Crown v Accused

2 The maximum penalty for manslaughter is 20 years' imprisonment.[1]

3 On Monday 15 October 2018 Mr Boothey - also known as JJ - was aged 51 years. He went, as was his custom three or four times a week, to the Dandenong Plaza to socialise and consume alcohol with a group of people. He arrived at about 11am and sat on a bench outside the entrance of the shopping centre, drinking beer with friends, until sometime between 2.00 and 3.00 pm. At that time another friend arrived and Mr Boothey socialised with her and her group, drinking Bourbon, before returning to the bench. At about 3.45 pm you approached the bench where Mr Boothey was seated next to two other men.

4 What happened next is captured by CCTV and other video footage[2] as well as described by witnesses.

5 You and Mr Boothey engaged in a heated verbal exchange. He was initially seated but then stood. You were very close to each other. You were both swearing. You called him a dog and threatened to hit him. At one point he put one hand on your shoulder and took your hand in his other hand. He then sat down. You walked off.

6 At about 3.48 pm you again walked towards Mr Boothey. He stood up and walked towards you. You placed a bottle you had been carrying on the ground and took up a boxing stance with both fists held at chin height. You accept that the intention to assault Mr Boothey was formed at that moment.[3] After extending his arms outwards at shoulder height, Mr Boothey also took up a boxing stance. You immediately threw a punch to Mr Boothey's face, which caused him to step back. He then moved towards you and pushed you back twice, but stumbled as he did so.

7 You stepped forward and again punched Mr Boothey to the face. The blow was of sufficient force to cause him to fall backwards and hit his head on the pavement.[4]

8 In the immediate aftermath, when Mr Boothey was motionless on the ground, you were heard to say that he deserved it and that you were not going to wait for the police. You did not. You left the scene with your partner, entering the shopping centre. When advised by security guards to leave you became abusive and ran away, pushing bystanders as you did. Ultimately you were arrested by police after running through the carpark. You were found to be in possession of a small amount of white crystal powder and a glass pipe.

9 In a record of interview conducted that same day[5] you said that Mr Boothey had 'got in your face' and was drunk. You had told him to get out of your face or you would knock him out. You said that you had hit him because you felt like he was going to swing at you. You said you were sorry for hitting him, but he had caused it to happen. You said you left the scene because you knew the police were coming. You said you had had a few drinks that day, consuming about a quarter bottle of red wine.

10 Meanwhile, Mr Boothey was conveyed to Dandenong Hospital. He was found to have a blood alcohol content level of 0.42%. He had a broken septum and cheekbone as well as lacerations to his nose and a nose bleed. As a result of his head hitting the pavement, Mr Boothey sustained a large acute subdural haematoma which required surgery. He was transferred to Monash Medical Centre for that purpose.

11 Upon arrival he was found to have a severe subfalcine uncal and transtentorial herniation and a non-displaced occipital bone fracture. An emergency right-sided trauma decompressive craniectomy was performed and the acute subdural haematoma was evacuated.

12 Mr Boothey had poor neurological recovery. He had minimal limb movement and could speak only a few words. He remained intubated, ventilated and sedated. He experienced multiple episodes of seizures, hospital acquired pneumonia, a blood clot on the lung and a urinary tract infection. Mr Boothey died on the morning of 27 December 2018.

13 A later post-mortem examination determined that the cause of death was complications from a blunt force head injury.

14 The grief of Mr Boothey's family, not only because of his death, but because of the drawn out manner in which it occurred, is eloquently captured in the victim impact statement of his sister, Tracey. She writes of the pain of seeing her brother in hospital for months, realising that he was not going to make much of a recovery and the very long night her family experienced knowing that Mr Boothey was not going to live through it. Mr Boothey was clearly a loved brother and son, and is dearly missed.

15 It is necessary to say something of your personal background.

16 You are now 37 years of age and were 35 years at the time of the offence. Your childhood history is one of significant abuse and neglect. Your life has been punctuated by itinerancy, substance abuse and interpersonal conflict. You have interlinked and serious psychological, psychiatric and cognitive difficulties. Unsurprisingly, you have an extensive and serious criminal record.

17 Given the relevance of these matters in the sentencing exercise, it is important to examine their detail.

18 Your father has been largely absent from your life. Your mother abused drugs and alcohol and seemingly did so while you were in utero.[6] You were removed from her care aged two. Your childhood was spent largely in various foster homes. You have now lost track of all family members. You are Aboriginal on your mother's side, but you know little of your indigenous heritage. As a boy without a stable home, you were sexually, verbally and physically abused.

