Director of Public Prosecutions v Frost [2019] VSC 672

1 Cody Frost, on 12 April 2019, you were found guilty of the manslaughter, by an unlawful and dangerous act, of Marcus Adam Maxwell Rowley at West Footscray on Saturday, 5 August 2017.

2 The maximum penalty for manslaughter is 20 years' imprisonment.[1] A report from the Sentencing Advisory Council published in April of this year shows that a wide range of penalties have been imposed in the last 5 or so years for this offence.[2]

3 On the evening of Saturday, 5 August 2017, you and Bethany Micallef were travelling on a city-bound train, having boarded at the St Albans Railway Station.

4 Mr Rowley was sitting in the same carriage. He caught the train some time before you. The evidence at the trial was that while on the train Mr Rowley was loud, swearing, "being a nuisance, harassing others", "very intoxicated" and "swigging" from a bottle of Jim Beam.[3] Mr Rowley's conduct was such that it attracted the attention of others. One such passenger, who was feeling uncomfortable and unsafe, called the police for assistance. She gave evidence that Mr Rowley's behaviour and interaction with 2 other passengers, his language and his drinking caused her to feel uneasy.

5 The video footage of Mr Rowley's behaviour demonstrated that such feelings of unease and lack of safety were fully understandable and rational. Not only was Mr Rowley being antisocial,[4] but, speaking generally, he was being obnoxious and, at times, confrontational. Any display of acceptance of his behaviour by other passengers appeared to be the result of seeking to defuse the situation rather than any genuine comfort with Mr Rowley's intrusive presence.[5]

6 Whilst you and Mr Rowley did not interact with each other in the carriage, you were aware of his presence. Although you had your back to him, his behaviour attracted your attention and you turned around to observe what was going on. Further, at some point during the train journey, you asked Ms Micallef whether Mr Rowley called you "junkies". She told you not to worry about it, and you acted accordingly. In short, nothing came of this.

7 Closed-circuit television footage depicted you and Ms Micallef alighting from the train at approximately 6:43 pm. The footage also depicts Mr Rowley leaving from a different door of the same carriage a few moments later.

8 It is necessary to briefly describe the layout of the Tottenham Railway Station, and the adjacent underpass where Mr Rowley was killed. Tottenham Railway Station consists of 2 adjoining platforms, with a covered waiting area in between. Pedestrians exit the station by walking through the waiting area and down a central ramp. Approximately a little over halfway down the central ramp is a smaller ramp; pedestrians can either turn left and take this ramp to exit onto Sunshine Road, or, continue down the central ramp and exit onto the Ashley Street underpass.

9 At the end of the central ramp is a steel-mesh fence lining Ashley Street, separating pedestrians from motor vehicles travelling on the roadway. Ashley Street is perpendicular to the Tottenham Railway Station and runs underneath the railway tracks. At the mesh fence, pedestrians can either turn right and walk north through the Ashley Street underpass, towards Rupert Street, or, turn left and continue south towards the Sunshine Road and Ashley Street intersection. To reach Rupert Street, there is an elevated pedestrian walkway in the underpass on the same side as the station. There is no pedestrian walkway on the other side of the underpass or on Ashley Street itself.

10 Returning to the events in question, once you alighted the train, you and Ms Micallef walked through the waiting area and onto the central ramp. Mr Rowley called out to you and Ms Micallef. She responded. Mr Rowley then loudly demanded a cigarette. Notwithstanding Ms Micallef's suggestion that you ignore Mr Rowley, you turned back towards the waiting area and handed Mr Rowley your last cigarette. You were not aggressive to Mr Rowley when this took place. On the contrary, you called Mr Rowley "mate" and informed him it was your last cigarette. Without further ado, you then moved on down the central ramp with Ms Micallef, and turned left onto the ramp heading towards Sunshine Road.

