R v Pollock
[2004] VSC 189
•19 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1403 of 2004
| THE QUEEN |
| v |
| LUKE MATTHEW POLLOCK |
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JUDGE: | CHIEF JUSTICE WARREN | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 19 May 2004 | |
CASE MAY BE CITED AS: | R v Pollock | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 189 | |
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CRIMINAL LAW – Manslaughter – Sentence – Youth - Prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Defendant | Mr W.M.Toohey | Grubissa White |
HER HONOUR:
Luke Matthew Pollock, you have pleaded guilty to the crime of manslaughter upon presentment that at Frankston on 3 March 2003 you killed Wayne Timothy Schloss. You were 20 at the time; you are now 21.You were born on 8 August 1982. It is my task to impose the sentence of this court upon you.
Wayne Timothy Schloss died as a result of a stab injury to the left side of the chest that entered the heart made by a knife or other similar type of sharp implement. He also suffered other non-fatal stab wounds. Tests detected that the deceased had drugs present in his system at the time. The stabbing occurred during an incident involving you and the deceased at Frankston Shopping Centre on 3 March 2003.
The preceding events of the day are relevant. You woke early on the day and were picked up to go to work at about 8.00 a.m. You had a job as a plasterer. At the time you were living with your de facto partner and your baby son. You finished work at some point later in the day and consumed some beer. You later went to the Frankston Shopping Centre near the railway station. You went to a local cafe at about 5 o'clock known as the "Choo Choo Lounge". At that stage, you were on your own but saw some people at the cafe whom you knew.
Wayne Timothy Schloss was also at the cafe with his girlfriend Tracey Abdullah. You and Schloss had known each other for some time. At the time, you and Schloss were seated at separate tables at the cafe. There are some differences as to how the main incident started but at one point Schloss threw a chair, in all likelihood at you, and an argument broke out, probably over a mobile telephone stolen earlier in the day by Schloss or Abdullah or both. A challenge was made to a fight and you and Schloss later ended up in a laneway in the vicinity of the rear of the cafe.
The events that occurred thereafter are confused because of conflicting descriptions given by witnesses and by you later to the police. The events in the laneway resulted in the death of Wayne Timothy Schloss.
Prior to the commencement of the trial, evidence was given by two witnesses, Abdullah and, also, John Hoang Ngo. Abdullah was affected by drugs at the time of the incident. Her recall of events was mixed up, inconsistent and confused. She was clearly traumatized by the events she witnessed in the laneway. It seemed she saw the stabbing of Schloss by you but her description of the specific encounter was unreliable.
Abdullah was found later by the police to have a screwdriver in her possession and it was suggested on your behalf that she picked it up or took it from Schloss after the stabbing when Schloss was lying on the ground.
Ngo described events differently and with more certainty than Abdullah. Ngo said that after an argument or altercation between you and Schloss in the cafe, he, Ngo, later left to go to a supermarket. He said he walked past the laneway and saw you and Schloss arguing there in the laneway. He described you and the deceased as being towards the end of the laneway. It was a laneway that opened out to a roadway or street at both ends. Ngo also said that he saw Abdullah with you and Schloss. He described an argument between you and Schloss with Abdullah joining in. Ngo said he spoke to Abdullah and the next thing he saw was Schloss staggering backwards. Ngo said he saw the deceased drop a screwdriver or something like that, hold his chest, and blood appeared. He did not recall seeing you do anything except that your fists were raised. Ngo described seeing Schloss stagger backwards and then fall to the ground. Schloss died later at the scene.
You left the scene, later returned and then left and went home. You slept that night with the knife in your underwear. The police later attended your home, found the knife and took you to the police station where you underwent a formal record of interview. During your interview with the police, you were not entirely truthful.
You were subsequently charged with murder and presented for trial. After preliminary hearings before the commencement of the trial, you were re-presented by the Crown on the charge of manslaughter. You pleaded guilty at that stage. I accept that you pleaded guilty at the earliest opportunity available to you to that charge. In so doing, you saved the community the cost and inconvenience of the trial and saved the family of Wayne Timothy Schloss the grief and anguish of a full trial. Your plea of guilty on the re-presentment has also reflected your remorse for your actions.
The description of the events in the laneway by Abdullah and Ngo are in many ways unhelpful. As best I can, I find that you stabbed Wayne Timothy Schloss in the laneway and unlawfully killed him. Abdullah and Ngo were both unsatisfactory and unreliable in many respects of their evidence before me. It was suggested on your behalf that the deceased had a weapon and that I should accept the description of events by Ngo in that regard. I find both Abdullah and Ngo unsatisfactory in their evidence in that regard and I cannot be satisfied that the deceased had a weapon. That said, I cannot be satisfied to the contrary. I am satisfied that you and the deceased had an argument that a fight broke out and that you stabbed and killed him. I find accordingly.