19 Your education was fractured. You have learning difficulties. You did not complete year 9.

20 You have never worked in paid employment. You have received a Disability Support Pension since the age of 16. You lack the basic skills to live independently and have had significant periods of homelessness. It is unclear how many children you have fathered. You have had a partner for about the last decade but you do not know her current whereabouts.

21 Your substance abuse issues are ingrained. You began drinking alcohol with your mother during access visits from the age of 10 and you have had a daily drinking habit since the age of 14; some 23 years. You have variously abused cannabis, methylamphetamine and heroin.

22 Your extensive prior criminal history dates from 1999 when you were 16 years of age. The majority of your prior convictions are for offences involving violence. During the last decade you have received a number of gaol terms, often coupled with community-based supervision or justice plans. Your experience of gaol has been particularly difficult, suffering physical and sexual violence whilst in custody. You had last been released from prison just 12 days before the instant offence.

23 I have received two psychiatric reports from Dr Remy Glowinski[7] and a neuropsychological report from Dr Loretta Evans, together with various supporting documents, concerning your intellectual disability and mental health.

24 The effect of the psychiatric evidence is that you have an intellectual disability with a probable superimposed acquired brain injury,[8] a personality disorder, a polysubstance dependence and use disorder and post-traumatic stress disorder.

25 The neuropsychological findings are significant. You have a full-scale IQ of 61, meaning that 99.5 percent of age-matched peers would perform better than you. You are highly impulsive and lack effective problem solving skills. The speed of your cognitive processing is within profoundly impaired ranges. You are unable to apply simplistic reasoning skills because of difficulty interpreting visual cues or understanding information presented verbally. The effect of those findings is also significant. Dr Evans states that your cognitive and behavioural difficulties are consistent with a mild intellectual disability. Your highly traumatic childhood had a negative effect on optimal brain development and emotional equilibrium. The underlying neurobiological vulnerability associated with intellectual deficits is likely to have been exacerbated by your traumatic upbringing and a contributor to your poor frustration tolerance, aggressive outbursts and impulsiveness. You have an underlying neurodevelopmental disorder that is permanent.

26 At the hearing of your plea, there were a number of matters in issue between the parties.

27 The first concerned the level of aggression displayed by Mr Boothey. That issue largely resolved by the prosecutor accepting that Mr Boothey displayed some aggression towards you, as opposed to merely being defensive to your aggression, as well as by defence counsel accepting that you formed the intention to assault Mr Boothey as you placed the bottle on the ground immediately prior to the second confrontation.

28 I sentence you on the factual basis summarised above. You were the instigator of the conflict and confronted Mr Boothey a second time, having formed the intention to assault him. While he displayed some aggression[9] - gesticulating, shouting and swearing - you were undoubtedly more aggressive. And I accept as relevant the facts highlighted by the senior prosecutor, namely the age difference between you and Mr Boothey, and his extreme level of intoxication.

29 The second matter in contention was whether there was sufficient evidence to consider as relevant that you may suffer a Foetal Alcohol Spectrum Disorder. Dr Evans states that your cognitive, behavioural and social difficulties are 'suspicious' of a Foetal Alcohol Spectrum Disorder. She makes plain that a diagnosis, although probable, cannot be conclusively determined in the absence of verification of the details of your mother's alcohol consumption during pregnancy. That verification is now impossible.

30 The third matter in contention is similar; the relevance of the probability of a superimposed acquired brain injury on top of your intellectual disability. Dr Glowinski states that your history of substance abuse and recurrent head injuries is suggestive of a 'reasonable probability' that you have such a brain injury which, if present, would have the effect of worsening an already compromised level of cognitive functioning.

31 I accept the submission of the senior prosecutor that there is insufficient evidence to accept as proven that you have a Foetal Alcohol Spectrum Disorder or an acquired brain injury. Nonetheless, the evidence establishes that you suffer profound cognitive, psychological and psychiatric deficits. Your neurodevelopmental disorder has been present since birth and is permanent. You have had an appallingly traumatic upbringing which has negatively and seriously impacted upon you. The suspected Foetal Alcohol Spectrum Disorder and acquired brain injury would be but two more particulars of that already well demonstrated history.

32 I turn now to consider the various factors relevant to the sentencing exercise.

33 It is often observed that the offence of manslaughter can be committed in a variety of ways and by a variety of offenders. Counsel on your behalf submitted that your offending should be considered low to mid-range in terms of objective gravity while the prosecutor submitted that the offending was correctly characterised as serious.

34 As the Court of Appeal has observed, such labels are often unhelpful.[10] I find them so in this matter. Rather I consider the following matters to be relevant to the assessment of the objective gravity of your offence.