11 Video footage shows it was not until you were entering this ramp that Mr Rowley then chose to follow you. Before doing so, Mr Rowley was observed in the waiting area by others. Evidence was given of Mr Rowley shouting, and looking angry, aggressive and drunk. The video evidence presented to the court was consistent with this evidence.[6]

12 There is no closed-circuit television footage as to what happened next. There is no recording of you stabbing Mr Rowley, nor are there any witnesses who saw the offence being committed. The following summary of events is primarily based on the evidence given by Ms Micallef at trial.

13 After Mr Rowley followed you,[7] both you and Ms Micallef noticed him. Ms Micallef urged you to "keep going" so as to give Mr Rowley a wide berth. You turned right at the Sunshine Road footpath, and rounded the corner into Ashley Street.

14 As you and Ms Micallef were entering Ashley Street, Mr Rowley was still following you. Ms Micallef told Mr Rowley to "leave us alone" more than once. Ms Micallef gave evidence that Mr Rowley's behaviour at this point was arrogant, loud and flamboyant. He still held the bottle.

15 Rather than take the pedestrian walkway, both you and Ms Micallef stepped onto the road and walked north along Ashley Street itself, amongst oncoming traffic. Ms Micallef's evidence is that you did so in order to get away from Mr Rowley.

16 Mr Rowley continued to follow you and Ms Micallef onto Ashley Street. You told Mr Rowley to "get away" 2 or 3 times, perhaps more, and said to Ms Micallef, "He's still coming, he keeps coming, he keeps coming". Ms Micallef continued on her way. However, at the edge of Ashley Street, on the road-side of the mesh fence, you turned to face Mr Rowley.

17 Ms Micallef's evidence was that she turned back momentarily and saw you and Mr Rowley a maximum of a metre and a half apart, facing each other, stationary, "both in a stance to coming (sic) to heads in a fight" and that your arm was raised. Ms Micallef said she saw this in glimpses, before she ran or walked very fast along Ashley Street, to exit the tunnel.

18 Pausing here, the prosecution accepted Mr Rowley was being verbally aggressive towards you and Ms Micallef. It was also accepted that because of Mr Rowley's proximity and persistence you were feeling annoyed, agitated, frustrated and angry. Your counsel submitted this understates the gravity of the situation. It is a matter I will return to below.[8]

19 In the open space on the roadway where the confrontation took place and where other members of the public were present,[9] you then drew a large knife that you had secreted on your person.[10] In what can only be described as a violent and disproportionate response, you deliberately stabbed Mr Rowley, who was still facing you, once in the back. The knife entered at the side of Mr Rowley's back, below the armpit.

20 By this time, Ms Micallef was some distance away, having travelled quickly through the south-bound traffic on Ashley Street. After stabbing Mr Rowley, you showed no concern for Mr Rowley's well-being, but continued on foot through the traffic passing through the underpass, away from Mr Rowley. Your apparent lack of concern for your victim might in part be explained by the fact that Ms Micallef was close by and both of you were at risk as you were making your way through traffic.

21 Evidence from a witness driving on Ashley Street at the time was that the traffic was being held up "for some reason". Soon after, Mr Rowley was observed crouched on the road. Further, the bottle Mr Rowley had been carrying was found smashed on the walkway, north of where Mr Rowley was observed. There was no evidence as to how it got there, but your DNA[11] was found on the neck of the bottle.

22 You eventually caught up to Ms Micallef. She expressed her annoyance with you. In any event, you both made your way to a local supermarket and eventually caught a bus together.

23 The next day, Ms Micallef read that a man was found stabbed to death at the Tottenham Railway Station the night before. Ms Micallef told you what she had learned and asked you what had happened.

24 Ms Micallef's evidence was that upon hearing the news, you were "quite shocked", "taken aback" and that were not aware that a man had died. You said "I've got to hand myself in" and told her that she also had to go to the police and tell them. In recounting the incident, you told Ms Micallef that you "had to", that you were scared, that Mr Rowley was coming at you and had a bottle in his hand, and that it was a weapon.

25 Later, on Sunday, 6 August 2017, at approximately 10:30 pm, you attended the Footscray Police Station and said that you were there to hand yourself in. You told the police that you had brought the knife with you. You were taken into custody. You have always acknowledged that you stabbed Mr Rowley.

