R v Lovett
[2013] VSC 394
•7 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0177 of 2012
| THE QUEEN |
| v |
| MATT JAMES LOVETT |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July, 7 August 2013 | |
DATE OF SENTENCE: | 7 August 2013 | |
CASE MAY BE CITED AS: | R v Lovett | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 394 | |
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CRIMINAL LAW – Sentencing – Manslaughter – Unlawful and dangerous act manslaughter – Accused a member of group which spontaneously chased and assaulted an armed man who started a fight – Accused struck victim with wooden stick – Victim’s death not caused by accused’s actions – Guilty plea offered at early stage – Remorse – Youthful offender – Prior convictions – Prospects of rehabilitation – Held in protection in prison – Sentence of 4 years and 9 months’ imprisonment with a non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis with Mr N Goodenough | Office of Public Prosecutions |
| For the Accused | Mr J Williams | Victoria Legal Aid |
HER HONOUR:
Matt Lovett, you have pleaded guilty to the manslaughter of Ben McLeod. It is now my duty to sentence you for that offence.
On the evening of 10 February 2012, you were at a house in McMillan Court, Horsham, where a 15th birthday party was underway. Shortly after 9.45pm that evening, Mr McLeod pulled up at the front of that house and got out of the car. He had been drinking heavily that evening, and was in an angry and emotional state. He was brandishing a section of a pool cue, which he had brought from his home. He was calling out for Shane Campbell, one of the other guests at the party, who he knew. He was making verbally aggressive comments and striking the front fence with the pool cue. You and some others were standing in the front yard, as Mr McLeod did this. Mr McLeod was not known to you.
Shane Willshire, who lived at the house, came through the front door and saw Mr McLeod brandishing the pool cue. Shane Willshire armed himself with an aboriginal wooden hunting stick, called a bundi. Together with his brother, Gavin Willshire, and another guest, Christian Pickering, Shane Willshire approached Mr McLeod at the fence and told him to leave. Mr Pickering raised a glass beer bottle towards Mr McLeod, in an attempt to persuade him to leave.
Mr McLeod reached into the side of his pants and removed a hunting knife, which he displayed. Mr McLeod then swung the pool cue and struck Gavin Willshire across the side of the face, causing him to fall to the ground.
Nicole McEwen, the driver of the car in which Mr McLeod had been travelling, approached Mr McLeod and tried to pull him away from the fence. He shrugged her off, causing her to fall to the ground.
Shane Campbell came outside and, together with the Willshire brothers and Mr Pickering, he left the front yard and started advancing towards Mr McLeod. Mr McLeod began to back away, down the street.
You grabbed a garden stake from underneath the barbeque, and another man grabbed an iron pole; the two of you then joined the other men in their advance on Mr McLeod.
Mr Pickering tried to punch Mr McLeod, but missed and fell to the ground, cutting his hand in the process.
Mr McLeod then turned and ran away. You and the others continued running after him, for about 50 metres, until Mr Campbell tackled Mr McLeod and punched his jaw. You struck Mr McLeod to the back, causing the garden stake to break. The others in the group caught up and began assaulting Mr McLeod, who fell to the ground. Mr McLeod lay on the ground, with his arms up, trying to protect his head and body, as members of the group continued to assault him.
For your part, you struck him to the knee area with part of the garden stake, and then punched and kicked him as he lay on the ground.
The man with the iron pole stood over Mr McLeod and kicked and punched him, before striking him repeatedly to the head with the iron pole.
You and most of the group fled the scene in different directions.
When interviewed by the police, on the morning after the assault, you initially said that you had remained in the front yard, while others had chased Mr McLeod. However, later that day, you gave police a fuller account and admitted much of your involvement, including telling them about your use of the wooden stake. You said you had been scared when Mr McLeod attended the house with a knife and assaulted Gavin Willshire, and something “just snapped”. You said you had chased Mr McLeod and struck him across the back with the stake, because you wanted him to be scared. You said you now recognised that it was stupid for you to have become involved in the matter. You made a statement to police immediately after the record of interview.
