Crown v Accused

3 Mr Shaw was found by his sister, Ms Wanita Bryant, and her friend on 14 July 2022. His body was on the floor in his lounge room, covered by a white doona. A subsequent autopsy revealed his cause of death to be multiple blunt force injuries to the thorax.

4 The exact circumstances and timing of Mr Shaw's death remain unknown, although through your plea, you accept responsibility for causing his death.

Background and relationship between the accused and the deceased

5 You were born on 9 March 1969 and were aged 53 at the time of the offending. Mr Shaw was born on 29 February 1972 and was aged 50 at the time of his death.

6 Mr Shaw had been residing at a unit in Sale since November 2021. You had been residing there with him for some months.

7 You and Mr Shaw were known to have a volatile relationship, characterised by physical altercations and drug consumption. There is evidence that you would often 'stand over' Mr Shaw in order to gain access to his bank account.[1] Further, in the lead up to his death, Mr Shaw reported to those around him that you had become angry and caused him injury, or damaged property in the apartment.[2] You have also admitted to previously engaging in physical fights with Mr Shaw, including in the days before his death.

8 Although the exact circumstances of Mr Shaw's death are unknown, your movements in the surrounding days provide some context.

9 On 6 July 2022, you indicated to a visitor, Ms Linda Vardy, at the apartment, that you were Mr Shaw's care worker and that you were not aware of his whereabouts.

10 On 7 July 2022, just after 7:30am, you made two withdrawals totalling $560 from Mr Shaw's bank account.

11 Some time on or before 10 July 2022, you repaid a debt to Ms Francis Joyce. Ms Joyce stated that she hoped you did not 'stand over' Mr Shaw for the money, to which you responded, 'he was breathing when I left'.

12 On 10 July 2022, you made comments to Mr Christopher Geddes and his stepdaughter about the smell of a dead body in your backyard. You repeated these comments to Mr Geddes on a later date.

13 On 11 July 2022, close to midday, you left the apartment. Analysis of the electricity data suggests that the apartment was continually unoccupied from that morning. At 12:47pm, you withdrew $240 from Mr Shaw's bank account and travelled to Mr Jarrod Fehst's home. You broke the news to Mr Fehst that Mr Shaw had died but denied any involvement. You stated that the last time you fought with Mr Shaw was '4-5 days ago' and that Mr Shaw had been dead for 2-3 days. When asked if you had called police, you said words to the effect of 'no bloody way'.

14 Sometime on or after 11 July 2022, you spoke with Ms Joyce and Mr Christopher Blackley. It appears word had spread of Mr Shaw's death. Mr Blackley asked you what you had done to your 'mate' and you responded 'I cracked him once. But he was fine'. You stated that Mr Shaw had been 'ripping [you] off in relation to gear'. You told Mr Blackley that you were arguing with Mr Shaw, who was sitting on the couch, before 'it all went quiet'. You stated that you tried to pick Mr Shaw off the couch but could not, remarking about how heavy 'dead weight' is. When Mr Blackley enquired as to Mr Shaw's whereabouts, you stated that he was still in the apartment and that you had put a blanket over him. You also stated that 'he was cold, he was gone' and that you had not attempted CPR. When Ms Joyce asked if Mr Shaw was okay, you replied 'yeah, I think so, he hasn't moved in two days.'

15 On 14 and 15 July, you made various comments to at least four other associates about Mr Shaw's death, including that 'there wasn't anything [you] could do about it'.

16 You were arrested and interviewed by police on 16 July 2022. During that interview, you admitted to having had a verbal altercation with Mr Shaw regarding a 'shot' of speed, after which Mr Shaw went quiet, cold, and limp. You told police that you gave Mr Shaw a nudge and that he did not respond. Upon grabbing Mr Shaw again, he 'came off' the couch. You said that you touched Mr Shaw's head and it was ice cold. You stated that once Mr Shaw had fallen you thought he had died, although he was not bleeding. You put a doona over Mr Shaw and stayed at the unit for another three days but did not touch him again. You eventually left when you realised 'no one would turn up'.

