R v Wilson
[2009] VSC 431
•21 September 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1747 of 2008
| THE QUEEN |
| v |
| BENJAMIN JAMES WILSON |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 June 2009, 4 August 2009 | |
DATE OF SENTENCE: | 21 September 2009 | |
CASE MAY BE CITED AS: | R v Wilson | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 431 | |
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Defensive homicide – Plea of guilty – Intoxication.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Chris Mclennan & Co |
HER HONOUR:
Benjamin Wilson you have pleaded guilty to one count of defensive homicide and have admitted prior convictions.
On Sunday 22 July 2007 you went with a friend to a boarding house in Jackson Street, St Kilda. You there visited mutual friends and spent the afternoon drinking. As the afternoon progressed, you became drunk and argumentative. Indeed, you ended up fighting with the friend who had gone with you to the boarding house.
At one point you went into one of the communal kitchens of the house and there spoke to the deceased, Setla Hang. You were in an aggressive mood and you accused him of stealing other tenants' food. The allegation was baseless.
In any event, some sort of altercation took place and Mr Hang hit you on the head with an object causing you to bleed. One of the other tenants tried to help you. She called an ambulance but you left the boarding house covered in blood and bleeding profusely.
You went to the Salvation Army Crisis Centre in Grey Street. There you appeared agitated. You asked those at the Crisis Centre to ring an ambulance, but then you left. A concerned employee followed you out into the street and spoke with you. She saw you placing your bloodied hands on a fence, making handprints and jumping out in front of passing motorists and pedestrians as if to frighten them.
You walked off before the ambulance arrived and walked to a restaurant in Fitzroy Street. You were there seen to be drunk, aggressive and abusive to patrons. You picked up a partition and threw it to the ground. You then walked off down Fitzroy Street.
Eventually an ambulance and the police attended and were able to locate you. You asked the police to handcuff you because you said you were a bad drunk and in that way, you were transported to the Alfred Hospital. While at the hospital, your manner varied. You were at times cooperative and agitated. You were breathalysed and found to have a blood alcohol level of .017 per cent.
You left the hospital before being treated for the wound to your head, and it appears that you made your way back to the boarding house in Jackson Street. The hospital records show that you were discharged at 8.01pm.
At about 8.30pm, a number of residents at the boarding house heard the sounds of an assault taking place. It appeared to come from the corridor and the words, “Die, die, die cunt” were heard uttered repeatedly. No one saw what was happening, but once the fight appeared to have stopped, one of the residents came out of his room and saw Setla Hang laying face down in the hallway in a pool of blood.
The emergency services were rung and police and ambulance attended. Mr Hang was unconscious and appeared to have suffered a number of stab wounds. No pulse was detected. He could not be revived. Mr Hang was declared dead at 8.47pm.
In the meantime you had left the boarding house and ran to the house of a friend, Charlie Lai. On the way you buried the knife in the garden of a property in West Beach Street, St Kilda. You told Charlie Lai that you had stabbed a guy in the throat and you had killed someone. You appeared to him to be drunk and psychotic. You showered, changed your clothes and stayed the night. You left the next morning and went to where you were then living in Derby Street, Collingwood. You were there arrested very shortly afterwards.
You were taken to the offices of the Homicide Squad where an interview was commenced and suspended, and you were then taken to the St Kilda Police Station and en route you showed the police where you had discarded two T-shirts you had been wearing and where you had disposed of the knife. Later that evening you were returned to the offices of the Homicide Squad and there participated in a record of interview.
You told the police that Setla Hang had hit you on the back of the head after you had spoken to him in an angry and aggressive manner, accusing him of taking food. You admitted that you had been drinking since midday and that on a scale of 1 to 10 of intoxication you were, “About 10” in your words, “Pretty intoxicated”.
You said that after you discharged yourself from hospital you went back to the boarding house and confronted Mr Hang, asking why he had hit you. You argued with him and pushed him, and he produced a knife and you grabbed the hand the knife was in and a wrestle ensued. You said Mr Hang was trying to stab you, that he thrust the knife towards you once and as you wrestled with him you pushed the knife into him a couple of times (Question 211). You thought you had stabbed him a few times (Question 216), and then at another point in the interview you said you did not manage to get the knife off him but you pushed the knife back into him (Question 290).
You told the police that you and Mr Hang wrestled down the corridor, that you let him go and then picked up the knife and ran away with it. You admitted that you were angry and drunk and that after Mr Hang had first lunged at you with the knife you had control of the dynamics of the struggle. You said that you did not think Mr Hang had been stabbed in the back, although you were not sure.
The post mortem examination disclosed seven stab wounds to the face, neck and upper back of Mr Hang, the majority of which extended only to the subcutaneous tissue but two were more serious, one extending through the ribs and into the plural cavity and the other a stab wound to the neck cutting the right jugular vein, and it is this wound which was likely to be the fatal wound, and in the pathologist’s opinion it was inflicted with a moderate degree of force. The knife, when it was finally located in the garden at the West Beach Street property was found to be a pocket knife.
