Crown v Accused

2 The only direct evidence, concerning the circumstances in which Alan Wain sustained the injuries from which he died, consisted of descriptions of the incident given by Mr Wain to witnesses before he died, and, in particular, to his wife Patricia, to the ambulance officer who attended him at his home, to two police members who also attended at his home after the incident, and to a doctor who examined him in hospital. When you were interviewed by the police on 13 June, you said that you had no memory at all of the incident. Subsequently, you also told your mother, in recorded conversations with her, in August and in October 2019, that you had no recollection of the incident, and you also wrote a letter to a friend in November 2019, in which you confirmed that you had no memory of the incident.

3 At the trial, the prosecution was conducted on the basis that your statements to the police, your mother and your friend were truthful, and that your lack of recollection was due to the fact that you had ingested an excessive quantity of drugs in the morning of the incident. However, at the trial, you gave evidence that your recollection had subsequently returned, and you gave an account, in which you claimed that Alan Wain had attacked you, and that any contact, which you had with his head, had been in self-defence.

4 Unsurprisingly, the jury was satisfied, beyond reasonable doubt, that the account, that you gave in evidence at the trial, was untruthful, and that the description of the incident, that Alan Wain gave to the various witnesses to whom I have referred, was truthful, reliable and accurate. I shall therefore sentence you, based on the account given by Alan Wain as to the circumstances in which he sustained the injuries from which he subsequently died.

5 The incident, in which Alan Wain was fatally injured by you, occurred between about midday and 1:00 pm on 2 June 2019 in the front garden of the home in which he lived with his wife Patricia in Boronia Road, Boronia.

6 At that time, Alan Wain and his wife were both at home. Mr Wain heard someone trying to open the front door, which was locked. When he went to the door, you told him that you wished to enter the house, to which he responded, 'No, I don't know you'. You then told him that you had previously lived there, and he repeated that he did not know you. You then turned and walked towards the caravan, which was in the front garden of the premises. Alan Wain told you to get out of the caravan, but you ignored him. He then walked to the steps of the caravan, and he again told you to get out of it, and to leave the premises. In response, you turned around, the expression on your face totally changed, and you punched Alan Wain a number of times to the head.

7 At about that point, Patricia Wain had made her way to the front door of the house. She observed her husband standing at the foot of the steps to the house, with blood pouring down the left hand side of his face. You were standing near the caravan, about three metres away, dancing around on your toes as if maintaining a boxing stance. Mrs Wain told Alan Wain to come inside, and he started to walk up the steps to the house. At that point, you ceased assuming a boxing stance. You went and sat on the bottom step to the house, asked for a cigarette, and enquired as to the name of the road in which the house was located. Patricia Wain went back inside the house and telephoned the police. When Alan Wain told you that the police had been summoned, you went back inside the caravan, collected a jacket and bag that you had left there, and walked off down Boronia Road.

8 The police arrived at the premises shortly after 1:00 pm. After they had spoken to Alan Wain, an ambulance was summoned. At that time, Mr Wain was fully conscious, but he was observed to have a laceration to the left forehead and bruised lips. As a precaution, he was conveyed by ambulance to the Angliss Hospital, where he remained under observation for some ten hours, before being transferred to the Knox Private Hospital for ongoing management and surveillance. Late on the following day, 3 June, his conscious state deteriorated. A CT scan, that was taken shortly after midnight, revealed that he had a large subdural haemorrhage on the right hand side of the brain. There were also three other sites of intracranial bleeding. As a result of the subdural haemorrhage, the midline of the brain (the falx) had been shifted from the right to the left.

9 As a result of the CT scan, Mr Yi Yuen Wang, a neurosurgeon, undertook an urgent operation on Mr Wain in the early hours of 4 June. He performed a craniotomy, which enabled him to remove the subdural haemorrhage. On doing so, he noted that the sagittal sinus, which is a large draining vein on the surface of the brain, was torn, and he repaired the tear by using a muscle graft.

