R v Trezise [2009] VSC 520

"At Patterson Lakes in the said State on 1 March 2008, carried out conduct which killed Alexander Dacre in the belief that it was necessary to carry out the conduct which killed Alexander Dacre, in order to defend himself from the infliction of death or really serious injury in circumstances where Daniel Dwayne Trezise did not have reasonable grounds for his belief."

The maximum sentence for this offence is 20 years' imprisonment.

2 The Crown position is that in circumstances where there is a claim to self-defence based upon your belief, which cannot be rebutted beyond reasonable doubt, it is reasonable and appropriate to accept a plea to defensive homicide. I can only sentence you on the basis that you acted believing it was necessary to do what you did, but that such belief was not based on reasonable grounds.

3 I explained on the plea, and I will say something about it later in these remarks, that no blame does or can attach to the unfortunate deceased, Alexander Dacre.

4 Yours is a difficult case, not in the least because you are the only witness to the events on 1 March 2008. The various versions you have given of those events I will return to later.

5 The following facts are accepted. At approximately 10 pm on Saturday, 1 March 2008, the deceased Alexander Dacre was found on the roadway outside 20 Coral Island Court, Patterson Lakes where you lived with your family. He was unconscious and covered in blood; he had been stabbed 36 times; suffering wounds to almost all parts of his body. There were major wounds to his chest, neck and head, and he had sustained a number of self-defence injuries. You were the person who inflicted those wounds. Medical assistance was obtained, but the blood loss was such that Mr Dacre could not be revived and he was pronounced dead at 10.52pm.

6 You were arrested by the police at 12.15 am the next morning, the 2 March 2008. It was noted you had sustained injuries to your hands and arms, and it follows from that Mr Dacre fought with you. It would have been out of character for Alexander to have initiated the fight, and he would have been entitled to defend himself from any attack by you.

7 You and Alexander Dacre had met one another through Ben Franz, with whom Alexander worked and who was a friend of your father's. You had become friends at some time toward the end of 2006.

8 In July 2007 you came to Melbourne from Benalla with your father and younger brother Dylan, following your father's substantial win on the lottery. He had recently purchased the house at Patterson Lakes. Ben Franz and Carla Spiteri also came to live in the house at Coral Island Court, but moved out into a rented unit in Frankston in about October 2007. Alexander Dacre moved into that unit in January 2008. He had previously been living with his family near Benalla.

9 On Friday, 29 February, your father Ian left for the weekend to visit some friends in Violet Town, taking your brother Dylan with him. You were home alone. Alexander Dacre worked that day with Neil Webster in his lawn mowing and gardening business, finishing at about 5.30 pm. He had two or three beers with Mr Webster before being dropped off at Chelsea Railway Station to get the train to Frankston. He arrived home at Frankston at about 6.30pm. Shortly afterwards, he rang you and arranged to meet you later that night. He was taken to the Patterson Lakes' shopping centre some time after 7.30pm. He stayed the night at your house in Coral Island Court.

10 On Saturday, Mr Dacre did not go to work. Various observations were made of the both of you throughout Saturday, and Mr Dacre was observed twice buying alcohol. At 3pm you and Mr Dacre went to the hairdressers and were observed as being a little intoxicated. During the late afternoon and early evening you were both observed fishing in the canal near your home. Mr Dacre told Ms Spiteri that he would not be home at Frankston that night, and it follows that he intended to spend the night again at your home.

11 At about 8.44pm that evening, you rang one Jade Blake at Benalla and you and Mr Dacre tried to convince her to come to Patterson Lakes for a party. At around 9 pm, calls were also made to the house by your father and Paul Guppie. You and a group of others, including Mr Dacre, apparently had plans to go fishing the next day.

12 At about 9.50pm, some observations were made by neighbours, which included hearing loud voices which sounded upset. As I have already observed, at approximately 10pm , Mr Dacre was found in the street. Attempts were made to save him but they were unsuccessful.

13 Police attended at the scene and you were arrested when they went into your house somewhere near midnight. You were covered with blood, and there was a large amount of blood found both in the house and outside it. Knives were found, one outside the house and several around the house. The knives matched those from a knife block in the kitchen. An inspection of the interior of the house, which was generally in disarray, also uncovered serious damage. It appeared that there had been a substantial disturbance inside the house, where a large number of alcohol-related items were also discovered.

14 On autopsy it was revealed that Mr Dacre had suffered 36 wounds, most of which were penetrative stab wounds. The wounds to the heart, neck and skull were the most serious, each capable of causing death individually. Dr Malcolm Dodd, a Forensic Pathologist, was of the opinion that the knife found outside the house was the knife likely to have caused the more serious injuries. You also suffered some injuries, which were comparatively minor, although two of them required sutures.

