R v Martin [2011] VSC 217

1 Justin Dennis James Martin, you have pleaded guilty to one count of defensive homicide and have admitted prior convictions.

2 The deceased, Alan Baker, was 79 years old. He lived on his own in Murtoa and would daily frequent the local hotel to have his midday meal and bet on the TAB. You and he became friendly in the six months or so prior to January 2010.

3 On Wednesday 27 January 2010, at around 4.00pm in the afternoon, you went to the home of the deceased. According to you, Mr Baker had previously invited you to visit him earlier in that week. Together, you drank some beer and watched tennis on the television. It appears that your father rang you at approximately 5.20pm because you had not been to his home for dinner as was your custom, and you told him that you were at Mr Baker's. Your father could hear Mr Baker's voice in the background, saying that you were just playing music and having a beer. At some point in the late afternoon/early evening, you went to the local hotel and tried to cash a cheque to buy some beer, but the licensee refused to do so and you left empty-handed.

4 Later, during the night, you contend that Mr Baker made sexual advances to you, and it was in these circumstances that you "king hit" Mr Baker and kicked him in the head and stomach and, you told the police, stabbed him twice. After the assault, you sought the assistance of various neighbours. You knocked on the door of the house where Courtney Foreman lived. You spoke with her and told her that you had bashed Alan because he tried to rape you. You told her that you had hit him and that you thought he was dead. You also spoke with Robert Nikkelson, asking him to go with you to Alan Baker's place, and you also went to the home of Paul Delahunty and told him that you had "punched up Bakes", as you referred to him, and that you thought you had killed him. You also said to Mr Delahunty that you had told Mr Baker that he (Mr Delahunty) was coming over, and you asked him to come with you. Mr Delahunty did go with you to Mr Baker's house and saw Mr Baker lying naked on his back on the floor of his bedroom. It appeared to him that Mr Baker was dead. Mr Delahunty advised you he was going to ring the police and call an ambulance. He returned to his house, where his wife was already on the telephone. At this point, you ran off, and when Mr Delahunty came back out onto the street, he was met by two of the other neighbours with whom you had spoken earlier, and it was at that stage you returned. The police arrived shortly afterwards and you were taken into custody, and the ambulance officers subsequently attended and determined that Alan Baker was deceased.

5 You were interviewed by the police in the presence of an independent third person. You told them initially that you accidentally did you what you did, but as the interview progressed, you became more forthcoming. You described what occurred and you told the police initially that you went to see Mr Baker, had a few drinks and "He tried to touch me up and I said no and then he tried to again and then things got out of hand. I said no and then he wanted more and I said no. So I hit him and then there was blood everywhere and I panicked and I went over to his next door neighbour to see if they would come and help" (question 40). You also told the police that Mr Baker was always saying, "Get in the nude", or "Sit with me in the nude" and you would say "No", and "Then he came over and started playing with me and I get uncomfortable and that because I say no and that's what happened tonight. He went too far and I went too far" (question 124). You also told them at question 136, "He just touched me and tried to get me and that to do things to him and I was sitting at the chair having a beer and he was flashing himself, rubbing himself against me. I didn't like it and then I went to the toilet, he followed me and then he tried to get me in bed, I probably stabbed him twice I think and that was it, and then I hit him and that was it".

6 You also told the police at question 165 that Mr Baker started grabbing you inappropriately and, at question 166, that Mr Baker tried to get you to take your shorts off and that he started touching you "down between the legs and I said not to and he kept on doing it and I didn't want it. He sat on top of me and I got sick of it and I told him not to and the more he done it the angrier I got". At question 294 you told the police that he was touching you inappropriately, trying to do things "he shouldn't do". You told the police that Mr Baker wiped himself against you, you told him not to do it, and the more you told him not to do it, he would say it was a normal thing to do. You also told the police at question 125 that you went to the toilet and Mr Baker followed you and started playing with you again, and you said no and then "I pushed him and then he got up again and started again, and then I pushed him again and then I king hit him and he was on the ground. He grabbed me again and started again so I kicked him and I would've kicked him in the head. He got back up and I hit him, king hit him and then there was a desk and he hit that and then he was unconscious". You also said that Mr Baker pushed you into his bedroom and "Then I was on the bed and he tried and that's when I lost it" (question 178). "I said no. The more I said no, the worse he got" (question 179). The police asked you, "Did he at any stage rape you?", and you replied, "He tried but he would've if I didn't do what I done", and you were asked, "Could you have just walked away?", and you said you were angry. "I just had enough what he was doing and that 'cause he wanted me to sleep with him and that and I said no" (question 325).

