R v Tovey - [2023] VSC 530

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0389

Between:
THE KING
-and-
JESSE TOVEY	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF SENTENCE:	5 September 2023
CASE MAY BE CITED AS:	R v Tovey
MEDIUM NEUTRAL CITATION:	[2023] VSC 530

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CRIMINAL LAW — Sentence — Manslaughter — By unlawful and dangerous act — During altercation, accused stabbed brother to chest, root of neck, and each shoulder — Brother fled, collapsed in nearby carpark — In transit to hospital, brother died from stab wound to chest — Accused left scene believing brother would be “pretty sore” but “alright” — Later, after hearing brother died, accused disposed of knife — Two weeks earlier, brother struck accused to head with mallet — Brother sent threatening texts to accused, who responded in kind — Circumstances of stabbing unclear — Accused initially charged with murder but later pleaded guilty to manslaughter — Guilty plea entered in face of arguable defence (self‑defence) — Remorse — Accused exposed to family violence and illicit drug use from early age — Sexually assaulted as a child — Illicit drug use since teenage years — Criminal history for various offences, including breaches of family violence orders and minor violence — Limited work history — Hardship in prison because of PTSD and pandemic restrictions — PTSD likely to worsen in prison — Notwithstanding history of offending and drug use, good prospects of rehabilitation — Totality requires recognition of loss of 100 days’ pre‑sentence detention on manslaughter through service of other sentences while on remand — Relevance of sentencing purposes — Parsimony — Current sentencing practices — Sentence of eight years and three months’ imprisonment with non‑parole period of five years — But for plea of guilty, sentence of eleven years’ imprisonment with non‑parole period of eight years — Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Moran	Abbey Hogan, Solicitor for Public Prosecutions
For Mr Tovey	Mr J Saunders	Valos Black & Associates

HIS HONOUR:

Overview

Early on the morning of 18 January 2021, in the course of an altercation out the front of their mother’s home, Jesse Tovey used a knife to stab his older brother Joshua Tovey to the chest, the root of his neck, and the back of each shoulder. His brother fled to a nearby carpark, where he collapsed. Sadly, as a result of the damage done by the stab wound to his chest, he later died as he was about to be airlifted to hospital. He was only 29.

Immediately after the stabbing, Jesse Tovey was driven away from the scene by another. At that time, he did not realise how badly his brother had been hurt. As he told a friend soon afterwards, he thought he would be “pretty sore” but “alright”. However, when he heard that his brother had died, he discarded the knife…

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 Tovey

Details

AGLC: R v Tovey [2023] VSC 530
Case: [2023] VSC 530
Decision Date: 5 September 2023

CaseChat Overview and Summary

The accused in this case was convicted of manslaughter following a stabbing incident during an altercation with his brother. The victim, the accused’s brother, sustained multiple stab wounds and later died from a stab wound to the chest. The accused, who had a history of exposure to family violence, illicit drug use, and criminal offending, initially pleaded not guilty to murder but later changed his plea to manslaughter. The court had to determine the appropriate sentence for the manslaughter charge, taking into account various factors such as the circumstances of the offence, the accused's background, and the principles of sentencing under the Sentencing Act 1991.

The legal issues before the court were the appropriate sentence for manslaughter, considering the totality principle, the accused's background and prospects for rehabilitation, and the principles of parsimony and current sentencing practices. The court was required to balance the seriousness of the offence with the accused’s personal circumstances and the objectives of sentencing, which include punishment, deterrence, and rehabilitation. The court also had to consider the impact of the accused’s plea of guilty on the sentencing.

The court held that the appropriate sentence for the manslaughter charge was eight years and three months’ imprisonment with a non-parole period of five years. The court acknowledged the accused's difficult background and his prospects for rehabilitation, but also recognised the seriousness of the offence. The court took into account the totality principle, reducing the sentence due to the accused's pre-sentence detention. The court also considered the plea of guilty, which would have resulted in a harsher sentence but for the accused's plea. The court concluded that the sentence should reflect the seriousness of the offence, provide for appropriate punishment and deterrence, and offer the accused a chance for rehabilitation.

The final orders of the court were that the accused be sentenced to eight years and three months’ imprisonment with a non-parole period of five years. The court also ordered that the sentence reflect the loss of 100 days’ pre-sentence detention on the manslaughter charge through service of other sentences while on remand.

Orders