R v Tipas [2004] VSC 25

5. Mr Clelland, now of Senior Counsel, presented part of a plea on your behalf on 21 July and made an application that the rest of the plea be adjourned to enable an unavailable witness, your aunt, to give evidence. Having regard to what appeared to be the importance of that evidence and, having regard to evidence given on 21 July by one Ann Louise Hooker, the youth development officer at Port Phillip Prison, I acceded to Mr Clelland's application and took the opportunity to order appropriate pre-sentence reports. Ms Hooker's evidence was to the effect that as a remand prisoner you were being detained in a particular youth unit at Port Phillip Prison which gave you access to rehabilitation services which would be unavailable to you once you were sentenced. Ms Hooker considered that your progress in that unit had been such that you would benefit by being able to remain in it for as long as possible. In the event the plea was adjourned and was not re-fixed until 11 December last year when the Court heard evidence from your aunt, Ms Rebecca Nardella, and from you yourself. It also heard, informally, from Mrs Sultana, the victim's mother.

8. The circumstances in which this offence came to be committed are not entirely clear. It is said that a week or two before the night of the offence you and another boy had been assaulted in the course of a conflict which arose between the other boy and Bryan Sultana over a girl. In that assault you received stab wounds to your right arm and chest and a slashing injury to your ear. You were hospitalised for some days for these injuries which were described by your treating doctor as the result of a serious and violent assault. It was believed by some of your friends and probably by you that this assault had been perpetrated by Sultana, although you did not see your attacker at the time. It appears that it was upon your release from hospital that you began carrying a knife. In cross-examination you gave evidence that you had the knife with you on the night in question out of a fear that unarmed you would sustain further, more serious injuries than those you were already carrying should you become involved in a fight or be attacked.

11. On the night Sultana died, he was induced to go to Selwyn Park sports ground, near the place at which you stabbed him, by a number of young men, for some purpose arising out of the previous altercation. At or near the park he was set upon by an unknown number of young men, assaulted by some of them and, some time later, stabbed by you as a result of which he died. Three other young men were charged with less serious assault offences and dealt with in the Magistrates' Court. It was not suggested by the Crown that any of them were complicit in the ultimate offence committed by you although each of them had apparently assaulted the deceased in the period shortly before you did.

14. The Crown accepted a plea of guilty on your part to the offence of manslaughter on the basis that you did not have the necessary murderous intent when you stabbed Sultana to make your crime one of murder. You gave evidence that on the night of the stabbing you had attended a hospital to have sutures removed, that you had ingested painkillers which had been prescribed to you, as well as illicit amphetamine. While you do not deny that, at the time you stabbed him, you intended to harm Sultana, you said that you were not yourself and did not have a clear head.

17. By pleading guilty you have accepted that you committed an unlawful and dangerous act which resulted in the death of another person and that you are thus guilty of the very serious crime of manslaughter, which carries a maximum penalty of 20 years imprisonment.

20. You were born on 14 August 1984 so you are now 19 years of age. When the offence was committed you were 17.

23. Your aunt Rebecca Nardella gave evidence before the Court as to your early life and upbringing. Her evidence was not contested by the Crown so that the Court can comfortably rely upon it as an accurate, if necessarily brief, history of your personal circumstances.

26. When you were born your mother was 18. She spent the first three months of her pregnancy in a youth training centre. It appears that your father was not present during your mother's pregnancy and although you have had some intermittent phone contact with him over the years you have never actually met him.

29. When you were four years of age you were present at your grandparent's home when your mother made an unsuccessful attempt at suicide by shooting herself in the stomach with a shotgun. You were an immediate witness to the consequences of this incident.

32. On another occasion your mother overdosed on heroin and on yet another on Serepax. She was addicted to drugs of various kinds and probably still is. Your aunt described her introducing you to drugs at a young age.

35. Your aunt described your childhood and your adolescence as one in which you were traumatised time after time by decisions made by your mother as to the way in which she lived. Your relationship with her was dysfunctional, manipulative and destructive. Nevertheless, to your aunt's observation, you have never abandoned your mother and you still express positive feelings towards her. It is not without significance that she was not in Court on 21 July when you pleaded guilty to this offence. When the plea was resumed on 11 December she was in fact in gaol for various drug offences. Her life is still chaotic and she does not appear able to turn it around. Perhaps she never will be.

38. The purpose of setting out these aspects of your early life and upbringing is not to seek to excuse what you have done or to lay the blame for it elsewhere. It is simply to make clear the basis upon which the Court must approach the sentencing process in your case. The most important aim of sentencing in the case of someone of your age is their rehabilitation. Rehabilitation not only benefits you but also benefits the community in obvious ways. However, rehabilitation cannot be approached in a vacuum. If a sentence is to have a rehabilitative aspect then it must be imposed against the history of the offender and an assessment of his capacity to reform. It is for this reason that your aunt's unchallenged evidence was important in this case.

41. The positive influences in your life to date have been your grandparents, your aunt and your relationship with your younger half-brother, Jonny, who is about eight years younger than you. Your aunt describes your relationship with him as close and protective. Your counsel tendered letters you have written to your grandparents from your remand cell which, on their face at least, suggest a positive attitude towards them, remorse for what you have done and a resolve to mend your ways.

44. Not surprisingly, your education has been less than satisfactory. It ended in Year 11 and your history at school was not without incident. You have had minor brushes with the law. It would have been very surprising if you had not. However, since being on remand you have come under the influence of Ms Hooker, to whom I have already referred, and appear to have exhibited a wish to reform and in some way try to atone for the wrong you have committed.

