R v Edwards-Norris [2011] VSC 122

2 As indicated both you and the deceased man are said to have an extremely deprived background. Kevin Dow being one of 18 children and significantly under-educated. He was made a ward of the State at 13 and spent the rest of his youth in and out of various boys homes. He became a father to twin daughters at about the age of 18 and he had little contact with that family over a lengthy period of time.

3 He had a lengthy history relating to dishonesty and violence which appears to relate to his very long-term and deep-seated addiction to drugs. Your mother was a heroin addict and the partner of Kevin Dow. As indicated she had been his partner for some 19 years off and on. You have what can only be described as a complicated family history.

4 You are the second child of the relationship between your mother, Cheryl Norris, and a man by the name of David Edwards - also an Aboriginal man. You have an elder sister and two half-siblings. You had lived in various places during your developing years, including with your uncle, Eric Edwards (known as Mick), your father and your mother as well as sisters and departmental care. You were at the time of this killing present in your mother's home but you were not in fact living there on a full-time basis but had returned to the house against your mother's wishes.

5 At the time that Kevin Dow died you had been in a relationship with Rhiannon Apkarian for some months and she was approximately eight weeks pregnant at the time. There appeared to be ongoing conflict between yourself, your mother and Ms Apkarian about the pregnancy and matters relating to the pregnancy in the period leading up to this offending. At the time of those arguments, you had been living with your mother, Kevin Dow, Rhiannon Apkarian and your half-brother, Terrick, at a flat in the Philips Court Estate in Northcote.

6 As a result of an argument with your mother, you were told to leave her flat and not to return. That occurred on 21 October 2009 and you went, apparently, to stay with your sister in Preston.

7 On Saturday 24 October 2009, Kevin Dow, your mother and Ms Apkarian were together drinking and placing bets on the Cox Plate. Ms Apkarian's brother joined the group that day and was told of her pregnancy and a small celebration then occurred. Ms Apkarian at some stage left that celebration and went to see you at your sister's home in Preston, where she remained into the early hours of Sunday 25 October, at which time she returned to Northcote. Eventually, you also returned there and you and Ms Apkarian went to sleep in your bedroom.

8 On the morning of 25 October, your mother noticed that your bedroom door was closed and she opened the door and found you in bed with Ms Apkarian and she proceeded to tell you off for being at the flat. A commotion ensued and the deceased man asked you to leave the flat. There was some argument between yourself and Ms Apkarian about some money. This appeared to relate to the money that Ms Apkarian's brother had given her to get food at McDonalds. The sum involved was about $10. This appeared to upset Mr Dow who said things to you about your conduct and your language and ultimately a struggle between the two of your occurred. This appeared to start in the bedroom and went out through the hall and into the lounge living area. Your mother, at some point, which would appear to have been in the bedroom, hit you over the head with a glass ashtray. A bong that was in the bedroom area was broken and ultimately you cut your foot and it would appear this was as a result of standing on some form of glass.

9 The deceased ended up on the floor, either as a result of a direct blow or a combination of blows received while slipping and falling on the wet, and he ended on his back. It was whilst in this position that you stomped on his head at least once.

10 The Crown are unable to say how many times you did that, other than to say at least once. At the end of that stomping you spat on the deceased.

11 You then obtained clothes and shoes and left the flat. The deceased was taken to the Royal Melbourne Hospital. CT scans revealed a large acute subdural haemorrhage in the right hemisphere as well as a further small acute subdural haemorrhage and the midline shift of some 17mm to the left. Despite active intervention to alleviate the problems, the accused's condition deteriorated and his life support system was turned off and he died on 27 October 2009. A post-mortem examination showed that there were two displaced fractures to the jaw, bruising to the back of the head and shoulders as well as the subdural haemorrhage. The cause of death being head injury as a result of blunt trauma.

12 Upon leaving the flat, you met with Bradley Hill and you informed him that you had hit the deceased twice knocking him out and that your mother was angry and hit you over the head with something that might have been an ashtray. Later when staying with your friend Scott Dudley, the two of your went to the Austin Hospital to seek treatment for the injury to your foot and you identified yourself at the hospital as being your brother, Terrick Edwards-Norris. Although the police were looking for you, they were unable to locate you until you surrendered yourself as a result of negotiations on 2 November 2009. You made a no-comment record of interview, apart from the answer to two questions where you said that you didn't mean to do what you had and that you didn't wish to kill the deceased.