26 Also on 6 August 2017, an autopsy was carried out. The autopsy was conducted by Dr Gregory Young, a registered medical practitioner specialising in forensic pathology, who is employed as a forensic pathologist with the Victorian Institute of Forensic Medicine.

27 The autopsy revealed widespread grazes, abrasions and bruising on various parts of his body. It was unclear when these injuries were inflicted.[12]

28 More relevantly, the autopsy revealed a stab wound to the side of Mr Rowley's right shoulder blade, near the back of his right armpit.

29 The wound was v-shaped, with 2 arms, each measuring 4.5 centimetres in length.[13] According to the pathologist, the trajectory of the wound was from top to bottom, from the side to the middle, and from the back to the front. The depth of the wound was 19 centimetres. The knife did not pass through cartilage or bone. Dr Young deduced that at least a mild degree of force was required to inflict the injury. The manner in which you held the knife at the time of the assault was not clear on the evidence.[14]

30 The wound tract penetrated Mr Rowley's skin, fat and muscle, pierced the lower lobe of the right lung and struck the right pulmonary vein, resulting in bleeding in the right pleural cavity surrounding the right lung. The cause of death was the stab wound.

31 Dr Young was asked to offer an opinion as to how Mr Rowley was standing or what he was doing at the time he was stabbed.[15] In the absence of any footage of the incident, he said that, at most, the location of the wound was indicative of the location of Mr Rowley in relation to the weapon when it entered his body. As to whether Mr Rowley had a raised arm at the time he was stabbed, Dr Young could only say it was a possibility amongst various possibilities. On the evidence, there is no basis to make any definite finding in this regard.[16]

32 A toxicology report was also conducted on Mr Rowley, revealing a blood alcohol concentration of 0.26 percent, and a reading of 0.32 percent in the vitreous humour.[17] In addition, tetrahydrocannabinol, the active form of cannabis, was detected in Mr Rowley's urine and blood. Methylamphetamine was also detected in Mr Rowley's urine.[18]

33 On 7 August 2017, you were charged with 1 count of murder and remanded into custody. As is your entitlement, you gave a "no comment" interview to police.

34 On 3 April 2019, you faced trial for the murder of Marcus Rowley. At the commencement of the trial, you pleaded not guilty to the charge of murder and claimed that you were acting in self-defence.

35 The jury found you not guilty of murder, but guilty of manslaughter. Manslaughter is a serious offence. It involves the unintended taking of someone's life.

36 In returning its verdict to murder, the jury were not satisfied beyond reasonable doubt that you either had an intention to kill Mr Rowley or an intention to cause really serious injury. In other words, the jury did not consider that you had the requisite murderous intent.

37 However, the jury found you guilty of manslaughter. Based on the evidence before them, the jury were satisfied, beyond reasonable doubt, that your act of stabbing Mr Rowley, which caused his death, was conscious, voluntary and deliberate, and that the act was unlawful and dangerous.

38 Further, the jury did not accept that you acted in self-defence, and therefore your stabbing of Mr Rowley was not lawfully justified. Your counsel submitted that whilst the verdict necessarily meant the jury were not satisfied your response was reasonable in the circumstances as you perceived them, it was still open for the court to find, for the purposes of sentencing, that on the balance of probabilities you believed it was necessary to do what you did. Whilst the prosecution accepted that, as a matter of logic, such a finding was open, it was submitted that, on the facts of the case, no such finding should be made.

39 Marcus Rowley was born on 29 May 1993 in Melbourne. He was 24 years old at the time of his death.

40 He was raised by his biological mother and father for a short time before being placed into foster care at a young age. Without going into the details, it is fair to say that Mr Rowley had a difficult childhood.

43 Carolyn Brooke, Marcus Rowley's biological mother, attended the trial every day out of respect for her son. She described Marcus as a free-spirited young larrikin, who was funny, harmless and loved by his family. Her pain and suffering at the loss of her son is evident in her statement. Ms Brooke described being diagnosed with shingles due to stress and is undergoing grief counselling.

