R v Lubik
[2011] VSC 137
•13 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0028 of 2010
| THE QUEEN |
| v |
| PETER LUBIK |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2011 | |
DATE OF SENTENCE: | 13 April 2011 | |
CASE MAY BE CITED AS: | R v Lubik | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 137 | First amendment 14 April 2011 |
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CRIMINAL LAW – Sentencing – Manslaughter – Involuntary manslaughter involving a dangerous and unlawful stabbing of the accused’s wife in family home - Offer to plead guilty - Matters in mitigation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown Ms D. Karamicov | Office of Public Prosecutions |
| For the Accused | Mr W.B. Lindner | Lewenberg and Lewenberg Solicitors |
HIS HONOUR:
INTRODUCTION
Peter Lubik, you have been found guilty by the jury empanelled upon your trial in this Court of one count of the manslaughter of your wife, Barbara Lubik, (as an alternative to Count 1). The jury acquitted you of the count of murder of Barbara Lubik.
In particular, the jury’s finding means that you were found guilty of involuntary manslaughter involving an unlawful and dangerous act.
MY ROLE
My first duty in sentencing you is to form a conclusion, based on the evidence, as to the relevant facts relating to the count on which you have been convicted.[1] I must also make findings and take into account all relevant matters relating to you. I shall proceed to do so, mindful of the relevant principles, namely –
(a)that any finding by me must be consistent with the verdict of the jury which in this case is manslaughter;
(b)that I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which you have been convicted; and
(c)that I am required to be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of sentence.[2]
SECTION 5 OF THE SENTENCING ACT 1991
[1]Cheung v R (2001) 209 CLR 1 at [14] per Gleeson CJ and Gummow and Hayne JJ.
[2]R v Mohammed (2004) VSC 423.
I am required to have regard to several matters in sentencing you including:
(a)the maximum penalty prescribed for the offence;
(b)current sentencing practices;
(c)the nature and gravity of the offence;
(d)your culpability and degree of responsibility for the offence;
(e)the impact of the offence on any victim of the offence;
(f)the personal circumstances of any victim of the offence;
(g)whether you pleaded guilty to the offence and if so the stage at which you did so or indicated an intention to do so;
(h)your previous character; and
(i)the presence of any aggravating or mitigating factors concerning you or of any other relevant circumstance.
I must also consider the purposes for which sentences may be imposed, being:
(a)to punish the offender to an extent and in a manner which is just in all the circumstances;
(b)to deter the offender or other persons from committing offences of the same or a similar character;
(c)to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d)to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and
(e)to protect the community from the offender.[3]
[3]Section 5(1) of the Sentencing Act 1991.
This is not an exhaustive list of all relevant matters, which matters I nevertheless take into account.
CIRCUMSTANCES OF THE OFFENCE
The matters which were before the jury arose out of events which occurred on 25 January 2009.
On that day you and your wife, Barbara, were residing at 8 Julius Crescent, Noble Park. You both went shopping in Dandenong with a friend of Barbara’s, Elizbieta Wijas. The three of you were in a furniture shop when you went missing, and when Barbara and Mrs Wijas went to look for you your car had gone from the car park.[4] Barbara tried to contact you by mobile phone, but you did not answer any of the calls. These unanswered calls were over a two hour period, between 12.08pm and 2.04pm. Barbara and Mrs Wijas continued shopping as these calls were being made, and drove to Southland to look at furniture shops there.
[4]See evidence of Mrs Wijas.
Once Barbara and Mrs Wijas had finished shopping, Mrs Wijas drove Barbara home at about 3.00pm. Mrs Wijas dropped Barbara off at the corner of her street. Mrs Wijas told Barbara that she was scared, and Barbara told her that she was not scared of you anymore. The relevance of this will become apparent when I discuss your previous behaviour towards Barbara. Shortly after Mrs Wijas dropped Barbara off she got a phone call from Barbara telling her that you were not at home.
Later, while Mrs Wijas was in church at about six o’clock, she got a text message from Barbara which said, “Don’t give him.” Mrs Wijas had previously lent you $3000, in 2008, and she said that she first thought that Barbara was instructing her not to lend you any more money.
