R v Williams [2012] VSC 643

3 You and your victim, Sidney Thorpe, were related. Sidney's mother, Jacqueline, and your father, Colin, were first cousins. Additionally, in the 1990's you had been in a seven year long de facto relationship with Sidney's younger sister, Rowena, and together you and she had had two children. Only one now survives: Jamal, aged 14 years.

4 On the morning of 3 December 2011 a number of people arrived at the home of Diane Jones in Buffalo Avenue, Corio. Ms Jones is Sidney's maternal aunt. You and your partner of some months, Sue Proctor arrived, each of you described by some others as being already intoxicated. After leaving briefly to purchase a cask of wine, you began drinking that wine. Before you arrived, Rowena's current boyfriend had arrived and laid down to have a rest in a bedroom.

5 In the early afternoon, a group including Sidney Thorpe arrived. With him came his uncle, Joseph Jones, his cousin, Charmaine and her partner Peter, and your son Jamal together with one of his friends. Some tension had existed between you and Sidney previously. Sidney is alleged to have told Peter, upon learning you would be at the house, that you had confronted him with two knives only a week earlier.

6 Nevertheless, after some initial tension upon Sidney's arrival at the house, the two of you settled down to drinking together in the dining area of the house, and the atmosphere relaxed. But after a period of time, probably an hour or so, a verbal disagreement broke out between you. It seems to have started when Sidney said certain things to your partner, Sue, to which you took offence.

7 You removed your shirt and pushed Sidney in the chest with both of your hands. He responded by removing his shirt, and pushing you back in a similar manner. When he walked away from you, you struck him on the side of his head with your elbow. He retaliated by punching you to the face. It was then that you moved to the kitchen - situated in the same open area as the dining area - armed yourself with two knives, and approached Sidney with them. He told you to put the knife down, but you stabbed him once to the chest. He collapsed to the floor.

8 You fled the house, taking with you the partially consumed cask of wine.

9 The stabbing must have taken place before 2:30pm, for it was about that time when emergency services arrived at the house to attend Sidney in response to a call. Around 4pm that afternoon you turned up at the house of a near neighbour of Diane Jones - a person who knew you. You told her that you thought you might have killed Sidney, saying 'because of this', pointing to an injury on your mouth. You said you had stabbed him once.

10 Soon afterwards you left that house and attended a fast food outlet on Princes Highway, Corio. After ordering some food you told staff there to call the police immediately, and to 'just say Gordon Williams, they will know'. Before they could do so, a police car drove in, you waved it down and approached police, confirming your identity when asked. When asked where the knife was, you said you did not have it but asked, 'Is he dead?'

11 Later, after being arrested, you received medical attention and had four stitches inserted in the wound to your lip. Upon being questioned you said, 'Charge me with the offence. He punched up my mouth. That's why I done it ..... I'll tell you one thing, it was self defence.'

12 Mr Thorpe died as a result of the single stab to the chest. It cut the main artery to his heart. The blade of the knife - a serated edged kitchen knife - showed a blood smear nearly 10 cm along its length.

13 There are a number of features of your crime that are relevant when considering its gravity.

14 First, you used a weapon, namely a knife, in your assault on Mr Thorpe. That distinguishes your crime from others in which death results from blows inflicted by fists or kicks. But I do take into account that you inflicted only a single blow which, tragically, was sufficient to kill your victim.

15 Secondly, before stabbing him, you moved away from your victim, deliberately removed the knife from a knife-block on the kitchen bench, and then approached him again. Although I accept, judging from the photographs of the scene, and from descriptions given by witnesses, that those steps were able to be taken, and did occur, quite quickly, nevertheless they required sufficient deliberation on your part to rule out the conclusion that you acted out of complete spontaneity.

16 Thirdly, you were intoxicated at the time of the offence. Your counsel does not suggest that is a mitigating factor, but nor does the Crown suggest it was an aggravating factor of your crime. Your longstanding and habitual lifestyle of excessive alcohol consumption means it is most unlikely that you consciously chose to drink alcohol to excess well knowing the likely consequences of doing so. But for reasons that will become apparent when I detail your background, being highly intoxicated was not unusual in your case and does not reduce your responsibility. I agree that, in the circumstances of your case, your intoxication neither aggravated nor mitigated your culpability.