10 After the surgery, there was, initially, some improvement in Mr Wain's conscious state. However, his condition then deteriorated again, and he was transferred to St Vincent's Hospital. A CT scan on 7 June revealed that he had a further large subdural haemorrhage. Mr Wang again operated on Mr Wain, and drained the haemorrhage. However, Mr Wain never regained consciousness. Following consultation between the medical practitioners and his family, on 19 June, the decision was made to withdraw medical treatment. After the life support was withdrawn, Alan Wain passed away.

11 One of the issues at the trial was whether the blows, that you struck to Mr Wain's head, were a substantial and operating cause of his death. Three expert medical practitioners, including Mr Wang, a pathologist Dr Bouwer, and a neuropathologist Dr Iles, gave evidence on that issue. Their evidence demonstrated that the assault, that you perpetrated on Alan Wain, caused very significant and irreparable damage to his brain. As a result of the initial subdural haemorrhage, significant permanent damage was occasioned to the brain, due to the pressure which occluded the supply of oxygen and glucose that are vital to the survival of the brain. In addition, the capillary veins of the brain had been sheared. When the pressure on the brain was removed as a result of the first operation, the capillary veins then bled, resulting in the second subdural haemorrhage. The medical evidence also demonstrated there was, in addition, a cascade of medical effects that had resulted from the initial trauma to the head which, in combination, led to the death of Alan Wain.

12 Based on that evidence, the jury was satisfied, beyond reasonable doubt, that the blows, that you struck to Alan Wain's head, were a substantial and operating cause of his death.

13 On the plea, an issue arose as to the conclusion which I should form concerning the number of blows that you struck to Alan Wain's head.

14 Immediately after the incident, Alan Wain told his wife, Patricia, that you had struck him four times to the head. He gave the same account to two members of police, and the paramedic, Ms Allen, who attended upon him. Significantly, he also told Dr Navaratnam, who examined him at the Angliss Hospital at 2:30 pm on the same date, that after an intruder had tried to get into his house, he stepped outside to speak to the man, and, in response, he was punched four times to his face. The fact that Alan Wain gave that account, not only to the police, but also to a paramedic and to the medical practitioner who were attending him for the purpose of treating him, lends strong credibility to his account. Taking those matters into account, I am satisfied, beyond reasonable doubt, that you did in fact strike Alan Wain four times to the head.

15 As I have noted, as a result of those blows, there were four sites of bleeding to the brain. Mr Wang, in his evidence, explained that such bleeding could not occur in the absence of a high velocity impact to the head. He explained that the most common cause of a head injury, of the kind suffered by Mr Wain, is a high velocity motor vehicle accident. Specifically, Mr Wang stated that, in order to rupture the sagittal sinus, there would need to be a significant amount of direct trauma to the head. In similar terms, Dr Heinrich Bouwer, the forensic pathologist who conducted the autopsy, considered that a severe degree of force would have been required in order to tear the superior sagittal sinus.

16 It is therefore clear, based on the evidence in the trial, and on the verdict of the jury, that Alan Wain told the truth to the persons to whom he spoke, and that, for no reason at all, and entirely unprovoked, you forcefully punched him four times to the head. At least one of those blows was struck with a significant amount of force. It is also clear, both from the verdict of the jury and the evidence, that your conduct, in punching Alan Wain four times to the head, was dangerous, in the sense that a reasonable person, in the circumstances, would have readily understood that, by assaulting Alan Wain in that way, he was exposing Mr Wain to an appreciable risk of serious injury. You attacked and punched Alan Wain for no apparent reason, while he was doing no more than exercising his rights, to ask you to leave his home and to cease trespassing on it.

17 The circumstances, in which you came to attend at the premises of Alan and Patricia Wain, are not entirely clear. Some three months previously, your sister, to whom you were very close, had passed away unexpectedly. In your state of grief, you had ceased to take the medication that had been prescribed for your longstanding epileptic condition. As a result, on Saturday 1 June, you suffered an epileptic episode. You were conveyed by ambulance to the Maroondah Hospital for treatment. However, later on the same day, you voluntarily discharged yourself from hospital, contrary to the firm advice that was given to you at the time by the medical practitioners who were then treating you. You were picked up from the hospital by a friend and driven to his home, which happened to be next door to the home of Alan and Patricia Wain. There, you proceeded to abuse the medication that was prescribed for your epileptic condition, taking a large dose of Clonazepam, as well as smoking cannabis. Later that evening, you had a disagreement with your friends, and you left their premises. You then, uninvited, slept overnight in the caravan that was at the front of the premises of Mr and Mrs Wain. When you awoke, you then attempted to enter their home.