Barbara previously told Mrs Wijas that, she was unhappy with your gambling, and your losing money.
Sometime after Barbara arrived home, you came home. Later in the evening, at some time after 6pm and before 9.42pm, a physical confrontation occurred between you and Barbara in the dining room of your home which resulted in the death of your wife from a single stab wound to the neck. I am unable to say precisely what happened. The wound was five centimetres deep and severed Barbara’s carotid artery. The forensic pathologist who performed the autopsy on Barbara stated that the degree of force required to cause the injury (on a scale of mild, moderate, and severe) was at least moderate, and that the injury would have been rapidly incapacitating and fatal. There was no evidence of a struggle, such as overturned furniture. There was no suggestion that, Barbara’s body had been moved. The evidence of the blood stains did not add much information to what had taken place, save to confirm that the confrontation took place in the dining area.
Although we cannot be certain about the exact time of death it is known that at 5.33pm a call was made from your house to the TAB. At 7.03pm, a call was made to a taxi company requesting a taxi to Crown Casino. When the taxi arrived, shortly after 7.19pm, no one came out of your house to get in the taxi. The taxi driver tooted the horn and knocked on the door, but got no answer. I find that you made these calls to the TAB and the taxi company.
At 7.05pm a call was made to a friend of yours, Mr Pawlak, with whom you had previously been to the Casino. He did not answer the phone. At 7.24pm there was a call from your home to Mrs Wijas and she also did not answer her phone.
At 9.42pm, you called Emergency Services on 000. You requested an ambulance. You told Emergency Services that Barbara tried to choke you and that you broke out and hit her. There is no evidence of Barbara being hit or punched. You did not mention that she had sustained a knife wound to the neck and was bleeding profusely.
At 9.47pm Emergency Services called you back, as you had hung up on them. You stated that you had used your fist, Barbara was not breathing, she was lying on the floor and there was lots of blood. You said, during the call, that you were following the instructions of Emergency Services to place Barbara on her back and administer CPR. There is, however, no evidence that you did this. I conclude that this is because Barbara was already dead.
The evidence of the police attending your house on that night is that when they arrived you were kneeling next to Barbara, who was lying face down next to the dining table in a large pool of blood, prodding her, talking to her and crying. You appeared to be trying to wake up Barbara. You were wearing boxer shorts but no shoes. You were observed to be alcohol affected in that your eyes were bloodshot, your breath smelt of alcohol, and you were unsteady on your feet. You asked the police to help Barbara. At some stage you appear to have washed blood off your hands.
The police found a blood stained white handled knife on the dining room table. This knife had your DNA on the handle. They also found a black handled knife between Barbara’s left arm and her body. The black handled knife was covered in blood, and it was not possible to take DNA tests to determine who had been holding it.
You were taken to Dandenong Police Station where, at approximately 1.00am on 26 January 2009, you were examined by Dr Ryan Tan a clinical forensic medical registrar for the Victorian Institute of Forensic Medicine. Dr Tan testified that you had dried blood on your hands and towards the nail of the ring finger there appeared to be a wound, measuring some 7mm, that was painful to touch. He found no injury to your head, neck, chest or back.[5] He found no evidence to support your suggestion that Barbara tried to choke you, as you told the 000 operator.
[5]Transcript 742.
Dr Tan testified that you are a type 2 diabetic, and that you said you had not eaten since the morning of Barbara’s death. You told Dr Tan that you had drunk two or three beers the previous afternoon. Dr Tan tested your blood sugar levels, which were very low. The effects of low blood sugar are varied. Dr Tan found your symptoms to be on the mild end of the spectrum and he said that the very low reading therefore surprised him. He testified that, hypoglycaemia (low blood sugar) could affect judgment, rationality and brain function, and could lead to lethargy, tiredness, malaise, and loss of motor coordination such that, a person might look unsteady on their feet, or have slurred speech. However, Dr Tan did not notice these symptoms in you when he examined you. He said that when he examined you that you seemed to be rational, and with no significant cognitive impairment.
After the examination you were transported to Dandenong Hospital, where you received medical attention.
