Crown v Accused

2 The plea followed a sentence indication hearing. The sentence I indicated at that hearing will be the sentence imposed today.

3 Andrew Truman was 44 years old at the time of his death. He suffered from cerebral palsy and an intellectual disability. Mr Truman would often come into the city to see support workers and friends. You and Mr Truman knew each other as you would both spend time in the Melbourne CBD.

4 At the time of the offending, you were homeless and living on the streets. You had known Mr Truman since 2021. According to you, Mr Truman would sometimes make sexual advances towards people, including young people, and would persist even if rejected. On occasion, again according to you, Mr Truman had sexually propositioned you. You rejected him but his advances annoyed you. However, while you were aggravated by Mr Truman's behaviour, you often ignored him. There was no history of you behaving violently, or threatening violence, towards him.

5 On 9 October 2024, at around 5:30pm, you were sitting down near the Elizabeth Street exit of Flinders Street Train Station, with your trolley of belongings behind you. Mr Truman exited through the turnstiles. He walked by and you commenced yelling abuse at him, repeatedly calling him a 'paedophile'. Mr Truman continued on his way, waited at the lights, and commenced crossing Flinders Street. You quickly got to your feet and followed him across the road. Mr Truman can be seen glancing back over his shoulder and walking briskly in an effort to get away from you. You continued to follow Mr Truman, who moved from one side of the footpath to the other in an attempt to avoid you.

6 The incident itself is captured on CCTV footage. You caught up to Mr Truman and continued to verbally abuse him as you both walked along Elizabeth Street. Mr Truman was on your left hand side. You were walking next to him and so close you were almost physically touching him. Suddenly, you used your left hand to 'backhand' Mr Truman, literally striking his face with the back of your hand. Mr Truman immediately fell forward. You walked on, then quickly turned around and looked down at Mr Truman, who was on the ground. He was moving. You returned to where you had been seated near the train station entrance, collected your belongings from the trolley and left the area.

7 Passers‑by went to assist Mr Truman and helped him to his feet. He was able to stand, but he was very unsteady and using the wall for support. Within eight minutes, he collapsed on the ground and never regained consciousness. He was taken to hospital but died within days, having been kept alive to enable organ donation.

8 At the time of the incident, you were wearing a distinctive purple jacket and yellow beanie. DNA taken from the shopping trolley handle was matched to you. Over the ensuing two weeks, police made multiple appeals to the public for information and asked you to hand yourself in. On 29 October, police attended at an apartment in Moonee Ponds and located you hiding behind the bathroom door. You told police that within a couple of days you knew you were wanted. You said the plan was to hand yourself in, but you wanted to 'get a couple of affairs in order' first. Your partner, Ms Rangi, is from New Zealand. She does not receive any type of benefit payment, and you were worried about her being left living on the streets alone.

9 You were arrested by police and made a 'no comment' record of interview. You were remanded into custody where you have remained since.

10 An autopsy was conducted on Mr Truman by Dr Archer. Dr Iles, who specialises in forensic neuropathology, also examined the deceased's brain. The cause of death was 'hypoxic ischaemic encephalopathy complicating head injuries'. However, the question of causation was not straightforward. Mr Truman had a number of minor soft tissue facial injuries that predated this incident, and were likely sustained during a separate altercation (that did not involve you) which occurred around 6 October. Mr Truman's cerebral palsy played no part in his death.

11 The blow you inflicted did not, of itself, cause any injury. There were no facial fractures. In the course of falling to the ground, Mr Truman's head hit the ground and/or the side of a building. Ambulance officers who attended the scene noted bleeding in the back of the deceased's throat, causing a complete obstruction of his airways. Dr Archer could not isolate the cause of the bleeding, but opined that trauma was the most likely explanation. It is likely that the bleeding and consequential obstruction of the deceased's throat led to a cardiac arrest, which in turn led to the hypoxic ischaemic brain injury. Two small subdural haemorrhages were located. They were caused by trauma, but did not appear to be severe enough to be the sole cause of the cardiac arrest. The subdural haemorrhages could have been caused by Mr Truman's head striking the ground or the side of a building, but Dr Iles could not exclude that they had occurred one or two days prior to this incident.

