R v Smith [2008] VSC 87

2 On Wednesday 21 November 2007, I was told by counsel that you wished to plead guilty to the crime of defensive homicide and that the Crown would accept that plea. You were re-arraigned before the jury and pleaded not guilty to murder but guilty to defensive homicide. At my direction the jury returned a verdict of not guilty of murder, guilty of defensive homicide.

3 The maximum penalty for the crime of defensive homicide is 20 years' imprisonment.

4 The crime of defensive homicide is a new offence, introduced by the Crimes (Homicide) Act 2005. The offence is committed where a person carries out conduct that would otherwise be murder, believing that conduct to be necessary to defend himself or another from the infliction of death or really serious injury but in circumstances where the person did not have reasonable grounds for that belief.

5 Before me both counsel submitted there was no basis for a finding that defence of another was raised by the material here, and I accept that. Accordingly, I sentence you on the basis that it was your acts that were a substantial cause of the deceased's death; that those acts were conscious, voluntary and deliberate; that those acts were performed with the intention of either killing the deceased or causing him really serious physical injury; that you performed those acts believing they were necessary to defend yourself from the infliction of death or really serious injury; but that you did not have reasonable grounds for that belief.

6 I turn then to the circumstances which led to the fatal confrontation.

7 On the night of 25 May 2006 the deceased, Arthur Karatasios, and two friends, James Percy and Zakhar Grojsman, went to the MCG to see a soccer match between Australia and Greece. Mr Grojsman had been a friend of the deceased for some four or five years. Mr Percy had only known him for about a month. They could not gain admission to the MCG and so they went to Federation Square to watch the match. After watching the match they went to Lygon Street and then took a taxi to St Kilda. They went to Gatwick House on Fitzroy Street. The deceased knew a person residing at Gatwick House named Lutasi Scanlan, referred to as "Tasi". The deceased and his two companions went to Mr Scanlan's room. There were a number of people in Mr Scanlan's room including you. You had been drinking that day, and taking drugs, and you were intoxicated. Mr Percy and the deceased had also been drinking. In evidence given in your trial before the adjournment and the plea of guilty to defensive homicide, Mr Percy said he and the deceased had each had a "long neck" bottle of beer and that the two of them had shared a small bottle or hip flask of vodka.

8 An argument of some kind developed and the deceased and his two friends left the premises. In his evidence in the trial, Mr Percy said that he left because he did not feel comfortable. The deceased and his two friends crossed Fitzroy Street and went to a 7 Eleven on the other side of the road. The deceased then made a tragic decision. He decided to return to Gatwick House. On the material before me the reason the deceased decided to return to Gatwick House was, to use an expression used by your counsel in the trial with which Mr Percy agreed, because he was "looking for trouble". In Mr Grojsman's deposition he said that the deceased wanted to go back to "sort out what had happened". Mr Grojsman agreed in his evidence at the committal that the deceased went back to have another confrontation.

9 The deceased's behaviour upon his return to Gatwick House was aggressive. The manager of Gatwick House, Mr Taela Taylor, also gave evidence in your trial before your plea of guilty to defensive homicide. He said that the deceased was saying things such as "You guys want to shiv me, bring it on". At the committal Mr Taylor agreed the deceased was acting in a very aggressive manner. Mr Shane Dennis, the part-time night shift manager of Gatwick House, said in his deposition that the deceased was yelling out "Who wants a piece of me".

10 According to the evidence of Mr Percy and Mr Taylor, the fight that resulted in Mr Karatasios' death occurred outside Mr Scanlan's room and in the foyer of Gatwick House.

11 The descriptions of the fight itself that were given in evidence do not enable me to be satisfied as to exactly how the fatal wounds were inflicted.

12 Mr Percy did not see the start of the fight. He said he was some distance behind Mr Karatosios when he returned to Gatwick House. As to what he then saw, he said:

"As I made my way to Teza's room I stopped as the Aboriginal gentleman [a reference to you] and Arthur were wrestling their way back out of the room. That was in the main foyer of The Gatwick."

