DPP v Gillin [2018] VSC 102

3 In 2014, the two of you and another youth pleaded guilty to an armed robbery committed at a pharmacy in Kangaroo Flat; you and Hayden were sentenced to youth detention. Hayden blamed you for implicating him in the armed robbery, and animosity developed as a result. Thereafter, you exchanged abuse and insults whenever you saw each other; on occasions, there were physical fights between you.

4 In late February and early March 2016, the two of you exchanged numerous abusive and mutually threatening messages via Facebook.

5 In March 2016, somebody broke into your place at night time and trashed it. With some justification, you blamed Hayden for being involved in the "run through".

6 By June 2016, you had started a relationship with a girl called Tahlia. You had previously been in a relationship with an older woman called Michelle Russell, who was the mother of one of your friends; but you and Ms Russell had separated at the start of 2016. Then, in the week before the offence, Ms Russell was placed in temporary crisis accommodation at a motel in Bendigo. You met up with Ms Russell on 6 September, and stayed with her until the night of the offence.

7 You and Ms Russell woke up late on the morning of Saturday, 10 September 2016. Over the course of the day, you took some prescription medication (Buprenorphine, which is used to treat heroin and methadone dependence), smoked cannabis, and drank about 7 or 8 cans of pre-mixed bourbon. Ms Russell took a mixture of Xanax, Valium and her prescribed methadone, and also smoked some cannabis.

8 That afternoon, you spoke to a friend, Jack, about exchanging drugs. Just before 7.00 pm, Ms Russell drove you in her car to Jack's place in the Bendigo suburb of Long Gully. Ms Russell waited in the car, which was parked outside the house, while you went in to see Jack. You were unaware that Hayden and some of his friends were inside Jack's house at the time; they had been sitting around smoking cannabis.

9 When you knocked on the front door and called out in jest, Hayden approached the door and asked what you were doing there. He called you a "rat" and told you to "piss off" or "fuck off". The two of you began to exchange insults. Hayden opened the front door and came outside. There was a short scuffle, in which the two of you exchanged blows, for no more than a minute or two. Hayden was pushing you towards the front gate, and you both gradually moved from the front yard and out onto the footpath.

10 Most witnesses said that only you and Hayden were involved in this stage of the fight. There seems to be no support for Ms Russell's claim that you were crouching down, with two or three people hitting you and punching you in the face. At some stage, Ms Russell retrieved a small hammer from her car and ran to the front yard, threatening people with it and behaving erratically.

11 Several neighbours came out to see what was going on, and a couple of them tried to break up the fight.

12 After you and Hayden had been separated, Hayden moved back towards the front gate. You went to Ms Russell's car, and stood inside the open front passenger doorway. She was seated in the driver's seat by this time. Hayden continued to verbally abuse you, calling you a "snitch", a "rat" and a "dog", and saying he had "done time" because of you. You responded that you had done "more time", and the two of you exchanged further insults and threats.

13 Hayden then walked from the front gate, out onto the road, and stood in front of the car. He put his hands up, outstretched at shoulder height, and said words to the effect of "one on one, come out on the road." He was alone and unarmed at the time.

14 As Hayden moved towards you, you reached down into the car, looking like you were going to get in. You then stood up suddenly, reached over the top of the car door, and appeared to punch Hayden. Although none of the eye witnesses seem to have noticed a knife, that was clearly the point at which you stabbed Hayden once to the upper left side of the chest. He staggered backwards, bleeding heavily, yelling out that you had stabbed him.

15 It is not disputed that you are left-handed, although to what extent you also regularly use your right hand is not known. Even if you stabbed Hayden with your right hand, as you told police, not a great deal turns on that. You were facing him directly when you stabbed him. You stabbed him to the upper left side of his chest, with sufficient force to cause a wound track which was about 13 cm long. The knife entered the chest cavity through muscle, cut across the axillary artery, and perforated the upper lobe of the left lung.