7 Your answers in the record of interview are supported, to a degree, by other evidence. An examination of the shorts you were wearing determined the presence of a projected blood stain which matched the profile of the deceased. It was located on the inside of your shorts, and in the analyst's opinion, the stain could not have been deposited if the shorts had been worn in the normal manner. Spermatozoa was detected on a sample taken from the deceased's penile area which also matched his DNA profile. The statement of Mr Y, who spoke to the police after his wife had contacted them, having learnt of Mr Baker's death, alleges that the deceased sexually abused him from the ages of 10 to 14 when Mr Baker would have been in his early 30s. Although the allegations are untested, they were unsolicited and may be said to support the credibility of your answers in the record of interview where you allege that Mr Baker attempted to rape you. You also, at the first opportunity, that is, when you spoke with Courtney Freeman, said that Mr Baker had tried to rape you.

8 A post-mortem was conducted by Dr Marion Wang on 29 January 2010. Dr Wang determined that the cause of death was as a result of a combination of injuries, including the stab wounds and blunt force trauma to the face and head. The autopsy revealed seven distinct stab wounds; one to the right side of the neck, four to the anterior chest wall, one to the abdomen and one to the back. The stab wound to the right side of the neck penetrated the internal jugular vein. Of the four stab wounds to the anterior chest wall, one of them penetrated the left lung and heart. The stab wound to the back penetrated the spine and the back of the heart, and the result of these wounds was extensive bleeding. In the pathologist's opinion, the stab wounds in particular to the chest may not necessarily have been immediately incapacitating. The deceased also bore defensive type injuries to the neck, chest, upper and lower limbs. As there were not many in number, in the pathologist's opinion, they indicated that the deceased may have been relatively quickly overwhelmed or for some other reason was unable to more effectively defend himself. In the pathologist's opinion, it was not possible to determine the order in which the injuries occurred, other than to say that they occurred while the deceased was still alive. Toxicology reports indicated the presence of alcohol in the blood of the deceased at the level of 0.117 grams per 100 mls.

9 The Crown case is that Mr Baker was stabbed and beaten by you and, that in inflicting those injuries and wounds, you had the intention to either kill him or to cause him really serious injury. Indeed, by your plea of guilty, you acknowledge this intention. The Crown accepts that when the injuries were inflicted, you believed that what you were doing was necessary to defend yourself from really serious injury, in that you believed the deceased was trying to rape you. The Crown considers that your intellectual disability was at least partly responsible for you holding this belief. By your plea to defensive homicide, you have acknowledged that you had no reasonable grounds for that belief.

10 A report by Dr Danny Sullivan, consultant forensic psychiatrist, was tendered in evidence on your behalf as Exhibit "1", as was a report by Carolyn Stow, case manager, Disability Client Services, dated 29 March 2010, Exhibit "2", and a psychological assessment by Mr Robert O'Brien dated 20 April 2005 tendered as Exhibit "3". Each of those reports details matters personal to you, which I accept.

11 You are 30 years old, the youngest of four children. You have three older sisters, none of whom suffer any disabilities, and you come from an otherwise law abiding family. You and your parents live in Murtoa. Indeed, you were born there at the local hospital. At your birth, you suffered a lack of oxygen for approximately six to eight minutes, and it was not until you attended the Murtoa Primary School that you were identified as having serious learning difficulties. Throughout your schooling, you had the benefit of a one to one integration aide. You completed your secondary education at the Murtoa Secondary School to Year 8, which you repeated. In 2001, you were assessed as having an intellectual disability, under the Disability Services Act, and you have been in receipt of a disability pension since you were 16. You left school in 1995 and have worked with your father, training horses, and between the ages of 16 and 25, engaged in unskilled activities such as washing shop windows, sorting recycled clothing and mowing lawns at three sheltered workshops at Warracknabeal, Stawell and Horsham. You live independently in the sense that you live on your own in a flat in Murtoa, 150 metres from your parents' home, but you have lunch and dinner with your parents every day and they assist you with the shopping and paying your bills.

