R v Tovey [2023] VSC 530

1 Early on the morning of 18 January 2021, in the course of an altercation out the front of their mother's home, Jesse Tovey used a knife to stab his older brother Joshua Tovey to the chest, the root of his neck, and the back of each shoulder. His brother fled to a nearby carpark, where he collapsed. Sadly, as a result of the damage done by the stab wound to his chest, he later died as he was about to be airlifted to hospital. He was only 29.

2 Immediately after the stabbing, Jesse Tovey was driven away from the scene by another. At that time, he did not realise how badly his brother had been hurt. As he told a friend soon afterwards, he thought he would be "pretty sore" but "alright". However, when he heard that his brother had died, he discarded the knife and hid.

3 A little later, Mr Tovey was found by police, who arrested him. He was charged with murder, and has remained in custody ever since. In February this year, he offered to plead guilty to manslaughter instead, which the Director of Public Prosecutions accepted. Subsequently, he duly pleaded guilty to that charge.

4 On 7 August, I heard a prosecution opening and a plea in mitigation. It is now my task to impose sentence. This requires the synthesising of numerous considerations.

5 While the Book of Genesis tells us that Cain murdered Abel eons ago, and history shows that a sibling or two had another killed in the Middle Ages when a throne was at stake, fratricide, it seems, is pretty rare among the less entitled and particularly so in modern times. But even when the crime is manslaughter, not murder, it presents an impossible situation for the rest of the family. For they have lost the cherished life of one of their kin in a violent manner, but at the hands of an equally loved relative whose life must be blighted for all time. Naturally, there will be an exquisite conflicting agony for those close to both siblings.

6 And so it must be in this case. It can reasonably be inferred that the deepest of feelings are pulling loved ones every which way. I say inferred, because, understandably, neither the brothers' parents nor any other member of their family filed a victim impact statement.

7 In some respects, it is difficult to assess the gravity of this instance of manslaughter. This is because of the paucity of evidence as to aspects of what happened between the brothers during their confrontation and because of the way in which the parties agreed to conduct this case. Thirteen days before the stabbing, Mr Tovey's brother had bashed him to the head with a mallet over some piddling dispute about monies owed. The same day, the two exchanged threatening text messages. On some of the material before the Court, there is more than a hint of self‑defence, or at least excessive self‑defence, in Mr Tovey's conduct on the charged occasion. However, by agreement between counsel, no submission was put in his favour to this effect. Equally, while Mr Tovey bolted out of his mother's house to confront his brother, it cannot be said that he brought the knife to the struggle that ensued immediately thereafter. It is also plain that he was drug‑affected at the time. The net result is that there is a vacuum of sorts as to the precise events involved in the fatal stabbing. Nevertheless, enough is known to classify the offence as violent and serious.

8 That said, whatever passed between them in those crucial moments, Jesse Tovey is distraught at his brother's death. Further, on his own admission, he is criminally responsible for that terrible outcome. In the eyes of some, and in his own mind, he may well have to bear the mark of Cain for life. That, in itself, is a form of punishment. I accept that his plea of guilty, particularly given its entry in the face of a viable argument for self‑defence, together with other evidence, shows that he is genuinely remorseful for what he has done.

9 Mr Tovey has a criminal history for a range of offences, including for breaching family violence intervention orders ("FVIOs"), but not for anything approaching the gravity of this offence. He was exposed to appalling family violence and neglect from an early age, which lessens his moral culpability for the present offending. This, along with the sexual abuse he suffered in childhood at the hands of a family friend, led to his difficulties with drug addiction from his teenage years, and to severe PTSD. Because of this, his time in custody has been, and will continue to be, more onerous than usual, and imprisonment is likely to worsen his mental condition.

10 Mr Tovey's prospects of rehabilitation in the long run are likely to depend largely upon his remaining drug‑free, his exposure to treatment for PTSD, and to any support he might enjoy upon his ultimate release. Despite his prior convictions and his battles with illicit drug use and fragile mental health, other matters, including his plea of guilty and remorse, and the support he has from others (including one of his brothers), move me to conclude that, on balance, those prospects are good.

11 Another consideration is that Mr Tovey has lost 100 days of pre‑sentence detention otherwise attributable to the sentence to be imposed for manslaughter because of his service of sentences for other offences while on remand. Given that those sentences would have been directed to be served either wholly or mostly concurrently with the manslaughter sentence had they been imposed subsequently, I must take this fact into account, in a broad way, as a matter of totality.

12 Bearing in mind these and other matters, including the applicable sentencing purposes and current sentencing practices, I have determined that, for the manslaughter of his brother, Mr Tovey will be sentenced to eight years and three months' imprisonment with a non‑parole period of five years.

13 My more detailed reasons for this sentence follow.

Summary of offence and surrounding circumstances

14 Joshua Tovey was born in 1991. He was known by the nickname "Conan" by his family and friends. He was the eldest of six brothers. In January 2021, he had been staying from time‑to‑time with his mother Deanne Tovey at her home at Arthur Street in Hastings.

15 Jesse Tovey was born to the same parents in 1994. At the time of his brother's death, he was 26 years old. He did not have a fixed address and was "couch surfing" with friends in the Hastings area. He is now 29.