Mr McLeod died from the injuries he sustained in the attack, which included multiple blunt force injuries to his head and face, as well as to his abdomen, chest and upper and lower limbs. The prosecution does not suggest that Mr McLeod’s death was caused by any of your actions. Rather, you were party to an implied agreement with, or aided and abetted, others to commit an unlawful and dangerous act involving the use of violence, but with no intention of going beyond simply causing injury.
The maximum sentence for the offence of manslaughter is 20 years’ imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.
Your actions occurred in the context of a spontaneously occurring affray, which started when Mr McLeod arrived at Shane Willshire’s home in an intoxicated and highly agitated state, and behaved aggressively towards your friends. Mr McLeod was brandishing weapons and making threats, and he undoubtedly struck the first blow against another person. Nevertheless, the incident quickly turned into a group attack upon a man who was effectively rendered defenceless by the group. It took place over a period of some minutes, and involved the use of crude, but effective, weapons by some members of the group. It led to the death of a person.
I have read the victim impact statement made by Donna Sims, Mr McLeod’s mother. The circumstances surrounding the death of her son have, quite understandably, caused her great distress, and affected others in the family.
You were born in November 1990. You never knew your father, who died from a drug overdose while you were still an infant. Your mother suffered for many years from serious mental illness and severe drug addiction, which affected her ability to properly care for you.
After spending some time in temporary foster care, at the age of 4 you went to live with your grandparents in Queensland. You remained with them until you were about 13, having little contact with your mother during that period. One of the handful of occasions when you did have contact with her was after she had taken yet another overdose of drugs; you were flown down to Melbourne to see her, as she lay in hospital, unconscious, and not expected to recover.
You demonstrated severe behavioural problems at school, and were treated from about the age of 5 for attention deficit hyperactivity disorder. You did not enjoy school and were a poor student. You had few friends and were often badly bullied. You responded to the bullying with aggression. You were frequently in detention or suspended from school.
There were also tensions at home with your grandparents, who tried to impose some discipline, but had trouble coping with your behaviour.
When you were 13, you returned to Victoria, to live with your mother, initially in a small country town and then in Horsham. Home life was not easy. Your mother had a number of relationships with violent men. And, unfortunately, her drug addiction had become more entrenched. There were tensions between you, in part, because you tried to persuade her to stop using intravenous drugs.
You began to regularly miss school, and eventually left school after year 9. You have had short periods of casual employment, such as picking olives and working in a factory, but your ability to hold down a job seems to have been seriously affected by your regular cannabis consumption.
Between the ages of 15 and 19, you appeared on 7 occasions in the Children’s Court. The offences for which you were dealt with in 2008 and 2009 included assaults, threats to kill and intentionally damaging property. Whilst the circumstances of most of this offending are not known to me, the nature of the offences is consistent with other evidence of you acting impulsively and having poor self-control.
In mid-2011, following a near fatal overdose, and a serious deterioration in her health, your mother spent a long time in hospital in Melbourne, followed by a period of recuperation with a friend in Portland. While she was away, you continued living on your own in her house in Horsham. You had no family or other supports in Horsham. During this period, your life seems to have become more chaotic and unstructured, and you committed a number of offences, including the current one.
On 28 May 2012, you pleaded guilty to charges of recklessly causing serious injury, assault in company and failure to answer bail, offences which occurred in December 2011. You were sentenced to an aggregate term of 6 months’ imprisonment. This was your first sentence of imprisonment.
On 17 October 2012, you pleaded guilty to charges of affray and recklessly causing injury, offences which occurred in September 2011. You received an aggregate sentence of 6 months’ imprisonment, which was ordered to be served cumulatively upon the sentence you were then serving.
Like the current offence, these offences apparently involved you engaging in impulsive acts of violence with others, against persons whose behaviour you felt was inappropriate and justified a fight.
You were 21 at the time of the offence. You are now 22. Your age is a very relevant consideration in sentencing you, both in setting a head sentence and the period before you will be eligible for parole. In the case of youthful offenders, such as you, rehabilitation is usually regarded as far more important than general deterrence. Rehabilitation benefits the community as well as the offender. Even when an offender has previously been imprisoned, a shorter period of imprisonment may be justified than would ordinarily be the case. Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence. And, in sentencing you, I am mindful of the fact that manslaughter is a serious offence.
I turn to consider your prospects for rehabilitation and questions of specific deterrence.
