R v Winter
[2004] VSC 329
•3 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2002
| THE QUEEN |
| v |
| PAUL WINTER |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27-30 JANUARY; 2-6, 9-12, 26 FEBRUARY; 2-3 MARCH 2004 | |
DATE OF SENTENCE: | 3 MARCH 2004 | |
CASE MAY BE CITED AS: | R v WINTER | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 329 | |
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Manslaughter – Sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Dunn QC | Galbally Rolfe |
HIS HONOUR:
Paul Winter, you have been convicted by a jury of the manslaughter of David Van Velzen at Frankston on 31 August 2002.
On that afternoon you were advised by your wife that your elder daughter, Kristy, had run away from a residential unit in which she had been placed by the Department of Human Services. Your daughter was at that time a troubled and troublesome teenager. Your wife was unable to search for her because she did not drive, so you set out to look for your daughter in what I accept was a state of some agitation. Your daughter had previously been unsuccessfully placed with two foster families and hence her failure to remain at the residential unit was a matter of particular concern.
You drove from Chelsea up the Nepean Highway and turned left to travel east down Playne Street Frankston towards the railway station. The Frankston Railway Station was a location at which your daughter was known to "hang out". When you came to the roundabout at the intersection of Young and Playne Streets, a white car was stationary in the left turn lane in front of you. A man was getting out of that car and he proceeded to struggle to put on his jacket. He did so leaving the car door open and this car did not move off but continued to block your path forward. You tooted your horn and the man who had alighted from the car in front of you first responded by asking, "What the fuck's your problem?", and then walked slowly across between the two cars to the driver's window of your car. In so doing he at one stage stumbled and put his hands on the bonnet of your car. When he came to your driver's window he confronted you and, after a relatively short period of time, which witnesses estimate as in the order of some 20 seconds, you stabbed him with a knife, inflicting a fatal wound at the base of his neck adjacent to the right clavicle.
The man you stabbed was David Van Velzen, a 35 year old father of two young children. He had been drinking over the previous 24 hours and had a blood alcohol content of between 0.24 and 0.26 per cent at the time of the stabbing. He was a strongly-built man, some 182 centimetres tall, and had himself been involved in two prior outburts of aggression that day; one involving threats of violence to a baby-sitter and the other involving the pushing of the house mate of a friend into a wall. Nevertheless, he was, at the time you stabbed him, unarmed and, even on the view most favourable to you of the evidence, had inflicted no injury of significance upon you.
In your record of interview with police you subsequently stated that after vehemently abusing you and challenging you to a fight, Van Velzen lunged at you through the car window. He grabbed your hair and pulled it as you, in turn, pulled away to your left and threw your arms up in panic. You maintained that it was only after you had reacted in this fashion that you realised you had a knife in your hand and that you had stabbed Van Velzen.
In further panic, you drove off at high speed and stopped on a back road near the South Gippsland Highway trying to collect your thoughts. You washed some blood from your car but left substantial blood splashes upon it. You placed the knife and items of your own clothing, which were also bloodstained, in a plastic bag in the boot and then drove your car home. Some three days later you contacted a solicitor and arranged through him to give yourself up to the police the following day. You did turn yourself in and you handed to the police the knife and the bloodstained clothing. You also co-operated with further police investigations.
It is apparent from its verdict that the jury did not accept that the stabbing of Mr Van Velzen was other than deliberate. Moreover, it is implicit in such a verdict that the stabbing was done with an intent to assault the deceased man; that is, you stabbed at the deceased with the intention either of injuring him or threatening injury and did so other than in self-defence.
This conclusion is not surprising. The knife you used was a substantial weapon. It is a sheath knife with a 15 centimetre blade, a sharp point and is of significant weight. It was driven into Mr Van Velzen almost up to the hilt and withdrawn cleanly. Further, both the driver and the passenger in a car stopped behind yours observed you deliver a blow out of the car window. It is, in my view, simply not credible that the knife was wielded unintentionally as you have maintained . Further, as you conceded to police, the circumstances which confronted you could not have led to a reasonable belief on your behalf that stabbing with this knife was necessary in self-defence.
There are, however, some aspects of the facts which Mr Dunn has urged, and I accept, can be said to help explain your conduct or reduce your moral culpability.
Firstly, I accept that you were in a state of some real underlying emotional agitation.
Next, you remained in your car at all times and it was the deceased who confronted you at your car window.
Next, it is likely that such confrontation was angry and abusive in terms. Although I am of the view that the account you gave to police of such abuse was exaggerated, I still accept that the words initially heard by a witness and the description of the deceased's appearance given by other witnesses justify the conclusion that he was angrily abusive.