12 Mr Truman's brother and father both provided victim impact statements. Mr Truman was a colourful, kind and loving man who lived his life to the fullest. He was proud of being gay and intellectually disabled, and he advocated strongly for the rights of others. He particularly loved the Footscray Football Club and model trains. Mr Truman's father misses his son a great deal. He has been left with overwhelming sadness, bouts of depression and anger because of what you did. Mr Truman's brother is trying hard to process his grief, but has been left feeling alone, anxious and depressed. They both miss Mr Truman every day. They miss his phone calls and his visits, and occasions such as birthdays are now days of great sadness.

13 Mr Truman was a founding member of the Rainbow Rights and Advocacy group, who advocate for people with intellectual disabilities in the LGBTIQ+ community. His death has had a prolonged and distressing impact on his friends, his support workers and his wider community. They have all suffered a profound sense of loss, as well as shock, anger, fear and anxiety. Mr Truman was a vibrant man, who brought positive energy wherever he went. He is sadly missed, and those that knew him feel less safe and secure in the Melbourne CBD as a result of this incident.

14 It is clear from the victim impact statements that Mr Truman was a well‑liked, energetic and joyful man, who brought real happiness into the lives of his family, friends and community. They have all been left saddened and traumatised by his violent and senseless death, and their grief and pain is ongoing.

Personal circumstances and psychological material

15 You were born in Queensland in 1991 and are now 34 years old. Your parents separated when you were aged two, after which you lived with your mother. Within a year or two, your mother formed a relationship with your step‑father, Peter Napoli. You have several half‑siblings and step‑siblings, both older and younger, but are not in contact with any of your family members.

16 You had little or no meaningful relationship with your biological father. You remember living with him when you were aged around 14, having been placed there after spending time in care. Apparently, your father was an alcoholic and the placement only lasted three weeks.

17 Your childhood was marred by instability, violence, poverty and drug use. Your mother and stepfather moved frequently, spending time in Melbourne, Mildura and South Australia. You witnessed violence between them on a regular basis. They were also intermittently violent towards you. They both abused cannabis and amphetamines, and offered these drugs to you in your adolescence. The relationship between your mother and stepfather would frequently break down, and you recall sleeping in your mother's car when this occurred.

18 You were given no clear boundaries or rules, and struggled to understand what was expected of you. Your stepfather would often smash possessions in the home, and you started to smash your own property. As you got older, you became more oppositional and defiant. At around age 11, following an argument with your mother, you fled the house despite being told you were not to leave. You were later located by your stepfather, who punched you in the face and body, leaving you with black eyes and a broken nose. The assault was witnessed by a friend's parent, who notified the Department of Human Services ('DHS'). Your mother then willingly surrendered care of you, and you were placed in a foster home.

19 After six months in foster care, you returned home briefly, before being removed again from your mother's care aged 12. You were placed in approximately 14 different foster care homes between the ages of 11 and 15. You found the foster care environment to be poorly supervised, lacking genuine care and ultimately unsafe. In one placement, you were sexually abused by a 20-year-old male who was a friend of another child in care. In another foster placement, you were given alcohol and oxycontin by a male carer and shown pornography. Your next memory is one of waking up. Apparently, this incident was investigated by DHS but you are unaware of any police involvement.

20 Your education was unsurprisingly disrupted, due to frequent moves and, later, the involvement of DHS. You attended a number of different primary schools, and were in year 7 when you first entered foster care. You attended several secondary schools, and ceased formal education around the age of 14, when you were offered the option of remaining at school or commencing an apprenticeship as a car mechanic. You worked for around 18 months as an apprentice before losing your job after your employer learned of your criminal offending. You would have been around 16 years old at this time. The prior convictions I have do not include any Children's Court matters, but other material refers to a charge of assault that was dealt with in the Children's Court.

