DPP v Seymour [2023] VSC 324

4 Around 1:45am on 4 August, you rang an associate, Roberto Fanton-Conn, and told him that you had a surprise for him. He understood that to mean that you had drugs. He said he would be around in 15 minutes.

5 Mr Fanton-Conn rode his bicycle to the boarding house, and came to your room. You were smoking ice with a pipe. You offered him some, which he injected. You and Mr Fanton-Conn then sat in your room, talking very loudly.

6 Around 2:15am, Mr Daniels banged on the wall between your two rooms. He told you to be quiet; he yelled "Shut the fuck up" and "Be quiet, you junkie cunts". You replied by swearing, and saying something like "Come on then".

7 At that time, you were sitting in your room, about a metre from the door. You had been holding and playing with a silver pocket knife, which had a 10cm long blade. Mr Fanton-Conn was sitting on your bed. The door was closed.

8 Mr Daniels walked out of his room and came to your bedroom door. He stood outside it, demanding that you open it.

9 Suddenly, you leapt up from your seat and opened the door with your left hand. You were still holding the knife in your right hand. You immediately stabbed Mr Daniels once in his chest, and then closed the door. Neither of you said anything before or after the stabbing.

10 Mr Fanton-Conn said to you, "Kev, you stabbed him in the heart". You replied, "No I didn't, no I didn't, I stabbed him in the stomach area". You also said, "Did you see how fast I did it?" You were still holding the knife in your hand. You then cleaned the blood off the blade with a wipe.

11 Mr Daniels was badly injured and bleeding. He returned to his room, where he called one of the other residents to ask for help. She went into his room and saw him bleeding from the chest. He told her he had been stabbed. She and another resident called 000, and tried to stop the bleeding with a blanket.

12 Another resident came to your door, and told you and Mr Fanton-Conn that Mr Daniels was in a pool of blood.

13 After he left, you took the knife outside, and placed it next to the exterior doorstep to your room. You then went back inside your room. Mr Fanton-Conn told you he was leaving. You asked him to wait, and said you would come with him. The two of you fled the scene together; you were running, and Mr Fanton-Conn was riding his bike.

14 Emergency services arrived at the boarding house just after 3:00am. Despite resuscitation efforts, Mr Daniels died at the scene at 3:46am. The post-mortem examination found that the cause of death was a single stab wound to the chest, which led to severe blood loss.

15 Over the next few hours, you called or texted numerous people you knew. You told them either that you had stabbed or killed someone, or there had been "an incident" at your place; that the police were looking for you; and that you could be going to jail for many years. In none of those calls or messages did you say anything about having acted in self-defence.

16 Around 8:00am, you and Mr Fanton-Conn went to his mother's place. Mr Fanton-Conn tried to help you, by writing down a false version of events which asserted that you had been acting in self-defence. In several subsequent phone calls to friends, you claimed you had stabbed someone in self-defence.

17 Police located you in the Frankston area just after noon that same day. You were still wearing the same clothes as the night before.

18 I turn to consider the seriousness of your offending.

19 In your substance-affected state, you and Mr Fanton-Conn had been making far too much noise in the early hours of the morning. Mr Daniels was entitled to be annoyed, and to call out to you to shut up. Instead of shutting up, you called out to him to "Come on then". When he came to your door and demanded that you open it, you did not even speak to him. Instead, you immediately opened the door, lunged forwards, and stabbed him in the chest. Mr Daniels said and did nothing to provoke such a violent response.

20 You showed no concern for Mr Daniels after you stabbed him. Instead, you cleaned and discarded your knife, before fleeing the scene.

21 I accept that you did not arm yourself with a dangerous weapon for the purpose of stabbing somebody; rather, you had been playing with the knife for some time after using it to "cut" the ice. Furthermore, you stabbed him once; it was not a prolonged attack.

22 It is an aggravating feature of your offending that you were on bail at the time, on a charge of allegedly stabbing a housemate approximately four months earlier.

23 In assessing the seriousness of your offending, I have also had regard to the nature and effect of your mental health and substance abuse issues, and the role they played in this offending. I will discuss those issues in more detail shortly.

24 As well as taking Mr Daniels' life, your actions have affected his family members. A victim impact statement was provided on behalf of Mr Daniels' older brother, Les. Les's own serious health problems have been exacerbated by the circumstances in which Mr Daniels was killed, and by feelings of regret that he was unable to protect his younger brother. Les's wife and son are also suffering, both from losing Mr Daniels, and because he is not there to help and support them in caring for Les.

26 You were born in February 1968, and are now 55 years old.

27 You have provided varying, and at times inconsistent, accounts of your childhood and family history; I will say more about that later. However, the following matters appear to be undisputed.

28 You are one of four children born to your parents. Your parents were both heavy drinkers, and there was a lot of verbal fighting within the family. There was not much money in the family home. Your parents separated when you were about 12. You continued living with your mother.

