R v Jewell [2011] VSC 483

3 You killed Dylan Casey by stabbing him to death with a knife, believing that it was necessary to do so to protect your father, Rodney Jewell, from really serious injury but having no reasonable basis for that belief.**

**4 On 23 January 2010, there was a party for your sister Shernie's 18th birthday at your parents' home in Rae Avenue, Edithvale. You had been present with your fiancée, Celeste Castillo.

5 Dylan Casey had been at the party since about 9.00pm with some friends. He had drunk alcohol there. It had affected him, but he had been well behaved during the evening.

6 The party ended at approximately 1.00am on 24 January 2010 when the DJ finished. You had drunk at least 10 beers between 7.30pm and 2am and later told police that you were probably drunk when you left. You had decided to take a taxi home because you did not think you were fit to drive.

7 Dylan Casey left the party with a group which included his cousin, Joshua Milgate, and his friends, Tarik Mahmutovic, Zachary Paczkowski and Tracy-Lee Cook. When they were leaving, pickets from your parents' fence were removed and thrown onto the ground or road and glass bottles were also smashed on the road, but not by Dylan Casey. The group was walking along Rae Avenue towards Montrose Avenue. On the way, another picket was snapped off a fence but, again, Dylan Casey was not involved. Other groups from the party were also in the street.

8 In the meantime, you had gone outside with Celeste Castillo to wait in Rae Avenue for the taxi you had ordered. Before leaving your parents' house, you had picked up an ornamental 'Batman' 'fantasy' knife which you owned and wanted to take home. Its total length was approximately 30 cm, with a serrated 9 cm blade at each end and a handle in the middle. You had put the knife into your pocket.

9 After seeing the damaged fence, you went back inside to tell your father about it. He came out and then he, you, your cousin, Shannon Bird, and a friend, John Ashkar, decided to confront people walking along Rae Avenue to find out who had caused the damage.

10 Your father noticed a neighbour's tree had also been damaged. After approaching other groups, your father saw members of Dylan Casey's group attempting to pull down a roundabout sign. Your father then yelled words to the effect of, 'who the fuck smashed up my fence?'.

11 Dylan Casey's group had turned left into Montrose Avenue. Your father and Joshua Milgate and his cousin, Dylan Casey, began arguing about the damage to the fence. Then there was pushing and shoving which mainly involved you, your father, Dylan Casey and Joshua Milgate. You were struck in the nose area.

12 Dylan Casey was held back by others in his group and, at one stage, he appeared to be trying to 'get at' your father. He was heard to say words to the effect of, 'Get off my cousin, don't touch my cousin'. You said, 'He fucking hit my dad' or words to that effect. Your father responded by saying that he had not been hit by anyone.

13 Acting as you thought was necessary to defend your father, you lunged at Dylan Casey and stabbed him twice: once in the upper chest region and once in the abdomen. He had not struck you and he had no weapon. The first stab injured his heart, lung and aorta. The second penetrated his bowel.

14 Tracy-Lee Cook told police that you said words to the effect of, 'Something needs to be done about it anyway', after being told by your father that he had not been hit. In all the circumstances, given that there was a scuffle going on and Ms Cook also said that she turned away from the scene to avoid seeing anyone fighting, I am not satisfied beyond reasonable doubt that you said these precise words or that you said something similar just before stabbing Dylan Casey. Your guilty plea to the crime of defensive homicide indicates that you acted as you did because you thought your acts were necessary to defend your father from death or really serious injury but did not have reasonable grounds for your belief. I am not satisfied that you acted to punish Dylan Casey or to wound him for any other reason than to defend your father.

15 Dylan Casey fell backwards to the ground. Tragically, despite his friends' efforts and the attention of paramedics, he died from his injuries at the scene a short time later.

16 You were heard to say that you had just stabbed somebody. You ran back to your parents' house, with Joshua Milgate in pursuit. He saw your knife in your hand and asked what you had done. He told you to drop the knife and began to fight with you once you did.

