R v Lovett [2008] VSC 60

**3 The evidence suggests that you and Mr Sherri did not get on very well although I am not satisfied that your conduct leading to the death of Mr Sherri was directly related to such feeling. It is the case that a few days before Mr Sherri's death there was a dispute of some sort between you over drinks being shouted when the deceased later went to your premises for the purpose of purchasing cannabis from you. In aggressive terms you were heard to tell the deceased to leave your premises "... before [you] slit [his] throat". In view of what happened three days later, the words used were unfortunate but, of course, the Crown does not contend that the act which caused the death of Mr Sherri was done in any way in furtherance of that threat.

4 At about 5:00 pm on 28 May 2007 you were at the Foodworks supermarket in Myers Street, East Geelong, when you were confronted by Mr Craig Blatchford. Mr Blatchford maintained a relationship with a former girlfriend of yours and was the father of her child. You had lived with her and the child for a considerable time until she decided to reunite with Mr Blatchford after his release from prison. You had apparently not met Mr Blatchford before, but you were aware of some hostility on his part toward you.

5 The evidence indicates that in the supermarket you were threatened by Mr Blatchford and the encounter between you and Mr Blatchford is recorded on closed circuit television (CCTV). Mr Blatchford apparently confronted you and you maintain that he had a knife at the time, although that cannot be verified by viewing the CCTV footage. After Mr Blatchford had left the supermarket, and thinking that he may be outside waiting for you, you purchased some items including a paring knife. It does not seem to be in contention that you purchased the knife as a result of the confrontation with Mr Blatchford and with a view to protecting yourself.

6 After this incident you were walking back towards your residence at 2 Warren Street, Thomson. Your route to that address took you past the public phone box at the intersection of Breakwater Road and St Albans Road, Thomson. There you came across Mr Thomas Williams (who was a friend of both you and Mr Sherri). You spoke to Mr Williams and told him that some minutes ago you had almost been stabbed, describing to him what had occurred in the supermarket with Mr Blatchford.

7 Whilst that conversation was occurring, Mr Sherri had been trying to make contact with his mother by use of that public telephone. The deceased, who was drunk,[1] put the phone down and said to you, "Ah hah". Then, having been ignored by you, said, "So you are going to slit my throat are ya". You said, "Nah, you're alright mate, I just don't want to know ya". At that point Mr Sherri moved forward and pushed you with two hands. He also endeavoured to punch you but missed. You then struck the deceased with the hand which was holding the paring knife, which resulted in Mr Sherri being stabbed once in the neck.

8 In the course of submissions an issue arose as to whether or not I should act on the basis that you realised that Mr Sherri was drunk at the time that you stabbed him. Before I could act on the basis that you were aware not only that Mr Sherri was drunk, but the extent of his drunkenness, I would need to be satisfied as to that fact beyond reasonable doubt.[2] Whilst some level of intoxication may have been apparent to you, I am not satisfied beyond reasonable doubt that you realised the extent of his intoxication. On any view, the incident leading to the death of Mr Sherri had developed quite quickly.

9 After you had stabbed Mr Sherri, you left the scene whilst Mr Sherri sought assistance in the "Food Shop" milk bar, located at 2 Breakwater Road, requesting that an ambulance be called. About a half hour after the incident, Mr Sherri died as a result of the wound that you inflicted on him.

10 Over the next two days, having disposed of some items and washed the clothing you had been wearing at the time of the stabbing, you spoke to several people about what had happened. You told them that you had intended to punch rather than stab Mr Sherri. You also said the knife was only purchased by you because of the threats from Mr Blatchford.

11 Three days after the incident you were arrested and later interviewed. At that stage you exercised your right not to answer the questions asked of you by investigating police.

12 On your behalf, Mr Drake of counsel submitted that there were several aspects of what occurred which reduce your culpability. Firstly, he referred to the circumstances of the crime. As he submitted, you did not initiate any conflict with Mr Sherri, and you lacked any intent to kill or cause really serious injury. The learned prosecutor pointed out during submissions that no question of self-defence arises because if it did, then such a defence was open to you in answer to the count of manslaughter. Further, it should be noted that your plea of guilty carries with it your realisation that by your act, particularly the act of endeavouring to strike Mr Sherri whilst holding the paring knife, you were exposing him to an appreciable risk of serious injury.