Before I move to your present circumstances, it is appropriate that I inform you of what you have done. At the time of his death, Wayne Timothy Schloss was a young man. On 3 March 2003 the life of Wayne Timothy Schloss was lost as a result of a single stab wound inflicted by you upon him. The Crown tendered the victim impact statements of Rhonda Schloss, the mother of Wayne Timothy Schloss, his stepfather, Mark Schloss, and, also, the younger sister of the deceased, Jessica Schloss. I have read the documents and attachments including psychological reports, indeed, more than once. It is apparent that the family of the deceased have suffered dreadfully since the incident. They described in painful detail the anguish and grief suffered by the sudden death of their family member. It is apparent to me that the lives of the members of the family of Wayne Timothy Schloss have been afflicted by their tragic loss and that they will continue to be affected.
I turn to your circumstances. You are an only child who has had the benefit of a caring mother throughout your lifetime. Your parents separated when you were about 2 years old and you remained in the primary care of your mother. You had regular contact with your father until you were about 12 years old, at which time your father moved interstate and remarried. After that move, contact with your father became intermittent.
You left school during Year 8 and began associating with older youths who had an unfortunate influence over you. At about 15 you gained a job as a plasterer but lost that position when you fell into trouble and were eventually sentenced to a term at the Melbourne Juvenile Justice Centre. You have an unfortunate criminal history that is admitted. It commenced in 1997 when you were only 14. Over a short time you were found guilty of multiple offences including theft, burglary, robbery, assault, possession of cannabis, trafficking and using heroin and a range of other offences. These led to custodial sentences culminating in your conviction in June 2002 of a number of offences for which you were sentenced to a term of imprisonment for a period of seven months. Your prior criminal history is apparently connected to a history of drug and alcohol abuse from the time you were about 14 or 15 years old.
Much of your personal history is contained in the report of Ms Carla Lechner, forensic psychologist. She has described you as having a longstanding substance abuse and dependency problem. She considers you would benefit from ongoing counselling and support. There is also a suggestion that you suffered episodic depression for a number of years. The diagnosis of that condition is uncertain but your mother gave evidence in the course of the plea, that I accept, that you rejected the prospect of taking medication because of the stigma attached to it.
Ms Lechner has assessed you as having the capacity for insight and reflection. She considers that vocational support is critical to you and that you are very dependent on your ability to provide support for your family. At the time of the incident you were living with your girlfriend and your baby son. Your partner gave evidence in the course of the plea, and was an impressive young woman who is clearly very devoted to you. She gave evidence that she intends to wait for you to be released from custody and, importantly, intends to support you as best she can during your time in custody. Similar love and support was demonstrated by your mother in the course of the evidence that she gave in the plea.
I was informed that your long term plan is to move away from Victoria as soon as you are able and to start afresh in another State, you expect with the support of your father. Evidence was not given at the plea by your father as he was unavailable. However, I accept on the basis of a letter he provided to the court that he will do his best on your behalf.
I was informed that you have participated voluntarily in various programs provided at Port Phillip Prison. That is a desirable course and you are to be encouraged in that direction, particularly in light of the observations and analysis of Ms Lechner.
Ms Lechner has assessed you as understanding the seriousness of your actions and your recognition that you are responsible for the death of Wayne Timothy Schloss. I accept that you are remorseful for your actions and recognize that those actions ended the life of a young man not much older than yourself.
On the basis of the evidence during the plea, and the assessment of Ms Lechner, I am satisfied that you have a genuine desire to rehabilitate yourself. You have an important factor in your favour and that is your supporting family. I am satisfied on the basis of these matters that you have reasonable prospects of rehabilitation. Indeed, your prospects of rehabilitation are largely based on two significant factors: your youth and your desire to move on from the dreadful thing you have done. In my view, therefore, it is highly desirable that your sentence support your rehabilitation by facilitating supervision by parole authorities for a longer period than would ordinarily be the case.
Nonetheless, the charge of manslaughter is an extremely serious offence. It carries a maximum penalty of 20 years. The pivotal fact that led to the stabbing of Wayne Timothy Schloss was your possession and use of a knife. Repeatedly the young men of our community go out and mix among others armed with knives. Repeatedly their action results in tragedy such as this, the death of a young man and the waste of a young life. This Court has observed many times that there is a disturbing rise in the number of young men carrying knives and using them in situations of conflict. The carrying of a knife so often leads to circumstances such as this. The sentence I impose on you must act as a general deterrent. Allowance must also be made for special deterrence in your case, particularly given your history. However, I am required to allocate significant consideration to your youth and your prospects for rehabilitation.
Weighing all these matters up, I am satisfied that you should serve a custodial sentence for causing the death of Wayne Timothy Schloss.
Luke Matthew Pollock, I sentence you to a maximum term of seven years' imprisonment. I direct that you serve a non-parole period of four years and six months. I declare a pre-detention period of 192 days under the Sentencing Act 1991 and direct that a notation to that effect be made on the Court file. I observe that I have previously made orders by consent under s.464ZFB of the Crimes Act 1958. I direct that a copy of these reasons and the report of Ms Lechner be forwarded to the Adult Parole Board forthwith.
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