R v McKnight
[2017] VSC 782
•22 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE & GEELONG
CRIMINAL DIVISION
S CR 2017 0022
Between:
| THE QUEEN | |
| -and- | |
| STUART MATTHEW McKNIGHT | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September & 8 December 2017 | |
DATE OF SENTENCE: | 22 December 2017 | |
CASE MAY BE CITED AS: | R v McKnight | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 782 | First revision, 10 January 2018: paras [3], [5], [13], [33], [35], [55] & [95] |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Arson – Accused (aged 45) mistakenly perceived a sexual advance while helping his neighbour (aged 79) and then bashed him in his own home – Accused then burned down house with neighbour (believed dead) still inside – Very serious examples of manslaughter and arson – Commenced as murder trial but jury discharged and new indictment filed over – Pleas of guilty – Limited remorse – Depressing criminal history – Only fair prospects of rehabilitation – Sentence of eleven years’ imprisonment for manslaughter, five years’ imprisonment for arson – After cumulation, total effective sentence of thirteen years’ imprisonment with non-parole period of ten years – But for pleas of guilty, sentence of sixteen years’ imprisonment with non-parole period of thirteen years – Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr N. Papas QC with Ms A. Moran | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S. Gardner with Ms C. Hollingworth | Stary Norton Halphen |
HIS HONOUR:
Overview and summary of facts[1]
[1]The following summary is a precis of the contents of the Summary of Prosecution Opening upon Plea (dated 7 September 2017) (Exhibit 1), as supplemented by the evidence received and the information provided by counsel on the plea. In this case, I think it is unnecessary to set out the entire contents of the Summary of Prosecution Opening upon Plea.
On the evening of Thursday 19 May 2016, Stuart Matthew McKnight, who was aged 45, went across the street to the home of his neighbour Graham Howard Stevenson, who was 79. Both men lived in Bunganowee Drive, Clifton Springs, near Geelong.
Mr McKnight, who had been unemployed for some time, lived with his parents. He had separated from his wife and four daughters. Mr Stevenson was a retired engineer and lived alone. His wife had died in 1991 and his four sons had all grown up and lived elsewhere. The two men were friendly and had known each other since 2008, when both moved into the area. Mr McKnight had performed odd jobs for Mr Stevenson.
Back to the evening in question. In the course of helping Mr Stevenson fix a broken pantry door, Mr McKnight, who was intoxicated, wrongly perceived what was in fact only incidental physical contact by his neighbour as an unwanted sexual advance. Mr McKnight’s immediate response was to punch Mr Stevenson in the nose, causing it to break. Mr Stevenson tried to defend himself by picking up a carving fork from the kitchen bench. The two men then grappled, during which Mr McKnight broke free and assaulted Mr Stevenson further, including with a piece of wood. All of this caused quite serious injuries to Mr Stevenson. At some point, Mr McKnight also turned the fork against Mr Stevenson and impaled it into his chest.
Believing that he had killed Mr Stevenson, Mr McKnight panicked and cravenly sought to cover up his crime by burning down the house. He took a fuel can from Mr Stevenson’s shed, splashed the contents about the house (although not on Mr Stevenson), ignited it and then headed back to his own home.
Neighbours noticed the fire and called emergency services. When the fire brigade arrived, the house was fully ablaze. Despite the fire and smoke, firefighters were able to find Mr Stevenson. The fork had been left impaled in his chest. He was in a very bad way, but still alive. A firefighter described him as appearing to have been “beaten up”.
Mr McKnight had returned to the scene a little earlier. He was carrying on in an odd and over-melodramatic fashion. For example, he feigned an attempt to get into the burning house to save Mr Stevenson. He exclaimed that Mr Stevenson was a paedophile or a sex offender and suggested that he was suicidal (none of which is true). When asked by a firefighter what he was doing at Mr Stevenson’s house earlier, Mr McKnight said he was “on the computer and picking flowers from the garden”. He opened the door of the ambulance while paramedics were treating Mr Stevenson, and had to be told, more than once, not to disturb them. He had blood on his shoes and was evasive when police inquired as to how that may have occurred. His behaviour, remarks and appearance were such that the finger of suspicion was pointed at him almost immediately. He was arrested by police. When removed from the vehicle at the police station later, he smelled of petrol.
