Regina v Ronnie Phillip Lovett

SOLICITORS : Ms Karen Vaughan - Department of Public Prosecutions Ms Chayana Miers - Australian Criminal Law Specialists

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: Upon his trial for murder the offender, Ronnie Phillip Lovett, was found guilty of the manslaughter on 10 August 2008 of George Asprogiannis. The offender, then aged 21 years, had been in a domestic relationship of several years' standing with Patricia Bloomfield-Gibbs. There were four children of that relationship. Until two or three weeks before the events giving rise to the charge of murder, he and Ms Bloomfield-Gibbs and the two youngest children, a boy of 3 years and a girl of 18 months, whom I shall call S and T respectively, were living in a house in a town in New South Wales. The offender and Ms Bloomfield-Gibbs had argued and separated a number of times during the relationship but had always resumed it. Another separation began about two or three weeks before 10 August 2008. The offender went to live with his mother and her husband at their house, about 20 minutes' walk away. Both the offender and Ms Bloomfield-Gibbs had been users of opiates and had entered upon a methadone program by which they had to attend a daily clinic. During the separation they attended the clinic together, and were usually taken there by the offender's mother or her husband. As well as that they had mutual obligations over the children. Ms Bloomfield-Gibbs wanted the offender to move back into the house with her and the two youngest children. I am satisfied that that was because she still loved him. I think also that the offender continued to have a strong regard for Ms Bloomfield-Gibbs. He regarded the house where she and the children continued to live as his. He told the Court, though mistakenly, that he was named on the lease. I am satisfied that strong bonds remained between the offender and Ms Bloomfield-Gibbs notwithstanding their separation. 2 During the period I have mentioned, a neighbour introduced Ms Bloomfield-Gibbs to the deceased. They became friendly. The deceased and his nephew, a young person known to Ms Bloomfield-Gibbs and the offender, began visiting Ms Bloomfield-Gibbs. On 10 August 2008, during a visit to the clinic, the offender found out about it. At about 06.00pm that day he went to the house to collect S, who was by a previous arrangement between him and Ms Bloomfield-Gibbs to go and live with him at his mother's house. When the offender arrived, the deceased and his nephew were present with Ms Bloomfield-Gibbs. They were drinking spirits and smoking marijuana. I am satisfied that what the offender then and there saw and heard, added to the discovery he had made earlier in the day at the clinic, led him to suspect that the deceased was moving to supplant him in the affections of Ms Bloomfield-Gibbs. That, I think, was partly as a result of the apparently false statement of the deceased that he was not trying to "cut (the offender's) grass", meaning, commence sexual relations with Ms Bloomfield-Gibbs. The offender responded to that statement by saying that the deceased had better not be. I am satisfied that he threatened to return and fight the deceased. 3 The offender took S and returned to his mother's house. He had thoughts of taking T as well, though it is by no means clear that Ms Bloomfield-Gibbs would have agreed to that. He raised the matter with his mother and her husband but they were cool about the idea. At about 10.00pm the offender left his mother's house without telling her or her husband and walked to Ms Bloomfield-Gibbs's house. I am satisfied that he took with him a knife which he had removed from under the kitchen sink at his mother's house. I accept the evidence of Ms Bloomfield-Gibbs that she did not remove the knife. Having walked to Ms Bloomfield-Gibbs's house, the offender went inside. The deceased and Ms Bloomfield-Gibbs were having sexual intercourse. I am satisfied beyond reasonable doubt that, moved by what confronted him, the offender struck the deceased a single blow with the knife. The knife penetrated the deceased's chest and killed him. The offender also set about the deceased with a garden stake. He kicked him in the genitals. He dragged him out of the house feet first and onto the lawn. He kicked him so hard in the jaw that he fractured his jawbone in two places. At the conclusion of the attack he told the deceased that that was what he got for having intercourse with his woman. The deceased may have died before the attack came to an end, though the evidence is unclear about that.

