The Queen v Howard [2014] VSC 194

2 On Friday 24 February 2012, your daughter Samantha's partner, Jamie Morgan, had been arrested by police and placed in custody. A number of weeks earlier, Morgan had been living at the house of the deceased, Matthew Schmidt, and his wife, Karen, in Ambon Street, Preston. Upon Morgan's arrest, Karen Schmidt wanted Samantha to collect his belongings which he had left behind at their house.

3 Samantha attended the Schmidt's house at about 5.00pm that afternoon. An argument arose between them concerning the arrest of Morgan and the circumstances surrounding it. In the course of the fracas that followed, Karen Schmidt struck Samantha in the face. Matthew Schmidt also struck her to the face and continued assaulting her, pushing her backwards out of the rear door of the Ambon Street house into a carport area. Matthew Schmidt continued to beat her, as a result of which she sustained a black eye and several bruises to her back. It was apparent that Matthew Schmidt was in a fierce temper.

4 During the assault, Samantha had dropped her red purse onto the kitchen floor, together with some other papers, including a copy of the search warrant the police had used when arresting Morgan, and some other documents. She managed to leave.

5 It seems that Samantha informed you of what had occurred and that she wanted to return to the Ambon Street house to collect her purse and documents. She needed the documents to visit Morgan in gaol. You agreed to help her retrieve her things.

6 At about 11.30am the next day, Saturday 25 February 2012, you arrived at Ambon Street accompanying Samantha. Fatefully, you were armed with a loaded pistol. You parked your car on or near the driveway of the house.

7 Initially, you called out to Karen Schmidt to the effect, "Karen, are you there?" Shortly after, Karen Schmidt appeared from behind the metal gates a little way up the elevated driveway, beside the house, separating the front yard from the rear. She placed Samantha's purse on the bonnet of a car sitting in the driveway in front of the metal gates, told you to leave and went back inside.

8 Shortly after that, Matthew Schmidt emerged from behind the metal gates and approached you. You and Samantha were standing somewhere on the driveway. There was much shouting and yelling between you and Matthew Schmidt. A single gunshot was heard. Karen Schmidt came back out of the house in time to see you and Samantha getting into a car parked in the driveway and drive off. At the time she saw you and Samantha getting into the car, Matthew Schmidt was still standing up, near the top of the driveway. He is said to have laughed, saying, "The dog shot me". With that he fell to the ground and lapsed into unconsciousness.

9 CPR was performed on Matthew Schmidt by his stepdaughter until police and ambulance arrived. He was taken to the Royal Melbourne Hospital, underwent emergency surgery, but died of the gunshot wound at 6.15pm that Saturday evening. The gunshot wound was to the left side of his abdomen, passing upwards and ultimately impacting with a rib and a vertebra in the middle of his back.

10 The evidence seems to indicate that Matthew Schmidt was a strongly built man, significantly larger than yourself as well as younger. He was a heavy drinker, and prone to temper. That morning, before you arrived, he had consumed beer and his prescription medication, Xanax. He had probably also been smoking marijuana. His wife, Karen, agreed at the committal hearing that he was in a temper as he left the house, going past her, to confront you in the driveway. She appeared to accept that her husband was intent on confronting you, saying it would not matter if she "or ten men" had told him not to: "he was going to go out", she said.

11 The evidence also appears to indicate that Matthew Schmidt had an open bladed knife in the pocket of his shorts at the time he went out to meet you. That is evident from the fact it was found there later by ambulance officers, after he had been shot, and there having been no opportunity for him to have obtained it otherwise. There is no evidence, however, that he was holding that knife or that you saw it. You did not give any account of what occurred or why you did what you did, preferring to give a 'no comment' interview when later interviewed by the police.

12 It was put on your behalf that you had armed yourself with the loaded gun, before getting to the house, simply to warn Mr Schmidt away should he come out, given that he was so much bigger and that you believed him to have a violent tendency. According to your counsel, the plan was that you would frighten him by showing the gun and, if that did not work, you would point it in the air and fire it.

13 Your counsel submitted that the angle the bullet travelled through Matthew Schmidt, and his elevated position on the driveway relative to where you were standing, was consistent with you having fired the shot upwards as if firing it as a warning.