44 She explained that she is now generally fearful, and is afraid to open her door, or to talk to people or to face society. She described isolating herself from her friends and arguing with her family. She says her trust in humanity has been shattered.

45 She described her heart as having been destroyed and that it will never heal. She is determined not to become a bitter person so she can be there for her remaining son. She states that she misses Marcus every minute of the day. Ms Brooke described her trauma as so severe that she has considered taking her own life, however, thankfully, says that she will not do that. Although her son was not in her care for many years, in recent years they had a loving relationship.

46 Laurel-Anne Brooke, Mr Rowley's grandmother, described her grief at being deprived of the opportunity to have a relationship with Mr Rowley as a young adult, to make up for lost time and to watch him be a father to his 2 children. She described her feeling of helplessness in witnessing her daughter, Carolyn Brooke, mourn the loss of her son. She said she would have loved to have seen her other grandson have a relationship with Mr Rowley and for them to "grow old with many shared memories of good times".

47 Nicholas Brooke, Marcus' brother, described meeting his younger brother for the first time when he was 18 years of age. He stated that he and his brother were turning their lives around and that he was proud of his brother for achieving full-time employment and looking after his family. Mr Brooke explained that the death of Mr Rowley has caused a relapse in his depressive symptoms, which had led to him self-medicating in the past. Mr Brooke stated that he has nightmares in his sleep.

48 The year following Mr Rowley's death has been tough for Mr Brooke, but "things are slowly getting back on track". Mr Brooke grieves for the loss of his younger brother, for no longer having him in his life and for the fact his brother will never be able to meet Mr Brooke's partner.

49 Finally, Mr Rowley's foster mother, Cheryl Russell, spoke of her anger, sadness and the emotional hole she now has in her life. Mr Rowley was a very loved family member and Ms Russell noted he is sadly missed by all. Ms Russell referred to her "wonderful memories" concerning Marcus.

50 Each of the victim impact statements clearly demonstrates the devastating impact the death of Mr Rowley has had on his family. I have taken them into account in determining the appropriate sentence to impose on you.

51 You were born in New Zealand on 21 March 1982. You were 35 at the time of the offence and are now 37 years of age.

52 You were raised by your biological mother and step-father. You were conceived as a result of a sexual assault, and have never known your father. Your mother passed away in early 2016. You are not an Australian citizen.

53 During your early childhood, you suffered physical abuse from your step-father, who was an alcoholic. There were times the abuse resulted in your hospitalisation. As a result of your turbulent home environment, you lived with other family members, in foster care as well as on the streets. At 11 years of age, you and your family moved to Melbourne. After relocating, you ran away from home on a number of occasions, committing acts of theft and consuming alcohol and illicit drugs. At 13 years of age, you were placed into foster care but, after some months, were again living on the streets.

54 You failed to complete your education past year 8. In your adolescent years, you developed an addiction to illicit drugs and regularly used cannabis, ecstasy, heroin, amphetamine and methylamphetamine. You continued to consume alcohol on a regular basis.

55 In your early twenties, you moved back to New Zealand to live with a family member. You experienced a period of relative stability, evidenced by you taking your medication as prescribed and obtaining full-time work as an industrial painter. However, at around 22 years of age, you suffered a gunshot wound to the head, which resulted in you being placed in a medically induced coma for a number of months. You sustained an acquired brain injury and suffered memory impairment as a result of this incident. Subsequently, you required speech therapy and physiotherapy to regain your speech and physical abilities.

56 At 25 years of age, you moved back to Melbourne. In more recent times, you resided with your step-father and step-brothers. For reasons undisclosed, in March 2017, you had a falling out with your step-father and moved in with your sister in Point Cook. You were employed as a full-time machine operator until approximately 1 month prior to your arrest on 6 August 2017.

57 One or 2 weeks before the offence, you moved out of your sister's residence at Point Cook and essentially became homeless. You then lived in the Footscray area. During this time, you met up again with Ms Micallef, who was also homeless. You and Ms Micallef are known to each other. According to Ms Micallef, you have a very good friendship.