13 Mr Drake also submitted, and I accept, that the circumstances indicate that there was no premeditation or planning by you in committing the offence. As he put it, this was a chance medley. As I have just noted, the Crown accepts, and your plea reflects, that you were not intending to inflict really serious injury or to kill the deceased. There was no sustained attack by you on the deceased but rather only one blow made with the hand in which you were carrying the paring knife. Neither the verbal exchange between you nor the physical altercation was initiated by you. Rather, the deceased appears to have initiated the incident whilst intoxicated. He failed in his attempt to strike you and had you not retaliated, this disaster would, in all likelihood, have been avoided.**

**14 Victim impact statements were filed by the learned prosecutor on behalf of the following individuals: Ms Kimberly Fischer (cousin of the deceased); Mr Shane Day (step-father of the deceased); Mr Danny Sherri (father of the deceased); Ms Kathy Geisler (aunt of the deceased); and Mrs Deborah Day (mother of the deceased). Ms Fischer read her statement in court, and Mr Gibson read Mrs Day's statement before me.

15 The position of members of the family of Mr Sherri is, I realise, extremely difficult and traumatic. For them, whatever occurs in this court will in no way make up for the loss of Mr Sherri, who was obviously a very dearly loved member of the family. I have used the admissible portions of the victim impact statements to identify the effect of the offence to which you have pleaded guilty on Mr Sherri's family. I have no doubt of the fundamental and traumatic effect of the death of Mr Sherri on those family members.

16 As the authorities make clear,[3] the sentence I impose on you must be one which is just in all the circumstances. Whilst the impact on Mr Sherri's family is to be taken into account, there are also a number of other factors and principles which I must consider in imposing a sentence on you.**

**17 You are now 27 years of age. You were born in Geelong, your mother being of Italian origin and your father of indigenous origin. Your education was in the Geelong area until the age of 15 years when you left school. As your counsel, Mr Drake, submitted, education for you was "problematic". In a report of clinical psychologist Mr Bernard Healey, your full scale IQ is assessed at 74, placing you in the 4th percentile, where 96 per cent of people your age do better than you. You are intellectually disadvantaged.

18 During your time at school, the education system seemed to have ignored the reality that you could not read or write, and you graduated from primary to secondary school despite having that fundamental problem. In Years 7 and 8 you remained illiterate and non-numerate and clearly struggled with education generally.

19 Whilst you were good at sport, your schooling finished at the age of 17 years. You have held jobs in carpet cleaning and metal work and you have also attempted to improve your literacy and numeracy skills. At the time of this offence, you were working with Glass Metal Industries and evidence was given about your very satisfactory performance as an employee by the general manager, Mr Adam Morgan who said he had contact with you over a period 4 years. He said that if it were up to him he would re-employ you and you were a good employee.**

**20 The law has long recognised a body of principles applying to youthful offenders generally, including offenders over the age of 21 years at the time of sentencing. In R v Mills, in the Court of Appeal, Batt JA noted that an offender over the age of 21 "is to be treated as youthful" for the purposes of sentencing.[4]

21 The Court of Appeal endorsed several propositions relevant to the sentencing of youthful offenders. These propositions included the following, as outlined by Batt JA:**

(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.) ...[5]

**22 In later cases the Court of Appeal has stressed that these are only general propositions, and that each case depends upon its own circumstances, including the circumstances of the offence and those of the offender.[6] Other sentencing considerations may outweigh the rehabilitation of a youthful offender. Furthermore, as the age of the offender in question increases, the force of the propositions diminishes.[7]

23 It is recognised that where, in all the circumstances, it is appropriate to impose a custodial sentence, the age of a youthful offender may still have a moderating effect on the sentence. However, in the case of manslaughter these propositions are often outweighed by factors such as deterrence, condemnation and just punishment:**

The crime of manslaughter to which each has pleaded guilty can arise in many different circumstances and the criminality attached to its commission can vary correspondingly. In consequence, a wide range of penalties have been imposed.__[8]

24 In your case, I do consider that your youth, combined with a significant level of intellectual disadvantage as I have described, should both have a moderating effect on the sentence to be imposed. That also supports the submission made on your behalf that a longer than usual period of parole will assist to capitalise on the rehabilitation to that point and assist you to embark on a productive and law-abiding life.

**25 Mr Drake has submitted that you show real prospects of rehabilitation, and there are no indications that you are likely to re-offend in the future.

