DPP v Gill [2009] VSC 346

4 The circumstances of Mr Davies' death were as follows.

5 On Friday 18 April 2008, you and the deceased, you both being of similar age, were part of a larger group of young persons socialising at a unit in Bell Street, Redan in Ballarat occupied by Shannon Watson. You and others were consuming alcohol. A number of the group, including you, moved on to another premises, in Talbot Street South, where an argument occurred between you and Mr Watson and you, Mr Gill, were told to leave the premises. Ultimately, you and the others returned to Bell Street. You commenced behaving inappropriately towards a young woman and assaulted her (statement of Monique Varin D20). You were ejected from the premises, having been confronted by Mr Watson because of your behaviour towards the young woman. You had been drinking heavily and were intoxicated. You went to your own premises in Darling Street, Redan, and after further activity, by mobile phone threatened to kill Mr Watson and others by stabbing them. You said to Mr Watson by mobile phone "I've stabbed someone before and I've been to gaol for it and I'm not afraid to do it again" (statement of Zoe Kiely, D115). You had a large knife in your possession (statement of Benjamin Reynolds, D124; see also statements of Shannon Watson, D51 and of Alanah Filewood, D73). You then went inside your unit and commenced to make Molotov firebombs to throw into Mr Watson's unit. By this time, it was early on Saturday 19 April. A number of persons in the threatened group, including the deceased, decided to walk around to your unit to confront you. Four of them attended in your driveway. The deceased approached your front door and challenged you to fight him. The others remained in the driveway. The deceased moved away a little, you emerged with a large knife and, in the driveway some five metres from your front door, you stabbed the deceased once in the chest. The autopsy revealed he had been stabbed through the left lung and the heart with at least severe force. He died shortly afterwards.

6 There is some difference in the committal evidence (which was by way of hand-up brief) as to whether the deceased hit you with a stick before you stabbed him. The preponderance of evidence is that he did not and had no stick. Even if he did, you suffered no injury and the fatal stabbing was wholly unjustified.

7 You were arrested shortly afterwards and at the Ballarat Police Station in interview stated that you had had a large amount to drink and were acting in self-defence. You were charged with murder (Record of Interview, Ballarat, 19 April 2008, Q.632, D336) but at committal in Ballarat on 25 November 2008 you pleaded guilty to manslaughter. The doctrinal basis of the charge of manslaughter is unlawful and dangerous act. You have been prepared to plead guilty to that charge from the earliest opportunity.

8 Although you were at your own premises at the time of the stabbing and persons had come to there - a matter normally of substantial significance - that matter is counterbalanced significantly by the facts that you had just threatened by mobile phone to stab persons, the deceased and the others did not enter your premises, and you were, at the time, preparing Molotov firebombs for aggressive purposes.

9 A matter of high significance is that, amongst your numerous prior convictions at the age of 20, is a conviction in the Magistrates' Court at Ballarat on 18 January 2008, but three months earlier than this offence, of causing serious injury recklessly by the use of a knife, for which offence you were fined the modest amount of $500. That was for stabbing a person in the back outside a hotel on 10 August 2007, albeit with minimal premeditation. Further, on 28 August 2006 you were convicted of recklessly causing serious injury when you stabbed a person in the right hand during an argument inside your premises on 25 May 2006. The force used by you on that occasion was so severe that the knife remained embedded in the victim's hand until removed in hospital. Six months earlier, on 19 November 2005, you wielded a knife at a person, were disarmed, and then you stabbed the victim in the arm with a carving fork (conviction on 2 June 2006 of causing injury recklessly). You were well familiar with the use of knives.

10 You were born in April 1987 and at the date of the offence were 11 days short of turning 21. You have 46 prior convictions imposed on seven separate occasions, from 25 August 2000 to 18 January 2008. Six were for driving and related offences. Five were for dishonesty. Sixteen were for street and police offences, including threatening to assault police in the execution of duty. Fourteen findings of guilt or convictions were for actual violence, including unlawful assault (25 August 2000), unlawful assault (4 November 2002), causing injury recklessly, unlawful assault, and four counts of assaulting police in the execution of duty (all on 2 June 2006), unlawful assault, two counts of assaulting police in the execution of duty, causing serious injury recklessly, and causing injury intentionally (all on 28 August 2006), and the offence of causing serious injury recklessly (18 January 2008) which I have already referred to. All the convictions were sustained in the Ballarat Magistrates' Court. You have had the benefit of a bond to be of good behaviour (25 August 2000), probation (4 November 2002), probation (14 July 2003), community based order with community work (19 April 2005 which you breached twice leading to one month's detention in a youth training centre), three months' detention in a youth training centre (2 June 2006), twelve months' detention in a youth training centre (28 August 2006), and the fine for causing serious injury recklessly (18 January 2008) which I have referred to. The Courts, rightly for a youthful offender, initially treated you with mercy and therapy. In your case, to no avail. You have two serious prior convictions for knife stabbing, one but three months before this offence. You had come before the Courts twice for knife stabbing and had learnt nothing.

