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[2006] VSC 374
Supreme Court of Victoria
2006-10-18
Kellam J
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Manslaughter by stabbing - Unlawful and dangerous act - Age of offender at time of offence 15 years and 4 months - Significant intellectual
disability - Remorse - Importance of rehabilitation - Sentence 5 years with non-parole period of 2 1/2 years.
1 You have been convicted after trial of one count of manslaughter. This crime arises out of circumstances which took place at Millgrove in Victoria in the early morning of 11 May 2005. Before turning to those precise circumstances, it is appropriate to describe something of your history which led up to the events in question and in particular the death of your victim, Ken Boon.
2 You were born in Moe on 24 January 1990. Your father was one KMB. At the time of your birth your parents were separated but then later reconciled. However, the relationship ended when you were about two or three years of age by which time you had moved to live with your mother in Moe. You had little contact with your father, although you did live with him for a period of about nine months when you were approximately seven years of age. When you were approximately four years of age your mother formed a relationship with one SM and as a result of this relationship your brother Benjamin was born in February of 1995. At about this time SM received a sentence of imprisonment for sexual offence against minors. After his release from custody in 1997 your mother and SM lived together briefly.
3 In approximately 1996 you were assessed as being suitable to attend a special school in Moe. This assessment arose by reason of your learning difficulties which were obvious even at that young age. Soon thereafter you went to live with your father in Seymour and attended school there for a short period of time. However, in 1999 you and your mother and brother returned to Moe and you were referred to the Baringa Special School. Thereafter, your mother formed a relationship with and married one SS by whom she has had a daughter. It would appear that the marriage of your mother to SS was a stabilising influence upon you but for a short period of time only. However, you met up with his nephew, CM, who was some years older than you, and you commenced to "chrome" with him. Soon thereafter and whilst chroming, CM ran in front of a car and was killed. From the age of 12 years and particularly through your chroming activities, you came to the attention of the Department of Human Services regularly and received assistance from a number of services including Anglicare and Berry Street Family Services. You were suspended from Baringa Special School on numerous occasions between February 2003 and January 2005. You spent most days thereafter chroming, usually on your own and under the house where you lived with your mother.
4 Your mother had a family friend, Ken Boon, with whom you came to be acquainted in the period of time leading up to 11 May 2005. He was aged 59 years at the time. You had only occasional contact with him until several weeks prior to 11 May 2005. On 10 May 2005 you travelled with Ken Boon to his property in Millgrove. Ken Boon had decided to sell the property and required assistance from you to clean the premises and to remove rubbish from it. You travelled to Millgrove and assisted with rubbish removal throughout the course of the day and evening of 10 May 2005. It was then decided by Boon that you and he should stay overnight at his Millgrove house.
5 In the course of the evening of 10 May 2005, you commenced chroming. The evidence before me is that you had some months, and perhaps up to six months before, ceased to engage in chroming. However, you recommenced this habit on the evening that you spent with Ken Boon. You told police that at some stage Ken Boon went to bed but that you stayed up chroming. You told police that subsequently he got up. You told police that he produced his penis and urinated in a fireplace and asked you whether you would like to play with his penis. You said you declined this offer. You told police that you then left the house and went to a caravan which was outside and locked yourself in the caravan. You said that this was at approximately 2.00 in the morning. You then went to sleep.
6 You arose at about 6.30 the next morning, left the caravan, went into the house occupied by Ken Boon and took out of the drawer a serrated kitchen knife with which you stabbed him. It appears to be clear that at that time he was sleeping in his bedroom. A knife mark was later found to have penetrated the blanket and sheet which covered Ken Boon. The knife entered a region of the body of Mr Boon which was above his abdominal cavity but below his rib cage.
7 Professor Ransom gave evidence on your trial that for a knife to penetrate through fabric and into that area of the body required force well beyond minor or trivial force. The stab wound penetrated the chest and the lower part of the heart, causing bleeding around the heart with the consequence that Mr Boon died. It is apparent that Mr Boon was able to rise from his bed and walk a distance of some metres before finally collapsing. It would appear that having so stabbed him, you then left the premises. You took Ken Boon's car with the intention of driving home to Moe. However, it is apparent that you got lost because many hours later and in the mid afternoon of 12 May 2005, you were found walking along the Woods Point Road. You had lost control of the car which you were driving and it had partially left the roadway.