On 29 January 2009 Mr Cieslak, a friend of yours, had a conversation with you at the hospital. You told him that you and Barbara had argued over you going with some mates to the Casino. You told him that Barbara said that you could not go and you said that you were going anyway. You said that she left the room and re-appeared while you were lacing up your shoes, and that she came with a knife in her hand and said, “You’re not going anywhere.” You said that you tried to take the knife from her. You showed Mr Cieslak your ring finger and your middle finger, which were cut but not bleeding. You said that the wound was superficial. You said that you struggled with the knife, and that Barbara lost her balance and fell, and at that point her throat was slashed. You did not go into any more detail than that.
THE JURY’S FINDINGS
In order to find you guilty of manslaughter in the circumstances I find that the jury must have come to the following conclusions:
(a) that you stabbed Barbara in the neck with a knife;
(b) that your action in stabbing Barbara in the neck caused her death;
(c) that your action in stabbing Barbara was conscious, voluntary and deliberate;
(d) that they were not satisfied that at the time you stabbed Barbara you intended to kill or to cause her really serious injury;
(e) that you intended to stab Barbara;
(f) that your action in stabbing her was unlawful and dangerous; and
(g) that you did not believe that it was necessary to stab her to defend yourself.
In reaching this decision, the jury specifically rejected the version of events that you told to Mr Cieslak at the hospital and relied on in your defence; that is that Barbara’s death was a tragic accident that occurred when, during an argument over you going to the Casino, Barbara took up a knife against you, you struggled with her and she fell fatally, injuring herself on the knife as she did so.
Consistent with the jury’s decisions, I find that you did argue with Barbara over going to the Casino but contrary to the version you told Mr Cieslak I do not accept that she took up a knife and approached you with it. On the contrary, I find that you took up a knife and deliberately stabbed her with it, although I accept, as the jury found, that you did not intend to kill or seriously injure Barbara in doing so.
SENTENCE
The maximum sentence prescribed for manslaughter is 20 years’ imprisonment.[6] In deciding upon a sentence, I have had regard to current sentencing practices and also to the Sentencing Snapshot for manslaughter prepared by the Sentencing Advisory Council, of June 2009. Mr Brown of counsel, who appeared with Ms Karamicov for the Crown, at the Court’s request suggested a sentence range of eight to ten years for the head sentence, and six to eight for the non-parole period.[7]
[6]Section 5 Crimes Act 1958.
[7]Plea transcript 1.
MITIGATING FACTORS
It was submitted by your counsel, Mr Lindner, on your plea, that, there were a number of mitigating factors which I should take into consideration when deciding your sentence. I will now address each of these factors.
OFFER TO PLEAD GUILTY
On 28 September 2010, just over a week prior to the start of your trial, you made an offer to plead guilty to manslaughter. Your offer was based on culpability arising from involuntary manslaughter involving an unlawful and dangerous act. This was the verdict ultimately returned by the jury.
Your offer to plead guilty is relevant to sentencing,[8] and you ought to receive the benefit of that offer,[9] not only for utilitarian reasons, but also as it indicates some degree of accepting responsibility for your actions. However, it must also be taken into account that, once your offer was rejected, your case was run on the basis that you were not guilty of any offence at all. Although your failure to plead guilty to manslaughter at the trial does not diminish the mitigatory effect of the offer, the lateness of the offer mitigates somewhat the argument that your offered plea was some indication of remorse or accepting responsibility for your actions.[10] The lateness of the plea offer diminishes the value which might have attached to an earlier plea.[11]
[8]R v Cardoso (2003) 137 A Crim R 535 at 698 to 699.
[9]R v Bartlett (1996) 2 VR 687; 698 – 699.
[10]DPP v Pennisi [2008] VSC 498 at [11] per Neave, Bongiorno JJA and Byrne AJA.
[11]Ibid.
REMORSE
On your behalf I was asked to consider a number of factors that, it was suggested, evidenced your remorse. The first of these was the guilty plea offered to the manslaughter charge, as discussed above. Secondly, I was asked to take into account the fact that following the incident you did not attempt to dispose of or move, Barbara’s body, and rather you rang Emergency Services in an attempt to seek help.