14 Your counsel also submitted that the facts were inconsistent with you intending to hit Matthew Schmidt with your shot; moreover, he submitted they were consistent with you not even being aware that you had shot Schmidt. That is, as you left, you would have seen that Schmidt was still standing upright; and you only fired one shot, rather than several shots that one might expect would have been fired had it been your intention to bring him down. Indeed, according to your instructions, you did not know Schmidt had been struck until you heard on the news the next day that a person had been shot and killed in Ambon Street, Preston.

15 You were arrested at your home in the afternoon of Sunday 26 February 2012 and have been in custody since.

16 Taking the life of another person is a profoundly serious offence. By your plea of guilty to manslaughter, you admit that you brought about Matthew Schmidt's death by a deliberate, dangerous and unlawful act. That act was the firing of a gun in his direction: and not simply vaguely in his direction, but so close in fact that it hit and killed him.

17 Although the medical evidence does not reveal how close Matthew Schmidt was to you when you fired the gun, the photographic and other circumstantial evidence suggests that it could not have been more than a distance of several metres. The suggestion that you simply fired the gun into the air seems rather implausible given that the shot hit Matthew Schmidt in the abdomen, even allowing for the slope of the driveway and your height difference.

18 I am not prepared to find in your favour - if it was being suggested I should - that you fired the shot in such a manner that you might not have expected it could hit Matthew Schmidt. As your plea to the charge acknowledges, your firing of the gun was a deliberate and dangerous act.

19 The circumstance that you came to have a loaded gun when you went to his house was not merely unfortunate or coincidental. You took the gun for the very purpose of using it if necessary, and you did. As a result, a man is dead. Of course, you are not being sentenced on the basis that you intended to kill Schmidt or cause him really serious injury, those being the mental elements that would establish the more serious count of murder.

20 No doubt your daughter was beaten by Matthew Schmidt the night before. She had a blackened eye and the evidence of bruising to her back. No doubt she told you about the attack. Moreover, I accept that you are physically smaller and less capable than Schmidt was. Apart from your relative sizes and age, you had had back surgery, with a rod inserted, and at the time of the shooting you were off work with a leg injury. More than likely, you knew of his tendency to violence. Further, given the mix of alcohol and drugs that he had consumed that morning, Matthew Schmidt may well have been intimidating and aggressive.

21 But, as the Crown submitted, that is why you took the pistol with you as "an equaliser" and were prepared to use it - if only to intimidate and to frighten.

22 Your counsel took me to various aspects of the evidence in the depositions to suggest that you were likely to have been aware that Matthew Schmidt would be armed with a knife. I am satisfied, as I have said, that he did in fact have a knife in his pocket at the time of the shooting. But, whether or not you were told he had been polishing a knife the night before, or had brandished it in the previous assault on Samantha, is not a matter on which I feel any degree of persuasion. Still less am I persuaded that you surmised he would have it on him when he came out to meet you on the Saturday morning.

23 In the end the question of whether or not there was a knife is fairly unimportant. The real point, which was not in contention, was that you were told that Samantha had been seriously assaulted the night before.

24 I do not agree with the characterisation of your situation as being "between a rock and a hard place", as it was put on your plea. Your daughter was injured the night before and you did not attend Ambon Street until close to midday on the day Matthew Schmidt was shot. Your preparation for attending Ambon Street that morning must have been quite deliberate and considered. You had plenty of time to think about what you were doing.

25 Clearly, as you would now accept, it was a recipe for disaster to take the law into your own hands and not seek the protection of the police if you thought that there was danger. The measure of the danger you anticipated can be gleaned from the fact that you thought it necessary to take a lethal weapon.

26 Your counsel suggested at one point that your background as a boy from Fitzroy taught you not to go to the police to solve problems. That ethos of bravado is hardly admirable or exculpatory especially when, as here, it results in senseless and avoidable death. It is the very attitude which I believe the community would wish to denounce. Lest that attitude remains prevalent, the community would want to signal strongly to others that it is absolutely not to be tolerated.

27 For reasons that I will describe shortly, you perhaps had more reason than most for wishing to be protective of your daughter. But protective instincts do not explain let alone justify choosing, out of a range of available options for retrieving your daughter's purse, one that so obviously involved the full potential for serious injury if not death. The most that might be said is that, contrasted with a situation in which a person kills another, unprovoked and without any basis at all for fear or the need for self-protection, the circumstances of your case place you in a somewhat more favourable light.

28 So the fact of your daughter having been assaulted, and you apprehending possible violence and a physical mismatch between yourself and Matthew Schmidt, has only limited mitigating influence in weighing the overall character of your offence and your culpability for it.

