R v McKenzie [2008] VSC 394

Supreme Court of Victoria|2008-10-03|Before: KAYE J

CRIMINAL LAW - Sentence - Murder - Guilty plea - Accused contemplating killing in general sense - Access to depraved internet materials - Senseless murder of close friend - Youth - No prior convictions - No psychiatric or psychological disturbance - Limited remorse.

Stuart Ward, Acting Solicitor for Public Prosecutions

2 The factual circumstances which led to your murder of Mr Laver can be shortly stated. However, the reason why you murdered Mr Laver, and the underlying causes of your actions, are more complex, and less clear.

3 At the time of the offence you were 20 years of age. You were then working as a cabinet maker, and residing at a unit in Underwood Road, Ferntree Gully. You shared that unit with a friend, Brendan Scholes. Through Scholes you met Mr Laver, and you and Laver became good friends. At that time Mr Laver was working as an apprentice for Doysal Plumbing. Shortly before 1 December 2006 Scholes had stolen the tools of Mr Michael Naylor, who was the principal of Doysal Plumbing. When the theft was detected by Mr Naylor, Laver and you acted as mediators for the return of the tools. For that purpose Scholes returned the tools to the unit at Underwood Road. As he did not wish to be present during the return of the tools to Mr Naylor, he decided to cease residing there. He requested that you put together his belongings, which he would collect subsequently.

4 On the late afternoon of 1 December 2006, Mr Laver attended at your unit to assist you to return the tools to Mr Naylor. In due course Mr Naylor attended, and the return of the stolen tools to him proceeded without incident. You and Laver then went to another friend's premises to have a drink. After you returned to your unit, you proceeded to pack up Scholes' belongings. While you were doing so, you found a large hunting knife belonging to Scholes. You decided to retain possession of that knife, and strapped it to your leg, using a scabbard which came with the knife.

5 Some time after 7.00 pm, Mr Laver again attended at your unit. You had a drink together, and later, at about 10.30 pm, attended at the house of a friend nearby. There a group of you had a social drink and conversation. While you were doing so you pulled out the hunting knife and showed it to your friends. You told witnesses that you needed the knife for your self-protection. Subsequently, at about 11.30 pm the gathering at your friend's place came to an end, and you and Mr Laver left and returned to the unit. The witnesses who had been at that gathering all stated that at that time there was no difficulty between you and Mr Laver, and that there was no sign of any conflict or friction.

6 You and Mr Laver then returned to your unit at Underwood Road. You walked in through the premises, followed by Mr Laver. Just as you walked in through the door, you say you heard the word "Now", turned around, and stabbed Mr Laver in the right chest. The report of the pathologist shows that that wound extended through the rib cartilage into the chest cavity, and injured Mr Laver's right lung, diaphragm and liver. That wound resulted in a large loss of blood internally and also at the scene. You also inflicted further stab and slashing wounds to Mr Laver, including a deep stab wound to the lower back of his head. It appears that a struggle of some sort ensued, in which Mr Laver, at one stage, held the blade of the knife in his hand, thus occasioning him a number of incised injuries to his right hand and fingers.

7 In the course of that struggle, Mr Laver was able to break free from you and flee the unit. He ran onto Underwood Road bleeding heavily, in pain, and calling out for help. He collapsed in the street. A number of passers-by stopped and rendered him assistance. They valiantly sought to comfort and sustain Mr Laver until the ambulance arrived. On arrival the ambulance rushed him to hospital. Tragically Mr Laver died at 1.00 am. I take the opportunity to pay appropriate tribute to those selfless passers-by who gave such comfort and support to Mr Laver in his last moments. In particular, I acknowledge the commendable efforts of Ms Michelle King and Mr Todd Robinson who were first to come across Mr Laver, and who did everything possible to keep him alive. I also mention Ms Kylie O'Brien, Mr Mitch O'Connell, Ms Leanne Martin, Ms Irene Kelly, Mr Richard Kelly and Mr Peter Mahoney.

