R v Bourbaud [2011] VSC 374

2 On 26 July 2011, I heard submissions on behalf of the Director of Public Prosecutions and submissions from your counsel, Mr Stuart, as to the sentence that should be imposed upon you and it is now my responsibility to sentence you for the offence of manslaughter.

3 The incident which led to the death of Willy Tiotala occurred on 8 July 2009 in the vicinity of premises at 1 Mullett Street Hastings, where you resided with the witness Chris Mitchell.

4 You and Willy Tiotala had apparently known each other for some time before July 2009 when these incidents occurred, resulting in Tiotala's death. You moved in to Mitchell's flat at 1 Mullett Street about three or four months before the incident occurred.

5 On 8 July 2009, you had been at the flat all day and your girlfriend, Brooke Lowe, had arrived at about 3.30pm. During the time that she was there, the evidence suggested that Willy Tiotala had also visited you there. The events of the afternoon seem to include the following. First, Willy Tiotala visited the flat and you and he commenced to drink. At some stage after that, you and Tiotala left the flat to get more alcohol and returned with a slab of beer. Some time after that there was some form of argument between you and Willy Tiotala. At about 10.30pm your parents arrived with a friend of theirs, Scott Smith. It would appear that both your parents and Smith were significantly affected by alcohol, having been at hotels in the immediate area before arriving at your flat.

6 Willy Tiotala was present when your parents were there and, during that time, there was again some form of argument which resulted in Tiotala being told to leave the premises. He did so and went to his unit which was upstairs.

7 Some time later in the evening you and Scott Smith went outside and yelled out to Tiotala who was, by this stage, in bed to come downstairs and fight. He did get up and go downstairs and shortly afterwards, a fight began. The fight began inside your flat and then moved outside. That fight involved yourself, Willy Tiotala, your father Max Bourbaud, Scott Smith and to some degree your mother Francie Bourbaud. At some stage during the fight when it had moved outside and close to the fence, you disengaged yourself from it and went back inside and obtained a large kitchen knife. You returned and inflicted a single stab wound on Willy Tiotala resulting in his death. At the time you did that I am satisfied that your father and Smith were getting the better of Tiotala and that he was being effectively restrained by them with some assistance from your mother.

8 It is known from the autopsy that Willy Tiotala weighed 91kg and was 175cm tall. The result of you stabbing Tiotala was that the blade of the knife remained in his body after the knife handle broke off, and was later removed from him during medical treatment. The blade you used to stab Tiotala was 20cm in length and 4½ cm in width. The stab wound was a substantial wound with the blade entering Tiotala's body from the back, passing through the bottom part of the 9th rib and breaking some part of the bone off in that area, then continuing into the lower lobe of the lung and through the diaphragm and liver. The wound was 19cm deep. Having stabbed Tiotala you immediately left the scene and went to your parents' house on foot.

9 You disposed of what was left of the knife and when you reached your parents' house your clothes were put in the washing machine and washed. In my opinion, the objective seriousness of this offence of unlawful and dangerous act manslaughter is very high.

10 After your arrest by police you were interviewed by them on 9 July 2009. During that interview, although you were reluctant to answer some questions about the incident, you did accept that you stabbed Tiotala and expressed regret for what you had done. You gave answers which suggested that the reason behind this stabbing, despite your high level of intoxication, was that you wanted to teach Tiotala some kind of a lesson in relation to the way that he had treated you in the past.

11 You are to be sentenced on the basis that, in the way in which this trial was conducted, the jury was not satisfied beyond reasonable doubt that at the time that you stabbed Willy Tiotala you intended to kill him or cause him really serious injury. It also follows that the jury rejected any notion of self-defence or were satisfied beyond reasonable doubt that you were not acting in self-defence.

12 Kerry Potter is the partner of the deceased man, Willy Tiotala. Ms Potter gave evidence during the trial and, on 21 July 2011, she prepared a Victim Impact Statement which sets out the consequences of the killing of Willy Tiotala, as she perceives them. The trauma that she has suffered as a result of what occurred and the circumstances in which it occurred was obvious to me and can be seen from a reading of the Victim Impact Statement. In addition to Ms Potter, there are four children from her relationship with Willy Tiotala. It appears that each of them is suffering as a result of the death of their father.

