Crown v Accused

3 On 22 November 2023, I heard submissions from the prosecutor and by way of plea from your counsel on your behalf. I also received two victim impact statements to which I will shortly refer.

4 Manslaughter is a common law offence for which the current maximum penalty is 25 years' imprisonment.[1] That maximum sentence came into effect in 2020 and the declared purpose of increasing it, according to the Attorney-General, was 'to ensure the range of sentencing available to courts appropriately reflects the broad range of culpability we see in these cases.'[2]

5 Manslaughter is also a category 2 offence under the Sentencing Act 1991 which means I am required to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of the subsection exist.[3] Such circumstances do not arise. I must now sentence you for this offence. Manslaughter is not a standard sentence offence.

6 The deceased was aged 73 years at the time of his death and lived alone. He would regularly go to the Shell service station at Strathmerton in the early hours of the morning for company and to obtain something to eat. He did that on the night of the incident in which you were involved and had been conversing with the service station attendant before you arrived. The deceased and you were not known to each other.

7 At approximately 5:00pm on Saturday, 7 August 2021, you and your then partner, Fiona Taylor, went to the home of your cousin Craig Bristol, who lived on a property approximately 13 kilometres from the township of Strathmerton.

8 You had arranged to have dinner and drinks with Bristol and his partner Julianne Ross-Soden. You had planned to stay the night, as they were going to be drinking alcohol.

9 At the dinner, you consumed a large amount of beer and smoked cannabis as you told the police when later interviewed. There had been some friction between those at the dinner and it was decided that you, your partner, her son and your daughter would leave.

10 Although almost certainly over the legal driving limit, the alcohol you had consumed did not prevent you from driving and after leaving Bristol's property and, needing fuel, you then drove to the Shell service station in Strathmerton, which was about a 10 kilometre drive away.

11 During the trip, you were angry and upset following the earlier friction and you and Taylor were arguing.

12 In the meantime, the deceased had gone to the service station at about 12:40am. The attendant at the service station was Brenton North. The deceased and North spoke for about 10 minutes before you pulled into the service station at approximately 12:49am. The service station had a closed circuit television ('CCTV') system, which was operating at the time of the incident and recorded most of what happened. It captured you pulling into the service station at that time.

13 Inside the shop, the service counter was located at the rear of the building, facing out towards the forecourt. Fridges containing drinks were located to the western side of the counter. To the east of the counter was a large open doorway, which led to the so-called 'truckie's lounge'.

14 Cameras captured the forecourt, the entrance to the interior of the store including the service counter, and the lounge area. The CCTV evidence was played to the jury and was quite graphic in depicting the effect of your actions on the deceased and the level of aggression you displayed towards him.

15 However, before this all happened, you pumped fuel into your vehicle, while Taylor and Caitlin entered the shop. The attendant, North, was behind the service counter, and the deceased was standing opposite North, with his back to the forecourt. Taylor entered the store with Caitlin and walked towards the drink refrigerators. Taylor and Caitlin were in the store selecting drinks and food items when the deceased asked how they were. Caitlin responded, 'yeah, really good.' Taylor then asked the deceased if he had been looking at 'the kid' and then called him a paedophile which it is accepted he was not. She told the deceased to 'stop looking at her'. Taylor placed a number of items on the counter to purchase, including a one litre bottle of red Maximus isotonic sports drink. Caitlin then left the store and returned to the car.

16 You entered the store just after Caitlin had left. By this time, the deceased was standing in the doorway between the store and the 'truckie's lounge'. Taylor was abusing the deceased saying something like 'fuck you' and 'I'll rape you' in an aggressive manner. North scanned Taylor's items through the cash register, in an attempt to get her out of the store. You then approached the counter and said to the deceased, 'do we have a problem?' The deceased replied to the effect that they didn't have a problem. Taylor told you that the deceased had been looking at Caitlin. Taylor was continuing to behave aggressively and erratically, directing abuse towards you, North and the deceased. However, undeterred, at times you joined in Taylor's verbal abuse of the deceased.

17 At approximately 12:55am, you approached the service counter from behind Taylor and picked up the full one litre bottle of sports drink. You moved the bottle to your right hand and threw it at the deceased's head, stepping towards the deceased as you released the bottle. The deceased was standing just inside the 'truckie's lounge', when he was struck to the left side of the head with the bottle. The deceased's glasses were dislodged and fell to the floor.

18 North was not able to see the deceased at that time but heard him yell out. You then aggressively approached the deceased, who was attempting to regain his balance, and kicked him in his left hip, causing him to fall heavily to the ground. Taylor came into the lounge and pushed you away from the deceased towards the counter. Cooper Taylor-Richardson, Taylor's son, who had entered the store shortly before you threw the bottle, attempted to usher you and Taylor away. The deceased remained on the floor in the lounge area. You then re-entered the lounge and intentionally stomped on the deceased's glasses, which were lying on the floor, before returning to the main part of the shop.