8 In the meantime, you used the hunting knife to slash your throat and cut both your wrists. When you realised that that was not working, you went into the shower and put the knife into the left side of your chest. That caused a deep penetrating wound which resulted in a punctured lung. When you realised that you were not going to die, you telephoned your mother and told her that you loved her. You then crawled into the kitchen, and telephoned 000 at 12 minutes past midnight. In the meantime the police and the ambulance arrived. You were conveyed by ambulance to the Alfred Hospital, where you were treated for your wounds, and underwent psychiatric assessment.

9 Pausing there, on the face of it, your killing of your close and loyal friend, Todd Laver, was utterly senseless and inexplicable. To your credit, on each occasion on which you have described your killing of Todd to the police, or to psychiatrists or psychologists, you have not sought to place any blame on Todd. There is no suggestion that, before the killing, you and Todd fell out, had an argument, or had an altercation. Further, and again, to your credit, you have not sought to attribute your murder of Todd Laver to the effects of your ingestion of marijuana and alcohol. In this respect, I note that you told Dr Walton and Dr Kennedy, both of whom were called as witnesses on your behalf, that at that time you were consuming more alcohol and illicit drugs than you told the police or Dr Lee, the psychiatrist who examined you at the Alfred Hospital on 2 December. However, you did not claim to Dr Walton or Dr Kennedy, or to anyone else, that your consumption of alcohol and drugs on the day in question had at all affected your behaviour. Indeed, in this respect, I note that those witnesses who saw you shortly before you departed for home on the evening in question do not describe you as being affected by alcohol or drugs.

10 It seems clear, however, that the explanation for your killing of Todd Laver lies elsewhere. The evidence reveals that, for three or four years before the dreadful incident which has brought you before this Court, you had become morbidly fascinated with violence, killing and macabre images. During that time you had developed and become obsessed with the concept of killing for the sake of killing. Since the age of 15 you had downloaded grotesque and depraved images and materials from the internet. You had retained those materials on your computer hard drive, which was seized by the police after the murder. On that hard drive of your computer you had also saved lyrics from groups, who masqueraded as musicians, and whose offerings can only be described as perverted obsessions with violence and death. You told Dr Lee at the Alfred Hospital that you had seen every movie and read every book about serial killers. In the week before the killing you had watched a video about a notorious American serial killer. You told the police, in your interview on 6 December, that when you read books about serial killers, you thought "what that would be like", and that would get your adrenalin pumping a bit. At the age of 19 you wrote a note, which was seized by the police from your papers, in which you fantasised about becoming a notorious serial killer in Australia. You even nominated a specific date when you intended to carry out that atrocity.

11 Some time before the events of 1 December 2006, your fascination with death and killing evolved into serious thoughts entertained by you about killing someone. Those thoughts, it would seem, crystallised on the night of your murder of Mr Laver. Shortly after you murdered Mr Laver, you telephoned the emergency 000 number. You requested to speak to the police, and stated that you needed serious help. You said that you were losing your mind. When the operator asked you what was the problem, you said you had been thinking about killing someone "for ages", that you had just tried it tonight, and that it "didn't work out". You told the operator that you had tried killing a friend with a knife.

12 Your statement to the 000 operator is consistent with what you told Dr Lee at the Alfred Hospital at 9.00 am on 2 December. At that time you told Dr Lee that for three or four years you had been thinking of serial killers, and that you had found yourself thinking about it a lot after watching horror and serial killer movies. You also told Dr Lee that sometimes you had given consideration to seeing a doctor about those thoughts.

13 The foregoing evidence reveals that, in a general sense, you had contemplated committing an act of murder for some time before you committed it on 2 December 2006. I accept that your contemplations had never developed into an intent to kill any specific person, or to carry out your crime at a particular time or location. However, it is evident that you had had recurrent and persistent thoughts of committing the act of murder. I accept that you did not formulate any specific plan to murder Todd Laver, either before or during the early evening of 1 December 2006. It has not been suggested by the Crown, and correctly so, that you took possession of Mr Scholes' knife with that specific intent in mind. However, it would seem that, shortly before the killing, the general intent which you had carried in your heart for so long crystallised. I expect that that process was at least in part stimulated by your possession of the very dangerous hunting knife that you had in your pocket at that time. Acting on that intent, which by then had become specific, you deliberately murdered your close, loyal and trusting friend. You did so in circumstances in which he was completely helpless to anticipate, let alone resist, your murderous attack on him.