15 The autopsy also showed Mr Dacre had a blood alcohol content of 0.190 percent. I am prepared to accept that since the two of you had been drinking together since Friday night, your blood alcohol was likely to have been something of the same order. That is, close to four times the legal limit for driving a motor car. You had told the police at the time of the arrest that you had drunk three bottles of Jack Daniels.

16 You have said various things about that night, which was noted by the Crown in opening:

"Since his arrest the accused has made a number of statements to police and to a doctor, which the Crown says are all patently false. As well as inconsistencies between different versions, no single version proffered by the accused man can account for the extent or seriousness of Alexander Dacre's injuries, or indeed account for Alexander Dacre's death. The first statement was to the policewoman, Carolyn Hill, at the scene of his arrest on 2 March 2008 at 12.30 am. The accused said what had occurred was: 'He came over, brought some drinks. He punched me, I punched him, he cut me, I cut him and that's that'."[1]

17 Around 1.12am, while in the ambulance prior to being taken to hospital for treatment, you told the informant Detective Senior Constable Tippett an alternate version of events, which he recounted as follows:

"[Trezise] said that Dacre had come to his house and stayed the night and the next day they were drinking together and ended up having a big argument. He said the argument was over family issues, that Dacre was saying some Bible words and that he said "'Dude, I don't want to hear you say anything about that, about Bible.' Then he pushed me, I pushed him, and he pushed me, I pushed him again, and, yeah, he stabbed me or tried to stab me but I really tried hard to break it up. He just cut me. He had a blunt knife which was mine, which I kept in my room in a case. He tried stabbing me and I tried blocking, and, yeah, then he goes 'Well I'm gonna try and stab myself'." [Tresize] claimed he tried to stop Dacre from stabbing himself but he fell and landed on top of him. He said he did not mean to but he tripped on a hose and fell onto Dacre and the knife went into Dacre and there was blood. He said that Dacre crawled outside. He denied stabbing Dacre."

18 A third version of events was given to Dr Christopher James Groombridge who treated you at Sandringham Hospital at about 3.30am on 2 March 2008. You told him you and your friend had been 'cutting each other with knives'. Dr Groombridge recorded in his notes:

"When I asked Mr Trezise the cause of his injuries he reported an incident with a friend earlier that morning involving knives. He reported he was cut by that friend and then he cut his friend back."

That conversation took place in the presence of police.

19 The final version given by you was in a record of interview conducted at the Victoria Police Homicide Squad offices on 2 March 2008, commencing at 10.24am, wherein you said:

"Alex stabbed me a couple of times. He said, well we were both drinking. If it wasn't him that did it, it would have been me."

20 You stated Dacre charged you with a knife and you pushed him away but he kept charging. You said that you got the knife from Dacre and waved it around in the air in order to defend yourself. You said Dacre kept charging so you threw the knife into the wall. You said that the fight started over a rude song that had been playing on the stereo, which had caused Dacre to crack it, start swinging punches then to arm himself with a knife from the block of knives in the kitchen. You said this knife, that is the knife you claimed you had wrestled from Dacre and thrown into the wall, was the only knife used in the conflict.

21 You denied all knowledge of the three other knives - that is, the knife found in the sink, the knife near the vacuum cleaner and the knife secreted in the bushes at No.18. When asked, 'Did you stab Alex?' you replied, 'I can't say'. You admitted to having consumed alcohol.

22 The final version of events you gave was to Mr Jeffrey Cummins, forensic psychologist, where you stated during interview:[2]

"I was a bit pissed and so was he. I puked, we were in my room, he pushed me and I put my hand back to stop myself and then he started losing it. He was telling me I was spoilt and a fucker and a nigger and then I went to the bathroom and I thought he'd left. He had knives, about two or three. When I came back into the bedroom, he walked back into the room and started coming at me. He dropped one of the knives, I picked it up, he said, 'You'll die now you C' - he stabbed me in the right arm and then I stabbed him back, the whole thing went overboard. He ran out and collapsed in the gutter. I might have followed him because I think the police said there was a trail of blood. My CD player and TV were smashed. I spear-tackled him into my mirror. He wasn't going to stop attacking me. He must have walked out or stumbled out."

23 Not one of those versions of events can explain the frenzied attack which culminated in the death of Alexander Dacre. I am satisfied that you have very little, if any, proper recollection of what happened on the night of 1 March 2008. That is, taking into consideration the amount of alcohol that you had consumed together with your underlying intellectual disability. What occurred overnight on Tuesday 20 January and Wednesday 21 January 2008 however, may throw some light on these events.

