R v Robinson [2012] VSC 52

2 In 2008 Mr Satouf had been the victim of an assault and as a result it was his custom to carry a knife to protect himself. At about 10.00pm on 16 November he left his flat carrying a backpack and he was seen to place a pair of scissors in his pocket. He left the flat and while out made two calls to Johanna Towson-White, who was at his flat awaiting his return. In the second of the calls he told her he was near the intersection of Boundary and Macaulay Roads and she expected him home in five minutes. Shortly after that he walked past Bradley Harvey's home at 44 Buncle Street, North Melbourne, where you were drinking with Bradley Harvey and Nicholas Cummins. Bradley Harvey was the best friend of, one, Brendan Cottier and there had been, in the two or three weeks earlier, an incident between Mr Satouf and Brendan Cottier's mother, which you knew about and was somewhat aggrieved by.

3 You, Cummins and Bradley Harvey were seen to chase Mr Satouf from the intersection of Buncle and Pampas Street, North Melbourne, and you in particular were seen to rush towards Mr Satouf as he was walking backwards. As he tried to run from you he turned to face you and you were seen with both arms up in a threatening manner, yelling "What did you do that for?" You began to assault Mr Satouf. Mr Satouf produced a knife and waved it in front of him. You then kicked him in the side, causing him to fall to the ground and your dog started to bite at his legs. Mr Cummins also punched Mr Satouf to the right side of the face but you continued to assault him by punching and kicking him to the head and face, while yelling out words to the effect "Don't call me a junkie dog."

4 You continued to assault Mr Satouf by kicking him to the upper left side of his body and punching him to the head and face with both hands. Mr Cummins was also punching the deceased to the face, neck and temple area. Mr Satouf was not able to defend himself and at this point he was lying on the ground. You and Cummins continued to punch him and you kicked him to the head and stomped on him twice while Cummins kicked Mr Satouf to the ribs and stomach area. Mr Cummins stopped kicking Mr Satouf and walked off in a northerly direction, but you remained, if only for a short time. You then began to stomp heavily on Mr Satouf's head and upper body. Mr Satouf appeared to be out cold and was motionless.

5 One witness, Ms Robinson, who was looking out from her upstairs window, yelled out for you to stop, that you were going to kill him, and you replied telling her to shut her mouth. You continued stomping on Mr Satouf's head another four to six times. Another witness was heard to call out to you to stop but instead you stomped on Mr Satouf's head two more times. You continued to stomp on Mr Satouf and then punched him a further two or three times before walking off and joining up with Mr Cummins. You both walked past two security guards who had heard a female voice cry for help. They asked whether you were all right and one of you replied in the affirmative.

6 You both returned to your flat but in the interim the security guards had discovered Mr Satouf. He was seen to have a black-handled kitchen knife in his left hand. His backpack was located near him and the guard placed it under Mr Satouf's head and when doing so saw a pair of scissors near his face and part of a dog chain lying on the ground. It is not put that the dog chain was used in the assault. Ambulance and police were called to the scene, a number of neighbours having rung 000. Mr Satouf was subsequently conveyed to the Royal Melbourne Hospital.

7 On route to your flat you had received a call from Jessica Croucher, who had seen what happened, and she asked you why you assaulted Mr Satouf. You told her it was because Mr Satouf had put a knife to your mate's mum in front of his mate's daughter who you said you thought was either two years or six months old. You and Mr Cummins remained at that flat for some 50 minutes. You both changed your clothes and at 11.40 pm left and went to Harvey's place in Buncle Street. After a short time there you both left, you again having changed your clothes, and hailed a taxi at the corner of Mount Alexander and Racecourse Roads. Mr Cummins dropped you off at the North Melbourne flats and he continued on to his home.

8 At 5.24 am Jessica Croucher and her sister, Alicia, went to your flat. Alicia stayed only a short time. You told Jessica, when asked why you assaulted Mr Satouf, words to the effect that the old guy had pulled a knife on your mate's mum in front of his mate's daughter. You and Jessica stayed at the flat. You expressed your concern that the police were after you and you asked Jessica to remain at the flat with you. You both stayed there until 9.20am when you left together and it was at that time that you were arrested out the front of your flat.

9 You were conveyed to the Melbourne North Criminal Investigation Unit and participated in a video recorded interview wherein you gave a false account as to your activities on the previous night. You were later examined by a forensic medical officer and observed to have a number of small healing wounds, scabs and abrasions and redness to both hands.