14 Having carried out your dreadful crime, you rapidly realised the enormity of your own situation. I accept that the injuries which you inflicted on yourself were a genuine attempt by you to kill yourself. However, I do not consider that your attempt at suicide was an expression of any remorse at all by you as to the grave injuries which you had inflicted on your close friend. Rather, your suicide attempt was the result of your profound regret at having placed yourself in such a predicament. Your lack of remorse about, or concern for, Todd Laver, is eloquently reflected in your telephone call with the 000 operator. Not once in that call did you express any concern about the fate of your friend, who had fled severely wounded into the street. You repeatedly expressed concern about your own mental state, and your need for psychiatric help. You cared so little about your victim that you did not even think to ask the operator to have the police or an ambulance seek out your stricken friend.

15 Understandably, your actions, and your long-standing fascination with killing, raise the question as to your mental state, both at the time of the killing and generally. However, the unanimous view of the psychiatrists, and the psychologist, who have examined you, is that you were not, and are not, psychotic; that at the time of the killing, you were not suffering from depression or any other psychological illness; and that you were not affected by any disturbance. That was the opinion of Dr Lee and Dr Jenkins, the two psychiatrists who examined you on 2 December at the Alfred Hospital. That view was shared by Dr Lester Walton, the forensic psychiatrist, who examined you on 7 December 2007, and by Dr Simon Kennedy, the psychologist, who examined you on two occasions in September 2008. Dr Kennedy further expressed the view that you do not have an anti-social personality disorder. Neither Dr Walton nor Dr Kennedy were able to give a comprehensive explanation for your actions, nor for your morbid fascination with death and killing. Dr Walton was of the view that your interest in, and access to, the disturbing images and materials on the internet, were a manifestation of your thinking, rather than a cause of it. Dr Kennedy did postulate that a deficiency which he found in your verbal IQ, together with your long-standing abuse of alcohol and marijuana, may have led you to commence to identify with the serial killers with whom you had such a fascination. However, as I have stated, there is no evidence of any underlying psychiatric or psychological disorder, or personality disorder, which has been put forward by any of the experts who examined you as an explanation for your conduct.

16 In that context, I am then driven to the conclusion that while you had not previously formulated a specific intention to murder Todd Laver, nevertheless you had for some time given contemplation to the act of killing someone, and that, shortly before you murdered Laver, those thoughts crystallised, and you determined to put them into effect by murdering your close and good friend. Todd Laver had given you no cause whatsoever to harm him, let alone to kill him. He was a loyal and trusting friend to you. At your invitation he entered what should have been the safety of your home. Instead of giving him hospitality, you brutally turned on him. He had no reason to anticipate your murderous attack. He was utterly helpless to prevent it. You murdered him to satisfy your twisted desire to kill a fellow human being. When Todd Laver bravely made his escape from your murderous grasp, you did nothing to summon assistance for him. You thought solely of yourself. Realising your predicament, you tried to escape it by trying to kill yourself. When that did not work, you self-indulgently sought to gain access to a mental hospital.

17 The crime of murder is, rightly, the most serious crime known to our legal system. It consists of the intentional and unlawful taking of the life of another. At the time of his death Todd Leslie Laver was just 26 years of age. His family and friends, whose statements are contained in the depositions, describe him as a thoroughly decent, loyal and caring person, who was always concerned for and about others. He was an easygoing, likeable and generous young man, on the threshold of a life full of hope and promise. Your terrible actions have meant that that young man will never have the opportunity to fulfil his goals and dreams, will never experience the joys which life held in store for him, and will never know the deep satisfaction of pursuing his career and, one day, having a family of his own.