8 You were picked up by a timber worker who took you to the Marysville Police Station. You were observed by him to have a substance around your mouth and around the top of your chin. An independent person who is a retired psychiatric nurse was called to the police station on the evening of 11 May 2005. She observed you to be dishevelled. She observed you to have a lot of blue paint around your mouth and on your clothes and some on your legs. She observed you to be withdrawn and confused. She remained with you throughout the time of your interview with the police. At about 10.00pm you left the police station after the police had made arrangements to transfer you back to your home in Moe. Similar observations were made by a senior constable at the Marysville Police Station. He observed paint on your face and stated that you were confused and answering questions by grunts. I heard evidence in the course of your trial to the effect that chroming has on cognitive and mental processing. The observations of those who saw you late on 11 May 2005 were consistent with that evidence. It should be noted that to both the retired psychiatric nurse and the senior constable you stated that the deceased had spoken to you in a sexual way. Although I cannot be satisfied one way or the other as to whether this occurred, or as to whether in your drug intoxicated state you misinterpreted an entirely innocent or joking act or remark on the part of Mr Boon, it is relevant to observe that there is material before me to support the fact that you have been the victim of sexual abuse, and it may well be that that partly explains your response to what might otherwise have been a matter of little consequence to others without that background. Whatever was the cause, it appears to be clear, as you later told Dr Lester Walton, that at the time you stabbed Mr Boon you were angry with him.
9 It should be observed that the prosecution saw fit to try you on a charge of murder. The jury found you not guilty of this charge. The issue of provocation by reason of the sexual words allegedly used by the deceased and his actions, was a matter for consideration by the jury. However, it appears to me to be highly probable that the jury did not come to consider the issue of provocation in any detail, because the prosecution had not satisfied them beyond reasonable doubt that you had an intention to kill or to cause really serious injury. Being satisfied of this matter, in my view, the conviction of manslaughter is based upon the commission by you of an unlawful and dangerous act. It is appropriate to observe also that in the course of your trial there was no suggestion put by your counsel, other than that if the jury were not satisfied beyond reasonable doubt that you intended to kill the deceased, then you accepted that his death was caused by an unlawful and dangerous act. That is, that at all material times you have accepted that you were guilty of the crime of manslaughter.
10 This is a most serious offence. Ken Boon lost his life in consequence of your act of stabbing him. Although no victim impact statement was filed before me, I have no doubt whatsoever that his death has caused and will continue to cause great grief to his family, his partner and to those who cared for him.
11 However, as has been pointed out by your counsel there are a number of significant mitigating factors. The first of these is the fact of your age. You were less than 15 years and four months of age at the time of the death of Ken Boon.
12 A second matter is your remorse. You told police on several occasions you did not wish to kill Ken Boon. At the end of your record of interview you said, "I would like to say I am sorry". Having listened to the taped interview several times I accept this as a genuine statement of your remorse. I accept also that you were prepared to plead guilty to manslaughter.
13 The second matter of great significance is that you are a person who has been assessed as being mildly intellectually disabled. IQ testing took place in 2001 and you were then found to have an IQ of 67. Neuropsychological tests conducted by Jeffrey Cummins in September of 2006 established a full scale IQ of 71. It should be noted that Mr Cummins considered that as a result of schooling with which you have been provided whilst on remand, your full scale IQ, verbal IQ and performance IQ inevitably have increased significantly. Nevertheless, you clearly have an intellectual disability of some significance.
14 It is apparent on all of the material before me that your childhood circumstances were those of considerable deprivation. An extensive amount of material obtained from a variety of sources, including the Children's Court, the Department of Human Services and the Baringa School have been placed before me. You were convicted by the Children's Court on 7 January 2004 of a number of dishonesty offences. You were aged 13 years at the time.