He said that when he first saw you and the deceased wrestling it was in the doorway of Mr Scanlan's room, and that the two of you, still wrestling, then moved out to the foyer. He described both you and the deceased throwing punches and said that the two of you ended up fighting on the floor. He said he saw you making a stabbing motion while kneeling on top of the deceased on the floor.

13 Mr Taylor's account was different to Mr Percy's account. Mr Taylor said three men including you came out of Mr Scanlan's room and ran at Mr Karatosios. He described you as performing stabbing motions at that stage. He then described a "mass of people" rolling around on the floor.

14 The deceased received five stab wounds. The fatal wound entered the front left side of his chest to a depth of approximately 155 millimetres. The four other stab wounds were to the back of the left side of his chest, the back of his right forearm, the back of his right shoulder, and the front of his left shoulder.

15 You received three minor stab wounds to your legs.

16 After stabbing the deceased and being stabbed yourself, you ran out into the street. The deceased, who had been on the floor, got up, picked up a knife, put the knife in his back pocket, and chased after you. He collapsed in the street outside. The knife that was found in his pocket was bloodstained. On analysis it was found to contain a mixture of DNA, which matched you and the deceased and a third unknown individual. A second knife was found by Mr Taylor in the area where the fight had occurred. It was taken by him into the manager's office. It also had blood on it. DNA analysis of that knife was inconclusive.

17 On your plea your counsel submitted that I should find on the balance of probabilities that the deceased also used a knife in the fight and that the deceased inflicted the stab wounds which you suffered on your legs. He said I should reach this conclusion on the basis of the aggressive attitude displayed by the deceased; the confidence the deceased displayed and the statements he made effectively inviting an attack; the fact that two knives were found; the knife wounds you suffered; the fact that the deceased was the only one fighting against you; the deceased's conduct in picking up one of the knives, putting it in his pocket, and then chasing after you; and the fact that it was that knife where analysis revealed the presence of both your own and the deceased's DNA. The Crown's analysis of these circumstances was similar to that put on your behalf by your counsel.

18 In all the circumstances I do find on the balance of probabilities that the deceased used a knife against you in the fight and inflicted the stab wounds you suffered.

19 In relation to your personal circumstances your counsel relied upon a psychological evaluation by Dr Simon Kennedy, the results of which were set out in a report dated 15 February 2008 which was tendered on your plea.

20 You are now 34 years of age. You grew up in Morwell and spent much of your life there until 1999, although at various times you lived elsewhere with relatives including in Darwin and in Alice Springs. Your mother is Aboriginal. She now lives in Darwin and is aged 67 years. She suffers from type 2 diabetes and has chronic renal failure requiring dialysis three times a week. She also suffers from coronary artery disease. Your father is of Scottish descent. He left your mother when you were approximately 4 years of age and you have had very little contact with him. You have two brothers who are both aged in their late 40s. Your mother does not drink, but you and one of your brothers have had significant problems as a result of alcohol and drug abuse.

21 You left school after completing Year 9. As a young man you were a talented Australian Rules footballer. You began getting into significant trouble in your teenage years.

22 You are the father of three children, each with different mothers. They are now aged approximately 14, 9, and 8 years.

23 Dr Kennedy says that you have had significant problems with alcohol and drugs over many years. During the three years prior to your fatal confrontation with the deceased you were in transitional housing connected to the Aboriginal treatment service, Galliamble.

24 Dr Kennedy says you have an unremarkable psychological history but that you have significant problems with substance abuse. He indicates that the incident in question appears to have been significantly related to your level of intoxication at the time. In that respect he says that you told him you had been drinking alcohol, smoking cannabis, using heroin, that you had also taken several benzodiazepines (Xanax), and that you described yourself as "pretty intoxicated", which Dr Kennedy observes probably represents an understatement. Dr Kennedy says that it is likely that your level of intoxication played an important role in your actions.

25 Dr Kennedy says that you presented as "quite a well socialised man" and that you were able to articulate reasons for your regret and remorse in relation to the incident in question. He concludes as follows:

"He does not present as a person with anti-social personality traits, but rather, long standing substance abuse/dependency and impulsivity issues, and a chaotic lifestyle associated with these problems."

26 The prior convictions admitted or proved against you concern nine court appearances. Your counsel was unable to tell me much about most of them as he said you were unable to recall the circumstances.

