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[2007] VSC 55
Supreme Court of Victoria
2007-03-08
CURTAIN J
Original judgment source is linked above.
Criminal Law - Sentence - Plea of Guilty to Manslaughter - Prior Convictions
1 Dallas Rhodes you have pleaded guilty to one count of manslaughter and have admitted prior convictions.
2 On the morning of the 30 August 2005, as you were leaving for work you went into the bedroom you shared with your wife Michelle to kiss her goodbye. You sat on the edge of the bed and tried to talk to her about the children, and about money that you thought was missing from your bank account. You saw a large kitchen knife on the floor you picked it up and, within a second or two, you stabbed your wife once in the chest. You immediately realised what you had done, you pulled the knife out, threw it on to the floor, and ran out of the room calling out to your children to ring an ambulance. You rang 000 and rendered your wife such assistance as you could. The police attended, as did the ambulance, but by then your wife's condition was rapidly deteriorating. She went into cardiac arrest but was resuscitated.
3 At this point, you were arrested on assault charges and conveyed to the Narre Warren police station.
4 Your wife's condition continued to deteriorate, she was moved to a MICA unit and arrested for a second time, and was unable to be revived and pronounced dead at 7.40am.
5 An autopsy conducted later that day determined that the cause of death was a single stab to the wound left chest wall.
6 Whilst at the house you admitted to your children that you had stabbed their mother and you told them you were sorry. You also told the emergency services operator that you had stabbed your wife, and you admitted your responsibility to the police, both at the house, and at the Narre Warren police station. It was only later that morning after you had enquired as to your wife's well-being that you were told that she had died. You admitted your responsibility for her death both in conversations with the police officers en route to the homicide squad, and during the course of your record of interview.
7 You told the police that you did not know why you had picked up the knife, that you weren't thinking straight at the time, and that you didn't mean to kill Michelle. You also told the police that there had been a "lot leading up to it" and the that the last three and a half months had been "terrible, and terrible on the kids".
8 Indeed, considerable evidence was led as to the nature of the relationship between you and your wife and the children and in particular, your three youngest children and the various pressures which were operating on the family unit. I do not propose to re-visit those issues as they were fully canvassed at the trial and were not disputed by the Crown. Suffice it to say that the relationship between you and your wife, although enduring, was at times volatile and tempestuous principally, it appears, as a result of Michelle's erratic behaviour; which behaviour was confirmed by the evidence of the psychiatrist Dr Peter Graff, who in July 2005 had diagnosed your wife as suffering from borderline personality disorder.
9 Your counsel Mr Toohey principally submitted to the jury that your act of stabbing was a spontaneous, impulsive act borne of the mounting tensions, pressures and frustrations building up over the years, months, days and moments preceding Michelle's death and culminating in the act of stabbing. Alternatively Mr Toohey submitted that if the jury was satisfied as to the requisite murderous intent, then you had been provoked to such conduct by reason of the same pressures, tensions and frustrations.
10 The jury were unable to arrive at a verdict and it is in these circumstances that the Crown accepted your earlier plea of guilty to manslaughter made on arraignment.
11 On 22nd March 2006 at the conclusion of the committal hearing you offered to plead guilty to manslaughter on the basis, as I understand it, of the lack of mental element and/or provocation. The Crown rejected the offer, being of the view that the issue of your state of mind was best determined by a jury, this they were unable to do.
12 I propose to sentence you on the view of the evidence most favourable to you, that is, consistently with Mr Toohey's principal submission to the jury, that this was a spontaneous, impulsive act, a lashing out as he put it, with no intention to kill or to cause really serious injury.
13 You are 43 years old and the father of five children aged between 12 and 22, a sixth child died in infancy. You and Michelle were married for 22 years and although it was a difficult relationship, it appears that you were genuine in your love for each other.
14 You were born in Christchurch, New Zealand, you mother is still alive and living in New Zealand. Your father died 12 months ago and your only sibling, your sister Vicky Rhodes, died the day after giving evidence in your trial.
15 You had been estranged from your father by reason of his physical and verbal abuse of you, your mother and sister, and it was for this reason that you were motivated to provide a stable environment for your own family. Similarly, the inappropriate sexual behaviour of your son Michael towards his sister, was especially significant to you because your own sister had suffered sexual abuse by your father. It was submitted that when you became aware that Michael also had been abused by a family friend, this tore at the heart of the family and caused you great distress.
16 You left school at Year 8. You ran away from home because of the problems of home life and, as a consequence you were placed in a boys home for 12 months, and upon your release you went to live with your mother who had then separated from your father. You met Michelle when you were 21 and you both came to Australia with your son in 1986, you returned to New Zealand in 1998, and then returned to Australia in 2001.
17 You have always been employed when you could, your longest job was two years working at Toyota and as at August 2005 you had been working for eight months at Atlas Energy in Dandenong which work you enjoyed. Your earnings went towards the upkeep of the family but the evidence at the trial indicated that the family was in dire financial circumstances, to say the least. You have had a long standing problem with alcohol and drugs, as did Michelle, but you had curtailed your drinking and since 2001 you were an irregular user of drugs.
18 You have also had long standing difficulties with anger and you have been diagnosed as suffering depression. You were on daily anti-depressants and valium, and you were suffering insomnia, low mood, and poor appetite, in the months leading up to Michelle's death. You had twice attempted self-harm in 1993, and again, in 1998.
