DPP v Lovett [2008] VSCA 262

Court of Appeal (Vic)|2008-12-11|Before: MAXWELL P, NETTLE and REDLICH JJA

CRIMINAL LAW - Sentencing - Manslaughter by unpremeditated stabbing - Whether head sentence of 6 years' with non-parole period of 3 years' imprisonment manifestly inadequate - Youthful offender - Intellectual impairment - R v AB (No 2) [2008] VSCA 39, R v Winter [2006] VSCA 144 considered - R v Yaldiz [1998] 2 VR 376, Champion (1992) 64 A Crim R 244 applied - Appeal dismissed.

1 The respondent ('Lovett') pleaded guilty in the Supreme Court to one count of manslaughter by unlawful and dangerous act. He was sentenced to six years' imprisonment, and a non-parole period of three years was fixed. The Director of Public Prosecutions now appeals against the sentence on the ground that the sentence was manifestly inadequate. For reasons which follow, I would dismiss the appeal.

The circumstances of the death****[1]

2 The victim, Dwayne Sherri, was 27 when he died. Lovett was then 26. They had met through a mutual friend, with whom Lovett shared a house. Lovett and Sherri did not get along. According to the Crown summary, they were 'different personalities and didn't care for each other'.

3 On Wednesday, 23 May 2007, Sherri was at Lovett's house for a social visit. Also present were Lovett, the mutual friend (Williams) and the third resident of the house (Winzer). During the day Lovett was 'shouting' alcoholic drinks for the group. Some time later, as Sherri was leaving the house, he told Lovett that he would return another day and 'shout' him a drink. In fact Sherri did not attend at the house the following day, and this annoyed Lovett. Sherri did not come to the house again until the following Friday.

4 On Friday, 25 May, two friends of Sherri's came to his flat. Sherri had agreed to purchase cannabis for them, at their request. Some time after 8:00 pm, they travelled to Lovett's house. Sherri intended to purchase cannabis from Lovett. On arrival, Sherri went to the house and Lovett answered the door. Lovett was not receptive to Sherri's visit and they argued. At one stage Lovett was heard to say to Sherri, 'What the fuck are you doing here? You were supposed to come around and shout me a drink and you never did. Get the fuck off my property before I slit your throat.' After this argument, Sherri left with his two friends. Sherri and Lovett did not meet again until the following Monday, the day of the fatal stabbing.

5 On the morning of Monday, 28 May 2007, Williams went to Sherri's flat to visit, arriving about 11:00 am. They walked to a local shop and purchased a cask of white wine. They returned to Sherri's flat and commenced drinking, watching DVDs and listening to music. There was a lot of discussion about Lovett and about Sherri's dispute with him. By about 5:30 pm, they had just about finished the cask of wine. They left Sherri's flat and walked towards the East Geelong Railway Station. Williams had planned to baby-sit his sister's child the following day. He and Sherri were going to travel by train to her house and stay overnight.

6 On the way to the station, Williams and Sherri came to a public telephone box. Sherri decided to ring his mother. He had no money, however, so he called his mother's number using the public phone. When the phone answered it cut out. His mother knew that this was a signal from her son for her to call him on his mobile. She called his mobile number several times but he had left his mobile phone at his flat.

7 Meanwhile, at about 5:00 pm the same day, Lovett went to a supermarket in East Geelong. While in the store he had a chance confrontation with one Craig Blatchford, who was then in a relationship with Lovett's former girlfriend. Blatchford threatened Lovett in the supermarket and then ran from the store. Lovett then purchased a can of soft drink, a pair of nail clippers and a paring knife. This knife had a nine centimetre blade and was in a hard plastic packet. Lovett left the supermarket about 5:15 pm carrying these items in a white plastic bag. After leaving the store, he removed the knife from its packaging.

8 Lovett walked back towards his house. Unfortunately, his route took him past the public phone box where Sherri and Williams were. At about 5:35 pm, Williams saw Lovett approaching from the direction of a milk bar. Lovett approached Williams and said to him, 'I almost got stabbed about 10 minutes ago'. He went on to tell Williams about the encounter with Blatchford at the supermarket.

9 At this point Sherri put down the phone in the phone box, turned and said 'Ahhh', pointing at Lovett. Lovett ignored him and continued talking to Williams. Sherri then said, 'So you're going to slit my throat, are ya?' At this point he was about a metre away from Williams and Lovett.

10 Lovett replied to Sherri by saying 'Nah, you're all right mate. I just don't want to know ya'. Sherri then moved forward and pushed Lovett with two hands. Sherri tried to follow through with a punch aimed at Lovett but it did not connect. Lovett then stabbed Sherri once in the neck with the knife. Sherri stumbled backwards while Lovett walked off quickly towards his house. Williams followed him, apologising for Sherri's actions, being unaware that Sherri had been stabbed.

