DPP v Samson-Rimoni [2010] VSC 111

2 The death of Corey McGoon occurred in the following circumstances. You arrived at a party at the home of the Kurth family in Clayton on the evening of Saturday 13 September 2008 at about 10.00pm. Some time after you arrived, you were talking about a fight you had been in some weeks before and, during the course of the discussion, produced a knife from the front of your pants which you said your father had given you for protection.

3 In the early hours of Sunday 14 September 2008, while the party was still continuing, Simon and Shane Middleton, two brothers who were also at the party, began an argument which developed into a physical confrontation on the front lawn of the Kurth residence. During that fight, punches were thrown and others at the party observed what was occurring, including the deceased Corey McGoon and yourself. McGoon tried to stop the fight but, when he did so, you told him to leave them alone and let them fight.

4 You and McGoon then, yourselves, started to argue and there was a physical altercation, during which you assert that McGoon punched you to the head once or twice, or perhaps even three times. Other people present then intervened to stop that confrontation.

5 Shane Middleton left the party on foot, having been told to do so, and was walking along Fortuna Street in the vicinity of the Kurth household when his friend, the deceased Corey McGoon caught up with him and offered to drive him home. As they drove in McGoon's car along Fortuna Street in the direction of Browns Road, they saw you walking away from the party on the footpath further up towards the corner. You had also left the party and were heading home.

6 The evidence suggests that you then approached the vehicle and there was a dispute as to what then occurred. You asserted that you wanted to know from McGoon why he had hit you, although it was suggested in the evidence of Mr La Rocca that in fact you had used words suggesting that there should be a further physical confrontation. Mr La Rocca also gave evidence that you slapped the deceased through the driver's side window. I am not satisfied that occurred although I am not sure much turns on it. I consider my conclusion is equally consistent with the jury's verdict.

7 At all events, the deceased got out of the car and there was a confrontation between the two of you. The deceased was unarmed. As a result of that confrontation which involved you stabbing the deceased, he sustained several injuries, including a stab wound to the chest, which ultimately caused his death. The confrontation between you and the deceased was brief as the witness La Rocca described it.

8 After this had occurred, you went back into the party and endeavoured to obtain assistance for the deceased by saying to others in the house "Corey's out on the road and he could have been hit". People went out to assist him, but his life was unable to be saved. The evidence revealed that you also made two calls to the emergency "000" number. One was at 2.37am from the Kurth family home and the other was at 2.44am using a mobile, which you had borrowed from a passer-by named Sunit Sarkar, who was walking nearby. During the course of the second call from the mobile phone, you described that you had assaulted someone and said you "needed to be arrested". You were asked whether you used any weapons to carry out the assault and you lied by saying to the operator that you did not. However your conduct after the offence was unusual and did not display the usual callous indifference to the fate of the deceased which is often the case.

9 You were interviewed by the police and freely admitted your involvement in the confrontation of the deceased, but lied in relation to whether or not you were in possession of a knife. You initially said that you had picked something up off the ground which you could not identify for the purpose of defending yourself but later, when confronted with the evidence from the pathologist, you finally admitted you were in possession of a knife.

10 The verdict of the jury clearly demonstrates that they were not satisfied to the required standard that you intended to kill or cause really serious injury to the deceased. The verdict of the jury also appears to me to demonstrate that they rejected any notion of self-defence.

11 It has been submitted on your behalf by Mr Johns that this offence occurred in circumstances where you were responding to an aggressive approach by the deceased and that the incident was brief. Certainly, the evidence appears to confirm that. You had consumed a significant amount of alcohol during the evening.

12 There were five victim impact statements filed in the Court and read aloud to me by Mr Heath. Those statements came from the deceased's parents Fiona and Douglas McGoon, and the deceased's siblings, Nakita, Hope and Douglas John McGoon. The statements were heart rending. They once more demonstrate the tragedy for the families involved in an incident such as this and desperate loss felt by those in the family of Corey McGoon. As I noted at the time, it is appropriate that these statements be read aloud before the Court and taken into account in the sentence I impose and they have been. As I also noted there are a number of other legal principles that I must pay attention to in fixing the sentence to be imposed on you. The fact is that there is nothing the Court can say or do which will substantially reduce the pain that members of Corey McGoon's family have felt and continue to feel.

13 I can only hope that the real lesson from this tragedy is a greater and clearer understanding of how easily and quickly the production of even a small domestic knife in a minor confrontation can end in tragedy. It takes so little for a knife such as the one you used to fatally damage vital organs.

