R v Parr [2009] VSC 468

3 On 22 June 2009 and on 24 July 2009 I heard a plea in mitigation on your behalf. On 15 October 2009 I heard further submissions on the Court of Appeal decision in R v Edwards,[1] which was handed down on 9 October 2009.

4 The maximum penalty for the crime of defensive homicide is 20 years' imprisonment.[2]

5 The circumstances of your offending were as follows.[3]

6 Some time in 2007 the deceased; his girlfriend, Julie Dankevicius; and her 17-year-old son began to live in a Ministry of Housing flat in Frankston rented by their friend, Kylie Vickers. Kylie Vickers is your sister. Some time after they arrived, you also came to live in this flat with your friend, Sharmayne Brechin. Kylie Vickers' boyfriend at that time was a person named Laurie Merceica.

7 Whilst the evidence at your trial was unclear as to what had happened leading up to the fatal incident, I am satisfied that there had been prior conflict between you on the one hand and your sister's boyfriend, Mr Merceica, and the deceased, Mr Aruma, on the other. The evidence at your trial indicated that both Mr Merceica and Mr Aruma had a violent disposition. The deceased, Mr Aruma, had served a prison sentence for an armed robbery which involved use of a firearm. Mr Aruma wanted you to move out of the flat.

8 On the afternoon of 3 September 2007 you came to the flat. Ms Dankevicius and her son were there alone. They refused to let you in. You became angry, banging on the windows and the front door. Ms Dankevicius and her son were frightened, and Ms Dankevicius attempted to telephone Mr Aruma.

9 Mr Aruma returned to the flat and Ms Dankevicius opened the door. You and Mr Aruma both entered. Mr Aruma told you that you couldn't stay and an argument ensued. Mr Aruma told Ms Dankevicius and her son to go outside to the garage, which they did. Shortly thereafter they heard yelling. They ran up some stairs to the front of the flat where they saw you and Mr Aruma leaning against the balcony railing. Mr Aruma had his head over the railing and was facing away from you. You were leaning over him. Ms Dankevicius and her son pulled at you until you let go of Mr Aruma. You then ran from the premises.

10 That night you went to the house of a friend of yours, Natasha LaGreca. You told her you had been in a fight and that you had stabbed someone. You had a shower there and changed some of your clothes. You asked Ms LaGreca to burn your clothes. She said she wouldn't. After a short time you left.

11 Meanwhile, Ms Dankevicius and her son drove Mr Aruma to Frankston Hospital. He had told them that he had been stabbed. He died in hospital later that night.

12 Mr Aruma had 20 relevant injuries; 17 were stab wounds and three were abrasions. The two most serious stab wounds were to his chest. One of these penetrated his lung. The remaining stab wounds were to the back, chest, right arm, right hand, left leg and head. The cause of death was bleeding due to multiple stab wounds. A toxicologist's report of samples taken from Mr Aruma revealed regular use of methamphetamine, recent use of heroin, and use of methadone.

13 The knife used in the attack was found in a park opposite the block of units where the fight had occurred. The knife is a kitchen carving knife. There was no evidence that you had come to the flat armed with a knife. Ms Dankevicius' son had observed a knife positioned on a cabinet next to the television in the loungeroom of the unit which had been there before you moved into the unit.

14 On 5 September 2007 at approximately 7.50 am you were arrested in a house at Seaford. You had abrasions on your face and neck. None of your injuries was serious.

15 You were aged 29 at the time of the offence and are now aged 31.

16 On your plea, I was told that you were born in January 1978 in New South Wales and that your parents separated very early in your life. You have only one sibling, Kylie, who is three years older than you. You left school during Year 8, not long after your mother had left you and your sister with your stepfather. You had an uneasy relationship with your stepfather but you stayed with him until you were about 16 years of age. I was told that both your mother and your stepfather abused alcohol and that your mother also abused cannabis.

17 After leaving your stepfather's house you lived on the street in Frankston. You had some short-term employment. You renewed contact with your mother and at one time lived with her for about six months. When you were about 18 you moved to New South Wales where you lived with an uncle for approximately one year. You then returned to Melbourne and again lived on the streets or in squats. From time to time you formed relationships and lived with a partner. In 2001 you had a daughter with one of those partners. I was told on the plea that when you commenced serving a prison sentence in 2003 you lost contact with that child. You also have a 2-year-old son with another one of your partners.

18 You began smoking cannabis at about 13. You began using amphetamines at about 15 and heroin at about 18. You were a heroin addict for a number of years, and have been on a methadone program since 2006.

