R v Woodburn [2002] VSC 72

Supreme Court of Victoria|2002-03-22|Before: Bongiorno J

Criminal Law - Sentencing - Manslaughter - Unlawful and dangerous act - Youthful offender - Youth training order.

Kirstie Anne Woodburn, you have pleaded guilty to one count of manslaughter arising out of the death of Michelle Anne Clarke in Mildura on 24 September 2000. You had originally been charged with murder but, quite properly, having regard to all the circumstances of the case the Crown has accepted your plea of guilty to manslaughter for which offence it is now my duty to sentence you according to law.

You were born on 21 September 1982 so that at the time you committed this offence you were just a few days past your eighteenth birthday. You were unemployed, aimless, bored and apparently devoid of any worthwhile ambition or prospect of realistic advancement in life. Not surprisingly this existence had been preceded by an unsatisfactory school record, conflict with your parents and other authority figures and the gradual development of a generally anti-social attitude, reflected in one brush with the law earlier in the year 2000 involving drunkenness, theft of a motor vehicle and damage to property which resulted in your being placed on a community based order which you subsequently breached.

The life which you have led, as I have described it, lacked any form of intellectual, social or recreational stimulation. For recreation you turned to drugs: mainly alcohol in the form of cheap white cask wine. It seems that most of your waking hours were spent with other young people of similar disposition drinking and aimlessly moving from one site to another in the Mildura area.

At the time of this offence you were in receipt of social security payments, associated with which was assistance provided by the social welfare agency Centacare which sought to assist you with employment or training if you were prepared to co-operate in this regard. Your Centacare youth worker described your situation immediately prior to this offence as one which made you very unhappy. You hated the community work to which you had been sentenced in respect of the offence to which I have referred. You were tired of always being involved in fighting and wanted to start afresh somewhere else.

It appears that although you realised the futility and hopelessness of your then existence you had neither the capacity nor, indeed, the necessary motivation to do anything about it. You described to your youth worker a conflict which you and some of your friends had had with other young people you described as "boongarigines"; a term apparently of local origin and derogatory meaning. Your youth worker was concerned for your welfare, mainly because of your inability to deal with the conflict you described other than by resorting to violence, including violence with weapons, in circumstances where you appeared to lack any insight whatsoever into the damage you could cause by using such weapons on another person.

You knew Michelle Clarke as being another young person who lived in the Mildura area. She was commonly referred to as "Menindee", probably because she came from the Menindee area of New South Wales. It was by this name that you knew her. There had been a history of animosity between the two of you which was evident to various witnesses whose statements appear in the depositions in this case, even if many of them are contradictory as to the extent of this conflict and the form it took. This conflict led to an altercation between you and the deceased on Friday 22 September 2000 at a Mildura entertainment venue known as "the Rowers". In the course of that altercation it appears that you were punched by the deceased who later ran away. A number of witnesses attest to your having made serious threats to the deceased subsequent to this conflict to the extent that you asked one of the people you were with for a knife.

The following night, Saturday 23 September, you had been drinking cask moselle with some other female companions. You all went into the centre of Mildura to the Coles supermarket where one of them stole a knife. Whether this was on her own initiative or at your request I am unable to say. She gave that knife to you and you put it inside your trousers as you and the others were walking in the vicinity of Eighth Street. It was whilst you were walking along Eighth Street towards a flat in Walnut Avenue some time shortly after midnight that the deceased approached the group you were in from behind. She pushed you, causing you to fall to the ground. You got up and with one arm movement you struck the deceased once to the chest. At the time you did this you were holding the knife that had been stolen from the Coles supermarket. In what must be considered a chance occurrence having regard to the way in which you struck the deceased, the knife with which you stabbed the deceased pierced the left ventricle of her heart, thus fatally wounding her. She died at the scene of this conflict very soon afterwards.

After the event which I have described you fled in a motor car. The knife was taken by a male friend who disposed of it.

You were subsequently arrested at your parents' home and when questioned by the police maintained that you had acted in self defence in that you thought that the deceased was holding something in her hand. In fact she was not.

The Crown accepted your plea of guilty to manslaughter on the basis that at the time you struck the deceased you performed an unlawful and dangerous act, without murderous intent, with the consequence that the deceased died. It was apparently accepted that your threats against the deceased in the period immediately prior to her death were acts of empty bravado rather than statements of actual intention. Having read the evidentiary material which would have been available had you stood trial I agree with that assessment.

After your arrest and interrogation you remained in custody for about five weeks before you were bailed by order of this Court. There were conditions of your bail to the effect that you were to abstain from alcohol and reside with your parents. To render these conditions more easily met your parents decided to shift to Bendigo to remove you from the influences to which you had been subject at the time you committed this offence. It appears that whilst you were living in Bendigo you engaged in desultory employment-like activities knowing, however, that the probability of a custodial sentence in respect of this offence hung over your head to be imposed after you were arraigned. Even if you had otherwise been inclined to seek some form of gainful activity that fact alone would probably explain your unwillingness or inability to do so. The evidence is, however, that you abstained from alcohol during the period you were on bail as your bail condition required.

Your mother, who gave evidence before me, spoke of your difficult childhood, your truculence and your drift into what must be described as early alcoholism. In the way that mothers do, yours optimistically believed that you were going to sort your life out and were on an improvement track at the time this offence occurred. Whilst I doubt that an objective observer would have shared your mother's optimism you are fortunate that your parents have supported you and are continuing to do so. Similarly, your uncle, Graham Gniel, gave evidence of having supported you both whilst you were on remand and subsequently whilst you were living with your parents. He frankly described your problems and offered to continue to be of assistance to you when you are again able to live in the community.