13 In relation to this matter, two victim impact statements were tendered. The first being from Craig Dow, one of the brothers of the deceased. The second from Kim Clarke on behalf of the Dow family. Each of these were long and detailed particularly the one by Kim Clarke and they provided me with clear indications of who Kevin Dow was, the type of man he was and the impact that he had on the lives of his brothers, sisters, nephews, nieces, children, grandfather, cousin, friend - each of those was heart-felt and does help the court in having some understanding of the long-term consequences that the death of Kevin will have upon the great variety of people in his life. As should be understood, whilst all of this is important and will be taken into consideration when formulating the sentence, the sentence that is to be imposed is not a reflection of the value of Kevin Dow's life. A sentence is imposed for multiple reasons, all of which are constrained by the law and Parliament. The worth of Kevin Dow cannot be measured. Like every other person in this country, his life is invaluable to his family and all that loved him. I want to make it clear that the sentence that I impose upon you Nakkara Edwards-Norris is a sentence to punish you for your offending, not to indicate to anyone else what I considered Kevin Dow's life to be worth.

14 The fact that Kevin Dow was, as his brother Craig put it "No angel in life due to his lifestyle and choices in life - drugs and prison" does not impact upon his worth as a human being or the value that we as a community place upon his life.

15 Like Nakkara Edward-Norris, Kevin Dow did not have the opportunities, the privileges or the necessary support to be able to make something of his life and that is part of the tragedy of Kevin Dow's life as much as it is the tragedy of Nakkara Edwards-Norris' life.

16 You are the child of David Edwards and Cheryl Norris, each of whom had other children by former partners before they came together and had your sister Nindara and you. Both your parents came from broken homes, as did Kevin Dow. Your mother Cheryl Norris and Kevin Dow were childhood friends and you were only two years old when Cheryl Norris and Kevin Dow commenced a relationship in late 1990. Your half brother Terrick was born in 1991. Your father David Edwards at that stage was back in Balranald in New South Wales. Kevin Dow was in and out of jail as a result of his heroin addiction. Your mother Cheryl Norris also became a heroin addict.

17 The Department of Health and Community Services became involved with your family in 1992, in February, when your mother went to the police complaining about Kevin having hit Nindara - your older sister. The history with the Department of Health and Community Services is detailed in a folder of documents, which are extracts from the files of DHS, and which I have read. As a result in June 1992 you and your sister went to reside with your father, David Edwards, up on the mission in a tin hut. Your father had a new partner who had four children of her own. Your step-mother was apparently cruel to both of you and would lock you in an abandoned church if you were unruly. Your father and stepmother were perceived as physically and emotionally abusing you and your sister and you returned to live with your mother Cheryl in August of 1992.

18 Your mother was on a methadone program but lapsing in and out of heroin addiction. Kevin Dow, the deceased, was in jail and by mid-1993 you are described as being in crisis - there is no power and you are living by candlelight, with a concern that the house might burn down if your mother dozes off after using either heroin or methadone. As a result on 1 September 1993, you are taken to an Aboriginal group home. You were four at this stage and your sister was five, your younger brother about 2.

19 The Group home was in Lalor and was run by a family who had four children of their own. Other children used to come for emergency placement as well. Visits were arranged for your mother to attend. You would prepare for those visits but she often would fail to attend. A couple of years after this you went to Lake Tyers to stay with Mick Edwards and his wife Glenda, your father's brother, and you stayed there for a couple of years in what appears to be a happy situation. You left because your father, David Edwards, came to stay at Lake Tyers and made an application for you children to come and reside with him in Churchill.

20 Your mother moved to Drouin and accordingly sometimes you stayed with your mother in Drouin and sometimes with your father in Churchill.

21 Kevin Dow at that stage was on the run for murder and was arrested in the house at Drouin in fairly traumatic circumstances. Ultimately, the charge does not proceed.

22 You attended different schools according to where you were living and your attendance was sparse to say the least. This continued until late 1999 when your sister Nindara went and lived with her older half-sister, Penny, in Melbourne and David Edwards took you and Terrick to the country. By that I mean that you went back to your father's country along the river, you learned to hunt, fish and pick fruit and vegetables for the local farmers, learned how to play the didgeridoo and dance and finally ended up at Echuca where your uncle Mick Edwards was living. You were aged about 11 or 12 at this stage. Your father obtained a house in Echuca and your sister Nindara came up from Melbourne and you all stayed with your father in Echuca for a short time. You and your father busked on the waterfront at Echuca for tourists, playing the didgeridoo and dancing. You went to Echuca Primary and did some secondary schooling at Echuca High School. You are then aged 13 years and you started to run wild. You joined a gang of males who just roamed around the town. You start smoking cannabis, you truant, you disobey your father and there is physical confrontation and punishment by him.

23 One of your friends one night robs a service station. You were concerned you would be caught up with that and accordingly you hitched a ride to Melbourne and arrived on your mother's doorstep at the age of 13. This was 2002. You had been with your father from 1999 to 2002. You were 13 going on 14 when you come back to live with your mother.

24 Kevin Dow was also living with your mother and you had between you a love/hate relationship. You sometimes stayed with your mother, sometimes you would stay with your older half-sister Penny, or alternatively your sister Nindara.