Mr Stevenson was taken away by ambulance and ultimately to the Alfred Hospital. He had suffered multiple serious head and facial injuries, a puncture wound to his chest, carbon monoxide poisoning, and full thickness burns to fifteen percent of his body. He was placed on life support, which was withdrawn at 1:00 p.m. on Sunday 22 May 2016. Sadly, he died shortly thereafter.
A post mortem examination revealed that the cause of death was blunt force trauma to the head in combination with the effects of fire.
The fire was ultimately extinguished, but the house was effectively destroyed.
When interviewed formally by police in the early hours of the next morning, Mr McKnight admitted that he had been at Mr Stevenson’s home earlier in the day but he denied being there again until the house was ablaze. In a subsequent interview later the same day, he added to his earlier version. He said, amongst other things, that Mr Stevenson told him that he had fallen into his pantry door and requested that he come over; that he attended and helped Mr Stevenson remove the pantry door from the house; that he then left but later smelled something and heard someone yell out about a fire; and that he went straight over to Mr Stevenson’s house and went inside but could not see anything, so he left.
Examination of the house revealed that flammable liquid had been spread about various locations and used to start the fire. Flammable liquid was also detected on Mr McKnight’s clothes and shoes. DNA analysis indicated extremely strong support for the proposition that blood on Mr McKnight’s left shoe was that of Mr Stevenson. DNA analysis of a piece of wood also indicated extremely strong support for the view that Mr Stevenson’s blood was present. Fingernail scrapings taken from Mr Stevenson, upon DNA analysis, indicated very strong support for the proposition that Mr McKnight was a contributor to that DNA profile. However, Mr McKnight was excluded as a contributor to a mixed DNA profile found on the handle of the carving fork.
Mr McKnight was charged with murder and arson, and was ultimately committed for trial on those charges in this Court.
On 28 August 2017, Mr McKnight pleaded not guilty to those charges before a jury and me sitting in this Court at Geelong. A substantial amount of evidence was led at trial. However, following a break in proceedings to consider the potential discharge of the jury for reasons it is unnecessary to rehearse, and in light of arguable weaknesses in the evidence given by an eye-witness who was to be relied on as establishing that Mr McKnight had been seen coming from the blazing house soon after the fire started, counsel entered into negotiations as to a potential settlement of the matter. The case at trial against Mr McKnight had been a circumstantial one, with the Director unable to say exactly what had transpired inside the home of Mr Stevenson leading to his death. After an assessment of the evidence as it had fallen thus far in the trial, the Director accepted that he could no longer exclude the reasonable possibility that, instead of acting with murderous intent, Mr McKnight may have consciously, voluntarily and deliberately committed an unlawful and dangerous act that caused Mr Stevenson’s death.[2]
[2]While, as I have noted already, the medical evidence was to the effect that the cause of death was blunt force trauma to the head in combination with the effects of fire, as I understood it, the matter proceeded on the basis that the blunt force trauma caused by the assault alone was sufficient to cause death.
On 5 September 2017, the parties advised that the matter had settled as pleas of guilty to manslaughter and arson. The jury were advised accordingly and were discharged without verdict. A fresh indictment was filed charging manslaughter and arson. Mr McKnight pleaded guilty to both charges. The Director and Mr McKnight also accepted as accurate, for the purposes of the plea, the foregoing summary of the events that led to Mr Stevenson’s death.
Mr McKnight is now to be sentenced for those offences. There is no dispute that he must receive terms of imprisonment. The ultimate issue that I must determine concerns the length of those prison sentences and the associated non-parole period.
Before passing sentence, I shall also summarize the victim impact statements; assess the nature and gravity of the offending; outline the factors in mitigation and various sentencing purposes and principles; and then deal with an ancillary order for disposal of items connected with the offence.
Victim impact statements
So, first, to the victim impact statements.
Five such statements were made – one each by Mr Stevenson’s sons Anthony, Andrew and Craig Stevenson, and his daughters-in-law Aida and Michelle Stevenson.[3] They were read aloud to the Court by Mr Papas QC, who appeared with Ms Moran on the plea for the Director.
[3]See Exhibits 7-11.
The statements reveal the terrible loss and sadness that Mr Stevenson’s family feel as a result of his unlawful killing.
Anthony Stevenson feels numb. His last image of his father is one of blood, bruising, swelling and medical tubes. He wonders whether his father was scared. He feels cheated.
