R v Fulton [2000] VSC 487

Mr Allen made a statement to police to the effect that he had telephoned you at Jelleff's home in Barkly Street in Brunswick on the evening of Thursday 17 February 2000 between about 9 p.m. And 10 p.m. He told police that it was a social call and that you answered the phone. He said that although at that time you sounded like you had drunk a couple of beers, you did not sound intoxicated. As I have said, the evidence before me demonstrates that you were affected by alcohol at the time of the crime. Allen said that he could hear your victim yelling in the background, "Come on, let's get to bed." Allen told police that you said, "He wants a fuck and I won't give him one." you told police that Jelleff said, "Can I fuck you tonight?" you said that made your feel sick and that you said to him, "Don't talk that way to me. I've got my own bloke." you told police that you said further, "You're a friend, you don't talk like that." you said that he just kept "talking dirty all the time" and then went to bed. Subsequently he came out of his bedroom and inquired as to what time you were coming to bed. You said, "You don't own me." you then said to the police, "Everything just went wrong." you said, "He come out of his room and he talks dirty and I kept telling him to stop it and he kept talking like that. I told him that, last time, 'Don't talk to me like that any more,' and he done it again and I had a few drinks in myself, I'd had one too many. And I just got crabby with him and I grabbed the knife as he came out of the bedroom. I went like that." .

8. On the videotaped record of interview you indicated that your victim was standing close to you trying to put his arms around you, when you picked up the knife and thrust it at him. You said to the police, "But I didn't want him to die. He wasn't meant to die. I thought I just nipped him." .

11. You were asked by police what knife you grabbed, and you said that it was on the table where your tea was. You told police that you couldn't finish your tea because your victim was turning you off your food by mauling you and by "talking dirty".

14. It should be noted that photographs of the premises in question were taken later by police. Those photographs reveal a plate with a half eaten steak and a fork still upon the coffee table. The knife which undoubtedly was used by you upon your victim was a steak knife. That piece of cutlery was found later on the floor of the loungeroom of your victim's premises.

17. Accordingly, I accept that the incident which resulted in the single thrust of the steak knife to the abdomen of Jelleff did take place substantially in the circumstances stated by you to police. I accept that your action was spontaneous and not premeditated. You had no intention of causing the death of your victim. Your plea of guilty before me is on the basis that you committed an unlawful and dangerous act in circumstances where a reasonable person would have realised that he or she was exposing the other to the risk of serious injury. Whilst it is true, as indeed was submitted by Mr Kayser for the prosecution, that the particular circumstances of this manslaughter by unlawful and dangerous act fall into the lower end of the scale of gravity of such conduct, the taking of a human life remains a most serious offence. The courts not only have a duty by imposing appropriate sentences to uphold the sanctity of human life, but must also try to deter others who, by resorting to violence as a way of solving a problem, may cause loss of life.

20. Manslaughter is, however, an offence committed in a range of circumstances by a wide variety of persons and it is necessary to have regard to the particular circumstances of the offence and the factors personal to each offender in determining the appropriate sentence.

23. There are a significant number of mitigating factors in the circumstances before me. First, you have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and the cost of a trial. Furthermore, and significantly, the relatives of your victim, including his brother, who has filed a victim impact statement, have been relieved of the trauma and the unhappiness of a criminal trial. Further, you were apprehended quickly, and although at first there was some prevarication on your part, you made full confession of the circumstances of your crime to police in the course of a detailed record of interview which took place some hours after the events and when you were more sober.

26. I accept, too, that your plea indicates remorse for your actions. In relation to the issue of remorse, I note that immediately after the incident you ran to a nearby unit and enlisted the help of a neighbour, Mr Birch, who rang an ambulance. Mr Birch gave evidence at your committal that you were very concerned that Jelleff might die and that you placed ice on his face. Some hours later, when asked by police why you decided to tell the truth, you said, "Because I couldn't live with myself. Because he was a good bloke. I never hated him." .

29. I have been told something of your personal history and your circumstances. You are now aged 35 years. You have admitted to a number of prior convictions for offences of burglary, theft, causing criminal damage, stating false name and address, resisting police, and unlicensed driving between 1985 and 1997. The nature of those prior convictions is such that they are not highly relevant to my task of sentencing you today, they being unrelated to violence.

