R v Perera [2003] VSC 146

8. It is my task to impose the sentence of this court upon you. I am, of course, bound by the jury's verdict.

11. Luke Collins died on 7 July 2001 as a result of a single stab wound to the left side of his chest. The stabbing occurred during an incident involving you and the co-accused, Mark Adamis and the deceased, Luke Collins and others at Northland Shopping Centre on 7 July 2001.

14. The events of 7 July 2001 were preceded by two important and separate incidents.

17. On 27 June 2001, 12 days before the stabbing of Luke Collins, your friend Mark Adamis suffered a nasty, unprovoked attack in a road rage incident involving one Alistair Attard. Adamis was punched viciously in the face. He did not retaliate. Nevertheless, Adamis was very upset by the episode and told you about it. Attard had a reputation for violence and was a youth regarded with fear and circumspection. Regrettably, Adamis did not go to the police.

20. On 4 July 2001, three days before the stabbing of Luke Collins, you were assaulted and robbed on your way home that evening. You suffered injuries to your body and face. You were threatened with reprisals if you went to the police. One of your attackers was vaguely known to you and among other items, stole your mobile telephone. You told Adamis about the incident. Both episodes were critical to the events that were to unfurl on 7 July 2001.

23. Your attack prompted you to make your own enquiries about the identity and whereabouts of your attackers. Regrettably, you too did not go to the police. Rather, you pursued the matter yourself and partly with the assistance of Adamis. These enquiries provoked threats made over the telephone by your attackers. The threats to you were made on the evening of 6 July and about the middle of the day on 7 July 2001. The threats involved threats of violence including the shooting of you and your parents. These matters should have been reported to the police. Your parents were aware of the threats but took no action.

26. At this time, Adamis had stayed overnight at your family's home. You both decided to go shopping at Northland Shopping Centre. You selected Northland because you thought it the least likely venue to encounter those who had attacked and threatened you on the previous Wednesday. Before leaving your home, each of you and Adamis decided to take a knife with you for protection. Two small but sharp knives were taken from your father's shed or workshop. Both knives were very similar. In your case, the knife was so sharp that you made a scabbard for it to avoid cutting yourself or your clothes. I accept that you made the decision to take a knife in the context of having been the victim of an unprovoked assault some days earlier and your fear of meeting your attackers. However, your decision cannot in any way be regarded as justified in the circumstances. It is entirely unacceptable for any member of the community to carry a weapon as you did.

29. Your parents drove you and Adamis to Northland, partly to avoid any possible encounter with those who had threatened you. They left you there early on the Saturday afternoon of 7 July 2001. The shopping centre was crowded and busy at the time. You and Adamis completed your shopping and were ready to leave a little after 3.00 p.m. You and Adamis decided to return to your home by way of bus from Northland. The bus stop was immediately outside the Safeway entrance to the centre. The entrance consisted of an airlock with front and rear sliding glass doors and a side manual door.

32. When you decided to leave, you and Adamis were located approximately in the centre of the shopping complex. In order to reach the bus stop you walked through internal shopping malls. At one point you passed a group of young men seated and standing in the middle of a mall. They were not known to you but were Attard and friends and acquaintances of his, Andrew Davis, Luke Grant, John Hassall and the deceased, Luke Collins. Only Attard was known to Adamis, the rest were strangers. Attard and Adamis saw and recognised one another. Adamis kept walking but told you that one of the group was involved in the road rage incident a few days earlier. Adamis was palpably scared. You and Adamis walked on to the exit and reached the bus stop. Attard and his companions got up from where they were in the mall and followed you and Adamis out to the bus stop.

35. From my observations at the trial, each of Adamis and Attard, Grant, Davis and Hassall were tall, well-built young men. From the pathology evidence, so too was Luke Collins. You were small and slightly built, smaller than you presented at trial by which time you had apparently grown.

38. Luke Collins was, that day, with the group that seemed to have been led by Alistair Attard. I accept that on the evidence at trial, and on the basis of his disturbing criminal record at the age of 21, Alistair Attard is a dangerous and violent individual. On that day, Attard had gone to Northland alone but later met up with the other members of the group, Luke Grant and then a little later on, Andrew Davies, John Hassall and Luke Collins. Both Attard and Grant were friendly with Davies and both knew John Hassall to a lesser extent. Alistair Attard knew the deceased, Luke Collins, but he was not a friend or associate of any kind, he simply knew his face and regarded the deceased as someone to whom he might say "hello". Grant had not met Luke Collins before that day. Whether the group of five young men who came together that afternoon at Northland can properly be described as a gang as suggested at trial is an emotive issue. It is apparent that the deceased, Luke Collins, barely knew Attard and did not know Grant at all. It seems that Davies, Hassall and Luke Collins merely stopped to chat with Attard and Grant and were tragically drawn into another episode of Attard's violent behaviour. It was the ill-feeling between Attard and Adamis that engendered the ensuing confrontation between you and the deceased.

