Crown v Accused

2 You were arrested in September 2016, and you have been held on remand since then.

3 At your plea hearing the Crown tendered a Summary of Prosecution Opening for Plea,[2] written plea submissions,[3] and three victim impact statements.[4]

4 You met Cameron Harris on 15 September 2016, having been introduced by your friend Paul Bugeja. Cameron Harris was 39 years of age at that time and you were 57.

5 On the morning of 17 September 2016, you were at Paul Bugeja's home in Montrose. Paul Bugeja lived there with a number of other associates. At about 10:30am, Paul Bugeja woke up and overheard you telling one such associate,[5] that you had bashed Cameron Harris because you were sick of Cameron Harris being smart and rude.

6 Later that day, at around 12:20pm, Cameron Harris telephoned Paul Bugeja and seemed to be upset. Shortly afterwards, at around 1:10pm, Paul Bugeja, driving his blue utility, ('the blue ute') picked up Cameron Harris from an agreed location. The pair then drove around together for about an hour. They had lunch and returned to Paul Bugeja's Montrose address at around 2:18pm. Paul Bugeja parked the blue ute outside his house. He saw you standing on the nature strip, rummaging through a pile of belongings.

7 Paul Bugeja and Cameron Harris were talking to one another and remained seated in the single cab ute after the engine was switched off. The windows were down, and Cameron Harris called out to you 'Hey Danny, I'm sorry'. You then shouted back 'Don't say sorry to me mate,' and you began to walk towards the blue ute. However, you appeared to change direction and returned to a pile of belongings on the nature strip. You then approached the blue ute again. Paul Bugeja told you to 'fuck off' and leave Cameron Harris alone. However, you continued to approach and by that stage you had armed yourself with a knife.

8 You went towards Cameron Harris who was sitting in the passenger seat of the ute. You warned him not to threaten your family. When Cameron Harris replied that he 'didn't mean it like that', you said, '[Y]ou don't threaten my family and get away with it, you won't be doing that again.' You then braced yourself on the window frame and reached through and stabbed Cameron Harris once to his chest. You retreated from the side of the ute immediately after the stabbing.

9 Paul Bugeja interpreted your actions as a blow to the chest rather than a stabbing. He did not see a knife in your hands. He observed Cameron Harris become upset, saying he felt sick, and that he only wanted to help people. Still unaware that Cameron Harris had been stabbed, Paul Bugeja suggested to Cameron Harris that he come inside for a drink. Paul Bugeja got out of the ute and approached you, telling you to apologise to Cameron Harris. He then went inside his house.

10 You approached the blue ute and realised that Cameron Harris needed medical help. You went into the house and told Paul Bugeja that Cameron Harris was 'looking pretty crook'. You offered to drive him to hospital. Paul Bugeja agreed to let you take the keys to his blue ute and you drove off with Cameron Harris still in the passenger seat. He had not moved from the position that he was in when you stabbed him.

11 I accept that you set out intending to drive Cameron Harris to hospital recognising at that time that urgent medical treatment was needed.[6]

12 Between 2:46 and 2:51pm that afternoon, you drove around the Angliss Hospital in Ferntree Gully several times. Ultimately, you did not take Cameron Harris inside the hospital. Instead, you drove to a carpark on Old Belgrave Road. I find that although you initially intended to take Cameron Harris to the hospital, you panicked when you realised he had died on the way there, and you left his body on the grass near the carpark before driving away.[7]

13 Cameron Harris' body was found by a passer-by at about 2:57pm. He was unresponsive. The passer-by dialled 000 and attempted first aid until an ambulance arrived at 3:03pm. Cameron Harris was declared dead at 3:14pm.

14 In the meantime, you returned to Paul Bugeja's house. Later that day, you told another occupant of the house that you were sorry for bringing the heat on the house. You also said 'I wasn't thinking about what I was doing, but I've done it. No one threatens my family. He threatened to slice up my family.' You continued to say words to the effect that you knew he was dead and that you were sorry.

15 The next day, on 18 September 2016, there was publicity about the discovery of the body. You mentioned to your associates[8] that it was all over the TV and that you would likely 'get done' for the offending. You spoke of wanting to drive to Brisbane.[9] You offered to clean Paul Bugeja's ute and insisted he help clean the car seat covers.

