Director of Public Prosecutions v Maskell

1. Burke often attended the Shell service station in Strathmerton late at night for food and conversation. He was doing so when your then partner, Fiona Taylor ("Taylor"), and your daughter, entered the service station store to purchase some items while you were putting petrol in the car. Before arriving at the service station, you had been drinking heavily and had consumed cannabis. Taylor had also been drinking, but not to the same extent. You and Taylor had been arguing on your trip to the service station, and also earlier that evening when attending a friend's home for dinner.
2. Upon your entry into the store, your daughter returned to the car. You observed that Taylor was making accusations against Burke in an aggressive and volatile manner. Taylor was accusing Burke of looking inappropriately at your daughter and was calling him a paedophile. There was absolutely no substance to these allegations, as verified later by your daughter and the service station attendant working at the time, Brenton North ("North").
3. There is little evidence of what was orally exchanged between you and Burke, save that you approached him and asked, "Do we have a problem?" Burke replied that there was no problem. Taylor then told you that Burke had been looking at your daughter. She continued to behave inappropriately towards Burke, as well as being aggressive towards both you and North.
4. Having walked away from Burke and Taylor, you returned to the counter and stood next to Taylor. Taylor was standing between you and Burke. You picked up the full bottle of sports drink in your left hand, moved it to your right hand, and then threw it past Taylor at Burke, who was standing only a short distance away.
5. The bottle not only hit Burke in the side of the head, but also knocked his glasses to the floor.
6. You then marched towards Burke. Burke had been knocked off balance but was still standing. You lent back and kicked his left hip with such force that Burke fell to the ground without being able to break his fall.
7. Taylor's son then became involved. He had only just entered the store and attempted to move you away from Burke. His attempt was unsuccessful. You returned to the location where Burke was lying and intentionally stood on and broke Burke's glasses.
8. You then walked away, but returned soon after. The sports drink bottle was lying on the floor, and you kicked it into the middle of Burke's body. You then berated Burke until you were pulled away by Taylor's son. Taylor then approached Burke and stood over him, also abusing him, before being pushed away by her son.
9. Soon after, the 3 of you left the store and drove away.
10. Given the location, it took some time for emergency services to arrive. Police were on the scene at around 1.30am. They found Burke conscious and alert. There is no suggestion that Burke lost consciousness at any time while he was at the service station.
11. An ambulance arrived at approximately 2.45am. After checking Burke's condition and taking his medical history, Burke was transported to the Goulburn Valley Hospital, where he arrived at 3.53am. While travelling in the ambulance, Burke suffered expressive dysphasia for a limited time. After an assessment of the seriousness of Burke's condition, he was transported later that morning to Royal Melbourne Hospital. In addition to the subdural haematoma and the fractured pelvis, Burke also suffered a laceration to his left earlobe, chest wall tenderness on his left side and quadrant tenderness on his right lower side.

1. Burke suffered a number of medical episodes while in hospital, some of which had no connection to the events of 8 August 2021. He died on 28 October 2021. The forensic pathologist who conducted the autopsy found that the cause of death was a "Sequelae of multiple intracranial haemorrhages due to blunt force trauma and subsequent rebleed in the setting of anticoagulation for pulmonary embolism". The emboli in Burke's lungs were the result of immobilisation; in turn, a consequence of his broken pelvis.

1. You were arrested on the afternoon of 8 August 2021, after you earlier had directed Taylor's son to contact police about the incident. Police interviewed you at Numurkah Police Station, during which you made various admissions. However, because of your level of intoxication, you were unable to recall very much about the relevant events. Although you recalled Burke falling to the ground, you believed it was as a result of you pushing him. At the end of the interview, you were charged with assault.
2. You were again arrested on 3 November 2021, being 6 days after Burke's death. In the police interview conducted at Shepparton Police Station you repeated your lack of recollection of the relevant events, based upon the fact that you were "very intoxicated". You took full responsibility for your actions, and accepted that whatever the closed-circuit television footage showed was what had happened. You accepted that your actions were both unlawful and dangerous, based upon what police had told you, although you elected not to view the video footage at the time when offered the opportunity to do so, and had not done so previously.