17 Both you and Mr Thorpe were intoxicated - he had a blood-alcohol concentration exceeding 0.34 per cent and witnesses thought that you were equally, if not more, intoxicated than he was. Perhaps, at the least, your intoxication explains, while it does not excuse, why the tensions between you and Mr Thorpe erupted and escalated beyond control.

18 Fourthly, having killed Mr Thorpe, you initially fled the scene. Although that act could be viewed as an attempt to evade responsibility for your crime, I do not think it is correct to reach that conclusion in your case. Within a few hours, you effectively turned yourself in. And the space of time between the offence and you doing so, can be explained by the time required to absorb the enormity of what you had just done, coupled with the effects of intoxication upon your judgment.

19 Fifthly, I also take into account the fact that the killing of Mr Thorpe took place in the context of some animosity between the two of you, and was immediately preceded by a physical fight involving blows being inflicted upon one another.

20 Finally, I have listened to and taken account of the victim impact statements read to the court. They attest to the misery and suffering brought to the family and community of Mr Thorpe, which will reverberate for the lifetimes of those affected. He was only 32 at the time of his death. You not only stole his life, but you robbed those who loved him of his presence.

21 The offence of manslaughter for which you have pleaded guilty, was one committed by an unlawful and dangerous act. All such offences are, by their nature, very serious. Having regard to all of these factors, and without in any way diminishing the seriousness of your offending and its consequences, I regard the gravity of your crime of manslaughter as one that is neither among the worst examples of the crime, but nor is it among the less serious.

22 In my view, the most significant issue in assessing your culpability and degree of responsibility - especially when considering the application of the sentencing purposes of punishment, deterrence and rehabilitation to your case - is how to properly take into account your disadvantaged upbringing. First I should put that in context.

23 An indigenous Australian, you were born in April 1974 and grew up in the district around Wilcannia in New South Wales. You were the youngest of the five children your mother had with your father. But she had five children to a previous partner, making you the youngest of her ten children. After your natural father died when you were quite young, another man, William Clark, formed a relationship with your mother and became your stepfather. Evidently he was a man prone to violence, and abused alcohol and drugs. You suffered physically at his hands and grew up in a culture of violence, alcohol and drug use. He later killed your mother and himself died in jail.

24 Your schooling was ineffective. You regularly failed to attend school and left in Year 7 without learning to read or write. Recent psychological testing places you in an impaired or mildly intellectually disabled category, with general intellectual capacity in the lowest two per cent of the population.

25 At age 12 you began sniffing petrol, often to the point of losing consciousness, and you continued that practice until you were about 18. You moved from Wilcannia to Dareton at about the age of 17 and, soon after, began abusing marijuana, then later amphetamines and heroin. Your lifestyle ever since has been a transient one. The little work that you have performed has been of an unskilled nature; otherwise you have eked out your existence camping and fishing and moving from place to place; all the while, abusing alcohol and other substances.

26 The most stable time of your life was while you were partnered with a lady, Lyndell, with whom you had a relationship for about 4 years. With her you had three children now aged between two and five years. You also have a 17 year old daughter by another relationship, and Jamal whom I mentioned earlier. You had little in the way of family support before the event; as a result of it, any meaningful connections within Victoria have been severed. It is unlikely that any remnant of family network you have in New South Wales will be of any practical solace to you in the coming years.

27 Your prior convictions reflect the lifestyle I have outlined. There are many. Although not taken into account against you for sentencing purposes, I am informed that you had the first of a number of Children's Court appearances at the age of 14. In adult life, court appearances and convictions begin in Wilcannia in 1994 (when you were aged 20), and extend through to May 2009. All appearances were in New South Wales country towns or the Victorian border town of Mildura. In all, there are around 25 court appearances involving well over 100 separate offences. Charges include driving offences, with numerous for driving when disqualified and having high alcohol readings; theft; malicious damage; assaults occasioning actual bodily harm; assaulting police; and so on. Many of your offences are associated with alcohol related offences, consistent with your transient, alcohol-fuelled lifestyle.