I was also asked to consider the evidence of Sergeant Kranidis who attended the scene of the incident and who testified that she saw you trying to “wake” your wife, at the scene, that you were “beside” yourself at your inability to wake her, and that you were crying at that time.[12] She also testified that she saw you plead with another police officer, Leading Senior Constable Kelly, to help you wife.[13]
[12]Transcript 476-477.
[13]Transcript 477.
The conversation you had with Mr Cieslak at the Dandenong Hospital was also presented to me as further evidence of your remorse, particularly in relation to the fact that you were seen to be crying over the incident.[14]
[14]Transcript 546.
The final evidence in relation to remorse was the report of Dr Ruth Vine consultant psychiatrist dated 1 March 2011. In particular, I was taken to the concluding remarks of the report, which state:
“As noted above, Mr Lubik continues to experience regret and remorse at the death of his wife. Notwithstanding the difficulties in their relationship, he is preoccupied by his role in his wife’s demise and at times feels that his death is a necessary consequence of that event.”[15]
[15]Report of Dr Ruth Vine dated 1 March 2011, p 5.
However, it should be noted that the evidence at the trial established that after previous episodes in which you had hurt or threatened Barbara, episodes which often took place after you had been drinking, you evinced similar feelings of remorse for your behaviour. This, however, did not stop you hurting or threatening Barbara again.
PRIOR CONVICTIONS
It is agreed that you have no relevant prior convictions.
PERSONAL CIRCUMSTANCES
You are currently 42 years of age having been born in Poland in a town called Karpicz on 6 June 1968. You were 40 years old at the date of this offence. You came to Australia with your family in May 1982 aged 14 years and attended Maribyrnong High School and Elwood High School, which you left halfway through year 11. You describe your upbringing as a strict Catholic one in which you attended church weekly.
In 1987, at age 19, you undertook an apprenticeship as a smallgoods manufacturer which you completed in 1991. You worked in that occupation at a business called Acland Continental in St Kilda for approximately eight years until about 1999 or thereabouts, and then a year at Noble Park Continental. In 1997 you married your first wife but you separated six months later.
Because of a car accident in the late 1990s you have a neck injury which meant you did not work for a number of years after the accident. However, in November 2005 you started work at Ridder’s Fresh manufacturing smallgoods in Clayton. This work involved quite a lot of heavy lifting, which in turn led to a shoulder and lower back injury sustained on 8 June 2006. On 9 October 2006 you had reconstructive surgery on your shoulder, but it was unsuccessful and left you in chronic pain.[16] This injury has prevented you from working ever since. This, in turn, has led to you developing depression and a dependence on alcohol and taking up gambling at the pokies. There was evidence that you attended at Dandenong Hospital with chronic neck pain on 21 and 22 December 2008, and that an ambulance attended your home on 1 January 2009 after you complained of chronic neck pain and associated depression.
[16]Report of Dr Charles Flanc, 22 February 2008; Exhibit 6 on the plea.
In May 2006 you met Barbara Stryczek and you were married on 15 July 2006. Barbara was also from Poland. She first came to Australia in December 2004. Prior to coming to Australia, Barbara had lived with her father, Czeslaw Stryczek, at their family home, in Bielsko Biala, Poland. Barbara seemed to enjoy being in Australia, and in June or July 2005 she returned to Poland in order to organise a student visa. She then returned to Australia and lived with Mr and Mrs Nowakowski. Barbara got work as a seamstress, at Southland. You and Barbara were both keen gardeners.
A number of people who knew you and Barbara said that the marriage was at times turbulent, and that although you were normally a good husband, this would change when you had been drinking. Evidence was given that the police attended at your house on a number of occasions, and that Barbara often left your house and called friends to pick her up when you had been drinking. There was also evidence of you physically hurting Barbara such as pulling her hair.[17] Evidence was also led that you made threats to commit suicide when Barbara left, if she did not return, and on more than one occasion destroyed her clothes, shoes and jewellery when you had had a fight with her.[18] Evidence was led that you had a gambling problem which concerned Barbara.
[17]See evidence of Mrs Wijas.
[18]See evidence of Mrs Nowakowski, Regina Theiss, Halina Kowalcyzk, Leading Senior Constable Monica Kusnierz, Constable Toomey, Marie Lazaridis, Mrs Wijas.