41. I specifically reject the evidence of John Hassall that it was you and Adamis who provoked the subsequent conflict. I accept that you and Adamis made your way to the bus stop in a state of fear and were followed by the group of five led by Attard. It appears that John Hassall and Luke Collins were younger and less established in Attard's group. Possibly Hassall and Luke Collins, through a desire to ingratiate themselves with the others or for some other inexplicable reason undertook, either at the request of Attard, or on their own volition, to make the attack for Attard on that day. It seems that in this way the deceased, Luke Collins, who had no business with either you or Adamis was used and exploited by Attard. Indeed, much of the blame and responsibility for the circumstances that led to the tragic death of Luke Collins must inevitably lie with Alistair Attard.

44. Upon exiting the airlock the Attard group turned left in the direction of the bus stop. Davis and Grant stopped a few metres past the exit. Attard, followed by Hassall and Luke Collins, headed towards you and Adamis. Without any warning or act of provocation on the part of you or Adamis, Attard walked shortly past the point of the bus stop, glared at Adamis, and turned around. Hassall went up to Adamis and punched him in the face. Immediately after the first assault, Luke Collins did the same to Adamis. Each of the punches were described by witnesses and you in your evidence as a "king hit". Both these punches constituted serious assaults that you witnessed in very close proximity and which put you in fear of receiving the same treatment.

47. A scuffle broke out between Adamis, Hassall and Luke Collins with the latter two trying to continue the attack. Adamis pulled out the knife he had taken for protection. Hassall ran away, back inside the centre. Luke Collins commenced to run away over the road towards the car park opposite the bus stop. He was chased by Adamis who was still holding his knife. Adamis pursued Luke Collins in and out of parked cars until Collins crossed the roadway near the airlock and ran back inside. Throughout the chase, Adamis was holding his knife.

50. Meanwhile, when the scuffle occurred at the bus stop involving Adamis, Attard came up to you in a threatening manner and said "What's the fucking problem?" You feared that you would be the next to be punched. You then produced your knife, waved it at Attard and told him to "Fuck off". He backed off. You moved in the direction of the airlock and saw the chase of Luke Collins by Adamis and observed that he was carrying a knife. As you passed Grant and Davis, you waved your knife at them. They left you alone. You proceeded a short way past the airlock and then came back to it. At that stage, Attard, Davis and Grant were all in the vicinity of the airlock but outside the sliding doors at varying distances and locations.

53. You saw Luke Collins and Adamis inside the airlock. Security camera photographs showed that Luke Collins fell over a shopping jeep being pushed by a woman leaving the airlock at that moment. Many witnesses described a standing altercation in the airlock between Luke Collins and Adamis including movements appearing to be punches thrown by Adamis. He was also seen to wave his knife at Luke Collins. The forensic examination revealed a slash to the left sleeve of Collins' jacket. Witnesses also described Luke Collins sliding to the ground with Adamis over him and Adamis making movements that appeared to be kicks and stomps towards Collins.

56. You went into the airlock and saw Luke Collins fall to the ground. You carried a backpack in your left hand and your knife in your right hand held in such a way that the blade was pointing downwards inside your wrist. Different witnesses described the actions of Adamis. No-one recalled specifically seeing you in the airlock. One shopper, Ms Joyce Crathern said she saw a third person appear behind Adamis as he was over Luke Collins. Another witness from outside the airlock, Ms Jessica Robertson, recalled seeing a third person in the airlock.

59. Later you made admissions to the police that you went to the airlock and bent down over Luke Collins and held your knife over his chest on the left side and applied considerable pressure. You told the police that Luke Collins moved up onto the knife. You also said to the police that you were not sure that you had stabbed Luke Collins at all. At the time Collins was wearing a T-shirt and a padded jacket. The forensic examination revealed a series of cuts to the clothing consistent with a single stab with a knife of the type carried by each of you and Adamis. The cuts were to the front left-hand side of the clothing.

62. You told the police that you got up from kneeling over Luke Collins and left the airlock by the front sliding doors. Adamis remained inside the airlock and then left after you but by the side manual door. After Adamis left the doorway he was observed by one witness, Ms Robertson, to be carrying his knife in his right hand. The security camera photographs revealed that Adamis was inside the airlock for approximately 15 seconds and you were there for between three to five seconds.