32. Evidence has been led on your behalf. I heard from Jennifer Ramstein who has known you since 1973. Her evidence supports the submission of your counsel, Mr Papas, that you have a life history that has been marked by deprivation and tragedy beyond the experience of, and indeed perhaps the comprehension of, the great majority of the community in which you live. I am satisfied that you have lived a severely deprived and marginalised life.

35. In addition to the evidence of Ms Ramstein, a number of documents and reports have been tendered before me by consent. The material before me establishes that from a very young age you experienced violence and emotional trauma of a high order. Your natural father left home when you were of a young age and it would appear that you have never had any relationship with him. Thereafter, and whilst you were still very young, your mother, Coral, established a relationship with a man named Jensen. The relationship between your mother and Jensen was one marked by violence and excessive alcohol consumption by both your mother and Jensen.

38. You have an older brother, John, who at about the age of eight years was taken into the care of the Department of Human Services. At about the same age, your brother, Craig, hanged himself from a tree. It was you who found him. Another female child of your mother, Jenny, died at an age of some months.

41. You have, however, four surviving sisters, one of whom is your twin. Your sisters are now aged 29 to 33. When you and your brother and your sisters were aged between about 7 and 13 years, your natural mother killed Jensen by stabbing him. She was later convicted of manslaughter. It would appear that you and your siblings were present at the time of this offence and indeed the knife which your mother used to kill Jensen, with the intention that you hide it, was given to you by her.

44. At that time, Ms Ramstein, who gave evidence before me, was providing care for two of your sisters. She gave evidence before me that she knew your mother and that your mother made repeated suicide attempts in the presence of you and other children of the family. Finally, your mother committed suicide about eight years ago.

47. Not surprisingly, your counsel had difficulty in presenting a cogent, chronological history to me. However, a number of documents which were tendered before me do give some insight into your history. It would appear that you left home at about the age of 14 years. You spent several years in and out of children's homes, including those at Ballarat, Allambie, Tally Ho and Lady Duggan. You have spent time at Winlaton. Your school achievements were limited, mainly because of family disruptions.

50. At the age of 16 you were released from Winlaton and shortly thereafter you commenced a relationship with a man called Paul. He was the father of your child, Anthony. It would appear that shortly before the birth of Anthony, his father, Paul, was imprisoned for drug offences and burglary.

53. You then established a relationship with a de facto husband by the name of Gary. At the time that Anthony was born, you appear to have been happy for a short time. Significantly, I note that you were able to withdraw from heroin use without any treatment about the time of your pregnancy. You did not use heroin for a period of at least 18 months thereafter. However, it is apparent from the records before me that you still have significant difficulty in coping with your life.

56. You were admitted to the Hobson Park Psychiatric Hospital on the 3 January 1987 after cutting your wrists and displaying hysterical behaviour. You told those admitting you that this followed an argument with your de facto husband, Gary, about your mother. You also told them that Gary had become physically violent towards you and towards your 14 month old son, Anthony. You were observed to have consumed a large amount of alcohol and become hysterical and abusive. Medical staff at Hobson Park were unable to establish any psychiatric disorder. At about the same time, however, your son Anthony had been taken into care and a court case relating to this issue was pending at the time of your admission to Hobson Park.

59. Within one month of your discharge from Hobson Park, on 5 January 1987, your son, Anthony, died in consequence of serious assaults upon him by your de facto husband, Gary.

62. You were admitted to the Dandenong Psychiatric Centre on 6 February 1987, four days after the death your son, Anthony. You remained an inpatient there until 10 March 1987. That is over a month later. The diagnosis appearing in the discharge summary describes you as a person who has had a grossly deprived life. It stated that the death of your child, Anthony, who was the sole object of your love, was absolutely devastating to you. The discharge summary noted that you were self-destructive and were only able to express your grief for Anthony when drunk. The doctor who prepared the discharge summary said as follows: "The most appropriate future management is ongoing support. Robyn needs to be encouraged every step of the way to change her lifestyle and to try and improve her lot. Whether Robyn has the strength to do this is doubtful." .