19 Although psychiatrists differ in their opinions as to whether you suffer bi-polar disorder or dysthymic disorder, that is, chronic depression, it appears that you were being treated for depression at the time of Michelle's death. Indeed, Doctor Cidoni, psychiatrist, in his report dated 9 February 2007 and tendered in evidence as 'Exhibit 1' has recommended that you remain on anti-depressant medication and that you be monitored for suicidal ideation.
20 The preponderance of evidence from Michelle's mother, Mrs Sloper, your late sister, Vicky Rhodes and her partner Mr Aitchinson, and indeed from four of your children, suggests that you were the principal carer and homemaker. You were, and are, devoted to your children and it appears that your principal concerns were to provide them with a stable home life, which despite your efforts, was unachievable. Sadly, as a result of your actions, such home life is now lost to you, and your children.
21 Victim impact statements from Vicky McGrath, the deceased's sister, Mrs Sloper, the deceased's mother, and your daughters Angela and Lynnelle, and their carer, Mrs Kara Coles, were all tendered in evidence as 'Exhibit A.'
22 They each speak of having forgiven you and they all want you to be reunited with your children. Your daughters feel your loss acutely. They are presently living in Newcastle and have regular telephone contact with you, but can only visit rarely. Your youngest son Jesse is living in New Zealand with your eldest son and your son Michael, who lives in Victoria.
23 Mrs Sloper in her evidence at the trial stated that she "loved you dearly".
24 Your counsel has submitted that in these circumstances where your family has forgiven you, and they are at one in their wish to see you reunited with your children, that the only appropriate sentence is one which does not require you to spend any further time in jail.
25 Counsel for the Crown Mr Cooper submits that such a sentence would fall outside the range of appropriate sentences for offences of this kind.
26 In my view, although there is much that is sad and tragic about this case and your personal circumstances, both at the time of your wife's death and now, nonetheless those features do not eliminate the need to pass an appropriate sentence having due regard to all the relevant sentencing considerations including general deterrence, which is of considerable weight in cases of domestic killings. For these reasons, although I acknowledge the united attitude of your family, I can not accede to your counsel's submission to confine the period of imprisonment to the days already served.
27 That is not to say however, that I should not have due regard to the attitude of your children and Michelle's mother and sister. I accept that they have all forgiven you and I take that into account in determining the appropriate sentence. I also accept, and take into account, that your children particularly your younger children, will suffer greatly by reason of your prolonged incarceration; they have not only lost their mother but they are also denied the presence of their father in their lives particularly in the case of Lynnelle now aged 15, Angela now aged 13, and Jesse now aged 12. I accept also that the youngest siblings cannot live together as a family unit as the girls and Jesse live in different countries. So it is that the consequences of your incarceration is to effect a considerable hardship to the lives of your young children. However, it is not to be forgotten that the principal victim of your criminal conduct is the deceased, your wife.
28 Manslaughter is a serious crime involving, as it does, unlawful killing of another and as such any sentence imposed must reflect the nature and gravity of the offence here committed, which in this instance involved the fatal use of a knife as your wife lay in bed. I accept, however, that upon inflicting the wound you immediately sought assistance, expressed remorse and admitted your responsibility. I accept and take into account also that you co-operated fully with the police and that you made frank admissions in the record of interview and in your conversations generally with them. I accept also that, whilst in prison, you have engaged in vocational courses and drug prevention programmes as is apparent from the material in 'Exhibit 3'. I accept, therefore, that you are making efforts towards your rehabilitation and that with the support of your family, your continued medication, your insight into your drug, anger and alcohol problems, such as they are, that the court maybe confident about your prospects for rehabilitation.
29 In this regard I note your previous convictions which apart from, an intentionally/recklessly cause injury where your late wife was the victim and for which you were placed on a community based order of two years duration, your prior criminal history does not involve crimes of violence. Further your last conviction was secured in 1994 and you have not been charged with any other offences since then until August 2005. This is not to deny that both you and Michelle had, from time to time, intervention orders out against each other but generally these appear to have been discharged or not proceeded with and indeed, at the time of her death, you had an intervention order against Michelle and you had the guardianship of the young children.
30 So it is, that in these circumstances, the court maybe confident that your prospect for rehabilitation are favourable and therefore considerations of specific deterrence maybe given less weight in the sentencing process. Accordingly in sentencing you I take into account your plea of guilty and give you a discount for it. I take into account your remorse and your co-operation with the police and your frank admissions to them. I take into account your age, that at the age of 43 you are the father of young children, and I take into account also their plight that they are left without their mother and, effectively, their father. I take into account the attitude expressed by the victims of your conduct, that they have all forgiven you and wish for the family to be reunited. In short I take into account all matters which go in your favour and I am satisfied that in the circumstances of this case the sentencing discretion may here be tempered with mercy. Against this however, I must take into account the nature and gravity of the offence here committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and give effect, although to a degree moderated, to considerations of specific deterrence. Any sentence imposed must also give due weight to general deterrence and, signal to all, that human life is to be protected.
31 Accordingly taking into account all relevant matters and, without in any way diminishing the nature and gravity of the offence here committed, I propose to sentence you as follows: for the crime of manslaughter you are convicted and sentenced to six years imprisonment and I order that you serve a period of four years before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 555 days.
DPP
Rhodes [2007] VSC 55