R v Smith [2008] VSC 617

3 A neighbour, on hearing yelling and the sounds of fighting, called 000. The police arrived and saw you stooped over Mr Leone as he lay on the pathway outside the flat and you appeared to be punching him. As the police approached, you stood up and as you did so a knife fell to the ground. You walked towards the police saying to them, "I stabbed him in self-defence". You were immediately taken into custody.

4 Through the quick thinking of the police present, a tape recorder was placed at the head of Mr Leone and he spoke while awaiting the arrival of the ambulance. He named you and said that there had been a fight about picking up rubbish. He also told the police that you "reckon I threatened him, but I didn't", and that you had stabbed him some 50 to 60 times and he had tried to fend off the attack.

5 The ambulance arrived and Mr Leone was taken to the Warrnambool Hospital but he died shortly thereafter.

6 A postmortem conducted the following day determined that Mr Leone had suffered 62 incised injuries, 46 of which were described as of a stabbing type. The injuries were distributed over all four limbs, the head, neck and trunk. The incised injuries to the trunk were present on both the front and back. In addition to the major penetrating wounds, Mr Leone had injuries to the palms of his hands and the web space between the fingers which Dr Ranson, the pathologist, opined may occur when a person is attempting to ward off a sharp instrument. Dr Ranson determined that the cause of death was stab wounds to the neck, head, chest and abdomen.

7 Laboratory tests on specimens collected from Mr Leone's body at the autopsy indicated that he suffered with the Hepatitis C virus and had used cannabis in the recent past.

8 You were spoken to by the police at the Warrnambool Police Station and later by officers from the Homicide Squad. You told the police that you and Mr Leone were having an argument about Hepatitis C and he stood up and threatened you, saying, "I really will show you how to kill someone", and you said he punched you once. You went on to say, "He's looked at the knife and I thought, 'Shit, he's going to go here, he's going to fucking go me', so I ran to the knife, got it, and started stabbing him and he's - there's a struggle, like, and he was over-powered and I was over-powered and I just kept stabbing because I thought he was going to kill me, too. He was talking too much shit about murdering and like, yeah." (Question 46 of the interview.)

9 Mr Leone denied that he threatened you, although he acknowledged that you thought he did. You told the police you were punched by Mr Leone, although there is some suggestion that the blow did not connect, and you also told the police that Mr Leone had suggested that you were gay.

10 You gave yet another account when first seen by Dr Walton, consultant psychiatrist, in March 2007.

11 In these circumstances I cannot be satisfied as to what happened in the flat, whether it was nothing at all, an incautious remark or some minor assault. Whatever it was, it caused you to respond with a ferocious and frenzied attack which resulted in Mr Leone's death.

12 Mr Leone was 31 at the time of his death. His birthday had been two days earlier. He had been diagnosed with paranoid schizophrenia, poly-substance abuse and anti-social personality disorder. He was the subject of a community treatment order which had been extended in his absence the day prior to his death. Nonetheless, he was living independently in the community with the support of his family. Indeed, his mother had had lunch with him only hours before his death and she reported that he then appeared well, both physically and mentally, and that he was not agitated or mentally unsettled.

13 He was a much loved member of his family, as is apparent from the victim impact statements made by his mother and father, Judith and Frank Leone, his sisters, Nicole Ploughman, Joanne Vermeend, Belinda Leone, and his brother, Simon Leone. They individually and compendiously speak eloquently of the grief, distress and sorrow at the loss of a loved son and brother. Your actions have greatly impacted upon Christopher Leone's family and no sentence this court imposes can restore their loved one to them.

15 You are one of three children and your early childhood years were spent in Warrnambool. Your father travelled away from home during the week to pursue employment in the construction industry, returning to Warrnambool on the weekends. Eventually, in the further pursuit of his employment, the family moved to Queensland and you attended the Sunshine High School until Year 11. Your father returned to Warrnambool for work and the family eventually reunited in Warrnambool and you completed your VCE at the Warrnambool High School in 2004.

16 You had been a competent footballer and basketballer and one of your teachers, Ms Kathleen Stacey, who gave evidence on your behalf, described you as academically capable with the potential for tertiary studies. However, during your VCE year your attention waned and you did not do as well as you might. It appears that your sporting abilities also declined during this time. This decline appears to coincide with your illicit drug use and it appears that during 2005, as your drug use continued, your mental state deteriorated.

17 Nonetheless, upon leaving school, you were able to apply yourself and you obtained a dogman's ticket, an elevator work platform ticket, and a red card, all of which qualify you to work in the construction industry in Victoria and, indeed, you did work as a trade assistant at a gas plant until May 2005.

18 Your mother, Deborah Smith, gave evidence on your behalf. She spoke of your deteriorating mental state, your unpredictable and at times aggressive behaviour, and your ongoing drug use which the family did not initially suspect. Your behaviour was such that you were admitted as an involuntary patient to Ward 9, the psychiatric ward at the Warrnambool Hospital, on 19 May 2005, and at that time you were diagnosed with a drug induced psychosis. You were discharged under a community treatment order but that order was revoked and you were re-admitted as an involuntary patient for a week in September 2005 following upon an incident when you threatened your brother with a knife. Upon your discharge you were referred to Forensicare and remained under the management of psychologist, Simon Woodfirth, your case manager, and you were seen every one to two months by a psychiatrist and you were on antipsychotic medication. Indeed, you were last reviewed by a consultant psychiatrist on 22 May 2006 and seen by a consultant psychiatrist and mental health clinician at a video hearing of the Mental Health Review Board on 13 June 2006 when your community treatment order was extended. This hearing was the day before the offence occurred.

