R v SV
[2012] VSC 478
•17 October 2012
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0050 of 2012
| THE QUEEN |
| v |
| SV |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2012 | |
DATE OF SENTENCE: | 17 October 2012 | |
CASE MAY BE CITED AS: | R v SV | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 478 | |
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CRIMINAL LAW – Manslaughter – Plea of Guilty – Youth Offender – Single stab wound – Good prospects of rehabilitation – No prior convictions – Remorse.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Rochford SC | Office of Public Prosecutions |
| For the Accused | Mr S. Johns | Victoria Legal Aid |
HIS HONOUR:
SV, on 2 August 2012 you pleaded guilty to the manslaughter of Mrs Rosa Mercuri on 3 July 2011. You were born on 1 October 1996, which means that you were 14 years of age at the time and that you are now just 16.
Your youth will be a major feature of this sentence. The maximum term of imprisonment for the offence of manslaughter is twenty years. That maximum is a reflection of how our community regards any offence which leads to the taking of the life of another.
I did not receive any victim impact material in this case. We must recognise that some families will prefer not to engage directly in the sentencing process. That they have the right to make that decision is important. I do not proceed, however, on the basis that a crime such as this is not devastating to a family who in a few seconds have lost a wife and a mother, and the extended family of Mrs Mercuri are also significantly affected by your conduct.
They would all wish for the one thing which I cannot do, and that is to restore Rosa Mercuri to them. There is nothing I can do which will give them much solace, particularly since you are to be sentenced as a child.
This is yet another case where the availability of knives to young people through the internet and elsewhere has been shown to be a blight on our community. Many, if not most, knives are deadly weapons, as this and other cases show. The young seem to have an entirely inadequate appreciation of that fact. The legislature and the police have taken action to reduce the number of knives in the community, but there seems to me a very important role to be played by parents in preventing their children buying and having knives and in particular from carrying them. I do not single you out for any special treatment on this issue, but young men and women like you have to understand that if damage is done to others in the community by the use of weapons, it will be met with increasingly severe punishment.
That leads me to outline the events which bring you here. They of themselves show the dangers I have just been discussing. Mrs Mercuri lived with her husband, Pasquale, and her children Damian, Adam and Chloe at 31 Tunbridge Crescent, Lalor, where the family have lived for 18 years.
At about 3.15pm on Sunday 3 July 2011, you arranged to meet up with some friends Danny Tran, Dillon Khamsomphu and Ron Nguyen. Your friends had met at the Thomastown Railway Station and you arranged to meet them at “1 Billiards Club” in Lalor, which you did. You played billiards for about an hour before going down to the restaurant below.
While at the restaurant, the topics of “Who do we hate?”, which later became “Who hates us?”, came up. You suggested that Damian Mercuri hated you and that with his brother Adam, they had recently been bullying you as you and a friend walked past their home on your way home from school. The group discussed the possibility of egging Damian and Adam’s house in return.
During that discussion, Dillon produced a knife which he had brought along. It was a black Redback tanto shaped knife with a sheath or cover. The knife was 23.5cm in length with an 11cm blade.
After leaving the restaurant, you and your friends spent some time walking around the shops and local park before catching the train to Epping and going to Epping Plaza. By then it was becoming dark.
At about 6.30pm, your group purchased six dozen eggs at the Coles Supermarket. You then took the bus to Lalor and visited your friend in Tunbridge Crescent, but he did not join in your escapade. At about 8:00pm, you went to the Mercuri house and you were given the knife which had been produced earlier. On your instruction, each of you threw two eggs at the house, striking the house, the carport and the Mercuri family car.
Mr and Mrs Mercuri and their daughter Chloe came out to see what was happening. They saw the results of the egging and noticed your group in the distance. Mr Mercuri and Chloe drove up the street in the family station wagon to see if they could work out who you were.
When your group saw the car, you split up. You and Ron went towards Dalton Road, Dillon and Danny ran along Darebin Drive. Chloe and her father got out of the car and chased Danny. Chloe caught up with him, but after slapping her and throwing the remainder of the eggs at her, he escaped and Chloe went home.