19 You have admitted a large number of prior convictions. They begin on 25 October 1995 when you were 17 years of age. Between 25 October 1995 and the date of this offence you appeared in court on 18 occasions. Until convictions on 26 August 2002 at the Melbourne Magistrates' Court, your convictions were for offences of dishonesty, including burglary and theft; drug offences; and other offences commonly associated with drug addiction, unemployment, homelessness and impoverishment.

20 On 26 August 2002 you were convicted at the Melbourne Magistrates' Court of offences of theft and assault with a weapon. You were sentenced to 2 month's imprisonment. On your plea I was told that the offence had occurred in September 2001 and involved theft of some minor items from a 7 Eleven in the course of which you threatened a security guard with a knife.

21 On 30 October 2003 you were convicted at the County Court on two counts of armed robbery, one count of causing serious injury recklessly and one count of causing serious injury intentionally. You were sentenced to a total effective sentence of 51 months' imprisonment with a non-parole period of 34 months. On the plea I was told that the offences occurred on 27 November 2001 and on 2 December 2001. The offences on 27 November 2001 occurred late at night in the St Kilda area. You and an associate stole a wallet from a person on the street. In the course of that incident you stabbed the victim five times, once in a location close to his liver and four times on his arm. The second incident on 2 December 2001 involved you threatening a person with something like a pitchfork, punching and kicking that person, and hitting that person with a plank of wood.

22 On 18 November 2003 you were convicted of burglary and theft and sentenced to a term of imprisonment of 9 months which was to be served concurrently with the sentence you were then undergoing.

23 On 23 October 2006 you were convicted at the Frankston Magistrates' Court of assaulting police and resisting police. I was told on your plea that these offences concerned an incident on 5 November 2005 which also took place at Ms Vickers' flat in Frankston. I was told that police were called to a disturbance and that you fought with them when they arrived. You were sentenced to a term of imprisonment of 7 days.

24 According to a Corrections Victoria print-out handed up at the plea by the prosecutor you were granted parole on 21 March 2007. According to that print-out, and according to the prosecution on the plea, your parole was cancelled on 20 June 2007 but you were not returned to custody consequent upon that cancellation until 6 September 2007. You had been arrested on this matter on 5 September 2007. On your plea I was told you then served the balance of the imprisonment referrable to your cancelled parole until 5 March 2008. Your pre-sentence detention for the purposes of this matter is, I was told, one day for 5 September 2007 and the period since 5 March 2008.

25 At your plea your counsel tendered a psychiatric report from Mr Cummins dated 23 July 2009.

26 Mr Cummins found that while you did present with an elevated level of anxiety and as being moderately depressed, you did not have an anti-social personality disorder or any specific personality disorder. Rather, he said that your history is consistent with that of a chronic poly-drug user. He also found that you did not present with any obvious anger management problem or attitude problem, and that you were of normal, although below-average, intelligence.

27 On your plea, your counsel did not submit that this was a case where a psychological condition existing at the time of the offence reduces the moral culpability of the offending conduct,[4] but he did submit that your mental state as described by Mr Cummins was relevant to sentencing. I accept that it is relevant to the extent that the sentence may weigh more heavily on you and that the sentence may have an adverse effect on your mental health. But, given Mr Cummins' assessment, these factors do not have a significant bearing on the disposition here.

28 Counsel for the prosecution submitted on the plea that the courts have not in the past adequately taken into consideration the maximum penalty for defensive homicide in sentencing, and referred me to a number of Victorian defensive homicide cases,[5] which I have considered. She also referred to some recent authorities on the issue of how much weight should be given to the maximum penalty in sentencing,[6] which I have also considered.

29 Counsel for the prosecution submitted that the situation here belongs at the "higher end of the spectrum" defensive homicide cases. She submitted that the appropriate sentencing range was a head sentence of between 12 and 14 years, and a non-parole period of between ten and 12 years.

30 Your counsel submitted that one mitigating factor here is that an offer was made before the trial to plead guilty to defensive homicide. That offer was made again at the close of the Crown case. These offers were not accepted by the Director of Public Prosecutions.

31 An offer that is rejected by the Crown and never entered as a formal plea, if it is consistent with a jury verdict, can be an indication of remorse and contrition, and it can also be taken into account in the accused's favour because of the utilitarian value of such offers in potentially relieving the State of the cost of the trial and relieving the witnesses of the burden of being called to give evidence.[7] I do take these offers into account in your favour.

32 It was submitted by your counsel that you have some prospects of rehabilitation as Mr Cummins' view that you do not have an anti-social personality or a specific personality disorder means that you do not therefore attract the diagnosis of something that is treatment resistant. I accept that Mr Cummins' report, together with the offers you made to plead guilty, are a basis for some hope of rehabilitation. It could not be concluded that those prospects are good. Such prospects as you have are dependent on you ceasing your drug abuse.

