R v Romero
[2009] VSC 376
•3 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1401 of 2009
| THE QUEEN |
| V |
| JAMES RONALD ROMERO |
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JUDGE: | WHELAN J | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 12, 13, 17, 18, 19 August & 2 September 2009 | |
DATE OF SENTENCE | 3 September 2009 | |
CASE MAY BE CITED AS: | R v Romero | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 376 | |
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CRIMINAL LAW – Sentence – Murder – Victim stabbed 3 times – Remorse – Minor priors – Total effective sentence 18 years – Non-parole period 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr D Brustman | Tony McCaughey |
HIS HONOUR:
James Ronald Romero, on 19 August 2009 a jury found you guilty of the murder of Lachlan Howie.
I heard a plea in mitigation on your behalf on 2 September 2009.
The maximum penalty for murder is life imprisonment.
The circumstances of your offending can be summarised as follows.[1]
[1]I am bound to sentence the accused on a factual basis which is consistent with the jury’s verdict. Otherwise, in relation to matters adverse to the accused, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in his favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].
Friday 6 June 2008 was your 24th birthday. You had arranged a barbeque to celebrate, and you had invited some young people to attend, including your cousin, Wayne Romero. They did not turn up.
That evening you went to a house in Chiltern rented by Wayne Romero and his friend, Ricky Lappin. You took with you a bottle of Jim Beam, Coca Cola and a bag of ice cubes.
You were disappointed about your barbeque. You said to Wayne Romero something to the effect that you wanted to get into a fight and punch the shit out of someone. Wayne Romero suggested you punch the shit out of him, and at some stage the two of you had a couple of wrestles, which he described as friendly.
During the course of the evening, about 10 to 12 other young people came to the house, bringing alcohol with them. One of them was Lachlan Howie, a 16-year-old high school student. You spent much of the evening sitting on a chair in the lounge room playing on a Nintendo Wii.
You drank Jim Beam and Coke during the night which you mixed yourself. You said in your record of interview that you were drunk. I accept that you were.
Late in the evening, Lachlan Howie and his friend, Leon Allen, were on a two-seater couch near you in the lounge room. Two other young people, Skye Clements and Hayley Finlayson, were on another couch a short distance away. Another young person, Ben Quigley, was in a single chair next to the chair you were sitting on.
The other young people were either outside or elsewhere in the house at the time.
There was a domestic knife on a plate by the side of your chair. There is no evidence as to how the knife got there. The blade of that knife is approximately 20 centimetres long. It is similar to other domestic knives in the kitchen of the house. It is a knife designed for use in food preparation, not eating.
The four young people to whom I have referred (Leon Allen, Skye Clements, Hayley Finlayson and Ben Quigley) witnessed the stabbing. They each gave evidence in the trial. Their accounts of the incident, and of the events leading up to it, were not entirely consistent. This is unsurprising.
In referring to the eye witness accounts I refer to the deceased by his first name. Both you and the deceased were referred to that way throughout the trial by the witnesses and by counsel.
According to Leon Allen, you had behaved in a threatening manner earlier in the evening with a bottle and with the knife. His evidence was that Lachlan was distressed as a consequence. He also said that Lachlan twice said that he was going to bash you, although he suggested that was said in a way which indicated he was not being serious. Leon Allen said that just before the fatal incident he and Lachlan were sitting together on the couch. He said Lachlan wanted to get up and he was telling him not to. He said that Lachlan got up out of the couch and walked towards you. He said you jumped up and stabbed him. He said Lachlan was stationary when you stabbed him and that he had his hand out in a gesture suggesting he was offering to shake hands.
According to Skye Clements, at one point you had got up out of your chair, and Lachlan had sat down in that chair. She said you told him to get out of the chair, and Lachlan responded by saying sarcastically “I’ll fight you for it”. She said you grabbed Lachlan by the shirt and pulled him out of the chair. According to Ms Clements, you also said “see that knife there, I’ll put it straight through ya”, and that Lachlan then went and sat on the couch. She said Lachlan and Leon Allen talked, and then Lachlan got back up, walked over to you and put out his hand to shake your hand. She demonstrated this motion by outstretching her right arm with an open hand at about waist height. She said you got up and threw what seemed to be punches at Lachlan. She said you stabbed Lachlan three times.
According to Hayley Finlayson, she looked across because of something Skye said and saw Leon Allen telling Lachlan to sit because Lachlan was going to get up. She said something to Skye and when she looked back Lachlan had walked over and was looking at you. She said you jumped up and made movements like you were punching Lachlan three times. She said she saw the knife. When asked if Lachlan’s hand was outstretched she said she couldn’t remember.
According to Ben Quigley, at around midnight you and Lachlan started “having a go at each other”, in a verbal way, and that you were angry. He said Lachlan had a smoke outside, and then returned to the same seat. He said Lachlan stood up and was standing near the fireplace. He said you then jumped up and started stabbing Lachlan. Ben Quigley said he got up and grabbed you around the neck for a short time before releasing you. He was asked about someone having said “I’ll stab you” and he said that was not said by anyone. He did not give evidence of any hand shaking gesture.