Andrew Stevenson, who is a surgeon, found that all of his training had not prepared him for the horror that faced him and his family when they saw his father, who was unrecognizable, dying in hospital. He has disturbing dreams. He is angry at his father’s killer. He used to ring his dad every Friday evening as he drove from work across a bridge in Brisbane, which his dad could always picture, but that moment of contact is now gone forever.
Craig Stevenson was also numb with grief when he was told of what had happened. Grief then turned to fury at his father’s killer. He has not had a full night’s sleep since his father’s death. He misses him terribly.
Aida Stevenson (who is married to Andrew) cannot imagine that her recurring thoughts of what her father-in-law experienced will ever go away. She held his hand as he took his last breath, which is another painful memory that will not leave her. She explains that sleepless nights, nightmares, tears, frustration, anger and depression have all been a part of her family’s lives since the killing.
Finally, Michelle Stevenson (who is married to Craig) explains that her family is also haunted by these events. It is very difficult to think of only good memories when they are so grief-stricken and angry. She, like the others in her family, is also concerned about the effect that these events will have on Mr Stevenson’s grandchildren.
These victim impact statements are powerful, eloquent and moving documents. In so far as it is permissible to do so, I have had regard to their contents in considering sentence, particularly on the manslaughter.
Nature and gravity of offences and offender’s culpability and degree of responsibility
I turn now to an assessment of the nature and gravity of the offences, and of Mr McKnight’s culpability and degree of responsibility.
Manslaughter
Manslaughter is a common law offence the maximum penalty for which is set by statute at twenty years’ imprisonment.[4]
[4]See s 5 of the Crimes Act 1958 (Vic).
The offence is serious, by definition. The life of a father and grandfather has been lost as a result of criminally dangerous behaviour. Further, and as the victim impact statements show, the grief caused to his family is immeasurable.
The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, while Mr McKnight did not have an intention to kill or cause really serious injury (or recklessness thereto) when he bashed Mr Stevenson, for otherwise it would be murder, his plea of guilty accepts that his actions were unlawful and dangerous – dangerous in the sense that a reasonable person in his position would have realised that, in delivering the blows he struck, Mr Stevenson was being exposed to an appreciable risk of serious injury.
While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung down. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim, whereas such an intention usually (but not always) will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts.[5]
[5]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at 92[75]).
That there can be no inflexible rule is illustrated by the circumstances of this case. On the one hand, the offence had some very serious features, including the following: First, Mr Stevenson was bashed mercilessly for no reason other than a drunken man’s mistaken perception about the intent of minor physical contact. Further, he was punched and then struck with a piece of wood, which caused serious injuries. It is not possible to say how many times he was struck, but the injuries are serious and numerous enough to suggest that the bashing was brutal. While he did not have an intention to cause really serious injury, it is plain from those injuries that Mr McKnight intended at least some harm to Mr Stevenson. That was extremely dangerous and culpable behaviour carrying a very high level of culpability.
Secondly, the offence occurred in Mr Stevenson’s own home, where he was entitled to feel safe.
Thirdly, while death was unexpected, Mr McKnight seriously assaulted a man who was 34 years his elder – indeed, old enough to be his father. I think that that is a cowardly thing to do. That said, I recognize that Mr Stevenson does not appear to have been frail.
Fourthly, Mr McKnight’s subsequent behaviour, some of which forms part of the arson offence and must not be double-counted, does him no credit. While I accept that he may have acted out of panic, and while I accept that he may have believed Mr Stevenson was already dead, it was still a callous and cruel thing to attempt to cover up his crime by burning not only Mr Stevenson’s house, but also his body. Further, his putrid and false allegations that Mr Stevenson was a paedophile and had spoken of killing himself were just disgraceful.
On the other hand, there are features of the manslaughter which tend in the other direction. First, as Mr Gardner, who appeared with Ms Hollingworth for Mr McKnight, pointed out, the offence was spontaneous and involved no planning whatsoever.
Secondly, Mr McKnight’s presence at the house was well-intentioned and as a result of an invitation – he was there to help his neighbour. He was not an unwanted intruder.
Thirdly, he did not bring the piece of wood he used as a weapon to the confrontation, but rather picked it up in the course of the assault.
Fourthly, it seems that the bashing, while brutal, was only short-lived.
