R v Garrard [2020] VSC 154

2 The maximum penalty for manslaughter is 20 years imprisonment.

3 I will briefly summarise the circumstances of your offending. On 19 July 2018, at approximately 6:20pm, you put on a jacket which you found hanging on the back of a chair at your residence in Doveton, and rode your bicycle to a milk bar.

4 You arrived at the milk bar roughly ten minutes later. The owner of the milk bar was known to sell cannabis over the counter. You spoke to him, and purchased some cannabis.

5 At approximately 7:00pm, your friend Jason entered the milk bar. You both left shortly after, and returned to your residence.

6 Later that evening, at around 8:30pm, Mr Husseini entered that same milk bar with some friends.

7 At around the same time, you returned to the milk bar on your bicycle. As you walked inside, you placed your left hand inside the jacket pocket, where you cut yourself on a knife. The knife was approximately 30cm in length.

8 When you entered the milk bar, Mr Husseini asked you whether you were a drug dealer, and you responded that you were. You were, at this time, funding your own drug use by selling small quantities to others.[1] You offered to sell drugs to him. You shook hands and left shortly after, at around 8:35pm.

9 You returned to the Doveton address and spoke to Jason. You told him that you had a sale of drugs for him at the milk bar.

10 You then went back to the milk bar, arriving at 8:54pm, where you spoke to Mr Husseini. Both of you were standing and chatting in a group of people who had come to buy cannabis from the owner. At some point, you went outside with Mr Husseini to continue your conversation.

11 Once outside, you got into an argument. Mr Husseini and you were yelling at each other, you pushed him, and you both got into a fight.

12 Mr Husseini and you were both throwing punches, and at one point, you were both on the ground and Mr Husseini put you in a 'headlock'. When you were in this headlock, you took out the knife from your jacket and stabbed Mr Husseini in the right side of his lower abdomen. You then dropped the knife.

13 Another friend, Andrew, arrived shortly after the fight broke out. He tried to stop the fight. Jason saw the knife drop and picked it up. You ran from the scene with Andrew and Jason, heading back to your residence.

14 After you fled, the owner of the milk bar called 000, and with the assistance of the operator, directed another person to provide first aid. The police arrived at approximately 9:30pm and took over first aid until the ambulance arrived. Mr Husseini was pronounced dead at 10:08pm on 19 July 2018.

15 You were identified from CCTV footage obtained from the milk bar. On 20 July 2018, you were arrested at your residence and conveyed to the Dandenong Police Station for a recorded interview. When you were arrested, the police also seized some items from your residence, including a black jacket and a black handled kitchen knife.

16 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

17 Mr Husseini's death has been nothing less than devastating upon his family. Mr Husseini was 24 years old when you killed him. Victim impact statements were provided to the court by his parents, Fatima and Sayid Husseini, and his sisters, Tahera and Halima.

18 Mr Husseini grew up in a loving and close-knit family. His parents speak of the enormous and painful loss of their son. His sisters speak of Mr Husseini's generosity and kindness and how they miss him enormously.

19 His family is suffering greatly from his death. They have been profoundly affected by your actions. They have lost a loving son and brother. They speak as one with feelings of grief, depression, paranoia, anxiety, anger, loss of trust in others and a loss of enjoyment in work and social life. Mr Husseini's father has been unable to work since his son's death.

20 There is nothing I can say or do to bring back Mr Husseini or heal the grief and pain his family feels.

21 The sentence I am going to impose reflects a number of factors, which judges are required by law to take into account. One of these factors is the victim impact statements that I have received.

22 I now turn to another factor: your personal circumstances.

23 You experienced family upheaval and parental separation from a young age.

24 When you were five years old, your parents separated and you went to live with your uncle and grandmother as your mother left home and your father was in prison. You had no further contact with your mother until you were 11 years old.

25 Following his release from prison, you lived with your father from the age of six until the age of approximately 13 or 14. Your father re-partnered, but your stepmother was hostile towards you and often verbally and physically abused you, including hitting you with a belt buckle or jug cord. You report that your father and stepmother used drugs.