16 Subsequent to the killing of Cameron Harris, pathologist Dr Yelena Berber performed an autopsy on his body. Dr Berber determined that the cause of death was a single stab wound to the chest.

17 The knife used to stab Cameron Harris was never found by police.

18 On 19 September 2016, you were arrested over the death of Cameron Harris and on 20 September 2016, you were charged, and remanded in custody.

19 Initially, you were charged with murder, and on 24 May 2017, you were committed to this Court for trial on that charge. Your first trial commenced on 5 September 2017.[10] For reasons beyond your control,[11] the jury had to be discharged without verdict on 27 September 2017.[12] Your second trial commenced on 8 May 2018 before Champion J of this Court, and you were convicted of murder.[13] That conviction was later quashed by the Court of Appeal.[14]

20 On 10 March 2021, you appeared before me and sought a sentence indication[15] regarding the proposal for a single charge of manslaughter. The sentence indication process was useful in identifying issues between the parties, although ultimately, I declined to give a sentence indication.

21 On 30 April 2021 the Court was informed that you would plead guilty to manslaughter. The Crown filed over an indictment for manslaughter that had previously been prepared in a draft form.[16] You were arraigned on that day and pleaded guilty to manslaughter. The manslaughter charge is based on unlawful and dangerous act manslaughter.

22 You have admitted prior convictions.[17] I will refer to your prior history and personal circumstances later in these reasons.

23 Your offending was relatively spontaneous. You had only known Cameron Harris for a few days, but according to Paul Bugeja, the pair of you immediately became involved in 'scams' of some kind. It appears that you and other occupants of the Montrose household were using drugs together in the lead up to the incident. In the context of heavy drug use and a chaotic lifestyle, you became inflamed with anger towards Cameron Harris, believing he had made threats towards your family. You were sleep-deprived and affected by the drug 'ice'[18] when you confronted Cameron Harris about the threats.

24 Perhaps Paul Bugeja and Cameron Harris hoped they could calm you down when they pulled up outside the Montrose address on that fateful afternoon. Instead, you became enraged when Cameron Harris called out to you. That was the context in which you impulsively stabbed him.

25 Of course, anger and loss of self-control do not excuse criminal behaviour. Your conduct was a gross overreaction to any comments that may have been made about your family. Your offending is made more serious by the fact that you had armed yourself before approaching Cameron Harris, and you stabbed him while he was still seated in the blue ute. However, I accept that you stabbed him only once, and then desisted, and that shortly afterward, you set out to drive him to hospital.

26 On the other hand, the objective gravity of the offending is made worse by the fact that when you realised Cameron Harris had died, you aborted your plan to go to the hospital and instead left his body in a public place.[19] This was a cowardly act, done to cover up your involvement in the stabbing. In the same vein, you took steps to arrange cleaning of the blue ute and car seat covers.

27 Based on the agreed facts outlined in the Summary of Prosecution Opening for Plea[20] ('SPO') the Crown submitted that your offending could be characterised as falling just below the mid-range of objective gravity for the offence of manslaughter. Descriptors that rely on these broad categories have inherent limitations,[21] but I am prepared to accept this characterisation taking into consideration all mitigating and aggravating factors relevant to objective gravity.[22]

28 Turning to an acknowledgment of the gravity of the crime of manslaughter, the Court is bound to sentence you for conduct that deprived Cameron Harris of his life. At the time of his death he had one daughter, Shardee Harris, who was only 14 years old. Shardee's mother was the deceased man's former partner, Tamara Brooks.

29 Victim impact statements were provided to the Court on behalf of Tamara Brooks, Shardee Harris, and Cameron Harris' brother, Darren Harris.

30 Tamara Brooks spoke of her shock at hearing that her former partner had died and of how hard it was to break the news to her daughter. She is regretful that her daughter will have to go through life without her father. It was explained that mother and daughter are very close and they mourned the death of Shardee's father together.

31 Shardee Harris expressed a sense of emptiness and sadness about the milestones she will not be able to celebrate with her father, and the opportunity she has lost to build a close relationship with him. She said her father will always be a part of her soul. She spoke of how hard it was to attend the previous two trials.

