The Queen v West [2013] VSC 737

Supreme Court of Victoria|2013-12-20|Before: CURTAIN J

CRIMINAL LAW - Murder - Plea of guilty - Victim unknown to the offender, friends with offender's ex-girlfriend - Single stab wound to the back with a knife - Youthful offender, 20 years old at time of the offence, 21 years old at time of sentence - Longstanding history of mental health issues and substance abuse - R v Verdins [2007] VSCA 102; (2007) 16 VR 269 applicable to a degree - Sentence to be served in protection

2 The victim of your crime was Dale Trent Cheney. You did not know him, you had never met him and had nothing to do with him prior to the events which led to his death outside 4 Banksia Court, Sunbury on Sunday 30 September 2012.

3 As at September 2012, you had been in a relationship with Melanie Johns for some three years. That relationship provides the context for this offence. The relationship was volatile and marked by jealousy and immaturity on both sides.

4 There had been numerous breakups and reconciliations, and by September 2012, you and Melanie had not seen each other for a number of weeks, but you were in constant phone and text contact with each other, especially in the days leading up to Sunday 30 September 2012.

5 On 22 September 2012, Brett Johns, Melanie's father, travelled interstate and left her at home alone. In the ensuing week, Melanie had various friends stay with her, which included Dale Cheney and Corey Semmens, and you became aware of this.

6 On Friday 28 September 2012, you spoke with a friend, Jordan Omazuzi, about Dale Cheney and Corey Semmens staying with Melanie Johns and you said you were extremely jealous of them staying with her.

7 On that day, you purchased a new mobile phone and obtained a new number. Immediately upon connecting that phone, you commenced calling and texting Ms Johns. You and she were in constant contact with each other on that Friday evening.

8 On the morning of Saturday 29 September 2012, you were at the home of your friends, Wade and Rory Pope. Stacey Triffett and Jordan Omazuzi were also there, and you obtained Corey Semmens' mobile phone number from Jordan Omazuzi. In the meantime, Corey Semmens had obtained your number from Melanie Johns. You contacted Corey Semmens on his mobile phone and, in that call, Corey Semmens said that he would put you in the boot of his car and take you somewhere. As a response you left, saying that you were going to "punch on" with Corey. You went to the corner of O'Shannessy and Brook Streets, Sunbury and sat on a bench, waiting for Corey. You had with you at that time a small kitchen knife. Rory Pope and Stacey Triffett happened upon you and spoke with you; you told them that Corey Semmens had been cheating on you with Melanie Johns, he had been ringing you, and telling you that he had been having sex with her. You told Rory Pope that you were going to stab Corey for having sex with Mel. Rory Pope told you to go home. You then left.

9 At 12.44pm, Corey Semmens called your phone after Ms Johns had told him that you were likely to come around that day. Corey rang you again at 1.02pm and left a message for you, and at 3.52pm, Corey rang you again and again left a message, taunting you that they had waited four hours and had put the kettle on. This was presumably a reference to Corey and Dale having waited outside 4 Banksia Court that afternoon for you to arrive, to no avail. You began texting and calling Ms Johns, saying that you wanted to see her and expressing your animosity at her having Corey Semmens and Dale Cheney staying with her, and accusing her of using drugs. The text messages that you sent Ms Johns and which she responded to, suggest that you were becoming obsessed and distressed about the presence of Corey and Dale. Ms Johns replied to a large number of your text messages until she fell asleep in the early hours of the Sunday morning. By that time, you had sent her 434 text messages and called her ten times, and Ms Johns had sent you 292 text messages and called you 18 times. At 1.10am in the early hours of Sunday 30 September 2012, you sent a text saying, "I'm more upset about Corey and Dale and how they've come to your house, but then I want to see you or pick you up. You're sick or tired at home. I know you were with them today because I heard on the phone".

