R v Obrist [2008] VSC 496

3 The circumstances of your offending, as I find them to be, are that on 11 December 2006 you and your wife went to visit your stepdaughter at her home in Beachley Street, Braybrook. She resided there with her partner and two children in a unit at No. 12. Next door at No. 12B Beachley Street resided Mike Beard.

4 Your stepdaughter and her family, which included you and your wife, were invited next door for a Christmas drink, and you all subsequently attended with the exception of your stepdaughter's partner, who stayed at home. On the corner opposite your stepdaughter's home resided Debra Brophy.

5 On this day the deceased, Gregory Harris, and his friend, Ross McCluskey, came to visit Ms Brophy, who was the ex-partner of the deceased. A short time after arriving, they went over to the house of Mike Beard, as Ms Brophy wished to use the phone. Both of the men went with her and stayed and joined in the Christmas drink. Ms Brophy left after a short time.

6 It would appear that the deceased had had some sort of relationship, of a short duration, with your stepdaughter, Linda Szombathy, in the past, and something occurred between the deceased and Ms Szombathy, to which offence was taken by you. When the deceased left there was a physical altercation between you and the deceased's friend, Ross McCluskey.

7 After this occurred it appears that you shook hands, basically, and left the premises. Although there was some degree of confusion about what occurred next, there was some sort of confrontation between you and the deceased and your various family members on the corner of the street.

8 The deceased then left the area and returned to the rear of the house of Debra Brophy. You, together with your family, returned to your stepdaughter's home.

9 The deceased man went to the bungalow at the rear of the premises, armed himself with a tomahawk and a jemmy bar and immediately left the premises by the side gate and went to your daughter-in-law's premises.

10 I am satisfied, beyond reasonable doubt, that he entered the premises through the front gate and went up the path to the front door of the premises. I am also satisfied, he was being loud and aggressive at this time. Your stepdaughter locked the wire security door just before he arrived there.

11 You, together with your wife, your stepdaughter, your son-in-law and two children, were in the house at the time. The deceased commenced to attack the premises, including the security door, with at least the tomahawk and probably the jemmy bar, as well. This is confirmed by the forensic examination that occurred subsequently.

12 Your stepdaughter was yelling at him to leave and repeating that there were children in the house, to go away and stop. During this time, the deceased was calling out threats that he would kill the occupants of the house including the children. His behaviour was clearly out of control and that is reflected in his blood alcohol content of that day. It is clear that both of you had too much to drink on that day.

13 Instead of calling the police or staying locked inside the premises where you and your family would have remained safe, you armed yourself with two knives from the kitchen and then unlocked the security door and stepped out onto the front path.

14 You had initially sought a less violent weapon, asking your son-in-law if he had a baseball bat or something similar. Most unfortunately for all concerned he did not and, thus, you went and obtained the knives from the kitchen.

15 Debra Brophy gave evidence that the deceased man at no stage went onto the property where you and your family were on that day. I do not accept the evidence of Ms Brophy on this point, together with the majority of her evidence. There is strong independent evidence that proves to my satisfaction, beyond reasonable doubt, that the deceased man entered the premises as an aggressor, armed with and intent upon using the tomahawk and jemmy bar, prior to you leaving the premises.

16 Once you left the house a fight ensued between you and the deceased man, who was still armed with the jemmy bar and the tomahawk. You received some injuries, none of which were life-threatening in any way and you inflicted two stab wounds to the deceased, one of which was fatal.

17 After he was stabbed, the deceased left the corner of the street where this fight had ended up and returned to Debra Brophy's house, with some assistance from her and his friend, Ross McCluskey. He undressed, went to the shower, collapsed and died there.

18 If you had remained inside your stepdaughter's premises, Gregory Harris would be alive today and you would not be facing a sentence of imprisonment. This was foolhardy and dangerous behaviour, in which you participated on this day, and the jury have accordingly convicted you of unlawful and dangerous act manslaughter. It also means that the jury have found that you did not have an intent to kill or cause really serious injury to the deceased at the time you wielded the knife.

19 Equally, however, the jury have rejected your defence of self-defence and have done so clearly on the basis that you did not need to act in this manner to defend yourself, or another, at the time that you killed Gregory Harris.