Dr Grant Lester, a forensic psychiatrist, examined you in May 2012 for the purposes of sentencing for the offence of recklessly causing serious injury. You showed no signs or symptoms of any psychiatric disorder, although he noted you described some disordered conduct and anger issues. He described you as feeling generally suspicious of the world and people, and finding it difficult to trust others and form relationships; given your history, it is perhaps not surprising that you have felt that way. He also said you have a tendency to blame your past criminal actions on the behaviour of others, including the police. He noted some evidence of paranoid personality traits, and advised that you stop using cannabis, as it may exacerbate your paranoid ideations and hence increase your potential for conflict and violence.
You have been in custody since your arrest in February last year. This has been the first time you have been in prison. During that time, you have stopped using cannabis, and have got fitter and healthier. You have some ambitions to work as a personal trainer, when you leave prison. Your grandfather recently saw you, for the first time in several years. He was surprised at the extent to which you had matured, physically and emotionally; how you were no longer blaming everyone else, and were starting to take some responsibility for your conduct.
You seem to have managed to stay out of trouble with the law between early 2009 and mid to late 2011. There have also been two periods of about a year each, when you were able to give up cannabis. Those facts also give me some hope that you have the potential to rehabilitate yourself.
I hope that prison has given you an opportunity to reflect on where your life may be heading, unless you learn to stop and think before you act, and find other ways of dealing with your anger. You must also give up cannabis for good, if you want to be a personal trainer or hold down any real job. I believe that you do have the ability to address those problems, but it is up to you to choose to do so.
Whilst there is clearly some risk of you behaving aggressively in the future, the need for specific deterrence in this case is not as important as the need to promote your rehabilitation, particularly having regard to your age and the circumstances of the offence.
There is also a need for an element of punishment and denunciation in any sentence.
You, Mr Pickering, Mr Campbell and another man were initially committed to stand trial on charges of murder.[1] At the first directions hearing after the committal, in February of this year, you offered to plead guilty to the lesser charge of manslaughter. The prosecution has only recently accepted that offer. In the circumstances, I treat this as an early plea.
[1]Although Shane and Gavin Willshire were also charged by police, they were not committed to stand trial.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a manslaughter trial.
There is also some evidence of remorse, both in your record of interview and in the observations of your grandfather.
Upon the dropping of the murder charges against Mr Pickering and Mr Campbell, they each pleaded guilty to one count of affray. On 8 July 2013, Mr Pickering was sentenced to a term of imprisonment of 1 year and 4 months,[2] and on 12 July 2013, Mr Campbell was sentenced to 1 year and 5 months’ imprisonment.[3] Having regard to the periods that each of them had already spent in custody,[4] they were released immediately. Although I have had some regard to the sentences so-far imposed on your co-offenders, it must be remembered that there is a lesser maximum sentence for the offence of affray, and their roles in the offence and their personal circumstances are in some respects different to yours.[5]
[2]R v Pickering [2013] VSC 353 (T Forrest J).
[3]R v Campbell [2013] VSC 348 (T Forrest J).
[4]513 days in the case of Mr Pickering, and 518 days in the case of Mr Campbell.
[5]The murder trial of the man who is alleged to have wielded the iron pole is due to commence next week.
Since you were arrested for this offence, you have been held in a protection unit. Prison authorities made a decision to separate you and the 5 other persons who were initially charged in relation to Mr McLeod’s death. However, I have no evidence as to the conditions in which you have been held, or the extent to which you may have been restricted in your activities. There is also no evidence as to whether you are likely to remain in a protection unit. I note that 4 of the other 5 persons originally charged with you have now been released.
I also bear in mind that, until very recently, you have laboured under the burden of the possibility that you would have to face trial for the more serious offence of murder.
In recent times, your mother has finally managed to cease using drugs. However, she suffers from a number of serious and complex medical problems, and her future life expectancy is uncertain. There is a possibility that she may die while you are in prison.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 4 years and 9 months. I fix a period of 3 years as the period you must serve before becoming eligible for parole.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 6 ½ years’ imprisonment, with a minimum non-parole period of 4 ½ years.
Further, I declare that the period to be reckoned as already served under this sentence is 179 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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