12 A psychological assessment conducted in April 2005 (Exhibit "3") assessed you as having a full scale IQ of 59. Your intellectual functioning was described as in the extremely low range. The report of Ms Stow (Exhibit "2") details your involvement with Disability Client Services. In 2001, you were assessed as functioning within the mild borderline range of intellectual disability and you were re-assessed in 2006 and determined to be functioning within the lower mild range of intellectual disability. Ms Stow, in her report, refers to your diagnosis of Marfan Syndrome, with which you were diagnosed in 1996. Ms Stow reports that, according to the Encyclopaedia and Dictionary of Medicine, Nursing and Allied Health 1998, Marfan Syndrome is defined as "a hereditary disorder of connective tissue characterised by abnormal length of extremities, especially of the fingers and toes, subluxation (incomplete or partial dislocation) of the lens, congenital anomalies of the heart and other deformities". At the time of that report in March 2010, you were also assessed as experiencing bouts of depression, suffering a heart murmur and osteopenia of the spine, long-sightedness and presenting with low self-esteem, said to be not uncommon for people with Marfan Syndrome. In Ms Stow's opinion, you have marginal cognitive abilities in that you are able to recount personal information, tell the time and have basic literacy and numeracy skills. You were formally assessed in 2005, and it was determined that you had a reading ability age then of around six years an accuracy of around six years and ten months, and comprehension between seven years and seven months and nine years and four months.

13 You have, since first coming into contact in 2001 with the Disability Client Services, engaged with them on a number of occasions. You were case managed until March 2002. In 2004, you were again assessed for case management support upon your discharge from the Ballarat Acute Psychiatric Centre, and this support continued in various life skill areas until March 2009.

14 Dr Sullivan opined that your intellectual disability is solidly in the mild range, and this is apparent not only on psychometric testing, but also when considering your level of adaptive functioning and clinical presentation. You have also, over a number of years, been periodically diagnosed with depression and you present with longstanding evidence of alcohol abuse and likely dependence. In Dr Sullivan's opinion, your behavioural self-control on this occasion was likely to have been impaired by alcohol intoxication and your intellectual disability. You acknowledge to Dr Sullivan that your actions had led to the death of Mr Baker, but described to him that you were fearful at the time.

15 Your father, Dennis Martin, gave evidence on your behalf. He described Marfan Syndrome, as he understood it, as a condition where your skeletal frame outgrows your organs and, accordingly, as he understood it and stated, your aorta could burst at any time and you could go blind at any time. Your father said that you suffer curvature of the spine, and it appears to him that you had grown some two inches since you have been in custody. When taken into custody, your height was measured at six foot, seven inches. Mr Martin said he understood that you were still growing, and that you have a growth spurt every two years which can last between three to six months and, in that time, you become agitated and very moody, and in his opinion, your past criminal history has coincided with such growth spurts.

16 Your father gave evidence that you lived with your parents up until the age of 25. You then lived with a woman in Horsham for a couple of months, but that did not work out, and that you now live independently in Murtoa, although you are considerably supported by your parents. Mr Martin described you as a person well known in Murtoa, where you felt safe because everyone knew you, but that you were a person with few friends. In his opinion, you functioned at the level of a 10 to 12 year old and your ability to make friends operated at that level. He describes you as a loving son and uncle, but that you become upset at the thought that you are never going to have a family or a steady relationship with a girl, and that you think you are not normal because you are not like your sisters.

17 Your father also gave evidence that you have attempted suicide on four occasions and have been hospitalised on a number of occasions at the Ballarat Psychiatric Hospital, although in his opinion it appeared that little could be done for you. You have been on antidepressants, he said, for eight to ten years, and he described that as being 90% successful. In his opinion, alcohol has been a problem for you since you were 21 and you have had various stints at Palm Lodge in Horsham, an alcohol and drug dependency rehabilitation centre. You are inclined to binge drink, and will become intoxicated after two or three pots of beer. Mr Martin said in January 2010, alcohol was an issue for you.

18 Your father knew of your friendship with Mr Baker, but he did not approve of it. You told the police that Mr Baker invited you around "heaps of times at his place" (question 123) and that you only wanted to be his friend and that you kept going back because you were "lonely and I thought he was lonely ... because I haven't got no friends" (question 274).

