R v Trent [2007] VSC 229

3 As a result, you returned to Mr Potter's flat. You asked Potter for something to protect yourself. In his evidence at the committal, Potter stated that you said to him "I think he's going to his car to get something." Potter then pointed you to a knife which was hidden under a cushion in his lounge room suite. That knife was an old fishing knife. Its blade was 15 cm long. You took hold of the knife. The blade of the knife was wrapped in a brown vinyl pencil case secured with sticking tape, with the handle sticking out.

4 While you were in the unit, Mr De Bono was banging on the windows and door, kicking the door and calling for you to come outside. He called out "come outside and I will kill you." Mr Potter told you that he did not wish you to remain in the unit and insisted that you leave. You opened the wooden door and the screen door and went outside. At that stage you were holding the knife, which was still wrapped in the pencil case.

5 At this point there is a conflict in the evidence as to the sequence of what followed. In your record of interview, you said that Mr De Bono had already armed himself with a piece of wood which he had obtained from his car. You stated that he was standing at the doorway of the premises as you opened it, and that he then began to attack you with the piece of wood until you showed him the knife. At some stage you took the pencil case off the blade of the knife. De Bono stepped back towards his car but then came at you again with the piece of wood. You put your arm up to protect yourself and the knife came into contact with his left chest, as a result of which he staggered backwards and fell to the ground.

6 On the other hand, according to Ms White, Mr De Bono only obtained the piece of wood from his vehicle after you had emerged from the flat with the knife in your hand. At the committal proceeding, Ms White was adamant, when cross-examined, that it was not until after you emerged from the flat with the knife that Mr De Bono returned to the vehicle, reached in and grabbed the piece of wood. She said that you and he then came close together. De Bono was swinging the piece of wood, and you stabbed him in the torso.

7 It is not possible for me to resolve the difference between your account and that of Ms White. In those circumstances, I am not able to make any positive finding against you that, at the time at which you left the flat with the knife, Mr De Bono did not have the piece of wood already in his hand. In any event, on either view of the facts, it is clear that either before or after you armed yourself with the knife, Mr De Bono obtained the piece of wood from his vehicle. There is independent medical evidence which supports your account that at some stage in the ensuing confrontation, you were struck on your left upper arm by the piece of wood wielded by De Bono. At the time at which Mr De Bono was stabbed by you, you were both moving towards each other. At that time you had the knife in your hand and Mr De Bono had the piece of wood in his hand. De Bono was swinging the piece of wood and you struck him the fatal blow with the knife.

8 In some parts of your record of interview you denied stabbing Mr De Bono, but maintained that you put the knife in front of you and, by some means, it went through De Bono's chest. However, when the police first arrived you expressly admitted to them that you had stabbed him. Furthermore, in other parts of your record of interview you conceded that you did stab him. That concession is consistent with the evidence of Ms White who, in her statement to the police, and also in her evidence at the committal proceeding, described how you lunged towards Mr De Bono and stabbed him with the knife. I am therefore satisfied that you did stab De Bono.

9 As a result of that blow, Mr De Bono collapsed to the ground and shortly thereafter died. The evidence of the pathologist is that he suffered one single stab wound to the upper left chest adjacent to the armpit. The pathologist did not find any other relevant sign of injury on the deceased.

10 Immediately after the incident, you asked Potter to dispose of the knife. At some stage you then called the ambulance, and you remained at the scene until the police arrived. On their arrival, you were clearly most upset, and concerned that De Bono receive immediate medical treatment.

11 In your interview you maintained that you had obtained the knife from Potter, and stabbed Mr De Bono, in self-defence. On the other hand, Mr Barry, on behalf of the Crown, has submitted that you acted as you did because you were angered by Mr De Bono's accusation that you had sold his son drugs. I accept that at the time at which you obtained the knife from Potter's house, you believed that De Bono was about to arm himself with a weapon. I also accept that when you left Potter's flat armed with the knife, you did not then intend to stab De Bono.

12 However, it is significant that when you were in Mr Potter's flat you did not telephone the police or anyone else for help. You did not seek to persuade Potter to permit you to remain in his flat until De Bono had cooled down or departed. Nor did you ask Potter if there were any other means by which you might leave his premises without confronting De Bono. Furthermore, shortly after you had left the flat with the knife in your hand, Mr De Bono walked back to his car. You say that that was after he had attacked you with the piece of wood. You did not then take the opportunity to try to withdraw into Potter's flat. Instead, you chose to continue the confrontation with De Bono, which resulted in his death.