1. On 14 August 2023, you were found guilty of manslaughter by a jury. On 6 December 2023, you were sentenced to be imprisoned for a period of 8 years, with a minimum non-parole period of 5 years.[2]
2. On 11 July 2025, your conviction was set aside.[3] The Court of Appeal ordered a retrial.[4]
3. The previous sentence must be treated as a ceiling unless there are circumstances that require an increased sentence to be imposed. No such circumstances were submitted to exist, which was entirely appropriate. Despite this starting position, the court is required to again engage in the instinctive synthesis process to arrive at an appropriate sentence, and a lower sentence may be imposed.[5]
4. Having said this, some brief observations should be made about the previous sentence.
5. First, Lasry J could not be satisfied beyond reasonable doubt that you had a specific intention to hit Burke in the head with the bottle when you threw it.[6] A necessary part of the jury's verdict in the more recent trial is that the jury was so satisfied. To this extent, the gravity of your offending, including your moral culpability, must be considered to be more serious.
6. Secondly, after referring to the throwing of the bottle, his Honour stated that it 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".[7] This misstated what occurred. The videos of the incident demonstrated that you kicked Burke directly while he was still standing. Without determining the issue, it may have been considered by his Honour that kicking someone with significant force while on the ground would be more serious than kicking someone while they were still standing, albeit that the latter intentionally caused the victim to fall heavily to the ground.
7. Thirdly, his Honour accepted that you were remorseful to a degree for what happened and that you had genuine regret about it. He noted that you cooperated with police requests for an interview, although he also stated your acceptance of responsibility for what occurred, and for the death of Burke, was very limited.[8] Although I am engaged in the exercise of instinctive synthesis afresh, I note that I have formed a slightly different view from his Honour with respect to remorse.

1. You were born on 27 November 1978. Thus you were 42 at the time of the offending and are now 47 years of age.
2. You grew up in a loving home. You were the fourth child of 6 children. You lived in Footscray. Your father was employed in the railways and your mother worked as a bank teller.
3. Despite your happy early childhood, you struggled at school. You demonstrated various difficulties with reading, writing and literacy. You had difficulty concentrating. To assist, your grandfather would take you to school and remain with you there until you settled. Regrettably, he died when you were only 6 or 7 years old and you continued to struggle.
4. You left school after year 2 and were home schooled for grades 3 and 4, before attending at school again for grades 5 and 6. You continued to struggle.
5. You completed year 7 at Sunshine Technical School, but did not perform well academically. You moved to another school in Sunshine for year 8 but left halfway through that year, at the age of 14.
6. During this time, you were able to make a limited number of friends, with whom you were still maintaining occasional contact prior to your incarceration. You engaged in team sports, such as hockey and football. Leaving school coincided with your parents deciding to move the family to Strathmerton. You moved to and from Melbourne after this and were employed fruit picking, painting, labouring, fencing and doing other manual jobs.
7. You met your first wife when you were 17 years old. You were together for 15 years, purchased a house and had 3 children together from 2000 to 2006. Although the relationship was a sound one and your wife was a very good mother and partner, it broke down over time, particularly because of your mental deterioration and increased use of alcohol following the Black Saturday fires in 2009.
8. In your early 20s, you worked as a painter with your older brother. When you were 22 and he was 25, he was assaulted and bashed by 5 men. Soon after he was in a car accident and suffered significant injuries. After a week or so in hospital, his life support was disconnected. His loss had a significantly adverse effect upon you.
9. In 2002, you commenced employment with the Department of Sustainability and Environment in Nathalia, working in fire prevention. You enjoyed this work and did not drink alcohol while you were working.
10. Some 7 years later, you participated in the clearing and cleaning up of the aftermath of the Black Saturday bushfires. You saw firsthand a significant loss of life and the broader decimation the fires had caused.
11. These events were a tragic turning point in your life. Although you received medals and recognition for your contribution, by late November 2009 you were seriously struggling. You suffered a breakdown, as you could no longer cope. You took 3 months off work, but never returned to the department, as you found that prospect very triggering.
12. Amongst other things, this resulted in you separating from your wife, abandoning your home and disconnecting from your family. You struggled with alcoholism and homelessness.
13. In the ensuing months, you met your second partner and together you had your youngest daughter in February 2011. You moved to Queensland for 18 months, where you worked as a painter, and participated in the clean-up efforts after a cyclone. You then moved to the Northern Territory for a period, before returning to Victoria due to your mother's illness. You separated from your then partner, and assumed your position as primary carer for your daughter.
14. You are very close to your daughter. It is accepted that your imprisonment is very difficult for your daughter, who now lives with one of your sisters.
15. You then formed a relationship with Taylor, with whom you were living at the time of the offence. Your relationship with her has since broken down. You did not in any way blame her for the events of 8 August 2021, taking full responsibility for your conduct yourself.
16. You were remanded in custody on 3 November 2021 until you were granted bail on 31 March 2022. Bail was granted on the basis you were to reside with your sister in New South Wales, but this was revoked on 28 July 2022 following a breach of your conditions. You were involved in an altercation with your nephew, and were intoxicated at the time. A condition of your bail was that you were not to consume alcohol.