35 First, that you were the instigator and more aggressive participant in the dispute. Mr Boothey was also a participant in the dispute.[11] Second, that Mr Boothey was older and clearly intoxicated. Third, that you were intoxicated. Fourth, that you began the confrontation in a busy public space in the mid-afternoon. Fifth, that you hit Mr Boothey twice. The second punch was particularly hard, causing Mr Boothey to fall backwards and sustain a catastrophic brain injury. Sixth, that once Mr Boothey had fallen to the pavement you gave no assistance to him. Rather, you blamed him and fled the scene. Seventh, your behaviour was impulsive and of short duration. Eighth, you placed the bottle on the ground prior to your actions. That is, no weapon was used by you.

36 As a consequence of your actions, Mr Boothey's family endured two months' distress in observing his decline and eventual death.

37 It follows that general deterrence, just punishment and denunciation are all relevant sentencing considerations. Alcohol fuelled violence and 'one punch' manslaughters are prevalent and of great concern to the community.[12] Your drunken impulsiveness took the life of another human being. Instances of such behaviour are to be met with both the condemnation of this Court and significant penalty.

38 Given your serious and extensive prior criminal history for violence, specific deterrence is also relevant. You offended a mere 12 days after your release from prison.

39 I take into account your plea of guilty made after committal. Your plea involves an acceptance by you of your actions and shows a willingness to facilitate the course of justice. It has utilitarian benefit, particularly at the present time in light of public health concerns regarding the COVID-19 virus.[13] It has also spared the family of Mr Boothey the ordeal of a trial.

40 I accept that your plea demonstrates a measure of remorse on your part. I also accept that your expressions of contrition, made during the record of interview (when Mr Boothey was still alive) and to each of Dr Glowinski and Dr Evans, to be genuine notwithstanding that they were tempered somewhat by your minimisation of your own behaviour. I take that to be a reflection of your cognitive and emotional difficulties as to your perception of Mr Boothey at the time of the incident and in your thinking about the confrontation since.

41 I also take into account your highly deprived background. Your formative years were nothing short of tragic. The effects of those years still reverberate in your life. In accordance with the principle enunciated in Bugmy v The Queen,[14] I consider your moral culpability to be appreciably reduced and, consequently, to ameliorate considerations of denunciation and deterrence, both general and specific.

42 However, as also follows from Bugmy, your inability to control your violent response to frustration and lack of effective problem solving skills increases the importance of protecting the community from you.

43 In addition to and separate from the Bugmy principles, both parties submit that your intellectual disability triggers the application of the Verdins principles.[15] I agree. The Verdins principles applicable to you decrease your moral culpability and influence the formulation of a just sentence by ameliorating considerations of denunciation and deterrence. But, as I have already said, the protection of the community remains an important consideration.

44 Further your particular difficulties make you vulnerable in a custodial environment such that your experience of prison will be more burdensome than for a prisoner who does not have those difficulties. You are extremely isolated. Since your remand you have enjoyed not a single personal visit nor made or received a single personal phone call or received an item of mail. You have been victimised and sexually assaulted. The unchallenged evidence is that your Post Traumatic Stress Disorder is largely referrable to incidents of sexual assault in custody. You exhibit self-harming behaviours. You are kept in protective custody.

45 Your prospects for rehabilitation are poor. You have a constellation of cognitive, psychological and psychiatric factors that have found expression in a violent history, anti-social personality traits and recidivist patterns. The evidence submitted on your behalf notes that your deficits are life long and your tendency to violently respond to frustrations is firmly entrenched. Your offending is intricately linked with your ongoing drug and alcohol issues. While you are now sober in custody, you have an unrealistic view of your ability to remain so upon your eventual release. As accepted by your counsel, any modification to your ability to react to stressors appropriately cannot occur without intense and prolonged intervention.

46 Both Dr Glowinski and Dr Evans propose that your prospects of rehabilitation on your eventual release would be enhanced if the core of any release plan was supported and supervised residential care under the auspices of Disability Care and the consolidation and establishment of an NDIS Plan implemented in the community. It is to be hoped that consideration is given to these proposals at the appropriate time. As submitted by your counsel, the protection of the community is ultimately best served by your reform, if possible.

47 It was submitted that the effect of the restrictions in the wake of the COVID-19 pandemic will make your time in prison more burdensome, particularly due to worry and the cancellation of therapeutic courses.[16] The prosecutor submitted that the COVID-19 situation does not, as a matter of principle, mean that every prisoner should get a sentencing discount as every prisoner is subjected to the same limitations. Rather, a prisoner needs to demonstrate that there is some particular hardship to them from those restrictions that makes custody more burdensome for them vis-à-vis the remainder of the prison population.