18 As I have noted, a result of your heavily intoxicated state, you do not have any memory of the incident, notwithstanding the evidence that you gave at trial. On your plea, your counsel, Mr Desmond, submitted that, when Mr Wain approached you at the caravan, and told you to leave the premises, you, in your intoxicated state, might have misinterpreted his conduct, and erroneously believed that he was about to physically assault you.

19 I do not accept that submission. I am not persuaded, on the balance of probabilities, that, when you assaulted Alan Wain, you acted under any such misapprehension. On the contrary, I am satisfied, beyond reasonable doubt, that you did not do so. Specifically, I am satisfied, beyond reasonable doubt, that the account, given by Alan Wain to his wife, was truthful and correct, namely, that when he told you to get out of the caravan and leave the premises, the expression on your face totally changed, and you punched him four times to the head. Your conduct in doing so was entirely unprovoked, and totally gratuitous. After you had struck Alan Wain, and after then assuming a boxing stance, you then sat on the steps to the premises and asked for a cigarette. That conduct was inconsistent with you having any perception that Alan Wain was a physical threat to you.

20 The circumstance, that at the relevant time, you were significantly affected by your consumption of illicit drugs, does not mitigate the seriousness of your offending. As I shall shortly discuss, you have a long and significant criminal record for offences involving violence, a number of which have been committed by you, while you were affected by the consumption of illicit drugs and the abuse of medication that has been prescribed to treat your epilepsy. For that reason, while your intoxication from medication and drugs may provide some explanation for your conduct at the time of the offending, it does not mitigate the seriousness of it, or your culpability for engaging in such violent and dangerous conduct, which has resulted in the tragic death of your defenceless and innocent victim, Alan Wain.

21 The offence of manslaughter, of which you have been convicted, is a serious criminal offence. As I have discussed, it involves causing the death of another person by an unlawful and dangerous act. The maximum sentence for manslaughter is 25 years' imprisonment, which reflects the fundamental seriousness of the offence, and the value which our society properly places on each individual human life.

22 On your plea, it was submitted, on your behalf, that I should regard your offending as being at the lower end of the range of seriousness for the offence of manslaughter.

23 Certainly, your offending was relatively spontaneous and of short duration. You did not use a weapon, and your assault was not carried out in company. However, and on the other hand, you were significantly younger and taller than Alan Wain. For no reason, you struck four punches to his head, at least one of which was inflicted with a substantial degree of force. Your assault on him was entirely gratuitous and unprovoked, so that he had no opportunity at all to defend himself, or to evade the blows which you struck at him. You attacked, and killed, Alan Wain in what should have been the safety and security of his own front garden. In those circumstances, I am not persuaded that your offending should be regarded as being in the lower end of the range of manslaughter cases that have come before this Court.

24 By your violent actions, you have taken the life of a fellow human being. At the time of his death, Alan Wain and his wife, Patricia, were looking forward to their planned retirement together, with holidays around Australia, camping with members of the family, and simply enjoying themselves in their daily lives. By your criminal actions, you have deprived Alan Wain of the opportunity to experience the enjoyment and fulfilment of sharing his retirement years with his wife and family.

25 I have read, and re-read, the victim impact statements of Alan Wain's wife, Patricia, his daughter Tracey, and his son Steven. By your violent crime, you have taken from Alan Wain's family a much beloved and cherished husband, father and grandfather. Your actions have resulted in deep and enduring pain and anguish to them, and their lives have been significantly diminished by his loss, and the circumstances in which it occurred.

26 The victim impact statements are relevant, because they are an appropriate reminder of the tragic effects of the crime that you have committed. While your sentence is to be based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important to keep in mind the impact of the crime that you have committed, and the significant grief and irreparable loss that have been occasioned to his family, as a direct consequence of it.

