Watts and thereby caused his death, but because of his negligent failure to get his gravely injured friend to hospital — that the prosecution abandoned its previous case and took up the plea offer.
Mr Lovett’s guilty plea was made, and accepted, despite the fact that there was no medical evidence that, had he taken Mr Watts to hospital promptly, he would have (or even might have) survived. There is still no such evidence. It is therefore Mr Lovett’s plea of guilty, and only his plea, which fills that yawning chasm in the prosecution’s new — and fundamentally different — case of manslaughter.
That said, it is still a serious offence. While the medical evidence is that Mr Watts died as a result of the stabbing, it is accepted that, but for Mr Lovett’s negligent inaction, his dying passenger would have had avoided an untimely death. Mr Watts was only 41. Naturally, his loved ones are devastated. While Mr Lovett’s behaviour was motivated by an understandable concern that the finger of suspicion would be mistakenly pointed at him for the stabbing, he still failed — miserably, morally, and criminally — in the duty he had undertaken to care for Mr Watts, a man who, after all, was also his friend.
On the other hand, this instance of manslaughter is not nearly as grave as, say, a manslaughter by a deliberate stabbing. Mr Lovett’s horrible experiences early in life help explain his panicked inaction and reduce his moral culpability for his offending. Further, his plea of guilty is a powerful mitigating factor, especially given that there could be no lawful conviction without it. He feels deep remorse for his neglect and its consequences. For most of the last three-and-a-half years, he has been held in the restrictive prison conditions occasioned by the pandemic, and has had a murder charge hanging over his head. While he has an extensive criminal history and has abused drugs for many years, his prospects of rehabilitation, at the age of 50, are at least reasonable.
These and other matters, including the various sentencing purposes, must be assessed and balanced in determining the appropriate sentence. I shall announce the sentence at which I have arrived at the conclusion of these reasons.
Summary of offending
Agreed summary
The more comprehensive summary of events I am about to give is taken mostly from the prosecution opening read by Mr Lewis, who appeared for the Director of Public Prosecutions. Mr Gullaci SC, who appeared with Mr Blake for Mr Lovett, did not dispute this summary, but added some other matters. I shall incorporate this and other information from the depositions, where appropriate.
Mr Watts
Mr Watts grew up with his mother Valerie and a younger brother Luke. His father, also named Stephen, did not have anything to do with the family.
Mr Watts was raised in the inner northern suburbs of Melbourne. He went to Abbotsford Primary School, Collingwood College and eventually Princess Hill Secondary School, leaving after completing Year 10 or 11.
Prior to his death, Mr Watts had been employed for about a year as a storeman at the Good Guys store in Melton. He was described by a co-worker as “a massive personality” and a popular member of staff who would help anybody.
In 2008, Mr Watts formed a relationship with Amanda Wilson. The couple began living together in Darley in 2015, where they remained up until his death. Together, they had a child (now aged eight), and the care of two older children from Ms Wilson’s previous relationship. Ms Wilson regarded Mr Watts as fun and patient, and as a generous gentleman who could be a big kid at times.
Mr Lovett
Mr Lovett lived in Darley with his mother Susan Bacon. He is of Aboriginal heritage on his father’s side.
Mr Lovett has six children (aged 30 to fourteen) with Linda McCarthy. The couple separated permanently in 2010. Mr Lovett has two more children from two other relationships. One of those children (aged seven) is in foster care.
Background
I turn now to the offending and the events surrounding it.
At 11:17 a.m. on the morning of 15 August 2019, Mr Lovett posted a Facebook message to friends saying that he was going to get a bottle of Chivas Regal to keep warm. Soon after midday, he duly made that purchase at a local liquor store before returning to his home in Jonathon Drive.
During the course of the evening, Sozos Paraskevas, the Johns brothers, Tanya Haley and Whitney Tallent all visited Mr Lovett at his home. Mr Paraskevas left after having an argument with Lochlan Johns and Mr Lovett. All had been drinking or taking drugs, or both.
Meanwhile, at about 7:00 p.m., Mr Watts left work at the Good Guys in Melton. Before going home, he visited Mr Lovett’s house briefly. While there, he discussed the sale of a mobile phone with Ms Haley.
After Mr Watts arrived at his own home, Ms Wilson left for work. She later phoned him and asked if he could get things ready for their daughter to go to school the next day. At about 11:45 p.m., Ms Wilson returned home from work. As Mr Watts was not there, she sent him a text message saying that she was home in bed. He replied, and a short time later walked into the bedroom. He told Ms Wilson that he was going out for a little while, but without saying where he was going. This was the last time that Ms Wilson saw or heard from Mr Watts.
After leaving home in the early hours of 16 August, Mr Watts drove his Holden Commodore sedan to Mr Lovett’s house and joined the group there. Ms Haley paid Mr Watts $150 and received the mobile phone. She left soon afterwards. Madison Humphreys and Ms Tallent also left together. Mr Watts, Mr Lovett and the Johns brothers remained.
Mr Watts is stabbed
Later the same morning, but still in the early hours, Lochlan Johns and Mr Watts went with Mr Lovett to his bedroom, which was at the rear of the premises. Mr Lovett retrieved some scales and a small amount of cannabis. Hayden Johns also came into the room.
A verbal altercation erupted between Mr Watts and Lochlan Johns. Hayden Johns intervened, and the verbal stoush quickly developed into a physical altercation. Mr Watts pinned Lochlan Johns with his right hand up against a wall of the room, between a cabinet and the door. He also grabbed Hayden Johns around the neck and pinned him to the same wall, but lower down, to the point where he was against the cabinet. Mr Lovett yelled at the three men, telling them to break up the fight.
It was during the course of this altercation that Mr Watts was stabbed by one of those present. It is accepted by the Director that it cannot be proved beyond reasonable doubt who was responsible for the stabbing. Importantly, it is no longer alleged that Mr Lovett was the culprit.
Events after the stabbing
All four men then left the room. Lochlan Johns hugged Mr Watts in an apology for the fight. After removing his hands, he saw that Mr Watts was bleeding from the back. Mr Watts then collapsed in the hallway. The others then helped him to the lounge room.
Mr Lovett said that they had to get Mr Watts to the hospital. Lochlan Johns said that he was going to call an ambulance. Mr Lovett responded, “Nah, fuck it, don’t worry about it.” He said that they should put Mr Watts into his own car (the Commodore) and take him to hospital.
The three of them then carried Mr Watts out to his Commodore, placing him across the back seat. They were assisted by Mr Lovett’s neighbour.