17 When questioned about the circumstances of Mr Shaw's death, you stated that you could not tell police much and suggested that Mr Shaw 'should've ate more' and that he was falling over a lot in the days leading up to his death. At one point, you suggested that Mr Shaw may have intentionally killed himself. You said that you didn't call police because you 'didn't think it was going to change anything', and that you didn't feel you had done anything bad. You ultimately maintained that you did not know how Mr Shaw sustained his injuries and denied assaulting him.

18 An autopsy was conducted on 15 July 2022 by Dr Joanne Ho, under the supervision of Dr Joanna Glengarry.

19 The forensic pathologists concluded that the cause of Mr Shaw's death was blunt force trauma to the front and back of his thorax. Those injuries included 10 rib fractures (eight on his left side, and two on his right), which were thought to have caused lacerations to his lung, spleen, and omentum. There were also several areas of bruising on Mr Shaw's chest, abdomen and back.

20 Mr Shaw was observed to have further injuries to his face, including fractures to his right cheek, eye socket and nose, and bruising around his left lip, jaw and on his limbs.

21 Dr Glengarry's opinion is that Mr Shaw's injuries were acute, being inflicted at or around the time of his death, but none would have resulted in immediate death.[3] Further, Dr Glengarry noted that the haemorrhaging around the fractures suggested that they occurred ante-mortem.[4]

22 Importantly, Dr Glengarry's evidence was that Mr Shaw's injuries were not consistent with the version of events you gave to police - that is, that the injuries were caused by a single fall from the couch.[5]

23 The autopsy also revealed that Mr Shaw was exhibiting symptoms of 'ketoacidosis'. Dr Glengarry opined that this condition did not materially contribute to Mr Shaw's death, as it appears to have occurred in the 'setting of [Mr Shaw's] injuries' and may not have occurred without the injuries.[6]

24 The Court received victim impact statements from members of Mr Shaw's family.

25 Ms Wanita Bryant, Mr Shaw's sister, is experiencing tremendous grief at the loss of her brother. She requires ongoing treatment with a psychologist and has had to cease work, leading her to struggle financially. She has also - quite literally - been hospitalised and medicated for a broken heart. She describes her brother as bringing so much joy to her life. Now that he is gone, her life will never be the same.

26 Her son, Mr Keith Bryant, speaks of feeling intense anger at the loss of his uncle, who was more like a big brother. He has sought counselling to deal with his grief. He has grown distant from friends and finds it hard to take proper care of himself. Seeing how much Elvin's loss has hurt his mother is 'devastating'.

27 Ms Patricia Shaw, another of Mr Shaw's sisters, says that it is impossible to explain in words how Elvin's death has impacted her life. She describes her brother as a caring, kind-hearted, and generous man. A talented musician, Elvin always brought a smile to his family's faces, especially his nieces and nephews. She struggles to explain to her two sons how their beloved uncle was so brutally taken from them. She is tormented by the thought of her brother's last moments, and the lack of answers.

28 Ms Emma Bryant and Ms Kayleen Gordon, Mr Shaw's nieces, struggle daily with sadness, anger, and confusion. The happy memories of their uncle now haunt them. They speak of their once close family, now strained by an emptiness that cannot be filled.

29 It must not be forgotten that at the core of your offending is the tragic and completely senseless loss of a man who was loved by many, and whose passing has left an indelible sadness and pain. I have referred to the victim impact statements to properly acknowledge and appreciate the enormity and enduring impact of the serious crime you have committed.

31 You were aged 53 at the time of your offending. You are now 55 years old.

32 You grew up in Sale with your parents and two siblings. As a young person, you experienced family violence and physical abuse at the hands of your alcoholic father. Your mother reportedly had problems with anxiety and benzodiazepine use.

33 Your education was marred by your behavioural transgressions, which resulted in suspensions and your eventual expulsion during Form 3. You had brief periods of employment as a young adult but have been unemployed for a significant portion of your adult life.

34 Your parents separated when you were 14. Your mother left with your younger brother and you didn't see her for three years. You and your older sister were left in the care of your father, and shortly after, relocated to the Sunshine Coast.

