Crown v Accused

2 Dhieu Manoah died as a result of being stabbed by you on 15 March 2020.

3 The maximum penalty for the offence of manslaughter is 20 years imprisonment.[1]

4 The Crown has provided the Court with an opening,[2] written submissions,[3] and victim impact statements from the family of Dhieu Manoah.[4] The Crown's opening was read in open court at the commencement of your plea hearing. Counsel for the Crown, Mr Hayward, also read out a section from a statement of your sister, Jessica Harrison, with the agreement of your counsel, Mr Mandy SC. The part of that statement that was read aloud provided some additional information about your early life.[5]

5 Mr Mandy and Mr Chisolm put forward a plea on your behalf and also relied on written submissions[6] and the following materials:

(a) Report of psychologist Megan Rodgers dated 16 June 2021 ('the Rodgers report');[7]

(b) Report of neuro-psychologist Dr Evrim March dated 1 August 2021 ('the March report');[8]

(c) Report of Bernard Healy, Clinical Psychologist dated 18 September 2008 ('the Healy report');

(d) Letter from Dr Katherine Honeyman, Clinical Psychologist, Caraniche Pty Ltd, Metropolitan Remand Centre dated 15 July 2021;

(e) Client Community Research Report submitted by Tessa Theocharous ('community research report'); and

(f) Information about the Bert Williams centre submitted by Tessa Theocharous.

6 Your lawyers also provided the Court with a copy of your Corrections Victoria Sentence and Remand Report which sets out the details of your periods in custody since 2007.

7 Due to COVID-19 restrictions, it was not possible to have people attending court in person. Members of Dhieu Manoah's family watched the plea hearing remotely via a livestream broadcast.

8 Members of your family and community also observed proceedings in this manner.

9 You were arrested on the evening of 15 March 2020 following the commission of the offence in the afternoon of that day. You were interviewed by police and initially charged with murder. You were remanded in custody at the conclusion of the police interview.

10 On 21 September 2020 you were committed to this Court for trial.[9] On 19 February 2021 and 12 March 2021 several witnesses were called for cross-examination as part of the fast-track process of this Court that was implemented in response to the current COVID-19 pandemic.[10] Shortly after that process was completed, you offered to plead guilty to manslaughter. The Crown accepted your offer and you formally pleaded guilty in this Court on 26 March 2021.[11] Your plea hearing was adjourned to earlier this month so your lawyers could gather relevant plea material.

11 At the time of the offence, you were living in a unit in an apartment block in Collingwood. Dhieu was visiting friends at that apartment block at the time you killed him.

12 For a few days before your offending, a female friend of yours named Amour had been spending time at your unit. On 14 March 2020, Amour felt you were being too possessive over her, so she left and went to stay with a friend in Carlton. She came back on 15 March 2020 in the morning, but in the course of the day she made the decision to leave again. This made you angry. At around 3:35pm, Amour's ex-partner, Liban, came to your unit to check on Amour. Liban was living in the apartment building on the 16th floor. You were in the shower at the time Liban arrived. Liban and Amour left your unit together at around 3:45pm.

13 At about 4:02pm, you went up to Liban's apartment on the 16th floor, seemingly to look for Amour. Amour and Liban were not there. Dhieu was there with six other young people. You entered the apartment, and you had a knife with you. You were yelling and calling out for Amour and Liban.

14 Dhieu happened to be sitting on a gym bench in the loungeroom of the unit. For seemingly no reason at all, perhaps other than your angry mood, you punched him once to his jaw. You left the unit a few minutes later and took the lift down several levels. Liban and Amour returned to Liban's apartment shortly after you had left. They were told that you had just been there with a knife and that you had punched Dhieu. Liban left to go and find you to talk to you. He found you in the lift at level 11. Liban spoke to you about Amour, but felt he could not get through to you.

15 Meanwhile, at 4:12pm, Dhieu left the apartment building, holding a 'North of Nowhere' beer bottle. It seems based on the later autopsy report that Dhieu must have been quite intoxicated that afternoon.[12]

16 You and Liban returned to the 16th floor. Liban went into his unit, locking the metal security door behind him. He joined Amour and seven other young people who were inside. You were outside the unit in the hallway and could not get in. You and Amour were yelling at each other through the door and you demanded she come out. You had a knife and were waving it around. You struck the security door with the knife, causing a hole in the mesh. After a few minutes, you left and walked towards the lifts. This was at around 4:30pm.

17 Unfortunately, it was at that time that Dhieu happened to return via the lifts to the 16th floor. Although the event was not directly witnessed by anyone else, it is clear that you stabbed Dhieu once to his chest shortly after he got out of the lift on the 16th floor. There is no evidence that Dhieu did anything to provoke the assault on him by you.

18 The young people who remained behind the locked door to Liban's unit heard glass breaking, which is consistent with Dhieu's bottle of beer dropping to the floor and breaking when he was stabbed.