Next, the confrontation was close. It is apparent that the deceased bent down and towards your driver's window. It is only by reason of such bending that a man of his height could have suffered a wound adjacent to the neck which angled acutely downwards and the knife could have been withdrawn without fishtailing or other lateral damage. I should add that I am not satisfied that the deceased intruded into your car at the time of the stabbing. The nature of the wound and the sequence of events indicate that this is possible, but there is no evidence from any of the independent witnesses directly supporting this conclusion and I cannot be positively satisfied of it. I am also not satisfied the deceased stumbled forward at the time of stabbing. The nature of the wound and the sequence of events again indicate that this is possible but there is no evidence from any of the witnesses directly supporting this conclusion and I cannot be satisfied positively of it.
I accept, however, that it must have been apparent to you that the deceased had been drinking and that you did in fact smell alcohol on him, as you told the police. In other words, you were confronted at close quarters by a man who was, and appeared to be, both drunk and angry.
I also accept that at the time of the stabbing the deceased made some movement towards you, although I cannot be satisfied that it was in the nature of a punch, as one witness described it. It may be that he grabbed into the car, as you told police, but, again, I am unable to reach a conclusion as to precisely what the movement was.
You struck only one blow and immediately withdrew the knife. The evidence of the pathologist called on behalf of the Crown at your trial was that the force required to inflict the fatal injury was a mild force only because, as it transpired, you struck a point at which the knife could travel into soft tissue.
I accept that it may be that you only intended to threaten Mr Van Velzen with the knife and not necessarily to inflict any physical injury upon him, nevertheless, I am satisfied that if you did not in fact intend to injure the deceased, your assault upon him involved a stabbing action towards him which was not only objectively dangerous but which you, yourself, must also have realised at the time carried with it the real risk of resulting in an actual stabbing.
The following circumstances may be said to aggravate your offence:
Firstly, your victim was an unarmed man who had inflicted no actual injury upon you. Further, although you assert in your record of interview that he pulled your hair, I am not satisfied that this occurred. It forms part of the exaggerated account of your confrontation, which it is clear the jury has rejected, and it has no evidentiary support other than what is stated in your record of interview.
The weapon you used was a large, sharp and dangerous knife. It was a knife which you were accustomed to carry and use in the course of handling camels. Because of your familiarity with it, you should have been aware of its dangers.
It was a knife which you had placed adjacent to the driver's seat of your car in a position in which it should not have been carried.
Your victim was unknown to you. There was no excuse for your actions other than your inadequate response to emotions of frustration and anger. In this regard I am satisfied on the basis of the observations of the witnesses in the vicinity that you did express anger to Van Velzen as he approached you and that the confrontation that occurred at your car window was thus one of mutually angry men. You could have sought to avoid such a confrontation by the simple expedient of winding up your car window. You could, on any view, have controlled yourself for a longer period than the 20 seconds or so which the confrontation took.
In expressing the above conclusions, I have applied the principles affirmed both by the Court of Appeal and the High Court that in sentencing a judge must adopt a view of the facts consistent with the verdict of the jury; may not take into account a matter adverse to the prisoner unless it is proved beyond reasonable doubt but may take into account matters in favour of the prisoner if the judge is satisfied of them on the balance of probabilities.
I turn then to your personal details. You are aged 39, having been born on 23 June 1964. You are married with three daughters, aged 7, 10 and 16. I accept that a custodial sentence will cause stress to your family and separation from them will add to the burden entailed in such a sentence. Nevertheless, your family circumstances are not exceptional in the sense referred to in cases such as R v. Maslen and Shaw (1995) 79 A.Crim.R. 199 at 209. Moreover, it must be borne in mind that you have by your actions left two young children fatherless.
You have worked in a variety of employment situations and on the basis of the many references tendered on your behalf I accept that you are normally a stable and reliable individual who has worked hard over the years but has not amassed great wealth.
In January 2003 you were involved in a motor bike accident resulting in a fractured right femur and other injuries including some impairment of vision. The right femur has not healed and you continue to suffer ongoing pain from the fracture together with limited mobility, although the ultimate prognosis for healing is good. As a result of your injuries you have developed serious depression which Dr Blandthorn, your treating psychiatrist, describes as a major depressive episode and post-traumatic stress disorder. He has treated you with medication but believes further ongoing psychiatric supervision is necessary. He also believes that the imposition of a custodial sentence is likely to produce some deterioration in your mental state but he does not express a firm view as to your longer term prognosis.
The evidence as to your psychiatric condition brings into consideration the principles stated by the Court of Appeal in R v. Tsiaras [1996] 1 V.R. 398. I accept that as a result of both your physical injuries and your ongoing depression that the experience of imprisonment will impose a somewhat greater burden upon you than is usual. It is likely that the loss of personal liberty and the physical circumstances in which you will be held will cause you greater hardship than if you did not suffer from these disabilities and, in particular, than if you did not suffer from the depressive condition which Dr Blandthorn believes will be aggravated if you are imprisoned and will require ongoing supervision.
