R v Rathbone
[2014] VSC 186
•30 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0009
| THE QUEEN | Plaintiff |
| v | |
| DAVID RATHBONE | Defendant |
---
JUDGE: | COGHLAN JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2014 | |
DATE OF JUDGMENT: | 30 April 2014 | |
CASE MAY BE CITED AS: | R v Rathbone | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 186 | |
---
CRIMINAL LAW — Sentence — Manslaughter— Early plea of guilty — Offender elderly and suffering poor health — Remorse — Total effective sentence of 7 years’ imprisonment with non-parole period of 5 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Defendant | Ms C Gwynn | Robert Stary Lawyers |
HIS HONOUR:
David John Rathbone, on 11 February 2014 you pleaded guilty to one count of manslaughter and on 23 April 2014 a plea was made on your behalf.
On 2 April 2013, at approximately 3:25 pm, you stabbed Stanley Lynch and threatened Michael Noonan. The three of you lived in individual units at Department of Human Services-owned and operated premises at 11-49 Little Ferguson Street, Williamstown.
Although there had been some limited animosity between you and the other two men, particularly (its seems) relating to motor cars, there was nothing which would have led to any anticipation of an attack of this kind.
At that time, you were then 76 years of age, and Mr Lynch 71 years of age.
On the afternoon of 2 April 2013 Mr Noonan (who was Mr Lynch’s friend and neighbour) returned to his unit at about 3:00 pm after going shopping. As he arrived home, he saw you were walking towards Mr Lynch’s unit.
About 10 to 15 minutes after Mr Noonan arrived home, Mr Lynch called out to him from his front door. The two men then sat down on chairs on Mr Noonan’s veranda. When sitting on the veranda, Mr Lynch was on the left and Mr Noonan on the right.
At about 3:25 pm, you came through the front gate into Mr Noonan’s yard. Mr Noonan asked you what you were carrying and you said that you would show him what it was in a minute. You then placed the item on a planter box in front of Mr Lynch. It was covered with something, either a rag or perhaps a plastic bag. You then removed a knife from under the cover.
It was a carving knife about 30 to 40 cms in length. You approached Mr Lynch and stabbed him once in the stomach with the knife saying, “that’s for you”. You then turned to Mr Noonan and said, “and you’re next”. After a few seconds, you withdrew the knife from Mr Lynch. As Mr Noonan went to Mr Lynch’s aid, you repeated to Mr Noonan, “and you’re next”.
You left and Mr Noonan gave such attention to Mr Lynch as he was able and called an ambulance.
Mr Lynch returned next door to his own unit. Police and ambulance arrived and Mr Lynch was taken to the Alfred Hospital. He died on 10 April, after undergoing several operations. Mr Lynch’s general health was not good, but in the legal sense there is no doubt that your stabbing caused his death.
You had returned to your unit when you were arrested by police.
In quite a long interview, you accepted what you had done in a general way but were unable to give much detail as to what had occurred. You were not able to give a reason for stabbing Mr Lynch. You said that you would feel guilty if Mr Lynch died. You said that you did not intend to kill or really hurt Mr Lynch but you did not really know what had happened.
On the plea, I received reports from Dr Danny Sullivan, Psychiatrist, dated 24 September 2013, and Ms Izabella Walters, Clinical Neuropsychologist, dated 13 April 2014.
Those reports do not throw very much light on the events, although in his report Dr Sullivan said, under the heading “Mr Rathbone’s account of the alleged offences”:
Of the alleged offence Mr Rathbone reported that in his accommodation there was “a little gang” of people who had developed ”animosity” towards him. He described that a woman in the area aged 38 and by the name of Debbie had slept with a number of different people. He denied being jealous about this but stated that she “slept around... two or three of us”.
Mr Rathbone felt that the victim had been tampering with his car and had tried to remove the numberplates, had put water under the bonnet and used to “come around at night...used to look in the place”. He felt that this was because “he was that type”. He told me that at the time of the alleged offence the car was preoccupying him. He noted of the victim that “he didn’t say much to me”. He noted also that someone had written a “poison letter” which circulated around the units. He told me that he complained about the victim to the council.