10 During the text messages sent on the morning of Sunday the 30th, you threatened to commit suicide and sent text messages saying goodbye to Ms Johns and that you were going to hang yourself and take pills. At 5.31am, you texted Ms Johns saying, "Every time I think about it I want to kill myself ... I'm freaking out you're going to leave me for them guys because you see them more than you want to see me". This was the tenor of the text messages which continued throughout the course of the morning.

11 After Ms Johns awoke, she sent you a text at 12.14pm, saying, "I have 175 unread messages from you. I'm not reading them. I woke up with 40 missed calls". You, however, continued to text her in the following terms: at 12.15pm, "Answer me. It's me or them"; at 12.59pm, "I'm coming up. I know there is cunts there like they were there when I said I'll stab them"; at 1.13pm, "You're fucked and if they are there they're fucked and I will make you watch. Why I skyce their faces". Not surprisingly, Ms Johns became concerned with the tenor of the messages, she told you to leave her alone and she stated in numerous text messages that her father was at home, knowing that you would not attend if her father was present.

12 At 5.56pm, you sent her a text, "Are you still talking to them cunts", and she replied, "No I haven't spoken to anyone". At 5.57pm you sent a text, "Good especially that Dale cunt". You continued to send text messages saying you wanted to meet with Ms Johns because you had not seen her in a month, and expressed your frustration that she would not answer your calls.

13 Throughout this time, you were at your home with your sister, Sharna West, and she was present on one occasion when you were on the phone to Ms Johns and Ms Johns apparently hung up on you, and you complained, calling her a "fucking bitch".

14 At approximately 8.45pm on Sunday 30 September 2012, your mother returned home from work. You borrowed her car and drove to O'Shannessy Street, Sunbury, where Wade and Rory Pope and Stacey Triffett lived. You went inside and asked to speak with Wade and Rory, but Wade was not home and Rory was asleep. Instead, you spoke with Stacey Triffett, saying, "He's there. I'm going to fucking stab him. I will". You went into the kitchen while Ms Triffett tried to wake up Rory Pope. You were heard to open a number of kitchen drawers, and it appears you selected what Rory Pope later described as "their largest cooking knife", and then left the house and drove to Banksia Court, Sunbury.

15 You parked outside number four and started sending text messages to Ms Johns. You were asking her to come out the front and talk to you. While outside, you sent her 20 text messages and attempted to call her six times. Ms Johns asked you to go away and to stop doing this. She had told you earlier that her father was home and, in order to make good that pretence, turned every light on in the house. At 9.02pm, you sent your last text message to her.

16 You had parked your car at the top of the horseshoe driveway in Banksia Court, facing back towards the entry of the court. You sounded the horn of the car, and Ms Johns came outside with Dale Cheney and went to the driver's side window. She spoke with you and asked you to leave. Dale Cheney was standing by her side. He also told you to leave, and it appears that he may have had a wheel brace or something similar with him. You drove away, and Dale and Melanie went back inside. However, a short time later, which has variously been described as two minutes, about five minutes, or just under ten minutes, you drove back to Banksia Court and parked your car on the road. At this time, Dale Cheney walked outside to the driveway where his car, a Holden Commodore sedan, was parked at the bottom of the left hand side of the driveway, in front of the double garage roller door.

17 Dale Cheney had opened the front driver's side door and had put the keys into the ignition and, as he was doing so, you approached him, carrying the kitchen knife, and stabbed Dale in the centre of his back. As you did so, you asked him who was inside with Melanie. Dale told you that Melanie was inside, and then he fell to the ground, lying on his back in the driveway. Melanie Johns and Corey Semmens heard a loud noise coming from outside the house. Melanie ran out the front. She saw your car driving away, screeching as it went, and Dale lying on the ground next to the open car door. Using Dale's phone, she called triple-0, asking for an ambulance. Corey Semmens had armed himself with a guitar when he heard Ms Johns screaming. He ran out of the house and immediately got into Dale's car and drove off to follow you, not realising the situation was as serious as it was.

