R v Wanders

[2002] VSC 598

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1513 of 2001

THE QUEEN

v

PATRICK ALFRED WANDERS

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JUDGE:	COLDREY J
WHERE HELD:	SHEPPARTON
DATE OF PLEA:	29 OCTOBER 2002
DATE OF SENTENCE:	14 NOVEMBER 2002
CASE MAY BE CITED AS:	R. v. WANDERS
MEDIUM NEUTRAL CITATION:	[2002] VSC 598

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Sentence -  Manslaughter – Unlawful and dangerous act – Plea of guilty – Stabbing of offender's son-in-law in the course of an argument in which the victim goaded the offender – Age of offender and excellent prospects of rehabilitation taken into account – Sentence of 5½ years with a non-parole period of 2½ years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr ColinHillman SC	Office of Public Prosecutions
For the Accused	Mr Dermot Dann	Berry & Maloney

HIS HONOUR:

1. Patrick Alfred Wanders, you have pleaded guilty to the manslaughter of your son-in-law David John Murray at Yarrawonga on about 20 September 2001 and I must now sentence you.  In order to place the offence in context it is necessary to summarise the circumstances surrounding its commission.  On 20 September 2001, you were living at the Jelara Caravan Park, Yarrawonga with your son, William.  On that day you had ridden your bicycle to the house of your daughter, Michelle Cooper.  Early in the evening, William left the premises to participate in various social activities, including a darts competition at the Royal Mail Hotel, Mulwala.  Ultimately, shortly after 11.00 p.m., he arrived with some take-away beer at the home of your other daughter, Lisa, and her husband, David Murray, at Telford Street, Yarrawonga.  The purpose of this late night visit was apparently to chastise Mr Murray for an episode of driving on 17 September when he had driven while affected by alcohol and had almost been involved in an accident.  William, who was a passenger in the car, was upset and concerned by the ineptitude of the driving.  Why this hour of the night should have been chosen to remonstrate with Mr Murray is unclear, although William, who had consumed a considerable amount of liquor, described it as "alcohol inspired."  You had remained with your daughter at Michelle's house watching television.  During the course of the evening your consumed about four cans of Victoria Bitter which you had purchased earlier in the day.

1. About 11.30 p.m. William rang Michelle's house and you were informed that he was at the Telford Street address and the reason for his presence.   You set off on foot taking several cans of beer and arrived at the premises about midnight.  You told the interviewing police, and this Court, that you went there because you believed there could be trouble between the two men.  You, in effect, wanted to diffuse the situation.  You also said that you took the alcohol because sharing a drink was the key to any conversation to be had with your son-in-law.  On one view, this action might be regarded as ironical since you proceeded to lecture Mr Murray about his excessive drinking habits and his use of marijuana, and their effect upon your daughter, Lisa, and their three-month old baby, Billie Jo.  One concern was that, when drunk, David Murray may accidentally drop the baby; another was the aggressive attitude which he would exhibit towards your daughter, Lisa, after the consumption of alcohol.  According to Lisa, the change in is personality occurred after about six cans.

1. During the period preceding his death, David Murray was drinking a slab of heavy beer every two days.  On 20 September he purchased a slab of Victoria Bitter at about 12.15 p.m.  By the time you arrived at the premises, he was clearly drunk.  Indeed, blood alcohol readings of .31 and .33, that is, more than six times the legal limit for driving, were recorded in blood tests conducted after his death.  These tests also revealed the recent use of cannabis as well as several therapeutic drugs.

1. On your arrival, you found Mr Murray angry, probably from a combination of factors, including the alcohol consumption, the earlier argument with your son, William, about the driving incident and the intrusion of you and your son into his home at a late hour of the evening.  In any event, you proceeded to lecture David Murray about his drinking and its effect upon his family.  He was advised to grow up and pull his life together.  He responded in essence that he would live his life in the way he wanted, that his drinking was his business.  At this stage you and he were facing each other across a 74 centimetre wide island bench in the kitchen.

1. The argument proceeded for an indeterminate number of minutes.  Whilst there are variations in the evidence of those present, it is apparent that taunts were exchanged as each of you became increasingly angry.  You used expressions such as:  "If you don't look after my daughter, I'll kill you."

1. On your daughter's version of events, which is probably the most reliable given her state of sobriety, David Murray pulled a knife out of a knife block situated on the island bench and put it in front of you.  This action was accompanied by the taunt that you would not have the guts to use it.  You picked up the knife but held it either by your side or behind your back.  At one stage as the argument continued, the deceased emptied the block of knives onto the bench urging you to pick the one you wanted.  According to your daughter, you replied that you already had one knife and didn't need another, whereupon the knives were replaced in the block which was returned to its original position.

1. Although the sequence of events and accompanying conversations is by no means certain, it was the recollection of your son, William, that at one point you said to David Murray:  "I'll put one through your heart if you want me to."  The deceased responded by exhorting you to:  "Go on, do it then."  He repeated similar words in this vein, goading you.

