R v Giammona [2008] VSC 376

3 The deceased, Darren John Parkes, was 29 years of age at the time of his death. He had been remanded in custody at the Scarborough North Unit of Port Phillip Prison after having been arrested by police on 20 June 2005. As Mr Grant of counsel noted on your behalf, the deceased was on remand for one count of attempted murder, three counts of armed robbery, 29 counts of burglary, 20 counts of theft, one count of attempted theft, three counts of theft of a motor vehicle, one count of cultivating a narcotic plant, two counts of possessing of a prohibited weapon, two counts of criminal damage, and one count of going equipped to steal.

4 Based on the allegation implicit in those charges and other information, Mr Grant submits that Parkes had a propensity for violence tending to suggest that the initiator of the incident which led to his death was him rather than you. He refers in particular to incidents in December 2005 and March 2006 involving the deceased. In the first incident he presented at the Out-Patient Department of Health Service after inflicting lacerations to his upper chest and had been at least accused of standing over other prisoners. In the second incident in March 2006 he presented to the Out-Patient Department with what appeared to be self-harm propensities. The documents he referred to indicated that in relation to Parkes, there were three knives at Barwon in 2003, a stabbing at Fulham in 2002 and standover occurring at Port Phillip Prison during 2005 and 2006. In summary Mr Grant relies on these matters in support of the ultimate conclusion that you were not armed when you entered Parkes' cell and that the knife with which you fatally stabbed him was already in his possession.

5 You were also on remand in the same unit awaiting sentence on some charges of dishonesty and you occupied the adjoining cell to Parkes. The business which you had been involved with and which had given rise to those charges was a butchery business.

6 At approximately 4.25 pm on 23 March 2006, you entered Parkes' cell. Witnesses in the immediate vicinity, including Prison Officer Naylor, heard a commotion. Naylor walked out of his office to hear a male voice scream, "What have you done to me?" That prison officer walked towards Parkes' cell which was Cell 406 and became aware of Parkes screaming and you walking out of the cell into your own cell next door. Naylor's evidence is that when he saw Parkes come out of Cell 406 he was clutching a pillow to his back and a sheet to his front and he was bleeding heavily and demanding to be taken for medical attention. This aspect of the incident was seen by a number of witnesses. Another prisoner, Luke Kobylirz, made a statement suggesting that from his upstairs cell opposite where Parkes was stabbed, at the time of this incident he heard a high pitched scream and Parkes screaming words to the effect, "No Rosie, no Rosie, no Rosie", apparently referring to you. Whether or not that was said is in contention and Mr Grant points to telephone calls which were occurring at the time which recorded part of the incident and which at least on the face of it do not appear to support what Kobylirz says.

7 Examination of the deceased indicated that he had stab wounds to the chest which had cut into the lobes of the left lung and a stab wound to the left side of his back had also contributed to his death. In all, Parkes sustained 16 wounds to his chest, back, right and left arms, and left leg. Despite the fact that there was a confrontation you sustained no injuries of any significance. These facts tend to count against you being the victim of a surprise attack.

8 When the matter was investigated, makeshift knives were found as follows. In the cell of Parkes a round metal spike with a sharpened point and a makeshift handle was found on the floor of the cell. In your cell, apart from bloodstains, there was also recovered a makeshift knife, and on the bed underneath the doona was a makeshift scabbard made of a piece of cardboard wrapped in cellophane tape which could be used to hold a knife. It would appear from the evidence that the knife found in your cell (which was in fact found in the toilet), was made from a piece of metal removed from a trolley which had been flattened and sharpened.

9 When you were interviewed you made no comment in response to questions by the police. On behalf of the Director of Public Prosecutions, Mr Elston submitted that their case is that you entered Parkes' cell armed with a knife and the confrontation occurred with you engaging in a level of violence far in excess of anything reasonably necessary for self-defence.