In September of 2007 both you and Barbara took out intervention orders against one another. Your intervention order was revoked on 14 March of 2008, and Barbara’s intervention order expired on 19 September 2008. On 24 November 2008 you pleaded guilty to breaching the intervention order by consuming alcohol in the house around Melbourne Cup Day in 2008.
There was evidence that you were admitted to the Dandenong Psychiatric Hospital twice during your marriage, the dates being 11 August 2006 to 15 August 2006, and on 8 January 2007. The admissions followed threats made, to kill yourself.
You have a number of ongoing medical conditions including depression, chronic pain and diabetes. I note that the psychiatric report from Dr Ruth Vine states that, in her opinion, you are “suffering from an abnormal grief reaction with associated depressed and lowered mood” and that your mood will continue to be exacerbated by your problems with chronic pain.[19]
[19]Report of Dr Ruth Vine dated 1 March 2011, p 4.
TIME ALREADY SERVED
You have been in custody since 25 January 2009. At the time of your plea on 16 March 2011 you had been in custody for 781 days.
CURRENT MEDICAL CONDITIONS
I have already referred to some of your medical conditions.
Since 28 February 2010 you have been housed at the psychiatric hospital at Port Phillip Prison, the St Paul’s Unit, which I take into account. Given your current and ongoing medical issues I understand that you will be required to serve your sentence in the prison hospital in the short to medium term. In your plea it was submitted that this was a more onerous imprisonment than would be experienced in the mainstream prison environment as you would not have the same opportunities to undertake work and rehabilitation programs. A list of your extensive daily medications was tendered.[20]
[20]Exhibit 7 on the plea.
In addition it was also submitted that your medical condition should also go towards moderating the sentence imposed on you on the basis that impaired mental functioning, such as the depression, lowered mood and abnormal grief reaction described by Dr Vine, is relevant to sentencing in a number of ways. Of relevance to your personal circumstances is the consideration that because of your impaired mental functioning the sentence given to you may weigh more heavily on you than it would on a person of normal health.[21]
[21]R v Verdins (2007) 16 VR 269 at [32].
GRAVITY OF THE OFFENCE
The crime you have been found guilty of is a very serious offence. It is made even more serious by the fact that the person whose manslaughter you have been found guilty of was your wife: a person who no doubt loved and trusted you. Your crime falls into a category of relationship manslaughter. During your plea I was taken to a number of cases where a person was found guilty of relationship manslaughter in order to demonstrate the wide variety of circumstances that can lead to this verdict. I was also taken to the words of Redlich J in the case of, R v Sypott[22] where his Honour said:
Each crime has its own objective gravity. Although manslaughter throws up the greatest variety of circumstances affecting culpability, the keyhole element in assessment of gravity of the objective circumstances of such cases is that they involve the felonious taking of a human life. The factual matrix of the offence may significantly reduce the blameworthiness of the offender and that also must be assessed.
[22]Unreported decision (2003) VSC 327, 30.
I was not taken to any authority which offered factual circumstances that are on all fours with the circumstances in this case. It is clear that each case must be decided on its own merits and thus it is necessary to look at the exact circumstances in your case including: the weapon used; the setting of the crime, in this case a domestic environment, an environment in which a person should feel safe; the force, intensity and duration of the act causing death; the state of mind of the person committing that act; and the behaviour of that person after the act.
Your counsel referred me to a number of cases and the sentences ordered to get as he said a sense of the sorts of sentences imposed in relationship manslaughter cases.[23] I have taken all these into account.
[23]Plea transcript 21-25; R v Pashalay [1998] VSCA 18; Goodwin [2001] VSC 519; Mitrovic unreported Supreme Court of Victoria, 7 May 1985; R v Hunter [2002] VSC 162; R v Bellingham [2002] VSCA 35; R v Sypott [2003] VSC 327 at [30] per Redlich J; DPP v Nguyen [2004] VSC 280; R v Jagroop (2009) 22 VR 194 at [64]-[65] per Weinberg JA; DPP v Pennisi [2008] VSC 498 and R v Mohammed [2004] VXC 423 at [46] per Kaye J.