On 1 December last year you were examined by Dr Lester Walton, consultant forensic psychiatrist. He noted that you had no previous psychiatric history but that your alcohol abuse had led to gastric ulceration requiring medical treatment.

His assessment of your personality, outlook on life and general disposition coincides with that which I have already described. Pointedly, he reports that when he asked you about your future you replied "I don't have one".

Dr Walton's conclusion was that you were a strikingly immature 19 year old who was alcohol dependant but who appeared to have achieved a sustained state of sobriety. He considered that you needed to undergo further alcohol education and rehabilitation but that you might be resistant to this course even if it was offered to you. He thought that you had a somewhat under-developed capacity for the expression of remorse, reflecting the fact that you consider yourself to have been victimised by the deceased preceding the incident in which she was killed but which is also consistent with your general psychological immaturity. He notes the support you have had from your parents and concludes by offering the opinion that you have no mental illness but might properly be described as having fairly major psychological problems in relation to your personality and history of substance abuse.

On 18 January this year you were assessed by the Department of Human Services to determine your suitability for a youth training order. You will recall that I ordered this assessment whilst telling you that the crime with which you were charged and to which you had pleaded guilty would normally demand a substantial gaol sentence. That report is positive in its recommendation and its assessment of you as being suitable for detention in a senior youth training centre.

It is difficult to determine whether you have demonstrated any real remorse in respect of the death of Michelle Clarke. You have pleaded guilty to manslaughter which, in itself, is not insignificant. Of course, that plea may do no more than reflect the realities of the situation in which you found yourself. Nevertheless I am required by law to take it into account and I do so.

In sentencing you I am required to take into account your youth. Indeed, that fact must be a primary consideration in determining the sentence to be imposed. Rehabilitation of someone as young as you is usually far more important than any question of general deterrence. Such rehabilitation benefits the community as well as the offender.

Further, I am required to consider whether I am able, in the circumstances, to impose a sentence which avoids your being sent to an adult prison. Your counsel specifically submitted that I ought, in this case, impose a youth training order. The prosecutor did not oppose such a course. He informed the Court that he had been specifically instructed by the Director of Public Prosecutions that it was his view that a youth training order would not be inappropriate in your case.

The offence for which you are being sentenced is a very serious one. It involved the destruction of another human life. That human life was precious. It is a primary function of the state to preserve and protect human life so far as possible. The criminal law of homicide exists for that very purpose. In this case the victim impact statements which I have read from Michelle Clarke's closest relatives powerfully attest to the love which they had for this young girl whose life you took. She will never have the opportunity of achieving the potential which was within her. Her relatives and friends have been deprived of her love and friendship. To some extent such considerations are beside the point, as it would make no difference if the person you killed was, unlike Michelle, unloved or unmourned. It is fundamental to any system of justice in a civilised society that all human life is given equal protection under the law.

The law cannot bring Michelle Clarke back. However, it can do its best to try to ensure that the tragedy which was her death is not repeated. It must ensure that you will learn a salutary lesson in social responsibility such that you will decide to order your life in such a way in the future as to make a contribution to society rather than to detract from it. Unless you make that decision not only will society be the worse but you, yourself, will again find yourself being dealt with by courts for further infractions of the criminal law. In the final analysis the choice is yours to either take such opportunity as you are about to be given or to reject it. If you choose the former you will be able to become a useful and valued member of society. If you choose the latter your life will be ordered by the law. Courts, police stations and prisons will become you environment; criminals will be your companions.

The law makes it clear that society is best served in the case of young offenders by their rehabilitation. I believe that in your case there are reasonable prospects for your rehabilitation as attested by the witnesses to whom I have referred. You are clearly impressionable and immature and it is undesirable that you serve your sentence in an adult prison. Accordingly, taking into account the nature of the offence which you have committed and your age, character and past history I am prepared to accede to your counsel's submission and sentence you to a period of detention in a youth training centre. This is a very merciful disposition in your case. It is to be hoped that the aims of a youth training order will be fulfilled and that you really will benefit from the mercy now shown to you by this Court such that you will not offend again.

After you were arrested in September 2000 you spent some five weeks on remand. Since pleading guilty before me in Mildura on 14 January of this year you have spent a further 9 weeks in custody. Each period of custody was in an adult prison. The law normally requires that those periods be taken into account as periods of detention already served in respect of a sentence to be imposed. However a sentencing court has a discretion to order otherwise. This discretion has been exercised on other occasions either where the maximum sentence of detention in a youth training centre is seen to be inadequate to reflect the gravity of the offence in respect of which the sentence is imposed or there is some other good reason for making such an order. The maximum period for which I can order your detention in a youth training centre is three years. Having regard, particularly, to the seriousness of the offence for which you are being sentenced I consider justice will be better served in this case if you undergo the whole of that sentence rather than have it reduced by the period of detention you have already served. In all the circumstances I have decided that you should serve your period of detention in a youth training centre without any reduction in that period by reason of the detention you have already undergone.

The sentence of the Court is that you be detained in a youth training centre for a period of three years. It is further ordered pursuant to s 35(1) Sentencing Act 1991 that the periods of time during which you have been held in custody in relation to the offence for which you are now sentenced be not reckoned as periods of detention already served under the sentence now imposed.

At a glance

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Before

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Judgment (26 paragraphs)

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