20 I have to say, that for me, this is a clear example of males becoming aggressive when too much alcohol has been consumed and, in the case of Gregory Harris, when mixed with cannabis. It is obvious that all sense of judgment and commonsense is lost with the combination of cannabis and the consumption of large quantities of alcohol.

21 In this case I have received four victim impact statements, being from Scott Harris, the brother of the deceased, Janelle Harris, his sister, Douglas Raymond Harris, another brother, and Christine Harris, his mother. I have read them and they are sad and difficult documents to read. The loss of a son and a brother is hard to bear, and that is reflected strongly in their statements. Nothing that is imposed by way of sentence can ever adequately make the family of the deceased person feel less aggrieved or less devastated by their death.

22 The sentence that I am about to impose in no way reflects upon the value of Gregory Harris' life, only the appropriate punishment for the circumstances of his death. I will, and have, taken into account the victim impact statements in determining this sentence.

23 You have two prior convictions, only one of which can really be regarded as relevant. The two priors are that in December of 1971 you were convicted and sentenced to one month's imprisonment for illegally using a motor vehicle. As I said, I do not consider that relevant. And the second is in the County Court at Melbourne on 21 December 2001, you were convicted of two counts of recklessly causing serious injury and sentenced to be imprisoned for a total of 18 months, wholly suspended for a period of three years.

24 The circumstances of that offending were that two youths had stolen your wife's handbag whilst she was at a gambling venue. You pursued them and challenged them about taking the bag. One of the youths produced a knife, which you managed to take from him, and you, in that fight, inflicted quite serious injury upon both of those youths. The Crown stated that when you got the knife you thrust the knife forward stabbing, ultimately, both youths to the abdomen. One required an air ambulance to the hospital. You received quite minor injuries only, but the two men both underwent surgery, one being for a repair to a damaged artery.

25 You were fortunate not to have killed someone at that stage. There is, in my view, a disturbing aspect to that prior conviction in that although you were not the initial aggressor in the fight, you did not avoid a confrontation or back off in any way when a weapon was produced and you inflicted very severe injuries. The situation in this case bears a marked similarity, in terms of scenario, as I found occurred that day. Accordingly, in my view, this is a significant and relevant prior conviction, which I shall take into account.

26 I also have to take into account your personal circumstances and history. You are now aged 56 and are the second eldest of five children. You have a half brother older than you and a younger half sister. Your parents separated after your birth and you were placed in an orphanage until your father gained custody of you, some four years later. Your time in the orphanage was described as extremely harsh. You were raised in the Queensland area, in Coopers Plains.

27 Your father had remarried and you went to live with your father and stepmother. It would appear that your father was a violent abusive man, who used to hit you with a belt. Your stepmother would try and stand between you and your father and she often received beatings as a result.

28 Your stepmother suicided in the family home, when you were about nine years of age. Your sister took over managing the family and you were described as running amok. There was little food, and significant problems for the family.

29 You failed to complete Year 9 and left school. You also ran away from home and, at that stage, you were placed in a boys home for about four months.

30 You ultimately met your mother again when you were aged approximately 15 and that meeting was not successful. You have described her as a hard and greedy woman.

31 A report from Ms Carla Lechner, psychologist, was tendered to the court and became Exhibit 2. She stated in that report that you were:

placed in gaol in Goulburn where you were raped by three inmates, from which you have never fully recovered.

32 There is, as I have indicated, no criminal history relating to such a matter on the further presentment, but it would appear that the further presentment is deficient in relation to any time spent in custody, or criminal convictions relating to Queensland and New South Wales. Your counsel indicated that occurred at the age of approximately 18 and it is something from which you have never recovered, like a lot of sexual assault victims. You feel great shame about the offence and you have an inability to deal with it and its consequences.

33 Your counsel further indicated that you had a criminal history beyond what was on the further presentment that reflected your alcohol and drug history and the cycle of petty theft, moving to more serious dishonesty, then to gaol and then, upon release, once again, to petty theft, moving on in a continuous cycle.

34 You and your wife, Cheryl, were married for approximately 30 years and, although separated, you were living in the same house at the time of this incident. You and your wife have two children currently now aged 26 and 25, and your wife has two children from a previous relationship; one being Linda, the daughter at whose home these events occurred, is aged 31, and a son aged 28. There was also a daughter, Michelle, who died of cystic fibrosis at the age of 15 years.