19 Your mother gave evidence that your behaviour was a cause of great concern involving, as it did, threatening your brother with a knife and self inflicting injuries in circumstances which you could not explain. There were also instances of irrational and fantastic behaviour such as claiming that you had been raped by a fictional television character, Tony Soprano, and alleging that a long-standing family friend had molested you many years previously, and stealing a car to drive to Canberra to speak to Prime Minister John Howard.

20 Your family sought the continued assistance of mental health professionals and your general practitioner and finally they were able to place you in a rehabilitation program at the Western Regional Alcohol and Drug Centre, although that placement was postponed and tragically this offence intervened.

21 Your father gave evidence on your behalf. He has loyally visited you once or twice a week since you have been in custody. He has described your condition in the months when you were first incarcerated as if talking to a block of wood but that over time he has observed your improvement and growing insight into your offending conduct and its consequences for all concerned.

22 It is hoped that upon your release you will live in Western Australia, where your mother now resides and, with the assistance of a family friend, Stephen Grey, who also gave evidence on your behalf, that you will obtain suitable employment in one of his business ventures in that State.

23 You are now aged 21. You were 19 when you committed this offence. Indeed, your birthday was just eight days earlier. You have admitted eight prior convictions, all recorded in June and July of 2005. None of your offences are for offences of violence and two are drug related. Despite these modest convictions and by reason of your age, you are to be sentenced as a youthful offender and the principles of R v Mills[1] are here applicable.

24 Two reports by Dr Lester Walton, consultant psychiatrist, dated 3 July 2007 and 29 May 2008, were tendered in evidence on your behalf as Exhibits 2 and 3 respectively. He has seen you on two occasions while you have been in custody in St Paul's Psychiatric Unit at Port Phillip Prison. Dr Walton has reported that although you were previously diagnosed as suffering a drug induced psychosis, in his opinion it is now well established that you are suffering from schizophrenia, although likely aggravated by your past drug abuse, and that you were mentally ill at the time of the offence and that your psychotic condition made at least some contribution to your violent behaviour. In his opinion, you have also gained insight into the fact that you are suffering from a mental illness which requires ongoing treatment, and that as your illness responds to treatment this has favourable implications for your prognosis and lessens the risk of recidivism. You will, however, require ongoing psychiatric treatment indefinitely.

25 Dr Walton has also noted your expressions of remorse and empathy towards Mr Leone's family which he said is now more apparent than he had observed previously.

26 I accept, therefore, that at the time of the offending that you were then and are now suffering from a serious psychiatric illness and that by reason of your mental illness the principles of R v Verdins; R v Buckley; R v Vo[2] and R vTsiaras[3] are here applicable and considerations of specific and general deterrence should therefore be sensibly moderated.

27 You were originally presented on a charge of murder but you pleaded guilty to defensive homicide on the basis that you believed it was necessary to do what you did in self-defence but that you did not have reasonable grounds for that belief. It is not disputed that you genuinely held the belief that your life was threatened and although it is uncertain as to what occurred in the flat which caused you to act as you did, by your plea and the Crown's acceptance of it to the crime of defensive homicide, you have acknowledged that there were no reasonable grounds for believing that it was necessary to act as you did in self-defence.

28 The maximum penalty for the crime of defensive homicide is 20 years' imprisonment. Therefore it is regarded by Parliament as a serious offence. Although it carries the same maximum penalty as the crime of manslaughter it may be distinguished from that offence because it requires the perpetrator to form an intention to kill or to cause really serious injury.

29 In sentencing you I must take into account the nature and gravity of the offence here committed which has resulted in the loss of life of a young man in circumstances which, apart from your mental illness then operating upon you, is otherwise totally inexplicable.

30 In sentencing you I take into account your plea of guilty and give you a discount for it, for although your plea was entered at the time the trial was to commence you had always acknowledged that you killed Mr Leone. The only issue to be tried was either your mental capacity or the issue of self-defence.

31 I take into account also that by reason of your plea you have saved the community the cost of a trial and, more importantly, the Leone family the ordeal of one.

32 I take into account also that you have developed insight into the impact of your offending conduct upon the Leone family and indeed your own family and that you have expressed remorse for your conduct.

33 I take into account your age then and now and that by reason of your age and your minor prior criminal history you are to be sentenced as a youthful first offender.

34 I take into account also that you are suffering from schizophrenia and that at the time of the killing you were mentally ill.

35 I take into account also that provided you retain your current insight into the absolute necessity of remaining under psychiatric care and management, with the continued support of your family, your rehabilitation is certainly not without hope and may be said to be relatively favourable.

36 In sentencing you I take into account all matters which go in your favour and without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to seven years' imprisonment.

37 In order to enhance your prospects for rehabilitation and to provide you with the appropriate structure to accordingly enhance your rehabilitation, I propose to order that you serve a period of four and a half years before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 855 days.

38 Do you understand the sentence I have imposed upon you? It is a sentence of seven years' imprisonment with a non-parole period of four and a half years, and I declare of that sentence you have already served a period of 855 days.

40 Mr Goetz, I have also been asked to sign a confiscation order pursuant to s.78(1) of the Confiscation Act. The schedule relates to certain swabs taken from the crime scene.

42 Mr Smith, I have also ordered that you provide a sample of your saliva for the purposes of the DNA database because of the seriousness of the offending, but I am obliged to tell you that the police are entitled to use reasonable force to obtain such sample so that you would readily see that the better course is to cooperate with them in the provision of that sample. So I have made that order pursuant to s.464ZF(2) and I have also made the disposal orders pursuant to s.(1) of the Confiscation Act 1997.

[1] [1998] 4 VR 235

[2] [2007] VSCA 102; [2007] 16 VR 269

[3] [1996] VicRp 26; [1996] 1 VR 398