11 Sherri made his way to the milk bar but then collapsed. An ambulance was called but he died soon after. Blood tests subsequently showed that Sherri had a blood alcohol concentration of 0.16%.

12 After leaving the scene, Lovett went home where he removed the windcheater he had been wearing and put it in the washing machine. He set the machine to wash, and left again. Between 9:30 and 10:00 pm he rang Winzer and told him that he had stabbed Sherri. He arranged to meet Winzer at a friend's house.

13 At about 2 o'clock in the morning, Lovett attended at the friend's house and told her mother that he had stabbed Sherri. He went on to tell her about having been threatened in the supermarket by Blatchford. He told the friend's mother how he had stabbed Sherri and that he thought he had only punched him but then saw blood. At some stage Winzer attended at the friend's house. Lovett again told Winzer that he had stabbed Sherri, that Sherri had died and that he (Lovett) had to hide. Lovett and Winzer then slept at the friend's house, waking at about 2:00 pm in the afternoon.

14 At about 4:00 pm the following day (Wednesday 30 May 2007), Lovett attended at the house of Alfred Howell. He asked Howell if he had read the articles in the paper about the stabbing and murder. Howell said that he had. Lovett told Howell that he had stabbed Sherri. He went on to detail the incident in the supermarket with Blatchford. Lovett said he had purchased the knife because of the threats made by Blatchford. Howell's partner washed Lovett's clothes and Lovett slept there for the night. Lovett stayed there the following day playing video games with Howell.

15 On the evening of Thursday 31 May, homicide squad detectives attended at Howell's house. They located Lovett on a couch hiding under a blanket. He was arrested, interviewed and charged.

16 The submission for the Director concentrated on what was said to be the manifest inadequacy of the head sentence. Senior counsel who appeared for the Director argued that, as an instance of unlawful and dangerous act manslaughter, this case fell within the middle of the range of seriousness. But, if the relevant category were confined to manslaughter where the unlawful (and dangerous) act was assault, he submitted, the case should be seen as being at the upper end of the range of seriousness for that category.

17 Factors relevant to the gravity of the offence, according to the submission, were as follows:

there is great danger always associated with the use of a knife as a weapon;
although Sherri had been verbally and physically aggressive, he was not using a weapon and there was nothing in Sherri's behaviour which warranted Lovett using a weapon to respond;
Lovett could have walked away after he was pushed by Sherri, rather than responding; and
it was an aggravating factor that Lovett was carrying the knife 'at the ready' in a public place.

According to the written submission, the need for general deterrence in circumstances such as these is very high. 'The carriage and use of weapons (in particular, knives) in public places is a matter of high public concern.' Insufficient weight was said to have been given to this consideration.

18 No submission was made by the prosecutor on the plea, or by senior counsel for the Crown on the appeal, about the sentencing range which was properly open to the judge in this case.[2] Manslaughter is an offence which, by its nature, makes submissions on sentencing range particularly important. As has often been stated, it is an offence which covers an enormous variety of circumstances, of varying degrees of seriousness, and the sentencing court will usually be assisted by a Crown submission as to the sentencing range applicable to the particular circumstances of the case at hand.[3]

19 The written submission for the Crown noted that the maximum penalty for manslaughter was 20 years, before stating:

Current sentencing practice would indicate that sentences for manslaughter are on the increase.

This submission was supported by reference to R v AB (No 2),[4] where this Court held that sentencing practices for manslaughter had not taken account of the increase in the maximum penalty from 15 to 20 years. In argument, however, senior counsel for the Crown said he was not contending that the sentencing practices here relevant were inappropriately lenient. R v AB (No 2) was, of course, a very different case from the present. The head sentence of 15 years upheld on appeal, was imposed for a killing which the sentencing judge said - and this Court agreed - fell into 'the category of the gravest of homicides short of murder.'[5]

20 The Director's Notice of Appeal contended that the sentencing judge had erred in finding that Lovett was a youthful offender. The judge concluded that Lovett's youth should have 'a moderating effect' on the sentence to be imposed. At the hearing of the appeal, however, the Director's contention in this regard was but lightly pressed. As his counsel acknowledged, the judge made clear that the principles applicable to youthful offenders, favouring rehabilitation over general deterrence, were:

only general propositions, and ... each case depends upon its own circumstances, including the circumstances of the offence and those of the offender. Other sentencing considerations may outweigh the rehabilitation of a youthful offender. Furthermore, as the age of the offender in question increases, the force of the propositions diminishes.[6]

21 The Director's Notice also contended that the judge was in error in concluding that Lovett had entered a plea of guilty at the first available opportunity. This contention was not pressed on the hearing of the appeal.