10 You gave evidence on oath before me. You described the circumstances in which you came to be remanded at Port Phillip Prison and then described an incident at about 3.30 pm on 23 March 2006. You said that Parkes had come into your cell asking for coffee and then pulled out two knives which he bounced on your mattress to show how sharp they were, and they were going straight through the bed. You said in cross-examination that Parkes took them out from under his shorts and under his T-shirt. You say you asked him to stop because you were concerned about your cell being searched, but having stopped for a time he then resumed. You then claimed to have become frustrated and again asked him to stop. You then say you said to him, "Get out of the cell or you're going to get me ramped" ("ramped" means searched). You said he left your cell without saying anything. Your evidence suggested that when you looked later on the bed you saw a cover or a sheath for his knife which you did not touch because you did not want fingerprints on it. However you claim to have left your cell and approached him while he was playing table tennis and said "You left the cover to your boner in my cell". You claim he said, "Fuck off, dog" and so you just walked off because you did not want an altercation.

11 About half an hour later you said you went into his cell in the hope that he had calmed down and when you did so he was standing at the window facing away from you. You claim you said, "Come and get your shit out of my cell", referring to the sheath. You claim that he then said, "Here, hang on to this as well" and that he then turned and ran at you following which there was a struggle. The struggle seemed to go on for a time until you say you became aware that the knife which you suggest he was holding dropped into the sink during the struggle. Although the struggle continued, you say that you picked up the knife and in one movement you hit him with it. You think you hit him in the chest with it. You accept that you heard him say twice, "What are you doing Rosie". You seem to suggest that it is at this point you realised what was occurring, having been acting in a trance-like manner, and returned to your cell, throwing the knife into the toilet. You claim that you were concerned that he might chase you but, of course, on your version of events you had the knife he had attacked you with and he had been stabbed - you had not.

12 In cross-examination by Mr Elston you were asked for an explanation as to the 16 stab wounds that were inflicted on Parkes and you said that there were two stab wounds that you could recall but the others you could not. It was put to you that you stabbed Parkes in the back, consistent with the medical evidence, and you could not recall.

13 It was put to you that your account of Parkes being in your cell and displaying not one but two knives is most unlikely because of the risk of being observed by prison officers who were in the vicinity, with the door to your cell being open. It was also put that there was no antagonism between the two of you and that Parkes had no reason to be aggressive or angry with you. You agreed with that proposition.

14 Mr Elston also questioned you about whether or not it is likely that Parkes would have referred to you as a "dog" in the later conversation, noting that it had a particular meaning in a prison context. You appeared to accept that any wounds or scratches you received were minor. When it was put to you that the knife which was later found in your cell was your knife, you denied it. You said in particular when the prosecutor asked you why you would not hang on to the knife in case he came after you that, "I'd never used a knife before".

15 Mr Grant submitted on your behalf that I could not be satisfied that when you entered the cell of the deceased you were armed with a knife. For me to conclude that you entered Parkes' cell armed with a knife, I would be required to be satisfied about that beyond reasonable doubt.[2] Mr Grant also referred to the prisoner management files concerning the deceased which include a report that a package containing three shivs was found during a search of the deceased's cell on a previous occasion. However, that occasion was in November 2003, some two and a half years before this incident. The files also contain an incident report relating to a stabbing of a prisoner which the deceased was allegedly involved in. Mr Grant also referred to various items evidencing incidents of self-harm on the part of the deceased by way of cutting.

16 Mr Elston, on behalf of the Crown, submitted that you had possession of the knife at the time you entered the deceased's cell. He submitted that I should conclude that you took the knife with you into Parkes' cell "for whatever reason" when you went to speak to him. Mr Elston suggests that I can safely conclude as to what occurred in the cell during the struggle, although there is no question that whatever your belief in the need to protect yourself you dominated the conflict, illustrated by the sheer disparity between the injuries to Parkes and the lack of them to you.

17 I found this a most difficult factual issue to resolve and in many respects I am not able to. I did not find the evidence you gave about the earlier visit to your cell by Parkes whilst in possession of two knives convincing. There was much to be said for the Crown's submissions that the evidence was fanciful and lacking in credibility. However, there does not seem to be any evidence of previous hostility between you and Parkes. Further, the Crown has accepted your plea to the offence of defensive homicide which seems to me to be inconsistent with putting that you were armed with the knife which caused the death of Parkes when you entered his cell.