29 I accept the Crown's submission that causing death because you consciously decided to take a loaded handgun to a potential confrontation, and in fact used it, amounts to a degree of seriousness that places the gravity of your conduct somewhat above the mid-range for the crime with which you have been charged.

30 As is so common in these circumstances, a crime of this nature leaves a trail of emotional and psychological destruction, amongst other consequences, including financial consequences.

31 Matthew Schmidt was 35 years old when you killed him. He had a mother Helen, father Fred, and brother Simon. He had a young daughter, Taylah, now 9, who lives with her grandparents. He had a wife Karen, a step-son Christopher, step-daughter Holly and Jessica, who I understand to be a step-daughter-in-law. Victim impact statements written by Matthew's parents, daughter, wife, stepson, step-daughter and step-daughter-in-law were all read to the court. Each detailed in a very personal way what 'Matty', Matthew or 'Dad' meant to them. They paint a picture of a man who was generous and warm-hearted to those near to him - and very much depended upon.

32 Suffice to say that his family are heartbroken and a hole has been created in their lives which can never be filled. Karen has suffered a psychiatric reaction and is undergoing treatment. Young Taylah, who already suffered from Asperger's syndrome, now suffers anger, anxiety and fear requiring ongoing support and counselling.

33 As a father and married person yourself, no doubt you have some appreciation of the pain and suffering you have caused. Indeed, the first thing your counsel acknowledged on your behalf was your understanding of the loss and grief that you have caused and your sorrow for doing so.

34 As well as Matthew Schmidt who has paid the ultimate price, each of these persons is a victim of your offence. The law requires that in sentencing you I have regard to the impact of your offence upon them. I do. Of course, nothing the criminal justice system can do will ever restore what they have lost or, for them, reflect an adequate measure of the loss they have experienced and will go on experiencing.

35 You are now 66 years old, born in July 1947. You were married at 21, your wife aged 18, having been in a relationship with her by then of 3 years. You had both grown up in the Collingwood/Fitzroy area knowing one another through mutual family connections. Together you had a son and a daughter. Sadly, your son Shaun, took his own life when he was 30 years old, now about 14 years ago. Samantha, your daughter, is now 41.

36 I was informed that you blamed yourself for Shaun's death and thereafter became more protective of Samantha, a matter I alluded to earlier. Samantha has a son, Chase, who is now 16. Chase suffers from attention deficit hyperactivity disorder. You and your wife raised Chase because of problems Samantha and Jamie Morgan have had. Samantha has had a chronic drug habit and Jamie has been in trouble with the law. It seems generally acknowledged that you and Chase have a very close relationship and that you are the only one who controls him. You ring Chase daily from prison. At the time of the sentence hearing Samantha lived with your wife because Jamie was also in gaol.

37 As well as your expressed empathy for the Schmidt family you have also expressed guilt for not being able to look after Chase.

38 You grew up in the Collingwood/Fitzroy area, with four siblings, three of whom are still alive. Your parents, who worked variously in factories, driving trucks and in hotels, were happily married until your father died. Your mother, now 90, still lives in the same home in which she grew up in Collingwood.

39 As for schooling, you were expelled for truancy at about 14. You went to Morning Star Boys' Home for 16 months. After school you had various factory, trucking and labouring jobs. At 23 you bought a truck and an earthmover and ran your own business for about ten years. You moved into scaffolding and were a crane driver.

40 In 1999, in that occupation, you suffered a back injury which required fusion of two discs. You had two operations. A rod was inserted in your back. Following that you had a cleaning business for about eight years. And after that, despite being cautioned not to work because of your injuries, you drove garbage trucks for the Preston Council. Before your offence, you suffered a knee injury and had been off work on Workers' Compensation. Because of it you walk with a limp.

41 You and your wife had jointly owned a home in Preston with your sister-in-law and brother in law. After you became depressed, possibly as a result of medication and pain from your back injury and other personal stresses, you began gambling. The financial consequence was that you sold out your interest in the Preston house to your brother and sister-in-law. Later you returned to live there as renters, paying rent to them.

42 Otherwise, over the course of your marriage, you have lived in and around Ivanhoe, Bundoora, and Preston. For a while you lived out in Mernda and Beveridge having the country life while your children were growing up - Samantha was into horses.