18 There are other real victims of your crime, who still have yet to come to grips with their loss. I speak particularly of Todd Laver's two parents, Leslie Charles Laver, and Kathleen Alice Laver. I have read, and re-read, their victim impact statements which were tendered on your plea. It is impossible to distil into a few short words the scale and extent of the suffering you have visited on those two good people. For that reason, I requested that your counsel provide you a copy of the statements, so that you can gain some insight into what you have done. Todd Laver was an only child. He was very much loved by his parents, and in turn he reciprocated that love and affection in full. They were and are justifiably proud of their son, who meant so very much to them. He was in every sense an integral part of their lives and their family unit. You have truly shattered the lives of Mr and Mrs Laver, destroyed their family unit, and visited on them immeasurable and indescribable suffering and loss. Their grief and suffering, as revealed in their victim impact statements, is a salutary reminder of the enormity of your wrongdoing and of the gravity of your crime.

19 I turn then to matters pertaining to your background, to your personality structure, and to your conduct since the crime, in order to identify appropriate mitigating circumstances, which are to be taken into account in determining the just sentence which is to be passed upon you. In that respect I was greatly assisted by the well prepared and articulate plea made on your behalf by your counsel, Mr Stuart.

20 As I have stated, at the time of the offence you were young, just 20 years of age. You are now 22 years of age. Your parents separated when you were young. Your father, who had been in trouble with the law, died in a motor vehicle accident seven years ago. Since his separation from your mother, you had had little to do with him.

21 It seems that your primary school education was uneventful, but that, in your secondary years, you were not a good student. You struggled academically, and your teachers considered that you lacked motivation. The testimonial of your English teacher, Mr Johnson, states that you were disruptive and defiant towards teachers, and disorganised. You left school at the age of 17, halfway through Year 11, having failed Years 8, 9 and 10.

22 Having left school you did well in the workforce. You commenced employment for a firm of cabinet makers, carrying out basically unskilled and semi-skilled work. When your employer went out of business, you gained employment with another firm of cabinet makers, with whom you were employed for two years until the date of your arrest.

23 Mr Johnson in his testimonial stated that, notwithstanding your difficulties at school, nonetheless you were polite and easy to deal with. Mr Johnson described you as a placid and withdrawn young person. He was shocked when he heard about your offence, as the circumstances of it seemed to be totally out of character with the young man he had previously known.

24 Mr Johnson's description of you is supported by the observations of friends and acquaintances, who made statements to the police. They all described you as a placid person who seemed to be normal and quite easygoing. There is no evidence that you had been involved in any violence, or any previous act of aggression. Significantly you have no previous convictions.

25 Dr Walton, the psychiatrist, and Dr Kennedy, the psychologist, both were substantially at a loss to give an explanation for your murder of your close friend. As I have already indicated, the unanimous view of those two experts, and also of Dr Jenkins and Dr Lee, the psychiatrists at the Alfred Hospital, is that at the time of the offending you were not suffering from any psychotic disturbance, or from any psychiatric illness. Dr Walton confirmed that you are not a psychopathic personality. That view is shared by Dr Kennedy, whose evidence is that you do not have an anti-social personality disorder, and that you do not appear to have any anti-social personality tendencies.

26 In his testing, Dr Kennedy did elicit a significant discrepancy between your verbal and non-verbal intellectual quotients. Your verbal IQ of 71 is quite low. For some time before the offending you had used alcohol and illicit drugs. During that period you had become fascinated with thoughts of killing and of violence. Dr Kennedy postulated that your low verbal IQ left you ill-equipped to be able to modulate your behaviour, so as to steer you away from your obsessive thoughts. However, he acknowledged that that hypothesis is only a partial explanation for your offending. Indeed, I note that you yourself had recognised the inappropriate nature of your fixation with violence and killing, and that you had, some time previously, considered consulting a doctor about it.

27 It is significant that none of the three psychiatrists, nor the psychologist, attribute your wrongdoing to the excessive consumption by you of alcohol or drugs. I do note that when you spoke to Dr Walton and Dr Kennedy, you claimed to have used significantly larger quantities of alcohol and drugs, both in the period leading up to the day of the murder, and on the day of the murder, than you told to Dr Lee, or to the police in your interview. That discrepancy in your account remains unexplained. However, it is not particularly relevant for present purposes. To your credit, you have not sought to blame your wrongdoing on the excessive consumption of alcohol or drugs. Further, the psychiatrists and the psychologist do not consider that those substances played any particularly material role in your wrongdoing.