65. After Adamis left the airlock Luke Collins was seen to get up from the floor and stagger, bleeding, to the bench seat along the mall a few metres inside the airlock. Luke Collins bled profusely and was taken by ambulance to hospital where he died a short time later.

68. After Adamis left the airlock you and he met up a few metres away. A witness outside, Ms Brandli, saw a knife sticking out from the right-hand pocket of your jacket. You and Adamis were pursued by Attard and other members of the group. You both ran away through another entrance to Northland. At one point Adamis dropped his knife and picked it up. You were both pursued out of the centre and eventually were located by the police in an adjacent residential area and taken into custody at approximately 3.45 p.m.

71. The pathology evidence was provided by Dr Burke. He described the cause of death as a single stab injury to the chest applied with mild force that penetrated the heart and left lung of Luke Collins to an approximate depth of 9.5 centimetres. He described the stab track as being from left to right and angled upwards towards the right shoulder. In his evidence, Dr Burke said he considered it unlikely that Luke Collins would have eased up onto the knife but said it was not impossible. There were no traces of DNA of the deceased on either your knife or that of Adamis. Similarly, there was no DNA of the deceased found on your clothing or that of Adamis. Dr Burke considered that a knife of the type carried by you or Adamis was capable of inflicting the wound he observed to the deceased.

74. Initially, in what I refer to as the first phase of your record of interview, you told the police that you did not know whether Adamis stabbed Luke Collins. You said that you did not. At the outset you told the police that you went into the airlock for a few seconds to try to get Adamis away. Later, you admitted to the police "I did it". In the second phase of your record of interview you admitted that you had stabbed Luke Collins as I have already described, that is, that you knelt over him and applied pressure to your knife over his left chest area and that he lifted himself up onto your knife. You were charged with murder. After you made your admission the police released Adamis. He was subsequently charged with murder after the committal hearing. Adamis was acquitted at trial of both the charge of murder and the alternative of manslaughter.

77. At trial you resiled from your admission and gave evidence that you saw Adamis with a knife in his hand during the altercation with Luke Collins in the airlock and that you also saw Adamis punch and jab at Luke Collins. You said you did not stab Luke Collins. You said you made the admissions you did to the police during the record of interview because you were tired and exhausted and wanted to get away from the interview room and, also, because you were threatened by two of the investigating officers, Mr Kilpatrick and Mr Jenks. The jury returned a verdict of not guilty on the charge of murder and a verdict of guilty on the alternative of manslaughter.

80. Plainly, the jury by its verdict found that on 7 July 2001, you went to the airlock near Safeway at Northland armed with a knife, that you produced that knife and used it against the body of Luke Collins. Clearly, the jury was satisfied that you did not intend to kill Luke Collins. Necessarily, the jury found that your act caused the death of Luke Collins, that the act was unlawful and dangerous in that a reasonable person in your position would have realised that your act exposed Luke Collins to an appreciable risk of serious injury. I am required to make a finding of fact consistent with the verdict and I make those findings.

83. Before I move to your present circumstances it is appropriate that I inform you of what you have done.

86. Like you, at the time of his death, Luke Collins was only 17. Like you, he was a young man who had dreams and ambitions. Like you, Luke Collins belonged to a warm and loving family. On 7 July 2001 the life of Luke Collins was lost as a result of a single stab wound inflicted by you.

89. In the course of the evidence on the plea the Crown tendered the victim impact statements of Mrs Duckmanton, the legal guardian and stepmother of Luke Collins and Mrs Duncan, his stepsister. I have read the documents and the attachments, indeed, more than once. They are moving and impressive documents. Mrs Duckmanton has suffered both physically and emotionally since the death of her son. She has described in warm and loving terms her relationship with her son and set out in painful detail the suffering she has gone through since his death and continues to go through. Perhaps her grief is best set out in her own words:

"I had to sell my home a few months after Luke died because I could not enter the house with so many memories of Luke. I could see him everywhere. I have been living with my daughter for almost two years now because I haven't been able to accept my son's death. My life stopped the day he died."