13 Ms Potter and Willy Tiotala were in a relationship for 14 years and Ms Potter was clearly committed to that relationship and worked hard at making it successful.

14 There is nothing that this Court can say or do which will improve this family's current situation, or address the loss that Ms Potter and her children have suffered, but I have taken the contents of the Victim Impact Statement into account in determining the sentence that I should impose on you.

15 According to the material that was put before me during the course of the plea made on your behalf by Mr Stuart of counsel, you are 22 years of age, having been born on 24 December 1988. You have supportive parents, both of whom were witnesses during your trial, and you have two siblings. According to the report prepared in relation to your circumstances by Dr Michelle Wauchope, your education finished part way through Year 7. It appears that you have always had trouble with learning and from the age of 13 onwards you began to use alcohol, cannabis, speed and other drugs.

16 Your inability to learn was identified by Dr Wauchope and she has explained in her report the way in which your difficult circumstances developed from the age of 13 onwards, including the learning difficulties and resulting limited education, combined with your drinking and drug use.

17 The result of your circumstances was that you began to commit offences and your prior criminal history reveals the following:

(a) That the first notation on your record was of theft in June 2002, and later offences including intentionally causing injury, assaults (including with a weapon, with an instrument and by kicking), making a threat to kill, criminal damage, resisting police, intentionally destroying property, carrying a dangerous article, burglary, various other counts of theft, numerous traffic offences including tampering with a motor vehicle, and driving whilst unlicensed, and a failure to answer bail.

(b) In each case, Good Behaviour Bonds, Probation periods or Youth Supervision Orders were imposed, including some requiring reporting to the local juvenile justice unit. On some occasions you were required to pay a fine or undertake community service.

(c) You have also been required to attend an anger management program and a training education program or pre-apprenticeship, and to submit to medical, psychological or psychiatric assessment and treatment in relation to your offending behaviour.

18 You have been in custody, in effect, since your arrest in relation to these matters. Most of that time has been extremely difficult and has involved you being held in various management units at both Port Phillip and Barwon Prison. I am informed that you have spent six months in total in management units and that in the opinion of the prison authorities, even in those management units, there was still some risk to you at Port Phillip Prison.

19 It was noted during your plea that your time in management units was the result, in part, of a risk that other prisoners would seek to harm you. However, I was also told of certain incidents where your own behaviour led to you being subject to that management regime. In particular, I was told that while you were at the MRC in May 2010, you tested positive to a banned substance. You were also, on another occasion, found to have received a small amount of a banned substance under the postage stamp of a letter, from a contact outside the prison.

20 Another incident that was raised during your plea concerned a period in July 2010 where you spent three days in protection. You clearly objected to being held in protection and you expressed that objection by climbing onto the roof of the prison and making various demands of the prison guards. This incident, and the incidents involving banned substances whilst in prison, posed a security risk at the prison and led to you being required to remain in the management units at MRC and then later at Barwon and Port Phillip prisons.

21 If your prospects for rehabilitation and improving yourself were being considered in that period, up until and including December 2010, as I commented to your counsel during the course of the plea, those prospects would have been regarded as very poor indeed. You obviously struggled substantially to deal with being in custody and you misbehaved and reacted to those circumstances in a way which demonstrated your inability to cope with them.

22 On 24 December 2010, you were placed in the Youth Unit at Port Phillip Prison under the supervision of Ms Anne Hooker who was a Youth Development Officer in that unit. She is also the manager of the Youth Unit. Ms Hooker gave evidence during the course of the plea and described in a most impressive way the manner in which your behaviour has altered. According to her evidence, your attitude has changed substantially and you have sought out programs to participate in over the time that you have been there.

23 A bundle of documents provided to me during the course of your plea includes notification from Port Phillip Prison that you have completed programs including "Youth, Drugs and Anger", "Drug Education", "Intensive Drug Program", and also a "Staying Safe in the Community Program". It also includes comments from program providers that describe you as a cooperative and thoughtful participant who makes a positive contribution to group discussions.