32 Darren Harris said his life changed after losing his brother. He lost his job and needed mental health assistance, and medication to get back on track. He recalled his brother's positive outlook on life despite their bad upbringing. He thinks of his brother every day, and still struggles to cope with the loss.

33 I acknowledge the contents of each victim impact statement which strongly convey the grief and loss suffered by Tamara Brooks, Shardee Harris, and Darren Harris.

34 Your Counsel tendered written submissions,[23] and the following medical and psychological materials and personal references:

(a) Confidential Neuropsychological Report of Dr Ariane Dowd, ARBIAS, dated 16 March 2012 ('2012 ARBIAS report');[24]

(b) Confidential Neuropsychological Report of Linda Williamson ARBIAS, dated 15 May 2014 ('2014 ARBIAS report');[25]

(c) Confidential Neuropsychological Report of Dr Charles Malpas, dated 7 October 2018;[26]

(d) Psychological Assessment of Luke Armstrong, JLA Consulting Psychologists ('Armstrong report'), dated 15 October 2018;[27]

(e) Supplementary letter by consulting psychologist Luke Armstrong dated 16 October 2018;[28]

(f) Transcript of oral evidence of Luke Armstrong on 17 October 2018;[29]

(g) Bundle of personal references from family and friends;[30] and

(h) Excerpts from Justice Health medical records.

35 The Justice Health records were sought on your behalf after a question arose as to your medical condition in custody.[31]

36 You are 61 years of age. You are one of five children to your parents and you were born in Melbourne. Your family were not well off. You and your family relocated to Queensland in your early childhood and then moved around a lot while your parents looked for work. You attended several different primary schools and were exposed to trauma and hardship as a child. Your father inflicted severe corporal punishment on you. At around the age of eight, you were sexually abused by a male relative on a family camping holiday. Your mother did not believe you when you complained about the incident at the time. Shortly after this, you ran away from home and began to get into strife. You were introduced to illicit drugs before you were a teenager. By 15 years of age, you were already injecting heroin daily. You began to serve periods of youth detention and then adult imprisonment.

37 Your adult criminal history dates back to 1977, although none of your previous offending was anywhere near as serious as the current offence. You served terms of imprisonment in the past, the longest sentence being 2 years and 6 months in 1988 for offences which included false imprisonment and criminal damage.

38 Drug use, including methamphetamine use, has been a major factor in your past offending. You entered Odyssey House for drug treatment on two occasions in your twenties but did not complete the program.

39 You fathered two children with a former partner in the early 1980s but could not sustain that relationship due to drug use and criminal offending. Your work history is patchy, although I note that you worked as a cleaner through the 1980s and 1990s, and then went onto a Disability Support Pension.

40 You met Julie Volpe in 1990 and married her in 1991. Your life became much more settled with Julie Volpe's support. Together the two of you have eight children. Your marriage to Julie is important to you because she helped you move away from a life of drugs and crime. Julie Volpe was present at Court during your plea hearing.

41 You have not been convicted of any violent offences since 2007, when you were fined for an unlawful assault.[32] Since then, the only offences proven against you were driving offences, and a single charge of theft on 6 April 2016, leading to a good behaviour bond. Your counsel, Mr Desmond, submitted that external support services ended after the conclusion of some court supervised treatment in 2016.[33] After that, you struggled to get the help you needed.

42 It would seem that despite a rocky start in life, and juvenile and early adult offending, your offending reduced after you married Julie. In the five years leading up to the present offence, you managed to largely avoid criminal offending. However, in the last part of that five-year period, your mental health declined, and you relapsed into drug abuse. By the time of the offence before the Court, your drug abuse was causing significant tensions in your relationship with Julie.

43 An issue that was investigated by your solicitors in preparation for your plea was whether you have any neuropsychological impairments. You had previously injured your head in a fall in 1998, and after that time you had experienced episodes of confusion and forgetfulness. This led to a concern that the fall had caused an acquired brain injury (ABI). Neuropsychologist, Charles Malpas, was engaged by your solicitors in 2018 to investigate this issue. Mr Malpas reviewed two previous neuropsychological assessments (being the 2012 and 2014 ARBIAS reports) and reached the conclusion that you did not suffer an ABI as a result of the 1998 fall, and do not have a specific cognitive impairment but that psychological factors might explain your symptoms.