35 By the age of 15 or 16, you had left your father's home. From this point onwards, you floated between Melbourne, Sale, and the Sunshine Coast.

36 You have a significant history of substance abuse and dependence. Between the ages of 14 and 18, you would reportedly consume a bottle of spirits five days a week. This habit continued up until your remand, at which point you were reportedly consuming 'a dozen ciders' daily. You first used cannabis at age 14 and consumed up to seven grams a day between the ages of 15 and 26. From the age of 25, you commenced using amphetamines and methylamphetamine and reported using 'a couple of points' of ice daily for 30 years. You also reported using LSD and benzodiazepines as a younger man.

37 I have read the reports of Ms Carla Lechner, Clinical Psychologist, and Dr Matt Treeby, Clinical Neuropsychologist.

38 Dr Treeby is of the opinion that you meet the criteria for Stimulant Use Disorder and Alcohol Use Disorder, as well as antisocial personality disorder.[7] Dr Treeby also formed the view that you have a mild acquired brain injury due to long-term polysubstance use;[8] despite this, your intellectual function is in the average range and you do not have an intellectual disability.[9] Ms Lechner and Dr Treeby were of the opinion that you also present with traits of borderline personality disorder.[10] Dr Treeby further indicated that you likely have psychopathic personality features, but that this requires greater evaluation.[11]

39 Ms Lechner opines that your exposure to trauma and neglect at a young age has adversely impacted your social and emotional development and has caused you to develop a number of psychological and behavioural issues.

40 According to Ms Lechner, you have adopted a 'don't care' attitude, are disengaged from the broader community, and as a result, have no real goals or hope for change.[12]

41 You acknowledged to Dr Treeby that you caused Mr Shaw's death, however, you indicated that it was unintended and came as a shock to you. You acknowledged that you have a bad temper and tend to act aggressively in the spur of the moment.[13]

42 You reported to Ms Lechner that you were experiencing low mood in custody, on account of your isolation from your family.[14] This was supported by testing which suggests you are exhibiting signs of severe psychological distress,[15] but sits at odds with your comments to Dr Treeby that you are coping reasonably well in custody.[16]

43 Dr Treeby and Ms Lechner are of the view that you would benefit from treatment in the form of drug and alcohol counselling and therapeutic services to address your unresolved symptoms of trauma.

44 You admit your criminal history, which dates back to 1991 and contains a number of relevant prior convictions. You come before this Court having already served lengthy terms of imprisonment for serious violent offending.

45 On 17 December 1998, whilst residing in Queensland, you were sentenced for charges of assault occasioning bodily harm, indecent assault with aggravation, and rape. You received a term of imprisonment of nine years. This offending involved a protracted beating (using fists and a piece of wood) of the victim, who was your partner at the time.

46 On 15 July 2009, you were sentenced to imprisonment for six years and nine months on charges of aggravated burglary and recklessly causing both injury and serious injury. This offending involved you throwing multiple punches at one of the victims, which resulted in fractures to his face and legs.

47 On 20 January 2016, you were sentenced to two years imprisonment on a charge of intentionally causing injury. This offending involved a stabbing committed by you and your co-accused against a friend who had been living with you at the time.

48 The seriousness of your criminal antecedents, and their similarity to the offending currently before the Court, is of grave concern.

49 Your counsel submitted that I could not be satisfied that you inflicted any more than two fatal blows to Mr Shaw. Therefore, the degree of violence implicit in your offending should be seen as 'moderate' in comparison to many other cases that come before this Court.

50 Dr Glengarry's evidence was that two blows to the torso and a third blow to the face would still not explain the totality of bruising to Mr Shaw.[17] Further, a minimum of two impacts to the torso would be required to explain the totality of rib fractures, but 'it could well be more'.[18] In Dr Glengarry's view, a single punch or kick to the left torso would be unlikely to explain the eight fractures on that side, given the 'wide area' in which the fractures were observed; however, she did concede it was possible that two impacts caused the totality of the rib fractures.[19]

51 It was not possible to date the bruising observed on Mr Shaw.[20] I also accept that Mr Shaw's facial injuries were not fatal and could have been caused by a fall to the floor.[21]

52 Nevertheless, on all the evidence I am satisfied beyond reasonable doubt that you inflicted more than two blows to Mr Shaw, and that those blows must have been of significant force. I cannot be satisfied of an exact number above that. I am satisfied beyond reasonable doubt that you intended to cause serious injury to Mr Shaw.

