R v Robb
[2015] VSC 596
•28 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0123
| THE QUEEN |
| v |
| KRISTY ROBB |
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2015 |
DATE OF SENTENCE: | 28 October 2015 |
CASE MAY BE CITED AS: | R v Robb |
MEDIUM NEUTRAL CITATION: | [2015] VSC 596 |
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CRIMINAL LAW – Sentence – Manslaughter – Jury returned verdict of guilty to charge – Sentencing considerations – Sentenced to imprisonment for a period of four years - Boulton v The Queen [2014] VSCA 342.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC with Ms S. Coombes | Ms V. Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr C. Mylonas | Paul Vale Criminal Law |
HIS HONOUR:
Kristy Robb, you have been found guilty by a jury of the offence of manslaughter by unlawful and dangerous act in that on 30 January 2014, you killed Alan Dennis Matthews. The maximum term of imprisonment for the offence of manslaughter is 20 years.[1]
[1]Crimes Act 1958 s 5.
On the evening of Wednesday 29 January 2014, you were driven by Mr Gino Rachele, with whom you were in an intimate relationship, to the home of Mr Matthews at 25 Henry Street, Noble Park. For a short period, it seems only a matter of days, earlier in January 2014, you, with your then three children, had rented a bungalow at the rear of these premises from Mr Matthews.
The rented premises were unsuitable, and you the moved to 1 Albert Road, Hallam around 22 January, where your mother, Ms Catherine Helen Meek, was living with a friend of hers, Ms Cherree Elise Smith-Kurzbock.
There was a rental dispute between Mr Matthews and you. He claimed you owed him rent and, as a consequence of this, he retained some of your property.
It is apparent the relationship between Mr Matthews and you was not good. Rachele gave evidence of witnessing at least one conversation between Mr Matthews and you prior to 29 January when Mr Matthews’ was abusive towards you.[2]
[2]Rachele, Supreme Court Transcript (‘Transcript’) at 212.1 - 212.10.
On the evening of 28 January, Rachele arrived at the Albert Road address at approximately 11.00pm. You informed forensic psychiatrist, Ms Pamela Matthews, who examined you on 28 September 2015, that with Rachele, you shared a bottle of vodka and two to three cannabis joints.
Your children were due to start school on 29 January 2014. Items of school uniform remained at Mr Matthews’ premises. Rachele and you decided to drive to Mr Matthews’ address to obtain items of school uniform and, it appears, other possessions belonging to you that were being held there.[3] It was Rachele that offered to drive you to Noble Park.[4]
[3]Rachele, Transcript at 192.15 and213.20 - 213.30.
[4]Rachele, Transcript at 214.2.
It was around 2.45am that Rachele and you arrived at 25 Henry Street, Noble Park.
It is the evidence of Rachele, which I accept, that the attendance at Mr Matthews’ house at 2.30am was to avoid a confrontation with Mr Matthews.[5]
[5]Rachele, Transcript at 192.25.
Upon arrival at the Henry Street address, Rachele and you unlawfully obtained entry to the bungalow at the rear of the premises. You, with Rachele, began to remove some of your property which was loaded into Rachele’s motor vehicle. During the course of these activities, Mr Matthews was disturbed and he confronted Rachele and you in the bungalow.
The evidence of Rachele is that he first observed Mr Matthews standing in the doorway of the kitchenette and the lounge room area of the bungalow. He heard heated discussions between the two of you. Rachele stated he heard banging noises and scuffling. He said he saw movement of bodies, which he described as a frantic movement, and it looked like people struggling with each other. He stated it could have been somebody banging against furniture or a doorway, or the knocking of furniture; he could not be sure.[6]
[6]Rachele, Transcript at 197.8 - 197.30.
The significant injuries suffered by Mr Matthews included a laceration to his right eyebrow measuring 35mm, a laceration to the left side of the head above the region of the left ear measuring 26mm, a small laceration behind the right ear of 5mm, a laceration at the back of the left side of the head measuring 25mm and a fracture of the sternum with an associated area of tram line bruising over the chest. The laceration injuries were described by forensic pathologist, Dr Noel Woodford, as blunt force injuries caused by a blunt instrument. The fractured sternum, Dr Woodford stated, was typically caused by an implement that is long, hefty or firm.[7]
[7]Woodford, Transcript at 381.10.