44 Medical records subpoenaed from Justice Health relevant to your time on remand show that you have frequently complained of neurological symptoms such as migraines, dizziness, confusion and blackouts and suspected seizures. These symptoms have been medically investigated, including in emergency department presentations. I accept the submission made by your counsel that epilepsy has been recorded as a provisional diagnosis in a number of entries in your medical history over the time you have been on remand. An entry on 10 May 2021 suggests that you are currently medicated for epilepsy. There remains some uncertainty about the cause of your symptoms.

45 I also note that the Justice Health records refer to other medical conditions that have afflicted you whilst you have been on remand, some of which are chronic.[34] I will take into account that those health conditions have had to be managed in a custodial environment. I accept that aspects of ill health have made, and will continue to make, imprisonment slightly more burdensome for you, than for prisoners not similarly afflicted by ill health.

46 For the purposes of these proceedings, you were assessed by psychologist Luke Armstrong in 2018. He spent five and a half hours with you in 2018. He described your presentation as complex. You told him that at the time of the offending you were losing control and turning back to drugs, and that because of this, Julie was distancing herself from you. This upset you and you started living out of your car for days at a time. You told Luke Armstrong, that in the period leading up to this offence you contemplated suicide often. Chronic suicidal ideation was found to be closely linked to recurrent nightmares.[35] In the days leading up to the stabbing, you and other associates were indulging in heavy drug use at Paul Bugeja's Montrose house. Your precarious family situation, your deteriorating mental health, and spiralling drug use set the scene for the current offence to take place.

47 The core of Luke Armstrong's opinion was his view that you have compelling symptoms of delayed onset post-traumatic stress disorder, ('PTSD') due to severe trauma experienced during your childhood. He described your developmental history as 'horrendous' and noted that it was rare for someone to have started using drugs as early in life as you did.[36] He noted that disturbing recollections of childhood rape resurfaced in 1991, at a time when you had formed a new relationship with Julie Volpe.[37] With Julie's help you had managed to abstain from drugs and for the first time experienced a relationship of trust. It was in the context of that relationship of trust and sobriety that intrusive memories resurfaced.

48 Luke Armstrong considered it likely that your PTSD symptoms were suppressed by heavy drug use over the course of your life before you met Julie. He explained that your impairments produced in you a tendency to overreact to situations, especially when you felt threatened, and that your reactions could be 'disproportionately intensified' by your PTSD symptoms. He also described features of a borderline and antisocial personality, noting that the type of disorder you present with is often reflected in 'chronic, pervasive and inflexible patterns of perceiving and responding to the environment'. The features of a borderline and antisocial personality were seen as secondary to an impoverished and traumatic upbringing. Luke Armstrong also diagnosed a stimulant use disorder (amphetamine-type substance, severe, in sustained remission, within a controlled environment). Drug abuse had allowed you to avoid external reminders that might trigger distressing memories.

49 On the basis of the psychological reports filed on your behalf, Mr Desmond embraced the sentencing remarks of Champion J in 2018, where his Honour discussed the impact of your impaired mental health on your behaviour at the time of the stabbing. Mr Desmond submitted that I should apply Verdins principles[38] in the same way as his Honour did in 2018.[39] In 2018, Champion J found that Verdins principles 1, 3, 4 and 6 applied to your case.[40] I note that in the intervening period since then, Brown v the Queen ('Brown') was decided.[41] Brown confirms that Verdins factors may also have application where a person is impaired by a personality disorder.

50 Before me, the Crown conceded that the first, third and fourth principles are engaged in your case, but submitted that notwithstanding Champion J's findings, there is insufficient evidence that your mental health has been or will be adversely affected as a result of your custodial circumstances.