Hayden Johns told Mr Lovett a number of times that he would call an ambulance. Mr Lovett said not to do so as he would take Mr Watts straight to the hospital. Hayden Johns also offered to go to the hospital with him, but Mr Lovett said he would go by himself. Shortly thereafter, the Johns brothers left the premises.
At some point, Mr Lovett returned to the house and grabbed a knife and placed it in the front seat of Mr Watts’ car. He then drove off.
At 4:16 a.m., Michelle Agius, a close friend of Mr Lovett, sent a text message to him saying, “You awake??? and got a mix please.” Mr Lovett drove to Ms Agius’s premises, a short distance from his home. He parked out the front, leaving Mr Watts’ body in the rear of the car. He was greeted at the door by Ms Agius, who described him as babbling and saying “I’m fucked” as he came into the house. Ms Agius told him to go and wait in her room while she made him a coffee. By the time she returned, he had fallen asleep.
After 10:00 a.m., Mr Lovett was woken by Ms Agius. She asked whose car was in the driveway. She described Mr Lovett as freaking out and saying that someone was dead and that nobody was going to believe that he didn’t do it. Mr Lovett grabbed Ms Agius’s mobile phone and started making a number of calls. He then left, driving to an unknown location, where he parked Mr Watts’ car.
At about midday, Mr Lovett returned to his house. He was met there by Ms Agius, Ms Haley and a friend known as Stewie. Ms Agius and Ms Haley assisted with cleaning up the scene. Ms Agius and Mr Lovett had a conversation in the kitchen during which he said, “Fuck it, I’m gonna take the fall for this.” She replied, “If this is true, you are not going to take the rap for something you have not done.” He said, “At least you know the truth.”
At 12:05 p.m., Mr Lovett phoned Mr Paraskevas and said, “I’ve fucked up, Suds, I’ve fucked up; I’ve fucked up bad.” Upon hearing this, Mr Paraskevas went to Mr Lovett’s house. He saw him come out of his bedroom holding a knife in his right hand, apparently drug affected.
Shortly afterwards, Mr Lovett returned to the Commodore which, at this stage, was still parked at an unknown location with Mr Watts in it.
After leaving Mr Lovett’s premises, at 1:32 p.m., Ms Haley received a phone call from him during which he said that Mr Watts was dead and had been stabbed. They organised to meet at a 7-11 store in Rockbank (which is about 25 kilometres from Darley). They met in a rear carpark. Mr Lovett sat in Ms Haley’s vehicle and told her that Mr Watts and the Johns brothers were in his room arguing, and that someone had been stabbed. He also said that he was “pilled”, and that he was not going to go down for it. When asked, he said that the body was in the car. Mr Lovett asked Ms Haley to return to his house to collect some clothes for him. They discussed what to do with the body. When asked why he did not call an ambulance, Mr Lovett said, “He was gone.” They then parted ways.
Meanwhile, Ms Wilson was unable to contact Mr Watts throughout the morning, which caused her concern. After 2:00 p.m., she went to the police station in Bacchus Marsh to inquire as to his whereabouts. At this stage, there were no recorded incidents involving Mr Watts and Victoria Police.
Back to Mr Lovett’s actions. In the afternoon, he drove to an unknown location before going to the Brimbank Plaza, in Deer Park, with Mr Watts still in the rear of the car. An exchange of text messages reveals that Mr Lovett and Ms Haley had arranged to meet at Hungry Jack’s at the Brimbank Plaza. At 4:37 p.m., he parked in an outdoor carpark of the shopping centre.
At 4:53 p.m., Mr Lovett spoke by phone to his ex-partner, Linda McCarthy. During the call, he told her that he had a dead mate’s body. He was sobbing and said that he didn’t know what to do. Ms McCarthy asked him who did it, and he said that it was Locky. Ms McCarthy told him to call the police. Their call became heated, however, and ended with Mr Lovett thanking Ms McCarthy for being the mother of his children. He asked her to tell the children that he loved them, and said that this was it for him.
Mr Lovett took heroin, causing him to overdose and pass out while in the driver’s seat of the car. Mr Watts’ body was still in the rear seat.
The two men were discovered by passers-by, who alerted site security. Security officer Mukul Manjal attended. He could see Mr Watts in the rear seat and Mr Lovett slumped in the driver’s seat. He called emergency services.
Ambulance and fire brigade officers attended at 5:38 p.m. Mr Lovett was unconscious, with a used syringe in his hand. He was removed from the car and ultimately revived with Narcan by 6:06 p.m. At 6:22 p.m., he was taken by ambulance to the Emergency Department of the Sunshine Hospital.
Mr Watts was partially covered by a blanket or quilt. There was a large quantity of blood on the rear seat. He was pronounced dead at the scene. A preliminary examination was conducted in situ by forensic pathologist Dr Melanie Archer, who noticed an incised wound to the anterior wall of Mr Watts’ chest.
On the front passenger seat of the car, police found a Columbia brand knife with what appeared to be blood staining on it.
Arrest and interview of Mr Lovett
Mr Lovett was admitted to Sunshine Hospital. He remained there overnight, before being discharged in the early hours of 17 August 2019. He was then arrested and taken to the Sunshine Police Station.
Later that day and into the next morning, Mr Lovett was formally interviewed by police. Among other things, he told investigators the following.
On the night of the stabbing, he was having a drink or a smoke with friends. Mr Watts, Ms Tallent, Ms Haley and the Johns brothers were there. His mother was away at his brother’s house. At some point, Ms Haley left with a phone she had bought from Mr Watts.
While in the bedroom, Mr Watts got into a verbal altercation with the Johns brothers, which turned physical, with him pinning the two of them against the wall. Mr Lovett intervened, grabbing them and asking, “What are you doing?”
Subsequently, Mr Watts collapsed in the hallway. There was blood coming out of his back. He said to the Johns brothers, “What have [you] done? What happened?” He believed it was either Lochlan or Hayden Johns who was responsible for the stabbing.
He went into a panic. He said, “We have to get him to hospital.” The three of them loaded Mr Watts into the back seat of his car. He told the Johns brothers, “You stay here and look after the house … and I’ll get him to hospital.” He said he did not want them coming and “fighting at the hospital”.
He then drove off and “started heading … towards the hospital”. Earlier in the interview, he said he “went straight … to Sunshine Hospital”. He did not hear Mr Watts making a noise or murmuring. He took with him the knife he believed was used to stab Mr Watts — in order to show the doctors or police. He also took Mr Watts’ phones and wallet to hold onto for him.