A difficulty in sentencing, which I deal with later in these reasons, is determining just what injuries sustained by Mr Matthews the jury were satisfied were inflicted by you.
After the confrontation in the lounge room, Mr Matthews was grabbed from behind by Rachele and taken to the floor. Mr Matthews was restrained on the floor by Rachele putting his knee across his back for approximately three minutes.[8] During this time, Mr Matthews was trying to break free of Rachele’s restraint.
[8]Rachele, Transcript at 221.22.
Rachele stated he did not see you inflict any injury on Mr Matthews over this time.[9]
[9]Rachele, Transcript at 199.8.
At some stage after Rachele forced Mr Matthews to the floor and was restraining him, you exited the bungalow. Rachele stated in evidence that he subsequently released Mr Matthews, pushed him into the lounge room and imprisoned Mr Matthews in the lounge room of the bungalow by holding the lounge room door closed. Rachele then released this door, ran to the main door at the entrance of the bungalow and again he kept that door shut, imprisoning Mr Matthews in the bungalow.
Rachele and you departed Mr Matthews’ premises. Mr Matthews called 000 and in the conversation with the 000 operator, Mr Matthews stated he had been ‘bashed by a woman and a bloke’. Later, he said, ‘They bashed me’. This phone call was made at 2.53am.
Mr Matthews was subsequently found by Police at approximately 3.32am, deceased in the bathroom of his house. Mr Matthews suffered from coronary artery disease with marked stenosis of the left anterior descending coronary artery and narrowing of some other vessels. There was evidence of a prior coronary infarct.[10] The evidence of Dr Woodford and cardiologist, Dr Neil Strathmore, accepted by the jury, was that Mr Matthews suffered cardiac arrest as a consequence of the stress of the assaults and potentially from loss of blood.[11]
[10]Woodford, Transcript at 399.6 – 400.8.
[11]Woodford, Transcript at 386.16 - 386.25: Strathmore, Transcript at 425.10 – 426.6.
After leaving Mr Matthews’ home in Noble Park, Rachele and you went to Rachele’s house in Narre Warren. Neither of you had suffered any injury. Both of you had blood of Mr Matthews on your person. Rachele stated that he washed the shoes and clothes you were both wearing at the time of the assaults.
At around 2.00pm on 30 January 2014, Detectives Hunt and Roche attended 1 Albert Street, Hallam. You gave a false name and date of birth to them. When you were informed you were under arrest, you attempted to abscond.
In a record of interview conducted that day, you dishonestly denied any knowledge of the circumstances of the assaults on Mr Matthews earlier that morning.
Mr Matthews
Mr Matthews was born on 21 January 1945. He was one of three children. Mr Matthews’ brother, Mr Colin Drew Matthews, gave evidence that Mr Matthews attended Swinburne Technical College. He left school at 16 and obtained a job with a bank. After approximately ten years with the Commercial Bank of Australia, he took a job as a travelling salesman and worked in this occupation for approximately 15 years. Mr Matthews developed liver disease due to alcohol abuse and was subsequently granted the invalid pension and, following this diagnosis, he abstained from alcohol.
Mr Matthews was twice married. He had three children from his first marriage; two sons, Bradley and Paul, and a daughter, Kelly. The family home was in Noble Park.
After approximately 20 years, that marriage ended. Mr Matthews remarried and became stepfather to his second wife’s four children. His second marriage lasted four to five years.
Mr Matthews enjoyed buying and selling goods for trash and treasure markets. He restored whitegoods and furniture. He bought and sold all types of bric-a-brac.
Mr Matthews was interested in sport in his earlier years, rowing, attending Richmond Football Club matches and later becoming involved in his son’s local football club, where he had a number of friends and would regularly attend with his brother.