16 Between June and September 2020, Jesse Tovey was held at Ravenhall Correctional Centre on criminal charges. During this time, his brother Joshua deposited around $950 into his prison account. Mr Tovey was to repay his brother once he was released from custody.

17 By the start of January 2021, his brother was chasing up the outstanding debt. On 2 January, the pair exchanged several text messages in which his brother said he was still owed $600. Mr Tovey told him that he did not believe he owed any money.

18 On 5 January at 8:50 a.m., his brother sent a text to Mr Tovey, threatening that he was going to find him and "stomp" him. Sometime later that morning, his brother made good on his threat, and perhaps more, when he assaulted Mr Tovey with a mallet, which caused an injury to his face. Afterwards, at 11:02 a.m., his brother sent this dire warning by text:[1]

Now you know I aint playin, know this, That's gonna keep happening everytime i see you cunt until iv got what you OWE me back ... Understood?

... playing dog shots n concrete mallets to me ha just wait till I see u ya weak junkie fucking generate parasite, need a weapon to even come close to me weakest mutt haha dog U aint getting shit from U thieving junkie scumbag mutt if anything U owe me junkie dog, only point U got across is that U need a weapon to play n there back turned, hope makes U feel like a man coz won't be for long once I've had my turn maggot junkie rat

20 At 11:18 a.m., Mr Tovey's brother sent another text message, in which he continued to up the ante: "$600 JESSE!! Or i swear to you, your gonna keep bleedong cunt."

... rent, gear, bg bud, clothes, food, bills, etc fuck think U owe heaps cunts, DW I'll collect either with money or blood dog n I prefer the latter haha U fucked up something shocking maggot, this will be a very fun game indeed

22 In the last message Mr Tovey's brother sent that day, he said: "Comin round or what .. or you to scared ya flog".

23 In a subsequent conversation with his mother, Mr Tovey told her about the incident with his brother on 5 January and complained that he had "sneakod" him. He told her that his brother was "a fucking dog" and that she had "better stay away because he was coming to get [him]". Mrs Tovey said that nothing was to happen between the two of them on her property.

24 On another occasion, Mr Tovey told Naomi Mace (with whom he was in an "on‑again/off‑again" relationship) that his brother had "dog shotted" him with a sledgehammer.

25 During the weekend of 17 and 18 January 2021, Mr Tovey had been staying with Andrew Cresswell at Kurrajong Street in Hastings. Mr Cresswell was living in a garden shed in the back yard of the house at that address. The shed had been converted into a makeshift bedroom. Mr Cresswell's sister, Jessica Cresswell, was living in the house. Over the course of the weekend, Mr Tovey took "ice" (i.e., methamphetamine) with Mr Cresswell.

26 On the Saturday that weekend, Joshua Tovey arrived at his mother's house at around 10:00 p.m. He eventually fell asleep on the couch in the living room. His mother also went to bed soon afterwards.

27 In the early hours of the Sunday, Jake Andrew was driving with his friend Matthew McDonald along Spring Street, Hastings. They noticed Jesse Tovey and Liam Carroll walking along the street. Mr Andrew pulled over and told Mr Tovey they were on their way to his mother's house, which was nearby.

28 Between about 5:50 a.m. and 6:38 a.m., Mrs Tovey was woken up by the sound of tapping on her bedroom window. She saw that Mr McDonald and Mr Andrew had come to her house. Shortly afterwards, she saw her son Jesse walking up her driveway. He was wanting to come inside, but Mrs Tovey told Mr McDonald and Mr Andrew not to let him do so.

29 Mr Tovey went to the back yard of the house. Mr McDonald and Mr Andrew followed him there. Mrs Tovey continued to instruct the others that her son had to go and that she did not want him at her house.

30 While in the back yard, Mr Andrew asked Mr Tovey about an injury he noticed on his face. He responded along these lines: "That dog in there got me with a pole two nights ago in the dark and then ran off". Mrs Tovey heard her son utter words to this effect: "Just give me the mallet and I'll hit him while he's sleeping".

31 Mr McDonald went inside the house and woke up Joshua Tovey. He told him he had to make peace with his brother. Instead, Joshua eventually left the house through the front door. He walked to a nearby service station and bought a can of soft drink. He left the shop at 6:43 a.m. and headed back to his mother's house.

32 Meanwhile, Jesse Tovey went inside the house and into his mother's bedroom. He realised that his brother was not there.

33 Shortly afterwards, he saw that his brother had returned. He then bolted out the front door. Mrs Tovey yelled out to Mr McDonald, "Don't let him get him." She looked out her window into the front yard and saw that her son Joshua was on the steps of her veranda, next to the driveway. She saw that he had lost his footing, and that Jesse was "right near" him. She heard Jesse yelling at his brother, "You're not so tough when you can't sneako someone."

34 The prosecution case is that, at this time, Mr Tovey used a knife to stab his brother to his chest, to the root of his neck, and to each shoulder.

35 Joshua Tovey then fled. He ended up walking along a laneway behind the Centrelink offices. Ultimately, he collapsed in the carpark of an Ultra Tune Auto Service Centre. He called out for help. He told some employees from the nearby Aldi supermarket that he had been stabbed, and he took off his shirt. The employees could see that he had a deep wound to the centre of his chest, and other wounds. They administered first aid. One of them called triple‑zero at around 6:52 a.m. and reported the stabbing.