65. Regrettably for you and for the community, either you were not provided with that support or you did not accept such support as was offered to you.

68. Precisely what occurred in your life over the ensuing years is not entirely clear to me. However, a medical report tendered before me and provided by the Royal Melbourne Hospital gives a glimpse of that period. It demonstrates that you were admitted to that hospital on 3 April 1993 and that you provided a history of having been attacked by a man with a knife. You had multiple stab and slash wounds to your left hand, an abdominal stab wound, slash wounds to your left arm and slash wounds to your mandible. In addition there were wounds to your right arm and to your neck as well as scalp wounds and wound to the tip and bridge of your nose. Surgical repair every these injuries was necessary and undertaken.

71. The next glimpse of your life during this period appears four years later when you were assessed by a consultant neuropsychologist, Dr Simon Crowe. That assessment took place in July 1997 after ARBIAS, the alcohol related brain injury service, had referred you to him. It would appear that you came into contact with ARBIAS subsequent to having been physically assaulted by the man you were then living with and subsequent to you having become homeless. It is apparent that at that time you were drinking alcohol heavily and also abusing cannabis and opiates. Dr Crowe undertook neuropsychological testing, and found that you had a full scale IQ of 65, which he considered to be in the mildly intellectually disabled range of intelligence. He considered that you suffered moderately severe compromise of memory and planning functions as a consequence of your alcohol abuse in association with other problems. He considered that you were a person who suffered a serious disability in your ability to make judgments as to your best interests.

74. Subsequently, Dr Crowe came to assess you again in July 1998. On this occasion, you were referred to him by Child Protective Services in relation to their concern about your capacity on look after your infant child, who was born shortly before to Les Edwards. It would appear that at that time you had an ongoing relationship with Les Edwards, who also has a history of chronic alcohol abuse. Dr Crowe conducted further neuropsychological testing and again concluded that you had a full scale IQ of 65. No testing was undertaken about the time of this offence and although the IQ of 65 is low, I note that you had a good comprehension of what you had done and why you acted as you did at the time of your interview by police some hours after the commission of the crime.

77. Subsequent to the commission of the offence, Legal Aid Victoria approached Outreach Victoria in an endeavour to obtain an assessment of the possibility of providing housing for you. It should be noted that Legal Aid Victoria obtained an assessment from the Department of Human Services on 21 September 2000 to the effect that you are not eligible to receive services from disability services. This is because the testing done by Dr Crowe reveals that your cognitive deficits, which I accept exist, are caused by substance abuse and head injuries sustained in the past rather than by a lack of development during a developmental period.

80. You have been known to Outreach for six years. You first came into contact with that organisation in 1994 when you were homeless and temporarily living with an older man whom they believed abused you physically. Frequently representatives of that organisation had to escort you to a local doctor following injuries sustained by you in consequence of such abuse. Outreach assisted you to apply for a one bedroom public housing unit and endeavoured to obtain support for you. Regrettably, that support appears on to have broken down because of your inability to maintain appointments at the requisite service.

83. A community development worker, Ms Lucy McCotter, gave evidence before me. She is employed by Outreach Victoria. Outreach Victoria is willing to continue to support you in your own home or wherever you are located when you are released from prison. Representatives of that organisation have discussed long term alcohol rehabilitation with you and consider that you are now interested in changing your lifestyle. Some arrangements have been made on a tentative basis for you upon you release to be admitted to a 24 hour residential alcohol rehabilitation centre operated for Koori women and other interested women by Winja Ulupna. They are prepared to take you. Ms McCotter stated that Outreach Victoria will provide ongoing assistance and support to you.

86. Dr Ruth Vine gave evidence before me. Dr Vine is a highly experienced psychiatrist who is presently employed by the Department of Community Services and is the Deputy Chief Psychiatrist. She assessed you on 14 October this year. She did not conduct any formal neuropsychological testing, but expressed the opinion that you were functioning at a higher level than that shown by Dr Crowe in his testing. She noted that that was in keeping with the period of abstinence from alcohol which has occurred while you have been on remand. She did not consider that you are intellectually disabled.