21 After losing your apprenticeship, your employment consisted of occasional seasonal work around the Mildura area, with long periods of unemployment. Since the age of 26, you have had little, if any, employment. Your living arrangements have also been very unstable throughout your life. Around age 16, you lived with your girlfriend for approximately eight months until the relationship ended. You tried living with your mother again in Mildura, but that arrangement rapidly broke down. At age 17, you commenced a relationship with Ms Smith, with whom you have two children. That relationship lasted approximately nine years but was largely dysfunctional, with mutual drug use, domestic violence, unstable accommodation arrangements, infidelity and intermittent periods of separation. Your children were exposed to considerable neglect. The relationship finally ended around 2016, and you have had no contact with Ms Smith or your children (who would be now aged around 14 and 15) for many years. The absence of any relationship with your children is a source of ongoing grief and guilt for you.

22 You have had a significant and long‑standing drug abuse problem, commencing with cannabis and amphetamines, which you were introduced to around the age of 14 while in foster care. You also recall using cannabis with your father, mother and stepfather. You first drank alcohol aged 12, and were drinking heavily by age 18. You began using heroin at age 16 and have used ever since, other than when you have been incarcerated. Your longest period of abstinence in the community was approximately eight months in 2020, while on a methadone program following your release from custody. You have also occasionally used methylamphetamine, and have recent prior convictions for possessing that drug.

23 You have a reasonably lengthy criminal history dating back to 2010. You have prior convictions for violence, including affray, recklessly cause injury and make threat to kill. You have multiple prior convictions for breaching family violence intervention orders. You have been sentenced to community correction orders in the past, which you have gone on to breach. You have also served a number of short terms of imprisonment, measured in months, including two months' imprisonment in 2017 in New South Wales for damaging property, stalking and breaching an apprehended violence order. Your most serious prior matter was in September 2018, when you were sentenced in the County Court for armed robbery and received 33 months' imprisonment with a non‑parole period of 21 months. You served the whole of that sentence as you had nowhere safe to go on parole, and feared returning to homelessness.

24 You have been in a relationship with Ms Rangi since 2023, and that relationship is continuing despite your remand. Ms Rangi also struggles with homelessness, but it seems the relationship is positive, and she attended court in support of you. You continue to speak over the telephone once or twice a week.

25 A psychological report authored by Mr Luke Armstrong was tendered on your behalf. He described your stepfather as 'viciously violent from age 11'. In his opinion, your problems in adulthood are personality and substance related, and reflect a very severe trauma legacy of family violence, neglect, exposure to drug use, instability and sexual abuse. You are of at least average intelligence, but your dysfunctional and traumatic childhood had a profound and negative effect on the development of your identity. He diagnosed you as suffering from a severe borderline personality disorder. Such a disorder makes you emotionally unstable, impulsive and prone to anger. From a young age, you were conditioned to living in chaotic environments, where violence or aggression was somewhat normalised.

26 In Mr Armstrong's opinion, your decision to strike Mr Truman may be tied to a number of factors. It seems that you had reached the end of your tolerance, and the combined effect of homelessness, borderline personality disorder and past sexual abuse contributed to your offending. You were also somewhat drug affected, and this would have played a part in your behaviour. In an addendum report, Mr Armstrong opined that while your personality disorder did impact your behaviour on this day, any causal relationship between your disorder and the offending is limited at best. Your counsel, sensibly, did not rely on principle 1 of Verdins.[1] In my view, your personality disorder provides, in part, an explanation for your behaviour, but it does not reduce your moral culpability for this offending in the way provided for by Verdins.[2]

27 Mr Armstrong found that you absolutely comprehend that you are responsible for Mr Truman's death, and recognise the profound effect his death will have on his family and the people who loved him. Mr Armstrong noted that prisons are unpredictable and stressful environments. For people with borderline personality disorder, prison is particularly destabilising, and you are at a significantly higher risk of being easily triggered or overwhelmed than a person who is not burdened by a severe personality disorder.[3] As a consequence, there is a significant risk your mental health will deteriorate over time.[4]

28 Your background of neglect and deprivation has shaped who you are, and is a relevant sentencing consideration. There is no specific link between your offending and your disadvantaged childhood, although the sexual abuse you suffered as a child did form part of the overall context of your offending. I accept that your moral culpability is less than an offender who had all the advantages of a stable and supportive home environment, but nonetheless went on to offend in this way.[5] I also accept that your severe personality disorder will make your time in custody more difficult than if you did not suffer from this impairment.[6] Both these findings mitigate the sentence I would have otherwise imposed.