4 Straight away after killing the deceased the offender began telling the people who were gathered about that the deceased had attacked him with a knife and that he had acted in self-defence. He told this to the police and added that he had been attacked in his home and had had thoughts for his family. 5 The offender was arrested and taken to the police station. During his detention police applied for a warrant authorising them to continue to detain him as part of the investigation process. During that application the offender spoke to a magistrate, saying that it was "kill or be killed". 6 The offender gave evidence at trial. He said that he had gone to Ms Bloomfield's house to collect his young daughter. He said that he did not take the knife. He said that although he had deliberately punched the deceased in the face and hit him with the stake and kicked him, he had not intentionally stabbed him. He said that the deceased had come at him with the knife and that he had grappled with him to protect himself. In the struggle they had fallen onto a bed and the knife had penetrated the deceased. It was an accident. 7 The Crown case was that the offender was guilty of murder, having intentionally stabbed the deceased in the chest with the intention at least of doing grievous bodily harm. Accident, self defence and provocation were all issues for the jury. If it had appeared reasonably possible to the jury that the knife had entered the deceased's chest by accident, as described by the offender in his evidence, he would have been entitled to an acquittal. The verdict shows that there was no reasonable possibility that his account was true, at least insofar as it dealt with the provenance and use of the knife. 8 On the evidence, there were three permissible processes of reasoning by which the offender might be found not guilty of murder but guilty of manslaughter. I may dispose of two of them. The first, by excessive self-defence, is not available because the offender took the knife to the place where he expected the deceased to be, intending to use it if appropriate. Swabs taken from the knife handle showed the presence of DNA which could have been a mixture contributed to by the deceased and Ms Bloomfield-Gibbs, but that to my mind is sufficiently explained by the fact that the knife was left on the futon where the deceased and Ms Bloomfield-Gibbs had been having sexual intercourse. No DNA matching the accused's was found on the knife handle, but that does not prove that he did not handle the knife. I disbelieve the offender's evidence that the deceased attacked him with the knife. I am satisfied beyond reasonable doubt that the offender attacked the deceased with the knife. 9 The second basis of manslaughter which may be rejected is manslaughter by an unlawful and dangerous act. That would apply only if the Crown had not proved an intent to do grievous bodily harm. I am satisfied beyond reasonable doubt that that was the offender's intent. 10 The only remaining formulation of manslaughter on the facts of this case is manslaughter by provocation. I am satisfied that the accused first suspected and then realised that the deceased had designs on Ms Bloomfield-Gibbs. I am satisfied that he took the knife in case he should need it when dealing with the deceased. I think that it was when he came upon them having sexual intercourse that he decided to use the knife. He struck a single knife blow but continued as though the deceased were still alive, carrying out his attack in various ways.

11 In my opinion the things that had happened earlier in the day, while they were enough to make the offender suspect that the deceased and Ms Bloomfield-Gibbs might be having sexual relations, were only mildly provocative, if they were provocative at all. I do not think that the offender went to the house because of any loss of self-control. He went there after due consideration, intending to exact some kind of retribution on the deceased. The reality of what suddenly confronted the offender when he entered the house, on the other hand, must have been surprising, notwithstanding his suspicions, and in my opinion that was when he lost his self-control. The verdict shows that an ordinary person in his position could have been provoked to form the intent that he formed. 12 The offender was born on 9 January 1987. He is the only child of his mother, who migrated to Australia from the Philippines, and his father, a man of Aboriginal descent. They separated when he was very young and he lived with his mother for a few years and then his father. His father was involved in sporting activities and encouraged the offender to become involved as well. When he was 12 years old the offender returned to live with his mother. His relationship with Ms Bloomfield-Gibbs began when he was 14 years old and their first child was born within a year. The couple returned to live with the offender's father and the offender was intending to pursue what was said to be a promising football career. However, his plans came undone when he sustained a severe knee injury. He and Ms Bloomfield-Gibbs moved again and appear after that to have lived alternately at or near the residences of both parents. 13 After he gave up his hopes of pursuing a sporting career, the offender and Ms Bloomfield-Gibbs began to use marijuana and then heroin. In 2007 the offender became formal carer of his father, who had fallen seriously ill. He and Ms Bloomfield-Gibbs developed a dependency on cannabis and heroin. The offender's father died in 2009. 14 The offender's behaviour began to be noticed by the courts when he was 14 years old. During 2001 his bullying behaviour at home towards a person described as his sister, who was perhaps his half sister, resulted in the making of an apprehended domestic violence order. He contravened that order by threatening her and was ordered to serve 100 hours of community service work. A few months later he assaulted her and was ordered to serve 100 more hours' work. He failed to meet his obligations under the community service orders, was called up and on each ordered to undergo 12 months' supervision by the Department of Juvenile Justice. 15 Later in the same year he was found to have used offensive language and was fined $50.00. He was convicted of stealing from the person and was ordered to perform 100 hours of community service work. He did not do so and when called up was ordered to undergo 12 months' supervision. 16 The deceased is not the first person to have had his jaw broken by the retributive act of the offender. In November 2001 a fellow pupil at the offender's school reported him for theft. The offender dealt with him by violently assaulting him. On charges of maliciously inflicting grievous bodily harm and causing injury to a potential witness he was ordered to serve two periods each of 100 hours' community service. As before, he breached the orders and when called up was ordered to undergo 12 months' supervision. 17 Later in the same month he was dealt with for larceny and ordered to do 100 hours work. He breached the order and was called up. 18 In April 2003 he was dealt with for assault occasioning actual bodily harm and was ordered to undergo 12 months' supervision. In the same month he was fined for destroying or damaging property and possessing a prohibited drug. 19 In November 2003 he was ordered to undergo 12 months' supervision for destroying or damaging property. In May 2004 he was convicted of stealing from the person and stealing in a dwelling house and was made subject to control orders, each of one month. 20 In May 2004 he was ordered to undergo 12 months' supervision for escaping from police custody. 21 In May 2005 he assaulted Ms Bloomfield-Gibbs and was ordered to undergo two years' supervision. In October 2007 he again assaulted Ms Bloomfield-Gibbs and was ordered to undergo 200 hours' community service. The assault on that occasion was a nasty one. The offender put his hands around Ms Bloomfield-Gibbs' neck and she, who was pregnant at the time, was put in considerable fear for her own safety. 22 In December 2007 the offender was convicted of four counts of obtaining money by deception and was ordered to serve a number of periods each of 100 hours' community service. He was rendered unable to perform that service by his arrest on the present charge on 10 August 2008 and after being called up he was sentenced on each charge to imprisonment for a term of 12 months with a non-parole period of 8 months. Those non-parole periods expired on 9 April 2009. The head sentences expired on 9 August 2009.