18 The ambulance attended at 9.27pm. Dale Cheney could not be revived. He had died at the scene. The pathologist, Dr Michael Bourke, later determined that the cause of death was a single stab wound to the back, inflicted with at least moderate force, the knife having penetrated a T-shirt and bomber jacket worn by the deceased.

19 You fled the scene, driving out of Banksia Court into Yellowgum Boulevard, travelling west along Menzies Drive. You threw the knife out of the car and it landed on the nature strip in Menzies Drive. You abandoned the car and left the keys in the ignition. You called your mother, telling her where you had left the car so that she could collect it. That call was made at 9.19pm. At 10.00pm, you went to Xavier Court, Sunbury. You called out to Mitchell Hayes was walking with two girls, Shauna Baldwin and Jade Kimpton. You got out of the car and ran over to them and spoke with Mitchell. Shauna Baldwin heard you say that you went and got Wade's knife and stabbed him. You said, "The knife went in so easy. I didn't expect it to go right through", at which point you indicated with your hands to the left side of your body, around chest height. You went on to say, "I'm going to gaol for sure. He's dead, I've definitely killed him", and you kept repeating that phrase. You appeared to Shauna to be panicking and paranoid. Mitchell asked you who you had stabbed, and you said, "It was Dale". You told Mitchell that you had dumped the knife, and you said you still had blood on your hands and on your top, and with that, you grabbed your jumper and pulled it out from your body to show Mitchell. You were heard to say that someone had been feeding the drug "ice" to Mel and that you had stabbed them.

20 Jade Kimpton, in her statement, described you as indicating you had stabbed Dale around the side of his body, and motioned your hand with a stabbing motion towards the side of your body. You had said that the knife had gone all the way in, but that you did not mean to hurt him that badly, and that when you pulled the knife out, blood had flicked everywhere. Indeed, she observed you to have blood stains down the leg of the pants you were wearing. She also heard you to say that you had been to Mel's house that night and that drugs were at the house and Mel looked like she had been using "shard", which I take it to be a reference to ice. She also reported that you said you did not think it was meant to be Dale that you stabbed; it was meant to be Corey, because Corey was sleeping with Mel. She said you appeared to be worried and upset that you had hurt Dale as much as you had. At 11.15pm, you spoke to Rory Pope on the phone and again reiterated that you had stabbed Dale Cheney. At 11.44pm, you spoke with your mother. She told you the police were at your home and that you needed to come home, that the boy had died.

21 You, Hayes and Jade Kimpton then walked to Jade Kimpton's house and, as you did so, you walked past the end of your street and you saw a police vehicle parked outside your house. You then fled into a park area that runs to the rear of your house. You remained in that park area from that time until about 2.30am, when you returned home via the backyard. You went into your bedroom and changed your clothes. Your mother found you in there and told you the police were outside. She took you outside to hand yourself in. You were then arrested and conveyed to the Sunbury Police Station.

22 You were interviewed and told the police of the route you took after stabbing Dale Cheney and where you had thrown the knife. The knife was later located outside 51 Menzies Drive, Sunbury. It was observed to have bloodstains on the blade. It was 33 centimetres long. At 5.25am, you were assessed by a forensic medical officer as not fit to be interviewed because you had not slept for two days, and you had told him you had, that day, consumed one gram of cannabis. The forensic medical officer also noted possible depression, a disturbed mental state and an overdose of medication the previous day. You were charged with murder and remanded in custody. You were not subsequently interviewed.