93. Mrs Duncan has described similar emotional pain. Furthermore, her health has suffered. She has also described in painful detail the anguish and grief suffered from the horrendous aspects of the sudden death of her brother and the legal processes that followed. It is apparent from the statement of Mrs Duncan that other members of the family of Luke Collins have suffered dreadfully also. Perhaps, again, the grief and anguish of Mrs Duncan is best set out in her own words:

"There are no words to describe the pain that is etched into my soul my very own sense of being. How do I explain what it feels like to have strangers within a court room try and make out that Luke was something that he was not? I can tell you that it fuels a fire of anger that burns deep within my being. An anger that I have had to constrain during proceedings yet can erupt at home at any given moment and the ones that suffer are my one year old and four year old children ... [She continues] ... How do we learn to live with the knowledge of the circumstances surrounding Luke's death? I am constantly thinking about the fear that Luke would have experienced when he realised that blood was pouring out of him and that he had been stabbed. He experienced a fear that we could only ever experience in our worst nightmare. We are left with questions that we will never receive answers to. How do we know what Luke could have become or could have been? ... "

97. Mrs Duncan demonstrated vividly in her statement that Luke Collins will be missed forever by his family. It is apparent to me that the lives of the members of the family of Luke Collins have been afflicted by their tragic loss and that they will continue to be so afflicted.

100. I turn to your circumstances. Your family emigrated to Australia from Sri Lanka when you were seven. You did not speak English but clearly developed a high level of articulation in the language. You have always lived with your parents, both of whom are Sri Lankan and your sister is now aged ten. The family is Singalese. Your father is apparently a hard working man, very occupied by his job as an auto electrician by day and another job at a software company at night. Your mother does not work outside the family home and speaks very little English. Much of your personal history is contained in the two reports of Mr Ian Joblin, forensic psychologist.

103. You have been a good and obedient son to your parents and worked and studied hard. In the latter part of 1999 your father was diagnosed as suffering depression. Mr Joblin described your father's condition, as instructed, as being bi-polar. Your father's ill-health led to the temporary break-up of your family with your mother and sister returning to Sri Lanka. You followed. Eventually the family was reunited in Australia and you played a significant part in your parents' reconciliation. These difficult circumstances prevailed in the first part of 2001. At the same time you were struggling to study and work in order to pay your university fees. Furthermore, there were significant problems in the family coping with your father's illness. It was a concern to you. Mr Joblin stated that persons with mood fluctuations as seen in bi-polar disorder are extremely difficult to live with.

106. Since arriving in Australia you have progressed well through your primary and secondary education and you are presently enrolled at Monash University in the degree of Bachelor of Software Engineering. You have had to work to meet the costs of your tertiary education, including course fees. You have been enrolled in the degree since 2001; you have presently deferred. The degree course is apparently one to which it is difficult to gain entry. You completed the first semester of 2001 but the second semester was not completed because of the charge against you and your being in custody. You were granted bail on 19 October 2001 and in 2002 you completed two semesters. You have deferred the first semester of 2003 due to the demands of the trial. As a consequence, your tertiary studies have been substantially interrupted by events. Your counsel, Mr Toohey, informed me that unless you return to your studies in the second semester of 2003 you will lose your place at the university. However, no evidence in support of that matter was put before the court.

109. Character evidence was given by your employer, Mr Carlo Vaccari, a manufacturer of power transformers and wholesaler of electrical insulating materials. He has known you for about three years. He described your work on the development of websites. Mr Vaccari described you as reliable, truthful, punctual, extremely competent, very bright and a person of quiet demeanour. Mr Vaccari also employs your father in the nightshift. He described your relationship with your father as close. Mr Vaccari said he was flabbergasted when informed of the criminal charge against you.

112. It is apparent that you have maintained a strong commitment to your Singalese culture and the Buddhist religion. Since emigrating to Australia you have attended religious and cultural studies at your community's school on Sunday mornings. You developed into a leader at the school. You have intensive commitment to and support from the Singalese community. Character evidence in this respect was given by Mr Gamage and Mr Jayasinghe and further by the chief monk at your Buddhist temple, the Venerable W. Didamadalld. Your Buddhist upbringing is one of not killing or hurting anything or anyone. The witnesses from the Singalese community expressed surprise at the criminal charge against you and suggested it was entirely out of character.

115. It is clear from my observations of your evidence at trial and the evidence on the plea that you are an intelligent young man who, until the incident at Northland on 7 July 2001, had been a decent young citizen who achieved academically. Doubtless you had a fine future before you. I accept that your good character extends beyond your lack of prior convictions and dealings with the police and goes to your good conduct as a son and brother, as a student and employee and as an involved and engaged member of your ethnic and religious community.

118. Having referred to your previous good character I observe one character defect that has become apparent and it is your propensity to lie to suit your own purposes in any given situation. Indeed, you admitted as much in the course of your evidence at trial. I mention this matter because it is indicative of your immaturity despite your outward appearance of self-possession.