22 Senior counsel for the Crown acknowledged - quite properly, in my view - that there were significant mitigating factors on which Lovett could rely: his relative youth; the fact that he had not been jailed previously; his very low IQ; and his early plea of guilty. Counsel accepted that, taking these matters into account, it would be difficult to sustain an argument that the non-parole period was manifestly inadequate.

23 On the plea before the judge, counsel for Lovett identified ten matters which were said to go in mitigation of penalty, as follows:

plea of guilty at the earliest opportunity;
no prior convictions for violence;
with an IQ of 74, Lovett was severely intellectually disadvantaged;[7]
the killing was not premeditated;
Lovett did not set out with the intent to injure anyone, let alone cause anyone's death;
the altercation which resulted in Sherri's death was initiated by him, not by Lovett;
Lovett had sought to avoid conflict;
since learning of the death, Lovett had been deeply distressed about it and was showing symptoms of depression; and
Lovett had real prospects of rehabilitation and there was no indication he was likely to offend again in the future.

24 On the appeal, senior counsel for Lovett argued that, in the circumstances, Lovett had needed to protect himself. Following the altercation with Blatchford, he was in a state of 'heightened anxiety and fear'. Counsel conceded, nevertheless, that this emotional state did not justify Lovett having had a knife 'at the ready'.

25 Counsel contended that, as a matter of the gravity of the killing, this was 'mid-range' for manslaughter. As on the plea, reliance was placed on the absence of premeditation, and on the fact that Lovett had done nothing to initiate the violence but had behaved reactively and defensively. Of the other mitigating factors, counsel placed particular emphasis on Lovett's intellectual disadvantage, which was said to moderate considerations of general deterrence; his remorse; and the fact that he was likely to experience hardship in an adult jail, given his intellectual deficits and withdrawn personality.

26 Senior counsel for the Crown accepted that Lovett might well find time in jail more difficult than someone of normal intellectual capacity, but argued that his low IQ did not mitigate the seriousness of the offence nor affect the significance of general deterrence.

27 The sentencing judge said he had no doubt 'of the fundamental and traumatic effect' of the death on Sherri's family.

The position of members of the family ... is, I realise, extremely difficult and traumatic. For them, whatever occurs in this court will in no way make up for the loss of Mr Sherri, who was obviously a very dearly loved member of the family.[8]

28 In relation to the offence itself, his Honour accepted that there was no premeditation or planning and that Lovett was:

[N]ot intending to inflict really serious injury or to kill the deceased. There was no sustained attack by you on the deceased but rather only one blow made with the hand in which you were carrying the paring knife. Neither the verbal exchange between you nor the physical altercation was initiated by you. Rather, the deceased appears to have initiated the incident whilst intoxicated. He failed in his attempt to strike you and had you not retaliated, this disaster would, in all likelihood, have been avoided.[9]

29 His Honour concluded that Lovett's youth, combined with 'a significant level of intellectual disadvantage', should have a moderating effect on the sentence. He went on:

That also supports the submission made on your behalf that a longer than usual period of parole will assist to capitalise on the rehabilitation to that point and assist you to embark on a productive and law abiding life.

His Honour had heard evidence from Phillip Krakouer, the Aboriginal Well-being Officer at the Metropolitan Remand Centre. Mr Krakouer had seen Lovett two or three times per week in the period June 2007 to February 2008. He described Lovett as 'quiet, shy, and quite frightened'. He said that Lovett showed a great deal of remorse. His inability to read, and his low IQ, means that he 'doesn't understand a lot of the stuff' and, as a result, stayed in the background at the remand centre.

30 His Honour referred to other character evidence and said:

Overall, the evidence called on your behalf persuades me on the balance of probabilities that you are not a person of violent disposition and your conduct on this occasion was explicable initially by your fear of attack from Mr Blatchford. However it must be demonstrated to you and others that arming with weapons such as knives is not and never will be acceptable.[10]

My impression from the evidentiary material is that this case is, for you, a turning point. However, this offence involved the fatal use of a knife on a public street. The sentence I impose on you needs to be one which deters both you and others from taking possession of dangerous weapons with a view to using them as required in the event that a threatening situation occurs. This is a very serious offence.[11]

31 In order for the Director to establish that the sentence was manifestly inadequate, he would need to show that the sentence was so lenient that no reasonable judge could have imposed it in the circumstances of this case. That is, it was outside the range reasonably open in the sound exercise of the sentencing discretion. In my opinion, the Director has not made good that submission. It may be accepted that the sentence was lenient. Another judge might well have imposed a longer period of imprisonment. But I am far from persuaded that the decision which the sentencing judge made was outside the scope of the proper exercise of the discretion.

32 This was a tragic conjunction of events. Lovett had armed himself not in order to do violence but to protect himself against what he assumed to be a real risk of attack by Blatchford. He did not 'pick a fight' with Sherri - quite the opposite. He tried to ignore Sherri's initial taunt. It was only when attacked that he reacted. That was, of course, the moment when having a knife in his hand had - as it so often does - unintended consequences of the most terrible kind.