18 I have to sentence you for the offence to which you have pleaded guilty. Further, as Mr Grant has submitted, there is some factual support for what you have said. The forensic evidence of Andrew Rutherford seems to establish that there were two latent fingerprints on the sheath which was found in your cell which match Parkes' fingerprints, not yours. As Mr Grant submitted, that evidence is consistent with the movement by the deceased of the sheath from his cell to your cell and it being left there by the deceased, and is to some extent consistent with the sworn evidence given by you.

19 Ultimately I propose to sentence you on the following factual basis:

1. For reasons I am unable to identify, you went to Parkes' cell.
2. I am not satisfied beyond reasonable doubt that when you did that you were armed with a knife. In view of the fact that you have given evidence that you were not armed when you entered Parke's cell, it must follow that on the balance of probabilities, I find you were not.
3. I do find on the balance of probabilities that Parkes had a knife in his cell and that that knife became involved in the conflict between you.
4. In circumstances that I cannot identify with any precision, some kind of confrontation occurred in Parkes' cell between the two of you and that involved the use of a knife which had been in Parkes' cell.
5. Although the circumstances are by no means clear, I sentence you on the basis that, whatever occurred, the incident was initiated by Parkes. I do not, however, understand that there is any evidence to suggest that the "spike" or second knife found in his cell under the window was used by him in the confrontation with you. It appears that it was collected, but never sent for forensic testing.
6. The medical evidence indicates that however the confrontation developed, you had control of it throughout and notwithstanding that you had achieved that position, you inflicted a significant number of wounds on Parkes, including to his back and limbs. You suffered no injury from the confrontation.

20 I received one Victim Impact Statement on behalf of Jodie Maree Arthur. The deceased was her partner and they had been together for 17 years. They had three children. In her statement Ms Arthur acknowledged Parkes' history but expressed the view that he was a good partner, good father and cared for his family. Her statement then described the effect on her and her children of Parkes' death. Whatever criminal history Parkes had, the reality is that these four people have lost a partner and a father and the impact of this on them will be long lasting. I take that into account in the sentence I impose on you.

21 Section 9AD of the Crimes Act 1958 (Vic) provides that a person who "by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) ... if he or she did not have reasonable grounds for the belief referred to in that section." Section 9AC provides that a person "is not guilty of murder if he or she carries out the conduct while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury".

22 The offence of defensive homicide was introduced by the Crimes (Homicide) Act 2005 (Vic), which commenced operation on 22 November 2005. The amendment relates only to offences alleged to have been committed on or after that date.[3]

23 With respect to current sentencing practices, there are now two cases from the Trial Division of this Court where sentences have been imposed after a plea of guilty to the offence of defensive homicide: R v Smith;[4] and R v Edwards.[5] Both of these sentences were imposed by Whelan J. In Smith, his Honour was sentencing a prisoner who had pleaded guilty to one count of defensive homicide. The prisoner in that case was sentenced to 7 years' imprisonment with a non-parole period of 5 and a half years. The death of the deceased in Smith was also the result of stab wounds, numbering five.

24 Mr Grant submitted on your behalf that this is a less serious case than that of Smith. The learned prosecutor submitted to the contrary.

25 I indicated at the outset of these remarks you have pleaded guilty to the offence. Your counsel relied on that plea and set out in his submissions a number of the cases which support the proposition that such a plea should produce a significant discount. It seemed to me that your counsel relied primarily on those cases which referred to the utilitarian value of the plea.[6]

26 In the passage quoted from Cameron v R, Mr Grant extracted the question as to what extent your plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. He also refered to whether or not the plea was entered at the first reasonable opportunity.

27 On your behalf Mr Grant submitted that you pleaded to a different presentment to that which you originally faced. You originally faced a charge of murder. submitted that I could form the view that the plea is at an early opportunity.

28 On the other hand, Mr Elston submitted that the plea was "very much an eleventh hour situation".[7] He went on to submit that it was not a situation where there had been overtures for some considerable period of time to resolve it. However, Mr Elston accepted that you are entitled to a discount by virtue of your plea of guilty. Mr Grant submitted, in response, that the DNA analysis was not made available to the defence until shortly before you decided to plead guilty.