51 Having considered the evidence of Luke Armstrong, and consistently with the findings of Champion J,[42] I am satisfied that at the time of the offence, your mental functioning was impaired to some degree as a result of the ongoing effects of PTSD and your personality disorder. I will take account of your personality disorder in accordance with the principles articulated in Brown v the Queen.[43] I also accept that in the lead up to the stabbing, you were in the habit of using drugs to soothe your feelings of mental distress, whereas in fact those stimulants probably exacerbated your hypervigilance and feelings of paranoia.[44] In the abovementioned circumstances you grossly overreacted to your perception that Cameron Harris had threatened your family. The suddenness of your response is consistent with an overreaction triggered, in part, by chronic PTSD. I am satisfied that there is a sufficient connection between your mental condition and impaired decision-making at the time of the offending so as to merit some recognition in assessing your moral culpability.[45]

52 Separate from Verdins factors, your Counsel submitted that ice (methamphetamine) addiction and use at the time of the offence probably impaired your judgement at the time of the stabbing. Drug addiction or drug use is not usually a mitigating factor, and in some circumstances can be an aggravating factor. However, the evidence before me satisfies me that you were a child when you were introduced to hard drugs.[46] You were introduced to drugs by adults who treated you poorly at a time when you were vulnerable. Further, your drug abuse appears connected to your impoverished childhood, and your experience of sexual abuse. It appears likely that you continued to use drugs as an adult to suppress traumatic memories. You have struggled for your entire life with addiction, and while there have been periods of relative stability, you had relapsed in the lead up to the offending. I am mindful of the observations of Vincent J in the R v McKee,[47] allowing for some mitigation of moral culpability where drug addiction commences at an early age and is connected to criminal offending_._[48]

53 I accept the opinion of Luke Armstrong about your overlapping conditions where he said that:

in separating his symptom profile into Drug Addiction and Personality Disorder, one can better understand a chronic underlying PTSD condition ...In severe cases like Mr Volpe, it is often difficult to make a distinction between Personality Disordered behaviour and PTSD. However, it is my opinion that your client presents with compelling symptoms of the latter that would justify a diagnosis.[49]

54 In summary, your relapse into drug use, along with your chronic PTSD and your personality disorder, worked in combination to reduce your capacity for self-awareness and self-control at the time you stabbed Cameron Harris. These matters all contribute to an assessment that your moral culpability should be regarded as somewhat reduced.

55 Your history of battling long-term drug addiction, is also relevant to your prospects for rehabilitation which I will deal with later in these reasons.

56 Although your plea of guilty to manslaughter was entered late in the overall procedural history of this matter, it must be viewed against the backdrop of the more serious charge that you previously faced.[50]

57 The Crown have conceded that by pleading guilty to manslaughter, you have shown an acceptance of responsibility for killing Cameron Harris, and that as such, your plea provides a degree of closure for his family. In that sense, the Crown accept that your plea shows a degree of remorse.

58 Your counsel emphasised the following factors bearing on the weight to be given to your guilty plea and remorse:

(a) Firstly, you recognised the seriousness of your actions immediately after you stabbed Cameron Harris, and your initial plan was to take him to hospital, although you later altered that plan;

(b) Secondly, after entering a plea of guilty, you expressed through your counsel a public apology to the family of Cameron Harris, and to the community;[51] and

(c) Thirdly, your plea of guilty has significant utilitarian value in avoiding the need for a further lengthy trial and saving the need to further cross-examine lay witnesses and police officers.[52] Your plea provides certainty and closure for the family of Cameron Harris and has freed up precious court resources. This is of special benefit in light of the strain on resources caused by the current COVID-19 pandemic.[53]

59 I accept that each of these matters strengthen the weight to be accorded to your plea of guilty and that the circumstances of your plea of guilty allow a finding that you have some degree of remorse and that you accept responsibility for causing the death of Cameron Harris.

60 I note that your time in custody on remand has been made more difficult by the impacts of the COVID-19 pandemic. This has impacted on your access to in-person family visits, and the amount of time you have had to spend confined in a cell. I accept that you have endured hardship and reduced access to therapeutic programs because of the pandemic.[54] Luke Armstrong noted that your PTSD symptoms, including nightmares and associated mood problems, have continued in custody, and he opined that your psychiatric status would deteriorate if left untreated in prison.[55] Although the Crown submitted that this finding has not been borne out since 2018, I am prepared to accept that the burden of imprisonment is likely to weigh slightly more heavily on you than on someone without your psychological impairments, including your PTSD, personality disorder and history of chronic suicidal ideation.