19 After you stabbed Dhieu, you went back to the door of Liban's apartment. You said to the people in the apartment that they were dogs, and that their friend was bleeding and they should check on him. Then, you left the 16th floor down the stairwell.

20 Shortly after this, Liban and several other occupants of the unit went to check on Dhieu. They found him slumped against a wall near the lift. They tried to give him CPR, and someone called triple 0. Paramedics arrived at level 16 at 4:49pm. They moved Dhieu to the lift and took him to the ground floor, but sadly Dhieu died at the scene. During the post-mortem examination conducted in the days following his death, forensic pathologist Dr Yeliena Baber found that the stab wound to Dhieu's chest was 12.5 centimetres in length, and that it pierced his heart. Dr Baber also found that Dhieu had a minor bruise on his jaw muscle.[13]

21 The police arrived shortly after Dhieu was stabbed. They found you later that evening at your Aunt's unit in the same apartment building. You had changed your clothes since you had stabbed Dhieu. Police arrested you and took you to the Melbourne West Police Station.

22 Later that night, the police commenced interviewing you. On 16 March 2020, police searched your Aunt's unit. There, they found the pants and baseball cap you were wearing when you stabbed Dhieu. There was some blood on the pants which was later found to be consistent with Dhieu's DNA. The knife you used to stab Dhieu was never found.

23 Your police interview was resumed on 16 March 2020 after you had had a chance to rest. The answers that you gave about your whereabouts on 15 March 2020 were unsatisfactory. Some of your answers were false. You expressed frustration at the interview process. You were charged with murder and remanded.

Victim's circumstances and victim impact statements

24 Dhieu was born in South Sudan and was only 32 years of age when you killed him. He was the eldest child of his parents with seven younger siblings. Dhieu's family spent time in a Kenyan refugee camp and Dhieu's father died in 2004. The family migrated to Australia in 2005 when Dhieu was 17 and he was granted Australian citizenship in 2011. He obtained an engineering qualification from Victoria University. In March 2020, he was living with his cousin in Collingwood.

25 Dhieu's mother, Fakaskila Paul has submitted a victim impact statement describing the devastation felt by the family when they learned of Dhieu's death. Dhieu was her firstborn child and helped with his younger siblings after their father died. He got a licence and a job after the family migrated to Australia and helped the family in many different ways. Dhieu's mother worries about her future without her eldest son.

26 Dhieu's sister Nyankur Manoah said she and Dhieu were very close and that he was supportive of her and her two older children. He visited every week to help cook family dinners and eat with the family. He helped his nephew with schoolwork. It continues to be very hard for her to accept the loss of her beloved brother. She feels that his death has torn the family apart.

27 Dhieu's other sister, Nyonya Manoah, is the second born sibling after Dhieu, and was also very close to him. She has trouble even mentioning his name, because of the profound sadness caused by his death. Her own eldest son had a strong bond with his uncle Dhieu and she and her children have each been greatly saddened by his death. Nyonya feels unsure whether she can ever move on from what was done to Dhieu.

28 The victim impact statements provide a moving account of the grievous impact of Dhieu's untimely death on his family. Dhieu's family have been forever changed by your actions.

29 Along with Dhieu's family, there are other members of Dhieu's social circle who will have been harmed by this senseless crime. Friends and associates will no doubt struggle to make sense of what was done to Dhieu. Some of the young people who gave evidence before me about the event appeared distressed about what happened to Dhieu.

30 The objective gravity of your offending is high because you armed yourself with a knife in the lead up to the fatal attack, and behaved in a threatening manner prior to the fatal incident. You were antagonistic towards the occupants of Liban's apartment in the earlier visit, even punching Dhieu at that time. When you returned, you were angry and irrational about Amour's rejection of you and you were brandishing the knife and yelling. You stabbed the security door. It appears you took your frustration out on Dhieu when he got out of the lift nearby where you were venting your anger.

31 The evidence of Dr Baber was that at least moderate force was employed in the act of stabbing Dhieu to the chest. Viewed objectively, this was a very dangerous act. You did not attempt to render any assistance to Dhieu after you stabbed him. While you did alert his friends to the fact that he was injured.

32 Nevertheless, I take account of the fact that your attack on Dhieu was unplanned and spontaneous. Further, your attack on Dhieu, while violent and extremely dangerous, was not sustained or persistent.

33 It appears you were affected by cannabis at the time of the stabbing and according to the account you gave your counsel, you had not slept for four days prior to the offending. This disrupted sleep followed a period of heavy methamphetamine use and is likely to have affected your mental state at the time. The Crown argued that even making allowance for your background of early exposure to substance abuse, you had been offered court ordered drug treatment in the past and must have been aware of the damaging effects of drugs on you at the time of this offence. I agree that your drug use, in and of itself, is not a mitigating factor. I will take account of how your personal history affects your sentence shortly when I consider your overall moral culpability for this offence.