24 On the night of 20 January, you and Alexander Dacre went to visit Lou-Anna and Leslie McMaster. Both you and Alexander had been drinking and appeared to be affected by drink when you arrived. You brought with you two ten-packs of Jim Beam and Cola. You and Alexander started a play fight, which escalated to became fairly serious. Both Lou-Anna McMaster and Alexander tried to calm you down. You curled up on the floor in a foetal position and started crying. You said words to the effect "No-one cares, no-one understands". You went outside the house and got a garden stake. You were then in a rage. You hit a street sign or some street signs and when Alexander tried again to calm you down, you threatened him with the garden stake. He did later succeed in calming you down. You spent the night at the house and you apologised for your conduct the next morning but you seem to have no memory of your behaviour.

25 Your background and upbringing have been extremely difficult. You were born in Adelaide on 27 July 1988. Your mother was Aboriginal. At the time of your birth, she was an alcoholic. That fact and other birth difficulties have contributed to your intellectual disability. On recent examination you were found to have a full-scale IQ of 76, which places you within borderline range and in the bottom six per cent of the community. You have a younger sister and brother who are in foster care. You have not had contact with them although you have tried in recent times to re-establish that contact. Your mother died when you were about 17. Your parents had separated when you were around five years old, although on occasions, your mother would return to the family. Your father formed another relationship in about March 1999 and your half brother Dylan is a product of that relationship. That relationship was very difficult and marked by domestic violence. Your father then had an anger management problem. That relationship ended in 2001 although extended into 2002 on a spasmodic basis.

26 The Department of Human Services and other agencies intervened to protect you on a number of occasions, more particularly between 2000 and 2002 when you were taken away from your mother and step-mother. They had expressed a wish that you be removed. Your relationship with your stepmother was bad and you were abusive to her. Your behaviour when in foster care appears to have been quite good.

27 Because of your intellectual disability, your schooling was difficult. You had little schooling up until 1999. Your schooling having been all the more difficult because of the itinerant lifestyle that your family had observed for many years up until 1999. After attending a number of schools, you were eventually able to attend the Wangaratta Specialist School. Mr and Mrs Couttie gave evidence about your time there and the relative success that you enjoyed during those years.

28 With respect to your dealings with the Department of Human Services and the Education Department, I have received and read a number of reports and their appendices. I received a report of the Department of Human Services dated 7 August 2000, a report from the Sherbrook consulting psychologist dated 31 October 2000, a report of the Department of Human Services dated 4 February 2002 and a report from Lewish Psychology of 17 September 2003.

29 You were apparently the subject of racial abuse, and you were the only Aboriginal who attended the specialist school. You had very clear and specific learning difficulties with respect to reading, writing and maths, but you did reasonably well at sport and in other physical pursuits. You were however, sometimes violent at school and demonstrated a lack of control consistent with your underlying problems.

30 During that time it was suggested that you showed some interest in your Aboriginality and a recommendation was made to the effect that interest be used in your educational development. As far as I can tell, it does not seem to have been taken up.

31 You finished school at the end of 2006. You were placed on a disability pension and since then have never been in paid employment, however you have done some work assisting; for instance, with tow-truck work at Carrum.

32 Your family life changed after your father won a large amount in Tattslotto. As I have already observed, that led to you moving from Benalla to Patterson Lakes in July of 2007. You helped around the house but did no other work, apart from assisting with the tow truck as I have observed.

33 Alexander Dacre was 20 at the time of his death. He was just beginning his adult life. I received victim impact statements from his mother and father, Helen and Gary; his grandmother Marie and his aunt, Linda De Bono. I have received material about Alexander's brother and sister Carl and Susan and Ms De Bono has also described the effects of these events on her children. It is an understatement to say that the whole of the extended family has been devastated by the loss of Alexander. He was much loved and is missed beyond description. Nothing I can do can restore their loss. That loss is magnified by the complete senselessness of his death at such a young age. Nothing I have heard would lead me to believe that he was violent in any way.

34 After you were arrested, you were examined by Dr Danny Sullivan, who is a forensic psychiatrist, and I received a report from him dated 11 March 2008.

35 You were released on bail on 26 June 2008; you have been reporting daily to the police since and have been under the supervision of the Southern Youth Justice Unit of the Department of Human Services at Dandenong.

36 There are two major features of what you have done whilst on bail. In October 2008, you commenced a six week course with Jesuit Social Services, called a "TOE program" which included a survival trip to the Snowy River. You have not had alcohol since.