28 On your plea it was put on your behalf that you have shown yourself to be remorseful for what you have done.

29 In my view, there is little, if any, evidence of true remorse by you for your actions. I have listened carefully to the 000 call which you made at 12.12 am on 2 December. In that call, it is clear that your primary, if not sole, concern was for yourself. On four occasions you asked for help for yourself. You told the operator that you had stabbed your friend, and that you did not know where he was. In response to her further question about your friend, you immediately described the injuries you had inflicted on yourself. When asked by the operator whether your friend was in the house when you stabbed him, you responded "Yes. I need serious mental help". Later in the conversation, the operator asked you about the injuries you had inflicted on your friend. The operator asked you whether he was bleeding heavily, to which you replied "Ah, yeah. Can I ask you something though?" and then you proceeded to ask the operator "Can you put me in a mental hospital?" It is clear that, during that telephone call, your thoughts were solely for yourself, and not for your good friend who, without cause, you had mortally wounded. Although you may not have known the full extent of the injuries inflicted by you on him, it is clear that you knew that you had stabbed him at least once in the area of his vital organs, and that he was bleeding heavily. You expressed no concern for his welfare, and did not even think to ask the operator to dispatch an ambulance or a police officer to find him and render assistance to him.

30 Similarly, there is no evidence that you had any concern for Todd Laver when you spoke to the police after their arrival. When the police asked you what happened, you responded that you needed mental help. You did not inquire after what had happened to Todd Laver, or whether anyone had found him or given him assistance. During your conversation with Dr Lee at 9.00 am on 2 December, there was no expression of remorse by you for what you had done to Todd Laver. In the interview conducted with you on 6 December (which I have viewed), you twice expressed concern that, by killing Todd Laver, you had wasted or destroyed your life. At the end of the interview, when asked if there was anything else you wished to say, you did say that you were sorry and that it was never meant to happen that way, and that you would miss Todd, because he was a good mate. That expression of regret was, I consider, singularly muted in the context of the horrific crime you had just committed.

31 Your lack of genuine remorse is also evidenced by a letter which you wrote to your family and friends, apparently about one month after your incarceration. In that letter you described your then position in prison in a positive light. I agree with Dr Walton that the letter may well have been an expression by you of bravado, rather than a true reflection of your then situation. However, it is significant that you did not, at that stage, express any remorse over the taking by you of your friend's life. You did state that you were taking responsibility for your actions, but you did nothing to convey any feeling you had for your friend, or for his family.

32 In his report, which was tendered in evidence, Dr Walton stated that you did "seem to express conventional remorse". In evidence before me, Dr Walton stated that part of the expression of your remorse was your attempted suicide, but he acknowledged that that was more regret over the predicament you had landed yourself in, than genuine remorse. In evidence, Dr Walton did state that you were "fairly straightforwardly remorseful" about the victim's family and mindful that you had killed a friend for no apparent reason. Mr Kennedy, in his report, which was also tendered in evidence, considered that you had felt immediate remorse, which was evidenced by your attempts on your own life. However, as I have stated, in my view that attempt on your life was clearly an outcome of your regret at the situation you had placed yourself in, and was not a genuine expression of your grief over what you had done to your good friend.

33 In those circumstances, I do not consider that you expressed any real remorse at all for your actions, at least until you spoke to Dr Walton. Further, it would seem from the tenor of Dr Walton's evidence that your expression of remorse to him was, as he described, "rather conventional". I do accept, on the evidence of Dr Kennedy that your verbal skills are not as well developed as your functional skills. Nonetheless, having viewed your interview with the police on 6 December, I consider that you are sufficiently articulate, and intelligent, to be able to express genuine regret if that is how you felt. Allowing you the benefit of a considerable doubt, I am prepared to accept that by the time you spoke to Dr Walton, in December 2007, you had come to feel some remorse over the murder by you of your friend, albeit that that remorse appears to have been of particularly limited depth and extent.