28 On any view, yours has been a life of disadvantage and deprivation compared to that of the bulk of the Australian community.

29 It has not been argued, correctly in my view, that your Aboriginality, on its own, is a factor that should have any bearing upon the sentence I should impose. That is, there is nothing in relation to the offence, or the circumstances giving rise to it, that is peculiarly referrable to your Aboriginality. Rather, Mr Hallowes contended, consistently with the principles set out in DPP v Terrick,[1] that I can and should have regard to your dysfunctional and disadvantaged upbringing when assessing your culpability for your crime. More specifically, he submitted that because of your disadvantaged background, you were not in as good a position as those with less disadvantage, to make sound judgments and foresee the consequences of your actions.

30 The law is that the relative weight to be given to circumstances of disadvantage or deprivation will depend on the nature and extent of disadvantage, the link between that disadvantage and the offence, and the importance of the sentencing purposes of deterrence, community protection and rehabilitation as considerations in the particular case.[2] If such personal circumstances are to mitigate the sentence, they generally do so by moderating the need to deter other would-be offenders or the need to mark the court's denunciation of the offence. Or those personal circumstances may bear upon rehabilitation prospects. But where an offender has prior convictions, as you do, the sentencing considerations of deterrence, denunciation and community protection may acquire greater prominence at the expense of taking into account any personal circumstances that might otherwise reduce moral culpability.[3]

31 In addition to your disadvantaged upbringing, Mr Hallowes also urged that I should look more favourably on your moral culpability, and moderate the pursuit of general and specific deterrence, because of your intellectual disability, based upon the principles in Verdins' case.[4]

32 The factual basis for that submission was found in the reports of Ms Carla Lechner, psychologist, and Ms Isabella Walters, clinical neuropsychologist, each of whom assessed you for sentencing purposes. Each found a level of intellectual disability to which I have already referred. Ms Walters was specifically asked to test whether you suffer from an acquired brain injury resulting from sniffing petrol or other events in your past. She concluded that, despite having significant risk factors, you have no significant brain injury. Nevertheless she expressed this opinion:

Mr Williams' intellectual disability means that his ability to exercise appropriate judgment, to make rational choices and to think clearly is limited and below that considered normal in the general population. I also note that low verbal skills limit his options for verbally resolving conflicts. However, while these factors may have contributed to his offending, I believe that psychoactive substances and anger played a much more significant part in his behaviour.[5]

33 The Crown did not dispute that the particular principles in Verdins' case to which Mr Hallowes referred, apply in your case. However, it contends that the language employed in Mr Hallowes' written submissions appropriately reflect the extent to which your intellectual disability should moderate relevant sentencing purposes. That is:

• your intellectual disability 'reduces moral culpability ... albeit not to a great extent', and
• that 'moderation of both general deterrence and specific deterrence ... will not be substantial'.

34 It can therefore be seen that arguments have been put forward on your behalf for the reduction of your moral culpability, and the moderation of the need to deter you and others from similar offending, because of your generally disadvantaged upbringing and your intellectual disability. In each case it is necessary to consider the nature and severity of your disadvantage and disability, the roles they each played in your offending, and the extent to which other factors might require the sentencing purpose of deterrence, denunciation and community protection to remain most prominent.

35 The extent of your social and developmental disadvantage is, in my view, significant. On the other hand, your intellectual disability, while real and by no means to be disregarded, is not of a profound nature. The individual and combined effect of those personal characteristics is likely to have diminished your ability to think clearly, to foresee the consequence of your actions, and to make rational choices, compared with most others in the community. In other words, those background and personal circumstances probably played some role in the commission of the offence.