17 An unidentified person handed the knife to Celeste Castillo, telling her to dispose of it. She buried it under a tree at a nearby retirement village property further down Rae Avenue. She assisted the police to locate it that same day.

18 Professor Stephen Cordner, a forensic pathologist, conducted an autopsy and forensic examination. He found a penetrating wound to the chest wall with injuries to the lung, heart and aorta and profuse internal bleeding which caused Dylan Casey's death. The wound was approximately 6 cm deep and 14 cm long. There was another penetrating wound to the abdomen with an injury to the transverse colon. It was approximately 7 cm deep and 4 cm long. There were also two incised wounds to the left arm which Professor Cordner thought were consistent with Dylan Casey having adopted defensive-type postures. He estimated the degree of force for the stab wounds to the chest and abdomen as, at least, 'moderate': on a three point scale of 'mild', 'moderate' and 'severe'. I accept the uncontested evidence of his findings and am satisfied that you also inflicted the wounds on Dylan Casey's arm at some point in the process of inflicting the two major stab wounds he suffered.

19 You were interviewed by police and made many admissions, without requiring a lawyer to be present. You stated that when someone hit your father you went to punch him, forgetting that you had the knife in your hand. You collected knives and had picked the knife up in a spare room at your parents' house to take home- some 15 minutes earlier; it had been in your pocket. You had been holding the knife just to intimidate people and to tell them to 'back off'. You were scared and did not want anyone to harm your father. You said that you only hit Dylan Casey once, but the Crown alleges that you were lying about that. I am not satisfied beyond reasonable doubt that you were indeed lying. Even though you had inflicted two stab wounds, I cannot exclude the possibility that you may not have realised that you had stabbed Dylan Casey twice in the course of events which occurred within a short space of time and when you were intoxicated.

20 Counsel for the Crown argue that your response was objectively grossly disproportionate to the threat you perceived. They contend that it was disproportionate because Dylan Casey and his group were unarmed, they had not verbally threatened you or your father, your father had told you that Dylan Casey had not hit him and you stabbed Dylan Casey more than once. As they submit, your degree of culpability is demonstrated by the extent to which you overreacted to the danger you faced. [1]**

**21 Dylan Casey was very much loved by his large family who miss him and mourn for him. Nothing can make up for their loss.

22 Powerful and moving victim impact statements were read to the Court and others were tendered in the plea. I can mention just a small part of what was said by those closest to him. They speak of a fine young man at the threshold of his adult life whose potential will now never be realised.

23 To his mother, Leanne Gray, her first-born son was the family's 'keeper' and 'a loved eldest grandson, cherished nephew and treasured friend to hundreds of people'. She spoke of the 2 a.m. call dreaded by every parent and of the indescribable pain of not being there to comfort her son as he died, lying on the footpath. Her pain was exacerbated when she was not able to touch him as he lay at the scene of the crime for some five hours.

24 Dylan's father spoke of his own difficulty in dealing with the loss of his eldest son who had planned an apprenticeship as an aircraft mechanic in 2010. He explained how important Dylan was to his younger step-brothers who had lost their own father and, in particular, the significant role he played in the life of the youngest who suffered from autism and relied heavily upon his help. Dylan's loss had also blighted family occasions; it had especially affected his father and step-mother's marriage in December 2009 and what should have been a very happy time for them afterwards.

25 Dylan's cousin, Joshua Milgate, spoke of their closeness, as Dylan was just three months older. Doing so much together, they had been like brothers and were best friends. He feels helpless and weak given that his cousin was stabbed trying to protect him.

26 Dylan's cousin Megan Berger also spoke of her pride in their relationship. She too has been devastated. Dylan lived nearby and spent a great deal of time with her and her family.

27 Dylan's grandmother, Aroha Gray, shared his upbringing with his parents because the oldest grandchild is usually raised by grandparents in Maori culture. They were very close and she misses him constantly. She has been receiving psychological treatment for the resulting depression.