29 Of course I do identify a discount for your plea of guilty. The question is whether or not apart from the utilitarian value of the plea of guilty it has any association with feelings of remorse on your part. The Crown did not submit that I should conclude that your plea of guilty is not an indication of remorse. However, having observed you in the witness box and having heard the submissions made on your behalf, I have reached the conclusion that whilst you may feel some remorse it is not the predominant reason for your plea of guilty. Indeed, I raised this specific matter with your counsel,[8] and his response was more in connection with the utilitarian value of avoiding a murder trial and the facilitation of justice than being able to point to genuine indications of remorse and acceptance of responsibility.

30 So far as the culpability of your offending is concerned I accept, as does the Crown, that your actions were not premeditated. Were it to be otherwise then it is unlikely that you would have avoided the need to be tried for murder. I also accept that your actions were spontaneous and it seems of short duration. As I have already indicated, you are to be sentenced on the basis that you had a genuine belief in the need to defend yourself despite the fact that your belief was not based on reasonable grounds.

31 However, it should be noted that even on your own evidence whatever role the knife in Parkes' cell played in any struggle between you it did not injure you and, as you describe, fell into the sink. This struggle was going on in an open cell with prison officers in the vicinity which you say had earlier made you apprehensive about being searched. You then picked up the knife and used it to stab Parkes and inflict 16 wounds. The sheer number and seriousness of the wounds indicates that by then any perceived threat had subsided. However, I do take into account that Parkes had a history of violence and I would accept that from your point of view, he had a reputation to match within the prison.

32 I am informed that you are 31 years of age, having been born on 9 June 1977. You were educated at Rosanna East High School to Year 11 standard and then commenced and completed a butcher's apprenticeship at the University of Meat Supply in Carlton.

33 You commenced employment with the National Australia Bank in a call centre and received a promotion during the course of that employment. However, during that time you apparently commenced to use drugs, moving from the use of cannabis to heroin and the use of that drug appears to have had a significant interfering effect on your long-term employment. In 2005 you and another person opened a butcher shop in Rosanna which traded for a few months but the venture failed and as I have earlier observed you were in custody charged with dishonesty offences arising from cheques which had been apparently written on that business.

34 In the course of submissions, I asked your counsel to give me some assistance as to what the future might hold for you so far as you might see it. I posed the question because, as I noted at the time, there is often a concentration on the past history sometimes at the expense of a plan for the future. I was informed by your counsel that your ambition is to reduce your classification, move to Loddon prison and do such computer-related course or courses as you can to bring your skills to a level where, on your release, you can obtain "white collar" employment. You have completed a butcher's apprenticeship and I am told you have family support. As Mr Grant pointed out, the extent to which that will be able to be done may well depend on the attitude of the Department of Corrections. However, there is some prospect of rehabilitation and a plan of sorts to achieve it.

35 Your prior criminal history, as I calculate it, reflects 113 convictions from eight court appearances. On seven of those occasions you were sentenced to be imprisoned. The vast bulk of your prior convictions are for offences of dishonesty and the only ones with direct relevance to this offence were in 2002 for unlawful assault, possessing a drug of dependence and possessing an article prejudicial to the security and good order of a prison. However, it is not an enviable record and is not one which encourages me to consider that the future for you is particularly optimistic. I accept the submission on your behalf by Mr Grant that your prior offending needs to be looked at in the circumstances of illegal drug use, although that explanation is more by association than by detailed submission. I also accept the submission that of course having taken your prior convictions into account it is not appropriate to impose a sentence on you which is disproportionate for that reason alone.[9]