I am satisfied to the requisite standard that you were annoyed and aggressive from early on that night. I am satisfied that there was conflict between you and Lachlan Howie before the fatal incident. I am satisfied that Lachlan Howie did approach you immediately before the incident. I am satisfied that he was stationary in front of you with his hand outstretched when you attacked him.
You grabbed the knife from the plate on the floor. You stabbed Lachlan Howie three times; twice on the front of the left side of his chest, through his left lung and heart; and once on the lower front right chest area, through his diaphragm and liver.
In your record of interview you suggested a number of times that the knifing occurred during what you described as a “scuffle” with Lachlan Howie. On the evidence I have heard, that suggestion is false, and I reject that aspect of your account.
You suggested to a psychologist, Mr David Ball, whose report was tendered on the plea, that Lachlan Howie threatened to stab you or to get another person to “get you”. On the basis of the evidence before me, that is also false and I also reject that suggestion.
In your record of interview you suggested that you were fearful for your own safety when Lachlan Howie came towards you.
It is a necessary conclusion from the jury’s verdict that you did not subjectively believe you were facing a threat of death or really serious injury, and that either you did not believe you were facing any threat which necessitated the response you gave or, if you did, you did not have reasonable grounds for that belief.
On the plea your counsel and counsel for the prosecution made submissions on the issue of whether you perceived any threat as emanating from Lachlan Howie prior to your attack. Your counsel relied on the evidence of Skye Clements, Hayley Finlayson and Leon Allen. He submitted this evidence indicated that on any view there was “mutual goading”, and that whilst the jury had rejected self defence that was not inconsistent with a finding that you did perceive there to be some threat. Counsel for the prosecution submitted that I should find there was no perceived threat and that when Lachlan Howie approached you he did so in a demonstrably conciliatory manner with his hand outstretched.
I am satisfied that there was some “goading”, as your counsel put it, on Lachlan Howie’s part. It may have been in jest, but jests can be misinterpreted. I am also satisfied that when he approached you his hand was outstretched, as Skye Clements and Leon Allen said it was. Again, however, such actions can be misinterpreted.
I accept that you did perceive some threat. Your reaction to that perceived threat was shocking in its violence and was completely and utterly unjustified.
After the stabbing you walked out the front door with the knife in your hand. Some evidence suggested as you walked out you said something about being a gangster (or a “gansta”). I am not satisfied beyond reasonable doubt that you made that comment.
You went home on foot, discarding the knife on the roadside along the way. You were arrested at home soon afterwards.
Back at the house, the police and ambulance officers had arrived. Despite their efforts, Lachlan Howie died as a result of the stab wounds to his chest which you had inflicted.
In finding you guilty of murder the jury must have been satisfied that when you stabbed Lachlan Howie, you intended to kill or to cause really serious injury. I proceed on the basis that your intention was to cause really serious injury.
I turn to your personal circumstances.
Your mother relinquished you for adoption when you were an infant, and your maternal grandparents took you into their care. They separated while you were growing up. Your closest relationship is with your grandfather. Your mother visited you weekly while you were growing up. You have had very little contact with your father. I was told your mother and father have been in court during your trial and plea.
I was told that you were bullied at school. You completed Year 8. Your ability to read and write is very limited.
After leaving school you worked at a meat works factory for two and a half years, and then had various manual jobs; painting, at a vineyard, and bricklaying. For the past five years you have received Centrelink benefits. You have acted as a carer for your grandfather.
Your prior convictions are minor. In 1999, at the age of 15, you were found guilty without conviction of one charge of theft and were released on six months probation. You were convicted of four offences in 2006 at the age of 22. Those offences were theft of a motor car, being an unlicensed driver, learner driver driving without full licence, and failing to display “L” plates. I was told on your plea that there were a number of Children’s Court dispositions when you were aged 14 and 15, which your counsel said concerned minor fights arising out of bullying to which you were subjected at school. He said because of these Children’s Court matters it could not be submitted that you have no history of violence at all.
On the plea your counsel tendered a report from the forensic psychologist, Mr David Ball. In his report Mr Ball says that he observed no evidence of “frank mental illness”. He says you expressed limited insight into your offending. Mr Ball tested your intelligence and literacy. He assessed you as having a full scale IQ of 72 which he says places you in the “borderline” range. Your counsel relied upon these results,[2] and I accept his submissions in relation to them. They do go some way towards explaining and mitigating your conduct in the fatal incident, and your subsequent reaction to that conduct. In Mr Ball’s opinion, your history indicates a lack of sound judgment, consequential thinking and insight. He believes you have expressed genuine though rudimentary and immature regret and remorse for your behaviour. Mr Ball reports that you are currently suffering symptoms of post-traumatic stress disorder.
[2]It was not suggested that this was a case to which the principles discussed in R v Verdins [2007] VSCA 102 and R v Tsiaras [1996] 1 VR 398 apply.