34 Overall, I consider that the objective circumstances of this offence make it a serious example of the crime of manslaughter.

35 Although you were initially charged with murder, you pleaded guilty to manslaughter almost immediately after the fast-tracked witness examinations. As such, I accept that your plea was made at quite an early stage and that you are entitled to a significant discount on your sentence as a result of its utilitarian value.

36 The value of your plea is also greater in view of the current pandemic. The Victorian Court of Appeal has recently held that the utilitarian value of a plea of guilty in the circumstances of the COVID-19 pandemic is greater than at other times, and should attract 'a more pronounced amelioration of sentence than at another time' because of the extraordinary pressures placed on court resources.[14] Whilst the backlogs are more substantial in the courts below, this Court is also under pressure accommodating jury trials, with ongoing lockdowns, while waiting for a greater proportion of the population to be vaccinated.

37 I have also taken account of your genuine remorse for your offending, expressed both through your plea itself, and through your counsel at your plea hearing. I accept that you are truly sorry for what you have done, even though your actions immediately after the incident, and at the time of police interview, did not betray remorse.

Burden of custody and hardship caused by COVID-19

38 I also accept that the current pandemic has led to greater hardship for persons held in custody for the reasons expressed by the Court of Appeal in Worboyes v the Queen.[15] Your opportunities for contact with your family and friends, and access to programs, have been very restricted during your period of remand due to successive lockdowns, and this is likely to continue for some time after you are sentenced. I note in particular that you have not been able to see your son in person during your period on remand, and have only been able to have one video call with him.

39 You are currently 34 years old. You were 32 years old at the time you killed Dhieu.

40 You were born in East Melbourne. You are of Aboriginal descent. You are a member of the Gunditjmara, Wotjabuluk and Dja Dja Warrung nations.

41 Your mother Kathy was born in 1970. Her mother, Margaret, is a Wotjabuluk and Dja Dja Wurrung woman. Your forebears were affected by the implementation of decisions to remove Aboriginal children from their parents. Your grandmother, Margaret, was removed from her family at a young age, and your mother Kathy and your uncle were in turn removed from Margaret when they were young children.

42 The community research report points out, that it has been well documented,[16] that the removal of Indigenous children from their families has devastating, life-long and intergenerational consequences.[17]

43 Your father was born in 1970. His mother was a Gunditjmara woman. Your father lived at the Framlingham Mission as a young child, before he and his family relocated to Melbourne, where he grew up. Your father was a well-known boxer at the Fitzroy Stars gym in Fitzroy. Tragically, your father's cousin was killed during a fight at the gym in 2006. Your father had to give evidence at the coronial inquest and was badly affected by what happened. He struggled with alcoholism and spent time in prison.

44 You are the eldest of six children born to Kathy, although your siblings have different fathers. Your parents separated when you were just 3 years old. Between 3 and 6 years old, your grandmother cared for you. When you were 4 years old you spent six months in hospital being treated for a virus.

45 During your primary school years, you lived with your mother on and off. You attended Cranbourne West Primary School but were bullied there. You repeated grade one. It appears you moved frequently as a child, and had periods living in Fitzroy, Dandenong, West Heidelberg, Broadmeadows, and New South Wales.

46 You were exposed to your mother drinking regularly and using cannabis when you were with her. Some of her partners were violent towards her, and towards you.

47 At around year 7, you again moved away from your mother to live with your grandmother, along with your sister Jessica. Your other siblings stayed with your mother. Your grandmother also moved often, and while you were with her you lived in Carrum Downs, Dandenong and Moorabbin. You changed schools when you went to live with your grandmother, but you were bullied again at your new schools. You believe this was because of your Aboriginality. This caused you to get into fights, leading to detentions and suspension from school. You decided to leave school in year 8 because of these negative experiences.

48 Your grandmother provided Koori education at a school in Frankston, and she also taught you about your Koori heritage. She passed down stories to you. Your grandmother was strict, and because of that you often preferred to stay on the streets rather than with her.

49 When you were 11 or 12 years old, a family friend, Jenny Coates, found you living in a squat in Collingwood. Jenny took you in and helped raise you with her son Arthur. You lived with Jenny and Arthur on and off for many years. Arthur views you as a little brother. Over the years, he tried to show you how to live, because you had no one else looking out for you. Arthur describes you as always being in 'survival mode'.[18]

50 When you were about 14, you went to live with your mother for a short period in Geelong. You started hanging around with the 'wrong' people and were soon caught up in the juvenile justice system.[19] You left Geelong to live near to your father in Collingwood. Your sister Jessica recalls that your mother sent you away because she was struggling with your behaviour.[20]

51 From the age of 13, you sought refuge at the Bert Williams Hall Hostel in Thornbury because you were experiencing homelessness. Your lawyers have provided the Court with some general information about that hostel.[21] You spent time at the hostel on and off until your mid-twenties. Lelly Bamblett, a worker at the hostel, supported you during your stays there. He went to court with you in your younger years when you began to get in trouble with the law. His impression was that you were a respectful, helpful young man, and very clever. You participated in literacy programs and cooking classes. Other young people looked up to you when you were there, and you looked after others.[22] Another worker at the hostel, Grant Hood, recalls that the hostel provided you with a stable bed and a meal. You often stayed with Grant and his family, and Grant trusted you to care for his children.