19 Your father describes you as very clean, neat and tidy in your habits; you are presently housed at the Marlborough Unit in Port Phillip Prison, which is a unit for the intellectually disabled. It is said that you are coping well with the structure of prison life, you have the assistance of another prisoner who is designated as your stabiliser. It appears that you are able to cope with a settled environment, and your father said that you do not cope well with change, becoming nervous and agitated.

20 Alan Baker was single. He had lived in Murtoa all his life. Noel and Marlene Baker, one of the deceased's brothers and sister-in-law, live in Boort. They were close to the deceased and, for that reason, felt unable to make Victim Impact Statements, but Victim Impact Statements were made by Mr Baker's brother, John Baker, and sister-in-law, Doreen Baker, and tendered in evidence as Exhibits "C" and "D". They each speak of the shock and emotional trauma that they have suffered as a result of Mr Baker's "untimely and violent death", and that Mr Baker was regarded as a kind, caring and generous man who cared for his elderly parents, his elderly aunt and another brother in his last years. They have each experienced sorrow and anguish at the loss of their brother and brother-in-law, and no sentence this Court can impose can restore to them their loved one.

21 The maximum penalty for the crime of defensive homicide is 20 years' imprisonment. Clearly, Parliament regards it as a serious offence, requiring as it does an intention to kill or to cause really serious injury on your part. Any sentence I impose must take into account the nature and gravity of the offence here committed, which involves the loss of life as a result of a violent attack upon the deceased when you kicked him and struck him with a knife up to seven times. You were 29 and a very tall man; the deceased was smaller and very much older and, it appears, was little able to defend himself. In those circumstances, I regard this as a serious instance of the crime of defensive homicide. Mr Stuart submitted that, given your low IQ, you were a vulnerable man, particularly when confronted by someone who was attempting to anally penetrate you, and that Mr O'Brien's assessment of you as a person who would experience difficulty in sustaining attention and concentration, with poor short and long-term memory, easily distracted, prone to anxiety, finding it difficult to change tasks, process low receptive acquired language and comprehension skills and with inadequate self-monitoring skills, is such that you were indeed vulnerable and placed in an invidious position which even those with a full capacity would find difficult to deal with. Mr Stuart submitted that you were entitled to defend yourself, having formed the belief that you were facing an attack which involved an attempt to cause you at least really serious injury because you believed Mr Baker was trying to rape you, but that you did not have reasonable grounds for the level of violence you did inflict upon him.

22 It is not disputed that the principles of Verdins and Tsiaras' case are here applicable, but Mr Kissane, who appeared on behalf of the Crown, submitted that the reduction in your legal and moral culpability has been reflected in the acceptance of a plea to defensive homicide as opposed to murder with which you were originally charged, and that to further take account of a reduction in your moral responsibility would amount to double counting.[1]

23 Mr Stuart, in response, submitted that the submission was superficially attractive but fundamentally flawed, and to proceed on that basis would necessitate looking behind the indictment and invite speculation, would blur the lines between executive and judicial function, and would mean that an offender would effectively be sentenced for a more serious offence, here murder, than that with which he is charged. Reliance was placed upon the authorities of R v Newman and Turnbull,[2] and R v De Simoni.[3]

24 I reject the Crown's submission. In determining whether to file an indictment, the Director must have regard to (a) the complexity of the case; (b) the seriousness of the alleged offence; (c) any particular importance attaching to the case; and (d) any other consideration that the DPP considers relevant.[4]

25 Further, in the performance of his functions, the Director must have regard to (a) the considerations of justice and fairness; and (b) the need to conduct prosecutions in an effective, economic and efficient manner; and (c) the need to ensure that the prosecutorial system gives appropriate considerations to the concerns of victims of crime.[5]

26 In the exercise of those powers, the Director has filed over an indictment alleging one count of defensive homicide. His reasons for doing so are not available to the Court other than, as Mr Kissane has indicated, the Crown has taken the view that your intellectual disability was relevant to the issue of the reasonableness of your belief in all the circumstances.

27 There are any number of reasons why the Director should determine to file an indictment alleging defensive homicide, guided by the principles enunciated by legislature and, indeed, to speculate about the possibilities exposes the folly and futility of seeking to go behind the indictment. The Director's reasons for accepting a plea to defensive homicide may be many and varied, but it is entirely a matter for him in the proper exercise of his function. It plays no part in the sentencing function and, if it were otherwise, one would expect the Sentencing Act to say so; it does not. The sentencing function resides in the Court, and the sentencing judge is, in the words of Winneke P in R v Newman and Turnbull, "entitled and indeed bound to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged".[6] In those circumstances, the decision of the Director to file an indictment alleging one count of defensive homicide and to accept a plea to that charge in resolution of the matter does not eliminate or obviate the necessity to give due weight to your moral and legal responsibility as enunciated in Verdins' case in the sentencing process.