24 Ms Hooker now describes you as a model prisoner and you are apparently being considered for a role as a mentor for much younger prisoners, having assisted one particular 16 year old prisoner to be released from his management plan.

25 According to Ms Hooker, you are now a laundry billet which involves you working from 8.30am until 3.00pm seven days a week doing the laundry for the entire unit. She said you are respectful and you are working hard. Since December 2010, you have participated in a number of programs including the small business program which is based on a model business involving the production of screen printed T-shirts which has raised something of the order of $140,000 for charity over the last six years.

26 I was impressed with her evidence and, as I said at the time, I consider that people such as Ms Hooker perform a role for people in custody which is invaluable and indispensable. The result is that your rehabilitation would seem to be well under way.

27 As I have earlier mentioned, a report was prepared for the Court by Dr Michelle Wauchope on 11 July 2011 based on interviews with you in May and June 2011. She refers to your significant intellectual and learning difficulties and explains that as a result of those circumstances, you are likely to deal with situations that are before you somewhat impulsively. She is also of the opinion that you are suffering from quite severe symptoms of depression and anxiety which, I am told, will be able to be treated in your present custodial circumstances after you have been sentenced, but which are obviously difficult for you and will require further treatment upon your release.

28 It appears not to be in issue that you are remorseful for what has occurred and for the fact that you killed Willy Tiotala. This is evident in the comments contained in the character references tendered on your behalf during the plea. Dr Michelle Wauchope also refers to the fact that you have shown remorse and a desire to make changes to your life. As Mr Stuart submitted, in the course of your record of interview you made several expressions of regret for what had occurred and I accept that those expressions of regret were genuine.

29 The trial over which I presided was the third trial which you had faced, as the earlier two had to be terminated for various reasons. Those first two trials occurred at the end of 2010, and on 29 November 2010 I am told that you offered to plead guilty to either manslaughter or defensive homicide. It is submitted on your behalf that I should therefore deal with you as if you had pleaded guilty and there was no trial. In my opinion there is some merit in that submission. It does not seem to me that having offered to plead to the offence for which you have been found guilty by the jury you can be disadvantaged by the fact that the offer was rejected and you therefore conducted your trial. The trial was primarily conducted on the basis of the charge of murder, the defence to which was either a lack of intent or self-defence. It followed inevitably that self-defence would be raised as an issue on the alternative count of manslaughter. Clearly your willingness to plead guilty included an element on your behalf of both remorse and a willingness to take responsibility for what you have done and I take that into account as though you were being dealt with on a plea of guilty had the Crown accepted your offer to plead guilty to manslaughter.

30 The law says that rehabilitation of a young offender such as yourself, where it is possible, is one of the great objectives of the criminal law. However, it is not the only consideration; there are other matters that I must also take into account. There are cases where the seriousness of the offending must give way to considerations of youth. In this case, your rehabilitation is an important consideration. For a young man of age 22 you have a most difficult and troublesome background, but you would appear to be on the brink of making the kind of changes to your life that are necessary to avoid you getting into further trouble and that, given your age, is something that the Court should encourage.

31 I must emphasise at this stage that your youth has been a key consideration in sentencing you for this crime. When you have served this sentence, you will be aged in your mid to late 20s. This period of incarceration represents what might well be your last chance to address the impulsive decision making and damaging social habits that Dr Wauchope identified in her report. Any further offending by you might very well be met with a sentence that will focus less on your rehabilitation and more on punishment and deterrence.

32 On the count of manslaughter, you will be imprisoned for a period of nine years. I direct that you serve a period of six years before being eligible to apply for parole. I declare your pre-sentence detention is 762 days, not including today, and I direct that that fact be entered in the records of the Court and that that period be reckoned as having been served as part of your sentence.

33 I have already made the orders for forfeiture and retention that the Crown have requested.

34 Given that this matter went to trial, I am not required by the Sentencing Act 1991 to state the sentence that you would have received had you not made an offer to plead guilty at any stage prior to that trial. However, I note for the record that if you had not made such an offer, I would have sentenced you to eleven years imprisonment, with a non-parole period of eight years.