Recently, Mr Matthews had developed a relationship with a woman in the Philippines. He had visited her and she was proposing to travel to Australia to stay with him in early 2014.
The victim impact statement from Mr Matthews’ daughter, Ms Kelly McPhee, demonstrate that despite being estranged from her father for some years, his death and the circumstances of his death has had a profound impact on her life; as she stated, Ms McPhee has been denied the opportunity of rebuilding the relationship with her father. Similar statements are expressed by his son, Mr Paul Matthews.
Mr Matthews had ten grandchildren. Grandchild, Ms Terri Matthews, read her victim impact statement in Court. The content of this statement demonstrated a loving and caring relationship between grandfather and grandchildren – particularly Ms Matthews. The sense of anger and despair because of the senselessness of his death is apparent from the statement. Further, your apparent lack of remorse is commented on as a matter that is particularly upsetting to the family.
The hurt and loss of the family was clearly apparent upon consideration of this statement. I also have regard to the report of Dr Paul Northway of 30 September 2015 concerning the death of Mr Matthews and its impact on Ms Matthews.
What injuries did Robb inflict?
In considering the jury verdict, I find a difficulty in sentencing is determining just what injuries the jury was satisfied were inflicted by you. In manslaughter cases, the difficulty in determining what the jury has and has not accepted is one described by the Victorian Court of Appeal as ‘notorious’.[12] This difficulty is demonstrated by the case the prosecution put to the jury. The prosecutor opened the Crown case by stating that ‘the first substantial issue is the question of the injuries that Mr Matthews suffered as to who inflicted them and when. Now, the Crown case is that Ms Robb largely inflicted these and largely inflicted them prior to the intervention of Mr Rachele in the fight’.[13] The prosecutor closed the Crown case by stating ‘that whilst you and Mr Matthews were in the lounge room of the bungalow a number of injuries must have been sustained by Mr Matthews’.[14] The prosecutor posed the question to the jury: ‘Did Ms Robb deliver the blows or any of them such as to cause significant injuries to Mr Matthews?’[15] It is apparent from the jury’s verdict they were satisfied you did deliver blows that were a cause of significant injury to Mr Matthews and that those injuries were a substantial and operating cause of his death by cardiac failure occurring approximately 50 minutes after the blows were delivered; but as stated above, it is difficult, because of some uncertainty on the evidence, to determine just what injuries resulted from your acts.
[12]See DPP v Kallipolitis (Unreported, VSCCA, Ormiston JA, 6 April 1998), 2.
[13]Prosecution opening address, Transcript at 136.10 - 136.14.
[14]Prosecution closing address, Transcript at 576.21 - 576.28.
[15]Prosecution closing address, Transcript at 573.15 - 573.20.
The prosecution case, in large part, relied upon the evidence of Rachele. Rachele was charged as your co-accused with manslaughter. The Crown accepted a plea from Rachele to one count of recklessly cause injury to Mr Matthews and one count of false imprisonment. A condition of accepting the plea was that Rachele would give evidence in accordance with a previously provided statement at your trial. During the course of Rachele’s plea hearing, Mr Rose stated: ‘We can’t say that any of the serious injuries have been caused by Rachele’.[16] Rachele, in his evidence, denied he delivered any of the blows to Mr Matthews. Yet there is evidence adduced at your trial to suggest he played a greater role in the events that occurred in the bungalow than what he admitted at trial and what was agreed to by the prosecution on his plea of guilty:
(a)he agreed in cross-examination that he had answered in his record of interview that, ‘I walked in and grabbed him and knocked him and took him to the ground’. He said he had ‘misworded’ himself as far as the use of the word ‘knocked’ was concerned. The answer is capable, on one view, of being taken as an admission of an assault on Mr Matthews by Rachele;[17]
(b)your mother, Ms Meek, gave evidence of a conversation with Rachele at the Hallam Hotel on 4 February 2014. Ms Meek stated that Rachele told her that he had hit Mr Matthews across the back of the neck;[18]
(c)your aunt, Ms Robb, stated that Rachele had informed her in a separate conversation to that of your mother at the Hallam Hotel that he had ‘dropped’ Mr Matthews and put his knee in his back;[19]
(d)Mr Matthews’ blood was found on the balaclava mask worn by Rachele and the driver’s seat area and driver’s side column of Rachele’s car. Rachele drove the car away from the scene of the crime. This evidence, particularly the blood of Mr Matthews being found on the mask worn by Rachele, in my opinion indicates a greater role in his involvement with Mr Matthews than he admitted in his evidence; and
(e)Mr Matthews, in the 000 call made after the assaults, on two occasions referred to having been bashed by both you and Rachele.[20]
[16]See R v Rachele [2015] VSC 468 [12] (Rush J).