Initially, he said that his next memory was coming to, with the police and ambulance officers all around him. He did not recall driving to Brimbank Plaza.
Later in the interview, he accepted that he had made a number of phone calls throughout the day but could not remember them all. He had taken Xanax, ice “and all that”.
He recalled speaking to Ms McCarthy, although he was not sure where he was at the time. He realised Mr Watts was in the back seat. He was too scared to go the police or the hospital because of his prior criminal history, so he spoke to Ms McCarthy about it.
He could not explain where he was between the time of the stabbing and leaving the Bacchus Marsh area at about 2:00 p.m. He could not remember being in Rockbank, and could not account for what he was doing there.
He acknowledged that there were hospitals in Bacchus Marsh and Melton, which are closer to Darley than Sunshine Hospital.
Mr Lovett repeatedly and emphatically denied stabbing Mr Watts. For example, he said this:
Look, … I’ll tell [you] right now, the only thing guilty — I’d done bad was not taking him to the hospital, you know, but driving around with him in the back seat. I didn’t bloody kill him, all right. … I didn’t kill the bloke. … He’s me mate at the end of the day, you know. So [you] are trying to … put it on me like I killed him. I didn’t kill him, honest to God. I wouldn’t, you know. Far out. Just because the only guilty thing I done was [drive] with him in the back seat while he was dead. I didn’t kill him. Far out, mate. … You know, look, honest to God, I didn’t stab the bloke. I did not kill him.
By consent, Mr Lovett provided a DNA sample to police and participated in a forensic procedure.
Post-mortem examination
The day after the discovery of Mr Watts’ body, Dr Archer conducted a post-mortem examination at the Victorian Institute of Forensic Medicine.
Dr Archer observed a large laceration to his upper left shoulder area and a penetrating injury into the chest on the left side of his back, which caused internal bleeding. She opined that the cause of death was “stab injuries to the chest”. The degree of force to make the wound was thought to be high.
In her report, Dr Archer said that the main mechanism of death was likely to have been blood loss, with potential combination by a left pneumothorax, which induces respiratory insufficiency.
There was, however, no evidence from Dr Archer, or any other expert, as to whether Mr Watts would have, or even could have, survived if treated by a medical professional promptly after the stabbing. Dr Archer’s report is dated 4 December 2019. Presumably, she was not asked this question back then. Nor does it appear she has been asked since, as there is no further report addressing the issue.
Call charge records
It was said in the opening that, based on analysis of Mr Lovett’s mobile phone service, there is no evidence that he went directly to the Sunshine Hospital “as he maintained during his police interview”.
As we have just seen, however, in his interview, Mr Lovett appeared ultimately to accept that he did not drive to any hospital at all. It was not put on the plea that he did in fact drive Mr Watts to the Sunshine Hospital or any other hospital.
I should add that Mr Lewis advised that the Sunshine Hospital is located about 45 kilometres — or a 36-minute drive — from Darley. He also advised that the Bacchus Marsh Hospital was operating at the time and was only a five-minute drive from Mr Lovett’s home.
Victim impact statement
I turn now to the victim impact statement read to the Court by Ms Wilson.
Ms Wilson described the aching impact of Mr Watts’ death on her and her children. Their daughter has now taken to sleeping with her. As Ms Wilson said, Mr Watts will never see his daughter grow up, explore the world, or fall in love, or get to take her for driving lessons. As a result of Mr Watts’ death, Ms Wilson’s son was plagued with anxiety and depression during Year 12 and beyond, and her older daughter’s recovery from a brain aneurysm was made all the more burdensome. All of the children, and Ms Wilson, have been to see psychologists in an attempt to make sense of their world without Mr Watts. In addition to her grief and loss, Ms Wilson has found it difficult to make new connections or allow new people into the family’s lives.
Ms Wilson also said this:
Stephen is still greatly missed, and he was loved very much. He didn’t deserve death in the way he got it.
And to Trevor, may I say that I hate [the part] you played in Stephen’s death. I hate that it had to be what it is. I don’t hate you — because that would change me. And you don’t get to have that power.
I hope you find a path … you can follow with pride, to be a better person for yourself, and for those who love you. I hope you live a better life than what you have now, and that you have known. Take the help that is freely given.
And his death, Stephen’s death, and the way in which he passed, is a shadow that will follow us all.
These are profoundly moving, insightful and balanced thoughts.
In so far as it is permissible to do so, I have had regard to Ms Wilson’s victim impact statement in considering sentence.
I wish to add this. I know that there is nothing this Court can say or do to lessen the grief suffered by Mr Watts’ loved ones. The sentence is not a reflection of the worth of his life. It cannot be. Rather, it simply reflects the many factors I am required by law to take into account and balance, only one of which is the impact on victims.
Nature and gravity of offence
I turn now to the nature and gravity of manslaughter generally and this offence in particular, including Mr Lovett’s level of culpability.
Manslaughter in this State is (mostly) a common law offence.[1] At the relevant time, the maximum penalty for manslaughter was set by statute at 20 years’ imprisonment.[2]
[1]The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.
[2]See s 5 of the Crimes Act 1958 (Vic) (see version 291). For offences committed on or after 1 July 2020, the maximum penalty is 25 years’ imprisonment (see s 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic)).
While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely. Of the two categories of the offence remaining in Victoria,[3] manslaughter by unlawful and dangerous act is usually regarded as more serious than manslaughter by criminal negligence. But there is no inflexible rule. An offence falling within one category may be more or less serious than one falling within the other. Each case must turn upon its own particular facts.[4]
[3]Voluntary manslaughter no longer exists in Victoria as a result of the abolition of provocation as a defence to murder (see s 3B of the Crimes Act 1958 (Vic)). In Wilson v The Queen (1992) 174 CLR 313, the High Court held that battery manslaughter is no longer part of the common law.
[4]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] (per Weinberg JA; Williams AJA agreeing at 92[75]).
The form of manslaughter relied on here is manslaughter by criminal negligence — and by omission, rather than commission. In particular, knowing that Mr Watts had been stabbed and having volunteered to drive him to hospital, Mr Lovett breached the very duty of care he undertook to fulfil by failing to take him to hospital or attempt to have him receive some other form of professional medical attention.
Mr Lovett’s offence had some serious features, including the following. First, every offence of manslaughter has a grave component, by definition, in that the life of another human being has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.
Secondly, here, the life of a beloved father, partner, and one who was part of a wider family and circle of friends, aged only 41, has been taken as a result of a negligent failure to secure medical treatment after he was gravely injured. Inevitably, and as the victim impact statement shows, Mr Watts’ family are devastated at their loss.