15 However, it is apparent that the authorities had significant concerns about your welfare many years prior to the above named attendance at the Children's Court. Indeed, concern about your academic and social development appears to have commenced when you were six years of age when you were assessed by a psychologist. You were again assessed by a psychologist when you were 11 years of age. You were then in grade 5. You were then receiving funding because of intellectual disability. It is clear that over a period of time at the Baringa Special School considerable difficulty was experienced in controlling you. The materials before me are to the effect that on regular occasions and whilst you were aged 13 and 14 you were found by police, and others, to be engaged in chroming. Your mother was diagnosed as suffering from schizophrenia some years ago, and the materials put before me establish that the severity of her illness has had a profound effect upon you and your family. A case note prepared for the Children's Court in September of 2003 contains this statement:
"It is likely that the chaos in his environment and the instability of his situation is what leads him to chrome and to search for a way to ease some of the emotional distress which he experiences. It is also likely that [BPT] may be experiencing some confusion and anxiety as a result of the death of his cousin .... [BPT] followed [his stepfather] to the accident site and was witness to [his cousin's] body and the associated anguish. This must have been a frightening encounter for him and may also be contributing to his need to manage his emotions using chrome."
16 Your solicitors arranged for you to be examined by a psychiatrist, Dr Lester Walton, in May of this year. He was unable to establish any obvious mental illness on your part but he concluded that you are intellectually disabled and he suggested that an MRI scan be performed. I have been provided with a copy of the scan which suggests that there are normal cerebral appearances and thus it would appear at this stage that you have not suffered any gross organic brain damage in consequence of your chroming activities. In addition to those reports, your solicitors obtained a report from psychologist Jeffrey Cummins. Mr Cummins has seen you on two separate occasions this year and has undertaken neuropsychological testing of you. He also obtained a detailed history of your background. It should be noted that your father committed suicide by hanging earlier this year. As stated above and subsequent to the relationship your mother had with your father she formed a relationship with one SM. He is a person who has spent some considerable part of his adult life in prison, some of which relates to sexual assault matters. Thereafter, your mother took up a relationship with SS who, it would appear, is a heavy drinker who has been "in and out of gaol for most of his life".
17 Mr Cummins saw you at the Melbourne Juvenile Justice Centre, you, of course, having been detained there since your arrest in May of 2005. Mr Cummins enquired of you whether you had any hobbies or interests and you told him that you had developed an interest in cabinet making and that you were learning how to use machinery. You then stated to him spontaneously, "I like general education in here. I'm doing maths and English and I'm concentrating more here than I ever did when I was at school and my writing's improving. I get on really well with my 'Pop' [paternal grandfather] who lives in Brunsick and he's a forklift driver and he visits me most weekends. I've told him when I get out of here I want to move to Sydney and start a new life."
18 In this regard there is a testimonial before me from the brother of your deceased father. He has offered to provide a safe and stable home in which you are welcome to reside in New South Wales. He states that he is about to commence a builder's course, has one year to go in his carpentry course and would be happy to teach you the fundamentals of the trade. He states that all of your family in Sydney have stable home lives, are permanently employed and care for your well-being. He himself is in a de facto relationship and has a 15 month old son. Accordingly, and notwithstanding your chaotic family life, it is apparent that there are some people who care for you.
19 The testing undertaken by Mr Cummins revealed a full scale IQ of 71. He said, "It must be emphasised as a result of schooling he has been provided whilst on remand, his full scale IQ and verbal IQ and performance IQ would inevitably have increased significantly - and perhaps by as many as five or seven IQ points. In this regard I also note he has enjoyed his schooling at MJJC and the discipline associated with his schooling. I also note the staff at MJJC have described him as a well-behaved client and someone who is clearly benefiting from his schooling."
20 I requested a report be provided by the Melbourne Juvenile Justice Centre. That report, dated 12 October 2006, has been produced before me. The report notes that you are involved in deciding menus, food ordering, cooking meals, kitchen duties and general cleanliness of the remand area in which you have been held. It is said that you are a hygienic young man and your room is kept in an orderly, clean state. Whilst in custody awaiting your trial you have attended and completed many TAFE modules, including hospitality, automotive, welding, woodwork, general education, jewellery making, computers, music and art. It is noted that you have "significant sporting prowess". In this regard I observe that Mr Cummins obtained a history from you that you are attending general education at the Juvenile Justice Centre which has given you an opportunity to access one on one contact and has led to a significant improvement in your overall literacy and numeracy. The summary provided by the Juvenile Justice Centre is as follows:
"[BTP] is a likeable, vulnerable young man with an intellectual disability and limited social skills. He thrives in a situation with structure and routine and is able to manage relationships with his peers and staff without major difficulty. He is not particularly outgoing and if feeling threatened or confused he can withdraw for significant periods of time. [BTP] also has a good sense of humour and fun and appears to have a child-like outlook on every day situations.