The Crown accepted your plea to defensive homicide on the basis that your actions were entirely disproportionate to the threat you believed you faced, and that although you believed you were acting in self-defence you had no reasonable grounds for that belief.
The maximum penalty for the crime of defensive homicide is 20 years’ imprisonment. It is a serious offence and, in my view, your offending is a serious example of it. Although you were responding to the production of a knife and I accept that there is no evidence that you took a knife with you, it was you who returned to the boarding house angry and drunk and apparently intent on some confrontation which resulted in the production of a knife.
You responded in circumstances where your judgment was clouded by alcohol and when you knew that when affected by alcohol you were an aggressive drunk. It is in this context that you effectively created the circumstances that resulted in the need to defend yourself.
Defensive homicide is a very serious offence. It requires the formation of an intention to kill or to inflict really serious injury. Although you were heard to say the words, “Die, die, die” it is not known when you said those words, whether it was before the injuries were inflicted or at the time or afterwards.
Although there were a number of stab wounds inflicted, apart from the one to the neck which you acknowledge, there is no evidence as to how the others were inflicted other than, as you say, in the course of a wrestle which travelled down the hallway.
This description appears consistent with the objective evidence of the blood being found along the walls lining the corridor and the sound of a struggle as heard by residents.
The Crown cannot disprove that Mr Hang produced the pocket knife, and in these circumstances I cannot be satisfied that your intention was to kill Mr Hang, and accordingly I proceed on the basis that in wrestling with the knife you stabbed the deceased with the intention of causing him really serious injury in the belief that it was necessary to do so in self-defence, but that there were no reasonable grounds for such belief.
You are 26 years old and have admitted 13 prior convictions from four court appearances. You were 24 when you committed this offence. In July 2006, you were dealt with for breach of a suspended sentence and served a sentence of two months’ imprisonment. Thus you had been released from prison some ten months before the commission of this offence.
You were born in Stawell and lived on the family farm some ten kilometres out of town.
You were educated at the Stawell Secondary College and left halfway through Year 10. You completed a Certificate in Hospitality at the Ballarat TAFE and have principally worked in unskilled labouring jobs such as a bricklayer's assistant and working in abattoirs, on a prawn trawler and as a shearer. Apart from the time that you worked on a prawn trawler in Queensland, your adult life has been spent moving between Stawell and Melbourne. At the time you committed this offence, you were unemployed and in receipt of the Newstart Allowance.
You began drinking alcohol at the age of 16 and by the age of 23, you were drinking very heavily indeed. You have previously undergone a detoxification program at Das West but despite this, intoxication was clearly a significant factor in your conduct on this day. You were using cannabis regularly from the age of 14, although this stopped in 2005, and you were using amphetamines from the age of 16 which developed, by the age of 24, into a daily habit. You have also used other illicit substances and Dr Sullivan, in his report dated 13 May 2009 and tendered in evidence as Exhibit 1, has described you as having a long-standing poly-substance dependence.
It appears that you attempted a drug rehabilitation program in July 2005 which resulted in a psychiatric admission to the Glenside Mental Health Services in South Australia. The discharge summary from that hospital, tendered in evidence as Exhibit 2, describes you as being detained due to acute paranoid psychosis with the range of persecutory beliefs.
You were diagnosed as paranoid schizophrenic with amphetamine and cannabis dependence. You were treated with anti-psychotic and mood stabilisation medication and released on 25 August 2005 with the recommendation that you continue on anti-psychotics indefinitely. The discharge summary noted, “When unwell, he poses an extreme risk to others.”
You told Dr Sullivan that you continued on medication for up to a year after your release and this is confirmed by your mother Jillian Wilson's, sworn testimony. You also gave Dr Sullivan a history of another psychotic episode at Ballarat which he was unable to confirm and that you have had persecutory beliefs when drinking heavily and taking drugs which were at their worst in 2004 when you were working as a shearer.
You also gave a history of lengthy periods of depression and it appears that you have had frequent suicidal thoughts including on one occasion in 2003, when you had taken a shotgun with the intention of killing yourself, only to be disarmed by your father. It appears, however, that your mental state has improved since you have ceased drug use whilst incarcerated.
Dr Sullivan concluded that you are of low-average intellect, that you have tenuous mental health and although intoxication with alcohol and it's associated impaired judgment and aggression were significant considerations in this offence, you were not suffering any psychotic illness or displaying evidence of isolated psychotic symptoms at the time you committed this offence, nor is there any indication of any current psychosis.
At the request of your counsel, the court ordered a further pre-sentence report and a supplementary report from Dr Sullivan. The report of Dr Kate Roberts, consultant psychiatrist with the Victorian Institute of Forensic Mental Health dated 13 July 2009, was tendered in evidence as Exhibit N.
In that report, Dr Roberts confirmed that you have remained mentally stable since ceasing psycho-tropic medication. You have not come to the attention of psychiatric services, you have exhibited no evidence of functional decline and your personality remained in tact; all factors therefore evidencing that you had suffered a drug induced psychosis in your early 20s.