13 In my view, the only reasonable inference is that, after the initial confrontation between you and Mr De Bono outside Potter's flat, you returned to Potter's flat and obtained the knife for the purpose of threatening De Bono with it. Rather than seeking any alternative means of avoiding or defusing the argument between you, you were bent on confronting De Bono with the knife in order to force him to back down. While I accept that there was an element of self-protection involved in your conduct, the facts, in my view, demonstrate that your primary intention was to intimidate De Bono, so that you might make your way to your own vehicle and depart the premises.

14 You have pleaded guilty to the crime of manslaughter by an unlawful and dangerous act. It was accepted on your plea that the unlawful and dangerous act was constituted by the stabbing by you of De Bono. As I have stated, I am satisfied beyond reasonable doubt that in the course of the confrontation, you did intentionally stab De Bono. Accordingly, I accept that it is appropriate that I sentence you on the basis that that is the unlawful and dangerous act which constitutes the offence to which you have pleaded guilty.

15 It is, of course, important to observe that you have not been convicted of, nor have you pleaded guilty to, the crime of murder. The Crown's acceptance of your plea of manslaughter means that the Crown accepts, as I am obliged to accept, that, when you stabbed De Bono, you did not intend to kill him, nor did you intend to cause him really serious injury. Rather, as I have stated, you have pleaded guilty, and the Crown has accepted that plea of guilt, to the crime of manslaughter by an unlawful and dangerous act in stabbing De Bono. In other words, your action in stabbing De Bono was a dangerous act, in the sense that a reasonable person in your position must have realised that you would have exposed Mr De Bono to an appreciable risk of serious injury. It is on that basis that you are to be sentenced.

16 The offence to which you have pleaded guilty is a serious offence, involving the taking of another man's life by your unlawful and dangerous act. The most serious aspect of the offence is the use by you of a knife in the altercation between yourself and Mr De Bono. The wielding of a knife in an angry confrontation is always fraught with danger. The experience of the Courts is that the use of knives has been all too prevalent in recent years, resulting so often in either serious injury or, as here, in tragedy. Those who resort to using knives in such situations can only expect the Courts to take a grave view of their conduct. In sentencing you, I am obliged to take a serious view of your offence, not only as a lesson to you, but also to deter others who are minded to resort to the use of knives to resolve their disputes.

17 On the other hand, I accept that, when you first took possession of the knife, you did not intend to use it to stab De Bono. Rather, as I have found, you intended to use it to intimidate him, in order to get the upper hand in the altercation between the two of you. I accept that you stabbed him in the heat of the moment, and that you only formed the intention to stab him at the very moment at which you struck the fatal blow. I also accept that shortly after you had stabbed De Bono, you genuinely experienced remorse over what you had done. While no doubt your remorse derived in some measure from the predicament in which you had placed yourself, nonetheless I do accept that, at that time, and also at the time of your record of interview, you genuinely regretted that your actions had caused the death of another human being.

18 In determining your sentence, I am required to take into account current sentencing practices, and in particular the range of sentences ordinarily imposed in cases such as this. In that context, the Crown prosecutor, Mr Barry, has put to me that the Crown's position is that this case should be classified as being at the lower end of the range of cases of manslaughter.

19 Certainly, the facts of this case are less serious than many other cases of manslaughter where the victim has been stabbed. As your counsel, Mr Lindner, has pointed out, you did not bring the knife to the scene of the crime. Indeed, when you asked Potter for something with which to protect yourself, it was Potter who pointed you to the knife. You only formed the intention to stab Mr De Bono at the very last moment. You struck him the one blow. That blow was struck in the course of an altercation between yourself and your victim, in which the victim had, and was wielding, a piece of wood. As I have stated, you readily experienced genuine feelings of remorse as to what you had done.

20 In addition, I am bound to take into account, as a mitigating circumstance, your plea of guilty. The law specifically provides for that factor to be taken into account in your favour. It is in the public interest that offenders such as yourself acknowledge their guilt, and plead guilty to their crimes. The process of acknowledgment of guilt is at least a first step along the path to rehabilitation, and to a proper expression of your acceptance of responsibility for your conduct. Further, by pleading guilty you have saved witnesses, and in particular those who were close to Mr De Bono, the trauma and strain of reliving the tragic event in the witness box. For those reasons, in addition to the saving of Court time and community resources, the law provides that you are entitled to a credit for your plea of guilty.

21 I have read, and re-read, the victim impact statements which have been tendered on your plea. As a matter of law you are not to be punished more or less depending on how much or how little suffering your conduct has caused to others. However, the victim impact statements are relevant as part of the sentencing process. Your actions have resulted in pain and trauma to others which is beyond measure. That grief and suffering is a direct consequence of your violent actions. It is only appropriate that as the sentencing judge I refer to those statements, as a salutary reminder of the grave consequences of your criminal act.

