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[2011] VSC 173
General information, not legal advice.
Supreme Court of Victoria
2011-05-13
WHELAN J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Manslaughter - Stabbing - Intoxication - Early offer of guilty plea - 10 years' imprisonment with non-parole period of 7 years 6 months.
**1 David Frank Tate, on 4 July 2010, after a protracted drinking session, you killed your friend, John Desmond Harris, by a single stab wound with a steak knife which you were using to eat your dinner. The next day you were charged with murder. By a letter dated 26 November 2010 you offered to plead guilty to manslaughter. That offer was accepted prior to the date scheduled for the committal. By an indictment filed in this Court on 16 March 2011 you were charged with the crime of manslaughter and on 15 April 2011 you were arraigned on that charge before me and pleaded guilty.
2 The maximum penalty for the crime of manslaughter is 20 years' imprisonment.
3 The circumstances of the offence can be briefly stated. Mr Harris was approximately 20 years older than you. You met him through mutual friends and for a time you shared a residence with him. You engaged in heavy drinking sessions together. The two of you fell out as a result of arguments over your behaviour towards a 16 year old girl, who was a close friend of Mr Harris and who he considered to be like a daughter, and you ceased living with him.
4 On Saturday 3 July 2010 you were staying with a woman named Michelle Steinberg. Mr Harris came to see you. You were not there when he arrived . You were out with your three children who were with you over that weekend on an access visit.
5 When you returned with your children that afternoon you and Mr Harris discussed matters and apparently sorted out your differences. The two of you then began drinking alcohol, and you both continued drinking from then until the following Sunday evening, when the fatal stabbing occurred. This prolonged drinking session was interrupted only by periods when you each fell asleep. At one point during that session, the argument about the young woman resumed and resulted in you threatening Mr Harris with a metal vacuum cleaner pipe.
6 At about 7.30 pm on Sunday 4 July 2010 Ms Steinberg began preparing dinner. She prepared dinner for your three children and for you and Mr Harris. She handed you your dinner with a fork and a steak knife and did the same for Mr Harris who was sitting next to you.
7 No-one witnessed what then occurred and, according to what you have told your own family and a psychologist, you do not know what happened. At some point you stabbed Mr Harris in the chest with your steak knife, penetrating his heart. Attempts by Ms Steinberg and by ambulance officers to revive Mr Harris were unsuccessful and he died at the scene.
8 On the plea your counsel submitted that it was "fair to surmise" that the issue of the 16 year old girl had arisen again and was the "context" in which the blow was struck. Both counsel told me the basis of the manslaughter plea was that you struck Mr Harris to the torso whilst holding the knife without intending death or really serious injury. You were very intoxicated at the time, as was Mr Harris.
9 When interviewed by police you gave a consistent account of all of the events surrounding the stabbing, but did not describe or refer to the stabbing itself.
10 You were born on 15 January 1977 and are now 34 years of age.
11 You have prior convictions for theft offences in 1995. In 2008 you were dealt with without conviction for two offences of shop stealing. Those matters were adjourned on condition that you attend and participate in the program at Odyssey House.
12 On the plea, the prosecution tendered an opening and also tendered victim impact statements from two sisters of the deceased, Belinda Smith and Leanne Smith. The victim impact statements were read by the prosecutor.
13 The deceased was described by his sister Belinda Smith in the following terms:**
"John was a man with great qualities. In life he was honest, loyal, gentle and loving just to name a few ... John was not an aggressive person and ... he would never have deliberately hurt anyone or anything."
14 The effect of Mr Harris's death on his family has been devastating. Belinda writes:
"John's death is something which sits in the pit of my stomach day after day, and will for the rest of my time. John was my big brother and my best friend."
Belinda also refers to the effect of her brother's tragic death on her own children.
"John trusted everyone, and could never see any bad in anyone, and it painfully kills me that he trusted the person who consequently came and took away his life, so brutally and undeservingly."
"Since John's death, a Christmas, a New Years, a wedding, my birthday and his birthday have all passed, and yet the pain does not get easier and the nightmares don't go away."
**16 On the plea counsel on your behalf tendered a report by the consulting forensic psychiatrist, Dr Danny Sullivan, dated 27 September 2010 and a report from the consultant forensic psychologist, Ms Pamela Matthews, dated 10 April 2011. Ms Pamela Matthews also gave evidence orally. Letters were tendered from your father and your stepmother and your stepmother gave oral evidence.
17 According to the history you gave to the psychiatrist and the psychologist, which was confirmed by your stepmother, you had a very difficult and disturbed upbringing. You were the youngest of four boys and both of your parents had significant alcohol problems. One of your brothers was killed in a road accident. Your parents separated when you were very young. Your father was able to address his alcohol problems. Your mother was not. She was dependent upon alcohol for many years. She went through a number of relationships with men who were also alcoholics. When she died, it was you who found her.