33 It must be emphasised, as it was by his counsel on the appeal, that the Crown's decision to drop the murder charge originally laid reflected an acceptance that Lovett did not intend to cause death or really serious injury. This must mean, in my view, that Lovett is not to be taken to have intended to stab Sherri in the throat. Had that been his intention, it is difficult to see how it could have been characterised otherwise than as an intention to kill or cause really serious injury.

34 The facts of this case bear a tragic similarity to those in R v Winter.[12] There a driver had a knife on the seat beside him in the car when a passenger from another car approached the driver's open window in a belligerent manner, to protest about a driving incident. Instead of winding up the window, the driver reached for the knife and stabbed the victim once in the chest, fatally wounding him. He was acquitted of murder but convicted of manslaughter, and sentenced to seven years' imprisonment with a non-parole period of four years. This Court rejected his contention that the sentence was manifestly excessive. (There was no cross-appeal from the Crown contending that the sentence was inadequate).

35 That single example is sufficient to show why the head sentence of six years in the present case could not be said to be 'outside the range'. The point is reinforced by the fact that in R v Winter, unlike the present case, the offender took the deliberate step of picking up the knife before he struck out. As it was in R v Winter,[13] so too here it is relevant to consider current sentencing practices. (As noted earlier, the Director eschewed any submission that sentencing practices for manslaughter of this type were inappropriate.) The most recent Sentencing Snapshot published by the Sentencing Advisory Council shows that in the period 2001-02 to 2005-06 -

imprisonment terms for manslaughter ranged from three years to 15 years;
the medium length of imprisonment was six years;
the most common length of imprisonment imposed with five years.[14]

These are, of course, very generalised statistics, but they do not suggest that the sentence of six years in this case was anomalous or aberrant. Quite the contrary.

36 In my view this was a case where the judge was entitled to treat rehabilitation as a matter of real importance. As has often been stated, there is very considerable community benefit in the rehabilitation of offenders. In the face of strident calls for more punitive and retributive sentencing, this is a matter which needs to be continually emphasised by sentencing courts.

37 Although Lovett was 25, his intellectual capability was that of a much younger person. Intellectual impairment has long been recognised as having a moderating effect on general deterrence.[15] In R v Yaldiz, Batt JA discussed the effect on general deterrence of mental impairment and intellectual disability in these terms:

... [G]eneral deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.[16]

It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, [retains] the intellectual capacities of a child. Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates ... It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given.[18]

38 His Honour was acting in accordance with principle in moderating general deterrence in fixing the sentence in this case.

39 I have had the advantage of reading in draft the reasons for judgment of the President and I agree with his Honour that the appeal should be dismissed.

40 I add, however, that it is only because of the very significant intellectual impairment of the respondent that I have come to that view. Were it not for that consideration, I consider that a sentence of six years' imprisonment for an unlawful and dangerous act manslaughter of the kind which here occurred would have been manifestly inadequate.

41 I have had the advantage of reading in draft the reasons for judgment of Maxwell P and the additional observations made by Nettle JA.

42 On a charge of manslaughter by unlawful and dangerous act it is unnecessary for the prosecution to establish that the offender intended to commit a dangerous act or that he intended any of the consequences which ensued. It is sufficient that the act, viewed objectively, was dangerous. But the absence of an intent to cause injury remains relevant to penalty. As the reasons of the President and Nettle JA emphasise, the present circumstances fall within that category of cases in which the appropriate sentence is informed by the absence of an intent to injure.[19] I agree that the appeal should be dismissed.

[1] This section of the judgment is based on the Crown summary as presented on the plea.

[2] Cf R v MacNeill-Brown; R v Piggott [2008] VSCA 190.

[6] R v Lovett [2008] VSC 60, [22] (citations omitted).

[7] According to a report before the Court from a forensic psychologist, an IQ of 74 meant that Lovett was in the fourth percentile, meaning 96% of the population would do better.

[8] R v Lovett [2008] VSC 60, [15].

[14] Sentencing Advisory Council, Sentencing Snapshot No 28, Sentencing Trends for Manslaughter in the higher Courts of Victoria, 2001-02 and 2005-06 (August 2007).

[15] Roadley (1990) 51 A Crim R 336; Champion (1992) 64 A Crim R 244; Clarke [1996] VICSC 30; [1996] 2 VR 520; R. v Richards and Gregory [1998] 2 VR 1; R v Yaldiz [1998] 2 VR 376; R v Williams [2000] VSCA 174; R v Bux [2002] VSCA 126; Ulla [2004] VSCA 130; (2004) 148 A Crim R 356.

[19] R v Sypott [2003] VSC 327, [31] and the cases therein referred to.

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