10 In the interim Mr Satouf was undergoing emergency medical treatment. He was found to have a haemorrhage to the brain, broken ribs, a ruptured spleen, a leaking or collapsed lung, spinal injuries, a possible fracture to the skull and bites and lacerations to the ankle or lower legs, said to be consistent with a dog biting him in that area. As a result of the injuries sustained he underwent numerous operations including the removal of a piece of skull to allow the brain to swell and was placed into an induced coma in an effort to save his life. Such efforts, however, were unsuccessful. On 24 November 2010 life support was removed and at 12.05am on 25 November he was pronounced dead.

11 On the following day a post-mortem was conducted by forensic pathologist, Dr Noel Woodford. He determined that Mr Satouf had died as a result of the injuries sustained to his head. Dr Woodford found that there were distinct areas of blunt force trauma to the top of the head, both sides of the face and the upper body generally.

12 Mr Satouf was 61 years old. He had come to Australia from Lebanon in the early 1970s. He was employed from 1986 to 1990 at the Ford factory in Campbellfield. In 1990 he had had an operation on his lungs and did not return to work after that. He was in receipt of a disability pension and at the time of his death he was living in the Ministry of Housing flats in Canning Street, North Melbourne, where he had lived for the previous eight years.

13 Mr Satouf was well known in the Melbourne Lebanese community. He was married although separated from his wife and the father of two adult children. Victim impact statements tendered on behalf of his wife, Mrs Satouf, his daughter, Sandy, and son, Steven, speak eloquently of their loss and grief and no sentence this court can impose can restore to them their loved husband and father.

14 The maximum penalty for the crime of murder is life imprisonment. The Crown puts its case against you and the plea has been accepted on the basis of reckless murder; that is your state of mind at the time you were committing the acts, which were a cause of Mr Satouf's death, were such that you foresaw that really serious injury would probably occur but you continued nonetheless.

15 Your counsel, Mr Meredith submitted, and the Crown accepts, that the requisite state of mind only existed towards the final stages of the assault, that is at the time you were stomping on Mr Satouf's head. Mr Meredith also submitted that the assault was a fast moving, evolving and fluid situation. You were heavily intoxicated and apparently now have a patchy recollection of the events. You yourself had been the victim of an assault by a group of males in the North Melbourne flats on 26 October when you and Bradley Harvey had been jumped upon and you were stabbed three times, suffering puncture wounds to your back, one of which narrowly missed vital organs. Mr Meredith submitted that it may be that this experience, together with your drunken perceptions and the response to the production of the knife by Mr Satouf, contributed to the dynamics of the situation. It appears that Mr Satouf had not been physically assaulted until he produced the knife but it was from that point that the assault escalated.

16 Mr Meredith submitted that you are remorseful for your conduct. Although you endeavoured to distance yourself from the assault in your record of interview, you nonetheless acknowledged your responsibility for causing Mr Satouf's death when you first offered to plead guilty to manslaughter on the first day of the committal and then, at a later time, when you again offered to plead guilty to manslaughter or defensive homicide. Those offers having been rejected, were put once again when Mr Meredith came into the case some time prior to last Christmas. I accept therefore that despite the stance taken by you in the interview, you have from a relatively early stage accepted your responsibility for Mr Satouf's death and such acceptance and acknowledgment culminating in your plea of guilty to the crime of murder.

17 Your remorse is further evidence by a letter written by you, addressed to the Court, and tendered in evidence as Exhibit 1. In that letter you express your remorse in the following terms:

"Words cannot ever explain how sorry I am and the guilt I feel knowing that this person also has a family that loves him and are missing him very much. What has happened has caused a lot a hurt and sorrow to both families affected because of this one terrible night. I have to, and will have to live with my conscience for the rest of my life. I can never express enough how sorry I am for my actions."

18 Testimonials by Shea Linsell, Linda Ljubic and Ashley Moore, were also tendered in evidence. They each speak of your remorse and the fact that you now accept full responsibility for your actions.