36 At 7:02 a.m., paramedics arrived. They found Joshua Tovey was distressed, complaining of severe pain, and having difficulty breathing. He said that he had been stabbed with a knife. The paramedics saw that he had a large central chest wound, and three other smaller wounds. His condition deteriorated quickly, and he soon went into cardiac arrest. The paramedics revived him and placed him in an ambulance to be transported to the Marina Helipad so that he could be airlifted to a hospital. However, he went into cardiac arrest again. This time, he was unable to be revived. Sadly, he died there and then. He was pronounced dead at 8:05 a.m.

37 Meanwhile, after the stabbing, Jesse Tovey was driven by Mr Andrew to Kurrajong Street and was dropped off at around 6:51 a.m. Local residents Sarah White and Peter Rayson noticed them arrive. Mr Rayson thought that the pair in the car sounded "irrational" and "erratic", and that they appeared "drug affected". Mr Tovey got out of the car and walked through the side gate to the back yard of the Cresswells' premises. He entered the shed at the rear of the block. Mr Cresswell, who was inside the shed with Jacob Charleston, saw that Mr Tovey had removed a black handled folding knife from his satchel.

38 At 7:30 a.m., Jessica Cresswell heard Mr Tovey knocking on the back door of the house. She had become aware of a stabbing in the Hastings area, and showed him a Facebook post about it. She asked if he had seen the incident. He said words to this effect: "Nah. I don't know nothing". However, she noticed that his hand was shaking. He then told her that he had got into a fight with his brother. He said that he would be "pretty sore" but would be "alright." He then lifted his shirt and showed a knife to her, which was attached to a belt loop of his jeans.

39 Next, Mr Tovey had a shower. He asked Mr Cresswell for some clothes, including a pair of shorts, which he changed into afterwards. He then fell asleep in Ms Cresswell's bedroom.

40 Over the course of the morning, the Cresswells became aware that Joshua Tovey had died. On occasions, they tried to wake Mr Tovey, but they were unable to rouse him. Ms Cresswell even slapped his face, but he could not be woken. Eventually, she was able to wake him. She told him that his brother had died. He looked at his phone and told her that he had not murdered his brother. He said that he did not want to be in the house when police were looking for him.

41 In the meantime, Mr Cresswell had gone to the Hastings Police Station to inform police that Mr Tovey was at the Kurrajong Street premises. At around 12:50 p.m., police arrived at that address and entered the back yard of the property. At the same time, Mr Tovey jumped over the back fence and into the back yard of the adjoining house.

42 At 1:20 p.m., Momir Tripkovic, the resident of those premises, saw Mr Tovey hiding in his garden shed, shaking. He said he was homeless. Mr Tripkovic told him to leave. He did as he was told and walked off through a nearby park.

43 About eight minutes later, Mr Tovey returned to the Kurrajong Street premises and entered the yard through the side fence. A police officer who happened to be in the yard asked him his name. He answered, "Jacob Pirie." When asked for his identification, he said he did not have any. After speaking to a resident of the house next door, the police officer realised that the person she was speaking to was Jesse Tovey.

44 He was arrested and searched. Police found, among other things, identification cards in his name. He was no longer wearing the clothing he had worn at the time of the stabbing. A search of the Kurrajong Street premises and its surrounds failed to locate that clothing or the knife he had used.

45 At 3:07 p.m. the same day, forensic pathologist Dr Melanie Archer of the Victorian Institute of Forensic Medicine conducted an autopsy on Joshua Tovey's body. Dr Archer noted the following injuries.

46 First, there was a penetrating stab wound to the right lower chest, which was eight centimetres deep and had injured the right lung and pierced the heart. The right lung had collapsed, which may have resulted in respiratory difficulties. The stab wound also resulted in blood filling inside the chest. This wound was the cause of death.

47 Secondly, there were three further stab wounds: one to the left root of the neck (which was two‑and‑a‑half centimetres deep); one to the right back of his shoulder (which was four‑and‑a‑half centimetres deep); and one to the left back of the shoulder (which was five centimetres deep). These injuries did not contribute to death.

48 Finally, there were also superficial abrasions to the knees and the left index finger.

49 At 7:21 p.m., Mr Tovey took part in a recorded interview with investigators at the Melbourne West Police Station. Police outlined their allegations surrounding the stabbing. When asked whether he wished to tell them anything about what had happened, Mr Tovey responded, "I just want to know why - why me? ... Why am I here right now?"

50 I turn now to the nature and gravity of manslaughter generally, and of this offence in particular, including Mr Tovey's level of culpability.

51 The maximum penalty for the offence is now 25 years' imprisonment.[2]

52 While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and resulting sentences, vary widely.

53 The form of the offence relied on in this case is manslaughter by an unlawful and dangerous act. This means that, by his plea of guilty, Jesse Tovey accepts that, in stabbing his brother to the chest, his conduct was unlawful and dangerous, and that it caused death. The stabbing was unlawful because it amounted to an assault without any justification or excuse. It was dangerous because a reasonable person in Mr Tovey's position would have realised that, in stabbing his brother in that way, he was exposing him to an appreciable risk of serious injury.

