Facts of the Offence
5In November 2009, Ilija Plavsic (then 62 years of age) lived in a single-storey residential dwelling at Canley Heights. The Offender (then aged 53 years) resided with Mr Plavsic at the premises. Mr Plavsic had known the Offender for more than 15 years through his work as a cement renderer, but the Offender had only recently commenced to reside with Mr Plavsic.
6In November 2009, Tony Darkovski ("the deceased") (then aged 32 years) worked for Mr Plavsic as a cement renderer when required.
7On the morning of Thursday, 12 November 2009, the deceased went to the Canley Heights premises to meet Mr Plavsic for the purpose of travelling to work together.
8Shortly before 7.00 am that day, the Offender telephoned his girlfriend, Olga Savic, and spoke to her for some time. According to Ms Savic, the Offender seemed happy during this conversation. The Offender left the Canley Heights premises and visited Siki's Café (about 300 metres away) where he remained for several hours. Whilst away from the Canley Heights premises, the Offender purchased some beer from a bottle shop.
9Mr Plavsic and the deceased finished work and returned to the Canley Heights premises during the afternoon. At that time, the Offender was not at the premises. The deceased asked Mr Plavsic for money so the latter telephoned Dragan Paravinja, a renderer whom he knew, who indicated he would be in a position to lend Mr Plavsic a sum not exceeding $200.00 after 5.00 pm that day.
10The deceased left the Canley Heights premises and purchased a five-litre cask of wine which he brought back to the premises. He commenced to drink the wine with Mr Plavsic. The evidence indicates that both the deceased and Mr Plavsic were regular and enthusiastic drinkers of alcohol, as indeed was the Offender.
11During the course of the afternoon, the Offender returned to the Canley Heights premises carrying some of the beer which he had purchased.
12What followed during the course of the afternoon was the subject of contested evidence at the trial. The Crown called Mr Plavsic, who conceded readily that he was affected by alcohol at the time of relevant events that afternoon. The Offender gave evidence at trial, and had provided an account to police in an ERISP conducted on the evening of 12 November 2009.
13Put shortly, Mr Plavsic said that the three men were seated in the dining area of the premises drinking alcohol together. After a time, he went into his bedroom to rest, leaving the Offender and the deceased at the table. After a time, Mr Plavsic heard raised voices. He emerged from his bedroom to find the Offender and the deceased arguing. Mr Plavsic described a physical altercation between the two men which included, at one point, the deceased grabbing the Offender by the neck in a strangling motion and, at a different point of time, the Offender entering his bedroom and returning with an item, described at the trial as nunchakus, which the Offender used in an attempt to strike the deceased.
14The primary issue at the trial agitated for the Offender, was the question whether the jury could be satisfied beyond reasonable doubt that it was the Offender who stabbed the deceased. The defence case was that it must have been Mr Plavsic, and not the Offender, who had inflicted the fatal wounds. By its verdict, the jury was satisfied beyond reasonable doubt that the Offender fatally stabbed the deceased. This conclusion involved an acceptance of the key features of Mr Plavsic's evidence that it was the Offender who stabbed the deceased.
15The verdict of manslaughter involved an acceptance by the jury that the Crown was not able to negative provocation. Put shortly, this partial defence to murder is available where the act of the Offender is the result of a loss of self-control induced by the deceased's conduct, where that conduct could have induced an ordinary person in the position of the Offender to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm.
16On the application of defence counsel, not opposed by the Crown, I left provocation to the jury upon the basis of material contained in the Offender's ERISP of 12 November 2009 and his evidence given at trial. In summing up, I summarised the material which raised provocation for consideration by the jury in the following way (paragraph 116, pages 32-33):
"... I will explain to you what it is that raises provocation in this case as an issue for your consideration. In effect, it emerges entirely from the evidence of the accused or his interview with the police given on 12 November 2009. The matters which are pointed to in the evidence are evidence of the accused asserting that Mr Darkovski grabbed him by the neck, knocking him to the ground, evidence that the deceased was said to be out of control, evidence that the deceased was said to have started a fight against the accused, evidence of the insult which the deceased is said to have made about Olga. You will perhaps remember that, that is part of the accused's evidence. The suggestion from the accused that Mr Plavsic had made a crude joke about the use of the nunchukas, the evidence of the accused that there were demands for money from him by Mr Darkovski and Mr Plavsic and that he felt this was intolerable, and his suggestion that Mr Darkovski had been 'like a terror' for him in the past asking him for money both at home and in the street."
17I do not accept the submission of Mr Brady, counsel for the Offender, that there are difficulties in explaining the jury's verdict. The jury was directed, in the usual way, that it was open to the jury to accept some, all or none of the evidence of a witness. In circumstances where Mr Plavsic was clearly affected by alcohol, as he readily conceded, it was open to the jury to accept aspects of his evidence and in particular, the memorable and dramatic fact that it was the Offender who stabbed the deceased, whilst being less confident concerning secondary aspects of his account.
18The bloodstains to the clothing of the Offender served to support the Crown case that it was he who stabbed the deceased. I accept that the jury's verdict was based upon an acceptance of the core evidence of Mr Plavsic that it was the Offender who stabbed the deceased.