28 Dylan's grandfather, Terry Casey, pointed out the wider-ranging effects not only on himself and his wife, but also on Dylan's extended family. He said that the loss of a grandson is a terrible cross to bear.

29 Nothing can make up for the loss of this fine young man whose life has been so prematurely taken in circumstances so terrible for those who loved him.**

30 You have shown remorse for your actions by co-operating with police, making admissions before obtaining legal representation, pleading guilty at an early stage and not seeking bail. You were charged with murder and first offered to plead guilty to defensive homicide before the committal. This plea of guilty benefits the community and Dylan Casey's family and friends, as well as possible witnesses who have all been spared the difficulty and stress of a trial. You have described your remorse to friends and family and say that you pray for Dylan's family each night.

**31 You are 24 years old. You do not suffer from any psychological illness and have been physically fit and active in your community.

32 You are engaged to be married to Celeste Castillo with whom you were living at the property you are purchasing together. She is a child care worker, studying counselling at university and she looks forward to your life together upon your release.

33 Your father is a welder who works as a printer and your mother a nurse. You were educated to year 10 level and attended Frankston TAFE for a pre-apprenticeship course before undertaking an apprenticeship in carpentry.

34 Tendered references speak highly of your family and mention your close association with your father. They describe you as honest, hard working and well regarded in your family and in the community. Your former employer and others associated with you in your sub-contracting business praise your trade and personal skills and promise work, friendship and support after your release. Your offending has shocked your father and others and is described as totally out of character. You have no previous criminal history.

35 This general support, your good prospects of future employment and the promised continuing support of Ms Castillo bode very well for your rehabilitation prospects.

36 You are said not to have a drinking problem nor to be a drug taker. Drug screening in custody has shown negative results. You have also taken the opportunity to complete conflict and mood management programs, as well as an 'Alcohol and Me program', and you have obtained a TAFE certificate for asset maintenance cleaning operations.

37 You are a relatively young man who has previously been of very good character with a solid history of achievement at work and in your personal life. You have been involved with your local community through cricket and voluntary work. You were only 22 years old when you committed this, your first offence.

38 You have been serving your time in custody in protection. This is relevant to your sentencing[2] in terms of the source of the need for protection, the circumstances in which you are detained and the likely duration of restrictions on you.

39 Mr Croucher informed the Court that you were under protection because of some threatened reprisals early on in your time in custody. He said that your time in prison had not been easy.

40 The Court sought information as to the source of the need for protection, the circumstances of your detention and the likely duration of the protective custody. In an affidavit sworn on 23 September 2011 , Brendan Francis Money, Acting Deputy Commissioner, Operations of Corrections Victoria, deposes that you told authorities that you needed protection from part of the prison population and protection was deemed appropriate for you.

41 As to the circumstances in which you are detained, Mr Croucher mentioned in the plea that you had been occupying your time working as a unit billet. Mr Money deposes that you have lost the unit cleaning billet. I mention this only because it was raised in submissions and make it clear that I draw no inference adverse to you as a result of the changes with regard to the billet work.

42 You have been held in the Deakin B Protection Unit at the Metropolitan Remand Centre.

43 Mr Money states that, once you are sentenced, your status will be reviewed and your need for continuing protection considered. He is not able to state the outcome which will be assessed in the particular circumstances you face (including the length of your sentence).

44 As to the likely effect on your prison experience, Mr Money says, by way of overview, that since the mid 1990s, prison facilities have been built in 'unit accommodation' style, allowing authorities more flexible control and full access to prison services and programs for the increasing number of prisoners under protection. I have been informed by counsel on your behalf this morning that there have been restrictions on your ability to use outdoor recreational facilities including the gym.

45 I take these relevant matters into consideration when sentencing you.**

**46 Unfortunately, courts are too often obliged to repeat the statement that young men must be deterred from alcohol-fuelled violence. General deterrence is therefore an important sentencing objective and conduct such as yours which involved the taking of a life must also be denounced as totally unacceptable.