19 Shortly after, you returned to the lounge area for the final time, and kicked the bottle of Maximus sports drink, which had come to rest on the floor, into the deceased's upper leg/groin area. You then stood over the deceased and berated him until he was pulled away by Taylor-Richardson. Taylor then entered the lounge and stood over the deceased and abused him until being pushed away by Taylor-Richardson.

20 You and the other two remained in the store for a short time. Taylor-Richardson asked North where he kept the cameras and he replied he did not know where they were kept. You said to North that 'you'd wanna wipe that off the tape or I'll be coming back'.

21 The three of you left the store and returned to your vehicle and drove away at approximately 12:59am.

22 North went the back way through the storage area out into the truckie's lounge to check on the deceased, who was still lying on the floor. The deceased was conscious and responsive. North called Triple Zero to request assistance. Whilst he was on the phone to emergency services, he noticed the deceased had blood inside his left ear. North attempted to roll the deceased onto his left side, following the instructions from the Triple Zero operator, however the deceased was in too much pain and was unable to move.

23 North also called his co-worker, Montana Kelly, and arranged for her to attend the service station to assist. Kelly attended and spoke with the deceased and attempted to make him comfortable while waiting for emergency services to arrive.

24 At approximately 1:30am police arrived at the service station and spoke with the deceased, who was able to recount the assault and advised he did not know the identity of the accused, you.

25 The deceased was initially transported to the Goulburn Valley Hospital ('GVH') but during the drive to hospital the deceased developed signs of expressive dysphasia. He arrived at 3:53am. On arrival, he was observed to be suffering a left earlobe laceration, left-sided chest wall tenderness and right lower quadrant tenderness. A CT trauma panel was completed which showed a fractured pelvis, a diffuse haematoma in the right obturator internus muscle and in the extraperitoneal adipose tissue adjacent to the bladder. A subdural haematoma was observed adjacent to the left parietal lobe measuring up to 13 millimetres in depth. After discussion between the GVH staff and Royal Melbourne neurosurgery, it was decided that the deceased be urgently transferred for treatment at the Royal Melbourne Hospital ('RMH').

26 The deceased was admitted to the RMH at 11:52am on 8 August 2021. Upon admission and during his inpatient stay of approximately 11 weeks, the deceased presented with the following issues:

(a) subdural haematoma and left frontoparietal intraparenchymal haemorrhage without midline shift;

(b) right superior pubic ramus fracture;

(c) haematoma of the right obturator internus muscle and extraperitoneal fat adjacent to the bladder; and

(d) left earlobe laceration.

27 The deceased man ultimately died on 28 October 2021 and clinically, the possible cause of death was deemed to be 'brain injury secondary to multiple intracranial haemorrhages in the setting of alleged physical assault and subsequent rebleed in the setting of anticoagulation for pulmonary embolism'.[4]

28 You were arrested at Taylor's address in Numurkah at approximately 2:40pm on 8 August 2021, and conveyed to the Numurkah Police Station. You participated in a recorded interview with police.

29 During that interview you admitted to being present at the service station with Taylor, Taylor-Richardson and Caitlin. You initially told police that when you walked into the service station with Taylor, you saw the deceased trying to grab Taylor, so you pushed the deceased. You told police that the incident was 'all a bit of a blur' because you had had had a few drinks. When you were advised the incident was captured on footage, and the allegations put to you, you responded 'if that's what happened, that's what happened.' You said you had drunk a box of Carlton Dry, a couple of shots of Jack Daniels and smoked some cannabis the night before.

30 Following the death of the deceased on 28 October 2021, you were again arrested by police at approximately 7:30am on 3 November 2021 at Taylor's address and conveyed to the Shepparton police station.

31 You were again questioned and told investigators that the events were 'pretty blurry' and that you had been 'very intoxicated' at the time of the incident. You said that as far as you could remember you had pushed the deceased, but that you had been told you threw a bottle. You accepted that whatever happened on the CCTV footage happened. You admitted that your actions were both unlawful and dangerous.

32 Two victim impact statements were filed, one on behalf of Suzanne Heppell and the other on behalf of Brenton North.

33 Ms Heppell read her very compelling statement aloud at the plea. She was the deceased man's sister and she and the deceased were close. She described the feelings of devastation and the emotional and social effect on her as a result of his death. The effect on her continues and will do so for some considerable time. It has changed her and her outlook on life. She also described the impact of the deceased man's death on the community of Strathmerton, where he was the Postmaster for 45 years and an essential part of many people's lives.[5]

34 Mr North's statement was filed with the Court and I have read it. He states that he felt scared during the incident and that he continues to be affected by it.[6] He was concerned for Mr Burke and wanted to make sure he was ok. This man's statement was brief but he was a witness to this violent incident and I have no doubt that the memory of it will be with him for a long time.