61 Manslaughter is an offence that can arise from a wide range of different circumstances leading to a broad spectrum of appropriate sentences.[56] Keeping this in mind, I reviewed a number of unlawful and dangerous act manslaughter cases involving individuals whose background or offence circumstances were somewhat comparable to yours.[57] In addition to considering the cases noted by the Crown in their written submissions,[58] the following cases were considered for the purposes of comparison:

62 DPP v Devey (No 2)[59] involved a sentence imposed on an offender who stabbed his victim once to the chest, causing death. A difference from your case was that stabbing occurred during an altercation between the victim and the offender where it could not be established which of the two was the first to grab a knife. However, the offender was about the same age you were at the time of the offending, had a history of drug use going back to his teen years, a significant criminal history, and a previous PTSD diagnosis. He also had significant physical health difficulties that would impact him in prison.

63 In R v Garrard,[60] the youthful offender pleaded guilty to manslaughter based on an incident where he caused the death of the victim by stabbing him in the lower abdomen during a physical altercation. This scenario differs from your case, but other personal factors relating to the offender were similar to your situation. The offender suffered sexual abuse as a child, and left home at a young age, after which he experienced homelessness. He commenced using drugs before he was a teenager, and was addicted to drugs at the time of the offending.[61]

64 In DPP v Edwards,[62] the female offender killed her victim by a single stab wound to the neck. Like you, the offender was affected by drugs at the time of her offending, had a traumatic childhood, and suffered complex PTSD. Also, like you, she was initially charged with murder, but later pleaded guilty to manslaughter.[63]

65 In DPP v Frost,[64] the offender had stabbed a stranger in the back during a verbal argument. The offending was spontaneous, and a 'violent and disproportionate' response to the situation. No attempt was made to obtain assistance for the victim. Like you, the offender in that case had a very turbulent childhood, which included physical abuse, drug use, and periods of homelessness from a young age, although he suffered mental disorders, that were more serious than yours.[65] His criminal history was more serious than yours and his crime was not mitigated by a plea of guilty or any significant remorse.

66 Lastly, I note the sentence in DPP v Tate,[66] handed down five years before your offending, in 2011. The offender had no prior convictions for violence and made an early plea of guilty to manslaughter. He had embarked on a protracted drinking session with the victim and then stabbed the victim with a steak knife when an argument erupted between them during dinner. The offender's childhood was dysfunctional and included childhood sexual abuse. Like you, the offender began using substances from a young age and showed symptoms of borderline personality disorder, although Verdins principles were not applied in his case.

67 All of the sentences I have referred to help inform the Court about current sentencing practice and are part of the mix of factors to be considered in arriving at a just sentence.[67] In considering comparable sentences, I bear in mind that '[t]here is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case'.[68]

68 Pursuant to ss 5(1) and (2) of the Sentencing Act 1991 (Vic)('Sentencing Act') I have had regard to the purposes of sentencing and circumstances relevant to your case.

69 Manslaughter is a serious crime because it involves the loss of a human life. The impacts of your crime on the family of Cameron Harris are immeasurable. Given this, general deterrence, punishment, and denunciation must be reflected in your sentence. Specific deterrence is relevant because you acted impulsively out of anger, and you need to be deterred from acting out in a way that threatens the safety of others in the future. However, all of these factors will be moderated to some degree as result of Verdins principles, having regard to your impairments at the time of your offending and now.

70 Regarding your future prospects, and whether you are likely to reoffend in a serious manner after you are released, I take into account your current age. There was a long gap between any previous violent offences and the current offence. After you married Julie Volpe, you embraced family life and contributed in various ways to running the household and helping parent your children. Indeed, I was informed that over the years, despite your limited means, you and your wife from time to time allowed homeless young people to reside with your family.[69]

71 The stability you had established was disintegrating by 2016 when you committed this crime. At the time of the offending you had relapsed into drug abuse and marital relations were strained.

72 It is clear from the written testimonials from your family and friends,[70] that you continue to have the ongoing support of your family and friends. Some of your children are still young, and the written references before the Court show that you are missed by all your family members. Your family will welcome you back when you are released from prison. Given your age, and the other health conditions that continue to affect you, you will require family support more than ever in the future.

73 Your past drug addiction will continue to present challenges for you after you are released. The sentence to be imposed should remind you of the importance of actively pursuing drug treatment and avoiding crime in the future. However, I accept that with strong family support and sustained psychological treatment, your prospects for rehabilitation are good. Your age and stage of life should also serve as a preventative factor.