Thirdly, as I have explained, by his plea of guilty, Mr Lovett accepts that, but for his negligent inaction, Mr Watts’ life would have been saved. By volunteering to drive him to hospital, Mr Lovett assumed a duty to care to do his best to secure medical assistance for his friend. He failed miserably in that regard, for at no point did he take Mr Watts to hospital, despite its being obvious that he was gravely injured. Further, he made no attempt to ring an ambulance against a background of another offering to do so or, alternatively, to travel with him. Nor did he seek any other form of professional medical assistance.
Finally, Mr Lovett’s post-offence conduct did him no credit. After Mr Watts had died, Mr Lovett drove around aimlessly. He then went to Ms Agius’s place, where he slept for several hours. Later, he returned to his own place and attempted to clean up the scene of the stabbing. Thereafter, he dithered for another few hours, and ended up in a carpark in Brimbank Plaza with Mr Watts’ body still in the back seat. At no time after Mr Watts had died did Mr Lovett alert the authorities.
The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following. First, the period of Mr Lovett’s offending was relatively brief. The relevant criminality occurred between his setting off from home on his diverted path and Mr Watts’ death. It is accepted that Mr Watts died at some point before Mr Lovett went to Ms Agius’s place soon after 4:00 a.m. It is not known, however, what time he left home on his headless journey, other than to say it was in the early hours of the morning. Nor is it known how long before he went to Ms Agius’s place that Mr Watts died. Mr Lewis conceded, fairly, that the evidence does not disclose how long after Mr Lovett left his home that Mr Watts in fact died. He accepted that “a reasonable descriptor” would be that it cannot be excluded that it occurred shortly afterwards.
Thus, this case is unlike some other instances of manslaughter by negligent omission, where the duration of the accused’s inaction in the face of an obvious need to get the victim medical treatment is measured in days.[5] Here, the relevant period of Mr Lovett’s negligence can only have been an hour or so at most — and may well have been measured in minutes. That said, as Mr Lewis submitted, the guilty plea necessarily implies that there was time enough to get him to a place where he could receive professional and effective medical attention.
[5]See, e.g., Naddaf v The Queen [2020] VSCA 41.
Secondly, this offence is different from some other instances of negligent manslaughter, where the accused is also responsible for the injury that gives rise to the necessity for medical treatment. For, here, Mr Lovett did not stab Mr Watts and cause the need for him to attend hospital in the first place.
Finally, while it cannot excuse his inaction to the point of providing a defence, I accept that Mr Lovett’s fear of an unjust accusation motivated his decision to avoid taking Mr Watts to hospital. As will be seen, Mr Lovett’s appalling early life and his criminal history help explain that decision. As it happens, his fear was realised, for he was accused of, and charged with, the stabbing in any event. And that position was maintained until only recently, despite strong evidence pointing to another person being the culprit. Thus, his fear and panic, coupled with his clouded judgment resulting from his being heavily drug-affected, reduce Mr Lovett’s moral culpability.
Overall, while it is still serious, Mr Lovett’s offence of manslaughter is both unusual and somewhat less serious than many other instances of the offence encountered in practice, including those based on a criminally negligent omission.
Personal history and psychological assessment
Sources of information
I turn now to Mr Lovett’s personal and psychological history in more detail. Much of the following information was conveyed by Mr Gullaci in his written and oral submissions on the plea and in the helpful report of psychologist Lisa Jackson. Ms Jackson assessed Mr Lovett via video-link on 9, 10, and 21 November 2022.
Family
Up until the age of four or five, Mr Lovett grew up with his parents in the Preston area. He has a younger brother. When his parents separated, he and his brother, along with their mother, moved in with their maternal grandmother in the Flemington area.
His father had a history of amphetamine abuse, mental health problems, and violence. Troublingly, Mr Lovett was exposed to significant violence in the home. At fifteen, he had some brief contact with his father. Mr Lovett’s mother, who was struggling to manage his behavioural problems, asked his father to “pull him into line”. His father did not remain involved in his children’s lives, and his relationship with Mr Lovett never developed in any positive way.
Mr Lovett said he was close to his mother when he was younger, but this went “downhill” by his early teens. He said he had some resentment towards her, because she “focused” on his brother, who was dark skinned and victim to racial discrimination both at school and in the community.
When Mr Lovett was eight, his mother was severely injured in a car accident. She suffered head and facial injuries. During her three-month hospitalisation, he and his brother were placed in the care of a woman who was a family friend. It was a difficult time. Mr Lovett missed his mother. He and his brother were treated badly by the woman’s eldest son, who routinely bashed them. When his mother was discharged from hospital, they moved in with his grandmother in Preston, where they remained up until her death, before relocating back to Flemington.
Mr Lovett observed some personality changes in his mother after the accident. She started drinking heavily and formed relationships with abusive males. She was often absent from the home, and there was little money for food or clothes. Mr Lovett was both witness to and a victim of violence perpetrated by his mother’s partners. He was particularly targeted by one of these men, who burnt him and his brother with cigarettes, and locked them in cupboards for long periods of time, with threats of harm if they disclosed the abuse.
Unsurprisingly, Mr Lovett suffered a deterioration in his behaviour and performance at school. He said he went from an “A-grade student” to no longer caring about education, and was stealing to “buy food and clothes”. He described his behaviour as “out of control”. By his teenage years, he was experimenting with drugs, had become a school refuser, and was associating with older peers. At thirteen, he was regularly running away from home, sleeping in Salvation Army bins, or couch surfing among friends. He returned to his mother periodically, but this never lasted long, given the disruptive environment in the home.
Education
Mr Lovett completed Prep to Grade 5 at Preston North-East Primary school, and then Grade 6 at Debney Meadows Primary School. He indicated no history of problems in his earlier primary school years, with above average academic performance.
At the secondary level, he became distractable and disengaged from school. He often worried about the problems at home. He was expelled from Flemington High School for a history of truanting. He transferred into a specialist education programme at Kensington Community School, where he was expelled in Year 10 for smoking cannabis.
Employment
Mr Lovett’s employment history includes work as a labourer. He has qualified for his truck driving license, and has additional accreditation enabling him to drive heavy combination vehicles. He was previously employed with McColl’s Transport — driving interstate and local vehicles — but was suspended from driving about five years ago following a refusal to submit to a drug test. He has no further recorded history of employment.