47. Ms Hooker described your progress at Port Phillip in very positive terms. She described your educational achievements and the effort which she observed you putting into them. Of particular significance was her evidence that she noticed that there were great changes in you from the time she first saw you at Port Phillip up until the time she gave her evidence. She was impressed by your attitude to work and your apparent determination to stay out of trouble. She described the amount of written work you were producing in your VCE studies as prodigious. The reports on those studies which you have received from your teachers and which are before the Court confirm Ms Hooker's evidence.

50. Unless there have been changes in the prison classification system since Ms Hooker gave evidence last July, which would seem unlikely, you will no longer be able to remain in the youth unit at Port Phillip after you are sentenced. This is most unfortunate. It is to be hoped that in whatever prison you serve your sentence you will have at least some of the opportunities which Ms Hooker described. There is little hope for the prison system as a rehabilitative force for good if prisoners such as you are deprived of the opportunities for self advancement and education such as those you have available at present. There is probably no greater indicator of potential for rehabilitation than a positive attitude towards education.

53. Although in the case of an offender of your age your rehabilitation must be a primary consideration, it is not the only consideration to which the Court must have regard in fixing an appropriate sentence. You must also be punished for the crime which you have committed.

56. Bryan Sultana was a young man whose future was taken from him and from his family by a serious criminal act. The crime to which you have pleaded guilty has effects way beyond the taking of Bryan Sultana's life. You have left his mother, a widow with no other children, bereft and desolate. Her victim impact statement, which is before the Court, attests in vivid terms to her grief, to the loss she is experiencing and will experience for the rest of her life and to the tragedy of a life cut short which had shown such potential. Her grief is exacerbated, as appeared from the statement she made to the Court on 11 December last, by the fact that she cannot, in the nature of things, understand why or even exactly how her son died.

59. Bryan Sultana was a young trainee electrician who cared for his mother in her widowhood in a way characteristic of his Maltese-Australian background. His was a life much cherished by his mother and his family. The sanctity of that life and human life generally, whether of victims loved or unloved by others, must be vindicated by the sentence this Court imposes.

62. On 10 September 2003 you were assessed by a Juvenile Justice Court Advice Officer, Vonda Coyne, to determine your suitability for detention in a youth training centre instead of an adult prison for the crime to which you have pleaded guilty. Following that assessment Ms Coyne considered that you fitted some of the criteria stipulated in s.32 of the Sentencing Act 1991 as being necessary before a youth training order could be made. However, she noted that you very clearly wanted to complete your term of incarceration in the adult prison system. She said that you wished to have a form of consistency and predicability for your custodial term and that, when she spoke to you, you appeared to have established a pattern in which you felt secure. You were said to be firm in your belief that you have the ability to cope and maintain yourself and not be vulnerable in the adult prison setting. Taking your views into account and also the fact that at the time she saw you, you had been on remand for some 15 months Ms Coyne reported to this Court that the Department of Human Services did not consider you a suitable candidate for a youth training order. In light of that report I need not consider further a youth training centre order in your case. In any event, having regard to the seriousness of your offending, I have come to the conclusion that the maximum period for which a youth training order could run would constitute insufficient punishment for the crime of which you are to be convicted.

65. As well as Ms Coyne's report the Court also has before it a report of Ms Jennifer Egan, a Community Corrections Officer dated 28 August 2003. After setting out your history in some detail Ms Egan reported that you have been identified as a low risk offender, that you have expressed remorse for the offence which you committed and that you have undertaken extensive and intensive rehabilitation programmes since you have been on remand. Overall her report is probably about as positive as one could expect having regard to the serious nature of your offence, your background and the facilities available to you at Port Phillip Prison. The Court also notes the numerous certificates you have been awarded for courses undertaken whilst on remand. The Court has taken Ms Egan's pre-sentence report and those other matters, which attest strongly to the commencement of an effective rehabilitation process on your part, into account in fixing your sentence.

68. As well as the matters of your youth and your prospects of rehabilitation to which I have already referred the Court must also take into account in fixing an appropriate sentence principles of deterrence and of denunciation by the community of an offence such as this which involved the taking of a human life. Violence by young men, especially violence involving the use of weapons, must be deterred by the imposition of gaol sentences commensurate with the seriousness of the offence under consideration. It must also take into account the protection of the community. In your case the Court is satisfied that if you achieve effective rehabilitation that will provide the community with the best protection possible. As it is satisfied that, as things stand, your rehabilitation is extremely likely there will be no need to consider community protection further in your case.

71. You are entitled to have taken into account the remorse you have shown and the fact that you have pleaded guilty thus saving the community and the family of the deceased boy the trauma, inconvenience and expense of a trial.

74. Your counsel referred the Court to a number of other recent cases of manslaughter and, in particular a recent case in which the Court of Appeal dealt with a young man who stabbed another in circumstances which your counsel submitted were similar to this case[1]. He argued that your sentence should be the same as his. I have considered that case carefully and have come to the conclusion that it would not be appropriate merely to adopt the sentence in that case. I have so concluded essentially, but not entirely, because the offender in that case was significantly younger than you at the time you committed your respective offences and you had armed yourself with a knife at a somewhat earlier stage of the offence than he did.

77. It is necessary, in fixing a sentence of imprisonment in a case such as yours to fix both a maximum and a minimum term. By law you will have to serve every day of the minimum term, at the end of which you will be eligible to be released under supervision by the Parole Board for the balance of your maximum term. In your case, having regard to your background, it is appropriate that a longer possible period of supervision than would normally be available be fixed to enable you to serve half your maximum term in the community if the Parole Board determines it is appropriate for you to do so.

80. Taking all of these matters into account it is the sentence of the Court that you be imprisoned for a period of six years. It is further ordered that you serve a minimum of three years before being eligible for parole. I declare that up to today you have served 625 days of pre-sentence detention in respect of this offence and I direct that this declaration and its effect be entered in the records of the Court.

[1] R v PP [2003] VSCA 100