52 When you were 16 years old you unsuccessfully attempted TAFE courses in Art Design and Computer Technology. You worked at Hungry Jacks for about a year when you were 16 years old, but fell out with a manager. When you were nearing 20 years old you attempted some pre-apprenticeship training but did not complete this.[23]

53 You 'couch-surfed' up to the age of 20 as well as spending periods living with two friends of your father, Audra and Shane, with whom you still have contact. They have been helpful to you.

54 As to your substance abuse, you started drinking alcohol (mainly spirits) at around the age of 14, and you were using cannabis daily in your adolescence. Cannabis use has continued in adult life, except for periods in custody. Whilst you did use speed when you were younger, Mr Mandy submitted that you only started using methamphetamine (ice) after your father died in 2014.[24] The report of Dr March suggested an earlier date for commencing this drug,[25] but I accept that it is likely that you began using it at around the age of 27.

55 Based on the material before me, I accept that your childhood and adolescence were marred by very significant instability and deprivation. I will discuss how that impacts on your sentence shortly.

56 Regarding your prior criminal history, while a number of matters were dealt with between 2007 and 2009, there are long gaps in your offending history. It seems that you managed to stay out of trouble between 2002 and 2007,[26] and you also did not commit any serious offences between the time you served the sentence imposed by Judge Parsons in 2009, and the crime before this Court.[27]

57 The details of the offending between 2007 and 2009 are a little hard to unravel but in June 2007, it seems you were remanded for about a month for some dishonesty offences, for which you were ultimately sentenced to a community-based order. The Healy report notes that you completed a drug program at Moreland Hall around September 2007.[28]

58 For a large part of 2008,[29] you were on remand for more serious charges that related to offending that occurred on 1 February 2008. That offending involved you stabbing a man in the neck with scissors. That man was not known to you, but had intervened to eject you from a bar where you were pursuing another man. You were intoxicated at the time and claimed little memory of that offending. In April 2009, Judge Parsons of the County Court sentenced you to five years and two months imprisonment with a non-parole period of three years.[30] I will say more about that prior matter shortly.

59 It also seems that during 2008, you were sentenced in the Magistrates' Court, for various lower level violence and dishonesty offences (those sentences included another community based order, a suspended sentence, and several terms of imprisonment).[31] The Court has not been informed about the dates of those offences, but it appears they probably pre-dated the 1 February 2008 offending.

60 You were released on parole in August 2011, and lived with your grandmother in Collingwood for about three months. Then, you moved to Geelong and finished your parole period there. You lived with your mother and your sister at different times during this period. You completed courses that were required as part of your parole obligations, and managed to stay out of trouble. You completed your parole in October 2013.[32]

61 After you had completed your parole, you went to Alice Springs. You lived there with Jenny Coates. You were drug free at that time and had work building swimming pools. Sadly, in 2014, your father died. His body was found in a room at the Gladys Nichols Hotel. He had been deceased for some days. You returned to Victoria shortly after he died. You struggled with the grief of losing your father. Lelly Bamblett recalled that you were lost when your father died, and that his death threw you 'off the tracks'.[33] As mentioned earlier, after the death of your father you struggled with substance abuse, and began to use ice.

62 You then met your former partner Danielle, with whom you were in a relationship for five years. You lived together with her in Collingwood, Richmond and Burnley. On 15 August 2017, you and Danielle had a son, Jamarah. You were not working at this time, and you looked after Jamarah with Danielle. This period of your life was somewhat stable, but you were still using methamphetamine and cannabis, although not in front of Danielle or your son.

63 Unfortunately, your relationship with Danielle broke down in 2019 and you became homeless again. Your drug use increased significantly. Before being remanded on these charges, you were consuming excessive quantities of cannabis and methamphetamine and also drinking very heavily. Over the year or so before the offence you were starting to hear voices, which was probably connected to your drug use.

64 Whilst in custody, you have been abstinent from drugs and alcohol. The voices you were hearing before your arrest have stopped. Overall, you seem to be doing well in custody. Notably, since early June 2021, you have been employed as a Peer Educator in custody. In that role, you assist other prisoners with information about prison resources, help with orientation for new prisoners, and you participate in drug and alcohol groups. You perform your duties very well,[34] and have expressed pride in being able to do so.[35] You say that your son is a motivating factor for you to rehabilitate. Your literacy has improved through courses you have done in prison over the years.

