The Queen v Lamblin [2017] VSC 306

2 On 12 June 2016, you took the guitar to Kevin Hoffman's house and left it there for safekeeping. Later that day, Mr Snaith, a friend of Mr O'Donnell was visiting Mr Hoffman, saw the guitar, recognised it as belonging to Mr O'Donnell and returned it to him. You became angry and remonstrated with Mr Hoffman about the guitar being returned. During the week after the guitar was returned you also spoke to Mr Snaith and told him that you were not happy about the guitar being returned and that he should watch his back. You spoke to a friend of yours, Darren Rich, and told him about the retrieval of the guitar. Mr Rich also observed you to be angry.

3 You were living an itinerant lifestyle at this time. On 17 June 2016, you left Darren Rich's house borrowing a tent and a mattress. You also stole three knives from him.

4 On Saturday 18 June, Mr O'Donnell spent most of his day at his factory, where he sometimes resided and where he conducted a business repairing BMW motor cars. His partner, Helen Gaisbauer, and his mechanical assistant, Jake Hewgill, were also present for most of the day. Mr Hewgill left at around 5.00pm. During the evening of 18 June, Mr O'Donnell and Ms Gaisbauer spent time in the living area at the back of the factory watching television. At 7.26pm, Mr O'Donnell left the factory to walk his dog. He walked down the driveway area of the factories and turned right, walking along Olive Grove. While he was out you arrived at the factory area at 7.30pm. You were captured on CCTV cameras entering the factory area carrying a backpack. You had with you at least one large knife. Armed and uninvited, you entered the front of Mr O'Donnell's factory through the unlocked front pedestrian door. There were no lights on in the front workshop area and the only lights on were in the back kitchen area, where Ms Gaisbauer was watching television. Your uncle returned to the factory about 10 minutes later. You confronted him in the main workshop area near the door to the kitchen/living area. You exercised your right to silence when speaking to police and we have no direct account of what then occurred. It is accepted by the prosecution that an argument broke out and a scuffle ensued. You stabbed the deceased once in the left side immediately above the hip area. The wound was at least 12cm deep and 5.2cm wide. There is no suggestion that Mr O'Donnell was armed or that you were acting in some form of self-defence. Ms Gaisbauer heard the commotion, opened the sliding door to the workshop area and observed you standing there holding a knife with Mr O'Donnell lying below you. She picked up a vacuum cleaner and used it to try to push you away. You slowly backed out of the workshop area waving the knife at Ms Gaisbauer in a threatening manner. At approximately 7.42pm, you left the factory area. Ms Gaisbauer locked the door and the police were called. Mr O'Donnell had fallen unconscious and was declared dead at the scene by paramedics some time later. The cause of death was the stab wound to the area just above the hip. The wound track extended slightly upwards, inwards and backwards into the abdominal cavity and your uncle died from significant blood loss.

5 After leaving the factory, you went to a number of houses in the Boronia area over the next day or two. Various witnesses have described you as appearing high on drugs, rambling, ranting and raving. It appeared to one witness that you were having a breakdown. You were finally detected by investigators hiding in a cupboard in a vacant house in Whittens Lane, Doncaster. I have read a transcript of your interaction with police as you were being conveyed to the Docklands Police Complex and I have viewed a DVD of your police interview. Making due allowance for the fact that you may not have slept much before the interview and that you may well have consumed drugs, nevertheless my impression of your dealings with police is that you were didactic and arrogant. I cannot and do not punish you for this conduct, but it is a factor that I take into account when considering whether or not there is genuine remorse in this case. I will return to this aspect in due course.

6 You were originally charged with murder but negotiated a plea to manslaughter at about the time of the committal mention. All parties are agreed that I should treat your plea as an early plea for the purpose of assessing the sentencing benefit that flows from this.

7 I accept that at the time of your offending and during its aftermath, you were affected by methamphetamine (ice). This finding may assist in explaining your behaviour but does little to excuse it.

8 In an excellent plea on your behalf Mr Tiwana emphasised a number of factors that are favourable to you. You have strong family support, despite the fact that you have taken the life of one of your own. You have limited prior convictions and none for violence.