23 I turn now to Dale Cheney. Dale Cheney was an only son and brother. He was greatly loved. He was raised in the Sunbury area and attended Killara Primary School and Sunbury Secondary College, completing Year 10 in 2011, following upon which he worked in his father's family business, which involved importing boats, motor vehicles and motorcycles into Australia. He loved mechanics and doing up cars. He was looking forward to getting his licence. He was only 17 years old. He stood at the threshold of his life. Victim Impact Statements made by Darren Cheney, Dale's father, Victoria Cheney, Dale's mother, Becca Cheney, Dale's sister, and Peter Cheney, Dale's uncle, were tendered in evidence and read to the Court. They each speak eloquently of the grief, sorrow and pain that they have each endured. No sentence this Court can impose can restore to his family their loved son, brother and nephew, nor can it ameliorate their grief and sorrow.

24 I turn now to matters personal to you. You are 21 years old; you were 20 years old when you committed this offence. You have admitted a prior matter, being a charge of intentionally damaging property, for which you were fined $400 without conviction. This related to an occasion when you attended the Johns' house and smashed up property, as a result of which Melanie Johns took out an intervention order against you, and that order was still operative at the time of this offence. Further, since you were remanded for this offence, you have also been convicted of recklessly causing injury and possessing a controlled weapon, being a knife. This related to an incident where you stabbed your sister's boyfriend twice in the arm. You pleaded guilty on the basis of excessive self-defence, and were sentenced to an aggregate of three months' imprisonment. This offending occurred six months prior to the murder of Dale Cheney, and is particularly troubling, because it confirms that you were in the habit of carrying a knife and using it.

25 Two reports of Dr Ong, forensic psychiatrist, were tendered in evidence as Exhibits 2 and 3. Dr Ong details your personal circumstances as you recounted them to him. You have an older half-sister from your father's first marriage, and a younger sister. Your parents separated when you were aged about 16, and you remained living with your mother. You described your father as a harsh disciplinarian, and you and your mother were both subject to physical and mental abuse at his hands. After your parents separated, you did not see your father again until you were 18, and you did not see him after that until you were held on remand. You had learning difficulties and you found school difficult. Indeed, you changed school three times between Years 9, 10 and 11, and left school early in Year 11. You then associated with a group who were engaged in substance abuse, graffiti and thieving. You have done little in the way of employment; a month in a bottle shop, one day at an abattoir and some work at a fast food outlet. At the time of this offence, you were in receipt of a youth allowance.

26 You have had mental health issues since you were 16, when you first presented with anxiety-related symptoms, following upon a meeting with your father, apparently post your parents' separation. You were prescribed antidepressants. Five months later, following an altercation with your father, you attempted suicide by hanging, but the rope broke. In May 2010, you were referred to a psychiatrist for substance abuse, thought disorder and paranoia. In June 2010, you again attempted suicide twice, but a phone call from Ms Johns led to the police intervening. At this time, you connected with Orygen Youth Health, who made a diagnosis of moderate depression and cannabis dependence. In August 2010, you again attempted suicide. Again, the police intervened and, on this occasion, you were admitted to Orygen Youth Mental Health Unit as a voluntary patient, but you absconded and later returned to the Unit as an involuntary patient. You were diagnosed with borderline personality disorder and narcissistic traits. You remained at that Unit for six days. In January 2011, there was another suicide attempt. You were taken to the Sunshine Hospital and but again you absconded.

27 In April 2012, you were again referred to a psychiatrist, and later referred yourself to Orygen Youth Health, but there appeared to be no follow-up. In May 2012, you were referred to the Mid West Area Mental Health Services CATT team for assessment. You were assessed as being paranoid, delusional with suicidal ideation and possible emerging psychotic illness and a possible risk of harm to self and others. The next day when the CATT team called to see you, you told them you were too busy. In August 2012, you engaged in bizarre behaviour, graffitiing your bedroom walls with sentiments of self-loathing. On 28 August, you were admitted to the psychiatric unit at the Sunshine Hospital as an involuntary patient for five days. You were assessed as having suicidal ideation, refusing treatment, carrying a knife, paranoid personality ideation and auditory hallucinations. You were recorded as having partial insight, impaired judgment and disturbed sleep. You were again diagnosed with borderline personality disorder with narcissistic traits, with substance abuse or dependence. You were prescribed antidepressants and mood stabilisers. This was followed up by two weeks of psychiatric outpatient treatment between 1 and 14 September 2012. It appears that the last CATT follow-up appointment with you was on 27 September 2012, three days before you murdered Dale Cheney.

