18 July, 2010

A system failure - Part II

By the 24th of October, Tomi had decided to move to Wollongong. He had no food or clothes, and wanted to get his stuff from Geoff’s place before he moved.

Tomi found Geoff at home, using drugs, and decided to join him. He said Geoff started rubbing his leg and his groin, and told Tomi it was turning him on. He didn’t want to be raped again, he wanted Geoff to leave him along. He got up and went to the kitchen, where he took a knife from a holder next to the microwave. He said he wanted to scare Geoff, so “the thing” would not happen again. He found Geoff standing in the living room, waiting. Geoff came towards Tomi, and Tomi struck out with the knife, intending to scare him. He couldn’t remember where he struck Geoff.

Tomi then searched the unit, grabbing his clothes and a bottle of whisky. He looked for the key but was unable to find it, so he climbed over the balcony. In his haste he left his wallet in the bathroom. At 9:32pm he called ‘000’ from a nearby phonebox:
“Hello, could I get… I would like to report a murder at, um, 11/3 London St, Enmore. Anonymous caller. A murder, someone’s been stabbed”.

The next morning he called Geoff’s unit and left a message on his answering machine. “Hi Geoff, its me, Tomi. I’ll be back home in a week. Ok, bye”.

Around that time Tomi ran into his friend Stone again at the squat in Parramatta. Stone was interviewed and gave the following answers:
“Q: What did he say to you?
A: That he killed someone because he got raped.
Q: What were the words he said to you?
A: He said ‘I done it’.
Q: Were they the words he uttered? ‘I done it’?
A: Yeah.
Q: What did you say in response to that?
A: ‘Done what’?
Q: What did he say?
A: ‘Killed the bloke I was living with because he raped me’.
Stone said he told Tomi he should turn himself in to police.

On the 26th, two days after the killing, Tomi again called ‘000’ from a phone box near Geoff’s house at 7:25pm. He said “Hello, there’s been a murder at 11/3 London St, Enmore. They’vekilled a person, um, I dunno. I done it.”

As it happened, police arrived at the apartment block at around 7:30pm that evening, responding to the concerns of Geoff’s colleagues. Tomi approached the police and told hem he lived at Unit 11 with Geoff. He said he’d been camping for a few weeks and just got back. He went back to the police station for an interview, and Detective Jackson came out to tell him arrangements had been made for an independent adult to be present when he was interviewed, as he was a minor. Tomi looked at Det. Jackson and said “I stabbed him”. Detective Jackson said “What”? Tomi repeated “I stabbed him. I stabbed him ‘cause he was fucking me up the arse”.

In his interview, Tomi said “well, a while back Geoff got me stoned on drink and drugs and fucked me up the arse twice. Last Thursday, after I had drunk half a bottle of Scotch, Geoff kept touching me on the leg and saying ‘you’re making me horny’ so I got up and went to the kitchen and cut his throat and stabbed him a few times”.

Geoff was found lying in the kitchen, with blood all through the unit, suggesting the attack began in the lounge. He was nude, and was probably nude when Tomi attacked him. There was evidence that suggested he was often nude at home.

Psychologists felt Tomi was suffering from an ‘abnormality of mind’ at the time of the stabbing, due to his inability to recall parts, the differences in the details he provided and the nature of the wounds.

There was a 13.5cm cut to Geoff’s throat, and a stab wound to his head, which penetrated the skull, but not the underlying membrane. He also had four stabs in the upper right of his back from 9-18cm, three of which penetrated bones. All four stabs penetrated the lungs, the loss of blood proving fatal.

The injuries suggest that Tomi lost control.

Tomi was put on trial for the murder of Geoffrey Boyson. They jury found him not guilty of murder, but guilty of manslaughter.

Because the jury do not give reasons for their verdict, it is up to the Judge to then work out why they came to such a decision. In Tomi’s case, there was evidence of both ‘provocation’ and ‘diminished responsibility‘, either of which would give the jury grounds to reduce the charge from murder to manslaughter.

Both the Crown and the defence agreed that the defence of ‘provocation’ was established in this case. The law states that a killing is done under provocation where a person loses self-control because of another person’s conduct or behaviour towards him or her, and this can include words or gestures - it does not have to be a physical attack. The test for the jury, is whether a reasonable person, not drunk, would have also lost self-control if he or she was in the killer’s shoes. In this case, being in Tomi’s shoes meant someone from an emotionally deprived background, let down by those who were obliged to take care for him in his early years. The only difficulty was the fact that he had been drinking with Geoff before the incident.