74 As at the day of your plea hearing you had already spent over four years and seven months on remand. I take into account that you have been subject to two trials, with all the stress and uncertainty that that must have entailed. Whilst on remand you managed to complete several educational programs despite the impact of the COVID-19 pandemic on program delivery.

75 I consider that the sentence I am about to impose is proportionate to the gravity of your offending taking all of the circumstances of the case into consideration.

76 Pursuant to s 5(3) of the Sentencing Act, I have applied the principle of parsimony so that the sentence I impose is no more severe than is necessary to achieve the purposes for which the sentence is imposed.

78 On the charge of manslaughter, you are convicted and sentenced to a term of imprisonment for nine years. I fix a non-parole period of six years. I declare that you have already served 1733 days, not including today's date, by way of pre-sentence detention, to be reckoned as already served under the sentence I have just imposed.

79 Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 11 years imprisonment, with a non-parole period of 9 years.

80 I will make the disposal orders sought by the Crown.

[1] The maximum penalty for manslaughter has since increased to 25 years. See Crimes Amendment (Manslaughter and Related Offences) Act 2020, s 3 (amending the Crimes Act 1958, s 5).

[2] Dated 5 May 2021, Exhibit ('EXH') P1.

[3] 'Prosecution [sic] Submissions on Plea', 11 May 2021 ('Prosecution plea submissions'), EXH P2.

[4] Victim Impact Statement of Darren Harris dated 6 May 2021, EXH P3, Victim Impact Statement of Shardee Harris dated 8 October 2018, EXH P4; Victim Impact Statement of Tamara Brooks undated, EXH P5.

[6] This finding accords with Prosecution plea submissions, [6].

[7] This finding was not disputed by the Crown and was made on the balance of probabilities.

[9] There is no evidence before me of any steps being taken in this regard.

[12] Due to one juror falling ill and another having personal commitments.

[13] On 26 June 2018, before Champion J, a conviction for murder was entered in the records of the court. Sentencing following trial took place on 14 December 2018, see: R v Volpe [2018] VSC 797.

[14] On 5 October 2020, the Court of Appeal heard an appeal against conviction (Volpe v the Queen [2020] VSCA 268). On 16 October 2020, the Court of Appeal allowed the appeal on the basis that certain evidence was admitted at trial that ought to have been excluded pursuant to s 137 of the Evidence Act 2008 (Vic). The Court of Appeal set aside your conviction, and ordered a new trial.

[15] Pursuant to s 207 of the Criminal Procedure Act 2009.

[16] For the purposes of the sentence indication.

[17] The Crown filed a Criminal Record dated 15 October 2018.

[18] The street name for methamphetamine.

[19] DPP v England [1999] VSCA 95, [27].

[21] Lee v the Queen [2018] VSCA 343, [31]-[32].

[22] Impulsive delivery of a single stab wound followed by a decision to obtain medical help, albeit not followed through.

[23] 'Written Plea Submissions on behalf of Danny VOLPE', 12 May 2021, EXH P2 ('Defence plea submissions') EXH D1.

[29] Transcript of Proceedings (R v Volpe, S CR 2017 0084, Champion J, 17 October 2018)('Armstrong Transcript'), EXH D7.

[31] On the first day of the plea Mr Desmond indicated to the Court that you were believed to suffer from epilepsy and permission was granted for the issuing of a subpoena on Justice Health to obtain a copy prison medical records. Sentencing was delayed so that those records could be obtained. The records were produced to the Court and released to the parties on 2 June 2021. On 7 June 2021, your Counsel made some further brief submissions on your behalf about suspected epilepsy and other aspects of the medical records.

[32] An imprisonment in lieu order was eventually imposed on 28 March 2008 as a result of non-payment of that fine.

[33] This appeared to be related to matters dealt with in the Magistrates' Court.

[34] Including for example the impacts of past history of Hepatitis C, fatty liver disease, diverticular disease, GORD.

[35] Armstrong Report, 10. (Mr Armstrong took a history that there had been a serious suicide attempt in early adulthood but no suicide attempts since this time).

[38] Drawn from R v Verdins, R v Buckley, R v Vo [2007] VSCA 102.