18 According to the accounts you have given of your childhood, you were sexually abused between the ages of about 5 and 7. You had significant difficulties at school and were often suspended. You began abusing alcohol and other substances from a very young age. You lived for a time with your father and stepmother while at primary school but then went back to live with your mother during high school.
19 After leaving school you worked in a variety of occupations including fruit picking, at canneries and abattoirs, and as a stacker operator. As a result of your own significant alcohol problem you have not worked in recent years.
20 You were married in 1993. You and your wife separated in 2007. You have three children. They were aged 11, 7 and 4 at the time of this offence. They were present in the house when you killed Mr Harris.
21 You have abused alcohol for many years and you have also abused other substances including amphetamines, petrol sniffing, ecstasy, and other drugs. You have on a number of occasions attempted to address your alcoholism. In 2007 you undertook two programs in Benalla after an admission to the Goulburn Valley Hospital. In 2007 while living with your father and stepmother you regularly attended Alcoholics Anonymous. In 2008 you undertook a program called "One Step" in Wangaratta and for a short time in 2009 you attended Odyssey House. You have received some psychological counselling over the years but have never been under psychiatric treatment.
22 Dr Sullivan is of the opinion that you suffer from poly-substance dependence. He expresses the opinion that there is no clear evidence of psychiatric illness such as schizophrenia. In his opinion there is no indication of significant personality disorder or marked cognitive impairment. He expresses the opinion that your intoxication at the time of the offence would have impaired your judgment and impeded your ability to think calmly or clearly. He observes that a critical feature of any potential disposition should be protracted drug and alcohol counselling, and suggests that upon your release you ought to be closely monitored and tested. He expresses the opinion that the likelihood of you being involved in future similar events to that for which I am sentencing you now would be minimised by abstinence.
23 Ms Matthews reaches similar conclusions to Dr Sullivan with one exception. Ms Matthews is of the opinion that you are displaying symptoms of borderline personality disorder.
24 In discussing the offence with Ms Matthews, you indicated that you could not recall what had occurred but that you accepted that you must have been responsible for the stabbing. Ms Matthews said in her report that what you told her in this respect was not an admission but rather an attempt at reconstruction. She reported that you expressed profound remorse to her and that you took full responsibility for your behaviour. She suggested that your inability to recall the stabbing raises the potential diagnosis of dissociative amnesia and/or acute stress disorder. In relation to disposition she recommended in addition to drug and alcohol intervention, a violence intervention program.
25 In her oral evidence, Ms Matthews said she had found you to be very remorseful, and said your absence of memory was consistent with a trauma reaction. She expressed the view that you have reasonable prospects of rehabilitation as long as you abstain from alcohol. She said you did now recognise the way alcohol had controlled your life.
26 Your counsel submitted that this was not a case where the particular legal principles which concern impaired mental functioning apply.[1] He explained that in this case it is your very unfortunate childhood, which has led to your severe dependency on alcohol, which in turn is the explanation for this tragic offence. I accept this approach and proceed on that basis.[2]
27 You have no prior convictions for violence. The evidence before me does not indicate a prior history of violence. There is no evidence which would enable a conclusion that you had foreknowledge that your intoxication could result in violence.[3]
28 The factors put on your behalf in mitigation are the following:**
(1) The evidence establishes that you have displayed genuine significant remorse.
(2) You advised of your willingness to plead guilty to manslaughter before the committal and you did then plead guilty at the earliest opportunity.
(3) There are reasonable prospects for your rehabilitation.
(4) You are presently being held in protective custody because of concerns held by authorities in relation to your safety. I was told that these concerns arise out of this offence.
**29 Your counsel conceded that denunciation and general deterrence must be significant factors. He submitted that whilst specific deterrence was relevant, the evidence as to your remorse meant that that was not a factor which needed to be prominent here. He submitted that the intoxication at the time of the offence (as a discrete factor) was neither an aggravating nor a mitigating factor. He submitted that the gravity of the offence was not at the high end and that it was a spontaneous single act. He submitted that this is a matter where a long period of eligibility for parole would be appropriate.
30 On behalf of the prosecution it was submitted that this was an offence towards the higher end of gravity in relation to offences of this kind. A weapon was used, namely the steak knife. There was no evidence of any provocation, and the victim was at the time very vulnerable due to his state of intoxication. The killing took place in the home of a friend and in front of three young children.
31 It was submitted on behalf of the prosecution that specific deterrence is especially important, given your history of substance abuse. It was submitted that your prospects of rehabilitation are not promising as they are entirely contingent upon your ability to overcome your alcohol dependence. The early guilty plea was to be assessed in the face of what was a strong prosecution case on manslaughter.
