R v Pp
[2002] VSC 578
•23 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1489 of 2001
| THE QUEEN |
| v |
| PP |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19, 20, 21, 22, 25, 26, 27, 29 November, 2, 3, 4, 11 December 2002 | |
DATE OF SENTENCE: | 23 December 2002 | |
CASE MAY BE CITED AS: | R v PP | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 578 | |
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Criminal law – sentencing – manslaughter – young person involved in melee – stabbing – sentence of six years with non-parole period of four years.
Children and Young Persons Act 1989, ss. 137, 138, 139, 244 and 276; Sentencing Act ss. 3, 5(4) and 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chris Ryan | Solicitor for Public Prosecutions |
| For the Accused | Mr Brian Bourke with Ms Amanda Fox | Haines & Polities |
HIS HONOUR:
PP, on 18 November 2002 you were arraigned on a charge that you did at Kew on 24 August 2001 murder DH, and after a trial which lasted 11 days the jury found you not guilty of his murder but guilty of his manslaughter. It is now my task to sentence you.
The facts
The circumstances of your offence were examined at length during the course of your trial. It is necessary, however, to restate some of them for the purposes of sentence.
You were born of 15 September 1985 and at the time of your offence you were still only 15 years of age and a student at [a] Secondary School. DH was born on 8 April 1985 and at the time of his death he was just 16 years of age and a student at [another] Secondary School. On 24 August 2001 you stabbed DH twice in the back with a filleting knife and thereby caused his death. You did so in the course of a melee which arose when DH and three other boys sought you out to fight you.
These events appear to have had their origins in a Carey Grammar School year 11 “after party” held on 17 August 2001. The party was conducted in a warehouse somewhere in the Docklands, between about midnight on 17 August 2001 and 4.00 am the following morning. The price of admission was $35.00 per head and for that the organisers provided a dance floor, recorded music and unlimited supplies of a limited range of alcoholic drinks. There were approximately 400 young people present at the party, including one by the name of Emlin Olaver, a student at Trinity Grammar School. You went to the party with five or so of your friends having purchased your tickets in advance.
Somewhere towards 4.00 am a scuffle broke out on the dance floor when Olaver stood on the foot of one of your friends, Andrew Filippopoulos, and punches began to be thrown. By all accounts you were not in any way responsible for the trouble and indeed you did your best to break it up when it started. But somehow Olaver got the idea that you were responsible for what had occurred and he resolved that he would get even with you for the wrong he perceived you to have done him.
In the week which followed the after party, Olaver made arrangements with a number of his friends to join him at the Kew Junction Square shopping centre on the following Friday night and there fight you. Amongst the friends with whom he made those arrangements were Mark McGuire, Joshua Czarnecki, Adrian Jacovac and DH. Somehow Olaver and his friends knew that you worked each Thursday and Friday evening in [a] shop located in the square. Their plan seems to have been to wait until you emerged after closing time at about 9.00 pm and then to assault you.
During that week you got warning from a friend close to Olaver that something unpleasant was planned. But despite efforts to contact Olaver, to assure him that you had done him no harm, you were unable to speak to him.
DH spent a large part of 24 August 2001 with his friend Adrian Jacovac. During the day both of them consumed a quantity of cannabis and a quantity of Serapax. At or about 6.00 pm they meet up with Mark McGuire and Joshua Czarnecki at the tram stop on Whitehorse Road, Balwyn, in order to travel to Kew. There were also a couple of girls, Caitlyn and Kara Smith, who were friends of DH.
Mark McGuire and Joshua Czarnecki spent the afternoon of 24 August 2001 together consuming between them the better part of a 30 can slab of full strength beer, and by the evening they were drunk. They took the remainder of the slab with them to the rendezvous with Adrian Jacovac and DH and the four of them and perhaps also the girls finished off what was left.
Before leaving on the tram to go to Kew, Caitlyn Smith endeavoured to purchase more alcohol from the Coles bottle department near to the Balwyn tram stop. But she was refused service as she was believed to be under age. When they got to Kew, Caitlyn Smith in company with Adrian Jacovac and DH made an attempt to purchase more alcohol at Leo’s Supermarket in the Junction square. But on that occasion they were refused service when they were suspected of attempted theft. An incident followed in which at least Smith and Jacovac publicly abused the shop manager in loud and vile terms. Finally, Caitlyn Smith managed to purchase a four pack of Cougar bourbon and Coke from the nearby Skinny Dog Hotel.
Between about 8.30 pm and 9.00 pm the six of them waited behind a paling fence at the edge of the square, drinking the Cougar cans. During that time they made or received at least one mobile telephone call to or from Olaver, who was then en route from Surrey Hills. They agreed with Olaver that they would wait for him and do nothing until he arrived. In the meantime they kept a conspicuous watch on you as you worked in [the] shop.