26 Sometime between the age of eight and 10, you were sexually abused by an older woman, who made you perform sexual acts upon her and her daughter, who was around your age. This was never reported to the police.

27 You left home at the age of 13 or 14 due to the negative relationship you had with your stepmother. You were homeless for months and would 'couch surf'; staying with people for short periods of time, including friends and drug dealers, in rented rooms, and as well in cars, motels and parks. You would also stay with your mother at times, but often found yourself in conflict with your mother's partners.

28 You returned to live with your father for several weeks when you were 15 or 16 years old, but following a conflict with your father, left home permanently when you were 16 years old. You lived with your mother for approximately nine months when you were 17 years old, following an incident when you tried to commit suicide by driving a car into a truck.

29 Other than your paternal grandmother, you have not reported enjoying any close relationship with family members.

30 You have had a series of brief relationships, none lasting for more than 12 months. You have a child with a woman you were in a relationship with prior to the offending. At the time of the offending, you were unaware that this partner was pregnant and came to know about this following your incarceration.

31 You do not know the whereabouts of your biological brother and you are not in contact with your two half siblings from your father's side nor your two half siblings on your mother's side.

32 You attended a number of schools in Victoria and Queensland, repeating grades one and six before being expelled in grade seven. You have achieved grade four level reading. You report that you find it difficult to retain information. Neuropsychological testing in 2019 indicates that you have some intellectual impairment.[2]

33 After leaving school you reported commencing TAFE but you were asked to leave after two weeks.[3]

34 While in custody you have completed your VCAL, including subjects in mathematics, English and home living.

35 You report that you are currently completing a drug and alcohol program which is on a one to one basis, and are waiting to commence a barista course, a first aid course, and hope to complete other certificates. You have also completed the following courses: automotive; food handling; occupational health and safety; cleaning and safety; and logistics.

36 You became addicted to drugs at an early age, using cannabis from the age of 11 or 12, and using ecstasy and methamphetamine from the age of 13. From the age of 18, you began using heroin. You continued using cannabis, ecstasy and heroin up until the time of offending, though you ceased smoking methamphetamine a month prior to the offending. You have also experimented with hallucinogens and cocaine.

37 You were diagnosed with attention deficit hyperactivity disorder, ADHD, when you were six years old and were medicated. At the age of 10 you stopped taking medication for your ADHD, due to your mother's concerns about its side effects.

38 You have a troubling and tragic history of self-harm, with ongoing thoughts of suicide. In September 2012, when you were 14 years old, you were found by police on an overpass contemplating suicide. You later denied any suicidal thoughts. In June 2015, at the age of 16 or 17, you were admitted to Dandenong Emergency Department with self-inflicted lacerations to your left forearm. You were treated under a mental health order and reported ongoing feelings of hopelessness and experiencing suicidal thoughts when intoxicated.

39 In April 2016, when you were 17, you drove your car at high speed into a truck in an attempt to suicide, while under the influence of drugs. You report other recent self-harm by drinking half a bottle of dishwashing liquid.

40 In March 2017, at the age of 18, you tried to hang yourself from a tree. You required assisted respiration over a period of six days. It is reported that you continue to experience suicidal thoughts while in custody. You are currently prescribed an antidepressant medication.

41 For the purposes of sentencing, you were assessed by Dr Prashant Pandurangi, forensic psychiatrist, on 30 January 2020 in Port Phillip Prison. You were also assessed by Mr Simon Candlish, psychologist, on 18 December 2019, and by Ms Jane Lofthouse, a clinical neuropsychologist, on 14 February 2019. In addition to assessing you in person, the experts had the benefit of having access to your medical records. They provided comprehensive reports. I will elaborate on their evidence shortly.

42 It is beyond question that your offending is grave. You were armed with a knife and used it while in a public place, to a fatal end for Mr Husseini.

43 There are a number of matters that are relevant to sentencing you.

44 I am required to have regard to the objective gravity of your offending and your moral culpability for it. A number of issues arose with respect to the assessment of these matters.

45 It is accepted that your act of stabbing Mr Husseini was preceded by a physical fight between the two of you and that at the time of the stabbing, Mr Husseini had you in a headlock.[4] It was the single stab would which caused Mr Husseini's death.