Relationships
At seventeen, Mr Lovett formed a relationship with Ms McCarthy, which he described as the “first positive thing in my life”. He moved into her family home until they were able to secure public housing. They remained in a relationship for 21 years, and had six children. Their relationship was often unstable. It was impacted by his substance abuse and offending, including some incidents of family violence, which he described as “verbal”. There were periodic separations, before the couple separated for good in 2010. Mr Lovett became very depressed after the permanent separation and “went downhill”. He has typically returned to live with his mother, who has become increasingly frail from serious heart disease.
Mr Lovett had another relationship with a woman named Jacinta, which lasted seven years. The couple had a son, who is now aged seven. Mr Lovett described this as a “drug relationship”, and he never lived with his partner on a full-time basis. His son was removed by the authorities and placed in foster care, and he has had no further contact with him. Mr Lovett separated from his partner some weeks prior to being charged in this matter, and he reported a further deterioration in his mental health at that time.
Medical history
In 1991, at the age of nineteen, after separating from his partner, Mr Lovett overdosed on Rohypnol, and had to be resuscitated before he was stabilized. He was managed in intensive care at PANCH Hospital in Preston before he was transferred to St Vincent’s Hospital.
In 2008, at 27, he attempted suicide by dousing himself in petrol.[6] He suffered burns to his face and neck, and was treated for second-degree and third-degree burns at the St Vincent’s Hospital Burns Unit. At the time of the suicide attempt, he had separated from his partner again, was severely depressed, and was using large quantities of drugs.
[6]Presumably he ignited the petrol — and thus the burns — but Ms Jackson’s report does not expressly say so.
As we have seen, Mr Lovett was treated for a heroin overdose after being found unconscious in Mr Watts’ car at Brimbank Plaza. He told Ms Jackson that he injected approximately $100 worth of heroin, wanting to die, and that he was frightened that he would be unjustly charged with stabbing Mr Watts.
Mental health history
Mr Lovett reported a history of symptoms consistent with a depressive disorder that developed in his teenage years, including low mood, sleep disturbance, motivation and concentration problems, and poor self-esteem. He said he had difficulty controlling his anxiety, describing himself as withdrawn and as a “nervous kid”.
In Ms Jackson’s opinion, Mr Lovett’s history of flashbacks, nightmares, and recurring intrusive thoughts about his childhood trauma, also suggested symptoms of PTSD.
Mr Lovett said he was “unstable” throughout his life, and became dependent on drugs to manage his symptoms. Following his suicide attempt in 2008, he was prescribed Quetiapine (Seroquel), an antipsychotic medication, but could not recall for how long he took this drug. He indicated a number of episodes of drug-induced psychosis throughout his life, when he was taking combinations of benzodiazepines and stimulants and not sleeping for days at a time. He developed hallucinations and paranoid and disordered thoughts, but never had any specific intervention.
He has had mental health directives as part of sentencing orders in 1999, 2003, 2008, and 2019, but could only recall engagement with a person from the Victorian Aboriginal Health Service in 2003.
When he was remanded in custody in 2019, Mr Lovett was prescribed Sertraline. This is an antidepressant medication used in the treatment of depression, PTSD and general anxiety disorders. At the time of Ms Jackson’s assessment, Mr Lovett was stable on 100 milligrams of the drug, and reported some better psychological stability, although testing indicated that his symptoms had not resolved.
Substance abuse history
At the age of ten, Mr Lovett started experimenting with cannabis in an attempt to cope with the dysfunction in his family home. He said that the effects of cannabis relaxed him and reduced his anxiety. He continued to smoke the drug on a daily basis up until he was remanded in custody.
At fourteen, he was introduced to amphetamines (or “speed”). He smoked the drug on weekends, before he progressed to daily patterns of use at sixteen. By the age of eighteen, he was injecting amphetamines, which he continued using until he replaced that drug with methamphetamine (or “ice”).
Mr Lovett said he was a “guinea pig” for his drug dealer when ice was first introduced. He was in his early-20s at the time. He said the effect of the drug was “like speed but more intense”. He rapidly developed a dependency and continued to use most days up until his remand in 2019. Mr Lovett recognized a dependency on methamphetamine at the time of the current offence.
In 2004, he started using heroin and developed a dependency. He used heroin to mitigate the stimulant effects of the methamphetamine he was using as well. In 2018, he reduced his use of heroin, assisted by pharmacological support. He said it became difficult to access the drug and he became “sick of the routine of chasing it”. While he resolved his dependency, he continued to use heroin on a recreational basis up until he was charged in this matter.
At eighteen, Mr Lovett developed a dependency on benzodiazepines. He would engage in “doctor shopping” to access Serepax, Valium, and Rohypnol. This use could peak at 100 tablets a day. Attempts to reduce his usage, or abstain completely, resulted in some earlier seizures, but he never sought any medical assistance. After his third child was born, in an attempt to improve his stability, Mr Lovett made an effort to wean himself off these drugs slowly over several weeks. While denying a further dependency, he has continued to use benzodiazepines on occasion, dependent on availability. He used a large quantity of Alprazolam (Xanax) at the time of the present offending.
While he reported use of alcohol, he did not describe this as problematic, saying that he tended to drink on a social basis.
History of drug treatment
Mr Lovett has had a long history of methadone treatment, with mixed results. While he resolved his heroin dependency with pharmacological support, he had less success with his other dependencies, which he attributed to his mental health problems and reliance on drugs to manage the symptoms of those afflictions.
In 1994, as part of a sentencing order, Mr Lovett was directed to attend treatment at Pleasant View, a drug and alcohol rehabilitation programme, which he said he completed. He has attended De Paul House and completed a drug withdrawal programme there too. He has been to Odyssey House, but did not agree with the structure of the programme, and discharged himself within hours. Since his remand, Mr Lovett confirms that he has had no positive drug screens.
Account of offending
Mr Lovett told Ms Jackson that, leading up to the offence, he had separated from his partner, Jacinta, some weeks earlier. He was depressed, and his use of drugs had increased. He said he had not slept for a week as a result of using methamphetamine, and was anxious to get some sleep. He had drunk an unknown quantity of whiskey. During the course of the day and the evening, he had taken about ten Xanax tablets, had smoked cannabis and had used methamphetamine, and said he was “in and out of consciousness”.
