R v T Y

[2005] VSC 109

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1467 of 2004

THE QUEEN

v

TY

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21-24, 28 February 1-2, 11 March 2005
DATE OF SENTENCE:	20 April 2005
CASE MAY BE CITED AS:	R v TY
MEDIUM NEUTRAL CITATION:	[2005] VSC 109

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Criminal Law – Sentencing – Murder – by youth aged 14 through the thrust of an umbrella to the victim’s head – 14 years’ imprisonment – 9 years’ non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Mr M. G. O’Connell	Dowling McGregor Thomas

HIS HONOUR:

1. You have been found guilty by a jury of the murder of Christopher Williams.  I will refer to him after this simply as Christopher.  Christopher died from a brain injury.  He suffered that injury when he was struck a penetrating blow by you with the tip of an umbrella.  The injury was inflicted on 21 October 2003, at around 3 p.m., at a tram stop in Mt Alexander Road, Essendon.  Christopher died four days later.  He was then aged 18.

1. You were then aged 14.  You were at the tram stop with friends.  One of your friends had been told by his mother to carry the umbrella because of the weather.  You had taken over the umbrella.  You had held it long enough to know that it was sturdy and that it had a steel tip. 

1. While walking to, and while you were at, the tram stop, you had been mouthing off offensively to people who were nearby.

1. Christopher came to that tram stop with four of his teenage friends.  They had been celebrating the last day of school.  They were in a happy frame of mind.  The one female in the group had taken the scissors to her school uniform.  Most people would have seen that as a bit of fun.  You chose not only not to do so, but also to take the chance to mouth off further.  You did so by directing critical comments at the young woman.  You raised your voice to taunt her.  You called her a disgrace and a slut.  Christopher and his friends showed a reluctance to respond.  When you persisted with your taunting, Christopher responded in the mildest way.  He asked you a question as to what you had said.  You responded to that question by taking the umbrella and thrusting its tip at Christopher’s head.  It is not clear whether that thrust missed or whether it connected only mildly.  Almost immediately after the first thrust, you thrust again with the umbrella tip at Christopher’s head.  Regrettably, that second thrust penetrated his skull and his brain.  It caused an inevitably fatal injury.

1. I find that the jury would have concluded that, at the time of that thrust, you had formed the intention to really seriously injure Christopher.  It was a forceful second thrust with a piece of steel, which was always capable of being, and which proved to be in these circumstances, a lethal weapon.  Moreover, being at head height, it was at a most vulnerable part of the body of a defenceless young man.

1. Before I turn to your personal circumstances, I want to speak of Christopher’s family.  I have read the victim impact statements of each of his mother, father and of Garry, one of his brothers.  I am conscious that the preparation of each statement must have been a traumatic experience.  There are difficulties in assessing what can and cannot, what should and should not, be included.  I have been conscious in this trial, far more than in most other trials, of the suppressed emotion in the courtroom, and of the large number of young adults who have been in court.  I can infer that some are thinking: Why did it have to be Christopher? And that others are thinking: It could so easily have been not Christopher, but me.  A sentencing judge can be aware of such thoughts and such emotions.  But I must sentence according to established principles.  Those principles require me to focus primarily on the offence and the offender.  I am still very conscious of the pain for the survivors.  There is pain in the memories of what Christopher had been, and what he had done.  There is pain in the thinking about what Christopher might yet be and do, had it not been for his untimely death.

1. I turn to you.  You are now 16 years of age.  As I noted earlier, you were but 14 when you committed this murder, which was unquestionably a very serious offence.  It is a fundamental sentencing principle that requires me to treat your youth as a most significant mitigating factor.

1. It is troubling that you have had two appearances in the Children’s Court.  There are indications that the actions which brought you into that Court and this one are linked to your dysfunctional family.  I have read carefully two reports prepared last month.  One is from Dr List, a psychologist.  The other is from Eva West, a parole team co-ordinator.  Those reports contain material which bears not only on your family situation, but also on other relevant issues, including remorse, and the prospects of rehabilitation.  I can accept that, because of the violence and other abuse you were exposed to at home, you came to treat violence as an appropriate response to a situation where you were, or where you perceived that you were, challenged.  All the indications are that you have, through counselling and other programs, come to realise how inappropriate violence must be, and how horrendously inappropriate it was in October 2003.  You have also engaged in appropriate courses, as evidenced by the certificates tendered on the plea.  The signs of rehabilitation revealed in the report of Eva West and otherwise are most encouraging. 

1. For reasons that include what is said in the reports and your preparedness to plead guilty to manslaughter, and how your defence was conducted, and how you conducted yourself in court, I accept that you are truly remorseful.

1. Because of your age and your commendable response to rehabilitative measures in the Juvenile Justice Centre, the indications are that you and the community will benefit from your spending as much time as possible in youth training, rather than in an adult prison. To that end, I have scheduled this sentencing on a day when the Adult Parole Board is meeting. My associate has remitted to the Board sufficient papers to enable the Board today to consider the exercise of its power under section 244 of the Children and Young Persons Act.  She will shortly email a copy of these sentencing remarks.

1. I have signed orders for retention and disposal, there being good reasons and no objection to my doing so.  I impose a sentence of imprisonment of  14 years.  I fix a non-parole period of 9 years.  I declare the period of pre-sentence detention to be 548 days to today.  I direct that that be entered in the court records.