22 Some thirteen victim impact statements have been tendered to me. The large number of those statements reflects the widespread grief and trauma which your actions have occasioned. I have no doubt that others, too, have been grievously affected by the death of James De Bono.

23 Your actions on 27 November 2005 have taken the life of a man who was deeply and passionately committed to his family. Whatever the rights and wrongs of the argument which developed between the two of you, it is utterly tragic that Mr De Bono lost his life trying to protect his son from what he perceived to be a grave danger to his health. James De Bono was 45 years of age at the date of his death, and had many years of good life to look forward to in the company of his family and friends. Your actions have deprived him of that life.

24 Your actions on 27 November 2005 have also deprived the family of Mr De Bono of a much cherished and beloved member. You have taken from Ms White her husband and soul mate of 28 years. You have taken a father from his children, and a son from his mother. Your actions have shattered a family. The victim impact statements eloquently portray the struggle which so many of them are still experiencing in coming to terms with their loss.

25 As I have said, the depth and measure of the suffering of the family of Mr De Bono is not a matter which aggravates the sentence, or your wrongdoing. Nonetheless, it is important to refer to it, not only to acknowledge the suffering of the victims of your crime, but also so that you can properly understand the grave consequences which you have wrought.

26 I turn then to matters relating to your background. You are 39 years of age, having been born in December 1967. During your early years, you had an unsettled and difficult childhood. Your parents separated when you were about two years of age. At the age of four you witnessed your mother being stabbed by an intruder. During your childhood and in your early teenage years, you lived alternately with your mother and your father. Your father did his best by you, but, being an interstate truck driver, was limited in what he could do to raise you. At one stage you were placed in a boys' home. Your mother had a relationship with another man, by whom she bore two further children. Your stepfather was violent both to your mother and to yourself.

27 Your formal education was significantly interrupted, and ultimately you left school at the age of 13 years. The psychological reports which have been tendered on your plea reveal that you are, in fact, of normal or superior intelligence. It is clear that, through no fault of your own, you have underachieved in your education. After leaving school you undertook a correspondence course. Some of that course was completed by you while you were travelling interstate in your father's truck.

28 Due to the stresses and unsettled nature of your early years, you turned to the use, and abuse, of alcohol and cannabis at the young age of 14. Later, you also used amphetamines. In your 20s, you began to inject heroin. Your life has been blighted by the abuse of illicit drugs. Your long list of previous offences includes many involving drugs. Your counsel has told me that a number of the other previous convictions on your record involved or arose from the consumption by you of drugs.

29 After leaving school you lived an itinerant life. You were, in your own words, a "jack of all trades". Basically, you were an unskilled labourer working in varied occupations such as on fishing boats, on building sites, and on sugar cane plantations. You also worked as a truck driver.

30 Your personal life has been marked by a significant degree of instability. You have had relationships with three different women, by whom you have had four children. Your last relationship, which was current at the time of this offence, lasted for 14 years. You have two children by that relationship, who are now aged 10 and 12 years respectively. As a result of the circumstances of this case, and your imprisonment, that relationship has been brought to an end. Your partner has gone interstate with the children, and in the company of another man. She intends that you have the custody and care of the children upon your release from prison.

31 You have also experienced difficulties with your health. In February 1999, you were involved in a motor vehicle accident in Western Australia, as a result of which you sustained a compound fracture to your skull. As a consequence of that accident, you suffered bifocal epilepsy. You have been placed on medication for that condition. Two years later, you were involved in another incident when you were assaulted, and sustained a further injury to the same region of your skull.

32 It was put to me on your plea that your two head injuries are relevant to the circumstances of your offending in this case. In particular, it was submitted that as a result of your previous injuries, you were particularly anxious about sustaining any further injury to your head when you were confronted by De Bono. It was submitted that it was for that reason that you took hold of and subsequently used the knife. However, I find it difficult to accept that your previous injuries played any role in the circumstances of this case. If, as it was submitted, you were particularly anxious about sustaining further injury to your head, then it is surprising that you did not attempt to avoid the confrontation with De Bono, when you had the opportunity to do so. Further, I note that in your record of interview you did not mention to the police that you reacted as you did because of your increased anxiety about sustaining a head injury.

33 Since the age of 18 years, you have incurred a number of previous convictions. You have come before the Courts on 24 separate occasions. However, it is noteworthy that you have only been before the Courts on three occasions on charges of assault. In each instance, the charge was one of common assault and was dealt with at a summary level. The sentences received by you in respect of those offences suggest that the circumstances of the offence were not particularly serious. The fact that, notwithstanding your unsettled and difficult past, you do not have a significant history of previous violence, supports the view of the two psychologists, Ms Warren and Professor Brewer, that you are not a violent man by nature, but, rather, over the years, have developed mechanisms for avoiding violent conflict. That is a matter which I take into account in your favour. It is to your credit that notwithstanding your longstanding use of drugs, and notwithstanding your difficult past, you have, by and large, been able to steer clear of violent incidents attracting the notice of the law.