1. On the only evidence before this Court, the tragic conclusion of this exercise in stupidity occurred when David Murray pulled open his bath robe and thrust his chest across the bench towards you.  You chose this moment to extend your left arm in front of you pushing the knife you had been holding towards him.  The result of the movement forward of Mr Murray's body and of the knife was that the knife blade, which was 13.8 centimetres in length, entered the left side of David Murray's chest penetrating skin and soft tissue and entering the heart, diaphragm and liver.  According to the post-mortem examination, the depth of the wound was about 12 centimetres.  Mr Murray immediately slumped to the ground hitting his head on the adjacent sink as he fell.

1. You told investigating police that you thought you had just nicked Mr Murray with the knife, penetrating about half to one inch.  In this you were clearly wrong.  However, your state of belief is consistent with a comment attributed to you by your daughter Lisa immediately after the stabbing:  "I'm sorry, Lisa.  I haven't killed him.  I've just given him a fright."

1. Indeed, Dr Michael Burke, the pathologist, gave evidence that in the circumstances described the degree of force required to produce this injury would be at the mild end of the spectrum.

1. An ambulance was called by your daughter but, unfortunately, David Murray died at the scene.

1. At no stage did you deny your involvement in this offence and you were cooperative throughout with the investigating police.  At all times you insisted that you did not intend to make contact with the deceased's body.  You told this Court that your action was part of a bluff designed to demonstrate to Mr Murray that you would stab him if you wished to do so.

1. The Crown have accepted your plea of guilty to unlawful and dangerous act manslaughter.  This is on the basis that whilst you did not intend to stab David Murray, you thrust a knife towards him with the intention of causing him to fear that he would be stabbed.  That constitutes an unlawful assault.  Further, given the potentially explosive atmosphere of mutual anger which pervaded the incident, and the close proximity of the deceased to you, the thrusting of the knife towards him objectively constituted a dangerous act in that there was an appreciable risk of serious injury being caused.

1. In the record of interview conducted by the police you described what you had done as dangerous and absolutely stupid.  This is undoubtedly a correct assessment of your conduct.  Although you did not take the knife to the scene, it was you who chose to pick up the proffered knife and it was you who chose to wield it.  Knives are potentially lethal weapons and the courts must pass sentences which not only denounce their use but also deter persons who might be tempted to resort to them as a method of resolving problems.  The courts must also uphold the sanctity of human life.

1. However, the crime of manslaughter covers a myriad of factual situations which the courts must take into account.  The unusual circumstances of your case with the unintended infliction of harm places it at the lower end of the scale of such offences.  Additionally, there are matters personal to you which I must take into account in determining an appropriate sentence but before discussing them, I wish to say something about the deceased.

1. David Murray was aged 39 at the time of his tragic death.  Following a back injury sustained during his employment at Safeway he was not working.  He informed his mother, Mrs Mary Murray, that the consumption of marijuana and alcohol assisted in the relief of his back pain.  Although excessive alcohol consumption may have adversely affected his personality, there was another side to his life.  For example, in his police statement William Wanders noted:  "When he is not drinking he is the nicest bloke.  He is the best."  In her Victim Impact Statement, Mrs Murray, whilst acknowledging her son's drinking problem, described him as having a heart of gold.  She writes about the emotional trauma that the loss of a son has caused her.  David's sister, Dianne Wilson, refers to the many good things David did and mentions her feelings of grief, loss and anger at his death.  His brother, Phillip, writes of how David provided him with support when he needed it.  He, too, has suffered great stress at the loss of his brother.  The material also indicates that David Murray was a good father to his children, Ricky and Billie Jo, and a good uncle.  The untimely death of David Murray and the manner in which it occurred is something from which his family will never fully recover.

1. Patrick Wanders, you are currently 65 years of age, having been born in Melbourne in September 1937.  Your father is still alive at 91 years of age and resides in a nursing home.  You have an elder sister who lives in Newport.  You were educated to year 8, or Merit Certificate level, at St Monica's Primary School, Footscray.  At the age of 14 you entered the workforce and a history of constant, if varied, employment followed.  After initially working as a chairmaker at the Myer Heritage Store in Flemington, you secured a five-year apprenticeship as a hairdresser.  You graduated from the Hairdressing College as the top apprentice of your year.  You did not, however, pursue that career and shortly after completing your apprenticeship, you obtained work as an inspector of wires and tubing at the production plant of Metal Manufacturers at Maribyrnong.  Whilst there, in 1962, you met your future wife and mother of your three children, Wilma Dreever.  After the birth of your elder daughter, Lisa, you obtained work at Fletcher Chemicals in Sunshine, where you mixed batches of chemicals.  During this period, which occupied about two years, your daughter Michelle was born.  Subsequently, you worked as a night watchman for the Australian Watching Company and then as a storeman at the Melbourne importer, H.J. Langdon.