As you worked in [the] shop you saw the surveillance being maintained and it concerned you. You spoke to one of the other employees of the shop, and asked him to call the police if there were any trouble, and you later spoke to your brother SP when he arrived at the shop shortly before 9.00 pm to meet one of his friends. SP was not as concerned as you were. After taking a walk down past the paling fence area he reported to you that he thought there was nothing to worry about.
Not long after SP arrived, a friend of yours, Dion Filippopoulos, also arrived at [the] shop. He had come to wait for you to finish work, so that you might go out together for the evening. Another friend of yours, Dimi Pagonidis was on his way to the shop in his car to collect both of you and to drive you to your destination.
Close to 9.00 pm Mark McGuire, Joshua Czarnecki, Adrian Jacovac and DH grew tired of waiting for Emlin Olaver to arrive. They decided that they would fight you in Olaver’s absence and they left the cover of the paling fence and walked together across the square to where SP was standing with Dion Filippopoulos outside [the] shop. Mark McGuire and most probably Adrian Jacovac were each armed with a shopping trolley handle pole, concealed up their sleeves, and it is possible although not clear that one or both of Joshua Czarnecki and DH were similarly armed with poles.
Upon arriving in front of the shop, Adrian Jacovac entered the shop and demanded to know of you whether you knew of “P’s” whereabouts. In fact Jacovac was aware that you were the “P” whom they had come to fight. But you did not know that your identity had been ascertained and you replied that P was not there that night and that you did not know where he was. Jacovac did not disclose that he knew who you were and he returned to join his three friends who were standing talking to SP and Dion Filippopoulos just outside the shop.
Almost immediately, Mark McGuire struck SP across the head with one of the shopping trolley poles. SP lurched sideways, stunned by the blow, and as he flailed around, Dion Filippopoulos retaliated by pulling McGuire’s jacket over his head and raining blows upon him. The fight erupted between all six youths, with the four attackers delivering blows with the shopping trolley poles onto the heads of the two and the latter striking back with their fists and feet as best they could. As they did the fight moved from the foot path immediately outside the shop to the centre of the car park.
The owner of [the] shop attempted to stop the fight by standing near to the door of the shop and warning that he had called the police (although in fact he had not done so). And by all accounts the owner was to some extent successful in restoring calm, because the fight very soon began to quieten down. But before it had, you had become so agitated by what you had observed through the window of the shop, particularly the pole attack on your brother SP, that you seized up a filleting knife from the shop’s knife rack and, against the pleas of co-workers, you went running out to the square yelling words to the effect that they could not bash your brother.
You held the knife in your right hand with the handle downwards and the blade up along the inside of your arm. And you said in evidence that you did so in order that other shop employees would not see it. But the owner of the shop did see it and as you came near to where he stood outside the shop, he commanded you emphatically to put the knife away and to get back inside and to get on with work.
Initially, you responded to that command by turning and walking back in or towards the shop, but as you did so the fight seemed suddenly to reactivate. According to some witnesses, it did so when SP and Dion yelled: “come on and have a go”, across the car park to where the other four boys had retreated. According to other witnesses, it occurred just as Dimi Pagonidis arrived in his car and SP yelled to him that he had been poled. According to evidence given by some of the four boys, it began again as they walked back to the far side of the car park and SP and Dion and others began to run after them. But however it occurred, it was sufficient to cause you to turn again and run with knife in hand across to the far side of the square to join in the fray.
There is some uncertainty about what then happened. But aspects of it are clear. Mark McGuire and Joshua Czarnecki managed to get away free and were not concerned in the remainder of the fight. Adrian Jacovac was caught near to the far side of the square but, after deploying a wheelie bin to fend off SP and Dimi Pagonidis, who were then in pursuit of him, he managed to break free and get away. DH, alone, was not so lucky. You pursued DH and you caught him near to the paling fence at the far side of the square, and when you caught him you stabbed him, twice in the back, with the filleting knife from the shop.
DH died from one of the wounds which you thus inflicted. The blade entered his body to the left side of his back and penetrated upwards and from left to right. It severed the aorta, causing massive internal bleeding, the collapse of his lungs and the cessation of a sufficient blood flow to vital organs. In effect, DH bled to death almost immediately.
Sentencing considerations
Gleeson CJ (of New South Wales) once observed in R v Blacklidge[1] that it has long been recognised that the circumstances which may give rise to a conviction for manslaughter are 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. Of all crimes manslaughter throws up the greatest variety of circumstances affecting culpability. To similar effect, O’Bryan, AJA recently observed in R v Moore[2] that, because manslaughter covers such a wide range of circumstances, and includes both voluntary and involuntary acts of homicide, the range of penalty is very wide indeed.