29 You have pleaded guilty and that entitles you to a significant sentencing discount. While your plea was not entered at the earliest opportunity, it was entered well before trial. Your guilty plea has significant practical or utilitarian value. It has saved the community the cost and time of a trial, and has spared the witnesses in this case, including a number of bystanders, the stress of giving evidence in a criminal jury trial. It shows you have taken responsibility for your offending, and is evidence of some remorse. Overall, I accept that you are remorseful, and you genuinely regret your actions on this day.

30 There is one further reason why your plea of guilty attracts a sentencing discount, and that is that a conviction in this matter was by no means inevitable. The question of whether delivering a 'backhander' would be seen as carrying with it an appreciable risk of serious injury would have been a real issue at trial. Pleading guilty in circumstances where you might have had a viable defence is a mitigating matter.[7]

31 Your prospects of rehabilitation are somewhat difficult to assess. You have a severe borderline personality disorder, long‑standing drug addiction and a criminal history; none of which bode well for your future. On the other hand, you have completed a number of courses while in custody, you are committed to staying drug‑free, and you have expressed a willingness to try and improve your future prospects. You work as a unit billet, which is a position of trust in the prison system, and it seems you have managed well so far in the structured environment. Mr Armstrong notes that you are already self‑medicating with illicit tobacco while in prison, which is concerning as it evidences your propensity to return to unhelpful default coping strategies. Overall, I agree with the submission of your counsel that your prospects of rehabilitation are 'guarded but real', and your expressed motivation to engage with treatment is genuine.

32 Manslaughter is a serious crime, involving the taking of a human life. As has been said more than once, there is a wide range of conduct that may constitute the crime of manslaughter by unlawful and dangerous act. At one end of the spectrum, there is conduct that comes close to murder, such as where one person deliberately attacks another person with a weapon, intending to cause them serious injury. At the other end, there is conduct such as this. This was a single, spontaneous strike, delivered with the back of the hand. There was no planning or premeditation, no weapon used, and you were not in company with others. That said, you acted out of anger. Mr Truman posed no threat and you were in no immediate personal danger, real or perceived. You struck him from the side and without warning. It was a hard blow delivered on a busy public street. However, the blow was not particularly savage and the attack was not sustained in any way. In my view, your offending falls squarely at the low end of manslaughter. I accept you did not intend to cause any serious injury to Mr Truman, let alone kill him. I doubt any person who saw this incident would expect Mr Truman to die as a result of being struck with the back of your left hand.

33 General deterrence and denunciation remain important sentencing considerations. The head is a very vulnerable part of the human body, and delivering a forceful blow to a person's head is a dangerous thing to do, as this case highlights. You took the life of Mr Truman and, in sentencing you, I must denounce your conduct and punish you for your crime. Community protection and specific deterrence - that is, the need to deter you personally from committing further offences - are also relevant sentencing factors, given your criminal antecedents.

34 On the single charge of manslaughter, you are convicted and sentenced to six years and six months' imprisonment. I fix a non‑parole period of four years' imprisonment.

35 I declare you have served 416 days by way of pre‑sentence detention, not including today, such period to be reckoned as time already served under this sentence.

36 Pursuant to s 6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, the sentence I would have imposed is eight years' imprisonment and I would have fixed a non‑parole period of five years and six months.

[1] R v Verdins (2007) 16 VR 269; [2007] VSCA 102, principle 1 ('Verdins').

[2] Personality disorders may enliven the principles in Verdins - see Brown v The Queen [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA). However, cogent evidence establishing a realistic causal connection between the disorder and the offending is necessary to enliven principle 1.

[5] See Bugmy v The Queen (2013) 249 CLR 571, 594-595 [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37, where the High Court set out the two ways childhood deprivation are potentially relevant when sentencing. One is in a 'general' sense, meaning the moral culpability of an offender is likely to be less than an offender who had the advantage of a stable and regular home environment. The second is in a specific or 'causal' sense, where there is a link or nexus between the offending and childhood abuse or disadvantage which the offender experienced. See also DPP v Herrmann [2021] VSCA 160, [36]-[42] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[7] DPP v Bryan [2014] VSCA 54, [28].