16 You immediately sat down in Ms Russell's car, locked the central locking system and told her to drive. Upon realising that Hayden had been stabbed, some of his friends began punching and kicking Ms Russell's car, smashing some of the windows in the process. Ms Russell drove quickly away from the scene.

17 People at the scene called 000, and administered first aid to Hayden. Police and paramedics attended around 7:30 pm, but resuscitation attempts were unsuccessful.

18 Ms Russell drove you back to the motel; you were both in a frantic state. You said "I hope I haven't hurt him. I hope he is alright. This wasn't meant to happen." Ms Russell noted you had a cut to your jaw line and blood on your shin and knee, but no other injuries. She asked you what had happened, and you showed her an apparently bloodstained knife. She recognised it as the knife that she had seen in your possession over the previous four days. You asked her to pray with you, saying you didn't mean it and you hoped Hayden didn't die.

19 Ms Russell started receiving phone calls from family and friends, who had heard that the police were looking for the two of you. She arranged for one of her friends, Maxine, to come and pick you both up from the motel. The three of you drove around for several hours, avoiding the main areas of Bendigo. At some stage that night, you disposed of the knife.

20 After arguing at Maxine's flat, you parted from Ms Russell and went back to Tahlia's house. The next morning, you went and bought some cannabis. You were arrested at Tahlia's house on the evening of 11 September.

21 The following day, you participated in a recorded interview and police re-enactment. On both occasions, you lied extensively to the police, asserting that you felt you had been acting in self-defence. You exaggerated the number of people who had been involved in the fight, and the threat you had faced. You asserted that Hayden had produced the knife, and you had managed to grab or wrestle it from him. You asserted that you had only "poked" Hayden with the knife. You said you had left the knife at the crime scene.

22 The cause of Hayden's death was significant internal blood loss and a collapsed lung. During the post-mortem examination, numerous illegal and prescription substances were detected in Hayden's body, including ice and amphetamine.

23 As far as the seriousness of the offending is concerned, you and Hayden both came upon each other unexpectedly at Jack's house. The confrontation was totally unplanned. Although Hayden was the initial aggressor - both verbally and physically - that day, you readily joined in the fight, which was a continuation of the longstanding animosity between you two. When Hayden approached you again late in the fight, challenging you to keep fighting him, you were next to the open car door; you could easily have just got in the car and asked Ms Russell to drive away. Instead, you grabbed the dangerous weapon, which you had been carrying around for some days prior to this incident, and reached over the door to stab Hayden to a very vulnerable part of his body. Your overreaction to the situation may be explained, at least in part, by a state of heightened arousal or misperception as a result of past experiences that I will discuss later, and/or by your state of intoxication.

24 Unfortunately, this is not the first time you have stabbed someone in a fight. In the early hours one morning in March 2015, you were walking along a Bendigo street. You were drunk and yelled abuse towards a car that drove past. Passengers in the car yelled something back. The car stopped and a male passenger got out. You walked up him and asked "do you want to get stabbed tonight?" You held a Stanley knife to his neck, causing a small puncture wound. As the victim turned to leave, you used the knife to slice his back, causing a 25cm long incision, which required multiple stitches and butterfly clips. On 12 October 2015, you were sentenced to 60 days' youth detention, and placed on a 12 month community correction order, in relation to that conduct and some theft and other charges.

25 It is an aggravating feature of this offence that you were still on that CCO when you stabbed Hayden.

26 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

27 Victim impact statements were provided by Hayden's parents, four siblings, and other family and friends. Hayden is greatly missed by all of them. They are suffering in different ways, from a mixture of shock, grief, anger, depression and disbelief.

28 They speak of his cheeky grin, his sparkling blue eyes, and the way he used to make them all laugh. His loved ones believe he was beginning to turn his life around, after his rather troubled youth, and are mourning both the loss of his future and their shared future with him.

29 After hearing what had happened, some of Hayden's family went to the scene of the incident, to see if they could help or comfort him. Because the area had been declared a crime scene, to enable the police to gather evidence, they were not allowed to enter it. Many of them are still haunted by the image of Hayden's body, lying on the cold concrete in a pool of blood, covered by a sheet; they felt frustrated at being unable to go and see or touch him then. The intrusiveness of the media and other strangers at the scene, and since, has only added to their pain.