54 This offence of manslaughter had some serious features, including the following.

55 First, every such offence has a grave component, by definition, in that the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

56 Secondly, and as I observed earlier, it is reasonable to infer, and I do, that the grief and pain of the loved ones left behind is unfathomable.

57 Thirdly, as I have explained, notwithstanding the evidence pointing to excessive self‑defence, it is not put that any such behaviour explained or mitigated the offence.

58 Fourthly, Mr Tovey used a dangerous implement (a knife) to stab his brother to a vulnerable part of the body (his chest), which is a violent and morally culpable thing to do.

59 Fifthly, while the other three knife wounds did not contribute to his brother's demise, they give the attack an added degree of gravity, and increase Mr Tovey's moral culpability.

60 Finally, I accept that it is a circumstance of aggravation that, once he heard his brother had died, Mr Tovey disposed of the knife and hid.

61 These matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following.

62 First, there was no evidence that Jesse Tovey was carrying a knife when he confronted his brother in the front yard. I should add that, while there was evidence that Jesse Tovey possessed a knife when in the rear yard, he handed it to Mr McDonald before the stabbing, who in turn handed it to Mrs Tovey, who later handed it to police. Further, there was evidence that his brother kept a steak knife near the couch where he slept in his mother's home. Thus, I accept Mr Saunders' concession, and his submission, that it is just not open to say who brought the knife to the confrontation.

63 Secondly, as far as may be gauged, I accept that the stabbing appears to have been spontaneous rather than premeditated.

64 Thirdly, I accept that, while no excessive self‑defence is asserted, the stabbing must have occurred in the course of an altercation between the two brothers. This is to be contrasted with, say, merely walking up to another and stabbing him in the chest. But, as to what events immediately preceded and surrounded the stabbing, I cannot say.

65 Fourthly, however, what can be said is that the offence was committed against a background of Joshua Tovey assaulting and threatening his brother in the previous two weeks, and of Jesse Tovey responding with his own threats. Thus, when this history is coupled with the fact that Jesse Tovey bolted out the front door towards his brother, albeit without a knife, it can be inferred, and I do, that, while there was animosity between them, he was fearful of his brother.

66 Fifthly, while I am satisfied that the nature of the fatal wound and the presence of the other wounds indicate an intention to cause some harm, I am not satisfied that Mr Tovey foresaw the possibility of really serious harm, let alone death, at the time of the fatal stabbing. In this regard, I note the evidence that he told Ms Cresswell that he thought that his brother would be "pretty sore" but "alright". Further, he was heavily affected by drugs at the time of the stabbing. So much is plain from the observations of him minutes after the stabbing, when he was dropped off in Kurrajong Street. It also apparent from the inability of others to raise him from his sleep for some hours thereafter. Thus, I think what must have been a high level of intoxication is likely to have impaired his judgment at the time of the confrontation with his brother.

67 Finally, there was no evidence of any other gratuitous violence, such as punching or kicking or further stabbing while his brother was prostrate, as sometimes happens in homicides.

68 Ms Moran submitted that, overall, this was a serious example of the offence. As I understood it, this submission was taken to be qualified to the extent that I might not accept some of the aggravating factors that Ms Moran urged I should find.

69 Of those matters, first, I am not satisfied beyond reasonable doubt that the offence represented an instance of retribution by Jesse Tovey. Absent more evidence about what actually occurred or was said between the brothers at the critical time, I find myself unable to make such a finding.

70 Secondly, I reject the submission that the offence was not spontaneous but involved planning. As I have said, I accept the contrary. It was only by chance that Jesse Tovey was even at his mother's place, and therefore anywhere near his brother, that morning.

71 Thirdly, I do not accept Ms Moran's submission that, because violence by one brother against another may be classified as "family violence", this offence should be treated in the way that other instances of homicide committed in the context of family violence are treated. It is one thing to characterise as an aggravating feature of a homicide the fact that a man who killed his partner or ex‑partner did so against a background of having perpetrated family violence against her for years, and regarded her as little more than a chattel to boot. It is, I think, entirely another when, as here, a man kills his brother against no equivalent background or dynamic but, rather, in view of a recent history of actual and threatened violence by the brother.

72 Notwithstanding these points, for the reasons given earlier, I still accept Ms Moran's submission that the offence is properly regarded as serious, albeit that that conclusion is qualified in the ways just discussed.

73 Mr Saunders submitted that this offence falls within the mid‑range of gravity. While there are limitations in employing any sort of taxonomy, I accept that submission too.

74 I turn now to Jesse Tovey's personal history in more detail. Much of the following information was conveyed by Mr Saunders in his helpful written and oral submissions, and in the character references I received. In addition, some of this history is taken from the viva voce evidence given by clinical psychologist Carla Lechner, and her report, and from the reports of clinical neuropsychologist Anna McLaren and social worker Amy Meikeljohn.

75 Jesse Tovey is the third of six brothers. His parents separated when he was about five. Subsequent to this offence, Mr Tovey has had only very limited contact with his father and his four remaining brothers, and no contact with his mother or his half‑siblings.

76 He attended numerous primary schools, often moving when his mother was escaping violence from her partners (but not from Mr Tovey's father). Mr Tovey told Ms Lechner he was a "pretty good" student with his learning but had few friends.