Finally, unlike some other instances of manslaughter, the offence was not committed in company.
Mr Gardner submitted that the offence falls into the “mid-range of gravity” of manslaughter. Mr Papas submitted that it is a “serious example at the upper end” of manslaughter.
In so far as labels like those matter, in my view, this is a very serious example of manslaughter, well above the mid-range of gravity. A 79-year-old man was beaten seriously and to death in his own home by a much younger man over the merest of misunderstandings. While Mr McKnight’s intoxication and misperception might explain his being affronted, and while I take into account the matters I have just mentioned, including the spontaneous nature of the offence, there is no escaping the fact that this was an extreme and brutal response with tragic consequences and which involved a very high level of culpability.
Arson
Arson is a statutory offence which carries a maximum penalty of fifteen years’ imprisonment.[6]
[6]See ss 197(1), (6) and (7) of the Crimes Act 1958 (Vic).
That a person’s home has been deliberately destroyed by fire makes this a very serious example of arson. Further, an offence like this also exposes neighbouring properties to the risk of fire damage and firefighters to the risks associated with fighting a fire.
On the other hand, I accept Mr Gardner’s submission that the arson was spontaneous and unsophisticated. Further, it was not motivated by any desire to cause loss but reflected panic.
Again, I note that, having taken into account as an aggravating feature of the manslaughter that the house and body were burnt in an attempt to cover up that crime, I shall be careful not to count the same aggravating feature when assessing the gravity of the arson.
Nevertheless, I still regard this as a very serious example of arson.
Mitigating factors
I turn now to the factors in mitigation on which Mr McKnight is entitled to rely.
Background
Before doing so, I shall set out in some detail his background as outlined by Mr Gardner on the plea.
Mr McKnight was born on 15 December 1970. He has therefore just turned 47.
His father was an aircraft mechanic. Sadly, he died in April this year following complications resulting from a stroke. His mother, who is still alive, worked selling newspaper subscriptions. He also has a brother who is married with children.
Mr McKnight grew up in Corio and completed Year 11 at Corio Secondary College. He left school to complete an apprenticeship in carpentry.
He had many jobs as a child and showed a keen work ethic as an adult. He completed his apprenticeship and then worked as a subcontractor in carpentry. Eventually, he started his own business in the building industry.
Mr McKnight and his partner had four daughters, who range in age from twelve to twenty.
Unfortunately, Mr McKnight suffered serious spinal troubles which in turn led to heavy drinking and significant problems within his relationship. Ultimately, his business failed, he separated from his partner and children and went to live with his parents. He has worked only intermittently ever since.
Mr McKnight has a criminal history that makes for depressing reading. From his mid-twenties, he has incurred convictions for numerous assaults of varying degrees of seriousness, breaching intervention orders and driving offences. All matters have been dealt with in the Magistrates’ Court. The penalties have ranged from fines to community corrections orders to suspended prison sentences to intensive correction orders to relatively short immediate prison sentences. It is plain that he has had a serious and ongoing problem with drinking, anger management and violence within his relationship with his partner.
His health is not the best either. He is overweight, has diabetes (Type 2), has a compressed vertebrae and suffered a heart attack in 2011 (which required a stent).
Mr McKnight has had a serious drinking problem for many years. He has had two admissions to a detoxification unit and was abstinent for a period of two years following a car accident. But it appears that his insight into his problem is not as clear as it might be. He was drinking daily at the time of the offences. He was, in a sense, self-medicating over the sadness he felt at not being able to see his children very often.
He also suffers from depression, which was diagnosed after the breakup of his relationship with his partner. He was on an anti-depressant medication at the time of the offending.
On a more positive note, Mr McKnight has used his time in prison wisely and productively. He has a responsible position as a head billet.
As for the future, upon his eventual release, he would like to pursue work in the mechanical field. He also wishes to rekindle his relationship with his children.
Having set out that background, I turn now to the mitigating factors.
Plea of guilty
First, in my view, the most important mitigating factor is that Mr McKnight pleaded guilty to both manslaughter and arson. While those pleas came late, they are still significant in several ways.
First, the pleas of guilty have obviated the need to continue with the trial or commence a retrial and thereby have spared (at least some of) the witnesses the ordeal of reliving these events and being cross-examined about them.