34 In more recent times, there have been a number of factors which give some hope for your successful rehabilitation upon the completion of your gaol sentence. In 2003, you attended at the Western District Alcohol and Drug Agency for treatment relating to your addiction to morphine. Dr Richards has provided a report indicating that you complied fairly well with the conditions of the program. At the same time, you had moved from Queensland to Victoria and had undertaken training with an employment agency. As a consequence, you upgraded your heavy vehicle licence, and had been doing some casual work driving trucks.

35 In April 2004, you had commenced work with Mr Perry Carapalis, who is a longstanding friend of your father. You remained in that employment for 12 months. Mr Carapalis told me that the work performed by you involved a degree of responsibility, since you were required to haul and deliver caravans interstate. Mr Carapalis told me that you were good at your work, and indeed were one of his best employees. He described you as being an honest and efficient employee. Your employment with Mr Carapalis only ceased when, as a result of rising costs, he was unable to keep you on as a driver.

36 Since your imprisonment following your arrest in this case, you have worked as a billet. A number of certificates which were tendered on your plea indicate that you have successfully undertaken and completed a number of courses both at Port Philip Prison and at Metropolitan Reception Centre.

37 In addition, Mr Carapalis told me that, upon your release from prison, he is prepared to assist you and support you. He informed me that he was prepared, at least in the short term, to offer you and your two children accommodation in his own home. Mr Carapalis told me that he is prepared to help you set up your own home. Furthermore, he will offer you a job using pressure cleaning equipment which Mr Carapalis owns.

38 The support which Mr Carapalis has offered to you is most generous, and particularly commendable. It remains to be seen just how realistic his plans are for you. Nonetheless, it does bode well for your rehabilitation that a person such as Mr Carapalis is prepared to stand by you and do what he can to help you resume your life in the community after you have completed your term of imprisonment.

39 On your plea I was informed that since December 2005, you have been held in remand in the protection section of Port Philip Prison and of the Metropolitan Remand Centre. I was told that you had received threats to your safety from other prisoners arising out of the circumstances of this offence.

40 No evidence was led as to the reason for, or the circumstances of, your present disposition in prison. However, I accept that you are, and may need to continue to be, in the protection section of the prison. Accordingly, you will have less access to courses and other facilities than other prisoners. Your movements will be more restricted. As a result, your term of imprisonment will be more onerous for you.

41 In summary then, there are a number of mitigating circumstances relating to the offence and arising from your background and your present circumstances. In respect of the offence, I take into account the fact that you only formed the intention to stab Mr De Bono a brief instant before you struck the fatal blow. You only struck him one blow. You did not bring the weapon to the scene. The stabbing occurred in the heat of an angry confrontation between yourself and Mr De Bono. I have also accepted that, shortly after you stabbed Mr De Bono, you felt genuine remorse for the taking of his life. I also take into account that you have pleaded guilty. In terms of your background, you have had a difficult life. Notwithstanding your long list of previous convictions, you do not have an established history of violence. You have taken steps to redeem yourself. There is some reason to hope for your successful rehabilitation upon completion of your term of imprisonment. I also accept that prison will be more onerous for you because of the need for you to remain in protection.

42 On the other hand, the offence to which you have pleaded guilty is a serious offence. The involvement of a knife in the offence is a matter which adds to its gravity. Your sentence must be adequate to express the Court's, and the community's, condemnation of your conduct. It is also necessary that the sentence be sufficient to deter other persons who might otherwise be minded to resort to the use of knives, and other dangerous weapons, in order to resolve disputes. In addition, while in large measure I accept that you have already learnt your lesson, nonetheless the concept of specific deterrence has a part to play in determining your sentence.

43 The determination of your sentence is a matter which has occasioned me some difficulty. As I have already stated, I am required to have regard to current sentencing practices, and in that respect I take into account the concession by the Crown that your offence is at the lower end of the scale of cases of manslaughter. Bearing that in mind, and taking into account the mitigating circumstances to which I have referred, I therefore sentence you as follows.

44 I sentence you to seven years' imprisonment. I fix a period of four years during which you are not eligible to be released on parole. Pursuant to s.18 of the Sentencing Act, I declare the period of 578 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the Court.**

I certify that the 12 preceding pages are a true copy of the reasons for Sentence of Kaye J of the Supreme Court of Victoria delivered on 27 June 2007.