53 I cannot be satisfied beyond reasonable doubt that your attack on Mr Shaw was prolonged, nor that the blows came in the form of kicks. I accept that you did not use a weapon to assault Mr Shaw.

54 Even if the attack was not prolonged, its intensity and brutality is apparent from the sheer number and severity of injuries to Mr Shaw. Additionally, your assault was committed in circumstances where you, on your own admission, were fully aware that Mr Shaw was a physically weak man due to his poor health. In fact, you apparently considered yourself to be Mr Shaw's carer - an assertion which seems wholly contradictory to your cruel behaviour towards him in his final moments.

55 Mr Shaw was killed in his home, where he was entitled to feel safe. This is another factor which I consider adds to the objective seriousness of your offending.

56 Your counsel submitted that both the gravity of the offending and your moral culpability are reduced as you could not be expected to have the requisite foresight of the 'mechanism of death'. However, by your plea you accept that you participated in conduct that was unlawful and dangerous, and that a reasonable person in your position would have realised that assaulting Mr Shaw in the way you did exposed him to an appreciable risk of serious injury.

57 Given the circumstances I have outlined above, I consider this to be a moderately serious example of the offence of manslaughter.

58 In assessing your level of moral culpability, I consider that the attack was not premeditated. However, it is of significance that you made a conscious decision to simply abandon a dying or deceased man, rather than notifying the authorities or seeking medical assistance. This conduct can only be described as callous.

59 Although you did not attempt to cover up the fact that Mr Shaw had died, you consistently lied about your involvement to the police and to Mr Shaw's friends.

60 I have also had regard to the evidence of Dr Treeby and Ms Lechner, particularly regarding your diagnoses of antisocial personality disorder and borderline personality traits. However, based on the contents of the expert reports, any causal relationship between those impairments and the offending seems to be tenuous.

61 The evidence is that you were using substances heavily in the lead up to the offending. The explanation for your conduct is to be found in a proposition clearly advanced by Dr Treeby and Ms Lechner and manifested by you on a number of occasions in the past. You have a serious and chronic problem with substance and alcohol use, and it is this abuse of drugs and alcohol that appears to predispose you to poor emotional and behavioural control, and poor decision making.

62 You have demonstrated insight to both Ms Lechner and Dr Treeby that your drug use, and its impact on your behaviour, has 'always got [you] in trouble' and 'sends [you] to jail'. [22] You have never attended a rehabilitation program - an unwillingness which you apparently maintain to this day - and continue to assert that you like abusing substances because 'it alleviates boredom'.[23]

63 To put it bluntly, you are a violent and dangerous person when you are drug and alcohol affected. It seems you are cognisant of this fact, but nevertheless continue to indulge in substance abuse knowing it will likely lead to unlawful and violent behaviour.

64 Considering these factors and your criminal history, I consider your moral culpability to be of a very high degree.

Consideration of Verdins and Bugmy principles

65 It was not submitted that any aspects of your childhood disadvantage or the contents of either Dr Treeby or Ms Lechner's reports enlivened the principles in Bugmy[24] or Verdins,[25] respectively. Nevertheless, I have had regard to your personal circumstances, including your mental health diagnoses, experience with family violence as a young man, and generally troubled life, as part of the factual background to your offending.

66 Your counsel submitted that your prospects of rehabilitation could properly be assessed as 'good' or 'fair' to 'reasonable'.

67 It is difficult to reconcile this submission with your lack of motivation to engage in any rehabilitation programs. You have demonstrated an apathetic attitude towards changing your lifestyle and addressing your problematic substance use.

68 Further, your previous lengthy terms of imprisonment appear to have had little salutary effect on you and have not deterred you from what is clearly an escalation of violent offending.