77 He went to at least four high schools, including in Ballarat and Broome. He completed Year 9 in mainstream school and obtained his Year 11 VCAL at a learning centre.

78 Of his home life, Mr Tovey told Ms Lechner that his parents were "on and off a couple of times" but he could not recall domestic abuse between them. However, he described his mother's subsequent partner as "a piece of shit" who "beat Mum regularly". He added:

If he didn't get his own way, he'd call her names. One night before the refuge, I stayed at home while my brothers went to Dad's. In the middle of the night, he smashed his way into the house through a window, bashed her and dragged her into my bedroom. I was in the closet, and he kicked the chest of drawers into the cupboard. He told me she was a slut and made her say it out loud and kept bashing her. He left, the neighbours called the cops, and somehow Mum blamed me for it all.

79 Ms Lechner observed that Mr Tovey was tearful when recalling this experience, especially the betrayal by his mother, which seems to have marked the break in their relationship.

80 He said that the same partner was "violent to us as well", that he would "use his fists", and that he "choked me a couple of times". He recalled feeling scared and "always alone" when growing up.

81 Mr Tovey further disclosed to Ms Lechner that he was chronically sexually abused by a "family friend" between the ages 11 and 14. He said:

He'd offer to take care of me. I went to Broome and lived with him. It started with touching, then oral. If I pulled away, he'd get angry and say that I should be grateful, that I was being naughty.

82 The abuse escalated to penetrative sex. It ceased only when they returned to Victoria and Mr Tovey refused to have contact with the perpetrator.

83 He did not disclose the abuse until a few years later. However, his mother did not believe him. This was yet another experience of rejection, which made him feel "so bad".

84 In response to his home situation and the sexual abuse, Mr Tovey began abusing illicit drugs, with an ever‑increasing escalation in his use of various substances, particularly methamphetamine. As he put it to Ms Lechner, after leaving school, he "got on the drugs" and only engaged in "odd jobs".

85 He began smoking cannabis at the age of 12 or 13, and continued until his early twenties. At about 17, he was smoking up to 14 grams a day. He stopped smoking as he felt it had a detrimental impact on his mental health.

86 He started smoking methamphetamine at age 14 or 15. His period of heaviest use was "a few years ago". He would use up to 1.7 grams a day, and would "go until [he] crashed, [and] could be up for three to 14 days". It put him in his own "little world [where he] could forget [his] childhood".

87 He told Ms Lechner that he tried ecstasy "once or twice" but denied use of all other illicit substances.

88 He is currently prescribed the anti‑depressant Avanza and Buprenorphine depot.

89 While he drank alcohol "a bit" when he was younger, his drinking has not been problematic.

90 As for medical afflictions, Mr Tovey has been diagnosed with ankylosing spondylitis, which causes him chronic pain and discomfort. He is prescribed Celebrex, but this gives little amelioration of his symptoms. He also suffers from uveitis of the left eye.

91 Ms Lechner observed that, upon interview, while Mr Tovey's affect was appropriate to the matter at hand, he was "very flat and restricted for much of [their] meeting". He responded to questions in a monotone manner, and his eye contact was poor. Later in their discussions, he became visibly upset, crying when recalling aspects of his childhood, and then sobbing when talking about the offence and the loss of his brother. He indicated that until their meeting he had not once had the opportunity to debrief about his brother's death, and the immense sense of loss and guilt he felt.

92 His mood was very low, with a significant level of depression. He told Ms Lechner that he has attempted suicide "once or twice" and, in the past, has engaged in self‑harm. He still has thoughts of suicide from time to time.

93 While Ms Lechner saw no evidence of psychotic processes, Mr Tovey told her that he hears voices "a little bit". He said he sometimes hears:

someone speaking to me or call[ing] my name or feel[ing] as though the television is talking to me about my situation. I can block it out, can distinguish from reality. Usually, the voice is running me down, saying I'm not good enough. Deep down, I don't feel I'm good enough.

94 He said that he sometimes hears Josh's voice "just talking to me, he tells me it's not my fault".

95 In Ms Lechner's view, it is likely that these symptoms are a function of his depression and are likely to occur at times of high stress and particularly low mood. In her view, these are symptoms of a major depressive disorder.

96 Ms Lechner added that Mr Tovey's history indicates chronic exposure to all forms of abuse. He also reports that his brother's death, the circumstances thereof, and coming to terms with it (which he has not done as yet), have also been traumatic for him. He reports long‑standing problems with chronically low self‑esteem, interpersonal mistrust, emotional and behavioural dysregulation, avoidant behaviour and hypervigilance to situations of potential danger. Ms Lechner explained that these are all symptoms of complex PTSD. She opined that he tends to respond by "flight" (often into drug use) or "fight". She noted that he has never had treatment for his psychological distress.

97 In Ms Lechner's view, at their meeting, Mr Tovey's capacity for reflective and consequential thinking appeared mostly undermined by his depressed mood, and he was inclined to view himself and the world through a negative lens. She opines that his offending behaviour has led to a deepening of his depression and reinforced the negative self‑perception he has carried with him all his life. He has little belief in being able to effect positive agency in his life. He told her that he feels most depressed "about random things that affect my self‑worth". He feels anxious about not seeing his own children. He said he is rarely angry, although he admitted to past problems with managing his anger, especially when affected by drugs.