[17]Rachele, Transcript at 229.20 - 229.25.
[18]Rachele, Transcript at 293.28; Transcript at 296.1.
[19]Robb, Transcript at 300.14.
[20]Mr Matthews did not identify Rachele by name, but it is clear in referring to the male accompanying Ms Robb, he was referring to Rachele.
It is in the context of this evidence that I have particular concerns as to the strength of the evidence said to support the allegation you were responsible for fracturing Mr Matthews’ sternum. In the plea hearing of Rachele, the prosecutor indicated that it would be alleged that the fracture of Mr Matthews’ sternum was caused as a consequence of you stamping on his chest.[21] That allegation was not opened by the prosecution in your trial. Further, in his opening in your trial, the prosecutor alleged you continued to assault Mr Matthews whilst he was being restrained, chest down, with a knee in his back by Rachele. That allegation was not supported by the evidence of Rachele at your trial.[22]
[21]Rachele, Plea Hearing Transcript at 17.9. The prosecutor subsequently stated the fractured sternum could have been caused by a stomp or an implement – one or the other.
[22]Rachele, Transcript at 199.6.
At the plea hearing of Rachele, I specifically asked his counsel whether there was any evidence of a blow being struck by you whilst Rachele was holding Mr Matthews on the ground. Mr Morrissey SC answered:
No. All there is, there’s a gap when that could happen. Rachele says he wasn’t looking. He speculated in the interview that there were, but he doesn’t say that he saw any such blow. What he says is that he came down sideways and that he was in effect holding Mr Matthews by the arms from behind, so he’s exposed the chest area, but he can’t say that that’s when the foot went onto the chest or that any particular blow was struck at that time. All he can say is that’s what he did. Subsequently, he placed himself above Matthews, who was thereafter on his stomach being pinned down.[23]
In his examination of Rachele at your trial, the prosecutor at no time attempted to elicit evidence that in bringing Mr Matthews to the ground, he exposed his chest area to some form of attack by you.
[23]Rachele, Plea Hearing Transcript at 26.6 - 26.16.
At one stage of your trial, during the examination of Dr Woodford, the prosecutor did attempt to introduce evidence of a stamp to the chest of Mr Matthews having caused the fractured sternum. The question and answer were objected to, and this particular allegation was not pursued any further by the prosecutor.[24]
[24]Woodford, Transcript at 381.18 - 381.28. In fact, an application for discharge of the jury was made by Mr Mylonas a week after this examination. I agreed that the prosecution’s introduction of this allegation in the circumstances gave rise to prejudice such that the jury should be discharged. I also stated in my ruling that if Ms Robb wished to proceed with the trial, I would direct the jury that they could not find that the fractured sternum was caused by Ms Robb stomping on Mr Matthews’ chest – that such a finding was not open to the jury. Mr Mylonas indicated that with such a direction, Ms Robb would proceed with the trial and did not request for the jury to be discharged.
On the other hand, there is some evidence that whilst Rachele was restraining Mr Matthews on the ground, Mr Matthews sustained some form of injury when he and Rachele were ‘moving around’ because they were ‘constantly moving’,[25] as he gave out a cry of pain. Whether Mr Matthews sustained injury or what elicited the cry of pain is unclear. Whether something had occurred to fracture the sternum or aggravate a fractured sternum was not the subject of examination at trial by prosecution or defence.
[25]Rachele, Transcript at 205.28: 228.18.