35 You, in terms of your health, have pancreatitis. This has resulted in the removal of your gall bladder, which you state has reduced your alcohol consumption, although you conceded to Ms Lechner that, on this day, you and a number of others had consumed far too much alcohol.

36 You have obviously been a consistent abuser of alcohol and also a variety of illicit drugs. Ms Lechner, in her report, stated that you had not used any illicit drugs until the death of Michelle, but thereafter you used amphetamines, ecstasy and regularly used cannabis. You have had a brief involvement with both cocaine and heroin, but nothing regular in respect of usage of those drugs.

A psychologically fragile man with a history of abandonment, neglect and abuse in his formative years, thus undermining his social and emotional development. His propensity for depression and anxiety was greatly aggravated by an incident of gaol rape when he was aged 18. He has been under psychiatric care for much of his adult life.

38 You have had little in the way of employment and you are now on a disability pension and have been for some time, as a result of depression, drug addiction and post traumatic stress disorder.

39 Your relationship with your wife provided you with virtually the only stability that you have had over your lifetime, but that relationship, I was informed, started to falter after the death of Michelle, the daughter of your wife. Whilst your wife became addicted to Valium, you turned to illicit drugs and you drifted apart.

40 In 2002 you came to Melbourne alone, to start afresh, as your daughter, Penny, was living in Melbourne at the time. Your wife eventually followed and although you remained married it was in name only and you treated each other more as friends.

41 On assessment, Ms Lechner found that you fell into the extreme category in respect of the Depression Index and she diagnosed you as suffering from clinical depression and you are currently taking the medication Efexor, an anti-depressive drug. She also stated that you are a person who had strong emotional dependency issues and that you would benefit from ongoing counselling. She also found, and further psychometric testing confirmed, that your judgment and reasoning skills are limited.

42 You have expressed regret at the death of Gregory Harris and that he died at your hands, and I accept that you do have a degree of remorse. That is actually demonstrated in the record of interview conducted with the police shortly after your arrest. You also suffered some injuries, but they again were minor in nature when compared to those of Mr Harris.

43 You have had little in the way of visitors whilst you have been on remand, although your stepdaughter has visited occasionally and kept in touch by phone. It would appear that your daughter, Penny, has kept in touch by phone also and has made arrangements for you to go to Sydney and reside with her upon your eventual release.

44 If the deceased man had not gone to visit Debra Brophy and had not armed himself and behaved as badly as he did on this day, and you had not left the safety and security of your stepdaughter's home, then Gregory Harris would be alive today and you would not be going to gaol. But you both did. And, accordingly, the issue of both specific and general deterrence has some relevance in this case. Members of the community must realise that they cannot take the law into their hands in situations such as this, but should in fact call the police to deal with a person behaving in the manner that the deceased did on this day.

45 In light of your prior conviction, to which I have earlier referred, I am of the view that specific deterrence has some relevance in your case, as the actions taken by you on those two occasions bear a sufficient similarity to cause concern. All of that must be moderated by the mental health issues that you face.

46 The court also has to balance your personal factors and history with the need to impose a just and appropriate sentence in all of the circumstances of the crime.

47 Taking all of those factors into account, on the count of manslaughter you are convicted and sentenced to be imprisoned for a term of six years. I direct that you are to serve four years' imprisonment before becoming eligible for parole. I declare that you have spent 651 days in custody and that should be noted in the records of the court. I make the retention order pursuant to s.464ZFB(1) and the disposal order in relation to the two knives.

48 MR HILLMAN: There is just one other matter, Your Honour. Your Honour will recall that for good reason I was persuaded by Your Honour to remove the two counts involving Mr Ross McCluskey of intentionally causing injury and recklessly causing injury as an alternative from the trial presentment. There was some discussion at the end of the trial about using s.100 of the Sentencing Act. The matter has been considered by the Director and I am instructed to announce the entry of a nolle prosequi. And to formalise that, I will, if I may, file a presentment containing those counts.

49 HER HONOUR: I will note the entry of the nolle in respect of those matters.