33 Victim impact statements from Ursula Aruma, the deceased's mother; Sybil Aruma, the deceased's sister; Steel Aruma, the deceased's nephew; Julie Dankevicius, the deceased's partner; and from Ms Dankevicius' son were tendered on the plea. They each speak of the devastating effect of the killing of Mr Aruma on their lives. Ms Dankevicius and her son write of their close relationship with the deceased and of the trauma of witnessing the attack. Mr Aruma's family members tell of their great loss. Mrs Ursula Aruma writes of her loving youngest son, whose life has been taken away from her. Ms Sybil Aruma writes of how this event was a "devastating blow" for herself and for her children, and of her difficulties moving on with her life.

34 This offence is a most serious one. A life has been lost. Both specific and general deterrence are important here. Your criminal history is a poor one. You have used violence and weapons before. You are no longer young. The offers to plead which you made and your expressions of remorse to Mr Cummins are the only indications of hope for your rehabilitation in an otherwise pessimistic situation.

35 Specific submissions were directed by the parties to the Court of Appeal decision in R v Edwards. The Court of Appeal found that the sentence there of 10 years with a non-parole period of 8 years was manifestly inadequate. If R v Edwards was a case closely analogous to your case, a sentence significantly greater than that would be required. I do not consider that the circumstances of your case are closely analogous to R v Edwards because, in brief summary, the circumstances of the incident itself are less serious, you are significantly younger than the accused in R v Edwards, and you have a less serious criminal history and better prospects of rehabilitation.[8]

36 For the offence of defensive homicide I sentence you to 10 years' imprisonment. I fix a non-parole period of 8 years.

37 I declare that 772 days be reckoned as served and I direct that there by noted in the records of the Court the fact that this direction has been made and its details.

[1] [2009] VSCA 232.

[2] Crimes Act 1958 (Vic) s 9AD.

[3] I am bound to sentence on a factual basis which is consistent with the jury's verdict. Otherwise, in relation to matters adverse to the accused, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in the accused's favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].

[4] Transcript of plea, Day 2 (24/07/09), p 20, referring to R v Verdins [2007] VSCA 102; (2007) 16 VR 269 and R v Tsiaris [1996] VicRp 26; [1996] 1 VR 398. At one point counsel for Mr Parr suggested that considerations of general deterrence should be moderated as a result of Mr Parr's psychological condition, relying upon DPP v Arney [2007] VSCA 126. I do not consider that the Court of Appeal decision in that case endorses moderation of general deterrence in these circumstances.

[5] R v Edwards [2008] VSC 297 and [2009] VSCA 232; R v Giammona [2008] VSC 376; R v Smith [2008] VSC 87; R v Taiba [2008] VSC 589; R v Baxter [2009] VSC 178; R v Wilson [2009] VSC 431 and R v Spark [2009] VSC 374.

[6] R v Arney [2007] VSCA 126; R v AB (No 2) [2008] VSCA 39; DPP v CPD [2009] VSCA 114; DPP v DDJ [2009] VSCA 115.

[7] R v Cadoso (2003)137 A Crim Rep 535 (NSWCCA); R v Marshall [1995] 1 Q Rep 673; R v Pota [2006] VSC 248; R v Oinonen [1999] NSWCCA 310. Recently affirmed in R v Borkowski [2009] NSWCCA 102.

[8] As to the specific submissions made by the parties in relation to the Court of Appeal judgment in R v Edwards:

(a) I accept counsel for the accused's submission that the Court of Appeal made it clear that their judgment was about that case only and was not about sentencing practice in defensive homicide cases more generally.

(b) The Court of Appeal held that the sentence of 10 years' imprisonment with a non-parole period of 8 years in that case was manifestly inadequate, but was not so inadequate as to warrant intervention given the considerations of double jeopardy and the approach to sentencing on a Director's appeal.

(c) There are relevant similarities and dissimilarities between this case and R v Edwards. The position in relation to Mr Edwards' guilty plea is relevantly similar to Mr Parr's offer to plead guilty and the consequent jury verdict. Both incidents were very violent but the R v Edwards incident was worse in that there was the continuation of a violent attack after the victim was unconscious and that attack was carried out in the presence of a young child. In both cases the offence was committed whilst on parole. In Edwards the prior convictions were shocking; here the prior convictions are also bad, but not as bad. The most significant difference between the two cases is the age of the accused (at sentence Mr Parr is 31, compared to Mr Edwards' 46 years). It also seems to me, that the prospects of rehabilitation, whilst poor in both cases, are better in this case than in R v Edwards.