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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lovett

Details

AGLC: R v Lovett [2023] VSC 50
Case: [2023] VSC 50
Decision Date: 15 February 2023

CaseChat Overview and Summary

The matter before the Court was an appeal against sentence by the respondent, Lovett, who had been found guilty of manslaughter by negligent failure to take a deceased person to hospital. The deceased had been gravely injured during an altercation with two others at Lovett's home and subsequently died in the back seat of Lovett's car. Lovett had originally been charged with murder, however, the prosecution was unable to establish who stabbed the deceased. After three years, Lovett offered and the Director accepted a plea of guilty to manslaughter by negligent failure to take the deceased to hospital. The court was required to determine an appropriate sentence, taking into account the plea of guilty, Lovett's remorse, delay in offering the plea, his extensive history of offending, drug abuse and poor mental health, and the hardship of prison conditions during the pandemic.

The court held that this was an unusual case, where the deceased died due to the failure of the accused to take him to hospital after a stabbing incident. The court noted that the delay in offering the plea of guilty and the accused's extensive history of offending, drug abuse and poor mental health were aggravating factors. However, the court also took into account the accused's remorse, his appalling deprivation in early life, and the reasonable prospects of rehabilitation. The court held that a sentence of five years' imprisonment with a non-parole period of three-and-a-half years was appropriate, but for the plea of guilty, the sentence would have been eight years' imprisonment with a non-parole period of six years.

The court considered the principles set out in the Sentencing Act 1991 (Vic) and held that the sentence imposed was just and appropriate in the circumstances of the case. The court took into account all relevant factors and exercised its discretion in a manner that was consistent with the principles of sentencing in Victoria.

The final orders of the court were that the sentence of five years' imprisonment with a non-parole period of three-and-a-half years be upheld, and that the appeal against sentence be dismissed. The court held that the sentence imposed was just and appropriate, taking into account all relevant factors, and that the appeal against sentence should be dismissed.

Orders