29 You started getting in trouble with the police around that time, and spent several periods in youth justice centres.

30 You have a long history of alcohol and substance abuse, beginning in your early teens. You have tried many different drugs over the years. You began using ice about 10 years before this offending.

31 You left school at the end of year 9. Since then, you have only had very limited employment in unskilled positions.

32 You have lived a fairly itinerant life in different parts of Australia. You have experienced many years of unstable housing.

33 You have a long criminal history in several Australian jurisdictions. Many of your convictions are for driving, drug or property offences. However, you have more than 10 prior convictions for violence and weapons-related offending, beginning in 1987. You have served several terms of imprisonment over the past three decades.

34 Your counsel argued that there should be a reduction in your sentence on account of what are referred to as the Bugmy principles. Over the years, you have given differing accounts of your upbringing to mental health experts. For example, on some occasions, you have described witnessing, and being subjected to, significant physical violence in your childhood; on others, you have not mentioned any such history.

35 Associate Professor Andrew Carroll, a forensic psychiatrist who examined you for the purpose of sentencing, says that the extent of your childhood trauma is unclear, and it is hard to establish the extent to which your reports of childhood violence are based on delusional memories of alleged abuse.

36 Your father died about 25 years ago. Your mother died in 2006. You are still in touch with one of your sisters, although she has health issues of her own. You have been estranged for many years from your other two siblings, and from your two adult children. You have been single for a long time. You were not able to nominate anyone to whom the mental health experts could speak, in order to verify the details of your personal history.

37 In the circumstances, there is insufficient evidence upon which the court could make a finding that the principles in Bugmy are engaged. However, your background is still a matter that I have taken into account in sentencing you.

38 You have a long psychiatric history, starting in your mid-20s, when you were first diagnosed with schizophrenia. You have been receiving a disability support pension ever since then. Over the past three decades, you have had multiple psychiatric admissions into hospitals or mental health facilities.

39 Despite taking antipsychotic medication, you continue to suffer from active psychotic symptoms, including complex persecutory and bizarre delusions, and auditory hallucinations. You experience a profound sense of persecution from multiple people in your environment, and are prone to misinterpret people's comments and actions.

40 Dr Carroll has also diagnosed you as suffering from a moderate personality disorder, with traits of "dissociality" (empathy impairment) and "disinhibition", which predates your schizophrenia. He believes that your personality functioning has been further eroded by the effects of your schizophrenia.

41 You have also been diagnosed with Methamphetamine Use Disorder, which is currently in remission in the prison environment.

42 Dr Carroll holds the following opinions as to the role your mental illnesses played in this offending. There is no evidence that you stabbed Mr Daniels as a direct result of experiencing delusions that involved Mr Daniels. However, around that time, you were perpetually feeling persecuted as a result of entrenched, chronic and delusional beliefs, which were reinforced by regular hallucinations. You were in a state of chronic, moderately-elevated hypervigilance with respect to your own safety, as a direct result of those psychotic symptoms. Your personality disorder was also a relevant factor. Your dissocial trait rendered you more likely to choose an aggressive solution to the perceived challenge posed by Mr Daniels. Your disinhibition trait reduced your capacity for reflective, prudent behaviour. In those circumstances, Dr Carroll believes that there is a causal link between your mental health conditions and the offending.

43 There is no dispute that, by reason of your mental state at the time of offending, Verdins principles 1, 3 and 4 apply, so as to moderate your moral culpability and the application of the principles of general and specific deterrence. However, the moderating effect is reduced to some extent because, at the time of offending, you were also under the influence of ice, which would have further increased your arousal levels and hypervigilance.

44 There is also no dispute that Verdins principle 5 applies in your case. Although your mental state has improved to some extent in custody, you are still experiencing active psychotic symptoms. Dr Carroll's opinion is that your persistent persecutory beliefs, and the voices that you continue to hear, make your day to day life in custody more burdensome than it would be for a person without schizophrenia.

45 You have spent most of your time in custody in prison psychiatric units. You have recently been moved back into a mainstream unit, which you have found challenging. Dr Carroll believes that the extra stress of mainstream prison is likely to place you at a significant risk of deterioration in your mental state. Accordingly, you are also entitled to some moderation of your sentence on account of Verdins principle 6.

46 Although your mental health problems operate to moderate your sentence in these ways, they also increase the need for community protection. In September 2004, whilst you were in a psychotic state, you stabbed your 61 year old mother three or four times with a knife, while she was in bed. Since you were arrested for this offence, you have already been violent towards other prisoners on two occasions, in response to psychotic symptoms. There is no evidence one way or the other as to your mental state at the time of committing your other violent offences. However, in assessing the issue of community protection, I also note that your last conviction for a violent offence was in 2013, and the one before that was in 2007; that is to say, you have been able to live in the community for lengthy periods of time without engaging in violence.