27 You have a long and extensive criminal record, dating back for more than 25 years, to when you were 18 years of age.

28 The majority of the offences, for which you have been convicted, consist of crimes of dishonesty, such as theft, burglary and robbery. However, you have also been convicted, on a number of occasions, for crimes involving violence, including multiple convictions for assault police. You have served a number of sentences of imprisonment for your past offending. They include the following.

29 In September 1997, you were before the Melbourne County Court on charges that included intentionally or recklessly causing injury, theft, burglary and attempted armed robbery. You were sentenced to a term of 3 months' imprisonment, and you were also placed on a Community Based Order for two years. In March 2001, you were sentenced to 2 months' imprisonment by the Ringwood Magistrates' Court on charges of assault police and resist police. In January 2004, you were before the Melbourne County Court on charges of recklessly causing serious injury, recklessly causing injury and trafficking cannabis. You were sentenced to a total effective sentence of 18 months' imprisonment with a non-parole period of 12 months.

30 In March 2009, you were before the Melbourne Magistrates' Court on multiple charges, including reckless conduct endangering serious injury, assault police, robbery, theft, going equipped to steal and failing to answer bail. For those offences, the court imposed a total effective sentence of 2 years and 6 months' imprisonment. In January 2015, you were sentenced, by the Melbourne Magistrates' Court, to a total effective sentence of 6 months' imprisonment in respect of charges involving dishonesty, and also one charge of recklessly causing injury. In the following year, in February 2016, you were sentenced to 12 months' imprisonment by the Seymour Magistrates' Court on a number of dishonesty charges, and also on charges of recklessly causing injury and assault with a weapon. Finally, on 10 August 2018, you were sentenced to a total effective term of 10 months' imprisonment by the Ringwood Magistrates' Court on charges, that included aggravated burglary, committing an indictable offence while on bail, criminal damage and theft.

31 In respect of your personal circumstances, you were born in May 1977, and you are almost 46 years of age. You have a brother and a sister, but your sister has since deceased. You spent your early childhood years in the eastern suburbs, and, when you were nine years of age, your parents moved home to Olinda.

32 You initially attended Jordan South Primary School, and then transferred to Olinda Primary School, where you remained until the end of Grade 6. You then attended Monbulk High School. During your childhood and early teenage years, there was considerable conflict between your parents, and your father was violent towards both your mother and yourself. At one point, while you were attending Monbulk High School, you ran away from home and lived with your grandparents. During that time, you attended Ashwood College for six months, until subsequently you returned to Monbulk High School, where you completed your education at Year 10 level when you were 15 years of age. At about that time, your parents separated, and your father subsequently moved to Manila.

33 After you left school, you commenced work as an apprentice butcher for a year, but you ceased that employment after having an argument with your employer. You then commenced an apprenticeship as a fitter and turner. However, by then, you had started to abuse drugs, and, as a result, you lost your employment. Following that, you had some employment as a butcher and also as a welder. However, as your criminal history reveals, you have spent a substantial part of the last two decades in custody, and, as a result, you have been unemployed for most of that time. You have not been married, and you have not had any serious long-term relationships for some time.

34 Your life has been dominated by the use of illicit drugs. You commenced consuming alcohol and using cannabis at the age of 12 years. By the age of 14 years, you were indulging in the use of that substance on a daily basis. When you were 17 years of age, you were introduced to amphetamines, and in later years you regularly used methamphetamines. In addition, you have used heroin, GHB and cocaine, and you have abused benzodiazepines. Upon your release from custody in early 2019, you were using cannabis and methamphetamines on a daily basis, as well as engaging in the occasional use of heroin, GHB and ecstasy.

35 From the age of 14 years, you commenced to experience seizures, and you were diagnosed to suffer from epilepsy. You have been, and currently are, on medication to treat the condition.

36 For the purposes of your sentence, you were examined, via video conference, by Mr Warren Simmons, a consulting psychologist, on 28 December 2022. Mr Simmons took a detailed history from you. Unsurprisingly, he formed the view that you have a cannabis and stimulus use disorder, and he considered that it is probable that you would also meet the criteria for substance use disorders involving other drugs. Mr Simmons considered your prospects of rehabilitation to be guarded, in view of the length of time you have spent in custody, the lack of stable relationships and of regular employment in your life, and your long-term history of offending. Mr Simmons expressed the view that you might have some cognitive impairment, and he suggested that a full neuropsychological assessment be undertaken.