98 Mr Tovey's relationship with one partner, Naomi, was "toxic from the start" as they were both drug‑users. He felt he owed her something because she was the only one there for him after a motor vehicle accident in 2016.

99 His other partner, Jess, up and left one day, but he admitted that there was an intervention order in place between them. He was very upset by the loss of that relationship.

100 Mr Tovey has three young children. He is keen to be involved in their lives.

101 As for employment, Mr Tovey has worked in plaster‑casting, as a furniture removalist, in a chicken shop, at Target, and doing seasonal carnival work. The longest he held any one position was "a few months at the carnival". He last worked "years ago".

102 While in custody, he has been working in the kitchen and completing courses in information technology, welding and engineering, in addition to hospitality courses.

103 Mr Tovey admitted a criminal history for a range of offences, all of which were dealt with in the Magistrates' Court.

104 In 2016, he was placed on a community correction order ("CCO") for offences including damaging property, unlawful assault, breaching an FVIO, failing to answer bail, using methylamphetamine, reckless conduct endangering life, and driving while disqualified. Later the same year, he was imprisoned for 90 days and placed on a CCO for offences including unlawful assault, breaching an FVIO, recklessly causing injury, damaging property, and possessing methylamphetamine and cannabis.

105 In 2017, he was imprisoned for a month for offences of breaching an FVIO.

106 In 2018, he was placed on a CCO for offences of breaching an FVIO and driving while disqualified. He also brought up for breaching the CCO imposed in 2016.

107 In 2019, he was imprisoned for 379 days for offences including reckless conduct endangering life, damaging property, aggravated assault of a female, persistently breaching an FVIO, and unlicensed driving. At the same hearing, he was imprisoned for a month upon resentencing after cancellation of the CCO imposed in 2018.

108 In July 2020, he was sentenced to five months' imprisonment and placed on a CCO for offences including trafficking in cannabis and methylamphetamine, dealing with property suspected to be proceeds of crime, persistently breaching an FVIO, unlicensed driving, and theft of a motor vehicle.

109 Finally, in December 2020, he was imprisoned for a month for offences including possessing methylamphetamine and diazepam, possessing a weapon without excuse, handling stolen goods, and driving offences.

110 Mr Tovey told Ms Lechner that he has the support of his "aunt" (a long‑standing family friend) but few other family members. He said that, of his brothers, he was probably closest to Joshua, and that he "sort of" gets on with his remaining brothers and his father, although they have not had contact for some time. He said he has a "shit" connection with his mother.

111 Mr Tovey's elder brother Brandon Furlan provided a written reference. He said that he supported his brother "one hundred percent" and that he has "a room waiting for him, and another for his kids". He also said that he could guarantee his brother a full‑time job in his company. He regards him as "a good person that only lacked the right direction". He explained how Mr Tovey "was always the quiet one" who would do his best not to engage in their mother's "drama". He wishes to "help [him] in getting the chance at life he deserves". He made these remarks having earlier described, in graphic detail, the "severe violence", instability and deprivation that marked the brothers' childhood and adolescence, principally at the hands of their mother and her partners.

112 A family friend, Janelle Bardsley, provided a written reference in which she detailed some of the horrors to which Mr Tovey was exposed in his early life. She also offered her support, and noted that Mr Tovey's former partner's mother and grandmother were supportive of him too. Consistent with that view, the grandmother, Kaye Taylor, provided her own reference, in which she described Mr Tovey as "always polite, respectful and never a violent person". Ms Bardsley considers that Mr Tovey is not a bad person and that he is "deeply affected by [his brother's] death". She believes that, when released, Mr Tovey "will get himself set up with a good job and get financially secure so he can be a good father to his children".

113 Jessica Cresswell also provided a supportive reference. She was in shock at the thought that Mr Tovey was responsible for his brother's death. She had never seen him be violent in any way, or even raise his voice, and believes the offence is out of character.

114 I turn next to consider the mitigating factors urged by Mr Saunders, commencing with Mr Tovey's plea of guilty. This is a very significant mitigating factor, for these reasons.

115 First, while the plea of guilty was not offered until 13 February this year, when a trial was listed to commence on 14 March, it still avoided a trial and with it the necessity for witnesses, especially Mrs Tovey, to give evidence. While some witnesses, including Mrs Tovey, were cross‑examined at a committal hearing, Mr Tovey was still facing a murder charge at that time.

116 Secondly, the plea of guilty carries with it an even greater utilitarian benefit than at other times, and therefore attracts greater mitigatory weight. This is because of the plea's effect of relieving pressure on the administration of criminal justice in the wake of the backlog in the court system resulting from the pandemic. While those effects may be thought to be less pronounced than they were, especially in this Court, the criminal justice system as a whole is still well behind.

117 Finally, given the evidence capable of supporting self‑defence, some of which I have not mentioned, and the absence of any eyewitness to the stabbing, it strikes me that Mr Tovey has pleaded guilty in the face of an arguable defence to the charge. Further, even a cursory reading of the depositions reveals that the witnesses upon whose evidence the prosecution case was based, at least in part, were unlikely to fare well in evidence before a jury. To plead guilty in those circumstances makes the plea all the more valuable.