46 You described that you had tried getting out of the headlock 'for quite some time' and that you were being strangled and you were 'pretty worried' for your safety.[5] You described that Mr Husseini had you underneath your chin and 'pretty tight' around your throat.[6] You said that you asked for help and people were trying to help you but no one could get him off you, and then you pulled the knife out of your jacket and lunged it behind you. In that moment, you felt like you were losing consciousness and thoughts came into your head that were the same as when you tried to kill yourself by hanging from a tree.[7]

47 I accept that you found yourself in a very vulnerable and threatening situation. It is conceded, however, by your counsel that your response was excessive. I agree with your counsel's characterisation of the event as 'excessive self-defence'.

48 Your offending occurred on the street, and at the time you were trafficking drugs to satisfy your own drug addiction.

49 It might well be asked how and why a court should take into consideration the circumstances which led to an addiction that caused the commission of the offence.

50 The Court of Appeal in R v McKee[8] explained that the existence of an addiction as a causal factor in offending may warrant a reduction in moral culpability if the decision to experiment with drugs is not a decision freely made, for example if the decision is affected by youth, or by 'despair and low self-regard' resulting from disadvantage or abuse. A sentence may be tailored by the judge that takes into account those factors, in addition to whether the addiction is ongoing or is being treated.'[9]

51 I accept that you developed an addiction to drugs at a very early age and that this, combined with your childhood experiences and sexual abuse, left you in a state of disadvantage and despair throughout your childhood and up to the time of your offending. I have regard to your addiction that in part caused the commission of the offence and consider that it does lessen your moral culpability. Having said that, you must be fully accountable for the conduct you have voluntarily engaged in, including taking drugs and then trafficking in drugs to feed your habit, which led you to committing this offence.

52 Following from this, counsel on your behalf spent some time during the plea hearing addressing what effect your history should have on your sentence. Referring to the High Court decision in Bugmy v The Queen ('Bugmy'),[10] Hollingworth J said:

... the High Court acknowledged that the effects of profound childhood deprivation may compromise a person's capacity to control their impulses, and do not necessarily diminish with the passage of time. That may reduce the offender's moral culpability to some degree. The precise weight to be afforded to the effects of social deprivation in an offender's youth and background requires individual assessment in each case.[11]

53 You undoubtedly suffered from profound childhood deprivation and trauma. Dr Pandurangi described your early years as being characterised by the damaging impact of several childhood adversities, including: intellectual difficulties and attention deficits, early separation of your parents, incarceration of your father, chaotic family life and alleged sexual abuse. Dr Pandurangi considered that the environment at school would have mirrored that at home. Dr Pandurangi said your chaotic living arrangements through most of your teens is again a reflection of your inability to have a meaningful structure to your life. You were in repeated contact with mental health services and heavily abused illicit drugs.[12]

54 I accept Dr Pandurangi's evidence as to the effect that your childhood deprivation had on your capacity to process emotional distress and control your impulses;[13] that reduces your moral culpability to some degree.

55 However, as the High Court also acknowledged in Bugmy, the inability of an offender to control their violent response to frustration may decrease moral culpability, but increase the importance of protecting the community.[14]

56 Your age is also a relevant factor in sentencing you. You were 20 years old at the time of your offending; you are now 21.

57 The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises.[15] In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.

58 These principles, however, are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.

59 Assessing your prospects of rehabilitation is a difficult exercise. You have a criminal history including crimes in which you recklessly endangered other people. Your prior convictions are as follows: in 2018, you were convicted of two counts of failure to stop a motor vehicle on request; five counts of driving whilst disqualified; and four counts of contravening a condition of bail. Additionally, you were also convicted in 2018 of reckless conduct endangering persons, failure to answer bail, criminal damage, resisting a police officer, unlawful assault, possessing a dangerous article in public and possessing a controlled weapon without excuse. You were incarcerated for five months, and you were released on 16 April 2018, a few months before this offending.

