DPP v Va [2010] VSC 311

3 On 27 March 2009, you were staying with the deceased and the deceased's father - having broken up with your former de facto partner, Ms Newhara Walton, some two weeks earlier.

4 During the course of the afternoon of 27 March, you, the deceased and others were drinking and smoking cannabis at Mr Alexander's house. During this time, you, the deceased and another friend, Joseph Wilson, engaged in some play fighting which involved performing rugby tackles and punching each other's upper arms to test each other's pain thresholds. At some stage, you attempted a karate kick which was successfully deflected, and you crashed head and shoulders onto a concrete path in the backyard.

5 Not long after this, you went to your room and slept. It would appear that while you were sleeping, the deceased dared Mr Wilson to shave your head. This was carried out and when you woke, you became angry, saying that you had been disrespected.

6 Whilst the deceased tried to calm you, you became more angry - kicking a bathroom door and threatening to kill the deceased. Ms Walton and the deceased's fiancée, Mel Muriwai, were present and attempted to calm things down. Words were exchanged and you struck Ms Walton. Subsequently, you went into a bedroom and took possession of a sword that you had underneath the bed.

7 Thereafter, you left the house and went to your former address, where Ms Walton and your 1½ year old daughter resided. Ms Walton, your daughter and the deceased also went to the flat. Eventually, you went into the flat and became aggressive and started to accuse Ms Walton of having a relationship with the deceased, or something to do with him. Ms Walton again tried to calm you. You grabbed a television, saying that you wanted to smash it. You dropped the television on the ground and then stabbed it through the cabinet with the sword. You also used the sword to break a DVD player.

8 During this time, Ms Walton was trying to calm you. At some stage, you referred to Ms Walton by the name "Mel". This upset the deceased, who wanted to know why you were calling Ms Walton by Mel's name. The deceased then started to punch you and a physical altercation ensued. The deceased grabbed you by the throat, but subsequently let go.

9 You went into the kitchen and grabbed hold of three knives from a knife block and went outside. Ms Walton then locked the front door and tried to stop the deceased from leaving. Discussion ensued between Ms Walton and the deceased. Meanwhile, you looked through the window and thought that Ms Walton and the deceased had "something going on". You then punched the front door before going around to the rear of the flat, where you started throwing things at the windows. Against the wishes of Ms Walton, the deceased then went outside to sort it out with you. You met up in the street. There was an altercation between you. The deceased chased you. After that, there was a further physical altercation, during which you stabbed the deceased at least three times in the chest area, both the front and the back. I accept the evidence of Professor Ranson that the stab wound that passed through the bone at the inferior aspect of the sternum would have taken considerable force.

10 Subsequently, you came back to the flat and asked Ms Walton to call an ambulance and the police, telling her "I think I killed him". You then approached a motorist, who assisted you in taking the deceased to the Western General Hospital. En route, you told the motorist that the deceased had been grabbing you by the neck and you could not do anything to defend yourself, so you stabbed him.

11 On arrival at the hospital, the deceased was pronounced dead. You remained at the hospital and spoke to the police. Initially, you told them you did not know who stabbed the deceased, but almost immediately you recanted and said that you had stabbed him in self-defence.

12 I have referred to the consumption of alcohol and smoking of cannabis that occurred on the afternoon of 27 March. However, as your counsel submitted, you were not reported as having been affected by alcohol or drugs by either the police or a medical practitioner who examined you on the evening of 27 March. Further, it was put by your counsel that you do not seek to hide behind alcohol consumption as an excuse for your actions.

13 You were initially charged and committed to stand trial for murder. However, on 25 March 2010, the case resolved to a plea of guilty to one charge of unlawful and dangerous act manslaughter. You then pleaded guilty to this charge at the first opportunity on 30 March 2010.