118 Next, I am satisfied that his plea of guilty also indicates genuine remorse. Further, Mr Tovey's presentation to and discussion with Ms Lechner make it plain that he is devastated by, and feels enormous guilt for causing, the death of his brother. Ms Bardsley made similar observations of Mr Tovey.

Reduced moral culpability because of appalling early life

119 Thirdly, consistently with the principles discussed by the High Court in Bugmy v The Queen, I am persuaded that Mr Tovey's exposure, by adults who should have known better, to extreme violence, mistreatment and instability in his early life, as well as sexual abuse, explain, at least in part, his recourse to violence on this occasion. In those circumstances, I think his moral culpability for his inability to control that violent impulse is reduced.[3]

120 Fourthly, I accept that, for three reasons, Mr Tovey's time in custody thus far has been a good deal harsher than usual.

121 First, it is notorious that the hardship of time spent in this State's prisons has been greater than usual in the last few years as a result of the pandemic's effects on incarceration protocols. These protocols have included restrictions on family visits, the imposition of longer and more frequent periods during which prisoners are locked down in their cells, and greater limits on access to educational and rehabilitative programmes. Mr Tovey's two‑and‑three‑quarter years awaiting trial and sentence in custody have coincided with these restrictions.

122 Secondly, I accept Ms Lechner's evidence to the effect that a person's PTSD is often aggravated in prison because of the situations that are likely to trigger traumatic memories and cause a resurgence of post‑trauma symptoms. It must be remembered that Mr Tovey has had an appalling early life, which is likely to make him sensitive to a triggering of the symptoms of PTSD. In this way, I am satisfied that prison has weighed more heavily on Mr Tovey than it would have done on a person in normal health.[4]

123 Thirdly, he has had a murder charge hanging over his head for over two years. Until the matter settled, it is likely that Mr Tovey was fearing the prospect that he might spend a large part of the rest of his life in prison.

124 As for the future, it might be expected that, eventually, the pandemic restrictions in custody will ease further and then cease. And the murder charge has now gone. But the substantial risk of his symptoms of PTSD being triggered is likely to remain throughout his sentence.

Substantial risk of deterioration of mental health in prison

125 Further, I also accept that Mr Tovey's PTSD may well worsen in prison.

126 In cross‑examination by Ms Moran, Ms Lechner gave evidence that she would be "fairly confident" that his condition would worsen, particularly given the nature of prison conditions and his concern to be isolated from others. Later, when pressed, she said that she was "pretty confident that [his condition] could worsen" and that "there's a strong possibility that they [i.e., his symptoms] would worsen".

127 I do not accept Ms Moran's submission to the effect that the language employed by Ms Lechner - in particular, her use of the words "could worsen" - did not meet the relevant test of this limb of the principles in Verdins. Rather, when Ms Lechner's evidence is considered as a whole, and having regard to the trauma Mr Tovey has suffered and the nature of the prison environment, I am satisfied that there is indeed "a serious risk" that prison will have "a significant adverse effect" on his mental condition.[5]

128 Finally, I am persuaded that Mr Tovey's prospects of rehabilitation, while not excellent or very good, are properly assessed as good.

129 Factors suggesting poorer prospects include his prior convictions, his long history of illicit drug use, his fragile mental state, and the limits on access to treatment and other programmes in prison.

130 On the other hand, while there are some offences of violence in his criminal history, he has not been convicted of any offences involving the use of weapons to inflict serious injury, and certainly nothing as serious as the present offence.

131 More positively, his plea of guilty, his genuine remorse, the incentive he has for the betterment of his and his children's lives, and the support he will have from others - all of these things point to much brighter prospects. Further, notwithstanding his prior convictions and his history of drug use, there are features of his character evident in the references that depict a gentler soul than this crime might suggest and one who is more likely to make a good fist of things if given the encouragement to do so.

132 Thus, on balance, I consider his prospects of rehabilitation to be good.

133 I turn now to the purposes of sentencing.[6]

134 General deterrence, denunciation and just punishment are important sentencing purposes in this case. Any person who, without lawful justification or excuse, kills another by an unlawful and dangerous act constituted by a stabbing to a vital area of the body will be guilty of manslaughter, and can expect to be punished by way of a substantial prison sentence. For this is a violent thing to do, with the ultimate consequence for the victim, and will permanently mar the lives of loved ones.

135 However, the sentencing purpose of just punishment must be tempered by the likelihood that, every time he looks into the eyes of his parents and his siblings, Jesse Tovey will be reminded of what he has done and the immeasurable hurt he has caused them, his own flesh and blood. That, in itself, is a form of punishment.

136 As for specific deterrence and protection of the community, those purposes also carry weight in the sentencing synthesis, especially given Mr Tovey's criminal history. On the other hand, the weight to be given to those purposes is reduced somewhat by his plea of guilty, remorse and prospects of rehabilitation, and by the immense sense of loss and guilt that he feels for killing his own brother.

137 Rehabilitation remains an important purpose in fixing sentence in this case. Since Mr Tovey has good prospects of reform, and because his reform ultimately will benefit the community too, rehabilitation is a purpose that must be afforded substantial weight in the sentencing synthesis.

