R v TSL and Ts

[2000] VSC 357

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1487 of 1999

THE QUEEN

v.

TSL & TS

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	31 JULY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 357

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CATCHWORDS:      Guilty plea to manslaughter – Guilty plea to burglary and assisting an offender – Young offenders – Violent attack upon victim – Sentence of imprisonment – Transfer to youth system – Youth supervision order.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Rapke QC	Office of Public Prosecutions
For the Accused TSL	Mr. J. Smallwood QC	Jones and Dowling
For the Accused TS	Mr. D. Drake	Victoria Legal Aid

HIS HONOUR:

1           TSL, you have pleaded guilty to the manslaughter at Dandenong North in the State of Victoria on 4 August 1999 of a woman named Phetsourine Visisombat.  It is now my responsibility to impose sentence upon you.

2           In the somewhat unusual circumstances of your case some explanation of the background against which your plea was entered is required.

3           You were arraigned before a jury in this court on 15 May of this year, charged with the murder of Mrs Visisombat.  You pleaded not guilty and the trial commenced.  In due course evidence was given by the pathologist who conducted a post-mortem examination of the body of the deceased as to the number, character and effect of the various injuries sustained by her.

4           At the conclusion of the evidence-in-chief of that witness, the proceeding was temporarily stopped for a mid afternoon break.  Shortly before the jury was to return to the court, I was informed that you were evidencing extreme distress and an adjournment until the following day was sought.  In the circumstances, and particularly in view of your age, I acceded to this request and the matter was stood down.

5           It appears that for the first time you had been directly confronted with the detail of the injuries that you had caused.  I accept that, as you listened to the evidence, you became overwhelmed by a sense of appreciation of the enormity of what had taken place.  You discussed the situation with your legal advisers and your parish priest.  As a consequence, you made disclosure of some of the circumstances surrounding the death of Mrs Visisombat.

6           Your counsel then approached the prosecutor on your behalf with an offer to plead guilty to manslaughter as that appeared, on the basis of your instructions, to be the appropriate charge.  With your consent, he conveyed your description of events to Mr Rapke, who approached the Director of Public Prosecutions, who then determined that the acceptance of such a plea would be appropriate in the circumstances, having regard to the available evidence and to the standard of proof applicable in a criminal trial.

7           In the context of this case, the prosecution in accepting that course must be taken to have accepted that it could not be established beyond reasonable doubt that you went to the home of the deceased with an intention to kill her or to cause serious injury to her or that you possessed either of those intentions when performing the actions which caused her death.

8           The crime of manslaughter, to which you have pleaded guilty, can be formulated in a number of different ways as a legal concept and it can arise in a wide variety of circumstances.  In your case, it was committed through the performance of what is termed an unlawful and dangerous act and in circumstances that represent a particularly serious example of it.

9           Briefly described, it appears that in the early hours of the morning of 4 August 1999 you went with your younger sister, TS, to the home of the deceased anticipating that she would not be present.  As you were a friend of her daughter, you were aware that Mrs Visisombat frequently gambled at the Crown Casino at night, returning home at an extremely late hour.  Expecting that she would be so engaged on this night, you went to the house with the intention of stealing.

10          As it transpired, the deceased was at home and it appears that, on becoming aware of the presence of intruders in the premises, she went to the kitchen where she obtained a knife.  According to your version of events, upon seeing your sister and yourself, the deceased then threw the knife in your direction before taking hold of you.  Your sister attempted to get her to release her grip by throwing objects at, and then striking at, the deceased with a bamboo stick.  Mrs Visisombat then released her grip on you and grabbed TS.  A struggle then took place in the course of which you attempted to free your sister by pulling on a scarf that Mrs Visisombat was wearing around her neck.  You stated that, being unable to effect the release of TS by this means, you picked up the knife to which I have earlier adverted and repeatedly stabbed Mrs Visisombat, inflicting wounds to a number of different parts of her body.

11          At that stage you made good your escape from the premises, leaving the deceased mortally wounded on the floor.  It is evident that a protracted struggle must have taken place, in the course of which a considerable measure of violence was employed by you.  The injuries occasioned by the use of the scarf suggest the application of considerable force and more than 30 stab wounds were inflicted.