60 You have suffered an ongoing, harmful drug addiction, and succumbed to a lifestyle associated with that scourge.

61 On the other hand, you have shown some self-motivation in seeking professional help to address your addiction issues. Since you have been in custody, you have taken advantage of that help, in that you are currently undergoing drug and alcohol counselling on a one to one basis. You have also taken advantage of the educational and vocational opportunities available to you in prison.

62 There can be no doubt of the enormous challenge you face to defeat your addiction, particularly when you are released from custody and no longer have an externally imposed regime to structure your days and limit your options.

63 While it was submitted on your behalf that your prospects of rehabilitation were guarded, it was put that those prospects were 'far from extinguished'.[16]

64 Dr Pandurangi and Ms Lofthouse consider that your prospects of rehabilitation will depend on programs and treatment being tailored to meet your particular needs, importantly, your cognitive deficits identified by Ms Lofthouse. It is not enough to simply express the desire to change. As Mr Candlish said, you will need to have an appreciation of the amount of work and effort that will be required to achieve a pro-social lifestyle and attitudinal change.[17]

65 I consider that your prospects of rehabilitation are strongly linked to your capacity to remain drug free upon your release from prison and engaging in behavioural programs relating to your emotional regulation skills, anger management issues and interpersonal relationships.

66 I accept that you have a genuine desire to change. It would not have been easy for you to give evidence at the plea hearing. But you did. I believe you when you say that you want to work and be a normal person in society, away from crime and that you do not want a part of drugs.[18]

67 You will be eligible for parole at some stage. It is in the community's interests, as well as yours, that you have an opportunity to participate in appropriate rehabilitation programs under the supervision of the Adult Parole Board.

68 I accept that you do have fair prospects of rehabilitation if you were given appropriate treatment, support and supervision.

69 You are entitled to a discount on the sentence to be imposed, in recognition of your plea and its utilitarian value. The community has, by your plea, been spared the time and cost of a trial. Mr Husseini's family and friends have been spared what would have been a traumatic trial for them.

70 Ordinarily, making a plea on the first day of trial would have limited effect on reducing your sentence. However, the circumstances of the plea were such that it was entered on the basis that the Crown accepted that the fatal blow was caused when Mr Husseini had you in a headlock. The Crown's position up to the trial was that the fatal wound occurred after you got out of the headlock and Mr Husseini and you were on your feet and punching each other, and that it was at this time that you produced the knife and stabbed Mr Husseini to the abdomen.[19]

71 I consider the factual basis on which the plea was entered is a matter of significance and I take this factor into account in assessing the weight to be attached to the plea of guilty. In such circumstances, even though it was a late plea, I consider that you are entitled to a similar discount that you would have received if you had pleaded guilty at an earlier stage.

72 Another factor to which I am to have regard is any remorse you have shown for your offending.

73 In interviews with Mr Candlish and Dr Pandurangi, you expressed your remorse for your offending, saying you wanted to write a letter of apology to Mr Husseini's family, acknowledging that his family had lost a family member because of your actions.[20]

74 I consider you have shown genuine remorse for your actions. As I have said, I had the benefit of seeing and hearing you in the witness box. I consider that you recognise the wrongfulness of your actions and that you take responsibility for them.

75 Your impaired mental functioning may also be a relevant factor in sentencing you. In the case of R v Verdins ('Verdins'),[21] the Court of Appeal identified at least six ways in which an offender's impairment was relevant to sentence. It was submitted on your behalf that the fifth of those principles has some limited application in your case, namely that your impaired mental functioning may make your time in prison more difficult than it would be for a person who does not suffer impaired mental function.

76 It was submitted that the facts of your case can be distinguished from the facts in DPP v O'Neill ('O'Neill'),[22] a case which has been said to stand for the principle that Verdins did not apply to personality disorders. Your counsel relied on the decision of Hollingworth J in DPP v Herrmann ('Herrmann').[23] In Herrmann, her Honour said:

In those circumstances, the Court of Appeal's brief observations that Verdins principles did not apply to personality disorders 'such as those relied upon in this case' should be understood only as referring to the particular personality disorders in that case, namely dependent personality disorder and adjustment disorder with depressed mood. That was the view adopted by Coghlan JA in the recent case of Bruno, where his Honour held that Verdins principles did apply to moderate the sentence for an offender who suffered from severe schizoid personality disorder.[24]