Rachele’s evidence is that, prior to taking Mr Matthews to the ground, he did not observe that he suffered from any apparent injury. Rachele stated that when he took Mr Matthews to the ground, his head hit the floor and Rachele believed he had given him a blood nose.[26] Rachele said he restrained Mr Matthews to prevent him from being attacked by Mr Matthews.[27] He said Mr Matthews thrashed around whilst being restrained[28] and, upon releasing his restraint, Mr Matthews started to struggle with Rachele.[29] This evidence of the actions of Mr Matthews is inconsistent with a person who has sustained a fractured sternum. Dr Woodford stated a fractured sternum would be very painful[30] and can cause difficulties with breathing.[31] This evidence is not supportive of Mr Matthews having a fractured sternum at the time he was restrained by Rachele, with Rachele’s knee in his back and consequently significant pressure being applied to Mr Matthews’ chest. Further, upon being released by Rachele, Mr Matthews wrestled with Rachele as he was forced into the lounge room of the bungalow area.[32] Again, this is inconsistent with Mr Matthews at the time having a fractured sternum.
[26]Rachele, Transcript at 220.14 - 220.20.
[27]Rachele, Transcript at 198.13.
[28]Rachele, Transcript at 221.16.
[29]Rachele, Transcript at 222.21 - 222.28.
[30]Woodford, Transcript at 387.14.
[31]Woodford, Transcript at 382.26.
[32]Rachele, Transcript at 222.21 - 222.27.
Rachele agreed with the proposition put to him in cross-examination that in his evidence, he had tried to minimise his involvement. In my opinion, there is credible evidence to support the proposition that Rachele did minimise his involvement with Mr Matthews and thus his role in causing injury to Mr Matthews. No better illustration of this is the report of Mr Matthews to 000 that he was bashed by Rachele.
The case of the prosecution is that you assaulted Mr Matthews in the lounge room of the bungalow prior to the intervention by Rachele. There was blood spatter on walls of the lounge room and the floor. A baseball bat and a steel rod, both stained with Mr Matthews’ blood, were found on the lounge room floor. The evidence of Rachele is that you were in the lounge room with Mr Matthews, with noises emanating from the lounge room consistent with scuffling noises and people struggling. I am satisfied the jury found you committed acts in the lounge room of the bungalow that resulted in injuries to Mr Matthews’ head, being lacerations to his right eyebrow, a laceration to the left side of the head, a laceration to the right ear and a laceration at the back of the left side of the head. These assaults are serious. You were illegally in Mr Matthews’ house and you have hit him to the head with either a baseball bat, a steel rod or potentially an elongated torch. It is clearly apparent the jury accepted that these injuries were a cause of Mr Matthews’ death.
I am not satisfied beyond reasonable doubt that you are responsible for the fractured sternum sustained by Mr Matthews which, on the evidence at trial, was the most serious injury sustained by him. The vagueness in the manner in which the prosecution put this particular matter at trial and the evidence I have referred to above indicating a greater role by Rachele are important matters I take into account. Further, the physical actions of Mr Matthews when accosted by Rachele after Mr Matthews left the lounge room I have referred to above cause me to have a doubt that Mr Matthews had sustained a fractured sternum prior to being taken to the ground by Rachele at or near the doorway to the lounge/kitchen area of the bungalow. There is no evidence, and it was not the prosecution case, that you assaulted Mr Matthews after you left the lounge room.
Personal circumstances
You were born on 6 May 1987 in Queensland. You are 28 years of age. You were 26 at the time of your offending. You have prior convictions, spanning between 2005 – 2006 for car theft, shop theft, threat to kill, assault, resisting Police and traveling without a valid ticket, and more recently, in 2009 for making a false report to Police.