12          Your counsel, Mr Smallwood, has submitted, as I understand the thrust of his argument, that, having been intercepted by Mrs Visisombat, you acted more in fear and panic than in anger or in a controlled or directed fashion.

13          I accept for sentencing purposes, as that is the basis upon which the matter has come before me, that the version provided by you is to be regarded as reliable in its essential features.  However, I should add that there is much that remains unexplained, including the possible involvement of some other young person or persons in the events of that night.

14          With respect to what happened in the house the detail is limited.  But I consider that it is highly likely that, at the time you inflicted the fatal wounds upon the deceased, Mrs Visisombat, your sister and you were in a state of high emotion and that all were experiencing a mixture of powerful sensations of anger and fear.

15          There are clear indications in the history of your relationship with her that your selection of Mrs Visisombat as a victim of theft was probably influenced by your strong dislike of her.  I do not consider that it is necessary for present purposes to set out in detail the history of the development of the antagonism that existed between the deceased and yourself and which, I should also add, appears to have been mutual.  It is, I think, sufficient to state that Mrs Visisombat was concerned about what she perceived as your adverse influence on her daughter.  Whether or not her decision to do so was related to that concern is unclear on the material before the court, but only shortly prior to her death the deceased arranged for her daughter to live with her father in Switzerland and she was organizing the transfer of her own employment to Europe.  I am confident that you were deeply resentful of these actions and that your decision to go to her home that night was motivated, at least in part, by a desire to revenge yourself upon her in some way for breaking up your association with your friend.

16          It would, I think, be reasonable to infer that the deceased, whose home had been broken into only a short time previously, must have been alarmed on hearing intruders in the house late at night.  It is also reasonable, in my view, to infer that she would have become very apprehensive and angry on encountering your sister and yourself.  I correspondingly accept that the two of you were both very fearful and antagonistic when you realised that Mrs Visisombat was present.

17          You have, through the commission of acts of violence, brought about the death of a woman who was, when you intruded, sitting quietly in her own home watching a video-recording.  She, in common with everyone else in this community, was entitled to enjoy the sanctuary of that home in which you entered unlawfully and with a criminal purpose in mind.  When she attempted to apprehend your sister and yourself, and possibly to defend both her property and her person, as she was entitled to do, you responded with violence.  As a consequence of your actions an innocent person is irrevocably dead and her family and friends, as so often the case, are left with a deep sense of anguish and loss.

18          The courts must reflect in their response to the commission of such offences not only the seriousness with which they are regarded by our society but must also endeavour, insofar as they are able to do so through the imposition of appropriate sentences, to deter those who may contemplate acting as you have done.

19          Nevertheless, these are not the only considerations to be taken into account, and each occasion and each offender must be viewed in the light cast by all of the circumstances relevant to the individual offence and the perpetrator concerned.

20          With respect to your personal background then, you are the second eldest of 5 children in your family.  You were born in Western Australia on 11 October 1983, but resided in the family home which your parents purchased in the Dandenong area for approximately 12 years prior to the commission of your offence.  At that time you were 15 years of age.

21          Although your family history appears on the limited amount of information before me to be generally unremarkable, there are strong indications that you were, in the months leading up to the death of Mrs Visisombat, becoming extremely unsettled.  The genesis of this state of affairs has not been made clear.  However, its manifestations were obvious.  You had commenced to drink alcohol, you had smoked marijuana on occasions, you were playing truant from school and were staying out at night with a group of other young people with whom you had become associated.  This group included, it seems, the daughter of the deceased.  Your father had at one stage in response to this conduct ejected you from the family home on the basis that it would be to your benefit to know what life on the streets was really like.  Protective workers from the Department of Human Services then became involved and attempted to resolve the situation.  A voluntary adolescent community placement was arranged and you went into temporary foster care.  However, you returned home after only one day, that is, on 28 July, or approximately a week before the death of the deceased.  It is apparent that, for reasons concerning which I have been provided with little information, your personal situation was very unstable and you were very troubled.  Your conduct must be viewed against that background.