Secondly, given the potential doubts about the eye-witness evidence, particularly when coupled with his being excluded as a contributor to the mixed DNA profile found on the handle of the carving fork, it is plain that, as things developed at trial, Mr McKnight had an arguable defence to murder, manslaughter and arson. Thus, while his plea of guilty to manslaughter has avoided the risk of a conviction for murder, he has also foregone the chance of an outright acquittal of homicide and of arson, which, in my view, adds more weight to the pleas of guilty.
Finally, the guilty pleas involve at least some acceptance by Mr McKnight of moral and legal responsibility for his actions and a willingness to facilitate the course of justice.
Remorse
The second factor in mitigation is that I am satisfied that Mr McKnight has some remorse for his crimes, albeit I think that remorse is limited. There are four reasons for that conclusion.
First, in the circumstances of this case, his pleas of guilty indicate some remorse. As I have said, he could have chosen to run a trial in the hope of an outright acquittal. But, in pleading guilty and foregoing that chance, I think he has shown at least some remorse.
Secondly, while his attempt to hide his responsibility for the killing by setting fire to the house and lying about Mr Stevenson’s intentions reflect a combination of panic and lack of remorse at that time, I think it is significant not only that he has accepted responsibility for his behaviour by pleading guilty but also that he has sought to apologize publicly for his actions. In particular, without objection, I received as an exhibit on the plea Mr McKnight’s letter of apology, dated 4 September 2017. It reads:
Graham was a friend of mine. I never intended for this to have occurred. I am sorry. I deeply sympathize with the family.
I assume his reference to not intending “this” to occur is a reference to the killing of Mr Stevenson, which is consistent with his pleas of not guilty to murder but guilty to manslaughter. It cannot be a reference to the arson, for it is plain that he meant to burn the house. In any event, he at least has done the decent thing by apologizing to Mr Stevenson’s family, whatever that may be worth to them.
Thirdly, I accept that Mr McKnight accepts responsibility for the heartache he has put his parents through. His father has since died, but his mother still lives in the same house opposite Mr Stevenson’s, which must be difficult for her.
Finally, however, I am not satisfied that Mr McKnight’s remorse is profound. Rather, on the materials before me, I can find only a limited level of remorse in his favour.
Prospects of rehabilitation
Thirdly, I am satisfied that Mr McKnight has some prospects of rehabilitation. I do not find that those prospects are good or excellent, but just fair. There are several reasons for that conclusion.
First, his pleas of guilty and limited remorse suggest at least some positive prospects of rehabilitation.
Secondly, that he enjoys the ongoing support of some members of his family, including his mother, an aunt and one of his daughters, gives me hope that he will have the encouragement, support and motivation to rehabilitate himself over the longer term.
Thirdly, Mr McKnight has worked in responsible positions in the past and, I believe, could obtain work again in the future. As I noted earlier, he is working in prison and hopes to work in mechanics upon his eventual release from prison.
Fourthly, he has been abstinent from alcohol for an extended period in the past. Despite having limited insight, he has also shown some willingness at least to treat his problem. There is some prospect that, with counselling and a long period of forced abstinence in prison, he will have the wherewithal to abstain from or limit his drinking in the future.
Fifthly, however, as I indicated earlier, it is also clear that he has had serious difficulties with drinking, anger management and violence for many years now. While his prior convictions are not as grave or as numerous as many seen in this Court, they are still troubling in their nature, context and frequency. He has twice served prison sentences, although both were relatively short. On the other hand, his last prior conviction for actual violence was incurred over six years ago. His last convictions for any offences were for breaching intervention orders in 2013. He completed the community correction order imposed as a result of those convictions.
It is for those reasons that, on balance, I assess Mr McKnight’s prospects of rehabilitation as only fair. He simply has not shown the sustained periods of good behaviour that suggest he has better prospects than that. On the other hand, the length of the sentence I am about to impose will give him plenty of time to mend his ways.
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in respect of both offences. The community should understand that behaviour of the type engaged in by Mr McKnight is denounced by the courts and will result in substantial terms of imprisonment that reflect that a person’s life has been taken by violent, unlawful and dangerous behaviour, that the lives of Mr Stevenson’s loved ones have been marred forever in consequence, and that a person’s home was deliberately destroyed by fire.
Specific deterrence
While his pleas of guilty, limited remorse and fair prospects of rehabilitation reduce the need for specific deterrence, I think that Mr McKnight’s criminal history makes it necessary to the fix a sentence that includes a component that is designed in part to deter him from further offending.