Mr Rathbone told me that on the day he took a kitchen knife from his apartment. He denied usually carrying a knife. He said he felt “so run down... putting money into the car”. At the time he felt that “it all got too much”. He took a kitchen knife and placed it in a plastic bag to prevent cutting himself. He described that the stabbing of Mr Lynch was “spur of the moment... I planned to threaten him”. When he had the knife he reported that he “was thinking of touching him with it”. He was uncertain why he stabbed Mr Lynch and stated “as soon as I realised what I’d done... call an ambulance”. He noted that at the time he had not been sleeping well. He stated that he had been compliant with medication and denied that he was intoxicated.
I should interpolate that there is no evidence of any wrongdoing by either Mr Lynch or Mr Noonan (that is, your grievances were more of perception than of fact). Dr Sullivan went on to say under the heading “Opinion and recommendations”:
Mr Rathbone appears to have taken the weapon from his house directly to Mr Lynch’s apartment. He provided no explanation of the stabbing but purportedly also threatened Mr Noonan. He then returned to his own apartment and cleaned the weapon.
Mr Rathbone at police interview gave a garbled account of his behaviour at the time of the alleged offences. He appears to have been aware of the actions although described unclear recollections of the events. Nevertheless he was able to direct police to the weapon, which appears to have been washed after the stabbing. Following his reception into custody there was no account of delusional beliefs, although the Justice Health medical record is not available. However earlier medical assessment a few hours earlier did not document any abnormalities of mental state.
I cannot find clear evidence of hypoglycaemia or other medical conditions of relevance at the time of the alleged offence. Mr Rathbone reported to police having eaten food and taken insulin in the middle of the day, although told medical staff on reception into custody alter [sic, later] that day that he had not taken insulin. He did not have a blood sugar checked until later in the day. Hypoglycaemia is typically associated with confused and disorganised behaviour rather than organised or apparently purposive behaviour. A hypoglycaemic person will generally appear unwell, sweaty and overtly disorientated and confused. These observations were not made about Mr Rathbone by witnesses, arresting police or at preceding medical assessment for another issue.
There is no clear indication of any mental illness underlying his behaviour, and although Mr Rathbone’s varying accounts of his behaviour have a persecutory flavour, this is not clearly delusional and there is no clear information to confirm that he was acting while influenced by delusional beliefs. In addition collateral accounts of his character from his brother suggest past disturbed behaviour and belligerence when intoxicated and possibly between episodes.
There is no overt indication of cognitive impairment, although he has a history of multiple risk factors for cognitive impairment: asystolic arrest, vascular disease, diabetes, past smoking and heavy alcohol use. There was however no indication at my assessment of confused thinking, confabulation, significant memory impairment or language disturbance.
For completeness, I should add that in her report Ms Walters said:
On testing, there were no abnormalities in his reasoning, information processing, memory or his ability to modify his behaviour in response to feedback. In contrast to his normal performance in these areas, he demonstrated significant difficulties on almost all tasks assessing executive functioning. His ability to organise his approach to a complex task was low, and his ability to flexibly switch his attention between two trains of thought was in the Borderline Impaired range. His score on a screening battery of executive dysfunction indicated difficulties in this area.
It is my opinion that Mr Rathbone has a degree of executive dysfunction on the background of otherwise well preserved cognitive functioning. This dysfunction may have affected the quality of his planning and problem solving, including the decision to physically attack Mr Lynch. However, it does not explain the entirety of his behaviour, as it would if, for example, he could not control his behaviour in response to a threatening or frightening stimulus. Therefore, it is my opinion, that Mr Rathbone’s executive dysfunction influenced, but did not cause, the behaviour that led to the offending.
It is my opinion that Mr Rathbone’s executive dysfunction does not negatively impact on his experience of imprisonment.
It follows that your behaviour is largely unexplained. That causes me to have some reservations about your prospects of rehabilitation, but given your age and your physical health, you are not to be regarded as a particular threat to the community, and I accept – despite the reservation that I have expressed – that your prospects of rehabilitation are reasonable.
Your background had been summarised in Dr Sullivan’s report in particular. You were born in Perth, Western Australia. You are the second oldest of six brothers and the oldest of five surviving brothers. You attended school in Western Australia until you were 15. Your schooling was unremarkable. You report having done National Service in the Royal Navy, from which you were discharged for alcohol-related misbehaviour. At that time you attempted suicide. Your work history has largely been in accountancy-type work across a number of industries. You worked until your late 50s. You stopped work because of your poor physical health, particularly your diabetes.
You have been in several relationships but have no children of your own, although you did have stepchildren in one relationship. Your most significant relationship led you to Tasmania but that relationship ended and you returned to Melbourne.