Mr Mercuri returned home looking for Chloe, and Mrs Mercuri suggested the three of them get into the car to see if they could find your group. They eventually saw you when they got to Darebin Drive. Mr Mercuri got out of the car and shouted at you. You and the others then ran up Curtain Avenue. Mr Mercuri got back into the car and they caught up with you. You all split up. You and Dillon finished up in the front yard of 97 Curtain Avenue and Ron in the front yard of No.95. You and Dillon decided to make a run for it and, when you said “run”, Dillon ran out into Curtain Avenue and was chased by Chloe. You remained and stayed on the driveway. You armed yourself with the knife, which you had taken out of your back pocket and removed its cover. Chloe returned to her mother as her mother saw you and came towards you and said “We’ve got you”.
She ran at you and stopped. You had the knife in front of you. You later said that you got slapped on the head and then stabbed Rosa Mercuri in the right upper breast. You pulled the knife out and ran away down Curtain Avenue. Chloe thought you had pushed her mother over and that she had tripped. Mrs Mercuri staggered along the footpath and collapsed outside 95 Curtain Avenue.
While Pasquale and Chloe Mercuri were seeking assistance from emergency services, it became apparent that Mrs Mercuri had been stabbed. When the paramedics attended, they were unable to resuscitate Mrs Mercuri and she died at the scene.
You had managed to get away and met up with Dillon and started trying to find Danny using your phone. You told him you had just stabbed a lady.
You rang your brother and arranged for him to come and pick you up, which he did, and you also met up again with Danny.
All of you went back to your home in Bundoora. When in your room, you showed Danny the knife. The tip was covered in a liquid and you said to him “It’s dried blood, you dickhead”.
Your brother took the knife at your request to get rid of it. He threw it into the Edwardes Lake in Reservoir, where it was later recovered by the police.
You arranged for Danny to shave your head to alter your appearance. At your request, your father drove you, Dillon and Danny to Danny’s house.
After arriving at Danny’s house, it soon became known that Mrs Mercuri had died. After you had left with your brother, Danny and Dillon had decided to contact the police.
Ron Nguyen had been recognised at the scene and was arrested, and when at the Mill Park Police Station, he nominated Dillon and Danny as being involved. In turn, they were taken to the Mill Park Police Station and told the police about you.
You were arrested at home at about 5.30am the next morning, where you were interviewed in the presence of your father. When interviewed, you told the police what had happened. You said:
·before you egged the house, Danny had given you a knife which you had in your pocket;
·that the owners of the house had chased you and your friends;
·you ended up hiding in a front yard by yourself;
·that the little girl had spotted you and then Rosa saw you;
·you were really scared and the only way out was the way Rosa was coming;
·you pulled the knife out and took it out of its cover;
·you stabbed her when she was running towards you;
·you remembered getting slapped in the head and then the knife went in;
·you ran off afterwards, meeting up with Dillon and Danny.
On autopsy it was found that Mrs Mercuri had died from severe blood loss as a result of a single stab wound to her upper chest which had damaged her right lung and aorta. The hold of life by all of us is tenuous.
It follows that this is a reasonably serious example of the offence. The matters in aggravation are that you were armed and that you had to prepare the weapon for use. On the other hand, particularly given your age, I am prepared to accept that you did not fully appreciate the consequences of your action and that you did not intend to kill Mrs Mercuri. I am also prepared to accept that you did not arm yourself with the knife for the direct purpose of hurting anyone. I am also prepared to accept that you acted out of panic and that, most of all, you wanted to escape.
In this case and to avoid any misinterpretation, there is and can be no criticism of the Mercuri family. They were entitled to pursue these youths and, if need be, arrest them. They did not anticipate that the consequences would be as dire as they became, and no reasonable person in their position would have so reasoned. This is not only an unjustified killing, it is an entirely senseless one.
On the plea I received a report from Carla Lechner, Clinical Forensic Psychologist, dated 24 July 2012 which was filed on your behalf.
I also received references from your brother Patterson, from Mr Hans Mulholland, the Deputy Principal of Reservoir High School, from Pongpao Peter Hiransi, President of the Thai Association of Victoria, Boonsom Uttan, President and Abbot of the Melbourne Thai Buddhist Temple Inc, and from Tina Lam, your cousin. In addition to the tendering of the reference, Mr Mulholland gave evidence on your plea and he strongly supported you.