Nevertheless the Judge accepted that provocation had been established, and commented that in such a case, a loss of self-control is more understandable and excusable than for the vast majority of the community.

Tomi’s lawyers also argued that he had a defence of ‘diminished responsibility’. To prove this they had to show two things: that at the time of the killing Tomi had an ‘abnormality of mind’; and that this ‘substantially impaired his mental responsibility’. All psychiatrists agreed, as did the Crown, that Tomi suffered from severe psychiatric issues arising from his background. The psychologists interviewing him for court largely agreed with the conclusions of other medical professionals throughout his life. One wrote “at no time was I able to detect any of the warmth and empathy that I would normally expect in interactions with a fellow human being. I consider this abnormal, even after making due allowance for the fact that he is amidst his trial for murder… In summary, Tomi has gross emotional coldness, shallow affect and lack of empathy, a persistent failure to confirm to social norms, a reckless disregard for the safety of others and lack of remorse. Taken together, this is indicative of gross psychiatric disturbance.”

The real issue therefore, was whether this really affected his level of criminal responsibility for his actions. The Crown argued that it did, saying Tomi had been drinking, and made a conscious plan “to scare“ Geoff, after which he spent time collecting his things and other items from the flat before leaving through a window.

One doctor commented: “If Tomi’s version is accurate, his ability to exercise control over his physical acts at the time of the alleged killing did not appear to be impaired. According to him, he sat in the kitchen for ten minutes pondering what to do before he committed the stabbing. Admittedly, [Geoff] had six stab wounds whereas Tomi did not suffer any significant injury and told police that [Geoff] did not fight back. However I do not feel we can conclude from this that the attack was one committed under impaired control. He did not appear unduly prone to impulsive behaviour.”

However, another doctor stated: “His capacity to judge his situation correctly and control his impulse to kill would have been substantially impaired. Unlike an ordinary person, his personal boundaries would have been grossly disrupted by the cumulative impact of childhood sexual and physical abuse, gross emotional deprivation, institutional abuse, and life on the streets.”

The Judge eventually rejected the Crown’s arguments, and found that Tomi did have diminished responsibility for his actions. However his Honour had some reservations about this, particularly at the sentence hearing, when Tomi was described as laughing, smiling and making eye contact, in stark contrast to the psychiatric symptoms he displayed during the trial. The Judge questioned whether Tomi had in fact been putting on an act, and queried whether there really was an abnormality of mind, but eventually gave him the benefit of the doubt.

Since his arrest in 1996, Tomi’s criminal behaviour had not improved. The following year he was caught starting electrical fires, and escaped fro police. Although he had been granted bail, he was returned to juvenile custody. He improved in the middle of the year following visits from his natural father, but in September when his father visited with the rest of his family (step-mother and two step-sisters) Tomi escaped once more. He emptied a fuel bowser and set it alight, but luckily the damage was quickly contained.

When handing down his sentence, the Judge felt that further custody would not be of any benefit to Tomi - he would be at risk of further institutionalisation, and would have access to illicit drugs. He was supported by the ‘Youth Off The Streets’ program and Father Riley, which offered a supportive family environment with a zero-drugs policy and a positive peer culture. Tomi had shown real progress in his time there, completing his school certificate and studying for his HSC.

Despite Tomi’s early attempt at creating an alibi for himself (leaving a message on Geoff’s answering machine saying he was camping), and his proud boasts that he had eliminated “a faggot”, the Judge found that Tomi was genuinely remorseful for his actions, as seen in his ‘000’ calls, his arrival at the unit afterwards to see police, and his early confession.

Tomi was given a four-year good-behaviour bond. The conditions were that he be of good behaviour, take no drugs, drink no alcohol for twelve months, live at YOTS and participate in all educational, vocational, and drug & alcohol programs as ordered. He was to obey all directions of Father Riley, including regarding his consumption of alcohol.

The Crown immediately appealed Tomi’s sentence, on the basis that it was too lenient. It is rare for the Crown to appeal a sentence, as it has a much bigger hurdle to get over - the defence need only show a sentence was a little harsh to get it overturned, but the Crown must show much more than a little leniency, rather it must prove the sentence was ‘manifestly inadequate’ - a much harder test. These appeals are rarely run, and even more rarely successful.

Unsurprisingly, in this case the appeal was rejected.


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