47 Dr Carroll describes you as presenting a high risk of violent re-offending. He also acknowledges that assessing your prospects of rehabilitation is a complex task. On the one hand, in recent times you have been taking your antipsychotic medication voluntarily, and have demonstrated a willingness to engage with support services that have been offered to you. On the other hand, your schizophrenia has so far been treatment-resistant, and you do not seem to really understand or accept that there is any link between your drug use and your offending.

48 There is no doubt that your treatment needs are complex, and reducing your risk of future violence in the community will require intensive supervision and support.

49 Your counsel argued that a combination sentence of a period of further imprisonment plus a lengthy community correction order ("CCO") would be the most appropriate way of addressing your needs, enhancing your prospects of rehabilitation, and protecting the community.

50 Although the prosecution accept that your impaired mental functioning means that the sentencing discretion is not limited to a term of imprisonment,[1] they argue that nothing less than a sentence of imprisonment would be appropriate in this case.

51 The parties were only able to refer me to one case in which a combination sentence has been ordered in respect of somebody found guilty of manslaughter.[2] However, given your mental illnesses and the complexity of your treatment needs, I requested a pre-sentence report from Community Correctional Services (within the Department of Justice and Community Safety), to see whether they would be able to manage and assist you under a CCO.

52 On 16 June 2023, Community Corrections provided a very detailed and helpful report, based on three interviews with you, as well as on their consideration of relevant documents. After carefully considering the matter, Community Corrections concluded that you were an unsuitable candidate for a CCO, because of your history, your mental health instability, other relevant risk factors, and your complex treatment needs. The report suggested that your needs could best be met through high level support, funded by the National Disability Insurance Scheme ("NDIS"), upon your eventual release from custody.

53 One of the authors of the report attended court on 29 June 2023, at the request of your lawyers. During the course of her cross-examination, she conceded that some of the matters to which the report referred were historical, rather than current, in nature. However, her views were also affected by substantial concerns about current risk factors. \Nothing arose during the course of that cross-examination that caused her to change the overall opinions expressed in the report as to your unsuitability to be the subject of a CCO.

54 Although I am not bound by the opinions expressed in the Community Corrections report, having regard to the matters discussed in it, together with the additional oral evidence, I am not persuaded that it would be appropriate to impose a combination sentence in this case. Instead, I will be imposing a sentence of imprisonment with a non-parole period.

55 Dr Carroll's opinion is that to manage the risks that arise from your mental health in the long-term, you would benefit from a longer period of close supervision and support in the community. It is very much in the community's interests that you are given the opportunity to receive suitable counselling, treatment and support under the supervision of the Adult Parole Board, and with the assistance of the NDIS, in order to enhance your prospects of reintegration into the community, and to reduce the risk of further offending. Your current NDIS support coordinator will be able to help you with your transition into the community, including to apply for more funding before you are released. The precise supports you will be eligible for under the NDIS will be clearer after you are assessed by an occupational therapist, which will occur in prison and is already funded. I am going to set a shorter than usual non-parole period, so that these supports can be fully implemented and tested while you remain under the supervision of the Adult Parole Board.

56 There are a few other matters that I need to address, before I announce your sentence.

57 You were originally charged with murder. Your trial was due to begin on 28 November 2022. You offered to plead guilty to manslaughter in May and August 2022; however, the prosecution rejected both of those offers. On 16 November 2022, you again offered to plead guilty to manslaughter. On that occasion, the prosecution agreed to reduce your charge from murder to manslaughter, and to accept your plea. I treat this as a relatively early plea.

58 Even though the prosecution case against you for manslaughter was a very strong one, your guilty plea still has 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. Because of your plea, witnesses, and family and friends of Mr Daniels have been spared what would have been a traumatic trial for all concerned.

59 During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In a case called Worboyes,[3] the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.[4]

60 In fact, the Supreme Court has cleared its pandemic backlog. Custodial conditions are largely back to what they were before the pandemic. However, the Court of Appeal has recently held that, for the sake of consistency, Worboyes discounts (even if modest) must continue to be given in all courts for so long as any of them are experiencing pandemic-related delays.[5]

61 Apart from any remorse that is inherent in your plea, there is no evidence that you genuinely feel sorry for Mr Daniels' death. On the contrary, you continue to assert that what happened was either an accident, or a situation in which you were acting in self-defence. That said, I accept that the symptoms of your mental health problems continue to contribute to your perception of events, and have limited your capacity to accept responsibility or feel remorse.

62 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 7 years. I fix a period of 4 years as the period you must serve before you become eligible for parole.

63 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 9 years' imprisonment, with a non-parole period of 6 years and 6 months.

Further, I declare that the period to be reckoned as already served under this sentence is 694 days, not including today's date. I direct that there be noted in the records of the Court the fact that such a declaration was made and its details.

[1] The prosecution accept that the exception in s 5(2H)(c)(ii) of the Sentencing Act 1991 has been established in this case.

[2] R v McLaughlin [2016] VSC 189, T Forrest J.

[3] Worboyes v The Queen [2021] VSCA 169.

[5] Biba v The Queen [2022] VSCA 168, [26].