35 I have taken the victim impact statements into account in determining the sentence I should impose on you.

36 Your trial was conducted on several bases but one of those was that your actions were not the cause of Mr Burke's death. Clearly, the jury were satisfied beyond reasonable doubt to the contrary. Dr Baber, the forensic pathologist, though deferring to Dr Iles in relation to the examination of the brain, described the cause of Mr Burke's death as:[7]

Brain injury secondary to multiple intracranial haemorrhages in the setting of alleged physical assault and subsequent re-bleed in the setting of anti-coagulation for pulmonary embolism.

37 I sentence you on the basis of that evidence and the presumed acceptance of it by the jury.

38 You were born on 27 November 1978, in Footscray. You grew up in the western suburbs of Melbourne with five siblings. Your father worked for the railways and your mother was a bank teller.

39 Your childhood was normal prior to attending school, in that it was a functional loving family. However, it was at school where you struggled. You did not like it and you did not do well academically. You found it difficult to concentrate. You left school after year two and you were home schooled for grades three and four, returning to school for grades five and six.

40 Ultimately, your education finished at the age of 14. The thing about school you had enjoyed was engaging in team sports, including hockey and football. After leaving school and with your family having moved to the country, you worked in a variety of jobs including fruit picking, painting, labouring and fencing.

41 At 17 years old you met your first wife, Lauren. You were together for 15 years, had purchased a house and had three children. Ultimately, that marriage broke down due to mental health issues you encountered after the Black Saturday bushfires.

42 When you were 22 years old, your brother, who was three years older, was assaulted and bashed by five men. A couple of days later, he was in a car accident. He suffered significant injuries, including head injuries and received three operations on his brain. It was determined that he could not survive and treatment was terminated. You have struggled significantly with the loss of your brother.

43 In 2002, when you were 24, you joined the Department of Sustainability and Environment ('DSE') in Nathalia, working in fire prevention. That was a job you enjoyed until the Black Saturday bushfires in February 2009. You were involved in clearing up after those fires in the Marysville area and saw some terrible sights that have traumatised you. By November 2009, you were struggling with that to the point that you could no longer cope, your marriage broke down and you disconnected from your family.

44 You later had another partner with whom you had another child, Caitlin, who was present with you on the night of this offence at Strathmerton. The relationship with Caitlin's mother did not last, and you became the primary carer for Caitlin. Your last relationship was with Ms Taylor. I accept that the sentence of imprisonment that must be imposed on you will be very difficult for your daughter and, in that context, for you. Sadly, she was also present on the night of these events and I suspect has suffered some consequence, but now will be without you for some time.

45 You have been in custody for a significant period since you were charged. You were granted bail on 31 March 2023 which you breached. Your bail was revoked on 28 July 2023. In custody, you are completing a Certificate in Horticulture and you work as a groundskeeper which you enjoy. This is the first positive learning experience you have had. You maintain regular contact with your family, particularly Caitlin, who is cared for by your sister.

46 Professor Ogloff assessed you on 28 September 2023. He reported to the Court in detail about his findings.[8] He says that based on your self-report, the information your sister provided, and the medical file material available, you meet the criteria for diagnoses of post-traumatic stress disorder ('PTSD'), with depression and anxiety.

47 He reports that the functional consequences of PTSD on you have been consistent with the effects often seen among those so affected. For example, while you had long-term employment and relationships prior to the onset of the PTSD, you exhibited a high degree of impairment in social, occupational and physical functioning after the onset of the illness. Your quality of life was greatly reduced. You became avoidant, including becoming estranged to some extent from loved ones. Your alcohol abuse was concomitant with these symptoms and your life spiralled downward.

48 According to Professor Ogloff, you also meet the clinical criteria for alcohol use disorder, severe for many years whilst living in the community. At the present time he says you meet the criteria for alcohol use disorder, severe, in early remission.

49 It is important to note that Professor Ogloff's testing of you reveals that your anger profile is within normal limits and you do not display signs of psychopathy. I take all of this into account as part of your personal circumstances and it is significant. However, no reliance was placed by your counsel on Verdins[9] or the cases on the same topic that followed and refined those principles.

50 Your Victorian criminal history is relatively minor, lasting from 1997 to 2017 and includes offences like criminal damage, breaching a Family Violence Intervention Order and resisting arrest. You also have a history of offending interstate which includes relatively minor assault offences and failing to leave premises. It is said by your counsel that it is a relevant but limited history. Prior to your remand in the present case you had not previously served any time in custody.