26 In particular, Mr Drake relies on the evidence of Mr Krakouer who is the Aboriginal Wellbeing Officer at the Metropolitan Remand Centre. You have been in custody since June 2007 and Mr Krakouer has seen you two or three times per week during that time. In custody, within two months of arriving at the Metropolitan Remand Centre, you have worked in the metal work area and have participated in programs including concerning indigenous cultural programs, including programs aimed at strengthening resilience and taking responsibility. These sound like very worthwhile and valuable activities. Mr Krakouer described you as quiet and there have not been adverse incidents involving you in custody.

27 I agree that your prospects for rehabilitation appear to be positive and you are to be encouraged to continue with the programs you have already commenced.**

**28 I heard evidence from members of your family, including your grandfather Mr Nevio Satlio and your step grandmother, Ms Yvonne Stalio. Your aunt, Ms Susan Lovett, also gave evidence. This evidence, though brief, was significant because it demonstrated a level of family support which is, and will be in the future, important to you.

29 Overall, the evidence called on your behalf persuades me on the balance of probabilities that you are not a person of violent disposition and your conduct on this occasion was explicable initially by you fear of attack from Mr Blatchford. However it must be demonstrated to you and others that arming with weapons such a knives is not and never will be acceptable.**

30 Mr Drake has submitted on your behalf that since you discovered that you had caused the death of the deceased, you have been "deeply distressed", and that you are now showing symptoms of depression. Mr Krakouer, in his evidence, referred to your display of "a fair amount of remorse" and your concerns about Mr Sherri's family. I accept that your remorse arises from your understanding of the effect that the incident has had on the family and friends of Mr Sherri and also from the reality that you had not planned to harm him.

**31 Pursuant to the Sentencing Act 1991 (Vic), I am required to consider your plea of guilty and the stage of the proceedings at which that plea was entered. Unlike some, this case does not have a long history. The death of Mr Sherri occurred less than 12 months ago. You were charged with murder and I proceed on the basis that the first opportunity you had to plead guilty to manslaughter was shortly before you did so on 18 February 2008.

32 It is, I think, appropriate to regard your plea of guilty as a sign of remorse on your part when considered with the other evidence. I also take into account the fact that the family of the deceased would not be put through the trauma of a trial and the fact that public cost has been saved by your plea.**

**33 While you have admitted some prior convictions, I recognise that these offences were committed quite some time ago, and none involved violence. However, the evidence indicates that in 2001 you were convicted at the Bendigo Magistrates' Court of being in possession of a controlled weapon without excuse and fined $300.00. The record suggests that you told the police that you were carrying the knife for protection. On your behalf, I am told you have no memory of saying that and that the knife was for fishing. You have not sought to contest the assertion of what you told the police officer and I act on the basis that you did say the knife was for protection. You must understand that arming yourself with dangerous weapons for that purpose is completely unacceptable and may well lead to tragedy. That is what has happened in this very case.

34 However, I am satisfied you are not a person of violent disposition and I do not consider that what you said to the police officer demonstrates otherwise.**

**35 In his submissions made before me on your behalf, Mr Drake of counsel accepted that a sentence of imprisonment is inevitable. However, he urged me to consider a shorter non-parole period than would ordinarily be imposed. My impression from the evidentiary material is that this case is, for you, a turning point.

36 However, this offence involved the fatal use of a knife on a public street. The sentence I impose on you needs to be one which deters both you and others from taking possession of dangerous weapons with a view to using them as required in the event that a threatening situation occurs. This is a very serious offence.

37 I declare that 281 days is the period of pre-sentence detention. I direct that be recorded. For the manslaughter of Mr Dwayne Daniel Sherri I impose a sentence of six (6) years imprisonment and I fix a non-parole period of three (3) years. I have signed the forfeiture and retention orders sought by the Crown which you did not oppose.**

I certify that this and the 108 preceding pages are a true copy of the reasons for Sentence of Lasry J of the Supreme Court of Victoria delivered on 7 March 2008.

[1] On autopsy the deceased was found to have a blood alcohol content of 0.16 per cent.

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

[3] R v Dowlan [1998] 1 VR 123 at 140 (per Charles JA); R v Hester [2007] VSCA 298.

[4] (1998) 4 VR 235 at 241.

[6] See, eg, R v Bell [1999] VSCA 223 at [14] (per Batt JA); DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125.

[7] R v Mills (1998) 4 VR 235 at 241.

[8] DPP v SJK & GAS [2002] VSCA 131 at [61].