1. Although this is your first time in custody, you do have a limited criminal record. Between 1997 and 2017, you were convicted in Victoria of 3 offences, as a result of which you received relatively modest fines on each occasion. You also have 2 convictions in New South Wales in 2019 and 2020, again attracting only modest fines. While it was accepted by your counsel that this history is relevant, it was appropriately uncontroversial that it is of minor significance with respect to your sentencing.

1. In late September 2023, you were interviewed by a clinical and forensic psychologist. In a detailed report which set out your personal background in extensive detail, your genuine remorse for the consequences of your conduct was also recorded. This included observing how Burke's family had suffered during your first trial and how much you felt for them. It also recorded how you did not want any of your family members to attend the first trial (and none attended your second trial) because you accepted full responsibility for your conduct and did not want them to be harmed in any way by attending the trial themselves.
2. The report recorded that you do not exhibit significant levels of anger as a personality trait, suggesting that anger is not a persistent or enduring characteristic of your personality. That said, you have a history of "situational anger", particularly when inebriated. It was noted that your expressions of anger while intoxicated could have various underlying causes that may require further evaluation and support to address the relationship between alcohol consumption and anger expression.
3. The conclusion from your psychological assessment was that you do not exhibit violent ideation or intent and do not have symptoms of any major mental disorder. You are stable in affect, behaviour and cognition. It was noted at the time of the report you had been stable throughout the period of your incarceration. This has continued to be the position, and it would appear that your behaviour has been exemplary while in custody.
4. It was further concluded that you have very few personality features consistent with psychopathy, and that your overall score in this regard was significantly lower than the average offender. You were assessed to have a moderate risk of engaging in violent offending in the future and a low-level risk of engaging in serious violence (that is, violence that is intended to cause serious physical harm).
5. Based on various sources, it was recorded you suffer from post-traumatic stress disorder, with depression and anxiety. You exhibited a high degree of impairment in social, occupational and physical functioning after the onset of your illness following the Black Saturday bushfires. Your alcohol abuse was connected with your symptoms of being avoidant, including becoming estranged from loved ones to some extent.
6. The psychologist's opinion was that you continued to meet the diagnosis for post‑traumatic stress disorder at the time of your offending, but it was not possible to determine with a reasonable degree of accuracy the exact extent and effect of your post-traumatic stress disorder diagnosis as at August 2021. Further, it was considered that your post-traumatic stress disorder was not a direct cause of your offending. Rather, it was the abuse of alcohol that was more directly causative.
7. As at late September 2023, you still retained symptoms of this disorder, although you had stabilised during your period of incarceration. This was said to be largely as a result of avoidance from adverse stimuli, the absence of alcohol, regular meals, opportunities for physical exercise, and learning and employment opportunities.
8. You have also been diagnosed with alcohol use disorder, which was severe for an extended period of time. In the psychologist's opinion, as at September 2023, it was still severe and in early remission. Since that time, you have had no further intake of alcohol.
9. Your prognosis was unclear. It was considered that without treatment your symptoms were likely to resurface, particularly if you returned to alcohol abuse. It was noted that you were not very psychologically minded and had never engaged with a clinical psychologist.

1. The only purposes for which a sentence may be imposed are prescribed in the Sentencing Act.[9] These purposes include punishing the offender to an extent and in a manner which is just in all of the circumstances; deterring the offender or other persons from committing offences of the same or a similar character; establishing conditions which may facilitate the rehabilitation of the offender; manifesting the denunciation by the court of the conduct in question; and protecting the community from the offender.[10] In sentencing you, I must adhere to the principle of parsimony and must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[11]
2. I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence, any standard sentence for the offence, any current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, the impact of the offence on victims, and the presence of any aggravating or mitigating factors.[12] The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case.[13] Through a process of instinctive synthesis, I must balance these factors, which may point in different and conflicting directions, in order to arrive at a sentence that is just in all the circumstances.[14]

1. References were relied upon in demonstrating that you have many redeeming characteristics. A lifelong friend, another friend since high school, and an older sister, all spoke highly of you. Further, each referee referred to traumas that you have suffered and the adverse effects they have had upon you.
2. It is clear that you were a hard worker and a loyal family member and friend, and a contributor to the community. This remained the position until abuse of alcohol took its toll, with the onset of post-traumatic stress disorder and your attempt to self‑medicate.