19 I accept that your remorse is genuine and that your plea of guilty to the crime of murder is a demonstration of that remorse, particularly in circumstances where you are said to have a patchy recollection of the events and where your view of it is that you and Mr Cummins were in it together and assaulted Mr Satouf in much the same way and where your co-offender, Nicholas Cummins, pleaded guilty to manslaughter. I accept also that by pleading guilty to the crime of murder, you have not only saved the community the cost of a trial, but also Mr Satouf's family and the witnesses generally the ordeal of one.

20 I turn now to matters personal to you. You were 24 when you committed this offence and you are now aged 25. Your parents separated when you were two years old. Your father was said to be a heavy amphetamine user and involved in crime. His relationship with your mother was said to be violent. You have one sister who was present in court and supports you in your predicament and you have a number of half brothers and sisters, children of your father, whom you have never met. Indeed, you have had no contact whatsoever with your father since he and your mother separated. Your mother is profoundly deaf and you communicate with her in sign language. She became a heavy drinker and developed psychiatric problems and is described as "paranoid schizophrenic". Upon separation from your father, your mother formed another union with a man who, himself, was a heavy drinker. Between the ages of five and a half and 16, you were brought up by your grandmother in a two bedroom Ministry of Housing Flat in Ascot Vale. At one point your aunt, your mother's sister, also came to live in that flat, but ultimately she died of a drug overdose and your grandmother then continued to care for the extended family.

21 When you were eight, you were struck by a car while riding your bicycle. You were rendered unconscious at the scene and admitted to the Royal Children's Hospital where you remained some ten days. A speech pathology report and a psychological report dating from that time were tendered in evidence respectively as Exhibits 2 and 3. You are described therein as having an average range of intellectual ability, although you experience deficits in a number of neurological skills.

22 You attended the Ascot Vale Primary School and Footscray Secondary School. It is said that you always struggled at school and you left half way through Year 9 when you were 15. Also at this time, you left your grandmother's home and then lived between friends, your girlfriend, mother and grandmother, until you secured the tenancy of the Housing Commission flat in North Melbourne. When you were 17 you attempted to return to school and you did four or five months of the Victorian Certificate of Applied Learning Course at the Footscray TAFE. You have also held various jobs, working at the Royal Show since you were 13 and with the company, Cleanevent, at the Grand Prix and Flemington Racecourse. You also worked at a motor cycle shop for six months and more recently, from January to May 2010, working six days a week as a meat packer with Top Cut butchers.

23 As at November 2010, you were endeavouring to obtain a "red card" which would permit you to work on building sites and a "white card" which would enable you to obtain a job in traffic management and, indeed, your friend, Ashley Moore, had taken steps to secure your employment in that field.

24 You commenced smoking cannabis at the age of 14 and apparently that habit has waxed and waned over the years. You started drinking alcohol at 18 and it is said that when you were 20 you drank heavily for about a year, but that you had moderated your drinking habit since and would describe yourself as an episodic drinker.

25 There is no doubt that on this night you were heavily intoxicated. You had been drinking Bourbon and beer and indeed it appears you had been drinking in that fashion for a couple of days leading up to the assault. In my view you will have to address the issue of alcohol in your life if your rehabilitation is to be achieved.

26 Apart from Children's Court matters you appear to have been dealt with in respect of 32 offences between 2005 and 2009. The circumstances of those prior matters were explained to the court by Mr Meredith. Apart from the most recent offences in 2009, they have resulted in the imposition of community-based orders which were said to have reflected the difficulties in your life at that time. Your offending includes, inter alia, theft of a motor vehicle and attempted theft, shop stealing, intentionally and recklessly causing injury, assault police and intentionally damaging property. A number of these offences appear to arise out of a pugnacious attitude on your part. The two community-based orders were breach for non-compliance and this was said to have occurred in the context of your disorganised and transitional accommodation at the time. More relevantly, in March 2009 you were sentenced to an aggregate of six months' imprisonment, three months of which were suspended for 24 months, and accordingly you have committed this offence during the operational period of that suspended sentence.

27 You are the father of a five year old girl, Taylor, upon whom it is said you dote, and it is said that you have an on-again, off-again, relationship with her mother, who, herself, has formed another union. The child's mother, nonetheless, has been co-operative to date and you have been able to see your daughter while in custody.

28 Various testimonials tendered on your behalf attest to your qualities; the love of your daughter, your loyalty and support for your friends and family. Your grandmother and mother support you in your present predicament but as I understand it your grandmother is in ill health and they are both said to be too overawed by these circumstances to physically attend court to support you.