77 In your case, Dr Pandurangi was of the opinion that you displayed features of an underlying severe personality disorder,[25] and that given this disorder and your history of serious suicide attempts, you remain at a chronic risk of suicide, especially during periods of stress.[26]

78 Dr Pandurangi considered that you have mixed personality features, which can be conceptualised under the anti-social and borderline personality disorders.[27]

79 Dr Pandurangi was of the opinion that your personality disorder would make your time in prison more onerous than others who do not suffer from a personality disorder such as yours.[28]

80 I agree with Hollingworth J that O'Neill should be given a narrow construction, and that Verdins had no application in the circumstances of O'Neill because of the underlying features of the accused's personality disorder in that particular case. Similarly, Dr Pandurangi's characterisation of your personality disorder fundamentally differs from that in O'Neill.

81 The application of the fifth Verdins principle in your case is limited. I accept that your time in prison will be more onerous on you than on other prisoners because of the type of personality disorder you have and its underlying features.

82 It follows from the above analysis that the sentencing task in this matter is a difficult one.

83 By your plea you have accepted you killed Mr Husseini and that you had no lawful justification for doing so. You must be punished for that act, and nothing other than a significant jail term will amount to just punishment or appropriately denounce your behaviour.

84 There is nothing I can do to bring back Mr Husseini or to alleviate his family's sorrow and loss.

85 The sentence I impose must give substantial emphasis to general deterrence, although I have moderated this factor for the reasons I have set out.

86 There can be no doubt that anyone who uses a knife and kills someone in a public place will face a harsh penalty.

87 Similarly, although moderated in the same fashion, I place emphasis on the need to specifically deter you from criminal activity. There is also need to protect the community from you.

89 I have been assisted with the provision of comparable cases.[29]

90 I have, insofar as it is possible with respect to the offence of manslaughter by unlawful and dangerous act, had reference to current sentencing practice.

91 Ricky Garrard, for the offence to which you have pleaded guilty, I sentence you to a term of imprisonment of seven years and I fix five years as a period during which you are not eligible for parole.

92 But for your plea of guilty, I would have imposed a sentence of 10 years with a non-parole period of seven years.

93 I declare that not including today, you have served 524 days of pre-sentence detention.

94 I make a disposal order in the terms sought by the Crown.

[1] Transcript of Proceedings, DPP v Garrard (Supreme Court of Victoria, Incerti J, 12 March 2020) 28.24-28 ('T').

[2] Neuropsychological report of Ms Jane Lofthouse dated 19 February 2019 [17].

[3] Psychological report of Mr Simon Candlish dated 15 January 2020 [53].

[4] Summary of Prosecution Opening upon Plea dated 11 February 2020 [38].

[8] [2003] VSCA 16.

[9] Ibid 92-93 [13] (Buchanan JA) (citations omitted).

[10] Bugmy v The Queen (2013) 249 CLR 571.

[11] DPP v Herrmann [2019] VSC 694 [62] (citations omitted).

[12] Forensic psychiatric report of Dr Prashant Pandurangi dated 21 February 2020 [71].

[14] Bugmy v The Queen (2013) 249 CLR 571 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[15] R v Azzopardi [2011] VSCA 372; (2011) 35 VR 43.

[17] Psychological report of Mr Simon Candlish dated 15 January 2020 [194].

[19] Summary of prosecution opening for trial dated 15 July 2019 [46]-[48].

[20] Psychological report of Mr Simon Candlish dated 15 January 2020 [86]; Forensic psychiatric report of Dr Pandurangi dated 21 February 2020 [45].

[21] [2007] VSCA 102; (2007) 16 VR 269.

[22] [2015] VSCA 325; (2015) 47 VR 395.

[23] [2019] VSC 694.

[25] Forensic psychiatric report of Dr Pandurangi dated 21 February 2020 [68].

[29] DPP v Awad [2019] VSC 706; DPP v Yucel [2019] VSCA 53; DPP v Frost [2019] VSC 672; DPP v Walker [2018] VSC 83.