59 In 1999 and 2000, between the ages of 17 and 18, you were convicted and detained in a youth training centre for a number of drug, violence and dishonesty offences. These included trafficking and using heroin, theft, intentionally and recklessly causing injury, committing assault in company, unlawful assault and assault by kicking.

60 In 2001, you were sentenced to a term of imprisonment, again for convictions concerning dishonesty and violence. You were also convicted of possessing, carrying and using a handgun without a licence.

61 In 2002, you were convicted of various offences, including burglary, theft, possessing and disposing of property that were the proceeds of crime, possessing a controlled weapon without excuse, possessing cannabis, attempted theft and theft of and from a motor vehicle. You were sentenced to a term of 130 days' imprisonment. You were also fined, ordered to complete unpaid community work, ordered to undergo treatment for alcohol and drug addiction and were the subject of a community based order.

62 As already noted,[19] you relocated to New Zealand for a number of years and then returned to Melbourne in 2007.

63 Then, in 2011, at the age of 29, you were convicted of the offence of intentionally causing serious injury. You were sentenced to 6 years' imprisonment with a non-parole period of 4 years.[20]

64 Next, in 2012, you were convicted and sentenced to a further term of imprisonment for committing criminal damage, carrying a controlled weapon without excuse and recklessly causing injury.

65 Having served the full term of your sentence, you were released from prison on 28 February 2015.

66 In 2016, you were found not guilty by reason of mental impairment of recklessly causing serious injury and recklessly causing injury, for acts committed on 28 April 2015. On 19 July 2016, you were released on a non-custodial supervision order for an indefinite term, with a nominal term of 7 years and 6 months, subject to conditions.[21]

67 You breached your non-custodial supervision order in mid-July 2017, when you became homeless, and ceased complying with the requirement to engage in a psychiatric review with Forensicare. An emergency apprehension request was made to the police for your immediate arrest.[22] You were not located until you presented yourself to the police on 6 August 2017 for stabbing Mr Rowley.[23]

68 As is evident, since 2009, you have been a member of the community for only a little over a year, having spent the majority of that time in custody.

69 Although not all the details have been specifically referred to, in summary you have in the order of 52 previous convictions or findings of guilt, resulting from over 12 court appearances from 1999 through to 2012. Your criminal history is a matter to be taken into account, including with respect to the factors of specific deterrence and your prospects of rehabilitation.

70 Three expert reports have been filed on your behalf: a report from Dr Katinka Morton dated 19 April 2017; a report from Dr Adam Deacon dated 27 May 2019; and a report from Associate Professor Warrick Brewer dated 30 June 2019.[24]

71 Dr Morton, a psychiatrist, prepared a report pursuant to the non-custodial supervision order imposed on you as a result of your conduct in April 2015.[25] The report sets out your background, outlines the relevant circumstances, summarises a mental state examination conducted on you, and discusses your sister's plans (at that time) to relocate and the impact that would have on your therapy. The report gives a broad summary of your criminal history as at April 2017.[26]

72 Dr Deacon is also a psychiatrist. His report was prepared specifically for the sentencing hearing in this case. It outlines your personal, medical and psychiatric background.

73 Both psychiatrists are in agreement that you suffer from chronic paranoid schizophrenia. You also exhibit traits of an anti-social personality disorder. Both psychiatrists understand that your illness is complicated by your chronic polysubstance abuse and varying adherence to antipsychotic medication.

74 In both reports, it is stated that you do not agree with your diagnosis of chronic schizophrenia and instead believe that you have suffered drug-induced psychoses. In any event, you are aware that your psychotic symptoms promptly resolve when you abstain from substance abuse.

75 You experienced your first episode of psychosis at 15 years of age. You have been admitted to inpatient psychiatric units on several occasions throughout your life, due to drug-induced psychotic episodes and been the subject of community health follow-up initiatives.