28 You reported to Dr Ong a history of cannabis use since the age of 17, which had escalated to daily consumption, and you told Dr Ong that cannabis made you paranoid. You started taking ice when you were 19, and this also became a daily habit. You reported increased energy, but also visual hallucinations and irritability when you were coming down, which you appeared to appease by smoking cannabis. You underwent a detox program on two occasions, but reported that you had been using ice in the days leading up to this offence, including the very morning of it, although this is contrary to what you told the forensic medical officer, and that you had not slept.

29 Dr Ong was of the opinion that you suffer the symptoms consistently with borderline personality disorder, characterised by effective instability, frantic attempts to avoid abandonment, anger and pseudo hallucinations, exacerbated by your drug abuse. In Dr Ong's opinion, your mental health is now stable, although when you were first held on remand, you were prescribed medication and subject to psychiatric review. He notes that you are currently not on any medication or subject to psychiatric review, there is no evidence of major depression or psychosis and you no longer harbour ideas of self-harm.

30 Nonetheless, in Dr Ong's opinion you should be closely monitored by prison mental health services and appropriately treated as required. You would, he opined, benefit from programs directed towards anger management and managing distress. Your risk of re-offending will be further reduced if you address your substance abuse, which has caused disinhibition and increased impulsivity. You have expressed to Dr Ong your desire to get fit, undertake studies and get your life back on track. In Dr Ong's opinion, you acknowledged remorse and insight into your offending and its tragic consequences. This remorse and insight was also demonstrated in the letter you caused to have written, which was read to the Court and subsequently tendered as Exhibit 4.

31 Dr Ong, in his supplementary report, confirmed the causal connection between your condition and the offending conduct when he opined that you are likely to act in an impulsive ill-judged manner due to your personality, that you have a pattern of engaging in aggressive behaviour when faced with relationship difficulties, and that this was a function of your personality structure. However, Dr Ong added the qualification that all of this is exacerbated by your problematic substance abuse. Mr Dempsey submitted that the principles enunciated in R v Verdins[1] are here applicable. Ms Williams SC, who appeared on behalf of the Crown, disputed that this was so, contending that your mental state was brought about by your illicit drug use. I am persuaded that the principles of Verdins' case do apply here, but only to a degree, because you must have known that your drug use disturbed your mental equilibrium and on your own account you had taken either cannabis or ice, or possibly both, that day. You have acknowledged that you wanted to hurt Mr Cheney as an expression of your rage about the situation with Ms Johns. So this was a revengeful act. Although Dr Ong took the view that the fatal stab wound was inflicted in an impulsive moment of rage, that denies the escalation of your anger and the expression of your intent throughout the course of the weekend and your determination to inflict at least serious injury by the selection of a knife as a means to vent your rage and frustration at the possible loss of your relationship with Ms Johns. This was still conduct of a high order and your moral culpability for it, although reduced, remains high.

32 The maximum penalty for murder is life imprisonment. In sentencing you, I must have regard to the nature and gravity of the offence and your culpability for it. Clearly, this is a serious example of a serious crime. In Mrs Cheney's words, Dale "was murdered for no reason by a stranger. It is unbelievable". This was truly an gratuitous act of extreme violence. I am satisfied that Dale Cheney posed no threat to you. He was not armed, he was not acting aggressively. You did not know him. He had not been the recipient of any of your text messages in the hours and days prior to that Sunday. Dale Cheney had not texted you or communicated with you in any way apart from his standing with Melanie at your car earlier in the evening. You and he were complete strangers to each other. This was, as your counsel Mr Dempsey conceded, as pointless and senseless a death as one could imagine.