In 2010 you moved into the accommodation where the event which brings you here occurred. Prior to that, you had lived in caravan parks in Chelsea, Mornington and Rosebud.
You do not appear to have many, if any, close friends outside your family. Three of your brothers have provided references to me and you have their support. They are at a loss to understand how you came to be in this position. It seems that all of your brothers live interstate, and although three came to support you on the plea they will not be in a position to give you much direct support during your imprisonment.
The three of your brothers who gave references each observed that the excessive use of alcohol has been a blight on your life, and appears to have led to your apparent relative social isolation.
You have no prior convictions, and you pleaded guilty at an early stage of the proceedings. I accept that it was entirely appropriate for the prosecution to have accepted your plea, on the basis that although you intended to attack Mr Lynch, you did not intend to cause his death or really serious injury, but that a reasonable person in your position would have realised that that he or she was exposing another to an appreciable risk of serious injury. The attack was nonetheless quite serious and you must have intended (in the legal sense) to cause injury at least approaching serious injury.
You attended at the home of Mr Noonan with a large knife intending to do harm, and you used that knife. Both counsel submitted that your crime fitted into the middle of the range of seriousness of the crime of manslaughter. Your counsel submitted that it was to the lower end of that range and the learned prosecutor submitted that it was to the upper end, since the crime did involve the use of a weapon, although only one blow was struck, and involved the intrusion into Mr Noonan’s home where both Mr Noonan and Mr Lynch were entitled to regard themselves as safe. Your crime, which was unprovoked, also carried out with it the element of surprise. Although apparently not premeditated, there was some planning in the sense that you took the knife with you. In the circumstances, I would place your offending in the middle range, but towards the upper end of it.
Your physical health is parlous. You are insulin dependent. You have cardiac difficulties and have had an aortic valve replacement. You have been overweight. You had health problems when first admitted to prison but those problems have now been brought under control and appear to be well managed.
Your age and physical health will make prison more burdensome for you and I have taken that into account, and that Ms Walters found that under the heading “Mood”:
On a self-report questionnaire surveying symptoms of psychological distress, Mr Rathbone endorsed items that placed him in the Extremely Severe range for symptoms of depression, Mild range for symptoms of stress and Mild to Moderate range for physiological symptoms of anxiety.
Dr Sullivan did not comment on the question of depression, and the material is somewhat unsatisfactory, but I have taken Ms Walters finding into account on your behalf. As I have already observed, you pleaded guilty at an early stage, you have reasonable prospects of rehabilitation, and I accept that you are remorseful. Your counsel, who ably put to me all the matters she could in mitigation of your sentence, placed particular reliance upon your age, your health, your plea of guilty, and the fact that it may be that you will die in prison. I must say that, were it not in particular for those matters, I would have imposed a higher sentence upon you.
Your crime is a serious one and it has led to be death of a wholly innocent man. I received victim impact statements from Mr Noonan and Ms Yvonne Florence, Mr Lynch’s sister. It is not surprising to observe that they have both been severely affected by Mr Lynch‘s death and the circumstances surrounding it. I have taken those matters into account.
The crime of manslaughter carries a maximum of 20 years’ imprisonment. I was, for the purposes of the plea, referred to a number of other sentences and the Sentencing Snapshot from the Sentencing Advisory Council with respect to the crime of manslaughter. I was especially referred to the recent cases of DPP v Bryan[1] and R v Iles.[2] I have had regard to that material.
[1][2014] VSCA 54.
[2][2009] VSCA 197.
I am obliged to have regard to both general and specific deterrence and, although the latter would not be of great significance to a man of your age, since your behaviour seems unexplained it is to be given some – albeit not significant – weight, notwithstanding the submissions of your counsel that it should bear no weight in this process.
I am obliged to have regard to just punishment, to retribution, and to denunciation of your conduct.
I have taken all the matters put on your behalf into account (in particular, your age and ill health), and the matters which the law otherwise obliges me to take into account.
You will be sentenced to be imprisoned for seven years and I fix a period of five years before you will be eligible for parole.
I declare that you have already served 393 days (not including this day) by way of pre-sentence detention and I direct that this declaration and its details be entered into the record of the court.
I indicate that, pursuant to s 6AAA of the Sentencing Act 1991, had it not been for your plea of guilty I would have sentenced you to be imprisoned for nine years with a non-parole period of seven years. I direct that this indication and its details be entered in the record of the court.
- - - - -
0