27 You have prior convictions for violence including offences of causing injury recklessly, resisting police and assaulting police, unlawful assault, and assault with a weapon.

28 On seven occasions you have been dealt with by way of a bond, community based order, suspended sentence, or other similar non-custodial dispositions. You have been given many chances. The leniency which has been extended to you on a number of occasions does not appear to have been effective in altering your behaviour, although, as your counsel pointed out, you have never been dealt with for breach of any non-custodial disposition.

29 Prior to this incident you had been to jail on one occasion, a two month sentence of imprisonment imposed on 5 August 1997 at the Moe Magistrates' Court on a charge of causing injury intentionally or recklessly. That was one of the matters which your counsel told me you could not recall. Shortly prior to that appearance, on 12 May 1997, you appeared at the Moe Magistrates' Court and were convicted of charges of assault with a weapon and unlawful assault, as well as other less serious offences. On that occasion you were sentenced to 2 months' imprisonment suspended for a period of 12 months. You did not admit those convictions and I was told that you have no recollection of either the offences or the appearance. The Crown proved those matters by tendering certified extracts from the register of the Magistrates' Court of Victoria at Moe.

30 In addition to Dr Kennedy's report, on your plea a report was tendered from your mother's treating general practitioner. That report refers to her medical conditions and says she is confined to her house with limited mobility. Letters were also tendered from one of your brothers, from a close friend of your family, and from a friend who grew up with you in Morwell. I have read those letters and taken their contents into account.

31 The deceased, Arthur Karatasios, was born in 1971 and was 34 years old at the time of his death. He had a son, who is now 8 years of age. He was 6 years old at the time Mr Karatasios was killed. Mr Karatasios's brother has prepared a victim impact statement that was tendered on the plea. He describes their childhood together and he describes the effect that his brother's death has had on him. He says his life is never going to be the same again. He refers particularly to the impact that his brother's death has had on his brother's son. He says that his brother's son was old enough to understand and comprehend the way in which his father was senselessly killed and he observes that the young boy has been selfishly deprived of a father/son relationship which he deserves.

32 On your plea your counsel suggested that, as you acted with a subjective belief that what you did was necessary for your own defence, this offence was less serious than manslaughter by an unlawful and dangerous act, where a deliberate decision is made to engage in an unlawful and dangerous act. As I indicated previously, he made a submission, which I have accepted, that the deceased also used a knife that night in the fight. He referred to the fact that after initially leaving the scene you had instigated contact with the police on 27 May 2006, and to the fact that you had pleaded guilty. He relied on the report by Dr Kennedy, the medical report in relation to your mother, and the letters to which I have referred. He submitted that an appropriate disposition would be a sentence which gave you a realistic possibility of visiting your mother again in Darwin before she dies. He said that in custody you have undertaken courses and worked as a yard billet and in the laundry. He said you were anxious to undertake a drug and alcohol program but could not do so until you approached the end of your sentence.

33 Counsel for the Crown submitted that it could not be said that the offence of defensive homicide was necessarily less serious than manslaughter by unlawful and dangerous act, as where defensive homicide occurred there was an intention to kill or cause really serious injury, which was not the case where the offence of manslaughter by unlawful and dangerous act occurred. In my view the prosecutor's submission on this issue is correct. The circumstances in which each of the two offences may be committed are so varied that it cannot be said that one is necessarily more serious than the other. When Parliament introduced the offence of defensive homicide it determined to fix the same maximum penalty (20 years) as is fixed for manslaughter.

34 At one time in this State the law of self defence was such that on a charge of murder the jury might have found the accused guilty of manslaughter in circumstances which were referred to as "excessive self defence".[1] In New South Wales, s 421 of the Crimes Act 1900 (NSW) provides for a verdict of manslaughter where there is "excessive self defence". The Crimes (Homicide) Act 2005 was itself introduced in response to a Victorian Law Reform Commission Report which had recommended a provision very similar to the New South Wales provision. The provision that was enacted in Victoria differs from the provision recommended by the Law Reform Commission and from s 421 of the New South Wales Act. But while the circumstances in which the Victorian offence of defensive homicide will be committed are not the same as the circumstances in which a person might have once been found guilty of manslaughter in this State because of "excessive self defence" or might now be found guilty of manslaughter under s 421 of the Crimes Act 1900 (NSW) in New South Wales, the respective circumstances do overlap. On the hearing before me both your counsel and counsel for the Crown agreed that this was, to use the prosecutor's words, a case where the accused "acted excessively or disproportionately in the circumstances notwithstanding that he believed it was necessary to act as he did".