37 For that reason, you were assessed by Dr Loretta Evans, a clinical neuropsychologist, on 1 March of this year. Dr Evans took a detailed history from you, and conducted testing that was directed to ascertaining whether you do have an acquired brain injury. In summary, Dr Evans found that you are capable of engaging in day-to-day communications at a normal level, your verbal and non-verbal intellect is within normal functioning range, your processing of verbal and visual information is within normal range, and your reasoning abilities are in the low-average to average ranges. Your capacity to engage in new learning is in the low-average range. Dr Evans further noted that brain imaging has been consistently normal, and that you produce a valid and reliable neuropsychological profile.

38 Specifically, Dr Evans concluded that your cognitive functioning is well within normal limits. You do not have a neuropsychological profile consistent with an intellectual disability, a pervasive neurodevelopmental disorder, an underlying neurodegenerative process, or an appreciable substance-acquired brain injury. You have a normal intellect, and there is no psychometric evidence to suggest the presence of any form of brain injury or compromise, that was a contributing factor to your actions that caused the death of Mr Wain. From a cognitive perspective, none of your skills are within the defective range, and generally, your functions are within the low-average to average range.

39 Dr Evans noted your lengthy history of criminal offending, and your illicit drug abuse, which, she suggested, may constitute a maladaptive way of you addressing the psychological distress caused by the conflict between your parents when you were younger. Accordingly, Dr Evans has recommended that you undertake programs while in custody to address your underlying depressive and stress symptomatology, the events in your childhood, the grief and loss issues following the recent deaths of both your mother and sister, and your tendency to repeatedly quickly relapse into drug use upon your release from custody.

40 Finally, Dr Evans considered that, in view of your significant history of offending, then in the absence of proper therapeutic intervention, and assistance with procuring appropriate housing when you are released from custody, there is an extremely high risk that you will re-offend.

41 The reports of Mr Simmons and Dr Evans are of some assistance in your sentencing. While they do not, of themselves, identify any particular psychological or neurological basis upon which your culpability for your offending might be mitigated, they identify, in clear terms, the pathway, which you must undertake, in order to successfully rehabilitate into society. As Dr Evans has noted, unless appropriate steps are taken in that direction, then there is a very high, if not extremely high, risk that you will reoffend upon the completion by you of the term of imprisonment that I am to impose on you. It would seem that during your term of custody to date, you have managed, by and large, to access, and comply with, appropriate treatment for your epileptic condition. That circumstance, of itself, is a positive indication for your future. Accordingly, I am prepared to accept that your prospects of rehabilitation may not be as bleak as those concluded by Dr Evans, and they may be regarded as guarded.

42 There are other matters which I do take into account in mitigation. First, you were arrested in respect of the present matter on 13 June 2019, and you have been in custody since then. During that time, you were sentenced, on 19 September 2019, to a term of imprisonment of six months for an offence of robbery, which you had committed before the offence in the present case. That sentence was completed on 17 March 2020 (a period of some 180 days). In addition, on 20 July 2020, you opted to serve two days' imprisonment in respect of an infringement notice. Those 182 days do not count as pre-sentence detention in respect of the offences for which I am to sentence you. In order to comply with the principles of totality, I do take into account that, in addition to the period of pre-sentence detention, which will be credited against any sentence that I impose on you, you have also been undertaking those other two terms of imprisonment.

43 In addition, I take into account, as a mitigating circumstance, the difficult conditions of imprisonment that applied since early 2020 as a result of steps taken by the prison authorities to prevent the spread of the COVID-19 virus within the prison population. Those steps included a cessation of personal visits, suspension of access to programs and other courses, and a number of lockdown procedures, which significantly reduced the hours which you were permitted to spend outside your cell. As a consequence, during that period, the time that you spent in custody, from early 2020, was more burdensome for you. While those restrictions have now been largely removed, I do take into account that there is a reasonable possibility that, during the ensuing years, they will be required to be re-implemented in order to protect the prison population, with the result that your circumstances in custody may again become more burdensome.