43 You and your wife separated for a period of time several years ago, but reconciled. You have now been married for over 45 years and your wife remains supportive of you.

44 A medical report from your general practitioner of over 30 years, Dr J Nettleton, was tendered, as was a report from a psychologist Mr Warren Simmons who you consulted for the purpose of your plea hearing.

45 Dr Nettleton detailed a number of medical conditions from which you had suffered over the years, arising in particular from your various workplace injuries. He summarised those conditions as being: chronic low back pain and sciatica; plantar fasciitis (a foot condition); ishaemic heart disease requiring angioplasty in 2002; benign prostatism; depression and a sleep disorder. You had been prescribed medications for a number of those conditions.

46 Dr Nettleton recorded the onset of what appeared to be a depressive condition in about mid-2008. You did not attend the appointment he sent you to, although you did attend an appointment with a psychiatrist a year later after you attended Dr Nettleton again. In his report back to the GP, the psychiatrist recorded your various medical issues, the medication you were taking for pain relief, your gambling, your marital separation and reconciliation and your concerns about Chase and Samantha. But no particular further treatment was recommended. I gather you had previously been prescribed antidepressant medication. Counselling and another antidepressant was prescribed by your doctor in September 2009 but it is not clear whether you availed yourself of either.

47 Mr Simmons reported that, in December 2013 there was no evidence of a depressive disorder.

48 Your wife's younger sister, Karlie Stone, gave evidence about you. She has known you since she was 5 and is very close to both yourself and your wife. She testified that you are a very good father and provider. She spoke of the happy days out at South Morang with horses and motor bikes, confirmed you had a lot of guilt after Shaun died and that you became overly protective of Samantha. She confirmed a number of the other personal details I have already mentioned: your close relationship with Chase, the effects on you of your back injury and taking the strong pain killing medication, and your marital troubles and reconciliation.

49 You are fortunate to enjoy the ongoing support of your wife, daughter, grandson, brother-in-law and sisters-in-law, all of whom have visited you in prison.

50 You have some prior convictions for violence. Two were for assault when you were still in your teens; there were some public nuisance type offences in your mid 20's; then nothing again until 2004 when you were fined without conviction for making a threat to kill. The circumstances of that episode, as revealed by the penalty in the Magistrates Court at Heidelberg, were perhaps not as serious as might first appear. Apparently you had just built a new driveway which cost you a lot of money. A council officer came around on a number of occasions to take photographs of your driveway, perhaps due to a permit issue. You found it annoying. Because you had spent a lot of money on it, you were somewhat worried. The next time the council officer came around to take yet another photograph you told him, in colourful language, to depart or, you said, "...I'll kill you".

51 Other than that offence, you have been before magistrate courts on 4 other occasions in the 2000's for driving and offensive behaviour offences. Accordingly, in your adulthood you have no prior convictions for actual violence. You have never been to prison before.

52 Although it could not be said you have an unblemished record, neither can it be said that your present offending is a repetition or progression of some past pattern of behaviour. Your particular criminal history has only marginal relevance in the sentencing exercise.

53 Drawing together your age, your character as revealed by a description of your upbringing, family and working life and the testimony of your sister-in-law, and your criminal history, produces a mixed set of influences in the sentencing exercise. An assessment of a person's character is rarely black or white. It has been said that a person of unblemished, blameless character who offends for the first time late in life may be entitled to call in aid that character and ask a court for some special leniency.[1] You are not in that category. But, in my view, your 64 years (i.e. at the time of offending) of raising and providing for your family, and getting on with your working life, without any serious criminal blemish in adulthood, entitles you to some measure of favour in the assessment of an appropriate sentence. Of course, any such favour will not expunge or overshadow the pre-eminent considerations of general deterrence, denunciation and punishment to which I shall refer in a moment.

54 Ultimately, you pleaded guilty to manslaughter. Your committal hearing was held in December 2012 and again February 2013; the first directions hearing was 13 March 2013 at which time an indictment for a charge of murder was filed; defence response 9 October 2013; a mention on 30 October 2013; and then the arraignment on and plea to the charge of manslaughter on 1 November 2013. Although it had been in prospect for a little while, your offer to plead guilty to manslaughter occurred just before 1 November 2013. Your offer to plead to that offence was clearly not made at the earliest opportunity.