23 The offender consulted a clinical psychologist, Mr Terry Smith, not for treatment or advice but for the purposes of a report to be made to this Court. As a result, Mr Smith's psychological assessment of 12 December 2009 came into evidence. Mr Smith did not test the offender and recorded uncritically much of what the offender had told him. The history he gave Mr Smith dealt inadequately with the details of his offences. Mr Smith did not identify any psychiatric or psychological illness or suggest any need for counselling or treatment. 24 The offender told Mr Smith that he had ceased abusing drugs. In recounting the history of his problems I thought that he emphasised Ms Bloomfield-Gibbs' addiction and conduct and played down his own part in their undoubted mutual problems and disputes. 25 Mr Smith repeated the offender's expression of sorrow for the family of Mr Asprogiannis at their loss of the deceased. However, the offender maintained to Mr Smith the assertion that the stabbing was an accident, a version inconsistent with the verdict. The offender gave evidence before me and repeated his assertions that he felt sorry for the family of the deceased and that the stabbing was an accident. However, in view of his continued denial of criminal responsibility I do not regard that as evidence of remorse. I doubt whether he is sorry.

26 This was an offence committed consequent upon the offender's entry into the dwelling of Ms Bloomfield-Gibbs. While it may be said that the offender continued to have feelings for Ms Bloomfield-Gibbs and may have contemplated setting up house with her once again, he was not residing with her at that time and had not done so for two or three weeks. He had no lawful business to be at her house. I reject his assertion that he went there to collect the youngest child. He went there to tackle the deceased. He knew that he would not be welcome and his entry at that time of night was unlawful. Those are matters calling for a strongly deterrent sentence. So does the fact that he did his business with a knife. So does the fact that after he had disabled the deceased, who was probably then not far from death, the offender gratuitously and cruelly continued his attack with the garden stake and by kicking the deceased. Counsel on both sides submitted that I should entertain a reasonable doubt whether the offender intended to kill. In the end I have done so, but I record that this case was a very serious one of its kind.

27 The offender gave evidence at trial and on sentence, and his manner of dealing with questions, interrupting and talking over the questioner, confirmed what his record of offending shows, that he has a strong, bullying personality and tries to dominate people. 28 So far as his association with drugs is concerned, the offender's future is quite unclear. I do not accept that he is finished with them. He will need much assistance if he is to turn away from them altogether. 29 He seems never to have carried though successfully any of the work orders of which he has been given the benefit. He seems to have breached most if not all of them. He has continually offended while bound to behave himself. He has not responded to repeated periods of supervision. When he committed the present offence he was on conditional liberty, subject to community service orders and on remand for the breach of bonds.

30 The only encouraging sign is the strong support the offender's mother gives him. She has attended Court throughout these proceedings. She cares for the three eldest children and it seems that the youngest will probably go to her as well. I expect that when the offender is released he will be able to return to her and the children. 31 Overall, I do not think that his prospects of rehabilitation are good. 32 It was submitted by Mr Newton, for the offender, that the portion of the sentence available for release to parole should be varied at the expense of the non-parole period on account of the offender's age, of the fact that this would be effectively his first period of full time custody and because of his need of assistance in turning away from the use of illegal drugs. 33 I do not think that I should set a balance of the term of the sentence that exceeds one third of the non-parole period, however. It is impossible to estimate how long the offender is likely to need to come to grips with his liking for illegal drugs, and that time may be longer than could be provided for in any sentence I could fashion. I have had regard also to the need to set a non-parole period that reflects the objective seriousness of this offence. 34 In all the circumstances I am unable to find that he is unlikely to reoffend. 35 The offender's re-sentencing for the four counts of obtaining money by deception was an indirect but inevitable result of his arrest for the present offence. But for this offence it seems unlikely that he would have been ordered to serve full time custody for the former offences. I therefore propose to regard him as having been in custody only on the manslaughter charge from the date of his arrest on that charge. I shall order his sentence to have commenced on 10 August 2008. 36 A victim impact statement was read to the Court on behalf of Mr George Asprogiannis senior, the father of the deceased. His mother, Ms Kim Trindall read her own statement. Those statements show how hard the death of George Asprogiannis has been for his parents and how much they have suffered and continue to suffer in their loss. The sympathy of the Court goes out to them in their grief.

37 Ronnie Phillip Lovett, for the manslaughter of George Asprogiannis I sentence you to imprisonment. I set a non-parole period of eight years, which will be taken to have commenced on 10 August 2008 and which will expire on 9 August 2016. You will then become eligible for release to parole. I set a balance of the term of your sentence of two years and eight months, expiring on 9 April 2019.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.