Rehabilitation and protection of the community
Further, despite his only fair prospects of rehabilitation, the sentencing purpose of rehabilitation remains an important consideration. Such prospects as he has must be fostered in both his and in the community’s long-term interests, because he will be returning to the community ultimately.
However, I do not consider that there is any need to add a separate component in sentencing for protection of the community. Despite the disturbing nature of the crime and his prior convictions, I still consider it unlikely that Mr McKnight would act in such an unlawful, violent and dangerous way again. The sentence that results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community.
As I have implied already, I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. As I say, Mr McKnight will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are good.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, 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”. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentences in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter and arson.
Sentencing statistics show that, for the period from 2011-12 to 2015-16, prison sentences for manslaughter ranged from about two to twelve years’ imprisonment; that the average (or mean) sentence ranged from about six years and eleven months’ imprisonment in 2013-14 to eight years and eleven months’ imprisonment in 2014-15; and that the median sentence was eight years’ imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to nine years; the median non-parole period was five years and six months; and the modal non-parole period was five to less than six years.[7]
[7]Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 199, April 2017, pp 3-5.
During the same period, prison sentences for arson ranged from three months to four years and two months; the average (or mean) sentence ranged from one year and nine months’ imprisonment in 2015-16 to two years and seven months’ imprisonment in 2011-12 and 2013-14; and the median sentence was two-and-a-half years’ imprisonment.[8]
[8]Sentencing Advisory Council, Sentencing Snapshot: Arson, No 201, April 2017, p 3.
Those statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. I have considered several cases of manslaughter and arson in recent years. It is fair to say that the sentences imposed have varied substantially. It is possible to make more nuanced comparisons between the present case and other particular cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. Certainly, none of those I considered was quite the same as the present case. And, in any event, sentences are not precedents to be applied or distinguished.
Nevertheless, I have found the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter and arson, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.
In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr McKnight’s particular offences of manslaughter and arson in view of his particular array of personal circumstances.
Cumulation, totality and avoidance of double punishment
Mr Papas submitted that, subject to totality, proportionality and the need to avoid double punishment, there should be some cumulation of the sentence for arson upon the sentence for manslaughter. I agree. I understood Mr Gardner to accept that submission in any event.
Further, as I have alluded to already, both counsel submitted that, when considering the gravity of the two offences, the individual sentences to be imposed and the level of cumulation that might be ordered between the sentences, I must be careful to avoid double (or multiple) punishment by counting more than once any feature that might be thought to aggravate both offences in common. I agree. Thus, while I regard the manslaughter as aggravated by the attempt to cover up that crime by burning the house (and all that was in it, including the body), I have not counted that aggravating motivation again when considering the arson.[9] If I have not already made this clear, however, I should add that, even when that motivation is excluded from an assessment of the gravity of the offence, I still think this is a very serious example of arson.
[9]I note that Hollingworth J had to deal with a similar consideration in DPP v O’Neill [2015] VSC 25 at [40]-[45]. See also DPP v O’Neill [2015] VSCA 325 at [113]-[115] (per Warren CJ, Redlich and Kaye JJA).
Disposal order
Before formally announcing sentence, I note that Mr Papas applied for a disposal order in respect of various items. The application was not opposed. In those circumstances, I shall make the order sought.
Sentence
I turn now to sentence.
Mr McKnight, please stand.
Balancing all factors as best I can, I sentence as follows:
On Charge 1, the manslaughter of Mr Stevenson, Mr McKnight is convicted and sentenced to eleven years’ imprisonment.
On Charge 2, arson of Mr Stevenson’s house, Mr McKnight is convicted and sentenced to five years’ imprisonment.
I direct that two years of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1.
That makes a total effective sentence of thirteen years’ imprisonment.
I fix a non-parole period of ten years.
Pursuant to s 18 of the Sentencing Act, I declare that 582 days of pre-sentence detention be reckoned as served under this sentence.
Absent Mr McKnight’s pleas of guilty, it is likely that I would have found he had no remorse at all and that his prospects of rehabilitation were poor. Thus, while it is always a difficult thing to estimate, I declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr McKnight’s pleas of guilty, I would have imposed a total effective sentence in the order of sixteen years’ imprisonment with non-parole period of thirteen years.
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