28 I am satisfied that the principles of Verdins and Tsiaras' case are here applicable and operate to reduce your moral culpability by reason of your intellectual disability, your ability to exercise appropriate judgment and to make calm and rational choices, or to think clearly must have been affected, although Mr Stuart conceded that the four light beers you said you consumed would also have had an affect upon you. Accepting as I do that your moral culpability for the killing of Mr Baker is significantly reduced, it follows that your intellectual disability will also affect the punishment which is just in all the circumstances and denunciation is less likely to be a sentencing objective.

29 Mr Stuart submitted that Mr Baker must have regarded you as a person whose vulnerabilities he could exploit, and that that of itself demonstrates that you are not an appropriate vehicle for general deterrence. I do not accept that submission; after all, you told the police you visited Mr Baker because you were both lonely, but I do accept that, by reason of your disabilities, you are in fact a vulnerable person and that in these circumstances, your disabilities being such that you are not an appropriate vehicle for general deterrence.

30 Mr Stuart conceded that specific deterrence is relevant to the sentencing process, and this must be so. You have 13 prior convictions and matters secured between 2005 and 2008, which include a conviction for assault with a weapon, recklessly causing injury and unlawful assault. Although your prior criminal history is modest, it does include relevant offences, so that any sentence imposed must seek to specifically deter you from re-offending, although I accept that, by reason of your intellectual disabilities, specific deterrence, although relevant, may be given less weight than would otherwise be the case.

31 Your counsel has also submitted that by reason of the diagnosis of Marfan Syndrome, any sentence imposed may weigh more heavily upon you. I accept that, by reason of your intellectual and physical disabilities, imprisonment may weigh more heavily upon you, but it does appear that, presently, you are well managed within the prison system and coping with it, and I would recommend that the prison authorities continue to provide you with appropriate specialised management and care.

32 Mr Stuart also submitted that you have the continued support of your parents, who are aged 61 and 65, your family and the community of Murtoa, and that you will be able to return to live in the town, supported by a supervised period on parole and, for these reasons, a lower than usual minimum term should be fixed. A non-parole period must be fixed according to what is just in all the circumstances of the case, and certainly with the support of your family in particular, your prospects for rehabilitation within the confines of your disabilities is not without hope. I note in this regard that while in custody, you have participated in literacy courses, gardening, occupational health and safety and cooking courses.

33 In sentencing you, I take into account your plea of guilty and give you a discount for it. I take into account that at an earlier time you offered to plead guilty to manslaughter, so that you have acknowledged your responsibility for the death of Mr Baker from an early stage. I take into account that, by reason of your plea, you have saved the community the cost of a trial and Mr Baker's family the ordeal of one, particularly when it may have necessitated litigating matters which the family would no doubt regard as distasteful, to say the least.

34 I take into account also that you are remorseful for your conduct and that in the record of interview you acknowledged the wrongfulness of your conduct. I take into account your age, your physical and intellectual disabilities, and the applicability of the principles of Verdins and Tsiaras' case. I take into account also that you will be serving a sentence of imprisonment for the first time. In short, I take into account all matters which go in your favour. Against these matters stand the nature and gravity of the offence here committed which resulted in the untimely and violent death of Mr Baker, the need to pass a sentence which will serve to punish you and to protect the community from you and give appropriate weight to specific deterrence. Accordingly, you are convicted and sentenced to 8 years' imprisonment.

35 In order to address your prospects for rehabilitation, I propose to order that you serve a period of 5 years before becoming eligible for parole, and I declare that you have already served, by way of pre-sentence detention, a period of 478 days.

36 I declare, pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, I would have sentenced you to 10 years with a non-parole period of 7 years.

[3] [1981] HCA 31; (1981) 147 CLR 383.

[4] Section 160(2) of the Criminal Procedure Act 2009 (Vic).

[5] Section 24 Public Prosecutions Act 1994 (Vic).

[6] R v Newman and Turnbull (1997) 1 VR 146 at 150.