Your counsel also tendered six testimonials. One was from your grandfather and the rest were from family friends and a close relative. They describe you as an honest and caring person, and suggest your behaviour in relation to this incident is out of character. They refer to an incident where you may have saved the life of a trapped person.
Counsel for the prosecution tendered a victim impact statement by Lachlan Howie’s father, Graham Howie, on behalf on himself; his wife, Kay; and his surviving son, Warrick.
Mr Howie writes lovingly of his son. He writes: “Locky was a gentle, thoughtful and loving son, with a lovely smile and infectious laugh.” His statement reveals a family stricken with grief. Mr Howie writes: “I feel as if someone has thrust their hand into my chest and is squeezing and twisting my heart.”
Both Mr Howie and his wife had pre-existing health problems. Medical reports are annexed to the victim impact statement. The trauma they have undergone, and the despair and distress they have suffered, and continue to suffer, has exacerbated their suffering as a result of their pre-existing conditions. In this regard I accept Mrs Howie’s physician’s advice that there is no scientifically demonstrated link between her medical condition and the death of her son, but that stressed and depressed persons with illness have a poorer prognosis. The medical reports reveal that both Mr and Mrs Howie have suffered very significant stress and depression.
Mr Howie’s victim impact statement also reveals that Warrick, the deceased’s older brother, has suffered and continues to suffer terribly as a result of his brother’s loss. The suggestion is that he has somewhat lost his way as a consequence. One can only hope that will not continue to be the case.
You were 24 years old at the time of the offence, and are now aged 25. I do not consider that you are properly to be seen as a youthful offender[3] but you are still relatively young and I do take that into account.
[3]R v Mills [1998] 4 VR 235, 241. It was not submitted by counsel for the accused that the principles in R v Mills apply here. If it had been, the principles in DPP v Lawrence (2004) 10 VR 125, 132 would have also applied.
You have never been imprisoned before. Your prior convictions are, for present purposes, minor. Mr Ball says you have the capacity to respond moderately well to rehabilitative efforts. You do have family support. You are not an habitual abuser of drugs and alcohol. My assessment is that you have reasonable prospects of rehabilitation, particularly if you take advantage of such educational and training opportunities as are offered to you in prison.
I accept that there was no premeditation in your offending, and in particular that you did not bring the knife to the party.
I also accept that you are remorseful. I am satisfied of this because of your police interview, Mr Ball’s professional opinion, and the way your trial was conducted. In particular, I refer to the fact that your counsel invited the jury to convict you of defensive homicide, rather than acquit you altogether.
You co-operated with police. You told them where the knife was located and made admissions in your police interview. I do not accept that you gave them as full and accurate an account as you were able to give. In the record of interview you often responded to questions by saying you were unable to recall. It seems to me that you particularly had recourse to a professed lack of recall when it was necessary for you to address your use of the knife.[4] Your counsel submitted that this was a consequence of your limited insight and your limited intellectual capacity. I accept that, but my conclusion is that it is also a consequence of your own appreciation of how unjustified your actions were and of an attempt on your part to make them seem less reprehensible. You also suggested in your record of interview that the stabbing occurred in the course of a “scuffle”. I have found that the stabbing did not occur during any “scuffle” with Lachlan Howie.
[4]See Record of Interview questions: 25, 142, 144, 146, 149-50, 158-61, 163-4 and 278-80.
Both you and the deceased were intoxicated. I accept your counsel’s submission that in this case your intoxication is not an aggravating feature,[5] nor is it a mitigating factor.[6]
[5]Cp. DPP v Joyce [2007] VSCA 215 at [34].
[6]R v Redenbach (1991) 52 A Crim R 95. Counsel for the accused in effect disavowed reliance on intoxication as a mitigating factor. See transcript 2/9/09 page 23.
I have reviewed the sentencing statistics for murder. I have considered the sentences to which I was referred by the prosecution,[7] and some other recent sentences.[8] At my request, the prosecution made a submission as to the appropriate sentencing range. The range submitted was 20 to 22 years, with a non-parole period of 16 to 18 years. The cases relied upon by the prosecution do not support that submission. Indeed, in each of the cases cited by the prosecution the sentence is below the bottom of the suggested range.
[7]Counsel for the prosecution cited R v Athuai [2007] VSCA 2; R v Lam & Ors [2008] VSCA 109; R v Imadonmwonyi [2008] VSCA 135; R v Rattya [2008] VSCA 149; DPP v Tran [2008] VSCA 158.
[8]R v Baker [2008] VSC 390; R v Brooks [2008] VSC 70; R v Acuna [2008] VSC 351.
You have been in custody since the murder. I declare that the period of 452 days is to be reckoned as already served.
You have committed murder, the gravest offence known to our law. You have destroyed one young life, that of Lachlan Howie. You have severely damaged the lives of all those who were close to him.
On the count of murder, I sentence you to 18 years’ imprisonment. I fix a non-parole period of 15 years.
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