32 In my view this is a very serious instance of unlawful and dangerous act manslaughter. A knife was used on a vulnerable victim in the home of an entirely innocent female friend and in front of three young children. There is no evidence of any aggression by the victim towards you or of any conduct by him which could explain your brutal stabbing of him.
33 I accept Ms Matthews assessment of the situation in relation to rehabilitation. There are reasonable prospects of your rehabilitation but only if you are able to abstain from alcohol. It is impossible to predict whether you will be able to do so or not.
34 In my view specific deterrence remains an important factor here and general deterrence and denunciation are most important.
35 Otherwise, I accept the matters put in mitigation.
36 Counsel for the prosecution submitted that a sentence in the range of 8 to 10 years' imprisonment with a non-parole period of 6 to 8 years' imprisonment was appropriate. On your behalf it was submitted that the range is lower than was put by the prosecution.
38 The offence for which you must be sentenced is manslaughter and not murder. You did not intend to kill or to inflict really serious injury. You are remorseful and have pleaded guilty. You had a sad and disturbed childhood and are severely dependent on alcohol. You have made attempts to address your alcoholism. The evidence does not reveal a violent history.
39 On the other hand, this is a very serious manslaughter, committed using a knife in the home of an innocent friend and in front of three young children. You killed an intoxicated and vulnerable person who offered no provocation and who had exhibited no aggression towards you.
40 I do not consider that a long period of eligibility for parole is appropriate here, given the fact that the psychiatric and psychological reports recommend abstinence and testing, and given the unsuccessful attempts you have made in the past to address your substance abuse.
41 If you had not pleaded guilty I would have sentenced you to 12 years' imprisonment with a non-parole period of 10 years.
42 For the offence of manslaughter I sentence you to 10 years' imprisonment and I fix a non-parole period of 7 years and 6 months.
[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[2] Ms Matthews' report indicated that the offender met six of the nine criteria for borderline personality disorder in DSM-IV (five being sufficient for the diagnosis), and also observed that these diagnostic criteria did not cover the full constellation of the offender's presentation. Borderline personality disorder is capable of constituting the kind of condition dealt with in Verdins: see R v Howell [2007] VSCA 119; (2007) 16 VR 349 at 357. In this particular case the approach taken by counsel for the offender was appropriate. In any event having taken into account the circumstances of the offender's unfortunate childhood leading, as they had, to the severe dependency on alcohol, and the role that that intoxication played in this offence, there would be little or no further ambit for amelioration of moral culpability, or general or specific deterrence by applying Verdins' principles. There is no evidence that the offender's psychological condition means that imprisonment will weigh more heavily on him or will deteriorate because of his imprisonment.
[3] As to which, see R v Martin[2007] VSCA 291; (2007) 20 VR 14.
[4] I have considered the published sentencing statistics (Sentencing Snapshots No 85 and No. 110) and four sentences referred to by the prosecution: DPP v Samson-Rimoni [2010] VSC 111 (9/5), R v Gould [2007] VSC 419 (7½/5), DPP v McGill [2008] VSC 499 (7/6) and R v GM [2006] VSC 473 (9½/6). All of these four cases concerned stabbings but the circumstances otherwise vary significantly. Samson-Rimoni and GM concerned youthful offenders. With the exception of Samson-Rimoni, the offenders in the four cases had prior criminal histories involving violence. A significant distinction between the four sentences referred to and this case is the circumstances of the stabbing. In all of the four cases there was some level of violence and aggression emanating from the deceased, or from people with him, towards the offender. There is no suggestion of that here. Gould may be closest to these facts. It was also a case where both the offender and the deceased were very intoxicated. But the deceased there was the first to become aggressive and violent and, after being removed from the scene, sought out the offender to continue his confrontation with him. This, and the fact that the stab wound in Gould's case was to the shoulder, led the sentencing judge to characterise Gould's manslaughter as being at the "lower end of manslaughter cases involving the use of a weapon". The judge went on to observe:
"It is to be contrasted with cases where wounds to the central part of the chest or even deep wounds to the abdomen or back are inflicted".
The NSW manslaughter sentences are R v Jacqueline Barbara Doolan [2010] NSWSC 615; R v Harris [2007] NSWSC 1417; R v Terry John Hamshere [2005] NSWSC 1319; R v Jeffrey Dunn [2005] NSWSC 1231; R v Craig Brookes Dally [2000] NSWCCA 162; and R v Anne Yvonne Horton [1999] NSWSC 983.
DPP
Tate [2011] VSC 173
(2007) 16 VR 269
(2007) 16 VR 349
(2007) 20 VR 14