76 Dr Morton reported that you have an acquired brain injury as a result of you having been shot to the head in 2004.[27] She expressed concerns with your poor level of insight into your illness, and the aggravating impact your frequent substance abuse had on your risk of relapse into psychosis.

77 As for the events leading up to the stabbing of Mr Rowley, you admitted that you provided a "few dirty urines" whilst you were subject to the non-custodial supervision order, however, you reported being mostly drug-free up until 1 week prior to the offence. Dr Deacon's report provided that, during that week, you used a combination of methamphetamine, cannabis, pills and alcohol on a daily basis. You ingested these substances in "copious amounts" until you collapsed, then, upon gaining consciousness, continued to use these substances.

78 It was also reported that you ceased taking your antipsychotic medication 4 days prior to the events in question, however you were "adamant" that you were not mentally ill at the time of the offence. Whilst Dr Deacon is unable to provide an opinion on your mental state around that time, he stated that it is "very unlikely" that you were psychotic, but that you were likely to have been substance affected. He stated that it is unclear whether you were paranoid at the time.

79 Dr Deacon stated that you were unwilling to discuss the offence, apart from you stating that you defended yourself against Mr Rowley.

80 According to Dr Deacon, whilst you do not agree with your diagnosis, you are willing to take antipsychotic mediation to assist with your sleep. You see a psychiatrist for monthly check-ups. You have generally adhered to your medication treatment whilst in prison and have not experienced any psychotic symptoms since being in custody. Indeed, you volunteered to Dr Deacon that because of your background you have been "institutionalised", and did not find the custodial setting difficult.

81 According to Dr Deacon, you will require indefinite psychiatric treatment.

82 The report of the clinical neuropsychologist, Associate Professor Brewer, provided an extensive history of your background, largely based on previous professional reports as well as information provided by you. In addition to the gunshot to your head, he referred to you reporting the emotionally distressing impact of multiple assaults including those resulting in a fractured arm and a broken neck, and of being shot in the stomach at close range.

83 In your consultation you stated that Mr Rowley "came at [you] with a glass bottle" during your confrontation with him.

84 Mr Brewer performed various tests concerning your mental capabilities and state. He stated there was no evidence that you were thoroughly psychotic when you stabbed Mr Rowley, or that psychotic phenomena were present leading up to that event. Mr Brewer expressed the opinion that the impact of your antisocial personality disorder and your substance abuse "leading up to and at the time of the offending [was] moderate".

85 In short, his conclusion was that none of the factors concerning your mental illness or disorder, or your drug abuse, were causal of your offending behaviour. Further, in line with your own observations, it was observed that you appeared to benefit from being imprisoned when compared to less restrictive management frameworks.[28]

86 Consistent with this last observation, your prospects of improvement in response to rehabilitation were considered very poor unless you were compelled to engage in treatment involuntarily.

87 Finally, whilst acknowledging your initial response to the news of Mr Rowley's death,[29] Mr Brewer stated that your behaviour suggested little remorse generally. In reaching this conclusion, reference was made to your propensity for either feigning psychotic phenomenology or for fabricating triggers emanating from your victims to explain your assaults. Whatever the level of remorse you have exhibited, according to Mr Brewer, it was not sufficient to curtail the ongoing trajectory of your risk for aggressive behaviour.

88 According to the Sentencing Act 1991 (Vic),[30] there exists a number of distinct purposes for which sentences may be imposed. Broadly speaking, sentences serve to punish an offender to the extent and in a manner that is just in all the circumstances, to deter the offender or others from committing offences of the same or similar character, to establish conditions which may facilitate the rehabilitation of the offender, to manifest denunciation of the conduct in question and to protect the community.[31]

89 The court is also required to take into account certain factors.[32] The weight and emphasis to be given to the various factors is a matter for the sentencing judge and depends on the objective facts and circumstances of each case.[33]

90 It is for the sentencing judge to identify all the factors that are relevant to the sentence, to consider their significance, and to then make a judgment as to the appropriate sentence.[34]

91 Further, consideration of the maximum sentence[35] and the fixing of the non-parole period are only "part of the larger task of passing an appropriate sentence upon the particular offender".[36]