14 You are now 21 years of age without prior convictions and clearly fall into the category of a young offender. Your lack of previous convictions is significant. At the time of committing this offence, you were 19 years of age. I agree with the submission made on your behalf that your youth is an important factor and I take it into account. I do that both in relation to the desirability to maximise your rehabilitation and also accepting the submission that your youth combined with the alcohol you had consumed is relevant in understanding why you did what you did.

15 After being arrested and interviewed, you were placed in custody and have remained in custody since that time, which is some 19 months. You had not previously been in prison. I note that you made no application for bail on the basis that you believed that it would "raise the emotional level of the family."

16 You are originally from New Zealand. Your mother died of lung cancer when you were aged three and you are one of three siblings and were raised by your father. You have no contact with you sisters, but maintain contact with a brother.

17 You came to Australia with your family when you were aged ten and maintained a close relationship with your father, who is very supportive of you. Your primary education was in the Clayton and Noble Park areas.

18 After completing your education, you have had a labouring job and, at the time of your arrest, you were about to commence a carpentry apprenticeship but were working as a storeman in a meatworks.

19 I have been provided with a report by Mr David Ball, who is a forensic psychologist, which demonstrates that notwithstanding being imprisoned for the past 19 months, you have made some good use of your time and have apparently been usefully employed within the prison system. His report indicates that you do not have any aspects of your personality that might suggest you would commit an offence like this again. That conclusion seems to be supported by your uncle Munro Rimoni who gave evidence before me that he has had regular contact with you for a significant part of your life.

20 I am told by Mr Johns, and the prosecution agree, that a formal offer to plead guilty to manslaughter was made in writing on or about 17 November 2009. There is no issue between you and the prosecution that such an offer was made and rejected. It is of no consequence that you did not plead guilty to manslaughter in the presence of the jury panel. As Mr Johns submitted there are good forensic reasons for not doing that. It is, I think, appropriate to regard that offer as a sign of your remorse and a willingness to undertake some responsibility for what you had done. It is regrettable that such an appropriate offer was not accepted.

21 Having observed you during the course of the trial and noted your conduct immediately after the incident which caused the death of Mr McGoon, I have little doubt that you are remorseful for what occurred. I accept that the lies which you told to the police about the possession of a knife were told out of a sense of panic and all the indicators are that you are generally regretful in relation to the death of Mr McGoon. Your prospects of rehabilitation are argued to be good, based on your level of education, the lack of prior criminal history and the support that you have obtained from your family. That support has continued from a number of your family members whilst you have been in custody prior to your trial. In his evidence before me, your uncle Munro Rimoni suggested that your employment opportunities in the construction industry were good when you are released from custody. In addition, I have been provided with four certificates attesting to the completion of a number of courses whilst at the Metropolitan Remand Centre.

22 I am of the opinion that a lower than usual parole period should be applied in the present circumstances. I consider that you will benefit from the supervision that will occur once you are released on parole. I notice that Mr David Ball recommends that you be provided with supervision and support in the community upon your release and the slightly extended period of parole would be consistent with this recommendation.

23 As Mr Heath correctly pointed out the seriousness of the offence of manslaughter, despite the variety of conduct that might constitute the offence is reflected in the maximum penalty of 20 years imprisonment. As the Court of Appeal have said, that maximum is a yard stick to be balanced with other relevant factors.

24 From the point of view of the community the tragedy of this case is that it was thought that it was a good idea to carry a knife for protection and that you did so. I accept, and the evidence supports, that you had been involved in an earlier incident some weeks before but through this tragedy you now understand how easily even a small knife can destroy not only the life of the person on whom wounds are inflicted but that person's family, you and your family. You were given bad advice. Mr Johns submitted that your actions were spontaneous on this night when you confronted Corey McGoon and not premeditated. However, the evidence indicates that you went to the car he was in and, of course, you produced the knife you were carrying and used it.

25 In addition, as well as being in possession of this knife you had consumed a significant amount of alcohol. You told the police you started drinking at about 3:00 pm on that day and then had something of the order of nine stubbies with your last drink at about 1:00 am. In addition the jury heard from Mr Sarkar, the gentleman who lent you the phone after the incident that he thought you were under the influence of alcohol at the time you spoke to him. This has been a lethal combination. Despite the significant list of factors which count in your favour it must be realised that is a serious offence and must attract a significant sentence.

26 For the manslaughter of Corey McGoon, you are sentenced to be imprisoned for nine years. I fix a minimum term before you are eligible for parole of five years. I declare that the time you have already served as pre-sentence detention is 573 days. I direct that these declarations and their details be entered into the records of the court. I will make the forfeiture and disposal orders that have been sought by the prosecution. I will also order that the forensic sample provided by you be retained pursuant to s 464ZFB(2) of the Crimes Act.