You are now just 16 and were only 14 at the time of the offending. You have no prior criminal history. You are the youngest of three brothers. You were living at home with your father and brothers. Your mother returned to Thailand in about 2009 and she last visited in August 2011 shortly after these events. She comes to Australia about once a year. You speak to her on the telephone. You have had a close relationship with your mother when growing up and her absence has been significant to you, as she largely ran the family.
You were born in Australia, with both of your parents having been born in Cambodia and Thailand respectively. The family have been in the present family home for some years, but moved around a lot when you were younger and you attended four different primary schools. Your father is a factory worker who has worked long hours to support the family.
Your mother returned to Thailand for family, employment or business reasons, and she runs a small resort in Thailand.
For your secondary education you attended a new school for each year of your secondary schooling. Most recently you have been at Reservoir Secondary College.
You are good at graphics and would continue to study graphic design and architecture in the future. Both of your brothers are completing tertiary education.
You have used marijuana on occasion and did use alcohol until this offending, and you have not used either since. Your use of alcohol had been very moderate. You were not substance-affected at the time of this offending.
You have no underlying psychiatric or psychological difficulties. Miss Lechner reported that you have not reached cognitive maturity, which is not surprising given your age and experience. That finding does have a bearing on the sentence I will impose. Miss Lechner found that you were suffering from clinical depression and Post Traumatic Stress Disorder. These conditions are reactive to your situation, but demonstrate that you have taken both your offending and its consequences seriously. I do accept that you are genuinely remorseful and at a loss to explain why you did what you did. I regard your prospects of rehabilitation as being very good.
You have in the past done volunteer work in the Thai community and at the Thai Buddhist Temple.
You have pleaded guilty and did so at a relatively early date. I regard your plea as significant in the circumstances.
I called for a report as to your suitability for a Youth Justice Centre sentence and I have received a detailed and helpful report dated 28 August 2012. That report is favourable and finds you suitable.
As I have already observed, I regard your youth and immaturity as being very important. It has been made clear by the Court[1] that it would only be in the most unusual case that the importance of youth would be entirely extinguished as a sentencing consideration. Your case is not of that kind and your youth does mitigate the penalty you are to receive, but this is a serious offence.
[1]R v Azzopardi & Ors [2011] VSCA 372.
A number of cases were pointed out to me, in particular the decision of the Court of Appeal in JPR v R[2] in which the Court of Appeal imposed a three year Youth Justice Centre Order.
[2][2012] VSCA 50.
Although I have taken all the matters put on your behalf in mitigation, it cannot be avoided that this is a serious example of an unlawful and dangerous act manslaughter. Were it not for the fact that you were only 14 at the time of the offending, I would have imposed a much higher sentence.
It must be noted that you were almost certainly the instigator of the egging incident at the Mercuri house. You had chosen to go to the house with the knife. The knife itself was a quite dangerous one. Although you may have produced the knife in fear, you made the decision to do so, which involved removing it from the sheath. The difference between this case and a one punch manslaughter case is patent.
I have come to the conclusion that the maximum sentence of three years, which is the maximum Youth Justice Centre sentence available does not meet the needs of sentencing in your case. I make it clear, as I have already said, that an adult in your position would have received a much higher sentence than that which I am about to impose on you.
The report provided by the Department of Human Services is favourable and supportive, and reports that you are a vulnerable and impressionable young man and although you are showing some signs of maturity, you would be at risk in the adult prison system. Pursuant to s 471 of the Children, Youth and Families Act 2005, the Adult Parole Board would have power to transfer you to the Youth Justice System. I recommend to the Adult Parole Board that the Board transfer you accordingly.
The Adult Parole Board have been made aware of your case and I am told that they will be in a position to consider my recommendation at an early date.
Taking into account all the matters put on your behalf balanced with all other sentencing considerations, I sentence you to be imprisoned for five and a half years and I order that you serve a period of three years before you are eligible for parole.
I state that were it not for your plea of guilty, I would have sentenced you to be imprisoned for seven and a half years with a non parole period of five years.
I declare that you have already served 76 days pursuant to the sentence by way of presentence direction.
I order the above statement and its details and the above declaration and its details be entered into the records of the Court.
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