Mr Watts visited Mr Lovett’s home along with Lochlan and Hayden Johns and others. Mr Lovett said that he had “blacked out” before he was woken up to the sound of an argument in his bedroom and saw the Johns brothers in a physical altercation with Mr Watts. He said he yelled at them to break it up, and noticed Mr Watts was injured before he collapsed. He said he agreed to take Mr Watts to hospital, and he was placed in the back seat of the car. He said he panicked and was frightened that he would be blamed for Mr Watts’ death; and for several hours he drove around the area, stopping to visit a female friend, then returning briefly to his home.
Throughout the course of the day, he continued to use methamphetamine and Xanax. He made some calls and met up briefly with a female friend, before driving to an outdoor carpark at the Brimbank Plaza, where he attempted to overdose on heroin, injecting $100 worth of the drug.
Criminal history
Mr Lovett has a prior criminal history that originates in the Children’s Court in 1987 and 1989. In Ms Jackson’s opinion, this history reflected emerging disruptive and antisocial behaviours in response to his history of trauma.
Between 1990 and 1999, he had multiple court appearances for driving offences, property offences (including burglary, theft and handling stolen goods), possession and use of drugs, and one offence of threatening serious injury. The sentences imposed included fines, community-based orders (“CBOs”), suspended prison sentences, and periods of actual imprisonment — one for eighteen months with a non-parole period of nine months in 1991, and another for three months later the same year. He breached some of these orders. In Ms Jackson’s view, this offending reflects his history of substance abuse and associated mental health decline.
Between 2001 and 2011, he sustained convictions for shoplifting, driving offences, possessing and using drugs, possessing a controlled weapon, damaging property, assault with a weapon, defrauding the Commonwealth, burglary, theft, handling stolen goods, threatening serious injury, false imprisonment, intentionally causing injury, threatening to kill, and breaching a family violence intervention order. In 2011, on the family violence and related offences, he was sentenced to two years and two months’ imprisonment with a non-parole period of 18 months. On the other offences, he received suspended sentences, an intensive correction order, CBOs and fines. Again, he breached some of these orders.
Between 2014 and 2019, Mr Lovett was convicted of possessing a controlled weapon, theft, driving offences, resisting an emergency worker, possessing and using drugs, cultivating cannabis, breaching a CBO, assault with a weapon, unlawful assault, and offending while on bail. In 2019, he completed a sentence of 109 days’ imprisonment and was placed on a community correction order (“CCO”) for 18 months. It must be that the present offending was committed while he was subject to the CCO, which is an aggravating factor. Other sentences imposed in this period included separate prison sentences of eight and thirteen days, a CCO, a suspended sentence, and fines.
Mr Lovett acknowledged to Ms Jackson that his inability to manage conflict in relationships or separations from his partners has been a significant trigger to his increased drug use and associated offending.
Ms Jackson’s opinions
In Ms Jackson’s opinion, it is likely that, at the time of this offence, Mr Lovett had been experiencing an episode of severe depression triggered by separation from his partner. This is consistent with his history of pre-existing mental health problems and his poor responses to previous separations resulting in further reliance on the use of drugs as a coping strategy.
Ms Jackson also opined that Mr Lovett’s drug and alcohol use and blackouts on the day of the offence suggested a state of acute intoxication that reduced his ability to think clearly or make rational decisions.
While the anti-depressant medication prescribed following Mr Lovett’s arrest in 2019 has assisted, psychological testing indicates that he continues to exhibit clinical symptoms in the severe and extremely severe range. In Ms Jackson’s view, this suggests that he may be presenting with a treatment-resistant depression. In addition, she considers that preliminary testing results identify a mild cognitive impairment, and highlight possible problems with memory and thinking skills, as well as a further risk of cognitive decline.
In Ms Jackson’s view, Mr Lovett’s well-documented history of poly drug use has dominated his life since adolescence and has contributed to problematic behaviours. She notes that he has had limited success with drug counselling, but has been responsive to pharmacological support, and is currently prescribed 100 milligrams of methadone.
Ms Jackson observed that Mr Lovett’s time in custody has been particularly restrictive, given the impact of the pandemic response. Despite this, he has worked hard to achieve some positive changes. He is actively involved in a peer support programme assisting newly sentenced young offenders, and is participating in the indigenous arts programme. He has completed a number of certificates that might assist his employment prospects on release, and has been working hard to maintain a relationship with his children.
In Ms Jackson’s assessment, Mr Lovett shows significant remorse for his failure to assist Mr Watts, and that this continues to weigh heavily on him. Mr Watts was a friend of his, and he is very mindful of the impact of his death on his family.
Ms Jackson observes that Mr Lovett regrets the years he has wasted living a drug-dominated lifestyle that has detracted from his family responsibilities and contributed to poor decisions. Significantly, he recognizes the importance of ongoing and long-term treatment to improve his prospects of rehabilitation and reduce his risk of reoffending.
Mitigating factors
Admissions
I turn next to consider the mitigating factors, commencing with Mr Lovett’s admissions.
As indicated earlier, Mr Lovett admitted to police that he undertook to take Mr Watts to hospital, that he failed in that regard, and that instead he drove around with him in the back seat. These were important admissions supporting the version of the offence of manslaughter to which he pleads guilty.
Plea of guilty
Next, Mr Lovett’s plea of guilty is a powerful mitigating factor.
In light of the Director’s concession that it could not be proved that Mr Lovett was the stabber, and given the absence of any evidence that, had Mr Watts been taken to hospital promptly, he would have survived, there could be, on the evidence, no conviction of manslaughter, whether by unlawful and dangerous act or by a criminally negligent omission. It is only Mr Lovett’s plea of guilty that fills that gap in respect of negligent manslaughter. A plea of guilty made in those circumstances is a very significant factor in mitigation. After all, he has made the case against himself by his plea.
Further, Mr Gullaci submitted that, bearing in mind this change in case, his plea should be regarded as having been offered and made at an early stage. Mr Lewis resisted that characterisation, as the offer was made over three years after the initial charge and soon before the proposed trial, which was due to commence in October last year. In his submission, an offer could have been made earlier. However, it must be remembered that it was Mr Lovett who offered to plead guilty to a form of manslaughter fundamentally different from the case alleged against him for the previous three years, and in respect of which an essential element of proof was lacking. As Mr Lewis fairly conceded, the way in which the case resolved had not been obvious to him until the offer was made. Thus, in my view, while it came late both chronologically and procedurally, the guilty plea was made at the first available opportunity after the prosecution changed its case in the face of the offer conceived of and made by Mr Lovett. In that sense, it is an early plea.
This course also relieved potential witnesses, including Ms Wilson, of the ordeal of giving evidence at a trial, and saved the resources that would have been devoted to such proceedings. That there was a committal hearing at which witnesses were cross-examined cannot sensibly reduce the mitigatory weight of the guilty plea in circumstances where Mr Lovett was then facing a murder charge — and on a basis which he denied and has since been abandoned by the prosecution.