65 You are not currently prescribed any medications and you do not have any diagnoses other than those set out in Dr March and Ms Rodgers' reports, which I will discuss shortly.

66 I received three psychological reports, which were all prepared at different times, and there are some variations in the findings about you. Ultimately, your counsel did not press a submission that your moral culpability should be reduced because of reliance on Verdins factors.[36] However, the psychological material before me is still relevant to understanding the impact your deprived childhood has had on you, and how substance abuse has impacted on you over the years.

67 The first report in time is that of Bernard Healy, which was prepared in 2008 for the sentencing hearing before Judge Parsons. Mr Healy spent about three hours with you at that time. He assessed you as having just average intellectual capacity. He found your powers for delayed recall were reasonably sound. He also found, on personality testing, that you were vulnerable to substance use and had a hypomanic trend, which would be markedly exacerbated by drug and alcohol use.

68 Ms Rodgers assessed you earlier this year. She found you had symptoms of depression, anxiety and post-traumatic stress disorder. She noted your difficult childhood and your substance abuse. She considered that if you had the right supports, you had good chances of rehabilitation.

69 Dr March, who is a neuropsychologist, assessed you in mid-July 2021. She spent a total of four hours with you across two days.[37] Dr March also gave evidence at your plea hearing. At the time of writing her report, Dr March did not have a copy of Mr Healy's report, or the letter provided by Dr Katherine Honeyman about your role at the MRC. Nor did she have the community research report, which was not in existence prior to writing her report.[38]

70 In her report, Dr March assessed you as having a cognitive impairment, with intellect well below your age group.[39] However, she did observe that your lack of effort during testing might help explain the low scores you obtained. She also found that you have chronic polysubstance abuse, and that you could have been suffering from drug-induced psychotic episodes before being remanded.[40] However, Dr March was unable to give a firm view on the causal contribution of drug use to your offending.

71 Dr March also found that you have a major depressive disorder of moderate degree and that the combination of your mental health symptoms and your cognitive impairment, will cause you difficulty in dealing with aspects of daily life such as managing finances, or applying for accommodation, but that you could manage shopping, cleaning and cooking.

72 Dr March revised her findings somewhat during her evidence at your plea hearing, after having access to the other reports that she had not seen before writing her report. She agreed that on intellectual testing you performed better during Mr Healy's assessment than during the tests she applied.[41] She indicated that your intellectual functioning may have diminished somewhat due to substance abuse since Mr Healy saw you in 2008, although that could not wholly explain the different test outcomes. However, even in her own report she found that your presentation, ability to communicate, and your Peer Educator role in prison suggested capacities greater than those demonstrated on testing by her.[42] Further, her impression was that you are not a person with significant deficits.[43]

73 I should state here that I am satisfied based on the report of Bernard Healy, the remarks of Judge Parsons when he sentenced you in 2009, the community research report, and the letter provided by Dr Katherine Honeyman about your Peer Educator work at the MRC, that, when not abusing drugs and alcohol, your capacity to learn and to engage in meaningful activities and work is quite good. Indeed, I note that in 2009, Judge Parsons heard evidence from a Koori elder, Mr Green,[44] that you were attempting your VCE in prison and you had successfully completed other courses whilst in jail.[45] He also said that you had a good work ethic and were a good organiser. He also told Judge Parsons that you appreciated the importance of avoiding drugs and alcohol.

74 Unlike Mr Healy, Dr March did not perform personality testing but she considered that Mr Healy's findings supported her view that you have a vulnerable personality style pre-disposing you to an inability to see two sides of an argument. This combines with your emotional dysregulation which stems from a background of lifelong personal trauma. These factors have led to emotional and behavioural impulsivity putting you at risk of making rash decisions, or failing to control your behaviour, especially when you are drug affected. She considered that your emotional impulsivity could be improved through culturally competent psychological and/or social work supports. Your cognitive impulsivity would be best addressed by stopping the use of drugs and alcohol, to allow your brain to recover. On the other hand, if you go back into the community and continue your previous levels of substance abuse, your brain functioning will be further compromised.[46]

75 Your counsel did not dispute the objective seriousness of the offending. Although Verdins factors are not directly applicable to your offending, I have taken account of your fluctuating mental health in a general way. I accept that you had developed a worsening reliance on drugs and alcohol after the break-up with Danielle in 2019, and these substances impacted you in the lead up to the offence.[47] Mr Mandy's main submission was that the principles set out in the High Court case of Bugmy v The Queen ('Bugmy') operate to reduce your moral culpability to some degree.[48] Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing, in and of itself, because it is likely that moral culpability is less than for someone whose early years have not been marked by such disadvantage.[49] The effects of such hardships do not diminish over time and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the Court's assessment of moral culpability for the offence itself and also for the Court's consideration of the weight to be given to your prior criminal history.[50]

76 On the basis of the material filed on your behalf and produced on your plea, I am satisfied that your childhood involved 'profound' deprivation based on:

(a) Your parents separation when you were three, resulting in an unstable home environment from that time onwards, in which you were moved frequently between the households of different family members;

(b) Your early exposure to frequent physical violence against your mother and yourself by your mother's partners in circumstances where your mother was unable to protect you;

(c) Your disrupted schooling, with attendance at many different schools and frequent bullying, including racist taunts at school;

(d) The fact that these unhappy circumstances caused your to stop attending school in year 8 and take to the streets;

(e) Your experience of intermittent homelessness from the age of 12;

(f) Your introduction to alcohol from around the age of 14; and

(g) Your introduction to drugs from around the age of 14 or 15.