47 The courts have made it clear that, whilst general deterrence is an important sentencing objective, your youth makes your prospects of rehabilitation a primary sentencing consideration.[3] I am mindful, too, that this is your first criminal offence.

48 I accept that it may be said that your object was to prevent rather than make trouble, but it is also necessary for you to be deterred from similar behaviour in the future and to receive a just punishment. I take your expressions and other demonstrations of remorse and your co-operation with police into account generally and, in particular, in relation to your need for specific deterrence.**

**49 I have been referred to a number of sentences imposed in cases of defensive homicide where the accused has pleaded guilty. Citing DPP v Edwards,[4] counsel for the Crown submit that they are of limited use, given the small number of such offences and the absence of a settled practice. Nevertheless I note, as Hansen AJA pointed out, that the Edwards sentence (imposed in July 2008) was only the second for the relatively new statutory offence and the sentencing practice in relation to defensive homicide cases was then in its infancy.[5] That situation has obviously now changed to some extent and I have had regard to the sentences to which I have been taken.[6]

50 Counsel on your behalf submit that your offence should be regarded as at the bottom end of the mid-range of seriousness of the offending disclosed in those cases. They rely upon the relative spontaneity of your acts, which were also less frenzied or sustained than some others. They also point to your lack of prior convictions.

51 The Crown submits that your sentence should be of some magnitude. They agree with the defence submission that the case falls within the mid range of seriousness, but urge the Court to remember the circumstances of the offending, the importance of recognising the sanctity of human life and the need for general deterrence and denunciation. Counsel rely in this regard on community concern about young men wielding knives when engaged in alcohol-related violence.

52 I agree with counsel that your offence does fall within the mid range of seriousness. Whilst your attack may be contrasted with others more frenzied or less spontaneous, you have stabbed Dylan Casey not once, but twice, with moderate force into the chest and abdomen, with the intent required for murder, albeit with the requisite belief that it was necessary to do so to defend your father. You were responding to a situation in which Dylan Casey and his group were unarmed, he had not hit your father and neither he nor members of his group had made express verbal threats to you or your father.**

53 Taking into account all the circumstances and the matters to which I have referred, I sentence you to eight years' imprisonment with a non-parole period of five years. The minimum term is imposed to recognise your relative youth and your good prospects for rehabilitation with the benefit of supervision for a period which is longer than has been imposed in a number of the cited cases.

S 6AAA Sentencing Act 1991

54 I am required to make a declaration under s 6AAA of the Sentencing Act 1991 as to the sentence I would have imposed had you not pleaded guilty. This is difficult because your plea evidences factors such as remorse and your prospects of rehabilitation.[7] I indicate that I would have sentenced you to ten years' imprisonment with a minimum term of seven years if you had not pleaded guilty to the offence.

55 You have been in custody since 24 January 2010 and have served 611 days (not including today) of pre-sentence detention which I direct shall be reckoned as time served under this sentence under s 18 of the Sentencing Act 1991.

[1] R v Baxter [2009] VSC 178 [10] (Kaye J).

[2] See R v Males [2007] VSCA 302

[3] See R v Mills [1998] 4 VR 235, 241 (Batt JA. Philips CJ and Charles JA agreeing).

[4] [2009] VSCA 232.

[6] R v Smith [2008] VSC 87; R v Edwards [2008] VSC 297; R v Edwards [2009] VSCA 232; R v Giammona [2008] VSC 376; R v Smith [2008] VSC 617; R v Tabia [2008] VSC 589; R v Baxter [2009] VSC 178; R v Trezise [2009] VSC 520; R v Spark [2009] VSC 374; R v Wilson [2009] VSC 431; R v Wilson [2011] VSCA 12; R v Evans [2009] VSC 593; R v Black [2011] VSC 152; R v Ghazlan [2011] VSC 178; R v Martin [2011] VSC 217.

[7] See R v Baxter [2009] VSC 178 [27] (Kaye J).