44 I also take into account, as a mitigating circumstance, that there has been a delay of almost four years since your arrest. While some of that delay was the consequence of an appeal by you against an interlocutory decision concerning the admissibility of the hearsay statements made by Alan Wain, and also due to the need to obtain psychological and neuropsychological reports after your conviction, nevertheless, the fact remains that there has been a substantial period of time from the date of your arrest until your sentence.

45 It was submitted, on your behalf, that you have expressed some remorse, both to Mr Simmons and Dr Evans, when they examined you. In particular, Mr Simmons has reported that you feel 'horrible' for having taken the life of another person, and you accept that your actions led to Mr Wain's death. Dr Evans considers that you are capable of empathy, and that your expressions of remorse and regret are genuine. I have some reservations about whether your remorse is genuine and sincere. The evidence, that you gave at trial, was to the effect that you do not accept any responsibility for causing the death of Alan Wain. With hesitation, and with considerable reservation, I am satisfied, on the balance of probabilities, that you do experience a form of regret for what you have done, albeit that that feeling of regret is limited and heavily qualified.

46 In determining your sentence, for the offence of manslaughter, it is necessary that the sentence, which I impose, be such as to adequately express the condemnation by this Court, and by the community, of the serious and wanton degree of violence by which you took the life of Alan Wain. It is also necessary that the sentence be of sufficient severity so as to provide a clear lesson to others, who might be minded to engage in violence of the kind that you perpetrated in this case. It is important that such persons understand that if they choose to engage in such gratuitous acts of violence, they can expect to be deprived of their liberty to live in society for a substantial period of time. In addition, it is important that the sentence be sufficient in order to ensure that you personally are deterred from engaging in any further such acts of violence.

47 In summary, the offending by you, in committing the offence of manslaughter, was serious. Your conduct involved the violent and wanton assault by you on a smaller and older man, in his own home, with no justification at all. You have a long criminal record, including a series of terms of imprisonment for acts of violence, and for other offences. On the other hand, I have accepted that there are some relevant mitigating circumstances, including the onerous circumstances in which you have been detained, the fact that you have, during that period, served other terms of imprisonment, which will not count as part of your pre-sentence detention, the delay in the conclusion of this matter, and your degree of remorse, albeit that it is particularly limited.

48 In addition to sentencing you for the offence of manslaughter for which you have been convicted, I am also required to sentence you for the two offences to which you have pleaded guilty. At the time of the offending, you were on bail in respect of the charge of armed robbery, for which you were subsequently sentenced in September 2019. The offence of possession of a drug of dependence concerned a quantity of 147 grams of cannabis, which was found on your person when you were arrested, on this present matter, on 13 June 2019. In the circumstances of the case, it is appropriate that the sentences, that I impose on you for each of those two charges, be served concurrently with the sentence that I am to impose on you for the offence of manslaughter, in order that the total effective sentence not exceed that which is just and fair in the circumstances.

49 Taking into account the matters that I have discussed, I sentence you as follows.

50 On the charge of manslaughter, I sentence you to 10 years' imprisonment.

51 On the related summary offence of committing an indictable offence while on bail, I sentence you to 14 days' imprisonment. As I have stated, I make no order for cumulation in respect of that sentence, and accordingly, it will be served concurrently with the sentence which I have imposed on you for the offence of manslaughter.

52 On the charge of possession of a drug of dependence, I sentence you to 2 months' imprisonment. Similarly, I make no order for cumulation in respect of that sentence, so that it will be served concurrently with the sentence that I have imposed on you for the offence of manslaughter.

53 Accordingly, your total effective sentence is 10 years' imprisonment. I fix a minimum non-parole period of 7 years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 1232 days (not including today's date) be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

54 As you have pleaded guilty to the related offence, and to the offence of possession of cannabis, I am required to make a declaration under s 6AAA of the Sentencing Act. But for your pleas of guilty, I would have imposed a sentence of one month's imprisonment in respect of the related offence of committing an indictable offence while on bail, and to a term of 4 months' imprisonment for the offence of possession of a drug of dependence.