Your counsel submits that the cause of death was a single knife injury, rather than a frenzied attack, in which the knife penetrated 5cm deep without leaving any hilt mark. Your counsel submits that this is suggestive of an attack of short duration, and low in terms of savagery of attack. Although I am not able to say which of the two knives found at the scene caused the wound, both the white handled knife and the black handled knife were not normal dining knives but were dangerous, lethal weapons if used as such.[24] I find, however, that you intended to stab your wife in the neck, or at least in the upper region of her body, which is a very delicate area of the body, and in an area which you must have known was extremely dangerous to stab (although I accept, as the jury found, that you did not intend to kill or really seriously injure Barbara). Although you may have only stabbed Barbara once that does not mean the gravity of the offence was low in terms of savagery.
[24]Exhibit C7.
Your counsel also submits that there was no attempt to move or dispose of the body. Rather, you telephoned Emergency Services. On the other hand you withheld from Emergency Services that you had stabbed your wife and that she was bleeding profusely, and you led Emergency Services to believe that she tried to choke you and you had punched her in response.
Although you were found kneeling over your wife, and pushing her back as if to attempt to resuscitate her, I find that after you had stabbed her you took time to take off your trousers and hang them on a hook, in the entry lobby of the house.
Your counsel submits that you had consumed some alcohol earlier in the day and had not eaten since the morning, possibly affecting your blood sugar levels and, among other things, impairing your judgement. I have already referred to the evidence of Dr Tan who attended on you at the Dandenong Police Station on 26 January 2009.
Your counsel submits that, to the extent that your low blood sugar level may have affected your mental capacity at the time of offending, general and specific deterrence may be moderated, as a sentencing consideration.[25] In view of the evidence of Dr Tan, the Emergency Services call, and the police who observed and spoke to you at the scene, I am not satisfied, on the balance of probabilities, that your mental capacity was affected by hypoglycaemia at the time of the stabbing.
[25]R v Verdins (2007) 16 VR 269 at 276 per Maxwell P, Buchanan and Vincent JJA.
Your counsel contends that, as to the gravity of the offence, this offence falls within the mid to low range of offences of involuntary manslaughter. As discussed below I do not accept such a characterisation.
Mr Lindner says that, given the offer to plead guilty, and the genuine and continuing remorse, and other matters of mitigation, including the prospect of serving part of your sentence in the prison hospital, and given that your prospects of rehabilitation are good, a longer than usual parole period should be ordered.
Your counsel conceded that the sentencing range indicated by the Crown is within the proper boundaries of the Court’s discretion but, in light of all of the matters that he placed before the Court, a sentence at the lower end of that range both in the head sentence and the non parole period would be appropriate in this case.
VICTIM IMPACT STATEMENTS[26]
[26]Section 95A of the Sentencing Act 1991.
Barbara’s death has deeply affected her friends and family. There is no dispute that those who filed the impact statements were victims of your crime. I accept your counsel’s objections as to the non admissibility of certain portions of those statements, and I have ignored those portions.
Barbara’s father, Czeslaw Stryczek, says that before Barbara came to Australia she lived with him. He is unable to come to terms with the fact that his child has been killed. He says that, he has lost sense to his life. He says that parents should not bury their children and mourn their death. He says that without counsellors he would not be able to cope. He says that Barbara was a young person, cheerful and full of life, and that she certainly did not deserve such a death.
Regina Theiss was a friend of the deceased. Her parents are Mr and Mrs Nowakowski, who looked after Barbara when she first came to Australia. Mrs Theiss acted on behalf of Barbara’s family in tidying up her affairs in Australia and returning her ashes to Poland. Mrs Thiess was a very good friend of Barbara’s, spending much time with her. She was a personal witness to the abuse Barbara suffered at your hands. She is haunted by the memory of Barbara and her death, frightened and alone. She says that the grief she and her family have endured is inexplicable.
Mrs Danuta Nowakowski says that, Barbara lived with her for eight months and was like a daughter to her. Barbara sought support and advice from her and her husband, and the news of Barbara’s stabbing has been, and remains, the most traumatic event of her life. She says that, Barbara’s killing has stunned her and her family. She says that she was speechless, and unable to comprehend the reality of Barbara’s death, and the enormity of the consequences that followed. She says that Barbara’s death has devastated her life. She says that she has been on edge, in tears, and afraid of her own shadow ever since the stabbing. She says that she has been unable to sleep without medication. She says that she locks all her doors and windows, pulling the blinds down, and is fearful of going outside at night. She says that every time she sees a kitchen knife she thinks of Barbara’s death. She says that the event has changed her life for ever.
