R v Rathbone - [2014] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0009

THE QUEEN	Plaintiff
v
DAVID RATHBONE	Defendant

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rathbone

Details

AGLC: R v Rathbone [2014] VSC 186
Case: [2014] VSC 186
Decision Date: 30 April 2014

CaseChat Overview and Summary

The appellant, Mr Rathbone, was convicted of manslaughter and appealed against his sentence. The case was heard in the Supreme Court of Victoria. Mr Rathbone was 76 years old and had pleaded guilty to the manslaughter of his wife by striking her with a heavy object during an argument. The Crown accepted that he was suffering from dementia at the time of the offence and that this had impaired his ability to control his violent impulses. The issue for the court was to determine an appropriate sentence, taking into account the offender's age, health, and remorse.

The court acknowledged that the offender had shown remorse for his actions, but also recognised that the offence was of a serious nature, involving violence against a vulnerable person. The court noted that the offender's age and health were relevant factors in determining the appropriate sentence, but these factors did not necessarily outweigh the seriousness of the offence. The court considered that the offender's early guilty plea and remorse were mitigating factors, but also noted that the offender had a prior history of violence against his wife. The court ultimately determined that a sentence of imprisonment was appropriate, but that the total effective sentence should be reduced due to the offender's age and health.

The court imposed a total effective sentence of 7 years' imprisonment, with a non-parole period of 5 years. The court noted that the offender's age and health meant that he was unlikely to be a danger to the community if released on parole after serving the non-parole period. The court also noted that the offender had expressed remorse for his actions and that he was unlikely to reoffend. The court considered that the sentence imposed was appropriate in the circumstances, taking into account all relevant factors. The appeal against sentence was ultimately dismissed.

Orders