33 An issue arose as to whether you were armed on the first occasion you went to Banksia Court. Mr Dempsey relied upon the statement of Stacey Triffett, who said that you were at the Popes' house between 7.00pm and 8.00pm, and that you had arrived there in your mother's car. After you had rifled through the drawers in the kitchen and selected the knife, you returned to her and, in effect, said not to worry about waking Rory up because Dale is going to leave. Mr Dempsey submitted that it may be inferred from this comment that you knew that Dale was at the house, because you had only shortly spoken to him there, and further, that your comments to Stacey Triffett did not indicate that you intended to kill him, but rather intended to threaten him with the knife.

34 The Crown submit that an analysis of the times suggest that you would not have had an opportunity to drive to Banksia Court and then to the Popes' house and then return to Banksia Court. Ms Cookson said that she gave you her car at 8.45pm and Stacey Triffett says that you came to the house between 7.00pm and 8.00pm. Ms Triffett must be mistaken as to the time, because you drove to her place in your mother's car and that car was seen at Banksia Court at 8.48pm. Your last text was at 9.02pm, and you told your mother where to collect her car at 9.19pm. The murder took place between 9.02pm and some time before 9.19pm, so a very small window of opportunity existed between 9.02pm and some time before 9.19pm for you to have travelled to the Popes' house, spoken to Stacey, selected the knife and driven back to Banksia Court, stab Dale Cheney and then drive to where you abandoned the car. I am not persuaded that you did so, but even if I were wrong on that point, it matters not. Either way, you did take a knife with you to Banksia Court and, when you spoke to Stacey Triffett, you had already determined to use it on Dale Cheney.

35 Mr Dempsey had also submitted that your intention was to inflict really serious injury on Dale Cheney as distinct from the intention to kill him, and to that end, Mr Dempsey relied upon your comment to Stacey Triffett that she was not to worry because Dale was going to leave. Mr Dempsey also relied upon what you said to Jade Kimpton, Shuana Baldwin and Mitchell Hayes shortly after you had stabbed Dale Cheney. Mr Dempsey also sought to rely on the dynamics of the injury and the interpretation of the blood pattern located at the door of the car to challenge the assertion that although Dale Cheney was stabbed in the back, he was not stabbed from behind; in circumstances where you must have crept up on him.

36 The Crown contend that you intended to kill Dale Cheney when you inflicted the stab wound, and rely on your selection of the largest knife available to you and the statement of Ms Triffett (page 443) where you were heard to yell, "I'm going to fuckin' stab him, I will". It is also to be noted that Rory Pope, in his statement made on the afternoon of the following day, stated that Stacey had told him that you had said you were going to kill Dale. The Crown contends that your actions were the culmination of a series of threats to stab either Corey or Dale.

37 I do not accept that when you selected the largest knife from the Pope kitchen, your intention was to threaten Dale Cheney only. That would be totally inconsistent with your attitude and demeanour as revealed by the evidence in the hours leading up to the murder. I am satisfied that when you stabbed Dale Cheney, you intended to inflict really serious injury to him. It is consistent with the way in which you spoke about stabbing and slicing Corey and Dale earlier in the day. It is also consistent with what you said to Mitchell Hayes as he walked along the street with the girls, and what Jade Kimpton and Shuana Baldwin reported you said to them in the hour or so after the stabbing. As to whether you stabbed Dale Cheney in the back as he was leaning into the car or as he was facing you, the evidence, in my view, is equivocal. The pathologist cannot say how the injury was inflicted, other than to say the knife travelled some six to seven centimetres from the back to the front, upwards and from left to right, and Maxwell Jones, forensic scientist, opined that the bloodstains appeared to be projected from 25 centimetres out from the steering wheel and at a height of 80 centimetres, such projection consistent with a rapid movement, jolting action or flicking action. I am unable to make a positive finding as to the dynamics of the infliction of the fatal injury, but simply make the comment that you would have no reason to stab Dale Cheney in the back if he were facing you.