25 It is clear that the use of cannabis was acceptable in the house that you were residing in with your mother. You did not attend school at any stage whilst in Melbourne. You had a physical altercation in 2004 with Kevin Dow in which he assaulted you, and as a result you left and you went to reside with your sister Penny.

26 At the stage at which you moved to live with Penny in late 2004, she was in a house in Preston, had a boyfriend and was working in day care. She encouraged you and you managed to obtain a job at the Glynis Nicholls Aboriginal Hostel earning a few hundred dollars a week. You lasted at that for what was described as "a few months". That job failed due to your moving back to your mother's place and commencing to smoke cannabis again. You spent most of the time between 2004 and this offence in 2009 being on the New Start Allowance, playing video games and hanging out with other young men at the flats in Northcote. You tried a hospitality course at the William Angliss but did not last for any length of time.

27 It was at the beginning of 2009 that you became involved with Rhiannon Apkarian who, at that stage, already had two children who were in the care of Department of Health and Services. During 2009, Rhiannon got a place in Glenroy. You helped her to move in there and you also moved in with her at that point. But, once again, there was an argument and you shifted back to your mother's flat.

28 You and Rhiannon split up in July 2009 and as a result she had the contraceptive implant which she had in her arm removed. When you resumed the relationship, shortly thereafter, she fell pregnant. You were unhappy about the pregnancy as you were not ready to be a father at the age of 20 and you argued with Rhiannon. At some stage you reconciled and it was on 21 October that you had another argument with Rhiannon which resulted in you ultimately being ejected from the flat by your mother Cheryl and you go and stay with your sister Nindara. It is Rhiannon who came to see you at Nindara's place, as I earlier described. There appears to be a fairly lengthy period of partying over the next couple of days, ultimately, resulting in the death of Kevin Dow, in the circumstances already outlined.

29 I accept that there is a long history of off and on antagonism between you and Kevin Dow, over the time of your mother's relationship with him, which explains, to a limited degree, your overreaction on this day.

30 In relation to these matters, the decision of the court in R v Fuller-Cust[1] acknowledges that the disadvantage due to the prisoner's Aboriginality is a relevant factor to be considered in sentencing.

31 The matters referred to in Fuller-Cust were somewhat modified and clarified in a decision of Court of Appeal in DPP v Terrick.[2] What is made clear in that case is that the individual circumstances of an offender are what are particularly relevant to sentencing. The circumstances of disadvantage, deprivation or violence may be explanatory, if not causative, of the offending or of the offender's alcohol or drug addiction. The aboriginality of an offender may have some relevance to those matters.

32 In this case, there is no doubt that you have had an appallingly deprived and dysfunctional upbringing. Equally, so has your victim, your mother, your father, your sisters and your brother. I hope at some point that you will be able to break this perpetual cycle of horror, deprivation and dysfunction. Your Aboriginality may well be the cause of all of this dysfunction and deprivation but it is the consequences it has upon you that is in my mind the most significant matter.

33 I have been referred by your counsel to some cases involving Aboriginal offenders: DPP v Robert Shane Lovett[3] and R v Melissa Anne Kulla Kulla.[4] Whilst each may be useful to a degree, there are some quite distinct differences. In the matter of Lovett, he was a youthful offender who also had a significant intellectual impairment. Melissa Kulla Kulla was a youthful Aboriginal offender who had a significant Verdins issue. She had quite significant cognitive impairment, together with a lengthy alcohol and drug abuse history. In terms of deprivation, I am unsure if I've ever seen a worse case of deprivation than that of Melissa Kulla Kulla.

34 Despite these differences, they are of some assistance to the court in determining an appropriate penalty. I take into account in your favour, your plea of guilty, your lack of significant prior convictions, and although you do have a prior conviction for violence, it is of a minor nature according to the penalty imposed.

35 Your history of abuse and deprived background, your age which makes you a young offender at the time of the commission of the offence. Your attempts whilst incarcerated to attain various skills by the performing of courses, the fact that you are now a father and are determined to have some input into your daughter's life, your prospects of rehabilitation which, although I do not find them to be exceedingly good are moderate, and the necessity for the court to encourage your rehabilitation are all powerful matters in mitigation. All of that must be balanced in respect of the other factors that are important in our community. A sense of denunciation of a crime of this nature, the need to deal, albeit modified in this case, with both general and specific deterrence and the need to impose a just and appropriate penalty.

36 You are sentenced on the charge of manslaughter to be imprisoned for a period of seven years. I direct that you are to serve a period of four years before becoming eligible for parole. Pursuant to section 6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been eight and half years with a minimum of five and half years.

37 I declare that you have spent 520 days in pre-sentence detention and such should be noted in the records of the court.

38 Application for retention of forensic sample under section 464ZFb(1) is granted.

[1] (2006) VR 496.

[2] [2009] VSCA 220; (2009) 24 VR 457 at para 46.

[3] (2008) VSCA 262, Maxwell P, Nettle and Redlich JJ.

[4] (2010) VSC 60, King J.