[BTP] has had a chaotic family life, with exposure to significant conflict between family members, neglect and reported exposure to adult sex offenders. He has also had to deal with the disjointed relationships within the family, his mother's mental illness and the previous and current involvement of some family members in the criminal justice system."
21 The report states further that you have presented no management issue whilst in custody and that you are popular with your peers. It appears to me to be clear that the 15 months that you have spent in the structured environment of the Melbourne Juvenile Justice Centre has been of considerable assistance to you in terms of giving you some stability and an opportunity to consider a life outside that of chroming. Indeed, on all the material before me that period of 15 months appears to be the most stable period yet experienced by you in your life.
22 Your counsel has submitted on this basis that the appropriate sentence is a youth training centre order. The issues which arise in terms of sentencing you, have been set out clearly in R v Mills.[1] That decision establishes the following propositions:
(a) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(b) In the case of a youthful offender rehabilitation is usually far more important that general deterrence. This is because punishment may in fact lead to further offending.
(c) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality.
23 All of those matters are powerful factors in my consideration of the appropriate course to be followed in this case. In addition to those factors, there is the question of your not insignificant intellectual disability. In R v Ulla,[2] a decision of the Court of Appeal, establishes the proposition that although an intellectual disability does not mean that general deterrence has no application, that sentencing principle does require to be moderated sensibly in such circumstances.
24 Accordingly, it is apparent that in addition to matters personal to you such as the opportunity for you to undertake rehabilitation, which is a primary consideration, and specific deterrence, the issues of general deterrence and appropriate and just punishment nevertheless remain as factors which are relevant to the sentencing process.
25 I have given careful consideration to the arguments advanced on your behalf by your counsel, Mr Taft. In the end result, however, I conclude that in all the circumstances the only appropriate sentence is a sentence of imprisonment. The maximum period for which I could sentence you to be detained in a youth training centre would be three years. Whilst it is true that the period could perhaps be increased in effect by making an order under s.35(1) of the Sentencing Act that your pre-sentence detention not be reckoned as a period of detention already served under the sentence, it does not appear to me to be necessarily in the interest of your rehabilitation, nor to comply appropriately with other sentencing principles to make such an order.
26 Balancing as best as I am able the competing sentencing considerations laid down in the Sentencing Act and giving full weight to your young age, your intellectual disability, your apparent remorse and your prospects of rehabilitation, I have concluded that the nature and gravity of your offence, together with the need for punishment and deterrence, and just punishment so far as those principles are relevant, requires the imposition of a term of imprisonment. I sentence you to 5 years' imprisonment.
27 However, having regard to your youth and your prospects of rehabilitation which will require support both during any period of detention and parole, I consider it is proper to direct that there be a considerably shorter minimum term than I would usually direct. As I said, with a young offender, and whilst giving full respect to the seriousness of the offence and the tragedy of the death of the victim, the law emphasises the importance of rehabilitation as a central element.
28 I fix a period of two years and six months as the period you must serve before becoming eligible for parole. This minimum term will give the Adult Parole Board the opportunity to carefully structure a release program which may well involve Statewide Forensic assistance possibly in terms of residential accommodation upon parole. Of course it will be a matter entirely for the Board to consider whether your rehabilitation has reached such a stage that it is appropriate for you to be released at the end of your non-parole period. I declare that the period to be reckoned as already served under the sentence is 524 days. I direct that there be noted in the records of the Court the fact that such declaration has been made and its details. I recommend to the Adult Parole Board that you be transferred immediately to serve your sentence at the Youth Training Centre where you presently are, pursuant to s.244(1) of the Children and Young Person's Act 1989. Furthermore, I recommend to the Adult Parole Board that you remain at a youth training centre until you are eligible for parole. This should mean that you will be eligible for parole without being imprisoned in an adult prison and thus full attention can be given to the issue of rehabilitation. In this regard I see no community interest served whatsoever in your being incarcerated in an adult prison where you may well be the subject of manipulation and exploitation by older and more mature criminals. The community interest is served by your continuing down the rehabilitative path you have taken in Melbourne Juvenile Justice Centre since May 2005.
29 I request the Secretary to the Department of Justice forthwith to prepare a s.244(1) report so that the Adult Parole Board can consider a decision that you be transferred to where you presently are situated under this sentence.
R
B T P [2006] VSC 374