The plea is also of additional utilitarian value in view of the backlog of cases and the associated strain on the criminal justice system in the wake of the pandemic.[7] While the pandemic is having less immediate impact than it once did, and things are improving, the fact remains that the criminal justice system as a whole is still under great strain, and, in some quarters, is still miles behind. This state of affairs is, I fear, likely to persist for some time yet.
[7]See, e.g., Worboyes v The Queen (2021) 96 MVR 344 at 356[35]-357[39] (per Priest, Kaye and T Forrest JJA).
Finally, I accept that, along with other matters, the plea of guilty indicates remorse, to which I now turn.
Remorse
Thus, another matter in mitigation is that I am satisfied that Mr Lovett is genuinely contrite over his offending and that he has insight into the irreparable loss his inaction has had a part in causing.
Several matters drive me to that conclusion. First, I accept that his attempt to overdose with heroin reflected, among other things, his feelings of guilt for his inaction. Second, his admissions in the interview reflect an acceptance of his wrongdoing in failing to get Mr Watts to hospital or to alert the authorities. Third, as I just mentioned, there is his plea of guilty and the circumstances in which it was entered. Fourthly, Ms Jackson’s observations of Mr Lovett show that he is remorseful for his offending and has insight into the irreparable harm caused to Mr Watts’ loved ones. Finally, it was apparent to me that Mr Lovett was affected by hearing Ms Wilson read her victim impact statement in this Court.
Delay
Next, Mr Gullaci relied on the long delay between arrest and this matter settling as a factor in mitigation.
The delay was caused partly by the disruption of the criminal justice system as a result of the pandemic, and also in a minor respect by the unavailability of counsel.
More important in causing the delay, however, in Mr Gullaci’s submission, was the exclusive focus by police, for over three years, on Mr Lovett as the one responsible for the stabbing. This focus was maintained, he submitted, without ever taking seriously Hayden Johns as a rival suspect, despite the evidence from the earliest stages of the investigation that he had made statements admitting to stabbing Mr Watts. It was not until 30 August 2022 that police provided a statement from another witness who said that Hayden Johns admitted stabbing Mr Watts and had demonstrated (accurately) where he had stabbed him. This statement was supported by a series of SMS messages apparently confirming Mr Johns making the same admission to others in the aftermath of the stabbing. The new statement was taken only on 22 August 2022, despite the fact that the witness had told the informant of the admissions by Mr Johns in October 2019.
Mr Lewis pointed out that the SMS messages were not provided to the informant at the time he spoke to the witness back in 2019. Moreover, he conveyed that the witness was suspected of being involved in the removal of significant pieces of evidence relating to the investigation.
In my view, whatever the informant’s belief about the veracity or reliability of the witness, it was incumbent on him to take a formal statement from the witness back in 2019. Had he done so, it is plain that, by orthodox investigative measures, he would have discovered the SMS messages at that time as well.
Mr Lewis assured the Court that the statement and the SMSs were not the catalyst for the decision to change tack and accept the plea offer. I accept that assurance. However, it is hard to imagine that the case for Mr Lovett as the stabber could reasonably have been persisted with once the additional information and statement were added to the existing evidence that Hayden Johns could not reasonably be excluded as responsible for the stabbing. This, in turn, means that it is likely that the matter would have resolved much earlier had these basic and necessary investigative steps been taken back in 2019.
All of that said, whatever its cause, the important aspects of the delay are twofold. First, there is the fact that Mr Lovett had the strain of, and the uncertainty associated with, a murder charge alleging he was the stabber hanging over his head for over three years. And yet that allegation is now abandoned. Second, he has used that time wisely and productively by working in the prison and doing courses to better himself. Accordingly, I am satisfied that the delay is a significant mitigating factor.
Impact of deprived early life on moral culpability
The next matter in mitigation concerns the impact on sentencing of the effects on Mr Lovett of his deprived early life.
In the plurality judgment in Bugmyv The Queen, the High Court said this:[8]
[43] ... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest ... that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[8]Bugmy v The Queen (2013) 249 CLR 571 at 594[43]-595[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
As the latter passages of the foregoing remarks might suggest, these principles are more usually applied to offenders with histories of violence when being sentenced for further violent offending. However, they are, in my view, also applicable to a case like the present.
Ms Jackson opined that the predisposing risks of Mr Lovett’s childhood trauma are clear, which increased his likelihood of negative outcomes linked to mental health problems, substance use disorders, and associated antisocial behaviours.
I accept that Mr Lovett’s appalling formative experiences compromised his capacity to react appropriately to the situation in which he found himself. For it is likely that those experiences, at least in part, have caused him to turn to drug use and criminal offending for much of his life. This, in turn, caused him to fear that police would never believe his account. As it happens, he was right, at least for the next three years or so. In these circumstances, I think Mr Lovett was rendered less equipped than others to make the right choice under the pressure of the competing interests of self-preservation and the duty of care he had assumed in respect of Mr Watts. This, in my view, lessens his moral culpability for breaching that duty of care and thereby offending as he did.
COVID-19 restrictions in custody
Next, it is now notorious that the hardship of time in custody has been greater than usual in the last few years as a result of the pandemic’s effects on incarceration protocols. These protocols, which have varied in their levels of restriction on those in custody, have coincided with almost the whole of Mr Lovett’s period of incarceration. This additional hardship operates in mitigation of sentence.
Prospects of rehabilitation
Finally, I turn to rehabilitation as a mitigating factor.
Mr Lovett’s long history of criminal offending, drug abuse and poor mental health suggest poorer prospects of rehabilitation. On the other hand, his admissions, plea of guilty, remorse and insight into the effects of drug use suggest that those prospects are better than that. Further, as we have seen, while in prison, he has worked, acted as a peer educator, engaged in culturally significant artwork, and participated in courses to improve his employability on release. He also has the support of family.
Important to Mr Lovett’s chances of reform will be whether he is able to maintain abstinence from drug abuse. His attitude and insights about his history of drug use, poor mental health and the need for rehabilitation, as expressed to Ms Jackson, are promising. At 50, he may well be ready to turn the corner. In so far as sentencing permits, he should be encouraged in those endeavours.
On balance, while I do not say that his prospects of reform are excellent, or even good, I am satisfied that they are at least reasonable.