77 I take account of the fact that both your mother and grandmother could be described as having suffered the experience of the Stolen Generations, with the impacts of intergenerational trauma impacting the way you were brought up. Your father also struggled from a young age, and had issues with substance abuse and was imprisoned at one time.[51]

78 Over the course of your life you have been helped by members of the Koori community, and some of those people contributed to the community research report. Despite this community support, it is clear that your childhood and adolescence were marred by great instability, social and emotional deprivation, and poverty. Those experiences have had, and will continue to have, a significant impact on you. Instability in your home life and attachments as a child disrupted your schooling and left you vulnerable to substance abuse as a teenager. At the time of the current offence you were in the throes of a severe addiction to alcohol and drugs.[52] As explained by Dr March, your constitutional vulnerability to poor control of emotions and impulses is likely to be worsened by substance abuse. I consider it likely that lack of sleep following a period of methamphetamine use probably contributed to your irrational and impulsive behaviour when you committed the offence before the Court.

79 As mentioned earlier, you were sentenced by Judge Parsons in the County Court in April 2009 for an earlier stabbing that occurred in February 2008.[53] Although you were still quite young when that offence was committed, it is of real concern when approaching sentencing for the present offence. Even though the earlier offence was committed twelve years before the matter before this Court, on this occasion tragically, a life has been lost. Whilst I accept that your prior criminal history is attenuated by your deprived upbringing,[54] you are not able to be sentenced in the same way as a person who does not have a relevant criminal history.

80 I note however that the Crown agreed that Bugmy principles apply to your case. As mentioned, these principles form part of the consideration of the present offence and your prior history. The material before the Court is suggestive of a repetition of dysfunctional patterns of behaviour that developed earlier in life, such as resorting to drug and alcohol use in response to stressors occurring in your life. The breakup with Danielle seems to have triggered a pronounced downward spiral.

81 In summary, I consider your moral culpability for the current offending is reduced by Bugmy factors, but remains moderately high. You are not a person who lacked the capacity to understand right from wrong. Indeed, you have demonstrated that you are capable of operating as a functioning member of society despite your deprived background.

82 Apart from a minor charge of possessing cannabis, there have been no other offences since your court appearance before Judge Parsons in April 2009. In your favour, you successfully completed parole from that sentence and later managed to start a family of your own with Danielle. You were seen to be making a real effort to help care for your son despite still using drugs during that time. It was not revealed in the materials before me as to whether drug and alcohol abuse contributed to the breakup with your partner Danielle, but it would not be surprising if that were so.

83 Your life took a turn for the worse after the breakup with Danielle and you became homeless again, falling back into severe substance abuse and becoming acutely sleep deprived at the time of the offence. Whilst self-induced substance abuse does not excuse your crime,[55] I accept that in your case, it has been extremely difficult for you to overcome patterns of behaviour that have their roots in your early life.

84 Your case highlights the importance of proper material being put before the Court before Bugmy principles can be properly enlivened. The Court was assisted by the detailed information provided in the community research report, and the information contained in the psychological reports about your life history and how it has affected you.[56]

85 Manslaughter is an offence that can arise from a wide range of different circumstances leading to a broad spectrum of appropriate sentences.[57] I have paid closer attention to unlawful and dangerous act manslaughter sentences that have significant comparable features,[58] or that help to provide a broad indication of range.[59]

86 In DPP v Edwards,[60] the female Aboriginal offender was initially charged with murder, but pleaded guilty to manslaughter after having inflicted a single stab wound on her victim. She was affected by drugs at the time of her offending, and had not slept for a number of days. She had a traumatic childhood, with a diagnosis of complex Post-Traumatic Stress Disorder. At the time of her offending, she was around the same age as you.[61] On the other hand, her offence was pre-planned and involved her purchasing a knife before the stabbing and calling the police to tell them about her intentions. The trial judge in that case described the offending as a 'particularly serious case of manslaughter', and the Court of Appeal agreed.[62]

87 In DPP v Giannioudis,[63] the female offender pleaded guilty to manslaughter in circumstances where she had had stabbed an acquaintance once to the chest when he came up to her car in a public street where she was parked with the intention of selling drugs. The offender, like you, did not render assistance to the victim after the stabbing. Unlike your case, there had been some past animosity between the offender and the victim who had purchased drugs from her in the past. The offender's background included childhood sexual abuse and self-harming during adolescence as well as a long-standing drug addiction. She had prior convictions for offences of violence close in time to the charged offence, although less serious than your February 2008 offending.