[1]NSWCCA 12. 12. 95, BC9501665 at 4
[2][2002] VSCA 33 at [16]
The manslaughter of which you have been found guilty is a very serious crime[3]. You secreted a filleting knife – on any view a deadly weapon – along the inside of your arm, and you held it secreted so that it could not be observed, and then you ran the best part of 50 metres across a car park in order to catch DH and kill him.
[3]cf R v Hill [1996] 2 VR 496 at 501
It may be that a threat existed, and it may be that you feared for your own safety and for the safety of your brother, SP. But there is no evidence which would justify the use of a knife in the manner in which you used it. You did not have to meet aggression with aggression and, if you did, a knife was an altogether inappropriate and despicable weapon[4].
[4]R v Moore, ibid
Self defence, provocation and manslaughter by unlawful dangerous act were all left to the jury as possibilities open to be found. Plainly they rejected self defence, because they found you guilty of manslaughter. I think it is probable that they also rejected your evidence that you did not intend to kill DH or to inflict really serious physical injury on him. For my own part, I do not accept that you could twice stab DH in the back with a filleting knife and not intend to cause him grievous bodily harm.
According to high authority, however, while there is no general requirement to sentence you on the view of the facts most favourable to you, it is required that facts which tell against you be proved beyond reasonable doubt[5]. And I am not satisfied beyond reasonable doubt that the jury rejected your evidence as to intent. It is possible that they were persuaded by what you said, for I instructed them that they might be if they accepted you as a witness of truth. It is also possible that some members were persuaded by your evidence on that point and that some were not. Plainly, it would be wrong to sentence you on the basis of being guilty of intentional homicide if that were not the unanimous decision of the jury.
[5]R v Storey [1998] 1 VR 359 at 369; The Queen v Cheung [2001] HCA 67 at [14]
All that having been said, however, it remains that the starting point in the formulation of the penalty to be imposed upon you is that every case of manslaughter involves the felonious taking of human life[6]. To that may be added, in this case, that the life which you took was a young one. You took the life of a boy hardly older than you and, as the victim impact statements cry out, the result of your conduct has been to plunge his mother and father and sister into a mire of despair. The sentence to be imposed upon you must reflect the seriousness of your conduct and its consequences, and it must express the denunciation of the community[7]. It warrants a substantial period of detention.
[6]R v Blacklidge , ibid
[7]DPP v SJK [2002]VSCA 131 at [64]
In your favour I take into account that at the time at which you committed the offence you were a child and that you remain a child within the meaning of the Children and Young Persons Act[8]. It follows that I have the power to make any sentencing order which the Children’s Court may make under the Children andYoung Persons Act[9], and hence that there are engaged the sentencing principles laid down in sections 137, 138 and 139 of that Act. In my view, the considerations identified in paragraphs 139(1)(a), (b) and(c) are to some extent applicable to you and to that extent militate against a sentence of imprisonment.
[8]Children and Young Persons Act 1989, s.3
[9]Children and Young Persons Act, 1989, s. 276
You are of course also a young offender within the meaning of the Sentencing Act[10], which amongst other things enlivens the considerations identified in section 32 of that Act, and lends added weight in your favour to your prospects of rehabilitation and your age, good character and past history.
[10]Sentencing Act 1991, s.3
Evidence given in the course of the trial and further evidence given on plea leaves little doubt that until the commission of the offence you were a young person of outstanding good character and reputation. It shows you to have been and still to be devoted to your family, respectful of authority, assiduous in the pursuit of your studies and closely involved in your church and in assisting persons younger than yourself. Witness after witness has spoken of your friendly and caring disposition and of your qualities of leadership. The principal of the high school which you were attending at the time of the offence and the principal of the high school which you have been attending since the offence have both spoken in very favourable terms of your attitude to work and extra curricular activities and of your academic standards. Other witnesses have spoken of extracurricular studies which you have pursued in the Greek language and theology and of your participation in multi-cultural cultural activities sponsored by the Greek community and in charitable works for the disadvantaged and the elderly. You are without prior convictions and you have never been involved with the illicit use of drugs or other substances.
I am also persuaded that you harbour a deep sense of shame and remorse over the loss of life and grief which your conduct has caused. Dr Wendy Crouch, clinical psychologist, has given evidence of the treatment under which you have been since the commission of the offence and of the debilitating effect upon you of the sense of shame and remorse by which you are oppressed. A similar impression of genuine remorse emerges from the evidence of Mr Colin Richardson of the Department of Human Services.
Of course, you did not plead guilty to murder, and hence there has been a trial, but I have been told that you did offer to plead guilty to manslaughter in May of this year, and albeit that the offer was rejected, I take the offer into account as some further sign of remorse; whatever its forensic implications[11].