[39] Defence plea submissions, [13]; [2018] VSC 797, [58]-[63].

[40] At [62]-[63] his Honour said: 'In my opinion, your level of mental impairment contributed to your offending in that it affected your ability to regulate impulsive and damaging decisions and conduct [...] In these circumstances, I will allow some moderation to the degree of your moral culpability for the offending, and to general and special deterrence in your case. I also accept, to a limited degree, that you are likely to find the sentence imposed will weigh more heavily on you than it would on a person of normal health.'

[41] [2020] VSCA 212.

[42] Although Champion J was imposing sentence for the offence of murder.

[43] [2020] VSCA 212.

[45] See R v Mikhail [2020] VSC 681, [84]-[86].

[46] Queen v McKee and Brooks [2003] VSCA 16; [2003] 138 A Crim R 88, [13]; R v Lacey [2007] VSCA 196; (2007) 176 A Crim R 331; Jones v the Queen [2021] VSCA 114, [24]-[27].

[47] See Queen v McKee and Brooks [2003] VSCA 16; [2003] 138 A Crim R 88 at [23], where His Honour noted the 'serious corrosive effects' of drug addiction, from which a person may never escape. He canvassed that such addiction ought to be taken into account in for a variety of sentencing purposes, including moral culpability.

[48] [2003] VSCA 16; [2003] 138 A Crim R 88, [21].

[50] Cameron v R [2002] HCA 6 [21] a guilty plea should not be regarded as late when it is made to a lesser offence shortly after the prosecution discontinues a more serious charge.

[51] Defence plea submissions, 4; Transcript of Proceedings, R v Volpe (Supreme Court of Victoria, S CR 2017 0084, Jane Dixon J, 13 May 2021) ('Plea Transcript'), 26.

[52] It was submitted that police witnesses came under significant attack due to the late production of evidence in the previous trial.

[53] See DPP v Bourke [2020] VSC 130, [32].

[54] The limitations on weight to be accorded to the impact of the pandemic on prisoners were mentioned in Wyka & Gardiner v The Queen [2020] VSCA 104.

[55] Supplementary letter by consulting psychologist Luke Armstrong dated 16 October 2018.

[56] In Vu v the Queen [2020] VSCA 59, the offender pleaded was found not guilty of murder at trial, but found guilty of manslaughter. At [33], the Court of Appeal said: "The sentencing range for the crime of manslaughter is strikingly wide, as is the range of criminal conduct that can cause the relevant unlawful killing. The range of conduct commences with a 'joke gone wrong' and extends to conduct 'just short of murder'".

[57] On the topic of current sentencing practices for manslaughter, a report from the Sentencing Advisory Council published in 2021 shows that a wide range of penalties have been imposed in the period from 2015-2015 to 2019-2020, although sentences have been tending to increase and more recently the maximum sentence has been increased by parliament.

[58] Bassam Tiba v the Queen [2013] VSCA 302; DPP v Awad [2019] VSC 706; Papadopoulos v the Queen [2014] VSCA 63.

[59] [2021] VSC 121 (7 years and 6 months imprisonment, non-parole period was 5 years, 6 months).

[60] [2020] VSC 154 (7 years, non-parole period was 5 years).

[61] He expressed a desire to write a letter of apology to the victim, and Incerti J found that during his evidence on the plea, the offender had 'recognise[d] the wrongfulness' of his actions and taken responsibility for them, [74].

[62] [2020] VSCA 339 (9 years, non-parole period was 6 years and 9 months), sentence confirmed on appeal.

[63] The offender was an aboriginal person.

[64] [2019] VSC 672 (10 years and 6 months imprisonment, non-parole period was 7 years and 9 months).

[65] He had previously been found not guilty by reason of mental impairment for other violent offending.

[66] [2011] VSC 173 (10 years, non-parole period was: 7 years and 6 months).

[67] See also: R v Dellamarta [2021] VSC 220 (7 years and 6 months imprisonment, non-parole period was 5 years).

[68] Per Nettle J in Markarian v R [2005] HCA 25, [66].

[69] Character References of Joseph Robertson, Joy Volpe, Aaron Neal.

[70] Bundle of personal references from family and friends exhibited at D7.