55 It was submitted on your behalf that your plea of guilty to manslaughter shows real remorse. I was invited to conclude from the evidence that, had you decided to 'tough it out', you had real prospects of running self-defence at a trial. Instead, you elected to offer an unqualified plea of guilty to manslaughter. Presumably the submission implies that your plea should be accorded greater value and merit because you gave away a non-fanciful chance of acquittal and were not simply pleading for perceived self-advantage. Such a judgment is hard to make.

56 But, regardless, I accept, as does the crown, that your guilty plea is genuine, albeit late. And, it is to be acknowledged, you expressed both to your psychologist and, through your counsel, to the court and to the Schmidt family, your sorrow for what you did and what you have caused. So I accept that you genuinely empathise with your victims and are sorry for what you have done. Your plea of guilty is consistent with that sorrow, and it has spared witnesses the task of giving evidence as well as saving community expense. Your plea entitles you to a reasonable discount from the sentence you would otherwise have received.

57 In my view, the prominent sentencing purposes in fixing an appropriate sentence in your case are those of general deterrence, punishment and denunciation. That is, the court must denounce the resort to violence to solve problems or settle disputes. The sentence I pass should remove any doubt about the community's attitude to that sort of conduct. And you should be justly punished for taking the life of another.

58 Given your age and past behaviour, and the particular circumstances that gave rise to the offence, it is most unlikely that you will reoffend. Specific deterrence, the purpose of promoting and effecting rehabilitation and protection of the community are not particularly germane as sentencing considerations in your case. To the extent rehabilitation may be relevant, that purpose can be accommodated by the period to be fixed before you are eligible for parole: a measure that I also think is an appropriate means of reflecting any favour to be accorded due to your age.

59 If there was any suggestion on your behalf that certain aspects of your health - your back injury or your depression - mean that prison will be more difficult for you than others without those dispositions, I disagree. The evidence simply does not rise to that level. I agree with the submission put by the crown that although you suffer some physical injuries, they are equally manageable in prison as they are out of it. You are simply the person that you are: your personal factors neither mitigate nor aggravate your situation.

60 I have considered the principle of totality and the avoidance of any sentence that might be considered 'crushing' in the context of you being an offender in your mid-sixties. In my view, the sentence I am about to pass does not require further moderation in the light of those principles.

61 As I have said, I regard this case as a reasonably serious example of manslaughter. Counsel have referred me to a number of cases for guidance purposes[2] which, amongst others, I have considered. It has been described as 'unremarkable' to say that the ascertainment of 'current sentencing practices' for the crime of manslaughter is particularly difficult given the infinite variation of circumstances that may constitute the crime.[3]

62 Your counsel urged me to find that your culpability was less than that of Mr Curran in R v Curran. Upon pleading guilty, Curran was sentenced to 8½ years' imprisonment with a non-parole period of 5½ years for manslaughter by use of a handgun in a struggle at his victim's house when he attended to deal with some dispute. But a significant point of difference between that case and yours is that the sentencing judge in that case was unable to conclude the offender had himself taken the gun to the house whereas, here, there is no doubt that you brought the gun as I have described. There were other factors, some more and some less favourable to you in contrast. Having read the facts of that case, and for what is worth, I am not persuaded I should treat you as less culpable than Curran was.

63 As is always said, each case is different but other cases do provide helpful points of similarity and contrast. In the end it is my task to do the best I can to synthesise all the relevant facts and circumstances and the sentencing principles, to distil what appears to me to be the appropriate sentence.

64 Having undertaken that exercise, in your case, I consider that the appropriate sentence on the count of manslaughter is a term 8 years' imprisonment. I direct that you serve 5 years and 3 months before being eligible for parole.

65 But for your plea of guilty I would have sentenced you to a term of 9 years and 9 months' imprisonment with a minimum term of 7 years and 6 months before being eligible for parole.

66 I declare you have served 801 days of pre-sentence detention, inclusive of this day, which shall be reckoned as having already been served under the sentence, and I shall cause that declaration to be noted in the records of the court.

[1] R v Okutgen (1982) A Crim R 262, 265-6 (Starke J).

[2] R v Curran [2013] VSC 583; R v Parker [2013] VSC 479; Kells v The Queen [2013] VSCA 7; Tiba v The Queen [2013] VSCA 302.

[3] R v Saleh [2012] VSCA 2010, [12] (T Forrest AJA, Neave and Weinberg JJA agreeing); Kells v The Queen [2013] VSCA 7, [48].