[11]R v RND [2002] VSCA 192 at [17] to [19]
The evidence which has been given by your current school principal and Dr Crouch and Mr Richardson, as well as evidence given on behalf of your family by your aunt, suggests to me that your chances of complete rehabilitation in the medium term are good. You have had throughout the trial and I have no doubt will continue to enjoy the close and loving support of your parents and family. In the last year you have completed year 11 of school studies, despite the fact that the prospect of the trial loomed throughout it, and it is the opinion of your school principal and other teachers that, given the opportunity, you are likely to complete year 12 with distinction. There is reason to think that you will go on to higher study and ultimately make a valued contribution as a member of society.
There must also be borne in mind in your favour your youth and immaturity at the time of the commission of the offence. In R v Mills[12] the Court of Appeal spoke in terms to suggest that youth of an offender for sentencing purposes is a primary consideration and that in the case of a youthful offender rehabilitation is usually far more important than general deterrence. This it was said is because punishment may in fact lead to further offending, and thus that individualised treatment focusing on rehabilitation is to be preferred. In the same case, the Court endorsed a rule, as representing a particular application of the general principle expressed in s. 5(4) of the SentencingAct, that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided; especially if he is beginning to appreciate the effect of his past criminality. Hence, as it was put in that case, the benchmark of what is sufficiently serious to justify adult prison in the case of a youthful offender may be quite high, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. Something of that same sort of reasoning appears to lie behind the decision of the Court of Appeal in R v Hill[13].
[12][1998] 4 VR 235 at 241-2
[13][1996] 2 V R 496 at 501
Those matters assume an added degree of importance in your case because of the evidence on plea of Mr Ian Joblin, forensic psychologist, concerning the differences in philosophies and facilities available as between Youth Training Centre and adult prison. In Mr Joblin’s opinion, Youth Training Centre is geared to rehabilitation with an emphasis upon education, whereas prison is essentially punitive. He is also of the view that given your age it is almost certain that if you were sent to adult gaol you would have to be placed in protective custody, and in turn that would limit the facilities at which you might be housed to institutions in which many of the inmates are sex offenders.
Youth Training Centre Order inappropriate
Bearing in mind your previous good character, your previous good record, your prospects of rehabilitation, your youth and, as much as anything, the need to avoid adult prison if possible, I determined during the course of your plea to direct that a pre-sentence report be prepared to establish your suitability for a Youth Training Centre Order and as to the availability of necessary facilities. The report has since been supplied and, not surprisingly, it shows that you are regarded as suitable for such an order and that the necessary facilities are in place. Consequently, I have given a great deal of thought as to whether it would be appropriate to make a Youth Training Centre order instead of sentencing you to imprisonment.
In the end, however, I have decided that it would not be appropriate. The crime of manslaughter carries a maximum penalty of 20 years imprisonment and, as I have said already, yours is a serious case of manslaughter. The maximum period for which I could direct that you be detained in a Youth Training Centre is only three years[14] and, even after giving full weight to everything which militates in you favour, I do not consider that three years detention in a Youth Training Centre is an adequate penalty. Despite your youth and the provocation to which you may have been subjected on the night of the offence, and despite the fact that your offence appears to me as an isolated aberration against an otherwise unblotted record, I do not consider that a head sentence of only three years detention is adequate to punish you to the extent which is just in all the circumstances.
[14]Sentencing Act, s. 32(3)
Adult Parole Board
Having determined that it is necessary to sentence you to imprisonment, I listed the matter for mention on 18 December 2002 in order to announce my intention to have the relevant materials submitted to the Adult Parole Board, to facilitate consideration by the Board of the exercise of its power under section 244 of the Children and Young Persons Act. That course was not opposed by counsel and I have been informed that the Board will sit today to consider the matter further.
It goes without saying of course that I have no control or influence over the Board and, in formulating the period of imprisonment to which you are to be sentenced, I take no account of the course which they may choose to adopt. I have endeavoured to facilitate their consideration of your case only so that, if it be their decision that you be transferred to a Youth Training Centre after you have been sentenced, your incarceration in adult prison can be avoided.
Sentence
In formulating the sentence to be imposed upon you, the law requires me to balance the factors which militate in your favour against the nature and gravity of your offence, your culpability and responsibility for the offence and current sentencing practices. I am bound too to manifest the Court’s denunciation of the type of conduct in which you have engaged and, to some extent, to consider the need for deterrence.
Balancing as best I am able the competing sentencing considerations laid down in the Sentencing Act and the Children and Young Persons Act and giving full weight to your youth, character, prospects of rehabilitation and the importance of endeavouring to avoid adult prison, I have concluded that the nature and gravity of your offence, the need to manifest denunciation of your conduct and the importance of deterrence requires that you be imprisoned for a period of six years and that you serve not less than four.
Accordingly, I sentence you to six years imprisonment. I fix a period of four years as the period you must serve before becoming eligible for parole. I declare that the period to be reckoned as already serve under the sentence is [33] days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
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