Evidence tendered and submissions on your behalf indicate you have had a tumultuous upbringing. Your parents were separated for much of your childhood and youth, officially separating when you were 17. Your mother, Ms Meek, suffered from and continues to suffer mental health issues, principally schizophrenia. Your father, Mr Chris Robb, was an alcoholic, with you disclosing that he would frequently abuse you and your mother as a consequence of your parents’ dysfunctional relationship. You spent time in emergency foster care and were often placed in short term care with your paternal grandparents or your paternal aunt. You reported having been sexually assaulted at the age of 14 by an acquaintance of your mother. Mr Mylonas described this assault as rape. The criminal proceedings lasted two years with the offender being sentenced to a term of imprisonment. As a result of this assault, you ceased attending school and developed anxiety and post-traumatic stress disorder.
In respect of your education, you frequently changed schools, attending seven or eight primary schools in New South Wales, approximately five in Queensland, two in Victoria and one in South Australia. As a result you had difficulties adjusting and learning. You rarely participated in extra-curricular activities because of the transitory nature of your schooling. You enrolled in TAFE for Year 10. These studies ceased, however, as a result of the sexual assault you suffered. You have been casually employed as a waitress, fruit picker, telemarketer and a cleaner prior to having your first child.
You have four children, Daniel, Milly, Travis and Alexander, with Mr Michael Stephenson, from whom you have been separated since October 2013. You reported that Mr Stephenson suffers from bipolar disorder, experiencing suicidal thoughts and bouts of depression, and that he physically and verbally assaulted you. The Department of Human Services has been involved with your family since 2009. Your three eldest children currently reside with Mr Stephenson. Alexander has been placed in your care and is currently with you on remand at the Dame Phyllis Frost Centre.
A comprehensive psychological report of Ms Pamela Matthews, Forensic Psychologist was tendered.[33] Ms Matthews obtained a history that at the time of your offending you had been experiencing feelings of depression and anxiety – crying nearly every day, feeling unmotivated and unable to sleep. You described your life as shambolic.
[33]DX-1 (Report and Resume of Ms Pamela Matthews to Paul Value Criminal Law re Kristy Robb dated 8 October 2015).
You were smoking cannabis during this period. Since your arrest you have, however, ceased to use cannabis. On the evening of your offending, you reported having shared a bottle of vodka with Rachele, but that normally you would only consume alcohol occasionally, mainly on special occasions. As stated earlier, you smoked cannabis with Rachele prior to the assaults on Mr Matthews.
Ms Matthews in her report stated that there were indicators that the answers you provided to her may not have been ‘forthright’, demonstrating ‘defensiveness and exaggeration of some problems’.[34] Further, Ms Matthews opined that there was a possibility you were in denial concerning your substance abuse issues.[35]
[34]DX-1, 9.
[35]Ibid.
To date, since the age of 14 you have accessed the services of various counselling providers. You had previously been prescribed Valium, Seroquel and Temazepam. You state that have not used any prescription medication since your last pregnancy with Alexander. Further, while on bail, you undertook an anger management course as well as attending drug and alcohol counselling with South East Alcohol and Drug Service (‘SEADS’).
Ms Matthews diagnosed you as suffering from partial post-traumatic stress disorder and major depressive disorder. It was her view that your outbursts of volatile anger, anxiety and distress arising from this mental condition were significant contributing factors of your offending. You continue to suffer from ‘depressed mood most days, appetite and sleep disturbance, psychomotor agitation, feelings of worthlessness, and diminished ability to think and concentrate’.[36] Ms Matthews attributes this condition as having negatively impacted your ‘capacity to think and act rationally and reasonably’[37] at the time of your offending.
[36]Ibid, 11.
[37]Ibid, 12.
Ms Matthews explains how your history, characterised by ‘attachment disturbance, exposure to substance use, family violence, parental conflict, neglect, parental mental illness, sexual assault and limited education’ will ‘leave a mark upon [your] psychological functioning that will reverberate over a lifetime’.[38] These experiences will permeate and disturb your future.
[38]DX-1, 10.
Sentencing considerations
In your record of interview you indicated no remorse concerning the death of Mr Matthews. There is some evidence that you now recognise the impact of your actions on the family of Mr Matthews and feel remorse for your actions. You informed Ms Matthews who reports that you understand ‘Mr Matthews’ death has caused a lot of distress to his family and thought that they are likely to be suffering because of it’.[39] This is a factor I have taken into consideration in sentencing you.[40]
[39]Ibid, 3.