K. Nature and gravity of your offending, and your moral culpability and responsibility

1. As already touched upon, the gravity of your offending in throwing the bottle at Burke must be considered more severe because the jury's verdict necessarily carried with it a factual finding that you intended to throw the bottle at his head.[15] Further, insofar as your offending concerned kicking Burke, the verdict carried with it a further finding that you intended to kick him to the ground.[16]
2. The gravity must also be considered in light of the fact that Burke was an elderly man who did nothing to provoke or elevate the situation, despite the vitriol that was directed towards him by Taylor and, to a lesser extent, you. Your violent attack occurred late at night in a public place. Members of our community should feel entitled to attend such places at any hour without the fear of a gratuitous assault.
3. Further, your offending was objectively worse because you stomped on Burke's glasses, kicked the bottle into him and then stood over him, pointing your finger at him and berating him. You then left the scene without any concern for Burke's wellbeing, despite the fact that you had inflicted considerable harm. In such circumstances, your moral culpability was high.
4. I agree with the prosecution's submission that the objective gravity of your offending was also relatively high. I also agree with your counsel accepting that your intoxication did not reduce the level of your moral culpability.
5. However, to put the offending in context, your conduct was far less serious than conduct the subject of many other cases involving manslaughter.

1. The court was referred to 7 cases concerned with sentences for manslaughter, 6 of which preceded the increase in the maximum penalty for manslaughter from 20 to 25 years' imprisonment.[17] While these cases are of some assistance, it was correctly acknowledged that manslaughter cases often involve vastly different circumstances to other cases. This case is no exception.
2. I have had regard to the cases referred to, together with the cases referred to by Lasry J in your previous sentence.[18]

1. You first were taken into custody on 3 November 2021. Accordingly, some of your time in custody was affected by the COVID-19 pandemic and the considerably onerous conditions imposed on prisoners during that time. The parties accepted that Lasry J was correct in considering this a relevant and significant matter to take into account in determining your sentence. I agree.[19]

1. More than 4 years have lapsed from the time you were charged with manslaughter. Your second trial did not commence until 17 February 2026. On any view, that delay is inordinate. Further, you have been subject to the strain and stresses of 2 criminal jury trials.
2. Delay of this order, however caused, is a powerful mitigating factor.[20]
3. Further, the delay between your first trial and your trial that concluded last week has enabled you to demonstrate significant progress towards your rehabilitation. For example, from December 2024 until your successful appeal in July 2025, you were incarcerated at the Beechworth Correctional Centre. You were classified as a "C1" prisoner and had the benefit of a permit to work on gardens in the community, working a nine-day fortnight. Further, you were on the cusp of being classified a "C2" prisoner, which would have permitted you to undertake escorted, and then eventually unescorted, leave in preparation for your parole.
4. Lasry J was previously guarded about your prospects of rehabilitation.[21] In light of your progress since that time, the prosecution appropriately accepted that the court could now be cautiously optimistic about your prospects, mindful of the attendant uncertainty about your ability to refrain from abusing alcohol when back in the community.[22]
5. Regrettably for you, upon your successful appeal, you were again treated as being on remand and were detained in the Melbourne Metropolitan Remand Centre. This had the consequence that your family were unable to visit you, as they had regularly done in Beechworth. Although you were able to work on the grounds at the remand centre, you changed to a yard billet more recently, on account of the stress of your second trial.

1. As already touched upon, you are the primary carer of your youngest daughter, who is now 15 years old. There was no dispute that imprisonment is more onerous in light of the anxiety you suffer by reason of your inability to care for your daughter.

1. Although you showed no remorse for your conduct at the time you offended, during your first police interview you showed obvious concern for Burke's wellbeing. This was demonstrated not only by you making an enquiry and then responding "not good" when informed of his injuries and that Burke had been taken to hospital, but also by the change in your tone upon learning this.
2. Your response during your first interview must also be viewed in light of the fact that it was you that initiated contact with police by getting Taylor's son to contact police and make yourself available for questioning.
3. Equally, in your second interview, you apologised and made it clear that you were not happy about what had happened. The video of your interview demonstrated that your unhappiness was not directed towards your own predicament, but rather what had happened to Burke.
4. More recently, in discussions with your assessing psychologist in September 2023, and in discussions with your family, you have unreservedly expressed your regret for what has occurred in terms that demonstrated your remorse.
5. Further, in the particular circumstances of this case, the fact that you chose to plead not guilty does not demonstrate any lack of remorse.
6. In sentencing you on the previous occasion, Lasry J found that he was not satisfied beyond reasonable doubt that you intended to hit Burke in the head when you threw the bottle.[23] If the jury in your second trial had come to the same view, you would have been found not guilty. Further, you have no memory of throwing the bottle or kicking Burke; ergo, you were not in any position to determine for yourself whether you had the intention that the prosecution was required to prove in relation to either of these acts.
7. In addition, Burke's death did not occur until 11½ weeks after you assaulted him. Again, you had no personal knowledge of what occurred in that extended period. There were very real issues concerning causation because the evidence unequivocally demonstrated that after he was assaulted there were significant medical conditions and events from which Burke suffered that also caused his death. In the context of the issues with respect to your intention referred to above, no lack of remorse was indicated merely because you sought to ventilate these further issues on causation as well.