OBSERVATIONS
I have had regard to all the matters referred to above, including the statutory matters I am required to consider.
Involuntary manslaughter by an unlawful and dangerous act is often regarded as less morally culpable than voluntary manslaughter, where the offender intends to kill or really seriously injure the victim. On the other hand, moral culpability for manslaughter by criminal negligence is regarded as less than for manslaughter by an unlawful and dangerous act, as manslaughter by an unlawful and dangerous act involves the intention to harm.[27] The jury’s verdict necessarily involved a finding that you intentionally committed an unlawful and dangerous act, to whit stabbing your wife.
[27]R v Jagroop [2009] VSCA 46 per Weinberg JA at [64]-[65] with whom Williams AJA agreed.
Your deliberate stabbing of Barbara involved a deliberate intention to harm her, although as I have said previously, I accept that, as the jury found, you did not intend to kill or seriously injure Barbara. It was a shocking and cowardly crime. You were duty bound to protect her. You are a big man. She was small. There was not the slightest justification for taking up a knife against her in her own home. You should never have raised a hand against her, let alone a knife. Your wife trusted and honoured you. She was entitled to feel safe and secure in her own home, with her husband. She constantly forgave you for your abusive, bullying and boorish behaviour. Despite her loyalty, love, forgiveness and companionship, you cruelly and deliberately stabbed her with a knife, killing her. I can discern no reason for your conduct other than your repeated abuse and bullying of your wife.
Your past aggressive and abusive behaviour towards Barbara diminishes any mitigating suggestion that your conduct was part of an isolated event.
Naturally I have taken into account, all that has been said in mitigation. I do not accept your counsel’s characterisation of the offence as falling within the mid to low range of offences of involuntary manslaughter. I must have regard to the need to deter this kind of behaviour. I find that there is less need to deter you from further offence. I am sure that you have already learnt the devastating effects of your behaviour.
In Pashalay,[28] Winneke P, in an appeal involving domestic relationship manslaughter, cited, with approval, the observations of White J sitting in the Court of Criminal Appeal in the Supreme Court of South Australia in Lupoi as follows:[29]
Making every allowance that can be made for the respondent’s general good character and law-abiding life of hard work and provision for his family, the sentence must reflect the gravity of what he did, not only to punish him adequately for what he did but also to deter others from doing likewise. Spouses, both husbands and wives, have to be protected from this kind of violence. The bringing of a loaded gun or any gun or weapon into a domestic quarrel, especially where there has been a history of past violence, must be deplored and deterred as strongly as possible. The punishment and deterrent aspects of sentencing weigh heavily in the scales in this case. They outweigh factors personal to the respondent.
I believe those observations are particularly apposite to your circumstances.
[28][1998] VSCA 18 at 6.
[29](1984) 15 A Crim R 183 at 190.
I believe that the sentence that I propose to impose: does not exceed that which can be justified as appropriate or proportionate to the gravity of your crime considered in the light of its objective circumstances; is just in all the circumstances; gives weight to your offer to plead guilty; gives weight to general and specific deterrence; has regard to your rehabilitation and your personal circumstances; manifests the denunciation of the Court for the conduct you have engaged in; is no more severe than that which is necessary to achieve these purposes; and has proper regard to all other matters required of me in passing sentence upon you.
For these reasons:
(a) I record a conviction of manslaughter against you.
(b) I order that you serve a term of imprisonment of 9 years and 6 months.
(c) I fix a period during which you are not eligible to be released on parole of 6 years and 6 months.
(d) Pursuant to s 18(4) of the Sentencing Act 1991 I declare that the period of 808 days, excluding today 13 April 2011, be reckoned as already served under the sentence I have ordered.
(e) I cause and direct that the fact that I have made this declaration and its details be noted in the records of the Court.
I propose to publish this judgment. I will include as footnotes case citations and other references.
Remove the prisoner.
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