37 The other feature is that you have made contact with Koori community on the Mornington Peninsula, at first through the Stepping Stones Koori Painting Program. I received letters from Mr Eric Bedford and Mr Dean Davis. You have embraced your Aboriginal heritage and joined in many local activities. You have shown leadership qualities and been involved in creating the Baluk Arts Company, the first indigenous arts group on the Mornington Peninsula.

38 I received a report from Kim Paynter of DHS who has been responsible for your supervision for some of the period whilst you have been on bail. That report detailed the course undertaken by you at Frankston is a TAFE course, and that you have been supported by Mr Ronnie Burns, who also gave evidence before me. Further, you are enthusiastically involved in football, playing for a team for the disabled at Cranbourne.

39 You continue to have difficulties comprehending and organising your time; any money that you have, and you have plain communication difficulties.

40 Your Aboriginality is relevant to your sentence and will have an effect upon the circumstances in which you serve it. Your Aboriginality has not been a particular feature of your life in the past, although it is a very positive part of your life now. It is but one of the aspects of your very difficult and unpleasant childhood, particularly during the time your stepmother was living with your father. You had a difficult relationship with both her and your father. It is of note that since she left, your relationship with your father has been a good one. I have given substantial weight to the circumstances surrounding your upbringing, your schooling and your family life when considering your sentence.

41 Although I regard your prospects of rehabilitation as guarded, they are much improved because of what you have undertaken whilst on bail. I am satisfied that both you and the community would benefit from a longer than usual non-parole period being fixed with respect to this sentence.

42 In addition to the report which I have mentioned, from Dr Sullivan, I have also received a report and heard evidence from forensic psychologist, Mr Cummins whose report was dated 14 August 2009. Mr Cummins diagnosed you as suffering from a chronic adjustment disorder with mixed disturbance of emotions and conduct.

43 Given your upbringing, such a diagnosis is hardly surprising. That, together with your intellectual disability form another relevant factor in your sentencing. The application of the principles of both general and specific deterrence will be necessarily moderated because of those matters.

44 Both Dr Sullivan and Mr Cummins have commented on your potential abuse of alcohol, and the part it had to play in this offending is inescapable. Your behaviour seems so uncontrolled and violent in drink, it is in your best interests to prepare yourself for a life free from alcohol.

45 You are young, having just turned 21. Dr Sullivan and Mr Cummins both regard you as immature and naive and consider you would be at risk in the adult prison system. Your Aboriginality is also important in that regard. I will separately communicate to the authorities the particular matters which place you at risk.

46 I do express in these reasons my request that the authorities take care to manage you in the prison system having regard to your youth and vulnerability, which are based in particular on your intellectual capacity and your limited interpersonal skills. I accept that insofar as you are able to be, you are remorseful for what you have done. The fact remains, however, that the circumstances of the death of Alexander Dacre are unexplained. Regardless, were it explained, no adequate reason could possibly be found for it.

47 It was submitted to me that this case should be placed in the lower the range of seriousness for offences of this kind. I am entirely unconvinced by that submission. It is true that there are a number of very powerful matters which operate in your favour, that however is not one of them. This was a frenzied attack. I am satisfied beyond reasonable doubt that I should sentence you on the basis that Alexander Dacre did not do anything of substance which merited your attack on him. I do accept that in your alcohol-fuelled state you somehow reasoned that he was a threat to you, but you accept, by your plea, that you did not have reasonable grounds for that belief. In any event, your reaction was totally disproportionate. I will sentence you on the basis that the crime falls in the middle range of seriousness given your intoxication and your intellectual capacity. However, you have pleaded guilty and I take that matter into account in fixing the sentence.

48 I have been provided the details of other sentences which have been imposed for this offence. I must have regard to the fact that your conduct was intentional and that it was done to cause death or really serious injury. I have had regard to general sentencing principles. I attempted to obtain some material from the Department of Corrections about your future in prison, however have not had much help in that regard. I do know enough about the system, however, to proceed to sentence you without receiving further material.

49 Mr Trezise, I sentence you to be imprisoned for eight years. I fix a period of four years before you are eligible for parole. I indicate that had you not pleaded guilty to this offence, I would have imposed a sentence of ten years with a non parole period of six years. That calculation is extremely difficult because there are so many other factors that come into the process of sentencing you for this offending. In relation to pre-sentence detention, I declare that the period to be reckoned as already served and to be noted in the records of the court is a period of 117 days.

[2] Report of Jeffrey E. Cummins dated 14 August 2009, p 4.