92 As to the objective gravity of the offence, your counsel submitted that your conduct was spontaneous and without any quantifiable degree of planning. Further, he submitted the fact that Mr Rowley came to your attention was brought about by his conduct, which was outward and unpredictable, and involved a level of provocation. This was despite you having previously abated confrontation by handing over a cigarette and voluntarily distancing yourself from Mr Rowley. Furthermore, it was contended that being on a public road with attendant traffic at the time of the stabbing added to the stress of the situation. It was submitted the circumstances were such that there was "some breakdown in ordinary calm [and] contemplative reasoning in response". In my view, each of these contentions is soundly based, and they have been taken into account in the assessment of the gravity of the offending.

93 However, I do not accept the submission that it should be found that you believed it was necessary to do what you did.[37] On the facts before the court, I cannot be satisfied on the balance of probabilities that the circumstances could lead any person not causally affected by mental illness to believe it was necessary to drive such a large knife into the torso of another in the manner that you did. Such an act was plainly disproportionate and unwarranted.[38] Whilst it is accepted that it is more likely than not that Mr Rowley was more than merely verbally abusive towards you, and the manner in which he pursued you and Ms Micallef, with a bottle in hand, gave some basis for feeling confronted and threatened, there is no proper basis to find that Mr Rowley came at you[39] in such a manner that would allow you to believe, reasonably or otherwise, that it was necessary to insert a large knife 19 centimetres into his upper body.[40]

94 This conclusion as to the absence of a belief of necessity is fortified by observations made as part of the expert evidence.[41]

95 You have shown little, if any, remorse and no discount to your sentence will be afforded in this regard. Further, given your history, I do not consider your prospects of rehabilitation to be strong.[42] Furthermore, I consider specific deterrence is a factor to be given significant weight, in conjunction with just punishment, general deterrence, denunciation and protection of the community.

96 As you are likely to be deported at the end of your incarceration, this must also be taken into account. I note your counsel indicated you have accepted the likelihood of deportation and that you hope you can start afresh when that eventuates.

97 Taking each of the matters referred to above into account, and balancing the factors as best as I am able, on the count of manslaughter you are convicted and sentenced to be imprisoned for a period of 10 years and 6 months. I fix a minimum non-parole period of 7 years and 9 months.[43]

98 Pursuant to s 18 of the Sentencing Act, I declare that 795 days of imprisonment, not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[44] I shall direct that declaration to be noted on the records of the court.

[1] Crimes Act 1958 (Vic), s 5.

[2] Sentencing trends in the higher courts in Victoria 2013-14 to 2017-18 (Sentencing Snapshot, No 224, April 2019). As to comparable cases, see also Lee v The Queen [2018] VSCA 343, [31]-[32] (Ferguson CJ, Priest and Beach JJA), referring with approval to Director of Public Prosecutions v Weybury [2018] VSCA 120; (2018) 84 MVR 153, 165 [33]-[34] (Maxwell P and Hargrave JA), 170-171 [54] (Priest JA).

[3] The bottle was a regular sized bottle of Jim Beam.

[5] In this regard, it is noted that the call for assistance was made after the passenger in question had been observing Mr Rowley's conduct for a significant period of time, and was not simply made in response to Mr Rowley's initial approach to the 2 passengers he travelled alongside.

[6] The video evidence did not include audio and the witness who gave evidence of the shouting was wearing headphones and could not hear what was said.

[7] The prosecution submitted the evidence was equivocal and it was not open to find that Mr Rowley was pursuing you. I reject this submission. The video evidence (showing Mr Rowley confronting you in the waiting area, and to the limited extent it shows Mr Rowley proceeding in the same direction down the central ramp), the actual course taken by Mr Rowley (including ending up on the road rather than remaining on the footpath) and the evidence of Ms Micallef strongly suggests Mr Rowley was consciously following you and Ms Micallef.

[8] See pars 92-93 below.

[9] Although there was no evidence of anyone actually witnessing the stabbing, there was passing traffic at the time and members of the public were exposed to the immediate aftermath of your crime.