22          I accept that you acted spontaneously, using a knife that the deceased had taken from a drawer in the kitchen.  Although your sister and you appeared to have had with you in the house a bamboo stick and a small garden spade, they could not be reasonably viewed as substantial weapons, and do not reflect any intention to engage in violent or intimidatory conduct.

23          I accept that you may well have experienced a degree of panic, particularly when the deceased took hold of your sister.  And, of course, you are to be taken, the plea of guilty to manslaughter having been accepted by the prosecution, as not having intended to cause serious injury to Mrs Visisombat.

24          You are described by Dr Robert Adler, a consultant psychiatrist, who examined you for the purpose of providing a pre-sentence report to the court, as intelligent and articulate.  He detected no sign of depressive or psychotic illness and indicated that you demonstrated distress occasioned by a real sense of remorse.

25          I accept that you are genuinely remorseful for what you have done, and refer to the description earlier given as to the circumstances in which your plea of guilty was entered.  That sense of remorse augurs well for your prospects of rehabilitation.  I have taken your plea and your acceptance of responsibility into account in your favour.

26          I have had regard to the principles which have been set down by the courts in a large number of authorities with respect to the sentencing of youthful offenders and the importance of rehabilitation as a sentencing consideration in such cases.  I consider that the element of rehabilitation should be accorded a very high degree of significance in your case.  I have had regard to the purposes for which a sentence may be imposed under the Sentencing Act and the guidelines set out in s.5 of that Act.

27          I have had regard to the pre-sentence report prepared for the court and have considered the appropriateness of making an order for your detention in a youth training centre for a period of 3 years.  You have now been in detention in a youth facility for some time, as you have waited for the disposition of this matter.  Ultimately I have arrived at the view that, notwithstanding your youth, and the other factors which operate in mitigation of the penalty to be imposed, a youth training order would not be appropriate and a proper sentence must be one of imprisonment for a substantial period.

28          However, it does not follow that the sentence must or should be served in an adult correctional institution.  Indeed, in your case it would be singularly inappropriate for that to occur.  I direct that my view on this matter be drawn to the attention of the appropriate authorities so that consideration can be given to your immediate transfer to the youth system.

29          Ultimately I have decided that you are to be sentenced to imprisonment for a period of 5 years and 6 months, and I fix a non-parole period of 3 years and 6 months.  I declare that the period of 115 days which you have undergone in custody be reckoned as a period of pre-sentence detention and as having been served under the sentence hereby imposed.

30          TS, I need deal with your situation only briefly.  You have pleaded guilty to one count of burglary and one count of assisting an offender, namely, your sister, TSL, who you knew had committed a serious indictable offence.

31          As I have already outlined when addressing your sister's situation, you accompanied her on the night that Mrs Visisombat was killed.  You were involved in the illegal entry of the deceased's home for the purposes of theft and you supported her false version as to the circumstances under which she sustained some injuries on that night.

32          Whilst it is understandable, particularly in the circumstances, that you felt an obligation of loyalty towards your sister after the occurrences in the house, and it was for that reason that you provided a false version of the origin of the injuries, it appears that you were her willing accomplice in the break-in itself.  That is a very serious matter.

33          You are, however, very young, having been born on 10 August 1986 and, accordingly, were only 12 years of age at the time of these events.  As I indicated when you were arraigned, I am of the view for a number of reasons that the proper course to be adopted in your case would be to subject you to a youth supervision order.

34          Those reasons relate (inter alia) to your youth, the possible influence of your sister in your involvement in these offences, the indications of a disturbed family environment at the time, the limited role that you played in assisting your sister, the absence of any prior criminal history, and the considerable significance which must be given to the element of rehabilitation as a sentencing consideration in your case.

35          The order which I propose would be for a period of 18 months and it would be applicable to each of the offences.  That order would involve compliance with a number of conditions. They include reporting conditions.  You must not reoffend during the period of the order.  You must not leave the State without the written permission of the Secretary of the Department of Human Services.  You have to notify any change of address, school or employment within 48 hours and attend at locations and undergo what reasonable programmes are required of you.

36          Do you, TS, consent to the making of such an order?

37          PRISONER:  I do.

38          HIS HONOUR:  Yes, all right.  The order will have to be signed by you to indicate that consent, TS, and it will then be operative. 

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