89. She expressed the opinion that whilst imprisonment has resulted in your experiencing a period of abstinence from alcohol consumption, it will be of importance in terms of your further prognosis that you receive considerable support in the community whenever you are released. She stated that it is appropriate that options such as supportive accommodation be provided to you by those experienced in alcohol rehabilitation.

92. She expressed the opinion that you have never truly grieved at the multiple losses that you have experienced during your tragic life, and if you are able to do so, you will require considerable support and expert assistance. I accept the evidence of Dr Vine.

95. Obviously, it is not in the community interest for you to serve a long term of imprisonment and then be released at the end of such term with little or no support. It appears to me to be in the community interest for your rehabilitation to be encouraged by the opportunity for appropriate support to be provided to you. That is no doubt why Mr Kayser, who appeared for the prosecution, suggested that I might consider whether your case is an appropriate case for a greater differential between a minimum term and a maximum term than is normally considered appropriate, so that the community might have the protection of your being provided with such assistance as can be given in a supervisory situation. In my view, an appropriate sentence to be imposed upon you should have as one of its principal aims the provision of support and rehabilitation to enable to you take your place in the community. For this reason it does appear to me to be proper to set a lower minimum term that might otherwise be thought appropriate so as to enable the Adult Parole Board, when it considers whether or not parole should be granted, to implement such a regime of support and supervision for you as it considers necessary.

98. As stated above, Dr Vine stressed the importance of support being provided to you, particularly in relation to having psychological assistance and stable supported accommodation to enable you to establish yourself without alcohol dependence in the community. It appears to me that such support has more prospect of being provided to you and accepted by you if provided during an appropriate period and under the supervision of the Adult Parole Board. In the end result, it will be the community who benefit if this aim can be achieved. I do not consider this to be a forlorn hope. You have the capacity to change your life with support.

101. As I noted above, in the past you gave up heroin on your own and without assistance. Unfortunately, the manslaughter of your infant son brought this period of self-induced rehabilitation to an end. You are now, as Dr Vine stated, more mature and you now have the support of your four sisters who have each travelled a considerable distance to come to this court on the day of your plea and, I note, on the day of your sentence.

104. However, as well as matters personal to you, such as the chances of your rehabilitation and special deterrence, I must, among other things, take into account the issue of general deterrence which is important in cases such as this. Regrettably, domestic violence in the community is a matter of great concern. The court plays a role by imposing adequate sentences desired to deter would be offenders in the case of prevalent and disturbing crimes that take place in people's homes. That applies in relation to crimes such as yours, although I recognise the relationship that you had with the victim was different from the domestic relationship.

107. It appears to me that the issue of the protection of the community and the likelihood of reoffending is an issue of significance in your case. Those issues, however, are related directly to the issue of providing you with support and rehabilitation in a structured setting, both prior to and after your release on parole, whenever that might be.

110. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose adjust punishment. There can be no doubt that manslaughter is a serious offence and in all the circumstances before me I see no alternative but to impose a term of imprisonment.

113. I sentence you to a term of five years' imprisonment and I direct that you not be eligible for parole before a term of two years has been served by you.

116. I declare further, pursuant to s.18 of the Sentencing Act, that you have already served 253 days in custody including today, and I direct that such be noted in the records of the court.

119. I order, pursuant to s.78(1) of the Confiscation Act 1997 that the steak knife which was used in connection with the commission of the offence be confiscated.

122. Furthermore, the prosecution has made an application pursuant on s.464ZF(2) of the Crimes Act for you to undergo a forensic procedure for the taking of an intimate sample, namely blood, in accordance with sub-division 30A of Part 3 of the Crimes Act. Your counsel has consented to this application.

125. Nevertheless, I am required by the provisions of s.464ZF(8) to be satisfied in all the circumstances that the making of the orders is justified. In doing so I must take into account the seriousness of the circumstance of the offence. As stated above, the offence to which you have pleaded guilty is a most serious offence. Taking that matter into account and taking into account the fact that the offence was an offence of violence, I am satisfied in all the circumstances that the making of the order is justified and it should be made.

128. I am required by the provisions of the Crimes Act to inform you that a member of the police force may use reasonable force to enable the procedure for the taking of that intimate sample, namely blood, to be conducted.