121. You spent some months in custody in 2001, one month of that period included custody at the Melbourne Custody Centre, a very difficult and undesirable place for a 17 year old youth to find himself. Other time in custody, prior to bail being granted and since verdict has been in the Melbourne Assessment Prison ("MAP"). Mr Joblin made an assessment of you after four months in custody in 2001. In his first report he described you as suffering stress and anxiety in prison. Mr Joblin referred to difficulties experienced by you at MAP. In his evidence before me, based on 25 years' experience in prison systems, Mr Joblin expressed the view that because of your stature and naivete, you are at risk of being overborne and overpowered in custody particularly in the adult prison system. The Crown did not challenge that opinion.

124. Mr Joblin stated that you were extremely distressed over the verdict of guilty of manslaughter and concerned that Adamis was acquitted. He said you maintain that you were not responsible for the death of Luke Collins. Mr Joblin stated that you regret going after Adamis but that you only did so in order to stop him. Mr Joblin also stated that you did not know or have anything against Luke Collins whilst Adamis did. Nevertheless, Mr Joblin states in his assessment that you regret the events that happened but consider that if Luke Collins had not attacked Adamis then events would have been different and Luke Collins might still be alive. Such attitude avoids the stark reality that if you had not gone to Northland that day armed with a knife, you could not have inflicted the fatal wound into Luke Collins.

127. There is the matter of the extent of your remorse. Mr Joblin endeavoured to describe substantial remorse on your part. However, you remain adamant that you were not the one who stabbed Luke Collins. You have not shown, therefore, complete remorse for your actions. You are not entitled, therefore, to the full benefit of remorse despite matters described by Mr Joblin.

130. Mr Joblin observed that you do not appear to suffer any psychological abnormality or personality disorder. He further observed that you have no history of violence, recklessness, drug use or financial difficulties. Indeed, your counsel was at pains, many times, to emphasise that before this episode you had not had any dealings with the police.

133. In your favour you are a very young man whose conduct in the stabbing of Luke Collins seems to be an aberration of character. You are also supported by your immediate family and your cultural community. You have extremely high prospects of rehabilitation. Indeed, your prospects for rehabilitation are largely based on two significant factors: your youth and the continuation of your tertiary education. These are important factors operating in your favour. In my view, therefore, it is highly desirable that your sentence support your rehabilitation in two ways. First, by facilitating supervision by parole authorities for a longer period than would ordinarily be the case. Secondly, by facilitating the opportunity for you to resume your tertiary studies within a reasonable time in all the prevailing circumstances.

136. Nonetheless, the charge of manslaughter is an extremely serious offence. It carries a maximum penalty of 20 years. The pivotal fact that led to the stabbing of Luke Collins was your possession and use of a knife. Time and again the young men of our community arm themselves with knives allegedly for protection and repeatedly their action results in tragedy such as this, the death of a very young man, a life lost and wasted with all its surrounding consequences. There is a disturbing rise in the number of young men carrying knives and using them in situations of conflict. The presence of weapons escalates and intensifies any situation of violence and this case has been yet another terrible example. The sentence I impose on you must act as a general deterrent. Give the tragic consequences of your immature actions, I do not consider special deterrence has significant weight in your case. However, I am required to allocate significant consideration to your youth and your rehabilitation. It was submitted on your behalf that I consider sentencing you to a term of imprisonment in a youth training centre or, even, suspending your sentence in part or in whole. Such approach would restrict the sentence to a maximum sentence of three years' imprisonment. The Crown opposed that course on the basis that such maximum available sentence would be insufficient and inadequate for your crime. I accept the position of the Crown. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided. However, the three year limitation on sentence would fail to reflect the gravity of your crime; although in terms of the types of this crime that come before the Court, it is of a lower degree than some. A sentence can be set that reflects such gravity but makes appropriate allowance for your youth, rehabilitation and prior record by way of a lower head sentence and a lesser non-parole period than would ordinarily be the case. In light of your youth, your prospects of rehabilitation including your educational needs and the matters described by Mr Joblin, the Adult Parole Board may consider it appropriate to exercise its powers under s.244 of the Children and Young Persons Act 1989. But that is entirely a matter for the Board.

139. Weighing all these matters up I am satisfied that you should serve a custodial sentence for causing the death of Luke Collins.

142. I sentence you to a maximum term of five years' imprisonment. I direct that you serve a non-parole period of three years'. I declare a pre-detention period of 137 days under the Sentencing Act 1991 and direct that a notation to that effect be made on the court file. I observe that I have previously made orders by consent under s.464ZFB of the Crimes Act 1958. I direct that a copy of these reasons and the reports of Mr Joblin and the transcript of his evidence on the plea be forwarded to the Adult Parole Board forthwith. Finally, I note that Alistair Attard was a witness for the prosecution in the trial of Suranga Perera and at the time of his evidence he was serving a term of imprisonment. This matter should be noted by the corrections authorities.