30 There is nothing this court can say or do that will bring back Hayden, or heal his family's grief and pain. The sentence I am going to impose is not a reflection of the worth or value of Hayden's life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.

32 You were born in October 1996. You have happy memories of growing up with your two sisters in a loving and supportive family environment. Your parents and siblings are all hardworking and law-abiding.

33 Your primary schooling was without incident, and you performed well academically, socially and at sport. However, by your early teens, your parents and teachers had become concerned by your behaviour. You were often in trouble at school, you gravitated towards peers who were a bad influence, and started abusing various substances. Your parents made many different attempts to help you. You were first expelled in year 8. Subsequent enrolments at other schools were also unsuccessful.

34 You started stealing and getting in trouble with the police. You began to run away from home. Your parents continued to try to assist you, but there were frequent incidents of violence and property damage at home, particularly when you were substance affected. The police were called on many occasions, and DHHS Child Protection became involved. Your subsequent placements in residential care were unsuccessful, due to your unacceptable behaviour there.

35 In December 2011, you were assessed by a psychologist, Dr Ben Jones, at the request of DHHS. He noted your problems as including substance abuse, interpersonal aggression and violent outbursts, threats of self-harm, absconding and emerging criminal behaviour. He also noted that there was no underlying mental illness that would account for your behaviour. He recommended you participate in intensive psychological treatment.

36 You were 13 or 14 when you first tried cannabis. By around the age of 15, your drug use had escalated from cannabis to stimulants, hallucinogenics and opiates. Various attempts at rehabilitation and detoxification in your teenage years were unsuccessful.

37 Your first appearance at the Children's Court was in March 2012, when you were 15. Among the more than 20 charges dealt with on that occasion were charges for drug possession, theft, contravening a family violence order (in relation to your father), threatening to inflict serious injury (to one of the residential care workers), intentionally damaging property (at the residential unit), and assaulting police. You were released without conviction on a six month Youth Supervision Order.

38 During the period of that first YSO, you were dealt with for further theft and drug possession charges.

39 By September 2012, you faced a further 14 charges, including making threats to kill or inflict serious injury on one of the workers at your residential unit. You were convicted and placed on a further six month YSO.

40 After leaving residential care, you lived for short periods with family members or in caravans on your own.

41 In June 2013, you were convicted of further theft and property damage charges, as well as contravening the family violence order (in relation to your father). You were placed on a six month Youth Attendance Order.

42 Around the age of 17, you were held hostage and stabbed with syringes. The circumstances in which that occurred are not clear. You were apparently diagnosed with PTSD as a result of that incident, while in a Youth Justice Centre.

43 In January 2014, you were convicted of further offences, including assault in company. On that occasion, you and a friend were travelling on a bus. When a fight broke out between your friend and a man on the bus, you joined in and wrestled and punched the man. A further YSO was imposed.

44 Your first sentence of detention was in February 2014, when you were sentenced to 7 months' youth detention in respect of the armed robbery committed by you, Hayden and the other youth. A Youth Justice report had recommended that a custodial sentence was appropriate, because you had breached all previous non-custodial orders, and had only engaged sporadically in programs designed to assist you.

45 Then, in October 2015, you were convicted of various charges, including the knife attack on the stranger in the street, which I mentioned a short time ago.

46 The property and drug possession convictions are not unusual for somebody using illegal drugs. The convictions for violent offences are more troubling. It is also concerning that you breached every supervisory order that was imposed on you, by committing further offences.

47 There have been times when you have worked since leaving school, including on building and decorating jobs. Unfortunately, your continued drug usage seems to have prevented you from holding down jobs.

48 You are very fortunate that your family have stood by you, and are still supportive of you. I have no doubt that your behaviour has caused them much anguish over the years.