14 I am required to sentence you for manslaughter. That is, I must sentence you on the basis that when you stabbed the deceased, you did not intend to kill him or cause him really serious injury. The manslaughter you committed was an unlawful dangerous act manslaughter, the unlawful and dangerous act being an assault which a reasonable person in your position would have realised would expose Mr Alexander to an appreciable risk of serious injury. I accept the prosecution submission that this is a serious case of manslaughter, involving as it does more than one stab wound to the chest area, and one of which was inflicted with considerable force.

15 Victim Impact Statements from the deceased's sister (Kylie Alexander), fiancée (Mel Muriwai) and father (Murray Alexander) were read to the Court. Ms Alexander read her statement and the prosecutor read the statements of Ms Muriwai and Mr Alexander. I have re-read the statements several times. They are moving statements which demonstrate the great loss suffered by the deceased's family. There is no doubt that the deceased was much loved and respected, and the loss to those closest to him is immense. Nothing I say, and no sentence I impose, can or will assuage their feelings of grief, anger and loss at what has occurred.

16 You are now 29 years of age, having been born in Cambodia or a camp in Thailand. You came to Australia with your parents in approximately 1984. Your family settled in Perth, where they remain. You are the oldest of six children, all of whom still reside in Western Australia. You attended school to Year 12, and half way through that year commenced a hospitality course. You had jobs in Western Australia, working as a bartender and drinks steward, working as a waiter, performing casual farming work and working at Perth's docks, loading and unloading containers.

17 In late 2007, you moved to Melbourne. You were in continuous employment. I accept that you had, before this incident, a stable family history and a good work ethic. You have been in custody since the night of Mr Alexander's death. I accept that the activities you have engaged in whilst in custody, together with your previous history, all suggest that you have good prospects for rehabilitation.

18 You have four prior convictions for offences committed in Perth between 2000 and 2004. Three of these are motor vehicle offences, which I accept have no real relevance so far as this proceeding is concerned. Of more concern is the prior conviction for possessing a weapon in 2000, for which you were convicted and fined $150. However, I was told by your counsel that this was a minor matter involving a fishing pole. The prosecutor accepted that this was likely to be so, having regard to the level of the fine. In the circumstances, I am bound to conclude that this prior conviction also has little (if any) relevance.

19 I have considered the references tendered on your behalf. I accept that they underscore the fact that offending on the level of seriousness of this offence is out of your general character. I have also had regard to the report of Dr Cidoni, which suggests that there are no underlying pathological issues which might interfere with your rehabilitation and reintegration back into society in due course.

20 It was submitted on your behalf that you demonstrated remorse for your actions by telling Ms Walton that you thought you had killed the deceased, asking Ms Walton to call police and an ambulance, attending on the deceased and getting him to hospital, staying at the hospital to wait for police and only prevaricating for a very short period before taking responsibility. Further, evidence was led of remorse you expressed to your friend, Mr Luu. I accept that you have shown some remorse. I would not describe it as considerable. At times, it appears to have been intertwined with not insignificant regret for the position in which you now find yourself. Such regret is, of course, not remorse. Nevertheless, the level of remorse you have shown is a matter which must be taken into account.

21 The matters to which I have referred concerning your stable family history, your work ethic, your character and your conduct whilst in custody, tell in your favour. Nevertheless, as I have already said, this was a serious example of manslaughter.

22 As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:

(a) to punish the offender to an extent and in a manner which is just in all the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;

(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and

(e) to protect the community from the offender.[1]

23 Taking all of the matters to which I have referred into account, and having due regard to the principles of parsimony and proportionality, I sentence you to 11 year's imprisonment for the manslaughter of Quinton Alexander and I fix a non-parole period of 8 years. If you had not pleaded guilty, I would have sentenced you to period of 13 years' imprisonment with a non-parole period of 10 years.

24 I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 474 days in custody, and I direct that this fact be noted in the records of the Court. I will also make the disposal order and the order sought under s 464ZF(2) of the Crimes Act for the taking of a forensic sample.

[1] Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.