69 In my view, these factors demonstrate that you have a propensity for violence, and an unwillingness to address the underlying issues which exacerbate your behaviour. In those circumstances, it is difficult to assess your prospects of rehabilitation as anything other than bleak.

70 I accept that your plea of guilty carries utilitarian value. You have avoided the need for what could have been a lengthy trial, and one which would no doubt have been distressing for the family and friends of Mr Shaw who were to be called as witnesses.

71 Your counsel invited me to conclude that your plea also carries with it a degree of remorse. That, alongside your comments to Dr Treeby and Ms Lechner regarding your devastation at having killed your 'best mate', is said to demonstrate a level of insight and a deep regret of your actions.

72 I have difficulty in assessing whether this remorse is genuine. Despite your plea, you have maintained a version of events to Ms Lechner that is fanciful considering Dr Glengarry's evidence. In fairness, as was put by your counsel, this may reflect your drug use at the time, or alternatively, of your psychological limitations. The evidence of Ms Lechner and Dr Treeby is that you have a strong tendency to externalise blame, are avoidant when examining your own short-comings, and may have a limited capacity for prosocial emotions such as guilt and empathy.[26]

73 In any event, any lack of remorse on your part is not an aggravating factor; rather, it is simply the absence of what would otherwise be a mitigating factor.[27]

74 In relation to the impact of COVID-19 on your time in custody, I accept that you are entitled to a very modest Worboyes[28] discount, noting that this Court's pandemic backlog has long since cleared, and custodial conditions have largely returned to what they were pre-pandemic.[29]

75 The prosecution drew my attention to a number of 'comparable' cases in determining the appropriate sentence in this matter.[30] I have had regard to each of the cases to the extent that they assist, given their different circumstances.

76 I now turn to the principles and purposes of sentencing as outlined by the Act.

77 As I have previously said, I am required to impose a custodial disposition.[31] In any event, a term of imprisonment attracting a non-parole period is clearly warranted given the seriousness of your offending.

78 I have had regard to s 5(3) of the Act, which reflects the common law principle of parsimony, when considering the appropriate sentence.

79 I have also had regard to the permissible sentencing purposes as outlined in the Act. Given your circumstances, community protection must assume paramount importance. Your history of seriously violent offending and poor prospects of rehabilitation are weighty factors which require the imposition of a substantial term of imprisonment to ensure the community are safeguarded against the risk you pose to their safety.

80 Similarly, the sentence I will impose seeks to address the need for specific deterrence. Although you have spent extended periods in prison in the past, I hope that - finally - this period of incarceration will have a salutary effect on you and dissuade you from continuing with your lifestyle of drug-fuelled violence.

81 The community should understand that your offending is denounced by the courts. The penalty I impose upon you reflects that you engaged in unlawful and dangerous behaviour which took the life of another human being. It recognises that Mr Shaw's family and friends will forever bear the sadness of his death.

83 For the offence of manslaughter, I sentence you to imprisonment for 10 years. I order that you serve eight years before becoming eligible for parole.

84 I further declare that you have served 780 days of pre-sentence detention, not including this day.

85 Pursuant to s 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 12 years' imprisonment with a non-parole period of 10 years.

[1] Exhibit P6 (Prosecution Opening), [11].

[3] Supplementary report of Dr Joanna Glengarry dated 19 June 2023, [2].

[7] Exhibit D3 (Report of Dr Matt Treeby dated 11 June 2024), [83], [86] ('Treeby Report').

[10] Exhibit D2 (Report of Ms Carla Lechner dated 25 March 2024), 1 ('Lechner Report'); Treeby Report, [86].

[21] T297.15-18, 299.11-14 (28 July 2023).

[22] Treeby Report, [50]; Lechner Report, 4.

[24] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[25] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[26] Lechner Report, 3-4; Treeby Report, [88].

[27] DPP v Ristevski [2019] VSCA 287, [9].

[28] Worboyes v The Queen [2021] VSCA 169.

[29] DPP v Batsanes & Smith [2023] VSC 693, [52].

[30] In particular, I found the cases of Director of Public Prosecutions v Tiumalu [2023] VSC 233 and Director of Public Prosecutions v Burns [2021] VSC 518 to be of assistance.

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