[40]See R v Fiorio (Unreported, VSCCCA, Murphy J, 23 April 1990), 5.
Since these offences, you have complied with your bail conditions. I do note that you were on bail at the time of this offending.
I accept that your primary concern throughout these proceedings has been focused on the continued care and support of your son, Alexander. Ms Matthews cites your attachment as ‘a positive rehabilitative factor which should be supported’.[41] The Department of Human Services will assess and make a decision as to Alexander’s placement with you in custody in light of the duration of the sentence I impose. Alexander can remain in your care, in prison with you, until the age of five. He is currently four months old.
[41]DX-1, 12.
Your prospects of rehabilitation are a sentencing consideration of significant importance, particularly given your youth and the circumstances of your offending. I accept the submission that your prospects of rehabilitation are reasonably strong, but they are highly dependent upon and strengthened if you were to be granted continued custody of Alexander. In considering your reasonable prospects of rehabilitation, I particularly have regard to your recent attendance at an anger management course and attendance at drug and alcohol counselling. Your attendance at these courses suggests an understanding of the necessity of addressing matters that may cause you to re-offend. The need for specific deterrence is not as necessary or strong as the need to promote and support your rehabilitation.
In considering current sentencing practices, I have reviewed a number of sentences involving the charge of manslaughter. The circumstances of individual cases vary greatly and as a consequence there is a significant variation in sentences imposed. Your offending is grave because it involved the loss of a human life, nevertheless the culpability of your offending is reduced by the circumstances of the offending in the sense that the ultimate cause of death was heart failure caused by your assaults with a weapon, but assaults that inflicted injuries that the prosecution concede in and of themselves were not life-threatening.[42]
[42]Prosecution opening address, Transcript at 127.4.
I take into account your actions in part were motivated by the concerns of a mother, anxious to ensure her son attended school with the appropriate uniform. Your attendance at Mr Matthews’ residence at 2.30am, whilst late, was motivated by a desire to obtain a red t-shirt for your son. There was no planning to your actions and I accept the timing of your attendance at Mr Matthews’ residence early in the morning was in part motivated by a desire to avoid a confrontation with him; nevertheless, your attendance at the property was unlawful. I accept that, in part, your actions were spontaneous.
Your offending is deserving of condemnation, such that a custodial sentence is appropriate. I reject the submission made by your counsel that a non-custodial sentence beyond time already served is appropriate or within the range of sentencing options available to me. I was referred to the Victorian Court of Appeal decision of Boulton v The Queen.[43] I do not consider a community corrections order, even for a lengthy period of time, is an appropriate sentence in the circumstances of your offence.
[43][2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborne JJA).
In my opinion, a more suitable sentence is the imposition of a term of imprisonment and the setting of a non-parole period. I note the purpose of parole ‘is to provide for mitigating of the punishment of the offender in favour of [her] rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that [she] must serve having regard to all the circumstances of the offence. Parole is said to serve the offender, by assisting with rehabilitation and providing an incentive to behave well in prison, as well as serving the interests of the community’.[44] In determining the level of punishment necessary to reflect the community’s condemnation for your offence, I take into account your hardship in serving a term of imprisonment caused by the separation from your three elder children. I also take into account the opinion of Ms Matthews that a positive rehabilitative factor for you is your ability to be able to have your son, Alexander, with you during any period of incarceration.
[44]Boulton v The Queen [2014] VSCA 342, [200] (Maxwell P, Nettle, Neave, Redlich and Osborne JJA).
Taking into consideration the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act 1991, and having regard to the principles of parsimony, proportionality and just punishment, on the charge of manslaughter, I sentence you to imprisonment for a period of four years. I fix a period of two years and six months as the period you must serve before becoming eligible for parole.
I declare that your pre-sentence detention is a period of 171 days, including this day, and I direct that such period be reckoned as a period of imprisonment already served pursuant to s 18 of the Sentencing Act 1991.
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