11 I have carefully considered the material that has been filed on your behalf. The report of Mr B.J. Healey, psychologist, of 13 February 2009 comprehends your personal history in detail and I note its penultimate paragraph that you are disturbed and anxious; the report of Dr L.A. Walton, psychiatrist, of 21 May 2009 reveals that you suffer no mental illness and that there are no psychiatric factors in your case applicable to sentencing. You are of average intelligence. I have had regard to the statement of your mother, Exhibit 2, and without here stating the personal matters set out in it, I have had close regard to it, and also of your sister Tamara. I have also been assisted by the statement of your uncle, Mr Barry Keirl, Exhibit 4. The statements of your loyal family reveal your most difficult childhood and upbringing and a history of abuse you suffered. I take those matters centrally into account in sentence. I also take into account your responsible application in custody awaiting sentence including successfully completing appropriate courses including problem solving and anger management and undertaking trade skills including welding.

12 As I have said, the committal proceeding was by way of hand-up brief. You pleaded guilty to this offence at the earliest opportunity (Ballarat Magistrates' Court, 25 October 2008) and again before me. By reason of your plea of guilty, I state pursuant to s 6AAA(2) Sentencing Act 1991 that I have reduced the sentence to be imposed (both head and non-parole term) by the period of three years on account of your plea of guilty. You now have some remorse for the offence. You have suffered in custody from the suicide of your father and have been treated with the major tranquiliser, Seroquel. You have had a longstanding addiction to alcohol, and had been heavily consuming alcohol on the day of this offence. Many of your prior convictions also were alcohol-related.

13 Your counsel, Mr Danos, in a most comprehensive plea on your behalf, put everything that could be put in your favour, including your youth, your blighted upbringing, your alcohol addiction, your plea of guilty and your remorse.

14 The deceased was 20 years of age at the time of his death. As I have said, his death was wholly unjustified. I have read, more than once, the victim impact statements of his loving family, filed in the Court. They are most moving and impressive documents. The deceased was the youngest of three children. He had an older brother and sister. He completed Year 12 at Sebastopol College and was studying accounting at Ballarat University. He had the aim of working productively in accounting. The statements of Mrs Maree Young, the mother of the deceased, Mr Michael Davies, brother and Ms Leanne Davies, sister of the deceased, and of Mr Alan Edwards, stepfather of the deceased, document the devastating effect upon them of the death of the deceased. I also have regard to the statement of Ms Michelle Marturano, stepsister of the deceased. I have received all those statements as exhibits and have them retained on the Court file. I have central regard for those statements.

15 Mr Gill, I take into account particularly your youth and your plea of guilty, as well as all the other matters your counsel has urged upon me. Your state of intoxication on the night does not avail you: you were well able to function and were in the process of making another weapon. Of the principles of sentencing, rehabilitation, especially with youthful offenders, always is of significance. However, you have numerous prior convictions, including two serious convictions for knife stabbing, and you took the life of a young person without justification and contrary to law. A substantial term of imprisonment is necessary to be imposed upon you. Both general deterrence - the deterrence of others from using knives - and specific deterrence - the deterrence of you from using knives - have especial relevance in this case. Whilst making due allowance for your maturation during custody and for the beneficent and important function of parole, in view of your history of violence and lack of learning from Court dispositions I shall direct a period of eligibility for parole which is of utility but is not excessive.

16 I have signed the submitted Orders for forensic sample and for disposal. You have served 486 days in pre-sentence detention on account of this offence and pursuant to s 18(4) Sentencing Act 1991 I declare the period of 486 days as already served under the sentence I impose and I so certify.

17 Mr Gill, for the manslaughter of Brenton Davies I sentence you to ten years' imprisonment. I direct that you serve a period of eight years' imprisonment before you are eligible for parole.