1. In 1968 you operated a hairdressing business in Cheltenham but the income proved insufficient to support your family.  Consequently, you obtained work at Invicta Carpets, rising to the position of Assistant Supervisor.  Employment of various durations followed at James Hardie as a forklift driver, Wormald's Security and Dow Chemicals as a production clerk.  In 1971 you married Ms Dreever and in 1975 your third child, William, was born.

1. You next held a number of positions including that of mullion maker at Mirage Industries, Cheltenham.

1. In 1977, you and your wife separated, she having met another man.  You divorced in 1983.  Nonetheless, you remained on good terms with your former wife and very close to your children who have lived with you from time to time.  All of them have attended this case and continue to support you.

1. Subsequent to 1983, you have experienced significant periods of unemployment but you have also had jobs including at Bush Boke and Allan, manufacturers of soft drink flavours, where you worked as a mixer.  In about 1990, you moved to Yarrawonga to support your daughter, Michelle, who was then a single mother.  From 1994 to 1996 you looked after your incapacitated father and were in receipt of a Home Carers pension.  In 1997 you and your son, William, moved to Yarrawonga to support your former wife, by now Mrs Wilma Lott, whose husband was extremely ill and who has since died.  For the last four years you have resided with your son, William, at the Jelara Caravan Park and you are currently a mature age pensioner.  In summary, you have had a long work history since the age of 14.

1. In the course of the plea your counsel drew my attention to an incident in 1961 when you were responsible for raising the alarm and rescuing a resident from a property engulfed by fire.  Your efforts were the subject of a commendatory article in the Sun Newspaper.  You have no prior convictions whatsoever and you have not committed any offences in the period of about 12 months since this incident.

1. The Court was provided with a number of character references from persons in various walks of life.  These were Shane Oakley, the Mulwala Postman, Marg McCafferty, the Yarrawonga librarian, Theresa Andrews and Brigitte Mills, who operate businesses in the area, Laurie Gibbs, the manager of the Jelara Caravan Park, and Eric Law, a graphic artist and long-term friend.  The thrust of these references is that you are a generous, reliable, caring and family orientated person.  The terms "decent" and "gentle" are also used.

1. Additionally, several persons gave evidence on your behalf.  Your daughter, Lisa Murray, the wife of the deceased, spoke of the loving relationship you had with all your children and grandchildren and your non-violent nature.  She told the Court of the invaluable assistance you currently provide for her and her child, Billie Jo.  She also spoke of the sorrow you felt at David Murray's death.  These themes were reiterated by your daughter, Michelle Cooper, and by your former wife, Mrs Wilma Lott.  Clearly, your life has been family orientated.  Mr Don McLean, whose mobile home you've been sharing for the past 12 months, told the Court that he had never heard anyone say a bad word about you and remarked on your close relationship with his young daughter who you assist with her school work.

1. You took the unusual step of giving evidence on oath.  In essence, you expressed your profound remorse for your role in the death of your son-in-law.  Having read the material, listened to the witnesses and observed your closely during your Court appearances, I accept that your remorse is genuine.

1. In the course of his very helpful plea, your counsel, Mr Dann, advanced a number of matters in mitigation.  These may be summarised as follows:

1.        your plea of guilty;

2.your full and frank cooperation with investigating police including your acknowledgment at the earliest stage of the investigation of your culpability for the offence of manslaughter;

3.        your remorse;

4.your prior good character, particularly having regard to your age at the time of the commission of this offence;

5.        the isolated and unpremeditated nature of the act itself;  and

6.        its unintended consequences.

I take all these matters into account in your favour.  These factors, including your history of hard work and lack of prior convictions, and the ongoing support of your family, indicate that your prospects of rehabilitation are excellent.  Indeed, in the circumstances, specific deterrence need be accorded no weight.

1. I was also urged to have regard to the onerous conditions you experienced during the 33 days you spent in custody before being granted bail.  You were incarcerated at such venues as the police cells at Shepparton, Moonee Ponds, Craigieburn and Fitzroy.  I bear that matter in mind, although it does not represent the normal conditions of imprisonment.

1. Whilst I take into account all of the matters favourable to you, I cannot accede to your counsel's submission that you should not receive an immediate custodial sentence.  The seriousness of the offence and the need for general deterrence, particularly of the resort to weapons, requires that such a sentence be imposed.  However, I am of the view that not only should the various mitigatory factors to which I have referred be reflected in the head sentence, but I should also fix a lower than normal non-parole period.

1. Accordingly, balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, denunciation, general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of five and-a-half years. I fix a shorter than normal period of two and-a-half years before you become eligible for parole. It is declared that the period of 50 days inclusive of today's date, be reckoned as the period of detention already served under the sentence. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.

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