Sentencing purposes
I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
General deterrence, denunciation and just punishment are important sentencing purposes in this case. While Mr Lovett’s fears were understandable and, as I have just said, his moral culpability is not as high as it might otherwise have been, all in the community should understand this. A person who, having undertaken to take a gravely injured person to hospital, fails to do so in a criminally negligent way that also amounts to a cause of death (even if not the primary cause), not only commits a moral wrong, but also will be guilty of manslaughter, and usually will be punished by way of a substantial prison sentence.
As for specific deterrence and protection of the community,[9] those purposes, while relevant, have largely been achieved already by the period Mr Lovett has spent in custody and the remorse he has for his crime. Further, the weight to be given to those sentencing purposes is reduced in view of his admissions, plea of guilty, and prospects of rehabilitation. Notwithstanding his traumatic early life and his criminal history, and despite his experience on this occasion, I rather doubt that, in the unlikely event that Mr Lovett found himself in a similar situation in the future, he would behave in anything like the same way again.
[9]In the summary of prosecution opening, it was said that, because Mr Lovett has prior convictions for threatening to kill for which he received prison sentences, he qualifies as a “serious violent offender” under s 6B of the Sentencing Act. However, because manslaughter is not a “serious violent offence”, he is not being sentenced for a “relevant offence”. The result is that s 6D (with its special emphasis on protection of the community) has no application in this case. That said, even if it did, I would impose the same sentence.
Rehabilitation remains an important purpose in fixing sentence. That Mr Lovett has reasonable prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight.
It is also necessary to recognize the interplay between rehabilitation and protection of the community. In all likelihood, Mr Lovett will be returning to the community very shortly. Indeed, under the sentence I am about to pass, he will be eligible for release on parole within a day or two, if not immediately. It is in the community’s interests that such prospects of rehabilitation as he has are maximised, so that, when he is released from prison, his chances of successful reintegration into the community are the best they might be. If Mr Lovett is given the opportunity to be supervised and supported on parole for the duration of his parole period, that is likely to be conducive to his further reform which, in turn, will redound to the benefit of the community in the longer run.
Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. I have applied this provision — which reflects the fundamental principle of parsimony — in arriving at the sentence.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.
Sentencing statistics show that, in respect of prison sentences for manslaughter for the period from 2015-16 to 2019-20, they ranged in length from about one-and-a-half to thirteen years. The average (or mean) term over the whole period was eight years and five months, and the median and the mode were both nine years. The median length of non-parole periods was six years, and the mode was five years.[10]
[10]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 249, April 2021, pp 3-5.
These statistics are, however, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations — such as the form of manslaughter; the gravity of the particular offence; whether or not there was a plea of guilty, significant prior convictions or other important aggravating or mitigating factors; and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons may assist in gauging current sentencing practices. With this in mind, helpfully, Mr Gullaci compiled a table of sentences for manslaughter by criminal negligence.[11] The head sentences imposed in those cases ranged from eleven to three years and nine months’ imprisonment, and the non-parole periods ranged from eight years to two-and-a-half years.
[11]From highest to lowest, the sentences in the table cases were as follows: Naddaf v The Queen [2020] VSCA 41 (11y/8y); DPP v Nelis [2022] VSC 50 (11y/8y); R v Lai [2015] VSC 346 (9y5m/6y11m); R v Jagroop (2009) 22 VR 80 (8y/5½y); DPP v McEachren [2022] VSC 386 (9y; TES 9¾y/7y); R v Sheen [2016] VSC 235 (7y; TES 8y/5y); R v Sharif [2020] VSC 226 (5½y/3½y); Reid v The Queen [2010] VSCA 234 (5y/3y); DPP v Russo [2019] VSCA 129 (5y/2½y); The Queen v Blackwell [2013] VSC 499 (3¾y; TES 4y/2½y).
I have considered all of the cases in the table, and many other manslaughter sentences more generally. It is possible to make more nuanced comparisons between these cases and the present matter. But, in the area of sentencing, it is almost always difficult usefully to compare cases. No two cases are ever truly alike. None of those I considered was quite the same as Mr Lovett’s case. And, in any event, sentences are not precedents to be applied or distinguished.
In the end, as always, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of manslaughter.
Submissions
Mr Gullaci submitted that Mr Lovett should be sentenced in a way that results in his being eligible for parole right now, or in the very near future.
While careful not to go beyond a prosecutor’s role, Mr Lewis took issue with Mr Gullaci’s submission. In essence, he submitted that the gravity of the offence warranted a heavier sentence than suggested.
Sentence
Sentence and pre-sentence detention
I turn now to impose sentence.
Mr Lovett, would you stand, please?
Balancing all relevant considerations as best I can, I think that this is an unusual case of manslaughter calling for a sentence a good deal less severe than sentences more commonly imposed for this offence, at least in recent times.
I have concluded that, for the manslaughter of Mr Watts, Mr Lovett will be convicted and sentenced to five years’ imprisonment with a non-parole period of three-and-a-half years.
Pursuant to s 18 of the Sentencing Act, I declare that, including today, 1,279 days (or just short of three-and-a-half years) of pre-sentence detention be reckoned as served under this sentence.
This means that Mr Lovett will be eligible for parole within a day or two,[12] or perhaps immediately in the event that he is to be credited with any emergency management days.[13] Either way, while it is now a matter for the Adult Parole Board, I think he has spent enough time in immediate custody for his crime. It is preferable — both for him and the community — that his reintegration into society commence as soon as is reasonably practicable under the supervision and support of the parole system.
[12]See s 74 of the Corrections Act 1986 (Vic).
[13]See s 58E of the Corrections Act 1986 (Vic).
Section 6AAA declaration
I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Mr Lovett’s plea of guilty.
This is hard to know, because it is difficult to estimate how, or to what extent, absent a plea of guilty, some of the findings I have made might have been affected in ways less favourable to Mr Lovett. Those findings relate to his remorse, his prospects of rehabilitation, and the weight to be given to the sentencing purposes of specific deterrence, rehabilitation, and protection of the community. Further, it is a particularly artificial exercise here, given that, on the evidence, there was so plainly no case of manslaughter by criminal negligence against Mr Lovett without his plea of guilty.
That said, had there been medical evidence that Mr Watts would not have died if taken to hospital promptly, my best estimate is that, absent an offer to plead guilty, upon a finding of guilt of the same offence by a jury following a trial, I would have imposed a sentence in the order of eight years’ imprisonment with a non-parole period of six years.
Disposal order
Finally, Mr Lovett consented to the making of the disposal order sought by the Director. I make that order.
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