34 Dr Walton and Dr Kennedy have also expressed views about your prospects of rehabilitation. Dr Walton stated in his report that you do not exhibit evidence of more general irresponsibility, or any proclivity towards violence, "which would seem to indicate a favourable prognosis regarding recidivism". Dr Walton confirmed that view in his evidence before me. Dr Kennedy did not express any view on your prognosis in his report, but in his evidence before me he was prepared to state that he was optimistic that you would not re-offend. Dr Kennedy did state that you have still a long way to go to understand all the aspects which led to your offending, and that indeed you may never completely understand it. His view was that, in light of your background, there was nothing of major concern which would indicate that you might re-offend.

35 In considering that evidence, I was drawn to the conclusion that Dr Kennedy was given, somewhat, to arguing the case on your behalf. It was difficult to understand from his evidence how he was able to express such optimism as to your prospects of rehabilitation. It is certainly to be hoped that his views are correct and that you will be able to rehabilitate and not re-offend. On balance, I accept that there is a basis for guarded optimism about your prospects of rehabilitation. However, I do observe that it is important that the prison authorities, if possible, ensure that you are afforded the type of counselling referred to by Dr Kennedy in his evidence, in order to assist you to address the deficit in your verbal skills, and to gain some insight into your offending. I will therefore recommend that the prison authorities endeavour to ensure that you receive the psychological treatment described by Dr Kennedy in his evidence, which should also focus on your abuse of illicit substances. To that end, I shall direct that copies of the reports of Dr Walton and Dr Kennedy, and of the transcripts of their evidence before me, be sent to the Director-General of Corrections and to the Adult Parole Board.

36 In this connection I note, to your credit, that during your term of imprisonment, you have been actively involved in work. You have worked, successively, in gardening, the laundry, and then in gardening again. At the same time you have also undertaken courses in mood management, anger management, and drug and alcohol education. Your performance so far while incarcerated does add to the cautious optimism which I have for your successful rehabilitation.

37 As I have already remarked, you were young at the time of your offence. The law recognises that the youth of an offender is an important circumstance, mitigating the severity of the sentence which would otherwise be imposed upon you. Your youth, and comparative immaturity, reduce, to a mild extent, the gravity of your wrongdoing. The law also recognises that, where an offender is as young as yourself, it is in the community's best interests that the sentence to be imposed upon you be tempered, in order to make adequate allowance for the prospects of your rehabilitation. I also acknowledge that, as a young offender with no previous criminal record, a term of imprisonment will be more onerous for you. In this respect, I note that you were suffering from some depression, arising from your incarceration, when Dr Walton saw you in December 2007, but that that condition had subsided by the time Dr Kennedy saw you in September of this year.

38 By the same token, the Court of Appeal has, on a number of occasions, stated that where a young offender is to be sentenced for such a serious offence, the weight to be accorded to that offender's youth and rehabilitation is correspondingly reduced.[1] In the case of such a serious instance of the crime of murder, your youth cannot be permitted to override, or unduly diminish, the importance of other legitimate sentencing considerations, including the appropriate condemnation of your wrongdoing, and the need for general and specific deterrence.

39 As I have already noted, it is particularly to your credit that, on a number of occasions, when you have given your account of the events which preceded your murder of Todd Laver, you never sought to avoid your responsibility for your actions, or to cast any blame on Todd Laver. From the very outset, when you telephoned the emergency operator, you took personal responsibility for your actions. That continued to be your position when you spoke to police at the scene, to the doctors at the Alfred Hospital, and to the police during your interview on 6 December. You have never resiled from that position, when you were interviewed by Dr Walton and Dr Kennedy on instruction from your solicitor. Your frank admissions, and the fact that you have not sought to diminish your responsibility for your criminality, are in my view important mitigating circumstances in this case. While, as I have stated, I consider that it took you some time to achieve any remorse, and that you now have only done so to a particularly limited extent, you have at all times recognised, and acknowledged, your wrongdoing.