1. Two victim impact statements were filed.
2. North gave a statement comprising only 8 lines of text. Despite its brevity, it was plain that North was scared for both his own safety and that of Burke at the time of your offending, and remained fearful after that time. Your attack on Burke has also had an ongoing effect on him, which has affected his ability to work.
3. Burke's sister, Suzanne Heppell, gave a heartfelt and moving statement in court. In delivering that statement in a respectful manner, she demonstrated the love and affection Burke attracted from his family, friends and the Strathmerton community more generally. She also spoke of her own suffering between the time of your assault and her brother's death, where she attended to his bedside when COVID-19 restrictions did not prevent her from doing so; and after Burke's death, which still torments her to this day. She was manifestly proud of her brother and is arranging to erect a statue in honour of both him and their father, who together consecutively occupied the position of postmaster at Strathmerton for some 66 years.
4. Her statement was a reminder of the grief and pain that a crime of this nature causes. These statements are relevant to your sentence as part of the instinctive synthesis when applying all the relevant sentencing principles to the facts of this case.

1. General and specific deterrence are both relevant considerations. With respect to general deterrence, it is important the court sends a message that unprovoked, gratuitous violence against vulnerable members of our community will not be tolerated. With respect to specific deterrence, it largely relates to your need to control your misuse of alcohol. The evidence strongly suggests that but for your intoxication on the night, it was highly unlikely that you would have offended.
2. In addition to these factors, denunciation, protection of the community more generally and just punishment must also be considered.

1. Taking each of the matters referred to above into account, including those in your favour, and balancing the factors set out in the Sentencing Act as best as I am able, for the unlawful killing of John Edward Burke, I sentence you to 7 years and 9 months' imprisonment. I fix a period of 4 years and 8 months' imprisonment as the period you must serve before you become eligible for parole.[24]
2. To repeat what was stated by Lasry J, your 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.
3. I declare that 1,470 days of imprisonment, not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[25]
4. No ancillary orders were sought.

[1] Sentencing Act, s 5(2H).

[2] Director of Public Prosecutions v Maskell [2023] VSC 689, [60] (Lasry J).

[3] Maskell v Director of Public Prosecutions [2025] VSCA 170, [299] (Emerton P, Kennedy and Kidd JJA).

[5] Director of Public Prosecutions v TY (No 2) [2009] VSCA 226; (2009) 24 VR 705, 723 [82] (Maxwell P, Ashley and Neave JJA).

[6] Director of Public Prosecutions v Maskell [2023] VSC 689, [54].

[9] Section 5(1).

[10] See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).

[11] Sentencing Act, s 5(3).

[12] Ibid, s 5(2). See also R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405 [45]-[46] (Warren CJ, Maxwell P and Redlich JA).

[13] Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[14] Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[15] See par 23 above.

[16] Cf par 24 above.

[17] See Crimes Act 1958 (Vic), s 5; Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic), s 3.

[18] Director of Public Prosecutions v Maskell [2023] VSC 689, fn 10.

[19] See also Director of Public Prosecutions v Ackerley (No 2) [2021] VSC 257, [44] (Incerti J); Astbury v The Queen (No 2) [2020] VSCA 158, [33] (Kaye, Niall and Weinberg JJA); Director of Public Prosecutions v Beattie [2020] VSC 229, [47]-[54] (Lasry J).

[20] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [35] (Maxwell P, with whom Chernov JA and Habersberger AJA agreed) and the cases there cited.

[21] Director of Public Prosecutions v Maskell [2023] VSC 689, [51].

[22] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400-401 [35]-[38], 402 [45] (Maxwell P, with whom Chernov JA and Habersberger AJA agreed), 403-404 [50] (Chernov JA).

[23] See par 23 above.

[24] Sentencing Act, ss 11(1)(b), 11A(4)(c). The proportion of the non-parole period when compared with your sentence is appropriate, including because of your continued good behaviour and rehabilitation since you were previously sentenced.

[25] Sentencing Act, s 18(1) and (4).