88 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. His criminal history included relevant and recent offending and his crime was not mitigated by a plea of guilty or any significant remorse. On the other hand, he was afflicted by significantly impaired mental health.[65]

89 The cases I have referred to show that the sentencing exercise in each case is intrinsically unique. I have considered these cases along with many other manslaughter sentences to inform current sentencing practice as part of the mix of factors to be considered in arriving at a just sentence.

90 General deterrence, denunciation, and just punishment are all important in your case. Specific deterrence is also relevant because you have a prior conviction for a similar offence along with other less serious offences involving assaults. However, each of these sentencing purposes is moderated as a result of the Bugmy factors that I have already discussed.

91 Regarding rehabilitation, it is encouraging that you still have people in your corner. Lelly Bamblett is committed to supporting you during your custodial sentence and during any period of parole. He considers that you could still have a good future. Jenny Coates and Arthur Ellis are also supportive of you, and Arthur has been in contact with you while you have been in custody. Grant Hood considers you like one of his own children, and has said you will always have his support. You also have family members who care for you. Those who support you confirm that you have tended to lapse into severe substance abuse when struggling against hardship such as when you lost your father. You have a son now who is a source of motivation for you to turn your life around.

92 Of course, you have had community support in the past, including after your release from prison on parole in 2011, so you will require intensive supervision during any grant of parole in order to avoid slipping back again.

93 You are still a relatively young man, and have shown enthusiasm about your role as a Peer Educator in prison. This is encouraging. Ultimately, your future prospects depend heavily on your ability to avoid drugs and alcohol. This has proven difficult in the past and will continue to be so. Judge Parsons assessed your rehabilitation prospects as 'reasonably good' when he sentenced you in 2009, but you went on many years later to commit the crime that brings you before this Court.

94 Nevertheless, I am mindful of the long gaps in your history of violent offending. I do not rule out that with a high level of support and supervision you have the potential to overcome your drug and alcohol addiction after you are released. It will require enormous determination by you. Taking all matters into account, I conclude that your prospects of rehabilitation are not unreasonable. The information that came to light after Dr March prepared her written report shows a brighter picture of your capacity to adapt and learn from your past mistakes than might have been apparent when she wrote her report.

95 Therefore, whilst community protection is an important aspect of the sentence to be imposed, it does not require the same prominence as it might if you were incapable of responding favourably to treatment and supervision upon release. In fixing your non-parole period I wish to emphasise that it is vital that the authorities offer you intensive supervision upon any grant of parole. It is also vital that you make the most of any opportunities that you may be afforded in this regard.

96 As required by s 5(3) of the Sentencing Act 1991 ('Sentencing Act') I apply the principle of parsimony.

97 Mr Harrison, on the charge of manslaughter, you are convicted and sentenced to a term of 9 years and 9 months imprisonment. I fix a non-parole period of 6 years and 6 months. I declare that you have already served 554 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.

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

[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] Summary of Prosecution Opening dated 21 May 2021 ('Plea Opening').

[3] Dated 1 September 2021 ('Crown Written Submissions').

[4] From the mother and two sisters of Dhieu Manoah.

[5] That statement is dated 7 May 2020 and formed part of the materials served pursuant to s 32 of the Criminal Procedure Act 2009; Transcript of Proceedings (DPP v Harrison, S ECR 2020 0238, Jane Dixon J, 3 September 2020 ('Transcript'), 79-81.

[6] Defence Submissions on Plea dated 25 August 2021 ('Defence Written Submissions').

[7] 'Confidential psychological report' of Megan Rodgers, Psychologist.

[8] 'Medico-legal Neuropsychology Assessment' of Dr Evrim March, Clinical Neuropsychologist.

[10] Pursuant to s 198B of the Evidence Act 2008 ('the EA').

[12] Blood ethanol content was found to be 0.13g/100ml, report of Dr Yeliena Baber dated 7 August 2020, and attached Toxicology Report of Dr Mark Chu dated 30 July 2020, at Crown Exhibit 22, on s 198B Examinations.

[14] Worboyes v The Queen [2021] VSCA 169, [35]-[39].

[15] [2021] VSCA 169.

[16] In the 'Bringing Them Home' report of the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families in April 1997.

[17] In this regard see also the dissenting judgment of Eames J in R v Fuller-Cust [2002] VSCA 168, [91].

[18] Community research report, interview with Arthur Ellis, 4.

[20] Statement of Jessica Harrison, read aloud by counsel for the Crown Grant Hayward during the plea, by agreement with the Defence.

[22] Community research report, interview with Lelly Bamblett, 5.

[23] In architectural design and furniture making at RMIT.