40 Furthermore, you have pleaded guilty. That circumstance is to be taken into account on your behalf as a mitigating factor. It was submitted to me by Mr Stuart that you pleaded guilty at the first available opportunity. I do not accept that proposition. I do accept that it was appropriate for you, and those advising you, to defer making any decision as to your plea, until the issue of mental impairment had been addressed by an appropriate forensic psychiatrist. No satisfactory explanation has been given to me why it took one year for Dr Walton to be engaged. However, and more significantly, after his opinion had been obtained (at least verbally), you did not plead guilty in December 2007 at a pre-trial directions hearing, notwithstanding the acknowledgment to the Court by your solicitor, on that date, that the defence of mental impairment was no longer available. Thus, I do not accept that you pleaded guilty at the first available opportunity. Nevertheless, your plea of guilty to the most serious charge of murder does stand to your credit. It is an important continuation of your acknowledgement of your wrongdoing, and of your intention to further the course of justice. More importantly, in a case such as this, your plea of guilty has spared Todd Laver's parents the trauma and distress of a contested trial. That consideration is very real in a case such as this, and I was rightly informed by Mr Gibson, who appeared on behalf of the Crown, that your plea of guilty has been a matter of significant relief to Mr and Mrs Laver. I therefore take that matter into account on your behalf.

41 In conclusion then, you stand to be sentenced for the most serious crime known to our law. I have found that you did, in a general sense, for some time contemplate murdering someone at some stage. Those thoughts continued until the time of the murder of Todd Laver. While you only formed a specific intent to murder Todd Laver shortly before you stabbed him, that intention was the culmination of your previous contemplations of the act of murder. Your killing of Todd Laver was utterly senseless and without any justification or excuse. Your victim gave you no cause to do him any harm. He had absolutely no chance of defending himself from your sudden and brutal attack on him. You murdered him in cold blood to gratify your perverted interest in killing another human being.

42 In a case such as this, it is important that the sentence that is imposed on you be sufficient to constitute an appropriate denunciation by this Court of your crime, and to properly uphold the sanctity of human life in our community. It is also necessary that the sentence which is imposed on you be of sufficient magnitude to deter other like-minded persons from resorting to lethal violence to satisfy their violent impulses. In addition, it is necessary to impose a sentence which will be sufficiently long to enable you, hopefully, to gain appropriate insight into your wrongdoing, and into the underlying causes which precipitated you into the events of that fateful night.

43 In determining that sentence, I take into account the mitigating circumstances to which I have referred. In particular, I take into account your youth, your commendable candour and confession, your plea of guilty, your good work record, your lack of any previous convictions or of any involvement in violent conduct, and the commendable steps which you have so far taken in jail to redeem your position. I also give some, albeit limited, weight to the qualified remorse which you now feel about your victim and his bereaved family. As I have already noted, I also take into account your prospects of rehabilitation, bearing in mind your youth at the time of the offence, and now at this time of sentencing.

44 Taking all those matters into account, I sentence you as follows. I sentence you for the murder of Todd Laver to a term of imprisonment of 20 years. I fix a minimum non-parole period of 15 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 671 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

45 As I have already stated, I have taken into account, in your favour, the fact that you have pleaded guilty. I have taken into account that your plea of guilty was made as part of your ongoing cooperation with the authorities, and is another reflection of your candid confession to your crime. I also consider that, to a limited degree, that plea was accompanied by some remorse. For the reasons I have expressed in my earlier decision in R v Flaherty (No 2)[2], in a case such as this it is highly artificial to postulate the sentence I would have imposed if all the circumstances of the case were the same, except that you pleaded not guilty. Nevertheless, with that qualification, and in accordance with the principles which I discussed in R v Flaherty (No 2)[3], for the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 22 years' imprisonment together with a non-parole period of 17 years.

[1] See DPP v SJK and GAS [2002] VSCA 131, [65] to [66]; DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, [22] (Batt JA), [25] (Winneke P); [2004] VSCA 154; R v Beruschi [2007] VSCA 232, [19] (Neave JA), [35] (Kellam JA).

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Parties

Cases Cited (1)