51 Whilst your activities in custody stand to your credit, it is necessary to be guarded about your prospects of rehabilitation after your release. The PTSD condition from which you suffer and which has been at the basis of your life's deterioration, still requires treatment which you have been disinclined to pursue. Also, given the diagnosis of alcohol use disorder, Professor Ogloff is concerned that if you were to resume drinking on your release, there is a significant risk that your rehabilitation would be impeded.

52 However, your time in custody has seen progress. You have completed a number of courses including in substance awareness, On-Track, Mapping a Way Forward and a Certificate 2 in Horticulture which you have been able to put into practice as a groundsman. You are supported by your sister who wrote a reference and friend Kristylee Britton who did the same. I have read both of those which, among other things, express continuing support for you.

53 I have been referred to several cases in the cause of ensuring that current sentencing practices are understood. As is often observed in relation to this offence, the breadth of conduct capable of constituting manslaughter is substantial. Almost all the cases referred to by your counsel preceded the increase in the maximum penalty in 2020. Many of them were sentences imposed after a plea of guilty. Nonetheless, I have paid attention to them. I have also noted the sentences for manslaughter since 2020.[10]

54 The objective seriousness of your offending is high. Your attack on the deceased man was entirely unprovoked. He was completely innocent of any wrong-doing. He was not a paedophile and had not been behaving like one. Even after you had attacked him, he did not try to retaliate. Physically, he was vastly inferior to you, and such would have been obvious to you. The prosecutor submitted that I should be satisfied beyond reasonable doubt that when you threw the bottle at the deceased, you intended to hit him in the head. I am certainly satisfied that when you threw the bottle at Mr Burke, which you did with considerable force, you intended to hit him but I cannot be satisfied beyond reasonable doubt that you had a specific intention to hit his head with the bottle.

55 Although your conduct was spontaneous and did not necessarily carry the expectation that throwing a full plastic bottle at someone would result in the devastating consequences of it, that action was followed by what, on any view, was the despicable action of kicking the deceased with significant force while he was still on the ground. Consistently with the way you had acted, you berated him, smashed his glasses and left him lying on the floor, making no gesture of assistance to him at all. It was obvious he was then in some medical trouble.

56 The cause of his death was the combination of everything that occurred on this night which resulted in haemorrhages to the brain which developed over the time he was under treatment.

57 However, I accept that you now are remorseful to a degree for what happened and have genuine regret about it, not just because of your present circumstances. Overall, you co-operated with police requests for interview although your acceptance of responsibility for what occurred, and the death of the deceased was very limited.

58 Your periods of remand fell within the Covid-19 pandemic and the onerous conditions placed on prisoners during that time and the prosecution accept, as do I, that this is a relevant and significant matter to be taken into account.

59 The considerations of specific and general deterrence together with just punishment, denunciation and the protection of the community are all relevant to the sentence to be imposed on you. I want to say yours is the kind of violence that society abhors but I am no longer confident that is true. The incidence and acceptance of gratuitous violence shows no sign of diminishing as middle-aged men, particularly, feel the need for some kind of machismo acceptance regardless of who the victim is. Very often it is women. In this case, a vulnerable man in his 70s who had no hope of defending himself.

60 However, taking into account the circumstances of the offence and your personal circumstances, particularly including your post-traumatic stress disorder, in my opinion, an appropriate sentence is that you be imprisoned a period of 8 years for the crime of manslaughter. I will fix a period of 5 years to be served by you before you are eligible to apply for release on parole. That period of parole is something you should make good use of to deal with your substance abuse issues and continue to obtain assistance for your psychological issues.

61 I declare that your pre-sentence detention is a period of 652 days not including this day and direct that such period be reckoned as a period of imprisonment already served pursuant to section 18 of the Sentencing Act 1991.

[1] Crimes Act 1958 (Vic) s 5.

[2] The Hon Jill Hennessy, 'Legislation to increase manslaughter sentences passes' (Media Release, 4 June 2020).

[3] Sentencing Act 1991 s 5(2H).

[4] Autopsy report of Dr Baber, 4; Depositions, 52.

[5] Victim Impact Statement of Suzanne Heppell, filed 10 November 2023.

[6] Victim Impact Statement of Brenton North, filed 20 November 2023.

[7] Autopsy Report of Dr Baber, 4; Depositions, 52.

[8] Psychological Report of Professor Ogloff, dated 25 October 2023.

[9] [2007] VSCA 102.

[10] Including DPP v Volpe [2021] VSC 353; The Queen v Aliti [2021] VSC 825; The King v Price & Brown [2023] VSC 347; DPP v Griffith [2023] VSC 218.