Unfortunately, this is not the first occasion on which you have come before the courts. Your prior convictions include the following: On 7 November 1985 you were convicted at the Magistrates' Court at Mornington of assault with a weapon, damaging property and failing to exchange name and address. These convictions arose out of an incident involving a motor car accident in which you were involved. The other driver drove away from the scene and you pursued him and confronted him, kicking him in the groin and damaging his motor vehicle with a crowbar.
On 12 December 2000 you were further convicted at the Magistrates' Court at Frankston of refusing a preliminary breath test. This conviction arose out of an incident in 1993. You had been living in Queensland in the interim.
I accept that the first set of convictions are relevant to the questions which I must consider but they involved the actions of a 21 year old which were not regarded as warranting a custodial sentence. I further take the view that because of the extended lapse of time these convictions cannot be said to demonstrate a relevant propensity as a road user.
Having said that, in my view, your case does raise issues of both general and specific deterrence. The more significant of these are issues of general deterrence.
I come, firstly, to what is colloquially referred to as "road rage". For present purposes I mean by this term the failure of a motorist to control his or her emotions when confronted with frustration while driving and the resort to aggression as a consequence. It is apparent that such behaviour has the potential to result in totally unjustified and tragic outcomes as indeed occurred in the present case. The court must send a clear message that frustration and high emotion on the part of a driver is simply no excuse to resort to violence. It is not enough to say of the victim "he started it".
The second factor raising an issue of general deterrence in your case is the carrying of a knife next to the driver's seat of your car. I accept that the knife had not been placed next to your seat for the purpose of use as an offensive weapon. Nevertheless, the court is once again confronted with a case where resort to a knife such as your sheath knife has led to an outcome totally disproportionate to the subject matter of dispute between the parties. The court must reaffirm that the carrying of readily accessible knives in public (whether on the person or next to the driver's seat of a car) cannot be accepted as reasonable or appropriate behaviour in our society. If you had not had a knife to hand Mr Van Velzen would still be alive today and you would not be before this court.
The third factor raising an issue with respect to deterrence is one of specific deterrence and concerns your own maturity. Although your lapse in self-control was of short duration, it is apparent that you were not able to exercise appropriate self-control as a driver. It must be brought home to you that presence on the road brings with it a commensurate need for self-control and responsibility.
On the other hand, the impressive body of references tendered to me and the evidence of your psychiatrist confirm that you do feel significant remorse for the killing of Mr Van Velzen. The evidence that you sought psychiatric assistance when taken into custody may also be understood to reflect this fact. Further, I am satisfied on the basis of this material and the evidence as a whole (including your good behaviour whilst on bail for an extended period, commencing in September 2002) that there are realistic prospects for your rehabilitation and that the events of the past few years will hopefully be the low point in your life. This consideration is relevant both to the length of custodial sentence which I should impose and the provision of a relatively substantial period during which you will be eligible for parole.
I turn then to the evidence before me as to your victim. Although Mr Van Velzen suffered from a number of personal problems, he was nevertheless loved by the members of his family and possessed of a strong affection for his two small children. The victim impact statements which have been tendered to me elaborate the personal suffering that your conduct has resulted in for his immediate family. They reflect very strong emotions of anguish and grief and consequent emotional distress and I accept them as such. But I do not accept them as containing evidence bearing on the view I should take of the circumstances of your offence.
Mr Winter, it is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances.
Having regard to the matters I have elaborated, I have in summary come to the following conclusions:
Firstly, you are and were at the time of the offence a mature man who has generally conducted himself as a stable and hard-working family man.
Next, there are aspects of the circumstances in which the deceased confronted you which can be said to help explain to some extent what you did and reduce to some extent your moral culpability. You were already agitated by family circumstances and you remained seated in your car at all times. It was the deceased who confronted you at close quarters in an angry, abusive and drunken manner.
Nevertheless, although it may be that you intended only to threaten Mr Van Velzen with the knife and not necessarily to inflict physical injury upon him, I am satisfied, as I have said, that you must have known that your action carried with it the real risk that it would result in a stabbing.
In the event, you stabbed an unarmed man with a large, sharp and dangerous knife. The consequence of your action was the death of another human being.
There was no excuse for your action other than in an inadequate response to emotions of frustration and anger.
Your case does raise significant issues of deterrence with respect to the context of road use in which the killing occurred and the carrying of a knife next to the driver's seat of your car. It also raises a subsidiary issue of specific deterrence although, as I have said, I do not regard this as a major factor in your case in determining an appropriate sentence.
You have suffered significant physical injuries in a motor accident since the incident which brings you before this court and as a consequence suffer from ongoing disability and depression. It is likely that these circumstances will aggravate to some extent the burden which imprisonment will cast upon you.
Moreover, you have expressed remorse for the consequences of your actions and I am satisfied that there are real prospects for your rehabilitation.
Having regard to these matters and to the considerations set out in s.5 of the Sentencing Act 1991, including the maximum penalty fixed by s.5 of the Crimes Act 1958, I sentence you to seven years' imprisonment and I fix a non-parole period of four years. I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 38 days in custody.
Would you remove the prisoner please.
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