38 I am satisfied that you were driven by an uncontrollable rage and jealousy, and that in stabbing Dale Cheney to the back, you intended to at least cause him really serious injury. Having said that, it must be noted that Ms Johns said that you appeared calm when she spoke to you at the car. You had the presence of mind to explain your actions shortly thereafter, so you knew what you had done and you knew that such was the force of your attack that you had killed Dale Cheney, and you also knew it was Dale Cheney you had murdered and not Corey, and yet you had nothing to do with Dale Cheney other than to be jealous that he had spent some time at that house with Melanie Johns. You were not welcome at that house; not only had Melanie told you that, but you knew that there was an intervention order prohibiting you from being in the vicinity of the Johns' house.

39 Any sentence imposed upon you must not only have due regard to the nature and gravity of the offence committed, but also serve to punish you and act in denunciation of your conduct and give due weight, although moderated, to considerations of general deterrence. The sentence must serve to recognise the sanctity of human life, particularly here, where a young life was so cruelly ended by such a senseless, self-indulgent act. You fall to be sentenced as a youthful offender and, as such, your age and your rehabilitation assume a primacy in the sentencing discretion. However, such considerations must also yield to considerations of just punishment, denunciation and specific deterrence, especially where the objective gravity of your offending renders this a serious example of the crime of murder. Even allowing for the reduction in your moral responsibility, other considerations carry considerable weight, especially specific deterrence, because of your propensity to carry a knife and use it, and the protection of the community from you, because you will remain a threat to the community's safety until and unless you are at least able to develop the mechanisms to control your anger and achieve a degree of maturity.

40 You have the continued support of your parents and, in particular, your mother and sister, who regularly visit you. Very little has been said about your prospects for rehabilitation, although you have expressed yourself as concerned to make something of your life and to participate in further education. Dr Ong has stated that your condition is lifelong and that you should undergo therapeutic programs directed towards anger management. There is no evidence before me that your imprisonment is more burdensome by reason of your mental health, but I acknowledge and do have regard to the fact that by reason of your parents' employment in the Correctional Services industry, you are likely to be held in protection and thereby forego the programs and privileges, such as they are, available to mainstream prisoners. That does not mean, however, that you will not have access to programs designed to assist your rehabilitation. You will.

41 I note also that you are not presently on medication and, as stated previously, no longer harbour thoughts of self-harm. It is worrying that when you spoke with Dr Ong you still considered your relationship with Ms Johns had a future and, indeed, she continued to visit you in prison until prohibited by Court order. It appears, then, that your insight into the genesis of your offending is somewhat limited and, until you gain a level of maturity, your prospects for rehabilitation must be somewhat guarded.

42 In sentencing you, I take into account all of these matters, including your plea of guilty, and give you a discount for it. I take into account also that, by reason of your plea, you have saved the community the cost of a trial and the Cheney family the ordeal of one, and that by your plea you have facilitated the administration of justice. I take into account also your expression of remorse and your somewhat guarded prospects for rehabilitation. I take into account your mental state; that you are diagnosed as suffering a borderline personality disorder and that therefore the principles of Verdins are here applicable. I take into account that, at the age of 21, you will be serving a significant sentence of imprisonment. I take into account that you are to be sentenced as a youthful offender. In short, I take into account all matters which go in your favour and, accordingly, without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to 20 years' imprisonment, and I declare that you serve a non-parole period of 16 years' imprisonment. I declare that you have already served by way of pre-sentence detention a period of 356 days.

43 I declare, pursuant to s 6AAA of the Sentencing Act, that were it not for your plea of guilty, I would have sentenced you to a sentence of 23 years' imprisonment with a non-parole period of 19 years' imprisonment.

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Cases Cited (1)