35 Counsel for the Crown referred me to two recent decisions of the Court of Appeal concerning offences of manslaughter in circumstances where there had been a stabbing,[2] to a recent decision of this Court concerning a manslaughter in circumstances said to have some similarity to this but not involving the use of a knife,[3] and to a decision in New South Wales concerning manslaughter under s 421 of the Crimes Act 1900 (NSW).[4] In my view it is appropriate to have regard to the authorities relied upon by the Crown and I have done so. I have also considered the judgments of the New South Wales Court of Criminal Appeal in R v Trevenna,[5] the published statistics on manslaughter sentences in Victoria,[6] and recent Court of Appeal judgments concerning manslaughter sentences in addition to those relied upon by the Crown. I have had regard to the Court of Appeal decision in R v AB (No.2)[7] which was delivered after the plea in this matter.[8] In considering this material I was mindful of the caution which is necessary when considering manslaughter sentence statistics given the very broad range of circumstances encompassed, and given the Court of Appeal's very recent analysis of the previous pattern of sentencing for manslaughter in R v AB (No.2). I was also mindful of the fact that this offence is a different offence, and of the fact that the maximum sentence for manslaughter in New South Wales is 25 years imprisonment.

36 I accept, as I must, that you subjectively believed that it was necessary to do what you did, even though you did not have reasonable grounds for that belief. Your culpability must be assessed in that context. Subject to what I have already said, I accept that all of the matters put on your behalf by your counsel are properly to be taken into account.

37 On the other hand, you have been found guilty of violent offences in the past. On this occasion you used a knife in a public area while affected by alcohol and drugs. You intended to kill or cause really serious injury. As a consequence, a person lost his life and that person's family, and in particular his young son, will forever bear the burden of your actions that night.

38 Dr Kennedy's report suggests that you do have genuine remorse and that there are prospects for your rehabilitation. I accept that.

39 Specific deterrence is important here. You have prior convictions for violence. Your alcohol and drug abuse has now placed you in a position where you have committed an offence which has resulted in the loss of a life.

40 General deterrence is particularly important. In a public area, whilst under the influence of drugs and alcohol, you have used a knife in a fight, and a person has died as a result. You acted in the subjective belief that it was necessary to do what you did, but you did not have reasonable grounds for that belief.

41 For the crime of defensive homicide, I sentence you to seven years' imprisonment and I fix a non-parole period of five years and six months. Pursuant to s 18(4) of the Sentencing Act I declare that the period to be reckoned as already served and to be noted in the records of the Court is the period of 675 days.

[1] See Viro v R [1978] HCA 9; (1978) 141 CLR 88 and Zecevic v R [1987] HCA 26; (1987) 162 CLR 645

[2] R v Moore [2002] VSCA 33 and R v Deniz [2003] VSCA 23

[3] R v Holden [2007] VSC 417

[4] R v Boyd [2004] NSWSC 263

[5] [2004] NSWCCA 43

[6] R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 149, & 153

[7] [2008] VSCA 39

[8] Brief written submissions regarding the judgment in R v AB (No.2) were received from the parties. Counsel for Mr Smith submitted that the judgment in R v AB (No.2) has no effect on the matters raised in the plea made on behalf of Mr Smith. Counsel for the prosecution noted that there is no sentencing practice to use as a guide for defensive homicide, and submitted it should be borne in mind that the legislature has reflected the seriousness with which it regards defensive homicide by providing a maximum penalty of 20 years, the same penalty that is applied for manslaughter. Counsel for the prosecution also submitted that the Crown does not submit that Mr Smith's offending, although most serious, is 'of the gravest kind' as was the characterisation of the offending in R v AB (No.2).