36 But your long history of habitual alcohol and drug use, and of offending, means that denunciation and community protection must remain prominent considerations. Perhaps, too, so should general and specific deterrence. But in that regard, I do wonder about the implied assumption that the length of the prison term that I impose upon you will have an effective deterrent effect, either upon you or other members of the community, against engaging in conduct that not uncommonly proceeds from a seriously deprived background and a lifestyle of substance abuse.

37 As for the prospects of rehabilitation, at your current age of 38 and against the personal history I have just summarised, I agree with the tenor of the submissions by both counsel that those prospects should be regarded, at best, as 'guarded'. I hold that view notwithstanding there being some evidence that you are remorseful, as I will mention shortly.

38 In the end, the submissions of both the Crown and your own counsel were quite closely aligned. I agree that any sentence I impose should, to a modest but discernible extent, take account of the mitigating considerations of your disadvantaged upbringing and your intellectual disability.

39 Finally, I turn to consider your plea of guilty to the offence of manslaughter and any evidence of remorse.

40 I accept that, while you did not immediately plead guilty to the offence with which you were charged, you did plead guilty at a relatively early stage. There is some evidence that you are remorseful for having killed Mr Thorpe. Ms Lechner said she was unable to explore the issue of remorse and victim empathy, largely because of your reluctance to talk about the incident. Ms Walters says that, while you did not talk much, you did express remorse about the death of Mr Thorpe. Also, in your own words, although you ran away at first, you decided you should take responsibility for the death. She was of the view you seemed to be deeply affected by the events and that you believed you ought to be punished for what you did. Based upon the interview and her own observations it was Ms Walters' opinion that you were remorseful about your actions.

41 Correctly, in my view, Mr Hallowes did not suggest that your remorse was either complete or overwhelming. And the value of such remorse as you have demonstrated, as a sentencing factor in your favour, is reduced to some extent by the strength of the Crown case absent your plea. The Crown did not dispute that there was some evidence of remorse but pointed towards your conduct immediately after the offence as demonstrating some failure to accept responsibility for what you had done. For the reasons I have already indicated, I believe that conduct can be understood as an immediate reaction to the event without significantly detracting from your later acceptance of responsibility and turning yourself in.

42 So in addition to the utilitarian benefit to which you are entitled for your plea of guilty, some additional, albeit limited, allowance should be made in recognition of your remorse.

43 The maximum sentence for the offence of manslaughter is 20 years imprisonment. I have reviewed the statistical analysis published by the Sentencing Advisory Council,[6] including the median and average sentences for manslaughter, and median and average non-parole periods. I have also had regard to a number of cases, some of which were referred to by counsel, which offer some guidance to current sentencing practices. The Crown submitted that the appropriate range of imprisonment for your crime, in all the circumstances, is between eight and ten years as a head sentence, and between six and eight years before being eligible for parole. As will be seen, I consider that the appropriate sentence in your case to be at the lower end of the ranges the Crown has suggested.

44 Having regard to all of the matters to which I have referred, I think that the sentencing purposes of punishment, denunciation, community protection and, to a lesser extent, deterrence (both specific and general) are of particular relevance in formulating your sentence. And although all of the factors I have discussed apply to the fixing of an appropriate head sentence and non-parole period, the consideration of community protection in particular has influenced my decision to impose a slightly longer non-parole period than I might otherwise have imposed.

45 Gordon Lindsay Williams, for the manslaughter of Sidney Thomas Thorpe, I sentence you to 8 years' imprisonment. I order that you serve 6½ years imprisonment before being eligible for parole.

46 But for your plea of guilty I would have sentenced you to 10 years' imprisonment, with a non-parole period of 8 years.

47 Pursuant to s 18(4) of the Sentencing Act 1991 I declare that you have already served 384 days of pre-sentence detention, not including today, and I direct that the fact that this declaration was made, and its details, be noted in the records of the court.

[1] [2009] VSCA 220; (2009) 24 VR 457, 468-469.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276: Mr Hallowes specifically relied upon the first, third and fourth principles at [32].

[6] Sentencing Advisory Council, Snapshot: Manslaughter, May 2011, No. 110 (Sentencing Advisory Council, 2011).