[10] The knife had the appearance of a carving knife and was 29 centimetres in length, with a blade measuring 14.7 centimetres. There was no evidence as to why you were in possession of the knife. Although your counsel did not seek to justify your possession of the knife, he referred to your homelessness as an explanation as to why it was in your possession.

[12] Dr Young gave evidence that he was unable to age the bruises and abrasions beyond providing an estimate based on their colouring. He also accepted that he was unable to determine whether the abrasions and bruising were inflicted at the same time as the principal injury.

[13] Dr Young formed the view that, given the "underlying muscle had 1 injury", it would be "highly unlikely for there to have been 2 separate applications of force, causing the v-shape", and that the more probable cause of the appearance of the wound was "kinetic movement".

[14] Dr Young gave evidence that whilst he could determine how the weapon entered the body, he was unable to determine how the weapon was held.

[15] For example, Dr Young was asked whether Mr Rowley's right arm was raised at the moment the knife entered his body.

[16] See also the summary of the evidence of what you said to Ms Micallef upon learning of Mr Rowley's fate: par 24 above.

[17] That is, 0.26 grams per 100 millilitres and 0.32 grams per 100 millilitres respectively.

[18] It was not possible to quantify from the urine the level of methylamphetamine that had been consumed.

[19] See pars 55-56 above.

[20] That sentence was served from the time you were remanded on 28 February 2009. Further, the period of 7 years up to 2009 without any charges was observed by Coghlan J as an important factor in your favour, noting that the prior offending was consistent with your drug addiction and mental illness: R v Frost [2011] VSC 573, [21].

[21] See DPP v Frost [2016] VCC 1025 (Judge Quin).

[22] The request was made pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 30.

[23] See par 25 above.

[24] The desirability of obtaining the last of these reports only became apparent shortly before the hearing on 30 May 2019. The parties decided to proceed with the hearing on that date, subject to the further report being provided in due course and any supplementary submissions being made. As it turned out, the hearing on 30 May 2019 was adjourned during the prosecution's submissions because of your agitated state. The parties agreed on the further hearing date of 15 July 2019.

[25] See par 66 above.

[26] The summary includes references to various charges. Of course, it is the offences the subject of convictions that are to be taken into account.

[27] See par 55 above.

[28] In light of these conclusions, no submission was made on your behalf based on R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [26], 276 [32] (Maxwell P, Buchanan and Vincent JJA): see also pars 68, 80 above.

[29] See par 24 above.

[31] See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476.8-476.10 (Mason CJ, Brennan, Dawson and Toohey JJ).

[32] Sentencing Act, s 5(2).

[33] Cf R v Young [1990] VicRp 84; [1990] VR 951, 954.6-955.6 (Young CJ, Crockett and Nathan JJ); R v Williscroft [1975] VicRp 27; [1975] VR 292, 299.8-301.3 (Adam, Starke and Crockett JJ).

[34] See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ), 378 [51] (McHugh J). See also AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, 122 [18] (McHugh J, dissenting).

[36] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 128 [17] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). This case concerned s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the statutory standard non-parole period in New South Wales, however, this observation applies generally.

[37] See par 38 above.

[38] The fact that your DNA was found on the neck of the bottle (see par 21 above) is, as submitted by your counsel, consistent with you having disarmed Mr Rowley. However, it is also consistent with other possibilities, including you smashing the bottle after you stabbed him. A complete lack of evidence about how the bottle came to be broken on the walkway means no finding can be made on the issue as to how the bottle might have been used during the confrontation.

[39] See pars 24, 83 above.

[40] Notwithstanding the blade was 14.7 centimetres, the wound inflicted had a depth of 19 centimetres: see par 29 above. As the expert pathologist deposed, even with kinetic movement (see fn 13 above), the infliction of such a wound required at least a mild degree of force with this lethal weapon.

[41] See esp pars 85, 87 above.

[42] See also par 86 above.

[43] Sentencing Act, s 11.

[44] Section 18(1) and (4).