[25] Dr March says in her report that you commenced using methamphetamine at age 16, and have had a daily habit since then. Whereas Ms Rodgers says in her report that you started using methamphetamine at age 27. Mr Healy does not mention methamphetamine use in his 2008 report.

[26] [2009] VCC 1847, [11].

[27] There is a conviction for possess cannabis in 2012 resulting in a modest fine.

[30] Having already spent 244 days in custody at the date of sentence, which was reckoned as time served.

[31] The longest being six months for violent offending, including affray, and three charges of recklessly causing injury, the details of which were not explained. You were sentenced to an aggregate of six month imprisonment, 180 days having already been served. That day you were also charged for breaching your 2007 community based order. You were re-sentenced for those offences to two months imprisonment, wholly concurrent with your 180 day sentence. Further, that day you were also resentenced on the charges that led to both your 2007 and 2008 community based orders. For each set of charges you were re-sentenced to two months imprisonment. Both of those terms were served concurrently with the six month term imposed that day.

[33] Community research report, interview with Lelly Bamblett, 5.

[34] Letter from Dr Katherine Honeyman dated 15 June 2021, Defence Exhibit 4.

[36] R v Verdins & Ors [2007] VSCA 102.

[37] Two sessions of two hours each on 14 and 15 July 2021.

[38] She did have a copy of Ms Rodgers' report.

[39] She assessed you as having very low intellect, with your verbal comprehension, perceptual reasoning, and working memory falling within the extremely-low borderline range.

[40] Dr March also made reference was made to possible physical head injuries over the course of your lifetime (including several car accidents in 2001) but there was no solid evidence of any significant ongoing damage or Acquired Brain Injury from these incidents.

[41] As indicated through the tests Mr Healy applied and the scores achieved on those.

[42] During the testing performance was at a level consistent with intellectual disability.

[43] Dr March considered that her ultimate findings were consistent with Mr Healy's findings. She would not have expected you to have performed at the same level you did when you were assessed by Mr Healy in 2008, because of your consistent and heavy drug and alcohol use since that time, which would have led to a deterioration in your brain function. However she agreed that this factor would not fully account for the different outcomes.

[44] Mr Green was said to have been visiting fortnightly and to have known you for three or four years.

[45] [2009] VCC 1847, 5.

[46] She reiterated her concerns for your ability to manage complex aspects of life like budgeting and applying for secure accommodation if that occurred, Transcript, 32.

[47] You used methamphetamine in the days prior and used alcohol and cannabis in the 24 hours beforehand. Transcript, 15

[48] [2013] HCA 37.

[49] See also: Ellis v the Queen [2021] VSCA 229.

[50] Bugmy principles have been applied by Victorian courts to afflicted offenders from different backgrounds and life experiences who have endured particular childhood deprivation. DPP v Hermann [2021] VSCA 160; and Gencev v the Queen [2021] VSCA 188 ; Ellis v the Queen [2021] VSCA 229.

[52] Defence counsel also referred to the Queen v McKee and Brooks [2003] VSCA 16; [2003] 138 A Crim R 88 on this point.

[53] [2009] VCC 1847.

[54] as discussed by the Court of Appeal in Ellis v the Queen [2021] VSCA 229.

[55] And can sometimes be an aggravating factor.

[56] There were many unanswered questions when counsel first filed their submissions, but by the end of the plea hearing, the Court had received more detailed information relevant to Bugmy principles in the present case.

[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] Keeping 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' Per Nettle J in Markarian v R [2005] HCA 25, [66]. Apart from the comparable cases discussed in detail.

[59] Regarding range see Vu v the Queen [2020] VSCA 59 (TES of 13 years and 6 months, non-parole period 10 years for manslaughter and recklessly cause serious injury: the Court of Appeal upheld 12 year sentence for manslaughter but altered orders for cumulation). Vu, was on parole for a serious drug offence, when he confronted and stabbed his wife and her lover after discovering their affair. He killed the lover and badly wounded his wife. Vu's offer to plead guilty to manslaughter before trial was rejected. He was found not guilty of murder but guilty of manslaughter and recklessly cause serious injury. See also: R v Dellamarta [2021] VSC 220 (7 years and 6 months imprisonment, non-parole period was 5 years). Although less current, see also: DPP v Bryan [2014] VSCA 54, (8 years imprisonment, non-parole period 4 years 6 months) sustained attack on victim, and prior conviction for serious violence, but pleaded guilty early; Tiba v R [2013] VSCA 302 (10 years imprisonment, non-parole period 6 years 6 months) Tiba was on parole for an offence of violence at the time of the commission of the offence of manslaughter.

[60] [2020] VSCA 339 (9 years, non-parole period was 6 years and 9 months), sentence confirmed on appeal.

[62] [2020] VSCA 339, [37].

[63] [2019] VSC 75 (8 years imprisonment, non-parole period was 5 years and 6 months).

[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.