9 You are now 33 years old and you have had a relatively difficult upbringing. You were a disruptive disrespectful impulsive young person and a diagnosis of ADHD was made when you were in Year 7. In 1996, when you were 12, your parents sought counselling for you to treat your inappropriate disruptive and disrespectful behaviours. You were easily distracted, bored, avoidant and content to provide shallow, flippant responses. This is precisely what I observed in the police interview conducted 20 years later. Despite these difficulties you are obviously intelligent and you qualified as a boilermaker after leaving school.

10 Including a pre-apprenticeship year this qualification was the culmination of five years practical work and theoretical study. You are to be commended for this and, unlike many in your position, you will likely have well paid work available to you upon your release. Whether you take advantage of this depends on your preparedness to restructure your life.

11 From leaving school until about the age of 30 I am told that you enjoyed a relatively stable life. You had settled employment; after six years you left your original employer and worked for various engineering firms in the Bayswater area. You earned good money and rented your own accommodation.

12 I accept that, like so many young people, you allowed drugs to compromise your life. You began abusing cannabis and ice. This escalated when you went to Queensland to work for a mining equipment manufacturer. As I understand it your then partner also used this drug and by about 2015 things had deteriorated and you returned to Victoria with no money, no relationship, nowhere to live and no car. You were receiving benefits and using drugs. You commenced a relationship with a young woman and lived with her intermittently in a bungalow at the back of her parents' house. Otherwise, to use the vernacular, you 'couch surfed'. I am told and accept that some days before you killed your uncle you spent on ice what little money you had saved for rent.

13 You maintained to your psychologist Ms Matthews that you once had a warm close relationship with your uncle which had ceased four or five years ago. You told her that you stole your uncle's guitar as bait to a conversation with him about your relationship and that your attendance at your uncle's factory was to conduct this conversation which you had avoided for years. You told your psychologist 'it had got to the point I had to sort it out'.

14 I do not accept that you went to the factory simply to talk. People who wish only to converse do not arm themselves with knives. While you may have had some hope of repairing a fractured relationship, I am satisfied beyond reasonable doubt that you contemplated the possibility of violence, armed yourself and when things got physical you unlawfully and dangerously took your uncle's life. I consider that your offending is aggravated by it taking place in your uncle's private residence/factory. I regard this as a serious example of a serious offence.

15 Your psychologist Ms Matthews has diagnosed you as suffering from ADHD and Oppositional Defiant Disorder. Sensibly, Mr Tiwana does not seek to make any submissions based on Verdins case. He does bring to my attention however that since being imprisoned, and for the first time for years, you have some stability in your life.

16 You have not made an application for bail and have been in custody for nearly a year now. Your technical skills have been utilised in the engineering section of the MRC; you work five days a week and are teaching a fellow inmate who is, in effect, your apprentice. You go to the gym every day, eat well and regular drug screening apparently demonstrates that you have been drug free throughout your time in custody. Your appearance in court is vastly different to the gaunt ice addict I saw on the police video.

17 I consider your prospects for rehabilitation depend entirely on whether you are able to avoid drug use. If you can then you are young enough to enjoy a productive life. If you can't you will wither and likely die young. I am prepared to assess your prospects for rehabilitation as reasonably good.

18 Your plea of guilty has saved your family the further trauma of a trial and the community has been spared the expense and inconvenience of that trial. You are entitled to a sentencing benefit for this.

19 It will be clear I hope that I found no remorse in your dealings with police. You seemed superciliously indifferent to the consequences of your actions and to the grief you had imposed on your family. Notwithstanding this I am prepared to accept that as your head cleared and the drug fog lifted that you have some belated but nonetheless genuine remorse. I rely heavily on the references from your mother and father in making this finding. Given your now clearer state of mind you no doubt have paused to think about the consequences of your actions. Your family will never completely recover from what you have done. The Victim Impact Statements speak eloquently of the grief you have brought to generations of your family. I am obliged to and do take them into account.

20 I stated a littler earlier that I regard this as a serious example of the crime of manslaughter. The sentence I impose must act as a deterrent to others who are minded to use weapons to resolve their emotional differences. The sentence must also reflect the need for punishment and denunciation of your conduct.

21 Balancing these factors as best I can I sentence you to ten years' imprisonment with a minimum of seven years to be served before parole eligibility.

22 I declare that 342 days have been served in pre-sentence detention, not including today.

23 Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to 12 years' imprisonment with a minimum of eight years and six months.