138 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.

139 To this end, I have had regard to sentencing statistics for the offence.[7] In doing so, however, I recognise that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations. Further, those statistics concern sentences imposed during a period spanning both the previous (lower) maximum penalty and the current (higher) maximum for the offence. Nevertheless, they do give some guidance.

140 In order to assist in gauging current sentencing practices in a more targeted way, I have also considered some sentences imposed in the last ten years or so (and the associated reasons) in particular cases where the offence of manslaughter was committed by the infliction of a single stab wound.[8] In doing so, however, I recognise that, in the area of sentencing, it is almost always difficult usefully to compare cases. None of those I considered was quite the same as Mr Tovey's case. And, in any event, sentences are not precedents to be applied or distinguished.

141 In the end, as always, because of the limits of statistics and the process of comparison, I have been driven to rely principally on the circumstances of this case and sentencing principles and purposes to arrive at the appropriate sentence for this offence of manslaughter.

142 The final matter to consider concerns the principle of totality.

143 As I mentioned earlier, Mr Tovey has subsequent convictions for which he received sentences of imprisonment served during the currency of his remand on this homicide. On 18 August 2021, he was sentenced to three months' imprisonment for a contravention of an FVIO and theft of a motor vehicle. That sentence lapsed after 74 days, on 30 October 2021. On 30 August 2022, he was sentenced to one month's imprisonment in relation to a charge of persistently contravening an FVIO. That sentence lapsed after 26 days, on 25 September 2022.

144 Given the terms of s 18(2)(d) of the Sentencing Act 1991 (Vic), those two periods of imprisonment, which total 100 days, cannot be reckoned as a period of imprisonment already served under the manslaughter sentence under s 18(1). This means that the time for expiry of the head sentence and non‑parole period I am about to impose each will be extended by 100 days beyond the date each would have expired but for the service of the other sentences.

145 It follows that I must have regard to this consideration as a matter of totality. The point is all the more significant when regard is had to the likelihood that, had those sentences been imposed following the imposition of sentence on manslaughter, they would have been directed to be served either wholly or mostly concurrently with that sentence. Thus, in a broad way, the head sentence and non‑parole period I am about to impose have been reduced to reflect these considerations.

148 Balancing all relevant considerations as best I can, as I indicated at the outset, for the manslaughter of his brother Joshua Tovey, Jesse Tovey is convicted and sentenced to eight years and three months' imprisonment with a non‑parole period of five years.

149 The non‑parole period is a little shorter than might usually be imposed. In support of such an outcome, Mr Saunders made this submission:

[G]iven that there is a pressing need for some sort of treatment to assist [him], ... a significant period on parole would be a sentencing disposition that would be one that met all the relevant sentencing principles that need to be addressed, and also one that would be in the best interests of Mr Tovey and the community for fostering his rehabilitation.

150 I did not understand Ms Moran to say anything against this particular submission, which I accept.

151 By fixing this non‑parole period, Mr Tovey will have the opportunity in prison to work towards his release on conditional freedom at the end of that minimum period. If the Adult Parole Board sees fit to release him then, he will have the benefit of treatment and supervision for a substantial period on parole. Consistent with Mr Saunders' submission, were this to occur, it is likely to be conducive to his further reform which, in turn, would redound to the benefit of the community in the longer run.

152 I should add that I am satisfied that, in the particular circumstances that obtain here, including the burden Mr Tovey will continue to feel - probably for the rest of his life - in being responsible for his own brother's death, this head sentence and this non‑parole period meet all relevant sentencing purposes. In this connection, it is necessary to understand that s 5(3) of the Sentencing Act commands that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

153 Pursuant to s 18 of the Sentencing Act, I declare that, including today, 861 days of pre‑sentence detention be reckoned as served under this sentence.[9]

154 Pursuant to s 6AAA of the Sentencing Act, I am required to declare the sentence I would have imposed had Mr Tovey pleaded not guilty but been found guilty following a trial. This exercise always involves an element of guesswork, because the absence of a plea of guilty may affect other sentencing considerations, such as remorse, prospects of rehabilitation, and the weight to be given to sentencing purposes such as specific deterrence, yet it is difficult to estimate the extent to which these differences might have affected the sentence. Nevertheless, doing my best, I declare that, but for Mr Tovey's plea of guilty, I would have imposed a sentence in the order of eleven years' imprisonment with a non‑parole period of eight years.

[1] As was done in the written summary prosecution opening, I have left this and the following texts as they were, without correction for spelling or other errors, for their meanings are plain as they are.

[2] See s 5 of the Crimes Act 1958 (Vic).

[3] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at 594[43]‑595[44] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[4] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32](5) (per Maxwell P, Buchanan and Vincent JJA).

[5] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32](6).

[6] See s 5(1) of the Sentencing Act 1991 (Vic).

[7] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 274, June 2023.

[8] See the sentences to which I referred in footnote 19 in R v Kennedy [2023] VSC 401.

[9] From the day of his arrest (18 January 2021) to today (5 September 2023) is 961 days inclusive. Once the 100 days attributable to the other sentences served is deducted, the applicable figure to declare as pre‑sentence detention under this sentence becomes 861 days.