29 Your counsel has submitted that not withstanding your prior matters your prospects for rehabilitation are quite good. Your offending in the past had occurred at times of personal difficulty for you and instability in your accommodation. Nonetheless, you have been able to find work and you were in the process of obtaining work when you committed this offence. Mr Meredith submitted that despite a background of what he described as "really appalling disadvantage" you are, nonetheless, a good candidate for rehabilitation. You are appropriately remorseful, you acknowledge your responsibility for having murdered Mr Satouf, you have demonstrated an ability to work, and I note in this regard that while on remand you have been working in the laundry and have participated in a number of programs designed to assist your rehabilitation. It is said that you are keen to undertake some further study with VICAL and upon release you are hopeful that you could run a small business such as lawn mowing or landscaping or undertake social welfare studies. I note in this regard that your proficiency in sign language is a valuable skill.

30 I turn now to the nature and gravity of the offence here committed. Mr Meredith submitted that as an example of murder your offending falls towards the lower end of the range and that in the circumstances of this case your state of mind should be viewed as less morally culpable than if it were a case of intentional murder, the foresight of probable consequences being inherently less morally blameworthy in these circumstances than an intention to kill or to cause really serious injury. Mr Meredith relied upon the introduction of the knife by Mr Satouf into the confrontation, your sensitivities and perhaps drunken perceptions, given that you had recently been the victim of a stabbing attack, and your heavily intoxicated state which must have clouded your judgment.

31 Mr Rochford SC, who appeared on behalf of the Crown, did not take issue with this submission. He submitted that upon the instructions of the Director of Public Prosecutions the sentence range for this offence fell between a head sentence of 15 to 18 years with the non-parole period between 10 and 13 years. In doing so he relied upon the Sentencing Snapshots for the crime of murder and the sentence imposed by the Court in R v Rachael Hegarty.

32 Nonetheless, you have committed a serious offence and any sentence imposed must have due regard to the nature and gravity of your offending conduct and the need to pass a sentence which will serve to punish you and act in denunciation of your conduct.

33 On any view of it Mr Satouf was a much older man, out on his own at night in his own neighbourhood. He was on his way home and was no trouble to you. Certainly, once the knife was produced the dynamics changed but you and Mr Cummins were the ones who took it further, and you in particular took it further again by brutally, and by what must have been, forcefully, stomping on Mr Satouf's head at a time when he was down and not moving and at a time when your co-offender had stopped and moved off, no matter how shortly before.

34 Any sentence imposed must also signal to like-minded members of the community that violent acts such as these will always result in condign punishment. Any sentence imposed must also give effect to specific deterrence to render it less likely that you will re-offend in a like manner, and I note in this regard that previous dispositions have failed to deter you from re-offending.

35 In sentencing you I take into account your age at the time you committed this murder and now, and that at the age of 25 you are still a young man and as such your rehabilitation carries considerable weight, and in my view, if you address the issue of excessive alcohol your rehabilitation is achievable.

36 I take into account also your genuine remorse, your plea of guilty to the crime of murder which, as I stated previously, I accept is also indicative of your remorse, and I take into account also that by reason of your plea you have saved the community the cost of a trial, which trial would have involved an extensive voir dire, and by reason of your plea, the Satouf family have been saved the ordeal of a trial.

37 Further, I give you a significant discount for the plea of guilty as you are pleading to the crime charged, and implicit in that is that by reason of your plea you have forgone any prospect of being convicted of a lesser offence.

38 I take into account also that you have suffered a difficult childhood and adolescence but despite that you nonetheless demonstrate a reasonably good work ethic and that while in custody you have taken steps directed towards your rehabilitation. In short, I take into account all matters which go in your favour and, having due regard to the sentencing range submitted by the Crown, and taking into account also the provisions of s 5 of the Sentencing Act, and in particular, s 5(3), which provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed. Accordingly, for the crime of murder, you are convicted and sentenced to 15 years' imprisonment.

39 In order to further address your prospects for rehabilitation I hereby order that you serve a period of 10 years before becoming eligible for parole and I declare that you have already served, by way of pre-sentence detention, a period of 462 days. I declare, pursuant to s 6AAA of the Sentencing Act, that were it not for your plea of guilty to the crime of murder I would have sentenced you to a sentence in the vicinity of 20 years with a non-parole period of 16 years.