Dr Roberts agreed with the opinion of Dr Sullivan in his supplementary report, dated 30 July 2009 and tendered in evidence as Exhibit 6, that your previous diagnosis of paranoid schizophrenia in 2005 could not be maintained in the presence of a long-standing drug use with amphetamines and cannabis. Thus the correct diagnosis should have been on that occasion a psychotic disorder related to substance intoxication, use, or withdrawal.
Dr Sullivan concluded that at the time of this offence, you were clearly affected by intoxication and that the low grade paranoia that you reported to him would have impaired your ability to exercise proper judgment or to make calm and rational choices, and your level of intoxication would have resulted in disinhibition and a reduced threshold to act violently.
Dr Sullivan is of the opinion that you would benefit from long-term drug and alcohol input, in particular that you should attend Alcohol Anonymous while in prison and that upon your release, you should undergo sustained drug and alcohol counselling and abstinence from substance abuse. If not, in his opinion, your “Psycho-social adjustment and prognosis will be poor.” Dr Sullivan describes you as “Insightless as to the severity of your problem.”
Your mother in her evidence, spoke of your lack of self-esteem as you were growing up and in more recent years, two attempts at self-harm and an occasion when you were 24, when you were discovered with a rope and writing notes in anticipation of committing suicide. Your mother also spoke of an incident when in a drunken state, you attacked two of your father's friends and fired a shotgun in the air.
Otherwise, your mother said that you were never violent growing up and although there were arguments with your father, you had not been violent towards family members. Your mother describes you as kind and generous when not drug and alcohol effected. This sentiment was confirmed by the written testimonials of your aunt, Marlene Kaye and a family friend, Betty Gust, which were tendered in evidence on your behalf as Exhibits 4 and 5 respectively.
Since being received into custody, you have served a sentence of five months imprisonment in respect of the offences of being a prohibited person in possession of an unregistered firearm, assault with a weapon and threat to kill, which occurred prior to this offence.
You have also worked cooking and cleaning and working in the refurbishment unit repairing cells. You have also participated in occupational programs, drug and alcohol and anger management programs. Certificates to that effect have been tendered in evidence as Exhibit 3. You are presently engaged in a practical engineering course.
Your counsel has submitted that you are a young man supported by your family; that you have a limited history of violent offending; that you are taking steps to address your alcohol problem and that you have been industrious while in prison and in these circumstances your rehabilitation is not without hope.
In sentencing you, I take into account and give you a discount for your plea of guilty and that by reason of your plea you have saved the community the cost of a trial and the witnesses the ordeal of one.
I take into account that you are remorseful for you conduct. I take into account also that you cooperated with the police and apart from a lie, made in the interview to protect your friend Charlie Lai, you admitted your involvement and frankly conceded your level of aggression and intoxication.
I take into account your age at the time you committed this offence and now, and that you are of low average intellect. I take into account also your limited prior criminal history and I take into account that while on remand, you have served a sentence of five months’ imprisonment in relation to other matters. I take into account also that you have the continued support of a loving and caring family.
In sentencing you, I must also take into account the nature and gravity of the offence here committed and your role in it. Your actions have resulted in the loss of a loved son, brother and father. Ms Setla Hang was 32 years old. He came to Australia from Cambodia in 1983 when he was nine.
He was the father of a young boy Joshua, now aged 13 and a young girl Vilani, now aged eight. His mother, stepfather, brother, two sisters and his former partners, the mothers of his two young children, have all made victim impact statements and one has been made on behalf of his daughter Vilani.
I have had regard to all the relevant and admissible evidence in those victim impact statements. It is apparent that his family members have been deeply aggrieved and distressed, not only at their loved one’s untimely death, but also the way in which his life was taken. Each of the deponents speak of the loss of a loved one and the psychological, physical, social and emotional consequences to them.
By your actions you have not only taken the life of a son and a brother, but you have also left fatherless two young children. No sentence this court can impose can return to them their loved one.
Any sentence I impose must also serve to punish you and act in denunciation of your conduct. The sentence imposed must also give due weight to considerations of specific deterrence and I note in this regard that you would have been released from prison in September 2006, and you were either on a Community-based Order at the time you committed this offence or you had just very shortly completed it. So that at least that previous sentence of imprisonment had failed to deter you from re-offending.
Any sentence imposed must also give due weight to general deterrence so that like minded persons will know that taking a life in the unreasonable belief that one is acting in self-defence will attract condign punishment.
Accordingly, taking into account all relevant considerations, including other sentences imposed for the offence of defensive homicide, you are convicted and sentenced to 10 years’ imprisonment, and giving due weight to your prospects for rehabilitation which, with the support of your family and provided you remain drug and alcohol free such prospects maybe said to be favourable, I propose to order that you serve a non-parole period of seven years, and I declare that you have already served by way of pre-sentence detention, a period of 633 days, and I declare that pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty I would have sentenced you to 12 years’ imprisonment with a non-parole period of 10 years.
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