48 The extent to which the impact of the COVID-19 pandemic restrictive measures may be taken into account as a sentencing factor is dependent upon the facts before the sentencing judge.[17] It may not be of much significance if the offending is serious.[18] An offender whose prospects for rehabilitation are good may be particularly disadvantaged by the cancellation of rehabilitation programs.[19] The risk of contracting the virus within prison may be a source of anxiety, particularly for offenders who are older or at higher risk from COVID-19.[20]

49 On the evidence before me I am of the view that you are unlikely to be negatively impacted by the restricted visitation regime. Given your very guarded prospects of rehabilitation, the cancellation of programmes is of less moment.[21] But, while you are relatively young, you do have a history of asthma and Hepatitis C and your cognitive difficulties will mean that you are less likely to rationally assess the risk of contraction of the COVID-19 virus. Accordingly I give some but little weight to this factor.

50 I have been referred to a number of authorities to assist me with the range of sentences for offending of this type.[22] I have had regard to current sentencing practice.[23]

52 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for seven years. You must serve a minimum of four years and six months before being eligible for parole.

53 I declare that you have already served 546 days of that sentence by way of pre-sentence detention.

54 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of nine years' imprisonment with a non-parole period of seven years.

55 I make the disposal order in the terms sought by the Crown.

[1] Manslaughter is a Category 2 offence. I must impose a custodial sentence unless specified circumstances exist: Sentencing Act 1991 ('Sentencing Act'), ss 3, 5(2H).

[2] That footage was played as part of the Crown opening on the plea. I have watched that footage again. There is no sound to the CCTV footage. There is sound to the footage filmed on the mobile phone of a bystander.

[3] Prior to the plea there was dispute between the parties as to the level of aggression displayed by the deceased. At the hearing of the plea the senior prosecutor accepted that Mr Boothey had been aggressive, but maintained that the accused had been more aggressive. And senior defence counsel made this concession. This is discussed further below.

[4] The part of the incident in which the assault occurred was filmed on the phone of a bystander. That footage has audio. I am unable to hear the sound of Mr Boothey's head hitting the pavement on that footage, but I accept the undisputed evidence of various bystanders that there was a loud crack or 'whack'.

[5] The offence in respect of which the interview was conducted was intentionally and recklessly cause injury. The accused was not reinterviewed with respect to manslaughter after Mr Boothey died.

[6] There was an issue between the parties as to whether you suffered a Foetal Alcohol Spectrum Disorder. I shall return to this issue later.

[8] The Senior Prosecutor took issue with the sufficiency of proof as to the probability of there being an acquired brain injury. I shall return to the matter below.

[9] And therefore it is incorrect to characterise his actions as 'consistently try[ing] to defuse and avoid' - see Prosecution Submissions Upon Plea dated 27 May 2020, [12].

[10] DPP v Weybury [2018] VSCA 120, [34] (Maxwell P and Hargrave JA); Lee v R [2018] VSCA 343 , [31].

[11] Cf Lee v The Queen [2018] VSCA 343 ('Lee'). The prosecution relied upon this case as a useful comparison.

[12] Vincec v The Queen [2018] VSCA 18 ('Vincec'); Lee.

[13] DPP (Vic) v Bourke [2020] VSC 130, [32].

[15] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269 ('Verdins'). The Verdins submission was strictly confined to the accused's mental impairment. I have taken care not to 'double up' the effect of the Verdins consideration vis-a-vis mental impairment and the Bugmy consideration vis-à-vis the accused's background.

[16] Reference was made to Brown v The Queen [2020] VSCA 60 ('Brown') and Wyka & Gardiner v The Queen [2020] VSCA 104.

[17] Brown, [48], Sazimanoska v The Queen [2020] VSCA 66, [48].

[18] R v Phan [2020] QSC 95.

[19] Khoder (No 2) [2020] ACTSC 76, [12].

[20] RC v The Queen [2020] NSWCCA 76, [254].

[21] As already noted, your counsel submitted that your prospects for rehabilitation are largely dependent upon extensive and intensive supports made available to you following your release.

[22] The Crown referred to Lee, DPP v Closter [2014] VSC 484 and Vincec v The Queen [2018] VSCA 18 as relevant comparators. The defence submitted that there were no useful comparators given the global deprivation of the accused.

[23] Including Sentencing Advisory Council, Sentencing Snapshot, Manslaughter, April 2019_._