49 A report was prepared by Pamela Matthews, forensic psychologist, for the purposes of sentencing you. She reports that you are still suffering from some symptoms of PTSD, including intrusive memories, nightmares and flashbacks related (amongst other things) to the hostage/syringe incident when you were 17. She expressed the opinion that your PTSD symptoms and substance abuse disorders "have contributed to the current offending"; however, and most unhelpfully, she did not really explain in what way they may have done so. Unfortunately, the account of the current offending recorded by Ms Matthews differs in some important respects from the evidence before the court, in that she seems to have believed you were under attack from a number of people, and were tussling with Hayden over the car door just before you stabbed him.

50 It is not necessary to consider Ms Matthews' report in more detail, as your counsel does not rely on it in support of an argument that any of the Verdins principles are engaged here. However, I accept that your PTSD symptomology (arising from past traumatic events) may have made you more vigilant, and have affected your perception of the threat you believed you faced, at the time you stabbed Hayden.

51 You are also taking medication to deal with symptoms of depression and anxiety, both of which are being adequately managed in custody.

52 On 7 September 2017, you were committed to stand trial on a charge of murder. In January 2018, almost two months before your trial was due to begin, you first offered to plead guilty to manslaughter.

53 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Hayden's family and friends have been spared what would have been a very traumatic trial for them.

54 Although you initially lied to the police about what had happened, that is likely to have been from immaturity and a sense of panic. I accept that you are genuinely remorseful for what you have done.

55 I also accept that being placed in adult custody for the first time at the age of 19 has been a frightening, and somewhat sobering, experience for you. Whilst in custody, you have tried to keep yourself busy, particularly with reading and physical training. You have undertaken a number of courses, of both vocational and psycho-educational varieties. You are talking of completing your education whilst in custody, and perhaps learning a skill which will enable you to obtain employment when you are released.

56 In December 2016, you were transferred to the St John's Unit under observation, because you had self-harmed after being stood over by other prisoners. You were then placed in protection at your own request. More than one quarter of all prisoners in Victoria are held in protection at any time, and the conditions of protection can vary significantly. You are permitted 11.5 hours out of cell each day, the same amount as you were in mainstream. While your protection status may have resulted in some reduction in access to facilities or programs, I am not persuaded that it has been unusually harsh or onerous to date. Perhaps more importantly, there is no evidence as to the likelihood that you will want, or need, to remain in protection after you have been sentenced.

57 You were 19 at the time of the offending; you are now 21. The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. However, those principles are not immutable; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending.

58 In sentencing you, I am mindful of the fact that manslaughter is a serious offence, involving the unintentional taking of another person's life. I also take into account that this was not an unexpected or isolated act of violence on your part, and you have a considerable history of offending.

59 You do have prospects of rehabilitation. You are of above average intelligence. The support of your family will continue to be important to you in the coming years. There is evidence that you are finally starting to grow up, and make smarter choices for yourself. Your prospects of rehabilitation are inextricably linked with your addressing your substance abuse issues and PTSD symptoms. It is in the community's interests, as well as your interests, that you be supported with appropriate education, programs and supervision, both in custody and on parole, to enable you to continue on the path of rehabilitation.

60 Given your youth, and the fact that you have not yet developed adequate skills for living as a responsible member of the community, I have set a non-parole period which allows for the possibility of your undertaking supervised rehabilitation in the community, over a longer period than might otherwise be thought justified. Whether or not you will be granted parole will no doubt depend on your behaviour in custody.

61 General deterrence has an important role to play in a case such as this. Although the stabbing occurred spontaneously, there is a clear need to deter others from carrying dangerous weapons, and resorting to using them when conflict arises. This type of conduct also needs to be denounced and justly punished.

62 For the manslaughter of Hayden Coleman, I sentence you to 9 years' imprisonment.

63 I fix a period of 5 years before you become eligible for parole.

64 I declare that, but for your plea of guilty, I would have sentenced you to a total of 11 years' imprisonment, with a minimum non-parole period of 7 years and 6 months.

65 Further, I declare that the period to be reckoned as already served under this sentence is 549 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.