19Consistent with the verdict of the jury, I am satisfied that at least some of the provocative conduct identified in the extract from the summing up (at [16] above) took place. I am satisfied that much of it occurred in the period when the Offender and the deceased were alone, and Mr Plavsic was in his room.
20The fact that Mr Plavsic did not agree that the provocative events had occurred in his presence may be explained largely in this way. By the time Mr Plavsic emerged from his room, there was a substantial and heated argument under way between the Offender and the deceased. Mr Plavsic observed events, including physical interaction between the two men. He was affected by alcohol so that, as I have said, his recall of secondary details of the argument was not clear.
21The broken window, upturned ironing board and broken table in the living room area, which was heavily bloodstained at different points, supported the Crown case that there was a violent struggle between the two men with the knife being used during the course of it.
22I am satisfied, as in my view was the jury, that the Offender obtained a knife from the kitchen, after significant acts of provocation had occurred, and that he then used that knife to stab the deceased on some five occasions. The medical evidence of Dr Van Vuuren at trial described five stab wounds to the deceased. Two stab wounds were to the side of the chest. One was to the left upper arm. A further stab wound was in the area of the left lower abdomen and the fifth was to the left side of the neck of the deceased.
23The medical evidence was that the deceased died from blood loss.
24Dr Van Vuuren described a cut to the hand of the deceased which could have been a defensive injury.
25An examination of the blood of the deceased, revealed a blood alcohol level of 0.259 grams of alcohol per 100 millilitres of blood.
26After being stabbed by the Offender, the deceased walked out the rear doorway of the premises and moved to the side of the house and onto the footpath, before staggering and collapsing in the front yard of the next-door house. He died at the scene.
27Soon after the deceased was stabbed and had left the house, the Offender asked Mr Plavsic (soon after 4.20 pm) to ring Ms Savic. Mr Plavsic told Ms Savic that the Offender wished to speak to her. The Offender said to Ms Savic "The Macedonian [the deceased] has attacked me. There's blood everywhere. Come down. Call Borsa [the Offender's sister] ".
28Some 52 seconds after the call to Ms Savic, Mr Plavsic made a "000" call, in the course of which he said that the Offender had stabbed the deceased (Exhibit P).
29It was submitted for the Offender that the jury's verdict involved a finding that the Offender had acted with intent to cause grievous bodily harm, and not intent to kill. The Crown did not advance a contrary submission on sentence. On all the evidence, I am satisfied that the Offender should be sentenced upon the basis that he intended to cause grievous bodily harm to the deceased.
30In my view, the jury had particular regard to aspects of the Offender's ERISP made on the evening of 12 November 2009, in which he said that he had been provoked by the deceased, who had used abusive and intemperate language towards him and had been aggressive towards him.
31It is noteworthy that the Offender gave a detailed account of events in that interview up to a certain point, but then said he had lost consciousness and could not say what happened.
32In his interview with police on the evening of the incident, the Offender said that the deceased was "provoking" him (Exhibit M, Q/A78). Later in the interview, he told police that the deceased and Mr Plavsic "started to provoke me" (Q/A194). Again, the Offender said the deceased "started provoking me" (Q/A206). In the next answer, he said "they continued provoking me" and "they provoked me non-stop" (Q/A207). Shortly after, the Offender was asked if he felt angry at the time, to which he replied "how would you feel if someone, you lose your job and someone provokes you" (Q/A210). The Offender repeated that he had been "provoked" that afternoon (Q/A221, 228, 236, 239, 378).
33It is clear from the interview that the Offender was well aware, soon after the fatal attack, that he had been abused and manhandled in a way that made him angry and, in his words, "provoked" him. The jury's verdict is entirely understandable. The fact that the Offender used this word repeatedly at that time would not have been lost on the jury given that, by the time the jury watched the interview again in the jury room during their deliberations, the concept of provocation had been explained in the summing up.
34In his ERISP of 12 November 2009 and his evidence before the jury, the Offender gave an account of events and the altercation with the deceased up to a point where he said he was partly strangled and then lost consciousness. Despite the Offender's detailed account of what happened up to that point, including his anger and being provoked, he said he could not recall what happened after that point. Thus, the Offender did not assert that he saw Mr Plavsic stab the deceased, nor did he deny directly that he had done so. Rather, he said that he could not recall what happened beyond a certain point, and that he considered that it was impossible that he had stabbed the deceased.
35The forensic evidence did not assist the Offender, nor would his position in the trial that he could not recall what happened after he was partly strangled by the deceased. The jury was left with a defence scenario that it was Mr Plavsic who stabbed the deceased, accompanied by non-recollection by the Offender as to what had happened, but a claim that he would not have done such a thing.
36Although I accept that the Offender was grabbed by the throat by the deceased during the melee, I do not accept that the Offender lost consciousness.
37The Crown submitted at trial that the Offender had engaged in a type of charade in advancing this account and that he well knew that he had stabbed the deceased. The Crown submitted, in any event, that even if he had forgotten what he had done, that he was guilty of the crime charged because he had stabbed the deceased with the requisite intention.
38I am satisfied that the Offender knew and was aware of, a good deal more as to what happened in the premises on the afternoon of 12 November 2009 than he disclosed to police in the ERISP and in his evidence to the jury at the trial.