36 Mr Grant submitted that the circumstances of your custody have been more difficult than if you were an ordinary prisoner and that those circumstances would probably continue. He informed me that immediately after the offence was committed you were placed in 22 hour lock down. In May of this year you were apparently transferred to Acacia unit at Barwon prison. So far as your present custody conditions are concerned, you are unable to join the prison population. That raises the issue of the hardship under which you will serve the sentence I impose on you. I have since received an affidavit by Ms Victoria Ryan, Acting Manager of the Major Offenders' Unit within the Sentence Management Unit of Corrections Victoria. Her responsibilities include the management of the placement of "major offenders", who are described as such because of the serious nature or the high public awareness of their crimes. She deposes that you are currently classified as a maximum security prisoner (A2), following an individual assessment which took into account "[your] safety and need for segregation from other prisoners who may threaten or be threatened by [you], and [your] perceived allegiances to other prisoners or groups". She further deposes that since the death of Parkes, you have been accommodated in a variety of high security or management units in both Port Phillip and Barwon Prisons.

37 Ms Ryan also deposes that a principle applied by the Sentence Management Unit is to accommodate prisoners within the least restrictive environment appropriate to the prisoner's classification. You have apparently attended monthly Sentence Management Panels (the most recent of which was on 6 August 2008), in order to monitor your placement.

38 You have been placed at different times in both of Barwon Prison's two high security units: first in Melaleuca from 27 September 2007, and then in Acacia from 28 May 2008, where you are currently situated. Ms Ryan says that while the usual out-of-cell hours for mainstream or protection units are eight hours and eligible prisoners are entitled to a weekly contact visit of two hours' duration, prisoners in high security units do not have access to these benefits. Ms Ryan deposes that since 23 April 2007, an incentive based scheme has been implemented in Acacia. This scheme uses behavioural based contracts to respond to changes in prisoner behaviour. She deposes that you are currently on regime 3, which provides access to the most benefits under the scheme.

39 Ms Ryan deposes that your current placement under regime 3 allows approximately six hours out of your cell if you wish; provides rotation through the two exercise yards and day room on a daily basis; allows you to mix with six other prisoners; provides access to a telephone with up to 32 personal calls per week, and unlimited legal professional calls; allows two non-contact visits of one hour's duration per week; permits up to 12 family contact visits per year. Had you not qualified under regime 3, you would only be entitled to receive family contact visits in special or exceptional circumstances. You also have access to facilities to contact your legal representatives, educational facilities, and medical, dental and psychiatric services. Ms Ryan deposes that educational and other programs are limited in Acacia Unit, as is access to opportunities to perform work.

40 As Whelan AJA said in R v Males[10] when a prisoner is being held in protective custody, the circumstances of that custody are relevant to sentence but the extent to which it is to be taken into account in the prisoner's favour depends on the source of the need for protection as well as the personal circumstances and likely duration. In your case the source of the need for protection is your actual offending and can be contrasted with the circumstances of others who need protection because they are willing to give assistance to the authorities. However, to the extent that you are not able to live as a mainstream prisoner I do not dismiss those circumstances as to either the way you have been held in the past or may continue to be held in the future.

41 So far as pre-sentence detention is concerned that is apparently agreed between counsel at 176 days.

42 It is inescapable that general deterrence is a significant factor in sentencing you given that this death occurred in a prison situation. Whilst I agree with Mr Grant that the actions which caused the death of Parkes were spontaneous rather than premeditated, nonetheless the circumstances require general deterrence to be given significant weight. I also agree with the prosecutor that specific deterrence is also relevant and must be given significant weight since you are to be in custody for some time yet.

43 For the crime of defensive homicide you are sentenced to be imprisoned for 8 years. I fix the period of 6 years to be served before you are eligible for release on parole. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state that but for your plea of guilty I would have sentenced you to 9 years' imprisonment and imposed a period of 7 years before you would be eligible for release on parole.

44 I declare that your pre-sentence detention is 176 days including this day.

[1] See Crimes Act 1958 (Vic) s 9AD.

[2] See R v Storey [1998] 1 VR 359.

[3] Crimes Act 1958 (Vic) s 603.

[4] [2008] VSC 87.

[5] [2008] VSC 297.

[6] See R v Duncan [1998] 3 VR 208; Cameron v R (2002) 209 CLR 339; R v Lee [2004] VSCA 46 at [20]- [22]; R v Taing [2004] VSCA 46 at [20].

[9] See Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465.

[10] [2007] VSCA 302.